EPA-530/7-92-007
                                      Wednesday
                                      May 20, 1992
                                      Part II



                                      Environmental

                                      Protection  Agency

                                      40 CFR Parts 260, 261, 262, 264, and 268
                                     ^Hazardous Waste Management System;
                                      Identification and Listing of Hazardous
                                      Waste; Proposed Rule
                                         a^, IL (jOout-
                                                        Printed on Recycled Paper

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21450
Federal Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed  Rules
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 260, 261, 262, 264, and
268

[FRL-4130-5]

Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste

AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule, tentative
response to Chemical Manufacturers
Association petition, and request for
comments.

SUMMARY: The Environmental Protection
Agency (EPA) today is proposing two
approaches for amending its regulations
under the Resource Conservation and
Recovery Act (RCRA) for hazardous
waste identification. Today's proposed
rule is called the Hazardous  Waste
Identification Rule (HWIR). The first
approach would establish
concentration-based exemption criteria
(CBEC) for listed hazardous  wastes,
wastes mixtures, derivatives, and media
(including soils and ground-water)
contaminated with certain listed
hazardous wastes for exiting RCRA
Subtitle C management requirements.
The second approach proposed would
establish "characteristic" levels for
listed hazardous wastes, wastes
mixtures, derivatives, and media
 (including soils and ground-water)
 contaminated with certain listed
 hazardous wastes for both entering  and
 exiting RCRA Subtitle C via an
 expansion of the number of  toxic
 constituents  in the Toxicity
 Characteristics (TC) rule. This approach
 is referred to as the Expanded
 Characteristics Option (ECHO).
   Under the  CBEC approach, listed
 wastes and contaminated media
 meeting this  CBEC would no longer be
 subject to some of the hazardous waste
 management requirements under
 subtitle C of RCRA. The Agency is
 proposing that the exemption be self-
 implementing for both wastes and
 media. Generators wishing to  take
 advantage of the CBEC exemption must
 test their wastes, submit a notification
 and certification to the Agency
 providing specified information on the
 waste and, the process from which  the
 waste is generated, and waste
 management practices. No Agency
 review of sampling plans or waste
 analysis data, or prior Agency approval,
 would be required before wastes or
 media could be managed as non
 hazardous. Generators would be
 required to re-test their wastes or media
                        and re-submit notifications and
                        certifications annually for the first two
                        years, and every three years thereafter.
                          Under the ECHO approach, listed
                        wastes and contaminated media which
                        do not exhibit a characteristic would not
                        be regulated by the hazardous waste
                        management requirements under
                        subtitle C of RCRA. To implement this
                        approach, today's notice proposes to
                        revise the current TC rule to include as
                        many additional appendix viii
                        constituents as possible. For all listed
                        wastes whose constituents are included
                        in the expanded characteristics, the
                        mixture and derived-from rules would
                        not apply. Consistent with the current
                        TC, generators (whose hazard could be
                        evaluated with the expanded TC) could
                        test their wastes or rely on their
                        knowledge of the waste to determine if
                        their waste exhibited a characteristic.
                        Generators would be required to provide
                        the authorized State (or EPA) with a one
                        time notice for wastes  exiting the
                        subtitle C requirements.
                           The Agency has endeavored to
                        develop exemption requirements which
                        have a practical impact and make the
                        exemptions available to all generators
                        managing listed waste and
                        contaminated media meeting the
                        exemption levels proposed in today's
                        notice. The implementation provisions
                        of today's proposal reflect a balancing
                        of the Agency's informational needs for
                        oversight and enforcement with the
                        practical resource considerations of the
                        generator.
                           This notice also contains the Agency's
                         tentative response to a petition for
                         rulemaking submitted  by the Chemical
                         Manufacturers Association. The Agency
                         requests comment on all aspects of this
                         proposal.
                         DATES: EPA will accept public
                         comments on this proposed rule until
                         July 20,1992. Comments  postmarked
                         after this date may not be considered.
                         Any person may request a public
                         hearing on this proposal by filing a
                         request with Mr. David Bussard, whose
                         address appears below, by June 4,1992.
                         ADDRESSES: The public must send an
                         original and two copies of their
                         comments to: EPA RCRA Docket (S-212)
                         (OS-305), 401 M Street, SW.,
                         Washington, DC 20460. Place "Docket
                         number F-92-HWEP-FFFFF" on your
                         comments. The Office of Solid Waste
                         (OSW) docket is located in room 2427 at
                         the above address, and is open from 9
                         a.m. to 4 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 material from
                         any regulatory docket at a cost of $0.15
per page. Copies of the background
documents, Integrated Risk Information
System (IRIS) chemical files, and other
references (which are not readily
available) are available for viewing and
copying only in the OSW docket.
  Requests for a public hearing should
be addressed to Mr. David Bussard,
Director, Characterization and
Assessment Division, Office of Solid
Waste (OS-330), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT:
The RCRA/Superfund Hotline at (800)
424-9346 or at (202)  260-3000.  For
technical information contact Mr.
William A. Collins,  Jr., Office  of Solid
Waste (OS-333), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, (202) 260-1791.

SUPPLEMENTARY INFORMATION:

Preamble Outline
I. Authority
II. Background
  A. Overview—A National Waste
    Management System
  B. The Current Hazardous Waste
    Management Program
  C. Relationship to Today's Proposed Action
    to Current Hazardous Waste
    Identification Program
  D. Chemical Manufactures Association
    Rulemaking Petition
  E. Legal Authority for Defining Hazardous
    Waste Based on Actual Management
    Practices
III. Options for Establishing Hazardous
    Waste Identification Criteria
   A. Overview of Approaches
   B. Concentration-Based Exemption Criteria
     (CBEC) Approach
   C. Expanded Characteristics Option
     (ECHO)
   D. Contingent Management
   E. Contaminated Media
 IV. Waste Applicability
   A. Eligibility
   B. Waste Management Units
   C. Existing Regulatory Exemptions from the
     Mixture and Derived-from Rules
 V. Selection of Constituents of Concern
   A. Universe of Hazardous Constituents
   B. Development of the Exemption
     Constituent List
   C. Evaluation of Constituents Omitted from
     Exemption List
 VI. Health-Based Levels
   A. Health Effects
   1. Non-carcinogens
   2. Carcinogens
   B. Exemption Scenarios
   C. Exposure Assumptions
   1. Contaminated Groundwater Scenario
   2. Scenario for Wastes Not Placed in
     Controlled Units
 VII. Analysis and Limits of Detection
   A. Standardized Analytical Methods
   1. SW-846 Methods and Quality  Assurance
   2. Alternate Methods
   B. Need for Quantitation Limits

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               Federal Register  /  Vol. 57, No.  98 / Wednesday, May 20, 1992  /  Proposed Rules	21451
  C. Development of Exemption Quantitation
   Criteria (EQC)
VIII. Synthetic Precipitation Leaching
   Procedure
IX. Additional Exemption Criteria Under
   Consideration
X. Dilution
XI. Implementation
  A. Overview
  1. ECHO
  2. CBEC
  3. Contingent Management Exemptions
  B. Implementation of the ECHO Approach
  C. Implementation of the CBEC Approach
  1. Sampling Requirements for CBEC
   Exemptions
  2. Testing Requirements for CBEC
   Exemptions
  3. Notification Requirements
  4. When CBEC Exemptions Become
   Effective
  D. Implementation of Contingent
   Management
  1. Sampling Requirements for Contingent
   Management Exemptions
  2. Testing Requirements for Contingent
   Management Exemptions
  3. Notification Requirements for Contingent
   Management Exemptions
  4. When Contingent Management
   Exemptions Become Effective
  5. Duty of a Generator Claiming a
   Contingent Management Exemption to
   Manage Wastes in Accordance with the
   Management Standards of the Exemption
  E. Recordkeeping Requirements for ECHO,
   CBEC Exemptions and Contingent
   Management Exemptions
  F. Compliance Monitoring and Enforcement
   for ECHO, CBEC Exemptions and
   Contingent Management Exemptions
  1. Compliance Monitoring
  2. Enforcement
  G. Exports of Wastes Eligible for CBEC or
   Contingent Management Exemptions
  H. Public Participation in CBEC or
   Contingent Management Exemptions
XII. Other Proposed Changes to 40 CFR 261
XIII. Relationship to Other RCRA Regulatory
   Programs
  A. Characteristics of a Hazardous  Waste
  B. Requirements for Treatment, Storage,
   and Disposal Facilities and Interim
   Status Facilities
  C. Hazardous Waste Listings
  D. Delisting
  E. Closure
  F. Subtitle C Corrective Action
  G. Land Disposal Restriction Program
  H. RCRA Emission Standards
XIV. CERCLA Program
XV. State Authority
  A. Applicability of Rules in Authorized
   States
  B. Effect of State  Authorizations
XVI. Economic Assessment
  A. Background
  B. Potentially Affected Wastes
  1. Process Wastes
  2. Contaminated Media
  C. Estimated Costs Savings
  1. Health-Based Approach
  2. Expanded Characteristics Option
   (ECHO)
  3. Technology-Based Approach
  4. Contingent Management Approach
  5. Comparison of the Options
  D. Potential Health and Environmental
    Impacts
  E. Economic Impacts
  F. Limitations of the Analysis
  G. Data Needs—Requests for Comment
XVII. Regulatory Flexibility Act
XVIII. Paperwork Reduction Act
XIX. References
Appendices
I. Authority
  These regulations are proposed under the
authority of sections 1006, 2002(a), 3001, 3002,
3004 and 3006 of the Solid Waste Disposal
Act of 1970, as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and
Solid Waste Amendments of 84 (HSWA),  42
U.S.C. 6905, 6912(a), 6921, 6922, 6924 and 6926.

II. Background

A. Overview—A National Waste
Management System
  The Resource Conservation and
Recovery Act (RCRA), directs the
Environmental Protection Agency (EPA)
to develop a national  program governing
waste management that both promotes
the protection of human health and the
environment and conserves valuable
material and energy resources. This
national waste management program
involves all levels of government—
federal, state and local—all of whom
have major roles in the achievement  of
these national goals. The program
potentially encompasses a huge and
diverse universe of wastes  currently  an
estimated 13 billion tons per year—
including hazardous and nonhazardous
industrial wastes, special wastes [e.g.,
from mining, oil and gas production) and
municipal solid waste. These wastes
present varying degrees of risk if
mismanaged, thereby creating the need
for a waste management program able
to deal effectively with a variable
universe of was, risks, and waste
management practices.
  For the last decade, however, the
federal government has focused the bulk
of its efforts on defining and
implementing the hazardous waste
program under subtitle C of RCRA.
These efforts, along with increased
liability for cleanup costs under
CERCLA and comparable State statutes,
have resulted in dramatic changes in
how U.S. industries manage hazardous
waste. EPA's early regulatory decisions
in defining hazardous waste reached
broadly to ensure that wastes presenting
hazards were quickly brought into the
hazardous waste management system.
This was accomplished, in part, through
the promulgation of the "mixture" and
"derived-from" rules (40 CFR
261.3(a)(2)(iv) and 40 CFR 261.3(c)(2)(i),
respectively) which define as hazardous
certain waste mixtures and materials
derived from hazardous waste. The
Agency promulgated the "mixture" and
"derived-from" rules to close what it
believed were potentially major
loopholes in the subtitle C management
system (see 45 FR 33084, 33095).
However, as this definition has been
implemented many have recognized that
it has resulted in the regulation of
certain low hazard wastes as hazardous.
Many of these problems became of
increasing significance with changes in
RCRA, its regulations, and industrial
practices since 1980.
  In 1984 Congress amended RCRA to
ban all hazardous waste land disposal
unless and  until it had been with the
best demonstrated available technology
(BOAT). As treatment of hazardous
waste began, the volume of residuals
derived from treatment grew. These
residuals often have low concentrations
of hazardous constituents. EPA's
analysis indicates that millions of tons
of mixtures and derived-from residuals
that must be managed as hazardous
waste because of their history (i.e., what
they were mixed with or derived from)
may actually pose quite low hazards.
  Additionally, as EPA sought to list
those hazardous waste streams which
could pose  a threat to public health over
the past twelve years, important
differences have emerged between the
concentrations of the same hazardous
constituents in different waste streams.
This is because EPA bases a listing
determination on a variety of factors
and not just on concentrations of certain
hazardous  constituents. Some of these
factors (e.g., historic mismanagement
practices) are not quantifiable. The
overall result in the listing program is
that there are no eat concentrations
above which a waste is hazardous, and
below which it is not. Moreover,
because listings identify wastes based
on its origin or process, two waste
streams containing similar hazardous
constituents can have different
regulatory status (one being regulated
while the other is not) if they have a
different origin.
  Over  time, particularly with increased
treatment, the disparity between the
potential risks a material poses to
human health and the environment and
the degree of regulatory control over the
material has increased. Consistent with
its continuum of control approach, EPA
believes that low risk waste should not
be subject to full subtitle C regulation. It
is EPA's view that the subtitle C
program is  intended to address
situations where there may be
substantial present or potential to
human health or the environment from

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Federal  Register / Vol. 57, No. 98 / Wednesday,  May 20, 1992  /  Proposed Rules
mismanagement of waste (see RCRA
section 1004(5)(B)).
  Accordingly, the purpose of this
rulemaking is to take an initial step
toward defining wastes which do not
merit regulation under subtitle C, and
which can and will be safely managed
under other regulatory regimes. The first
step in what the Agency refers to as the
"RCRA Reform Initiative," is proposing
modifications to the RCRA regulatory
framework which will address over-
regulatory situations created by the
"mixture" and "derived-from" rules. The
Agency intends to promulgate regulatory
modifications no later than April 28,
1993 and requests comment on all the
options in today's notice. The Agency is
not opposed to implementing further
regulatory reforms that are both
desirable and technically feasible by
April 1993. The Agency requests
comment from the regulated community,
and all other interested parties,  on input
and information to assist in this effort.
  This rule and other ongoing and future
EPA actions will help to define a
continuum of control for waste
management. EPA favors an approach
that tailors waste management
requirements to the risk posed by waste.
The concept of a continuum of control
involves two essential elements. First, it
involves tailoring waste management
requirements to waste risk under a
coordinated, efficient management
structure. Waste management covers a
large variety of wastes posing diverse
risks—some which pose no risk, others
which pose significant risks and still
others that may pose some  risk under
certain circumstances. Under a
continuum of control, high hazard
wastes would require a high level of
control, and lower hazard wastes would
require corresponding lower levels of
control. Second, the continuum  also
involves defining the appropriate roles
 for various levels of government in
 regulating these wastes. For example,
 RCRA creates an assertive Federal role
 in setting national standards for the
 subtitle C hazardous waste system.
 However, RCRA establishes a more
 limited Federal role for management of
 solid wastes where risks are lower.
   EPA believes it is time to look at
 developing a viable continuum of
 control.  The RCRA national waste
 management program is nearly twelve
 years old and EPA, the States and the
 regulated community have gained
 significant experience in managing
 wastes.  EPA and the States have made
 significant strides in developing a
 regulatory framework for hazardous and
 nonhazardous wastes, particularly in
                        applying treatment technologies and
                        instituting waste reduction practices.
                          This proposal is one of a number of
                        activities which, as part of the RCRA
                        Reform Initiative the Agency is either
                        considering or has begun, will re-target
                        subtitle C management towards wastes
                        presenting the most significant risks. For
                        example, the Agency is re-addressing
                        the impact of the definition of solid
                        waste on hazardous waste recycling.
                        The goal  is to develop a program that
                        encourages recycling while continuing to
                        ensure that such recycling is
                        environmentally sound. Future activities
                        will reduce regulatory barriers to
                        hazardous waste recycling and tailor the
                        requirements to fit the actual risk posed.
                          In this  notice, EPA is proposing to
                        define the conditions under which
                        certain hazardous wastes no longer
                        present a substantial threat to human
                        health and the environment and
                        therefore do not merit regulation under
                        subtitle C of RCRA. EPA is considering
                        several conceptual approaches to
                        address this issue. The first approach is
                        to eventually set consistent
                        concentration-based levels for exiting
                        subtitle C management across all listed
                        waste streams and all hazardous
                        constituents. Under this approach, the
                        current waste identification system of
                        listings, characteristics, and the mixture
                        and derived-from rules would continue
                        to define "entry" to the subtitle C
                        program; this approach would define
                        new "exit" criteria for wastes and media
                        to leave subtitle C control and to be
                        managed under subtitle D of RCRA and
                        State and local waste management
                        requirements. There are several options
                        to determine these concentration-based
                        levels. One option is to set a single
                        exemption multiple above risk-based
                        concentration levels [i.e., the exemption
                        concentration for each hazardous
                        constituent is either equal to or a fixed
                        multiple above a health-based
                        concentration for that constituent). A
                        second option is to vary the multiple for
                        each hazardous constituent to reflect the
                        different chemical properties of the
                        constituent. A third option is to set
                        technology-based concentration levels
                         [i.e., the exemption concentration for
                         each hazardous constituent is based on
                         the Land Disposal Restriction
                         requirements at CFR part 268).
                           The second approach is to set
                         consistent characteristic levels for both
                         entering and exiting subtitle C
                         management across all waste streams.
                         For example, the hazardous waste
                         toxicity characteristics is the approach
                         EPA uses under RCRA to identify
                         testable parameters, such that any solid
                         waste which has a concentration above
the toxicity characteristics level must be
managed under subtitle C until it has a
concentration below the toxicity
characteristics level—the  "entrance" is
the same concentration as the "exit."
There are several options  in today's
notice that uses this approach to replace
the mixture and derived-from rules. One
method is to expand the hazardous
constituents regulated under the current
characteristics.
  In addition to these two structural
approaches, the Agency is also
considering the use of management
standards in conjunction with these
alternatives as a way of providing a
continuum of management. Under this
approach, wastes within certain
concentration ranges would be
contingently exempt from subtitle C
regulation if certain waste management
practices are followed. For example, if
these wastes are disposed in a lined
landfill or in areas of low precipitation,
then they could be exempted from
subtitle C regulation. Section III
discusses in greater detail the way in
which management standards could be
combined with each of the structural
approaches to provide a more effective
continuum of management for these
wastes. All of these approaches will be
discussed in more detail in the section
III of this proposal. All are in line with
the Agency's continuum of control
concept. Each has advantages and
disadvantages.
   In the near term, the Agency
recognizes the necessity of addressing,
in a timely manner, comments received
on the reinstatement by EPA of the
mixture  and derived-from rules
remanded on procedural grounds in
Shell Oil Company v. U.S.
Environmental Protection Agency, 950
F.2d 751 (D.C. Cir. 1991). EPA seeks
comment specifically on how well the
exemption approaches presented in
today's notice minimizes  or eliminates
the extent to which the existing mixture
and derived-from rules may operate to
regulate wastes which do not need to be
managed under subtitle C.
   The contingent management approach
is an approach that, by definition, is
tailored to provide different, less
 stringent exemption criteria for a waste
 if it is managed in a particular way.
 Under this approach, the level of control
 can directly tied to the risk posed by the
 waste. However, in the past, the Agency
 has found significant implementation
 obstacles to contingent management
 (see 55 FR 11807; March 29,1990). As a
 result, the Agency is actively engaged in
 identifying alternative ways to refine the
 nation's hazardous waste management

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               Federal Register / Vol. 57,  No. 98  /  Wednesday,  May 20, 1992  / Proposed Rules	21453
system and seeks comment on all the
approaches included in this notice.
  It is the Agency's intention to move
toward the implementation of a
continuum of control. Today's notice
represents a step in that direction. EPA
requests comment on all aspects  of this
proposal.

B. The Current Hazardous Wastes
Identification Program

1. Characteristics  and Listings
  Section 1004(5) of RCRA defined
"hazardous waste," in part, as a "solid
waste" which may "pose a substantial
present or potential hazard to human
health and the environment when
improperly treated, stored, transported,
or disposed of, or  otherwise managed."
Pursuant to subtitle C, the Agency was
required to develop and promulgate
criteria for identifying : characteristics
of hazardous waste and to list particular
wastes as hazardous.
  Currently, the Agency designates
wastes as hazardous in one of two
ways. One way is to  identify properties
or "characteristics" which, if exhibited
by a waste, indicate a potential hazard
if the waste is improperly managed. To
date, the Agency has identified four
types of characteristics: ignitability,
corrosivity, reactivity, and toxicity (see
55 FR 11798, March 29,1990, for the
expanded toxicity characteristics). Each
person generating a solid waste is
responsible for determining whether
such solid waste exhibits any of these
characteristics. Any solid waste that
exhibits any of the characteristics
remains hazardous until it no longer
exhibits the characteristics.
  The other way the  Agency designates
wastes as hazardous is by "listing." The
Agency has studied wastes generated by
many industrial activities and has
determined that these wastes should be
defined as hazardous waste (listed) for
various reasons, such as they contain
significant levels of toxic and or
carcinogenic constituents, manifest one
or more of the hazardous waste
characteristics, or have the  potential to
exert specific detrimental effects  on the
environment. As discussed in the
preambles and in associated dockets
accompanying the listings, EPA
determined that the listed wastes
typically and frequently contain
hazardous constituents at levels that
"pose a substantial present or potential
threat to human health or the
environment if the wastes are
improperly treated, stored, transported,
disposed of, or otherwise managed."
The wastes thus meet the definition of
"hazardous waste" under section 1004(5)
of RCRA. In general,  under EPA's
regulations, the Agency has interpreted
"posing a substantial threat" to mean
that these wastes contain toxic
constituents at levels many times
greater than acceptable for human
exposure and that these toxicants are
sufficiently mobile and persistent to
reach environmental or human
receptors.
  On May 19,1980, as part of the final
and interim final regulations
implementing section 3001 of RCRA,
EPA published two lists of hazardous
wastes: One composed of wastes
generated from non-specific sources
(e.g., spent solvents) and one composed
of wastes generated from specific
sources (e.g., distillation bottoms from
the production of benzyl chloride). The
Agency also published two lists of
commercial chemical products that are
hazardous wastes when discarded,
intended for discard, or spilled. These
four lists have been amended several
times, and are currently published in 40
CFR 261.31, 261.32, 261.33(e) and (f),
respectively.
2. Origins of the "Mixture", "Derived-
from" and "Contained-In" Rules
  On December 18,1978 (43 FR 58946),
EPA published a proposed rule that
outlined the Agency's  intended
approach to regulating hazardous waste
management, including a definition of
hazardous waste. Under this proposal, a
solid waste would have been defined as
a hazardous waste if it specified
characteristics, or if it was specifically
listed by EPA as a hazardous waste.
Furthermore, if a particular listed
hazardous waste stream did not exhibit
any of the characteristics, generators
could show it to be nonhazardous and
thus exempt from regulation as a
hazardous waste. In the proposed rule,
the Agency introduced eight possible
characteristics of hazardous waste, of
which four have been adopted
(ignitability, corrosivity, reactivity,  and
toxicity). The proposed rule also
included a proposal to list a number of
hazardous waste streams.
  On May 19, 1980 (45 FR 33066), the
Agency published final rules governing
the management of hazardous waste.
Under the final rules, the definition of
hazardous waste included characteristic
hazardous wastes, listed hazardous
wastes, and mixtures of solid wastes
and one or more listed hazardous
wastes. Wastes are characteristically
hazardous if they exhibit any of the four
characteristics, if they meet certain
toxicity criteria or if they contain certain
toxic constituents (see 40 CFR 261.10-
24).
  The provision governing mixtures of
solid waste and listed  hazardous waste
is known as the "mixture" rule
(currently 40 CFR 261.3(a)(2)(iv)}. As
promulgated in May 1980, it required
that a mixture be managed as hazardous
unless it has been delisted. "Delisting"
is a procedure whereby a person may
file a petition with EPA to remove a
specific waste from the hazardous waste
listing by demonstrating that the waste
in question does not pose a hazard (see
40 CFR 260.22).
  In addition, the May 19,1980, final
rules included the "derived-from" rule
(currently 40 CFR 261.3 (c)(2)(i) and
(d)(2)). It states that any solid waste
generated from the treatment, storage, or
disposal of a listed hazardous waste,
including any sludge, spill residue, ash,
emission control dust or leachate,
remains a hazardous waste unless or
until delisted.
  Further, 40 CFR 261.3(c)(2)(i) specifies
that any waste (such as rags, clothing,
absorbants) that contains a listed waste
must be managed as if it were
hazardous waste ("contained-in" rule).
  The Agency has interpreted the
"contained-in rule" to apply to media
that are not solid wastes, but contain a
listed waste (such as contaminated soil
and groundwater).1  That is, media that
are contaminated with hazardous waste
must be managed as if they were
hazardous wastes until they no longer
contain the listed waste, exhibit a
characteristic as defined at 40 CFR
261.3(a)(2)(i), or are  delisted. The
Agency has not issued any specific rules
as to when, or at what levels,
environmental media contaminated with
hazardous wastes are no longer
considered to "contain" those hazardous
wastes.
  The three rules described above
("derived-from", "mixture", and
"contained-in") apply regardless of the
concentrations and mobilities of
hazardous constituents in the "derived
from" or "mixture" waste, or in the
material or media containing the listed
waste.

3. Status of "Mixture" and "Derived-
from" Rules

  Numerous petitions for judicial review
were brought to challenge the May 19,
1980, final rules. One of the challenges
alleged that the definition of hazardous
waste proposed on December 18,1978,
did not adequately discuss the
"mixture" and "derived-from" rules
promulgated in the final regulations. The
petitioners thus argued that they were
  1 EPA's application of the "contained in rule" to
contaminated media was upheld by the D.C Circuit
Court of Appeals in Chemical Waste Management,
Inc. v. US EPA, 869 F.2d 1526 (D.C. Cir 1989).

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Federal  Register / Vol. 57, No.  98 / Wednesday, May 20, 1992 / Proposed Rules
deprived of adequate notice and
opportunity to comment as required by
the Administrative Procedures Act
(APA, 5 U.S.C. 553(b)). Most other issues
raised by the petitioners were resolved
by settlement, by subsequent statutory
or regulatory revisions, or by the failure
of petitioners to pursue them. However,
the question of whether the Agency gave
adequate notice of the "mixture" and
"derived-from" rules was not resolved.
  On December 6,1991, the court agreed
with the petitioners that the 1978
proposal did not adequately provide
notice of either rule and that the
petitioners thus did not have sufficient
opportunity to comment [Shell Oil Co. v.
EPA, 950 F.2d 751  (D.C. Cir. 1991)). The
court vacated the rules and remanded
them to the Agency because of
procedural defects but did not reach any
of the substantive issues raised by the
petitioners. However, the court also
recognized the problems with vacating
long-standing rules that are essential to
the hazardous waste management
program, and suggested that the Agency
could reinstate the rules "in whole or in
part" on an interim final basis under the
"good cause" exemption of the APA.
The  Agency, concerned about the
dangers that may be posed by a
discontinuity in the regulation of
hazardous waste, reinstated the rules on
an interim basis under section
553(b)(3)(B)  of the APA (57 FR 7628;
March 3, 1992).
   In the May 19, 1980, preamble to the
"mixture" and "derived-from" rules,
EPA recognized that designating all
waste mixtures and derived-from
wastes containing listed wastes as
hazardous wastes may lead to some
wastes unnecessarily being managed
under subtitle C (45 FR 33095). Given the
information available on industrial
wastes in 1980, and the waste
management practices in effect at that
time, the Agency was concerned with
generators evading subtitle C
requirements by simply commingling
listed wastes with nonhazardous solid
waste.  The Agency believed that the
delisting program would provide
individual facilities relief by excluding a
waste mixture and derived-from waste if
the facility could  show that the waste is
not  hazardous.
   With nearly twelve years of
experience implementing 40 CFR part
261, regulators  are in a much better
position to make judgments about the
degree of risk presented by certain
wastes. The Agency recognizes that the
 "mixture" and  "derived-from" rules
have resulted in unnecessarily stringent
 requirements for  certain low risk
 wastes. The reinstatement gives EPA the
                        time needed to sort through the
                        implications of alternative regulatory
                        approaches without jeopardizing human
                        health and the environment. Comments
                        received on both the reinstatement
                        notice and a notice of proposed
                        rulemaking soliciting comment on other
                        approaches to regulating waste mixture
                        and residues (57 FR 7636; March 3,1992)
                        will be made part of the record of this
                        final rule and will be considered in
                        combination with comments received on
                        today's proposed action.
                          Because EPA anticipates that it may
                        take up to one year to finalize any
                        alternative regulatory approaches, the
                        Agency added a termination date of
                        April 28, 1993 to the reinstated rules.
                        The unmodified "mixture" and "derived-
                        from" rules will expire on April 28,1993,
                        unless EPA, after considering  comments,
                        acts to change this provision.
                        C. Relationship of Today's Proposed
                        Action to  Current Hazardous  Waste
                        Identification Program
                          Currently, listed wastes (including
                        wastes derived from  or mixed with
                        listed waste) remain  hazardous unless
                        they are delisted according to general
                        procedures set forth in 40 CFR 260.20
                        and specific delisting procedures set
                        forth in 40 CFR 260.22. Today's proposal
                        presents a number of options  under
                        consideration by the Agency where
                        regulation of listed hazardous waste
                        under the jurisdiction of RCRA subtitle
                        C would cease  without the need for a
                        delisting petition. Today's proposal
                        addresses wastes, contaminated media,
                        and other materials (e.g., contaminated
                        rags,  absorbents) that, under current
                        rules, continue  to be  designated as
                        "hazardous wastes"  despite treatment
                        and detoxification that reduces
                        constituents concentrations to levels of
                        minimum risks. With respect to the
                        existing subtitle C continuum of control,
                        promulgation of one  of these options
                        would represent the  line  of demarcation
                        below which wastes would no longer
                        require subtitle C control.
                           Today's proposal provides  the
                        opportunity for self-implementing
                        exemption through demonstration that
                        wastes or contaminated media contain
                        relatively low levels of hazardous
                        constituents. While facilities generating
                        such wastes can petition for delisting by
                        rulemaking, today's proposal  would not
                        be as resource intensive  to the Agency
                        nor as time-consuming to the  regulated
                         community. In  addition, the Agency
                        hopes to create incentives for effective
                         and innovative treatment and reduce
                         unnecessary demand for subtitle C
                         disposal capacity.
                           In today's action, the Agency
                         proposes to remove  the termination
provision (i.e., 40 CFR 261.3(e)-Sunset
Provision) from the "mixture" and
"derived-from"  rules. Upon final
promulgation of one of the options
noticed in today's action, the "mixture"
and "derived-from" rules will remain,
but their scope will be limited. For the
set of options under the first conceptual
approach, the exemption levels would
supplement the current de-listing
process rules providing an easier way to
exempt a particular waste. For the set of
options under the second conceptual
approach, the mixture and derived-from
rules would not apply to any waste
which would otherwise be covered
under the characteristics approach.
These solid wastes would be managed
as hazardous as long as  they exhibit a
characteristic.

D. Chemical Manufacturers Association
Rulemaking Petition

  The Agency has received a
rulemaking petition from the Chemical
Manufacturers Association (CMA) to
establish concentration-based
exemption criteria for the mixture rule,
derived-from rule, and contaminated
media rule/interpretation." CMA
submitted this petition because it
believes that the mixture rule, derived-
from rule, and contaminated media rule/
interpretation are over-inclusive in that
they require hazardous waste
management of mixtures, residues and
contaminated media that contain
"innocuous" levels of hazardous
constituents. Because CMA's petition is
included as one of the options presented
in today's proposal (i.e., Option 1), the
Agency believes that today's notice
serves as a tentative response to this
petition,  in accordance with 40 CFR
260.20(c).
E. Legal Authority for Defining
Hazardous Waste Based on Actual
Management Practices

   As noted above, section 1004(5) of
RCRA defines "hazardous waste" to
include solid waste which, because of
its quantity, concentration, or
characteristics "may *  * * pose a
substantial present or potential hazard
to human health or the environment
when improperly treated, stored,
transported, or disposed of, or otherwise
managed." Section 3001 required EPA  to
establish criteria for listing or otherwise
identifying hazardous waste "which
should be subject to" subtitle C
hazardous waste management
requirements, taking into account a
variety of hazardous properties, such as
toxicity, persistence, and degradability.
EPA  has established the criteria for
listing hazardous waste in 40 CFR 261.11

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               Federal Register / Vol. 57, No.  98 / Wednesday,  May 20, 1992  /  Proposed Rules	21455
and for identifying hazardous waste
characteristics in 40 CFR 261.10.
  Since 1980, EPA has implemented the
section 1004(5) definition by considering
the plausible types of mismanagement
that a waste could be subject to and
determining the hazards presented by
the waste under that scenario. See 45 FR
33113 (May 19,1980); 55 FR 11800 (March
29,1990). Thus, in analyzing whether a
waste should be identified as
"hazardous" EPA has not generally
determined whether that waste is in fact
mismanaged under the scenario, but
only whether it could be. Thus, EPA's
hazardous waste definitions capture
wastes which could be hazardous if
mismanaged, not wastes which are
necessarily hazardous under all
circumstances.
  As explained in more detail below,
however, EPA does not believe that the
statute requires that the hazardous
waste designation always assume
mismanagement of the waste in
question. Moreover, because the Agency
has acquired 12 years  of experience in
implementing the hazardous  waste
program and a more detailed knowledge
concerning actual waste management
practices, the Agency believes that it is
appropriate to begin tailoring the scope
of its hazardous waste program to
reflect how wastes are actually
managed, rather than how they might be
managed under a worst-case analysis.
Today's rule reflects this more tailored
approach.
  This approach is authorized by the
definition of "hazardous waste" in
RCRA section 1004(5). Section 1004(5)(B)
defines as "hazardous" wastes which
may present a hazard  "when
mismanaged," thus authorizing EPA to
determine whether,  and under what
conditions, a waste  may present a
hazard and regulating the waste only
under such conditions, i.e., when
mismanaged. (Note that this in contrast
to section 1004(5)(A) under which EPA
regulates as hazardous wastes which
are inherently hazardous  no  matter how
managed.)
  In addition, EPA believes that section
3001 provides EPA with the flexibility to
consider the necessity for, and
appropriateness of, hazardous waste
regulation for wastes which meet the
section 1004(5) criteria. Section 3001
specifies that EPA must make a
determination of whether such wastes
"should" be subject to the provisions of
subtitle C in determining whether to list
or otherwise identify wastes as
hazardous under that section. Thus,
section 3001 authorizes EPA  to
determine whether subtitle C regulation
is appropriate in determining whether to
designate a  waste as "hazardous." EPA
thus may determine that subtitle C
regulation is not appropriate because
such wastes are not "hazardous" when
properly managed and, based on
information available to the Agency,
unlikely to be mismanaged. Regulation
of such wastes under subtitle C would
not be "necessary to protect human
health or the environment" (see RCRA
sections 1003(a)(4), 3002(a), 3003(a),
3004(a)).
  Moreover, EPA interprets its existing
regulatory criteria for listing hazardous
waste as providing the flexibility to
consider actual management of the
waste in order to determine whether to
designate such waste as "hazardous."
EPA's listing criteria at 40 CFR 261.11
include such factors as the plausible
types of improper management to which
the waste could be subjected and
actions taken by other programs to
address the hazards posed by the waste
and any other appropriate factors.
Where mismanagement of the waste is
likely to be implausible or has been
adequately addressed by other
programs, EPA need not list the waste
as hazardous under the regulatory
criteria. Similarly, EPA's criteria for
identifying hazardous  waste
characteristics codifies the statutory
definition of hazardous waste and thus
provides EPA with the same flexibility
accorded by the statute to consider
actual management practices in
determining whether a waste is
hazardous.
III. Options for Establishing Hazardous
Waste Identification Criteria
A. Overview of Approaches
  The purpose of today's proposal is to
establish criteria where the regulation of
listed hazardous waste under the
jurisdiction of RCRA subtitle C,  the
federal hazardous waste management
system,  ceases. The first approach
presented proposes consistent and
generic risk-based exemption levels for
exiting subtitle C management. These
exempting criteria can be based on risk,
technological performance, or a
combination of both. The second
approach proposes consistent and
generic exemption levels for both
entering and exiting subtitle C
management using hazardous waste
characteristics. To implement this
approach, new characteristics could be
added or the scope of  the existing
characteristics expanded, or both.
Additionally, a contingent management
system based on the concept that
disposal can modify the actual risk
posed by a waste, could augment either
approach and is proposed as well.
Lastly, three alternatives are proposed
for establishing exemption levels for
media contaminated with listed
hazardous waste. The Agency is
proposing and setting forth these
approaches for comment today.
  The first approach  involves setting a
single risk-based number for toxicants
in the listed waste. To exit subtitle C
regulations as a listed hazardous waste,
the waste (and waste mixed with,
derived from, or containing listed
wastes) 2 toxicants must be in
concentrations less than or equal to the
numeric exemption criteria. These
concentration-based  exemption criteria
(CBEC) could be determined by
estimates of residual  risk, by the
performance of treatment technologies,
or by some combination of both.
  The second approach relies on the
current characteristics approach,
modified by expanding the number of
toxic constituents listed in Toxicity
Characteristics (TC).  Since hazardous
waste characteristics determine both
entry and exit from the hazardous waste
management system,  any waste, waste
mixture,  treatment residual, contained-
in waste, or contaminated media could
exit subtitle  C control if the generator
determines that a representative sample
of the waste no longer exhibits any of
the four types of characteristics:
ignitability, corrosivity, reactivity, and
toxicity. Today's notice presents an
option under this approach—the
Enhanced Characteristics Option
(ECHO)—in which the Toxicity
Characteristics is expanded. Since
ECHO would expand the scope of a
characteristic, this approach is the only
one presented today  which could bring
some new solid waste streams into
subtitle C, while deregulating
substantial volumes of wastes currently
managed under subtitle C.
  These two approaches could be
implemented in combination with a
"contingent management" approach
under which a waste  would be
exempted from subtitle C contingent
upon compliance with certain waste
management practices. For example,
under the first approach wastes with
concentrations higher than the CBEC
levels could be conditionally exempt
from subtitle C if the  waste is managed
in certain controlled  environments.
Under the second approach, wastes
which are characteristically hazardous
under ECHO could be found
conditionally not characteristic if
  2 This approach would be an alternative means
for exiting subtitle C and would not replace the
generators right to petition the Agency to exempt a
specific listed hazardous waste (i.e., delist) from
regulation under RCRA subtitle C.

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21456         Federal Register  /  Vol. 57,  No. 98 / Wednesday, May  20, 1992 / Proposed Rules
managed under certain conditions. This
approach could entail simple
management requirements or could be
very detailed and address a variety of
specific management practices. Later
sections of this preamble present
different contingent management
options.
  There are two issues that impact both
the CBEC and ECHO approaches. First,
an important factor in determining the
impact of today's proposal is the
relationship between the concentration-
based exemption criteria and ECHO
levels proposed today and the RCRA
land disposal restriction standards.
  Section 3004(m) of RCRA requires that
hazardous wastes be treated to a level
at which "short-term and long-term
threats to human health or the
environment are minimized" prior to
land disposal. In the "Third Third" land
disposal restriction rulemaking, 55 FR
22520 (June 1,1990), the Agency
explained in detail its interpretation that
the statute leaves to EPA the
determination of whether the LDR
treatment standards attach at the point
of waste generation or at the point of
disposal. Id. at 22651-22563.
   In the Third Third rule, EPA explained
why the Agency believed that the point
of generation approach would generally
better meet the goals and purposes of
the LDR program than a point of
disposal approach. Id. at 22652.
However, EPA also explained that the
point of disposal approach is
appropriate in certain circumstances,
such as when applying LDRs at the point
of generation would seriously disrupt
the implementation of other
environmental regulatory programs. Id.
at 22653. One of the policy rationales for
exercising its discretion under the
statute to generally require full BDAT
treatment for wastes that are hazardous
at the point of generation was the
inadequacy of existing hazardous waste
identification programs; specifically
wastes identified as hazardous for a
particular characteristic might still be
toxic, due to the presence of non-TC
constituents, even when that
 characteristic is removed. See Id. at
 22652. Such waste thus would not meet
 the section 3004(m) "minimize threat"
 land disposal standard even after it is
 no longer "hazardous".
   The decision concerning which LDR
 approach to utilize with respect to the
 low hazard waste subject to today's
 proposal may significantly affect the
 practical impact of the options proposed
 today. For example, a waste which is
 hazardous when generated but treated
 to CBEC or ECHO levels may still, under
 a point of generation approach, require
 treatment to any more stringent LDR
level prior to land disposal. Thus, many
CBEC or ECHO wastes may require LDR
treatment prior to disposal in a subtitle
D unit.
  However, to the extent that the CBEC
or ECHO proposal here provide a more
comprehensive way of determining the
hazards presented by hazardous wastes,
requiring treatment beyond the levels at
which a waste is hazardous may no
longer be necessary to "minimize
threats." For that reason, EPA is taking
comment on some aspects of adopting
the point of disposal as the point at
which LDR standards attach as one
alternative way of addressing the
interaction between the CBEC and
ECHO approaches proposed today and
the RCRA land disposal restrictions. For
example, the Agency is considering this
alternative in addressing the problems
raised by the cleanup of contaminated
media (see further discussion in section
III. E.) In addition, under the ECHO
approach, EPA is requesting comment
on this alternative for addressing the
issues raised by  the land disposal
restrictions'  relationship to
characteristic wastes. EPA requests
comment on this issue.
  Section 3004(m) of RCRA provides
that treatment standards for hazardous
waste prior to land disposal cannot be
below levels at which "short-term and
long-term threats to human health and
the environment are minimized." See
also HWTC v. EPA  (HWTC III), 886 F.2d
355, 362 (D.C. Cir. 1989), cert, denied 111
S.Ct. 139 (1990). To date, the Agency has
been unable to define risk-based levels
which meet  the section 3004(m)
standard. See  55 FR 6640 (February 26,
1990). EPA expects to address the issue
of the relationship between the BDAT
standards and the section 3004(m)
"minimize threat" standard in more
detail in the upcoming LDR "phase two"
proposal,  to be published this summer.
However, EPA also recognizes that the
levels proposed  in this rule can be
related to the  "minimize threat"
standard; therefore, as a second way  of
addressing this issue, the Agency is
proposing that any exemption criteria
promulgated will become minimized
threat levels for the LDR program. If the
CBEC or ECHO  levels are also the
 "minimize threat" standard, then wastes
 that are treated  to levels below the
 exemption level would also have met
 their obligation  under the LDR program
 and could accordingly be land disposed
 without further treatment. The Agency
 asks for comment on whether the levels
 proposed in this rule should be the
 "minimize threat" level that bounds the
 LDR treatment standards.
   The second issue concerns State
 programs. To the extent any of the
options are a narrowing in scope of the,
or establishing a less stringent, federal
program, these new exemptions will
have little practical impact unless and
until adopted by States. As a result, it is
very important to the Agency that we
receive State input on the options
presented here. EPA intends to work
closely with its counterparts in State
governments to develop and implement
HWIR options.
  The following options discussed in
today's proposal are presented for
comment. The Agency specifically
requests comment on all aspects of
these options, including the exposure
scenarios on which the levels were
developed as well as the levels
themselves.
B. Concentration-Based Exemption
Criteria (CBEC) Approach

  As stated above, the first approach
involves establishing a single set of
numeric criteria where RCRA subtitle C
jurisdiction ends for listed wastes.
Under this set  of options, numeric levels
for wastes can be set generically for  all
constituents found in waste streams.
When a waste contains constituents  at
concentrations at or below these levels,
management requirements are left to the
subtitle D program and the States. The
levels could be a risk-based number, a
technology-based number, or a
combination of the two. Wastes that
contain toxicants at concentrations
below the exemption levels would not
be  regulated under subtitle C.
  Under this approach, the Agency is
proposing to establish generic
exemption levels for hazardous
constituents found in listed hazardous
wastes using a risk-based approach.
These exemption levels represent
baseline levels (i.e., levels that the
Agency believes are not hazardous, and
therefore, should not be regulated under
the subtitle C program). These numbers,
for the first three options, would apply
generically to  all wastes regardless of
their ultimate disposal manner or their
origin. Although there are many ways to
define the point where the risk
presented by wastes is below the
hazardous level that determines subtitle
C jurisdiction, today's notice offers three
options. The Agency has evaluated the
risk for all options in terms of the  hazard
posed to humans due to groundwater
 contaminated by toxic constituents
 leaching from a waste, with the
groundwater used as source of drinking
 water by an individual over a period of
 time. The proposed risk-based
 exemption levels are based on
 Maximum Contaminant Levels (MCLs)
 proposed or promulgated under the Safe

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               Federal Register / Vol.  57, No. 98 /  Wednesday, May 20. 1992  /  Proposed Rules        21457
Drinking Water Act. Otherwise, Risk
Specific Doses (RSDs) and Reference
Doses (RfDs) are utilized for carcinogens
and systemic toxicants, respectively.
Listed waste which leaches toxicants at
concentrations lower than the
exemption levels would no longer be
regulated as hazardous. Toxicant leach
levels in waste are determined using the
Toxicity Characteristics Leaching
Procedure (TCLP) The TCLP is
discussed in section VI of today's notice.
Appendix 1 lists the health-based
number for each of toxicant in
alphabetical order. Alternative
exemption levels derived from the same
health-based numbers are  included in
this table as well.
  An alternative exposure scenario
which could be evaluated is direct
human exposure to the waste through
incidental ingestion. The Agency
requests comment on the
appropriateness of the contaminated
groundwater exposure scenario and
alternative scenarios. Exposure
assumptions, scenarios,  and simulation
techniques are fully discussed in section
VI of this document.
  The Agency will rely on scientific
evidence used in past rulemakings (i.e.,
the TC rule) 3 and the information
presented in section VI of today's
proposal to evaluate the CBEC levels.
However, the Agency today requests
comment on two different approaches to
setting those levels: a single multiplier
(100,10,1, etc.) for all constituents or an
individual multiplier for each
constituent.
  Under the first of these alternatives,
EPA would  assign a single multiplier for
each constituent. A multiplier of 100 was
used for the constituents in the 1980
Extraction Procedure (EP), for example.
As discussed in section  VI, this multiple
incorporates the expected physical
dilution and attenuation of a constituent.
This approach assumes  that the same
value adequately represents the dilution
and attenuation characteristics of all the
constituents in different chemical
classes—metals, aromatics, phenols,
and others.  A single multiplier may
reduce  the administrative burden and
complexity  for the Agency and the
regulated community.
  EPA prefers the use of a single
multiplier for all constituents because it
could easily be implemented within the
timeframe EPA has set for promulgating
interim improvements to the mixture
  3 The Toxicity Characteristics (TC) rule (see 55
 FR 11826, March 39,1990) currently list 39 different
 constituents and whose health-based number are
 multiplied by 100. EPA deferred additional organic
 constituents until better health data and models
 became available.
and derived-from rules. The Agency
requests comments on this alternative
and the appropriate level of the
multiplier.
  Under the second alternative, EPA
would determine constituent-specific
multipliers for all constituents. For
example, EPA could determine separate
multipliers for each constituent (i.e., the
multiplier for silver could be 10, while
the multiplier for phenol could be 10,000,
and so on for each appendix VIII
constituent). Recently, EPA has been
developing constituent-specific
multipliers (see 55 FR 11798;  March 29,
1990). While a major expansion of this
effort could pose significant challenges
to the Agency's resources in the short-
run, it would also allow EPA to
incorporate available information on
contaminant fate and transport in the
environment. It would also better tailor
the regulation of a constituent to the
potential threat that a chemical poses to
human health and the environment
through different routes of exposure.
The Agency requests comments on this
alternative.
  EPA believes there are at least three
choices for developing levels for CBEC.
One is to determine levels the Agency is
very confident do not pose a risk, such
as using a multiplier of 1  to develop
regulatory levels from MCLs. EPA
believes that a multiplier of 10 might
also be justified under this approach; it
is derived from using the EPACML
model and the assumptions described in
more detail in section VI, using the 95th
percentile on the curve. This percentile
is higher (more protective) than the level
used in deriving TC levels. The
multiplier of 100 represents another
approach which is to develop a level
that EPA concludes is the demarcation
of where the Federal interest in
regulating wastes ends. Under this
approach, the multiplier of 100 is based
on using the 85th percentile as was done
to develop TC levels.
Option 1: Health-based Numbers
(HBN)xlOO
   The first option would establish the
generic exemption levels one hundred
times the health-based number. That is,
listed waste which leaches toxicants at
levels one hundred times or less the
corresponding health-based number
would no longer be regulated as listed
hazardous wastes. This option was
suggested to the Agency by the
Chemical Manufactures Association
(CMA) in a petition for rulemaking in
1989. This option is also the same
approach that was used to establish TC
levels. At that time, EPA considered
these to be levels which  identify wastes
that are "clearly hazardous".
  EPA is considering CBEC at 100 times
health-based numbers for a number of
reasons. First, such an approach would
harmonize the listings and
characteristics programs by using the
same number used for the TC. EPA has
received numerous requests for a
straight forward approach to identifying
hazardous wastes. Choosing a multiplier
of 100 would unify both the TC and the
exit level for listed waste thereby
simplifying hazardous waste
identification while allowing for a
concentration-based exemption. (If
future modifications to the TC involve
changing the multipliers, EPA currently
expects that the Agency would consider
making parallel changes to the CBEC
levels.)
  A multiplier of 100 corresponds to a
cumulative frequency close to the 85th
percentile from the EPACML
simulations used to support the TC rule.
In other words, in this exposure
scenario, an estimated 15 percent of the
drinking water wells closest to unlined
municipal landfills could have
contaminated concentrations above
MCLs, if the landfill within a mile of the
well receives wastes at or just below the
possible exemption levels of 100 times
the health-based numbers. As the
distance between a landfill and a well
increases, the probability of exceeding
MCLs decreases. It is important to note
that the information on landfills used for
this analysis is at least six years  old,
and conditions  such as size, proximity to
drinking water wells, management
practices, disposal practices, etc, may
have changed.
Option2:HBNxlO

  Another option for establishing
numeric exemption criteria would be
setting criteria at ten times the health-
based numbers. That is, listed waste
which leaches toxicants at levels ten
times or less the corresponding health-
based number would no longer be
considered hazardous. Therefore, this
option is slightly more protective than
the delisting program which exempts
specific listed hazardous waste from
subtitle C regulation using somewhat
more conservative multipliers depending
on volume (see delisting discussion,
section XIII). A multiplier of 10
corresponds to approximately the 95th
percentile levels generated from
EPACML simulations used to support
the TC. This means that an estimated 5
percent of the wells closest to unlined
municipal landfills will experience
concentrations of leachate above health-
based numbers, as surveyed in 1986
(EPA Solid Waste (subtitle D) Landfill
Survey, 1986). At a multiplier of 10, EPA

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believes it is possible, but unlikely, that
any individual will be continuously
exposed at concentration above health-
based levels of concern for any
pollutant.
  Preliminary analysis preformed by the
Agency indicate that a few treatment
residuals and very dilute waste
mixtures, such as waste waters, may be
exempted from subtitle C control under
this option. This option may have little
practical impact on other low waste
mixtures and treatment residuals. See
appendix 1 in appendix X where these
exemption levels are listed.
Option 3: HBN With a Multiplier of 1
  Yet another option establishes
numeric exemption criteria for toxicants
in wastes  at concentrations equal to the
toxicants' health-based number. Health-
based numbers are concentrations
below which toxicants are considered
by EPA to present an acceptable risk to
human health. This option is the most
protective option presented for comment
today. These levels are considered
protective even under worst case
exposure scenarios. Preliminary
analysis preformed by the Agency
indicates that because the risk
presented by wastes that meet this
exemption criteria are de minimi's, very
few treatment residuals and only
extremely dilute waste mixtures may be
exempted from subtitle C control under
this option. Therefore, this option will
have little practical impact on low
hazard waste mixtures and treatment
residuals.
Option 4: BOAT
  Under this option, the Agency is
proposing that listed hazardous waste
which has been treated to the applicable
treatment standard would also be
exempt from subtitle C management.
Technology-based generic exemption
levels could be developed by
establishing numbers based on toxicant
concentration levels found in waste
residuals  which have been treated using
proven treatment technologies. This
approach, which is consistent with the
LDR program, would require that all
listed hazardous wastes meet treatment
levels prior to disposal. The Land
Disposal Restrictions (LDR) Program
establishes treatment  standards for
hazardous wastes. Persons managing
those wastes must demonstrate that
their wastes meet these standards
before the wastes can be land disposed.
The standards are promulgated in
subpart D of 40 CFR part 268. While
some of these standards require that
certain wastes be treated by specific
treatment technologies before land
 disposal,  the majority of the treatment
                        standards are numerical standards for
                        subsets of toxicants commonly found in
                        individual listed wastes. These
                        standards were developed by evaluating
                        the effectiveness of the best
                        demonstrated available treatment
                        (BDAT) technologies for individual
                        listed wastes. If the numerical BDAT
                        technology standards for individual
                        waste streams were used as exit criteria
                        for listed hazardous waste, residuals
                        which were treated in accordance to
                        BDAT would no longer have to be
                        managed in a subtitle C facility when
                        disposed. The BDAT standards, as
                        currently promulgated, are solely
                        technology-based and do not consider
                        risk. As a result, the treatment
                        standards are in some cases higher and
                        in other cases lower than risk-based
                        levels discussed above. Setting
                        exemption criteria equal to LDR
                        treatment standards implies that the
                        treatment standards render the risks
                        presented by wastes to acceptable
                        levels given the use of best
                        demonstrated available technology.
                          The Agency believes BDAT levels per
                        se are inappropriate as exemption
                        criteria,  because these levels are purely
                        technology-based and do not consider
                        risk. However, the use of these levels as
                        CBEC has been suggested to the Agency
                        because in many cases treatment  to
                        these levels can substantially reduce the
                        risk presented by the  waste, these levels
                        are widely implemented throughout the
                        hazardous waste program, and often
                        these levels result in wastes that are
                        below or close to the  risk-based levels
                        of some of the options discussed above.
                        The use of BDAT levels as exit criteria
                        gives more confidence to some
                        interested parties who prefer to rely on
                        the performance of technology, rather
                        than the performance of risk
                        assessment. Therefore, the Agency
                        requests comment on the
                        appropriateness of considering these
                        levels as CBEC.
                        Option 5: BDAT Capped With HBN
                          Another option the Agency is
                        proposing for comment today is to
                        establish generic exemption levels
                        through a combination of the technology
                        and risk options discussed above. These
                        options  could be merged in different
                        ways to modify an approach based on
                        BDAT levels. The first, is to recognize
                        that there may be some wastes for
                        which there is some significant residual
                        risk even after achieving technology-
                        based treatment levels. There may be
                        some wastes for which best
                        demonstrated and available treatment
                        technology cannot routinely get below
                        the figure of 100 times health-based
                        levels, for example. Under this option,
for those wastes, a risk-based leach
level such as 100 times health-based
numbers would be the CBEC level rather
than the BDAT standard.
  Finally, EPA notes that the concept of
merging BDAT and risk-based
approaches is complex because BDAT
standards are sometimes set as total
concentrations in the waste, levels
measured in a leach test, or mandated.
The Agency solicits comment on the
problems that result from that
complexity as well as on this approach
generally.
  As stated in Option 4, some parties
prefer BDAT treatment levels because in
many cases treatment to these levels
substantially reduces the risk presented
by the waste and these levels are widely
implemented throughout the hazardous
waste program. Including either a risk-
based modification to these treatment
levels retains the advantages of Option
4, while removing some of the
disadvantages. The Agency requests
comment on the appropriateness of
considering these levels as exemption
criteria.

