United States
Environmental Protection
Agency
Solid Waste and
Emergency Response
(5305W)
EPA53O-R-97-O27
NTIS: PB97-1 76 929
April 1997
Response to Comments
Document:
Land Disposal Restrictions - Phase IV:
Treatment Standards for Wood
' '' - ' \ "
Preserving Wastes, Paperwork
Reduction and Streamlining, Exemptions
from RCRA for Certain Processed
Materials, and Miscellaneous Hazardous
Waste Provisions
Printed on paper that contains at lest 20 percent postconsumer fiber
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. This document contains responses to public comments on issues addressed in today's final
rulemaking, "Land Disposal Restrictions Phase IV: Treatment Standards for Wood Preserving
Wastes, Paperwork Reduction and.Streamlining, Exemptions from RCRA for Certain Processed
Materials, arid Miscellaneous Hazardous Waste Provisions". Additional issues may have been
contained in public comments received by EPA on the proposed rule, supplemental proposed rule,
or notice of data availability. Concurrent to today's*final rulemaking, EPA is reproposing
portions of the Phase IV rulemaking. As a result, the issues listed below are not addressed in this
response to comments document, but will be considered and responded to in future rulemakings..
. GRAB- Grab vs. composite sampling for metals . , '.
. , KO61 - Achievability of TC/K061 treatment standards ' .
FOUN- ' Achievability of metal treatment standards in metal foundry sand
FILL- > Use of hazardous waste as "fill"
TC Metals - Proposed treatment standards for newly identified TC metal wastes
,, Bevill- Proposed treatment standards for mineral processing wastes
HWIR - Coordination of the LDR program with the proposed Hazardous Waste
Identification Rule ' , <
UHCS- Establishment of regulations for Underlying Hazardous Constituents in TC
metal wastes . . ,,
SOIL - Treatment standards for metals in soils and contaminated debris
' RAD I- Comment on radioactive mixed wastes
AUTHr State Authority . ' ;
MISC - Miscellaneous Issues not applicable to .today's final rulemaking
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List of Phase IV Land Disposal Restriction Codes,
Description, and Location by Page Number
Code
Description
Page Number
AMEN
EPA proposed maximum acceptable concentrations'for
constituents in wastes entering surface impoundments. The
targeted constituents are those that are resistant to biological
degradation.
1
CLNP
The Agency proposed-a number of changes to the current Part
268 regulatory language so that the language would be easier
to comprehend. Other language changes were proposed to
remove errant references based on the new language. (For the
purposes of the minirule, only changes in §268.7 are . -.
addressed.) . ; '
39
EQUV
EPA proposed three different options 'for. addressing the risks
due to cross-media releases in Subtitle D (nonhazardous)
surface impoundments that manage decharacterized wastes.
The three options place a range of controls on the treatment
of underlying hazardous constituents at different points in the
surface impoundment treatment process. Where the controls
are placed depend upon the extent that treatment is considered
equivalent .to usual RCRA treatment.
229 '
F039
Comments on the proposed addition of UTS constituents to
the list of F03 9 regulated constituents
82;
MISC
Any portion of a comment'submitted to the Agency which did
not correspond to one of the major issues. This table include
only those issues addressed in today's final rulemaking.
833
POG
To measure the underlying hazardous constituent (UHC)
levels in wastes destined for decharacterization and treatment,
in surface impoundments, the Agency proposed that testing of
UHC levels occur when the waste is initially generated (the
"point of generation"). " ' :
865
.
POLM
» : .
EPA proposed polymerization (POLYM) treatment as an
alternative to CMBST or RORGS for those high-TOC D001
wastes which are chemical components in the manufacture of
plastics^ POL YM requires the addition of a polymerizing :
component or catalyst to the discarded high-TOC D001
monomer, stream intended for land disposal. . '
947
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Code
SCRP
WOOD1
WOOD2
WOOD3
WOOD4
WOODS
WOOD6
WOOD?
WOODS
WOOD9
WOOD 10
WOOD 11
WOOD 12
RIA
Description -,;''.' ...-.' : ,' :',-.. .' '''. / ..
The Agency proposed to amend the definition of solid waste
to exclude processed scrap metal and containerized shredded
circuit boards that are bing recycled. - :-.
The Agency proposed to specify CMBST or INCIN standards
for wood preserving wastes.
The Agency requested comment on the similarity between
F032 and F024. , l , -
The Agency proposed to regulate arsenic and chromium in
wood preserving wastes.
The Agency proposed to regulate dioxins and furans in wood
preserving wastes. . . '
The Agency proposed to regulate dioxin and furans in wood
preserving wastes. These comment address the Agency's
proposal to establish air emission limitations.
EPA proposed to regulate dioxins and furans in wood
preserving wastes. These comments address analytical issues.
EPA proposed to regulate dioxins and furans in wood
preserving wastes. These comments. address the achievability
of the proposed standard in hazardous waste incinerators that
meet 99.99% and 99.9999% destruction. '
The Agency proposed to regulate various constituents in
wood preserving wastes. These comments address the
calculation of the treatment standards.
Wastewater Treatment Standard
Wood Preserving Waste Contaminated Media/Remediation
Dioxin/Furan Stigma and Capacity Issues
Miscellaneous Issues ,
Regulatory Impact Analysis comments
Page Number
993
1103.
1127
1137
: 1151
1173
1199
1213
1225
1237
1241
1255
1287 '
1309
11
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Index of Commenters and Location of Comment, By Issue
' ' < ' . ' ' ' ' '
Aciylonitrile Group ..--.'. .
.EQUV :....":....'..:., ;'. , : 345
AFS, ' '.' ' ,' ' .. '
MISC . .'.: , -.... ... . :-,.. . . -. . . .'.'. . 854 :-
' - '*
Amerada Hess Corp. " . , .
EQUV ....-./ :...,:...: '..,.:...'.'.-...,. ..... 588
American Dental Association . . - .
, ' EQUV ' .". : : .; ..... .-545 '
poo ..;:.; , :....:.;. .-. :...-.-...;". .903
American Forest & Paper Association
AMEN ' -. .-. 1,2
EQUV , : .".... .470, 471, 474-479, 485, 489, 492, 498, 501, 503
American Gas Association ' '" . ' ^ .
MISC. ...."...;..."./;.._........,../..... ....'.... .,'... ,,:,850 -
American Industrial Health, .. '
EQUV ...'."...,.-.!-.. -.'.. I:..,.,.'.-:..'.":. ..V.... ,.523,524,526
American Iron & Steel Institute . '.-,..
. AMEN. ..'...:.; .: '.,.'....." :.:..'...-. 16
'CLNP . .: : -....;' :....:.:.. '. 73,215
EQUV - . ' 417, 419, .421, 423^ 436, 438, 440; 443, 447, 453, 455, 458
.POG ..'.,. :,' '...:'.: .; ": . 891,893,895
American Petroleum Institute
'' AMEN.... :. .' ' ' .."..: ^,24
'EQUV :......... : ...\:- : -..:-.''..." 577.
, POG". ; '.:-.. :..-.. ..:..- ....'..'.'..'.....- \ 907,909
Arctco , . .' '-...-.
POLM .,'....- V :. ...:',:,. -.. .." .. .951
Asarco '
' ' AMEN./. .'..". ."..."..-....-.' ':... : 7
' EQUV . . . . ;..-;..' - : . .' . / 254;260
SCRP;., :.. .\..: -.,..-.-..' ...:. >,. ........ 1063
Association jof Battery Recyclers . ' .
' . sckp.;: . ; '. ... .<.....' '.,..; 1101
Association of Container '.
SCRP '.'..: ; : .. ..' '....-. 1028, 1030
ASTSWMO
-'' : 'CLNP .....; '. '.. ,...,...: ,. ..',. .V.... 119
. EQUV . , -.'. ,. . . '. .- '. .-. .'. . .' ; .>, . 664,666,667
F039 . .V. ...,-.:..'.:..' !'...'. '.:...,... -.:: 828
POG ...:..'.:"... .:: '../,....: ... ... 91?
POLM '.'. -.. ., >.' ! 977^
111
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AWPI , ,
WOOD2 ...: ;..:'.-. '..- ...:.-.; 112?
WOODS .......: . -...'.' ,..'. 1148, 1150
WOOD4 ; :....... 1159
WOOD6 ..;.'...:... ." ...:.....-./ 1204
WOOD? , ..: .''.' .....:.. 1223
WOODS , % ;..-../...:..- ..'........ . 1229
% WOOD9 '...'.. 1237
WOQD11 ...;...'. i 1263, 1265, 1267
Battery Council International
CLNP ..: : -....." ..203
MISC. . . .- : : ;.-... .'....'..-.. .-. . . 848,858
BeazerEast "
WOOD1 .:........ 1116, 1118
WOODIO. ...,...:....'...: '...: 1241,1247,1250,1252
WOOD11 ..-..-'... . 1281, 1283
WOOD12 ;......', : . 1297,1299
WOOD3 -.....:.... 1137,1139,1142
WOOD4 .'..,.'... .-. :.. 1169
WOOD6 . : .'.-." . . '. . .' ...:..:...'...;".....- 1199, 1201
WOOD? ......'..!....'...:'.....:...'....,.:..;..-....» '... ..."1213
Blue Water Boats
POLM . : ../ . 957
Boston Whaler
POLM , .'....,..-...' .:.:-.: '. : ' .'. . .'..-991
BP Chemical
EQUV ! '....... 547, 549, 551/554-556
MISC. .. '.... ;. ...:..'./ :...:., 847
POG . ...:... .-. .-. . . 904, 905
BPOil
AMEN ....,.:.....' :: . . . - 6
- EQUV . .. : -.- 232, 236
MISC..;..: '....-, - '.....,. ........ . "841
. POG , , '. 866-868
Chemical Waste Management
" WOODS-.:.........,. ....,.-. :...\ 1195
Chemical Manufacturers Assn
"' CLNP ,:.-... , , 172,216,222
EQUV ........: ' 751, 756, 782, 784, 786, 789, 793, 796, 798,801, 802
' MISC '/. . . . '...... ':.... 839, 857
POG ' . : . . v. .937,938,940,945
POLM ',.-..- I-,.... 987
WOOD3 ' .' . . . !..' 1144
IV
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Chemical Manufacturers Assn (cont.X
WOOD6 . . . . 1208
WOODS :........:...... ;..'.-,.: 1232
WOOD12 ......'...:... ...: ....'..; .-1305
Chemical Waste Management
F039 ..'.. .:.,; '..:..' .:...-. ...": , 824
AMEN . . -.'. .' '..... :. ., '....' . 19
CLNP ... .' ;....:..:..:.... 77, 185, 187; 189-191
. EQUV .-. -. .....-:.-,.:../..... :. . .; 511'.
" F039 ..:.....: '.'. : . .'. .r .'.. 824.
POLM . .'. . : ... :.-.". '..,./ '.,-. v. .'. . . 962
.SCRP.. ..- :.. ,. .". '...... 1023, 1024
WOOD4 ...: ; '.'.'. .. . . ....-:. .:..:.: ... .... ... .1162
Chevron ...-.
AMEN ...'..; : '.-.' '. '..-.. .-.'.. . . : .... ... 33
EQUV , . .' '.:.'.....; .' ....:,-..,....'.' .-.:.... 738 '
POG . :'_. ............ ''. .'.': , . 935
Ciba-Geigy Corp. . - "'
POLM .'.' '. .- I.'... -.*. .:...:.!' :' ......'... '. . 981, 983
CKRC'-'- .''" ' - ". , . ', ' ,".. v
WOOD! ', . 1119,1121
WOOD2 . . -....: ' '. .1132
WOODS .: '..' ..- ......:. ;..,.! 1190,1191
WOODil . .. :: . . -., .,:". c '......:... 1301
CMA Carbon bisulfide Panel
EQUV .'.....,:', . . ......:...,...'... ..381.
' MISC.......',". :...; ...,- .';...:..'.'.. 844
POG .:'...".....' -...;. / ' -888
CMA UIC Task Force ' \ ' .
, . EQUV ........,.....,....;......,.:... '....:.....'.."..'.:.,. 382 .
. CLNP , " ., ".'..... .' 72, 223, 224
EQUV ,. :. '..'....>. ..: ..... :391,394,395
.MISC . .\-. .,- . . . :...... . . '..'..,./. ; : 837
POG ! '.':".. :'.: . :'., -.-. 889,890
CONDEA
WOOD2 ...-.: .". / :'.;-. 1136
WOODS .../-.-.' '. ..':'. '. '....: H96
Copper & Brass Fabricator
SCRP. .:'.:.,-...'. ;.:.::..'....:..; '._..--. 1071,1074
Courtaulds Fibers , .
AMEN.... ; '. ;.:..- '...:..-.'..... 35
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Department of Defense .
CLNP '.' '. v ;..-.. .... .<109
. EQUV, :.....:..... !....-.' ... .-'. 598
Department of Energy
EQUV ' ...... '354
AMEN. .-....: -....' '. . ,x. ; , 14 .
CLNP ......'. : ".. , '.' 59,60,62,66-71, 178,214 '..
EQUV /. -354,356,370,372,375,377,379 .
F039 . . . : ' - ...... '..:.. .822
POG .-..-. ..'.'.. \.-:...' : ,.^ 883, 884, 886
POLM :...,.: '..'..';.'. : 960
SCRP . 997, 998, 1000, 1003
Distilled Spirits Council .'".. '
EQUV :..........;. .:...:..- 818 '
Dow .Chemical , '' v
AMEN . :,- .' 23
CLNP,...: : , 108
EQUV . . :....:.. . . : . 560
F039 ': ,. . : 827
POG ;. .' ....: .906
WOOD1 '....- : '....1111
WOOD2V.V .' :-.:.. ' : 1129.
WOODS :....- ... : 117.6, 1178, 1181
WOOD11 ' ...:..'... ' 1279
WOOD12 . . . : ......: ' '. .' '. . 1290
. --!. ' ' "
Dupont '.-;.
\yboD5 :...:...;. 1192
wboDi2 ,.-..,; ,.;. .:: 1302 "
Eastman -
x' AMEN' , ,....; '...'....-.:..'. :...... ''..,....29
EQUV . 599, 601,603, 607, 611, 618
POG ... 7 ;'.,.'...'.._....:...- 912; 916
Eastman Kodak Company
CLNP :.....- ; ':...-.:' -...196,197
SCRP.. ,-.-. ..'. . /." . . . .-. 1032-1034, 1036,
EOF . .
' AMEN"...,. ...:.. .' '...-.-. .30
CLNP '.'...- 116, 117
EQUV : :..'. 639, 641, 659, 661, 663
WOOD12 .... .-.:.: . . .: '.i.'. ...-...' 1292, 1294
WOODS .:...' '. ! .,' :.:..' ..:..;.'. 1186
VI
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Electronics Industries Assn . -V . . ' , '
SCRP ' .'.... .......: . .-. ... ../..' 1093, 1094, 1096 .
Elf Atdchenv .
CI:NP ....: .-,....,..-..' .....;..:.:' .' in
POG :...'.;.;:...-...'.-.,..;...../..:..,. 911
Env, Technologies Intl
WOOD12 '. ..".;..- .'.;'.-: 1300
Exxon ' '
AMEN . . :.. . . .... . . ,.' '. :.... . : '.'.'' . 10
Exxon Chemicals Americas . ' .
: - CLNP .'....;...-.'.' ',.':..: } '. -..;....., .226
- ,'.. ',EQUV : '. .' ''.:. 536,539,543 '.
POG ...'..:. ' .......^8.97-899,901
Exxon Company USA , '.''- " .
EQUV :...,: .-,... ..".261
, ' CLNP v ....*........ ,....../. 39,.225
EQUV ! .- . ..:-... ,.'..... .'.... ... 261*263, 275, 278, 280
Florida DEP , , . .
CLNP ..;<... '..-..;.'!-..''..,...' .' .' :.-...;..,-..:. 45,47-50
EQUV .'. ....'..:...,:..,...'. ' 214, 229," 382, 1267 '
MISC . : ......:. ,\ . ,: -. .;833, 835
, POLM' .....-.'...-., ' .' ' '.",.. .'...- 954
FMC' - / . : ' ' -
' -; EQUV '...: .- ' ' : ...675.
- AMEN ..'...-. -.'.. .'.:...'. -.-. . .- '....::....:.:.: 31
. CLNP ,..'..,... :...:..- '. 121,220
. EQUV :..'.......'...-..; : ........'... 668, 678, 684'
.. POG...; '..'-."..'.'.: "......"..:.,...' . ... . .'.. . . 918, 943 .
Ford . -
. CLNP '.,....' :-. ..:.',. :. . : 169-171.
EQUV ...:....; ..'. ;.-...'. ..:...'....-...:.. '749
POG . . .-.- : .'.. :. -..:..' /. 936
GE . ': '-'..' . ' .' '.:''".
* EQUV -. .' ......: ...'711,720,722,724
. . , POG '......'..-..'... ' -.-. .. ....".._... 927,929,93.1
General Motors Corp. > ^
CLNP ...'..-.'..'..'..:.'...?' ''.'.'.'...:..:...'..-.:...: 130
EQUV , -...- '..:.......:...:.: ,'....,..:. 702, ?oe, 7094
POG : '...:. :. ... ..-921,924,925
SCRP ........' . .. - 1019 '
Georgia Department of Natural Resources, EPD
WOOD11 .'...:-..'.':' -.... :,....'....-......' '. ,1285
vn
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Georgia Pacific . . , .
EQUV .', ....... ; 284,286'
Godfrey Marine , . . . ' ' : .
POLM .... : .. - .'..,' 953
Grady White Boats ...
POLM : .....'. '..'.';..'/..>.... 947
. Hazardous Waste Management
.AMEN '...,'...:....: :....: '..'... 32
CLNP 131-133,136,138-145,147,148,150,151,153-156,158-167
EQUV ' .' .' ' 725
F039 ...:.: '...." ,:.,.' " '.. .' 829
- POLM ..:.;.,../: '....;...-.'....!..... :.....'.....'979
WOODH ...'...;.:.. v : 1275
wooD4 .........V...'.1,., ....:.-...,..!... 1166
Heritage Environmental
. CLNP . ; .' ,...;....: '...:.-... 123-129, 176
EQUV '.:...:..'...:..:....''.....'....: ' ! 698
SCRP. .:..,....'..' . . '. .993,996
Horsehead Resource Development
SCRP...'...; .-/.' ' :...- .".: ,.1092
Inco Ltd., Internal'! Met > , . .
CLNP :.....' :'. ' . 207,208
SCRP . . . : ' . '. '.'.... 1064
Institute of Scrap Recyclers
: SCRP . .'. .... :-1039, 1043, 1046, 1048, 1052, 1054, 1056
International Precious Metals Institute
SCRP,. :......, 1037
n>c
. CLNP. . . . . ! .' . '.....-.: 181
SCRP ! .- .- . 1006, 1008, 1010
J.H.Baxter
WOODL ! ' : 1124 =
WOOD11 . . . .: . -. 1270, 1272, 1286
WOOD12 .... .. ' '..'. - .-.'' 1304
Kennecott Energy Co. , . ,
' ' CLNP . ! - : . :. .'. . 201,202
Kodak
CLNP .: '.- -.- 53,54
EQUV,...: !..-...' :,..'... .... 238
MISC. . ! ; .'.'. ...-..- :- "836
POG -...-...'."....: : ^.869
Vlll
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Laidlaw -
AMEN .:....' . .-r - ,/ 22 ,
CLNP "... ..;. '. ,\ . , - ...:..; 1-94
EQUV ..,.,.:.:..' .':.......:; :.:.......'...: '...:. 557
/ POLM .; I/..', i:-. .:/............ , .' ..964
Larson " . N - .
POLM .*.- : ,'. . .'., ........... 950
Magma Copper Co . '. '.'"'':
' - EQUV . . ; '. V. :.. - '.'... ..!... .-.,341-
Merck ' ... .
CLNP '. ,../. v..;.:..,/-...'.-.....:....-. ;:....\:.:....,.. 40,75
POLM ..:'. . . .'.,-. : ^ .,...'.'. .-. ..-.., 961
Metals Industries Recycling .
- ' '. CLNP '. .-.'.- -. .'.- '.. \ :. . . . .'. .-..-_.' 198, 199
SCRP ', :..:.... ".,-..... :. .. 1058,1060
Mobil Oil ,
AMEN/ ,'. ' %- .....-...:..;.'..."..., ,: 8
. . ' EQUV ....':.. : ...'..:...'.. 242, 244, 246, 247
'; '-MISC :.'.. ;.' :/.-....-..' .-.. ..' ; : ."842
Molten Metal Technology .
EQUV ../... ( ', V: :....:.....'...' 514
SGRF. . . . ! ' . .:. :.'..:'-..*. 1090
Monsanto , . '
.-.' EQUV....; -. ;......,.....;...:.....: ...'.... -.. 467 .
MISC. ....:...::.'....:.':.'.'..:-:....: M -.:..-,........... 846'
National Marine Manufacturers
''. ' POLM :.. ,.: '... 956
National Mining Association . , .
EQUV: ...:'..-: ....,; '..:..,.. '.-.; '.....'509.
National Petroleum Refiners j ,
, EQUV ....'........- .- ,. . .'. :. . 347, 349, 351,353
Natural Gas Pipeline Comp " . ," ,
' MISC. .' ! ...-..: . .- . . 845
NewYorkDEC > ' ' ' ^
' , CLNP .:....;; : ; -.'... ' 51,52
F039 . .'.'.>.'..."...: : . .:..:.....; ., .. . 82l.
POLM . . ;; -....' .....: .-.' 959
NY State Dept. of Environ.
CLNP ..:...' -....: : -....-...: ; «... .... .; 182
i SCRP ,.-....'... . . . . . 1013, 1016
IX
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Occidental Chemical Co. -
AMEN. ;....:.: .......:..,:...; '...'..'...'...., :_. .37
EQUV .-...:.:.. .... ..-. '..'...;/ ".....'..-...I-. 805,811-814,816,817
POG . . ., ..:..'..'.:. .:,:.-,: ; 941,942
Ohio EPA ,
. EQUV , .. ...;......'...-. 727, 729
, MISC . . ...... 840
POG ' -... . .".- '....:. .', .."..' :...'. :,933
Olympic Boat Company ' '
POLM :...,.....'......:.'. : : ,....- 948
Oregon DEQ " , ' ,
" EQUV -., : ..." ... . .' '-; . . .'. 736
MISC \ ....'....; . .. / '.'... . 852
Outboard Marine Corp. ' ' , ,
POLM : 968
Oxychem
CLNP '.;...'.'..:....'...'.:...'...., ...'..........211
Pacific Gas & Electric " ,
.CLNP : -... '. ...,.., '.. -....'... 103
Penta Task Force .
.' WOOD1 . ., :'... . . . . . ....--.; :1103," 1108
'- ' WOOD4 . -. . .' ' 1' 1153, 1167
WOODS -....!....:...'..'.. ..;-....' 1173
WOOD6 ;.;..., '....! ,.:. : .1202'
WOOD7 ...:...... ... \..... .""...: .,./... ..,..: 1216, 1220
WOODS .. : . .. ! .,..'. - - ... .1226
WOOD11 " ; , .' 1257, 1277
WOOD12".... .:....'..- ',. ................; 1289
Pharmaceutical Research Manuf Assn. '
EQUV .'.... .'...:' 741
MISC ....;:........:.... 853
Phelps Dodge , ,
EQUV : -. : 289'
POG .:...:... "... '......'..,......,..". 870,871,873
Phillips Petroleum ,
EQUV ! . . : 731
"POG - v . . : . .-.'.- '.'.' '934
Public Service Electric -
CLNP .- .-.. ., : ,.-....'.., 184
SCRP. . : , '. '. . : ... 1021
Recyclers of Copper Alloy . '
SCR?'.: - ..." '. . .' :. 1078
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Regal Marine Industries.. , ' -
. " POLM : :.' : ..-.:....'.. .'..'....-... :.-. !.
RETEC ' ' .' "'..,-;'.
WOQD4 .;. .; x. . ..'... . . '..-.. 1164.
Richard Andersen ' ' . .
EQUV : ..;.../..:...-..,..:..%..;.,... 534
Rohm and Haas ' , '','
- ; EQUV ..'. ."!'.. ..-..'-.. . ... ..... : 626, 635; 637
Rollins Environmental . , . ....'.-
CLNP . ; ." '....,.:.............. . . :' . . 56, 57
. WOOD11 .,v : : . . . :; ...;.. -. 1255
WOOD4 . \...'. <-../.. '........'. V. 1151
' ' WOODS .... .: ......: :.'..:..,: ..'.:.:..'.:. '.. .'.'..'.'1225.
RSR^Corporatiori /.;.''
CLNP''....' .....;..;.....-;...........,..:.! ,...'-.'..'.'.: .209,210
SCRP.... ...'...........' :..... 1066, 1068, 1069
, Safety-Kleen Corp. ' ..'.> . -
AMEN : ,...,..:..'....: s ...."... ,'. ... .:.'. ........ ,..5
.. CLNP '. -....' '.'. . . 43, 44, 205 -
EQUV . .., '..... .'. 566, 568, 57-1, 573, 575, 576
.. .POG .... . '. .:....:.'.' ' :.::.. . ,.- 865
. . ..POLM.....:..:....-:'..' \.- \. :..../..; '..:..., ..966
WOOD6 '...,,.. : ,.,.".../: "....«,.:....:.. 1206
.SMA - . / , . - - . - ^ .'.'.-
. ;MISC :.' :..:.. ..'.. ,..-. .-.....:. .,.,;,.. . . 856
Society of the Plastics Industry , . ..._ -
CLNP ...:.,..,. ...:. .. ..... -. '.'. .-..- ". : 115
POLM ..':'.'.'..,..-.''.-...: . 970
SOCMA . N
EQUV .'. '.,. ...-..: ".'....: ' '. .- , : 5-90,596,597 '.
SSINA . ' ; ' ' '.' - .' ;
' CLNP,; .' '...'...: ..'.., :... 174
MISC.... /. .-.:.... . <.........:,. 855 '
Sterling
CLNP .....:..........:...,.....-........'..'....' .-'. >74
EQUV ,- : 460, 462, 464
Sunfish Laser : ,
: POLM ... ..'. ,. : '....: /949 '
Texaco . . ' . - '
EQUV . .. -,....:. .-;'.. !. /.,......' 516'
- Texas Utilities Services . .. , v - '' .
CLNP ':.'...<..'. !:-.......' .....:..':.'. ...'58
XI
-------
. EQUV ,.,...:: :..:...../ : :. 344
MISC.' : . /: .' : : . ".:.,......::. 843
The Aluminum'Association '. . - ,
SCRP.......;.-... , .... 1084
Tiara , ....
- POLM .. . . , '. :: . .- 986
Total Petroleum : . ' .
EQUV ; ,.. .,..'...',.'..."..'. ' .: Y '.'519, 522
. Union Camp . . '
AMEN... ; ' ' : ' '....!....'....,' 12
- .CLNP _.. .' :.'..-.' ....-.:..'.:..'.-. 55
EQUV . : : . . . 298, 300, 301, 304, 306, 308, 310, 313, 333, 335, 337, 339
MISC . ! ' .....:...:... ..I.'.. 838
. . POG - .'..! V .---.-- 874-882
Union Carbide Corp. .'.-'
EQUV , : : ' 689, 693, 695, 696
MISC./. .,., :......: ....'...: 851
POG -. - ,920
POLM :...... -. '...'... . . 978
Uniroyal Chemical Co. '.
CLNP .: ' :.......\./ '...168
EQUV '.....; !.-...: ' : ". . , ". 743, 747
Utility Solid Waste Activities Group
- CLNP '. '. ,...'....- 4i;'218,219
EQUV '. ..' " '...:.,..... 396,399,401,403,405,408,411,415
. , SCRP : ! ..'. . ._../' . .' - . 1076
Vinyl Institute
WOOD1 ...-...'....: ,'.-...:'.'. - >.. ....1113
WOOD2 . . "....:.,. ..:. . ... . , ', 1131
WOODS ' , . '. . 1188
WOOD12 -...., -.'. 1296
Westinghouse .
CLNP .:...... ...;..... 105, 106, 192, 193
EQUV : . :....." 528
POG '. ..' ,.....'. '..:... 896
' ...-...!'..:....'...-. -.:-. "...-.: '.: 1026
XII
-------
DCN PH4P044
COMMENTER American Forest & Paper Association .
RESPONDER SM , ,
SUBJECT AMEN . s .
COMMENT EPA's proposal not to ban purportedly nonamenable wastes
from land-based biological treatment systems is correct.
RESPONSE . .
.' . ' ..'',-"''
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any ,'
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
. biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation.
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DCN PH4P044 .
COMMEKTER. American Forest & Paper Association
RESPONDER SM
SUBJECT AMEN
COMMENT EPA Is Correct When It Proposed Not To Ban Nonamenable Wastes
From Land-based Biological Treatment Systems. EPA reports in the
Phase IV preamble that "the Environmental Technology Council
(ETC) has suggested that EPA develop regulations restricting
Subtitle D surface impoundment disposal of organic compounds and
metals resistant to biological degradation in these units." 60
Fed. Reg. 43677 (emphasis added). ETC's "suggestion" is just ,
that; it is not backed up by supporting data or persuasive
1 . rationale. For that reason alone EPA's proposal to reject this ^
suggestion is correct and AF&PA supports that result. There are
other reasons to reject the ETC "suggestion." AF&PA agrees with
the Agency that CWA effluent limitations are the appropriate way
to address ETC's concerns about nonamenability. Id. In this
regard, the NCASI wastewater and sludge data discussed above
demonstrate that constituents in paper industry wastestreams do
not present significant risks to human health and the
environment Consequently, as EPA.notes, the Agency can be \
reasonably certain that treatment in paper industry impoundments
is adequate and that the "nonamenability issue" is of no
practical consequence. AF&PA also agrees with the Agency's
identification of numerous technical impediments to banning
purportedly nonamenable wastes from biological treatment
impoundments. EPA correctly observes that operating conditions .
in these impoundments can vary widely, making it difficult to
conclude on a national level whether constituents are or are not , :
amenable to biological treatment. Also, constituents that may
not be regarded as amenable at the point of generation, may be
rendered amenable by transformation processes in CWA treatment
trains. Moreover, processes like acclimation of the biomass and
phenomena like co-metabolism commonly result in biodegradation
of constituents which ETC suggested are nonamenable. 60 Fed.
Reg. 43677. ETC's "suggestion"'about banning purportedly
nonamenable wastes is an example of proof by assertion^ They -
offer no data. For example, ETC claimed that "'ICR waste
streams nonamenable to biological treatment"' include "ICR
wastes with 'water insoluble and highly volatile' F039 . .
constituents...." 60 Fed. Reg. 11717-18 (March 2,1995).
To illustrate that generalizations such as this are just plain
wrong, NCASI analyzed data it gathered during original research
-------
on biodegradability to determine whether water solubility and ,
volatility are likely to have any effect on amenability of
compounds in surface impoundments. NCASI began by conducting a ' ., , '_
two-phase study to gather data concerning the biological '
treatability of 14 organic compounds. In the first phase of - ,
this study NCASI determined biodegradation rate constants for
these compounds using bench-scale reactors. In the second phase
of the study the fate of individual compounds was estimated
during full-scale treatment using the NOCEPM model, with the ~
bench-scale biodegradation rate constants entered as a model . -., .
input, the percentage of each compound that was removed by .
biodegradation can be used as a relative indicator of biological ' ...
amenability. Complete details about this study appear in
DouglasA. Barton, Summary of Results of Biotreatability Study
of Selected BOAT Compounds, November, 1995 ("NCASI
Biotreatability Report") which is attached as Appendix F. Next,
Henry's Law constants were obtained from EPA's treatability
manual. These values can be used to express a relative tendency
of each compound to evaporate from a water solution. Water
solubility for. each compound was obtained from the Envirofate
Database. Graphs 1 and 2 present the percentages of removal by
biodegradation for each compound studied as a function of
volatility and-water solubility, respectively. Acetone and . ,\
methanol are not depicted on Graph 2 as complete miscibility ' /
cannot be represented graphically. An analysis of variance on
the regression for each graph shows that no significant
relationship exists between either volatility or water
solubility and the amenability of a compound to biodegradation. .
Tables 9 and 10 show the analysis of variance for, respectively,
volatility and water solubility. As the NCASI Biotreatability
Study and data analyses show, for the 14 organic compounds , '
examined, volatility and water solubility cannot be used to
predict the amenability to biological treatment of these
compounds in surface impoundments. Thus, EPA was correct in
rejecting ETC's "suggestion" about banning purportedly
non-amenable wastes from land-based biological treatment
systems.
,- *
An analysis of variance on the regression for each graph shows that no significant
relationship exists between either volatility or water solubility and the amenability
of .a compound to biodegradation. Tables 9 and 10 show the analysis of variance
for, respectively, volatility and water solubility, .
'- ' . ' J ' .'"..'
-------
. As the NCASI Biotreatability Study and data analyses show, for the 14 organic
compounds examined, volatility and water solubility cannot be used to predict the
amenability to biological treatment of these compounds in surface impoundments.
Thus, EPA was correct in rejecting ETC's "suggestion" about banning purportedly
non-amenable wastes from land-based biological treatment systems., *
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater .
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes hi question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
"biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant.
such regulation.
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DCN PH4P065 ' . .
COMMENTER Safety-Kleen Corp. _
RESPONDER SM' . . x , .
SUBJECT AMEN ' .
COMMENT 7. Safety-Kleen concurs with EPA that there is no need to ban
nonamenable wastes from biological treatment in surface "/..'
impoundments. In the Phase III LDR proposal, the Agency
; discussed the possibility of banning "nonamenable constituents" ,
from biological treatment surface impoundments. In this Phase
IV LDR proposal, EPA makes the determination that such a ban is '
not necessary, because the provisions in the Phase III and Phase
IV LDR rulemakings are sufficient to protect human health and
the environment, and because it would be technically infeasible
to implement such a bah. Safety-Kleen commends the Agency for
its realistic, common sense evaluation and dismissal of an
infeasible and ineffective proposed requirement
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996} signed by .
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered honhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. , V
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DCN PH4P015 -
COMMENTER BP Oil . ; , .
RESPONDER SM : ;
SUBJECT AMEN
* SUBJNUM 015
COMMENT y
We support EPA's decision not to ban nonamenable wastes from
biological treatment systems. ,
We agree with EPA that the transfer of nonamenable constituents to
air, leaks, sludges, and discharges to surface waters is best , ' ,
addressed by the Phase III and Phase IV LDR rulemaking which is
designed to protect human health and the environment from
hazardous constituents. There is no need to issue separate
regulations addressing nonamenable wastes. The comments being
submitted by the American Petroleum Institute (API) will provide
additipnal information and data on petroleum refinery wastewaters
to support EPA's decision on this issue. ,
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents hi those wastes are "amenable" to
biological treatment. As is discussed hi the April 8,1996 partial withdrawal notice to the LDR
Phase III final rules (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA:
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study .to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing' the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant ..
such regulation.
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DCN PH4P019
COMMENTER Asarco
RESPONDER SM , -
SUBJECT AMEN
SUBJNUM 019 .-.-
COMMENT " ' " :
Asarco supports EPA's proposal to refrain from banning
non-amenable wastes from land-based biological treatment systems.
Asarco supports EPA's conclusion that it should not promulgate
regulations restricting Subtitle D Surface impoundment disposal of
.. organic compounds and metals resistant to biological degradation in
those units. EPA correctly stated in the Proposed Rule that the . . '
existing provisions in Phase III and the forthcoming provisions in
Phase IV. of the LDR program will adequately protect human health
and the environment, so that the regulation of non-amenable wastes
would be unnecessary. 60 Fed. Reg. 43677. Asarco acknowledges and
endorses EPA's concern that the"technical impediments" to such
regulation are too burdensome to impose upon the . ..
regulated industry. Id. .
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed in the April 8, 1996 partial withdrawal notice to the LDR'
Phase III final rule (61 FR15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited .
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. s ,
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DCN , PH4P018 '
COMMENTER Mobil Oil
RESPONDER SM , , ,
SUBJECT AMEN ' >
SUBJNUM 018 . - '- .
COMMENT' ' , ',;'
, EPA should not specify constituents that are non-amenable to '
biological treatment because as data provided by API demonstrates:
' f Many constituents that the Environmental Treatment Council
listed as non-amenable are in fact amenable.
' t '. . . '
- Constituents that are genuinely non-amenable are absorbed on
bio-sludge and do not leach, per TCLP testing.
EPA SHOULD NOT SPECIFY CONSTITUENTS THAT ARE NON-AMENABLE
TO BIOLOGICAL TREATMENT
Proposed lists of constituents that may be non-amenable to
biological treatment were provided to EPA by the Environmental
Treatment Council (ETC). ETC's argument that certain
organic compounds and metals are not amenable to biodegradation and
' shouldn't be allowed in non-hazardous surface impoundments is
' flawed from both a technical and regulatory perspective. From a
regulatory perspective, the pathways for release of such compounds
are already being addressed in the Phase IV rule, so the
designation of compounds as non-amenable is not necessary to .
protect the environment From the technical perspective, ETC's
arguments are just wrong, based on the data which API has developed
and submitted for the record with its comments. As demonstrated by
the API study conducted by ERM-Southwest, many of the compounds
designated by ETC as non-amenable were in fact amenable to .
treatment based on actual refinery data. Moreover, those
constituents which were not biodegraded were absorbed onto the
biological sludges which exit these bioreactors. TCLP testing of
these sludges demonstrates that the constituents do not leach from
these sludges and thus, do not pose a threat to underlying
groundwater. ' , .
. ~ ^ ,
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
8
-------
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61-FR. 15660), the Land Disposal Program Flexibility Act of1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited.
from land disposal once rendered nonhazardous. Because they are decharacterized before they.
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the.Phase III and Phase IV rulemakirigs addressing the issue of amenability of wastes to .
..biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. . . . .
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.DCN PH4P020
COMMENTER Exxon ,
RESPONDER SM '
SUBJECT AMEN
SUBJNUM 020 . ,
COMMENT ... -. , : .
B. Because ABTs treat all UHCs in wastewater and wastewater
sludge to below UTS, EPA should not define amenable and
non-amenable constituents
- ' '
Exxon supports EPA's position not to ban non-amenable constituents
from management inland-based units. Exxon encourages EPA to
consider API's comments on the issue of amenable and non-amenable
.constituents. Exxon opposes designation of "amenable"and
"non-amenable" constituents and encourages EPA to select ABT as a
,' technology-based standard for our industry. ABT is considered Best
Available Treatment (BAT)under the CWA and is the basis for
wastewater UTS. See 58 FR 29864'on May 23,1993. The court has
not required EPA to address the issue of non-amenables, so
EPA should refrain from doing so in the Phase IV LDR.
D. API data shows that ABTs treat rather than volatilize UHCs.
ABTs are not "media-transfer" units.
/
Prior to the issuance of the Phase III LDR proposal, API
recognized the importance of ABTs as a technology that provides
effective and proven treatment of waste waters. An
extensive sampling and analysis effort from ten refineries (some of
which had co-located petrochemical plants) was undertaken. Exxon
participated in the sampling and analysis effort at its Baytown,
Texas Complex. The Baytown Complex includes a 396,000 Barrel/Day
refinery and a large petrochemical complex producing
polypropylene, paraffins, hydrocarbon solvents, aromatics and other
chemical commodities. A subsequent sampling effort of four
refineries discussed in the API Phase IV LDR comments has "closed
the material balance" around ABTs. The data shows that UHCs are >
either treated in the ABT or tightly adsorbed onto the sludge
(i.e., not leachable above TCLP limits), but are not volatilized.
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
10
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biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final ride (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they ,
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.'
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have.been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-yearstudy. The findings of this study
may result hi proposed regulations for these units j if risks are in fact found that would warrant
such regulation.
11
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DCN PH4P024
COMMENTER Union Canip
RESPONDER SM
SUBJECT, AMEN
SUBJNUM 024 . ; .
COMMENT
E. EPA is Correct in its Proposal Not to Ban Nonamenable Wastes
From land-based Biological Treatment Systems.
EPA reports in the Phase IV preamble that "the Environmental
Technology Council (ETC) has suggested that EPA develop regulations
restricting Subtitle D surface impoundment disposal of organic
: compounds and metals resistant to biological degradation in these
units." 60 Fed. Reg.43677 (emphasis added)'
ETC's "suggestion" is just that; it is not backed up by supporting
data or persuasive rationale. For that reason alone EPA's proposal
to reject this suggestion is correct and UCC supports that result.
.1 / ' .
There are other reasons to reject the ETC "suggestion." UCC agrees
with the Agency that CWA effluent limitations are the appropriate
way to address ETC's concerns about nonamenability. In this
regard, the NCASI wastewater and sludge data discussed
above demonstrate that constituents in paper industry waste streams
do not present significant risks to human health and the ,
environment. Consequently, as EPA notes, the Agency can
be reasonably certain that treatment in paper industry impoundments
is adequate and that the"nonamenability issue" is of no practical
consequence. . . -.
UCC also agrees with the Agency's, identification of numerous
technical impediments to banning purportedly nonamenable wastes
from biological treatment impoundments. EPA correctly observes that
operating conditions in these impoundments can vary widely, making
it difficult to conclude on a national level whether constituents
are or are not amenable to biological treatment.
Also, constituents that may not be regarded as amenable at the
point of generation, may be rendered amenable by transformation
processes in CWA treatment trains. Moreover, processes like
acclimation of the biomass and phenomena like
co-metabolism commonly result in biodegradation of constituents
12
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which ETC suggested are nonamenable. 60Fed. Real 43677.
As the NCASI study and data analyses show, for the 14 organic -
compounds examined, volatility and water solubility cannot be used .
to predict the amenability to biological treatment of these
compounds in CWASIs. Thus, EPA was correct in rejecting ETC's
"suggestion"about banning purportedly non-amenable wastes from
land-based biological treatment systems.
RESPONSE . '
. EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems oh die basis of whether the constituents in those wastes are ."amenable" to
. biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA. -
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
_ biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. -
, 13
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DCN PH4P031 '
COMMENTER Department of Energy '
RESPONDER SM
SUBJECT AMEN . :
SUBJNUM 031 '"-..
COMMENT :
II, Proposal Not to Ban Nonamenable Wastes From Land-Based
Biological Treatment systems
-, II.B Rationale for Proposing Not to Ban Nonamenable Wastes From
Biological Treatment Systems ,
1. p. 43677, col. 2 EPA explains its reasons for deciding not
to prohibit certain decharacterized wastes from land-based
wastewater treatment systems on the basis of whether the
constituents in those wastes are "amenable" to biological
treatment. ,,
I
s
DOE agrees that the key issue in deciding whether nonamenable
decharacterized wastes should be banned from impoundment-based
wastewater treatment systems concerns whether cross-media transfers
of hazardous constituents would occur in the absence of such a
ban. DOE also agrees that the provisions of the LDR Phase III and
IV rules (i.e., end-of-pipe limits on hazardous constituents
coupled with a regulatory option to address potential hazardous ,
constituent releases),when effective, will protect human health
and the environment from risks caused by cross-media transfers of
hazardous constituents from impoundment-based wastewater treatment
systems, including those accepting nonamenable wastes.. Therefore, . -
DOE supports EPA's decision to not ban nonamenable decharacterized t /
wastes from impoundment-based wastewater treatment systems.
RESPONSE ,''.'-' . .
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
14
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study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakihgs addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study :
may result in proposed regulations for'these units, if risks are in fact found that would warrant
such regulation. -
15
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DCN , PH4P036 , .
COMMENTER American Iron & Steel Ins
RESPONDER SM , - .
SUBJECT ' AMEN
SUBJNUM 036 '
COMMENT -
AISI supports EPA's proposal not to prohibit certain
decharacterized wastes from placement into CWA surface impoundments
based on assumptions about whether the wastes are"amenable" to.
biological treatment in such impoundments. As discussed below,
such a prohibition would be unnecessary and inappropriate.
The issue of whether or not to prohibit "non-amenable" wastes from
CWA surface impoundments was originally raised.by the Environmental
Technology Council ("ETC") in comments on EPA's March 1993
Supplemental Information Report on potential responses to the court
decision in Chem Waste II. Apparently, ETC was concerned that
certain constituents might not be adequately treated in biological
impoundments, but instead might simply be transferred into the
environment in the form of leaks, volatilization, sludges, or
discharges to surface waters. In this way, the risks associated
with the constituents might not be "minimized," as required
under, the statute, and human health and the environment might not
be adequately protected. ,
' \ ,
. As an initial matter, AISI believes that ETC's focus on wastes
that are supposedly"hon-amenable" to biological treatment is
fundamentally flawed. It is well established that virtually all
organic compounds, and many inorganic constituents (e.g., cyanide,
ammonia, nitrate, and thiocyanate), are susceptible to biological'
degradation under certain conditions. See, e.g., 60
Fed. Reg. at 11,719 ("there are no organic chemicals, other than
[certain] polymers, which are absolutely resistant to biological
degradation"). The extent to which these compounds can >
be biologically degraded depends upon a wide variety of factors,
including the overall composition of the waste stream, the
1 variability of the waste stream, the dimensions and design of
the impoundment, the ambient temperature, the time that the waste
. is retained in the impoundment, the amount of agitation that the
contents of the impoundment are subjected to, the nature of
the microbes in the impoundment, and the acclimation of those
microbes. See generally id: at 11,718-19. As EPA has
acknowledged, " [constituents that are amenable to treatment in
one system may be nonamenable in another." Id. at 11,719.
16
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Accordingly, it makes no sense to focus in the abstract on
, constituents that are "non-amenable" to biological treatment. The -
only other possible approach would be to try identifying .
"non-amenable" constituents on a site-specific basis. . I
However,1 the Agency has properly concluded that this approach |
would present an impossible administrative burden. 60 Fed. Reg. at - '. ->
43,677. , ' . . ' '.- '
Even if it were possible to identify constituents that are
non-amenable to Biological Treatment (on a generic or site-specific
basis), it does not follow that those constituents should
be prohibited from placement in CWA surface impoundments. There
are many forms of legitimate treatment other than Hodegradation
that can take place in such impoundments. For example, metals can
be completed within surface impoundments to form compounds that
are highly immobile in the environment. Wastes also can be treated
in surface impoundments by means of pH adjustment, cooling, and
physical separation (e.g., settling and de-emulsificatiori). These
types of good engineering practices .should not be discouraged under the
LDR program. Moreover, even if a constituent is not treated in a .
surface impoundment* it may be treated in another portion of the
wastewater treatment system of which the impoundment is only a
part. For example, a constituent that is not amenable to .
biological treatment within an impoundment may be subjected to some
other form of treatment in tanks "upstream" or "downstream" of the
surface impoundment. In these situations, it would clearly be
inappropriate to prohibit the constituents from being added to the
wastewater treatment systems or from being placed in the
impoundments. Indeed, managing the constituents in such systems may
be the most efficient, sensible, and protective option available. . .
To the extent that EPA continues to be concerned that placement of
supposedly"non-amenable" wastes into CWA surface impoundments may
not result in legitimate treatment, may not "minimize'1 risks, or may
not be protective of human health and the environment,
such concerns should be adequately addressed by other regulatory '
provisions. As the Agency itself has noted, if constituents are
not excessively migrating to ground water through leaks, to air
through emissions, adsorbing onto sludge sediments, or being
discharged at the end of the pipe, they must be undergoing
legitimate treatment in the form of destruction, removal, or
immobilization. See 60Fed. Reg. at 43,677. The upcoming Phase
III LDR rule will be designed specifically to ensure that hazardous
17
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constituents are not merely being discharged from CWA impoundments
at the endow the pipe. As discussed above, AISI believes that
other regulatory programs are adequate tonsure that hazardous
constituents are not simply being transferred to the environment
in the form of leaks, volatilization, or sludges. See Section
II.C, above. Even if EPA concludes that additional controls on
these releases are warranted, such controls presumably will be
promulgated under other portions of the Phase IV rule, without
regard to the "amenability" of particular constituents to
biological treatment. Thus, a prohibition on the placement of
. "non-amenable"constituents in CWA impoundments is not necessary to
ensure that such constituents are being legitimately treated.
Moreover, if the constituents are being legitimately treated, and
releases to the environment are being adequately controlled, the risks
associated wim the constituents necessarily are being "minimized,"
as required by the statute, thereby protecting human health and the
environment. . , '
For the reasons set forth above, it would be inappropriate, . ' ,
unnecessary, and probably impossible to impose a prohibition on
placement of "non-amenable" constituents or wastes in CWA surface
impoundments. Accordingly, AISI urges EPA to finalize its
proposal not to establish such a prohibition.
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed hi the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility, Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
. It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation.
18
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DCN PH4P048 . , . ; , .,
COMMENTER Chemical Waste Management ,
RESPONDER.SM . ^
SUBJECT AMEN -
SUBJNUM 048. * ,
COMMENT ,' ., ;
The EPA is proposing not to ban nonamenable wastes from bad-based
biological treatment systems because the Agency believes the key
issues of whether the nonamenable constituents are being , <
transferred to air, leaks, sludges, or discharged to surface .' ,
waters will best be addressed by the end-of-pipe limits on - . ,
constituents proposed in Phase III or the three options proposed /
in this rulemaking. ,' ., -
CWM supports me approach by the Agency, however, CWM is concerned
that the Agency appears to be offering conflicting information
regarding the justification for supporting this option. WMX
requests clarification from the Agency regarding why it discusses .
the Phase III end-of-pipe proposal to address this issue. Yet in
another section of the proposal the Agency states ,that it does not
support this approach. (See 60 Fed. Reg. at 43,659). The Agency \ '
needs to evaluate which position it is supporting with regard to ' " . '
the end-of-pipe issue. CWM does not believe that the Phase III ,
end-of-pipe proposal addresses this issue if the Agency is not in
support of this type of control on discharges to surface impoundments.
RESPONSE :
EPA is not prohibiting certain decharacterized wastes from land-based wastewater '
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
f J~ . - . > ,- t
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. ' ' "', ''.'':
19
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20
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DCN ..PH4P053
COMMENTER Texaco . /.
RESPONDER SM
SUBJECT AMEN ... ' . ' , .,
SUBJNUM 049 . .
COMMENT v ' , ,
Texaco supports EPA's conclusion in the preamble to the proposed
rule, that it is unnecessary to ban "non-amenable" wastes from ,
land-based aggressive biological treatment units. This is
further supported by API's extensive commehts and a detailed .
evaluation conducted by E.M.-Southwest, Inc. on the regulatory and ,
technical flaws of ETC's argument that certain compounds are
not amenable to biodegradation. .'.-.,
" /
RESPONSE . '
. . /
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on.the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of1996, signed by^
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA. '
-. It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study ^
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. . '
21
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DCN PH4P063
COMMENTER Laidlaw , .
RESPONDER SM
.SUBJECT AMEN,
SUBJNUM 063
COMMENT ! ,
. 2.0 Proposal Not to Ban Non-Amenable Wastes From Land-Based . '
Biological Treatment systems , '
LES does not support EPA's decision not to ban non-amendable
wastes from Biological Treatment systems. The Agency has stated ,
that "significant" impediments exist to banning these wastes, but
fails to provide a convincing argument supporting such a decision.
A review of the docket indicates that a document submitted by -
the Environmental Technology Council in 1994 supporting such a ban.
was not included in the docket material. This document shows that
non-amenable wastes are not treated by the biosystem but are merely
transferred to the sludge which eventually accumulates in the .
bottom of the treatment impoundment Thus, it appears that EPA, by
not supporting such a ban, is violating the directive put forth by
the Court to address cross-media transfer of hazardous . .
constituents.
RESPONSE ,
EPA.ismot prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase IH final rule (61 FR15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
. to the Phase IH and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. .
22
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DCN PH4P064 < / '
COMMENTER Dow Chemical ;
RESPONDER SM x
SUBJECT AMEN ,
SUBJNUM 064 v
COMMENT - ,
Dow supports the decision not to ban nonamenable wastes from
land-based biological treatment systems. The rationale presented
by EPA accurately represents the facts surrounding this issue.
RESPONSE . .
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to ,
biological treatment. .As is discussed in the April 8,1906 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardbus. -Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA. -
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments arid data which have been submitted in response
to the Phase II! and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. .
23
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DCN PH4P066 ' ~
COMMENTER API
RESPONDER SM
SUBJECT AMEN
SUBJNUM 066 . ,
COMMENT
ABT provides extremely thorough treatment of UTS constituents.
Analysis of refinery ABT effluent presented in API's Phase III
comments verified that all but one of the VOC and PAH compounds
were below UTS upon discharge from the ABT impoundments. API has
further verified that most of this treatment occurs by means of
. biodegradation. Described in detail later in these comments .under a
discussion of so-called "non-amenable"compounds, is a recent
ERM-Southwest study (Appendix A) further verifying that all PAH
effluent concentrations from ABTs at four refineries were orders
of magnitude below UTS for wastewaters. A mass balance for these
P AH compounds was performed, which found that biodegradation was by
far the primary removal mechanism. Also presented in the
"non-amenables" discussion is evidence that the most common VOCs
found in refinery wastewaters are biodegraded in ABT
units. Therefore, it is clear that effective treatment of
wastewater is occurring within ABT units.
VI. EPA Should Not Specify Constituents that are Non-amenable to
Biological Treatment ,
As EPA correctly points out in the draft preamble, it is
unnecessary to bah "non-amenable" wastes from land-based ABT units.
In their comments to the Phase III LDR proposal, ETC contends that .
certain organic compounds and metals are not amenable to
biodegradation, and therefore should not be allowed in these Subtitle D
impoundments. This argument is flawed from both a regulatory and technical
perspective.
In a regulatory sense, any pathways for "non-amenables" to be
released to the environment are already being evaluated in this
Phase IV rule. Technically, the argument is flawed in two
respects: first, it presumes non-amenability for many compounds
which are amenable to biotreatment; second, it presumes
that biodegradation is the only environmentally responsible
treatment mechanism by which compounds can be removed in an ABT v
unit. '...,">
24
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Regulatory Perspective ' .,
As part of the Phase IV proposal, EPA evaluates pathways for.
exposure to the environment from constituents in surface
impoundments. If EPA deems that these pathways present, an
unacceptable risk, then further regulation may be
appropriate."Non-amenables" have been included in EPA's analysis
of the Phase IV rule, along with any other constituents normally
found in industrial wastewater. As EPA stated in the draft
preamble to the Phase IV rule, "if [non-amenables] are not
excessively migrating to ground water through leaks, to air through
. emissions, adsorbing onto sludge sediments, or being discharged at
the end of the pipe, then EPA can be reasonably certain that
treatment in the impoundment is adequate."
Additionally, air emissions and excessive adsorption onto sludge
are already controlled through existing regulatory requirements. --
VOC emissions from refinery wastewater impoundments are regulated
under the refinery MACT rule and the benzene waste NESHAP.
Excessive adsorption of constituents onto biosludge is regulated
upon the sludge's removal from the impoundment, under the
toxicity characteristic. As EPA states in the preamble to this
proposed rule, since leaks from impoundments are already being
evaluated,'it is not necessary to evaluate potential impacts from
sludge until it is removed, when it could present a separate path
for environmental impact. .
Technical Perspective ,
Two treatment processes are at work in the ABT units. They are
biotreatment and adsorption, and both play a part in the treatment
of "non-amenables." They are discussed in detail below.
Biodegradation
Many of the "non-amenable" compounds listed by ETC in their
comments to the Phase III rule are indeed degradable. It has been
proven, through literature and field study discussed below, that
biological degradation, not stripping, is the primary treatment
mechanism for both Volatile Organic Compounds (VOCs), and
Polyaromatic Hydrocarbons (PAHs), also referred to as Polynuclear
'Aromatics (PNAs), in land-based ABT units.
Predictions of biodegradation rates based on constituent ;
characteristics have been performed. In the memo presented as ,
Appendix B, relative contributions of biodegradation and
25
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volatilization are displayed for the most common VOC and . - , 'i
PAH compounds in petroleum refinery waste water by plotting
biodegradation constants versus Henry's Law constants (a Henry's
Law constant measures the tendency of a given constituent to
volatilize from water to air, and are widely available in .
literature).The biodegradation constants were derived from actual
laboratory experimental data. Two graphs were created with
biodegradation constants on one axis and Henry's Law Constants on
the other. The graphs correspond with diffused and surface
aeration cases. Lines were then plotted on the graphs to represent
equal percentage biodegradation of the influent constituents for a
given pair of biodegradation and Henry's Law constants. The plots
indicate that more than 99% of the BTEX compounds, and '
approximately 90% of naphthalene can be biodegraded, depending on
the type of ABT unit utilized.
In the recent ERM-Southwest study discussed earlier and presented
in Appendix A, a mass-balance was performed for PAHs in three
refineries. Influent concentrations and flow rates were used to
identify masses of PAHs entering the ABTs. Likewise, effluent
concentrations and flow rates identified the mass of PAHs leaving
the units. For sludges, total PAH concentration and sludge
generation data were used to determine the mass of PAHs adsorbed to
the sludge. It was assumed that given the low Henry's Law
constants for PAHs, air emissions from PAHs in the impoundments was
negligible. The rate of biodegradation was therefore calculated
from the following: the biodegraded mass divided by the influent.
mass results in the percentage of the constituent which has been
biodegraded. The biodegraded mass is derived from the total mass ,
of the constituent in the influent minus the sum of the
constituent mass adsorbed to the sludge, the constituent mass
emitted into the air (negligible), and the constituent mass in the
effluent
This study found that for all 18 PAH constituents, biodegradation
was by far the primary removal mechanism. In fact, 14 of the 18
PAHs averaged greater than 90%biodegradation in the three refinery
mass balances. Additionally, of the six analytes sampled in this , -
study which were also listed as "non-amenable" or "recalcitrant"
by ETC, benzo(a)pyrene, benzo(b)fluoranthrene,
benzo(g4i,i)peiylene,benzo(k)fluoranthrene,
dibenzo^yanthracene, and indeno(l,2,3^,d)pyrene, biodegradation
rates ranged from 84.4% to 98.2%. The only exception to this was
26
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one facility in which benzo(g,h,i)perylene was less than 1%
biodegraded. Since the other biodegradation rates for , ' - .
benzo(g,h,i)perylene were above 76%, and the influent concentration
for this constituent at this refinery was very low, it is assumed
that this single, extremely low biodegradation rate is attributable
to sampling error or a minor variance in laboratory analysis.
Adsorption - : ':.,
' In refinery wastewater impoundments, metals, and to a lesser .,
degree PAHs, adsorb onto the biosludge, thus stabilizing these.
constituents. Sludge TCLP data for metals in Table 4 of the
ERM-Southwest study described above indicated that all sludge ;
metals results were below UTS limits. Sludge TCLP data for PAH
compounds were also low, as all analytical results were less than
one part per billion. In addition, effluent concentrations for
metals and PAHs were within UTS limits. Therefore, this data
.verifies that metals and the fraction of PAHs which were hot
biodegraded were effectively complexed into the biomass, being
neither discharged from the ABT unit nor leachable from wasted
sludge. .
1 - ' "
ETC has claimed that "non-amenable" constituents should be
segregated from the waste stream prior to entering into /
biotreatment impoundments. As shown above, this costly alternative
. -i is not warranted, either regulatorily or technically. First, , .
all potential pathways for environmental impact from these
constituents either pose negligible risk or are already subject to
, controls. Second, the contention that the compounds in question,
VOCs, PAHs, and metals, are not adequately treated in refinery ABT /
units is simply untrue. Both biodegradation and, to a much lesser
degree, adsorption provide effective, environmentally responsible
treatment for these constituents. API therefore strongly supports
EPA's decision not to ban these so-called"non-amenable"
constituents/ . \
RESPONSE ' .-..,
V , f
\ , . ' ' ', ' '.,-
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
27
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enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments arid data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. . .
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DCN PH4P080
COMMENTER EASTMAN '
RESPONDER SM
SUBJECT ^AMEN" " '..--' . .
SUBJNUM 080
COMMENT V. Eastman Agrees That There is No Need to Bian Nonamenable ,
Constituents At 60 FR 43677 EPA says that it believes that
prohibiting certain decharacterized wastes from land-based , ,
wastewater treatment systems on the basis of whether the
constituents in those wastes are "amenable" to biological
treatment is unnecessary at this time. Eastman agrees. This
proposal was made by an organization which stands to gain
economically from its adoption. It is without merit and deserves - '
no further consideration. The Chem Waste decision certainly did
not require consideration of nonamenable constituents in the
' Phase IV rule. The Agency has properly determined that bans on
nonamenable constituents is unnecessary and that there are
numerous technical and practical reasons why implementation of v
. such bans would be problematic. Bans on "nonamenable"
constituents, as defined by ETC, would totally disrupt the
enormous capital intensive CWA treatment systems that have been
developed over the last 20 years-just the type of result that . -
the Agency has tried to avoid in the Phase IV rule. ,
RESPONSE
. EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited,
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
: It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year, study. The findings' of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation.
29,
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DGN PH4P085 ' .
. COMMENTER EDF . '
RESPONDER SM
SUBJECT AMEN
SUBJNUM .085 - - . , ,
COMMENT , '''..
Ironically, EPA's proposed Option 2 purports to distinguish those
surface impoundments engaged in disposal from those performing
treatment. See 60 FR 43657. Since treatment of metals does not
occur in biological systems, the placement of metal wastes in such
systems constitutes de facto disposal. Therefore, restricting metal
wastes not amenable for treatment is compelled by EPA's underlying
rationale for its proposal: Such a restriction could actually '
improve legitimate treatment in biological systems by eliminating
metal inhibitors from these units. .
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
' biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
,the President.on March 26,1996, provides that the wastes in question are no longer prohibited,
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated tinder RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase in and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. .
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DCN PH4P091 ; , .
COMMENTER FMC
'RESPONDER SM
SUBJECT AMEN '' ' :
SUBJNUM 091 ,
COMMENT IX. FMC Supports the Agency Decision Not to Ban Non-amenable
Wastes from Land Based Biological Treatment Systems. FMC concurs
with and supports EPA in their decision not to ban nonameriable
wastes from land based biological treatment units. /60 FMC
supported this position as part of its Phase III comments 761
and for the reasons stated there we continue to support the
Agency's position. 759 59 Fed. Reg. 47982,9/19/94/60 60 Fed.
Reg. 43677 /61 RJ Fields to USEPA, 5/1/94, Docket No.
F-95-PH3P-FFFFF, pg 17 ... . , ' /
" : ' ' > . '
RESPONSE
, EP A is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to - -
biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
,Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of1996, signedby
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
; cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase1V rulemakings addressing the issue of amenability of wastes to - _
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. . ' - '
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DCN PH4P097 " , .
COMMENTER Hazardous Waste Management : .
RESPONDER SM
.SUBJECT AMEN , . .
SUBJNUM 097 . ."-..-.
COMMENT , \ .
Proposal Not To Ban Nonamenable Wastes From Land-Based Biological .
Treatment systems .(60 FR 43677)
EPA proposes not to ban nonamenable wastes from land-based '
biological treatment systems because whether the nonamenable
constituents are being transferred to air, leaks, sludges,
or discharged to surface waters are best addressed by the
end-of-pipe limits on constituents proposed m Phase III or the /
three options proposed in the rulemaking. HWMA supports
this approach. However, the Agency appears to be offering
conflicting information regarding the justification for supporting
this option. We request clarification regarding why the '.".
Agency proposes the Phase III end-of-pipe proposal to address this
issue, yet in another section of the proposal states that it does
not support this approach (60 FR 43659). The Agency needs , ' '
to evaluate which position it is supporting with regard to the
end-of-pipe issue. '
RESPONSE
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to .
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes hi question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation'does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation.
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DCN PH4P102 ,.-'_
COMMENTER Chevron , '."''
RESPONDER SM !
SUBJECT AMEN !' , . ;
SUBJNUM 102 ' '- '
COMMENT .1
4) Chevron Agrees With EPA That Leakage And Sludges From Bio And
Post-Bio Units Should Not Be Regulated Under The Phase IV Rule. .
^
Any water leaking from surface impoundments operated as aggressive
biological treatment (ABT)units is substantially treated and :
should not be subject to regulation under Phase IV. As completely
mixed systems, the concentration of constituents in the ABT
surface impoundment is equivalent to the discharge concentration.
Therefore, any leakage from the impoundment or downstream
impoundments will be of fully treated wastewater that poses little
risk to groundwater. In addition, the constituents in the
accumulated sludges in these units do not pose a threat to*.
groundwater because they exist in a near steady-state condition
with the impoundments' treated wastewater..Besides, data submitted
by API to the docket shows that refinery bio-pond sludges contain
underlying hazardous constituents at levels significantly below
the universal treatment standards. Thus, the sludge is already
well-treated and does not pose a threat to groundwater.
N '
6) Chevron Encourages EPA to declare ABT as BOAT.
Chevron again encourages EPA to declare that aggressive biological
treatment (ABT) is a best demonstrated available technology (BOAT)
for decharacterized wastes. Subsequent to our Phase III comments, . .
API performed additional sampling on four refinery ABT units to
gamer more accurate information regarding the fate of poly
aromatic hydrocarbons (PAHs) in these units. The analytical''
services of Arthur D. Little, Inc. were used to obtain reporting
limits of 10 parts per trillion which allows for more definitive
conclusions on this issue. This data is presented and discussed in
detail in API's comments. However, Chevron emphasizes two
important conclusions:
\ 1. The TCLP extracts from the bio sludge from the:four refineries
are several of orders of magnitude below the universal treatment
. standards confirming EPA's finding that the sludges from biological
and post biological treatment units do not pose a threat to
groundwater. The attached Figure 1 and table presents the ratio of
33
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the measured concentration in the extract to the waste water UTS for
sixteen refinery PAHs. As seen, the extract concentrations are
typically more than 1,000 lower than the UTS. ,
2.The mass balances performed on the data show that the PAHs are
being biologically degraded and are not simply adsorbing and
precipitating in the sludge. This demonstrates that these compounds
are very amenable to biological treatment. , . ,,
The data supports Chevron's assertion that ABT should be BDAT for .
treating refinery wastewaters. Further, as demonstrated by this and
other data submitted to the docket by API, ABT units: (1) are well .
mixed as required in their regulatory definition; (2) treat
? process wastewaters to universal treatment standard level;;: (3) do
not pose a risk to groundwater since the effluent concentrations .
are equal to the concentrations in the unit; (4) contain v
low-risk sludges; and (5) do not emit air emissions in amounts that
pose an unacceptable risk.
RESPONSE ' ; '. -
EPA is not prohibiting certain decharacterized wastes from land-based waste water
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year,
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result hi proposed regulations for these units, if risks are in fact found that would warrant
such regulation.
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DCN PH4P115
COMMENTER Courtaulds Fibers
RESPONDER SM
SUBJECT AMEN
SUBJNUM 115 "''..' '' .
COMMENT . -...,. "
CFI supports EPA's decision in the Phase IV rule not to ban
nonamenable wastes From land-based Biological treatment systems.
CFI concurs with EPA's view that prohibiting decharacterized wastes
from land-based wastewater treatment systems on the basis of
whether the constituents in those wastes are amenable to biological
treatment is unnecessary at this time, due to the significant
technical impediments such a prohibition would pose. CFI
also believes that the "end-of-the-pipe" limits on constituents EPA
proposed hi the Phase III rule, 2cbupled with Option 1 in the
x Phase IV rule, will address risks, if any, to human health and
the environment that may be posed by the management of hazardous
constituents in surface impoundments. . .
! . % '
Additionally, however, CFI believes that there is no need for EPA
; to regulate nonamenable wastes. EPA has acknowledged that the Phase
IV rule is intended to address risks that EPA itself has
characterized as minor.3 The risks, if any, posed by nonamenable
I/ 60 Fed. Reg. 43654 (Aug. 22,1995).
2/60 Fed. Reg. 11702 (Mar. 2,1995). .
3/60 Fed. Reg. 11704.
wastes are a subset of these minor risks, and as such pose
commensurately even fewer risks.4 .-..'. v
CFI also wishes to comment upon the designation of sulfide-bearing
waste streams as not amenable to biological treatment. The
designation of sulfide as a constituent that is not amenable to
biological treatment is based on a list submitted by the Chemical
Manufacturers Association (CMA) to EPA in response to EPA's March
.1993 Supplemental Information Report on potential responses to
Chemical Waste Management, Inc. v. EPA.5
While CMA may have created the list and submitted it on behalf of
its members, CFI's experience is that some sulfide-bearing .
waste streams are amenable to biological treatment and thus it is v
inappropriate to classify all sulfide-bearing wastes as ,
35
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r
nonamenable. CFI's wastewater treatment system has achieved %
consistently high treatability for sulfide-bearing waste streams.
While CFI can report only on its own experience with treating
sulfide-bearing waste streams, it is likely that other manufacturing , j
entities are achieving similar or better treatability efficiencies. .
CFI would be pleased to provide whatever data it has available on
this subject to EPA, if EPA would find these data useful. ' - /
RESPONSE . ,
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on the basis of whether the constituents in those wastes are "amenable" to
biological treatment. As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by
the President on March 26,1996, provides that the wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they.
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA.
It should be noted that the legislation does, however, mandate EPA to undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. '.-'-.., ,
36
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DCN PH4P116
COMMENTER Occidental Chemical Co.
RESPONDER SM ' . .
SUBJECT AMEN . . .
SUBJNUM 116 . ...
COMMENT ' ' . ,'
Oxychemical supports EPA's decision not to attempt to ban non-amenable
wastes from land-based biological treatment systems.
This is necessary due to the complexity of the issue and variety
of treatment system capabilities. .
.RESPONSE , . .
EPA is not prohibiting certain decharacterized wastes from land-based wastewater
treatment systems on die basis of whether the constituents in those wastes are "amenable" to
biological treatment As is discussed in the April 8,1996 partial withdrawal notice to the LDR
Phase III final rule (61 FR 15660), the Land Disposal Program Flexibility Act of1996, signed by
the President on March 26,1996, provides that die wastes in question are no longer prohibited
from land disposal once rendered nonhazardous. Because they are decharacterized before they
enter the impoundment, these wastes are no longer prohibited wastes under RCRA, and any
cross-media transfer of hazardous constituents cannot be regulated under RCRA. :
It should be noted that the legislation does, however, mandate EPA to .undertake a 5-year
study to determine any potential risks posed by cross-media transfer of hazardous constituents
from these surface impoundments. Comments and data which have been submitted in response
to the Phase III and Phase IV rulemakings addressing the issue of amenability of wastes to
biological treatment will be considered as part of this 5-year study. The findings of this study
may result hi proposed regulations for these units, if risks are in fact found that would warrant
such regulation. \
37
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38
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DCN PH4P020
COMMENTER Exxon Company Usa
RESPONDERNV.
SUBJECT CLNP , , ;
SUBJNUM 020 ,
COMMENT ' ' ' .;,., ? :'
B. EPA should clarify that de minimis losses of commercial chemical products to wastewater
systems do not trigger LDRs
. i . ,' ...
EPA removed the language in 40 CFR 268.1.eA that clearly stated that de minimis losses.
of commercial chemical products do not trigger LDRs. Exxon requests that EPA clarify in 40
CFR Part 268 that the de minimis loss provision for commercial products still exists. This
issue is of significant concern to Exxon Company, U.S.A. where our two largest refineries :
share a wastewater treatment plant with co-located petrochemical plants manufacturing
commercial chemical products. . . ' ,
''., - '":'.
RESPONSE
- *
EPA first proposed to create a de minimis provision for losses of characteristic wastes in
the report entitled "Supplemental Information Concerning the Environmental Protection
Agency's Potential Responses to the Court Decision on the Land Disposal Restrictions Third
Third Final Rule" prepared for the Notice of Data Availability on the Reponse to the Court
Decision, published January 19,1993. In the report, the Agency requested comments on
"wwhether an approach similar to the mixture rule exception in 40 CFR 2613(a)(iv)(D) should
apply to de minimis losses of ICR [ignitable, corrosive, and reactive] wastes" (emphasis added).
Again in this same report the Agency said "Consequently, the Agency is considering an
alternative whereby de minimis losses of ICR wastes (emphasis added) to wastewater treatment
systems would riot be considered to be prohibited wastes." (See page 39.) Confusion has arisen '
because.the language of 261.3(a)(iv)(D) refering to "commercial chemical products or chemical
intermediates" rather than specifying "characteristic wastes" was copied into 268.1 . The
Agency clarified the provision in the regulation of the Phase III final rule by changing 268.1 (e)(4)
to specify wastes instead of products and intermediates. Unfortunately, in the Phase III -
Withdrawal Rule published on the same day^ a typographical error occurred which indicated that
the Agency was withdrawing 268.1(e)-referring to de minimis losses in general-rather than
268.1(e)(4)(ii)referring to the de minimis losses provision that applied only to underground
injection wells injecting decharacterized wastes. Therefore, in the Phase IV final rule the Agency
is clarifying that the general de minimis provision of 268.1 (e) remains in the regulations and
applies to characteristic wastes rather than products or intermediates.
39
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DCN PH4P047
COMMENTER Merck
RESPONDERNV
SUBJECT CLNP
SUBJNUM 047
COMMENT
g. The other miscellaneous changes under 268.7 will also provide clarification and greatly ease
the burden of trying to understand the requirements under this section;
RESPONSE , . * ' "
The Agency appreciates your interest in, and support of our efforts to streamline the LDR
program and reduce paperwork burden on the regulated community.
, 40
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DCN PH4P035
COMMENTER Utility Solid Waste Activities Grp
RESPONDER NV .'
SUBJECT CLNP '.',-..
COMMENT VII. USWAG SUPPORTS THE SIMPLIFICATION OF THE LDR
NOTIFICATION
REQUIREMENTS. The proposed administrative changes to the LDR
requirements would eliminate several unnecessary regulatory .
burdens while facilitating compliance with the LDR regulations.
In particular, USWAG supports the following proposed changes:
Modification of the regulations to require that a generator
whose waste meets the appropriate treatment standard need only
supply a one-time notification and certification to the disposal .
facility, unless the waste composition changes. 60 Fed. Reg. at .
43678. Elimination of the requirement that a facility treating , '
waste in a 90-day accumulation unit to meet treatment standards
must first submit a waste analysis plan ("WAP") to EPA-or an
. authorized state for approval. Id. Reducing the LDR record .
retention time form five years to three years. Id. These
proposed modifications will greatly assist in streamlining the
LDR requirements. In addition, EPA proposes to allow small
quantity generators with contractual agreements in place for the
reclamation of their waste to be subject to reduced
; certification and notification requirements, provided that the ..
agreements comply with 40 C.F.R. ° 262.20(e). Id. at 43693
(proposed 40 C.F.R.« 268.7(a)(10)).. USWAG believes that this
reduced set of requirements should be equally applicable in
' situations where large quantity generators have tolling .
agreements in effect, and therefore, should be extended to cover .
such arrangements. Extending the scope of this reduced set of .
requirements will have the desirable benefit of encouraging
agreements for hazardous waste reclamation by reducing the
administrative burdens currently associated with such
transactions. '
RESPONSE
' ' ,-
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. The LDR provision pertaining to small quantity generators with tolling
agreeements was designed to capture the same universe as those captured by § 262.20(e),
generators of more than 100 but less than 1000 kg of hazardous waste per year, thus it is not
appropriate to extend the provisions of § 268.7(a)(10) to large quantity generators. The Agency
has provided relief to large quantity generators, however, by changing the requirement to provide
LDR notices and certifications with each shipment of hazardous waste to a one-time notice and .
41
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certification, provided the waste does not change and the receiving facility does hot change.
42
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DCN PH4P065 , . -
COMMENTER Safety-Kleen Corp. .
RESPONDER NV ; .
SUBJECT CLNP ', ,
COMMENT 2, Safety-Kleen requests that the Agency finalize the proposed :
improvements to the existing land disposal restrictions program
separate from the rest of the Phase III and IV proposals if the
Agency decides to defer action on the rest of these proposals. ;'
Safety-Kleen is concerned with the possibility that the LDR
Phase III and IV proposals may not be finalized for several
, months or even years, thus extending the time during which we ,
must comply with the existing LDR requirements. Both the Phase
III and Phase IV proposals offer LDR program modifications that
the EPA is not under a court order or other time constraint to
finalize, and that would benefit the regulated community without. ' ,
harming human health or the environment. For example, the
Agency is proposing to revise the LDR notification form record
retention requirement to be equivalent to that required for
, manifests (3 years); to eliminate reference to the California , .
, List wastes because they have all been incorporated into other ,
LDR provisions; and to eliminate redundant tables and language
that only serve to confuse the regulated community.
' ' J . > ' ' , ' !
,V^ \. ' ' . ' * t f
RESPONSE - . :
The Agency appreciates your interest in, and support of our efforts to streamline the LDR
program and reduce paperwork burden on the regulated community.
43
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DCN PH4P065
COMMENTER Safety-KIeen Corp.
RESPONDER NV .
SUBJECT CLNP
COMMENT 8. Safety-KIeen supports the Agency's efforts to. "clean up"
the LDR regulations. Safety-KIeen supports the Agency's efforts
.to eliminate confusion and contradiction in the LDR rules.
Safety-KIeen agrees that most of these changes will serve to
clarify and simplify the LDR regulations without adverse affects
on human health and the environment. Safety-KIeen is
particularly supportive of the proposal to modify the LDR
notification form retention requirements to correspond directly
with most other RCRA record retention requirements (3 years).
The inconsistency between the three-year manifest retention
requirements and the five-year LDR notice retention requirements
has created confusion in the regulated community, particularly
because the LDR form is generally attached to the manifest upon
receipt and in the facility files. Clearly, if a three-year
records retention requirement is appropriate for the manifest
information, it is also appropriate for the LDR notification . '
form information. .
RESPONSE
The Agency appreciates your interest in, and support of our efforts to streamline the
program and reduce paperwork burden on the regulated community.
44
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DCN PH4P008 , -...'. \
COMMENTED Florida DEP
RESPONDER PV -
SUBJECT CLNP
SUBJNUM . 008 , . ,
COMMENT . , . , , '
. 268.7(a)(5): I agree with the proposal to delete the requirement
for generators to submit Waste Analysis Plans. No one is submitting
them anyway. I agree that generators should have WAPs available for
inspection. . ,
268.7 Notice requirements I would prefer to^see all of these
provisions deleted. Instead, EPA should adopt an official uniform
1 . waste profile form. Each TSDF already requires a generator to
submit a waste profile prior to accepting the waste as part of the
1 §264 13 Waste Analysis plan. These forms should be adopted
uniformly* with updates required if the process generating the
waste changes. As part of §262.11 and §262.40, each generator
should be required to keep a waste profile on each hazardous and
solid waste generated at the facility for3 years from the date of
last disposal, excluding office paper trash and garbage.
Analytical data (if available) would be attached to and become part
of the waste profile. The waste profile already includes
information on the process, the waste codes, and physical
information that would affect treatment. The Waste Profile would
only need to be submitted to the TSDF onetime, not with every
shipment. " . .
We see a lot of generators and brokers conspiring to evade LDRs
', and RCRA altogether by omitting essential information on the waste
profile. If the generators were forced to sign certifications that
were RCRA enforceable on these documents, there would be a
greater incentive to comply: The currently optional boxes I and R,
reserved for the EPA waste number could be used for the generators'
waste profile numbers. The recent changes in DOT regulations make
the EPA waste number box redundant. There have been recent
. discussions on elimination of the manifest form, and relying on DOT
bills of lading. This would be a lot more palatable to the
regulators if bills of lading referenced the generator EPA ID
number and a specific waste profile number. Generators would keep
copies of the DOT bills of lading instead of manifests. TSDFs can
keep copies as part of their operating record, cross referenced to
. waste profile.
A couple of sample forms are attached that are already in use. To
improve the forms, I would add check off boxes for the waste
45
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categories "virgin" "used" "byproduct" and "sludge." I would also . ,
add spaces for the treatability group and statements regarding
whether the waste/constituents meet .treatment standards. A
statement should be added per §268.7(a)(6) for wastes that become
' excluded subsequent to generation. Although waste profiles are not
an EPA requirement, they are in universal use. If they became an
official form, generator paperwork would be reduced and easier to
understand. - ' ' - ''*'.
. ' \
RESPONSE.
Thank you for your support of the change made to 40 CFR 268.7(a)(5). As for your
suggestion to do away with all notification/certification requirements in 268.7 and rely instead on
the waste profile, the Agency is unable to make such a broad change at this time. As you point
out in your comment, the waste profile is not required by EPA regulations. To adopt it as a
Uniform notification document would require the coordination of EPA, DOT, the states, the
regulated community, environmental groups, and others. Such an effort was not possible within
the time constraints of promulgating the Phase TV final rule.
46
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DCN PH4P008
COMMENTER-Florida DEP
RESPONDER PV .
SUBJECT CLNP ' .- ' .
SUBJNUM 008 > .
COMMENT , , , .
'. ' Generator recordkeeping regulations are scattered throughout many v ,
sections which are referred to only by reference in Part 262. This
makes it difficult for the generators to conduct self audits. Along
with the.revisions to §268.7, Section 262.40.should be revised as .
follows: , '
' ' (c)A generator must keep records of any test results, waste ,
analyses, or other determinations made in accordance with §262.11
and §268.7 for at least 3 years from the date that the waste was .
last sent to on-site or off site treatment (including recycling), . ' . .
storage or disposal, including disposal of accumulated wastes in on .
site waste water treatment units. , , . - .
(d) Pursuant to §268.7(a), a generator must keep copies of all .
land disposal restriction notices and certifications made for ...
, wastes sent off site for treatment, storage or disposal. A
generator must also keep copies of the waste analysis plan, records
and certification statements for wastes treated on site or excluded
from the definition of solid or hazardous waste subsequent to the
point of generation. '.'.'..
(e), A generator must keep records of all inspections of required'^
emergency equipment and units accumulating or treating hazardous - '
waste pursuant to §262.34. (Add a reference to subparts AA, BB and
CC recordkeeping if EPA does not withdraw these provisions
for generators.) /
(f) A generator mvist keep copies of all personnel training
records, including job titles and position descriptions for persons
. managing hazardous waste as required under 265.16.
(g) The periods of retention referred to in this
section...(renumber and correct typo!) ',
Also: revise §262.44(a) to read :§262.40 (a), (c), (d), (e) and -
(g), recordkeeping. _ .
RESPONSE
The Agency thanks the commenter for their suggestions. They are beyond the scope of
this rulemaking, however, they will be considered as part of the effort to revise the LDR
regulations further in future LDR rulemakings.
47
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DCN PH4P008
COMMENTED Florida DEP
RESPONDER PV
SUBJECT CLNP
SUBJNUM 008 ,
COMMENT
Pg. 43692,4middle column 268.7(a)(5)(iii): There appears to be a ,
typographical error in the new §268.7(a)(5)(iii). It should
reference §269.7(a)(3), not (4). In addition, there is no provision
. here for sending decharacterized wastes off site for further
, treatment at a non RCRA facility. I suggest this section should
read: , ' ,
(Hi) Wastes shipped off site pursuant to this paragraph, or
disposed in an on-site Subtitle D facility, must comply with the .
. notification requirements of §268.7(a)(3) or §268.9(d),
as appropriate. ,
RESPONSE
' i
The Agency agrees there was a typographical error, and has incorporated language suggested by
the commenter into the regulation: The suggested language will be considered in future revisions
of the regulations. ' . ' .
48
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DCN PH4P008 .
COMMENTER Florida DEP ,
RESPQNDER PV ^
SUBJECT CLNP .
SUBJNUM 008 * i
COMMENT , ' -~ " ;
268.9(d)(l)(ii) Reference to "EPA hazardous waste code" should
read "EPA hazardous waste number(s)". This section is still fairly
obscure. In low concentration wastes, it is impossible to determine
if a sample of spent solvent is ignitable because of the listed '
> solvent constituent(such as acetone) or the unlisted solutes (such
as styrene, alcohols or aliphatic hydrocarbons).Since the
F001-F005 listings are almost guaranteed to exhibit a -
. characteristic, why not just make the UTS applicable to all spent
solvent wastes? ,
RESPONSE .
EPA has changed the.word "code" to "number" as suggested language by the commeriter.
In reference to the whether ignitable wastes are ignitable because of the listed solvent
constituent or the unlisted solutes, a waste that is identified as F001-F005 is not subject to the
requirement to identify and treat underlying hazardous constituents just because it also exhibits
the ignitable characteristic. In such a case, the treatment standards for the listed waste govern, ,
which are, by the way, UTS levels.
49
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DCN PH4P008
COMMENTER Florida DEP .
RESPONDER PV
SUBJECT CLNP
SUBJNUM 008
COMMENT , '
Revisions to 268.30-36, Appendix VII Deletion: The appendix-is
". still useful to inspectors who are trying to determine if a waste
was restricted at the time it was generated. I think that any waste
that became subject to restrictions within the previous 3 years
should be included in the appendix, especially if the recordkeeping .
time is reduced to 3 years. In addition, any national capacity . .
variances effective during this period should be noted in the
appendix. Alternatively, the appendix should cover back though the
time covered by the statue of limitations. If this is done, the
text revisions to §268.30-36 are acceptable.
v .
RESPONSE
The Agency has developed a new Appendix VII that incorporates the information
suggested by the commenter, and has revised sections 268.30 268.37 to include newly
restricted wastes. ,
50
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DCN .-> PH4P013
COMMENTER New York DEC
RESPONDER PV v
SUBJECT CLNP ,
SUBJNUM 013
COMMENT . ; ' . . "'
DEC agrees with the EPA that there is a definite need to
streamline the LDR regulation for understandability and ease of
compliance. Removal of unnecessary, outdated, confusing language
is highly recommended. DEC has endeavored to eliminate unnecessary
language from its LDR regulation since its inception. DEC has - '
been limited in this effort, due to the inclusion of certain
language in 40 CFR Part 268, while meeting the requirements for
State authorization. .
Specifically, DEC agrees with all of the proposed changes outlined
in III. A 1 through 6.Much of the difficulty and confusion
experienced with'the LDR are due to the complexity of the
regulation and its integration with other hazardous waste.
management regulations. These proposed changes will do much to
relieve that regulatory burden for generators, facilities, and
state regulators as well. Also, the proposed changes greatly .'
increase the clarity of the regulation, such as the elimination of V
' the references to the California List in40 CFR 268.7, and the
elimination of 40 CFR 268.32. A great deal of confusion
about applicability of the California List has arisen in the past.
/
' - " - "
RESPONSE V , .',"'
s »
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort, and your support of the LDR clarification effort.
51
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DCN PH4P013
COMMENTER New York DEC :
RESPONDER PV
SUBJECT CLNP
SUBJNUM 013
COMMENT .
DEC also agrees with the EPA's proposed simplification of the
notification and certification requirements of 40 CFR 268.7. DEC
has experienced many problems with notifications and certifications
in the past and may propose hi its next rulemaking to adopt these -
changes and require, with minor exceptions, that only 40 CFR 268.7
, requirements apply in New York in lieu of current state
requirements. A workable, simplified recordkeeping approach for
the LDR will allow New York State to defer to 40 CFR 268.7 (and
related recordkeeping, clarifications) and eliminate an
unintentional duplication that now exists for the regulated
community in New York State. .
RESPONSE , ,
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort.
52
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, DCN . PH4P017 : .
COMMENTER Kodak , . . '.
RESPONDER PV
SUBJECT CLNP
SUBJNUM 017 ' .. .
COMMENT
Finally, we applaud your plan to reduce the paperwork associated
with compliance with the LDR regulations .
RESPONSE .v
,* " " - *^""
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. - .
53
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DCN PH4P017 , .
COMMENTER Kodak :
RESPONDER PV
SUBJECT CLNP
SUBJNUM 017 ' _
COMMENT .;.-".
Paperwork Reduction
Kodak Supports the Portions of the Proposed Rule that Simplify
Paperwork. We support the following changes, because they will
reduce paperwork and save money without affecting environmental
protection: 1. The use of a one-time notification and certification
to the receiving facility for generators of waste whose
composition does not change and which meets the treatment standards
for the receiving facility hi § 268.7(a)(3).2. Consolidation of
1 paperwork requirements into a table in § 268.7(a)(4) for
generators and a table in § 268.7(b)(4) for treatment facilities to
simplify compliance reporting.3. Elimination of the requirement
in § 268.7(a)(5) for generators managing wastes in tanks or
containers to submit their waste analysis plans to the state or
EPA .4. Reduction of record retention requirements in §,
268.7(a)(8) from 5 to 3 years.
Recommendations Kodak recommends the adoption of the preceding
changes that reduce paperwork.
RESPONSE ,
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. . .
54.
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DCN PH4P024 / . .
COMMENTER Union Camp
RESPONDER PV
SUBJECT CLNP ,./'.'"'' -
SUBJNUM 024 ' /
COMMENT ; . ;
R. UCC supports reduction of reporting requirements
UCC supports EPA for its efforts to reduce reporting requirements
for generators to submit waste analysis plans to the state and
. region EPA (required by 268.7(a)(5)). This will make a big dent in
reducing the paper work burden on the regulated community, as well
as the agencies. These documents are already available for agency
, inspection at facilities required to have them. UCC further
encourages EPA to further reduce the reporting burden to
the regulated community in other areas of the regulations.
Resources can be spent in much more fruitful ways. .
RESPONSE . .
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. The Agency is committed to finding additional ways to simplify the
LDR regulations and reduce paperwork in future rulemakings.
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DGN PH4P027 . . ' _ .l
COMMENTER Rollins Environmental
RESPONDER PV .
SUBJECT CLNP
SUBJNUM 027 , . ^ .
COMMENT . : ;
The EPA is proposing several technical modifications to the Land
Disposal Restrictions (LDR) Program. The purpose of these changes
isto "cleanup", revise and simplify some of the requirements of
this program. RES fully supports this effort to streamline and
simplify the LDR's. Our only concern is that in some cases
streamlining may actually compromise human health or
the environment.
The vast majority of the proposed technical modifications do
"clean up", revise, or simplify the program without any
compromising of human health or the environment. However, there
are two proposed changes that could have a negative impact.
In the Agency's proposed change to section 268.5 a petitioner
could request a two year"case-by-case extension" from meeting the ,
LDR's. Presently, the language limits the petitioner to a one year
extension with the possibility of another one year extension after
the filing of a second petition. We support retaining the existing
requirement for a for each one year extension. . ,
We support retaining the existing requirement for two primary
reasons:
The commercial hazardous waste industry has grown and matured
sufficiently to safely handle the wastes that are being considered
for extensions, there is sufficient capacity within this industry
to handle these wastes; and
Granting two year extensions leads to the large scale disposal of
untreated wastes prior to the expiration of the extension, as
: opposed to treatment to minimize threats to human health and the
environment
' - ' ". ' -> ' ' ' ' ' '
RESPONSE " .
The Agency is persuaded that granting a second-year renewal at the the time the case-by-case
extension is applied for is a disincentive to speedy development of treatment capacity.
Therefore, the Agency is not promulgating its proposed approach and the final rule does not .
make such a change to the regulations at 40 CFR 268.5.
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DCN . PH4P027 x
COMMENTER Rollins Environmental
RESPONDER PV
SUBJECT , CLNP
SUBJNUM 027 / . , .
COMMENT , ,
, RES is also concerned about a change in the "Paperwork
Requirements Table". We support the intent of this table, that is ,
to centralize and simplify the LDR paperwork requirements. ' .
.However, m column 268.7(a)(2) the Agency is not requiring the
listing of underlying hazardous constituents (UHC's) on the LDR
notification for D001,2 or DO 12-43 .wastes! These constituents
should continue to be listed on this notification. /
RESPONSE -
<. ' .
. In the Phase III rule, the Agency changed its requirements for identificaiton of underlying
hazardous constituents inc characteristic wastes. The change indicated that if the generator or
waste management facility was going to analyze for the presence of ALL UHCs in a
characteristic wastes, then none of the UHCs had to be included in the LDR notification. The
Phase IV rule maintains this provision. Therefore if only a subset of UHCs is reasonably
expected to be present in a formerly characteristic waste, they must be .included on the LDR
notification. ' '
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DCN PH4P028 . .
COMMENTER Texas Utilities Services
.RESPONDER PV
SUBJECT CLNP ;
SUBJNUM 028 . .,->-
COMMENT >.
Texas Utilities supports the change in 40 CFR 268.7 related to
testing, tracking, and recordkeeping for generators, treaters, and
disposal facilities. The proposal would allow a generator to make a
one-time notification of a waste's hazardous characteristics so
long as those characteristics ' :
do not change. This is a "common sense" simplification of the
process. In addition, although a 90 day accumulator would still be
required to prepare a waste analysis plan, the plan would not have
to be submitted to EPA or the state, which would be an
administrative and paperwork savings for the agencies and business.
Finally, the reduction of LDR record retention requirements from
five to three years would benefit those that use surface
impoundments for treatment, without having any impact on human
health and the environment. .
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort
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DCN PH4P031 , .
COMMENTER Department of Energy .
RESPONDER PV ,
SUBJECT CLNP ,
SUBJNUM 031 , -
COMMENT . '<..'
DOE also supports EPA's continuing efforts to clarify and simplify
the LDR regulations. Nevertheless, the Department has several
comments on the specific regulatory language proposed by the /
Agency.
III. Improvements to Land Disposal Restrictions Program ,
, III. A. Cleanup of Part 268 Regulations '
1. p. 43677, col. 2 - EPA states that it is proposing to "clean
up" existing regulatory language that is outdated, confusing, or :i . .
unnecessary by clarifying some sections, and by condensing or
removing other sections. ...-'.
DOE supports EPA's continuing efforts to improve and simplify the
regulations governing the Land Disposal Restrictions Program. The
following comments are provided in response to the specific changes
suggested within this proposed rule.
RESPONSE . ': .
(The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. , ,
59
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DCN PH4P031
COMMENTER Department of Energy
RESPONDER PV
SUBJECT CLNP \
SUBJNUM 031 .
COMMENT ...-..'
2. p. 4367?; col. 3, Sec. 268.5 - EPA states that 40 CFR
268.5(e) would be amended to clarify that an applicant could be
granted additional time (up to one year) beyond the one-year
case-by-case extension to comply with LDR treatment standards.
The preamble further indicates that a showing of the need for the
additional time would have to be made in the application first
submitted for the case-by-case extension. ,
a. DOE agrees that giving individual waste generators an . .
opportunity to request additional time as part of the application
for the original case-by-case extension of the effective date is an
appropriate revision to the regulations. An approach of this type
could be applied to DOE mixed wastes. For instance, certain mixed
waste streams generated by DOE are not presently amenable to
treatment usuig typical hazardous waste treatment technologies,
and it is known that more than one year will be required for
technology development. Therefore, allowing the application for a
case-by-case extension to cover two years would improve the
efficiency of the case-by-case extension process.
b. DOE believes that the preamble language which discusses
giving individual waste generators an opportunity to request
additional time on a case-by-case extension could be misleading.
.As written, the preamble seems to indicate that additional time
may be granted only if requested when first applying for a
case-by-case extension. The proposed regulatory language presented
at 60 FR 43691, on the other hand, does not contain the limitation . ' ,
implied by the preamble language. In fact,,it specifically states
that additional time can be requested either hi the original
application, or at a later date. DOE supports the proposed .
regulatory language, and requests that EPA clarify, in the
preamble to the final rule, its intent with respect to when ,
requests for additional time (beyond a one-year case-by-case
extension) may be made. ' .
RESPONSE , .
The Agency has reconsidered its proposal to grant a second-year renewal of a case-by-case
extension at the the time the petition is made for the extension. Opposing comments stated that
allowing renewals to be granted when the petition is granted would be a disencentive to the
60
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speedy development of treatment capacity. Therefore, final rule does not incorporate such a
change to the regulations at 40 CFR 268.5. .
61
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DCN PH4P031 '.>'"
COMMENTER Department of Energy
RESPONDER PV ....,"
SUBJECT CLNP
SUBJNUM 031
COMMENT
3. pp.43677,col.3and43678,cols. 1&2,Sec.268.7-EPA
proposes to. § 40 CFR268.7 to reflect changes in LDR
notification requirements, to clarify existing LDR notification
requirements, and to generally simplify LDR notification '
requirements. The simplifications proposed include requiring
generators to submit notifications to receiving facilities only
once for wastes that meet the appropriate LDR treatment standards
(i.e., a notice and certification with each shipment would no
longer be mandated; if the waste composition or the process
generating the waste changes, anew notice and certification must
' then be submitted) and deleting the requirement that generators
submit waste analysis plans to States and Regions.'.
a. DOE supports EPA's proposal to eliminate the existing
requirement for a hazardous waste generator to submit a waste
analysis plan to the EPA or authorized state when treatment occurs
in an accumulation container, tank or containment building for the
purposes of compliance with LDR regulations. This approach will
reduce the burden on the generator, as well as on EPA or the
authorized state by eliminating the need to review such documents.
b. DOE agrees with removal of the requirement to send a notice
and certification to the treatment or storage facility with each
shipment of waste that meets the treatment standards. Under the*
new requirements, a generator (whose waste meets the
appropriate treatment standards) will be required to submit a
one-time notice and certification to the receiving facility unless
the waste stream or process changes. The new requirements
will provide major relief from burdensome paperwork requirements.
c. DOE has the following specific comments on the proposed
regulatory language for 40CFR 268.7:
(1) pp. 43691, col. 3 - 43693, col. 3
(a) 40 CFR 268.7(a)(l) -r This rewritten section contains, in
part, the following sentences: .
In addition, some hazardous wastes roust be treated by particular
, "' treatment methods before they can be land disposed. These
treatment standards are also found in§268.40 and are described in
detail in §268.42, Table 1. These wastes do not need to be tested.
