United States
            Environmental Protection
            Agency
              Office of
              Solid Waste and
              Emergency Response
530-SW-91 -047
  &EPA
DIRECTIVE  NUMBER: 9541.00-13

TITLE: State Program Advisory #8
              APPROVAL  DATE:  March 1, 1991

              EFFECTIVE  DATE:  March 1, 1991
              ORIGINATING OFFICE: State Programs Branch
                               Office of Solid Waste

              x FINAL
   DRAFT

      STATUS:
                            O  A - Pending OMB Approval
                            D  B - Pending AA-OSWER Approval
              REFERENCE  (Other Documents):
               Supplements OSWER Directive 9540.00-9A
OSWER      OSWER      OSWER      OSWER
  DIRECTIVE     DIRECTIVE     DIPECTIVF

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           United States Environmental ProtectionAgency*
                  Washington. DC 20460
 ^^ ^^             TVWIIMIytWII, l^\f £.V*W
 OSWER Directive Initiation  Request
	2. Originator Information
                                                                       1 Directive Number

                                                                        9541.00-13
       3. Title
                  Jones
                    Mail Code
                     OS-342
                                                  Office
OSW
Telephone Code
   (202)  382-2210
            State Program Advisory #8 - State Program Changes for Non-HSWA Cluster VI
            and HSWA Cluster II and Associated Revisions to the State Authorization Manual (SAT"
       4. Summary of Directive (include brief statement of purpose)
            This document extends policy given in the SAM (QSWER Directive #9540.00-9A)  by
            providing Checklists 64-70 and the revised models which are responsive to  these
            new checklists.  These documents/as part of the SAM, provide guidance to the Regior
            and States.  They are used as models for authorization and codification.
                    Guidance / State Authorization / State Program
       *. Does This Directive Supersede Previous Directive(s)?
       b. Does It Supplement Previous Directive(s)?
                                               No
                                                        Yes   What directive (number, title)
                                                        Yes   What directive (number, title)
        . Draft Level
           A - Signed by AA/DAA
                                                             PD# 9540.00-9A
              B - Signed by Office Director
                                                                               D - In Development
                                                         C - For Review & Commeni
             8. Document to be distributed to States by Headquarters?  | x| Yes   j_
       This Request Meets OSWER Directives System Format Standards.
       9. Signature of Lead Office Directives Coordinator
            Lynn
       r/o^-
       fcldeof Solid Waste
      10. Name and Title of Approving'Orficial
            Sylvia K. Lowrance/ Director/  Office of Solid Waste
      EPA Forni 1315-17 (Rev. 5-»7) Previous editions are obsolete.
   OSWER           OSWER                OSWER                C
VE     DIRECTIVE          DIRECTIVE         DIRECTIVE

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
                      MAR
                  1991
SUBJECT:  State Programs Advisory Number Eight

FROM:
TO:
Sylvia K. Lowrance, Direct
Office of Solid Waste
Regional Waste Management Division Directors
EPA Regions I-X
     The State and Regional  Programs  Branch (SRPB)  has
periodically issued State  Programs  Advisories (SPAs)  to update
the "State Consolidated Authorization Manual" (SCRAM)  as new RCRA
program policies, regulations,  and  self-implementing statutory
provisions come  into  effect.  Since the SCRAM was recently
replaced by the  State Authorization Manual  (SAM)  which includes
RCRA program changes  through June 30,  1989,  current SPAs (SPA 8
and higher) will now  update  the SAM.

     The intent  of this memo is to  send you SPA #8  which covers
RCRA program changes  for the period July 1,  1989  through
December 31, 1989.  Included in the SPA are seven new revision
checklists, model Attorney General's  Statement language for the
changes covered  by the SPA,  and other revised materials.  Please
note that a revision  to the  "First  Third Scheduled Wastes" is
included in this SPA.  Also, note that SPA  8 introduces Revision
Checklist 70 which covers  changes to  Part 124 which were
inadvertently not included as checklists in previous guidance.

     If you have questions about any  of these materials, please
contact Richard  LaShier, Acting Chief,  Regional Coordination &
Implementation Section, State and Regional  Programs Branch at
FTS 382-2210.

Attachments

cc:  Dev Barnes, OSW
     Suzanne Rudzinski, OSW
     Branch Chiefs, Regions  I-X
     Section Chiefs,  Regions I-X
     State Programs Liaisons
                                                          Printed on Recycled Paper

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                      Summary for State Program Advisory Eight


The following points briefly highlight the content of SPA 8.  These points are organized by
topic.
Checklists

a. New
b. Existing
             This SPA provides seven new revision checklists (Numbers 64 through 70)
             and one amended checklist (Number 24), covering RCRA regulatory changes
             for the period July 1, 1989 through December 31, 1989.  Revision Checklists
             64,  65, 67 and 70 as well as the amended Revision Checklist 24 were
             added to non-HSWA Cluster VI.  Checklists 66, 68 and 69 were added to
             HSWA Cluster II.

             Revision Checklist 70 contains a series of changes to Part 124 covering the
             period January 1983 through  December 31, 1989. These changes are part
             of rules associated with a wide range of permit programs (e.g., Drinking
             Water, NPDES), including RCRA permits.  These changes have not been
             previously addressed in the SAM, SCRAM or prior SPAs, and this checklist
             helps  States update  their code appropriately.
             The May 2, 1986 rule addressed by Revision Checklist 24 Incorrectly
             designated the amendments to 264.113 and  265.113 as optional.  Revision
             Checklist 24 (Amended), included in this SPA, incorporates the June 26,
             1990 (55 FR 25976) correction in which the 264.113 and 265.113
             amendments are redeslgnated as more stringent.  This amended checklist
             must be submitted by States already authorized for Revision Checklist 24,
             that did not adopt the 264.113 and 265.113 provisions, to modify their
             regulatory programs.  States  must adopt these provisions by July 1, 1991
             (July 1, 1992 for statutory changes).  States  that are not already authorized
             for Revision Checklist 24 should use this amended checklist when applying
             for the May 2,  1986 rule.

             SPA 8 provides revised first pages for Revision Checklists 50 and 62,
             explaining that  Revision Checklist 66 makes additional changes to the First
             Third Scheduled Wastes.
Cluster Information
SAM
             SPA 8 delineates timeframes by which States must obtain authorization for
             non-HSWA Cluster VI and HSWA Cluster II.  Revision Checklists 64, 65,  67
             and 70 open non-HSWA Cluster VI.  Both clusters close on June 30,  1990.
             For further information on the cluster rule,  see September 26,  1986 (51 FR
             33712).
             This SPA provides updated Tables G-1 and Q-2, a Model Attorney General's
             Statement, and a Checklist Linkage Table.

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                          STATE PROGRAM ADVISORY #8


A.     STATE PROGRAM CHANGES FOR JULY 1, 1989 - DECEMBER 31,  1989

1.     Delay of Closure Period for Hazardous Waste  Management Facilities

Date:  August 14, 1989                         Reference:  54 FR 33376

Effective:  November 13, 1989

Summary:  This rule amends closure requirements applicable to certain types of hazardous
waste facilities.  Under limited circumstances, facilities may delay closure to receive non-
hazardous wastes after the final receipt of hazardous waste.  Owners and operators of
facilities delaying closure under today's rule will be required to operate under the full
permit requirements of 40 CFR Part 264 (or  Part 265 requirements until  a permit is
issued), including corrective action requirements.  In addition,  surface impoundments not in
compliance with liner and leachate collection system requirements will be required to
remove all hazardous wastes to the extent practicable.  Facilities currently in interim status
that meet the requirements of today's rule may delay  closure while the permit application
is being reviewed.

State Authorization:  This is a non-HSWA rule and will be  included in non-HSWA Cluster
VI.  The standards promulgated in this rule are less stringent than or reduce the scope of
existing Federal requirements.  Therefore, authorized States are not required to modify their
program to adopt these Delay  of  Closure provisions.  The modification deadline for those
States wishing to adopt these provisions is July  1, 1991.  Only final authorization is
available.

Note that States must adopt the Revision Checklist 24 amendments (May  2,  1986; 51 FR
16422)  to 40 CFR 264.113 and 265.113 before or simultaneous with adopting the Delay of
Closure provisions.  The May 2,  1986 final rule erroneously designated as optional
amendments to 40 CFR 264.113  and 265.113.  A June  26, 1990  (55 FR 25976) notice
corrected this error and explained the relationship of the 40 CFR 264.113 and 265.113
amendments to authorization for the Delay of Closure provisions.

The State revision application  must include a revised  program description, an AG Statement
addendum, an addendum to the MOA  (if appropriate), Revision Checklist 64, and
associated State regulations.

SAM Update:   Updates to Tables G-l  and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the  Checklist Linkage Table of Appendix
H are necessary to reflect the  addition of this checklist.  These revisions are addressed in
Section B of this SPA.  A copy  of Revision  Checklist 64 and its associated FR notice may
be found in Attachment A.

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2.     Mining Waste Exclusion I

Date:  September 1, 1989                       Reference:  54 FR 36592
                                                           —     /
Effective:  March 1, 1990

Summary:  This final rule  is in response to a Federal Appeals Court directive to narrow
the exclusion of wastes from extraction, beneficiation, and processing of ores and minerals
as this exclusion  applies to mineral processing wastes.  This rule provides the final criteria
by which mining processing wastes will be evaluated for continued exclusion.  It also
finalizes the Bevill status of nine mineral processing waste streams that were proposed for
either retention or removal from the exclusion in the April 17, 1989 (54 FR  15316) notice.
The Agency has  also modified the list of mineral processing  wastes proposed for
conditional retention by the April notice. All other mineral processing wastes that have not
been listed for conditional  retention will be permanently removed from the Bevill exclusion
as of the effective date of  this rule.

Note that the checklist addressed by this final rule is titled "Mining Waste Exclusion I"
indicating that it  is the first of two amendments to this exclusion.   The second amendment
occurred at 55 FR 2322 on January  23, 1990 and is addressed by  Revision Checklist 71 -
Mining Waste Exclusion n.  This latter checklist will be part of SPA 9.

State Authorization:  This  is a non-HSWA rule and will be included in non-HSWA Cluster
VI.  The State modification deadline  is July 1, 1991.  Only final authorization  is available.
The State revision application must include a revised program description, an AG Statement
addendum, an addendum to the MOA (if appropriate), Revision Checklist  65, and
associated State regulations.

SAM Update:  Updates to  Tables G-l and G-2 of Appendix  G,  the Model Revision
Attorney General's Statement  in Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect  the addition of this checklist.   These revisions are addressed in
Section B of the  SPA.  A  copy of Revision Checklist 65  and its associated FR notice may
be found in Attachment A.
3.     Land Disposal Restrictions: Correction for the First Third Scheduled Wastes

Dates:  September 6, 1989                      Reference:  54 FR 36967
        June 13, 1990                                      55 FR 23935

Effective:  September 6, 1989
           June 13, 1990

Summary:  This rule correct errors and clarifies  the language in the preamble and
regulations of August 17, 1988  (53 FR 31138, Revision Checklist  50) final rule. It also
makes several corrections to the May 2, 1989 (54 FR 18836, Revision Checklist 62) notice
that also corrected land disposal restrictions for die  first third scheduled wastes.  The June

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13, 1990 (55 FR 23935) notice made corrections to the September 6, 1989 (54 FR 36967)
notice.

State Authorization:  This is a HSWA rule and will be included in HSWA Cluster II.  The
State modification deadline is July 1, 1991.  Both interim and final authorization are
available.  The State revision application must  include a revised program description, an
AG Statement addendum, an addendum to the  MOA (if appropriate),  Revision Checklist 66,
and associated State regulations.

SAM Update:  Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist.  These revisions are addressed in
Section B of the SPA.  A copy of Revision Checklist 66 and its associated FR notices
may be found in Attachment A.
4.     Testing and Monitoring Activities

Date:  September 29, 1989                      Reference:  54 FR 40260

Effective:  October 30,  1989

Summary:  This rule adds (to 40 CFR Part 261 Appendix m, Tables 2 and 3) 47
additional testing methods as approved methods where the regulation specified compliance
with appropriate SW-846 methods.  The methods approved by this rule are among those set
forth in the Third Edition of the manual and its Update I. EPA plans to proceed with a
separate review of the remaining methods contained in the Third  Edition and in its Update
I.

State Authorization:  This is a non-HSWA rule and will be included in non-HSWA Cluster
VI.  The State modification deadline is July 1, 1991.  Only final authorization is available.
The State revision application must include a revised program description,  an AG Statement
addendum, an addendum to  the MOA (if appropriate), Revision Checklist 67,  and
associated State regulations.

SAM Update: Updates to Tables G-l  and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary  to reflect the addition of this checklist.  These revisions are addressed in
Section B of this SPA.  A copy of Revision Checklist 67 and its  associated FR notice may
be found in Attachment A.

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5.     Reportable Quantity Adjustment Methyl Bromide Production Wastes

Date:  October 6, 1989                        Reference:  54 FR 41402

Effective:  April 6,  1990

Summary:  This rule adds two wastes (K131  and K132) to the  list of hazardous wastes
from specific sources (40 CFR 261.32) and to two appendices (40 CFR 261 Appendix TO.
and VQ).  The wastes, methyl bromide and dimethyl sulfate, are generated during the
production of methyl bromide.

State Authorization:  This is a HSWA rule and will be included in HSWA Cluster n.  The
State modification deadline is July 1,  1991.  Both interim  and final  authorization are
available.  The State revision application must include a revised program description, an
AG Statement addendum, an addendum  to the MO A (if appropriate), Revision Checklist 68
and associated State regulations.

SAM Update:   Updates to Tables G-l and G-2 of Appendix G, the  Model Revision
Attorney General's  Statement of Appendix E  and the Checklist  Linkage Table of Appendix
H are necessary to  reflect the addition of this checklist. These  revisions are addressed in
Section B of this SPA.  A copy of Revision Checklist 68  and its associated FR notice may
be found in Attachment A.
6.     Reportable Quantity Adjustment

Date:  December 11,  1989                     Reference:  54 FR 50968

Effective:  July  11, 1990

Summary:  This rule  lists as hazardous one generic category (F025) of waste generated
during the  manufacture of chlorinated aliphatic hydrocarbons by free radical catalyzed
processes having carbon chain lengths ranging from one to five.  EPA is also amending the
listing for F024.  A February 10, 1984 interim rule (49 FR 5311) added two compounds to
Appendix VJH of Part 261.   A technical correction to Appendix V7JJ on April 22, 1988
(53 FR 13382) inadvertently deleted one of those compounds, allyl chloride.  In this rule,
EPA is making a technical correction to  once again include allyl  chloride in Appendix
vm.

State  Authorization:  This is a HSWA rule and will be included in HSWA Cluster n.  The
State  modification deadline is July 1, 1991.   Both interim and final authorization are
available.  The State revision application must include  a revised program description, an
AG Statement addendum, an addendum  to the MOA (if appropriate), Revision Checklist 69
and associated State regulations.

SAM Update:  Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's  Statement in Appendix :  Jid the Checklist Linkage Table of Appendix

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 H are necessary to reflect the addition of this checklist.  These revisions are addressed in
 Section B of this SPA.  Revision Checklist 69 and its associated FR notice may be found
 in Attachment A.
 7.     Changes to Part 124 Not Accounted for by Present Checklists

 Dates:  April 1,  1983                          Reference:  48 FR 14146
        June 30, 1983                                      48 FR 30113
        July 26,  1988                                      53 FR 28118
        September 26,  1988                                 53 FR 37396
        January 4, 1989                                    54 FR 246

 Effective:  April 1, 1983
           June 30, 1983
           July 26, 1988
           October 26, 1988
           January 4, 1989

 This checklist brings Part 124 up to date by making minor changes which were not part of
 the hazardous waste rules. The April 1,  1983 rule (48 FR 14146) reorganized  the
 presentation of permit program requirements governing the hazardous waste management
 program and the  other permit programs addressed by 40 CFR Part 124.  The rule made no
 substantive changes to any of the affected sections, but rather the'Agency made a physical
 deconsolidation of its Consolidated Permit Program.  Only minimal changes affected those
 portions  of Part 124 required  for State authorization.  These changes mostly relate to cross
 referencing.  In reprinted Part  124 in the April  1, 1983 FR notice, a number of
 typographical errors were made as well as inadvertent omissions of paragraphs.  The June
 30, 1983 (48 FR 30113) and January 4, 1989 (54 FR 246) notices corrected these  errors.
 In developing the checklist for these rules, only the changes made by the April 1,  1983
 rule that were not negated by the June 30, 1983 or January 4, 1989 notices were included.

 Of the Part  124 sections required for State authorization notices, the September 26, 1988
 rule only affected 124.10(c)(l)(iii) by clarifying that it is appropriate to treat Indian tribes
 as States when giving public notice of activities listed under  124.10(a)(l).

The July 26, 1988  (53 FR 37396) rule redesignated certain portions of 124.10(c)(l).  The
June 30, 1983 (48  FR 30113) and January 4, 1989 (54 Fjl 246) made  minor wording
changes to 124.10(c)(l) and 124.12(a)(2).

State Authorization: Due to the timing of this checklist's release and the fact that none of
the above discussed final  rules resulted from HSWA requirements, this rule is placed in
non-HSWA  Cluster VI.  The modification deadline is July 1, 1991.  Only final
authorization is available. The State revision application must include  a revised program
description, an AG Statement  addendum,  an addendum to the MOA (if appropriate),
Revision Checklist 70 and associated  State regulations.

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SAM Update:  Updates to Tables G-l and G-2 of Apr>  -<*ix G, the Model Revision
Attorney General's Statement of Appendix E, and the     -klist Linkage Table of Appendix
H are necessary to reflect the addition of this checklis.    icse revisions are addressed in
Section B of this SPA.  A copy of Revision Checklist    may_be foiuid in Attachment A.
Due to the minor nature of the changes and the length 01 some of the Federal Register
Notices, the Revision Checklist 70 FR notices  were not included in this SPA.
8.     Standards Applicable to Owners and Operators of Hazardous Waste Treatment.
       Storage, and Disposal Facilities; Correction

Date:  June 26, 1990                          Reference:  55 FR 25976

Effective:  June 26,  1990

This correction to the final rule of May 2, 1986 (51  FR  16422) recharacterizes  as more
stringent the amendments to 40 CFR 264.113 and 265.113.  These amendments were
originally characterized as less stringent and designated as optional in Revision  Checklist
24.  This correction  directs authorized States, that have not yet done so, to adopt these
more stringent amendments in order to maintain an equivalent hazardous waste  regulatory
program.  To accommodate this change, an amended Revision Checklist 24 is being issued
which  removes the optional  designation for the  amendments to these two sections of code.
Additionally, States must adopt these recharacterized  amendments prior to or simultaneous
with receiving authorization  for the "Delay of Closure" rule promulgated on August 14,
1989 (54 FR 33376; Revision Checklist 64).

State Authorization:  This is a non-HSWA rule and the correction to the final rule of May
2, 1986 is included in non-HSWA Cluster VI.  The State modification deadline for
adopting the amendments of 40 CFR 264.113 and 265.113 is July 1, 1991. The State
modification deadline for all other Revision Checklist 24 provisions continues to be July 1,
1986, as these other provisions remain under • m-HSWA Ouster  JJ.  Only  final
authorization is available.  The State revision   -plication must include a revised program
description, an AG Statement addendum, an addendum to the MOA (if appropriate),
Revision Checklist 24 (Amended), and associated State regulations.

SAM Update:  Updates to Tables G-l  and G-2 of Appendix G, and  the Model  Revision
Attorney General's Statement in Appendix E are necessary to reflect the amendment of this
checklist.  These revisions are addressed in Section B of the SPA.  A copy of  Revision
Checklist 24 (Amended) and its associated FR notice may be found in Attachment A.
B.     REVISIONS TO SAM

The addition of seven new checklists and one amended checklist necessitates revisions to
Tables G-l and G-2 of Appendix G, to the Model Revision Attorney General's Statement
in Appendix  E, and the Checklist Linkage Table in Appendix H.   These revised tables and
model are included in Attachment B and should replace these parts in the SAM manual.

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       The revised Tables G-l and G-2 should replace pages 4-21 of Appendix G.  Table
       G-l was revised by:  1) adding Revision Checklists 64, 65, 67, 70, and Revision
       Checklist 24 (Amended) to non-HSWA Cluster VI and 2) adding Revision
       Checklists 66, 68 and 69 to HSWA Cluster H.

       The revised Model Attorney General's Statement should replace pages 9 through 39
       of SAM Appendix  E.  Section XXI C was revised, and Sections I A 12 and 13, I J,
       I K, XV K, and XVI V were added to incorporate the final rules affecting
       authorization from July  1, 1989 through December 31, 1989.

       The revised Checklist Linkage Table should replace pages 3 through 6 of Appendix
       H.
C.    REVISIONS TO EXISTING REVISION CHECKLISTS

Attachment C contains replacement pages for Revision Checklists 50 and 62. A note was
added at the beginning of these checklists to explain the relationship of Revision Checklist
66 to them.

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   ATTACHMENT A
New Revision Checklists

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                               RCRA REVISION CHECKLIST 64

                          Delay of Closure Period for Hazardous Waste.
                                    Management Facilities       /
                                    54 FR 33376-33398
                                      August 14, 1989
                                   (Non-HSWA Cluster VI)

   The June 26, 1990 (55 FR 25975) notice corrected the May 2, 1986 (51 FR 16422; Revision
   Checklist 24) final rule which erroneously designated the amendments to 40 CFR 264.113 and
   265.113 as less stringent.  The June 26, 1990 notice also explains that States must adopt the
   May 2, 1986 amendments to 40 CFR 264.113 and 265.113 prior to or simultaneous with receiving
   authorization for the Delay of Closure provisions addressed by Revision Checklist 64. While this
   checklist's provisions are optional, States choosing not to adopt them must still adopt the May 2,
   1986 amendments to  40 CFR 264.113 and 265.113 because they are required changes. See the
   amended version of Revision Checklist 24 for further information.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
siAit ANALOG is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
           PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
                  WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
                       SUBPART B - GENERAL FACILITY STANDARDS
t  GENERAL WASTE ANALYSIS
insert ", or non-
hazardous wastes if
applicable under
264.1 13(d)" after
"hazardous wastes"
insert ", or non-
hazardous wastes if
applicable under
264.1 13(d)" after
"hazardous wastes"
add ", or non-
hazardous waste if
applicable under
264. 113(d)" after
"hazardous waste"
264.13(a)(1)
264.13(a)(3)(i)
264.1 3(b)(1)












                        SUBPART G - CLOSURE AND POST-CLOSURE
f  CLOSURE PLAN: AMENDMENT OF PLAN
place "(i)" after
"either:" and re-
desiqnate as below:
264.1 12(d)(2)




                               August 14, 1989 - Page 1 of 11

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RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
redeslgnate the re-
mainder of the old
264.11 2(d)(2) as
264.11 2(d)(2)(i);
remove ", and will
continue to take,"
after "he has taken"
add new subparagraph
on the receipt of final
volume of non-
hazardous wastes by
units meeting
264.1 13(d) require-
ments; extension by
Regional Administrator
FEDERAL RCRA CITATION
264.1 12(d)(2)(i)
264.1 12(dH2)(ii)
ANALOGOUS
STATE CITATION /


STATE ANALOG IS:
"EOUKT"
ALENT


MORE
STRINGENT


BROADER
IN SCOPE


t CLOSURE: TIME ALLOWED FOR CLOSURE
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes
and owner/operator
compliance with
264.113(d)&(e)
after "hazardous
wastes" add language
regarding capacity to
receive non-
hazardous waste and
owner/operator com-
pliance with
264.11 3(d)&(e)
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes and
owner/operator in
compliance with
264.113(d)&(e)
264.113(a)
264.1 13(a)(1)fii)(A)
264.113(b)












             August 14, 1989 - Page 2 of 11

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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
after "hazardous
wastes" add language
regarding capacity to
receive non-hazardous
wastes and owner/
operator compliance
with 264.113(d)&(e)
replace reference to
"(a) and (b)" with
"(a)m and (bHD"
replace first reference
to "(a)" with "(a)(1)"
replace first reference
to "(b)" with "(b)(1)";
exception if owner/
operator subject to
264.113(d) deadlines
add new paragraph
regarding receipt of
non-hazardous waste;
conditions which must
be met:
permit modification
request meeting 270
and 124 requirements
demonstratinq:
has existing design
capacity to receive
non-hazardous wastes
likely to receive non-
hazardous wastes
within one year after
final receipt of
hazardous wastes
not incompatible with
remaining wastes or
with design and
operatino requirements
closure of hazardous
waste unit incom-
patible with continued
operation
operate in compliance
with all applicable
permit requirements
FEDERAL RCRA CITATION
264.1 13(b)mfli)(A)
264.113(c)
264.1 13(c)(1)
264.1 13(cH2)
264.113(d)
264.113(d)(1)
264.113(d)(1)(i)
264.113(d)(1)(ii)
264.1 13(d)(1HHi)
264.1 13(d)(1)(iv)
264.113(d)(1)(v)

ANALOGOUS
STATE CITATION /











	 STATE ANALOG IS:""
EQUIV-
ALENT











MORE
STRINGENT











BROADER
IN SCOPE











             August 14, 1989 - Page 3 of 11

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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
what the request to
modify the permit
should include
permit modification
request includes re-
visions to account for
non-hazardous waste
receipt after final
volume of hazardous
wastes
submission to
Regional Administrator
special requirements
for surface impound-
ments not in com-
pliance with liner and
leachate collection
svstem requirements
permit modification
request:
contingent corrective
measures plan
hazardous waste
removal plan
removal of all hazard-
ous wastes Including
liquids and sludges to
extent practicable
when removal takes
longer than 90 days;
extension by Regional
Administrator
actions if detect a
statistically significant
release:
corrective measures in
accordance with plan
required by
264.113(e)m
conditions under which
wastes may continue
to be received
FEDERAL RCRA CITATION
264.1 13(dU2)
264.1 13(d)(3)
264.113(d)(4)
264.113(0)
264.1 13(e)(1)
264.11 3(e)(1M)
264.113(e)(1Uin
264.113(9) (2)
264.113(e)(3)
264.1 13(e)(4)
264.1 13(e)(4)(i)
264.113(e)(4)(in
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             August 14, 1989 - Page 4 of 11

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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
corrective measures In
less than one year if
necessary to protect
human health and
environment
semi-annual
reports
conditions under which
Regional Administrator
may require closure
if fail to implement
corrective measures
or no substantial
progress, the Regional
Administrator shall:
notify in writing that
closure required
according to
264.113(a) and (b)
deadlines
newspaper notice;
opportunity for
public comment
Regional Administrator
actions when no
written comments
are received
Regional Administrator
actions when written
comments are
received
no administrative
appeal
FEDERAL RCRA CITATION
264. 11 3(6) (4) (iii)
264.1 13(eU5)
264.113(e)(6)
264.113(e)(7)
264.113(eH7Hi)
264.1 13(e)(7)(ii)
264.113(e)(7)(iii)
264.1 13fe)(7)flv)
264.1 13(e)m(v)
ANALOGOUS /
STATE CITATION









OlAlt ANALOG IS:
EQUIV-
ALENT









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STRINGENT









BROADER
IN SCOPE









       SUBPART H - FINANCIAL REQUIREMENTS
t COST ESTIMATE FOR CLOSURE
after "hazardous
wastes" insert ", or
non-hazardous wastes
if applicable under
264.113(d)."
264.1 42(a)(3)




            August 14, 1989 - Page 5 of 11

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        RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
             Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
after "hazardous
wastes" insert ", or
non-hazardous wastes
if applicable under
264.113(d)."
FEDERAL RCRA CITATION
264.142(aW4)
ANALOGOUS- /
STATE CITATION

-•" — STATE-AFIALOa-IS:
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ALENT

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PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
  HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
             SUBPART B - GENERAL FACILITY STANDARDS
t GENERAL WASTE ANALYSIS
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.113(d)."
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.113(d)."
after "hazardous waste"
add ", or non-
hazardous waste if
applicable under
265.113(dV
265.13(a)(1)
265.1 3fa)f3)fl)
265.1 3ft>H1)












             SUBPART G - CLOSURE AND POST-CLOSURE
CLOSURE PLAN: AME
add "(I)" after "either:"
and redesignate re-
mainder of paragraph
as below
redesignate remainder
of old 265.112(d)(2) as
265.112(dU2>m
MOMENT OF PLAN
265.11 2(d)(2)
265.1 12(d)(2)(i)








                    August 14, 1989 - Page 6 of 11

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                 RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
                       Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
add new subparagraph
on receipt of final
volume of non-
hazardous wastes by
units meeting
265.11 3(d) require-
ments; extension by
Regional Administrator
FEDERAL RCRA CITATION

265.1 12(d)(2)(ii)
ANALOGOUS ,
STATE CITATION


STATE ANALOG IS:
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ALENT


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STRINGENT


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IN SCOPE


t  CLOSURE: TIME ALLOWED FOR CLOSURE
after "hazardous
wastes" add language
regarding the final
volume non-hazardous
wastes and owner/
operator compliance
with 265.1 13(d)&(e)
after "hazardous
wastes" add language
regarding the capacity
to receive non-
hazardous wastes and
owner/operator
compliance with
265.113(d)&(e)
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes and
owner/operator com-
pliance with
265.113(d)&(e)
after "hazardous
wastes" add language
regarding the capacity
to receive non-
hazardous wastes and
owner/operator com-
pliance with
265.113(d)&(e)
replace references
to "(a) and (b)" with
"(a)(1) and (b)(1)"
replace first reference
to "(a)" with "(a)(1)"
265.113(a)
265.113(a)(1)(ii)(A)
265.113(b)
265.1 13(b)(1)(li)(A)
265.113(c)
265.113(c)(1)
























                             August 14, 1989 - Page 7 of 11

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RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
      Hazardous Waste Management Faculties (cont'd)
FEDERAL REQUIREMENT
replace first reference
to "(b)" with "(b)(1)";
add exception if
owner/operator subject
to265.113(d)
deadlines
add new paragraph
regarding receipt of
non-hazardous wastes;
conditions which must
be met:
submits an amended
Part B application or a
Part B application if
not previously required
demonstratina:
has existing design
capacity to receive
non-hazardous wastes
likely to receive non-
hazardous wastes
within one year after
final receipt of
hazardous wastes
not incompatible with
remaining wastes or
with design and
ooeratina reauirements
closure of hazardous
waste unit incompat-
ible with continued
operation 	
operate in compliance
with all applicable
interim states
requirements 	
what the Part B
application should
include
Part B modification is
amended to account fo
non-hazardous waste
receipt after final
volume of hazardous
waste 	
FEDERAL RCRA CITATION
265.113(cU2)
265.113(d)
265.1 13(dH1)
265.113(d)(1)(n
265.1 13(
ANALOGOUS. /
STATE CITATION










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ALENT










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STRINGENT










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IN SCOPE










              August 14, 1989 - Page 8 of 11

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RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
submission to
Reqional Administrator
special requirements
for surface impound-
ments not in com-
pliance with liner and
leachate collection
svstem requirements
submit with the Part B
application:
contingent corrective
measures plan
hazardous waste
removal plan
removal of all
hazardous wastes
Including liquids and
sludges to extent
practicable
when removal must
take place; extension
by Regional
Administrator
actions if detect a
statistically significant
release:
corrective measures in
accordance with plan
required by
265.1 13(e)(1)
conditions under which
wastes may continue
to be received
corrective measures
In less than one year
or cease receipt of
wastes until imple-
mented if necessary
to protect human
health and
environment
semi-annual
reports
conditions under which
Regional Administrator
mav require closure
FEDERAL RCRA CITATION
265.113(d)(4)
265.113(6)
265.113(e)(1)
265.113fe)m(i)
265.1 13(e)(1)(ii)
265.113(e)(2)
265.1 13(e)(3)
265.1 13(e)(4)
265.1 13(e)(4)(l)
265.1 13(e)(4)(li)
265.113(e)(4)(iii)
265.1 13(eU5)
265. 11 3(9 W6)
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             August 14, 1989 - Page 9 of 11

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RCRA REVISION CHECKLIST 64:  Delay of Closure Period for
      Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
if fail to implement
corrective measures
or no substantial
progress, the Regional
Administrator shall:
notify in writing that
closure required
according to
265.11 3(a) and (b)
newspaper notice:
opportunity for
oublic comment
Regional Administrator
actions when no
written comments are
received
Regional Administrator
actions when written
comments are
received
no administrative
appeal
FEDERAL RCRA CITATION
265.1 13(eH7)
265.113(eU7Wi)
265.1 13(eH7) (ii)
265.113(eH7Hiii)
265.113(eH7Hiv)
265.113(e)(7Hv)

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       SUBPART H - FINANCIAL REQUIREMENTS
t COST ESTIMATE FOR CLOSURE
after "hazardous
wastes" add ", or non-
hazardous wastes If
applicable under
265.113(d)"
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.1 13M"
265.1 42(a)(3)
265.142(a)(4)








            August 14, 1989 - Page 10 of 11

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                  RCRA REVISION CHECKLIST 64: Delay of Closure Period for
                        Hazardous Waste Management Facilities (cont'd)
     FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
                                                ANALOGOUS
                                               STATE CITATION
                                                                     STATE ANALOG IS:
EQUIV- I   MORE    BROADER
ALENT I STRINGENT I  IN SCOPE
                  PART 270 - EPA ADMINISTERED PERMIT PROGRAMS: THE
                          HAZARDOUS WASTE PERMIT PROGRAM
                            SUBPART D - CHANGES TO PERMIT
t  PERMIT MODIFICATION AT THE REQUEST OF THE PERMITTEE
add D.1.f. to
Appendix I
270.42. Appendix I




                           Modifications
                               Class
              D.  *
                 1.  *
                        Extension of the closure period to
                        allow a landfill, surface Impoundment
                        or land treatment unit to receive
                        non-hazardous wastes after final
                        receipt of hazardous wastes under
                        § 264.113(d) and (e)	
                              August 14, 1989 - Page 11 of 11

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 54 FR 33376-33398



Revision Checklist 64

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Monday
August 14, 1989
Part III

Environmental
Protection Agency
40 CFR Parts 264, 265, and 270
Delay of Closure Period for Hazardous
Waste Management; Final Rule

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 33376     Federal Register / VoL 54. No. 155 / Monday.  August  14. 1988 / Rules  and Regulations
 ENV1RONMEKTAL PROTECTION
 AGENCY

 40 CFR Parts 264,265 and 270

 [FRL-3S7S-2]
 BIN 2050-A871

 Delay of Closure Period for Hazardous
 Wast* Management Facilities

 AGENCY: Environmental Protection
 Agency.
 ACTION: Final rule.

 SUMMARY: The Environmental Protection
 Agency (EPA) is today amending
 portions of the closure requirements
 under subtitle C of the Resource
 Conservation and Recovery Act (RCRA)
 applicable to owners and operators of
 certain types of hazardous waste
 facilities. Today's final rule allows,
 under limited circumstances, a landfill,
 surface impoundment or land treatment
 unit to remain open after the final
 receipt of hazardous wastes in order to
 receive non-hazardous wastes in that
 unit This final rule details the
 circumstances tinder which a unit may
 remain open to receive non-hazardous
 wastes and describes the conditions
 applicable to such units.
 EFFECTIVE DATK November 13,1989.
 ADDRESSES: The public docket for this
 rulemaking is available for public
 inspection in Room S-201. U.S.
 Environmental Protection Agency, 401M
 Street SW, Washington. DC 20480, from
 9:00 a.m- to 4:00 p.m., Monday through
 Friday, excluding Federal holidays. The
 docket number is F-88-DCPP-FFFFF.
 The public most make an appointment
 to review docket materials by calling
 (202) 475-9327. The public may copy
 materials at the cost of 115 per page.
 Charges under $15.00 an waived.
 POM PUMTHCK INFORMATION CONTACT:
 The RCRA Hotline at (800) 424-6348 (toll
 free) or (202) 382-3000 to Washington,
 DC or Permits Branch, Office of Solid
 Waste (OS-MI) 133. Environmental
 Protection Agency. 401M Street SW.,
 Washington. DC 20480. (202) 382-4740.
IV. SecttonJby-Seeaon Analysis
  A.ApplicnbiUqr
   1. Surface Impoundments Not
     Liner end Leachate Collection Syatesi.
     Requirements
   i Landfills                        /
  , 3. Land Treatment Units
   4. Other Treatment  and  Storage .Facffi-
     ties
  B. Part 284 Standards
   1. General Conditions for Delay of Clo-
     sure (| 284.113(d))
     a. Demonstrations for Extensions to
       Closure Deadlines (1264Jll3(dMlQ
       (1) Design Capacity
       (2) Receipt of Non-Hazardous Wast*
        Within One Year
       (3) Compatibility of Wsstes
       (4) Incompatibility of Closure with
        Continued Operations
     b. Continued Compliance with Subtitle
       C Requirements
     c.  Changes   to  Facility   Plans
       (|2e4.113(d)(2)J
     d. Exposure Assessment mformanon
     e. Permit Revisions (1284Jl3(dM4))
   2. Additional Requirements to  Surface
     Impoundments that do not Meet Liner
     and Leachate  Collection System Re-
     quirements (| 2B4.113(e))
     a. Contingent  Corrective  Measures
       Plan (| 2M.ll3(eXll)
     b. Alternatives
       (1) Allemetive l—Removal  of Haz-
        anfaas Wastes (i 284.113(e)C2)l
        (a) Liquid and stodge removal
        (b) Relationship to the  mixture
          rule
       (2) Alternative i—Flushing Hazard-
        OS* Wastes
       (3) Alternative 3—Leaving Hazard-
        ous Wastes in Place
     6 Corrective  Action Requirements
       (I|284.113(eX4)and(S))
       (1)   Corrective   Action   Trigger
       (2) Other Media
       (3) Additional Corrective Measures
         Requirements
     d. BvaJusting the Progress e) Coneo-
       nve Action (| 2M.113(e) (SL let and
Preamble Outhne
L Authority
IL Background
m. Summary of Today's Rule
    3.     Notification     of
     (|2a4.ll2(dH2))
  C Part 270 Permit Modification Requests
    (127042)
  D. Conforming Changes
    1. Conforming Changes to Part 26S Inter-
     im Status Requirements
     •.Eligibility
     b. Ground-Water Monitoring end Cor-
       rective Action
     c. Applicability to New tnterhe, Status
       Units
V. State Authorization
  A. Applicability of Rules In Authorized
    States
  a Enact of Rule on State Authorizations
vl Executive Order 12291
VH. Paperwork Reduction Act
Vm. Regulatory Flexibility Act

L Authority

  These regulations are issued under the
authority of sections 1008,2002(a), 3004,
3005. and 3006 of the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1978. as amended (42 U.S.C. 6905.
6912(a), 6924.6925 and 6926).

IL Background

  Section 3004 of the Resource
Conservation and Recovery Act (RCRA)
requires the Administrator of EPA to
promulgate regulations establishing such
performance standards applicable to
owners and operators of hazardous
waste treatment storage, or disposal
facilities (TSDFs), as may be necessary
to protect human health and the
environment Section 3005 requires the
Administrator to promulgate regulations
requiring each person owning or
operating e TSDP to have a permit and
to establish requirements for permit
applications. Recognizing mat a period
of time would be required to issue
permits to all facilities, Congress created
"Interim status" in section 300S(e) of
RCRA. Owners and operators of
existing hazardous waste TSDFs who
qualify for interim status will be treated
as baring been issued permits until EPA
takes final administrative action on their
permit applications. The privilege of
carrying on operations during interim
status carries with it the responsibility
of complying with appropriate portions
of the section 3004 standards.
  EPA has issued several sets of
regulations to implement these RCRA
requirements. These regulations include
part 264 (which provides standards for
owners and operators of TSDFs that
have been issued RCRA permits) and
part 265 (which provides standards for
owners and operators of interim status
TSDFs) of title 40 of the Code of Federal
Regulations (CFR). Subpart G within
these two parts addresses requirements
for closing TSDFs and maintaining them
after closure if necessary. The subpart G
requirements hi both of these parts,
particularly the closure deadlines found
in |i 264.112.266.112.264.113. and
265.113, will be affected by the
promulgation of todsy's final rule.

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            Federal Register / Vol. M^ No. 155  /  Monday, August 14. 1969 /  Rules and Regulations      33377
  The requirements of 5 5 264.113 and
 265.113 were last amended on May 2,
 1986 (51FR16422). In the May 1986
 rulemaking, the Agency made
 conforming changes to the requirements
 in S3 264.113 (a) and (b) and 205.113 (a)
 and (b) requiring that closure be
 completed within ISO days after the final
 receipt of hazardous wastes rather than
 after the final receipt of wastes (51 FR
 16422). After promulgation of the May 2,
 1986 amendments, lawsuits were filed
 challenging the requirement that closure
 be completed within 180 days after the
 final receipt of hazardous waste. The
 litigants, Union Carbide Corporation
 (Union Carbide) and the Chemical
 Manufacturers Association (CMA),
 contended that this change was
 inconsistent with the Congressional
 intent evidenced in the legislative
 history of the Hazardous and Solid
 Waste Amendments (HSWA) which
 amended RCRA in 1984 regarding
 closure of surface impoundments.
 Further, the litigation contended that the
 change was unnecessary to protect
 human health and the environment, and
 that it would discourage waste
 minimization and other goals Congress
 expressed in HSWA. EPA entered into
 settlement discussions with the litigants.
 To date, no settlement of the case has
 been reached.
  On June 6,1988 (53 FR 20738), the
 Agency proposed a rule amending the
 parts 264 and part 265 closure
 requirements to allow owners and
 operators of landfills and surface
 impoundments meeting specific
 eligibility criteria to delay closure of
 their facilities to receive non-hazardous
 waste following the final receipt of
 hazardous waste. The rule proposed
general requirements for suiface
 impoundments and landfills wishing to
 remain open to receive non-hazardous
wastes and additional requirements for
 surface impoundments that did not meet
 the part 264 liner and leachate collection
system requirements.
  The Agency received 24 comment
letters in response to the June 6,1988
proposal. The comments received were
filed in Docket *F-68-DCPP-FFFFF and
are available for public review.
Additionally, the Agency has prepared a
summary of these comments and the
Agency's response in a document
entitled "Response to Comments to June
 6,1988 Proposed Rule to Allow Delay of
 Closure Following the Final Receipt of
 Hazardous Wastes (53 FR 20738)." This
 document is available for public review
 at the EPA RCRA Docket (Room 2427).
 401M Street, Washington. DC 20460.
   In brief, most commenters supported
 allowing certain hazardous waste
 management units the opportunity to
 delay closure to receive only non-
 hazardous wastes. These commenters
 felt that the proposal provided owners
 and operators of these hazardous waste
 management units with needed
 flexibility in their management
 operations. These commenters also
 agreed with the Agency position that the
 proposed requirements would provide
 adequate protection of human health
 and the environment.
   Commenters opposed to the proposal
 generally objected to its applicability to
 surface impoundments not satisfying the
 liner and  leachate collection aspects of
 the minimum technology requirements
 (MTR). Commenters expressed concern
 that these units could not be operated in
 a manner that would be adequately
 protective of human health and the
 environment. These commenters also
 contended that the Agency did not have
 the authoiity to allow these units to
 remain open, since RCRA section 3005(j)
 required them either to be retrofitted to
 meet MTR, or to cease the receipt of
 hazardous waste on November 8.1988.
 The Agency has carefully considered the
 comments received and is today
 finalizing the proposal with a number of
 changes which are discussed further in
 later sections of this preamble.

 III. Summary of Today's Rule
   Today the Agency  is promulgating
 requirements amending 40 CFR 264.113
 and 265.113, that will allow certain
 landfills, surface impoundments, and
 land treatment units to be eligible to
 delay closure to receive only non-
 hazardous waste after the final receipt
 of hazardous waste. The Agency
 believes that these units, including
• surface impoundments that do not meet
 the part 264 liner and leachate collection
 system elements of the minimum
 technological requirements (MTR)
 specified by RCRA section 3004(o). but
 from which hazardous wastes have been
 removed, can operate in an
 environmentally protective manner by
meeting the requirements set forth in
this rule. The requirements promulgated
in today's rule specify general
conditions applicable to all surface
impoundments', landfills and land
tfSatment^units delaying closure, with
additional conditions imposed on
surface impoundments that do not meet
part 264 liner and leachate collection
system requirements.
  Owners and operators of facilities
delaying closure under today's rule will
be required to operate under the full
permit requirements of 40 CFR part 264
(or part 265 requirements until a permit
is issued), including corrective action
requirements. In addition, surface
impoundments not in compliance with
liner and leachate collection system
requirements will be required to remove
all hazardous waste to the extent
practicable. Facilities currently in
interim status that meet the
requirements of today's rule may delay
closure while the permit application is
being reviewed.
•  The general requirements in
{§ 264.113(d) and 265.113(d)  applicable
to all owners and operators wishing to
delay closure are being finalized as
proposed with a few minor clarifying
changes. Theae requirements are
illustrated in Exhibit 1. Owners and
operators wishing to delay closure under
today's final rule must request a permit
modification at least 120 days prior  to
final receipt of hazardous wastes, or, if
the facility is in interim status, submit
an amended part B application (or a part
B application if one has not been
previously submitted) at least 100 days
prior to the final receipt cf hazardous
wastes. Owners or operators of units
that received their final volume of
hazardous wastes before promulgation
of today's rule may delay  closure if they
submit the required demonstrations and
permit modification (or amended part B
application) within 90 days of today's
Federal Register notice. Facilities which
lost interim status prior to today's notice
are ineligible to delay closure. These
units may, of course, submit permit
applications, which, if approved, could
allow them to receive non-hazardous
wastes pursuant to the applicable
requirements of today'* rule.
BILL!
      COOCMM-H-M

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33378     Fadatal Register / Vol 54. No. 155 / Monday. August 14.1989 / Rules and Regulations
                                       Exhibit I
                 Requirements Applicable to All Facilities
                           Wishing to Defer Closure /
                               Submit Permit Modification/
                             Revised Part B Application with
                            Demonstrations and Revised Plans
                                of §§264.113(d)/265.113(d)

                                              120 Days (180 Days for Interim Status)
                                     Rnal Receipt of
                                     Hazardous Waste

•
^
1
1
1
1
I. _

Non-MTR Impoundments 1
Comply with § §264.1 13(e) I
and 265.11 3 (•). See
Exhibit 2 J
                                          T
                              Receive Non-Hazardous Waste/
                                 Continue to Comply with
                                        Subtitle C

                                        Notification
                                        of Closure

                                              30 Days (150 Days for Interim Status)
                                      Rnal Receipt of
                               Non-Hazardous Waste/Closure

                        Net*: If a permit or permit modification Is denied at any
                              time, or Interim status terminated for the affected
                              unit, closure pursuent to Si 2*4.113(a) and (b) or
                              26S.113(a) and (b) must be Initiated.
S9509<-l

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           Federal Regbtar / VoL 54, No. 155 / Monday. August 14, 1969 / Rotes and Regulations     33379
  The request for a permit modification
or the amended part B application mu»t
include demonstrations that the unit has
the existing design capacity to manage
non-hazardous waste, and that the non-
hazardous wastes are not incompatible
with any hazardous or non-hazardous
wastes remaining in the unit In
addition, certain facility information
including the waste analysis plan,
ground-water monitoring  plans, closure
and post closure plans and cost
estimates, financial assurance
demonstrations and the human exposure
assessment information required under
RCRA section 3019. must be updated as
necessary to account for receipt of only
non-hazardous waste.
  Owners and operators  of units
remaining open under today's rule must
also continue to comply with all
applicable part 264  permit requirements
(or part 265 requirements until a permit
is issued). Units may not  remain open to
receive only non hazardous wastes if
the Regional Administrator determine*
that continued operation of the unit or
facility cannot be conducted in
accordance with these requirements
ensuring the protection of human health '
and the environment Finally, units-must
be closed in accordance with the
approved closure plan and the subpart
G regulations applicable to hazardous
waste management units, including
notification of the Agency in accordance
with the deadlines specified in
FS 264.112(d)(1)and265.112(d)(l).
  Additionally, the owner or operator
must initiate closure under the  following
circumstances: A request to modify the
permit to manage only non-hazardous
wastes is denied: the permit is
terminated or is revoked at any time: a
RCRA permit is denied for interim status
facilities; or interim status is otherwise
terminated. Closure most be conducted
in accordance with the approved closure
 plan and the deadlines currently in
 1264.113 (a) and (b) or { 285.113 (a) and
 fl*
  Today's rule also establishes
^additiopal requirements applicable to
 surface impoundments that do not
 satisfy the liner and leachate collection
 system requirements specified under
 RCRA section 3005(0 or have not
 received a waiver from these
 requirements, but wish to delay closure
 to receive non-hazardous waste. These
 additional requirements, including
 removal of hazardous waste,
 accelerated corrective measures, and
 strict limitations on continued
 operations following detection of a
 release from the unit, will ensure that
 these  units are adequately protective of
 human health and the environment. The
 specific requirements are illustrated in
 Exhibit 2 and  summarized briefly below.

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33380	.Federal Register / Vol. 54, No. 155 / Monday, August 14.1989 / Rules and Regulations


                                     Exhibit 2
          Surface Impoundment/Waste Removal Alternative
                          Submit Permit Modification/Revised
                         Part B Application with Demonstration*
                          and Revised Plans of §§264.113(d)/
                         265.113(d) and Contingent Corrective
                                   Measures Plan
     Release Detected-
    Implement Corrective
         Measures
       Closure if No
   Substantial Progress*
                                        f 120 Days (180 Days for Interim Status)
                              Final Receipt of Hazardous
                                      Waste
I 90 Days

Removal of I
Hazardous Waste 1
\
i
Receive Non-
Hazardous Waste
\
i
Final Receipt of
Non-Hazardous Waste
\
i
Closure*

r/

i
L (
\(
                                                               Release Detected-
                                                              Implement Corrective
                                                                   Measures
                                                                  Closure if No
                                                              Substantial Progress*
                       * Unit continues to be subject to corrective
                           action requirements, If applicable.
KUJHO COM MW-IO-C

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            Federal Register / Vol. 54. No. 155  /  Monday. August 14.  1989 / Rule*  and Regulations     333C1
   Owner* and operators of surface
 impoundments not meeting liner and
 ieachate collection system requirements
 •nust prepare and submit a contingent
 Directive measures plan with their
 request to modify their permit (or for
 interim status facilities, with their
 amended part B application). The plan
 must include a description of corrective
 measures that can be implemented
 quickly if a release is detected and, if
 waste may continue to be received, a
 demonstration that continued receipt of
 wastes following detection of a release
 will not impede implementation of the
 corrective measures. (The contents of
 the plan are discussed in more detail in
 rv.B.2.a of today's preamble).
  Under the final rule, owners and
 operators of surface impoundments not
 meeting double liner and Ieachate
 collection system requirements and who
 wish to delay closure must remove all
 hazardous liquids and remove all
 sludges from the impoundment to the
 extent practicable. If a release is
 detected either prior to or after final
 receipt of hazardous wastes at a surface
 impoundment from which hazardous
 wastes have been removed, corrective
 measures must be implemented within
 one year from the date of release.
 Continued receipt of non-hazardous
 wastes while corrective measures are
 being implemented may occur only if the
 twner or operator.already has an
 ipproved contingent corrective
 measures plan (or a full corrective
 action plan) that accounts for the
 continued receipt of non-hazardous
 wastes and demonstrates that such
 continued receipt of wastes will not
 impede the progress of the corrective
 action. If the corrective measures plan
 has not been approved, receipt of waste
 must cease until such a corrective
 measures plan has been approved
  If an owner or operator fails to make
substantial progress in conducting
corrective action, either by failure to
initiate actual remediation or
containment activities within  the first
year and/or subsequently failing to
implement actions leading to substantial
progress towards achieving the facility's
ground-water protection standard
 (GWPS) or background levels, if
applicable, he must initiate closure of
the impoundment in  accordance with
the requirements of subpart G of part
264 or 265. Substantial progress towards
achieving the facility's GWPS or
background levels will be determined on
a case-by-case basis. The achievement
of substantial progress will be measured
by whether the owner or operator has
corrective action measures in place
 vithin one year, and has met  significant
plan milestones or deadline* in the
compliance schedule, permit or
enforcement order that establishes
timeframes for achieving the facility's
GWPS, or background levels. Today's
rule also includes administrative
procedures providing opportunity for
public comment on the Regional
Administrator's decision that
substantial progress has not been made .
and that closure of the unit is therefore
required.
IV. Section-by-Section Analysis
  The following sections of this
preamble address the major issues
raised by commenters on the proposed
rule and present the Agency's response
to these major issues and rationale for
changes to the proposed rule. The
preamble is arranged in a section-by-
section sequence for ease of reference.
Section A addresses the applicability of
the rule. Section B discusses the part 264
technical requirements applicable to
permitted facilities. The part 270
procedural requirements applicable to
permitting are addressed in section C.
Section D discusses the conforming
changes to 265 interim status standards.
The requirements proposed in parts 264
and 265 are substanb'vely identical but
have slightly different procedural
requirements.

A. Applicability
  Today's rule is restricted to permitted
and interim status landfill, land
treatment, and surface impoundment
units that (1) Are in compliance with
applicable permit or interim status
requirements (except double liner
requirements); (2) cease to receive
hazardous wastes; and (3) will
subsequently receive only non-
hazardous waste. The proposed rule did
not extend the option to delay closure to
land treatment units, but specifically
requested comments on whether the
option should be available to such units.
After considering public comments
received, the Agency has decided to
Allow land treatment units to delay
closure if they satisfy the eligibility
criteria in I 264.113(d) or i 265.113(d).
This change is discussed in greater
detail in section IV.AJ. below.
  The rule does not extend the option to
delay closure to units that lost interim
status. Today's rule also does not
extend the option to delay closure to
manage only non-hazardous wastes to
storage or treatment tanks, container
storage areas, waste piles, or.
incinerators. If owners or operators of
such units wish to receive non-
hazardous wastes after the final receipt
of hazardous wastes, they must first
comply with the current closure
 requirements. The Agency believes that
 the activities necessary to close storage
 units and incinerators (e.g., waste
 removal and decontamination) are
 compatible with the future use of the
 unit and therefore requiring these units
to conduct closure prior to receiving
 only non-hazardous wastes will not
 impose an undue burden on owners or
 operators.

 1. Surface Impoundments Not Meeting
 Liner and Leachate Collection System
 Requirements

    The proposal required surface
 impoundments not meeting the MTR
 liner and Ieachate collection system
 standards to meet the general conditions
 applicable to all units (S! 264.113(d) and
 265.113(d)) as well as additional
 requirements (5 J 284.113(e) and
 265.113(e)). The proposed rule (Option 3,
 I 284.113(e)(3]) allowed impoundments
 in which wastes remained in place (Le.,
 disposal impoundments) to delay
 closure only if they were not leaking at
 the time of the final receipt of hazardous
 •waste. As described below, the
 requirements of §5 264.113(e) and
 265.113(e) have been modified in the
 final rule in response to comments
 received on the proposal
    Many commenters favored the
 provision of the proposal allowing non-
 MTR surface impoundments  to delay
 closure and provided anecdotal
 information in support  of it Other
 commenters opposed the proposal,
 expressing concern that it would
 adversely impact human health and the
 environment Those commenters
 asserted that the proposed rule would
 violate the requirements in RCRA
 section 3005(j) which require that
 surface impoundments that have not met
 MTR cease receipt storage, and
 treatment of hazardous wastes on
 November 8,1988. Commenters further
 argued that because all hazardous
 wastes would not be removed from the
 impoundment (for instance, under one of
 the options, no hazardous wastes were
 required to be removed), and because
 the facility would not cease activities
  that involve the management of the
 remaining hazardous wastes, the unit
  should be considered an active
  hazardous waste surface impoundment
  and therefore would be in violation of
  section 30050) of RCRA. These
  commenters further asserted that the
  proposal violates RCRA section
  1003(a)(5) because the proposal achieves
  protection of human health and the
  environment by remediating releases,
  rather than by preventing releases,
  which they argued is required by the
  statute.

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 33382    ' Federal Register / VoL  54. No. 155 7 Monday. August 14. 1989 / Rule« and Regulations.
  One of these commenten also
 questioned the Agency's technical
 judgment in allowing hazardous waste
 to remain in surface impoundments
 lacking double liners and leak detection
 systems. The commenter noted that the
 Agency previously has been unwilling to
 rely solely on ground-water monitoring
 and corrective action to detect and
 cleanup releases, favoring instead a
 combination of design and operating
 requirements to minimize the potential
 for releases. The commenter also
 pointed out that the Agency had not
 presented any data with this rulemaklng
 indicating that the Agency now found
.that ground-water monitoring and
 corrective action were more effective
 than it believed in the past Finally, the
 commenter expressed concern that
 placing additional liquid non-hazardous
 wastes into a surface impoundment
 containing hazardous wastes could
 increase the pressure head and.
 consequently, increase the chances that
 hazardous constituents from the
 hazardous wastes would escape into the
 environment
  The Agency is not persuaded by the
 commenters' legal arguments based on
 section 3005{j). The Agency does not
 believe that the use of the term
 "storage" in RCRA section 3005(j) ban
 the continued receipt of non-hazardous
 wastes by impoundments  that may
 contain hazardous wastes. The statute
 clearly requires that non-MTR surface
 impoundments cease receiving
 hazardous wastes by November 8,1988.
 and all non-retrofitted impoundments
 must comply with this requirement The
 statute does not itself require closure of
 these units. In a colloquy clarifying
 statutory language. Senators Randolph
 and Chafee indicated that the intent of
 the provision was not to require
 retrofitting for hazardous waste
 impoundments that receive or store
 hazardous waste prior to November 8.
 1988. but cease to receive  hazardous
 waste after that date, and that requiring
 such closure would not be necessary if
 continued waste management in the
 impoundment were conducted in a
 manner ensuring continued protection of
 human health and the environment (130
 Cong. Rec. S0182 daily ed. July 25.1984).
  The Agency does, however, agree
 with the commenten that section
 1003(a)(S) establishes the goal of
 managing hazardous waste properly in
 the first place, "thereby reducing the
 need for corrective action at a future
 date." However, the Agency believes
 that Congress intended to allow the
 Agency to determine the type of
 regulatory controls needed to provide
 "proper management" for each type of
hazardous waste management unit This
provision does not prohibit non-
retrofitted surface impoundments from
delaying closure to receive non-
hazardous wastes. Closure of these units
need not be required if the Agency
determines that the wastes in the   ...
impoundment* can still be managed in
such a way as to reduce the need for
future corrective action.
  The Agency has re-evaluated the
proposal in light of the technical and
policy concerns raised In the comments.
Upon reconsideration, the Agency has .
determined that only those non-
retrofitted impoundments that meet the
removal requirements described in
Option 1 of the proposal will be eligible
to delay closure. Surface impoundments
from which wastes are not removed will
not be permitted to delay closure.
Further, flushing of impoundments to
achieve only a 95 percent volume
displacement is not sufficient under the
final rule as evidence of waste removal
  EPA. as noted by the commenten.
generally has adopted regulatory
requirements which impose both
prevention and detection and
remediation requirements for land
disposal units. This position was fint
articulated in the Agency's July 26,1982
rulemaking establishing standards for
land disposal facilities (47 FR 32274).
The 1982 rule promulgated two sets of
standards for landfills, surface
impoundments, waste piles, and land
treatment units. The design and
operating standards were intended to
minimize the formation and migration of
leachate and thus reduce the likelihood
of releases, while the ground-water
monitoring and response requirements
were promulgated to ensure that
releases would be detected and
corrective action measures implemented
in the event of a release. The Agency
reiterated its position on these dual
goals of prevention and protection in its
May 2.1986 rale establishing additional
closure, post-closure care, and financial
responsibility requirements for
hazardous waste facilities. In the
preamble to the 1986 final rule, the
Agency stated that "the hazardous
waste regulations incorporate a two-part
'prevention and care* system whose
overall goal is to minimize the formation
and migration of leachate to the
adjacent subsurface soil ground water,
or surface water." (51 FR 18432) The
Agency also relied on this position in
the May 29.1987 (52 FR 2218), proposal
to extend double liner and leachate
collection standards to certain new.
replacement and expansion landfills
and surface impoundments not required
to meet these standards under section
3004(o).
 . The Agency also agrees with the
commenters that proposed Options 2
and 3 failed to require measures
sufficient to prevent releases from
impoundments. Consistent with
previous policies. EPA is not willing to
rely solely on detection and remediation
to provide protection for human health
and the environment at non-retrofitted
impoundments which retain significant
amounts of liquid. Under both of these
options, particularly Option 3,
significant amounts of hazardous liquids
would remain in surface impoundments
that lack liners and leachate collection
systems or have liners that do not meet
the standards that EPA would require
for new units. EPA shares the
commenter's concern that adding
additional non-hazardous liquids could
increase the pressure level in these
impoundments thereby increasing the
potential for releases of the remaining
hazardous wastes from these
impoundments. On re-examination the
Agency no longer believes that the
enhancements to the remediation
process that the Agency had proposed
(such as accelerated corrective action)
are sufficient to mitigate the possibility
that a release may escape early
detection and prompt remediation.
Consequently, the Agency believes that
protection of human health and the
environment requires prompt closure of
impoundments retaining significant
amounts of hazardous waste. Closure
will supply necessary "preventative"
measures by requiring the owner or
operator to either remove all hazardous
wastes and waste constituents or to
eliminate all free liquids and install an
impermeable cap to reduce the potential
for future releases of hazardous
 constituents.
  The Agency continues to believe that
 proposed Option 1 does, however.
 require sufficient preventative measures
 to ensure continued protection of human
 health and the environment Under this
 option, the owner or operator must
 remove all liquid hazardous wastes and
 remove hazardous sludges to the extent
 practicable. The Agency believes that
 the significant reduction in the quantity
 of waste in the unit will reduce the
 threat posed by any release to the
 environment While some small amount
 of hazardous sludges may remain, the
 required removal activity significantly
 decreases the likelihood that a release
 of hazardous constituents, leached from
 the sludge at levels presenting a threat
 to human health and the environment
 will occur.

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           Federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules  and Regulations     33383
  To further ensure continued
environmental protection, the Agency
has retained the requirements it
proposed to expedite the detection and
remediation process. Units delaying
closure will be required to receive
permits and to operate under part 264
standards including ground-water
monitoring standards. These units will
therefore be subject  to the same ground-
water monitoring requirements as units
meeting all MTR. Further, to ensure
prompt response and remediation in the
event of a release, accelerated
corrective action and/or closure of units
is required.
  Surface impoundments not meeting
liner and leachate collection systems
requirements must submit a contingent
corrective measures plan describing
interim measures for handling a release
if it occurs and promptly implement this
plan if a release is detected. Detection of
releases will be determined using either
background levels or the ground-water
protection standard (GWPS) if one has
been established. Further, owners and
operators will not be allowed to delay
implementation of corrective measures
while a GWPS is being established.
  The Agency therefore continues to
believe that the combination of waste
removal and stricter detection and
remediation requirements of
§! 264.113(e) and 265.113(e) will protect
human health and the environment and
be consistent with the objectives and
specific requirements of RCRA.
Accordingly, the Agency is finalizing
revised requirements in § § 264.113(e)
and 265.113(e) which allow surface
impoundments not meeting liner and
leachate collection system requirements
to delay closure if hazardous wastes are
first removed and other eligibility and
operating criteria are met. Section IV.B.2
discusses in more detail how the
proposed requirements have been
modified in response to comments.
2. Landfills
  The proposed rule would allow
landfills that meet the general
requirements set forth in 55 264.113(d)
and 265.113(d) to delay closure. One
commenter opposed allowing landfills
not meeting MTR to delay closure. The
commenter contended that landfills not
meeting MTR would pose risks of
release similar to those posed by non-
retrofitted surface impoundments.
  The Agency has considered the
commenter's concerns, but is
promulgating the final rule as proposed
allowing landfills to delay closure if
they meet the requirements in
S 264.113(d). Existing landfills are not
subject to the provisions of Section
3005(j) of RCRA that require surface
impoundments to retrofit or cease
receipt of hazardous waste by
November 8,1988. Existing landfills are,
however, subject to the requirements of
section 3004(o) of RCRA. Under section
3004(o) existing landfills must retrofit to—
meet MTR'or cease receipt of hazardous
waste only if they are laterally
expanded, or otherwise trigger the
replacement or new unit definitions.
  The Agency believes that since
existing landfills not satisfying MTR
may remain in operation to handle
hazardous wastes, they should be
allowed to delay closure to receive only
non-hazardous wastes if they meet the
requirements of S 264.113(d) or
S 265.113(d), as applicable. The Agency
also disagrees with the commenter's
view of the risks presented by receipt of
non-hazardous waste at landfills. When
evaluating a request to delay closure of
an existing landfill, the Agency will
carefully consider the compatibility of
the hazardous and non-hazardous waste
to be managed in the landfill  in addition
to all other requirements in J} 264.113(d)
and 265.113(d). Requiring landfills to
comply with §§ 264.1I3(e) and 265.1l3(e)
would result in units receiving only non-
hazardous wastes being subject to more
stringent requirements than landfills
receiving hazardous wastes.
Accordingly, under today's rule, landfills
are subject only to the requirements in
§5 264.113(d) and 205.113(d) to delay
closure.

3. Land Treatment Units

  The proposed rule did not extend the
option to delay closure to land treatment
units. The Agency did, however,
specifically request comment on
whether the proposal should  be
extended to land treatment units.
  The majority of commenters on this
issue supported extending the option to
delay closure-to land treatment units.
Comments favoring the option pointed
out that many land treatment facilities
already manage both hazardous and
non-hazardous waste streams.
Commenters further asserted that land
treatment units pose a lower risk to
ground water than surface
impoundments and landfills because
hazardous constituents are degraded
and immobilized as part of treatment,
and that the destruction efficiency of a
land treatment unit may be improved
when non-hazardous wastes  are
combined with hazardous wastes. One
commenter who opposed allowing land
treatment units to delay closure stated
that increased pressure and potential
explosive and subsidence hazards could
be caused by the acceptance of non-
hazardous wastes.
  The Agency has considered these
comments and has expanded the final
rule to allow land treatment units to
delay closure if they satisfy the
eligibility Criteria of §5 264.113(d) and
265.113(d). The Agency believes that
land treatment units can delay closure
and operate in a manner that is
protective of human health and the
environment. All land treatment units
that delay closure will continue to be
subject to all subtitle C requirements for
land treatment units and the
requirements of § S 264.113(d) and
265.113(d) of today's rule. Existing
subtitle C regulations require owners
and operators of land treatment units to
demonstrate that the hazardous
constituents in the subtitle C wastes will
be completely degraded, transformed or
immobilized in the treatment zone. As
part of the permit or permit modification
(or amended Part B application for
interim status facilities] required to
delay closure, these owners and
operators will be required to
demonstrate that receipt of non-
hazardous waste will not inhibit the
degradation, transformation or
immobilization of the hazardous wastes
in the treatment zone. These factors,
together with the other requirements of
§§ 264.113(d) and 265.113(d) will ensure
that land treatment units delaying
closure are adequately protective of
human health and the environment.

4. Other Treatment and Storage
Facilities

  The proposed rule would not allow
storage units  (i.e., storage and treatment
tanks, container storage areas, or waste
piles) or incinerators to delay closure. In
the preamble to the proposal, the
Agency stated that if these units wanted
to delay closure in order to receive only
non-hazardous waste, they would first
be required to close in compliance with
the requirements of subpart G. The
requirements for closure of these units
involve removal or decontamination of
all wastes and waste residues,
containers, liners, bases and
contaminated soils, equipment and other
containment system components (40
CFR 264.178, 264.197. 264.258. 264.351,
265.197, and 265.351). These closure
requirements are not incompatible with
the reuse of these units for receipt of
only non-hazardous waste. Once the
unit has been emptied of all hazardous
wastes and decontaminated, it could
receive non-hazardous waste as a
subtitle D facility, without being  subject
to the stricter provisions of today's rule.
   Only one commenter recommended
that tanks and container storage areas
be allowed to delay closure. The Agency

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33384     Fwknl Register / VoL 54. No. 15S / Monday,  August 14. 1969 / Rules and Regulations
continues to believe nut because the
activities which would be necessary to
delay closure are so similar to activities
required to dose these units, prohibiting
storage units from delaying closure
under today's role will not impose an
undue burden on the owners and
operators of these units. Therefore, the
final rule is promulgated as proposed
and is not applicable to storage and
treatment tanks, container storage
areas, waste piles and incinerators.

B. Part 264 Standards
  The Agency proposed to amend
Si 284.112(d) and 264.113 (a), (b). and
(c). and to add new paragraphs (d) and
(e) to S 264.113. Sections 264.113 (a) and
(b) require a facility owner or operator
to treat dispose, or remove ail
hazardous wastes within 90 days and to
complete closure activities within 180
days of the final receipt of hazardous
wastes. Further. 5 284.112(d) establishes
that the date the owner or operator
expects to begin closure, which triggers
the notification requirements, is no later
than 30 days altar the receipt of the last
known volume of hazardous wastes.
Under 55 264.113 (a) and (b) and 265.113
(a) and (b). extensions to the closure
period may be granted in certain limited
circumstances. Today's rule provides an
additional justification for an extension
of the closure period to allow for
management of only non-hazardous
wastes. Additionally, a conforming
change is being made to 55 284.112(d)
and 264.113(c) to address deadlines for
closure of units that qualify to delay
closure. The changes to 5 284.113 being
promulgated today supplement existing
part 264 standards and provide
assurance that public health and the
environment will be adequately
protected at units delaying closure.

1. General Conditions for Delay of
Closure (S 264.113 (d)}
  Section 264.113(d) of today's rule
establishes .the general requirements
applicable  to all units delaying closure
to receive non-hazardous wastes after
the final receipt of hazardous wastes.
These requirements supplement existing
subtitle C requirements. The f 264.113(d)
requirements are discussed in ram
below.
  a. Demonstration* for Extensions to
CJosun Deadline! (§304.113fd)(W.
Section 264.113(d)(l) of the proposed
rule required owners and operators of
facilities wishing to delay closure to
demonstrate as part of their permit
application or modification that (1) The
unity*) has adequate existing design
capacity to continue to receive waste:
(2) then is a reasonable likelihood that
non-hazardous wastes will be received
in the unit within one year of the final
receipt of hazardous waste; (3) non-
hazardous wastes received will be
compatible with any other wastes
remaining in the unit (4) closure of the
unit is incompatible with continued
operation of the facility; and W the .
facility will continue to be operated in "
compliance with all applicable permit or
interim status requirements.
  The Agency received a number of
comments regarding these
demonstrations. Most commenters
recommended that the required
demonstrations be modified or deleted
from the final rule. The Agency
continues to believe, however, that the
demonstrations required in the proposal
are necessary to ensure that units
delaying closure to receive only non-
hazardous waste remain adequately
protective of human health and the
environment In many cases, the
required demonstrations are the same as
those currently required under
f i 2M.113(b) and 265.113(b) for units
wishing to temporarily suspend
hazardous waste management activities.
The Agency's rationale for retaining
each of the demonstrations is presented
below.
  (1) Design Capacity- One commenter
recommended that the option to delay
closure not be restricted to a facility's
original design capacity. The Agency
continues to believe that it is prudent to
restrict the option to delay closure to the
existing design capacity. In proposing
these changes to the closure
requirements, the Agency recognized
that closure of a unit while the unit has
remaining capacity to receive non-
hazardous wastes could disrupt facility
operations or impose substantial
economic burdens on the facility owner
or operator. Where existing capacity can
be utilized to manage non-hazardous
wastes in a manner that remains
protective of human health and the
environment extensions to the closure
period may be allowed. The Agency
believes that it Is unwise to allow the
expansion of subtitle C units for
managing non-hazardous wastes, thus
resulting in large unit* subject to subtitle
C. Finally, the Agency does not believe
that many owners and operators would
want to expand their subtitle C units or
facilities simply to receive more non-
hazardous waste, since such lateral
expansion of surface impoundments and
landfills would trigger the liner and
 leachate collection system requirements
of RCRA section 3004(o). The Agency
 ff^pimmm^y that if additional non-
 hazardous waste capacity is needed, a
 facility choose to construct a unit
 designed to handle non-hazardous
wastes hi accordance with Subtitle D
requirements.
  (2) Receipt of Non-Hazardous Waste
Within One Year. A commenter   —
suggested that the required
demonstration that wastes win be
received within one year of the final
receipt of hazardous waste be
documented (e.g.. through submission of
contracts indicating anticipated receipt
of non-hazardous waste) and that the
time period within which non-hazardods
wastes must be received should be
shortened to three months. The Agency
does not believe that such changes are
necessary. The provision allowing a unit
to remain open if it receives additional
wastes within one year of the final
receipt of hazardous wastes is
consistent with the provisions allowing
continued receipt of hazardous waste. In
implementing It 264.112(d)(2) and
285.112(d)(2). the Agency currently
determines on a case-by-case basis the
documentation that best supports the
claim that additional wastes will be
received and that sufficient design
capacity is remaining. In evaluating
these submissions, the Regional
Administrator generally takes into
account a number of factors including
those suggested  by the commenter. such
as: (1) Unit or facility characteristics,
including capacity and operating
conditions; (2) demand for the facility:
(3) the owner or operator's business
plans: and (4) the history of facility
operations (OSWER Policy Directive
*947aoO-6, January 1987, pp. 3-16 and
3-17). Finally, the eligibility
requirements, including the
requirements to continue to comply with
all permit conditions or interim status
standards, if applicable, will ensure that
units remaining open following the final
receipt of hazardous waste are
protective of human health and the
 environment
   (3) Compatibility of Wastes. The
 Agency received comments on the
 compatibility demonstration
 (Si 264.ll3(d)(1)(tv) and
 285.113(dMl)(iv)) only with respect to
 landfill units. Several commenters
 challenged the Agency's suggestion in
 the preamble that it would be difficult to
 demonstrate that municipal solid wastes
 would be compatible with hazardous
 waste* remaining hi landfill units, and
 therefore it would be unlikely that
 receipt of municipal solid wastes would
 be allowed. The Agency continues to
 believe mat in most cases, it will be
 difficult to demonstrate that municipal
 solid waste* will be compatible with
 hazardous waates remaining in a unit
 delaying closure. Problems which are
 anticipated include subsidence.

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           Federal Register / VoL 54. No. 155 / Monday. August 14. 1989  /  Roles and Regulations     83385
settlement of the cap. or leachaie and
methane gas production. The Agency
acknowledges, however, that some unite
have been specifically designed to co-
manage both hazardous and municipal
solid wastes. For these types of unite.
the Agency agrees with the commenter
that it may not be difficult to
demonstrate that the continued receipt
of non-hazardous wastes will be
compatible with the design of the unit
and with the hazardous wastes
remaining in the unit In cases where the
unit has not been designed specifically
to handle hazardous and non-hazardous
wastes, however, the Agency still
believes that it will be difficult to
demonstrate that the addition of non-
hazardous wastes will be compatible
with the remaining wastes in the unit
and with the facility design and
operating requirements of part 264. The
requirements of 55 2B4.113(d)(l)[iv) and
265.113(d)(l)(iv) therefore remain
unchanged. These requirements are
applicable to all types of unite eligible to
delay closure.
  (4) Incompatibility of Closure With
Continued Operations. A few
commenters  expressed confusion about
the requirement that owners and
operators demonstrate that closure of
the unit would be Incompatible with
continued operation of the facility.
  After considering the commenters'
concerns, the Agency has decided to
retain the requirement that owners and
operators of unite delaying closure
demonstrate that closure of the unit  '
would be incompatible with continued
operation of the facility
(S 264.113(d)(l)(iv)l. This requirement is
consistent with existing requirements
for requesting an extension to the
deadlines to begin closure for owners or
operators wishing to receive additional
hazardous wastes, and has not proved
to be .an implementation concern to
date. This demonstration can be
supported by submission of information
showing the  role of Qw unit in the
facility's overall wast* management
scheme. The practical, rather than
economic, disruptions which closure of
the unit with remaining capacity would
have on facility operations should be
evidenced.
  b. Continued Compliance With
Subtitle C Requirements, A few
commenters asserted that the Agency  .
does not have the authority to require
continued compliance with Subtitle C
permitting requirements because unite
delaying closure would be "?tnagtng
only non-hazardous wastes. One
commenter recommended that the
Agency not require compliance with
both State and local regulations in .
addition to Subtitle C requirements to
•void duplicate and potentially
conflicting requirements. Finally one
commenter suggested that the Agency
clarify that surface impoundments not
mating liner and leachate collection
system requirements need not comply
with the permit requirements for
retrofitting.
  RCRA provides the Agency ample
authority to regulate any unite that
received hazardous waste after
November 19. 1980. Unite wishing to
delay closure are currently regulated
under Subtitle C and remain regulated
as long as hazardous constituents from
those wastes remain in the units, unless
the owner or operator obtains a delisting
or satisfies clean closure requirements.
  In specifying m the preamble to the
proposal that unite comply with
applicable State and local regulations,
the Agency was merely restating
existing requirements. Currently, an
owner or operator is subject to all
applicable State and local regulations in
addition to applicable Federal
requirements.
  Finally, one cflrnuwnfor pointed out
that the requirement for surface
impoundments not designed to satisfy
the MTR liner and leachate collection
system requiremente to comply with all
part 264 permit requiremente could
cause confusion. The Agency wishes to
clarify that the MTR liner and leachate
collection requiremente are not
applicable permit requiremente for
surface impoundments operating «nAfir
a 1264.113(e) and ! 265.113(e)
extension. It should be noted mat lateral
expansion of unite delaying closure
pursuant to 11264.113(d) and (e) is not
allowed. Lateral expansion of such unite
would trigger the MTR requirements of
13004(o) as weO as constitute a
violation of today's regulation.
  c. Changes to Facility Plans
(§2O4.U3{d)(2)). Section 2B4.113(d)(2)
proposed that owners and operators
submit with their permit m«yiiftf»«Hfm
request necessary and appropriate
changes to the waste analysis plan,
ground-water monitoring plan and
response plan, closure and post-closure
plans end cost estimates, and
demonstrations of financial assurance
required elsewhere in part 264. These
                kllel existing
 requiremente that facility plans be
 revised to reflect substantial changes in
 the types of hazardous wastes tnfif\g
 handled or the hazardous waste
 management practices employed.
 Similarly, the Agency believes that to
 ensure proper "^
reflect changes in unit operations for
managing only nan -hazardous wastes,
  The Agency received very few
comments on the proposed requirement
to modify the ground-water monitoring
plan, cneure and port-closure plans and
cost estimates, and financial assurance
demonstrations (responses to these
comments appear in the Comment
Response Document). However, a
number of commenters objected to the
requirement to revise the waste analysis
plan. One commenter stated that
modifying the waste analysis plan is
unnecessary because wa^te
compatibility already will have been
demonstrated under the requiremente of
12B4.113(d)fl)(iii). In addition, this
commenter stated that the Subtitle C
waste analysis program cannot be
adapted to municipal solid wastes
because of the difficulty of obtaining  the
necessary data. Under Subtitle C,
generators of hazardous wastes must
prepare a manifest identifying the
contents of each shipment of waste. In
contrast, generators of municipal solid
wastes are not required to compile the
data necessary to characterize mete
wastes. Thus, municipalities and
commercial trash collectors would be
unable to provide the TSDFs with data
on the exact content of municipal solid
waste (generally household wastes)
which would be necessary to comply
with the waste ant lysis plan
requirements.
  The Agency continues to believe that
revision of the waste analyst: plan is
necessary and practicable in most cases.
Such information wiO be required to
support the compatibility demonstration
in 1264.113(d)(lXiii).The Agency would
expect the compatibility demonstration
required in 1264.113(d){lXUi) to cross-
reference the waste analysis plan as
evidence that non-hazardous waste
streams are compatible with previously
managed hazardous wastes.
   It should be noted, however, that (he
final rule requires that the waste
analysis plan be revised "as necessary
and appropriate" to account for the
addition of additional or new non-
hazardous waste streams. The Agency
acknowledges that in some cases the
 Subtitle C procedures for conducting
 physical **™ *i»*mi«»«l waste analyses
 and me requirements to prepare a waste
 analysis pun describing these
 procedures may be difficult to apply to
 munici]
lures may
pal solid
wastes. For example.
 receiving non-hazardous wastes,
 selected plans should be revised to
 generators of municipal trash (e^~
 households) do not have the data  .
 necessary to characterize the wastes. In
 such eases, the Agency may allow the
 owner or operator to use his own
 knowledge about the waste streams to

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33386     Federal Register / Vol 54. No. 155  /  Monday. August 14. 1989  / Rules and Regulations
make the required compatibility
demonstration («.g, local ordinances
that prohibit certain types of wastes
from being disposed in the trash or
visual inspections of truckloada). This -
flexible approach is consistent with
current Agency practices.
  d. Expoaun Assessment Information.
Section 284.113(d)(4) of the proposed
rule would have required owners and
operators wishing to delay closure to
submit the human exposure  assessment
required under RCRA section 3019fa)
with the request to delay closure. This
section further would have required that
if the Regional Administrator
determined that the unit posed a
substantial risk to human health, then
the unit would not be eligible to delay
closure.
  One commenter recommended that
the Regional Administrator determine
that continued use of the unit to receive
only nonhazardous waste would not
pose a substantial risk to human health.
Another commenter argued  that the
requirement was stated in excessively.
vague language and provided no
opportunity for administrative appeal
Finally, a third commenter stated that
section 3019 information must be
submitted only upon submission of a
final part B permit application, and that
resubmission of the data should not be a
condition of delaying closure.
  The Agency has considered the
commenters' recommendations and
agrees that resubmission of the human
exposure assessment information
required under RCRA section 3019(a) (40
CFR 270.100)} may not always be
necessary to demonstrate that a unit can
operate in a manner protective of human
health and the environment The
purpose of the information gathered
under the authority of RCRA section
3019 is to assist in the evaluation that a
unit delaying closure can continue to
operate in a manner protective of human
health •"** the environment. Therefore.
the Agency is modifying the final rule to
clarify that the information will only be
required to be updated "as necessary
and appropriate" to account for the
receipt of non-hazardous wastes
following final receipt of hazardous
wastes. The Agency la also  <™*i
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           Federal Register / VoL 54. No. 155 / Monday. August 14, 1986 / Rules and Regulations     33387
"meaningful** and timely. Tbe Agency .
believes that it is practical to anticipate
many of the actions that may be  .1 -
necessary to remediate releases to
ground water. Hie measures outlined in
the contingent corrective measures plan
will often be the same types of measures
required under the full corrective action
plan. Among the measures discussed by
the Agency in the preamble to the
proposed rule that might be included in
the plan were extrapolation of future
contaminant movement, a discussion of
the likely contaminants of concern, and
a description of measures that can be
installed quickly to address releases of
different types of constituents or
releases at variable rates, and plumes of
different size and depth. In many cases
these actions will constitute interim
measures, such as alternate water
supplies, stabilization and repair of side
walls, dikes, and liners, or reduction of
head. Such interim measures would
prevent and contain releases and
complement any longer-term corrective
measures that may be required
following a detailed evaluation. The
plan should also describe in detail the
range of corrective measures that might
be used, including the equipment and
physical components required.
  Finally, the owner or operator must
address whether continued receipt of
wastes would impede the progress of
corrective action and establish criteria
or milestones to ensure that substantial
progress in remediating the release is
achieved. As discussed further in
section rv.B3.cJ of today's preamble,
the owner or operator of a non-
retrofitted surface impoundment mast
cease the receipt of waste upon
detection of release unless he has an
approved)
t corrective
measures plan which demonstrates that
continued waste receipt will not imped*
the progress of the required corrective
measures.
  b. Alternatives. Today's final nil*
                                              •era ton,
                                              jtionto
  (I)j4/te/natrrv l—Oemo
Hazardous Wastes (§ 264
proposal offered owners
as a primary alternative
remove all hazardous lie
sludges from the surface ..  oundment
prior to receipt of non-hazardous waste.
This option appears hi today's final rule
as Section 284.113(e)(2). This section
disnusmi comments received on this
option, as well as the applicability of the
mixture rule to impoundments removing
hazardous wastes.
  (a) Liquid and t/udge removal. Under
the first alternative, proposed as
§ 264.113(e)(2}(i). the Agency proposed
that an owner or operator of a surface
impoundment remove all hazardous
liquids and hazardous sludges, to the
extent practicable without damaging the
Uner. from the impoundment prior to the
receipt of non-hazardous waste.1 In the
preamble, the Agency noted that for
nnUned units (I*, units with natural
clay liners), the  hazardous wastes must
be removed down to the underlying and
adjacent soil. In addition, the proposal
specified that, m the event of a release
to ground water, the facility would have
to comply with the corrective action
requirements of proposed f 2M.113(e)(5)
and discussed In section IV 3Ac below.
  The Agency also proposed that
owners or operators choosing this
alternative remove hazardous wastes
(liquid and sludges) no later than 90
days after die final receipt of hazardous
waste. Tbe proposal allowed the
Regional Administrator to approve a
request for a longer period of time based
on need (e.g, due to adverse weather
conditions or specific operating
practices), and on a demonstration that
an extension would not pose a threat to
human health and the i
impoundments that do not meet Uner
and ]eachate collection system •

liquids and stodges to the octant
practicable as • precondition of
delaying closure to receive1 un-
hazardous wastes. As part of tba
fhwj****"*1"*" required in the request •
to delay closure, an owner or operator
must include a plan for complying with
this waste removal requirement Two
alternatives originally proposed have  -
not been finalized. The following section
summarizes the comments received on
the alternatives and describes the
Agency's final position.
 deadline and criteria for requesting an
 extension to me 90-day deadline in tbe
 proposal were consistent wtth me
 current provisions in 1 2M.ltt(a) for
 removing aD p*****"1^1* wastes at
 closure and for
 to that deadline.
                                       sting an extension
                                                       '
lined units. Removal need only be  •' '
completed to the day. This darifieatior
does not affect the amount of materials
that may be required to be removed
from the unit at the time of final closure.
No other comments were received and
the provision is finalized as proposed.
  (b) Relationship to the mixture rule. In
the preamble to the proposed rule,  the
Agency discussed the applicability of
the "mixture rule" in the context of
owners or operators who treat wastes in
a series of surface impoundments. In
that discussion, the Agency stated that
in most cases, the mixture rule would
not apply because mixing of hazardous
sludge with non-hazardous influent
would be unlikely. Therefore, a non-
retrofitted surface impoundment
delaying dosure under the proposed rule
could discharge into a non-retrofitted
downstream surface impoundment.
because the discharged wastes would
not be considered *"»»«•«<««« The
Agency received several comments on
this interpretation of the "mixture rule."
(53 FR 20750) While several commenters
supported the Agency's interpretation,
other commenters argued that this
position is inconsistent with previous
Agency interpretations. Tbe commenters
who disagreed stated that when a non-
hazardous waste and a tisted hazardous
waste are co-mingled and co-managed
                      The Agency received one comment on
                    this proposed alternative requesting
                    clarification of whether natural day-
                    lined units should remove die day liners
                    along wtth die stodge. The requirement
                    to remove stodge from unlined units
                    "down to die underlying and adjacent
                    soirexdndestheUoerinnaturaQy-clay
                     •quintal to •pprapriu* M pnnct
 in tbe same unit under any
 circumstances, tbe entire mixture is
 considered a listed hazardous waste
 and must be managed appropriately.
   Tbe Agency maintains that dw
 discussion of the mixture rule contained
 in tbe preamble to the proposal is
 consistent with previous Agency
 actions. Tbe Agency has consistently
 interpreted tbe mixture rule not to apply
 where a non-Hated waste is discharged
 to a unit (La. surface impoundment)
 even if that liquid generates a hazardous
 sludge, unless the sludge is in some way
 -mixed" wtth the liquid («*. scoured as
 a result of operations in the unit). If the
 Agency did not Interpret the mixture
 rule in this manner, there would be no
 point in carefully limiting listings to
 testate stodges bat exclude
 westewaters. Tbe alternate mixture rule
 interpretation suggested by several
 commenters would make the
 wastewater hazardous as soon as the
 hated sludge ww generated.
   H»A believes tot the opportunity for
 rnixtagofharardousstadgesand
 hazardous nquids from impoundments
 where unhazardous liquid* and sludges
 have been removed to die extent
 practicable as required by
 If 284J13(eK2J and 255.H3W12) will be
 manual. Opportunities for mixing will
 be further diminished as additional nou

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33388     Federal Register / VoL 54, No, 155 / Monday. August 14. 19W / Rules and Regulations
hazardous sludge is generated. Were
uy mixing to occur, it would be
confined to the liquid/sludge interface. -
Levels of hazardous constituents
escaping from the hazardous sludge to
the non-hazardous liquid an not likely
to pose an appreciable risk to human
health and the environment Should the
impoundment be subsequently dredged
so that scouring or other physical mixing
occurs, the mixture rule would come into
effect (This rationale is discussed
further in 46 FR 56582, November 17.
1981).
  Once all hazardous liquids and
hazardous sludges have been removed
to the extent practicable, free liquids
from such impoundments may be
discharged to non-MTR units because
the liquids would not be considered to
be hazardous wastes. Additionally, as
discussed earlier, to remain in
compliance with section 30050). non-
retrofitted impoundments wishing to
delay closure may not receive a non-
hazardous waste that generates a
hazardous waste or sludge.
  (2) Alternative 2—Flushing Hazardous
Wastes. The proposal offered owners or
operators the second option of flushing
or displacing liquid hazardous wastes
and removing hazardous sludges. For
reasons discussed below, the Agency is
not finalizing this alternative.
  The proposed "flushing" alternative
(proposed i 2M.113(e)(2)(ii)) would have
allowed an owner or operator to delay
closure of a surface impoundment
subject to § 264.1l3(e) if he removed the
hazardous sludges and also removed the
liquid hazardous waste and suspended
solids by flunking the unit with non-
hazardous influent until 95 percent of
the hazardous liquid had been removed.
In addition, the owner or operator would
have been required to demonstrate that
the remaining liquid waste •*"*
suspended solids did not exhibit a
characteristic of hazardous wastes as
denned in subpart C of part 261. Testing
for listed hazardous constituents.
however, was not required. The Agency
intended this alternative to apply
primarily to owners or operators of
biological treatment i*"p"«n« option to
delay closure is warranted for any  .
      irfnuMtt that retains up to 5
percent liquid hazardous waste. For die
reasons ftiminnd above and in section
IV.AJ of this preamble, die Agency has
decided to delete this option from the
final rule. The Agency points out
however, that owners and operators
who remove all liquids under
Alternative 1 may use flushing as a
removal method. The owner or operator
would have to demonstrate the complete
removal of hazardous liquids. Tracer
studies as described in the proposed
Alternative 2 (53 FR 20750). or modeling
studies may be used.
  (3) Alternative 3—Leaving Hazardous
Wastes In floes. The third alternative
proposed in 1264.113(e)(3) would have
allowed owners or operators of
impoundments who intend to leave
hazardous wastes hi place at closure to
delay closure under limited
          «-^f  This Option *\tt has UOt
                                     been finalized in today's rule. Because
                                     hazardous wastes would not have been
                                     removed prior to the receipt of non-
                                     hazardpus wastes, the Agency proposed
                                     more stringent requirements for these
                                     impoundments than for impoundments
                                     at which hazardous wastes would have
                                     been removed. This alternative would
                                     have been available only to those units
                                     that had not detected a release at or
                                     prior to the final receipt of hazardous
                                     wastes. In addition, if a release had
                                     been detected after the final receipt of
                                     hazardous wastes, the owner or
                                     operator would have been required to
                                     initiate closure of the disposal
                                     impoundment in accordance with the
                                     approved closure plan no later than 30
                                     days after the detection of the release
                                     and implement the corrective measures
                                     specified in the contingent corrective
                                     measures plan no later than one year
                                     after the release had been detected.
                                        One commenter recommended that
                                     impoundments which have not removed
                                     hazardous wastes (impoundments using
                                     proposed Alternative 3} not be allowed
                                     to delay closure. This commenter felt
                                     that these impoundments are more likely
                                     to leak and would pose an excessive
                                     threat to human health *"d the
                                     environment As discussed in section
                                     IV A.1 above, the Agency is not
                                               th<« alternative. Upon
reconsideration, the Agency has
determined Out surface impoundments
from which hazardous wastes are not
removed present a greater threat of
release of hazardous constituents.
Therefore, these impoundments cannot
remain open to receive non-hazardous
waste and achieve the Agency's dual
goals of release prevention and
protection of human health and the
environment The Agency believes that
only the closure of these surface
impoundments will provide adequate
protection.
  c. Corrective Action Requirements
(SS 284.1 J3(e) (4) and (5)). Under the
proposed rule, units that delayed closure
would remain subject to all applicable
part 264 corrective action requirements.
In addition, surface impoundments not
meeting the liner and leachate collection
system requirements would be subject
to more stringent requirements in the
event of a release. The following section
           the comments received and
 the Agency's final position on the
 proposed trigger for corrective action,
 reliance on ground-water monitoring
 data to detect releases, and additional
 corrective action requirements
 applicable to surface impoundments not
 meeting liner and leachate collection
 system requirements.