C. Expanded Characteristics Option
(ECHO)

  The second conceptual approach is
based on the current  hazardous
characteristics approach for identifying
hazardous wastes subject to subtitle C.
This approach would establish the same
characteristic (concentration) threshold
for determining whether a waste stream
would be covered as a subtitle C waste
[i.e., "entry" to the subtitle C waste
system) and when a waste stream
would be exempt from subtitle C
regulation. Therefore, RCRA
characteristics—ignitability, reactivity,
corrosivity, and toxicity—would
determine both entry to and exit from
the hazardous waste management
system; this would assure a consistent
regulation of wastes. This
rationalization of entry and exit
constituent levels would dramatically
simplify waste identification under the
RCRA regulatory system.
  There are three important advantages
to such an approach. First, the
characteristic approach would largely
replace the current approach based on
the combination of waste listings and
the "mixture" and "derived-from"  rules.
As noted above, this system has
required the management of millions of
tones of low risk wastes within the
subtitle C hazardous waste management
system. The characteristic approach
would tailor waste management
requirements to  levels the Agency
believes minimizes the short- and  long-

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               Federal  Register / Vol. 57. No.  98 / Wednesday, May  20,  1992 / Proposed Rules        21459
term threats to the protection of human
health and the environment.
  Second, the characteristic approach
would also provide important
programmatic advantages over the
concentration-based approaches
outlined above. Currently the Agency
must devote significant resources to
investigate and list each hazardous
waste stream. At the current pace,
listing all potentially hazardous waste
streams could take several decades. By
developing a set of comprehensive
hazardous waste characteristics, the
Agency could reallocate its resources
away from waste stream identification
and focus instead on ensuring that
generators properly carry out the tests to
determine whether their solid waste
exhibits a characteristic.
  In addition, this approach will give
generators and waste handlers
substantial incentives to develop new
information about the characteristics of
their waste streams. Under the
concentration-based approach,
generators, etc. have little incentive to
develop such information and, as a
consequence, EPA must devote
substantial resources to develop
information on the transport and fate of
waste constituents in the environment.
  Third, the characteristic approach
would achieve a much larger portion of
the potential cost savings associated
with addressing the overly broad
regulation of wastes under the current
"mixture" and "derived-from" rules.
  Therefore, the Agency is proposing
the Enhanced Characteristic Option
(ECHO) below as a way to move to a
system of characteristics. The Agency
requests comment on all aspects of this
issue.
Option 6. ECHO
  EPA has developed four
"characteristic" tests for identifying
hazardous waste—the Corrositivity,
Ignitability, Reactivity, and Toxicity
characteristics. This approach would
rely on this  set of characteristics,
augmented by a substantial revision of
its toxicity characteristic test to address
the chronic  and carcinogenic effects of
as many additional appendix VIII
constituents as possible. The current
Toxicity Characteristic (TC) was
devised to address the potential adverse
health-based effects of 39 heavy metal
and hazardous organic constituents
when improperly placed in an unlined
landfill.
  Under this option, the Agency would
expand the  Toxicity Characteristic from
its current list of 39 (40 CFR part 261)
appendix VIII hazardous constituents to
as many appendix VIII constituents as
possible. The TC then would address all
of the chronic and carcinogenic effects
of the appendix VIII constituents for
which there is a peer-reviewed health
based concentration level and an
analytic method for detecting the
constituent.
  During the TC rulemaking, the Agency
received many comments from the
environmental community suggesting
that the Agency expand the TC to
consider other toxicants in addition to
the 39 incorporated in the final rule. The
ECHO would respond to those concerns.
  As  in the current TC rule, the
characteristic level for these new
constituents would be a multiple of the
health based limit (HBLs). The multiple
would be derived from the EPA
Composite Model for Landfills
(EPACML) to reflect the diffusion and
attenuation of the constituent during
ground water transport.
  In addition to determining the scope
of the expanded toxicity characteristic,
the Agency must determine the
characteristic level for each constituent.
As  discussed in Option 1  above, there
are two options: A single  multiple above
the health-based limits for all appendix
VIII constituents or constituent-specific
multiples which vary for each toxicant.
Since ECHO could potentially expand
the waste streams  regulated under
subtitle C, EPA believes that
constituent-specific characteristic levels
are appropriate. As described in section
IV, the Agency has information for
approximately 200 constituents and is
requesting any additional data to assist
the Agency's efforts in making these
determinations. If constituent specific
data  is not available, EPA will use a
DAF  of 100 for the  remaining
constituents with health based levels
and verifiable test  methods. The Agency
would propose that this level minimizes
short and long-term threats to human
health and the environment for all
constituents since it is based on very
conservative physical dilution and
attenuation assumptions. (See section VI
for further discussion of exposure
pathways and EPA's proposed
justification of this finding.)
  As explained later in this notice, EPA
has quantifiable health risk data and
appropriate analytic methods for about
200 constituents now in appendix VIII. It
is these constituents which would be
added to the TC under ECHO. For listed
wastes containing  other toxicants for
which data is not available, the mixture
and derived-from rules would continue
to apply. In addition, testing methods
would have to be available for detecting
the constituents in the waste. Thus,
under ECHO, the TCLP or other EPA
approved test method would be used.
Section IV describes the constituents
eligible under this proposal.
  Although implementation issues are
discussed in more detail in section XI,
the Agency summarizes them here.
Under this option, generators who
currently manage a listed waste would
have to submit a one-time notification to
the Agency that their previously listed
waste now does not exhibit a
characteristic. Generators would have to
submit testing information and a
certification to verify their claim. The
Agency considers this one-time
notification essential to its proper
management of a transition from the
current hazardous waste identification
and tracking system to a system under
ECHO. EPA would need to receive
notice of changes in the status of these
waste streams in order to allow EPA to
review and enforce  against  changes that
are not properly  supported.
  After the one-time notification, the
ECHO approach would be implemented
like the current characteristic system.
Generators are responsible  for
determining whether their waste
exhibits a characteristic. Generators
may either test their waste or use their
knowledge of the waste  to determine
whether it is characteristic. As
envisioned under EPA's  1978 hazardous
waste identification proposal and under
this approach, the list of hazardous
waste list would serve as a  default list
to allow generators an alternative
method to identify (without the burden
of continually having to  test their
wastes) those waste streams which
almost always exhibit at least one
characteristic. Generators of a listed
hazardous  waste could simply manage
the waste stream under subtitle C.
Contingent Management Approach
  The previous options for listed
hazardous  waste apply in all situations
and, therefore, do not reflect the fact
that the way in which waste is managed
can modify the actual risks  posed by a
waste. If a  waste is placed in a
protectively designed landfill, the actual
risk posed  by the waste is significantly
reduced. Therefore, EPA is also
presenting several "contingent
management" options, under which the
ultimate  disposal of a waste may
influence the level at which it is
exempted from subtitle C. The basic
reasoning is that if a waste  is managed
safely, the  criteria against which it is
judged can be less stringent. Proven safe
disposal can allow more concentrated
waste out of subtitle C without
increasing risk to human health and the
environment so long as the  waste is
disposed of in accord with the

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Federal Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed  Rules
contingent management criteria. This
approach could complement either the
CBEC or the ECHO approaches.
  If wastes could exit subtitle C control
at different concentration levels
contingent upon different waste
management practices, the Agency will
have made a significant step in
transforming the current binary
regulatory system (subtitle C/not
subtitle C) to a system more focused on
risk. Such a system could better tailor
regulatory control to the variations in
potential risks posed by the large
volume of waste materials currently
subject to subtitle C regulation.
  To decide on the appropriate
management practices that afford
assurance that wastes leaving subtitle C
control will be well managed, the
expected route of potential exposure
must be determined. The Agency is in
this proposal limiting its contingent
management options to wastes disposed
of in landfill. In previous rulemakings,
the Agency has determined that the
primary route of exposure will be
consumption of groundwater
contaminated with leachate from the
disposal landfill. Therefore,  the Agency
is today presenting contingent
management options which diminish the
 likelihood of the occurrence of this route
 of exposure.
   As discussed  in section IX of this
 proposal, the  Agency has modeled
 environmental releases from landfills
 using the EPACML model. The model
 was constructed to simulate the
 potential hazards from mismanagement
 of hazardous waste. In summary, the
 model assumes  that hazardous waste is
 placed in an unlined, municipal solid
 waste landfill. Precipitation falls on the
 landfill and leaches hazardous
 constituents as  it moves through the
 landfill. Leachate from the landfill then
 flows through the soil to the
 groundwater and then to drinking water
 wells.
   Under the contingent management
 approach, the Agency intends to focus
 on actual management, not
 mismanagement, conditions if they can
 be reasonably assured. Thus, there are
  many potential ways to use the
  EPACML model to reflect actual
  conditions. For example, in section IX of
  today's notice,  the Agency proposes
  using a less acidic leaching procedure to
  better model the actual leaching process
  if waste is place in a monofill [i.e., not
  co-disposed  with municipal solid waste).
    The EPACML model was not
  specifically developed for modeling
  potential ground water contamination at
  individual sites. Rather, its purpose was
  to provide the Agency with a tool for
  projecting impacts to ground water on a
                        national basis. Although the CML model
                        is used in making delisting
                        determinations (see 56 FR 32993, July 18,
                        1991), the volume of waste is the only
                        parameter which is varied. The model is
                        not recommended for developing site-
                        specific DAFs taking into account the
                        exact physical/chemical attributes of a
                        site. Instead, the Agency requests
                        comment on whether to and how to
                        tailor DAFs to site conditions. Can this
                        be done on a national basis, using
                        certain factors that can be projected to
                        affect DAFs uniformly across the
                        country? Or should DAFs be tailored
                        specifically to a site, using the
                        conditions of the site and a more
                        appropriate site-specific model to adjust
                        the DAFs? Can a system using a
                        combination of both approaches be
                        employed?
                          The contingent management options
                        presented in today's Notice involve
                        consideration of five specific factors
                        which affect DAFs. Each involves the
                        actual conditions existing at a landfill
                         site. Those conditions can act
                         individually or in combination to
                         mitigate the potential for leachate to
                         contaminate ground water. The five
                         factors are described below.
                           First, one factor influencing contingent
                         management option is disposal in a
                         lined landfill with specific design
                         criteria. The Agency promulgated on
                         October 9,1991 performance and design
                         criteria for subtitle D municipal solid
                         waste landfills (see 56 FR 50978). To
                         satisfy the performance standard, these
                         criteria  require a low hydraulic
                         conductivity soil cover on the landfill
                         and a composite liner, consisting of
                         flexible membrane liner and a two-foot
                         barrier soil layer under the landfill.
                           Second, the amount of potential
                          exposure also varies with the average
                          amount of precipitation that falls on a
                          landfill. Precipitation is the primary
                          source of leachate; lower amounts of
                          precipitation would cause less leachate
                          and less leachate migration beyond the
                          barriers of the landfill. Another possible
                          contingent management option would
                          determine different DAFs based upon
                          the average expected precipitation rate
                          in the region the landfill is located. The
                          Agency could determine geographic
                          regions based upon climatic zones,
                          could require precipitation data from the
                          most appropriate certified rain gauge, or
                          could require site-specific information.
                          However, in order to do this the Agency
                          would need to verify that the other
                          model inputs are appropriate for each of
                          the regions or else  develop new region-
                          specific inputs. Therefore, the Agency
                          solicits data and comment on
                          technically appropriate ways to set
                          DAFs based on rainfall levels.
  A third factor which could warrant a
contingent management option is the
size of the landfill. In the TC rulemaking,
the Agency used a national distribution
of municipal landfill sizes—an
appropriate approach given the national
scope of the regulation and the assumed
mismanagement scenario. The Agency
recognizes that the DAF varies
significantly with the size of the landfill.
For any given distance from the  landfill
boundary, larger landfills have lower
DAFs. Therefore, when considering
actual management practices  at specific
landfills, the size of the landfill will be
known. One of the contingent
management option below is to  allow a
landfill to petition for a specific  DAF
(and thus contingent exemption from
subtitle C under CBEC or ECHO) based
on the landfill size. EPA points out that
this is similar to the delisting  program
where the volume of waste dictates the
DAF used, thus implicitly taking landfill
size into account. The Agency notes that
landfills which accept only hazardous or
industrial solid waste are generally
smaller than municipal solid waste
landfills.
   A fourth factor which significantly
influences the potential migration of
 contaminants is the hydraulic
 conductivity of the soil surrounding the
 landfill. If leachate infiltrates out of the
 landfill, it must flow through  the
 surrounding soil to reach a well or
 surface water body. If the hydraulic
 conductivity of surrounding soil is
 relatively low—such as in soils
 dominated by clays—then the flow of
 any potentially contaminated leachate
 could be effectively retarded for long
 periods of time. Thus, the Agency
 believes that landfills located in soils
 with low hydraulic conductivities (for
 example, 10~6cm/s or lower) could
 provide an extra level of environmental
 protectiveness worthy of a contingent
 management exemption option. EPA
 believes this factor may not be
 appropriate to generate national DAFs,
 using the EPACML model since the
 other model inputs may also vary in
 areas of soils with low hydraulic
 conductivity. The Agency seeks
 comment on several implementation
 issues for this option. The Agency could
 issue national DAFs or multiples above
  existing DAFs corresponding to different
 hydraulic conductivities—one  for 1(T6
  em's, one for 10~7 cm/s, etc.
  Alternatively, the Agency could require
  petitioners to obtain site-specific
  measurement of local soil conductivity.
  If the Agency asked for site-specific
  information, the Agency requests
  comment on the level of detail

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appropriate for a contingent exemption
based on soil conditions.
  Finally, the fifth possible contingent
management factor would be a
demonstration that no operating
drinking water wells lie within a specific
radial distance from the facility. To
account for this factor, landfill operators
could show that if the nearest drinking
water well was a certain radial distance
(1000 feet, 2000 feet, etc.) from the
facility, the landfill could  manage
wastes contingently exempt from
subtitle C at a higher concentration than
excluded under CBEC or ECHO. This
higher concentration level or DAF could
be determined with the EPACML. The
Agency requests comment on how,
under such an approach, a facility could
assure that wells would not be located
closer to the site in the future.

Contingent Management Options
  In today's Notice, EPA is proposing
two alternative approaches combining
the structural approaches  outlined
above (i.e.,  CBEC and ECHO) with
contingent management. The first one
involves setting exemption criteria
contingent on disposal in  a landfill
meeting certain design requirements.
This option would apply nationally
rather than on a site-specific  basis. The
second option involves determining a
threshold at which a waste would
become characteristically hazardous
even with disposal in a landfill with
specific design criteria dependant upon
size, location, and climatic conditions.
These,  too,  would be applied on a
national basis. Finally, the Agency is
also interested in comment on applying
the contingent management approach on
a site-specific basis by altering the
exemption criteria based on the site-
specific conditions of hydraulic
conductivity and the distance to a
private drinking water well.
Option 7. CBEC Modified  by Contingent
Management
  The Agency is proposing a  hybrid
option which incorporates aspects of the
risk-based,  technology-based and
contingent management options
discussed above, for establishing a
concentration-based exit from subtitle
C. This option establishes two sets of
risk-based levels: one set  is more
conservative and does not condition
subsequent management of the waste
(tier 1); the  second set is less
conservative and requires subsequent
management of the waste  in a specified
manner (tier 2). If listed hazardous
wastes (including residuals and
mixtures) leach concentrations of toxic
constituents at or below the more
conservative set of health-based levels,
the waste would no longer remain under
subtitle C jurisdiction (note: these
wastes will still remain subject to the
characteristics defined at 40 CFR 261
subpart C). This set of risk-based levels
are the levels described in the first set of
options where wastes, treatment
residuals, and waste mixtures, which
contain levels of toxicants at or below
the risk-based exemption levels would
be exempt from subtitle C control. These
levels might also be considered
minimum threat levels under section
3004(m) of RCRA (i.e., the LDR program)
meaning that BDAT treatment would not
be required below this level. The
Agency is proposing that these levels
(tier 1) be ten times the health-based
number for each toxicant, which is
slightly below the most conservative
levels for which wastes have been
delisted. The Agency believes that
selecting these levels, which are
presented in Appendix 1 of today's
notice, would be one way to harmonize
today's proposed rule with other RCRA
programs. This factor (10) represents a
level which may be fully protective in
the context of setting national levels at
which subtitle C jurisdiction ends. A
multiplier of 10 corresponds to
approximately the 95th percentile levels
generated from EPACML simulations
used to  support the Toxicity
Characteristics (TC) rule (See 55 FR
11826). For situations where unusual site
conditions may dictate a factor of less
than 10, the Region or authorized State
would be able to require, as necessary, a
more stringent factor (See Regional
Override Authority discussion in section
IX of today's notice). The Agency
requests comment on the
appropriateness of selecting a factor of
10 times health-based numbers for levels
where subtitle C jurisdiction ends
without condition of subsequent
management.
  The second set of risk-based
exemption criteria (tier 2) is contingent
upon specified waste management.
Today's notice is proposing, as a first
phase, to allow only listed hazardous
wastes which has met the applicable
Land Disposal Restriction (LDR)
treatment requirements to be eligible for
the contingent management exemption
(contaminated media are addressed
separately in Today's proposal). Once
the LDR requirements are met,
concentrations of toxic constituents
which leach from the residual are
compared with the less conservative set
of health-based exemption levels which
is tied to specific management
standards. The Agency is proposing to
establish the less conservative set of
risk-based levels at one hundred times
the health number for toxic constituents.
LDR residuals which leach toxicants at
concentrations greater than ten times
the health numbers, but at or below one
hundred times the health number and
are managed according to the
requirements set forth at 40 CFR part
258 subpart D, the municipal solid waste
disposal facility design criteria
promulgated on October 9, 1991 (56 FR
50978), or State equivalent, will not be
regulated under RCRA subtitle C. The
municipal solid waste landfill
regulations would set out default design
and operating requirements. The Agency
is proposing less conservative risk-
based exemption  levels contingent upon
management in a  landfill that meets
specified design requirements because
of the degree of protectiveness provided
by the design standards. The Agency
requests comment on alternative risk-
based exemption  levels coupled with
this management  practice as well as
other management practices. These
levels are also listed in appendix 1.
  EPA proposes that CBEC wastes in
this contingent tier would be able to be
exempt based on  management in an
alternative design approved by the
Federal government, either for municipal
solid waste (approved through
authorization of the  State municipal
solid waste program) or for CBEC
wastes (approved through authorization
of the State's hazardous waste program
but meeting the design standard for the
municipal solid waste landfills in 40
CFR part 258).
  EPA proposes that at a minimum, the
design and construction requirements of
40 CFR part 258 would be necessary
pieces of this conditioned exemption.
This would include liners unless there
was an approved  State alternative
design. EPA believes these elements
could realistically be installed and
relied upon in the context of a self-
implementing regulation. The Agency
seeks comment, however, on the need
for other components of the 40 CFR part
258 standards, including elements such
as covers, groundwater monitoring
phased in on the same timeframe as for
municipal solid waste landfills, financial
assurance and others. EPA also seeks
comment not just  on whether these
elements are necessary, but also
whether they realistically can be
elements of a largely self-implementing,
conditional exemption.
  Residuals which leach toxicants at
concentrations greater than one hundred
times the health numbers, even after
achieving the specified LDR treatment
standards, will remain regulated under
RCRA subtitle C. Figure 1 depicts the
two tiers of exemption levels and the

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Federal  Register / Vol. 57, No. 98  /  Wednesday, May 20,  1992 / Proposed Rules
jurisdictional authority associated with these levels. The Agency requests comment on all aspects of this proposed option.

                       Figure  1: Depiction of CBEC Contingent Management Option for Wastes
                        100X
                         10X
                                                               Subtitle C
                                                    Conditionally Exempt from Subtitle C
 Option 8. ECHO Modified by Contingent
 Management
   The Agency is also proposing today
 another hybrid option which combines
 the ECHO structural approach with
 contingent management options. While
 the ECHO approach sets uniform entry
 and exit levels for subtitle C
 management, for the reasons discussed
 above the Agency believes that
 establishing additional exit levels based
 on specific disposal practices would
 begin to implement the Agency's
 contingent management structure  and
 would provide adequate protection of
 human health and the environment.
   Under this proposal the Agency would
 adopt the ECHO approach discussed
 above in Option 6 for wastes entering
 and exiting subtitle C control and site-
 specific contingent management
 exemptions.
   In the ECHO approach, the
 characteristic level which determines
 whether a waste is hazardous under
 subtitle  C is the product of the health-
 based limit and a  constituent-specific
 factor. The factor  reflects the expected
 dilution or attenuation of the constituent
 as it moves from the waste to the
 receptor. In the TC rulemaking and the
 ECHO approach, the Agency has
 identified the potential consumption of
 contaminated groundwater as the key
 pathway of concern. This pathway, as
                         modified by EPACML, will be used to
                         develop new, higher thresholds at which
                         a waste would become
                         characteristically hazardous even with
                         managed disposal.
                          Therefore in considering the greater
                         degree of protection from alternative
                         contingent management options, EPA
                         proposes to develop input data for the
                         EPACML model to reflect the landfill
                         disposal scenarios for each contingent
                         management option. The EPACML will
                         be used to develop new, higher
                         thresholds at which a waste would
                         become characteristically hazardous
                         even with managed disposal.
                          One contingent management option
                         under this proposal would be disposal in
                         a lined landfill meeting specific design
                         criteria. The Agency promulgated
                         specific design and construction criteria
                         as the default option in the recent
                         subtitle D rulemaking [40 CFR 258). EPA
                         believes these elements could
                         realistically be installed and relied upon
                         for a self-implementing regulation. The
                         Agency proposes to use this data to
                         develop a new, higher threshold at
                         which wastes would become
                         characteristic wastes even though these
                         wastes are disposed in a facility meeting
                         these stringent design criteria. The
                         Agency proposes to set a generic
                         threshold under this option, which, like
                         the TC rulemaking, would be a
                         composite factor to account for
distribution across the continental
United States of different soil and
climatic conditions. The Agency
requests comments on this approach.
  Landfill size may also affect the risks
associated with waste disposal. The
Agency proposes to set different
national thresholds for landfills with
different sizes. For example, using the
EPACML model for a fixed landfill size,
the Agency may find that a 40 acre
landfill yields a factor of 500 above the
health based levels, a 100 acre landfill a
factor of 200, etc. The Agency requests
comment on this approach.
  Another contingent management
option would set different thresholds for
landfill located in areas with low
precipitation. As discussed above, the
Agency believes that low precipitation
will generate less leachate from a
landfill. The Agency proposes to use  the
same precipitation modeling techniques
for setting thresholds under this
proposal as was done in the TC
rulemaking. The Agency requests
comment on this approach. Unlike the
other options above, EPA believes that
this issue may require changing more
than one input parameter in EPACML to
derive the appropriate thresholds. For
example, two other EPACML input
parameters—soil types and depth to the
unsaturated zone—vary with the
amount of precipitation a region

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               Federal Register / Vol.  57, No. 98 / Wednesday, May 20. 1992  /  Proposed Rules        21463
 receives. Therefore, the Agency is
 proposing that, if EPA adopts this
 option, it would recalculate the nation
 weights used in the TC rulemaking to
 account for the regional limits of this
 proposal.
  Finally, the Agency is considering an
 alternative option that would allow
 generators to petition EPA to adjust the
 characteristic level for wastes based on
 site-specific conditions. The Agency is
 considering two contingent management
 options based on site-specific
 conditions: one option for landfills
 located at sites with low hydraulic
 conductivity and the second option for
 landfills with wells located within
 certain greater radial distances from the
 landfill. The characteristic values for the
 constituents would be multiplied by a
 factor which takes into account low
 hydraulic conductivity or proximity to
 nearest well to determine the contingent
 management threshold. The Agency
 requests comments on alternative site-
 specific contingent management
 approaches.
  As discussed above, the Agency is
 concerned that EPACML may not be the
 appropriate model to use for site-
 specific determinations of contingent
 management. The Agency could require
 petitioners to submit a site-specific
 groundwater fate and transport model
 with site-specific inputs. This approach
 would give more confidence that the
 model's predictions accurately predict
 the actual hydrogeology of the landfill
 site. The Agency also could use the
 EPACML model and require a certain
 number of site-specific inputs, e.g., soil
 conditions, depth of unsaturated zone.
 The Agency requests comments on this
 issue.
  Commenters should keep in mind a
 principal concern regarding site-specific
 modeling. Assigning site-specific
 threshold levels could result in a
 significant resource burden to regulatory
 agencies and the regulated community.
 When a large number of petitioners seek
 thresholds tailored to their sites,
 regulatory authorities must analyze the
 modeling approach, the assumptions
 inherent in the modeling approach, and
 the input parameters to determine their
 validity.
  Finally, the Agency requests comment
 on how should the Agency determine
 thresholds for landfills that meet two or
 more contingent management
 conditions—a landfill constructed with
 the subtitle D design criteria located in
 an arid area. One option is to add the
generic factors to determine the
 threshold. The Agency also requests
comments on how to assign thresholds
for landfills with a combination of
generic and site-specific factors.
   In their March 18,1992 letter to the
 Agency, the Department of Energy
 (DOE) said that "some hazardous and
 radioactive mixed wastes streams
 managed by the Department, energy
 industries, and other affected parties,
 contain minute concentrations of listed
 hazardous constituents, pose no
 appreciable risk to human health or the
 environment, but  are nevertheless
 subject to costly regulation under
 subtitle C." DOE suggested to the
 Agency that hazardous wastes mixed
 with radioactive wastes  may be more
 appropriately regulated under the
 existing requirements of the Atomic
 Energy Act (AEA). EPA expects that the
 general approach in today's proposed
 regulation would allow for exemption of
 mixed wastes that contain very low
 concentrations of chemically-hazardous
 constituents for RCRA subtitle C
 requirements. However,  there is also a
 suggestion that for mixed wastes with
 higher concentrations of chemically-
 hazardous constituents regulated
 because of RCRA listings, regulation
 under the AEA already requires
 measures intended to control exposure
 to and releases of radioactive hazards
 that would also protect human health
 and the environment by limiting
 exposure to, and release of chemically-
 hazardous constituents from mixed
 wastes. EPA solicits comment as to
 whether it would be reasonable to
 develop a  contingent management
 approach for mixed wastes where the
 conditional exemption criteria would be
 compliance with the regulations that
 exist to control the radioactivity
 hazards.
 Phasing
  Lastly, an issue that impacts both
 approaches proposed today is phasing.
 The CBEC approach will require
 phasing, because there are only 200
 toxic constituents for which the Agency
 has health-based number and analytical
 methods. As a first phase, the Agency
 could promulgate CBEC levels for these
 200 and the remaining appendix VIII
 constituents could be added as methods
 and health-based numbers are
 developed (see discussion of CBEC
 approach in part B of this section and
 discussion in section  IV).
  For the same reason, the ECHO
 approach will require phasing while
methods and health-based numbers are
 developed for the remaining appendix
VIII constituents as well. During the
 transition period, the  mixture and
derived-from rules would remain in
effect for wastes containing toxicants
which were not included as part of
ECHO. Also, until constituent-specific
DAFs could be developed for all toxic
 constituents, a default DAF of 100 would
 be used until a DAF for each constituent
 could be developed (see discussion of
 the ECHO approach in part C of this
 section and discussion in section IV).
   Also, phasing could also be directed
 towards  certain wastes types or
 facilities for implementation and
 resource reasons (see phasing
 discussion in section IV). In summary,
 under the CBEC approach, the Agency
 proposes that all wastes, residuals, and
 media be eligible for the CBEC
 exemptions. However, the Agency is
 considering two possible phased options
 based on waste type: A limitation only
 to treatment residuals and a limitation
 only to media under a supervised
 remediation. In contrast, under the
 ECHO approach, the Agency would
 likely not phase in this approach by
 waste type,  but by constituent;  wastes
 containing hazardous constituents not
 included in the toxicity characteristics
 would remain subject to the mixture and
 derived-from rules. The Agency requests
 comment on the advantages and
 disadvantages of phasing and on
 alternative approaches to phasing.
   Additionally, should comments
 support incorporation of contingent
 management in either the CBEC or the
 ECHO approach, the Agency may find it
 necessary, due to time constraints and
 implementation concerns to phase in
 portions  of this approach. This could
 mean first promulgating the more
 conservative exemption criteria under
 CBEC or  ECHO and later promulgating
 less conservative exemption criteria
 contingent upon specified management
 under either approach. In addition, in
 this rulemaking the Agency proposes to
 allow contingent management only  in
 landfills.

 E Approaches for Contaminated Media
  In developing today's proposed
 rulemaking,  EPA considered a number
 of issues  regarding how the two
 conceptual approaches (CBEC and
 ECHO), which could be modified with
 contingent management,  should be
 applied to contaminated media; that is,
 soils, groundwater, surface water and
 sediments that are  contaminated with
 listed hazardous wastes. Substantial
 volumes of contaminated media are
 commonly generated and managed in
 the course of RCRA and CERCLA
remedial  actions. Thousands of other
 sites across the country may also
potentially involve cleanup of media
that may  be  subject to RCRA subtitle C
requirements. It has been the Agency's
experience with remedial programs  to
date that  determinations of when such
materials are subject to the RCRA

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21464	Federal Register  /  Vol. 57,  No. 98  /  Wednesday, May 20,  1992 / Proposed  Rules
hazardous waste management
standards can affect not only the costs
of cleanup actions, but also the
technical approach used, timing of the
cleanup, and procedural requirements,
such as the need to obtain a RCRA
permit before conducting certain
cleanup activities.
  RCRA subtitle C regulations have to
date generally not distinguished
between wastes and contaminated
media. Units in  which contaminated
soils and groundwater are treated,
stored or disposed of must meet the
same design and operating standards as
those for "as generated" hazardous
wastes. Other RCRA requirements,  such
as the land disposal restrictions, also
apply to contaminated media, although
some LDR treatment standards are
being developed specifically for
contaminated soils.
  Today's proposal is expected to have
an important and positive impact on the
Agency's remedial programs. It should
define much more clearly the
jurisdiction of subtitle C in relation to
contaminated media; in addition it
should enhance the flexibility of
remedial decisionmakers to apply
management standards to materials that
are contaminated but do not merit the
full subtitle C level of protection.
  Under the ECHO approach, one
option for the Agency would be to
consider contaminated media to be like
other RCRA subtitle C  wastes. Similar to
their responsibilities for solid wastes,
generators would have to test or rely on
their knowledge of the  media to
determine whether it exhibits one of the
characteristics. This approach for media
would have the benefit of the simplicity
 of a characteristic-based system. For
 example, the tests for media would be
 the same as waste. However, the
 Agency has long recognized the special
 features of media which could warrant
 special regulation. These are described
 below.
   EPA believes that there may be sound
 reasons for developing some explicit
 provisions under the subtitle C system
 for contaminated media. For one thing,
 the physical characteristics of
 contaminated media can be quite
 different from as generated wastes.
 Contaminated  soils, for example, are
 highly variable in their composition and
 handling characteristics. Treatment of
 such soils can  thus be  particularly
 difficult. It should also be understood,
 however, that  some  contaminated media
 can be essentially identical to as
 generated wastes—contaminated
 groundwater, for example, may be very
 similar to dilute wastewaters generated
 from industrial processes.
  Although some contaminated media
might be distinguished from as
generated wastes on the basis of their
inherent physical/chemical properties,
perhaps a more important distinction
has to do with the type and amount of
Agency oversight that is given to
cleanup activities under RCRA and
CERCLA, as opposed to ongoing
generated waste streams. Remedial
actions under these authorities are
typically conducted with substantial
Agency oversight; remedial decisions
are made by the Agency based on a
thorough study of the nature and extent
of the contamination problems at the
site. In contrast, most RCRA subtitle C
regulations are uniform, national
standards, and as such must require a
level of protection sufficient for a highly
diverse universe of facilities and
environmental settings.
   In addition,  EPA has found that
subtitle C requirements, when applied to
contaminated media generated during
cleanups (and indeed, more broadly, to
remediation wastes), can act as a
disincentive to more protective
remedies, and can limit the flexibility of
a regulatory decisionmaker in choosing
the most practicable remedy at a
specific site. In contrast, RCRA subtitle
C regulations, when applied to newly
generated wastes,  ensure that the
wastes are handled according to
stringent national standards; due to the
cost of subtitle C management, they also
create a significant incentive for waste
minimization and process changes to
eliminate hazardous waste generation.
Yet these same requirements, when
applied to contaminated media, provide
a comparable incentive for leaving
wastes in place, or for selecting other
remedies that minimize regulation under
 subtitle C.
   EPA recognizes, of course, that both
 Superfund and RCRA provide it the
 authority to compel specific remedies, as
 long as the remedies are consistent with
 the goals of the statutes; under the
 current programs,  the Agency can
 require facility owner/operators  or
 responsible parties to excavate
 contaminated media (e.g., soils) and
 manage them fully in compliance with
 subtitle C. Similarly, in a fund-financed
 remedy under Superfund, EPA can use
 CERCLA funds to effect a similar
 remedy. Thus, through its regulatory
 authority, EPA can at least in theory
 override any  regulatory disincentive
 against a given remedy. In its conduct of
 the Superfund and RCRA programs,
 however, EPA has come to recognize the
 fact that RCRA subtitle C requirements
 will apply to  some remedies and not to
 others, and can influence the remedy
selection process in undesirable ways.
For example, compliance with subtitle C
disposal requirements may completely
eliminate from consideration remedies
that would otherwise meet Superfund or
RCRA remedial standards and that
might be the most sensible remedy from
a technical point of view. In such cases,
the regulatory decisionmaker might be
faced with the dilemma of choosing
between two or more extreme options,
such as a remedy involving containment
in place versus removal and
management according to full RCRA
subtitle C standards, without having the
opportunity  to consider a middle option
that might be fully protective, in
compliance with Superfund or RCRA
cleanup goals, and acceptable to the
local  community. In such cases,
practical considerations and the need
for prompt action may often force the
decisionmaker to select the less
protective of the available extremes.
   More broadly, under Superfund and
RCRA corrective action, the regulatory
decisionmaker must address a situation
that is already unacceptable—that is, a
situation which needs remediation. The
decisionmaker's goal in such a case is to
select a remedy that is fully protective,
yet that reflects the technical and
practical realities of the site. In
addressing that situation, the
decisionmaker needs the flexibility to
consider a full range of strategies so that
one may be selected that promptly,
effectively,  and permanently addresses
the problem. EPA believes that
constraining this range of strategies by
requiring compliance with subtitle C
disposal standards for wastes
"generated" during remediation can
often lead to remedies that are not cost-
effective and that in some cases may
 actually be  less protective solutions
 than the remedies that otherwise would
be chosen.
   The above considerations—the
 physical and chemical differences often
 found between contaminated media and
 as-generated wastes; the level of
 Agency oversight over remedial actions;
 and the counterproductive constraints
 that  subtitle C requirements can impose
 on the remedy selection process—
 suggest that a somewhat different
 approach to regulating contaminated
 media (and perhaps remediation wastes)
 may be appropriate under RCRA
 subtitle C. In light of this,  the Agency is
 proposing for comment in today's rule
 three alternatives for handling
 contaminated media that would allow
 EPA to consider certain site-specific
 conditions in making subtitle C
 exemption  decisions in the context of
 remedial actions. The three alternative

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               Federal Register / Vol. 57, No.  98 / Wednesday,  May 20, 1992  / Proposed Rules
                                                                      21465
regulatory approaches for media are
discussed below.
Media Alternative 1: Contingent
Management
  This alternative would be essentially
the same as contingent management for
wastes, as described previously in this
preamble. Thus, media contaminated
with listed hazardous wastes would be
exempted from subtitle C if the
constituent concentration levels were at,
or lower than, the levels specified for
lower tier (e.g., more stringent tier) of
CBEC or ECHO, or for the upper tier
(e.g., less stringent tier) if the media
were disposed contingent upon specified
management. For CBEC, the upper tier
would be contingent upon disposal in a
landfill meeting the design criteria
specified in 40 CFR 258 subpart D or
State equivalent. For ECHO, the upper
tier would be contingent upon the
landfill meeting the criterion proposed in
Option 8.
  In the case of soils that meet the lower
tier exemption levels, management and
ultimate disposition of the soils could
essentially be unrestricted. It is possible,
therefore, that direct contact exposure
(e.g., ingestion by children) to such soils
could occur. However, the lower tier
exemption levels are (except for metals)
specified as  leachate concentrations,
and  do not take into account direct
contact exposure. It is therefore possible
that contaminated soils that meet the
lower tier (leachate) exemption levels
could have total concentrations of
constituents that might not be fully
protective from the standpoint of direct
contact exposure. The Agency requests
comments as to whether for soils, the
lower tier exemption levels should be
specified as  both leachate levels and
levels based on direct human contact
with the soils.
  Relationship with LDRs. In a separate
rulemaking,  scheduled to be published
in the Federal Register later this year,
EPA intends to propose treatment
standards for hazardous soils, for
compliance with the RCRA land
disposal restrictions (LDRs). In
developing the HWIR  and LDR
proposals, the Agency has considered a
number of issues relating to how the
LDR treatment standards for soils will
relate to the HWIR exemption levels for
soils. Although further discussion of
these issues will be included in the
forthcoming LDR proposal, EPA believes
that it is important in today's proposal
to outline the relationship between the
subtitle C exemption levels and LDR
standards for soils.
  The final HWIR rule will determine
which soils contaminated with listed
hazardous wastes will be subject to
subtitle C regulation, including the
LDRs. The LDRs will specify the
standards to which contaminated soils
must be treated before they may be
disposed. Although the regulatory effect
of the two rules is different, the general
objectives in establishing the specific
levels for soils in both rules are in many
ways consistent.
  In the LDR rule, EPA expects to
propose levels based on minimized risk
for soils that are protective assuming
direct contact [e.g., ingestion) and
leaching of constituents to  groundwater.
These concentration levels thus
represent the levels that the Agency
believes pose minimal threats to human
health and  the environment. The
"minimal threats" levels will be the
"floor" standards for treatment; that  is,
treatment of soils will not be required
below those levels. For some
constituents, where the minimal threats
levels cannot be achieved  because of
treatment technology limitations, a
higher, technology-based level would be
specified as the applicable treatment
standard for that constituent. EPA is
proposing that any of the options in this
rule which  are promulgated as final
exemption  criteria (not  contingent upon
management) would also represent a
"minimized threat" level which also
would become the BOAT floor. The
Agency requests comment on  this
alternative for contaminated media.
EPA also requests comment on the
relationship between the contingent
management approach and LDRs.
Media Alternative 2: Contingent
Management with Provisions for Site
Specific "Contained-In" Determinations
  This alternative would adopt the
lower and upper tier exemption levels,
but would also provide a mechanism for
determining alternative exclusion levels
based on site-specific and  waste-
specific conditions. This alternative
would thus codify the existing
"contained in" rule for determining
when contaminated media no longer
"contain" listed hazardous wastes, and
thus are no longer subject  to RCRA
subtitle C.  Fundamentally, this
alternative is based on  the premise that
it is important and necessary for the
Agency to be able to consider, in certain
situations,  site-related conditions and
waste-specific characteristics in
establishing subtitle C exclusion levels.
  The lower and upper tier exclusion
levels as proposed today are intended to
be generic, national standards that are
protective  of human health and the
environment in all but highly unusual
situations.  They are thus based on a set
of assumptions regarding potential
exposure, fate and transport in the
environment, and human health effects.
In developing such generic, protective
levels, it is recognized that, given
particular site conditions and waste
characteristics, higher concentrations
could be fully protective in some cases.
For example, it may make sense to
exclude soil from subtitle C regulations
if the soil is contaminated only slightly
above the lower tier levels, is in a
remote location, or where groundwater
is not of drinking water quality. For such
situations, the current contained-in rule
would allow the Agency to determine
that the soil does not "contain" listed
hazardous wastes. Alternative 2 would
codify the contained-in rule and provide
an administrative mechanism  for
determining when contaminated media
will be exempted from subtitle C, based
on site specific conditions. The Agency
intends to propose specific regulations
for codifying the contained-in  rule,
including procedures and decision
factors for making such determinations,
in the forthcoming LDR "Phase II"
proposal for contaminated soils.
  EPA proposes that contained-in
determinations would be made based on
the inherent characteristics of the
contaminated media and the
environmental conditions at the site.
Contained-in determinations would
therefore not take into account the
lessening of exposure or risk potential
that might occur if the contaminated
media were managed in any particular
way. For example, in the case of a site
with contaminated soil, the decision as
to what a protective contaminant
concentration level might be based on or
otherwise affected by the fact that the
soils would be placed in a lined and
capped landfill. The Agency intends that
contained-in determinations would be
based on conservative evaluations of
risk to human health and the
environment, assuming essentially
unconstrained disposition of the
contaminated media.
  Relationship to LDRs. In terms of
applicability of LDRs to contaminated
media, a site-specific contained-in
determination would have the same
effect as  a CBEC, ECHO, or lower tier
exclusion. Media contaminated at levels
below the contained-in concentrations
as determined by the Agency for those
media at that site would no longer be
subject to Subtitle C of RCRA and
would satisfy the LDRs, because they
would meet minimum threat levels.
Thus, LDR treatment of media would not
be required below the site-specific
contained-in levels. EPA solicits
comments on this alternative for
applying subtitle C exemption levels to
contaminated media.

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21466
Federal  Register / Vol. 57,  No. 98  /  Wednesday, May 20,  1992 / Proposed Rules
  The Agency notes, however, that if it
selected this alternative (or any of the
other media alternatives), certain types
of dilution to achieve the exemption
levels would not be allowed. The legal
authority to limit dilution comes from
section 3004(a)(3) of HSWA as well as
the goals and language for the LDR
provisions (see 55 FR 22664).
Media Alternative 3: Contingent
Management with Provisions for Site-
Specific Contingent Management
Determinations
  The contingent management approach
being proposed today for wastes would
allow subtitle C exclusion
determinations to at least partially
account for how the wastes will be
disposed. The disposition of wastes in a
lined landfill would thus be considered
as a factor as to the potential risks
posed to human health and the
environment by that waste (i.e., its
"hazardousness"). The third alternative
being proposed today for applying
exemption levels to contaminated media
would extend this concept to allow such
factors to be evaluated on a site-specific
basis, in the context of RCRA or
CERCLA remedial decisions.
  This alternative would be similar to
Alternative 2, in that it would provide
the Agency with a mechanism to
consider waste-specific and site-specific
conditions in determining when
contaminated media at a site should be
subject to subtitle C regulation. While a
contained-in determination would not
be made contingent on any particular
disposal method for the contaminated
media, a site-specific contingent
management determination would allow
 such waste management factors to be
 considered. In practice, EPA believes
 this approach could be beneficial in
 providing greater flexibility for remedial
 decision makers to apply management
 standards to contaminated media that
 would be proportionate to the actual
 risks posed by those media at a given
 site. If, as EPA believes, the concept of
 subtitle C exclusion levels based on
 contingent management is
 fundamentally sound, it may be
 reasonable to allow the Agency to apply
 the concept on a site-specific basis,
 where the Agency has sufficient
 knowledge  of site conditions, and
 control over the management and
 disposition of contaminated materials.
 The legal basis for this alternative is
 similar to the legal basis for the
 contingent management  approach for
 wastes: Because EPA would be able to
 ensure that remedial wastes managed
 under the Agency's oversight would not
 be "mismanaged", the waste would not
 be "hazardous" under RCRA section
                        1004 and "should" not be regulated as
                        hazardous under RCRA section 3001(a).
                          To illustrate how this alternative
                        might be applied, an example situation
                        could be a site with two areas (A and B)
                        of soil that is contaminated with the
                        same listed wastes, at generally the
                        same concentrations. An effective and
                        protective remedial approach could be
                        to install a cap over the contaminated
                        soils. This would not trigger subtitle C
                        requirements, since the hazardous soils
                        would not be treated, stored, or
                        disposed of. However,  if the soils from
                        Area A were to be excavated and
                        consolidated into Area B, the soils from
                        area A would be subject to subtitle C, in
                        that placement of the hazardous soils
                        into Area B would constitute disposal.
                        Under the proposed Alternative 3,
                        however, the Agency could determine
                        that the soils in Area A, when disposed
                        of in Area B, could be excluded from
                        subtitle C due to the low potential risks
                        that would be posed to human health
                        and the environment by the soils, when
                        they were disposed of in the capped
                        unit.
                          An important feature of this
                        alternative approach would be that the
                        contaminated media would be subject to
                        subtitle C standards prior to their
                        disposal. Thus, if the contaminated soils
                        in the above example were to be treated
                        in a tank before being placed in the
                        disposal unit, the tank would be subject
                        to the applicable subpart J standards of
                        part 264 or 265. Likewise, the Agency
                        proposes that contaminated media that
                        are disposed of off-site would not be
                        eligible for site-specific contingent
                        management determinations.
                          In making site-specific contingent
                        management determinations, EPA would
                        have to carefully consider considerable
                        amounts of data pertaining to the
                        contaminated  media, site
                        characteristics, and the nature and long-
                        term effectiveness of the engineered
                        containment systems (i.e., caps, liners,
                        etc.) of the disposal unit. Due to the
                        amount of information and oversight
                        that EPA believes would be needed in
                        making site-specific contingent
                         management determinations, it is
                         proposed that such determinations
                         would only be applicable in the context
                         of corrective actions conducted pursuant
                         to RCRA or CERCLA cleanup
                         authorities. EPA believes that, given the
                         implications of such determinations, and
                         the need to ensure that contingent
                         management determinations are based
                         on sound technical judgment and a
                         thorough knowledge of the site, only
                         RCRA and CERCLA actions provide the
                         requisite degree of Agency oversight to
                         ensure the soundness of such decisions.
Similarly, EPA believes this approach
should be limited to on-site disposal
because of the focus of EPA's attention
and authority on the remedial site. EPA
also acknowledges that some States
may have enforcement authorities or
other legal mechanisms that provide a
similar level of control and oversight as
under RCRA or CERCLA. EPA solicits
comment on whether site-specific
contingent management determinations
should be available for State-supervised
cleanup actions under State authorities.
EPA also solicits comment as to how
such determinations might potentially
be made available to cleanup actions
that are not compelled under RCRA,
CERCLA, or State authorities.
  Although today's proposed
Alternative 3 would apply only to
contaminated media, EPA believes that
conceptually, the same decision process
could be applied to other types of
hazardous wastes that are generated
and managed pursuant to remedial
actions. For example, sludges and other
solid wastes are often managed as part
of cleanup actions at RCRA and
CERCLA facilities. The same logic could
be applied to such wastes (i.e., that
would not be considered contaminated
media), in making determinations as to
how RCRA subtitle C should be applied.
Although such wastes could be identical
to as generated hazardous wastes, the
degree of site-specific control that is
inherent in Agency supervised remedial
actions might be sufficient to allow
contingent management determinations
for all wastes, including contaminated
media, that  are managed pursuant to
RCRA or CERCLA remedial actions.
EPA specifically solicits comment on
how and whether such determinations
could be provided for remedial wastes
other than contaminated media.
   Relationship to LDRs. The discussion
 above addresses an approach under
 which contaminated media (and
 perhaps other remediation wastes)
 would be excluded from RCRA subtitle
 C jurisdiction at the time of on-site
 disposal in  compliance with an Agency-
 selected remedy—assuming of course
 that the remedy fully met the
 protectiveness standards of Superfund
 or RCRA corrective  action. It does not,
 however, address the question of
 whether the wastes  would still have to
 meet the RCRA land disposal
 restrictions, even though they were no
 longer hazardous.
   Generally, EPA has taken the position
 that the Agency has the authority to
 determine for each waste stream
 whether the RCRA land disposal
 restrictions take effect at the point a
 hazardous waste is generated. If this

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               Federal  Register / Vol. 57, No. 98 / Wednesday, May  20, 1992 / Proposed  Rules        21467
approach were applied to contaminated
media under Alternative 3, treatment to
land ban standards would be required
for wastes disposed of on-site in land
disposal units, even if the overseeing
regulatory agency determined that the
waste was nonhazardous (under today's
proposed exemption levels) at the time
of disposal.
  EPA has articulated in the "third
third" LDR rule (see 55 FR 22520, 22651;
June 1,1990) its legal and policy reasons
for its general approach of retaining
discretion as to where to apply the
LDRs. The Agency described these
reasons in detail in the "third third" LDR
rule (see 55 FR 22520, 22651, June 1,
1990). For some waste streams, the
Agency believes  the LDRs apply at the
point of generation. At the same time,
however, EPA has taken an alternative
approach in the case of particular
wastes and waste management
situations, applying the land disposal
prohibitions to those streams if they are
hazardous at the point they are disposed
of, but not applying the prohibitions at
that point if the wastes are no longer
hazardous (see 55 FR 22664). EPA has
taken this alternative approach only
where it was supported by other policy
considerations—such as  integrating the
land disposal restrictions with
regulatory programs under the Clean
Water Act or the Safe Drinking Water
Act. EPA also believes that this
approach may be justified for
contaminated media excluded from
subtitle C under today's proposal, if the
third alternative discussed above is
adopted. In such a case, applicability of
the land ban at the point of generation
would serve as a significant disincentive
to many acceptable remedies and would
constrain the range of protective
remedies available to the regulatory
decisionmaker. On the other hand,
applying land ban at the point of
disposal would allow a more effective
balancing of possible remedies.
  This point can be illustrated by the
specific example discussed above,
where two areas (A and B) of soil are
assumed to be contaminated with
hazardous waste at similar
concentrations. In such a case, the
decisionmaker would ideally want to
look at a range of options, including
capping in place; consolidating the soils
in one of the two contaminated areas;
building a new engineered landfill and
disposing of the wastes in that landfill;
excavating, partially treating the waste,
and redisposing of it; and removing the
waste, treating it to RCRA LDR
standards, and redisposing of it. Yet, if
RCRA LDR standards were to apply  to
the waste as a matter of law (or of
ARARs) at the point of "generation"
[i.e., excavation), all but the first and the
last options would probably be
eliminated from consideration,
regardless of how protective,
practicable, or desirable the other
options were. In such a case—depending
on the specifics of the situation—
capping in place might have to be
chosen as the only practicable or
technically feasible remedy (e.g.,
because of the volumes of media
involved, materials handling problems,
or local opposition to specific  treatment
options, such as thermal treatment). EPA
believes this result would largely
undermine the goals of Alternative 3,
because it would significantly constrain
the Superfund and RCRA remedy
selection process, and in some cases
lead to less protective remedies. For this
reason, EPA believes that, if Alternative
3 is adopted, sufficient policy
justification may exist to apply land
disposal restrictions at the point of
disposal in specific remediation  settings.
  EPA solicits comments on all aspects
of this alternative for addressing
contaminated media. In particular, the
Agency solicits comment on the
appropriateness of including within this
alternative a new approach to the land
disposal restrictions—that is, applying
these restrictions to hazardous waste at
the time of disposal—and on whether
this alternative should be expanded to
include remediation wastes other than
contaminated media.
BILLING CODE 6560-50-M

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21468
         Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
                   Figure 2: Depiction of Contingent Management Options for Media
J
               100X
                10X
                                                    Subtitle C
                                         Conditionally Exempt from Subtitle C
                                                             Soliciting comment on the
                                                            extent these media should be :.;
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                Federal  Register /  Vol. 57. No.  98 /  Wednesday,  May  20,  1992  /  Proposed  Rules         21469
IV. Waste Applicability

  In order to reduce the unnecessary
regulatory burden of managing dilute
wastes, treated wastes, and certain
contaminated materials and media
(including rags and clothing, soils and
groundwater) as hazardous waste, the
Agency is establishing exemption
criteria for listed hazardous wastes and
contaminated media which, if met,
would exempt the waste/media from
Subtitle C requirements. The Agency
performed a number of analyses to
assess the potential impact of this
exemption mechanism. For these
analyses, the Agency reviewed
compositional data on approximately
800 wastes and media, including listed
waste mixtures, listed treatment
residuals, untreated listed wastes, and
contaminated soils, groundwater, and
certain treatment residuals. The
compositional data were used to
identify those wastes and media that
would be expected to achieve the
exemption. Based on these analyses, the
Agency found that the wastes and
media most likely to meet the criteria
are contaminated soils and
groundwater, dilute waste mixtures, and
treatment residuals. Although, the
Agency believes that most "as
generated" listed hazardous wastes will
not achieve the exemption levels, the
Agency is not excluding these wastes
from eligibility. Therefore, the Agency is
proposing that the following waste
categories be eligible for exemption
demonstrations:
   (1) Hazardous wastes listed in 261.31
and 261.32 (with the exception of certain
wastes discussed below).
   (2) Commercial chemical products
listed in 261.33 that are present on the
exemption list (i.e., Appendices [x + 1]
and [x + 2]).
   (3) Contaminated materials and media
(i.e., groundwater, soils, rags, kiln
refractory) that  contain one or more
hazardous wastes listed in (1)  or (2)
above.
   (4) Wastes that are hazardous
because they have been derived from or
mixed with wastes in (1) or (2) above.
   Eligible wastes and media must be
analyzed for hazardous constituents
contained in Appendices [x + 1] and
[x + 2], respectively. The remainder of
this section discusses alternate
exemption mechanisms for certain
wastes, as well as various proposed and
optional eligibility restrictions for
wastes and media (section IV.A) and
waste management units (section IV.B).
A. Eligibility

Hazardous Wastes Listed Based Solely
on Characteristics
   The lists of hazardous wastes include
a number of wastes that are listed solely
because they exhibit a characteristic. 40
CFR 261.3(a)(2)(iii)) states that such
wastes  remain hazardous until a
mixture of these wastes with solid
wastes  no longer exhibits any
characteristic of hazardous wastes
identified in subpart C of 40 CFR part
261.4 Thus, it is unnecessary to include
these wastes, which are listed  in Table
1, in the exemption program because of
the existing self-implementing
exemption process:

TABLE 1.—WASTES LISTED DUE TO CHAR-
   ACTERISTICS FOR WHICH  DE  MINIMIS
   Exemptions Are Not Necessary

F003—The  following  spent  non-halogenated  sol-
  vents  xylene, acetone, ethyl acetate, ethyl ben-
  zene, ethyl ether, methyl  isobutyl ketone, n-butyl
  alcohol, cyclohexanone, and methanol (I)
K044—Wastewater treatment sludges from the man-
  ufacture of explosives (R)
K045—Spent  carbon  from  the  treatment   of
  wastewaters containing explosives (R)
K047—Pink/red water from TNT operations (R)
P009—Ammonium picrate (R)
P081—Nitroglycerine (R)
P112—Tetranitromethane (R)
U001—Acetaldehyde (I)
U002—Acetone (I)
U008—Acrylic acid (I)
U031— n-Butyl alcohol (I)
U055—Cumene (I)	
U056—Cyclohexane (I)
U057—Cyclohexanone (I)
U092—Dimethyl amine (I)
U096—a.a-Dimethylbenzylhydroperoxide (R)
U110—Dipropylamme (I)
U112—Ethyl acetate (I).
U113—Ethyl acrylate (I)
U117—Ethyl ether (I)
U124—Furan (I)
U125—2-Furancarlboxaldehyde (I)
U154—Methanol (I)
U161—Methyl isobutyl ketone (I)
U186— 1,3-Pentadiene (I)
U189—Phosphorous sulfide (R)
U213—Tetrahydrofuran (I)
U239—Xylene (I)


   Note that a number of the commercial
chemical products listed in Table 1 are
also constituents on the exemption list
(see Appendices [x+1] and [x + 2]). The
Agency plans to propose (in a  separate
notice) to modify the basis for listing
these commercial chemical products, as
well as F003, to include toxicity. Once
the basis for listing these wastes is
modified, these wastes would  no longer
be eligible for exemption under
261.3(a)(2)(iii) because they will no
longer  be listed solely for a
characteristic, and instead would be
  4 Such mixing practices are generally considered
 to be treatment of hazardous wastes requiring
 RCRA permitting, unless otherwise exempted
eligible for exemption under today's
proposal. Under the ECHO approach,
this situation could not occur because
hazardous  waste identification would be
based solely upon 40 CFR 261.3(a)(2)(iii).
The Agency requests comments on
whether the wastes listed in Table 1 for
which exemption levels exist should
continue to be eligible for exemption
under 261.3(a)(2)(iii) until such time as
the basis for listing these wastes is
modified.