DOE suggests that the last sentence quoted above may cause
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confusion in cases where more than one waste code are present in a
waste stream, and only one of the waste codes present has a
treatment standard that is a specified technology. In such cases,
testing may be necessary. DOE requests that EPA revise the
quoted language to clarify testing requirements in situations where
more than one waste code are present, and the LDR treatment
standard for only one waste code is a specified technology. '
(b) 40 CFR 268.7(a)(2) - This rewritten section indicates that a ..
generator who determines that its waste does not meet the LDR
treatment standards must notify the treatment or storage facility,
and the notice must include the information in column "268.7(a)(2)"
of the "Notification Requirements Table" in §268.7(a)(4)[emphasis
added].
(I) -The table in §268.7(a)(4) is actually titled "Paperwork
Requirements Table." DOE suggests consistency between the
regulatory text and the table. This comment also applies to the
proposed §§268.7{a)(3) and268.7(a)(4).
(ii) Based on existing 40 CFR §268.7(a)(l) [see 60.FR 244-245
(01/03/95)], it seems like a check () should appear next to item 4
in column'l268.7(a)(2)" of the Paperwork [sic] Requirements fable
in §268.7(a)(4)[requiring the notice to state the date that the
waste is subject to the LDR prohibition on land disposal].' DOE
requests clarification on whether EPA intended to change the
existing information requirement by omitting the check ( ).
(c) 40 CFR 268.7(a)(3) The first sentence of this rewritten
section reads, "If the waste meets the treatment standard: The
generator must send a one-time notice and certification to each
treatment or storage facility receiving the waste." [emphasis added]
In writing the above-quoted sentence, it appears that the existing
requirement (see existing 40 CFR 268.7(a)(2)) that the generator
provide a notice and certification to land disposal facilities that
receive waste meeting the treatment standard (as well as to
treatment or storage facilities) was inadvertently omitted.
Therefore, DOE suggests that the phrase italicized and underlined
above be revised to say,"treatment, storage, or land disposal
facility." \ .
(d) 40 CFR268.7(a)(3) - The second and third sentences of this
rewritten section read, "The notice must state that the waste meets
the applicable treatment standards set forth in §268.40 or §268.45.
The notice must also include the information indicated in column
"268.7(a)(3)" of the Notification Requirements Table in §268.7(a)(4)."
Based on existing 40 CFR 268.7(a)(2), it seems like checks ()
should appear next to items 2 and 3 in column "268.7(a)(3)", of the
63
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Paperwork [sic] Requirements Table in §268.7(a)(4) [requiring,
respectively, that the notice state the constituents of concern in
certain wastes, as well as the wastewater/nonwastewater
category and subcategory within the waste code (if any), and
include waste analysis data, when available]. DOE requests
clarification on whether EPA intended to change the existing
information requirement by omitting the checks ().
(e) 40 CFR 268.7(a)(3) - The fourth sentence of this rewritten
section reads,"Hbwever, generators of hazardous debris excluded
from the definition of hazardous waste under §261.3(e)(2) of this
chapter are not subject to these requirements."
On March 3,1992 [57 FR 7628], EPA promulgated an interim final
rule which simultaneously removed and reissued 40 CFR 261.3,
including the "mixture" and"derived- from" rules. The revised 40
CFR 261.3 included a termination date or"sunset provision" (40 CFR
261.3(e)) for the reinstated "mixture" and"derived-from" rules.
On October 30,1992, EPA removed the sunset provision (40 CFR
§261.3(e)) from the regulations because many commenters on the
interim final rule urged the Agency to provide additional time for
evaluation of revisions to the "mixture" and "derived-from" rules
and expressed concern about the expiration date [see 57 FR 49279],
Since 40 CFR 261.3(e) has been removed from the regulations, and
since,, even before it was removed, §261.3(e) did not address
hazardous debris, DOE believes the reference to §261.3(e)(2) in the
above-quoted sentence from proposed 40 CFR268.7(a)(3) is an error.
Based on the existing regulatory language in 40 CFR268.7(a)(2),
DOE believes that the reference hi the quoted sentence should be
to either 40 CFR 261.3(9(1) or 261.3(f)(2) [excluding certain
hazardous debris from regulation], instead of to 40 CFR .
261.3(e)(2).
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort The commenter references to apparent mistakes in the Paperwork
Requirements table have been noted by other commenters. EPA is working to eliminate
the confusion surrounding the table and will publish a revised table with the final rule.
The commenter points out the fact that in 268.7(a)(3), a one-time notification has been
required only for generators sending waste to treatment or storage facilities. This
notification provision should also apply to generators that send waste to a disposal facility
as pointed out by the commenter. This has been corrected hi the final rule. The
commenter addressed a statement in 268.7(a)(l), claiming that it could be confusing.
EPA agrees that this statement could be confusing and mat if more than one waste code is
64
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present, testing may be necessary; language has been added to clarify this situation. The
commenter correctly pointed out that the 261.3(e) was not the right citationthe citation
has been corrected to refer to 261.3 (f). ,
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DCN PH4P031,
COMMENTER Department of Energy
RESPONDER PV , .
SUBJECT CLNP /
SUBJNUM 031
COMMENT '''' . %< .
(f). 40 CFR268.7(a)(4)~ DOE requests clarification of this ' ,
rewritten section. Existing regulations at 40 CFR 268.7(a)(3)
require generators of hazardous waste that is subject to an .
exemption from LDR treatment standards (e.g., a case-by-case .
extension under §268.5, an exemption under §268.6, or a nation-wide
capacity variance under subpart C) to include the following
information on a notice to any facility receiving the waste:
I. EPA Hazardous Waste Number; ii. Constituents of concern for ,
. certain wastes, as well as the wastewater/nonwastewater category
and subcategory (if any) within the waste code; iii. Manifest
number; iv. .Waste analysis data, when available; v. Certain
information for hazardous debris that will be treated using }
the alternative treatment technologies provided by §268.45;vi.
Certain^^information for hazardous debris that will be treated in .
accordance with the requirements applicable to the contaminating
waste; and vii. Date on which the waste is subject to the
prohibition on land disposal. ,
These existing requirements are changed by rewritten section 40
CFR 268.7(a)(4).Specifically, items ii, iv, v, and vi are no
longer required. Further, a new requirement for a certification :
statement has been added. EPA does not discuss or explain these
changes in the preamble. Therefore, DOE requests
clarification about whether EPA intended to make such changes. , '
Generally, the changes seem appropriate for exempt wastes, and DOE
would support them if they, are being proposed.
RESPONSE
i \ ' - . -
The omission of these data and the requirement for anew certification were intentional
changes. EPA considers them to have been proposed through general preamble language and
through the regulatory language mat the commenter refers to.
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DCN PH4P031
COMMENTER Department of Energy ' ,
RESPONDER PV .
SUBJECT CLNP , .
SUBJNUM 031 ^
COMMENT '
(g) 40 CFR 268.7(a)(4), Paperwork [sic] Requirements Table - DOE
suggests that EPA consider expanding this table to include the
paperwork requirements for lab packs.
(h) 40 CFR 268.7(a), Paperwork [sic] Requirements Table (item 2)
' -. « This item, under the "Required Information" column, is worded as
follows: "The constituents for F001-F005, F039, and underlying
hazardous constituents, unless the waste will be treated and
monitored for all constituents (in which case none are required to
be listed). The notice must include the applicable '
wastewater/nonwastewater category (see §§268.2(d) and (f)) and
subdivisions made within a waste code based on waste-specific
criteria (such as D003 reactive cyanide)."
DOE requests clarification of the first sentence of proposed item
2. Should this sentence be modified to read, "The constituents of
concern for F001-F005 andF039 wastes, and underlying hazardous
, constituents for all characteristically hazardous wastes (as (
defined by 40 CFR 261.21 - 261.24), unless the waste will
' be treated and monitored for all constituents (in which case none
are required to be listed)" ? / ;
RESPONSE
EPA agrees with the commenter and applied the new one-time notification provision to
lab packs, along with other hazardous wastes that do not meet the treatment standard as
generated. The wording of 40 CFR 268.7(a) has been clarified as suggested by the commenter.
67
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DCN PH4P031 . ;
COMMENTER Department of Energy ; '
RESPONDER PV
SUBJECT CLNP - /
SUBJNUM 031 .
COMMENT
(I) 40 CFR 268.7(a), Paperwork [sic] Requirements Table (item 5)
- This item, under the "Required Information" column, provides
the wording for a certification statement, but neither the item nor
accompanying regulatory text indicates who is required to sign the
certification.
DOE suggests that the language of existing 40 CFR 268.7(a)(2)(ii)
indicating that the certification must be signed by an authorized
representative of the generator be included either in the Table, or
in accompanying regulatory text.
RESPONSE v
EPA has added the information indicating who is required to sign the certification
required under 268:7(a)(2)(ii).
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DCN PH4P031 , ,
COMMENTER Department of Energy
RESPONDER PV
SUBJECT CLNP .
SUBJNUM .031 . , ., ^
COMMENT
(j) 40 CFR 268.7(a)(5)(iii) - EPA's proposed language for this
section reads: "(iii) Wastes shipped off-siie pursuant to this -f ,-
paragraph must comply with the notification requirements of .
§268.7(a)(4)."
DOE requests verification that the cross-reference is correct It ^ .
appears that it should be §268.7(a)(3) (discussing generator ,
'' notification requirements when waste meets the treatment standard)
rather than §268i7(a)(4) (discussing reporting and recordkeeping
for wastes that are excepted from treatment requirements). '' ' \
RESPONSE ' ,
S V " " *
The commenter is correct, EPA inadvertantly refered to.268.7(a)(4) when in fact the
reference should be to 268.7(a)(3). This has been corrected in the final rule.
69
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DCN PH4P031
COMMENTER Department of Energy
RESPONDER PV
SUBJECT CLNP .
SUBJNUM 031 ; , *. .
COMMENT , , ^ ' ,
(m) 40 CFR 268.7(b)(4) - See comment III.A, item 3.c.(l)(e) .
above concerning the cross-reference in this section to 40 CFR
261.3(c). It appears that this provision [proposed §268.7(b)(4)] .
N should be revised to refer to §261.3(f).
4. p. 43678, col. 3, Sec. 268.30 - 268.37 - EPA proposes to
remove 40 CFR 268.31 through 268.37, and to replace the existing 40
CFR 268.30 \yjth a new section that identifies the prohibition dates
of the wastes covered by the LDR Phase IV rule. ' ,'
' a. The following specific comments are offered in response tot _ ^
the language proposed for new 40 CFR 268.30. , -
"(1) p. 43694, cols. 1-3
(a) 40 CFR 268.30(a) - DOE requests that EPA confirm that the .
effective date for the prohibition from land disposal of D004-D011
and F032, F034 and F035 actually should be November 20,1995 as
stated in this section. DOE believes EPA intended this proposed .
regulatory language to contain the parenthetical" [insert date 90
days from publication of final rule]" rather than an actual
date.(b) 40 CFR 268.30(b) - DOE requests that EPA confirm that
the effective date for the prohibition from land disposal of soil
and debris contaminated with F032, F034 and F035 and radioactive
wastes mixed with D004 - D011 wastes (as measured by the TCLP) . :
actually should be August 22,1997 as stated in this section.
, DOE believes EPA intended this proposed regulatory language to
contain the parenthetical "[insert date two years from publication
of final rule]" rather than an actual date.
(c)40 CFR 268.30(c) - DOE requests that EPA confirm the
correctness of the dates in this proposed section. DOE believes
that, in the proposed language, the parenthetical "[insert date 90
days from publication of final rule]" should replace"November 20,
1995" and the parenthetical "[insert date two years .
from publication of final rule] "should replace "August 22,1997."
, ' ~'. '
i ., '
RESPONSE
The commenter is correct that the cross-reference should be to 261.3(f). In addition, the
effective dates of the treatment standards for wood preserving wastes-were wrong. These have
been corrected in the final rule.
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DON PH4P031
COMMENTER Department of Energy , 'v ......
RESPONDER PV
SUBJECT CLNP J . '
SUBJNUM 031
COMMENT , ^
5. p. 43678, col. 3, Appendices - EPA proposes amending 40 CFR
Part 268, Appendix VI to clarify that characteristic wastes that ,
also contain UHCs must be treated not oiuy by a "deactivating"
technology to remove the characteristic, but also treated
to achieve the UTS for UHCs. ,
DOE does not object to the clarification which EPA proposes.
However, DOE notes that the treatment standard prescribed raises a
troubling issue for deactivation by detonation of explosives(D003)
containing toxic metals. In the LDR Phase III proposed rule, EPA ,
proposed modifying the table in 40CFR 268.40, "Treatment Standards
for Hazardous Wastes," to indicate that the LDR treatment standard
for both wastewater and nonwastewater forms of "D003
Explosives Subcategory" would be "DEACT and meet §268.48 ,
standards." [60 FR 11702,11742(03/02/95)] This proposed
treatment standard for the D003 Explosives Subcategory is ' .
replicated in the LDR Phase IV proposed language for the table in
§268.40. [60 FR 43654,43694 (08/22/95)] There is no obvious way,
in certain explosive wastes, that UHC metals can be treated to meet.
UTS either before or after deactivation by detonation. Since
detonation is the primary method by which explosives are ,
deactivated, DOE perceives this issue to be -
potentially significant. Therefore, the Department requests the
Agency to address this issue and to provide the opportunity for the .-
affected regulated community to submit information for the ' .. ,'
Agency's consideration.
RESPONSE ,
The Agency has established a treatment standard of "deactivation" with no requirement to
meet UTS for UHCs for unexploded ordnance subject to an emergency response. The Agency
believes that this treatment standard will expedite treatment of unexploded ordnance in situations
that cause imminent threats to human health and the environment. In situations other than an
emergency response, UHCs must be treated in characteristic reactive wastes. In cases when it is
not possible to treat or confirm compliance with UHC levels, one may petition for a variance
from the treatment standard. -
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DCN PH4P034 , t
COMMENTER CMA UIC Task Force
RESPONDER PV '
SUBJECT CLNP . " ~ ' - (
SUBJNUM 034
COMMENT
The UIC Group has worked with EPA in the Agency's development of a
regulatory system that is protective of human health and the .
environment while enabling reasonable mechanisms for > " ' '
timely compliance: We support EPA's efforts to streamline record
keeping requirements and to make the land disposal restrictions . .
(LDR) program easier to comprehend by deleting outdated . .
language. EPA continues to work towards eliminating requirements
that create additional regulatory burden without providing
additional protection of the environment by clarifying the , »
applicability of the de
minimis exemption. The UIC Group, however, urges EPA to adhere to
the Joint Stipulation agreed to by CMA and EPA on May 28,1993,
which provides exemptions for injection of decharacterized wastes. \
RESPONSE
EPA first proposed to create a de minimis provision for losses of characteristic wastes in
the report entitled "Supplemental Information Concerning the Environmental Protection
Agency's Potential Responses to the Court Decision on the Land Disposal Restrictions Third
Third Final Rule" prepared for the Notice of Data Availability on the Reponse to the Court
Decision, published January 19,1993. In the report, the Agency requested comments on
"wwhether an approach similar to the mixture rule exception in 40 CFR 261.3(aXiv)(D) should
apply to de minimis losses of ICR [ignitable, corrosive, and reactive] Bastes" (emphasis added).
Again in this same report the Agency said "Consequently, the Agency is considering an '
alternative whereby de minimis losses of ICR wastes (emphasis added) .to wastewater treatment
systems would not be considered to be prohibited wastes." (See page 39.) Confusion has arisen
because the language of 261.3(aXiv)(D) refering to "commercial chemical products or chemical
intermediates" rather than specifying "characteristic wastes" was copied into 268.1. The
Agency clarified the provision in the regulation of the Phase in final rule by changing 268.1(e)(4)
to specify wastes instead of products and intermediates. Unfortunately, in the Phase III
Withdrawal Rule published on the same day, a typographical error occurred which indicated that
the Agency was withdrawing 268.1(e)-refening to He minimis losses hi general-rather than
268. l(e)(4)(ii)referring to the de rninimis losses provision that applied only to underground
injection wells injecting decharacterized wastes. Therefore, in the Phase IV final rule the Agency
is clarifying that the general de minimis provision of 268.1 (e) remains in the regulations and
applies to characteristic wastes rather than products or intermediates. ,
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DCN PH4P036 : ,
COMMENTER American Iron & Steel Ins . /
RESPONDER PV
SUBJECT CLNP
SUBJNUM- 036 , /
COMMENT . .. " : .
AISI generally supports EPA's proposal to "clean up" the existing
LDR regulations at 40CF.R. Part 268 by clarifying existing
provisions, simplifying the current regulatory language,
and deleting sections that are outdated or otherwise no longer
necessary. See 60 Fed. Reg. at 43,677. -' '
The current LDR regulations are unnecessarily complicated,
confusing, and in some cases even misleading; In order to .
. facilitate compliance, it is imperative that the rules be clear,
concise, and accurate. Although the Agency's proposal does not
achieve this goal completely, it is a significant step in the right
direction. Accordingly, AISI urges the Agency to adopt
the"housecleaning" amendments to the^art 268 regulations.
RESPONSE .-..--.
The Agency thanks you for your.interest in and support of the paperwork burden
reduction effort.
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DCN PH4P041 .
COMMENTER Sterling . ,--s " '
RESPONDER PV
SUBJECT CLNP . ,
SUBJNUM 041 %
COMMENT
Also for this reason, we support EPA's proposal to revise the
notification provisions of 40 C.F.R.§ 268.7 to eliminate the
requirement to identify regulated constituents on waste streams
injected in Class I wells with approved petitions .These
constituents have already been identified hi the petition process .
and a requirement to further analyze and report on these
constituents affords no additional environmental benefit-but could
impose additional, costly burdens on deep well operators. ;
RESPONSE '
^ ( *s
The Agency reminds the commenter that the EPA hazardous waste numbers) for. any
wastes must be included on the one7time notification that is placed in the facility's records, as
must the wastewater/nonwastewater category. In addition, the manifest number is included on
the one-time notification, and the facility must include when the waste will be subject to LDR
prohibitions. The Agency signficantly reduced the amount of information required on the ,
notice, however, by eliminating the requirement to put underlying hazardous constituents
potentially present in characteristic wastes. It would appear that the commenter is referring to
this paperwork reduction, and the Agency thanks the commenter for theirr interest in and support
of the paperwork burden reduction effort
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DCN PH4P047
COMMENTER Merck ,
RESPONDER PV
SUBJECT CLNP - ,"
SUBJNUM 047 ' . .
COMMENT,
Merck supports the Agency's attempt to clean up the existing
regulatory language for the LDR program. The regulatory language
- ' that currently exists is confusing and as such .
' needlessly complicates compliance efforts. We believe that _
clarification of this language will help to ensure a
high level of compliance in the regulated community and conserve
resources. Specifically we support the following changes:
1. Section 268.4 is being changed to clarify that there are no
additional recordkeeping requirements in 268.4 over and above
what's required by 264.13 and 265.13. .
2. Section 268.5 is being clarified to indicate that an applicant
could be granted additional time beyond the one year case-by-case
extension; '-.-., - . -
3. a. Section 268.7 is being modified to clarify what
notifications are required and to simplify the ~ . ;
regulatory language. It is critical that the Agency ensure that
the drafted language actually achieves this objective to prevent
further confusion from being added to the program..
The consolidation of generator paperwork requirements into a table
' at 268.7(a)(4) and treatment facility requirements at 268:7(b)(4)
would greatly help the Agency achieve this goal. Consolidation of
ail requirements from the existing tables at 268.41,268.42 and
268.43 into a consolidated table will also strongly support this goal.
b. We support the removal of references to the California list and
concur with the Agency that there is no longer a reason to evaluate
; wastes against this list, since most characteristics of
the California list wastes are addressed in other treatment
standards under LDR. ..",.-.
c. Limiting the notification of the receiving facility to a one
time notice for wastes that meet the
treatment standards and do not change is an intelligent approach
that will still ensure enough information is exchanged for tracking
purposes while minimizing the regulatory burden.
d. Section 268.7(a)(8) will allow generators managing wastes in
containers, tanks, or containment buildings to only keep the Waste
Analysis Plan on-site rather than submitting it to the Agency for
review. We believe this proposed change is an intelligent
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r
acknowledgment of the limitations of Agency resources and therefore
the need to prioritize them to where they are most needed; and the
superior knowledge generators have of the characteristics of their
waste. This change is necessary to ensure that wastes are not
stored on-site for excessive periods of time awaiting Agency review s
of Plans. There is adequate guidance available to ensure that
Plans address the issues then need to and further support of their
adequacy can be assured through inspections by the Agency. .
e. Changing record retention times fiom five to three years will
allow companies to manage LDR records with other RCRA records, thus
freeing company resources for other RCRA work.
f. The Agency has indicated an intent to change the lab pack .
notification requirements.of 268.7(a)(8) to only include the
requirements of 268.7(a)(2), 268.7(a)(6), and 268.7(a)(7) based on
the assumption that the alterative treatment standards for lab
packs are based on a method of treatment and therefore is no need
to know if the wastes are wastewater's or nonwastewaters. We concur ..
with this assumption and support me elimination of any paperwork
that is not absolutely necessary.
v '" . '
RESPONSE
The Agency has finalized the changes pointed out by the commenter, with one exception:
no change is being made to 40 CFR 268.5 to allow a renewal to be applied for at the time the
petition is made for a case-by-case exemption. Therefore, the regulations at 268.5 remain <
unchanged. The Agency thanks the commenter for their interest in and support of the paperwork
burden reduction effort , , . .
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DCN PH4P048 '
COMMENTER Chemical Waste Management .
RESPONDER PV , .
SUBJECT CLNP .
SUBJNUM 048
COMMENT '
1. Section 268.5 - Procedures for case-by-case extensions to an
effective data. (60 Fed. Reg. at 43,677)
The, Agency is proposing to amend §268.5(e) to clarify an,
applicant can be granted additional time (up to one year) beyond .
the one-year case-by-case extension, when the applicant first .
applies for the extension. ^
CWM supports this amendment to reflect that the additional
one-year extension can be requested and received with the initial
application request.
RESPONSE
The Agency has reconsidered its proposal to grant a second-year renewal of a case-by- : '
case extension at the the time the petition is made for the extension. Opposing comments stated
that allowing renewals to be granted when the petition is granted would be a disencentive to the
speedy development of treatment capacity. Therefore, final rule does not incorporate such a
change to the regulations at 40 CFR 268.5.
2. Section 268.7 - Waste Analysis and Recordkeeping (60 Fed.
Reg. at 43677)
CWM supports the Agency's proposal to streamline the waste
acceptance procedure by eliminating obsolete (references to 268.41)
and inconsistent requirements (e.g., 5 years for record
retention) from the existing regulations. It has been CWM's
experience that the existing notification/certification
requirements of this section do not yield useful information when
evaluating methods for managing a restricted waste. Therefore, CWM
v supports the Agency's efforts to delete non-beneficial paperwork
from the hazardous waste regulations. Provided below are detailed
comments on each section of the proposed amendments to the LDR
recordkeeping requirements. .
RESPONSE ,
'i . ' ' . p -
The Agency thanks you for your interest in and support of the paperwork burden
' ' 77
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reduction effort. .
a. 268.7(a)(2)
1. California List Applicability
The Agency has proposed to delete any references to § 268.32
and RCRA 3004(d), California List wastes because the Agency
believes that existing treatment standards supersede all Statutory
standards. CWM generally agrees with the Agency in its evaluation;
however, notwithstanding the Agency's desire to make this change
. the following California List wastes appear to be restricted -.
under RCRA 3004(d): Liquid waste containing greater than or equal to SO
ppm Polychlorinated Biphenyls (PCBs); Liquid or nonliquid wastes with greater
than or equal to 1,000 ppm Halogenated Organic Compounds (HOCs)
listed in Appendix III; and Liquid waste containing greater than or
equal to 134 ppm Nickel or 130 ppm Thallium.
It is CWM's understanding that a hazardous waste (e.g., .-
D002)containing PCBs at greater than 50 ppm must be treated
using incineration (INCIN) or fuel substitution (FSUBS).' CWM
believes that this standard is correct .because when there is an
inconsistency between RCRA and TSCA regulations, the most stringent
standard governs. This citation is found in §761.1 (e). A review
of both regulations finds that the regulatory standard of INCIN or
FSUBS could be construed to be more stringent than existing
PCB requirements. Under existing PCS disposal regulations,
specific liquid PCB wastes are eligible for disposal in a TSCA
approved chemical landfill without undergoing additional treatment.
Specific examples include:
Liquid hazardous waste containing PCBs less than 500 ppm which have
been treated (i.e., chemically) to render the waste non-liquid.
See § 761.60(a)(3) & .75(bX8)(ii); and
Containerized liquid hazardous waste containing PCBs less than 500
ppm which meet §264.314(d). , ' ,
It is CWM's opinion that requiring a generator to meet a , .
specific treatment technology would be more stringent than the
existing PCB regulations which do not require a specified
treatment technology.
CWM also requests that the Agency clarify its rational with
respect to why the other California List (i.e., HOCs and specific
metals)wastes listed earlier are no longer subject to Statutory
restrictions. CWM believes that the California List restriction is
applicable to a F005 listed waste which contains greater than 1,000
ppm of HQCs. lii this example the waste contains toluene, which was
used for its solvent properties, and chloromethane at .greater than
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; 1,000 ppm; Past guidance from the Agency has been that the
California List HOC standards do not apply where the waste is
subject to a part 268, Subpart D treatment standard for a specified
HOC. In addition, the Agency has stated that where a hazardous
waste contains both HOCs and non-HOC constituents, the waste
would be prohibited from land disposal until it has met the
treatment standard for both HOC and non/HQC constituents. See 52
Fed.Reg. at 25,773. In this example there is no treatment standard
for chloromethane in subpart D. In accordance 'with the guidance,
given by the Agency, CWM believes, at a minimum, that such
waste would be subject to the 268.42(a)(2) treatment standard
of INCIN. Because of the complexity and confusion which
has surrounded the California List, CWM strongly recommends that
the Agency provide clear and concise guidance as to the
'applicable LDR regulations for such waste streams. ,
Further, CWM believes that a liquid waste which is listed as
, , anF006 hazardous waste and contains thallium at greater than
130ppm would be subject to a California Listing restriction. In
this example, CWM requests that the Agency determine the
waste's applicable LDR standards. Specifically, would the waste
require treatment to meet the F006 listing under section 268.40 i
and to the Statutory level for nickel, or would the waste only be
subject to the F006 listing under section 268.40? CWM believes that
the waste should only be subject to the 268.40 requirements for
nickel under the F006 listing. .
CWM does not believe that it is appropriate to assume that
all California List standards have been superseded. CWM believes -
that it is critical that the Agency evaluates whether this unique
type of hazardous waste continues to have a treatment standard
identified under RCRA 3004(d). CWM believes that it is the
Agency's responsibility to provide the regulated community with
clear guidance on this complex issue. . :
If the Agency's review determines that all California List
standards have been superseded, the CWM supports the Agency's
decision to delete any reference with requires a notification of
the treatment standards for these waste. On the other hand, if the
.. Agency determines that specific California List standards continue
to exist, CWM recommends that the Agency identify the types
'of restrictions which may apply and list them. Listing such
' applicable restrictions should eliminate any future confusion
regarding the California List.
RESPONSE
-'.''.' 79
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The Agency continues to believe that all the treatment standards for California List
wastes have been superseded by more specific standards (55 FR at 22675; 52 FR at 29993). The
Agency believes that the treatment standards for listed hazardous wastes are the most specific.
Next would be the characteristic waste treatment standards with their associated treatment
standards for underlying hazardous consitutents (UHGs).
In 1990, the Agency stated its belief that all standards had been superseded at that time
with the exceptions of (1) liquid hazardous wastes that contain over 50 ppm PCBs; (2) HOC-
containing wastes identified as hazardous by a characteristic propertly mat does not involve .
HOCs, as for example, an ignitable waste that also contains greater than lOOOppm HOCs; and (3)
liquid hazardous wastes that exhibit a characteristic and also contain over 134 mg/1 nickel and'
130 mg/1 of thallium. These three exceptions have now become subject to more specific
standards as explained below. All of the wastes in these examples are subject to the LDR
requirement that all UHCs reasonably expected to be present in a characteristic hazardous waste
at the point of generation must be treated to meet Universal Treatment Standards (UTS) (and, of
course, the hazardous characteristic would also have to be treated prior to land disposal).
What is eliminated under this approach, however, is the requirement in some cases to
incinerate the waste rather than treat in any way other than impermissible dilution to meet UTS
levels. The Agency does not view this as in any way making the regulations less stringent The
Agency sets methods of treatment when the residues cannot be analyzed to see if they meet UTS,
or when the technology is clearly far superior to other types of treatment for a particular waste.
Neither of these conditions exist for the examples provided by the commenter. In the case of
PCBs, they must meet UTS and then be disposed in a TSCA-approved landfill. The Agency
believes that regulations under two statutes are as protective as required incineration of the PCBs.
While the Agency once believed that it was necessary to require incineration of high-HOC
wastes, it is possible that they can be adequately treated i.e.treated in a way that destroys, or
removes these constituents from the waste before disposal -by other technologies to meet the
UTS concentration levels. Therefore the California List treatment standards are superseded and
are no longer in effect in the RCRA program. ; . ,, ' '
2. Notifications required for each shipment
Existing regulations require that for each shipment of waste
a generator must notify the treatment or storage facility in
writing of specific information. In an effort to assist the Agency
in streamlining the LDR regulations CWM proposes the
following option which CWM believes will provide a greater benefit
to generators of restricted waste.
The Agency established a notification requirement for each shipment
when the first Land Disposal Restrictions were promulgated. See 51
Fed. Reg. at 40,572 (November 7,1996).Beginning with this
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prohibition and continuing through the Phase IILDR rule, the
Agency has consistently stated that the disposal facility has the
ultimate responsibility in ensuring that all restricted wastes meet
applicable treatment standards before being land disposed. This
burden has directly effected how commercial hazardous waste
management companies develop and maintain waste approval
procedures. Waste approval procedures are designed to evaluate
whether wastes are acceptable for management One of the steps in
the process to determine whether to approve or disapprove a waste
stream for management is to determine what treatment standards are
applicable and whether the waste requires treatment. This * ' .
information must be received prior to shipment in order for a
treatment or storage facility to determine if the waste is
acceptable for recipe and treatment. The information required in
268.7(a)(l), except for the manifest number, has already been
obtained and maintained in a file which identifies the
waste stream. This is accomplished through the waste profile
and. approval process at all CWM facilities. Through this process
CWM operations know prior to receipt of the waste whether it
requires treatment. Therefore, the notifications submitted by a
generator with each shipment only provide redundant information.
In addition, the waste stream approval process used by CWM includes
a comprehensive review process which provides
significant information on the critical physical and chemical
parameters of the waste being handled. In fact, the CWM waste
stream review and approval process is similar to the recycling
tolling agreements which are entered into by small quantity
generators (SQGs). Since June 1,1990 such agreements have allowed
SQGs to send a one-time LDR notice to the receiving facility. See
existing §268.7(a)(10) for requirements applicable to tolling
agreements. The Agency promulgated this minimal notification :
requirement because of the belief that such tolling agreements
provided the receiving facility with sufficient knowledge of the
nature of the waste, and that recycled waste was picked up at
regular intervals. This fact is also true of hazardous waste which
is not destined for recycling. The CWM approval process is used to
identify me different waste streams generated by a customer. Like ',
waste streams are managed under one profile. If the waste stream
deviates from the parameters established by the waste profile, the
deviated waste is required to be profiled differently. The end
result is that CWM has obtained the necessary information, prior to
shipment, to manage the waste in accordance with permit conditions,
LDR regulations, and operational conditions. It is CWM's belief .
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that a tolling agreement is substantively similar to a well
documented waste approval process. The main difference is that the
waste approval process. The main difference is that the waste
approval process provides more detailed on a broader range of
materials than most conventional tolling agreements. The.lestof
significant knowledge is easily met. Approved waste are also
linked to a business contract which established an arrangement for
properly transporting the waste for proper treatment, storage, and
. disposal. ,
Therefore, CWM recommends that the Agency amend the regulations
under existing § 268.7(a) & (b)(4) & (5) to require a notification
and certification be required only with the initial shipment
Unless the waste stream (e.g., profile) changes, the generator '
would not be burdened with submitting paperwork and keeping a copy
of this paperwork in their files. This will contribute a
significant reduction,to the burden hour currently mandated by '
the Agency's requirement to send notices with every shipment .
In summary, CWM recommends that the Agency amend section .
. 268(a) to read:
"If the waste does not meet the treatment standard: With the
initial shipment of waste to each treatment or storage facility,
the generator must notify the treatment or storage facility in ' .
writing."
RESPONSE /, , '
The commenter's suggested language has been considered in writing the regulation.
3. Notification of date waste is subject to prohibition
This requirement was added during the technical amendments to
the Phase 0 LDR rule. Subsequent conversations with personnel
from the Waste Treatment Branch confirmed that it was not the
Agency's intent to require this information, it was inadvertently
added to this section. In addition, this requirement has
historically been applicable only to restricted waste which was
subject to case-by-case extension, capacity variance, etc.
Therefore, CWM supports the Agency's proposal to delete it from the
proposed §268.7(aX2). -
RESPONSE
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The Agency acknowledges the commenter's support.
4. Paperwork Requirements Table ., ,
The Agency has proposed listing the requirements applicable for.
the different notification forms by addressing each requirement in
a table. The.concept is good but CWM believes that the ' -
. check marks used to identify each requirement are hard to
distinguish. Therefore, CWM is concerned that a generator or
regulator could misread which section is checked. CWM recommends
that the Agency add aline, which separates each row in the ' ^
required information column and each citation column, for easier
confirmation of which row.is checked.
This proposed table outlines the notification requirements
for hazardous debris which will be treated using the
alternative treatment technologies identified in §268.45. The ;. ;
Agency proposes to delete the reference that the date of .
prohibition be listed for each hazardous debris. This requirement
was added during the technical amendments to the Phase IILDR rule.
: Conversations with personnel from the Waste Treatment Branch
confirmed that it was not the Agency's intent to require this
information for hazardous debris. It was inadvertently added to
the debris section. Therefore, CWM supports the Agency's proposal
to delete it as a requirement from the existing §268.7(a)(3).
RESPPQNSE ' '. ' , .
\ ' !
The Agency modified the table to make it easier to read The Agency acknowledges the
commenter's support on the proposed change to the debris requirements.
b. 268.7(a)(3j ' '
.1. Clarify "naturally" meets
This section is intended to address hazardous waste which at -
the initial point of generation "naturally" meet treatment
standards. The Agency proposes to reduce the notification and
certification requirements for generators which have such waste
streams from each shipment to a one-tune notice. CWM supports this
proposal.
CWM recommends that the Agency clarify this requirement to clearly
indicate that this section is applicable to restricted
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hazardous waste which meet the LDR treatment standards as
generated. The proposed language is ambiguous enough that a
generator could misinterpret this section. For example, hazardous
waste solvents (e.g., F004), when generated do not meet BDAT, may
be subsequently mixed with a solid waste. After mixture the ,
resultant waste is physically solid and meets the applicable
treatment standards for F004. A generator could mistakenly .'-.
- misread268.7(a)(3) to mean that they could send a one-time notice . *
to a disposal facility. (This is assuming that the Agency
continues to require a notification with each shipment.)
Therefore, CWM recommends that the Agency add the following
language to this section so that it is clear that the onetime ,
notification is applicable only to nontreated waste: .
"If the waste meets the treatment standards at the original point
of generation;" '
RESPONSE !
. The Agency has considered the language suggested by the commenter in the regulation.
2. Receiving facility applicability
The language proposed in this section only addresses waste,
which"naturally" meets treatment standards and will be sent to
a treatment or storage facility. If a hazardous waste "naturally"
meets BDAT it is highly probable that the waste will be sent
directly to a disposal facility. '-.'-'
CWM recommends that the Agency amend the proposed language so that
it is clear that this requirement is applicable to generators who
send waste which "naturally" meets treatment standards to disposal
facilities also. Amending the language to address a
disposal facility will eliminate any potential confusion for the
regulated community. CWM recommends that thei Agency add the
following language: ,
"If the waste meets the treatment standard: The generator must send
a one-time notice and certification to each treatment, storage, or
disposal facility receiving the waste."
RESPONSE
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The Agency has considered the language suggested by the commenter in the regulation.
3. Definition of one-time notice
The Agency has proposed to reduce the frequency which a generator
must submit a notification and certification for waste which
"naturally" meets applicable treatment standards and is
not prohibited from land disposal from every shipment to a
one-time notice. CWM supports the Agency's proposal to reduce
the frequency of supplying LDR forms. This reduction will .
greatly reduce the unnecessary burden which generators and TSDF's
have in maintaining duplicative records. (See discussion on the
necessity to provide LDR notices in section IV.A.2.a.2. above.)
In addition, CWM recommends the following clarification to
the Agency's approach. The Agency should identify a specific point
in time when a LDR notice must accompany the waste. The
term one-time is ambiguous and does hot reflect whether
shipments received prior to the notice meet BOAT. Therefore,
CWM recommends that the Agency amend the proposed language
to require that the LDR notice and certification accompany the .
initial shipment. By requiring a generator to certify that the
waste meets BDAT with the initial shipment, the generator will
assume some responsibility for determining if subsequent shipments
of the same waste is prohibited. s
Requiring this specific frequency leaves no room for
different interpretations. For example, one-tune many mean that
shipments may be sent for 6 months before a'generator provides a '
certification of meeting treatment While this time frame may be
technically acceptable, CWM does not believe that this is the
Agency's intent Additionally, CWM is very concerned that an
inspector with an agency may pursue enforcement action because they
believe that the LDR notice should have been send earlier in the
example given above. In order to avoid unnecessary resources and
costs associated with determining each stat and Region
interpretation, the Agency should amend the proposed language to
x read:
"If the waste meets the treatment standard: The generator must
send a notice and certification with the initial shipment to each
treatment, storage, or disposal facility receiving the waste."
RESPONSE
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The Agency has considered the language suggested by the commenter in the regulation.
4. Certification required for waste which "naturally" meejs BOAT
The proposed certification for waste which "naturally" meets BOAT
has been changed to incorporate language which addresses waste
which is exempt from treatment standards. Existing regulations do
not require a certification to accompany waste subject to
case-by-case extensions or capacity variances. While the Agency may
view this change as minor it becomes a very significant issue for
commercial hazardous waste management facilities, because .. '
certification changes require changes to LDR forms which are used
by CWM's customers.
This proposed change will result in a financial loss due to
the discarding of thousands of pre-printed forms currently in
stock because they cannot be converted hi a cost effective manner .
to include the new certification. Changing a LDR form results hi
the following: 1) art fees for creating a new master form for
mass copying; 2) purchasing existing LDR forms with the
incorrect certification currently in stock from the printer, 3}
disposal or recycling of the old forms; 4) printing and .
distribution of the new forms with the new certification; and 5)
.Computer system changes must be made to LDR information maintained
in CWM's waste approval system which will print out completed LDR
forms for CWM's customers. While these conditions are favorable for
the printing industry it is very costly for the waste
management company who provides their customers with LDR forms.
CWM does not support the Agency's proposal to change the existing
certification language for wastes which "naturally" meet applicable
treatment standards. The Agency must understand, that changing one
word ma LDR required certification causes CWM thousands of
dollars. The last changes in the LDR certification language in the
Phase II LDR technical correction (60 Fed Reg. at242; January 3,
1995) cost CWM approximately $3,500. This change occurred after
CWM had just received the LDR notifications as a result of the
Phase n final rule changes (59 Fed.Reg. at 47,982; September 9,
1995). These changes cost the commercial hazardous waste
management industry as a whole thousands of dollars hi additional
compliance costs which are not beneficial to public health and the
.environment In fact, if causes the opposite effect on the
environment because natural resources are needlessly utilized.
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RESPONSE . . .
The Agency has reconsidered the certification language as suggested by the corrimenter,
and omitted reference to wastes subject to an exemption.
c. 268.7(a)(4) . , .
1. Definition of one-time notice
This section addresses notification requirements for * j _
hazardous waste that meet certain exemptions which allow the waste
to be land disposed without meeting applicable treatment
standards. CWM support the Agency's proposal to reduce the
frequency of supplying LDR forms from each shipment to a one-time
notice. This reduction will greatly reduce the unnecessary burden
which generators and TSDF's have in maintaining duplicative
records. As noted above, CWM recommends that the Agency identify a
specific point in time when a LDR form must accompany the waste.
The term one-time is ambiguous and leaves a lot of room for ';_.
different interpretations to develop;
Thus, CWM recommends that the Agency amend the proposed language to
require that the LDR form accompany the initial shipment
Requiring this specific frequency places some responsibility on the
generator to correctly identify the status of men- waste under 268
regulations. CWM recommends that the Agency amend the proposed ,
language to read: . . .
"If a generator's waste is so exempt, then the generator must
submit with the initial shipment a notice to each land disposal
facility receiving the waste." . .
A.
RESPONSE
The Agency has considered the language suggested by the commenter in the regulation.
2. New requirement to submit a certification
The Agency's proposed language references the need to submit
a certification. When reviewing the informational
requirements outlined for exempt .waste in the proposed ,
"paperwork requirements table", the Agency has added a requirement
to provide a certification for such waste. CWM is concerned that
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the Agency is imposing new and additional recordkeeping
requirements. Under existing requirements located in § 268.7(a)(3)
there is no requirement to provide a certification of any kind to a
disposal facility when LDR exempt waste is shipped. Adding a , ...
requirement to submit a certification statement for exempt waste,
even one-time, contradicts the Agency's attempt to reduce the '. , '
recordkeeping requirements under the LOR regulations. ,
New LDR forms maintained by CWM for use by generators will also ^
have to be developed to include the new certification language. As
previously discussed above in section IV.A.2.b.4, this proposal, if
promulgated, will result in the discarding of thousands of
, forms currently in stock because they cannot be converted in a
cost effective manner to include the new certification. CWM
, strongly urges the Agency to evaluate the necessity in requiring a
new certification. Changing one word in an LDR required
certification costs commercial hazardous waste management
,. companies thousands of dollars in additional compliance costs which
are not beneficial to public health and the environment. In fact,
it causes me opposite effect on me environment because natural
resources are needlessly utilized.
Therefore, CWM requests that the Agency delete the checkmark from
the proposed paperwork requirements table which identifies that a . , .
certification must be submitted with waste subject to an exemption
identified under § 268.7(a)(4). Keeping this requirement in the
final rule will undermine the Agency's attempt to streamline the
LDR process. ( ^ . " ,
RESPONSE ;'
. . "'
The Agency has reconsidered the certification language as suggested by the commenter,
and omitted language indicating a certification is necessary for wastes subject to an exemption.
d. 268.7(aX5)
1. Submittal of mini-WAPs
This section details the requirement for a generator who treats ,
a restricted waste to meet BOAT in a 90-day accumulation
tank, container, or containment building. Existing requirements
include the submittal of a waste analysis plan (WAP), to the EPA,
30 days prior to conducting treatment. The Agency proposes to
delete the requirement for submittal of the WAP, and only require
-------
its availability on-site. ;
CWM supports the Agency's proposal to delete the requirement . ,
to submit a "90-day generator mini-WAP" to the EPA. This will avoid
the unnecessary administrative delays currently associated with the
requirement for the Agency to review the contents of the mini-WAP.
Even though an approval is hot required under federal regulations,
CWM believes that some Agencies have an internal policy that when a
document is required to be submitted, it must be reviewed. These
. types of policies have discouraged generators from treating their
waste on-site. The removal of a requirement to submit such a
document provides a simple, self-implementing standard that will
, help promote innovative treatment technologies. '
RESPONSE '
The Agency acknowledges the commenter's support on the proposed change to the 90-
day generator WAP requirements. -
2. Information required for generator treated waste
The proposed section (Hi) of § 268.7(a)(5) notes that site
generated waste treated in 90-day accumulation units, when shipped
off-site, must comply with § 268.7(a)(4). Section §268. 7(a)(4) is.
applicable to hazardous waste which is exempt from meeting
treatment standards. This section requires that a generator submit
a certification that the waste meets applicable treatment standards
at the point of generation. The date die waste is subject to
a prohibition is also required to be identified on the LDR notice.
The identification of a prohibited date is not currently required
for generators who treat on-site in 90 day units.
CWM believes that it would be more appropriate to reference
the proposed §268.7(b)(4)(i) which outlines treatment
facility requirements. Since the generator is treating the waste to
meet applicable treatment standards under the LDR program, it does
not make sense to use a certification which has been developed for
use with exempted wastes.
In addition to the certification issue, CWM believes that the ",
Agency should clarify whether a generator, not a commercial
treater, who performs partial treatment on a restricted waste is
required to use any certification or should a certification be used
only when all applicable treatment standards have been met. A ;
. review of existing and proposed LDR notification regulations does
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not identify a clear direction on whether the generator is required
to notify under such circumstances. Provided below are two examples
which illustrate the point: , .
Example number 1 involves a company which generates
an electroplating sludge (i.e., F006) which requires treatment for
both cyanides and metals. The generator treats the cyanide present
in the waste in a 90-day accumulation tank. However, the metals
still require treatment and must be sent off-site. Is the
generator required to submit a certification that the waste meets a
treatment standard? A re view of the existing and proposed
regulations does not clearly identify how a generator should
address such a situation. CWM believes that the most appropriate
requirement is to list F006twice on the LDR notice. After one
F006 listing, the generator indicates that the waste requires
treatment. After the other F0061isting the generator would supply
the certification required by a treatment facility located in >
existing § 268.7(b)(5)(I).
Example number 2, involves a generator with a hazardous waste which
exhibits the characteristic of corrosivity and lead (i.e., D002 and
D008). The generator neutralizes the waste for corrosivity in
a 90-day accumulation container, which is not subject to
CWA discharges, and does not treat the lead compound present to
meet BOAT. A review of existing and proposed LDR
notification regulations does not identify a clear direction on how
the generator is required to notify under such circumstances. CWM
believes that the generator in this example should submit with its
initial shipment to an off-site treatment or storage facility, the
certification required by treatment facilities in § 268.7(b)(5)(iv)
of the existing LDR regulations which covers characteristic wastes
treated to remove the characteristic, but which contains UHCs that
still require treatment Although this certification does not
exactly correspond with the example provided it appears to be the
most appropriate of the existing certifications.
In an effort to assist the Agency in its objective of
providing streamlined regulations, CWM recommends that the Agency
amend the proposed language in §268.7(a)(5Xiii) to read:
"Wastes snipped off-site pursuant to this paragraph must comply
with the notification certification requirements of §268.7(b)(5)(I)
if all applicable treatment standards have been met, or the
certification requirements of §268.7(b)(5)(iv) if UHCs require
treatment in decharacterized waste."
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RESPONSE '":: . ' . ,
The commenter's suggestion that the certification used for treatment facilities is more
applicable to generators treating in 90-day tanks than the one that has been required (for
generators) for several years is beyond the scope of this rulemaking. It will, however, be further
considered by the Agency in future rulemakings. The Agency prefers not to address specific
examples of the applicability of the regulations (as submitted by the commenter) in this Response
to Comments Document. 'Rather, if these examples are raised in a letter to the Agency,
interpretations of the regulations will be made.
e. §268.7(aX8) '. -, ' > ..
The Agency has proposed to reduce the record retention period for ,
LDR notices from 5 years to 3 years. CWM supports the Agency's
proposal to require LDR information to be retained orisite for 3
years from the date such information was generated. This will
simplify LDR record retention requirements by making them '
consistent with other hazardous waste record retention
requirements. , -
RESPONSE
The Agency acknowledges the commenter's support on the proposed change to the record
retention requirements. .
f, §268.7(a)(9)
1. Notification requirements for lab packs
This section outlines the requirements for. lab packs which
are eligible to use the alternative treatment standard of
incineration. In sum, the Agency proposes that there is no need to
identify whether a lab pack contains hazardous debris or wastes
which are wastewaters/nonwastewaters (WW/NWW), because the
alternative treatment standard is a specified technology. See 60
Fed. Reg. ai43,678. CWM agrees with the Agency's proposal and the
need to. delete the requirement to provide this information.
However, the proposed language in § 268.7(a)(9) notes that
with each shipment the generator must comply with paragraph '
(a)(2).One of the requirements in this paragraph is the need to
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identify applicable WW/NWW categories. The Agency must correct
this error or the Agency's intent to reduce useless information
will not be implemented. CWM recommends that the Agency amend
The proposed language in § 268.7(a)(9).
Further, CWM recommends that the Agency delete the
general requirement under § 268.7(a)(9) to identify the
applicable subcategory would be the same as why it is appropriate
to delete the WW/NWW category. Restricted waste placed into a lab
pack which are eligible for the specified technology or
incineration (INCIN) do not have numerical standards to meet. "-'
Therefore, there is no need to identify what subcategory the waste :
meets. It is also important to note that streams are not
prohibited from placement into a non-Appendix lab pack by
subcategory. Again, the need to identify a subcategory is needless
when the treatment standard is a specified technology. ,
In summary, CWM recommends that the Agency amend The proposed ' '
language in § 268.7(a)(9) to read as follows: .
' "If a generator fc managing a lab pack waste... the generator must '
: submit a notice to the treatment facility in accordance with
paragraph (a)(2) of this section, except forThe identification of
wastewater/nonwastewater categories and waste specific
subcategories (such as D003 reactive cyanide)."
RESPONSE
, The Paperwork Requirements Table 1 has been changed to include a column for lab
packs. It should be noted that there are no requirements to identify the waste constituents or
subcategories for the hazardous wastes placed in a lab pack.
2. .Lab pack certification , ' - ; .
This section requires that a generator use a specific
certification when a lab pack will be managed using the alternative
treatment standard of incineration (INCIN). The language for the
certification has changed several times during the last year. A
review of The proposed language reveals that the Agency has once
again changed the certification language. The proposed language is
the same language which was promulgated on September 19,1994 under
the Phase 11 LDR rule. See 59 Fed. Reg. at 48,045. On January
3,1995 the Agency published technical amendments to the Phase
11LDR rule and changed the certification language for lab packs.
See60Fed.Reg.at245. ,
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CWM does not believe that there is any positive .,
1 environmental benefit related to these changes. As noted in earlier ,
comments, insignificant changes to the wording of a certification
cause the commercial hazardous waste industry significant costs to
create new LDR forms and buy back and recycle existing inventory. v
In addition, the confusion which is created in the regulated
community is .unnecessary. Therefore, CWM strongly urges the Agency
to amend the proposed lab pack information so that it is identical
tothe January 3,1995 technical amendment version. To do
otherwise will unnecessarily heap huge amounts of paperwork burden
and cost oh the regulated community. ' . . ,
RESPONSE ,
The Agency is finalizing the certification language as proposed. The primary difference
in language advocated by the commenter and the language that is being finalized is that the final
language includes a statement that the lab pack is being sent to a combustion facility for
treatment Other commenters requested this language be added to the certification, convincing
the Agency that it is important to certify that the treatment method required by the lab pack
alternative treatment standard is being carried out.
9. §268.7(b) ,.'_
1. California List Applicability ' ! .
The LDR notification and certification requirements for / . '._
facilities treating hazardous waste, in accordance with standards
established under 268, are outlined in this section. The most .
. significant proposed amendment identified is the removal of the ,
contents of existing §268.7(b)(2) which reference the California
list wastes. As CWM commented in section IV.A.2.a.l. above, the
Agency must first determine whether any hazardous wastes continue -
to compel application of the California List statutory label. If
the Agency determination is legally binding it can delete all .
references to California List waste. CWM would support the
: conclusion. x . .
RESPONSE "... .- -' - - '''!..-,'
The Agency believe that all the treatment standards for California List wastes have been
superseded by more specific standards (55 FR at 22675; 52 FR at 29993). The Agency believes
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' " * " " '
that the treatment standards for listed hazardous wastes are the most specific. Next would be the
characteristic waste treatment standards with their associated treatment standards for underlying
hazardous consitutents (UHCs). i
The Agency stated in the In 1990, the Agency stated its belief that all standards had been
superseded at that time with the exceptions of (1) liquid hazardous wastes that contain over 50
ppm PCBs; (2) HOC-containing wastes identified as hazardous by a characteristic propertly that .
does not involve HOCs, as for example, an ignitable waste that also contains greater than
lOOOppm HOCs; and (3) liquid hazardous wastes that exhibit a characteristic and also contain
over 134 mg/1 nickel and 130. mg/1 of thallium. These three exceptions have now become subject
to more specific standards as explained below. All of the wastes in these examples are subject to
the LDR requirement that all UHCs reasonably expected to be present in a characteristic
hazardous waste at the point of generation must be treated to meet Universal treatment "
Standards (UTS) (and, of course, the hazardous characteristic would also have to be treated prior
to land disposal).
What is eliminated under this approach, however, is the requirement in some cases to
incinerate the waste rather than treat in any way other than impermissible dilution to meet UTS
levels. The Agency does not view this as in any way making the regulations less stringent The
Agency sets methods of treatment when the residues cannot be analyzed to see if they meet UTS,
or when the technology is clearly far superior to other types of treatment for a particular waste. ,
Neither of these conditions exist for the examples provided by the commenter. In the case of
PCBs, they must meet UTS and then be disposed in a TSCA-approved landfill. The Agency ,
believes that regulations under two statutes is as protective as required incineration of the PCBs.
While the Agency once believed that it was necessary to require incineration of high-HOC
wastes, it is possible that they can be adequately treated- i.e.treated in a way that destroys or
removes these constituents from the waste before disposal by other technologies to meet the
UTS concentration levels. Therefore the California List treatment standards are superseded and
are no longer hi effect hi the RCRA program.
2. Characteristic waste with UHCs
The Agency has proposed to require the identification and treatment
of applicable UHCs for D004-D011 characteristic wastes. CWM
provides comments regarding its disagreement with requiring UHC
treatment standards for characteristic metal wastes later in this
document If the Agency finalizes this approach, CWM recommends
that the Agency amend existing §268.7(b)(5)(iv) to reference
D003-DO11. This section requires a specific certification to be
filed when the. characteristic has been removed but UHCs
still require treatment. The addition of these waste codes will '
clarify what LDR notification and certification requirements are
expected for characteristic waste. , . '. '
CWM recommends that the Agency amend the existing language in§
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268 J(b)(5)(iv) to read as follows:
"For applicable characteristic wastes D001-D043 that are:
The word "applicable" should be added because not . , -
all characteristic hazardous waste is subject to treatment
standards for UHCs. For example, D002 waste which is managed in a ,
; CWA regulated unit is not subject to UHC identification. This :
wording would help clarify which characteristic waste is subject to .
this section. ,
RESPONSE , . '.'-.' . ,
The Agency is not finalizing treatment standardsincluding requirements to treat UHCs
for toxic characteristic (TC) metal wastes in this final rule. The commenter's suggestion will be
considered in the context of the Phase IV final rule that will be promulgated in April of 1998,
when treatment standards for TC metal wastes will be finalized.
h. §268. 7(b)(4)(iii)
This section outlines the requirements for a treatment facility
which treats organic wastes and uses the analytical detection limit
; as an alternative means of verifying compliance without
analytical problematic constituents. The proposed language
references§268.43(c) which was deleted and moved as a result of
the Phase IILDR final rule. See 59 Fed. Reg. at 48,046. The
alternative means is now located under §268.40(d). la an effort to
assist the Agency in their review of deleting and replacing
, obsolete citations, CWM recommends that the Agency add the citation
§268.40(d). in place of the obsolete citation of §268.43 (c)". This
will ensure consistency and eliminate confusion from the regulated
community. ' '
RESPONSE
\ j .
The commenter's suggestion has been incorporated into the final rule.
i. §268.7(c)(l) ' ;
This section outlines the requirements for the disposal of
recyclable material used in a manner constituting disposal. The
existing regulation references that such facilities must comply
with the generator standards (paragraph a) or treatment
standards (paragraph b) of §268 which are applicable. The proposed
section eliminates the reference for complying with treatment
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standards (paragraph b). CWM does not fully understand why this
reference has been omitted and the Agency does hot explain why it
is appropriate to delete such a requirement Therefore, CWM
believes that it was an inadvertent omission and recommends that
the Agency add this reference to the final section.
RESPONSE.
The commenter's suggestion has been incorporated into the final rule.
3. Section 268.9 - Special rules regarding wastes that exhibit a
characteristic.(60 Fed. Reg. at 43,678)
a. The Agency proposes to amend 268.9(a) and (b) to clarify '
how wastes should be identified when they are both listed and
exhibit a hazardous characteristic. Existing regulations require
that for the LDR notification a waste must be identified as a
listed waste and also as a characteristic waste, unless the listed
waste has a has a treatment standard for the constituent or
addresses the hazardous characteristic that causes the waste to
also be characteristically hazardous. If the listed waste has .
treatment standards that address all characteristics, then the
characteristic waste codes do not apply.
CWM generally supports this clarifying change to 268.9(a) &
(b);however, because the Agency did not print the proposed changes
to paragraph (b) (See 60 Fed. Reg. 43,694) CWM cannot comment on,the
specific change. Therefore, CWM recommends that the language in '
paragraph (b) stay the same. CWM recommends this because CWM
believes that the language in paragraph (b)adequately conveys the
requirements.
In addition, CWM believes that the Agency should provide
three clear examples of the clarification in the final rule
preamble discussion. Examples are the best means of providing
guidance. ' CWM has three examples it recommends the Agency use.
Example #1 involves the waste code K061 which contains lead at
greater than 5.0 ppm determined by TCLP. Since K061 has a
treatment standard for lead, the D008 characteristic for lead would -
not apply. ,
Example #2 involves a waste stream that has specified
technology, for its treatment standard. For example, U042
(2-Chloroethyl vinylether) has a specified technology of INCIN,
and exhibits the characteristic of Ignitibiiity (D001) because it
has a flash point of 8°F. Because the specified technology of
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INCIN is listed in 268Appendix VI as a technology available for
Deactivating (DEACT) a characteristic waste, GWM believes that the
proper assignment of a waste code would be UO42. There is no need
to add D001. As the Agency can see, this example is not as
obvious as the first. ' -,
Example #3 involves the applicability of D001 to a F003,
FOOSsolvent waste that exhibits the characteristic of '
ignitability. The Agency stated in a September 28,1994, letter to
Ms. Susan Prior, Laidlaw Environmental Services; that for land
disposal restriction purposes that for F003, F005 solvent wastes
that exhibit the characteristic of ignitability that the waste ,
should also be identified as D001 (See Attachment 1). CWM agrees
with this position, however, because this guidance was issued in a
letter CWM requests that the Agency include this example in the
preamble discussion, CWM urges the Agency to provide these
three examples in the final rule preamble discussion because many
in the generating community still do not understand these
principles.
RESPONSE
The commenter's suggestion has been incorporated into the final rule.
b. The amendment to paragraph (d)(l)(ii) is to clarify that if ,
all underlying hazardous constituents, reasonably expected to
be present in a characteristic waste, are monitored by the
treatment facility then the generator is not required to list any.
of the UHCs on the LDR notification. If, however, a subset (e.gi
230 of 240 UHCs) will be monitored then all constituents must be .
included on the LDR notification. . . ,
CWM believes that this requirement should be modified to
include less notifications when a subset group of UHCs cannot be
accepted at a treatment facility. CWM continues to believe that
this requirement provides no meaningful environmental benefit
For example, an incinerator may not be permitted to accept a subset
of codes or constituents (e.g., dioxin and ruran wastes) for
thermal destruction. As a result of this permit requirement each
generator is asked during the preacceptance process whether the
waste stream contains dioxins and furans. If the waste stream
contains these compounds the waste stream is not accepted for
processing. The facility evaluates its treatment residues for all
' other 268.48constituents after treatment. Because the facility
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does not monitor for six dioxin and furan compounds each generator
is required to send in additional documentation identifying all
UHCs present in the waste stream. CWM believes that is
unreasonable when The facility already knows that the six dioxin
and furah compounds are not present in the waste through the
approval process. The facility should be able to accept these
waste streams without the additional burden imposed to require
additional UHC documentation that provides no additional
environmental benefit. CWM urges the Agency to reevaluate this
. issue especially in the case of permit restrictions. .' \ .
RESPONSE
EPA continues to look for ways to further reduce paperwork burden; however, in order to
ensure that the Agency's ability to protect human health and the environment is not compromised
by these changes, we are only implementing those changes that have been thoroughly analyzed
and which have been previously proposed. As stated previously, the Agency will continue to
implement changes to the paperwork requirements where practicable and your suggested changes
will be evaluated during this process . <
4. Section 268.30 - 268.37 (Fed. Reg. at 43,678)
The Agency is proposing to remove 268.31 through 268.37because the
treatment standards for wastes in these sections are now if effect,
and all of these wastes are now prohibited from land disposal.
Thus, the sections are no longer necessary. In addition, the
Agency is proposing to replace old'268.30 with a new section that
provides the prohibition dates of the wastes included in
this proposal.
CWM does not support the Agency's proposal to remove
these sections. CWM believes that these sections provide
useful historical information, and that the removal of these
sections will give the appearance that the wastes are no longer
prohibited. Therefore. CWM urges the Agency to maintain these
sections. .
As an alternative CWM recommends that the Agency remove Subpart B
. to 268 which contains the schedule for land disposal restrictions.
CWM believes that removing 268.10,268.11, and268.12 will result
in a clearer, simpler revision.
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RESPONSE ,
The Agency has updated Appendix VII and Appendix VIII to Part 268 to include the
effective dates of treatment standards for all prohibited hazardous wastes, therefore the
prohibition language for the earlier LDR rulemakings is no longer necessary. The sections have
been superseded or have be deleted as proposed. EPA disagrees with the commenter's drafting
suggestion since the California List wastes are all prohibited, just under other provisions. Since
the California List was meant as a stop-gap until these later prohibitions took effect (as noted by
EPA in a number of places such as the Third Third rule preamble), eliminating the California List
prohibition now that the other rules have been promulgated makes sense. Furthermore, sections
268.10,1268.11, and 268.12 were removed in a previous rulemaking. N .
5. Part 268 Appendix I - TCLP
The Agency is proposing to remove Appendix I, because the TCLP test
method reference to SW-846 will be incorporated into the text of
the regulatory language. / . ,
CWM supports this proposed change. .
RESPONSE ; % ,
i ' ' ' X, ' . * ,
The Agency acknowledges the commenter's support for this change in the regulations.
-".-' ' '. , '
6. Part 268 Appendix II - Treatment Standards (As Concentrations
; in the Treatment Residual Extract .
The Agency is proposing to remove Appendix II to Part 268because
it incorrectly refers to treatment standards in 268.41,268.42, and :
268.43, and there is no longer a need to reference the solvent
treatment standards .
\ , CWM supports this proposed text removal.
RESPONSE ,
The Agency acknowledges the commenter's support for this change in the regulations .
7..- Part 268 Appendix 11 - List of Halogenated Organic
Compounds Regulated Under 268.32.
.The Agency is proposing to remove Appendix 111 which contains
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alist of halogenated organic compounds regulated under
268.32because the California List treatment standards have
been superseded by Universal Treatment Standards, thus there is '
no longer a need for a listing of halogenated organic .
compounds because they are California List wastes.
CWM disagrees with the Agency's statement that all California . . ;
List treatment standards have been superseded by the y .
Universal Treatment Standards, and that there is no longer a need .
for a listing of halogenated organic compounds. CWM believes that , ' ^
the California List requirements are still in effect. (See the,
previous discussion regarding 268.7(a)(2) on page 5 of these
comments ).For example, if a K061 contains any;.of the halogenated'
organic compounds listed in appendix 111, that are not
characteristically hazardous, in a quantity greater than 1000 mg/kg
then pursuant to268.42(a)(2) the waste must be incinerated in
accordance with the requirements of 40 CFR part 264.Subpart O or .
265 Subpart O. Because California List HOCs can stillvrequire a ;"
waste stream to be incinerated under California List CWM believes
thatthe Agency must maintain the list of California List HOCs in
Appendix III to part 268. As stated in earlier comments CWM would
support to Agency's final determination if the .Agency determines
that statutorily California List requirements are no longer in
effect. If the Agency makes this determination it must ensure that
clear guidance is provided to the regulated community.
RESPONSE
The, Agency believes that all the treatment standards for California List wastes have been
superseded by more specific standards (55 FR at 22675; 52 FR at 29993). Therefore, Appendix
II has been removed from Part 268. ' '
8. Part 268 Appendix VI - Recommended Technologies to
Achieve Deactivation of Characteristics in Section 268.42
The Agency is proposing to amend Appendix VI to clarify
that characteristic wastes that also contain UHCs must be treated
not only by a "deactivating" technology to remove the
characteristics, but also treated to achieve the UTS for UHCs.
CWM supports this language clarification.
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RESPONSE
The Agency acknowledges the cpmmenter's support for this change in the regulations.
9. Part 268 Appendix VII - Effective Dates of Surface
Disposed Wastes Regulated in the LDRs
. The Agency is proposing to remove Appendix VII because all of the
wastes listed in the table have treatment standards now in
effect, thus there is no need to know the effective dates.
CWM supports this proposed change.
" i * .. - . ' . " , /
RESPONSE
Other commenters requested that this Appendix be retained, especially because Subpart C
is being revised to accomodate the newly listed and identified wastes for which treatment
standards are being promulgated in recent rulemakings. Therefore, the Agency has updated
Appendix VII to Part 268 to include the effective dates of treatment standards for all prohibited
hazardous wastes ' - . .
10. Part268 Appendix VIII-National Capacity Variances for . .
UIC Wastes /
- The Agency .is proposing to remove Appendix VIII because
the effective dates for these wastes when deep well injected are
past and are no longer needed. ,
C WM believes that the current list of wastes in Appendix VIII
can be removed; however, because the Agency is proposing .
national capacity variances for deep well injected Phase IV wastes
the Appendix should be maintained. The appendix should then list
the Phase IV wastes subject to a UIC capacity variance. , -
RESPONSE
Other commenters requested that this Appendix be retained, especially because Subpart C
is being revised to accomodate the newly listed and identified wastes for which treatment.
standards are being promulgated in recent rulemakings. Therefore, the Agency has updated
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Appendix VIII to Part 268 to include the effective dates of treatment standards for all prohibited
hazardous wastes being deepwell injected. .
11. Part 268 Appendix IX - Extraction Procedure (EP) Toxicity
'The Agency is proposing to remove Appendix IX because as of
this proposed rule all characteristic metal treatment standards are
based on toxicity using the TCLP rather than the Extraction
Procedure (EP).
CWM supports this proposed change. :
RESPONSE . /'.' .
The Agency acknowledges the commenter's support for this change in the regulations.
12. Part 268 Appendix X - Recordkeeping, Notification,
and/or Certification Requirements.
The Agency is proposing to remove Appendix X because it summarizes
paperwork requirements that are proposed to be changed in the Phase
III proposal and this proposal.
CWM believes that the Agency's proposed tables in 268.7(a) and(b)
that discuss the regulatory requirements would allow for
the removal of Appendix X if the tables are finalized as CWM
has previously commented under IV.A.2.a.4 on page 11 of
these comments. / ' .
RESPONSE
The Agency acknowledges the commenter's support for this change in the regulations.
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DCN - PH4P052
COMMENTER Pacific Gas & Electric
RESPONDER PV
SUBJECT CLNP , , .
SUBJNUM 052 ,
COMMENT '!.'-"
Pacific Gas and Electric Company (PG&E) supports the
simplification of the Land Disposal Restriction (LDR) notification .
requirements. PG&E appreciates the opportunity for comment on EPA's
LDR Phase IV Proposal (60 Fed. Reg. 43654 (August 22,1995). The
proposed administrative changes to the LDR'requirements would .
eliminate several unnecessary regulatory burdens while facilitating
compliance with the LDR regulations. In particular, PG&E supports
the following proposed changes: , '
Modification of the regulations to require that a generator whose
waste meets the appropriate treatment standard need only supply a
one-time notification and certification to the disposal facility, :
unless the waste composition changes. 60 Fed. Reg. at 43678.
Elimination of the requirement that a facility treating waste in a s '
90-day accumulation unit to meet treatment standards must first
submit a waste analysis plan ("WAP") to EPA or an authorized state
for approval. Id. ,
Reducing the LDR record retention time from five years to three
years. Id.
These proposed modifications will greatly assist in streamlining
the LDR requirements. In addition, EPA proposes to allow small
quantity generators with contractual agreements in place for the "-"
reclamation of their waste, to be subject to reduced certification
and notification requirements, provided that the agreements comply
with 40 C.F.R. § 262.20(e). Id..at 43693(proposed 40 C.F.R. §
268.7(a)(10)). PG&E believes that this reduced set of requirements
should be equally applicable in situations where large quantity «
generators have tolling agreements in effect, and therefore, should
be extended to cover such arrangements. Extending the scope of
this reduced set of requirements will have the desirable benefit of
encouraging agreements for hazardous waste reclamation by reducing
the administrative burdens currently associated with ; \ '
such transactions.
1 i *
RESPONSE , ;
'
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. In reference to the commenters suggestion regarding LQGs, the LDR provision
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pertaining to small quantity generators with tolling agreeements was designed to capture the
same universe as those captured by § 262.20(e), generators of more than 100 but less than 1000
kg of hazardous waste per year, thus it is not appropriate to extend the provisions of §
268.7(a)(10) to large quantity generators. The Agency has provided relief to large quantity
generators, however, by changing the requirement to provide LDR notices and certifications with
each shipment of hazardous waste to a one-time notice and certification, provided the waste does
not change and the receiving facility does not change.
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DCN PH4P056 ,, ~ . , .
COMMENTER Westinghouse * , ,,
RESPONDER PV
SUBJECT CLNP , -
SUBJNUM. 056 . , -. :
COMMENT
Issue 2: Improvements to Land Disposal Restrictions
Program Reference: Preamble at Section III.A.3., regarding Section
. 268.7,page 43678 '-^ :
Comment #1 EPA requested comments on deleting the requirement that
generators submit waste analysis plans in §268.7(a)(5) to the
states and the regions. We support deleting the requirement
because it does not provide additional protection of human health
or the environment. Regulators will still
be able to inspect the site and obtain copies of generator related
documentation. The proposed, change will make generator waste .
analysis plan requirements consistent with requirements associated .
with contingency, training, or inspection plans, none of which \
have to be submitted for review. . :
Comment #2 . .
The EPA solicited comment on whether labpack information .
requirements should be reduced. Westinghouse supports EPA's .
initiative to eliminate unnecessary paperwork requirements for
labpacks. .. . ;
RESPONSE ' /
"' The Agency thanks you for your interest in and support of ^he paperwork burden
reduction effort. EPA. appreciates your comments on the elimination of unnecessary
paperwork requirements for labpacks and has decided to promulgate the proposed change to a
one-time notice and certification for labpacks that contain the same hazardous waste each time
that are shipped to the same treatment facility in the final rule.
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DCN PH4P056
COMMENTER Westinghouse , .
RESPONDER PV
SUBJECT CLNP ,
SUBJNUM 056 ' , f
COMMENT . .
Issue 6: Regulatory Language Found in Section 268.1 Reference:
Regulatory test at page 43691
In order to prevent the imposition of LDR on the beneficial reuse
of biosolids by land application, an additional exemption should be
added to Section 268.1 stating: "Sludges regulated under 40 CFR
503 are exempt from Part 268."
RESPONSE '' ' .
The commenter's suggestion is beyond the scope of this final rule, therefore, no change.
has been made.
Issue 7: Recordkeeping Requirements Reference: Regulatory text at
page 43691-43692
Section 268.7 describes frequencies for notifications and ,
certifications (one-time or with each shipment). .Westinghouse
recommends that EPA add clarification to these frequencies
to account for situations where all phases of management are under
a single EPA/state identification number. For example, if a waste
movement is defined as an off-site shipment because it is
being shipped on a public right-of-way, but is being sent to a TSD
unit which operates under the same EPA/state ID number as the
generator and the transporter on contiguous property, did
EPA intend, for the notification and certification requirements
pertaining to that shipment to be as if the shipment was being made
to another entity with a separate EPA/state ID number? In this
cause, me same permittee may be the generator, transporter,,
treater, and disposer of the waste but the waste was moved on a
road that may classify the movement as an off-site shipment.
Westinghouse manages several DOE sites which store significant
quantities of mixed waste in accordance with the Federal Facility
Compliance Act. When the waste is treated and disposed, will the
sites be subject to the certification and notification
requirements that describe the frequency of "each shipment" even
though the waste is completely managed on-site? This information
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, was intended for off-site shipments and did not consider how long
mixed wastes would have to be stored until sufficient treatment and .
disposal technologies are available. What certification frequency
is appropriate for several thousand waste drums which are removed .-
from storage and treated oh a batch basis? Should the
owner/operator look at compliance with the certification
requirements on a per-batch basis as waste is removed from ^
storage, or can the owner/operator look at the waste stream as a
whole to eliminate unnecessary paperwork? Furthermore, does each
treated drum require sampling to determine whether
a concentration-based treatment standard is met,, or can compliance ~
with the treatment standard be based on a per-batch basis? -' . '. ._
RESPONSE , V
The Agency prefers not to address specific examples of the applicability of the
regulations (as submitted by the commenter) in this Response to Comments Document Rather,
if these examples are raised in a letter to the Agency, interpretations of the regulations will be
made. EPA believes as a general matter that responding to questions such as these without a
specific factual context can lead to confusion or error, and consequently declines to do so here.
. Issue 8: Regulatory Language Found in Section
268.7(a)(3)Reference: Regulatory text at page 43692
Throughout the proposed text of 40 CFR 268.7, reference is made to
,40 CFR 261.3(e). The correct reference should be 261.3(f)-
RESPONSE , ' x ': . .
\
The Agency has corrected this error in the final rule.
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DCN PH4P064
COMMENTER Dow Chemical
RESPONDER PV ;
SUBJECT CLNP ;
SUBJNUM 064 .
COMMENT \ .
Dow supports the proposed improvements to the Land Disposal
Restrictions program. We appreciate EPA's efforts to clean-up and
clarify outdated, confusing, or unnecessary language.
In particular, we approve of the changes proposed for 268.7 that
eliminates redundance or removes obsolete material and simplifies
the requirements for generators. A one-time notification,
and certification to the receiving facility for those wastes that
meet the appropriate treatment standard, is a definite improvement -
over the current system. The decision to change the record
retention time period in 268.7(a)(8) from five years to three years . '
. is a significant improvement that will minimize confusion over
recordkeeping and will be consistent with .the manifesting ,
recordkeeping reqiurements.
Dow supports the change found in 268.9 that states that if all
underlying hazardous constituents reasonably expected to be present
in a characteristic waste will be monitored, then the
generator need not list any of them on the LDR notification.
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort.
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DCN PH4P074 . , .
COMMENTER DOD
RESPONDER PV
SUBJECT CLNP
SUBJNUM 074, .. \ '. ' .
COMMENT . .
, DoD is highly, supportive of EPA efforts" to simplify LDR . .
requirements. While the suggestions made in this section of the
proposed rule are minor simplifications, DoD does support this
step in the right direction. DoD agrees that the proposed changes .-
in this section make the reading of the LDR regulations more ,
straightforward. Additionally, the streamlined notification and .
reduction to a three-year records retention period is very helpful
. for a large organization such as DoD. DoD does want to mention the . .
''_ following points:
i a. Proposed 40 CFR 268.7(a)(4) now contains a certification
requirement which was not present in the previous corresponding
section of 268.7 (a)(3). The proposed rule discusses a -
streamlining measure for this section, but fails to explicitly
mention that a certification requirement is being added. 60 Federal
Register at 43678. DoD requests EPA to specifically request
comment on whether a certification requirement should be added. DoD
does support the one-time notification streamlining concept
proposed.
' ) ''
RESPONSE '." .,-'."' c . '.- , ' . ' .- . ;
The Agency did not intend to add a certification requirement at 40 CFR 268.7(a)(4), and
any indication that a certification is required has been removed from the regulatory language in
the final rule. The Agency acknowledges the commenter's support of the one-time notification -
concept. .,
' b. Proposed 40 CFR 268.5 (Hi) refers to proposed 268.7(a)(4). Did
EPA mean instead to refer to proposed 268.7(a)(3), as this section
would correspond to the previous edition of the regulation? If EPA
is changing the reference in proposed 268.5(iii), DoD requests EPA
to explain why this changed reference is suggested and allow for
, public comment on this issue after EPA's explanation. .
RESPONSE
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The commenter has found an inadvertant error in the proposed rule, however, the
proposed language at 40 CFR 268.5 has been removed because the Agency is not finalizing that
provision in this final rule. There is, therefore, no cross reference to 268.7 in today's rule.
c. In proposed 268.7(a)(9), the certification language omits the
previously used phrase," ...or solid wastes not subject to
regulation under 40 CFR part 26l."DoD requests EPA to explain >
why this change in certification language is requested and to allow
for public comment after EPA's explanation. This certification
should be amended to include the phrase, "...based on knowledge and , .
belief," at the beginning of the certification.
RESPONSE
The Agency does not believe that the language suggested by the commenter is
appropriate, and is therefore not incorporating it into the final rule. The commenter asks why the
certification omits the phrase, " ...or solid wastes not subject to regulation under 40 CFR part
261." This change was made in the technical amendments to the Phase II final rule. The
explanation given at that time was: "The certification language that reads lor-solid wastes not
subject to regulation under 40 CFR part 26T is being removed and is no longer considered
necessary, because the regulated community has in appendix IV a list of wastes that are
prohibited from placement in a lab pack. The Agency believes that deleting this statement is not
a substantive change, but rather alleviates unnecessary language."
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DCN PH4P075 . , , '
COMMENTER Elf Atochem ^
RESPONDER PV
SUBJECT CLNP
SUBJNUM 075 ' ,
COMMENT ' ''
Elf Atochem believes that both the current and proposed LDR
notification requirements are far more burdensome than necessary to
ensure compliance with.substantive LDR requirements. Specifically,
Elf Atochem believes that both the existing and proposed LDR
notification provisions impose substantial information tracking
requirements that serve no useful purpose. . '. '
EPA has already taken steps to reduce unnecessary LDR paperwork
burdens by limiting the requirement that LDR paperwork track
. individual underlying hazardous constituents. EPA SHOULD now
provide additional relief by eliminating the requirement to track .
- waste codes and treatability groups for characteristic wastes that
have been "decharacterized" but that remain subject to UTS
treatment requirements. In lieu of the need to track waste codes
and treatability groups related to nonhazardous wastes or residues,
it should be sufficient to track only the fact that UTS treatment
. standards apply. This seemingly modest amount of streamlining
would provide enormous regulatory relief in some situations,
without compromising the Agency's ability to ensure compliance with
substantive LDR requirements.
The need for such relief is graphically illustrated in the case of
residues from carbon regeneration. Briefly, Elf Atochem . .
manufactures and supplies activated carbon for use in a variety of
waste treatment and manufacturing process applications. As an
' additional part of this business, Elf Atochem accepts spent
activated carbon generated by its customers, regenerates the .
carbon in a rotary kiln, and sells the regenerated activated carbon
for reuse. Because the regeneration of spent activated carbon
produces residual materials (ash and baghouse dust) that are
ultimately disposed of in a landfill, LDR requirements may be
triggered. ,
the difficulty Elf Atochem faces is that the specific LDR
f treatment requirements that apply to residues from the regeneration
of spent activated carbon appear to include any LDR
requirements that may have attached at the point of generation to
any characteristic ancestor waste that is traceable to the residue
in question. The problem is aggravated by the fact that activated
carbon is often used to. treat commingled wastes, and that spent
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carbon from a wide variety of sources is then commingled for
regeneration. Consequently, in order to identify the specific
constituents for which treatment is required, it appears that it
may be necessary to identify all of the sources of the spent carbon
from which regeneration residues are derived, to identify all of
the wastes treated with each of those individual sources of spent
activated carbon, to identify all of these wastes (and all of their
ancestors) that exhibited hazardous characteristics at their point
of generation, and to identify all underlying hazardous
constituents that were present in such
distant-ancestor characteristic wastes at their point of
generation. \ -
Fortunately, the book-keeping needed to track individual
underlying hazardous constituents can be eliminated if testing is
performed to ensure that residues meet UTS levels for all
UTS constituents prior to land disposal. See 60 Fed. Reg. at
43,678 col. 2. In effect, it is possible to ensure substantive
compliance - without the need for complex compliance evaluation -
through the expedient of assuming that every UTS constituent is an
underlying hazardous constituent that requires treatment.
Unfortunately, it appears that substantial compliance evaluation
and book-keeping is necessary anyway to track the original waste
codes and treatability groups of any and all ancestor
characteristic wastes. This information tracking - which is not
necessary to ensure substantive LDR compliance - is necessary
solely to satisfy LOR paperwork requirements. The specific
paperwork requirements involved* are as follows.
First, it appears that operators that use activated carbon to
treat wastes that exhibit hazardous characteristics - or that
exhibited hazardous characteristics at their point of generation -
must prepare LDR notifications recording detailed information
concerning these "original" wastes. At least in the case of
nonhazardous spent carbon, it appears that the notification must
identify the waste codes and treatability groups that applied to
these "original" wastes at their point of generation. Such :
operators must also identify any underlying hazardous constituents
present in these "original" ancestor wastes at their point of
generation, unless the residues ultimately land disposed will be
tested for all UTS constituents prior to land disposal:
The more serious problem is that further LDR notification and
certification requirements apply when residuals from the
regeneration of spent activated carbon are shipped off-site by
the regeneration facility for subsequent management! Again, at
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least in the case of nonhazardous residues, it appears that the
paperwork required must include "a description of the waste
as initially generated." 40 C.F.R. §268.9(d). It thus appears
that the regeneration facility would be .
required to list the waste codes and treatability groups that ,
applied at the point of generation to any characteristic or
formerly-characteristic wastes that were treated with, any of the
spent carbon '
from Which the regeneration residues were in turn derived. In
addition, the regeneration facility would need to identify the
underlying hazardous constituents present in these "distant
ancestor"wastes, again unless residues will be monitored for all
UTS constituents prior to land disposal. Id.
The paperwork management tasks presented by these requirements are
obviously considerable, and they are certainly far more burdensome
than necessary to advance the environmental objectives of the LDR
program. The limitations on the need to track underlying
hazardous constituents is important, because residuals from Elf
Atochem's carbon regeneration activity will consistently meet UTS
levels for organic constituents, and they will meet UTS levels for
all constituents if they are stabilized prior to land disposal.
Elf Atochem should therefore be able to x
' *
obviate the need to track individual underlying hazardous .
constituents. Unfortunately, however, the requirement to track
waste codes and treatability groups for characteristic wastes
still presents extraordinary compliance challenges in the context t
of carbon regeneration activities. These requirements provide no
practical benefit that could not be obtained through far
simpler requirements. . .
Where a waste is subject to UTS treatment standards because one of
its ancestors exhibited a hazardous characteristic, it appears that
the waste code and treatability group of the original ancestor
.waste is of no continuing relevance once the hazardous
characteristic has been removed. A statement that a waste is
subject to UTS treatment standards should by itself be r
sufficient, together with an identification of the underlying
hazardous constituents involved unless residuals will be monitored
for all UTS constituents prior to land disposal. EPA should
therefore eliminate the requirement that LDR certifications
. identify the original characteristic waste codes and treatability
groups that apply in. any case in which the UTS treatment standard
applies. This change would dramatically simplify paperwork
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requirements without any sacrifice of relevant information. ...
RESPONSE .._',
The Agency continues to believe that RCRA mandates "cradle to grave" managment of
hazardous wastes. Characteristic wastes must be identified, therefore, even if they have lost the
hazardous characteristic. The Agency has streamlined the process, however, by requiring in 40
GFR 268.9 that only a one-time notice be placed in the files when a characteristic waste loses its
characteristic.
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DCN PH4P076 . - :
COMMENTER Society of the Plastics Industry ,
RESPONDER PV ,
SUBJECT CLNP .
SUBJNUM 076 ,
COMMENT J
SPI supports EPA's efforts to streamline LDR requirements for .
generators who manage their own waste, such as by proposing to ,
require only a one-time notification and certification to the <
receiving facility, eliminating the requirement to submit waste , , '
analysis plants to States and regions, and reduce record retention
periods from five to three years. 60 Fed. Reg. at 43677. It would .
be of further help for the final rule to remind manufacturers of
their inherent obligations, and to inform them that the use of
POL YM does not trigger the need for treatment, storage and disposal
, facility ("TSDF") permitting. Although permitting is not required
if a generator chooses to manage waste in tanks, containers or
containment buildings to meet the applicable LDR standards^other
RCRA generator and LDR obligations apply. 51 Fed. Reg. 10168 . /"
* (March 24,1986). SPI believes that facilities will be able to
perform the required polymerization well within the accumulated
'' storage time limits. The involved facilities are familiar with .
safe handling techniques and the associated particulars of
.polymerizationtechnology. , . .
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. The use of POLYM, if it is performed within 90 days in a tank or container,
does not trigger the need for a RCRA treatment, storage and disposal facility ("TSDF") permit.
The generator is required, however, to prepare a 1-time notification and keep it in the on site files
under 268.7(a).A , -,
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DCN PH4P085 . * .,
COMMENTER EDF
RESPONDER PV -
SUBJECT CLNP , ^
SUBJNUM 085 -
COMMENT ...'''-
A. Case-By-Case Extensions
On a generic basis, EPA proposes to amend 40 CFR 268,5 to allow
case-by-case extensions of the effective date of up to two years
when first requested by the applicant See 60 FR43677. The
proposal conflicts with the express language of Section 3004(h)(3)
of RCRA, authorizing only one year extensions,-and a maximum one
year renewal. The structure of Section 3004(h)(3) of RCRA is
intended to discourage unnecessary extensions of time by ensuring ;
the provision is utilized only in "extraordinary circumstances,"
with regard to both initial applications and the appropriate .
durations of effective date extensions. 23 The procedure of
reviewing the validity of the extension annually, and inviting
public comment on the extension and the renewal, are important .
elements of accomplishing this Congressional intent.
23 See S. Rep. 98-284,98th Cong., 1st Sess. 19 (1983).
. ' , i
RESPONSE
EPA agrees with the commenter and has decided not to finalize the case-by-case ,
extension renewal as proposed. Section 268.5 will remain as is was before'the proposal, i.e.,
provide opportunity to be granted a one year case-by-case extension, with the requirement that a
one-year renewal can be granted upon application at the end of the first year of the extension.
116 .
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DCN PH4P085
COMMENTED EDF .
RESPONDER PV , '
SUBJECT CLNP
SUBJNUM 085 / . ' '. . .-. '
COMMENT
B. Generator Sampling Plans . . ,
EPA proposes to delete the requirement in 40 CFR 268.7 that
generators managing restricted wastes submit their waste sampling
plans to the EPA Region or authorized state for review and
approval. EPA proposes this deletion as a "streamlining" measure,
but fails to indicate whether and how these sampling plans will be
reviewed if they are not submitted to the appropriate regulatory
agency. Presumably, EPA would rely upon generator inspections to
perform this task, but as recent data regarding generator
inspection frequency indicates, many sampling plans will remain .
imreyiewed for decades if review is linked to inspections. ,''
Through a Freedom of Information Act request submitted in .March
1994 to various EPA Regional offices, EDF obtained data regarding
generator inspection frequency in FY 1993and 1994. In FY 1993, the
following percentage of large quantity generators (LQGs) received
inspections in Region V: IL (3.67%), IN (4.89%), MI (7.9%), OH
. (4.75%). For small quantity generators (SQGs), the applicable
percentages were: IL (
-------
RESPONSE ;
The FY 1996/1997 Memorandum of Agreement (MOA) between EPA
Headquarters and the Regions provides for greater risk-based targeting, and encourages the
Regions and States to focus more attention on hazardous waste generators, a universe which,
previously had low enforcement priority. Therefore, the Agency believes that an increasing
number of generators will be inspected, allowing ah opportunity for the WAPs in question to also
be inspected. In addition, .the Agency believes that the generator has an incentive to comply with
the requirement to prepare the WAP because it assists them in demonstrating that they are in
compliance with all regulations applicable to proper waste identification, thereby ensuring a safe
operating environment and protection of human health and the environment.. Furthermore, the
generator is likely aware that there are serious penalties (up to$ 25000/day) for noncompliance,
so even if generators are not inspected frequently, they must seriously weigh the consequences of
noncompliance.
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DCN PH4PQ89 - .
COMMENTER ASTSWMO . ,
RJESPONDER PV
SUBJECT CLNP v
SUBJNUM 089
COMMENT ;
(3) Notification requirements should be reduced.
In response to streamlining measures for generators that meet the
appropriate treatment standards which are only required to submit a
one-time notification and certification to the receiving
facility[26 3.7(a)(3)], the Task Force agrees with the proposed
simplification of these notification and.certification
requirements. In addition, the Task Force believes that the
notification should only be a one-time activity for all generators
for shipments to a specific receiving facility. In a case where the
generator changes the receiving facility, a new notification would
be required. , .
. The notification requirement was established to disallow
generators from diluting the wastes in order to circumvent an
effective date or otherwise alter the applicable treatment
standard (51 FR40620). In the Phase IV proposal (60 FR 43678),
Appendix VII and VIII of Part 268 contained all the effective dates
v for treatment standards and are proposed to be deleted because
there is no need to know the effective dates, waste by waste, as
all the wastes in the table have treatment standards now in effect.
The second issue concerning the altering of applicable treatment
^ is not as .
significant an issue as it was during the early implementation of
the Land Disposal Restrictions. Specifically, the adoption of
Universal Treatment Standards now has the consequence of minimizing
the differences between treatment standards for different wastes
and minimizes any inappropriate switching of applicable treatment
standards. .
Furthermore, the information necessary for treatment of the waste
is dictated by the treatment facility, and these off-site
facilities require a preacceptance waste profile to determine
i treatability of the waste. Present notification information such
as constituents to be monitored, wastewater or nonwastewater, and
subcategory placed on the notification form will be obtained by
the treatment facility in order for them to properly certify that
.the waste was properly treated, . .
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RESPONSE
reduction effort.
The Agency thanks you for your interest in and support of the paperwork burden
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DCN PH4P091
COMMENTER FMC .
RESPONDER RC/NV l;
SUBJECT CLNP . ' ,
SUBJNUM 091 '.-... *
COMMENT I. FMC Supports the Agency in their Efforts to Improve the
, Land Disposal Restriction program. FMC fully supports and
applauds the Agency for their efforts to improve the Land
Disposal Restrictions (LDR) program./I FMC has previously,
advocated steps to streamline the Land Disposal program. In our
comments to both the Phase II /2 and to Phase III /3 proposals,
FMC requested modifications to the LDR mat would streamline the
system without sacrificing protection of human health and the
environment As the Agency is aware, as stated in the August 22,
,. ' ' . 1995 proposal, the current LDR program is one of the most -
confusing and burdensome (excess paperwork and recordkeeping)
systems within the environmental program. The proposed
modifications go a long way toward revising the system. FMC
believes there are further modifications that can be made to :
make the LDR program more workable. At the Agency's convenience,
; we would be happy to meet with you to discuss further
modifications, a. The Agency is Correct in Removing Outdated.
Confusing and Duplicative Requirements I/ 60 Fed. Reg. 43677,
8/22/95 2/J.F. Schmidt to USEPA, 11/15/93, Docket No.
F-92-CS2P-FFFFF 3/ RJ. Fields to USEPA, 5/1/94, Docket No.
F-95-PH3P-FFFFF FMC concurs with the Agency in removing the ;
- outdated, confusing and diiplicative requirements regarding:-
§268 4:/4 Treatment in Surface Impoundments - §268.7:75
Notification requirements One time Certifications Deletions of
extraneous tables and references in 268.4143 Deletion of the
California Standards Deletion of WAP submittals Record retention
time to 3 years Reference to SW-846 methodologies (see below) -
§268,9:/6 Code clarification - §268.3Q-37:/7 Timing
on prohibitions - Appendices b. The Agency is Correct in
^ Deleting Appendix I but Needs to Modify the New Language FMC
concurs with the EPA in its intent to revise §268.32 regarding
/8 the change from Appendix I to SW-846 /9 but requests that the
Agency revise the language to allow for either a modified method
,or additional methods as approved by EPA. This can be done by
adding at the end of the proposed change (after "EPA Publication
SW-846.n) the following: "or other methods as approved by the '
Regional Administrator or Authorized State1'. In some
circumstances the TCLP methodology cannot be used for various
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. reasons such as matrix interference from various constituents,
detectability issues and general safety procedures due to
' constituents (whether or not listed in 40 CFR §261 Appendix
VIII) that are contained in the waste. Generators, treaters or
disposal facilities which seek to use a modified method wpuld
have to follow the procedures for "Petitions for equivalent
testing or analytical methods" to use a revised method.710 4/
60 Fed. Reg. 43677 57 ibid 67 60 Fed. Reg. 43678.77 ibid 87
ibid 9/"Test Methods for Evaluating Solid Waste, -
Physical/Chemical Methods" 10/40 C.F.R.§260.21
RESPONSE ,,../' ;' ' '
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. The Agency views the commenter's suggestion that modified test methods be
allowed to be used instead of the TCLP is far beyond the scope of the proposed change to omit
an Appendix from Part 268. Therefore, the Agency has not considered this comment in the
context of the final rule: . "
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DCN PH4P093 . ^ , .
COMMENTER Heritage Environmental
RESPONDER PMG
SUBJECT CLNP , , ,
SUBJNUM 093 , ' >.
COMMENT '
Heritage Supports EPA's Proposed Improvements to the Notice and -
: Certification Requirements (40 CFR 268.7) . ,
Heritage supports EPA's proposal to allow generators a one-time
notice and certification for situations where the waste meets
applicable treatment standards. However, Heritage requests that EPA .
; clarify that the one-time notice may be sent to a disposal
facility, as well as a storage or treatment facility. The preamble
discussion of this proposed change states that the one-time
notice would be submitted to the "receiving facility," which would
include a treatment, storage or disposal facility (60 FR 43678). -
The proposed regulatory language for 268.7(a), however, specifies
the one-time notice would be submitted to "each treatment or
, storage facility receiving the waste" (60 FR 43 691), implying this
option is not available for wastes shipped to a disposal facility.
RESPONSE
. ' ' ' ' - '
The Agency appreciates the commenters suggestion for further streamlining of
the LDR paperwork requirements. In this rule, EPA has made significant changes to the LDR .
program and its paperwork requirements, greatly reducing the reporting and recordkeeping
burden on the regulated community. EPA continues to look for ways to further reduce this
burden. However, in order to ensure that the Agency's ability to protect human health and the
environment is not compromised by these changes, we are only implementing those, changes that
have been thoroughly analyzed and which have been previously proposed. As stated previously,
.the Agency will continue to implement changes to the paperwork requirements where practicable
and your suggested changes will be evaluated during this process.
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DCN ; PH4PQ93 .
COMMENTER Heritage Environmental "
RESPONDER PMC
SUBJECT CLNP ,
SUBJNUM 093 . ' .'' /
COMMENT ; -' '. v- ' ; '/''.
i " . .
Heritage also requests that EPA clarify that a treatment facility ' .
shipping a waste that meets the applicable treatment standards also .
may send a one-time notice and certification to the
receiving facility. RCRA-permitted treatment facilities are under
much greater scrutiny with regard to their LDR compliance.
Treatment facility RCRA permits typically include a rigorous '
sampling and analysis protocol to verify compliance with applicable
treatment standards. These facilities also typically generate more '
shipments per facility that meet applicable requirements than .
generating facilities, since their purpose is to treat the waste to
meet these standards prior to disposal. The
same rationale used to justify the reduced requirement for
generators would also apply to treatment facilities. This reduction
in paperwork burden would free more resources to perform other more
effective compliance duties, such as reviewing other paperwork
(i.e., manifests) and identifying potential waste discrepancies.
This proposed modification will greatly reduce the paperwork
burden on both generators and receiving facilities. The
determination as to whether a waste meets the applicable ,
treatment standards is analogous to the initial hazardous waste
determination for a waste streanvBoth. determinations are made at
the point of initial generation and are usually performed
initially, then ' . .
updated on a routine or as-necessary basis, depending on the
variability of the waste stream or changes to the generating ,
process. Generators of hazardous waste are not required to submit
a hazardous waste determination with each shipment. Similarly,
generators should not be required to submit an LDR notice with'each
shipment that merely repeats the same information.
» '
RESPONSE , v
The Agency appreciates your comments suggesting that treatment facilities
shipping waste that meet the applicable treatment standards may also send a one-time notification
and certification to the receiving facility. It was the intent of EPA to include these facilities in
this requirment and the final rule will reflect this. '
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DCN PH4P093 V
COMMENTER Heritage Environmental
RESPONDER PMC "
SUBJECT CLNP '
SUBJNUM 093 ....
COMMENT , .'
In fact, Heritage requests that EPA change the entire LDR notice
and certification requirement to a one-time only requirement,.
unless the waste changes. There seem to be few benefits to v
the requirement for an LDR notice with each shipment, as the .
information once submitted on the initial notice, seldom changes
, for most waste streams. Receiving facilities already know
the applicable treatment standards based on the waste codes '
approved for a waste stream and included on other shipping papers
received with each shipment. Once the appropriate ,
information regarding the LDR compliance of a specific waste stream
is received and filed by the receiving facility, it can easily Be
referenced for future shipments. The one-time notice system
would significantly reduce LDR notice errors, as the generator and
TSDF would be able to concentrate on the completeness and
correctness of the initial notice. Under the current system, the
paperwork is so overwhelming and complex, generators often make :''
errors which divert many of the receiving facilities' resources
towards follow-up arid correction, and increases the potential for
overlooking an inaccurate notice. ^
RESPONSE
EPA appreciates you comments on this issue and has incorporated your
suggested change that the one-time notification include all facilities in the final rule.
