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
ANALOGOUS- /
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
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
MORE
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
-------
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:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
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
-------
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:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
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
-------
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
EQUIV-
ALENT
MORE I
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 8 of 11
-------
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)
ANALOGOUS /
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 9 of 11
-------
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)
ANALOGOUS- /
STATE CITATION
" •STATE 'ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
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
-------
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
-------
54 FR 33376-33398
Revision Checklist 64
-------
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
-------
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.
-------
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
-------
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
-------
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.
-------
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
-------
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
-------
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
-------
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
-------
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 *>
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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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36596
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 "
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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
-------
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
-------
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
-------
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
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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
-------
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.
-------
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.
-------
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
-------
•
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
•MfaflhtalSn.2.
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:
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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»
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|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
-------
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
-------
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
-------
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).
-------
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)
-------
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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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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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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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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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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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 |