Lack  of Toxicity Data and Associated
Health-Based Levels  for Appendix VII
Constituents

  The Agency is proposing that certain
listed wastes be ineligible for exemption
under today's proposal because
exemption levels cannot be derived at
this time for all of the specific
constituents for which the wastes were
originally listed in 40 CFR 261.33 or
appendix VII of 40 CFR part 261. (See
section V,  VI, and VII for discussions of
selection of exemption constituents,
development of health-based levels, and
identification of methods and
quantitation limits, respectively.) The
Agency is  proposing  that the commercial
chemical product wastes listed in Table
2 not be eligible for exemption under
today's proposal. However, the Agency
is interested in wastes, listed in Table 2,
for which there are analytical methods,
yet there are no health-based numbers.
Specifically, the Agency requests
comment on whether these wastes
should  be  eligible for today's proposed
exemption if after treatment the
constituents are not detectable in the
incineration residual.

TABLE  2.—40 CFR 261.33  COMMERCIAL
   CHEMICAL PRODUCTS THAT ARE NOT
   ELIGIBLE FOR CBEC  EXEMPTION DUE
   TO  LACK  OF  HEALTH-BASED  LEVELS
   AND/OR  ANALYTICAL METHODS

P001   Warfarin, and salts  '        	
P002  1-Acetyl-2-thiourea.2	
POOS  Allyl alcohol ' .       	
P006  Aluminum phosphide '   	
P007  5-(Aminomethyl)-3-isoxazolol '	
POOS  4-Aminopyndine '   .     ....    ...
P014  Benzenethiol ' .   .    	
P016  Dichloromethyl ether' ....     	
P017  Bromoacetone 3  . .     	
P018  Brucme 3   .      	
P023  Chloroacetaldehyde.3 	
P026  l-(o-Chlorophenyl) thiourea2	
P027  2-Chloropropionitnle.3	
P034  2-Cyclohexyl-4,6-dinitrophenol.3	
P040  O,0-Diethyl O-pyrazmyl phosphorothioate.2 ...
P041   Diethyl-p-nitrophenyl phosphate.3 	
P042  Epinephnne3  	
P043  Dnsopropyl fluorophosphate.3	
P045  Thiofanox '	
P046  a,a-Dimethylphenethylamine 2	
P047  4.6-Dimtro-o-cresolz  	
P049  Dithiobiuret3 	
P054  Ethyleneimine3  	

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21470	Federal  Register  /  Vol.  57,  No.  98 /  Wednesday. May 20,  1992  /  Proposed Rules
TABLE 2.—40 CFR 261.33  COMMERCIAL
  CHEMICAL PRODUCTS THAT  ARE  NOT
  ELIGIBLE  FOR  CBEC  EXEMPTION  DUE
  TO LACK  OF  HEALTH-BASED  LEVELS
  AND/OR  ANALYTICAL  METHODS—Con-
  tinued

P056  Fluorine3 	              	
P057  Fluoroacetamide 3
P058  Fluoroacetic acid, Na salt3
P060  Isodnn2 .    .  .       	
P062  Hexaethyl tetraphosphate 3
P064  Methyl isocyanate 3
P066  Methomyl '
P067  Azindme, 2-methyl3
P068  Methyl hydrazine 3
P069  2-Methyllactomtrile "
P070  Aldicarb '
P072  a-Napthylthiourea 3
P075  Nicotine, & salts 3
P076  Nitric oxide '
P077  p-Nitroanilme 2
P078  Nitrogen dioxide '
P084  N-Nitrosomethylvinylamme 3       . .
P087  Osmium tetraoxide '
P088  Endothall '
P093  Phenylthiourea 3
P095  Phosgene3
P096  Phosphme '
P102  Propargyl alcohol3
P105  Sodium azide 3
P107  Strontium sulfide 3
P111  Tetraethyl pyrophosphate 3
P116  Thiosemicarbazide 3
P118  Trichloromethanethiol 3            .  ..
U005  2-Acetylammofluorene 2
U006  Acetyl chloride.3
U010  Mitomycm C 3.
U011  Amitrole3
U014  Auramme3   ..        .      ....
U015  Azasenne3   .               .  .
U016  Benz[c]acndme.3    	
U017  Benzal chloride3   . .         	
U020  Benzenesulfonyl chloride 3
U024  Dichloromethoxyethane 2
U026  Chlornaphazm 3.               ...
U030  4-Bromophenyl phenyl  ether2
U033  Carbon oxyfluonde 3 .      .
U034  Chloral '  .  .
U035  Chlorambucil3   	
U039  p-Chloro-m-cresol 2
U042  2-Chloroethyl vinyl ether.2        	
U046 Chloromethyl methyl ether'
U047 beta-Chloronaphthalene ' . .
U049 4-Chloro-o-toluidme, hydrochlonde 2 . . ..
U051  Creosote.3.    ...            ....
U053 Crotonaldehyde '
U058 Cyclophosphamide3     . .      	
U059 Daunomycm 3 ..              ...
U064 Dibenzo(a,i)pyrene 3	
U071  m-Dichlorobenzene2 	
U074 1,4-Dichloro-2-butene 2    	
U082 2,6-Dichlorophenol.2	
U085 1,2-3,4-Diepoxybutane3  	
U086 N,N'-Diethylhydrazme3   	
U087 O,O-Diethyl  S-methyl dithiophosphate3.
U090 Dihydrosafrole 2	     	
U092 Dimethyl amme.2  .   ...     	
U093 p-Dimethylammoazobenzene2  . .  .
U097 Dimethylcarbamoyl chloride 3	
U098 1,1-Dimethylhydrazme.1.    ...
 U099 1,2-Dimethylhydrazme.'    ....
 U103 Dimethyl sulfate 3     	
 U114 Ethylene bis(dithiocarbamic acid),  salts and
  esters 3 	
 U115 Ethylene oxide.'	
 U116 Ethylene thiourea '	
 U126 Glycidylaldehyde '	
 U133 Hydrazine.1	
 U134 Hydrofluoric acid.3	
 U138 lodomethane.2	
 U139 Iron dextran 3	
TABLE 2.—40 CFR 261.33  COMMERCIAL
  CHEMICAL PRODUCTS THAT  ARE  NOT
  ELIGIBLE  FOR  CBEC  EXEMPTION  DUE
  TO LACK  OF  HEALTH-BASED  LEVELS
  AND/OR  ANALYTICAL  METHODS—Con-
  tinued
U141  Isosafrole2      	
U143  Lasiocarpme 3
U147  Maleic anhydride '
J148  Maleic hydrazide '
U149  Malononitnle '
U150  Melphalan3
U153  Methanethiol3  .  .
U155  Methapynlene 2
U156  Methyl chlorocarbonate '
U158  4,4'-Methylenebis(2-chloroaniline).'	
J160  Methyl ethyl ketone peroxide 3
U163  Guamdme, N-methyl-N'-nitro-N-mtroso-:
U164  Methylthiouracil 3
U166  1,4-Naphthalenedione 2
U167  alpha-Naphthylamlne 2
U170  p-Nitrophenol 2
U173  N-Nitrosodiethanolamme '
U176  N-Nitroso-N-ethylurea3
U177  N-Nitroso-N-methylurea '  .
U178  N-Nitroso-N-methylurethane3
U181  5-Nitro-o-toluidmez
U182  Paraldehyde3
U184  Pentachloroethane 2
U187  Phenacetm 2
U191  2-Picolme2
U193  1,3-Propane  sultone3      .    . .  .
U194  1-Propanamme 3           . .
U197  p-Benzoqumone3 .          ...
U200  Reserpme '  .       ...
U201  Resorcmol2  .             	
U202  Saccharin, & salts 3
U206  Streptozotocm 3
U218  Thioacetamide 2
U219  Thiourea3  .    .         .     .
U222  o-Toluidme hydrochlonde 3
U223  Toluene dnsocyanate 2 .. .
U236  Trypan blue 3.        	
U237  Uracil mustard 3  .
U238  Urethane2  .
U243  Hexachloropropene2	
U244  Thiram '    	
U248  Warfarin, and salts '
  Superscript Key
    '—No Analytical Method
    2—No Health-based Number
    3—Neither  an  Analytical Method  or a Health-
 based Number

   There are 31  listed hazardous wastes
 that were listed for certain appendix VII
 constituents that do not appear on the
 CBEC exemption list. Table 3 identifies
 these 31 wastes. For a number of these
 wastes (F020, F021, F023, F027, F028,
 K036, K037, K038, K039), the appendix
 VII entries without exemption levels
 represent broad classes of toxicants. In
 some cases, the exemption list contains
 members of these classes (for example,
 F023 is listed for  trichlorophenoxy
 esters, ethers, amines, and salts and the
 exemption list  contains 2,4,5-T and
 Silvex, members of these classes). The
 Agency is proposing that none of these
 wastes be eligible for exemption under
 today's proposal because not all of their
 appendix VII constituents are  included
 in the exemption list. The Agency is
 soliciting comments that would either
 reaffirm  this approach or suggest an
alternative approach that would allow
these wastes to remain eligible.
  It is the Agency's goal for all listed
wastes to be eligible for either CBEC or
ECHO. The Agency will use Table 3 as a
general guide to set priorities in this
effort. For those constituents which have
HBLs but lack verifiable test methods,
EPA first will develop appropriate tests.
After that effort, for those constituents
which have SW-846 test methods but
lack health-based levels, the Agency
will develop health-based levels.
Finally, the Agency will develop both
test methods and health-based levels for
those remaining constituents. The
Agency asks for comments on this
approach. The Agency also requests  any
comments, data, or proposed test
methods for the constituents listed in
Table 3.
Phased Approach

  The Agency is also soliciting
comments on the implementation of
today's proposed exemption in phases.
Under a phased approach, the Agency
would restrict exemption eligibility
initially only to certain categories of
wastes, providing the Agency with an
implementation schedule that (1) allows
the Regions and States to adopt the
program more gradually, and (2) would
provide sufficient flexibility to help
ensure successful implementation. The
universe of hazardous  waste generators,
treatment, storage and disposal facilities
is approximately 100,000 facilities. The
universe of treatment,  storage and
disposal facilities is comprised of about
5,000 facilities.  The Agency is requesting
comments on two options to limit
exemption eligibility.
   Under the first option, eligibility
would initially  be limited to treated
wastes. The Agency believes that
treated wastes are good candidates for
the first phase of a  phased approach
because (1) they are the most likely
wastes to have constituent
concentrations that meet today's
proposed exemption levels, (2) facilities
generating treated wastes are generally
very familiar with the  hazardous waste
handling requirements and thus may be
able  to develop complete demonstration
packages more readily, and (3) the
Agency is well acquainted with the
operating practices at  these facilities
due to on-going permitting and
inspection activities. Commenters
supporting this option should address
possible definitions of "treated waste".
   The second phasing option would
limit initial eligibility to facilities at
which the Agency/States currently have
oversight through the corrective action
and permitting programs. Wastes

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                 Federal Register / Vol. 57.  No. 98  / Wednesday, May  20,  1992 /  Proposed  Rules	21471
generated at these types of facilities
would be good candidates for the initial
phase of a phased approach for the
same reasons listed above for treated
wastes, but may represent a smaller
universe of potential participants and
facilities where the Agency is more
familiar with actual waste or media
characterization data. This option could
also include wastes and media at
CERCLA sites.
  A gradual phase-in of the program
balances the burden to the regulated
community of having their low
concentration wastes subject to Subtitle
C control against the administrative
burden to the Agency and authorized
States of implementation and
enforcement of the new exemption
program. The budgetary commitments
and manpower demands of
implementing this exemption program
for the entire regulated community
would require direct tradeoffs from
other elements of the program. In
addition, a shortage of properly trained
technical enforcement personnel
necessary to implement this new
program immediately is an Agency
concern. Because the exemption
program proposed today would be
generally self-implementing, the Agency
recognizes that it will be necessary to
place a high priority upon  compliance
monitoring and enforcement. By phasing
in this program, the Agency would be
able to develop inspection guidance
based upon the initial implementation
experience under either of the phasing
options. A phased approach would
provide additional time and experience
to develop and present training for
Regional EPA and State inspectors,
improving their abilities to make sound
technical reviews of exemption
demonstrations.
  The Agency is proposing several
approaches for implementation m
Section XI of today's notice. One
approach would require that facilities
applying for exemptions must perform
testing of the wastes, notify the
appropriate agency and provide test
results on request, and maintain records
in order to qualify for the exemption. A
phased approach  would give the Agency
experience in reviewing the sampling
and analysis plans and testing records.
During the initial implementation phase,
the Agency would be able to evaluate
the need for any special regulatory
requirements to deal with unique
problems associated with particular
wastes. Using this experience, the
Agency can decide whether revision  of
the exemption criteria is necessary. It
will also provide the Agency the time to
assess generally any environmental and
administrative issues that arise during
implementation of the exemption
program.
     TABLE 3.—INELIGIBLE LISTED HAZARDOUS WASTES WITH APPENDIX VII CONSTITUENTS LACKING CBEC EXEMPTION LEVELS
  List Nos       Appendix VII constituents without exemption levels
                                Appendix VII constituents with exemption levels
F020        tetrachlorophenoxy  esters, ethers,  amines, salts, acids
              (M)
F021        pentachlorophenoxy acids, esters, ethers,  amines, salts
              (M)
F023        tn- and tetrachlorophenoxy esters, ethers,  amines, salts
              (M)
F024        pentachloroethane (H), hexachlorocyclohexane (H),  m-
              dichlorobenzene (H)
F025        pentachloroethane (H) m-dichlorobenzene (H)
F027, F028   tn-, tetra-, and pentachlorophenoxy acids, esters, ethers,
              amines, salts (M)
K001        p-chloro-m-cresol (H) Acenaphthylene (H)
K009        paraldehyde (B), formaldehyde (Q)
K010        paraldehyde (B), chloroacetaldehyde  (B),  formaldehyde
              (B)
K017        bis(chloromethyl) ether (B), dichloropropanols (M-B)
K019, K020   vmylidene chloride (B)
K023        maleic anhydride (Q)
K024        1,4-naphthoqumone (H)
K026        paraldehyde (B), 2-picolme (H)
K027        toluene dnsocyanate (H)
K036. K037   phosphorodithioic acid and acid esters (M)
K039        phosphorodithioic acid and acid esters (M)
K038, K040   phosphorodithioic acid, acid esters (M), formaldehyde (Q)
K043        2,6-dichlorophenol  (H)
K093, K099   maleic anhydride (Q)
K116        phosgene (B)
K123, K124   ethylene thiourea (B)
  K125.
  K126
K131        dimethyl sulfate (B)
                tetrachlorodibenzo-p-dioxms and -furans, pentachlorodibenzo-p-dioxms and -furans, trich-
                 lorophenols, tetrachlorophenols
                pentachlorophenol, pentachlorodibenzo-p-dioxms and -furans.  hexachlorodibenzo-p-diox-
                 ms and -furans
                tetrachlorodibenzo-p-dioxms and -furans, pentachlorodibenzo-p-dioxms and -furans, trich-
                 lorophenols, tetrachlorophenols, trichlorophenoxy acids
                allyl chloride, chloromethane, 2-chloro-1,3-butadiene, dichloromethane, trichloromethane,
                 carbon tetrachloride, 1,1-dichloroethane,  1,2-dichloroethane, trans-1,2-dichloroethene,
                 1,1-dichloroethene,   1.1,1-tnchloroethane,   1.1,2-tnchloroethane,  tnchloroethylene,
                 1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane,  tetrachloroethylene,  hexachloro-
                 ethane, dichloropropane, dichloropropene, hexachloro-1,3-butadiene,  hexachlorocyclo-
                 butadiene, benzene, chlorobenzene, dichlorobenzenes, 1,2,4-tnchlorobenzene, tetrach-
                 lorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene
                allyl chloride, chloromethane, 2-chloro-1,3-butadiene, dichloromethane, trichloromethane,
                 carbon tetrachloride, 1,1-dichloroethane,  1,2-dichloroethane, trans-1,2-dichloroethene,
                 1,1-dichloroethene,   1,1,1-trichloroethane,   1,1,2-tnchloroethane,  tnchloroethylene,
                 1,1,1,2-tetrachloroethane, 1,1.2,2-tetrachloroethane,  tetrachloroethylene,  hexachloro-
                 ethane, dichloropropane, dichloropropene, hexachloro-1,3-butadiene,  hexachlorocyclo-
                 butadiene, benzene, chlorobenzene, dichlorobenzenes, 1,2,4-trichlorobenzene, tetrach-
                 lorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene
                tetra-, penta-,  and hexachlorodibenzo-p-dioxms and  -furans, tn-, tetra- and pentachloro-
                 phenols, trichlorophenoxy acids
                pentachlorophenol, phenol, 2-chlorophenol, 2,4-dimethylphenol, 2,4-dmitrophenol, trichlor-
                 ophenols,   tetrachlorophenols,  creosote,   chrysene,  naphthalene,   fluoranthene,
                 benzo(b)fluoranthene,   benzo(a)pyrene,   mdeno(1,2,3-cd)pyrene,  benz(a)anthracene,
                 dibenz(a)anthracene
                formic acid, chloroform, methylene chloride,  methyl chloride
                formic acid, chloroform, methylene chloride,  methyl chloride

                epichlorohydrm, 1,2,3-trichloropropane, bis(2-chloroethyl) ether
                ethylene  dichlonde,  1,1,1-tn-chloroethane,  1,1,2-trichloroethane,  tetrachloroethanes
                 (1,1,2,2-tetrachloroethane and 1,1,1,2-tetrachloroethane), tnchloroethylene, tetrachlor-
                 oethylene, carbon tetrachlonde, chloroform, vinyl chloride
                phthalic anhydride
                phthalic anhydride
                pyndme
                2,4-toluene diamme
                toluene

                phorate
                2,4-dichlorophenol, 2.4,6-tnchlorophenol
                phthalic anhydride
                carbon tetrachloride, tetrachloroethylene, chloroform
                                                            methyl bromide
   (Q) Lacks SW-846 method
   (H) Lacks health-based levels
   (B) Lacks both SW-846 method and health-based levels
   (M) Indicates class or mixture

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Federal Register / Vol.  57,  No. 98 / Wednesday, May 20, 1992 / Proposed Rules
  Table 4 presents the wastes listed in
§ 261.33 which the Agency is proposing
to be eligible for exemption because
they are currently represented in larger
analytical classes on the exemption list.
For example, P010 wastes (arsenic acid)
are represented by the element arsenic
on the exemption list.

TABLE 4.—40  CFR  261.33  Commercial
  Chemical Products That Are Eligible for
  CBEC  Exemption  Because They Are
  Represented by Other Constituents on
  the Exemption List

P010 Arsenic acid (as As) 	
P011 Arsenic oxide (as As)	
P012 Arsenic tnoxide (as As)	
P013 Barium cyanide (as Ba, CN)	
P021 Calcium cyanide (as CN)	
P029 Copper cyanide (as CN) ...
P031 Cyanogen (as CN)	
P033 Cyanogen chloride (as CN)	
P036  Dichlorophenylarsine (as As).   .     	
P038  Diethylarsme (as As)	
P063  Hydrogen cyanide  (as CN)    	
P065  Mercury fulminate (as Hg)  . . .     	
P073  Nickel carbonyl (as Ni)	           .  .
P074  Nickel cyanide (as  Ni, CN)       ...
P092  Phenylmercury acetate (as Hg)  	
P098  Potassium cyanide (as CN)
P099  Potassium silver cyanide (as Ag, CN)
P101  Ethyl cyanide (as CN)     	
P103  Selenourea (as Se)	    	
P104  Silver cyanide (as Ag, CN)	
P106  Sodium cyanide (as CN)     	
P113  Thallium oxide (as  Tl)   ...      	
P114  Thallium selenite (as Tl, Se).     ....
P115  Thallium sulfate (as Tl)    	
P119  Vanadic acid, ammonium salt (as V)  	
P120  Vanadium pentoxide (as V)	
P121  Zinc cyanide (as CN, Zn)	
U032  Calcium  chromate (as Cr)     	
U136  Arsenic acid, dimethyl (as As)
U144  Lead acetate (as Pb)	
U145  Lead phosphate (as Pb)    	
U146  Lead, bis(aceto-O) tetrahydroxytn-  (as Pb). ...
U196  Selenium dioxide (as Se)	
U204  Selenious acid/Selenium dioxide (as Se)....
U205  Selenium sulfide (as Se)    ....    .  . .
U214  Thallium acetate (as Tl)	
U215  Thallium carbonate (as Tl)	
U216  Thallium chloride (as Tl)   .    	
U217  Thallium nitrate (as Tl)	
U246  Cyanogen bromide (as CN)	    ....
   The Agency evaluated the
 constituents on Table 4 and notes that
 health-based levels exist for a number
 of these compounds. In most cases,
 these health-based levels are higher
 than the health-based levels for the
 corresponding parent metals. In two
 cases, however, the health-based level
 was significantly lower than the parent
 metal, i.e., for Hazardous Waste
 Numbers PllO, tetraethyl lead and
 U249/P122, zinc phosphide. Due to the
 lack of SW-846 analytical methods for
 these types of compounds and the
 significant differences in health-based
                         levels for lead, tetraethyl lead, zinc, and
                         zinc phosphide, the Agency is proposing
                         that PllO, U249, and P122 wastes be
                         ineligible for exemption under today's
                         proposal. Several other compounds on
                         Table 4 have health-based levels that
                         are approximately one order of
                         magnitude, or less, lower than the
                         health-based levels for the
                         corresponding parent metals: P029—
                         Copper cyanide;  U204—Selenious acid;
                         and P114—Thallium selenite (see the
                         docket for this notice for further
                         information). The Agency is proposing
                         to allow exemption of these wastes due
                         to the relatively small differences
                         between the health-based levels of
                         concern and request comment on this
                         proposal.

                         Limitations of SW-846 Methods for
                         Appendix VII Constituents

                            The Agency also requests comment on
                         whether certain listed wastes should be
                         ineligible for exemption under today's
                         proposal because of limitations
                         associated with the analytical
                         quantitation for some of their appendix
                         VII constituents. Table 5 lists those
                         appendix VII constituents that cannot
                         be quantitated readily at the health-
                         based exemption level assuming a DAF
                         of 1 (option 3). While the majority of
                         these wastes  are already proposed to be
                         ineligible for exemption because health-
                         based levels are not available for all of
                         their appendix VII constituents (see
                         Table 3), the Agency requests comments
                         on whether they should also be
                         ineligible because of expected analytic
                         challenges in quantitating certain
                         appendix VII constituents at their
                         health-based exemption levels.
                            Specifically, the Agency is most
                         concerned with the exemption eligibility
                         basis for those wastes that have
                         appendix VII constituents whose
                         exemption levels are more than two
                         orders  of magnitude lower than their
                         respective quantitation limits (Qls) (see
                          Group  I in Table 5). The Agency is less
                          concerned with the Group II
                          constituents because analysts can
                          frequently lower detection limits by one
                          order of magnitude by carefully fine-
                          tuning the analytical equipment.
TABLE 5.—APPENDIX VII CONSTITUENTS
  WITH QUANTITATION LIMITS (QLS) THAT
  EXCEED THEIR HEALTH-BASED LEVELS
  (HBLs) BY MORE THAN ONE ORDER OF
  MAGNITUDE
Group  I:  QL >  100  X HBL
   Acrylamide	
   2,4=Dimtrotoluene	
   2 = Nitropropane	
   2,4=Toluenediamme	
Group II: 10 x  HBL < QL <
  100 X HBL
   Benzotnchlonde	
   Bis(2-chloroethyl) ether 	
   1,3 = Dichloropropene	
   Epichlorohydrin	
   Hexachloro-1,3-butadiene..

   Pentachlorophenol	
    Phenylene diamine..
    o-Toluidme	
    p-Toluidme	
                         Appendix VII basis
K014
K025, K111
F005
K027*, K112,
  K113, K114,
  K115
K015
K017*
F024*
K017*
K016, K018, K030,
  F024*
F021*, F027*,
  F028*, K001
K103, K104, K083
K112, K113, K114
K112, K113, K114
  * These wastes are proposed to be ineligible for
exemption due to the lack of CBEC levels for some
of the appendix VII constituents for which they were
listed

   The Agency is requesting comments
on whether it is necessary to list as
ineligible those wastes with appendix
VII constituents that cannot be routinely
analyzed using SW-846 methods within
two orders of magnitude of the
exemption level. The Agency believes
that most wastes that may contain these
constituents of concern will also contain
constituents with analytically
achievable exemption levels which may
act as adequate surrogates. In addition,
generators of these wastes are
experienced in their analyses and may
be able to achieve the necessary
quantitation limits readily, although not
by SW-846 methods. The Agency also
notes  that as the state of the art in
analytical techniques is advanced, the
Agency expects to lower the Qls listed
in Appendices [x+1] and [x+2] for
these  constituents.

Dioxin Wastes

   The Agency also requests comments
on whether the  "dioxin listings" (that is,
F020-23 and F026-28) should be eligible
for exemption under today's proposal or
whether instead they should only be
exempted (when appropriate) through
the  delisting process. As discussed
earlier, four of these wastes are
currently proposed to be ineligible for
 exemption because not all of their

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               Federal Register /  Vol. 57, No. 98 / Wednesday, May 20. 1992  /  Proposed Rules	21473
appendix VII constituents are included
in the exemption list. Six of the seven
dioxin listings are listed as acutely toxic
and are currently subject to more
stringent management controls under 40
CFR 264 and 265 than other types of
listed hazardous wastes. In addition, as
can be seen from Table 3, there are a
number of appendix VII constituents for
these  wastes that are identified as broad
chemical classes (e.g.
pentachlorophenoxy acids, amines,
esters, ethers, salts) and, as such, are
not readily amenable to analysis or the
development of health-based levels.
Reviewing exemption demonstrations
for these wastes through the delisting
process may provide added controls
which are appropriate for these wastes.
  In addition, as described in section
II.F.2, the Agency is requesting
comments on whether there is a need for
a redesignation mechanism for dioxin
wastes (to reclassify wastes with low
dioxin levels from acutely toxic to
hazardous) through either the exemption
process proposed today or the listing
mechanisms.
Oil Content
  The Agency is soliciting comments on
whether additional restrictions for
eligibility, such as criteria based on a
percent oil content, are needed. Oily
matrices present analytical difficulties
which generally prevent analysts, using
prescribed methods, from achieving
necessary quantitation levels. In
addition, the efficiency of the Agency's
leaching procedures can be reduced for
oily wastes. By  specifying a maximum
allowable percent oil content as an
exemption eligibility criteria, facilities
could use this level as a simple
screening test to predict whether it is
analytically feasible to attempt an
exemption demonstration. The Agency
envisions that a maximum allowable
percent oil content would be  on the
order of 1.0 percent total oil and grease.
(In the delisting program, this is the level
at which the Oily Waste Extraction
procedure is required because 1% oil
and grease was estimated to  be the
amount which could coat a solid waste
and temporarily inhibit leaching
measurements in the EP test.) The
Agency requests comments on whether
this criteria should be  included in the
exemption criteria proposed today and
on the appropriateness of the 1.0 percent
level, as well as on similar wastes that
should not be eligible for exemption
under today's proposal and that can be
screened using similar criteria. The
Agency requests comment on the
volume of wastes which may be
excluded if oily wastes above 1% are
deemed ineligible for these exemptions.
In addition, the Agency asks for
comment on new leachate tests or
modifications to the existing TCLP to
simulate leaching from oily wastes.
Leachate From a Subtitle D Landfill
Containing Newly Listed Wastes
  Several parties have raised to EPA the
case of leachate from a subtitle D
landfill which receives solid wastes that
subsequently become listed hazardous
wastes.  Under the current regulations,
the leachate would become listed
hazardous waste due to the derived-
from rule. The options presented in
today's notice may address this
situation by  setting concentration-based
exemption levels for toxic constituents
that may be  in the leachate. However, in
their comments to the Agency,
Browning-Ferris Industries (BFI)
expressed concern regarding the
uncertainty of industrial wastes which
the Agency may list in the future and the
retroactivity of the derived-from rule on
leachate generated from previously
unlisted wastes and on gas condensate
(see BFI comments, March 18,1992). BFI
believed that retroactivity "penalizes"
facilities which manage leachate from
previously unlisted wastes and may be a
disincentive for environmentally
responsible activities such as thorough
recordkeeeping, active leachate
management, and installation of a gas
recovery system.
  EPA asks for additional information
regarding what actual operational
problems arise in the management of
this leachate. The Agency would like
information as to whether the generic
concentrations proposed in this
regulation would exempt low risk
leachate and gas condensate is such
situations. Also, the Agency is aware
that at some landfills, leachate from
sumps which are part of the leachate
collection system may be collected by
trucks and transported to on-site waste
water treatment systems. EPA asks for
comment on the appropriateness of
extending the RCRA waste water
treatment in tanks exemption to cover
this situation, even though the sumps
are not "hard-piped" to the on-site
waste water treatment system.
Accidental Spills
  There are  a number of situations
resulting from the mixture rule which
causes frustration to the regulated
community. One is spills of listed
hazardous waste. When an accidental
spill occurs of listed hazardous
materials, there is a danger that
everything the material contacts
automatically becomes a hazardous
waste, too. For example, a spill of a
listed material into a wastewater
treatment system can cause all sludges
in that system to become subject to
hazardous waste management
requirements. The unintentional spill
causes waste code carry-through
problems. EPA requests comment on
whether these types of spills are
adequately addressed under the de
minimi's spill exemption at 40 CFR
261.3(a)(2)(iv)(D) or if other solutions are
necessary and what these solutions are.
  EPA recognizes that these are mostly
accidental spills and requests comments
from the public on what approaches
could be used for dealing with such
events. Are the options described in
today's Notice suitable for dealing with
spills? Another concern that has been
raised is whether or not the testing
requirements of this proposal are
suitable for these situations. The Agency
seeks comments on reasons why they
may or may not be suitable.

Very Small Volume Wastes

  Similarly, frustration in the regulated
community is caused by the mixture rule
as it pertaining to very small volume
wastes such as boiler blowdown.
Slowdown volumes may be very small
in relation to the volume of process
wastewaters (i.e., boiler blowdown of
100 gallons mixed with one million
gallons of process wastewater) yet
because the two wastestreams are
mixed, the mixture becomes a
hazardous waste. Where a very small
wastestream carrying a hazardous
waste code mixes with a very large
wastestream without such a code,  it is
unlikely that the resulting wastestream
or its sludges will be hazardous because
of the listed wastes; however, the
mixture might be above CBEC levels
because of constituents in the unlisted
wastewaters. Further, EPA notes that
periodic testing requirements may not
be well-suited to the situation of an
incidental spill causing a temporary
spike in values. The Agency solicits
comment on whether or not today's
Notice contains possible solutions to
this situation or whether some special
solution to it is available.
Industrial Wipes

  The Agency requests comment on
industrial wipes which have been
contaminated with a listed solvent or
listed solvent mixture. Under the current
regulatory framework, these
contaminated wipes may be regulated
as the listed hazardous wastes. Under
several of the options proposed today,
these generators would still need to test
the wipes or use knowledge to
determine if these contaminated wipes
were exempted. Data, which appears in

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21474
Federal  Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed  Rules
the record for today's proposal (see
comments by Sidley and Austin, P.C. on
behalf of Kimberly-Clark Corporation,
April 2,1992), indicate that levels of
toxic organic constituents in wipes
contaminated with some of the solvents
regulated by the F001-F005 listings
appear to be extremely low. The Agency
requests  comment on whether these
wipes should continue to be regulated
by the mixture rule as listed hazardous
wastes.
   Specifically, EPA requests comment
on an alternative approach for
addressing wipes contaminated with a
solvent regulated in the F001-F005
listings, which is a specific rule that
states if these materials are not visibly
contaminated, then the F001—F005
listings would apply as characteristics
rather than as listings. Very simple
criteria which are easily implemented at
the point of use, such as spent wipes
which do not drip solvent even when
wrung out, could be the basis for
determining "visibly contaminated".
Under this approach a generator may
use knowledge, such as the sort
suggested in the Kimberly-Clark
comments, to determine whether wipes
that are not "visibly contaminated", at
the point of use, would contain
leachable quantities of the solvents that
are regulated under by the F001-F005
listing at levels greater than exemption
criteria.  EPA believes that this approach
might be a practical solution to an issue
that has  been problematic for years. The
simple field test to limit this
modification of the listings, and the
operation of the listings as a narrowly
focused  characteristic, would act as a
 safeguard which protects the
 environment while recognizing that
 wipes are widely used and recognizing
 evidence that concentrations of
 hazardous constituents in the wipes can
 be quite low.
 B. Waste Management Units
   The Agency is proposing that CBEC or
 ECHO wastes are exempt from the time
 of a proper notification and that
 notifications are not retroactive (see
 Section  XI of this preamble). Units that
 have been managing hazardous wastes,
 including CBEC or ECHO wastes, will
 not automatically become exempt.
 Instead, such a unit will be expected to
 go through closure procedures to show
 that no  environmental damage was done
 by past  management of wastes. In many
 cases, hazardous waste management
 units may have been used to manage
 hazardous wastes other than the
 exempted wastes and EPA is concerned
 that a self-implementing rule is not the
 right procedure to evaluate historical
 waste management practices.
                          The Agency has evaluated a number
                        of delisting petitions where the waste
                        met the delisting criteria, but the facility
                        was subject to corrective action due to
                        contamination and/or existing ground-
                        water contamination exceeding the
                        health-based  levels used in delisting
                        evaluations. In these cases, the
                        contamination was greater than would
                        be expected based on an evaluation of
                        the waste alone, indicating that perhaps
                        the more hazardous constituents had
                        preferentially migrated into underlying
                        aquifers, or that the petitioned waste
                        had been treated in  the unit to reduce
                        hazardous constituent concentrations, or
                        that historical waste management
                        practices had impaired the quality of the
                        underlying aquifer.
                          The Agency believes that these units
                        should continue to be subject to
                        applicable subtitle C requirements
                        including closure standards (see further
                        discussion under section XIII E). The
                        Agency believes that the evaluation of
                        the impact of a  unit on the environment,
                        particularly the impact of land disposal
                        units on groundwater and the
                        determination of whether the unit ever
                        managed non-CBEC hazardous wastes,
                        is more complicated than can be
                        accounted for in this type  of self-
                        implementing program. The Agency is
                        particularly concerned that units
                        containing wastes that meet today's
                        exemption criteria and have ground-
                        water contamination should not be
                        exempted from subtitle C  control. The
                        Agency  requests comment on this
                        approach and alternative approaches to
                        regulating units which have managed
                        exempt wastes.
                         C. Existing Regulatory Exemptions From
                         the Mixture and Derived-From Rules
                           EPA notes that there are currently
                         numerous exemptions from the
                         hazardous waste identification system,
                         particularly the mixture and derived-
                         from rules, for certain types of wastes or
                         wastes with  certain constituent
                         concentrations. See e.g. 40 CFR
                         261.3(a)(2)(iv) (A) through (E). In light of
                         today's  proposal, EPA asks for
                         comments on whether these exemptions
                         continue to be  warranted. EPA requests
                         comment on whether these exemptions
                         should be retained and the rationale for
                         retaining them.
                         V. Selection of Constituents of Concern
                           The Agency is proposing exemption
                         levels for 200 hazardous constituents. To
                         develop this list of constituents, EPA
                         first compiled a master list that included
                         all hazardous constituents identified in
                         40 CFR part  261, appendices VII and
                         VIII, and/or part 264, appendix IX. EPA
                         then developed exemption
concentrations for all of the compounds
on the master list for which SW-846
analytical methods and health-based
levels are available. The resulting list is
being proposed as the "exemption
constituent list" (see appendices [x+1]
and [x+2] of the proposed rule).
  The background on the selection of
compounds for the exemption list is
presented below and further discussed
in supporting documentation for this
proposal included in the public docket.
  This extensive exemption list was
developed because the Agency believes
that it is necessary to require facilities
to analyze their wastes for a broad
range of constituents in a self-
implemented exemption demonstration.
First, it is not feasible in a  self-
implemented program to predict
consistently which specific hazardous
constituents will be present in a given
waste because process-specific
characteristics, feedstock contaminants,
waste mixing practices, and degradation
will cause the constituent profiles to
vary. Secondly, by establishing a set list
of exemption constituents, the Agency
will ensure that all exempted wastes
have been evaluated on a consistent
basis. Third, this approach is in keeping
with section 3001 (f) of HSWA which
directs the Agency to examine other
factors (including other constituents)  in
addition to those factors for which a
waste was originally listed as hazardous
when evaluating delisting  petitions.
Finally, a set list of constituents will
minimize the potential for disputes over
which constituents  of concern need to
be identified in particular wastes. As
will be discussed further in section
XII.B, the Agency is soliciting comments
on alternatives to reduce the  list of
constituents for which  testing is required
after the initial demonstration [i.e., in
subsequent recertification
demonstrations).
A. Universe of Hazardous Constituents
   The master list of potential exemption
 constituents was compiled from the
 primary lists of constituents used by
 EPA to regulate hazardous and solid
 waste activities under RCRA. These lists
 included: (1) The list of hazardous
 constituents found  in 40 CFR part 261,
 appendix VIII (hereafter referred to as
 appendix VIII), (2) the list of hazardous
 constituents found in 40 CFR part 261,
 appendix VII (hereafter referred to as
 appendix VII), and (3)  the list of
 constituents for which ground-water
 monitoring data are required at
 hazardous waste land disposal units
 found in 40 CFR part 264,  appendix IX
 (hereafter referred to as appendix IX).
 The Agency believes that these sources

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               Federal Register  /  Vol. 57, No. 98 / Wednesday, May  20, 1992 / Proposed Rules        21475
encompass most of the known
hazardous constituents of concern. The
Agency, however, requests comments on
whether additional constituents should
be added to this list. (The master list
and the Agency's determination of
which constituents should be used in the
exemption criteria  are available for
review in the public docket to this rule.)
B, Development of the Exemption
Constituent List
  The Agency carefully evaluated the
master list to determine which
constituents should be included in the
exemption constituent list. This Section
describes the steps that were taken in
the development of the exemption
constituent list.

Identification and Deletion of Classes
and Mixtures
  As a first step, chemical classes and
mixtures were deleted from the master
list because it is not generally possible
to develop analytical quantitation limits
or health-based levels for these groups
of constituents. Instead, the Agency
verified that specific compounds from
each of these classes and mixtures were
present on the master list. Examples of
these groups include chloroethers,
chlorofluorocarbons, and phenolic
compounds. The full list of 33 chemical
classes and mixtures that were deleted
from the master list and the constituents
on the  exemption list which were used
as representatives  of these groups are
available in the docket.
Deletion of Analytically Redundant
Constituents
  The Agency also eliminated
constituents from the master list that are
identified analytically as metallic or
inorganic species. For example, several
inorganic salts  of chromium are listed in
Appendices VII, VIII, and IX. Generators
of wastes containing these salts
analyze/determine the elemental
chromium content rather than the
metallic species for the purposes of
compliance with the Toxicity
Characteristic.  This approach will
continue to be used in this proposal. The
metallic compounds deleted  from the
master list are identified in the
background document.
Availability of Health-Based  Levels
  As will be discussed further in Section
VII, the Agency evaluated the existing
toxicity information for the candidate
master list constituents to determine
whether sufficient data exist to establish
a health-based  level. Those constituents
for which sufficient data did not exist
were not included on the exemption list.
The Agency then prioritized  (based on
prevalence in wastes and media) for
further study those constituents for
which health-based levels could not be
derived. The prevalence analysis is
available in the background document
for today's notice. At such time as
health-based levels can be derived, the
Agency may propose to add these
constituents to the exemption list (as
well as to Appendix VIII where
appropriate):
                   Malononitrile*
                   2-Methyllactonitnle +
                   4-Nitrophenol*
                   Propargyl alcohol
                   * Sodium fluoracetate
                   Thiophenol
                   1.2,3-Trichlorobenzene +
                   Trichloromethanethiol *
                   m-Xylene +
                   p-Xylene +
Acenaphthylene +
Anthracene +
Bis(2-chloroethoxy)-
  methane* +
Brucine
2-Chloronaphthalene
Crotonaldehyde
1,3-Dichloropropanol*
2,3-Dichloropropanol
2-Fluoroacetamide*
  -(-Indicates that constituent is not currently listed
on Appendix VII.
  'These compounds were tested by manufacturers.
The results were submitted to EPA and are currently
being evaluated (TSCA Section IV Test Rule for
OSW Chemicals, June 15, 1988. 53 FR 22301).

  The  Agency also solicits toxicity data
from the public to support the levels
proposed  today, as well as additional
data for constituents that are not
currently  on the exemption list. Data on
environmental and health effects of a
constituent should, when possible,
follow the toxicity testing guidelines of
40 CFR 797 and 798. (See 50 FR 39252,
September 27,1985, Toxic Substances
Control Act Test Guidelines.)

Availability of Analytical Methods
  The  Agency then reviewed the
availability of analytical methods for the
quantitation of candidate constituents in
solids  and aqueous media. The Agency
has deleted all constituents from the
exemption list which do not yet have
SW-846 analytical methods. As methods
are developed, the Agency may propose
to add these compounds to the
exemption list. The Agency requests
comments on this approach or others
(such as mass balance demonstrations)
to address compounds lacking
analytical methods.

Consideration of Chemically Unstable
Constituents
  The  Agency considered removing
chemically unstable constituents from
the master list on the basis that,  due to
chemical  degradation or transformation,
such constituents actually may not be
found  in wastes and the environment.
Several problems, however, were
created by this approach. Chemical
instability, such as hydrolysis,
dissociation, reactivity, etc., is highly
variable under various environmental
conditions. In addition, the degradation
or transformation products of certain
hazardous constituents may be more or
less toxic than the original compounds.
Due to this variability and the
difficulties associated with predicting
the degree of degradation or the  rates of
competing transformation mechanisms
which may occur in the environment, the
Agency is proposing an approach which
assumes that any degradation or
transformation that may occur will have
already occurred by the time that the
waste or medium is characterized. Thus,
the exemption criteria includes a
number of constituents which are
known to be unstable under certain
conditions (acrolein, benzotrichloride,
epichlorohydrin, methyl methacrylate,
phthalic anhydride, tribromomethane),
as well as many known toxic
degradation and transformation
products. The Agency believes that this
is a reasonable approach which, while it
may underestimate hazard for those few
constituents that can transform into
more toxic products, is conservative for
most constituents. The Agency
specifically requests comment on this
approach.
  The Agency does not believe that this
will be overly burdensome to generators
who choose to make an exemption
demonstration because the analytical
methods listed in appendices [x+1] and
[x + 2] for the analysis of these
constituents are already necessary to
analyze for other exemption
constituents.
Modifications to 40 CFR 261, Appendix
VIII

  As a result of the development of the
exemption list,  the Agency has
identified a number of constituents
which should be added to appendix VIII
of part 261. This appendix is the list of
hazardous constituents which serve as
the basis for hazardous waste listing
determinations. Section XII provides
additional details regarding the
constituents proposed for addition to
this appendix.
C. Evaluation of Constituents Omitted
From Exemption List

  While the Agency is  proposing a
subset of the master list of hazardous
constituents as the exemption list, this
does not mean that any omitted
constituents are not hazardous. Omitted
constituents may not be toxic but may
be hazardous due to ignitability,
reactivity, or corrosivity,  and
accordingly will be regulated when
present in a waste at levels which
trigger the respective hazardous waste
characteristics. Other omitted
constituents may be toxic, but currently
available data does not allow for the
establishment of health-based levels.
Similarly, other constituents may be
hazardous but current analytical state-
of-the-art techniques do not allow for
their detection in potentially exempted
waste or media. As new health effects
data and analytical techniques are

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21476	Federal  Register / Vol. 57, No.  98 / Wednesday, May  20.  1992 / Proposed Rules
developed, the Agency may propose to
add these constituents to the exemption
list.
  The Agency is most concerned with
the appendix VII constituents that are
not included on the exemption list. Some
of these constituents were omitted for
lack of health-based data or appropriate
analytical methods. (See section IV.A)
These constituents are among the
Agency's first priorities for the
development of health-based numbers
and are listed below:
Appendix VII Constituents With No SW-846
Analytical Methods
Bis(2-chloromethyl)ether
Formaldehyde (in soils)
Maleic anhydride
Appendix VII Constituents With No HBNs
Acenaphthylene
p-Chloro-ni-cresol
1,3-Dichlorobenzene
2,6-Dichlorophenol
Hexachlorocyclohexane
1,4-Naphthoquinone
Pentachloroethane
2-Picoline
Toluene diisocyanate
Vinylidene Chloride
Appendix VII Constituents With No HBN or
SW-846 Analytical Methods
Chloroacetaldehyde
Paraldehyde
Phosgene

VI. Health-Based Levels
   For each constituent on the master
 list, the Agency evaluated the existing
 toxicity information to determine
 whether there were sufficient data to
 establish a health-based level. For these
 toxicants, the data were evaluated
 either by the Agency's CRAVE
 (Carcinogen Risk Assessment
 Verification Endeavor)  Workgroup,
 Carcinogen Assessment Group (GAG),
 Reference Dose (RfD) Workgroup, or
 Environmental Criteria Assessment
 Office  (ECAO-Cincinnati). This
 approach is consistent with the
 approach used in the Agency's other
 risk-based RCRA programs such  as the
 Toxicity Characteristic, delisting
 petition evaluations, closure, and
 corrective action, as well as the
 CERCLA program. The background
 documents for this proposal are
 available in the public docket and
 provide details on the basis for the
 health-based levels for each constituent.

 A. Health Effects
   The Agency evaluated two main types
 of health effects when establishing the
 exemption levels: systemic toxicity and
 carcinogenicity. The Agency's approach
 to assessing the risks associated with
 these two pathways differ because
 different mechanisms of action are
thought to be involved in the two cases.
In the case of carcinogens, the Agency
assumes that a small number of
molecular events can evoke changes in a
single cell that can lead to uncontrolled
cellular proliferation. This mechanism
for carcinogenesis is referred to as "non-
threshold", because there is essentially
no level of exposure for such a chemical
that does not pose a small, but finite,
possibility of generating a carcinogenic
response.  In the case of systemic
toxicity, compensating and adaptive
(including organic homeostatic) cellular
mechanisms exist that must be
overcome before the toxic endpoint is
reached. For example, there could be a
large number of cells performing the
same or similar function whose
population must be significantly
depleted before the effect is  seen. The
"threshold hypothesis" is based on the
theory that a range of exposures from
zero to some finite value can be
tolerated by the organism with
essentially no  chance of expression of
the toxic effect.
  For both carcinogens and non-
carcinogens, the Agency is proposing to
use any available Maximum
Contaminant Levels (MCLs) proposed or
promulgated under the Safe  Drinking
Water Act (SDWA) of 1974,  as amended
in 1986, as the health-based  levels for
exposure to liquids or leachates. In
general, MCLs for non-carcinogens are
derived from the Reference Doses
 (RfDs), while MCLs for most
carcinogens are set as close to zero as
 technically feasible; this normally
 corresponds to risk levels that range
 from 10-4 to 10-6. (Note that, although
 the derivation of MCLs considers factors
 in addition to health effects, it also
 considers other routes of exposure. The
 Agency's policy has been to use MCLs,
 when available, in other similar
 concentration-based programs, including
 delisting, clean closure, and corrective
 action.) For those constituents which do
 not yet have MCLs or proposed MCLs,
 the Agency is proposing to use oral
 reference doses (RfDs) for non-
 carcinogens and oral Risk Specific
 Doses (RSDs) for carcinogens as
 described further below. However, if
 new MCLs  are proposed or finalized
 under the SDWA prior to the
 promulgation of today's rule, the Agency
 proposes to substitute the new MCLs for
 the RfDs, RSDs, and proposed MCLs
 presented in today's notice. The Agency
 requests comments on this proposed
 approach to incorporating proposed and
 finalized MCLs in the final exemption
 rule.
1. Non-Carcinogens

  The Agency proposes to use oral RfDs
as the basis for: (1) The leachate
exemption levels for those non-
carcinogenic constituents that do not
have proposed or promulgated MCLs,
and (2) the contaminated soil exemption
levels for all non-carcinogens (MCLs do
not apply to soils). An RfD is an
estimate (with uncertainty spanning
perhaps an order of magnitude) of a
daily exposure to a substance for the
human population  (including sensitive
subgroups) which appears to be without
an appreciable risk of deleterious effects
during a lifetime. For brief periods and
for small excursions above the RfD,
adverse effects are unlikely to occur in
most of the population. However, as the
frequency of exposures exceeding the
RfD increases, and as the magnitude
and duration of exposure above the  RfD
increases, the probability that adverse
effects may be observed also increases.
   The method for estimating the RfD for
non-carcinogenic end-points was
described in the proposed rule for the
Toxicity Characteristic (see 51 FR 21648,
June 13,1986). In summary, the approach
used to derive an RfD is to identify the
highest test dose of a constituent
associated with no effects or effects that
are not considered adverse in an
appropriate animal bioassay test. These
experimental no-observed-adverse-
effect-levels (NOAELs) or no-observed-
effect-levels (NOELs) are considered to
be an estimate of the animal
population's physiological threshold for
 adverse effects. The RfD is derived by
 dividing the NOAEL or other toxicity
 benchmark by suitable scaling or
 uncertainty and modifying factors. In the
 event that an appropriate NOAEL or
 NOEL is not available, the lowest-
 observed-adverse-effect level (LOAEL)
 may be used with additional scaling
 factors.
   It is important to note that information
 on exposure levels in the environment
 (e.g., background levels) are not
 considered in the development of an
 RfD. Rather, the oral RfD reflects the
 total theoretical permissible daily
 human exposure from all ingestion
 sources, including water and food. RfDs
 have been calculated for many, but not
 all, of the non-carcinogenic constituents
 for which the Agency is establishing
 exemption levels.
   The Agency prefers to use only RfDs
 that have been  evaluated and verified
 by the RfD Workgroup as the basis for
 setting regulatory levels. However, for
 some compounds, the Agency has not
 yet completed its verification process;
 thus, RfDs under development are being

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               Federal  Register / Vol. 57, No. 98 / Wednesday, May 20,  1992 / Proposed Rules
                                                                      21477
used for the purpose of this proposal for
those compounds. If the final verified
RfDs differ from the RfDs under
development proposed in today's notice,
the Agency will adopt the new [i.e.
verified) values for the final rule after
noticing the data in the Federal Register.
2. Carcinogens
  The Agency proposes to use the oral
Risk Specific Doses (RSDs) as the bases
for: (1) Leachate exemption levels for
carcinogenic constituents for which
MCLs have not been promulgated or
proposed, and (2) soil exemption  levels
for carcinogenic constituents (MCLs do
not apply to soils/solids). The method
for estimating the RSD for carcinogenic
end-points was  described in the
proposed rule for the Toxicity
Characteristic (see 51 FR 21648, June 13,
1986).
  In summary, the RSD is an upper-
bound estimate of the  average daily
dose of a carcinogenic constituent which
corresponds to a specified excess cancer
risk for lifetime exposure. The upper
limit of the dose can be calculated from
the slope of a "dose-response" curve.
The dose-response curve is determined
by a model that extrapolates from
human epidemiological and/or animal
bioassay data to a dose range where
there are no experimental  data. The
upper limit of the dose calculated from
the slope gives rise to  a given risk level.
The RSD corresponds  to this limit when
a level of risk is specified.
  EPA's Carcinogen Assessment  Group
(GAG) and CRAVE Workgroup have
estimated the carcinogenic potency [i.e.,
the slope of the "dose-response"  curve)
for humans exposed to low dose  levels
of carcinogens in the environment.
These slope factors indicate the upper-
bound confidence limit estimate of
excess cancer risk for individuals
experiencing a given exposure over a 70-
year lifetime. In practice, a given  dose
multiplied by the slope factor gives an
upper estimate of the lifetime risk to an
individual of developing cancer. By
specifying a level of lifetime risk  (no
matter how small), one can also
estimate the corresponding dose  using
the slope factor.
  To arrive at an RSD for a carcinogen,
a risk level must be specified. EPA
proposes to specify the risk level  of
concern on a weight-of-evidence  basis,
as described below. EPA promulgated
Guidelines for Carcinogen Risk
Assessment on  September 24,1986 (51
FR 33992), which defined  a scheme to
characterize substances based on
experimental data and the kinds  of
responses induced by  a suspect
carcinogen. These guidelines specify the
following five classifications:
Group A—Human carcinogen (sufficient
  evidence from epidemiologic studies)
Group B—Probable human carcinogen
Group Bi—Limited evidence of
  carcinogenicity in humans
Group 82—A combination of sufficient
  evidence in animals and inadequate or no
  evidence in humans
Group C—Possible human carcinogen
  (limited evidence of carcinogenicity in the
  absence of human data)
Group D—Not classifiable as to human
  carcinogenicity (inadequate human and
  animal evidence of carcinogenicity or no
  data available)
Group E—Evidence of non-carcinogenicity for
  humans (no evidence of carcinogenicity in
  at least two adequate animal tests in
  different species or in both adequate
  epidemiologic and animal studies).
  The CRAVE Workgroup regards
agents classified in Group A or B as
suitable for quantitative risk
assessment. The suitability of Group C
agents for quantitative risk assessment
requires a case-by-case review because
some Group C agents do not have a data
base of sufficient quality and quantity to
perform a quantitative carcinogenicity
risk assessment. The weight-of-evidence
basis was used to eliminate Group D
and E constituents from further
consideration as carcinogens.
  Under each of the regulatory options
presented in today's proposal, the
Agency is using the same risk level for
Group  A, B, and C carcinogens. This
approach is consistent with the way
carcinogens are treated in the Toxicity
Characteristic rule and the delisting
program. For those options where the
Agency is planning to use a low
multiplier of the health-based number
[i.e., 1 or 10), a risk level of 10~6was
selected on the basis for the exemption
criteria. Under these options, the
exemption criteria levels may be
protective from any likely exposures.
The use of the 10"6 risk level is
consistent with other RCRA programs
where  the goal is to be fully protective
[i.e., clean closure).
  For options where a multiplier of 100
is used, the Agency's intent is to make
the exemption criteria consistent with
the Toxicity Characteristic regulatory
levels. (It is important to note that, even
though the approach may be consistent
with the TC, some of the specific
exemption criteria will be different from
the TC regulatory levels because the
Agency has revised several health-
based numbers since the TC was
promulgated.) Therefore, the Agency
proposes to use a risk level of 10~5 to
establish exemption criteria under those
options. While the Agency recognizes
that there may be some potential risk if
wastes exempted under these options
are mismanaged, the CBEC contingent
management option may minimize the
likelihood of complete mismanagement
due to minimum design requirements.