125
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DCN PH4P093
COMMENTER Heritage Environmental .'.
RESPONDER PMC
SUBJECT CLNP .-. ,
SUBJNUM 093 '''-,'
COMMENT :
. Heritage also suggests that it would further simplify the LDR
program to consolidate the sections regarding generator and
treatment facility notice and, certification requirements (40 CFR .
268.7(a)and (b)). Since generators may perform treatment on-site
and many treatment facilities are generators, it would be less
confusing and less cumbersome to specify notice and .
certification requirements to a situation (e.g., the waste requires
treatment, the waste meets the treatment standards, etc.), rather
than to a facility's regulatory status. Only one certification
statement would be required if a waste met all of the applicable -'
treatment standards, particularly since many wastes are multi-coded
and would require more than one certification under the current
system. .-'.,.-
' > ..'"'
RESPONSE
- i . .
s
The Agency appreciates the commenters suggestion for further streamlining of.
the LDR paperwork requirements. In this rule, EPA has made significant changes to the LDR
program and its paperwork requirements, greatly reducing the reporting and recordkeeping
burden on the regulated community. EPA continues to look for ways to further reduce this
burden. However, in order to ensure that the Agency's ability to protect human health and the
environment is not compromised by these changes, we are only implementing those changes mat
have been thoroughly analyzed and which have been previously proposed. As stated previously,
the Agency will continue to implement changes to the paperwork requirements where practicable
and your suggested changes will be evaluated during this process.
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DCN PH4P093 .
COMMENTER Heritage Environmental '-..,'
RESPONDER PMC . : . . . .
SUBJECT CLNP ,
SUBJNUM 093 ,
COMMENT '':'...""-."
Heritage Supports Other Proposed Improvements to the Current LDR
- Rules ,
Heritage supports EPA's efforts to streamline and simplify other.
LDR requirements and language of the rules. In particular, Heritage
supports the proposed changes to the text of 40 CFR 268.7 regarding
testing, tracking and recordkeeping requirements. The .
clarification of the language requiring identification of F001-F005
and F039 constituents and the paperwork requirements tables help to
clarify the information required in an LDR notice and
certification.
RESPONSE -
p
The Agency thanks you for your comments and support of proposed changes to
the LDR requirements and language of the rules. The proposed changes, for the most part, are
included in the final rule. -...-.
127
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DCN PH4P093
COMMENTER Heritage Environmental , .
RESPONDER PMC,
SUBJECT CLNP , .
SUBJNUM 093 ' ' ' ' ,
COMMENT .
Heritage also supports EPA's proposal to modify the waste analysis
plan requirement for generators that treat in tanks or containers
on-site. By maintaining the requirement to prepare and implement a
waste analysis plan and keep the plan on site, but removing the
requirement to submit the plan, EPA has streamlined the rule and .
still maintained its substantive features. In addition, EPA's
proposal to clarify the language at 40 CFR 268.9 requiring
identification of characteristics in listed wastes and modify ing
the constituent list for F039 at 40 CFR 268.40 to .
reference universal treatment standard constituents will improve
and clarity the LDR requirements as well. \ ,
RESPONSE
The Agency appreciates your support of the proposed changes to the waste
analysis plan requirements and attempts to clarify language regarding identification of
characterisitics in listed wastes. The Agency is not, however, changing the treatment standard for
' F039 as proposed, as explained in the preamble to the final rule and elsewhere in this response to
comments document. . ,
128
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DCN PH4P093
COMMENTER Heritage Environmental ;
RESPONDER PMC
SUBJECT CLNP - '
SUBJNUM 093 '- .
COMMENT . . .'""-?.'
Lastly, Heritage agrees with EPA's proposal to make the records
retention period for LDR documents three (3) years, rather than
five (5) years. This is consistent with other RCRA and non^RCRA
records retention periods. Such consistency will reduce the
unnecessary confusion created by varying the required retention
period. , , .
RESPONSE
reduction effort.
The Agency thanks you for your interest hi and support of the paperwork burden
129
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DCN . PH4P094
COMMENTER General Motors Corp. .
RESPONDER PV; ,
SUBJECT CLNP
SUBJNUM 094 - ,
COMMENT
Streamlining LDR Notification Requirements (60 FR 43677)
Generators are currently required to file this notification and
certification every time a waste shipment is generated. The
original intent of this requirement was to make certain that .
the receiving facility was aware of the applicability of the LDR's,
since the generator was most familiar with the waste and
regulations. As the LDR program has matured it has become
apparent that the TSDF's are very knowledgeable of the rules and .
often assist the generator in filling out the notification forms ' ,
used by the generator to notify the TSDF. LDR notifications no '
longer serve any purpose.
General Motors recommends that the requirements for LDR
notifications be deleted. Although EPA's proposal to reduce the
'- notification and certification to a one-time requirement for new
and modified waste streams is a substantial improvement over the .
current process, a deletion of the LDR notifications would be most
effective in streamlining the notification process. ,
RESPONSE - '"'" , \ ;-
The Agency does not agree that the LDR notification should be eliminated at
this time. EPA continues to look for ways to further reduce paperwork burden; however, in order
, to ensure that the Agency's ability to protect human health and the environment is not
compromised by these changes, we areonly implementing those changes that have been
thoroughly analyzed and which have been previously proposed. As stated previously, the
Agency will continue to implement changes to the paperwork requirements where practicable
and your suggested changes will be evaluated during this process
130
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DCN PH4P097
COMMENTER Hazardous Waste Management . . ' <
RESPONDER PV '
SUBJECT CLNP . "' '
SUBJNUM 097
COMMENT - .
Improvements To Land Disposal Restriction Program (60 FR 43677)
Clean Up of Part 268 Regulations
Section 268.5: Procedures for case-by-case extensions to an
effective date (60 FR 43677)
The Agency proposes to amend §268.5(e) to clarify that an
. applicant can be granted additional time (up to one year) beyond
the one-year case-by-case extension, when the applicant first '
.applies for the case-by-case extension. The HWMA supports this
amendment to reflect that the additional one-year extension can be
requested and received with the initial application request.
RESPONSE . '
Although the idea of granting additional time beyond the one-year case-by-case
extension when the applicant first applies was proposed by the Agency, it is not being included in
.the final rule. Concerns were raised by commenters about the affect such a change would have
on the LDR case-by-case extension process. EPA believes that if an applicant did not have to file
a second petition to gam additional time, then that applicant would not have sufficient incentive
to make a good-faith effort during the initial one-year period as required. Therefore, the Agency.
is not making any changes to the case-by-case extension application process in the final rule.
131
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DCN PH4P097
COMMENTER. Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097
COMMENT .
Section 268.7 - Waste Analysis and Recprdkeeping (60 FR 43677)
. HWMA supports the Agency's proposal to streamline the waste
acceptance procedure by eliminating obsolete (e.g., references to §
268.41) and inconsistent requirements (e.g., 5 years for
record retention) from the existing regulations. Our members
believe that the existing notification/certification requirements
of this section do not yield useful information when they evaluate
whether they can manage the restricted waste. HWMA supports the
Agency's efforts to delete non-beneficial paperwork from the
hazardous waste regulations because these requirements have done
nothing but provide Agency inspectors with a potentially easy
compliance issue when evaluating a generator's LDR records. Below
. are more detailed comments on each section of the recordkeeping
requirements. ' '- .
RESPONSE
reduction effort.
The Agency thanks you for your interest in and support of the paperwork burden
132
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DCN PH4P097 ,
GOMMENTER Hazardous Waste Managemen .
RESPONDER PV
SUBJECT CLNP '
,SUBJNUM 097 , , . ' '
COMMENT
Section 268 J(a)(2): California List Applicability
The Agency proposes to delete any references to § 268.32 and RCRA
§ 3004(d), California List wastes, because existing treatment
standards supersede all statutory standards. We generally agree
. ... with this evaluation; however, the following California List
wastes should continue to be restricted under RCRA 3 004(d) as
.follows: .
Liquid waste containing greater than or equal to 50 ppm
; Polychlorinated Biphenyls (PCBs); .
Liquid or nonliquid wastes with greater than or equal to 1,000 ppm
Halogenated Organic Compounds (HOCs) listed in Appendix III; and
Liquid waste containing greater .than or equal to 134 ppm Nickel or
.". 130 ppm Thallium .
Our members' understanding is that a hazardous waste (e.g., D002)
containing PCBs at greater than 50 ppm must be treated using
incineration or fuel substitution. HWMA believes that . " ' ,
this standard is correct because when there is an inconsistency.
between RCRA and TSCA regulations, the most stringent standard
governs (40 CFR § 761 .l(e)). A review of both regulations
reveals that the statutory standard of incineration or fuel -
substitution could be construed to be more stringent than existing
PCB requirements. Under these PCB disposal regulations; specific
. liquid PCB wastes are eligible for disposal in a TSCA approved
chemical landfill without undergoing additional .treatment.
Specific examples include: '
Liquid hazardous waste containing PCBs less than 500 ppm which'
have been treated (i.e., chemically) to render the waste non-liquid
(See § 761.60(a)(3) and75(b)(8)(ii)); and
Containerized liquid hazardous waste containing PCBs' less than 500
ppm which meet §264,314(d).
Our opinion is that requiring a generator to meet a specified
treatment technology would be more stringent than the existing PCB
regulations which do not require a specified treatment technology.
HWMA also requests that the Agency provide the rationale for why
other California List (i.e.,HOCs and specific metals) wastes
listed earlier are no longer subject to statutory restrictions. .
Our
133
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members believe that the California List restriction is applicable
to a F005 listed waste which contains greater than 1,000 ppm of
HOCs. In this example, the waste contains toluene, which was used
for its solvent properties, and chloromethane at greater than 1,000
ppm. Past guidance from the Agency has been that the California
Last HOC standards do not apply where the waste is subject to Part
268, Subpart D treatment standards for a specified HOC. In
addition, the Agency has stated that where a hazardous waste
contains both HOCs and non-HOC constituents, the waste would be
prohibited from land disposal until it has met the treatment
standard for both HOC and non/HOC constituents (52 FR 25773). In
this example, there is no treatment standard for chloromethane in
Subpart D. In accordance with the guidance issued by the Agency,
such waste would be subject to the §268.42(a)(2) treatment standard
of incineration. Because of the complexity and confusion which has '"'
surrounded the California List, the Agency needs to provide clear
and concise guidance as to the applicable LDR regulations for such
waste streams.
HWMA also believes that a liquid waste which is listed as an F006
hazardous waste and contains thallium at greater than 130 ppm would
be subject to a California Listing restriction. In this example,
the Agency needs to determine the applicable LDR standards.
Specifically, would the waste require treatment to meet the F006
listing under section 268.40 and to the statutory level for nickel,
or would the waste only be subject to the F006 listing under
section 268.40? :
Until the Agency can answer the questions posed, the regulated
community must assume that it is appropriate to assume that all
California List standards have been superseded. The Agency needs to
evaluate whether statutorily this unique type of hazardous waste
continues to have a treatment standard identified under RCRA
§3004(d). If the Agency's review determines that all
California List standards have been superseded, then we support the
Agency's decision to delete any reference which requires a
notification of their treatment standards. However, if the
Agency determines that specific California List standards continue
to exist, we recommend that the Agency identify the types of
restrictions which may apply and list them. Listing such
applicable restrictions should eliminate any future confusion over
the California List ..>,'
RESPONSE
134
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The Agency continues to believe that all the treatment standards for California
List wastes have been superseded by more specific standards (55 FR at 22675; 52 FR at 29993).
The Agency believes that the treatment standards for listed hazardous wastes are the most
specific. Next would be the characteristic waste treatment standards with their associated * <
treatment standards for underlying hazardous consitutents (UHCs).
The Agency stated in the In 1990, the Agency stated its belief that all standards
had been superseded at that time with the exceptions of (1) liquid hazardous wastes that contain
over 50 ppm PCBs; (2) HOC-containing wastes identified as hazardous by a characteristic
propertly.that does not involve HOCs, as for example, an ignitable waste that also contains
greater than lOOOppm HOCs; and (3) liquid hazardous wastes that exhibit a characteristic and'
also contain over 134 rng/1 nickel and 130 mg/1 of thallium. These three exceptions have now
become subject to more specific standards as explained below. All of the wastes hi these
examples are subject to the LDR requirement that all UHCs reasonably expected to be present in
a characteristic hazardous waste at the point of generation must be treated to meet Universal
Treatment Standards (UTS) (arid, of course, the hazardous characteristic would also have to be
treated prior to land disposal).
.What is eliminated under this approach, however, is the requirement in some
cases to incinerate the waste rather than treat in any way other than impermissible dilution to
meet UTS levels. The Agency does not view this as in any way making the regulations less.
stringent. The Agency sets methods of treatment when the residues cannot be analyzed to see if
they meet UTS, or when the technology is clearly far superior to other types of treatment for a ,
particular waste. Neither of these conditions exist for the examples provided by the commenter.
In the case of PCBs, they must meet UTS and then be disposed in a TSCA-approved landfill.
The Agency believes that regulations under two statutes is as protective as required incineration
of the PCBs. While the Agency once believed that it was necessary to require incineration of
high-HOC wastes, it is possible that they can be adequately treated- i.e.treated in a way that
destroys or removes these constituents from the waste before disposal' by other technologies to
meet the UTS concentration levels. Therefore the California List treatment standards are
superseded and are no longer in effect in the RCRA program. »
135
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DCN PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097
COMMENT .
Section 268.7(a)(2): Notification of date waste is subject to
prohibition '
This requirement appears to have been inadvertently added to the
rule during the technical amendments to the Phase IILDR rule based
on members conversations with personnel from the waste Treatment
Branch. In addition, the requirement has historically been
applicable only to restricted waste which was subject to -.
case-by-case extension, a capacity variance, etc. Therefore, HWMA
supports the Agency's proposal to delete it from the proposed
§268.7(a)(2). .]'.''
RESPONSE ' .
' »i ' .
The Agency acknowledges the commenter' s support.
Section 268.7(a)(2): Paperwork Requirements Table
, Ttie Agency proposes listing the requirements applicable for the
, different notification forms by addressing each requirement in a
table. The concept is sound: however, the check marks used
to identify each requirement are hard to distinguish. A generator
or regulator could misread which section is checked. The Agency
. should add a line, which separates each row in the
required information column and each citation column, for easier
confirmation of which row is checked.
In addition, the proposed table outlines the notification ,
requirements for hazardous debris which will be treated using the (
alternative treatment technologies identified in §268.45. The
Agency proposes to delete the reference that the date of
prohibition be listed for each hazardous debris. This requirement
was inadvertently added during the technical amendments to the
Phase II LDR rule based on members' conversations with personnel
from the Waste Treatment Branch. Therefore, HWMA supports the
Agency's proposal to delete it as a requirement from the
existing§268.7(a)(3).
136
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RESPONSE , , . .
The Agency modified the table to make it easier to read. The Agency
acknowledges the commenter's support on the proposed change to the debris requirements.
137
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DCN PH4P097 . , .
COMMENTER .Hazardous Waste Managemen ' .
RESPONDER PV .
SUBJECT CLNP
SUBJNUM 097 ,
COMMENT , '
Section 268.7(a)(3): Clarify "naturally" meets .treatment
standards ,,-.,.
This section addresses hazardous waste which, when originally '
generated, "naturally" meets treatment standards. The Agency
proposes to reduce the notification and certification requirements
for generators which have such waste streams from each shipment to
a one-time notice. We generally support this proposal and recommend
that the Agency clarify this requirement to clearly indicate that
tills section is applicable to restricted hazardous waste which meet '
the LDR treatment standards as generated. The wording proposed is
ambiguous enough that a generator could misinterpret this section.
The addition of the following language to this section is
recommended so that it is clear that the one-time notification is
applicable only to nontreated waste: :
"If the waste meets the treatment standards upon original
generation:" ,
RESPONSE - '
1 v- - r
The commenter's suggested language has been considered in writing the
regulation. ' .
138
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DCN PH4P097
COMMENTER Hazardous Waste Management '
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097 - /
COMMENT ! . , ' ..
. Section 268. 7(a)(3): Receiving facility applicability "
The language in this section only addresses waste which
"naturally" meets treatment standards and will be sent to a
, treatment or storage facility. If a hazardous waste is not .
prohibited from land disposal, it is highly probable that the waste ,
will be sent directly to a disposal facility. s
Therefore, the Agency should amend the proposed language so that
it is clear that this requirement also is applicable to generators
who send waste which "naturally" meets treatment standards to
disposal facilities. Amending the language to address a disposal
facility will eliminate any potential confusion for the regulated . ,
community. The following language change is recommended: '
"If the waste meets the treatment standard: The generator must
send a one-time notice and certification to each treatment,
storage, or disposal facility receiving the waste."
i
RESPONSE
The Agency has considered the language suggested by the commenter in the
regulation. . .
139
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DCN PH4P097
COMMENTER Hazardous Waste Managemen , ,
RESPONDER PV
SUBJECT CLNP , , ,
SUBJNUM 097 v
COMMENT ''.',.-
Section 268. 7(a)(3): Definition of one-time notice
HWMA supports the Agency's proposal to reduce the frequency with
which a generator must submit a notification and certification for
waste which "naturally" meets applicable treatment standards and is
not prohibited from land disposal from every shipment to a
one-time notice. This reduction'greatly reduces the burden on
generators and TSDFs in maintaining duplicative records(see ;
previous section, above):
However, the Agency needs to identify a specific point in time
when an LDR notice must accompany the waste. The term, "one-time," :
is ambiguous and does not reflect whether shipments received prior
to the notice meet BOAT. The Agency should amend the
proposed language to require that the LDR notice and certification
accompany the initial shipment By requiring a generator to
certify that the waste meets BOAT with the initial shipment, "
the generator will assume some responsibility for determining if
subsequent shipments of the same waste are prohibited.
In addition, this requirement does not leave room for different
interpretations which may cause an inspector with an agency to ; ,
. pursue enforcement action. In order to avoid unnecessary
resources and costs associated with determining each state's and
Region's interpretation, the Agency should amend the proposed
language to read: , .
"If the waste meets the treatment standard: The generator must
send a notice and certification with the initial shipment to each .
treatment, storage, or disposal facility receiving the waste."
RESPONSE
The Agency has considered the language suggested by the commenter in the
regulation.
140
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DCN PH4P097 . ' ; ..
COMMENTER Hazardous Waste Management
RESPONDED PV -'..
SUBJECT CLNP : .
SUBJNUM 097 , . . . ,
COMMENT .
: Section 268.7(a)(3): Certification required for waste which
"naturally" meets BDAT ,
The proposed certification for waste which "naturally" meets BDAT
has been changed to incorporate language which addresses waste
which is exempt from treatment standards. Existing regulations do
not require a certification to accompany waste subject to
case-by-case extensions or capacity variances. While the Agency
may view this change as minor it becomes a very significant issue
for some hazardous waste management facilities because
certification changes require changes to LDR forms which are used -
. by customers. . ' , .
This repeated exercise results in the discarding of thousands of .
forms currently in stock because they cannot be converted in a
cost-effective manner to include the new certification. While
these conditions are favorable for the printing industry, it is
very costly for a waste management company that provides its
customers with LDR forms. .
HWMA does hot support the Agency's proposal to change the existing
certification language.for wastes which "naturally" meet applicable
1 treatment standards. The changing of one word in an LDR-required '
certification can cost hazardous waste management companies
hundreds of thousands of dollars in additional compliance costs
which are not beneficial to public health and the environment. In
fact, the opposite effect on the environment results because of
the natural resources are needlessly utilized.
"i . '
RESPONSE , : ,V
The Agency has reconsidered the certification language as suggested by the
commenter, and omitted reference to wastes subject to an exemption.
141
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DCN PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP .
SUBJNUM 097
COMMENT
Section 268. 7(a)(4): Definition of one-time notice ,
This section addresses notification requirements for hazardous
wastes that meet certain exemptions which allow the waste to be
land disposed without meeting applicable treatment standards. HWMA
supports the Agency's proposal to reduce the frequency of
supplying LDR forms from each shipment to a one-time notice. This
reduction will greatly reduce the unnecessary burden which
generators and TSDFs bear in maintaining duplicative records. As
stated above, the Agency needs to identify a specific point in time
when a LDR form must accompany the waste. The term, "one-time," is
ambiguous and leaves room for different interpretations.
Again, the Agency should amend the proposed language to require
that the LDR form accompany the initial shipment. Requiring this
specific frequency places some responsibility on me generator to "
correctly identify the status of its waste under part 268
regulations. The following addition is
recommended to the proposed language:
, "If a generator's waste is so exempt, then the generator must
submit with the initial shipment a notice to each land disposal
facility receiving the waste," .
RESPONSE ;
The Agency has considered the language suggested by the commenter in the
regulation. ''.'-.
142'
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DCN .- PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP ,, '
SUBJNUM 097 . , - .
COMMENT .
Section 268.7(a)(4) New requirement to submit a certification.
The Agency's proposed language references the need to submit a
certification. When reviewing the informational requirements
outlined for exempt waste in the proposed "paperwork requirements , '
table," the Agency has added a requirement to provide a ' ,
certification for such waste. The Agency appears to be imposing new
and additional recordkeeping requirements. Under existing
requirements located in §268.7(a)(3), there is no requirement to ,
provide a certification of ;
any kind to a disposal facility when LDR exempt waste is shipped.
Adding a requirement to submit a certification statement for exempt
waste, even one-time, undermines the Agency's attempt to reduce the ';
recordkeeping requirements under the LDR regulations.
New LDR forms for use by generators will also have to be developed
to include the new certification language. As discussed above, this
proposal could result in the discarding of thousands of forms ,
currently in stock because they cannot be converted in a cost
effective manner to include the new certification. The Agency needs
to evaluate the necessity of requiring a new certification. - \
We recommend, therefore, that the Agency delete the check mark
. from the proposed paperwork requirements table which identifies
that a certification must be submitted with waste subject to
an exemption identified under §268.7(a)(4). Keeping this .
requirement hi the final rule will undermine the Agency's attempt
to streamline the LDR process. .
RESPONSE -..''...'.
- , / " *
The Agency has reconsidered the certification.language as suggested by the
commenter, and omitted language mdicating a certification is necessary for wastes subject to an
exemption.
143
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DCN PH4P097 . ,
COMMENTER Hazardous Waste Managemen . .
RESPONDER PV , .
SUBJECT CLNP .
SUBJNUM ,097 . '
COMMENT . - '
Section 268.7(a)(5): Submittal of mini-WAPs
This section details the requirements for a generator that treats
a restricted waste to meet BOAT in a 90-day accumulation tank, .
container, or containment building. Existing requirements ,
'. include the submittal of a waste analysis plan (WAP) to EPA 30 days
prior to conducting treatment The, Agency proposes to delete the
requirement for submittal of the WAP and only require
its availability on-site. ,. . . ., . ,
HWMA supports the deletion of the requirement because of the
administrative delays associated with an Agency reviewing the
contents of the mini-WAP. Even though an approval is not required '
under federal regulations, we believe that some Agencies have an
internal policy that when a document is required to be submitted,
it must be reviewed. These types of policies have discouraged ,
generators from treating their waste on-site. The removal of a
requirement to submit such a document will help promote innovative
treatment technologies. > ,
1 > ' ^
RESPONSE
i ' . . r . ' '. '
The Agency acknowledges the commenter' s support on the proposed change to
the 90-day generator WAP requirements.
144
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DCN PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP ,
SUBJNUM 097 . ; ' ,
COMMENT u
Section 268.7(a)(5):. information required for generator treated
waste
Subsection (iii) of §268.7(a)(5) notes that site generated waste
. treated in 90-day accumulation units, when shipped off-site, must .
comply with §268.7(a)(4). Section §268.7(a)(4) is applicable to v
hazardous waste which is exempt from meeting treatment standards.
This section requires that a generator submit a certification that
'the waste meets applicable treatment standards upon its generation.
The date the waste is subject to a prohibition is also required to
be identified on the '
LDR notice. .The identification of a prohibited date is not
currently required for generators who treat ori-site in 90-day
units. . . . -
HWMA believes it is more appropriate to reference the proposed
§268.7(b)(4)(I) which outlines treatment facility requirements.
Since the generator is treating the waste to meet
applicable treatment standards under the LDR program, it does not
make sense to use a certification which has been developed for use
with restricted waste which meets BOAT without treatment
(i.e.,ttnaturaily''meets).
In addition to the certification issue, the Agency should clarify
whether a generator, not a commercial treater, that performs
partial treatment of a restricted waste is required to use
any certification or should a certification be used only when all
. applicable treatment standards have been met. A review of existing
and proposed LDR notification regulations does not identify a clear
direction on how the generator is required to notify under such
circumstances. .
In order streamline the regulations, the Agency should amend the '
proposed language in§268.7(a)(5)(iii) as follows: .
"Wastes shipped off-site pursuant to this paragraph must comply
with the notification and certification requirements of
§268.7(b)(5)(I) if all applicable treatment standards have been
met, or the certification requirements of §268.7(b)(iv) if UHCs
require treatment in decharaterized waste."
RESPONSE '
'.'-'''. ' '. . 145 . ' . . '
-------
The Agency has changed the cross-references as suggested by the comrnenter.
146
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DCN PH4P097 ^ , .
COMMENTER Hazardous Waste Managernen
RESPONDER PV , :
SUBJECT CLNP ,
SUBJNUM 097
COMMENT
, - Section 268.7(a)(8): Retention period for LDR notices -
The Agency proposes to reduce the record retention period for LDR
notices from five years to three years. We support this change
because LDR record retention requirements will finally ,
be consistent with other hazardous waste record retention
requirements.
RESPONSE
The Agency thanks'you for your interest in and support of the paperwork burden
reduction effort.
147
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DCN PH4P097 -.-':.
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097 ,.;'.-
COMMENT
Section 268.7(a)(9): Notification requirements for lab packs
This section outlines the requirements for lab packs which are
eligible to utilize the alternative treatment standard of
incineration. The preamble section notes that the Agency believes.
that there is no need to identify whether a lab pack contains
hazardous debris or wastes which are wastewaters/nonwastewaters
(WW/NWW) because the alternative treatment standard is a specified
technology (60 FR 43678). HWMA agrees with this position that
identifying the treatability group (i.e., WW/NWW, debris) for waste
packaged in a lab pack subject to alternative treatment standards
serves no useful or practical purpose.
We also support the Agency's decision to delete the requirement to
provide this information. However, the proposed language in
§268.7(a)(9) notes that with each shipment the generator must
comply with paragraph (a)(2). One of the requirements in this
paragraph is the need to identify applicable WW/NWW categories. The
Agency needs to correct this error or the intent to reduce useless
information will not be implemented.
In addition, the Agency should delete the requirement to identify
the applicable subcategory/subdivision. The rationale for deleting
the subcategory would is this same as that for deleting the WW/NWW
category. Restricted waste placed into a lab pack which is
eligible for the specified technology of incineration does not have
numerical standards to meet. Therefore, there is no need to
identify what subcategory the waste meets. It is also important to
note that waste streams are not prohibited from placement into a
non-Appendix lap pack by subcategory. Again, the need to identify a
subcategory is needless when the treatment standard is a
specified technology.
In summary, the Agency should amend the proposed language hi
§268.7(a)(9) as follows:
"If a generator is managing a lab pack waste.... the generator
must submit a notice to the treatment facility hi accordance with
paragraph (a)(2) of this section, except for identification of
wastewater/nonwastewater categories and waste specific
subcategories(such as D003 reactive cyanide)." .
148
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RESPONSE , ' .. - '
1 ~ " .-"';*
The Paperwork Requirements Table 1 has been changed to include a column for
lab packs It should be noted that there are no requirements to identify the waste constituents or
subcategories for the hazardous wastes placed in a lab pack. ,
149
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DCN. PH4P097
COMMENTER , Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097 ,,
COMMENT ' ,
Section 268.7(a)(9): Lab pack certification
This section requires that a generator use a specific
certification when a lab pack will be manages using the alternative
treatment standard of incineration. The language for the
certification has changed several times during the last year and a
review of the proposal reveals that the Agency has once again
changed the certification language. The proposed language is the
same language which was promulgated on September 19,1994, under -
,the Phase IILDR rule (59 FR 48045).However, on January 3,1995, .
the Agency published technical amendments to the Phase IILDR RULE
. , and changed the certification language for lab packs (60 FR 245).
HWMA does not believe that there is any positive environmental
' impact supporting these changes. As noted earlier, insignificant
changes to the wording of a certification can cause the hazardous . ,
waste industry significant costs to create new LDR forms and buy
back and recycle existing inventory. In addition, the confusion -
which is created in the regulated community is unnecessary.
Therefore, the Agency should amend the proposed lab pack
information so that it is identical to the January 3,1995
technical amendment version. ,
> r
RESPONSE :
The Agency is finalizing the certification language as proposed. The primary
difference in language advocated by the commenter and the language that is being finalized is
that the final language includes a statement that the lab pack is being sent to a combustion facility
for treatment, this addition was requested by other commenters that convinced the Agency that
it is important to certify that the treatment method required by the lab pack alternative treatment
standard is being carried out. . . -
150
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,DCN . '-PH4P097 :
COMMENTER Hazardous Waste Management
RESPONDER PV. " '' '
SUBJECT CLNP
SUBJNUM 097
COMMENT
. Section 268.7(b)f California List Applicability
The LDR notification and certification requirements for facilities
treating hazardous waste, in accordance with standards established
under §268, are outlined in this section. The most significant
proposed amendment identified is the removal of the contents of
existing §268.7(b)(2) which references the California List wastes.
As before, the Agency must determine whether California List wastes
which exist are no longer subject to RCRA. If the determination
is legally binding, then HWMA supports the Agency's proposal to
delete all references to California List waste.
*» s
RESPONSE
. The Agency believe that all the treatment standards for California List wastes
have been superseded by more specific standards (55 FR at 22675; 52 FR at 29993). The
Agency believes that the treatment standards for listed hazardous wastes are the most specific. ,
Next would be the characteristic waste treatment standards with their associated treatment
standards for underlying hazardous consitutents (UHCs).
The Agency stated in the In 1990, the Agency stated its belief that all standards
had been superseded at that time with the exceptions of (1) liquid hazardous wastes that contain
over 50 ppm PCBs; (2) HOC-containing wastes identified as hazardous by a characteristic
propertly that does not involve HOCs, as for example, an ignitable waste that also contains ,
greater wan 1 OOOppm HOCs; and (3) liquid hazardous wastes that exhibit a characteristic and
also contain over 134 ing/1 nickel and 130 mg/1 of thallium. These three exceptions have now
become subject to more specific standards as explained below. All of the wastes in these
examples are subject to the LDR requirement that all UHCs reasonably expected to be present in
a characteristic hazardous waste at the point of generation must be treated to meet Universal
Treatment Standards (UTS) (and, of course, the hazardous characteristic would also have to be
treated prior to land disposal). '-,.'.
What is eliminated under this approach, however, is the requirement in some
cases to incinerate the waste rather than treat in any way other than impermissible dilution to
meet UTS levels. The Agency does not view this as in any way making the regulations less
stringent the Agency sets methods of treatment when the residues cannot be analyzed to see if
they meet UTS, or when the technology is clearly far superior to other types of treatment for a
particular waste. Neither of these conditions exist for the examples provided by the commenter. ,
In the case of.PCBs, they must meet UTS and then be disposed in a TSCA-approved landfill.
.151
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The Agency believes that regulations under two statutes is as protective as required incineration
of the PCBs. While the Agency once believed that it was necessary to require incineration of
high-HOC wastes, it is possible that they can be adequately treated i.e.treated in a way that '
destroys or removes these constituents from the waste before disposal by other technologies to
meet the UTS concentration levels. Therefore the California List;treatment standards are
superseded and are no longer in effect in the RCRA program.
152
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DCN PH4P097 '
.COMMENTER Hazardous Waste Managemen .
RESPONDER PV .-".,' . . .
SUBJECT CLNP ,
SUBJNUM 097, . v , :
COMMENT . . -, .
Section 268.7(b): Characteristic waste with UHCs . '
- The Agency proposes to require the identification and treatment of :
applicable UHCs forD004-D011 characteristic wastes. Comments
regarding its disapproval to require UHC treatment standards for * .
characteristic metal wastes appear later in this document.
However, if the Agency promulgates such a requirement, it should
amend existing §268.7(b)(5)(iv) to referenceD003-DO 11. This
section requires a specific certification to be filed when the
characteristic has been removed but UHCs still require treatment. ,.
The addition of these waste codes will clarify what LDR
notification and certification requirements are expected for
characteristic waste. The Agency should amend the existing
language in §268.7(b)(5)(iv) to read as follows: . ,
-Tor applicable characteristic wastes D001-D043 that are:
The word "applicable" should be added because not all
characteristic hazardous waste is subject to treatment standards
for UHCs. For example, D002 waste which is managed in a
CWA REGULATED unit is not subject to UHC identification. This
wording would help clarify which characteristic waste is subject to .
this section.
- s. ' \
RESPONSE ,
The Agency is not finalizing treatment standardsincluding requirements to treat"
UHCs-for toxic characteristic (TC) metal wastes in this final rule. The commenter's suggestion
will be considered in the Context of the Phase IV final rule that will be promulgated in April of
1998, when treatment standards for TC metal wastes will be finalized.
153
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DCN PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097. . -,
COMMENT
Section 268. 7(b)(4)(iii): Analytical detection limits
This section outlines the requirements for a treatment facility
which treats organic wastes and uses . ,, .
the analytical detection limit as an alternative means of
verifying compliance without analytical problematic constituents.
The proposed language references §268.43 which was deleted '
and moved as a result of the Phase IILDR final rule (59 FR 48046).
The alternative is now located under §26&.40(d). The Agency should
add the citation "§268.40(d)" in place of the obsolete citation of
"§268.43(c)." ' , ,
1 '"'. «
RESPONSE .
The commenter's suggestion has been incorporated into the final rule.
154
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DGN PH4P097 , .
COMMENTER Hazardous Waste Management ^
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097. ' v ' ' .
COMMENT '
Section 268.7. (c)(l): Disposal of recyclable material
This section outlines the requirements for the disposal of
recyclable material used in a manner constituting disposal. The . ,
existing regulation states that such facilities must comply with
the generator standards (paragraph a) or treatment standards
(paragraph b) of §268 whichever are applicable. The proposed
section eliminates the reference for complying with treatment
standards(paragraph b). HWMA does not fully understand why this
. reference has been omitted and the Agency does not explain why it
is appropriate to delete such a requirement. We believe the Agency
needs to add this reference to the final section.
RESPONSE
The commenter' s suggestion has been incorporated into the final rule.
155'
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DCN PH4P097 ...'.:
GOMMENTER Hazardous Waste Managemen
RESPONDER PV
SUBJECT CLNP ' , ,''
SUBJNUM 097
COMMENT
Section 268.7(a)(2): Notifications required for each shipment
Existing regulations require that for each shipment of waste a '
generator must notify the treatment or storage facility in writing
of specific information. In an effort to streamline the
, LDR REGULATIONS, HWMA proposes the following option which will
provide a great benefit to generators of restricted waste.
The Agency established a notification requirement for each
shipment when the first LDRs were promulgated (51 FR 40572).
Beginning with this prohibition and continuing through the Phase
II LDR rule, the Agency has consistently stated that a disposal
facility has the ultimate responsibility in ensuring that all :
restricted wastes meet applicable treatment standards before, being
land disposed. This burden has directly affected how hazardous
waste management companies develop and maintain waste approval
procedures to evaluate whether wastes are acceptable
for management One of the steps in the process to determine
whether to approve or disapprove a waste stream for management is
to determine what treatment standards are applicable and whether
the waste requires treatment. This information must be received
prior to shipment in order for a treatment or storage facility to
determine if the waste is acceptable for receipt. The information
required in §268.7(a)(l), except for manifest number, has already
been obtained and maintained in a file which identifies the waste
stream. 'Therefore, the notifications submitted by a
generator with each shipment only provide information which is not
used and redundant
The Agency needs to amend the regulations under existing §268.7(a)
and (b)(4) and (5) to require a notification and certification only
with the initial shipment Unless the waste stream changes, the
generator should not be burdened with submitting paperwork and
keeping a copy of this paperwork in its files. The following
change to section 268.7(a) is recommended:
"If the waste does not meet the treatment standard: With the
initial shipment of waste, the generator must notify the treatment
or storage facility in writing." . ,
156
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RESPONSE ; ;
The Agency has changed the LDR notification'process; in the final rule,
requiring that a one-time notification be sent with the initial shipment if the waste does or does
not meet the treatment standards. No tuther notification is required until such time as the waste,
process or treatment, storage or disposal facility changes.
157
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DCN PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV '
SUBJECT CLNP , ...
SUBJNUM 097 / . , "
COMMENT
Section 268.9: Special rules regarding wastes that exhibit a
characteristic (60 FR 43678)
, The Agency proposes to amend §268.9(a) and (b) to clarify how
wastes should be identified when they are both listed and exhibit a
hazardous characteristic. Existing regulations require that,
for the LDR notification, a waste must be identified as a listed
waste and also as a characteristic waste, unless the listed waste
has a treatment standard for the constituent or addresses
the hazardous characteristic that causes the waste to also be
characteristically hazardous. If the listed waste has treatment
standards that address all characteristics, then the :
characteristic waste codes do not apply.
HWMA generally supports this clarifying change to §268.9(a) and
, ( (b); however, because the Agency failed to print the proposed
changes to paragraph (b) (60 FR 43694), we cannot comment on the
specific change. Therefore, HWMA recommends that the language in
paragraph (b) state clearly that if the listed waste has a
treatment standard that addresses all of the characteristics,
then the characteristic waste codes do not attach to the waste
stream. , , '.
In addition, the amendment to paragraph (d)(l)(ii) is to clarify
that if all underlying hazardous constituents, reasonably expected
to be present in a characteristic waste, are monitored by :
the treatment facility, .then the generator is not required to list
' any of the UHCs on the LDR NOTIFICATION. If, however, a subset
(e.g., 230 of 240 UHCs> will be monitored, then all constituents
must be included on the LDR notification.
RESPONSE
The commenter's suggestion has been incorporated into the final rule.
158
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DCN PH4P097 '' , ^
.GOMMENTER Hazardous Waste Managemen
RESPONDER PV , ,
SUBJECT CLNP . ,- . '
SUBJNUM 097 '..-"-, _ . , , .
COMMENT . \ ''--
HWMA believes that this requirement should be expanded to include . '
less notifications when a subset group of UHCs cannot be accepted / .
at a treatment facility because this requirement provides no . -
. benefit When the facility already knows compounds are not
present in the waste through an approval process this is an
unreasonable requirement A facility should be able to accept
'-/ these waste streams without the burden of requiring additional UHC
documentation that provides noenvironmental benefit The Agency
. needs, to reevaluate this issue especially in the case of permit
restrictions. .
RESPONSE -
i*' - .
EPA continues to look for ways to further reduce paperwork burden; however, in
order to ensure .that the Agency's ability to protect human health and the environment is not
compromised by these changes, we are only implementing those changes that have been
thoroughly analyzed and which have been previously proposed. As stated previously, the
Agency will continue to implement changes to the paperwork requirements where practicable
and your suggested changes will be evaluated during this process .
159 .
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DCN PH4P097 .
COMMENTER Hazardous Waste Managemen
RESPONDER PV . , .
SUBJECT CLNP "
SUBJNUM 097 - . %
COMMENT ,
Section 268.30-268J7(CFR 43678) ,
The Agency proposes to remove §268.31 through §268.37 because
the treatment standards for wastes in these sections are. now in
effect, and all of these wastes are not prohibited from
land disposal. Thus, the sections are no longer necessary. In
addition, the Agency proposed to replace old §268.30 with a new
section that provides the prohibition dates for the wastes
included in this proposal. .
HWMA does not in support this proposal because these sections . -
provide useful historical information, and the removal of these
sections will give the appearance that the wastes are no longer .
prohibited. As an alternative, the Agency could remove Subpart B
to §268 which contains the schedule for land disposal
restrictions. Sections 268.10,268.11, and 268.12 can be removed
much easier than the proposed sections.
i t - .
RESPONSE . .
The Agency has updated Appendix VII and Appendix VIII to Part 268 to include
the effective dates of treatment standards for all prohibited hazardous wastes, therefore the
prohibition language for the earlier LDR rulemakings is no longer necessary. The sections have
been superseded or have be deleted as proposed.EPA disagrees with the commenter's drafting
suggestion since the California List wastes are all prohibited, just under other provisions. Since
the California List was meant as a stop-gap until these later prohibitions took effect (as noted by
EPA in a number of places such as the Third Third rule preamble), eliminating the California List
prohibition now that the other rules have been promulgated makes sense. Furthermore, sections
268.10,268.11, and 268.12 were removed in a previous rulemaking. '
160
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DCN PH4P097 *
COMMENTER Hazardous Waste Managemen .
RESPONDER PV
SUBJECT CLNP . , "
SUBJNUM 097 . ; .
COMMENT - . ' , '*. ';
Part 268 Appendix I - TCLP . " ' '- r ': ' .
The Agency proposes to remove Appendix I because the TCLP test,
method reference to SW-846will be incorporated into the text of
the regulatory language. HWMA supports this proposed change. , , .
''. ' ' '.-' ' - -
RESPONSE . ;
The Agency appreciates the interest in and support of its efforts to reduce burden
and streamline the LDR program. '._'"..''
161
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DCN PH4P097
COMMENTER Hazardous Waste. Managemen , -, *. .
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097 r ' .
COMMENT
Part 268 Appendix II - Treatment Standards (As Concentrations in
the Treatment Residual Extract), ^
The Agency proposes to remove Appendix II to Part 268 because it
incorrectly refers to treatment standards in sections 268.41,
268.42, and 268.43, and there is no longer a need to reference the
solvent treatment standards. HWMA supports this proposed text ,
removal.
RESPONSE
*- *' '
The Agency appreciates the interest hi and support of its efforts to reduce burden
and streamline the LDR program.
162
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DCN PH4P09;7 .
COMMENTER Hazardous Waste Managemen
RESPONDER PV . : .
SUBJECT CLNP . , '
SUBJNUM 097 / V
COMMENT
Part.268 Appendix III-List of Halogenated Organic Compounds
Regulated Under 268.32.
The Agency proposes to remove Appendix III, which contains a list
of halogenated organic compounds regulated under §268.32, because
, the California List treatment standards have been superseded by ,
Umversaf Treatment.Standards, and thus there is nolonger a need
for a listing of halogenated organic compounds because they are
California List wastes. HWMA disagrees with the Agency's statement
that all California List treatment standards have been superseded . ,.
by the Universal Treatment Standards, and that there is no longer a
need for.a listing of Halogenated Organic compounds. Members
believe that the California List requirements are still in effect - ' ,
(refer to the previous discussion regarding 268.7(a)(2)). For
example, if a K061 contains any of the halogenated organic
compounds listed in appendix III, that are not characteristically
hazardous in a quantity greater than 1000 mg/kg, then pursuant to
§268.42(a)(2), the waste must be incinerated in accordance with the
requirements of 40 CFR Part 264, Subpart O or Part 265,Subpart O.
* Because California List HOCs can still require a waste stream to
7 be incinerated under the California List, the Agency must maintain ,'
the inventory of California List HOCs in Appendix III to Part 268.'. ,
As stated earlier, we are indifferent to the Agency's final
determination of this matter. However, if the Agency makes this '
determination, it must ensure that clear guidance is provided to
the regulated community. , '
RESPONSE
The Agency believes that all the treatment standards for California List wastes
have been superseded by more specific standards (55 FR at 22675; 52 FR at 29993). Therefore,
Appendix II has been removed from Part 268. , , ' <
163
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DCN PH4P097 ' '',
COMMENTER Hazardous Waste Manageraen * . ,
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097
COMMENT
Part 268 Appendix VI - Recommended Technologies to Achieve
' Deactivation of Characteristics in Section 268.42 >
The Agency proposes to amend Appendix VI to clarify that
characteristic wastes that also contain UHCs must be treated not
only by a "deactivating" technology to remove the characteristics, '
but also treated to achieve the UTS for UHCs. HWMA supports this
language clarification. . .
RESPONSE , '
The Agency appreciates the interest in and support of its efforts to reduce burden
and streamline the LDR program.
\
/
164
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DCN PH4P09.7 ,
CPMMENTER Hazardous Waste Managembn -',..'.
RESPONDER PV . - ,
SUBJECT CLNP .
SUBJNUM 097 . '
COMMENT .
Part 268 Appendix VII-Effective Dates of Surface Disposed Wastes .
Regulated in the LDRs , .
:. The Agency proposes to remove Appendix VII because all of the ;
wastes listed in ihe table have treatment standards now in effect;
therefore, Acre is no need to know the effective dates. ,
HWMA supports this proposed change.
RESPONSE
The Agency has updated Appendix VII to Part 268 to include the effective dates
of treatment standards for all prohibited hazardous wastes.
165
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DCN / PH4P097
COMMENTER Hazardous Waste Managemen
RESPONDER PV ^ ,
SUBJECT CLNP '
SUBJNUM. 097 .
COMMENT . ' .
Part 268 Appendix VIII- National Capacity Variances for UIC '
Wastes.'- '"'. , ' , ;
The Agency proposes to remove Appendix VIII because the effective
dates for these wastes, when deep well injected, are past. HWMA
believes that the current list of wastes in Appendix VIII can be ;, ;
removed; however, because the Agency is proposing national . ; .
capacity variances for deep well injected Phase IV wastes, the
Appendix should be maintained. The appendix should list the Phase
IV wastes subject to a UIC capacity variance. , '
RESPONSE
The Agency has updated Appendix VIII to Part 268 to include the effective dates
of treatment standards for all prohibited hazardous wastes that are deepwell injected.
166 ~
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DCN PH4P097 . .
COMMENTER Hazardous Waste Managemen ,:
RESPONDER PV
SUBJECT CLNP
SUBJNUM 097 ~
COMMENT . - ' '.'-', .
Part 268 Appendix X - Recordkeeping, Notification, arid/or . .
Certification Requirements Y , .
The Agency proposes to remove Appendix X because it summarizes . '
paperwork requirements that are proposed to be changed in the Phase .
Ill proposal and this proposal. HWMA believes that The proposed
tables in §268.7(a) and (b) that discuss the regulatory
requirements would allow for the removal of Appendix X if the
tables are finalized as discussed. \ ,
RESPONSE . . .
" ' " " '
, . ' The Agency appreciates the interest hi and support of its efforts to reduce burden
and streamline the LDR program.
167
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DCN PH4P107
COMMENTER Uriiroyal Chemical Co.
RESPONDER PV
SUBJECT CLNP . .
SUBJNUM 107 '.'..'.';
COMMENT
4. Uniroyal Chemical supports changing the record retention
period for land disposal records to three years to be consistent
throughout the. RCRA Program.
In order to ensure that all records were kept for the appropriate
time period, Uniroyal Chemical has been in the practice of
maintaining all disposal related records for five years due to
the inconsistency in the regulatory requirements. We appreciate the
revision as it will result in shorter record retention for our
facilities, more space will be created, .and less time will need to
be spent
on file management. The existence of records which are four and
five years old is not useful as there has been no need to refer to
these records unless one was being inspected by an environmental
agency,
RESPONSE
reduction effort.
The Agency thanks you for your interest in and support of the paperwork burden
168
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DCN PH4P109
COMMENTER Ford :,..'/-
RESPONDER PV . ' ' ', '
SUBJECT CLNP ,
SUBJNUM 109 . , ~
COMMENT . . '
The rule proposes a streamlining measure to the land disposal
regulation notification process. It is .
proposed that a generator whose waste meets the appropriate
treatment standards only be required to submit a one-time ;. ,
notification and certification to the treatment storage or
, " disposal facility (TSDF). Generators are currently required to '
file this notification and certification every time a waste '
shipment is generated. -
The original .intent of this requirement was to make certain that
the receiving facility was aware of . .
, the applicability of the LDR's, since the generator was most
familiar with the waste and the regulations. As the LDR program has
grown in complexity it has become apparent that the TSDF's are most
knowledgeable of the rules and often assist the generator in
filling out the notification forms used by the generator to notify
. the TSDF. LDR notifications no longer serve any purpose. ,
Ford recommends that the requirements for LDR notifications be
deleted. Although the proposal to reduce the notification to a . .
one-time requirement for new and modified waste streams is
a substantial improvement over the current process, a deletion of .
the LDR notifications would best accomplish the goal of
'. streamlining the notification process. This is a paperwork change ,
that would save substantial expense of resources with no adverse
environmental impact .
RESPONSE
'. . The Agency does hot agree that the LDR notification should be eliminated atr
this time. EPA continues to look for ways to further reduce paperwork burden; however, in order
to ensure that the Agency's ability to protect human health and the environment is not
compromised by these changes, we are only implementing those changes that have been
thoroughly analyzed and which have been previously proposed. As stated previously, the
Agency will continue to implement changes to the paperwork requirements where practicable
and your suggested changes will be evaluated during this process
169
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DCN ,PH4P109 .
COMMENTER Ford
RESPONDER PV
SUBJECT CLNP / : ; ' ,
SUBJNUM 109 , ' . .-'.->.
CpMMENT
Revisions to Waste Analysis Plan Submittal Requirements for , , ,
Generators . .
Currently generators treating prohibited waste in tanks,
containers, or containment buildings to meet applicable treatment
standards are required to file a waste analysis plan with the <
EPA Regional Administrator or the authorized state agency at least
30 days prior to the treatment activity. The proposed rule would
eliminate the generator filing requirement. The generator
would still be required to prepare a detailed waste analysis plan
and keep, the plan on site in the generator's records. This proposed .
streamlining of the generator's report filing requirements should . .
be adopted. The managing of this additional paperwork by the ,
"~ agency, states and the regulated community do not add any value to
waste management and compliance processes. The plan still would be
developed, documented and made available for inspection at the
facility so that agency enforcement tools remain intact.
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. ,
170 .
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DCN PH4P109 '''.'
COMMENTER Ford
RESPONDER PV .','"
SUBJECT CLNP ,
SUBJNUM 109 . . , ' . .
COMMENT
Revision of LDR Notification Record Retention Period .
The proposed rule changes the record retention time period for LDR
. notification forms from five years to three years. This would make .,
the LDR.records retention requirements consistent with the record
retention requirements for waste manifests, which are closely -
related documents. Ford supports this revision. Similar record
retention periods for all paperwork associated with waste shipments
will assist facilities' environmental staff in meeting records '
retention requirements. /
Ford believes that these recommendations, if implemented, would
result in an equally or more effective rule that is less burdensome
to both the regulated community and the regulatory agency.
RESPONSE ; . ^ '
. The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. . ;. ' . ..
171
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DCN PH4P113 '..-....
CQMMENTER Chemical Manufacturers Assn -
RESPONDER PV ''.''. . , ,
SUBJECT CLNP "' ' ,.. ,' ' '
SUBJNUM ;.113 ,
COMMENT
E. CMA commends the Agency for its efforts to "clean up" the
existing regulatory language of the land disposal restrictions
(LDR) and suggests that the Agency finalize it separate from v ,
the Phase III and Phase IV proposals if they be delayed.
Both the Phase ill and Phase IV proposals offer needed fixes to
the existing LDR program that the regulated community would benefit
from without harming human health or the environment. While CMA has
. suggested holding up promulgation of the LDR Phase III and Phase IV
proposals (see Section VII of these comments), we believe that
there are no reasons to hold up finalizing the "clean ups" that the
agency has proposed. Specifically, CMA supports finalizing of the
following proposed "clean ups":
Phase III
removal of § 268.2(f)(l), § 268.2(f)(2), § 268.2(f)(3) from the
definition of wastewaters
removal of §268.8 ,
removal of § 268.10, § 268.11, and § 268.12 from Subpart B
Phase IV ~
revisions to § 268.4(a)(2)(iv) to clarify that there are. no .
additional recordkeeping requirements ,
other than those found in §264.13 and §265.13
revisions to § 268.5(e) to clarify that a case- by-case extension
to an effective date on a land
disposal restriction can be granted for up to two years
revisions to § 268.7 to clarify the existing notification
requirements. CMA especially concurs with the Agency on: reducing notification
requirements for generators whose waste stream meets the LDR standards in §
286.7(a)(3); not requiring generators that treat their wastes
to submit waste analysis plans to the Regional Administrator hi §
268.7(a)(5); reducing the record retention time from 5 to 3 years
in § 268.7(a)(8); and streamlining the lab pack notification requirements to only
include the requirements of § 268.7(a)(2), § 268.7(a)(6), and §268.7(a)(7).
revisions to § 268.9 to clarify that a waste stream which carries
both listed and characteristic codes that the characteristic codes do not attach when
the listed treatment standards address each characteristic
removal of §§ 268.30 - 268.37 removal of Appendices I, II, II, VII, VIII, IX and X
172
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RESPONSE .
/ ' . ,,
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. Most, but not all, of the proposed changes listed above are being made in the
Phase IV final rule. The Agency is not promulgating a change to 268.5 to allow that renewals for
case-by-case extensions could be applied for at the time the ihtial case-by-case extension,is
applied for. Furthermore, Appendices VII and VIII are being revised rather than deleted.
173
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DCN PH4P104 ,
COMMENTER SSINA ;
RESPONDER RC/NV
SUBJECT CLNP
SUBJNUM 104
COMMENT V. PARAGRAPH (B) UNDER 40 C.F.R. ~ 268.9 SHOULD BE REVISED IN
CONJUNCTION WITH PARAGRAPH (A) TO AVOID UNINTENDED TREATMENT
REQUIREMENTS FOR LISTED HAZARDOUS WASTES In the preamble to LDR
Phase IV, the Agency states that paragraphs (a) and (b) under 40
C.F.R. § 268.9 will be revised to explain "how wastes should be
identified when they are both listed and characteristic wastes."
60 Fed. Reg. at 43,678. However, the Agency only proposes
revisions to paragraph (a) in LDR Phase IV. Paragraph (b) is not
. revised in LDR Phase IV. The Agency should revise paragraph (b)
in conjunction with paragraph (a). Otherwise, some listed wastes
will inadvertently and inappropriately be treated as both a
listed and a characteristic waste. This will impose unintended
treatment requirements for some listed hazardous wastes. '-'
Responding to the proposed rulemaking for LDR Phase III, SSINA - .
previously commented that paragraph (b) should be revised in
conjunction with paragraph (a). See, Letter from SSINA to EPA .
(May 1,1995). These comments on the proposed LDR Phase III .
rule, 60 Fed. Reg. 11,702 (Mar. 2,1995), are attached as
Exhibit 3. The attached comments are consistent with the -
; Agency's stated intent in the preamble to LDR Phase IV. The ,
Agency summarizes its intention for the "clean up" of 40 C.F.R. .
§ 268.9 by stating: The existing regulations require that for ,
the LDR notification, a waste must be identified as a listed
waste and also as a characteristic waste unless the listed waste
has a treatment standard for the constituent or addresses the .
! hazardous characteristic that causes the waste to also be
characteristically hazardous. 60 Fed. Reg. at 43,678. However,
revising paragraph (a) without revising paragraph (b) would not
meet this "clean up" goal and,would unintentionally impose extra
treatment requirements for some listed hazardous wastes.
Therefore, as SSINA previously indicated in its comments to LDR .
' Phase III, the Agency should revise paragraph (b) in conjunction
with paragraph (a). Paragraph (b) should be revised according to
SSINA's previously submitted comments. See comments as attached
as Exhibit 3. .
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RESPONSE ,'.-..''
"'- ^
As explained in the Response to Comments Document for the Phase III final
rule, the Agency sees no need to amend 268.9(b). Paragraph (b) requires that wastes mixtures be
evaluated to determine if the listed portion of the waste has a treatment standard for the
constituent that makes the characteristic portion of the waste characteristic. If so, then only the
treatment standard for the listed waste must be met for the waste mixture. If, however, the listed
waste does not address the constituent that makes the waste characteristic, a determination must
be made on the characteristic portion of the waste and underlying hazardous constituents (UHCs)
reasonably expected to be present in the waste must also be treated. The commenter's concern
that paragraph (b) subjects all listed wastes which also exhibit a characteristic to a requirement to
evaluate whether the waste contains UHCs is unfounded. EPA has already determined the
constituents of concern for listed wastes and is not imposing a requirement to also determine the
characteristic and UHCs in listed wastes.
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DCN PH4A004 .
COMMENTER Heritage Environmental Se
RESPONDER RC
SUBJECT CLNP . .
SUBJNUM 004 ,
COMMENT Reduction-of Paperwork Requirements Heritage strongly supports
EPA's proposal to expand the one-time notice and certification
allowance proposed in the original Phase IV proposed rule to ;
generator wastes that do not meet treatment standards and wastes
shipped from treatment facilities to other treatment facilities _
or disposal facilities. Expansion of the one-time notice and
certification to treatment facilities is reasonable because
treatment facility RCRA permits typically include a rigorous .
sampling and analysis protocol to verify compliance with
applicable treatment standards. The same rationale used to
justify the reduced requirement for generators would also apply
to treatment facilities. There seem to be few benefits to the
requirement for an LDR notice with each shipment, as the
information once submitted on the initial notice seldom changes
for most waste streams. Receiving facilities already know the
applicable treatment standards based on the waste codes approved
for a wastestream and included oh other shipping papers received
with each shipment Once the appropriate information regarding
1 the LDR compliance of a specific wastestream is received and
noted by the receiving facility, it can easily be referenced for
future shipments. The one-time notice system would
significantly reduce LDR notice errors, as the generating
facility and TSDF would be able to concentrate on the
completeness and correctness of the initial notice. Under the
current system, the paperwork is so overwhelming and complex,
generators often make errors which divert many of the receiving
facilities'resources towards follow-up and correction, and .
increases the potential for overlooking an inaccurate notice.
RESPONSE
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. , '
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DCN. PH4A006
COMMENTER Department of Energy '.;,'>'
RESPONDER RC ,
SUBJECT' CLNP
SUBJNUM 006.
COMMENT ]IL Proposed Reduction in Paperwork Requirements for the Land
. Disposal Restrictions Program IIA Section 269.7 1. D. 2363, ,
col. 3., and v. 2372. col. 3 - D. 2373, col, 1 - EPA proposes to
change 40 CFR 268.7(a)(2) which currently.requires generators to
notify the treatment or storage facility in writing with each
shipment of a waste that does not meet the LDR treatment
standards. As revised, 40 CFR 268.7(a)(2) would require
notification to the treatment or storage facility only with the
first shipment of .such a waste. A new notice would be required ,
only if changes occurred to the waste or process generating the
waste, or the waste, was shipped to a different treatment or
storage facility. The notice must include the information in
column "268.7(a)(2)" of the Notification Requirements Table in
40 CFR 268.7(a)(4). DOE supports the proposed modification./
However, as was stated in DOE's comments on the LDR Phase IV
proposed rule, EPA should conform the title used in 40 CFR ' ;
268.7(a)(2) to refer to the table in 40 CFR 268.7(a)(4) with the .
actual title of the table. Presently the actual title is .
s. "Paperwork Requirements Table," rather than "Notification
Requirements Table."
RESPONSE,. .
The preamble and regulatory language correctly refer to the Paperwork
Requirements Table 1 and Table 2 in the final rule. .
As EPA states in the preamble, shredded circuit boards are often shipped
in boxes, bulkbags, supersacks, drums, and other containers
(61 pi 2363, cot. 1). DOE Comments,
Proposed Rule regarding Land Disposal Restrictions Phase IV,
Specific Comment ffl.A.3.c(l)(b)(I), p. 25 (11/20/95). In
addition, DOE requests clarification in regards to the extent of
the notification and certification requirements that apply in
cases where a restricted waste is generated, stored, treated and
disposed at the same site. -As EPA is aware, DOE operates large,
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complex Facilities which may include within their boundaries, .
but not proximate to one another, both generating units and
treatment,, storage, or disposal units.x In such circumstances,
shipments of hazardous waste may occur entirely "on-site" (and '
( such shipments must comply with certain notification , ,
: requirements). DOE requests that EPA clarify how the proposed
change to the LDR notification requirements (.as well as all - ' ' .
other LDR notification requirements) apply to such on-site
shipments. .
RESPONSE .
, The Agency prefers not to address specific examples of the applicability of the
regulations (as submitted by the commenter) in this Response to Comments Document. Rather,
if these examples are raised in a letter to the Agency, interpretations of the regulations will be
made. EPA believes as a general matter that responding to questions such as these without a
specific factual context can lead to confusion or error, and consequently declines to do so here.
2, D. 2363, col. 3.'- D. 2364, col. 1 - The proposed
one-time notification and certification requirements for wastes
that do not meet the treatment standard as generated would not
apply to lab packs. The Agency asserts that the one-time
notification requirement would be inappropriate for lab pack
wastes because it is highly unlikely that lab packs will contain
. exactly the same hazardous wastes each time they are generated.
EPA specifically requests comments on this issue. Although lab
packs are highly variable in most cases, there are certain
instances where generators ship, either on a regular or a ; ;
periodic basis, routine and consistent lab packs. Typically,,.
lab packs are managed in accordance with °268.42 and may occur
on a periodic basis. It would seem appropriate that for lab
packs which are managed based on a consistent process or routine
waste stream, the same one-time notification relief should be
afforded that is being - proposed for other restricted wastes
(provided the waste, the process, and the receiving facility
do not change" from waste shipment to waste shipment).
Generators (and treatment facilities shipping residuals for
further treatment or ultimate disposal) will be required to make
this determination for each waste stream. Generators of lab
packs should be no different in this respect.
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RESPONSE.
The one-time notification requirement is being extended to lab packs.
3. D. 2364, col.l: and ip. 2373, col. 1 - EPA proposes to change 40 CFR
268.7(b)(4) which currently requires treatment facilities to
notify subsequent treatment or disposal facilities of the LDR
status of wastes or treatment residues with each shipment. As
revised, 40 CFR 268.7(b)(4) would require notification by
treaters only with the initial shipment. A new notice would be
required only if changes occurred to the waste or treatment .
residues, or if shipment occurred to a different treatment or
disposal facility. DOE supports the proposed modification.
However, as was stated in DOE's comments on the LDR Phase IV
proposed rule,' it appears that the reference to 40 CFR 261.3(e)
in proposed 40 CFR 268.7(b)(4) should be changed to either 40
CFR 261.3(00) or 261.3(f)(2), which exclude certain hazardous
debris from regulation. EPA removed 40 CFR 261.3(e) from the
regulations on October 30, 1992 [57 FR 49279]. Therefore, since
40 CFR 261.3(e) has been removed from the regulations, and
since, even before it was removed, °261.3(e) did not address
hazardous debris, DOE believes the reference to it in proposed
°261.7(b)(4)isanerr6r. 3 DOE Comments, Proposed Rule
regarding Land Disposal Reactions Phase IV, Specific Comment
IILA,3.cO)(m), p. 28 (11/20/95).
RESPONSE
i .
The commenter correctly pointed out that the 261.3(e) was not the right citationthe citation has
been corrected to refer to 261.3(f).
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DCN PH4A009
COMMENTER IPC - -
RESPONDER RC - , -
SUBJECT CLNP -. '' - ' . ' \] -...."
SUBJNUM ,009 -' :. .''._.
COMMENT Finally, IPC would like to commend EPA for proposing to
streamline the reporting and record keeping burden associated
with the Land Disposal Restrictions (LDR) Program. The proposal
would establish a one-time notification process for wastes that - '
do not meet LDR treatment standards at the point of generation.
This process would - replace a current requirement that requires.
shippers to notify the receiving facility every time such .waste
is shipped. IPC appreciates EPA efforts to streamline and
, eliminate redundant and unnecessary administrative procedures
that consume facility resources but which do not compromise the
protectiveness or enfprceabiliry of the LDR program. IPC looks
forward to EPA's issuance of additional streamlined record
keeping and reporting rules in the future.
RESPONSE .' "' . ' .-.;" ' ' '-''.., - '
The Agency thanks you for your interest in and support of the paperwork burden
' reduction effort.
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DCN . PH4A011
COMMENTER NY State Dept of Environ
RESPONDER RC , . . - ,
SUBJECT CLNP .
SUBJNUM Oil
COMMENT 5. Land Disposal Restrictions General This Department agrees
with the EPA on their paperwork reduction initiatives for the
LDR. The proposed changes outlined an pages 2372 and 2373 of
the January 25,1996 Federal Resistor are welcomed. However the
revised text of 40 CPU 268.7 (b)(5) retains the references to 40
CPR 268.32 and RCRK 3V004 (4). These references appear to be no
longer applicable. The references are to the California list
which is being eliminated. Section 2GS.32 is proposed as a
renumbered section dealing with mineral processing wastes. To
continue in its effort to "clean up" the LDR and remove
unnecessary, outdated regulatory language EPA should take this
, opportunity to remove all references to the California list.
There are several of these references remaining in PART 268
which will create confusion for the regulated community. We
believe this to be simply an oversight, since EPA has previously
stated the California list has bean superseded by more specific,
treatment standards. New York State also believes that EPA
should clarify how the California list has been superseded with
regard to liquid hazardous waste containing over 50 ppm PCBs, or
hazardous waste containing over 1,000 ppm halogenated organic
compounds, (HOCs), and which is hazardous for a property that
does not involve toxics. It is unclear that this is the case
and this is a critical issue, as the California List is still
imposed by RCRA 3004(d) and, therefore, can only be superseded
by requirements that are at least, equally stringent. PCBs or
. ; HOCs as regulated hazardous constituents of a listed waste, or
as underlying hazardous constituents of a characteristic
non-metal waste would be addressed when the LDR specifies
treatment for underlying hazardous constituents to the UTS
level. But, for example, how will liquid hazardous waste (e.g.,
characteristically hazardous for a metal) that does not have : . '
PCBs as regulated hazardous constituents and contains over 50
. ppm PCBs be regulated under the LDR? With the California list
being eliminated from Part 268, New York (which regulates PCB
wastes over 50 ppm as hazardous) would like to see in the final
rule an explanation of how this has been superseded. For PCBs,
is TSCA the answer? It would appear that TSCA would clearly
impose requirements when liquid PCB levels exceed 500 ppm (i.e.,
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land disposal is prohibited), but what supersedes the California
list prohibitions when PCBS levels are in the range of,50-500 ' .
ppm? The regulated community in New York, and other states
disposing of PCBs in New York, have had many confusing scenarios
arise due to the statement by EPA that the entire California - . . ,
list has been superseded. . ; ,
RESPONSE
The Agency continues to believe that all the treatment standards for California
List wastes have been superseded by more specific standards (55 FR at 22675; 52 FR at 29993).
The Agency believes that the treatment standards for listed hazardous wastes are the most
specific. Next would be the characteristic waste treatment standards with their associated
treatment standards for underlying hazardous consitutents (UHCs). , .
. The Agency stated in the In 1990, the Agency stated its belief that all standards
had been superseded at that time with the exceptions of (1) liquid hazardous wastes that contain
over 50 ppm PCBs; (2) HOC-containing wastes identified as hazardous by a characteristic
propertly that does not involve HOCs, as for example, an ignitable waste that also contains
greater than lOOOppm HOCs; and (3) liquid hazardous wastes that exhibit a characteristic and
also contain over 134 mg/1 nickel and 130 mg/1 of thallium. These three exceptions have now
become subject to more specific standards as explained below. All of the wastes in these
examples are subject to the LDR requirement that all UHCs reasonably expected to be present in
a characteristic hazardous waste at the point of generation must be treated to meet Universal
Treatment Standards (UTS) (and, of course, the hazardous characteristic would also have to be
treated prior to land disposal). . . '
What is eliminated under this approach, however; is the requirement in some
cases to incinerate the waste rather than treat in any way other than impermissible dilution to '
meet UTS levels. The Agency does not view this as in any way making the regulations less .
stringent. The Agency sets methods of treatment when the residues cannot be analyzed to see if
they meet UTS, or when the technology is clearly far superior to other types of treatment for a
particular waste. Neither of these conditions exist for the examples provided by the commenter.
In the case of PCBs, they must meet UTS and then be disposed in a TSC A-approved landfill.
The Agency believes that regulations under two statutes is as protective as required incineration
of the PCBs. While the Agency once believed that it was necessary to require incineration of
high-HOC wastes, it is possible that they can be adequately treated- i.e.treated in a way that .
destroys or removes these constituents from the waste before disposal - by other technologies to
meet the UTS concentration levels. Therefore the California List treatment standards are
superseded and are no longer in effect in the RCRA program.
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DCN , PH4A016 '
COMMENTER Public Service Electric &
RESPONDER RC '
SUBJECT CLNP ,
SUBJNUM 016 .,
COMMENT LDR Notification Simplification of LDR Notification
Requirements PSE&G supports EP A's proposal to modify the LDR
notification requirements by allowing a one-time notification ,
for multiple shipments of the same waste that do not meet
treatment standards, from the same generator to the same "'"'
treatment facility, (61 Fed. Reg. 2363-64) PSE&G applauds the
Agency for its interest in eliminating unnecessary regulatory .
burden, while insuring continued compliance with the LDR
requirements and simplification of the LDR process. PSE&G
requests the Agency consider elimination of the LDR notification
requirement entirely as most wastes are now subject to the LDR
program, and incorporate LDR notification information the Agency
feels necessary,into the Uniform Hazardous Waste Manifest.
RESPONSE
The Agency does not agree that the LDR notification should be eliminated at
this time. . , .
EPA continues to look for ways to further reduce paperwork burden; however, in order to ensure
that the Agency's ability to protect human health and the environment is not compromised by
these changes, we are only implementing those changes that have been thoroughly analyzed and
which have been previously proposed. As stated previously, the Agency will continue to
implement changes to the paperwork requirements where practicable and your suggested changes
will be evaluated during this process .
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DCN PH4A017 !
COMMENTER Chemical Waste Management
RESPONDER RC . , , ,
SUBJECT CLNP . \ ~
SUBJNUM 017
COMMENT IX. Changes to §268.7 (61 Fed. Reg. at 2372) The Agency is
proposing to reduce the LDR Notification/Certification -
requirements applicable to generators and treatment facilities.
The Agency is proposing to change §268.7(a)(2), §268.7(a)(9),
_§268:7(b)(4), and §268.7(b)(5). Following are CWM's specific
comments on each of these proposed changes. A. §268.7(a)(2)
(61 Fed. Reg. at 2372) Under §268.7(a)(2), as proposed in the
Phase IV LDR rule, a generator that is managing a restricted
waste, and determines that the waste does not meet the
applicable treatment standards is required to notify the
treatment or storage facility in writing and include specific '
information. The Agency is proposing to change this requirement x
to a one-time notice to each treatment or storage facility .
receiving the waste, while also requiring the generator to place
a copy in the file. No further action is necessary until the ,
.waste changes or the waste is sent to a different facility, at '
which time a new notice must be sent and a copy placed in the
generator's file. CWM commends the Agency for proposing this
regulatory change to the requirements. Changes such as this
will help to alleviate the overwhelming paperwork burden for
generators and permitted TSDFs .
RESPONSE .
The Agency thanks you for your interest in and support of the paperwork burden
reduction effort. , ,
185
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186
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DCN 'PH4A017 ,
COMMENTER Chemical Waste Management
RESPONDER RC ,
SUBJECT CLNP '
SUBJNUM 017
COMMENT B. §268.7(a)(9) (61 Fed. Reg. at 2373) The Agency is
proposing that generators managing a lab pack containing
hazardous waste that wishes to use the alternative treatment
standard for lab packs found at §268.42(c), must continue to
provide a notice with each shipment to the treatment facility.
In addition, the Agency is reducing the amount of information .
required with this notice, and is changing the certification
statement that must accompany this notice. CWM believes that the
proposal to require a notification with each shipment is . .
unnecessary in the case of lab packs that are being managed
under the alternative lab pack requirements of §268.42(c). CWM
disagrees with the Agency's statement "that it is highly . .
unlikely that lab packs will contain exactly the same hazardous
wastes each time they are generated, since they are typically
used to consolidate small amounts of a number of various
chemical wastes to facilitate handling and treatments. CWM
believes that lab packs do contain the same hazardous waste
codes that are approved on a profile specific basis under a
facilities waste analysis plan. CWM uses a profile to obtain
, detailed information on a generator's waste which includes the
process generating the waste; the physical and chemical
parameters of the waste, and whether the waste requires
treatment. This information is then used to determine whether
«. the waste can be managed at the facility. For example, an .
approved lab pack profile to an incineration facility will
, , indicate specific waste codes. An approved lab pack profile may
be approved for D001 wastes. Each shipment from that generator
may contain different chemical compounds; however, each compound
exhibits the characteristic of ignitability. This is an over
simplified example, as many profiles contain multiple codes and
. some shipments may not include every waste code; however, the '
key. is that the lab packs consistently contain the same waste
codes or a subset of waste codes approved under a profile.
Further, CWM believes that the 268.42 requirement to incinerate
lab packs is a clear basis to reduce paperwork, and lends itself
well to a one-time notification on a profile specific basis. CWM encourages the
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Agency to re-examine this requirement, and to reduce the notification requirements
to a one-time notice that is profile specific.
RESPONSE " .
The Agency has reexamined the lab pack issue and has decided to allow a one-
time notification for lab packs unless the waste, process or receiving facility changes. The
Paperwork Requirements Table 1 has been changed to include a column for lab packs. It should
be noted that there are no requirements to identify the waste constituents or subcategories for the
hazardous wastes placed in a lab pack.
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DCN PH4A017
COMMENTER Chemical Waste Management , '
RESPONPER RC
SUBJECT CLNP v
SUBJNUM 017
COMMENT C. §268.7(b)(4) (61 Fed. Reg. at 2373) The Agency is
proposing to reduce the notification requirements for a
treatment facility that ships waste or treatment residues to a
land disposal facility to a one-time notification. If the waste
changes or a new facility is used a new notice must be sent and
a copy placed in the files. CWM supports this proposed change;
however, CWM believes that the proposed language should be
changed to reflect the specific information that is required.
CWM recommends that the last sentence in (b)(4) be changed from
"The one-time notice for all other waste shall include the
requirements:" to reference the paperwork requirement tables for
§268.7(b). It is not clear to CWM in the Phase IV rule published
( on August 22,1995, which paragraph this table is located in, or
' what the specific requirements are as the language is currently.
proposed.
RESPONSE
The commenter's suggestion has been considered in revising the final rule.
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DCN PH4A017 ... ^
COMMENTER Chemical Waste Management
RESPONDER RC ,
SUBJECT CLNP
SUBJNUM 017
COMMENT D. §268.7(b)(5) (61 Fed.. Reg. at 2373) The Agency is
proposing to reduce the certification requirements for a
treatment facility shipping waste or treatment residues to a
land disposal facility where the waste has been treated to meet
the applicable treatment standards to a one-time notification.
CWM supports this proposed change; however, as stated in the ,
comments on 268.7(b)(4), CWM believes that the language should .
be modified to reference the paperwork requirement table so that
the regulated community can identify the specific information
which must be included with this notice.
RESPONSE
i
The Agency is not convinced there is a need to modify 268.7(b)(S) as the
commenter suggests. Wastes that are subject to paragraph (b)(5) are also subject to (b)(3), which
directly references the Paperwork Requirements Table 2, setting out the information needed on
the notification.
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DCN PH4A017 . ,
COMMENTER Chemical Waste Management '
RESPONDER RC
SUBJECT - CLNP .
SUBJNUM '017 ' . , .
COMMENT E. General §268.7 Comments Within the §268.7 paperwork
..'*requirement tables located in proposed §268.7(a) & (b), as well .
as under the current requirements, the Agency requires the
^ identification of the waste code subdivisions/subcategories. In
both the proposed and current language the Agency provides an
example which states, "(such as D003 reactive cyanide)." CWM
questions whether the entire regulatory subdivision/subcategory , '
as it appears in §268.40 must be included on the
notification/certification, or whether an abbreviation of the
subdivision/subcategory can be used similar to the example the
Agency uses in the current and proposed regulatory language. "
The reason for CWM's question is based on a conversation with
EPA personnel shortly after the Ignitable/Corrosive rule was
published on May 24,1993. See 58 Fed. Reg. at 29,860. In this
conversation EPA indicated that the complete
% subdivision/subcategory must be included on the ' ' ,'
notification/certification form. CWM believes that the complete
regulatory subdivision/subcategory description is unnecessary
provided that the information provided allows the
treatment/disposal facility to determine the appropriate
subdivision/subcategory. For example, CWM believes that use of
"Reactive Cyanides" should be sufficient information rather than
having to include "Reactive Cyanides subcategory based on ,
261.23(a)(5)". CWM specifically requests that the Agency provide
detailed examples to address this issue in the final rule
preamble discussion so that the specific requirements are clear
to the regulated community. In addition, CWM encourages the
Agency to allow the regulated community to use shortened ' - .
versions of the subdivision/subcategory descriptions.
RESPONSE
It is the Agency's interpretation that shortened versions of the
subdivision/subcategory descriptions are permitted so long as they can be easily understood.
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DCN PH4A019
COMMENTER Westinghouse Electric Cor
RESPONDER RC
SUBJECT CLNP ,
SUBJNUM 019
COMMENT Clean Up of Part 268 Regulations Reference: Preamble at Part
Two, Section U.B.3, page 2366 The regulatory citations in this
preamble part, specifically, Section 268.7(b)(3) and (b)(4) do
not correlate with the proposed regulation provided on page
2373. We believe the preamble should have referenced Sections
268.7(b)(4)and(b)(5). ,
RESPONSE ;
The commenter is correct. Changes have been made in the final rule.
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DCN PH4A019 t v ,
COMMENTER Westinghouse Electric Cor
RESPONDER RC ' . x
SUBJECT CLNP ....
SUBJNUM 019 ' : - .
COMMENT Proposed Reduction in Paperwork Requirements for the Land
Disposal Restrictions Program Reference: Preamble at Part Two, :
Section H.D, page 2364 We support EPA's proposal to require a
one-time-only LDR notification. The current requirement to ,
provide a notification for each shipment by a generator or .
treatment facility is unnecessarily burdensome and does not
provide commensurate protection of human health or the
environment. This change will clarify notification requirements
for generators that also treat, store, and/or dispose of their
own waste. This situation is common at many facilities <. ,
Westinghouse manages for the U.S. Department of Energy. For
example, most mixed waste is stored until appropriate treatment
becomes available. Under current regulations, LDR notifications .
are required for each on-site movement of waste. , , - '
RESPONSE
i " J ' ' '
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden oh the regulated community. .
' / ' '
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DCN PH4A031
COMMENTER Laidlaw Environmental Ser
RESPONDER RC
SUBJECT CLNP
SUBJNUM 031 ''''.
COMMENT Laidlaw strongly supports the Agency's proposals which reduce
the recordkeeping and reporting burden for complying with the
LDR requirements. 8. T Laidlaw submits for consideration two
additional changes that would ease confusion in the generator
and waste management industry's. Part268.7(a)of40CFR
contains waste analysis and recordkeeping requirements for
generators disposing of waste subject to the LDR requirements. /
Section 268.7('a)(l) contains the information required to be
included on the notification submitted to the )'SD to the TSD
facility for waste subject to the LDR requirements.
Specifically, 268.7(a)(l)(vi) requires the notice to include the
date the waste is subject to the prohibitions. The language
contained in 268.7(a)(l)(vi) was added by the Phase 11 technical
' corrections that were published on January 3,1995, on page 242,
column 3..The preamble language on this page states that
"Paragraph (vi), with the language that appeared as paragraph
(v) before the Phase 11 rule, is being, added in today's
amendments." Our research of previous versions of the LDR
.. ' requirements indicates that the language contained in . >
268.7(a)(vi) did not exist in this section prior to the Phase 11
rule. Further, this language was not included in the Phase 11
LDR proposed rule that was published on September 14,1993.
Laidlaw questions -,,he Agency's reasoning for including the
requirement to provide this information since it serves no
; apparent usefulness in complying with the LDR requirements. Over
the last year, we have received numerous inquiries from waste
generators on the reasoning for requesting this information. We
also question the legality of requiring this information since
there was no published notice of the new requirement or any
ability, to make public comment. Laidlaw recommends that the
Agency use this opportunity to drop the requirement to provide.
the information required by 268.7(a)(l)(vi). This information
serves no apparent purpose toward insuring compliance with the
LDR requirements by our TSD facilities. By dropping this
requirement, EPA will be furthering its goal of simplifying the
LDR program and reducing the recordkeeping burden of hazardous
waste generators and TSD facilities.
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RESPONSE ,
The commenter has discovered a mistake in. the regulations that is corrected in
the final rule.
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DCN PH4A032
COMMENTER .Eastman Kodak Company
RESPONDER RC -
SUBJECT CLNP . '','.
SUBJNUM 032 "
i i \ ,
COMMENT We are also strongly in favor of the proposal to reduce the
paperwork necessary for notification/certification of compliance
with the Land Disposal Restrictions (LDR). ' /
RESPONSE
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
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A DCN , PH4A032 -
-IP COMMENTER Eastman Kodak Company ^, >
RESPONDER RC
SUBJECT CLNP . * -
SUBJNUM 032 " '
. s COMMENT ... .. '. . '' . \.
Reduce LDR Paperwork for Routine Waste Streams x-
Kodak supports the Agency's
proposal .to eliminate the need for LDR ~
notifications/certifications for routine shipments .of the same
waste to the same treatment or disposal facility. Over the
years both generators and Treatment, Storage and Disposal (TSD)
. - . . facilities have learned to better understand the implications of - ~
the LDR treatment standards. Generators typically create a
:"waiste profile" for a particular waste stream .with a TSD
, facility, long before the first shipment is made. This "waste ;
profile" establishes an understanding of analytical data, waste
codes, and the applicable treatment standards. While sending a
notification/certification form with the first off-site shipment
may serve to confirm this information, subsequent copies have
little or no environmental impact (other than killing trees to . .
make the paper they are printed on). In the past these
additional copies have simply become busywbrk for the generator
and TSD facility, and have become a target for paperwork
violations of the regulations. We urge the Agency to take this
step to focus the RCRA regulations on more substantive issues
than a piece of paper, and to continue reducing the paperwork %
. burden on the regulated community. We urge you to adopt the
proposed exclusions and LDR paperwork reduction noted above as
you finalize the PhaseTV LDR rule, m addition, we urge the ' > ' .
Agency to continue work to reinvent environmental regulations by
further revising the definition of solid waste and looking for - /
other ways of eliminating unnecessary paperwork.
RESPONSE .
. The Agency appreciates your interest in, and support of our efforts to streamline
me LDR program and reduce paperwork burden on the regulated community. ,
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DCN PH4A035
COMMENTER Metals Industries Recycling
RESPONDER RC v
SUBJECT CLNP . .
SUBJNTJM 035 . -
i
COMMENT MIRC supports EPA's proposed LDR paperwork reductions.
RESPONSE
v ' '
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
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DCN PH4A035
COMMENTER Metals Industries Recycli
RESPONDER RC
SUBJECT CLNP . ,
SUBJNUM 035 . '*. ;
COMMENT . B. MIRC Supports EP A's Proposed LDR Paperwork Reductions and
Suggests a Conforming Change to the Land-applied Product
Notification Under;-EPA's current LDR program, generators of' \,. ,
hazardous wastes must determine whether the wastes meet ,
applicable treatment standards at the point of generation and,
if they do not, they must notify the treatment or storage
facility in writing Aith each shipment. 40 C.F.R. ° 268.7(a).
8.1 Similarly, RCRA treatment facilities are required to send a
notification each time they ship a waste or treatment residue to
land disposal facilities or 1@@O different treatment facilities '
- for ftifther management. Id. ° 268.7(b). As part of EP A's 25
percent recordkeeping reduction goal, EPA has proposed to change
these notification requirements to one-time notifications. NURC
strongly supports these proposed amendments to 40 C.F.R. ° 268.7
and applauds EPA for its effort to eliminate unnecessary « .
recordkeeping burdens. MIRC requests that EPA also modify in a
similar fashion the notification requirements under 40 C.F.R. °
268.7(b)(7). Under that subsection, when recyclable materials
are used in a manner constituting disposal pursuant to section
266.20(b), the recycling facility must separately submit with
', each shipment of the material a certification (section .
!68.7(b)(5)) and a notification (section 268.7(b)(4)) to the
Regional Administrator or delegate@[ representative. This.
"landapplied product" notification is identical to the Section
268.7(i))(,t) notification except that the recipient of the, .
notice is the Regional Administrator rather than a treatment or
disposal facility. See 53 Fed. Reg. 31138,31198 (Aug. 17,
,1988) (rationale foir notification). As with the section
268.7(b)(4) notification, the paperwork .burden far outweighs the
minimal benefits, if any, of requiring a recycling facility to
submit essentially the same certification and notification with .
every shipment when the nature of the material or process does
not change from shipment to shipment. Consequently, MIRC '
recommends that EPA change the,;ection 268.7(b)(7) notification
, requirement to a one-time notification similar to the proposed
, change to 40 C.F.R. 268.7(b)(4). A one-time notification
requirement for 40 C.F.R.0 268.7(b)(7) would greatly reduce the
paperwork burden for recycling facilities while satisfying EP A's .
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information needs. .
"" ' - ' . ' '--,".'
RESPONSE
The commenter's suggestion is beyond the scope of this rulemaking. It will,
however, be considered as part of efforts to further reduce paperwork in the future.
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DCN. PH4A040
COMMENTER Kennecott Energy Co.
RESPONDER RC
SUBJECT CLNP ; .,
SUBJNUM 040 ,
COMMENT b. One-time Notification [FR 2345] It appears (from the proposed
regulatory language) that EPA intends the condition related to .
onetime notification to apply whether or not there is land
placement On the other hand, the preamble says "The one-time
notification would be submitted by the operator of the .
land-based unit..." Where there is legitimate recycling with
no speculative accumulation, and no land placement to raise the : .
possibility of discard, EPA has no authority and no reason to
require any notification. If EPA nevertheless requires ,
notification, a one-time, brief submittal should be sufficient.
It is believed that, for the majority, if not all, cases, any
information provided in the notification would be available in
existing operating permits, thus of questionable value. Such a
redundant notification requirement might conflict with the
Paperwork Reduction Act. In the case of land-based units, , , ...
notification seems justified so that an agency can evaluate
whether there is discard. '
RESPONSE
. The LDR requirements for one-time notifications attach at the point of
generation of any hazardous waste destined for eventual land disposal.
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DCN PH4A040 '
COMMENTER Kennecott Energy Co. ; '
RESPONDER RC , ,
SUBJECT CLNP «
SUBJNUM 040
COMMENT II. Proposed Reduction in Paperwork Requirements for the Land
Disposal Restrictions Program A. Section 268.7 Kennecott agrees
with one-time notification of LDR forms and submittal of new
forms only when the waste stream changes. ,
RESPONSE
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
202
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I
DCN PH4A044
COMMENTER Battery Council International ,
RESPONDER NV
SUBJECT CLNP . ' . .
SUBJNUM 044 ; . - ,
COMMENT BC strongly supports the Agency's proposal to reduce
paperwork requirements under the Resource Conservation and .
Recovery Act (RCRA) Land Disposal Restrictions (LDR) program.
A one-time notification and certification requirement for
materials repeatedly shipped from BC battery manufacturing , '
plants to secondary smelters for reclamation will simplify the
tracking of these wastes and reduce paperwork burdens, while
. still ensuring consistency in waste management and allowing
proper RCRA enforcement. 1 Many BC battery manufacturers and
., secondary smelters have "tolling" arrangements,, buy-sell
agreements, or otherwise regularly do business with each other,
Under these mechanisms, the battery manufacturing plant
repeatedly ships the same type of material (and approximately
' the same volume per shipment) to the secondary smelter for
reclamation. The shipped materials include materials described
in 40 C.F.R. Part 266, Appendix XL 2 Recovered lead then is /
- either returned to the manufacturer or sold to another consumer
as a product. Recovered plastic from the batteries generally is
handled in one of two ways: either the secondary smelter
reprocesses the plastic on-site and ships the reprocessed
plastic (i.e., molding resin) to the battery manufacturer or
consumer for use in a product; or the plastic is shipped to a
plastics reprocess or (visually designated by the battery
manufacturer) to be made into molding resin and then returned to
me battery manufacturer for use in a product Under the
current RCRA regulations, the battery manufacturer (or its
shipper/agent) is to complete a separate LDR notification form
for each of these shipments, Each form contains essentially the
same information as the form sent to the smelter with the
previous shipment. Thus, the smelter is hot acquiring any new
knowledge about the shipped materials, Moreover, smelter
operations are not adjusted based on these certifications. The
forms thus serve no meaningful purpose, BC estimates that in
1995 approximately 76,000 separate shipments of lead bearing
materials were received by U ,S. secondary smelters. Under
existing rules, each of these should have been accompanied by a
LDR certificate, A one-time notification would tremendously
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s r
reduce this paperwork, eliminating the need for most of these
forms, BC thus strongly supports this proposal. I/ BC supported .
this proposed requirement during EPA's Definition of Solid
Waste Task Force Round table discussions. 2/ These include
plates and groups, grids, posts, separators, battery casings and .
certain other lead-bearing materials generated or originally
produced by the lead-acid battery manufacturing industry, '
RESPONSE
, * - i
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community^
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DCN PH4A047 ' ' '
COMMENTER Safety-Kleen Corp; ,
RESPONDED RC -
SUBJECT CLNP
SUBJNUM 047
COMMENT C. SAFETY-KLEEN HAS THE FOLLOWING ADMINISTRATIVE AND
f . . - i
, PROCEDURAL COMMENTS ON THE PROPOSED SUPPLEMENTAL PHASE IV
LDR-/: .- .,'" " . - ' ' . . . '->.'
REGULATION 8. Safety-Kleen supports the change to requiring a
one-time LDR notice to treatment and storage facilities for
wastes that do not meet the LDR treatment standards, under 40
" CFR268.7(a)(l) The EPA's proposal to require a one-time LDR
notification is a significant improvement for reducing paperwork
burdens associated with manifesting, but Safety-Kleen believes
mat mis burden could be reduced even further by eliminating
the requirement for LDR notification for any waste destined for
recycling. The LDR notification requirement should first apply
when recycling residues are transported for disposal or .
treatment. Safety-Kleen encourages and supports all
simplifications to the RCRA regulations that ease the paperwork
burden on the regulated community. Because Safety-Kleen handles
hundreds of thousands of manifests each year, each with an ,
associated LDR notification, we strongly support the Agency's
proposal to requiring only a one-time LDR notification for'
, restricted wastes that are sent to storage and treatment
facilities. The Agency's proposed conditions on the LDR .
paperwork management and updates appear to be fair and ,
achievable. The EPA appears to be making the LDR notification -
revision to the wrong section of the regulations. The preamble
states that the one-time notification will apply to wastes
"which do not meet the appropriate treatment standards, but the
composition of these wastes, or the process generating the
wastes, or the treatment facility receiving wastes does not
change..." (61 FR 2363). In the LDR regulations, 40 CFR
268.7(a)(l) applies to "... a waste [that] does not meet the
applicable treatment standards.:.... while 40 CFR 268.7(a)(2)
. applies to n... waste [that] can be land disposed without
. . further tteatment..." The preamble is clear that the one-time
, (,,. notification would apply to the former category of wastes (i.e.,
40. CFR 268.7(a)(l)). Howeyer, the proposed regulatory language"
indicates modifications to 40 CFR 268.7(a)(2). The proposed
regulatory language must be changed to modify the appropriate
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section of the rules. '
RESPONSE.
The commenter's suggestion that EPA should eliminate the requirement for
LDR notification for any waste destined for recycling is beyond the scope of this rulemaking. It
will, however, be considered as part of efforts to further reduce paperwork in the future. The
commenter's concern about the regulatory language cross-referencing the wrong paragraph must
be based on the regulatory language as it appears in the current issue of 40 CFR 268.7, rather
than on the regulatory language as rewritten and renumbered in the proposed Phase IV rule. The
Agency is finalizing the language as it was proposed, and the cross-referencing is correct based
on this regulatory language.
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DCN PH4A053 : ^ .. .
COMMENTER Inco Ltd., Internat'l Met ,
RESPONDER RC
SUBJECT CLNP .',-'.
SUBJNUM 053 . ^ ,
COMMENT We also support EPA's proposed reduction in paperwork
requirements regarding generator notifications to receiving
facilities under the Land Disposal Restrictions program but
believe a clarification is needed.
RESPONSE
''."* '- *
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
207
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DCN PH4A053
COMMENTER Inco Ltdl, Internat'l Met
RESPONDER RC
SUBJECT CLNP
- SUBJNUM 053 .
COMMENT III. EPA's Proposed Reduction in Paperwork Requirements Is
Sensible but Needs To Be Clarified. We support EPA's proposal
to allow one-time notification, rather than shipment-by-shipment
notification, when waste that does not meet applicable treatment
standards is shipped by a generator (or treatment facility) to
the same receiving facility as prior shipments of the same type
of waste, However, EPA should clarify the requirement that a new . >
notification must be sent when "the waste .. changefs]. " See
. ^ proposed Sections 268.7(a)(2). 268.7(b)(4), 61 Fed. Reg. at
2373/1. The concept of a "change in the waste" is rather vague.
An appropriate clarification might be to require a new
notification whenever a change in the waste affects the
determination of which treatment standards apply to the waste or
which treatment standards are not met by the waste as generated.
RESPONSE ". .
The Agency agrees that a new notification should be done whenever a change in
the waste affects the determination of which treatment standards apply to the waste or
which treatment standards are hot met by the waste as generated.
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DCN W4A054 \
COMMENTER RSR Corporation . '
RESPONDER RC .
SUBJECT CLNP
SUBJNUM 054 , \
COMMENT RSR strongly supports the proposed revisions to the notification . <
provisions of 40 C.F.R. Section 268.7. The proposal to require
a one-time notification and certification requirement under the '
Land Disposal Restrictions (LDR) requirements will greatly .
r ease paperwork burdens while ensuring that shipments of
secondary materials are appropriately tracked. A similar .
recordkeeping provision exists today for characteristically :
hazardous wastes that are decharacterized and shipped to RCRA
Subtitle D facilities. This proposed revision also is
consistent with EPA' s initiative to reduce by 25 percent -the
paperwork burden on the regulated community. Absent this
revision, it will be difficult for EPA to achieve its paperwork .
reduction goals. * .
RESPONSE
, '. The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
209
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DCN PH4A054 .
COMMENTER RSR Corporation
RESPONDER RC x
SUBJECT CLNP . .
SUBJNUM 054
COMMENT IE.' RSR SUPPORTS THE PROPOSED REVISIONS TO 40 C.F.R.
SECTION 268.7 RSR supports the proposed revisions to the
notification provisions of 40 C.F.R. Section 268.7. The proposal
to require a one-time notification and certification requirement
under the Land Disposal Restrictions (LDR) requirements will
. simplify paperwork burdens while ensuring that shipments of
secondary materials are appropriately tracked. The proposed
revisions will not compromise protection of human health and the
environment or enforcement of RCRA 's provisions. RSR believes
the proposed regulatory change is long overdue. Indeed, this
revision was one of the "low hanging fruit" that RSR urged EPA
to pursue in the redefinition of solid waste roundtable effort
in 1994. RSR urges EPA to act quickly on this proposed
revision and similar issues raised in the redefinition of solid
waste effort. Many battery manufacturers and secondary lead
, production facilities have so-called "tolling" arrangements,
buy-sell agreements, or otherwise regularly ship lead-bearing
materials back and forth to one another. Battery manufacturers
typically ship the same type of materials (and roughly the same
volume per shipment) to a secondary lead production facility, for .
reclamation. These shipped materials include lead-acid .
batteries, materials on 40 C.F.R. Part 266 Appendix XI, and
other lead-bearing materials. Under these arrangements, ',
secondary lead production facilities reclaim the lead and/or
, plastic from these materials. The lead and plastic is then"
either resold to the manufacturer or sold to another customer as
a product. According to data generated by the Battery Council
International (BCI), and cited in BCI 's comments on this .
proposed rulemaking, in 1995 approximately 76,000 separate
shipments of leadbearing materials were received by U.S.
secondary lead production facilities. There is little variation
in the types or quantities of these materials. The composition
of the materials, the processes generating the materials, and
the facility receiving the materials also rarely change.
Nonetheless, under the existing provisions of 40 C.F.R.
Section 268.7, each of these shipments was required to have been
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accompanied by a notification and, in some instances, a
certification. In addition, each form sent to .the secondary'
lead production facility contains the same information as the
previous form. It is not uncommon for RSR to receive
thousands of these forms every month. The forms must be
reviewed and retained by RSR personnel, even though they
provide little, if any, added protection to human'health or the
environment. A one-time notification would tremendously reduce
this paperwork and the associated burden associated with filling .
out, reviewing, and retaining the forms. In fact, by EPA 's
own estimates, the proposed revision could result in an
estimated reduction of 1 pi 9,000 hours per year'of paperwork
burden. This is equivalent to 730 employee years.. RSR
believes the .proposed changes will achieve greater reductions in .
paperwork burden than those estimated by EPA. EPA can save
industry millions of dollars that now are wasted on paperwork
requirements that, by EPA -s- own admission, can be removed
without abridging in any way protection of human health and the
environment. EPA has taken a similar approach to tracking
requirements for characteristically hazardous wastes that are :
decharacterized and shipped to RCRA Subtitle D facilities. . -
Under that provision, a one-time notice is required to be
submitted-to the EPA Regional office or authorized State agency.