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             Federal Register / VoL 54. No. 155 / Monday. August 14. 1969 / Rules and Regulations     83389
    (1) Corrective Action Trigger
  (§§ 264.ll3(e)(4)). The Agency proposed
  in §S 284.113(e)(S). (6). (7). ud (8) that
  surface impoundments not meeting liner
  and leachate collection system
  requirements implement corrective
  measures (and close, if wastes have
  been left in place) if contamination is
  detected. Detection occurs when there is
  contamination that is statistically
  greater than (or less than in the case of
  pH) background levels for detection
  monitoring parameters or hazardous
  constituents specified in the permit or is
  in excess of the GWPS. if one has been
  established, at the point of compliance.
  (For more information on the Agency's
  final Ground-Water Monitoring
  Statistical Rule, see October 11.1988,53
  FR 39720.)
   A number of commenters disagreed
  with these requirements and argued that
  facilities should be allowed to establish
  a GWPS before corrective measures are
  required to be implemented. These
  commenters contended that the
  proposed trigger for corrective action
  (and closure for impoundments that
  have left waste in place) would be too
  sensitive and that temporary
  fluctuations in the levels of hazardous
  constituents would trigger unnecessary
  corrective action (or closure).  One
  commenter requested clarification of the
  manner in which a background level
  would be established.
   After consideration of the
  commenters' recommendations, the
  Agency has decided to retain  the
  corrective action trigger as originally
  proposed. (Because the Agency is not
  finalizing proposed Alternative 3, the
  corrective action trigger no longer acts
  as a closure trigger for surface
-impoundments that have not removed
  hazardous wastes as a condition of
  delaying closure.) However, because the.
  corrective action requirements have
  been modified somewhat (see section
 IV.B.2.CJ), these requirements have
 been renumbered and promulgated in
  S 284.113(e)(4).
   The Agency believes that the trigger
 for corrective action  is • necessary
 element of today's regulations. The
 delayed closure regulations will allow
 non-retrofitted surface impoundments to
 remain open after November 8.1988 (a* .
 well as those surface impoundments
 which become subject to section
 3005(j)(l) after the date of enactment of
 HSWA due to the promulgation of
 additional listings or characteristics for
 the identification of hazardous waste
 under section 3001), and the
 requirements must therefore provide
 sufficient continued protection of health
  «id the environment The Agency has  .
provided for this protection through
strict eligibility and operating criteria.
and more stringent corrective measures
provisions, including requirements for.
the submission of a contingent
corrective measures plan and
implementation of corrective action if a
release over background levels is
detected at units without a GWPS.
  The Agency does not believe that
allowing units without a GWPS to
obtain one before requiring corrective
action will provide adequate protection
since a delay in remediation of a release
that might occur if corrective measures
were not implemented until after a
GWPS was obtained could pose an
additional threat Modeling data
comparing the relative performance of
clay liners and synthetic liners
satisfying the liner and leachate
collection system requirements suggest
that a non-retrofitted surface
impoundment may have releases that
are faster and larger than from a surface
impoundment meeting the liner and
leachate collection system requirements.
Therefore, it is critical that releases from
units not meeting liner and leachate
collection system requirements be
addressed as quickly as possible. The
requirements for a contingent corrective
measures plan combined with the more
sensitive trigger will ensure prompt
release containment and remediation.
  It should be noted, however, that an
owner or operator who has filed a Part B
permit application may request a GWPS
at any time before or after corrective
measures have been initiated. A facility
may request and obtain a GWPS in
advance of a release during the permit
approval process, or at the time that the
release is detected. The Regional
Administrator, in 1264 Jl(b). has the
authority to include in the facility permit
a combination of subpart F monitoring
and response programs in order to
protect human health and the
environment This provision gives the
Regional Administrator the discretion to
sat a GWPS before a release has
occurred. The GWPS can be established
at background or iimrfmimi contaminant
levels, or at alternate concentration
Units on a case-by-case basis. Alternate
concentration limits set at acceptable
health exposure levels using Agency
vanes should not be difficult to
establish prior to a release being
detected.
  If no GWPS has been established, the
Agency will continue to require that
initial corrective measures be
implemented in accordance with the ..
contingent corrective measures plan
after a release over background levels is
detected. Background levels are to be
  determined as described in If 28447
  and 26541. The Agency recognizes that
  in some circumstances a release over
  background levels may not require
  extensive corrective measures. If a
—CWPS is established in accordance with
  the procedures in § 264.94 during or after
  interim measures have been
  implemented, an owner or operator will
  be allowed to demonstrate that no
  further corrective action measures are
  necessary. Finally, it is noted that these
  requirements are anticipated to be
  consistent with forthcoming changes to
  40 CFR subpart F. The delayed closure
  provisions may be amended at a later
  date to account for these new subpart F
  provisions.
    (2) Other Media. The proposed rule
  required that EPA base the initial
  determination of whether expedited
  corrective action is required at surface
  impoundments subject to the
  requirements of i 264,113(e) on ground-
  water monitoring data. The unit
  however, would remain subject to all
  corrective action requirements for all
  media. The Agency requested comments
  on this approach and whether other
  options may  be appropriate.
    One commenter agreed with the
  proposal and noted that it is consistent
  with the Agency's approach to all
  regulated land disposal units.
  Furthermore, the use of ground-water
  monitoring date should be adequate to
  detect most releases to other media.
  Another commenter, however, asserted
  that reliance on ground-water
  monitoring alone is inadequate because
  results may be affected by poorly placed
  wells and local hydrologic conditions
  that control plume migration. This
  commenter also felt that contamination
  to media other than ground water may
  not be expeditiously detected.
    The Agency continues to believe that
  ground-water monitoring is an adequate
  tool for determining whether the
  accelerated corrective action
  requirements of today's rule are
  necessary for releases to ground water.
  The provision of 1264.113(e)(5) and (6)
  has been finalized as proposed. Ground-
  water monitoring has been traditionally
  end successfully used to monitor
  contaminant detection and plume
  migration. Forthcoming corrective action
  regulations will address releases to all
  other media. The provisions in today's
  rule supplement f«t«n»^g md any future
  regulation addressing corrective action
  requirements for all media.
    (3) Additional Corrective Meatunt
  Requirement*. The Agency's proposal
  included additional corrective measures
  requirements that would apply to
  surface igt|pffun<^Tt*^its not meeting liner

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33390     Federal Register / VoL 54, No. 155  / Monday. August 14. 1968 / Rule* and Regulations
and leachate collection system
requirement SIM! winch have removed
(or will femove) hazardous waste fat
order to delay closure. The proposed
requirements differed, depending on
whether a release had been detected
before or after the final receipt of
hazardous wastes. Under the proposal.
units found to be i**t""g at or prior to
the final receipt of hazardous wastes
would be required to cease the receipt of
all wastes until corrective measures
have been implemented (§ 2M413fa)(5)
and (8)). Units found to be leaking after
the final receipt of hazardous waste
could continue to receive non-hazardous
waste only if corrective measures were
implemented within one year of the
detection of a release, and if continued
receipt of the non-hazardous waste
would not pose a threat to human health
or the environment (J 284.113(e](7)). The
Agency requested comments on whether
the requirements should differ
depending on the timing of the release,
and on the one-year deadline for
implementing the corrective measures.
  Some  argued that the Agency
provided no justification for imposing
stricter requirements on owners or
operators who detected a-release at or
prior to the final receipt of hazardous
waste. Others contended .that ceasing
receipt of waste until collective
measures are implemented would be
unduly disruptive to facility operations.  -
Nearly all comments on tins issue
action requirements apply m cases of
releases detected before and after the
final receipt of hazardous waste. Two
commenters recommended that all
surface <««]wmm31Sfe)(5)
allows the owner or operator to   •
continue to receive wastes after
detection of e release, regardless of  •
when the release is detected, only in
those cases where a contingent
corrective measures pkuxfor full
corrective action plan) has been
approved. In addition to a description of
the corrective measures to be
implemented. If receipt of wastes is to
continue, the plan most fully account for
the impact of receipt of non-hazardoue
wastes on corrective measures by
demonstrating that continued receipt of
wastes will not adversely affect the
implementation of corrective measures
and the achievement of substantial
progress In achieving the facility's
GWPS. The Agency believes that these
effects must be considered before
receipt of non-hazardous wastes is
allowed. Once EPA has approved the
contingent corrective measures plan that
demonstrates that continued receipt of
non-hazardous waste will not  adversely
affect the progress of the corrective
action, receipt of non-hazardous wastes
may resume.
  As stated in the preamble to the
proposed rule, the Agency continues to
believe that temporarily ceasing receipt
of wastes until corrective measures have
been implemented should not  be overly
disruptive to facility owners or
operators. Many units will have already
triggered compliance monitoring and/or
be engaged in corrective action under
Subpart F. Therefore, in those cases
when waste receipt must be halted.
than should  not be an extensive delay
in implementing corrective action and
allowing the unit to resume receipt of
wastes. The Agency also anticipates
that >""^ these unite have detected
releases, they will receive priority, in
obtaining approval for corrective action
plans.
  The Agency is finalizing the one-year
deadline for implementing corrective
measures under 12M.113(e}(4) «•
proposed. The Agency believes one year
from the time of release detection or
plan approval whichever is htter. is

a^m^M^twae) aanjsBjaasMll^Baa aVsa *4isU4*eiaiaWv! fat fttfeae
preamble to the proposed rale (59 PR
20752). the Agency intend* that actual

be implemented within one year. The
actions reouired to be accomplished
within this one year will be negotiated
daring the corrective measures approval
process. In addition, the Regions
                                      Administrator has the option to require
                                      implementation of corrective measures
                                      earlier than one year after a release is
                                      detected if necessary for the protection
                                      of human health and the environment
                                      Established procedures for adjusting
                                      such permit schedules of compliance   •
                                      will be available. Therefore, specific
                                      authority to allow the Regional
                                      Administrator to grant extension* is
                                      unnecessary and could lead to
                                      unacceptable delays in closing a unit
                                      should the owner or operator fail to take
timely action to initiate the
implementation of remedial action.
  d. Evaluating tin Progress of
Corrective Action (§§ 264.113(e) (S). IS)..
and (7)). The proposed rule required
owners or operators to demonstrate
"substantial progress" in implementing
corrective action and achieving the
facilities' CWPS or background level if
the facility has not yet established a
GVYPS. If the Regional Administrator
determined that an owner or operator
had failed to make substantial progress
in implementing the required corrective
measures, the owner or operator would
be required to initiate closure of the
leaking unit (S 264.113(e)(10}). The
proposed rule did not define
"substantial progress" because the
Agency believed that the  determination
should be made on a case-by-case basis.
In the preamble to the proposal.
however, the Agency did  provide
examples of situations that illustrated a
failure to make substantial progress.
Examples included failure to comply
with the requirements of section (e)(5)
for implementing corrective measures
within one year or subsequent failure to
comply with significant deadlines in the
approved corrective measures plan.
schedule of compliance, the permit, or
other enforcement orders establishing
timeframes for achieving the facility's
GWPS. The Agency also specified that
semi-annual corrective action progress
reports required under 8 2M.113(e)(9)
would be considered In making the
determination, but that compliance with
only these procedural or reporting
requirements would not alone constitute '
substantial pi ogress.
  The proposed rule also established an
accelerated set of procedures for
initiating closure under } 2M.113(e)(ll).
The procedures included notification of
the owner or operator, public notice of
the decision, and a 20-day comment
period. These proposed procedures did
not allow administrative appeals of final
decisions regarding closure.
  Several commenters expressed
concept that the term "substantial
progress" was too vague and subjective.
One commenter felt that hearings should
be allowed to determine whether
substantial progress has- been made.
Another commenter recommended thai
the Agency allow administrative
appeals of decisions to require closure.
  The Agency has considered the
commenters* recommendations, but
continues to believe that a specific
definition of "substantial progress" is
. both unnecessary and undesirable.
 Establishing a rigid standard of
 substantial progress would prevent a
 Regional Administrator from -

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            Federal Register / VoL 54. No. 155 / Mon^iy. August 14. 1989 / Rules and Regulations     83391
 considering site-specific factors in the
 determination of whether progress hi
 corrective action is being made. Because
 corrective action measures are tailored
 to specific sites, this lack of flexibility
 could result in a standard that in some
 cases is inadequately protective of
 human health and the environment and
 in other cases is unnecessarily
 burdensome to owners and operators.
 The Agency believes that its description
 of actions considered to constitute
 substantial progress provides adequate
 guidance to both owners and operators
 and Regional Administrators. EPA notes
 that while commenters were
 dissatisfied that a definition of
 substantial progress was not included in
 the rule, they did not suggest alternative
 definitions. Therefore, the Agency is
 finalizing the rule as proposed (with the
 reporting requirement and substantial
 progress requirement renumbered as
 § 264.113(e) (5) and (6)) .
  Finally, the Agency has retained the
 expedited procedural requirements in
 §5 264.113(e)(ll) and28S.113(e)(ll) for
 determining whether substantial
 progress has been achieved
 (renumbered as S§ 264.113(e)(7) and
 265.113(e)(7) for the final rule). The
 Agency continues to believe that these
 procedures afford owners and operators
 adequate protection of any due process
 rights and that hearing and
 administrative appeals are neither
 appropriate nor required. The objective
 of the procedures is to reduce delays in
 initiating closure, while still providing
 owners and operators and the public
 with notice and comment opportunities.
 As discussed elsewhere in today's
 preamble, the requirement to implement
 effective corrective measures in the
 event a release is detected is an
 essential component of the controls
 imposed on surface impoundments not
 meeting the liner and leachate collection
 system requirements. EPA believes that
 the harm potentially caused to human
health and the environment by
impoundments unable to promptly
remediate releases outweighs any
 potential burdens imposed on owners
and operators. Furthermore, it must be
remembered that owners and operators
are not authorized generally under this
rule to delay closure: rather the
authorization to delay closure is an
exception to the general Subpart G
requirements and is expressly
conditioned upon meeting the
substantial progress demonstration
when and if applicable. Although this
provision is itself self-implementing and
need not be accompanied by further
notice and comment opportunities, the
Agency has afforded such an
opportunity through die procedures in
SS 264.113(e)(7) and 265.113(e)(7). The
further delay that might result from a
hearing provision or administrative
appeals cannot be justified in light of the
importance of timely response actions. __
Nor would such additional procedures
be likely to present any information for
decisionmaking that could not be
provided by notice and the opportunity
to provide written comment
  In addition, with respect to permitted'
faculties, receipt of approval for this
action and establishment of specific
milestones defining "substantial
progress" are determined through a
permit issuance or modification process.
This administrative process includes all
procedural protections necessary to
meet statutory and Constitutional
requirements. Thus, a conditional
authorization to delay closure as a
permit provision and the automatic
expiration for failure to comply with the
permit requirement to make substantial
progress in remediating releases will
have already been subject to notice and
opportunities for comment and
administrative appeals. Accordingly,
further process is unnecessary.
  To provide analogous procedural
protections for facilities which may still
be in interim status at the time of the
Regional Administrator's determination,
parallel procedures appear in
§ 265.113(e)(7). As with permitted
faculties, the conditional authorization
to delay closure is also accompanied by
an opportunity for notice and comment
This occurs through the procedures for
closure plan approval or modification in
1265.112(d). Accordingly, further
procedures such as hearings and ~
administrative appeals are not
necessary and have not been added to
the final rule.
  3. Notification of Closure
(§204.112(d)(2)). The proposed rule
    nded 12M.112(d)(2) to specify that
for units delaying closure, the "expected
data of closure- is no later than 30 days
after the final receipt of non-hazardous
wastes. No comments were received on
this proposed change, and therefore the
final rule is promulgated as proposed.
  C. Part 270 Permit Modification
Xfgiunmentg (§270.42). The proposed
rule designated the request to modify
the permit to delay closure to receive
non-hazardous wastes after the final
receipt of hazardous waste as a Class 2
modification, in accordance with the
recently finalized rule establishing three
classes of permit modifications •
(September 28,1988.53 PR 37012).   -
  Two commenters recommended that'
permit modifications to delay closure be
considered Class 3 modifications rather'
than Class 2 modifications. One
commenter felt that the time allowed for
submitting the request to modify the
permit under § 264.113(d), or for
submitting^ part B or revised part B
application under 1285.113(d). is
unrealistically short considering the
amount of information to be included in
the requests. Another commenter
suggested that specific criteria be
identified as necessary to support a
Regional Administrator's denial of a
request to delay closure. Another
commenter recommended that time be
allowed for a facility to construct an
alternative waste management unit for
closure if the Regional Administrator
denies the request to delay closure.
Finally, one commenter suggested that
an owner or operator be allowed to
receive non-hazardous waste during the
time the permit modification is being
reviewed.
  The Agency has taken these
comments into consideration but has
decided to promulgate the final rule as
proposed. Class 2 modifications are
defined as modifications in the types
and quantities of waste managed under
the facility permit including
authorizations to treat or store new
wastes that do not require different unit
design or management practices (53 FR
37915). Delaying closure to receive  only
non-hazardous waste does not change
the basic purpose and use of the unit but
only alters the type of waste being
managed (wastes will continue to be
regulated under the subtitle C permitting
requirements). Furthermore,  the Class 2
modification allows the Agency to
require that the major permit
modification procedures be followed if
the proposed change raises significant
interest or concern (40 CFR 270.42(b)).
Therefore, the Agency believes that
classification of the permit modification
as Class 2 is adequate. It should be
noted that in those States which have
not adopted the new permit
modification classification rule, a permit
modification to delay closure will be
considered a major modification.
  The Agency also believes  that the
amount of time allowed in the proposed
rule  ({ 2M.U3(d)(3)) for submitting
permit modification information is
adequate. These timeframes are
consistent with the current timeframes
for submitting permitting and closure
plan information (40 CFR 270.42(b)). In
addition, moat changes that  must be
made to the permit or permit application
an not substantial and therefore should
not require additional time to complete.
  The Agency does not believe that
specific criteria need to be established
to support the Regional Administrator's

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 33392     Federal Register / VoL 54  No. 155 / Monday. August 14. 19» / Rotes end Regulation*
 decision to deny a request to delay
 damn. Therefore, no changes to the
 final rule have bean HH»A»- AS discussed
 in .Motion IVJLZxl of today's preamble.
 the requirement to close In accordance
 with an approved closure plan is subject
 to judicial review. Additionally.
 facilities must submit an amended part
 B application or a request for a permit
 modification. Hie denial of either is
 subject to the administrative
 requirements provided for in 40 CFR
 Part 124. Finally, for interim  status
 facilities, the extension of the closure
 period is generally processed together
 with closure plan  approval. The closure
 plan approval process includes an
 opportunity for comment by the owner
 or operator (see 9 264.112(a)]. Such
 existing procedures provide  the owner
 or operator with ample opportunity to
 review the basis for the denial decision.
  Furthermore, the Agency does not
 believe that additional time  should be
 allowed to construct alternative units to
 handle wastes if the request to delay
 closure is denied. [The delay of closure
 option is an exception to general closure
' requirements and extends closure
 timeframes only temporarily.) Owners
 and operators of facilities will have had
 adequate notice that their units will
 have to close, and therefore will have
 had time to plan alternatives in the
 event that the permit modification is
 denied.
  Finally, the Agency wishes to clarify
 that non-hazardous waste may be
 received during the time when a
 permitted facility's permit modification
 to delay closure is under review. As
 discussed in the preamble to the
 proposed rule, interim status units
 would be allowed to receive non-
 hazardoas waste  while the Agency
 reviewed the part B application (with
 certain exceptions for surface
 impoundments aa discussed in section
 IV AZc). Similarly, it was intended that
 permitted facilities that are  awaiting; th*
 Agency's decision on their permit
 modification to delay closure be •H«»i»ti
 to receive non-hazardous waste during
 this period of Agency review. In either
 case, faculties must continue to comply
 with all applicable subtitle C
 requirements to encore continued
 protection of *"""•« health  •**«* the
 environment

 D. Conforming Chongft
  The Agency proposed conforming
 changes to the interim status standards
 in part 285 that parallel the  technical
 requirements in part 264 for delaying
 closure to receive only non-hazardous
 waste. The interim status requirements
 are substantially the same as those for
 permitted units. These requirements
have been pn»u««l incorporating
nhannoa naralLJ Ifl thdSA fijlfllllfff
above for permitted units. This section
addresses only those comments or
regulatory changes unique to the part
285 requirements.
1. Conforming Changes to Part 285
Interim Status Requirements
  The sections below describe
comments received on the proposed
conforming changes to part 285 interim
status requirements, including eligibility
of interim status facilities to delay
dosure, ground-water monitoring and
corrective action implementation, and
eligibility to delay closure of units •
receiving interim status as a result of
new regulations.
  a. Eligibility. The proposed rule would
allow owners or operators of interim
status facilities to remain open to
receive nonhazardons waste if they
meet the requirements of 1285.113 (d)
and (e), if applicable, induding    '
submission of a part B application or a
revised part B application. Part B
applications are required because the
Agency does not believe that a facility
should be allowed to remain open to
receive non-hazardous waste while
remaining indefinitely in interim status.
Daring the period prior to receipt of the
permit the owner or operator mast
comply with applicable requirements in
i 265.113 (d) and (e). if applicable, and
continue to conduct operations in
accordance with all other applicable
pert 285 requirements. The Agency
believes that the criteria in 1265.113(4).
combined with the technical and any
other requirements of part 285 for
delaying dosure. an sufficient to
preclude any increased threat to human
health and the environment daring the
permit review period* If the permit is
denied, the pert 265 dosure
requirements become effective
immediately.
  One commenter requested
darification of whether interim status
surface impoundments that had chosen
to close (in lieu of obtaining a permit)
would be allowed to delay dosure. The
Agency would allow such units to delay
dosure if they meet the criteria of
 II 26S.113(dJ and 26S.113(e). if
applicable, induding submission of a
part B permit application. If the unit is in
the process of dosing, Agency approval
to delay dosun would depend on how
 far along the unit is in the closure
 process. Since many of the closure
 activities (e.g- the removal of waste) an
 compatible with the requirements for
 delaying closure, requests to delay
 closure could, in some cases be
 considered. If the surface
 has certified clean closure, and its
interim status is subsequently    .
terminated, it could receive non-
bazardods waste as a Subtitle O facility
following dosure and would not need to
avail itself of today's rule. However, if it
is to be dosed with hazardous waste in
place and the unit has already been
capped, the cap may only be disturbed
under the conditions specified in
9 9 264.117(0) and 285.117(c). This
provision requires that the Regional
Administrator find that the disturbance:
(1) Is necessary to the proposed use of
the property and will not increase the
potential hazard to human health or the
environment; or (2) is necessary to
reduce a threat to human health and the
environment
  b. Ground-Water Monitoring and
Corrective Action. The Agency
proposed that the corrective action
requirements in f 265.113(e) applicable
to non-retrofitted surface impoundments
be triggered  by a statistically significant
increase in hazardous constituents over
background  levels (or decrease in pH
levels) for interim status facilities that
have not yet established a GWPS. Units
not in compliance with tiner and
leachate collection system requirements
are subject to accelerated corrective
action requirements consistent with
1264*113(e)(6) requirements.
  Several commenters objected to the
provisions allowing interim status units
to delay closure. These commenters
argued that  interim status ground-water
monitoring requirements do not
suffidently protect human health and
the environment because they do not
accurately detect hazardous waste
releases. These commenters also argued
 that corrective action provisions for
interim status facilities under delayed
 dosure are inadequately protective of
 human health and the environment
 because there is no regulatory authority
 to trigger corrective  action.
  The Agency believes that the
 requirements of 1265.113 (d) and  (e) in
 combination with the other applicable
 part 285 requirements an adequately
 protective. These provisions require that
 units in interim status must apply for a
 permit as a condition of delaying
 dosure. and that upon permit issuance
 these units  wfll be subject to the stricter
 part 264 requirements for ground-water
 monitoring. Additionally, owners or
 operators of surface impoundments that
  do not meet MTR liner and leachate
 collection system requirements who
  wish to delay dosure must comply with
  corrective action requirements specified
  in 126U13(e) even in the absence of a
  RCRA13008(h) order. Further.
  contingent  corrective measures plans

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           Federal Register / Vol. 54. No. 155 /  Monday. August 14. 1989 / Rules and Regulations     33393
can be incorporated into subsequent
section 3008(h) orders if necessary.
  c. Applicability to New Interim Status
Units. The Agency proposed that the  .
option to delay closure be made
available to owners or operators of units
that receive interim status as a result of
new regulations. The Agency indicated
in the preamble to the proposed rule that
proposed deadlines for submitting
revised part B applications would be
adequate because these owners or
operators would be given sufficient
notice that they will become subject to
Subtitle C requirements.
  One commenter recommended that
the delay of closure option be available
to owners or operators of units that have
become classified as hazardous waste
management units as a result of
regulatory interpretation by the EPA. As
discussed above, this is allowed if the
unit meets the requirements of 5 265.113
(d) and (e). The rule has therefore been
finalized  as proposed.

V. State Authorization

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 RCRA
sections 3008, 7003. and 3013, although
authorized States have primary
enforcement responsibility.
  Prior to HSWA. 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 facilities in a State
where the State was authorized to
permit. When new,  more stringent
Federal requirements were promulgated
or enacted,  the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
  In contrast, under section 3008(g) of
RCRA, 42 U.S.C. 692B(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 carry out those requirements
and prohibitions in authorized States.
including the issuance of permits, until
the State  is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements and prohibitions apply in
authorized States in the interim.
B. Effect of Rule on State Authorizations
  Today's rule promulgates'standards
that are not effective in authorized
States since the requirements are not
imposed pursuant to HSWA. Thus, the
requirements will be applicable only in
those States that do not have interim or
final authorization. In authorized States,
the requirements will not be applicable
until the State revises its program to
adopt equivalent requirements under
State law.
  In general, 40 CFR 271.21 (e) (2)
requires States that have final
authorization to modify their programs
to reflect Federal program changes and
to subsequently submit the
modifications to EPA for approval. It
should be noted, however, that
authorized States are only required to
modify their programs when EPA
promulgates Federal standards that are
more stringent or broader in scope than
the existing Federal standards. Section
3009 of RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program, States are not required to
modify their programs (See 40 CFR
271.1(1)). The standards promulgated
today are less stringent than or reduce
the scope of the existing Federal
requirements. Therefore, authorized
States are not required to modify their
programs to adopt requirements
equivalent or substantially equivalent to
the provisions promulgated above. If the
State does modify its program. EPA
must approve the modification for the
State requirements to become subtitle C
RCRA requirements. States should
follow the deadlines of 40 CFR
271.21(e){2) if they desire to adopt this
less stringent requirement
VI. Executive Order 12291
  This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291. The regulatory amendments being
promulgated today are designed to
reduce the burden of the RCRA
regulations and are not likely to result in
a significant increase in costs. Thus, this
final rule is not a major rule; no
Regulatory Impact Analysis has been
prepared.
VIL Paperwork Reduction Act
  Under the Paperwork Reduction Act
of I960.44 U.S.C. 3501 et seq.. EPA must
estimate the paperwork burden created
by any information collection request
contained in the proposed or final rule.
  The information collection
requirements in this final rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and
have been assigned OMB control
Number 2050-0008. Reporting and
recordkeeping burden on the public for
this collection is estimated at 320 hours
for the 4 respondents, with an average
of 80 hours  per response. These burden
estimates include all aspects of the
collection effort and may include time
for reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, completing
and reviewing the collection of
information, etc.
  If you wish to submit comments
regarding any aspect  of this collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference ICR #0007),
contact Rick Westlund, Information
Policy Brunch, PM-223, U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC. 20460
(202-382-2745); and Marcus  Peacock,
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Washington DC. 20503.

VIII. Regulatory Flexibility Act

  Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 801 et seq.), Federal
agencies must, in developing
regulations, analyze their impact on
small entities (small businesses, small
government jurisdictions, and small
organizations). The amendments
promulgated today are more flexible
than the existing regulations and thus
result in no additional costs. The
viability of small entities, thereby,
should not  be adversely affected.
  Accordingly, I certify that this
regulation will not have a significant
impact on a substantial number of small
entities.
  Dated: August 2.1989.
William K. ReiUy,
Administrator.
  For the reasons set out in the
preamble, it is proposed that 40 CFR,
chapter I be amended as follows:

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

  1. The authority citation for part 264
continues to read as follows:
  Autboiity: 42 U.S.C. 6905. Oul2(u). C924. and
6SJ25.

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33394     Fadand Register / VoL 84. No. 155 / Monday. August 14. 1969 / Rules and Regulations
  2. In 1284.13 is amended by revising
paragraphs (a)(H (a)(3)(i). and (b)(D to
read as follows:
1264.13 Qt
WStl
       •lyste
  (a)(l) Before an owner or operator
treats, stores, or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 264.113(4).
he must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
•    •    •   •    *
  (3) The analysis must be repeated as
necessary to ensure that it is accurate
and up to date. At a minimum, the
analysts must be repeated:
  (i) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes, or non-hazardous
wastes if applicable under { 264.113(d),
has changed; and
*****

  (b) • • •
  (1) The parameters for which each
hazardous waste, or non-hazardous
waste if applicable under i 2S4.113(d).
will be analyzed and the rationale for
the selection of these parameters (i.e.,
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
*****
  3. In { 264.112, is  amended by revising
paragraph (d)(2) to  read as follows:

S 264.112  Closure plan; amendment of
plan.
*****
  (d) * * *
  (2} The date when he "expects to
begin closure" must be either.
  (i) No later than 30 days after the date
on which any hazardous waste
management unit receives the known
final volume of hazardous wastes, or if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
later than one year after the date on
which the unit received die meat recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
hazardous waste management unit or
facility has the capacity to receive
additional hazardous wastes  and he has
taken all steps to prevent threats to
human health and the environment.
including compliance with all applicable
permit requirements, the Regional
Administrator may approve an
extension to this one-year limit or
  (ii) For units meeting the requirements
of I284.113(d). no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume of non-
hazardous wastes. If the owner or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment including compliance with
all applicable permit requirements, the
Regional Administrator may approve an
extension to' this one-year limit
*****
  4. Section 264.113 is amended by
revising paragraphs (a) introductory
text (a)(l)(ii)(A), (b) introductory text
(b)(l)(ii)(A), and (c) and adding
paragraphs (d) and (e) to read as
follows:

1264.113  Closure; time aflowed for
closure.
  (a) Within 90 days after receiving die
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, the owner or operator must
treat remove from the unit or facility, or
dispose of on-site. all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator complies with all applicable
requirements for requesting a
modification to the permit •*»«i
demonstrates that
  (!)
  (ii)
                          i)(A) The hazardous waste
                       management unit or facility has the
                       capacity to receive additional hazardous
                       wastes, or has the capacity to receive
                       non-hazardous wastes if the owner or
                       operator complies with paragraphs (d)
                       and (e) of this section; and
                       •     •    •    *    *
                         (b) The owner or operator must
                       complete partial and final closure
                       activities in accordance with the
                       approved closure plan and within 180
                       days after receiving the final volume of
                       hazardous wastes, or the final volume of
                       non-hazardous wastes if the owner or
                       operator complies with all applicable
                       requirements in paragraphs (d) and (e)
                       of this section, at the hazardous waste
                       management unit or facility. The
                       Regional Administrator may approve an
                       extension to the closure period if the
owner or operator complies with all
applicable requirements for requesting a
modification to the permit and
demonstrates that
 . m • • *
' (ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity 'to receive
non-hazardous wastes if the owner or
operator complies with paragraphs (d)
and (e) of this section; and
•    *    *    *    *
  (c) The demonstrations referred to in
paragraphs (a)(l) and (b](l) of this
section must be made as follows:
  (1) The demonstrations in paragraph
(a)(l) of this section must be made at
least 30 days prior to the expiration of
the 90-day period in paragraph (a) of
this section; and
  (2) The demonstration in paragraph
(b)(l) of this  section must be made at
least 30 days prior to the expiration of
the 180-day period in paragraph (b) of
this section, unless the owner or
operator is otherwise subject to the
deadlines in  paragraph (d) of this
section.
  (d) The Regional Administrator may
allow an owner or operator to receive
only non-hazardous wastes in a landfill.
land treatment or surface impoundment
unit after the final receipt of hazardous
wastes at that unit if:
  (1) The owner or operator requests a
permit modification in compliance with
all applicable requirements in parts 270
and 124 of this title and in the permit
modification request demonstrates that:
  (i) The unit has the existing design
capacity as indicated on the part A
application to receive non-hazardous
wastes: and       '
  (ii) Then is a reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
wastes in the unit within one year after
the final receipt of hazardous wastes:
and
  (iii) The non-hazardous wastes will
not be incompatible with any remaining
wastes in the unit or with the facility
design and operating requirements of
the unit or faculty under this part; and
  (iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
  (v) The owner or operator is operating
and will continue to operate in
compliance with all applicable permit
requirements; and
  (2) The request to modify the permit
 includes an amended waste analysis
 plan, ground-water monitoring and
 response program, human exposure
 assessment  required under RCRA

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Federal Register  /  VoL  54, No. 155 / Monday, August 14. 1880 / Rules  and Regulations     33395
section 3019. and closure and post-
ctosnre plans, and updated cost
•stimates and demonstrations of
 •nantial assurance for closure and post-
 .losure care as necessary and
appropriate, to reflect any changes due
to die presence of hazardous
constituents in die non-hazardous
wastes, and changes in closure
activities, including die expected year of
closure if applicable under
§ 264J12(bj(7). as a result of die receipt
of non-hazardous wastes following die
final receipt of hazardous wastes: and
  (3) The request to modify die permit •
includes revisions, as necessary and
appropriate, to affected conditions of die
permit to account for die receipt of non-
hazardous wastes following receipt of
the final volume of hazardous wastes;
and
  (4) The request to modify die permit
and die demonstrations referred to in
paragraphs (d)(l) and (d)(2) of diis
section are submitted to die Regional
Administrator no later than 120 days
prior to die date on which die owner or
operator  of die facility receives die
known final volume of hazardous
wastes at die unit, or no later than 90
days after die effective date of diis rule
in the state in which die unit is located.
whichever is later.
  (e) In addition to me requirements hi
 ?ragraph (d) of this section, an owner
  operator of a hazardous waste
  jrface impoundment mat is not in
compliance widi die liner and leachate
collection system requirements hi 42
U.S.C. 3004(o)(l) and 3005(j)(l) or 42
U.S.C. 3004(0) (2) or (3) or 30050) (2). (3).
(4) or (13) must:
  (1) Submit widi me request to modify
the permit
  (i) A contingent corrective measures
plan, unless a corrective  action plan has
already been submitted under i 2644Kk
and
  (ii) A plan for removing hazardous
wastes in compliance widi paragraph
(e)(2) of diis section: and
  (2) Remove all hazardous wastes from
the unit by removing aD hazardous
liquids, and removing all hazardous
sludges to die extent practicable widtout
impairing die integrity of the hnerfs). if
any.  .   -
  (3) Removal of hiiardous wastes moat
be completed no later dian 90 days after -
the final receipt of hazardous wastes.
The Regional Administrator may
approve an extension to  diis deadline if
the owner or operator demonstrates diat
the removal of hazardous wastes will of
necessity, take longer man the allotted
oeriod to complete and diat an
  tension will not DOM a direst to
   nan baaldi and die environment
                             (4) If a release that to a statistically
                           significant increase (or decrease in the
                           case of pH) over background values for
                           detection monitoring parameters or
                           constituents specified m the permit or
                           that exceeds die-facility's ground-water
                           protection, standard at the point of  .
                           compliance, if applicable, is detected in
                           accordance with the requirements hi
                           subpart F of this part, the owner or
                           operator of the unit;
                             (i) Must implement corrective
                           measures in accordance  with the
                           approved contingent corrective
                           measures plan required by paragraph
                           (e)(l) of this section no later than one
                           year after detection of the release, or
                           approval of the contingent corrective
                           measures plan, whichever is later.
                             (II) May continue to receive wastes at
                           the unit following detection of the
                           release only if the approved corrective
                           measures plan includes a demonstration
                           that continued receipt of wastes wilt not
                           impede corrective action: and
                             (ifi) May be required by the Regional
                           Administrator to implement corrective
                           measures in less than one year or to
                           cease the receipt of wastes until
                           corrective measures have been
                           implemented if necessary to protect
                           human health *""* the environment.
                             (5) During the period of corrective
                           action, the owner or operator shall
                           provide semi-annual reports to the
                           Regional Administrator that describe
                           the progress of the corrective action
                           program, compile all ground-water
                           monitoring data, and evaluate the effect
                           of die continued receipt  of non-
                           hazardous wastes on die effectiveness
                           of die corrective action.
                             (d) The Regional Administrator may
                           require die owner or operator to
                           commence closure of die unit if die
                           owner or operator fails to implement
                           corrective action measures in
                           accordance with die approved
                           contingent corrective measures plan
                           widiin one year as required in
  one year i
  iphfe)(4)
                            paragraph (e)(4) of tius section, or fails
                            to make substantial progress hi
                                  atiHnfl corrective action and
                                     die facility's ground-water
                            prelection standard or background
                            levels if die facility has not yet
                            established a ground-water protection
                            standard.
                                 ff the owner or operator fails to •
ement
                                        rrective measures as
                                  this section and provide a detailed
                                  statement of reasons for this
                                  determination, and
                                    (ii) Provide the owner or operator and
                                  die public, through a newspaper notice,
                                  -fire opportunity to submit written
                                  comments on die decision no later than
                                  20 days after die date of die notice.
                                    (iii) If die Regional Administrator
                                  receives no written comments, die
                                  decision will become final five days
                                  after die dose of die comment period.
                                  The Regional Administrator will notify
                                  die owner or operator that die decision
                                  is final, and that a revised closure plan.
                                  if necessary, must be submitted widiin
                                  15 days of die final notice and that
                                  closure must begin in accordance with
                                  die deadlines in paragraphs (a) and (b)
                                  of this section.
                                    (iv) If die Regional Administrator
                                  receives written comments on the
                                  decision, he shall make a final decision
                                  widiin 30 days after me end of die
                                  comment period, and provide dw owner
                                  or operator in writing and die public
                                  through a newspaper notice, a detailed
                                  statement of reasons for die final
                                  decision. If the Regional Administrator
                                  determines tittt substantial progress has
                                  not been made, closure mast be initiated
                                  in accordance widi  die deadlines tat
                                  paragraphs (a) and (b) of diis section.
                                     (v) The final determinations made by
                                  die Regional Administrator under
                                  paragraphs (e)p) (ni) and (hr) of diis
                                  section are not subject to administrative
                                  appeal.
                                     4a- A parenmetical is added at die
                                  end of die last section in Subpart G of
                                  Part 264 to read as follows:
                                    (The information onBscUon nqutewnents ia
                                  Sabpart C era approved by the Office of
                            required in paragraph (e](4) of diis
                            section, or if die Regional Administrator
                            determines diat substantial progress has
                            not bean-made pursuant to paragraph
                            (e)(8) of this section he shall:
                              (i) Notify die owner or operator ia '  •
                            writing that tin owner or operator must
                            begin closure in accordance wim the  *
                            deadlines to paragraphs (a) and (b) of  •

                                                             ontrol
  ft. Section 264.142 is amended by
revising paragraphs UM3) and (a)(4) to
read as follows:
                                            Coat
                      for closure.
12*4.142
  (a) •  * •
  (3) The closure cost estimate may not
incorporate any salvage value diat may
be realized widi die sale of hazardous
wastes, or non-hazardous wastes if
applicable under 1264.113(d). facility
structures or equipment land, or odier
assets associated widi the facility at dw
time of partial or final closure.
  (4) The owner or operator may not
incorporate e zero cost for hazardous
wastes, or non-hazardous wastes if
applicable under I 264-113(4), that might

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33396     Federal Register / VoL 54. No. 155 / Monday. August 14. 1989 / Ralea and Regulations
PART MS—INTERIM STATUS
STANDARDS FOR OWNERS AND  -
OPERATORS OP HAZARDOUS WASTE
TREATMENT. STORAGE, AND
DISPOSAL FACILITIES

  8. The authority citation for part 285
continues to read as follow*:
  Authority: 42 US.C 8805. W12(«), 0024.
0825. and 8935.
  7. Section 285.13 is amended  by
revising paragraphs (a)(l), (a)(3)(i), and
(b)(l) to read as follows:

S 288.13 General waste analysis.
  (a)(l) Before an owner or operator
treats, stores or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 285.113(d).
he must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
*    •     •     •    •
  (3) The analysis must be repeated as
necessary  to ensure that it is accurate
and up to date. At a minimum,  the
analysis must be repeated:
  (i) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes or non-hazardous
wastes, if applicable, under S285.113(d)
has changed: and
•    •     •     *    *

  (b)	
  (1) The parameters for which each
hazardous waste, or non-hazardous
waste if applicable under 8285.113(d),
will be analyzed and the rationale for
the selection of these parameters (i.e*
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
•    *    •    *    *          •
  8. Section 285.112 is amended by  -
revising paragraph (d)(2) to read as
follows:
§288.112 Closure pfcn;i
ntof
         hazardous waste management unit or
         facility has the capacity to receive
         additional hazardous wastes and he has
         taken, and will continue to take, all
         steps to-prevent threats to human health
         and the environment including
         compliance with all applicable interim ..
         status requirements, the Regional
         Administrator may approve an
         extension to this one-year limit; or
           (ii) For units meeting the requirements
         of S 265.113(d), no later than 30 days
         after the date on which the hazardous
         waste management unit receives the
         known final volume of non-hazardous
         wastes, or if there is a reasonable
         possibility that the hazardous waste
         management unit will receive additional
         non-hazardous wastes, no later than one
         year after the date on which the unit
         received the most recent volume of non-
         hazardous wastes. If the owner or
         operator can demonstrate to the
         Regional Administrator that the
         hazardous waste management unit has
         the capacity to receive additional non-
         hazardous wastes and he has taken, and
         will continue to take, all steps to prevent
         threats to human health and the
         environment including compliance with
         all applicable interim status
         requirements, the Regional
         Administrator may approve an
         extension to this one-year limit
         •     •     *    *    •

           9. Section 285.113 is amended by
         revising paragraphs (a) introductory
         text (a)fl)(ii)(A). (b) introductory text
         (b)(l)(ii)(A). and (c) and adding
         paragraphs (d) and (e) to read as
         follows:
  (d) '  *  •
  (2) The date when he "expects to
begin closure" must be either
  (i) Within 30 days after die date on
which any hazardous waste
management unit receives the known  • •
final volume of hazardous wastes or. if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
later than one year after the date on
which the unit received the most recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
 §288.113  Closure; time slowed for
 closure.
   (a) Within 90 days after receiving the
- final volume of hazardous wastes, or the
 final volume of non-hazardous wastes if
 the owner or operator complies with all
 applicable requirements in paragraphs
 (d) and (e) of this section, at a
 hazardous waste management unit or
 facility, or within 90 days after approval
 of the closure plan, whichever is later.
 the owner or operator mutt treat
 remove from the unit or facility, or
 dispose of on-site. all hazardous wastes
 in accordance with the approved closure
 plan. The Regional Administrator may
 approve a longer period if the owner or
 operator demonstrates that
    (I)"*
    (ii)(A) The hazardous waste  .  ..
 management unit or facility has the ..
 capacity to receive additional hazardous
 wastes, or has the capacity  to receive
 non-hazardous wastes if the facility
 owner or operator complies with . .
 paragraphs (d) and (e) of this section;
 and
 •   •*.••
   (b) The owner or operator must
 complete partial and final closure
 activities in accordance with the  •
 approved closure plan and within 180
 days after receiving the final volume of
 hazardous wastes, or the final volume of
 non-hazardous wastes if the owner or
 operator complies with all applicable
 requirements in paragraphs (d) and (e)
 of this section, at the hazardous waste
 management unit or facility, or 180 days
 after approval of the closure plan, if that
 is later. The Regional Administrator may
 approve an extension to the closure
 period if the owner or operator
 demonstrates that:
   W *
   (ii)(A) The hazardous waste
 management unit or facility has the
 capacity to receive additional hazardous
 wastes,  or has the capacity to receive
 non-hazardous wastes if the facility
 owner or operator complies with
 paragraphs (d) and (e) of this section;
 and
 «    *    «    *     •
   (c) The demonstrations referred to in
 paragraphs (a)(l) and (b)(l) of this
 section must be made as follows:
   (1) The demonstrations in paragraph
 (a)(l) of this section must be made at
 least 30 days prior to the expiration of
 the 90-day period in paragraph (a) of
  this section; and
   (2) The demonstration in paragraph
  (b)(l) of this section must be made at
  least 30 days prior to the expiration of
  the 180-day period in paragraph (b) of
  this section, unless the owner or
  operator is otherwise subject to the
  deadlines in paragraph (d) of this
  section.
   (d) The Regional Administrator may
  allow an owner or operator to receive
  non-hazardous wastes in a landfill, land
  treatment or surface impoundment unit
  after the final receipt of hazardous
  wastes at that unit if:
   (1) The owner or operator submits an
  amended part B application, or a part B
  application, if not previously required.
  and demonstrates that:
    (i) The unit has the existing design
  capacity as indicated on the part A
  application to receive non-hazardous
. wastes; and
    (ii) There i* • reasonable likelihood
  that the owner or operator or another
  person will receive non-hazardous
  wastes in the unit within one year after
  the final receipt of hazardous wastes:
 'and
    (Hi) The non-hazardous wastes will
  not be  incompatible with any remaining

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           Federal Register / Vol. 54. No. 155 / Monday, August 14. 1989  /  Rules and Regulations     33397
wastes in the unit or with the facility
design and operating requirements of
the unit or facility under this part; and
  (iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
  (v) The owner or operator is operating
and will continue to operate in
compliance with all applicable interim
status requirements; and
  (2) The part B application includes an
amended waste analysis plan, ground-
water monitoring and response program,
human exposure assessment required
under RCRA section 3019, and closure
and post-closure plans, and updated
cost  estimates and demonstrations of
financial assurance for closure and post-
closure care as necessary and
appropriate to reflect any changes due
to the presence of hazardous
constituents in the non-hazardous
wastes, and changes in closure
activities, including the expected year of
closure if applicable under
5 265.112(bj(7), as a result of the receipt
of non-hazardous wastes following the
final receipt of hazardous wastes; and
  (3) The part B application is amended,
as necessary and appropriate, to
account for the receipt of non-hazardous
wastes following receipt of the final
volume of hazardous wastes; and
  (4) The part B application and the
demonstrations referred to in
paragraphs (d)(l) and (d)(2) of this
section are submitted to the Regional
Administrator no later than 180 days
prior to the date on which the owner or
operator of the facility receives the
known final volume of hazardous
wastes, or no later than 90 days after the
effective date of this rule in the state in
which the unit is located, whichever is
later.
  (e) In addition to the requirements in
paragraph (d) of this section, an owner
or operator of a hazardous waste
surface impoundment that is not in
compliance with the liner and leachate
collection system requirements in 42
U.S.C. 3004(o)(l) and 3005()){1) or 42
U.S.C. 3004(o){2) or (3) or 3005(j) (2), (3),
(4) or (13) must:
  (1) Submit with the part B application:
  (i) A contingent corrective measures
plan; and
  (ii) A plan for removing hazardous
wastes in compliance with paragraph
(e)(2) of this section: and
  (2) Remove all hazardous wastes from
the unit by removing all hazardous
liquids and removing all hazardous
sludges to the extent practicable without
impairing the integrity of the linerfs), if
any.
  (3) Removal of hazardous wastes must
be completed no later than 90 days after
the final receipt of hazardous wastes.
The Regional Administrator may
approve an extension to this deadline if
the owner or operator demonstrates that
the removal of hazardous wastes will, of
necessity, take longer than the allotted  —
period to complete and that an
extension will not pose a threat to
human health and the environment.
'  (4) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
subpart F of this part, the owner or
operator of the unit:
  (i) Must implement corrective
measures in accordance with the
approved contingent  corrective
measures plan required by paragraph
(e)(l) of this section no later than one
year after detection of the release, or
approval of the contingent corrective
measures plan, whichever is later;
  (ii) May receive wastes at the unit
following detection of the release only if
the approved corrective measures plan
includes a demonstration that continued
receipt of wastes will not impede
corrective action; and
  (iii) May be required by the Regional
Administrator to implement corrective
measures in less than one year or to
cease receipt of wastes until corrective
measures have been  implemented if
necessary to protect human health and
the environment.
  (5) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of the continued receipt of non-
hazardous wastes on the effectiveness
of the corrective action.
  (6) The Regional Administrator may
require the owner or operator to
commence closure of the unit if the
owner or operator fails to implement
corrective action measures in
accordance with the approved
contingent corrective measures plan
within one year as required in
paragraph (e)(4) of this section, or fails
to make substantial progress in
implementing corrective action and
achieving the facility's background
 levels.
   (7) If the owner or operator fails to
 implement corrective measures as
 required in paragraph (e)(4) of this
 section, or if the Regional Administrator
 determines that substantial progress has
 not been made pursuant to paragraph
 (e)(6) of this section  he shall:
   (i) Notify the owner or operator in
 writing that the owner or operator must
 begin closure hi accordance with the
 deadline in paragraphs (a) and (b) of
 this section and provide a detailed
 statement of reasons for this
 determination, and
-  (ii) Provide the owner or operator and
 the public, through a newspaper notice,
 the opportunity to submit written
 comments on the decision no later than
 20 days after the date of the notice.
   (iii) If the Regional Administrator/
 receives no written comments, the
 decision will become final five days
 after the close of the comment period.
 The Regional Administrator will notify
 the owner or operator that the decision
 is final, and that a revised closure plan,
 if necessary, must be submitted within
 15 days of the final notice and that
 closure must begin in accordance with
 the deadlines in paragraphs (a) and (b)
 of this section.
   (iv) If the Regional Administrator
 receives written comments on the
 decision, he shall make a final decision
 within 30 days after the end of the
 comment period, and provide the owner
 or operator in writing and the public
 through a newspaper notice, a detailed
 statement of reasons for the final
 decision. If the Regional Administrator
 determines that substantial progress  has
 not been made, closure must be initiated
 in accordance with the deadlines in
 paragraphs (a) and (b) of this section.
   (v) The final determinations made  by
 the Regional Administrator under
 paragraphs (e)(7) (iii) and (iv) of this
 section are not subject to administrative
 appeal.
   9a. A parenthetical is added at the
 end of the last section in subpart G of
 Part 265 to read as follows:
   (The information collection requirements in
 Subpart C are approved by the Office of
 Management and Budget under control
 number 2050-0008)
   10. In {  265.142  is amended by revising
 paragraph (a)(3) and (a)(4) to read as
 follows:

 {265.142  Cost Mtlmat* lor closure.
   (a) • * *
   (3) The  closure  cost estimate may  not
 incorporate any salvage value that may
 be realized with the sale of hazardous
 wastes, or non-hazardous wastes if
 applicable under  § 265.113(d). facility
 structures or equipment, land, or other
 assets associated with the facility at the
 time of partial or  final closure.
   (4) The owner or operator may not
 incorporate a zero cost for hazardous
 wastes, or non-hazardous wastes if
 applicable under S 265.113(d), that might
 have economic value.

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33398     Federal Register / Vol 54. No.  155 / Monday. August 14. 1999 / Rules and Regulations
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM

  11. The authority citation for part 270
continues to read as follows:
  Authority: 42 U.S.C. 0905,0912.0824.0023.
0827.0038. and 0074.
  12. In 5 270.42. the list of permit
modifications in Appendix I is amended
by adding D.1.L to read as follows:

§27042  Permit modification at the
request of the permittee.
Appendix I to i 27O42—CtesaJfkatJon
       of Permit Modifications
o. •
i. •
I . ExtoMton of *w ekwura ptriod to •Dow
  • land*. Mfm Impoundment or lend
  li«rtn«ni unH to r»c«*x» nuttmuntout
       under 1 2*4.1 13 |d) and (•).
[FR Doc. 80-18498 Filed 8-11-68; 8:45 «m)
SUJNO COOt MW-40-M

-------
                            RCRA REVISION CHECKLIST 65

                                Mining Waste Exclusion I
                                  54 FR 36592-36642        ,
                                  September 1, 1989
                                (Non-HSWA Cluster VI)

This present checklist is titled "Mining Waste Exclusion I" Indicating that it is the first of two
amendments to this exclusion. The second amendment occurred at 55 FR 2322 on January 23,
1990 and is addressed  by Revision Checklist 71 - Mining Waste Exclusion II.  This latter checklist
will be made available through SPA 9.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
                      PART 261 - IDENTIFICATION AND LISTING OF
                                 HAZARDOUS WASTES
                                SUBPART A - GENERAL
add exception for
mixture of a
261.4(b)(7) waste and
a solid waste
exhibiting a Subpart C
characteristic unless
resultant mixture
meets certain charac-
teristic conditions;
mixture is hazardous
relative to the EP
toxlcitv characteristic
add "of this part" after
"Subpart D"; add
language excepting
mixtures of hazardous
waste and solid waste
excluded under
261.4(b)(7) and the
mixture no longer
exhibits hazardous
characteristics for
which the hazardous
waste was listed in
Subpart D
define beneficiatlon;
replace the last three
words of the para-
graph, "does not
include", with
"includes only"
261.3(a)(2)(l)
261.3(a)(2)fiin
261.4(b)(7)












                            September 1, 1989 - Page 1 of 2

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                    RCRA REVISION CHECKLIST 65:  Mining Waste
                                  Exclusion I (cont'd)
FEDERAL REQUIREMENT
solid wastes, from
ore and mineral
processing, that are re-
tained within exclusion
solid wastes from ore
and mineral process-
ing that are condi-
tionally retained within
the exclusion
FEDERAL RCRA CITATION
2B1.4
-------
 54 FR 36592-36642



Revision Checklist 65

-------
Friday
September 1, 1989
Part III


Environmental

Protection Agency

40 CFR Part 261
Mining Waste Exclusion; Rnal Rule

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 36592     Federal Register / Vol  54, No. 160 / Friday, September 1, 1989 / Rules and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY
                                    t
 40 CFR Part 261

 [SWH-FRL-362S-*; EPA/OSW-FR-M-017]

 RIN2050AC41

 Mining Waste Exclusion

 AGENCY: Environmental Protection
 Agency.
 ACTION; Final rule.	

 SUMMARY: Section 300l(b)(3)(A)(ii) of
 the Resource Conservation and
 Recovery Act (RCRA) excludes "solid
 waste from the extraction, beneficiation.
 and processing of ores and minerals"
 from regulation as hazardous waste
 under subtitle C of RCRA, pending
 completion of certain studies by EPA. In
 1980, EPA interpreted this exclusion (on
 a temporary basis) to encompass "solid
 waste from the exploration, mining,
 milling, smelting, and refining of ores
 and minerals" (45 FR 76619, November
 19.1980).
  Today's final rule responds to a
 federal Appeals Court directive to
 narrow this exclusion as it applies to
 mineral processing wastes. EPA
 published a proposed rule articulating
 the criteria by which mineral processing
 wastes would be evaluated for
 continued exclusion on October 20* 1988
 (53 FR 41288) and a revised proposal on
 April 17.1989 (54 FR 15318). In today's
 final rule. EPA provide* final criteria
 that have been modified in response  to
 public comment and finalizes the BeviO
 status of nine mineral processing waste
 streams that were proposed far either
 retention within or removal from the
 exclusion in the April notice. In
 addition, the Agency has modified the
 list of mineral processing wastes
 proposed for conditional retention in
 April based upon the revised criteria
 and information submitted In public
 comment. Ail other mineral processing
 wastes that have not been listed for
 conditional retention will be
 permanently removed from the Bevill
 exclusion as of the effective date of this
 rule.
  The Agency will apply the criteria
 described in this rule to the
 conditionally retained wastes and on
 that basis propose either to remove
 them from or retain them in the Bevill
exclusion by September 15.1989. Final
Agency action on the scope of the Bevill
exclusion for mineral processing wastes
will occur by January 15,1990.
 DATES: Effective Date: March 1,1990.
  Not later than November 30,1969. all
persons who generate, transport, treat,
store, or dispose of wastes removed
from temporary exclusion by thi* rule
and which are characteristically
hazardous under 40 CFR part 201.
subpart C, will be required to notify
either EPA or an authorized State of
these activities pursuant to section 3010
of RCRA.
  See sections VI and Vn of the
preamble below for additional dates and
details.
POM FURTHER INFORMATION CONTACT:
RCRA/Superfund Hotline at (800) 424-
9346 or (202) 382-3000 or for technical
information contact Dan Derides. US.
Environmental Protection Agency. 401M
Street. SW., Washington. DC 20460,
(202)382-3608.
SUPPLEMENTARY INFORMATION:
Table of Content*
L Introduction
  A. History
  B. Overview of Today's Rule
  C Future Activities
0. Analysis of and Response to Public
    Comments on the 10/20/88 and 4/17/gS
    Proposed Rules
  A. EPA's General Approach
  I. EPA's Response to Statutory aad Judicial
    Directives
  2, Status of Furore Waste Stream*
  3. Retroactive Application of Subtitle C
    Requirements
  4. Scope of Today's Rule
  B. The Low Hazard Criterion
  I. Appropriateness of Establishing a
    Hazard Criterion
  2. Overall Approach
  XpHTest
  4» Ignitability and Reactivity Tests
  5. Mobility and Toxidty Test
  ft. Constituents for Testing
  7. Addmoaal Standards
  & Application of Tests
  ft Types of Information
  C. The High Volume Criterion
  1. General Comments
  2. Separate Volume Criteria for Liquid aad
    Non-Liquid Waste Streams
  3. Degree of Aggregation of Waste Slnans
  4. Alternative Components/Application of
    the High Volume Criterion
  8. Type of Waste* Used as the Baeieoi
    Comparison
  a. Actual Threshold Value
  7. Application of the Cut-off Value, to
    Waste Streams
  D. The Definition of Mineral Processing
  1. Excluded Bevill Wastes Must be Solid
    Wastes as Defined by EPA
  2. Excluded Solid Wastes Must be>
    Uniquely Associated with Mineral
    Industry Operations
  3. frrclmtod Solid Wastes Must Originate
    from Mineral Processing Operations a*
    Defined by Five Specific Criteria
  4. Residuals from Treatment of Excluded
    Mineral Processing Waste* are Eligible
    for Exclusion Provided that they Meet
    the High Volume and Low Haznd
    Criteria
  5. The Processing Definition Could be
   Narrowed by Adding a Co-Location
   Requirement
  E. Related RCRA Issue*
  1. Applicability of the Mixture Rule
 '2. Applicability of the Derived-Front Rule
  3. Effect* of the Land Disposal Restrictions
  4. RCRA Section 3004(x)
  F. Administrative Issues
  1. Subtitle C end Wastes Withdrawn from
   the Bevill Exdusion
  2. Opportunities for Public Comment
  X Executive Order 12291 Analysis
  4. Regulatory Flexibility Analysis
  G. Comments Addressing the Nine Wastes
   for which Final Bevill Status is
   Established by Today's Rule
  1. Slag from Primary Copper Processing
  2. Slag from Primary Lead Processing
  X Red and Brown Muds from Primary
   Bauxite Processing
  4. Phoiphogypsum from Phosphoric Add
   Production
  X Slag from Elemental Phosphorus
   Production
  B. Furnace Scrubber Slowdown from
   Elemental Phosphorus Production
  7. Add Plant and Scrubber Slowdown from
   Primary Copper Processing
  8. Add Plant Slowdown from Primary Lead
   Processing
  9. Air Pollution Control Scrubber
   Slowdown from Primary Tin Processing
ID. Final Criteria for Defining BeviU Mineral
   Processing Wastes
  A. Definition of Mineral Processing Waste*
  & The High Volume Criterion
  C The Low Hazard Criterion
  1. The Toxidty and Mobility Test
  2. The pH Test
IV. Final Bevill Status of Selected Mineral
   PrecmiiM WsUtQa)
V. Schedule for Final Resolution of Bevill
   Status for All Remaining Candidate
   Bevill Mineral Processing Wastes
VL Regulatory Implementation and Effective
   Date* of the Final Rule
  A. Section 3010 Notification
  B. Compliance Date*
  1. Interim Status in Unauthorized State*
  2. Interim Status in Authorized States
VIL Effect on State Authorizations
VOL Economic Impact Screening Analysis
   Pursuant to Executive Order 12291
  A. General Approach to Compliance Cost
   Estimation
  1. Processing Sector Identification
  2. Waste Characterization
  X Compliance Coat Estimation Methods
  BL Aggregate and Sector Compliance Cost*
  G» Economic Impact*
  1. Impact* on  Commodity Sectors
  2. Effect* on Consumer Prices
  X Foreign Trade Impact*
DC. Regulatory Flexibility Analysis
  A. Definition of Affected Small Entities
  B. Approach aad Data Sources
  C Remits
List of Subjects  in 40 CFR Part 281

L Introduction

A History

  Section 3001(b)(3)(A)(U) of the
Resource Conservation and Recovery

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          Federal Register / VoL 54, No. 189 / Friday. September 1, 1989 /  Rules and Regulatioua     38S93
Act (RCRA) excludes "solid waste from
the extraction, benefidation and
processing of ores and minerals1' from
regulation as hazardous waste under
subtitle C of RCRA. pending completion
of certain studies by EPA. In 196% the  .
Agency interpreted this exclusion (on a
temporary basis) to encompass all
"solid waste from the exploration.
mining, milling, smelting, and refining of
ores and minerals" (45 FR 76619,
November 19, 1980). In July, 1988. a
federal Court of Appeals
(Environmental Defense Fund v. EPA.
852 F.2d 1316 (D.C Or. 1988). cert
denied. 109 S. Ct 1120 (1989) ("EDF IT]]
found that this exclusion is based upon
the "special waste" concept first
proposed by EPA in 1978 (43 FR 58946)
and that
  Congress intended the term "processing" in
the Bevill Amendment to include only those
wastes from processing ores or minerals that
meet the "special waste" concept, that Is
"high volume, low hazard" wastes. 852 FJZd
at 1328-2&
  In compliance with this Court
decision, on October 20, 1988 EPA
published a proposal to further define
the scope of section 3001(b)(3)(A)(ii) of
RCRA. (See 53 FR 41288) In the October
20. 1988 proposal EPA presented a
criterion for defining mineral processing
wastes and a two-part criterion for
identifying which mineral processing
wastes are high volume; however, the
Agency proposed to defer judgment on
the hazard posed by high volume
mineral processing wastes until
preparation of a required Report to
Congress. The Agency also applied the
processing and volume criteria to its
available data on mineral processing
wastes, and identified 15 wastes which
it believed met the criteria, and which
the Agency therefore proposed  to retain
within tiie exclusion and study for the
report to Congress!
1. Slag from primary coupei smelting
2. Process waatewatar from primary
  copper smelting/refining
3. Slowdown from add plants at
primary copper
& Slag from prunary lead smiting
6, Slowdown front add plen^t at

7. Process wastewater from primary zinc
  tt&0t
8. Red
  refining
4. Bleed electrolyte fr
v. raospnogypsti
production
10. Slag from ele
production
im irom pooapnonc moa
unMitfll BhiMnhorua

 11. Iron blast furnace slag
 12. Air pollution control dust/sludge
   from iron blast furnaces
13. Waste adds from titanium dioxide
  production
14. Air pollution control dust from Kme
  kilns
15. Slag from roasting/leachmg-af     /
 • chromite ore
  Based on comments received on the
October 20.1988 NPRM and further
analysis, EPA dedded that significant
changes in the proposal were necessary
before a final rule establishing the
boundaries of the Bevill exclusion for
mineral processing wastes could be
promulgated. Accordingly, on April 17,
1989, the Agency published a revised
proposed role that contained a modified
high volume criterion, clarifications to
the definition of mineral processing, and
for the first time, an explidt low hazard
criterion. As stated in the April notice,
EPA believes that such a criterion is
required in order to identify those
mineral processing wastes that are
clearly not low hazard and. therefore,
not "special wastes" even if they are
high volume.
  In the April NPRM. the Agency also
proposed to remove from the Bevill
exclusion all but 39 mineral processing
wastes, many of which were
"nominated" in public comment on the
October NPRM. Of these 39, six wastes
were believed at that time to satisfy aQ
of the "special waste" criteria described
in the proposal:
1. Slag from primary copper smelting
2. Slag from primary lead smelting
3. Red and brown muds from bauxite
  refining
4. Phosphogypsum from phosphoric add
  production
5. Slag from elemental phosphorus
  production
6. Furnace scrubber blowdown from
  elemental phosphorus production
  The other 33 wastes were proposed to
be conditionally retained within the
exdusion. because they are mineral
processing wastes that the Agency
believed satisfied the volume criterion
articulated in the proposal but for which
the Agency did not have adequate data
to evaluate compliance with the •
proposal's new hazard criterion. Thus.
 the following 33 wastes were fudged,
based in many cases upon information
 submitted to public comment to have
generation rates that might exceed
 504)00 metric tons per year per facility.
 and therefore, be potentially eligible for
 continued exdnslon tinder Bevilc
 1. Barren filtrate from primary beryOinm
   processing
 2. Raffinate from primary beryBium
   processing
 3. Bertrandite thickener sludge from
   primary beryllium processing
                                                    4. Process wastewater from primary
                                                      cerium processing               -•
                                                    5. Ammonium nitrate process solution
                                                     • from primary lanthanide processing
                                                    8. Roast/leach ore residue from primary
                                                      chrome ore processing
                                                    7. Gasifier ash from coal gasification
                                                    8. Cooling tower blowdown from coal
                                                      gasification
                                                    9. Process wastewater from coal
                                                      gasification
                                                    10. Bleed electrolyte from primary
                                                      copper refining
                                                    11. Process wastewater from primary
                                                      copper smelting/refining
                                                    12. Slag tailings from primary copper
                                                      smelting
                                                    13. Calcium sulfate wastewater
                                                      treatment plant sludge from primary
                                                      copper smelting/refining
                                                    14. Furnace off-gas solids from
                                                      elemental phosphorus production
                                                     IS. Process wastewater from elemental
                                                      phosphorus production
                                                     18. Fluorogypsum from hydrofluoric add
                                                      production
                                                     17. Ah* pollution control dust/sludge
                                                      from iron blast furnaces
                                                     18. Iron blast furnace *l"g
                                                     19. Process wastewater from primary
                                                      lead smelting/refining
                                                     20. Ah* pollution control scrubber
                                                      wastewater from light weight
                                                       aggregate production
                                                     21. Wastewater treatment sludge/solid
                                                       from light weight aggregate production
                                                     22. Process wastewater from primary
                                                       magnesium processing by the
                                                       anhydrous process
                                                     23. Process wastewater from primary
                                                       selenium processing
                                                     24. Process wastewater from phosphoric
                                                       add production
                                                     25. Wastes from trona ore processing
                                                     2& Basic oxygen furnace slag from
          w»fc™
          wlproduc
                                                                        tion
27. t^»«* liquor from primary titanium
  processing
28. Sulfate processing waste adds from
  titanium dioxide production
29. Sulfate processing waste solids from
  titanium dioxide production
30. Chloride processing waste adds
  from titanium and titanium dioxide
  production
31. Chloride processing waste solids
  from titanium and titanium dioxide

32. Blowdown from add plants at
  primary line smelters
S3. Process wastewater from primary
                                                                             from mineral
                                                                              AD other waste st
                                                      piorsiilng were proposed to be
                                                      removed from the exclusion. Most of the
                                                      T*mm<«infl streams would be low      _
                                                      volume; three *>
-------
 36594     Federal Register / Vol. 54. No. 160 / Friday,  September 1, 1989 / Rules  and Regulations
 hazard: Acid plant/scrubber blowdown
 from the primary copper, lead, and tin '
 sector*.
   Finally, the April notice responded to
 a number of ancillary issues raised in
 public comment on the October 20,1988
 NPRM. The preamble to the notice
 presented a summary of these comments
 and preliminary Agency responses to
 the questions and issues raised therein.
 Responses to additional comments
 received on issues addressed in the
 April NPRM may be found in section D
 below or in the Supplemental Response
 to Comments, which may be found in
 the docket supporting today's rule.
  A complete chronology of the special
 wastes concept the Bevill Amendment,
 end EPA's activities to implement the
 Bevill Amendment is also presented in
 the "background" section of the
 preamble to the April NPRM [53 FR
 15318-22).

 B. Overview of Today's Rule

  Today's rule establishes the final
 criteria that will be used to define
 Bevill-excluded mineral processing
 wastes. This final rule completes the
 first stage of rulemaking regarding the
 Bevill status of mineral processing
 wastes. In evaluating the components of
 this rule, the Agency has considered
 information presented in public
 comment on the October 1988 and April
 1989 proposals, and accordingly, has
 modified the criteria, where appropriate.
  These criteria consist of a revised and
 clarified definition of mineral
 processing, a modified volume criterion
 that consists of separate volume cut-offs
 for solid/sludge and liquid waste
 streams, and a refined low hazard
 criterion. Each will be discussed briefly
 in turn. More detailed descriptions an
 presented in section in of this preamble.
  The definition of mineral processing
has been modified so as to include
 fewer types of unit operations. In most
instances, operations that are no longer
 considered "processing" have been
redesignated "benefidation" operations.
The primary reason for making this
change is to achieve consistency with
previously articulated EPA definitions of
 "benefidation". Today's definition
provides resolution of potential conflicts
regarding the regulatory status of mining
wastes that have already been studied
and subjected to a Regulatory
Determination: the definitions provided
in the proposed rules might have
suggested another study and
determination for materials that have
already been addressed by the Agency.
EPA did not intend such a result and
believes that the definition of
"benefidation" in its 1985 Report to
Congress is the most consistent with the
standard use of the term.
  The high volume criterion has been
bifurcated in response to public
comment on the April notice. EPA has
determined empirically that amenability
to subtitle C management controls (the
basis for the high volume criterion)
varies markedly between liquid and
non-liquid waste streams. Examination
of data obtained from a recent EPA
nationwide census of subtitle C
treatment storage, disposal and
recycling facilities reveals that many
industrial facilities successfully manage
substantially more than 50,000 metric
tons per year of a single hazardous
wastewater stream. Non-liquid waste
streams, in contrast are managed in
quantities greater than 50,000 metric
tons per year in only a few instances.
Accordingly, the Agency has in today's
rule established final volumetric cut-offs
of 45.000 metric tons per year per facility
for non-liquid wastes and 1.000,000
metric tons per year per facility for
liquid wastes. The rationale for these
new values is presented in section m.
below.
  The low hazard criterion described in
the  April NPRM has been modified to
account for resolution of a number of
issues raised in public comment While
the  Agency has retained its basic
approach, it has modified the
application of the low hazard criterion
to specific waste streams in order to
account for additional waste constituent
data that have been submitted by
facility operators or collected from other
sources. The final low hazard criterion
is applied by evaluating the data
collected by EPA and analyzed using
Method 1312 (Synthetic Pradpitation
Leaching Procedure). If samples of a
waste stream from two or more faculties
fail the test then the waste is
withdrawn from the Bevill exclusion.
unless a preponderance of evidence
indicates that the test results are
anomalous. The conditions under which
EPA will assemble and consider this
evidence are discussed in section ni of
this preamble.
  As stated in both the October 1988
and April 1989  proposals, individual
waste streams must meet all Bevill
spedal mineral processing waste
criteria to be eligible for continued
regulatory exclusion and study in the
Report to Congress. In many cases.
individual mineral processing wastes
will not meet these criteria and hence.
will be permanently removed from the
Bevill exdusion as of the effective date
of this rule.
  In a limited number of cases. EPA
does not currently have sufficient
information to evaluate whether specific
waste streams conform to the low
hazard criterion. As discussed below.
the status of these materials will be
addressed in a subsequent rulemaking.
At/that time, the Agency will also
reevaluate whether these wastes
conform to the final volume criterion
using data collected during EPA's recent
National Survey of Solid Wastes from
Mineral Processing Facilities.

C. Future Activities

  This rule establishes the final criteria
that will be employed to make
individual Bevill mineral processing
waste exclusion decisions. Preliminary
decisions on the status of conditionally
excluded high volume wastes will be
articulated in a proposed rule to be
signed on or before September 15.1989.
These decisions will be based upon
information collected by or submitted to
the Agency during recent months.
  Final action on proposed wastes will
be taken by January 15.1990. At this
time, the final boundaries of the Mining
Waste Exdusion for mineral processing
wastes will be established
  All mineral processing wastes
retained within the final Bevill mineral
processing waste exdusion will be
subjected to detailed study by EPA. The
findings of these studies will be
contained in a Report to Congress  that
will be submitted by July 31.1990.
  Six months after submission of this
report, the Agency will publish a
Regulatory Determination stating that
the studied materials will either be
regulated under subtitle C of RCRA as
hazardous wastes, or that such
regulation is unwarranted

IL Analysis of and Response to Public
Comments on 10/20/88 and 4/17/88


A. EPA'» General Approach
1. EPA's Response to Statutory and
Judicial Directives

  In promulgating today's final rule.
EPA is responding to a Federal Court of
Appeals order to narrow the scope of
the Bevill exdusion for mineral
processing wastes to a group of "spedal
wastes," La* those mineral processing
wastes with the unique characteristics
of high volume and low hazard To carry
out mesa directives. EPA is today
finalising the criterion for defining
mineral processing wastes and the
criteria for determining whether these
wastes fall under the exdusion for
"special wastes." Furthermore. EPA is
today applying these criteria to many of
the mineral processing wastes and
therefore, is removing most of them from
the Bevill exdusion. Today's rule also

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           Federal Register / VoL 54. No. 169 / Friday. September a. 1989 / Rules and Regulations     38595
constitutes final Agency action    ,
•elect group of high volume mineral
processing wastes. The Bevill status of
additional high volume mineral
processing wastes (Le.. those that are
"conditionally" exempt) will be
proposed in September of this year.
Some of these conditionally exempt
wastes wiD remain within the exclusion
for the purposes of further study, others
will be removed because further
information shows that they do not meet
all of the "special wastes" criteria.
Under statutory directive, the final
regulatory determination for wastes that
remain temporarily excluded will be
made six months after completion of a
Report to Congress. This is  the same
basic approach EPA used in its October,
1988 (S3 FR 41288) and April. 1989 (54 FR
15316) proposals for narrowing the
scope of the Bevill exclusion.
  EPA received numerous comments
questioning the approach of the October
and April proposals in narrowing the
Bevill exclusion. Several commenters
continued to dispute the validity of
using the "special waste" concept in
interpreting the intent of the Bevill
Amendment In addition, some
commenters asserted that EPA had
proposed to interpret the Bevill
Amendment too narrowly, and that in
general terms wastes from the
extraction, benefidation, and processing
of ores and minerals should be excluded
from subtitle C regulation until
comprehensive studies of these wastes
can be completed. In contrast, some
other commenters stated that the
proposed interpretation of the Bevill
exclusion was too broad, and that the
exclusion should be limited to even
fewer "special wastes."
 ' EPA has carefully considered these
comments as they apply to the final rule.
The Agency maintains its position that
the special waste concept is central to
understanding Congressional intent
underlying the Bevill Amendment, end
that EPA must limit the scope of the
Bevill exclusion to favJndt only those
wastes that meet the "special waste"
criteria presented m the rule EPA
encountered no Mifnp*fl*ng arguments in
public comments on the two proposals
which would cause it to alter this
interpretation of the legislative history;
this history is described in detail in the
April NPRM.
   EPA's position on this matter is
supported and in fact mandated by the
1988 Federal Court of Appeals decision
that required a narrowing of the scope
of the Bevill exclusion for mineral
processing wastes. The Court
determined that the Bevill Amendment
was intended to apply only to mineral
processing wastes that meet the "special
waste" criteria, Le, high volume, low
hazard wastes. The Court ordered EPA
to propose and finalize regulations that  /
narrow the Bevill exclusion to
encompass only "special wastes;"
today's final rule is the latest in a
multistep process to meet the
requirements of the Court order.
  Despite commenter assertions to the
contrary, EPA is not required to
complete a comprehensive study of all
mineral processing waste streams prior
to articulating the specific wastes
remaining excluded under the Bevill
Amendment The Court of Appeals
ruling stipulates that the required study
(Report to Congress) is only applicable
to mineral processing wastes that fall
within the statutory exclusion; the study
is intended to result in a final regulatory
determination for those wastes (he*
whether any of the Bevill wastes should
be regulated under subtitle C).
  EPA notes that there is a lack of
detailed statutory, legislative,
regulatory, and judicial history and
guidance available to assist EPA in
defining, ten years after it was originally
proposed, the specific contours of the
"special waste" concept particularly as
it applies to mineral processing wastes.
EPA's 1978 proposal and the 1979 draft
background document do not attempt to
define the term "processing of ores and
minerals" nor attempt to quantify the
concepts of "high volume"  and "low
hazard." The legislative history of the
Bevill amendment in 1960 fails to give
content to these concepts as welL And
while the US.  Court of Appeals in EOF
IL declares that six hazardous smelter
wastes are not "special wastes," it
specifically leaves to EPA the
responsibility of defining which other
mineral processing wastes are special
wastes.
  As a result EPA has the discretion
and responsibility to develop  and apply
criteria that define the scope of the
Bevill exclusion within the broad limits
of this ten years of history. EPA today
 adopts die approach proposed in
 October and April that is. to quantify
 the terms "high volume" and "low
 hazard" and apply them to wastes from
 operations that meet a definition of
 "mineral processing" developed by EPA
 to reflect past regulatory history and
 EPA's professional judgment regarding
 the mineral processing industry.
   EPA believes that using specific
 quantitative criteria for the volume and
 hazard tests best allows EPA to fairly
 characterize which wastes from mineral
 processing should remain within the
 Bevill exclusion. EPA agrees  that it
 could have adopted a functional
approach to denning "special wastes"  ^
from mineral processing, or could have
set slightly different quantitative cutoffs
based on slightly different assumptions
regarding both the volume and hazard
issues. However, the volume and hazard
criteria adopted today are only used as
a preliminary screen to define which
wastes deserve closer study. And those
wastes which do not pass today's
criteria are not automatically subjected
to subtitle C regulation; they must also
exhibit one or more of the hazardous
characteristics adopted by EPA in 1980
after extensive consideration and public
participation.
   EPA does not believe that the specific
criteria chosen today are unreasonable.
particularly in light of the very limited
time given EPA to complete this final
rule. Indeed, as EPA shows below, slight
changes in the volume and hazard
criteria adopted today would not
appreciably affect the list of excluded
wastes. EPA believes that it has
resolved specific issues related to the
criteria in a reasonable manner
consistent with the general approach for
defining "special wastes" outlined
above.
2. Status of Future Waste Streams

   In both the October 20,1988 and April
17,1980 proposals, EPA stated that the *
current series of rulemakings would
conclude the Agency's  response to
statutory and judicial directives to
 define the scope of the Bevill exclusion
for mineral processing wastes. In other
 words, EPA proposed to make a one-
 time determination of Bevill status.
 Wastes not yet in existence and wastes
 not meeting the high volume/low hazard
 criteria during any of the past five years
 would therefore not be eligible for Bevill
 exclusion status in the future.
   Some commenters addressing this
 provision reiterated their disagreement
 with the one-time reinterpretation
 approach. They maintained that the
 Bevill Amendment does not place time
 limits on the exclusion of wastes, thus
 the one-time reinterpretation violates
 Congressional intent They also
 maintained that a one-time
 reinterpretation would decrease
 environmental protection in the long run
 by creating a disincentive for industry to
 employ new manufacturing or waste
 treatment operations that may unfairly
 fall under costly subtitle C regulation.
   Moreover, given the changing nature
  of the «»fa«fa»g industry, some
  commenters contended that EPA must
  consider that new processing waste
  streams will arise, and that lesser
  volume streams that vary in quantity
  may satisfy the criterion in the future.

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Federal Register / Vol. 54. No. 169  /  Friday, September 1. 1989  /  Rules and Regulations
Commenters pointed to roast leach acid
plant residue from primary copper
processing, oil shale and tar sand
processing wastes, and wastes from the
processing of nodules collected from the
ocean as examples of wastes that may
qualify for the Bevill exclusion in the
near future under the proposed criteria.
  These commenters also asserted that
EPA should study and issue regulatory
determinations for wastes that may
meet the special waste criteria in the
future. They also argued that it is more
appropriate to define the scope of the
Bevill exclusion for mineral processing
wastes directly using the criteria and
not create a list of wastes that EPA has
determined meet the criteria. Applying
the criteria to additional waste streams
in the future would allow for the effects
of changing market conditions and new
mineral processing technologies. Some
commenters thus recommended that
EPA amend the proposed rule to include
a provision whereby if a waste qualifies
as a high volume/low hazard waste in
the future, it would become subject to
the provisions of the Bevill Amendment
  The Agency has considered these
comments and decided to maintain its
proposed approach of a one-time
reinterpretation of the Bevill exclusion
for mineral processing wastes. As
discussed in  the April proposal  EPA
interprets the legislative history as
clearly establishing a temporary
exclusion through the Bevill Amendment
over a fixed time period. In fact the
statutory language includes explicit time
limits on the Bevill exclusion which
apply to the submission of the required
Report to Congress and subsequent
regulatory determination. Moreover, the
Court of Appeals decision stipulates an
updated timetable for completion of the
study and the final regulatory
determination.
  In today's final rule, wastes not
presently being generated or currently
meeting the high volume/low hazard
standard will not be considered for
special waste status in the future. Thus.
EPA is making a one-time
reinterpretation of the Bevill exclusion
for mineral processing wastes by
providing a specific list of such wastes
that tentatively fall under the "special
waste" criteria. EPA further maintains
that the one-time reinterpretation is not
contrary to the interests of industry or
the environment New wastes generated
hi the future  will be regulated under
either the subtitle C or subtitle D
regulatory programs, thus industry will
know in advance the regulatory
standards that will be applied to new
mineral processing wastes. EPA does
not believe that failure to apply the
                           Bevill Amendment to future waste
                           streams will discourage treatment of
                           these wastes; the application of Subtitle
                           C or D will in many cases, create
                           exactly the opposite incentive. Thus,
                           this position is consistent with recent
                           EPA policy initiatives that encourage the
                           development of process changes and
                           new waste treatment technologies that
                           minimize hazardous waste/treatment
                           residual generation.
                             Certain commenters took issue with
                           EPA's assertion that the Report to
                           Congress on Bevill wastes identified in
                           today's rule would be the last under
                           section 8002(p). They argued that EPA is
                           under a continuing statutory duty to
                           study and Report to Congress under
                           sections 8002(f) and 8002(p) of RCRA
                           regarding wastes from the extraction
                           and benefidation of ores and minerals
                           in sectors not discussed in detail in
                           EPA's 1985 report entitled "Wastes from
                           the Extraction and Benefidation of
                           Metallic Ores, Phosphate Rock,
                           Asbestos, Overburden from Uranium
                           Mining, and Oil Shale" (Dec. 31.1985).
                           These commenters dted pages from a
                           draft EPA report (which was never
                           completed or released to the public) on
                           wastes from certain mineral processing
                           operations. In that draft report the
                           commenters allege. EPA committed to
                           further study of wastes from the
                           extraction and benefidation of certain
                           nonmetallic ores and minerals.
                             EPA disagrees that it is necessary for
                           the Agency to commit to further studies
                           of extraction and benefidation wastes
                           under section 8002(p). EPA believes that
                           the 1985 Report and the subsequent
                           regulatory determination, discharged its
                           statutory duty with respect to all
                           extraction and benefidation wastes. As
                           explained hi the Executive Summary to
                           the 1985 Report the Report specifically
                           addressed "wastes from the extraction
                           and beneficiation of metallic  ores (with
                           special emphasis on copper, gold, iron.
                           lead, silver and zinc), uranium
                           overburden, and the nonmetals asbestos
                           and phosphate rock." Oil shale wastes
                           were also addressed in an Appendix.
                           EPA explained that it "selected these
                           mining industry segments because they
                           generate large quantities of wastes that
                            an potentially hazardous and because
                            the Agency is solely responsible for
                            regulating the waste from extraction and
                            beneficiation of these ores and
                            minerals." Report to Congress, page ES-
                            2. However, the Report is not limited
                            solely to wastes from these identified
                            sectors. Rather, the Report considers
                            waste generation, waste management
                            health and environmental risks, and
                            regulatory impacts on the entire nonfuel
                            mining and benefidation industry. Sea.
    Report pages ES-3, ES-I (overview
of the nonfuel mining industry), ES-10
(potential dangers posed by the nonfuel
mining industry), and ES-14 (potential
coots of regulating mining wastes as
hazardous).
  EPA's 1986 Regulatory Determination
also dearly states that it covers all
mineral extraction and benefidation
wastes. As EPA said at the time, "this
notice constitutes the Agency's
regulatory determination for the wastes
covered by the Report to Congress, i.e..
wastes from the extraction and
beneficiation of ores and minerals." 51
FR 24497 (July 3,1986). The Regulatory
Determination went on to explain that
by contrast Bevill mineral processing
wastes (based on EPA's 1985 proposal)
"were not studied in the mining waste
Report to Congress and therefore, are
not covered by this regulatory
determination." Ibid.
  EPA believes that the Report to
Congress and Regulatory Determination
make dear the Agency's intent that
wastes from the extraction and
benefidation of ores and minerals are  to
be regulated under subtitle D.  .
Accordingly, EPA has no present plans
to conduct any further studies under
8002(p) or make any further regulatory
determinations. EPA's draft Report to
Congress dted by the commenters was
an internal pre-dedsional document and
does not represent the final Agency
policy on this issue. (EPA also has no
plans to complete or submit that Report
in any form: its relevance was rendered
moot by the dedsion in EOF D.)
3. Retroactive Application of Subtitle C
Requirements
  In the April NPRM. EPA stated
explidtly that subtitle C regulation
arising from the withdrawal of Bevill
status from most mineral processing
wastes would not be Imposed
retroactively. That is. Subtitle C
requirements would apply only to newly
generated or actively managed mineral
processing wastes that are removed
from the Bevill exdusion and that
exhibit one or more characteristics of
hazardous waste, not to existing
accumulations of these materials unless
 they an actively managed after the
effective date of the rule or an subject
to regulation as waste mixtures, as
 discussed in further detail below. This is
 consistent with standard Agency policy
 regarding the imposition of new
 regulatory requirements.
   Commenters disagreed on the
 appropriateness of this approach. One
 commenter supported the approach.
 while another stated that the lack of
 regulation of previously disposed

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           Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Rules  and Regulations     3S597
mineral processing wastes would not be
protective of human health and the
environment Most comments on the
retroactivity provision, however.
centered around the definition of "active
management" Several commenters
requested clarification of this term.
  In keeping with the April proposed
rule, today's final rule does not impose
Subtitle C requirements (such as those
for closure and post-closure care) on
mineral processing wastes that were
disposed prior to the effective date of
today's rule, unless they are actively
managed after the effective date. This-
provision ensures that those mineral
processing wastes that were originally
excluded from subtitle C under the
Bevill exclusion, and are now
considered hazardous under the
reinterpretation of the Bevill exclusion,
are not subject to subtitle C
requirements if the wastes wen
disposed prior to the effective date of
the final rule. EPA is maintaining its
proposed approach largely because of
its long-standing policy of not regulating
wastes under RCRA that were disposed
prior to the effective date of a rule
governing those wastes. See, e.g., 45 FR
33066.
  For purposes of this rule, EPA views
active management as physically
disturbing the accumulated wastes
within or disposing additional non-BeviU
hazardous wastes into existing waste
management units after the effective
date of this rule. EPA does not intend to
bring  under subtitle C regulation
existing waste management units
containing wastes now identified as
non-Bevill to which only Bevill wastes
or other non-hazardous solid wastes an
subsequently added (Le., this practice
will not constitute active management of
the non-Bevill waste(s)). For example, a
waste management unit receiving • high
volume slag excluded from Subtitle C
regulation under today's role may
continue to receive additional slag (or
other non-hazardous or Bevill waste
stream) even if it has also received
(prior to the effective date of the rule)
hazardous waste now identified as non-
BevilL provided that no additional non-
BeviU wastes that .exhibit characteristics
of hazard or are listed as hazardous are
managed in these units. Continued  use
of an  existing unit after the effective
date of this rule for treatment, storage,
or disposal of additional quantities of a
newly listed or characteristic hazardous
waste will be considered active
management and will subject the entire
unit and its contents to Subtitle C
regulation.
 4. Scope of Today's Rule
   In the April notice, EPA stated clearly
 that its interpretations and definitions
, regarding the regulatory status 6T~
 mineral processing wastes under the
 Bevill Amendment applied only to the
 wastes addressed in this series of
 rulemakings (Le., mineral processing
 wastes).
  .Nonetheless, commenters contended
 that the Agency's position as articulated
 in the 4/17/89 NPRM with respect to the
 actual or potential status of coal
 combustion wastes was unclear. They
 stated that some of the interpretations
 and definitions proposed for mineral
 processing wastes would not be
 appropriate for application to coal
 combustion wastes (another Bevill
 special waste category), particularly the
 high volume and low hazard criteria
 presented in the April NPRM. and
 requested that EPA clarify its position
 on this issue.
   EPA emphasizes that the applicability
 of the definitions and criteria
 interpretations contained within this
 rulemaking, as presented below, is
 confined only to mineral processing
 wastes. The Agency believes that the
 special wastes concept remains a
 flexible one, and that the criteria for
 defining special wastes in the mineral
 processing industry may not be directly
 transferable to the other special waste
 categories, particularly coal combustion
 wastes. (EPA noted differences in its
 discussion of coal combustion waste
 volumes in the October. 1988 NPRM.)
 The Agency will consider this issue
 further in the context of its Regulatory
 Determination for coal combustion
 wastes.
 B. The Law Hazard Criterion
   As discussed in the preamble to the
 April 17.1969 NPRM. EPA has proposed
 a hazard criterion for use in determining
 the proper scope of the Bevill exclusion
 as it applies to mineral processing
 wastes. The purpose of the hazard
 criterion is to identify candidate Bevill
 mineral processing wastes that clearly
 do not present a low hazard to human
 health and/or the environment Any
 wastes failing such a criterion should be
 immediately removed from the Bevill
 exclusion: these wastes would then be
 evaluated (Just like any other solid
 waste) to determine whether they are
 hazardous—that is, whether they are
 listed or exhibit any of the hazardous
 waste characteristics.
    The proposed hazard criterion was
 based on two types of tests: (1) A pH
 test and (2) a mobility and toxidty test
 The pH test requires that a mineral
 processing waste have a pH between 1
 and 13.5 to be considered an exempt    —
. special waste, which represents a one
 order of magnitude increase of the pH
 levels used to identify corrosive
 hazardous wastes (Le., 2 and 12.5). The
 mobility and toxidty test requires that
 mineral processing waste constituents
 be extracted from the waste using a
 procedure (Method 1312—Synthetic
 Precipitation Leaching Procedure) that
 EPA believes is generally less
 aggressive in leaching out constituents
 from solid wastes than the  EP Toxicity
 Test (Method 1310). which  is used to
 determine whether non-Bevill solid
 wastes exhibit the toxidty
 characteristic. The waste extract is
 evaluated in the same manner and at the
 same regulatory levels as in the EP
 Toxidty test As EPA explained in the
 April NPRM. the low hazard criterion is
 solely a preliminary screening device to
 determine which mineral processing
 wastes are special wastes, and will not
 be used in determining which wastes
 will subsequently be regulated under
 Subtitle C, either as t result of today's
 rule or in the upcomuig regulatory
 determination.
    Comments on the low hazard criterion
 are organized hi this preamble into
 general comments on the
 appropriateness of the criterion,
 followed by general comments on the
 overall approach, and specific
 comments on potential components of
 the approach (Le., pH test ignitability
 and reactivity tests, mobility and
 toxidty test constituents for testing.
 additional standards, application of
 tests, and types of information).

 1. Appropriateness of Establishing a
 Hazard Criterion
    Many comments were received on
 whether EPA should indude a hazard
 criterion for identifying which wastes
 should not be subject to continued
 temporary exdusion from RCRA subtitle
 C requirements under the  Bevill
 Amendment
    a. Law Hazard Criterion it
 Appropriate. Several commenters
 •supported EPA's proposal to use a low
  hazard criterion. One commenter -
  maintained that a low hazard criterion
  is appropriate provided that the test
  used to evaluate whether the low hazard
  criterion is met is reasonable and
  appropriate for use with mineral
  processing wastes. Another commenter
  stated that Bevill exdusion status
  should be awarded only to those wastes
  that meet both the volume and hazard
  criteria, and yet another commenter
  stated that EPA should immediately
  remove from consideration those wastes

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 36598    Federal Register / Vol. 54, No. 169 / Friday. September 1.  1989 / Rules and Regulations
 that an dearly hazardous, without
 further study.
   Many commenters believed EPA's
 proposed low hazard criterion is
 objective, currently feasible, and
 essential to ensure that wastes that are
 not low hazard are appropriately
 regulated. Furthermore, one commenter
 maintained, the Agency's proposal is a
 positive step toward environmental
 protection: high volume wastes, because
 of their quantities, must be carefully
 evaluated for their potential risk to
 human health and the environment.
   b. Low Hazard Criterion is
 Inappropriate. Many commenters
 believed that the low hazard criterion
 should be abandoned because, they
 generally contended. EPA's proposal to
 use a pH teat and a mobility and toxicity
 test for mineral processing wastes
 directly contradicts Congressional intent
 and the decision in EDFI
 (En vironmental Defense Fund v. EPA,
 852 F.2d 1309 (B.C. Cir. 1983)). that
 hazard or hazard alone should not
 determine whether a waste falls within
 the scope of the Bevill Amendment
 These commenters generally believed
 that the hazard/toxicity issue is better
 addressed within the special studies, not
 as a screening procedure, and/or that
 Congress intended for some
 characteristic wastes to be exempted
 from subtitle C regulation. Basically.
 these commenters argued that failure to
 pass the low hazard test should not
 deny a waste access to the detailed and
 comprehensive study and balancing of •
 economic and environmental factors
 mandated by the Bevill Amendment.
   EPA has re-examined the special
 waste concept, the regulatory and
 legislative history, and the Court
 decision prompting this rulemaking. and
 concludes that the hazard criterion
 described hi the April NPRM. with some
 modifications, is appropriate for use in
 reinterpreting the scope of the Bevill
 Amendment The Agency recognizes
 that a full and detailed assessment of
 hazard can and will be appropriately
 considered hi a Report to Co
Nevertheless, a test designed to identify
any wastes that an dearly not low
hazard wastes is a necessary and
appropriate component of the criteria for
identifying mineral processing wastes
that should remain temporarily excluded
from Subtitle C regulation by the Bevill
Amendment The utilization of a
criterion to screen out wastes which are
not low hazard is clearly required by the
order of the Court of Appeals. See 852
F.2dl331.
  Some commenters supporting
abandonment or substantial revision of
the hazard criterion believed that EPA
lacks the necessary data for adopting a
low hazard criterion. EPA believes,
however, that sufficient data are
available to develop a workable and
appropriate low hazard criterion for
screening purposes and to apply that
criterion to some mineral processing
wastes. For wastes with insufficient
information, EPA currently is conducting
an extensive data-gathering effort The
new data will be applied to
conditionally retained Bevill wastes.
and their regulatory status will be
addressed in a proposed rule by
September 15,1089.

2. Overall Approach
  a. Low Hazard Rather than High
Hazard Wastes Should Be Identified.
Several commenters stated that EPA
should identify wastes that are clearly
low hazard and keep them within the
Bevill exclusion, rather thnn  identifying
wastes that are clearly not low hazard
and removing them from the  Bevill
exclusion.
  EPA disagrees with this approach
primarily because it would be
impractical given the time and other
constraints that the Agency faces in
promulgating this rule.  The special study
waste concept within the context of this
rulemaking necessitates identifying.
using a screening procedure, wastes that
are clearly not low hazard. To identify
wastes that are clearly low hazard
would involve the type of study of
damage case and other risk-related
information that is planned for the
Report to Congress, because before
concluding that specific wastes pose low
hazard, the Agency would require site-
specific data on physical and chemical
characteristics of the waste,  the waste
management practices employed, the
proximity of die facility and its waste
management units to sensitive
environments (e.g, wetlands.
endangered species habitat)  and
potential receptors, and other factors
that affect waste-related risk.
  b. Low Hazard Criterion Should Be
Adopted Based on a Multi-factor.
Qualitative, and/or Site-specific Test
Some commenters indicated that a less
quantitative approach for identifying
wastes to remove from the Bevill
exclusion should be utilized using an
analysis of present management
methods, environmental settings, and
available damage cases, as well as of
toxic and teachable constituents. For
example, some commenters
recommended that the Agency
specifically consider information
regarding past and current mineral
processing waste management practices,
which, the commenters stated, will
clearly show that the wastes pose
unacceptable risks to human health and
 the environment Other commenters
 stated that mineral processing facilities
 generally pose less risk (than other
 potentially hazardous wastes] because
 they'are sited in dry climates, far from
 ground water and drinking water, and in
 unpopulated areas.
   The Agency believes that a multi-
 factor, qualitative, and/or site-specific
 approach as suggested by these
 commenters is infeasible. Given the
 Agency's time constraints, the
 information described could not be
 systematically collected and considered
 to implement such a low hazard
 criterion uniformly for all of the various
 mineral commodity sectors and facilities
 addressed by this rule. Furthermore,
 development of such a criterion would
 be very subjective and difficult to apply
 consistently in such a short time frame.
 Rather, the scope of the Bevill exclusion
 will be defined using the hazard
 criterion (and die volume criterion) in
 lieu of obtaining site-specific data.
 Wastes that fail this screening test are
 clearly not low hazard and. therefore,
 will be subject to potential Subtitle C
. regulation. For wastes mmafainfl in the
' Bevill exclusion. EPA will collect and
 analyze various kinds of additional data
 (e.g., damage cases, site-specific
 environmental and waste management
 factors) for the Report to Congress. This
 additional analysis will involve
 consideration of the factors identified by
 commenters, and will ultimately support
 a regulatory determination for the
 mineral processing wastes temporarily
 excluded under the Bevill Amendment
, using the criteria established by today's
 final nil*,
   c. Specified Tests Generally Are
 Appropriate. Several commenters felt
 that EPA's proposal to use « synthetic
 precipitation leaching procedure for
 mobility testing is appropriate. One
 commenter maintained that any hazard
 test should be less stringent than the
 subtitle C characteristics tests and
 should demonstrate whether a waste
 poses a clear and unambiguous hazard
 to health or the environment This
 testing standard, the commenter further
 stated, is necessary because the hazard
 criterion will be used as a screening
            to determine which wastes
 warrant further study; wastes failing the
 low hazard criterion will be evaluated
 like any other solid waste to determine
 whether it should be subject to subtitle
 C regulation.
   d. Specified Teats Generally Are
 Inappropriate. Many commenters
 believed that the proposed hazard tests
 are inappropriate, generally
 recommending one of three alternatives:
 (1) EPA should not modify the current

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           Federal Register / Vol 54. No. 109 / Friday,  September 1,  1989 / Rules and Regulations     38599
 •'•HBrit, (2) EPA should modify the
 current standards, and (3) EPA should
 not use a leaching test to assess
 mobility.
  Many commentera arguing against
 modification of the standards stated that
 EPA's decision to modify the
 characteristics test is an extreme
 measure to ensure that no low hazard
 waste would be regulated under Subtitle
 C prior to detailed study, at the risk of
 allowing many high hazard wastes to
 escape such regulation altogether. One
 commenter argued that a less stringent
 measure of inherent toxicity should not
 be used when evaluating a high volume
 waste, because high volume  wastes
 have a greater potential to release
 significant quantities of hazardous
 materials. The result of the proposed
 hazard criterion, according to the
 commenter, would be stringent
 regulation of small quantities of waste
 while at the same time almost
 unregulated disposal of wastes that
 have caused documented environmental
 damage.
  Some commenters contended that the
 Agency should Implement less stringent
 modifications to the hazard tests. For
 example, one of these commenters
 stated thai the allowable constituent
 concentre .ions in the extract should be
 300 times tee primary drinking water
 standard, instead of 100 times the
 standard (as proposed). According to
 another commenter. the application of
 100 times the MCLs for all chemicals
 uniformly is of questionable validity.
 Others believed EPA should  use the EP
 Toxicity Test for screening, but increase
 the values for comparison by a factor of
 100 (le* 10.000 times the primary
 drinking water standard). These
ccmmenters noted that (1) the EP
Toxicity Test is well established and
widely used and considerable data
exists for mineral processing wastes and
(2) a relaxation of two orders of
magnitude of the comparison values la
similar to the proposed relaxation of the
pH standard, and has been adopted by
EPA's Land Disposal Restrictions
program for "California LW wastes.
  Some commentars argued against the
useof any type of leaching test because
of the apparent failure of ttus test to
consider either the actual waste
management practices being used or any
other site-specific factors. Another
commenter stated that because of the
shortcomings of leaching procedures, the
classification of wastes as hazardous or
non-hazardous should not be based
solely on an add extraction test
Another commenter contended that
Method 1312 yields extraction
information only, and that testing for the
mobility of a particular component can
only be done by site-specific evaluation.
One commenter argued further that the
Method 1312 test only assesses
mobilization of contaminants to ground
water under accidental conditions; no
other environmental media or exposure
route is measured. Consequently, the
commenter contended, the test does not
provide a complete measure of a waste's
potential hazard.
  EPA has considered these comments
and continues to believe that the low
hazard criterion as proposed (i.e., the
larger pH range and the more
appropriate leaching procedure) is both
necessary and appropriate for use as a
screening tool The Agency disagrees
that this approach will leave highly
hazardous wastes unregulated and free
to contaminate the environment; in fact
just the opposite will happen—that is,
wastes that fail the screening test will
no longer be retained within the Bevill
exclusion and will be evaluated like all
other solid wastes as to their potential
hazard. Wastes that pass the screening
criterion test and are retained within the
exclusion will be extensively studied,
and a regulatory determination will be
made as to their Subtitle C or D status
within two years. Using the same
toxicity factor as used in the EP Toxicity
Test (Le., 100 times the MCL) is
appropriate because the attenuation and
dilution expected for mineral processing
wastes after release into the
environment is expected to be similar to
wastes managed at other industrial
facilities; that is, the transport and fata
of the toxic constituents should not be
any different whether the waste is a
mineral processing waste or some other
type of solid waste. Moreover, although
the standards set by statute under the
land disposal restrictions program for
"California List" wastes are 10.000 times
MCLs, as the commenter noted. EPA has
already proposed to amend these
standards by using a multiplier of 100.
  The Agency believes that a leaching
test is the best way to assess waste
""^•minnnt mobility given the time ai"*
data constraints that EPA faces.
Although EPA acknowledges that a
leaching test generally only provides an
indication of mobility in ground or
surface water rather than in other media
(e.g* air), this pathway is generally
believed to be, for the purposes of this
screening, the most indicative of tae
potential hazard posed by mineral
processing wastes, and the most readily
and consistently applicable to all
mineral processing wastes, given the
constraints of the Agency during this
rulemaking. Other media will be
assessed for the Report to Congress.
 3.pHTest
                                     <*«
 .  a. General. Many commenters
 indicated that EPA's proposal to include
/ a pH test was appropriate. Other
 commenters, however, felt that major
 modifications were needed for the
 corrosivity characteristic. For example.
 one commenter stated that the Agency
 should change its definition of the pH
 test for corrosivity so that it applies only
 to liquid wastes. Another commenter
 maintained that the approach should be
 revised because it is inconsistent with
 the Court's decision in EOF I that mining
 wastes exhibiting the characteristic of
 corrosivity, as defined in the RCRA
 Subtitle C regulations, may not pose a
 threat to human health and the
 environment The application of a
 corrosivity hazard test to phosphate
 processing wastes, one commenter
 argued, would produce illogical and
 inappropriate results; it is only because
 aqueous phosphate waste streams are
 recycled that they ever consistently
 exhibit a characteristic of hazardous
 waste. This same commenter stated that
 for certain facilities, the pH may drop
 below 1.0 due solely to meteorological
 conditions.
   EPA believes that a pH test is an
 appropriate indicator of hazard tram
 liquid mineral processing wastes,
 regardless of whether the wastes were
 reused prior to their disposal The
 comparison of the waste's pH to the
 proposed standard identifies wastes
 that an so corrosive that it would not be
 credible  to consider them "low hazard"
 regardless of the industrial process used
 to generate the waste or the location of
 the facility.
   The Agency does agree that the pH
 test should not be applied to non-liquid
 wastes. However, as discussed more
 fully below in section ffl. EPA has
 established a working definition of
 liquid and non-liquid wastes that
 considers the physical and chemical
 nature of mineral processing wastes on
 both an as-generated and as-managed
 basis. The distinction between liquid
 and non-liquid wastes is really
 significant however, only when
 evaluating individual waste streams
 with respect to the Bevill volume
 criterion. Otherwise, as when analyzing
 waste samples in the laboratory.
 standard EPA definitions and protocols
 apply.
    b. Modification of the pH Standard.
 Many commenters stated that the
 proposed increase of the pH range by
  one order of magnitude (to a pH range of
 1.0 to 13 J) is correct and should not be  -
  changed. Other commenters. however.
  felt that the range should be increased

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36600     Federal Register / VoL 54. No. 169  / Friday, September 1. 1989 / Rules and Regulations
even further, while some commenten
felt that the range should not be
increased beyond the characteristic test
range (i.e.. 2 to 123}.
  One commenter arguing for a further
increase of the pH range stated that
EPA's proposed lowering of the
allowable pH level by only one pH unit
(1) does not reflect the intent of the
Berill Amendment (2) unfairly penalizes
operations that have improved their
treatment methods, and (3) contradicts
EPA's own statement that  the hazardous
characteristics tests need not be
determinative of Bevill status. Rather.
EPA should adopt a lower pH standard
of 0.5, which, this commenter believed.
would have no appreciable effect on
human health or the environment
because of the  limited migratory
tendencies of mineral acids.
  Two commenters supporting a further
increase of the pH range argued that
because mineral acids used in ore
processing are  not appreciably buffered.
the relative acidic strength of the
resulting wastes is overstated by the pH
measurement, adding buffering agents
simply to increase the pH above 1.0 is
inappropriate because such an addition
would interfere with resource recovery
operations. One of these commenten
illustrated the point by contending that
iron chloride wastes, though exhibiting a
very low pH value, would  otherwise
satisfy the low hazard screening criteria.
  As discussed above. EPA believes
that the comparison of the waste's pH to
the proposed pH range satisfies the need
to identify which wastes clearly are so
corrosive that they do not  merit
continued regulatory exclusion and
further study. The Agency does not find
the above argument* advocating a
further increase of the pH  range
convincing: any further increase in the
pH range may result in wastes that an
clearly not low hazard remaining in the
Bevill exclusion, which may in turn
compromise the protection of human
health and the  environment For
instance, the fact mat mineral adds are
not appreciably buffered does not alter
the fact that wastes of such low pH may
pose a hazard. In any case, today's rule
will not create  undue incentives to
buffer mineral processing adds above
the 1.0 level, since sampling of all high-
volume wastes is now complete.
  A commenter arguing for no increase
of the pH range beyond subtitle C
characteristic levels believed that (1) the
proposed rule is arbitrary. (2) it will
allow too many wastes to  remain within
the Bevill exclusion, and (3) EPA's
primary goal of protecting human health
and the environment will be
compromised,
  The Agency continues to believe that
a one order of magnitude increase in the
pH range is entirely appropriate as a
screening criterion to determine which
mineral processing wastes are clearly
too corrosive to remain exempt pending
detailed study. EPA also disagrees that
environmental protection would
somehow be compromised by failure to
use the subtitle C pH range for purposes
of identifying special wastes. EPA
stresses that wastes remaining under the
Bevill exclusion still will be evaluated
further for specific hazard (including
corrosivity) during development of the
Report to Congress.