B. Exemption Scenarios
  In developing the different proposed
regulatory options, the Agency has
derived exemption criteria based on two
scenarios which could potentially lead
to high exposures. The first exposure
scenario assumed by the Agency is one
of groundwater contamination, where
waste is placed in unlined landfill and
the leachate from the waste then
contaminates the groundwater and
reaches nearby drinking water wells. To
assess the exposure potential from the
leachate scenario, the Agency applies
the Toxicity Characteristic Leaching
Procedure (TCLP) to the waste and
measures the concentration of
hazardous constituents in the test
leachate.
  However, there are certain types of
wastes [i.e., contaminated soils) which
may not always be disposed of in
landfills. Under many circumstances,
these soils could either be left in place
or treated and then put back where they
were removed. Therefore, the Agency
developed an additional set of
exemption criteria for soils based on an
exposure scenario whereby there is
direct contact with the soil in a potential
future residential setting. To assess the
exposure potential from this scenario,
the Agency measures the total
concentration of hazardous constituents
directly in the soil.

C. Exposure Assumptions
  The Agency has  evaluated three sets
of exposure assumptions for the
contaminated groundwater scenario and
one set of exposure assumptions for the
in-place waste scenario.
1. Contaminated Groundwater Scenario
  In deriving criteria for hazardous
constituents in waste leachates, the
Agency needs to consider (1)  the
expected chemical fate of each
individual hazardous constituent in the
landfill and the subsurface environment;
(2) the amount of dilution and
attenuation that reduces the
concentration of the constituents in the
leachate or the groundwater as they
migrate to a drinking water well; (3) if
the groundwater is contaminated, the
amount that is consumed; and (4) the
health effect of that consumption.
  To simulate the potential leaching of a
waste in a landfill, the Agency uses the
Toxicity Characteristic Leaching
Procedure (TCLP) test described in
detail in the Toxicity Characteristic rule.
As an alternative for wastes which will

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Federal Register / Vol. 57, No.  98 / Wednesday, May 20, 1992 / Proposed Rules
never be disposed with municipal
wastes, the Agency is soliciting
comment on the Synthetic Precipitation
Leaching Procedure, which is discussed
in greater detail in section IX.
  Once the toxicants leave the landfill
in the leachate, they will flow  through
unsaturated zone of the soil to the
saturated zone. To simulate this process
as well as the contaminant movement in
the saturated zone, the Agency used the
EPACML groundwater fate and
transport model which was developed
and employed  in the Toxicity
Characteristic  regulation. This model
has the capability to model some
subsurface  chemical processes like
hydrolysis,  biodegradation, and metal
speciation.
  In the TC rulemaking, however, the
Agency found  that it did not have
enough data to incorporate these factors
into the rulemaking, although hydrolysis
rates were  evaluated and compounds
which hydrolyzed rapidly were not
included in the rule. At that time, the
Agency pledged to reconsider  these
chemical processes once more data
became available.
  In hydrolysis, certain classes of
organic constituents transform into
other constituents in the presence of
water. In developing the TC rule, the
Agency found  that the DAF of 100 was
not appropriate for some constituents
because they hydrolyzed rapidly and the
Agency had little information  on the
products formed during the hydrolysis
process. Through its own research and
from published data, the Agency has
identified hydrolysis rates for  some of
the constituents listed in Appendix
[x+1] of today's rule. These rates are
found in the docket to today's rule.
Should the  Agency choose to develop
constituent specific DAFs, the Agency
proposes that  it would use these
reported values in combination with
appropriate data on hydrolysis products
in the EPACML model to determine
these DAFs. The Agency requests
comment on the accuracy of this data
and its appropriateness for regulatory
purposes.
  For those Appendix VIII constituents
for which the Agency does not have
hydrolysis  data, the Agency would
welcome any data known to
commenters. Under the Toxic Substance
Control Act, the Agency has published a
protocol for determining hydrolysis
rates (see 40 CFR 796.3500; 53 FR 23081).
Commenters are urged to provide
hydrolysis  data consistent with the
procedures outlined in this protocol. If
the Agency finds that this data meets
the standards  of this protocol, EPA
would propose, after notice and
opportunity for comment, to use this
                        data in combination with appropriate
                        data on hydrolysis products for
                        developing constituent-specific DAFs.
                          As indicated above, the Agency is
                        concerned about transformation
                        products of hydrolysis. After a
                        hazardous constituent is hydrolyzed, the
                        resulting transformation chemical may
                        be just as hazardous as the original
                        contaminant. Before applying a
                        hydrolysis rate to determine the
                        appropriate DAF for a constituent, the
                        Agency requires data on the hydrolysis
                        products, including their toxicity
                        hydrolysis rates. Therefore, the Agency
                        is requesting such information along
                        with recommendations on how to utilize
                        the information in developing DAFs.
                        EPA has developed an approach to
                        modeling hydrolysis reactions and
                        products, which is described in the
                        docket for today's rulemaking.
                          In biodegradation, microbes digest
                        certain organic chemicals as  a source of
                        nutrients. Biodegradation of organic
                        wastes in the soil is the principal
                        physical mechanism for septic tanks and
                        other common waste disposal methods.
                        Recent research has demonstrated that
                        many hazardous organic chemicals can
                        naturally biodegrade in the soil under
                        certain conditions. The Agency has in
                        today's docket some research articles
                        which summarize observed
                        biodegradation rates in field  and
                        laboratory work.
                          The EPACML model includes an input
                        parameter for a chemical-specific first-
                        order biodegradation rate. Therefore,
                        the Agency believes that biodegradation
                        should be included in  an assessment of
                        potential exposure to groundwater
                        contamination if appropriate
                        information  on biodegradation products
                        (i.e., their toxicity and fate and transport
                        proprieties)  is available.
                          However,  the Agency has previously
                        been concerned that biodegradation
                        rates vary from site to site and that
                        laboratory results sometimes have not
                        been verified by actual observed
                        biodegradation rates in the field.
                        Subsurface conditions are often
                        anaerobic, and laboratory test are
                        generally done under aerobic conditions.
                        In fact, the absence of verified results
                        prevented the Agency from including
                        assumptions of biodegradation in the
                        final TC rule. In an effort to obtain
                        accurate, verifiable biodegradation rates
                        under a variety of conditions, the
                        Agency published a protocol under
                        TSCA (53 FR 22320; 40 CFR 795.54) to
                        obtain anaerobic biodegradation rates
                        suitable for  regulatory purposes. It is the
                        Agency intent, after public notice and
                        opportunity for comment, to evaluate
                        and use any data submitted by
                        petitioners which EPA finds to conform
to this protocol, along with appropriate
data on biodegradation products, as part
of the EPACML simulation to determine
constituent specific DAFs.
  The Agency recognizes that the
maximum length of time required to
carry out this protocol—64 weeks—is
longer than the promulgation date for
the final rule, April 28,1993. However,
EPA will continue to accept
biodegradation data as it becomes
available and promptly place such data
in the public record. As scientific
understanding of biodegradation and
other soil chemical reactions grows, the
Agency will reevaluate its risk
assessment (including the DAFs) as
appropriate.
  Another important  chemical reaction
in soil is the adsorption of constituents
by soil particles. Both metals and
organic constituents can adsorb and de-
adsorb on to the negative ions which
dominate the surfaces of most soil
particles. If the constituents stay bonded
to the soil and do not de-absorb, they
can not migrate (or migrate very slowly)
to the groundwater and to a potential
point of exposure. As discussed below,
the critical issue in utilizing adsorption
factors is defining the total extent of
potential contaminant release.
  Organic adsorption is primarily
influenced by six factors: molecular size,
hydrophobicity, molecular charge,
organic molecular fragments that
undergo hydrogen bonding, the three
dimensional arrangement of the organic
fragments, and molecular fragments of
the chemical which undergo
coordination bonding. These six factors
are discussed in today's docket. The
principal measure of organic adsorption
is a relationship between the first-order
adsorption factor and the octanol/water
partition coefficient. EPA has
determined these partition coefficients
for many of the appendix VIII
constituents. These coefficients are
discussed in today's docket. The
EPACML model has an input parameter
for this coefficient and the Agency will
evaluate and use these values, if
appropriate, to predict constituent-
specific DAFs.
  Inorganic constituents can undergo a
complex series of speciation reactions
(including complexation, precipitation,
and  adsorption) between metallic ions
in the leachate and the soil particles. At
the time of the TC rule, the Agency
determined that it did not have the
analytic data and methods to  estimate
cation exchange. In response to
comments, the Agency announced that it
was in the process of creating a model,
MINTEQA2, to model more accurately
geochemical speciation. The Agency has

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               Federal Register  /  Vol. 57,  No. 98 /  Wednesday, May  20, 1992 / Proposed Rules	21479
recently completed a version of
MINTEQA2, which is discussed in
today's docket for comment. As the
Agency develops constituent-specific
DAFs, the Agency will use this model to
develop adsorption rates for all
appropriate appendix VIII constituents.
The Agency requests comments on
appropriate input model parameters.
  The Agency requests comments on
other chemical reactions which
commenters believe may be important
for cling potential  contaminant fate in
the subsurface environment.
  For contaminant transport, past
regulatory applications of the EPACML
model have developed dilution/
attenuation factors only under steady-
state conditions. In the analyses for the
TC rule, as described in the preamble
and background documents (55 FR
11798, March 29,1990) the Agency found
that  the assumption of steady state
conditions was not appropriate in
developing DAFs for some of the
proposed constituents. In this proposal,
the Agency is now considering DAFs for
over 200 constituents and is
investigating explicitly contaminant
flow assuming transient flow. The
EPACML model can determine DAFs
assuming non steady-state flow and the
Agency proposes to use this model for
this purpose once  the issues concerning
the extent of contaminant release have
been resolved.
  In  order to assume non steady-state
flow, the length of the contaminant pulse
must be determined. In a landfill,
contaminants will leach from the waste
as the precipitation percolates through
the layers of waste. In hazardous waste
which is solid, relatively mobile
contaminants near the surface of the
waste will leach first. Contaminants
deep in the interior of waste or tightly
bonded chemically to the solid will take
much longer to leach out, if ever. Thus,
the expected contaminant concentration
of the leachate over time will resemble a
"pulse"—a build-up of concentration in
short-run followed by a rapid decay to a
lower, almost steady-state
concentration. Therefore, to model a non
steady-state  simulation, the Agency
needs to make appropriate estimates of
the source of contamination. In a
preliminary background analysis for the
TC rule, the Agency assumed that the
full volume of the landfill was filled with
solid waste and the contaminant of
concern at a concentration of 1000 ppm.
The Agency used this approach as a
screening check of its results and is
concerned that this scenario may not be
representative of actual disposal
conditions. The Agency calls for
comments on the appropriate simulation
parameters which will provide adequate
protection of human health and the
environment.
  Related to this issue, the Agency also
calls for comment on whether the length
of time necessary for a contaminant to
reach a receptor well should be of
regulatory concern. For example, if the
Agency determines that under non-
steady-state conditions a certain
constituent will likely only migrate to
the receptor well 100 or 1000 years in the
future, how should the Agency factor
that result in its calculation of an
exemption multiple for that constituent?
The Agency requests comment on this
issue. Specifically, what, if any, limits
should be placed on time periods of
regulatory concern for groundwater
exposure.
  The EPACML model also incorporated
specific dispersitivity constants derived
from the literature. In the TC rule, the
Agency received many comments on
this issue. Since there may be better
scientific understanding and additional
field observations of this phenomena
may have emerged in the time after the
development of that rule, the Agency
again requests comments on EPACML's
dispersivity assumptions. Specifically,
the Agency requests comment on its
assumption of no horizontal dispersivity
in the unsaturated zone. Although the
Agency believes that incorporating
horizontal dispersivity will have little
effect on overall DAFs, the Agency asks
for additional information on this issue.
  Also, for each simulation, the
EPACML chooses randomly from a
distribution of unsaturated zone depths
as it performs a nationwide simulation
for the calculation of DAFs. For these
simulations, EPA used a regression
relation to determine dispersivity values
as a function of the unsaturated zone
depth. However, to avoid excessively
high values of dispersivity for deep
unsaturated zones, a maximum
dispersitivity of 1.0 m was used for
depths greater than 44.5 m. The Agency
requests any data or comment related to
this issue.
  Additional EPACML model limitations
in modeling contaminant transport in
the unsaturated and saturated zones
include the fact that the model does not
simulate the movement of nonaqueous
materials and the assumption that the
subsurface media are homogeneous and
isotropic and without significant
fracturing. The Agency recognizes that
these assumptions may underestimate
and overestimate risk for various actual
conditions. In response to comments to
the TC rule, the Agency found that these
assumptions were necessary for model
development and were appropriate for
regulatory use. The Agency has not
changed its position on this issue and
proposes to use the existing modeling
assumptions in the EPACML model.
However, the Agency once again asks
for comment on these issues and asks
that commenters provide specific
suggestions, recognizing the need for
computational efficiency, on how the
model may be improved to incorporate
anisotropy, heterogenous conditions,
and fractured flow.
  A further concern with the EPACML
model is that it simulates the migration
of contaminants from landfills whereas
many wastes  are managed in surface
impoundments,  which can have higher
leaching rates due to hydraulic pressure.
The Agency has developed a model to
simulate leaching from surface
impoundments and has included it in the
docket for today's rule. The Agency
solicits comment on the use of this
model in  setting exemption criteria.
  Using the EPACML model and other
information, including data from EPA's
1986 Solid Waste Landfill Survey, the
Agency potential exposure and risk to
populations drinking water from wells
near unlined landfills receiving
exempted waste. This analysis is
included in the docket for today's rule.
In assessing risks, the Agency first used
the EPACML model  to estimate the
potential number of people whose
drinking water wells would contain
contamination at levels above the health
based numbers. This estimate was done
for two cases: (1) assuming the
exemption criteria were set at 100 times
the health based numbers and (2)
assuming the exemption criteria were
set at 10 times the health based
numbers. Once the Agency had
estimated the potential number of
people exposed, it then evaluated the
potential risks associated with those
exposures.
  If the exemption criteria are set at 100
times the health based numbers, the
Agency estimates that 10 to 15 percent
of the population using private wells
within one mile downgradient from
Subtitle D landfills receiving exempted
wastes could be exposed to
contamination above the health based
number if the wastes were all
contaminated to the extent allowable
(i.e., if all exempted  wastes leached at
100 times the health-based level).
Approximately 1 to 2 percent of the
population described above could be
exposed to contamination at more than
10 times the health based numbers.
  If unlined Subtitle D landfills with the
same distribution of proximity to
drinking water wells received these
exempted wastes today, approximately

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10,000-15,000 people would be exposed
to levels above health based numbers,
and 1,000-2,000 people would be
exposed to levels more than 10 times the
health based numbers. Since not all
landfills would receive exempted
wastes, proportionally fewer people
would actually be potentially exposed.
More importantly, little of the exempted
wastes would leach at levels of 100
times the health-based numbers, so
exposures would be even lower.
  However,  to conduct this assessment,
the Agency had to make some
assumptions which it recognizes could
overstate the estimate of the exposed
population. For example, EPA assumed
that all landfills in the 1986 Survey were
unlined. However, in its  Regulatory
Impact Analysis for the 1991 final
Subtitle D rule, the Agency found that 18
states (containing over half of all
landfills in the 1986 Survey) required
some form of engineered containment
system—e.g., synthetic liners, leachate
collection systems. Thus, this
assessment would overestimate the
amount of leachate that  could migrate
out of the distribution of landfills. In
addition, since 1986 the Agency has
promulgated subtitle  D criteria which
would make the  exposure scenario and
distribution  in the assessment unlikely
once these requirements are fully
implemented. In addition, this
assessment assumes  that the population
distribution  around industrial and
demolition Subtitle D landfills is
comparable  to the distribution around
municipal Subtitle D  facilities. It is
possible that fewer people reside near
industrial or demolition  facilities as
municipal landfills, since they are often
located in or near residential areas.
  To evaluate potential  risks to the
exposed population, the Agency
considered different assumptions
concerning period of residency near a
landfill and  amount of water consumed.
In developing the health based numbers
(MCLs, RSDs, and RfDs), the Agency
uses the conservative consumption
factors of 2 liters/day of water from the
same source for a lifetime of 70 years.
More average exposure  assumptions are
a consumption rate of 1.4 liters/day and
a residency  period of nine years.
  The effect of applying more average
exposure assumptions differs depending
on whether  or not the constituent of
concern is a carcinogenic. For
carcinogens, the risk to the individual is
reduced in proportion to the decreases
in consumption rate and residency time,
or by about  one order of magnitude.
Thus if average exposure factors are
used, and the exemption criteria are set
at 100 times the  RSD based on a risk of
                        10 5, then the estimated individual risks
                        for the 10-20 percent of the population
                        exposed at levels above the health
                        based numbers would be 10~s or greater,
                        rather than 10"5 or greater.
                          However, over a 70 year period there
                        would be more people residing at the
                        contaminated site (assuming the
                        residence is continually occupied) so
                        that more people would be exposed,
                        although at lower individual risks.
                        Therefore, the overall population risk
                        (i.e., number of expected cancer cases in
                        the population) would decrease only by
                        30%, the amount of the reduction in the
                        consumption rate.
                          For noncarcinogens, the risk may or
                        may not be reduced depending on
                        whether the adverse effect will occur
                        over an exposure period of less than a
                        lifetime and the extent to which the 30%
                        decrease in the water consumption rate
                        would in some cases reduce exposure to
                        levels below the RfD. For many of these
                        toxicants,  exposure to levels above the
                        RfD for a period of nine years would be
                        of significant concern, particularly if the
                        effects are ones such as reproductive
                        toxicity or developmental toxicity.
                          Finally,  it is important to keep in mind
                        that the MCLs are not based solely on
                        risk factors; other factors such as readily
                        achievable analytical detection limits
                        and economic feasibility of treatment
                        are also considered. Thus for a number
                        of constituents with MCLs, exposure at
                        the MCL exceeds exposure levels which
                        would be calculated based strictly on
                        RfDs and RSDs.
                          If the exemption criteria are set at 10
                        times the health based numbers, the
                        Agency estimates that 1 to 2 percent of
                        the population using private wells
                        within one mile downgradient from
                        landfills receiving exempted wastes
                        could be exposed to contamination
                        above the health based numbers. For all
                        Subtitle D landfills, this population is
                        estimated to be 1,000-2,000, although
                        again not all of these landfills would be
                        receiving exempted wastes.
                          The Agency also evaluated the
                        scenario where the exemption criteria
                        were set equal to the health based
                        numbers. This scenario assures that
                        nobody would be exposed to drinking
                        water concentrations above these levels
                        of concern, since no dilution/attenuation
                        is assumed. To evaluate whether this
                        assumptions was completely unrealistic,
                        the Agency collected data from a
                        number of contaminated sites which
                        indicate that, at least in a few worst-
                        case situations, the groundwater
                        concentrations of contaminants
                        hundreds  of feet from the source had
                        decreased very little from the
                        concentrations at the source. One
interpretation of these data (which are
presented in the docket for today's
rulemaking) is that very low DAFs may
occur. The Agency requests comment on
these observations and whether the
likely conclusion from these results is
that very little dilution and attenuation
has occurred.

2. Scenarios for Wastes Not Placed in
Controlled Units
  In developing the additional
exemption criteria for soils and wastes
not subject to landfill controls, on which
EPA is seeking comment, the Agency
evaluated a scenario in which there
would at some time be residents at the
site who would be exposed directly to
the waste contaminants. The primary
exposure would be through incidental
ingestion (particularly by children).
Children are particularly at risk from
soil ingestion because of their higher soil
ingestion rates and much lower body
weights. For this analysis, a soil
ingestion rate of 0.2 grams/day and a
body weight of 16 Kg were used for
children. The Agency also assumed that
100 percent of the ingested contaminant
was absorbed. Adult exposure through
residential  soil ingestion was assumed
to be low relative to childhood
exposure, although the Agency solicits
comments on whether and how adult
residential  exposure should be included.
  In assessing the risks from this
scenario, the Agency used different
approaches for assessing risks from
carcinogens and systemic toxicants. For
carcinogens, the childhood exposure
was averaged out over the 70 years
lifetime to determine the risk of
developing cancer over a lifetime.
However, for non-carcinogens the
childhood exposure was not  averaged
out over a lifetime in order to ensure
that the child would not be exposed to
levels well above the RfD threshold
levels for a five year childhood exposure
period.
  Additional details on all of the
specific parameters and equations used
in these evaluations are provided by the
background document in the docket for
today's rule.
  In today's notice, the Agency is
proposing and asking for comment on
exemption  levels for hazardous
constituents in soils and surface wastes
on the basis of direct ingestion by
children.
  The Agency recognizes that there are
additional exposure routes which are
potentially of concern and solicits
comments on whether and how other
exposures could be evaluated to
establish exemption criteria. The other
potential human exposure routes of

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               Federal Register  /  Vol. 57, No.  98 / Wednesday, May 20, 1992  / Proposed  Rules
                                                                        21481
concern include dermal absorption,
inhalation of participates and volatile
compounds, runoff to surface waters,
adult soil ingestion, and uptake of
contaminates by food crops and grazing
animals used for food and daily
products. In addition, the Agency
solicits comments on whether additivity
or contaminatant contributions from
other sources should be considered.
These issues are also discussed in
section IX,  "Additional Exemption
Criteria Under Consideration."
  One reason for concern over other
exposure routes is that, despite the
conservative nature of the direct
exposure assumptions,  there are a
number of constituents that do not
appear to pose a significant threat via
ingestion. As illustrated in the
background document supporting the
derivation of the exemption levels, these
exposure pathways can predict
"acceptable" soil levels that are quite
high. To ensure that the exemption
levels would be protective of other
exposure routes, the Agency
has proposed, and seeks comment on,
capping the surface waste exemption
levels at 1,000 ppm. This cap is an
alternative to levels which would
otherwise be very high. The soil cap has
been proposed for the following
constituents:
Acenaphthene        Ethyl ether
Acetone             Ethyl methacrylate
Acetophenone        Fluoranthene
Acrolein             Fluorene
Barium              Formic acid
Benzyl alcohol        Isobutyl alcohol
Butanol              Methanol
Butyl benzyl phthalate   Methyl ethyl ketone
Carbon disulfide       Methyl isobutyl ketone
Chlorobenzene        Methyl methacrylate
Chlorobenzilate       Naphthalene
2-Chloro-1.3-butadiene   Nickel
Cresols              Phenol
Cumene             Phthalic anhydride
Cyanide             Pronamide
1.2-Dichlorobenzene     Pyrene
Dichlorodifluoromethane Styrene
1,1-Dichloroethane      2,3,4.6-Tetrachlorophenol
trans-l,2-Dichloroethene  Toluene
Di-n-butyl phthalate     2,6-Toluenediamme
Diethyl phthalate       1,1,1-Trichloroethane
Dimethyl phthalate     Trichlorofluoromethane
2,4-Dimethyl phenol     2,4,5-Tnchlorophenol
Di-n-octyl phthalate     l,l,2-Tnchloro-1.2,2-
Diphenylamme          tnflourethane
2-Ethoxyethanol       Xylene
Ethyl acetate          Zinc
Ethylbenzene

  Therefore, although the Agency
believes that not very many soils with
high concentrations of any constituent
would pass both the surface waste and
leachate exemption levels, EPA is
proposing to cap the soil levels to ensure
that these wastes are not excluded
inappropriately where hazards from the
constituent may result from factors not
reflected in the exposure scenarios. As
previously  discussed, there may be
additional potential exposure pathways
of concern for humans. In addition, there
may be sensitive environmental
endpoints that would be adversely
impacted by exposure to these
constituents at 1,000 ppm or higher. This
issue is discussed in greater detail in
Section IX, "Additional Exemption
Criteria Under Consideration."
  The Agency is also proposing that the
Regional Administrator and/or
authorized State authority retain an
override authority to deny exemptions
to facilities where such potential threats
may exist. The Agency requests
comments on this approach and,
specifically, data demonstrating whether
soils containing these types of
constituents are likely to pass both the
soil and leachate criteria.
  It is important to note that 1000 ppm
cap may be necessary for this rule
because the rule is a generic,  self-
implementing set of standards, with no
inherent mechanism for dealing with
different potential exposure routes. This
situation is in contrast to situations
where  site-specific and chemical-
specific cleanups are being done under
RCRA  Corrective Action and CERCLA
authority. In these cases, other exposure
routes  are considered where
appropriate, and there is no need to
apply a generic cap in establishing
action  levels or cleanup standards.
Therefore, EPA proposes that the
regulatory authority may modify the
"cap" on a site-specific basis.
  High temperature metals recovery
(HTMR) residues are used as road base
materials or as anti-skid materials. The
Agency excluded from subtitle C HTMR
residues provided that these slag
residues meet designated concentration
levels,  are disposed in subtitle D units,
and exhibit no characteristics of
hazardous wastes (see 56 FR  41164);
however, the Agency did not  make a
final decision as to whether residues
used as road base or anti-skid materials
should be excluded.  The Agency
decided that its regulatory tools for
evaluating road base materials [i.e.,
methods to evaluate exposure) were too
uncertain to make a  final decision.
Comments submitted to the Agency
maintain that the use of the EPACML
model, which estimates potential risk to
groundwater, is overly conservative for
materials that are applied to the land as
road base [i.e., they are not co-disposed
with municipal solid wastes in an
unlined landfill, and are generally
covered with concrete or asphalt that
should reduce infiltration) and that
application to the land as road base is
actually more environmentally
protective and beneficial manner than
disposal in a subtitle D landfill (see
comments submitted by Beveridge and
Diamond, P.C. on behalf of the
American Iron and Steel Institute, April
6,1992). The Agency requests comment
on the appropriateness of the EPACML
model in evaluating risks from HTMR
materials used as road base, the
appropriateness of the Synthetic
Precipitant Leaching Procedure  (method
1312), and suggestions on whether (and
how) to evaluate pathways other than
ground water contamination.

VII. Analysis and Limits of Detection

  To qualify for an exemption as
proposed today, a facility bears the full
burden of demonstrating that: (1) All
analytical data used for the exemption
demonstration are of known precision
and accuracy, and (2) all analytical data
are generated using analysis techniques
that  are sufficiently sensitive to prove
that  the concentrations of the
constituents of concern are not present
at the selected regulatory levels. These
proposed requirements mandate the use
of standardized analytical methods (or
their equivalents), comprehensive
quality control procedures, and, for
those constituents of concern whose
health-based exemption levels are
significantly lower than readily
achievable analytical quantitation
limits, the achievement of specified
quantitation limits.

A. Standardized Analytical Methods

1. SW-846 Methods and Quality
Assurance

  EPA is identifying specific analytical
methods that are applicable for each of
the exemption constituents, taken from
"Test Methods for Evaluating Solid
Wastes: Physical/Chemical Methods",
U.S.  EPA, Office of Solid Waste and
Emergency Response, Publication SW-
846 (third edition), November 1986 (SW-
846)  and subsequent updates. This
compendium of analytical and test
methods contains the Agency's
standardized RCRA analytical methods.
The recommended methods are listed in
Appendices [x+1] and [x+2].
  SW-846 methods are written to allow
the analyst latitude within the analysis
scheme to address diverse matrices. The
Agency recognizes that achievement of
the prescribed quantitation limits may
require some modifications to the
identified analytical method, such as
additional sample cleanup steps or use
of alternate gas chromatographic
column or detector systems, for the
analyses of certain waste matrices. EPA
proposes that such modifications be
within the framework of the applicable

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21482
Federal Register  /  Vol. 57, No.  98 / Wednesday, May 20, 1992 / Proposed Rules
SW-846 method, as specified in Chapter
Two of the manual and that they be
documented.
  The proposed SW-846 analytical
methods contain general performance
data (i.e., precision, accuracy, and
sensitivity) to determine how they can
be expected to perform in a variety of
matrices. Chapter 1 of SW-846 contains
QA/QC recommendations which apply
to all sampling and analysis procedures.
The Agency believes that analyses
performed in support of exemption
demonstrations should have an
appropriate level of the quality control
like those methods recommended in
SW-846 unless alternative equivalent
methods are used (see discussion on
Alternative Methods). While the Agency
is not proposing that the quality control
procedures in Chapter One be
specifically required, it does solicit
comment on such an approach.
2. Alternative Methods
   The Agency recognizes that analytical
methods have been developed which are
similar in scope to many of the SW-846
analysis methods (e.g., EPA's Methods
for Organic Analysis of Municipal and
Industrial Wastewater). Therefore, EPA
is proposing that facilities may use other
methods as long as the facility
demonstrates that the methodology used
was sensitive enough to have detected
the analytes of concern at the levels
specified in the regulation.
B. Need for Quantitation Limits
   The Agency is proposing quantitation
limits that represent the lowest levels
that can be reliably measured within
acceptable limits of precision and
accuracy during routine laboratory
operating conditions using the specified
methods. These levels are referred to as
 "exemption quantitation criteria" or
EQCs and are presented in Appendices
 [x + 1] and [x + 2]. The Agency believes
 that it is necessary to specify EQCs
 because a number of the constituents on
 the exemption list have health-based
 exemption levels which are not
 analytically quantitatable in all
 matrices. By establishing EQCs as
 benchmarks or maximum allowable
 quantitation limits (that is, facilities
 must achieve actual quantitation limits
 that are no higher than the specified
 EQCs), the Agency is ensuring that all
 exemption demonstrations will achieve
 equivalent degrees of quantitation and
 that wastes with high levels of
 contamination that tend to confound
 analytical protocols are not exempted.
    A comparison of the risk-based
 exemption levels with the
 concentrations measurable using
 currently available methods reveals a
                         number of cases where quantitative
                         measurement of analyte concentration
                         at the risk-based level cannot be
                         achieved reliably, using standardized
                         analytical methods, particularly for the
                         option based on a DAF = 1. EPA is
                         proposing that for all constituents whose
                         exemption quantitation limits exceed
                         their health-based exemption levels,
                         facilities must achieve the specified
                         quantitation limits.
                           For example, the health-based
                         exemption level (DAF = 1) for aldrin in
                         leachate and wastewaters is 0.002 ug/1.
                         The specified EQC for aldrin in leachate
                         and wastewaters is 0.04 ug/1. Exemption
                         demonstrations must show that aldrin
                         cannot be quantitated in the wastewater
                         or leachate above 0.002 ug/1, with a
                         quantitation limit at least as low as 0.04
                         ug/1. The Agency will assume that the
                         exemption level for aldrin has been met
                         if the method has been demonstrated to
                         achieve the EQC of 0.04 ug/1 and no
                         aldrin is found in the material. However,
                         if aldrin is quantitated at a level above
                         0.002 ug/1, the exemption criterion has
                         not been met, even  if the quantitated
                         level is below 0.04 ug/1.
                           The Agency recognizes that by relying
                         on EQCs for constituents with health-
                         based exemption levels that are
                         significantly lower  than analytically
                         quantitatable levels, wastes and media
                         that contain toxic constituents at
                         concentrations above their exemption
                         levels could be exempted. The Agency
                         believes it is appropriate to propose
                         exemptions notwithstanding this  issue
                         for a number of reasons. For example,
                         when evaluating wastes to determine
                         whether they should be listed as
                         hazardous, the Agency considers
                         whether the levels  of constituents of
                         concern are hazardous, rather than
                         whether constituents which cannot be
                         quantitated may be present at levels
                         above their health-based levels.
                           The Agency requests comments on
                         this approach to this issue. While the
                         Agency  believes that this is a
                         reasonable approach, it recognizes that
                         the issue of non-quantitatable health-
                         based exemption levels  for some
                         constituents may be of concern. Table 6
                         lists the exemption list constituents
                         whose EQCs exceed their health-based
                         exemption levels (based on a DAF of 1)
                         by more than one order of magnitude
                         (analysts should generally be able to
                         achieve EQCs which are within one
                         order of magnitude of the exemption
                         level by fine-tuning the method).  As
                         noted in this table, not all of these
                          constituents are expected to be
                          prevalent in wastes (based on the
                          prevalence analysis discussed in Section
                          VI.C).
TABLE 6.—CONSTITUENTS WITH EXEMP-
  TION QUANTITATION CRITERIA  WHICH
  EXCEED THEIR  HEALTH-BASED EXEMP-
  TION LEVELS (BASED ON A MULTIPLIER
  OF  1) BY MORE THAN  ONE ORDER OF
  MAGNITUDE

Acrylamide.
Acrylonitnle.
Aldrin.
Aramite
Benzidme.
Benzotrichlonde
Bis(2-Chloroethyl)ether.
Bis(2-chloroisopropyl)ether*
Bromodichloromethane
Chlorodibromotnethane.
Diallate"
Dibenz (a,h) antracene
3,3'-Dichlorobenzidme.
1,3-Dichloropropene
Diethylstilbestrol*.
3,3'-Dimethoxybenzidme
7,12-Dimethylbenz(a)anthracene.
3,3'-Dimethylbenzidme*.
2,4-Dinitrotoluene.
2,6-Dmitrotoluene
1,4-Dioxane.
2378 PeCDDioxms
Epichlorohydnn
1,2-Diphenylhydrazme.
Epichlorohydrm.
Ethyl methanesulfonate*
Famphur*.
23478 PeCDFuran.
Hexachloro-1,3-butadiene
Kepone*.
3-Methylcholanthrene *.
2-Naphthylamme*.
2-Nitropropane.
N-Nitroso-di-n-butylamme*.
N-Nitrosodiethylamme*.
N-Nitrosodimethylamme*.
N-Nitrosodi-n-propylamme
N-Nitrosomethylethylamme*.
N-Nitrosopipendine*
N-Nitrosopyrrohdine*
Pentachloronitrobenzene".
Pentachlorophenol.
Phenylene diamine
Safrole*
o-Tolutdme*
2,4-Toluenediamme
p-Toluidme*
Tns(2,3-dibromopropyl) phosphate*

  * Not known to be prevalent in wastes
   The Agency requests comments on the
 other options presented below for
 quantitation of constituents whose
 EQCs exceed the health-based
 exemption levels:5
 the Appendix VII constituents for which
 their waste was listed.
   • Facilities would be required to
 achieve quantitation limits as low as the
 health-based exemption levels for all of
 exemption constituents. This approach
 could be very costly and difficult to
 achieve and impose an unnecessary
 regulatory barrier for generator of
 wastes which contain only a few
 constituents.

   5 As a point of clarification, note that facilities
 are responsible for all constituents and that these
 options only focus on the subset of exemption list
 constituents whose QLs exceed their health-based
 exemption levels.

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               Federal Register  /  Vol. 57, No. 98  /  Wednesday, May 20, 1992 / Proposed Rules
                                                                     21483
  The Agency is also soliciting
comments on whether facilities should
be allowed to demonstrate through mass
balances that a  constituent could not be
present at levels above its health-based
levels. In addition, the Agency requests
comments on whether an exemption
demonstration should be considered
adequate if all proper method and QC
procedures are followed and the
constituents are not detected, even
though the EQC level has not been met.
This situation could arise even in
relatively clean matrices if the
constituents bind strongly to the matrix
or if the constituents  degrade rapidly
during the analysis. However, the
Agency would not want the exemption
to be allowed if the EQC could not be
achieved because of interference from
other contaminants in the matrix. The
Agency requests comment on the use of
mass balances in situations where such
low concentrations may render the
analysis meaningless.

C. Development of Exemption
Quantitation Criteria (EQC)
  The Agency's preferred way to
determine reliable quantitation levels is
through interlaboratory studies such as
method performance  evaluations.
However, if data are  unavailable from
interlaboratory  studies, quantitation
limits are estimated based on the
method detection limits and an
estimated multiplier to account for
laboratory variability and matrix
effects.
  To develop the EQCs proposed in
today's notice, EPA compiled a master
list of the quantitation limits published
for the identified constituents in the
third edition of  SW-846, including the
first update and the soon to be proposed
second update (both  of which are widely
distributed throughout the regulated
community). The Agency believes that
the resultant list of EQCs  associated
with the methods specified in
Appendices [x + 1] and [x + 2] presents
achievable quantitation limits for the
proposed exemption  constituents.
  The Agency believes that these EQCs
achieve the most effective assessment  of
any adverse impact on human health
and the environment that can be
incorporated into a generic-type
standard such as today's proposed rule.
These quantitation limits are
appropriate because  the effect of an
exemption would be  to remove wastes
and media from Subtitle C control. The
Agency requests comments on the
proposed quantitation limits as well as
any data supporting those comments.
Supporting documents are available in
the docket for examination. The
proposed methods and EQCs for each
constituent are presented in Appendices
[x + 1] and [x + 2] of the proposed rule.
VIII. Synthetic Precipitation Leaching
Procedure
  To determine whether a waste
qualifies for an exemption, the Agency
is proposing that the TCLP test must be
applied to the waste to evaluate its
leaching potential. However, the Agency
recognizes that the TCLP, which was
developed to simulate the leaching
potential of wastes codisposed with
municipal solid wastes in a municipal
landfill, may not always be appropriate
for evaluating actual risks from other
scenarios such as surface wastes or
media or single waste monofills.
  Therefore, the Agency is soliciting
comment on the use of the  synthetic
precipitation leaching procedure
(Method 1312) to measure the mobility
of contaminants from wastes and media
under the described management
scenarios. Method 1312 is expected to
be proposed for inclusion in the second
update to the Third Edition of SW-846 in
1992. This method simulates the leaching
process created by acidified
precipitation. The Agency has included
this method in its guidance for the
evaluation of clean closures. The
Agency believes that this leaching
procedure may be an appropriate
measure of contaminant mobility for
certain wastes and media and, therefore
is considering the use of this test in
exemption  demonstrations for certain
wastes.
  In Method 1312, which is fully
described in the docket supporting this
proposal, the waste is mixed with a
mildly acidic aqueous leaching medium
containing  inorganic acid rather than the
buffered acetic acid solution used in the
TCLP. Beyond that, the procedure is
essentially identical to the TCLP.
  The Agency has completed precision
and ruggedness studies on Method 1312.
The studies indicate that Method 1312
produces a reasonably precise
measurement of the mobilization of
organic compounds and certain metals
from soil. The method is also fairly
rugged, showing little variation with any
of the critical parameters that were
tested [e.g., extraction fluid pH,
extraction time, liquid/solid ratio)
(EMSL, 1989). Based on this study, the
Agency believes that Method 1312 may
be appropriate for evaluating leaching of
certain wastes.
  Specific waste types where Method
1312 may be appropriate include soils,
waste going on-site or regulated off-site
monofills, wastes going to  any industrial
landfills which do not receive municipal
wastes or other wastes which may
generate organic acids. The Agency
solicits comments on the technical
merits and the implementation issues
which could affect these disposal
scenarios.

IX. Additional Exemption Criteria Under
Consideration

  The Agency believes that the options
presented for exemption criteria
described earlier in today's notice [e.g.,
the exemption levels and testing
requirements) are generally
conservative and will serve as
reasonable criteria for self-implementing
hazard determinations. However, the
Agency recognizes that the exemption
levels are based solely on human health
effects levels and primarily on risks of
groundwater contamination. This
Section outlines approaches to defining
other exemption criteria which the
Agency may consider as potential
requirements for exemption
demonstrations. If these criteria are not
adopted as part of any rule finalizing
this notice, EPA requests comment on
the need for an  omnibus authority that
the Regional Administrator or
authorized State official may use as an
additional regulatory authority to
require the application of these criteria
or submission of additional information
on a case-by-case basis if extraordinary
site-specific considerations warrant
evaluation of other factors. The Agency
envisions such an authority to be rarely
necessary.
  The Agency seeks comment on the
incorporation of a bioassay
demonstration as a potential exemption
requirement. If adopted, facilities would
be required to demonstrate that their
waste or contaminated media, as a
whole, is not expected to have a
detrimental impact on the environment
through application  of a bioassay
procedure.  Many types of bioassays
exist, including those that measure
toxicant effects on the growth and
reproduction, acute  lethality,
mutagenicity, carcinogenicity, and
teratogenicity to small mammals, fish,
and invertebrates. The Agency believes
that it may be appropriate to include a
bioassay requirement because the
exemption  levels are geared toward
human health effects. However, EPA
acknowledges that bioassays may be
very expensive to conduct, the results
may be biased towards the test species
used, and toxic manifestations may be
difficult to extrapolate to mammals. EPA
is not sure what assumptions would be
appropriate when using laboratory
results to predict field effects regarding
fate and transport to receptor
environments.

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Federal  Register / Vol. 57, No. 98 / Wednesday,  May 20, 1992  /  Proposed Rules
  While the lowest exemption level
(option 3, DAF of 1) are lower than or
approximately equal to 60 percent of the
Ambient Water Quality Criteria (see
following discussion), the Agency
believes that this approach would
address additional concerns about
whole waste (or leachate) effects  on
environmental receptors. The Agency
compared the lowest exemption levels
to the Ambient Water Quality Criteria
(AWQC) (Gold Book, EPA 440/5-86-
001). These criteria include promulgated
criteria (AWQC), as well as "lowest
observed effects levels" (LOELs) (which
have not yet been promulgated). The
water quality criteria are based on
environmental water quality criteria
(i.e., acute and chronic fish (fresh and
marine) toxicity), and human health
water quality criteria (i.e., human
ingestion of fish, or fish and surface
water). The exposure scenario
underlying these numbers is based on
surface water pathways. (See Note to
File regarding Health-based Levels and
AWQC in the Docket for Today's Rule.)
Although EPA is well aware of the
differences between CBEC and ECHO
number, and AWQC, the Agency  notes
that linking leaching landfills to surface
water contamination involves an
extensive modeling and assessment
effort which has not been performed on
a notional basis. The Agency does not
know the extent to which this is surface
waster contamination routes of serious
concern. EPA solicits comment on
whether or not surface water
contamination from landfill leachate is
so site-specific and unusual that control
of it is could best be addressed under
the Regional omnibus authority
proposed today, or whether CBEC/
ECHO values need to be adjusted to
reflect the level of control provided by
AWQC.
  The Agency has also considered
numerical means of predicting possible
additive effects from multiple
constituents, but decided not to add
risks from constituents for this proposal.
The Agency does not have sufficient and
adequate scientific information to
establish a numeric method. The  Agency
is unsure of the relationship, if any,
between constituents that reach the
receptor at different points in time.
Further, each receptor—bird, fish,
human—has different physiological
system for responding to exposure to
toxicants. Primarily, the Agency was
concerned that the difficulties of
implementing such an approach
outweigh any potential incremental
benefits beyond the existing
conservativeness of the exemption
levels and the possible use of a 1,000
                        ppm exemption level cap. This approach
                        is consistent with that used to evaluate
                        delisting petitions which also does not
                        incorporate additive effects. (Waste-
                        specific additive effects are considered
                        during RCRA corrective action and
                        clean  closure and in Superfund cleanups
                        and may be considered in the evaluation
                        of exemptions  on a case-by-case basis.)
                        Comments are  requested on the
                        proposal not to consider additive effects
                        from multiple constituents in today's
                        proposed exemption process.
                          The Agency  also requests comment
                        and supportive data on whether other
                        exposure pathways should be
                        considered for  specific constituents  and
                        the exposure scenario(s) that would be
                        appropriate in  modeling those additional
                        exposure pathways. One pathway of
                        particular concern is volatilization to the
                        atmosphere. The Agency's conservative
                        analysis has demonstrated that air
                        emissions from TSDFs may pose
                        substantial risk in the absence of
                        controls. The Agency is controlling these
                        risks in two rulemakings (final rule 55
                        FR 25454, June  21,1990, and  proposed
                        rule 56 FR 33490, July 22,1991). Together,
                        these  rules would reduce the risk from
                        air emissions from the vast majority of
                        these  facilities to well within the risk
                        range of other  RCRA standards. The
                        emission reductions achieved by these
                        rules could also significantly reduce the
                        formation of tropospheric ozone, which
                        has adverse effects on human health
                        and the environment.
                          Today's rule could affect the TSDF air
                        emissions regulations in the following
                        way. The TSDF rules were designed to
                        prevent volatilization of hazardous
                        organics as they move through storage
                        and treatment, keeping the organics in
                        the waste until it ultimately undergoes
                        BOAT treatment, which is assumed to
                        remove any significant risk from
                        exposure via the air medium. If, under
                        today's HWIR proposal, waste leaves
                        the system without BOAT treatment,
                        that waste may pose a potential  risk
                        through exposure to air emissions. If
                        significant risk exists, it may be
                        necessary to develop air-based
                        exemption criteria to supplement those
                        suggested in today's proposal. In the
                        Agency's July  21, 1991, proposal  such
                        criteria could entail additional waste
                        testing. The Agency specifically  requests
                        comment on this issue, and on ways to
                        address it. Comments on these topics
                        should address the appropriateness of
                        incorporating  such pathways into the
                        national exemption criteria  versus
                        allowing the Regional Administrators or
                        authorized State officials to determine
                        the need for consideration of additional
pathways (such as dermal exposure) on
a case by case basis.
  The options proposed today do not
account for the effects of hazardous
emissions into the air medium. In
section 3004(n) of Hazardous and Solid
Waste Amendments of 1984 (HSWA),
Congress directed the Agency to
promulgate regulations controlling air
emissions from hazardous waste
treatment, storage, and disposal (TSDF)
facilities as necessary to protect human
health and the environment. In
developing these regulations, (Phase I
final rule 55 FR 25454 (June 21,1990),
and Phase II proposed rule 56 FR 33490
(July 22,1991)), the Agency estimated
nationwide organic emissions to be
approximately 1.8 megagrams per year
(mg/yr)(2,000,000 tons per year). These
emissions may contain toxic chemical
compounds as well as ozone precursors.
Since the effectiveness of these controls
depends upon the fact that hazardous
wastes are accounted for within the
RCRA Subtitle C system, any exemption
of wastes from this system has the
potential of limiting the effectiveness of
these controls on reducing the risk from
hazardous air emissions. The Agency
specifically requests comment on this
issue, and on ways to address it.
  Finally, the Agency recognizes that a
few facilities may face difficulties
meeting the exemption criteria because
of very high background levels of one or
more of the constituents on the
exemption list in their soil or
groundwater. Data from EPA Region
VIII indicates high background levels of
arsenic, beryllium, and chromium that
appear to exceed some of the exemption
levels when dilution or attenuation is
not considered (this information is
available in the public docket for this
rule). The Agency is requesting
comments on whether the exemption
rule should include provisions for
making statistical comparisons to
background levels. One possible
statistical technique for background
data that conform to normality
assumptions includes combining the
Student-t difference of means test
presented in the Permit Guidance
Manual on Unsaturated Zone
Monitoring for Hazardous Waste Land
Treatment Units, (EPA, 1986) with the
normal tolerance interval approach
found in Statistical Analysis of Ground
Water at RCRA Facilities—Interim Final
Guidance, (EPA, April 1989). The
Student-t test compares averaged
waste/media concentrations to
background concentrations, and is used
to determine if the waste/media as a
whole is within a specified criteria.
However, even if the waste/media

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               Federal  Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed  Rules
                                                                      21485
passes the Student-t test, individual
sample concentrations may still exceed
the tolerance interval limit. The normal
tolerance interval approach is used to
compare sample concentrations to an
upper tolerance value based on the
background mean, standard deviation,
and sample size.
  If such an approach is incorporated
into the final rule, it would include
criteria for defining and collecting
adequate background samples. More
specifically, the facility would be
required to identify background
locations, sample size, soil depth, etc.
for at least four samples in a "difference
of means" demonstration, and six to
eight samples for a "tolerance of means"
demonstration. The facility would also
need to demonstrate the normalcy of the
sample distribution. The Agency would
require that this information be included
as part of the facility's sampling and
analysis plan and subject to review by
the appropriate Regional Administrator
or authorized state official prior to plan
implementation. Alternatively, the rule
could defer any background level
demonstrations to an omnibus  authority
designated to the Regional
Administrator. Comment is requested on
the need for this authority.
  The Agency  solicits comments on
other appropriate and generic ways (1)
to identify background levels in soils,
and (2) to incorporate the existing 40
CFR part 264, subpart F standards for
establishing background levels for
groundwater. Other suggestions that
address the Agency's intent to
promulgate a simplified exemption with
little reliance on site-specific
considerations but also allow for
consideration of elevated background
levels will be considered.
X. Dilution
   The 1984 RCRA Amendments
(HSWA) established a national policy
for minimizing the generation of
hazardous wastes. Section 1003 of
RCRA, as amended in 1984, established
a national waste minimization policy
stating that "wherever feasible, the
generation of hazardous waste is to be
reduced or eliminated as expeditiously
as possible". The policy also cited the
need to reduce the volume and toxicity
of hazardous wastes which is
nevertheless generated.  Similarly,
section 3005(h) prescribed that effective
September 1,1985, all RCRA permitttees
who generate waste disposed of,
treated, or stored on-site must  certify
(on an annual  basis) that the facility has
waste minimization programs in place.
In addition, section 3002(b) mandates
that hazardous waste generators  include
a certification  with their hazardous
waste manifests that the generator has a
waste minimization program in place
and that the proposed method of off-site
management minimizes threats to
human health and the environment. In
concert with these HSWA mandates, it
is the Agency's policy to encourage
source reduction and waste treatment as
preferable to disposal and dilution.
  EPA has also recognized that
successful implementation of the land
disposal restrictions requires that, in
general, dilution be prohibited as a
partial or complete substitute for
adequate treatment of prohibited toxic
wastes (40 CFR 268.3). The legislative
history indicates that dilution "is not an
acceptable method of treatment to
reduce the concentrations of hazardous
constituents" (S. Rep. No. 284, 98th
Congress, 1st Session 17 (1983)).
  The Agency also generally opposes
the dilution of hazardous wastes for
several technical reasons. Most
importantly, dilution is an
environmentally inappropriate means to
reduce toxicant concentrations when
other alternatives are possible, because
it does not reduce toxicant loadings to
the environment. The same  mass of
toxicant is released to the environment
when a diluted waste is  disposed as
would be if that same waste, prior to
dilution, were to be disposed.
  For these reasons, dilution is
prohibited as a means to achieve the
exemption levels under today's
proposal. Because under some options
proposed today, the rule could impact
the LDR levels, allowing dilution as a
means of achieving exemptions would
be inconsistent with the ban on dilution
included in the land disposal restrictions
rules (40 CFR 268.3). In addition, dilution
would be inconsistent with  the
Congressional mandate to treat rather
than dilute toxic wastes and the purpose
of this rule (e.g., to encourage treatment
of listed wastes). Thus, today's proposed
rule specifically prohibits dilution as a
means of attaining the exemption levels
in accordance with  the dilution
requirements of the LDR program (see 40
CFR 268). Such prohibition is likewise
authorized by section 3004(a)(3), which
allows EPA to prescribe treatment
methods, techniques and practices as
may be necessary to protect human
health and the environment.
  The Agency considers dilution to be
the addition of any other material, either
liquid or non-liquid, to increase the
volume of a given waste to reduce waste
constituent concentrations.  For example,
the unnecessary addition of non-process
waters (e.g., cooling waters) to a
wastewater treatment system to achieve
exemption levels is a form of
inappropriate dilution. Similarly, the
addition of clean soil to contaminated
soil to achieve exemption levels is
another type of prohibited dilution (see
55 FR 22666; June 1,1990).
  The Agency recognizes that many
treatment methods require the addition
of reagents. These reagents produce
physical and/or chemical changes, and
do not merely dilute the hazardous
constituents into a larger volume of
waste so as to lower the constituent
concentration. In prohibiting dilution as
a substitute for adequate treatment, the
Agency does not intend to prevent
facilities  from adding materials that are
necessary to facilitate proper treatment
to meet the proposed exemption levels.
  A facility claiming an exemption must
be prepared to provide justification that
these additives are necessary for
treatment. Moreover, the facility must
be able to show not only that the
material is added for purposes other
than dilution, but also that the amount
added is  no more than what is
necessary to effect the physical/
chemical changes. The facility must
have this justification available on site
and ready at all times for inspection by
the Agency or State officials. For
example, consider a facility which is
conducting lime stabilization on existing
hazardous lagoon sludge using 40
percent lime and has demonstrated that
the resultant stabilized material meets
the exemption concentrations. This
facility must have evidence to
demonstrate that the 40 percent lime
mixing ratio is required and that a
significantly smaller mixing ratio (such
as 10-20 percent lime) would not work
as effectively.