The notice must be updated if the waste or process changes. To
RSR's knowledge, there have been no substantive concerns raised
with EPA regarding this existing regulatory provision. This.
proposed revision also is consistent with EPA' s initiative to
reduce by 25 percent the paperwork burden on the regulated
community and with President Clinton's report on Reinventing
Environmental Regulation. By EPA' s own admission, the LDR
program is one of the largest programs in terms of fecordkeeping
and reporting. Nowhere are EPA's paperwork reduction efforts
more sorely needed than in the LDR provisions. EPA clearly can
make significant strides towards this 25 percent reduction goal
and towards reinventing environmental regulation if it
promulgates this proposed revision. Indeed, RSR is concerned
that, absent this proposed revision, EPA will be hard pressed to
meet this goal. EPA is claiming an overall reduction of 1. 6
million hours in LDR paperwork requirements. The General
Accounting Office (GAO), however, recently testified before
Congress that this reduction is overstated. As explained by
GAO in its testimony, in 1995 EPA revised its estimate of the
.paperwork burden for the LDR program from 755,000 hours to 5,
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million hours. > The effect of this readjustment has resulted in
a mistaken, impression of the remaining , LDR paperwork burden.
As explained by GAO: The planned reduction in the paperwork
burden.of 1.6 million hours for the'land disposal restrictions
program is based on a reestimated paperwork burden of 5
million hours. Thus, it appears that about one-third of the
total burden for that program has actually been reduced, leaving
about 3.4 million hours. However, EPA will apply the 1.6
million reduction against the January 1995 baseline of 755,000
hours for the program, giving the mistaken impression that this
burden has been eliminated. Moreover, EPA estimates that, even'
with its projected decreases, EPA's overall paperwork burden
will continue to increase to about 117 million hours by the end
of fiscal year 1996 . This proposed revision thus is critical to
ensuring EPA^meets its paperwork reduction goals. RSR also, >
supports EPA 's implementation requirements associated with
this one-time notification provision. It is appropriate that a
new notice be sent to a facility if the waste changes, or the.
process changes, or the receiving treatment facility changes.
RSR also supports the proposed requirement that mandates the
receiving facility to maintain a copy of the onertime
notification. Given the tremendous potential savings in,
paperwork reduction and burdens this proposed revision offers,
and the fact that it would in no way compromise protection of
human health or the environment or EPA' s enforcement actions,
RSR sees no reason barring promulgation of this revision. RSR
strongly urges EPA to do so. RSR requests clarification on one
issue raised in the rule. In the proposal, EPA states the
following: EPA is proposing that when a treatment facility is
shipping waste or treatment residue for further management at a
land disposal facility or other treatment facility, and the
waste, treatment residue or land disposal/treatment facility
does not change, then the treatment facility will only be
required to submit a one-time notification and certification to
the receiving facility. RSR requests clarification that EPA does
not intend for the notification or certification to be sent to a
RCRA Subtitle D facility, if that type of facility is to
receive the waste, and, of course, provided the waste is no .
longer hazardous. Such a requirement would be inconsistent with
the provisions of 40 C.F.R. Section 268.9(d). For the reasons
. EPA did not require notices/certifications to be sent to
Subtitle D facilities under that provision, RSR urges EPA to
clarify that the one-time notice is not to be sent to RCRA
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Subtitle D facilities, but to EPA'Regional offices or .. v
authorized State'agencies. . . . .,
RESPONSE '.' , _''.
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork-burden on theTegulated community. A notification.
does not need to accompany wastes sent to-a RCRA Subtitle. D facility. It must, however; 'be
placed in the generator's files in compliance,with existing requirements of 268.9.
DCN PH4P008 ..''
COMMENTER. Florida DEP . ' . : . -
RESPQNDER PV -
SUBJECT- CLNP %.
SUBJNUM 008 '.'.---. . .
COMMENT, / - , .."-...' .
Pg. 43691/268. l(e)(4)(ii): This section is a proposed revision to ' . ' .
Vl the proposed rule from the March 2, 1995 Federal Register. There is . .
"" .no §268.l(e)(4)(I) that is currently effective. EPA should have - .
published the full text of the proposed changes. Waste water ' ' ,.
treatments systems can handle flows of several million gallons per ' '
day. Ten thousand gallons per. day of a characteristic waste.is not . .
ade-minimisloss. , .
RESPONSE , y .
The commenter is referring to language that was deleted from the regulations in the Phase III
final rule on April 8,1996 in response to the Land Disposal Program Flexibility Act of 1996.
This comment isi therefore, moot.
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DCN . PH4P031,
COMMENTER Department of Energy . :
RESPONDED
SUBJECT CLNP , ,
SUBJNUM- 031 ' ' , . '
COMMENT ' '. , ' - ' .."' . ,
(k) 40 CFR 268.7(b)(3) - See comment IILA, item 3.c.(l)(e) above concerning the
cross-reference in this section to 40 CFR 261.3(ej. It appears that this provision
[proposed §268.7(b)(3)] should be revised to refer to §261.3(f).
(1) 40 CFR 268.7(b), Paperwork Requirements Table (item 2)--See comment
III.A, item 3.c,(l)(h) above concerning the wording of this item. Should this item
- be modified to read, "The constituents of concern for FOO1-F005 and F039 wastes,
and underlying hazardous constituents for all characteristically hazardous wastes
(as defined by 40 CFR 261.21 - 261.24), unless the waste will be treated and
monitored for all constituents (in which case none are required to be listed)" ?
RESPONSE , . ; .
The commenter is correct that the cross-reference should be to 261.3(1). This
has been corrected in the final rule. The wording of 40 CFR 268.7(b) has been clarified as
suggested by the commenter. .
-------
DCN PH4P036... ' '
COMMENTER .American Iron & Steel Ins > . .- .
RESPONDER RC ' \
SUBJECT CLNP , - ' ,
SUBJNUM 036 . ~ ' \ '. ..
.COMMENT - : '
In one particular instance, however,-AIS.I suggests that EPA , ; ~\
streamline the regulations even further,than the Agency proposes.
' Under the existing 40 C.F.R. §.268.7(a)(4),'which would be ' : ''.'.'
redesignated 40 C.F.R. § 268.7(a)(5). under the proposed rule, . ' . .
generators treating prohibited wastes, to meet applicable treatment . '
standards, in tanks, containers, or containment buildings regulated
\ under 40 C.F.R. § 262.34 must develop and follow a waste analysis/ . . '
plan ("WAP") and submit that plan to appropriate EPA or state
regulatory authorities. In the Phase IV rule, the Agency proposes
to delete the requirement that the WAPs be submitted to. the
regulatory authorities. See 60 Fed. Reg. at 43,678. AISI supports ' ''
. this measure, but believes that the Agency should go further, and .
delete the requirement to develop and follow a WAP in the . "
first instance. The WAP requirement applies only if the generator ~" >
treats the waste to achieve the applicable LDR treatment standards.
See 55 Fed. Reg. at 22,670 ("EPA does'not believe ... that it needs ^ . _
to require waste analysis plans from 90-day generators who treat
partially, but do not treat to achieve the treatment standard."). . - ,
In such an event, however, the generator must certify that the . .
. waste is eligible for'land disposal.. See 40 C.F.R. § 268.7(a)(2). '
This certification requirement should be sufficient to ensure that
the wastes are, in fact, treated to meet applicable treatment " ; ;
standards. Accordingly, the WAP requirement is redundant and
should be deleted. ^
>, - '',-.,
RESPONSE .. - , , . '..",;
The Agency does not agree with the commenter that the WAP requirement is redundant, and is
not making uVsuggested change to the requirements.
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DGN PH4P113 . .
COMMENTER Chemical Manufacturers Assn
RESPONDER SS ,
SUBJECT MISC "
SUBJNUM 113 \ ; .
COMMENT , ; :
IV. IMPROVEMENTS TO THE EXISTING LDR PROGRAM
A. EPA SHOULD GRANT AN EXEMPTION FROM LDR REQUIREMENTS
DURING UNINTENTIONAL RELEASES OF HAZARDOUS MATERIALS.
CMA addresses here the issue of whether LDR requirements should
apply to unintentional releases of listed and characteristic
hazardous wastes. Despite best operating practices and engineering
design, there will be times when unintentional non-de minimis '
spills and emergency releases will occur. Such discharges will
trigger emergency responses that may require, for safety reasons,
the discharge of hazardous (listed or characteristic) or
decharacterized wastes into subtitle C or D surface impoundments.
. Currently 40 CFR 264. l(g)(8) and 265. l(c)(llj exempt the facility
from Part 264/265 emergency response exemptions to eliminate the
risk of a regulatory violation during the immediate response to a
threatening situation, and thus, provide the facility with the
maximum flexibility to address the situation.
CMA recommends that EPA amend 40 CFR 268.1 by adding the following
section to subsectiori(e): . ,
The following materials are not subject to any provisions of Part
268: ',..' ' .''.' ".''
(6) Hazardous wastes that are unintentionally discharged, or
materials which become hazardous waste after being unintentionally
discharged, provided that upon detection, they are promptly treated
or contained. After the immediate response is over, further . '
containment, treatment, or disposal subsequent to that performed
for emergency treatment or containment of such waste is subject to
all applicable
RESPONSE . . . , .
The comment is beyond the scope of this rulemaking. The Agency will consider this suggestion
when making regulatory changes in future rulemakings.
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.DCN ; -PH4P116 v - . -
CQMMENTER Oxychem . ' ' ,
RESPONDER RC
SUBJECT' CLNP ' ,
SUBJNUM 116 . - "' - .
COMMENT ' . . .. ' . ' ''-...
. ( Oxychem supports the "clean-up" of Pan 268 rules.
RESPONSE
The Agency acknowledges the comrhenter's support.
217.
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DCN PH4A056
COMMENTER Utility Solid Waste Activity Group x - -.
RESPONDER RC -
'SUBJECT CLNP .'-..- ' . .
SUBJNUM 056 ' ''.'. ; ' \'. '..,'.
COMMENT 'Finally, EPA has proposed a number of changes to the RCRALDR
program that US WAG supports.
RESPONSE
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
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DCN/ PH4A056 -' ' . - .
COMMENTER Utility Solid Waste Activ . , ' ?
RESPONDER RFC '"..'
SUBJECT CLNP- ..-'..,, '':'.'
SUBJNUM 056 ' . ' .
"COMMENT Vill.' USWAG Supports Simplification of.the .LDR Notification
Requirements. EPA is proposing to modify the LDR notification ' ;
requirements by allowing a one time notification for multiple
shipments-of the same waste that do not meet treatment standards
.from one generator to the same receiving facility..61 Fed. Reg.
at 2363-64,- USWAG pre yiously expressed its support for a one
time notification for wastes that meet the treatment standards
in the interests of regulatory efficiency and the elimination of '..-."
a redundant paperwork requirement. See USWAG Comments on "Land
.. Disposal Restrictions -Phase IV: Issues Associated with Clean ' ' -
Water Act Treatment Equivalency, and Treatment Standards for
Wopd Preserving Wastes and Toxicity Characteristic Metal
'. Wastes," Docket No. F-95-PH4P-FFFFF (November 20,1995). USWAG . '
' is fully supportive of both proposals, which will eliminate an
' .unnecessary regulatory burden, facilitate compliance with the
LDR requirements, and assist in the streamlining of the LDR '. .' .
program. In fact, because nearly all wastes are now subject to .
r . the LDR S,, US WAG urges the Agency to eliminate the LDR ' .
notification requirement entirely and incorporate whatever . ' , -
information the Agency believes necessary into the hazardous :
1 waste manifest. . .
RESPONSE ' -. . \ :
* * " ' _ v
The Agency appreciates your interest ,in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community. The issue of
eliminating LDR notification in favor of including the same information in the hazardous waste
manifest is outside the scope of this rule. That suggestion will be considered in the contex of
future EPA regulations. . ' '. . - , .
.219
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DCN PH4A070 .
COMMENTER FMC Corporation " . ' '
RESPONDER RC ,' .
SUBJECT CLNP . , \ '':''.
SUBJNUM 070 -..'.'
COMMENT X.' FMC Strongly Supports The Proposed Reduction In LDR '
Paperwork, FMC greatly appreciates EPA's efforts to streamline
the cumbersome and paper-intensive Land Disposal Restrictions
recordkeeping and reporting requirements and strongly supports
the proposed paperwork reductions. 71 FMC agrees that there, will
be significant cost and manpower savings directly attributable ' "
to the proposed paperwork reductions. One time notifications
instead of notices with each shipment will be a significant . . ,
reduction in paperwork without any reduction in protection of
human health and the environment.
RESPONSE ' - ;
The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated.community;
220
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221
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DCN 'PH4A084 . - ' . .
COMMENTER Chemical Manufacturers As
RESPONDER RC . -. .
.SUBJECT CLNP . '.
SUBJNUM 084 .
COMMENT CMA strongly supports the proposed reduction in LDR paperwork
CMA greatly appreciates EPA's efforts to streamline the ".'.
cumbersome and paper intensive Land Disposal Restrictions record
keeping and reporting requirements and strongly supports the
proposed paperwork reductions. CMA agrees that there will be
significant cost and manpower savings directly attributable to . /
the proposed paperwork reductions. One time notifications
instead of notices with,each shipment will be a significant
reduction in paperwork without any reduction in protection of
human health and the environment.
RESPONSE' ..',.'
. The Agency appreciates your interest in, and support of our efforts to streamline
the LDR program and reduce paperwork burden on the regulated community.
222'
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DCN . PH4P034 , . - . '
COMMENTER CMA OIC Task Force ' ... . " .
RESPONDER PMG ' .
SUBJECT :CLNP. , ' . , -
SUBJNUM 034' '( . . ' ' ' ,
COMMENT . ''.'".> - '-'
Retain existing regulation that exempts listed hazardous
wastes from treatment standards applicable to characteristic wastes
when the listed waste's treatment standards already address the
hazardous constituents atissue. . . .
RESPONSE
Section 268.9(b) is retained unchanged in the regulations.
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DCN PH4P034 - ' . ' % «' .
COMMENTER CMA UIC Task Force
, RESPONDER PMC . . . .
SUBJECT CLNP. . .".,-.'.' . ' "
SUBJNUM 034 , . ' . ' ' '- ' ' . -
' COMMENT ' - ' . , ; ' ' '
L Further modify the de minimis wastewater exemption to assure that
analytical costs for compliance are reasonable and clarify that
this exemption is applicable to all Class I wells, not just to . , .
those injecting nonhazardous wastes. . - '
RESPONSE - ' '
In the Phase III Withdrawal Rule published April 8, 1996, a typographical error
occurred which indicated that the Agency was withdrawing 268.1(e)-Treferring to de minimis
losses in generalrather than 268.1 (e)(4)(ii)~referring to the de minimis losses provision that
applied only to underground injection wells injecting decharacterized wastes.j'therefore, in the
% Phase IV final rule the Agency is clarifying that the general de minimis provision of 268.1 (e)
remains in the regulations and applies to characteristic wastes rather than products or
intermediates. No further modification is b.eing made to the provision because the need for such
modification has not been demonstrated. This exemption applies to losses of characteristic .
wastesto wastewater treatment systems. > \ , . . - 1
224
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DCN PH4P020 . " , ,-'-.'
COMMENTER Exxon
RESPONDER PMC . . ." -
SUBJECT CLNP ; .
SUBJNUM 020 '
.COMMENT . . ' . . ' .
D. be Minimis exemptions for'characteristic wastewaters should
be expanded ' : . :
To avoid1 triggering extensive requirements for low risk
facilities, EPA should adopt a deminimis exemption for
characteristic wastewaters. This exemption should be in the form
of a headworks-type exclusion for characteristic wastewaters whose
volume comprises lessthan 1% of the total flow sent to CWA
systems.. The condition that UHCs not exceed ten times the UTS
levels should.be dropped from the Phase IV LDR proposal since the
total volume of the streams is so small that the relationship
between the UHC level and the UTS level is unimportant. This new
exemption would recognize the minimal risk to health and the
environment from de minimis streams and not mandate unnecessary'
investment. ."'
RESPONSE . ' ' . ' ' .-'
In the Phase IV final rule the Agency is clarifying that the general de minirnjs
provision of 268.1 (e) remains in the regulations and applies to characteristic wastes rather than
products or intermediates. No further modification is being made to the provision because the -
need for .such expansion has not been demonstrated. This exemption applies to losses of
characteristic wastes to wastewater treatment systems. ;
It is possible mat the commenter is writmg this in the context of regulations
proposed for the Phase lit and Phase IV rules that would have applied to wastewaters managed in
Clean Water Act (CWA) and CWA-equivalent wastewater treatment systems and Class I
nonhazardous waste wells. The proposed regulations (including a special de minimis provision
for such facilities) were made moot by the Land Disposal Program Flexibility Act of 1996, as
explained in the withdrawal rule on April 8,1996(61 FR 15660). ,
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DCN PH4P059 ,
COMMENTER Exxon Chemicals Americas
RESPONDER PMC . . .
SUBJECT CLNP v . . ^
SUBJNUM 059 '. - . , - ' '
COMMENT - , ' -
4. De Minimis Exemptions: ECA Recommends Modifications to the De
. Minimis Exemption Proposed for Wastewaters in CWA Systems
To avoid requiring facilities to develop extensive procedures and
' implement capital investments that are not warranted by the low
risks being addressed by the proposed LDRPhase III and IV rules,
. EPA should ensure that de minimis provisions are
adequately efined. The first step EPA should take is to ensure
that the provision on de minimis losses of characteristic wastes to
wastewaters which was included in the proposed LDR Phase III rule
is maintained (60 FR 11740; 268.1 (e)(4)(I)). This provision .-
indicates that these de minimis losses are not subject to any '
.. provision of part 268. The provision referenced is for de minimis
losses of characteristic wastes to wastewaters that are defined
as: -/
"losses from normal material handling operations (e.g. spills from '
the unloading or transferof materials from bins or other '
containers, leaks from pipes, valves or other devices used
totransfer materials); minor leaks of process equipment, storage
tanks or containers; leaks from well-maintained pump packings and ,
seals; sample purgings; .and relief device discharges;discharges
from safety showers and rinsing and cleaning of personal safety
equipment; 'rinsate from empty containers or from containers that
are rendered empty by that rinsing; and laboratory wastes not
exceeding one per cent of me flow of wastewater into the
facility's headworks on an annual basis."
An example of why this de minimis exemption is important is -
illustrated by one of EC A's plastics plants. This facility has
three surface impoundments in a CWA system that receive streams
- such as cooling water, clean condensates, and stormwater. Because
. of the nature of these streams, there is no need for biological
treatment Current facilities allow for the capture of any residual
plastic pellets that may be discharged and provide hold-up time
prior to discharge (which would allow for hydrocarbon recovery in
case of a spill). Within the process there is a steam that is 30%
methanol and 70% water. Any drop from this stream would, at the
point just before it enters the wastewater system, be a D001
226
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stream and would exceed 10 times UTS for fnethanol even though it
was just a drop. .There is always the potential that a pump leak
could result in some drops of this material entering the
sewer system leading to the impoundments. Without the de minimis
clause outlined above, and with a narrow point of generation - . ~
definition, it would be possible that the LDR Phase IV rule could
trigger extensive requirements on the surface impoundments (which '
would presumablybe called pre-bio since there is no significant '
'biological treatment).for only a few drops of material. ' '
In addition to the example provided above, some facilities may ',
have minor streams, either continuous or intermittent, that'do not'
meet the definition of de minimis losses indicated above. Again, to ,
avoid triggering extensive requirements for low risk facilities, ' -
EPA should add a second de minimis exemption for characteristic
wastes. This exemption should be based on the. condition that the ' .
total volume of the characteristic waste sent to the CWAsystem is ,
. less than 1% of me total flow at the headworks of the wastewater »
surfaceimpoundment. There should be no condition that underlying.
hazardous constituents (UHC) not exceed 10 times UTS, since the -.
total .volume of the streams is so small and the effort to quantify .
. UHC for smairstreams can be a substantial burden. In addition to
the sampling and analytical costs, the cost of establishing v
- sampling points in hard-piped systems can be'very expensive. These
costs, in addition to the costs associated with any additional ,
treatment'or surface impoundment modifications that might be
' required, would be disproportionate to any potential environmental
benefit that could be achieved. It is important that EPA .
maintain focus on significant risk areas, versus overly regulating . ,
low/no risk cases, where costs farexceed any slight benefit. ' .
RESPONSE
In the Phase IV final rule the Agency is clarifying that the general de minimis
provision of 268.1 (e) remains in the.regulations and applies to characteristic wastes rather.than "
products or intermediates. No further modification is being made to the provision because the
need for such expansion has not been demonstrated. This exemption applies to losses of
characteristic wastes to, wastewater treatment systems. v
It is possible that the cornmenter is writing this in the context of regulations ,
proposed for the Phase III and Phase IV rules that would have applieH to wastewaters managed in
Clean Water Act (CWA) and CWA-equivalent wastewater treatment systems and Class I
nonhazardous waste wells. The proposed regulations (including a special de minimis provision
for such facilities) were made moot by the Land Disposal Program Flexibility'Act of 1996, as
..explained in the withdrawal rule on April 8, 1996(61 FR 15660). .
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228
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,DCN . PH4P008 , . . -
COMMENTER Florida DEP
RESPONDER PMC
SUBJECT . EQITVV ' ' " ! .- ,
SUBJNUM '008
COMMENT ' ' - .'. '
s The preamble only discusses surface impoundments: There is no
discussion of other land disposal units such as spray fields or
innovative treatment units such as created wetlands. Are artificial
^ wetlands equivalent to waters of the United States or to surface ,
impoundments? Where is the point of compliance'with such units? Are
septic tanks (Class V injection wells)considered.CWA equivalent
zero discharge treatment? EPA only addressed Class I
injection wells in the Phase III proposal.
I believe EPA has underestimated the
number of facilities managing decharacterized wastes in C WA land ,
disposal systems. In addition, the number of these facilities that
also have RCRA permits has been grossly overestimated. (42%pg.
43659) In most cases the "decharacterization" takes place within
the pretreatment tanks, not before the waste is placed in the
- system. .What management standards will apply to facilities that
have hazardous constituents in their waste water that are not
derived fronV'decharacterized" sources?
EPA need to add a discussion clarifying the relationship between
§262.10 (b) and §261.5 (c).For example, Alcoa, a large quantity
generator in Polk County Florida manufactures alumina out of a
byproduct of phosphate manufacture. The waste water from this
process is both corrosive and toxic due to arsenic. The waste water
is discharged to a treatment tank system where it is batch treated
with lime, which neutralizes the water and binds the arsenic so
that the waste is no longer TC toxic when discharged to a surface
impoundment. The waste water is not stored prior to treatment. It
is stored briefly after treatment long enough for effluent testing
purposes^ LDRs do not appear to apply to this waste because it is /
not accumulated per§262.34 prior to treatment. The site has
arsenic contaminated ground water in excess of drinking water
standards.
This proposal does not discuss WWTUs that have eliminated the
discharge of waste water We have 2 enforcement cases in Florida
'that involve large petroleum terminals that have permitted spray
evaporation systems for handling storm water and (DOO1 /DO 18)
, \ petroleum contact water. The contact water passes through a simple
oil/water separator, supposedly removing the ignitability
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characteristic, prior to being diluted with storm water. Is this
system treating aDOOl waste or recycling a D001 waste and treating
a DO 18 residual? At Chevron hi Tarnpa, the diluted waste is sprayed
on top of a large tank which has been painted black
for evaporation. No secondary containment is provided. Qverspray
has been seen to occur, but it, evaporates prior to hitting the
ground. Amerada Hess in Jacksonville has a similar system, except
that the tank containing the spray heads is a concrete sump. Soils
around the sump are visibly stained from overspray. These systems
are NPDES permitted zero discharge units. On at least one occasion
in the last year, water collected from the sprayhead at the
Chevron terminal in Tampa was still DO18 waste. Amerada Hess has
not tested their waste yet. Does the treatment standard apply at
the sprayhead or at the point the spray reaches the ground? If
it applies at the ground,'there is no approved method to collect a
sample of the effluent for volatile of ganic.compound analysis.
Pg. 43673 Are sludges generated in up line pretreatment tanks and
sumps going to be subject to the same standards as the proposed
, management standards for sludges removed from prebiological
surface impoundments?
The present definition of "sludge" is insufficient to distinguish
it from "waste water." We have chronic problems with septage
. haulers who pump out waste water holding tanks for land application
without regard to whether the tank holds sewage or industrial
waste water. Several years ago EPA signed a national consent order
with several major petroleum companies overdischarging floor wash
water contaminated with hazardous waste to septic tanks. Not all
the waste percolated into the ground. These tanks are periodically .
emptied of dirt and sludge by septic haulers. The sludges and waste
waters are sometimes taken to a POTW, and sometime they are land
applied after treatment to raise the pH above 12 for 2 hours.
EPA should redefine some of the wastewater and sludge listings to
clarify RCRA applicability, especially if standards are adopted
that differentiate between primary, secondary and,
tertiary treatment. Otherwise the sludges from secondary treatment
(as you define it) of electroplating waste waters might not be
' considered to be listed if the sludge is not ' / ,
characteristically hazardous. That would not accord with EPA's
. traditional interpretation!
RESPONSE .
'
'.'.' -.' 230
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In the August 22, 1995 Phase IV proposal, EPA discussed three options.for ensuring that
underlying hazardous-constituents in decharacterized. wastes'were not'released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
. a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not J
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
. in a unit that is regulated by the Clean Water-Act or, for underground-injection wells, the Safe
Drinking Water Act. ' . ' . ' - ' ""
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such'
.regulation. . . . '
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DCN PH4P015
COMMENTER BPOil
RESPONDER PMC :
SUBJECT EQUV ; ,
SUBJNUM 015 , , '
COMMENT _ ' '
An exemption from Phase III/IV LDR requirements is critically
needed for wet.weatherflow stormwater impoundments.
BP Oil has submitted previous comments on this issue in the Phase
. Ill Land Disposal Restriction (LDR) rulemaking (Comments to Docket
No, F-95-PH3P-FFFFF, dated April 28,1995) and is repeating them
because of the critical nature of this issue for our facilities.
BP Oil currently has a wet weather flow stormwater pond at each of
its two Midwestern refineries. These refineries, typical for
facilities of their age, have "combined" sewers which receive
stormwater combined with decharacterized process water during
major storm events. We recently constructed large-capacity tanks to
replace other surface impoundments at the refineries in order to
meet primary sludge, Toxicity Characteristic (TC) waste, and
Benzene Waste NESHAP requirements. The remaining combined-flow
stormwater impoundments receive wet weather flow during major storm
events only and are used infrequently. The replacement tank
capacity precedes the impoundments. The impoundments receive flow
only during storm events; therefore, they are not primary sludge
(F037/F038) impoundments. The influent to the impoundments is not
TC waste; the water and the sludges in the impoundments are not TC
wastes.
> At both refineries, any stormwater entering the impoundments is
transferred to the aggressive biological treatment system for
, treatment prior to discharge. The transfer is made as soon as flow
conditions permit, since water levels in the impoundments are kept
low to provide needed capacity for the next storm event
It makes little common sense to spend tens of millions of dollars
to construct tanks to replace these impoundments that are used
approximately once or twice per year and that represent very low
- risk to the environment. Space constraints for construction of
additional tanks would be an issue at our refineries as well .as the
cost and problems of pumping the significant quantities
of stormwater which must be managed during a storm event if a
gravity-flow sewer system cannot be utilized. The cost of
installing segregated sewer systems at these refineries
is prohibitive. The existing stormwater impoundments provide needed i
flexibility for handling stormwater flows in a cost-effective
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. manner. Therefore, EPA should exempt wet weather flow impoundments
from the Phase III and Phase IV rules because of the very low , ,
risks associated with these facilities and the very high costs of
alternative means of stormwater management. .
BP Oil supports proposed Option 1 - ho additional requirements for
non-hazardous surface impoundments under the Phase IV rules.
The court's opinion (Chemical Waste Management, Inc. v. EPA, '
976F.2d.2 (D.C. Cir. 1992),cert. denied 113 S. Ct. 1961(1993))
clearly indicates that Clean Water Act (CWA)nonhazardous surface
impoundments can continue to be used to receive and
treat decharacterized wastewater, provided that the waste is
treated to RCRA standards. The court did not address .potential
risks associated with the impoundments themselves and assumed
that they would continue to be used for treating decharacterized
wastewater. . . - ' .
The proposed Phase III LDR rulemaking requirements would require
that wastewaters meet Universal Treatment Standard (UTS) levels at
the NPDES discharge point of the CWA system. This requirement is
sufficient to meet the findings of the court, and no additional
requirements addressing leaks, air emissions, and sludges for these
, non-hazardous impoundments are needed in the Phase IV rulemaking.
Further, as we have supported in previous comments, we urge EPA to
determine in the Phase III rulemaking that aggressive biological
treatment (ABT) is the BDAT standard for decharacterized petroleum
refinery wastewaters.
BP Oil agrees with EPA that proposed Option 3 is not legally or
technically justified and that die costs of this option would far
exceed benefits. . ' '.
If Option 2 is selected in spite of the persuasive arguments for
Option 1, BP Oil agrees with EPA that the rule should not address
leak and sludge issues for biological and postbiological units.
The activated sludge in aggressive biological treatment (ABT)
impoundments is non-hazardous and meets Universal Treatment
Standards (UTS). The American Petroleum Institute (API)submitted
data hi the Phase III rulemaking which demonstrate that these
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levels are being met for organic constituents in petroleum refinery '
wastewaters and will be submitting additional data in Phase IV
comments. In our comments on the Phase III rulemaking, BP Oil
submitted toxicity Characteristic Leaching Procedure (TGLP) data on
the activated sludge in the ABT impoundment at one of our
refineries demonstrating that TCLP metal concentrations are
less than UTS levels. -
The influent water to biological and post-biological units is not
hazardous, and the contents, both sludge and water, are not '
hazardous. ABT systems are well-mixed in order that biodegradatipn
can take place. The concentration of constituents is consistent
throughout the impoundment and generally represents effluent
concentrations^ e.g. levels less than UTS levels. Therefore, we.
agree with the Agency that the Phase IV rule need not address
sludge and leak issues for biological and post-biological units.
Under Option 2 compliance with existing Clean Air Act (Benzene
Waste NESHAP and Refinery MACT) requirements which are applicable
to petroleum refineries should fulfill Phase IV air emission
control requirements for refinery CWA non-hazardous surface
impoundments.
Clean Air Act (CAA) requirements such as the Benzene Waste NESHAP
(40CFR Part 61 ,Subpart FF), the New Source Performance Standards
(NSPS) for Petroleum Refinery Wastewater (40CFR Part 60, Subpart _
QQQ), and the pending Refinery MACT requirements(59FR 36130, July
14,1994) are applicable to non-hazardous surface impoundments
at petroleum refineries, and duplicative air emission requirements
under the RCRA program are unnecessary. The Agency should defer to
the CAA regulations rather than issue overlapping rules under the
RCRA regulatory program. The Agency should also make clear that if
a refinery or facility is meeting requirements under a CAA
standard, such as Benzene Waste NESHAP, the refinery is not subject
to proposed requirements under Option 2, even if individual units
are not required to be controlled by the CAA requirements or if
the facility itself falls below the triggering levels of the CAA
standard. We have submitted similar comments on this issue to the
Agency concerning potential revisions to the Subpart CC '
rules(Docket No. F-95-CE3A-FFFFF, BP Oil comments dated October
10,1995).
As a general comment, the expansion of the RCRA regulatory program
to include air emission requirements has become very, complex since
the existing and potential RCRA air emission requirements overlap
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with existing .CAA requirements. As we have commented previously;
air emissions are best regulated under CAA programs. If air .
emissions from hazardous waste treatment, storage, and disposal
facilities are a threat to human health and the environment,
the section 3004(n) provisions of RCRA are best addressed in CAA:
. programs. We have now come to a situation- where hazardous waste
regulations are proposed to be applicable to nonhazardous wastes
and facilities. Air emission requirements designed for ';
permitted hazardous waste units (which are not applicable to
non-hazardous facilities or wastewater treatment facilities under .
current Subpart CC rules) are now proposedto be applicable
to non-hazardous wastes managed in some CWA treatment facilities,
. e.g. non-hazardous surface impoundments. This makes no common
sense. The very Ipw risks to human health and the environment
represented by this rulemaking do hot warrant the complexity that
has developed,. . ' / . .
RESPONSE , :' '
.In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that '
underlying hazardous constituents in decharacterized wastes were not released to. the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996^ EPA withdrew its treatment standards for these wastes (61 -FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes hi today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe .
Drinking Water Act. . ~
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year, study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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DCN , PH4P015 v . . '
COMMENTER BPOil , - %
RESPONDER SS
SUBJECT = EQUV
SUBJNUM .015 '.-;'' ' , . '
COMMENT -
We support the concept of multi-unit groundwater monitoring and
self-implementation by facilities subject to groundwater monitoring
and corrective action under Phase IV requirements.
Preamble language (60 FR 43760) notes that under the municipal
solid waste landfill regulations, section 258.5 l(b) allows approval .
of a multi-unit groundwater monitoring system rather than requiring .
separate groundwater monitoring systems for each unit and that
. multi-unit monitoring may be protective and less expensive to
install and monitor for non-hazardous surface impoundments. BP Oil
strongly supports such provisions.
Groundwater monitoring must be conducted under a number of RCRA
program requirements including those for permitted and interim
status units, .post-closure requirements, and under RCRA corrective
action requirements. Non-hazardous surface impoundments are
classified as solid waste management units (S WMU's) under the
corrective action program, and groundwater monitoring will likely
be required for many of these units. In addition, state regulatory
requirements may already require groundwater monitoring of
non-hazardous impoundments.
The1 addition of more groundwater monitoring requirements under the
Phase IV LDR rulemaking is unnecessary. The duplicative and ~
overlapping 'requirements have already become technically difficult ,
and very costly. For example, at one of our refineries we
consistently obtain groundwater monitoring data showing low and . . .
"non-detect" levels of constituents for certain monitoring wells.
The data continues to be obtained and reported to authorities
quarter after quarter at substantial sampling and analytical costs
with little apparent benefit or use. We are working to obtain,
relief for this situation under current requirements. Adding .
., additional groundwater monitoring requirements in the Phase IV
rulemaking only compounds the problem. Site-specific, .
technically-sound, cost-effective methods of obtaining needed
data should be allowable, and multi-unit groundwater monitoring is
an example of the flexible approach which is needed.
i ' \ ' / .
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
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underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land'Disposal Program' Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate'provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by'the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .' . ; ' "
' ' ' ' ' - ' . > '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The. findings of this study, begun by,the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ' *
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DCN PH4P017
COMMENTER Kodak
RESPONDER PMC '',' ,' :
SUBJECT EQUV .
SUBJNUM 017 ,
COMMENT Kodak also has two other recommendations. We support EPA's .
reasoning that new regulation of surface impoundments is not
necessary because threats to human health and the environment are
already adequately minimized.
"\
Existing Regulations Adequately Minimize Threat from Releases from
Surface impoundments. . ,
EPA has proposed three options for minimizing threat from releases
from surfaceimpoundments. We believe that current regulations
already adequately minimize threat, so that Option 1 is the best
choice and no additional regulations are needed. Mike
.Shapiro, Director of EPA's Office of Solid Waste, testified before
the House Subcommittee on Commerce, Trade and Hazardous Materials,
that the risks from the wastes regulated under the Phase III and
Phase IV rules, "are small relative to the risks presented by
other environmental conditions or situations . . .,"
' . indicating that EPA does hot feel there are significant risks
associated with the surface impoundments regulated under this
rule. '.'".'
RCRA § 1006 states, "Nothing in this Act shall be construed to
apply to . . . any activity or substance which is subject to
the Federal Water Pollution Control Act,. . .except to the
extent that such application (or regulation) is not inconsistent
with the requirements of such Acts." In the decision of the
District of Columbia Circuit in chemical Waste Management v. EPA
(the case requiring the promulgation of this rule)the court
recognized that RCRA requires accommodation with the Clean Water
^ Act(CWA) "to the maximum extent practicable." 976 F.2d at 23.
Since .Option 1 meets the minimize threat standard in RCRA §
3004(m), and it allows surface impoundments to continue to be .
regulated exclusively by the CWA, it is the best accommodation
with the CWA.
238 -
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239'
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.Option! creates a whole new set of standards that may duplicate
or even contradict other regulations. Air regulations that will
cover surface impoundments are being set under the Clean Air Act
(GAA). This includes New Source Performance Standards(NSPSs),
National Emissions Standards for hazardous Air Pollutants
(NESHAPs) (Part61), and Maximum Achievable Control Technology
(MACT) standards (Part 63), as wells federally approved state
Hazardous Air Pollutant (HAP) programs and State Implementation
Plans (SIPs) that address Volatile Organic Compounds (VOCs).
Other potential releases are also controlled. For example at
Kodak's surface impoundment in Colorado, the surface water ,
discharges are regulated under the CWA, the sludge from ,
the impoundment requires a state beneficial use permit for land
application, and .the surfaceimpoundments have double wall liners
with leak detection, and groundwater monitoring. Additionally,
sludge from a non-hazardous surface impoundment would be regulated
as a hazardous waste if it has hazardous characteristics, because
the sludge is considered a new point of generation for listing .
determinations. If EPA promulgates any standards for surface
impoundments as proposed in Option 2,' we believe they should only
apply in cases where there are no other federal or state standards.
This would .avoid duplicative recordkeeping and reporting and the
potential for compliance with two standards that are inconsistent.
We oppose Option 3 that requires treatment of all Underlying
Hazardous Constituents.before entering the surface impoundment as
excessive. As long as the treatment in the surface impoundment
adequately minimizes threat, treatment before entering the
surface impoundment is not necessary.
Recommendations . , '
Because Option 1 is the least burdensome way to minimize threat
from surface impoundment releases and the best accommodation with ,
the CWA, Kodak recommends that EPA choose Option 1.
RESPONSE: .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that.
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
.wastes are wastes which initially exhibited a hazardous characteristic of ignilability, corrosivity,
240
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reactivity, or toxicity when generated but are no longer characteristic): On March 16,1996, the
. President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no .longer prohibited from land disposal once rendered nonhazardous. As .
, a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660)!
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges,' and air
emissions from surface impoundments (EPA proposed options on August 22; 1995 (60 FR
43655-43677)). Furthermore, the treatment'standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
'. ' ' - " ' " ' "; '. " .'.--. ..
However, the Land Disposal Flexibility Act does mandate EPA to undertake a'5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments.' The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would wan-ant such .
regulation. ?,-', ' ' ' '
241'
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DCN : PH4P018 .
COMMENTER Mobil Oil ':..'
RESPONDER SS .
SUBJECT EQUV ' ,
SUBJNUM 018; ' \ ' ' . ' ' -,
COMMENT ' - :
EPA Should Forgo the Phase IV Rulemaking in its Entirety
In the preamble to the March 2,1995 Phase III LDR proposal, EPA
stated "...the Agency is required to set treatment standards for . ,
these relatively low risk wastes and disposal practices during the
next two years, although there are other actions and projects with
which the Agency, could provide greater protection of human health
and the environment" and "In a time of limited resources, common
sense dictates that we deal with higher risk activities first...",
60 Fed. Reg. 11704, col. 2. Moreover, in .the President's April 16,
1995 Reinventing Environmental Regulation announcement, the
Administration made a commitment to "refocus RCRA on high risk
waste." ..'
While Mobil understands that the Agency is bound by the schedule
it agreed to in settlement of EOF v. Reilly, and as modified by, the
decision in Chemical Waste Management v. EPA, it is equally clear
that the Agency retains considerable discretion in how it
implements these requirements. In particular, nothing in the
Chemical Waste Management v. EPA decision requires that the Agency
promulgate standards for non-hazardous surface impoundments.
Mobil urges EPA to forego the Phase IV rulemaking in its entirety ,
(Option 1 of the Phase IV proposal) and rely on "other Agency
programs to address these releases under current rules or future
efforts."60 FR 43659, col. 2.
Moreover, the Agency's objectives established for RCRA "Rifleshot"
legislation, which would preclude the need to promulgate either the
Phase III or Phase IV regulations, clearly indicate that the Agency
is concerned that going beyond Option 1 would essentially subject
these types of facilities to excessive and unnecessary regulation.
At a minimum, EPA should make the land disposal restrictions in
both Phases III and IV consistent with the environmental
significance of the very limited risks associated with
these activities, taking into consideration the potential high
costs that could be involved. We certainly '
concur with EPA that we are. "in a time of limited resources" and
Common Sense dictates that we apply those resources where they will
achieve the most benefit. The adoption of Option 1 would signify
Common Sense. .
242.
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:RESPONSE: . . .
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying,hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems.
regulated by the Clean Water,Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
'wastes are wastes which initially exhibited a hazardous characteristic of ignitabiiity, corrosivity,.
reactivity, or toxicity when generated but are no longer characteristic). On,March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited, from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). .Furthermore, the treatment standards for TC metal wastes in today's rule do not
, apply to TC metal wastes if the characteristic is removed and the wastes are'subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ' . . '
> . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks ppsed.by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.'
243
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DCN PH4P018 , ,
COMMENTER Mobil Oil' '....- . .
RESPONDER SS '
SUBJECT EQUV . ,
SUBJNUM 018 . ,. , ' ' '
COMMENT . . . ',.-,. ' - ''.-- ' ;. .
Mobil facilities routinely manage 'waste waters that EPA describes ; *
as formerly hazardous, decharacterized wastewaters in CWA treatment
systems, some of which have land based treatment units. Thus,
Mobil has a significant interest in how EPA promulgates land
disposal restrictions governing the management/treatment of such ' .
wastewaters. , '
. EPA SHOULD FORGO THE PHASE IV RULEMAKING IN ITS ENTIRETY Mobil
noted with interest EPA's comments in the Phase HI preamble that
stated "...the Agency is required to set treatment standards for
these relatively low risk wastes and disposal practices during the
next two years, although there are other actions and projects with
which the Agency could provide greater protection of human health
and the environment" and "In a time of limited resources, common
sense dictates that we deal with higher risk activities first...",
60 Fed. Reg. 1 1704, col. 2. Moreover; in the President's April 16,
1995 Reinventing Environmental Regulation announcement, the .
Administration made a commitment to "refocus RCRA on high risk .
waste."While Mobil understands that the Agency is bound by the
schedule it agreed to in settlement of EDF v. ,Reilly, and as .
modified by the decision in Chemical Waste Management v. EPA, it
is equally clear that the Agency retains considerable discretion in
how it implements these requirements. In particular, nothing in
the Chemical Waste Management v. EPA decision requires that the
Agency promulgate standards for non-hazardous surface
impoundments. Mobil urges EPA to forego the Phase IV rulemaking
in its entirety (Option 1 of the Phase IV proposal) and rely on .
"other Agency programs to address these releases under current
rules or future efforts."60 FR 43659, col. 2. . . ,
-Moreover, the Agency's objectives established for RCRA "Rifleshot"
legislation, which would preclude the need to promulgate either the
Phase III or Phase IV regulations, clearly indicate that the Agency
is concerned that going beyond Option 1 would essentially subject .. ,
these types of facilities to excessive .and unnecessary regulation. ' ,
At a minimum, EPA should make the land disposal restrictions in
both Phases III and IV CONSISTENT with the environmental
significance of the very limited risks associated with
these activities, taking into consideration the potential high '
244
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' - r
costs that could be involved. We certainly
concur with EPA that we are "in a time of limited resources" and
Common Sense dictates that we apply those resources where they will
achieve the most benefit. The adoption of Option 1 would signify
Common Sense. ' < .
f ' \ , '
RESPONSE:' . . . ' - . _ > . . . :
In the proposed Phase IV rulemaking, published on August 22,1996, EPA discussed three
options for ensuring that underlying hazardous constituents in decharacterized wastes were not
released to the environment via leaks, sludges, and air emissions from surface impoundments (60
FR 43655). As discussed in the April 8,1996 partial withdrawal notice to the LDR Phase III
final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by the
President on March 26,1996, provides that decharacterized wastewaters that are managed in
surface impoundments regulated under the Clean Water Act (CWA) or CWA -equivalent systems
are.no longer prohibited from land disposal once rendered non-hazardous. The wastes addressed
by the August 22, 1995 proposed rule (60 FR 43654), which are decharacterized before they
enter impoundments, are no longer prohibited wastes under RCRA. Therefore, any cross-media
transfer of hazardous constituents cannot be regulated under RCRA. For these reasons, the
Agency is not finalizing any of the options discussed in Section I of the August 22,1995
proposed rule. . . ' . , '',
245
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DCN .- PH4P018 -, ..-.-.
COMMENTER Mobil Oil . -
RESPONDER SS : .','"''
SUBJECT EQUV
SUBJNUM 018.. ; ; -.'- <
COMMENT ,
In addition, the EPA Office of Solid Waste, in its recent proposal
regarding listing determinations for refining residuals, indicated
that air exposure pathways were not modeled for residuals entering
the refinery wastewater treatment system because "the Benzene
NESHAP (55 FR 8292, March 7,1990) [OSW probably intended to cite
the Benzene Waste NESHAP which was modified and promulgated in its ,
final form on January 7,1993, rather than the Benzene NESHAP that
covered benzene transfer operations] and the MACT standards (60 FR
43244, August 18,1995) for volatile organics emissions were .,
considered to be the pertinent regulatory mechanisms for potential
air emission sources." Thus, in the current LDR Phase IV
rulemaking, also under RCRA/OSW jurisdiction, the Agency should not
: find a need for any additional regulation of air emissions from . :
land based refinery ABT units or other refinery wastewater surface
impoundments. , . '-.'
^
RESPONSE: ' . ;. "
In the, proposed Phase IV rulemaking, published on August 22,1996, EPA discussed three
options for ensuring that underlying hazardous constituents in decharacterized wastes were not
released to the environment via leaks, sludges, and air emissions from surface impoundments (60
FR 43655). As discussed in the April 8,1996 partial withdrawal notice to the LDR Phase III
final rule (61 FR 15660), the Land Disposal Program Flexibility Act of 1996, signed by the
President on March 26,1996, provides that decharacterized wastewaters that are managed in
surface impoundments regulated under the Clean Water Act (CWA) or CWA-equivalent systems
are no longer prohibited from land disposal once rendered non-hazardous. The wastes addressed
by the August 22,1995 proposed rule (60 FR 43654), which are decharacterized before they
enter impoundments, are no longer prohibited wastes under RCRA. Therefore, any cross-media
transfer of hazardous constituents cannot be regulated under RCRA. For these reasons, the
Agency is not finalizing any of the options discussed in Section I of the August 22, 1995
proposed rule.
246
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DCN PH4P018 -'
COMMENTER, Mobil Oil ,
RESPONDER PMC
SUBJECT EQUV ' .
SUBJNUM 018 ','"
COMMENT . ... , --.'.-
EPA Should Exempt Refinery Wet Weather Flow Impoundments .from both
Phase III and Phase IV LDRs . , ,
During storm events, combined refinery process wastewater and
stormwater runoff above the capacity of the refinery wastewater
treatment plant must be contained for later treatment during dry .
weather when there is excess wastewater treatment capacity. This
. process is necessary to avoid overwhelming the wastewater treatment
plant.during a storm event, resulting in inadequate oil recovery
and biological treatment, with consequent possible failure to meet
NPDES discharge limits. Many refineries, particularly those that
are older, larger and/or in geographical regions which receive high
average rainfalls, utilize land based impoundments to provide
containment for wet weather flow. Land based wet weather flow
impoundments are inherently low risk because:
They only receive and contain wet weather flow during a storm ' -
event and the subsequent period required to work-off the contained
inventory through the wastewater treatment plant.. .
Wet weather flow is primarily stormwater and thus contains only
, low concentrations of UTS constituents. The UTS is only likely to
be exceeded for a very short period of time early in a storm event
when any hydrocarbon that is trapped in low spots in the sewer is
reentrained by stormwater. Even then, facilities are in place to
try to recover this hydrocarbon before it enters a land based unit. :
The Agency recognized the legitimate need for such land based wet
weather flow impoundments when it provided an exemption for such
impoundments from the Primary Sludge Listing rule (55Fed. Reg.
46354, November 2,1990). Alternatives to continued use of land
based wet weather flow impoundments are very expensive and cannot
be justified by the minimal risk reduction that would be achieved. ' ,,
Mobil's other comments can be summarized as follows:
The Agency is not required to promulgate standards for
non-hazardous surface impoundments and should not do so.
Phase IV issues for pefroleum refiners represent low risk or are
already adequately regulated , -
- EPA has adequate data demonstrating that risks posed by sludges
or leaks from refinery biotreatment impoundments are very low.
- Air emissions from CWA impoundments are adequately addressed
247
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. already by the Refinery Wastewater MACT provisions which invoke the
existing Benzene Waste NESHAP. No other regulations are needed to
control emissions from refinery CWA impoundments. ,.
EPA should not adopt Option 3 because it is not legally required,
is bad environmental policy, and fails any reasonable standard of
cost/benefit assessment.
Adoption of the "battery limits" jurisdictional approach
(suggested in the Phase III proposal)offefs an alternate approach
that could accomplish the objectives of Option 1
and administratively accomplish EPA's Reinventing Environmental
Regulation RCRA "Rifleshof'LDR legislation objectives.
PHASE IV ISSUES FOR PETROLEUM REFINERS REPRESENT LOW RISK OR
ARE ALREADY ADEQUATELY REGULATED .-
In addition to not being required to impose additional controls on
non-hazardous impoundments, the Agency can not justify such
imposition based on the very limited risk reduction
available, especially in view of the high cost involved. However,
ifthe Agency erroneously decides to regulate non-hazardous surface
impoundments, it should adopt Option 2.
Mobil concurs with EPA's Option 2 rationale that there is no need
to impose controls on sludges that are deposited in land based
aggressive biological treatment (ABT) units, because these sludges
have received adequate treatment in the ABT unit. TCLP testing of
such sludges verifies that they are non-hazardous and do not
constitute a threat to groundwater due to leaching. ;
Similarly, Mobil also concurs with the Agency's Option 2 .
conclusion that there is no need to address the integrity of these
low risk non-hazardous surface impoundments. Any leaks in
land based ABT units constitute a very low risk because (1) ABT '
units are inherently well mixed, and(2) as API data provided the
Agency indicates, refinery ABT units provide a level of
treatment virtually equivalent to the UTS. Consequently, since
ABTs are well mixed, any leak, even one near the inlet, will be
made-up of water that has been treated to near UTS standards. .
Mobil also concurs with EPA's rationale that facilities already
248
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.subject to CAA 112 requirements do not need additional controls
on air emissions from these low risk surface impoundments". Air
emissions from refinery surface impoundments are already
adequately regulated by the Petroleum Refining Wastewater MACT
. (which invokes the Benzene Waste NESHAP (BWN)) and/or NSPS
standards. Background data used in the development of the BWN
demonstrate very low volatilization of benzene in refinery ABT
units and very thorough biological treatment of benzene and other
. organics. For this reason, the BWN offers one compliance option
wherein the refinery ABT, in conjunction with sealing sewers, is
the control device for removal and destruction of benzene. Most
refiners with land based ABT units have opted to remove benzene
(and other organics) at the source due to RGRA TC. Regardless of.
the BWN compliance option chosen, in its consideration of MACT
requirements for Refinery Wastewater treatment, the Agency
determined that the controls in place for BWN would also-provide
substantial control of other volatile organics, and imposed no new
requirement, \ .:"'
EPA'should clarify in the final Phase IV rule that compliance with
.the underlying standard (° 112or NSPS) is sufficient to meet Phase
IV air requirements, regardless of the specific manner chosen for
compliance as allowed in the particular underlying standard.
If EPA decides to pursue the approach outlined as Option 2 in the
preamble, specific regulatory language should be proposed for
public review and comment before a final rule is promulgated.
EPA SHOULD NOT ADOPT OPTION 3
Mobil concurs with EPA's assessment that Option 3 is neither
legally required nor good environmental policy. Mobil agrees with
EPA that "impoundment based wastewater treatment systems can be
effective means of treating decharacterized wastewaters, and can
do so without undermining core values of RCRA and the LDR program."
60 FR 43677, col. 1. The Agency has received ample data from API
that clearly supports this contention relative to such
wastewater treatment systems at petroleum refineries. Mobil
refineries participated hi these data collection
efforts. ., .
The Agency clearly recognizes that a decision to impose more
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severe regulation of sludge, leaks; or air emissions from land
based ABT units would effectively preclude the use of land
based ABT units that are providing UTS equivalent treatment.
-Replacement of such land based ABT systems wiu\tankage based ABT
systems would impose significant costs to construct the new tankage
based system and close the land based unit. At one Mobil refinery
where this option was evaluated, the capital cost associated with
the new tankage based ABT system was estimated at$20 million, with
closure of the land based unit estimated to cost another $5-10
million(depending on closure method). In the era of Common Sense
and ReinVenting Environmental Regulation, such costs can not be .
justified in view of the very minor risk reduction achieved.
Any new requirements applied to non-hazardous surface impoundments
should be subject to the four year retrofit provisions of RCRA
section 3005(j)(6).
REFINERY WET WEATHER FLOW IMPOUNDMENTS SHOULD BE EXEMPT
FROM PHASE
III&IVLDRs
During storm events, combined refinery process wastewater and
stormwater runoff above the capacity of the refinery wastewater
treatment plant must be contained for later treatment during dry
weather when there is excess wastewater treatment capacity. This
process is necessary to avoid overwhelming the wastewater treatment
plant during a storm event, resulting in inadequate oil recovery
and biological treatment, with consequent possible failure to meet . , ' .
NPDES discharge limits. The efficacy of the refinery land based
ABT will be equally crucial to maintaining its performance relative
to achieving UTS equivalency, and thus, a means of
diverting combined process wastewater and stormwater (i.e: wet
weather flow) during storm events must be maintained. Many
refineries, particularly those that are older, larger and/or in
geographical regions which receive high average rainfalls, utilize
land based impoundments to provide containment for wet weather
flow. ..-".-' , ,
Land based .wet weather flow impoundments are inherently low risk
because: . .
o They only receive and contain wet weather flow during a storm
event and the subsequent period required to work-off the contained
inventory through the wastewater treatment plant. .
o Wet weather flow is primarily stormwater and thus contains only
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.low concentrations of UTS CONSTITUENTS. The UTS is only likely to
be exceeded for a very short .period of time early in a storm event
when any hydrocarbon that 'is trapped in low spots in the sewer is
reentrained by stormwater. Even then, facilities are in place to
. try to recover this hydrocarbon before it
enters a land based unit. In the event that some small quantity-
of hydrocarbon does evade recovery and enter the impoundment,
.procedures are in place to insure prompt removal. Consequently, the '
wet weather^low contained in the impoundment is a very dilute
mixture. Although none of Mobil's wet weather flow impoundments are
so permitted (one has an emergency'discharge permit), many such
impoundments are, routinely permitted for direct discharge of what
is predominantly stormwater. Because Mobil's wastewater treatment
plants were designed to accommodate and work-off such wet weather
volumes, and because Mobil has had considerable success in reducing
its water use/treatment needs, Mobil has chosen to treat wet
weather flow rather than seek a permit to discharge directly.
o The Agency recognized the legitimate need for such land based .'(
wet weather flow impoundments when it provided an exemption for
such impoundments from the Primary Sludge Listing rule (55 Fed.
'Reg. 46354, November 2,1990). In the preamble to that rule, the
Agency states: " , '
"In cases where stormwater cannot be collected in storm
sewers(e.g., process sewers are used to collect stormwater),
/ stormwater ponds are used to receive surge flow from the process
sewers during storm events. -Such facilities will.route only, wet.
weather flow(mixed process and stormwater) to these segregated
ponds: Sludges generated from segregated stormwater ponds that do ,
not receive dry weather flow (i.e., any process wastewaters or oily
cooling wastewaters) are not included in today's listing." 55
Fed.Reg. 46363, col. 1.
ADOPTION OF THE "BATTERY LIMITS" JURISDICTIONAL APPROACH OFFERS
AN ALTERNATE APPROACH THAT COULD ACCOMPLISH THE OBJECTIVES OF
OPTION 1 AND ADMINISTRATIVELY ACCOMPLISH THE OBJECTIVES OF EPA'S
PROPOSED RCRA "RIFLESHOT" LDR LEGISLATION
If a perfect refinery could be designed, built and operated, it
would convert all crude oil to valuable products and not generate
any wastes. Unfortunately; such perfection has not been achieved, ,
nor is it likely. The inefficiency of various processing steps "
and equipment leaks result in small quantities of hydrocarbons
which were intended to remain in the upgrading process being .
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inadvertently diverted to process sewers; These hydrocarbons are
valuable and historically, even before the advent of environmental
regulation, efforts were made to recover these hydrocarbons for
reintroduction into the,refining process to make petroleum
products. Regulatory requirements (the BWN in particular) and
pollution prevention incentives have combined.to reduce "the amount
of hydrocarbons that inadvertently reach process sewers, but "
the basic economic drive toward recovery remains. Hence, efforts
by the Agency to define these materials that inadvertently reach
the sewer and are recovered in primary oil/water separators
as wastes, or more specifically hazardous wastes, have been
strenuously resisted by the refining industry. Within the context
of RCRA, Mobil and other refiners contend that these materials
are not discarded because they are recovered and reprocessed as a
part of the refining process. Hence, if they are not discarded,
they are not wastes and cannot be hazardous wastes. Mobil ^
and other refiners continue to contend that the point at which
discard of wastewater occurs, and hence RCRA jurisdiction begins,
is after oil recovery (i.e., wastewaters exiting primary
treatment,, either ..
the oil/water separator or dissolved air flotation unit).
While Mobil continues to recommend the foregoing position, it is
recognized that the Agency has not yet accepted this position.
However, in its Phase III proposal EPA outlined and seemed to be ,
willing to consider a "battery limits" alternative suggested by
CMA. The "battery lirnits"approach defines a "point of rejection"
where aqueous streams are aggregated for the purposes of
determining whether wastes are prohibited from land management.
The concept would allow combining a battery of processes involved
in production of a related group of products for consideration as a.
single manufacturing step. Such aggregation need not be
considered impermissible dilution because it is "part of the normal ,
process that results in the waste." S. Rep. No. 284,98th Cong. 1st
sess. 17. The Agency's expressed concern that it might be
difficult to define "battery limit" boundaries would not logically
apply to petroleum refineries. If refinery products can be viewed
as "a group of related products" and refinery processes viewed as
"a single manufacturing step", the "point of rejection" of such an
aggregation would be the outlet of the primary oil/water separation
step, where refinery wastewater typically enters the secondary
treatment process (usually ABT). Mobil recommends that EPA at
least adopt the CMA proposal if h is unable to accept the more
general solid waste definition jurisdictional argument in this
'252
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case. Such an interpretation would accomplish the objectives of
Option 1, as well as the intentions of EPA's proposed RCRA
"Rifleshot" legislation on LDRs, while avoiding,solid waste ,
1 definition issues. - '-, =
RESPONSE ' .
In the August 22, 1995 Phase IV proposal; EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released.to.the '
' environment via leaks, sludges, and.air emissions from surface impoundments in systems
regulated by the~Clean .Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are.wastes which initially exhibited a hazardous characteristic of ignitability, corrosiviry,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal.Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from laind disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will riot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22; 1995 (60 FR
.43655-43677)). Furthermore, the treatment standards for TC metal wastes in'today's rule do not
apply to TC metal wastes if the characteristic is removed.and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . ' ! . . . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. '... ...
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DCN . PH4P019 . ; . . - .
COMMENTER ASARCO Inc.
RESPONDER PMC
SUBJECT EQUV
SUBJNUM 019 . - ''.;,
COMMENT ,. '"'." "
Asarco is concerned with EPA's proposed imposition of management
controls under RCRA pertaining to decharacterized wastes ,and, in
particular, characteristic hazardous wastes that have been
deactivated through dilution as proposed in Options 2 and 3.
Asarco is also concerned with EPA's proposal to replace LDR
standards for land disposal of toxicity characteristic ("TC")
metal wastes from Toxicity Characteristic Leaching Procedure
("TCLP") levels to Universal Treatment Standards ("UTS") levels.
At the outset, Asarco wishes to make clear that this Proposed Rule
. cannot and must not encompass "surface impoundments," such as
tailings ponds, that are excluded from RCRA Subtitle C jurisdiction
pursuant to the Bevill Amendment These units are excluded even
. though they may involve the co-management of mining and mineral
processing wastes (e.g., alkaline tailings and acid plant
blowdown). EPA analyzed these circumstances in its 1985 Report
to Congress on Extraction and Beneficiation Wastes and determined .
that RCRA Subtitle C regulations are not warranted. Regulation of
such impoundments,is beyond EPA's RCRA jurisdiction, and EPA should
ensure this rulemaking adequately distinguishes
Bevill-excluded impoundment units. Furthermore, EPA should make.
clear that any Phase IV LDR proposals that may affect non-Bevill
' mineral processing wastes are outside the scope of this Proposed
Rule and will be addressed in the upcoming supplemental rule. :
Asarco also endorses the comments of the National Mining
Association and the Lead Industries Association regarding this,
Proposed Rule and incorporates them herein by reference. Asarco is .
a member of both organizations.
Proposed Management Controls for Subtitle D Surface Impoundments
That Receive Decharacterized Wastes
In this Proposed Rule, EPA considers three options to control ,
potential cross media releases from surface impoundments that
receive decharacterized wastes containing underlying
, hazardous constituents ("UHCs") above UTS.
Option 1. is the most effective and appropriate method by which
potential cross-media releases from RCRA Subtitle D surface
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impoundments should be controlled. . ,
Asarco supports Option 1, which would appropriately rely on
existing EPA and state programs to address risks posed by potential
cross-media releases from surface impoundments ,
containing decharacterized wastes, and would not require EPA to.
issue LDR requirements. Asarco supports EPA's position in the
Proposed Rule that the United States Circuit Court of Appeals for .
the District of Columbia circuit in Chemical Waste Management y.
EPA, 976 F.2d 2 (D.C. Cir.1992), cert, denied 113 S.Ct. 1961
(1993) (hereinafter referred to as the "Third Third Opinion"), does
not require the Agency to go beyond the Phase III rule to ensure .
,that"removal of UHCs occurs to the same extent in [Clean Water Act
. ("CWA")] impoundment-based treatment systems as it does in
conventional RCRA treatment systems." 60 Fed. Reg.43659r Moreover,
as EPA recognizes in its Proposed Rule, .existing or forthcoming
regulatory mechanisms are sufficient to prevent impoundments from
acting as "conduits for extensive cross-media'transfers of
untreated hazardous constituents" Id. An example is the.
Arizona Aquifer Protection Act. This Act requires that new and
existing "surface impoundments, including holding, storage,
settling, treatment or disposal pits, ponds and lagoons" . -
be designed, constructed and operated to: (1) insure the, greatest
degree of discharge reduction achievable through application of the
best available demonstrated control technology; and (2)prohibh
discharge of pollutants from causing or contributing to a .
violation of aquifer water quality, standards at the applicable
point of compliance. All groundwater in the state is classified as
drinking water and must be protected to narrative and numeric
drinking water standards. , \ ,
Under Option 2, EPA would create ah entirely new, complex system
of treatment standards and management controls concerning sludges,
air emissions, and leaks for wastes that are no longer hazardous
wastes. This would unnecessarily impose burdensome standards on
Subtitle D surface impoundments receiving decharacterized waste. As
discussed above, existing EPA and state programs are sufficient to
control any potential cross-media releases, from such impoundments.
EPA's RCRA Subtitle C jurisdiction is,limited to "hazardous
wastes," as defined by,Section!004(5) of the Act, which EPA
acknowledges with regard to imposition of controls on sludges from
Subtitle D facilities. 42 U.S.C. § 6903(5). Nevertheless, in its .
255,-
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discussion of Option 2, EPA repeatedly states its intention to
impose management controls on"norihazardous wastewater treatment
systems that accept decharacterized waste." See, e.g., 60Fed. Reg.
43663,43673. However, even assuming EPA's interpretation of the ,
Third Third Opinion is correct with regard to this Proposed Rule,
EPA must justify the need for any management controls based on
threats to human health and the environment posed by the remaining
UHCs present in a decharacterized waste stream. EPA has not done
so in this Proposed Rule. EPA has previously stated that the
"characteristic approach does not bring wastes into the Subtitle C
system which do not present a substantial present or potential :.
hazard to humanJiealth or the environment." 55 Fed. Reg. 11798,
11805 (March 29,1990). Thus, any attempt to regulate a waste that
does not pose a threat to human health and the environment, such
as that proposed by EPA in Option 2, is not justified and,
therefore is inappropriate.
EPA proposes in Option 2 to apply sludge and leak controls only to
surface impoundments in which equalization or settling occurs. The
mere fact that settling occurs in Subtitle D or C WA-regulated
surface impoundments does not mean that any risk exists. For
instance, if the decharacterized waste is placed in a pond to
settle out solids so that the water can be reused, the UHC may be
an organic that will typically not settle. In that case, the
sludge would hot contain the UHC, and management controls for land
disposal of the sludge would hot be necessary. The need for such
management controls is not uniform. This approach fails to
consider site- or facility-specific factors. EPA's arbitrary
assumptions regarding the need for these standards could easily .
result in over-regulation of non-hazardous materials. While EPA
correctly proposes to apply sludge management standards .only when
sludges are removed from a surface impoundment, EPA's arbitrary
distinction unnecessarily imposes a significant regulatory burden.
This is a burden that is especially unwarranted in light of the
fact that existing or future regulations are sufficient to control
any potential cross media releases from all three types of
Subtitle D and CWA-regulated impoundments.
EPA itself recognizes that the proposed management controls for
sludges are unnecessary, acknowledging that no treatment of sludges
would even satisfy the equivalency standard pronounced in the Third
Third Opinion. As EPA cprrectly notes in its Proposed Rule,
"literal application of an equivalence test would result in no
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.treatment of these sludges [removed from Subtitle D surface
impoundments], since the sludges will be non-hazardous by
definition (they cannot be hazardous wastes.because they are being
generated in Subtitle D surface impoundments), and so would not
257
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"require further treatment under the standard Subtitle C approach."
60 Fed. Reg. 43673. Asarco concurs with EPA's assessment and
believes there should'be no management standards under Subtitle C
' for land disposal.of sludges removed from Subtitle D facilities.
With regard to Option 2 management controls for leaks, EPA would
unnecessarily require annual sampling of decharacterized
wastewaters in the impoundments to determine if
regulated constituents are present at an arbitrarily established .
trigger level often times the Maximum Contaminant Level ("MCL"),
regardless of whether a leak from an impoundment has been detected.
EPA would require such annual sampling for as long as the unit is
receiving decharacterized waste, despite the adequacy of the
existing regulatory controls under the CWA, despite the fact that
the waste is nonhazardous and despite the fact that state
groundwater protection programs may regulate surface impoundments
to minimize risks to human health and the environment. Asarco
believes such a requirement is unnecessary and burdensome. In
, fact, such sampling is more burdensome than the counterpart
Subtitle C requirements for active surface impoundments. Moreover,
in light of the non-hazardous status of the decharacterized waste,
-this requirement is not justified and is inappropriate.
Option 2 also includes proposed management standards for air
emissions from surface impoundments receiving decharacterized
waste. Such management controls are unnecessary, as there may be
only very limited potential for hazardous air emissions. This
limited potential is already adequately addressed by existing
controls that are imposed under the Clean Air Act, such as those
pertaining to criteria pollutants and the National Emissions
Standards for Hazardous Air Pollutants.
Asarco supports EPA's position that Option 3, which would require
that decharacterized wastes meet UTS before entering surface
impoundments, is unreasonably burdensome and unwarranted. Asarco
agrees that this proposal would undermine the utility of
impoundment-based treatment systems as effective treatment units
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.for decharacterized wastewaters. Moreover, in order to fulfill the
requirements proposed in Option 3, facilities nationwide would be -
forced to incur great expense and disrupt necessary and effective .
wastewater treatment programs. This, in.and of itself, would make a
proposal that is purportedly aimed to protect human health and the .
, environment counterproductive. Asarco also believes that Option 3 .
would unnecessarily impose requirements where there is already :
, little or no risk. '
In addition, EPA correctly recognizes in its Proposed Rule that
RCRA requires some"accorhmodation" with the CWA regarding
impoundment-based treatment systems. 60 Fed. Reg.43677. Because .
Option 3 would override any potential for such an accommodation,
this proposal is beyond EPA's authority and should be abandoned. '
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the ,
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act'(60 FR 43655): Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a.result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660),
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
;Drinking Water Act . , ' ...
.. \ :
.HoSyever, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to ^
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings ofthis study, begun by the Agency in April, 1996, may
result in proposed regulations for these units; if risks are in fact found that would warrant such
regulation.
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DCN . PH4P019 . -
COMMENTER ASARCO INC. .
RESPONDERSS
SUBJECT EQUV '
SUBJNUM 019
COMMENT , ,
, ' i
Proposed Management Controls for Subtitle D Surface Impoundments That Receive
Decharacterized Wastes . '. .
t *
In this Proposed Rule, EPA considers three options to control potential cross media releases from
surface impoundments that receive decharacterized wastes containing underlying hazardous
constituents ("UHCs") above UTS.
Option 1 is the most effective and appropriate method by which potential cross-media releases
from RCRA Subtitle D surface impoundments should be controlled.
RESPONSE ^
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized1
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the.
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these.units, if risks are in fact found that would warrant such
regulation. ' , , .
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DCN PH4P020 ' \ , / . .
;.'. COMMENTER Exxon Company US A .'"
RESPONDERHM ^' . '
"SUBJECT, EQUV .... , . -
.SUBJNUM 020 . . , . " ' ,. - -
COMMENT ' . .'.'." . ' -.',- ' .'
J ' , ' .
3. The point .of generation where LDRs attach should be at the point of wastewater discard
. ; \
Notwithstanding Exxon's support of Option 1 (no additional controls), the point of'
generation remains a significant outstanding issue from the Phase III LDR proposal. It is
unfortunate that it is not resolved at this point since it has the potential to significantly
affect applicability of this rule to petroleum refineries. Through API, Exxon continues
to challenge EPA's definition of the point of generation for wastewaters. Exxon has
, , joined with other API members and filed a petition for review of the July 28,1994 .
. Final rule on the Definition of Solid Waste in Petroleum Refineries: Exxon repeats its
' " assertion that wastewater is not a waste until it is discarded. The point of discard
occurs downstream of the last unit that recovers valuable product from wastewater, "
.namely the oil-water separator. This is the most logical definition of discard in a
. , petroleum refinery and should be the point of generation where LDRs attach.
RESPONSE ' .-- " / . . . ' .-
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a resulCon April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).,
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR '
43655-43677)). .Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground, injection wells, the Safe
Drinking Water Act: ,
*
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by. cross:media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the. Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ' :
."'. 261
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DCN' . PH4P.020 > ' . ' .
COMMENTED Exxon . " . .
RESPONDED PMC
SUBJECT EQUV - x ;
SUBJNUM 020 ''';-'
COMMENT , , " .. ; ''.-'"'
D. De,Minimis exemptions for characteristic wastewaters should . .
be expanded < . .
To avoid triggering extensive requirements for low risk
facilities, EPA should adopt a deminimis exemption for . . ^ , '..
characteristic wastewaters. This exemption should be in the form
of aheadworks-type exclusion for characteristic wastewaters whose
volume comprises lessthan 1% of the total flow sent to CWA -
systems. The condition that UHCs not exceed tentimes the UTS
levels should be dropped from the Phase IV LDR proposal since the
totalvolume of the streams is so small that the relationship
between the UHC level and theUTS level is unimportant. This new . i 1
'' exemption would recognize the minimal risk to healthand the i
environment from de minimis streams and not mandate unnecessary .
investment. ' - -.
\ ' ,
RESPONSE ' '".'
' ' - " ' f . '-,-,,
f . / . _
The Agency is retaining the de minimis exemption previously promulgated at 40 CFR
268. l(e)(4)., In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring
that underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996,.EPA withdrew its treatment standards for these wastes (61 ER 15660),
Today's Phase TV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do npt
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated.
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
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DCN PH4P020 : , .
COMMENTER -EXXON COMPANY USA . ,'
RESPONDER ^PMC , .
SUBJECT EQUV - ,
SUBJNUM. 020 . , . '
COMMENT '
The lack of regulatory language describing the three control
options in the Phase IV LDR proposal is a matter of great concern .
to Exxon. Before promulgation of a Phase IV LDR rule, EPA should
make regulatory language available for notice and comment in the ,
\ Federal Register.
The overviews provided for each of the options in the preamble
generate'many unresolved questions that can only be understood in
the context of regulatory language., EPA has provided flowcharts
for some of the Option 2 proposals; however, it.is a yery difficult '
task to translate these flowcharts into regulatory language. Exxon \
offers two examples where confusion exists due to the lack - .
of regulatory language. First,, there are no specific criteria or
definitions given on the different types of surface impoundments
potentially subject to control (e.g., primary, secondary, .tertiary,
pre-biological, biological and post-biological).. Second,
the> details of how. surface impoundments are exempted from air .
emission controls if a facility is subject to a Clean Air Act (CAA) ,
' standard are vaguely described. In a petroleum refinery, for
example, as many as 21 CAA standards may apply including New Source
Performance Standards (40 CFR Part 60), National Emission Standards
for Hazardous Air Pollutants (40 CFR Part 61) and National -
Emission Standards for Hazardous Air Pollutant Source Categories
(40 CFR Part 63 or MACTs). If a petroleum refinery or marketing
terminal is.subject to one of these standards, is that sufficient
to, preclude the Clean Water Act (CWA) Surface impoundments at that
facility from Phase IV LDR controls? Do surface impoundment
controls need to be specifically addressed in the CAA standard'
before an exemption is allowed? Will there be any demonstrations
required in order to claim an exemption from controls? These and
many other questions make it critical that EPA propose regulatory
language for notice and comment.
- ' \ ' *
A. Clarify that facilities subject to MACT standards that .
address wastewater are not subject to surface impoundment air
emission controls
The exemption from surface impoundment air emission controls was
not clear in the Phase IV LDR preamble, due in large part to the
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absence of regulatory language in the rule. EPA. should clarify
that facilities that are an "affected source" per 40 CFR Part
63and that are subject to wastewater standards resulting from 40
CFR Part 63 MACTs are not required to install surface impoundment
air emission controls. EPA should clarify that the exclusion,
applies if the sources are simply subject to the rule. EPA should
clarify that any method of compliance with a MACT (e.g.,
technology-based standards, de minimis thresholds, deferral to
other Clean Air Act rules such as the BWON) provides -
sufficient control and precludes the need for Phase IV LDR
requirements. . .
B. EPA should expand the Option 2 exemption to Subtitle C
Interim Status Surface Impoundments
In Figure 1 on 60 FR 43622, EPA identifies an exemption from
Option 2 controls for "... .surface impoundments located at a RCRA
Subtitle C Permitted TSDF". Since Surface impoundments located at
RCRA Subtitle C Interim. Status TSDFs are subject to the
same construction requirements (i.e., double liners with leachate
collection) as impoundment sat Permitted TSDFs, there is no reason
to limit the exclusion to Permitted TSDFs.
Exxon strongly supports EPA's selection of Option 1 (no additional
controls) for the Phase IV LDR. Existing regulations and low risk .
from CWA impoundments managing decharacterized wastes provide
sufficient protection of health and the environment. Additionally,
the Third Third decision does not require EPA to promulgate
additional controls.
A. The Third Third decision does hot require surface
impoundment emission controls
One of the most compelling reasons to support Option 1 is that the
Third Third decision does not require additional requirements for
surface impoundments receiving de-characterized waste. Exxon
supports API's analysis of the legal reasons why the Third Third
decision does not require controls for surface impoundments
managing decharacterized wastewaters.. Given the lowcost benefit
of this rule, EPA should exercise maximum discretion and
promulgate a rule with minimal additional requirements. .
B Petroleum refinery water quality has improved significantly
as a result of recent rulemakings
Another important reason not to regulate Clean Water Act (CWA)
. surface impoundments further is that three rulemakings have
.significantly improved the quality of petroleum refinery wastewater
264.
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.and stormwater in the last five years. Additional controls from
the Phase IV LDR rulemaking are not needed. The Toxicity :
Characteristic (TC) rule promulgated on March 25, 1990 resulted in
reductions in the level of benzene in refinery wastewater and
stormwater. The Primary Sludge Listing promulgated on November,
?., 1990 required Exxon and others to perform one-time sludge'
removal from refinery impoundments and convert them to
non-hazardous service under Delay of Closure provisions at 40 CFR
265.113.d-e. In 1994, Exxon's refineries in Baton Rouge,
Louisiana and Baytown, Texas removed more than 100,000 Tons of
sludge in order to meet Delay of Closure requirements. As part of
this conversion to non-hazardous service, many wastewater streams
were rerouted away from the stormwater impoundment. The effect of
the rerouting was to improve stormwalcr quality and reduce the /
risk from stormwa'ter impoundment releases. Finally, the National
Emission Standard for Benzene Waste Operations (BWON) promulgated.
on January 17,1993 resulted in segregation and treatment of .
benzene-containing wastewater throughout refineries and - /
petrochemical'plants. In-the process of complying with these three
rules, most other organic compounds that occur with benzene (such
as toluene and xylene) in wastewater and stormwater were
controlled. Any historic "picture" EPA has of the risks posed
by wastewater, stormwater and the units managing these streams is ,
outdated unless it takes into account the improvements achieved by
the TC, Primary Sludge and BWON rules.
C. State Subtitle D and Federal spill rules provide another
layer of environmental protection
States already regulate subtitle P wastewater and stormwater
impoundments wherever they feel regulation is appropriate. Federal
regulations promulgated by the Phase IV LDR rule would be in
addition to state requirements. .
Existing EPA rules for management of spills address both routine .
and non-routine releases of Underlying Hazardous Constituents
(UHCs) into CWA systems. EPA should not promulgate Phase IV LDR
controls in order to mitigate spills. "Toxic pollutants", (many of
which are UHCs) are defined for CWA systems and are regulated at,
40 CFR 122.42and 401.15. Additionally, CERCLA reporting ,
requirements at 40 CFR 302.6 require reporting of many UHCs if they
exceed the importable quantity designated by the regulation.
The following comments provide a detailed rationale for why
stormwater Surface impoundments should not be regulated under the.
Phase IV LDR. The comments below are equally applicable to.. v
265
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regulation of.stormwater impoundments under'the Phase III LDR
proposed rule.
A. Description of stormwater impoundments at Exxon's refineries
and co-located petrochemical plants .
Exxon utilizes common sewer systems for conveyance of both process
wastewater and stormwater at each of its four refineries (two of
which have large co-located petrochemical plants operated by Exxon
Chemical Americas that send wastewater and stormwater to the
refinery). At Exxon's Montana refinery, annual rainfall is low
enough that stormwater impoundments are not required. Other Exxon
refineries in Louisiana, Texas and California have large stormwater.
impoundments that intermittently store stormwater mixed with
decharacterized process wastewater. '
1. Stormwater surface impoundments receive decharacterized process
wastewater . .
During dry weather, Exxon's refineries and co-located
petrochemical plants manage decharacterized process wastewater in
their Aggressive Biological Treatment (ABT)uriits. Decharacterized
process wastewater results from the aggregation of small streams of
characteristically hazardous wastewater (generally with low levels
of benzene) with numerous streams of non-hazardous wastewater.
During rain events, this decharacterized process wastewater stream
is further aggregated with stormwater and managed in stormwater
impoundments (except at Exxon's Montana refinery, as noted above).
With these layers of aggregation, both the concentration and mass
loadings of UHCs become even lower and the influent to the
stormwater impoundment is generally below Universal Treatment
Standards (UTS).
2. Stormwater impoundment management strategy calls
for impoundments to be empty whenever possible
Because the objective of the stormwater impoundments is to receive
rainfall, Exxon operates them at minimum levels whenever possible.
As soon as a rain event ends, the clean stormwater is either
directly discharged under a CWA permit or processed through the
biological wastewater treatment systemJ. Stormwater generally
meets CWA discharge permit parameters without additional
biotreatment
The stormwater quality is generally good because of the low
concentrations and minimal mass loadings of UHCs in the
decharacterized process wastewater. The low UHC concentrations
result because only a fraction of the stormwater
was decharacterized process wastewater arid only a fraction of the
decharacterized process wastewater was formerly hazardous. The
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formerly hazardous process wastewater usually contains nominal
levels of benzene only. Stormwater normally meets CWA discharge
permit parameters without any additional biotreatment. This gives .
the facility the option to directly discharge the stormwater if it
meets CWA discharge permit limits or to process the stormwater
- through the wastewater treatment plant. , ' -
4.; Summary table of Exxon's impoundment, management systems .
The table below summarizes key factors about Exxon's stormwater
and wastewater impoundment management systems. Exxon owns and '
operates approximately 45acres of stormwater impoundments, 18 acres of ABT
impoundments and 400 acres of biological impoundments
downstream of ABTs. . .-
Table III.A.4 - Exxon's Refinery Surface Impoundment Management
TABLE NOT REPEATED HERE, SEE ORIGINAL COMMENT.
\ *
The purpose of this section is to present several reasons why
stormwater impoundments are unique when compared to other types of
impoundments. The uniqueness of stormwater impoundments reduces
their risk to health and the environment and decreases the need for
.additional controls such as liners or leachate collection systems;
1. Water and sludge quality have improved significantly as a
- result of the Toxicity Characteristic .(TC) rule, Primary S ludge
Listing and the BWON . , - -
As a result of three significant regulations promulgated in the
last five years, the quality of refinery and/or co-located
petrochemical stormwater and wastewater has improved significantly. \. .
EPA's historical level of concern about stormwater ;. .
Surface impoundments should be lowered as a result of these
regulations. These three regulations are the Toxicity
Characteristic (TC) rule, Primary Sludge Listing and the BWON..
These regulations have significantly reduced the risk to health
and the environment from surface impoundments; Additional controls
on Surface impoundments, wastewater or wastewater sludges are \
neither necessary nor cost-effective. ^
2. Size of stormwater impoundments
As noted in Table III.A.4 above, Exxon has 45 acres of stprmwater
impoundments at its four refineries and two co-located
petrochemical plants. The sheer size of the impoundments makes any
, regulation requiring additional controls very costly.
After considering the minimal risk from these impoundments, Exxon;
urges EPA to not promulgate any additional controls for them.
3. Stormwater impoundments provide surge protection for wastewater
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.treatment plants and ensure efficacy of biological treatment units
In three of the four Exxon refineries, stormwater impoundments are
absolutely necessary in order to operate biological wastewater *'
treatment systems in compliance with CWA permits. Exxon supports
EPA's position,that stormwater impoundments are important
equalizers that are required to maintain the efficacy of
biological treatment systems. See 60 FR 11718 on March 2, 1995.
Without the stormwater impoundments, large rainfall events would -
flush biomass out of the wastewater treatment system and reduce the
treatment plant's efficiency. Additionally, rapid flushing of
-biomass from a wastewater treating plant due to the addition of
stormwater could compromise a facility's ability to comply with CWA
permit .parameters such as Total Suspended Solids (TSS) and
Biological Oxygen Demand (BOD). .
> 4. Stormwater impoundments are generally empty so the
residence time of UHCs in the impoundments is short
As seen in Table III.A.4, Exxon's stormwater impoundments are
generally at minimum levels in order to be available to receive
stormwater. Since the impoundments are generally empty, there is
no driving force in the form of a liquid level to leach hazardous
constituents out of the stormwater impoundment sludge into
the groundwater., Additionally, the water is either discharged or
biologically treated shortly after being stored in the stormwater
impoundment so UHCs have little chance of migrating. The
intermittent use of a stormwater surface impoundment provides '--
an excellent rationale for their exemption from any Phase IV LDR
leak or sludge management standards. Finally, as seen in Table
III.A.4, natural clay liners beneath Exxon's stormwater surface
impoundments provide an added level of protection against
groundwater contamination.
5. Decharacterized process wastewater constitutes a fraction of
the total stormwater and is predominantly non-oily
In the Primary Sludge Listing, EPA provided general information .
for typical refinery wastewater streams that do not include oil.
These streams include cooling water, steam turbine water, boiler
blowdown, stripped wastewater and water treatment plant filter
backwash. The Exxon Baytown, Texas Complex has estimated, for
example, that non-oily wastewaters from these sources constitute ,
over 70% of their daily average flow process wastewater flow.
The decharacterized process wastewater results from aggregation of
small streams of characteristically hazardous wastewater with
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numerous non-hazardous wastewater streams. During rain events,
decharacterized process wastewater is further aggregated with
stormwater and managed in stormwater impoundments. With
these layers of aggregation, the resulting stormwater influent is
penerally below UTS and the mass loadings of hazardous, constituents . '
- entering the impoundment are minimal. ,
Exxon has selected RCRA Subtitle C Delay of Closure as its
.compliance option for surface impoundments in Baton Rouge,
Louisiana and Baytown, Texas. Extensive groundwater monitoring . : -
- requirements including semi-annual sampling are required up gradient
and down gradient of these impoundments. In order to provide some
data on the quality of water in these impoundments, we have .
summarized,the two most recent grouhdwater sampling events^at the '
Baytown, Texas facility for the largeststormwater impoundment - .
below: .
Number of down gradient groundwater wells: 26 ,
Number of constituent analyses: 2,164 :
Number of detectable constituent analyses: 3
(equivalent to 0.14% of the total constituent analyses)
Details of three sample analyses with detectable levels of constituents',
summarized below: '
' . , ' > i
Constituent Measured Value Units UTS Level Comparison of Measured Value to UTS
, . ' .... ' . \ . . .
Benzene 0:002 . mg/L 0.14 Measured value 70 times lower than UTS
Lead c 0.01 mg/L 0.69, Measured value 69 times lower than UTS
Toluene 0.004 mg/L 0.08 Measured value 20 times lower than.UTS
/ ' ' ' '
As evidenced by the data above, there is no concern with levels of .
UHCs in the groundwater beneath this stormwater impoundment. The
very large number of non-detects and comparisons to UTS are typical
of the groundwater beneath Exxon's Delay of Closure impoundments.
6. Stormwater impoundment influent exceed UTS for only
short periods, if at all
The ratio of process wastewater to stormwater is largest during
the first few minutes of a rain event. It is during this brief
period that the concentration of UHCs is typically highest and
might temporarily exceed UTS at the inlet to ;the stormwater
impoundment. Exxon's Baton Rouge, Louisiana Complex and Baytown,
Texas Complex sample their stormwater impoundment inlet every two <
hours during a rain event for benzene. The results generally show
the first sample exceeding the UTS level of 0.14 mg/L forbenzene
269
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with subsequent samples below the 0.14 mg/L UTS level. A
composite benzene sample taken every two hours throughout the storm .
,is also below the UTS level. Exxon's California refinery also
samples its stormwater impoundment inlet every two hours and does.
not generally exceed the benzene UTS level for any period of time. '
Aggregation of.the process wastewater with stormwater quickly
lowers the concentrations of UHCs below their UTS levels.
Certainly, a brief excursion above the UTS levels in the first few
moments of a rain event, when considered against backdrop that
the stormwater impoundments are generally empty and
prohibitively expensive to replace, does riot warrant any type of
additional controls for the impoundments.
\ ' ' : ~ f
Exxon has a total of eight impoundments that are regulated under
the RCRA Subtitle C Program as a result of either the TC rule or
the Primary Sludge Listing. Five of these impoundments manage
stormwater and three are ABTs. For each of the eight impoundments,
Exxon has chosen the Delay of Closure compliance option outlined
in40 CFR 265.113.d-e. To comply with Delay of Closure, Exxon has
removed hazardous waste waters and hazardous sludges from these
surface impoundments to the extent practicable. In addition, the .
impoundments have been converted to non-hazardous service in order ,
to allow their continued operation.
Exxon realizes that the Third Third opinion appears to allow
continued use of only subtitle D impoundments that treat
non-hazardous wastewaters. Presumably, this is because the court
was not familiar with the Delay of Closure provisions.
Nevertheless, Exxon encourages EPA to recognize that an impoundment
operating under RCRA Subtitle C Delay of Closure provides a higher
level of health and environmental protection than a Subtitle D
impoundment. The stringent groundwater monitoring, closure and
post-closure care requirements stipulated in 40 CFR Part 265
Subpart G provide protection over and above Subtitle D standards.
Exxon requests that surface impoundments operating under Subtitle C >
Delay of Closure be exempted from additional controls promulgated
during the Phase IV LDR. ;
8. EPA recognized the unique nature of stormwater mixed
with process wastewater during the Primary Sludge Listing .
Special consideration of stormwater impoundments intermittently
managing low levels of process wastewater is not precedent-setting
for EPA. In the Primary Sludge Listing, stormwater impoundments
receiving predominantly stormwater, were exempted from the listing
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definition. . - ' ' . .
The Agency agrees with the commenters that stormwater units that.
receive process .wastewaters in this manner [from sewer systems
where stormwater and process wastewater are co-mingled], and do riot
receive any process wastewaters or oily cooling wastewaters during
dry weather flow, do not routinely generate sludges that are
similar in composition to .the primary treatment sludges subject to
today's listings. 55 FR 46374,on November 2,1990.
The same logic should be used to exempt stormwater impoundments
from additional controls under the Phase IV LDR. .
Exxon believes that these impoundments should not be regulated .,
under the Phase IV LDR. The analysis below demonstrates that there '
are no cost effective alternatives to these impoundments^
Replacing stormwater surface impoundments .with tanks or - ~.
retrofitting them to Minimum Technological Requirements (MTR) is
prohibitively expensive and might not be feasible. Alternatively,
segregation of decharacterized process wastewater from stormwater
generally requires a completely new, sewer system that is also
prohibitively expensive to retrofit into an existing refinery
and/or co-located petrochemical plant. Recognizing these large '
costs and the minimal risk, EPA should allow continued use
of stormwater impoundments and not promulgate additional stormwater
impoundment controls in the. Phase IV LDR. .
1. Replacement of-stormwater impoundments is not cost effective or
feasible-
In 1992, API employed a contractor to estimate the costs for
closure of Surface impoundments and their subsequent replacement
with tanks. Unit cost factors generic to the petroleum refining
industry for stormwater impoundment replacement were estimated by
the contractor. Exxon has taken these generic unit cost
factors and estimated a one-time cost of $70 M and ongoing costs of
$4 M/year for the nextSO years to replace the Exxon refinery
stormwater impoundments with tanks. These costs do not include the
large pumps required to transport stormwater or the independent
power supplies necessary to make the large pumps available during
a power outage. These costs are prohibitive considering the low
risk of stormwater impoundments. The costs are summarized in Table
III.C.l below. .
Table III.C.l - Costs to Close Exxon's Refinery Stormwater
Impoundments as Landfills and Subsequent Replacement with Tanks
Description . * ;
Unit Cost(Rounded)l . .
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.Acreage of Exxon Impoundments
Total Cost(Rounded)l . '
Landfill Closure (One-time) .
750k$/Acre ' ' , . ' '
45 ../..'.'
$35 M . '
Tank Replacement (One-time) . . '
750k$/Acre " '
45 ' ' ' - .--', '- , '. .- --' -
$35 M ' ' ' s .''-'
Total Costs (One-time) ' .
$70 M - . . . ',..'
Tank operations and maintenance, groundwater monitoring, post closure
care(Ongoing for 30 years) ,
85 k$/Acre/Year . ' '-
45 ' - '."- . '-.
$4M/yr '.
1 k=l,000 and M=l,000,000a. Real estate limitations could exist
In the event stormwater impoundments are required to be replaced
and/or closed, there will be an interim period when real estate
must be available for both the new tanks and the existing
impoundments.. The refinery must continue to have an outlet for its- .
stormwater during the period of impoundment closure and
replacement. This additional real estate requirement will be
difficult to overcome. At each Exxon facility where the Phase IV
LDRs might require stormwater impoundments to be replaced, new
tanks would consume substantial plot space. The Gulf
Coast refineries are surrounded by neighborhoods and the likelihood
of increasing the refinery acreage is low.
2. Segregation of decharacterized process wastewater
from stormwater is not cost effective
The previously characteristic wastewater streams that produce
decharacterized process wastewater contain low levels of TC
constituents (generally benzene). The characteristic streams
generally have low flowrates but are located throughout a refinery
and/or co-located petrochemical plant. They cannot be easily or .
cheaply, segregated from other non-hazardous wastewaters or from
stormwater.
On the basis of publicly available cost information from other
refineries, Exxon would estimate a cost in excess of $400 Million
for segregation of decharacterized process wastewater from
stormwater for our four refineries.and two corlocated
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petrochemical plants. Imposing such large costs'to address'minimal
risks is not reasonable.' Additionally, costs of this magnitude
seriously threaten the economic viability of these facilities and
jeopardize their continued operation.' Because of the aggressive
nature of biological treatment in an ABT unit, it is unlikely that
segregation would measurably, improve the. quality of water being
discharged. >
In.summary, there is no reasonable alternative to the continued
operation of stormwater impoundments. Because neither stormwater.
impoundment replacement with tanks nor segregation of wastewater
from stormwater is cost effective, EPA should not promulgate Phase
IV LDRs that mandate additional controls. , '
IV. EPA should designate Aggressive Biological Treatment units <
(ABTs) as "Best Demonstrated Available Technology" (BOAT) for
process wastewater from refineries and co-located petrochemical
plants ., ' . . ' ,. ..-
Exxon encourages EPA to. carefully consider API's comments on this
matter. By choosing ABT as BDAT for refinery and petrochemical
wastewaters, EPA would adopt a cost-effective and proven technology
that meets UTS while minimizing analytical difficulties and
monitoring burdens. The combination of ABTs and
downstream biological impoundments provides, long residence times of.
wastewater in treatment units, low cost, ease of operation and is N ,
more cost effective than tanks in identical service. The CWA
permits at refineries and co-located petrochemical .plants
are already protective of health and the environment largely as a
result of the efficiency ofthese wastewater treatment units. ,
Designation of ABTs as BDAT helps EPA meet its obligation under
RCRA Section 1006(b) to integrate RCRA and CWA requirements.
A. If ABT is designated, the Phase IV LDR compliance point should
be moved
Assuiming EPA designates ABT as BDAT for refinery and petrochemical
wastewaters, facilities should have the ability to move their Phase
IV LDR compliance point to the ABT unit inlet. EPA should provide
this flexibility in the final Phase IV LDR. - .
A- If EPA determines that additional surface impoundment controls
are required, a four year compliance, period should be provided
If EPA decides in the Phase IV LDR that surface impoundments
managing decharacterized wastes require additional controls, the
full four year compliance period provided in RCRA section 3005(j) s
should be available. Arguably, since the potential surface
273
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. impoundment controls are on non-RCRA impoundments (and therefore "
not subject to RCRA), EPA can set the compliance period to any . ,
length of time. The four year period should begin with the
promulgation of the Phase IV LDR. EPA has already determined that
RCRA section3005(j)(6) provides four years for retrofit pr closure
of impoundments not meeting MTR.57FR 37218-22 on August 18, 1992.
The entire four year period to install the new controls on a ,
surface impoundment will be required by Exxon given the
magnitude, expense and technical difficulty of the task:
B. Option 2 grqundwater and corrective action management '
standards should allow a site's qualified groundwater scientist the
flexibility to select multi-unit or individual unit groundwater
monitoring systems in the event groundwater monitoring of a surface
impoundment is required, site specifics require the flexibility to
select either an individual unit or multi-unit groundwater
monitoring system. Exxon supports EPA's position that the
qualified groundwater scientist should have authority to make this
selection. There are instances where surface impoundments are
closely spaced and the addition of wells between the units to
create individual systems adds no value to an .
up gradient/down gradient analysis. Conversely, there are instances
where "interferences" exist between surface impoundments (such as
public water bodies, old Solid Waste Management Units or other
contaminated property) and the ability to separately delineate the"
units is essential.
C. EPA should expand the list of corrective action measures to
include continued use of surface impoundments under certain
conditions .
If a release from a surface impoundment is validated, EPA only
allows two options according to 60 FR 43672. First; the
decharacterized wastestream can be rerouted to a tank. Second, the.
surface impoundment can be retrofitted with a double liner and , '
leachate collection. Both of these options can be prohibitively
expensive and unnecessary. ' ,
Containment and removal/treatment of the groundwater should be
acceptable as alternative means to allow continued use of an
impoundment. Containment mechanisms such as generation of a cone
of depression to collect and treat the contaminated groundwater
or installation of a slurry wall around an impoundment provide
adequate control of contaminated groundwater and do not force
expensive tankage or double liner/leachate collection expenditures.
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RESPONSE ',...'» ' ... . . ; >
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe.Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially .exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once.rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.' ' . . "
'**.,'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents'from these'
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . , , '
' > . . . r + '
DCN PH4P020. . . ' .
COMMENTER EXXON COMPANY USA .
RESPONDER SS :
SUBJECT EQUV ' . .
SUBJNUM 020 . . . .
COMMENT . .
B. EPA should not modity the treatability group doctrine,
In the Phase IV LDR preamble, EPA appears to assert that the
treatability group doctrine does not need to be modified as a
result of the Third Third decision by stating that
the court likewise did not see that hazardous constituents in
deposited sludges must be treated. The court in fact did not speak
to the; principle stated by EPA in the Third-Third rule that , ^ ,
generation of a new treatability group is considered to be a .
new point of generation and thus a new point for determining
whether a waste is prohibited. -55 FR at 22661-662.Under this . . .
principle, unchallenged in the litigation, wastewater treatment
sludges not exhibiting a characteristic are not prohibited wastes, .
notwithstanding that they may derive from prohibited wastewaters.
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60 FR 43656 on August 22, 1995. . . ' '
, However, after supporting the treatability group doctrine in these -
early pages of the Phase IV LDR preamble, EPA overrides the -
doctrine when describing the Option 2 sludge management standards.