4. Ignitability and Reactivity Tests
  Many commenters supported the
Agency's tentative position to not screen
mineral processing wastes for
ignitability or reactivity. Some noted
that the RCRA hazardous characteristics
tests for ignitability and reactivity are
not readily adaptable for a screening
function and, particularly in the case of
reactivity, are far too subjective to be
employed In the manner proposed for
the low hazard determination. One
commenter argued that the RCRA tests
for ignitability and reactivity should not
be used to judge low hazard because
they fail to identify unambiguously high
hazard mineral processing wastes.
Another commenter noted that
ignitability is irrelevant to moat mineral
processing wastes because most of
these wastes tend to be earthen or
aqueous.
  For three main reasons, EPA agrees
that the RCRA tests for ignitability and
reactivity are not appropriate and
should not be used in the low hazard
criterion: (1) The Agency currently has
little or no actual data on the potential
reactivity or ignitability of most mineral
processing wastes. (2) the tests for
ignitability and reactivity, because of
their nature, cannot be readily modified
for use as part of a screening criterion to
identify wastes that an dearly not low
hazard, and (3) despite the paudty of
actual test results, the Agency does not
believe, based upon best engineering
and professional judgment that mineral
processing wastes an particularly
ignitable or reactive.
5. Mobility and Toxidty Test
  The majority of comments on the
hazard criterion addressed the proposed
mobility and toxidty test For purposes
of this notice, these comments an
organized into appropriateness of (1) the
EP Toxidty and TCLP Tests. (2) the
proposed Method 1312, and (3) other
types of tests.
  a. EP (Method 1310) or TCLP (Method
1311) Testt. Many commenters
supported EPA's contention that more
appropriate tests than Methods 1310 or
1311 may exist for evaluating mobility
and tbxicky. Both of these tests are
based on an assumption that under a
plausible worst-case mismanagement
scenario, wastes might be co-disposed
with municipal solid wastes, and several
commenters argued that this disposal
scenario is implausible for mineral
processing wastes. The EP Toxicity Test
one commenter stated, does not
correctly represent other conditions
experienced by the mineral processing
industry, such as low precipitation and
high waste volume. Some commenten
noted that this same argument should
apply to mineral processing wastes
removed from the Bevill exclusion,
which, they stated, would be in contrast
to EPA's statement in the April NPRM
that mineral processing wastes removed
from the Bevill exemption will be
subject to Subtitle C if they exhibit EP
toxidty, and that the EP test may be
used to determine whether Subtitle C
requirements qualify as "applicable or
relevant and appropriate requirements"
at CERCLA sites.
  Other commenten disagreed,
however, with EPA's proposal not to use
the EP Toxidty Test These commenten
noted the test's well-established
reputation, and the large amount of data
already collected by the Agency. EPA
proposed Method 1312, they argued,
without demonstrating the inadequacy
of the EP or TCLP tests (e.g., EPA has
not demonstrated that the EP or TCLP
tests significantly and consistently
overestimate leaching of metals from
mineral processing wastes). These
commenten went on to note that the
argument that monofill disposal implies
that the EP test is inappropriate for
mineral processing wastes dearly was
rejected by EPA in promulgating the EP
test in I960. Furthermore, the
commenters stated, not using the EP test
because of the nature of the extraction
medium falsely assumes that each
processing waste is disposed of in a
manner that predudes it from coming
into contact with other processing or
mining wastes when, in fact there is
strong reason to presume an addic
disposal environment These
commenters contended mat (1) many
mining and metallic on processing
wastes have tig^'flc*"* add generating
potential (which may result in very
acidic gondittft"*! even in a monofill),
(2) many wastes an stored or disposed
in unlined units, (3) many sites are
located In conjunction with mining and
other similar activities, (4) many
exempted wastes an themselves addic.
and (5) EPA's use of a 100-fold dilution/

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          Federal Register / VoL 54. No. 160 / Friday. September 1.1989 / Rule* and Regulation*    36601
attenuation tutor I* diffidently
modified to account for variability in
leaching condition*. EPA. they believed,
should consider that exposure of non-
acidic waste* to acidic conditions
through commingling with other wastes.
leachate. or contaminated nmoff is •
highly plausible scenario and certainly a
reasonable worst-case scenario.
  The Agency acknowledges the welt*
established reputation of the EP Toxicity
Test and the large amount of EP extract
data for mineral processing wastes, but
nevertheless believes that the EP and
TCLP tests and data generally are
inappropriate for identifying mineral
processing wastes which are "clearly
not low hazard" under today's screening
process and thus should be removed
from the Bevill exclusion. The purpose
of the EP and TCLP testa an to
determine which solid wastes are
"hazardous wastes'* under sections
1004(5) and 3001(a) of RCRA: by
contrast, today's hazard criterion
determines only whether a waste should
be temporarily excluded from regulation
under section 3001(b)(3).
  EPA agrees that mineral processing
wastes may be disposed in acidic
environments; however, the acids to
which they will usually be exposed an
mineral acids, rather man organic acids
such as that used in the EP and TCLP
tests. This fact is central to EPA's use of
Method 1312 for evaluating the hazard
of mineral processing waste*. In
contrast to the disposal of municipal
refuse, mineral processing wastes are
unlikely to be managed in environment*
that contain or are capable of generating
organic acids, such as the acetic add
formed by decaying garbage; mineral
processing wastes, with very few
exceptions, do not contain appreciable
quantities of organic natter. Thin. EPA
believes that use of the EP or TCLP
would identify certain mineral
processing wastes as not low hazard
which EPA believes an appropriate for
further study under section
because- they dp not meet one or man of
the Bevill criteria are not special wastes.
and will be evaluated for possible
regulation under subtitle C in the same
manner as any other industrial solfit"
waste. EPA believes that use of the EP
(or, in the near future, the TCLP) is
appropriate for noa-Bevill mineral
processing wastes removed from the
exclusion today because EPA does not
have reason to believe that the wont-
case mismanagement scenario would be
implausible for such low-volume wastes.
Thus, these tests an appropriate for
determining the hazardous
characteristics of particular waste
streams that an potentially subject to
regulation under RCRA section 3001
without further study.
  Commenters arguing for use of the EP
Toxicity Test also noted several sources
of information that indicate that the use
of organic adds may affect the leaching
of lead differently than of other metals.
In addition, they stated, the
nprodudbility of these test procedures
could be adversely affected with respect
to lead. They noted one study that
suggested  that in cases in which lead
was the only constituent that leached
above regulatory thresholds, an
additional test (e.g.. using suttoric add)
should be  used to eliminate the effect of
organic complexation while stffl
retaining the acidic conditions. One
group of coomenten postulated the
inappropriateness of Method 1312 (and
argued for a more aggressive leaching
method) by citing a certain study*
evaluation of the waste extraction test
(WET) and possible alternatives. This
study, they said, demonstrated mat test*
other than WET—similar to Method
1312 according to one commenter—
  jfFer from very low or no ionic strength
 and buffering capacity. The stud;
 authors, they contended, nf
dair
 that organic add* employed by WET.
 EP. or TCLP are overly
water generally exerts minimal
extraction from slags and doe* not
reflect conditions to which slag is
exposed in the natural environment
Other commenters, however, argued
that deionized water extraction is well
tested and is "MA enough to screen out
only the highly hazardous wastes which,
they contended, an the only wastes that
EPA should be trying to eliminate from
the exdusion at this time. A neutral
water method, one commenter went on
to state, is an appropriate basis for
evaluating which wastes removed from
the Bevill exdusion meet the criteria for
hazardous waste regulation.
  As indicated in the April proposal, the
date from deionized water extraction
tests were used as surrogates since
there was very little date on mineral
processing wastes available at the time
using Method 1312. However. Method
1312 uses simulated acid rain as a
leaching fluid to attempt to reflect
conditions in the •'iu*lwf'">***- For >t»«
reason. EPA believe* thet it i* a more
accurate screening \v. » than would be
the deionized water r*trf ettan method.
While Method 1312 ••- expected to be
slightly more aggressive man the
deionized water extraction test tt is still
expected to be less aggressive than the
EP toxidty test and hence, more
 appropriate as a screening tool
   Since the proposal EPA has collected
 samples of all potentially high volume
 mineral processing wastes for analysis
 using Method 1312. EPA has been able
 to complete laboratory analyses of
 samples from seven of the nine high
 volume wastes for which EPA used
 deionized water or EP toxidty data to
 propose hazard determinations in ApriL
 Now that the Method 1312 data are
 available, the Agency need not rely
 solely on neutral water or other test
 data. EPA notes here that the new
          mnA analytical data obtained
TCLP extract data, and a* stated ta the
April NPRM and dJacnseed in Section m
of thi* preamble. EPA wffl use existing
EP extract data to tab evaluate whether
a waste stream which fafla the baste
toxidty teat (using Method 1312) should
nonetheless remain within the Bevill
exdusion under certain condition*. EPA
believe* that use of EP/TCLP extract
data in**»*« fashion la appropriate to
account for possible anomalies in the
Method 1312 result*, since EPA
concedes that Method 1312 hes not been
used in a significant number of past
   EPA recognizes the potential
 differential treatment of the EP test with
 respect to lead-containing wastes
 (because of the organic add used m the
 test). Bat because Method 1312 docs not
 use an organic add. this difference i*
 not expected to be a problem, ra fact,
 recent resnlta of comparisons between
 Method* 1310 and 131Z which EPA
   A* already stated, waste streams that
 an removed from the Bevul exclusion
 indicate that the difference in
 aggressiveness between the two
 methods with respect to lead is gteater
 than the difference with respect to other
 contaminants. (See bebw tor additional
 discttMtan.00 thia point)
   One commenter argued that the mseol
 a deionized water extraction test to
 measure inherent toxidty of smelter slag
 is inappropriate because deionized
        using Method 1312 confirm the Agency*
        earlier findings with respect to which of
        the nine wastes an and are not low
        hazard.
          b. Method 1312— Simulated Acidic
        Precipitation Procedure. Several
        commenten supported EPA'* proposed
        use of Method 1312 for testing the
        hazardous teachability of mineral
        processing wastes. Some endorsed the
        move toward Method 1312 because they
        felt it waa more appropriate than the EP
        Toxidty Test (although they believed
        that Improvement* could be made).
        Many other* contended that for a
        variety of reason*. Method 1312 wa*
         inappropriate for determining low
         hazard. The reasons noted related to  „
         general issues, a* well as the method*
         supposed lack of representativeness a*

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36602     Federal Register / Vol 54. No. 169 / Friday. September 1. 1989  /  Rules and Regulations
 the environmental condition! to which
 mineral processing wastes generally are
 exposed, the lack of available data to
 evaluate its accuracy, the contention
 that the method is not less aggressive
 than current methods, the questionable
 applicability of the method to local and/
 or mineral processing conditions, and
 finally a variety of specific technical
 issues. These comments are addressed
 in detail below.
  i. General. Several commenters stated
 that Method 1312 was not finalized and
 could not be replicated. According to
 one commenter. EPA must abandon
 Method 1312 and instead rely on the
 RCRA section 8002(p) factors to study
 all mineral processing wastes.
  EPA believes that although Method
 1312 was not finalized via a final rule at
 the time of the proposed rule, sufficient
 data were available in the docket to
 conduct an appropriate  evaluation of the
 method's suitability as a mineral
 processing waste screening test.
 Furthermore, in response to these
 comments. EPA has examined
 additional data which have become
 available since the proposal (these data
 may be found in the docket for this
 rulemaldng). In response to the
 suggestion that a RCRA section 8002(p)
 study should be conducted to evaluate
 hazard, and as discussed previously.
 EPA believes that a quantitative
 screening test is the most appropriate
 method for identifying wastes which are
 not low hazard, as required by the EOF
 IL The Report to Congress will be
 conducted only for the wastes remaining
 in the Bevill exclusion.
  Many commenters stated that EPA
 should make the toxidty standards for
liquid wastes less stringent because, as
proposed, the Agency would be
measuring low hazard at the same
constituent concentration values used to
 determine whether a liquid waste
 exhibits a characteristic of hazardous
waste: specifically, the method would
 impose the same criterion for liquid
 mineral processing wastes as would the
 EP Toxicity Teat (Method 1310). This
 judgment is counter, they argued, to
 EPA's intention of developing a teat to
 determine which wastes are clearly not
 low hazard, and la contrary to die ruling
 of EOF I which maintained that the
 Bevill Amendment was designed to
 temporarily suspend regulation of
 special wastes under subtitle C
 irrespective of whether they fail
 hazardous characteristic tests. As an
 alternative, some commenters
 recommended, EPA should adopt the
 approach used by Congress in
 identifying liquid hazardous wastes
 subject to land disposal restrictions.
Finally, several commenters suggested
increasing by one order of magnitude
the contaminant concentrations used to
determine'the hazardousness of the
liquid.
  EPA believes that an adjustment of
the screening tool for determining which
wastes containing less than 0.5 percent
solids are not low hazard is
inappropriate, because the purpose of
the 100-fold increase of the MCL is to
account for dilution/attenuation of the
dissolved contaminants in the
environment As already indicated, the
Agency believes that once contaminants
are in dissolved form and available for
dispersion in the environment the same
standard should be applied to evaluate
their toxicity, regardless of whether the
solution tested is a waste sample or a
test extract
  ii. Evaluating the Accuracy of Method
1312. Some commenters stated that the
limited tests that have been performed
on Method 1312 focus on only two of the
eight metallic constituents of concern
(lead and cadmium) and. therefore, are
not adequate to support application of
Method 1312 to a wide variety of
processing wastes. Furthermore, a
commenter stated, the Agency should
question the accuracy of the
interlaboratory testing which compared
Methods  1310,1311. and 1312 only for
the parameter of lead and gave no
information regarding the effectiveness
of these methods on  the teachability of
other elements. One  commenter
believed that Method 1312 is inadequate
as a screening test because (1) the
degree  to which 1312 is less aggressive
than 1310 is unknown and (2) many data
that are available for waste streams
using 1310 and 1311 will become
unusable if Method 1312 becomes the
test This commenter. however.
supported EPA's proposal that data from
Methods 1310 and 1311 should be used
to a limited extent if Method 1312
remains as the mobility and toxidty
teat
  As discussed above. EPA believes
that both the previous and the current
teat date for Method 1312 adequately
prove the usefulness of this method for
the purposes stated. In addition, the
effectiveness of Method 1312 (e*.
compared to Method 1310) on elements
besides lead has been confirmed
(supporting date may be found in the
docket for this rulemaidng). By
definition, a screening test is designed to
be accurate only to the extent that it
separates out only those segments of a
population (in this case mineral
processing wastes) that clearly do not
meet a certain set of criteria (in this case
low hazard). EPA reiterates that Method
1312 is only being applied as a screening
test .to identify wastes that clearly are
not low "hazard and therefore do not
qualify for a Bevill exclusion. Those
wastes that do qualify will still be
further evaluated to determine what
controls are needed.
  iii. Applicability of Method 1312 to
Mineral Processing Wastes and Soils.
According to several commenters.
Method 1312 is inappropriate to
determine the mobility of contaminants
in mineral processing wastes and
wastewaters because the method
originally was designed for testing
contaminant migration in soils.
  EPA disagrees that Method 1312 is
inappropriate for this or any other
reason. The original purpose of Method
1312 is irrelevant to its purpose in this
rulemaldng. just as its purpose here is
irrelevant to other rules that do not
involve identification of wastes subject
to the Bevill exclusion. For the reasons
presented throughout this preamble and
in the background document to this
rulemaldng. Method 1312 is believed to
be appropriate for use on mineral
processing wastes within the context of
the Bevill exclusion hazard criterion.
  iv. Appropriateness of Method 1312 OB
a Modification of the Standard As
stated previously, several commenters
acknowledged Method 1312s
appropriateness as a modification of the
mobility and toxicity standard.
According to some commenters,
however, the use of Method 1312 would
not represent a less aggressive standard
and. therefore, would be contrary to
Congressional intent They contended
that contrary to EPA'a claim. Method
1312 is not consistently less stringent
than the «<«Hnfl hazardous waste
characteristics tests; for example, in one
EPA test Method 1312 leached more
lead than the EP Toxicity Test in 12 of
18 analyses conducted on two soil
samples. Before Method 1312 is
incorporated into a formal rulemaldng.
they stated, date should be gathered to
unequivocally demonstrate that the
leachate concentrations wiD not be
greater than those obtained by Method
1310.
  The Agency believes that in general
Method 1312 will be less aggressive than
the EP test and the TCLP test The
following excerpt is from the EPA test
          irred to by the commenters as
f«vO(T FBI
an explanation of the results for the two
samples described by the commenters:
                        met • distilled
                        *y lulls lead
  Method 1312. which is in «
  rater adracnoa aolubilized <
except for the two North Carotin samples, S
and a, which contained very Ugh levels of
lead la the bulk soiL Results by Method 1310
for these same two soils wm i

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           Federal Register / VoL 54, Na 169 / Friday. September 1, 1989 / Rules and Regulations     36603
agreement wtth the 1312 imdu becnee no
acetic add was added daring the 1310
extraction of UMM two eoils. That is. for both
methods the extracting fluids were needy  .
identical far these two samples.
In other words, these two unusual soil
samples from a Superfund site were
both highly acidic and very highly
contaminated. In this situation, the EP
test and Method 1312 provided
essentially the same results. It is also of
note that the TCLP. which will replace
the EP, was significantly more
aggressive than either the EP or Method
1312 for these two samples. The results
from these two samples and the
conditions of the sites where they were
collected are in contrast to the
conditions typically found at and
sampling results derived from mineral
processing facilities, as indicated by
EPA's recent sampling program and
laboratory analyses using Method 1312.
  v. Applicability of Method 1312 to
Local and/or Mineral Processing
Conditions. Some commenten stated
that Method 1312 is not applicable to
mineral processing operations located in
certain areas became the pH of the
testing medium is not representative of
rainfall in those areas and would
potentially yield erroneous results;
furthermore, because many mineral
operations are in arid areas, the Method
1312 procedure of saturating the waste
sample in an acid solution for 18 hours
is non-representative of these sites.
Other commenten believed that Method
1312 will produce misleading results
because it (1) unreaUstically targets
certain elements in Bevill wastes, (2)
produces leaching results that bear no
relationship to actual management
practices, and (3) fails to account for
site-specific conditions. One commenter
suggested mat EPA allow the extraction
     for mineral processing wastes to
                                                      enters. One?
fluic
depend on the region of the country
where the waste is managed (e.§, a pH
of 4.4 could be used for east of me
Mississippi and a pH of &2 could be
used for west of the Mississippi).
  Although Method 1312 includes two
different extraction fluids for soils to
attempt to account forgeognpmc
variations in imtafslt this variation is
appropriate only tor evaluating ill-place
soils sine* their geographic location to
known. For evaluating waste* for a
national regulation, the Agency cannot
assume that all of a particular waste
will be generated and managed hi any
particular location or region. Therefore.
to be conservatives protecting human
health and the environment tha Agency
will apply the pH4i extraction fluid to
all mineral processing wastes.
  vL Specific Technical Ismes. A
variety of specific technical issues were
commenter argued that EPA should
abandon the use of the Zero Headspace
Extractor (ZHE) in Method 1312 because
its erratic results with the extraction of /
volatile* is a troubling source of
unexplained variation. Another
commenter arguing against the
applicability of Method 1312 stated that
the proposed batch test approach does
not account for the time dependent and
flow dependent kinetics of the
mobilization of spedes from wastes and
will overestimate the resultant
concentrations when compared to a
natural system.
   In response to the first point the
Agency believes that it is unlikely that
most samples will contain volatile
organic* at levels of concern, nor does
the Agency plan on assessing volatile
organic* in metal processing wastes;
thus, then is no reason not to use the
ZHE with the test Concerning the
second point EPA agrees that
overestimate* may result but has
already accounted for potential
ovenstimation by the use of a multiplier
of 100 for the drinking water standards
that are used for comparison.
   Many commenten addressed specific
aspects of the leaching liquid that
should be used for Method 1312. For
example, will the extraction fluid be
brought into equilibrium with the carbon
dioxide in the air? If so, they stated, tha
buffering capadty of the fluid will
change over time if the fluid is mixed
 and then stored. For consistency.
 therefore, the description of Method
 1812 should state that the fluid is to be
- mixed immediately before use. or
 brought into equilibrium with
 atmospheric carbon dioxide.  .
   Another commenter on the extraction
 fluid used for the Method 1312 test
 stated that a carbonic add/sulfuric
 add/nitric add cocktail which has been
 specifically prepared to simulate
 precipitation, should be used. Another
 commenter added that if EPA wen to
 use Method 1312. the extraction fluid
 volume should be increased from 20rt to
 SOrt. or the MCLs should be increased
 for wastes which have prTs below those
 of die recommended extraction fluids.
 One commenter contended that then
 an technical difficulties tat using the*
 deionized water required by Method
 1312. For example, the commenter
 stated, deionized water can have
 variable pH level* which could lead to
 inconsistent results. Some commenten
 stated mat rather than Method 1312,
 EPA should us* ASTM D 3987 (a
 distilled water leach test) a* a more
 appropriate screening test
   The Agency believe* that Method
 1312, as described in the background
appropriate as a screening test for     —
mineral processing special study waste
The cmient extraction fluid formulation "
has been adequately tested and does not
need modification, and the rationale for
reducing the stringency of the
comparison toxidty levels for wastes
with low pH levels is unclear. The
statement that deionized water can have
variable pH levels is sound, but this
should not pose a problem because the
pH is subsequently adjusted to reflect
add precipitation. Finally, given mat
Bevill mineral processing wastes are by
definition generated in large volumes.
then is no justification for increasing
the extraction ratio (e.g* from 20rt to
SOrt) to simulate actual environmental
conditions when evaluating candidate
wastes using Method 1312.
  If EPA chooses to promulgate Method
1312, some commenten stated, it should
address whether a particle size
reduction step is appropriate or if the
step creates additional surface area that
artificially elevates teachability.
Another commenter contended that EPA
should replace the particle size
reduction requirement hi Method 1312
with the Structural Integrity Procedure
because a number of mineral processing
wastes exist as hurt monolithic wastes
that an unlikely to be physically      _
degraded in a landfill. This commenter ""
stated that congressional floor debate
indicated recognition of this fact One
commenter believed that the selected
particle size in the proposed Method
1312 is not a good analog of the partide
size distribution in spent on materials
from heap leaching, and another
commenter stated that the concept of
partide size reduction should be
 eliminated altogether from Method 1312
 and wastes should be tested hi their
.natural state.
   The Agency believes that with
 respect to partide size reduction,  there
 is a wide variety of partide sizes among
 the candidate Bevill wastes. In order to
 achieve analytical results that are
 broadly applicable across sites and ovei
 time, the partide size reduction step is
 necessary in order to ensure that  the
 smaller parades in the waste as
 generated or after disposal are
 adequately represented and that the
 Agency has data with which to make
 regulatory decisions for an entire sectoi
 based upon sampling results from a
 small number of facilities.
   c. Othtr Typtt of Tests. On*
        Bter objected to the separate tes
                                                                            proposed for wastes suspected of
                                                                               taining cyanides. The commenter
                                                                               tended that EPA must choose eit)
                                                                            con
                                                                            the extraction solution proposed for

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36604     Federal Register / Vol 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
cyanide, or that proposed for metals: to
propose a separate extraction solution
to assess cyanide and metals singularly
Is illogical and technically incorrect'
Some commenters stated that EPA
should utilize a method developed by
the California State Water Resources
Board that estimates acid-forming
potential of mining wastes, because EPA
should not classify mineral processing
wastes with significant acid-forming
potential as low hazard. Acid Mine
Drainage (AMD), the commenters
contended is one of the most serious
environmental concerns at mining sites
and is pertinent to the mineral
processing waste issue given the
potential for processing waste storage at
mining sites and the potential for
processing waste disposal sites to
become acidified.
  One commenter stated that an
appropriate test for inherent toxicity
should account for complexing as a
release mechanism for metals; for
instance, the ASARCO smelter located
near Tacoma. Washington disposed slag
in low lying areas rich in organic matter.
which has resulted hi high metals
loadings being released into local
waterways.
  EPA disagrees with the suggestion
that the separate test for cyanides be
eliminated. Separate tests are
appropriate, because metallic elements
in solid samples must be acid-digested
for analysis, while cyanides can be
extracted using less aggressive methods.
Acid digestion of cyanide-bearing
materials is also dangerous, because it
can generate deadly HCN gas. In order
to both collect accurate analytical data
and protect laboratory personnel. EPA
will continue to use separate testing
methods. The Agency agrees that add
mine drainage is one of the most serious
environmental concerns at mining sites.
At this point however, the Agency is
only applying a screening test (Method
1312) to identify those wastes which
clearly da not qualify for the special
waste exclusion. Those wastes that do
qualify will be further studied to
determine the need for additional
controls, and the acid-forming potential
of those wastes is one of the factors that
will be evaluated. Finally, die Agency
believes that it is technically infeasible
to consider factors requiring site-specific
data, such as organic complexation of
metallic contaminants, in a screening
test This and other risk-related
variables will instead be considered for
the Report to Congress on wastes
retained within the Bevill exclusion.

6. Constituents for Testing
  a. Constituents Proposed in Mobility
and Toxicity Test Some commenters
stated that a major problem with the
proposed constituents to be used in the
mobility and toxicity test is that no
distinction is made between the
hexavalent and bivalent forms of
chromium, which is important given that
EPA has described hexavalent
chromium as the more toxic form. One
commenter noted that EPA has (1)
decided to consider only hexavalent
chromium concentrations when listing
solid wastes as hazardous wastes and
(2) excluded from Subtitle C regulation
wastes that fail the EP Toxicity Test due
primarily to the presence of bivalent
chromium. The commenter claimed that
the Bevill status of wastes associated
with the processing of titanium ore
which contains only bivalent chromium
would be affected by the proposed
approach.
  EPA believes that total chromium
concentration is a more valid and
environmentally protective indicator of
hazardous potential than is a measure of
hexavalent chromium, principally
because chromium-bearing wastes may
be exposed to oxidizing conditions in
the environment (which would
transform bivalent chromium to
hexavalent chromium). Therefore.
measuring only hexavalent chromium in
mineral processing wastes on an as-
generated basis might yield an
inaccurate indication of (i.e., understate)
actual degree of hazard. Thus. EPA will
continue to compare total chromium
leachate concentrations to the health-
based level for hexavalent chromium.
This same concern is reflected in EPA'a
proposed Toxicity Characteristic rule
(51FR 21648), and was the primary basis
upon which six low volume mineral
processing wastes were listed (53 FR
35412) in response to the same federal
Appeals Court ruling that precipitated
rtila rulonnk
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           Federal Register / VoL 54. No. 189  /  Friday, September 1.  1989 / Rules  and Regulations     36605
must not be used. Phosphogypsum.
according to this commenter. may
exhibit radioactivity because of
naturally occurring radionudides. but
both Congress and EPA have already .  -
given the radiological aspects of
phosphate processing extensive
consideration, making it unnecessary for
the Agency to establish a "bright-line"
test for radioactivity.
  Another commenter stated that
screening mineral processing waste
streams out of the Bevill exclusion
based solely upon radioactive
characteristics without developing
standards relevant to the hannfulness of
these wastes would not be appropriate
because the waste would subsequently
fall under Subtitle C regulation, which
may not be applicable to radioactive
waste: a facility that had a waste
removed from the Bevill exclusion might
be required to incur substantial expense
without public health benefit
  EPA believes that radioactivity and
other constituents suggested by
commenters should not be included as
components of the hazard criterion
because they are not addressed in the
hazardous waste characteristic tests.
which are the cornerstone of and
reference point for the low hazard
criterion. EPA believes that it would be
logically inconsistent to remove a waste
from the Bevill exclusion during this
screening on the basis of a hazard
characteristic that would not by  itself.
cause the wasta to be regulated under
subtitle C These constituents will
however, be considered in the  detailed
studies that will underlie the Report to
Congress on Bevill mineral processing
wastes. Accordingly, the potential risk
posed by the radioactive or other nature
of any of these wastes will be addressed
in detail within the next year. EPA plans
to utilize data developed for the
radionuclide NESHAP as part  of this
evaluation.
7. Additional Standards
  Many commenters stated that
although the Agency's use oIMCLs to
measure hazard to •*"«•" health is
supportable, a major deficiency in the
approach is the use of the MCL for
arsenic (• frequent constituent of
processing wastes) in evaluating human
health risk: arsenic's cardnogenicity
mandates a more stringent standard for
human health. Specifically, a NT* risk
level for arsenic was suggested. These
commenters also contended that EPA
should not rely solely upon the MCL. but
instead utilize the lowest standard from
among the chronic ambient water
quality criteria. MCL. cancer risk level
or oral reference dose for given
substances, and then apply the 100-fold
dilution factor to establish an
appropriate low hazard standard. In
addition, these commenters stated, the
proximity of many processing sites to  '
drinking water supplies, underlying
graundwater, and human populations, as
well as numerous damage cases
demonstrating risks to public health, ~
argues for a measure of hazard that
directly addresses human health.
  Commenters also stated that many
substances present in processing wastes
are more toxic to aquatic organisms
than to humans. Moreover, MCLs do not
exist for some toxic substances whereas
ambient water quality criteria have been
developed for many additional
substances. Furthermore. EPA has
stated in the uncompleted 1988 draft
Report to Congress on selected mineral  .
processing wastes that all of the
potentially hazardous wastes studied
had constituent leachate concentrations
that exceeded ambient water quality
criteria.
  In addition, these commenters added.
a number of the mineral processing
wastes exceeded hazardous waste
standards even when extracted with
water. All the copper, zinc, and lead
processing wastes, they stated, contain
arsenic at levels that exceed a 10~*
lifetime cancer risk level; even the
minimum concentrations of copper
process wastewater,  copper acid plant
blowdown. copper bleed electrolyte, and
zinc process wastewater sampled
exceeded this cancer risk level
  In contrast several commenters
stated that for a variety of reasons EPA
should not use additional standards.
One commenter stated that an aquatic
organism or radiological standard
should not be used because aquatic
organisms and radiological concerns are
amply addressed by  statutes other than
RCRA. Another commenter stated that
the aquatic organisms standards are
inappropriate for the following reasons:
RCRA is almost exclusively a human
health-based program: the protection of
 aquatic organisms is not an integral part
 of RCRA other statutes protect aquatic
 organisms; and mineral processing
 waste streams are often closed-loop and
 entirely contained within the facility.
   Although die Agency strenuously
 ^ffHjf"t with the contention that the
 scope of RCRA is generally restricted to
 protection of human health rather than
 more broad additional protection of the
 environment it has decided not to
 augment the standards that were
 presented hi the April notice. Part of the
 reasoning behind this decision is not
 that these standards an irrelevant, but
 that applying them requires site-specific
 data Out are not currently available for
most candidate mineral processing     -
wastes. For example, applying Ambiem
Water Quality Criteria in any realistic
way requires site-specific information
on the flow of potential receiving
waters, which vary over many orders of
magnitude between sites. A more
important argument, however, for
retaining the standards proposed in
April is related to the argument
presented in the previous section on
other constituents: EPA believes that
other standards and criteria suggested
by commenters should not be included
as components of the hazard criterion
because they are not addressed in the
hazardous waste characteristic tests.
which are the basis for the low hazard
criterion. During the Report to Congress.
however, many of the additional
standards and criteria referred to by
commenters will be addressed.

& Application of Tests

   Some commenters disagreed with
EPA's proposal that wastes fail (i.e., are
removed from the Bevill exclusion)
when two or more facilities fail the
hazard criterion. Many believed that the
proposed "two-facility" decision rule is
not stringent enough and the proposed
plan to sample waste streams  and apply
Method 1312 ignores existing data, while
others argued that the proposed
 application of the tests would  be
 arbitrary and capricious. One
commenter questioning the statistical
 accuracy of the "two-facility"  test
 suggested that EPA sample a significant
 majority of the waste streams. Another
 commenter added that even if one could
 accept the statistical validity of making
 a recommendation based upon only two
 samples, the samples used in the test
 may have demonstrated entirely
 different characteristics: for example.
 one of the samples could have
 represented Missouri ores and the other
 Western ores.
   The Agency stresses that it must make
 decisions, using limited data and within
 certain time constraints, about the
 degree of hazard posed by mineral
 processing wastes. Therefore, the
 screening approach  described in the
 April NPRM and refined hi today's
 preamble was developed to identify
 wastes that clearly are not low hazard
 and therefore should not remain within
 the Bevill exclusion. In response to
 comments, EPA has refined the hazard
 criterion to allow for the use of
 additional relevant data when a waste
 is generated at five or more facilities
  (see section m for details). Moreover.
  EPA has collected additional data on
  the "'"• high volume wastes for which"*1
  the Agency proposed unconditional

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 36606    Federal Register / VoL 54. No. 169 / Friday. September 1.  1989 / Roles and Regulations
 Bevill exclusion decisions in April Date
 on other candidate Bevill mineral
 processing wastes will not be available
 until the September proposal
   The "two-facility" rule, the Agency
 believes, is appropriate when either (1)
 substantial additional relevant data are
 not available or (2) less than five
 facilities generate the waste. In the
 latter case, the rule translates into the
 question of whether half or more of the
 facilities generate a mineral processing
 waste that fails the comparison of the
 Method 1312 extracts to the toxicity
 levels. The Agency believes that the
 "two-facility" rule is a reasonable
 balance between too much and too little
 stringency. As for whether failure for
 different constituents at different
 facilities proves the inadequacy of the
 two-facility test EPA believes that this
 type of situation is precisely why the
 low hazard criterion (and the
 characteristics tests upon which it is
 based) contains multiple factors. It
 matters little why a particular waste is
 not low hazard at one site or at multiple
 sites. What is important is that EPA has
 a method of identifying  the mineral
 processing wastes that are not low
 hazard, for whatever reason.
  EPA. one commenter noted, should
 require that the pH values for
 comparison be the average of a
 statistically valid number of samples
 that are representative of the waste
 stream: otherwise non-representative
 samples could incorrectly label an entire
 waste stream as hazardous. The Agency
 believes, however, that using the median
 rather than the average  of the pH values
 when more than two samples are
 available for a facility is more
 appropriate because pH is measured on
 a logarithmic scale; the average of the
 anti-logs of multiple values will always
be dominated by the lowest value.
  Some commenters recommended that
EPA determine that a processing waste
passes the low hazard criterion if it
passes the criterion for any single
facility generating that waste. The
Agency believes, however, that this
approach would be insufficiently
protective and exempt wastes which an
clearly not low hazard at a «
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           Federal Register / Vol. 54, No.  169 / Friday, September 1. 1989 /  Rules and Regulations     36607
Agency has proven that this is a viable
approach by utilizing it with mining and
benefidation wastes.
  Several commenters argued that EPA
should consider the quantity of waste in
evaluating its potential hazard. They
suggested that the Agency should.
through the use of a variable dilution-
attenuation factor applied to high-
volume wastes, incorporate a measure
of waste quantity into its proposed
criterion.
  These commenters also suggested that
EPA consider all environmental data to
determine actual risk arising from
mineral processing wastes. They
provided data on locational
characteristics of mineral processing
sites in order to lend support to their
argument that there is a need to
consider environmental risk at least as
carefully as risk to human health in
evaluating processing wastes.
  The Agency reiterates its position on
the use of risk or other site-specific
information in the application of the low
hazard criterion; this type of approach is
inappropriate due to time constraints
and EPA's belief that the hazard
criterion is a screening tool for mineral
processing wastes and is not intended
as a replacement for the detailed study
required by statute. That study will
incorporate information such as waste
management practices, waste
characteristics, and site characteristics.

C. The High Volume Criterion
  The April 17.1988 NPRM specified a
high volume criterion to be used to
identify high volume mineral processing
wastes. This criterion superceded and
modified the original high volume
criterion contained in the 10/20/88
proposal In the April notice, the Agency
stated that a waste stream would be
classified as a high volume waste if it is
generated at an average rate of more
than 50.000 metric tons per facility per
year. To account for fluctuations in
minjn-^ commodity tnafV''tti th^ test
was to be applied to the highest avenge
generation rate during any one year
between 1983 and 1988. The actual
cutoff selected by EPA for die high
volume criterion was based on urge
volume waste streams currently being
managed under Subtitle C regulations.

1. General Comments
  Several commenters objected to any
use of a "high volume" criterion to
determine Bevill status. In particular.
one commenter argued that the criterion
discriminates against those sectors
which, by nature of their operations, an
small or are operating at reduced levels
in a depressed market Another claimed
that the use of only a high volume
criterion will lead to inconsistent results
by removing from exclusion mineral
processing wastes that Congress
intended to include within Bevill and
which would be likely to remain exempt
following submission of the Report to
Congress, while retaining in the
exclusion some high volume wastes that
may be subject to stricter regulation
after study for the Report to Congress.
  Another commenter argued that
establishing a stringent high volume
criterion as a screen for permanent
exclusion from Bevill is inappropriate  .
because it severely limits the regulatory
options available to address particular
waste streams. They maintained that the
criterion should be construed liberally
because retaining a waste under Bevill
merely makes it eligible for study  and a
subsequent determination by EPA on
whether the waste should be subject to
Subtitle C regulation.
  Several commenters recommended
that EPA not rely solely on a volume
criterion to determine Bevill status. They
asserted that many factors were to be
studied before mineral processing
wastes were regulated and. in addition,
that Congress intended low volume
wastes which posed significant
manageability problems to still be
eligible for the Bevill exclusion. They
argued that the Agency should consider
those "high volume" issues unique to
each industry that generates such
wastes, including those characteristics
nmiMjal or unique to the mineral
processing industry.
  As discussed at length in the April
notice, the Agency rejects these
arguments as inconsistent with the
Court's reading of legislative intent and
as contrary to the special waste concept
Only waste streams that are truly
"special wastes" an eligible for
examination in the Report to Congress.
The high volume criterion has always
been central to the special waste
concept and is a necessary and
appropriate first screen in the final
determination of a mineral processing
waste's Bevill status. Other industry-
specific factors relevant to mineral
processing waste management will be
considered in EPA's Report to Congress
addressing those wastes that an high
volume and low hazard.

2. Separate Volume Criteria for Liquid
and Non-Liquid Waste Streams
   In the April 17 NPRM. the Agency
solicited comment on the use of separate
high volume cut-offs for liquid and solid
mineral processing wastes. Specifically.
EPA suggested 1.5 million metric tons
per year as a volume cut-off for liquid
wastes. The consideration of a higher
cut-off for liquid wastes was predicated
 on the fact that industry routinely
 manages hazardous wastewater         -•
 volumes in the millions of gallons per
 day per facility (i.e* well over one
/million metric tons per year), which is in
 marked contrast to non-liquid waste
 materials which an typically generated
 and managed in much smaller
 quantities.
   Comments on a separate volume
 criterion for liquid wastes wen varied.
 While some commenters stated that not
 only is a separate wastewater cutoff
 wholly appropriate, it should be much
 larger than 1.5 million metric tons.
 others contended that a separate
 criterion should not be employed at all.
   Several commenters supporting a
 separate criterion for liquid wastes
 stated that EPA should employ a
 separate volume criterion for liquid
 wastes higher than the proposed 1.5
 million metric tons per year. They
 asserted that the proposed 50,000 metric
 tons per year threshold cannot be
 justified for liquid wastes even at
 average hazardous waste treatment
 storage, and disposal facilities (TSDs):
 then must be a separate liquid volume
 criterion, and it should be substantially
 larger than 1.500,000 metric tons per
 year. Specifically. EPA should establish
 the volume criterion by determining the
 volume representing the 99th percentile
 of volume handled at regulated
 hazardous waste TSDs.
   These commenters claimed that such
 an approach is supported by three
 considerations: (1) It makes date
 comparisons with those segments of the
 Subtitle C regulated community most
 relevant to the current rulemaking.
 therefore the results will not be
 arbitrary: (2) it reflect* the technical
 feasibility of complying with subtitle C
 regulations, and thenfon is consistent
 with EPA's original concept of the
 special waste exemption: and (3) by
 limiting the overlap between the
 regulated and exempt communities to
 one percent, it allows for unusual
 outliers while still narrowing the bounds
 of the exemption as Congress and the
 Court in EOF n intended.
   These commenters went on to state
 that a volume criterion for liquids
 substantially greater than the proposed
 50.000 metric tons per year is supported
 by date from the 1985 Biennial Report
 and other EPA date. They stated that
 the average non-commercial surface
 impoundment TSD owner/operator
 managed at least 922.000 metric tons of
 hazardous waste in surface
 impoundments during 1986. while the
 average non-commercial underground
 injection well facility managed  at least
 403.199 metric tons of hazardous waste

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 36608    Federal Register / Vol. 54. No. 169 / Friday. September 1. 1988  /  Rules and Regulations
 during 1986. Data on Alabama,
 Kentucky, I-nytfiana, South Carolina,
 and West Virginia indicate that waste
 was generated in quantities over several
 hundred thousand metric tons, generally
 on-site at the average State TSD.
   EPA agrees with the commenters that
 currently available data on waste
 management at subtitle C facilities
 support a higher high volume criterion
 for liquids than for solids. However, the
 data from the Biennial Report were not
 adequate for the type of analysis EPA
 believed appropriate. To address these
 comments and to develop a specific cut-
 off value, the Agency used  data from
 EPA's National Survey of Hazardous
 Waste Treatment Storage, Disposal.
 and Recycling Facilities (TSDR), which
 contains detailed information about
 volumes and specific types of wastes
 generated and managed at  Subtitle C
 regulated facilities during calendar year
 1986. These data allowed EPA to
 conduct a waste stream-level analysis of
 current management practices and
 hazardous waste volumes managed at
 facilities regulated under subtitle C of
 RCRA. Copies of the data used in the
 analysis are available in the docket
  As discussed more fully below, the
 Agency examined individual waste-code
 data for waste streams entering Subtitle
 C landfills to develop a revised criterion
 for solid/sludge materials, and for waste
 streams entering wastewater treatment
 processes, surface impoundments, and
 injection wells to develop a cut-off value
 for liquid waste streams. The final
 criterion values reflect the largest single
 waste code managed at the 95th
 percentile of the Subtitle C  facilities
 employing these hazardous waste
 management techniques.
  On the other side of the issue, several
 commenters stated that EPA's
 suggestion to use a separate high volume
 criterion for aqueous liquid wastes is
 inappropriate and that the Agency
 should apply the same high volume
 criterion to liquid and solid waste
 streams from mineral processing
 operations. They based this comment on
 the assertion that then is no
 justification for a separate aqueous
 waste criterion within RCRA. the Bevill
 Amendment, the Simpson Amendment
 the legislative history, or die Agency's
 descriptions of the special waste
 concept The commenters also
 contended that the disposal of aqueous
wastes is already controlled for the most
part under other programs such as the
National Pollution Discharge
Elimination System (NPDES) of the
Clean Water Act and therefore, a
separate volume cut-off is not
 warranted. These commenters also
remarked that a higher liquid waste cut-
off would cause many facilities to lose
exclusionary status and be regulated
under Subtitle C for solids as well as for
wastewater.-
  The legislative history clearly
identifies amenability to management
under subtitle C as a primary criterion
for defining special wastes. The Agency
believes that  because liquid and solid
wastes have very different
characteristics and are managed with
very different processes, defining a
separate high  volume cut-off for liquids
and solids is appropriate and necessary
to fully capture the differences in
manageability of different types of
waste streams. The fact that some waste
streams may lose their excluded status
is not a determining factor in
establishing either the basis for or the
specific values of a high volume
criterion.
  A commenter  claimed that EPA
should not include liquid waste streams
in the basis of comparison for
developing the high volume threshold
value for solid wastes. This commenter
also asserted that to determine the
threshold value, EPA must compare the
volumes and treatability of mineral
processing wastes with the volumes and
treatability of those wastes which are
actually regulated pursuant to subtitle C.
  EPA agrees. In today's rulemaking,
EPA has proposed separate high volume
criterion values for solid and liquid
wastes that were derived through
separate examination of newly
available TSDR  survey data on solid
and liquid wastes currently managed
under subtitle C.
  A commenter  suggested that
application of different criteria to solid
and liquid waste streams is
unwarranted, because wastewater is
commingled with both suspended and
dissolved solids: these are not
differentiated in the h«n«ning process.
  The Agency disagrees, because the
dissolved
and
             suspended solids an not
considered separate Bevill solid wastes
unless and until they have been
precipitated or otherwise separated
from the wastewater and an managed
as a distinct waste stream. Candidate
Bevill wastes that an in liquid form at
the time of generation will be compared
to the threshold for liquid wastes and
those that an in solid form will be
compared to the threshold for solid
wastes. A solid/sludge residual from a
high volume liquid waste will ntain
Bevill status if it is high volume. Lev
pastes the high volume test for solid
discharged from mining operations to
waters under NPDES permits is
incorrect in many cases. They
maintained that the wastewater. which
is commingled with solids, is
evaporated. In addition, then is often no
surface water in the vicinity of the
mineral processing plants.
  EPA has never made or articulated
any assumptions about the final
destination of wastewaters from mining
and mineral processing operations and.
in fact asserts that the destination of
treated wastewaten is irrelevant to the
issue of determining Bevill status. A
waste stream's Bevill status pertains
only to how the waste is generated prior
to disposal, not the manner in which it is
finally disposed. The Agency is fully
aware that wastewaters from mining
and mineral processing operations are
commonly evaporated or recycled after
treatment
  One commenter asserted that EPA
failed to understand that costs to
manage wastewater escalate with
impoundment size, thus regulation under
subtitle C would burden facilities that
manage wastewater in surface
impoundments. For this reason, they
maintained, EPA should use a less
rigorous criterion than the 50,000 metric
ton cutoff for liquid wastes.
  While it may be true that the cost of
waste management in surface
impoundments increases in a non-linear
fashion with the size of the
iitipminHmant, fj«*« from the TSDR
survey indicate that facilities currently
manage up to 44 million metric tons of a
single hazardous waste stream in RCRA
permitted surface impoundments, and
that scons of facilities manage more
than 50.000 metric tons of hazardous
wastewater in surface Impoundments
annually. Then an 55 facilities from the
TSDR date set that managed over
1,0004)00 metric tons of liquid hazardous
waste in 1986. (A list of these facilities is
contained in the docket to today's rule.)
Many of these facilities use surface
impoundments for one or more of their
treatment processes. Across all faculties
          ijflh volume hazardous waste*
  Another commenter asserted that
EPA's assumption that wastewater is
                              surface impoundments have been
                              employed for virtually all treatment
                              processes. These data demonstrate that
                              m^M8^Tftffirt ID 8QXTflLG9 iIHPOmiOTPff^t0
                              under subtitle C regulations is feasible
                              for volumes far greater *^Mn 50,000
                              metric tons.
                               Several comments specifically
                              addressed EPA's suggestion of 1.5
                              million metric tons as • liquid waste cut-
                              off. One commenter assarted that a 1£
                              million metric tan threshold is arbitrary
                              mnA buftMitmtfty high mnit (uggested
                              250,000 metric tons aa an alternative

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           Federal Register / Vol. 54. No. 169 / Friday. September 1. 1989  /  Rules and Regulations     36609
 value. Another commenter contended
 that EPA based its 1.5 million metric
 tons per year aqueous waste threshold
 on volumes of wastewater treated by
 other industries and that it is not certain
 that the mineral processing industry
 would produce the same volumes.
 Similarly, a commenter claimed that the
 1.5 million metric ton threshold was
 based on unreasonable comparisons to
 wastewater streams that require little or
 no management The proposed 1.5
 million metric ton standard cannot be
 technically supported, they stated.
 because it was developed with reference
 to materials management practices that
 do not reflect the technical feasibility of
 applying Subtitle C controls to mineral
 processing wastes. Finally, one
 commenter contended that the total
 quantity of liquid waste streams
 routinely managed by industry is
 substantially lower than the proposed
 1.5 million metric tons, therefore
 implementing this criterion would
 improperly exclude numerous aqueous
 waste streams from Bevill and the
 required study.
   The Agency disagrees with the
 commenters on the importance of
 comparing mineral processing wastes
 only to identical wastes. The facilities in
 the TSDR data set represent a wide
 variety of industrial sectors and
 production processes, and generate a
 wide variety of waste streams. Waste
 streams examined in the analysis can hi
 no way be construed to require "little or
 no management" Collectively, these
 facilities employ virtually all available
 waste management technologies, and
 commonly employ wastewater
 management techniques such as
 equalization, neutralization, metals
 precipitation, and coagulation/
 fiocculation that an used to manage
 many, if not most wastewater streams
 generated in the mineral processing
 industry. The docket document for
 today's rule referenced above also lists
• wastes generated and wast*
 management technologies employed for
 55 facilities managing "
-------
 36610     Federal Register / VoL  54. No.  169 / Friday, September 1, 1989 / Rules  and Regulation*
  With respect to the commenter who
asserted that EPA should aggregate
mineral processing waste data because
the data used to establish the volume
criterion were aggregated, the subtitle C
data used in support of today's
rulemaking is sufficiently detailed to
allow EPA to conduct a waste stream-
level analysis of subtitle C waste
management Thus, there is no
inconsistency in level of aggregation
between the data used to develop the
revised high volume criterion and the
waste streams to which it has been and
will be applied.
  The Agency also received comments
from representatives of individual
mineral processing sectors about
specific waste streams.
  One commanter claimed that EPA's
proposal to segregate waste streams into
individual segments within a process is
artificial and impractical. They
maintained that this segregation would
result in costly changes without
significant environmental benefit
Because NPDES regulations require
extensive recycling efforts and large
holding ponds, it would be impractical
to segregate waste streams. They
asserted that the regulatory controls
required by the proposed rule and by
NPDES regulations would result in
substantial conflict
  Another commenter stated that
recirculated process water must be
aggregated with phosphogypsum in
making high volume determinations.
Because water management at
phosphate fertilizer plants uses an
integrated system, they claimed, it is
illogical and impractical not to aggregate
phosphate process water for purposes of
regulation. In addition, the waters
recirculated throughout the phosphate
rock processing facility are chemically
similar at virtually every point
  The Agency finds these arguments
unperauasive. As discussed above and
in the April 17 NPRM. it is most
appropriate to consider wastes on an
individual basis for the purpose of
determining Bevill status. The fact that
wastes are currently commingled at
some point hi the production irrelevant
to this determination, as are site-specific
permit requirements. Sector-specific
waste management practices applied to
Deviil mineral processing wastes will be
evaluated for the Report to Congress.
  A third commenter asserted that
Congress considered phosphate
processing wastes in the aggregate when
it identified them as subject to the Bevill
Amendment in the 1978 and 1979
documents, thus the Bevill Amendment
requires aggregation of phosphate
processing wastes. They maintained
lha» management of aggregate waste
streams is essential to comply with
environmental requirements and has not
been undertaken to take advantage of
the Bevill Amendment They further
claimed that in its past studies, EPA
also has recognized that phosphate
process water must be evaluated on an
aggregate basis. They concluded that
considering phosphate processing
streams on an individual basis will
provide no meaningful protection of
human health and the environment
  The Agency rejects the argument that
one sector should receive special
treatment for historical reasons. EPA
believes that all commodity sectors and
facilities should receive equal treatment
in the determination of Bevill status.
Moreover, as discussed at length in the
October and April proposals, EPA
believes that in a general sense,
aggregation is inappropriate for
considering both the volume of and
hazard posed by mineral processing
wastes. The Agency discerns nothing
unique about phosphate rock processing
that would justify differential treatment
  Other commenters asserted that the
legislative history of the Bevill
Amendment directs EPA to study all
wastes from the mineral processing
industry, including all metallurgical
processing wastes whose fundamental
purposes are the same. For this reason.
they maintained, primary zinc iron
residues should be aggregated and
treated similarly to metallurgical
residues from other nonforrous metal
industry sectors. They appealed to EPA
to consider mat wastes from the various
zinc processing operations may be
identified by different names depending
on whether the facility uses
pyrometaUurgical or hydrometallurgical
techniques, and if hydrometallurgical.
by the specific leaching process
employed. They maintained that zinc
processing residues which are
essentially identical, including zinc lean
slag, goethite, jarosite, hematite, and
simply "iron residue," should be
aggregated.
  While the Agency understands the
argument made by the commenter that
the wastes mentioned are all impurities
from the production of zinc, EPA has
determined that the wastes arise from
fundamentally different production
processes (e.g^ pyrometaUurgical versus
hydrometallurgical). It has. therefore,
concluded that the wastes are not
sufficiently similar to warrant
aggregation. In addition, as discussed
above, the Agency disagrees that the
Bevill Amendment requires EPA to
study all mineral processing wastes for
the Report to Congress regardless of
volume or hazard.
  A commenter stated that sludge from
beryllium ore teaching should remain   .
within the Bevill exclusion. Prior to
adding the sludge leaching step to
enhance recovery of beryllium,
materials now discarded as part of the
low volume sludge leaching stream were
discarded with the high volume barren
filtrate stream. For this reason, they
concluded, separating these waste
streams for the purpose of determining
high volume is inappropriate.
  EPA disagrees with this argument. If
the waste streams are separable, they
are evaluated individually with respect
to volume and hazard. The question of
which other stream(s) might be
comanaged with a given stream at any
point in time is entirely irrelevant to
these determinations.
4. Alternative Components/Application
of the High Volume Criterion
  In the April 17 NPRM, EPA proposed
to apply the high volume criterion as the
average annual facility generation rate
across all facilities generating the waste
streams in question.
  Several commenters stated that the
high volume criterion should allow
exemptions for specific facilities
generating over SOOOO metric tons of
waste per year even if the industry
average is less than the 50,000 metric ton
threshold. One commenter contended
that the Agency should recognize that
meeting the 50400 metric ton threshold
would qualify a waste for study, not
necessarily grant exclusion from subtitle
C regulation. They also believed that
using an avenge generation  rate across
a sector inaccurately represents the
feasibility of real world management
practices. The use of sector-wide
averaging, they claimed, only serves to
reduce EPA's burden and does not
address the waste management
problems faced by industry.
  Another commenter asserted that
EPA's rationale for changing the high
volume criterion is illogical They
claimed that EPA's view that it is
discriminatory to allow a facility which
generates large volumes of waste to
qualify for an exclusion is counter to the
entire basis for the Bevill Amendment
The commenters Tilff^ argued that EPA
should not subject a faculty  to
inappropriate requirements simply
because some similar but smaller
operations could not meet the Bevill
criterion and could comply with subtitle
C. They maintained that it would be
much more discriminatory to impose the
full panoply of subtitle C controls on a
facility which cumot economically or
technically comply with them. They
further maintained that even the

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                      Federal Register / Vol. 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations     36611
'
flexibility allowed for Urge volume
generators under RCRA 30M(x) would
be lo»t under EPA'i proposal
  The Agency finds this argument
unpersuasive and. therefore, maintains
that a sector-wide average facility
generation rate is the most equitable
way to define high volume mineral
processing wastes. As stated in the
April 17 NPRM. allowing any individual
facility to qualify for the exclusion while
requiring other, smaller facilities in the
same sector to comply with subtitle C
regulations would be unfair to the
smaller facilities. Alternatively,
excluding a waste stream on a sector-
wide basis because of the large waste
volumes generated by one facility might
result in the retention within the
exclusion of wastes that clearly are
amenable to subtitle C controls at most
facilities. As stated in the April NPRM.
the Agency believes that the sector-wide
average per facility generation rate
represents the best alternative between
these two extremes.
  In the October 20.1988 NPRM. the
Agency solicited comment on the use of
a second test for the high volume
criterion; this test was based on industry
sector-wide waste stream generation.
This test was dropped for the April 17
NPRM.
  Several commenters contended that
EPA should retain the industry-wide
criterion because it is a useful
alternative for volume determinations.
One commenter maintained that the
Court of Appeals ordered EPA to draft
criteria for Bevill wastes consistent with
the Agency's historic definition of
"special waste" and that the industry-
wide criterion is an integral aspect of
the Bevill mandate.
  The Agency maintains that average
waste generation per facility is a better
indicator of the amenability of a waste
to management under subtitle C rt»»"
industry-wide waste generation. As
noted in the April 17 NPRM. this belief
is based largely on the fact that moat
large volume mineral processing wastes
are managed on-site. EPA notes that the
U.S. Bureau of Mints supports EPA'*
position on this issue. EPA also note*
that the decision to •Uminata1 *Wf
criterion affected only one waste stream
of ail those proposed in October or April
or otherwise nominated (lime kiln dust).
Lime kiln dust is generated by a
p»inning operation and. as rilnnissffi
further below, is a benefication waste.
Therefore, elimination of the criterion
has no practical effect
  EPA also received comments on the
idea of using a ratio of waste volume
generated to quantity of final product as
an additional or alternative volume
criterion. This was an idea on which
EPA had solicited comments in the
October 20 NPRM but which it decided
not to employ hi support of the revised
high volume criterion published in4he
April 17 NPRM. Many commenters
advocated using such a ratio instead of
the average waste generation rate which
EPA has used as the sole high volume
criterion since the April 17 NPRM.
  The Agency wishes to make clear the
fact that it has never considered using a
waste to product ratio as either a sole or
alternative high volume criterion. At one
time, EPA considered using a ratio in
combination with the average
generation rate as a high volume
criterion. Following further analysis,
EPA concluded that no  added analytic
power was provided by the ratio.
because it haa no relevance to the
feasibility of managing  a waste stream
under subtitle C. For a full explanation
of EPA's reasoning, refer to the April 17
NPRM (54 FR15329). EPA has
encountered no compelling arguments  in
any of the numerous comments on the
October or April proposals that would
support a change in the Agency's
position with respect to the ratio
concept
  Other comments addressed units of
measurement One commenter
maintained that EPA should adjust its
high volume criterion to take into
account a waate's density. "High
volume," they asserted, refers to the
space a waste occupies, not its weight;
the space a weight occupies is more
relevant than its weight in determining
its amenability to Subtitle C
management
  EPA disagrees with this assertion and
continues to believe that mass is the
most relevant and workable indicator of
the manageability of a waste stream.
Because the physical space consumed
by a material can vary  over time based
on the way in which it is handled (e.g..
even "solid" materials can be
compacted or undergo particle size
reduction). EPA believes that mass is a
more stable, and thus, more appropriate
basis on which to develop and apply the
high volume criterion. Additionally,
mass is the most practical measure for
evaluating waste quantities; virtually all
other data on hazardous waste collected
by EPA is measured in metric tons.

5. Type of Waste Used as the Basis of
Comparison                       ^
  In the April 17 NPRM. EPA based the
high volume cut-off of 50400 metric tons
on volumes of waste generated and
managed at Subtitle C  regulated
facilities. Congress intended the Bevill
exclusion to cover only those waste
streams that are generated in such
quantities as to be potentially
 unmanageable under subtitle C
 regulations. For this reason, the Agency
 feels strongly that comparison of
/mineral processing waste volumes with
 those of wastes managed under Subtitle
 C controls for the purpose of
 determining Bevill status is wholly
 appropriate and. in fact the only
 appropriate analytical basis for
 developing the high volume criterion.
   One commenter representing mineral
 processing industry interests maintained
 that the high volume criterion should be
 set at a level that reflects the proven
 technical feasibility of onsite disposal of
 similar wastes subject to Subtitle C
 regulation and that the threshold value
 should be based solely upon
 disaggregated waste streams.
   The analysis undertaken by EPA in
 support of today's rulemaking reflects
 both of these concerns.
   Several commenters objected to EPA's
 refusal to use the lowest of extraction
 and beneficiation waste generation
 rates to establish the high volume
 threshold, especially in light of the
 Agency's recognition that some
 extraction and beneficiation wastes are
. generated in volumes less than 50.000
 metric tons per year. Another
 commenter maintained that refusal to
 use the lowest generation rate of the
 candidate Bevill wastes seemed in
 direct contrast with EPA's statement in
 the April NPRM that the generation
 rates of the six recently listed smelting
 wastes should serve as a lower bound
 for the high volume criterion because
 the six wastes are generally accepted as
 low volume wastes. An additional
 commenter asserted that EPA's selection
 of 50,000 metric tons per year as the high
 volume criterion based on comparison
 to generation rates of the extraction and
 beneficiation industry is arbitrary.
 without any factual basis, and
 improperly removes most mineral
 processing wastes from the study
 required in RCRA 18002.
   These comments represent a
 distortion of EPA's reasoning in the
 April 17 NPRM. At that time,  the Agency
 asserted that wastes from extraction
 and beneficiation were typically
 generated in volumes orders of
 magnitude greater than most mineral
 processing wastes and therefore would
 be inappropriate to use as a lower
  bound for the volume cutoff.
  Subsequently, the Agency did not base
  the volume cutoff solely on generation
  rates of extraction and beneficiation
  wastes but used this information as a
  "reality check" for the volume threshold
  selected. The fact that only a small
  number of extraction and beneficiation
  wastes are below the cut-off does not

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nS612     Federal Register / Vol. 54. No.  160 / Friday. September 1. 1989 / Rules and Regulations
invalidate the concept and in fact
suggests that EPA's volume cut-off value
is an appropriate measure of special
waste status under real-world
conditions.
  One Commenter asserted that the fact
that EPA received date on management
of hazardous wastes biennially refutes
the Agency's contention that it had to
compare mineral processing wastes with
aggregated subtitle C wastes because of
insufficient information. They claimed
that the 1985 survey (National Report of
Hazardous Waste Generators and
Transportation, Storage, and Disposal
Facilities Regulated under RCRA)
showed an average generation rate per
waste of 12,487 tons per facility and
suggested that this figure would be more
appropriate as a basis for comparison.
  The Agency agrees that a waste-by-
waste evaluation is the best method for
developing the high volume criterion,
and has been able to use even more
recent waste code-level  date than that
suggested by the commenter to develop
the final criteria established by today's
role. The Agency disagrees, however,
that the average generation rate is the
appropriate value to use as the volume
cutoff. As noted in the April 17 NPRM,
the high volume criterion should exclude
from subtitle C regulation only
potentially unmanageable waste
volumes, not average waste volumes.
  EPA received several  comments on
the use of commercial subtitle C
facih'ties as the basis of  comparison.
While several commenters stated that
this is an inappropriate basis of
comparison, other commenters
supported the inclusion of commercial
facilities in any date base addressing
subtitle C waste management to be used
as a basis of comparison.
  Commenters favoring  the use of
commercial facilities objected to EPA's
rationale that inclusion of date from
commercial facilities is inappropriate
because the incentives and costs/
benefits from waste management differ
for commercial facilities. They asserted
that EPA's hazardous waste regulations
apply to both commercial and non-
commercial facilities; thus, the same
incentives for compliance with
regulations to avoid fines and/or
imprisonment exist for all hazardous
waste handlers. They also asserted that
EPA has not demonstrated a
fundamental difference in incentives for
managing large volumes between
commercial and non-commercial
facilities. They maintained that because
commercial facilities must compete for
clients, they do not have unlimited funds
to comply with regulations. Finally, the
commenters asserted that any difference
i--. incentives does not address the
                                      fundamental concern of the volume
                                      criterion which is the technical and
                                      institutional feasibility of complying
                                      with subtitle C requirements.
                                      ^feasibility, they added, should not be
                                      based upon a cost/benefit analysis
                                      which has no foundation in the statute
                                      or in the special wastes concept
                                       These commenters also asserted that
                                      data indicate that in States containing a
                                      large number of TSOs, most TSDs are
                                      not commercial facilities. They added
                                      that TSDs that only manage waste on-
                                      site, manage the largest quantity of
                                      hazardous waste, indicating that the
                                      average quantity of hazardous waste
                                      managed per TSD is greater for non-
                                      commercial faciUties than for
                                      commercial facilities. They concluded
                                      that these data disprove the theory that
                                      commercial facilities should be better
                                      able to manage substantial quantities of
                                      hazardous waste than on-site TSDs.
                                       While EPA finds many of these
                                      arguments unpersuasive, particularly
                                      those addressing the economic
                                      incentives to operate commercial versus
                                      non-commercial subtitle C waste
                                      management facilities, the Agency does
                                      agree that technical feasibility is the
                                      fundamental issue addressed by the
                                      volume criterion, and has, accordingly,
                                      included commercial subtitle C facilities
                                      in the data base used to develop the
                                      revised high volume criterion described
                                      below.

                                      6. Actual Threshold Value
                                       In the April 17 NPRM, the Agency
                                      proposed 50,000 metric tons as the high
                                      volume cutoff. This value was to be
                                      applied to the average generation rate of
                                      each candidate waste stream.
                                      Comments on the actual value of the
                                      high volume cutoff were mixed, with
                                      some commenters arguing that the value
                                      was too low and others that it was too
                                               liters arguing that the
                                      proposed value was too low presented
                                      evidence from several sources
                                      demonstrating that some regulated TSDs
                                      manage hazardous waste in volumes
                                      greater than 50,000 metric tons. They
                                      presented data from the 1985 National
                                      Biennial Report stating that in two of the
                                      ten EPA Regions, the average quantity
                                      of hazardous waste managed at each
                                      TSD substantially exceeded 50.000
                                      metric tons per year. The commenters'
                                      analysis of these data also indicated
                                      that the top 50 and 100 generators of
                                      hazardous waste handle waste in
                                      quantities 78 times greater and 42 times
                                      greater, respectively, than the threshold
                                      quantity proposed by EPA.
                                        The commenters also noted that of the
                                      nine listed hazardous waste streams
                                      EPA used for comparison to mineral
 processing streams in the October
 proposal, four are generated in
 quantities larger than 50,000 metric tons
 per
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          Federal Register /  Vol.  54, No. 169 / Friday, September 1. 1989 / Rules and Regulations     36613
there should be at least a ten percent
overlap between the Bevill exempt
wastes and the subtitle C regulated
community, and 50,000 metric tons is
beyond the level of technical feasibility
for wastes in solid form.
  Several conunenters stated that the
Agency arbitrarily selected 50,000 metric
tons per facility per year as a volume
threshold and provided no justification
for the selection of that value. A
commenter also maintained that EPA
should not use this very crude threshold
value as a screen to perform a technical
feasibility analysis for which it does not
have sufficient information and support
  The volume criterion proposed in the
April 17 NPRM was based on the best
data EPA had available at the time and
was therefore not arbitrary. However,
since that time, better data have become
available and have been used by the
Agency in support of the volume
criterion established by today's final
rule, in part to respond to these
criticisms.
  A commenter stated that there should
be at least a ten percent overlap
between the universe of Bevill
processing wastes and subtitle C wastes
and that the 50.000 metric ton threshold
does not provide the necessary 10
percent overlap. EPA stated that the
number of facilities that manage more
than 50,000 mt/yr is "well under ten
percent of the total." but the Agency
failed to place into the administrative
record data to support this claim. The
commenter contended that the Agency,
in failing to respond to comments raised
on this issue in the October NPRM. has
effectively denied the commenter an
opportunity to comment fully on the
proposed threshold.
  The Agency does not accept the claim
that data concerning subtitle C waste
management and the development of the
high volume criteria are not publicly
available. The basis for development of
the threshold is described in documents
that may be found in the docket for the
10/20/88 NPRM. The issue la moot
however, because the Agency is today
modifying the volume criterion based
upon updated subtitle C waste
management data, as described below.
  Regarding the appropriateness of a
ten percent overlap between the subtitle
C wastes and the Bevill wastes, in the
April 17 NPRM. EPA allowed a 10
percent overlap between subtitle C
wastes and Bevill wastes to account for
problems with the data used in the
analysis. The Agency never intended to
make the 10 percent overlap a rule for
determining the high volume cutoff. The
data used in the analysis in support of
today's rulemaking are much stronger
than those used before and thus the
Agency believes a five percent overlap
is more appropriate and is supported by
these more recent data.
  One commenter maintained that
while the threshold value might-fae used  '
for aqueous mineral processing wastes,
technical feasibility requires a much
lower threshold for solid mineral
processing waste.
  The Agency disagrees with this
position. The TSDR data indicate that at
least five facilities managing hazardous
waste in solid form routinely manage
45,000 metric tons per year or more of a
single waste stream: this represents
roughly five percent of the facilities
managing hazardous wastes in on-site
subtitle C landfills.
  Several commenters arguing that the
proposed value is too high suggested
lower values ranging from 10,000 metric
tons per year to 30,000 metric tons per
year. One commenter maintained that
EPA should establish a facility average
of no greater than 30,000 metric tons per
year as this would only be slightly lower
than three "acknowledged" Bevill
wastes—zinc extraction wastes, utility
FGD sludge, and utility bottom ash.
Several other commenters stated that
the rate  should be lowered to a 10,000
metric tons per year faculty average as
this threshold indicates "high volume"
compared to facilities producing wastes
that are not classified as special wastes.
  As EPA stated above and hi the April
17 NPRM. the existence of a few Bevill
waste streams with generation rates
below the high volume cut-off does not
invalidate the adopted threshold. The
Agency is not obligated to select a high
volume cut-off besed on the three
"acknowledged" Bevill wastes. As
pointed out by a commenter, on the April
notice, volumes of utility wastes (and by
extension, other Bevill wastes) may not
mineral processing. With respect to the
suggestion of a 10.000 metric ton cutoff,
EPA has not found support for such a
low threshold hi any relevant data
available to the Agency when technical
feasibility is considered as the basis for
the determination.
  Two conunenters stated that EPA
should develop a low volume, low
hazard category. One commenter noted
that many small processing, operations
are effectively managing wastes and
may be significantly affected
economically if subjected to subtitle C
regulations. Another commenter
asserted that then is no need to regulate
aggregate or individual low volume/low
hazard wastes under subtitle C:
regulation under subtitle D would be
more appropriate.
  EPA disagrees.  Congress clearly
intended to exempt only high volume.
low hazard wastes under the Bevill
Amendment Those wastes which are   -.
not high volume may feasibly be
managed under Subtitle C Or Subtitle D
as appropriate. Accordingly, EPA will
not establish a separate regulatory
category for low volume, low hazard
mineral processing wastes.
  One commenter claimed that EPA's
statements regarding the high volume
threshold are contradictory. They noted
that EPA made the following statement
in the November 1979 Draft Background
Document: "due to the obvious
interdependence of u.tse criteria and
the number of factors involved hi
assessing any particular criterion,
quantification of the items is
impossible" (Emphasis in comments
only.) It follows, the commenter
asserted, that the Agency's current
approach in which a given waste stream
generated at much less than 50,000 mt/
yr, and which still poses manageability
problems could be withdrawn from the
Bevill exclusion based only on a
quantified volume criterion, is absurd.
  In 1979. EPA had little experience
with the RCRA program, a limited
understanding of the characteristics of
the regulated community, and
incomplete data on hazardous wastes
and waste management Since that time.
EPA has dramatically improved each of
these initial shortcomings and, thus, its
ability to quantify and articulate the
special waste criteria.
   Finally, one commenter suggested that
lowering the volume threshold would
not pose any threat to the environment
because no matter what the outcome of
the section 8002(p) studies, the waste
must be regulated either under subtitle
C, the provisions of section 3004(x), or
subtitle D.
   While EPA believes that there is some
merit to this argument as discussed
more fully below, the legislative history
and direction from the Court dictate that
only special wastes are eligible for
exemption under Bevill and examination
in the 8002 studies.
7. Application of the Cutoff Value to
Waste Streams
   Several commenters objected to the
process of formulating national average
volume determinations based only upon
 data submitted for one facility, arguing
 that it is arbitrary and capricious. These
 commenters also stated that EPA should
 verify all self-reported data submitted
 by the mineral processing companies
 because of the incentive for firms to
 inflate their waste generation rates and
 thus remain exempt They asserted that
 EPA routinely discovers inaccurate sr
 reported data hi other instances, even

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 36614
Federal  Register /  VoL 54. No. 168 / Friday, September 1. 1989 / Rules and Regulations
 when those data wen submitted under
 oath.
   EPA did not have the time or
 resource* to measure candidate waste
 streams at affected facilities. In
 addition. EPA had a very limited amount
 of time in which to collect the additional
 data needed to fully determine the Bevill
 status of each candidate waste stream.
 In order to propose the regulatory status
 of several waste streams and provide
 appropriate opportunity for notice and
 public comment in accordance with
 EPA's Court-imposed schedule, the
 Agency had to rely on self-reported
 volume data. The self-reported data will
 be verified by examination of new data
 from the National Survey of Solid
 Wastes from Mineral Processing
 Facilities. Waste streams that the survey
 data indicate do not meet the high
 volume criterion will be proposed for
 removal in the September 15,1989
 proposed rule addressing the status of.
 wastes that have been conditionally
 retained within the exclusion. Facility
 operators  completing the mineral
 processing survey are subject to section
 3007 penalties for submission of false
 data.
  Several commenters objected to EPA's
 proposed use of the highest average
 generation rate over a five year period
 (1983-1988) as the value for comparison
 with the volume criterion. Several
 commenters expressed concern that this
 would ignore  the possibility that waste
 generation across the years has been
 reduced due to improved waste
 management processes. They felt  that
 EPA should not ignore substantial waste
 reduction  trends, when the existence of
 those trends could remove the eligibility
 of the waste from the Bevill exclusion.
These commenters suggested, instead,
 that EPA base volume determinations
upon the lower of either the average
generation quantity from 1982-47 or the
 average generation quantity for calendar
year 1987. This method, they asserted.
would allow EPA to take into account
both waste reduction trends and
variations in market conditions.
  Congress intended to exclude only
those wastes that are generated in
volumes that are potentially
unmanageable under Subtitle C The
Agency believes that the highest
average generation rate for any year
between 1983 and 1988 is a better
indicator of potential difficulty in
managing  a waste under Subtitle C than
the method proposed by the commenter
because it allows for changes in waste
 generation rates caused by fluctuations
 in commodity markets. The method
 suggested by the commenter is arbitrary
 and would punish sectors that might  .
                            have had low waste generation rates in
                            any single year during the most recent
                            five year time period due to poor
                            economic conditions rather than waste
                            minimization efforts as implied by the
                            commenter.
                              Between the October 20.1988 NPRM
                            and the April 17.1989 NPRM. EPA
                            shifted the five year period for which
                            EPA will consider waste generation
                            rates from 1982-1987 to 1983-1988 so
                            that it could base its decision on the
                            most recently available data. Several
                            commenters expressed concern that the
                            shift in the "window" will allow new
                            waste streams to become eligible for
                            inclusion into the Bevill exclusion. They
                            maintained that the Agency should not
                            allow further opportunities for waste
                            generators to provide new  data.
                              The Agency maintains that, in the
                            interest of treating all affected firms
                            equally, any mineral processing wastes
                            that meet the definition of a special
                            waste should be included in the Report
                            to Congress, even if the key information
                            about that waste stream came from
                            1988.
                              The Agency rejects the argument of
                            one commenter that EPA should use
                            production data from all facilities
                            producing chrome processing wastes in
                            any year during the period 1983 through
                            1988. irrespective of whether any such
                            facility is still operating. Because the
                            Agency does not impose requirements
                            retroactively, it would be inappropriate
                            to use past data from facilities that are
                            no longer hi operation to develop
                            regulations. Therefore, exclusion from
                            Subtitle C regulation under the Bevill
                            Amendment will be based only on
                            waste volumes generated at active
                            facilities. For additional detail on the
                            EPA's policy not to impose regulatory
                            requirements retroactively, see section n
                            nt ihim
                            D. The Definition of Mineral Processing
                              In the preamble to the October 20.
                            1988 proposed rule and again in revised
                            form in the April 17.1989 NPRM. EPA
                            provided criteria for defining and
                            identifying wastes from on and mineral
                            processing operations. These criteria
                            requin that all wastes qualifying for
                            exclusion under the Bevill Amendment
                            originate from a mineral processing
                            operation as defined by the following
                            elements:
                              (1) Excluded Bevill wastes must be
                            solid wastes as defined by EPA.
                              (2) Excluded solid wastes must be
                            uniquely associated with mineral
                            industry operations.
                              (3) Excluded solid wastes must
                            originate from mineral processing
                            operations that possess all of the
                            following attributes:
  a. Follow beneficiation of an ore or
mineral (if applicable);
  b. Serve to remove the desired
product from an ore or mineral, or from
a benefidated ore or mineral, or
enhance the characteristics of ores or
minerals, or benefidated ores or
minerals;
  c. Use mineral-value feedstocks that
are comprised of less than 50 percent
scrap materials;
  d. Produce either a final mineral
product or an intermediate to the final
product and
  e. Do not combine the product with
another material that is not an ore or
mineral, or benefidated ore or mineral
(e.g., alloying), do not involve
fabrication or other manufacturing
activities, and do not involve further
processing of a marketable product of
mineral processing.
  (4) Residuals from treatment of
excluded mineral processing wastes
must be historically or presently
generated and must meet the high
volume and low hazard criteria in order
to retain excluded status.

1. Excluded Bevill Wastes Must be Solid
Wastes as Defined by EPA
  EPA proposed hi the October NPRM
and confirmed in the April NPRM that it
will use the definition of solid waste
codified at 40 CFR 261.2 to identify
materials that are eligible for
consideration as special wastes, stating
that nothing in the regulatory history of
the Bevill Amendment indicates that the
Agency is expected to or should apply a
definition of solid waste that is different
than that applied throughout the RCRA
program.
  EPA received a number of comments
relating to the issue of when and if the
materials under consideration in this
rulemaking can be RCRA "solid wastes"
when they are destined for recycling.
These comments were of three types.
Most dealt broadly with the overall
question of the Agency's authority to
classify materials destined for recycling
as solid wastes. A few comments were
more specific, mentioning types of
materials involved. Finally, another
group of comments dealt in detail with
types of materials (principally iron and
steel slag) that an recycled.
  Before responding to these comments,
the Agency first notes that this issue  is
without direct effect on persons
managing materials that EPA has
determined remain Bevill wastes
because they satisfy the high volume/
low hazard criteria, EPA will consider
such materials further as part of the   •
section 8002 study, but there are no
regulatory consequences on persons

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           Federal Register / VoL 54, No. 189  /  Friday,  September 1.  1989 / Rules  and Regulations     36615
managing such materials. (EPA notes
further that it is directed to study the
"utilization)" of mining wastes.
indicating some expectation that
examination of recycling practices
would be part of the Bevill study. RCRA
section 8002(p)J
  There may be regulatory
consequences for materials that the
Agency determines were improperly
classified under previous interpretations
of the Bevill amendment Such materials
are analogous to other wastes newly
brought into the subtitle C framework.
and thus become subject to all of the
subtitle C regulations. If such materials
are "solid wastes", then they also can
be hazardous wastes subject  to
applicable subtitle C standards.
Comments on this point failed to
identify specific types of materials
affected, however, and so failed to
provide any indication of whether there
are any elements of discard associated
with the recycling activities (such as
land based storage, prolonged retention
times, management in unrelated
faculties, presence of high
concentrations of unrecyclable toxic
constituents not found in virgin
materials that would be processed in
place of the secondary materials, and
other similar elements). It is EPA's
belief, based on prior rulemakings
dealing with recycling, that most of the
materials newly classified as non-Bevill
materials would not be solid wastes
when recycled in metal recovery
operations because they would be
unlisted sludges and byproducts being
reclaimed. Such materials are not
classified as solid wastes (§ 261.2 (c)(3)).
unless they are being speculatively
accumulated. Thus, today's rule would
not have any practical impact on such
materials.
  EPA's responses to the commenters'
specific points are set out below.
  a. With respect to the Agency's
authority to regulate types of recycling
as hazardous waste management EPA
has indicated many times its views on
the extent of its authority. See
particularly 50 FR 638 flan. 4,1985)  and
53 FR 519 (Jan- 8. 1988). EPA does not
subscribe to the view that only thing*
that are thrown away are solid wastes.
Such a reading nullifies explicit
statutory authorities (see RCRA sections
3004(1). 3004(qJ. and 3014). and fails to
 take into account that many recycling
practices an characterized by elements
 of discarding which afford jurisdiction
 under RCRA Subtitle C. The Agency
 also does not believe that anything in
American Mining Congress v. EPA. 824
 F. 2d 1177 (D.C. Or. 1987) is to the
 contrary. Certainly, nothing in the
opinion indicates that the Court
intended to make legal such practices as
the road oiling at Times Beach, Missouri.
or unrestricted burning of hazardous
secondary materials in boilers an3"
industrial furnaces. Yet thisis the direct
consequence of the commenters'
position. However, as noted above, this
issue appears to be only an academic
one in this rulemaking, given the lack of
practical consequences.
  EPA also notes that contrary to the
view of several of the commenters, it is
not finalizing the January 8.1988
definition of solid waste in this
proceeding. EPA is indicating that a .
material need not be thrown away to be
a solid waste, and that recycling
activities can be characterized by
elements of discarding. This has been
EPA's articulated position since the first
major RCRA subtitle rules were issued
on May 19,1980.45 FR 33090-94. Had
commenters provided more detailed
information, EPA could provide more
guidance as to the status of particular
materials. Given the absence of such
comment (with a few exceptions
discussed below), EPA can only
articulate broader principles here.
   b. Some commenters were slightly
more specific about the types of
materials being recycled that should not
be considered to be RCRA solid wastes.
One stated that "intermediates and
inprocess materials" such as copper
matte, blister copper, lead bullion, lead
drosses, and various "secondary
materials" such as flue dust and
wastewater treatment sludges, should
not be considered to be solid wastes
when they are processed to recover
metal values. The specific type of
recycling referred to in this comment is
reclamation. Existing regulations (see 40
 CFR 261.2(c)(3)) state that sludges and
 by-products such as those discussed in
 the comment are solid wastes only if
 they meet one of the hazardous waste
 listing descriptions found at 40 CFR
 261.1 or 261.32. When wastes from
 specific or non-specific sources are
 listed as hazardous. i.e.. are included  in
 40 CFR 261.31 or 281.32. existing waste
 management practices, including
 recycling, an considered hi establishing
 the precise wording of the listing.
 Today's rulemaking would not however.
 add new listings to either 40 CFR 261.31
 or 261.32, and would therefore not affect
 whether materials discussed in the
 comment assuming that they an being
 legitimately recycled, would meet the
 definition of a solid waste. EPA has
 previously indicated that surface
 impoundments used for wastewater
 treatment an not part of recycling
 operations. See. e.g.. S3 FR 35414-5 (lead
impoundment solids). Such units are
generally Intended for purposes of *vaste
treatment and are thus normally subject
to regulation as waste management
units.
  a A number of commenters stated
that iron blast furnace slag and basic
oxygen furnace slag.should not be
considered to be solid wastes when they
are utilized as aggregate substitutes.
EPA notes first that it views these
materials as remaining within the scope
of the Bevill exemption, so there is no
immediate regulatory consequence of
calling these materials solid wastes.
However, EPA is not making a final
determination on the issue of whether
these materials are solid wastes. EPA
will study this issue further as part of
the section 8002 study. Commenters
indicated that even though these slags
are recycled in ways that involve
application to the land (whether directly
or in the form of slag-derived products
like cement and concrete), the slags
have been used for decades
interchangeably with high-grade natural
aggregates, they meet all relevant
commercial specifications for agqregate,
there is a known and profitable market
for all of the slag generated by industry
 (indeed, some blast furnace slag is
 imported to meet domestic demand).
 and the slag appears impervious to
 leaching toxic metals under the EP
 toxicity test EPA has requested further
 information comparing these blast
 furnace slags to virgin aggregates to
 ascertain whether unrecyclable toxics
 might possibly be being disposed by the
 recycling practice. The Agency is
 impressed by the public comments,
 however, and may ultimately determine
 that these slags are not solid wastes.
 Certainly, based on the public
 comments, these slags appear now to be
 a long-standing part of the  commercial
 aggregate market and are commonly
 accepted as meeting all relevant
 commercial specifications.
   A second commenter indicated that
 redrculating process water is not a
 waste. Although the commenter did not
  describe precise details of operation, the
  Agency agrees that normally continued
  use of process water in an industrial
  process does not involve wastewater
  but rather continued use of process
  water. This answer assumes, however,
  that wastewater is not removed from th«
  system to be reclaimed before it can be
  reutilized. In the event that this process
  water is managed outside of a closed-
  loop recycling system, such as in a
  surface impoundment for cooling or
  settling, then the impoundment woul<
  likely be considered a waste

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  36616     Federal Register / Vol. 54. No. 189 / Friday. September 1. 1989  /  Rules and Regulations
  management unit and subject to EPA's
  jurisdiction, as discussed above

  2. Excluded Solid Wastes Must Be
  Uniquely Associated With Mineral
  Industry Operations
    To be excluded under the Bevill
  Amendment, solid wastes must be
  uniquely associated with the mineral
  processing industry. EPA received no
  significant comments either in support of
  or in opposition to this criterion, and
  will continue to require that wastes
  meet this criterion.

  3. Excluded Solid Wastes Must
  Originate From Mineral Processing
  Operations as Defined by Five Specific
  Criteria
    In general, commenters believed that
  the attributes used in the proposed rule
  to define mineral processing were
  acceptable. As discussed in the Appeals
  Court decision that precipitated the
  current rulemaking. EPA is obliged to
  consider whether candidate wastes are
  high volume and low hazard in making
  Bevill mineral processing waste
  exclusion decisions. While these factors
  are, and have always been, the key
  elements in identifying special wastes,
  the distinction between mineral
  processing and nonmineral processing
  wastes is important because Congress
  intended to put within the regulatory
  exclusion only wastes generated as a
  consequence of exploiting a natural
  resource, not wastes from other
  industrial activities, even if both occur
  at the same facility.
    a. Operation must follow
  beneficiation of an ore or mineral (if
  applicable). Processes that use heat to
  change the chemical composition of
  ores and minerals, or benefidated ons
  or minerals, are considered mineral
 processing operations. Heap, dump, and
 in-situ leaching, as well at tank and vat
. leaching, an specifically defined at
 beneficiation operations. Commenters
 addressing the October. 1988 NPRM*s
 beneficiation definition argued mat it
 did not adequately delineate the
 boundary between beneficiation and
 processing. The U.S. Bureau of Mines
 (BOM) commented extensively. «»i«fa"«««fl
 that the October ^^nttion did not
 adequately express EPA's intent that
 leaching be considered a beneficiation
 operation. Therefore, in the April. 1989
 NPRM. EPA modified the proposed rule
 (1) to define heap, dump, in-situ. tank,
 and vat leaching as beneflciation, unless1
 they follow one or more processing
 operations in the production sequence,
 in which case they are considered
 processing operations; and (2) to clarify
 that processing operations use chemical
 reactions, electrolytic techniques, or
 pyrometallurgical/ thermal processes
 (e.&. roasting, smelting, calcining) to
 concentrate or enhance the
 characteristics of valuable constituents
 and, thus, differ from beneficiation
 operations (some beneficiation
 operations employ heat but only to
 remove water).
   Industry commenters addressing the
 April NPRM criticized EPA for, in effect
 narrowing the definition of
 beneficiation, claiming that the Agency
 focused top strongly on chemical and
 physical distinctions when it clarified
 the beneficiation definition. By
 classifying steps such as roasting as
 mineral processing and steps involving
 drying as beneficiation, the Agency's
 definition, they claimed, would result in
 some previously excluded beneficiation
 wastes now being considered
 "processing" wastes potentially subject
 to Subtitle C regulation. They
 complained that EPA has offered no
 explanation for why it has apparently
 decided to eschew previous definitions
 of beneficiation. They contended that
 the shift could cause precious metals
 industries in the United States to suffer
 drastic and unwarranted economic
 impacts. Commenters insisted that the
 Agency address the problems caused by
 its "clarification" of beneficiation and
 processing and suggested the
 alternatives below.
  L Use the Report to Congress
 Definition of Beneficiation. Many
 commenters recommended that the
 Agency abandon the restrictive list of
 beneficiation operations in the NPRM
 and adopt the definition of beneficiation
 found in the 1985 Report to Congress.
 These commenters maintained that this
 definition historically has been accepted
 by the mining industry, adopted by EPA,
 subjected to Congressional scrutiny, has
 withstood litigation in EOF L and can be
 traced back to an even earlier definition
 found in the EPA effluent limitations
 guidelines development document on
 ore »"
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          Federal Register / Vol. 54, No. 169  / Friday. September 1. 1988 / Rules aiid Regulations     36617
autoclaved. or chlorinated are no less
earthen than is raw on. and their
volume remains relatively unchanged.
They noted that if finalized, the April
1989 NPRM could subject tailings or
spent ore from many leaching operations
to subtitle C regulation, even though the
Regulatory Determination of July 3. 1986
stated that these wastes did not require
such regulation. Commenters claimed
that because the near surface precious
metals deposits are being depleted, the
future of the industry lies in the deeper
sulfide zones that produce ores requiring
some pretreatment (I.e., roasting,
autoclaving. and chlorinating) to
effectively yield their metal values. The
Agency must consider, they argued, the
extremely onerous operational
consequences (e.g., requiring parallel
waste units for identical waste streams)
and economic consequences (e.g.,
putting small or marginal mines out of
business) that would result from
maintaining the processing definition in
the most recent proposal; this definition
would, concurrently, yield no significant
environmental benefits. Therefore, the
commenters requested that EPA clarify
that wastes from leaching operations
that pretreat will remain benefidation
wastes excluded from Subtitle C.
Alternatively, they noted, if EPA retains
the definition given in the April notice,
the Agency wUl be required to restudy
gold leaching wastes (gold roaster/leach
wastes would not differ significantly
from the leached ores studied previously
by EPA in the 1985 Report  to Congress)
since they would meet the  high volume
criterion.
  Calcining, the heating of ores to high
temperature without fusion of the
mineral values (generally to drive off
volatile components such as water and
carbon dioxide), also received extensive
comment from commenters who wen
concerned that EPA considered
calcining to be processing. These
commenters suggested that EPA should
limit its clarification of benefidation to
exclude only those heating operations
when die c*Mnt"g gases effect •
chemical change that will facilitate
smelting. Representatives of die western
phosphate processors, in particular.
attacked die inclusion of
phosphate processors. The phosphorus
industry stated mat calcining is
analogous to die calcining employed by
diatomaceous earth producers which is
regulated under subtitle 0 and argued
that a supportable distinction can be
made between metallurgical calcining
and those heating operations found in
the diatomaceous earth and phosphorus
industries.
  iii. Make Other Modifications to the
Beneficiation Definition. As an
alternative to using die RTC definition.
industry commenters recommended
several modifications to the definition of
benefidation.
  • EPA should view benefidation
collectively and functionally, define
benefidation as activities, both physical
or chemical, by which ores and minerals
an prepared for further refinement. An
operation which precedes benefidation
and/or conditions or prepares an ore or
mineral so as to make it more amenable
to benefidation. should also be
considered to be part of the
benefidation operation, regardless of
whether die operation employs physical
or chemical techniques. Removing
impurities and improving quality is a
purpose of benefidation and coincides
with die generally accepted technical
usage of benefidation.
   • EPA should clarify diet wastes from
benefidation operations that follow a
processing step should be considered
benefidation wastes. Therefore, die
Agency should state that any steps
performed after benefidation ends are
processing operations and dial
processing would begin with die last
benefidation activity, not witii die first
processing activity. This delineation
would draw a clear boundary between
benefidation and processing dtat would
reflect "real world" operations better
dian die definition provided in die April
17.1980 NPRM.
   • If die Agency seeks to control
 specific benefidation waste streams, it
 should use die Subtide C -listing"
 mechanism as opposed to redefining
 benefidation.
   iv. Specify Certain Activities at
 Benefidation. In addition to roasting.
 autoclaving. galeming, and leeching,
 processing, claiming that die "^nz<
 drying, agglomeration, and
 concentration functions of calcining—-
 which do not chemically alter die •
 phosphate nor remove valuable
 constituents— meet EPA's definition of
 benefidation end dial die classification
 of phosphate rock Mlrining or drying
 and nodulizing/heating operations as
 benefidation has long been die subject
 of agreement between EPA and die
 many commenters addressed specific
       Eions, recommending diet EPA
       diet certain activities en
       nation operations. Collectively.
 these commenters suggested diet EPA
 adopt e definition of benefidation diet
 induces physical/chemical separation
 processes each es crushing, grinding.
 gravity concentration, magnetic and
 electrostatic separation, flotation.
 pndpitation. amalgamation, ion
 exchange, solvent extraction.
 electrowinning. dissolution.
 chlorination. and agglomeration.
   The following recommendations were
/made by commenters regarding specific
 operations.
   • Electrowinning should be
 considered benefidation and be
 retained under die Bevill exdusion. The
 April 1989 NPRM states that electrolytic
 and other chemical techniques are
 processing, not beneficiation. directly
 and inappropriately contradicting prior
 EPA pronouncements and regulatory
 action on die scope of die beneficiation
 exemption.
   • The carbon regeneration process in
 which activated carbon granules adsorb
 gold from solution should be considered
 benefidation. as these activities
 conclude die leaching process, and
 therefore constitute benefidation.
   • The Agency should specifically
 include dissolution in die list of
 benefidation operations. For example,
 trona wastes produced from die
 "SesquT process an benefidation
 wastes, because die dissolving and
 caldni"g operations associated witii die
 "Sesqui" process only remove insoluble
 tailings wastes and drive off excess
 water and carbon dioxide.
    •  EPA should clarify its definition of
 beneficiation by specifically identifying
 "filtration" and "physical separation" as
 sorting to be included as part of
 benefidation.
    •  The Agency should continue to
 indude agglomeration as benefidation
 and not limit tiiis term to sintering
 because it indudes other processes
 besides sintering, such as palletizing and
    • EPA should define die chlorination
  procedure, used on some carbonaceous
  ores prior to leaching, as a benefidation
  operation, not es processing. The
  chlorination procedure uses an oxidizing
  agent to change die chftmic**
  composition of die on and to enhance
  the leaching operation.
    • EPA should state tiiat die "chloride-
  ilmenite" process used for titanium
  dioxide processing is e simultaneous ore
  beneficiation end chlorination process
  in which benefidation and chlorination
  of raw ilmenite on an inseparably
  combined in die seme process step. EPA
  should confirm its previous positions
  tiiat tiiese wastes an generated froiu a
  beneficiation process.
    After review of dw public comments
  and further analysis, die Agency has
  conduded diet bodi functionally and
  legally, die most appropriate definition
  of benefidation for use in distinguishing
  between beneficiation and processing i»
  the definition used in die December.
  1985 Report to Congress (RTC) on

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3661.8    Federal Register / Vol. 54, No. 169 / Friday. September 1,  1989 / Rules and Regulations
wastes from extraction and
beneficiation of ores and minerals. This
definition was, in him, based upon a
definition provided in the Effluent
Guidelines Development Document
EPA believes that this definition is
consistent with standard industry
practice and use of the term. The RTC
defines beneficiation as "the treatment
of ore to concentrate its valuable
constituents." * While the RTC did not
attempt to articulate a comprehensive
list of beneficiation operations,
procedures or techniques, it did expound
on the definition by describing
beneficiation processes as including
  Physical/chemical separation techniques
such a» gravity concentration, magnetic
separation, electrostatic separation, flotation,
ion exchange, solvent extraction,
electrowinning, precipitation, and
amalgamation." *
In addition, the RTC explicitly includes
leaching operations as an integral part
of the extraction and beneficiation
domain and labels the leachate as a
"beneficiation solution." *
  While this definition serves well as a
foundation for making a distinction
between beneficiation and mineral
processing, the list in the RTC is not an
all-inclusive list of beneficiation
processes and several points of
clarification are necessary regarding
application of this RTC definition to
real-life operations. For example, the
RTC list does not include milling
techniques such as crushing, grinding,
washing, filtration, sorting, and sizing, or
agglomeration techniques such as
sintering, pelletizing, and briquetting
that both industry and EPA consider to
be beneficiation operations. In order to
avoid further confusion, the Agency
wishes at this time to identify other
activities that it considers to be within
the realm of beneficiation. and in
particular to discuss the status of
activities using heat and acid.
  EPA notes here that the definitions
that It has developed for today's rule
represent an attempt to resolve the
issues raised in public comment on the
proposed rules in a reasonable and
even-handed manner. The Agency
recognizes that its course is not the only
one available, but does believe that it
provides the most equitable and
workable approach to a very
complicated set of issues. Furthermore,
while EPA has attempted to develop
consistent and reasonable definitions
  •Ibid-D-l.
  ' Report to Congrete on wnttet from Extraction
•nd Beneficiation of Metallic Orel. Phosphate Rode,
AibeitM, Overburden from Uranium Mining, end
OU Shale, pg 2-15.
  «Ibid, :M8, D-i.
for and distinctions between
beneficiation and processing, the
Agency believes that application of
these definitions must comport with
common sense. In cases where a rigid
application of a definition would result
in an unreasonable outcome, the Agency
has used best professional judgment to
produce an acceptable result.
  Heating steps recognized by EPA as
beneficiation operations are calcining.
and roasting and autoclaving of ores
and minerals in preparation for leaching.
All three are procedures that use heat to
drive off volatiles (e.g., water, carbon
dioxide, sulfur dioxide) without heating
the material above the mineral's melting
point and/or causing fusion (i.e.
liquefying or rendering plastic by
heat *). Operations that  raise the
temperature of the ores or minerals, or
beneficiated ores or minerals, above
their fusion or melting point, I.e., destroy
the physical structure of the ore or
mineral, are considered  processing
operations.
  Calcining is often used to drive off
carbon dioxide in the preparation of a
final beneficiated product (e.g., talc,
gypsum, lime), and for purposes of this
rule is defined as the heating of an ore
or mineral, or beneficiated ore or
mineral to a temperature below the
melting or fusion point, for purposes of
driving off water (including waters of
hydration) and/or carbon dioxide.
  In the minerals industry, roasting
serves primarily to change a sulfide ore
to the oxide form, so that beneficiation
by leaching or other subsequent steps
may be more effectively performed.
Functionally similar to roasting,
autoclaving uses steam to perform
heating activities (e.g.. pretreating
sulfide ore for leaching). For purposes of
this rule, roasting and autoclaving are
considered beneficiation operations if
they are used to remove sulfur and/or
other impurities in preparing an ore or
mineral, or beneficiated ore or mineral,
for leaching. Otherwise, roasting and
autoclaving are defined  as processing
operations. Accordingly, activities such
as roasting sulfide ores in preparation
for precious metals heap leaching are
considered beneficiation, while roasting
ores or concentrates in preparation for
copper, lead,  or zinc smelting is
specifically defined as processing.
  Chlorination is sometimes used prior
to gold leaching operations in a
procedure functionally identical to
roasting and autoclaving (i.e. to change
a sulfide ore to a chemical form more
amenable to leaching). EPA recognizes
  • U.S. Butctu of Mine*. "A Dictionary of Mining.
Mineral, and Related Tenni". Waihington. DC
1972, p. 473.
that this type of pretreatment operation
may be an integral part of leaching
operations, and accordingly, considers
non-destructive chiorination of ores,
minerals, or beneficiated ores or
minerals when used as a pretreatment
step for leaching, to be a beneficiation
operation.
  hi contrast, heating operations such as
smelting (i.e., any metallurgical
operation in which metal is separated
by fusion from impurities ') and fire-
refining (e.g., retorting) are clearly and
have always been considered within the
realm of mineral processing. Here, the
physical structure of the ore or mineral
is destroyed,  and neither the product
stream nor the waste stream(s) arising
from the operation bear any close
physical/chemical resemblance to the
ore or mineral entering the operation.
  A specific exception to the above
categorization system applies when the
roasting/leaching sequence produces a
final or intermediate product that does
not undergo further beneficiation or
processing steps (e.g., the leach liquor
serves as an input to inorganic chemical
manufacturing). In this type of situation,
the Agency believes  that the operation
is most appropriately considered a
processing, rather than a beneficiation,
operation. In the context of this
rulemaking, one candidate Bevill waste
(roast/leach ore residue from primary
chrome ore processing) is affected by
this distinction; EPA believes that this
material is clearly a waste from
processing, rather than beneficiation, of
an ore or mineral.
  Several additional operations employ
heat in combination with various acids.
In EPA's view, some of these operations
constitute beneficiation while others are
processing. The distinction hinges upon
the difference between dissolving,
washing, or otherwise purifying values
contained within a mineral using a
dilute acid solution (beneficiation) and
attacking or digesting (i.e., destroying
the structure of) the ore or mineral, or
beneficiated ore or mineral, using a
strong acid (processing). Acid
dissolution, often accompanied by heat.
is used as precursor  for many
beneficiation operations (e.g.,
precipitation, fractional crystallization,
ion exchange, solvent extraction). EPA
recognizes this as an activity integral to
many beneficiation operations,
regardless of the application of heat or
use of add. For example, EPA
recognizes acid washing and acid
dissolution as beneficiation activities;
concentrated sulfuric acid attack of
titanium- or phosphate-bearing ores is
  • Ibid, pg 1033.