XI. Implementation

A. Overview

  As discussed above, there are two
different structural approaches in
today's rule: (1) The ECHO approach,
which would unify entry and exit levels
for subtitle C and (2) the CBEC
approach, which alternatively would
establish a generic exit from subtitle C.
In addition, the Agency is proposing a
"contingent management" approach,
which could be combined with either
ECHO or CBEC to provide an additional
exit for subtitle C hazardous wastes that
are managed under conditions which the
Agency determines to be protective.
These approaches raise  different
implementation issues.

1. ECHO

  The ECHO approach would expand
the current hazardous waste
characteristics and set uniform entry

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21486
Federal Register / Vol.  57, No. 98 / Wednesday, May 20,  1992 / Proposed Rules
and exit concentration levels for subtitle
C jurisdiction. The ECHO approach thus
would be implemented through the
current subtitle C regulations.
  As is currently required, generators
would be responsible for determining
whether their wastes are
characteristically hazardous. This could
be done either by testing the wastes
according to the methods set forth in
subpart C of 40 CFR part 261, or by
applying knowledge of the hazard
characteristic of the waste in light of the
materials or the processes used. See 40
CFR 262.111. Wastes exhibiting a
hazardous characteristic would be
subject to all applicable subtitle C
regulations. Generators of wastes which
become newly regulated as hazardous
wastes under the  ECHO criteria would
be required to submit notifications of
hazardous waste management activity
using EPA form 8700-12.
  As a result of the ECHO approach,
some wastes currently under subtitle C
jurisdiction would no longer be
regulated under that program. It will be
important for the Agency to have
information regarding what
wastestreams are exiting the system to
oversee the transition to the new
jurisdictional criteria. The Agency will
also need this information to
appropriately adjust its compliance
monitoring program to account for
changes in the status of generators that
previously had notified of hazardous
waste management activity. Therefore,
if the ECHO approach is chosen,  the
Agency would require generators of
what had been listed wastes that are
exiting the subtitle C system as a result
of ECHO to test their wastes for all
Appendix VIII constituents and to
submit to the Regional Administrator a
one-time notification and certification
that their wastes  do not exhibit
hazardous waste characteristic.
Generators of listed waste as of the
effective date of ECHO will continue  to
be subject to subtitle C regulations  until
the Agency receives the notification that
the waste does not exhibit a
characteristic. (Wastestreams newly
regulated as a result of ECHO and new
wastestreams generated after the
effective date of ECHO would not be
subject to the mandatory one-time
testing and notification requirement, but
would have to notify under EPA form
8700-12.) This notification could  require
various types of information. A more
detailed discussion of ECHO of the
implementation, including the testing
requirement and  proposed notification
and certification, is set forth below.
                        2. CBEC
                          The CBEC option would establish a
                        baseline set of constituent-specific
                        exemption levels for waste and
                        contaminated media. Wastes and media
                        with hazardous constituent
                        concentrations below the baseline
                        exemption levels would be conditionally
                        exempt from subtitle C.6 As an
                        exemption program for wastes which
                        the Agency has determined are
                        hazardous, but not at levels of
                        regulatory concern, certain requirements
                        would be  imposed in order to ensure the
                        eligibility  of the wastes for the
                        exemption. These requirements would
                        differ from the requirements which
                        currently exist to determine entry into
                        the subtitle C system (and which would
                        continue to apply should the existing
                        characteristics be expanded under
                        ECHO). These requirements would be
                        considered necessary to ensure that
                        only those hazardous wastes which
                        truly met the exemption criteria exited
                        the subtitle C system.
                          The Agency is proposing that CBEC
                        exemptions be self-implementing. No
                        Agency review of sampling plans or
                        data, or prior Agency approval, would
                        be required before wastes or media
                        could be managed as nonhazardous. The
                        Agency is proposing sampling, testing,
                        notification and recordkeeping
                        requirements as conditions that must be
                        met by a generator to qualify for the
                        generic exemption.
                          The Agency is proposing that, to claim
                        a CBEC exemption, wastes and media
                        must be sampled and tested annually for
                        the first two years.7 Thereafter, a waste
                        or media need only be tested every three
                        years. In the first year, the waste  or
                        media must be tested for all 200 of the
                        exemption list constituents. In
                        subsequent years, a waste or media
                        need only be tested for those
                        constituents which were detected during
                        the previous year of testing. Additional
                        testing would also be required whenever
                        process changes occur that could affect
                        waste or media composition. All 200 of
                        the exemption list constituents would
                        need to be tested for after such a process
                        change, unless the generator can
                        demonstrate and document a reasonable
                        basis for testing for a more limited
                        number of constituents. Generators may
                        not use their knowledge of the waste or
                        media to  determine whether the waste
                          6 Exempted wastes would continue to be solid
                         wastes, and as such would require proper
                         management under subtitle D. Further, this generic
                         cut-off would set a level at which media was no
                         longer contaminated with a listed hazardous waste.
                          7 Note that this requirement would not apply to
                         generators claiming exemptions for waste or media
                         that are generated or managed on a one-time basis.
or media is exempt under a CBEC
exemption. (Knowledge of the waste
could be used as a basis for more
limited testing in the event of a process
change.) The determination must be
based on sampling and analysis that
conforms with the data requirements
discussed below.
  Testing would be done in accordance
with a sampling and analysis plan that
includes the basic elements of sampling
and analysis plans described in Chapter
One of SW-846. This would include a
detailed description of the planned
sampling protocols and equipment,
statistical methods to ensure that the
samples are representative, quality
assurance plans, any expected
modifications of the SW-846 analytical
methods listed in Appendices  [x+1] or
[x + 2] and, as applicable, proposed
analytical equipment, etc.
  A generator claiming a CBEC
exemption would submit to the Regional
Admininstrator (or authorized State) an
initial notification of that claim and a
certification stating that the information
contained in the notification is complete
and accurate. The exemption for CBEC
waste or media would become
conditionally effective as of the date
that the Regional Administrator
receives, via certified mail with return
receipt, the facility's notification and
certification.
  Generators would retain the following
documentation on-site for at least  three
years after the date of notification: a
copy of the notification and certification;
the sampling and analysis plan, a
sampling record that supports all
sampling events and demonstrates that
the samples are representative of the
temporal and spatial variability of the
waste; and analytical laboratory results
for all samples.
  Generators claiming a CBEC
exemption would be required  to re-test
and re-submit their waste  or media
notifications and certifications annually
for the first two years, and every three
years thereafter. Should a change  in
process occur that could affect waste or
media composition, generators also
would be required to re-test and submit
a new notification and certification
reflecting the process change.
  Generators would have to meet all  of
the applicable conditions to qualify for
the CBEC exemption. The Agency is
proposing that any misrepresentation,
erroneous demonstration,  or incomplete
adherence to the conditions would make
the waste or media ineligible for the
exemption and the waste or media
would thus be subject to all subtitle  C
management requirements. Even if the
exempted waste or media is the only

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                Federal Register  /  Vol. 57,  No. 98  /  Wednesday, May 20, 1992 /  Proposed Rules	21487
 hazardous waste generated by the
 facility, the facility will retain its EPA
 identification number and is subject to
 all applicable hazardous waste
 regulations if the exempted waste or
 media reverts to a hazardous waste
 through reconstitution, treatment,
 process upsets or changes, or any other
 reason.

 3. Contingent Management Exemptions
   The contingent management
 exemption would apply to wastes and
 contaminated media with hazardous
 constituent concentrations greater than
 the ECHO or CBEC constituent
 concentration levels, but less than or
 equal to a second higher set of
 constituent-specific exemption levels.
 These wastes and media would be
 conditionally exempt from subtitle C
 requirements so long as they are
 managed  in accordance with the
 management practices being proposed
 today. Wastes and media meeting these
 "contingent management" levels and
 that are not managed in accordance
 with the specified management
 practices  would be hazardous wastes
 subject to full subtitle C jurisdiction.
   The Agency is proposing that the
 contingent management exemption  be
 self-implementing. No Agency review of
 sampling  plans or data, or prior Agency
 approval,  would be required before
 wastes or media could be managed
 under contingent management
 conditions.
   The Agency proposes that the
 contingent management exemption
 would be  conditioned upon three
 requirements: (1) sampling and testing
 according to the same standards as
 those that would apply for the CBEC
 exemption; (2) submittal (and re-
 submittal) of the same notification and
 certification as would be required for
 the CBEC  exemption; 8 and (3) disposal
 of the waste in accordance with the
 management  standards established by
 this rule.
  Because a contingent management
 exemption is  conditioned on the proper
 management  of the waste or media—i.e.,
 disposal in accordance with specific
 management standards—the Agency is
 proposing that the exemption would not
 become effective until the waste or
 media is actually disposed of in
 accordance with the management
 standards [e.g., when wastes or media
 enter a qualifying disposal unit). The
 waste or media, therefore, must be
 managed as a subtitle C hazardous
 waste from the point of generation until
 disposal. It would be subject to all of the
 applicable RCRA requirements. This
 includes 40 CFR parts 262 and 263,
 which contain, among other provisions,
 the manifest, waste accumulation and
 export provisions. Furthermore, the
 receiving facility would have  to manage
 the candidate exemption waste or media
 as a hazardous waste if it cannot
 dispose of the waste or media without
 prior storage.9
  This implementation structure is
 intended to help ensure safe
 management of the waste or media prior
 to satisfaction of the condition justifying
 the exemption. For example, if a
 candidate waste was spilled during
 transport it would be a hazardous waste
 because disposal did not occur in  a
 qualifying unit. The Agency, therefore,
 believes that it would be important to
 impose the same controls on transport of
 the candidate second tier exemption
 waste as would be imposed on transport
 of the same waste if it was  destined for
 a subtitle C facility. The Agency also
 believes that continuing to mange  the
 candidate exemption waste as
 hazardous  prior to disposal provides a
 simple implementation structure. For
 example, rather than setting up two
 alternative waste tracking systems,
 generators would be able to utilize a
 single form. Use of the manifest also
 helps to minimize conflicts that may
 arise if waste moves through states
 which have not adopted the contingent
 management exemption.
  The generator would have the burden
 of demonstrating that all  of the
 conditions  for the contingent
 management exemption described
 above have been met. In an enforcement
 action, a waste or media for which an
 exemption  is claimed would be
 considered a subtitle C hazardous waste
 unless the generator was  able to
 produce evidence that all of the
 conditions of the exemption have been
 met. Failure of a disposal facility to
 manage candidate exemption  wastes in
 accordance with the management
 standards would also nullify the
 exemption. In such instances,  the waste
 would remain a hazardous waste and
 the facility  would become a subtitle C
 treatment, storage, and disposal facility.
  8 Contingent management exemption claimants
would also be required to resubmit the notification
and certification whenever there is a change in the
identity of the disposal facility receiving the waste
or media.
  9 The Agency is proposing to amend 40 CFR 264.1
to allow facilities disposing of contingent
management wastes (and solid wastes) to store
contingent management wastes for up to 10 days
without becoming a subtitle C treatment, storage,
and disposal facility. The Agency requests comment
on whether 10 days is a sufficient or appropriate
length of time, and if not, what time period may be
appropriate.
 B. Implementation of the ECHO
 Approach

   The ECHO approach would expand
 the current hazardous waste
 characteristic approach to subtitle C
 jurisdiction. Wastes determined to be
 hazardous under the ECHO approach
 would be subject to all applicable
 subtitle C regulations to the same extent
 that characteristic hazardous wastes are
 currently subject to subtitle C
 regulations.
   ECHO would establish no new
 requirements for characteristically
 hazardous wastes than currently exist,
 except for the testing and one-time
 notification discussed below.
 Generators bear the responsibility to
 ensure that their waste determination is
 accurate. As long as the generator
 manages the waste as nonhazardous,
 the generator must be able to
 demonstrate that the waste does not
 exhibit a characteristic. As with other
 characteristics, generators may rely on
 test results, knowledge of the waste, or
 some combination of the two methods.
 Under ECHO, generators would not be
 required to test their wastes (except for
 generators of listed wastes subject to
 the onetime notice) or retest periodically
 or in the event of a process change. The
 current regulatory requirements and the
 operational practices of transporters
 and TSDFs assume that legal liability
 encourages generators to test their
 wastes whenever there is reasonable
 uncertainty that the waste exhibits a
 hazardous waste characteristic.
 Although the Agency recommends that
 generators of characteristic waste re-
 test after any process change which may
 affect the hazardous composition of a
 waste, the Agency recognizes that the
 hazardous waste characteristics apply
 to a wide range of waste streams. With
 such a wide variety of streams regulated
 under the characteristic, the Agency
 believes that there may be some waste
 streams for which process knowledge
 may be sufficient to determine if a waste
 exhibits a characteristic.
  As now, under ECHO the Agency
 would encourage generators to conduct
 and document their sampling and
 analysis of their waste, if conducted, in
 light of the possible legal liability.
 However, the Agency does not now
require generators to document the
 sampling and analysis that informed
 their waste management decisions and
would not do so under ECHO. As now,
under ECHO generators would have the
flexibility to determine the appropriate
level of sampling, analysis, and
documentation for their waste
determinations.

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21488         Federal Register / Vol. 57, No. 98  /  Wednesday, May 20, 1992 / Proposed Rules
  As discussed above, under the ECHO
approach some wastes currently
regulated under subtitle C would exit
that system. The Agency is proposing
that generators of wastestreams that
had been considered listed wastes but
which would no longer be hazardous
waste under ECHO be required to
analyze their wastes for all Appendix
VIII constituents and submit to the
Regional Administrator one-time
notifications of the change in the
regulatory status of their wastes and
certifications that their wastes do not
exhibit a hazardous waste
characteristic. Facilities for which only
some waste streams would exit subtitle
C and which would still continue to
manage some hazardous waste would
still be required to submit this
notification and certification. The
Agency is proposing that testing for the
one-time notification be conducted
according to the methods set forth in
subpart C of 40 CFR part 261.
  Under this proposal, generators of
listed wastes as of the effective date of
ECHO would remain subject to subtitle
C jurisdiction until the Agency received
the notification. Thus, for those
generators, ECHO would operate as a
conditional exclusion. Generators of
wastes that become newly regulated as
a result of ECHO and generators of new
wastestreams after the effective date of
ECHO would not be subject to the one-
time testing and notification
requirement, but would be subject to the
waste determination requirement of 40
CFR 262.11 and would be required to
notify the Agency if they were managing
a hazardous waste, using EPA form
8700-12. ECHO would not operate as a
conditional exclusion for those
generators.
   The Agency is proposing that the
notification include the following
information: (1) The name, address, and
RCRA ID number of the facility; (2) the
EPA hazardous waste code applicable
to the waste; (3) the characteristics and
constituents for which the waste was
evaluated under the ECHO criteria; and
 (4) the constituent concentrations in the
waste which form the basis for the claim
 that the waste is not characteristically
 hazardous.
   The notification would be
 accompanied by a certification by a
 responsible corporate officer that the
 information contained in the notification
 is complete and accurate. The Agency
 requests comment on whether the
 notification and certification should also
 be required of generators of wastes
 currently considered to exhibit the
 toxicity characteristic, if under ECHO
 the constituent concentration levels
change such that the waste would no
longer be considered to exhibit the
toxicity characteristic.
  It should be noted that units managing
wastes that would no longer be
hazardous under the ECHO criteria
would continue to be regulated
hazardous waste management units
subject to the requirements of parts 264
and 265, including the closure
requirements. A unit receiving only
waste that is shown not to be a
hazardous waste under the ECHO
criteria would no longer be receiving
hazardous waste upon the effective date
of the ECHO criteria and thus normally
would become subject to subtitle C
closure requirements. How closure
requirements would apply to these units
is discussed in section XIII.E.
   ECHO also may bring new wastes
into the subtitle C system. Generators of
wastes which become newly regulated
as hazardous wastes under the ECHO
criteria would be required to submit
section 3010 notifications of hazardous
waste management activity using EPA
form 8700-12 and obtain EPA
identification numbers. Newly regulated
facilities, i.e., facilities at which  the only
hazardous wastes that are treated,
stored, or disposed are wastes newly
regulated under ECHO) will have to
qualify for interim status by the  effective
date of the rule in order to continue
managing wastes that become newly
hazardous prior to obtaining a permit.
To obtain interim status, eligible
facilities will have to submit section
3010 notifications by the effective date
of the regulation and part A applications
by no later than six months after
publication of the final ECHO rule. To
retain interim status, a newly regulated
facility will have to submit a RCRA
permit application within one year after
the effective date of the rule and certify
that the facility is in compliance with all
applicable groundwater monitoring and
financial responsibility requirements
(see RCRA Section 3005(e)(3) and 40
CFR 270.73(d)). Permitted and interim
status facilities which manage a solid
waste that is newly defined as
hazardous waste as a result of ECHO
will have to submit Class 1 permit
modification requests or part A permit
 application revisions to EPA. Facilities
 will to have to manage these wastes in
 accordance with 40 CFR part 265 or 40
 CFR part 264 until permit modification
 or issuance, depending on whether the
 waste is managed in a newly regulated
 or previously regulated unit.
C. Implementation of the CBEC
Approach

1. Sampling Requirements for CBEC
Exemptions

  In today's notice, as an alternative to
ECHO, the Agency has proposed
concentration-based exemption levels at
which a solid waste or media would not
be considered hazardous. To ensure that
facilities accurately characterize
constituent concentrations in their
wastes, the Agency is proposing a series
of sampling and analytical requirements
to be  imposed upon persons seeking
CBEC exemptions that would be
codified in Appendix (x+3) to 40 CFR
Part 261. These requirements are viewed
as the minimum necessary to make a
CBEC exemption  determination.
Following these requirements, however,
does not imply that the determination
will be adequate.  It is ultimately the
responsibility of the generator to ensure
that the sampling and analysis is
accurate and representative of its
wastes.
  Changes in waste composition or
leaching characteristics. At any time
where there is a process or other change
which may affect waste composition or
leaching characteristics, the facility
would be required to re-characterize the
waste and determine that the waste
continues to meet the applicable
exemption levels  before disposing of the
waste as non-hazardous. Results would
be  retained documenting the process, or
other changes, the testing undertaken,
and the resulting  changes in waste
composition. Should the results indicate
that the waste does not meet the
applicable exemption levels, that waste,
and any subsequently generated wastes,
would be required to be managed as a
hazardous waste until the generator
notifies the Regional Administrator that
the operating and/or waste management
process produces waste meeting the
exemption criteria. Although the Agency
believes it is important that any process
change that could affect the ability of
 the waste to qualify for a CBEC
 exemption be evaluated, it is also very
 difficult to define or quantify what
 process changes  would affect waste
 composition or leaching characteristics.
 Not all process changes would
 necessarily affect waste composition.
 The Agency has not yet developed
 regulatory language which better defines
 the process changes which would nullify
 a CBEC exemption and require retesting,
 renotification and recertification. The
 Agency requests comment on how best
 to  describe such  a process change in the
 regulations. The  Agency notes that,
 because testing is not required to

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               Federal Register  /  Vol. 57.  No. 98  /  Wednesday, May 20,  1992 / Proposed Rules        21489
determine entry into subtitle C, and thus
there are no re-testing requirements, the
Agency would not have to define
"process change" if the ECHO approach
is chosen.
  The facility will also be held liable for
any changes in the waste after
generation which may cause the waste
to revert to a hazardous waste. For
example, if an exempted waste were
managed in such a manner that it
becomes more concentrated over time
(e.g., reconstitution) due  to  evaporation
or other factors, the facility is
responsible for determining that the
waste continues to meet the exemption
criteria.
  Data evaluation. The Agency is
proposing that, for CBEC exemptions,
facilities would be required to evaluate
their wastes, contaminated media or
materials based on the maximum
detected concentrations  of the
exemption constituents. This
conservative approach is consistent
with the delisting program's general
approach to evaluating wastes
petitioned for exclusion. While the
Agency believes that this approach is
the most appropriate approach for a
self-implementing exemption program,
the Agency is also taking comment on
whether to evaluate analytical results in
terms of average concentrations or some
other data evaluation mechanism (e.g.,
at some confidence interval). For
example, in determining whether a
waste exhibits a hazardous waste
characteristic, chapter 9 of SW-846
requires the use of the upper limit of the
80% confidence interval  for the mean. In
addition, the Agency solicits comments
on implementable techniques  for the
identification of analytical outliers.
  Sampling and analysis plan. The
Agency is proposing that all facilities
seeking a CBEC exemption prepare a
sampling and analysis plan. In general,
the sampling and analysis  plan must
demonstrate that the samples to be
taken and analyzed will be
representative of any spatial and
temporal variations in the exemption-
candidate waste or media. The facility
would be required to repeat the
sampling and analysis demonstration
according to the frequency set forth in
the regulations. More frequent sampling
will be necessary should there be any
significant changes in the production or
waste  treatment process or when the
minimum sampling requirements are
insufficient to be representative  of the
waste. The sampling and testing burden
for facilities that routinely  change their
production processes, e.g.,  by changing
chemical feedstocks, will be greater
than for a facility  with a stable and
consistent process. The specific
requirements being proposed for
sampling and analysis plans would be
codified in Appendix (x + 3) to 40 CPA
part 261.
  The sampling and analysis plan would
have to demonstrate that sampling will
be representative of routine changes in
production processes and/or treatment
processes both during a specific
sampling event and across all operating
conditions. The sampling and analysis
plan would also have to address any
process upsets or other factors which
may affect waste or media composition
or leaching characteristics. The Agency
believes that an adequate determination
will generally need to include more than
the minimum sampling requirements to
provide a fully representative
demonstration of the composition and
leaching characteristics of the candidate
waste or contaminated media.
  Each time the facility samples the
subject waste or media, the facility or its
agent would be required to document
that the sampling and analysis plan has
been followed. Problems encountered
during  the sampling event, and
corrective measures taken to ensure the
integrity of the process, must be
documented and retained for at least
three years.  See discussion of
recordkeeping at section XI.E.
2. Testing Requirements for CBEC
Exemptions
  Facilities would be required to use the
analytical procedures described in SW-
846, 3rd edition when analyzing their
wastes or contaminated materials for
exemption determinations. To use
equivalent procedures to SW-846, a
claimant must petition the Agency in
accordance with 40 CFR 260.21. Due to
the wide variation in the occurrence and
concentration of hazardous constituents
in wastes and contaminated materials,
each generator would be required to test
each waste or material for which they
seek a  CBEC exemption for all of the
exemption list constituents. In addition,
the facility would not be able to make
the determination that a listed
hazardous waste or contaminated
material meets the exemption levels
based  on his knowledge of the waste or
material.
  The  Agency is requesting comment on
the appropriateness of requiring
analysis for all 200 constituents for the
first year the exemption is claimed, and
requiring analysis in subsequent
demonstrations for only those
constituents previously detected. The
Agency is proposing this approach
because it believes that there is a
heightened need to ensure that wastes
leaving the hazardous waste
management system do not contain any
hazardous constituents above the
applicable exemption levels. The
Agency believes that this approach
balances the need for a comprehensive
and objective basis for waste
management decisions with the need to
make the exemptions practically
available to generators of waste that
meet the appropriate exemption levels.
  There could be other ways to balance
the above concerns. One option would
be to require analysis for all 200
constituents every year the exemption is
claimed. This approach is very
comprehensive and favors the need to
ensure continued applicability of the
waste management decision, but may
impose a practical barrier to generators
who might otherwise be eligible for the
exemption. Comment is requested on
whether the information that would be
gathered through annual testing for all
200 constituents is necessary to ensure
continued applicability of the
exemption. Comment is also requested
on what the burden of requiring annual
testing for all 200 constituents might be
for generators.
  Another option is for EPA to define, in
regulations, for major waste streams,  a
set of constituents that it believes would
fairly characterize those waste streams.
EPA believes such an approach may be
desirable in the long term to reduce
costs, especially in industries with large
numbers of generators. EPA asks for
comment on the feasibility, or need, for
this approach in the long term. The
Agency notes that this could require it to
expend significant resources. The
Agency requests comment on whether
such knowledge will arise as these
programs are implemented and
transporters impose their own
requirements.
  Yet another option would be to allow
the generator to use process knowledge
to determine which exemption
constituents are likely to be present in
their waste and test for those
constituents. This option would
minimize the potential barrier that
testing might pose for generators seeking
an exemption, but could be less
comprehensive. Comment is requested
on whether process knowledge provides
a sufficiently objective and
comprehensive  basis for determining
which constituents to test for. This
approach is comparable to the system
under the ECHO approach. This system
relies on the substantial threat of civil
liability, including CERCLA liability, to
encourage generators to ensure that
their wastes either are not
characteristically hazardous under
ECHO or ineligible for CBEC. The

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21490         Federal  Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed  Rules
Agency requests comments on other
options as well.
  The Agency is proposing the Toxicity
Characteristic Leaching Procedure
(Method 1311) as the method to model
concentrations of hazardous
constituents found in waste and soil
extracts. TCLP extract concentrations
will be compared to the levels specified
in appendix [x + 2]. These exemption
determinations must be based solely on
the results of testing. The Agency is
asking for comment on whether both
total compositional and leachate
analysis for all of the exemption
constituents be conducted  on all soil
samples. As discussed in Section VIII,
the Agency is also taking comment on
the Synthetic Precipitation Leaching
Procedure (Method 1312) as an
appropriate protocol for modeling
concentrations of hazardous
constituents in soil extracts for
exemption determinations. The facility
would have to demonstrate that
concentrations of hazardous
constituents found in the subject
contaminated soil and in its Method
1312 leachate are below the levels
specified in appendix [x + 1].
  As part of the  record, generators must
retain  analytical results on site for at
least three years. See discussion of
recordkeeping at section XI G. These
results, as well as any other required
document, would have to be  submitted
to the Regional Administrator upon
request. At a minimum, analytical
reports must include the following: (1)
The name and address  of the laboratory
performing the waste analyses; (2) the
names and qualifications of persons
performing analysis; (3) date of analysis;
(4) description of sample preparation
techniques used for extraction of the
samples; (5) a description  of the tests
performed, testing results,  and quality
assurance/quality control  (QA/QC)
documentation;  and (6) the names and
model numbers of the instruments used
in performing the tests. The specific
QA/QC requirements associated with
the specific methods listed in
Appendices [x + 1] and [x + 2] must also
be followed.
   The Agency requests  comments on
whether the Agency should require that
all CBEC exemption analyses be
conducted by independent laboratories
as an  added assurance of  the validity of
test results. The Agency also requests
comment on whether it  should require
facilities to analyze spiked samples
prepared by EPA laboratories on a
periodic basis as a  means of measuring
 the  qualifications of the facility's
 laboratory, and what the costs of such a
 requirement might be for the Agency
and the regulated community. The
Agency also seeks comment on other
analytical options aimed at ensuring the
accuracy and validity of exemption
determinations.
3. Notification Requirements
  To qualify for a CBEC exemption, a
generator would need to submit to the
Regional Administrator a formal
notification of its claim that wastes or
media are nonhazardous as a result of
the concentration-based exemption
criteria. The notification would be
required to include an accompanying
certification by a responsible corporate
officer that the information contained in
the notification is complete and
accurate.
  Generators continuing to generate or
otherwise manage waste or media for
which they continue to claim a CBEC
exemption would be required to re-
submit the notification and certification
(and retest the waste or media) annually
for the first two years an exemption is
claimed. Thereafter, re-submittal  of the
notification and certification (and
retesting of the waste or media) would
be required once every three years and
when changes occur to  the process that
could affect  waste or media
composition.10 The Agency is proposing
this schedule of testing as a means to
ensure continued applicability of the
exemption through periodic "checks" on
the data. The Agency is taking comment
on whether this schedule is sufficient or
unnecessary to accomplish this goal,
and on what other schedules of testing
could provide assurance of continued
applicability of the exemption. The
Agency is asking for comment on
whether re-testing and re-submittal of
the notification and certification should
be required more or less frequently than
the schedule proposed today. The
Agency is also requesting comment on
whether re-testing and  re-submittal of
the notification is necessary  at all.
  The absence of either a re-submittal
or appropriate re-testing would breach
the procedural conditions upon which
the exemption is based; without a re-
submittal and appropriate re-testing the
waste or media would be considered a
hazardous waste and subject to subtitle
C requirements. If a generator finds that
the exempted waste or media no  longer
meets the exemption criteria, the
generator immediately must  comply
with all applicable requirements  for
generators of listed wastes, or for
owner/operators of treatment, storage,
  10 The renotification and recertification
 requirements would not apply to facilities
 submitting notifications for wastes or media that are
 generated or managed on a one-time basis
or disposal facilities, under 40 CFR 262-
270 (including renotification of
hazardous waste management activity
using EPA form 8700-12).
  The Agency is taking comment on
whether generators should be required
to submit their sampling and analysis
plans and analysis data to the Agency
prior to the effective date of their
exemptions. Pre-submission of the
sampling and analysis plan and the
analysis data could be coupled either
with a  program that would require prior
Agency approval before implementation
of an exemption claim or with a more
self-implementing approach.  Under a
more self-implementing approach, the
sampling and analysis plan would be
required to be sent to the Regional
Administrator, but a generator could
proceed to test according to the
sampling and analysis plan unless it
was otherwise notified by the Regional
Administrator after a set time (for
example, 60 days after Agency receipt of
the plan). After testing, the facility
would  submit the data to the Regional
Administrator. The exemption would
become conditionally effective a  set
time (e.g., 60 days) after Agency receipt
of the data, unless the facility was
otherwise notified by the Regional
Administrator. The Agency is taking
comment on whether this approach
would  discourage generators from
taking  advantage of the exemption, for
example due to the time periods
associated in obtaining the exemption.
The Agency also requests comment on
whether the time periods associated
with this approach would result in a
substantial amount of low risk waste
being disposed of in subtitle  C facilities
that would otherwise be eligible for an
exemption.
  Comments are also requested on
whether generators that have
successfully determined that their
wastes are nonhazardous under the
concentration-based exemption criteria
should be required to notify  off-site
facilities that they are delivering
exempted wastes to those facilities.
Similar notices are required  by the land
disposal restrictions program for the
delivery of certain hazardous wastes to
landfills (e.g., 40 CFR 268.7(a)(2)).
4. When CBEC Exemptions Become
Effective

  The  Agency is proposing that CBEC
exemptions become conditionally
effective for wastes and media upon
receipt of the notification and
certification by the Regional
Administrator (or the authorized State
official). The Agency is also proposing
that facilities submit their notifications

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               Federal Register / Vol.  57, No. 98 / Wednesday,  May 20, 1992  /  Proposed Rules
                                                                     21491
and certifications by certified mail with
return receipt to serve as evidence that
the Agency has received the package.
  The Agency is proposing that any
misrepresentation, erroneous
demonstration, or incomplete adherence
to the above conditions would make the
waste ineligible for the exemption and
the waste would thus be subject to all
Subtitle C management requirements. If
the generator fails to support a CBEC
exemption claim with accurate
analytical data, complete sampling
plans, and signed certifications, and/or
any other procedural requirement, the
Agency will consider the demonstration
invalid and the waste or media to be a
listed hazardous waste.
  The Agency is taking comment on
whether the Regional Administrator
should have the authority to require
additional analysis, such as quantitation
to non-Appendix VII constituent
exemption levels, or to evaluate factors
not considered in the  exemption criteria,
such as aquatic impacts, additive
effects, or food chain  considerations.
The Agency recognizes that broad
exemption criteria such as the CBEC
exemption criteria proposed today may
not, in isolated cases, address all critical
risks. Thus the Agency requests
comment on granting  omnibus authority
to the Regional Administrator (or
authorized State official) to consider
other factors that may cause a CBEC
exemption waste to remain hazardous,
when necessary to protect human health
and the environment. The Agency
requests comment on what the potential
costs of implementing this authority may
be for both the regulated community and
the Agency.
  The Agency is also requesting
comment on how, procedurally, the
Regional Administrator (or authorized
State official) would exercise this
omnibus authority. Under today's
proposal, CBEC exemption claims would
become effective upon notification and
certification of the claim, but data would
not be submitted to the Regional
Administrator for review unless
requested. One way the Regional
Administrator could be able to exercise
the omnibus authority would be to
establish a new variance procedure
similar to that at 40 CFR 260.40 and 41,
which set forth criteria and procedures
for Regional Administrators to impose
additional requirements on persons
accumulating or storing certain
recyclable materials that would
otherwise be exempt from regulation. It
should be noted that these procedures
place the burden on the Regional
Administrator to  demonstrate the
necessity of exercising the variance. The
provisions at 40 CFR 260.40 and 41 set
forth, among other requirements,
procedures for providing facilities with
notice of the basis for the decision and
allow the facility 30 days to respond.
The procedures  also provide an
opportunity for a hearing, and for appeal
of the decision to the Administrator. In
addition to the kind of procedural
requirements required at 40 CFR 260.41,
the Agency could require that Regional
Administrators must either consult with
or obtain prior approval from the
Administrator before  sending a notice to
an exemption claimant. This provision,
however, could conflict with the ability
to appeal a decision to the
Administrator. A final decision to
impose additional requirements through
the omnibus authority would apply
prospectively only. The Agency requests
comment on this and any other
procedural mechanism for the exercise
of omnibus authority by the Regional
Administrator (or authorized State
official).
D. Implementation of the Contingent
Management Exemption

1. Sampling Requirements for
Contingent Management Exemptions
  The Agency is proposing that the
sampling requirements for the
contingent management exemption be
exactly the same as those proposed for
the CBEC exemption. This is proposed
for the contingent management
exemption, regardless of whether it is
combined with the ECHO approach or
the CBEC approach. The Agency
requests comment on whether the
sampling requirements for the CBEC
exemption would still be appropriate if
combined with the ECHO approach.
2. Testing Requirements for Contingent
Management Exemptions
  The Agency is proposing that the
testing requirements for the contingent
management exemption be exactly the
same as those proposed for the CBEC
exemption. This is proposed for the
contingent management exemption,
regardless of whether it is combined
with the ECHO approach or the CBEC
approach. The Agency requests
comment on whether the testing
requirements for the CBEC exemption
would still be appropriate if combined
with the ECHO approach.

3. Notification Requirements for
Contingent Management Exemptions
  To qualify for a contingent
management exemption, under either
the ECHO or the CBEC approach, a
generator would need to submit to the
Regional Administrator a formal
notification of its claim that wastes or
media are nonhazardous as a result of
the specific type of management it will
receive. The notification must include an
accompanying certification that the
information contained in the notification
is complete and accurate. The Agency is
proposing that Agency receipt of the
notification and certification be one of
three conditions that must be met before
wastes media can be managed as non-
hazardous under the contingent
management exemption. The Agency is
also proposing that facilities submit
their notifications and certifications by
certified mail with return receipt to
serve as evidence that the Agency has
received the package.
  Generators continuing to generate or
otherwise manage waste or media for
which they continue to claim a
contingent management exemption
would be required to re-submit the
notification and certification (and retest
the waste or media) with the same
frequency and under the same
conditions as is being proposed for
CBEC exemptions. In addition,
generators would have to submit new
notifications and certifications when the
identity of the disposal facility changes.
If a generator finds that the exempted
waste or media no longer meets the
constituent concentration levels
applicable for the contingent
management exemption, or that the
management standards  at the receiving
facility can no longer be met, the
generator must comply with all
applicable requirements for generators
of listed wastes (including disposal of
waste at a subtitle C facility) and
owner/operators of treatment, storage,
and disposal facilities under 40 CFR
262-270 (including renotification of
hazardous waste management activity
using EPA form 8700-12).
  As with CBEC  exemptions, the
Agency is taking  comment on whether
generators claiming contingent
management exemptions should be
required to submit their sampling and
analysis plans and analysis data to the
Agency prior to the effective date of the
exemption. The Agency is also asking
for comment on whether re-testing and
re-submittal of the notification and
certification should be required more or
less frequently than the schedule
proposed today. The Agency is also
requesting comment on whether re-
testing and re-submittal of the
notification is necessary at all.
4. When Contingent Management
Exemptions Become Effective
  The Agency is  proposing that the
conditional exemption for "contingent

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21492
Federal  Register / Vol. 57, No. 98  /  Wednesday, May 20,  1992 / Proposed  Rules
management" wastes and media would
not become effective until all three
conditions of the exemption have been
met: (1) notification and certification
(similar to what would be required for
first tier exemptions); (2) sampling and
testing (as required for first tier
exemptions); and (3) the waste or media
is managed in accordance with the
management standards established by
this rule.
  Prior to actual disposal, the waste
would be managed as a hazardous
waste according to all applicable RCRA
provisions, including 40 CFR parts 262
(for generators) and 263 (for
transporters). These requirements
include compliance with the waste
manifest provisions of 40 CFR part 262,
subpart B, and the pre-transport
provisions of 40 CFR part 262, subpart C,
which contains, among other provisions,
the provisions governing hazardous
waste accumulation.
  The Agency is proposing this
approach to simplify implementation
and to ensure safe management of the
waste prior to satisfaction of the
conditions for exemption. It is consistent
with an approach under which a waste
only ceases to be a hazardous waste if
its ultimate disposal conforms to the
requirements of this rule. It also
decreases the potential implementation
concerns that may arise if some states
adopt this rule as part of their
authorized programs and others do not.
For example, this approach would
reconcile transportation concerns that
could arise if waste conditionally
exempt in one state is transported
through a state that has not adopted the
contingent management exemption as
part of its authorized program.
  The Agency is taking comment on
alternative approaches for when the
exemption could become conditionally
effective for contingent management
exemption wastes. One alternative
could be to have the conditional
exemption become effective, for wastes
or media being disposed of off-site, upon
placement of the waste in a
transportation vehicle that is designated
to transport the waste to a facility
eligible to handle contingent
management exemption wastes. The
Agency is taking comment on what pre-
transport and transport requirements
would be necessary to ensure that the
waste or media is managed safely prior
to disposal in the qualifying unit.
   Under the above approach, contingent
management exemption wastes or
media being disposed of on-site  would
still not become exempt until placed in a
disposal unit meeting the requirements
established under this rule. Under the
waste accumulation provisions of 40
                        CFR 262.34, a generator may store
                        hazardous waste on-site in tanks or
                        containers for 90 days without becoming
                        a Subtitle C storage facility.
                          Comment is requested on whether,
                        under the "placement in the vehicle"
                        alternative or any other alternative that
                        does not rely on the manifest system,
                        the generator should have a
                        responsibility to inform an off-site
                        receiving facility of the nature of the
                        waste, and whether the generator should
                        also be required to maintain
                        documentation demonstrating that the
                        receiving facility had been informed of
                        the nature of the waste.
                          Under an alternative that would not
                        rely on the current manifest system,
                        comment is requested on whether a
                        generator should have to demonstrate
                        that the contingent management
                        exemption waste was actually received
                        by the off-site destination facility and
                        how that receipt could be demonstrated.
                        EPA also seeks comment on
                        mechanisms to inform EPA (or the
                        authorized State) if a "contingent
                        management" exemption waste does not
                        actually arrive at its designated
                        receiving facility. One approach might
                        be to impose requirements similar to the
                        40 CFR 262.42 exception reporting
                        provisions. The Agency seeks comment
                        on this approach and other options for
                        accomplishing the same goal.
                          Another alternative for satisfying the
                        management requirement in the absence
                        of a manifest could be  to allow, in lieu of
                        a tracking document, a demonstration
                        kept in the facility's records of a
                        contractual agreement with the
                        receiving facility which specifies type of
                        waste or media, volume,  and frequency
                        of deliveries. This document could  also
                        satisfy a requirement that a generator
                        inform a receiving facility of the nature
                        of the waste or media.
                          The Agency specifically requests
                        comment on whether transportation
                        companies transporting contingent
                        management wastes from generators to
                        disposal facilities would require
                        generators to provide documentation
                        and certification independently of
                        federal regulation.
                          The Agency is taking comment on
                        these and any other alternatives for
                        when a contingent management
                        exemption becomes effective. As with
                        CBEC exemptions, the Agency is also
                        taking comment on whether the
                        Regional Administrator should have the
                        authority  to require additional analysis
                        or to evaluate factors not considered in
                        the exemption criteria, and what
                        procedures he should use to do so.
5. Duty of a Generator Claiming a
Contingent Management Exemption to
Manage Waste in Accordance With the
Management Standards of the
Exemption

  Today's proposal requires that, in
order to claim a contingent management
exemption, a generator must manage the
waste or media for which the exemption
is claimed in accordance with the
standards established by this rule. To
satisfy this condition, the generator must
ensure that the waste or media is
actually disposed of at the facility
designated in the notification as the
receiving facility and in units satisfying
the management standards under this
rule. The burden of satisfying all
conditions for the exemption falls on the
generator as the person in the best
position to determine eligibility of a
waste or media for an exemption and to
ensure informed waste management
decisions. The generator is also in a
position to enter into contractual
arrangements with receiving facilities to
allocate responsibility for satisfaction of
the conditions  among themselves. It
should be noted, however, that facilities
disposing of contingent management
exemption wastes could become subtitle
C treatment, storage and disposal
facilities should they dispose of the
wastes in units that do not comply with
the management standards established
for the exemption.
  A contingent management exemption
waste or media will be considered a
hazardous waste until all of the
conditions required for the exemption
have been met. The generator will have
the burden to demonstrate satisfaction
of all of the conditions, including
demonstrating that the waste or media
actually  was disposed of in a unit or
units qualifying for management of
contingent management exemption
wastes.
  Comment is requested on whether the
condition that  generators must manage
second tier exemption waste or media in
the manner set forth in the proposed rule
is sufficient to put a generator on notice
of his obligations and potential
liabilities, and if not, what requirements
or conditions would be necessary to
accomplish that.
   One alternative for how the rule could
provide greater notice on how
generators can comply with the
contingent management exemption
criteria would be to set out in the rule
certain documentation that, while not
necessarily required of generators,
presumptively would be sufficient
evidence of satisfaction of the
management condition. Of course, EPA

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               Federal Register / Vol.  57, No. 98 / Wednesday, May 20, 1992  /  Proposed Rules
                                                                     21493
could rebut this presumption regarding
actual disposal through evidence that
the generator's documentation is
deficient or inaccurate. Generators
might be able to develop rebuttable
evidence of off-site disposal by having a
returned manifest and documentation
that the generator inquired as to the
capability of a facility to dispose of
second-tier candidate waste in
accordance with the management
standards and by having written
documentation from the receiving
facility with sufficient specificity to
establish confirmation of its capacity to
manage the waste in accordance with
the exemption standards. For rebuttable
evidence of actual on-site  disposal, such
documentation could consist of
certifications  by independent, qualified,
registered professional engineers that
units at the facility meet the
management standard and operating
logs indicating the identity of the waste,
the date of generation, the volume
generated, the manner of storage after
generation, and date and volume
disposed of in the qualifying
management unit.
  The Agency is taking comment on
whether establishing certain evidentiary
standards would provide useful
guidance to generators on how to satisfy
the management condition and provide
helpful incentive for generators to
maintain proper documentation of their
exemption claims. Comment is also on
whether the documentation discussed
above, or other documentation, would
be necessary  or sufficient to accomplish
the purpose of demonstrating
compliance with the management
condition.
  Comment is also requested on
whether any additional conditions or
requirements, substantive or procedural,
should be imposed on generators
claiming a contingent management
exemption to  ensure that the contingent
management exemption waste or media
is actually managed in accordance with
the management standards. Comment is
further requested on whether, as
opposed to the proposed approach, the
regulation should provide that
generators claiming a contingent
management exemption are liable only
if they have falsely certified or made an
inaccurate waste determination or
inappropriate selection of offrsite
facilities for disposal.
E. Recordkeeping Requirements for
ECHO, CBEC Exemptions and
Contingent Management Exemptions
  Under the ECHO proposal,  generators
submitting notifications and
certifications  that certain wastestreams
are no longer hazardous wastes under
subtitle C would be required to maintain
copies of the notification and
certification in their facility files for
three years after Agency receipt of the
notification and certification.
  Generators claiming a CBEC or
contingent management exemption
would be required to maintain on-site,
for at least three years after Agency
receipt of the notification and
certification, all documentation required
under this rule including, but not limited
to, the sampling and analysis plan and
test data and the accompanying
notification and certification.
  The Agency requests comment on
alternative record retention periods such
as 5 years, which corresponds  to the
applicable statute of limitations period
at 28 U.S.C. 2462. Owners and  operators
would be required to retain such
documentation in their operating records
until closure of the facility. The
documentation must be available for
review by the Agency or an authorized
State at the time of site inspection. The
three-year generator record retention
period will be automatically extended
during the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional Administrator.
F. Compliance Monitoring and
Enforcement for ECHO, CBEC
Exemptions, and Contingent
Management Exemptions
  If the ECHO approach is chosen, the
Agency may choose to implement a
stepped-up compliance monitoring
program and  enforcement program to
oversee the transition to the new
jurisdictional criteria. While ECHO
would continue to provide generators
with the flexibility currently embodied
in the RCRA regulations for hazardous
waste determinations, the Agency is
concerned that expanding the  hazardous
waste characteristics could impose a
significant new burden on enforcement
resources. The Agency will be including
the impact that ECHO may have on
enforcement resources in its evaluation
of this option.
  The Agency may also choose to step
up compliance monitoring and
enforcement of the CBEC and contingent
management exemptions, due  to their
self-implementing nature. The
compliance monitoring and enforcement
program outlined in this notice focuses
on the CBEC  and contingent
management exemptions because these
would be new requirements in the
subtitle C system. The program is
designed to ensure that the exemptions
are being applied in an appropriate
manner and that only those wastes and
media that are truly nonhazardous are
relieved from subtitle C management
requirements. Compliance monitoring
and enforcement of the ECHO program
would be carried out under existing
authorities and conditions with which
the regulated community should already
be familiar.
  Generators must comply with all of
the previously described conditions of
the exemptions to qualify for the
exemptions. A generator must manage
the waste or media as required under
subtitle C during periods when any of
those conditions are not met. Generators
that fail to comply with the applicable
conditions for a CBEC or contingent
management exemption risk
enforcement action for violations of
subtitle C requirements, including
administrative, civil and criminal
penalties.

1. Compliance Monitoring
  The Agency is proposing that
compliance monitoring of the ECHO
approach, the CBEC exemption, and the
contingent management exemption
occur through EPA or State oversight,
primarily through review of notifications
and inspections.
  The primary means of oversight likely
will be inspections. RCRA section 3007
requires that the Agency and States
conduct inspections of TSDFs on a
biennial basis. In addition, as a matter
of policy, the Agency has increased the
number of inspections directed at
generators subject to land disposal
restrictions requirements. Inspectors
will review the notifications for
completeness and use those
notifications to assist in targeting
facilities for inspection.
  In addition, EPA and States may do
confirmatory sampling and analysis to
determine whether a waste or media
meets the exemption levels. Inspections
of off-site laboratories may also be
performed.
2. Enforcement
  The CBEC and contingent
management exemption criteria
proposed today would create two
possible exits from the subtitle C system
only so long as the conditions
established for one or the other exit are
met. Failure to comply with any of the
conditions for the exemptions would
mean that the wastes would not be
exempt from subtitle C, and the
generator could be subject to immediate
enforcement action for violation of
subtitle C requirements.
  The Agency has the authority under
this regulation or RCRA section 3007 to
require submission of information on the
management of exempted wastes or

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21494	Federal Register  /  Vol.  57, No. 98 / Wednesday, May 20, 1992  /  Proposed Rules
media in a situation where the Agency
suspects the generator has not
satisfactorily determined whether a
waste or contaminated materials meet
the appropriate exemption levels.
Alternatively, the Agency may require
improved analysis using an
administrative or civil action under
section 3008(a). The Agency has the
authority, under section 3007 of RCRA,
to require submission of information and
to conduct inspections of facilities
which EPA has reason to believe may be
managing a hazardous waste. Under this
authority, the Agency would be able to
inspect a non-subtitle C facility
receiving contingent management
exemption waste to determine whether
or not the management standards were
being met. Failure to manage the
contingent management exemption
waste in accordance with the required
management standards would vitiate
the exemption and the conditionally
exempt waste would be subject to full
subtitle C regulation. The receiving
facility, therefore, would become a
subtitle C treatment, storage, and/or
disposal facility  requiring a permit.
   In an enforcement action, compliance
with the terms and conditions of one of
the exemptions may be raised as an
affirmative defense, but the burden will
be on the defendant to establish
eligibility for the exemption and
compliance with the conditions
necessary to maintain the exemption.
See 50 FR 642 (Jan. 4,1985) for a
discussion of EPA's authority to place
 such burdens  on defendants.
   Generators  may not use either the
 CBEC or the contingent management
 exemptions as a means of avoiding
 enforcement actions. For example, a
 generator who is the subject of an
 Agency enforcement action cannot
 claim that  the waste or media in
 question is exempted from subtitle C
 under a CBEC exemption unless a valid
 exemption notification for that waste or
 media has been previously submitted to
 the Agency and the required
 documentation to support the claim
 exists at the facility and satisfies the
 requirements of the regulations. Neither
 the CBEC nor the contingent
 management  exemption can be used in a
 retroactive fashion to avoid enforcement
 actions. Similarly, these exemptions
 cannot be used  as a legal defense prior
 to the effective date of promulgation of
 this rule.
 G. Exports of Wastes Eligible for CBEC
 or Contingent Management Exemptions
    Under today's proposal, contingent
 management exemption wastes would
 remain hazardous until actually
 disposed of in accordance with the
management conditions. The waste
would thus remain subject to all
applicable requirements of 40 CFR parts
262 and 263, including export
requirements. Comment is requested on
whether, if the point at which contingent
management exemption wastes are no
longer hazardous is changed to some
point before actual management in
accordance with the conditions,
contingent management exemption
wastes should still remain subject to the
export  requirements of 40 CFR part 262.
Comment is requested on whether these
export  requirements are necessary to
ensure that the contingent management
exemption waste will be properly
managed in the  receiving country.
  Under today's proposal, wastes
qualifying for a  CBEC exemption would
not be  subject to the export
requirements of 40 CFR part 262.
Comment is requested on whether
exports requirements should be imposed
on CBEC exemption wastes in order to
ensure EPA's ability to comply with any
current or future international
obligations with regard to the export of
hazardous and  solid waste (for example,
the Basel Convention on the Control of
Transboundary Movements of
Hazardous Wastes and Their Disposal).
H. Public Participation in CBEC or
Contingent Management Exemptions
  To provide the public with access to
information, the Agency is proposing
that the first time a generator provides
the Agency with notification of an
exemption claim either for CBEC  or
contingent management wastes, he will
be required to publish a notice of the
exemption claim in a major local
newspaper of general circulation. The
notice should include the name and
address of the facility, the description of
the waste (as contained in the
notification), the location at which
further information on the exemption
claim may be reviewed, and the period
 of time the information will be available
 at that location for review. The
generator will be required to provide for
 public review copies of the notification
 submitted to the Agency, the sampling
 and analysis plan, and the testing data.
 The information can be made available
 to the public at a location or near the
 facility, and must remain available for
 sixty days after the date notification
 appeared in the local newspaper. The
 Agency requests comment on this
 proposed approach.
   The Agency  is also requesting
 comment on additional  approaches to
 public participation. The current  RCRA
 regulations do  not require generators of
 hazardous waste to notify their
 community, rather these generators are
required to register with the Agency and
to receive a RCRA identification
number. Therefore, some parties have
suggested that the Agency should not
require any public participation.
Conversely, other parties have
suggested public participation
requirements including a formal
rulemaking in the Federal Register
similar to the requirements of the
delisting program. Although the Agency
is proposing a mid-point between these
two approaches, comment is requested
on alternatives.
  The Agency is taking comment on
whether public notice should be
required for resubmittals of the
notification. The Agency is also taking
comment on whether public access to
the date should be required for the
duration of the claim, and not just for a
sixty day period or other limited time
period. In addition, the Agency asks for
comments on whether the public should
have the right during the public review
period (or during some specified time) to
request a hearing on the  claim, and what
the implications of such a right be (such
as delay or uncertainty in the exercise of
an exemption, or substantial  cost).