If the concentration level of one or more of. the UHCs exceeds UTS,
"then the sludge must be treated by means other than dilution to '
meet UTS, 60 FR 43675 and Figure 4: Option 2 at 60 FR 43674 on "
August 22, 1995. ',
Rather than the trigger.for sludge treatment being the TC levels '
(as would be me case if the treatability group doctrine was
followed), EPA.has designated.UTS levels as the threshold for
requiring LDR treatment standards for sludges. Exxon encourages
EPA to reconsider this position and maintain the treatability group
doctrine. Let characteristic waste testing determineif LDR .
standards apply. EPA recognizes its.option to maintain the ". '
~ ' doctrine. .
EPA also reiterates that, as a legal matter, it can be argued that
even no treatment of sludges is equivalent to Subtitle C LDR
controls. This is because generation of sludges is usually a new . ,
point of generation at which the newly-generated waste is '
reevaluated to determine if it is subject to the LDR standards.
If non-hazardous, the sludges would not be so subject (i.e., would .
not be prohibited wastes). 60 FR 43673 on August 22, 1995.
RESPONSE:
At this time, EPA is not modifying the treatability group doctrine. Wastewater treatment sludges
that do not exhibit a characteristic of hazardous waste are not prohibited wastes. The sludges are
a newly-generated waste. The newly generated waste must be evaluated independently for a
determination of regulatory status. .
In the August 22,1995 Phase IV proposal, EPA discussed three options! for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic): On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardpus. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR ,
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
' ,216 .--'.
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in a unit that is regulated by the Clean Water Act or, for underground injection,wells, the Safe
'Drinking Water Act. -
However, the Land Disposal Flexibility. Act does mandate EPA to undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such,
regulation. .
277
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DCN PH4P020 ......
COMMENTER EXXON COMPANY USA
RESPONDER SS .
SUBJECT EQUV . , ' .
SUBJNUM 020 ' / ,.
COMMENT '..''. *' / . ,
VI. Critical Phase HI LDR proposed rule issues should be ,
considered as part of the Phase IV LDR
. A. Aggregation of process wastewater is part of refinery
and petrochemical processes and should not be considered
"RCRA impermissible dilution" . .
Exxon recommends that EPA carefully examine the historical.
definition of impermissible dilution in light of the uniqueness of
wastewater cpllectibn and conveyance systems. If EPA attaches LDRs
at multiple points in a facility's wastewater collection system,
. the result might be that aggregation constitutes'impermissible
dilution. This position might drive.the facility to costly and , »
unnecessary point source segregation.
EPA should recall that many of its RCRA LDR requirements were . , '
established for waste management practices other than continuous
flow wastewater systems. However, in wastewater systems the
distinction between "aggregation" for the purposes of treatment and
"dilution" for the purposes of meeting UTS is unclear. Before the
RCRA statute even existed^ industry aggregated wastewater for the
, ; purposes of treatment; therefore, aggregation was not a methodology
\ developed by industry to bypass RCRA standards. To clarify this .
issue, Exxon recommends that 40 CFR268.3.b be reinstated to
read," AGGREGATION of wastes that are hazardous because they
exhibit a characteristic only, in a treatment system which treats
wastes.. .pursuant to a permit issued under.. .the Clean Water
Act (CWA).. .is not impermissible dilution." , '
1. Exxon agrees that the CWA has sufficient protection against dilution. Exxon
. supports EPA's statements in the preamble to the Phase III
LDR such as EPA also believes that there are adequate constraints in the CWA
implementing rules to prevent these end-of-pipe standards from being achieved by
means of dilution/60 FR 11711 on March 2,1995.
CWA permit writers have the authority to consider excessive levels
: of water use when setting discharge permit parameters including
protection against dilution. This authority should be sufficient
protection to preclude additional Phase III or Phase IV
LDR requirements relating to dilution.
2. Exxon agrees that aggregation is not for the purposes of
278
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dilution, but for the purposes of treatment ' x
If EPA defines points of generation for decharacterized process
wastewater far upstream in a wastewater conveyance system,
.expensive arid unjustified point source segregation could result. . ' ;
Exxon supports the Phase HI LDR preamble language that -
\.. .where residues are generated within a unit process, it might
be possible to view these streams as still .within the normalpart ' ,
of the process that results in the waste.. .and consequently-thai ,
, any routine combination of these streams from the common process
would not be impermissible dilution. 60 FR 11716 on March 2,1995. .
Again EPA says such aggregation could.. .be considered to be "part of the normal
process that results in the waste." 60 FR 11716 on March 2,1995, '
Because of the level of treatment provided by ABTs, it is unlikely
that segregation to avoid impermissible dilution would measurably
improve the quality of water discharged by a facility.
RESPONSE:
In the August 22,1995- Phase IV proposal, EPA discussed three options for ensuring'that
underlying hazardous constituents in decharacterized wastes were hot released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignltability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the v
President signed the Land Disposal Program Flexibility Act of 1996, which provides thai the
wastes in question are no longer, prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act - . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
* ' , '
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of
organics) remain prohibited unless treated pursuant by the promulgated method.
279
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Aggregation of process wastewaters within refinery and petrochemical processes is not
"impermissible dilution" subjectto the above-mentioned caveat. -
DCN PH4P020 ' .
COMMENTER EXXON COMPANY USA
RESPONDERSS , -
SUBJECT EQUV , .
SUBJNUM .020 - ' , -
COMMENT ' - .-..-.
C. ABT unit surface impoundments do not pose any significant risk ,
" . '. *
Exxon encourages EPA to consider API's comments on this matter. Because of the design
of ABTs, UHCs present in wastewater reach their concentration in the ABT unit outlet
almost immediately. Should leakage from an ABT unit occur, it would be of treated water.
Mixing in an ABT.unit is mathematically modeled as a Continuous Stirred TanktReactor or
Perfectly Mixed Flow Reactor. This type of model means that constituent composition
and temperature are the same throughout the entire reactor in every direction. EPA
, recognized the importance of being a well-mixed system in its definition of ABT units.
See 40 CFR 261.31 .b. If the ABT unit effluent is designated as BOAT technology and
ABTs approximate Continuous Stirred Tank Reactors, there should be no concern about
water leakage from ABT surface impoundments and EPA should not require tank-based
ABTs.
/ - .
E. Selection of ABT as BOAT for wastewaters alleviates monitoring
concerns, ensures proper unit operation and minimizes analytical costs
1. Matrix interferences in wastewater support selection of a
technology-based standard
Wastewater is a complex matrix of constituents. Analysis of wastewater is frequently
limited by "matrix interferences" which result from the inability of today's analytical methods
to distinguish between constituents at low concentration levels. EPA has set UTS at
the low ppm and ppb levels for numerous constituents, so it is reasonable to expect
"false positive" analytical results that exceed UTS: In order to avoid these concerns,
EPA should select a treatment technology such as ABT that has been demonstrated
to consistently meet UTS. -
2. Monitoring of indicator pollutants is sufficient to demonstrate the
efficacy of ABTs,
280'
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CWA permits typically rely on indicator pollutants to simultaneously represent several
constituents of concern in discharge permits. The molecular similarity of many
hydrocarbon compounds from a refinery and/or co-located petrochemical plant makes
the use of these "surrogates" a reliable method of ensuring acceptable water.
treatment. Exxon encourages EPA to consider relying on the indicator pollutants
measured in a facility CWA discharge permit as demonstrative o~f a'well-operating
AST unit. The substitution of CWA discharge permit parameters for a UTS analysis .
. will result in analytical sayings to industry facilities without compromising
environmental protection. . > , .
/ ' . ' '
V. EPA should limit the scope of the Phase IV LDR .
* ' i '
EPA is.not obligated by the Third Third opinion to consider additional requirements for -
non-hazardous storage or biological treatment impoundments. As outlined in III.C.l
and.IV.F above, the cost of promulgating additional controls to either stdrmwater or
treatment surface impoundments is prohibitive and the risk mitigated is minimal.
The high costs coupled with the low risk from these impoundments makes it critical
that EPA limit the scope of the Phase IV LDR.
A. The Third Third opinion requires that CWA and RCRA treatment
standards.be equivalent, not that CWA and RCRA management units be
equivalent. < .
Exxon strongly disagrees with EPA's proposed extension of the Third Third opinion from
treatment standards for hazardous constituents to "release standards" for impoundments
treating non-hazardous wastes. EPA apparently considers these "release standards" for
air, leaks and sludges the major component of the Phase IV LDR. This broad reading
clearly contradicts the court's intent, to say nothing of the unnecessary over-regulation of
treatment impoundments. For example, the court recognized surface impoundment
treatment by stating that r *''
... treatment of solid wastes in a CWA surface impoundment must meet RCRA
requirements prior to ultimate discharge into waters of the United States. 976 F.2d
; at 20. Emphasis added.- . , , '
The court makes several references to unliried surface impoundments, confirming their
continued use for management of non-hazardous decharacterized wastes. Again, the court stated
that ' - - ' ' ' .'.'
Following aggregation, the facilities sometimes place the combined stream in an unlined
surface impoundment as part of the CWA treatment train. These impoundments
do not meet RCRA Subtitle C standards and they are regulated solely under
RCRA Subtitle D. 976 F.2d at 20.
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The court again supported the continued use of surface impoundments by concluding that
.. 1 allowing temporary deposit of decharacterized wastes is a reasonable
accommodation [between RCRA and CWA] so long as complete circumvention of,
the treatment standards does not occur. 976 F.2d at 24.
finally, in summarizing whether CWA systems treating decharacterized wastes satisfy the
RCRA treatment standards, the court stated that
.'.. the result here is unique to CWA systems. Nothing herein permits the placement..
.of hazardous wastes or formerly "hazardous wastes which have not yet met, .
' section 3004(m)(l) treatment standards into non-Subtitle C surface
impoundments except in existing CWA treatment systems which ultimately treat
the streams to full section 3004(m)(l) standards. See 976 F.2d at 24. Emphasis
added.
i"
In summary, EPA is. not obligated by the Third Third opinion to promulgate "leakage
standards" for treatment impoundments managing non-hazardous wastes. EPA is required to
consider only equivalency between CWA treatment standards and RCRA treatment
standards. EPA should minimize the impact of the Phase IV LDR, which addresses
minimal risk, by. refusing to consider additional surface impoundment controls and
promulgating Option 1 under the Phase IV LDR.
RESPONSE: . _ ,
As explained by the Agency in the preamble to the LDR Phase III final rule, biotreatment
systems vary in performance both in general and as to specific constituents. The Agency
therefore is reluctant to designate ABT as BOAT. The Agency has data related to the
performance of ABT from only 10 facilities. The main reason for establishing ABT as BDAT
that was provided by commenters to the Agency, during the development of the final Phase III
ruiemaking, was the elimination of the compliance monitoring burden. The Agency does not
believe that reducing monitoring burden is an adequate j ustification for creating a new
technology-specific treatment standard. However, EPA did decide, in promulgating the LDR .
Phase III final rule, to reduce the monitoring requirements for decharacterized wastes that are
managed in a wastewater treatment system involving ABT. These wastes must be monitored
annually to ensure compliance with the treatment standards for underlying hazardous
constituents.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazafdous. As
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a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
'. emissions from surface impoundments (EPA proposed options, on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule dp riot
' apply to TC metal .wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or,-for underground injection wells, the Safe
Drinking Water Act. ' ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year'study to
determine any potential risks posed by cross-media transfer of hazardous constituents from .these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units,, if risks are in fact found that would warrant such
regulation. .'"
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DCN . PH4P021 . ' ' ...
COMMENTER Georgia-Pacific ,
RESPONDER :
SUBJECT EQUV -
SUBJNUM 021 ..:.'.
COMMENT . . . .' . ' . .' '
- x Support of AF&PA Comments: [.
' ' ' '
AF&PA has supplied comments which recommend .
the choice of Option 1 as the regulatory basis for the
Phase IV rule, should EPA determine that such .
regulations are required. As indicated above, .
. Georgia-Pacific supports this recommendation and, . .
hereby incorporates the AF&PA comments, into this ~
letter. These comments and the information
regarding compliance costs provided above
. demonstrate that the choice of either of the other two
options would provide no significant additional
environmental benefit but would very substantially , '
increase compliance costs. We urge the Agency to
make a reasoned choice in this matter, which is
supported by the overall low priority need for > , '
additional regulation and low degree of risk
represented by continued operation of the Pulp and
Paper Industry's good performing Clean Water Act
' permitted treatment systems. '-',-
RESPONSE
The Agency notes the commenter's support for the comments submitted by the American Forest
and Paper Association. . .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic)^ On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV. final rule will not promulgate provisions for managing leaks, sludges, and air ,
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
'43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
,-apply to JC metal wastes if the characteristic is removed and the wastes are subsequently treated
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. in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to/
determine any potential risks posed by cross-media transfer of hazardous constituents from'these
surface impoundments. The findings of this study, .begun by the Agency in April,' 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ,'.."-'"
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DCN ', PH4P021 .
COMMENTER Georgia Pacific
RESPONDER PMC
SUBJECT EQUV
SUBJNUM. 021 - ' ,- .
COMMENT - ,>..."
Each of the LDR Phase IV riilemaking options proposed by EPA would
place additional burdens on G-P. Option 1, the utilization of the
Phase III rule (as it was'proposed) to satisfy the RCRA equivalence
standard, would require significantly more testing and
recordkeeping in order to track the concentration of underlying"
hazardous constituents (UHCs) constituents in decharacterized waste"
streams! The anticipated costs for this testing activity are
$150,000-per year*
Option 2, the intermediate approach, would require the use of
additional treatment systems for. certain waste streams or the
modification of primary clarifiers at existing CWA .
permitted treatment plants. In addition, sludge treatment from
primary clarifiers will be required at some locations. Costs to
the Company would amount to $30 million to $50 million.
Georgia-Pacific does not favor,this option.
Option 3 would require substantial modification or replacement of
most of Georgia-Pacific's treatment systems. New in-mill sewer
systems would be required to separate decharacterized wastes from
other streams. Treatment would be required for the separated
streams. In some cases, the number of waste streams requiring
, /treatment of UHCs, their location or concern for protecting large
areas of the mill for the collection and treatment of
decharacterized wastes may make it impractical to provide treatment
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in separate units. This would require replacement or modification
of the mill's entire treatment system. Costs would be very high, .
in the range of. $ 1 OOto $400 million for the thirteen plants -
combined. This approach is not warranted, impractical and cannot . .
be legally required as described in comments filed by the American
Forest and Paper association (AF&PA). * "
. . To make Option 1 workable EPA must conclude that LDR requirements
are met by compliance with CWA permits. To the extent that UTS . .
values exist for substances for which no CWA perrnit limit has been .
set by the appropriate agency, EPA must rely on the professional"
judgment that such limits are not needed and LDR requirements have
been satisfied. In addition, for examination of waste streams with
regard to whether or not they meet hazardous waste characteristics, ' . < ,
'EPA must set^the reference'sample location for pulp and paper ,_
making facilities'at the mill process .unit boundaries outlined in , .
comments filed by the American Forest and Paper association
regarding the proposed Phase III rule.
RESPONSE V " ,k ' -
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655^ Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (6i FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions, from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are.subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . ; '.'...-
( '-..-. ' * :
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ,''- . .
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288
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DCN . PH4P022 . :
COMMENTER PhelpsDodge ..'*'
RESPONDER PMC > . .
SUBJECT EQUV
_ SUBJNUM 022 . . ' .
COMMENT .'''-'
1 EPA should clarify that the treatment or dilution of
characteristic hazardous wastes in RCRA-exempt treatment units is
permissible both to remove the characteristic and to
meet applicable LDR treatment standards (e.g., Universal Treatment
Standards). If this clarification is not made, decharacterized
. ' . wastes may .be required to undergo treatment beyond the ..
applicable LDR treatment standards: Because the treatment or
dilution to remove the characteristic may reduce the toxiciry of . . "
:. the hazardous.constituents below applicable LDR concentration
levels, any additional treatment requirements would be redundant
and unnecessary.
EPA should clarify the term "nonhazardous waste surface
, impoundment" as used in the context of EPA's cross-media release >
proposals. -
EPA also should explain how it intends to apply its equivalency
proposals to mining facilities. For example, EPA should clarify
whether tailing impoundments would qualify as "Clean Water
Act("CWA")-equivalent systems" or "nonhazardous waste surface
impoundments."
PDC supports EPA's proposal to determine LDR treatment standard ,
compliance for CWA systems at the ultimate point of discharge
(i.e., end-of-pipe). This same, approach should apply to .
CWA-equivalent systems. However, because CWA-equivalent systems
and other similar impoundments do not have an ultimate discharge,
such systems should be deemed to have satisfied applicable LDR
t treatment standards upon the demonstration that the systems
have applied CWA-equivalent treatment. There should be no
requirement to take samples from such systems in order to determine
compliance with LDR treatment standards.
.' ''/'-. ' ^
With respect to EPA's proposals regarding potential cross-media
releases from Surface impoundments managing decharacterized wastes,
PDC strongly supports Option 1. Option 1 correctly defers to
existing and future federal, state, and local regulatory programs
that are specifically designed to address leaks, sludges, and
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potential air emissions from Surface impoundments.
Option 2, on the other hand, not only would ignore the statutory
requirement under RCRA to ensure accommodation with the CWA, but
also would result in duplicative and therefore unnecessary ,
regulation of nonhazardous wastewater management systems.
II. Treatment or Dilution to Remove a Hazardous Characteristic
Should Satisfy LDR Requirements if Treatment Reduces Any Underlying
Hazardous Constituents to Levels. Below the Universal Treatment
Standards.. :
An apparent assumption underlying EPA's proposal to adopt
"equivalency" requirements for CWA and CWA-equivalent systems
managing decharacterized wastes is that treatment to remove the '
hazardous waste characteristic does not necessarily suffice for
LDR treatment purposes even if the wastes, after removal of the
characteristic, meet the applicable treatment standards (i.e., the
Universal Treatment Standards ("UTS")). 60 Fed. Reg. at 43,655. -
Thisassumption, however, is not required or supported by the,
decision in Chemical Waste management v. EPA ("CWM"), 976 F;2d 2
(D.C. Cir. 1992), cert, denied, 113 S. Ct. 1961(1993). Rather, the
CWM decision arguably suggests that the point at which a
decharacterized waste must meet the UTS is after treatment to ,
remove the characteristic. Consequently, if the waste meets the UTS
after decharacterization, no further LDR requirements should '
apply. It is illogical and unnecessary from an environmental and
human health perspective to require additional'treatment of a
decharacterized waste that already meets the applicable LDR
treatment standards. In such situations, there would be no standard
available to evaluate the effectiveness of
any further treatment. Consequently, EPA's proposals essentially
result in .treatment for the sake of treatment without any
environmental or human health benefit resulting from the
treatment
With respect to dilution or treatment to remove the hazardous
waste characteristic, the CWM court stated that under RCRA,
'"dilution of characteristic hazardous wastes may
constitute [acceptable LDR] treatment, but only if no hazardous
constituents are present following dilution that would endanger
human health or the environment." 976 F.2d at 7 (emphasis added).
The court implied that compliance with the UTS should be determined
after treatment or permitted dilution, not at the point of
generation. The CWM court also stated that "where dilution
to remove the characteristic meets the definition pf treatment
under section 3004(m)(l), nothing more is required." 976 F.2d at 23
290
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. (emphasis in original). This statement suggests that the . .
court understood that, in certain instances, dilution or treatment
to remove the characteristic would satisfy the LDR treatment
standard. PDC believes that these instances include situations in
which characteristic wastes from related processes are routed to
elementary neutralization units or other exempt treatment units for
removal of the hazardous waste characteristic. If during removal
of the hazardous waste characteristic, the concentrations of
underlying hazardous constituents are reduced (i.e., the toxicity
of the hazardous constituents are reduced), this should satisfy
the applicable LDR treatment standards. . -
The fact that treatment or dilution to decharacterize a waste may
reduce the concentrations of underlying hazardous constituents
below the applicable standards (i.ei, UTS), is consistent
with EPA's interpretation of the principal holdings in CWM with
respect to characteristic wastes. According to EPA, the CWM ,
decision requires persons managing decharacterized wastes
in centralized wastewater management units to be able to
demonstrate "that hazardous constituents are reduced, destroyed, or
immobilized to the same extent as they would be pursuant
to otherwise-applicable RCRA treatment standards. " 60 Fed. Reg. at
43,656 (emphasis added).PDC believes that the "reduction" in the
concentration of underlying hazardous constituents during
deactivation should be sufficient to satisfy the LDRs. .
PDC is concerned with EPA's implication that decharacterized
wastes, even if the wastes are treated to remove the hazardous
waste characteristic and the treatment reduces the concentration of
any hazardous constituents below the concentrations in the UTS,
cannot be land disposed until underlying hazardous constituents are
destroyed or immobilized. 60 Fed. Reg. at43,656. This statement
suggests that if decharacterized wastes are initially^ managed
in RCRA-exempt units, such as elementary neutralization or totally
enclosed treatment units, and management hi the unit not only
removes the hazardous waste characteristic, but also causes
the waste to meet the UTS, the waste still will need to be further
treated to ensure that underlying hazardous constituents present
before the initial treatment are either immobilized or treated ,
to non-detect. This requirement is insupportable and may require
decharacterized wastes to be treated beyond even the '
constituent-specific concentrations established in the UTS.
PDC therefore requests that EPA amend its proposed Phase III and
Phase IV LDR proposals to provide that if treatment of a waste to
remove the hazardous waste characteristic causes the waste to meet
291
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the UTS, the waste will be deemed to have met the LDR
treatment standards (especially when such standards are set in
terms of constituent concentrations) and can be land disposed, -
(whether in 'a CWA system or not) without any further legal
requirements; _' :
.V. Zero-Discharge Mining Impoundments, Including Tailing
.Impoundments. Should Generally Qualify as CWA-Equivalent Systems.
EPA states that the term "CWA treatment system" includes
CWA-equivalent systems as well as other nonhazardous waste surface
impoundments. 60 Fed. Reg. at 43,657. It is unclear in the proposed
rule .what is meant by "other nonhazardous waste surface ;
impoundments." For example, does the term apply to any surface
impoundment used to manage decharacterized wastes, regardless of
whether it ultimately discharges to a "water of the United States"
or undergoes CWA-equivalerit treatment? PDC requests that EPA
clarify the term "nonhazardous waste surface impoundment."
It also is unclear whether a tailing impoundment that does not
discharge to "waters of the United States" would qualify as a
"CWA-equivalent system" or "nonhazardous waste surface impoundment"
for purposes of EPA's proposed Phase IV LDR rule. PDC believes
that such impoundments should qualify as "CWA-equivalent systems"
since they are subject to stringent federal effluent discharge
limitations under the CWA that in some instances may require
zero-discharge. EPA should clarify how it intends to apply its
equivalency proposals to mining facilities.
VI. Compliance With UTS for Zero-Discharge Facilities Should Be
Based Solely oh the application of CWA-Equivalent Treatment.
The Phase III and Phase IV proposals envision that a
zero-discharge facility, such as availing impoundment, is
permitted to receive decharacterized wastes that exceed the UTS at
the point of entry into the facility. However, it is unclear at .
what point the determination of compliance with the UTS should be
made. In the proposed Phase HI LDR rule, EPA clarified that
compliance with UTS would be determined at the end-of-pipe for
surface impoundments that ultimately discharge to "waters of the .
United States" or to publicly-owned treatment works("POTW"). See
60 Fed. Reg. at 11,710. This same general concept should apply to .
CWA equivalent and other nonhazardous wastewater treatment systems.
In other words, the point of determining compliance with the UTS
should not be made at the point of entry into the treatment train
or surface impoundment. However, because of the difficulty of
testing for compliance with UTS without a point of discharge from a
facility, PDC believes that as long as a zero-discharge facility is
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able to demonstrate that it has applied CWA-equivalent
treatment, this demonstration should be sufficient to satisfy the.
LDRs, Consequently, PDC requests that EPA clarify that
zero-discharge facilities which receive decharacterized wastes
that exceed the UTS at the point of entry are deemed to satisfy the
applicable LDR standard i.e., the UTS) if CWA-equivalent treatment
has been applied. .... '. - '
VII. Option 1 Should be Adopted Because it Correctly Defers to
Existing and Future Federal, State, or Local Regulatory Programs
for Addressing Cross-Media Releases From CWA or CWA-Equivalent
Surface Impoundments.
EPA outlines three options to address the risks posed by
cross-media releases of hazardous constituents from surface
. impoundments used in CWA or CWA-equivalent treatment systems.
Option 1 would rely on the end-of-pipe'approach established in the
proposed Phase HI LDR rule to meet the treatment equivalency
requirement established in CWM. PDC strongly supports this option,
primarily because it is consistent with the CWM decision and would
not impose far-reaching RCRA control requirements on facilities
that do not actually manage "hazardous waste." Option 1 also
correctly defers to existing and future federal, state, or local
regulatory programs that are designed to adequately address
cross-media releases from surface impoundments. The adoption of
duplicative requirements is unnecessary. .
With respect to potential releases to groundwater, PDC believes
1 that state groundwater protection programs can be relied on to
prevent excessive releases from CWA or CWA-equivalent surface
impoundments. For example, Arizona (in which PDC operates
several facilities) has adopted a, comprehensive aquifer protection
permit program that specifically applies to both new and existing
surface impoundments, including surface impoundments used as part
of a CWA system. A.R.S. § 49-241.B.1. This permit program requires
affected facilities to ensure that they are designed, constructed,
and operated to ensure the greatest degree of discharge reduction -
achievable through .application of the best available
demonstrated control technology (e.g., liners, leak detection
systems). A.R.S. § 49-243.B. 1. Affected facilities also are
required to ensure that aquifer water quality standards are met at
die applicable point of compliance (generally established at a .
point in the aquifer immediately down gradient of the facility).,
A.R.S. § 49-243.B.2. Arizona's aquifer water quality
standards generally are based on the primary drinking water maximum
contaminant levels ("MCLs")adopted by EPA under the federal Safe
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" Drinking Water Act. A.R.S. § 49-223.A; Ariz, Admin. Code
("A.A.C."); Title 18; Chapter ,11, Article 4. Aquifer water quality
standards also maybe established for pollutants for which MCLs
have not been established or for which the Arizona Department of
Environmental Quality finds that the MCL is inappropriate as
an aquifer water quality standard. A.R.S. § 49-223. B. Finally,
several narrative aquifer water quality standards have been
established including a prohibition on discharges to aquifers
that would endanger human health. A. A. C. Rl 8-11 -405
New Mexico (in which PDC also operates several facilities) also
has a comprehensive groundwater protection program. New Mexico's '
program requires any person who discharges into ground water, >
directly or indirectly, any contaminant listed in the ground water
quality standards or any toxic pollutant t
-------
source"beyond the "solid waste boundary." 40 C.F.R. § 257.3-4.
"Contaminate" means to introduce a substance that would cause
either (1) the concentration of that substance in the
groundwater to exceed the maximum contaminant levels specified'in
Appendix I to 40 C.F.R. Part 257, or(2) an increase in the
concentration of that substance in the groundwater where the
existing concentration of that substance exceeds the maximum
contaminant level specified in Appendix I of 40 C.F.R. Part 257.40
C.F.R. § 257.3-4(c)(2). "Solid waste boundary" means "the outermost
perimeter of the solid waste (projected in the horizontal plane)
as it would exist at completion of the disposal activity." 40
C.F.R. § 257.3-4(c)(5). .
With respect to potential releases of hazardous constituents to
sludges in CWA or CWA-equivalent surface impoundments, PDC believes
that the appropriate approach is to use EPA's treatability group
principle. In other words, once the owner or operator of a CWA
or CWA-equivalent surface impoundment decides to remove sludge from
the impoundment for land disposal elsewhere, this should be
considered as a new point of generation, and the sludge should be
reevaluated to determine whether it is subject to the LDRs. In .
addition to the treatability group principle, removed sludges are .
regulated under state and federal hazardous and solid waste ,
management programs.
As recognized by EPA (see 60 Fed. Reg. at 43,659-60), PDC believes
that the federal Clean Air Act ("CAA") provides sufficient control
over potential air emissions from CWA or CWA-equivalent surface
impoundments that manage decharacterized wastes. The proposal
to require additional air-related requirements would violate RGRA §.
1006(b) which requires EPA to accommodate CAA requirements.
VIII. EPA Proposal (Option 2) to Adopt "Equivalency" Requirements
for Sludges. Leaks, and Air Emissions from CWA and CWA-Equivalerit
Surface Impoundments is Inconsistent with the Decision in C WM and
Would Ignore Accommodation with the CWA.
EPA freely admits in the preamble to the proposed Phase IV LDR
rule that the court in C WM did not explicitly require EPA to .adopt
management requirements for hazardous constituent releases from CWA
or CWA-equivalent surface impoundments. 60 Fed. Reg. at43,656.
Rather, the focus of the court was on the status of the waste
stream being managed in and eventually discharged from the surface
impoundment, and not on the characteristics of the surface
impoundment. 60 Fed. Reg. at 43,656. EPA also points out that the
CWM court did not address the treatability group principle by EPA
.in the Third-Third LDR rule (see 55 Fed.Reg. 22,661-62 (June 1,
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1990). Under the treatability group principle, wastewater
.treatment sludges not exhibiting a characteristic are not
prohibited wastes even though they may derive from prohibited
wastes.,
Notwithstanding the lack of explicit direction from the court, EPA t .
is proposing to adopt extensive controls for sludges, leaks, and
air emissions from CWA and CWA-equivalent surface impoundments. EPA
supports this decision by arguing that the thrust of the . -
CWM decision was to assure that LDR treatment requirements are not
thwarted by cross-media transfers of untreated hazardous
constituents, whether by dilution or by escape from
treatment units. 60 Fed. Reg. 43,656. These concerns, however,
arguably were! not raised in the context of a CWA or CWA-equivalent
surface impoundment where RCRA requires accommodation with the CWA.
EPA also notes that the CWM court distinguished between
temporary placement of wastes in surface impoundments and permanent
disposal. This distinction, however, focused on the requirements
applicable to wastes placed in different types of '
surface impoundments and not on the characteristics of the surface
impoundments. ' "
EP A's proposal also would result, in many instances, in ,
duplicative regulation at the state and federal level. For '
instance, as noted above, both Arizona and New Mexico, the primary
states in which PDC maintains operations, have extensive
groundwater protection programs that apply to surface impoundments
managing decharacterized wastes. Although EPA indicates that it
would attempt to avoid duplication with similar federal, state, or
local requirements, this would be very difficult to actually apply ,
on a site-by-site basis. Coordination between already existing
programs and RCRA imposed controls would require v
difficult judgments regarding the similarity of the existing
programs to RCRA controls and whether the programs are as stringent
as RCRA controls. Ultimately, a site may be required in
many instances to comply with both the controls established under
Phase IV and other applicable state or federal requirements.
PDC therefore urges EPA not to adopt specific control requirements
for sludges, leaks, and air emissions from CWA or CWA-equivalent
surface impoundments. Rather, EPA should rely on other current and
future federal and state programs (i.e., Option 1) to address
these issues. The Option 2 proposals not only would ignore
accommodation with the CWA, but also would impose RCRA requirements
on units that do not manage "hazardous waste.'\
DC. PDC Concurs With EP A's Decision Not to Recommend Option 3.
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Option 3 would require that decharacterized wastes be treated to
meet UTS before entry into surface impoundments. However, because
; of the high costs to affected industries and the lack of
accommodation with the CWA, EPA is not recommending this option.
PDC concurs with EPA's decision. Option 3 is directly inconsistent
with the decision in CWM, which requires at least some
accommodation between RCRA and the CWA. As noted by EPA,
this option would destroy the accommodation between the CWA and
RCRA upheld by the CWM court. Option 3 also would force industry to
manage large amounts of wastewaters in prohibitively expensive
tanks or other similar systems, , .
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic,of ignitability, corrosivity,
reactivity, or toxicity when generated but are ho longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the ;
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act - . ,
**
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,-1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
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DCN PH4P024 ' ' - - . '
COMMENTER Union Camp Corporation .
RESPONDER SS . !
SUBJECT EQUY . . ' ' .
COMMENT Introduction and Summary The Phase IV Rules consist largely of
EPA's preamble discussion and an analysis of three proposed
options for addressing the issue of RCRA treatment equivalency '
i for wastes that are decharacterized by dilution and subsequently '
treated in CWA surface impoundments. Decharacterization by other i
means then dilution is not subject to proposed management < ,
standards (2.4 and 7.4, Technical Support Document, July 1995)
Option 'l holds that the Phase III rule (end-of-pipe standards).
satisfies equivalency requirements noted by the court in
Chemical Waste Management, Inc. et.al. v. EPA,.976 F 2d. Option
.2 would impose additional Land Disposal Regulations (LDR) ,
requirements on CWA impoundments. Option'3 would preclude use of
CWA impoundments to perform RCRA equivalent treatment. EPA
rejected Option 3 and stated that it is "neutral between the .
first and second options" 60 Fed. Reg. 43659, but seeks comment '
' on the three options. EPA has asked for comments on which of the
three proposed options for a Phase IV rule it should choose, and
for specific comments on how the chosen option might need to be
modified. Union Camp Corporation is very concerned about the
imposition of Phase IV requirements on our decharacterized
\ wastewaters and surface impoundments. Because of the volume,of
waste streams and the size of impoundments impacted, it was very
worthwhile for our company to understand in great detail the
impact the proposal would have on our pulp and paper mills and
chemical operations. From our review we believe that the waste
streams most impacted in our facilities will be the chemical
pulp mill discharges containing black liquor, bleach plant
discharges, turpentine separation wastewaters and chemical plant
waste streams containing methanol. Even though the proposed
Cluster Rule or other Clean Air Act rulemaking will
significantly impact the disposition of these wastes in the next
several years (Cluster Rule is imminent), Phase IV could impose
another significant body of regulation on top of these
requirements. / . .
RESPONSE '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
Underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
298
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wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of'1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards^for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. , '.--.'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to '
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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DCN PH4P024 ,
CQMMENTER Union Camp Corporation .' . - .
. RESPONDER SS
. SUBJECT EQUV . . .
COMMENT . Therefore, Union Camp's comments on the Phase IV proposal are
consolidated around the three basic contentions and presented in
the following order. I. Option 1 is the correct option for EPA
to choose. We believe that the legal arguments made by AFP A, CMA
, and others are compelling, and will be paraphrased here; We will .
present reasons why we believe that Option 2 includes ' .
L unnecessary regulation. II. Option 3 is unnecessary, extreme ; ''
and must be rejected. III. The Pulp and Paper and related
industry do not pose a significant risk and therefore Option 2
must not be applicable to this industry. We have additional
' concerns which did not fit into the body of the above arguments
and are included in a section titled additional concerns
(Section IV).
RESPONSE '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the x
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, cprrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the,
^ President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
' wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes,(61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
1 However, the Land Disposal Flexibility Act does mandate EPA to undertake a.5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in. April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
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DCN PH4P024 " :
COMMENTER Union Camp Corporation
RESPONDER SS ; .
SUBJECT EQUV , . .
COMMENT G. EPA Correctly Avoids Regulatory Duplication by Deferring to
Other Federal Rules That Will Protect Human Health and the
Environment Such as the Proposed MACT Requirements for the Pulp
and Paper Industry. EPA stated in the Phase IV preamble that "to
avoid duplication with other requirements, EPA would defer to
other federal rules which establish controls addressing the same
. 'situations." 60 Fed. Reg. 43660. EPA is correct to do so for at
least two reasons. First, RCRA § 1006(b)(l) requires that the
Administrator "shall integrate all provisions of [RCRA] for
purposes of administration and enforcement and shall avoid
duplication, to the maximum extent practicable, with the .
appropriate provisions of the Clean Air Act...." 42 U.S.C. §
6905(b)(l). Second, EPA recognizes that certain "inefficiencies
and confusion could occur if Option 2 controls were applied and
soon superseded by upcoming Clean Air Act ("CAA") standards" as
in the case of the pending MACT standards for the pulp and paper
industry. Id. It would make no sense for EPA to impose LDR air
emissions standards that are possibly inconsistent with those
now being considered by EPA's Office for Air and Radiation.
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Thus, EPA's proposal to defer to such rules honors both its
. statutory requirements and the concept of practical regulation. ' .
The Pulp and Paper Industry will soon be under the new
requirements of the Cluster Rule which established Maximum
Achievable Control Technologies, under the Clean Air Act
Amendments of 1990, and Effluent Guidelines, under the Clean
Water Act. Requirements will include process changes, management . .
. systems, pollution control technologies and environmental . - .
.testing to address the presence of volatile organics,
chlorinated organics, and priority pollutants in the.air .
" emissions and wastewaters generated by this industry. MACT
requirements will impose restrictions on the emission of
hazardous air pollutants from pulp mills and bleach plants.
Effluent guidelines for the Pulp and Paper Industry will impose ;
' restrictions on the in-plarit waste streams and end-of-pipe
discharges. Union Camp operates chemical pulp mills and bleached
kraft mills which will be impacted by the final Cluster Rule. As .
well our Chemical Division and Bush, Boake, Allen subsidiary
operate chemical plants which have their MACT and effluent
guidelines. With this in mind we have the following concerns.
RESPONSE . .
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that "
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air.
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do"not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe .
Drinking Water Act ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may >
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation..
302
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303
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,DCN . PH4P024 , ' . . '
COMMENTER Union Camp Corporation
RESPONDER SS , r
SUBJECT EQUV. :
COMMENT C. EPA Should Tailor its Phase IV Rule Decision to Each
i «
Industry Studied. Though we have stated our contention that
Phase IV,rules are necessary, a risk assessment makes sense when
applied to valid data. EPA has crafted industry-specific RCRA .
rules for many years. See, e.g., 40 C.F.R. § 261.4 , . '
(industry-specific exclusions from definition of solid waste)
and attempted to follow that practice in the Phase IV
rulemaking. Industry-specific data collected for development of ,
effluent limitations guidelines by EPA's Office of Water was
cited in Regulatory Development Document 60 Fed. Reg. 43657. EPA
should have been able to assess risks on an industry-specific
basis, but it appears from the preamble that EPA did not
. consistently. For example, EPA's discussion of risk estimates :
for sludge focuses exclusively on "estimated sludge
concentrations in the OCPSF industry." 60 Fed. Reg. 43659. EPA , '
estimated that potential cancer health risks in the OCPSF
industry exceeded the Agency's 10-5 threshold. It apparently "*
applied these results to each of the five industries studied,
because the Agency does not mention vastly different results it
obtained for them. 60 Fed. Reg. 43659. EPA's reliance on only ,
the OCPSF sludge risk estimates to judge whether LDR rules are
warranted for the pulp and paper and other industries is
erroneous. For one reason, EPA's "sludge data" for the OCPSF ,
industry was not really data at all; rather it was calculated ,
based on a series of assumptions concerning constituent .
partitioning factors and sludge generation rates.2 EPA should
, not rely on estimates when it has direct measurement data
available. For another reason, industry specific data for pulp
and paper and other industries show that releases from sludge
pose no significant health risks. ,
RESPONSE .,.'..-
In the August 22,1995 Phase FV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
304
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a result^ on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the,wastes are subsequently treated
in a unit that is regulated by the Glean Water Act or, for underground injection wells, the. Safe
Drinking Water Act. '- , ' -''.' '"',..
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year,study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The. findings of this study, begun by the Agency in April, 19,96, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ,
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DCN . PH4P024 . ' , . . '
COMMENTER Union Camp Corporation .
RESPONDER SS ,
SUBJECT EQUV .
COMMENT E. The Risk Assessment Program Conducted by NCASI Shows That
.Possible Releases of UHCs From Paper CWASIs and Wastewater
Treatment Sludge do not Present Significant Risk to Human Health .
and the Environment NCASI Wastewater Sampling and Analysis
Program. In 1993 NCASI undertook a 10-mill sampling and analysis
program to investigate how various LDR regulatory options might
affect the pulp and paper industry. NCASI selected 10 mills to
represent a wide range of paper production types and wastewater
treatment strategies. The mills studied included three bleached
kraft facilities, an unbleached kraft mill, a sulphite mill* a
de-ink tissue and a de-ink newsprint mill, a wastepaper board-
and wastepaper corrugated medium mill, and a groundwood
newsprint mill. Wastewater samples were taken from the influent j _.
and effluent of the active treatment facilities. For mills that
use aerated basins following a primary clarifier, samples were
taken from the effluent of the primary clarifier and the .
effluent of the aerated basin or, if so equipped, from the
effluent of the settling pond. For mills with activated sludge
systems, samples were taken from the effluent of the primary.
clarifier and from the effluent of the secondary clarifier.
Samples were collected twice per day for three days per week for
a three weeks. The samples analyzed and the analytical results
represent a three day composite sample, for each of three weeks.
In all cases, even the high-risk scenario using the
ultra-conservative DAFs of 6 and 12, the individual lifetime-
cancer risk estimates for the baseline case (i.e., no additional
Phase IV LDR restrictions) are all less than 10-5 and range from
10-6 to as high as 10-10. All hazard quotients are well below 1. ,
Thus, using the EPA's 10-5 significant-risk threshold, we
conclude that releases of UHCs from possible surface impoundment
leaks or wastewater sludge pose no significant risk to human
health or the environment. The data collected by NCASI in its
above referenced 10-mill wastewater sampling and analysis
program and from NCASI's 150-mill waste characterization
, database, substantially broaden and update the effluent
, limitations data on which EPA relied for its initial risk
assessment. Thus, EPA should have substantial confidence in the
risk assessment conclusions based on these new data. These ' .
analyses, performed using the same techniques employed ,by EPA,
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demonstrate that the individual lifetime cancer risks for pulp , , :
. , and paper industry wastestreams are more than ah order of
magnitude ;below-the 10-5 significant risk level used by EPA for
this rulemaking. Similarly, the hazard quotient for each of the ."
constituents found in these wastestreams is orders of magnitude .
below 1. Thus, EPA should now conclude, that CWA end-of-pipe . " r
controls for these-wastestreams are all that is necessary for . , " -
the pulp and paper industry to achieve RCRA equivalency. Any
additional controls.on these wastestreams would simply ;
constitute treatment for its own sake and would contravene the , .
teachings of HWTC III and CWM. ,--..'. \
RESPONSE - ,,'.';.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President.signed the Land Disposal Program Flexibility Act of 1996, which provides that" the
wastes in questipn are no longer prohibited from land disposal once renderedmonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TG metal wastes in today's rule do not
apply to TG metal wastes if the characteristic is removed and the wastes-are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
, ' " ' x ' -
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
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DCN . , PH4P024 . - ,
COMMENTER Union Camp Corporation
RESPONDER SS
SUBJECT EQUV ' . . . . '
COMMENT C. Test Method 25D Produces Artifact VOCs That Bias Test
Results. UCC understands through its association the AF&PA that
.test Method 25D produces artifact VOCs that bias test results.
In summary the AF&PA has told EPA in its Subpart CC comments,
that.Method 25D is seriously flawed because the method creates
.VOCs where none otherwise exist. Considering the inherent flaws
in this test method UCC believes, it not prudent to incorporate
Method 25D into any possible Phase IV controls. UCC has also
learned that Method 25D exaggerates the amount of volatile ,
organics in particular wastestreams. This would results in
unnecessary regulation, when these wastestreams would not pose a >
risk from volatilization of organic compounds under ambient
temperatures. This method should not be used for the Phase IV
control until these issues can be resolved. ETC's "suggestion"
.about banning purportedly nonamenable wastes is an example of
proof by assertion. They offer no data. For example, ETC claimed
that" ICR waste streams nonamenable to biological treatment'" v
include "ICR wastes with water insoluble and highly volatile'
F039 constituents..'.." 60 Fed. Reg. 11717-18 (March 2,1995).
To illustrate that generalizations such as this are just plain
- wrong, NCASI analyzed data it gathered during original research
on biodegradability to determine whether water solubility and
volatility are likely to have any effect on amenability of
compounds in surface impoundments. NCASI began by conducting a
two-phase study to gather data concerning the biological
treatability of 14 organic compounds. In the first phase of this
study NCASI determined biodegradation rate constants for these
. compounds using bench-scale reactors. In the second phase of the
study the fate of individual compounds was estimated during
fullscale treatment using the NOCEPM model, with the bench-scale
biodegradation rate constants entered as a model input. Complete
details about this study appear in Summary of Results of
Biotreatability Study of Selected BOAT Compounds NCASI Technical
Bulletin which is being submitted in AF&PA LDR Phase IV comment
letter. . ' .
RESPONSE . ./ ,- '
In me August 22,, 1995 Phase IV proposal, EPA discussed three options for ensuring that
.underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
308
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regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On.March 16,1996, the
President signed the. Land Disposal Program Flexibility Act of 1996, which provides that the -
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As "
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
1 emissions from surface impoundments (EPA proposed options on August 22, 1995 ,(60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's"rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
, in a unit that is regulated by the Clean Water Act or, for .underground injection wells, the Safe
Drinking Water Act. . ...
However, the Land Disposal Flexibility Act does mandate. EPA to undertake a 5-year study to
.determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ,
309
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DCN .' PH4P024
COMMENTER Union Camp Corporation
RESPONDER SS
SUBJECT EQUV
COMMENT J. UCC agrees with the Agency's proposal to trigger additional
requirements for impoundments only when leakage poses a risk to
receptors, but believes the appropriate levels of contaminants - ,
. in groundwater should be based on site specific factors The
Agency has proposed that further actions beyond monitoring would
not be required unless a drinking water exceedence is detected
by monitoring. UCC agrees that tangible evidence of a release
which is of concern should precede capital and operating cost
increase. K. UCC agrees with the Agency's proposal to defer
leakage issues, where a facility is subject to other programs
addressing groundwater quality. UCC also suggests that where an
impoundment system has been deemed to not require any action,
that the Agency also defer in those cases. UCC agrees, as the
Agency notes, that many states have groundwater protection
programs that include groundwater monitoring and corrective
action. The Agency has stated that, to the extent that state
programs require groundwater monitoring and corrective action
that include the UTS constituents of concern (or can be modified
to cover those constituents) the Agency would defer to those,
programs. UCC believes that where.a.State program has made a
determination that, due to site specific conditions (impoundment
construction, local geology, groundwater usage, etc.), .
monitoring or corrective action is not required, the Agency
should defer to such a program, irrespective of the UTS
constituent levels in the impoundment Such a site specific
determination must, by definition, be protective of human health
' and the environment as that is the bases for such State . '
groundwater protection programs in the first place. If actions
are not required under such programs, this regulation should not
trump those programs. L. UCC agrees that an annual assessment
of wastewaters managed in impacted units is reasonable, but
questions the need for four samples for each sampling event. The
Agency has proposed to use annual sampling of the waste waters in
the surface impoundment to determine if regulated constituents
.are present at concentrations that exceed the trigger level. The
Agency has proposed that determinations of whether or not a
1 trigger level has been exceeded would be calculated from a
minimum of a four-sample set on a four-time per year basis (the
Agency notes quarterly). The only basis UCC can determine for
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k requiring four samples per event is that its origin is in the
finalized Subpart CC regulations. The logic under that rule does
not hold for wastewaters treated in impoundments (that the
wastes are potentially variable). The variability of constituent
concentrations in. wastewaters in impoundments is slight at best,
especially on a short-term sampling event, and requiring four
samples per event is unnecessarily burdensome. M. UCC agrees
with the Agency's assessment that alternatives to groundwater
monitoring should be allowed where site specific conditions '
warrant it and requests that the Agency address those types of
units prior to finalization of the Phase IV regulations. EPA" has .
correctly assessed that there are situations where alternatives
to groundwater monitoring should be allowed when gfoundwater
monitoring is not practicable or would riot detect early
releases. The Agency has noted that they are preparing a
rulemaking to deal with those situations, but the inference is
that that rulemaking will follow this one rather than being. .
developed concurrently. Subjecting facilities to groundwater
. monitoring that is ineffectual in advance of the referenced
rulemaking is an unnecessary economic burden. EPA should
delineate which types of units it envisions falling into that
category prior to finalizing this rule and defer the monitoring
provisions finalized under this rule for those units. N. UCC
believes that the Regional Administrator should be able to allow
alternatives to corrective action based on site specific
factors. The Agency has set up the leakage requirements such
that a specific groundwater monitoring result will dictate
mandated corrective'action. There are bound to be situations
which may not warrant any action, such as situations in which
-there is no receptor down gradient, which should be considered
in determining if capital expenditure is necessary. Further
consideration for "no action" would apply in situations, where ;
groundwater in vicinity of C WASIs is not usable for potable
water use due to local elevation of natural constituents (some
of which may be UHCs) or to low water yield, Since the Agency's
rationale for not allowing "no action" as an option is that
these provisions are self-implementing, UCC requests that the
Agency create a provision which allows, with Administrator
review and concurrence, a "no action" option. Subjecting that
particular provision to Agency review should give the'Agehcy
assurance that the option would only be implemented in
situations where it is the appropriate option. O. UCC supports
public participation in the remediation selection process as
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long as limits are placed on the process timing such that '
remediation is not unduly delayed. The Agency has included a
public participation clause in the proposed process of remedy
selection and UCC supports that portion of the proposal.
However, where such participation results in shutting down the
process of getting requisite remediation underway, the Agency; .
needs to place reasonable bounds on the process. .
RESPONSE . . . . - ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the ;
environment via leaks, sludges, and air emissions from surface impoundments in systems,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TG metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media .transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ,
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DCN PH4P024 '
COMMENTER Union Camp Corporation
RESPONDER PMC . . .
SUBJECT .EQUV ' '. ' ' :'
SUBJNUM 024
COMMENT ' .-.'. ''
I. Option 1 is the correct option for EPA to choose. .
A. The CWM Court Held That End-of-Pipe Treatment StandardsTor
CWASIs Satisfy RCRA LDR Requirements.'
The CWM Court held that allowing placement of decharacterized
wastewater in CWASIs represents a reasonable accommodation of CWA
and RCRA objectives, and therefore satisfies RCRA LDR requirements,
% as long as material exiting CWASIs is treated to the sarnie
extent required by RCRA. See 976 F.2d 2,23. The Court fully
appreciated that decharacterized wastewater is held,temporarily in
unlined CWASIs and eventually exits or "discharges" into navigable
waters of the United States or publicly owned treatment works
("POTW"). Id. at 20,24. The Court also recognized that levels of
,pollutants in decharacterized wastewaterpassing me exit point, or
"end-of-the-pipe," are regulated by National Pollution Discharge
Elimination SystemfNPDES") permits. Id. at 20.
With full knowledge of how CWA systems operate, the Court required
unlined CWASIs to demonstrate end-of-pipe-equivalence to comply
with RCRA -- nothing more. The Court articulated its position at
two points in its opinion, in each case making it,clear that
-,. end-of-pipe
treatment standards satisfy statutory LDR requirements:
1. [Decharacterized] wastes may be placed in... impoundments
that are part of an integrated CWA treatment train. However, in
order for true "accommodation" to be accomplished, we find that
RCRA treatment requirements cannot be ignored merely because CWA
[sic] is implicated.... Thus, we hold that, whenever wastes are
put in CWA surface impoundments before they have been treated
pursuant to RCRA to reduce the toxicity, of all hazardous
constituents, these wastes must be so treated before exiting the
CWA treatment facilities. In other words, CWA facilities must
remove.the characteristic and decrease the toxicity of the waste's
hazardous constituents to the same degree that treatment outside a
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CWA system would. , -
Id. at 22 (emphasis added). .-,-'...
2. [DJecharacterized waste [containing hazardous constituents] may
be placed in a surface impoundment if and only if the resulting CWA
treatment fully complies with §3004(m)( 1). In other words, the
material that comes out of CWA treatment facilities that employ.
- surface impoundments must remove the hazardous constituents to the .
same extent that any other treatment facility that complies with
RCRA does. ' .
Id. at 23 (emphasis added).
As noted above, the CWM sanctioned the Option I approach by making
it clear that EPA could meet its obligations under RCRA §, 3004(m),
by providing that the § 3004(m) standard must be met at the CWA
system discharge point. EPA is not required to impose the same
treatment standards on wastes managed in CWA systems as those that
are managed elsewhere; it is simply obliged to ensure that wastes
managed in CWA systems meet the §3004(m) minimize threat standard
at the CWA discharge point. The CWAs permit or pretreatment
requirements, which require, at the least, application of the best
practicable control technology currently available(CWA § 301'(b)),
supplemented by § 268.48 standards for constituents not covered by
the CWA requirements, clearly meet that standard.
The court's litmus test for equivalency is that treatment must
meet the requirements of the statute.
The court held that: "the hew CWA dilution permission is valid
where the waste is decharacterized prior to placement in a CWA
surface impoundment and subsequently treated in full conformity,
with section 3004(m)(l) standards." 976 F.2d at 19.
The end-of-pipe standards proposed in Phase III fully satisfy that
standard, and EPA should go no further. . "
B. The CWM Court Did Not Require LDR Regulations Addressing the
Sludge That Forms In CWASIs.
The Court made an informed decision not to require EPA to
promulgate special LDR regulations.addressing sludge that is formed
in CWASIs. Instead, the Court held that sludge generated from the
treatment of decharacterized wastewater in CWASIs is covered by
RCRA Subtitle C only if the sludge itself is a hazardous waste. Id.
at 24, note 10. .
Briefs submitted by the litigants in the CWM proceeding made the .
Court well aware that treating decharacterized wastewater in CWASIs
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results in the precipitation of sludge. See NRDC Petitioners Brief
at 64,(Metal-bearing wastewater can evaporate to reconcentrate
toxic metals.);Industry Intervenors Brief at 29 (Treatment in -
CWASls removes metals by precipitation.);Industry Intervenors , .
Brief at 31 (Precipitation of metals into sludge occurs in \
surface impoundments.); EPA Response Brief at 69 (Treatment of . .
wastewater in CWASls normally results in the precipitation of metal
hydroxide sludges.);'EPA Response Brief at 91 (Low TOG ignitable
wasteS'inanaged in wastewater treatment systems generate
nonrhazardpus sludges.). . ;'
In support of its position that RCRA's accommodation provision (§
1006(b)(l)) allows placement of decharacterized wastewater in
'CWASls, EPA argued that its Subtitle C regulations would satisfy
the :RCRA objective of protecting groundwater from toxic
- constituents of sludge: NRDC Petitioners argue .. .RCRA's
groundwater protection standard is not satisfied by CWA regulation
of discharges to surface water. NRDC Br. at 64-68. It is true that :
. CWA rules do not explicitly protect groundwater; this is not to
say, however, that EPA is precluded under RCRA from balancing CWA
and RCRA objectives in integrating the RCRA dilution prohibition
and the CWA rules. First, if a regulated hazardous waste e.g., a
toxic sludge precipitates out from non-hazardous wastewaters
disposed in the surface impoundment, then that unit becomes subject
to subtitle C regulation. 55 Fed.Reg. 39,409,39,410/3 (Sept. 27, ...
1990). NRDC Petitioners' assertion,that such hazardous sludges
could be generated in these impoundments and escape subtitle C is
thus simply incorrect. Compare NRDC Br. at 64
EPA Response Brief at 68-69.
In its discussion of accommodation of CWA and RCRA pursuant to
RCRA § 1006(b)(l), the Court wholeheartedly embraced EPA's
position. It held that allowing placement of decharacterized waste
in CWASls is a reasonable'accommodation, in part, because
RCRA Subtitle C will protect the environment from threats posed by
> hazardous sludge that may precipitate during treatment. See 976
F.2d at 24, note 10. In the Court's words.
[A]s the EPA concedes in its brief, if the stream entering the
surface impoundment is not decharacterized, then RCRA requires the
impoundment to meet subtitle C requirements. Similarly, any
hazardous precipitate or other hazardous material generated during
CWA treatment must be managed in accord with subtitle C. ,
Id. (emphasis added). ,
The text of the opinion, read in conjunction with the briefs
submitted to the Court, therefore shows that the Court carefully
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considered the issue of sludge precipitation and decided
that regulation-of sludge is required only if it is a listed or. ,
characteristic hazardous waste. If the Court wanted to impose LDR -
requirements for non-hazardous sludge, it certainly would have
made its intentions clear.
D. The CWM Court Did Not Require LDR Regulations Addressing
Leakage From CWASIs. '
The CWM Court focused its analysis exclusively on high volume
wastewater mat typically passes through CWASIs into navigable
waters and POTWs. See 976 F.2d at 24. With respect to
such wastewater the Court determined, as discussed above, that
ehd-of-pipe-equivalence satisfies RCRA LDR requirements. The Court
did not assess the issue of potential leakage from CWASIs, let.
alone mandate special LDR requirements to address it.
Briefs submitted by the.litigants in the CWM proceeding made the
Court well aware that the CWASIs had the potential to leak. The
NRDC Petitioners continually referred to CWASIs as"unlined"
surface impoundments, a term which the Court used to discuss
CWASI's in its opinion. Compare NRDC Petitioners Brief at 26,59,
60 with 976 F.2d at 20. Obviously, the term"unlined" implies the
possibility that CWASI's may leak. Likewise, the Court accepted at
face value assertions made by EPA and Industry Intervenors that
imposing LDR rules on CWASIs would require "major revamping" of CWA
treatment systems, in part because CWASIs cannot qualify for
"no-migration variances" that would allow them to receive
hazardous waste. Compare Industry Intervenors Brief at 33-35 and
EPA Response Brief at 64-67 with 976 F.2d at 21. EPA went so far as .
to assert that sludges produced during treatment in CWASIs
"typically leach low, relatively minimal levels of metals" - a
position not inconsistent with the NRDC Petitioners claim that
toxic metals can leach from CWA surface impoundments into
groundwater. Compare EPA Response Brief at 69 with NRDC Petitioners
Brief at 64-68. ,
After a full opportunity to review assertions concerning leakage
presented by the litigants, the Court decided to say nothing about
it. Perhaps the Court concluded that RCRA's accommodation provision
(§ 1006(b)(l)) gave EPA discretion to decline to address leakage
in light of the massive disruption and minor environmental benefits.
that would result. 1 Whatever the Court's reasoning, the fact that
it decided not to require LDR rules addressing leakage is
unmistakable. Accordingly, EPA cannot invoke the CWM opinion to
justify Phase IV regulations.
F. Sludges Generated in CWASIs Comprise a New Treatability
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Group; Therefore are not Covered by LDRs Unless the Sludges are
Characteristic Hazardous Waste/
As part of the final Third-Third Rule, EPA developed specific
"decision rules" (hereinafter,"treatability group rules"), which
make absolutely clear that non-hazardous sludge generated during
treatment of characteristic wastewater is not "prohibited waste"
and not subject to LDR regulations. See 55 Fed. Reg.' 22520,
22661-662 (June 1,1990)..Nobody challenged the Agency's conclusion
in the CWM litigation. In its Phase IV proposal, EPA aptly
observes,that the CWM court did not address - let alone remand or
vacate - the treatability group rules, which, in EPA's
own words, mandate that "wastewater treatment sludges not.
exhibiting a characteristic are not prohibited wastes, .
notwithstanding that they may derive from prohibited wastewaters."
60 Fed.Reg. 43654,43656, coL3 (August 22, 1995). Therefore, the
treatability group rules clearly place non-hazardous sludge beyond
the scope of the Phase IV rulemaking. Moreover, the rules
shed light on why the CWM Court did not require EPA to develop
special LDR regulations for sludge. The D.C. Circuit carefully read
the Third-Third Rule, including EPA's explicit discussion of
its treatability group concept, and concluded that LDR regulations
don't apply to sludge. It therefore held that RCRA equivalency
could be achieved through the treatment of wastewater only. .
In EPA's own words.
[The CWM Court did not say] that hazardous constituents in
deposited sludges must be treated. The court hi fact did not speak
to the principle stated by EPA in the Third Third rule that
generation of a new treatability group is considered to be a new
point of generation and thus a new point for determining whether a
waste is prohibited. 55 FR at22661-662. Under this principle,
unchallenged in'the litigation, wastewater treatment sludges not
exhibiting a characteristic are not prohibited wastes,
notwithstanding that they may derive from prohibited wastewaters
60 Fed. Reg. at 43656^0)13. -
Therefore EPA must exclude sludge from the Phase IV rule just to
comply with its own treatability group rules as well as the CWM
opinion. '
H. EPA Has Already Regulated Hazardous Air Emissions from
Waste Treatment Systems in Other Statutes of the Clean Air Act ,
. Additional Regulation is Under RCRA is Not Required.. ,
EPA must not ignore the strong regulatory initiative already in
place for the control of hazardous ah* emissions. The amended Clean
Air Act provides explicit regulation of hazardous air
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.pollutants(HAPs) in title IIL The Agency has stated repeatedly
that overlapping regulatory requirements for Part 268 are not
.required by the Court, nor intended in this proposed rulemaking
(60 FR page43659,43660 and other pages). Union Camp agrees with
this position. In title III section 112 of the Glean Air Act* and
through Maximum Achievable Control Technology (MACT) rules,
the Agency has determined controls of HAPs, and has the ability to
regulate any subsequent "residual risks" even after MACT
requirements have been installed. EPA must also consider the huge
cost and environmental penalties of redundant Clean Air Act and
Land-ban requirements.
Title III of the amended Clean Air Act has provided ample and
repeated opportunity for EPA to regulate emissions of volatile >
hazardous air pollutants. In section 112(b)(l), the Agency has v
listed . '
189 air pollutants to be specifically controlled, This list
, includes many of the pollutants EPA may attempt to control under.
this proposal. In section 112(d) of the Clean Air Act, the Agency.
must established lists of industry types and categories that have,
or will have hazardous air emission standards placed upon them.
These standards are based on the maximum emissions ,
reduction achieved in practice by the best performing 12% (or less)
of the industrial group or category for existing sources. The
result of the MACT is typically a requirement to reduce emissions
of hazardous pollutants by 90% an more.
For example, volatile hazardous emissions in the proposed Pulp and
Paper industry MACT, at least 90% of the volatile HAPs must be
captured. These must then be further treated in a device with 98%
destruction efficiency. In the Hazardous Organic NESHAP (HON)
final MACT rule, volatile HAPs must be controlled hi process and
wastewater operations to at least 98% reduction. In the proposed
lead smelter MACT total hydrocarbon HAPs must be-treated in
a high-temperature afterburner with a scrubber. This will affect at
least 98% control. Many other final and proposed MACTs have similar
high removal and destruction efficiencies. These MACTs will cover
virtually every major and most minor types of industrial and
process categories, (see 56FR 9315). These categories were
established based on emissions magnitude, and ,
potential environmental impact. The most important categories will
be addressed first. EPA must not overlay this stringent regulatory
framework with a conflicting or additional requirements. The Agency *
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and'.the public would be better served if the MACT and other title
III processes were allowed to proceed unencumbered by contradictory
RGRA impediments. ' ,
Section 112(f) of title III of.the Clean Air Ad serves as a < . *
"backstop" for control of hazardous air -
emissions. In this section, EPA is obliged to evaluate the'' '
residual risk remaining after MACTs have been in place. The Agency -
must apply risk assessment methods to calculate the
significant public health emissions that may remain. EPA must, also
propose,recommendations to address the risk for any industrial
category it finds is appropriate. This "fix" is self-implementing,
if Congress, does not act on the recommendations, then the Agency
may promulgate standards with an ample margin of safety to address
the problem. The initial 112(f) report on residual risk is due . "
by November 15, 1.996. EPA must hot require overlapping and '
additional control requirements for hazardous air pollutants when
section 112(f) has provided for a system for evaluation of
these pollutants, and discrete rulemaking as needed.
/ENDC8 . --.- . _.._., : ...
As a specific example, EPA must not apply RCRA subpart CC to waste
streams neutralized upstream of surface impoundments. The risks
(and controls if appropriate) will be addressed under title III -of .
the Clean Air Act To do so through LDR is poor policy, and a
waste of scarce Agency, and public resources.
I. The Pulp arid Paper and Other Industry are Either Already
Covered by a Rule for the Control of Hazardous Air Pollutants, or;
Have Been Considered for Control and Rejected by EPA.
EPA acknowledges that if a source is already controlled by other
regulations for the release of hazardous air pollutants, then no
further regulation may be necessary. This is known as "Option 1" of
the proposed land-ban rules. As previously stated Union Camp
believes Option 1 is an appropriate selection. Union Camp has shown ^
where, title III of the Clean Air Act effectively accomplishes the
objective of control of hazardous air emissions through MACTs,
followed by evaluation of residual risk. This section will discuss
specifically how the Pulp and Paper and other
specific industries are either covered by an air rule, or were
considered for control but rejected for cause by EPA. "
The Pulp and Pape^NESHAP, (known as She Cluster Rule") was.
proposed on December 17,1993. This rule was preceded by an EPA
data-gathering effort including questionnaires, sampling and
comment solicitation. The paper industry also supplied EPA with
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volumes of data in support of this rule-making. The intent of the
Agency was to simultaneously consider the effects on air, water and
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solid-waste from this "Cluster", rulemaking effort. The proposed
rule considered all these aspects, but especially the air and water
, media. The Agency held.a series of public meetings.during the . .
drafting of the.proposed rule to explain their findings and
solicit input.
During the early stages of the Cluster rulemaking, EPA surveyed
data from Pulp and Paper mills relative .to HAPs and especially
methanol, in wastewater. Methanol is the overwhelmingly prevalent
HAP at a pulp and paper mill, accounting for at least 96%'and in
most cases 99%, of the HAPs emitted. Because of this, the Agency
- allowed for the measurement of the HAP methanol (or chlorine from
the bleaching process), as this was the only pollutant found
and measured in significant amounts, (see NCASI Reports
"Industry-Supported MACT Sampling Program," 1993-94, six volumes.).
EPA had considered setting a methanol in wastewater limit of
lOOppm, based on the presence of methanol in the process, and that'
the lOOppm was consistent with other rulemaking targets such as the
HON; This initial level of lOOppm was a concern to the industry,
and was the focus of a special NCASI condensate characterization
study. The pulp and paper industry was concerned that the lOOppm
was an inappropriate threshold due to the lack of information . ".
available to the Agency at that tune, and the consequences of
control to that level.
Methanol, which is a product of chemical digestion of wood, is
often found in condensates associated with spent wood pulping
liquor concentration, and in some areas where condensates and
process waters are recycled. Lessor amounts of methanol are
associated with other areas of a pulp mill, and became concentrated
as a facility .conserves water and closes up its production cycle.
Due to^ large amounts of water used and recycled in the process of
making paper, a treatment threshold of lOOppm was inappropriate and
counter-productive to conservation of heat and water.
For example, in unbleached paper mills, water is efficiently
recycled throughout the process. Condensates are reused for their
heat and ability to wash pulp. As a result, the water in some
pulpmill and even paper mill general sewers could reach the lOOppm
threshold. The flow of these streams is thousands of gallons per
minute. Had the Agency required steam stripping on this
large dilute flow (steam stripping is the control technology
. required by the Pulp and Paper MACT), the cost would have been
enormous. A mill would have had to construct a steam stripper the
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size of a Saturn Rocket and install a separate boiler to supply the
steam. Fossil.fuel would in many cases provide the heat to the
boiler, with the requisite emissions increase of criteria
pollutants. -
The overheads from the stripper must go to a boiler for further
destruction. The wet gas has no heat value and would have required
even more fuel to maintain boiler operation. Additionally, it
is doubtful that a steam stripper could even remove methanol to
lower than I OOppm. The capital and operating costs would have been
enormous and the resulting increase in the products of combustion
not worth the estimated decrease in methanol. Upon leaming.of the '
consequences of this threshold, EPA considered and rejected
controlling emissions from wastewater streams down to 1 OOppm.
As a result, EPA made two, important changes to the proposed
Cluster Rule. The first was to allow an option of routing the HAPs
to a well-operated biological treatment system. The second, was to
propose a higher treatment threshold of SOOppm methanol. In the
, proposed Cluster rule, a source may elect to handle waste streams
containing SOOppm or greater in a biological treatment system. This
would bring nearly the entire wastewater treatment train under the
ambit of the Cluster Rule., The Agency believed that a wastewater
treatment system would effectively destroy and not just strip HAPs.,
Methanol, which is the predominant volatile hazardous .air
pollutant is highly soluble in water. Low concentrations of
methanol typically found in mill wastewaters would have little
"driving force" to volatilize from the wastewater mixture. EPA
models, and industry supplied data found in the Cluster docket
indicate that overall loss of methanol from the biological
treatment system is expected to be less than 0.1 % of the total
(NCASI Report, Table 5at page 7, Douglas Barton, Cluster Rule
Water Docket). A treatment system option was a valid pathway for
Cluster compliance. The biological system must have high methanol
treatment efficiency and demonstrate this ability through testing
and reporting (see 58 FR, page 66177 etseq., proposed'40 CFR '.
63.446).
If a biological treatment system is not used for the destruction
of methanol, then a pulp and papermill must treat 500 ppm streams
in another fashion. In the proposed rule, a source may
route streams above the threshold to a steam stripper, then to a
combustion device such as a boiler or thermal oxidizer. Conveyances
for the vapors must be leak-free, with specific testing
and reporting to ensure compliance (see 58 FR, page 66177 et seq.).
In any case, a pulp and paper mill must identify its HAP
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containing wastewater streams, then treat'and control thenvto a
very high degree. For example, the proposed Cluster rule would
require treatment of such other pulping component streams as
turpentine decanter underflow, non-condensible gas system
condensates, other condensates above the threshold; as well as
air emissions from numerous processes like brownstock washers,
black liquor storage janks, digester systems, chip steaming vessels
and others. Control areas in a pulp bleaching component
include pulp bleaching stages, bleached pulp storage chests,
filtrate storage tanks and others. , ...
Effluent from the bleach plant, once "it is sewered, was considered
for control but rejected by EPA due to its low HAP concentrations, -
and extremely high cost (see 58 FR pg. 66140). The 500
ppm threshold was proposed bas
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the Environment by Requiring Process Changes, Management Systems
and Pollution Control Technologies. ,
Authorized by the Clean Water Act to establish the best available
' technology economically achievable (BAT), EPA established limits in
the Cluster Rule which would enforce technologies that minimize the
generation of pollutants and the bibaccumulation potential of
pollutants present in effluents at trace levels through process .
chances. . '
To arrive at these chemicals of concern and discharge limitations.;
the Agency completed an extensive study of the paper industry ;
wastewaters apparently used in the Phase IV TSD(understpod in the
effluent guidelines development as the long-term and short-term
studies.) As described in the "Proposed Development Document for
the Pulp, Paper and Paperboard Category Effluent Limitations
Guidelines" 443 specific pollutants were the subject of extensive
study during the development of the Cluster Rule. Through the
evaluation of the processes which form the pollutants, the Agency
made a determination concerning which pollutants should be subject
to further regulations in BAT. ,
For mills engaged in bleaching of pulps, the Agency identified and
chose to regulate dioxin and furan (23,7,8-TCDD and 2,3,7,8-TCDF),
four volatile organic compounds (methyl ethyl ketone, methylene
chloride, chloroform and acetone) and 12 chlorinated phenolic
compounds. The list of chemicals was not greater because the Agency
reasoned that regulating the 12 chlorinated organics will
essentially regulate many other similar compounds. Chloroform and
other volatile compounds will be regulated at a point Very close to
their originate because of their potential to volatilize to the
atmosphere during transport, storage and treatment. For the other
constituents, it
was necessary for the Agency to set limitations close to their
point of origin because of dilution effects further away from the
generating processes. As a result, EPA will require bleached ;
kraft paper mills to comply with production based limitations for
18 toxic pollutants at or near their point of originate (in the
bleach plant effluent) and not at the effluent of Clean Water
Act treatment system.
Due to the restrictions on the bleach plant effluents upon
implementation of Cluster Rule, bleach plant process changes will
be required. Those mills now bleaching with elemental chlorine .
must convert their processes to alternate chemicals. With this
process change, bleached kraft mills should be able to achieve
below detection levels for most of the Cluster Rule parameters and
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near detection level 'for the remainder. This means that volatile
organic compounds and priority pollutants from the pulp and paper
industry's bleaching .processesiwill be reduced at their , .
source through installation of best available technology.
As well the Agency is proposing under the Cluster Rule that
specific best management practices must be instituted as a
condition in pulp and paper mill NPDES permits. Through
physical changes made to pulp mill spill control and collection
systems and through instituting management practices, mills will
tighten up their processes to minimize discharge to Clean Water
Act systems of spilled black liquor. Though presently covered under
the elementary neutralization exclusion, weak black liquor and
black liquor, depending on the point of generation are corrosive.
. And limited data which we have suggests that they contain several
UHCs above the UTS and VOCs greater than 100 ppmw. However, .when
Cluster Rule BMPs are in place, we expect that wastestreams
previously containing spent black liquor will be recovered or not
exhibit the corrosive characteristic at the point of generation. .
EPA is in the process of developing guidance under the Cluster Rule
dealing with the implementation of black liquor spill prevention
and control practices through best management practices planning.* ...
It is anticipated that control systems will be recommended that v <
depend on pH or conductivity measurements in spill collection
sumps to divert to recovery spills, leaks, drips and drabs of black
liquor. Depending on the individual mill's recovery capacity, even
very dilute spent liquors streams could be recovered, minimizing
their discharge into CWA systems.
Because EPA's risk assessment justification for the phase IV rule
to apply to the pulp and paper industry was based on data generated
during the Cluster Rule development, the efforts to regulate will
be duplicative. The development of the Cluster Rule was .
understandably more thorough in its generation and review of data, .
and evaluation of process and treatment technologies, than
was Phase IV. Therefore, we strongly recommend that the Agency
adopt Option I and allow the process changes under Cluster Rule to
take effect - .
Under the proposed Option 3, decharacterized wastes would have to .
be treated to meet UTS before they enter into CWA surface
impoundments. 60 Fed. Reg. 43655,43675. UCC is thankful to leam
that "EPA is not in favor of the third option, as it is likely to .
.disrupt treatment needed for compliance with the CWA limitations and
standards, and impose high costs without targeting risks
adequately." 60 Fed. Reg. 43655. UCC believes that EPA is entirely
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.correct with its opinion that Option 3 would disrupt CWA treatment
.without environmental benefit. Option 3 would ignore useful
treatment that occurs in paper, chemical and other industry
surface impoundments and "force.modifications at facilities that
do, as well as those that do not, pose risks from leaks, , ,
air emissions, and sludges." 60 Fed. Reg. 43659.
Option 3 would render RCRA § 1006(b) null, because it would
destroy the integration of RCRA and other acts administered by EPA
as the Congress ordered. Finally, it would ignore the CWM Court's
finding that "under RCRA diluted formerly characteristic wastes
may be placed, in Subtitle D surface impoundments that are part of
an integrated CWA treatment train ... before they have been treated
pursuant to RCRA...." 976 F.2d 2 at 22. Based on these reasons,
UCC believes EPA's rejection of Option 3 is not only correct but'.
required.
A. Subpart CC Requirements Should not be Extended to CWASIs
Under Option 2 of the Phase IV LDRs.
Union Camp believes that Subpart CC requirements should not be
extended to wastewater treatment impoundments under Option 2 of the
Phase IV LDR, because the Subpart CC regulations have not been
finalized and are subject to modifications pending the EPA's
response to issues raised during the comment period.
Additionally, the EPA needs to identify and eliminate organic
compounds which are not VOCS. That is, organic compounds that do
not volatilize and/or are readily biodegradable should ,
be identified and eliminated as VOCs in waste determinations. VOCs
from nonhazardous wastes also need to be addressed. VOCs from
nonhazardous wastes should not be included in calculating organic
removal efficiency.
Cost for compliance of the Phaise IV VOC releases would be
extremely high and unjustified. For example based on the estimate
of $7.21 per square meter provided in the Phase IV RIA, it
would cost $3,200,000 to install a floating cover to control air
emissions from Savannah's wastewater treatment surface impoundment.
This is only one facility out of a number in our corporation
that may be subject to this additional unjustifiable cost. As can
be seen, the cover requirement may have a major impact on the cost
of this rule to the pulp and paper industry.
B. ^EPA has Twice Delayed the Effective Date of Subpart CC so
That it can Reassess Fundamental Elements of That Rule Including
the Underlying Test Method. EPA Should Not, Therefore, Base the
Phase IV Air Emission Risk Assessment or .Control Measures on the
Subpart CC Rules. .
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.EPA's Phase IV risk assessment concerning air emissions, "relied
on existing analyses conducted to support the RCRA Subpart CG ,
regulation of air emissions from hazardous wastewater treatment
units." RIA at 2-51. These include the regulatory impact analysis
for Subpart CC and the background information document ("BID")..But
the Subpart GC rules are presently undergoing both EPA , .
administrative review and judicial review in large part because of
flaws in EPA's risk assessment and technical background document
which underlie the Subpart CC 100 ppmw regulatory threshold, test
Method 25D, and other issues affecting the applicability of the
Subpart CC rules. Because of these outstanding issues, the Agency
has twice postponed the effective date of the Subpart CC rules. 60
Fed. Reg. 26828 (May 19,1995), 60 Fed. Reg. 56952 (Nov. 13,1995).
In addition, EPA published on August 14,.1995a proposed rule and
notice^ of data availability concerning.changes to fundamental
aspects of the Subpart CC rule including waste determination
procedures and .the applicability of the rule to units that .operate
air emission controls under the Clean Air Act ("C AA"). 60
Fed.Reg.41870. In that Federal Register notice, EPA announced that
it "is planning to publish a technical correction notice to the
rule ... and may also propose additional changes to the rule in
the near future." Id. In view of EPA's on-going administrative
review process, the related judicial review of the Subpart CC
rules, and fundamental flaws in the underlying Risk Assessment and
test methodology which we discuss below EPA should not base
any Phase JV Rule decisions on the Subpart CC rule or its
underlying analyses. , '
D. Ingrpund Concrete Tanks should not be in SI category
UCC recommends that concrete inground tanks be explicitly excluded
from the definition of surface impoundments being covered by the
Phase IV rule. The surface impoundment definition needs
clarification to ensure concrete inground tanks are not included
under the phase IV rule management standards: The background
document describes and illustrates on several occasions "typical"
surface impoundments with side slopes and some, with liners.
We believe strongly that EPA should not place the concrete inground
tank in the same category as a surface impoundment. Wastewater
being treated in primary containment units is not a hazardous ',
waste, but only a wastewater with a UHC above UTS level. The x .
placement of an concrete inground tank at the same classification ;
or "threat to environment" level is totally unjustified with the
nature of the wastewater.
Although these tanks may not meet the court based decision on the
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RCRA tank definition, they are indeed tanks. Releases if any from
these concrete tanks through construction joints are small in
comparison to releases from earthen clay soil based impoundments,
which have the full' liquid layer as the surface area exposed to the
soil. This fact should be taken into consideration in the risk
analysis and'economic cost analysis. All types of industries as v
well as local municipalities using concrete inground tanks for
primary treatment operations could be affected by this decision.
Millions of dollars by industry have already been invested in
these units under the Clean Water Act. Municipal POTWs also
receiving decharacterized wastewater via dilution may also be
affected by this rule at a high economic burden, when budgets
are already strained. The inability of the regulated community
including municipalities to continue using treatment systems
currently in place, many meeting mandated government
construction specifications, would create an extreme economic
burden for them. , . . -
G. Surface Impoundments at Interim Status and Permitted TSDFs
Should be Exempted from All Phase IV Management Standards!.
UCC agrees with EPA that permitted TSDFs should be totally
exempted. During the RCRA Part B permitting process the Subtitle D
wastewater surface impoundments receiving non-hazardous wastewater
constituents will be inspected to determine if they are
causing unacceptable environmental impact via emissions to the air,
runoff to surface waters, and see page into the soil and ground
water (§3004(u)). Such inspections will determine if any additional
monitoring and/or corrective action is needed for the impoundments
on a case-by-case basis. These inspections and subsequent later
activities, as needed, assure that the impoundments are being
operated in environmentally acceptable manners, according to
agency interpretations.
Interim status facilities should be provided the same total
exemption as permitted TSDFs, since the same amount of inspections
with, follow-up monitoring and/or corrective action, as needed, will
be conducted during the Part B permitting process or can be
conducted under §3008(h).UCC does not believe it to be practical
to force interim status facilities to comply with Phase IV
requirements if the regulatory agency has the authority to inspect
the facility and to request site-specific corrective action
measures based on those inspections and any further monitoring.
UCC believes total exemption from all Phase IV management
standards should be provided for both interim status and permitted
TSDFs! ' ,
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.UCC also believ'esithat facilities undergoing corrective action
under Consent Orders or other state, federal or local actions
should also be exempted from Phase IV corrective action management
standards. States may have their own corrective action programs
and therefore should be allowed to.address corrective action issues
in lieu of federal action.
Q. Additional comments on Sludge '
UCC believes that EPA's proposed requirement for annual sludge
removal from CWASIs is extreme arid not. necessary. Frequent sludge
removal may increase releases since it stirs up material arid may
damage liners of the iiripoundment. Air releases and leakage may
also increase and carry through of some constituents rnay occur.
Another concern with the sampling is that the treatment facility
. may require a shut down to facilitate the safe sampling of sludge.
The shut down may cause disruption of a sites treatment operation.
Cost for the collection and disruption of plant treatment should
be considered in the Cost Analysis. After sampling sludge, analysis
for UHC is required. Tests for some UHC are not available,
unpredictable or extremely expensive.
Another concern with the sampling is.that the treatment facility
may require a shut down to facilitate the safe sampling of sludge.
The shut down may cause disruption of a sites treatment operation.
Cost for the collection and disruption of plant treatment should
be considered in the Cost Analysis. After sampling sludge, analysis
for UHC is required. Tests for some UHC are not available,
unpredictable or extremely expensive.
Sludge (p. 43673 2 col) EPA says sludge in place to a release
pathway separate from the leaks pathway. We.agree with this'and
also feel sludges in place would tend to retard any leakage due to
the build up of sludge and other fine particles. , - ' '
S. EPA should use scientific knowledge to determine trigger
levels for corrective action for UTS constituents which do not have
MCLs or State risk-based levels. . .
Water quality-based limits are developed to protect human health
and aquatic-life. Section304(a)(l) of the Clean Water Act (CWA)
requires that the Environmental Protection Agency develop and
update water quality criteria (WQC). These criteria are to reflect
. the latest scientific knowledge on the kind and extent of all
identifiable effects'of pollutants for the protection of
aquatic-life and human health from the presence of pollutants in
any body of water, including ground water (Quality Criteria for
Water, 1986, EPA). .
329
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For UHCs that do not have MCLs or State or tribal risk-based
'* ' f >
numbers, EPA is proposing that the UTS level be used for the
regulated constituent to trigger corrective action .
requirements [p.43669,2nd column, 1st paragraph] EPA is proposing
that the ground water monitoring and correction action regulations
for municipal solid waste landfills (MSWLFs) under the Subtitle D
program be adopted with minor modifications for the monitoring and
remediation of surface impoundments subject to the LDR Phase IV
proposed rule-making. EPA states in the preamble that it believes
that the ground water monitoring and corrective action standards
in the MSWLF rule are appropriate and protective of surface
impoundments subject to LDR Phase IV. However, EPA is adopting only
self-implementing portions of the MSWLF ground water monitoring and '
correction action requirements.
Section 258.55(1) of those requirements states that these
ground-water protection standards shall be appropriate health-based
levels that satisfy the following criteria;
(a) The level is derived in a manner consistent with Agency
guidelines for assessing the health risks of environmental
pollutants (51 FR 33992,34006,34014,34028,September 24,1986).
(b) The level is based on scientifically valid studies conducted
in accordance with the Toxic Substances Control Act Good Laboratory
Practice Standards (40 CFR Part 792) or equivalent;
(c) For carcinogens, the level,represents a concentration
associated with ah excess lifetime cancer risk level (due to
continuous lifetime exposure) with the 1 x 10-4 to 1 x 10-6range;
and .
(d) For systemic toxicants, the level represents a concentration
to which the human population (including sensitive subgroups) could
be exposed to on a daily basis that is likely to be without
appreciable risk of deleterious effects during a lifetime.
(For purposes of that subpart, systemic toxicants include toxic
chemicals that cause effects other than cancer or mutation.) *
EPA stated that in light of the self-implementing nature of these
specific standards for leaks for surface impoundments, EPA decided
not to adopt the provisions of 268.55(1) which address site
specific protection standards (P. 43672,3rd column, 1st
paragraph]
As presented in the "Technical Support Document - Options for
Management Standards for Leaks, Sludges, and Air Emissions from
Surface Impoundments Accepting Decharacterized Wastes (page 7-20)",
MCLs were identified by EPA as a trigger level because they are
a reasonable benchmark of risk posed to human health at a drinking
330
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.water source. Under the Safe Drinking Water Act, EPA is required to .
publish maximum contaminant level goals(MCLGs) for contaminants
-which may have an adverse human health effect. Since MCLs .and MCLGs .'
are required to be set at a level which allows an adequate margin . v
of safety, pollutants with no MCLs or MCLGs have not been , -
identified by EPA as posing the significant risks identified for
the others., , . . .>,-''
, . Therefore, if Option 2 is chosen, it is recommended that EPA not
defer to the UTS, level for constituents for which MCLs have not .
been established, and that corrective action not be required until"
an MCL or an alternative ground water protection standard has be
' established by EPA or the State. As opposed to defaulting to 'the
UTS, EPA should adopt the provisions of268. 55(1) for determining
if corrective action is warranted for UTS constituents .
without MCLs. .
. T. Subpart CC requirements should not be extended to small
quantity generators (SQGs) under LDR Phase IV.
Union Camp believes that Subpart CC requirements' should not be .
extended to SQGs. In the'preamWe to Subpart CC, EPA acknowledges
that generators subject to 262.34(d) or (e) are not subject to " : ,
Subpart CC (p.62902, 2nd column). However, under Phase IV, SQGs
will be brought into this regulatory arena based on VOC _
1 concentrations at the point of generation. In keeping with its
original intent, EPA should maintain the SQG exemption from
Subpart CC requirements. . . ! ,
RESPONSE
In the August 22, 1 995 Phase IV proposal, EPA discussed three options for ensuring that .
underlying hazardous constituents in decharacterized wastes were not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 1 6,' 1 996, the
President signed the Land Disposal Program Flexibility Act of 1996; which provides that the
wastes in question are no longer prohibited from land disposal once rendered nbnhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection 'wells, the Safe
Drinking Water Act. /
331
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However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-yearstudy to
determine any potential risks posed by cross-media transfer of hazardous constituents from.these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. - ;
332
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-. DCN . PH4P024 ' . , , ;
COMMENTER Union Camp Corporation
RESPONDER SS v .
SUBJECT EQUV , ."''.'.,
SUBJNUM 024 \ '-' * - ' ,. .' '
COMMENT ' ^ '''
E. The Court Did Not Assess The Application Of LDR Treatment'
Standards To Air Emissions From Material Placed In CWASIs ^
EPA can find no support for across-the-board Phase IV air emission
rules in the CWM opinion for the simple reason that, with one.
limited exception^ the opinion did not discuss controlling
air emissions from materials placed in CWASI's. The Court confined
its discussion of air emissions to the portion of its holding that . . .
vacated EPA's deactivation standard for ignitable wastes on .
the grounds that diluting ignitable wastes emits high levels of
VOCs. See 976 F.2d at 16-17. The Court never addressed whether LDR
treatment requirements must cover air emissions ,
1 from decharacterized corrosive or reactive waste managed in a -
CWASI. - - ' t ' " . - . - 'J . - -
.{ ' As this analysis of the CWM decision shows, the D.C. Circuit .
confined its pronouncements about RCRA equivalency to wastewaters.
EPA recognizes the Court's narrow focus when it said in .
the preamble "the focus here is on the wastewaters being treated,
and the amount hazardous constituents removed from those
wastewaters, not other types of wastes (like sludges) or >
x other types of releases. "60 Fed: Reg. 43656. Thus, EPA's Option I .
is the correct course; the Agency need not promulgate LDR
requirements beyond those proposed in the Phase III rules, which
meet both the Court's conclusion that "RCRA requires some .
accommodation with [the] Clean Water Act" and also ensure that
"what leaves a CWA treatment facility can be no more toxic than if.
the waste streams were individually treated pursuant to the RCRA .
treatment standards." CWM, 976F.2d at 20.
.'-' -
RESPONSE: ^ ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the "_
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrpsivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
333
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a result, on April 8< 1996, EPA withdrew its treatment standards for. these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes'in today's rule do not
apply to TC metal wastes if the characteristic is removed and the. wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
"Drinking Water Act. . ,
' i , _ x \ .; -
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . ' '
334
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DCN - PH4P024 ;'. - .
COMMENTER Union Camp Corporation . ' , ~
RESPONDER SS , : .
SUBJECT EQUV . , ' . , . ,. ^
SUBJNUM 024 . . '' '
..COMMENT " " -. . " ' . ''... '''.. '
A. A De Minimis Exception to the LDRs is Appropriate and , .
Reasonable. ,.-'. . ' . .
.. Existing LDR regulations have for some time incorporated'a de
minimis exception for certain low risk/low quantity waste streams.
See'e.g., 40 C.F.R. § 268.1 (e)(4) (losses to wastewater treatment
systems of certain commercial chemical products) and (e)(5) .
;. (laboratory wastes).EPA proposed in its Phase III rules a similar
exception for material handling losses, leaks, discharges from ' -
' safety showers, rinsate from empty containers and for :
characteristic wastes injected into class 1 non-hazardous wells. In .
its comments on the Phase III rules, UCC urged EPA to extend the de
minimis exception to decharacterized waste streams that'are managed
in CWA surface impoundments. UCC is gratified to see that EPA has .
proposed just such an exception in § 268.1 (e)(4)(ii), 60 Fed. Reg. .
43691. The proposed de minimis exception is essential for practical ,
implementation of any Option 2 rules the Agency might adopt and .
places decharacterized wastewaters handled in CWA surface ' <
impoundments on an equal footing with those injected into Class 1
wells, laboratory wastes, and the like.
. . - J*" "
RESPONSE:
The Agency is retaining the de minimis exemption previously promulgated at 40 CFR
. 268.1(e)(4). In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring
that underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems -
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
, wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity.when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
, a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
>emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
s ' ' .-_'." '
''.' . x 335 - . ''- : . : -
-------
However, the Land Disposal Flexibility Act does mandate EPA to .undertake a 5-year study to
determine any potential risks.posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may '
result in'proposed regulations for these units, if risks are in fact found that would warrant such.
regulation. '"."
336
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DCN PH4P024 .' . . ,
COMMENTER. Union Camp Corporation . ' ,
RESPONDER SS
SUBJECT EQUV , . ; ' "
,SUBJNUM 024 ' ' . ' -~ ^ . '
COMMENT , < :
EPA stated that Phase III comments were not reviewed by the time . . -
this Phase IV notice was issued. It is imperative that all comments . -
be .reviewed before a final Phase IV rule is promulgated. A final , ,
decision regarding upgrading or replacement of impoundments could
be influenced by effluent quality, air emission, groundwater . .
. quality or sludge quality issues. In addition, the compliance time . , .
allowances for both Phases should be consistent if not coincident.
Further UCC recommends that Phase, IV be reproposed after Phase III
is finalized. , ' .
f ' > ''..'
RESPONSE: ,
EPA had the opportunity to review and consider all comments submitted to the Agency in '
response to both the Phase III and Phase IV proposed rules prior to the promulgation of today's
final rule. In addition, EPA proposed and received and considered public comments in response
to one additional proposed mlemaking and a notice of data availability, since publication of the
Phase IV proposed rule. EPA published a Supplemental Proposed Rule on January 25,1996 (61
FR 2338). A notice of data availability related to some issues proposed in the August 22,1994
proposed rule was published on May 10,1996. .
t Given the fact that the Agency published a supplemental proposal, a notice of data availability,
and a partial withdrawal related to the proposed requirements, and given the fact that EPA
promulgated Phase III LDR requirements on April 8,1996 (61 FR 15566), EPA disagrees with
the commenter's assertion that Phase IV should be re-proposed. After considering all comments.
and data provided to EPA in response to the Phase III and Phase IV proposed rules, the Phase IV
supplemental proposed rule, and the Notice of Data Availability, the Agency believes that
sufficient consideration has been given to the issues raised in the proposed rule that allows for
promulgation of the Phase IV rule at this time. In addition, the Agency believes there are no .
discrepancies between or undue burdens caused by the compliance schedules for the Phase III
and Phase IV requirements. * .
1 ' . , ' \
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems
, regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous .characteristic of ignitabiiity, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). Oh March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
'. ' . .' ''' ' ' ' . 337 , " ' - ' '
-------
wastes*in question, are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 PR 15660).
Today's Phase IV .final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal .wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . v
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. '". * '
338
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DCN -. PH4P024 ' . . ' -
CQMMENTER Union Camp Corporation . '
RESPONDER SS .
SUBJECT .EQUV .
SUBJNUM 024 ; .-,,..- '- .
COMMENT - . ' . : ' , . " ;
A.. A De Minimis Exception,to the LDRs is Appropriate and '
Reasonable. ..,.,'. ' "._' .
Existing LDR regulations have for some time incorporated a de .
minimis exception for certain.low risk/low quantity waste streams. , :
. See e.g., 40 C.F.R.§ 268.1 (e)(4) (Josses to wastewatertreatment
systems of certain commercial chemical products) and (e)(5)
(laboratory wastes).EPA proposed in its Phase III rules a similar
exception for material handling losses, leaks, discharges from
safety showers, rinsate from empty containers and for . .
characteristic wastes injected into class 1 non-hazardous wells.,In
its comments on the Phase III rules, UCC urged EPA to extend the de , r
minimis exception to decharacterized waste streams that are managed )
in CWA surface impoundments. UCC is gratified to see that EPA has ' '','
proposed just such an exception in § 268.1 (e)(4)(u), 60 Fed. Reg.
" 43691. The proposed de minimis exception is essential for practical
implementation of any Option 2 rules the Agency might adopt and
places decharacterized wastewaters handled in CWA surface .
. impoundments on an equal footing with those injected into Class 1 .
wells, laboratory wastes, and the like. .
RESPONSE: , '
The Agency is retaining the de minimis exemption previously promulgated at 40.CFR s ,
268.1(e)(4). In the August 22^ 1995 Phase IV proposal, EPA discussed three options for ensuring
that underlying hazardous constituents in decharacterized wastes were hot released to the
environment via leaks, sludges, and air emissions.from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastesjn question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for.TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ..
339
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However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact1 found that would warrant such
regulation. . .
340
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DCN . ; PH4P025 / .
COMMENTER Magma Copper Co.
RESPONDER PMC
SUBJECT EQLTV ,_'.'
SUBJNUM 025 ' ,
COMMENT
,: Magma believes Option 1 is adequate to control potential
, cross-media releases from RCRA Subtitle D surface impoundments.
- EPA offers for comment three options for controlling potential
cross-media releases from surface impoundments that receive' -
, decharacterized wastes which contain underlying v
hazardous constituents ("UHCs") above UTS. Option 1 would not
require EPA to promulgate LDR requirements, but instead would rely
on existing federal and state programs to address risks posed by
potential cross-media releases from surface impoundments
containing decharacterized wastes.
Magma supports Option 1 because EPA and state agencies have
successfully implemented water quality programs to ensure that
. surface impoundments present no threat to human health and
the environment. More specifically, Magma has operations located in
Arizona and Nevada. Both of these states have comprehensive
programs that address seepage from mining-related surface
impoundments as well as sludges that may be formed in these
impoundments. These state rules are contained in aquifer protection
and mining-specific programs (Arizona and Nevada, respectively),
rather than in RCRA programs, and therefore apply regardless of ,
whether an impoundment receives wastes from mineral extraction and
beneficiation, mineral processing, or a combination of the two.
Based on Magma's experience, state programs are effective
in addressing potential impacts from seepage and sludges from its
CWA impoundments.
The Arizona Aquifer Protection program focuses specifically on any
"discharge" to the ground or to an aquifer that has the potential
to violate the state's Aquifer Water Quality Standards. . .
The authorizing statute includes the presumption that "mine
tailings piles and ponds" are discharging facilities that require
Aquifer Protection Permits. (ARS 49.241 .B.6). In order to receive
an Aquifer Protection Permit, a facility must demonstrate that it
will meet Aquifer Water Quality Standards. Facilities must employ
the Best Available Demonstrated Control Technology in order to meet
the standards, and verification monitoring must.be conducted.
, These requirements apply through the closure of the facility,
thereby subjecting any seepage from the tailings remaining in the
341
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impoundment (i.e., "sludges") to these same standards. The
co-disposal of acid plant blowdown (a mineral processing waste
exhibiting a hazardous characteristic) and mill tailings
(a"Bevill-exempt".beneficiation waste) through a totally enclosed
treatment facility was specifically considered in the Aquifer
Protection Permitting process for Magma's San Manuel operations. .
The state of Nevada has regulations that specifically address
ground, water impacts from mining facilities. These rules require
permit, for mining impoundments managing production-related fluids.
These units must be designed, operated and closed such that any
seepage will not violate primary or secondary drinking water
standards. Nevada rules require tailings solids to be subjected to
a leach test to ensure that seepage from an impoundment will not
release contaminants in concentrations that would violate these
standards. As with the Arizona program, the "RCRA status" of the
wastes has no bearing on Nevada's regulatory decisions regarding
the applicability of the program or the measure required to meet
ground water standards. v
EPA recognizes in this Proposed Rule that existing or forthcoming
regulatory mechanisms will adequately prevent impoundments from ,
becoming "conduits for extensive cross-media transfers of untreated
hazardous constituents." Id. Furthermore, as acknowledged by the
Agency, the Phase III LDR requirements are legally sufficient to
ensure that-"removal of UHCs occurs to the same extent in CWA
impoundment-based treatment systems as it does in conventional
RCRA treatment systems." 60 Fed. Reg. at 43659. See Chemical Waste
Management v. EPA, 976 F. 2d 2 (D.C.Cir. 1992), cert, denied 113
S.Ct. 1961 (1993) (hereinafter referred to as the "CWM Decision").