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           Federal Register / Vol 54. No. 180 / Friday. September 1. 1989  /  Rules and Regulations     38619
 considered a processing operation by
 the Agency.
  In considering the functional
 distinctions between benefidation and
 processing using both heat and acid,
 EPA has examined both the range of
 actual practices employed, and the types
 of waste streams that an generated by
 these operations in various mineral
 commodity sectors. In a general sense,
 the lines that the Agency has drawn
 between benefidation and processing
 parallel the common sense differences
 that can be observed between
 benefidation and processing wastes
 generated using other types of mineral
 exploitation techniques. Most
 beneficiation processes, at least those
 immediately upstream from the initial
 processing operation in a production
 sequence, generate high volume solid
 waste streams that are essentially
 earthen in character. Despite the fact
 that valuable constituents have been
 removed, the remaining material is often
 physically and chemically similar to the
 material (ore or mineral) that entered
 the  operation, except that particle size
 reduction has often occurred. Processing
 operations, in contrast generate waste
 streams that generally bear little or no
 resemblance to the materials that
 entered the operation  (with the arguable
 exception of smelting  slags). These
 operations most often destroy the
 physical structure of the mineral.
 producing product and waste streams
 that are not earthen in character.
  This common sense distinction is
 reflected in EPA's definitions of
 benefidation and processing operations
 using heat and add. The benefidation
 operations (e.g., calcining, dissolution,
 roasting in preparation for leaching)
 produce wastes, where applicable, that
 are  essentially earthen and of relatively
high volume. The processing operations
 (e.g^ smelting, add or alkaline
 digestion), on the other hand, produce •
wastes that an not earthen, bear little
resemblance to the materials that
 entered the operation, and an of
relatively lower volume.
  One final benaficiation/processing
issue is the need for an absolute cut-off
between processing and beneficiation, a
need that was questioned by
commenters. EPA continues to hold mat
benefidation. especially as a functional
activity which serves to concentrate the
mineral value, is completed at some
distinct point after which all operations
 are  considered processing. As discussed
hi the April NPRM. the Agency
considers any operations following the
initial processing operation to be
processing operations, regardless of
whether the activity was included on the
list of RTC benefidation activities or
has traditionally been considered
benefidation. For example, electrolytic
refining, an operation often used after
smelting and/or fire refining, uses
procedures similar to activities listed hi
the RTC definition (e.g.. electrowinning)
or considered historically to be
benefidation (e.g., dissolution). Because,
however, the operations follow previous
processing operations, these activities
will be considered processing and any
assodated wastes will be considered
mineral processing wastes.
  EPA acknowledges that the decision
to use this benefidation definition is a
significant departure from the position
taken in the October and April NPRMs.
particularly with respect to the use of
heat and add. After analysis of public
comments, further review of technical
information regarding mineral
beneficiation and processing techniques.
and reexamination of the 1985 Report to
Congress and 1986 Regulatory
Determination, the Agency has
concluded that this definition will
render the most accurate, practical, and
reasonable delineation between
benefidation and processing.
Furthermore, the Agency expects that
little environmental benefit would be
gained by induding these additional
operation types within "mineral
processing" because the Agency
believes that the wastes from these
operations are relatively few in number,
have hi a number of instances already
been studied, and will hi any case be
addressed by the Subtitle D regulations
for extraction and benefidation wastes
presently under development by the
Agency.
  b. Operation mutt serve to remove the
desired product from, or enhance the
characteristics of, an on or mineral, or
a beneficiated on or mineral
Commenters addressing this attribute in
the October 20.1088 NPRM indicated
that the language (La., to remove the
desired product from aa on or mineral
or beneficiated ore or mineral) obscured
the regulatory status of certain
processing operations (e.g* lightweight
aggregate production) whose purpose is
to change die characteristics of valuable
constituents in ores or minerals without
removing or concentrating them. They
suggested, and EPA agreed, that the
processing definition be modified to
include operations that serve to enhance
the desirable properties of, as well as
those that remove the desired product
from, an ore or mineral EPA modified
the second attribute of mineral
processing to include production steps
that use heat to alter the chemical
composition of ores or minerals, or
beneficiated ores or minerals. Many
commenters addressing the April NPRM
argued vehemently that EPA should not
include all operations which use heat fo.
operations other than drying in the
definition of mineral processing.
indicating, as discussed in the previous
section, mat these operations are often a
part of benefidation activities. Several
commenters stated that this attribute
should be written to specifically include
operations that enhance the desirable
properties of materials, leaving the
concern of whether to include heating
operations to the first attribute, which
defines the delineation between
beneficiation and processing.
  After review of the comments and
analysis of additional information. EPA
has acknowledged the need to change
this second attribute of mineral
processing by modifying the "heat"
criterion that considered production
steps using heat to alter the chemical
composition of ores or minerals (or
beneficiated ores or minerals) to be
mineral processing operations. The
Agency agrees that the use of heat
should not be  the determining factor,
primarily because many benefidation
operations use heat as a pretreatment to
enhance the properties of the ore for
subsequent beneficiation steps  and
because EPA does not wish to include
operations already established  to be
beneficiation operations (e.g., leaching.
phosphate rock benefidation) within the
domain of mineral processing.
particularly if the sole reason for
classifying them, in this way is the use of
heat Therefore, in today's final rule, the
Agency has removed its stipulation that
operations using heat an automatically
processing operations, but has allowed
that operations that enhance the
characteristics of the ore or mineral, or
beneficiated on or mineral, an mineral
processing if die operations meet the
other attributes.
  c. Operation uses feedstock that is
comprised of leu than SO percent scrap
materials. The SO percent rule applies to
all materials entering a process
operation that contain the mineral value
rather than all materials entering the
operation irrespective of function. The
October 20.1988 NPRM required that at
least SO percent of the feedstock to an
operation be on or mineral, or
beneficiated on or mineral, for the
operation to be considered a primary
mineral processing operation. Many
commenten responding to that NPRM
sought clarification concerning what
materials an to be included as part of
the "primary" feedstock, recommending
that "in-process" materials derived frotr
mineral processing should be consider*

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 30620     Federal Register  /  Vol. 54. No. 169 / Friday, September 1.  1989 / Rules and Regulations
 "primary" feedstocks along with ores or
 minerals or beneficiated ores or
 minerals for the application of this fifty
 percent rule. In the preamble to the
 April NPRM, EPA asserted that the
 attribute, as presented in the October
 NPRM, affords (1) considerable
 flexibility to mineral processing
 operations, in that they are able to
 accept scrap and intermediate materials
 in their feedstocks and still be eligible
 for Bevill status, while (2) still
 maintaining the essential upper bound
 on the amount of non-ore present in a
 feedstock in order to ensure that wastes
 from operations that primarily process
 materials other than ores and minerals
 are not provided with an exclusion that
 Congress did not intend.
   EPA also clarified in the April NPRM
 that the 50 percent rule applies to all
 mineral-value containing materials
 entering a process operation (e.g.,
 crushed copper ore, beneficiated copper
 ore, in-process materials, and scrap
 copper for the copper smelters), rather
 than to the total of all materials (i.e.,
 mineral values plus non-mineral
 materials such as fuel, reducing agents,
 or fluxing agents) entering the operation.
 EPA also clarified that the accounting
 period over which to analyze feedstock
 percentages should be one year, which
 allows for seasonal fluctuations,  and
 that the rule must be applied to
 individual processing operations (e.g.,
 the smelter separate from the refinery)
 rather than to an entire plant's
 operations.
  The predominant  comment addressing
 the April, 1989 NPRM again concerned
 the accounting for in-process materials.
 Several commenters reasserted that "in-
 process" materials derived from mineral
 processing and returned to the process
 should be considered mineral feedstock
 since they are used as a matter of course
 by the industry as feedstock because of
 their significant mineral value. One
 industry commenter disagreed with
 using this attribute at all; calling for EPA
 to abandon the fifty percent rule
 because it is an unrealistic and
 unnecessary restriction and an
unwarranted intrusion into the
production process.
  As stated in the preamble to the April
 NPRM and further described above.
EPA believes that the rule as written
 provides an extremely flexible tool for
 screening out secondary processors
 from the universe of primary mineral
 processors (the only group eligible for
 the Bevill exclusion], while allowing (1)
 large percentages of scrap to be used in
 primary processing operations and (2)
 seasonal and other variation hi the
 proportions of feedstock materials
without affecting the potential Bevill
status of associated wastes. After
reviewing the comments and also noting
that this criterion does not, to EPA's
knowledge, affect any wastes generated
by primary mineral processors, the
Agency has decided that it will make no
changes in this attribute as first
presented in the October NPRM and
clarified in April.
  d. Operation produces either a final
or an intermediate to the final, mineral
product. The definition of processing in
both the October and April NPRMs
requires that, to be eligible for
consideration for the Bevill exclusion,
the operation must produce either a final
mineral product or an intermediate to
the final mineral product. EPA believes
that products not directly related to
mineral processing operations do not
fall within the scope of the definition
intended by Congress. Several
commenters argued that EPA should
follow Congress* intended broad view of
the term "processing" and include all
parts of integrated operations; no
commenters, however, directly
challenged EPA's position by
nominating wastes arising from non-
mineral-related processes  that may be
co-located with mineral process
operations for exclusion under Bevill.
  In this final rule, the Agency
maintains the position articulated in the
two proposals; that Congress did not
intend the Bevill exclusion to extend to
processing operations outside the
production of an intermediate or final
mineral product, i.e., a material of value
derived primarily from an  ore or
mineral. This attribute ensures that
other operations (e.g., chemical
processing), even if physically located
with a mineral processing  operation,
that produce a non-mineral product that
may or may not be used as a feedstock
to a mineral processing operation will
not be included within the realm of
mineral processing. The Agency also
wishes to clarify that the distinction
between intermediate and final products
refers to whether the mineral value must
undergo further mineral processing.
Materials that are saleable, either as
raw materials to other types of
industrial processes (e.g., chemical
manufacturing) or as finished products
are considered final products. Materials
that must undergo further mineral
processing to be rendered saleable, or
that have no significant value except as
a feedstock to a mineral processing
operation, are considered  intermediate
products. Examples of this latter
category include ilmenite ore slags used
in titanium production and
electrowinning slimes that are
processed for metals recovery.
  e. Operation does not combine the
mineral product with another material
that is not an ore or mineral, or
beneficiated ore or mineral (e.g.,
alloying); and do not involve fabrication
or other manufacturing activities. The
preceding attribute establishes that a
mineral processing operation must
produce a mineral product, whether
final or intermediate. This attribute
establishes that once that final product
has been produced, no other operations
performed on or with that product are
considered to be within the realm of
mineral processing, i.e., mineral
processing has ended. In general, the
end of mineral processing is the point at
which the processed ore or mineral (1) is
combined with another material that is
not an ore or mineral, or beneficiated
ore or mineral (i.e., combining processed
ores or minerals such as steel with
purified non-ferrous metals to produce
an alloy is not mineral processing),  (2)
undergoes fabrication (e.g.,
manufacturing of copper wire), (3) is
subjected to other manufacturing
operations (e.g., chemical processing), or
(4) is marketable and can be sold, even
if the product must undergo further non-
mineral processing prior to being
amenable to an ultimate end use (e.g.,
titanium tetrachloride, an intermediate
product used for the production of
titanium metal and titanium dioxide, is
saleable and is often sold to other
producers frv manufacturing inorganic
chemicals; any operations following the
production of this intermediate,
irrespective of whether they occur on-
site, are not considered to be within the
realm of mineral processing).
  The Agency believes that Congress, in
adopting the Bevill Amendment,
intended to include only those processes
that remove, concentrate, and/or
enhance values contained in ores and
minerals, or beneficiated ores and
minerals, and that manufacturing,
chemical processing, and alloying
operations clearly do not fit into this
category. EPA continues to believe that
the casting of anodes or cathodes is not
a fabrication operation, but is instead an
operation necessary for the production
of an intermediate or final (i.e., saleable)
product and is therefore within the
realm of mineral processing.
  One general view expressed by many
commenters addressing both NPRMs
was that EPA should follow Congress'
intended broad view of the term
"processing" and include all stages from
beneflclatlon through production of final
products, including integrated
operations. Some commenters offered

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           Federal Regiater / Vol 54. No. 169 / Friday. September 1. 1989  /  Rules and Regulations     36621
 specific examples in support of their
 position.
  For example, one commenter objected
 to EPA's preliminary conclusion that the
 production of ammoniated phosphates
 does not constitute mineral processing
 because it involves further processing of
 an intermediate mineral processing
 product arguing that (1) production of
 ammoniated phosphates is enhancement
 of an intermediate to a final mineral
 product since phosphoric acid must be
 further processed in order to be usable
 as fertilizer and (2) EPA regards
 ammoniated phosphate production as a
 part of phosphate processing under the
 Clean Water Act and no rational basis
 exists for reaching a different conclusion
 under the Bevill Amendment Other
 commenters similarly argued that
 wastes from alloying processes should
 be included, but nominated no large
 volume "post-processing" wastes.
  In contrast several other commenters
 argued that EPA should narrow the
 definition of processing via this
 attribute, and not finalize a definition of
 mineral processing that leaves virtually
 unchanged the  extremely broad 1980
 definition of mineral processing. In
 particular, these commenters stressed
 that the processing definition should not
 exempt operations that occur after the
 identity of the ore or mineral is
 destroyed. They stated, for example.
 that in production of titanium dioxide
 using the sulfate process a "slag" is
 produced from  smelting beneficiated
 ilmenite ore in  an electric are furnace.
 This "slag", they argued, is a final
 mineral product which is then
 chemically processed (he* "washed with
 sulfuric acid" and "calcined"), and thus
 operations subsequent to the smelting
 should not be exempted. Similarly, the
 commenters argued that in the case of
 titanium dioxide production n«mg the
 chloride process,  no wastes generated
 subsequent to chlorination should be
 eligible for the Bevill exemption,
 because titanium tetrachloride is the
 final mineral product •"^ any
 subsequent operations are not to be
 considered processing.
  Following review of these comments
 and additional  analysis. EPA ***t
 concluded that none of the public
comments received on the two
proposals or any additional information
received by the Agency support any
 substantial revisions to this attribute,
 though some clarifications are discussed
here. The Agency maintains that
Congress did not  intend the Bevill
 exclusion to extend to processing
 operations that are performed after the
 production of a saleable mineral
 product Phosphoric acid, for example, is
a saleable mineral product mat is
purchased by diverse industries and has
many uses in manufacturing and as a
feedstock for further chemical
processing. Thus, the manufacture of
ammoniated phosphate fertilizer by
adding ammonia to phosphoric acid, is
not a mineral processing operation; this
is chemical processing that uses a
saleable mineral product as a feedstock.
Likewise, EPA considers titanium
tetrachloride, produced during the
titanium chloride process, to be a
saleable product; any processing
subsequent to its production is
considered to be chemical processing. In
contrast titanium-bearing slag
generated in blast furnaces is
considered eligible for continued Bevill
exclusion, because although it is a
saleable intermediate product it has no
significant end use except for additional
mineral processing. Accordingly, the
processing of this slag using sulfuric
acid digestion is a mineral processing
operation rather than a chemical
processing operation, and all qualifying
wastes from this process are Bevill
wastes.

4. Residuals From Treatment of
Excluded Mineral Processing Wastes
Are Eligible for Exclusion Provided That
They Meet the High Volume and Low
Hazard Criteria
  The October and April NPRMs both
articulated EPA's intention to include as
processing wastes the residuals from the
treatment of excluded mineral
processing wastes, but only if those
residuals independently meet the
criteria for special waste status. Several
commenters specifically suggested that
for clarity EPA should fist for study, in
the regulation itself, the category
"residues from  the treatment of all
mineral-processing wastes on the
preceding list which are generated at a
rate greater than the high volume
criterion established by EPA." Other
commenters argued that the special
waste criteria should not be applied to
treatment residuals, recommending that
EPA include in the regulation itself on
the list for study "residues from the
treatment of all mineral processing
wastes on the preceding list regardless
of the rate of generation." One
commenter noted mat treatment •mi
discharge of process water in its
industry is limited by the Clean Water
Act and. as a result treatment residuals
are limited in volume and thus do not
meet the high volume criterion because
of other regulatory demands. Another
claimed that EPA must evaluate actual
waste management practices and
impacts to human health and the
environment before deciding that
nraiduals an subject to subtitle C
Finally, one commenter stated that EPA
should be consistent in applying its
^definition of process wastewater and  .
include aqueous pollution control
residuals with process wastewaters,
claiming that EPA provided no rationale
for the statement that process
wastewater does not include aqueous
waste streams from pollution control
devices.
  After review of the comments, EPA
continues to believe that the most
appropriate interpretation of the term
"solid waste from the processing of ores
and minerals" should include pollution
control residuals that an presently
generated as long as such residuals meet
the high volume and low hazard criteria
required for all exduded wastes. By
including qualifying pollution control
residuals on the list of wastes excluded
under the Bevill Amendment the intent
of Congress will be achieved by
allowing further study of these high-
volume, low-hazard wastes. EPA does
not believe it appropriate to treat low
volume pollution control residuals as
exempt wastes regardless of the nason
why these wastes an not generated in
Idgh volumes.

5. The Processing Definition Could Be
Narrowed by Adding a Co-Location
Requirement

  In the April NPRM the Agency
solidted comment concerning whether
the definition of "mineral processing"
should be further narrowed by confining
"mineral processing" to only those
mineral processing operations that are
co-located with extraction and
benefidation operations. Some
commenters encouraged EPA to narrow
the definition of processing and indude
only those processors that an co-
located with benefidation operations.
stating that (1) The co-locational
requirement la an inherent aspect of the
Bevill exemption, (2) the legislative
history never indicated that wastes
generated at locations divorced from
extraction and benefidation sites should
be exempted. (3) that Congress never
intended non-mining industries (e.g.. the
chemical industry) to have Bevill-
exempt wastes, and (4) EPA itself, in the
1980 interpretation, indicated only
wastes that an co-located should be
exempted.
   Many other commenters insisted that
EPA do nothing to further narrow the
 definition of processing, especially by
 limiting the exemption to processors
 that an co-located with benefidation
 operations. They contended that: (1)
 This narrowing would be inconsistent
 with the language of the Bevill

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 36622     Federal Register  /  VoL  54. No.  169 / Friday. September 1. 1969 / Rules and Regulations
Amendment, the intent of Congress, and
the interpretation of the Court, (2)
wastes will exhibit the same intrinsic
high volume, low hazard, and other
characteristic* regardless of their
location relative to extraction and
beneficiation operations, (3) if the
Agency ignores site characteristics
which directly affect risk (Le, hazard)
potential, then site characteristics which
have no effect on risk—such as co-
location, must also be disregarded. (4) if
EPA relies on the special waste concept
to define processing, then the Agency
must recognize that the 1978 proposal as
well as EPA's Draft Background
Document do not give any indication
that only processing operations at
integrated facilities should be eligible
for the Bevill exclusion, (5) many if not
most sectors ship from mines to
beneficiation and/or processing
facilities, (6) co-location could threaten
the environment if processing facilities
are moved to the sensitive areas in
which mines are often located, and (7)
no significant domestic extraction or
beneficiation occurs in some sectors,
making it impossible to perform the
processing (e.g., chromite ore roasting/
leaching, manufacture of hydrofluoric
acid) in close proximity to beneficiation
anywhere in the U.S.
  After further review, EPA has decided
that a further narrowing of the
processing definition using a co-location
criterion or any other limitation is not
appropriate or required by
Congressional intent as reflected by the
legislative history. Furthermore, the co-
location requirement could conceivably
create major inequities between
facUities within sectors because some
faculties in a sector may be co-located
while others are not. and between
sectors because some sectors rely
entirely on foreign ore supplies and
others do not; the volume or hazard of
wastes in these sectors are largely
unaffected by the location of the
extraction and beneficiation operations
providing their feedstocks. Therefore,
EPA will continue to use the definition
delineated above (La* solid waste
uniquely associated with mineral
processing and meeting aD of the five
attributes of mineral processing) and
has not employed any additional criteria
that would narrow the definition of
"mineral processing."

£ Related RCRA Issues

1. Applicability of the Mixture Rule
  The April 17.1980 NPRM stated that
EPA would apply the mixture rule to
Bevill and non-Bevill mixed waste
streams under almost all circumstances.
Under this policy, mixtures of one or
more listed hgyrTr1f'iu wastes ""^ •
large volume. low hazard mineral
processing waste would be considered a
hazardous waste unless and until the
mixture is delisted. EPA proposed.
-however, that in the case of mixtures of
non-excluded "characteristic" wastes
and Bevill wastes, the mixture would be
considered a hazardous waste if it
exhibits one or more of the same
hazardous characteristics that are
exhibited by the non-excluded waste. If,
on the other hand, the mixture exhibits
one or more hazardous characteristics
exhibited by the Bevill waste but not by
the non-excluded characteristic waste,
then the mixture would not be a
hazardous waste. Furthermore, mixing a
characteristic hazardous waste  with a
Bevill waste would constitute treatment
of a hazardous waste, and would be
subject to the appropriate regulation for
the treatment storage, or disposal of
hazardous wastes, including obtaining a
permit
  Several commenters asserted that the
Agency's preliminary position on the
mixture rale is inappropriately lax and
should be modified to regulate co-
managed waste mixtures more
stringently. These commenters argued
that mixtures of Bevill and non-Bevill
wastes do not meet the low hazard
criterion for Bevill exclusion.
Commenters also stated that co-
management typically occurs
subsequent to initial processing, and
thus does not fall within the scope of the
Bevill exclusion.
  Other commenters argued that the
proposed application of the mixture rule
is overly strict These commenters
stated mat applying the mixture rule as
proposed would discourage
environmentally protective co-
management Commenters specifically
recommended that mixtures of non-
Bevill characteristic or listed wastes and
Bevill wastes be regulated as hazardous
only when the resulting mixture (1)
demonstrates a hazardous characteristic
not exhibited by the Bevill waste, or (2)
is more hazardous than the Bevill waste
alone. These commenters stated that the
Agency should exempt mixtures of
characteristic or listed mineral
processing wastes with Bevill wastes
when the disposal of the Bevill  waste is
subject to the requirements of a State or
Federal program to control groundwater
contamination, provided that the waste
is completely characterized such that
the effects of **'**
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           Federal Register / Vol 54. No.  169 / Friday. September 1. 1980 / Rules  and Regulations    86623
regulation of these waste streams was
unnecessary.
  Some commenters argued that the
proposed modifications to the mixture "
rule conflict with Congressional and
Court ordered requirements to perform
studies of particular waste streams.
These commenters stated that all
processing wastes are temporarily
exempt from all provisions of subtitle
C—including the mixture rule—until the
special study is completed and a
Regulatory Determination is completed.
Other commenters contended that the
Court interpretation of the legislative
intent of the Bevill Amendment supports
the argument that the beneficial effects
of waste mixing should be incorporated
into the low hazard criterion, and if
insufficient data are available to do so, •
then the Agency should further study  the
effects of mixing practices.
  Finally, commenters argued that
particular waste streams and classes  of
wastes should not be subject to the
modified mixture rule and that they
should remain eligible for the Bevill
exclusion. Waste streams include
bauxite red mud mixed with red scale.
Lurgi wet scrubber effluent mixed with
alkaline tailings at primary copper
facilities, minor waste streams from the
electrowinning and refining of gold
mixed with tailings, and small amounts
of waste mixed with sulfuric acid
storage tank clean-out and rerirculation
water from phosphate processing.
  The Agency has reviewed and
considered these comments, and has
concluded that it is consistent with the
intent of Congress and the Court and
most protective of human health and  the
environment to continue to apply the
mixture rule to Bevill and non-Bevill
mixed waste streams as described in  the
April 17,1989 NPRM. Only in this way
can the Agency ensure that an
unintended regulatory exclusion is not
afforded (e.g^ through intentional
dilution with high volume Bevill wastes)
to small volume hazardous mineral
processing wastes mat should rightly be
subject to Subtitle C requirements. By so
doing, mixtures of «»«•" volume mineral
processing wastes and Bevill wastes are
potentially subject to subtitle C
requirements, and the act of mixing
them will require • subtitle C treatment
permit For the same reasons. EPA also
does not see any reason to carve out-
particular exceptions for the waste
stream mixtures cited by commenters.
  Because many facilities may lack
historical knowledge of the relevant
concentrations of constituents and
volumes of the characteristically
hazardous non-excluded pre-mixed solid
wastes, and pre-mixed Bevill wastes
comprising the characteristically
hazardous Bevill waste mixtures. EPA
does not believe that a baseline risk
approach is feasible. This also is why
EPA's approach to these characteristic. /
mixtures differs from the approach
retained today regarding listed mixtures.
(See also the discussion regarding utility
wastes above). Further, concerns over
enforceability of alternative approaches
have convinced EPA that the approach
adopted here is necessary to assure that
nonexcluded characteristically
hazardous wastes are properly managed
and are not improperly mixed with
Bevill wastes so as to avoid regulation.
  The argument that EPA's position is in
conflict with the 1986 Regulatory
Determination for extraction and
beneficiation wastes or Congressional
and Court directives regarding these
Bevill wastes is specious; the issue  at
hand is regulation of low volume
hazardous mineral processing wastes.
not regulation of Bevill wastes. Non-
Bevill mineral processing wastes that
are hazardous are subject to all aspects
of the subtitle C regulations, including
the mixture rule. Mixtures of Bevill  and
non-Bevill processing wastes will be
treated in the same manner,
notwithstanding the fact that EPA has
not yet studied Bevill processing wastes.
Further, even were EPA to agree that the
mixture rule were inapplicable to the
Bevill waste mixed with hazardous
waste, mixtures of listed hazardous
wastes with Bevill wastes would
continue to be subject to regulation
because the "mixture" would "contain"
listed hazardous waste, subject to
regulation unless delisted. See Chemical
Watte MgmL, lac. v. EPA. 869 F.2d 1526
(D.C. Or. 1989).
  Moreover, the Agency finds no
compelling reason to provide
exemptions for particular •™»fl volume
wastes that may be associated with
mineral processing operations, such as
cleaning wastes. Many other industrial
operations also generate such wastes.
and EPA does not believe that the fact
that current management involving co-
management justifies continued
regulatory exclusion for wastes that are
not uniquely associated with  mineral
processing (and therefore are not
defined as mineral processing wastes)
and would not in any event meet the
high volume criterion.
  Finally, providing regulatory
exclusions for mixtures of Bevill and
non-Bevill mineral processing wastes
would provide disincentives for
developing ways to «"»"«""«• hazardous
waste generation. This would be in
direct conflict with one of the Agency's
major policy goals, that of pollution
prevention.
2. Applicability of the Derived-From   ^
Rule

 * The April 17,1989 NPRM stated that
the Agency will clarify the application
of the derived-front rule in a
supplemental notice (expected in mid-
1989) to the May 6.1987 proposed rules
for boilers and industrial furnaces
burning hazardous waste. In the interim.
the proposal stated that the Agency
would adhere to its prior statements on
this issue, Le.. that wastes from
comanaging hazardous wastes and
Bevill materials remain within the scope
of the Bevill exclusion so long as the
character of the residues is not
significantly affected by the hazardous
waste management activity. To the
extent that co-combustion residues are
significantly affected, they could no
longer be considered to truly arise from
processing an ore or mineral (or from
other activities addressed by the Bevill
Amendment). See 50 FR 49190
(November 29,1985); 52 FR 17012-13
(May 6.1987) for farther information.
   Many commenters responded to the
proposed rule by requesting that the
Agency immediately clarify its position
on the derived-from rule and provide a
supplemental notice to the final rule for
boilers and industrial furnaces. Other
commenters argued that Congress     -
dearly did not intend for the Bevill
Amendment to exempt the burning of
hazardous wastes in smelter furnaces.
These commenters further argued that
the Agency's position on the derived-
from rule rewards dilution as a means of
disposal and is unlawful and overly
broad. Commenters suggested that if the
Agency determines that combustion
residuals from burning hazardous waste
with Bevill exempt materials are in fact
exempt from Subtitle C then the Agency
should include an assessment of the
potential health and environmental
impacts of burning in the Report to
Congress.
   Other commenters stated that wastes
from industrial furnaces burning
hazardous waste fuel should remain
 under the Bevill exclusion as long as the
 character of the residue is not
 significantly affected by the
 management activity. These
 commenters argued that the air pollution
 control residues from hazardous waste-
 find kilns an Bevill wastes just as are
 residues from coal-fired kilns.
   The Agency has reviewed and
 evaluated these comments regarding the
 derived-from rule. As indicated in the
 April NPRM. EPA will clarify the
 application of the derived-from rule ir~*
 supplemental notice to the May C, 196. ^
 proposed rules for boilers and industrial

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 36824     Federal Register / VoL 54. No. 169 / Friday. September 1. 1980 / Rules and Regulations
 furnace* burning hazardous waste. We
 expect this notice to be published during
 the next several months. Until then,
 wastes from co-managing hazardous
 wastes and Bevill materials remain
 within the scope of the Bevill exclusion
 so long as the character of the residues
 is not significantly affected by the waste
 management activity.
 Effects of the Land Disposal Restrictions
  Commenters argued that the Agency
 has misinterpreted the land disposal
 restrictions (LDR) as they relate to
 mineral processing. According to
.commenters, the LDR will not be
 automatic for non Bevill mineral
 processing wastes that exhibit
 hazardous characteristics as of May
 1990. Also, these commenters stated that
 EPA's statutory mandate to conduct a
 detailed and comprehensive review of
 mineral processing wastes requires the
 Agency to take into account the
 potential effect of the LDR rulemaking. If
 the Agency considers •liminating the
 Bevill exclusion as applied to a   .
 particular materials stream, it should,
 according to these commenters, only do
 so in the context of a land ban BDAT
 determination.
  The statutory mandate to conduct a
 detailed and comprehensive review
 applies only to Bevill wastes, not to the
 other mineral processing wastes
 removed from Bevill by today's final
 rule. Therefore, EPA is under no
 obligation to consider the effects of
 potential land disposal restrictions on
 mineral processors prior to removing
 non-Bevill mineral processing wastes
 from the exclusion.
  A further question exists as to the
 status of the wastes withdrawn from the
 exclusion under the land disposal
 restriction provisions that establish •
 schedule for prohibiting untreated
 hazardous wastes from land disposal
 Once withdrawn from the Bevill
 exclusion, these wastes wiD be
 identified as hazardous if they exhibit •'
 hazardous waste characteristic none
 will be listed (at least at this time). The
 statute provide* with respect to waste*
 identified because they exhibit •
 hazardous waste characteristic that EPA
 must promulgate prohibitions and
 establish treatment standards for "all
 hazardous waste* identified under 3001"
 by May 8.1980. RCRA section 3004
 (g)(4)(C). (EPA interprets this language
 as referring to the wastes identified aa
 hazardous as of November 8, 1984, the
 date of enactment of the HSWA
 amendments because they exhibit on*
 or more hazardous characteristics.)
 Wastes newly identified after November
 8.1964 must be prohibited from land
 disposal, and EPA must develop a
treatment standard for them, within six
months after they are newly identified.
RCRA section 3004 (g)(4).
  EPA believes that the wastes
withdrawn from the exclusion are
"newly identified" for purposes of these
provisions. Although technically the
wastes are not being identified by a new
characteristic, they an being brought
into the subtitle C system after the date
of the 1984 RCRA amendments. The
Agency plans to address wastes brought
in under subtitle C by this rule further in.
the proposed land disposal restrictions
for the Third scheduled wastes.
  However, because any hazardous
waste, including newly identified
wastes, is subject to the requirements of
the California List and Solvents and
Dioxins final rules, the most important
question is how the State programs are
affected. Today's final rule removing
certain mineral processing wastes from
the Bevill exclusion is not being imposed
pursuant to the HSWA and therefore
today's rule is not effective in
authorized states. Thus, as discussed
more fully below, today's regulation is
applicable only in those states that do
not have interim or final authorization.
Authorized states that do not have a
Bevill exclusion or analog. Le* all
mineral processing wastes are already
eligible for regulation as hazardous
wastes by the state, are already subject
to the land disposal restrictions for
California List and Solvents and Dioxins
wastes.

4. RCRA Section 3004(x)

  As part of the 1984 HSWA
Amendments, Congress incorporated •
provision allowing the EPA
Administrator to relax certain of the
Subtitle C standards contained in the
new amendments as they relate to that
management of mhifaig wastes, utility
wastes, and cement kiln dust wastes.
This provision, found at section 3004(x).
is commonly called the "Simpson
Amendment.'' The Simpson Am«n«
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           Federal Register /  VoL  54. No. 160 / Friday.  September 1. I960 / Rules and Regulation*     3C825
the special study wastes are determined to be
^iTir^'flpT it ouy not be necessary or
appropriate, because of their special
characteristics and other factors, to nibfect
•uch wastes to the tame requirements that
are applicable to other hazardous waste*.
and that protection of human health and the
environment does not necessarily imply the
uniform application of requirements.
developed for disposal of other hazardous
wastes."
Conf. Rpt at 93 (emphasis added). The
adoption of section 3004(x) is fully
consistent with Congress* concern in
1930 that the special wastes may not
necessarily be amenable to full Subtitle
C controls due to the large volumes and
potentially lower hazards. Such
concerns would not hold for wastes
which an not high volume, low hazard.
and the Conference Report suggests that
Congress was not concerned with
applying section 3004(x) to such wastes.
  The Conference Report goes on to
explain that the authority of section
3004(x) "is intended to extend to all of
the wastes required to be studied by
EPA pursuant to section 8002 (f), (n), (o).
and (p), and does not in any way alter
the existing scope of section
3001(b)(3)(A)." Id. at 94 (emphasis
added). Several commenters cited this
language to indicate that the 3004(x)
was designed to apply to all wastes
which EPA defined within the scope of
the Bevill amendment as of 1964. Le* all
mineral processing wastes regardless of
volume or hazard. EPA does not agree
the language can be so read. The Court
of Appeals clearly ruled in EDF 0 that
Congress never intended the Bevill
Amendment to apply to wastes which
are not high volume, low hazard special
wastes. Thus, even in 1984. the "existing
scope" of section 3001 was not as broad
as EPA was interpreting it Congress
intended section 3004(x) to apply to
those wastes within the scope of the
Bevill amendment as Congress, not EPA.
interpreted it (Le.. special wastes). EPA
notes that the 1983 Senate Report
referred to in the April NPRM supports
thi« com-htfiflu, but is not ***• sole basis
for it
  In light of the decision of the Court of
Appeals construing Congrats' intent in
adopting the Bevill amendment in 1980
(prior to die Simpson amendment), the
proper reading of section 3004(x) is that
it applies only to •pedal wattes as
defined by today's final rule. However.
EPA does recognize that for certain
wastes which an high volume, but also
high hazard, there may be valid
concerns regarding the amenability of
certain subtitle C controls. EPA would
appreciate receiving any information
regarding these effects in industries
affected by today's rule.
F. Administrative Issues
1. Subtitle C and Wastes Withdrawn
From the Bevill Exclusion
  Commenters recommended that the
Agency clarify that surface
imp6undments managing processing
wastes removed from the Bevill
exclusion and exhibiting a hazardous
characteristic will have four years, as
provided for in section 3005(j)(6). to
comply with the Minimum Technology
Requirements (MTRs). These
commenters were concerned that
mineral processors newly subject to
subtitle C would have to meet the MTRs
under the LDR Program.
  Other commenters recommended that
the Agency impose subtitle  C
regulations on facilities that fail to
properly close and secure units in
accordance with all currently applicable
requirements within the six month
compliance period proposed in the
NPRM. As an alternative, these
commenters recommended  that the
Agency require affected facilities to
implement a RCRA ground-water
monitoring program to assure detection
of threats to human health and the
environment Without assurance that no
contamination was present according to
these commenters. Subtitle C closure
and post-closure requirements must be
met so as to characterize and remediate
any potential human or environmental
threats.
  Section 30050)(6) provides that
surface impoundments that become
eligible for interim status after
November 8,1964 as a result of receiving
wastes that an hazardous as a result of
"additional listings or characteristics for
the identification of hazardous waste
under section 3001" must comply with
MTRs within four yean of promulgation
of the new listing or characteristic. The
wastes that an no longer subject to the
Bevill exclusion an not being brought
 into the subtitle C system as a result of
 newly promulgated listings or
 characteristics, but EPA believes that
 the intended purpose of section
 3005UH6) is to allow surface
 impoundments that an newly eligible
 for interim status after November 8.1984
 to have the same four years to close or
 retrofit afforded interim status
 impoundments in existence on
 November 8,1984. Consequently. EPA
 believes that section 3005(j)(6) does
 apply to the impoundments receiving
 wastes newly brought into the subtitle C
 system as a result of today's action. EPA
 notes that it is adopting a similar
 construction of section 3004(g)(4) and
 thus it also viewing these wastes as
 newly identified for purposes of the land
 disposal restrictions program. In the
event that there an inconsistencies
between requirements under 3005(j)(6)
and the land disposal restrictions        ,.
program, they will be addressed by EPA
 vhe"n the Agency promulgates land ban
."quinmenta for these wastes.
2. Opportunities for Public Comment
  In the April 17.1989 NPRM. the
Agency provided the public with a 45
day public comment period, during
which time the Agency accepted written
comments submitted to the Docket
Information Center and held a public
hearing in Washington. DC. Commenters
asserted that by scheduling only one
hearing location and date the public was
denied full access to the public comment
process. Other commenters argued that
the public comment period was too short
to allow the public adequate opportunity
to review and comment on the NPRM.
These commenters stated that an
additional 30 days should have been
allowed for public comment
  The Agency disagrees with these
commenters. While the opportunities for
public review and comment on the April
17.1989 NPRM wen more limited than
the Agency customarily provides, the
Agency believes that these opportunities
were nonetheless adequate.
Furthermore, the public review and
comment schedule was driven by the
 Court-ordered schedule, which
prevented the Agency from providing a
 longer public comment period or
 additional public hearings. In addition.
 for many issues, there have been
 multiple comment periods.
 3. Executive Order 12291 Analysis
   In the April 17.1989 NPRM. the
 Agency explained that section 8 of
 Executive Order 12291 exempts an
 agency from the requirements of the
 Order when compliance would conflict
 with deadlines imposed by statute or
 Judicial order. Accumulating the
 information and conducting the analyses
 required to fully comply with the
 requirements of sections 2 and 3 of
 Executive Order 12291 takes many
 months. Therefore, compliance with
 these requirements in preparation for
 the October and April proposed rules
 was not possible within the schedule
 specified by the Court for this
 rulemaking. In the NPRM. the Agency
 explained that although EPA could not
 conduct a complete economic impact
 analysis within the period of time
 allowed by the Court the Agency's
 economic impact analyses conducted in
 support of previous Agency rulemaking
 and Report to Congress activities did
 suggest that the proposal might well not
 meet the criteria for a "major" rule.

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30628    Federal Register  /  VoL  54. No. 169 / Friday,  September 1, 1989  / Rules and Regulations
  Commenten argued that the Agency
to hi fact compelled to prepare an
economic analysis for this rulemaking.
These commenters asserted, without
providing alternative analyses or
information in support of the assertion.
that the rule would qualify as a major
rule under each of the three tests used to
determine impact under Executive Order
12291. Some commenters argued that the
Court clearly indicated that the Agency
is required to consider costs and
benefits in making Bevill dedsions (see
e.g.. EDFI at 1315). Commenten
recommended that if the Agency  _
requires additional time to prepare an
economic impact analysis, it should
request an extension from the Court
  As discussed above and in the
October and April proposals, the
Agency does not have adequate time to
prepare a complete RIA that to fully
responsive to E.O.12291 in connection
with this rulemaking. Moreover, the
Agency has not received convincing
arguments or information that suggest
that the rule, in either proposed form or
in the form finalized  today, would
constitute a "major rule." et least not in
terms of aggregate financial impacts in
excess of $100 million annually. As far
as any obligation to consider economic
impact in making Bevill exclusion
dedsions is concerned, EPA's reading of
the court dedsion in EDF I to that
economic effects and all of the other
RCRA 8002(p) study  factors must be
evaluated in the Report to Congress and
considered hi making the regulatory
determination for Bevill mineral
processing wastes, but not in identifying
the mineral processing wastes that
satisfy the Bevill criteria in the first
instance. Finally, because EPA to
capable of discharging its duties within
the time period allotted by the Court, the
Agency does not believe that a schedule
extension for purposes of conducting an
impact study that to not required to
appropriate.
  Commenten stated that the Agency
does not have a basis tat claiming that
the rulemaking will not constitute a
major rule, and therefore that the rule
does require a Regulatory Impact
Analysis. Sufficient information.
according to commenten, waa provided
to the docket after the October 20,1988
proposed rulemaking. These
commenten stated that the Department
of Interior (DOI) has indicated that it.
possesses the necessary date for  .
conducting a Regulatory Impact
Analysis.
  EPA disagrees that the information
that has been submitted to the docket
demonstrates that this action constitutes
a major rule. In fact although the
                                      Agency had requested specific
                                      information in the October and April
                                      proposals regarding low volume
                                      processing wastes that would or might
                                      be affected by today's rule, virtually no
                                      specific data on such wastes was
                                      received in public comment on these
                                      proposals. Through past cooperative
                                      work with the U.S. Bureau of Mines
                                      (BOM], EPA to well aware of the types
                                      of information available from DOI
                                      concerning mineral processing wastes.
                                      While very comprehensive information
                                      on numbers and identities of facilities
                                      and production and sales  volume data
                                      are available from BOM, the Bureau has
                                      very little information on other variables
                                      that are critical to a complete evaluation
                                      of regulatory and economic impact such
                                      as waste types, volumes, and
                                      characteristics, and waste management
                                      practices.
                                        The Agency has made a good faith
                                      effort to comply with the requirements
                                      of Executive Order 12291 by conducting
                                      a comprehensive economic impact
                                      screening analysis, as presented below
                                      in Section VHL

                                      4. Regulatory Flexibility Analysis
                                        In the April 17,1989 NPRM. the
                                      Agency explained that Section 808 of the
                                      Regulatory Flexibility Act (RFA) allows
                                      the Administrator to waive or delay
                                      completion of the RFA screening
                                      analysis in response to an emergency
                                      that makes compliance with the
                                      requirements of section 603 or die Act
                                      on a timely basis impracticable. In this
                                      instance, the court-imposed deadlines
                                      for publication of the October and April
                                      proposed rules have prevented EPA
                                      from conducting a complete screening
analysis of potential smell business
impacts in time to support the
rulemaking process, especially given
that mon than 100 mineral commodity
sectors would have required screening
for potentially hazardous waste and the
presence of significantly affected small
business entities. In both the October
and April NPRMs the Agency solicited
comment and specific information
relating to specific small businesses or
indivic ml commodity secton that
produce on or mineral processing
wastes that could, by virtue of the
potential hazardous characteristics of
such wastes, be subject to advene
appreciably between mineral-industry
sectors, and therefore, the extension of
information from the nonferrous and
ferroalloy producing sectors to the
nonmetallic ore" and mineral processing
sectors to inappropriate. These
commenters asserted that the Bureau of
Mines could provide information
necessary to support a screening study.
  In section DC of this preamble, the
Agency presents a comprehensive
analysis of the impacts of this
rulemaking on small businesses.
G. Comments Addressing Nine Wastes
for which Final Bevill Status is
Established by Today's Rule

  This section summarizes public
comments received by EPA addressing
nine potentially high volume wastes on
which the Agency proposed to take final
action in the April NPRM. EPA's
decisions regarding the Bevill status of
these materials are presented in section
IV. below, though responses to a limited
number of specific questions and issues
raised by commenten an addressed in
this section.
1. Slag From Primary Copper Processing

   Several commenten supported EPA s
proposal to retain primary copper
smelting slag within the Bevill
Amendment exclusion as a high volume,
low hazard mineral processing waste.
They noted that slag from primary
copper smelting constitutes a low
hazard waste according to a study
supported by EPA. They further agreed
mat all types of copper processing slag
(La- reverberator furnace, converter.
md refining slag] should be aggregated
 to meet the volume criterion. One
 commenter stated that its anode and
 converter slag to not discarded but
 recycled to smelters and claimed this to
 be a standard practice at UJS. smelters.
 That same commenter noted that its
 reactor slag to an intermediate product
 mat to processed in a slag concentrator
 using benefidation activities (Le,
                                                      iponded by stating
                                                                            other facilities either discard or clean
                                                                            the slag. They claimed that water
                                                                            extract tests in which only one of 15
                                                                            samples exceeded EP toxidty levels
                                                                            have demonstrated that the waste to low
                                                                                               disagreed with
   Other
                                       that the Agency has inadequately
                                       evaluated the rule's impact on small  .
                                       businesses, but no commenten provided
                                       any specific information ralated to small
                                       business firms or potentially affected
                                       sectors. Nonetheless, these commenten
                                       stated that the Agency should recognize
                                       that enterprise ownership patterns vary
 EPA's proposal to ntain copper slag.
 They indicated that the waste sampling
 affort conducted for the draft mineral
 processing waste Report to Congress
 revealed that one of the eleven samples
 of copper slag exhibited the EP toxidty
 characteristic. In addition, the waste
 contained elevated teachable levels of
 arsenic, cadmium, and lead. Water

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I
Federal Register / Vol 54. No. 199 / Friday. September 1. 1989 / Rule* and Regulation*    36827
            extraction i
            tlto WAStft C
npling also revealed that
     eachable arsenic
            and cadmium at concentrations
            exceeding the EP trigger level They
            noted that data from the draft Report to
            Congress demonstrate exceedances of
            the AWQC for copper smelting slag:
            cadmium exceeds the AWQC by up to
            9.000 times, copper by up to 9,000 times.
            and lead by up to 15,000 times.
              One commenter who in the past used
            copper slag for construction purposes in
            the state of Washington objected to the
            inclusion of slag from primary copper
            smelting, specifically objecting to the
            classification of copper smelting slag as
            nonhazardous. This commenter
            contended that contamination caused by
            copper smelting slag in the Tacoma.
            Washington area has been documented
            in numerous reports. In 1983, they
            claimed, the Tacoma Pierce County
            Health Department issued a notice
            advising against consumption of bottom
            fish from the Hylebos waterway and
            against regular consumption of fish from
            other waterways in the area  because of
            the presence of arsenic and lead in fish
            caused in part by smelting slag.
              EPA today finalizes the decision to
            leave copper slag within the  exclusion
            for study. Data recently collected by
            EPA (using Method 1312) confirms that
            this waste passes the hazard screening
            criterion. Furthermore, 1310 data
            developed from the same sample fails to
            confirm the results cited by the
            commenter.

            2. Slag From Primary Lead Processing
              A commenter supported EPA's
            proposed retention of lead processing
            slag, but indicated a concern that only
            smelting and not refining slag may have
            been included. They requested that if
            this is EPA's position, that the Agency
            modify its definition to include refining
                th
ntc
        dl
            EPA's proposal to i
            arguing that slag from prii
              dwith
            processing cannot be considered low
            hazard under any reasonable definition.
            effort conducted fof toft dzsft mjneiu
            processing waste* Report to Congress
            revealed that all five of UM plants
            generating this waste and thirteen of
            seventeen sample* of slag from lead
            processing exhibited the EP toxidty
            characteristic. Two of the five facilities
            failed for cadmium: three of the five
            facilities and eight of the 17 total
            samples exceeded the drinking water
            standard for lead by more than 1000-
            fold; and one of the plants exceeded 100
            times the drinking water standard for
            cadmium even when leached with
            water. All samples of granulated or hot
                           dumped slag exhibited the EP toxicity
                           characteristic; only the dezinced slag
                           passed the characteristic teat They
                           noted that data from the draft Report to
                           Congress demonstrate exceedances of
                           the AWQC for copper smelting slag:
                           cadmium exceeds the AWQC by up to
                           6.000 times, zinc by up to 2.100 times.
                           and lead by up to 68,000 times.
                             EPA today finalizes the decision to
                           leave lead slag within the exclusion for
                           study. Data recently collected by EPA
                           (using Method 1312) confirms that this
                           waste passes the hazard screening
                           criterion at three facilities. The data
                           cited by the commenters is not
                           determinative of whether the waste will
                           remain within the exclusion under
                           today's screening criterion.

                           3. Red and Brown Muds from Primary
                           Bauxite Processing
                             Commenters supported the Agency's
                           proposed retention of red and brown
                           muds from bauxite refining within the
                           mining waste exclusion. They agreed
                           that red and brown muds satisfy the
                           definition of mineral processing and
                           meet the low hazard and high volume
                           criteria. The commenters further
                           claimed that should red and brown
                           muds incorrectly be classified as
                           hazardous waste, a large share of the
                           hazardous waste storage capacity in the
                           U.S. would be consumed with no
                           increased benefit or protection to the
                           environment One commenter further
                           argued that this waste is from a mineral
                           benefidation. not mineral processing
                           waste.
                             Red and brown muds are created by
                           an alkaline digestion operation; they
                           therefore constitute mineral processing
                           wastes.

                           4. Phosphogypsum From Phosphoric
                           Add Production
                                                    A number of i
                                               iten
                                                                            imp
EPA's proposal to retain
phosphogypsum within the Bevill
exclusion. They agreed that
phosphogypsum meets the high volume
and low hazard criteria and should be
retained in the Bevill exclusion.
Additionally, they contended that
compliance with subtitle C
requirements, including land disposal
restrictions, in the management of
phosphate rock is not possible. Where
teconoiosiGalur fisasiDAe, cotnplianfie
would require expenditures that cannot
                            be sustained by the fertilizer industry.
                            Several industry connsenten claimed
                            that the exclusion for phosphogypsum
                            will be meaningless if the rainwater
                            falling on these stacks also is not
                            exempted, noting that the collection of
                            mis rainwater runoff is an integral part
                            of the processing of phosphate rock as
this processing could not legally occur if
the runoff was not collected and
managed in accordance with the NPDES
program.   '
  Commenters argued further that
phosphogypsum should not be
considered separately from the
recirculating process water with which
it is linked. Process water is used to
convey phosphogypsum to management
areas and serves a critical function in
maintaining water balance. Water used
to transport phosphogypsum is
generated at a different point in the
production process only where it is
redrcuLated. The commenters asserted
that separate consideration of
phosphogypsum and process
wastewater does not comport with the
Agency's historical approach to the
Bevill Amendment.
  Other commenters, hi contrast,
criticized EPA's proposal to retain
phosphogypsum from phosphoric add
production within the Bevill exclusion.
They claimed that phosphogypsum.
under any reasonable definition, is not
low hazard. Of the 10 plants sampled in
a study contracted by EPA. 14 of 19
samples exceeded 100 times the MGLs
for alpha particle radioactivity, radium-
228. or both. Furthermore, adequate data
exist to document the health risks
associated with radioactive uranium
and phosphate wastes. They asserted
that: (1) EPA date indicate that the
health risks from phosphogypsum stacks
and ponds exceed the Agency's
acceptable levels by a factor of eight (2)
phosphogypsum piles are located in
anas of heavy rainfall where leaching
of wastes ocean, end (3) the piles are
located in heavily populated areas and
in dose proximity to ground water.
Therefore, they contended.
 phosphogypsum should be regulated as
 a hazardous waste. EPA's failure to
 consider radionudides as hazard is
 arbitrary, especially since EPA has
 previously recognized that waste with
 20pCl/g constitutes more than a low
 level hazard and the EPA Draft
 Background Information Document
 entitled "Radionuclide Emissions from
 Phosphogypsum Stacks-Risk
 Assessment" shows phosphogypsum to
 hare aa avenge radium 228
 concentration of 31 pCi/g. plus
 significant levels of other radionudides.
 The commenters also expressed concern
 over the disposal of phosphogypsum
 filter pan residue on these piles as the
 residue has concentrations of
 radionudide 2 to 3 orders of magnitude
 higher than normal phosphogypsum.
   EPA has reviewed these comments
  and has elected to retain
  phosphogypsum within the Bevill

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36628     Federal Register / VoL 54, No. 169  /  Friday. September 1, 1989 / Rules and Regulations
exclusion because it passes all of the
final Bevill mineral processing wastes
criteria. Hie type(s) and magnitude of
risk posed by this material, including its
radioactive constituents, will be
addressed in the forthcoming Report to
Congress.
  The Agency also wishes to reiterate
its position regarding the definition of
phosphogypsum, as articulated in the
April NPRM. Phonphogypsum and the
process water that is used to remove it
to disposal represent two separate
waste streams that could, if the industry
desired, be managed separately. The
Agency understands that when the
phosphogypsum waste stream leaves
the mineral processing circuit it is not
entrained in the process water, but is a
semi-solid residue from a filtering
operation. The solid waste is then
entrained in the process water in order
to transport the waste to gypsum stacks
for disposal. While alternative transport
systems may be impractical, the fact
remains that there exist two waste
streams capable of being managed
separately which must be considered
separately for this rulemaking.
Therefore, only phosphogypsum will be
unconditionally retained within the
Bevill exclusion for today's ruling.
  EPA will address the status of process
wastewater from phosphoric acid
production, including its components
(i.e., the gypsum stack run-off issue) in
the September, 1989 proposal

5. Slag From Elemental Phosphorus
Production
  Commenters supported EPA's
proposal  to retain slag from elemental
phosphorus production within the Bevill
Amendment They claimed that
phosphorus industry materials streams
are generated by "mineral processing"
operations as defined by the EPA. are
high volume wastes, and are not high
hazard wastes.
6. Furnace Scrubber Slowdown From
Elemental Phosphorus Production
  Some commenters supported EPA's
proposal  to retain furnace scrubber
blowdown from elemental phosphorus.
production within the Bevill
Amendment. They claimed that
phosphorus industry materials'streams
are generated by "mineral processing"
operations as defined by the EPA. are
high volume wastes, and are not high
hazard wastes.
  Other commenters objected to
including furnace scrubber blowdown
within the Bevill exclusion. They
contended that furnace scrubber
blowdown from phosphorus production
cannot be considered low hazard under
any reasonable definition. Of the two
plants sampled in a study contracted by
EPA. both plants yielded samples that
exceeded 100 times the MCLs for alpha
particle radioactivity, radium-226, or
both. One plant exceeded the EP
standard for cadmium, while the other
exceeded the MCL for arsenic by more
than 10-fold, and exceeded the 10-5
cancer risk level by almost 850 fold.

7. Acid Plant and Scrubber Blowdown
from Primary Copper Processing
  Several commenters argued that acid
plant blowdown and Lurgi scrubber
effluent should be retained in the Bevill
exclusion because they meet both the
high volume and, at least at some
facilities, the low hazard criteria. One
commenter asserted that acid plant and
scrubber blowdown from primary
copper processing should not be
eliminated from the Bevill Amendment
based on its failure of EPA's low hazard
test They stated that the Agency should
consider the burden of compliance for
sectors eliminated from the Bevill
exclusion. The commenter that claimed
to have a low hazard waste stated that:
(1) Their alkaline tailings are mixed with
the waste which neutralizes the
blowdown/Lurgi mixture, and (2) metals
in the waste, by operation of internal
chemical processes, become tightly
bound in the matrices of various
complex hydroxides contained in the
tailings in which they are mixed, thus
producing a ™<"ip"i risk of leaching.
Therefore, the representative samples of
the Lurgi/blowdown/tailings mixture  •
are not EP toxic. Additionally, they
contended that the mixture poses no
threat of release into the environment
because the waste is deposited in a
t«iUng« pond on a deep tailings  base
which serves as an effective seal from
migration into soil or groundwater, the
waste is deposited a great distance from
HrinUng water, ""^ the commenter's
facilities an located in an arid.
unpopulated region.
  Other commenters agreed with EPA's
proposal to remove add plant and
scrubber blowdown from primary
copper processing from the Bevill
exclusion, arguing that blowdown from
primary copper processing cannot be
considered low hazard under any
reasonable definition. They noted that
the waste sampling effort conducted for
the draft Report to Congress revealed
that all samples of copper add plant
blowdown exhibited the EP toxidty
characteristic. In addition, they
indicated that the waste contained
elevated leachable levels of arsenic.
cadmium, and mercury, and that the
add plant blowdown samples exceeded
EP characteristic trigger levels: the
mercury concentrations exceeded by up
to 98.5 times, and the cadmium
concentrations exceeded by a factor as
high as.24.5. They also noted that water
extraction sampling also revealed that
the7 waste contains leachable arsenic
and cadmium at concentrations
exceeding the EP trigger level They
contended that data from the Draft
Report to Congress demonstrate
exceedances of the AWQC for copper
smelting slag; cadmium exceeds the
AWQC by up to 25.000 times, arsenic by
up to 1.930 times, and mercury by up to
30.000 times.

8. Add Plant Blowdown from Primary
Lead Processing

  One commenter contended that acid
plant blowdown from primary lead
processing should not be eliminated
from the Bevill Amendment based on its
failure of EPA's low hazard test. The
commenter maintained that lead
processing add plant blowdown and
scrubber blowdown fall within the
definition of process wastewaters and
meet the high volume criterion;
therefore, the waste should be studied.

9. Air Pollution Control Scrubber
Blowdown from Primary Tin Processing

  The single tin processor in the U.S.
submitted in response to the October
NPRM that it generated on average
68,000 metric tons of blowdown, which
they claimed is a relatively dilute stream
in the neutral pH range, and is similar to
smelters in the lead and copper
smelters. No comments were received in
response to the April NPRM.
  EPA need not address hi detail the
comments on the hazard status of
phosphorous furnace scrubber
blowdown and add plant blowdown
from copper, lead, and tin. These liquid
wastes all fail the volume criterion.

m. Final Criteria for Defining Bevill
Mineral Processing Wastes
A. Definition of Mineral Protesting
Wattes

  For purposes of this rale, mineral
processing wastes are generated by
operations downstream of beneficiation
(as codified by today's rule) and
originate from a mineral processing
operation as defined by the following
       its:
   (1) Exduded Bevill wastes must be
 solid wastes as defined by EPA.
   (2) Exduded solid wastes must be
 uniquely associated with mineral
 industry operations.
   (3) Exduded solid wastes must
 originate from mineral processing
 operations that possess all of the
 following attributes:

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           Federal Register / VoL 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations  '   38629
  a. Follow beneficiation of an on or
mineral (if applicable);
  b. Serve to remove the desired
product from an ore or mineral, or from
a benefidated ore or mineral or
enhance the characteristics of ores or
minerals, or benefidated ores or
minerals;
  c. Use mineral-value feedstocks that
are comprised of less than 50 percent
scrap materials:
  d. Produce either a final mineral
product or an intermediate to the final
product and
  e. Do not combine the product with
another material that is not an ore or
mineral, or beneficiated ore or mineral
(e.g., alloying), do not involve
fabrication or other manufacturing
activities, and do not involve further
processing of a marketable product of  .
mineral processing.
  (4) Residuals from treatment of
excluded mineral processing wastes
must be historically or presently
generated and must meet the high
volume and low hazard criteria in order
to retain excluded status.  .
  Benefication operations include
crushing, grinding, washing, dissolution.
crystallization, filtration, sorting, sizing,
drying, sintering, pallatizing, briquetting,
  Itining, roasting in preparation for
leaching (to produce a final or
intermediate product that does not
undergo further beneficiation or
processing), gravity concentration,
magnetic separation, electrostatic
separation, flotation, ion exchange,
solvent extraction, electrowinning,
precipitation, amalgamation, and heap,
dump, vat. tank, and in situ leaching.
  Processing operations generally
follow beneficiation and inrU"i*
techniques that often destroy the ore or
mineral such as smelting, electrolytic
refining, and add attack or digestion. .
EPA also wishes to emphasize that
operations following the initial
"processing" step in the production
sequence are also considered processing
operations, irrespective of whether they
involve only the technique* defined
above as fan*Kld9tttm Therefore, solid
wastes arising from soch opemtii
considered mineral processing waates.
rather than benefidation wots*.
S. ThtHigh Vahaat Crituton
  High volume mineral processing
wastes an defined as (1) non-liquid
                                 are
mineral processing wastes that were
generated at an average annual rate of
greater than 45.000 metric tons per year
per facility, and (Z) liquid mineral  •  " •
processing wastes that were generated
at an average annual rate of more than /
1.OOQ.OOO metric tons per year per
facility during any year between 1983
end 1988.
  For the purposes of this rulemaking.
the volume criterion for non-liquids has
been and will be used to determine if
both solid (e.g., slag, phosphbgypsum)
and semi-solid (e.g* weste treatment
sludge) materials are high volume. The
volume criterion for liquids has been
used to determine whether wastewaters
and ether aqueous wastes are high
volume. Professional judgment will be
employed in deciding which criterion to
apply to a particular waste stream. The
Agency considered the possibility of
using a quantitative measure, such as
percent solids, to distinguish between
liquid and non-liquid materials, but
concluded that such an approach would
lead to results  that are inconsistent with
the purpose of employing separate
criteria for defining large volume liquid
and large volume non-liquid wastes.
Specifically, the solids content of some
liquid wastes generated by mineral
processing operations may be higher
than the solids content of some sludges
resulting from  the treatment of other
mineral processing wastes, in spite of
the fact that a  major volume reduction
operation (such as settling) has yet to be
performed on the untreated liquid waste.
Therefore, use of quantitative criteria
might result in inappropriately
considering a waste that has a solids
content above the cut-off bat for which
additional volume reduction is likely
(such as may occur as a result of
treatment and discharge of wastewater).
to be large volume, or vice vena.
  The final volumetric cut-offs
presented hen reflect some of the
largest quantities of individual and
identifiable waste streams managed at
facilities that an* currently in the
Subtitle C regulatory system. EPA
developed the information supporting
 these cut-offs  in direct response to
 comments reflecting both sides of this
 issue criticizing the Agency's less
 complete justification of the volume
 criterion cut-off values contained in the
 October and April proposals. For each
 facility responding to EPA's TSDR
Survey (discussed above), the Agency
first determined whether they operated  ^
an on-site hazardous waste landfill or~
on-site hazardous wastewater .  .
management units (wastewater
treatment systems, treatment tanks,
surface impoundments, or underground
injection wells). Data pertaining to
landfill disposal were used to develop
the criterion for non-liquids and data
regarding wastewater management units
were used to derive the criterion for
liquids. Because mineral processing
wastes are typically inorganic, any
solid/sludge materials that are solid
wastes and are not recycled and might
be regulated under subtitle C would
have to be disposed in a subtitle C
landfill Therefore, establishing a
volume criterion for these materials
requires analysis of hazardous waste
disposal In subtitle C landfills. Similarly,
because liquid mineral processing
wastes are generally aqueous and thus
may be managed using one or more of
several different techniques. EPA
analyzed all of the significant
technologies employed  to manage
hazardous wastewater under subtitle C.
In both cases, the Agency identified the
largest individual waste stream
managed by an appropriate technique at
each facility (i.en one hazardous waste
stream per facility), then computed
univariate statistics on the resulting
distribution. (This is the same basic
approach used by certain conunenters
who proposed volume cut-offs utilizing
data from EPA's 1985 Biennial Survey.)
The final volumetric criteria represent
 approximately the largest individual
 waste stream managed by the facility at
 the 95th percentile of the relevant
 distribution. Relevant data are
 presented in Table 1. The Agency
 believes that the 95th percentile of the
 largest individual waste stream
 managed at each facility both provides a
 meaningful measure of the amenability
 of subtitle C controls to different waste
 types, and represents a reasonable
 overlap between Subtitle C wastes and
 Bevill wastes. EPA also notes that this
 value is a compromise between
 commenters that favored using the 99th
 percentile and those that favored the
 90th percentile.

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          36630     Federal Register / Vol 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
                                 TA8LE1.1—UNIVARIATE STATISTICS ON SOLID AND LIQUID HAZARDOUS WASTES

                                                  CAI quanWM * mrtric ton* mmotd In 19(61

Pcfccfittet
ton

o*
an
•»«
Nu«h« ,rf taatt_

Safe*
lOt-Mf
»».*r» «r 194,919 » 	 	 	 .,.
41,S40«r J4,1B9 ,.,., 	
ai.iiflit 4* 31,744 	
lOfrnifr inji« 	
•»

/ wuM^Mtn
44JO7857
4 .589 .261 or 4 999 573
1 098 412 or 1 112,600
346,230 or 356,224
49 039 Or 49 105
964

             1 For a (MUMd teuwon of «h» derivation of VMM data »M ttw docket for tN« rufcmaking.
             • Th» two attomm nurMMr* r*ftact rwutts using MO drtfowm and i
          unorainty win rmpact to owl portion ol Ow ttwAutwa
                          tor computing unwariM SMMcs. Largo dNtaraneM Meat* ngnMcant
I
            The Agency believes that by
          developing the final volume criterion in
          this manner, it has resolved all of the
          significant issues raised in public
          comment on the high volume criterion
          presented in the two proposed rules.
          First the basis of comparison (recent
          Subtitle C waste management) is the
          most relevant to addressing the question
          at hand (amenability to Subtitle C
          controls). Second, the way in which the
          comparison was developed is more
          internally consistent than in the
          previous analysis; EPA developed a
          criterion from data on hazardous waste
          management of individual waste
          streams and will apply this criterion to
          individual mineral processing waste
          streams. Third, the two separate criteria
          that an presented here reflect the highly
          significant differences in treatment
          processes and treatment residuals
          management options that exist between
          nonliquid and liquid wastes. As stated
          in the April NPRM. it is more technically
          feasible to manage large volumes of
          wastewater than it is to manage large
          volumes of solids, because wastewater
          treatment effluent (by far the largest
          treatment residue in most cases) can
          typically be discharged or recycled
          while solids must often be land*
          disposed. Finally, in developing this
          approach. EPA has reconsidered its
          earlier position and included
          commercial hazardous waste
          management facilities in the database
          used to develop the cut-offs for the final
          high volume criterion, because the issue
          at hand is technical feasibility of
          Subtitle C waste m"Mffttnieat'
          considerations of differential economic
          incentives facing operators of
          commercial and private hazardous
          waste management facilities are not
          relevant in resolving this issue.
          Therefore, the Agency selected a volume
          criterion of 45.000 metric tons per year
          per facility for non-liquid mineral
          processing wastes and 1.000.000 metric
          tons per year per facility for liquid
          mineral processing wastes to
          correspond to approximately the 95th
percentile (and rounded off so that the
criterion could be easily expressed; the
rounding had no effect on any waste
stream's status).

C The Low Hazard Criterion

1. The Toxicity and Mobility Test

  A high volume mineral processing
waste is not low hazard and, therefore,
is not eligible for  the temporary
exclusion from Subtitle C requirements
provided by the Bevill Amendment it
  • Available data indicate that waste
extracts obtained using EPA Method
1312 and analyzed using established
SYV-840 methods contain concentrations
of arsenic, barium. t^Hminm, chromium.
lead, mercury, selenium or silver that
exceed 100 times  the MCL for the
constituent at two or more faculties that
generate the waste, unless:
  L The waste is generated at five or
more facilities; and
  ii. Substantial additional relevant data
are available and the preponderance of
these additional data indicate that the
waste should be considered low hazard.
when:
  a. Relevant data an denned as data
that result from analysis of waste
extracts obtained by EPA Methods 1310,
1311. and 1312. ASTM Test Method
D39B7-B1. or comparable procedures
that the Agency has nason to believe
produce nliable and representative
data; and
  b. To be considend substantial, the
additional data must characterize the
waste at 3 plants  (other than those two
plants when Method 1312 results
exceed 100 times  the MCLs) or at least
half of the facilities that generate the
waste (other than those two plants
when Method 1312 results exceed 100
times the MCLs).  whichever number of
plants is larger.
  • Constituent concentrations
measured in waste sample extracts
obtained using Method 1312 an used to
determine facility-level values as
follows:
  L If data for only one sample of the
waste an available, then these data
determine the facility-level constituent
concentrations; and
  ii. If data on two or mon samples an
available, then the lower bound of the
60 percent confidence interval of the
mean of the data 7 serves as the facility-
level constituent concentrations, when
the  confidence interval is calculated for
each waste for each constituent using all
results (from all plants generating the
waste) available from testing of 1
waste using Method 1312.
  This criterion is mon complicated
than the low hazard criterion proposed
in April in two respects: (1) It requires
that the 80 percent confidence interval
for the mean be calculated for each
constituent and each waste type; and (2)
It requires consideration of data other
than Method 1312 results, including data
based on Method 1310 and 1311 that
wen provided in public comments or in
response to the mineral processing
waste survey or the "3007 letter" request
for waste characteristics information.
  Nonetheless. EPA believes that these
modifications  era appropriate because
they allow EPA to make use of data that
the Agency specifically requested that
industry provide, while avoiding biases
inherent in other alternatives for
              data. Moreover, the
revised low hazard criterion is directly
responsive to commenten who
indicated that it was inappropriate. La-
inconsistent with the spirit of the Bevill
exclusion, for a screening criterion to
remove the exclusion from a waste that
"fails" the low hazard criterion at two
facilities while "passing" the criterion at
many mon other faculties.
  •ThcSOi
                         alto
         I (fridanca) In chapter 9 OB
IB SW-SW M the confidence totem! to bo uMd tat
evabadni whiter W*MM DM* or hit rtfulatoiy
toehold*. BMMM the low baud criterion to
beta* •MdMncmninstnt to nmarawutn
that an doattjr oot loir ouud from IB* BeviU
SO pa
                   ral with the leievent

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           Federal Register / VoL  S4. No. 16& / Friday. September 1. 1989 / Rules and Regulations     38631
2. The pH Test

  A high volume mineral processing
waste is not low hazard and. therefore,
is not eligible for the temporary
exclusion from Subtitle C requirements
provided by the Bevill Amendment i£
  • Fewer than five facilities generate
the waste and thepH (determinedas
required by 40 CFR 261.22) is less than
one (1) or greater than 13.5 at two or
more facilities that generate the waste,
or if five or more facilities generate the
waste and the pH is less than one (1) or
greater than 13.5 at 50 percent or more
of the facilities that generate the waste.
  • pH values measured for waste
samples are used to determine facility-
level values for individual candidate
low hazard wastes as follows:
  i. If a datum for only one sample from
a facility is available, this datum
determines the facility-level pH; and
  11. If data on two samples from a
facility are available, the lower value
determines the facility-level pH; and
  iii. If data on more than two samples
from a facility are available, the median
value defines the facility-level pH.
  The changes to the pH test from the
April NPRM (i.e., the protocol for
considering additional data) were made
for the same reasons as discussed above
wijh respect to the toxicity and mobility
test

IV. Final Bevill Status of Selected
Mineral Processing Wastes

  The present status of all candidate
Bevill mineral processing wastes that
were proposed either for retention
within or removal from the exclusion in
either the October or April proposals is
presented in Table 2.
           TABLE 2.—CURRENT STATUS OF PREVIOUSLY PROPOSED CANDIDATE BEVIU MINERAL PROCESSING WASTES


Ptiirrttt
RaiyttiVm 	

canum
Chromite 	
CoalOas 	


Plomanul Phnoplmua


km



•XJ*««h-k_^-«l
•.—•••VJua^MMMa*
Phosphoric Add 	
Sod* Atfi 	
»**
•n.


Z«e
•


Waste strewn
n*J and Brawn Muds
BamnPa*!*

Ptoeetsmg Rafflnate ____________
Process Water 	
ROMl/LMCh Of* Residue 	
Cooang Tower Slowdown 	
n^W-rA*.
Add Ptam Scrubber Slowdown 	
BlMd Electrolyte 	
r>«<*-« ft*itt S^rtjt trem WWT 	 _ 	 	 	
StaoTBjKntr

Stag 	
Ruoiogypeum

Rta-t CutMR. Stag
Ammonium MHrM- nmr-.ii St^flHf, 	 	
Stag 	

Seler»an PI EMuentiromPrc caning APB 	
Phasphogypaum 	 ~ 	
c*_i pas -A OHP> APT n-./a-.ta-
9_Ml (HOT •"* 0»«1 "fa „







Status
ftaafrwi
Remover*

Removed 	
Removed 	
Removed 	
Conttton-ty Retained 	
Removed 	
Removed 	
CondttonaSy ReMnod 	
"••"""<
ReWnad 	
Removed 	
"— ^



CondMonely Retaned 	
ltamM-4 	
OendMoneSy nemned 	
Removed 	
" 	 ''
rontfrttorsfly nsiamsrt

Removed 	





Reason tor BevBl Status



LowVdurae.
LowVokme.
Passes Mgn Volume.
LmVokjme.
LowVokme.
LowVosjme.
LowVokme.
Passes al CrUerta.
Paaees Hglt Vokme.
LowVokme.
LowVokme.
Passes si Criteria.


Passes Hgh Volume.
Low Volume.
LowVokme.
Passes High Vokme.
Paiiii el Criteria.
LowVokme.
Paaeas Hgh Vokme.
LowVokme.
Peases as Criteria.

LowVokme.
LowVohm.
PSMW KiQh VolunM.
Low Vokme.
tow Vokme.

  For today's final rule. EPA has applied
the criteria described above to all waste
streams for which it has sufficient
information to make regulatory
decisions. The data supporting these
decisions were provided in the October
and April proposals. Based upon these
data and new sampling and analysis
results (Method 1312) which may be
found in the docket for today's rule, the
following five wastes an retained
within the Bevill exclusion:
  1. Slag from primary copper smelting;
  2. Slag from primary lead smelting:
  3. Red and brown muds from primary
bauxite refining:
  4. Phosphogypsum from phosphoric
 add production: and
  S. Slag from elemental phosphorus
 production.
  EPA has determined that each of
 these materials meets the definition of a
 waste from mineral processing        -
 operations, is generated at an annual

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  36632    Federal Register / VoL 54.  No. 169 / Friday. September 1. 1988 /  Roles and Regulations
;  rate exceeding the relevant final volume
  criterion (45400 metric toni per year per
  facility for nonliquid wattes) and pastes
  the final low hazard criterion (Le.. does
  not fail the toxidty and mobility or pH
  tests at two or more facilities).
   Twenty wastes are conditionally
  retained within Bevill because they
  appear, based upon currently available
  data, to meet the final high volume
  criterion: the data needed to implement
  the low hazard criterion for these
  wastes, however, la currently
  unavailable. Moat of these wastes were
  proposed for conditional exclusion in
  the April proposal. Two wastes (process
  wastewater from hydrofluoric acid
  production, and APC dust/slurry from
  carbon steel (open hearth and basic
  oxygen furnace) production) have been
  edded because of information received
  in public comment on the April notice,
  as interpreted by best professional
  judgment
   Eighteen specific wastes proposed
  either for conditional retention or for
  removal on the basis of hazard, in
  addition to the list of small volume
  wastes provided in the April NPRM (see
  54 FR 15343-4) (or any other small
  volume or speculative wastes, whether
  or not nominated for conditional
  exclusion), are hereby removed from the
  Bevill exclusion. All are liquid wastes
  that are generated in quantities well
  under the final one million metric ton
  per year per facility cut-off, based upon
  available EPA data and data submitted
  to the Agency in public comment
   Finally, a small number of wastes that
  EPA either proposed for retention in
  April or were nominated in public
  comment on the October or April
  proposals have been redasaified as
  benefidation wastes, and hence will be
  addressed by the RCRA subtitle D
                   extraction and
currently d
are not limi
       dation wastes that EPA is
developing. Th
                                T. oat
                                 .
           ted to. wastes from trona on
 slurry from primary berylliam
 production (both propoeed in April), and
 sulfate leach ore residue from primary
 copper production (nominated by a
 commenter on the April NPRM).

 V. Schedule f or Ftaal Resolution of
 B^vfflSUnu for All Remaining
 Candidate Bevill Mineral Processmg
 Wastes
   As discussed above, the Bevill  status
 of all potential high volume, low hazard
 mineral processing wastes win be
 proposed by EPA by September 15. 1980.
 Following receipt and analysis of public
 comments on these proposed exclusion
 decisions, the Agency will articulate
 final action on each candidate BevUl
                              waste in a final rule by January 13. 1900.
                              At mis time, the universe of Bevill-
                             . excluded mineral processing wastes will
                              be established, and no additional
                              wastes will be added.
                                Today's final rule includes a revised
                              lilt of conditionally retained wastes (see
                              Table 2, above). Modifications to this
                              list which was originally published in
                              the April NPRM. have been made to
                              reflect new information received in
                              public comment on the April notice, azd
                              professional Judgment in applying the
                              final Bevill mineral processing wastes
                              criteria to EPA's data on the specific
                              mineral production operations that
                              generate candidate Bevill wastes and on
                              waste generation rates. Some of the
                              wastes designated today as being
                              conditionally retained wastes may be
                              proposed for removal from the Bevill
                              exclusion in September if the survey
                              and/or waste sampling and analysis
                              data that the Agency is currently
                              collecting indicate that they do not pass
                              both the high volume and low hazard
                              criteria. In no event however, will
                              additional mineral processing wastes be
                              considered for retention within the
                              Bevill exclusion.

                              VL Regulatory Tff

Effective Dates of the Final Rule

  As of the effective date of this final
rule, mineral processing wastes that
have been temporarily excluded' from
regulation under subtitle C of RCRA
since 1980, except the 25 "special
wastes" described above, may now be
subiect to subtitle C requirements
beginning in February 1990 (Le, six
months after this notice appears hi the
Federal Register) in those states that do
not have authorization to administer
their own hazardous wastes program in
bn of EPA. Generators, transporters.
and TSD facilities m authorized states
wffi bo subject to RCRA requirements
taBposedese result of this rule only
after the state revises its program to
adopt equivalent requirements and EPA
authorizes the revision. The
requirements imposed as a result of

                     ether the solid
                              waste(s) exhibit hazardous
                              characteristics (40 CFR 262.11):
                              obtaining an EPA Identification number
                              far managing hazardous wastes (40 CFR
                              26234); complying with recordkeeping
                              and reporting requirements (40 CFR
                              262.40—282.43): f nd obtaining >"*f<™
                              status and seeking a permit (or
                              modifying interim status, including
                              permit applications or modifying a
                              permit as appropriate) (40 CFR part
                              270). .
A. Section 3O10 Notification

  Not later than November 30.1989. all
persons who generate, transport treat
store, or dispose of wastes removed
from temporary exclusion by thtf rule
and which are characteristically
hazardous under 40 CFR part 261.
subpart C, will be required to notify
either EPA or an authorized State of
these activities pursuant to section 3010
of RCRA. Notification instructions are
set forth in 45 FR 12746. February 28,
I960. Persons who previously have
notified EPA or an authorized State of
their activities pursuant to section 3010
of RCRA, Len persons who previously
have notified EPA or an authorized state
that they generate, transport, treat store
or dispose of hazardous waste and have
received an identification number (see
40 CFR 282.12.263.11 and265J) need not
re-notify.* Persons without EPA
identification numbers are prohibited
from generating, transporting, treating,
storing, or ^ftypoting of *»»*«»d
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Federal Register / VoL 54. No, 168 / Friday. September 1. 1088  / Roles mad  Regulation*    36633
1991. If the facility fails to do so. interim
status will terminate on that date.
  Completion of final permit application
will require individual facilities to
develop and compile information on
feeir on-site waste management
operations including, but not limited to
the following activities: ground-water
monitoring (if waste management on
land is involved); manifest systems,  •
recordkeeping. and reporting: closure.
and possibly, post-closure requirements;
and financial responsibility
requirements. The permit applications
may also require development of
engineering plans to upgrade existing
facilities. In addition, many of these
facilities will in the future, be subject to
land disposal restrictions (LDR)
standards. EPA plans to promulgate
LDR standards for all characteristic
hazardous wastes by May 8.1990. Under
EPA regulations, these standards must
require treatment of the affected wastes
to a level or by a method that reflects
the use of Best Demonstrated Available
Technology (BOAT) before the wastes
can be disposed on the land. Thus, one
future implication of today's final rule
will be the ban on land disposal of these
wastes unless they are appropriately
treated prior to such disposal (See
discussions of the LDR as related to
these wastes for further details).
   Ail existing hazardous waste
management facilities (as defined in 40
CFR 270.2) that treat store, or dispose of
hazardous wastes covered by today's
rule, and that are currently operating
pursuant to interim status under section
3005(e) of RCRA. must file with EPA an
amended part A permit application by
March 1.1990. in accordance with
i 270.72(a).
   Under current regulations, a
hazardous waste management facility
that has received a permit pursuant to
section 3005 may not treat store, or
dispose of the wastes removed from
temporary exclusion by today's rule and
which an characteristically hazardous
under 40 CFR part 261. •ubpartC when
the rule become* effective OB Msirh 1.
 1990. until a permit modification
 allowing such activity h
                    d in
need not seek interim status. Any
facility treating, storing, or ifitpin-lng of
these wastes on or before the effective
date of authorization of the State to
regulate these wastes under RCRA may
qualify for interim status under
applicable State law. Note that in order
to be no less stringent than the Federal
program, the State "hi existence" date
for determining interim status eligibility
may not be after the effective date of
EPA's authorization of the State to
regulate these wastes. These facilities
must also provide the required 3010
notification as described above and
must also provide the State's equivalent
of a part A permit application as
required by authorized State law.
  Finally. RCRA section 3005(e)(3) or
any authorized State analog will apply
to land disposal facilities qualifying for
State interim status.
VH. Effect on State Authorizations
  This final rule is not effective in
authorized States, because its
requirements are not being imposed
pursuant to the Hazardous and Solid
Waste Amendments of 1984. Thus, this
removal from temporary BKcluf'wi is
applicable on March J, 1990. only in
those few States that do not have final
authorization to operate their own
hazardous waste programs in lieu of the
Federal program. In authorized States,
the reinterpretation of the regulation of
non-excluded processing wastes will not
be applicable until the Stele revises its
program to adopt equivalent
requirements under State law and
receives authorization for these new
requirements. (Of course, the
requirements wfll be applicable a* a
State law if me State law is effective
prior to authorization).
  State* mat have final authorization
are required (40 CFR 271^1(«D to revise
 their programs to adopt equivalent
         i regulating non-Bevill mineral
         g wastes mat exhibit
 	i characteristics as hazardous
 by July 1.M01. if only regulatory
 changes are necessary, or by lulyl.
 1992. if statutory changes are necessary.
                                                                           administer and enforce them as a matter
                                                                           of law.
                                                                             States mat submit an official
                                                                           application for final authorization less
                                                                           
-------
           36634     Fadswal Register / VoL S4. No. 160 / Friday.  September 1. 1989 / Rules and Regulations
I
. not low hazard (baaed on currently
 available data) at on and mineral
 processing facilities. Therefore, the
 impacts of today's rule fall within any
 metal or non-metal commodity sectors
 generating such waste streams from
 mineral processing operations, but only
 to the extent that these wastes exhibit
 the characteristic tests for hazardous
 wastes under subtitle C of RCRA.
   EPA's impact assessment indicates
 that today's rule is not a major rule (at
 least according to criterion 1. above), in
 that preliminary screening-level
 estimates place the total annual costs of
 compliance at about $53 million per
 year. Because this is a screening level
 analysis, however, the level and
 distribution of impacts is uncertain. It
 does appear that a few individual
 mineral commodity sectors or
 processing technologies could incur
 annual costs in the range of one to seven
 percent of their annual value of
 shipments (sales). These sectors or
 technologies, though few in number and
 small in total value of shipments relative
 to the 101 commodity sectors reviewed
 in the study, could be said to incur
 moderate to substantial impacts.
 Overall, however, with respect to the
 mineral industry as a whole or the
 portion of the industry that performs
 "mineral processing" in particular, the
 Agency believes, on the basis of its
 screening analysis, that today's rule
 does not constitute a major rule within
 the context of E.0. 12291.

 A. General Approach to Compliance
 Coat Estimation
   The purpose of this analysis was to
 assess the general level of costs and
 resultant economic impacts arising from
 the imposition of current subtitle C
 requirements on smaller volume mineral
 processing wastes and high volume
 wastes that an not low hazard that
 wen previously exempt under the BeviO
 Amendment As noted above, a
 complete and detailed examination of
 the costs and potential impacts of
 today's rule was not possible giv
 Court-ordered schedule
           level review of all
           affected directly by today's rale.
            ZPA's economic screening
           methodology consisted of a number of
           straightforward steps designed to (1)
           identify and describe all mineral
           processing sectors. (2) characterize and
           determine the approximate quantities of
           nlevant waste streams, and (3) estimate
           the subtitle C compliance costs for all
           sectors generating potentially hazardous
           wastes. This section briefly describes
           the approaches and information sources
 used to develop these preliminary cost
 estimates. The following two sections
 describe the cost estimates and discuss
 impacts on affected sectors. Additional
 information concerning the techniques.
 assumptions, and data sources used in
 this analysis may be found in a
 technical background document in the
 docket for today's rule.*
 1. Processing Sector Identification
   The starting point for the analysis was
 to identify mineral industry commodity
 sectors that conduct mineral processing
 operations within the definition of
 today's rule. Obviously, facilities in
 sectors that do not employ such
 operations will not experience any
 economic impacts. Working with the
 U.S. Bureau of Mines, the Agency
 identified a  total of 101 differentiable
 mineral commodity sectors for initial
 review. Those specific sectors that
 employ mineral processing operations
 wen identified by intensive contact
 with commodity and technical
 specialists at the U.S. Bureau of Mines,
 and by consulting outside mineral
 industry experts particularly
 knowledgeable of specific industry
 production techniques and waste
 management practices. Of the 101 initial
 sectors, 43 wen identified as domestic
 mineral commodity processing sectors
 subject to further analysis and review of
 waste stnam characteristics. Of the 58
'remaining sectors, 51 commodity sectors
 wen screened out as not conducting
 processing (Len their finished product
 resulted directly from benefication
 activities). The commodities produced
 domestically using extraction and
 benefidation operations exclusively an
 listed in appendix A. An additional 7
 mineral commodities an not currently
 processed in the United States. These
 include arsenic trioxide, cobalt gallium.
 gnphite. Jntlhim, n<«Jryl  ami thalHimi
   It it highly noteworthy that the vast
 majority of mineral commodities listed
 in appendix A an non-metallic •*"* that
 only nine of the 43 domestic sectors
           mineral processing
                                        operations produce non-metallic
                                        commodities. Thus, the first conclusion
                                        that EPA may draw from this screening
                                        analysis is that the results from previous
                                        cost and impact studies focusing on
                                        iM»«in« on processing sectors an not
                                        likely to dramatically undenstimata
                                        total regulatory compliance costs
                                        associated with this rale, as some
                                                 » have persistently claimed.
                                          USEPA. "T«dmte»l Bictsiiiunii
                                                                                        2. Waste Characterization
                                                                                         The next step was to identify,
                                                                                        quantify, and characterize the specific
                                                                                        waste streams generated by the 43
                                                                                        identified processing sectors in order to
                                                                                        ascertain the extent to which these
                                                                                        facilities might be brought into the
                                                                                        subtitle C hazardous waste management
                                                                                        system. For a few of these sectors, the
                                                                                        Agency had past field surveys or
                                                                                        sampling data to draw upon.
                                                                                        supplemented to some degree by data
                                                                                        submitted by commenters in response to
                                                                                        previous NPRM's. For the majority of
                                                                                        commodity sectors, however, we relied
                                                                                        upon technical expertise provided by
                                                                                        process engineers experienced in
                                                                                        designing and constructing mineral
                                                                                        processing facilities and associated
                                                                                        waste management systems.

                                                                                        TABLE  3.—MINERAL  PROCESSING SEC-
                                                                                         TORS  NOT GENERATING POTENTIALLY
                                                                                         HAZARDOUS   MINERAL  PROCESSING
                                                                                         WASTES
                                                                                        tayHunt
                                                                                        CMlUflt
                                                                                        CMum/Rubktum
                                                                                        QvoflMn
                                                                                        GoelGM
GoU/S
Hydraauoric Add
tan
UghMtfgN Aggrag
IMNun (torn era)
MsgnMiun (horn era)
                                                                                        Ptwhertc Add (w« proo«»g)
                                                                                        Ztaorium/HeMm
 of ttw B«*iU
 WMtH-.AufMtlS.lSSS.
                                                    AiMaf boa Uw RrintarpnUUoa
                                                        far MOM! Precmnaf
  For each sector, a brief but systematic
review was conducted for the principal
or typical processing operation(s).
including, for each waste, a waste
description, waste generation-to-product
ratio estimates, and an assessment of
the likelihood of the particular waste
exhibiting one or more hazardous waste
characteristics. Based upon available
information and best professional
judgment. 25 of the 43 mineral
processing commodity sectors evaluated
wen found not to generate any solid
wastes that an likely to fail
characteristic tests for hazard. Because
mete sectors, which an listed in Table
3. will not suffer economic impacts
because of today's final rule, they were
not considered further. A total of 18

-------
            Federal Register /  Vol. Si. Na 169 / Friday.  September 1. 1989 / Rules and Regulations     3B635
 commodity sectors with 118 facilities
 were determined likely to generate
 wastes that may fail hazardous waste
 characteristic tests. EPA has made every
 attempt to develop analytical elements
 (e.g., number of facilities in a given
 sector) that an directly comparable.
 Nonetheless, because production data
 (processes employed, product types.
 shipment volumes) for soma
         commodities are not avaiidble on a
         plant-specific basis, the number of
         facilities identified as generating
         potentially hazardous wastes does not
         in all cases correspond to the number of
         facilities producing a given commodity.
         because very different production
         processes may be employed within the
         same commodity sector. Therefore, the
         number of facilities contributing to a
                 vector's aggregate value of shipments
                 and other sector-wide data may differ
                 from the number of facilities predicted
                 to experience compliance costs. In these
                 cases/EPA may have understated the
                 magnitude of economic impacts.
                 Potentially affected sectors, together
                 with the types and quantities of wastes
                 that might be regulated under subtitle C,
                 are presented in table 4.
                        TABLE 4.—HAZARDOUS WASTE GENERATION BY MINERAL PROCESSING SECTORS
          Mineral aador
                                                                        Hmidous waste type
                                                                   Feciktie*

                                                                  na2drdous
                                                                    waste
                                                Total
                                               hazardous
                                              •ute(UT/
                                                year)
Aluminum.
                                Reduction	
Anfin
Bismuth	
Calcium MetaL
Deduction	«
Electrolytic Refining.
RotiduKls	
Lead dross refining...
Retorting	___..
                                                                Casthouse«jst_
                                                                Sludge..
                                                                Oyoile recovery residue.
                                Refining
Copper (ElectrawinninoJ.
Elemental Phosphorus __
Strippod anotyla solution solids.
Lead dust toactiata resUui	
Motai chloride residues		
Ouckime	
Acd pUntUowdown		
Sodum
  plant sludge.
Bleed electrolyte—
Broom MiteMter
Electiic furnace..
Separaton «..«.	
Smelting	
SofwBicn	
Furnace fcPw blowdown..
Dust..
Slags and resctum..
Magnesium —
Mercury	
Uwtuy.
Sm»lting..
Smelting..
Etodroiybc Refining _
McOermittfadhty.
Byproduct of gold..

Roasting	
                                                                Spent furnace dick ...
Smut		
                                Roating..
PaitkXkila oorttol effkient..^
Sd scrubber effluent	
Dust		--,		
Furnace residue	
Gas cleaning effluent solids.
Phoephoric Add-
                                Rhenium raffinaU.
                                Du
Tantalum/Columfaium _
                                Digestion.
Tin	
Titanium Metal-
On	
                                PtKMphata contaminted was'awater.
                                Uigcstor sludge—		
Smelting.
                                                                Ratfinats
Sponge.
APCscrubtx
                                Smelt*
                                Smamng/Reflnlna.
                                Add plcnt totowdOMriiw
                                Synthetic oypeum_
                                Wa
                                               nt plant sludgs
18
13

 1
 1

 1
 a
10
 6
 S
 8
 4
 I
 2
 1
 1
 1
 9
 9
 2
 2
 2

17

 •
 I
 3
 2
 3
 1
 6
 2
                                                                                   13.301
  80,000
     1JO
     333
   2.S37
     43
4.399.710
                                                                                                                  444£QO
                                                                                                                  S30£00
                                                                                                                  181,400
                                                                                                                       8
    530
  10.400
  21,708

   1,699
   2,782

     79
     64
   2.33S
  88.440
   7.394
   6.470
   8.707
   7.413
  68,000
  36.484
1.451,000
 305300
  16,600
                                                                                                                   13.600
                                                                                                                 6*80,200
3. Compliance Cost Estimation Methods

  For this analysis, EPA developed
likely waste management scenarios for
typical facilities in each sector.
addressing both current (baseline)
processing waste management practices
and waste management options under
current subtitle C requirements, lypical
practices (at appropriate scales of
application) for both baseline and
subtitle C compliance scenarios include
techniques such as wastewatar
treatment fan tanks, management/
disposal in waste piles or landfills, and
         shipment for disposal at commercial off-
         site landfills or treatment faculties.
         Tliese management scenarios were then
         implemented through the use of cost
         engineering functions to compute the
         incremental compliance costs of today's
         rule.
           The baseline management scenario
         was developed using knowledge of
         current practices. The subtitle C
         compliance scenario was developed
         based upon existing statutory and
         regulatory requirements, and
         assumptions regarding the types of
         engineering practices that would be
                 employed to manage individual, newly
                 hazardous wastes under subtitle C.
                 Rather than applying uniform subtitle C
                 assumptions relating to on-site or off-
                 site disposal or assuming that one
                 particular waste disposal practice would
                 be adopted exclusively for all sectors,
                 the Agency designed a tailor-made
                 subtitle C compliance scenario for each
                 waste stream and sector. That is, «ach
                 waste in each sector was assigned to a
                 sequence of individual waste
                 management techniques appropriate to
                 the physical and chemical
                 characteristics of the material in'

-------
36636     Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations
question, in such t way as to simulate a
miniitimq coct management practice
sequence for that waste type and
quantity. In cases where two or more
technical options existed for managing a
               type. EPA selected the
least-cost option for managing a given
particular waste type. EPA sele
waste quantity.
  For each newly hazardous waste
stream, an affected facility would be
faced with the choice of constructing
subtitle C management units or sending
the material off-site for disposal This
decision is influenced by economies of
scale; for most types of waste
management practices. EPA determined
that generators of small quantities
would pay for off-site disposal, but
generators of larger quantities would
construct on-site management units. The
waste quantity break points and the
data that underlie them are presented in
the technical background document for
this analysis.
  For all potentially hazardous mineral
processing wastes in  a given-sector. EPA
calculated baseline and projected
subtitle C management costs, at the
plant or facility level for a "model
plant" of average commodity processing
and waste generating capacity. Results
were then extrapolated to develop
commodity sector totals, and then
further aggregated to  4-digit Standard
Industrial Classification (SIC) industry*
wide totals and ILS. nationwide totals.
Annual compliance costs represent the
sum of annualized charges for capital
investments, operating and maintenance
expenses, and costs for on-site closure
and postclosure responsibilities, where
appropriate.
  Because this is a screening-level
analysis of a very large number of
industrial sectors that was conducted
during a short period of time, the results
of the analysis must be considered
somewhat uncertain. While EPA has
attempted to obtain complete coverage
of ail domestic mineral processing
activity, the depth of information that
the Agency has been able to develop is
variable. EPA is confident that it has
identified the major processing
operations and the major solid wastes
associated with them for each
commodity sector. The possibility exists,
however, that additional waste streams
generated by. these processing
operations may exist and may require
management under subtitle C of RCRA.
To the extent that this is true, EPA has
underestimated the compliance costs of
today's rule.
  It. is important to note, however, that
in many respects, EPA used
conservative assumptions in conducting
this analysis. For example, for many
sectors, the Agency used general
engineering or geologic information
about the nature and composition of
various' waste streams to infer whether
they would be hazardous, and, if in
doubt, adopted the conservative
assumption that they would be
hazardous. Furthermore, wastes
assumed to be or that tested hazardous
at one facility were assumed to be
hazardous at every facility in that sector
using the same or similar processes.
EPA also assumed that all affected
facilities would be encountering subtitle
C requirements for the first time and
would therefore not be able to take
advantage of scale economies through
comanagement of hazardous wastes
from other operations (e.g., in addition
to mineral processing they may conduct
regulated activities that are not covered
by Bevili such as chemical
manufacturing).