XII.  Other Changes to 40 CFR Part 261

  As a result of toxicity studies and
subsequent health-based level
development efforts associated with
today's proposal, the Agency is
proposing to add a number of
constituents to appendix VIII of part 261.
As noted below, many of these
constituents are currently listed in 40
CFR 261.33 as commercial chemical
products that typically exhibit  a
characteristic. The Agency has
determined that these constituents are
toxic and/or carcinogenic and has
 developed health-based levels for each
 of them based on available information.
Therefore, the Agency believes that
 these compounds should be added to the
 list  of hazardous constituents:

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               Federal  Register / Vol.  57,  No. 98  /  Wednesday,  May 20, 1992 / Proposed  Rules
                                                                       21495
Acenaphthene
Acetaldehyde
  (U001)
Acetone (U002)
Acrylic acid (U008)
Benzo(k)fluoranthene
Benzyl alcohol
n-Butyl alcohol
  (U031)
Cumene (U055)
Dibromo-
  chloromethane
Cyclohexanone
  (U057)
Di-n-butyl phthalate
  (U069)
Dimethylamme
  (U092)
1,4-Dioxane (U108)
Ethyl acetate (U112)
Ethyl benzene
Ethyl ether (U117)
Furan (U124)
Isophorone
Methanol (U154)
Methyl isobutyl
  ketone (U161)
Phenanthrene
Styrene
Vanadium (P119-
  vanadic acid,
  ammonium salt
  and P120-
  vanadium
  pentoxide)
Xylene (U239)
Zinc

The Agency requests comments on these
proposed modifications to part 261 of
the CFR.
  Certain of the constituents listed
above, when used as solvents, are
currently regulated by the F003 solvent
listing. F003 is currently listed solely for
ignitability. The Agency is considering
the need  to publish a separate
rulemaking to modify the listing basis
for F003 (as well as the U-listed
commercial chemical products listed
above) to also include toxicity. The
Agency requests comment of the need
for this change.

XIII. Relationship to Other RCRA
Regulatory Programs

  Today's proposed exemption levels,
when promulgated, will define where
RCRA subtitle C jurisdiction ceases and,
under ECHO, where it begins. As
discussed below, these levels also may
affect a number of RCRA regulatory
programs such as delisting (40 CFR
260.22), land disposal restrictions (40
CFR part 268), closure (40 CFR part 264
subpart G), and corrective action (40
CFR part 264 subparts F, and S, when
promulgated). The lower tier exemption
levels, discussed under the contingent
management approach, may represent a
base-line level of concern for listed
wastes, providing a unified basis for
RCRA programs, such as  closure and
corrective action, which also regulate
and remediate dilute wastes and
contaminated media.
  The CBEC approach proposed today
would be promulgated only in the
context of a listing exemption process
and represent the conservative levels
necessary for broad (i.e., waste-specific)
exemptions. However, permit writers
reviewing and writing closure and
corrective action plans may consider
waste- or site-specific factors (e.g., site
hydrogeology, immobility) and specific
statutory mandates to set clean-up
levels for specific constituents that
differ from the exemption levels. Higher
levels also may pose minimal risk to
human health and the environment.

A. Characteristics of a Hazardous
Waste
  The CBEC approach will establish
exemption concentrations for 200
hazardous constituents in eligible listed
waste or media or material containing
those listed wastes. If the concentration
of each of these hazardous constituents
is below a baseline exemption level, the
waste would  not be considered the
listed hazardous waste. However, the
generator must still determine whether
the waste exhibits any characteristics of
a hazardous waste as specified in 40
CFR 261.21 through 261.24.
  The ECHO approach will modify the
existing toxicity characteristics (TC) by
broadening the number of constituents
included in the characteristic.
Ultimately, constituent specific  DAFs
will be developed all TC constituents.
Eventually, this approach would largely
replace the current approach to
hazardous wastes identification based
on a combination of waste listings and
the mixture and derived-from rules.
B. Requirements for Treatment, Storage,
and Disposal Facilities and Interim
Status Facilities
  In order to  implement the changes
proposed today, changes may be needed
in TSD waste analysis plans. Such
changes will most likely include the
addition of the appropriate analysis
methods and changes that may  be
required in the frequency of testing.
  Permitted facilities, in unauthorired
States, who elect  to employ the
exemption procedures and who
subsequently prepare changes to their
waste analysis plans should, following
promulgation of this rule, submit a Class
I permit modification to EPA.

C. Hazardous Waste Listings

  The Agency evaluated the likelihood
that untreated hazardous wastes would
be able to meet the exemption criteria in
an "pure" state (e.g., untreated and
unmixed) and determined  that it is
extremely unlikely that the constituent
concentrations in untreated hazardous
wastes would be below the BDAT
standards or today's proposed
exemption levels. Specifically, the
Agency's hazardous waste
charactization data indicate that the
concentrations of toxicants of concern
in untreated listed  wastes are typically
present at levels many times higher than
the BDAT and health-based levels.
Thus, if the final rule is based on levels
of 100 times health-based numbers or
less and if eligibility is limited to certain
wastes known to be highly toxic through
other pathways, but highly immobile in
an aqueous leaching medium, such as
dioxins, then  this rulemaking will not
imply significant change in how the
Agency does  future waste listings.
However, if the levels are significantly
higher it could have a major effect on
future listings.
D. Delisting

  Delisting is a  rulemaking process
where the Agency  reviews and
evaluates specific requests for
regulatory relief. Specifically, a
petitioner submits  a demonstration
which supports the petitioner's claim
that a specific listed hazardous waste
does not meet the criteria for which it
was listed, and  that the waste is not
hazardous for any  other reason. If the
Agency agrees with the petitioner that
the petitioned waste is not hazardous,
EPA publishes a proposed exclusion in
the Federal Register and solicits public
comment prior to the publication of a
final exclusion. The Agency's evaluation
considers the mobility of the specific
constituents of concern for each
petitioned waste. The basic aspects of
determining the levels requiring no
regulation under subtitle C in delisting
and today's proposed exemptions  are
the same. Both programs generally use
the same health-based data for
comparison at the hypothetical
compliance (exposure) point. Facilities
must conduct similar levels of waste
characterization for both programs
particularly with respect to the number
of samples required). The purpose of
today's proposed rule is to establish a
self-implementing,  generic rule where
the facility, rather than EPA, determines
whether a listed waste must continue to
be managed as a subtitle C hazardous
waste.
  Today's proposed exemption and
delisting criteria differ in the multiplier
used. In delisting, the  Agency typically
predicts the concentration of specific
constituents at a compliance point (such
as a drinking  water well) to determine if
the waste is likely  to pose a threat to
human health and  the environment. This

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21496         Federal Register  /  Vol. 57.  No. 98  /  Wednesday, May 20,  1992 / Proposed  Rules
prediction incorporates fate and
transport modeling which accounts for
some degree of dilution and attenuation
due to toxicant migration to the
exposure point. The CBEC contingent
management proposal in today's notice
would account for dilution or
attenuation ten to one hundred times
greater than the health-based numbers;
the multiplier of ten is less than the most
conservative value used in delisting
evaluations and the multiplier of one
hundred is greater than any delistings
granted to date. However, in delisting
evaluations, in addition to predicting
hypothetical compliance-point
concentrations, the Agency also
evaluates existing ground-water
monitoring data, where applicable.
These data allow the Agency to
evaluate  the actual impact of the waste
on the environment as currently
managed. (Monitoring data are
evaluated only for wastes that are
managed in on-site or dedicated off-site
land disposal units.)
  Delisting and today's proposed
exemptions for certain wastes will differ
in analytical requirements. Delisting
demonstrations require that the
petitioner analyze the waste for those
hazardous constituents that are
reasonably expected to be present in the
waste, with Agency oversight to ensure
that the reduced list of analytes for
delisting  is truly representative of the
petitioned waste. Today's proposed
exemption demonstrations require
analysis for all of the exemption
constituents for the initial testing
because there is no oversight provided
by the Agency to ensure that the proper
subset of constituents is examined. The
Agency is soliciting comments on means
of reducing testing requirements once
the initial demonstration is made
successfully. Thus, the delisting
demonstration provides a means to
narrow the necessary initial sampling to
fewer contaminants than is proposed for
today's exemption.
  As mentioned above, the delisting
exemption process is a rule-making
activity that requires that the Agency
propose each decision, solicit and
consider public comments on each
proposal, and publish all final decisions.
Final exclusions are then listed in 40
CFR part 261, appendix IX.
  Delisting petitions for wastes that
contain toxic constituents which exceed
the exemption levels will continue to be
accepted and reviewed by the Agency.
In addition, the Agency will accept
petitions for wastes which are ineligible
for today's proposed exemption because
of analytical constraints. With the
exception of a potentially reduced
petition review burden, the Agency does
not anticipate any changes in the
current review of delisting petitions as a
result of the implementation of today's
proposed exemption.
E. Closure
  Under today's proposed rule, a unit
managing wastes that are shown to be
below exemption levels would continue
to be a regulated hazardous waste
management unit subject to the
requirements of parts 264  and  265,
including the closure requirements until
it completed clean closure or unless the
waste and unit were delisted. A unit
receiving only waste that  is shown to be
below exemption levels would no longer
be receiving hazardous waste  upon the
effective date of the certification. Such a
unit would thus normally become
subject to subtitle C closure
requirements; however, EPA believes
that "closure" requirements could allow
such units to continue to operate as
nonhazardous units.
  In cases where a unit receipt of
hazardous waste due to certified
compliance with the exemption,  the
closure requirements of 40 CFR
264.113(b) and 265.113(b),  which  require
an owner or operator to complete
closure of a hazardous waste
management unit within 180 days after
receiving the final volume of hazardous
waste, would require closure of the unit.
Thus, the owner or operator would have
to close the unit in order to continue
operation, including receipt of the
exempt waste. The Agency believes
that, in many cases, hazardous waste
management units that continue  to
receive only exempt wastes would be
able to satisfy the closure requirements
of parts 264 and 265 while operating the
unit and without removing the waste
from the unit. However, in the case of
surface impoundments, clean closure of
the unit would be required. Where this
is not possible, filing of the certification
would trigger the requirement  to close
with waste in place, thus require the
unit to cease operation or to follow the
delay-of-closure alternative of §  264.113
or 265.113.
  In the case of tanks, 40  CFR 264.197
and 265.197 require the owner or
operator to remove or decontaminate all
waste residues, contaminated
containment system components,
contaminated soils, and structures and
equipment in order to achieve clean
closure of the tank unit. Under today's
proposal, an owner or operator might
demonstrate removal of hazardous
waste residues from the tank by
demonstrating that all waste in the tank
is below exemption levels, without
removing the waste from the tank. In
cases where the owner or operator
could not demonstrate that all wastes in
the tank were below exemption levels,
he or she would have to remove the
hazardous waste in order to achieve
closure of the unit. In some cases, the
facility owner or operator may be able
to demonstrate that a tank no longer
managed hazardous waste (because the
waste was below exemption levels), but
did not achieve clean closure because of
soil and perhaps groundwater
contamination. In this case, the facility
owner or operator would have to
remove the contamination to clean
closure levels, or close the area as a
landfill. During this period, the tank
could be used to  manage nonhazardous
wastes,  as long as this activity did not
interfere with cleanup or control of the
contaminated areas.
  In the case of surface impoundments,
if the owner or operator can
demonstrate that the wastes in the
impoundment are below exemption
levels, then the owner or operator may
be able to achieve clean closure of the
unit without removing the wastes from
the impoundment, providing that the
requirements of 40 CFR 264.228 or
265.228 and the general closure
requirements of part 264 or 265 Subpart
G are met. In this case, use of the unit
could continue uninterrupted. In many
cases, however, it is likely that the
owner or operator will be unable to
make that demonstration. In these cases,
the facility owners would have two
options if they wished to continue using
their units: (1) they could cease
receiving waste and close the unit by
removal in accordance with part 264  or
265, or (2) they could seek to delay
closure under the provisions of 40 CFR
264.113 (d) and (e) or 40 CFR 265 (d) and
(e). In cases where clean closure of the
unit cannot be achieved, and the owner
or operator cannot satisfy the
requirements of 40 CFR 264.113 (d) and
(e) and 265.113 (d) and (e) to delay
closure, filing the CBEC certification
would trigger the closure requirements
and the owner or operator would have
to close the unit as a landfill and stop
operation of the unit.

F. Subtitle C Corrective Action

  Today's proposed rule, when
promulgated, may have an impact on the
implementation of RCRA subtitle C
Corrective Actions for regulated units
under 40 CFR part 264 subpart F and  for
solid waste management units under
§ 3004(u). As proposed, CBEC tier 1
levels are the lowest levels of regulatory
concern and thus will become
presumptive cleanup  levels for
corrective action and clean closure. The

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               Federal Register  /  Vol.  57,  No. 98 / Wednesday, May  20. 1992 / Proposed Rules        21497
Agency has used identical health-based
levels to develop the exemption levels
and the "action levels" proposed on July
27,1990 (see 55 FR 30798) as part of the
RCRA corrective action program. Actual
clean-up levels, however, may differ
from both the action levels and
exemption levels due to the
consideration of waste- and site-specific
factors, and other data gathered during
the investigatory and evaluative phases
of the corrective action process (e. g.,
the RCRA Facility Investigation and the
Corrective Measures Study).
G. Land Disposal Restriction Program
  An important factor in determining
the impact of today's proposal is the
relationship between the CBEC and
ECHO levels proposed today and the
RCRA land disposal restriction
standards.
  Section 3004(m) of RCRA requires that
hazardous wastes be treated to a level
at which "short-term and long-term
threats to human health or the
environment are  minimized" prior to
land disposal. In the "Third  Third" land
disposal restriction rulemaking, 55  FR
22520 (June 1,1990), the Agency
explained in detail its interpretation that
the statute leaves to EPA the
determination of whether the LDR
treatment standards attach at the point
of waste generation or at the point of
disposal. Id. at 22651-22563.
  In the Third rule, EPA explained why
the Agency believed that the point of
generation approach would  generally
better meet the goals and  purposes of
the LDR program than a point of
disposal approach. Id. at 22652.
However, EPA also explained that the
point of disposal approach is
appropriate in certain circumstances,
such as when applying LDRs at the point
of generation would seriously disrupt
the implementation of other
environmental regulatory programs. Id.
at 22653. One of the policy rationales for
exercising its discretion under the
statute to generally require full BOAT
treatment for wastes that are hazardous
at the point of generation  was the
inadequacy of existing hazardous waste
identification programs; specifically
wastes identified as hazardous for a
particular characteristic might still be
toxic, due to the  presence of non-TC
constituents, even when that  ,
characteristic is removed. See id. at
22652. Such waste thus would not meet
the Section 3004-(m) "minimize threat"
land disposal standard even after it is
no longer "hazardous".
  The decision concerning which LDR
approach to utilize with respect to the
low  hazard waste subject to today's
proposal may significantly affect the
practical impact of the options proposed
today. For example, a waste which is
hazardous when generated but treated
to CBEC or ECHO levels may still, under
a point of generation approach, require
treatment to any more stringent LDR
level prior to land disposal. Thus, many
CBEC or ECHO wastes may require LDR
treatment prior to disposal in a Subtitle
D unit.
  However,  to the extent that the CBEC
or ECHO proposal here provide a more
comprehensive way of determining the
hazards presented by hazardous wastes,
requiring treatment beyond the levels at
which a waste is hazardous may no
longer be necessary to "minimize
threats." For that reason, EPA is taking
comment on some aspects of adopting
the point of disposal as the point at
which LDR standards attach as one
alternative way of addressing the
interaction between the CBEC and
ECHO approaches proposed today and
the RCRA land disposal restrictions. For
example, the Agency is considering this
alternative in addressing the problems
raised by the cleanup of contaminated
media (see further discussion in Section
III. E.) In addition, under the ECHO
approach, EPA is requesting comment
on this alternative for  addressing the
issues raised by the land disposal
restrictions'  relationship to
characteristic wastes.  EPA requests
comment on this  issue.
  Section 3004(m) of RCRA provides
that treatment standards for hazardous
waste prior to land disposal cannot be
below levels at which "short-term and
long-term threats to human health and
the environment are minimized." See
also HWTC v. EPA (HWTC III), 886 F.2d
355, 362 (D.C. Cir. 1989),  cert, denied 111
S.Ct. 139 (1990). To date, the Agency has
been unable to define  risk-based levels
which meet  the Section 3004(m]
standard. See 55 Fed. Reg. 6640
(February 26, 1990. EPA expects to
address the  issue of the relationship
between the BOAT standards and the
Section 3004(m) "minimize threat"
standard in more detail in the upcoming
LDR "phase two" proposal, to be
published this summer. However, EPA
also recognizes that the levels proposed
in this rule may also be related to the
"minimize threat" standard. If the CBEC
or ECHO levels are also the "minimize
threat" standard, then wastes that are
treated to levels below the exemption
level would also have met their
obligation under the LDR program and
could accordingly be land disposed
without treatment. The Agency asks for
comment on whether the levels
proposed in this rule should be the "
minimize threat" level that bounds the
LDR treatment standards.
H. RCRA Emission Standards

  Today's proposed rule, when
promulgated, may have an impact on the
effectiveness of two other RCRA rules
developed by the Agency under HSWA
authority. Section 3004(n) of HSWA
directed the Agency to promulgate
regulations controlling air emissions
from hazardous waste TSDFs "as
necessary to protect human health and
the environment." Subsequent Agency
analysis demonstrated that air
emissions from TSDFs do pose
substantial risk in the absence of
controls,  and that controls were
therefore required under the HSWA
mandate. The Agency is fulfilling this
mandate in phases; a rule was
promulgated in 1990 covering certain
sources at TSDFs (55 FR 25454, June 21,
1990), and the remaining sources were
addressed in a second rule proposed in
1991 (56 FR 33490, July 22, 1991).
Together, these rules would reduce the
risk from air emissions from the vast
majority of these facilities to well within
the risk range of other RCRA standards.
After more thorough analysis, the
Agency may issue a third phase of these
regulations to address any residual risk.
The emission reductions achieved by
these rules would also significantly
reduce the formation of ozone, which
has adverse effects on human health
and the environment.
   Today's rule could affect the TSDF air
emissions regulations in the following
way. The TSDF rules were designed to
prevent volatilization of hazardous
organics  as they move through storage
and treatment, keeping the organics in
the waste until it ultimately undergoes
BOAT treatment, which is assumed to
remove any significant risk from
exposure via the air medium. If, under
any of the exemptions proposed today,
waste leaves the system without BOAT
treatment, that waste must be assumed
to pose a potential air risk until further
analysis shows otherwise. If significant
risk exists, it may be necessary to
develop air-based exemption criteria to
supplement those suggested in today's
proposal. Such criteria could entail
additional waste testing. The Agency
specifically requests comment on this
issue, and on ways to address it.

XIV. CERCLA Program

   All listed hazardous wastes are listed
as hazardous substances under section
101(14)(C) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended. Under
section 103(a) of CERCLA, notification
must be made to the Federal government

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21498         Federal  Register / Vol. 57, No. 98  /  Wednesday, May 20, 1992 / Proposed Rules
of a release of any CERCLA hazardous
substance in an amount equal to or
greater than the reportable quantity
(RQ] assigned to that substance within a
24 hour period. (See 40 CFR part 302 for
a list of CERCLA hazardous substances
and their RQs.) Once a specific waste
from a particular facility has been
shown to meet the exemption criterion
in this rule, the waste is no longer a
listed hazardous waste and therefore no
longer a hazardous substance by virtue
of its hazardous waste listing,  and  thus
notification under CERCLA of a release
of the exempted waste may not be
necessary. In this situation, CERCLA
notification of releases of the waste
would only be required if the waste or
any of the constituents of the waste are
CERCLA hazardous substances by
virtue of section 101(14)(A), (B), (D), (E),
or (F) of CERCLA or 40 CFR 302.4(b),
and are released in amounts greater
than or equal to their RQs. The Agency
requests comment on this approach.
  The Agency believes that exemption
levels also may be applicable to the
CERCLA program where it has been
documented that RCRA listed  hazardous
waste has been disposed of at the site.
Section 121(d) of CERCLA, as amended
by the Superfund Amendments and
Reauthorization Act (SARA) of 1986,
requires that CERCLA actions comply
with,  or justify a waver of, applicable or
relevant and appropriate requirements
(ARARs) under federal and state
environmental laws. When RCRA
requirements are identified as ARARs at
CERCLA sites because of the presence
of RCRA listed hazardous wastes at the
site, the Agency believes that the CBEC/
ECHO exemption levels  will become the
preliminary remediation goals for listed
wastes, depending on site-specific
factors and other criteria specific to the
CERCLA program. In addition, all of the
options would determine the legal
applicability of federal RCRA
managements requirements to
remediation wastes generated at
Superfund sites.
  At sites undergoing CERCLA remedial
activities where no listed hazardous
wastes have been identified, the Agency
will generally use a site-specific risk
assessment for all chemicals for which
there are no ARARs.  In some cases,
these health-based clean-up levels will
be higher than the exemption levels,
based on a reasonably conservative
exposure  scenario which does not
include leachate ingestion. In other
cases, the CERCLA health-based clean-
up levels will be lower than exemption
levels when additive effects are
considered or when specialized
analytical techniques are required in
order to lower quantitation limits. The
CERCLA health-based clean-up levels
may also be different than exemption
levels based on the consideration of
site-specific factors.

XV. State Authority

A. Applicability of Rules 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
3008, 7003, and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
  Prior to the Hazardous and Solid
Waste Amendments (HSWA) of 1984, a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State
and EPA could not issue permits for any
facility in the State that the State was
authorized to permit. When new, more
stringent Federal requirements were
promulgated or enacted, the State was
obliged  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.
  In contrast, under section 3006(g)  of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is
directed to implement HSWA
requirements and prohibitions in an
authorized State, 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, HSWA applies in
authorized States in the interim.

B. Effect of State Authorizations
  Today's proposal, if finalized, will
promulgate regulations that are not
effective under HSWA in authorized
States. Thus, the exemption will be
applicable only in those States that do
not have final authorization.
  Authorized States are only required to
modify their programs when EPA
promulgates Federal regulations that are
more stringent or broader in scope than
the authorized State regulations. For
those changes that are less stringent or
reduce the scope of the Federal program,
States are not required to modify their
programs. This is a result of section 3009
of RCRA, which allows States to impose
more stringent regulations than the
Federal program. Today's proposal for
CBEC exemptions is considered to be
less stringent than, or a reduction in the
scope of, the existing Federal
regulations because that portion of
today's proposal would exempt certain
activities now within the purview of
RCRA subtitle C. Therefore, authorized
States are not required to modify their
programs to adopt regulations consistent
with and equivalent to the CBEC
rulemaking. However, to the extent that
the ECHO option brings new wastes
into hazardous waste regulation; those
aspects of this rulemaking would, if
finalized, need to be adopted by
authorized States.
  Even though States are not required to
adopt most options in today's HWIR
proposal, EPA strongly encourages
States to do so as quickly as possible.
As already explained in this preamble,
today's proposal will reduce over-
regulation of dilute wastes and
contaminated media, will facilitate
evaluating remediation alternatives for
CERCLA clean-ups and the RCRA
Corrective Action Program, will provide
an alternative to delisting, and will
speed research and development for
treatment alternatives to land disposal
and waste minimization, recycling, and
reuse. States are therefore urged to
consider the adoption of all aspects of
today's HWIR proposal (when
promulgated); EPA will expedite review
of authorized State program revision
applications.
  States that submit official applications
for final authorization less than 12
months after the effective date of these
regulations are not required to include
standards equivalent to these
regulations in their application.
However, the State must modify its
program by the deadline set forth in
§ 271.21(e). States that submit official
applications for final authorization 12
months after the effective date of these
regulations must include standards
equivalent to these regulations in their
application. The requirements a state
must meet when submitting its final
authorization application are set forth in
40 CFR 271.3.

XVI. Economic Assessment

A. Background

  The Agency has conducted a
preliminary economic assessment (EA)
in conjunction with the development of
today's proposed rule. This analysis
quantifies cost savings potentially

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                                                                     21499
associated with the four primary options
presented under both prospective of this
proposal. These are: the health based
approach, the technology approach, the
contingent management approach, and
the Expanded Characteristic Option
(ECHO).
  The analysis conducted for this Notice
of Proposed Rulemaking is to be
considered preliminary. A
comprehensive final Regulatory Impact
Analysis (R1A) will be developed in
conjunction with the Final Rule. This
RIA will be consistent with procedures
described in appendix V of the
Regulatory Program of the United States
Government.
  Results from the Agency's preliminary
analysis indicate that the proposed rule
would not cause major increases in
prices or costs or have other significant
adverse effects. EPA expects that the
proposed regulations, as part of the
Agency's RCRA reform initiative, could
reduce costs to the economy in excess of
$100 million per year, particularly
hazardous waste storage, treatment,
and/or disposal costs.
  The complete Economic Assessment
document, Preliminary Economic
Assessment of the Hazardous Waste
Identification Rule, is available in the
docket established for this proposed
rule. The following is a summary of the
methodology used in performing the EA
and the results of the analysis.

B. Potentially Affected Wastes
  The proposed rulemaking would affect
two broad categories of wastes, listed
hazardous wastes and media
contaminated with listed hazardous
waste. Listed hazardous wastes are
deemed hazardous by virtue of being
listed by the Agency. Contaminated
media commonly refers to all soil, debris
and other materials which have been
contaminated with a listed waste.
  Two primary categories of listed
hazardous wastes will be affected by
this rule, wastes as generated and
residuals. Wastes as generated refer to
the composition of wastes as they are
originally released, prior to any
treatment. Residuals refer to any residue
which may remain after BDAT
treatments as identified under the LDR
program. In the category of
contaminated media, this analysis focus
only on contaminated soils.
  The EA estimates the proposed rule's
cost savings separately for waste  and
media because different data sources
and slightly different regulatory options
apply to wastes and media.
1. Process Waste
  The population of hazardous wastes
potentially affected by today's proposal
was estimated using data from EPA's
1986 National Survey of Hazardous
Waste Generators. This Survey was
used because it was the only readily
available comprehensive data source
found to link volume estimates to
constituent concentrations, by waste
stream. The Agency recognizes the
limitations and problems potentially
associated with the use of a single data
source that is more than five years old.
The Agency plans to compare, adjust
and update these data combining
information supplied in comments and
various alternative data sources,
throughout development of the final rule
making process.
  The 1986 Survey indicates that
approximately 718 million tons of RCRA
hazardous waste were generated in
1986. As much as 60 percent of this total
may be managed exclusively under the
Clean Water Act. Of the total,
approximately 344  million tons are
ineligible for potential exemption
because they are characteristic wastes
and, if treated such that the
characteristic is removed, would be
unregulated, thus unaffected. Another
224 million tons are hazardous wastes
that are both characteristic and listed.
They may be eligible, if the
characteristic is removed. The remaining
150 million tons are listed wastes, which
are also eligible under this proposal. Six
of the 150 million tons were excluded
from analysis, however, because they
are either discharged without treatment
to publicly owned treatment works
(POTWs) or waterways, and therefore
unlikely to generate savings, or are
contaminated soil,  which is  addressed
separately. Of the remaining 144 million
tons of listed wastes, 120 million tons
are wastewaters and 24 million tons are
non-waste waters.
  The Agency determined which of the
eligible hazardous wastes would be
exempt under alternative regulatory
options by using three types of data
inputs. (1) Waste concentration data
were identified from the 1986 Generator
Survey for individual listed waste
streams. These streams constituted 84
percent of the listed wastewater
volumes and about 13 percent of listed
non-wastewater volumes. The results
for these waste streams were
extrapolated to estimate the impacts on
listed waste streams for which
constituent concentration data were not
available and on wastes that are
initially both listed and characteristic
wastes. (2) This analysis used the
health-based levels (e.g., MCLs, RfDs,
and RSDs), and criteria discussed in
section VI of the Preamble to determine
the volumes of waste affected under the
corresponding regulatory options. (3)
Information from the land disposal
restrictions program was used to
determine proposal standards under
options based on BDATs, to identify the
treatment methods that would be
required for wastes remaining subject to
subtitle C regulation, and to determine
the contaminant concentrations
achievable by available treatment
technologies.

2. Contaminated Media
  The universe of contaminated media
potentially affected by this proposed
rule includes contaminated soil and
contaminated ground water. This
analysis focuses on contaminated soil
only. Contaminated ground water is not
analyzed for two reasons. First, data
characterizing the volume of
contaminated ground water are
incomplete and contain a great deal of
uncertainty. Second, the cost savings for
ground water are likely to be relatively
small. Contaminated ground water is
often managed under Clean Water Act
provisions by being discharged to
POTWs or under National Pollutant
Discharge Elimination System permits
and therefore may not be significantly
affected by this proposal.
  Contaminated media  subject to
subtitle C are normally generated by
remediation activities. For this analysis,
the Agency focuses on five sources of
contaminated media: CERCLA
(Superfund)  actions, RCRA corrective
actions, RCRA closures, state Superfund
cleanups, and voluntary cleanups.
  For each of these sources of
contaminated media, upper- and lower-
bound  estimates are developed for (1)
the number of sites with contaminated
soil; (2) the quantity of contaminated
soil to be excavated at these sites; and
(3) the  pace of excavation. A range of
estimates is used because of the
substantial uncertainty  associated with
contaminated soil generation rates.
Based on this approach, it is determined
that approximately 3 to 11 million tons
of contaminated soil will be generated
per year.
  Contaminated soil may be affected by
this proposal if, (1) it is contaminated
with listed wastes and (2) constituents
in the soil are below applicable

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Federal  Register / Vol. 57, No.  98 / Wednesday, May  20, 1992 / Proposed Rules
concentration levels, as identified in the
various options. The proportion of
excavated soil that contains only listed
wastes was estimated using data
submitted to EPA by three hazardous
waste landfills in 1990 and 1991. These
data suggest that from 28 to 61 percent
of contaminated soil subject to
regulation as hazardous waste, contains
listed waste. This estimate, however, is
highly uncertain because  of the
difficulties of identifying listed waste in
soil. The portion of contaminated soil
with constituents below proposed levels
(i.e., exempt from subtitle C) was
generally estimated by using data from
Superfund Records of Decision from
1988 and 1989 on the constituent
concentration and volume of soil at
CERCLA sites.

C. Estimated Cost Savings
  By exempting wastes from regulation,
the proposed rule would generate cost
savings from  the point of hazardous
waste generation to disposal. Volumes
exempted and cost savings are projected
for wastes as generated, mixed and
derived-from wastes and  treatment
residuals. This analysis focuses on the
most significant cost savings: treatment
and disposal  cost savings for wastes,
and treatment cost savings for
contaminated media (soils). Thus, the
estimated cost savings depend on the
volume of waste and media exempted,
the treatment or disposal  avoided, and
the unit savings for different treatment
and disposal  methods.
  Hazardous wastes may incur
treatment and/or disposal cost savings.
In general, the estimated savings are
equal to the cost of treatment and
disposal of residues under subtitle C
minus the cost of disposing of the
exempted waste in a subtitle D landfill.
Second, if a hazardous waste meets
BDAT and proposed concentration
standards (e.g.,  BDAT treatment
residues), the only savings will be lower
disposal costs. These savings will equal
the difference between subtitle C and D
disposal costs.
  The primary costs savings for
contaminated soils will be avoided
treatment costs. Disposal savings do not
arise because contaminated media
exiting subtitle C is assumed not to be
subject to subtitle D because media are
not solid wastes.
  For each regulatory approach, the
following discussion presents the
Agency's estimates of the volume of
wastes as generated, residuals, and
contaminated media exempted from
subtitle C and the associated costs
savings.
1. Health-Based Approach
  This option would establish
                        exemption criteria by combining health-
                        based levels and multipliers (DAFs). It
                        combines constituent concentration
                        levels that minimize threats to human
                        health (based on conservative estimates
                        of human responses to contaminants)
                        with multipliers reflecting reasonable
                        worst-case management scenarios for
                        exempted wastes. Under this option, the
                        Agency would use health-based levels
                        equivalent to proposed or final MCLs
                        established under the Safe Drinking
                        Water Act, RfDs for non-carcinogens,
                        and RSDs for carcinogens. Additionally,
                        exemption criteria for contaminated
                        media could be based on direct
                        exposure using soil ingestion and
                        inhalation scenarios for residential
                        settings. For a  complete discussion of
                        health based levels used in this section
                        see chapter VI of the proposed rule
                        preamble.
                          Volumes of processed waste and
                        contaminated media affected by this
                        rule each year, and the associated cost
                        savings, are  shown in Exhibit 1. All
                        results are presented as ranges to reflect
                        the substantial uncertainty in these
                        estimates, including the concentration of
                        hazardous constituents in potentially
                        eligible process wastes and the volumes
                        of contaminated soil generated annually.
                        Furthermore, the wide range of
                        estimates also reflects the differences
                        among the health-based  sub-options
                        [i.e.,  multiplier of 1, multiplier of 10, or a
                        multiplier of 100 and, for contaminated
                        media, the direct exposure).
                          The health-based option would
                        exempt from just over 6, to nearly 84
                        million tons  of wastes and contaminated
                        media from subtitle C regulation
                        annually. The  largest portion of the
                        volume exempted is residuals from
                        BDAT treatment of process wastes (6  to
                        50 million tons). Total cost savings for
                        the health-based option range from
                        approximately $62 to $1,820 million per
                        year. The largest savings result from
                        exemption of contaminated media,
                        because of the high treatment costs.
                          Different regulatory options and sub-
                        options for process wastes [i.e., wastes
                        as generated and residuals) and
                        contaminated  media may be
                        advantageous. Thus, in the EA, the
                        Agency presents separate estimates for
                        each sub-option for process wastes and
                        contaminated  media. For process
                        wastes, the greatest savings could be
                        achieved with a sub-option multiplier of
                        100,  from $296 to $364 million per year.
                        For contaminated media, the multiplier
                        of 100 sub-option produces cost savings
                        of $400 to nearly $1,500 million annually.
                        Cost savings for other sub-options and
                        combinations  are presented in the EA.
EXHIBIT  1 .—HEALTH-BASED  APPROACH
  PROCESS  WASTE   &  CONTAMINATED
  MEDIA

Wastes eligible
before
treatment 	
Residuals from
other wastes 	
Contaminated
media 	
Totals. . . .
Affected
volumes
(million
tons/year)
< 1 to 32
6 to 50
<1 to 2
6 to 84
Cost savings
(million $/yr)
46 to 284
4 to 80
12 to 1,456
62 to 1,820
2.Expanded Characteristic Option
(ECHO)

  The expanded characteristic option
(ECHO), is evaluated in this section.
This scenario estimates the potential
volumes exempted and corresponding
cost savings associated with expanding
the current list of characteristics to
include all currently listed constituents.
As is the case with wastes now defined
as hazardous by a characteristic, wastes
would be exempt from subtitle C once
treated to  remove the characteristic.
Those wastes for which the listing is not
replaced by the expanded
characteristics would still be listed and
subject to  the mixture and derived from
rules. This option may also include
landfill design specifications and
associated meteorological and
geological conditions.
  The impact of this option on process
wastes was developed by using the
results of the health-based option with a
multiplier  of 100. The Agency, however,
recognizes that under this option,
constituent specific multipliers may be
higher or lower than 100 for specific
constituents. This option may
significantly increase the total number
of constituents managed under subtitle
C. Ultimately, it may also significantly
decrease the volume of waste regulated
under subtitle C, depending on the levels
selected for DAF multipliers.
  Based on the above assumptions, the
total volume of process waste and
residuals projected to be exempt under
this option is estimated to range from
about 68 to 84 million tons. The total
cost savings is likely to be higher than
the $296 to $364 million under the
multiplier of 100 option. This may result
from less rigorous testing requirements
(based on current TC testing
requirements).
  The total volumes of contaminated
media affected by this approach range
from about one-half to nearly 2 million
tons per year, for an annual cost savings
of $397 to  $1,456 million. These large

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                                                                     21501
ranges reflect major uncertainties in the
amount of contaminated soil generated
annually and the actual extent to which
the toxicity characteristic is expanded
(i.e., the portion of contaminated soil
below proposed levels).
  The above savings may be overstated
since  some non-hazardous waste may
be brought into subtitle C when the
characteristics are expanded. Depending
on the ultimate DAFs set for specific
constituents, these savings are also
potentially understated.

EXHIBIT   2.—CHARACTERISTIC  MANAGE-
  MENT  APPROACH  PROCESS WASTE &
  CONTAMINATED MEDIA

Wastes eligible
before
treatment.
Residuals from
other wastes
Contaminated
media
Totals
Affected
volumes
(million
tons/year)
18 to 32
50
04 to 2
68 4 to 84
Cost savings
(million $/yr)
216to 284
80
397 to 1 ,456
693 to 1,820
 3. Technology-Based Approach
  Under this option, exemption levels
 would be based on the performance of
 the best available waste treatment. This
 option mirrors the approach taken in the
 subtitle C Land Disposal Restrictions
 program, which establishes standards
 based on the best demonstrated
 available technology (BOAT). Although
 BDAT levels are generally below health-
 based levels, they may in a few cases be
 higher than acceptable health-based
 levels. For this reason, the technology-
 based option may be combined with
 health-based criteria to ensure that if
 wastes continue to pose hazards at the
 BDAT levels they would not  be
 exempted.
   Volumes of  wastes as generated,
 residues, and  contaminated media
 exempted by the technology-based
 alternative are presented in Exhibit 3,
 along with cost savings on treatment
 and disposal.  The total volume of waste
 exempted may range from nearly 55 to
 65 million tons per year, with a total cost
 savings ranging from approximately
 $203 to $260 million per year.
   The Agency assumes that  no
 contaminated  media will be  exempt
 from subtitle C regulation under the
 technology-based approach. This is
 because we assume in the baseline of
 this analysis that contaminated soils
(the only media studied in this EA) will
be treated to BDAT levels when they are
excavated, pursuant to the LDR
program. This analysis assumes that all
contaminated soils are excavated and
are then treated to BDAT levels and
subsequently exit subtitle C. However, a
portion of soils may not exit subtitle C
either because they are not treated or
because treatment does not reach BDAT
levels. The cost savings that could result
from exempting some of these soils has
not been quantified.
  Under the technology-based approach
the greatest share of cost savings results
from exemption of waste residuals
(Exhibit 3). This is estimated at
approximately 52 million tons per year,
with a corresponding cost savings of
approximately $140 million annually.

EXHIBIT  3.—TECHNOLOGY  BASED  AP-
  PROACH PROCESS WASTE  & CONTAMI-
  NATED MEDIA




Wastes eligible
before
treatment . ..
Residuals from
other wastes..
Contaminated
media
Totals
Affected
volumes
(million
tons/year)


3 to 13

52

0
55 to 65

Cost savings
(million $/yr)



63 to 1 1 9

140

0
203 to 259
 4. Contingent Management Approach
   The contingent management approach
 employs different management
 requirements depending on the waste
 constituent concentration. Most
 contaminated wastes and media would
 be regulated under existing subtitle C
 requirements. Wastes with low levels of
 contamination would be regulated under
 RCRA subtitle D, while media with low
 levels of contamination would be
 exempt from subtitle D as well as
 subtitle C requirements. Wastes and
 media with intermediate levels of
 contamination would receive
 management appropriate to those levels.
   Exhibit 4 shows the volumes of
 process wastes and contaminated media
 exempted under the contingent
 management approach and the resulting
 cost savings. Uncertainty in the total
 volumes of contaminated media are
 reflected in upper and lower values for
 these estimates. The upper and lower
 estimates also reflect the concentration
 of hazardous constituents in process
 wastes and the sub-options for
managing soils in the intermediate range
of contamination created by the
contingent management approach.
  Total volumes of process wastes and
contaminated media affected range from
about 9 to 60 million tons per year. Of
this, the greatest volume is for process
waste, accounting for approximately 59
million tons per year eligible under the
contingent range. The greatest
contributor to total cost savings is
contaminated media at a multiplier of
less than 10, which would produce
savings ranging from $358 to $1,314
million per year.
  Under the contingent management
approach, process wastes and
contaminated media affected by the rule
would either be entirely exempt from
subtitle C regulation or would be subject
to less stringent management
requirements depending on  their levels
of contamination. Process wastes in the
intermediate range of contamination
could either receive full subtitle C
management (in which case there would
be no change from the status quo and no
cost saving), or be placed in a subtitle D
landfill. The cost savings achieved if all
process wastes are placed in a landfill
meeting default requirements for
municipal solid wastes may total $228 to
$233 million per year. Actual cost
savings within this contingent category,
however, are likely to be less, depending
upon specific management
requirements.
   Contaminated soils in the
intermediate range of contamination
could receive one management choice
that does not apply to process wastes.
Contaminated soils could be capped in-
place to  meet subtitle D requirements.
As with  process wastes, there are no
cost savings for contaminated media
that continue to receive subtitle  C
management. However, if all
contaminated media currently falling
within the intermediate range (HBN*10-
HBN*100) of contamination were placed
in a subtitle D landfill, cost savings
would range from $35 to $129 million per
year (see EA). If all contaminated soils
were capped in-place, the cost savings
would be slightly larger, amounting to
$38 to $139 million per year (see EA).
Thus, the full range within this category
is $35 to $139 million cost savings per
year.
   Cost savings for in-place capping are
greater than cost savings for subtitle D
landfilling because the average cost per
 ton of capping soil ($18) is less than the
 average cost per ton of placing soil in a
 subtitle D landfill ($72).

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21502
Federal  Register / Vol. 57, No.  98 / Wednesday,  May 20, 1992  /  Proposed Rules
               EXHIBIT 4.—CONTINGENT MANAGEMENT APPROACH PROCESS WASTE AND CONTAMINATED MEDIA
                                                                            Affected volumes
                                                  HBN*10-
                                              HBNMOO
                                                                                        >HBN'100
                                                                            Million tons/year
Wastes eligible before treatment and residuals from other wastes
Contaminated media . . 	
Totals . . . 	
9 to 24
04 to 2
9
to 26
58 to 59
<0 1 to 0 2
58 to 60

All other remain in subtitle C
Remaining media
Remaining

HBNMO- HB,
HBNMOO >Mbr

>T100 Total
                                                                                     Million dollars/year
Wastes eligible before Treatment and residuals from other wastes
Contaminated media . .... 	
Totals . 	
67 to 132
358 to 1,314
425 to 1,446
228 to 233
35 to 139
263 to 372
0
0
0
295 to 365
393 to 1 ,453
688 to 1,818
5. Comparison of the Options
  Four different regulatory options were
considered in this analysis; the health-
based approach, the characteristic
management approach, the technology
approach, and the contingent
management approach. Quantification
of potential cost savings associated with
these options was developed to coincide
with the primary options presented in
the proposed rule. Results presented in
this analysis will provide the reader
with a useful overview of the potential
range of impacts associated with each
primary option in the proposed rule.
Alternative sub-options discussed in the
proposed rule  are not quantified in this
analysis. The Agency intends to fully
quantify all aspects of each option and
sub-option as presented in the final rule.
  Total potential cost savings across all
four options, for both process waste and
contaminated media, range from about
$60 to $1,870 million per year. The
characteristic and contingent
management approach appear to
provide the highest general cost savings
to industry, ranging from nearly $700 to
$1,870 million per year. The technology
based approach provides the least cost
savings to industry, at $200 to $260
million per year.
   Overall, it appears that those options
that may be the most difficult to
implement, enforce, and maintain, may
provide the most cost savings. However,
potentially significant implementation
cost factors associated with the two
high savings options have not been
 quantified in this analysis. Furthermore,
potential costs associated with health-
 based assurances needed  to implement
 the contingent and characteristic
 options may further reduce potential
 savings.
                        D. Potential Health and Environmental
                        Impacts
                          It is the Agency's intent that the
                        criteria for exempting hazardous wastes
                        and contaminated media from subtitle C
                        regulation be set at levels that have
                        been determined to be protective of
                        human health and the environment.
                        Hazardous wastes exempted from
                        subtitle C regulation would remain
                        subject to solid waste management
                        regulations, which would provide an
                        adequately protective level of
                        management tailored to the low risks
                        presented by the wastes.
                          A more comprehensive discussion of
                        health and environmental impacts
                        potentially associated with this
                        proposed rule is available elsewhere in
                        the preamble.
                        E. Economic Impacts
                          Economic impact analysis is designed
                        to determine the extent to which specific
                        groups, such as industries, bear the
                        costs or receive the benefits of
                        environmental regulation. This
                        information is important in evaluating
                        the fairness of the distribution of
                        benefits  and costs, determining whether
                        it is important to mitigate such effects,
                        and assessing the social costs of
                        regulation or, in the case of this
                        proposal, the cost savings of
                        deregulation. The two major types of
                        economic impacts of the proposed rule
                        are projected to be cost savings for
                        hazardous waste generators whose
                        wastes would be deregulated, and
                        revenue losses for the waste
                        management industry.
                           Based on the analysis of Generator
                         Survey data, the major industrial sectors
                         that generate the vast majority of listed
                         hazardous wastes that could be affected
by this proposal are primary metals and
fabricated metal products; chemicals,
plastics, pharmaceutical, and allied
products; and petroleum refining and
asphalt and coatings production. These
industries would be the main
beneficiaries of cost savings from
changes in hazardous waste
management practices as  a result of this
proposed rule.
  In addition to generators of hazardous
wastes, this proposal would benefit
those parties responsible for
management of contaminated media.
The affected parties are those who
spend funds on site remediation
activities, such as federal, state, and
local governments that conduct, finance,
or oversee remediation activities;
potentially responsible parties (PRPs)
under CERCLA and state  laws who
conduct or finance remediation
activities; hazardous waste treatment,
storage, and disposal facilities (TSDFs)
that conduct corrective actions or close
hazardous waste management units; and
firms, such as hazardous waste
generators, that must remediate existing
contaminated soil or clean up future
accidental spills.
  Under this proposal, future revenues
to the commercial hazardous waste
management industry could be lower
than in the absence of such a rule; less
hazardous waste and contaminated
media would be required to be treated
and disposed in subtitle C facilities.
Cost savings that accrue to generators
as a result of shifts from hazardous to
non-hazardous waste management may
mean losses in revenues for the
commercial hazardous waste
management industry. The net economic
impact on the industry is  undetermined.
However, the net impact  on society is

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               Federal Register  /  Vol. 57, No. 98 / Wednesday,  May 20. 1992  /  Proposed Rules        21503
likely to be positive as scarce economic
resources are refocused on the more
hazardous wastes.
  Despite potentially large foregone
revenues for the industry, this proposal
is unlikely to significantly adversely
affect a significant number of
commercial hazardous waste
management firms for several reasons.
First, based on data for 1990, the
industry is healthy and growing. Total
revenues exceeded $2.2 billion in 1990—
more than a 50 percent increase over
1989 revenues.11 Operating margins for
the industry were 19 percent on average
and rates of return on assets and equity
were 8 percent and 13 percent
respectively, representing a recovery
from declines in 1989. Second, the
industry still faces the prospect of
continued growth in demand for
commercial hazardous waste
management as a result of other
developments, such as increasing
remediation activities (e.g., RCRA
corrective actions) and the imposition of
the land disposal restrictions. Third,
many of the firms in the commercial
hazardous waste management industry
also operate subtitle D landfills. Thus,
they would benefit from the increased
demand for subtitle D management.

F. Limitations of the Analysis
  The scope and accuracy of the
methodology used to estimate the
potential volumes of process wastes and
contaminated media  affected, and the
associated cost savings are constrained
in several ways. The major limitations
include analytical and data constraints,
non-quantified cost savings, non-
quantified expenditures and
unquantified  effects on human health
and the environment.
  The Agency's  analysis relies on data
that have major  limitations. For
example, the analysis of process wastes
is based on the Generator Survey, which
reflects 1986 data. The generation and
management of hazardous wastes have
changed considerably since then. For
example, at the time  the survey was
conducted, a virtually universal
management proactive for wastewater
involved storing large volumes in
unlined pits, called surface
impoundments, where the waters would
be  treated prior to reentering the larger
NPDES system, or where wastewaters
would be allowed to remain. In 1988,
these impoundments had to comply with
RCRA's minimum technology
requirements, which meant for the
  11 "Commercial Hazardous Waste Management.
 Recent Financial Performance and Outlook for the
 Future." The Hazardous Waste Consultant, July/
 August 1991. pp 4 1 to 4-20
majority of them that they closed down.
Wastewaters which had been handled
in these impoundments were then
handled largely in tanks. This change in
practice put a premium on minimizing
the amount of wastewater handled. It is
thus possible that pre-1988 volumes of
waters subject to subtitle C are
overstated for that reason.
  In addition, the data used in the
analysis of contaminated media are
highly variable from year to year which
makes extrapolation from past records
difficult. For example, the volumes and
concentration levels of contaminated
soils are highly site-specific and depend
on the depth and location of the
sampling.
  The analysis assumes that all states
will adopt this proposal. In fact, the
Resource,  Conservation and Recovery
Act allows authorized states to set more
stringent levels. Cost savings may be
overestimated to the extent that states
adopt more stringent levels than in the
federal proposal. Cost savings,  however,
may be underestimated to the extent the
proposal causes the deregulation of
wastes that are hazardous under state,
but not federal rules. Cost savings may
be further underestimated if proposed
levels make  it cost-effective for
generators to initiate waste
minimization programs.
  Furthermore, this analysis does not
account for changes as a result of the TC
rule. In addition any new or delisted
constituents since 1986 are not  included.
Other economic impacts potentially
associated with this proposed rule,  but
not addressed here, are numerous.
These may include: corresponding
management impacts associated with
alternative waste generation and
disposal practices, the potential for
transferring  waste from tanks to surface
impoundments, alternative engineering
standards and corresponding long-term
capital savings. These are just a few of
the secondary economic impacts
potentially associated with this
proposal. The Agency intends to
address as many of these items as
possible in the analysis to accompany
the final rule.
Non-Quantified Cost Saving
  This analysis does not attempt to
estimate all  types of cost savings and
expenditures potentially associated with
the proposed Rule. The focus of the
analysis is one savings attributable to
reduced treatment and disposal costs of
process waste (and wastewaters) and
contaminated media. Additional savings
may arise which have not been
estimated.
   • Avoided treatment costs for
contaminated ground water. While
contaminated media includes both soil
and ground water, this analysis focuses
exclusively on contaminated soil and
therefore underestimates the cost
savings. While the avoided costs are
believed to be significantly smaller for
ground water than soil, large quantities
of ground water contaminated with
listed hazardous wastes can be
generated by remedial actions.
  • Avoided storage costs,
transportation costs, or other hazardous
management costs arising prior to
treatment.
Non-Quantified Expenditures

  Potential changes in EPA  and State
administrative costs associated with
this proposal are not estimated. While
additional administrative costs will be
involved in receiving, reviewing, and
inspecting eligibility determinations,
cost savings will arise because
hazardous wastes, hazardous waste
management units, and facilities will
exit subtitle C. It is unclear whether the
incremental costs would outweigh the
incremental savings.

G. Data Needs—Request For Comment

  Fundamental data limitations have
been the primary difficulty in
development of the preliminary
economic assessment for this proposed
rule. The Agency recognizes these data
limitations and their impact on the
analysis. One of the purposes of this
proposal is to request data and comment
related specifically to the current rule,
as proposed. The Agency requests data
and comments associated with three
general areas of concern: industry;
scientific/testing; and region, state and
local issues.
  Industry comments and data are
requested under three broad categories:
  Waste/Media Generation:
—Actual quantity of listed and/or
  characteristic hazardous waste
  generated on an average annual basis
  over the 1989 through 1992 period.
—Constituents and actual concentration
  levels of constituents linked to
  volumes identified above
—Constituent concentration estimates
  are needed at various points of
  generation and treatment:
—Out of the pipe
—After 1st treatment
—After 2nd treatment
—At point of disposal or discharge
—Actual quantity and extent of spills
  resulting in generation of
  contaminated media (soils,
  groundwater).
  Waste/Media Management:

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21504         Federal  Register / Vol. 57. No.  98 / Wednesday,  May 20, 1992  / Proposed Rules
—Unit costs for treatment of waste and
  contaminated media to BDAT levels,
  under alternative methods and
  alternative quantity levels.
—Unit costs for management and
  storage of waste and/or media.
—Implications potentially associated
  with captive vs. offsite treatment
  (alternative cost estimates,
  management, etc.)
—Estimated pace of remedial activity
  for media.
—Potential impacts on costs associated
  with alternative engineering
  requirements for storage facilities.
—Comments on general  facility costs
  and impacts/implications potentially
  associated with shifting from tanks to
  surface impoundments.
  Facility/Industry Implications:
—Comments on closure implications
  potentially associated with this
  proposal.
—Perceived implementation costs
  associated with this proposal.
—Perceived liability, financial, and
  management implications potentially
  associated with this proposal.
—Potential facility operational benefits
  as a result of this proposal, such as
  potential cost savings  and alternative
  management practices that may  result
  if wastewater could be "freed up"  to
  use again in the plant as make up,
  cooling, and closed loop process
  water,
  Scientific/testing data specifically
requested in conjunction with
development of the final Regulatory
Impact Analysis (RIA)are those
identifying actual test results for
leachates.
  Region, State and local comments
requested in conjunction with the EA
include comment on issues such as
perceived rate and extent of adoption by
states, and associated impacts on other
Agency actions. Comment is also
requested in the area of  testing and
enforcement, specifically the cost of
mandatory quality assessment/control
testing, the sampling and analysis  plans,
and  the number of tests needed for a
representative sample of specific waste
streams. The current EA for the
proposed rule has been developed under
significant time and data limitations.
The  Agency is aware of these
limitations and will  work to address
them in the RIA for the final rule. Part of
the procedure for development of a final
RIA includes revision of the current
document based on  changes for the final
rule, data revisions, and response  to
comments. The Agency has identified
specific areas of concern for receipt  of
data and comments in support of a final
RIA. However, comments need not be
limited to the areas identified above.
General and/or specific comments are
welcome from all interested parties. The
Agency has committed to the
development of a full Regulatory Impact
Analysis (RIA) in support of the April
1993 final rule.
XVII. Regulatory Flexibility Act
  Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a General
Notice of Rulemaking for any proposed
or final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the Agency certifies that the rule
will not have a significant impact on a
substantial number of small entities.
  The Economic Assessment conducted
in support of the proposed rule includes
a section, "Impacts on Small Entities."
The findings in this section are briefly
summarized below.
  Small quantity generators (SQGs) are
usually defined as entities that generate
between 100 and 1,000 kilograms per
month of hazardous waste (1.3 to 13.23
U.S. tons per year). Conditionally
exempt small quantity generators
(CESQGs) are entities that generate less
than 100 kilograms per month of
hazardous waste. The Agency estimates
there are about 65,000 to 70,000 SQGs
generating about 250,000 to 300,000
metric tons of hazardous waste
annually. Multiple industries are
represented  by SQGs.
  Based on the maximum allowable
volume for SQGs of 1,000 kilograms per
month (13.23 U.S. tons/year), and
estimated pre- demonstration cost
savings of $373/ton, the maximum
tolerable demonstration costs are
estimated at $4,850 per year.
Demonstration costs are fixed costs per
waste stream, while cost savings
depend upon the size of the waste
stream and volume exempted. As a
result, a minimum volume of waste must
be generated in order for any of the
Hazardous Waste Identification options
to be profitable. The small entity
analysis in the Economic Assessment
found that, in general, facilities would
need to generate a minimum of 200 tons
of eligible hazardous waste per year in
order to have a financial incentive to
seek exemption.
  Demonstration/implementation costs
have not been fully quantified for SQGs
but are expected to be generally the
same as for larger facilities, except for
an extended allowance for storage. This
factor alone is not expected to
compensate for the several fold increase
in volume needed to insure financial
incentive for SQGs. As a result, the
costs of gaining an  exemption appear, in
general, to significantly outweigh
potential treatment and disposal savings
for SQGs.
  Demonstration costs under the
enhanced characteristic option (ECHO)
may be lower than  other options
because only one-time testing would be
required. However, a multiplier of 100
under this option is expected to bring
non-hazardous wastes into the subtitle
C system. The Agency has not fully
quantified demonstration costs under
this option, or  the additional waste
volume that may be affected.
  The CBEC option is expected to not
significantly impact a substantial
number of small entities because  they
generate waste volumes well below the
point of financial incentive.
Furthermore, exemption levels are
considered  deregulatory in nature and
thus are expected to provide only
beneficial opportunities for SQGs who
may choose to pursue exemption  under
this proposal.
  However, under the ECHO option it is
possible that a significant number of
small entities may be affected. Due to
the short period of time available to the
Agency to publish this proposal, the
Agency has not had time to develop a
regulatory flexibility analysis for  the
ECHO option in today's notice. For the
final Regulatory Impact Analysis, the
Agency intends to develop a
comprehensive small entity analysis
corresponding to this option. Pursuant to
5 U.S.C. 608(a) (allowing waiver or delay
of initial regulatory flexibility analysis),
I therefore find that publication of an
initial regulatory flexibility analysis for
this rule would be impracticable.