Magma opposes Option 2, which entails unduly burdensome standards,
but agrees with the EPA that Option 3 is disruptive and
unnecessary.
Option 2 would impose unreasonably onerous management controls on
Subtitle D surface impoundments receiving decharacterized waste.
Furthermore, EPA does not identify with any specificity why it
believes Option 2 is necessary. EPA merely asserts that a certain
"subset of situations" is not addressed by existing requirements or
those under development. 60 Fed. Reg. at 43659. The Option 2
proposal, therefore, constitutes an over-inclusive, broad based
approach to fill unspecified, arid perhaps nonexistent, regulatory
gaps. -.._.' ' - .' ',".'
Magma concurs with EPA that Option 3 is an unduly burdensome and
unwarranted alternative since facilities could be forced to disrupt
their wastewater treatment systems in order to achieve compliance
342
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with the requirements'imposed by this option. Magma also agrees
with EPA that by requiring .that decharacterized wastes meet UTS
before entering surface impoundments, Option3 would frustrate the
benefits of treatment-based impoundment systems. This is
particularly disturbing in light of the fact that the requirements
would be-uniformly imposed even where littler no risk exists.
RESPONSE .. - ' \ ./ , ' -. . . . .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
.underlying hazardous constituents in decharacterized wastes were not released to the . -
environment via leaks, sludges, and air emissions from surface impoundments in" systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the -
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule willnot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,' 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit .that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ...'.'. -
343
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I
DCN - PH4P028 - . ' , .
COMMENTER Texas Utilities Services -
RESPONDER PMC - '
SUBJECT EQUV v .,
SUBJNUM 028 - . , '. . . .
COMMENT '-'..
Texas Utilities believes the proposed controls on air emissions, ' '
' leaks, and sludges from surface impoundments managing .
decharacterized wastes would have a significant impact on .
our operations. As a result of operating 24 power plants with 54
boilers, Texas Utilities is familiar with the problem of managing
wastes resulting from the periodic cleaning of boiler steam
tubes in order to more efficiently produce electricity. Currently,
these boiler cleaning wastes are treated by containment in a tank
.for disposal off site. Subsequent wastes of the boiler tubes to
remove the cleaning solution residue are collected, as a diluted
solution, in surface impoundments near the boiler..
Three treatment alternatives for surface impoundments have been
proposed. Option 1 would rely on the end-of-the-pipe controls
contained in the Clean Water Act management standards in order to
: treatthe wastes. Clean Water Act controls are protective of the
environment for the treatment of discharges. Releases to air or /
groundwater should tie treated in accordance with existing state and
federal standards. A need has not been demonstrated for additional
controls. Texas Utilities would urge adoption of Option 1.
The additional controls on sludges, surface impoundment integrity^
and air emissions that EPA is contemplating in Option 2 are
necessary. Texas Utilities opposes Option 2 which would result in
needless expenditures by the regulated community.
TU opposes Option 3, which would prohibit the placement of
decharacterized wastewaters in surface impoundments unless the
waste is first treated to comply with treatment standards.
This option is not judicially mandated, is cost-prohibitive, and .
would provide only de minimis additional environmental protection.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, .which provides that the
* ' . ' ** . ' ' '
' . ' 344 .*
-------
wastes in question are no longer prohibited from land disposal once rendered 'nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today'.s Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
' emissions from surface impoundments (EPA proposed options on August 22,1995 (60 ER
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not.
,apply to TCmetal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ''',. ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface Impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. " . .
345 _ ' *
V-
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DCN PH4P029 . .
COMMENTER Acrylonitrile Group
RESPONDER PMC, . '. '.
SUBJECT EQUV ' ' ,
SUBJNUM , 029 ' , '* Y '
COMMENT' -
The AN Group then supported, with the CMA, a risk assessment by .
Gradient Corporation. We believe the findings of this report
further point to an unrealistically high estimate of risk by the
Agency (660 fold for the air pathway). Improper methodology and
obsolete and incomplete data have resulted in an Agency risk
estimate which is insupportable.
The Agency noted in the PhaseIV preamble that the risks involved
with this rulemaking "have the potential to vary from insignificant
to significant'(60 FR 43659), and that the Agency. is"required to
address these issues at this time although there may have been - ,
higher environmental priorities if EPA had sole discretion to order -
, its agenda." (60 FR43656).
We urge the Agency to take the Gradient study into full .
consideration, and forego, any further rulemaking by choosing Option
, 1. These truly insignificant risks do not warrant any
further resource expenditures from either the Agency or Industry. -
RESPONSE ."'";"
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity^or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR ,
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
' -' ' ,-' ' ' 346 ." ' :
-------
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.. . . '
DCN PH4P030 ., \ : '.
CQMMENTER National Petroleum Refiners , ' ' ,
RESPONDER PMC *' .-..,.
SUBJECT EQUV . , . . ' '
SUBJNUM 030 - " ,'-... . ' ' ; ' "
COMMENT '..--. . .
- 1. Existing Clean Water. Act controls are sufficient protection .
of human health and the environment, and therefore EPA should ' .
select Option I, which requires no additional controls.
The Clean Water Act (CWA) regulates surface impoundments and the
. . Safe Drinking Water Act (SDWA) regulates injection wells very
effectively because, according to EPA's proposal and comments to'
Congress, the risk not covered by these existing controls is very
low. EPA's data analysis supports the 1990determination by the ..-.''
. - Agency recognizing the value of treatment and disposal by the CWA
andsbWA. ' :
NPRA supports the legal analysis of API, which states that the '...
Third Third decision does not require additional requirements for
surface impoundments. Given the high cost of compliance 'with the
, LDR.rulemakings of $800 million per year and the minimal benefits,
EPA should select Option I for this rulemakihg. '
HR 2036 will restore EPA's original regulatory determination that
RCRA wastes that are no longer hazardous need not be treated as if -
. they were hazardous. HR203 6 restores the coordination between
RCRA, CWA, and SDWA and validates EPA's original decision.
RESPONSE
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that ,
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
; President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these -wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, arid air
,' emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
347
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.in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . '
However, the Land Disposal Flexibility .Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun- by the Agency in April,11996, may '
result in proposed regulations for.these, units, if risks are in fact found that would warrant such
regulation.. '' '..."...
348
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DCN . PH4P030
COMMENTER National Petroleum Refine
RESPONDER SS >
SUBJECT EQUV J /
SUBJNUM ,029., ' ' . . , .. ';,'.
COMMENT v ' . ,
2.? Recent EPA rulemakings have significantly improved the
environmental management of all media at refineries and
petrochemical facilities. These regulations have in turn
reduced the risk to human health and the environment from surface
- ' . ' . f '
impoundments resulting in negligible risks. - .
, . The Toxicity Characteristic (TC) rule, promulgated^ March 25,
1990, significantly reduced benzene and other hazardous,
constituents in wastewater. ,
The Primary Sludge Listing rule, promulgated on November 2,1990,
required sludge removal and converted impoundments to non-hazardous
service under closure provisions of 40 GFR 265,. 113.d-e.
The National Emission Standard for Benzene Waste Operations .
(BWON),promulgated on January 17,1993, resulted in the
segregation and treatment of benzene containing wastewater. In the ,
process complying with the BWON, most other organic constituents
such as toluene and xylene were also controlled in the wastewater
stripping prior to entering a surface impoundment.
The SOCMI HON rule, promulgated on February 28,1994; has reduced . -
hazardous air pollutants from wastewater and other sources at the.
petrochemical plant.
The RFG rule, promulgated on December 14,1993, requires
refineries to reduce the benzene content in gasoline. This change
in gasoline also results in the reductions of emission of benzene
at refineries. In addition, the gasoline distribution MACT rule,
promulgated on July 28,1995, reduces the emissions of benzene and
other air toxics from the refinery. Both of these rulemakings
have significantly lowered the,existing baseline emissions of air :
toxics from the refinery. The new air toxic emission baseline has
been reduced to a level that any additional regulation of air ;
toxics as proposed by EPA in Options 2 and 3 cannot be justified as
being cost effective. . .
RESPONSE: .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
349
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regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic); On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, oh April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final, rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43'677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ," .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,' 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , .
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DCN . PH4P030 . , -._., ' .
COMMENTER National Petroleum Refine . . .' '
RESPONDER SS .'.'.- . ' ' , '.',:'.;
SUBJECT EQUV , .
SUBJNUM 029 . , .. '
COMMENT - . . ' .' " - : ' .
1 ' (
3. The scope of Phase IV mlemaking should, not include any
additional requirements for surface impoundments: , . .
- Stormwater impoundments are very low risk and additional controls
proposed under this rulemaking cannot be justified as being . ' '.
cost-effective. . . ' ' '
Treatment impoundments managing non-hazardous wastewaters are ..
recognized in the Third Third opinion as integral CWA units.
, Stormwater impoundments are important equalizers that are required -
to maintain the efficacy of biological treatment systems and ensure
that the refinery is incompliance with CWA permits. Stormwater ' > '
impoundments also provide surge protection for wastewater treatment ^
" plants and thus prevent the rapid flushing of biorriass from the
wastewater treatment plant. As an integral part of the
CWA treatmentsystem, Stormwater impoundments should not be ;
regulated as RCRA units.
The management strategy for a Stormwater impoundment requires it ; .
to be empty whenever possible so that it can receive Stormwater."
Therefore, the residence time of Underlying Hazardous Constituents ' .
(UHCs) is low and the water driving fprce(head) is also low.
Further, decharacterized process wastewater constitutes only r
a fraction of the total storm water and is predominantly non-oily. ' t .
These factors limit the possibility of UHCs migrating out of the
Stormwater impoundment. , .
RESPONSE:
:In the August 22; 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or.toxicity when generated but are ho longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nbnhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for "these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges; and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655:43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
351
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apply to TG metal wastes if the characteristic, is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or,-for underground injection wells, the Safe
Drinking Water Act . . .
' '
There is one caveat. For characteristic hazardous wastes that are' managed in CWA or C WA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standards is recovery of
organics) remain prohibited unless treated pursuant to the promulgated method.. '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun,by the Agency in April, 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
352
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DCN PH4P030 / , ' '
COMMENTER National Petroleum Refine . , .
RESPONDER SS
'SUBJECT EQUV - -
SUBJNUM 029, . ;- . '"
COMMENT ' . ' ' ...... ''-..
4; - Advanced biological treatment (ABT) should-be designated as
Best Demonstrated Available Technology (BDAT) for wastewater and
1 wastewater sludges from refineries and co-located petrochemical
plants. - .
. , . The combination of ABTs and downstream geological impoundments .
provides long residence times of wastewater in treatment units, low
cost, ease of operation, and a cost effective approach to . ' ,
* ' maintaining compliance with the CWA permits.
ABT is a proven cost effective technology that meets the Universal
Treatment standards (UTS) and minimizes.analytical difficulties and .
monitoring burdens. , .
^ The CWA permits at refineries and petrochemical plants using ABT ;
are protective of human health and the environment.
RESPONSE: , . . - / -
As explained by the Agency in the preamble to the LDR Phase III final rule, biotreatment
systems vary in performance both in general and as to specific constituents. The Agency,
'therefore is reluctant to designate ABT as BDAT. The Agency has data related to the
'performance of ABT from only 10 facilities. The main reason for establishing ABT as BDAT
that was provided by commenters to the Agency, during the development of the final Phase III
rulemaking, was the elimination of the compliance monitoring burden. The Agency does not
believe that reducing monitoring burden is an adequate justification for creating a new
technology-specific treatment standard. However, EPA did decide, in promulgating the LDR
, Phase III final rule, to reduce the monitoring requirements for decharacterized wastes that are
managed in a wastewater treatment system involving ABT. These wastes must be monitored
annually to ensure compliance with the treatment standards for underlying hazardous
constituents. . . '-'-.
\
353
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DCN - -PH4P031
COMMENTEK Department oif Energy
RESPONDER
SUBJECT EQUV ' . .
SUBJNUM
COMMENT
031
I.F. Overview of Options
: 1. p. 43659, col. 2 - After outlining the three
regulatory options being considered by ' EPA (i.e., '
, for addressing cross-media transfer of hazardous
- constituents), the Agency states, that none of the \.
options would apply to units which satisfy the .
Minimum Technology Requirements [MTRs] or the .
statutory no-migration standard. -
With respect to the applicability of the three options,
DOE supports EPA's intention to exclude units that
satisfy MTRs or the no-migration standard. Waste
management units meeting MTRs or the
' no-migration standard are designed and operated to
prevent releases of hazardous constituents to the . <
environment, even when they manage wastes '
containing higher concentrations of hazardous
- constituents than are likely to be present in .;" ,
decharacterized wastes. For this reason, it should
not be necessary to impose additional controls on
such units under the LDR Phase IV rule. , .
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660);
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
hi a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act , _ . . .
354
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However, the-Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this stu4y, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that/would warrant such
regulation. . ,' t
355
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DCN PH4P031
CQMMENTER Department of Energy
RESPONDER PMC
SUBJECT- EQUV
SUBJNUM 031
COMMENT ''.'' ' '
" 1. DOE provided a number of comments (submitted to EPA on May 1,
. . 1995) in response to the Land Disposal Restrictions (LDR) Phase III
proposed rule. Several of these comments are pertinent, and
therefore reiterated, in regards to topics addressed in the LDR
Phase IV proposal.;'
On March 2,1995, EPA published the LDR Phase III proposed rule .
[60 FR 11702]. In part, the preamble discussed potential
regulatory approaches being considered by EPA that would '
address, through controls on cross-media transfers of hazardous
> constituents, the issue as to whether treatment received by
decharacterized wastes in Clean Water Act (CWA) and
CWA-equivalent impoundment-based wastewater treatment systems would
be equivalent to the RCRA §3 004(m)treatment standard. DOE offered
several comments in regards to the discussions on
cross-media transfer and equivalencyvissues. Some of these
comments are reiterated in this response to the LDR Phase IV
proposed.rule.
Specific DOE comments made in response to the LDR Phase III
proposed rule that are reiterated herein concern: (1) the
advisability of adopting, under RCRA Subtitle C (Hazardous
Waste Management) authority, regulations applicable to nonhazardous
waste management units, especially when existing or forthcoming
regulatory programs under other statutes may provide adequate ,
control; and (2) support for applying the change of treatability .
group principle to sludges generated by impoundment-based CWA
wastewater treatment systems that receive decharacterized, wastes.
2. With respect to the options presented in the LDR Phase IV
proposed rule for addressing potential cross-media releases of '
hazardous constituents (from surface impoundments managing
decharacterized wastes), DOE encourages EPA to choose the
regulatory scheme referred to as Option 1.
EPA explains that (based on available information) decharacterized
^ waste streams may contain hazardous constituents at concentration
levels of concern, and that such hazardous constituents could
potentially be released from surface impoundments handling these
waste streams. The Agency also points out that the risks due to
cross-media releases could vary from insignificant to significant.
356
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Hence, EPA is considering three regulatory options to address the
potential for cross-media transfer of hazardous constituents.
Under Option 1 , no separate LDR regulations would be issued.
Rather, other Agency programs(either existing or future) would be
relied upon to address releases. Under Option 2, controls would be '
promulgated under the LDR program which would apply only to
situations where releases pose excessive risks, and the risks are
not adequately minimized as a result of other existing or currently
planned EPA requirements. Under Option 3, LDR regulations would
be adopted that require all decharacterized wastes to be .treated to
meet Universal Treatment Standards (UTS) before entering any CWA
wastewater treatment system surface impoundment.
One of the Department's primary concerns with respect to -
establishing new requirements to control potential cross-media
transfer of hazardous constituents, is that these new.
requirements not overlap or conflict with standards developed
pursuant to other regulatory programs (e.g.,RCRA Subtitle D, CWA,
Clean Air Act (CAA) requirements). DOE acknowledges that all
three options proposed by EPA, if carefully implemented, could.
avoid dual regulation (and the Department supports this aspect of
the options). However, as is indicated more fully in the specific
comments below, DOE prefers Option 1 over Option 2 because of
concerns about the complexity of the regulatory framework that
would be required to implement Option 2, and the Cost of
.implementation. In fact, DOE believes that the complexity
associated with' implementing Option 2 would likely compel members
of the regulated community, including some DOE sites, to treat
decharacterized wastes to meet UTS prior to placing them in
surface impoundments, just to avoid the confusion (and accompanying
potential for noncompliance). .Furthermore, DOE prefers Option 1
over Option 3 because the Department agrees with EPA's assessment
that Option 3would destroy any accommodation between the CWA and
RCRA (which the court in Chemical Waste Management v. EPA expressly
recognized as congressionally intended) and would be very costly to
implement, without proportionate risk reduction.
I. .Options to Ensure That Underlying Hazardous Constituents ,
in Decharacterized Wastes are Substantially Treated Rather Than
Released Via Leaks, Sludges, and Air Emissions from Surface
Impoundments < -.--''
I.B. Background ' .
1. pp. 43655, col. 2 -43657, col. 2 -EPA explains that , '
portions of the LDR Treatment Standards promulgated in the Third
Third rule (55 FR 22520; 06/01/90) were vacated and remanded by the
357
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District of Columbia Court of Appeals in Chemical Waste Management,
Inc. v. EPA, 976 F. 2d 2, cert, denied 113 S.Ct. 1961 (1992)rEPA
indicates that one of the Court's holdings was that "situations
where characteristic hazardous wastes are diluted, no longer
exhibit a characteristic(s),and are then managed in centralized
wastewater management land disposal units(i.e., subtitle D surface
impoundments or injection wells) are legal only if it can
be demonstrated that hazardous constituents are reduced, destroyed,
or immobilized [in the centralized wastewater management system] to .
the same extent as they would be pursuant to otherwise-applicable
RCRA treatment standards." EPA refers to this as an "equivalency
demonstration". In the proposed LDR Phase III rule, EPA suggested
standards to address one portion of the equivalency demonstration
issue (i.e., treatment standards for end-of-pipe discharges from
CWA and CWA-equivalent wastewater treatment systems were proposed).
Pursuant to a settlement agreement regarding the court's mandate,
the Agency is also required to address a remaining issue associated
with equivalency of CWA and CWA-equivalent wastewater treatment
systems (i.e., options are being considered for regulating
cross-media transfer of hazardous constituents from CWA , ..
treatment systems to assure that RCRA treatment requirements are
not thwarted). .
a. In response to the LDR Phase III proposed rule, DOE expressed
concern that, although the preamble language indicated that the
final rule will apply only in situations where decharacterized
wastes are being managed in CWA, CWA-equivalent (including
zero-discharge),or other non-hazardous wastewater treatment
systems involving surface impoundments, the actual scope
encompassed by the proposed regulatory language was much broader.
As a result of the breadth of the proposed regulatory language, DOE
is concerned that the treatment standards established by the LDR
Phase III rule for end-of-pipe discharges from CWA,
CWA-equivalent and other non-hazardous wastewater treatment systems
receiving decharacterized wastes might be applied to outputs from
certain integral facilities of the DOE Savannah River Site's
(SRS)treatment system for mixed high-level wastes. These integral
. facilities are CWA-permitted facilities without liquid discharges
that could be construed as administering CWA-equivalent treatment
Because the LDR Phase III rule has not yet been finalized, and the
: proposed LDR Phase IV rule sets additional requirements to control
releases of hazardous constituents via air emissions, sludges and
leaks from the same wastewater treatment systems as were addressed
by the LDR Phase III proposed rule, DOE is now concerned that the
358
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LDR Phase IV final rule could also be applied in the case of the
"CWA-permitted integral facilities of the SRS mixed high-level waste .
.treatment system. It is DOE's understanding that this concern may
be alleviated by a clarification that EPA intends to include in the
LDR Phase III final, rule, but since DOE is not yet aware of the
exact nature of the clarification, the Department.offers below,
and in Attachment A, additional information concerning the SRS
situation. Alternatives that EPA might adopt to allay DOE's .
concerns are also provided. - .
Since EPA has' stated in preamble language that the LDR Phase III
and Phase IV rules are intended to apply to CWA and CWA-equivalent
wastewater treatment facilities utilizing surface impoundments, DOE
suggests the three alternatives described below for EPA's
consideration as. possible ways to achieve the clarification
requested above:-DOE requests that EPA adopt combination of the
first two alternatives in orderto comprehensively address the
Department's concerns. ' .
Alternative 1 -- Clarify the Regulatory Language Defining the -
Scope of the LDR Phase III RULE
'''.' . / *
DOE suggests that the language proposed for codification in 40 CFR
268.39(b) by the LDR PHASE III notice of proposed rulemaking (60 FR
11742) be changed to clearly state thatdecharacterized wastes
managed in surface impoundments are the wastes to which the .
new restrictions from, land disposal apply. The following
modifications are recommended: , '
§268.39 Waste specific prohibitions--spent aluminum potliners,
carbamates and orgaiiobromine wastes.
*.*,*' ' ,.''".-,.
(b) On [Insert date two years from date of publication of the .
final rule],characteristic decharacterized wastes mat are managed
in systems a surface impoundment whose discharge is regulated under ,
the Clean Water Act (CWA), or decharacterized wastes that are .
managed by zero dischargers in surface impoundments mat engage in
CWA-equivalent treatment before ultimate land disposal, are...
Alternative 2 Specifically exclude certain CWA and
CWA-equivalent wastewater treatment facilities from the LDR Phase
III and Phase IV rules
DOE suggests that EPA also consider specifically excluding from
the LDR Phase III and Phase IV rules (regardless of which Phase IV
option EPA chooses to adopt) facilities* like the SRS Saltstone
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Processing and Disposal Facilities that are permitted under
State-implemented CWA AND solid waste disposal legislation, but
that have no surface impoundments, no "end-of-pipe"discharge to-
surface waters or to publicly owned treatment works (POTWs), and
no permitted outfall locations. It appears that EPA does not
intend such facilities to be regulated by either the LDR Phase III
or the LDR Phase IV rules. Nevertheless, since EPA has not
specifically proposed excluding facilities of this type, DOE is
uncomfortable mat future interpretations of applicability - .
may somehow result in the inappropriate application of LDR
controls. For this reason, DOE requests that EPA consider
incorporating specific exclusions in both the LDR Phase III and
LDR PHASE IV final rules. ''
Alternative 3 - Adopt the proposed LDR Phase IV, Option 1
The proposed LDR Phase IV rule offers three options for adding (to .
the end-of-pipe standards proposed by the LDR Phase III rule)
controls on hazardous constituent releases in air
emissions, sludges and leaks from CWA and CWA-equivalent surface
impoundments that manage decharacterized wastes. Under Option 1,
EPA proposes that no added controls be mandated. Instead, existing
or forthcoming regulatory mechanisms which tend to protect against
releases would be relied upon. Included among the federal and
State regulations which the proposed LDR PHASE IV preamble
.describes as possibly providing control of excessive releases from
surface impoundments receiving decharacterized wastes are those '
under RCRA §3004(u) requiring that corrective action be performed
to remediate releases of hazardous constituents from solid
Waste Management units at permitted RCRA treatment, storage, or
disposal facilities (TSDFs) [60 FR43659, col. 3], The preamble
notes that surface impoundments which manage Decharacterized Wastes
at RCRA TSDFs would meet the definition of a solid waste
management unit. A similar approach, with regard to surface
impoundments receiving decharacterized wastes at RCRA TSDFs, is
also proposed as a component of Option 2 [see 60 FR 43660, col. 3,
- 43661, col. 1].
The SRS is operated as a RCRA TSDF under a site-wide permit. As
such, all solid Waste Management units at the SRS site (including
those located within the Saltstone Processing and Disposal
Facilities) are subject to corrective action requirements under
RCRA §3004(u).Therefore, although the SRS Saltstone Facilities are
not impoundment based, if EPA chooses to implement the proposed LDR
Phase IV rule, Option 1, it appears that such SRS Facilities ',
would not be subjected to added controls for the purpose of
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containing certain hazardous constituent releases. For this
reason, DOE supports the adoption of Option 1 in order, to
alleviate concerns about the applicability of the LDR Phase IV rule
to the SRS Saltstone Facilities. : , . '. .
The adoption by EPA of the proposed LDR Phase IV rule, Option 1
would similarly alleviate DOE's concerns about added controls on
the SRS Saltstone Processing and Disposal Facilities if State
environmental controls on facilities that receive decharacterized
wastes, such as groundwater monitoring for hazardous constituents
and cleanup authorities, were recognized as a basis for not
subjecting the Saltstone Facilities to such added controls. EPA
..mentions this approach in the proposed LDR Phase IV rule, Option 1
preamble [60 FR 43660, cols. 1&2]. The Saitstone Processing and
Disposal Facilities operate, respectively, under'a SCDHEC
Industrial Wastewater treatment Facility permit and a SCDHEC
Industrial Solid Waste Disposal Facility permit. These permits
require periodic Toxicity Characteristic Leaching Procedure (TCLP)
analyses to insure that no hazardous waste is placed into the
concrete vaults. Equally important, the State requires that ground
water monitoring wells be installed around the disposal vaults.
This monitoring is routinely performed to identify potential
releases from the vaults. If releases are identified, corrective
measures must be investigated. Therefore, the SCDHEC permit
conditions require the SRS Saltstone Facilities to routinely
demonstrate compliance with State requirements that the proposed
LDR Phase IV rule preamble recognizes as potentially sufficient to
satisfy the need for added controls on CWA and CWA-equivalent
wastewater management systems in order to contain certain hazardous
constituent releases. Hence, DOE urges EPA to adopt the
proposed LDR Phase IV, Option 1, with recognition of the South.
, Carolina wastewater treatment operating standards as sufficient to
provide any. necessary added controls. This would alleviate
DOE's concerns about the applicability of the LDR Phase IV rule to
the SRS Saltstone Facilities.
I.C. Applicability of Potential Approaches to "Industrial D"
Management Units . '
1. p. 43657, col; 2 - EPA states that the three optipns.being
considered in the proposed rule to ensure that underlying hazardous
constituents in decharacterized wastes are substantially treated
rather than released via leaks, sludges and air emissions
from surface impoundments will specifically apply to Subtitle D
(nonhazardous) surface impoundments that receive decharacterized
wastes: -
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As DOE has indicated in response to previous LDR-related notices,
the Department is concerned with the potential proliferation of
. overlapping regulatory requirements developed pursuant to different
statutory authorities., The occurrence of such overlapping
environmental requirements under separate regulatory programs -
should be avoided to minimize confusion within the
regulated community and to eliminate conflicting standards: With
this concern in mind, DOE continues to encourage EPA not to impose
RCRA Subtitle C requirements on waste management units which are
not managing hazardous wastes. Instead, if regulations on leaks,
air emissions and sludges from-Subtitle D surface impoundments
managing decharacterized wastes are deemed necessary to ensure
treatment of underlying hazardous constituents, DOE believes these
regulations shoulu be implemented under RCRA Subtitle D (40 CFR
part 258, or another appropriate Subtitle D set of regulations) for
leaks and the Clean Air Act (CAA) for volatilization, rather than
in the LDR program under RCRA Subtitle C (40 CFR part 268).
require an evaluation m accordance wtoRGRA corrective
^tera^^
^offer^^
''|^;R.CRA Corrective Actioni'Stafe envirorunental prog
'
............ ....... ;""" _
THIS TEXT IS IN 'THE WRONG PLACE! "" ~ , ' .
. . . ' " " ' . i
I.G.- Option 1
1. p. 43(559, col. 2 EPA describes Option. 1, which relies on
the end-of-pipe standards proposed in the LDR Phase III rule to
satisfy the requirement articulated by the court in CWM v. EPA,
that treatment of decharacterized wastes in impoundment-based
CWA wastewater management systems to address underlying
hazardous constituents (UHCs) must be equivalent to treatment that,
would otherwise be administered under RCRA. EPA also describes how
federal and State regulations may otherwise provide for control of
excessive releases due to air emissions, sludges and leaks from
surface impoundments receiving decharacterized wastes.
As DOE has commented in response to previous notices regarding the
LDR program, the Department is concerned that proliferation of
overlapping regulatory requirements (stemming from various
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statutory authorities) should be avoided to minimize confusion N
within the regulated community and to eliminate conflicting
standards. DOE has also previously urged EPA not to establish
equivalency demonstration requirements in response to CWM v. EPA
that go beyond demonstrating end-of-pipe equivalence. Consistent
with these earlier comments, DOE now.supports Option 1 (i.e., not
to issue additional requirements under the LDR program, but ; .
rather to rely on other federal and State regulatory programs).
As EPA indicated in the preamble, a number of other federal and
State regulations already provide environmental controls on surface
impoundments that receive rionhazardous wastewaters. For example,
there are CAA regulations that have been promulgated or are under
development which impose controls on hazardous air pollutants
(e.g., the Hazardous Organics National Emission Standards for
Hazardous Air Pollutants (NESHAP)) and would apply to certain
CWA impoundment-based treatment systems. Furthermore, surface
impoundments that manage decharacterized wastes are solid waste
management units when they are co-located with a unit subject to a
RCRA permit. In this case, all releases from such units will
require an evaluation in accordance with RCRA corrective action
regulations to determine whether releases from those units pose a .
threat to human health and the environment Considering the
coverage offered by these other regulatory programs (i.e., CAA, /
RCRA Corrective Action, State environmental programs, and others),
DOE believes Option 1 will provide protection that is basically
comparable to Option 2 -- but will be less costly to implement ,
because of the reliance on existing and planned regulations,
I.H. Option2
1. p; 43660, col. 2 - EPA lists seven objectives that the
Agency tried to accomplish in defining regulatory Option 2 for
controlling leaks, sludges and air emissions from impoundment-based
CWA wastewater treatment systems. Included among this list are the
following three objectives: focus controls on those situations
that present risks that amount to significant permanent disposal;
avoid duplication with other EPA requirements; and, minimize
implementation burden. '' .
DOE approves of EPA's efforts to avoid duplication of other
requirements, as indicated in the preceding comments. The
Department also appreciates EPA's efforts to focus only on higher
risk situations. However, it appears that the Agency's effort to .
minimize implementation burdens may fail in regards to this option.
In fact, DOE believes that the implementation approaches
associated .
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-with Option 2 could be expensive, and so complex that members of
the regulated community, including some DOE sites, would likely
elect to treat decharacterized wastes to meet UTS prior to placing -<-
them in surface impoundments (just to avoid the confusion and the-.
accompanying potential for noncompliance). More specific
information about this concern is provided below.
I.H.2 Applicability
1; p. 43660, col. 3 -EPA'explains that the management standards
being considered under Option 2 (for leaks, sludges and air ,
emissions from surface impoundments accepting decharacterized
waste) would be applicable to certain facilities (or wastes)which ,
are not addressed by other EPA regulatory programs or which do not
meet proposed criteria for screening out low risk situations.
Since EPA is not proposing actual regulatory language, it is
unclear exactly how Option 2 would be implemented. However, it
appears that implementation could greatly complicate the management
and treatment of decharacterized waste streams, especially in the
area of deferrals to existing regulatory requirements, or
requirements under development For example, EPA states for air
emissions that:
Standards (unspecified) regulating total volatile organics
will be considered to adequately cover air emissions of UHCs.»
Facilities subject to CAA standards for hazardous air pollutants
will not be covered by Option 2.» Facilities subject to CAA
standards that are under development will not be covered by Option
2. . , ' '' -" ' .
'DOE requests clarification as to how EPA will evaluate individual
, impoundment-based CWA WASTEWATER treatment systems to determine
whether any of these deferrals apply. Will each facility be
required to make its own determination and file a certification?
If so, how will individual facilities know whether they will be
covered by standards that are still being developed?
Will EPA adopt additional standards under the LDR program for
facilities that are not eligible for deferrals? If so, will
facilities have the option to demonstrate compliance with such
LDR standards in lieu of seeking deferrals, even though they may
qualify for deferrals? DOE believes that determining whether
deferrals are available to facilities could become a complex .
process. Therefore, facilities may feel compelled to comply with
promulgated LDR standards instead of seeking deferrals, in order to
ensure proper compliance and avoid mistakes involving
regulatory interpretation.,
DOE has similar concerns about deferrals related to sludges and ,
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releases to ground water. .
"In addition to deferring regulation of facilities to other
programs, EPA mentions that it expects to
exclude certain'wastes and waste management facilities from
control under Option 2 LDR regulations because such wastes and
facilities present low risk. DOE supports this concept, but again,
it is unclear how these criteria for screening out low risk
situations will be specifically implemented. For example, will the :
exclusions all be self-implementing so that facilities to which the
Phase IV rule applies will .simply need to maintain adequate
records on-site to demonstrate applicability? Or ,will facilities
be required to submit certification either with or . .
without supporting documentation?
Because of the concerns stated above, DOE encourages EPA not to
choose Option 2 for regulating surface impoundments that receive
decharacterized wastes. While Option 2 attempts to focus the'.
applicability of proposed management standards on a smaller subset
of situations (i.e., .. -
by excluding wastes and facilities that do not present excessive
risk, and deferring wastes and facilities covered by other
regulatory programs), DOE believes any advantages of this
approach could be lost because both regulators and the regulated
community would be confounded by the complicated implementation
scheme. Further, if me implementation scheme turns, out to be
as complex as DOE believes it could, adopting Option 2 would seem
to contradict EPA's goals to"simplify and streamline" the LDR
program in order to make it more efficient and easier to implement.
It is also questionable whether-the development of such a
complicated regulatory framework is warranted when considering the
overall environmental risks associated with the management of ,
decharacterized waste in CWA treatment systems.
b.. DOE requests clarification of the sentence which reads:
"However, substantive requirements, borrowed from [40 CFR Part 264,
Subpart GC], could apply to surface impoundments receiving
prohibited, decharacterized wastes." In the sentence that ,
immediately precedes this one in the preamble, EPA states that
Subpart CC rules would not apply directly to surface impoundments
covered by LDR Phase IV. Does this mean that, if EPA goes
forward with Option 2, the Agency will promulgate LDR regulations ,
in 40 CFR Part 268 which essentially copy certain sections of 40
CFR Part 264, Subpart CC? Or, will selected sections of the
Subpart CC regulations be referenced? DOE suggests that, if EPA
goes forward with a regulatory approach that applies certain
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requirements from Subpart CC to surface impoundments covered by the
LDBL Phase IV rules, referencing pertinent sections of Subpart CC
would be preferable to creating a duplicate set of regulations.
I.H.4.C. Surface impoundment management standards
1. p. 43669, col. 2-Initially in section I.H.4.C of the --. '
preamble, EPA states that "[t]he Agency is proposing to use annual
sampling of the wastewaters in the surface impoundment to determine
if regulated constituents (LC., UHCs)are present ~
at concentrations that exceed the trigger level" (emphasis added). . ;
EPA -states that UHCs are to be determined by characterizing each
new decharacterized wastewater at its point of generation. Later,
EPA states that "[t]o determine if a trigger level has been
exceeded, the owner or operator would calculate an annualized
average concentration for each regulated constituent identified"
(emphasis added). It is further explained that a minimum of four
sampling events'(i.el, quarterly) would be required for calculating
the annualized average concentration.
If EPA chooses Option 2 for regulating surface impoundments that
manage Decharacterized Wastes, DOE requests that EPA clarify in the
final rule whether impoundment sampling will be required annually,
or four times per year (i.e., quarterly) in order to support,
calculation of an annualized average. DOE suggests that, rather
than quarterly, each facility be required to sample in a manner and
at a frequency which appropriately reflects the nature of the
wastewaters and operations undertaken at the facility, and that an
annualized average (based on such sampling)be used to evaluate
whether the trigger levels have been exceeded.
I.HAd. Ground water and corrective action management standards
I.H.4.d.i. - MSWLFrule ,
1. p. 43670, cols. 1&2 ~ EPA proposes to adopt only the self
implementing provisions of the Municipal Solid Waste Landfill
(MS WLF) rule, but seeks comment on whether the multi-unit provision
(allowing state approval of a multi-unit ground-water monitoring
system based on site-specific considerations) and any other
site-specific provisions in the MSWLF rule should be allowed to be,
self-implemented.. ' -
DOE agrees that multi-unit monitoring may be the most efficient
and reasonable approach in circumstances involving closely spaced
surface impoundments. Therefore, if EPA chooses Option 2 to
i regulate surface impoundments that manage decharacterized wastes,
DOE would support including regulatory language flexible enough to
allow facilities to use multi-unit ground-water monitoring when
appropriate (i.e., when such a ground-water monitoring system is as
366
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protective, of human health and the environment as ail individual
monitoring system),Furthermore, DOE would favor making such
regulations self-implementing. , . - - , -
I.H.4.d.ii. Ground water monitoring
1. "p.43670, col. 2 - EPA proposes to require that, within one
year of triggering groundwater monitoring, the .owner/operator' >
install a ground water monitoring system and begin monitoring.
DOE believes that designing,-iristalling and beginning operation of
a ground water monitoring system within one year of detection of
regulated levels of hazardous constituents.in a surface impoundment
will be difficult for federal facilities for budgetary reasons. .
Federal facilities need at least one year to allocate funding for '
new activities. Therefore, DOE suggests that EPA
allow owner/operators to submit requests for extensions beyond the /
one year limit for installing aground water monitoring system.'
Alternatively, EPA could allow the ground water monitoring system
installation schedule to be negotiated on a case-by-case basis.
2. ,p. 43671, cols;,l& 2 - EPA indicates that owner/operators
would be required to move directly to an assessment of corrective
measures upon detecting statistically
significant levels of UHCs above the constituent-specific ground
water protection standards.as determined by 40 CFR 258.55(h) of the
MSWLFrule, ' . ' . :
DOE believes that the ground-water monitoring program under Option
2 (if implemented) should provide.an opportunity for rebuttal of
the presumption that assessment of corrective measures.is required .
upon detecting UHCs in the ground water at statistically
significant levels above the constituent-specific ground water
protection standards as determined by § 258.55(h).Incorporating
such a provision would be consistent with regulations proposed by
EPA for corrective action of solid waste management units (SWMUs)
at hazardous waste management facilities [see Preamble to Proposed
40 CFR Part 264, Subpart S, 55 FR 30798, 30814, cols. 2 &3 ;
(07/27/90)]. Under the proposed Subpart S regulations, permittees
of RCRA treatment, storage and disposal facilities would be allowed
to rebut the presumption that a corrective measure study is
required when action levels are exceeded in ground water. For
example, a rebuttal might be successful if the permittee
established that the contamination did not result from
leaks in the surface impoundment, or that risk from the
constituents being released was within ah acceptable range. DOE
favors basing corrective action decisions on the potential for
threats to human health and the environment. .
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I.H.4.d.iii. Integration of Option 2 with existing programs
1. p. 43671, col. 3 EPA observes that many of the facilities
that would be subject to the requirements of Option 2 will be
undergoing ground water monitoring and corrective action under
existing state or federal authorities. The Agency states that it , .
will defer to such programs if they are substantially similar to
the Option 2ground water and corrective action management
standards (i.e., the programs include the UTS constituents of
. concern, and have substantially similar requirements regarding the '
monitoring wells and the frequency of monitoring).
EPA has not proposed a mechanism whereby facilities can ascertain
whether ongoing ground-water monitoring and/or corrective actions
are "substantially similar" to the Option 2program. DOE requests
that the final LDR Phase IV rul$ provide clarification as to
what constitutes a finding of substantial similarity (i.e.,
identify the associated criteria), and how and by whom a
determination will be made that existing ground water monitoring
and corrective action requirements at a facility are substantially
similar. Since DOE funds are limited, the Department is especially
concerned about how new ground water monitoring requirements will
be integrated with the existing requirements under CERCLA, consent
orders, and compliance agreements at DOE facilities.
2. p. 43672, col. 1 EPA requests comment on whether, as an
alternative to requiring facilities to commence directly with a
corrective measures assessment upon detecting UHCs in the surface
impoundment (at levels "above regulatory concern"), the requirement
should be to undertake a detection monitoring program. Under
this alternative, if trigger levels were exceeded in the surface
impoundment, groundwater monitoring would be required for a set of
indicator parameters that provide a reliable indication of the
presence of hazardous constituents. The focus of the
initial ground water monitoring, therefore, would be the detection
of releases, rather than the detection of site-specific UHCs that
are regulated.
DOE would support a program that allowed confirmation of a release
before requiring assessment of corrective measures.
I.I Option 3 ' ' " '
1. p. 43675, col. 3 . EPA indicates that a third option, Option
3, for addressing the potential problem of releases of hazardous
constituents from decharacterized wastes in surface impoundments
would be to require wastes to meet UTS for the UHCs before entering
the impoundment (unless the impoundment met MTRs or was qualified
for a "no-migration" exemption). EPA expresses its view that
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Option 3should not be the exclusive approach for reasons of law
and policy. ..-',' ' ' - * ."'
DOE agrees that treatment of characteristic wastes to meet UTS for
UHCs should not be adopted as the exclusive method for addressing " . .
the potential problem of releases of hazardous constituents from i
' . decharacterized wastes in surface impoundments. As EPA has.,
stated, adoption of the approach presented by Option 3 would be -
contrary to the position held by the D.C. Circuit (in CWM v. EPA) \ ,'
that "RCRA requires some accommodation with the CWA." Also,
. requiring;all treatment of characteristic wastes to occur upstream
of CWA, CWA-equivalent and other nonhazardous impoundment-based .
wastewater treatment systems reduces flexibility of ..-.',-
Waste Management operations. As previously stated, DOE favors .
Option 1. ' . -. , . . '
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment Via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Qlean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the ..
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As.
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the^wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe ,
Drinking Water Act.
However, the Land Disposal, Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
369,
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DCN . PH4P031 ' . - :-.
COMMENTER Department of Energy
RESPONDED SS ,
SUBJECT EQUV . - -,
SUBJNUM '031 ' . . ' ,- .<' .'."'.-
COMMENT / , ;.-.
3. DOE suggests that EPA publish for comment a supplemental
notice of proposed rulemaking indicating the option selected for ,
addressing cross-media transfers of hazardous constituents from
impoundment-based CWA, CWA-equivalent and other nonhazardous
wastewater treatment systems covered under the LDR Phase IV
rule. ,The supplemental notice should include EPA's suggested
regulatory language for implementing the selected option. .
While DOE recognizes that EPA may not be legally required to
solicit public comment on actual proposed regulatory language for
implementing the selected option for addressing
cross-media transfers from the surface impoundments covered by LDR
Phase IV, the Department believes that EPA and the regulated
community would benefit if EPA sought such comment. Providing
the regulated community with the opportunity to examine and respond
' to proposed regulatory language would serve to reduce or minimize
. problems with the implementation of any new requirements.
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
.Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. -
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
x - ' ' ' 370 '
-------
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
371
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DCN PH4P031 . , . : '
COMMENTER Department of Energy s
RESPONDER - SS . '
SUBJECT EQUV ' ,
SUBJNUM 031 . v '"'.-.-
COMMENT " ' . ' . '
I.H.3. Proposed Management Standards for Air Emissions
1. p. 43663, col. 3 - EPA explains that Option 2 would borrow .
requirements from 4,0 CFR Part 264, Subpart CC regulations, to. ;
develop standards for "air emissions from surface impoundments in
CWA, CWA-equivalent, or other nonhazardous wastewater treatment
systems accepting decharacterized wastes. The proposed
air emission standards would apply only if the decharacterized
waste (containing UHCs above UTS at the point of generation) placed
in the unit is determined to have an average volatile organic
concentration greater than or equal to 100 ppmw based on the
organic composition of the waste at the point of generation.
'a. In previous comments, DOE has expressed concern about
extending the applicability of RCRA Subtitle C air emission
. , controls to nonhazardous waste management facilities, such
as surface impoundments in CWA, CWA-equivalent or other
nonhazardous wastewater treatment systems, as part of the LDR Phase
IV rule. DOE continues to question whether EPA has authority under
RCRA Subtitle C to impose controls on air emissions from .
nonhazardous waste management facilities.
As was stated in the Department's earlier comments on the LDR
Phase III proposed rule, EPA promulgated 40 CFR Parts 264, Subpart
CC and 265, Subpart CC based on specific authority to regulate air
emissions from hazardous waste treatment, storage and disposal
facilities (TSDFs)granted by the Hazardous and Solid Waste
Amendments of 1984, which added §3004(n) [Air emissions] to RCRA
Subtitle C. Additionally, EPA had determined that existing and
future Federal standards under the CAA and State air standards . :
would not adequately address the control of organic emissions from
such TSDFs [59 FR 62906, col. 2-3 (Dec. 6,1994)].
Similar circumstances are not present to justify adopting controls
on surface impoundments in CWA, CWA-equivalent, or other
nonhazardous wastewater treatment facilities that receive
... only nonhazardous and decharacterized wastes. To the contrary, on
its face, RCRA §3004(n) does not apply to the nonhazardous waste
management facilities which will be the subject of the LDR Phase IV
rule. Further, the court in CWM v. EPA made no ruling requiring
EPA to conclude that Congress intended RCRA §3004(n) to extend to
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nonhazardous waste management facilities. Meanwhile, §112 of the
CAA establishes authority, whereby EPA can regulate hazardous
air emissions from nonhazardous waste management facilities, and , :
RCRA§1006(b) requires EPA to coordinate its regulations under RCRA
with the CAA, and to avoid duplication, to the maximum extent
practicable. Based on this analysis, DOE continues to believe - .
that EPA may not be authorized by RCRA Subtitle C to impose . '. .
requirements on surface impoundments in CWA, C WA-equivalent and
other nonhazardous wastewater treatment facilities simply because . . \
they receive decharacterized wastes. Therefore, DOE again urges
EPA to defer regulation of air emissions from such surface .
impoundments to the appropriate CAA regulatory program.
7 - , \
.RESPONSE: , . , ..''..''
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in.systems ,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the .
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act -
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
Risks from air emissions will be considered in this study. The commenter is correct in noting
that Parts 264 and 265, subparts CC, of 40 CFR regulate certain air emissions from hazardous
waste management units such as surface impoundments, as well as all units downstream from the
point of introduction of a specific hazardous waste, until such time that treatment of the volatile
organic chemicals occurs. .The subpart CC requirements are limited to specific volatile organic
chemicals present at greater than 100 ppmw in these hazardous wastes. EPA cannot predict at
this time whether additional volatile or semi-volatile .oirganics not addressed by the subpart CC .
requirements may prose a potential risk to human health and the environment. EPA may
373
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\
consider additional requirements for air emissions from hazardous,waste management units if
such requirements are indicated by the risk assessment. ^ . ,
NOTE TO EPA: Do we need to respond to commenter's assertion that RCRA §3004(n)
does not apply to non-hazardous waste management facilities?
374
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DCN PH4P031 . ' '
COMMENTER Department of Energy
RESPONDER SS -
SUBJECT EQUV . :
SUBJNUM -031 . . - . '
COMMENT ' ; ' ,- v " " ' ' " '- . ,-..-'.
I.H.7. Sampling and Analysis '."-'
1. p. 43675, cols. 2 & 3--EPA states that sampling and
analysis requirements under Option 2 would hot be burdensome, and
that .generator knowledge could be used in
-------
The Agency previously provided guidance on what constitutes generator knowledge in the Phase
II proposed rule at 58 FR 48111 (September 14, 1993). - . , ,
376
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DCN PH4P031-
COMMENTER Department of Energy
RESPONDER.^SS .
SUBJECT EQUV ' ' . .:
SUBJNUM 031. ' " \ .\ '.'- -,'.'.
-COMMENT; ^' ' '''"=.:
4. DOE suggests that, in order to avoid possible confusion, EPA
define the term "decharacterized wastes," since receipt of such
wastes designates the surface impoundments to which the LDR Phase
IV rule applies. '
DOE suggests that the terms "decharacterized wastes" and > ' _
"decharacterization" may not be entirely self-explanatory. . . - .
' . Therefore, since these terms are repeatedly used in the preamble
' of the LDR Phase IV proposed rule-'to delineate the surface \
impoundments to which the proposed rule will apply, DOE believes it
would be helpful to the regulated community if one or both
terms were defined, either in 40 CFR 260.10 or 40 CFR 268.2. '
RESPONSE: -. ', . . ' . ' ,
EPA uses the term "decharacterized" in describing wastes that ho longer exhibit brie or more of
the characteristics of hazardous waste. Decharacterized wastes are wastes that have been treated,
permissibly diluted, aggregated or otherwise altered so that the waste no longer exhibits.a
hazardous waste characteristic (e.g., decharacterized). The hazardous waste .characteristics are
defined in 40 CFR Part 261,subpart C. Given EPA's general use of the term to describe a broad
universe of wastes (rather than using the term to designate a specific waste type), and. given that
the Agency received no other comments pointing out any ambiguities with the term, the Agency
does not feel compelled to define the term within the Code of Federal Regulations at this time.
J - . - ,-,'
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitability; corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the,
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. , . . ' . ,
377
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However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in;fact found that would warrant such
regulation. , , >
378
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DCN - PH4P031 . .
COMMENTED Department of Energy . '
RESPONDER SS - . " '
SUBJECT EQUV ,- " ' ''
SUBJNUM 031 ' ' ;
COMMENT : - * "'..'' .''-''
I.H.7. Sampling and Analysis '
1. p. 43675, cols. 2&3 -EPA states that sampling and ...
analysis requirements under Option 2 would not be burdensome, and
that generator knowledge could be used in lieu of sampling and
analysis. Section I.D.3.C is indicated as discussing : .
what constitutes acceptable generator knowledge. -
DOE supports allowing generator knowledge as an alternative to ...
sampling'and analysis. For that reason, the Department is . . ,
interested, in EPA guidance on what constitutes acceptable
'generator knowledge. Since the LDR Phase IV proposed rule contains - -
no section I.D.3.C providing such guidance, DOE requests that, if .
Option 2 is chosen, EPA include in the preamble to the final rule,
the guidance it intended to put in section I.D.3.c. of the ' ,
proposed rule preamble. " ,.
RESPONSE: . ' - . -
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents.in decharacterized wastes were hot released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
'regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the' ,
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal .wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ;. ." '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
^result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . .
379
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The Agency previously provided guidance on what constitutes generator knowledge.in the Phase
II proposed rule at 58 FR 48111 (September 14,1993), , -..'.
380
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. DCN . PH4P033 .
COMMENTED CMA Carbon Disulfide Panel .
RESPONDER PMC .
SUBJECT EQUV ' - '
SUBJNUM -033 ' . " ' . - '.
COMMENT ' - ' '.,"" ..'/ " '
The Panel.urges EPA to adopt Option! as set forth in the proposed . .
'. rule--.not promulgated land disposal restrictions (LDR)
requirements for air emissions, leaks to ground water, sludges,
or wastewater discharges. EPA has acknowledged that the phase IV r '
.rule addresses relatively minor risks.2 Implementing Option 1 would , '
fully address these minor risks. . ' . , ,
Moreover, Chemical Waste Management v. EPA 3 requires EPA to
. select Option 1. At the very least, Option 1 inconsistent with the
Chemical Waste Management decision. In addition, and as discussed
in me comments separately-submitted by CMA, the equivalency of
existing and forthcoming Clean Air Act and Clean Water Act ,
.regulatory programs will ensure the protectiveness of Option 1.
Finally, if EPA nonetheless decides to adopt Option 2, the Panel ,
urges EPA to make the modifications to Option 2 proposed by CMA in
its comments. , . '
- - > .
RESPONSE v -
In the August 22,1995 Phase IV proposal, EPA discussed three options.for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are ho longer characteristic). On March -16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
' Drinking Water Act. . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
. , surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
381
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regulation.
DCN PH4P034 ,
COMMENTER GMA
RESPONDER
SUBJECT E0UV
SUBJNUM 034^
COMMENT
Minimize the Impact of the'Phase IV Proposed Rule
on Facilities with Approved No Migration
Exemptions
CMA member companies operate approximately 120
Class I injection wells, two thirds of which inject
hazardous waste and have obtained no migration
exemptions. The cost of petition modification has
become an enormous burden for injection well
operators. The average cost to complete the no
migration exemption process has been $876,000
with almost half of the facilities incurring costs,
exceeding a million dollars. Many of these .petitions
were modified due to changes in regulatory
requirements such as are contemplated in today's
rule. These modifications have resulted in an
additional $206,000 per facility on average. The
costs reported herein do not reflect the costs incurred
by the Agency to review and process the petitions.
The UIC Group believes that many of the petition
modifications that have been required, and might be
required, are not only unnecessary, but are >
unwarranted to satisfy the intent of the no migration
exemption provisions. EPA should recognize the
strong scientific and technical foundation on which
the Agency has based its conclusions that injection
into Class I wells is a safe and effective waste
management tool. Class I wells are thoroughly
regulated, particularly those wells that have
completed the no migration exemption process.
EPA should not waste resources to further regulate
these Class I wells, since EPA's own comprehensive
comparative risk assessment determined that
injection of waste is virtually the safest form of
382
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disposal and is safer than landfilling the.waste, v
incinerating the waste, or even storing the waste in a
tank. Restrictions on Decharacterized Wastes
Should Not Affect Facilities With Approved No
Migration Exemptions. EPA has the authority
and has already committed to allowing facilities'that
have obtained no migration exemptions to be exempt
from specific further regulations.- EPA and the UIC
Group agreed to settle a lawsuit by signing a
settlement agreement which confirms that facilities
with approved no migration exemption that does not
change the waste stream injected will not be affected
by LDRs which affect decharacterized wastes.
Given the fact that the entire waste stream/was
evaluated during the petition process, approved no
migration petitions address any characteristic wastes
that may be rendered nonhazardous prior to
injection. Consequently, it is unnecessary to layer
additional requirements onto these facilities . Even
though EPA continues the.process of refining the
LDR program, the injectate has not changed and the
conclusions of the no migration petitions remain
valid. Changes to the definition of the point of
generation and to the definition of characteristically
hazardous wastes should not force the facilities that
have approved no migration petitions to submit
additional modifications. These additional
modifications provide no extra protection or benefit
to. the environment. In short, it is clear that:
"...characteristic wastes that cease to exhibit a
characteristic prior to. injection are exempted
from the land disposal prohibitions to the same
extent as hazardous waste injection into Class I
wells with Agency-approved no-migration
exemptions, regardless of whether the applicable
waste codes for the characteristic are specified in the
final petition's approval. No further
demonstration would be required for characteristic ,,
wastes that are rendered nonhazardous prior to
injection absent the introduction of a new
constituent not already considered in the
demonstration." The Phase IV proposal should
not result in the needier facilities to modify
383
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petitions even though the injected waste has not
changed and the waste at the point of injection is not
characteristically hazardous. EPA can prevent this
.misuse of public and private funds by clarifying that
the LDRs do not affect Class I wells that inject,
decharacterized wastes and that have obtained no
migration exemptions. The proposed requirement
to impose additional regulatory burdens for
newly-identified TC metal wastes is especially
disconcerting because EPA is merely requiring an
alternative extraction procedure and is-not changing
the constituents of concern. In the Third Third LDR
rule, EPA established treatment standards for wastes
that were characteristically hazardous wastes as
determined by the Extraction Procedure (EP). EPA
now requires use of the Toxic Characteristic
Leaching Procedure (TCLP) to determine whether
wastes containing metals are characteristically
hazardous. The change in extraction procedures will
result in some additional wastes being captured by
the LDRs that previously had been evaluated and had
been determined to be nonhazardous. These wastes
will become regulated even though EPA has not
changed the constituents of concern, but rather the
method used to determine the concentration present,
and is now proposing to regulate these wastes as
newly-listed wastes. Fundamentally, wastes that
are hazardous due to elevated levels of metal . .
constituents were evaluated during the petition
process based upon the definition that was current at
the time of petition preparation. The injectate, at the
point of disposal, was analyzed for metals and that
analysis was included in the petitions. Requiring
modifications of petitions due to the minor changes,
hi analytical procedures will not result in greater
protection of human health and the environment but
will result in additional expenditures by both
facilities and EPA. As previously discussed, the
petition modification process is costly with the
average petition .modification price of $206,300.
These facilities have already demonstrated that the
injected waste will remain safely confined within the
injection zone, beneath the confining zone, arid
384
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separated from the lowermost source of any
potentially usable ground water. Approved petitions,
have already addressed the potential for migration of
hazardous constituents from the injection zone. The
change proposed in the applicability of treatment
standards to waste streams already described in the
no migration petitions does not affect the technical
basis for the petition approval; therefore, it is
unnecessary to require petition modifications.
This type of regulatory scenario, refinements to the
LDRs that result in additional waste codes that are
applicable, to the injectate even though there has
been no change in the injectate, was anticipated, and
both CMA and EPA agreed that petition.
modifications would not be required. EPA should,
therefore, clarify in the Phase IV rule that the
prohibitions for newly-listed wastes will not result in
the need to modify approved no migration
exemptions for those facilities at which the waste
streams injected have not changed. Absent a
Change in the Waste Injected, Facilities with
Approved No Migration Exemptions Should, at a
Minimum, be Entitled ,to Add Waste Codes for
Newly-Identified or Characteristic Wastes as
Nonsubstantive Revisions. In some cases,
facilities with approved exemptions describing the
waste streams inject either newly-listed wastes or
characteristic wastes that are not decharacterized
prior to injection. These facilities have not changed
the waste streams injected; however, the Agency has
proposed to change the basis for the applicability of
waste codes. In such cases, EPA may prefer to
ensure that the approved exemption reflects all of the
waste codes that actually apply to. the waste at the
point of injection. This is merely a paperwork
change that does not raise technical issues that
warrant the need to modify, the petition and to review
the basis for granting the exemption. No migration
petitions include detailed descriptions of the
injectate including chemical analysis to identify ;
hazardous constituents. Although some petitions .
may not include detailed descriptions of the
individual streams that are aggregated to form the
385
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injectate, these petitions do include descriptions of
the pretreatment systems, identification of the
source of the various streams and, using the
definitions applicable at the time of petition .
preparation, identification of the applicable waste
codes for individual waste streams. The evaluation
of the potential for migration from the injection zone
is appropriately based upon the concentrations .
.. present in the injectate and not in the individual
streams that are aggregated prior to injection. The
injectate is typically a wastewater, and even if it is ;
considered a nonwastewater for LDR purposes it is
aqueous, and the determination of metals present in
the injectate is based on analysis of an aliquot from
the waste rather than analysis of the extract from a
leaching procedure. Therefore a change in the
extraction procedure used to determine the
applicability of waste codes to the individual
streams, will, at most, have a trivial impact on the
evaluation of the potential for the injectate migrating
from the injection zone. EPA should therefore
confirm that, absent a change in the wastes injected,
facilities with-approved petitions should be able to
add the waste codes by nonsubstantive revision.
CMA Supports Changes in Notification
Requirements that Reduce the Reporting Burden
for Facilities Disposing of Waste into Injection
Wells with Approved No Migration Exemptions.
EPA is proposing to modify existing regulatory ,
language to clarify the existing notification . '
requirements, and generally simplify, the
requirements for generators of hazardous waste.
These changes will replace the existing language in
40 C.F.R. §268.7. Specifically, for Class I injection
well operators, EPA is proposing to simplify the
notification requirements. Under the current
regulations (promulgated in the Phase II rule and not
yet published in the C.F.R.), notifications are
required to include the waste code and regulated
constituents for all restricted wastes. The Phase FV
proposal would eliminate the requirement that
regulated constituents be identified on the LDR
notification for wastes injected pursuant to no
386
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migration exemptions. This is appropriate since the
no migration petition includes a description of the
waste stream and the hazardous constituents in the -,
waste stream. The requirement to further analyze
and report information about the waste streams ,.
would not protect .the environment but would result
in added costs for analytical support and .
documentation. This change will save considerable
time and analytical costs without sacrificing
protection of human health and the environment and
is supported by the UIC Group. Further, the UIC
Group recommends that EPA finalize the proposed,
improvements to the existing LDRs program-
separately from the rest of the LDR Phase IV
proposal. EPA Should.Ensure Adequate Time for
Compliance Most of the facilities that currently
inject newly-identified wastes will attempt to
continue to inject these streams and will apply for
either a no migration exemption or a modification of
a no migration exemption. The no migration
exemption review process has taken an average of
three years to complete. Similarly, the installation of
on-site treatment, source reduction, and/or recycling
facilities may take several years to complete,
especially if it is necessary to obtain permits before
installation. Off-site management options may be
logistically infeasible or require the construction of
on-site facilities to make them feasible: The
construction of transfer facilities may require
permits resulting in operation delays of several years.
Therefore, EPA should provide adequate time to
achieve compliance with the Phase IV requirements.
Due to the uncertainty of the outcome of issues
described in preambles of the Phase III and Phase IV
proposals, such as the point of generation definition,
facilities remain confused as to the applicability of
these proposed prohibitions. Compliance options are
expensive (typically in the millions of dollars per
facility); even preparation of an exemption request
can cost between $250,000 and $1;5 million.
Committing large expenditures based upon proposed
rules which are subject to change before
promulgation results in unnecessary (and sometimes
387.
-------
significant) costs to companies. Therefore, even '
though all of the options described above have long
lead times, most companies will await the .
publication' of regulations to begin pursuing
compliance options. A more reasonable approach
to achieving compliance would be for EPA to allow
facilities which submit an exemption request within
a reasonable time frame (e.g. within 9.0 days after the
effective date of the LDRs) to continue to operate
until two years after a determination is made by EPA
whether to grant an exemption. This is permissible
within the LDR framework for characteristically
hazardous wastes, because although EPA is calling
these wastes newly-listed, EPA is actually making
technical corrections to clarify the applicability ;
based upon alternative analytical procedures and -
making technical corrections which will modify the
implementation of existing restrictions. The .
Most Recent Revision of the De Minimis
Wastewater Exemption Needs Further
Modification to Assure Reasonable Analytical Costs
for Compliance and Should be Applicable'to All
Class I Wells not Just to Those Injecting
Nonhazardous Wastes. The UIC Group
supports EPA efforts to define a de minimis volume
exemption. EPA should grant the exemption, but
modify it to reduce the analytical burden. The
proposed exemption requires facilities to identify
and quantify the level of underlying hazardous '
constituents (UHCs) in characteristic wastes streams.
Each characteristically hazardous waste stream
would need to be sampled to identify if the
underlying hazardous constituents are present at
levels less than ten times the treatment standards
found at §268.48. For each sample collected the
analytical costs would be approximately $1,500. As
an example, one member's facility has completed a
sampling round to evaluate the impact of the Phase
III and Phase IV proposals for characteristically
hazardous wastes at their site. This single round of
sampling, analytical, and evaluation of data collected
cost $46,000. Additional costs were incurred to
install sampling connection points into hard-piped
388
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RESPONSE
systems. EPA couid achieve the goal of only
allowing relatively dilute streams to be considered .
for the de minimis volume exemption by simply
requiring the waste stream at the point of generation
to contain at least 90 percent water by weight-instead
of specifying a hazardous constituent concentration.
Determining the percent water weight is much less
costly This requirement in conjunction with limiting
the combined volume to less than one percent of the
total flow at the wellhead on an annualized basis
achieves the goal of ensuring that the de minimis
volume provision applies only to relatively dilute
wastes that are relatively small in the aggregate.
This change in analytical criteria also assures that the
applicability of the provision can be determined
easily for' both compliance and enforcement
purposes. The de minimis provision as proposed in
Phase IV would apply only to nonhazardous
injection wells. This is contrary to what we believe
is EPA's intent which is to .provide relief for minor -
waste streams at both hazardous and nonhazardous
Class I injection well facilities. This is an
unnecessary restriction in applicability because Class
I wells that inject hazardous waste must obtain no
migration exemptions which include a demonstration
that.the technology is environmentally protective
whereas surface impoundments and Class I wells
injecting nonhazardous waste are not subject to this
onerous demonstration requirement.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, oh April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's,Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
389
-------
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in .proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ,. ' . " ;
, 390
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DCN PH4P034 .-
COMMENTERCMA UIC Task Force
RESPONDERHM :
SUBJECT EQUV ' ' ,
SUBJNUM 034 ,
COMMENT ' ' . ; /
Listed Wastes Should not be Subject to Treatment Standards Applicable to
Characteristic Wastes. , . , ' , . , -. -
EPA intends to retain the current rule stated in 40 C.F.R. §268,9(b): that the treatment
. standards for characteristic wastes do not apply if the treatment standard for the listed waste
addresses the .hazardous constituent at issue. The Phase HI proposal included a modification to
40 C.F.R. §268.9(b) which would have subjected all listed wastes that are characteristically
hazardous to treatment standards applicable to characteristic waste. The Phase IV proposal
correctly utilizes limited resources, assuring that listed wastes are not subject to the double
jeopardy of being evaluated for compliance with both the UTS treatment requirements for the
listed waste's constituents and the underlying hazardous constituents. Further, this minimizes
the "'.. - ''"'-.
- need to break into hard-piped systems in order to .sample characteristically hazardous wastes
simply to identify underlying hazardous constituents for those pipe systems that transport listed
wastes. , " . ' . " ' , ,: . '-'">
Residues from Pretreatment of Injected Wastes are Newly-Identified Wastes and are
. . Therefore Only Subject to Treatment Requirements for Characteristic Wastes if
They Themselves Exhibit Hazardous Characteristics. .
..- ' ' " / '
In the Third Third rule, EPA established the principle that the generation of a new.treatability
group is considered a new point of generation and thus a new point for determining whether a
waste is prohibited. In the Phase IV proposal EPA uses this principle to evaluate wastewater
treatment sludges generated in Subtitle D surface impoundments. Under this principle
wastewater .-'''.'
treatment sludges not exhibiting a characteristic are not prohibited wastes, even though the
sludges may be derived from characteristically hazardous waste streams. Instead the
newly-generated waste is evaluated to determine if it is subject to the LDR standards.
The Phase IV proposal does not, however, directly address the LDR status of residual solids
from Class I injection well systems. The UIC Group has been advised in discussions with the
EPA that residual solids from Class I injection well systems will also be considered to be
newly-generated wastes under the-"change in treatability group principle." Under this .
' interpretation, such solids will be subject to treatment requirements for characteristic wastes
only if they themselves exhibit the hazardous characteristic. This verbal understanding is
consistent with the approach taken by EPA in the preamble of the Phase IV proposed rules. The
UIC Group urges EPA to clarify that the residues from Class I pretreatment systems are
-, / .. t '
'" ''' 391 '.---'.'' .' '' ' -' '
-------
newlyTjgenerated wastes and are not subject to LDR requirements unless they are themselves
hazardous wastes.
v * ' ' , . : . .
Nonwastewater Residuals from Treatment of Mixtures of Aggregated Waste
Streams, Irrespective'of the Individual Stream's Treatability Group, Should be
Considered as Newly-Generated Waste. " '
CMA member companies continue to be concerned about sludges that are generated1 from
waste streams that are considered nonwastewaters. Due to either the total organic carbon or total
suspended solids content many wastewater streams are classified as nonwastewaters for LDR
purposes. Because a residual solid is a nonwastewater for LDR purposes, it could be argued that
no change in tfeatability. group occurs and that the residual solids which include sludges, filters,
' filter cakes, etc. are subject to the same treatment standards as the liquid streams. The UIC
Group believes that these streams are also newly-generated and should be evaluated based upon
the concentration of constituents in the waste rather than relying on the characteristics of the
individual streams that were aggregated and then treated to form the sludges. ,
The aggregation of streams prior to injection allows for both chemical and physical changes to
occur in the combined waste stream. Catalyst fines may be present which will allow for further
reaction of the unreacted raw materials and polymerization of monomers. Additionally, salts
may . ' ".' ' .
form as a result of mixing streams of various pH and chemical matrices. The settled sludge will
contain a different matrix than does the wastewater influent. ,
Residues are also different from the wastewater streams because they are collected on various
. media which become part of the residue waste matrix. These media can include materials such
as . , . . .-.'.- ' -
diatomaceous earth and wound fiber cartridges. The constituents adhering to the filter media will
be more similar in nature to the sludge residue than to the wastewater influent. These residues
are unlikely to be pumpabie materials; whereas, the wastewater influent is pumpable. The ,
organic ', ' - .
constituents in the residues are more likely to be longer-chained organics and are less likely to be
volatile. The residues are also more likely to contain higher concentrations of metals and salts
than is the wastewater.
Because the residues generated in Class I pretreatment systems.are fundamentally different < ' '
than thevwastewaters (which may be considered as nonwastewaters for LDR purposes), EPA
should clarify that these waste streams are newly-generated and are only subject to LDR
provisions applicable to characteristic wastes if the residues themselves are characteristically
hazardous. EPA should not create another mechanism that requires waste codes to be applicable
to wastes derived from hazardous wastes, thereby bringing in large volumes of nonhazardous
waste into the perverse universe of regulation as hazardous wastes. .
RESPONSE ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
392
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underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems - .
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or.toxicity when generated but are no longer characteristic). On March 16,1996, the.
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
today's Phase IV final rule will not promulgate provisions for managing leaks,.sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatmenrstandards for TC metal wastes in today's rule do riot
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for .underground injection wells, the Safe
Drinking Water Act ..
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments, the findings of this study, begun by the Agency in April, 1996, mfy
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
393
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DCN . PH4P034 ... . : ;
COMMENTER CMA UIC Task Force - ..
RESPONDER PMC
SUBJECT EQUV -
SUBJNUM 034 . ', -
COMMENT . ' ' ' ' !'
Clarify that LDRs do not apply to decharacterized wastes injected
at facilities with approved no migration exemptions. . /
RESPONSE,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous,constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study fbegun by the Agency in April, 1996, may ..
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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DGN . PH4P034 ' " ' . . ..'''.-
COMMENTERCMA
RESPONDERSS ' .
SUBJECT EQUV ' . . .
.SUBJNUM 034..' --.'-,''
COMMENT ,.-.'. - ."' " : "
EPA Should Appropriately Limit the Circumstances Under Which Treatment to ,
Address Underlying Hazardous Constituents in Characteristic Wastes is Required. . ,
The UIC Group has already stated its concern that requiring segregation and treatment of
characteristic streams to meet UTS levels is not only unnecessary but actually may increase the ..
risk to human health and the environment. . _
»' . ' ' , .
The UIC Group recommended in the Phase III comments that EPA identify threat levels based
upon health-based levels modified by an appropriate dilution/attenuation factor reflecting a
reasonable mismanagement scenario. EPA recognizes in. the Phase IV proposal that constituents
at UTS levels may not present risks that warrant regulatory concern. Specifically EPA states that
"MCLs are a reasonable benchmark of risk posed to human health from a drinking water source,"
and proposes not to require controls on surface impoundment leakage unless levels of hazardous
constituents exceed MCLs by a factor .of 10 (a reasonable dilution/attenuation, factor according
to ' . - - . ;. ' '
EPA). The UIC Group supports EPA's intent to require treatment only if it is necessary to
minimize an actual threat to human health or the environment. In the context of injected wastes,
if the commingled wastes already are at a hazardous constituent level: which will minimize
threats, ,'..', ,
treatment to further reduce the mass of constituents will neither reduce the volume'of waste
injected nor produce any meaningful reduction in toxicity. Therefore treatment to remove
underlying hazardous constituents prior to injection is unnecessary to protect human health and
the environment. ,
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR "
395
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43655-43677)). Furthermore,' the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by .the Agency in April, 1996, may
result in proposed regulations for these units^ if risks are in fact found that would warrant'such '
regulation. ,
DCN PH4P035 ' , . ' - ^
COMMENTER Utility Solid Waste Activities Group
RESPONDER HM -
SUBJECT EQUV . . . '.
COMMENT 3. Trie CWM Opinion Does Not Require EPA To Impose Regulatory .
Standards on Sludges USWAG is especially troubled by the Option
2 proposal for subjecting sludge to the LDRs. The CWM opinion
does not suggest, let alone require, that EPA alter its
"treatability group principle" and impose regulatory standards ,
. on the sludges generated during treatment of wastes in CWA
systems. The "treatability group principle" provides that a ,
waste that has changed its fonri during treatment, e.g.1, from a '.'!
wastewater to a nonwastewater, is sufficiently different in .
character and characteristics from the original waste that its
, potential threat to the environment should be assessed anew, and
, that such newly generated forms of the waste should only be
subject to hazardous waste regulation if they themselves exhibit -
a characteristic. See 55 Fed. Reg. 22520,22661-62 (June 1,
1990). This principle was not challenged in the CWM
litigation and thus was not addressed in that decision. There . r '
is no reason for EPA to assume that the Court reached out to
decide an issue that was not before it and to infer a ; ;
requirement to impose LDR regulations on sludges generated in , .-
CWA systems managing decharacterized wastes. EPA itself
recognizes this point and also questions its legal basis for v
abandoning this concept in the Phase IV rule. 60 Fed. Reg. at '
43673. More fundamentally, the change in treatability group .
principle reflects the reality of many treatment systems as well
as the fact that the chemistry, and thus the threat posed to the
environment, of constituents bound up in a solid are
substantially different from those same constituents present in . '
, '.' a wastewater and therefore must be analyzed separately. EPA has
presented no information in the current proposal to undermine
... . 396 '
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Jhat logical conclusion. Moreover, if EPA were to abandon its
change in treatability group policy and thereby, in effect, . .
. impose a "derived from rule" on characteristic wastes, it would - - .
create many of the same problems that have resulted from the
derived from rule for listed wastes. The Agency is well aware
. that the derived from rule, has resulted in many low hazard
wastes being subject to Subtitle C regulation, and EPA is now .
going through great pains to correct this major flaw in the '
Subtitle C system (via the "Hazardous Waste Identification Rule"
,v process). It would be nonsensical for the Agency to . :
unnecessarily import one of the least defensible components of
the Subtitle C program into the LDR program as it relates to : ' '
characteristic wastes. The current system as applied to
characteristic wastes is rational and workable, and the Court's . ', -
decision creates no mandate to abandon and replace it with a . ,
. more burdensome regulatory program. Therefore, USWAG urges the
Agency to retain the change in treatability group principle and . '
not to automatically apply LDR standards to sludges generated
during me treatment of decharacterized wastes in CWA surface, " '
. impoundments. . . ' , .
RESPONSE' ' , . .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or.toxicity when generated but are no longer characteristic), On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to ,
" determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ',''
397
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398
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DCN PH4P035 . . . - . <
COMMENTER Utility Solid Waste Activities Grp
RESPONDER SS .-.-
SUBJECT EQUV
COMMENT IX. EPA SHOULD CLARIFY THAT DILUTION IS
PERMISSIBLE TO REMOVE A CHARACTERISTIC PRIOR TO
FURTHER TREATMENT. . USWAG believes .
that the focus of the Phase IV proposal on surface impoundment . '
standards and its discussion of potential management options
. ' necessitates clarification of EPA's position on.dilution. In
. particular, USWAG urges EPA to clarify in the final rule that it , .
is lawful to use dilution to render a characteristic waste that
is subject to an LDR treatment standard nonhazardous, provided . '
that additional treatment other than dilution is. used to treat
- the "underlying hazardous constituents" in the decharacterized
waste prior to land disposal. Neither RCRA nor the CWM decision
prohibits the dilution of a characteristic hazardous waste for
purposes of removing the hazardous characteristic so that any
additional treatment for the underlying hazardous constituents
in the decharacterized waste can1 take place in facilities that . i
are not subject to the RCRA hazardous waste permitting
requirements. In fact, USWAG notes that in the Phase III
proposal, EPA clearly contemplated wastes being decharacterized . ' '
through aggregation prior to their management in CWA surface . -
impoundments for treatment in order to meet.LDR standards. 60
' Fed. Reg. at 11702,11710-12. Despite EPA's recognition of
.this principle, USWAG has found that there is substantial
confusion among state regulators and others regarding whether
any dilution of prohibited wastes is allowed. Therefore, USWAG ... .
urges EPA to clarify in the preamble to the final rule, or in
some other appropriate manner, that characteristic wastes can be . . .
diluted to remove their hazardous characteristics and that such
decharacterized wastes can be treated in non-Subtitle C ' . .
facilities to meet applicable LDR treatment standards.
RESPONSE '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
399
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wastes in question are no longer prohibited from land disposal once rendered iionhazardous. As
a result, on April 8; 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final nile will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,' 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. _ '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ' .' .
s-
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of
organics) remain prohibited unless treated pursuant by the promulgated method.
. 400
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DCN . PH4P035 .
CQMMENTER 'Utility Solid Waste,Activities Grp " -
RESPONDER SM
SUBJECT ~EQUV * '
COMMENT VI. EPA SHOULD REJECT THE ENVIRONMENTAL TECHNOLOGY
COUNCIL'S PROPOSAL TO BAN NON-AMENABLE WASTES FROM .
LAND.BASED BIOLOGICAL TREATMENT SYSTEMS. ,
EPA proposes to reject a request that was : .
made by the Environmental Technology Council ("ETC") to prohibit
the management of wastes in land based biological treatment
' systems if the wastes are not amenable to biological treatment. .
60 Fed. Reg. at 43677. USWAG fully agrees with EPA that such a '
prohibition is unnecessary, and that the concerns that the
proposal purports to address are most appropriately addressed by
the end-of-pipe controls discussed in this rule and in the Phase
'III proposal. The imposition of additional controls beyond the . '
end-of-pipe requirements not only would be superfluous, but it
also would create significant disruptions in existing-treatment'
operations. As noted by EPA, "the provisions in Phase III and : .
Phase IV are designed to protect human health and the
environment from hazardous constituents in surface impoundments,
.therefore, there is no need to regulate nonamenable wastes." \ -.
Id. USWAG supports this conclusion. USWAG further agrees with
EPA that such a ban would impose significant technical
impediments on the regulated community in determining
amenability to biological treatment. In particular, EPA -
acknowledges that the ability of the regulated community to
assess the amenability to treatment of a particular wastestream ( .
or a constituent is "extremely difficult" and is accompanied by .
much "uncertainty." Moreover, there has been no indication that
excessive migration of "nonamenable" wastes is occurring, or ,--'_'.
that such wastes in any way impede the functioning of the . '
biological treatment systems: The advantages of such a
prohibition are minimal, and EPA correctly has proposed its
rejection. , :
RESPONSE ', ;' ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air Emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16; 1996, the.
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
401
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wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996; EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply-to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act "or, for underground injection wells, the Safe
, Drinking Water Act. .
' . ! ' ' . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, .1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.' . , -,.'
402
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DCN ' PH4P035 - ' ,' .
COMMENTER Utility. Solid Waste Activities Grp
RESPONDER SS ..
SUBJECT EQUV _, . ;
COMMENT C. USWAG Requests that EPA Clarify that the LDR Requirements
are Only Applicable to Constituents Contained in a Hazardous .
, Waste at the Point of Generation. USWAG believes it is : "
. imperative that EPA reiterate in the final Phase IV rule that
the only constituents of concern that must be addressed under ;
.. the LDR program (and therefore must be treated prior to ,
discharge) are constituents that are present in wastes that are ' .
hazardous at the point of generation. Because the CWA " ' .
impoundments that receive decharacterized wastes also receive
numerous other aqueous wastestreams that are not subject to the
RCRA LDR program, it is'important that EPA clarify-that ,
constituents contained in wastes,that are non-hazardous at the
' point of generation and that are "discharged to the impoundment .
are not subject to LDR requirements and do not have to be
monitored at the.point of discharge for compliance with the
LDRs. Moreover, EPA should provide a mechanism in the final rule
whereby parties can submit data to demonstrate that certain .
constituents did not come from the waste .that is subject to the , i .
LDRs. . -
RESPONSE
In the August 22,1995 Phase IV.proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes'are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, of toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,. 1996, may
; '. ; ' -N " , .
, -. -, '' ' . ' 403' ; " ;
-------
result in proposed regulations.for these, units,, if risks are in fact found that would warrant such
regulation. "
404
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DON . PH4P035 . .
COMMENTER Utility Solid Waste Activities Grp
RESPONDER SS - , , ..V
SUBJECT EQUV. -
COMMENT II. .USWAG SUPPORTS END-OF-PIPE COMPLIANCE FOR TC-METAL
WASTES. '"'., ' ' . ' . /
' - , A. End-of-the-Pipe Compliance Fully Satisfies the Requirements
of the CWM Opinion. US WAG emphasized in its comments on the
Phase III LDR proposal that it fully supported the requirement
- . that compliance with the LDRs for decharacterized waste in CWA
systems be determined at the same point that NPDES and
pretreatment limits must.be met. See US WAG Comments on Land
Disposal Restrictions.- Phase III, May 1, 1995 (Docket No.
F-95-PH3P-FFFF). US WAG reiterates its support for this standard
and the Agency's proposed application of it to the treatment
standard for TC-metal wastes: The "end-of-the-pipe" treatment '
standard is fully consistent with the Court of Appeals decision
in CWM. As acknowledged by EPA in the current proposal, "Option
1 relies on the Phase III rule to satisfy the equivalence
standard enunciated by the D.C: Circuit.... the court's
opinion does not explicitly require more." 60 Fed. Reg. at
43659. The Court in CWM determined that it was permissible, as a
proper accommodation between the CWA and RCRA, to allow wastes
.that had not been treated to meet LDR standards to be placed in
CWA surface impoundments as long as the waste receives the same
degree of treatment for the underlying hazardous constituents as
would be achieved in any other RCRA treatment facility. 976
F,2d at 20. Under this standard, wastes that have been
decharacterized can be placed in CWA impoundments for treatment,
provided that the LDR Universal Treatment Standards ("UTS") are
met at the point of discharge from the impoundment. This
strategy is entirely consistent with the CWM opinion because the
decharacterized wastewaters are receiving the same degree of
treatment at the point of discharge that would otherwise be
obtained in a RCRA permitted treatment facility. As EPA has ,
already previously concluded, "there are adequate constraints hi
the CWA implementing rules to prevent these end-of-pipe
standards from being achieved by means of dilution." 60 Fed.
Reg. at 11711. Therefore, an end-of-the-pipe equivalence ,
standard will ensure that the requisite degree of treatment of
underlying hazardous constituents is achieved at the point of
. discharge without inappropriate dilution. The CWA impoundments
at issue in the Phase IV proposal have been used for years to N
405
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manage aqueous decharacterized wastes in an environmentally ,
sound and economically efficient manner. Indeed, the Agency has
recognized that these systems pose little environmental risk
that is not already being addressed under existing regulatory
controls. Id. at 11704 ("the risks addressed by this rule, '
particularly UIC wells, are very small relative to the risks
presented by other environmental conditions or situations").
Thus, there is nothing to indicate that these systems are not
capable of adequately treating these wastes or that they are
.posing any threat to human health brthe environment warranting
the type of intrusive and-cost prohibitive controls contemplated
in Options 2 or 3. B. EPA Should Defer to the CWA Where the
Constituent of Concern in the TC-Metal Waste is'Addressed by an
NPDES Permit or Pretreatment Requirement. USWAG also believes
that the Agency should recognize that compliance with a CWA
standard that addresses hazardous constituents of concern in
TC-metal wastes constitutes compliance with the RCRA LDRs. EPA
acknowledged this principle in its Phase III proposal with
regard to TC-orgahic wastes (Id. at 11711 -12), and the same
rationale applies with equal force here. Where the RCRA
constituent of concern is fully regulated under the Clean Water
Act, there is simply no reason to impose an additional RCRA
standard on these same constituents at the point of discharge. .
Doing so would merely be redundant regulation for its own sake,
and would be directly contrary .to Congress' mandate in section"
1006(b) of RCRA (42 U.S.C. ° 6905(b)) that EPA integrate
provisions of RCRA and the CWA when implementing RCRA and avoid
duplication, to the maximum extent possible, with CWA .
requirements. Therefore, deference to Clean Water Act regulation
is fully consistent with RCRA, and provides ample protection for
human health and the environment while minimizing disruption of
existing treatment systems. In addition, the treatment
technologies and standards developed under the CWA are more
likely to be better tailored to the wastestream because the CWA
is specifically geared to regulating aqueous discharges and CWA.
permit writers have greater experience in reviewing and
permitting systems for the management of industrial aqueous
wastes. While USWAG endorses the Agency's approach of deferring ,
to applicable CWA controls where appropriate, USWAG believes the
Agency also should defer to the judgments made under the CWA
that certain constituents do not require regulation at the point
of discharge. For example, if an NPDES permit writer has
determined that there, is no need to impose specific limitations
406
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, in a facility's permit for certain constituents because, that .
constituent will not be present in the discharge at a level that ' * '
poses a threat to human health and the environments RCRA should '.'
defer to that judgment and not require monitoring and compliance
with the LDR standards for these.constituents. The permit
writer's judgment represents the application of the best
technology or the necessity to achieve water quality standards.
Where a permit writer has specifically determined that a
particular constituent (or constituents) does not need to be
addressed, that determination represents a finding that either
' the technology has adequately treated that constituent or the . ,, . '
-constituent does not pose a threat to environment. In these. .
circumstances, imposing RGRA treatment standards on the -
constituent simply would be redundant regulation for its own '
sake. '- -.-.' -
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that ,
underlying hazardous constituents in decharacterized; wastes were'not released to the "
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FIR. 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air -
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
. v . . ...
However, .the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments; The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
407
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.DCN . PH4P035 " , , . - .
COMMENTER Utility Solid Waste Activities Grp ' .- ,
RESPONDER SS .
SUBJECT EQUV » ,
COMMENT III. PROPOSED MANAGEMENT OPTIONS FOR DECHARACTERIZED
WASTES. .
.USWAG is pleased to respond to the Agency's request for comment
on the Agency's evaluation of options for regulating potential
releases of hazardous constituents from CWA surface .
impoundments. 60 Fed. Reg. at 43659. EPA has proposed three .
options for imposing controls on air emissions, leaks, and
sludges associated with surface impoundments managing
decharacterized wastes. The first option would not impose any .
controls beyond the end-of-pipe limits discussed above. Option
- . .2 would impose separate'controls on air emissions, leaks and .
sludges from surface impoundments, and Option 3 actually would ,
. prohibit,decharacterized wastewaters from being placed in a
surface impoundment until they had been treated to meet
applicable treatment standards. Id. As discussed in detail
below, the CWM decision does not mandate the imposition of any
additional controls on surface impoundments beyond the
end-of-the- pipe controls described in the Agency's Phase III,,
proposal,!and therefore, the only appropriate management
strategy is that proposed in Option 1, A. USWAG Supports EPA's.
Adoption of Proposed Option 1 USWAG fully supports EPA's
proposed Option 1 and its emphasis on end-of-the-pipe treatment
requirements as being most consistent with the mandate of the
, CWM decision. There is nothing in the opinion of the Court of
Appeals in the CWM decision that requires any of the additional
controls on sludges, surface impoundment integrity, or air
emissions that EPA is contemplating in the proposal. In
requiring that the treatment of characteristic hazardous wastes
' in a CWA system be "equivalent" to that provided by a RCRA
system, the CWM Court was simply making clear that such wastes,
when managed in a CWA system, must be treated and cannot be
allowed to meet LDR requirements simply through aggregation with
other waste streams. The Court was not addressing the management
standards applicable to the treatment facility managing a
decharacterized waste., As a result, the Court's mandate that -
the influent wastes receive the equivalent level of treatment
that they would receive in a RCRA system does not mean that the
CWA facility itself must be subject to trie same standards that
would apply to a RCRA facility. In interpreting the scope. ,
408
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" of the,Court's ruling, it is imperative that the Agency keep in -,''
mind the issue the CWM Court was actually deciding. EPA's Third
. - Third LDR rule provided that characteristic, wastes managed in
CWA systems could be diluted as long as the treatment standards
.were met at the point of discharge. See 976'F2d at 19. It was ' , :
this amendment to the dilution prohibition that was .challenged
by the petitioner. And.it was this narrow issue that the Court
was addressing when it spoke about the level of treatment .
required. Id. An examination of the Court's opinion reveals
that the Court's focus was solely on the waste stream being
managed in the CWA system and not on any aspects of the system ,
itself. Thus, the Court stated that treatment of wastes in a '
CWA system must meet RCRA requirements "prior to discharge" to
surface water or a POTW. Id. at 20. Even more explicitly, the
Court stated that "what leaves a CWA treatment facility can be
no more .toxic than if the waste streams were individually .
1 - treated pursuant to the RCRA treatment standards." Id. -These
statements make clear that the Court.was narrowly focused on the .'
specific issue of ensuring that hazardous wastes managed in CWA'
systems receive adequate treatment prior to discharge and are
not merely diluted by aggregation with other waste streams.
Given this narrow scope of the Court's holding, the Court's
opinion does not require EPA to impose management standards for - ,
leaks or air emissions on surface impoundments managing
decharacterized hazardous wastes. . ' ;
RESPONSE ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are ho longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
4365S.-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
. . 409
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determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,. 1996, may
result in proposed regulations for these units, if risks.are in fact found that would warrant such
regulation. .. ;
410
-------
DCN PH4P035 . . ^ '
COMMENTER Utility Solid Waste Activities Grp
RESPONDER-SS : - v
SUBJECT EQUV ' ' .
COMMENT B. The Proposed Controls in Option 2 are Not Mandated by the
..' CWM,Opinion. 1. The CWM Opinion Does not Require the
Imposition of Additional Controls to Regulate Leaks From Surface
Impoundments. There is nothing in the CWM opinion that compels .
EPA.to address the issue'of leaks from CWA surface impoundments
, used to manage decharacterized hazardous waste. As discussed
above, the CWM opinion addressed only the issue of whether
dilution in CWA systems was by itself an.acceptable form of
" treatment for hazardous waste and held that it was.not
Notwithstanding this conclusion, however, the CWM Court also
held that decharacterized wastes could continue to be managed in
CWA systems as part of the required accommodation between the (
CWA and RCRA. 976 F.2d at 20. The Court recognized that
decharacterized hazardous wastes that had not yet met LDR
' treatment standards could be placed into units that are not
Subtitle C units and for which Subtitle C management standards
are not required. Therefore, the decision simply cannot be
deemed to require the imposition of Subtitle C-like groundwater
monitoring requirements on CWA systems. Such a result would
effectively turn these Subtitle D units into RCRA Subtitle
C-like units, despite the fact that the CWM Court explicitly
allowed the continued management of these wastes in such units
. as part of the statutorily required accommodation between the CWA
and RCRA. In addition, imposition of Subtitle C regulatory
requirements in this context makes little regulatory sense. In
many CWA systems, the decharacterized wastes managed in the
system are a relatively small percentage of the total volume v
wastes being treated in the system. Therefore, it is unlikely
that the decharacterized waste component of the twaste stream
will significantly alter the overall characteristics of the
, waste being managed in the unit or will significantly alter the
nature of any potential leakage from the unit. Moreover, the
CWA systems at issue in this rulemaking are subject to
regulation under both the Clean Water Act and Subtitle D of
RCRA. If there are any environmental problems with such units ,
the Agency has ample authority under those statutory regimes to
address such issues. However, while US WAG strongly disagrees
that groundwater monitoring standards are appropriate to impose
on CWA surface impoundments that manage decharacterized waste,
411
-------
.USWAG agrees with EPA, that if such requirements are imposed,
the Agency should defer to existing state groundwater monitoring
programs to the extent that such requirements are available.
Id. at 43669. USWAG notes that, based on available information,
there are 25 states that manage 83% of the wastewaters that are
placed in surface impoundments. Of those 25.states, all-of them
' require monitoring to protect surface waters, 19 have liner
requirements, and 19 .require groundwater monitoring. This data
demonstrate that there is widespread regulation for releases
from surface impoundments at the state level, and that deference
to this existing framework is necessary to avoid the imposition
of redundant and potentially contradictory federal and state ^
requirements on the regulated community. 2. Nothing in the
CWTvi Opinion Mandates the Imposition of Air Emission Controls on
CWA Surface Impoundments. As discussed above, the CWM opinion
does not require EPA to impose additional controls on CWA .
surface impoundments. This conclusion is particularly, true in
the case of air emissions. The CWM opinion does not address air
emissions from wastes that are being managed in surface
impoundments, and there is nothing to indicate that the Court
was concerned with this issue. Moreover,,the statutory provision
that the Court was interpreting, i.e., the land disposal
restrictions, addresses only the risks arising from the
permanent disposal of untreated wastes onto the land. Nothing
in the LDRs addresses the risks that may arise from
volatilization of hazardous constituents during treatment
Therefore, the Court's opinion cannot be construed to require
the Agency to impose air emission standards on surface
impoundments that are treating decharacterized wastes. Indeed,
such a construction of the statute or the CWM decision is beyond ,
any reasonable or defensible interpretation. .Accordingly, the
regulation of any potential air emissions should appropriately
remain within the purview of the Clean Air Act ("C AA"). As the
Agency is well aware, imposing such air emission standards would
impose astronomical costs on operators of surface impoundments /
who could be required either to install emission control
equipment or to construct alternative tank-based systems to
manage these wastes. The CWM opinion does not dictate such an
onerous result, and EPA has not developed a record to
demonstrate that the risk posed by such emissions from the
decharacterized waste would justify the inordinate expenditures
that would be required. Further, if air emissions from CWA
systems do pose a risk, EPA may readily evaluate that risk and ;
41<2
-------
.impose whatever controls are necessary under the toxic air
pollutants program contained in section 112 of the GAA. 42 ', '
U.S.C. ° 7412. That section requires EPA to identify major .
sources of hazardous air pollutants ("HAPs") and to develop ;
specific technology-based control standards for those sources.
' For example, final NESHAPs addressing surface impoundment .
emissions have been promulgated for benzene wastes (40 C.F.R.
Part 6l,SubpartFF) and for hazardous organics (40 C.F.R. Part '
63, Subparts F-I), and NESHAPshave been proposed for synthetic ,
organic chemical manufacturing (40 C.F.R. Part 60, Subpart YYY)
and off-site waste operations (40 C.F.R. Part 60, Subpart DD). . ^ . . .
Moreover, surface impoundments, like all waste management ; -
.-operations, are subject to all other CAA requirements. See
Ogden Projects, Inc. v.
-------
s Drinking Water Act. , ' --
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
, determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the.Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ... ^ , , ,
414
-------
' DCN . PH4P035 .'.'.'
COMMENTER Utility Solid Waste Activities Grp
RESPONDER SS - '."'
SUBJECT EQUV ' . ' ,
COMMENT C. Proposed Option 3 Is Both Unnecessary And .Overly Burdensome.
Proposed Option 3 is entirely unjustified and is in no way "
contemplated by the CWA decision. Such a regulation would be ...
enormously disruptive of existing waste management systems. As .
the Agency is well aware, CWA systems handle large volumes of
waste, on the order of hundreds of thousands to millions of
gallons, and the retrofitting of such systems, or the
construction of alternative facilities, would require an . .
enormous capitaToutlay. It would be rational for the Agency to
impose such controls only if surface impoundments created a ,
threat to the environment sufficiently severe to justify the
- . enormous cost associated with retrofitting or replacing them.
However, there is simply no justification to impose those
requirements on all surface impoundments managing ' .
decharacterized wastes. The Agency has developed no record to ( -
demonstrate that these units pose the sort of environmental risk
that justifies the imposition of this sort of expenditure, and ' '
US WAG does not believe that such a risk actually exists.
Therefore, because neither the C WM decision nor the rulemaking
record support such action, USWAG urges the Agency not to adopt
Option 3. USWAG is encouraged by the Agency's recognition that.
Option 3 would destroy the "accommodation between the CWA and
RCRA" upheld,by the Court in CWM, and that, as a result, EPA may
. not even have the authority tto institute such a requirement.. 60
Fed. Reg. at 43677. Moreover^ as EPA has acknowledged,
"impoundment- based waste water treatment systems can be
effective means of treating decharacterized waste waters, and can
do so without undermining core values of RCRA and the LDR
program." Id. Based upon the "potential disruption to needed
wastewater treatment, high costs to affected industries, and ""
, lack of targeted risk reduction" EPA is not recommending the
adoption of Option 3. Id. at 43659. USWAG is in full agreement ,
with this assessment, and reiterates that the negativev
ramifications, heavy costs and negligible benefits associated
. with this option warrant its rejection. :
RESPONSE.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
''.- environment via leaks,.sludges, and air emissions from surface impoundments in systems
-415
-------
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,,.
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered norihazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677))^ Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe .
. Drinking Water Act. - .
1 . i . - ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may.
result in proposed regulations for these units, if risks are in fact found that would warrant such
- regulation. . . \
416
-------
DCN PH4P036 - ,
COMMENTER American Iron & Steel Ins
RESPONDER SS ' , '
SUBJECT EQUV
SUBJNUM 036 - ' -
COMMENT \ .;.."'
The most fundamental jurisdictional principle underlying Subtitle , ,
C of RCRA is that EPA's authority under that portion of the statute'
^ is limited to me regulation of "hazardous wastes." See, e.g.,
American Mining Congress v. EPA, 824 F.2d 1177, 1179 (D.C.Cir.
1987) ("EPA's authority [under Subtitle C] extends only to the
regulation of hazardous waste.'"). Of course, one important
exception to this principle has been recognized by the courts.
See American Iron and Steel Institute v. EPA, 886 F.2d 390 (D.C.
Cir. 1989) (noting that the corrective action provision of RCRA
"sweeps far more broadly than the rest of Subtitle C, with
its focus on hazardous waste."), cert, denied, 110 S. Ct. 3237 ' .
(1990). However, given the central role that the principle plays
in the Subtitle C regulatory scheme, it should not be
overridden without explicit authority. . .