B, Aggregate and Sector Compliance
Coits
  EPA's estimate of the total annual
cost impact of today's rule is $524
million annually. Predicted sector-wide
costs span three orders of magnitude
across the various affected commodity
sectors. Aggregate and sector-specific
cost estimates are presented in table 5.
                TABLE 5. SUMMARY OF COSTS IN AFFECTED SECTORS WITH HAZARDOUS PROCESSINQ WASTES
SICMXi MOOT
Minmr




TWaT— iMft it>>Ttmft"0 ¥T>"nftt>
IW) — Tstc
3334 — AOT*r-"



TT19 Mtrnry fun tirf^y gottf ti| piuifuffgnt



3399— T1"
«nB_TMf«fe«^««0.M^l
3339-QwiMrtum 	
T8m ,ii ftcirt -"mf mwt —„,„,,, 	 —
DMribubon by tour-OgK SCK







MClWCOMi
9.111 000
907,000
4?44 MM
28.170000
906.000
9JHSOOO
7.820.000
3,107.000
11.000
2.000

IMAM
1.000
lAftODB
810,000
729400
728400
18400
0
££843.000
3,111.000
887.000
4,711 000
28.47a.000
2.843.000
7420.000
3,107.000
3478400
Nwnbvof
5
17
g
11
10


1







"


'109
s
17
$
'18
4
8
. 18
32
COM [NT
SNKM
tac*y(S)
m,F°
68,647
888,875
2478481
30400
736,750
1424.000
184.188
11400
2400
118400
159.000
111
743400
84,125
725400
242487
18400
0
S134SS
W22W
58447
888475
1454475
736.750
1424.000
184.188
121.188
Cost/fflMrtc
ion of
MMnllS/
rnXMOor-
writ)
948
148
4442
2744
2.47
748
. 2843
041
0.81
344
2.15
230.85
1.14
70.04
4*421
204.42
38.81
an
741
8.86
148
4442
2704
748
2843
041
2248
CoM/vakM
_ e« ___
•MpfwntB
(%) (MClor-
«*»)
047
0.17
4.87
142
0.12
1.08
2.70
0.05
0.02
004
0.06
2.61
0.01
0.88
048
2.46
0.42
0.00
0.48
047
0.17
4.67
142
1.09
2.70
0.05
048
   '**»•'

-------
           Federal Register  /  VoL  54. No. 169 / Friday. September 1. 1989 / Rules and Regulations     38637
  These data indicate that nearly half of
the total compliance costs will be borne
by the primary copper sector, and that
affected facilities (16 in total) in the
copper and zinc sectors will experience
annual compliance costs in excess of $1
million per facility. In total 36 of the 103
potentially affected facilities (35
percent) are predicted to experience
annual compliance costs of more than
$500,000 per facility.
  On the other hand, six commodity
sectors will face compliance costs of
less than $50.000 per affected facility.
and almost one-half (50 of 103) of the
faculties generating potentially
hazardous wastes removed from the
Bevill exclusion by today's rule will
experience, on average, incremental
subtitle C costs of less than $100.000.
C. Economic Impacts
  EPA's screening-level analysis of
economic impact compares the
magnitude of average compliance costs
for each sector to the estimated value of
shipments in those sectors. This ratio
provides a first approximation of the
extent to which the profitability of firms.
or, alternatively, commodity prices, may
be adversely affected by the imposition
of regulatory compliance costs. In this
screening analysts, the Agency grouped
commodity sectors into three groups
according to the value of compliance
costs to value of shipments: Those with
ratios below one percent those between
one and five percent, and those with
ratios greater than five percent Results
are displayed in Table 6.
                     TABLE 6. CATEGORIZATION OF MINERAL SECTORS. BY LEVEL OF COMPLIANCE COSTS
COM cmgwy nrnral
1. 8«tow 1.0 p«fc«it:
ti~n*rm*n 	
LtarrKY (hy-pnylvct o< 90M) 	 - 	

C«lckjm mfffe) 	 	 	
Aluminum 	 , ,, ,
"•Ftru"


Tanaium/Cnlumhiuiii -
TttMim •ponga mt>|| 	 	 	

Tat* In engmy

LMd, nduriing hMium
Cnpp«r •icludmg tucuumiiaig 	
Uareuiy (muring gnM hy^mr.^™,) 	
i«e 	
F^mehmmum

10. 5.0 PMMM or above
TOW i" emgofy 	 	


SIC
3339
3330
3339
3339
3334
3339
3331
2874
3339
3339
2919
3339


3332
3331
3339
3339
3333
3313

3339



CtNtt/vakM
ot
SnlpfTWfiv
(%) (MOOT-
Mda)
0.00
0.01
002
O04
0.06
oos
0.12
air
O29
042
OS7
OSS


1.09
132
2.45
261
2.70
4.67

7.05



Number ol
•flvcttd
latiktM
3
9
1
1
16
2
10
17
6
3
5
2
77

4
11
1
1
5
8

1
1


1. Impacts on Commodity Sectors
  Twelve mineral sectors comprising 78
percent of the potentially affected
facilities will incur compliance costs of
less *han one percent of thiMr
value of shipments. These- an the
antimony,
magnesium, copper from alectrowinning,
tantalum/Colombian, furnace process
phosphoric add. titanium sponge,
elemental phosphorus, and molybdic
oxide/rhenium sectors. Of these, only
the molybdic oxide/rhenium commodity
sector, with two potentially affected
facilities, approaches EPA's one percent
cut-off value for identifying moderate
economic impacts.
  Seven mineral commodity sectors.
with a combined total of 31 facilities,
will have compliance costs between one
and seven percent of their value of
shipments. These include lead/bismuth,
copper from processes other than
electro winning, tin, primary mercury,
zinc, ferrochromium. and arsenic add.
Only the ferrochromium sector, with
eight facilities, and the arsenic add
sector, with one facility, have predicted
impacts in excess of three percent of
their respective value of shipments.
  Sectors with ratios above one percent
 were considered vulnerable to moderate
 to significant Hf»«^»«^i«i impacts and were
 evaluated in more detail in terms of
 market and industry factors that might
 affect the ultimate incidence and impact
 of the costs.
  To place the results into perspective,
 EPA examined a number of factors such
 as absolute price levels, major end users
 of the mineral commodity, competition
 from imports and substitutes, secondary
 production, and flexibility hi other
 production cost factors.
   '  L*ad/Bitmuth. (Average cost/sales
 of i. i percent) Major uses of lead are in

-------
          38638    Federal Register / VoL 54. No. 169 / Friday. September li 1969 / Rules and Regulations
 automotive batteries, construction
 materials, and a wide range of other
 products. Secondary recovery of lead
 from used automotive batteries provides
 e substantial portion of supplies. While
 marginal substitution is possible hi tfr**
 of the markets, a price increase of L4
 percent would not substantially alter the
 basic use patterns of lead. Bismuth is
 used hi a range of Pharmaceuticals and
 chemicals, ss well as in manufacturing
 machine parts. These applications offer
 a somewhat stable market for bismuth.
 However, most domestic consumption
 comes from imports, limiting the
 potential for domestic suppliers to raise
 prices.
  • Copper. (Average cost/sales of 13
 percent) Copper is widely used in
 building construction, electrical and
 electronic products, industrial
 machinery and equipment
 transportation, and consumer products.
 The ability of affected firms to raise
 prices is limited by significant
 competition from foreign suppliers
 (some of which an government-
 supported) and by the wide variety of
 product substitutes that an available for
 many copper end uses (e.g., optical fiber
 hi telecommunications cable, plastics in
water pipe and plumbing fixtures).
  • Tin. (Cost/sales of 2.4 percent) This
 metal is widely used hi coatings,
 particularly for cans, and alloys hi
 electrical and construction applications.
 In the coatings business, aluminum,
glass, paper, and plastic provide strong
 competition. Other metals compete hi
 alloy applications. Secondary recovery
 of tin from scrap is another factor
 adding to competition. A price increase
 of 2.4 percent could have a marginal
impact on domestic primary tin sales.
 but may have a significant impact on the
one romaipinj domestic primary tin
producer.
  • Mercury. (Coat/sales of 24
percent) Mercury is used in a number of
electrical and chemical applications.
Competition la found hi the form of
different technologies for bettariee,
process alternatives for electrolytic
production of chlorine and caustic sods
         WDCtaUtlsll CBDDllaW Ot leBDOfvBd
         mercury, and competition froa domestie
         producars extracting BiacGvjrooaa
         precious metals sida-straanu
         (electrowinning slimes). It is unclear
         that ****• facility, which accounts for
         about 14 percent of domestic production.
         could recover its compliance costs by
         increasing prices by 24 percent
           • Zinc. (Avenge cost/sales of Z7
                                  GsVuIUU SOD
                 osi v0 costings. In outings, zinc
I
magnesium. In coatings,
and other alloys offer su
                                    cs, paints.
                                  tutes. A
                                                major competitive factor is die large
                                                share of supply (greater than half)
                                                coming bom imported slab nfrr- These
                                                factors would limit the ability of
                                                domestic sources of zinc to raise prices.
                                                  • Ferrochromium. (Avenge cost/
                                                sales of 4.7 percent) Ferrochromium is
                                                used in specialty and high-performance
                                                alloys and steels. Its performance
                                                characterise* render it valuable to
                                                existing users and would mitigate the
                                                effects of a price increase of 4.7 percent
                                                Nonetheless, imported supplies of
                                                ferrochromium may limit the ability of
                                                domestic sources to raise prices.
                                                  • Arsenic Acid. (Cost/sales of 7JO
                                                percent) The plant producing arsenic
                                                add from residual lead dust is unlikely
                                                to be able to recover compliance costs
                                                by raising prices. Arsenic-based wood
                                                pnservatives and pesticides an
                                                valuable to end-users. However, arsenic
                                                add produced from imported anenious
                                                trioxide and imported anenic add
                                                account for 99 percent of domestic
                                                demand. Therefore, the market price for
                                                tins product an unlikely to change  as a
                                                result of production cost increases at
                                                this single, small facility.

                                                2. Effects on Consumer Prices

                                                  Because most If not all. of the
                                                immediate markets for the effected
                                                mineral commodities an as inputs to
                                                other manufacturing or industrial
                                                activities, and because, as discussed in.
                                                the previous section, the ability of firms
                                                tat most affected secton to pass through
                                                compliance costs appears to be limited.
                                                EPA believes mat in general, this rale
                                                will not cnate any appredable changes
                                                in consumer prices.

                                                3. Foteiffn Trade Imnacta
                                                  Trade is substantial in many of the
                                                mineral commodities addr
                                                                 id in this
                                                •tody. Basic import and export data for
                                                the secton that generate potentially
                                                hazardous wastes an presented in
                                                Tables 7 and 8, respectively. Export
                                                markets an generally small for the   •
                                                commodities that EPA HM hfontifltd aa
                                                having modente to significant
                                                          cOSt tmpme** (J^. cOSt/Vahw
                                             HTrrtt of POT p****-*"* or sum).
                                       and these markets may be adversely
                                       affected by the predicted economic
                                             lofc
                                      TAME 7. fcmjms OP MINERALS PRO-
                                         DUCED M SECTORS GENERATING HAZ-
                                         ARDOUS WASTES. 1987
                                                            Quana»
                                                             OWTT
1.24U10
   •.701
   1340
13S2.1S2
  18,171
                                                                            TAME 7. IMPORTS  OF MINERALS  PRO-
                                                                              DUCED M SECTORS GENERATING HAZ-
                                                                              ARDOUS WASTES. 1987—Continued
                 Cakmbii
                                                                                   end
                                                                             Mercury—nwttl
                                                                             MotytxMr
                                                                                     igM).
                                                                              •crap.
                                                                                          hdudtog
                                                                             PhMphc
                                                                              pgiorgranuMwl.
                                                                             Ttonum  urmrougrH
                                                                              •pongtmtu
                                                                             Zhe-btoeta.  pip.  and
                                                                                                   (MT)
                                                                                                    1.MO
                                                                                                     352
                                                                                                    2.078

                                                                                                  468.181
                                                                                                   302,948
                                           IS

                                        10.827
                                        10.884
                                          898

                                         3,0*4

                                           3
                                          NA
                                         4X100
                                        41.1SO
                                                                                                   708*5
                                               VHuy
                                               (SOW)
                                        8,788
                                        1.818
                                        6,612

                                       734,725



                                       155.189



                                        7.887

                                        7.238
                                          NA
                                        3.960

                                        13.407

                                        2,072
                                        .  NA
                                        6,608
                                        5,186

                                       298.088

                                        •321

                                       581.221
                                                                                  _
                                                                             comepond to t» mnml Mem Mt tovoiv* proc-
                                                                              SOWCM: UA BWMU ol MbM. Mbmto YMrtoook
                                                                             18S7 and Mm** CommodNM Suv«y 1969.

                                                                             TABU 8.—EXPORTS OF MINERALS PRO-
                                                                               DUCED M SECTORS  GENERATING HAZ-
                                                                               ARDOUS WASTES. 1987
                                                                              Mnki
                                       2S1.103

                                          Tea
                                          167
                                           38
                                                                                                   114.721
                                                                                                    4435
                                        10.116


                                        44,151
                                         1.2B
                                           n
                                         1.3W
                                                                                                           VlfeM
                                                                                                           (SOOO)
                                       415.003

                                         2317
                                          NA
                                          •41
                                               427343
                                                 5.730
                                                                                                            11340
                                                                                                           130372
                                        11.146
                                           P)

                                        •6312
                                        30J9S

                                        34.7*4
                                                                                                              746

                                                                                                             2,114

-------
           Federal Register / VoL 54. No. 189 / Friday. September 1. 1989 / Rules  and Regulations     36639
  tor otto on
to SM Mfeml
                         not
                        ttM kwofc* preo-
       : OS. Burwu of MkiMi Mbwrad YMKtaoft
1967 «id Mkwtf ConvrnxStM Surwy 1«M-

  Because imports of many of the
mineral commodities in question an
significant the ability of domestic
producers to raise prices to recover
compliance costs, is, as discussed
above, quite limited. A direct
comparison of processed domestic
minerals with imports is difficult
because of the presence of imports in
the form of both base metals and other
assorted compounds and manufactured
products. Nonetheless, using the import
figures in table 8 as one measure of the
scale of imports,  the international trade
situation facing the firms in the
commodity sectors that will experience
cost impacts above the one percent level
can be summarized as follows:
  • Imports account for a relatively low
percentage of domestic demand for lead
and for moderate shares of copper and
mercury:
  • Imports exceed processed domestic
production in the tin. zinc, and
ferrochromium sectors: and
  • Trade data for arsenic add are
difficult to quantify: imports of
arsenious trioxide (an intermediate in
the production of arsenic add) are
substantial
  In view of the above, it is unlikely that
the overall trade balance in the
domestic minerals Industry will be
significantly affected by today's rule,
though in some sectors regulatory cost
impacts may increase already positive
net imports.

DC. Regulatory Flexibility Analysis
  The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 99-354). which amends
the Administrative Procedures Act
requires Federal regulat
consider "small entities" throughout the
regulatory process. Tin RFA requires, in
section 603. an initial scrsenmsj analysis
to be perforated to determine whetker a
substantial number of small entities will
be significantly affected by a regulation.
If so. regulatory altamativw that
0UIBIDAC0 OP OUuflBwB IDA IDDBttCtt I
beconaidand.
  Section 808 of the Act allows an
Agency head to waive or delay
completion of the screening analysis in
response to an emergency that makes
           with the requirements of
small business impacts, but that based
on previous analyses for metallic metals
processing and general knowledge of
waste characteristics in non-metals   .
processing, it was probe). '• that there   '
would not be significant small business
impacts Gram *h*a rulematdng (54 FR
15347).
  The Agency has now completed a
comprehensive screening analysis to
determine the potential for significant
small business impacts, as described
below. Based upon this subsequent
analysis, the Agency has concluded that
today's final rule wul not have a
significant adverse impact on a
substantial number of small
                              processing companies. With very few
                              exceptions, as indicated below, the
                              commodity sectors with moderate to
                              substantial predicted cost/economic
                              impacts contain either few or no small
                              business enterprises.
                              A. Definition of Affected Small Entities
                                Today's rule has its primary direct
                              effects on on and mineral processing
                              facilities that generate wastes that could
                              fail any of the Agency's tests for
                              hazardous waste characteristics. To the
                              best of the Agency's ability within the
                              time constraints of this Court-ordered
                              final rule, the mineral commodity
                              sectors most likely to face subtitle C
                              compliance costs have been identified hi
                              section vm of this preamble, based on
                              EPA's screening study of cost and
                              economic impacts. Eighteen commodity
                              sectors falling within eight 4-digit SIC
                              codes represent the population of
                              affected business firms (see table 6,
                              above).
                                For purposes of defining "small
                              business" firms. EPA has relied on the
                              standard definitions of tho Small
                              Business Administration (SBA) aa
                              published at 13 CFRch.1. part 121. For
                              the industries in question, SBA employs
                              • basic TffiplpynnHit-^Mi**"^ definition,
                              with the small business cut-oft value for
                              (OtcU ^OeDDUIY 8^QplOyXDAO* VsUUBOS
                              between 900 and 1.000 employees.
                              depending upon the specific industry in
                              question.

                              B. Approach and Data Source*
                                Based upon the results of the
                              economic impact screening analysis
                              described above in section VOL EPA
                                 mttscteci •
                          RFA
                               business ownership screening analysis
 section 803 on a timely basis
 impracticable. In previous NPRMs to   •
 this rule, the Agency indicated that there
 was insuffident time within the Court-
 ordered deadline to complete a
 comprehensive impact screening for
affected small businesses were         ^
identified individually. Comparative
date were then available to evaluate (a)
how many small businesses operate in
the minerfi sectors predicted by the
economic impact screening analysis to
be significantly affected and (b) what
fraction of the overall small business
population in the minerals processing-
related Industry categories (SIC*) might
be affected by subtitle C requirements
pursuant to this rule.
  Working largely with U.S. Bureau of
Mines mineral commodity specialists
and file data, each of the facilities
engaged in affected mineral sectors was
identified by name and location. If the
facility was owned by a separate parent
company, that company was identified
using either the Directory of Corporate
Affiliations " or the Trinet Date Base.11
Thus, for each sector EPA determined
the total number of businesses owning
facilities. The Agency men determined
the number of employees in each
business using one of four sources?
Standard and Poor's Corporate
Records,1* Ward's Business Directory.1'
the Trinet Date Base, or phone contacts.
Employment figures for public
companies were determined using
Standard and Poor's Corporate Records.
Ward's Business Directory provided
employee figures for many of the larger  '
private businesses and the Trinet Date
Base identified employee  numbers for
many of the smaller private businesses.
For the small number of businesses that
did not appear in any of these sources.
the Agency contacted the business by
phone to obtain employee information.
For all but three of the facilities in the 18
affected mineral commodity sectors,  the
Agency was able to determine the size
 of the owner company.
   EPA obtained the appropriate SIC
 classification for each affected sector
 from the Department of Commerce. The
 Agency then compared the employee
 estimates to die Small Business
 Administration's (SBA's) definition of a
 small business tor the sector's SIC code
 •t«i determined the number of small and
 large businesses in that sector. SBA
 defines small businesses as less than
 1400 employees or less than 750
   •• NMtaMl Itastotar PobtteUn* Company.
 -Dietary of Cwponto AnUtottoM' (WUm«tl«. IL:
                               for those mineral commodity sectors
                               estimated to incur moderate to
                               significant economic impacts associated
                               with today's rule. While it was not
                               possible in the cost analysis to develop
                               compliance cost estimates specific to
                               different sizes of facilities within each
                               affected mineral sector, all potentially
                                         •• SUmUnl tad Paw's CanxmUoa -Sundwd
                                        ndfpVtCarpontknlUcord*-(New York. N«w
                                                               ,-W«nf«
                                                   mr.v.
                                                           LUSPrhnM
                                        CoMputiM. LarfMt Pitau Ph» Sttecuri Public
                                             '

-------
 36640   .  Federal Register / VoL 54. No. 168 / Friday. September "L I960 / Rulea and Regulations
 employees for most of the SIC codes.14
 Results of this analysis an displayed in
 appendix B to today's preamble.
   The Agency also classified the
 number of affected small businesses by
 SIC code, then compared this to the total
 number of small businesses in that SIC
 code, based on SBA estimates of the
 total number of small businesses in each
 SIC code. EPA also computed the
 percentage of the total number of firms
 within a given 4-digit SIC code
 accounted for by affected small
 businesses and affected small and
 undefined businesses. Appendix C to
 today's preamble displays the results of
 this analysis.
 C. Results
   From the cost analysis, facilities and
 companies in 18 mineral commodity
 sectors within eight 4ndigit SIC
 industries would be subjected to
 regulatory compliance costs by today's
 rule. The sectors were previously
 grouped by level of impact in Table 6. Of
 the IB sectors evaluated for economic
 impact seven sectors-lead/bismuth.
 copper from operations other than
 electrowinning, tin, primary mercury,
 zinc, ferrochromium. and arsenic acid-
 have potential average gnrnpHam^ coats
unknown size), therefore represent
affected sectors of concern with respect
to small business impacts, with a
combined total of four or five small
business companies. Supporting data for
these finding* u>e presented in appendix
C to this preamble.
  Taken together, the number of small
businesses in these two or three sectors
represents a very small fraction of the
total number of small businesses in the
relevant mineral processing industries.
  Based upon this screening analysis.
the Agency concludes that there will not
be a significant advene impact on a
substantial number of small mineral
processing companies as a result of this
List of Subjects in 40 CFK Part 281

  Hazardous waste. Waste treatment
and disposal Recycling, Reporting and
recordkeeping requirements.
  Data* August 18. 196*.
F.HanryHabkat.
Acting Administrator.

Appendix A— Mineral Commodltiea
Produced by Benefidation Operations
greater than one percent of value of
shipments (sales) and could therefore be
considered to face moderate to
substantial impacts for affected firms.
Lead/bismuth, tin. mercury (in terms of
the one affected facility), and arsenic
acid have no small business operations.
Only zinc (with one small company).
ferrochromium (with three small firms).
and possibly copper (with one firm of
Off.
      KtamMn
     (A)
     (A)
     (A)
    (A.B)
     (A)
    4A.B)
     
-------
           Federal Register / VoL 54. No. 169 / Friday. September  1, 1080 / Rules and Regulation*     38641
  APPENDIX B—COMPANIES m MINERAL PROCESSING SECTORS AFFECTED BY TODAY'S RULE BY SBA SIZE CATEGORY—Confrwed "*
                                               SBAdrtMfon
                                                of****!
                                                (nNpomum
                                                                     Numb* of
                                                                                Nunfcvof
                                                                                                             •mil or
3338—Tin	
3330—Ttarium i
                                                      750
                                                      790
                                                                            10
                                                                                                41
                                                                                                         24
                                                                                                •7
                                                                                                         18
    APPENDIX O—AFFECTED SMALL BUSINESS MINERAL PROCESSORS AS A PERCENT OF SMALL BUSINESSES m EACH INDUSTRY
                                                     CATEGORY
            SIC codo md Industry cy dMcripfion
                                                        (maamum

                                                          nwiQ
                                                                  TOM
                                                                   •n
                                                                    inStC
2819
2874—Phi
                     nicafc. N.E.C-
3313  Dactti
                     iducti
3331—Piliimy eoppar—.
3332-Prtmwy iMd	
llll  nilm.i) *~.
333t  Pilnmy aluminum
3338^"Prtnwfy nonfanoua mata)!. NEC«

     ToM-Abow SIC oMMOrtN	
1.000
 900
 rso
1.000
1.000
 790
1.000
 780
                                                                        01
                                                                        34
                                                                         2
                                                                        17
                                                                        13
                                                                        43
                                                                        184
 0
 1
 3
 0
 0
 1
 1
10
oo
1.1
84
04
04
7.7
24
 O.C
 1.'
 8.(
50,
 0..
 7..
 2.:
                                                                       1.289
                                                                                   18
                                                                                                       14
   ' TT* Smai DuatoaM AannaliaHun (SBA) prevuad «w aMmatat of VM total numoar el amal Due
bamam buatianai that amptoy mora ihan 500 and laai than 1.000 panona. la, «l§ net ponfcli to 01
••^•M QQA jteiM te M^ 4M^A j^ d^ j^rt^«MM^^ te ^4^4* Yttl ^«I^^.«^M^M b M«A ^.a.^fl feta^^B^AA .M^_jrfi .^^
UBvV «on yw& W1 w GMBV OT 3lw LMI^UUnVB VI uracn 19U VnfHOWMH • W VnlB DUWaV GW^If W
1400 amptoyaaa. T?>a actual numbaf of amaN buananaa for thoaa SfC catagortaa may Iharalofv ba taia.
                                                                           « BRA MMd 9w
                                                                                       i SIC ealiBory. SBA doaa not dMlnguitf
                                                                                                  •  r lata tian 750 paooir
  For the raajona set out in the
preamble, part 261 of title 40 of the Code
of Federal Regulations is amended as
follows:

PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES

  1. The authority
continues to read as follows:
  Authority: (42 UAC. B90B. 8BU(a).
•ad 8022).
  2. Section 28U is amended by
revising parafraphs (aK2) (I) and OH) to
read as follows:


  W*
  (2)  * * •
  (I) It exhibits anr of me
characteristics of hazardous waste
identified in subpartC except that any
mixture of a waste from the extraction,
benefidatton, and processing of ores
•ml minerals excluded ""^"*
128l.4(b)(7] and any other solid waste
exhibiting a characteristic of hazardous
waste under subpart C of mis part only
if it exhibits a characteristic that would
not have been exhibited by the excluded
waste alone if such mixture had not
occurred or if it continues to exhibit any
                                       of the characteristics exhibited by the
                                       non-excluded wastes prior to mixture.
                                       Further, for the purposes of applying the
                                       Extraction Procedure Toxidty
                                       characteristic to such mixtures, the
                                       mixture is also a hazardous waste if it
                                       exceeds too ^Qexunu^B couceuutation KDT
                                                     tt lifted in table I to
                                        i 2BL24 mat would not have been
                                        exceeded by the excluded waste alone if
                                        the mixture had not occurred or if it
                                        continues to exceed the maximum

                                        exceeded by the nonexempt waste prior
                                        to mixture.
                                        •     •    •    •    •

                                          (ill) It la a mixture of a solid waste
                                        and a hazardous waste that is listed in
                                        subpart D of mis part solely because it
                                        exhibits one or more of the
                                        characteristics of hazardous waste
                                        Identified in subpart C> unless the
                                        resultant mixture no longer exhibits any
                                        characteristic of hazardous waste
                                        identified in subpart C of ***** pan or
                                        unless the solid waste is excluded from
                                        regulation under 1 26l4b){7) and the
                                        resultant mixture no longer exhibits any
                                        characteristic of hazardous waste
                                        identified in snbpart C of this part for
                   which the hazardous waste listed in
                   subpart D of this part wes listed.
                   •    •    •     •    •

                     2. Section 2BL4 is amended by
                   revising paragraph (b)(7) to read as
                   follows:
                     (b) * * *
                     (7) Solid waste from the extraction.
                   benefidation. and processing of ores
                   mnA ntnmrm\» (including coal), including
                   phosphate rock and overburden from thi
                   mining of uranium ore. For purposes of
                   tins paragraph, benefidation of ores am
                   minerals is restricted to the following
                   activities! crushing, grinding, washing.
                   tftlAa«%k«M4%M  —•».•!_ ill•• || .»•. filtvAtlm*
                   sorting. ******iji drying, sintering.
                   neiletizittflj Driouettinaj catcuung to
                   remove water and/or carbon dioxide.
                   roasting in preparation for leeching
                   (except where the roasting/leaching
                   sequence produces a final or
                   intermediate product that does not
                   undergo further benefidation or
                   processing}, gravity concentration.
                   magnetic separation, electrostatic
                   separation,  floatation, ion exchange
                   solvent extraction, electrowinning.

-------
 36642    Federal Register / VoL 54. Na 169 / Friday. September 1.  1989 / Rules and Regulations
 precipitation, amalgamation, and heap.
 dump, vai. tank, and in titu leaching. For
 the purposes of this paragraph, solid
 waste from the processing of oras and
 minerals includes only:
  (i) Hie following solid wastes from the
 processing of ores and minerals that are
 retained within this exclusion:
  (A) Slag from primary copper
 smelting;
  (B) Slag from primary lead smelting;
  (C) Red and brown muds from bauxite
refining;
  (D) Phosphogypsum from phosphoric
acid production;
  (E) Slag from elemental phosphorus
production; and
  (ii) The following solid wastes from
the processing of ores and minerals that
are conditionally retained within this
exclusion, pending collection and
evaluation of additional data:
  (A) Roast/leech ore residue from
primary chromite production;
  (B) Gasifier ash from coal gasification;
  (C) Process wastewater from coal
gasification:
  (D) Slag tailings from primary copper
smelting;
  (E) Calcium sulfate wastewater
treatment plant sludge from primary
copper smelting/refining;
  IF) Furnace off-gas solids from
elemental phosphorus production:
  (G)Fluoronypaum from hydrofluoric
acid production;
  (H) Process wastewater from
hydrofluoric acid production:
  (I) Air pollution control dust/sludge
from iron blast furnaces;
  (J) Iron blast furnace slag;
  (K) Process wastewater from primary
lead production;
  (L) Air pollution control dust/sludge
from lightweight aggregate production;
  (M) Process wastewater from primary.
magnesium processing by the anhydrous*
process;
  (N) Process wastewater from
phosphoric ad4 production;
  (O) Basic oxygen furnace and open
hearth furnace slag from carbon steel   -
production;
  (P) Basic oxygen furnace and open
hearth furnace air pollution control
dust/sludge from carbon steel
production;
  (QJ Sulfate processing waste acids
from titanium dioxide production;
  (R) Sulfate processing waste solids
from titanium dioxide production:
  (S) Chloride processing waste solids
from titanium tetrachloride production;
and
  (T) Slag from primary zinc smelting.
•    ••••*

[FR Doc. 80-20111 FUtd 8-30-49; 8:45 am]

-------
                            RCRA REVISION CHECKLIST 66

                         Land Disposal Restrictions; Correction to
                            the First Third Scheduled Wastes
                                     54 FR 36967          /
                                  September 6, 1989
                      as amended on June 13, 1990, at 55 FR 23935
                                   (HSWA Cluster II)
Note:  This is a correction and clarification of 53 FR 31138 (August 17, 1988) and 54 FR 18836
(May 2, 1989) addressed by Revision Checklists 50 and 62 which cover the First Third Scheduled
Wastes.  As  such, States which are not yet authorized for these checklists are encouraged to
apply for Revision Checklist 66 at the same time the provisions in Revision Checklists 50 and 62
are applied for. States already authorized for Revision Checklists 50 and 62 requirements are
encouraged to adopt the corrections addressed by Checklist 66 as quickly as possible.

An error in the September 6,  1989 rule (54 FR 36967) makes it appear that the revisions to
268.8(a) include the removal of 268.8(a)(4).  This was not the Agency's intent and 268.8(a)(4)
remains in the Federal code as introduced by Revision Checklist 50.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
             PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC
              HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS
                           WASTE MANAGEMENT FACILITIES
               SUBPART C - RECYCLABLE MATERIALS USED IN A MANNER
                               CONSTITUTING DISPOSAL
APPLICABILITY
delete the word
"constituent" from the
parenthetical phrase
following "recyclable
material"; add sentence
exempting from
regulation commercial
fertilizers produced
for the general
public's use that
contain recyclable
materials
266.20(b)




                            September 6, 1989 - Page 1 of 6

-------
         RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
                      the Rrst Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION /
alAlb ANALOG is:
"EQOI7-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
                    PART 268 - LAND DISPOSAL RESTRICTIONS
                             SUBPART A - GENERAL
PURPOSE. SCOPE AND APPLICABILITY
substitute "restricted"
for "prohibited"
remove paraaraph
remove paraaraph
wastes which are not
subject to any
provisions of
Part 268
wastes generated by
generators of less than
100 kg of hazardous
waste and less than
1 kg of acute
hazardous waste
waste pesticides
pursuant to 262.70
wastes identified or
listed as hazardous
after November 8,
1984 for which EPA
has not promulgated
land disposal
prohibitions or
treatment standards
268. 1(c)
268.1(cU3)
268.1(0(4)
268.1 (e)
268.1 (e)(1)
268.1(eH2)
268.1(e) (3)




























WASTE ANALYSIS
add language to
indicate that
exemption from
prohibition is not
limited to extensions
under 268.5,
exemptions under
268.6 or a nationwide
capacity variance
under Suboart C



268.7
-------
         RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
                       the First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
after "268.33(0" add
parenthetical state-
ment Including wastes
disposed of in units
other than landfills
or surface
impoundments
after "266.20(b)"
insert "regarding
treatment standards
and prohibition levels,";
Insert "i.e.," preceding
"the recvcter"
disposal of recyclable
material subject to
266.20(b)
FEDERAL RCRA CITATION
268.7(aM4)
268.7(b)(8)
268.7(c)(4)
ANALOGOUS
STATE CITATION '



SI A ft ANALOG is:
EQUIV-
ALENT



MORE
STRINGENT



BROADER
IN SCOPE



LANDFILL AND SURFACE IMPOUNDMENT DISPOSAL RESTRICTIONS
specific requirements
for generator if no
practically available
treatment for waste:
prior to initial ship-
ment, demonstration/
certification to
Regional Administrator
demonstration and
certification with
initial shipment;
certification with
subsequent shipments;
recordkeeping and
record retention
requirements for
generator if there
are practically
available treatments
for waste:
prior to initial
shipment, demonstra-
tion/certification to
Regional Administrator
268.8(a)(2)
268.8(a)(2)(i)
268.8(a)(2)fll)
268.8(aU3)
268.8(a)(3HD




















                          September 6, 1989 - Page 3 of 6

-------
RCRA REVISION CHECKLIST 66:  Land Disposal Restrictions; Correction to
              the First Third Scheduled Wastes (corrt'd)
FEDERAL REQUIREMENT
demonstration and
certification with
initial shipment;
certification with
subsequent shipments;
recordkeeping and
retention
add language requiring
submission of new
demonstration and
certification to the
receiving facility
insert ", for each initial
shipment of waste,"
between "must" and
"send"; add "(i) or
268.8(a)(3)(i)" after
"268.8(a)(2)"; add
sentence to end
requiring submission
of certification with
subsequent shipments
change "263.33(f)" to
"268.33(0"
FEDERAL RCRA CITATION
268.8(a)(3)(ii)
268.8(b)(1)
268.8(c)(2)
268.8(d)
ANALOGOUS
STATE CITATION




STATE ANALOG IS:
EQUIV-
ALENT




MORE
STRINGENT




BROADER
IN SCOPE




          SUBPART C - PROHIBITIONS ON LAND DISPOSAL
WASTE SPECIFIC PROHIBITIONS-CALIFORNIA LIST WASTES
replace "such
disposal" with "such
unit"
268.32m




                  September 6, 1989 - Page 4 of 6

-------
          RCRA REVISION CHECKLIST 66:  Land Disposal Restrictions; Correction to
                        the First Third Scheduled Wastes (corrt'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION /
STAVt AHALoQ is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
WASTE SPECIFIC PROHIBITIONS-FIRST THIRD WASTES
change "K004
(nonwastewater)" to
"K004 wastes specified
In 268.43(a)"; change
"K008 (nonwaste-
waters)" to "K008
wastes specified in
268.43(a)"; remove
"K015 wastewaters";
change "K021
(nonwastewater)" to
"K021 wastes specified
in 268.43(a)"; add
"nonwastewaters
specified in 268.43(a)"
following "K025";
remove "K083
(nonwastewaters)"; add
"nonwastewaters
specified in 268.43(a)"
following "K100"; add
"(wastewater), K101
(nonwastewater, low
arsenic subcategory -
less than 1% total
arsenic)." following
"K10T; add
"(wastewater), K102
(nonwastewater, low
arsenic subcategory -
less than 1% total
arsenic)." following
-K102"
replace "are not
applicable" with
"have not been
promulgated";
replace "unless the
wastes are the subject
of a valid demonstra-
tion and certification
pursuant" with "unless
a demonstration and
certification have been
submitted"
































268.33(a)











268.33m




















































































































































































                           September 6, 1989 - Page 5 of 6

-------
          RCRA REVISION CHECKLIST 66:  Land Disposal Restrictions; Correction to
                        the First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
replace "extract or the
waste" with "extract
or the waste, or the
generator may use
knowledge of the
waste"
FEDERAL RCRA CITATION


268.33(a)
ANALOGOUS
STATE CITATION /



STATE ANALOG IS:
EQUIV-
ALENT



MORE
/STRINGENT



BROADER
IN SCOPE



                      SUBPART E - PROHIBITIONS ON STORAGE
PROHIBITIONS ON STORAGE OF RESTRICTED WASTES
reword paragraph
regarding exemptions
from land disposal
prohibitions
268.50(d)




1
 See technical correction at 55 FR 23935, June 13, 1990.
                           September 6, 1989 - Page 6 of 6

-------
                                 RCRA REVISION CHECKLIST 67

                                  Testing and Monitoring Activities
                                       54 FR 40260-40269         /
                                       September 29, 1989
                                      (Non-HSWA Cluster VI)

   Technical corrections were made to this rule at 55  FR 8948  (March 9, 1990).  These corrections
   are addressed by Revision Checklist 73 which will be made available through SPA 9.  States are
   encouraged to adopt the technical corrections at the  same time that  the Revision Checklist 67
   provisions are adopted.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
	 81
ALENT 1 SI
TCT
mi
ORE
NGENT
BROADER
IN SCOPE
               PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
                                   SUBPART B - DEFINITIONS
change last clause
of sentence regarding
the Second Edition into
a sentence combining
it with the price
information
260.11(a)




                PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
                       APPENDIX III - CHEMICAL ANALYSIS TEST METHODS
revise Table 2 as
shown, replacing First
Edition information
with Third Edition
information
Aooendlx III




  TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED IN SW-8461
                   Compound
           Third Edition MMnod(s)
 Second Edition
   Mctnoais)
AluvRinuvn «
Antimony.
6010.
6010..
AIMON
BwyHuifn.
Boron	
   I. 7090. 7091.
Chronnum	
Chromium. Hexav«l«nt_
6010_
6010...
                                              6010.7210. 7211.
                                              6010. 7380. 7381.
                                    7040. 7041
                                    7060.7061
                                    7080. 7061
7130.7131

7190. 7191
7195. 7196. 7197
                                                                                  7420. 7421
                                              6010
                                 September 29, 1989 - Page 1 of 5

-------
                                RCRA REVISION CHECKLIST 67:  Testing and
                                            Monitoring  Activities  (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION
/i>TA'it ANALOG IS:
EQUIV- 1, MORE
ALENT 1 STRINGENT
BROADER
IN SCOPE
  TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED IN SW-846*
Conipound

UATMIfy

KJw-b*l


S«l«n^ifn 	 	 	
Rilif^n
GZumr 	 „ 	
SfHftim 	 	 -- 	 	
Thfillivm,, 	 	 -,.„..,. ,„- 	 -,„„„,-
ui»"»rtwim 	 	 	 ,.. 	 	 	 .,.,„.,„,„.,. .
7i~- ,.„....,,„.... 	
Cyanides 	 	 „... .. 	 « 	 .... 	 	 	
Tptfl Organic Hl^M , Jt ,,..... 	 ,„„„ , , „ 	 	 	 _.
SiilR/to* 	 	 	 	 	 	
fiuHf Iff .._ 	 ,.,. „. 	 ,.,....,, 	 .,„,„,
Total Organic Carbon .......... 	 _ 	 	 	
PhenoliCS . ,
Qil and G'VBM ...i.. 	 	 	 	
Tntal Crfllnnn
Nilml. 	 	 	 „,.„..,„.„,- 	 , 	 	 	
CnkKid** 	 .».„.„. , 	 	 	 	 	 	 .... 	 	 ........ , ,,,„,
Gross Alpha and Gross Beta 	 	 ..... _ .._ 	 .......

Ridium-228 _ _ 	

Third Edition M«thod(s)
flOlQ 74, 70it , , , 	 	 	
6010, 7950, 7951 	 .._ 	 	

902?

9035 9036, 9039 	 ^ 	 „,.
to^;».>n |jff«t . '. 	 ,.„.„.—,-„„-„„-,„„•„ . . . ..i ,.... 	

Quality Control DocuinaniaDon , .r- 	 	
R^fcfrfnC^ 	 	 lnll 	 , 	 , T.,.T1 j , ,, , — _, 	



Implflin^fiftng the Gmdanca -. 	 	 	 	 	 	 ..."



Metallic Analym ... , 	 . ..• 	 	 n


Add Diocsmn of Watan for Total Recoverable or Dissolved Metals tor AnaiysM by Flame
AASorlCP.
TrwdE
Section No.
1 0
.1
2
.3
.4
5
.6
20
2 1
22
2.3
2.4
25
26
3.0
3 1
32
3.2

.rtihon
Method No.

















3009

Second
Section No.
100
10.1

















Edfton
•MMhod Mo







.











                                        September 29, 1989 • Page 2  of 5

-------
                      RCRA REVISION CHECKLIST 67:  Testing and
                                Monitoring Activities (cont'd)
                                                                         STATE ANALOanST
FEDERAL REQUIREMENT
                       FEDERAL RCRA CITATION
 ANALOGOUS
STATE CITATION
EQUIV- I '  MORE     BROADER
ALENT  I- STRINGENT I  IN SCOPE
              TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-846 •—Continued
T*«
Add Digestion of Aqmou* Samples and Extracts tor Total Metals tor Analysis by Flam*
AAS Of ICP.
Acid Digestion of Aqueous Samples and Extracts for Total Metals lor Analysis by Furnace
AAS.
D"»soiu«on P-'oemtufT fw Oita Grsn-ws Of Waxes
Acid Digestion ot Sediments. Sludges and Soils... _
Methods (or the Determination ol Metals 	 	
Inductively Coupled Plasma Atomic Emissions Spectrosc
Atomic Absorption Methods. ... _ 	 	
Aluminum, Fl«m« AAS ,,...,,,. ,, 	 _...
Antimony, Flfim. AAS,,,,,.. 	 „„„„...„.,,, ,„
Antimony, Furnace AAS 	 _ 	
Arsenic, Furnaea AAS —,_„.,„ ,„ ,„,„„ ,„ ,„.,„.,..„, „, ,
Arsonc, Gaanous Hydride AAS. _ 	 	 	 ._
Banum, Flams AAS..... 	 	 	 	 	 .,.„..,,.
Banum, Furnace AAS 	 ._ 	 ._
Beryllium, Flam. AAS , ,„ 	 , 	 „ , ^
Beryllium, Fumm AAS.... 	 	 	 	 	 , ul.
Cadmium, Flam* AAS 	 	 	 ..„„.,..„„ L
Cadmium, Fum^c* AAS 	 _ 	 	 	 	 	 , „„ L ^L.,
Calcium, Flam* AAS 	 	 	 MIIIIII _
Chrncnum, Rnma AAS 	 _ 	 , ji
Chromium, Fumaca AAS 	 ,„.. 	 _ 	
Chromium. Hexavalent, Coprtcipilation-. . . 	
Chromium, Haiavalant, Colonmatnc ,..,.,„ 	 , 	
Chromium, Hexavalent Chedtion/Exlraction 	
Chromium. Hexavatont. Diflerentud Pulse Polarography _
Cobalt, Flama AAS 	
Cobalt, Fuma-ii AAS, 	 	 	 _ 	 	 	 _
Copper, Flarim AAS 	 	
Coppar, Ftimaea AAS 	 	
Iron Rama AAS 	 ,. ., 	 	 , ......


•oov . „























Iron, Fumae* AAS... 	 , 	 ,,,
Lend. FlariM AAS ._ 	
Lead. Furnace AAS 	 	 	 	 	
Magrnitum, Plant* AAS 	 ,.„,„, ,.
Mang-iima, Pl«na AAS 	 , 	 ,.,„„.,„., , ,
Manganese, Furnace AAS 	 	 	 .......
Mercury HI Liquid Waste, Manual Cold Vapor Technique
Mercury m SoM or Semnoiid Waste. Manual Cold Vapo
Molybdanum, Plarn* AAS „ 	
Molybdwium, Pum«c* AAS 	
Niekal, Pl.m. AA? 	 	 	
Osmium, Plain* A>S 	 _ 	
Pola-wium, Fl»ni» AAS 	 ,„ ,
Salaniucn, Funuea AAS 	 	 	
ScOnum, Gnumtn MyrifM. AAS „ , 	 „ ,
S»w«r Fl.m. AAR 	 nmi, ,. ,
SilMir, Pi>rur. AAS
JV>rtiiim, Fl»m» AAS 	 _ 	 ,
Thallium, Flam* AA$ 	 _ 	
Thallium, Pumm AAS 	 	 	
Tin, Plfma AAS 	 _ 	 	
Vanadium, Film* AAS 	
Vanadwm Furnw AAS
Zlne, FORM AAS _„,..„ 	 	 	 „ 	
Tine, Furnace AAS „.„.„,,
Organic AnalytM 	 	 	 	
Sampling Cnn« „ ,, , ^
Sample Preparation Methcds 	 	
Extractions and Preparations 	 	 	 	 	 _._. 	
Organic Extiac^cn and Sample Preparation. _..
Separatory Funnel Uq-rU-bautf Ex-jaction 	
Continuous Uou!<1-Liciuid £>tr3cton 	 	 _.
Soxhtet Exlracsinn.. 	 	 ™ 	 	






r Tmrttn^fff

























Third Edition
Section No.
3.2
3.2
3.2
3.2
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
4.0
4.1
4.2
4.2.1
4.2.1
4.2.1
4.2.1
4.2.1
Method No.
3010
3020
3040
3050
•6010
7000
7020
7040
7041
7060
7061
7080
7081
•7090
•7091
7130
7131
7140
7190
7191
7195
7198
7197
•7198
7200
7201
•7210
•7211
•7380
•7381
7420
7421
7450
•7450
•7461
7470
7471
7480
7481
7520
•7550
7610
7740
7741
7780
7761
•7770
•7840
•7841
7870
•7910
•7911
•7950
•7351



3500
3510
3520
3540
•Second Edition
Section No.
4.1
4.1
4.1
4.1



7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0



	
70
5.0

7.0
7.0

7.0

7.0
7.0
7.0
7.0







8.0



4.2
4.2
42
M«*od No.
3010
3020
3010
3050


70.10
7041
7060
. 7061
7C80
7B61
7130
7131
7190
7191
7195
7196
7197






7470
7421


7470
7471

7520

7740
7741
7760
7761












3S10
3520
3540
                             September 29, 1989 - Page 3 of 5

-------
                      RCRA REVISION CHECKLIST 67:  Testing and
                                Monitoring Activities (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
 ANALOGOUS
STATE CITATION
ALE-NT
STATE ANALOG IS:
  MORE   I  BHO;
STRINGENT   IN SCOPE
              TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-846 '—Continued
T'Ka

UNr9£0«c FVHICfO"
Wa*w r>U|tiofi
Purg«-«nri.T:;.p ..., T 	 , 	 ..,.....,_,.. 	 , .,, 	 	 .,..,--,— .,-.,--—. .„,,- 	 ,-„
Protocol lor A:i»;yri< of $orhe>ii CaitiirtqBi from t/QST 	 , 	 	 ,, 	 ,,„„„-, ....

Cleanup 	 ... ... .. 	 , .......
Alumina Cohjrtin Clpainip .. 	 	 	 	 	 ...... 	 	 	 _ 	
Alumina Column Qsanup aivl Scpj'atw of P»'«5,'»um W*$toi 	 , 	 	 	 	 	 ,
Pori*1 Co'u"1" Cleanup 	 , 	 ., 	 	

GvLPenrtefllirKi Ci'a""p
Acid-Pase ParWof Cleanup 	 	 	 	
Sulfur ClBinup 	 	 	 	 	 , 	 , 	 - 	 	

Ga» CrfOfMitowanNr; Vsthods , 	 	 	 	 	 , ,

M9lng,«utt*4 Volfl(it«i OfgdfHW...... 	 , 	 	 	 	 	 	 	 	 .
EDS and DHCP .
Nonh4k?g8nat«4 VnljW OjaTS , 	 , 	 	 	 „„„..,... „..,,, 	 -, 	 ,
Aromatic Vcb|til« r>g;;nic« 	 ,, 	 	 	 	
Volatile Organ* Compound-} In Water by PurjD-and-Tiap Capillary Column GC witii PID
and Electrolytic Conductivity Detector m Seoes.
Aerotein, Acryinmlrito, AcMnntnta .. ._ 	 	 	 , 	 LL


NHrnsanurw^
OfoanocMonrm P»iod5 	 „ .. 	 -----

Mmntdecarre Exticchcti and Scfcerinq of Puroaabta Organfei

Total and Annnabla Cy«nia>(Colnnmalnc, Manvt') 	 	
Total and AmenaDto Cyaiide (Cotoriinetnd Automatad)
Total Croanie H>IMM (TRX)
PinjMbte Drj-trar H^Kf*f (POX),, 	
Tot^l 0^9404 H9dff49 (TO^^ by Neutron Activation Analysis
Anrt-Snhihto anrt A«d.lnfQ!M«l* SqlK^f 	 , 	 ,
EitnetaMn SiiHvU* , ,
S"«»t», (Co'Q'|metf4c, Automated C>i>c'anil«tc)
Sutfato, (Ooicnmeinc, Automated. UttftyW>yict BHrt. AA M) ..._._ 	
$uHj)ie, (Tu'b'd'f"*""!). ........_..
Total Orgartc Carfio" , ,,
Phenofici (Spy 'TOt^ftutort'etrtc Marual 4~AAP)

Pl^nQiiO (Spectfopffotometnc MBTH)


Total CofrforTn* Muftiple Tube Ffirmontaf'on
Total Colilorm: Mafnbrarw filter.. 	 H 	 ,,.L 	 	 	 ,, 	

• Chhytde (Cofcrimevic, A*rto/i
-------
                                   RCRA  REVISION  CHECKLIST 67:   Testing and
                                                Monitoring  Activities  (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS '
STATE CITATION

EQUiV-
ALENT
"STATE ANALOG IS:
MORc 1 BROADcR
STRINQENT I IN SCOPE
                         TABLE 3—SAMPLINQ AND ANALYSIS METHODS CONTAINED IN SW-646 '—Continued
Title
Properties
Multiple Extraction Procedure 	 	 	 —
Extraction Procedure tor Oily Wastes
pH Electrometne Measurement 	 ._.. 	 	 	 	 	
pH Paoer Method 	 . _ . ._ ... ....
Soil pH
Specific Conductance 	 _ 	
Cation-Exchange Capacity of Soils (Ammonium Acetate) . . .
Cation-Exchange Capacity ol Soils (Sodium Acetate) 	
Compatibility Test for Wastes and Membrane Uners.._ 	
Paint Filter Liquids Test

	 	 	 	 	 —



	 	 	

	 - 	
Saturated Hydraulic Conductivity, Saturated Leachate Conductivity, and Intnnnc Permeability 	
Gross Alpha and Gross Beta
Alpha-Emitting Radium Isotopes
Radium-228 	 _ 	
Introduction and Regulatory Definitions
Ignitabitity
Cofrosryity __*. . ..._.
Reactivity






Test Method to Determine Hydrogen Cyanide Released from Wastes 	 	 _ 	
Test Method to Determine Hydrogen Sulfide Released from Wastes 	 	 	 —
Methods for Determining Characteristics _.. ..
IgrHtaWity ._.._._......__ 	 	 _.
Pensky-Martetis Closed-Cup Method 	 _. 	 _
Setaflash Closed-Cup Method 	
Corrosrvity '
Corrosrvrty Toward Steel 	
Reactivity 	 _. .
Tonqity


	 - 	
— 	 	 	 	 	
Extraction Procedure (EP) Toxicity Test Method and Structural Integnty Test 	 	
Sampling Plan_ 	 ._ 	 	 	 .._..__ 	 . 	 _.... 	 	 	
Design and Development. „„.___......„_.__._..„......._.__ 	 _.._.. 	 	 	 	 ___. 	 _...
Sampling Methods ... . __ ___ _ 	
Modified Method S Sampling Tram. Appendix A and B 	
Source Assessment Sampling System (SASS) 	
Volatile Organic Sampling Tram . _._._ . „ ._. _ .
Ground Water Monitoring 	
Relationship to the Regulations and to Other Documents 	
Aeeaptahla D**grw and Practice 	 „ 	
Unacceptable Designs a~J "TTT't 	
Land Treatment Mnmtnrtng

	 	
	 	
	




TraaUMM ?nfi*
Ragul«<«fy O*hnrti
-------
 54 FR 40260-40269



Revision Checklist 67

-------
Friday
September 29,  1989
Part  IV
Environmental Protection Agency

40 CFR Parts 260 and 261
Hazardous Waste Management System;
Testing and Monitoring Activities;  Final
Rule

-------
 40260    Federal  Register / VoL 54, No. 188 / Friday. September 20, 1089 / Rules and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY.

 40 CFR Parts 260 and 261
 [FRL-3S49-5]
 RIN2050-AC80

 Hazardous 'Waste Management
 System; Testing and Monitoring
 Activities

 AGENCY: Environmental Protection
 Agency (EPA).
 ACTION: Final rule.	

 SUMMARY: This rule adopts 47 testing
 methods as approved methods for use in
 meeting the regulatory requirements
 under subtitle C of the Resource
 Conservation and Recovery Act
 (RCRA). These new methods are found
 in the Third Edition of "Test Methods
 for Evaluating Solid Waste. Physical/
 Chemical Methods". Office of Solid
 Waste Publication SW-848. and in
 Update I of that Third Edition. As
 specified in revised Tables 2 and 3.
 these methods may be used to meet
 regulatory requirements in conjunction
 with, or in addition to the methods
 found In the Second Edition of SW-846
 as amended by Updates I and IL
 EFFECTIVE DATE Effective on October
 30.1980.
ADDRESSES: The official record for this
 rulemaking (Docket No. 840-84-1) is
 located in Room M-2427. U.S.
Environmental Protection Agency. 401M
 Street SW.. Washington. DC 20480. and
 is available for viewing from 9:00 a.m. to
 4:00 p.m* Monday through Friday,
 excluding legal holidays. Call (202) 475-
 9327 for appointments. The public may
 copy a maximum of 100 pages of
 material from any one regulatory docket
 at no cost; additional copies cost $0.15
per page.
  Copies of the Tliird Edition of SW-848
and of Update I to the Third Edition are
available from the Government Printing
Office, Superintendent of Documents,
Washington. DC 20402. (202) 783-3238.
The document number is 955-001-00000-
1 and the cost Is $110.00 for the four-
 volume set plus updates. Update
packages will be automatically mailed
 to all subscribers.
  Copies of the Second Edition of SW-
 846 an available from the National
Technical Information Service (NTIS),
 5265 Port Royal Road. Springfield. VA
 22161, (703) 487-4600. The document
 number is PB87-120-291 and the cost is
S48J5 for paper copies and $13 JO for
 microfiche.
 MM FURTWR INFORMATION CONTACT:
 For general information contact the
 RCRA Hotline at (800) 424-0346 (toll
 free) or (202) 382-3000. For technical
 information contact Charles Sellers,
 Office of Solid Waste, OS-331, VS.
 Environmental Protection Agency. 401M
 Street SW.. Washington. DC 20480. (202)
 382-3282.
 SUPPLEMENTARY INFORMATION:

 Preamble Outline
 I. Authority
 II. Background
  A. Regulatory Framework
  B. Nature of the SW-646 Manual
  C Mandatory U*e of the Manual
  D. Origin of Today's Final Rule
 I1L Issues Discussed in and Arising from the
    October 1984 Proposed Rule
  A. Overview of Proposed Rule
  B. Other New Methods in SW-646 that are
    not Part of Today's Rule
  C. 47 Methods Adopted in Today's Rule
  D. Comments Regarding the 47 Methods
    Adopted In this Final Rule
  E. Information Related to Tables* and i.
    Appendix 111. Part 261
 IV. Stale Authority
  A. Applicability of Rules In Authorised
    States
  B. Effect on State Authorization*
 V. Regulatory Analyse*
  A. Regulatory Impact Analysis
  B. Regulatory Flexibility Act
 VLLUt of Subject* in 40 CFR Parts 260 and
 •  261

 L Authority
  These regulations are being
 promulgated under the authority of
 sections 3001,3004.3005. and 3008 of the
 Solid Waste Disposal Act. as amended
 (commonly known as the Resource
 Conservation and Recovery Act or
 RCRA). 42 U.S.C. 6921.6924,6925, and
 6926.

 IL  Background

 A.  Regulatory Framework
   Subtitle C of the Resource
 Conservation and Recovery Act of 1976
 (RCRA) creates a comprehensive
 national program for the safe
 management of hazardous waste.
 Among the elements of this program.
 section 3001 requires the Agency to
 develop and promulgate characteristics
 for identifying hazardous waste, and lor
 specifically listing hazardous wastes.
 Furthermore, sections 3004 and 3005
. require the Agency to promulgate the
 standards necessary to protect human
 health and the environment for the
 treatment storage and disposal of
 hazarous waste, and to implement those
 standards through a permit program.
   The Agency has promulgated a
 detailed set of criteria, standards.
 definitions, and other requirements to
 meet its charge under sections 300L  •
 3001 and 3005. Associated with
 characterizing wastes, determining their
proper management and monitoring the
performance of waste management
units, is a panoply of testing methods
that address the sampling and analytical
procedures to be used. These methods
ensure accuracy, precision, and
comparability of test results.
  EPA Publication SW-846. Test
Methods for Evaluating Solid Waste.
.Physical/Chemical Methods" contains
those sampling and analysis methods
that EPA has, in principle, approved. In
situations where the regulations require
the use of appropriate SW-848 methods,
the regulations specify the Second
Edition of EPA's SW-846 manual (1982)
as amended by Updates I (April 1984)
and D (April 1985). As described in more
detail below, since 1985 EPA has issued
many new SW-846 methods as
guidance,  and has issued a Third Edition
of SW-840. These later methods have
not yet been approved. In January. 1989.
EPA proposed to amend the regulations,
' to approve the use of all of .the new
methods, in addition to the older one*. -
  Some of the new methods (including
the 47 covered by this rule) were
proposed for approval in 1964. To
expedite the use of these particular 47
methods, this final rulemaking provides
that these methods are approved for use
where the regulations require
compliance with appropriate SW-848
methods. The existing Second Edition
methods continue to be approved. EPA
also intends to proceed with the January
1989 proposal (excluding the 47 methods
approved today), so that all new
methods contained in the Third  Edition
of SW-846 (and Update I) will be
approved.
B. Nature of the SW-846 Manual

  Approved and standardized testing
and quality control (QC) procedures are
needed to assist both the regulated
community in complying with RCRA
 testing requirements and EPA officials
in enforcing them. Thus, the Agency
 publishes and maintains a guidance
 manual Test Methods for Evaluating
 Solid Waste, Physical/Chemical
 Methods". OSW publication SW-846.
This manual provides a unified, up-to-
 date source of information on sampling.
 analytical and QC procedures related to
 compliance with the RCRA regulations.
 It brings together in one reference
 document all of men procedures that
 have been approved by the Agency for
 use in the RCRA regulatory program and
 m determining compliance with the
 RCRA requirements. However,  except
 when regulations specifically require
 the use of certain SW-848 test methods
 or QC procedures, use of the methods
 contained hi SW-846 an not mandatory.

-------
          Federal Regbtor / Vol 54. No. 188 / Friday, September 28. 1988 /  Rules and Regulation*    40281
  OSW flnt published SW-646 in May
1980, when the Agency promulgated
HUM I of the hazardous waste
regulation* (45 FR 33085-33588).
Advances in analytical instrumentation
and techniques an continually reviewed
by OSW and periodically incorporated
into SW-846 to maintain consistency
with changes in the regulatory program
and to improve method performance
(e.g.. accuracy, precision, ruggedness,
and sensitivity) and completeness.
Therefore, in 1982 the Agency issued the
Second Edition of SW-646. and in
March of 1987, the Third Edition of SW-
846 became available. The Agency has
since proposed that the Third Edition of
SW-846. together with Update I replace
the Second Edition as the compendium
of approved testing and QC procedures
(54 FR 3212-3229, January 23,1989). The
Third Edition of SW-646 broadens the
scope of the manual with new methods.
more guidance, and up-dated QC
procedures.
  EPA  emphasizes that this guidance
manual is a "living" document and will
change over time as new information
and data are developed. EPA solicits
any available data and information that
may affect the usefulness of this manual.
Furthermore, regarding those regulations
that mandate the use of appropriate
SW-846 methods for specific areas of
RCRA compliance, the Agency will, of
course, separately propose to change
those specific regulations to incorporate
the revisions to SW-846. An appropriate
comment period will be made available
for those methods made mandatory in
the eventuality of that rulemaking. This
does nut mean that the updating of the
guidance document needs to have a
prior proposal, or that it need await the
completion of the rulemaking. Such a
proposed rulemaking would affect only
the use of SW-646 as a mandatory
requirement for certain elements of the
RCRA program (see next section).
C Mandatory Use of the Manual
  Several of the hazardous waste
regulations under subtitle C of RCRA
require that specific testing method*
described in the Second Edition of SW-
848 be employed for certain
applications.1 For convenience of the
                            	
pta. pondi nd bsooM. WhHt Appndta I to Ml
family adopted or mptrad by EPA. aw Aamqr
       •MOfttttl
Appendix I M Mxcpubli for iWtonatai* s
-npmrautto Mopb" (i«« j m»(cn. runny.
I SSUl flaoaiporalM by
reader, the Agency is listing below the
sections of 40 CFR Parts 260-270 that
require the use of appropriate SW-846
methods. As noted earlier, any reliable
anlytical methods, including any version
of SW-846. mey be used to meet other
requirements in parts 260-270. Use of   /
the Second Edition is currently
mandatory for the regulations listed
below:
  (1) Section 260.22(d)(1)(i)—Submission
of data in support of petitions to exclude
a waste produced at a particular facility
(i.e., delisting petitions);
  (2) Section 201.22(8)—Evaluation of
waste against the corrosiytty
characteristic;
  (3) Section 261.24(a}—Evaluation of
waste against the Extraction Procedure
toxicity characteristic;
  (4) Section 264.314(c) and
1265.314(d)—Evaluation of waste to
determine if free liquid is e component
of the waste; end
  (5) Section 270.62(b)(2)(i)(C)—
Analysis of waste prior to conducting a
trial burn in support of an application
for a hazardous waste incineration
permit

D. Origin of Today'* Final Rule
  On October 1.1964 (49 FR 33788-
33812). EPA proposed several changes to
the subtitle C hazardous waste
regulations. These proposed changes
included the following elements:
  (1) Addition of 61 new methods to
SW-846;
  (2) Mandatory adherence to the
procedures and methods in SW-846 for
all RCRA testing:
  (3) Elimination of requirements to test
for certain compounds when conducting
ground water monitoring;
  (4) Use of screening tests when
monitoring ground water for hazardous
constituents; and
  (5) Use of the Hierarchical Analysis
Protocol for ground water screening.
  Many comments were received on the
proposal The Agency evaluated these
comments and. as a result decided not
to promulgate the October 1,1984
proposal. Instead, the Agency revised
SW-446, as a guidance manual to
incorporate many of the suggestions
made in the comments and undertook
other action* to address changes to the
ground water monitoring regulations. On
March 16.1887. EPA announced the
availability of the Third Edition of 3W-
848 in the Federal Register (52 FR 8072).
  The Agency has since proposed in a
separata rulemaking that the Third
Edition of SW-846, together with Update
            put JBfc ASTM Bunted TMI
 Method* far PUdi PMM of Uqohb by Bate Fto*
 GtaMd Twtar Md AS1M MMOwe Twl kWhodi
 kr IlMh POM by PMMkrMwMM OoMd Twtar.
L be substituted in 1280.11 as the
approved, incorporated reference for
parts 260-270 in lieu of the Second
Edition of SW-846, the currently
incorporated reference in | 260.11 (54 FR
32*12-3229). The effect of this proposal
would be:tl) To require use of the Third
Edition as amended by Update I, for all
testing for which the SW-846 methods
an specifically mandated in current
subtitle C regulations (see list in H.C.);
and (2) to update all informational
references to SW-846 wherever they
occur in 40 CFR parts 280-270.
Furthermore, the proposed rule would
require persons performing RCRA-
related testing, whether or not they an
using SW-446. to follow Quality Control
procedures detailed hi Chapter One of
the Third Edition. Update I of SW-846.
  This final rule constitutes a separate
approval and adoption of 47 methods
now contained in the Third Edition of
SW-846 as amended by Update L These
47 methods wen among 61 methods
originally proposed hi the October 1.
1984. Federal Register notice. In light of
the comments received on these 47
methods, some of the methods have
been revised. The Third Edition and
Update I of the Third Edition of SW-646
already contain the revised versions of
the 47 methods proposed hi October
1984.
  Through today's final rule, use of
these 47 newly-approved methods
becomes an acceptable means of
compliance when the regulations
specifically mandate use of appropriate
SW-846 methods (see list hi H.C.) and
when the appropriate procedure
includes one or mon of these 47
methods. Hence, persons required by
regulation to use SW-846 methods will
be responsible for adhering, as
appropriate, to either SW-846. Second
Edition as amended by Updates I and Q.
or to these 47 newly-approved methods
that now appear in the Third Edition
and its Update L All other portions of
the Third Edition and its Update I are
not approved or mandatory for anyone
at this time, but may be in the future
(see Proposed Rule, 54 FR 3212-3229).

m. Iseuee Dtecnsssd m and Arising
From the October 18M Proposed Rule

A. Overview of Proposed Rule

   The October 1,1984 Notice of
Proposed Rulemaking (NPRM) proposed
five major revisions to the RCRA
hazardous waste regulations, each
nlated to testing and monitoring
activities (see HO. above). A key reason
behind the October 1984 proposal was
that ground water monitoring required
 analysis for "all" or "each" constituent

-------
  40262     Federal Register / VoL 54. No. 188  /  Friday.  September 29. 1989 / Rules  and Regulation*
 listed on Appendix VTJI of part 281 as
 required under 40 CPR Part 204.
   The Appendix Vm list has presented
 a number of problems when used for
 purposes of pound water monitoring.
 These include practical analytical
 problems such as listings which are
 large categories of chemicals, the
 dissociation or actual decomposition of
 many Appendix VID constituents when
 placed in water, and the lack of
 analytical standards or analytical
 screening methods for many
 constituents.
   EPA acknowledged in 1982 that it lack
 analytical methods for nine  of the
 Appendix Vffl constituents (see 47 FR
 32206, July 28,1982). Also, in 1984. EPA
 proposed to eliminate 23 Appendix Vffl
 constituents from the ground water
 analysis requirements (see 49 FR 38786,
 October 1.1984).
  EPA amended its regulations of July 9.
 1987, to establish a new list  of
 constituents for ground water
 monitoring (52 FR 25942-25953).
Appendix IX of part 264 replaces
Appendix VIII of part 281 as the ground
water monitoring list Appendix IX to
part 264 is made up of those compounds
                                 on Appendix Vm for which it is feasible
                                 to ana!
      yze in ground water samples,
                                 plus 17 chemicals routinely monitored in
                                 the Superfund program. This change has
                                 altered the basis for much of the
                                 October 1984 proposal. For this reason.
                                 only the addition of 47 SW-846 methods
                                 is finalized In this rule.
                                 B. Other New Methods in SW-840 That
                                 Are Not Part of Today'» Rule
                                  The Third Edition contains 72
                                 methods that are new to SW-846. Of
                                 these, 47 are covered by this rulemaking.
                                 As noted earlier, these 47 methods were
                                 among 81 methods first proposed in the
                                 1984 NPRM. Four of these methods
                                 appear in Update I to the Third Edition
                                 of SW-846. not in the Third Edition
                                 itself.
                                  The Agency's January 1989 proposal
                                 to change the incorporation by reference
                                in 1260.11 from the Second Edition of
                                SW-846 to the Third Edition and Its
                                Update I (54 FR 3212-3229). covers not
                                only these 72 new methods in the
                                current Third Edition, but also 14
                                methods that are new to SW-846 as of
                                Update I to the Third Edition. If that
                                proposal Is finalized unchanged, all
                 methods contained in the Third Edition
                 and Update I of SW-846 (including the
                 47 methods adopted today) would be'
                 applicable where regulations
                 specifically mandate use of appropriate
                 SW-846 me'thods.
                 C. Method* Adopted in Today't Rule
                   The 47 methods being addressed In
                 this rule are listed in Table 1. One other
                 method proposed in 1984 and contained
                 in the Third Edition and Update I is •
                 Method 9090. Compatibility Test for
                 Wastes and Membrane Liners (as
                 revised). Method 9090 is not included in
                 today's final rule. Rather, the Agency
                 has sought further comment on the
                 revised version (54  FR 3212-3229). The
                 remaining thirteen of the 61 methods
                 proposed in 1984 are not included
                 because problems were encountered
                 during reevaluation following the •
                 comment period. Data generated by the
                 public and by EPA has demonstrated
                 that the methods could not be used in
                 their published form for the purpose    .
                 stated. These methods are listed in
                 Table 2. The Agency does not plan to
                 finalize these methods now. or in the
                 near future.
                               TABU 1—SW-846 METHODS ADOPTED m THIS FINAL Rui£
                              Tito
  0010
  0020
  0030
  1320

  1330

  3611
 Modttod Mefliod 9 SftinpInQ TnlnH
 Souro* »MMim«i< Sarepang SMS
                 Sta
                          ngnwttiodtoM
        ganfc SampSng Train.
 MvMpto ExVactton Procedure.
                 Stack avnplng method tor I
                 Stack Mmphx method tar»
 Extacton Procedure tor Oty WMlo
                  ____      ^
                 Eii *c sun procedure used tof otsteno
                  chemfcaly feed.
                 EMclon procedure* MM! tor drtrtn

        AlumfeM Column Qt*nup and tapmtton of Potato
                                                                                        neater.
  eoio
  7000
  70B1
  7188
  7210
  •7211
  73SO
  •7361
  7480
  •7461
  TWO
  7770
  7640
  7641
  7610
  7611
  7680
  •7661
 Protocol tor Ana** of Softem drWdow horn
  Saing Ti«ln(VOST).          ^^
                                           Votaflto Organic
                                                   ™
                                                           MM a cleanup tooMoju* tor oft/ msMoM. PrepoMd m Metnd 3670.
B«ryeum (AA, Oract <
                                                   MMhod3720.
                                                 Qenml mMhod tor nwMpto
                (D
OoDper (AA. Orect AapMton)
ogr«pri»).
AAmrtwl  ^^  __...
  HsffiBOt AA IMvlOdL PfOVIOM lOW
           igraphy msXod.
Copper (AA. FumsM T«oMqM).
Iron (AA. Dkwi AsptMtort -~—
msalputoipe
tan (AA, Funwoe Te
                                                     lAA
                                 i Ml and anafcscel tadbaty.
               MAapln
         (AA, Fumeo* Technique).
                                                     lAAmMhod.
      (AA.Dta
      (AA.DkeelAs
                     AA NMVIOflL
                     ^^ HiiiaiMMl
                     AAmetwd
                            AA
                                                         tendsnaVtosHiiaja^.

                                                         I and antlyeee) I
       (AA.FH
2tae (AA. Dtael Aaokatgn).
       Zhie(AA.IHmaeeTe
       Tote) Onjsnte Hsadss (TOX) ey I
                 QfopnMa) wnvos AA
                 RamsAAmstiod.
                                                                  awfM aVW WpyvOII I
                                                                        •WOryVCOl tOOaWVOJUaX
       ToMOmsntoOsmi
       Pheneles	
       Tolel
       OlendO
             OlandOreaM.
       CMorvCxriwig* Ceaaotf of Soai
                               torahtdg*!
                 M8TH*
                 ToM ol and
                 TcW eland
                 SOI few «M

-------
           Federal Register / Vol. 54. No. 188  /  Friday. September 29, 1989 / Rules and Regulations    40263
                          TABLE 1—SW-846 METHODS ADOPTED m THIS FINAL RULE—Continued
Mettwd
•Ml
3100
•131
•132
•200
•2SO
•2S1
•29*
•310
•31S
•320
TBe
<*ifr~Bn**mt Capartty 1* *«••
Satoatad Hydraute ConducSvRy. Saturated Uecheta ConductMty.
and toattac Parmeebety.

NNrala 	 _ — _ 	
*»*-*•*- 	
CMoitoa- 	 ___ 	
rac»on-
                                                TNa fiMtod *M propoaad « tr> UtarrvM to Method 1110 ki an aqutootency
                                                 peWon.Afler evaluation by NEK, Method 1120 «M tound to ba not comparable
                                                 In DficWon or occurocy.
                                                Lack ol auMdanl data  on eolumn |»»aalmanl and oondOortng.
7561
        Oamhm (AA. Fume* TacMqua)..
                       MdabyHPLO.
                                                 quanca*. aMon vdumM, and •» aNact of •» toadbig of organic compound* en
                                                 •ta eokmn to pam* nwtnd to ba adaquatty daftwd.
                                                EPA atuoynoTcataa «eeuraey prottOTa.
                                                                         of otomup pvooodiw ond HPLC to ooKnnlno
•330

•410
Mil
MOO
W10
•620
TWO
           Boflto wtd Acoc Modhi
No Mapportng dttB on oflocttvonoM of ciMrap prootdw ond HPLC lo
 VM VMlylM. OuortoMbl*) praoWon ond ooounKy.
Too  ouooopttilo to MortoranoM for
    cMcoJ Analyoto Prolo
           law I eMM^b^^^A C*^h«**^ikAAM«M«
           oy mvowowi apocvoooopf-*
ToM NBregafvPhoaprnroM Qaa Ch
Mated nan aamMv* anouati tor da Mandad pun^oaa.
Malhod not •amMw anough tor ta Mandad pupoaa.
•011
•037
IMnvMDaMion PIOOMM for Appondh VNI Oofflpoundt«
PhntodagiaJaMaOianMaa	
              QiavtnMfc
Mattiod not amaWva anough tor to Mandad i
Malhod not aanaHha anoupti tor la) Inajndad purpoaa.
UnoortoJn now tvot ond fOK*Hv fOMto to Vio 4
PraoWon and aanaNMly not i
A Comment* Regarding the 47 Method*
Adopted in Thit Final Rule
  EPA received comments addressing 25
of the 47 methods adopted in mis final
rule. Eleven commenten made 98
specific comments or queries. Five of
these methods received 66 percent of the
total comment: these methods are 1330,
1320, WOO, 9131. and 0030, which an
discussed Individually below. For other
comments and the Agency's response
thereto* we "Public Comment
Summaries and Responses far 40 CFR
parts 280 and 261. Forty-Seven New
Analytical Methods Approved for
subtitle C RGRA Hazardous Waste
Testing, Propowrf Rule-October 1,
                       or questions
                   thods were framed
1964," ta this docket
  Many of the
regarding these 471
against the proposed requirement of
mandatory use of SW-846 methods for
all testing and monitoring activities
required under subtitle C That will not
be the case under this rulemaking!
except when regulations specifically
require the use of certain SW-646 test
                               methods or QC procedures (see ILC),
                               the SW-846 manual is a guidance
                               document and is not mandatory.
                                 In this context, several commenten
                               asked for clarification on the regulatory
                               status of Methods 1320 (Multiple
                               Extraction Procedure) and 1330
                               (Extraction Procedure for Oily Wastes)
                               in relation to Method 1310: Extraction
                               Procedure (EP) Toxldty Test Method
                               and Structural Integrity Test Through
                               today's rule, all three an approved
                               methods. However, Method 1310 is
                               required to be used to determine
                               whether a waste exhibits the
                               characteristic of EPToxidty under 40
                               CFR 26L24 and Appendix U of 40 CFR
                               part 261, (i*, whether a waste to
                               hazardous under subtitle C of RCRA).
                               On the other hand. Methods 1320 and .
                               1330 an not mandatory. They wen
                               created for specific applications to
                               wastes that an already defined as
                               hazardous as part of the permitting and
                               debating process, and are not used ta
                               defining whether a solid waste exhibits
                               the toxidty characteristic
                               Consequently, they an employed on a
                               caae-by-case basis when requested by a
                     permit writer. (Note that if these
                     methods an used to support • petition
                     to deUst a listed waste at a particular
                     facility under 40 CFR 28O22(dHl)(i), use
                     could become mandatory.)
                       Several commenten questioned the
                     rationale for providing more than one
                     method for certain analytes or
                     parameters. These commenten argued
                     oat the different methods may produce
                     data that vary ta precision and
                     accuracy, ta addition, they Indicated
                     that some methods an considered
                     outmoded by current technology. The
                                i the presence and/or
                     concentration of a given analyte or
                     parameter with varying capabilities of
                     precision and accuracy, and that some
                     methods an seldom used due to new
                     technology. However, the Agency
                     believes that each method approved
                     provides data acceptable within the
                     •cope of the method as defined ta
                     section LO. "Scope and Application" of
                     each method. The philosophy of the
                     Agency is that the manual should
                     remain a compendium of approved

-------
 40264    Federal Register / Vol 54, No.  188 / Friday, September 29.1969 / Rule* -and Regulation
 method* available tot on ml the
 dUcntion of the various program* and
 permit writers operating under RCRA,
 When a specific method if not required
 and when multiple methods are
 available for the analysis of the same
 analyte or parameter, then the permittee
 or the regulated facility or laboratory
 performing the analysis may choose
 among the appropriate methods.
   The vast majority of the comments
 submitted requested specific
 clarification on method procedures or
 offered recommendations for improving
 these methods. These comments did not
 suggest that the currently applicable
 methods were not protective of human
 health or the environment nor did they
 provide any reason to believe that the
 currently applicable methods were
 infeasible as a technical matter. Some of
 these detailed recommendations for
•technical improvement in SVV-848 have
 been adopted, some have been rejected.
 and others will undergo further ERA
 consideration. At this time, however, the
 Agency is not prepared to adopt all the
'technical suggestions, even though some
 or all of them may ultimately prove to be
meritorious. The Agency believes the
•beat use of its resouces and the needs of
 the regulated community are such that
 these technical improvements can await
 a future update effort The Agency's
response is detailed in (he Public
Comment Summaries and Response Jn
this docket

2. Method 133ft Extraction Procedure for
Oily Wastes
  Method 1330 received 22 specific
 comments from seven commenten,
many of which asked for clarification on
 technical procedures. The Public
Comment Summaries and Responses
document in the docket contains the
Agency's discussion of the technically*
oriented comments. One commenter
contends that Method 1330 jirovides for
a wontiaw scenario with regard to the
Imchmg'drheavy metals which were
either contained m the oil or were
formerly shielded from the teaching
media'bylhe oIL The ODmmeattr
jdowh/ind that them melahn
become:* v^flaMe to tlw'anvlnnnientvt
such a slowTata-thatthoy wffl new he
detected m otherwise natnraBy-
occuRing leachetae.
  While we agree that Method 1330 is
intended to be a worst case toenario. It
Is not 4m unreasonable •oanario. Method
1330 was designed to measure the
leaching potential «f metals fan an-oily
waste in a.reasonably quick and
efficient t"*n*">f batrxl oil the
assumption ihat the ail,phaseis'mobile .
and wjlljnigrste away from Jhesdlid, .
 Snch mobility has been seen in a
 number of situations. However, enough
 data from a variety of oil samplings to
 determine method accuracy has not
.been collected; hence pass/fail criteria
 have not been established. Thus, the use
.and interpretation of this method are
 currently left to evaluation by
 appropriate regulatory officials on a
 case-by-caie basis.

 3. Method 1320: Multiple Extraction
Procedure

  Method 1320 received 12 specific
comments from four commenten. many
of which also asked for clarification on
 technical procedures. See Public
Comment Summaries and Responses.
One commenter recommended against
the inclusion of Method 1320 in Table 1
of Appendix HI of 40 CFR part 261
before regulations have been
promulgated that designate the
implicated wastes as hazardous, or
govern their treatment storage, and
disposal. The commenter states that it is
more appropriate to evaluate data from
the extraction method on the
•appropriate wastes  as the regulated
characteristics of these wastes develop,
rather than to make this method
mandatory now.
  The Agency agrees The Agency -la, therefore,
                                                method Jn itsrumntlorm.
                                    £ 7nformatlon-RalatedtoTablu3and
                                    A Appendix m. fort an
                                     Along with this final rule, the Agency
                                    la repubUshing Tables* and 3 of
                                    Appendix m, part 261. HWe 2 Identifies
                                    the approved measunmentmethods
    able lor inorgank spedes and other
mnceUaneoua groups trfonalytae
oontaJned m 8W-0HL Table 3
summarizes the contents flf SW*44Bmd
supplies the specific aection'and method
•umber'for sampHr*g end-analysis
                                    methods. Rapublieation of these'two
                                    tables to their entiraty to intended to
                                    five goidaaoo-on when appropriate-EPA
                                    approved methods •n'found m either
                                    the 8eoood«r Third Edltton*.
                                      m IhatTaapeotiBota that parts nf these
                                    tablaa an nrinhsnged froiathe earrant

-------
            Federal Register /  Vol 54. No. 188  /  Friday, September 29. 1969 / Rule* and Regulation!    40285
  tables appearing in the Code of Federal
  Regulations. Those unchanged portions
  of the tables are included hi today's
  revision strictly for the convenience of
  the reader. These portions were not and
  are not involved in this rulemaklng.
  Other portions of Tables 2 and 3 are
  being updated to reflect the approval of
  the 47 methods which are the subject of
  this rulemaking, and to provide easy
  reference to the source documents.

  IV. State Authority

 A. Applicability of Ruin in Authorized
 State*
   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
 3006.7003 and 3013 of RCRA, although
 authorized States have primary
 enforcement responsibility.
   Prior to the Hazardous and Solid
 Waste Amendments of 1084 (HSWA), a
 State with final authorization
 administered its hazardous waste
 program entirely in lieu of EPA
 that State. The Federal requirements no
 longer applied hi the authorized State,
 and EPA could not issue permits for any
 facilities In the State where 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 tune 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 300B(g) of
 RCRA, 42 UAC. 6828(g), new
 requirements and prohibitions imposed
- by the HSWA take effect in authorized
 States at the same time that they take
 effect in nonauthorized States. EPA is
 directed to carry out those requirements
 and prohibitions m authorized State*.
 including the issuance of permits, until
 the State is granted authorization to do
 so. While States mutt still adopt
 HSWA-related provisions as State law
 to retain final authorization, the HSWA
 applies in authorized State* fat the
 interim.

 A Effect on State Authorization!
   Today'* rule is imposed pursuant to
 pre-HSWA authority. Therefore, It is not
 immediately effective in authorized
 State*. The requirements will be
 applicable only hi those States that do
 not have interim or final authorization.
In authorized States, the requirements
will not be applicable until the State
revises its program to adopt equivalent
requirements under State law.
  40 CFR 271.21(e)(2) requires thai
States Jhat have final authorization must
modify their programs to reflect Federal
program changes and must subsequently
submit the modifications to EPA for
approval. The deadline by which the
State must modify its program to adopt
today's rule is July 1.1991. These
deadlines can be extended in certain
cases (40 CFR 271.21(e)(3)). Once EPA
approves the modification, the State
requirements become Subtitle C RCRA
requirements.
  States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being promulgated today to
determine whether they meet the testa
for authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until the
State regulations are submitted to EPA
for authorization approval. Of course,
States with existing regulations may
continue to administer and enforce their
standards as a matter of State law.
  States that submit their official
application for final authorization less
than 12 month* after the effective date
of these standards are not required to
include standards equivalent to these
standards in their application. However
the State must modify its program by the
deadlines set forth in 1271.21(e). States
that submit official applications for final
authorization 12 month* after the
effective date of these standards must
include standards equivalent to these
standard* in their application. 40 CFR
271J sets forth the requirements a State
must meet when submitting its final
authorization application.
V. Effective Date
  This rule will be effective 30 days
after final promulgation. Section 3010(b)
of RCRA provides that regulation*
promulgated pursuant to subtitle C of
RCRA shall take effect six months after
the date of promulgation. However.
section 3010(b)(l) provides for • snorter
period if the Agency find* that the
regulated community doe* not need six
month* to comply with the new
regulation.
  Since today'* rule I* designed to
incorporate te*t method* already known
to and used by the regulated community
and since use of the Second Edition of
SW-8461* allowed, the Agency believe*
that the regulated community will not
need six months to come into
compliance. Therefore, these
amendments are effective 30 days after
promulgation, as provided under the
Administrative Procedure Act

VL Regulatory Analyses

A. Regulatory Impact Analysit

  Under Executive Order 12291, EPA
must determine whether a regulation is
"Major" and. therefore, subject to the
requirement of a Regulatory Impact
Analysis. This rule will approve, but not
require, the use of these 47 methods
found in the Third Edition of SW-846
and Update L The 47 methods to be
finalized hi this rule offer the regulated
community, hi some cases, refinements
of existing methods and, in other cases.
new technology that provide alternative
methods to those now available for the
analysis of certain analytes or
parameters. This final rule entails no
additional testing or record keeping
burden and, therefore, no additional cost
burden to the regulated community.
  Therefore, the Agency does not
believe these added methods wul result
hi an annual effect on the economy of
SlOO million or more; or a major Increase
In crate or prices for consumers,
individual Industrie*. Federal. State, or
local government agencies, or
geographic region*; or significant
advene effects on competition.
employment, investment productivity.
innovation, or hi domestic or export
markets. The Agency believes that
today'* rule I* not a major rule under
Executive Order 12291 and. therefore.
ha* not prepared a Regulatory Impact
Analysis (RIA). This regulation waa
submitted to the Office of Management
and Budget for review as required by
Executive Order 12281.

A Regulatory Flexibility Act

   Pursuant to the Regulatory Flexibility
Act (5 U.S.C. section 601-612, Pub. L 96-
354. September 19, I960), whenever an
agency I* required to publish a general
notice of rulemaking for any  roposed or
ny proposed
end make
final rate. It must prepare
available for public comment a
regulatory flexibility analysis (RFA) that
describes the impact of the rule on small
entities (La* small businesses, small
organizations, and small governmental
Jurisdictions). No regulatory flexibility
analysis I* required, however, if the
head of the agency certifies that the rule
will not have a significant impact on a
substantial number of email entities.
  This rale will not require the purchase
of new Instruments or equipment The
regulation require* no new report*
beyond those now required. The
analytical techniques approved here can
either be handled by small facilities, or

-------
 40266    Federal Register / VoL  54. No. 188 /  Friday, September 29,1989 / Rules end Regulation*
 an widely available by contract at e
 reasonable price. Furthermore, small
 entities may not need to use any of
 these 47 methods. EPA to certifying that
 this rule will not have a significant
 economic impact on e substantial
 number of small entities (es defined by
 the RFA). Therefore, in accordance with
 5 U.S.C. eotyb). I hereby certify that this
 rule will hot have a significant adverse
 economic impact on a substantial
 number of small entities.

 VIL List of Subjects In 40 CFR Parts 280
 and 281

  Hazardous waste, Reporting and
 racordkeeping requirements.
  Dated September 15,1960.
 Wutta«K.Reffly.
Administrator.

  For the reason* set out in the
preamble, title .40 of the Code of Federal
Regulations is amended as follows:
PART 2*0—HAZARDOUS WASTE
MANAGEMENT SYSTEM: OENERAL
  1. The authority citation for part
  mtinues to read es follows:
                                260
  continues to
    Authority: 42 U.S.C. BOOS. 0012(i). 6921
  through 002*. 0030,6834. 0035. 9837.003*.
  0839, and 0974.

  Subpert B—Deflnltione

    2. Section 260.11 is amended by
  revising the fourth reference in
  paragraph (a) to read as follows:
8265 Port Royal Road. Springfield. VA
22161. (703) 487-4800. The document
number is PB87-120-291 and the cost to)
$4&S5 for paper copies and $13.50 for
microfiche.
12*0.11
  (a)* * "Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods", EPA Publication
SW-848 (Second Edition. 1982 es
amended by Update I (April 1984), and
Update 0 (April 1985). The Second
Edition of SW-848 and Updates I andU
are available from the National
Technical Information Service (NTIS),
TART 281—IDENTIFICATION AND
USTINQ OF HAZARDOUS WASTE

  3. The authority citation for Part 261
continues to read as follows:
  Authority: 42 UAC 0006. 0012(«), 0921. and
0022.

  4. Tables 2 end 3 of Appendix in are
revised to .reed es follows:

Appendix ID—Chemical Analysis Test
Methods
  TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED m SW-848*


Abn*Mm__ 	
*"*T
IU*..

BiMeMt
r^rfnk.
OlEkM>

rviMi
Copper 	 .. 	
fern
l_<


ltaH»y
IMyhifaiM.
I^B^kattl
Onfen
SeMun__ 	
Mm
SBMT 	
•n»e«
Tta.

T**^rfcir"* """i
a.4u_r
SutSMS 	
ToM Organic CMtoon 	
PhOTota 	
ToMOaOtaM 	
•••-*•
CMMUM 	
Qreet Alpha and Grew Beta 	 : 	
AktllBK^EeBMihMl Ca^aM^eM laMvaW^OM



•nin
•"'"
eflio
W10 	

•nin
•nin
•nin

71M
•mn
eoiO TftO 7M1 	
«mn ,

0010. 7400. T4*1

•MA 	 ,,„
•nin
7550 	
•MB
mio
fnin
0010. 	 	
•mo TSJO, IUM
W10. 79W. 7K1 	 _.__ _ 	

fftt

•"•
Q1«1 M99
•»•
0280, 0291. east 	
•9M

•MWMM B^MbM.
MMhodW

•7040,7041
7000 7001
'7000, 7001


7100,7191

7100, 7101
7116.7196,7197

7420, 74*1


7470,7471

7520,73(1

7740,7741
7700.7701


•010
0090
0000



   TtaTnMEdNonandai
        ^6lB
        jat
        Of
tw Second •EaUon end » Upd*M I and I when I fc
                    (MMIem
                                         UMt*TtMEdatonto
                          taatnatiuta.

-------
          Federal Register /  VoL 64, No. 188 / Friday, September 29, 1989  / Rules and Regulations    40287
        Mcttwd «wee to uMd I mu*
•dMt 9* «Muxc aett«rMar«ad wnpia to
      i ma c»«cay to aw
b« nr»o»d»d by *• manual JMlrton tpneHM to proo«to» 7.1 ol fcMhodOOW. .totprtor
D pH 4 *•) 1 +8 NeOH. AIMr lw manual dMWton to compMad. 8w auMntfyar manBaid
Ito JUBaHqn to M««iad 9085.
to almpiaad by conracttno "*
                         TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED m SW-846'
TM

•
Qualrr


Method Detortton limit — . 	
Data Rawwtfnn

nefxtrmn











Add &Qjesoon of Weisrs tor Tow necovi
AASorlCP.
Add Dipffsfcon of Aqueous Samples and
AASorlCP.
ACK! OgrslKm of Aqueous SamDtes and 1
AAS.
Disaototton Procedure tor Pis. Preense. or
Add pQertton of SeoTmenex Sludges and


Aluminum. Fie*** Mff
AiftVfvy, Remt AAS, ..._._ 	 , 	

Areenfc. rVneoe AA* 	



BeryfJum. Flvf^t *•*£
Beryejum, Fumeov A*?
Certn*im. Ftamt AAff

PailiLalii. FtafTlai^VAfi





«fc^__ 	 1 	 • • 	 • 	 k JfclM 	 U— « •». J 	 «•





















MBhlai rw nuiaM^MMftrl lalAtalfJ BTaT AnBtWa* HV FlMlBl
Extrecto tor Tot* Metals tor Analysis by feme
Exttads tor Total Metals tor Analysis by Furnace
Wtntf
5ofls


































Manganaaa.FwnaeaAA8 	
ManwykiUvtfWaaia. Manual CeUVap
• a^Aat^^BMBMB I^HHai^ AAfl









•MBtMaT* BlMBBA AalA




















TnM£dMton
Swdon'No.
.0
.1
2
.3
1.4
1.5
1.8
2.0
2.1
22
2.3
2.4
2.5
2.8
3.0
3.1

34
34
34
3.2
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
44
34
34
34
34
34
34
34
34
34
44
44
MMtodNo.

















3006
3010
3020
3040
3050
•8010
7000
7020
7040
7041
7080
7081
7080
7081
•7080
•7081
7130
7131
7140
7180
7181
7185
7188
7187
•7188
7200
7201
•7810
•7*11
-7380
•7381
7420
7421
7450
•7480
•7481
7470
7471
7480
7481
7920
•7850
7810
7740
7741
7780
TTtl
•7770
•7840
•784
TITO
•7810
•781
Second EtMon
SadtonNo.
0.0
0.1


*













4.1
4.1
4.1
4.1



74
7.9
74
74
7.0
7.0

7.0
74
7.0
7.0
7.0
7.0
74






74
84

74
74

74

74
7.0
74
74





MMhodNo.







.










3010
3020
3040
3050



7040
7041
7080
7081
7080
7881
	 _ 	
7130
7131
7190
7191
7195
7198
7197



.


7470
7421

7470
7471

7520

7740
7741
7780
7781






-------
40268    Federal Register / Vol. 54. No. 188 / Friday, September 29, 1989 / Rules and Regulations
                  TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED m SW-846 «—Continued
TiSS
Hint, nvnt AAS... 	 „,
Zinc, Fumaoa AAS
Organic Analyles 	
Sampang OonsldoniBons.-.
Sample Preparation Methods . 	 	
Extacaons and Preparations 	
Qfgmlc Extraction tod Sample Pfflfurmion 	

CoxMnuovt iJ«f*M.iquW Extraction 	 	 , „ ,

.






Untisortc CxUi'*""
VWM. plkiMnn ,. 	 .__ 	 t

Protocol tar Analysis ol Sorbet* Cartktg** from VOST 	





Cttanup
Alumina Column Ofanup 	 	 .„...,..,.. 	 , ...
Alumina Column Cleanup and Scparsfen of Petroleum W«
SMca GtX ChOnurj
0*1 P*rm>ai"j'i Ctesntx> ,_ 	
Arid Pass Partition Desnup


Vft% ,,. . L .,„„- ,„<





DstsiriimUuii of Orqt«<* AnaMet
Gaa QwomstograpHc Mathods 	
miogenatad Votatto rwQt*"/^
NonrntooanalrJ VotaWe Organics 	


VotaWe Organic Compound} hi Water by Pwge-ind-Trap Capisary Column GC «Nh PW
and EJectrotytte Conductrvtty Dutaclor ki Series.
AeraMn, Aoy4>x>1r%, AcwtoniMe
Pnsnoh)

OrgonocMonne Pesticides and PCBs as Aioctors___
Nhraemmrtlea «nd Cycle ******
Petfifitlaft Animate Hy«t/y^n>yn
HtkMthers 	
^Us"upnospnoius Pesaoxies. CapiBary "i^iat|ii
Gas ChromatograpMc/Maas Spsoosoeplc Methods 	
GC/MS Votalllet 	 ...
GC/MS OemhflDaltit. Packed Oohmp
QC/MS tar VataNM C^patary Rnk»« 	



Total and Airienebla CyenMe (CotorfeneMc, Manua* 	
Tat* «nri Am^^to f^pnM. fft*,*.,^,. ftinomatfal 	

PunJMfcto Aynle Iliirln (BCBQ,.,.,,... 	 	
AekMaUita anrf AdAkMfeM. UariM
Sutele. (Cctalma|rtc. »momas»d. Oaoraryala) 	

Rianolcs. (CotaritnaMc. Automalad 4-AAP) 	
PlMnnteL r^eknpMMMMe URTM)
Total Bec«¥wabteOi and G^MetQra»lrne*te.Sepafalory Fun
MMM
Chtonde (Coterlmetric. Automalad Fen>cyai*la AAS) 	








^








net Extraction) 	

1

TnaTO EoKlOfl
SocMon No.
3.3
34
4A
4.1
42
42.1
42.1
42.1
42.1
42.1
422
422
422
422
422 .
422
422
44.1
44.1
44.1
44.1
44.1
44.1
44.1
44.1
44.1
4.3.1
44.1
42.1
44.1
44.1
44.1
441
44.1
44.1
442
4.32
442
442
422
422
4.4
4.4
4A
SA
SA
SA
SA
SA
SA
SA
9A
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
MMhodNo.
/ *7060
•7861
3500
3610
3620
3540
3660
3660
6030
•6040
3600
3610
•3611
3820
3630
3640
3660
3680

WJUO
8010
8011
8016
8020
8021
8030
6040
8080
8070
8080
8080
8100
6110
6120
8140
8141
8160
8240
8290
8280
8270
8280
8310
3810
3820
8010
8012
8020
8021
•8022
8030
8091
• •8038
•8038
•8038
•8080
•8085
•tsoss
•8087
•8070
•8071
•8131
•8132
'•200
•8290
•8291
•8292
Second EdWon
SecfenNo.


SA

42
42
42
SA







42

8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
82
82
82
82
82
82
SA
SA
SA
SA






Method No.




3510
3520
3540
3660
• 6030







3630


8010
8019
8020
8030
8040
8060
8000
6080
8100
6120
8140
6i60
8240
8250
8270
8310
6020
8010
8020
8030







-------
           Federal Register / Vol. 54. No. 188  /  Friday. September 29. I960 / Rules and Regulationi    40289
                      TABLE 3— SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-646 •— Continued


Proparan 	 	 	 - 	 „ 	
Extractor! Procadura tor Oiy WartM 	 	 .'. 	 	 	
pH ElaOoniatrte Maaauramar*
nH Panar Matiod 	 	 .-,., 	 	 	

SpteHte Cottfuetonot 	 	 	
CattoivExchanga Capacity of Set* (Ammonium Acatata) _. — 	 — .. — 	
. CalkNvExchanga Capacity of Sotf* (Sodium Acalata). . 	 	 „ 	

PaM Ftlwr UquMi TaM 	

Grow Alpha and  9M Sacond EdHon and ft* Updatat I and I onan * fc
                                                                                 UrMtwTNrd
                                                                                            pro«Wad«or
                                                                                            m. DC 20
6^M^arf IBK Bc5*m^23e,

               I and ».
  	       Bd906S.
to •MfflpMvd by ooflHwOHnQ ww
IPR Doc. 80-42290 FUad t-a-aO; MB am]

-------
                               RCRA REVISION CHECKLIST 68

               Reportable Quantity Adjustment Methyl Bromide Production Wastes
                                    , 54 FR 41402-41408         '
                                       October 6, 1989
                                      (HSWA Cluster II)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION
	 STATE ANALOG IS: 	
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
             PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
                       SUBPART D - LISTS OF  HAZARDOUS WASTES
HAZARDOUS WASTES FROM SPECIFIC SOURCES
add K131 and K132
to the subgroup
"Pesticides"
261.32






                               §261.32  Hazardous wastes from specific
                               resources.
Industry
•nd EPA
hazard- Hazardous waste
OU9
waste
No.