XVIII. Paperwork Reduction Act

  The reporting, notification, or
recordkeeping (information) provisions
in this rule  will be submitted for
approval to the Office of Management
and Budget (OMB)  under section 3504(b)
of the Paperwork Reduction Act of 1980,
U.S.C. 3501 et seq. Any final rule will
explain how its reporting, notification,
or recordkeeping provisions respond to
any OMB or public comments.

List of Subjects

40 CFR Part 260

  Administrative practice and
procedure,  Confidential business
information, Hazardous waste.

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                Federal Register / Vol. 57.  No. 98 / Wednesday. May 20,  1992  /  Proposed Rules	21505
 40 CFR Part 261

   Hazardous waste, Recycling,
 Reporting and Recordkeeping
 requirements.
 40 CFR Part 262

   Exports, Hazardous materials
 transportation, Hazardous waste,
 Imports, Labeling, Packaging and
 containers, Reporting and recordkeeping
 requirements.
 40 CFR Part 264

   Hazardous wastes, Insurance,
 Packaging  and containers, Reporting
 and recordkeeping requirements,
 Security measures, Surety bonds.

 40 CFR Part 268

   Hazardous waste, Reporting and
 recordkeeping requirements.
   Dated: April 30,1992.
 William K. Reilly,
 Administrator.
 XIX. References
 U.S. Environmental Protection Agency,
    Environmental Monitoring Systems
    Laboratory; "Performance Testing of
    Method 1312—QA Support  for RCRA
    Testing." EPA/600/489/022, June 1989.
 Research Triangle Institute; "Interlaboratory
    Comparison of Methods 1310, 1311, and
    1312 for Lead in Soil". U.S. EPA Contract
    68-01-7075, November 1988.
 U.S. Environmental Protection Agency, Office
    of Solid Waste and Emergency Response;
    OSWER Directive Nft 9285.7; "Human
    Health Evaluation Manual,  Part B:
    Development of Risk-based Preliminary
    Remediation Goals;" from Henry Longest
    II, Director, Office of Emergency and
    Remedial Response; and Bruce Diamond,
    Director, Office of Waste Programs
    Enforcement; to  Regional Waste
    Management Division Directors;
    December 13, 1991.
 U.S. Environmental Protection Agency, Office
    of Solid Waste and Emergency Response;
    OSWER Directive No. 9850.4; "Interim
    Final Guidance for Soil Ingestion Rates;"
    from J. Winston Porter, OSWER
    Assistant Administrator; to Regional
    Administrators (I-X); January 27, 1989.
 U.S. Environmental Protection Agency, Office
    of Research and Development, Office of
    Health and Environmental Assessment;
    "Exposure Factors  Handbook;" EPA/
    600/8-89/043, March 1990.

  For the reasons set out in the
preamble, it is proposed to amend title
40 of the Code of Federal Regulations as
follows:

[Option 1

PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL

  1. The authority citation for part 260
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921-
 6927, 6930, 6934, 6935, 6937, 6938, 6939, and
 6974.
  2. In 260.10, add the following
 definitions in alphabetical order:
 §260.10  Definitions.
 *     *     *     *     *
  Dilution means the addition of
 materials, liquid or non-liquid, to
 increase the volume of a given waste or
 media to reduce constituent
 concentrations.
 *****
  Media means any naturally-occurring
 soil or ground water.
 *****
  Soil means unconsolidated earth
 material composing the superficial
 geologic strata (materials overlying
 bedrock), consisting of clay, silt, sand,
 or gravel size particles (sizes as
 classified by the U.S. Soil Conservation
 Service), or is a mixture of such
 materials with other liquids, sludges, or
 solids, and is inseparable by simple
 mechanical removal processes.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
  3. The authority citation for part 261
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921, and
6922.
  4. In 261.3, paragraph (e) is removed.
  5. In 261.4, paragraphs (a)(12) and (13)
(b)(13) and (14) are added to read as
follows:

§ 261.4  Exclusions.
  (a)  *  *  *
  (12) Environmental media [e.g., soils
and ground  water) contaminated or
mixed with  one or more wastes listed in
subpart D or with residuals derived from
the treatment, storage, or disposal of a
waste listed in subpart D that meet the
conditions of this paragraph and the
applicable exemption levels specified in
appendix XI to part 261 [for  a generic
exemption]:
  (i) Media with constituent
concentrations meeting the exemption
levels for [a generic exemption] in
appendix XI will be considered non-
hazardous so long as the following
conditions are met:
  (A)  A sampling and analysis plan is
prepared in  accordance with the
requirements specified in appendix XIII
to part 261 prior to the waste being
managed as non-hazardous;
  (B)  Representative samples of the
contaminated media are analyzed in
accordance with the requirements
specified in  appendices XI and XIII to
 part 261 prior to the waste being
 managed as non-hazardous;
   (C) Sampling and analysis of media is
 repeated annually for the first two years
 an exemption is claimed and every three
 years thereafter (for as long as
 remediation or generation continue) and
 when process or operating changes
 (including upsets) occur which could
 affect the medium's composition.
   (D) Notification of the exemption
 claim is received by the Regional
 Administrator prior to any management
 of media qualifying for exemption under
 this paragraph as non-hazardous.
 Notification must be resubmitted
 annually for the first two years an
 exemption is claimed and every three
 years thereafter and when process or
 operating changes (including upsets)
 occur which could affect the medium's
 composition. The notification must
 include:
   (1) The name, address, RCRA ID
 number of the person seeking the
 exclusion, and identification of the
 exemption being sought;
   (2) EPA Hazardous Waste Number;
   (3} Average and maximum monthly
 and annual amount of excluded media;
   (4) Name and address of the disposal
 facility; and
   (5) The following statement signed by
 the person seeking the exclusion or his
 authorized representative.
  Under penalty of criminal and civil
 prosecution for making or submission of false
 statements, representations, or omissions, I
 certify that the requirements of 40 CFR
 261.4(a)(12) have been met for all media
 contaminated with listed waste excluded
 from regulation according to the provisions of
 this part. Based on my inquiry of those
 individuals immediately responsible for
 obtaining the information, I believe that the
 information is true, accurate, and complete. I
 am aware that there are significant penalties
 for submitting false information, including the
 possibility of fine and imprisonment. 1 have
 been authorized, in writing, to make such
 declarations by the person in charge of the
 generator's demonstration.
  (ii) Notifications of the exemption
 must be submitted by certified mail to
 the Regional Administrator. Copies  of
 notifications and all sampling and
 analysis records must be kept on-site for
 at least three years from the date of
 sampling. The three-year generator
 record retention period will be
 automatically extended during the
 course of any unresolved enforcement
action regarding the regulated activity or
 as requested by the Regional
Administrator. Owners and operators
must retain these records until the
facility is closed.
  (iii) As a condition of exclusion and
for purposes of enforcing the conditions

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21506	Federal  Register / Vol. 57, No.  98 / Wednesday, May 20.  1992 / Proposed Rules
set out in this paragraph, any person
qualifying for an exemption under this
paragraph must, upon request of any
duly designated representative of EPA,
furnish information relating to media
excluded under this paragraph and
permit such representatives at all
reasonable times to have access to, and
to copy, all records relating to such
media, to enter the facility at reasonable
times, and to inspect  and obtain samples
of such media and samples of any
containers or labeling for such media.
  (iv) On, or within, 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
  (A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
  (B) Description of the waste and EPA
Hazardous Waste Number;
  (C) Average and maximum monthly
and annual amount of excluded media;
and
  (D) Name and address of the disposal
facility;
  (E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and
copied by interested parties, and the
length of time the information will
remain available, and
  (F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
  (v) The exclusion under this provision
does not apply to:
  (A) Media that are contaminated with
F020, F021, F023, F024, F027, F028, K001,
K009, K010, K017, K023, K024, K026,
K027, K036, K037, K038, K039, K040,
K043, K044, K045, K047, K099, K119 and
PllO and media that are contaminated
with 40 CFR 261.33 wastes that are not
listed in appendix XI;
  (B) Contaminated media containing
any constituent in appendix 1 that is
quantitatable at a level that exceeds the
concentration-based exemption criteria
level for that constituent;
  (C) Contaminated media when the
actual detection limit for a constituent
(other than the 40 CFR part 261,
appendix VII constituents for which the
contaminating listed waste was listed)
exceeds the concentration-based
exemption criteria quantitation limit
specified for that constituent in
appendix 2 and the applicable
concentration-based exemption criteria
level is below that quantitation limit;
  (D) Contaminated media that are
diluted in ways not permitted under the
land disposal restrictions in 40 CFR part
258 (rather than treated to reduce
constituent loadings) to achieve the
concentration-based exemption criteria
levels;
  (E) Contaminated media that change,
or are changed, over time from the
media characterized in the exemption
determination due to reconstitution,
process upsets or changes, or other
factors affecting media composition or
leaching; and
  (F) Contaminated media that exhibit
any of the characteristics of hazardous
wastes listed in subpart  C.
  (13) Environmental media (e.g., soils
and ground water) contaminated or
mixed with one or more  wastes listed in
subpart D or with residuals derived from
the treatment, storage, or disposal of  a
waste listed in subpart D that meet the
conditions of this paragraph and the
applicable exemption levels specified in
appendix XI to part 261  [for a  contingent
management exemption]:
  (i) Before these hazardous wastes will
be considered exempt from full
regulation under this paragraph, the
generator must comply with the
following conditions:
  (A) Sampling and analysis in
accordance with the procedures and
documentation requirements set forth in
appendix XIII that demonstrates that the
constituent concentrations in the media
meet the applicable exemption levels in
appendix XII. Sampling  and analysis  of
media claiming an exemption under this
paragraph must be repeated annually for
the first two years the exemption
claimed and every three years
thereafter, and when changes to the
production or treatment process
(including upsets) occur that could affect
waste composition;
   (B) Notification of the Regional
Administrator that an exemption is
claimed for the media under this
paragraph and certification that the
constituent concentrations in the media
meet the exemption levels set  forth in
appendix XI and that the media wastes
will be disposed of in a  unit meeting  the
criteria set forth in paragraph
(a)(13)(i)(C) of this section. Notifications
of the exemption must be submitted by
certified mail to the Regional
Administrator and must be resubmitted
annually for the first two years of the
exemption and every three years
thereafter, when changes to the
production or treatment process
(including upsets) occur that could affect
media composition, and when there are
changes in the identity of the designated
disposal facility. The notification must
include:
  (1) The name, address, and RCRA ID
number of the person seeking the
exemption and identification of the type
of exemption being claimed;
  (2) Average and maximum monthly
and annual amounts of excluded media;
  (3) Name and address of the  disposal
facility; and
  (4) The following statement signed by
the person seeking the exemption or his
authorized representative:
  Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the listed hazardous waste for
which I assert an exemption from regulation
according to the provisions of this part meet
the exemption levels set forth in appendix XI
to 40 CFR part 261 and that the disposal
facility identified in this notification contains
units meeting the criteria of 40 CFR part 258,
subpart D. Based on my inquiry of  those
individuals immediately responsible for
obtaining the information, I believe that the
information upon which the claim of
exemption is based is true, accurate and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment.

  (C) Media meets the applicable LDR
requirements of 40 CFR part 268 and is
disposed of in a unit meeting the design
criteria of 40 CFR part 258 subpart D.
  (ii) Prior to satisfaction of all
conditions for the exemption under this
paragraph, including the condition  that
the media are managed in accordance
with the applicable management
standards, the wastes are hazardous
wastes subject  to full subtitle C
regulation.
  (iii) Notifications, and all sampling
and testing plans and records upon
which an exemption claim is based must
be kept on-site  for at least three years
from the date of sampling. The three-
year record generator retention period
will be automatically extended during
the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional Administrator. Owners and
operators must retain these records until
the facility is closed.

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               Federal Register / Vol.  57, No. 98 /  Wednesday, May 20,  1992 / Proposed Rules	21507
  (iv) Any person qualifying for an
exemption under this paragraph must,
upon request of any duly designated
representative of EPA, furnish
information relating to media exempted
under this paragraph and permit such
representative at all reasonable times to
have access to, and to copy, all records
relating to such media, to enter the
facility at reasonable times, and to
inspect and obtain samples of such
media and samples of any  containers or
labeling for such media.
  (v) Respondents in actions to enforce
this paragraph who raise a claim that a
certain material is exempt  from
regulation under this section must
demonstrate, through appropriate
documentation, satisfaction of all
conditions necessary for the exemption.
  (vi) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The  claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The  claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be  entitled
"Claim of Exemption from  the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
  (A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
  (B) Description  of the waste and EPA
Hazardous Waste Number;
  (C) Average and maximum monthly
and  annual amount of excluded media;
and
  (D) Name and address of the disposal
facility;
  (E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and
copied by interested parties, and the
length of time the  information will
remain available,  and
  (F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
  (vii) The exclusion under this
provision does not apply to:
  (A) Media that are contaminated with
F020, F021, F023, F024, F027, F028, K001,
K009, KOIO, K017,  K023, K024, K026,
K027, K036, K037,  K038, K039, K040,
K043, K044, K045, K047, K099, K119 and
P110 and media that are contaminated
with 40 CFR 261.33 wastes that are not
listed in appendix XII;
  (B) Contaminated media containing
any constituent in appendix XII that is
quantitatable at a level that exceeds the
concentration-based exemption criteria
level for that constituent;
  (C) Contaminated media when the
actual detection limit for a constituent
(other than the 40 CFR part 261,
appendix VII constituents for which the
contaminating listed waste was listed)
exceeds the concentration-based
exemption criteria quantitation limit
specified for that constituent in
appendix XII and the applicable
concentration-based exemption criteria
level is below that quantitation limit;
  (D) Contaminated media that are
diluted in ways not permitted under the
land disposal restrictions in 40 CFR part
258 (rather than treated to reduce
constituent loadings) to achieve the
concentration-based exemption criteria
levels;
  (E) Contaminated media that change
or are changed over time from the  media
characterized in the exemption
determination due to reconstitution,
process upsets or changes, or other
factors affecting media composition or
leaching; and
  (F) Contaminated media that exhibit
any of the characteristics of hazardous
wastes listed in subpart C.
  (b) * * *
  (13) Waste listed in subpart D;
residuals from treatment, storage,  and
disposal of waste listed in subpart D;
mixtures  of solid wastes and wastes
listed in subpart D; and materials that
contain wastes listed in subpart D that
meet the conditions of this paragraph
and the applicable exemption levels
specified in appendix XII to part 261:
  (i) Wastes with constituent
concentrations meeting the exemption
levels for [a generic exemption] in
appendix XI will b'e considered non-
hazardous so long as the following
conditions are met:
  (A) A sampling and analysis plan is
prepared in accordance with the
requirements specified in appendix XIII
to part  261 prior to the waste being
managed as non-hazardous;
  (B) Representative samples of the
wastes are analyzed in accordance with
the requirements specified in
appendices XI and XIII to part 261 prior
to the waste being managed as non-
hazardous;
  (C) Sampling and analysis of waste is
repeated annually for the first two years
an exemption is claimed and every three
years thereafter (for as long as
remediation or generation continue) and
when process or operating changes
(including upsets) occur which could
affect the medium's composition.
  (D) Notification of the exemption
claim and certification that all
conditions of the exemption have been
met is received by the Regional
Administrator prior to any management
of waste qualifying for exemption under
this paragraph as  non-hazardous.
Notification must  be resubmitted
annually for the first two years an
exemption is claimed and every three
years thereafter and when process or
operating changes (including upsets)
occur which could affect the medium's
composition. The notification must
include:
  (7) The name, address, and RCRA ID
number of the person seeking the
exclusion  and identification of the type
of exemption being claimed;
  [2] EPA Hazardous Waste Number;
  (3) Average and maximum monthly
and annual amount of excluded media;
  (4) Name and address of the disposal
facility; and
  (5] The following statement signed by
the person seeking the exclusion or his
authorized representative.
  Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the requirements of 40 CFR
261.4(b)(13) have been met for all waste
excluded from regulation according to the
provisions of this part. Based on my inquiry
of those individuals immediately responsible
for obtaining the information, I believe that
the information is true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment. I have been authorized, in
writing, to make such declarations by the
person in charge of the generator's
demonstration.

  (ii) Notifications of the exemption
must be submitted by certified mail to
the Regional Administrator.
Notifications and  all sampling and
analysis records must be kept on-site for
at least three years from the date of
sampling. The three-year generator
record retention period  will be
automatically extended during the
course of any unresolved enforcement
action regarding the regulated activity or
as requested by the Regional
Administrator. Owners  and operators
must retain these records until the
facility is closed.
  (iii) As a condition of exclusion and
for purposes of enforcing the conditions
set out in this paragraph, any person
qualifying for an exemption under this
paragraph must, upon request of any
duly designated representative of EPA,
furnish information relating to waste

-------
21508
Federal  Register / Vol. 57, No.  98 / Wednesday, May  20,  1992 / Proposed Rules
excluded under this paragraph and
permit such representatives at all
reasonable times to have access to, and
to copy, all records relating to such
waste, to enter the facility at reasonable
times, and to inspect and obtain samples
of such media and samples of any
containers or labeling for such waste.
  (iv) Respondents in actions to enforce
this paragraph who raise a claim that a
certain waste is exempt from regulation
under this section must demonstrate,
through appropriate documentation,
satisfaction of all conditions necessary
for the exemption.
  (v) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
  (A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
  (B) Description of the waste and EPA
Hazardous Waste Number;
  (C) Average and maximum monthly
and annual amount of excluded media;
and
  (D) Name and address of the disposal
facility;
  (E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and copies
by interested parties, and the length of
time the information will remain
available, and
   (F) The name and address of  the
Regional Administrator where written
comments on the exemption claim can
be submitted.
   (vi) The exclusion under this  provision
 does not apply to:
   (A) EPA Hazardous Waste Nos. F020,
F021, F023, F024, F027, F028, K001, K009,
 K010, K017, K023, K024, K026, K027,
 K036, K037, K038, K039, K040, K043,
 K044, K045 K047, K099, K116 and P110
 and 40 CFR 261.33 wastes that are not
 listed in appendix XI;
   (B) Wastes containing any constituent
 in appendix XI that is quantitatable at a
                        level that exceeds the exemption level
                        under this paragraph for that
                        constituent;
                          (C) Wastes when the actual detection
                        limit for a constituent (other than 40
                        CFR part 261, appendix VII constituents
                        for which the waste was listed) exceeds
                        the quantitation limit specified for that
                        constituent in appendix XII the
                        applicable exemption level set forth in
                        appendix XII is below that quantitation
                        limit;
                          (D) Wastes that are diluted (rather
                        than treated to reduce constituent
                        loadings) to achieve the exemption
                        levels set forth in appendix XII;
                          (E) Wastes that change or are changed
                        over time from the waste characterized
                        in the exemption determination due to
                        reconstitution, process upsets or
                        changes, or other factors affecting waste
                        composition or leaching;
                          (F) The unit in which the exempt
                        waste was managed prior  to exemption,
                        unless excluded under the provisions of
                        40 CFR 260.20 and 260.22; and
                          (G) Wastes that exhibit  any of the
                        characteristics of hazardous wastes
                        listed in subpart C.
                          (14) Residuals from treatment,  storage,
                        and disposal of waste listed in subpart
                        D that meet the applicable treatment
                        standards under 40 CFR part 268 and the
                        conditions of this paragraph and the
                        applicable exemption levels specified in
                        appendix XII to part 261 for contingent
                        management exemptions:
                          (i) Before these hazardous wastes will
                        be considered exempt from full
                        regulation under this paragraph,  the
                        generator must comply with the
                        following conditions:
                          (A) Sampling and analysis in
                        accordance with the procedures  and
                        documentation requirements set forth in
                        appendix XII that demonstrates that the
                        constituent concentrations in the waste
                        meet the applicable exemption levels in
                        appendix XII. Sampling and analysis of
                        wastes claiming an exemption under
                        this paragraph must be repeated
                        annually for the first two years the
                        exemption claimed and every three
                        years thereafter, and when changes to
                        the production or treatment process
                        (including upsets) occur that could affect
                        waste composition;
                           (B) Notification of the Regional
                        Administrator that an exemption is
                        claimed for these wastes under this
                        paragraph and certification that the
                        constituent concentrations in the waste
                        meet the exemption levels set forth in
                         appendix XII that the waste will be
                        disposed of in a unit meeting the design
                         criteria of 40 CFR part 258, subpart D.
                         Notifications of the exemption must be
                         submitted by certified mail to the
                         Regional Administrator and must be
resubmitted annually for the first two
years of the exemption and every three
years thereafter, when changes to the
production or treatment process
(including upsets) occur that could affect
waste composition, and when there are
changes in the identity of the designated
disposal facility. The notification must
include:
  (7) The name, address, and RCA ID
number of the person seeking the
exemption and identification of the type
of exemption being claimed;
  (2) EPA Hazardous Waste Number
and description of the process
generating the waste;
  (3) Average and maximum monthly
and annual amounts of excluded waste;
  (4) Name and address of the disposal
facility; and
  (5) The following statement signed by
the person seeking the exemption or his
authorized representative:
  Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the listed hazardous waste for
which I assert an exemption from regulation
according to the provisions of this part meet
the exemption levels set forth in appendix XII
to 40 CFR part 261 and that the disposal
facility identified in this notification contains
units meeting the design criteria of 40 CFR
part 258, subpart D. Based on my inquiry of
those individuals immediately responsible for
obtaining the information, I believe that the
information upon which the claim of
exemption is based is true, accurate and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment.

  (C) The wastes meet the applicable
LDR requirements of 40 CFR part 268
and are disposed of in a unit meeting the
design criteria of 40 CFR part 258,
subpart D.
  (ii) Prior to satisfaction of all
conditions for the exemption under this
paragraph, including the condition that
the wastes are managed in accordance
with the applicable management
standards, the wastes are  hazardous
wastes subject to full subtitle C
regulation.
  (iii) Notifications, and all sampling
and testing plans and records upon
which an exemption claim is based must
be kept on-site for at least three years
from the date of sampling. The three-
year generator record retention period
will be automatically extended during
the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional  Administrator. Owners and
operators must retain these records until
the facility is closed.

-------
               Federal Register  /  Vol. 57, No.  98 / Wednesday, May 20,  1992  /  Proposed Rules	21509
  (iv) Any person qualifying for an
exemption under this paragraph must,
upon request of any duly designated
representative of EPA, furnish
information relating to wastes exempted
under this paragraph and permit such
representative at all reasonable times to
have access to, and to copy, all records
relating to such wastes, to enter the
facility at reasonable times, and to
inspect and obtain samples of such
wastes and samples of any containers or
labeling for such wastes.
  (v) Respondents in actions to  enforce
this paragraph who raise a claim that a
certain material is exempt from
regulation under this section must
demonstrate, through appropriate
documentation, satisfaction of all
conditions necessary for the exemption.
  (vi) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a  major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
                                        publication of the newspaper notice.
                                        The notice, which shall be entitled
                                        "Claim of Exemption from the Definition
                                        of Hazardous Waste under 40 CFR
                                        261.4," must include:
                                         (A) The name,  address, RCRA ID
                                        number of the person seeking the
                                        exclusion,  and identification of the
                                        exemption being  sought;
                                         (B) Description of the waste and EPA
                                        Hazardous Waste Number;
                                         (C) Average and maximum monthly
                                        and annual amount of excluded media;
                                        and
                                         (D) Name and address of the disposal
                                        facility;
                                         (E) Name and address of the location
                                        where the  notification provided to the
                                        Regional Administrator and all
                                        supporting data and documentation for
                                        the exemption can be viewed and
                                        copied  by interested parties, and the
                                        length of time the information will
                                        remain available, and
                                         (F) The name and address of the
                                        Regional Administrator where written
                                        comments on the exemption claim can
                                        be submitted.
                                         (vii) The exclusion under this
                                        paragraph does not apply to:
                                         (A) EPA Hazardous Waste Nos. F020,
                                        F021, F023, F024,  F027, F028, K001, K009,
                                        K010, K017, K023, K024, K026, K027,
                                        K036, K037, K038, K039, K040, K043,
                                        K044, K045, K047, K099, K119 and P110
and 40 CFR 261.33 wastes that are not
listed in appendix XII;
  (B) Wastes containing any constituent
in appendix XII that is quantitatable at a
level that exceeds the exemption level
under this paragraph for that
constituent;
  (C) Wastes when the actual detection
limit for a constituent (other than 40
CFR part 261, appendix VII constituents
for which the waste was listed) exceeds
the quantitation limit specified for that
constituent in appendix XII and the
applicable exemption level set forth in
appendix XII is below that quantitation
limit;
  (D) Wastes that are diluted (rather
than treated to reduce constituent
loadings) to achieve the exemption
levels set forth in appendix XII;
  (E) Wastes that change or are changed
over time from the waste characterized
in the exemption  determination due to
reconstitution, process upsets or
changes, or other factors  affecting waste
composition or leaching;
  (F) The unit in which the  exempt
waste was managed prior to exemption,
unless excluded under the provisions of
40 CFR 260.20 and 260.22; and
  (G) Wastes that exhibit any of the
characteristics of hazardous wastes
listed in subpart C.
                                              Appendix VIII—Amended

    6. In appendix VIII of part 261, add the following hazardous constituents in alphabetical order:

                                        Appendix VIII—Hazardous Constituents
                  Common name
                                                               Chemical abstracts name
                                                                                                  Chemical
                                                                                                 abstracts No.
                              Hazardous
                              waste No.
                                                Acenaphthylene, 1,2-dihydro

                                                2-Propanone
                                                Same
                                                Benzenemethanol
                                                Methane, dibromochloro-
Acenaphthene...       ..     .       	
Acetaldehyde     ...     .    .
Acetone       .        .       ..     	

Acrylic acid	     	

Benzo(k) fluoranthene   ...
Benzyl alcohol  ...

n-Butyl alcohol  .  .    . .            ....

Chlorodibromo-methane; Dibromo-chloromethane.. .

Cumene.....      ........       .     .

Cyclohexanone ........       	
Di-n-butyl phthalate  	    	     .      	      1,2-Benzenedicarboxyhc acid, dibutyl ester...

Dimethylamme  	    	'	     	       	

1,4-Dioxane	 Same	     	

Ethyl acetate  	    	      	

Ethylbenzene	Benzene, ethyl- 	    	

Ethyl ether	
        *              •              *               •              •
Furan	     	
                 83-32-9
                 75-07-0
                 67-64-1

                 79-10-7

                 201-08-9
                 100-51-6

                 71-36-3

                 124-48-1

                 98-82-8

                 108-94-1
                 84-74-2

                 124-40-3

                 123-91-1

                 141-78-6

                 100-41-4
                 r

                 60-29-7

                 110-00-9
U001
U002
                                                                                                                  U008
U031



U055

U057
U069

U092

U108

U112
                                                                                                                  U117

                                                                                                                  U124

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21510
Federal Register  /  Vol. 57, No. 98 / Wednesday, May 20,  1992  /  Proposed Rules

Common name
Isophorone
Methanol . ...
Methyl isobutyl ketone ....
Phenanthrene
Styrene , ...
Vanadium
Xylene
Zinc

Chemical abstracts name
2-Cyclohexen-1-one, 3,5,5-tnmethyl.
Same
Benzene, ethenyl
Same
Benzene, dimethyl
Same

Chemical
abstracts No
.. . 78-59-1
	 67-56-1
108-10-1
85-01-8
100-42-5
Total
1330-20-7
Total

Hazardous
waste No.

U154
U161

U239
  7. At the end of part 261, appendices XI, XII and XIII are added to read as follows:
                                        APPENDIX XI—CBEC FOR MEDIA
                                                                       Tier 1

Common name l
Acenaphthene
Acetone (2-propanone)
Acetomtnle (methyl cyanide)
Acetophenone
Acrolem
Acrylamide
Acrylonitnle
Aldrm 	
Aniline (benzeneamme)
Antimony (and compounds N O S )
Aramite
Arsenic (and compounds N O S )
Barium (and compounds N O S )
Benz[a]anthracene
Benzene
Benzidme
Benzo(b)fluoranthene
Benzo(a)pyrene
Benzotnchloride
Benzyl alcohol
Benzyl chloride
Beryllium (and compounds N O S )
Bis(2-chloroethyl) ether
Bis(2-chloroisopropyl) ether
Bis(2-ethylhexyl) phthalate
Bromodichloromethane
Bromomethane
Butanol
Butyl benzyl phthalate
2-sec-Butyl-4,6-dmitrophenol (Dinoseb)
Cadmium (and compounds N O S )
Carbon disulfide
Carbon tetrachlonde
Chlordane
p-Chloroanilme
Chlorobenzene
Chlorobenzilate
2-Chloro-1 ,3-butadiene (chloroprene)
Chlorodibromomethane
Chloroform
Chloromethane (Methyl Chloride)
2-Chlorophenol
3-Chloropropene (allyl chloride)
Chromium (and compounds N O S )
Chrysene
Cresols
Cumene
Chemical
abstract
No 2
83-32-9
67-64-1
75-05-8
98-86-2
107-02-8
79-06-1
107-13-1
309-00-2
62-53-3
7440-36-0
140-57-8
7440-38-2
7440-39-3
6-55-3
71-43-2
92-87-5
205-99-2
50-32-8
98-07-7
100-51-6
100-44-7
7440-41-7
111-44-4
39638-32-9
117-81-7
75-27-4
74-83-9
71-36-3
85-68-7
88-85-7
7440-43-9
75-15-0
56-23-5
57-74-9
106-47-8
108-90-7
510-15-6
126-99-8
124-48-1
67-66-3
74-87-3
95-57-8
107-05-1
7440-47-3
218-01-9
1319-77-3
98-82-8

Exemption
levels for
soils 3 (mg/
kg)
1000
1000
500
1000
1000
2
2
.07
200
30
40
20
1000
05
40
005
1
2
09
1000
7
03
1
20
80
9
100
1000
1000
80
40
1000
9
09
300
1000
1000
1000
10
200
90
400
50
400
10
1000
1000

EQC for
soils " (mg/
kg)
07
1
1
7
005
1
005
003
7
20
1
7
1
009
005
2
01
02
004
1
1
2
7
7
7
005
005
1
7
01
3
1
005
009
1
005
7
005
005
005
005
7
005
5
1
7
005

Possible
SW-846
method for
soils 5
8270
8240
8240
8270
8240
8260
8240
8080
8270
6010
8270
7060
6010
8310
8260
8270
8310
8310
8121
8270
8121
6010
8270
8270
8270
8260
8260
8240
8270
8150
6010
8240
8260
8080
8270
8260
8270
8260
8260
8260
8260
8270
8240
6010
8310
8270
8240

Exemption
levels for
leachate «
(mg/L)
20
40
2
40
7
8E-5
6E-4
2E-5
006
0 1
001
05
20
0001
005
2E -6
0002
0002
3E -5
100
0002
001
3E-4
0005
04
003
5
40
1
07
05
40
05
02
1
1
7
7
004
06
03
2
02
1
002
20
10

EQC for
leachate
(mg/L)
001
1
1
01
005
1
005
4E-5
01
03
02
01
02
1E -4
005
03
2E -4
2E -4
6E -5
02
002
003
003
01
01
005
005
1
01
7D-5
001
1
005
1E-4
02
005
01
005
005
005
005
01
005
01
002
01
005
Tier 2
Possible
SW-846
method for
leachate
8270
8240
1 2 8240
8270
12 8240
8260
12 8240
8080
8270
7041
8270
7060
6010
8310
8260
8270
8310
8310
8121 /8
8270
8121
6010
8110
8270
8270
8260
8260
8240
8270
8150
7131
8240
8260
8080
8270
8260
8270
8260
8260
8260
8260
8270
8240
7191
8310
8270
8240

Exemption
levels for
leachate 7
(mg/L)
200
400
20
400
70
0008
06
002
6
1
1
5
200
01
5
2E -4
02
02
003
1000
2
1
03
5
.4
3
5
400
10
7
5
400
5
2
10
10
70
70
4
6
3
20
2
10
02
200
100

-------
                  Federal Register /  Vol. 57,  No. 98  /  Wednesday,  May 20,  1992  / Proposed  Rules          21511
                                             APPENDIX XI—CBEC FOR MEDIA—Continued
            Common name '
Chemical
 abstract
  No 2
                                                                                             Tier 1
 Exemption
 levels for
soils 3 (mg/
    kg)
 EQCfor
soils 4 (mg/
    kg)
 Possible
 SW-846
method for
  soils 5
Exemption
 levels for
leachate 6
  (mg/L)
                                                                                                                      Tier 2
                                                                                                         EQC for
                                                                                                         leachate
                                                                                                         (mg/L)
 Possible
 SW-846
method for
 leachate
Exemption
 levels for
leachate'
 (mg/L)
Cyanide (amenable)	      57-12-5
2,4-Dichlorophenoxyacetic acid (2,4-D)	     94-75-7
ODD	     72-54-8
DDE   	     72-55-9
DDT.        	     50-29-3
Diallate    	   2303-16-4
Dibenz(a,h)anthracene	      53-70-3
1,2-Dibromo-3-chloropropane	     96-12-8
Dibromomethane (methylene bromide)	     74-95-3
1,2-Dichlorobenzene     	      95-50-1
1,4-Dichlorobenzene   	    106-46-7
3,3'-Dichlorobenzidme   	     91-94-1
Dichlorodifluoromethane	      75-71-8
1,1-Dichloroethane   	     75-34-3
1,2-Dichloroethane	     107-06-2
1 1-Dichloroethylene       	     75-35-4
cis-1,2-Dichloroethylene	    156-60-5
trans-1,2-Dichloroethylene	     156-60-5
Dichloromethane (Methylene Chloride)  	     75-09-2
2,4-Dichlorophenol	      	     120-83-2
1,2-Dichloropropane	      78-87-5
1,3-Dichloropropene	     542-75-6
Dieldnn  	     60-57-1
Diethyl  phthalate	      84-66-2
Diethylstibestrol  	     56-53-1
Dimethoate	     60-51-5
3,3'-Dimethoxybenzidme	     119-90-4
7,12-Dimethylbenz(a)anthracene	     57-97-6
3,3'-Dimethylbenzidme	    119-93-7
2,4-Dimethylphenol	    105-67-9
Dimethyl phtalate 	    131-11-3
1,3-Dimtrobenzene	  25154-54-5
2,4-Dimtrophenol 	      51-28-5
2,4-Dimtrotoluene	    121-14-2
2,6-Dmitrotoluene	    606-20-2
Di-n-butyl phthalate	      84-74-2
Di-n-octyl phthalate  	    117-84-0
1,4-Dioxane	    123-91-1
2378 TCDDioxm 	   1746-01-6
2378 PeCDDioxms	
2378 HxCDDioxms	
2378 HpCDDioxms	
OCDD	   3268-87-9
Diphenylamme   	    122-39-4
 1,2-Diphenylhydrazme	    122-66-7
Disulfoton	    298-04-4
Endosulfan	    115-29-7
Endrm	      72-20-8
Epichlorohydnn	    106-89-8
2-Ethoxyethanol 	    110-80-5
 Ethyl acetate	    141-78-6
 Ethylbenzene	    100-41-4
 Ethyl ether   	     60-29-7
 Ethyl methacrylate 	     97-63-2
Ethyl methanesulfonate  	     62-50-0
Ethylene  dibromide	    106-93-4
Famphur 	     52-85-7
Fluoranthene	    206-44-0
Fluorene	     86-73-7
Formic acid	     64-18-6
Furan  	    110-00-9
2378TCDFuran	  51207-31-9
 12378  PeCDFuran  	
23478  PeCDFuran  	  57117-31-4
2378 HxCDFurans	
2378 HpCDFurans	
OCDF    	
 Heptachlor	     76-44-8
 Heptachlor epoxide	   1024-57-3
 Hexachlorobenzene	    118-74-1
 Hexachloro-1,3-butadiene	     87-68-3
 alpha-HCH	    319-84-6
 beta-HCH	    319-85-7
 Hexachlorocyclopentadiene 	      77-47-4
                  1000
                   800
                     5
                     3
                     3
                    20
                   .02
                    .8
                   800
                  1000
                    50
                     2
                  1000
                  1000
                    10
                     2
                   800
                  1000
                   100
                   200
                    20
                     6
                   .07
                  1000
                 2E-4
                    20
                    80
                   005
                     1
                  1000
                  1000
                     8
                   200
                     2
                    .2
                  1000
                  1000
                   100
                 7E-6
                 1E-5
                 7E -5
                 7E -4
                 7E-3
                  1000
                     1
                     3
                     4
                    20
                   100
                  1000
                   100
                  1000
                  1000
                  1000
                  0004
                   0.01
                     3
                  1000
                  1000
                  1000
                    80
                 7E-5
                  1E-4
                  1E-5
                 7E-5
                 7E-4
                 7E-3
                    02
                    0.1
                    07
                    10
                    0.2
                    0.6
                   600
                    .04
                      1
                    007
                   .003
                    008
                     .7
                     02
                    005
                    005
                    .01
                   .005
                      1
                   .005
                  7E-4
                    005
                   .005
                    005
                    005
                   .005
                     .7
                    005
                   .005
                    001
                     .7
                      3
                     .1
                      7
                      7
                     .7
                     .7
                      7
                      3
                      3
                     .7
                     .7
                      7
                     .7
                     .1
                  1E -6
                  1E-6
                 2.5E -6
                 2.5E -6
                  5E-6
                      7
                      3
                     .04
                    .009
                    004
                      .1
                      1
                      1
                    .005
                      1
                    .005
                      1
                    .005
                      1
                      .7
                      .1
                      .2
                      .1
                  1E-6
                  1E-6
                  1E-6
                 2.5E -6
                 25E -6
                  5E-6
                    .002
                     .06
                    .004
                    005
                    002
                    004
                      .2
                  9010
                  8150
                  8080
                  8080
                  8080
                  8270
                  8310
                  8260
                  8260
                  8260
                  8260
                  8270
                  8260
                  8021
                  8260
                  8260
                  8260
                  8260
                  8240
                  8270
                  8260
                  8240
                  8080
                  8270
                  8270
                  8141
                  8270
                  8270
                  8270
                  8270
                  8270
                  8330
                  8270
                  8270
                  8270
                  8270
                  8270
                  8260
                  8290
                  8290
                  8290
                  8290
                  8290
                  8270
                  8270
                  8141
                  8080
                  8080
                  8010
                  8260
                  8240
                  8260
                  8240
                  8240
                  8270
                  8260
                  8270
                  8270
                  8310
                  8015
                  8240
                   8290
                   8290
                   8290
                   8290
                   8290
                   8290
                   8080
                   8080
                   8121
                   8260
                   8080
                   8080
                   8121
                     2
                     .7
                   .001
                   .001
                   .001
                   006
                   .003
                   002
                     4
                     6
                    .75
                  8E-4
                    70
                    40
                    05
                    .07
                     .7
                     1
                    05
                     1
                    05
                   .002
                  2E-5
                   300
                  7E-8
                    07
                    03
                  1E-5
                  4E-5
                     7
                   400
                    .04
                     .7
                  5E-4
                  5E-4
                    40
                     7
                    .03
                  5E-7
                  4E-9
                  2E -8
                  2E-7
                  2E-6
                     9
                  4E-4
                    .01
                    02
                    02
                    .04
                    100
                   300
                     7
                    70
                    30
                  1E-6
                  5E-4
                   001
                     10
                     10
                     70
                    04
                  2E-8
                  4E-8
                  4E-9
                  2E-8
                  2E-7
                  2E-6
                  0.004
                  0002
                   0.01
                  0004
                  6E-5
                  2E-4
                    0.5
                    .04
                   002
                 1E-4
                 4E-5
                 1E -4
                    .01
                 3E-4
                 3E-5
                   .005
                    .01
                   .005
                    .02
                   005
                 7E-4
                   .005
                   .005
                   005
                   .005
                   005
                    01
                   .005
                   .005
                 2E -5
                    01
                    02
                   003

                    01
                    01
                    .01
                    .01
                   .004
                    .05
                    .01
                    01
                    .01
                    01
                     .1
                 1E-8
                 1E-8
                2.5E -8
                2.5E -8
                 5E-8
                    01
                    01
                 7E-4
                 1E-4
                 6E-5
                     .1
                      1
                     .1
                    005
                     .1
                    005
                   0.02
                 3E-4
                   002
                   001
                  0002
                    0.2
                    0.1
                 1E-8
                 1E-8
                  1E -8
                2.5E -8
                2.5E -8
                 5E-8
                 3E-5
                 8E-4
                 6E-5
                  0.005
                 3E-5
                 6E-5
                  0.002
      9010
      8150
      8080
      8080
      8080
      8270
      8310
      8011
      8260
      8260
      8260
      8270
      8260
      8021
      8260
      8260
      8260
      8260
      8240
      8270
      8260
      8240
      8080
      8270
      8270
      8141
      8270
      8270
      8270
      8270
      8270
      8330
      8270
      8270
      8270
      8270
      8270
    12 8260
      8290
      8290
      8290
      8290
      8290
      8270
      8270
      8141
      8080
      8080
    12 8010
    12 8260
      8240
      8260
      8240
      8240
      8270
      8011
      8270
      8270
      8310
      8015
      8240
      8290
      8290
      8290
      8290
      8290
      8290
      8080
      8080
      8121
      8260
      8080
      8080
      8121
       20
         7
         1
        .1
        .1
        .6
       03
       .02
       40
       60
       7.5
       .08
       700
       400
         5
        .7
         7
        10
        .5
        10
         5
         2
      .002
      3000
     7E-6
        .7
         3
      .001
      .004
        70
      4000
        .4
         7
       .05
       .05
       400
        70
         3
     5E-6
     4E -7
     2E-6
     2E-5
     2E-4
        90
        04
         .1
         .2
         .2
         4
      1000
      3000
        70
       700
       300
     1E-4
       .005
         .1
       100
       100
      7000
         4
     2E-6
     4E-6
     4E-7
     2E-6
     2E-5
     2E-4
       .04
       .02
         .1
         4
       .006
        02
         5

-------
21512
Federal Register / Vol. 57,  No.  98  / Wednesday, May 20, 1992 /  Proposed Rules
                                 APPENDIX XI—CBEC FOR MEDIA—Continued


Common name '
Hexachloroethane 	
Hexachlorophene 	
lndeno(1 ,2,3-cd)pyrene 	
Isobutyl alcohol 	
Isophorone 	
Kepone.. 	 	
Lead (and compounds N O S ) ...
Lmdane (gamma-HCH) 	
Mercury (and compounds N O S ) . 	
Methacrylomtrile 	 	 	
Methanol 	
Methoxychlor 	
3-Methylcholanthrene 	 	
Methyl ethyl ketone
Methyl isobutyl ketone . ... 	
Methyl methacrylate
Methyl parathion... . 	 	
Naphthalene ... 	
2-Naphthylamme ... . 	
Nickel (and compounds N 0 S )
Nitrobenzene . ...
2-Nitropropane 	
N-Nitroso-di-n-butylamme 	
N-Nitaroso-diethylamme
N-Nitrosodimethylamme
N-Nitrosodiphenylamine 	
N-Nitrosodi-n-propylamme . .. .
N-Nitrosomethylethylamme
N-Nitrosopiperidme
N-Nitrosopyrrohdme
Octamethyl pyrophosphoramide .
Parathion ....
Nentachlorobenzene
Pentachloronitrobenzene (PCNB)
Pentachlorophenol . .. .
Phenol . .
Phenylenediamme /10 	
Phorate
Phtalic anhydride . 	
Polychloninated biphenyls .
Pronamide
Pyrene 	
Pyridnne
Safrole
Selenium (and compounds N.O.S )
Silver (and compounds N O S )
Strychnine and salts
Styrene ..
1 ,2,4,5-Tetrachlorobenzene
1,1,1 ,2-Tetrachloroethane
1,1,2,2-Tetrachloroethane . .
Tetrachloroethylene
2,3,4,6-Tetrachlorophenol
Tetraethyl dithiopyrophosphate
Thallium (and compounds N 0 S)
Toleune
2,4-Toleuenediamine
2,6-Toleuenediamine
o-Toluidme .... ... ...
p-Toluidme
Toxaphene ....
Tribromomethane (Bromoform)
1 ,2,4-Tnchlorobenzene
1,1,1-Tnchloroethane
1,1,2-Tnchloroethane ...
Tnchloroethylene 	
Trichlorofluoromethane
2,4.5-Tnchloropnenol
2,4,6-Tncnlorophenol 	
2,4,5-Trichlorophenoxyacetic acid 	
2,4,5-TP (Silvex) . . . .
1 ,2,3-Tnchloropropane .
1 ,1 ,2-Tnchloro-1 ,2,2-trifluoroethane
sym-Trinitrobenzene

Chemical
abstract
No.2
67-72-1
70-30-4
193-39-5
78-83-1
78-59-1
143-50-0
7439-92-1
58-89-9
7439-97-6
126-98-7
67-56-1
72-43-5
56-49-5
78-93-3
108-10-1
80-62-6
298-00-0
91-20-3
91-59-8
7440-02-0
98-95-3
79-46-9
924-16-3
55-18-5
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
152-16-9
56-38-2
608-93-5
82-68-8
87-86-5
108-95-2

298-02-2
85-44-9
1 336-36-3
23950-58-5
129-00-0
110-86-1
94-59-7
7782-49-2
7440-22-4
57-24-9
100-42-5
95-94-3
630-20-6
79-34-5
127-18-4
935-95-5
3689-24-5
7440-28-0
108-88-3
95-80-7
823-40-5
95-53-4
1 06-49-0
8001-35-2
75-25-2
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
93-76-5
93-72-1
96-18-4
354-58-5
99-35-4

Exemption
levels for
soils 3 (mg/
kg)
80
20
10
1000
300
02
500 /9
9
20
8
1000
400
.04
1000
1000
1000
20
1000
1
1000
40
1
2
.007
02
200
2
05
03
5
200
500
60
4
9
1000
20
20
1000
10 /9
1000
1000
80
e
400
400
20
1000
20
40
6
800
1000
40
6
1000
4
1000
5
6
1
100
800
1000
20
100
1000
1000
100
800
600
500
1000
4


EQC for
soils * (mg/
kg)
001
3
03
-)
.7
1
30
.02
.1
03
•]
1
7
.1
1
05
.7
.005
.7
10
7
1
7
1
7
7
7
7
1
3
10
.7
.03
1
3
7
7
02
7
04
7
7
005
7
50
5
3
1E -4
006
005
5E -5
005
7
7
30
.005
1
7
.7
.3
2
005
.7
005
.005
.005
005
7
7
2
2
005
005
7


Possible
SW-846
method for
soils 5
8121
Dp7f)
O£ f\J
8310
8240
8270
8270
6010
8121
7470
8240
oo^n
O£1U
onan
OvOU
8270
8240
8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270
8080
8270
8270
8240
8270
6010
6010
8270
8021
8121
8260
8021
8260
8270
8270
6010
8260
8270
8270
8270
8270
8080
8260
8270
8260
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270
Tier 1

Exemption
levels for
leachate «
(mg/L)
0.03
0<
. i
0.004
mn
I UU
09
7E-6
15
002
02
04
onn
£\J\J
A
1E-5
20
20
30
09
10
4E -4
1
2
4E-5
6E-5
2E-6
7E-6
07
5E-5
2E-5
9E-6
2E-4
7
2
.3
001
.01
200
.007
.07
700
005
30
10
4
002
5
2
1
1
1
01
.002
05
10
2
.02
10
1E-4
70
001
002
03
04
09
2
.05
.05
100
40
.03
4
5
2
1E4
02


EQC for
leachate
(mg/L)
2E -5
n nc
u.uo
4E -4
04
1
01
.02
01
2E-4
002
03

nno
.\J\JC.
01
.1
1
005
01
.005
01
2
01
1
01
.02
01
01
.01
.01
.02
04
2
01
4E-4
02
05
01
01
4E-4
1
73-4
01
.01
005
.01
.02
002
.04
1E-4
1E-4
005
5E-5
005
01
01
01
005
02
02
.01
.01
.002
005
01
.005
.005
005
.005
01
01
002
002
005
005
01

Tier 2
Possible
SW-846
method for
leachate
8121
Q97H
oc/U
8310
1 2 QO/in
O£4U
8270
8270
7421
8121
7470
12 8240
QO/fn
O£4U
flrton
oUou
8270
12 8240
12 8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270 /11
8080
8270
8270
8240
8270
7740
7761
8270
8021
8121
8260
8021
8260
8270
8270
7841
8260
8270
8270
8270
8270
8080
8260
8260
8260
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270


Exemption
levels for
leachate '
(mg/L)
3

1
.04

1000
9
7E -4
1 5
02
.2
.4

2000
4
.001
200
200
300
g
100
.04
10
2
004
.006
2E -4
7E -4
7
005
002
9E-4
2E -2
7
20
3
1
1
2000
7
7
7000
.05
300
mn
I UU
4

5
20
1
10
1
1
.2
5
100
2
.2
100
.01
700
1
2
.3
4
9
20
.5
5
1000
400
3
40
5
20
1E 5
2

-------
                  Federal Register  / Vol.  57.  No. 98  /  Wednesday,  May  20,  1992  / Proposed Rules	21513
                                               APPENDIX XI—CBEC FOR MEDIA—Continued
            Common name '
Chemical
abstract
  No *
                                                                                                Tier 1
 Exemption
 levels for
soils 3 (mg/
    kg)
                                                                     EQC for
                                                                    soils 4 (mg/
                                                                       kg)
         Possible
         SW-846
        method for
          soils 5
       Exemption
        levels for
       leachate 6
         (mg/L)
                                                                                                                          Tier 2
                                                                 EQC for
                                                                 leachate
                                                                 (mg/L)
                      Possible
                      SW-846
                     method for
                      leachate
                     Exemption
                     levels for
                     leachate 7
                      (mg/L)
Tns(2,3-dibromopropyl)phosphate
Vanadium  	
Vinyl chloride (Chloroethene) .
Xylenes
Zinc (and compounds N O S.).
 126-72-7
7440-62-2
  75-01-4
1330-20-7
7440-66-6
         .1
       600
         6
      1000
      1000
   10
    5
2E -4
  005
    1
8270
6010
8021
8260
6010
3E-5
    2
   02
  100
   70
    2
   08
2E -4
  005
   02
8270
6010
8021
8260
6010
 004
  20
   .2
1000
 700
    1 Common names are those widely used in government regulations, scientific publications, and commerce, synonyms exist for many chemicals
    2 Chemical Abstracts Service registry number. Where "and compounds N.O S." is entered, all species of the metal are included
    3 Soils must be analyzed for all constituents on the CBEC list. If any of the constituent concentrations  exceed the CBEC, the contaminated soil fails the Tier 1
CBEC demonstration. The exemption concentrations are based on health-based numbers
    4 Exemption Quantitation Criteria (EQC)  When a specified exemption level is below its specified EQC, the exemption demonstration must achieve an actual
detection limit which is at least as low as the specified EQC.  In these cases, if the demonstration shows that the constituent cannot be quantified above the CBEC,
and the actual detection limit is equal to or below the EOC, the Agency will assume that the constituent is  not present at levels of regulatory concern If the actual
detection limit exceeds the EQC for the specified constituent,  the demonstration is considered invalid
    5 Possible analytical methods refer to procedure numbers used in EPA Report SW-846 "Test Methods for Evaluating Solid Waste", Third  Edition,  November
1986,  as revised, December 1987, for the  methods used. Methods listed are believed  to be capable of routinely determining  concentrations of the  respective
analytes at the EQC or  below  Other methods are permissible if a laboratory can demonstrate it is capable of achieving the EQCs for given analytes, while still
adhering to the quality control guidance given  in Chapter  One of  SW-846  Operators must report the concentrations actually determined by the method  chosen,
even if they are below the EQC.
    • Groundwater and SW-846 Method 1311 leachate must  be analyzed for all constitutents on the exemption list  If any of the constituent concentrations exceed
the CBEC concentrations, the waste fails the Tier 1 CBEC demonstration The exemption concentrations are based on health-based numbers, a risk level of 10~6,
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 10
    7 Groundwater and SW-846 Method 1311 leachate must be analyzed for all constituents on the exemption list  If any of the constituent concentrations exceed
the CBEC concentrations, the wast fails the Tier 2 CBEC demonstration  The exemption  concentrations are based on health-based numbers, a risk level of 10~5,
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 100
    8 Benzotrichlonde is  hydrolytically unstable  Analyze for benzoic acid
    9 CBEC for soil is based on EPA policy decison
    10 CBEC concentrations are based on toxicity data for o-phenylenediamme  Method 8270 does not specify retention times for the three isomers, thus  the lowest
available toxicity data for the isomers is used as a worst-case scenario
    1' Phthalic anhydride is hydrolytically unstable  Analyze for phthalic acid.
    12 Indicates constituent should be analyzed via direct injection

                                                    APPENDIX XII—CBEC FOR WASTE
                               Common name1
                                    Chemical
                                     Abstract
                                      No.2
                                                                                                            Tier 1
                                      Exemption
                                       levels for
                                    leachate3 (mg/
                                          L)
                                                                                                            EQC for
                                                                                                           leachate4
                                                                                                            (mg/L)
                                               Possible
                                               SW-846
                                              method for
                                              leachate5
                                                                                                                                      Tier 2
                                              Exemption
                                              Levels for
                                              leachate6
                                               (mg/L)
Acenaphthene	     83-32-9
Acetone (2-propanone)	         67-41-1
Acetomtnle (methyl cyanide)	     .  .   .       75-05-8
Acetophenone	      98-86-2
Acrolem	     107-02-8
Acrylamide	     79-06-1
Acrylonitnle	    107-13-1
Aldrin	    309-002-2
Aniline (benzeneamine) . .  .     .     	      62-53-3
Antimony (and compounds N.O.S.) 	  7440-36-0
Aramite	    140-57-8
Arsenic (and compound N.O.S) 	   7440-38-2
Barium (and compounds N.O.S)	  7440-39-3
Benz[a]anthracene	      6-55-3
Benzene	       71-43-2
Benzidme	    92-87-5
Benzo(b)fluoranthene  	       205-99-2
Benzo(a)pyrene	       50-32-8
Benzotrichlonde	         98-07-7
Benzyl alcohol	        100-51-6
Benzyl chloride	     100-44-7
Beryllium (and compounds  N.O.S)	  7440-41-7
Bis(2-chloroethyl) ether	      111-44-4
Bis(2-chloroisopropyl) ether	 39638-32-9
Bis(2-ethylhexyl)  phthalate  	       117-81-7
Bromodichloramethane 	     75-27-4
Bromomethane	     74-83-9
Butanol	    71-36-3
Butyl benzyl phthalate	    85-68-7
2-sec-Butyl 4, 6-dinitrophenol (Dinoseb)	       88-85-7
Cadmium (and compounds N O.S.)	    7440-43-9
Carbon disulfide	     75-15-0
Carbon tetrachlonde	    56-23-5
Chlordane	      57-74-9
p-Chloroamline	    106-47-8
                                                           20
                                                           40
                                                            2
                                                           40
                                                            7
                                                        8E-5
                                                        6E -4
                                                        2E-5
                                                         0.06
                                                            1
                                                          .01
                                                            5
                                                           20
                                                         .001
                                                           05
                                                        2E-6
                                                         002
                                                         002
                                                        3E-5
                                                         100
                                                         002
                                                           01
                                                        3E-4
                                                         005
                                                          .04
                                                         003
                                                          05
                                                           40
                                                            1
                                                           07
                                                           05
                                                           40
                                                          .05
                                                           02
                                                            1
                                                          001
                                                             1
                                                             1
                                                           01
                                                          005
                                                            .1
                                                          005
                                                         4E-5
                                                           01
                                                           03
                                                           02
                                                           01
                                                           02
                                                         1E -4
                                                          .005
                                                           .03
                                                         2E -4
                                                         2E-4
                                                         6E-5
                                                           .02
                                                          002
                                                          .003
                                                          003
                                                           01
                                                           .01
                                                          .005
                                                          005
                                                             1
                                                           .01
                                                         7E -5
                                                          .001
                                                            .1
                                                          .005
                                                         1E-4
                                                           .02
                                                    8270
                                                    8240
                                                  10 8240
                                                    8270
                                                  ' o 8240
                                                  10 8260
                                                  10 8240
                                                    8080
                                                    8270
                                                    7041
                                                    8270
                                                    7060
                                                    6010
                                                    8310
                                                    8260
                                                    8270
                                                    8310
                                                    8310
                                                 8121 n
                                                    8270
                                                    8121
                                                    6010
                                                    8110
                                                    8270
                                                    8270
                                                    8260
                                                    8260
                                                    8240
                                                    8270
                                                    8150
                                                    7131
                                                  10 8240
                                                    8260
                                                    8080
                                                    8270
                                                    200
                                                    400
                                                     20
                                                    400
                                                     70
                                                   0.008
                                                     .06
                                                    .002
                                                      6
                                                      1
                                                      1
                                                      5
                                                    200
                                                     .01
                                                      .5
                                                   2E-4
                                                     .02
                                                     .02
                                                    003
                                                   1000
                                                      .2
                                                      .1
                                                     03
                                                      .5
                                                      .4
                                                      .3
                                                      5
                                                    400
                                                     10
                                                      .7
                                                     05
                                                    400
                                                      .5
                                                      2
                                                     10

-------
21514	Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
                                 APPENDIX XII—CBEC FOR WASTE—Continued
Common name1
Chlorobenzene .. ..... 	