In the present case, there is nothing in the statute that'
mentions, much less authorizes EPA to regulate leaks,
volatilization, or sludges from non-hazardous waste surface ;
impoundments managing formerly characteristic wastes. Moreover, as
EPA acknowledges in the preamble to the Phase IV proposal, the
decision of the U.S. Court of Appeals for the District of Columbia
Circuit("D.C. Circuit") in Chemical Waste Management, Inc. v. EPA,
I 976 F.2d 2 (D.C. Cir. 1992) ("Chem Waste II") does not explicitly
mention or authorize controls for such leaks, volatilization, or
sludges. See 60 Fed. Reg. at 43,656. In the absence of any clear
authority to regulate releases from non-hazardous waste
impoundments, the general jurisdictional limits of Subtitle C must
be respected. See Louisiana Public Service Commission v. F.C.C., ,
476 U.S. 355, 374 (1986)(holding that "an agency, literally has no
power to act... unless and until Congress confers power upon .
it."); Walter v. Luther, 830 F.2d 1208,1211 (2nd Cir. 1987)
(holding that statutes granting power to administrative agencies
are strictly construed to confer only those powers that
are expressly granted or necessarily, implied). Accordingly, EPA
should refrain from imposing RCRA Subtitle C controls on '
non-hazardous waste surface impoundments managing ~
formerly characteristic wastes. . '
417
-------
RESPONSE ,. .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring .that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions,from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiyity,
reactivity, or toxicity when generated but arc no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ;
' \ ' "
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . ,
" - ' " f
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-. <
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of >
organics) remain prohibited unless treated pursuant by the promulgated method.
418
-------
'DON , PH4P036,
COMMENTER American Iron & Steel Ins ' ' . .
RESPONDER. SS . > .
SUBJECT EQUV -.-.. '...',-
SUBJNUM .036 . , .......
COMMENT ' . . . ":'.'"
Even if EPA had the authority to, impose regulatory controls on
leaks, volatilization, and sludges'from non-hazardous waste
impouhdments managing formerly characteristic wastes, there can be .
no .doubt that the Agency is not required to establish such
controls. As noted above, neither the statute nor the Chem Waste
II decision explicitly mentions leaks, volatilization, or sludges ,
from C WA surface impoundments. Although the Court decision in
. some places suggests vaguely that wastes must be treated to
minimize risks "before exiting ... CWA treatment facilities," 976
F2d at 22, the Court clearly was focused on the ultimate
. end-of-pipe discharge of wastewaters from the treatment facilities.
For example, in summarizing its holding, the Court stated that .
"treatment of solid wastes in a CWA surface impoundment must meet
RCRA requirements prior to ultimate discharge into waters of the
United States or publicly owned treatment works." 976F.2dat20.
Similarly, the Court stated that" [t]he dilution of wastes in Clean
Water Act facilities is acceptable so long as the toxicity of the
waste discharged from the' facility is minimized or eliminated
consistent with RCRA." Id. at 7.
In short, the Court required only that the ultimate end-of-pipe
. discharge from a non-hazardous waste surface impoundment receiving
- . formerly characteristic wastes meet the"minimize threat", standard
of the RCRA LDR program. EPA itself has acknowledged that
., "the courfs opinion does not explicitly require more." 60 Fed.
Reg. 43,659. In light of the limited scope of the Court decision, .
the Agency should not make more work for itself by developing
and implementing new regulations to address leaks, volatilization,
and sludges. Doing so would be particularly inappropriate, in this
age of limited resources, because the Agency itself
has characterized such regulations as "a relatively low priority"
that primarily would address "facilities [that] are believed to
pose low risks." See Letter from Robert W. Hickmott,
Associate Administrator, EPA, to Congressman Ron Wyden (November 3,
1995). Accordingly, EPA should not adopt any leak, volatilization,.
or sludge controls as part of the Phase IV rule.
RESPONSE
- ' 419
-------
In the August 22,1995 Phase.IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized '
wastes are wastes which initially exhibited a hazardous characteristic of ignitability,,con-osivity, t
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludgesj and air
emissions from surface impoundments (EPA proposed options on August 22,. 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not ,
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. , ' - ,
I,
' ' , ' '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are* in fact found that would warrant such
regulation. .' . ,
. ' ' *' - ' ' i . '
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of .
organics) remain prohibited unless treated pursuant by the promulgated method.
420
-------
'DCN .. PH4P036; ' . ...
COMMENTER American Iron & Steel Ins
. RESPONDER SS , ,
SUBJECT . EQUV ..' . : : -
SUBJNUM 036 , . , ' "
COMMENT ' ' ,_-"':'. " .- "%
. AISI supports EPA's proposal to exempt from the requirements of
the Phase IV rule impoundments that receive only formerly . '
characteristic'wastes that.have been treated to meet the UTS. The
UTS limits were established for the express purpose of meeting the
."minimize threats"standard of the LDR program. As aresult, .
wastes that have been treated to the UTS do not require any ,
additional LDR controls. Significantly, even under EPA's most
. stringent proposed option, Option 3, impoundments would be able to
receive formerly-characteristic wastes that have been treated to
meet the UTS without complying with any requirements for leaks, . .
volatilization, or sludges. Thus, EPA should exempt impoundments
receiving these wastes from the requirements of the Phase IV rule:
RESPONSE (
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying.hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As.
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule .will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes hi today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the,Clean Water Act or, for underground injection wells^ the Safe
Drinking Water Act. - ', . ...
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
., determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' ,
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
' ' . - 421 ' - . ' '
-------
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
, standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of '
organics) remain prohibited unless treated pursuant by the promulgated method.
422
-------
DCN . ' PH4P036 . . ..-''.
COMMENTER American Iron & Steel Institute
RESPONDER PMC ''.'+'
SUBJECT EQUV .
SUBJNUM 036 ''-. _''.'
'COMMENT '.-.._' ;v . - ';
-' C. EPA Should Continue to,Rely on Existing Regulatory Programs
to Address the Risks in Question
r i
If EPA decides (despite the arguments presented above) to address .
in the current rulemaking leaks, volatilization, and sludges from
non-hazardous waste impoundments managing formerly characteristic
wastes, AISI urges the Agency to continue relying on existing
regulatory authorities, as specified in Option 1. .AISI believes
that existing authorities are fully capable of ,
controlling all of the risks in question. As a result, additional ;
- controls under Subtitle C are not ' , :
warranted. Each type of risk is discussed separately below.
Leaks from non-hazardous waste surface impoundments managing
formerly characteristic wastes already are being adequately
, addressed by a wide range of federal and state regulatory controls.
These controls obviate the need for additional controls under the
N RCRA land disposal restrictions program.
For example, as EPA itself notes in the preamble to the Phase IV
proposal, virtually half ofthe facilities with impoundments that
receive formerly characteristic wastes qualify as RCRATSDFs and
therefore are subject to the Agency's corrective action authority.
60 Fed. Reg. at43,659. This authority extends to all solid waste
management units ("SWMUs")--including non-hazardous waste
impoundments at the facilities, and thus can be used to remedy
leaks from the units that are presently of concern. AISI believes
that the Agency's estimate ofthe percentage
of facilities that are subject to corrective,action may be
significantly too low, because it may ignore facilities that have
RCRA "permits-by-rule" that incorporate corrective
actionrequirements. See 40 C.F.R. §§ 270.60(b)(3)(i) :
(permit-by-rule for facilities with hazardous waste injection
wells); 270.60(c)(3)(vii) (permit-by-rule for Publicly Owned
Treatment Works that accept hazardous wastes for treatment). This
issue is of particular concern to AISI because many iron arid steel
facilities have RCRA permits-by-rule for hazardous waste injection
wells located on-site. Accordingly, AISI urges the Agency to
reconsider its estimate of tile percentage of facilities with
423'
-------
-non-hazardous impoundments receiving formerly characteristic
wastes that are subject to corrective action. <
Those facilities that are not subject to corrective action (and
many that are) are frequently subject to stringent state
groundwater protection rules.that also control releases .
from non-hazardous waste surface impoundments. EPA has indicated
that 36 of the 50 states (72%)have such groundwater protection-
rules. See 60 Fed. Reg. at 43,660. AISI believes that
the proportion of impoundments subject to groundwater protection
rules may be significantly higher, due to the uneven distribution
of impoundments throughout the various states. In general,
it seems reasonable to assume that states with greater amounts of i
industrial activity, and larger number of impoundments, are more .
likely to have stringent groundwater protection standards. Thus,
greater than.72% of the impoundments of concern can be expected to
be subject to state groundwater protection regulations. Although
it is true that the state programs can vary significantly, all of >
them provide a significant level of protection against
groundwater contamination resulting from surface impoundment leaks.
Indeed, many state programs impose detailed design and operating
standards for surface impoundments, require monitoring
of groundwater, and mandate corrective action for releases: ,
In those rare cases where a surface impoundment is not subject to
direct leak controls, inthe form of RCRA corrective action or
state groundwater protection controls, it will at a minimum be
subject to a wide variety of indirect leak controls. For example,
because the impoundments of concern are, by definition,
non-hazardous waste impoundments, neither the wastewaters entering
the impoundments nor the sludges generated in the impoundments can
be listed as hazardous wastes or exhibit a characteristic of
hazardous waste. Similarly, the discharges from the impoundments
. must meet all of the applicable regulatory standards and permit
conditions established pursuant to the Clean Water Act, as well as
the requirements that will be established in
the Phase III LDR final rule. Although none of these requirements
directly address surface impoundment leaks, the composition of
leaks from an impoundment clearly is closely related to the
composition of the wastewaters entering the impoundment, the ,
sludges in the impoundment, and the wastewaters ultimately
discharged from the impoundment. As a result, the limitations
on the wastewaters and sludges in an impoundment indirectly serve
as a control on any leaks from the impoundment
Of course, it could be argued that at least some of these indirect
424
-------
controls do not address the full range of hazardous constituents
required to be addressed under the LDR program; However, the Phase
III regulations are being designed specifically to address all of
the underlying hazardous constituents in formerly characteristic
wastes. Moreover, the other indirect leak controls cover a
substantial percentage of the relevant constituents. For example,
the RCRA Toxicity Characteristic ("TC") covers 8 of the 13 metallic .
constituents that can be considered underlying hazardous
constituents in formerly characteristic wastes. Compare 40 C.F.R.
. §261.24, Table 1 with 40 C.F.R. § 268.48, Table UTS. In the case
of some industries, the TC is likely to cover virtually all of the
relevant constituents (e.g., metals and benzene, in the iron.
and steel industry). To,the extent that the indirect leak controls
(other than the Phase III controls) do not cover all underlying
hazardous constituents, the constituents that they do cover can
serve as indicators or surrogates for the full range of relevant
constituents; In general, if a wastestream is treated to remove or
destroy some organics, it will also be treated to remove or
destroy other organics. Similarly, if a waste is treated to remove
or stabilize some metals, other metals will also be removed or
stabilized.
It could also be argued that the indirect leak controls will not
limit leaks to a level thafminimizes" risks, as required under -
the LDR,program. In fact, however, the Phase III controls likely
will limit leaks to such a level, at least for some impoundments.
Under the Phase III proposal, wastewaters discharged'from a
non-hazardous impoundment managing formerly characteristic wastes
would have to meet either the UTS standards or corresponding
CWA standards for all underlying hazardous constituents in the
wastes. In many cases, leaks from the impoundment are likely to be
similar in composition to the discharged wastewaters, because.
both materials come from the same source. Indeed, if the contents.
of the impoundment are continuously agitated (as in the case of a
biological impoundment), the leaks should be indistinguishable from
the discharged wastewaters. Accordingly, the leaks in many cases
can be expected to meet the UTS or CWA standards; If direct
discharges at these levels are deemed protective of human health
and the environment, leaks at the same levels should also be
deemed protective. After all, leaks from surface impoundments
frequently empty into tile same receiving waters as the discharges
(because the impoundments are frequently located adj acent to the
rivers into which they discharge, and groundwater flow beneath such
impoundments is generally in the direction of the river). Intact,
425
-------
-leaks should be even less of a threat than discharges
with comparable levels of hazardous constituents because leaks
.occur in much smaller volumes and are likely to be diluted and
attenuated in the subsurface environment before they enter the
. receiving waters. Thus, even if the leaks have somewhat higher
concentrations of hazardous constituents than the discharges, they
should not pose a significant threat to human health and
the environment. . "
In sum, because leaks from non-hazardous surface impoundments that
manage formerly characteristic wastes are already extensively
regulated both directly (through the RCRA corrective action program *
and state groundwater protection programs) and indirectly (through
the RCRA definition of hazardous waste, CWA standards, and the
upcoming Phase III LDR rule),there is no need for additional leak
controls under the LDR program. For this reason, AISI urges EPA to
adopt Option 1 with respect to these leaks and continue to rely on
existing regulatory programs to address the risks associated with
leaks from non-hazardous waste surface impoundments.
As discussed above, AISI believes that EPA can and should continue
to rely oh existing regulatory programs to address leaks,
volatilization, and sludges from non-hazardous waste surface
impoundments that manage formerly characteristic wastes; If EPA
nevertheless concludes that additional controls are warranted under
RCRA, the Agency must tailor those controls narrowly to ensure that
they are effective and do not impose unnecessary, duplicative,
or inconsistent burdens on the regulated community. In particular,
if EPA promulgates new regulations to address leaks,
volatilization, or sludges, it should exempt or exclude from
those regulations, facilities that are already adequately addressed
by existing regulatory authorities. In some cases, facilities
should be exempt from all Phase IV controls. In other cases, they
should be exempt from one or more of the media-specific controls.
The'discussion below focuses first on general applicability
criteria for Phase IV controls and then on specific applicability
criteria for the controls on leaks, volatilization, and sludges.
Moreover, hazardous1 waste impoundments already are subject to a
number of regulatory requirements that adequately address leaks,
volatilization, and sludges. For example, prohibited wastes
' generally are required to meet LDR treatment standards before
being placed in a hazardous waste surface impoundment, unless the
impoundment meets the stringent requirements of RCRA § 3005(j)(l 1)
and 40 C.F.R. § 268.4. These provisions address leaks by
specifying that the impoundments must meet the minimum
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technological requirements of RCRA § 3Q04(o),which mandate double
liners, leachate collection systems, and groundwater monitoring.
See 42L/.S.C. § 6925(j)(l 1)(A); 40 C.F.R. § 268.4(a)(3). They
address volatilization by specifying that if evaporation is the
principal means of treatment in a hazardous waste surface ,
impoundment, prohibited wastes must be fully treated to meet LDR
requirements before being placed into the surface impoundment. See
40 C.FiR. § 268.4(b). Of course, volatilization also will be
controlled by operation of the new air emission standards of
Subpart CC of 40 C.F.R/Parts 264 and 265.Finally, sludges are
addressed by the requirement that the impoundments must be'dredged
at least annually, together with the definition of hazardous waste,
which classifies many of the removed sludges as hazardous wastes.
See 42 U.S.C. § 69250)01)(B) (the removal requirement); 40C.F.R.
§ 268.4(a)(2)(U) (same); 40 C.F.R. § 261.3 (the definition of ,
hazardous waste). Because leaks, volatilization, and sludges from
hazardous waste impoundments already are adequately being addressed
by existing RCRA regulations, these units should not be subject to
any new controls promulgated in the Phase IV rulemaking.
Because leaks, volatilization, and sludges from hazardous waste
impoundments already are adequately being addressed by existing
RCRA regulations, these units should not be subject to any new
controls promulgated iri the Phase IV rulemaking. .
EPA has proposed not to apply any leak, volatilization, or sludge
controls to surface impoundments located at treatment, storage, or
disposal facilities that are permitted under RCRA. See 60 Fed. Reg.
at 43*661-62: AISJ supports a regulatory exemption for these
impoundments because releases from them either are being or can be
readily addressed under existing RCRA regulatory authorities.
Indeed, AISI believes that the exemption can and should be
extended to impoundments located at TSDFs operating pursuant to
interim status, or at other facilities subject to enforceable -
cleanup agreements with federal or state regulatory authorities.
RCRA § 3004(u) mandates that hazardous waste permits require
corrective action for all releases of hazardous wastes or hazardous
constituents from SWMUs located at the facility. See42 U.S.C. §
6924(u). As EPA acknowledged in the Phase IV proposal, the
non-hazardous waste impoundments that are the focus of this
rulemaking clearly would qualify as SWMUs. 60 Fed.Reg. at 43,659.
In addition, the term "release" is defined broadly for purposes of
the corrective action program to include "any spilling, leaking,
pouring, emitting, emptying, discharging, injecting, pumping,"
escaping, leaching, dumping, or disposing of hazardous ...
427
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constituents[\ into the environment (including the abandonment or
discarding of barrels, containers, and other closed receptacles .
containing hazardous wastes or hazardous constituents)." 55 Fed. .
Reg.'at 30,874(proposed to be codified at 40 C.F.R. § 264.501). .
Accordingly, there is no need for additional controls under the LDR
program for releases from non-hazardous waste surface impoundments
at permitted TSDFs. . '. .
Moreover, RCRA § 3005(c).requires EPA-to include in hazardous
permits "such terms and conditions as [the'Agency] determines, -
necessary to protect human health and the environment." 42 U.S.C. '
§ 6925(c). This so-called "omnibus" permitting authority is not
limited to materials that qualify as RCRA hazardous wastes or units
that manage hazardous wastes. Accordingly, it could be used to
address releases from non-hazardous waste surface impoundments that
are located at permitted facilities. In this way, EPA has not
one, but two separate RCRA authorities for addressing releases of
hazardous constituents from these impoundments into the
environment. For this reason, impoundments at permitted TSDFs
should be exempt from any Phase IV controls that are established
for leaks, volatilization, or sludges. .
impoundments at interim status TSDFs also should be exempt from
any Phase IV controls because they, too, are subject to corrective
action under RCRA. Section 3008(h) of the statute authorizes EPA
to issue interim status corrective action orders on a . ..
site-specific basis as necessary to protect human health and the
environment. See 42 U.S.C. § 6928(h). This authority, like the
authority under RCRA § 3004(u), can be used to address virtually ,
all releases from non-hazardous waste surface impoundments at
TSDFs. Thus, there is no need for additional controls under the
LDR program for releases from non-hazardous waste surface
impoundments located at either permitted or interim status TSDFs.
The same is true for surface impoundments located at facilities
that are subject to enforceable cleanup agreements (e.g., consent
agreements or orders) with federal or state regulatory authorities:
Accordingly, all three categories of impoundments should be exempt
from any Phase IV controls. , .
AISI supports EPA's proposal to exempt from any PhaseTV controls
impoundments mat meet me minimum technological requirements
("MTRs") of RCRA § 3004(o). In general*hazardous waste
impoundments that meet the MTRs are effectively exempt from
LDR REQUIREMENTS under RCRA § 3005GX11). See 42 U.S.C. §
69250X11)- Non-hazardous waste impoundments should not be
subject to any more stringent requirements in this regard. For .
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this reason, non-hazardous waste impoundments should be exempt from
Phase IV LDR controls if they meet the MTR requirements of RCRA §
3004(o). AISI, however, doubts .whether many, if any, non-hazardous
waste impoundments currently meet the MTRs or could feasibly be
retrofitted to meet the MTRs. Accordingly, AISI does not believe
that this exemption will provide meaningful relief from any Phase
IV controls. "" ' ' .
Finally, AISI urges EPA to allow facilities to take pollution.
prevention into account towards meeting their treatment
obligations, even if they cannot fully meet those
obligations through pollution prevention. Under the Agency
proposal, a facility that reduces mass loadings to the requisite
levels entirely through pollution prevention would be exempt from
any treatment requirements within the surface impoundment, and from
any controls on leaks, volatilization, and sludges from the
impoundment. However, if a facility were only able to achieve 90%
of the required reduction through pollution prevention, it would
get no credit whatsoever for that reduction. Instead, it-would be
subject to the requirements of the Phase III and IV rules Just
as if it had not engaged in any pollution prevention efforts. This
approach acts as an unnecessary disincentive to pollution
prevention. In order to eliminate this disincentive, EPA should
allow facilities to achieve the required reductions in mass
loadings through treatment alone, through pollution prevention .
alone, or through any combination of the two that the facilities
prefer. . ' . .
As discussed above, AISI believes that EPA can and should continue
to rely on existing regulatory programs to address leaks from
non-hazardous waste surface impoundments that manage formerly
characteristic wastes. See Section II.C.l. If EPA nevertheless
concludes that additional leak controls are warranted under RCRA,
the Agency should exclude from those new controls (1) impoundments
engaged in biological or post-biological treatment, (2)
impoundments subject to EPA's corrective action authority under
. RCRA, and (3) impoundments subject to comparable state groundwater
protection programs. Each class of impoundments is
discussed separately below. .
As discussed above, AISI believes that EPA can and should continue
to rely on existing regulatory programs to address volatilization
from non-hazardous waste surface impoundments that manage formerly .
characteristic wastes.. See Section II.C.2.' If EPA nevertheless
concludes that additional air emission controls are warranted under
RCRA, the Agency should nonmechanically "extend" the existing
429
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. controls under Subpart CC of 40 C.F.R. Parts 264 and 265 ,. -
tonon-hazardous waste impoundments, as proposed under Option 2 of
the Phase IV proposal. Instead, the Agency should either develop
new air emission controls tailored specifically tonon-hazardous
waste impoundments managing formerly characteristic wastes, or
modify the Subpart CC rules to reflect the differences between such
units and the hazardous waste units that the rules were designed to
address; ; '
One reason not to extend the Subpart CC rules to non-hazardous
waste impoundments is that those rules are currently in a, state of
disarray. The regulations were promulgated less than a ,
year ago and have not yet become effective. See 59 Fed. Reg.
62,896 (December 6,1994) (final rule); 60 Fed. Reg. 26,828 (May
19,1995) (delaying the effective date until December 6,1995);60
Fed. Reg. 56,952 (November 13,1995) (delaying the effective date
yet again, until June 6,1996). In addition, the rules are subject
to eight separate legal challenges, which have been consolidated
under the caption National Paint & Coatings Association, et al. v. .
EPA, No.95-1143 (D.C. Cir.). EPA itself has acknowledged that the
regulations have resulted insubstantial confusion and may be
seriously flawed in several respects. For this reason, the ,
Agency has indicated that it intends to issue clarifications and
amendments to the Subpart CC regulations in the near future. 60
Fed. Reg. at 26,828 and 56,952. In the meantime, EPA has taken
the highly unusual step of postponing twice the effective date of
the final rule. Id. In light of this
chaos, it would be reckless for EPA to "extend" the Subpart CC
regulations to non-hazardous waste impoundments at the present
time.
Moreover, the Subpart CC regulations should hot be applied to
non-hazardous waste impoundments because the rules were designed
specifically to address air emissions from hazardous waste units.
For example, EPA decided to require air emission controls under
Subpart CC for hazardous wastes containing, at the point of
generation, more than 100 parts per million by weight ("ppmw")
volatile organics, based on an assessment of the risks posed by
hazardous wastes exceeding that standard. See 60 Fed. Reg. at
62,903-905. In making this assessment, The Agency collected
extensive information and made what it referred to as "critical
assumptions"about the composition and characteristics of hazardous
.wastes, and the design and operation of the units in which they are
. managed. 59 Fed. Reg. at 33,515. There is no reason to believe
that the information that was collected and the assumptions that
430
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.were made are appropriate for non-hazardous, formerly
characteristic wastes. On the contrary-, it seems likely that
these wastes, because they are not classified as hazardous wastes,
pose less of a threat than the hazardous wastes evaluated in the
Subpart CC rulemaking. Because of the lower risks posed *
.by non-hazardous, formerly characteristic wastes, such wastes
should not be subject to the same lOOppmw threshold as hazardous .
wastes. ' . .
In light of the manifest problems with the Subpart CC rules, AISI
believes that if EPA determines that additional air emission
controls are warranted under the LDR program, The Agency should
develop (through notice-and-comment rulemaking procedures) new
rules' that are tailored to non-hazardous, formerly characteristic ,
wastes. One possible approach would be to prohibit impoundments
receiving such wastes from employing volatilization as the primary .;
means of treatment for the wastes. This approach is the one that
has been used for nearly a decade for impoundments receiving
hazardous wastes that do not meet applicable treatment standards.
See40 C.F.R. § 268.4(b). There is no apparent reason why more
stringent regulations are necessary or appropriate for
non-hazardous wastes. . ,
If EPA nevertheless decides to "extend" the Subpart CC rules to
non-hazardous waste impoundments managing formerly characteristic
wastes, AISI is concerned that the result could be the needless
imposition of substantial burdens on the iron and steel industry.
Although most of the wastewaters generated directly from
, steelmaking operations generally contain less than lOOppmw
volatile organics at the point of generation arid therefore would
not be affected by the extension of the Subpart CC rules, some of
the wastewaters from cokemaking and related operations are likely
to contain more than 100 ppmw volatile organics at the point of
generation and therefore could very well be affected. These
cokemaking wastewaters are almost invariably managed in tank-based
biological treatment systems prior to placement into a
surface impoundment. However, given the highly sensitive nature of
the bacteria in biological treatment systems, the systems may not ,
uniformly or consistently be capable of achieving the standards . .
of efficiency set forth in the Subpart CC rules (e.g., a 95%
reduction in the mass of organic compounds). See 40 C.F.R. §§
264.1082(c)(2),265.1083(c)(2). As a result, the
surface impoundments in which the treated wastewaters are placed
could be required to be retrofitted with covers that are vented
through a closed-vent system to a control device, as specified in
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the Subpart CC regulations. See 40 C.F.R. §§ 264.1085,265.1086.
Such retrofitting would be prohibitively expensive, particularly
in light of the large size of many of the impoundments in question.
Indeed, some of the relevant impoundments in the iron and steel \ ,
industry are as large as 250 acres in size, raising questions as
to whether retrofitting would even be technologically feasible.
Retrofitting is especially problematic for those impoundments
engaged in biological treatment, because the bacteria in such1
impoundments require large amounts of oxygen. Although the Subpart
CC regulations appear to recognize this'problem and in fact exempt
certain biological treatment units from the retrofitting
requirement, the exemption applies only to biological impoundments
that achieve a specified level of efficiency.
See 40 C.F.R. §§ 264.1085(a)(2), 265,1086(a)(2). Just as AISI is
concerned that the tank-based biological treatment systems in the
iron and steel industry would not be able to achieve the.required
level of efficiency, so it is concerned that the biological
impoundments that sometimes follow such tank-based systems would
not be able to achieve the required level of efficiency,
and therefore would have to be retrofitted in accordance with the
, Subpart CC regulations.
Certain portions of the Phase IV proposal hold out the possibility
that at least some of the impoundments in the iron and steel
industry might be eligible for one or more of the other available
exemptions from retrofitting requirements. However, it is not at
all clear whether any of ,
these exemptions would in fact apply. For example, facilities
apparently would be exempt from Option 2 air emission controls if
they currently are, or will in the "near future" be "subject to CAA
[Clean Air Act] standards for hazardous air pollutants." 60 Fed. .
Reg. at 43,660.Unfortunately, EPA has failed to explain in detail
^how it would decide whether a facility is"subject to" a CAA ,
standard (e.g., whether a facility that is in an industry covered
by a CAA standard, but below applicable regulatory thresholds,
would be considered "subject to" the standard). The Agency also
has failed to explain what it means by the "near future." In
the absence of such information, it is difficult for AISI to
provide meaningful comment. AISI believes that non-hazardous waste'
impoundments in the iron and steel industry are subject to '
sufficient controls under the CAA as to warrant their exemption '
from any Phase IV air emission controls. For example, the benzene
waste NESHAP effectively controls emissions of HAPs from
surface impoundments associated with coke by-product recovery
432
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facilities, where the risks iassociated with such emissions warrant
control. See Section II.C.2, above. Nevertheless, for purposes
of these comments, AISI has little choice but to assume that.at
least some of the impoundments in the iron and steel industry would .
not be eligible for this exemption.
One other exemption that is mentioned in the Phase IV proposal is
an exemption for wastes that are "treated by means other than,
dilution" to below 100 ppmw after the point of generation, but
. before entering a surface impoundment. See 60 Fed. Reg.' at
43,664; Figure 2.0nce again, however, EPA has failed to provide
any additional information on this exemption; For example, the
Agency has failed to explain how it would decide whether treatment
was achieved by means other than dilution. EPA also has failed to
explain the relationship, if any, between this exemption and the
Subpart CC provision that wastes entering an impoundment must be
treated using a process with a certain level of efficiency if the
impoundment is to be exempt from air emission control requirements.
See 40 C.F.R. §§ 264.1082(c)(2), 265.1083(c)(2). In the absence of
such information, it is difficult for AISI to provide meaningful
comment. As noted above, virtually all of the iron and steel
industry wastes that contain greater than 100 ppmw volatile
.organics at the point of generation are managed in tank-based.
biological treatment systems prior to placement into an
impoundment. AISI believes that such treatment should be viewed as
treatment by means other, than dilution. AISI also believes that .
many of the biologically treated wastes contain less than 100 ppmw
.volatile organics before they enter an impoundment, and thus the
impoundment should be exempt from Phase IV air emission controls.
Indeed, some of the treated wastes may contain barely detectable
concentrations of volatile organics, making it irrational to
require that they be managed in surface impoundments with air s ;
emission controls. Nevertheless, for purposes of these comments,
AISI has little choice but to assume that at least some of the
impoundments in the iron and steel industry-would hot be eligible
for this exemption. .
One additional exemption that is not explicitly mentioned in the
proposed rule, but is hinted at broadly, is an exemption from air
emission requirements for surface impoundments located at
facilities that qualify as TSDFs. See, e.g., 60 Fed. Reg.
43,661-62.. As noted above, such facilities, whether operating
pursuant to a permit or interim status, are subject to corrective
action for all releases from SWMUs at the facility. Non-hazardous
waste surface impoundments managing formerly characteristic wastes
. ' ,433
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clearly qualify as SWMUs. Moreover, the definition of "release" is
broad enough to encompass emissions of hazardous constituents into
the atmospheres. As a result, EPA already has the authority under .
. RCRA to address the air emissions of concern in this rulemaking,
. .' when they occur at permitted or interim status TSDFs. \ '
Accordingly, such facilities-should be exempt from any air emission
requirements promulgated under the Phase IV rule. ..'._
In order to avoid the needless imposition of onerous air emission ,
controls on non-hazardous waste surface impoundments that manage .
formerly characteristic wastes, AiSI urges EPA.not to adopt any
such controls as part of the Phase IV rule. Alternatively, AISI
urges The Agency to develop (through notice-and-comment rulemaking,
procedures) new air emission control requirements tailored to
non-hazardous, formerly characteristic wastes,, rather than . t
simply subjecting such wastes to the existing Subpart. CC , ,
requirements, which' were designed for completely different wastes'
and are currently in a state of disarray. In the event that
EPA nevertheless decides to "extend" the Subpart CC rules to
non-hazardous waste impoundments that manage formerly s.
characteristic wastes, the Agency should clarify that those rules v
do not apply to impoundments that receive wastes that have beeri
subjected to biological treatment, even if such treatment does not
achieve the level of efficiency set forth in the Subpart CC rule.
EPA also should exclude from any air emission requirements surface
impoundments located at permitted or interim status TSDFs.
RESPONSE - ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996; which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the, wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act , .
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However, the Land Disposal Flexibility Act does mandate EPA to undertake-a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , , - .
435
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DCN . PH4P036 .... , . '
COMMENTER American Iron & Steel ins..
RESP.ONDER SS.
SUBJECT EQUV ;- ' ; '
SUBJNUM 036 , -
COMMENT ' ., " . . -
Finally, AISI urges EPA to clarify that impoundments that receive '
formerly characteristic secondary materials that are not wastes are .
. excluded from any requirements under the Phase III and Phase IV
- ', .rules. EPA has long acknowledged that at least some . .
. characteristic secondary materials added to wastewater treatment - .
systems serve as effective substitutes for commercial products and
therefore are not solid or hazardous wastes. See, e:g., 50 Fed.
. " Reg. 614,637(January 4,1985) (discussing the use of spent pickle
liquor as a-wastewater conditioner).Because these materials are ;
not solid or hazardous wastes, the requirements of the LDR >
programincluding the requirements of the Phase III and Phase IV
rules never attach. Although AISI believes that these . .
conclusions are inescapable under the RCRA regulatory scheme, in
order to eliminate any possible confusion, AISI requests that the / ^
Agency explicitly state that the final Phase III and Phase IV rules.
will not apply to impoundments receiving formerly . .
characteristic secondary materials that are hot wastes. .'''.
RESPONSE: '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water, Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). Oh March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. :
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any'potential .risks posed by cross-media transfer of hazardous constituents from these
436
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surface impoundments.. The findings of this study, begun by the Agency hi April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would, warrant such
regulation. , ' . , .
437
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DCN . PH4P036 ' . * .
COMMENTER American Iron & Steel Ins. ' . , .
RESPONDER SS ' ' . ' . . '''-.,.'
SUBJECT' EQUV . . .
SUBJNUM 036 -.''.- " , ' , . '
COMMENT V . - . ; ;. '
. Finally, AISI urges EPA to clarify that impoundments that receive
formerly characteristic secondary materials that are not wastes are .
excluded from any requirements under the Phase HI and Phase IV
rules. EPA has long acknowledged that at least some
characteristic secondary materials added to wastewater treatment . ' <
systems serve as effective substitutes for commercial products and
therefore are not solid or hazardous wastes. See, e.g., 50 Fed. .
Reg. 614, 637(January 4, 1985) (discussing the use of spent pickle
liquor as a wastewater conditioner).Because these materials are .
not solid or hazardous wastes, the requirements of the LDR
programincluding the requirements of the Phase III and Phase IV
rules never attach. Although AISI believes that these
conclusions are inescapable under the RCRA regulatory scheme, in
order to eliminate any possible confusion, AISI requests that the .
Agency explicitly state that the final Phase III and Phase IV rules -
will not apply to impoundments receiving formerly
characteristic secondary materials that are not wastes.
RESPONSE: > . . , -
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that -
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the ,
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will hot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act .-."..' . , ' . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
438
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surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
.result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . ' '.'' '
439
-------
DCN PH4P036 , . .
COMMENTER American Iron & Steel Ins. '
RESPONDER SS " ' ': :
SUBJECT EQUV ' .
SUBJNUM 036 '.' - . . ,' . .
COMMENT ..."'
AISI supports'EPA's proposal to exempt from the requirements of.
the Phase IV rule surface impoundments that'receive'only de'minimis
quantities of formerly characteristic wastes. AISI is concerned, ...
however, that the de minimis criteria under consideration by the
Agency are inappropriate and unnecessarily stringent.
1 Under the proposed rule, formerly characteristic wastes apparently,
would not be considered de minimis unless (1) they represent less," -
than 1% of the total flow of wastewater into the surface
impoundment, (2) they contain less than 10 times.the.UTS
. concentrations of hazardous constituents at the point of s
generation, and (3) they total no more than 10,000 gallons per day.
See 60 Fed. Reg. at 11,714-15. AISI supports the 1% total flow
criterion. However, it believes that this criterion alone is
necessary and sufficient for identifying formerly
characteristic wastes that are de minimis. A waste that contains
less than 1% of the total flow into a surface impoundment is
'.' unlikely to significantly affect the level of constituents '. ,
released into the environment from the impoundment. Requiring
monitoring and treatment of such small-volume wastes, however,
would be extremely burdensome. In light of the large costs and
negligible benefits of imposing LDR requirements on formerly
characteristic wastes that represent less than 1 % of the total flow
into .a surface impoundment, such wastes should be exempt from any
and all Phase FV controls. Indeed, this approach is the only one
that would be consistent with other de minimis tests throughout the
LDR program and the RCRA regulations, more generally. See, e.g.,40
C.F.R. §§ 261.3(a)(2)(iv)(E) (exemption from the "mixture rule"
for wastewaters containing de minimis quantities of laboratory
wastes); 268.1(e)(4) (exemption from the LDR program
for wastewaters containing de minimis quantities of ighitable or
corrosive commercial chemical products); 268.1 (e)(5) (exemption
from the LDR program for wastewaters containing de
minimis quantities of ignitable or corrosive laboratory wastes).
Adding a de minimis limitation on the total flow of formerly
characteristic wastes into a surface impoundment is not necessary
or appropriate. As noted above, formerly characteristic wastes
that represent less than 1% of the total flow to a surface
440
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, impoundment are extremely difficult to monitor and treat, and doing
so is unlikely to provide significant environmental benefits.
These conclusions hold true regardless of the absolute quantity, of
the wastewaters in question, and thus a. .total flow criterion should
not be adopted in the final rule. The specific limit proposed by
'EPA 10,000 gallons per day ' is particularly inappropriate
because it would unnecessarily and dramatically restrict the number
facilities eligible for the de minimis exclusion. ' .
s AISI believes that most facilities where formerly characteristic . -
wastes represent less than 1% of the total flow into a- ,
non-hazardous waste surface impoundment generate far greater than
10,000 gallons per day of these wastes. , '
Finally, AISI believes it would be unnecessary and inappropriate
to add a limitation to the de minimis rule based oh constituent
concentrations. Once again, as noted above, : '
formerly characteristic wastes that represent less than 1% of the
total flow to a surface impoundment are extremely difficult to
monitor and treat, arid requiring such activities is unlikely to
provide significant environmental benefits. These conclusions hold
true regardless of the concentrations of hazardous constituents in , ,
the formerly characteristic wastes, and thus a concentration .
limitation should not be adopted in the final rule. In the event that EPA . ;
nevertheless concludes that a concentration limit is necessary and
appropriate, it should increase the proposed limit substantially.
If a formerly characteristic waste that represents no more than 1%
of the total flow into a surface impoundment contains no more than 10 times the
UTS level of a hazardous constituent, the highest possible
concentration of a hazardous constituent in the impoundment is only
10% of the UTS (0.01 x 10 = 0.1 = 10%). Indeed, in most cases,
, the concentrations will be far lower. Such low levels are not
necessary to protect human health and the environment. Indeed,
wastes with hazardous constituents at these levels ordinarily are
not prohibited from land disposal. Accordingly, if the Agency
adopts a concentration threshold as part of the de ,
minimis exemption, it should adopt a much higher concentration
threshold (perhaps with a sliding scale that allows even higher
concentrations hi lower volume waste streams): In addition, EPA
should specify that the concentration limit applies to the
waste streams after any tank-based treatment, or before entering the
surface impoundment, rather than at the point of generation.
RESPONSE:
-------
The Agency is retaining the de minimis exemption previously promulgated at 40 CFR
268.1(e)(4). In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring
that underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems'
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16; 1996, the
President signed the Land'Disposal Program Flexibility" Act of 1996, which provides that .the
wastes in'question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule, will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells,:the Safe '
Drinking Water Act. , . . ' . , ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by, cross-media transfer .of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation., . , , '
442
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DGN . PH4P036 . .',-,'-- ,
COMMENTED AMER IRON AND STEEL INST. '' '
RESPONDER SS ,
SUBJECT EQUV : . - . . .
SUBJNUM 036 . ,
COMMENT . . ' .
2. Air Emissions from Non-Hazardous Waste Surface Impoundments Do Not ' .
.Warrant Additional RCRA Controls
Air emissions from non-hazardous waste surface impoundments managing formerly
characteristic wastes already are being adequately addressed by a range of other federal
regulatory
controls. These controls make additional controls under the RCRA land disposal restrictions
program unnecessary.
For example, where emissions of hazardous air pollutants ("HAPs") such as volatile
organic,compounds from a surface impoundment may be significant, they are likely to be subject
to national emission standards for hazardous air pollutants ("NESHAPs") established under the
Clean.Air Act. The NESHAP applicable to the synthetic organic chemical manufacturing
-industry ' '_."_'-. '
("SOCMI-HON"), which in many ways serves as a template for other NESHAPs regulations,
specifically provides for the control of air. emissions from surface impoundments, where
emissions - . . / .
from those impoundments are significant. 40 C.F.R, § 63.134. In particular, surface . .
impoundments receiving wastewaters containing total volatile organic HAPs at or above
designated concentrations and flow rates must have specific air emission controls. 40 C.F.R.
§ 63.111. Those controls include a cover, closed-vent system, and a control device (e.g., an
absorber, condenser, incinerator, or flare) to control vapors containing HAPs. 40 C.F.R.
§63.134. , , . ' -
1 With respect to the iron and steel industry, the NESHAP for benzene waste operations
requires control of air emissions from surface impoundments receiving wastewaters from coke
by-product recovery plants, among other facilities and operations. 40 C.F.R. § 61.340(a). Like
'the . . ,. - . ; . ' - '- . '.'..'
SOCMI-HON, this NESHAP requires that such surface impoundments must be equipped with a
cover,iclosed-vent system, and vapor control device. 4'0 C.F.R. § 61.344. Wastewaters
containing benzene below certain concentrations or flow levels may not trigger these ,
requirements, but only where the risks do not warrant such controls. 40 C.F.R. § 61.342(c)(2).
Although it is specifically benzene that triggers the surface impoundment controls, those
controls, .
once installed, will control other volatile organic HAPs. Moreover, benzene is the primary HAP
of concern for coke by-product recovery plants. Therefore, benzene acts as an "indicator
*' , ' . ' . s
'."' ' 443 . ' '' '..
-------
pollutant" for determining when controls.on surface impoundments are required. Accordingly,
the benzene waste NESHAP effectively controls emissions of HAPs from surface impoundments
associated with coke by-product recovery facilities, where the risks associated with such
emissions warrant control. . - .
; ' r ' ' '
In addition to existing requirements, the Clean Air Act Amendments of 1990 created a ,
schedule for examining various processes and industries, requiring that specific regulations
addressing air emissions from those processes be promulgated within four, seven, or ten years .
from enactment. For. example, EPA plans to promulgate a NESHAP for steel pickling using an
HCL process in November 1996, well before the statutory deadline of November 1997. 42
u.s.c. . ' .'/. ..''''.
§ 74I2(e). This NESHAP will examine emissions of HCL, chlorine, and other HAPs in
connection . , . '
with steel pickling processes and HCL regeneration processes. 60 Fed. Reg. 23,999 (May 8,
1995). Like the SOCMI-HON, the steel pickling NESHAP will analyze the emissions from the
entire process,.including wastewater handling. If the emissions associated with wastewater
handling in surface impoundments merit controls, then such controls will be required as part of
the '.''" ' . -
NESHAP, just as they are in the benzene waste NESHAP and the SOCMI-HON.
Other NESHAPs that were targeted for promulgation before November 1997 were the ,
NESHAPs for Stainless and Non-Stainless Steel Manufacturing and Electric Arc Furnace
("EAF") >,'.'" .
Operation. EPA has proposed to delist these two categories based on an analysis of information
about emissions from both categories. EPA's analysis revealed that neither category is a "major
source" of emissions of any HAH. A major source is defined as a source with the potential to
emit . . . ,
10 tons per year ("tpy") of a single HAP or 25 tpy of all HAPs. EPA calculates this emission
potential in an extremely conservative fashion, assuming that virtually all HAPs used by a facility
are eventually emitted. Accordingly, a finding that a source is not a major source indicates
relatively low use of HAPs by the source. A preliminary risk assessment was also performed in
connection with this analysis. Therefore, EPA has examined the emissions from these facilities
and the risks posed by those emissions - apparently including the risks associated with emissions
from surface impoundments and has determined that regulation of these sources is not
warranted. - . '
NESHAPs for three other source categories associated with the iron and steel industry are
scheduled for promulgation before November 2000. They include iron foundries, steel foundries,
;and integrated iron .and steel manufacturing. These facilities were viewed as lower priority
sources posing less risk, and accordingly were designated to be addressed last See 58 Fed. Reg.
63,941,63,943 (Dec. 3,1993). Once they are addressed, these facilities will be subject to
comprehensive analysis, just like the facilities analyzed for purposes of the SOCMI-HON.
Although these NESHAPs are still in the developmental stages, we have been informed that EPA
, ' . * - i
'"-' .. 444 . '. ' - ' . -: - -
-------
does not currently believe that any controls on the wastewater treatment systems, including
surface impoundments, in these industries will be necessary., -
The federal Clean Air Act regulatory program not only imposes direct controls on
' hazardous air pollutants, but also imposes other controls that indirectly may reduce releases of, .
underlying hazardous constituents from non-hazardous waste impoundments that receive
formerly . . -
characteristic wastes. For example, EPA has established,National Ambient Air Quality
Standards ' ' - . ,
("NAAQS") for a variety of so-called "criteria pollutants" and has required all states to adopt
State Implementation Plans ("SIPs") for either achieving those standards (in areas that currently
are in "non-attainment" of the standards) or preventing significant deterioration of air quality (in
areas that have already attained the standards). The Agency has also developed a detailed
permitting program for all significant ah- emission sources under Title V of the Clean Air Act., '
Although these programs may not explicitly address all of the constituents covered by the UTS,
they will in general result in reduced emissions of those constituents.' After all, air pollution
control equipment installed to address one pollutant almost invariably reduces emissions of other
pollutants. Once again, therefore, the federal Clean Air Act regulatory program clearly
addresses ' . .". ,
. the air emissions of concern m this rulemaiqng. . .
In these ways, air emissions from surface impoundments are already being addressed by
current and upcoming regulations under the Clean Air Act. The Clean Air Act creates a rational
scheme for addressing risks posed by emissions from surface impoundments in a systematic
fashion. Various processes and industries have been categorized based on potential emission
risk, /' . .. ' ' - ' ' , . . _ .
and will be analyzed and regulated if necessary, including imposing controls on emissions from
surface impoundments. The prioritization of facilities and allocation of resources created by the
Clean Air Act should not be disrupted by new RCRA regulations. Therefore, additional emission
controls on surface impoundments under the LDR program are unnecessary and could be
disruptive.
Finally, it is worth noting that air emissions from non-hazardous waste surface
impoundments located at facilities that qualify as hazardous waste TSDFs are also subject to
regulation under the RCRA corrective action program. As noted above; facilities operating
pursuant to a RCRA permit or interim status are subject to corrective action for all releases of '
hazardous constituents from SWMUs at the facility. See 42 U.S.C. §§ 6924(u), 6928(h).
Non-hazardous waste surface impoundments clearly qualify as SWMUs. Moreover, the
definition , .
of ' .'-.''.* -
"release" is broad enough to encompass emissions of hazardous constituents into the atmosphere.
See 55 Fed. Reg. 30,798, 30,874 (July 27,1990) (proposed to be codified at 40-C.F.R. §
264.501). As a result, EPA already has authority even under RCRA to address many of the air
' f , - - '"
I ' * .
-'... ' .- - . " ' 445 - -.;....-
-------
emissions of concern in this ruleihaking. ' ' ...
Clearly, the Agency already has broad authority under both the Clean Air Act and the
RCRA corrective action program to address air emissions from non-hazardous waste surface
impoundments receiving formerly characteristic wastes. This authority also .is being used
extensively to address the emissions of concern in this rulemaking. For these reasons, AISI
urges EPA to adopt Option 1 with respect to air emissions and continue to rely on existing
regulatory programs to address the risks associated with emissions from non-hazardous waste
surface impoundments. . . . ,
RESPONSE /"
In the .August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, oh April 8,1996, EPA' withdrew its treatment standards for these wastes (61 FR 15660):
today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do riot
apply to TC metal wastes if the characteristic is removed and the Wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' , , . . , .
However, the Land Disposal Flexibility Act does mandate EPA.to undertake a 5-year study^to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency, in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ,
446
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DCN PH4P036 , .
'COMMENTERAMER. IRON AND STEEL INST. .
RESPONDERSS '
S.UBJECT EQUV ' ' ' . '
SUBJNUM 036 ' . , . - . . . ' '
COMMENT Y . - .' . ; ; - _'..
> .. . . .''.,
1. Certain Facilities Should Be Exempt from All Phase IV Controls
In the Phase IV LDR proposal, EPA indicated that the following categories of
impoundments would be exempted from any new LDR requirements concerning leaks,
volatilization, and sludges: - " ,
(1) Hazardous waste impoundments; s ,
' *
(2) Impoundments that do not receive formerly characteristic wastes that contain, at
. the point of generation, underlying hazardous constituents in concentrations above
the UTS;, - . - ' .
(3) Impoundments located at permitted TSDFs; . ' V
(4) Impoundments that meet the RCRA minimum technological requirements;
(5) Impoundments that meet the RCRA "no'migration" standard;
' " i ' i
(6) Impoundments that receive only de minimis quantities of decharacterized wastes;
(7) Impoundments at facilities that meet the requirements for the pollution prevention ,
: compliance alternative; and f. '
(8) impoundments that receive only decharacterized wastes that have been treated to
, meet the UTS. , . ' ^ .. :
- i " : ' <
See, e.g., 60 Fed.'Reg. at 43,662. In general, AISI supports the proposed regulatory exemptions.
.- However, it believes that some of the exemptions need to be clarified or modified in certain
respects. Each exemption is discussed separately below.
1 . .. .. . .
.. " a. Hazardous Waste Impoundments Should Be Excluded from Any
Phase IV Surface Impoundment Controls ,
1 ^* ' ' - '-_-.
i '
Hazardous waste impoundments clearly should not be subject to any of the leak,
volatilization, or sludge requirements that may be promulgated in the Phase IV rulemaking. This
rulemaking is being conducted in response to the court decision in Chem Waste II, and that
447
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decision was focused exclusively on non-hazardous waste surface impoundments. See 976 F.2d
at 20 (stating that the "CWA treatment facilities" at issue in the case "do not meet RCRA subtitle
C standards and they are regulated solely under RCRA subtitle D (solid wastes)."). ^Thus, it.
would be unnecessary and inappropriate to apply the Phase IV restrictions to hazardous waste
impoundments. . . >
'e. Impoundments that Meet the RCRA "No Migration" Standard
Should be Exempt from Phase IV Surface Impoundment Controls ;
N
AISI supports EPA's proposal to exempt from any Phase IV controls impoundments that.
meet the statutory "no migration" standard. The LDR provisions of RCRA explicitly state that
wastes that are otherwise prohibited from land disposal can be placed in a land disposal unit if "it
has been demonstrated to the [Agency], to a reasonable "degree of certainty, that there will be no-
migration of hazardous constituents from the disposal unit... for as long as the waste remains
hazardous." 42 U.S;C. §§.6924(d)(l), (e)(l), (g)(5). Thus, there is no statutory authority for
applying Phase IV controls to "no migration" units. AISI is concerned, however, that EPA is
interpreting the "no migration" standard in an inappropriate and unnecessarily stringent manner.
Under the Agency's current interpretation, it is doubtful -whether any non-hazardous waste
surface impoundments would qualify as "no migration" units. Accordingly, an exemption for,
"no -..'' ' ' , ' ,"'''-.
migration" .units is unlikely to provide any meaningful relief from Phase IV LDR controls. AISI
believes that under a proper interpretation of the "no migration" standard, some non-hazardous
waste impoundments might be exempt fronvPhase IV LDR requirements. For this reason, AISI
urges EPA to reconsider its interpretation of the statutory standard.
f. Impoundments that Receive Only De Minimis Quantities of
Formerly Characteristic Wastes Should be Exempt from Phase IV
Surface Impoundment Controls
, g. Impoundments that Elect the Pollution Prevention Compliance
. . Alternative Should be Exempt from Phase IV Surface
Impoundment Controls .-..' ' i
' ' !'
AISI supports EPA's proposal to provide a pollution prevention compliance alternative
for facilities that otherwise would have to comply with the requirements of the Phase IV rule. As
the Agency pointed out in the preamble to the proposed Phase III rule, the court in Chem Waste
;II indicated that one of the chief goals of the LDR program is to reduce the total mass loading of
hazardous constituents entering the environment. 60 Fed. Reg. at 11,713. Pollution prevention
is. . _ ' ' ' ' -
one obvious method for achieving this goal. Accordingly, it should be allowed as an alternative
to -'. - . . .'"''. '
448
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treatment, if it can achieve reductions^ total mass loading that are comparable to what would be
achieved if the wastes in question were treated to meet the UTS, , ,
* , s- *
AISI, however, urges EPA to make the pollution prevention compliance alternative as
flexible as possible, so as to maximize its potential usefulness, consistent with statutory goals.
For .-"." ''
example, AISI supports the Agency's apparent position that pollution prevention measures c6uld
be applied to any of the wastes entering a surface impoundment, and, not just the formerly
characteristic wastes. See 60 Fed. Reg. at 11,713. Obviously, the source of the hazardous
constituents is unimportant from an environmental perspective. If the mass loadings can be
reduced most cost effectively by engaging in pollution prevention with respect to wastes other
than the formerly characteristic wastes, there is no reason to require that the reductions come
from the formerlv characteristic wastes: '. , ' "
U1CU1 UK* lirilllWHjr VliCUUV/lV-AiailV WCUlVt?, L
from the formerly characteristic wastes;
AISI also supports the idea of allowing "trading" between pollutants, so that reductions in
the mass loading of one constituent through pollution prevention can reduce or even eliminate .
the . / '' .- ..'. - ..'"
need to treat other constituents. See 60 Fed. Reg. at 11,714. If two constituents have similar
health effects, there is no apparent reason why the Agency should require that reductions be made
for one constituent, rather mail the other. The statutory mandate is to minimize risks from
whatever source they arise, not to minimize risks associated with particular hazardous '
constituents. .Accordingly, the Agency, should authorize trading between pollutants, just as it has
done, or has proposed to do, in other related contexts. See, e.g., 40 C.F.R. § 266.106(c)(2)
(establishing an overall limit for carcinogenic metals, as opposed to separate limits for individual
metals, in emissions from boilers and industrial furnaces that burn hazardous wastes); 40 C.F.R.
§ ..'.' . : ' " *.- -
63.112(a) (establishing a single limit for total organic HAPs, rather than separate limits for
individual HAPs, in emissions from synthetic organic, chemical manufacturing facilities); 59 Fed.
Reg. 15,504,15,548-63 (April 1,1994) (proposing to allow limited "trading" between the
emissions of individual HAPs, pursuant to section 112(g) of the Clean Air Act). ^
a.; Biological and Post-Biological Impoundments Should Be Exempt
from Any New RCRA Leak Controls -
. r / . <. /
According to the preamble to the. Phase IV proposal, the reason for considering the
imposition of surface impoundment leak controls under the LDR program is to ensure that the
underlying hazardous constituents in restricted, formerly characteristic wastes are genuinely
being . .
treated, rather than simply being released from a surface impoundment into the groundwater
underlying the facility. However, if the wastes are being subjected to biological treatment either
before they are placed in the impoundment or while they are in the impoundment, there is no
449
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reason to be concerned that the constituents are simply being released into the groundwater. In
the absence of any such concern, the impoundments should not be subject to additionalleak
controls under the LDR program. '
b. Impoundments Subject to RCRA Corrective Action Should Be ,.
Exempt from Any New Leak Controls
As discussed above, approximately half (if not more) of all facilities with impoundments ,
that receive formerly characteristic wastes are TSDFs which are subject to EPA's corrective
action authority under RCRA. This authority extends to all SWMUs at the facilities, including
any non-hazardous waste surface impoundments that may be present, and thus can be used to
address the leaks that are of concern in this rulemaking. Because adequate authority already
exists to address leaks from non-hazardous waste impoundments at TSDFs, these-facilities N
should ' " '
be exempt from any leak control requirements that may be promulgated in the Phase IV
rulemaking. '
-,..-- .
In the case of TSDFs with permits, RCRA § 3004(u) requires the permits to address
releases from all SWMUs located at the facility, including non-hazardous waste surface
impoundments. Specifically, these facilities must perform facility assessments and/or
investigations .'- . ' , .
to identify and evaluate releases from known SWMUs. In addition, they must clean up such
releases as necessary to protect human health and the environment. Finally, these facilities
.generally are required to take similar steps for SWMUs and releases that may be discovered in
the . _ ' ' -
future. In these ways, EPA can be assured that leaks from non-hazardous waste impoundments
at '.''..
.permitted facilities are already adequately, being addressed. Accordingly, no new leak control
regulations for permitted facilities are warranted under the LDR program.
In the case of TSDFs operating pursuant to interim status, RCRA § 3008(h) authorizes
EPA to issue interim status corrective action orders on a site-specific basis. Such orders can
cover all SWMUs at the TSDF, including non-hazardous waste surface impoundments, and can
require identification, evaluation, and cleanup of releases from such units, just as in the case of
permitted facilities. As a result, adequate cleanup authority already exists for leaks from
non-hazardous waste surface impoundments at interim status TSDFs. EPA has also been
extremely ' . , .
aggressive in exercising this authority. Accordingly, interim status TSDFs should be exempt
from .
any leak control requirements that may be promulgated under the Phase TV rule. At a minimum,
interim status facilities should be exempt from such controls in the following circumstances:
' t .
(1) If the facility already is actively engaged in corrective, action for releases from its :
450
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.^non-hazardous waste surface impoundments (in which case the releases of concern
. clearly.are being directly addressed); .
(2) If the facility is currently subject to an interim status corrective action order (in
which case EPA already is focused on risks that may be present at the facility and a , .
mechanism already exists for quickly addressing any risks that may be determined
to be significant); ' .-
' " ' / ,
(3). If the facility is ranked "high" or "medium" priority on the National Corrective ' '
Action Priority System ("NCAPS") list (in which case the Agency has already
reached a tentative conclusion about potential risks at the facility and can be
expected to take corrective measures in the near future);
.(4) If the facility has already been investigated and a determination has .been made that
there are no leaks that warrant corrective action; or
.(5) If the facility is currently undergoing an investigation.. ' '. "
S t ,
c. Impoundments Subject to State Groundwater Protection Programs
Should Be Exempt from Any New RCRA Leak Controls
As EPA acknowledges in the preamble to the Phase IV proposal, many states have
groundwater protection programs that apply to non-hazardous waste surface impoundments
managing formerly characteristic wastes. Several of these programs include groundwater
monitoring and corrective action requirements similar to those that are currently under '
consideration by EPA as part of the Phase IV rule. Clearly, where such state programs exist, no
additional federal controls are necessary. Accordingly, surface impoundments subject to such -
. state regulatory programs should be exempt from any Phase IV leak controls.
"" , \ ' ' ,
AISI is concerned, however, that EPA may limit the exemption in question to surface
impoundments subject to state programs that are virtually identical to the federal controls
currently under consideration. This approach would unnecessarily restrict the exemption and
, , could render it almost entirely meaningless. After all, few, if any, state programs can be
expected . . ~
to replicate, exactly federal regulations that are as of yet unwritten. The existing state programs,
however, may be adequately protective of human health and the environment. For example, a
state program may not explicitly address the full range of UTS constituents, but may address
constituents that have been determined (on a site-specific or generic basis) to be the most
important parameters or suitable indicators for other key parameters. Similarly, a state program -
may not use the same corrective action triggers as the federal program, but may use a different set
of triggers that have been determined to be appropriate, based on the character and likely use of
the underlying groundwater. AISI encourages EPA to adopt a flexible approach for '
implementing ".>''
''"'.'.' ' '. -451 ',
-------
.this regulatory exemption, so that unnecessary burdens can be avoided, while protecting human
health arid the environment. \ *
RESPONSE .-;,
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' .
i ' 't
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996* may
result in proposed regulations for these units, if risks are in fact found that would warrant such '
regulation.
452
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. \
DCN . PH4P036' " - ' , .
COMMENTER AMER. IRON AND STEEL INST. , ' ' "
RESPONDERSS . . , .
SUBJECT EQUV , ,
SUBJNUM ," ' .. .'-.-"
COMMENT - - ' - . ,
V . .
" 3. Any New Air Emission Control Regulations Promulgated by EPA Should
Be Tailored to Address the Risks of Concern
If, despite the arguments presented above, any non-hazardous surface impoundments
managing formerly characteristic wastes are not exempted from the Phase IV rule and therefore
become subject to the requirements of Subpart CC, the resources spent in regulatory compliance
would not significantly further the goals of the land disposal restrictions program. According to
the preamble to the Phase IV proposal, the reason for considering the imposition of air emission
controls under the LDR program is to ensure that the underlying hazardous constituents in ,'
restricted, formerly characteristic wastes are genuinely treated, rather than simply volatilized into
' the air. In the present case, however, there can be no doubt that the formerly characteristic
wastes in question are subjected to bpna fide biological treatment prior to placement into a -'
surface impoundment, even if such treatment does not achieve the stringent requirements for
efficiency set forth in the Subpart CC rules. Accordingly, additional air emission controls are not
needed to ensure that hazardous constituents are not simply being transferred into the
atmosphere. . " . .
RESPONSE . , ^
In the August 22, .1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed, the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
, 453
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in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. " ...
) '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments.-The findings of this.study, begun by the'Agericy in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ..' -
\
454
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' DCN . PH4P036 : , , ' .
COMMENTER AMER. IRON AND STEEL INST. ~
RESPONDERSS ,
SUBJECT EQUV . . ' .
SUBJNUM 036 - , , '
COMMENT , - . ^ . ' . .
4. Any Sludge Control Regulations Promulgated by EPA Should Exempt
Certain Key Categories of Sludges . s '
'.
* '
As discussed above, AISI believes that EPA can and should continue to rely on existing
regulatory programs to address sludges removed from non-hazardous waste surface
impoundments that manage formerly characteristic wastes. See Section ILC.3. AISI also .
-' believes that requiring such sludges to be treated to meet the UTS standards for all underlying
hazardous constituents would unnecessarily impose exorbitant costs on domestic industry. For
example, one AISI member company has estimated that it would cost approximately $ 150 to
$250 per ton to treat the sludges removed from surface impoundments associated with .
cokemaking operations for the organic hazardous constituents that they contain (using either
low-temperature or high-temperature thermal, desorption)! Based on an estimated 1,000,000
cubic -.-..
feet of sludge in just one such surface impoundment, the total cost of treatment for the sludges in
the single impoundment would be between $3.75 million arid $6.25 million (not counting other
expenses, such as the costs of removing, transporting, and ultimately disposing of the sludge).
These costs cannot be justified,.given existing regulatory controls that already adequately address
the risks of concern. Accordingly, EPA should not establish any sludge controls as part of the ...
. Phase TV -rule. ,
According to the preamble to the Phase IV proposal, the reason for considering the
imposition of surface impoundment sludge controls under the LDR program is to ensure that the
underlying hazardous constituents in restricted, formerly characteristic wastes are genuinely
treated, rather than simply transferred into the sludge and released into the environment at
another
site. However, if the wastes are subjected*© biological treatment either before they are placed in
the impoundment or while they are hi the impoundment, there is no reason to be concerned that
the constituents are simply being transferred into the sludge. In the absence of any such concern,
the sludge should not be subjected to additional controls under the LDR program. ...
As noted above, facilities with RCRA permits or operating pursuant to interim status are
subject to corrective action for SWMUs located at the facility. Non-hazardous waste surface
impoundments managing formerly characteristic wastes clearly qualify as SWMUs. Thus, any
releases from these impoundments are already subject to EPA's corrective action authority if they
455
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are located at permitted or interim status TSDFs. EPA obviously could use this authority to
require removal of sludges from an impoundment. Likewise, it could require that such sludges,
, once removed, are managed in a protective manner, either on-site or off-site. In this way, the
risks associated with sludges generated at these facilities already can be adequately addressed
under existing regulatory authorities. Accordingly, these sludges should be exempt from any
Phase IV sludge controls.
Sludges disposed at facilities that meet the federal criteria for hew municipal solid waste
landfills under Subtitle D of RCRA also should be exempt from any new controls that may be
promulgated under the Phase IV rule. The Subtitle D criteria were developed specifically to,
' address the risks associated with the disposal of non-hazardous solid wastes. The criteria require,
among other things, that landfills install liners, conduct groundwater monitoring, and engage in
unit-specific corrective action, as necessary to protect human health and the environment. See 40
C.F.R. Part 258. These criteria ensure that hazardous constituents in non-hazardous solid wastes
are not freely being released into the environment. Indeed, EPA has proposed to use these same
criteria as the basis of leak controls for surface impoundments under the Phase IV rule. To the
extent that the Subtitle D criteria are deemed adequately protective for leaks, they should also be
deemed adequately protective for sludges. Accordingly, sludges disposed at facilities that meet '
the Subtitle D criteria should be exempted from further controls under the Phase IV rule. .
' * * .' ' '' ' .
Sludges disposed at facilities that meet applicable state regulatory requirements likewise
. should be exempt from any Phase IV controls. As in the case of the federal Subtitle D criteria,
state requirements for industrial landfills are designed to address the risks associated with
disposal
of non-hazardous wastes, such as sludges. Indeed, these requirements are frequently tailored to. ,
the particular risks posed by individual landfills. In light of the protections afforded by these
state , " . , .. .
requirements, additional controls under the LDR program are not warranted. Thus, sludges
disposed at facilities that meet applicable state regulatory requirements should be exempt from
any Phase IV sludge controls.
. Finally, EPA should clarify that sludges destined for reclamation would not be subject to
any requirements under the Phase IV rule. Under the RCRA regulations, sludges destined for
reclamation are classified as solid wastes only if they are explicitly listed as hazardous wastes.
See ''.:.. . - . ' .-.-'
40 C.F.R. § 261.2, Table 1. Non-hazardous sludges from surface impoundments that receive
formerly characteristic wastes clearly are not listed as hazardous wastes and therefore are not
solid wastes when destined for reclamation. As non-wastes, these sludges are not subject to any -
requirements under the LDR program. See, e.g., 55 Fed. Reg. at 22,660 ("EPA... will continue
to provide exclusions from the land disposal restrictions for waste excluded from the definition
of , ' , ' " ' ' '
hazardous or solid waste under 40 CFR 261.2-.6.11). Accordingly, sludges destined for
reclamation must be excluded from the requirements of the Phase IV rule. .
'': .' . . 456 . . -.-'-' ; - -''.
-------
RESPONSE . '. , . ' . ; . ' . . . '
In'the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were, not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic, of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the :
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8; 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phaise IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal*wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the-Clean Water Act or, for underground injection wells, the Safe- .
Drinking Water Act. , ^
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996^ may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . . "
457 '
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DCN ; PH4P036 - .
COMMENTERAMER. IRON AND STEEL INST. .
RESPONDER SS ' .*'''
SUBJECT EQUV
SUBJNUM 036
COMMENT . ' / - . ' ' ' ',"'"'
' , - '
E. EPA Should Not, and Indeed Cannot, Require Formerly Characteristic Wastes to
be Treated to Minimize Risks Before Being Placed in a Surface Impoundment
/ ,.
The third and'final option proposed by EPA to control potential cross-media transfers of
hazardous constituents from non-hazardous waste surface impoundments receiving formerly
characteristic wastes is to require that those wastes be treated to meet all applicable UTS '
standards prior to being placed in the impoundments, except in.those cases where the
impoundments meet the RCRA minimum technology requirements or the statutory
"no-migration" \ . - '
standard. 60 Fed. Reg. at 43,675. EPA has indicated in the preamble to the proposed rule that it
does not favor, and thus, is not recommending, adoption of this "Option 3" approach, as it would
cause costly and unwarranted disruption of existing wastewater treatment systems^ and would
"destroy the very accommodation between the CWA and RCRA upheld by the D.C. Circuit" in
Chem Waste II. Id. at 43,659,43,675.; . ,,
AISI agrees with EPA that proposed "Option'3" would be enormously disruptive of
industrial wastewater treatment processes and is not necessary to protect human health and the -
environment. As previously discussed, existing state and federal regulations are adequate to
protect against excessive cross-media transfers of hazardous constituents from formerly
characteristic wastes that are managed in non-hazardous waste surface impoundments.
Moreover, Option 3 would impose exorbitant costs on the regulated community. For example,
one AISI member company expects that, if EPA were to adopt Option 3, it would have little
choice but to replace its CWA surface impoundments with tank-based treatment technologies, at
a . ' . ' '
cost of approximately $100 million at just one of its integrated iron and steelmaking facilities.
Clearly, these costs cannot be justified by the negligible benefits of adopting Option 3.
Accordingly, under the principles set forth in Executive Order 12,866, the Agency must reject
that ^ '
. option. , ' '''
' ' "t
Perhaps even more importantly, as EPA has observed, "the Court [in Chem Waste II]
clearly did not intend to require that treatment standards be met invariably by treatment preceding
impoundment-based management systems." 60 Fed. Reg. at 43,656. On the contrary, the D.C.
Circuit explicitly recognized that:
i" (
RCRA section l006(b)(l) contemplates some accommodation with existing CWA
'." . ' ; 458 '-.-, ''.''.-
-------
systems; to strictly apply each RCRA prohibition [prior to placing decharacterized wastes .
into a surface impoundment that is part of a CWA treatment system] would nullify section
1006(b)(l)and, we think, would be untrue to Congress's intent. /
f *" " . ' -* .
\
Chem Waste II, 976 F.2d at 24. Thus, the Court ruled that decharacterized wastes that do not yet
meet all applicable LDR treatment standards may be placed in CWA-regulated surface
impoundments so long as the ultimate discharge from the facility satisfies those standards. Id. at
23-24. EPA's proposed Option 3 would "effectively invalidate}]" CWA treatment systems,
without regard to the actual performance of those systems, and therefore would contravene
section 1006(b)(l) of RCRA. For this reason, Option 3 must not be adopted in the final Phase IV
rule. See 60 Fed. Reg. at 43,677.
RESPONSE - .... ' ' .
In the.August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
. underlying hazardous "constituents in decharacterized wastes were riot released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655); Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,.
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
, President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660),
Today's Phase IV.final rule will not promulgate provisions for managing leaks, sludges, arid air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act '..'_ ,
r" '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
. result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .: < . , ,
459
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DCN PH4P041 ,'.'..
COMMENTER Sterling - ' ;
. RESPONDER SS .
SUBJECT EQUV , . ,
,SUBJNUM 041 . x / : '
'COMMENT " , < . . ' . . . '
While Sterling continues to believe that the Chem Waste'court's '
reading of RCRA is labored at best, and .far exceeds the statutory . ' ,.
mandate, we believe that EPA has developed a framework, which, with
important clarifications and minor revisions, responds to this-
opinion and attempts to provide reasonable accommodation between
the two regulatory schemes. Sterling endorses'the general comments
being submitted today by the Chemical Manufacturers Association
("CMA")on both the treatment equivalency issues related to Clean
Water Act ("CWA") impoundments and on the underground injection
. . ' well issues. , ^ ' ''. .
Option One, which essentially defers to the Phase III proposal and .
the Clean Water Act and other existing regulatory schemes to ensure
. equivalent treatment of underlying hazardous constituents, is the
only legally-supportable approach that EPA can take. Having said
that, Sterling urges EPA to evaluate and respond to all comments on
the Phase III rule (including the point of generation issue raised
in that rulemaking) before it finalizes the Phase IV proposal. The
comments on the two rulemakings should be evaluated by the same EPA
staff and considered together because the issues are very
intertwined. - ,
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that ,
underlying hazardous constituents in decharacterized wastes were not released to the . .
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule dp not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. * , ,
460 ' ' '
-------
However, the Land Disposal Flexibility Act does mandate EPA to undertake-a 5-year study to
determine "any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments, the findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such"
regulation. ; ' .
,'.--' ( '' ' . .>''. .
EPA evaluated and responded to all comments on the Phase III rule, before finalizing the Phase
IV rule. EPA'sresponses-to comments received on the.Phase III proposed rulemaking are
contained in the Comment Response Document developed for the Phase III final rule, which is
included in the'docket for the Phase III final rulemaking. -, -
The Agency notes the commenter's support for the comments submitted by the CMA.
461
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DCN - PH4P041 '.'.'. , , -
COMMENTER Sterling , - . -.
RESPONDER SS ; '. '. .
SUBJECT" EQUV . , .... -',-.'
.SUBJNUM 041 V .
COMMENT ,/' . ". ' " / " .
> Sterling endorses, and incorporates here by reference, the ,
comments submitted by CMA's Underground Injection Control Task
Group ("UIC Group") on the impact of the Phase IV proposal on
.underground injection wells. Sterling is particularly concerned ,
about .the potential impact of the proposal on Class I wells that , , . v ' '
are operating with no migration petitions. Specifically, EPA should
clarify that, for Class I wells operating with approved no
migration petitions: (1) the LDRs dp not apply to decharacterized
wastes; and.(2) waste codes for newly-listed or characteristic - '
wastes may be added as a non-substantive revision to the approved
petition. And EPA should revise the notification requirements, as .
, proposed, to reduce reporting burdens for Class I wells with '
approved petitions. . ,
The CMA UIC Group has elaborated on each of these issues, and
Sterling will not repeat those comments. We do want to emphasize, ;
however, that the entire point of the no migration petition process .
is to demonstrate, consistent with RCRA's directive, that injected
waste will remain safely confined within the injection zone as long
as the waste remains hazardous. If the wastestream that was the .
subject of the extensive analysis and modeling undertaken during
the petition process has not changed, but rather it is EPA's method
of characterizing the waste that has now changed, there is no
legally supportable basis for requiring a modification to , .
the petition., ,
\ . . :
RESPONSE: . ' , '.''
The Agency notes the commenter's support for the comments submitted by CMA's Underground
Injection Control Task Group.
: - , '.-'_" '
Facilities that inject newly identified and listed wastes and/or mineral processing wastes covered
in the Phase IV final rule into Class I injection wells, will have to make a demonstration of no^
migration to be relieved of the prohibitions for these wastes. However, the Agency understands
that none of the facilities affected by the Phase IV final rule that dispose of such wastes in Class I
injection wells transport their waste off-site or have the necessary, capacity to treat their waste on-
site by BDAT. For those facilities affected by the prohibitions which are unable to make a
successful no-migration demonstration, and/or are unable to meet the requirements of other
treatment options promulgated in the Phase IV final rule, constructing a treatment facility on-site
:;';. ' ' 462' - '.-.
-------
would be the only permissible alternative in meeting LDR treatment standards for their
hazardous wastes. The Agency understands that constructing a treatment facility on-site would '.
require a substantial amount of time and effort. Therefore, the Agency is granting a two-year
national capacity variance for these wastes. .
The^cpmmenter suggested that EPA state that additional of waste codes to a no-migration
petition should be considered a non-substantive'revision: This issue is outside the scope of the
Phase IV rules. The commenter should contact the USEPA Office of Water.
463
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DCN - PH4P041 .
COMMENTER Sterling
RESPONDER PMC
'SUBJECT EQUV .
SUBJNUM 041 ' . ' -
COMMENT '. ' ' -..- ; , :
- In general, Sterling supports EPA's efforts to craft a set of
regulations that both respond to the court's 'decision in Chemical
Waste Management v. EPA, (" Chem Waste") and that seek
the accommodation between the Clean Water Act and RCRA that the
statute demands. ' .
While Sterling continues to believe that the Chem Waste court's
: reading of-RCRA is labored at best, and far exceeds the statutory
mandate, we believe that EPA has developed a framework, which, with
important clarifications and minor revisions, responds to this
opinion and attempts to provide reasonable accommodation between
othe two regulatory schemes. Sterling endorses the general comments
being submitted today by the Chemical Manufacturers Association
("CMA")on both the treatment equivalency issues related to Clean
Water Act ("C WA") impoundments and, on the underground injection
well issues. - ~ .
In requiring EPA to address the treatment of hazardous :
constituents of non-hazardous wastes, the Chem Waste court misreads
RCRA and imposes an undue burden on the regulated community, with
no corresponding environmental benefit. In fact, EPA.has
acknowledged that it is compelled to address the treatment
equivalency issue at this time, although if left to its own
devices, it would probably have higher environmental priorities. 60
Fed. Reg. 43,656 colt 2 (1995). The Chem Waste court was wrong and
EPA's proposal to impose any requirements beyond Option One would
be equally wrong.
Sterling manages decharacterized wastewater in a land-based
surface impoundment system that discharges to a POTW. Sterling has
invested $36,000,000.00 in the past six years to upgrade
its treatment system to meet the requirements of three significant
rulemakings that affected its wastewater management: the Organic
Chemicals, Plastics, and Synthetic Fibers or OCPSF pretreatment
standards; the NESHAP for benzene; and the Toxicity Characteristic
rule, or TC. We are also subject to the Hazardous Organic NESHAP,
or HON rule, and are facing pending MACT standards. In addition, we
are a permitted TSDF and thus are subject to Corrective
Action requirements. Sterling, therefore, supports EPA's proposal
464
-------
to assume that impoundments located at permitted TSDFs are subject
'to sufficient regulatory control, and thus achieve : _
equivalent treatment for purposes of the Chem Waste court's ruling,
and therefore should not be subject to further regulation under the . .
. proposed Phase IV rulesi If Sterling were otherwise subject to , ,
the phase I-V proposal, however, Option One is the only proposed . :- '
option that would make any sense at the Sterling facility given the
existing, intense regulation of the wastewater in question and
the system .that manages it. Sterling's support of Option One is. ,""
qualified, however, unless EPA corrects a fatal flaw in the
underlying scheme proposed in the Phase'III rule.
While Sterling supports EPA's proposal in Phase III to defer to
the Clean Water Act standards for equivalent treatment .
determinations, EPA has imposed a treatment standard for total. .
cyamde(TCN) in wastewaters managed in CWA systems that cannot be
met by the best demonstrated available technology. Sterling
operates a treatment system for its sodium cyanide wastestream
that includes both thermal decomposition'and alkaline '-,,,'*
chlorination-yet, the TCN limit of 1.2 ppm promulgated as a
universal treatment standard ("UTS") for TCN in DO 18 wastewaters
cannot be achieved on a consistent basis. Sterling and DuPont ;
(DuPont owns, Sterling operates the unit in question) submitted a , .
complete treatability data set to EPA in the Phase III context,
which we incorporate here by reference. While we raised this issue
with the Agency in the Phase III context, we mention it again in
our Phase IV comments because Option One essentially defers to the
Phase III solution for determining equivalent treatment of
decharacterized wastewaters managed in CWA systems. Unless EPA's
proposal in Phase III is legally sound, its reliance on Phase III .
in this Phase IV rulemaking as the Option One solution will be '
legally flawed. '
RESPONSE ' " . '.':.- ; '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
465
-------
a result,.on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule willnot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
,43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do hot
apply to TC metal wastes if the characteristic is removed and the,wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. '' .-.',.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to '
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . '
466
-------
DCN PH4P042- .'.'>,
COMMENTER Monsanto
RESPONDER PMC. .
SUBJECT. EQUV
SUBJNUM 042 , '.';,, .
COMMENT , - .
The Agency clearly.should opt to select Option 1, electing no to
promulgate LDR-based standards related to possible releases from
impoundment based systems. The Agency's own.analysis clearly
demonstrates that there: is, little risk associated with these
potential releases, but that the Agency feels it "is required to
addressed these issues at this time although there may have
been higher environmental priorities if EPA had sole discretion to
order its agenda." (60 FR43656, 8/22.95)' Further, the comments
submitted by CMA demonstrate that the Agency's analysis of risk
v grossly overstates any actual risk that may be caused by these
.' .releases. ' '',.". ' - '"'.'
Even if there had been a finding of risk, it is clear that such
risk would be associated with possible pathways that are rlilly ,
subject to the authorities that the Agency has from other
statutory sources. \
Air emissions are subject to regulation under the Clear Air Act
and at least five (5) other rulemakings are completed or underway
to address impoundments under CAA Section 112.
Groundwater. protection can addressed under Subtitle D of RCRA and
in fact many states have moved .to do this, A CMA study has
demonstrated that all 50 states have regulatory programs in place
for non-hazardous wastes. In the 25 states which account for 83.% ,
of the wastewaters managed in surface impoundments: 1) all require
monitoring to protect surface waters, 2) 19 have liner
requirements, and 3) 19 require groundwater monitoring. While
-: some will argue that these rules need to be strengthened, clearly
that is the question that should be addressed via state programs
. and not the question of whether we should stretch the federal
hazardous waste treatment rules to regulate non-hazardous
. impoundments. EPA has the authority under RCRA SUBTITLE D to
assist the states through the development of guidelines for the ,
regulation of non-hazardous waste management. EPA and the states
have in fact recently established a multi-stakeholder dialogue
group to that end, including EPA, state, environmental
group, generator industry and disposal industry representatives.
Section 1006(b) of-RCRA requires the EPA to "avoid duplication to
the maximum extent practicable" with the provisions of other
467
-------
statutes. We urge the Agency to do that, selecting Option I in ' . ,
this rulemaking. . .
. Finally, it must be noted that the Phase IV rulemakihg, as *
directed at potential releases from surface impoundments, is riot
driven by any. mandate of the underlying court decision ^ " ;
(Chemical Waste Management v. EPAi 976 F. 2d 2,1992). EPA itself
has noted that "The court did not explicitly state that its ', -
equivalencetest, or any other part of the opinion, necessitated
control of all hazardous constituent releases from surface
impoundments." The court did address,the need to seek treatment
that is equivalent to usual RCRA treatment, but "The focus here is
on the wastewaters being treated, and the amount of hazardous
constituents removed form those wastewaters, not other types of ..'-.'
wastes (like sludges) or other types of releases." (60 FR ,
. 43656,8/22/95).
Again,'we urge the Agency to adopt Option 1 of its August 22
proposal. Regulations of possible releases to air and groundwater
under Land Disposal authorities is not warranted,-is not driven
by the court decision, and is more properly addressed under other
statutes. . / . ' , .
RESPONSE ' , ,. '/'"'
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR.43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the '
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe ,
Drinking Water Act. i , . .
\
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks.are in fact found that would warrant such" .
regulation. ' . - .
468
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469
-------
DCN . PH4P044 ' " ' , . .. ' ' '
COMMENTER American Forest & Paper Association
RESPONDER HM . .. ,
SUBJECT EQUV ( ' . .
COMMENT Sludges comprise a new treatability group and are not,
therefore, covered by the LDRs unless they exhibit a hazardous . /
characteristic. ,
RESPONSE ' ,' ( .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiviry,
reactivity, or toxiciiy when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR .
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
prinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may ,
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , . ,
470.
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DCN PH4P044' " _ ' . '
COMMENTER American'Forest.& Paper Association .
RESPONDER HM'
SUBJECT EQUV . ' . - - .
COMMENT Sludges Generated In CWA Treatment Impoundments Comprise A New
Treatability Group And Are Not Therefore Covered By The LDRs - _ . .
Unless The Sludges Are-Thernselves A Characteristic Hazardous
Waste. As part of the final Third-Third Rule, EPA developed
specific "decision rules" (hereinafter, "treatability group . "'
rules"), which make absolutely clear that non-hazardous sludge
. generated during treatment of characteristic wastewater is not
"prohibited waste" arid not subject to LDR regulations. See 55
Fed. Reg. 22520,22661-662 (June 1,1990). Nobody challenged ;
the Agency's conclusion in the CWM litigation. In its Phase IV'
, proposal, EPA aptly observes that the CWM court did not address' ,
let alone remand or vacate the treatability group rules,
which, in EPA's own words, mandate that "wastewater treatment
sludges not exhibiting a characteristic are not prohibited .
wastes, notwithstanding that they may derive from prohibited
wastewaters." 60 Fed. Reg. 43654,43656, coi.3 (Aug. 22,1995).
Because the CWM litigation left the treatability group rules
'intact, EPA must follow them and refrain from imposing special
LDR regulations on non-hazardous sludge. Treatability, Group
! Rules. EPA developed the treatability group rules in an effort
to spell out exactly how LDR regulations apply to wastestreams
that change physical form (i.e. change "treatability group")
during treatment. The Agency made a special effort to clarify
how the regulations apply and don't apply to circumstances
where suspended solids settle out of waste water to form sludge.
As EPA put it, The question of whether a given waste is going to
prohibited land disposal is complicated by the fact that wastes
may change treatability groups after undergoing treatment For
example, treatment of a wastewater often generates a
non-wastewater sludge as well as a treated wastewater. 55 Fed. ,
Reg. at 22661", col. 1 (June 1,1990). After careful .
consideration, EPA concluded that LDR regulations do not apply _
to non-hazardous material that results from the treatment of '
characteristic wastes unless such non-hazardous material is in
the same treatability group as the characteristic waste. 55 . . '
Fed. Reg. at 22661, col. 3. EPA stated that "this approach is .
necessary to ensure that [LDR treatment levels] are met by
treatment and not by dilution." 55 Fed. Reg. at 22661-62. EPA
specifically determined that LDR regulations do not apply to
471
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- " non-hazardous sludge generated from the treatment of wastewater
that exhibits a hazardous characteristic. EPA used the
following example to illustrate how the rule works: Wastewater J
is EP toxic for lead.. It is treated in a tank and generates a . .
sludge K, that is non-hazardous. The treated wastewater L,
" which no longer exhibits a characteristic, is then sent to a
surface impoundment for further treatment, after which it is
discharged under an NPDES permit. The sludge is sent to a
landfill. The sludge K is not a restricted hazardous waste,
notwithstanding that it derives'from treatment of a
characteristic hazardous waste. 'This is because it is a new .
treatability group which is not hazardous at the point of .
generation. The status of wastewatersJ and L is determined by -
the special rules for characteristic wastes managed in CWA
systems; therefore, they are prohibited wastes but are not
subject to a dilution prohibition. Since wastewater L meets the ,
treatment standard when it is land disposed, the disposal is . - . ,
legal. 55 Fed. Reg", at 22662, col. 1 (emphasis added).
Conclusion. The treatability group rules clearly place
non-hazardous sludge beyond the scope of the Phase IV
rulemaking. Moreover, the rules shed light on why the CWM Court
did not require EPA to develop special LDR regulations for ,
, sludge. The D.C. Circuit carefully read the Third-Third Rule,
including EPA' s explicit discussion of its treatability group
concept, and concluded that LDR regulations don't apply to
sludge. It therefore held that RCRA equivalency could be ..
achieved through the treatment of wastewater only. In EPA's own
words, [The CWM Court did not say] that hazardous constituents
in deposited sludges must be treated. The court in fact did not .
speak to the principle stated by EPA in the Third Third rule
that generation of a new treatability group is considered to be
_ a new pointof generation and thus anewpoint for determining' '
whether a waste is prohibited. 55 FR at 22661-662. Under this
principle, unchallenged in the litigation, wastewater treatment
sludges not exhibiting a characteristic are not prohibited
' wastes, notwithstanding that they may derive from prohibited
wastewaters. 60 Fed. Reg. at 43656, col. 3 (Aug. 22,1995). To
comply with the CWM opinion and its own treatability group
rules, EPA must therefore exclude sludge from the Phase IV rule.
RESPONSE , ,v
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying Hazardous constituents in decharacterized wastes were.not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
472
-------
regulated by the Clean Water Act or Safe Drinking Water Act '(60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the'Land Disposal Program Flexibility Act of 1996, which provides that the1
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. '.''.'.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. -'"'."-
473
-------
DCN ' PH4P044 , ; . - .
COMMENTER American Forest & Paper Association .
RESPONDER SS . .
SUBJECT EQUV .
COMMENT ' For the reasons summarized below and discussed in detail '
throughout these comments, AF&PA's agrees that Option 3 should ' . -
.be rejected and urges that EPA adopt Option 1. End-dfpipe
equivalence is all that the Chemical Waste Management decision ' " >
.' - or RCRA requires. EPA need not, therefore, consider controls '
for leaks, sludges, or air emissions from'Clean Water Act
surface impoundments mat manage decharacterized corrosive
waste. . " ' . . i - '.
RESPONSE ' ' , ' . - v , _ ' ' »'
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxitity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered rionhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61FR 15660).
Today's Phase IV final rule will not promulgate provisions for. managing leaks, sludges, and air
emissions from surface'impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . : .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. - , . . ,
474
-------
; PH4P044.. ' t
.COMMENTER American Forest & Paper Association
RESPONDER SS ...
SUBJECT EQUV . . . -
COMMENT , The proponent of Options 2 and 3 has not come forward with
; .any factual basis supporting either alternative. EPA must,
therefore, reject both Options. . If EPA nonetheless decides .
to examine Phase IV controls, it correctly concluded that "bare / ' ' ;
releases" do not trigger LDR requirements. . EPA should . .
tailor its Phase IV rule decision to each industry studied in -
theRIA. ' - ..'.'.'.
RESPONSE ";. ' , ?. ' '. "
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacierized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems ;
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous! As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
,43655^*3677)). Furthermore, the treatment standards for T.C metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ' - .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
475
-------
DCN PH4P.044
,COMMENTER American Forest & Paper Association . *
RESPONDER, SS
, SUBJECT EQUV . .
COMMENT EPA has twice postponed the effective date of the Subpart
. CC rules so it can reassess fiindamental elements, of the rule, ' - '
its underlying test method, risk assessment, and applicability ,
principles. EPA'should not, therefore, base any part of the . '
Phase IV risk assessment or control options on Subpart CC until
EPA completes this review. ,
- RESPONSE , . : ;
In the August 22, 1995. Phase IV proposal; EPA discussed three options for ensuring that -
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, oMoxicity when generated but are no longer characteristic); On March 16, 1996, the
President signed the Land Disppsal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently .treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
N Drinking Water Act. ,. , ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
476
-------
DCN . PH4P044' .' ' ' . '.
COMMENTER American Forest & Paper Association
RESPONDER SS . - " - . ' .
SUBJECT EQUV . _
COMMENT EPA has correctly rejected Option 3. - , . ' ' _-
RESPONSE' ' " ' ';"'.
In the August 22, 1995 Phase IV proposal, EPA discussed three, options for ensuring that-
underlying hazardous constituents in decharacte'rized wastes were not released to the' f
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Wate"r Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are "no longer characteristic). 'On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the .
wastes in question are ho longer prohibited from land.disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment.standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR'
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells* the Safe
Drinking Water Act. , v *
', , i ' s . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996; may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
477 -
-------
DCN PH4P044 ' .
COMMENTER American Forest & Paper Association . .
RESPONDER SS- , . . , . ' -
SUBJECT EQUV ' . '
COMMENT The 1% flow limit in the proposed de minimis exception for
decharacterized wastewater precludes significant relief to
industries that practice aggressive water conservation. EPA
should exclude paper industry pre-biological sludge from Option . ,; .
2 controls, because the RIA shows no significant risk from this , .
source even at DAF=6. . EPA correctly avoids regulatory
duplication by deferring Option 2 controls to other federal , ,
programs, such as the paper industry MACT rules. But EPA should
defer completely to the MACT rules, even if they, have a .. .
. different trigger level than the Subpart CC rules, because the
MACT rules will reduce VOC concentrations in paper industry
wastewater by 98% and will essentially obviate methanol and .
chloroform -the principal paper industry wastewater VOCs - as
constituents of concern. . ,'.'
RESPONSE
, In.the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
-wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
. Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)), Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ' .,.:
f
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to '
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would.warrant such
regulation.
478
-------
DCN . PH4P044 ' , , . ./
COMMENTER American Forest & Paper Association -'.,' ' ;
RESPONDER SS .
SUBJECT EQUV - . ,
COMMENT Neither RCRA Nor The Chemical Waste Management Decision Require
EPA To Impose Land Disposal Restriction ("LDR") Requirements On
. CWA Surface Impoundments In Addition To The End-Of-Pipe :
,', Treatment Standards Already Proposed In The Phase III Rule. In ,
Chemical Waste Management v. EPA, 976 F.2d 2'(D.C,Cir. 1992),
. cert, denied 113 S.Ct. 1961 (1992) ("CWM"), the U.S.'Court of
Appeals for the District of Columbia remanded portions of the, . .
. . Agency's Third Third Rule mat established a "deactivation"
treatment standard for ignitable, corrosive, and reactive
("ICR") wastes. The Court did so because deactivation could be .
accomplished by dilution, which although a permissible treatment
. . .method for certain ICR wastes, did not necessarily address
underlying hazardous constituents ("UHCs") that may be present
in decharacterized wastestreams. Id. at 1.6-18. The D.C.
' Circuit found that deactivation of corrosive wastes by dilution
was a legitimate treatment method, but it could be used as the
exclusive treatment method only if any UHCs present in the
characteristic wastes are treated to the same extent as they
would be in'non-CWA treatment facilities. Significantly, the.
Court recognized that "RCRA requires some accommodation with
[the] Clean Water Act" arid, to that end, authorized "minimized
- threat" treatment to occur in land-based surface impoundments. .
Id. at 20,23-24. All the Court required is that "what leaves a
CWA treatment facility can be no more toxic than if the waste
streams were individually treated pursuant to the RCRA treatment .
standards." Id. at 20. EPA refers to this requirement as the
"equivalency determination." The Agency has addressed what it
calls end-of-pipe-equivalence in its March 2,1995 proposed
Phase Ilf Rules. In general, AF&PA endorsed the Agency's
general Phase III approach, which equated CWA effluent
limitations with minimized threat levels. But AF&P A told the
Agency that end-of-pipe-equivalence was all that the CWM C ourt
required. Although EPA candidly disclosed in the preamble that
it had higher environmental priorities, it nonetheless issued
its Phase IV proposals because it was compelled to do so by a
settlement agreement with some of the CWM litigants; 60 Fed.
Reg. 43656. That settlement agreement requires only that EPA
describe several options beyond Phase Ill-equivalency, but does
, , not require that the Agency recommend, endorse, or adopt any of
479
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-them. Id. AF&PA remains of the view that the CWM opinion d.oes
not require EPA to impose any LDR requirements beyond those.
proposed in the Phase III Rules. If the Court intended to
require CWA surface impoundments that handle decharacterized ;_
wastewater (hereinafter, "CWASIs") to do more than demonstrate .
end-of-pipe-equivalence, it would have spelled out such
additional requirements in its opinion. Instead, it clearly and
/simply requires a demonstration of end-of-pipe-equivalence and
. not hing more. The Court rendered a highly technical opinion
that resolved litigation among well-financed, motivated parties
with significant incentives to direct the Court's attention to
all relevant issues. In the ten months between the first
petition for review and entry of the Court's decision, the Court .
reviewed briefs from environmental groups, industry groups, and
EPA that thoroughly addressed the consequences of managing
decharacterized wastewater in CWASIs, including sludge
precipitation and potential leakage and air emissions. Based on
the comprehensive information before it, the Court made an
informed decision to require CWASIs to demonstrate
end-of-pipe-equivalence and declined to spell out any other LDR
requirements they must meet. EPA is correct when it observed in
the Phase IV preamble that "the court did not explicitly state '
that its equivalence test, or any other part of the opinion,
necessitated control of all hazardous constituent releases from
surface impoundments." 60 Fed. Reg. 43656. Given the high
stakes and technical natureof the litigation, it strains
credulity, and presumes an uncharacteristic degree of sloppiness
on behalf of the Court, to assert that the D.C. Circuit intended
to impose LDR requirements it did not clearly articulate in its
opinion. The CWM Court Held That End-of-Pipe Treatment Standards
, For CWASIs Satisfy RCRA LDR Requirements. The CWM Court held
that allowing placement of decharacterized wastewater in CWASIs
represents a reasonable accommodation of CWA and RCRA
objectives, and therefore satisfies RCRA LDR requirements, as
long as material exiting CWASIs is treated to the same extent
required by RCRA. See 976 F.2d 2,23. The Court fully
appreciated that decharacterized wastewater is held temporarily
in uhlined CWASIs and eventually exits or "discharges" into
navigable waters of the United States or publicly owned
treatment works ("POTW"). Id. at 20,24. The Court also
recognized that levels of pollutants in decharacterized
wastewater passing the exit point, or "end-of-the-pipe," are
regulated by NPDES permits. Id. at 20. With full knowledge of ;
480
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how C'WA systems operate,'the Court required unlined CWASIs to
demonstrate end-of-pipe-equivalence to comply with RCRA
nothing more. The Court articulated its position at two points . v
in its opinion, in each case making clear that end-of-pipe
treatment standards ^satisfy statutory LDR'requirements: .
[Dechairacterized] wastes may. be placed in ... impoundments
that are part of an integrated CWA treatment train. However, in
order for true "accommodation" to be accomplished, we find that
RCRA treatment requirements cannot be ignored merely because CWA
[sic] is implicated .... Thus, we hold that, whenever wastes
are put in CWA surface impoundments before.they have been \ ,
treated pursuant to RCRA to reduce the toxicity of all hazardous
constituents, these wastes must be so treated before exiting the
CWA treatment facilities. In other words, CWA facilities must . .
remove the characteristic and decrease the toxicity of the
waste's hazardous constituents to the same degree that treatment
outside a CWA system would. I'd! at 22 (emphasis added).
[D]echaracterized waste [containing hazardous constituents] may . -.
be placed in a surface impoundment if and only if the resulting
CWA treatment fully complies with § 3004(m)(l). In other words,
the material that comes out of CWA treatment facilities that
employ surface impoundments must remove the hazardous
constituents to the same extent that any other treatment
facility that complies with RCRA does. Id. at 23 (emphasis
added). At no other point in the opinion does the Court specify
LDR treatment standards that CWASIs must satisfy to comply with
RCRA (save volatilization of VOCs when ignitable wastes are
diluted). Therefore, no additional LDR standards are required. ,
The CWM Court Did Not Require LDR Regulations Addressing The.
Sludge That Forms In CWASIs. The Court made an informed decision
not to require EPA to promulgate special LDR regulations
addressing sludge that is formed in CWASIs. Instead, the Court .
held that sludge generated from the treatment of decharacterized
wastewater in CWASIs is covered by RCRA Subtitle C only if the
sludge itself is a hazardous waste. Id. at 24, note 10. Briefs
submitted by the litigants in the CWM proceeding made the Court
well aware mat treating decharacterized wastewater in CWASIs
results in the precipitation of sludge. See NRDC Petitioners
Brief at 64 (Metal-bearing wastewater can evaporate to
reconcentrate toxic metals.); Industry Intervenors Brief at 29 . ,,
(Treatment in CWASIs removes metals by precipitation.); Industry
Intervenors Brief at 31 (Precipitation of metals into sludge
occurs in surface impoundments.); EPA Response Brief at 69
481
-------
(Treatment of wastewater in CWASIs normally results in the
precipitation of metal hydroxide sludges.); EPA Response Brief
at 91 (Low TOC igriitable wastes managed in wastewater treatment
systems generate non-hazardous sludges.)- In support of its :
position that RCRA's accommodation provision (§ 1006(b)(l))
allows placement of decharacterized wastewater in CWASIs, EPA
argued that its Subtitle C regulations would satisfy the RCRA
objective of protecting groundwater from toxic constituents of
sludge: NRDC Petitioners argue... RCRA's groundwater
protection standard is not satisfied by C WA regulation of
discharges to surface water. NRDC Br. at 64-68. It is true that
CWA rules do not explicitly protect groundwater; this is not to
say, however, that EPA is precluded under RCRA from balancing
CWA and RCRA objectives in integrating the RCRA dilution
prohibition and the CWA rules. First, if a regulated hazardous
waste e.g., a toxic sludge precipitates out from
non-hazardous wastewaters disposed in the surface impoundment,
then that unit becomes subject to subtitle C regulation. 55
Fed. Reg. 39,409,39,410/3 (Sept. 27, 1990). NRDC Petitioners'
assertion that such hazardous sludges could be generated in
these impoundments and escape subtitle C is thus simply
incorrect Compare NRDC Br. at 64. EPA Response Brief at 68-69.