Haz-
ard
cod*

                                K131	 Wastewater  Irom  the  reactor  (C. T)
                                        and spent sulluric acid Irom
                                        the acid dryer from the pro-
                                        duction ol mothyl bromide.
                                K132	.Spent    absoroent   and  (T)
                                        wasiewater  separator  solids
                                        Irom tne production ol metfiyl
                                        bromide.
APPENDIX III - CHEMICAL ANALYSIS TEST METHODS
add, in alphabetic
order, to Table 1,
two compounds and
methods for their
analysis
Appendix III




                                    Compound
                                                  Method numbers
                               Dimethyl turf at*..
                               Melriyl brernd*..
    8250. 6270
8010. 8240. 8260
                                October 6, 1989 - Page 1 of 2

-------
   RCRA REVISION CHECKLIST 68:  Reportabte Quantity
         Methyl Bromide Production Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS /
STATE CITATION
si A re ANALOG is:
ECHJIV-
ALENT
/ MORE
x STRINGENT
BROADER
IN SCOPE
APPENDIX VII - BASIS FOR LISTING HAZARDOUS WASTE
add, in numeric order,
entries for K131 and
K132
Aooendix VII





              Industry and
                EPA      Hazardous constituents lor wtiich
              hazardous            listed
              waste No.
             K131.
             K132..
Dimethyl sulfate. Methyl bromtda.
Methyl bromide-
              October 6, 1989 - Page 2 of 2

-------
 54 FR 41402-41408
Revision Checklist 68

-------
Friday
October 6, 1989
Part  III



Environmental

Protection Agency

40 CFR Parts 261, 271, and 302
Hazardous Waste Management System:
Identification and Listing of Hazardous
Waste and CERCLA Hazardous
Substance Designation; Reportable
Quantity Adjustment Methyl Bromide
Production Wastes; Final Ruie

-------
 41402      Federal Register / Vol. 54. No.  193 / Friday. October 6. 1989 /  Rules and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Parts 261,271, and 302
 rSWM-FRt-MM-ft EPA/08W-FR-SS-01S]
 RIN20SO-AC60

 Hazardous Wasta Management
 System: Identification and Listing of
 Hazardous Waste and CERCLA
 Hazardous Substance Designation;
 ReportaMe Quantity Adjustment
 Methyl Bromide Production Wastes

 AGENCY: Environmental Protection
 Agency.
 ACTION: Final rule.

 SUMMARY: The Environmental Protection
 Agency (EPA) today is amending the
 regulations for hazardous waste
 management under the Resource
 Conservation and Recovery Act (RCRA)
 by listing as hazardous two wastes
 generated during the production of
 methyl bromide. The effect of this
 regulation is that these wastes will be
 subject to regulation under 40 CFR parts
 262 through 266, and parts 270.271, and
 124.
   In addition, the Agency also is making
 final amendments to regulations
 promulgated under the Comprehensive
 Environmental Response and Liability
 Act (CERCLA) in 40 CFR part 302 that
 are related to today's hazardous waste
 listings. In particular. EPA is making
 final the designation as hazardous
 substances under sections 101(14) and
 102 of CERCLA all of the wastes made
 final in today's rule, and designating
 under section 102(a) the final reportable
 quantities that would be applicable to  '
 those wastes.
 •rracnvt DATE This regulation
 becomes effective on April 6, 1990.
AOORISSRS: The official record for this
rulemaking is identified as Docket
Number F-89-LMBF-FFFFF and is
located in the EPA RCRA docket room
2427.401M Street SW.. Washington. DC
20460. The docket is open from MM to
4:00. Monday through Friday, excluding
Federal holidays. The public must make
an appointment to review docket
materials by calling (202) 478-0327.
Copies of the non-CBl version of the
listing background document the Health
and Environmental Effects Profiles, and
not readily available references are
available for viewing and copying only
In the OSW docket Copies of materials
relevant to the CERCLA portions of this
rulemaking are contained In room 2427.
US. EPA. 401M Street SW,
Washington. DC 20480. Both dockets are
available for inspection from WO a.m. to
4:00 p-m, Monday through Friday. The
public may copy 100 pages from the
docket at no charge; additional copies
are available at $0.15 per page.
ran niRTHtR INFORMATION CONTACT:
The RCRA/Superfund Hotline at (800)
424-9346 or at4202) 382-3000. For
technical information, contact Dr. Gate
Jenkins, Office of Solid Waste (OS-332).
U.S. Environmental Protection Agency,
401 M Street, SW.. Washington. DC
20460, (202) 382-4786. For technical
information on the CERCLA final rule,
contact: Ms. Ivette Vega. Response
Standards and Criteria Branch,
Emergency Response Division (OS-210),
U.S. EPA, 401M St. SW.. Washington.
DC 20460, (202) 362-2403.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
L Background
IL Retpome to Comments
  A. Comment!  on the Description of Manu-
    facturing Processes
  B. Comments on Individual Waste Streams
    1. Wastewater from the reactor
     •.  Generation  source of wastewaier
     b.  Effective treatment of waste water
     e. Reuse of wastewater after treatment
       In another process
    2. Spent sulfuric add
     a.  Exemption  of  reclaimed sulfuric
       acid
     b.  Concentrations of dimethyl sulfate
       and methyl hydrogen sulfate
    3. Spent alumina adsorbent
  C Mismanagement
III Relation to Other Regulations
IV. Test Methods for New Appendix  VH
  Compounds
V. CERCLA Designation and Adjustment
VL Stale Authority
  A. Applicability of Rules In  Authorized
   States
  & Effect on State Authorizations
VII. Compliance Dates          :
  A. Notification
  a Interim Status
VTO. Regulatory Impact Analysis
DC. Regulatory Flexibility Act
X Paperwork Reduction Act

L Background                '  •  •
  On April 25,1985. EPA proposed to
amend the regulations for hazardous
waste management under RCRA by
listing as hazardous two wastes
generated during the production of
methyl bromide.1 (See 50 FR18432-
16436.) These wastes were proposed as:
(I) Wastewater from the reactor and
add dryer from the production of methyl
bromide (EPA Hazardous Waste No.
K131). and (2) spent adsorbent and
wastewater separator solids from the
  • It sbMU be BMed that mt llaxantow and SoUd
Waste AmeadoMMs of 1884 ftqrirs ms Agtncjr to
makt a dvtarminattoa as to whether wastes from
ortMobremlat •MnafKtwtnc should be Ustod M
bourdon*. This ntvUlloa Is proaiula«l»d hi
•ccoraajwe with Inat M^MBWIMVI.
production of methyl bromide (EPA
Hazardous Waste No. K132).
  The hazardous constituents of
concern in these wastes are methyl
bromide and dimethly sulfate. Methyl
bromide cadses numerous acute and
chronic'effects. Acute effects include
convulsions and seizures in humans,
central nervous system depression,
human fatalities due to pulmonary
edema, and psychic, motor, and
gastrointestinal disturbances. Chronic
effects include hyperplasia of the fore-
stomach of rats, direct damage to the
brain cortex  and peripheral axons of
humans, and pathological changes in
animal kidneys, parathyroid glands, and
thyroid glands. Dimethyl sulfate is toxic
and has been demonstrated to be
carcinogenic in a variety of test animals.
  Methyl bromide Is found at levels up
to 5% in waste K131 and at levels up to
1.5% in waste K132. Dimethyl sulfate is
found at levels up to 0.5% in waste K131.
Because of their moderate solubilities in
water and high solubilities In organic  . -
solvents, these constituents are
expected to migrate from the wastes and
to be mobile  in the environment In
addition, data are available which
indicate that methyl bromide and
dimethyl sulfate may persist in the
environment and reach environmental
receptors in harmful concentrations.
thereby posing a significant hazard if
these wastes are mismanaged.
Furthermore, waste K131 is corrosive.
(See the preamble to the proposed rule
at 50 FR 16432-36 for a more detailed
explanation of our basis for listing these
wastes.)
  After evaluating these wastes against
the criteria for listing hazardous wastes
(40 CFR 261.11(a)(3)). and for the
reasons stated hi the preamble to the
proposed rule. EPA has determined that
these wastes are hazardous because
they an capable of posing a substantial
present or potential hazard to human
health or the environment when
improperly treated, stored, transported,
disposed of, or otherwise managed.
  The Agency received several
comments on these proposed waste
listings. We have evaluated these
comments carefully, and conclude that
they do not refute our (ratification for
listing these wastes as hazardous. This
notice makes final the regulation
proposed on April 25,1965. and provides
EPA's response to the comments
received on that proposal

IL Response to Comments

  This section presents the comments
received oa the proposed rule, as well as
the Agency's response. Comments were

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            Federal Register / Vol. 54. No. 193 / Friday. October 6.  1989 / Rules and Regulations     41403
 received from a manufacturer of methyl
 bromide.

 A. Comments on the Description of the
 Manufacturing Process

  The conunenter atated that the
 process described in the listing
 background document does not address
 the process they employ to produce
 methyl bromide. In particular, they
 argue that methyl bromide is produced
 at their plant as a co-product in the
 tetrabromobisphenol-A (TBBPA)
 process. In the commenter's process.
 hydrobromic acid (HBr) is produced as a
 co-product in TBBPA production and
 subsequently methylated to produce
 methyl bromide. They state that the
 hydrobromic acid is not produced in situ
 by reacting with either sulfur or sulfur
 dioxide as described in the listing
 background document
  The Agency disagrees with the
 commenter that their process is not
 described in the listing background
 document The listing background
 document describes two typical
 production processes for methyl
 bromide. The first process described
 involves the reaction of methanol with
 hydrobromic acid. This is. in fact the
 process used at the production facility of
 the conunenter. where hydrobromic acid
 is produced as a by-product from the
 manufacture of another chemical and
 then methylated to produce methyl
 bromide.
  The Agency never intended to exclude
 from the listing wastes that are
 generated from methyl bromide
 production where it is produced along
 with another product namely TBBPA. In
 fact the listing background document
 clearly states, "Hydrobromic add Is
 often produced as a by-product of a
different process at a plant so it can be
added directly as feedstock to the
reactor." We believe Oat the production
of co-products along with methyl
bromide does not alter the fact oat the
wastes generated by the proceM win
•till contain the toxic constituent! at
levels of concern. Analytical data
submitted by tUa commenter and others
who produce me thy! bromide along with
a oo-produet also supports oar
contention that these wastes contain
significant concentrations of methyl
bromide.
  The background document has bean
 revised to more clearly describe the
different manufacturing processes for „
 methyl bromide that are subject to the
 hazardous waste listing.
B. Comments on Individual Waste
Streams
1. Wastewater From the Reactor
  The conunenter provided several
rationales to support their claim that the
wastewaters generated from their
methyl bromide-TBBPA co-production
process would not be covered by the
K131 listing description. "Wastewater
from the reactor • • • from the
production of methyl bromide." The
Agency's response to these comments is
provided below.
  a. Generation source of wastewater.
The conunenter claimed that their
process wastewater is not discharged
directly from the methyl bromide
process reactor. Instead, their reactor
wastewater is carried along through a
precipitation and filtration step before it
is removed from the process and sent to
the distillation column for treatment
The commenter argued that the source
of this wastewater. therefore, was not
the methyl bromide reactor.
  The Agency disagrees with the
interpretation that die wastewater
generated by the commenter's facility
does not meet the listing description for
"reactor wastewater." In the
commenter's process, wastewater is
generated in the methyl bromide
production reactor. This wastewater.
therefore, is properly designated as
wastewater from  the methyl bromide
reactor. The additional product recovery
steps described by the commenter
through which this wastewater Is
carried does not alter the fact that the
original source  of the wastewater is the
methyl bromide reactor. Furthermore,
the commenter supplied information that
this wastewater is removed from the
process line prior to the production of
any other product such as the
commenter's subsequent manufacture of
TBBPA. As a result the source of this
wastewater cannot be claimed to be
from a production process other than the
methyl bromide process. The
wastewater leaving the conunenter •
precipitation and treatment steps dearly
meets the Usting description, and full  .
notice of nils' fact was provided.
  b. Effective treatment of wastewater.
The commenter further stated that they
have a patented treatment process to
remove hazardous constituents from
their waatwatat stream discussed   •
above. In support of their position, the
conunenter provided a copy of an Inter*
office memorandum which stated that.
the wastewater stream after this
treatment proceM contained 8 ppm or
leM methyl bromide, the detection Umlt
of the analytical method used. As a
result the conunenter contends that the
wastewater no longer contained
 significant concentrations of toxic
 constituents, and suggests that their
 wastewater should be excluded from
 regulation as a hazardous waste.
  The Agency does not consider the
/Information submitted by the commenter
 to be adequate as a basis for excluding
 this waste,  after such treatment from
 the Usting description. First the actual
 concentration of methyl bromide
 remaining in the wastewater after
 treatment could have been as high as
 the detection limit. 5 ppm. Without more
 definitive analytical characterization of
 this waste, the Agency cannot make a
 determination as to whether or not it
 would present a potential hazard to
 human health and the environment. In
 addition, the Agency has inadequate
 Information on the commenter's test
 methods, how the samples were
 collected, or the QA/QC used. If the
 conunenter wishes to provide further
 evidence to demonstrate that their
 treated wastewater should be exduded
 from regulation, they should submit a
 delisting petition pursuant to 40 CFR
 260.20 and 26O22. (Sea "Petitions to
 Delist Hazardous Wastes: A Guidance
 Manual." NT1S PB-«5-lM4M, available
 from: NTIS. 8285 Port Royal Road.
 Springfield. VA 22161 (request by
 telephone at (703) 487-4650) for a
 detailed discussion on the type of
 information and date that should be
 included in the petition.)
   C.  Reuse of wastewater after
 treatment in another process. The
 conunenter further argued that their
 methyl bromide process wastewater
 would be exempt from the K131 Usting
 description since, after wastewater
 treatment the wastewater is "recycled
 to process." In fact the  wastewater is
 injected Into the ground to extract brine.
   The Agency does not consider the
 reuse of the wastewater described by
 the conunenter to be a reclamation or
 reuse activity subject to the exemption
 from regulation as a soUd waste. The
       1 notes that this form of
 "recycling" la use constituting disposal,
 and therefore not subject to the
 exemption from the definition of a soUd
 waste. (See 40 CFR 2ol^cKl)(A),)

 2. Spent Sulfuric Add

   a. Exemption of reclaimed sulfuric
 odd. The commenter stated that their
 process does not produce a waste
 sulfuric addatraam as  described to the
 listing background document Instead.
 the add ia first stripped to remove
 methyl bromide, and man returned to
 the supplier to be used to produce virgin
 sulfuric add. They argue, therefore, that
 this  stream is not a solid waste by virtue
 of 40 CFR 261.4{aX7). which exdudes

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41J04     Federal  Register / VoL 64. No. 193 / Friday. October 6, 1989 / Rules and  Regulations
  •pent sulfuric edd used to produce
  virgin sulfnric add, unless It Is
  accumulated speculatively.
    Although the Agency agrees that the
  spent edd. after stripping, meets the
  description of 40 CFR 281.4(a)(7), the
  Agency notes that the commenter's
  •pent •ulfuric acid, which meets the
  K131 listing description a* generated, is
  not used to produce virgin sulfuric acid
  until after treatment to remove methyl
  bromide. The Agency believes that such
  redamation is treatment of a hazardous
  waste (/.«., the spent sulfuric add as
  generated).
   The specific exemption for spent
  sulfuric add was meant to apply only to
  spent sulfuric acid that is used as a
  feedstock ingredient in the production of
  virgin sulfuric add. by introduction into
  the original sulfuric add production
  process. (A discussion of the types of
  sulfuric acid redamation processes
  intended for the exemption may be
  found in paragraph 8, column 1. of SO FR
 642.) In this case, the spent sulfuric add
 Is not exempt as generated since it is not
 suitable for feedstock In sulfuric acid
 production, i.e.. it must be stripped of
 methyl bromide prior to being suitable
 for introduction into the sulfuric acid
 production process. Thus, any time the
 spent sulfuric add stream is generated.
 it is a hazardous waste until stripped to
 produce feedstock for virgin sulfuric
 add production.
  Also, the Agency clarifies that waste
 K131, as defined in the proposal
 includes both the reactor wastewater
 stream and the add dryer stream, either
 as separate westes or combined. In
 order to darify this point (/.e, that
 waste K131 Includes the sulfuric add
 stream), however, we have modified
 EPA Hazardous Waste No. K131 to read.
 "Wastewater from the reactor and spent
 sulfuric add from the add dryer from
 the production of methyl bromide."
  b. Concentrations of dimethyl sulfate
 and methyl hydrogen sulfate. In
 addition, the commenter states that mis
 waste stream does not contain
 significant amounts of dimethyl sulfate,
 the hazardous constituent of mis waste:
 it does, however, contain methyl
 hydrogen sulfate. which me commenter
 states is non-toxic, and to destroyed m
 the reclamation furnace.
  The Agency does not believe that the
 commenter has supplied any evidence to
 sustantiate the contention that the
 sulfuric add stream prior to stripping
 contains dimethyl sulfate at
 concentrations that would not be
 significant In terms of potential hazards
 to human health and the environment. If
the commenter wishes to provide further
evidence to demonstrate that their
waste should be exduded from
 regulation, they should submit a
 delisting petition pursuant to 40 CFR
 280.20 and 260.22.
   .Regarding the commenter's point
 about methyl hydrogen sulfate, the
 Agency agrees that there Is Insufficient
 evidence at this time to indicate that It ii
 toxic. Therefore. It was not included as
 a constituent of concern for this waste.
 A* we stated in the proposed rule.
 however, the waste does contain
 considerable amounts of methyl
 hydrogen sulfate (up to 25%). Since
 methyl  hydrogen sulfate is an acid
 similar  to sulfuric  acid, this waste is
 expected to exhibit the corrosivity
 characteristic specified in 40 CFR 281.22.
 3. Spent Alumina Adsorbent
   The commenter stated that their spent
 alumina is steam-stripped to remove
 methyl bromide before the adsorbent Is
 removed from the  purification column.
 The spent alumina was analyzed after
 stripping and before landfilllng, and no
 methyl bromide was detected (at a
 detection limit of 5 ppm). The  •
 commenter dted as evidence the same
 Inter-office memorandum as was dted
 in their comment on wastewater from
 the reactor.
  The Agency has reviewed the
 evidence submitted by the comments
 and has concluded that the spent
 alumina contains significant amounts of
 methyl bromide before steam-stripping.
 Insuffident data was provided to
 determine whether this procedure
 suffidently cleans the alumina so that
 the waste leaving the column would
 contain  insignificant concentrations of
 hazardous constituents so as to allow an
 exclusion of the stripped (derived from)
 waste from the regulation, to particular.
 the Agency has inadequate Information
 on the commenter's test methods, how
 the samples were collected, or the QA/
 QC used. If the commenter wishes to
 provide  further evidence to demonstrate
 that their waste should be exduded
 from regulation, they should submit a
 delisting petition pursuant to 40 CFR
 28O20 and 280.22. (See "Petitions to
 Delist Hazardous Wastes: A Guidance
 Manual- NTO *PB-«5-194488,
 available from: NTTS. S28S Port Royal
Road. Springfield, VA 22161 (request by
 telephone at (703) 487-4850) for a
detailed discussion of me type of
information and data mat should be
included to the petition.) Because the
stripped absorbents are landfilled, there
 Is no question that the absorbents
before such treatment (stripping) are
solid wastes.
C Mismanagement
 The commenter believes that the
listing background document is
                                                                          misleading, and that It implies that they
                                                                          mismanaged their methyl bromide
                                                                          wastes, resulting in air pollution
                                                                          inddents around Its plant In Magnolia.
                                                                          Arkansas/The commenter stated that it
                                                                          did n«H begin producing methyl bromide
                                                                          at the Magnolia. Arkansas plant until
                                                                          December. 1983.
                                                                            EPA had no intention of implying that
                                                                          mismanagement of methyl bromide
                                                                          wastes by the commenter resulted in air
                                                                          pollution incidents. It was stated that
                                                                          methyl bromide was found in trace
                                                                          quantities around several plants, one of
                                                                          which was the commenter's plant in
                                                                          Magnolia. Arkansas. In fact, the listing
                                                                          background document specifically states
                                                                          that the data cannot be directly
                                                                          correlated with Industrial practices.
                                                                          Moreover, the Agency has concluded
                                                                          that the source of the methyl bromide
                                                                          could not be determined. To further
                                                                          clarify this point however, we have
                                                                          moved this discussion from the
                                                                          mismanagement section to the
                                                                          environmental fate and transport
                                                                          section of the listing background
                                                                          document to show the persistence of
                                                                          methyl bromide.
                                                                            m. Relation to Other Regulations
                                                                          A. Proposed Toxicity Characteristic

                                                                            As one of the mandates of HSWA. the
                                                                          Agency proposed to expand the toxidty
                                                                          characteristic (TC) by including
                                                                          additional chemicals. Once
                                                                          promulgated, the TC might capture
                                                                          wastes generated by the methyl bromide
                                                                          industry that are not covered by wastes
                                                                          K131 and K132. Such wastes could
                                                                          indude wastewaters and wasterwater
                                                                          treatment sludges.

                                                                          B. land Disposal Restrictions

                                                                            HSWA mandated the land disposal
                                                                          restrictions for waste listed prior to the
                                                                          enactment of HSWA under a specific
                                                                          schedule (see 3004(gX4)(c)). If the
                                                                          Agency failed to prohibit the wastes
                                                                          within the period specified, the wastes
                                                                          were restricted from land disposal
                                                                          HSWA also requires the Agency to
                                                                          make a land disposal prohibition
                                                                          determination for any hazardous waste
                                                                          that is newly Identified or listed in 40
                                                                          CFR part 281 after November 8,1984
                                                                          within six months of the data of
                                                                          identification or listing (RCRC section
                                                                          3004{g)(4). 42 U.S.C. 8924(g)(4)).
                                                                          However, the statue does not provide
                                                                          for an automatics prohibition of the land
                                                                          disposal of such wastes if EPA fails to
                                                                          meet this deadline. The Agency is
                                                                          evaluating treatment standards for
                                                                          newly listed wastes K131 and K132 and
                                                                          will propose such standard in the future.

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             Federal Register / Vol. 54. No. 193  / Friday.  October 6. 1989 / Rules and  Regulations      41403
 IV. Tnt Methods for New Appendix VU
 Ca
   Appendix d of 40 CFR part 281 is a
 list of test method! that are approved
 for use in demonstrating that the
 constituent* of concern in listed wastes
 are not present at concentrations of
 concern. The approved methods for
 methy bromide are 8010.8240, and 8260.
   The purposed listing (50 PR 16432}
 suggested use of Method 8250 for the
 analysis of dimethyl sulfate in
 Hazardous Waste No. K131. Because
 most commercial laboratories now
 prefer to use capillary column
 chromatography to improve the
 chromatographic resolution, we are also
 adding Method 8270 to the list of those
 suitable for analyzing dimethyl sulfate.
 The difference between these two
 methods is the use of a capillary column
 gas chromatography technique instead
 of a packed column technique.
   Persons wishing to submit delisting
 petitions must use these methods to
 demonstrate the concentration of methyl
 bromide and/or dimethyl sulfate in their
 wastes. * (See 40 CFR 280.22(d)(l).) As
 part of their petitions, petitioners shall
 submit quality control data
 demonstrating that the methods they
 have used yield acceptable recoveries
 (/.A. >80X recovery at concentrations
 above 1 ug/g) on spiked aliquots of their
 waste.
   The above methods are in "Test
 Methods for Evaluating Solid Waste:
 Physical/Chemical Methods." SW-646,
 3rd Ed* available from: Superintendent
 of Documents. Government Printing
 Office. Washington. DC 20402. (202) 783-
 3238. Document Number 055-002-81001-
 2.

 V. CERCLA Designation and
 Adjustment
  All hazardous wastes regulated under
• RCRA hazardous waste number an
hazardous substances under section
101(14)(C) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980.
as amended (CERCLA). Under section
103(a) of CERCLA. notification must be
nude to the Federal fovernment of a
release of any CERCLA hazardous
substance In an amount equal to or
greater than the reportaMe quantity
(RQ) assigned to that substance.*
  • PMttoum m*i «• OUMT IM! •wlkedt to
•Mljm far OMttqrl brooidt cr dlMttqrl wild* II
•aWMf OUMT thlflfiV ttwy OMMmtHtt DM
•quhmhwy of nwM MttMdi by MbnMUnf dwir
•MMy control md Mnmae* taTonuttoB »\oi*
wHh iMr Mtlyrii d«U. (Swt 40 CPU Han.)
  •Set 40 CF« pwOOX far OM MM of CEftCLA
kMaidoM MitMlMCM wd thtJr RQi. M aim
AnfOtt 14. USB. M PR S341S Md M t* 3J428.
 Pursuant to section 102(b) of CERCLA.
 all hazardous wastes newly listed under
 RCRA will have a statutorily imposed
 RQ of one pound unless and until
 adjusted by regulation.
  If. the person in charge of a vessel or
 facility from which a RCRA hazardous
 waste containing CERCLA hazardous
 substances is released knows the
 percentage composition of the waste.
 then the "mixture rule" (40 CFR 302.6(b))
 may be applied. Under the mixture rule,
 releases of mixtures and solutions are
 subject to CERCLA reporting
 requirements only where a component
 hazardous substance of the mixture or
 solution is released in a quantity equal
 to or greater than its RQ (40 CFR
 302.6(b)). If the concentrations of all of
 the hazardous constituents present in
 the mixture are not known, reporting is
 required if the total quantity released
 equals or exceeds the lowest RQ of any
 of the hazardous constituents.
  Adjustments from the statutory RQs
 established under section 102 are based
 upon an adjustment methodology
 described in  the final rule adjusting the
 RQs of 340 hazardous substances. (See
 54 FR 33428 (August 14.1989).) The
 adjusted RQs for newly listed waates
 are based upon the RQs of die
 "hazardous constituents" identified
 under RCRA with respect to the new
 hazardous waste. Thus, if a newly listed
 hazardous waste has only one
 constituent of concern, the waste will
 have the same RQ as that of the
 constituent If the waste has more  than
 one constituent of concern, the lowest
 RQ assigned to any one of the
 constituents present in the waste stream
 is the RQ assigned to the waste.
  Under section 102 of CERCLA, all
 hazardous wastes newly designated
 under RCRA will have a statutorfly-
 Imposed RQ of one pound unless and
until adjusted by regulation under
 CERCLA. In order to coordinate the
RCRA and CERCLA rulemaking with
respect to new waste listings, the
Agency proposed regulatory
amendments under CERCLA authority
 in connection with listing to: (1)
Designate wastes K131 and K132 as
hazardous substances under section 102
of CERCLA: and (2) adjust the RQs of
waste K131 to one pound (1 Ib.) and
waste K132 to one thousand pounds
(1,000 Ibs.). based on the application of
 the RQ adjustment methodology under
section 102(a).
 • the RQs for each waste and for each
 of the hazardous constituents are
 identified in the table below. One of the
 constituents of concern, dimethyl
 sulfate. has an RQ that has now
 undergone adjustment since (he April
 25,1985 proposed listing of methyl
 bromide production wastes, and was
 finalized in the August 14.1989 final
 rulemaking (54 FR 33426). The final RQ
/of waste K131 has thus been changed
 based on the outcome of this rulemaking
 from one pound to 100 pounds.
   The adjustment of the RQs of wastes
 K131 and K132 from the statutory one-
 pound level is based on the current RQs
 of the constituents in these listings.
 Because the constituent in waste K131
 with the lowest RQ is dimethyl sulfate,
 with an RQ of 100 pounds, the RQ of
 waste K131 is 100 pounds. Because the
 constituent in waste K132 with the
 lowest RQ is methyl bromide, with an
 RQ of 1.000 pounds, the RQ of waste
 K132 is 1,000 pounds. These RQs will
 become effective on the effective date of
 today's  action, when the wastes
 simultaneously become hazardous
 substances under CERCLA.
 Wa*M No. K131.
                                100t)«.
                                100 ibs.
                               1.000 KM.
                               1.000 tw.
                               \jooot*.
   Finally, although each listed
 hazardous waste automatically becomes
 a hazardous substance under CERCLA
 section 101(14). the Agency also has
 authority to independently designate
 hazardous substances under section 102.
 In order to eliminate confusion over
 whether a released substance In a
 particular form is subject to CERCLA
 authority, the Agency designates under
 section 102 all hazardous substances
 designated under the other statutes
 listed in section 101(14). Accordingly.
 die Agency in today e rule also Is
 designating waates K131 and K132 as
 "hazardous substances" under CERCLA
 section 102.

 VL State Authority

 A. Applicability of Rule* in Authorized
 State*

   Under section 3008 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
 inspection and enforcement authority
 under sections 3007.3008,3013. and 7003
 of RCRA. although authorized States
 IWVQ prinMty •tiforcwocnt
 mpoiuibllity.

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41406
Federal Register / Vol. 84. No. 193 / Friday. October 6. 19BO / Rule* and Regulations
  Prior to the Hazardous and Solid
 Waste Amendments of 1984 (HSWA). 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
 facilities 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 nonauthorized States. EPA is
 directed to implement .those
 requirements and prohibitions in
 authorized States, including the issuance
 of permits, until the State is granted
 authorization to do so. While States
 must still adopt HSWA-related
 provisions as State law to retain final
 authorization, the HSWA applies In
 authorized States in the interim.
  Today's rule is promulgated pursuant
 to section 3001(e)(2) of RCRA. a
 provision added by the HSWA.
 rherefore. it has been added to Table 1
 in 40 CFR 271.1(j). which identifies the
 Federal program requirements that are
 promulgated pursuant to the HSWA.
 and that take effect In all States.
 regardless of their authorization status.
 States may apply for either Interim or
 final authorization for the HSWA
 provisions Identified In Table 1. as
 discussed In the following section of mis
 preamble. Because EPA promulgated
rules regarding the timing for HSWA
listings after this rule was proposed, the
existing regulatory time frames
anpercede the discussions in the
preamble to the proposed rule,
B. Effect on State Authorization*
  As noted above, EPA wiB Implement
 today's rule In authorized States until
they modify their programs to adopt
 these rules, and the modification  to
approved by EPA. Because the rule Is
promulgated pursuant to the HSWA. a
State submitting a program modification
may apply to receive either Interim or
final authorization under section
3008(g)(2) or 3008(b). respectively, on the
 basis of regulations that are
 substantially equivalent or equivalent to
EPA's. The procedures and schedule for
 State program modifications under
 section 3008(b) are described In 40 CFR
                                      271.21. The same procedures should be
                                      followed for section 3006(g)(2).
                                        Section 271-21(e)(2) requires that
                                      States that have final authorization must
                                      modify their programs to reflect Federal
                                      program changes and must subsequently
                                      submit the modification to EPA for
                                      approval. State program modifications
                                      to conform to today's rule must be made
                                      by July 1.1991. if only regulatory
                                      changes are necessary, or by July 1.
                                      1992. if statutory changes are necessary.
                                      See 40 CFR 271.21(e)(2)(iv) and
                                      271.21(e)(2)(v). These deadlines can be
                                      extended in exceptional cases. See 40
                                      CFR271.21(e){3).
                                        States with authorized RCRA
                                      programs  already may have regulations
                                      similar to those in today's rule. These
                                      State regulations have not been
                                      assessed against the Federal regulations
                                      being promulgated today to determine
                                      whether they meet the tests for
                                      authorization. Thus, a State is not
                                      authorized to implement these
                                      regulations in lieu of EPA until the State
                                      program modification Is approved. Of
                                      course. States with existing regulations
                                      may continue to administer and enforce
                                      their regulations as a matter of State
                                      law. In implementing the Federal
                                      program. EPA will work with States
                                      under cooperative agreements to
                                      minimize duplication of efforts. In many
                                      cases. EPA will be able to defer to the
                                      States in their efforts to Implement their
                                      programs, rather than take separate
                                      actions under Federal authority.
                                        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 standards
                                      in their applications. However, the State
                                      must modify its program by the
                                      deadlines set forth in 40 CFR 271.21(e).
                                      States that submit official applications
                                      for final authorization 12 months after
                                      the effective data of these standards
                                      must Include standards in their
                                      application. Section 271.3 sets forth the
                                      requirements a State must meet when
                                      submitting its final authorization
                                      application.
                                      V1L Compliance Dates

                                      A. Notification
                                        Under the Solid Waste Disposal
                                      Amendments of 1980. (Pub. L 88-452)
                                      EPA was given the option of waiving the
                                      notification requirement under section
                                      3010 of RCRA following revision of the
                                      section 3001 regulations, at the
                                      discretion of the Administrator.
                                        The Agency has decided not to
                                      require parsons who generate, transport.
                                      treat store, or dispose of these
                                      hazardous wastes to notify the Agency
                                                                within 90 days of promulgation that they
                                                                are managing these wastes. The Agency
                                                                views the notification requirement to be
                                                                unnecessary in this case since we
                                                                believe that-most, if not all persons who
                                                                manage'these wastes have already
                                                                notified EPA and received ah EPA
                                                                Identification number. In the event that
                                                                any person who generates, transports,
                                                                treats, stores, or disposes of these
                                                                wastes has not previously notified and
                                                                received an identification number, that
                                                                person must get an Identification
                                                                number pursuant to 40 CFR 262.12
                                                                before he can generate, transport treat
                                                                store, or dispose of these wastes.

                                                                B. Interim Statui
                                                                  Because HSWA requirements are
                                                                applicable In authorized States at the
                                                                same time as hi unauthorized States.
                                                                EPA will regulate K131 and K132 until
                                                                States an authorized to regulate these
                                                                wastes. Tims, once this regulation
                                                                becomes effective, EPA wiO apply
                                                                Federal regulations to these wastes and
                                                                to their management In both authorized
                                                                and unauthorized States. Facilities that
                                                                treat store, or dispose of K131 and K132
                                                                but that have not received a permit
                                                                pursuant to section 3005 of RCRA and
                                                                are not operating pursuant to interim
                                                                status, might be eligible for interim
                                                                status under HSWA (see section
                                                                3005(e)(l)(A)(il) of RCRA. as amended).
                                                                In order to operate pursuant to interim
                                                                status, the eligible facilities are required
                                                                to possess an EPA ID number pursuant
                                                                to 40 CFR 270.70(a), and will be required
                                                                to submit a part A permit application by
                                                                April 6.1990.
                                                                  Under section 300S(e)(3). by April 8.
                                                                1991. land disposal facilities qualifying
                                                                for interim status under section
                                                                300S(e)(l)(AHti) also are required to
                                                                submit a part B permit application and
                                                                certify that the facility is in compliance
                                                                with all applicable ground water
                                                                monitoring and financial responsibility
                                                                requirements. If the facility fails to do
                                                                so. interim status will terminate on that
                                                                date.
                                                                  All existing hazardous waste
                                                                management facilities (as defined in 40
                                                                CFR 270J) that treat store, or dispose of
                                                                K131 and K132 and mat are currently
                                                                operating pursuant to interim status
                                                                under section 3005(e) of RCRA. will be
                                                                required to file with EPA an amended
                                                                part A permit application by April 8,
                                                                1990.
                                                                  Under currant regulations, a
                                                                hazardous waste management facility
                                                                that has received a permit pursuant to
                                                                section 3005 is not able to treat store, or
                                                                dispose of K131 or K132 until • permit
                                                                modification allowing such activity Is
                                                                approved la accordance with 1270.42.

-------
             Federal Register /  Vol.  54. No. 193 / Friday. October 6.  1989 / Rules  and Regulations      41407
 Note that EPA has recently amended the
 permit modification requirements for
 newly listed or identified wastes. See 53
 FR 37912 et seq. (September 28.1988V)
 VUL Regulatory Impact Analysis
   Under Executive Order 12201. EPA
 must determine whether a regulation is
 "major" and. therefore, subject to the
 requirements of a Regulatory Impact
 Analysis. In the proposed listing. EPA
 addressed this issue by citing the results
 of an economic analysis; the total
 additional incurred cost for managing
 those wastes as hazardous by the
 industry was estimated to be
 approximately $23.000. The Agency
 received no comments on this figure.
 Since that time, the Agency has re-
 evaluated the  total additional costs that
 would be incurred for managing  these
 wastes as hazardous by the industry aa
 approximately $43,500.
   Since EPA does not expect that the
 amendments promulgated here will have
 an annual effect on the economy of $100
 million or more, will result in a
 measurable increase in costs or prices,
 or have an advene impact on the ability
 of U.S.-based enterprises to compete in
 either domestic or foreign markets, these
 amendments are not considered  to
 constitute a major action. As such, a
 Regulatory Impact Analysis is not
 required.

 IX. 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 (/.»., small businesses, small
 organizations,  and small governmental
 jurisdictions). No regulatory flexibility
 analysis ia required, however, if the
 head of the agency certifies that the rule
 will not have a significant impact on •  •
 substantial number of small entities.
  The hazardous wastes listed hen an
 not generated by small entities (aa
 defined by the Regulatory Flexibility
 Act), and the Agency received no
 comments that small entities will
 dispose of them In significant quantities.
 Accordingly. I  hereby certify that thia
 regulation will not have • significant
economic impact on a  substantial
number of small entities. Thia
regulation, therefore, does not require a
regulatory flexibility analysis.

X. Paperwork Reduction Act
  Thia rule does not contain any
 information collection requirements
subject to OMB review under the
Paperwork Reduction Act of I960.44
U.S.C.3501e/*«7.

List of Subjects

40 CFR Part 261

  Hazardous waste, Recycling.

4O CFR Port 271
  Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste, Indian
Innds. Intergovernmental relations,
Penalties, Reporting and recordkeeping .
requirements, Water pollution control.
Water supply.

40 CFR Part 302

  Air pollution control. Chemicals,
Hazardous materials. Hazardous
materials transportation. Hazardous
substances. Intergovernmental relations,
Natural resources, Nuclear materials.
Pesticides and pests. Radioactive
materials, Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal Water pollution
control
  Dated: September 29.1989.
William K. ReUly.
AJministrator.
  For the reasons set out in the
preamble, title 40 of the Code of Federal
Regulations is amended as follows:

PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE

  1. The authority citation for part 261
continues to read as follows:
  Authority: 42 U.S.C. 8905.8912(e). 6921.
8022, and 8838.

  r In 1281.32. add the following waste
streams to the subgroup "Pesticides'':
IM1J2
waatea from apecHle
 Muwy
and EPA
  No.
K191-
                                IC.T)
          duCTon oi flMviyt DfOfMOoi
KI32	;8oem    abeoibert     and (I)

          •on wio production of inoviyl
                     Appendix VH to Part 261 (Amended]
                       3. Add the following entries in
                     numerical order to Appendix VII of part
                     201:  .
Muttyend
   EPA
                                „
                                 Huardou*
                                            tHucnU for wNch
                           No.
K131
K132
                                OMMhyl wHaM, MttM bronM*.
                                Mrthyl brand*.
                     Appendix m to Part 281 (Amended]
                       4. Add the following compounds and
                     analysis methods in alphabetical order
                     to Table 1 of Appendix III of part 261:
                          Compound
                      Method number*
                     kMr
                            •290.8270
                        •010, MHO. aaeo
                     PART 271-REOUIREMENTS FOR
                     AUTHORIZATION OF STATE
                     HAZARDOUS WASTE PROGRAMS

                       5. The authority citation for part 271
                     continue* to read as follows:
                       Authority: 42 U.S.C. 8906.8B12(«). 8928. and
                     8937.
                     1271.1  [Amended]

                       6. Section 271.1(j) Is amended by
                     adding the following entry to Table 1 in
                     chronological order by date of
                     publication:
                       (IT  *  *
                     TABLE  1.—REGULATIONS  IMPLEMENTING
                       THE  HAZARDOUS  AND  SOLID WASTE
                       AMENDMENTS OF 1984
                                       Promul-
                                                  TNeef
                                           n»Qtmr  EHtctti
                                            niter.     deM
                                                                     EHectt*
October  IMtag Wastes
  8,       tarn tie
  ISM.    Produeaonof
                                                   Aprie.
                                            F«dee-    1000.
                                            at
                                                              benl.
                      PART 302-OES4GNATKW,
                      REPORT ABLE QUANTITIES, AND
                      NOTIFICATION

                        7. The authority citation for part 302
                      continues to read as follows:
                        Authority: Section 102 of the
                      Comprehensive Environmental Retpoiue.

-------
41408
Federal Register / Vol. 54, No. 193 / Friday.  October 6,  1989 / Rules and Regulations
Compensation, and Liability Act of 1980,42
U.S.C. 9602; Sections 311 and 501(a) of the
Federal Water Pollution Control Act. 33
U.S.C 1321 and 1361.
                           9302.4  [Amended]
                             8. Table 302.4 of 40 CFR 302.4 is
                           amended by adding the following entries
                           in numerical order
Hazardous substance
Kiai 	 	 	
Wastewater from the reactor and spent sulfunc acid from the add dryer in the
production of methyl bromide.
Kia?,, 	 __ 	 ______
Spent absorbent and wastewater solids from the production o) methyl bro-
mide.
CASRN



Regulatory
synonyms



Statutory
RQ
100
1000
Code
4
4
Waste
number
K131
K132
Final RQ
Cate-
9«y
X
X
Pounds (kg)
100 (45.4)
1000 (454)
[FR Doc. 89-23584 Filed 10-5-89; 8:45 am]
BILUNO COOC *MO-«(M«

-------
                                       RCRA REVISION CHECKLIST 69

                                         Reportable Quantity  Adjustment
                                               54 FR 50968-50979          .   '
                                             .  December 11,  1989
                                                (HSWA Cluster II)

    Note:   On January 8, 1991, an amendment  to the preamble of the  December  11,  1989 rule was
    published in the Federal Register  (56 FR 643).   This amendment elaborates upon thei Agency's
    current position regarding the weight-of-evidence classification of tetrachloroethylene
    (perchloroethylene).  It does not affect the listing of Waste No. F025 nor the identification of
    tetrachloroethylene (perchloroethylene) as a  hazardous constituent of F025,  both of which are
    addressed by this checklist.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
KOTV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
                   PART 261  -  IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
                               SUBPART D - LISTS OF HAZARDOUS WASTES
    HAZARDOUS WASTES  FROM NONSPECIFIC SOURCES
revise listing
for F024
261.31


Industry and EPA
ha/ardous waste No Hazardous waste Haja'd code
                  Process wastes, including but not limited to. distillation residues, heavy ends. tars, and reactor dean-out wastes, from
                   me production of certain chlonr-ated aliphatic hydrocarbons by Ire* radical catalyzed processes These chlonnated
                   aliphatic hydrocarbons are those having carbon chain lengths ranging from one to and including five, with varying
                   amounts and positions of chlonne substitution  (This listing does not include wastewaters. wastewater treatment
                   siudgos. spent catalysts, and wastes listed in } 261 31 or } 261 32)
                                         (T)
add F025 listing
261.31




 EPA hiuvdouc wutt
       No.
i oontttuem* for wheh taled
R525               ClUoronwihan*: Ochkxomethane; ThcNoromethane; Carbon tetrachloride; Chtoroethylene; 1.1-Ochtoroetfiane; 1.2-Dicf.toroothane; trans-
                    1.2-OicNoroethylene; 1.1-OieMorMthytww:  1.1.1-TrtcMorMttwM: l.ti-TnchJofoethane; TichJoroetnytenr. 1.1.1.2-Tetjachkxotma/w.
                    1.1.£2-Tenacriloroetnanr. TttracNoroetnyWne. PenUcMoroktriane; HeucMoroetnwi*: AVyl daonde O-CNoroprotcne): Dtc.KtxowQ-
                    P4no; Dlcntoroprapen*; 2-CNof>1.3-butadione; H«x*chloro-1>but*dMne, HmocMoroeyclopenUdMn*: B«nzene. CrJofo6e.-u»n«. Ocr-
                    taratanxcnt: 1,2,4-Thd*xcb»nitnc: ToVacMorobwutnt. PvnUdilorolMnzMw: H««acf>torotjefuene. TokMO*; NapMrUlcnc.
                                       December 11, 1989 - Page 1 of 2

-------
               RCRA REVISION CHECKLIST 69:  Identification and Listing of Hazardous
                          Waste CERCLA Hazardous Substance Designation;
                                Reportable Quantity Adjustment (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS X
STATE CITATION
jSTAre ANALOQ is:
EQUIV-
ALENT
MORE
'STRINGENT
BROADER
IN SCOPE
                     APPENDIX VII - BASIS FOR LISTING HAZARDOUS WASTE
add F025 entry
Appendix VII


ha?ffiw!aPNo. HaM«toua«a«a Hratcod.
F02S
Condanaad IgM and*, apart Mtars and Mar aids, and apart daatecanl WMIM Irom ffw producMn of oortam cNomiled (T)
 •kphakc hydrocarbon*, by fca« radKal cauhnad proo«*M«. ThoM eMonnaMd akphatic ritrdrocaitona arc Vtoaa having
 carbon chain tongth* tangmg tarn ona W and nductng frv«, mnn varyng amounn and powtioni ol  etoonn*
                           APPENDIX VIII  - HAZARDOUS CONSTITUENTS
add compound

Cofnfnon nwfw
AMyt chlonde..

Aooendix VIII

Chanvcal abstracu nama
1-ftopana S-chloro . « ^



CHamtcai abstractf No.
107-1S-4








Haiardixj* wuia No


                                  December 11, 1989 - Page 2 of 2

-------
 54 FR 50968-50979



Revision Checklist 69

-------
 Monday
 December 11, 1989
Part VI



Environmental

Protection  Agency

40 CFR Parts 261, 271, and 302
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste CERCLA Hazardous Substance
Designation; Reportable Quantity
Adjustment; Final Rule

-------
 50908   Federal Register / Vol. 54. No. 236  /  Monday. December 11. 1969 / Rulet and Regulation!
 ENVIRONMENTAL PROTECTION
 AGENCY

 •0 CFR Parts Ml. 271, and 302

  iWH-FRL-4830-t; EPA/OSW-FR-M-01t|

 Hazardous Watt* Management
 System: Identification and Listing el
 Hazardous Wast* CERCLA Hazardous
 Substance Designation; Reportabto
 Quantity Adjustment

 AQSNCY: Environmental Protection
 Agency.
 Acnoft Final rule.	

 SUMMARY: The Environmental Protection
 Agency (EPA) today Is amending Its
 regulations under the Resource
 Conservation and Recovery Act (RCRA)
 by listing as hazardous one generic
 category of waste generated during the
 manufacture of chlorinated aliphatic
 hydrocarbons by free radical catalyzed
 processes having carbon chain lengths
 ranging from one to five (EPA
 Hazardous Waste No. P025). EPA Is also
 responding to comments on another
 generic category of waste (that was
 promulgated as an interim final rule on
 February 10,1984) generated by the
 same process (EPA Hazardous Waste
 No. F024); the Agency Is also finalizing
 this listing without substantive change.
 -Uhough the listing description has been
   irified. In addition, the Agency is
   ilizing the addition of two toxicants
   Appendix VIII of part 281. The effect
 of this regulation is that these wastes
 will be or will continue to be subject to
 regulation, respectively, as hazardous
 under 40 CFR parts 281-288.288.270,
 271. and 124. This action, however, does
 not apply to wastes generated during the
 production of chlorinated aliphatic
 hydrocarbons that were previously
 listed as hazardous on May 18.1980.
  In addition, the Agency Is also making
 final amendments to CERCLA
regulations in 40 CFR part 302 that are
related to today's final hazardous waste
listing. In particular, EPA is making final
the designation as hazardous substances
 onder CERCLA all of the wastes made
final in today's rule and the final
importable quantities that would be
applicable to those wastes.
DATCK Effective Date: The listing of
EPA Hazardous Waste No. FD2S
becomes effective on June 11.1990; the
amended listing for EPA Hazardous
Waste No. F024 becomes effective June
11.1990.
AODMMCK The RCRA docket Is
located at the following address, and is
  -<;n from • to 4, Monday through
   lay. excluding Federal holidays: EPA
RCRA Docket (Room 2427) (OS-305). 401
M Street. SW, Washington. DC 20400.
  The public must make an appointment
by calling (202) 475-0327 to review
docket materiel*. Refer to "Docket
number F-89-CCAF-FFFFF" when
making appointment* to review any
background documentation for this
rulemaklng. The public may copy a
maximum of 100 pages of material from
any one regulatory docket at no cost:
additional copies cost $0.15 per page.
Copies of the non-CBI version of the
listing background document. Health
and Environmental Effects Profiles
(IIEEPs), and not readily available
references are available for viewing and
copying only In the OSW docket. Copies
of materials relevant to the CERCLA
portions of this rulemaking are
contained in Room 2427. U.S. EPA. 401
M St.. SWM Washington. DC 20460. The
docket is available for inspection from
9:00 a.m. to 4:00 p.m. Monday through
Friday. As provided  In 40 CFR part 2, a
reasonable fee may be charged for
copying services.
row ruflTHtu INFOHMATION CONTACT:
The RCRA/Superfund Hotline, at (BOO)
424-9348 or at (202) 382-3000. For
technical information, contact Mr. John
Austin. Listing Section. Office of Solid
Waste (OS-333), at (202) 382-4789. For
technical Information on the CERCLA
final rule, contact Ms. Ivette Vega.
Response Standards and Criteria
Branch. Emergency Response Division
(OS-210). Both are available at U.S.
Environmental Protection Agency. 401M
St.. SW., Washington. DC 20480.
SUmjUCMTARY NtFOftMATIOM:

OuttUM
I. Legal Authority
IL Background
HI Summary Of Tha Final Regulation
IV. Response to Comments
  A. Clarification of the Scope of the Listing
  E Applicability of Rules to Wastes That
   Are Recycled
  C Praposal to Ust CondeiMable Light End*
  O. Evaluation of me Hazardous Properties
   of the Wastes
V. Rdattoa to Other Regulations
  A. PtopoMd Toxldty Characteristic
  a Land Disposal Restriction*
VL Test Methods for Compounds Added to
   AppendlcM VU and VIII
VIL Compound* Added to Appendix VIII
VUL CKRCLA Designation and ReportaMe
   QMntUtaa
DC. Slate Authority
  A. Applicability of Rules ta Authorized
   Slates
  a Effect on State Authorisation*
X. Compliance Date*
  A. Notification
  a Permitting
XL Regulatory Impact Analyst*
XII. Regulatory Flexibility Ad
XI1L Paperwork Reduction Act
1. Legal Authority

  These regulations are being
promulgated under the authority of
sections 2002(a) and 3001 (b) and (e)(2)
of the Solid Waste Disposal Act. as
•mended 42 U.S.C. 8B12(a) and M21(b|
and |e)(2) |common)y/referred to as
RCRAI. and section 102(a) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980.42 U.S.C. 9802(a).

IL Background

  Pursuant to section 3001 of subtitle C
of the Resource Conserve lion and
Recovery Act (RCRA). this notice
finalizes the listing of two generic
categories of wastes generated during
the manufacture of chlorinated aliphatic
hydrocarbons as hazardous wastes. The
following discussion provides a brief
overview of regulatory actions affecting
the waste* being finalized today.
  On August 22.1979 (44 FR 49402). the
Agency proposed, among other things, to
list as hazardous, by generic description.
a number of wastes generated from the
production  of chlorinated aliphatic
hydrocarbons. On May 19.1980, EPA
promulgated an interim final rule which
listed as hazardous a number of wastes
from the production of specific
chemicals within the general class of
chlorinated aliphatic hydrocarbons:
however, the generic listing was not
promulgated at that time (see 45 FR
33084).
  Then, on  February 10.19M (see 49 FR
5308-5315). the Agency, in two separate
actions, proposed the listing of one
generic category of waste and made an
Interim final listing of a second generic
category of waste generated during the
manufacture of chlorinated aliphatic
hydrocarbons ' by  free radical
catalyzed processes, which have carbon
chain lengths ranging from one to and
Including five ("Cl-CS").* The category
  • TMoriiMtad •llptiattc hydrocarbon*" |«l*a
k»ow« •* -eMortioMd MftutUe»~] nltn to • cU«*
                            F of HM
eompwHto f«MRNMlM) e
•tarn hydrasm md corboB. -AttptwHc" otttsnilM
(nil ttw dmnted bond bitwM« atwa *IOHM to
•Inch. ***»>. «f
                eo»*tart
ban*. (Crete cUphoUc hyd
         I ^CBIOfWaalWO^
tetMtdM*.)*
MjaBM ^ SBMMM tfUfffaBPBBSftl BM*atl
Ooaei fJT PBOTv OlllWfWsn EK*VI

• Tk* Asmer a**
                          MMMDftiM
          to tfw •lUptxHc hydrocarbon"
           illy PvpteMM with cUoftaW i
                         MIafi M CI-CS
chtofeMMd *Uph*nc hydrocarbon far Me remom.
nnt OS-CIS cMorfautod (UplMHe hydrocarbom
«• MI prodoeod la risntneMM fMMHy la tho US.
•n
lm*OTtMltjr. tfct UgtMT BMbraUr
ditortMltd smlDii
lypta.tr •• not

-------
           Federal  Register  / Vol.  54.  No. 236 / Monday. December 11. 1989 / Rules and Regulations    50969
 of waste* that became, effective as
 interim final regulations, and thus has
 been in effect as EPA I lazardou* Waste
 No. F024 since August 10.1984. included
 distillation residues, heavy ends. tars.
 and nnclor clean-out wastes (49 FR
 5308-5312). Today's notice provides the
 Agency's response to a number of
 comments that were received on the
 Interim final rule. Only minor changes to
 the F024 listing are being made in
 response to these comments.
   The proposed  listing included light
 ends, spent filter and filler aids, and
 draiccant wastes (49 FR 5313-5315).
 With the exception of light ends, today's
 notice finalizes the proposed listing of
 these residuals as EPA Hazardous
 Waste No. F025. The category of light
 ends has been narrowed in scope in this
 final rule to include only those light ends
 that have been condensed. These
 listings also do not include wastes from
 those processes that generate
 chlorinated aliphatic waste that EPA
 listed specifically in 1900—namely EPA
 Hazardous Waste Nos. K016, K018,
 K019. K020, K028. K029. K030. K095. and
 K096.
   The basis for both of these actions
 was a  determination  by the Agency that
 the proposed and interim final
 wastestreams contained a wide range of
 potentially carcinogenic, mutagenic.
 teratogenic, or otherwise chronically or
 acutely toxic chlorinated and non-
 chlorinated organic compounds, which
 are listed below:

 Table t—Toxicantt of Concern
 Chloromethane
 Dlchloromethane
 Trichlorontethane
 Carbon tetrachloride
 Chloroethylenn
 1.1-Dichloroe thane
 1.2-Dichloroethane
 trana-1.2-Dichloroi!lliyIene
l.1-Dich)oroethylcne
1.1.1-Trichloroethane
1.1.2-Trichloroe thane
Trichioroethylene
1.1.1.2-Tetrachloroethane
1.1A2-Tetrachloroe thane
Tetrachloroelhylone
Pentachloroc thane
Hexachloroelhane
3-Chloiopropene
Epichlorohydrin
CHchloropropane
Dichloropropene
2-Chlore-lJ-butadiene
Hexachloro-1.3-butadiene
Hexachlorocyclopentadiene
Benzene
Chlorobenzene
Dichlorobenzenes
1.2,4-Trinhlorobftnsene
Tetrachlorobnnzene
 Pentaehloronnnzene
 Hexachlorobenzene
 Toluene
 Naphthalene
   One or more of these toxicants are
 typically present In each waul* at
 significant concentrations, although
 each waste dons not contain all of the
 individual toxic constituents of concern.
   The Agency originally inferred the
 presnnce of these toxicants from
 knowledge of free radical reaction
 chemistry and from manufacturing
 process conditions. In conjunction with
 this theoretical predictive methodology,
 the Agency obtained representative
 samples and confirmed the presence of
 Ihcsf contaminants through chemical
 analysis. These hazardous constituents
 are mobile and persistent, and can reach
 environmental receptors in harmful
 concentrations If these wastes are
 mismanaged. (See the preambles to the
 Interim final and proposed rules at 49 FR
 5308 and 5313 for a more detailed
 explanation of onr basis for listing these
 wastes as hazardous.)
  On November 8, IBM, the Hazardous
 and Solid Waste Amendments of 1984
 (USWA) wen enacted These
 amendments had far-reaching
 ramifications for EPA'a hazardous waste
 regulatory program. Section 3001(e)(2).
 which was one of the mnny provisions
 added by HSWA. directed EPA to make
 a decision on whether or not to list
 under subsection (b)(l) several wastes,
 including chlorinated aliphstics. aa
 hazardous. By finalizing these two
 chlorinated aliphalics waste listings, the
 Agency Is fulfilling Its mandate under
 section 3001(e)(2) of RCRA.»
  HSWA prohibits the land disposal of
hazardous wastra. It also requires the
 Agency to set levels or methods of
 treatment that substantially diminish the
 toxlcity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the wast*
so that threats to human health and tha
environment are minimized. Wastes that
meet the treatment standards an not
prohibited and may be land disposed. A
 tnatment standard is based on the
performance of the best demonstrated
available technologies (BOAT) to tnat
 the wasta. For a waste identified or
bated after H3WA was enacted, tha
 Agency has fix months to determine
 specific tnatment standards which tha
waste must achieve prior to land
disposal. BOAT standards for wasta
  " Thftmgnont the fwmlnorf of Ihlj not lev. wl
ffVfaWII'OaM IO IIM flfUl nS1IO|| Of IntMa) I^VV
chtoriiMtod •llph.ltc. »nl«i mrm MM MM| IMfa*
•I •••(• fOM. wbldl WM prwmilMMd •• M bttcrtal
IhMl nrit. iad dM HIM! ttttliif of UM propoMd w*M
FOC9.
F024 were promulgated on June 23.1989.
In the Land Disposal Restrictions for the
Third Third of Scheduled Wastes
Proposed Rule, the Agency is proposing
BOAT standards for waste F023.
III. Summary, of the Final Regulation
  This regulation finalizes the listing as
hazardous the following wastes
generated from the production of
chlorinated aliphatic hydrocarbons by
frre radical catalyzed processes, having
a carbon content ranging from one to
and including five, with varying
amounts and positions of chlorine
substitution:
  • F024—Process wastes, including but
not limited to. distillation residues,
heavy ends, tan, and nactor clean-out
wastes, from tha production of certain
chlorinated aliphatic hydrocarbons by
free radical catalyzed processes. These
chlorinated aliphatic hydrocarbons an
those having carbon chain lengths
nnging  from ona to and Including five,
with varying amounts of positions of
chlorine substitution. (This listing does
not include wastewaten, wastewater
tnatment sludges, spent catalysts, and
wastes listed In | 281.31 or 1261.32.)
  • F025—Condensed light ends, spent
fillers and filter aids, and spent
deslccant wastes from tha production of
certain chlorinated aliphatic
hydrocarbons, by free ndlcal catalyzed
processes. These chlorinated aliphatic
hydrocarbons an those having carbon
chain lengths nnging from one to and
Including five, with varying amounts
and positions of chlorine substitution.
  Tha major commercial products
produced by tha free radical catalyzed
chemical manufacturing processes of
C1-C5 chlorinated aliphatic
hydrocarbons (from which the listed
residual wastes an generated) include
but an not limited to the following
products?
Table Z—Major Commercial Product*
Carbon tetrachloride
1-Chlorobutane (n-Butyl chloride)
Chloroethane (Ethyl chloride)
Chloroform (Trichloromethane)
2-Chloro-l^-butadiem (Qiloroprene)
Chloromethane (Methyl chloride)
2-Chlnro-2-raethylpropane ((-Butyl
  chloride)
3-Chloro-2-methylpropene (Methallyt
  chloride)
3-Chloropropene (Ally! chloride)
Dichlorobutadlene
Dichlorobutenea
1,4-Dichlorobutyne
1.2-Dichloroethane (Ethylene dichloride)
Dtchloromethane (Methylena dichloride)
l.t-Dlchloroprapana
1,3-Dlchloropropeno

-------
 ',0970    Federal Register / Vol. 54. No. 23« / Monday. December H. 1969 / Rules and Regulations
 I lexachlorocyclopenladiene
 Tetrachloroclhylem (Perehloroethylene)
   1.1-Trichloroelhane
   .2-Trichloroelhane
   chloroethylene (1.1.2-       •
   . richloroethene)
 l.2.3-Trichloropropane
 1.2.3-Trichloropropene
 Vinyl chloride (Chloroethene)
 Vinylidene chloride (1.1-Oiclilorocthene)
   EPA bus evaluated the wastes
 generated from the production of these
 product! against the criteria for listing
 hazardous wastes (40CFR 26l.l1(a)(3)).
 and has determined that they typically
 contain high concentrations of the
 constituents of concern listed in Table 1.
 that the toxicants are mobile and
 persistent in the environment that these
 wastes have been mismanaged in the
 past, and that many of the toxicants in
 the wastes are regulated by other EPA
 regulations, as well as by  regulations of
 other government agencies. The Agency.
 therefore, believes thai these wastes are
 capable of posing a substantial present
 or potential threat to human health or
 the environment when improperly
 treated, stored, transported, disposed of,
 or otherwise managed, and thus are
 hazardous wastes.
  Additional Information on the hazards
 or these wastes and the toxicant
 constituents of these wastes may be
   •nd In the listing background
   .ument and the Health and
   ironmental Effects Profiles, available
   Jescribed in the "ADDRESSES"
 section.
  With respect to the proposed listing of
 light ends, the Agency also Included a
 discussion of Its authority under RCRA
 to regulate uncondensed and
 unccntainerized gases, which are liquids
 at standard temperature and pressure.
 The notice did not propose that the light
 ends must be condensed: however,
 under the proposal the light ends would
 have been subject to the applicable
 regulations, even when they remain in
 the gaseous atate. Based on further
 analysis, the Agency now believes that
 our authority under RCRA Is limited to
 the regulation of only containerized or
 condensed gases.
  The Agency also added two
 componunds, 2-chloro-l ,3-butadlene
(chloroprene) and 3-chloropropene (allyl
chloride), to Appendix VIII of Part 261,
the list of hazardous constituents
identified by the Agency as exhibiting
toxic, carcinogenic, mulagenic. or
teratngenic effects on humnns or other
life forms. (See 49 FR 5311. February 10,
1904.)

rv. Response to Comments
   iPA received comments on all aspects
   he interim final and proposed
regulations. The comments were
submitted by generators of these wastes.
an association which represents such
generators, and public Interest groups.
The Agency has evaluated these
comments carefully, and has modified
the regulation, as well as the supporting
documentation, as appropriate. This
notice finalizes both the Interim final
and proposed regulations of February
10.1984. This section presents some of
the major comments as well as  EPA's
response to many of the comments
received on both of these actions. In
addition to material In this preamble.
the Agency's response to these
comments is also set forth In the revised
listing background document available
in the public docket for this rulemaking
at EPA Headquarters—see
"ADDRESSES" section.
A. Clarification of Scope of the  Listing
  A number of commenters objected to
the Agency listing these wastes as a
generic class. In particular, the following
comments were made:
  1. Before challenging the Agency's
substantive decisions, several
commenters argued that the Agency
lacks the legal authority to list wastes
genetically, citing the House Committee
Report which states "*  * * the
Administrator shall promulgate
regulations identifying and specifically
listing those hazardous wastes  subject
to this title." (See H.R. Rep. No. 94-1491.
94th Cong.. 2nd Sess. at 56.) One
commenler. however, supported such an
approach, arguing that a waste-by-waste
listing would be very Inefficient and
probably incomplete.
  EPA has no doubt as to the legality of
its authority to list wastes generically,
and has already responded to such
challenges (see preamble to part 261.45
FR 33114. May 19. I960).
  2. A number of commenters expressed
concern that a generic listing would
create an inequitable situation for those
persons who generate a waste that
would be Included in the generic class.
but which may not be hazardous.
  hi reviewing the available data, the
Agency found in all Instances that
wastes that would be Included in  the
listing description contained significant
levels of one or more of the hazardous
constituents of concern that would
cause the Agency to consider the  waste
hazardous. In fact, the Agency carefully
reviewed the various generic production
processes to ensure that no waste was
mistakenly included In the listing. As
discussed in the listing background
document, the concentrations of the
toxicants of concern were many orders
of magnitude above the levels
associated with human health concerns.
In addition, the solubilities of the
hazardous constituents of concern were
also many orders of magnitude above
the aame levels. Thus, only a small
fraction of the hazardous constituents
present in the wastes need migrate and
reach environmental receptors to pose a
substantial hazard to human health and
the environment.
  The Agency used these data in
combination with a methodology based
on free radical chemical mechanisms to
predict that significant concentrations of
toxicants would be present In all of the
wastes from these generic processes. In
no instance did the Agency receive any
comment refuting, or even questioning.
the validity of this predictive
methodology: nor was any analytical
data provided by the commenlers that
would refute the listing. We. therefore.
disagree with the commenters. It should
be noted, however, that If a person does
generate or manage a waste that
contains Insignificant levels of the
various hazardous constituents (i.e.. that
person believes that the waste is
nonhazardous), then the person may
petition the Agency to delist this waste
on a case-by-case basis. See 40 CFR
260.20 and 260.22.
  3. Several commenters argued that an
efficient dellsting procedure was not
available for the exclusion of wastes In
the generic class which do not have the
hazardous properties for which they
were listed. They commented further
that even If an efficient procedure were
available, no guidance waa available as
to the criteria, such as concentration
levels of hazardous constituents, used to
determine If a waste was no longer
hazardous.
  As discussed above, the Agency does
not believe that the wastes listed In
today's rule would, without treatment
qualify as nonhazardous.
Notwithstanding, the Agency
acknowledges that there were some
historical problems with the delistlng
program. Since 1984, these problems
have mostly been resolved as the staff
has gained experience with the program
and guidance has been developed (see
Petitions to Delist Hazardous Wastes: A
Guidance Manual, April 1985. EPA/530-
SW-85-003) to assist the regulated
community in preparing deUsting
petitions.
  4. Several commenters objected to
including m the listing description for
EPA Hazardous Waste No. F024 the
phrase "including but not limited to."
The commenters argued that the phrase
is ambiguous, overly broad, and in
conflict with the language from H.R.
Rep. No. 94-1491. which states that the
Agency should promulgate regulations

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                                                 •

           Federal Register / Vol. 84. No.  236 / Monday. December 11.  1989 / Rules  and Regulations    50971
 Identifying and specifically lifting
 wastes. In addition, the commenters
 claimed that no hatard criteria can be
 used In evaluating the waste If the
 waste is not even Identified.
   The Agency disagrees with the
 commenters. The listing is sufficiently
 specific. The listing description clearly
 states that all wastes from the subject
 process (except those that are
 specifically excluded) are covered by
 the listing: the process Is identified
 unambiguously in both the Federal
 Register notice and in the listing
 background document (/'.».. the support
 documentation provides • detailed
 description that explains the  sources In
 the process  from which the wastes are
 generated). Likewise, we have carefully
 explained our basis for defining these
 wastes as hazardous—namely, that
 these wastes are hazardous after
 considering the concentration of the
 toxicants in the waste, their propensity
 to migrate and persist, as well as other
 relevant criteria In f 26l.1l(a)(3). As
 discussed In the February 10.1964 rule.
 many of these toxicants also  are
 bioBccumulatlve. increasing the risk of
 exposure to higher levels of toxicants.
 The Agency has evaluated a large
 number of waste streams that contacted
 the raw materials, intermediates, or
 product streams. These wastes contain
 significant amounts of the hazardous
 constituents of concern. No commenters
 provided any data refuting this
 information. Also, at it discussed more
 fully in the background document, any
 wastes generated from new or modified
 processes not discussed specifically In
 the background document are expected
 to generate wastes similar to F024. If
 wastes generated by new or modified
 procesHcs are significantly different.
 then a generator may always submit a
 dellsting petition to the delisting
 program. The Agency, therefore.
 perceives no general difficulties with
 Including the phrnse "including but not
 limited to" in the listing description.
  5. One commenter believed that listing
 all spent filters, filter aids, and
 desiccants unduly penalized
manufacturers by requiring RCRA
permits when they decontaminate these
materials and return them to the
process. Another commenter argued that
wastes (/.«. spent desiccants, filters, or
filter aids) which do not come into
contact with or derive from the product
line (but which am derived from the
production process) should not be
Included In the generic listings.
  With regard to the first point, although
 the Agency believes It important to
encourage the recycling, of hazardous
waste, the Agency la guided by the
principle in RCRA that the paramount
and overriding statutory objective of
RCRA is protection of human health and
the environment. The statutory policy of
encouraging recycling is secondary and
must give way if It Is in conflict with the
principal objective. See SO FR 610.
January 4.1985. In addition, where
Congress wished to further the recycling
objective It said so explicitly. See RCRA
section 3014 (recycled oil). Indeed, there
have been a number of Instances of
environmental damage (i.e.,
groundwaler contamination) caused by
improper storage of hazardous wastes
awaiting reclamation. See Appendix A
at 50 FR 650 for a summary of damage
incidents renulting from the recycling of
hazardous wastes. It should be noted.
however, that once the filters.
desiccants. etc.. are reclaimed and
returned to the process as usable
products, these  filters, desiccants. etc..
are no longer considered wastes, and so
are not subject to the RCRA subtitle C
regulations. See 40 CFR 261.3(c)(2): see
also 50 FR 634. January 4.1965. Permits
are required for storage prior to
reclamation. See 40 CFR 281.6(c).
  As-to the other commenter's point, the
Agency agrees that If a waste generated
from the generic process does not come
into contact with or derive from the
product line (or any raw materials or
wastes), the waste should not be
included in the listing description for
waste FD25. However, the Agency is not
aware nor was any information
provided by the commenter of how a
waste, which is derived from the
production procens, would not come Into
contact with the raw materials,
Intermediates, or wastes.
  6. A number of commenters agreed
with the Agency that wnstewaters
derived from these processes should not
be Included in the listing. (One
commenter, however, argued that both
wastewaters and the wastewater
treatment sludges should be listed: see
next comment for details.) The
commenters believe that the wastewater
exclusion would not function as such.
however, since any de minimit losses
that leak or spill from the process would
be washed Into the wastewater
treatment system and would cause the
wastewaters to be hazardous via the
mixture rule. They, therefore,
recommend that the listing be modified
to specifically exclude those de minima
losses that become mixed with the
waslewaters.
  The Agency agrees with the
commenters that wastewaters and
wastewater treatment sludges should
not be listed (see 49 FR 8306, February
10.1964, for our basis on this
determination); however. If waste FD24
and F02S is leaked or spilled and then
washed into the wastewaler treatment
system, the Agency believes that the
wastewater should be hazardous by the
mixture rule. The/Agency explained in a
previous rulemaklng its reasons for
excluding and including within the
hazardous waste system mixtures of
certain listed wastes and solid wastes
such as wastewaters (see 46 FR 565R2.
November 17.1981). In particular, in that
rule, the Agency exempted from  the
mixture rule certain wastewater
mixtures where the listed hazardous
wastes will be present In such low
concentrations that they do not pose •
substantial hazard to human health or
the environment and often  will be
treated In the plant's chemical.
biological, or physical wastewater
treatment system.
  The Agency believes that only the
spent solvents (wastes F001-FD05) listed
In | 281.31. the commercial chemiea}.
products listed in 1281.33,  and
wastewaters resulting from laboratory
operations (where the wastewater
coming from the laboratory Is a small
percentage of flow Into the wastewater
treatment system) should be covered by
the wastewater mixture axemptloa
because they an seldom principal
wastestreams and often an discharged
In small quantities Into wastewaters as
a practical way of managing them. On
the other hand, the Agency believes that
the other hazardous wastes listed In
I 281.31 (including the F024 and F025
wastes being listed in this rulemnking)
and those listed in 1261.32 typically an
generated in large volumes relative to
the non-hazardous wastewaters
generated at the same plant and. if
mixed with the wastewater. often
constitute a significant portion of the
wastewater mixture, thereby causing the
mixture to pose • substantial hazard to
human health or the environment4
  Moreover, as the Agency noted in
exempting mixtures of small quantities
of spent solvents and wastewatar from
the mixture rule. It Is not always
possible to collect and segregate spent
solvents. For example, small spills or
incidental losses from various
degreasing or maintenance operations
around the plant an often difficult to
prevent or control even when careful
  ••mrmlaflhtlM
FOMmdFD»M*ilK>I
Iknmw. ptocMt »«rtn
(•MfeMFoMmdneS)
•* mrUnti OT
MStHtoiHi )• UN lonMbHon gfeonmtfctal
(.hmilcil pimlum m MM c»»ti«d by Ike F001-HBS
•(Wai MlvMt H*lb«i {•*• SB m S331S. Diewnhwr si.
1SSSI. Thmfon. O» alMtag WMtowatar •!*«<»•
•MmptiMi vow not flppiy lo
                         Hitod MMIM.

-------
  50972   Federal Register / Vol. 54.  No. 238 / Monday. December 11. 19OT / Pulea and Regulations
  operating procedures are followed. Such
  •mall quantities of spent solvents
  sometimes drain or are washed into
  westewater sewer systems: in certain
  circumstances. It Is also reasonable to
  discharge these small quantities into the
  nearest sewer connected to the
  wastewater treatment system. 40 FR at
  565&1. In contrast. EPA believes that In a
  well-designed and managed
  manufacturing plant for chlorinated
  aliphatic hydrocarbons, it Is not
  unreasonably difficult to prevent small
 amounts of wastes from leaking or
 spilling into the wastewater system.
 Unlike the widespread prevalence of
 spent solvents throughout the plant.
 F024 and F025 wastes are principal
 waste streams and will be removed from
 discrete process units and confined and
 mnnoged as hazardous wastes when
 this rule is finalized. For all these
 reasons. EPA believes that It would be
 unwise and unnecessary to create an
 adJItlonal exemption to the mixture rule
 for mixtures of F024 and F025 wastes
 and wastewater.
   The regulated community miy
 petition for an exclusion of any
 hazardous waste mixture on a
 generator- or waste-specific facials
 (which would require representative
 r'ata from the industry). At this time, the
 Agency does not have sufficient
 information to make such a generic
 exclusion with the confidence that
  >ublic health and the environment
 would still be protected; therefore, we
 are not modifying the rules. Another
 xpproach that the Agency Is considering
 to uddress this situation is to establish
 da minimit regulatory levels for
 hazardous  constituents in listed
 hazardous  waste. Including hazardous
 waste mixtures and residues.
  7. One commenter stated that the
 Agency had sufficient data to list
 wastewater and wastewater treatment
 sludges at the time of the proposed and
 interim final rules. Such evidence was
 said to include ten damage cases from
 wastewater treatment Ingoons described
 in the listing background document
  Although many incidents of
 contamination of ground water by
 chlorinated organica have been
 documented as a result of storing or
 treating wastewaters In nnlined surface
 impoundments, the Agency baa been
 able to document only two incidents
 which could be tied definitively to the
manufacture of C1-C5 chlorinated
 aliphatic hydrocarbons. The incidents
 cited by the commenter provide
 evidence of the migratory potential of
 the hazardous constituents of concern In
 nqueous waste. However, tha Agency
 'ocs not have sufficient data at this time
 lo characterize was'ewaier streams.
 which may be highly variable in regard
 to constituent concentrations. If the
 Agency obtains more data, it will be
 able lo fully evalupte waslewatcrs and
 wastewaler treatment sludges from
 these processes to determine If lh«y
 should be listed. Notwithstanding the
 possibility of any sur-h future
 determination. EPA believes that
 today's action satisfies the requirement
 In RCRA section 3001|e)|2) lo  make a
 determination of whether or not lo list
 chlorinated aliphatic*. Any future
 listings would be pursuant lo EPA's
 general authority to list hazardous
 wastes under section 3001(b).
   8. One commenter believed  that the
 listing of light ends would be redundant.
 since most of the constituents  of these
 wastes are currently regulated under
 i 2fl1.33(f).
   The commenler is apparently
 confused. 1 lie listing of commercial
 chemical products under 1261.33(0 does
 not apply to process waste streams.
 Rather, these listings cover unused
 commercial chemical products, which
 become wastes when disposed or are
 Intended for disposal. Commercial
 chemical products  consist of the pure
 gride of the chemical, any technical
 grades of the chemical, and all
 formulations in  which the chemical is
 the sole active ingredient in a
 formulated product. Listing under
 I 261.31 covers wastes that are
 generated during certain generic
 production processes, such as  the
 manufacture of chlorinated aliphatic
 hydrocarbons. Thus, the listing of light
 ends In waste F02S would not be
 redundant with already listed wastes.
 B. Applicability of Rules to Wastes That
 an llecycled
  Ssveral commenters pointed wit that
 several of the wastes may be sold as
 raw materials and. therefore, an not
 wastes. By listing them, they believed
 that there would be an unwarranted
 burden imposed on the sale of these
 residuals, even If necessary permitting
 and delisting procedures were  complied
 with, thus encouraging customers to buy
 other feedstocks. Several other
 commenters requested that the Agency
 refrain from listing these wastes until It
 makes final its recycle/reuse rules.
  Tha Agency agrees with the
commenters that In many cases light
ends from the manufacture of C1-C5
chlorinated aliphatic hydrocarbons are
products and an sold as such. However.
 this Is not always the case. If. in fact.
light ends are sold as products, then tha
January 4,1985 definition of solid wast*
regulations deal with the question of
which materials being recycled (or held
 for recycling) are solid and hazardous
 wastes. Sea SO PR 814. Among other
 things, the rule states that materials
 used or reused as an ingredient in an
 industrial process to make new products
 (provided the materials are not being
 reclaimed), or used or reused as
 effective substitutes for commercial
 products (again without being
 reclaimed), are not solid wastes. (See 40
 CFR 2m.2(«J. SO FR 894. and also
 preamble discussion at 50 FR 837.) If
 these residues (regardless of whether
 they are listed) are recycled in Ihia
 manner, they are not considered solid
 wastes and therefore by definition are
 not hazardous wastes. See 40 CFR 2814.
 However, these materials may still be
 solid and hazardous wastes if: (1) They
 are used/reused In a manner
 constituting disposal or used to produce
 products that are applied to the land: (2)
 they are burned for energy recovery or
 used to produce a fuel: (3) they are
 reclaimed; or (4) they are accumulated
 speculatively. Sea 40 CFR 281.2(e).
 (Since the recycle/reuse rules have
 already been promulgated, the second
 comment is moot.)
 C Proposal to Lit! Condensable Light
 End*

  Several commenters objected strongly
 to the Agency's proposal to list light
 ends which are In the gaseous state but
 condensable by currently feasible
 technology to liquids at ambient
 temperature and pressure. The following
 arguments were offered.
  Seven) commenters stated that the
 Agency does not have authority under
 RCRA to regulate gaseous process
emissions, since these are not solid
wastes (/.A, they an not "contained
gaseous material") as stated in the
definition of solid waste. See RCRA
section 1004(27). One commenter.
however, supported the Agency by
saying the proposal to regulate
condensable light ends does not reflect
In any way upon previous Agency policy
applicable to contained gaseous
materials, since thesa condensable light
ends an not gaseous materials in tha
first place. Some commenters expressed
tha opinion that circumvention of
regulation under RCRA by heating
wastes to tha gaseous state could be
prevented by currant permitting
procedures.
  Other commenters claimed that the
fact that the Agency had previously
listed light ends which wan generated
in the gaseous state did not empower
the Agency to take similar action at a
later date. One commenter also stated
 that the reason tha phthallc anhydride
 listing of wastes K023 and KOB3 wan not

-------
          Federal  Register / Vol. 54.  No. 236 / Monday. December 11. 1MB / Rules and Regulations    50973
 questioned In 1980 was became. •! Ihel
 lime, It we* evtumed thel the lifting
 only applied to the light ends In the
 condensed state. One commenter further
 argued that the phlhalic anhydride light
 ends listing was not analogous, since the
 phthallc anhydride light ends contained
 malelc anhydride and phlhalic
 anhydride, which was emitted from the
 process as partlculates.
  In addition, commenters objected to
 regulation under RCRA of gaseous
 emissions for other reasons. Including
 that permitting would have a significant
 economic impact: that there currently
 are no standards for floret (and
 subsequently, permitting would be
 difficult): that regulation of fugitive
 emissions of gaseous liquids from valves
 and pipes might follow regulation of
 gaseous light ends under RCRA: that
 condensation of light ends to ambient
 temperature could cause equipment
 corrosion: and that the Agency had not
 adequately characterized these gaseous
 emissions.
  In its proposal, the Agency explained
 that It believed that the exclusion from
 RCRA of gaseous materials that are not
 contained applied only to "true gases"—
 namely, those which are not capable of
 being condensed  and which remain
 gaseous at standard temperature and
 pressure. Our concern was that a plant
 could evade regulation by designing •
 process to keep the process emissions In
 o gaseous state. See 40 FR 5314,
 February 10,1964. Such a result could
 create human health and environmental
 concerns. For example, in the Bhopal
 Incident • volatile liquid (methyl
 isocyanate) escaped confinement from •
 storage tank in a  situation analogous to
 the storage of condensed light ends.
  Upon reconsideration of this issue
(with the benefit of the comments
received on the proposed rulemaldng).
EPA now believes our authority to
identify or list a waate as hazardous
under RCRA Is limited to containerized
or condensed gases (/.«* section 1004(27)
of RCRA excludes all other gases Iron
 the definition of solid wastes and thus
cttnnot DC considwvd pf****wfitf
wastes).*
HClMfMtlOH M£MMDOfWf TOHMHW M HWCL BOB ^f
       M sir pollution control owtaM pwwMit to
nsoUMoM MdOT th* dm Air Act Hwjr art
             B VfJIICWOOJl) nWB VslfVOMe)
              .ePAcoadwMttuLfa
S«MraL ROM tUndimli do Ml «pp»y to fan
SM| to «o< • MlM
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                         M Vw MtaNtan
  EPA. therefore, has decided not to
regulate these uncondensed light ends.
In the case of chlorinated aliphatic
hydrocarbon manufacture, the Agency
knows that manufacturer! typically
employ condensation devices In
conjunction with distillation equipment.
since the condensable fraction of these
emissions is either a valuable product or
recyclable feedstock material. If the
light ends are condensed and reused to
make new products or effective
substitutes for commercial products.
they will not be considered solid or
hazardous wastes, as long as they have
not been reclaimed and they do not
meet the criteria specified in | 261.2(e).
See 50 FR 637. If every disposed (prior to
any such reuse), however, these
condensed light ends would be
considered • solid waste and subject to
today's listing. Consequently, our
decision should not present an
environmental concern.
  Although we agree with the
commenter that heating wastes to the
gaseous state Is subject to regulation
under RCRA as treatment of hazardous
waste, the Agency believes that It
cannot use Its current permitting
procedures to mandate the production
process design of a manufacturing
facility so that It generates a waste as a
liquid instead of (for example) Installing
some Internal heating mechanism that
generates the same liquid waste in the
gaseous state. RCRA Jurisdiction does
not provide this kind of control over
manufacturing processes. Of course.
thermal  threatment after a material
becomes a hazardous waste is fully
regulated under RCRA.
  The Agency also agrees with the
commenters mat citing the phthalic
anhydride light ends listing raises
substantial questions with respect to
establishing precedents. We have.
accordingly, deleted references to It In
the listing description and preamble.
D. Evaluation of the Hazardous
Properties of the Waste*
  Other comments expressed specific
concerns with the Agency's evaluation
of the hazardous properties of the
wastes,  either through Its lexicological
evaluations of individual hazardous
constituents. Its projection of
concentration levels of constituents in
the wastes, or its analysis of the ability
of the constituents to migrate from the
wastes.
  1. Two commenters stated that some
of the conclusions reached by the
Agency do not accurately reflect the
present state of knowledge of the
oncogenlc properties of the constituents
in these wastes. They commented that
the Agency did not attempt to clarify the
level of risk (of carcinogen*) or to
provide substantiation of its conclusions
that the Carcinogen Assessment Croup
(CAC) assessment documents on which
the Agency relied/are consistent with
"current levels of knowledge and
existing data": they also stated that the
Agency should have used weight of
evidence characterizations in Its
assessment of the potential hazards of
these compounds. In particular, the
commenters asserted that the Agency
should not have judged constituents to
be "potential human carcinogens" when
the evidence for carclnogenlcily for
several of these chemicals would fall
into "Croup 3: chemicals *  *  * which
* * * cannot be classified as to their
carcinogenlcity to humans."
  The agency's judgment on the
potential carcinogenic and toxic effects
resulting from continued low-level
exposure to the constituents of concern
are outlined In the Health and
Environmental Effects Profiles for each
constituent of concern. The major health
concerns are summarized in the listing
background document The commenter
gave no specific criticism that EPA's
facts do not "reflect the present state of
knowledge." (other than that noted
above) and did not provide any
additional data or other Information to
challenge the basis for EPA's decision to
list We are, therefore, unable to
respond to this criticism. (It should be
noted that the Agency has reviewed
more recent studies addressing these
constituents, and finds that this
Information corroborates the Agency's
original decision to list This Information
has been summarized and placed in the
docket.)
  With respect to the "weight-of-
evidence" argument the Agency
promulgated guidelines for carcinogenic
risk (see 51 FR 32656. September 24.
1966) which Incorporates an assessment
of the quality of experimental data for
the overall hazard assessment for
carcinogens. These guidelines specify
the following five classifications:
                    ofra(*uflid*nt
    evidence from epMemtologic stadias)
 tarap 8-frobabta human carcmoesa
  Croup ft—Uallad evidence of
  Group Bb—A combination of raffldent
    evidence to animals and Inadequate or
    ao evidence to humans
 Group C—Possible human cardnofen
    (limited evidence of csrdnogenidty In
    me absence of human data)
 Croup D—Not classifiable as to human
    cardiweenldtv (Inadequate human and
    animal evidence of cardnofmidly or no
    dsta available)

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  50971    Federal Register /  Vol. 54.  No. 238 / Monday. December 11. 1969  /  Rules and Regulations
  Croup E — Evidence of non-cnrdnoymlcily for
     humans (no evidence of carchiogcnicily
     in at lent two adequate animNl leali in
     dlfferenl specie* or In both adequate
     epidemlolpgic and aninml atudira).
   The Agency regard* agenfa classified
  in Group A or B as suitable for
 quantitative risk assessment. The
 nuitability of Croup C agents for
 quantitative risk assessment requires a
 case-by-case review because some
 Croup C agents do not have a data base
 of sufficient quality or quantity to
 perform a quantitative carcinogcnir.ity
 risk assessment. The weighl-of-evidence
 basis was used to eliminate Croup D
 and E constituents from further
 consideration as carcinogen*.
   Application of these guidelines shows
 that benzene and vinyl chloride are
 considered "carcinogenic to humans".
 the weight of evidence for
 carcinogenicity falling into class A. For
 the following hazardous constituents of
 concern, the weight of evidence for
 carcinognnicity is considered to fall into
 class B2. Thus, these compounds are
 considered to be probably carcinogenic
 I o humans:
 Cmbon tetrnr.hloriHe
 1.2 Dichiofoethane (Ethylene dichloride)
 IHchloromethana (Melhylene chloride)
 Fpichlorohydrin (l-Chloro-2. 3-epoxypropane)
 I lexachlorobensene
 itlpha-Hexachlorocyclohexane
 ;amma-Hexachluracycloliexane
 IXrachloroethene (Perchloroethylene)
 rrichloroethene (Trichloroethylene)
 rrichloromethana (Chloroform)

  The following constituents of concern
 are considered to be possible human
 carcinogens (class C):
 l.1-Uichloroethftne (Vinylideiie chloride)
Imla- Hexachlorocycloh'ixnne
dclta-liexachlorocyclohexanc
I lexachloroelhane
1.1.2.2-Tetrachloroethane
1.1.2-Trichloroethana
  The listing background document has
lieen modified to indicate the carcinogen
class for each constituent of concern.
  2. Several commenters argued that the
discussion in the listing background
document was not sufficiently specific
to determine the routes of exposure by
which the hazardous constituents exert
their toxic effects. They further argued
that one cannot conclude that health
effects from ingestion and inhalation are
the same.
  The Agency agrees that the
assessment of the risk to human health
resulting from improper disposal of
wastes ideally should take into account
the various routes of exposure. Since
most of the toxicants of concern in these
 vastes have relatively high vapor
 treasures, they are likely to be emitted
 to the air from most waste manngement
 practices. In addition, the solubilities
 and environmental persistence of these
 compounds are sufficiently high to cause
 contamination of ground and tut face
 water (see the-damage Incidents
 described in, the listing background
 document).
   Finally, since rinks based on exposure
 from ingestion fully support the listing of
 these wastes as hazardous, it would be
 redundant and therefore not necessary
 to consider the hazard posed by other
 routes of exposure, such as inhalation.
   3. Two commenters did not agree with
 the Agency's comparing concentrations
 of hazardous constituents in wastes as
 "orders of magnitude greater than"  the
 AWQC. One commenter gave the
 example of a tar waste that is rock hard
 when cool, and suggested-that-the -
 Agency use the aqueous solubility of
 hazardous constituents as a criteria for
 listing, and not simply a comparison of
 the total concentration of a constituent
 to a comparison of the AWQC
   The Agency recognizes the
 importance of matrix effects on the
 extent to which hazardous constituents
 ran be expected to lunch from a waste.
 Accordingly, the Agency has developed
 a leaching test (the Toxicity
 Characteristics Leaching Procedure, or
 TCLP), which can be used as an
 indicator of the leachabitity of certain
 constituents from wastos. As part of the
 proposed Toxicify Characteristics (see
 June 13.19M. 51 FR 21640). the leaching
 test would be used to identify wastes
 that clearly pose hazards due to their  .
 potential to leach specific hazardous
 constituents at levels that could harm
 human health through contamination of
ground water. While several of the
 hazardous constituents for which wasta
 F024 and F025 are being listed are
among those that are proposed to be
included in the Toxicity Characteristics.
many are not. Therefore, a mote
qualitative assessment of hazard was
used for this listing.*
  In this assessment, we first assume
that the potential for hazardous
constituents to migrate from an organic
waste Is generally correlated to the total
concentration of the constituents in  that
wastes (/.«.. the higher concentration of
the constituents in the waste, the higher
  • It ihiwM be noted that the hiuntaw watte
cheracleriallca contained In euhpart C of pert Ml
(••it.. the Toxidly Charectertatica) mn "feneric" hi
(hut they apply to all aolld waatra and do not raflad
consideration of nnlqm anpeett of certain
waitoalnanw. Thua. Ida eonelderaltan el Iheaa
•nlque aanacla (volume of wnale fenerated. ilamafa
tnrtitmli. etc) mny lead In the cnndunion thai a
wait* to kaiardona and thould be Hated hi aubpart
D of pert SSI. even If H dooa not exhibit any of the
haxardova waale characterldlca.
 the concentration of the constituents is
 likely to be in the leachate from the
 waste). Second, we also consider the
 solubility of the contaminants in the
 waste. As Indicated in the proposal and
 in the Interim final rule, the solubilities
 of the constituents pf concern are many
 orders of magnitude greater than the
 AWQC (a suggestion made by the
 commenter). Finally, we evaluate
 empirical evidence demonstrsling that
 significant environmental exposures
 have resulted from leaching of
 hazardous constituents from similar
 wastes. This has been seen in numerous
 damage incidents from wastes
 containing the chlorinated toxicants of
 concern. In addition, a physically similar
 coal tar used for lining and sealing tanks
 for drinking water (a cohesive tarry
 substance) was found to leach
 substantial concentrations of relatively
 water insoluble polynuclear aromatic
 hydrocarbons (PAHs). such as
 benzo(a|pyrene, into water.
  These facts demonstrate that the
 hazardous constituents at issue here are
 capable of migrating even from a fairly
 stable wasta matrix. We believe.
 therefore, that our assessment Is
 accurate with respect to the potential for
 hazardous constituents to leach from all
 of the wastes described by this listing.
  4. Several commenters questioned our
 conclusions regarding the toxlcities of
 specific hazardous constituents. The
 Agency has carefully reviewed the
 comments but still believes those
 toxicants are of concern. See the listing
 background document for specific
 responses to these comments.
  Since the public comments on the
 proposed and interim final regulation*
 have not refuted or seriously called into
 question the Agency'* initial basis for
 listing wastes generated during the
 manufacture of chlorinated aliphatic
 hydrocarbons by free radical catalyzed
 processes having carbon chain length*
 varying from one to and Including five.
 we are today finalizing the listing of
 F02S as well as FO24 In 40 CFR 261.31
 (only minor changes are being made to
 the listing of F024).

 V. Relation to Other Regulations

A. Pwpoted Toxicity Characterittic

  As one of the mandate* of HSWA, the
 Agency proposed to expand the Toxidty
Characteristic (TC) by including
 additional toxic organic chemicals.
 Under the June 13,1986 proposal, the
 hazardous wasta listings In subpart D of
 40 CFR part 261 would not be affected.
 All the listings would remain In effect
 Including those listing* that ware based
 on the presence of TC constituents. It Is

-------
          Federal Register / Vol. 54. No. 236 /  Monday. December 11. 1989 / Rules  and Regulations    50975
EPA's intention that the hazardous
waste listings would continue to
complement the TC. Once promulgated.
the TC might capture wastes generated
by the chlorinated aliphatic! industry
that are not covered by wastes F024 or
F02S. Such wastes could Include
wastewatera and wastewaler treatment
sludges.
B. Land Disposal Restrictions
  IISWA mandated land disposal
restrictions for wastes listed prior to the
enactment of IISWA under a specific
schedule (see SI FR 19300, May 28,
1988). If the Agency failed to prohibit the
wastes within the period specified, the
wastes were restricted from land
disposal. Waste F021 which was Interim
final effective August 10.1984. was
included in the second third to be
evaluated for land disposal restrictions.
The final rule promulgnting treatment
standards for the second thirds wastes
included treatment standards for waste
F024 (see 94 FR 28594. June 23.1989).
  Although the Agency  listed
Hazardous Waste No. F024 under an
interim final rule prior to the enactment
of HSWA. the Agency nonetheless took
comment on that action. Today's action
responds to comments received on that
interim final rulemaklng and finalizes
our determination under IISWA 3001 (e)
to list Hazardous Waste No. F024.
Today's action on F024. which does not
alter the listing or its substances, but
only clarifies  its description, does not
alter the Agency's June  23,1989
determination in regard to the land
disposal restriction.
  Furthermore. IISWA also requites the
Agency to make a land  disposal
prohibition determination for any
hazardous waste that Is newly identified
or listed in 40 CFR part  261 after
November 8,1984 within six months of
the date of identification or listing
(RCRA section 3004(g|(4), 42 U.S.C.
6924(g)(4)). In the Land Disposal
Restrictions for the Third Third of
Scheduled Wastes Proposed Rule, the
Agency is proposing a treatment
standard for Hazardous Waste No. FD2S.
VI. Teat Methods for Compounds Added
to Appendices VII and VfD
  Most of the substances designated in
this final rule as hazardous constituents
are currently  listed In table 1 of
appendix III of 40 CFR pnrt 281. which
designates the test methods that can be
used when characterizing wastes for the
purpose of delisting.
  On October 1.1984 (49 FR 38786). the
Agency proposed several changes to the
RCRA hazardous wastes regulations.
Including the addition of new methods
to SW-046. After evaluating the
comments, the Agency decided not to
promulgate the October 1,1984 proposal.
Instead, the Agency revised SW-846 to
incorporate many of the suggestions
made in the comments, which were
made available In the Third Edition of
SW-4M6 (40 FR 8072. March 18.1987). On
January 23.1989 (54 FR 3212). the
Agency proposed, among other things.
new and revised methods in the Third
Edition of SW-«4«. the first update
package to the Third Edition, and
expansion of table 1 of Appendix III of
40 CFR part 281. Once finalized, these
methods may be used to determine
whether a sample contains a given
Appendix VII or VIII toxic constituent.
However, until the Third  Edition of SW-
846 Is made final, the Second Edition as
amended by Updates  I and H. and the 47
methods that were finalized September
29.1989 (54 FR 40200), remain as the
approved methods for meeting
regulatory requirements under substitle
C of RCRA.
  These methods are  in "Test Methods
for Evaluating Solid Waste: Physical/
Chemical Methods." SW-846,3rd ed-
September. 1988, as amended: available
from Superintendent of Documents,
Government Printing Office.
Washington. DC 20402. (202)783-3238.
Document No.: 955-001-00000-1.

VII. Compounds Added to Appendix
VIII
  On February 10,1984 (49 FR 5311), the
Agency made interim final the addition
of two compounds. 2-chloro-1.3-
butadiene (chloroprene) and 3-
chloropropene (allyl chloride), to
Appendix VIII of part 201. the list of
hazardous constituents identified by the
Agency as exhibiting toxic.
carcinogenic, mutagenic. or teratogenic
effects on humans or  other life forms.
These are two of the hazardous
constituents for which wastes F024 and
F025 are listed. No comments were
received on this rule. Therefore, these
two compounds will remain listed on
Appendix VIIL However, In a notice of
technical corrections to I 261.33 and
Appendix VIII (S3 FR 13382. April 22.
1988). the Agency inadvertently deleted
allyl chloride from Appendix VIIL In
today's action. EPA is making a
technical correction to once again
Include allyl chloride In Appendix VIM.

VIIL CERCLA Designation and
Reportable Quantities
  All listed hazardous wastes, as well
as  any solid waste that meets one or
more of the characteristics of a
hazardous waste (MS defined In 40 CFR
261.21 through 261.24). are hazardous
substances as defined at section 101(14)
 of CERCLA. CERCLA hazardous
substances are listed in Table 302.4 at 40
CFR 302.4. along wllh their reportable
quantities (RQs). CERCLA section 103(n)
requires that persons In charge of
vessels of facilities from which a
hazardous subMance has been released
in a quantity that is equal to or greater
than its RQ immediately notify the
National Response Center of the release
(at (800) 424-8802 or In the Washington.
DC metropolitan area it (202) 426-2675).
In addition, section 304 of'the Superfund
Amendments and Reaulhorization Act
of 1988 (SARA) requires the owner or
operator of a facility to report the
release of • hazardous substance to the
appropriate Slate emergency response
commission (SERC) and to the local
emergency planning committee (LEPC)
when the amount released equals or
exceeds the RQ for the substance.
  According to the "mixture rule"
developed in connection with the  Clean*
Water Act section 311 regulations and
also used for notification under
CERCLA and SARA (50 FR 13463. April
4.1985), the release of mixtures must be
reported when the amount released
equals or exceeds the RQ for the waste.
unless the concentrations of the
constituents of the waste are known.
When the concentrations of the
individual constituents of a hazardous
waste are known, the release of the
hazardous waste would need to be
reported to the NRC and to the
appropriate LEPC and SERC when the
RQ of any of the hazardous constituents
is equaled or exceeded. RQs of different
hazardous substances are not additive
under the mixture rule (except for
radionuclides. see 54 FR 22536, May 24.
1989), so that spilling a mixture
containing half an RQ of one hazardous
substance and half an RQ of another
hazardous substance does not require a
report.
  On August 10.1964. the effective date
of the interim final rule,  waste stream
F024 became a CERCLA hazardous
substance with a statutorily imposed
one pound RQ. A one pound final
adjusted RQ for waste stream F024 was
promulgated on August 14.1989 (54 FR
 33428). As concerns F02S, when today's
 rulemaking becomes effective, waste
 stream F025 will automatically become
 a CERCLA hazardous substance by
 virtue of its listing under RCRA. Under
 section 102(b) of CERCLA. a hazardous
 substance has a statutorily imposed RQ
 of one pound unless or until adjusted by
 regulation. In order to coordinate the
 RCRA and CERCLA rulemakings with
 respect to new waste listings, the
 Agency today Is adding waste F025 to 40
 CFR 302.4. the codified  list of CERCLA

-------
 50978   Federal Register / Vol. M. No. 236 / Monday. December  11. 1989 / Rules and Regulation
 hazardous substances, and listing ill
 Blatulory RQ of one pound.