Chloroform . 	 	 	 	 	
Chloromethane (Methyl Chloride) 	 . 	
3-Chloropropene (allyl chloride) 	 	 - 	
Chrysene , .. .... 	 	 •• •• 	
Cresols 	 .... • - •- 	

Cyanide (amenable) 	 ... 	
ODD
DDE 	
DDT 	 	


1 ,2-Dibron)o-3-chloropropane 	 	 .... 	
Dibromomethane (methylene bromide) ... .... 	 	
1 ,2-Dichlorobenzene . 	 . 	
3,3' -Dichlorobenzidme . 	 ••• • 	
Dichlorodifluoromethane ... 	 .....
1,1-Dichloroethane 	 	 	
1 ,2-Dichloroethane .... 	 . . •• • 	
1,1-Dichloroethylene 	 ... 	 • 	
cis-1,2-Dichloroethylene .. 	 ... 	
trans-1,2-Dichloroethylene 	
Dichloromethane (Methylene Chloride)
2,4-Dlchlorophenol 	 .. 	 ••• • • •
1 ,2-Dichloropropane ... 	 .... .. 	
1 ,3-Dichloropropene . ... 	 . ... • •••
Diethyl phthalate .... 	 	 . ........
Diethylstilbestrol •• •• ••• •
Dimethoate 	 ... . 	 	
3,3' -Dinnethoxybenzidine 	 . •• ...
7,12-Dimethylbenz(a)anthracene ... ... ... ...
3,3' -Dimethylbenzidme ... ... .... . . ...
Dimethyl phthalate ....... .. .....
1 ,3-Dmitrobenzene . .
2,4-Dimtrophenol 	
2,4-Dmrtrotoluene 	
2,6-Dmintrotoluene 	 • •
Di-n-butyl phthalate. . .... 	
Di-n-octyl phthalate
1,4-Dioxane 	 ... . • • •
2378 TCDDioxin 	 ... . . . ....
2378 PeCDDioxms 	 ... ....
2378 HxCDDioxms ... 	
2378 HpCDDioxms 	 .. . . . • • •
OCDD 	
Diphenylamine 	 	 	 	 	
Disulfoton 	 	 ... • 	
Endosulfan 	 	 	 	 	

2-Ethoxyethanol 	 	 .... 	











1P378 PeCDFuran 	

Chemical
Abstract
No.2
108-90-7
510-15-6
126-99-8
124-48-1
67-66-3
74-87-3
95-57-8
107-05-1
7440-47-3
218-01-9
1319-77-3
98-82-8
57-12-5
94-75-7
72-54-8
72-55-9
50-29-3
2303-16-4
53-70-3
96-12-8
74-95-3
95-50-1
106-46-7
91-94-1
75-71-8
75-34-3
107-06-2
75-35-4
1 56-60-5
156-60-5
75-09-2
120-83-2
78-87-5
542-75-S
60-57-1
84-66-2
56-53-1
60-51-5
119-90-4
57-97-6
119-937
105-67-9
131-11-3
25154-54-5
51-28-5
121-14-2
606-20-2
84-74-2
1 1 7-84-0
123-91-1
1746-01-6
3268-87-9
1 22-39-4
122-66-7
298-04-4
115-29-7
72-20-8
106-89-8
110-80-5
141-78-6
100-41-4
60-29-7
97-63-2
62-50-0
106-93-4
52-85-7
206-44 0
86-73-7
64-18-6
110-00-9
51207-31-9
Tier 1
Exemption
levels for
leachate3 (mg/
L)
1
7
7
004
.06
.03
2
.02
1
002
20
10
2
07
.001
.001
.001
.006
.003
.002
4
6
.75
8E-4
70
40
.05
07
7
1
05
1
05
.002
2E-5
300
7E -8
07
.03
1E -5
4E-5
7
400
04
7
5E-4
5E -4
40
7
.03
5E-7
4E-9
2E-8
2E-7
2E -6
9
4E -4
01
02
02
04
100
300
7
70
30
1E-6
5E-4
01
10
10
70
2E-8
4E-8
EQC for
leachate4
(mg/L)
005
.01
.005
.005
005
005
01
005
.01
002
01
005
04
.002
1E-4
4E-5
1E-4
.01
3E-4
3E-5
.005
01
005
02
.005
7E -4
.005
.005
.005
005
005
01
005
.005
2E-5
01
02
003
1
01
01
01
01
004
05
01
01
01
.01
1
1E -8
1E-8
2.5E -8
2.5E -8
5E-8
01
01
7E-4
1E-4
6E-5
005
.005
.02
3E -4
.02
.01
.002
1E-8
1E-8
Possible
SW-846
method for
leachate5
8260
8270
8260
8260
8260
8260
8270
8240
7191
8310
8270
8240
9010
8150
8080
8080
8080
8270
8310
8011
8260
8260
8260
8270
8260
8021
8260
8260
8260
8260
8240
8270
8260
8240
8080
8270
8270
8141
8270
8270
8270
8270
8270
8330
8270
8270
8270
8270
8270
10 8260
8290
8290
8290
8290
8290
8270
8270
8141
8080
8080
'°8010
'"8260
8240
8260
8240
8240
8270
8011
8270
8270
8310
i°8015
8240
8290
8290
Tier 2
Exemption
Levels for
leachate6
(mg/L)
10
70
70
4
6
3
20
2
10
02
200
100
20
7
1
.1
1
.6
03
.02
40
60
75
.08
700
400
.5
.7
7
10
.5
10
.5
2
002
3000
7E -6
7
3
001
004
70
4000
A
7
.05
05
40C
7C
5E-f
4E--
2E-e
2E -I
2E-'
9C
0'
i
100(
300(
7
70
30
1E-
.00
10
10
700
2E-
4E-

-------
Federal Register / Vol. 57, No. 98 /  Wednesday, May 20, 1992 / Proposed Rules	21515
                    APPENDIX XII—CBEC FOR WASTE—Continued

Common name1
23478 PeCDFuran
2378 HxCDFurans .
2378 HpCDFurans .
OCDF ....
Heptachlor .....
Heptachlor epoxide
Hexachlorobenzene
Hexachloro-1 ,3-butadiene
alpoha-HCH
beta-HCH .
Hexachlorocyclopentadiene
Hexachloroethane
Hexachlorophene
lndeno(1 ,2,3-cd)pyrene
Isobutyol alcohol 	
Isophorone 	
Kepone 	 .... . . .
Lead (and compounds N O S ) ... . . . ...
Lmdane (gamma-HCH) . . .... ....
Mercury (and compounds N O S ) . . . . .
Methacrylonitnle . ... 	
Methanol 	 	 	 ....
Methoxychlor . 	
3-Methylcholanthrene 	 . . .
Methyl ethyl ketone ...
Methyl isobutyl ketone ...
Methyl methacrylate
Methyl parathion
Naphthalene 	
2-Naphthylamine
Nickel (and compounds N O S )
Nitrobenzene 	
2-Nitropropane 	 ....
N-Nitroso-di-n-butylamme .....
N-Nitroso-diethylamine
N-NitrosodimGthylamin6
N-Nitrosodiphenylamme 	 . ...
N-Nitrosodi-n-propylamme 	
N-Nitrosomethylethylamme 	
N-Nitrosopipendme 	
N-Nitrosopyrrohdme ........
Octamethyl pyrophosphoramide
Parathion 	 	 . . .
Pentachlorobenzene . .. ..... .... ....
Pentachloronitrobenzene (PCNB) . . . . . ...
Pentachlorophenol 	 ....
Phenol 	 . . .
Phenylenediamme /8 	 ...
Phorate
Phthalic anhydride 	 ...
Polychlonnated biphenyls 	
Pronamide ....
Pyrene 	 	 . .
Pyridine
Safrole
Selenium (and compounds N O.S ) . . . .
Silver (and compounds N.O S.) 	 . . . ...
Strychnine and salts . . 	 . . .. ...
Styrene 	 	
1 ,2,4,5-Tetrachlorobenzene 	 . . .
1,1,1,2-Tetrachloroethane 	 .. .. . . ..
1,1,2,2-Tetrachloroethane 	 . . . .
Tetrachloroethylene 	
234 6-Tetrachlorophenol
Tetraethyl dithiopyrophosophate 	 	
Thallium (and compounds N O S )
Toluene
2 4-Toluenediamine
2,6-Toluenediamme 	
o-Toluidine
p-Toluidine 	
Toxaphene 	 	
Tnbomomethane (Bromoform) 	
1 2,4-Trichlorobenzene 	
1.1.1-Trichloroethane 	 	

Chemical
Abstract
No2
57117-31-4
76-44-8
1024-57-3
118-74-1
87-68-3
319-84-6
319-85-7
77-47-4
67-72-1
70-30-4
193-39-5
78-83-1
78-59-1
143-50-0
7439-92-1
58-89-9
7439-97-6
126-98-7
67-56-1
72-43-5
56-49-5
78-93-3
108-10-1
80-62-6
298-00-0
91-20-3
91-59-8
7440-02-0
98-95-3
79-46-9
924-16-3
55-18-5
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
152-16-9
56-38-2
608-93-5
82-68-8
87-86-5
108-95-2
298 02 2
85-44-9
1336-36-3
23950-58 5
129-00-0
110 86 1
94 59 7
7782-49-2
7440-22-4
57-24-9
100-42-5
95-94-3
630-20-6
79-34-5
127-18-4
935 95 5
3689-24-5
7440-28 0
108-88 3
95 80 7
823-40-5
95 53 4
106-49-0
8001-35 2
75-25 2
120 82 1
71-55-6

Exemption
levels for
leachate3 (mg/
L)
4E -9
2E-8
2E -7
2E -6
004
002
01
004
6E -5
2E-4
5
03
1
004
100
09
7E-6
15
002
02
04
200
4
1E -5
20
20
30
09
10
4E -4
1
2
4E -5
6E-5
2E -6
7E 6
07
5E-5
2E -5
9E-6
2E-4
7
2
3
001
01
200
007
07
700
005
30
10
4
002
5
2
1
1
1
.01
002
05
10
2
02
10
1E 4
70
001
002
03
04
09
2
Tier 1
EQC for
leachate4
(mg/L)
1E-8
25E -8
25E -8
5E-8
3E-5
8E -4
6E-5
005
3E-5
6E-5
002
2E-5
05
4E -4
1
01
02
01
2E -4
002
03
1
002
01
1
1
005
01
005
01
2
01
1
01
02
01
01
01
01
02
04
2
01
4E -4
.02
.05
01
01
4E -4
1
7E -4
01
01
005
01
.02
002
04
1E-4
1E-4
005
5E-5
005
01
01
01
005
02
02
01
01
002
005
01
.005

Possible
SW-846
method for
leachate5
8290
8290
8290
8290
8080
8080
8121
8260
8080
8080
8121
8121
8270
8310
10 8240
8270
8270
7421
8121
7470
1(1 8240
8240
8080
8270
10 8240
""8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270 /9
8080
8270
8270
8240
8270
7740
7761
8270
8021
8121
8260
8021
8260
8270
8270
7841
8260
8270
8270
8270
8270
8080
8260
8260
R?BO
Tier 2
Exemption
Levels for
leachate6
(mg/L)
4E -7
2E -6
2E -5
2E -4
04
02
1
4
02
02
5
3
04
1000
9
7E -4
1 5
02
2
4
2000
4
001
200
200
300
9
100
004
10
2
004
006
2E -4
7E 4
7
005
002
9E-4
2E -2
7
20
3
1
.1
2000
7
7
7000
05
300
100
4
2
5
20
1
10
1
1
2
5
100
2
2
100
01
700

2
3


5fl

-------
21516          Federal  Register /  Vol.  57, No.  98  / Wednesday,  May  20.  1992  /  Proposed Rules
                                           APPENDIX XII—CBEC FOR WASTE—Continued

Common name1
1,1,2-Tnchloroethane 	 	
Tricnloroethylene 	
Tnchlorofluoromethane
2,4,5-Trichlorophenol 	
2,4,6-Tnchlorophenol 	
2,4,5-Tnchlorophenoxyacetic acid
2,4,5-TP (SUvex) 	
1 ,2 3-Tnchloropropane
1,1,2-Tnchloro-1,2,2-tnfluoroethane 	 	 	
sym-Tnnitrobenzene
Tns(2,3-dibromopropyl)phosphate 	 ... 	
Vanadium 	 ... . ... 	 	
Vinyl chloride (Chloroethene) . . .... .. ....
Xylenes 	 .... 	 	 ...
Zinc (and compounds N 0 S ) 	 .. 	

Chemical
Abstract
No.2
79-00-5
79-01 6
75 69-4
95-95 4
88-06 2
93-76 5
93 72 1
96 18 4
354-58-5
99-35 4
126-72-7
7440-62-2
75-01-4
1330-20-7
7440-66-6

Exemption
levels for
leachate3 (mg/
L)
05
05
100
40
03
4
5
2
1E 4
02
3E-5
2
02
100
70
Tier 1
EQC lor
leachate4
(mg/L)
005
005
005
01
01
002
002
005
005
01
2
08
2E-4
005
.02

Possible
SW-846
method for
leachate5
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270
8270
6010
8021
8260
6010
Tier 2
Exemption
Levels for
leachate9
(mg/L)
5
5
1000
400
3
40
5
20
1E 5
2
004
20
.2
1000
700
    1 Common names are those widely used in government regulations, scientific publications, and commerce, synonyms exist for many chemicals.
    2 Chemical Abstracts Service registry number Where "and compounds N O.S." is entered, all species of the metal are included
    3 Wastewater and SW-846 Method  1311 Leachate must be analyzed for all constituents on the exemption list  If any of the constituent concentrations exceed
the CBEC concentrations, the waste fails the Tier 1  CBEC demonstration  The exemption concentrations are based on health-based numbers, a risk level of 10~6,
and Maximum Contaminant Levels and include a  dilution attenuation factor (DAF) of 10.
    * Exemption  Quantification Criteria (EQC). when a specified exemption level is below its specified EQC, the exemption demonstration must achieve an actual
detection limit which is at least as low as the specified EQC In thes cases, if the demonstration shows that the constituent cannot be quantified above the CBEC,
and the actual detection limit is equal to or below the EQC, the Agency will assume that the constituent is  not present at levels of regulatory concern.  If the actual
detection limit exceeds the EQC for the specified constituent, the demonstration is considered invalid
    5 Possible analytical methods refer to procedure numbers used in EPA Report SW-846 "Test Methods for Evaluating Solid Waste", Third Edition, November
1986,  as revised, December 1987, for  the methods used. Methods listed are believed to be  capable  of routinely determining concentrations of  the respective
analytes at the EQC or below. Other methods are permissible if  a laboratory  can demonstrate it is capable of achieving the EQCs for given analytes, while  still
adhering to the quality control guidance given in Chapter One of SW-846 Operators must report the concentrations actually determined by the method chosen,
even if they are below the EQC.
    6 Wastwater  and SW-846 Method 1311 Leachate must be analyzed for all constituents on  the exemption list  If any of the constituent concentrations exceed
the CBEC concentrations, the waste fails the Tier 2 CBEC demonstration  The exemption concentrations are based on health-based numbers, a risk level of 10~5,
and Maximum Contaminant Levels and include a  dilution attenuation factor (DAF) of 100.
    7 Benzotnchloride is hydrolyttcally unstable Analyze for benzoic acid
    8 CBEC concentrations are based on toxicity data for o-phenylendediamme Method  8270 does not  specify retention times for  the  three isomers, thus  the
lowest  available toxicity data for the isomers is used  as a worst-case scenario
    9 Phthalic anhydride is hydrolytically unstable Analyze for phthlic acid
    10  Indicates constituent should be analyzed via direct injection
 Appendix XIII Sampling Requirements

 1. Environmental media
   (i) A sampling and analysis plan must be
 prepared that (1) describes the proposed
 exemption demonstration, (2) conforms to the
 description of such plans in chapter one of
 SW-846, (3) describes how sample
 representativeness will be determined, (4)
 discusses any modifications to the analytical
 protocols listed in appendix XI and (5)
 describes the facility's quality assurance
 program.
   (ii) Representative samples of the
 contaminated media must be analyzed
 according to the analytical methods specified
 in appendix XI to this part and the facility's
 sampling and analysis plan prior to
 management of the media as non-hazardous
 to determine whether the media meets the
 concentration-based exemption criteria levels
 specified in appendix XI. Total constituent
 analyses of these samples must be conducted
 for  each of the constituents in appendix XI. In
 addition, for media containing greater than
 0.5% solids as measured in step 7.1.1
 (Preliminary determination of percent solids)
 of method 1312 (the Synthetic Precipitation
 Leaching Procedure), the samples must be
 extracted using method 1312, and the
 resultant extract analyzed for each of the
 constituents in appendix XI. The
 demonstration must include enough
 representative composite samples taken over
a period of time and area sufficient to
represent the temporal and spatial variability
or uniformity of the media:
  (A) Contaminated Soils/Sediments:
Samples  must be collected in such a manner
as to define the boundaries of contamination.
When the area of contamination is less than
40,000 square feet, divide the unit into at least
four sections of equal area. Collect five
random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section. When the
area of contamination is greater than 40,000
square feet, divide the unit into equal
sections  of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
  (B) Contaminated Ground Water from
Pump and Treat Operations: Collect a
minimum of four time-composite samples
(each composite should consist of four to five
grab samples) collected over a period of at
least one month.
  (C) Contaminated In-place Ground Water:
Collect four rounds of samples from all
ground-water monitoring wells in an EPA- or
state-approved ground-water monitoring
system that is designed to characterize the
lateral and vertical extent and nature of the
ground-water contamination over a period of
one year.
  (D) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support QA/
QC analyses.
  (iii) A sampling record must be maintained
which includes:
  (A) Name, address and RCRA ID number of
facility;
  (B) Names and qualifications of persons
sampling the media;
  (C) Date of sampling;
  (D) Description of the unit or sampling area
an explanation of why the samples are
representative of the temporal and spatial
variability of the media;
  (E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
  (F) Discussion of process and treatment
operating parameters at the time of sampling.
  (iv) A testing record must be maintained
which includes:
  (A) Name and address of laboratory
analyzing the media;
  (B) Names and qualifications of analysts;
  (C) Date of analysis;
  (D) Description of sample preparation
techniques used for extraction of samples;
  (E) Description of analytical methods and
QA/QC procedures; (F) Type and model
number of instruments used in analytical
procedures; and
  (G) Analytical testing and QA/QC results.
  (v) Sampling and analysis of media must be
repeated annually for the first two years the

-------
               Federal  Register /  Vol. 57, No.  98 / Wednesday,  May  20,  1992  /  Proposed  Rules         21517
exemption is claimed and every three years
thereafter, and when process or operating
changes (including upsets] occur which could
affect the medium's composition.
  2, Waste
  (i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in chapter one of
SW-846, (3) describes how sample
representativeness will be determined, (4)
discusses any modifications to the analytical
protocols listed in appendix 11, and (5)
describes the facility's quality assurance
program.
  (ii) Representative samples of the waste
must be analyzed according to the analytical
methods specified in appendix 12 to this part
and the facility's sampling and analysis plan
prior to management of the waste as non-
hazardous waste to determine whether the
waste meets the concentration-based
exemption criteria levels specified in
appendix 12. The samples must be extracted
using the Toxicity Characteristic Leaching
Procedure, method 1311, and the resultant
extract analyzed for each of the constituents
in appendix 12. The demonstration must
include enough representative composite
samples taken over a period of time and area
sufficient to represent the temporal and
spatial  variability or uniformity of the waste:
  (A) Pipes  and Other Process Discharges:
Collect a minimum of four time-composite
samples (each composite should consist of
four to five grab samples) collected over a
period of at least one month.
  (B) Drums: Collect a minimum of four single
core samples from drums filled over at least a
one-month period.
  (C) Land Disposal Units (less than 40,000
square feet): Divide the unit into at least four
sections of equal area. Collect five random or
fixed transect full-core subsamples from each
section. Composite subsamples from each
section.
  (D) Land Disposal Units (greater than
40,000 square feet): Divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
  (E) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
  (F) Sampling and analysis of wastes must
be repeated annually for the first two years
and every three years thereafter, and when
process, operating or treatment changes
(including upsets) occur which could affect
the waste's  composition.
  (iii) A sampling record must be maintained
which includes:
  (A) Name, address, and RCRA ID number
of facility;
  (B) Names and qualifications of persons
sampling the waste;
  (C) Date of sampling;
  (D) Description of the unit or sampling area
and an explanation of why the  samples are
representative of the temporal and spatial
variability of the waste;
  (E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
  (F) Discussion of process and treatment
operating parameters at the time of sampling.
  (iv) A testing record must be maintained
which includes:
  (A) Name and address of laboratory
analyzing the waste;
  (B) Names and qualifications of analysts;
  (C) Date of analysis;
  (D) Description of sample preparation
techniques used for extraction of samples;
  (E) Description of analytical methods and
QA/QC procedures;
  (F) Type and model number of instruments
used in analytical procedures; and
  (G) Analytical testing and QA/QC results.

PART 262—STANDARDS  APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE

  8. The authority citation  for part 262
continues to read as follows:
  Authority: 42 U.S.C. 6906, 6912, 6922, 6923,
6924, 6925, and 6937.
  9. In § 262.20, paragraph (b) is revised
to read as follows:

§ 262.20  General requirements.
*****
  (b] A generator must designate on the
manifest one facility which is permitted
to handle the waste described  on the
manifest. In the case of wastes claiming
an exemption under 40 CFR 261.4(b)(14)
or media claiming an exemption under
40 CFR 261.4(a)(13), a generator must
designate the facility identified in its
exemption notification.

PART 264—STANDARDS  FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES

  10. The authority citation for part 264
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6924 and
6925.
  11. Section 264.1 is amended by
adding paragraph (g)(ll) to read as
follows:

§ 264.1  Purpose, scope and applicability.
  (g) . * , *
  (11) The owner or operator of a
facility that accepts wastes claiming an
exemption under 261.4(b)(14), so long as:
  (A) The owner or operator only
accepts for disposal manifested wastes
claiming an exemption under
261.4(b)(14) exclusively or  in addition to
solid wastes;
  (B) The owner or operator stores
manifested waste claiming an
exemption under 261.4(b}(14) in
accordance with the requirements of 40
CFR 262.34(a)(l) no longer than 10 days
prior to disposal; and
  (C) The owner or operator disposes of
the waste claiming an exemption under
261.4(b)(14) in a unit or units meeting the
criteria of part 258, subpart D.
PART 268—LAND DISPOSAL
RESTRICTIONS

  12. The authority citation for part 268
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921, and
6924.

  13. Section 268.1 is amended by
adding a new paragraph (c)(4) to read as
follows:

§ 268.1  Purpose, scope and applicability.
*****

  (c) * * *
  (4) Where the waste is exempted from
subtitle C regulation under § 261.4
(a)(ll) or (b)(13).
*****

[Option 2]

PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL

  1. The authority citation for part 260
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921-
6927, 6930, 6934, 6935, 6937, 6938, 6939, and
6974.

  2. In 260.10, add the following
definitions in alphabetical order:

§ 260.10  Definitions.
*****

  Dilution means the addition of
materials, liquid or non-liquid, to
increase the volume of a given waste or
media to reduce constituent
concentrations.
*****

  Media means any naturally-occurring
soil or ground water.

  Soil means unconsolidated earth
material composing the superficial
geologic strata (materials overlying
bedrock), consisting of clay, silt, sand,
or gravel size particles (sizes as
classified by the U.S. Soil Conservation
Service), or is a mixture of such
materials with  other liquids, sludges, or
solids, and is inseparable by simple
mechanical removal processes.
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, and
6922.

-------
21518	Federal Register / Vol. 57, No. 98 / Wednesday, May 20. 1992  /  Proposed Rules
  2. In § 261.3, paragraph (e) is removed,
and paragraphs (a)(2)(iv)(F) and
(c)(2)(ii)(C) are added to read as follows:

§ 261.13  Definition of hazardous waste.
  (a)* * *
  (2) * * *
  (iv) *  *  *
  (F) Waste that contains hazardous
constituents all of which have regulatory
levels established under table 1 of 40
CFR 261.24. Generators which have
wastes regulated as listed hazardous
wastes which may become designated
as non-listed wastes pursuant to this
subparagraph must test their wastes for
all constituents listed in table 261.24 and
provide EPA with a one-time
notification prior to handling the waste
as nonhazardous. The waste remains
hazardous waste unless and until
completion of testing and notification.
*****

  (c) * *  *
  (2) * '  *
  (ii) * *  *
  (C) Waste that contains hazardous
constituents all of which have regulatory
levels established under table 1 of 40
CFR 261.24. Generators which have
wastes regulated  as listed hazardous
wastes which may become designated
as non-listed wastes pursuant to this
subparagraph must test their wastes for
all constituents listed in table 261.24 and
provide EPA with a one-time
notification prior to handling the waste
as nonhazardous. The waste remains
hazardous waste unless and until
completion of testing and notification.
*****
  3. In § 261.24, table 1  is revised to read
as follows:

§261.24 Toxicity characteristic.
                TABLE 1.—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS
EPA HW
No '
D044
D045
D046
D047
D048
D049
D050
D051
D052
D053
D054
D004
D005
D055
D018
D056
D057
_ f\f-Q

D059
D060
D061
D062
D063
D064
D065
D066
D067
D068
D069
D070
D006
D071
D019
D020
D072
D021
D073
D074
D075
D022
D076
D077
D078
D007
D079
D026
D023
D024
D025
D080
D081
D016
D082
D083

D084
D085
D086
D087
Contaminant
Acenapthene
Acetone (2-propanone)
Acetonitnle (methyl cyanide)
Acetophenone
Acrolein
Acrylamide
Acrylonitnle
Aldnn
Aniline (benzeneamme)
Antimony (and compounds N O S )
Aramite
Arsenic (and compounds N O S )
Barium (and compounds M O S )
Benzta] anthracene
Benzene
Benzidme
Benzo(b)fluoranthene
Q , ,
tsenzoia^pryren . - • •••• 	 	 	
Benzotrichlonde3
Benzyl alcohol
Benzyl chloride
Beryllium (and compounds N O S )
Bis(2-chloroethyl) ether
Bis(2-chloroisopropyl) ether
Bis(2-ethylhexyl) phthalate
Bromodichloromethane
Bromomethane
Butanol
Butyl benzyl phthalate
2-sec-Butyl-4,6-dmitrophenol (Dmoseb)
Cadmium (and compounds N O S )
Carbon disulfide
Carbon tetrachlonde
Chlordane
p-Chloroanihne
Chlorobenzene
Chlorobenzilate
2-Chloro-1,3-butadiene (chloroprene)
Chlorodibromomethane
Chloroform . . • -
Chloromethane (Methyl Chloride)
2-Chlorophenol
3-Chloropropene (allyl chloride)
Chromium (and compounds N O S )
Chrysene
Cresol
o-Cresol
m-Cresol
p-Cresol
Cumene
Cyanide (amenable)
2,4-Dichlorophenoxyacetic acid (2,4,-D)
ODD
DDE

DDT
Diallate
Dibenz(a,h)anthracene
1 ,2-Dibromo-3-chloropropane
Chemical
abstract No 2
83-32-9
67-64-1
75-05-8
98-86-2
107-02-8
79-06-1
107-13-1
309-00-2
62-53-3
7440-36-0
140-57-8
7440-38-2
7440-39-3
6-55-3
71-43-2
92-87-5
205-99-2
50-32-8

98-07-7
100-51-6
1 00-44-7
7440-41-7
111-44-4
39638-32-9
117-81-7
75-27-4
74-83-9
71-36-3
85-68-7
88-85-7
7440-43-9
75-1 5-0
56-23-5
57-74-9
106-47-8
108-90-7
510-15-6
1 26-99-8
124-48-1
67-66-3
74-87-3
95-57-8
107-05-1
7440-47-3
218-01-9
1319-77-3
95-48-7
1 08-39-4
1 06-44-5
98-82-8
57-12-5
94-75-7
72-54-8
~70 ^^ Q
1 £.— DD— y
50-29-3

2303-16-4
53-70-3
96-12-8
Regulatory
levels (mg/L)
200
400
20
400
70
7 10
06
002
6
1
1
5
200
01
5
7 03
02
02

003
1000
29
1
03
5
4
3
5
400
10
7
5
400
5
2
10
10
70
70
4
6
3
20
2
10
02
6 200
6 200
« 200
6 200
100
20
7
1
<



6
03
02

-------
                  Federal Register /  Vol. 57,  No. 98 /  Wednesday, May  20, 1992 /  Proposed Rules
                                                                                                                      21519
            TABLE 1.—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS—Continued
  EPA HW
   No '
                                           Contaminant
  Chemical
abstract No.2
 Regulatory
levels (mg/L)
D088
0089
0027
D090
D091
D092
0028
0029
0093
0094
0095
0096
0097
0098
D099
0100
0101
0102
0103
0104
0105
0106
0107
0108
0109
0030
0110
0111
0112
D113
0114
0115
0116
0117
0118
0119
0120
0121
0122
0012
0123
0124
0125
0126
0127
0128
0129
0130
D131
0132
0133
0134
0135
0136
0137
0138
0139
0140
0141
0031
D142
0032
0033
0143
0144
0145
0034
0146
0147
0148
0149
0150
0008
0013
0009
0151
0152
D014
0153
Dibromomethane (methylene bromide) 	       	        74-95-3
1,2-Dichlorobenzene	        	      	       95-50-1
1,4-Dichlorobenzene	     	       	     .      	       106-46-7
3,3'-Dichlorobenzidme  	      	       91-94-1
Dichlorodifluoromethane  	      	       75-71-8
1,1-Dichloroethane         	       	       75-34-3
1,2-Dichloroethane	      107-06-2
1,1-Dichloroethylene	       	       75-35-4
cis-1,2-Dichloroethylene   	      156-60-5
trans-1,2-Dichloroethylene 	      	    	      156-60-5
Dichloromethane (Methylene Chloride)	        75-09-2
2,4-Dichlorophenol      	      	       120-83-2
1,2-Dichloropropane  	     	       78-87-5
1,3-Dichloropropene 	        	          	          542-75-6
Dieldnn  	          60-57-1
Diethyl phthalate	       84-66-2
Diethylstilbestrol  	      	        56-53-1
Dimethoate  	          	        60-51-5
3,3'-Dimethoxybenzidme	      	      119-90-4
7,12-Dimethylbenz(a)anthracene	       57-97-6
3.3'-Dimethylbenzidme .       	       119-93-7
2,4-Dimethylphenol ...      	      	        105-67-9
Dimethyl phthalate	         	       131-11-3
1,3-Dimtrobenzene        	     .       	       	      25154-54-5
2,4-Diratrophenol      	          	        51-28-5
2,4-Dimtrotoluene  ..            	       .    ..     	       121-14-2
2,6-Dmitrotoluene    	       606-20-2
Di-n-butyl phthalate      	       	       84-74-2
Di-n-octyl phthalate	      117-84-0
1.4-Dioxane	      123-91-1
2378 TCDDioxm	      1746-01-6
2378 PeCDDioxms...            	       	
2378 HxCDDioxms	       	
2378 HpCDDioxms ...       	
OCDD 	      3268-87-9
Diphenylamme     	       122-39-4
1,2-Diphenylhydrazme	         122-66-7
Disulfoton   	      298-04-4
Endosulfan	       115-29-7
Endnn	        72-20-8
Epichlorohydrm  	      106-89-8
2-Ethoxyethanol	      110-80-5
Ethyl acetate      	      141-78-6
Ethylbenzene     	      100-41-4
Ethyl ether	         	       60-29-7
Ethyl methacrylate   	       	        97-63-2
Ethyl methanesulfonate	       62-50-0
Ethylene dibromide	      106-93-4
Famphur	       52-85-7
Fluoranthene  	       206-44-0
Fluorene	        86-73-7
Formic acid	        64-18-6
Furan	       110-00-9
2378TCDFuran  	    51207-31-9
12378 PeCDFuran	
23478 PeCDFuran	    57117-31-4
2378 HxCDFurans	
2378 HpCDFurans  	
OCDF	
Heptachlor	        76-44-8
Heptachlor epoxide	      1024-57-3
Hexachlorobenzene 	       118-74-1
Hexachloro-1,3-butadiene	       87-68-3
alpha-HCH	      	      319-84-6
beta-HCH 	      319-85-7
Hexachlorocyclopentadiene	     	       77-47-4
Hexachloroethane	       67-72-1
Hexachlorophene 	       70-30-4
lndeno(1,2,3-cd)pyrene    	      193-39-5
Isobutyl alcohol	        78-83-1
Isophorone	       78-59-1
Kepone	       	      143-50-0
Lead (and compounds N.O.S.)	      7439-92-1
Lmdane (gamma-HCH)    	       58-89-9
Mercury (and compounds N O S)	     7439-97-6
Methacrylonitnle 	      126-98-7
Methanol	       67-56-1
Methoxychlor	       	        72-43-5
3-Methylcholanthrene	        56-49-5
                        40
                        60
                        75
                        .08
                       700
                       400
                         5
                         .7
                         7
                        10
                         .5
                        10
                         5
                         2
                       .002
                      3000
                       '.02
                         7
                         3
                       '.01
                       '01
                        70
                      4000
                         .4
                         7
                        05
                        .05
                       400
                        70
                         3
                      5E-6
                      4E-7
                      2E-6
                      2E-5
                      2E-4
                        90
                        .04
                         1
                         .2
                         .2
                         4
                      1000
                      3000
                        70
                       700
                       300
                       '.02
                       .005
                         .1
                       100
                       100
                      7000
                         4
                      2E-6
                      4E-6
                      4E-7
                      2E-6
                      2E-5
                      2E-4
                       0.04
                        .02
                         .1
                         .4
                       .006
                        .02
                         5
                         3
                         1
                        .04
                      1000
                         9
                       '02
                        1.5
                        .02
                         .2
                         .4
                      2000
                         4
                       '.01

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21520
Federal Register  / Vol. 57,  No.  98  / Wednesday,  May 20,  1992 / Proposed Rules
            TABLE 1 .—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS—Continued
EPA HW
No '
D035
D154
D155
D156
D157
D158
D159
D036
D160
D161
D162
D163
D164
D165
D166
D167
D168
D169
D170
D171
D172
D037
D173
D174
D175
D176
D177
D178
D179
D038
D180
D010
D011
D181
01 82
D183
01 84
D185
D039
0186
0187
0188
0189
0190
0191
0192
0193
D015
0194
0195
D196
0197
0040
01 98
0041
0042
0199
0017
0200
0201
0202
0203
0204
0043
0205
0206
Contaminant
Methyl ethyl ketone . ....
Methyl isobutyl ketone
Methyl methacrylate. 	 ,. . . ... 	 "'"
Methyl parathion
Naphthalene .. 	
2-Naphthylamme ...
Nickel (and compounds N.O.S ) .... .... . .. 	 """' \ ^
Nitrobenzene
2-Nitropropane 	 . ... 	 "'"_
N/Nitroso-di-n-butylamme
N-Nitroso-diethylamme ...
N-Nitrosodimethylamme
N-Nitrosodiphenylamme
N-Nitrosodi-n-propylamme.
N/Nitrosomethylethylamme
N-Nitrosopipendme . . ..
N-Nitrosopyrrohdme .....
Octamethyl pyrophosphoramide ...
Parathion
Pentachlorobenzene
Pentachloromtrobenzene (PCNB)
Pentachlorophenol
Phenol
Phenylenediamine 4
Phorate
Phthalic anhydride 5 .
Polychlonnated biphenyls
Pronamide
Pyrene
Pyridine
Safrole
Selenium (and compounds N O.S )
Silver (and compounds N O S )
Strychnine and salts . .
Styrene
1 ,2,4,5-Tetrachlorobenzene
1 , 1 , 1 ,2-Tetrachloroethane
1 ,1 ,2,2-Tetrachloroethane
Tetrachloroethylene 	
2,3,4,6-Tetrachlorophenol
Tetraethyl dithiopyrophosphate
Thallium (and compounds N 0 S )
Toluene
2,4-Toluenediamme
2,6-Toluenediamme
o-Toluidme
p-Toluidme
Toxaphene
Tnbromomethane (Bromoform) .
1 ,2,4-Tnchlorobenzene
1 , 1 , 1 -Tnchloroethane
1 ,1 ,2-Tnchloroethane
Tnchloroethylene
Tnchlorofluoromethane ....
2,4,5-Tnchlorophenol ....
2,4,6-Tnchlorophenol ....
2,4,5-Tnchlorophenoxyacetic acid
2,4,5-TP (Silvex) . '
1,2,3-Trichloropropane ....
1 ,1 ,2-Trichloro-1 ,2,2,-tnfluoroethane
sym-Trmitrobenzene
Tris(2,3-dibromopropyl)phosphate
Vanadium
Vinyl chloride (Chloroethene)
Xylenes
Zinc (and compounds N O S ) . . . .
Chemical
abstract No 2
78-93-3
108-10-1
80-62-6
298-00-0
91-20-3
91-59-8
7440-02-0
98-95-3
79-46-9
924-16-3
55-18-5
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
152-16-9
56-38-2
608-93-5
82-68-8
87-86-5
1 08-95-2

298-02-2
85-44-9
1336-36-3
23950-58-5
129-00-0
110-86-1
94-59-7
7782-49-2
7440-22-4
57-24-9
100-42-5
95-94-3
630-20-6
79-34-5
127-18-4
935-95-5
3689-24-5
7440-28-0
108-88-3
95-80-7
823-40-5
95-53-4
106-49-0
8001-35-2
75-25-2
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
93-76-5
93-72-1
96-18-4
354-58-5
99-35-4
126-72-7
7440-62-2
75-01-4
1330-20-7
7440-66-6
Regulatory
levels (mg/L)
200
200
300
9
100
.04
10
2
.10
.01
02
.01
7
.01
.01
.02
04
7
20
3
1
.1
2000
7
7
7000
.05
300
100
4
2
5
20
1
10
1
1
2
.5
100
2
2
100
7 02
700
1
2
3
4
9
20
5
5
1000
400
3
40
5
20
1E 5
2
7 20
20
2
1000
700
    1 Hazardous Waste Number
    2 Chemical Abstracts Service registry number Where "and compounds N.O S " is entered, all species of the metal are included
    3 Benzotnchloride is hydrolytically unstable  Analyze for benzoic acid
    4 CBEC concentrations are based on toxicity data for o-phenylenediamme Method 8270 does not specify retention times for the three isomers. thus the lowest
available toxicity data for the isomers is used as a worst-case scenario
    5 Phthalic anhydride is hydrolytically unstable  Analyze for phthalic acid
    6 If o-, m-, and p-Cresol concentrations cannot be differentiated, the total cresol (0026) concentration is used The regulatory level of total cresol is 200 mg/l
    7 Quantitation limit is greater than the calculated regulatory level The quantitation limit therefore becomes the regulatory level
[Appendix VIII Amended]

  4.-6. In appendix VIII of part 261, add
the following hazardous constituents in
alphabetical order:

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                 Federal  Register  / Vol. 57, No. 98  / Wednesday. May 20,  1992  / Proposed  Rules        21521

Common name
Acenaphthene . .. . ... 	
Acetaldehyde . 	
Acetone 	
Acrylic acid 	 	
Benzo(k) fluoranthene
Benzyl alcohol
n-Butyl alcohol .. . 	
Chlorodibromo-methane, Dibromo-chloromethane .
* *
Cumene
Cyclohexanone ... 	
Di-n-butyl phthalate
Dimethylamme 	 	
1,4-Dioxane . . . 	
Ethyl acetate . . .. ... .. . .
Ethylbenzene 	
Ethyl ether . . ... 	
Furan . . . ... 	
Isophorone ... ...
Methanol . 	
Methyl isobutyl ketone .... 	
Phenanthrene 	
Styrene 	
Vanadium 	
Xylene 	
Zinc 	

APPENDIX VIII— HAZARDOUS CONSTITUENTS
Chemical abstracts name
	 . Acenaphthylene, 1,2-dihydro
• • » *
. Same 	 	 . ..

Methane, dibromochloro- 	 ...


. . .. 1 ,2-Benzenedicarboxylic acid, dibutyl ester . . .

	 Same . . . . .... . .

	 . Benzene, ethyl- 	
* • . .

* * * *

....
	 Same 	
Benzene ethenyl


Same


Chemical
abstracts
No
83-32-9
75-07-0
67 64 1
79-10-7
201-08-9
100 51 6
71-36-3
124-48-1
98-82-8
108-94-1
84-74-2
1 24-40-3
123-91-1
141-78-6
100-41-4
60-29-7
110-00-9
78 59 1
67 56 1
108 10 1
85-01-8
100 42-5
Total
1330 20 7
Total


Hazardous
waste No
U001
U002
U008

U031

U055
U057
U069
U092
U108
U112

U117
U124
U154
U161


U239


  7. At the end of part 261, appendix XI
is added to read as follows:

Appendix XI—Sampling Requirements

1. Environmental Media
  (i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in Chapter One of
SW-846, (3) describes how sample
representativeness will be determined, and
(4) describes the facility's quality assurance
program.
  (ii) Representative samples of the
contaminated media must be analyzed
according to the analytical methods specified
in appendix XI to this part and the facility's
sampling and analysis plan prior to
management of the media as non-hazardous
to determine whether the media meets the
concentration-based exemption criteria levels
specified in Appendix XI. Total constituent
analyses of these samples must be conducted
for each of the constituents in appendix XI. In
addition, for media containing greater than
0.5% solids as measured in step 7.1.1
(Preliminary determination of percent solids]
of method 1312 (the Synthetic Precipitation
Leaching Procedure), the samples must be
extracted using method 1312, and the
resultant extract analyzed for each of the
constituents in appendix XJ.  The
demonstration must include  enough
representative composite samples taken over
a period of time and area sufficient to
represent the temporal and spatial variability
or uniformity of the media:
  (A) Contaminated Soils/Sediments:
Samples must be collected in such a manner
as to define the boundaries of contamination.
When the area of contamination is less than
40,000 square feet, divide the unit into at least
four sections of equal area. Collect five
random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section. When the
area of contamination is greater than 40,000
square feet, divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-
core subsamples from each section.
Composite subsamples from each section.
  (B) Contaminated Ground Water From
Pump and Treatment Operations: Collect a
minimum of four time-composite samples
(each composite should consist of four to five
grab samples) collected over a period of at
least one month.
  (C) Contaminated In-Place Ground Water:
Collect four rounds of samples from all
ground water monitoring wells in an EPA- or
state-approved ground water monitoring
system that is designed to characterize the
lateral and vertical extent and nature of the
ground water contamination over a  period of
one year.
  (D) Additional samples should be collected
as needed to ensure that  the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
  (iii) A sampling record  must be maintained
which includes:

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21522	Federal Register / Vol.  57,  No.  98 / Wednesday, May 20, 1992  / Proposed Rules
  (A) Name, address and RCRA ID number of
facility;
  (B) Names and qualifications of persons
sampling the media;
  (C) Date of sampling;
  (D) Description of the unit or sampling area
and an explanation of why the samples are
representative of the temporal and spatial
variability of the media;
  (E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
  (F) Discussion of process and treatment
operating parameters at the time of sampling.
  (iv) A testing record must be maintained
which includes:
  (A) Name and address of laboratory
analyzing the media;
  (B) Names and qualifications of analysts;
  (C) Date of analysis;
  (D) Description of sample preparation
techniques used for extraction of samples;
  (E) Description of analytical methods
and  QA/QC procedures;
  (F) Type and model number ol instruments
used in analytical procedures; and
  (G) Analytical testing and QA/QC results.
  (v) Sampling and analysis of media must be
repeated annually for the first two years the
exemption is claimed and every three years
thereafter, and when process or operating
changes (including upsets] occur which could
affect the medium's composition.

2. Waste
  (i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in chapter one of
SW-846, (3) describes how sample
representativeness will be determined, (4)
discusses  any modifications to the analytical
protocols listed in appendix XI, and (5)
describes  the facility's quality assurance
program.
  (ii) Representative samples of the waste
must be analyzed according to the analytical
methods specified in appendix XII to this part
and the facility's sampling and analysis plan
prior to management of the waste as non-
hazardous waste to determine whether the
waste meets the concentration-based
exemption criteria levels specified in
appendix  XII. The samples must be  extracted
using the Toxicity Characteristic Leaching
Procedure, method 1311, and the resultant
extract analyzed for each of the constituents
in appendix XII. The demonstration must
 include enough representative composite
 samples taken over a period of time and area
 sufficient to represent the temporal and
 spatial variability or uniformity of the waste:
   (A) Pipes and Other Process Discharges:
 Collect a minimum of four time-composite
 samples (each composite should consist of
 four to five grab samples) collected over a
 period of at least one month.
   (B) Drums: Collect a minimum of four
 single-core samples from drums filled over at
 least a one-month period.
  (C) Land Disposal Units (less than 40,000
square feet): Divide the unit into at least four
sections of equal area. Collect five random or
fixed transect full-core subsamples from each
section. Composite subsamples from each
section.
* (D) Land Disposal Units (greater than
40,000 square feet): Divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
  (E) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
  (F) Sampling and analysis of wastes must
be reported annually for the first two years
and every three years thereafter, and when
process, operating or treatment changes
(including upsets) occur which could affect
the waste's composition.
  (iii) A sampling record must be  maintained
which includes:
  (A) Name, address, and RCRA ID number
of facility;
  (B) Names and qualifications of persons
sampling the waste;
  (C) Date of sampling;
  (D) Description of the unit or sampling area
and an explanation of why the samples are
representative of the temporal and spatial
variability of the waste;
  (E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
  (F) Discussion of process and treatment
 operating parameters at the time  of sampling.
  (iv) A testing record must be maintained
 which includes:
  (A) Name and address of laboratory
 analyzing the waste;
   (B) Names and qualifications of analysts;
   (C) Date of analysis;
   (D) Description of sample preparation
 techniques used for extraction of samples;
   (E) Description of analytical methods and
 QA/QC procedures;
   (F) Type and model number of  instruments
 used in analytical procedures; and
   (G) Analytical testing and QA/QC results.

 PART 262—STANDARDS APPLICABLE
 TO GENERATORS OF HAZARDOUS
 WASTE

   8. The authority citation for part 262
 continues to  read as follows:
   Authority: 42 U.S.C. 6906, 6912, 6922, 6923,
 6924, 6925, and 6937.
   9. In 262.20, paragraph [b) is revised to
 read as follows:

 § 262.20  General requirements.
 *    *     *     *     *
   (b) A generator must designate on the
 manifest one facility which is permitted
 to handle the waste described on the
manifest. In the case of wastes claiming
an exemption under 40 CFR 261.4(b)(14)
or media claiming an exemption under
40 CFR 261.4[a)(13), a generator must
designate the facility identified in its
exemption notification.

PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES

  10. The authority citation for part 264
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6924 and
6925.
  11. Section 264.1 is amended by
adding paragraph (g)(ll) to read as
follows:

§ 264.1   Purpose, scope and applicability.
  (g) *  * *
  [11) the owner or operator of a facility
that accepts wastes claiming an
exemption under § 261.4(b)(14), so long
as:
  (A) the owner or operator only
accepts for disposal mainfested wastes
claiming an exemption under
§ 261.4(b)(14) exclusively or in addition
to solid wastes;
  (B) the owner or operator stores
manifested waste claiming an
exemption under §261.4(b)(14) in
accordance with the requirements of 40
CFR 262.34(a)(l) no longer than 10 days
prior to disposal; and
  (C) the owner or operator disposes of
the waste claiming an exemption under
 §261.4(b)(14) in a unit or units meeting
the criteria of part 258, subpart D.
 PART 268—LAND DISPOSAL
 RESTRICTIONS

   12. The authority citation for part 268
 continues to read as follows:
   Authority: 42 U.S.C. 6905, 6912(a), and 6924.
   13. Section 268.1 is amended by
 adding paragraph (c)(4) to read as
 follows:

 § 268.1  Purpose, scope and applicability.
 *****

   (c) * * *
   (4) Where the waste is exempted from
 subtitle C regulation under
 § 261.3(a)(2)(iv)(F) or § 261.3(c)(2)(ii)(C).
 *****

 [FR Doc. 92-10973 Filed 5-14-92; 8:45 am]
 BILLING CODE 6560-50-M

-------