  \. Slate Authority
  I. Applicability of Rules in Autlxvieed
 otatct
  Under tection 30ne of RCR A. EPA
 may authorize qualified Slates lo
 administer and enforce the RCR A	
 program within Ihe Slate. (See 40 CFR
 part 271 for Ihe standards and
 requirements for authorization.)
 Following authorization. EPA retains
 enforcement authority under sections
 3006,3013. and 7003 of RCRA. although
 authorized States have primary
 enforcement responsibility.
  Prior to the Hazardous and Solid
 Waste Amendments of 1904 (MSWAJ, a
 State with final RCRA authorization
 administered Its authorised hazardous
 waste program in lieu of EPA. The
 Federal requirements no longer applied
 in the authorized Slate, and EPA oould
 not Issue permits for any facilities in the
 State that the Stale was authorized lo
 permit When new. more stringent
 Federal requirements were promulgated
 or enacted, the State was obliged to
 enact equivalent authority within
 specified lime frame*. New Federal
 requirements did not lake effect in an
 authorized State until the Stale adopted
 the requirements as State law.
  In contrast, under section 300B(g) of
 
-------
           Federal  Regiiler / Vol. 54.  No. 236 / Monday. December 11. 1969 / Rulei and Regulation!    80977
  Ih* facility hits lo do so. interim status
  will terminate cm Ihnl date.
   All exlillng hazardous waste
  management facilities (as defined In 40
  CFR 270.2) that treat, flora, or dispose of
  F024 and F02S and thul arc currently
  operating pursuant lo Interim Haltii
 under tecllon 9005(c) of RCRA. mm! file
 with EPA an amended part A permit
 application by |une 11.1090. in
 accordance with I 270.72(a).
   Under current regulation!, a
 hnrardoui waste manngemenl facility
 thai ha* received a permit pursuant lo
 section 3005 It not able to treat, •tore, or
 dispose of P024 or F025 when the rule
 become* effective on June 11.1990. until
 a permit modification allowing such
 activity hat occurred in accordance with
 12T0.42(g). Note Ihnt ETA hat recently
 amended the permit modification
 procedures for newly listed or identified
 wantei. For more detail! on the permit
 modification procedure!, pee 53 FR
 37912 ft MO. (September 28.1986).
 XI. Regulatory Impact Analyala
   Under Executive Order 12291. EPA
 muit determine whether a regulation U
 "major" and. therefore, subject to the
 requirement of a Regulatory Impact
 Analyili. The  tola! additional Incurred
 coat for dlipotal of the wallet added by
 thin rule. It lest than  f W.OOO. well wider
 the $100 million constituting a major
 regulation. Thlt Insignificant coil it
 partly dm to the fact that watte F024
 hat been regulated at hazardoui tinea
 1004 and therefore there thould be no
 additional coit to comply with Ihit rule.
 The coil for waate F025 result! from
 minimal compliance requirement! at
 these wattet are being handled at If
 they were hazardmta (primarily due to
 theJr containing tlmilar toxic
 constituents at F024) by moil of the
 generator*, who have Interim ttatut or
 part B permit!. These generator* will
 Incur minimal increased costs for permit
 modifications,  chemical analysis, and
 reoordkeepinf. Thlt cott I* much lew
 than the estimated cost of SIS million
 elated In the proposed rule. This coil
 wat bated on conservative atiumpllont
 Including lhat these wallet would be
 managed for the first lime ai hazardous.
  Since EPA does not expect lhal the
 amendment! promulgated here will have
 an annual effect on the economy of 8100
 million or more, result In a measurable
 Increase In cost or prices, or have an
 adverse Impact on  the ability of U.S.-
 baaed enterprises lo compete In either
 domestic or foreign markets, them
 amendments are not considered lo
 constitute a major action. At such, a
 Regulatory Impact Analyilt It not
 required.

 XII. Regulatory Flexibility Act
  Puriuanl lo the Regulatory Flexibility
 Act. 5 U.S.C. tecliont 001-412. whenever
 an agency It required to publish a
 general notice of rulemaklng for any
 proposed or final rule. It must prepare
 and make available for public comment
 a regulatory flexibility analytli lhal
 detcrlbei the Impact of the rule on small
 entitles (i.e.. tmall businesses, imall
 organizations, and amall governmental
 Jurisdictions). No regulatory flexibility
 analysis Is required, however. If the
 head of the agency certifies that Ihe rule
 will not have • ilgnlflcant economic
 Impact on • lubslantlal number of tmall
entltiet.
  The hazardous wastes listed here are
not generated by small entitle! (ai
 defined by Ihe Regulatory Flexibility
 Act), end the Agency received no
commend that smell entltiet will
dispose of them In ilgnlflcant quantities.
Accordingly. I hereby certify the! thli
regulation will not have a ilgnlflcant
economic Impact on a luuilantlal
number of email entitle!. Thlt
regulation, therefore, does not require •
regulatory flexibility analytls.

XIIL Paperwork Reduction Ad
  Thto rule doe* not contain any
Information collection requirement!
aubject lo OMB review under the
Paperwork Reduction Act of I860. 44
U.S.C.aS01rfa0a.
4OCfH Port 281
    /          ,
  Hazardous materials. Waste
treatment and diipotaL Recycling.

40 CFR Port 271

  Administrative practice and
procedure. Confidential business
Information, Hazardous materials
transportation. Hazardous waste. Indian
lands. Intergovernmental relation*.
Penallle*. Reporting end recordkeeplng
requirement*. Water pollution control
Water aupply.

40 CFR Part 303

  Air pollution control. Chemicals.
Hazardous materials. Hazardous
material! transportation. Hazardous
substances. Intergovernmental relation*.
Natural resources. Nuclear material*.
Pesticides end petit. Radioactive   * '
materials. Reporting and recordkeeplng
requirement*. Superfund. Watte
treatment and disposal Water pollution
control.
  Dated: November 29. 1MB.
WllBasft K. Rally.
AdmiitMntor.
  For the renioni if I out In the
preamble, title 40 of Ihe Code of Federal
Regulation* It amended as follows:

PART »1— IDENTIFICATION AND
LISTING Of HAZARDOUS WASTE

  1. The authority citation for part 281
continue* to read •• follow*:
  Authority: 42 U AC 8906, 8B12(a). 6021.
|MU1
  2. In 1281.31. revlie the lilting
description for EPA hazardou* waate
No. F024 to read •• follow*:
  haavaew
FOM
                                                           iVMOUML ••wWflf M^ M**t W
                                                        (tMs H»*j son nsl
                                                   fei|MfJt«i|NtJ>4.
  3. In 1261 Jl. add the following watte
stream:

-------
  SO879    Federal Reglater / Vol. 54. No. 238 / Monday. December 11. 1989 / Rules and Regulations
  XJ2S              OomtKiMd tgN «ndi. apinl »»r» «nd m* at*. «nd «*n Omron *•**» tnm aw yrodurton rt c«rt»n eKB»ti»t»l (T)
                     " "  "  " "
                                              on> to flntf andudataj ffwaX pWi wynQ
 Appendix VJHAm«neca«on» ProduMd «r FFN RMfcai C*Mr*M «* FH _               JIM 11. 1SOO
PART 302—DESIGNATION.               Aalaorlljr:Se«.10l(1K!«)«ndia2(b)of the  1*02.4 (Amended]
REPORTABLE OUANTmES, AND        CompnheMive Environmental Rctponsn,       . o^~{\m 302.4 u amendcd by addini

NOTIF1CATIOM                                                       '"     *• WMtt «™m ™*!° Tibte Xi4'
  S. The authority citation for part 302
continues to read as follows:

-------
          Federal  Register / Vol. 54.  No. 236 / Monday. December 11. 1969 / Rules and  Regulations    50979
TABLE 302.4.— LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITCS


F0» 	
tfto vponi owiccont WSMVOS wow vw proouctoft of

ph>tte tiydrocvbonc ••*• ttioM fnvfciy cvvon
cnvn MnytrM ivnQinQ irofti onv to wo inciuoHQ
WT*B, tMV) w^inQ wttountv) (wio poswons ov cniO'
rin« MtoHMkm.
CASRN






SMMory
RO
•1
Cod*-
* 4
S2C-
was
FMRO
CMIBU.I
X
Mi**
"1(04S4|
* IndtefllM vw Mfllulofy 9ourct n tfvflnM by 4 bvlnw.
• MtoMM Ml M WihJtory wureo tor dBUgnrttoi Ol Mt htnrdou* cubsttnc* undir CERCIA to CWA Mcton 311(bK^
• InteatM Ml tw tUrtiitory touroo tor d^jUgotton ol W« huwrtout tubtttneo undw CERCIA to CWA toetan 307(«J
f hw^f^laa M^ MM •ial.^naM «<^»ra tar rtaalnnaMnii irf •tea h«vAij4n.M ai«i«l«n^A iMniar r^COT*! A te r^ftA ••rMn« t •«
                                                                                  .
   • IndleMM Ml M MaMery Wt* tor Omantton ol ttm rwzcrtfoui Mbfttinc* undtr CERCtA • RCRA Mdton 3001.
   '* IndfcMM »M «w 1-pound HO M • CERCLA MMiMry RO.
   •• Tho Agoncy m«y KtM> •»• itttutary RO tor Ms tanrdaut wbrann In • Muro rutoiiMklng: unH Mn. M MMutory RO
|FR Doc. W-28483 Filed 12-S-89:8:45 »m]

-------
                            RCRA REVISION CHECKLIST 70

                Changes to Part 124 Not Accounted for by Present Checklists
                            48 FR 14146-14295, April 1, 1983   /
                           48 FR 30113-30115, June 30, 1983
                            53 FR 28118-28157, July 26, 1988
                         53 FR 37396-37414, September 26, 1988
                            54 FR 246-258, January 4,  1989
                                 (Non-HSWA Cluster VI)
Note: Part 124 was affected by the deconsolidation of EPA's Consolidated Permit Regulations (48
FR 14146, April 1, 1983).  In reprinting the Part 124 in the FR. a number of typographical errors
and inadvertent omissions of paragraphs were made.  On June 30, 1983 (48 FR 30113) and on
January 4, 1989 (54 FR 246), these errors were corrected so that most of Part 124 again reads
as it was originally printed in the July 1, 1982 CFR.  Of the changes made by the April 1, 1983
article, only those which were not negated by the June 30, 1983 or January 4, 1989 articles are
included in this checklist. Similarly, only those  changes made by the June 30, 1983 or January 4,
1989 notices which  are not merely corrections of errors in the April 1, 1983 article have been
included in this checklist.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION
oTAifc ANALOG is:
'BOO iv-
ALENT
MORE
STRINGENT
' BROADER
IN SCOPE
                   PART 124 - PROCEDURES FOR DECISION MAKING
                   SUBPART A - GENERAL PROGRAM REQUIREMENTS
APPLICATION FOR A PERMIT
1 change cross-
references regarding
RCRA Dermrts
124.3(a)
124.3(a)(1)
124.3(a)(2)
124.3(a)(3)
















MODIFICATION, REVOCATION AND REISSUANCE. OR TERMINATION OF PERMITS
1,2 change cross-
references regarding
RCRA
124.5(a)
124.5(0(1) & (3)
124.5(d)












DRAFT PERMITS
1 change cross-
references regarding
RCRA Dermrts
124.6(d)(1H3)




                              Various Dates - Page 1 of 2

-------
                       RCRA REVISION CHECKLIST 70:  Changes to Part 124
                           Not Accounted  for by Present Checklists (cont'd)
1
FEDERAL REQUIREMENT
change "§ 122.28" to
"Section 270.30"
FEDERAL RCRA CITATION

ANALOGOUS
STATE CITATION
6T ATE ANALOG IS:
EOUIV- / MORE I
ALENT STRINGENT I
BROADER
IN SCOPE
124.6(d)(4)m
PUBLIC NOTICE OF P
delete "and other
appropriate govern-
ment agencies"; add
"(Indian Tribes)" after
"States"; add paren-
thetical statement
regarding Indian Tribes
treated as States
redeslgnate old
124.10(c)(1)(viii)(A)-(C)
as 124.10(c)(1)(ix)
(AMC)
redeslgnate old
124.10(c)(1)(ix)
(A) and (B) as
124.10(c)(1)(x)(A) and
(B); delete "For RCRA
permits only"
ERMIT ACTIONS AND PUBLIC COMMENT PERIOD
1 24.1 0(c)(1 MR)
124.10(c)(1)(lx)
124.10(cU1)(x)










•

4,5
     PUBLIC HEARINGS
6 insert "," after
"whenever"
124.12(aH2)




     1
      48 FR 14146-14295, April 1, 1983.
     2 Checklist 54 made additional changes to 124.5(c)(1) and (3) at 53 FR 37410 (September 28,
      1988).  State which have adopted the provisions addressed by that checklist should have
      already made those changes.  States which have not adopted the provisions addressed by that
      checklist should refer to that checklist when revising this section of code.

     3 53 FR 37396-37414, September 26, 1988.

     4 53 FR 28118-28157, July 26, 1988.

     5 48 FR 30113-30115, June 30, 1983.

     6 54 FR 246-258, January 4, 1989.
                                    Various Dates - Page 2 of 2

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54 FR 14146, 14264-14295
    54 FR 30113-115
   54 FR 39611-39623
   54 FR 37396-37414
   54 FR 28118-28157
     54 FR 246-258

   Revision Checklist 70

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14146
Federal Register / Vol. 48, No. 64 / Friday, April 1.1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 122, 123,124,125,144,
145,146, 233, 260,261, 262, 263, 264.
265,270, and 271

[FRL 2293-5)

Environmental Permit Regulations:
RCRA Hazardous Waste; 5DV/A
Underground Injection Control; CWA
National Pollutant Discharge
Elimination System; CWA Section 404
Dredge or Fill Programs; and CAA
Prevention of Significant Deterioration

AGENCY: Environmental Protection
Agency.
ACTION: Final Rule.

SUMMARY: This rule reorganizes the
presentation of permit program
requirements governing the Hazardous
Waste Management program under the
Resource Conservation and Recovery
Act (RCRA), the Underground Injection
Control (UIC) program under the Safe
Drinking Water Act (SDWA). the
National Pollutant Discharge
Elimination System (NPDES) and the
Dredge or Fill (§ 404) programs under
the Clean Water Act (CWA). and the
Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
This rule makes no substantive changes
to any of the affected sections. The
Agency is simply physically
deconsolidating its Consolidated Permit
Regulations in response to the
President's Task Force on Regulatory
Relief which asked that the
Environmental Protection Agency
review the Consolidated Permit
Regulations. Our intent is to make the
regulations easier to understand and to
use.
   • Part 122 of the Consolidated Permit
Regulations is split into portions
applicable specifically to RCRA (new
Part 270). UIC (new Part 144). 404 (new
Part 233), and NPDES (mostly remaining
in Part 122).
   • Part 123 of the Consolidated Permit
Regulations is split into portions
applicable specifically to RCRA (new
Part 271). UIC (new Part 145), 404 (new
Part 233), and NPDES (remaining in Part
123).
   • Part 124 of the Consolidated Permit
Regulations remains applicable to all
permit programs (RCRA. State 404
programs, UIC, NPDES. PSD) and is
modified only as necessary to revise the
cross-references to former Parts 122 and
123.
DATES: Effective date: April 1,1983,
except for those portions of § § 122.2,
122.21, and 122.29 that are suspended.
                      . Comment date: To assist EPA in
                      correcting typographical errors,
                      incorrect cross-references and similar
                      technical errors, submit comments of a
                      technical and nonsubstantive nature on
                      the final regulations on or before May
                      31,1983.
                      ADDRESS: Address comments of a
                      technical and nonsubstantive nature to:
                      John Chamberlin, PM-220, U.S.
                      Environmental Protection Agency,
                      Washington, D.C. 20460.
                      FOR FURTHER INFORMATION CONTACT:
                      The following individuals at the U.S.
                      Environmental Protection Agency,
                      Washington. D.C. 20460:
                        • On RCRA issues—Deborah Wolpe,
                      Office of Solid Waste (WH-563): (202)
                      382-4754;
                        • On UIC issues—Thomas E. Belk;
                      Office of Drinking Water (WH-550);
                      (202) 426-3934;
                        • On NPDES issues—George Young,
                      Permits Division (EN-336); (202) 4CG-
                      4793;
                        • On 404 issues—Michael Privitera.
                      Office of Federal Activities (A-104);
                      (202)382-5053; •
                        • On issues relating to coordination
                      among all the revisions to the
                      Consolidated Permit Regulations for the
                      President's Task Force on Regulatory
                      Relief—John Chamberlin, Office of
                      Policy Analysis (PM-220); (202)382-2762.
                      SUPPLEMENTARY INFORMATION:

                      I. Background
                        On May 19,1980, EPA promulgated
                      the Consolidated Permit Regulations
                      (CPR) governing five separate permit
                      programs (40 CFR Parts 122-124, 45 FR
                      33290-33588). The five permit programs
                      covered by the CPR are: the Hazardous
                      Waste Management (HWM) program
                      under Subtitle C of the Resource
                      Conservation and Recovery Act
                      (RCRA);  the Underground Injection
                      Control (UIC) program under Part C of
                      the Safe Drinking Water Act; the
                      National Pollutant Discharge
                      Elimination System (NPDES) program
                      under Section 402 of the Clean Water
                      Act; the state "dredge  or fill" program
                      under Section 404 of the Clean Water
                      Act: and the Prevention of Significant
                      Deterioration (PSD) program under
                      regulations implementing Section 165 of
                      the Clean Air Act.
                        Part 122 established definitions and
                      basic permit requirements for EPA-
                      administered RCRA, UIC, and NPDES
                      programs. It also provided certain
                      requirements applicable to state
                      programs, including state 404 programs,
                      but only to the extent Part 123 explicitly
                      referred to Part 122 requirements. Part
                      122 spelled out in detail who must apply
                      for a permit; contents of the
applications; what conditions must be
incorporated into permits; when permits
may be revised, reissued, or terminated;
and other •requirements.
  Pact 123 established the requirements
'for state programs operated in lieu of
EPA, after a program has received the
approval of the Administrator. In
addition to the RCRA hazardous waste,
UIC, and NPDES programs. Part 123
governed state Section 404 programs for
discharges of dredged or fill material
into certain waters of the United States.
After receiving the approval of the
Administrator, a state may issue Section
404 permits, in lieu of the United States
Army Corps of Engineers, basically in so
called  "Phase II and III" waters
(sometimes referred to as traditionally
non-navigable waters). In addition. Part
123 contained the procedures for EPA
approval, revision, and withdrawal of a
state program.
  Part 124 established the common
procedures to be followed in making
permit decisions under the RCRA
hazardous  waste. UIC. PSD. and NPDES
programs. It included procedures for
public participation, for consolidated
review and issuance of two or more
permits to the same facility or activity,
and for appealing permit decisions. Most
requirements in Part 124 are only
applicable  where EPA is the permit-
issuing authority. However, Part 123
requires states to comply with some of
the Part 124 provisions, such as the
basic public participation requirements
of permit issuance.
  Technical regulations containing
requirements and criteria which apply to
decisionmaking under the RCRA,  UIC,
NPDES, 404. and PSD programs were
developed  separately and do not appear
in Parts 122-124. These other regulations
set the substantive standards for the
contents of permits issued pursuant to
Parts 122-124 and provide some of the
technical bases for determining the
adequacy of state programs and
individual permit decisions.
  In the CPR, the Agency intended to
encourage  consolidated permitting in
three ways:
  (1) It adopted procedures to allow
coordinated processing of multiple
permits for a single facility. A single
short application form was developed to
provide basic information needed by all
permit programs. Procedures  were
established to allow joint public notice,
hearings, and issuance for multiple
permits.
  (2) It established uniform procedures
and permit requirements across EPA
permit programs to provide more
consistency and predictability to  the
regulated community. We hope that an

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              Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983  / Rules and Regulations         14147
applicant who had obtained one EPA
permit would find it easier to obtain
other EPA permits by following similar
procedures and meeting similar
requirements.
  (3) The regulations adopted a
consolidated format They interspersed
requirements for one permit program
among requirements for other permit
programs. The regulations were
organized both by topic (e.g. who
applies for a permit, or standard permit
conditions) and by permit program. For
the most part an effort was made to
describe fully the requirements on a
topic to the extent that the requirements
were common across permit programs,
and then subsequently to describe
program-specific variations on the topic.
  Subsequent to promulgation of the
CPR. industry, states, and other
interested parties have extensively
criticized  them. Petitioners representing
major industrial trade associations,
several  of their member companies, the
Natural Resources Defense Council,
several states, and others filed petitions
for judicial review of the  regulations.
Ultimately all petitions were
consolidated in the U.S. Court of
Appeals for the District of Columbia
(NRDC v. EPA, No. 80-1607 and
consolidated cases, filed  June 2,1980).
Amendments resulting from this
litigation are discussed in Section II of
this preamble.
  In addition, many individuals,
including some of EPA's own regional
officials charged with implementing the
CRP, complained that the regulations
were excessively complex and difficult
to understand and to implement
   Consequently, the President's Task
Force on Regulatory Relief designated
the CPR as one of seven EPA regulations
for Agency Review. Since late 1981 the
Agency has ben re-assessing these
regulations with the following objectives
in mind:
   • Reduce the burden the regulations
.impose in terms of monitoring,
recordkeeping, testing, reporting, and
general paperwork.
   • Increase the flexibility with which
EPA can transfer permitting
responsibilities to the states.
   • Provide the Agency and states with
more efficient ways of managing.
permitting workloads.
   • Settle the litigation outstanding
 against the regulations.
   • Make the regulations easier to use
 and less complex.
   In general, the Agency has not found
 the benefits of permit consolidation, in
 any of the three senses listed above, to
 be as extensive as expected.
 Consolidated processing of multiple
 permits has been very rare. The fact that
the various permit programs regulate
inherently different activities and thus
must impose generally different sorts of
requirements has limited commonalities
across permit programs. Finally, the
consolidated format of the regulations
has made them unnecessarily difficult to
use.
  For example, the consolidated format
for Part 122 tended to make an applicant
interested in meeting the requirements
for a single permit do two undesirable
things:
  • Read unrelated material pertaining
to other permits not of interest to him;
and
  • Flip back and forth between two
subparts of the regulations.
Ahbougth Subpart A cor.lained-.-7-.ostly
material common to all permit programs,
it also contained material applicable to
individual programs. That maier.al
proved to be distracting. In addition, the
frequent necessity to proceed back and
forth between Subpart A and Subpart B,
C, or D caused confusion. Part 123 (state
program requirements) of the CPR was
organized similarly—it too tended to
make an individual or state  interested in
a single permit program read irrelevant
material and flip back and forth
between subparts.
  Today's deconsolidation is intended
to correct the problems created by the
consolidated format. It will also make it
easier to implement other, more
substantive changes under
consideration to meet our objective of
providing regulatory relief.

n. Relationship of This Promulgation to
Other Changes in the CPR
   Today's promulgation of
"deconsolidated" regulations is only one
of several steps we have taken or will
take, to meet our regulatory relief
objectives. The Agency has already
completed two rule-makings to meet
these objectives:
   (1) Amendments dealing with issues
addressed in the settlement agreement
 on the UIC-re!ated issues of the CPR
were promulgated in the Federal
 Register on August 27 1981 [46 FR 43136)
 and on February 3,1982 (47 FR 4992).
   (2) Technical amendments dealing
with some of the issues addressed in the
 settlement agreement on the RCRA-
 related issues of the CPR were
 promulgated on April 8,1982 [47 FR
 15304).
   These changes are reflected in today's
 deconsolidated regulations.
   In addition, the Agency has proposed
 other regulatory changes:
   (1) Amendments dealing with nearly
 all of the issues addressed in the
 settlement agreement on the NPDES-
 relatcd issues of the CPR were proposed
 on November 18, 1982 (47 FR 52072).
   (2) An amendment dealing with one of
 the issues addressed in the settlement
 agreemeift on the RCRA-related issues
 in the  CPR was proposed on July 23,
 1982 (47 FR 32038).
   (3) Amendments dealing with issues
 addressed in the settlement agreement
 that were common to more than one
 permit program (the "common issues
. settlement")  and 3 issues specific to the
 NPDES program were proposed on June
 14,1982 (47 FR 25546).
   The Agency plans to propose more
 changes to ihe deconsolidated CPR over
 the next few months:
   (I) Additional changes addressing the
 remaining issues dealt with in the
 settlement agreement on the RCRA-
 related issues in the CPR.
   (2J Substantive changes to reform the
 NPDES program beyond those changes
 resulting from litigation, including final
 action on several provisions of the
 NPDES regulations which are currently
 suspended.
   (3) Substantive changes to encourage
 assumption of the 404 permit program by
 states.
   (4) EPA may also propose a set of
 changes to streamline the permitting
 procedures common to all programs
 found in Part 124.
 These proposed changes will be
 reflected in the appropriate program
 regulations when rulemaking is
 complete.
   The Agency believes that these
 changes will respond to nearly all of the
 criticisms that have been directed
 against the CPR. The regulations that
 result should be substantially less
 onerous for all concerned—permitters.
 permittees, states, citizens, and EPA—
 and will only very minimally, if at  all,
 reduce the environmental protection
 that the regulations are intended to
 achieve.
 HI. Description of Today's Amendments
   In today's amendments, we are simply
 revising the  consolidated format of the
 regulations. We are deconsolidating Part
 122 (permit requirements) and Part 123
 (state program requirements) of the CPR.
 We aer leaving Pan 124 (common
 permitting procedures) in its current
 consolidated format Each part of the
 new regulations (122.123.144.145. 233.
 270.271) will pertain solely to one
 permit program. The reader interested in
 only one permit program will not have
 to read irrelevant material pertaining to
 another program. Furthermore, EPA has
 attempted to order the subparts within
 each part in a logical sequence so that
 reading can be done sequentially.

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 14148
Federal  Register / Vol. 48, No. 64  /  Friday. April 1,  1933 / Rules and  Regulations
   Today's amendments simply reiterate
 the existing content of the regulations in
 a, new format, with two narrow
 exceptions. First, several provisions
 have been deleted because they
 duplicate other provisions in the
 regulations or explain the consolidated
 format of the regulations and thus are no
 longer necessary. Deleted provisions are
 identified in the tables in the Appendix.
 Second, a few technical amendments
 have been made. They are described
 below.
  In addition to the organizational
 changes resulting from deconsolidating,
 the Agency has made minor wording
 changes to U1C permitting requirements
 in selected sections of Part 144 (old Part
 122). These changes essentially involve
 amending language to clarify the scope
 and enforceability of the procedural
 requirements which were previously
 outlined in 40 CFR Part 122, but they in
 no way extend the scope of the
 regulations. For example, in several
 sections the language has been changed
 from an indirect description of what
 standard a program must require an
 owner/operator meet, to language that
 simply states that an owner/operator "is
 required" to meet the standard. These
 minor  wording changes, in addition to
 making the existing requirements more
 specific, will also enable EPA, where
 appropriate, to incorporate these
 regulations by reference directly into
 each federally implemented program the
 Agency promulgates, since the
 requirements will be  couched in
 language that makes  them directly
 enforceable  against owner/operators.
  The  language changes do not alter the
 fact, however, that the requirements of
 Parts 144 and 145 are simply minimum
 requirements for all U1C programs. The
 old regulations in § 122.1(b)(l)(i) and
 § 122.31 (a) have always made clear that
 the regulations were to serve as
 minimum requirements for EPA
 administered programs as well as
 approved state programs. These
 regulations do not impose requirements
 directly on owner/operators. The
 requirements set forth in these
 regulations will become binding on
 owner/operators only when they are
 included in a specific state program.
Each state program will be approved (in
 the case of a state administered
program) or promulgated (in the case of
 an EPA administered program) pursuant
to appropriate procedural requirements.
  The Agency has also made a minor
technical change in the § 404 permitting
requirements at § 233.18, Confidentiality
of Information. In the existing
regulations, the denial of request for
confidentiality of the application form
                         and the permit appears only in the
                         NPDES section: it should have also
                         appeared in the 404-specific section in .
                         accordance with  Section 404(o) of the
                         Clean Water Act. This technical change
                         in today's regulations corrects that
                         omission'.
                          The Agency has also incorporated
                         into today's regulations previously
                         issued suspensions of several provisions
                         of the NPDES permitting requirements.
                         The text of these  suspensions, and the
                         date of their original issuance, are
                         indicated at the end of those sections of
                         the regulations where the suspended
                         portions are located.
                          The first two suspensions affect
                         definitions found in § 122.2. On July 21.
                         1980, the last sentence of the definition
                         of "waters of the  United States," which
                         affects the exclusion of certain waste
                         treatment systems from the definition of
                         waters of the U.S., was suspended. On
                         October 15,1S30, the definition of "new
                         discharger" was suspended only as it
                         applies to offshore mobile drilling rigs
                         operating in areas other than those
                         classified as environmentally sensitive.
                          Several suspensions have been made
                         which limit the mandatory testing
                         requirements of the NPDES apolication
                         form 2C for primary industry categories.
                         These suspensions are explained in
                         detail in the notes following § 122.21. as
                         well as the revised Table I of Appendix
                         A to Part 122.  In addition, portions of the
                         footnotes to the table in §122.21(d)(2),
                         which explain the requirements for
                         submission of applications and
                         accompanying effluent data, have been
                         suspended. This suspension is explained
                         in note 5 following §122.21.
                          Also,'paragraphs (b)(l) and (b)(2) of
                         § 122.29 have been suspended. These
                         sections explain the difference between
                         a new source and a modification of an
                         existing source.
                          Final Agency action on each of these
                         suspensions will be taken in subsequent
                         Agency rulemakings. For example, on
                         June 14.1982. at FR 25526. et seg. EPA
                         proposed amendments to the "new
                         discharger" definition as it affects
                         mobile drilling rigs. The suspension of
                         the definition made on October 15,1980
                         will be withdrawn once final regulations
                         on this proposal are published.
                          Finally, the Agency has also made
                         several minor corrections to RCRA Parts
                         270 and 271.
                          Reorganization and renumbering of
                         old Parts 122 and 123 necessitates
                         revising the cross-references to former
                         Parts 122 and 123 found elsewhere in the
                         Code of Federal Regulations. Cross-
                         references have thus been revised in 40
                         CFR Parts 124,125,146, 260, 261. 262.
                         263, 264. and 265.
   As an appendix to this preamble, EPA
 has prepared a table illustrating how the
 Agency has reorganized the CPR. Note
 that since the Agency is only
 reorganizing the CPR, we are making no
 changes to any of the permit application
 forms that were published with the
 regulations. These forms remain in effect
 and we are not reprinting them here.
 Also note that since the Agency is not
 now modifying Part 124 of the
 regulations, the procedures of that Part
 allowing consolidated processing of
 applications for multiple permits remain
 in effect. As indicated previously, EPA
 is considering separate rulemaking to
 revise Part 124.

 IV.  Effective Date and Final
 Promulgation

   This promulgation does not change
 the  substance of the regulations at all; it
 merely changes their location in the
 Code of Federal Regulations.
 Accordingly, we are proceeding directly
 to promulgation without previously
 having proposed the reguation. EPA
 further believes that this is not the type
 of regulation that Congress had in mind
 when it provided a delay between the
 promulgation and the effective date of
 revisions to regulations. Making the
 changed format effective immediately
 will benefit those who use the
 regulation. Consequently, EPA believes
 it has good cause to make these rules
 effective immediately.

 V. Executive Order 12291

   This regulation is not major because it
 will not result in an annual effect on the
 economy of $100 million or more, nor
 will it result in an increase in costs or
 prices to industry. There will  be no
 adverse impact on the ability of the
 U.S.-based enterprises to compete with
 foreign-based enterprises in domestic or
 export markets. The regulation merely
 changes the location of the permit and
 state authorization requirements in the
 Code of Federal Regulations.
   EPA submitted this rule to the Office
 of Management and Budget for review
 as required by Executive Order 12291.
 Any comments from OMB to EPA and
 any EPA response to those comments
 are  available through: John Chamberlin,
 PM-220, U.S. Environmental Protection
 Agency, Washington, D.C.

•VI. Regulatory Flexibility Act

   Today's promulgation does not change
 any substantive requirements of the
 permitting regulations.
   Accordingly, I hereby certify that this
 regulation will not have a significant
 economic impact on a substantial
 number of small entities.

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                Federal Register  /  Vol. 48. No. 64 /  Friday. April 1.  1983 /  Rules  and  Regulations
                                                                          14149
 List of Subjects
 40 CFR Part 122
   Administrative practice and
 procedure, Reporting and recordkeeping
 requirements, Water pollution control,
 Confidential business information.

 40 CFR Part 123
   Indians—lands. Reporting and
 recordkeeping requirements, Water
 pollution control. Intergovernmental'
 relations, Penalties, Confidential
 business information..
 40 CFR Part 124
   Administrative practice and
 procedure, Air-pollution control.
 Hazardous materials,  Waste treatment
 and disposal. Water pollution control,
 Water supply, Indians—lands.
 40 CFR Part 125
   Water pollution control. Waste
 treatment and disposal.
 40 CFR Part 144
   Administrative practice and
 procedure. Reporting and recordkeeping
 requirements, Confidential business
 information. Water supply.
 4O CFR Part 145
   Indians—larlds. Reporting and
 recordkeeping requirements.
 Intergovernmental relations. Penalties,
 Confidential business information.
 Water supply.
 40 CFR Part 146
   Hazardous materials. Reporting and
 recordkeeping requirements. Waste
 treatment and disposal. Water supply.
 40 CFR Part 233
   Administrative practice and  •
 procedure. Reporting and recordkeeping
 requirements. Confidential business
 information. Water supply, Indians—
 lands, Intergovernmental relations.
Penalties, Confidential business
 information.
40 CFR Part 260
   Administrative practice and
 procedure. Confidential business
information, Hazardous materials.
Waste treatment and disposal.

 40 CFR Part 261
   Hazardous materials, Waste
 treatment and disposal. Recycling.

40 CFR Part 262
   Hazardous materials, Imports,
Labeling, Packaging and containers.
Reporting and recordkeeping
requirements. Waste treatment and
disposal.
40 CFR Part 263

   Hazardous materials transportation.
Waste treatment and disposal.

40 CFR Part 264

   Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements, Security measures, Surety
bonds, Waste treatment and disposal.

40 CFR Part 265

   Hazardous materials. Packaging and
containers, Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment and disposal.
Water supply.

40 CFR Part 270

   Administrative .practice and..
procedure. Reporting and reccrdkeeping
requirements. Hazardous materials.
Waste treatments and disposal, Water
pollution control, Water supply,
Confidential business information.

40 CFR Part 271

   Hazardous materials. Reporting and
recordkeeping requirements. Waste
treatment and disposal. Water pollution
control Water supply.
Intergovernmental relations, Penalties,
Confidential business information.
  Dated: March 16.1983.
John YY. Hernandez,
Acting Administrator.
•  Authority: Clean Water Act, Safe Drinking
Water Act. Clean Air Act. Resource
Conservation and Recovery Act: 42 U.S.C.
6905. 6912. 6925. 6927, 6974.

Appendix

   This appendix describes the
reorganization of former Parts 122 and
123. Four tables follow—one for each
program: NPDES, RCRA. UIC, 404. Each
table lists all provisions of former Parts
122 and 123 applicable to the particular
program and the new location at which
the provisions are now presented.

NPDES Program

   Below is a list of the NPDES-related
sections in former Parts 122 and 123 and
their corresponding sections in new
Parts 122 and 123.
NeUmeWlOW

ragueaioonc?
\ ^77 1
igi
p>/
(r). 	 	
M- 1 -. .

11
Purnose and scope of Part 122
la) 	
New
122.1(a)
122.1IO.
122.1UD
122.1(g)'
12i1le).
122.1(0
Removed.
         Name in) OKI
          Defirationi
f 152-3
      Ap&catton lor • permit'
      (c).
   Cononuaoon of e«j*nrfl pemwu
 Signatories to permit t
  Conations applicable to a* permits
               '
        BfWOpt
               I conoJtxxij
       Duration ol parrraU
      (a)..._
      (b)..._
      lc)	
                            Removed.
                            122J.
 122_2I<«)
 122.21 (b|.
 122.21 (e).
 122.21(1)
 122.21(0)


 122.8.
 12Z22.


 122.41.
 (All sectavu are
  same
  paragraphs)


 122.43.
.j 122.46(a(
     Scnedutes ol-compkance
! 122.10	
Requ»ements tor reconkng and reporting
       ol monitoring remits
{12Z11	
   Considerations under Federal law
} 122.12—	
        Effect ol a permit
i 122.13. -.
       T r&nstw o( pwrnrts
f 122.14..
    Modification or revocation and
      raeauanoaot permits
$122.15	_
      (aMS) fiKn)-
      (aMS)	
      Twnwvatbon of pmiiMis
$122.18.

      la).
Noncompnanee and program reporting by
          theOnctor
} 12Z1B____	
      (c).
   Purpose and scope et Sutapen D
      la)—
      (b)—
      -
  (15).
 Removed.
                            122.63
                            »e).
                            123.45.
                            Removed.
                            123.45(5).
                            Removed.
 IZ3.4S
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14150	Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983  / Rules and Regulations

Name and DM

1 12254 -,

tac*Ms
|'f«
Aquacufture prefects
Separate storm sewors
| 199 «
savwurmral •enviiws
I1WW
General permits
11!? W
Additional conditions aopteaMt to HI
NPOcS permits
1 199 AO
(a) 	 .. -. 	 	 	
e»....... 	 - 	 ~ 	
(c)
(d) .... , ....
(«)-,„,„„-,„„„-
(1} . 	 	 ,,
(g>~
<•>) 	 - 	
Additional conditions aoabcabie to
specified categories ol NPDES permits
§1»B1 	 .... ..... 	
Establishing NPOES permit conditions
5199R3
_ kinnr-r
§ 122 S3 .._...
Duration ol certain NPOES permits
|195IU
(a)
(Bi-
le) 	
Disposal of pollutants mo wells, no
publicly owned treatment works or by
land application
I199«
New sources and new Dischargers
5 199 UK
Purpose and scope

(»)-, ,..,. 	
(C) 	
.. . _ 	
(i) 	 - 	
0
(k) 	 	 -...,
Definitions
11939
Deiiwnu of a progiarn submission
1 123 •»

}i«ii
Attorney General's statement
J1935 	 ,., 	 . .. .
Memorandum ol agreement with regional
•dmrNstrsMr
§ ir"5
la) 	 1
(g) 	
Requrements for ijeiiiiilliiiy
(p)p) 	
(?)
P) 	
(4) 	
t")
(K) ,,,
(7)
("I
CD 	
(10) 	 	 _ 	 _ ..
(ii) 	
(19)
113) 	 	 	 	
New
122-23.
122.24.
12525
122^6.
122.27.
122-28.
122.41.
122.4i(a).
122.41(c)
122 41(1)14), (5)
12241(k).
122 41(0(3).
122.41(1)16).
122.41(m).
12241(n).
122.42.
12244
122 45.
122.46(3).
122.46(«).
122.46(0.
122.50.
122.29.
123.1M). (c).
Removed.
Removed.
Removed.
123 lie).
123 Kc).
123 ltd)
123.1(f).
Removed.
123.i(h|.
123.1(0.
123.2
123.21.
123.2Z
.123-23.
123.24(d).
123-24(«).
1Z3.25.
(aH4).
(S).
(12).
(14).
(17).
(181.
(18).
(2).
(21).
(22).
123).
5 123.45.
123.25(aX3).

Name and ok)

(15) , 	
(16) 	 	 	
(17)...^. 	 	 _ 	 	 	
1101
 "
EPA review of and obtaeliens la Stale
pfllllllK
i'MTH
PfONbMiOftt
S1S3.76 	 	 	 ...
Approval process
S193T7

New
(24)
125)
(26).
(27).
(26).
129).
(30).
(31).
Removed.
Removed.
(a)(i)
«).
(8).
(7).
(8).
(3).
(10).
(11)
(12).
(Ml
(15).
(16).
(17).
(20).
(32).
(33).
(34).
(36).
(37)
IM
123-26
123.27.
(aH3)(i).
UK3)(>).
WOKS).
123.41.
1233.
12361
123.62le).
123.63.
123.64.
123.1(8).
123.1(0).
123.1(g).
123.1W).
123-28.
123.42.
123.43
12344.
123.29
123.61.
UIC Program
Below is a list of the UIC related
sections in Parts 122 and 123 and their
corresponding sections in Parts 144 and
145: Part 122=144.
Nitnw sod old
What are tne oonsobdated regulations
{ 199 1
Purpose and scope of pan 122
§19/3 '
Definitions
1 122?
Application for a permit
§ 1974
I12?4lal
«1994(«K)
< 19J-10I»)(4)
Reouirements for recording and
reporting of monitoring results
§13911
Considerations under Federal law
§19313 	
Eflects ol a permit
§i»«
Transfer of permits
§ 12? 14 	
Modification ol revocation and
reissuance of perms
«199(H
Termination of pfliimis
51971*
Mmor modrfication o^ p^viUts
§ 122.17(0(1) 	 	 _ 	 	 	 	
S19917(l)(9)) , , ._
§ 122.17(f){3» 	 .. 	 	 _..
by the OVector
§ If? H| 	 	
| 199 !«(/-)
§ 1??.18(C)(4(.. 	 	 	 	
il22.i8).
§ 1*4.8(b)O
} 144«C).
§ 144.5.
§144.1.
§144.6
§1*4.11.
§1*4^
§144.7
§ 144.13.

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Federal Register / Vol. 48. No. 64 / Friday. April 1; 1983 / Rules  and Regulations
14151

Name end OU
JI2217(»>(1)
J ITI.U,,!)
9 122.37M 	 J 	
§ 122.3'(cl 	
519J37(««)
Appacaton tor >penrtt auownzaton
bypemw
* ifyyH^)
{177 TfM**)
g12Z38(C» 	
Am'psVnMs

5 ts^jn 	 .IM .... 	

UC permits
9"? 4i , ,
ii*94i(*) 	
912941(b)
;i99«l(r) „.._._.,.
} 1C? «1(d>.. 	 	 _ 	
3122.41(4) 	
S12J1S , „.. . ,


5 1 22 42(c)
§1294»l)
i 123.1(8 	
f 123.1W 	 	 	
DeAntons

snwn

; 191 a
51»-*(S) 	
Attorney General's statement
i'3?!1
Memorandum ol agreement wiBi me
J'Mfl
Ftee}utfefflefite lof pofinitlinQ
{ 1»fl7 	
J 123 TiaHlMZl)

N»>
! iM^t.
§1*4^2.
§144.23.
§ 144J4.
§144^5
|144J6.
J 144.15.
§ 144.31(1).
| 144J1|.
§ 14S.1|C).
§ 145 1(0)
§ 145.31(01-
i I45-?1(«I.
i 145. im.
Oal«Md.
{ 14&21IQ.
i 145.1(9).
§14S2
1 145^1.
§145^2.
§145.22(1)
§ 14SJ3. '
JI4U4
{145.11.
J14S.11(aM1K
BD
Nam and ow
J 'ra^eK'H1*1

P^jyamt
j«»i«
Raoufttinants lor •nfoicanwnt authority
5173$
j 1^-1 9j.tp^.ff»l , , , ,
( 123.9(«)(3)OiXB>
ShwtQ o( ntoniwbon
Ji?31D , .„• 	 ...-. -----
Cuunfrnahoo witti olhar pcoQiaina
j«mi 	
Approval proeat*
3"?'? 	
Prooaour* lor ravoon ol Stau
programs
§123.13 	 _ 	 	 	
9 1ft 13|l) 	
CnMna tor withdrawal ol Sale
programs
ProcedurM (a) 	 - 	
Purpose and scope ol su&pan C



§1Wi1«l) 	
§123.5 He) 	 	
Reouramem lo obtain a permt


Approval process
9 19T ^«

JIMIU(rt) 	
Prooadures lor n(ne.iwal ol SUM f 1C
programs
§ 123.55 	
}123^5|a) — 	 _ 	 	 	 	 —
9123.55(0) . 	 	 	
New
1 145.1 1(a»22>-
(33).
§145.12.
§ 145 13.
§145.13(a)(3H<).
{ 14S.13|a)(3)(u).
§146.14
Removed.

5145.31.
§ 145.32.
§ 145.32(0
§ 145.33
§ 145.34
§i45.34(a)
§ 145 1.
Deleted
§ 14S.21(a>.
§ 14S^1(c).
§ 145.21(0).
§ 145J1(e).
S145.11(a)(27)
§ 14S.21(b).
§ 145.31.'
§ I45.31UMC)
S uSJUe).
§ 145.34
§145.34(b)(1)
§ 145.34(6X2).
404 Program
Below is a list of the 404 related
sections in Parts 122 and 123 and their
corresponding sections in Part 233.
Ok) name
Wtitt are Qte consofedaied permit fegu*
kwonsT (Purpose and scope ol Pan
233).
1K>1 	
17> 1(«)
172in»(1)(iK) .
Oefnkora
179 j . ,,, j
Appkcaaon tor a permrt^
1S24(a| 	 	 _
122 4(B) 	
122 *(t]
1»24(rt)
122.41*) 	 	
Contnuahon ol expnng pemws
m*. (»H"!I 	 , 	 ,-
12iSld).._ 	 	 	 	
Signatories lo permM appkcauoo and
reports
122.6 |aM»« --, - ,„ '
122.1S(a|(1H2) 	
199 iy.^1^)
177 151aM4)
122.15(a)(5) 	
«»"Wffil
199 1^(r)
Termnation ol permtt
19? 1f^
122.1C(tK*}
122.l«aX?) 	
122.16(aK3) 	 _ 	 ,
1""M-)(4) 	 .,„
122.16(b) 	
19917 	
19i* 1?(?)_40 	 „,,._ 	
199 17(4)^g)
19917IM ... ,
New
Removed.
233.3
2334.
2334(0)
233.4IC)
233 4|d).
233.4(e)
233^(1).
233.5.
Removed.
233.5.
233.8. «•
233 6 (8H.
233.14taU3)(iH«)
Removed
233.14(aK4).
Removed.
233.14(a|(S)
233.14(6). -
Removed.
233 15
233.15(1).
233.15(b).
233.15IC).
. 233.1 Sid).
1 Removed
233.16.
233 16(aHdi.

233.16(e).

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14152
Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations

OH name

by the d-rector





Confetarflttfty of niomwton
1?7 19
12? 19(1) — 	 	
122.19W>M1I 	 - 	 - -
12£19fl))(?H3)..-— — 	 '•• ~ 	
1 22. 1 Wb)(4) 	 	 — .„ 	
!2Z1» 	 •---
123 1(e) 	 	 ...,._ — 	
123 1(0 	 : 	
1 23. 1 Mt| .
123.9. '
233.18.
EJ3.16<»)<1).
R«nov*d.
233.1MtM3.l-
Removed.
233^0.
233.20(t).
233 20(0).
233.rOtC).
23£ 201CI
233.20W
233^0(0.
233.20(q)
233.20W.
233.20(1)
233 20(J)
Removed
233.21
233^1(aM3)
233-22
233.i2l.He).
Removed.
233 22|fHm»-
233.23
'233 23lal-ftj).
ZS3J3IC)
233.24
233 2«la)
23324(D)(1H2).
233.24IDK3.)
233^4(0)(4 )
233J4IC).
Rarnowaa
R«mov«a.
233^4lflX
233-24<«).
233 ?B
233J60).
233^60>l
233^7.
23327llHd).
Removed
233 2»
4 233.28WH4I.
I Removed.*
233.2BHc).
(c)(2)(vHvfl
270.10
(•hOT.
270.70-270 73
270.70.
270 71(a)

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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations 14153

Name and oU
Change* during interim stabs


Grounds tor termination
ft) , 	 	 - - -
Content* of Part A ol the RCRA permit
appfccatton

(6) 	 	
(CH9) 	 —
Contents d Pan B of the BCflA pemw
application •
SI2' 25 ...__ .., 	 ~ 	
(a) 	 	
(»„,, 	 , 	 	 	
DHV} , ,,.„ 	 „.„.,-.,



(b)|4)
(*MS>

(*?K6( n * !
(|)-IWM)
' (iHoc) ,ZI........ ~~'.. ~ 	 ~,,,..
If) 	 , 	 .,, .,„ ..,
Perms by rule
51*731! .
Short term pemwts
Emergency peimts
Hazardous waste nonerator permits
Permits for land treatment
demonstrations
(c)
Additional conditions applicable to an
RCRA permits
(W
(C) 	

(e)f1M3)
Establishing RCRA permit commons
K 1^7 7*^ i
If ilef mi pernvts lor U1C watts

New
270,72,
270.7l(b).
270.73.
270.13.
(e).
UK)
270.14-270 X
27014.
270.15
land)
27016
(aHf).
270.17
(aHi)
270.18
(BMil
27019
laHd)
270.20
270.21
laHD
270.14(O
270.60
270.61-270.63.
270.61
27062
270.63
270.30
(1)12)
(D(2)
CK6).
270.32UMbl.
270.64
Part 123=Part 271
Name and old

Sucoan A— General Program
Rewed: Reauranenat tor final autnonza-
aon.
Purpoee ana acopc
 	
(r.HX) 	 	
Definitions
Bantams ol a t>uuja.'ii submaaion
Program oescnolion
m




New
5271 1.
nemeved.
Removed.
(bHO.
Removeo.
527I.S
Removed.


Name and OM
Anomey Oenerafa atqtement
J123.S 	 	 	 	
(c) and (d) 	 '. 	
Memorandum of agreement


(WOI
(hH4) 	 	 	 	

(bMG) 	
(d) 	


(d>{4) 	
RequTfemems tor permitting
3 '23 7
(a)(i) ,......-..i «. ..........—



(a)( 1 1 } , 	 ..-_.. 	 . 	 ., 	 .,-.--
(a)(i3)
(aid 4H21 » 	
(b) .._. 	
(Wd)
(b)(3V 	
{HiS
ft»M7) ....—.——_——— 	 „.„...
fhM9t
Peourfements tor comobance evaluation
program
« 123.6 	 - 	
(•>) 	 , 	 	 ,.,...,,r-1, ,—-..„-
R«qu*ren*ent3 lor enforcement  State pro-
5271^3.
roval ol State pro-
Stale Hazardous
d m Sutraan A. as
5271JJ.
Removed
(aHd)
Name and ok)
Conaalency
Requrements lor IdenMcation and^sting
ol hazardous westet
Reguremenis for generators of
hazardous wastes
RcQuifenwnls lor liaomioflflrft of
x hazardous wastes
Reouvemenls tor hazardous waste
.management lacilibes
512336 	 	 	
ReQuvements with respec: to permits
ana permit applications
512337 	 	 . . 	
EPA review ol Slate perms
^••>->1B
Approval process
§ 121 39
Subpan F— Beeuuemenis lor mtenm auir
hazaroous waste program
Rctnted SuDpari B — Recuirements for m
Purpose and scope
5123121 _ _ _
Schedule
5123 132
Elements ol a program submssion
Program description
Anomey General's statement
Memorandum ol agreement
§ 123 126 	 	 	
Autnonzauon plan
$ 123 127 	 	
Program reomrements lor mtenm
autnonzatnn tor phase 1
Additional pioyiam rerjiurernents for
tnienm autnonzation lor prase II
Interstate movement ol hazardous waste
5191 tan


Shanng of elimination
Cum Uuia lion with other ptoyenis
EPA review of State permits
Appioval process •
5173115 	 	 .
Withdrawal of State programs
5171111;
Reversion of Stale programs

New
5271.4
5271.9
(271.10.
5271.11
5271.12
5271.13
S27t 19
5271.20
nnzahon of State
e
tenm authorization
5271.121
5271 122
5271.123
5271.124
5271.125
5271 126
5271 127
5271 128
5271.129
5271.130
5271 131
5271.132
5271.133
5271.134
5271.135
5271.136
5271 137

Part 122 is revised to read as follows:
PART 122— NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
Subpart A— Definitions and General
Program Requirements
Sec.
122.1 Purpose and Scop--.
122.2 Definitions.
i 122.3 Exclusions.

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                Federal  Register  /  VoL 48. No. 64 / Friday. April  1.
                                 1983 /  Rules  ana  Regulations
122.4  Prohibitions (applicable to State
    NPDES Programs, see § 123.25).
122.5  Effect of a permit.
122.6  Continuation of expiring permits.
122.7  Confidentiality of information.

Subpart B—Permit Application and Special
NPDES Program Requirements
122.21  Application for a permit (applicable
    to State programs, see 5 123.25).
122.22  Signatories to permit applications
    and reports  (applicable to State
    programs, see J 123.25).
122.23  Concentrated animal feeding
    operations (applicable to State NPDES
    programs, see § 123.25).
122.24  Concentrated aquatic animal
    production facilities (applicable to State
    NPDES programs, see § 123.25).
122.25  Aquaculture projects (applicable to
    State NPDES programs, see § 123.25).
122.26  Separate storm sewers (applicable to
    State NPDES programs, see 1123.25).
122^7  SilvicuituraJ activities (applicable to
    State NPDES programs, see § 123.25).
12Z£8  General  permits (applicable to Stale
    NPDES programs, see § 123.25).
122.29  New sources and new discharges.

Subpart C—Permit Conditions
122.41  Conditions applicable to all permits
    (applicable to State programs, see
    §123.25).
122.42  Additional conditions applicable to
    specified categories of NPDES permits
    (applicable to Slate NPDES programs.
    see $ 123-25).
122.43  Establishing permit conditions
    (applicable to State programs, see
    § 123.25).
122.44  Establishing limitations, standards
    and other permit conditions (applicable
    to State NPDES programs. see'§ 123.25).
122.45  Calculating NPDES permit conditions
    (applicable to State NPDES programs.
    see § 123.25).
122.46  Duration of permits (applicable to
    State programs, see § 123-25).
122.47  Schedules of compliance.
122.48  Requirements for recording and
    reporting of  monitoring results
    (applicable to State programs, see
    § 123.23).
122.49  Considerations under Federal law.
122.50  Disposal of pollutants into wells, into
    publicly owned treatment works or by
    land application (applicable to  Slate
    programs, see $ 123.25).
Subpart D—Transfer, modification,
revocation and rsissuance, and termination
of permits
122.61  Transfer of permits (applicable to
    State programs, see § 123,25).
122.62  Modification or revocation and
    reissuance of permits (applicable to State
    programs, see  § 123.25).
122.63  Minor modifications of permits.
122.64.  Termination of permits (applicable
    to State programs, see § 123.25).
  Authority: The Clean Water Act 33 U.S.C.
§ 1251 et seq.
Appendix A—NPDES Primary Industry
    Categories.
Appendix B—Criteria for Determining a
    Concentrated Animal Feeding Operation
    (1122.23).
Appendix C—Criteria for Determining a
    Concentrated Aquatic Animal Production
    Facility (122.24).
Appendix D—NPDES Permit Application
    Testing Requirements (122 21).

Subpart A—Definitions and General
Program Requirements

§ 122.1  Purpose and scope.
  (a) Coverage. (1) These regulations
contain provisions for the National
Pollutant Discharge Elimination System
(NPDES) Program under sections 318,
402, and 405(a) of the Clean Water Act
(CWA) (Pub. L 92-500,  as amended by
Pub. L. 95-217, Pub. L. 95-576, Pub. L 96-
483, and Pub. L 97-117; 33 U.S.C. 1251  et
seq.}.
  (2) These regulations cover basic EPA
permitting requirements (Part 122), what
a State must do to obtain approval to
operate its program in lieu of a Federal
program and minimum requirements for
administering the approved State
program (Part 123), and procedures for
EPA processing of permit applications
and appeals (Part 124). Part 124 is also
applicable to other EPA permitting
programs, as detailed in that Part
  (b) Scope of the NPDES permit
requirement (1) The NPDES program
requires permits for the discharge of
"pollutants" from any "point source"
into "waters of the United States." The
terms "pollutant", "point source" and
"waters  of the United States" are
defined in  § 122.2.   •
  (2) The following are point sources
requiring NPDES permits for discharges:
  (i) Concentrated animal feeding
operations as defined in § 122.23;
  (ii) Concentrated aquatic animal
production facilities as defined in
i 122.24;
  (iii) Discharges into aquaculrure
projects as set forth in § 122.25;
  (iv) Discharges from separate storm
sewers as set forth in § 122.26; and
  (vj Silvicultural point sources as
defined in  § 122.27.
  (c) State Programs. Certain
requirements set forth in Parts 122 and
124 are made applicable to approved
State programs by reference in Part 123.
These references are set forth in
§ 123.25. If a section or paragraph of
Parts 122 or 124 is applicable to States,
through reference in § 123.25. that fact is
signaled by the following words at the
end of the section or paragraph  heading:
(applicable to State programs, see
§ 123.25). If these words are absent, the
section (or paragraph) applies only to
EPA administered permits.
  (d) Relation to other requirements. (1)
Permit application forms. Applicants for
EPA issued permits must submit their
applications on EPA's permit application
forms when available. Most of the
information requested on these
application forms is required by these
regulations. The basic information
required in the general form (Form 1)
and the additional information required
for NPDES applications (Forms 2a-d)
are listed in § 122.21. Applicants for
State issued permits must use State
forms which must require at,a minimum
the information listed in these sections.
  (2)  Technical regulations. The NPDES
permit program has separate additional
regulations that contain technical
requirements. These separate
regulations are used by permit issuing
authorities to determine what
requirements must be placed in permits
if they are issued. These separate
regulations are located at 40 CFR Parts
125,129,133.136 and 40 CFR subchapter
N (Parts 400-460).
  (e) Public participation. This rule
establishes the requirements for public. -
participation in EPA and State permit
issuance and enforcement and related
variance proceedings, and in the
approval of State NPDES programs.
These requirements carry out the
purposes of the public participation
requirements of 40 CFR Part 25 (Public
Participation), and supersede the
requirements of that Part as they apply
to actions covered under Parts 122,123,
and 124.
  (f) State authorities. Nothing in Parts
122,123. or 124 precludes more stringent
State regulation of any activity covered
by these regulations, whether or not
under an approved State program.
  (g) Authority. (1) Section 301(a) of
CWA provides that "Except as in
compliance with this section and
sections 302. 306, 307. 318, 402, and 404
of this Act, the discharge of any
pollutant by any person shall be
unlawful."
  (2) Section 402(a)(l) of CWA provides
in part that "The Administrator may,
after opportunity for public hearing,
issue a permit for the  discharge of any
pollutant, or combination  of
pollutants,  * * "upon  condition that
such discharge will meet either all
applicable  requirements under sections
301. 302. 306, 307, 308, and 403 of this
Act. or prior to the taking of necessary
implementing actions relating to all such
requirements,  such conditions as the
Administrator determines are necessary
to carry out the provisions of this Act."
  (3) Section 318(a) of CWA provides
that 'The Administrator is authorized.
after public hearings,  to permit the
discharge of a specific pollutant or
pollutants under controlled  conditions
associated with an approved
aquaculture project under Federal or

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              Federal Register / Vol. 48. No.  64 / Friday. April 1. 1983  /  Rules and Regulations
                                                                       14153
State supervision pursuant to section
402 of this Act."
  (4) Section 405 of CWA provides, in
part, that "Where the disposal of
sewage sludge resulting from the
operation of a treatment works as
defined in section 212 of this Act
(including the removal of in-place
sewage sludge from one location and its
deposit at another location) would result
in any pollutant from such sewage
sludge entering the navigable waters,
such disposal is prohibited except in
accordance with a permit issued by the
Administrator under section 402 of this
Act."
  (5) Sections 402(b). 318  (b) and (c), and
405{c) of CWA authorise EPA approval
of State permit programs for discharges
from point sources, discharges to
aquaculture projects, and disposal of
sewage sludge.
  (6) Section 304(i) of CVVA provides
that the Administrator shall promulgate
guidelines establishing uniform
application forms and other minimum
requirements for the acquisition of
information from dischargers in
approved States and establishing
minimum procedural and-other elements
of approved State NPDES programs.
  (7) Section 501(a) of CWA provides
that "The Administrator is authorized to
prescribe such regulations as are
necessary to 'carry out his functions
under this Act"
   (8) Section 101(e) of CWA provides
that "Public participation in the
development, revision, and enforcement
of any regulation,.fitandard, effluent
limitation, plan, or program established
by the Administrator or any State under
this Act shall be provided for.
encouraged, and assisted by the
 Administrator and the States. The
Administrator, in cooperation with the
States, shall develop and publish
regulations specifying minimum
guidelines for public participation in
such processes."

 § 122J2 Definitions.
   The following definitions apply to
Parts 122.123, and 124. Terms not
 defined in this section have the meaning
given by, CWA. When a defined term
 appears in a definition, the denned term
 is sometimes placed in quotation marks
 as an aid to readers.
   AdminisXator means the
 Administrator of the United States
 Environmental Protection Agency, or an
 authorized representative.
   Applicable standards and limitations
 means all State, interstate, and Federal
 standards and limitations to which a
 "discharge" or a related activity is
 subject under the CWA. including
 "effluent limitations," water quality
 standards, standards of performance,
 toxic effluent standards or prohibitions,
 "best management practices," and
 pretreatment standards under sections
 301. 302, 303, 304. 306, 307. 308, 403. and
 405 of CWA.
   Application means the EPA standard
 national forms for applying for a permit.
 including any additions, revisions or
 modifications to the forms: or forms
 approved by EPA for use in "approved
 States." including any approved
 modifications or revisions.
   Approved program or approved State
 means a State or interstate program
 which has been approved or  authorized
 by EPA under Part 123.
   Average monthly discharge limitation
 means the highest allowable  average of
 "daily discharges" over a calendar
 month, calculated as the sum of ail
 "daily discharges" measured during a
 calendar month divided by the number
 of "daily discharges" measured during
 that month.                 _   .
   A verage weekly discharge limitation
 means the highest allowable average of
 "daily discharges" over a calendar
 week,  calculated as the sum  of all "daily
 discharges" measured during a calendar
 week divided by the number of "daily
 discharges" measured during that week.
   Best management practices ("BMPs")
 means schedules of activities,
 prohibitions of practices, maintenance
 procedures, and other management
 practices to prevent or reduce ;he
 pollution of "waters of the United
 States." BMPs also  include treatment
 requirements, operating procedures, and
 practices to control plant site runoff,
  spillage or leaks, sludge or waste
  disposal, or drainage  from raw material
  storage.
    BMPs means "best management
  practices."
    Contiguous zone means the entire
•  zone established by the United States
  under Article 24 of the Convention on
  the Territorial Sea and the Contiguous
  Zone.
    Continuous discharge means a
  "discharge" which  occurs without
  interruption throughout the operating
  hours of the facility, except for
  infrequent shutdowns for maintenance.
  process changes, or other similar
  activities.
    CWA means the Clean Water Act
  (formerly referred to  as the Federal
  Water Pollution Control Act or Federal
  Water Pollution Control Act
  Amendments of 1972) Pub. L 92-500, as
  amended by Pub. L 95-217,  Pub. L 95-
  576. Pub. L 96-J83 and Pub. L. 97-117, 33
  U.S.C. 1251 et seq.
    CWA and regulations means the
  Clean Water Act (CWA) and applicable
  regulations promulgated thereunder. In
the case of an approved State program,
it includes State program requirements.
  Daily discharge means the "discharge
of a pollutant" measured during a
calendar day or any 24-hour period that
reasonably represents the calendar day
for purposes of sampling. For pollutants
with limitations expressed in units of
mass, the "daily discharge" is calculated
as the total mass of the pollutant
discharged over the day. For pollutants
with limitations expressed in other units
of measurement, the "daily discharge" is
calculated  as the average measurement
of the pollutant over the day.
  Direct discharge means the
"discharge of a pollutant."
  Director means the Regional
Administrator or the State Director, as
the context requires, or an authorized
representative. When there is no
"approved State program," and there is
an EPA administered program,
"Director" means the Regional
Administrator. When  there is an
approved State program. "Director"
normally means the State Director. In
 some circumstances, however, EPA
retains the authority to take certain
 actions even when there is an approved
 State program. (For example, when EPA
 has issued an NPDES permit prior to the
 approval of a State program, EPA may
 retain jurisdiction over that permit after
 program approval, see § 123.1.) In such
 cases,  the  term "Director" means the
 Regional Administrator and not the
 State Director.
   Discharge when used without
 qualification means the "discharge of a
 pollutant"
   Discharge of a pollutant means:
   (a) Any addition of any "pollutant" or
 combination of pollutants to "waters of
 the United States" from any "point
 source." or
    (b) Any addition of any pollutant or
 combination of poQutants to the waters
. of the  "contiguous zone" or the ocean
 from any point source other than a
 vessel or other floating craft which is
 being used as a means of transportation.
 This definition includes additions of
  pollutants into waters of the United
  States from: surface runoff which is
  collected or channelled by man;
  discharges through pipes, sewers, or
  other conveyances owned by a State,
  municipality, or other person which do
  not lead to a treatment works; and
  discharges through pipes, sewers, or
  other conveyances, leading into
  privately owned treatment works. This
  term does not include an addition of
  pollutants by any "indirect discharger."
    Discharge Monitoring Report
  ("DMR") means the EPA uniform
  national form, including any subsequent

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14156
Federal  Register / Vol. 48. No. 64 / Friday.  April 1.  1983 / Rules and Regulations
additions, revisions, or modifications for
the reporting of self-monitoring results
by permittees. DMRs must be used by
"approved States" as well as by EPA.
EPA will supply DMRs to any approved
State upon request. The EPA national
forms may be modified to substitute the
State Agency name, address, logo, and
other similar information, as
appropriate, in place of EPA's.
  DMR means "Discharge Monitoring
Report."
  Draft permit means a document
prepared under § 124.6 indicating the
Director's tentative decision to issue or
deny, modify, revoke and reissue,
terminate, or reissue a "permit." A
notice of intent to terminate a permit.
and a notice of intent to deny a permit,
as discussed in § 124.5, are types of
"draft permits." A denial of a request for
modification, revocation and reissuance,
or termination, as discussed in § 124.5, is
not a "draft permit." A "proposed
permit" is not a "draft permit."
  Effluent limitation means any
restriction imposed by the Director on
quantities, discharge rates, and
concentrations of "pollutants" which are
"discharged" from "point sources" into
"waters of the United States," the
waters of the "contiguous zone," or the
ocean.
  Effluent limitations guidelines means
a regulation published by the
Administrator under section 304(b) of
CWA to adopt or revise "effluent
limitations."
  Environmental Protection Agency
("EPA") means the United States
Environmental Protection Agency.
  EPA means the United States
"Environmental Protection Agency."
  Facility or activity means any NPDES
"point source" or any other facility or
activity (including land or
appurtenances thereto) that is subject to
regulation under the NPDES program.
  General permit means an NPDES
"permit" issued under § 122.28
authorizing a category of discharges
under the CWA within a geographical
area.
  Hazardous substance means any
substance designated under 40 CFR Part
116 pursuant to section 311 of CWA.
  Indirect discharger means a
nondomestic discharger introducing
"pollutants" to a "publicly owned
treatment works."
  Interstate agency means an agency of
two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as determined
and approved by the Administrator
under the CWA and regulations.
                           Major facility means any NPDES
                         "facility or activity" classified as such
                         by the Regional Administrator, or, in the
                         case of "approved State programs," the
                         Regional Administrator in conjunction
                         with the Sta'te Director.
                           Maximum daily discharge limitation
                         means the highest allowable "daily
                         discharge."
                           Municipality means a city, town,
                         borough, county, parish, district,
                         association, or other public body
                         created by or under State law and
                         having jurisdiction over disposal of
                         sewage, industrial wastes, or other
                         wastes, or an Indian tribe or an
                         authorized Indian tribal organization, or
                         a designated and approved managment
                         agency under section 208 of CWA.
                           National Pollutant Discharge
                         Elimination System (NPDES) means the
                         national program for issuing, modifying,
                         revoking and reissuing, terminating,
                         monitoring and enforcing permits, and
                         imposing and enforcing pretreatment
                         requirements, under sections 307, 402,
                         318, and 405 of CWA. The term includes
                         an "approved program."
                           New discharger means any building,
                         structure, facility, or installation:
                           (a) From which there is or may be a
                         new or additional "discharge of
                         pollutants" at a "site" at which on
                         October 18.1972 it had never discharged
                         pollutants: and
                           (b) Which has never received a finally
                         effective NPDES "permit" for discharges
                         at that site; and
                           (c) Which is not a "new source."
                           This definition includes an "indirect
                         discharger" which commences
                         discharging into  "waters of the United
                         States." It also includes any existing
                         mobile point source, such as an offshore
                         oil drilling rig, seafood processing rig,
                         seafood processing vessel, or aggregate
                         plant, that begins discharging at a
                         location for which it does not have an
                         existing permit. [See Note 2 of this
                         section.]
                           New source means any building,
                         structure, facility, or installation from
                         which there is or may be a "discharge  of
                         pollutants," the construction of which
                         commenced:
                           (a) After promulgation of standards of
                         performance under section 306 of CWA
                         which are applicable to such source, or
                           (b) After proposal of standards of
                         performance in accordance with section
                         306 of CWA which are applicable to
                         such source, but only if the standards
                         are promulgated in accordance with
                         section 306 within 120 days of their
                         proposal.
                           NPDES means "National Pollutant
                         Discharge Elimination System."
                           Owner or operator means the owner
                         or operator of any "facility or activity"
 subject to regulation under the NPDES
 program.
   Permit means-an authorization,
 license, or equivalent control document
 issued by EPA or an "approved State" to
 implement the requirements of this Part
 and Parts 123 and 124. "Permit" includes
 an NPDES "general permit" (§ 122.28).
 Permit does not include any permit
 which has not yet been the subject of
 final agency action, such as a "draft
 permit" or a "proposed permit."
   Person means an individual,
 association, partnership, corporation,
 municipality. State or Federal agency, or
 an agent or employee thereof.
   Point source means any discernible,
 confined, and discrete conveyance,
 including but not limited to any pipe.
 ditch, channel, tunnel, conduit, well,
 discrete fissure, container, rolling stock.
 concentrated animal feeding operation.
 vessel, or other floating craft from which
 pollutants are or may be discharged. ..
 This term does not include return flows
 from irrigated agriculture.
   Pollutant means dredged spoil, solid
 waste, incinerator residue, filter
 backwash, sewage, garbage, sewage
 sludge, munitions, chemical wastes,
 biological materials, radioactive
 materials (except those regulated under
 the Atomic Energy Act of 1954, as
 amended (42 U.S.C. 2011 ei seq.}}, heat,
 wrecked or discarded equipment, rock.
 sand, cellar dirt and industrial,
 municipal, and agricultural waste
 discharged into water. It does not mean:
   (a) Sewage from vessels: or
   (b) Water, gas, or other material
 which is injected into a well to facilitate
 production of oil or gas, or water
 derived in association with oil and gas
. production and disposed of in a well, if
 the well used either to facilitate
 production or for disposal purposes is
 approved by authority of the State in
 which the well is located, and if the
 Slate determines that the injection or
 disposal will not result in the
 degradation of ground or surface water
 resources.
   [Note.—Radioactive materials covered by
 the Atomic Energy Act are those
 encompassed in its definition of source.
 byproduct, or special nuclear materials.
 Examples of materials not covered include
 radium and accelerator-produced isotopes.
 See Train v. Colorado Public Interest
 Research Group, Inc.. 426 U.S. 1 (1976).]

   POTW means "publicly owned
 treatment works."
   Primary industry category means any
 industry category listed in the NRDC
 settlement agreement (Natural
 Resources Defense Council et al. v.
 Train. 8 E.R.C. 2120 (D.D.C. 1976).

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              Federal Register  /  Vol. 48.  No. 64 / Friday,  April i.  1983 / Rules and Regulations	14157
modified 12 E.R.C. 1833 (D.D.C. 1979]):
also listed in Appendix A of Part 122.
  Privately owned treatment works
means any device or system which is (a)
used to treat wastes from any facility
whose operator is not the operator of the
treatment works and (b) not a "POTW."
  Process wastewater means any water
which, during manufacturing or
processing, comes into direct contact
with or results from the production or
use of any raw material, intermediate
product finished product byproduct or
waste product  •
  Proposed permit means a State
NPDES "permit" prepared after the
close of the public comment period (and.
when applicable, any public hearing and
administrative appeals) which is sent to
EPA for review before final issuance by
the State. A "proposed permit" is not a
"draft permit"
  Publicly owned treatment works
("POTW*') means any device or system
used in the treatment (including
recycling and reclamation) of municipal
sewage or industrial wastes of a liquid
nature which is owned by a "State" or
"municipality." This definition includes
sewers, pipes, or other conveyances
only if they convey wastewater to a
POTW providing treatment
  Recommencing discharger means a  —
source which recommences discharge   •
after terminating operations.
  Regional Administrator means the
 Regional Administrator of the
 appropriate Regional Office of the
 Environmental Protection Agency or the
 authorized representative of the
 Regional Administrator.
   Schedule of compliance means a
 schedule of remedial measures included
 in  a "permit", including an enforceable •
 sequence of interim requirements (for
 example, actions, operations, or
 milestone events) leading to compliance
 with the CWA and regulations.
   Secondary industry category means
 any industry category which is not a
 "primary industry category."
   Secretary means the Secretary of the
 Army, acting through the Chief of
 Engineers.
   Sewage from vessels means human
 body wastes and the wastes from toilets
 and other receptacles intended to
 receive or retain body wastes that are
 discharged from vessels and regulated
 under section 312 of CWA. except that
 with respect to commercial vessels on
 the Great Lakes this term includes
 graywater. For the purposes of this
 definition, "graywater" means galley.
 bath, and shower water.
    Sewage sludge means the solids,
 residues,  and precipitate separated from
 or created in sewage by the unit
 processes of a  "publicly owned
treatment works," "Sewage" as used in
this definition means any wastes,
including wastes from humans.
households, commercial establishments.
industries, and storm water runoff, that
are discharged to or otherwise enter a
publicly owned treatment works.
  Site means the land or water area
where any "facility or activity" is
physically located or conducted,
including adjacent land used in
connection with the facility or activity.
  State means any of the 50 States, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands. American Samoa, and
the Trust Territory of the Pacific Islands.
  State Director means the chief
administrative officer of any State or
interstate agency operating an
"approved program." or the delegated
representative of the State Director. If
responsibility is divided among two or
more State or interstate agencies. "State
Director" means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made.
   State/EPA Agreement means an
agreement between the Regional
Administrator and the State which
coordinates EPA and State activities.
responsibilities and programs including
those under the CWA programs.
   Total dissolved solids means the total
 dissolved (filterable) solids as
 determined by use of the method
 specified in 40 CFR Part 138.
   Toxic pollutant means any pollutant
 listed as toxic under section 307(a)(l) of
 CWA.
   Variance means any mechanism or
 provision under sections 301 or 316 of
 CWA or under 40 CFR Part 125. or in the
 applicable "effluent limitations
 guidelines" which allows modification
 to or waiverof the generally applicable
 effluent limitation requirements or time
 deadlines of CWA. This includes
 provisions which allow the
 establishment of alternative limitations
 based on fundamentally different
 factors or on sections 301(c). 301(g).
 301(h), 301(i), or 316(a) of CWA.
    Waters of the United States or waters
 of the U£. means:
    (a) All waters which are currently
 used, were used in the past, or may be
 susceptible to use in interstate or foreign
 commerce, including all waters  which
 are subject to the ebb and Dow of the
 tide:
    (b) All interstate waters, including
 interstate "wetlands:"
    (c) All other waters such as intrastate
 lakes, rivers, streams (including
 intermittent streams), mudflats.
 sandflats. "wetlands," sloughs,  prairie
potholes, wet meadows, playa lakes, or
natural ponds the use, degradation, or
destruction of which would affect or
could affect-interstate or foreign
commerce including any such waters:
  (1) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes;
  (2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
  (3) Which are used or could be used  '
for industrial purposes by industries in
interstate commerce;
  (d) All impoundments of waters
otherwise defined as waters  of the
United States under this definition;
  (e) Tributaries of waters identified in
paragraphs (a)-(d) of this definition;
  (f) The territorial sea: and
  (g) "Wetlands" adjacent to waters
(other than waters that are themselves
wetlands) identified in paragraphs (a)-
(f) of this definition.
Waste treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of CWA (other
 than cooling ponds as defined in 40 CFR
 § 423.11(m) which also meet the criteria
 of this definition) are not waters of the
United States. This exclusion appb'es
 only to manmade bodies of water which
 neither were originally created in waters
 of the United States  (such as disposal
 area in wetlands) nor resulted from the
 impoundment of waters of the United
 States. [See Note 1 of this section.]
   Wetlands means those areas that are
 inundated or saturated by surface or
 groundwater at a frequency and
 duration sufficient to support, and'that
 under normal circumstances do support.
 a prevalence of vegetation typically
* adapted for life in saturated soil
 conditions. Wetlands generally include
 swamps, marshes, bogs, and similar
 areas.
   [Note 1.—At 45 FR 48620. July 21.1980. the
 Environmental Protection Agency suspended
 until further notice in { 122.2. in the definition
 of "Waters of the United States." This
 revision continues that suspension.)
   (Note 2.—At 45 FR 68391. Oct. 15.1980.
 effective Oct 15.1980. the Environmental
 Protection Agency suspended until further
 notice the NPDES "new discharger"
 definition as it applies to offshore mobile
  drilling ngs operating  in offshore areas
  adjacent to the Gulf Coast. Atlantic Coast.
  California and Alaska, except  for the Flower
  Garden area in the Gulf of Mexico and other
  areas identified as environmentally sensitive
  by the Bureau of Land Management This
  revision continues that suspension.]

  § 122.3 Exclusions.
    The following discharges do not
  require NPDES permits:

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14158         Federal Register / Vol. 48, No. 64 / Friday. April  1. 1983 / Rules  and  Regulations
  (a) Any discharge of sewage from
vessels, effluent from properly
functioning marine engines, laundry,
shower, and galley sink wastes, or any
other discharge incidental to the normal
operation of a vessel. This exclusion
does not apply to rubbish, trash.
garbage, or other such materials
discharged overboard; nor to other
discharges when the vessel is operating
in a capacity other than as a means of
transportation such as when used as an
energy or mining facility, a storage
facility or a seafood processing facility,
or when secured to a storage facility or
a seafood processing facility, or when
secured to the bed of the  ocean.
contiguous zone or waters of the
United States for the purpose of mineral
or oil exploration or development.
  (b) Discharges of dredged or fill
material into waters of the United States
which are regulated under section 404 of
CWA.
  (c) The introduction of sewage,
industrial wastes or other pollutants into
publicly owned treatment works by
indirect dischargers. Plans or
agreements to switch to this method of
disposal in the future do not relieve
dischargers of the obligation to have and
comply with permits until all discharges
of pollutants to waters of the United
States are eliminated. (See also
§ 122.47(b)). This exclusion does not
apply to the introduction of pollutants to
privately owned treatment works or to
other discharges through pipes, sewers,
or other conveyances owned by a State,
municipality, or other party not leading
to treatment works.
  (d) Any discharge in compliance with
the instructions of an On-Scene
Coordinator pursuant to 40  CFR Part
1510 (The National Oil and  Hazardous .
Substances Pollution Plan) or 33 CFR
153.10(e) (Pollution by Oil and
Hazardous Substances).
  (e) Any introduction of pollutants
from non point-source agricultural and
silviculture! activities, including runoff
from orchards, cultivated crops.
pastures, range lands, and forest lands.
but not discharges from concentrated
animal feeding operations as defined in
§ 122.23, discharges from concentrated
aquatic animal production facilities as
defined in § 122.24, discharges to
aquaculture projects as defined in
§ 122.25, and discharges from
silvicultural point sources as defined in
§ 122.27.
  (f) Return flows from irrigated
agriculture.
  (g) Discharges into a privately owned
treatment works, except as the Director
may otherwise require under
§ 122.44(m).
§ 122.4 Prohibitions (applicable to State
NPDES programs, see f 123J25).
 . No permit may be issued:
  (aj When the conditions of the permit
do not provide for compliance with the
applicable requirements of CWA, or
regulations promulgated under CWA;
  (b) When the applicant is required to
obtain a State or other appropriate
certification under section 401 of CWA
and § 124.53 and that certification has
not been obtained or waived;
  (c) By the State Director where the
Regional Administrator has objected to
issuance of the permit under § 123.44;
  (d) When the imposition of conditions
cannot ensure compliance with the
applicable water quality requirements of
all affected States;
  (e) When, in the judgment of the
Secretary, anchorage and navigation in
or on any of the waters of the United
States would be substantially impaired
by the discharge;
  (f) For the discharge of any
radiological, chemical, or biological
warfare agent or high-level radioactive
waste;
  (g) For any discharge inconsistent
with a plan or plan amendment
approved under section 208(b) of CWA;
  (h) For any discharge to the territorial
sea,  the waters of the  contiguous zone,
or the oceans in the following
circumstances:
  (1) Before the promulgation of
guidelines under section 403(c) of CWA
(for determining degradation of  the
waters of the territorial seas, the
contiguous zone, and the oceans) unless
the Director determines permit issuance
to be in the public interest: or
  (2) After promulgation of guidelines
under section (403(c) of CWA. when
insufficient information exists to make a
reasonable judgment whether the
discharge complies with them.
  (i) To a new source  or a new
discharger, if the discharge from its
construction or operation will cause of
contribute to the violation of water
quality standards. The owner or
operator of a new source or new
discharger proposing to discharge into a
water segment which  does not meet
applicable water quality standards or is
not expected to meet those standards
even after the application of the effluent
limitations required by section
301(b)(l)(A) and 301(b)(l)(B) of CWA,
and for which the State or interstate
agency has performed a pollutants load
allocation for the pollutant to be
discharged, must demonstrate, before
the close of the puublic comment period.
that:
  (1) There are sufficient remaining
pollutant load allocations to allow for
the descharge: and
  (2) The existing dischargers into that
segment are subject to compliance
schedules designed to bring the segment
into compliance with applicable water
quality standards.'

§122.5 Effect of a permit
  (a) Applicable to State programs, see
§ 123.25. Except for any toxic effluent
standards and prohibitions imposed
under section 307 of the CWA,
compliance with a permit during its term
constitutes compliance, for purposes of
enforcement, with section 301, 302, 306,
307, 318, 403, and 405 of CWA. However,
a permit may be modified, revoked and
reissued, or terminated during its term
for cause as set forth in § § 122.62 and
122.64.
  (b) Applicable to State programs. See
§ 123.25.. The issuance of a permit does
not convey any property rights of any
sort, or any exclusive privilege.
  (c) The issuance of a permit does not
authorize any injury to persons or
property or invasion  of other private
rights, or any infringement of State or
local law or regulations.

§ 122.6.  Continuation of expiring permits.
  (a) EPA permits. When EPA is the
permit-issuing authority, the conditions
of an expired permit continue in force
under 5 U.S.C. 558(c) until the effective
date of a new permit (see § 124.15) if:
  (1) The permittee has submitted a
timely application under § 122.21 which
is a complete (under  § 122.21(e])
application for a new permit; and
  (2) The Regional Administrator,
through no fault of the permittee does
not issue a new permit with an effective
date under § 124.15 on or before the
expiration date of the previous permit'
(for example, when issuance is
impracticable due to time or resource
constraints).
  (b) Effect Permits continued under
this section remain fully effectively and
enforceable.
  (c) Enforcement. When the permittee
is no: in compliance with the conditions
of the expiring or  expired permit the
Regional Administrator may choose to
do any or all of the following:
  (1) Initiate enforcement action based
upon the permit which has been
continued;
  (2) Issue a notice of intent to deny the
new permit under § 124.6. If the  permit is
denied, the owner or oprator would then
be required to cease  the activities
authorized by the continued permit or be
subject to enforcement action for
operating without a permit;
  ' (3) Issue a new permit under Part 124
with appropriate conditions; or

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              Federal Register / Vol. 48. No. 64 / Friday.  April 1. 1983  /  Rules and Regulations        14159
  (4) Take other actions authorized by
these regulations.
  (d) State continuation. (1) An EPA-
issued permit does not continue in force
beyond its expiration date under
Federal law if at that time a State is the
permitting authority. States authorized
to administer the NPDES program may
continue either EPA or State-issued
permits until the effective date of the
new permits, if State law allows.
Otherwise, the facility or activity is
operating without a permit from the  time
of expiration of the old permit to the
effective date of the State-issued new
permit.

§ 122.7  Confidentiality of information.
  (a) In accordance with 40 CFR Part 2.
any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter.
Any such claim must be asserted at  the
time of submission in the manner
prescribed on the application form or
instructions or. in the case of other
submissions,-by stamping  the words
"confidential business information" on
each page containing such information.
If no claim is made at the time 'of
submission, EPA may make the
information available to the public
without further notice. If a claim is
asserted, the information will be treated
in accordance with the procedures in 40
CFR Part 2 (Public Information).
  (b) Applicable to State programs,  see
§ 123.25. Claims of confidentiality for the
following information will be denied:
  (1) The name and address of any
permit applicant or permittee:
  (2) Permit applications, permits, and
effluent data.
  (c) Applicable to State programs, see
§12335. Information required by NPDES
application forms provided by the
Director under § 122.21 may not be
claimed confidential This includes
information submitted on the forms
themselves and any attachments used to
supply information required by the
forms.

Subpart B—Permit Application and
Special NPDES Program Requirements

§ 12131  Application for a permit  .
(applicable to State programs, see
§ 123J5).
  (a) Duty to apply. Any person who
discharges or proposes to  discharge
pollutants and who does not have an
effective permit except persons covered
by general permits under § 122.28,
excluded under § 122.3. or a user of  a
privately owned treatment works unless
the Director requires otherwise under
§ 122.44(m). shall submit a complete
application (which shall include a BMP
program if necessary under 40 CFR
125.102) to the Director in accordance
with this section and Part 124.
  (b) Who applies?'When a facility or
activity is owned by one person but is
operated by another person, it is the
operator's duty to obtain a permit.
  (c) Time to apply. Any person
proposing a new discharge shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Persons proposing a new discharge are
encouraged to submit their applications
well in advance of the 180 day
                                        requirement to avoid delay. See also
                                        paragraph (k) of this section.
                                          (d) Duty.to reapply. (1) Any POTW
                                        with a currently effective permit shall
                                        submit a new application at least 180
                                        days before the expiration date of the
                                        existing permit, unless permission for a
                                        later date has been granted by the
                                        Director. (The Director shall not grant
                                        permission for applications to be
                                        submitted later than the expiration date
                                        of the existing permit.)   .
                                          (2) All other permittees with currently
                                        effective permits shall submit a new
                                        application in accordance with the table
                                        below:
Permit expires
On or Mfex* Nov. 30. 1980 	
Dec. 1. 1960-May 31. 1961 	
On or (tier June 1. 1991 	
Application reouiremeni
(1) M apptaani has submitted new application before Apr.
« 30. 1980. new application ' a not requved.
(2) /( applicant has not suorranea new application before
Apr. 30. 1980. applicant mm! suomt new application. '.
N«w 9ppJieahQn > ., ._ 	


Deadline tor submission
Noi applicable
Date on wncn permit expires '
90 oays before permit expires.'*
180 days Setore ' permit expires.
  •The new aspiration recjrements are sol lonn in paragraphs If). (9). and fh) iho section. Applicants lor EPA-nsuw permits'
must use Forms I and eimer 26 or 2e ol EPA's consouiaied permit application forms 10 apply under those sections
  "-Aixwcsmj may reoues: additional tune lor the submission ot mormanon reoured oy paragraphs 
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 14160        Federal Register /  Vol. 48. No. 64 / Friday.  April 1,  1983 / Rules and Regulations
 hazardous waste treatment, storage, or
 disposal facilities; each well where
 fluids from the facility are injected
 underground; and those wells, springs,
 other surface water bodies, and drinking
 water wells listed in public records or
 otherwise known to the applicant in the
 map area.
   (8) A brief description of the nature of
 the business.
   (g) Application requirements for
 existing manufacturing, commercial,
 mining, and silvicultural dischargers.
 Existing manufacturing, commercial.
 mining, and silvicultural dischargers
 applying for  NPDES permits shail
 provide the following information to the
 Director, using application forms
 provided by  the Director
   (1) Outfall location. The latitude and
 longitude to the nearest 15 seconds and
 the name of the receiving water.
   (2) Line Drawing. A line drawing of
 the water flow through the facility with
 a water balance, showing operations
 contributing wastewater to the effluent
 and treatment units. Similar processes,
 operations, or production areas may be
 indicated as  a single unit, labeled to
 correspond to the more detailed
 identification under paragraph (g)(3) of
 this section. The water balance must
 show approximate average flows at
 intake and discharge points  and
 between units, including treatment units.
 If a water balance cannot be determined
 (for example, for certain mining
 activities), the applicant may provide
 instead a pictorial description of the
 nature and amount of any sources of
 water and any collection and treatment
 measures.
  (3) A verage flows and treatment. A
 narrative identification of each type of
 process, operation, or production area
 which contributes wastewater to the •
 effluent for each outfall, including
 process wastewater, cooling water, and
 stormwater runoff; the average flow
 which each process contributes; and a
 description of the treatment  the
 wastewater receives, including the
 ultimate disposal of any solid or fluid
 wastes other than by discharge.
 Processes, operations or production
 areas may be described in general terms
 (for example, "dye-making reactor",
 "distillation tower".) For a privately
 owned treatment works, this
 information shall include the identity of
 each user of the treatment works.
  (4) Intermittent flows. If any of the
 discharges described in paragraph (g)(3)
 of this section are intermittent or
seasonal, a description of the frequency,
duration and  flow rate of each discharge
occurrence (except for stormwater
runoff, spillage  or leaks).
   (5) Maximum production. If an
 effluent guideline promulgated under
 section 304 of CWA applies to the
 applicant and is expressed in terms of
 production'(or other measure of
 operation), a reasonable measure of the
 applicant's actual production reported in
 the units used in the applicable effluent
 guideline. The reported measure must
 reflect the actual production of the
 facility as required by § 122.45(b)(2).
   (6) Improvements. If the applicant is
 subject to any present requirements or
 compliance schedules for construction,
 upgrading or operation of waste
 treatment equipment, an identification
 of the abatement requirement,  a
 description of the abatement project.
 and a listing of the required and
 projected final compliance dates.
   (7) Effluent characteristics.
 Information on the discharge of
 pollutants specified in this paragraph.
 When "quantitative data" for a pollutant
 is required, the applicant must  collect a
 sample of effluent and analyze it for the
 pollutant in accordance with analytical
 methods approved under 40 CFR Part
 136. When no analytical method is
 approved the applicant may use any
 suitable method but must provide a
 description of the method. When an
 applicant has two or more outfalls with
 substantially identical effluents, the
 Director may allow the applicant to test
 only one outfall and report that the
 quantitative data also applies to the
 substantially identical outfalls. The
 requirements in paragraphs (g}(7) (iii)
 and (iv) of this section that an applicant
 must provide quantitative data for
 certain pollutants known or believed to
 be present does not apply to pollutants
 present in a discharge solely  as the
 result of their presence in intake water
 however, an applicant must report such
 pollutants as present Grab samples
 must be used for pH, temperature.
 cyanide, total phenols, residual chlorine.
 oil and grease, and fecal coliform. For
 all other pollutants, 24-hour composite
 samples must be used.
 An applicant is expected to "know or
 have reason to believe" that a pollutant
 is present in an effluent based on an
 evaluation of the expected use,
 production; or storage of the pollutant,
 or on any previous analyses for the
 pollutant (For example, any pesticide
 manufactured by a facility may be
 expected to be present in contaminated
 storm water runoff from the facility.)
   (i)(A) Every applicant must report
 quantitative data for every outfall for
 the following pollutants:
Biochemial  Oxygen Demand (BOD,)
 Chemical Oxygen Demand
Total Organic Carbon
 Total Suspended Solids
 Ammonia (as N)
 Temperature (both winter and summer)
 pH
   (B) At the applicant's request the
 Director may wdive the reporting
 requirements for one or more of the
 pollutants listed in paragraph (g)(7)(i)(A)
 of this section.
   (ii) Each applicant with processes in
 one or more primary industry category
 (see Appendix A to Part 122)
 contributing to a discharge must report
•quantitative data for the following
 pollutants in each outfall containing
 process wastewater:
   (A) The organic toxic pollutants in the
 fractions designated in Table I of
 Appendix D of this Part for the
 applicant's industrial category or
 categories unless the applicant qualifies
 as a small business under paragraph
 (d)(8) of this section. Table II of
 Appendix D of this Part lists the organic
 toxic pollutants in each fraction. The
 fractions result from the sample
 preparation required by the analytical
 procedure which uses gas
 chrcmotography/mass spectrometry. A
 determination that an applicant  falls
 within a particular industrial category
 for the purposes of selecting fractions
 for testing is not conclusive as to the
 applicant's inclusion in that category for
 any other purposes. [See Notes 2, 3. and
 4 of this section.]
   (B) The pollutants listed in Table III of
 Appendix D of this Part (the toxic
 metals, cyanide, and total phenols).
   (iii) Each applicant must report for
 each outfall quantitative data for the
 following pollutants, if the applicant
 knows or has reason to believe that the
 pollutant is discharged  from the  outfall:
   (A) All pollutants listed in Table n or
 Table III of Appendix D of this Part (the
 toxic pollutants) for which quantitative
 data is not otherwise required under
 paragraph (g)(7)[ii) of this section except
 that an applicant qualifying as a small
 business under paragraph (g)(8) of this
 section is not required to analyze for the
 pollutants, listed in Table II cf Appendix
 D  of this Part (the organic toxic
 pollutants).
   (B) All pollutants in Table IV of
 Appendix D of this Part (certain
 conventional and nonconventional
 pollutants).
   (iv) Each applicant must indicate
 whether it knows or has reason to
 believe that any of the pollutants in
Table V of Appendix D of this Part
 (certain hazardous substances and
 asbestos) is discharged from each
 outfall. For every pollutant expected to
 be discharged, the applicant must briefly
 describe the reasons the pollutant is

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              Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations	14161
expected to be discharged, and report
any quantitative data it has for any
pollutant
  (v) Each applicant must report
qualitative data, generated using a
screening procedure not calibrated with
analytical standards, for 2.3,7.8-
tetrachlorodibenzo-p-dioxin (TCDD) if
it:
  (A) Uses or manufactures 2.4.5-
trichlorophenoxy acetic acid (2,4,5,-T); 2-
(2,4.5-trichlorophenoxy) propanoic acid
(Silvex, 2.4.5.-TP); 2-(2.4,5-
trichlorophenoxy) ethyl, 2.2-
dichloropropionate (Erbon): O.O-
d:mediylO-(2.4.5-trichlorophenyl)
phosphorothioate (Ronnel): 2,4.5-
tnchlorophenol (TCP); or
hexachlorophene (HCP): or
  (B) Knows or has reason to believe
that TCDD is or may be present in an
effluent.
  (8) Small business exemption. An
applicant which qualifies as a small
business under one of the following
criteria is exempt from the requirements
in paragraphs (g)(7)(ii)(A) or {g)(7)(iii)(A)
of this section to submit quantitative
data for the pollutants listed in Table II
of Appendix D of this Part (the organic
toxic pollutants):
   (i) For coal mines, a probable total
annual production of less than 100.000
tons per year.
   (ii) For all other applicants, gross total
annual sales averaging less than
SlOO.OOO per year (in second quarter
i960 dollars).
   (9) Used or manufactured toxics. A
listing of any toxic pollutant which the
applicant does or expects that it will .
during the next 5 years use or
manufacture as an intermediate or final
product or byproduct.
   (10) Potential discharges. A
description of the expected levels of and
the reasons for any discharges of
pollutants which the applicant knows or
has reason to believe will exceed .two
times the values reported in paragraph
(g)(7) of this section over the next 5
years.
   (11) Biological toxicity tests. An
identification of any biological toxicity
tests which the applicant knows or has
reason to believe have been made
within the last 3 years on any of the
applicant's discharges or on a receiving
 water in relation to a discharge.
   (12) Contract analyses. If a contract
 laboratory or consulting firm performed
 any of the analyses required by
 paragraph (g)(7) of this section, the
 identity of each laboratory or firm and
 the analyses performed.
   (13) Additional information. In
 addition to the information reported on
 the application form, applicants shall
 provide to the Director, at his or her
request, such other information as the
Director may reasonably require to
assess the discharges of the facility and
to determine whether to issue an NPDES
permit The additional information may
include  additional quantitative data and
bioassays to assess the relative toxicity
of discharges to aquatic life and
requirements to determine the cause of
the toxicity.
  (h) Application requirements for new
and existing concentrated animal
feeding operations and aquatic animal
production facilities. New and existing
concentrated animal feeding operations
(defined in § 122.23) and concentrated
aquazie animal production facilities
(defined in § 122.24) shall provide the
following information-to'the Director:
using the application form provided by
the Director
  (1) For concentrated animal feeding
operations;
  (i) The type  and  number of-animals in
open  confinement and housed under
roof.
  (ii) The number of acres used for
confinement feeding.
  (iii) The design basis for the runoff
diversion and control system, if one
exists.-including the number of acres of
contributing drainage, the storage
capacity, and  the design safety factor.
   (2) For concentrated aquatic animal
production facilities:
   (i) The maximum daily and average
monthly flow  from each outfall.
   (ii) The number  of ponds, raceways.
and similar structures.
   (iii) The name of the receiving  water
 and the source of intake water.
   (tv) For each species of aquatic
 animals, the total yearly and maximum
 harvestable weight
   (v) The calendar month of maximum
 feeding and the total mass of food fed
 during  that month.
   (i) Application requirements for new
 and existing POTWs. [Reserved.]
   (j) Application requirements far new
 sources and new dischargers.
 [Reserved.]
   (k) Special provisions for applications
front new sources. (1) The owner or
 operator of any facility which may be a
 new source(as defined in § 122.2) and
 which  is located in a State without an
 approved NPDES  program must  comply
 with the provisions of this paragaraph.
   (2)(i) Before beginning any on-site
 construction as defined in § 12&29. the
 owner or operator of any facility which
 may be a new source must submit
 information to the Regional
 Administrator so  that he or she can
 determine if the facility is a new source.
 The Regional Administrator may request
 any additional information needed to
determine whether the facility is a new
source.
   (ii) The Regional Administrator shall
make an initial determination whether
the facility is a new source within 30
days of receiving all necessary
information under paragraph (k)(2)(i) of
this section.
   (3) The Regional Administrator shall
issue a public notice in accordance with
 § 124.10 of the new source determination
under paragraph (k)(2) of this section. If
the Regional Administrator has
determined that the facility is a new
source, the notice shall state that the
applicant must comply with the
environmental review requirements of
40 CFR 6.600 et seq.
   (4) Any interested person may
 challenge the Regional Administrator's
 initial new source determination by
 requesting an evidentiary hearing under"
 Subpart E of Part 124  within 30 days of
 issuance of the public notice of the
 initial determination.  The Regional
 Administrator may defer the evidentiary
 hearing on the determination until after
 a final permit decision is made, and
 consolidate the hearing on the
 determination with any hearing on the
 permit.
   (1) Variance requests by non-POTlVs.
 A discharger which is not a publicly
 owned treatment works (POTW) may
 request a variance from otherwise
 applicable effluent limitations under any
 of the following statutory or regulatory
 provisions within the times specified in
 this paragraph:
   (1) Fundamentally different factors. A
 request for a variance based on the
 presence of "fundamentally different
 factors" from those on which the
.effluent limitations guideline was based.
 shall "be made by the close of the public
 comment period under § 124.10. The
 request shall explain how the
 requirements of § 124.13 and 40 CFR Part
 125. Subpart D have been met.
    (2) Non-conventional pollutants.  A
• request for a' variance from the BAT
 requirements for CWA section
  301(b)(2)(F) pollutants (commonly called
  "non-conventional" pollutants) pursuant
  to section 301(c) of CWA because of the
  economic capability  of the owner or
  operator, or pursuant to section 301 (g) of
  CWA because of certain environmental
  considerations, when those
  requirements were based on effluent
  limitation guidelines, must be made by:
    (i) Submitting an initial request to the
  Regional Administrator, as well as to
  the State Director if applicable, stating
  the name of the discharger, the permit
  number, the outfall number(s). the
  applicable effluent guideline, and
  whether the discharger is requesting a

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 14162
Federal Register /  Vol. 48, No.  64 / Friday,  April 1, 1983  / Rules  and  Regulations
 section 301(c) or section 301 (g)
 modification or both. This request must
 have been filed not later than:
   (A) September 25.1978, for a pollutant
 which is controlled by a BAT effluent
 limitation guideline promulgated before
 December 27,1977; or
   (B) 270 days after promulgation of an
 applicable effluent limitation guideline
 for guidelines promulgated after
 December 27,1977; and
   (ii) Submitting a completed request no
 later than the close of the public
 comment period under § 124.10
 demonstrating that the requirements of
 § 124.13 and the applicable requirements
 of Part 125 have been met.
   (iii) Requests for variance  from
 effluent limitations not based on effluent
 limitation guidelines need only comply
 with paragraph (l)(2)(ii) of this section
 and need not be preceded by an initial
 request under paragraph (l)(2)(i) of this
 section.
   (3) Delay in construction ofPOTW.
 An extension under CWA section
 301[i)[2] of the statutory deadlines in
 sections 301(b)(l)(A) or  (b)(l)(C) of
 CWA based on delay in completion of a
 POTW into which the source is to
 discharge must have been requested on
 or before June 26,1978, or 180 days after
 the relevant POTW requested an
 extension under paragraph (m)(2) of this
 section, whichever is later, but in no
 event may this date have been later than
 December 25,1978, The  request shall
 explain how the requirements of 40 CFR
 Part 125, Subpart ] have been met.
   (4) Innovative technology. An
 extension under CWA section 301 (k)
 from the statutory deadline of section
 301(b](2)(A) for best available
 technology based on the use of
 innovative technology may be requested
 no later than the close of the public
 comment period under § 124.10 for the
 discharger's initial permit requiring
 compliance with section 301(b](2](A).
 The request shall demonstrate that the
 requirements of § 124.13 and Part 125,
•Subpart C have been met
   (5) Water quality related effluent
 limitations. A modification under
 section 302(b)(2) of requirements under
 section 302(a) for achieving water
 quality related effluent limitations may
 be requested no later than the close of
 the public comment period under
 § 124.10 on the permit from which the
 modification is sought
  (6] Thermal discharges. A variance
 under CWA section 316(a} for the
 thermal component of any discharge
 must be filed with a timely application
 for a permit under this section, except
 that if thermal effluent limitations are
 established under CWA Section
 402(a)(l) or are based on water quality
                          standards the request for a variance
                          may be filed by the close of the public
                          comment period under 5 124.10. A copy
                          of the request as required under 40 CFR
                          Part 125, Subpart H. shall be sent
                          simultaneously to the appropriate State
                          or interstate certifying agency as
                          required under 40 CFR Part 125. (See
                          § 124.65 for special procedures for
                          section 316(a) thermal variances.)
                            (m] Variance requests byPOTWs. A
                          discharger which is a publicly owned
                          treatment works (POTW] may request  a
                          variance from otherwise applicable
                          effluent limitations under any of the
                          following statutory provisions as
                          specified in this paragraph:
                            (1) Discharges into marine  waters. A
                          request for a modification under CWA
                          section 301(h) of requirements of CWA
                          section 301(b)(l)(B) for discharges into
                          marine waters must be filed in
                          accordance with the  requirements of 40
                          CFR Part 125. Subpart G.
                            (2) Delay in construction. An
                          extension under CWA section 301(i)(l]
                          of the statutory deadlines in CWA
                          section 301(b](l)(B] or (b)(l)(C) based on
                          delay in the construction of the POTW
                          must have been requested on or before
                          June 26,1978.
                            (3) Water quality based effluent
                          limitation. A modification under CWA
                          section 302[b)(2) of the requirements
                          under section 302(a)  for achieving water
                          quality based effluent limitations shall
                          be requested no later than the dose of
                          the public comment period under
                          § 124.10 on the permit from which the
                          modification is sought.
                            (n) Expedited variance procedures
                          and time extensions. (1)
                          Notwithstanding the time requirements
                          in paragraphs (1) and (m) of this section,
                          the Director may notify a permit
                          applicant before a draft permit is issued
                          under § 124.6 that the draft permit will
                          likely contain limitations which are
                          eligible for variances. In the notice the
                          Director may require the applicant as a
                          condition of consideration of  any
                          potential variance request to  submit a
                          request explaining how the requirements
                          of 40 CFR Part 125 applicable to the
                          variance have been met and may
                          require its submission within  a specified
                          reasonable time after receipt  of the
                          notice. The notice may be sent before
                          the permit application has been
                          submitted. The draft  or final permit may
                          contain the alternative limitations which
                          may become effective upon final grant
                          of the variance.
                            (2) A discharger who cannot file a
                          complete request required under
                          paragraph (lj(2)(ii) or (l)(2)(iii] of this
                          section may request  an extension. The
                          extension may be granted or denied at
                          the discretion of the Director.
Extensions shall be no more than 6
months in duration.
   (o) Recordkeeping. Applicants shall
keep records of all data used to
complete permit applications and any
'supplemental information submitted
under this section for a period of at least
3 years from the date the application is
signed.

   [Note 1.—At 46 FR 2046. Jan. 8.1981, the
Environmental Protection Agency suspended
until further notice ! 122.21(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
•NPDES application Form 2c as they apply to
coal mines. This revision continues that
suspension.]
   [Note 2.—At 46 FR 22585. Apr. 20,1981. the
Environmental Protection Agency suspended
until further notice § 12i21(g)(7)(ii](A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply to:
   1. Testing and reporting for all four organic
fractions in the Greige Mills Subcategory of
the Textile Mills industry (Subpart C—Low
water use processing of 40 CFR Part 410), -and
testing and reporting for the pesticide fraction
in all other subcategories of this industrial
category.
   2. Testing and reporting for the volatile,
base /neutral and pesticide fractions in the
Base and Precious Metals Subcategory of the
Ore Mining and Dressing industry (Subpart B
of 40 CFR Part 440), and testing and reporting
for all four fractions in all other subcategones
of this industrial category.
   3. Testing and reporting for all four GC/MS
fractions in the Porcelain Enameling industry.
This revision continues that suspension.]
   [Note 3.—At 46 FR 35090. July 1.1981. the
Environmental Protection Agency suspended
until further notice. § 122Jl(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply to:
   1. Testing and reporting for the pesticide
fraction in the Tall Oil Rosin Subcategory
(Subpart D) and Rosin-Based Derivatives
Subcategory (Subpart F] of the Cum  and
Wood Chemicals industry (40 CFR Part 454),
and testing and reporting for the pesticide
and base-neutral fractions in all other
subcategories of mis industrial category.
   2. Testing and reporting for the pesticide
fraction in the Leather Tanning and Finishing.
Paint and Ink Formulation, and Photographic
Supplies-industrial categories.
   3. Testing and reporting for the acid, base/
neutral and pesticide fractions in the
Petroleum Refining industrial category.
   4. Testing and reporting for the pesticide
fraction in the Papergrade Sulflte
subcategories (Subparts J and U) of the Palp
and Paper industry (40 CFR Part 430); testing
and reporting for the base/neutral and
pesticide fractions in the following
subcategories: Deink (Subpart OJ, Dissolving
Kraft (Subpart F), and Paperboard from
Waste Paper (Subpart E); testing and
reporting for the volatile, base/neutral and
pesticide fractions in the following
subcategories: BCT Bleached Kraft (Subpart
H), Semi-Chemical (Subparts B and C). and
Nonintegrated-Fine Papers (Subpart R); and
testing and reporting for the acid, base/

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               Federal Register / Vol 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations        14153
neutral and pesticide fractions in the
following subcategories: Fine Bleached Kraft
(Subpart I), Dissolving Sulfite Pulp (Subpert
K). Groundwood-Fine Papers (Subpart O).
Market Bleached Kraft [Subpart G), Tissue
from Wastepaper (Subpart T). and
Nonintegrated-TJssue Papers (Subpart S).
  5. Testing and reporting for the base/
neutral fraction in the Once-Through Cooling
Water. Fly Ash and Bottom Ash Transport
Water process wastestreams of the Steam
Electric Power Plant industrial category.
This revision continues that suspension.]
  [Note 4.—At 48 FR 36703. July 15.1981. the
Environmental Protection Agency suspended
until further notice portions of {I22.2l(d)[2),
as set forth  below:
  1. Footnote (2) to the table in § 122.21(dl(2).
  2. In footnote (3) to the table in 40 CTR
§ 122.21(di(2;, the portion which restricts the
Director's authority to extend the application
deadline no later than the permit expiration
date as that restriction applies to the
submission of data required by §122.21(d) (7).
(9). and (10). Thus, during the suspension.
footnote (3) effectively reads as follows:
  3. The Director may grant permission to
submit an application later than this date but
(except for  information required by
paragraph (d) (7), (9), and (10) of this section)
no later than the expiration date of the
permit.
This revision continues that suspension.]

§ 122.22 Signatories to permit applications
and reports (applicable to State programs,
see § 123.25).
   (a) Applications. All permit
applications shall be signed as follows:
   (1] For a corporation: by a principal
 executive officer of at least the level of
 vice-president
   (2) For a partnership or sole
proprietorship: by a general partner or
 the proprietor, respectively; or
   [3) For a municipality. State, Federal,
 or other public agency: by either a
 principal executive officer or ranking
 elected official.  .
   (b) Reports. All reports required by
 permits and other information requested
 by the Director shall be.signed by a
 person described in paragraph (a) of this
 section, or by a  duly authorized
 representative of that person. A person
 is a duly authorized representative only
 if:
   (1) The  authorization is made in
 writing by a person described in
 paragraph (a) of this section;
   (2) The authorization specifies either
 an individual or a position having
 responsibility for the overall operation
 of the regulated facility or activity, such
 as the position of plant manager.
 operator of a well or a well field.
 superintendent, or position of equivalent
 responsibility. (A duly authorized
 representative may thus be either a
 named individual or any individual
 occupying a named position.] and
  (3] The written authorization is
submitted to the Director.
  (c) Changes to authorization. If an
authorization under paragraph (b] of this
section is no longe'r accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirements of paragraph
(b) of this section must be submitted to
the Director prior to or together with any
reports, information, or applications to
be signed by an authorized
representative.
  (d] Certification. Any person signing a
document under paragraph (a) or (b] of
this section shall make the following
certification:
  "I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document
and all attachments and that 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
imormaticn, including the possibility of fine
and imprisonment."

§ 122.23  Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
   [a] Permit requirement Concentrated
animal feeding operations are point
sources subject to the NPDES permit
program.
   (b) Definitions. (1) "Animal feeding
operation" means a  lot or facility (other
than an aquatic animal production
 facility] where the following conditions
are met:
   (i] Animals (other than aquatic
 animals] have been, are. or will be
 stabled or confined and fed or
 maintained for a total of 45 days or more
 in any 12-month period, and
   (ii] Crops, vegetation forage growth, or
 post-harvest residues  are not sustained
 in the normal growing season over any
 portion of the lot or facility.
   (2] Two or more animal feeding
 operations under common ownership
 are considered, for the purposes of these
 regulations,  to be a  single animal
 feeding operation if they adjoin .each
 other or if they use a common area or
 system for the disposal of wastes.
   (3) "Concentrated animal  feeding
 operation" means an "animal feeding
 operation" which meets the criteria in
 Appendix B of this Part, or which the
 Director designates under paragraph (c]
 of this section.
   (c) Case-by-case designation of
 concentrated animal feeding operations.
 (1) The Director may designate any
 animal feeding operation as a
 concentrated animal feeding operation
 upon determining that it is a significant
 contributor of pollution to the waters of
 the United States. In making this
 designation the Director shall consider
 the following factors:
   (i] The size of the animal feeding
 operation and the amount of wastes
 reaching waters of the United Stales;
   (ii] The location of the animal feeding
 operation relative to waters of the
 United Slates;
   (iii) The means of conveyance of
 animal wastes and process waste
 waters into waters of the United States:
   (iv) The slope, vegetation, rainfall, and
 other factors affecting the likelihood or .
 frequency of discharge of animal wastes
 and process waste waters into waters of
 the United States; and
   (v)  Other relevant factors.
   (2] No animal feeding operation with
 less than the numbers of animals set
 forth  in Appendix B of this Part shall be
 designated as a concentrated animal
 feeding operation unless:
   (i) Pollutants are discharged into
 waters of the United States through a
 manmade ditch, flushing system, or
 other similar manmade device: or
   (ii] Pollutants are discharged directly
 into waters  of the United States which
 originate outside of the facility and pass
 over, across, or through the facility or
 otherwise come into direct contact with
 the animals confined in the operation.
   (3] A permit application shall not be
 required from a concentrated animal
 feeding operation designated under this
 paragraph until the Director has
 conducted an on-site inspection of the
 operation and determined that the
 operation should and could be regulated
 under the permit program.

 §122.24  Concentrated aquatic animal
• production-facilities (aopliceble to State
 NPDES programs, see § 123.25).
    (a] Permit requirement. Concentrated
 aquatic animal production facilities, as
 defined in this section, are point sources
 subject to the NPDES permit program.
    (b) Defintion. "Concentrated aquatic
 animal production facility" means a
  hatchery, fish farm, or other facility
  which meets the criteria in Appendix C
  of this Pan. or which the Director
  designates  under paragraph (c) of this
  section.
    (c) Case-by-case designation of
  concentrated aquatic animal production
 facilities. (1) The Director may
  designate any warm or cold water
  aquatic animal production facility as a
  concentrated aquatic animal production
  facility upon determining that it is a
  significant  contributor of pollution to
  waters of the United States. In making
  this  designation the Director shall
  consider the following factors:

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14164         Federal Register / Vol. 48. No. 64 / Friday. April  1. 1983 / Rules  and Regulations
  (i) The location and quality of the
receiving waters of the United States:
  (ii) The holding, feeding, and
production capacities of the facility;
  (iii) The quantity and nature of the
pollutants reaching waters of the United
States; and
  (iv) Other relevant factors.
  (2) A permit application shall not be
required from a concentrated aquatic
animal production facility designated
under this paragraph until the Director
has conducted on-site inspection of the
facility and has determined that the
facility should and could be regulated
under the permit program.
§ 12225  Aquaculture projects (applicable
to State NPOES programs, see § 123.25).
  (a) Permit requirement. Discharges
into aquaculture projects, as defined in
this section, are subject to the NPDES
permit program through section 318 of
C\VA. and in accordance with 40 CFR
Part 125, Subpart B.
  (b) Definitions. (1) "Aquaculture
project" means a defined managed
water area which uses discharges of
pollutants into that designated area for
the maintenance or production of
harvestable freshwater, estuarine. or
marine plants or animals.
  (2) "Designated project area" means '
the portions of the waters of the United
States within which the permittee or
permit applicant plans to confine the
cultivated species, using a method or
pian or operation (including, but not
limited to. physical confinement) which.
on  the basis of reliable scientific
evidence, is expected to ensure that
specific individual organisms comprising
an  aquaculture crop will enjoy increased
growth attributable to the discharge of
pollutants, and be harvested within a
defined geographic area.

§ 122^6  Separate storm sewers  .
(applicable to State NPDES programs, see
§ 123^5).
  (a) Permit requirement. Separate
storm sewers, as defined in this section
are point sources subject to the NPDES
permit program. Separate storm sewers.
may be permitted either individually or
under a general permit (See § 122.28}.
An NPDES permit for discharges into
waters of the United States from a
separate storm sewer covers all
convenyances which are a  part of that
separate storm sewer system, even
though there may be several owners or
operators of these conveyances.
However, discharges into separate
storm sewers from point sources which
are not part of the separate storm sewer
systems may also require a permit.
  (b) Definition. (1) "Separate storm
sewer" means a conveyance  or system
of conveyances (including pipes.
conduits, ditches, and channels)
primarily used for collecting and
conveying storm water runoff and which
is either.
  (i) Located in an urbanized area as
designated by the Bureau of the Census
according to the criteria in 39 FR 152C2
{May 1.1974); or
  (ii) Not located in an urbanized area
but designated under paragraph (c) of
this section.
  (2) Except as provided in paragraph
(bj(3) of this section, a conveyance or
system of conveyances operated
primarily for the purpose  of collecting
and conveying storm water runoff which
is not located in an urbanized area and
has not been designated by the Director
under paragraph (c) of this section is not
considered a point source and is not
subject to the provisions of this section.
  (3) Conveyances which discharge
process wastewater or storm water
runoff  contaminated by contact with
wastes, raw materials, or pollutant-
contaminated soil, from lands or
facilities used for industrial or
commercial activities, into waters of the
United States or into separate storm
sewers are. point sources  that must
obtain NPDES permits but are not
separate storm sewers. •
  (4) Whether a system of conveyances
is or is not a separate storm sewer for
purposes of this section shall have no
bearing on whether the system is
eligible for funding under Title II of
CWA:  see 40 CFR 35.925-21.
  (c) Ccse-by-case designation of
separate storm sewers. The Director
may designate a storm sewer not
located in an urbanized area as a
separate storm sewer. This designation
may be made to the extent allowed or
required by EPA promulgated effluent
guidelines for point sources in  the
separate storm sewer category; or when:
  (1) A Water Quality Management plan
under  section 208 of CWA which
contains requirements applicable to
such point sources is approved: or
  (2) The Director determines that  a
storm  sewer is  a significant contributor
of pollution to the waters of the United
States. In making this determination the
Director shall consider the following
factors:
  (i) The location of the discharge with
respect to waters of the United States:
  (ii) The size of the discharge;
  (iii) The quantity and nature of the
pollutants reaching  waters of the United
States: and
  (iv) Other relevant factors.
§ 12227  Silviculture! activities (applicable
to State NPDES programs, see § 123.25).
   (a) Permit requirement. Silvicultural
point sources, as defined in this section,  .
as poinj> sources subject to the NPDES
permit program.   /
   (b) Definitions. (I) "Silvicultural point
source" means any discernible,  confined
and discrete conveyance related to rock
crushing, gravel washing, log sorting, or
log storage facilities which are operated
in connection with Silvicultural
activities and from which pollutants are
discharged into waters of the United
States. The term does not include non-
point source Silvicultural activities such
as nursery operations, site preparation.
reforestation and subsequent cultural
treatment/thinning, prescribed burning.
pest and fire control, harvesting
operations, surface drainage, or road
construction and maintenance from
which there is natural runoff. However.
some of these activities (such as stream
crossing  for roads] may involve point
source discharges of dredged or fill
material  which may require a CWA
section 404 permit (See 33 CFR 209.120
and Part 233).
   (2) "Rock crushing and gravel washing
facilities" means facilities which
process crushed and broken stone.
gravel, and riprap (See 40 CFR Part 436,
Subpart B, including the effluent
limitations guidelines).
   (3) "Log sorting and log storage
facilities" means facilities whose
discharges result from the holding of
unprocessed wood, for example, logs or
roundwood with bark or after removal
of bark held in self-contained bodies of
water (mill ponds or log ponds) or stored
on land where water is applied
intentionally on the logs (wet decking).
(See 40 CFR Part 429, Subpart I.
including the effluent limitations
guidelines).

§ 12228  General permits (applicable to
State NPDES programs, see § 12325).
   (a) Coverage. The Director may issue
a general permit in accordance with the
following:
   (1) Area. The general permit shall be
written to cover a category of discharges
described in the permit under paragraph
(a)(2) of this section, except those
covered  by individual permits, within a
geographic area. The area shall
. correspond to existing geographic or
political boundaries, such as:   '
   (i) Designated planning areas under
sections 208 and 303 of CWA;
   (ii) Sewer districts or sewer
authorities:
   (iii) City, county, or State political
boundaries;
   (iv) State highway systems;

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              Federal Register / Vol. 48. No. 64 / Friday. April  1. 1983  / Rules and Regulations         14165
  (v) Standard metropolitan statistical
areas as denned by the Office of
Management and Budget
  (vi) Urbanized areas as designated by
the Bureau of the Census according to
criteria in 30 FR15202 (May 1,1974); or
  (vii) Any other appropriate division or
combination of boundaries.
  (2) Sources. The general permit shall
be written to regulate, within the area
described in paragraph (a)(l) of this
section, either
  (i) Separate storm sewers; or
  (ii) A category of minor point sources
other than separate storm sewers if the
sources ail:
  (A) Involve the same or substantially
similar types of operations;
  (B) Discharge the same types of
wastes;
  (C) Require the same effluent
limitations or operating conditions:
  (D) Require the same or similar
monitoring;  and
  (E) In the  opinion of the Director, are
more appropriately controlled under a
general permit than under individual
permits.
  (b) Administration. (I) In general.
General permits may be issued.
modified, revoked and reissued, or
terminated in accordance with
applicable requirements of Part 124 or
corresponding State regulations. Special
procedures for issuance are found at
§ 123.44 for  States and § 124.58 for EPA.
  (2) Requiring an individual permit, (i)
The Director may require any person
authorized by a general permit to apply
for and obtain an individual NPDES
permit. Any interested person may
petition the  Director to take action
under this paragraph. Cases where an
individual NPDES permit may be
required include the following:
  (A) The discharge(s) is a significant
contributor  of pollution as determined
by the factors set forth at § 122.26(c)[2);
  (B) The discharger is not in
compliance  with the  conditions of the
general NPDES permit
  (C) A change has occurred in the
availability of demonstrated technology
or practices for the control or abatement
of pollutants applicable to the paint
source;
  (D) Effluent limitation guidelines are
promulgated for point sources covered
by the general NPDES permit
  (E) A Water Quality Management
plan containing requirements applicable
to such point sources is approved; or
  (F) The requirements of paragraph (a)
of this section are not met
  (ii) For EPA issued general permits
only, the Regional Administrator may
require any owner Qf operator
authorized by a general permit to apply
for an individual NPDES permit as
provided in paragraph (b)(2)(i) of this
section, only if the owner or operator
has been notified in writing thai a
permit application is required. This
notice shall include a brief statement of
the reasons for this decision, an
application form, a statement setting a
time for the owner or operator to file the
application, and a statement that on the
effective date of the individual NPDES
permit the general permit as it applies to
the individual permittee shall
automatically terminate. The Director
may grant additional time upon request
of the applicant
  (iii) Any owner or operator authorized
by a general permit may request to be
excluded from the coverage of the
general permit by applying for an
individual permit The owner or
operator shall submit an application
under § 122.21, with reasons supporting
the request to the Director no later than
90 days after the publication by EPA of
the general permit in the Federal
Register or the publication by  a State in
accordance with applicable State law.
The request shall be processed under
Part 124 or applicable State procedures.
The request shall be granted by issuing
of any individual permit if the reasons
cited by the owner or operator are
adequate to support the request.
  (iv) When an individual NPDES
permit is issued to an owner or operator
otherwise subject to a general NPDES
permit,  the applicability of the general
permit to the individual NPDES
permittee is automatically terminated on
the effective date of the individual
permit.
   (v) A source excluded from  a general
permit solely because it already has an
individual permit may request that the
individual permit be revoked,  and that  it
be covered by the general permit Upon
revocation of the individual permit the
general permit shall apply to the source.

§ 12Z29  New sources and new
dischargers.
   (a) Definitions.  '
   (1) "New source" and "new
discharger" are denned in § 122.2. [See
Note 2.]
   (2) "Source" means any building,
structure, facility, or installation from  .
which there is or may be a discharge of
pollutants.
   (3) "Existing source" means any
source which is not a new source or a
new discharger.
   (4) "Site" is defined in § 122A
   (5) "Facilities or equipment" means
buildings, structures, process or
production equipment or machinery
which form a permanent part  of the new
source and which will be used in its
operation, if these facilities or
 equipment are of such value as to
 represent a substantial commitment to
 construct It excludes facilities or
 equipment used in connection with     I
 feasibility.^ngineering.and design •
 studies regarding the source or water
 pollution treatment for the source.
   (b) Criteria for new source
 determination. (1) The following
 construction activities result hi a, new
 source:
   (i) Construction of a source on a site
 at which no other source is located, or
   (ii) Construction on a site at which
 another source is located of a building,
 structure, facility,  or installation from
 which there is or may be a  discharge of
 pollutants if:
.  (A) the process or production
 equipment that causes the discharge of
 pollutants from the existing source is
 totally replaced by this construction, or
   (B) the construction results in a
 change in the nature or quantity of
 pollutants discharged.
   (2) Construction on a site at which an
 existing source is located results in a
 modification subject to § 122.15 rather
 than a new source if the construction
 does not create a new building,
 structure, facility,  or installation from
 which there is or may be a  discharge of
 pollutants but otherwise alters, replaces,
 or adds to existing process or
 production equipment.
   (3} Construction of a new source as
 defined as § 17.2.3 has commenced if the
 owner or operator has: (i) Begun, or
 caused to begin as part a continuous on-
 site construction program:
   (A) Any placement assembly, or
 installation of facilities or equipment or
   (B) Significant site preparation work
 including clearing, excavation, or
 removal of existing buildings, structures,
 of facilities which is necessary  for the
 placement assembly, or installation of
 new source facilities or equipment or
   (ii) Entered a binding contractual
 obligation for the purchase of faculties
 or equipment which are intended to be
 used on its operation within a
 reasonable time. Options to purchase or
 contracts which can be terminated or
 modified without substantial loss, and
 contracts for feasibility, engineering,
 and design studies do not constitute a
 contractual obligation under the
 paragraph. (See Note 1 of this section.]
    (c) Requirement for an Environmental
 Impact Statement. (1) The  issuance of an
 NPDES permit to new source:
    (i) By EPA may be a major Federal
 action significantly affecting the quality
 of the human environment within the
 meaning of the National Environmental
 Policy Act of 1969 (NEPA), 33 U.S.C.
 4321 et seq. and is subject  to the

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 14166         Federal  Register / Vol. 48. No.  64 / Friday. April  1. 1983 / Rules  and Regulations
 environmental review provisions of
 NEPA as set out in 40 CFR Part 6,
 Subpart F. EPA will determine whether
 an Environmental Impact Statement
 (EIS) is required under 5 122.21(k)
 (special provisions for applications from
 new sources) and 40 CFR Part 6, Subpart
 F;
   (ii) By an NPDES approved State is
 not a Federal action and therefore does
 not require EPA to conduct an
 environmental review.
   (2) An EIS prepared under this
 paragraph shall include a
 recommendation either to issue or deny
 the permit.
   (i) If the recommendation is to deny
 the permit, the final EIS shall contain
 the reasons for the recommendation and
 list those measures, if any, which the
 applicant  could take  to cause the
 recommendation to be changed;
   (ii) If the recommendation is to issue
 the permit, the final EIS shall
 recommend the actions, if any, which
 the permittee should  take to prevent or
 minimize any adverse environmental
 impacts;
   (3) The Regional Administrator shall
 issue, condition, or deny the new source
 NPDES permit following a complete
 evaluation of any significant beneficial
 and adverse environmental impacts and
 a review of the recommendations
 contained in the EIS or finding of no
 significant impact.
   (4)(i) No on-site construction of a new
 source for which an EIS is required shall
 commence before final Agency action in
 issuing a final permit incorporating
 appropriate ElS-related requirements, or
 before execution by the applicant of a
 legally binding written agreement which
 requires compliance with all such
 requirements, unless such construction
 is determined by the Regional
 Administrator not to cause significant or
 irreversible adverse environmental
 impact. The provisions of any agreement
 entered into under this paragraph shall
 be incorporated as coditions of the
 NPDES permit when it is issued.
   (ii) No on-site construction of a new
 source for  which an EIS is not required
 shall commence until 30 days after
 issuance of a finding of no significant
 impact unless the construction is
 determined by the Regional
 Administrator not to cause significant or
 irreversible adverse environmental
 impacts.
   (5) The permit applicant must notify
 the Regional Administrator of any on-
 site construction which begins before
 the times specified in paragrah (c)(4) of
this section. If on-site construction
begins in violation of this paragraph, the
Regional Administrator shall advise the
owner or operator that it is proceeding
 with construction at its own risk, and
 that such construction activities
 constitute grounds for denial of a permit.
 The Regional Administrator may seek a
 court order to enjoin construction in
 violation of this paragraph.
   (d) Effect of compliance with new
 source performance standards. (The
 provisions of this paragraph do not
 apply to existing sources which modify
 their pollution control facilities or
 construct new pollution control facilities
 and achieve performance standards, but
 which are neither new sources or new
 dischargers or otherwise do not meet the
 requirements of this paragraph.)
   (1) Except as provided in paragraph
 (d)(2) of this section, any new
 discharger, the construction of which
 commenced after October 18.1972." or
 new source which meets the applicable
 promulgated new source performance
 standards before the commencement of
 discharge, may not be subject to any
 more stringent new source performance
 standards or to any more stringent
 technology-based standards under
 section 301(b)(2) of CWA for the soonest
 ending of the following periods:
   (i) Ten years from the date that
 construction is completed;
   (ii) Ten years from the date the source
 begins to discharge process or other
 nonconstruction related wastewaten or'
   (iii) The period of depreciation or
 amortization of the facility for the
 purposes of section 167 or 169  (or both)
 of the Internal Revenue Code of 1954.
   .(2) The protection from more stringent
 standards of performance afforded by
 paragraph (d)(l) of this section does not
 apply to:
   (i) Additional or more Stringent permit
 conditions which are not technology
 based; for example, conditions based on
 water quality standards, or toxic
 effluent standards or prohibitions under
 section 307(a) of CWA; or
   (ii) Additional permit conditions in
 accordance with § 125.3 controlling
• toxic pollutants or hazardous
 substances which are not controlled by
 new source performance standards. This
 includes permit conditions controlling
 pollutants other than those identified as
 toxic pollutants or hazardous
 substances when control of these
 pollutants has been specifically
 identified as the method to control the
 toxic pollutants or hazardous
 substances.
   (3) When an NPDES permit issued to a
 source with a "protection period" under
 paragraph (d)(l) of this section will
 expire on or after the expiration of the
 protection period, that permit shall
require the owner or operator of the
 source to comply with the requirements
of section 301 and any other then
 applicable requirements of CWA
 immediately upon the expiration of the
 protection period. No additional period
 for achieving compliance with these
 requirements may be allowed except
 when necessary iff achieve compliance
 with requirements promulgated less
 than 3 years before the expiration of the
 protection period.
   (4) The owner or operator of a new
 source, a new discharger which
 commenced discharge after August 13,
 1979, or a recommencing discharger
 shall install and have in operating
 condition, and shall "start-up" all
 pollution control equipment required to
 meet the conditions of its permits before
 beginning to discharge. Within the
 shortest feasible time (not to exceed 90
 days), the owner or operator must meet
 all permit conditions.
   (5) After the effective date of new
 source performance standards, it shall
 be unlawful for any owner or operator - -
 of any new source to operate the source
 in violation of those standards
 applicable to the source.
  [Note 1—§ 122.29. paragraphs (b)(l) and
(2) were suspended until further notice at 45
FR 59318. Sept. 9.1980.)
  (Note 2.—At 45 FR 68391. Oct. 15.1980.
 effective Oct. 15.1980. the Environmental
 Protection Agency suspended until further
 notice the NPDES "new discharger"
 definition as it applies to offshore mobile
 drilling rigs operating in offshore areas
 adjacent to the Gulf Coast. Atlantic Coast.
 California and Alaska, except for the Flower
 Garden area in the Gulf of Mexico and other
 areas identified as environmentally sensitive
 by the Bureau of Land Management.]

 Subpart C—Permit Conditions

 § 122.41  Conditions applicable to all
 permits (applicable to State programs, see
 § 123.25).

   The following conditions apply to all
NPDES permits. Additional conditions
applicable to NPDES permits are in
 § 122,42. All conditions applicable to
NPDES permits shall be incorporated
into the permits either expressly or by
reference. If incorporated by reference,
a specific citation to these regulations
(or the corresponding approved State
regulations) must be given  in the permit.
   (a) Duty to comply. The permittee
must comply with all conditions of this
permit Any permit noncompliance
constitutes a violation of the Clean
Water Act and is grounds for
enforcement action; for permit
termination, revocation and reissuance,
or modification; or denial of a permit
renewal application.
  (1) The permittee shall comply with
effluent standards or prohibitions
established under section 307(a) of the

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              Federal Register / Vol. 48. No.  64 / Friday. April 1, 1983  / Rules  and Regulations	14167
Clean Water Act for toxic pollutants
within the time provided in the
regulations that establish these
standards or prohibitions, even if the
permit has not yet been modified 1o
incorporate the'requirement.
  (2) The Clean Water Act provides that
any person who violates a  permit
condition implementing sections 301.
302. 306, 307, 308, 318 or 405 of the Clean
Water Act is subject to a civil penalty
not to exceed $100.000 per  day of such
violation. Any person who willfully or
negligently violates permit conditions
implementing sections 301,302,306, 307
or 308 of the Act is subject to a fine of
not less than 52,500 nor more than
$25,000 per day of violation, or by
imprisonment for not more than 1 year.
or both.
  (b) Duty to reapply. If the permittee
wishes to continue an activity regulated
by this permit after the expiration date
of this permit, the permittee must apply
for and obtain a new permit.
  (c) Duty to halt or reduce activity. It
shall not be a defense for a permittee in
an enforcement action that it would
have been necessary to halt or reduce
the permitted activity in order to
maintain compliance with the conditions
of this permit. Upon reduction,-loss, or
failure of the treatment facility, the
permittee shall, to the extent necessary
to maintain compliance with its permit,
control production or all discharges or
both until the facility is restored or an
alternative method of treatment is
provided. This requirement applies, for
example, when the primary source of
power of the treatment facility fails or is
reduced or lost.
   (d) Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or correct any adverse impact
on the environment resulting from
noncompliance with this permit
   (e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain all facilities and
systems of treatment and  control (and
related appurtenances] which are
installed or used by the permittee to
achieve compliance with the conditions
of this permit. Proper operation and
maintenance includes effective
performance, adequate funding.
adequate operator staffing and training,
and adequate laboratory and process
controls, including appropriate quality
assurance procedures. This provision
requires the operation of back-up or
auxiliary facilities or similar systems
only when necesssary to achieve
 compliance with the conditions of the
permit.
   (f) Permit actions. This permit may be
modified, revoked and reissued, or
 terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissuance,
or termination, or a notification of
planned changes or anticipated
noncompliancrdoes not stay any permit
condition.
  (g) Property rights. This permit does
not convey any property rights of any
sort, or any exclusive privilege.
  (h) Duty to provide information. The
permittee shall furnish to the Director,
within a reasonable time, any
information which the Director may
request to determine whether cause
exists for modifying, revoking and
reissuing, or terminating this permit or
to determine compliance with this
permit. The permittee shall also furnish
to the Director upon request, copies of
records required to be kept by this
permit.
  (i) Inspection and entry. The permittee
shall allow the Director, or an
authorized representative, upon the
presentation of credentials and other
documents as may be required by law,
to:
  (1) Enter upon the permittee's
premises where a regulated facility or
activity is located or conducted, or
where records must be kept under the
conditions of this permit;
  (2) Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit:
  (3) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under this permit; and
  (4) Sample or monitor at reasonable
times, for the purposes  of assuring
permit compliance or as otherwise
authorized by the Clean Water Act, any
substances or parameters at any
location.
   (j) Monitoring and records. (1)
Samples and measurements taken for
the purpose of monitoring shall be
representative of the monitored activity.
   (2) The permittee shall retain records
of all monitoring information, including
all calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation,
copies of all reports required by this
permit and records of all data used to
 complete the application for this permit
 for a period of at least 3 years from the
 date of the sample, measurement, report
 or application. This period may be
 extended by request of the Director at
 any time.
   (3) Records of monitoring information
 shall include:
   (i) The date, exact place, and time of
 sampling or measurements;
  (ii) The individual(s) who performed
the sampling or measurements;
  (iii) The date(s) analyses were
performed;
  (iv) The in'dividual(s) who performed
the analyses;       '
  (v) The analytical'techniques or
methods used; and
  (vi) The results of such analyses.
  (4) Monitoring must be conducted
according to test procedures Approved
under 40 CFR Part 136, unless other test
procedures have been specified in this
permit.
  (5) The Clean Water Act provides that
any person who falsifies, tampers with,
or knowingly renders inaccurate any
monitoring device or method required to
be maintained under this permit shall,
upon  conviction, be punished by a fine
of not more than 810,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both.
   (k)  Signatory requirement. (1) All
applications, reports, or information  _-
submitted to the Director shall be signed
and certified. (See  § 122.22)
   (2)  The CWA provides that any
person who knowingly makes any false
statement, representation, or
certification in any record or other
document submitted or required to be
maintained under this permit, including
monitoring reports or reports of
compliance or non-compliance shall,
upon conviction, be punished by a fine
of not more than 510,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both.
   (1) Reporting requirements. (1)
Planned changes. The permittee shall
give notice to the Director as soon as
possible of any planned physical
alterations or additions to the permitted
facility.
   (2) Anticipatednoncompliance. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity which
may  result in noncompliance with
permit requirements.
   (3) Transfers. This permit is not
 transferable to any person except after
 notice to the Director. The Director may
 require modification or revocation and
 reissuance of the permit to change the
 name of the permittee and incorporate
 such other requirements as may be
 necessary under the Clean Water Act.
 (See § 122.61; in some cases.
 modification or revocation and
 reissuance is mandatory.)
   (4) Monitoring reports. Monitoring
 results shall be reported at the intervals
 specified elsewhere in this permit
   (i) Monitoring results must be reported
 on a Discharge Monitoring Report
 (DMR).

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 14168        Federal Register  / Vol. 48. No. 64  / Friday, April 1, 1983  / Rules  and Regulations
  (ii) If the permittee monitors any
pollutant more frequently than required
by the permit, using test procedures
approved under 40 CFR 136 or as
specified in the permit, the results of this
monitoring shall be included in the
calculation and reporting of the data
submitted in the DMR.
  (iii) Calculations for all limitations
which require averaging of
measurements shall utilize an arithmetic
mean unless otherwise specified by the
Director in the permit.
  (5) Compliance schedules. Reports of
compliance or noncompliance with, or
any progress reports on. interim and
final requirements  contained in any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date.
  (6) Twenty-four hour reporting, (i) The
permittee shall report any
noncompliance which may endanger
health or the environment. Any
information shall be provided orally
within 24 hours from the time the
permittee becames aware of the
circumstances. A written submission
shall also be provided within 5 days of
the time the permittee becomes aware of
the circumstances. The written
submission shall contain a description
of the noncompliance and its cause: the
period of noncompliance, including
exact dates and times, and if the
noncompliance has not been corrected.
the anticipated time it is expected to
continue: and steps taken or planned to
reduce.-eliminate, and prevent
reoccurrence of-the noncompliance.
  (ii) The following shall be included as
information which must be reported
within 24 hours under this paragraph.
  (A) Any unanticipated bypass which
exceeds  any effluent limitation in the
permit. (See § 122.41(g).
  (B) Any upset which exceeds any
effluent limitation in the permit.
  (C) Violation of a maximum daily
discharge limitation for any of the-
pollutants listed by the Director in the
permit to be reported within 24 hours.
(See § 122.44(g).)
  (iii) The Director may waive the
written report on a case-by-case basis
for reports under paragraph (l)(6)(ii) of
this section if the oral report has been
received within 24 hours.
  (7) Other noncompliance. The
permittee shall report all instances of
noncompliance not reported under
paragraphs (1) (4), (5). and (6) of this
section, at the time monitoring reports
are sumbitted. The reports shall contain
the information listed in paragraph (1)(6)
of this section.
  (m) Bypass. (1) Definitions, (i)
"Bypass" means the intentional
diversion of waste streams from any
portion of a treatment facility.
  (ii) "Severe property damage" means
substantial physical damage to property,
damage to the treatment facilities which
causes them to become inoperable, or
substantial and permanent loss of
natural resources which  can reasonably
be expected to occur in the absence of a
bypass. Severe property  damage does
not mean economic loss  caused by
delays in production.
  (2) Bypass not exceeding limitations.
The permittee may allow any bypass to
occur which does not cause effluent
limitations to be  exceeded, but only if it
also is for essential maintenance to
assure efficient operation. These
bypasses are not subject to  the
provisions of paragraphs (m)(3) and
(m)(4) of this section.
  (3) Notice, (i) Anticipated bypass. If
the permittee knows  in advance of the
need for a bypass, it shall submit prior
notice, if possible at least ten days
before the date of the bypass.
  (ii) Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass as required in
paragraph (1)(6) of this section (24-hour
notice).
  (4) Prohibition of bypass,  (i) Bypass is
prohibited, and the Director may take
enforcement action against  a permittee
for bypass, unless:
  (A) Bypass was unavoidable to
prevent loss of life, personal injury, or
severe property damage;
  (B) There were no feasible
alternatives to the bypass, such  as the
use of auxiliary treatment facilities,
retention of untreated wastes, or
maintenance during normal periods of
equipment downtime. This condition is
not satisfied if the permittee could have
installed adequate backup equipment to
prevent a bypass which  occurred during
normal periods of equipment downtime
or preventive maintenance: and
  (C) The permittee submitted notices
as required under paragraph (m)(3) of
this section.
  (ii) The Director may approve an
anticipated bypass, after considering its
adverse effects, if the Director
determines that it will meet the three
conditions listed above in paragraph
(m)(4](i) of this section.
  (n)  Upset. (1) Definition. "Upset"
means an exceptional incident in which
there is unintentional and temporary
noncompliance with technology based
permit effluent limitations because of
factors beyond the reasonable control of
the permittee. An upset does not include
noncompliance to the extent caused by
operational error, improperly designed
treatment facilities, inadequate
treatment facilities, lack of preventive
 maintenance, or careless or improper
 operation,
   (2) Effect of an upset. An upset
 constitutes an affirmative defense to an
 actipn. brought for noncompliance with
 such technology /based permit effluent
 limitations if the requirements of
 paragraph (n)(3) of this section are met.
 No determination made during
 administrative review of claims that
 noncompliance was caused by upset,
 and before an action for noncompliance,
 is final administrative action subject to
 judicial review.
   (3) Conditions necessary for a
 demonstration of upset. A permittee
 who wishes to establish the affirmative
 defense of upset shall demonstrate,
 through properly signed.
 contemporaneous operating logs, or
 other relevant evidence that:
   (i) An upset occurred and that the
 permittee can identify the specific
 cause(s) of the upset;
   (ii) The permitted facility was at the
 time being properly operated; and
   (iii) The permittee submitted notice of
 the upset as required in paragraph
 (l)(6)(ii)(B) of this section (24 hour
 notice).
   (iv) The permittee complied with any
 remedial measures required under
 paragraph (d) of this section.
   (4) Burden of proof. In any
 enforcement proceeding the permittee
 seeking to establish the occurrence of an
 upset has the burden of proof.

 § 122.42 Additional conditions applicable
 to specified categories of NPDES permits
 (applicable to State NPDES programs, see
 § 123.25).
   The following conditions, in addition
 to' those set forth in § 122.41, apply to all
• NPDES permits within the categories
 specified below:
   (a) Existing manufacturing.
 commercial, mining, and silvicultural
 dischargers. In addition to the reporting
 requirements under § 122.41(1),  all
 existing manufacturing, commercial,
 mining, and silvicultural dischargers
 must notify the Director as soon as they
 know or have reason to believe:
   (1) That any activity has occurred or
 will occur which would result in the
 discharge of any toxic pollutant which is
 not limited in the permit, if that
 discharge will exceed the highest of the
 following "notification levels":
   (i) One hundred micrograms per liter
 (100 ng/l);
   (ii) Two hundred micrograms per liter
 (200 fig/1) for acrolein and acrylonitrile;
 five hundred micrograms per liter (500
 Hg/1) for 2,4-dinitrophenol and for 2-
 methyl-4,6-dinitrophenol; and one
 milligram per liter (1 mg/1) for antimony;

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              Federal Register /Vol.  48. No. 64 / Friday. April  1. 1983 / Rules  and Regulations	14169
  (iii) Five (5) times the maximum
concentration value reported for that
pollutant in the permit application in
accordance with § 12Z21 (g)(7) or (g)
(10); or
  (iv) The level established by the
Director in accordance with § 122.44(f).
  (2) That they have begun or expect to
begin to use or manufacture as an
intermediate or final product or
byproduct any toxic pollutant which
was not reported in the permit
application under § 122.21(g)(9).
  (b) Publicly owned treatment works.
All POTWs must provide adequate
notice to the Director of the following:
  (1) Any new introduction of pollutants
into the POTW from an indirect
discharger which would be subject to
sections 301 or 306 of CWA if it were
directly discharging those pollutants:
and
  (2) Any substantial change in the
volume or character of pollutants being
introduced into that POTW by a source
introducing pollutants into the POTW at
the time of issuance of the permit.
  (3) For purposes of this paragraph.
adequate notice shall include
information on (i) the quality and
quantity of effluent introduced into the
POTW, and (i) any anticipated impact of
the change on the quantity or quality of
effluent to be  discharged from the
POTW.

§ 122.43  Establishing permit conditions
(applicable to State programs, see
§ 123.25).
   (a) In addition to conditions required
in all permits  (§§ 122.41 and 122.42), the
Director shall establish conditions, as
required on a case-by-case basis, to
provide for and assure compliance with
all applicable requirements of CWA and
regulations. These shall include
conditions under §§ 122.46 (duration of
permits), 122.47{a) (schedules of
compliance), 122.48 (monitoring), and for
EPA permits only 122.47(b) (alternates
schedule of compliance) and 122.49
 (considerations under Federal law).
   (b)(l) For a State issued permit an
applicable requirement is a State
statutory or regulatory requirement
which takes effect prior to final
 administrative disposition of a permit
 For a permit issued by EPA, an
 applicable requirement is a statutory or
 regulatory requirement (including any
 interim final regulation) which takes
 effect prior to the issuance of the permit
 (except as provided in § 124.86(c) for
 NPDES permits being processed under
 Subparts E or F of Part 124). Section
 124.14 (reopening of comment period)
 provides a means for reopening EPA
 permit proceedings at the discretion of
 the Director where new requirements
become effective during the permitting
process and are of sufficient magnitude
to make additonal proceedings
desirable: For State and EPA
administered programs, an applicable
requirement is also any requirement
which takes effect prior to the
modification or revocation and
reissuance of a permit, to the extent
allowed in § 122.62.
  (2) New or reissued permits, and to
the extent allowed under § 122.62
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
§§ 122.44  and 122.45.
  (c) Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
incorporated by reference, a specific
citation to the applicable regulations or
requirements must be given in the
permit.

§ 122.44  Establishing limitations,
standards, and other permit conditions
(applicable to State NPOES programs, see
§ 123.25).
  In addition to the conditions
established under § 122.43(a), each
NPDES permit shall include conditions
meeting the following requirements
when applicable.
   (a) Technology-based effluent
. limitations and standards based on
effluent limitations and standards
promulgated under section 301 of CWA
or new source performance standards
promulgated under section 306 of CWA.
on case-by-case effluent limitations
 determined under section 402(a)(l) of
 CWA, or on a combination of the two, in
 accordance with § 125.3. For new
 sources or new dischargers, these
 technology  based limitations and
 standards are subject to the provisions
 of § 122>29(d) (protection period).
 . (b) Other effluent limitations and
 standards under sections 301,302,303,
 307,318,  and 405 of CWA. If any
 applicable toxic effluent standard or
 prohibition (including any schedule of
 compliance specified in such effluent
 standard or prohibition) is promulgated
 under section 307(a) of CWA for a toxic
 pollutant and that standard or
 prohibition is more stringent than any
 limitation on the pollutant in the permit
 the Director shall institute proceedings
 under these regulations to modify or
 revoke and reissue the permit to
 conform to the toxic effluent standard or
 prohibition. See also § 122.41(a).
    (c) Reopener clause: for any
 discharger within a primary industry
 category (see Appendix A),
 requirements under section 307(a)(2) of
 CWA as follows:
  (1) On or before June 30,1983: (i) If
applicable standards or limitations have
not yet been promulgated, the permit
shall include a'condition stating that, if
an applicable standard'or limitation is
promulgated under sections 301(b)(2) (C)
and (D), 304(b)(2), and 307(a)(2) and that
effluent standard or limitation is more
stringent than any effluent limitation in
the permit or controls a pollutant not
limited in the permit, the permit shall be
promptly modified or revoked and
reissued to conform to  that effluent
standard or limitation.
  (ii) If applicable standards or
limitations have been promulgated  or
approved, the permit shall include those
standards or limitations. (If EPA
approves existing effluent limitations or
proves existing effluent limitations  or
decides not to develop new effluent
. limitations, it will publish a notice in the
Federal Register that the limitations are
"approved" for the purpose of this
regulation.)
   (2) After June 30.1981, any permit
issued shall include effluent limitations
and a  compliance schedule to meet the
requirements of sections 301(b](2) (A),
 (C). (D), (E) and (F) of CWA. whether or
not applicable effluent limitations
guidelines have been promulgated or
 approved. These permits need not
 incorporate the clause required by
 paragraph (c)(l) of this section.
   (3) The Director shall promptly modify
 or revoke and reissue any permit
 containing the clause required under
 paragraph (c)(l) of this section to
 incorporate an applicable effluent
 standard or limitation  under sections
 301(b)(2) (C) and (D), 304(b)(2), and
 307(a)(2) which is promulgated or
 approved after the permit is issued if
 that effluent standard  or limitation is
 more  stringent than any effluent
 limitation in the permit or controls a
 pollutant not limited in the permit
   (d)  Water quality standards and State
 requirements: any requirements in
 addition to or more stringent than
 promulgated effluent limitations
 guidelines or standards under sections
 301, 304,306.307,318, and 405 of CWA
 necessary to:
   (1)  Achieve water quality standards
 established under section 303 of CWA:
   (2)  Attain or maintain a specified
 water quality through water quality
 related effluent limits established  under
 section 302 of CWA;
    (3)  Conform to the conditions of a
 State certification under section 401 of
 CWA which meet the requirements of
  § 124.53 when EPA is  the permit issuing
  authority, however, if a State
  certification is stayed by a court of
  competent jurisdiction or appropriate

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 14170
Federal  Register / Vol. 48, No.  64 / Friday, April 1, 1983  / Rules  and Regulations
State board or agency. EPA shall include
conditions in the permit which may be
necessary to meet EPA's obligation
.under section 3Ql(b)(l)(C) of CWA;
  (4) Conform to applicable water
quality requirements under section
40l(a)(2) of CWA when the discharge
affects a State other than the certifying
State;
  (5) Incorporate any more stringent
limitations, treatment standards, or
schedule of compliance requirements
established under Federal or State law
or regulations in accordance with
section 301(b)(l)(C) of CWA:
  (6) Ensure consistency with the
requirements of a Water Quality
Management plan approved by EPA
under section 208(b) of CWA:
  (7) incorporate section 403(c) criteria
under Part 125, Subpart M. for ocean
discharges;
  (8) Incorporate alternative effluent
limitations or standards where
warranted by "fundamentally different
factors," under 40 CFR Part 125. Subpart
D;
  [9) Incorporate any other
requirements, conditions, or limitations
into a new source permit  under the
National Environmental Policy Act 42
U.S.C. 4321 et seq. and section 511 of
CWA, when EPA is the permit issuing
authority (see § 12239).
  (e) Toxic pollutants: limitations
established under paragraphs (a), fo], or
(d) of this section, to control pollutants
meeting the criteria listed in paragraph
(e)(l) of this section. Limitations will be
established in accordance with
paragraph (e)(2) of this section. An
explanation of the development of these
limitations shall be included in the fact
shee-t under § 124.56(e)(2).
  (1) Limitations must control all toxic
pollutants which:
  (i) The Director determines (based on
information reported in.a permit
application under § 122Un(g)(7) or (10)
or in a notification under § 122.42(a)(l)
or on other information) are or may be
discharged at a level greater than the
level which can be achieved by the
technology-based treatment
requirements appropriate to-the
permittee under § 125.3(c); or
  (ii) The discharger does or may use or
manufacture as an intermediate cr final
product or byproduct
  (2) The requirement that the
limitations control the pollutants
meeting the criteria of paragraph (e)(l)
of this section will be satisfied by.
  (i] Limitations on those pollutants; or
  (ii) Limitations on other pollutants
which, in the judgment of the Director.
will provide treatment of the pollutants
under paragraph (e)(l) of this section to
the levels required by § 125.3(c).
                           (f) Notification level: a "notification
                         level" which exceeds the notification
                         level of § 122.42(a)(l)(i). (ii). or (iii), upon
                         a petition from the permittee oc on the
                         Director's initiative. This new
                         notification level may not exceed the
                         level which can be achieved by the
                         technology-based treatment
                         requirements appropriate to the
                         permittee under § 125.3(c)
                           (g) Twenty-four hour reporting:
                         Pollutants for which the permittee must
                         report violations of maximum daily
                         discharge limitations under
                         § 122.41(l)(6)(i!)(C)(24-hour reporting)
                         shall be listed in the permit This list
                         shall include any toxic pollutant or
                         hazardous substance, or any pollutant
                         specifically identified as the method to
                         control a toxic pollutant or hazardous
                         substance.
                           (h) Durations for permits, as set forth
                         in § 122.46.
                           (i) Monitoring requirements: In
                         addition to § 122.46," the following
                         monitoring requirements:
                           (1) To assure compliance with permit
                         limitations, requirements to monitor:
                           (i) The mass (or other measurement
                         specificed in the permit) for each
                         pollutant limited in the  permit
                           (ii) The volume of effluent discharged
                         from each outfall:
                           (iii) Other measurements as
                         appropriate; including pollutants in
                         internal waste streams  under § 122.45(i).
                         pollutants in intake water for net
                         limitations under § 122.45(f): frequency,
                         rate of discharge, etc* for noncontinuous
                         discharges under § 12Z45(e); and
                         pollutants subject to notification
                         requirements under § 122.42(a).
                           (iv) According to test procedures
                         approved under 40 CFR Part 136 for the
                         analyses of pollutants having approved
                         methods under that Part and according
                         to a test procedure specified in the
                         permit for pollutants with no approved
                         methods.   •
                           (2) Requirements to report monitoring
                         results with a frequency dependent on
                         the nature and effect of the discharge.
                         but in no case less than once a year.
                           (j) Pretreatment program for POTWs:
                         requirements for POTWs to:
                           (1) Identify, in terms of character and
                         volume of pollutants, any significant
                         indirect dischargers into the POTW
                         subject to pretreatznent standards under'
                         section 307(b) of CWA and 40 CFR Part
                         403.
                           (2) Submit a local program when
                         required by and in accordance with 40
                         CFR Part 403 to assure compliance with
                         pretreatment standards to the extent
                         applicable under section 307(b). The
                         local program shall be incorporated into
                         the permit as described in 40 CFR Part
                         403. The program shall require all
 indirect dischargers to the POTW to
 comply with the reporting requirements
 of 40 CFR Part 403.
   (k) Best management practices to "
 control-or abate the discharge of
 pollutants when?
   (1) Authorized under section 304(e) of
 CWA for the control of toxic pollutants
 and hazardous substances from
 ancillary industrial activities;
   (2) Numeric effluent limitations are
 infeasible, or
   (3) The practices are reasonably
 necessary to achieve effluent limitations
 and standards or to carry out the
 purposes and  intent of CWA.
   (1) Reissued permits. (1) Except as
 provided in paragraph (1)(2) of this
 section when a permit is renewed or
 reissued, interim limitations, standards
 or conditions which are at least as
 stringent as the final limitations,
 standards, or conditions in the previous
 permit (unless the circumstances on
 which the previous permit was based -
 have materially and  substantially
 changed since the time the permit was
• issued and would constitute cause for
 permit modification or revocation and
 reissuar.ce under § 122.62).
   (2) When effluent limitations were
 imposed under section 402(a)(l) of CWA
 in a previously issued permit and these
 limitations are more  stringent than the
 subsequently promulgated effluent
 guidelines, this paragraph shall apply
 unless:
   (i) The discharger has installed the
 treatment facilities required to meet the
 effluent limitations in the previous
 permit and has properly operated and
 maintained the facilities but has
 nevertheless been unable to achieve the
 previous effluent limitations. In this case
 the limitations in the renewed or
 reissued permit may reflect the level of
 pollutant control actually achieved (but
 shall not be less stringent than required
 by the subsequently  promulgated
 effluent limitation guidelines);
   (ii) In the case of an approved State.
 State law prohibits permit conditions
 more stringent than an.applicable
 effluent limitation guideline;
   (iii) The subsequently promulgated
 effluent guidelines are based on best
 conventional pollutant control
 technology (section 301(b)(2)(E) of
 CWA);
   (iv) The circumstances on which the
 previous permit was based have
 materially and substantially changed
 since the time the permit was issued and
 would constitute cause for permit
 modification or revocation and
 reissuance under § 122.62; or
   (v) There is increased production at
 the facility which results in significant

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              Federal Register /  Vol.  48, No. 64 / Friday.  April 1.  1983 / Rules and Regulations	14171
reduction in treatment efficiency, in
which case the permit limitations will be
adjusted to reflect any decreased
efficiency resulting from increased
production and raw waste loads, but in
no event shall permit limitations be less
stringent than those required by
subsequently promulgated standards
and limitations.
  (m) Privately owned treatment works:
For a privately-owned treatment works,
any conditions expressly applicable to
any user, as a limited co-permittee, that
may be necessary in the permit issued to
the treatment works to ensure
compliance with applicable
requireisants under this Part.
Alternatively, the Director may issue
separate permits to the treatment works
and to its users, or may require a
separate permit application from any
user. The Director's decision to issue a
permit with no conditions applicable to
any user, to impose conditions on one or
more users, to issue separate permits, or
to require separate applications, and the
basis for that decision, shall be stated in
the fact sheet for the draft permit for the
treatment works.
   (n) Grants: Any  conditions imposed in
grants made by the Administrator to
POWs under sections 201 and 204 of  -
CWA which are reasonably necessary .
for the achievement of effluent
limitations under section 301 of CVVA.
   (o) Sewage sludge: Requirements
under section 405 of CWA governing the
 disposal of sewage sludge from publicly
 owned treatment works, in accordance
 with any applicable regulations.
   (p) Coast Guard: when a permit is
 issued to a facility that may operate at
 certain times as a  means of
 transportation over water, a condition
 that the discharge shall comply with any
 applicable regulations promulgated by"
 the Secretary of the department in
 which the Coast Guard is operating, that
 establish specifications for safe
 transportation, handling, carriage, and
 storage of pollutants.
   (q) Navigation: any conditions that
 the Secretary of the Army considers
 necessary to ensure that navigation and
 anchorage will not be substantially
 impaired, in accordance with § 124.58.

 § 122.45  CalcuJttifKj NPDES permit
 conditions (applicable to State NPDES
 programs, see § 123-25).
   (&) Outfalls and discharge points. All
 permit effluent limitations, standards
 and prohibitions shall be established for
 each outfall or discharge point of the
 permitted facility, except-as otherwise
 provided under §  122.44(j)(2) (BMPs
 where limitations are infeasible) and
 paragraph (i) of this section (limitations
 on internal waste streams).
  (b) Production-based limitations. [1]
In the case of POTWs, permit
limitations, standards, or prohibitions
shall be calculated based on design
flow.
  (2) Except in the case of POTWs,
calculation of any permit limitations,
standards, or prohibitions which are
based on production (or other measure
of operation) shall be based not upon
the designed production capacity but
rather upon a reasonable measure of
actual production of the facility, such as
the production during the high month of
the previous year, or the monthly
average for the highest of the previous 5
years. For new sources or new
dischargers, actual production shall be
estimated using projected- production;
The time period of the measure of
production shall correspond to the time
period of the calculated permit
limitations; for example, monthly
production shall be used to calculate
average monthly discharge limitations.
  (c) Metals. All permit effluent
limitations, standards, or prohibitions
for a metal shall be expressed hi  terms
of the total metal (that is. the sum of the
dissolved and suspended fractions of
the metal] unless:
  (1] An applicable effluent standard or
limitation has been promulgated  under
CWA and specifies the limitation for the
metal in the dissolved or valent form: or
   (2) In establishing permit limitations '
on a case-by-case basis under § 125.3, it
is necessary to express the limitation on
the metal in the dissolved  or valent form
in order to carry out the provisions of  *
CWA.
   (d) Continuous discharges. For
continuous discharges all permit effluent
limitations, standards, and prohibitions,
including those necessary to achieve
water quality standards, shall unless
 impracticable be stated as:
   (1) Maximum daily and  average
 monthly discharge limitations for all*
 dischargers other than publicly owned
 treatment works; and
   (2) Average weekly and average
 monthly discharge limitations for
 POTWs.
   (e) Non-continuous discharges.
 Discharges which are not continuous, as
 denned in § 122.2. shall be particularly
 described and limited, considering the
 following factors, as appropriate:
   (1) Frequency (for example, a batch
 discharge shall not occur  more than
 once every 3 weeks):
   (2) Total mass (for example, not to
 exceed ICO kilograms of zinc and 200
 kilograms of chromium per batch
 discharge);
   (3) Maximum rate of discharge of
 pollutants during the discharge (for
example, not to exceed 2 kilograms of
zinc per minute); and
  (4) Prohibition or limitation of
specified pollutants by mass,
concentration, or other appropriate
measure (for example, shall not contain
at any time more than 0.1 mg/1 zinc or
more than 250 grams (X kilogram) of
zinc in any discharge).
  (f) Mass limitations. (1) All pollutants
limited in permits shall have limitations,
standards or prohibitions expressed in
terms of mass except:
  (i) For pH, temperature, radiation, or
other pollutants which cannot
appropriately be expressed by ir.a;,s;
  (ii) When applicable standards and
limitations are expressed in terms of
other units of measurement; or
  (iii) if in establishing permit
limitations on a case-by-case basis
under § 125.3, limitations expressed in
terms of mass are infeasible because the
mass of the pollutant discharged cannot
be  related to a measure of operation (for
example, discharges of TSS from certain
mining operations), and permit
conditions ensure that dilution will not
be  used as a substitute for treatment.
  (2) Pollutants limited in terms of mass
additionally may be limited in terms of
other units of measurement, and the
permit shall require the permittee to
comply with both limitations.
  (g) Pollutants in intake water. Except
as  provided in paragraph (h) of this
section, effluent limitations imposed in
permits may not be adjusted for
pollutants in the intake water.
  (h) Net limitations.
  (1) Upon request of the discharger.
effluent limitations or standards
imposed in a permit shall be calculated
 on a "net" basis: that is. adjusted to
reflect credit for pollutants in the
 discharger's intake water, if the
 discharger demonstrates that its intake
 water is drawn from the same body of
 water into which the  discharge is made
 and if:
   (i)(A) The applicable effluent
 limitations and standards contained in
 40 CFR Subchapter N specifically
 provide that they shall be applied on a
 net basis; or
    (B) The discharger  demonstrates that
 pollutants present in  the intake water
 will not be entirely removed by the
 treatment systems operated by the
 discharger, and
    (ii) The permit contains conditions
 requiring:
    (A) The permittee to conduct
 additional monitoring (for example, for
 flow and concentration of pollutants) as
 necessary to determine continued
 eligibility for and compliance with any
 such adjustments; and

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 14172	Federal Register  /  Vol. 48. No. 84  / Friday,.April  1. 1983 / Rules and  Regulations
   (B) The permittee to notify the
Director if eligibility for an.adjustment
under this section has been altered or no
longer exists. In that case, the permit
may be modified accordingly under
§ 122.62.
   (2] Permit effluent limitations or
standards adjusted under this paragraph
shall be calculated on the basis of the
amount of pollutants present after any
treatment steps have been performed on
the intake water by or for the
discharger. Adjustments under this
paragraph shaft be given only to the
extent that pollutants in the intake
water which are limited in the permit
are not removed by the treatment
technology employed by the discharger.
In addition, effluent limitations or
standards may not be  adjusted to the
extent that the pollutants in the intake
water vary physically, chemically, or
biologically from the pollutants limited
in the permit. Nor may effluent
limitations or standards be adjusted to
the extent that the discharger
significantly increases concentrations of
pollutants in the intake water, even
though the total amount of pollutants
might remain the same.
   (i) Internal waste streams. [1] When
permit effluent limitations or standards
imposed at the point of discharge are
impractical or infeasible, effluent
limitations or standards for discharges
of pollutants may be imposed on
internal waste  streams before mixing
with other waste streams or cooling
water streams. La those instances, the
monitoring required by § 122.44(i) shall
also be applied to the internal waste
streams.
   (2) Limits on internal waste streams
will be imposed only when the fact
sheet under § 124.56 sets forth the
exceptional circumstances which make
such limitations necessary, such as
when the final discharge point is
inaccessible (for example, under 10
meters of water), the wastes at the point
of discharge  are so diluted as to make
monitoring impracticable, or the
interferences among pollutants at the
point of discharge would make detection
or analysis impracticable.
  (j) Disposal of pollutants into ivells,
into POTWs or by land application.
Permit limitations and standards shall
be calculated as provided in § 122.50.

§ 122.46  Duration of permits (applicable to
State programs, s*« § 123J5).
  (a) NPDES permits shall be effective
for a fixed term not to exceed 5 years.
  (b) Except  as provided in § 122.5, the
term of a permit shall not be extended
by modification beyond the maximum
duration specified in this section.
   (c) The Director may issue any permit
for a duration that is less than the full
allowable term under this section.
   (d) On or before June 30,1981, any
permit issued to a discharger in a
primary industry category (see
Appendix A of this Part):
   (1) Shall meet one of the following
conditions:
   (i) Expire on June 30,1981;
   (ii) Incorporate effluent standards and
limitations applicable to the discharger
which have been promulgated or
approved under sections  301(b)(2) (C)
and (D). 304(b)(2), and 307(a)(2) of CWA:
or
   (iii) Incorporate the "reopener clause"
required by § 122.44(c)(l), and effluent
limitations to meet the requirements of
sections 301(b)(2) (A)..(C), (D), (E), and
(F) of CWA.
   (2) Shall not be written to expire after
June 30.1961  unless the discharger has
submitted to  the Director the
information required by § 122.21(g)(7)(ii).
   (e) After June 30,1981. a permit may
be issued for the full  term if the permit
includes effluent limitations and a
compliance schedule to meet the
requirements of sections' 301(b)(2) (A).
(C). (D). (E). and (F) of CWA. whether or
not applicable effluent limitations
guidelines have been promulgated or
approved.
   (f) A determination that a particular
discharger falls within a given industrial
category for purposes of setting a permit
expiration  date under paragraph (e) of
this section is not conclusive as to the
discharger's inclusion in that industrial
category for any other purposes, and
does not prejudice any rights to
challenge or change that inclusion at the
time that a permit based on that
determination is formulated.

§ 12Z47  Schedules of compliance.
   (aj General (applicable to State
programs, see § 123.25). The permit may,
when appropriate, specify a schedule of
compliance leading to compliance with
CWA and regulations.
   (1) Time for compliance. Any
schedules of compliance under this
section  shall require compliance as soon
as possible, but not later than the
applicable  statutory deadline under the
CWA.
   (2) The first NPDES permit issued to a
new source, a new discharger which
commenced discharge after August 13,
1979, or a recommencing discharger may
not contain a schedule of compliance
under this section. See also
§ 122.29(d)(4).
   (3) Interim dates. Except as provided
in paragraph  (b)(l)(ii), if a permit
establishes a  schedule of compliance
which exceeds 1 year from the date of
permit issuance, the schedule shall set
forth interim requirements and the dates
for their achievement.
  (i) The time between interim dates
shall not exceed'1 year..
  (ii) If the time' necessary for
completion of any interim requirement
(such as the construction of a control
facility) is more than 1 year and is not
readily divisible into stages for
completion, the permit shall specify
interim dates for the submission of
reports of progress toward completion of
the interim requirements and indicate a
projected completion date.
  [Note.—Examples of interim requirements
include: (a) submit a complete Step 1
construction grant (for POTA's): (b) let a
contract for construction of required
facilities: (c) commence construction of
required facilities: (d) complete construction
of required facilities.]
  (4) Reporting. The permit shall be
written to require that no later than 14-
days following each interim date and
the final date of compliance, the
permittee shall  notify the Director in
writing of its compliance or
noncompliance  with the interim or final
requirements, or submit progress reports
if paragraph (a)(l)(ii) is applicable.
  (b) Alternative schedules of
compliance. An NPDES permit applicant
or permittee may cease conducting
regulated activities (by terminating of
direct discharge for NPDES sources)
rather  than continuing to operate and
meet permit requirements as follows:
 ^ (1) If the permittee decides to cease
conducting regulated activities at a
given time within the term of a permit
which  has already been issued:
  (i) The permit may be modified to
contain a new or additional schedule.
leading to timely cessation of activities;
or
  • (ii) The permittee shall cease
conducting permitted activities before
non-compliance with any interim or
final compliance schedule requirement
already specified in the permit.
  (2) If the decision to cease conducting
regulated activities is made before
issuance of a permit whose term will
include the termination date, the permit
shall contain a schedule leading to
termination which will ensure timely
compliance with applicable
requirements no later than the statutory
deadline.
  (3) If the permittee is undecided
whether to cease conducting regulated
activities, the Director may issue or
modify a permit to contain two
schedules as follows:
  (i) Both schedules shall contain an
identical interim deadline requiring a
final decision on whether to cease

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              Federal Register / Vol 48. No.  64 / Friday. April 1. 1983 / Rules and Regulations         14173
conducting regulated activities no later
than a date which ensures sufficient
time to comply with applicable
requirements in a timely manner if the
decision is to continue conducting
regulated activities:
  (ii) One schedule shall lead to timely
compliance with applicable  •
requirements, no later than the statutory
deadline;
  (iii) The second schedule shall lead to
cessation of regulated activities by a
date which will ensure timely
compliance with applicable
requirements no later than the statutory
deadline.
  (iv) Each permit containing two
schedules shall include a requirement
that after the permittee has made a final
decision under paragraph (b)(3)(i) of this
section it shall follow the schedule
leading to compliance if the decision'is
to continue conducting regulated
activities, and follow the schedule
leading to termination if the decision is
to cease conducting regulated activities.
  (4) The applicant's or permittee's
decision to cease conducting regulated
activities shall be evidenced by a firm
public commitment satisfactory to the
Director, such as a resolution of the
board of directors of a corporation.

§ 122.48  Requirements tor recording and
reporting of monitoring results (applicable
to State programs, see § 123.25).
  All permits shall specify.
  (a) Requirements concerning the
proper use, maintenance, and
installation, when appropriate, of
monitoring equipment or methods
(including biological monitoring
methods when appropriate);
  (b) Required monitoring including
type, intervals, and frequency sufficient
to yield data which are representative of
the monitored activity including, when
appropriate, continuous monitoring;
  (c) Applicable reporting requirements
based upon the impact of the regulated
activity and as specified in § 122.44.
Reporting shall be no less frequent than
specified in the above regulations.

§ 122.49 Considerations under Federal
law.
  Permits shall be issued in a manner
and shall contain conditions consistent
with requirements of applicable Federal
laws. These laws may include:
  (a) The Wild and Scenic Rivers Act,
16 U.S.C. 1273 et seq. Section 7 of the
Aot prohibits the Regional
Administrator from assisting by license
or otherwise the construction of any
water resources project that would have
a direct, adverse effect on the values for
which a national wild and scenic river
was established.
  (b) The National Historic
Preservation Act of 1966.16 U.S.C. 470
et seq. Section 106 of the Act and
implementing regulations (36 CFR Part
800) require the Regional Administrator,
before issuing a' license, to adopt
measures when feasible to mitigate
potential adverse effects of the licensed
activity and properties listed or eligible
for listing in the National Register of
Historic Places. The Act's requirements
are to be implemented in cooperation
with State Historic Preservation Officers
and upon notice to, and when
appropriate, in consultation with the
Advisory Council on Historic
Preservation.
  (c) The Endangered Species Act, 16
U.S.C. 1531 et seq. Section 7 of the Act
and implementing regulations (50 CFR
Part 402} require the Regional
Administrator to ensure, in consultation
with the Secretary of the Interior or
Commerce, that any action authorized
by EPA is not likely to jeopardize the
continued existence of any endangered
or threatened species or adversely affect
its critical habitat.
  (d) The Coastal Zone Management
Act. 16 U.S.C. 1451 et seq. Section 307(c)
of the Act and implementing regulations
(15 CFR Part 930) prohibit EPA from
issuing a permit for an activity affecting
land or water use in the coastal zone
until the applicant certifies that the
proposed activity complies with the
State Coastal Zone Management
program, and the State or its designated
agency concurs with the certification (or
the Secretary of Commerce overrides
the State's nonconcurrence).
  (e) The Fish and Wildlife
Coordination Act, 16 U.S.C 661 et seq.,
requires that the Regional
Administrator, before issuing a permit   .
proposing or authorizing the
impoundment (with certain exemptions),
diversion, or other control or
modification of any body of water.
consult with the appropriate State
agency exercising jurisdiction over
wildlife resources to conserve those
resources.
  (f) Executive orders. [Reserved.]
  (g) The National Environmental
Policy Act, 33 U.S.C. 4321 et seq., may
require preparation of an Environmental
Impact Statement and the inclusion of
ElS-related permit conditions, as
provided in § 122JJ9(c).

§ 12230  Disposal of pollutants into wells,
Into publicly owned treatment works or by
land application (applicable to State NPOES
programs, see § 123.25).
   (a) When part of a discharger's
process wastewater is not being
discharged into waters of the United
States or contiguous zone because it is
disposed into a well, into a POTW, or by
land application thereby reducing the
flow or level of pollutants being
discharged into waters of the United
States, applicable effluent standards
and limitations for the/discharge in an
NPOES permit shall be adjusted to
reflect the reduced raw waste resulting
from such disposal Effluent limitations
and standards in the permit shall be
calculated by one of the following
methods:
  (1) If none of the waste from a
particular process is discharged into
waters of the United States, and effluent
limitations guidelines provide separate
allocation for wastes from that process,
all allocations for the process shall be
eliminated from calculation of permit
effluent limitations or standards.
  (2) In all cases other than those
described in paragraph (a)(l) of this
section, effluent limitations shall be
adjusted by multiplying the effluent
limitation derived by applying effluent
limitation guidelines to the total waste
stream by the amount of wastewater
flow to be treated and discharged into
waters of the United States, and
dividing the result by the total
wastewater flow. Effluent limitations
and standards so calculated may be '•
further adjusted under Part 125, Subpart
D to make them more stringent if
discharges to wells, publicly owned
treatment works, or by land application
change  the character or treatability of
the pollutants being discharged to
receiving waters.
  This method may be algebraically
expressed as:
 where P is the permit effluent limitation, E is
 the limitation derived by applying effluent
 guidelines to the total waste stream. N is the
 wastewater flow to be treated and
 discharged to waters cf the United States.
 and T is the total wastewater flow.

   (b) Paragraph (a) of this section does
 not apply to the extent that promulgated
 effluent limitations guidelines:
   (1) Control concentrations of
 pollutants discharged but not mass; or
   (2) Specify a different specific
 technique for adjusting effluent
 limitations to account for well injection,
 land application, or disposal into
 POTWs.
   (c) Paragraph (a) of this section does
 not alter a discharger's obligation to
 meet any more stringent requirements

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 14174        Federal Register / Vol. 4B. No. 64  / Friday. April 1, 1983 / Rules  and  Regulations
 established under §§ 122.41.122.42.
 122.43. and 122.44.

 Subpart D—Transfer, Modification,
 Revocation and Reissuance, and
 Termination of Permits

 § 122.61 Transfer of permits (applicable to
 State programs, see § 123.25).
   (a) Transfers by modification. Except
 as provided in paragraph (b) of this
 section, a permit may be transferred by
"the permittee to a new owner or
 operator only if the permit has been
 modified or revoked and reissued (under
 § 122.62(b)(2)), or a minor modification
 made (under 5122.63(d)). to identify the
 new permittee and incorporate such
 other requirements as may be necessary
 under CWA.
   (b) Automatic transfers. As an
 alternative to transfers under paragraph
 (a) of this section, any NPDES permit
 may be automatically transferred to a
 new permittee if:
   (1) The current permittee notifies the
 Director at least 30 days in advance of
 the proposed transfer date in paragraph
 (b)(2) of this section:
   (2) The notice includes a written
 agreement between the existing and
 new permittees containing a specific
 date for transfer of permit responsibility,
 coverage, and liability between them;
 and
   (3) The Director does not notify the
 existing permittee and the proposed new
 permittee of his or her intent to modify
 or revoke and reissue the permit. A
 modification under ths subparagraph
 may also be a minor modification under.
 § 122.63. If this  notice is not received.
 the transfer is effective on the date
 specified in the agreement mentioned in
 paragraph (b)(2) of this section.

 § 122.62 Modification or revocation and
 reissuance of permits (applicable to State
 programs, see §  12&25).
   When the Director receives any
 information (for example, inspects the
 facility, receives information submitted
 by the permittee as required in the
 permit (see § 122.41), receives a request
 for modification or revocation and
 reissuance under § 124.5, or conducts a
 review of the permit file) he or she may
 determine whether or not one or more of
 the causes listed in paragraphs (a) and
 (b) of this section for modification or
 revocation and reissuance or both exist
 If cause exists,  the Director may modify
 or revoke and reissue the permit
 accordingly, subject to the limitations of
 paragraph (c) of this section, and may
 request an updated application if
 necessary. When a permit is modified,
 only the conditions subject to
 modification are reopened. If a permit is
revoked and reissued, the entire permit
is reopened and subject to revision and
the permit is reissued for a new term.
See § 124.5(c)(2). If cause does not exist
under this section or § 122.63, the
Director shall not modify or revoke and
reissue the permit. If a permit
modification satisfies the criteria in
§ 122.63 for "minor modifications" the
permit may be modified without a draft
permit or public review. Otherwise, a
draft permit must be prepared and other
procedures in Part 124 (or procedures of
an approved State program) followed.
  (a) Causes for modification. The
following are causes for modification
but not revocation and reissuance of
permits except when the permittee
requests or agrees.
  (1) Alterations.- There are material and
substantial alterations or additions to
the permitted facility or activity which
occurred dfter permit issuance which
justify the application of permit
conditions that are different or absent in
the existing permit
  [Note.—Certain reconstruction activities
may cause the new source provisions of
i \?2?S to be applicable.]
  (2) Information. The Director has
received new information. Permits may
be modified during their terms for this
cause only if the information was not
available at the time of permit issuance
(other than revised regulations,
guidance, or test methods) and would
have justified the application of
different permit conditions at the time of
issuance. For NPDES general permits
(§ 122.28) this cause includes any
information indicating that cumulative
effects on the environment are
unacceptable.
  (3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of amended standards or
regulations or by judicial decision after
the permit was issued. Permits may be
modified during their terms for this
cause only as follows:
  (i) For promulgation of amended
standards or regulations, when:
  (A) The permit condition requested to
be modified was based on a
promulgated effluent limitation guideline
or EPA approved or promulgated water
quality standard; and
  (B) EPA has revised, withdrawn, or
modified that portion of the regulation
or effluent limitation guideline on which
the permit condition was based, or has
approved a State action with regard to a
water quality standard on which the
permit condition was based; and
  (C) A permittee requests modification
in accordance with § 124.5 within ninety
(90) days after Federal Register notice of
the action on which the request is based.
  (ii) For judicial decisions, a court of
competent jurisdiction has remanded
and/stayed EPA promulgated
regulations or effluent limitation
guidelines, if the remand and stay
concern that portion of the regulations
or guidelines on which the permit
condition was based and a request is
filed by the permittee in accordance
with § 124.5 within ninety (90) days of
judicial remand.
  (iii) For changes based upon modified
State certifications of NPDES permits.
see § 124.55(b).
  (4) Compliance schedules. The
Director determines good cause exists
for modification of a compliance
schedule, such as an act of God, strike,'
flood..or materials shortage or other
events over which the permittee has
little or no control and for which there is
no reasonably available remedy.
However, in no case may an NPDES
compliance schedule be modified to
extend beyond an applicable CWA
statutory deadline. See also § 122.63(c)
(minor modifications) and paragraph
(a)(14) of this section (NPDES innovative
technology).
  (5) Variances. When the permittee has
filed a request for a variance under
CWA section 301(c), 301(g), 301(h),
301(i), 301(k), or 316(a) or for
"fundamentally different factors" within
the time specified in § 122.21, and the
Director processes the request under the
applicable provisions of § § 124.61
124.62. and 124.64. -
  (6) 30~(a) toxics. When required to
incorporate an applicable 307(a) toxic
effluent standard or prohibition (see
§ 122.44(b)).
  (7) Reopener. When required by the
"reopener" conditions in a permit, which
are established in the permit under
§ 122.44(b) (for CWA toxic effluent
limitations) or 40 CFR 403.10(e)
(pretreatment program).
  (8)(i) Net limits. Upon request of a
permittee who qualifies for effluent
limitations on a net basis under
§ 122.45(h).
  (ii) When a discharger is no longer
eligible for net limitations, as provided
in § 122.45(h)(l)(ii)(B).
  (9) Pretreatment. As necessary under
40 CFR 403.8(e) (compliance schedule
for development of pretreatment
program).
  (10) Failure to notify. Upon failure of
an approved State to notify, as required
by section 402(b)(3), another State
whose waters may be affected by a
discharge from the approved State.
   (11) Non-Limited pollutants. When the
level of discharge of any pollutant which

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               Federal Register / Vol.  48.  No. 64  / Friday. April 1.  1983 /  Rules and Regulations        14175
is not limited in the permit exceeds the
level which can be achieved by the
technology-based treatment
requirements appropriate to the
permittee under § 125.3(c).
  (12) Use or manufacture of toxics.
When the permittee begins or expects to
begin to use or manufacture as an
intermediate or final product or
byproduct any toxic pollutant which
was not reported in the permit
application under S 122.21(g)(9).
  (13) Notification levels. To establish a
"notification level" as provided in
§ 122.44(f).
  (14) Compliance schedules. To modify
a schedule of compliance to reflect the
time lost during construction of an
innovative or alternative facility, in the
case of a POTW which has received a
grant under section 202(a)(3) of CWA for
100% of the costs to modify or replace
facilities constructed with a grant for
innovative and alternative wastewater
technology under section 202(a)(2). In no
case shall the compliance schedule be
modified to extend beyond an
applicable CWA statutory deadline for
compliance.
   (b) Causes for modification or
revocation and reissuance. The
following  are causes to modify or,
alternatively, revoke and reissue a
permit:
   (1) Cause exists for termination under
 § 122.64, and the Director determines
that modification or revocation and
reissuance is appropriate.
   (2) The Director has received
notification (as required in the permit
see §  122.41(1)(3)} of a proposed transfer
of the permit. A permit also may be
modified to reflect a transfer after the
effective date of an automatic transfer
(§ 122.61(b)) but will not be revoked and
reissued after the effective date of the
transfer except upon the request of the
new permittee.

§ 122.63 Minor modifications of permits.
  Upon the consent of the permittee, the
Director may modify a permit to make
the corrections or allowances for
changes in the permitted activity listed
in this section, without following the
procedures of Part 124. Any permit
modification not processed as a minor
modification under this section must be
made for cause and with Part 124 draft
.permit and public notice as required in
§ 122.62. Minor modifications may only:
  (a) Correct typographical errors;
 • (b) Require more frequent monitoring
or reporting by the permittee;
  (c) Change an interim compliance date
in a schedule of compliance, provided
the new date is not more than 120 days
after the date specified in the existing
permit and does not interfere with
attainment of the final compliance date
requirement; or
  (d) Allow  fey a change in ownership
or operational control of a facility where
the Director determines that no other
change in the permit is necessary,
provided that a written agreement
containing a specific date for transfer of
permit responsibility, coverage, and
liability between the current and new  .
permittees has been submitted to the
Director.
  (e)(l) Change the construction
schedule for a discharger which is a new
source. No such change shall affect a
discharger's obligation to have all
pollution control equipment installed
and in operation prior, to discharge
under § 122.29.
  (2) Delete a point source outfall when
the discharge from that outfall is
terminated and does not result in
discharge of pollutants from other
outfalls except in accordance with
permit limits.

§ 122.64  Termination of permits
(applicable to State programs, see
5 123.25).
   (a) The following are causes for
terminating a permit during its term, or
for denying  a permit renewal
application:
   (1) Noncompliance by the permittee
with any condition of the permit;
   (2) The permittee's failure in the
application  or during the permit
issuance process to disclose fully all
relevant facts, or the permittee's
misrepresentation of any relevant facts
at any time; or
   (3) A determination that the permitted
activity endangers human health or the
environment and can only be regulated
to acceptable  levels by permit
modification or termination.  '
   (4) A change in any condition that
requires either a temporary or a
permanent reduction or elimination of
any discharge controlled by the permit
(for example, plant closure or
termination of discharge by connection
to a POTW).
   (b) The Director shall follow the
applicable procedures in Part 124 or
State procedures in terminating any
NPDES permit under this section.

Appendix A—NPDES Primary Industry
Categories
  Any permit issued after June 30.1981 to
dischargers in the following categories shall
include effluent limitations and a compliance
schedule to meet the requirements of section
301(b)(2)(A).  (C). (D). (E) and (F) of CWA.
whether or not applicable effluent limitations
guidelines have been promulgated. See
§5122.44 and 122.46.
Industry Category
Adbesives and Sealants
Aluminum Forming
Auto and Other Laundries
Battery/Manufacturing
Coal Mining        ,
Coil Coating
Copper Forming
Electrical and Electronic Components
Electroplating
Explosives Manufacturing
Foundries
Gum and Wood Chemicals
Inorganic Chemicals Manufacturing
Iron and Steel Manufacturing
Leather Tanning and Finishing
Mechanical Products Manufacturing
Nonferrous Metals Manufacturing
Ore Mining
Organic Chemicals Manufacturing
Paint and Ink Formulation
Pesticides
Petroleum Refining
Pharmaceutical Preparations
Photographic Equipment and Supplies
Plastics Processing
Plastic and Synthetic Materials
  Manufacturing
Porcelain Enameling
Printing and Publishing
Pulp and Paper Mills
Rubber Processing
Soap and Detergent Manufacturing
Steam Electric Power Plants
Textile Mills
Timber Products Processing

Appendix B—Criteria for Determining a
Concentrated Animal Feeding Operation
(§ 12X23)
  An animal feeding operation is a
concentrated animal feeding operation for
purposes of § 122^3  if either of the following
criteria are met
  (a) More than the numbers of animals
specified in any of the following categories
are confined:
  (1) 1.000 slaughter and feeder cattle.
  (2) 700 mature dairy cattle (whether milked
or dry cows),
  (3) 2.500 swine each weighing over 25
kilograms (approximately 55 pounds),
  (4) 500 horses.
  (5) 10.000 sheep or lambs,
  (6) 53.000 turkeys.
  (7) 100.000 laying hens or broilers (if the
facility has continuous overflow watering).
  (8) 30,000 laying hens or broilers (if the
facility has a liquid manure system),
  (9) 5,000 ducks,  or
  (10) 1.000 animal units; or
  (b) More than the  following number and
types of animals are confined:
  (1) 300 slaughter or feeder cattle.
  (2) 200 mature dairy cattle (whether milked
or dry cows).
  (3) 750 swine each weighing over 25
kilograms (approximately 55 pounds).
  (4) 150 horses,
  (5) 3.000 sheep or lambs,
  (6) 16,500 turkeys.
  (7) 30.000 laying hens or broilers (if the
facility has continuous overflow watering),
  (8) 9.000 laying hens or broilers (if  the

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 14176	Federal  Register / Vol. 48. No. 64 /  Friday.  April  1.  1983  / Rules  and Regulations
 facility has a liquid manure handling system).
  (9) 1.500 ducks, or
  (10) 300 animal units;
 and either one of the following conditions are
 met: pollutants are discharged into navigable
 waters through a manmade ditch, flushing
 system or other similar man-made device; or
 pollutants are discharged directly into waters
 of the United States which originate outside
 of and pass over, across, or through the
 facility or otherwise come into direct contact
 with the animals confined in the operation.
  Provided, however, that no animal feeding
 operation is a concentrated animal feeding
 operation as defined above if such animal
 feeding operation discharges only in the
 event of a 25 year, 24-hour storm event.
  The term "animal unit" means a unit of
 measurement for any animal feeding
 operation calculated by adding  the following
 numbers: the number of slaughter and feeder
 cattle multiplied by 1.0. plus the number of
 mature dairy cattle multiplied by 1.4. plus the
 number of swine weighing over 25 kilograms
 (approximately 55 pounds) multiplied by 0.4.
 plus the number  of sheep multiplied by 0.1,
 plus the number  of horses multiplied by 2.0.
  The  term "manmade" means constructed
 by man and used for the purpose of
 transporting wastes.

 Appendix C-Criteria for Determining a
 Concentrated Aquatic Animal Production
 Facility (§ 122.24).

  A hatchery, fish  farm, or other facility is a
 concentrated aquatic animal production
 facility for purposes of § 122.24 if it contains.
 grows, or holds aquatic animals in either of
 the following categories:
  (a) Cold water fish species or other cold
 water aquatic animals in ponds, raceways, or
 other similar structures which discharge at
 least 30 days per year but does not include:
  (1) Facilities which produce less than 9,090
 harvest weight kilograms (approximately
 20,000 pounds) of aquatic animals per year
 and
  (2) Facilities which feed less than Z272
 kilograms (approximately 5,000 pounds) of
 food during the calendar month of maximum
 feeding.
  (b) Warm water fish species or other warm
 water aquatic animals in ponds, raceways, or
 other similar structures which discharge at
 least 30 days per year, but does  not include:
  (1) Closed ponds which discharge only
during periods of excess runoff; or
  (2) Facilities which produce less than
45,454 harvest weight kilograms
(approximately 100.000 pounds]  of aquatic
animals per year.
  "Cold water aquatic animals" include, but
are not limited to. the Salmonidae family of
fish; e.g., trout and  salmon.
  "Warm water aquatic animals" include, but
are not limited to, the Ameiuride,
Centrarchidae and Cyprinidae families of
fish; e.g.. respectively, catfish, sunfish and
 Appendix D—NPDES Permit Application
 Testing Requirements (5 122J21).

 TABLE I.—TESTING  REQUIREMENTS  FOB OR-
  GANIC  Toxic  POLLUTANTS  BY  INDUSTRIAL
  CATEGORY FOR EXISTING DISCHARGERS
Industrial category
Adhesive* and
Aluminum Forming 	
Auto and Other
Laundries 	
Battery Manufacturing..
Coal Mono 	
Coil Coating 	
Copper Forming 	
Electnc and
Electrons
Components .
Electroplating 	
Explosives
Manufacturing 	
Gum and Wood
Chemicals 	 « 	
Inorganic Chemicals
Manutactunng 	 	
Iron and Steel
Leatner Tanning and
Fmismng 	
Mechanical Products
Nonterrous Metals
Manufacturing 	
Organic Chermcals
Paint and Ink
Pesticides 	
Petroleum Retiring 	
Pharmaceutical
Photographic
Equipment «nd
Supplies 	
Plastic and Synthetic
Materials
Manufacturing 	
Plastic Processing 	
Printing and
PubHhtftg , 	 .,
Pulp and Paper Mils-
Soap and Detergent
Steam Eleetnc Potmr
PUnre
TexUeMiUi 	
TWflbBf Products

GC/MS Frmcton >
Vot>IU«
•
•
•
*
•
Acid
•
Base/
neutral
'
•
•
Pesn-
cxle
*
•
•
4 .
  'The toioc pollutants n each traction are haled m TaMe II.
  •Testing raqund.
Table H.—Organic Toxic Pollutants in Each
of Four Fractions in Analysis by Gas
Chromatography/Mass Spectroscopy (GS/
MS)
Volatile*
 IV acrolein
 2V acrylonitrile
 3V benzene
 SV bromoform
 6V carbon tetrachloride
 7V chlorobenzene
 8V chlorodibromomethane
 9V cnloroethane
10V 2-chioroelhylvinyl ether
11V chloroform
12V dichlorobromomethane
14V 1.1-dichloroethane
 15V  1.2-dichloroethane
 16V  1.1-dichloroethylene
 17V  1.2-dichloropropane
 18V  1,2-dichloropropylene
 19V  ethylbenzene  ^
 20V  methyl bromide
 21V  methyl chloride
 22V  melhylene chloride
 23V  1.1.2.2-tetrachloroethane
 24V  tetrachloroethylene
 25V  toluene
 26V  1.2-trans-dichloroethylene
 27V  1.1.1-fnchloroethane
 28V  1,1,2-trichloroethane
 29V  trichloroethylene
 31V  vinyl chloride

 Acid Compounds
  1A  2-chlorophenol
  2A  2.4-dichlorophenol
  3A  2,4-dimethylphenol
  4A  4.6-dinitro-o-creso!
  5A  2.4-dinitrophenol
  6A  2-nitrophenol
  7A  4-nitrophenol
  8A  p-chloro-m-cresol
  9A  pentachlorophenol
 10A  phenol
 11A  2.4.6-trichloropheno!
 Base/Neutral
  IB  acenaphthene
  2B  acenaphlhylene
  3B  anthracene
  4B  benzidine
  SB  benzo(a)anthracene
  6B  benzo(a)pyrene
  7B  3,4-benzofluoranthene
  8B  benzo(ghi)perylene
  9B  benzo(k)fluoranthene
 10B  bis(2-chloroethoxy)methane
 11B  bis(2-chloroethyl)ether
 12B  bis(2-chloroisopropyl)ether
 13B  bis (2-ethylhexyl)phthalate
 14B  4-bromophenyl phenyl ether
 15B  butylbenzy! phthalate
 16B  2-chloronaphthalene
 17B  4-chlorophenyi phenyi ether
 18B  chrysene
'19B  dibenzo(aJi)anthracene
 20B  1.2-dichlorobenzene
 21B  1.3-dichlorobenzene
 22B  1.4-dichlorobenzene
 23B  3.3'-dichiorobenzidine
 24B  diethyl phthalate
 25B  dimethyl phthalate
 26B  di-n-butyl phthalate
 27B  2.4-dinitrotoluene
 28B  2.6-dinitrotoluene
 29B  di-n-octyl phthaiate
 30B  1.2-diphenylhydrazine (as azobenzene)
 31B  fluroranthene
 32B  fluorene
 33B  hexachlorobenzene
 34B  hexachlorobutadiene
 35B  hexachlorocyclopentadiene
 36B  bexachloroethane
 37B  indeno(1.2,3-cd)pyrene
 38B  isophorone
 39B  napthalene
 40B  nitrobenzene
 4lB  N-nitrosodimethylamine
 42B  N-rutrosodi-n-propylamine
 43B  N-nitrosodiphenylamine
 44B  phenanthrene
 45B  pyrene

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                Federal  Register / Vol. 48, No. 64 / Friday. April 1, 1983  /  Rules and Regulations
                                                                               14177
4GB  1.2,4-trichlorobenzene

Pesticides
 IP  aldrin
 2P  alpha-BHC                      -
 3P  beta-BHC
 4P  gamma-BHC
 5P  delta-BBC
 6P  chiordane
 7P  4.4'-DDT
 8P  4.4'-DDE
 9P  4,4'-DDD
10P  dieldrin
IIP  alpha-endosulfan
12P  beta-endosulfan
13P  endosulfan sulfate
14P  endrin
ISP  endrin aldehyde
16P  heptachlor
17P  heptachlor epoxide
18P  PCB-1242
19P  PCB-1254
20P  PCB-I221
21P  PCB-1232
22P  PCB-1248
23P  PCB-1260
24P  PCB-1016
25P  toxaphene

Table III.—Other Toxic Pollutants: Metals.
Cyanide, and Total Phenols
Antimony. Total
Arsenic. Total
Beryllium. Total
Cadmium. Total
Chromium. Total                      ,
Copper, Total
Lead. Total
Mercury. Total
Nickel/Total"
 Selenium, Total
 Silver. Total
 Thallium. Total
 Zinc. Total
 Cyanide. Total
 Phenols. Total

Table IV.—Conventional and
 Nonconventional Pollutants Required To Be
Tested by Existing Dischargers if Expected to
 be Present
 Bromide
 Chlorine. Total Residual
 Color
 Fecal Coliform
 Fluoride
 Nitrate-Nitrite
 Nitrogen, Total Organic
 Oil and Grease
 Phosphorus, Total
 Radioactivity
 Sulfate
 Sulfide
 Sulfite
 Surfactants
 Aluminum. Total
 Barium. Total
 Boron. Total
 Cobalt. Total
 Iron, Total
 Magnesium. Total
 Molybdenum. Total
 Manganese. Total
 Tin. Total
 Titanium. Total
 Table V.—Toxic Pollutants and Hazardous
 Substances Required To Be Identified by
 Existing Dischargers if Expected To Be
 Present
 To\ic Pollutants
 Asbestos

 Hazardous Substances
 Acetaldehyde
 Allyl alcohol
 Allyl chloride
 Amyl acetate
 Aniline
 Benzonitrile
 Benzyl chloride
 Butyl acetate
 Butylamine
 Captan
 Carbarvl
 Carbofuran
 Carbon disulflde
 Chlorpyrifos
 Coumaphos
 Cresol
 Crotonaldehyde
 Cyclohexane
 2.4-D (2.4-Dichlorophenoxy acetic acid)
 Diazmon
 Dicamba
 Dichlobenil
 Dichlone
 Zi-Dichloropropionic acid
 Dichlorvos
 Diethyl amine
 Dimethyl amine
 Dintrobenzene
 Diquat
 Disulfoton
 Diuron
 Epichiorohydrin
 Ethanolamine
 Ethion
 Ethylene diamine
 Ethylene dibromide
. Formaldehyde
 Furfural
 Guthion
 Isoprene                 :
 Isopropanolamine
 Kelthane
 Kepone
 Malathion
 Mercaptodimethur
 Methoxychlor
 Methyl mercaptan
 Methyl methacrylate
 Methyl parathion
 Mevinphos
 Mexacarbate
 Monoethyl amine
 Monomethyl amine
 Naled
 Napthenic acid
 Nitrotoluene
  Parathion
  Phenolsulfanate
  Phosgene
  Propargite
  Propylene oxide
  Pyrethrins
  Quinoline
  Resorcinol
  Strontium
  Strychnine
  Styrene
2.4,5-T (2.4,5-Trichlorophenoxy acet