In its discussion of accommodation of CWA and RCRA pursuant to
RCRA § 1006(b)( 1), the Court wholeheartedly embraced EPA's
position. It held that allowing placement of decharacterized
waste in CWASIs is a reasonable accommodation, in part, because .
RCRA Subtitle C will protect the environment from threats posed
by hazardous sludge that may precipitate during treatment. See
976 F.2d at 24, note 10. In the Court's words, [A]s the EPA
concedes in its brief, if the stream entering the surface
impoundment is not decharacterized, then RCRA requires the
impoundment to meet subtitle C requirements. Similarly, any
hazardous precipitate or other hazardous material generated
during CWA treatment must be managed in accord with subtitle C.
Id. (emphasis added). The text of the opinion, read in
conjunction with the briefs submitted to the Court, therefore
shows that the Court carefully considered the issue of sludge
precipitation and decided that regulation of sludge is required
only if it is a listed or characteristic hazardous waste. If
the Court wanted to impose LDR requirements for non-hazardous
sludge, it certainly would have made its intentions clear. The
CWM Court Did Not Require LDR Regulations Addressing Leakage
From CWASIs. The CWM Court focused its analysis exclusively on
482
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'DCN PH4P044 ... '' .
COMMENTER American Forest & Paper Association
RESPONDER SS
SUBJECT EQUV .',-,. . ' ,
COMMENT the Proponent Of Options 2 And 3 Has Not Come Forward With Any
Factual Basis Supporting Either Alternative. Consequently The
Agency Should Reject Both Options. The Agency's preamble
discussion of Options 2 and 3 is premised on a settlement
agreement between the Agency and several CWM litigants ("NRDC
Petitioners") in which the Agency agreed "to describe in detail
..: (but not necessarily recommend or endorse)... option[s]
... limiting release[s] from surface impoundments used in CWA
; treatment systems ... due to volatilization or leakage, and
treatment standards ... [for] impoundment sludges." 60 Fed.
Reg. 43656. But EPA states plainly and candidly in the preamble
that, creating a regulatory system to address such releases is
low among the Agency's priorities when measured against the
- appropriate standard of whether'new rules are necessary to.
protect human health and the environment". Id. The absence of a
judicial mandate to engage in Option 2 or Option 3 rulemaking,
the Agency's correct assessment that it should devote its
. resources to higher priority matters, and the failure of the
NRDC Petitioners to support their position with data in the
record, which we discuss below, together compel EPA to go no
further than end-of-pipe- equivalence. Because the CWM Court did
not compel the Agency to address leaks, sludges, or air
emissions (save those from ignitable wastes) resulting from CWA
surface impoundment treatment, the Agency may proceed, if at
all, only if the facts and policy considerations warrant
creating a substantial new regulatory program. Because it is
under no judicial mandate to adopt any such new rules, EPA ought
to consider the proponents of such new rules to be petitioners
for rulemaking under 40 C.F.R. Part 260, Subpart C. That ' . -
Subpart, which addresses rulemaking petitions, places on the
petitioner the burden of coming forward with "the heed and
. justification for the proposed action, including any supporting <
tests, studies, or other information." 40 C.F.R. § . ,
'260.20(bX4). Other portions of thisrule address specific types
of rulemaking petitions and make clear that the burden of proof
to support the petition is on the petitioner. For example, .
petitions for equivalent test procedures "must demonstrate to ,
the satisfaction of the Administrator that the proposed method :
485
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is equal to or superior to ..." the established method. Id.
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high volume wastewater that typically passes through CWASIs into
navigable waters and POTWs. See 976 F.2d af24. With respect
to such wastewater the Court determined, as discussed above,
that end-of-pipe-equivalence satisfies RCRA LDR requirements.
The Court did not assess the issue of potential leakage from
CWASIs, let alone mandate special LDR requirements to address
it. Briefs submitted by the litigants in the CWM proceeding made
the Court well aware that the CWASIs had the potential to leak.
The NRDC Petitioners continually referred to CWASIs as, "unlined"
surface impoundments, a term which the Court used to discuss
CWASIs in its opinion. Compare NRDC Petitioners Brief at 26, 59,
60 with 976 F.2d at 20. Obviously, the term "unlined" implies
the possibility that CWASIs may leak. Likewise, the Court '
accepted at face value assertions made by EPA and Industry '
Intervenors that imposing LDR rules on CWASIs would require
"major revamping" of CWA treatment systems, in part because
CWASIs cannot qualify for "no-migration variances" that would
allow them to receive hazardous waste. Compare Industry
Intervenors Brief at 33-3 5 and EPA Response Brief at 64-67 with
,976F.2dat21. EPA went so far as.to assert that sludges -,
produced during treatment in CWASIs "typically leach low,
"relatively minimal levels of metals" - a position not
inconsistent with the NRDC Petitioners claim that toxic metals .
can leach from CWA surface impoundments into groundwater.
Compare EPA Response Brief at 69. with NRDC Petitioners Brief at
64-68. After a full opportunity to review assertions concerning
leakage presented by the litigants, the Court decided to say
nothing about it. Perhaps the Court concluded that RCRA's
accommodation provision (§ 1006(b)(l)) gave EPA discretion to
decline to address leakage in light of the massive disruption
and minor environmental benefits that would result. Whatever
the Court's reasoning, the fact that it decided not to require
LDR rules addressing leakage is unmistakable. Accordingly, EPA
cannot invoke the CWM opinion to justify Phase IV regulations.
The Court Did Not Assess The Application Of LDR Treatment
Standards To Air Emissions From Materiai.Placed In CWASIs. EPA
can find no support for across-the-board Phase IV air emission
rules in the CWM opinion for the simple reason that, with one
limited exception, the opinion did not discuss controlling air
emissions from materials placed in CWASIs. The Court confined
its discussion of air emissions to the portion of its holding
that vacated EPA's deactivation standard for ignitable wastes on
the grounds ttiat diluting ignitable wastes emits high levels of
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VOCs. See 976 F.2d at 16-17. The Court never addressed whether
LDR treatment requirements must cover air emissions from
decharacterized corrosive or reactive waste managed in a CWASI. , .
***** As.this analysis of the CWM decision shows, the D.C. ''.''-
Circuit confined its pronouncements about RCRA equivalency to
wastewaters. EPA recognizes the Court's narrow focus when it
said in the preamble "the focus here is on the wastewaters being ,
.treated, and the amount of hazardous constituents removed from
those wastewaters, not other types of wastes (like sludges) or
other types of releases." 60 Fed. Reg. 43656. Thus, EPA's
Option 1 is the correct course; the Agency need not promulgate " ;
LDR requirements beyond those proposed in the Phase III rules,
which meet both the Court's conclusion that "RCRA requires some . :
accommodation with [the] Clean Water Act" and also ensure that
"what leaves a CWA treatment facility can be no more toxic than
if the waste streams were individually treated pursuant to the .
RCRA treatment standards." CWM, 976 F.2d at 20. ~ '
RESPONSE / ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity;
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered honhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently .treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . _..,<
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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at 260.21 (a). Petitioners who want to add additional materials
to the Universal Waste Rule or obtain variances from .
classification as a solid waste, must discharge similar burdens.
Id. at §§ 260:23,260.30. Delisting petitions are the -\ -. -.
"flip-side" of Options 2 and 3, because delisted wastes are not , ' ' -
covered by the LDRs. Delisting petitioners "must demonstrate to . '
: , the satisfaction of the Administrator that the waste produced
'. does not meet any of [certain] criteria " Id. at §
260.22. Measured against these standards, the NRDC Petitioners : .
have not come forward with a credible, factual basis for .
creating a broad new LDR regime, let alone carried their burden
of proof. The only support offered by NRDC Petitioners is a ' " '
March 4,1993 rulemaking comment submitted by the Hazardous
Waste Treatment Council, now the Environmental Technology
Council ("ETC"). That document consists largely of legal '
arguments (which we refute above) and contains not one bit of .
data, not one bit of research to support the proposition that
releases from CWA surface impoundment treatment present any risk .
to human health or-the environment, let alone risks that would
warrant discretionary rulemaking by the Agency to create what
amounts to a "mini-Subtitle C" regulatory program for ;
non-hazardous Subtitle D surface impoundments. The Agency would , ~ .
surely reject a request for such sweeping.new. rules had it been
' presented as a petition for rulemaking under § 260.20, because , ' - ' .
it lacks any factual foundation. AF&PA believes that ETC's
, position ought to be rejected in the present context as well. .
Neither EPA nor the manufacturing community has the resources to
address low priority, low risk issues supported only by mere '
assertions of a litigant, which would result in rules that do . ' ' ,
not advance in any significant way protection of human health
and the environment. Thus, EPA should reject Options 2 and 3.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
'wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or tbxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks,.sludges, and air
487
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emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed arid the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . , . v '
f - * . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such ,
regulation.
488
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DGN . - PH4P044 ~
COMMENTER American Forest & Paper Association ,
RESPONDER SS
SUBJECT EQUV , .
COMMENT EPA Correctly Decided That "Bare Releases" Do Not Trigger LDR
Requirements. AF&PA shows above that no Phase IV rules are
required by the CWM decision. But if EPA believes that it must
,:, under the settlement agreement at least examine whether it
should pursue LDR requirements beyond those proposed in the
Phase III rule, then a risk-based approach makes sense. EPA has
correctly observed that the CWM Court "intended to allow
continued use of treatment surface impoundments to treat
-: decharacterized wastes, provided the extent of treatment is
equivalent to usual RCRA treatment." 60 Fed. Reg. 43656. EPA
addressed this requirement, which it named "end-of-pipe-
equivalence," in the Phase III Rules. In the Phase IV preamble, . -
EPA confronts the issue of whether the judicially decreed
. accommodation of CWA treatment facilities, which is embodied in
EPA's Phase III Rules, is somehow undercut by the assertion that
underlying hazardous constituents leak from CWA surface
impoundments, partition to sludges generated in those <
impoundments, or volatilize during CWA treatment. (We say
"assertions" because the proponents of additional LDR regulation
have not submitted any data supporting these claims.) The
question is whether if such releases occur in fact, is that ,
alone sufficient to invalidate the Agency's Phase III ,
determination that CWA treatment comprises RCRA equivalent
treatment? EPA is correct when it concludes that "something more
than the bare release of a hazardous constituent is needed to
trigger this invalidation." 60 Fed. Reg. 43656. First, EPA's
conclusion recognizes that "no treatment unit is absolutely ,.' -
release-free (there are certainly releases of hazardous
constituents from combustion units, for example) ...." 60
Fed. Reg. 43657: Second, the Agency correctly analyzed the CWM
decision when it observed that "the Court did not explicitly
state that its equivalence test, or any other part of the
opinion, necessitated control of all hazardous constituent
releases from surface impoundments." 60»Fed. Reg. 43656. EPA
concludes based on these observations that EPA's focus should,
not be confined to whether a bare release has occurred because
"the more fruitful inquiry is the extent of the release." 60
Fed. Reg. 43657. AF&PA agrees that "under this reading [of the
CWM decision], the Agency could evaluate whether the risk from
489
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the various types of releases is great enough to warrant -
control." Id: AF&PA also supports EPA's observation that a ,
finding that there is insufficient risk would mean that the
impoundment is not engaging in a type of cross-media transfer of :
untreated hazardous constituents that invalidates its treatment '
function, and therefore that decharacterized wastes can be
- treated in the impoundment to effect the necessary/ accommodation
between RCRA and the CWA. Id. Any other reading of the CWM .
decision would result in complete disruption of long-established
CWA treatment processes, would surely disrupt existing EPA '
Office of Water regulatory programs, and would undercut
' in-process integrated rulemaking activities for the pulp and . '
1 paper industry as well as others. Such a "draconian reading,"
as the Agency put it in the preamble, would also result in
treatment for its own sake rather than to affect protection of
human health and the environment, contrary to the teaching of
' Hazardous Waste Treatment Council v. EPA, 30 ERC 1233 at1 1239
(1 989) ("HWTC III"). In that ease the D.C. Circuit observed
that EPA is [not] free, under § 3 004(m), to require generators
to treat their wastes beyond the point at which there is no
'threat' to human health or the environment. That Congress's
concern in adopting § 3004(m) was with health and the . '
environment would necessarily make it unreasonable for EPA to
promulgate treatment standards wholly without regard to whether .
there might be a threat to man or nature. HWTC III at 1239. . . '
The D.C. Circuit confirmed this conclusion in CWM where it .
stated that, "treatment might be unreasonable . . . if the EPA
required treatment of waste that 'posed no threat to human
. health or the environment."' CWM at 14. Thus, EPA is correct ' , '
when it concluded that a bare release is not enough to trigger
LDR requirements. If a release does riot pose a significant
threat to. human health' and the environment then no additional
LDR requirements are necessary. . . .. -
RESPONSE
In the August 22, 1995 Phase FV proposal; EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1 996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 1 5660).
490
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Today's Phase IV final rule will npt promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)): Furthermore, the treatment standards for TC metal wastes in'today's rule do not
-apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a-unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' . , . ' *
However, the Land Disposal Flexibility Act does mandate EPA,to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, '1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.' - - ,' -.. , : . ' .
491
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DCN, . PH4P044. : ' '
COMMENTER American Forest & Paper Association
RESPONDER SS ' " - ..
SUBJECT EQUV , .'
COMMENT EPA Has Twice Delayed The Effective Date Of Subpart CC So That
It Can Reassess Fundamental Elements Of That Rule Including The
Underlying Test Method. EPA Should Not, Therefore, Base The .
Phase IV Air Emission Risk Assessment Or Control Measures On The
Subpart GC Rules.. EPA's Phase IV risk assessment concerning air .....
emissions, "relied on existing analyses conducted to support the '
RCRA Subpart CC regulation of air emissions from hazardous ,
wastewater treatment units." RIA at 2-51. These include,
presumably, the regulatory impact analysis for Subpart CC and-
the Background Information Document ("BID"). But the Subpart CC
rules are presently undergoing both EPA administrative review *
and judicial review in large part because of flaws in EPA's risk ,
assessment and BID which underlie the Subpart CC 100 ppmw
' regulatory threshold, Test Method 25D, and other issues
affecting the applicability of the Subpart CC rules. Because of
these outstanding issues, the Agency has twice postponed the
effective date of the Subpart CC rules. 60 Fed. Reg. 26828 (May
' 19,1995), 60 Fed, Reg. 56952 (Nov. 13,1995). In addition, EPA
published on August 14,1995 a proposed rule and notice of data
availability concerning changes to fundamental aspects of the
Subpart CC rule including waste determination procedures and the
applicability of the rule to units.that operate air emission
controls under the Clean Air Act ("CAA") 60 Fed. Reg. 41870.
In that Federal Register notice, EPA announced that it "is
planning to publish a technical correction notice to the rule. -
.. and may also propose additional changes to the rule in the
near future." Id. In view of EPA's on-going administrative
review process, the related judicial review of the Subpart CC
rules, and fundamental flaws in the underlying risk assessment
. and test methodology which we discuss below - EPA should not
base any Phase IV Rule decisions on the Subpart CC rule or its
underlying analyses. Test Method 25D Produces Artifact VOCs That
Bias Test Results. EPA's Phase IV preamble discussion of Option^
- 2.controls for air emissions states that substantive portions of
Subpart CC would be "borrowed from that Rule" including "waste \
determination procedures" that use Method 25D to determine
whether the 100 ppmw regulatory level is triggered. 60 Fed.
Reg. 43663. AF&PA told EPA in its Subpart CC comments, and in
communications with the Agency in connection with its ongoing
492
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.administrative review, that.Method 25D is. seriously flawed
because, in essence, it creates VOCs where none otherwise exist. - ,
We summarize these comments below. Method'25 D. employs
polyethylene glycol ("PEG") as a matrix for collecting waste
samples for analysis. The PEG must, however, be "cleaned up"
before use in ah actual test procedure to remove organic ' -
1 .compounds that may be detected as volatile organics by the test '
method. Method 25D § 3.1.1,40C.F.R. Part 60, App,,A. The
cleanup procedure involves heating the PEG to 120° C and purging (
it with nitrogen. Id. NCASI informed EPA (in comments on
proposed Method 25D) that PEG thermally degrades'during this
cleanup process into volatile organic compounds, which are
purged at low pH conditions. These VOC artifacts create false
positive results that can exceed the 100 ppmw regulatory \ .
threshold. NCASI submitted experimental data to EPA, set out
below, which demonstrate this effect. EFFECT OF PEG TREATMENT.
493
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. TEMPERATURE ON BLANK RESPONSE [NOT REPRODUCED HERE] In the final
. Subpart CC rule, EPA responded to NCASI's comment by lowering
the.PEG cleanup temperature from 200° C (as proposed) to 120° C.
This does not, however, resolve the problem. The above data -
show that significant levels of volatile organics were found in
PEG even when cleaned up at 125° C and 75° C. Extrapolating
from these data to a cleanup temperature of 120° C, a sample -
containing no volatile organics with a pH of 2 would have a '
measured Method 25D response of 126 ppm. This is well above the
regulatory threshold of 100 ppm, even after subtracting the .
maximum allowed 10 ppm blank level. In other words, using the
.final Method 25D, a laboratory blank would exceed the final 100
ppmw regulatory threshold even before volatile organic levels in
a waste sample (if any) are considered. NGASI experimented with, '
several alternative means of remedying this problem and found '
that the best approach to correct the bias in Method 25D is to
incorporate each of the following points into a revised Method ,
25D: lower the treatment temperature of PEG to room temperature
and increase the purge volume to reach the desired level of VOC
. removal (48 hours in the case of NCASI's experiments);. "
perform the blank analysis at a pH similar to that of the sample
adjusting for both pH and buffer capacity; and allow larger ,
blank levels to be subtracted if the variability of the blank
can be shown to be less than 10 ppm VOC. Reducing the cleanup :
temperature will minimize the PEG artifact response, analyzing
the blank at the sample pH will measure the artifact response, . .
and subtracting the blank value will correct for the artifact
. response. Although the blank response for PEG prepared at room ',
temperature was found to be greater than 10 ppm (Method 25D
presently limits blank subtraction to 10 ppm or less), NC ASI
found that blank levels have been very consistent. Therefore, '
subtracting a blank level higher than 10 ppm (39 ± 2 ppm in
NCASI's pH 2 example) would not adversely affect the accuracy or
precision of the revised method. Given the flaws in Method 25D,
which we understand EPA is now addressing in the context of its
administrative review, it is not appropriate to incorporate this
test method into any possible PhaseilV controls. Method 25D -y_ .
Overstates The Organic Volatilization Potential Of Waste
Material. Volatility of organic compounds is generally a
.function of temperature. As the temperature of a waste sample
is increased, so does the amount of organics that are driven
off. Methpd 25D requires that waste samples be heated to 75° C
494
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and purged with nitrogen.. AF&PA commented to EPA during, the
495
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Subpart.CCrulemaking that the.extremely high heat required by ;
the test protocol does not simulate the conditions used by the '
Agency to estimate risks from VOC emissions. Consequently, the
' test method results in regulatory control of wastestreams that , , .
would not otherwise contribute to the risks that the rule seeks
to reduce. In other .words, Method 25D exaggerates the amount of ' -
volatile'organics in particular wastestreams and results in ' , ,
unnecessary regulation of them when, in fact, these wastestreams
. would not pose a risk from volatilization of organic compounds .
under ambient and waste unit operating temperatures. In support
of this comment, AF&PA reminded EPA that the Agency used an <
ambient'temperature of 25 °. C in mathematical models used to
' estimate nationwide air emissions and the degree of emission
control afforded by different control technologies. AF&PA '
Comments at 7; BID, App. C, p. C-28. EPA also used ambient . .
temperatures in models used to estimate maximum individual
cancer risk and air toxics emissions from treatment, storage and
disposal facilities ("TSDF"), which the Agency acknowledged are
sensitive to temperatures at the TSDF site. 56 Fed. Reg. 33513;
BID, App. Jjpp. J-9 to j-10. EPA did not, in the final rule, ,
reduce the purge temperature to ambient conditions to bring it
into line with the temperature used in its emissions and risk 4
modeling work. EPA explained in the BID that Method 25D was
intended to provide only a relative measure of organic emission
potential of a waste, rather than measure actual emissions from .
a waste at an operating facility. Thus, EPA reasoned, it need
not use realistic temperatures in the test method. BID at 8-5. ;
But the Agency never explained in any readily discernable
fashion how Method 25D distinguishes wastes which contributed to '
EPA's estimates of risk from those wastes which do not create . ;
the risks EPA sought to avoid. In other words, neither the , '
preamble to the final rule, nor the BID presented a rational .
connection between wastestreams that would be controlled by
application of Method 25D and the Agency's emission and risk
estimates, which were based on mathematical models that used
ambient temperatures.
RESPONSE , .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and ah- emissions from surface impoundments hi systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
496
-------
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a^result, on April 8, 1996, EPA withdrew its treatment standards for these wastes.(61 FR 15660).
Today's Phase IV final rule" will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). .Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the.Safe
Drinking Water Act. ; t . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year, study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments; The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ... .
497
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DCN PH4P044 .
COMMENTER American Forest & Paper Association
RESPONDER SS
SUBJECT EQUV .
COMMENT EPA's Phase IV.Risk Calculations Show That There Are No
Significant Risks Associated With Air Emissions From Pulp and
Paper Facilities. EPA established a 100 ppmw significant risk
threshold for VOC emissions from surface impoundments. 60 Fed.
Reg. 43663. The Agency calculated in the Phase IV RIA that VOC
surface impoundment concentrations below this threshold would
result in 0.000824 cancer cases per facility annually. RIA
2-51. But EPA also calculated that VOC concentrations ranging
from 100 to 500 ppmw would produce essentially the same low risk
results of 0.000828. RIA Exhibit 2-20 at 2-51. Consequently,
EPA's cqnclusion.that VOC concentrations in surface impoundments
above 100 ppmw pose a significant risk that warrants
consideration of control measures is incorrect. This flaw is
compounded by the Agency's admission-that these population risk
estimates are based on'emissions from both tanks (which are not
affected by the Phase IV proposed rules) and surface
impoundments. RIA 2-51, note 34. In fact, 80% of the VOC
concentration data points used by EPA for this risk estimate
were from tanks, not surface impoundments. Id. Thus, EPA's
Phase IV risk assessment results exaggerate the annual , '
population risk for VOC concentrations by 'including in those .,
estimates treatment units that are not covered by the Phase IV
rules. In fact, the risks from VOC emissions from paper industry
surface impoundments are so small that EPA's RIA predicted that
imposition of Option 2 control measures would not further reduce
the risk. EPA estimated the potential risk reduction for air -'
emissions if Subpart CC controls are imposed on decharacterized
i wastewaters with VOC concentrations in excess of 100 ppmw. RIA
at 2-75. In the baseline case (i.e., no additional controls),
EPA estimated a 0.1 baseline annual population risk (cancer
cases) for all 565 facilities in the pulp and paper industry. .
Exhibit 2-28, RIA at 2-73., EPA estimated that the
post-regulatory annual population risk is also 0.1; the same '
risk estimated for no additional control measures. Thus,
according to EPA's RIA, there is no benefit to imposing Subpart
CC air emission controls on pulp and paper industry surface
impoundments. In other words, paper industry surface
impoundments already evidence "minimized threat" results for VOC
498
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emissions and therefore meet RCRA § 3004(m) requirements. EPA
499
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should, therefore, reject Phase IV air emission controls for '
pulp and paper industry facilities. < l
RESPONSE " ' . . . . ' ; , , -
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that '
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges,' and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity.when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal/once rendered nonhazardpus. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions'for managing leaks, sludges, and air
, emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR . .
43655-43677)). Furthermore, the treatment standards for TG metal wastes in today's rule do not
apply to TG metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe . ,
Drinking Water Act. . '". .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a Sr-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,. 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . '
500
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DCN PH4P044 ' t ' , . .
COMMENTER American Forest & Paper Association . . .. ,
RESPONDER SS .
SUBJECT EQUV '.,.'''_ -
COMMENT >EPA Has Correctly'Rejected Option 3.- Under Option 3, ' '_ '
decharacterized wastes would have to be treated to meet UTS
before they enterinto CWA surface impoundments. 60 Fed. Reg.
'(v 43655,43675. AF&PA is gratified to.learn that "EPA'is not in :
favor of the third option, as it is likely to disrupt treatment
"needed for compliance with the CWA limitations and standards,
and impose high costs'without targeting risks adequately." 60
Fed. Reg. 43655. EPA is entirely correct that Option 3 would I
disrupt CWA treatment without environmental benefit because it < ~
would ignore useful treatment that occurs in paper industry . ,
surface impoundments and'"forceQ modifications at facilities
that do, as well as those that do not, pose risks from leaks, '.
air emissions; and sludges." 60 Fed. Reg. 43659. Moreover,
Option 3 would render RCRA § 1006(b) a nullity, because it would
destroy the integration of RCRA and other acts administered by . .
EPA as the Congress commanded. .See CWM at 20; 22-23. Finally, -
it would ignore the CWM Court's finding that "under RCRA diluted . 3
formerly characteristic wastes may be placed in Subtitle D -
surface impoundments that are part of an'integrated CWA '- ,.
. treatment train... before they have been treated pursuant to
RCRA " 976 F.2d 2 at 22.. For each of these reasons, EPA
has correctly rejected Option 3. .
RESPONSE, .- ' .-- .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
'wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated.by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . . . . ,
501
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However, the Land Disposal Flexibility Act does mandate EPA to.undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments: The findings of this study, begun by the Agency in April, 1996, may
. result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . ' : '.'.'
\\
502
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DCN PH4P044- , - .;
COMMENTER American Forest & Paper Association
RESPONDER SS ,-
SUBJECT EQUV
COMMENT Option 2 Issues. AF&PA has urged, in these comments that EPA
adopt Option 1 (i.e., end-of-pipe-equivalence satisfies §
3004(m)) and r eject Options 2 and 3. We offer the following
comments, however, about several facets of Option 2 for the sake .
of completeness. The Proposed De Minimis Exception For
Dechafacterized Wastewater Does Not Afford Significant Relief To .
' Industries That Practice Water Conservation. Existing LDR
regulations have for some time incorporated a de minimis
exception for certain low risk/low quantity wastestreams. See
e.g., 40 C.F.R.§ 268.1 (e)(4) (losses to wastewater treatment
systems of certain commercial chemical products) and (e)(5) : -
(laboratory wastes). EPA proposed in its Phase III rules a r
similar exception for material handling losses, leaks,
discharges from safety showers, rinsate from empty containers
and for characteristic wastes injected into Class 1
non-hazardous wells. In its comments on the Phase III rules,
AF&PA urged EPA to extend the de minimis exception to
decharacterized wastestreams that are managed in CWA surface
,, - impoundments. Although AF&PA is gratified to see that EPA has
proposed a de minimis exception in § 268.1 (e)(4)(ii), 60 Fed.
Reg. 43691, the 1% flow limit precludes significant relief to
industries like ours that practice aggressive water
conservation. In 1989, NCASI surveyed its membership to obtain
information on wastewater and solid waste management practices, ,
including information on water conservation and reduction in
wastewater flow to treatment works. The survey data show that
during the period 1975 to 1988, paper mills reduced water use by.
27-34%. Even in the short 3-year period from 1985 to 1988,
water use was reduced by 7-9%. Significantly, in 1988, it took !
70% less water to make a ton of paper than in 1959. NCASI .
Technical Bulletin No. 603 at 3 (February, 1991) (Technical
' ' Bulletin No. 603 is attached as Appendix G)/As a result of
these aggressive water conservation efforts, wastewater flow to
treatment works was reduced by approximately the same magnitude.
Between 1985 and 1988, untreated wastewater flows were reduced
by approximately 8%. The paper industry reduced wastewater
flows by 26-29% during the period 1975 to 1988. Id. The end
result of the 1% flow limit is to penalize industries that
, practice water conservation relative to those industries that do
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not conserve water. AF&PA believes that EPA did. not intend this
result. AF&PA would-like to meet with EPA to develop a de
minimis exception for decharacterized wastewater that affords
water conserving industries meaningful relief while protecting
'human health and the environment.'EPA Should Exclude
Pre-Biological Sludges From Option 2 Regulation Because Both The
. Central-Tendency And High-End Risk Assessment Results Show No
Significant Risk From This Source For The Pulp And Paper
Industry. EPA proposed to exclude from Option 2 controls
certain low risk situations including "sludges and leaks from ,
biotreatment and post-biotreatment units ... due to the lower
.risks posed by these units." 60 Fed. Reg. 43660. AF&PA agrees
that this exclusion is supported by the Agency's risk assessment
coupled with the aggressive biological and post-biological > .
treatment that occurs in pulp and paper industry surface
impoundments. In addition, this exclusion conforms with the CWM
decision, which found that "under RCRA diluted formerly
characteristic wastes may be placed in Subtitle D surface
impoundments that are part of an integrated C WA treatment train
..; before they have been treated pursuant to RCRA "
976 F.2d 2 at 22 (emphasis added). EPA's conclusion is further
confirmed by the NCASI risk assessment based on new data taken
from NCASI's 10-mill study and waste characterization database.
For the same reasons, AF&PA urges EPA to exclude pre-"biological
sludges from Option 2 control requirements. EPA's risk'
assessment for sludges from the pulp and paper industry show
that for both the central-tendency and high-risk scenarios
significant health risks do not occur. According to EPA's RIA,
"in the... pulp and paper... industry], there are no
[sludge] samples expected to pose individual lifetime cancer
risks in excess of 10-5 or RfD exceedences" for the
central-tendency risk assessment. RIA at 2-66. Significantly,
even for the high-risk scenario using the conservative DAF of
12, EPA concluded that "in the ... pulp and paper industr[y]
there are no significant individual lifetime cancer risks and no
RfD exceedences." Id. For these reasons, EPA should exclude
paper industry sludges from Option 2 controls. EPA Correctly ^
Avoids Regulatory Duplication By Deferring To Other Federal
Rules That Will Protect Human Health And The Environment Such As
The Proposed MACT Requirements For The Pulp And Paper Industry.
EPA stated in the Phase.IV preamble that "to avoid duplication
with other requirements, EPA would defer to other federal rules
which establish controls addressing the same situations." 60
504
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Fed. Reg. 43660. EPA is correct to do so for at least two
reasons. First, RCRA §'1006(b)(l) requires that.the '
Administrator "shall integrate all provisions of [RCRA] for
purposes of administration and enforcement and shall avoid . %
duplication, to the maximum extent .practicable, with the
appropriate provisions of .the Clean Air Act....." 42 U.S.C.
§ 6905(b)(l). ^Second, EPA recognizes that certain - .
"inefficiencies and confusion could occur if Option 2 controls
' were applied and soon superseded by upcoming Clean. Air Act
("CAA") standards" as in the case of the pending MACT standards
for the pulp and paper industry. Id. It would make no sense
for EPA to impose LDR air emissions standards that are possibly
inconsistent with those now being considered by EPA's Office for
Air and Radiation. Thus, EPA's proposal to defer to such rules
honors both its statutory requirements and the concept of
practical regulation. AF&PA understands from the Phase IV -
preamble that EPA intends to defer completely to the proposed
MACT standards for the pulp and paper industry. The Agency
stated that In the case of air emissions, EPA would defer to
standards regulating total volatile ofganics, as adequately
covering air emissions of UHCs from this type of treatment. In
addition to existing regulations, there are some CAA air
emission limits under development. Inefficiencies and confusion
would occur if Option 2 controls were applied and soon
superseded by upcoming CAA standards. Facilities subject to CAA
, standards for hazardous air. pollutants (in particular, those
promulgated pursuant to CAA § 11.2) in the near future thus would
not be covered by Option 2 air emission controls. 60 Fed. Reg.
43660. But the RIA suggests that EPA is at least considering
giving less than full credit to the MACT standards, because
implementation of MACT control technologies may not lower
, concentrations of VOCs to below the 100 pprri limit being
considered for Phase IV Option 2 purposes. RIA ES-5,2-52.
AF&PA urges EPA to give full credit to the MACT standards for
the following reasons. First, as we show above, EPA's risk
calculations demonstrate that there is no difference in
calculated risk between surface impoundments that exhibit VOC
concentrations below 100 ppmw (the no significant risk level)
and those that;exhibit VOC concentrations up to 500 ppmw. RIA
Exhibit 2-20 at P-51. The proposed MACT control trigger level is
500 ppmw for process wastewater. 58 Fed. Reg. 66145 and
proposed 40 C.F.R. § 63.446, 58 Fed: Reg. 66177 (Dec. 17,1993).
Thus, the 500 ppmw trigger level for paper industry MACT
505
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wastewater controls achieves the same level of risk reduction as
EPA's 100 ppmw control threshold for the Subpart CC rules, which ,
EPA may adopt under Option 2. Moreover, MACT technology is
essentially the analog of LDR Best Demonstrated Available
Technology ("BDAT"); Under § 112 of the CAA, EPA sets MACT
'standards that are "no less stringent than 'the average emission
limitation achieved by the best performing 12 percent of the
existing sources' or'the average emission limitation achieved
by the best performing five sources'" depending on how many
facilities there are in a given subcategory. 58 Fed. Reg.
66136. This formulation of the MACT standard is essentially the
same as RCRA BDAT, which EPA describes as follows: A treatment
technology is considered to be 'demonstrated' primarily based on
data from full-scale treatment operations, that are currently
being used to treat the waste .... Once the 'demonstrated1
technologies have been identified, the Agency determines whether
these technologies may be considered'available'. To be
'available1 the technology ... must be able to be purchased
and the technology must substantially diminish the toxicity of
the waste of reduce the likelihood of migration from the waste's
hazardous constituents. 54 Fed. Reg. 48380-81 (Nov. 22, 1989).
Selection of MACT technology from the "best performing" mills
mote than meets the BDAT definition. In point of fact, EPA's
Office of Air concluded that MACT technology would reduce
hazardous air pollutant ("HAP") emissions from pulping by 98%
and will reduce by 99% HAP emissions from bleaching operations.
58 Fed. Reg. 66145 (Dec. 17,1993). This more than meets the
BDAT criterion that "the technology must substantially diminish
the toxicity of the waste " Significantly, EPA's Office.
of Air concluded that "because most of the HAP from pulping
. component and process wastewater emissions is also VOC, the
reduction efficiency for total HAP was determined to be the same
as that for VOC." Id. Given the essential equivalence of the
MACT and BDAT selection criteria and given the 98% or 99% VOC
reduction represented by the paper industry MACT 500 ppmw
threshold, EPA should have no reservations about deferring fully
to the MACT standard. EPA should defer possible Phase IV
controls to the pulp and paper industry MACT standards for
another reason. Methanol is the principal organic constituent
of pulp and paper industry wastewaters. 58 Fed. Reg. 66087
(Dec. 17,1993) ("The majority of all HAP emissions from the
pulping and process wastewater components are methanol....")
and Table 1, above. Methanol is not a volatile material and is
506
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.almost completely, removed from paper industry wastewater'by
aggressive biological'treatment. hvtheNCASI Biotreatability ' -': . 1.
Report attached as Appendix B, researcher Douglas A. Barton .
investigated.the biotreatability of methanpl, among other
organic constituents, and concluded that biological treatment in . "
paper industry surface impoundments removes more than 99% of .
. methanol present. Significantly, less than 0.1% of the methanol J ,
is removed via air stripping or adsorption. Thus almost 100% of
methanol removal is attributable to legitimate treatment. NCASI
Report, Table 5 at 7 (Appendix B). But the Subpart CC Test ' .
- Method 25D does not discriminate among VOCs, nor does the. -;
' Subpart CC 100 ppmw control trigger level. As we show above in
' our discussion of Method -25D, the artificially high test '';.-'
. . temperature of 70° C will "drive-off organic compounds that are
not volatile under real world conditions. Thus, EPA's Phase IV
Option 2 control measures may be triggered if, as EPA discusses,'-
' Subpart CC applicability standards and test procedures are .-
incorporated, even though the principal organic constituent of
paper industry wastewater is not volatile. Complete deferral to
'' the paper industry MACT rule would avoid unnecessary Option 2
controls of a non-volatile material. In the MACT rule, EPA's -
Office of Air used methanol as a surrogate: for HAPs when the . .
Agency developed and selected MACT treatment options. 58 Fed.
Reg. 66149. (Dec. 17, 1993). It was, therefore, largely with
respect to methanol that EPA's Office of Air concluded that MACT
control requirements would reduce emissions from process v
wastewater by 98%. 58 Fed. Reg. 66145 (Dec. 17,1993). It is
hard to imagine that RCRA §3004(m)'s "minimized threat" ;
., language would require anything.more. Consequently, EPA should " .
defer possible Option 2 air emission controls completely to the ' .
proposed MACT standards for the pulp and paper industry.
RESPONSE.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes ^hich initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land 'disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
507
-------
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe'
Drinking Water Act., t . :
However, the Land Dispqsal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
. surface impoundments. The findings of this study,, begun by the Agency in April, 1996, may
- result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. - . ,
508
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. DCN . PH4P046 . , ' - ' '
COMMENTER National Mining Association .
RESPONDER PMC .'-'.-
SUBJECT ,EQUV . " "',-.
SUBJNUM .046 ' ' '. .
COMMENT ' . , '. _''"'-.. . .
As the agency examines the issue of surface impoundments that-
manage decharacterized wastes, EPA must.remember that Congress has
not mandated the imposition of RCRA controls on sucn impoundments '
to control sludges, leaks and air emissions. Neither does the .
. decision in Chemical Waste Management v. EPA ("Chem Waste II)V976
; F.2d 2, cert. den. S..Ct. 1961,(1982))requireEPAto - ;
regulate, under RCRA, sludges, leaks and air emissions from -
surfaceimpoundments managing dechafacterized wastes. ,
Furthermore, not only are RGRA regulations not required, they are
"'.'.- not necessary in the mining and mineral processing industry to- ' .
control potential risks from sludges, leaks or air emissions from . ,
. surface impoundments managing decharacterized wastes. In fact, the-
. Chem Waste II decision supports the adoption of the proposed rule's
Option I, i.e., the existing panoply of federal and state , ,
requirements adequately address surface impoundments managing
decharacterizedwastes. To impose either of the proposal's other
two regulatory options would be regulatory overkill, unduly
disruptive of the existing Clean Water Act treatment systems, thus
effectively invalidating those systems. .
RESPONSE ' ..-_'.' ' .- / " " "
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiyity,
v reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is remoyed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
509
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However, the Land Disposal Flexibility Act does mandate EPA to undertake a. 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ,
510
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DCN . PH4P048 ' , . .
COMMENTER Chemical Waste Management
RESPONDER PMC . .
SUBJECT EQUV . ' , -
SUBJNUM 048 . - ' '
.COMMENT '-. .
. In light of the President's Common Sense Initiative CWM believes
that option 1 is the most practical approach of the three options
proposed. CWM does not see the benefit of adding another layer of
regulatory requirements on top of existing regulations
which address Subtitle D surf ace impoundments when they exist at
RCRA permitted or interim status facilities: Since 42% of these
Subtitle D surface impoundments exist at TSDFs which have ""
monitoring and release regulations, (See 60 Fed. Reg. at 43,659)
it appears to CWM that if cross-media releases occur from these
unpermitted impoundments that they can be addressed by the Agency
under the authority of RCRA §3004(u) or § 3008(h).
CWM believes that this option provides adequate protection and
thus should be finalized by the Agency. .
B. .Option 2 ^ .
Option 2 would require the development of controls mat focus on
situations positing excessive risk. This option would exclude
controls from the following: 1) waste waters that do not have
hazardous constituents above the UTS at the point of generation,
and 2)wastewaters with deminimis amounts of hazardous
constituents, as defined in the Phase III rule with regard to
discharges to UIC wells. This option proposes to defer controls,
for air emissions from Subtitle D surface impoundments receiving
. decharacterized wastes to Subpart CC type controls. It would also
apply existing 40 CFR 258 Subpart E groundwater requirements for
the control of leaks at these surface impoundments. This option
also recognized that if a Subtitle D impoundment that receives
decharacterized waste streams is located at a permitted ,TSDF that
no further control under this proposal are necessary. , '
As noted earlier CWM supports Option 1; however, if Option 2 is
promulgated CWM supports the subset of this option that recognizes
that Subtitle D surface impoundments receiving decharacterized
waste streams located at a permitted TSDF are not subject
to further control. In addition, CWM believes that it is important .
for the Agency to indicate that interim status facilities with
these types of surface impoundments are also not subject to further
control. This was indicated by the Agency in the discussion of
option!. (See60Fed. Reg. at 43,659). This is because the .
'511
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- interim status facilities are subject to cleanup under RCRA § '
3004(h); which provides the Agency the authority to compel
corrective action. ,
Inconjunction with the comment the Agency,must amend the , v
flowchart "Figure 1: Option2-General Applicability Criteria and
Compliance Alternatives for Surface Impoundments accepting
Decharacterized Wastes" (See 60 Fed. Reg. at 43,662) to reflect ;
that interim status facilities are subject to the same requirements
as permitted facilities. Specifically, CWM recommends that the -
bottom left decision box on the flowchart should be amended as
follows: ' ' . ' -
"Is the Surface Impoundment Located at a RCRA Subtitle C Permitted
, or Interim Status TSDF." .'.
With regard to air emission controls discussed under Option 2 CWM
does riot support subjecting surface impoundments receiving
decharacterized wastes at non-permitted or interim status ' .
facilities to air emission controls similar to those issued under
, Subpart CC because Subpart CC applies to hazardous wastes placed in
tanks, containers, or impoundments. CWM believes that air emissions
from these impoundments are most appropriately addressed under the
1 Clean Air Act ' . -...
C. Option3
Option 3, which'the Agency states it does not support, would
require that Decharacterized Wastes be treated (not merely diluted)
to meet Universal Treatment Standards (UTS),which includes
applicable underlying hazardous constituents (UHCs), prior to
entry into Subtitle D surface impoundments.
CWM believes that this option is identical to the Phase 111
proposed rule {60 Fed. Reg. at 11,702; March 2,1995) for
discharges to nonhazardous surface impoundments. CWM is in
agreement with the Agency's opinion that this option would be to ,
disruptive to the industry. CWM believes that the net benefit of . -
requiring such treatment far outweighs the high costs associated . . . ' .
with such a requirement .
' i
RESPONSE -
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corfosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of. 1996, which provides that the
512
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wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges,-and air
emissions from surface irripouhdments.(EPA proposed options on August 22, 1995 (60 FR
.43655-43677)).- Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is>eguiated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' ' . \ ,
? '
However, the Land'Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks-posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, -1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , .
513
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- PH4P049
COMMENTER Molten Metal Technology .
RESPONDER PMC
SUBJECT EQUV
SUBJNUM 049 \
COMMENT ;
- According to the proposal, "[t]he central legal and .policy
issue... is if and when releases of hazardous constituents from
surface impoundments which are part of a treatment train
for.decharacterized wastes are so extensive as to effectively
invalidate the treatment process as a means of LDR compliance," 60
. Fed. Reg. At 43656, col. 2. EPA is evaluating at least
three options for addressing this issue. MMT has no position on
which, if any, of the options under consideration should ultimately .
be adopted. However, MMT is concerned that EPA is considering
allowing substantial cross-media transfer of hazardous
constituents and relying on"after-the-fact" remedial authorities
(e.g., RCRA Corrective Action) to address resulting threats to
human health and.the environment. See, e.g., 60 Fed. Reg. At
43659, col. 3 and at 43661, col. 1.
RCRA provides that EPA must establish treatment standards under
the LDR program. These standards are defined as "those levels or
methods of treatment, if any, which substantially diminish
the toxicity of [a] waste or substantially reduce the likelihood
of migration of hazardous constituents from the waste so that
short-term and long-term threats to human health and
the environment are minimized." RCRA § 3004(m)(l). Furthermore,
EPA is authorized to allow land disposal of hazardous wastes only
if such disposal is deemed "protective of human health and the
environment," meaning that "there will be no migration of
hazardous constituents from the disposal... for as long as the
wastes remain hazardous." Id. § 3004(d)(l),(e)(l),(g)(5).. .
These legislative provisions establish a very high standard for
' allowing land disposal, and EPA has recognized this standard in its
regulations. For example, prohibited wastes may not be treated
in surface .impoundments if evaporation is the principal means of
.treatment. 40 C.F.R. § 268.4(b).According to EPA, "evaporation
...do[es] nothing to remove, destroy, or immobilize contaminants as
, contemplated by RCRA.... [T]he objectives of section 3004(in) [are
to] reduce levels of toxicity or reduce the potential for hazardous
constituents to migrate from the waste. Practices which do nothing
more than transfer constituents to other media fail to satisfy
this objective." 52 Fed. Reg. 25760,25779 (July 8,19.87) (emphasis
514
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.-added). , / ; ' - . ' - '
MMT agrees wholeheartedly with EPA's oft-stated position that
cross-media transfer of hazardous constituents is an unacceptable
means of achieving LDR standards. "Thus, we urge The Agency to very'
carefully consider the issue of cross-media transfer of hazardous .
constituents for surface impoundments, and'limit the allowable "
releases appropriately. In particular, we question whether any
option that relies on.RCRA Corrective Action or other remedial
programs can possibly meet the statutory requirement that selected
treatment methods minimize threats to human health and the .
environment.
RESPONSE ".'.'.."'
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
, environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the '.
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April-8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).-
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
^apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ''_
515
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DCN PH4P053 -
COMMENTER Texaco
RESPQNDER PMC
SUBJECT EQUV ...
SUBJNUM 053 . " . \
COMMENT ' - -% ' -
In both the Phase III and Phase IV proposed rules, EPA , . .
acknowledges that the risks addressed by these proposals are
relatively low. Instead, EPA bases their rationale for regulation .
.on the requirements of the holding in Chemical Waste Management.
-Inc. v. EPA, 976 F.2d 2(D.C. Cirl992): cert, den 113 U.S. 1961 ,
(1983). However, the case holding does not require such regulation
on surface impoundments. EPA should not read into this case such
overly broad requirements. Therefore, EPA should adopt Option I in
the proposal no further regulation of non-hazardous surface
impoundments. Also, storm water impoundments that receive
process water during storm events should be exempt from Phase III ~
and Phase IV proposed rules.
II. EPA should adopt Option I, No Further Requirements for Non
Hazardous Surface impoundments
1 Texaco strongly urges EPA to adopt Option I of the proposed rule
. as the risks posed by non-hazardous Clean Water Act (CWA) surface
impoundments do not warrant any additional regulations. EPA has
already recognized that any risks would be low. As a result of the
Toxicity Characteristic rule and the Primary and Secondary Sludge
Listings, any potential risks associated with sludges and leaks
, from petroleum industry nonhazardous CWA surface impoundments
are already minimized. In addition, any potential risk from air
emissions are minimized as a result of CAA Benzene Waste NESHAP and
Petroleum Refinery MACT applicable to wastewaters managed by the
petroleum refining industry. Therefore, any additional RCRA
regulatory requirements which may be imposed by this proposed rule
would be unnecessary as well as overlapping those requirements to
which our refinery wastewater treatment systems are
already subject. Additional RCRA requirements would not
significantly lower any risk while the costs to implement would be
substantial.
III. If Option II Is Adopted, EPA Should Implement the
Following Modifications' . '.'
If EPA should decide to regulate non-hazardous surface
impoundments under this proposed rule, EPA should-adopt Option II,
,, in consideration of the following comments: x
Texaco supports EPA's proposal to exclude from regulation, sludges
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and leaks from biotreatment and.post-biotreatment surface
. impoundments as supported by our comments in section II. EPA should -
clarify that this includes an exclusion from any groundwater
monitoring requirements.
Texaco supports EPA's position that facilities regulated under CAA
regulations will automatically fulfill any Phase.IV air emission
obligations. However, EPA should clarify that CWA . . . .
.surface impoundments which are already subject to regulation under
. the Benzene Waste NESHAP, NSPS, Petroleum Refinery MACT or
Hazardous Organic NESHAP MACT (including compliance with bubbling,
de minimis thresholds, or technology standards) would be , \ . l
excluded from Phase IV air emission control requirements. This
'. should be specified as ah exemption from and not a fulfillment of . '
. Phase IV air emission obligations to avoid any unnecessary .
duplicate monitoring and record-keeping which may be interpreted as
being required. ' , - '_.''
IV. EPA Should Not Adopt Option III , / ' \
Texaco supports EPA's conclusion that Option III is not . ('
appropriate. Subjecting non-hazardous surface impoundments to RCRA
.. * Minimum Technology Requirements, would result in a significant and
unnecessary regulatory burden to Texaco's operations. Substantial
: costs wouldbe incurred in retrofitting, costing millions of
dollars, with no commensurate environmental benefits.
EPA should exempt wet weather flow impoundments from regulation
.under the Phase III and Phase IV LDS. As the EPA appropriately- v >..
% , concluded during the primary and secondary sludge listing . ,.
determination, RCRA regulation of surface impoundments that >_'
receive small quantities of process water along with storm water > - :
during storm events is unnecessary. In addition, subjecting wet
weather flow impoundments to the regulatory requirements imposed
by the Phase III arid Phase IV LDS would represent a significant . ,
cost and burden to Texaco's operations with little, if any, , .
environmental benefits. / . .
RESPONSE . . '.'':" -..'\. .'.".'.,-
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by. the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity,,or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous.' As
517
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r
a result, ori.April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV filial rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. -.< , ;.'.-
i t '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any, potential risks posed by cross-media transfer of hazardous'constituents from these
.surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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DCN . PH4P054 . .
.tOMMENTER Total Petroleum -. ' ': . '
RESPONDER PMC ~'
SUBJECT EQUV
SUBJNUM 054 " . - . ' '
COMMENT , . ' ..'
Total Petroleum, Inc. is an independent refiner and marketer of
petroleum products, primarily fuels, in the central United States.
This rule will have a direct impact on our refining operations and
we appreciate this opportunity to comment on the proposed Phase, IV. .
Land Disposal restrictions. It is our belief that Clean Water Act
and Safe Drinking Water Act regulated units, such as injection . .
"wells, accepting "hazardous wastes" which are rendered
non-hazardous by dilution pose only minuscule, negligible risks and
should not be regulated further. This' is another example of a rule
whose costs are extreme and benefits are low. EPA should select ,
, Option 1,which requires us additional mandates.
Recent EPA ralemakings have significantly improved the , ' .
environmental management of all media at refineries. The
regulations have in turn reduced the risk to human health and the
environment from surface-impoundments resulting in negligible
risks. ',
\ _, .
The Toxicity Characteristic (TC) rule promulgated on March 25,
1990 significantly reduces benzene and other hazardous constituents
in wastewater. f ' '
The Primary Sludge Listing rule promulgated on November 2,1990
required sludge removal and convert impoundments to non-hazardous
service under closure provisions of40CFR 265,. 113.d-e.
the National Emission Standard for Benzene Waste Operations (BWON)
promulgated on January 17,1993, resulted in the segregation and
treatment of benzene containing wastewater. In the process
complying with the BWON, most other organic constituents such as
. toluene arid xylene were also controlled in the wastewater
stripping prior to entering a surface impoundment.
The SOCMIHON rule, promulgated on February 28,1994 has reduced
hazardous air pollutants from wastewater and other sources at the
petrochemical plant. ~ "v
The RFG rule, promulgated on December, 14,1993, requires
refineries to reduce the benzene content in gasoline: This change ,
in gasoline also results in the reduction of emission of benzene at
refineries. In addition, the gasoline distribution MACT,
rule, promulgated on July 28, 1995, reduces the emissions of
benzene and other air toxics from the refinery. Both of these
519
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rulemakings have significantly lowered the existing
baseline emissions of air toxics from the refinery. The new air
toxic emission baseline has been reduced to a level that any
additional regulation of air toxics as proposed by EPA in Options 2
and 3 cannot be justified as being cost effective. ^
The scope of Phase IV rulemaking should not include any additional
requirements for surface impoundments or underground injection
wells., ' * .
Stbrmwater impoundments are very low risk and additional controls
proposed under this rulemaking cannot be justified as being
cost-effective. -,
Treatment impoundments managing non-hazardous wastewaters are
recognized in the Third opinion as integral CWA units.
. Storm water impoundments are important equalizers that are
required to maintain the efficacy of biological treatment systems"
and ensure that the refinery is in compliance with CWA permits.
Stormwater impoundments also provide surge protection for
wastewater treatment plants and thus prevent the rapid flushing of
biomass from the wastewater treatment plant. As an integral part of
the CWA treatment system, stormwater impoundments should not be
regulated as RCRA units. '
The management strategy for a stormwater impoundment requires it
to be empty whenever possible so that it can receive stormwater. .
Therefore, the residence time of Underlying Hazardous Constituents
(UHCs) is low and the water driving force (head) is also low.
Further decharacterized process wastewater constitutes only a
fraction of the total stormwater and is predominantly non-oily.
These factors limit the possibility of UHCs migrating out of the
stormwater impoundment -
RESPONSE .
In the August,22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the '
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
520
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43655-43677)). 'Furthermore, the treatment standards for TC rrietal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated.
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ,. - . -
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks'posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations'for these units, if risks are in fact, found that would warrant such
regulation. . - ' ..'''"
521
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DCN . -PH4P054 ,'..-. ,
.COMMENTER Total Petroleum
RESPONDER SS . .
SUBJECT EQUV
SUBJNUM 054 . . , ' ' ,
'COMMENT
Advanced biological treatment (ABT) should be designated as Best
Demonstrated Available Technology (BACT) for wastewater and
wastewater sludges from refineries and co-located petrochemical >
plants;
ThecombinationofABTs and downstream geological impoundments
provides long residence times of wastewater in treatment units,;
low cost, ease of operation, and a cost effective approach to
maintaining compliance with the CWA permits. - '*.'
ABI is a proven cost effective technology that meets the Universal ,
treatment Standards(UTS) and minimizes analytical difficulties and
, monitoring burdens. ' , '
The CWA permits at refineries and petrochemical plants using ABI
are protective of human health and the environment;
RESPONSE: '
As explained by the Agency in the preamble to the LDR Phase III final rule, biotreatment
systems vary in performance both in general and as to specific constituents. The Agency
therefore is reluctanHo designate ABT as BOAT. The Agency has data related to the
performance of ABT from only 10 facilities. The main reason for establishing ABT as BOAT
that was provided by commenters to the Agency, during the development of the final Phase III
rulemaking, was the elimination of the compliance monitoring burden. The Agency does not
believe that reducing monitoring burden is an adequate justification for creating a new
technology-specific treatment standard. However, EPA did decide, in promulgating the LDR
Phase III final rule, to reduce the monitoring requirements for decharacterized wastes that are
* managed in a wastewater treatment system involving ABT. These wastes must be monitored
annually to ensure compliance with the treatment standards for underlying hazardous
constituents
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DCN PH4P055 , , ' .
COMMENTER American Industrial Health
RESPONDER PMC .
SUBJECT EQUV . ' . ' ' ' ^
SUBJNUM 055 '
COMMENT "... - x .' - % , . '.'_.
For evaluation of risks from transfer of constituents to air, EPA
relied on the generic risk estimate for VOCs derived in the Subpart
CC risk assessment for air emissions. The Subpart CC Rule-is
currently under litigation to resolve critical issues including
the appropriateness of the lOOppm VOC trigger level. .There are
. substantial concerns about this earlier risk assessment, and EPA
should at least consider using chemical-specific emission rates as -'.''
recommended by Gradient Corporation instead of the generic risk
estimateforunideritified VOCs, particularly in/light of the -
fact that there are numerous differences between the makeup of
, VOCs evaluated in the CC rule and those treated in surface .
impoundments. .
RESPONSE
, In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in.decharacterized wastes were not released to the \
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially .exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. - . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
523
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DCN - PH4P055
COMMENTER American Industrial Health . , .-
RESPONDER SS
SUBJECT EQUV ' , .
SUBJNUM 0.55 > - .
COMMENT . . ;
In general, AIHC supports the Agency's use of a risk-based
approach to evaluate chemical releases associated with the
treatment and disposal of non-hazardous waste from
surface impoundments. However, we have significant concerns with
the nature in which a number of technical issues were evaluated, as
illustrated in Gradient Corporation's report. Overall, we support
Gradient Corporation's technical comments and, in this letter,
highlight some of the issues which are of particular importance to
. AIHC. .
The mission of AIHC is to promote the sound use of scientific -
principles and procedures in public policy for the assessment and
.. regulation of risks associated with human health effects
and ecological effects. Although AIHC does not act as an advocate . , -
for any product or substance, its generic positions directly affect
the scope and impact of individual regulatory decisions.
AIHC is a broad-based association that represents a diverse
coalition of companies and trade associations, including
manufacturers of consumer products, Pharmaceuticals, petroleum,
paper, chemicals, motor vehicles, foods and beverages, high
- technology, and aerospace products. Many of the Council's members
currently use impoundments for treatment of non-characteristic
. wastes. Further, AIHC has a significant interest in the proposed
. rule due to the reliance upon a risk-based approach to regulatory .
decision-making. Overall, AIHC is concerned that the development
of regulatory options for land disposal as it stands today is not
based upon sound science and that the options do not provide
sufficient regulatory flexibility to take into account new or ;
site-specific information and data. ,'.'..
RESPONSE: ' . . .
In the August 22,1995 Phase IV proposal, EPA^ discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are ho longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
524
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wastes in question are no longer prohibited from land disposal once rendered nonhazardpus. As
a result, on. April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Wafer Act or, for underground injection wells, the Safe
Drinking Water Act. . ,-'-' . ' x ; '
. ' ^
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. :The findings of this study, begun by the Agency in April, 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
525"
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DCN .. PH4P055 . .... . - '
COMMENTER American Industrial Health .','-
RESPONDER SS
SUBJECT EQUV
SUBJNUM 055 .. - .
COMMENT :...
We commend the Agency for using two different values for the
dilution attenuation factor (DAF) in characterizing the risk via
- the groundwater pathway: one to estimate high-end risks and
the other to estimate average risks. However, the Agency has
selected a point estimate for a high-end DAF which is greater than . ' ' y -
the 95th percentile previously identified in the Toxicity
Characteristic Rule. The Agency provides no rationale as to why
that point estimate was selected rather than the high-end DAF more
recently supported by the Agency. In addition to changing the
- high-end DAF, we urge the Agency to consider a range of values -,
rather than the two point estimates. .
RESPONSE: , ..'...'
The commentef's issue regarding the dilution attenuation factor (DAF) used by the Agency in
characterizing the risks from releases of decharacterized wastes from surface impoundments to
ground water has been rendered moot by subsequent legislation and rulemakings.
In the August 22,1995 Phase, IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed-the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes,(61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water, Act or, for underground injection wells, the Safe
Drinking Water Act ,
; ....,* .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
526
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regulation.
527
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D'CN - PH4P056
COMMENTER Westinghouse
RESPONDER PMC >
SUBJECT - EQUV . . , ' " .
SUBJNUM 056 .
COMMENT - , ' .'','
1. Due to inconsistencies between the preamble language and the
regulatory language, it is unclear whether the Phase HI and IV LDR
proposals apply only to CWA and CWA-equivalent systems that include
surface impoundments or to all types of CWA and CWA equivalent
systems. We expressed this concern in our comments on the Phase^
III proposal and it remains with the Phase IV proposal.
2. EPA should take into consideration that the impacts of the
proposed Phase III rule could not be considered when reviewing
Phase IV, since Phase HI has not yet been finalized. Under option
1, EPA would rely solely on existing and future, state and Federal
regulatory programs, other than the LDR program, to control .
cross-media transfers of untreated hazardous constituents .
associated with CWA surface impoundments managing decharacterized
, wastes. To satisfy the criteria set forth in Chemical Waste
: Management vs. EPA, that a demonstration be made of equivalent
treatment between CWA surface impoundments and conventional RCRA
treatment systems, the EPA proposed to rely on a demonstration of
compliance with the final end-of-pipe LDR standards. This has
a bearing on the selection of option 1 since the end-pf pipe LDR
standards have not been finalized yet.
The application of 40 CFR Part 264 Subpart CC air emission ,
requirements to surface impoundments in Clean Water Act, Clean
Water Act-equivalent, or nonhazardous wastewater treatment systems
that accept decharacterized wastes should not be required. The .
application of these requirements to surface impoundments described
in option 2 is not in alignment with the congressional directive
which provided the regulatory authority for the development of ,
Subpart CC, nor does it appear to be consistent with the EPA's
intention to develop Phase III implementation of this directive as
discussed in 56 FR 33490. These statements are based oh
the following:
The promulgation of 264 and 265 Subpart CC implemented
congressional directive in Section 3004(n) of RCRA, which directed
EPA to "...promulgate regulations for the monitoring and control of
air emissions from hazardous waste treatment, storage, and disposal
facilities, including but not limited to open tanks,
surface impoundments, and landfills, as may be necessary to protect
528
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human health and the environment." The standards were proposed and
"ultimately promulgated under Subpart CC of 264 and 265 during Phase
, II of the EPA effort to implement this statutory directive. The
standards established nationwide regulations for the monitoring and .
control of air emissions from certain waste management units
at treatment, storage, and disposal facilities (TSDFs) subject to
RCRA subtitle C permitting requirements. Phase II in Subpart CC
specifically excludes surface impoundments as described in'option
2. ' .. '-,'.'-.'
According to 56 FR 33490, the EPA planned to address residual risk
after promulgation of the Phase I included in 264 and 265 Subparts.
AA, BB, and Phase II included in 264 and 265 Subpart CC. The EPA
discussed plans to investigate additional cancer risk reduction
approaches beyond those considered in selecting the. basis of the
standards in Subpart CC as' part of the third phase of the
EPA's program to develop hazardous waste TSDF air emission
standards. If it was determined .that a need for additional risk :
reduction was needed, the EPA was to provide additional human
health and environmental protection by developing a nationwide
standard that would reduce the emission of the specific
toxic constituents of concern. The EPA also intended to update and
improve the database used for analyzing the human health and
environmental impacts resulting from TSDF air emissions. It does
not appear the EPA has investigated residual risks nor the need for
their reduction. It is not clear this database has been updated as
recognized necessary by the EPA in 56 FR 33490. Until these
issues are addressed, further application of these air emission
standards to waste in surface impoundments should not be
promulgated.
Comment #2It is not clear where in the CFR the air emissions
requirements for surface impoundments discussed in option 2 would
be placed. It appears the requirements would not be placed in
40CFR 264 and 265 Subpart CC because these types of surface
impoundments are specifically excluded. However, it does not seem
appropriate to duplicate these requirements in another portion of
the CFR because this would lead to inconsistencies when revisions
are made to Subpart CC. If option 2 is selected, consideration
should be given to expanding the applicability of Subpart CC or
simply referencing the requirements of Subpart CC to avoid as
many inconsistencies as possible. .
Comment #3 j . . i .
A public comment period for the promulgated regulatory language in
'.'' '529' -.
-------
264 and 265 Subpart CC recently closed on October 13, 1995. EPA
intends to modify and clarify a large portion of the regulatory
language included in these subparts. We recommend these
modifications be completed before further action is taken to extend
these air emission standards to other applications.
Comment #4If the EPA decides to implement option 2, the proposed
regulatory language related to air emission standards should be
available for public comment The regulatory development
of Subpart CC has presented several problems, most recently
resulting in an opportunity to provide public comments on a rule
that has already been promulgated. Comments on the
general approach of option 2 are insufficient in providing input to
the regulatory language development of these air emission
standards. - , '"-
Comment #5 '«
Several types of waste management units are riot applicable to the
requirements included in 264 and 265 Subpart CC. These are
specified in 264.1080(b) and 265.1080(b). These types of units, as
summarized below, should also not be subject to the air emissions
requirements discussed in option 2:- units that do not accept waste
after the effective date of the final rule- a surface impoundment
in which waste is no longer being added except to implement
an approved closure plan* a unit used solely for on-site
treatment or storage of waste that is generated as the result of
implementation of remedial activities.'
- a unit that is used solely for the management of radioactive
mixed waste in accordance with all applicable regulations under the
authority of the Atomic Energy Act and the Nuclear Waste Policy Act
In addition, surface impoundments are exempt from the requirement
of 264 and 265Subpart CC if they are used for biological treatment
of waste (264.1085 and 265.1086). This exemption should also be
included for surface impoundments described in option 2.
Recommendation A: Clarify the Regulation's Intent to Apply Only
to Surface Impoundments and Injection Wells
Clarify the language proposed for codification in 40 CFR °
268.3 9(b) to clearly state that disposal of characteristic wastes
only into surface impoundments or injection wells are
the prohibited activities (60 FR 11742). The background of this
rulemaking as discussed in the preamble distinctly and continuously
refers to surface impoundments and injection wells. Further, the
emphasis on disposal in surface impoundments contained in LDR III
is succinctly referenced in the summary to Phase IV LDR which
states that "EPA's recently proposed Phase III LDR rule. ..addressed
530
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wastewater discharges involving characteristic .wastes that are
deactivated through dilution and treated in surface impoundments,"
[60 FR 43655 (emphasis added)]. The Saltstone Processing and
531
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Disposal Facilities operate under both Industrial Wastewater
Treatment Facility permit requirements and Industrial Solid Waste
Disposal permit requirements. The.proposed °268.39(b) provisions
can be interpreted to indicate a broader applicability than that '
intended by EPA, .resulting in the Saltstone facilities possibly
being construed as.a zero discharge facility engaging in Clean , .
Water Act-equivalent treatment. In the Phase IV preamble, EPA is
mostly concerned witb^surface impoundments whose emissions to the
air and groundwater are not controlled. The waste treated in the,
Saltstone facilities are produced during the pretreatment step
to treat high level waste by vitrification, which is the specified
technology. If process changes were required to comply with this
proposed rule, delays to the high level waste treatment
program would undoubtedly result, without a commensurate
environmental benefit. , ,.
Recommendation B: TSD Facilities Are Not Subject to Additional
Requirements
The SRS is managed as.a RCRA TSDF under a site-wide permit. Under
RCRA and its associated regulations, all solid waste management
units located at the site are subject to RCRA CORRECTIVE action v
requirements. These controls have been recognized by EPA as a
proposal in option 1 to be sufficient so as to exclude TSDFs from
the applicability of certain portions of the phase IV LDR
regulations (see 60 FR 43661). If EPA is unable to clarify the
proposal as noted in (A) above, then Westinghouse supports the
adoption of option 1 including the provision to exclude TSD
facilities from certain provisions of the Phase IV LDR rule.
Recommendation C: Defer Management Standards to Existing State
Permit Programs
The Saltstone Processing and Disposal Facility operates under both
Industrial Wastewater treatment Facility permit and Industrial
Solid Waste Disposal Facility permit requirements issued by the ,
SCDHEC. State Wastewater treatment operating standards, in this
case comparable to the RCRA Subtitle C (Hazardous Waste Management)
and Subtitle D (State Solid Waste Plan)requirements, should be
considered by the EPA in determining whether acceptable
and enforceable controls have been implemented by the state which
would satisfactorily minimize short and long term threats to human
health and the environment. At Saltstone, such
enforceable controls are in place as required under the South
Carolina permits. Toxicity Characteristic Leaching Procedure
532
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.(TCLP) analyses are mandated periodically to insure .that no . ""' '
hazardous waste is placed into the concrete vaults. Equally -
important, the State requires that groundwater monitoring wells be
installed around the disposal vaults. This monitoring is
routinely performed to identify potential releases from the vaults. . "
Therefore, based on the State's permit conditions alone, the \.
Saltstone facilities routinely demonstrate compliance with ,
requirements that are equivalent to (although.potentially different
from) both LDR Phase IILand Phase IV management standards. EPA
recognizes that compliance with the LDR regulations can be . <- .
achieved through adoption of groundwater monitoring, detection, and-
correction mechanisms associated with impoundments. Therefore, ,
facilities such as those at Saltstone which have management ,-.''. ...
standards in place as mandated by other permits or permitting
authorities-could continue to. use impoundments (or CWA-equivalent
treatment systems) to manage decharacterized. wastewaters(See 60 FR
43666). . ,
RESPONSE. ", . . , . - /
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the,,,
environment, via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply .to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
. in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe .
Drinking Water Act , . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments! The findings of this study, begun by the Agency in April, 1996, may
result hi proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
533'
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DCN PH4P057 ' . .
COMMENTER Richard Andersen
RESPONDER PMC .
SUBJECT EQUV .-
SUBJNUM 057 - , " . .
COMMENT ' ' . ' . . ,
I am writing today both as a geologist and as a concerned Texan. .
The preamble to the proposed LDR Phase IV rule, vol. 60, No. 162, >
of the Federal Register, page 43671, seems to relate Clean Water
Act surface impoundments in arid areas to the small arid landfills
which have special accommodation in the Municipal Solid Waste
Subtitle D rules. However, there are major differences which ,
preclude applying the MSW small arid landfill provisions to
surface impoundments. .
1) The arid provision in MSW rules uses the rationale that, ,
because of low rainfall, the landfill won't contain significant
quantities..of free liquid. However, a surface impoundment normally
does contain liquid under a hydraulic head. An arid climate
, is irrelevant for a surface impoundment. > . '
2) The Phase IV preamble spoke of arid regions where ground
water is deep, and where a considerable release would occur before
contamination would reach ground water. However, some arid areas in
Texas have shallow ground water, and even desert springs. Other
Texas localities with deep ground water have karst conditions
where a leaking surface impoundment could contaminate ground water
very quickly. While I support EPA's efforts to allow alternative ,
,x monitoring where conventional systems will not work well, the rule
, for surface impoundments should be based on site-specific
geohydrology, rather than on a blanket provision for low rainfall
areas. .'.-','
3) The MSW small arid landfill provision also is based on
transportation, economic, and population density issues which don't
apply to surface impoundments. ' .
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that ;
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act of Safe Drinking Water Act (60 FR 43655). Decharacterized
.wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or tbxicity when generated but are no longer .characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that'the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
534
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a result, on April 8, 1996, EPA withdrew its treatment .standards for these wastes (61 FR 15660).
.Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes'are subsequently treated.
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. " ' " .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study, to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in-April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation: :
535
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DCN . PH4PQ59 '
COMMENTER Exxon Chemicals Americas . ,
RESPONDER MG
SUBJECT EQLFV ' .
SUBJNUM 059. . ' . ' .
COMMENT ' , -
; 4. De Minimis Exemptions: ECA Recommends Modifications to the De
Minimis Exemption Proposed for Wastewaters in CWA Systems
" ' To avoid requiring facilities to develop extensive procedures and
implement capital investments that are not warranted by the low
risks being addressed by the proposed LDR Phase III and IV rules,
EPA should ensure that de minimis provisions are .
adequately defined. The first step EPA should take is to ensure.
that the.provision on de minimis losses of characteristic wastes to
wastewaters which was included in the proposed LDR Phase III rule
is maintained (60 FR 11740; 268: l(e)(4)(I)). This provision . .
indicates that these de minimis losses are not subject to any
provision of part 268. The provision referenced is for de minimis
losses of characteristic wastes to wastewaters that are defined'
as: . . . -
"losses from normal material handling operations (e.g. spills from , ,
the unloading or transfer of materials from bins or other
containers, leaks from pipes, valves or other devices used '
to transfer materials); minor leaks of process equipment, storage '
tanks or containers; leaks from well-maintained pump packings and
seals; sample purgings; and relief device discharges; discharges
from safety showers and rinsing and cleaning of personal safety
equipment; rinsate from empty containers or from containers that
are rendered empty by that rinsing; and laboratory wastes not
exceeding one per cent of the flow of wastewater into the
facility's headworks on an annual basis." -
An example of why this de minimis exemption is important is
illustrated by one of ECA's plastics plants. This facility has
three surface impoundments in a CWA system that receive streams
such as cooling water, clean condensates, and stormwater. Because
of the nature of these streams, there is no need for biological
treatment Current facilities allow for the capture of any residual
plastic pellets that may be discharged and provide'hold-up time
prior to discharge (which would allow for hydrocarbon recovery.in
"case of a spill). Within the process there is a steam that is 30%
methanol and 70% water. Any drop from this stream would, at the. "
point just before it enters the wastewater system, be a D001
stream and would exceed 10 times UTS for methanol even though it
536
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was just a drop. There is always the potential that a.pump leak
could result in some drops of this material entering the .
sewer system leading to the impoundments. Without the de minimis .
clause outlined above, and with-a narrow .point of generation . -'
definition, it would be possible that the LDR Phase IV rule could
trigger extensive requirements on the surface impoundments (which
would presumably be called pre-bio since there is no significant
biological treatment) for only a few drops of material:
In addition to the example provided above, some facilities may. ' M
have minor streams, either continuous or intermittent, that do not '. ,
meet the definition of de minimis .losses indicated above. Again, to .
avoid triggering extensive requirements for low risk facilities, '
EPA should add a second de minimis exemption for characteristic . .
wastes. This exemption should be based on the condition that the.
total volume of the characteristic waste sent to the CWA system is , '
less than 1 % of the total flow at the headworks of the wastewater
surface impoundment. There should be no condition that underlying
hazardous constituents (UHC)not exceed 10 times UTS, since the
total volume of the streams is so small and the effort to quantify ;
UHC for small streams can be a substantial burden. In addition to
- " J *(
the sampling and analytical costs, the cost of establishing
sampling points in hard-piped systems can be very expensive. These
costs, in addition to the costs associated with any additional
treatment or surface impoundment modifications that might be
required, would be disproportionate to any potential environmental
benefit that could be achieved. It is important that EPA v
maintain focus on significant risk areas, versus overly regulating
low/no risk cases, where costs far exceed any slight benefit
RESPONSE ":'
' "f
The Agency is retaining the de minimis exemption previously promulgated at 40 CFR
268.1(e)(4). In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring,
that underlying hazardous constituents in decharacterized, wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiyity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these,wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges; and air
emissions from surface impoundments (EPA proposed options on Augusi: 22,1995 (60 FR
* ' ' ' '
.'''' ; ' .-537 ' .'.''
-------
I
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
; apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
538
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DCN PH4P059 . , K , . -
COMMENTER Exxon Chemicals Americas,
RESPONDER .PMC "
SUBJECT EQUV , . ,
SUBJNUM '059 ' ' ;
COMMENT .
. j. EGA recommends EPA select Option I in the Phase IV
rulerriaking. In addition, this letter includes comments applicable
to Options 2 and 3 should EPA decide to further'refine and progress
these options. . .
2. EPA should grant a general applicability exemption for Wet
Weather Flow Impoundments . ,. v
4. EGA recommends modifications to the de minimis exemption
proposed for wasiewaters in CWA systems .
. Selection of Option 1 would rely on achievement of Clean Water Act
(CWA) permit requirements and Universal Treatment Standards (UTS)
at the point of discharge from a CWA treatment system to constitute
treatment equivalent to RCRA LDR requirements. This is a defensible
option based on the decision in Chemical Waste Management v. EPA,
'- 976 F.2d(D;C. Cir. 1992), and EPA's documented statements that
"the risks addressed by this rule(from the LDR Phase HI preamble
and by extension to LDR Phase IV) ...are very small relative to the
, risks presented-by other environmental conditions or situations."
The CMA comment letter provides more detail on this issue. Summary
comments include:
When RCRA was enacted in 1976 Congress explicitly excluded from
regulation under RCRA industrial discharges subject to permits
under the CWA to avoid duplication and to recognize the lead role
of the CWA in regulating discharges to surface waters.,
EPA's proposed Phase III approach, setting treatment standards at
the discharge point of the CWA treatment system, represents
accommodation of the RCRA LDR requirements to the pre-existing CWA
program. This approach must preserve the integrity of CWA .
treatment systems while addressing the RCRA LDR program.
The proposed Phase IV rule runs contrary to Congress'intentions
' in structuring Subtitles C and D D because two of the options impose
technical requirements on Subtitle D units under subtitle C
authority. While the Chemical Waste Management decision indicated
EPA may have authority in some circumstances to set LDR treatment
standards for characteristic wastes below the characteristic level,
it did not state that EPA has jurisdiction to impose
technical requirements on Subtitle D units that are accepting no
hazardous wastes.
539
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-There is nothing in the Chemical Waste Management decision which
precludes EPA from selecting Option 1. In fact, in the court's
discussion of CWA systems there is not a single mention of sludges,
leaks, air emissions, or any other movements of constituents to
the environment, other than what exits the CWA system at its point
of discharge. Proposed Options 2 and 3 go far beyond the Court's
discussion.
EPA itself has indicated publicly that it would not oppose RCRA
legislative fixes which would not require the regulations proposed
Under the LDR Phase III and IV rules (reversing the Chemical Waste '
Management decision).
EPA is not permitted to select Option 3, which would require
treatment of Decharacterized Wastes to UTS standards before
placement in a CWA surface impoundment. This would eliminate any
reasoned or appropriate accommodation of the CWA in the LDR
program. The Chemical Waste Management decision held that
accommodation with the CWA is required "to the.maximum extent
practicable". The court also made it clear that placement . - .
of decharacterized wastes in CWA surface impoundments prior to
satisfying UTS standards was acceptable and a reasonable
accommodation with CWA. ,
EPA has overstated the risks addressed by the Phase IV proposal.
The data used is very old, often more than 10 years old, and does
not reflect current operations. CMA has provided more specific /
information on this issue .
CWA systems are currently extensively regulated by both the CWA
and numerous Clean Air Act regulations either in effect or under
development. Many facilities are already subject to MACT (Maximum
Achievable Control Technology) standards and other standards
under various Clean Air Act authority. For example, chemical
manufacturing facilities are often subject to the HON (Hazardous
Organic National Emission Standards for Hazardous Air pollutants),
the Benzene NESHAP rule, the Offsite Waste Recovery MACT standard,
and/or by the Wastewater New Source Performance Standard. Typically
these regulations result in managing wastewater emissions prior to .
treatment in surface impoundments due to the significant cost
associated with covering and controlling emissions from these <
impoundments, which can be several acres in size. EPA's proposal to
extend the applicability of the new Subpart CC RCRA air emission .
standards to nonhazardous waste surface impoundments
is inappropriate and not justifiable. The current Subpart CC rule
has major deficiencies which are currently under review and legal
challenge. .
540
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2. EPA should grant a general applicability exemption for Wet
Weather Flow Impoundments < ' '
Many petrochemical/refinery facilities, as well as other large
industrial complexes, utilize integrated sewer systems in which
both process wastewaters and storm waters are managed in the same .
collection system. Wet weather flow impoundments (surface
impoundments) are commonly used in integrated sewer systems to
temporarily store excess water during storm events..The water
diverted to these impoundments is then either transferred to a . :
wastewater treatment system at controlled rates or directly
discharged through a permitted system.
EGA recommends that wet weather flow impoundments, which are a key
. to the efficient operation of a facility's wastewater management
system, be exempt from the LDR Phase IV regulations because of
their low environmental risk and the significant cost of replacing
and/or closing the impoundments.
..Wet weather flow impoundments pose an inherently low environmental
risk since: .
Underlying Hazardous Constituents (UHCs) in the wet weather flow
impoundment influent have the potential to exceed Universal
, Treatment Standards (UTS) only for very short periods of time. Such
exceedances may occur during the beginning of a storm event when
the proportion of process wastewater to storm water is greatest.
Peak storm event flows .will be primarily stormwater .with the result
that the flow weighted average concentration of UHCs in
the impoundment influent during a storm event will be significantly
below UTS levels, .
Wet weather flow impoundments are generally at minimum levels, so
the residence time.of any UHCs present is short. This further
.reduces the potential for leakage to groundwater and air emissions.
Wet weather flow impoundments are critical to the efficient
operation of a facility's wastewater management system by providing
temporary storage capability so that the large amounts of
water managed during a storm event will not flood the wastewater
treatment system. In a biological treatment system, a hydraulic
overload will reduce organic removal, efficiency and cause
the exceedance of total suspended solids effluent limits. . ' '.
Closing and replacing wet weather flow impoundments would be
prohibitively expensive. At one Exxon facility these .impoundments
cover more than 25 acres. The actions necessary would include one
or more of the following steps:
Significantly enlarge the capacity, of the wastewater transfer
system downstream of the point where wet weather flow is currently .
541
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; ' diverted to the impoundments and enlarge the treatment system ' -
capacity to manage peak flows that will occur only.during storm
events. l . *
Replace the impoundments with a tank storage system capable of
. managing large volumes of combined process wastewater and '
stormwater. . . ,
Segregate the process wastewater from stormwater. This would be ' .
prohibitively expensive due to the size and location (under
^operating units) of sewer systems in well-established . .
industrial complexes. ~
Based on these points, EPA should grant a general applicability -
exemption for wet weather Flow Impoundments. .
RESPONSE / - -' " _ "
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous 'constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized ,
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As .
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR.15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments,(EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated.by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ; '
542
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DCN PH4P059 . . ' ' ,
COMMENTER Exxon Chemicals Americas . .
RESPONDED SS
SUBJECT EQUV . - ' . .
SUBJNUM 05? ' ' ' ' '
COMMENT . ' .-":.'-' :> -.
6. EC A recommends that the LDR Phase III and IV rules be .
progressed only after integrating comments from both rules,
finalizing the Point of Generation definition, providing regulatory >
.text, and integrating the Hazardous Waste Identification ' ,, ' ,
Rule impacts and timing .
RESPONSE: ' . - - ' ' '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the ,
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Wate'r Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no, longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing"leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)).Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. '.;" !
\ ' "* .. '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
resultln proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .,
Although the Agency cannot predict exactly how the constituent-specific exit levels for certain
low-risk solid wastes in the.HWIR final rule will compare with the UTS levels, the Agency did '
consider available risk information when making decisions regarding final treatment standards in
the technology-based LDR program. During the development of final treatment standards, the
Agency examined whether the UTS for some metals may be far more stringent than any .
reasonable minimize threat level. The initial reasoning was that if the Agency found evidence
that the final HWIR minimize threat level was likely to be much higher than the proposed UTS
for any toxic characteristic wastestream, EPA would consider whether to raise the proposed
' .-'' . ' ' ' 543 ' - ' '''.'.... . '
-------
treatment standard prior to finalizing the Phase IV rule. EPA examined the proposed HWIR exit
levels for the toxic metal wastes including in the Phase IV rulemaking. When EPA compared the
proposed HWIR exit levels to the UTS for each metal constituent, the Agency found that the .
BDAT. level was, in most cases, within an order of magnitude of the proposed HWIR exit level.
There were significant differences between the proposed HWIR exit level and UTS for two"
metals, and . As discussed in section of the preamble to the Phase IV final
rule, [need to complete once preamble language is written]
" " " ^ '
In light of the differences in timing between the HWIR and the Phase IV final rule, there is too
much uncertainty about what the final HWIR levels will be to incorporate those levels into the
UTS for any .constituents. Section 3004(m) of RCRA requires that the Agency promulgate
treatment standards that specify levels or methods of treatment that "substantially diminish the. -
toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents
from the waste so that short-term and long-term threat? tn human health and the environment are
minimized." The proposed HWIR levels have not '
yet been established as "minimize threat" levels. Therefore, EPA is promulgating the Phase IV
rule arid the HWIR rule independently. EPA will address any differences between the UTS and
the HWIR exit levels either in the final HWIR rule or once both rules are promulgated.
544
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DCN PH4P060 .-.."_'
COMMENTER American Dental Association
RESPONDER PMC ,
SUBJECT EQUV
SUBJNUM 060
'COMMENT ' - . ' ' *.. . . - '
In general,-ADA believes of the three options presented in the
. . Notice, the use of existing programs is the preferred means to
address non-hazardous surface impoundments. Such an approach would
avoid unnecessary costs to impacted parties, which include the many
. small businesses and other entities whose wastes are. treated.
at such facilities. ADA also believes that .the proposed regulations
regarding surface impoundment sludge have not been shown to be
necessary as a legal and practical matter. In addition, ADA urges
EPA, in this and other regulatory contexts, to ensure that any new
,. treatment standards for toxic characteristic metal wastes account
- for differences.among specific metal substances, and differentiate
appropriately among different metal species. - -
As an initial matter, ADA's review pf the.proposed regulations
indicates that they would leave unchanged the existing special
requirements for conditionally exempt small quantity generators -
(CESQGs) in 40 C.F.R. 261.5. Accordingly, waste from
such generators that is considered hazardous would not be
implicated in the proposed surface impoundment controls or
treatment standards if the CESQG treats or disposes of its
. waste through means authorized by 40 C.F.R. S 261 <5 but by means
other than a facility subject to the proposed regulations.
With respect to the proposed regulations regarding decharacterized .
wastes in surface impoundments, ADA supports the first of the three
regulatory options presented. As discussed in the Notice, EPA is
. already equipped with a number of regulatory tools to address
: potential releases from surface impoundments. Although not stated
in the Notice, these tools include the 40 C.F.R. Part 503
regulations regarding biosolids use and Disposal. Use of existing
\ federal and state programs would avoid needless complication of the
already complex regulatory environment regarding wastewater and
solid waste. Such an approach would help limit compliance costs for
, the many entities (many of them small businesses) whose waste
materials are treated at surface impoundments.
ADA's review of the proposed Option 2 regulation indicates that.
wastewater containing only de minimis quantities of characteristic
waste would be exempted under proposed 40 C.F.R. 268.1(e)(4)(ii). .
60 Fed. Reg. 43691. However, the exact meaning and scope of this
545
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exemption as currently drafted is not clear. ADA requests that .
- EPA clarify this language, particularly with regard to flow .
requirements at a surface impoundment, and with regard to whether
the reference to the 40 C.F.R. 268.48 limits is an additional or
alternative criteria for the'de minimis exemption. ,
Even aside from"these concerns, ADA notes that.the Notice includes . ,
s little if any discussion regarding health or environmental risks
associated with pre-biological sludge. ADA is particularly
concerned regarding the'potential for new sludge regulations to
result in restrictions or burdens on use of amalgam, even though
the only data on this issue found no detectable soluble mercury '
when amalgam paniculate was subjected to a simulated wastewater
treatment processing. This study was performed under contract .
with the ADA and has been submitted for publication."ADA urges EPA
to fully demonstrate actual risks presented by sludge disposal
, before proceeding with any new regulations in this area.
RESPONSE : . N
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655)!. Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine, any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may ,
result in proposed regulations for these units, if risks are in fact found that would warrant such_
regulation. x
546
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DCN PH4P061 . .
COMMENTER BP Chemical
RESPONDER SS . ,
SUBJECT EQUV . - '. , . '.''-
' SUBJNUM .061 . ' ' - ' '-''.-
COMMENT 3) BP Chemicals believes that the decharacterized wastewaters ' '
managed in.C WA surface impoundment's and disposed in UIC wells .
are very low risk wastes and urges the Agency to adopt "Option
T'^as the Phase IV.rulemaking approach. BP Chemicals believes'
that the risks posed by decharacterized wastes and the units .
managing these wastes are very low. This is especially true for
the streams managed in class 1 underground injection control :
units where there is virtually no exposure to the underlying . .
hazardous constituents in the wastes. In the preamble and in
testimony before Congress, they Agency has .clearly indicated .
that they also believe the risks are low relative to other more
pressing environmental issues. Furthermore, for the reasons
stated above in comments 1 and 2, BP Chemicals believes the risk -
screening analysis conducted to support this rule significantly .
over estimates the potential risks posed by these wastes.
Therefore, we strongly urge the Agency to adopt "Option 1" as . ' >>:
the approach for regulating these units. This option relies on .
Phase III to address" decharacterized wastes and defers to other
Agency programs to address potential releases from these
nonhazardous units. We .believe adequate controls currently exist
on these units. All of the nonhazardous units at BP Chemicals .
sites receiving potentially decharacterized wastewaters are ,
subject to State Subtitle D requirements (Ohio and Texas), Clean
Air Act HON NESHAP and/or Polymer & Resin MACT Standards, and
RCRA Corrective Action. Existing controls are clearly in-place ., .( j
and potentially confusing duplicative rules are not needed. .
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that -
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate-provisions for managing leaks, sludges, and air
547
-------
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)); Furthermore, the treatment standards ibr TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . , . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these'
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
548
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DCN PH4P061
COMMENTER BP CHEMICAL
RESPONDED SS '
SUBJECT EQUV
SUBJNUM 061 .
COMMENT 5.) Class I UIC wells with approved no migration petitions
should not be required to modify their petitions to account for
'the underlying hazardous constituents in decharacterized waste
streams. To do so would create an unnecessary burden on both the . .
reguiatoiy community and the Agency with no resulting benefit to
. the health or the environment. 6) EPA should clarify in the . '
Phase IV rule that Class I injection wells with approved no .
migration exemptions are given an exemption for the injection of .
decharacterized wastes. 7) Addition of waste* codes to a no
migration petition for newly listed wastes should be considered .
a nonsubstantive revision. , .
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
, environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655)^ Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrdsivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which.provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment'standards for these wastes (61 FR 15660). '
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, th£ Safe
"- -!- W«.+. A^t .'"."'.' . ' -
Drinking Water Act.
J^1A1IJ(V4A«^ .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. -
. -EPA clarifies that, as a result of withdrawing the proposed provisions, generators with
decharacterized wastewaters that are managed by injection into Class I non-hazardous injection
wells do not have to identify underlying hazardous constituents.
549
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The commenter suggested that EPA state that additional of waste codes to a no-migration
petition should be considered a non-substantive revision. This issue is outside the scope of the
Phase IV rules. The commenter should contact the USEPA Office of Water.
550
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SDCN PH4P061 -.''.
COMMENTER BP CHEMICAL .
RESPONDER SS '
SUBJECT EQUV ' ;
SUBJNUM '061 ' . ...
COMMENT 5) Class IUIC wells with approved no migration petitions
should not be required to modify'their petitions to account for
the underlying hazardous constituents in decharacterized waste
, streams. To do so would create an unnecessary burden on both the.
regulatory community and the Agency with no resulting benefit to
health or the environment. In 1993 EPA and CMA agreed to settle
a lawsuit regarding land disposal restriction issues by signing
a settlement agreement, or Joint Stipulation, .whereby facilities
with no migration exemptions that do not change the waste stream
injected will not be affected by LDRs which affect
decharacterized waste.' Thus, not only does EPA have the
authority, but the Agency has already committed to allowing
facilities, with no migration exemptions to. be exempt from
., further,ruture regulations. In the final Phase IV rule EPA
should clarify the status of Class I UIC wells with no migration
(exemptions because the Joint Stipulation clearly directs that
EPA is to allow: "characteristic wastes that cease to exhibit
the characteristic prior to injection into Class I wells with
Agency-approved no-migration exemptions, regardless of whether
the applicable waste codes 'ft* the characteristic are specified
; in the final petition's approval. No further demonstration would
be required for characteristic wastes that are rendered . ' [
: nonhazardous prior to injection absent the introduction of a new
constituent no already considered in the demonstration."
(emphasis added) The Phase IV proposal will result in the need
i " for facilities to modify petitions even though the injected
. waste has not changed and the waste at the point of injection is
not characteristically hazardous. EPA can prevent confusion and
misdirected use of public and private moneys and resources by
making it clear in die final rule that the LDRs are not ,
applicable to Class I wells that inject decharacterized wastes
and that have obtained no migration exemptions. Approved
petitions have already addressed the potential for migration of
hazardous constituents from the injection zone. As a result,
there is no impact on human health or the environment. The
change proposed in the applicability of treatment standards to
waste streams already described in the no migration petitions
does not affect the technical basis for the petition approval.
551
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I
This type of situation was contemplated and both the CMA and EPA . . ,'
agreed that petition modifications would not be required. 6)
EPAshouldclarify in the Phase IV rule that .Class I injection J
wells with approved no migration exemptions are given an -
exemption for me injection of decharacterized wastes. As
discussed above, the Joint Stipulation is rather clear in that
LDRs do not apply to decharacterized wastes injected at
facilities with approved no migration exemptions. The agreement .
states, "No further demonstration would be required for -
characteristic wastes that are rendered nonhazardous prior to .
injection absent the introduction of a new constituent not
. " already considered in the demonstration." We ask that EPA
clarify this exemption in the final rulemaking. 7) Addition of ,
waste codes to a no migration petition for newly listed wastes
should be considered a nonsubstantive revision. There may be
times when a facility with an approved no migration exemption
injects a newly listed waste or characteristic waste that is riot
decharacterized prior to injection. In this situation, although
the waste is fully characterized in the petition, the new waste /
codes are not EPA has preferred to have no migration petitions
identify all waste codes that apply to the waste at the point of . :
injection. This situation is merely a paperwork change that does.
not raise new technical issues or require very detailed review. ,
The technical basis for the petition approval has not changed. .
The Agency should clarify in the final rule that addition of . ' ' .
waste codes to an approved no migration petition is a
nonsubstantive revision. .
, . ! ,
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems ,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
552.
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Drinking Water Act. - ' ;
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks po'sed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may,
result in proposed regulations for these .units, if risks are in fact found that would warrant such
regulation. . . s
The commenter suggested that EPA state that additional of waste codes to a no-migration
petition should be considered a non-substantive revision. This issue is outside the scope of the
Phase IV rules.' The commenter should contact the USEPA Office of Water.
553
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DCN PH4P061
COMMENTER ,BP CHEMICAL
RESPONDER MC
SUBJECT EQUV ' J ,
SUBJNUM 061 , ,
COMMENT 3) BP Chemicals believes that the decharacterized wastewaters .,
managed in CWA surface impoundment's and disposed in UIC wells
are very low risk wastes and urges the Agency to adopt "Option ,
1" as the Phase rVrulemaking approach. .
RESPONSE ; , ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the . -.
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by.the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which intially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from'land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ,.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by.the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
554.
-------
DCN PH4P061 , .
COMMENTER BP CHEMICAL
RESPONDER MC ,
SUBJECT EQUV ,
SUBJNUM ,061 '...';
COMMENT 8) BP Chemicals supports the EPA1 s approach of exempting
wastewater impoundment's located at permitted TSDF's from the
Phase IV management standards. . .
RESPONSE. . : :
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems'
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655)! Decharacterized
wastes are wastes which intially exhibited a hazardous characteristic of ignitability, cprrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on< April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks,'sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's nile do not
apply to TC, metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe -
Drinking Water Act. . -, '
' " v .'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may ,
result in proposed regulations for these units, if risks are in fact found mat would warrant such
regulation. . '. . . . ,
555 ,
-------
DCN PH4P061
COMMENTER BP CHEMICAL
-------
DCN PH4P063 '--'.'.-
COMMENTER Laidlaw. x
RESPONDER PMC :
SUBJECT EQUV - ,
SUBJNUM 063 ."/ ' .- '
COMMENT '..... , . '
. 1.0 Management Standards for Air Emissions ' . .
Laidlaw Environmental Services, Inc. (LES) generally supports
EP A's approach of extending the substantive requirements of Siibpart
CC 'regulations to surface impoundments in CWA, CWA-equivalent or
nonhazardous wastewater treatment systems that accept wastes that
have been decharacterized. We also believe mat it is reasonable to ,
not require facilities subject to Clean Air Act (CAA) standards
v for hazardous air pollutants to be subject to controls under this
ruleniaking, so long as the applicable CAA standard has been
promulgated in final form, the standard addresses the specific
underlying hazardous constituent(s) of concern, and the standard
contains control requirements at least as stringent those proposed
, in this rulemaking. . ',
While we believe that the application of the Subpart CC
requirements will achieve the goal of minimizing cross-media
transfer of pollutants, we are concerned over the manner in which
EPA is addressing this issue. The technical provisions of the
Subpart CC standard, which is the cornerstone for addressing air
emission control under Phase IV, are not only in a state of flux,
but are the subject of a number of legal challenges by industry and ,
environmental groups. In addition, the Offsite Waste NESHAPS
rule, which was proposed in October 1994 arid contains provisions
almost identical to Subpart CC, has yet to be finalized. Add to
this the fact that the Agency included within the preamble, .
discussion of various "concepts" for implementing the requirements,
but failed to include specific regulatory language, and you have
a situation in which the regulated community has very little in the
way of "substantive"proposals upon which to comment. While it is .
recognized that the Agency has been working under specific time
.constraints, it must allow for adequate public comment on proposed
rules. It is recommended that once the Subpart CC provisions have
been fully"fmalized," the Agency, publish a supplemental proposal
outlining the specific provisions for controlling air emissions :
from surface impoundments managing decharacterized waste.
In developing the air emission control requirements for surface
impoundments, The Agency must be cognizant of several key issues:,
557
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1. Waste Determination Procedures
The discussion in the preamble to the proposed rule does not
specify the analytical method to be used to make waste
determinations, although the reader can infer that the method(s) of
choice would be those required by Subpart CC. The preamble also,
discusses that facilities which are subject to other CAA standards,
in particular the Offsite NESHAPS, would not be subject to
the provisions in this proposal. Waste determination is critical to
both Subpart CC and the Offsite NESHAPS; it determines whether or
not a facility is 'subject to the technical requirements of the
rules. Currently, the procedures utilized in these two rules, while
similar, are substantially different. The Agency must be careful to
craft the requirements of the Phase IV air emission standards so
as not to subject the regulated community to an overlapping, and
confusing, set of regulatory requirements. To this end it is
recommended that the Agency unify the waste determination
procedures for the Offsite NESHAPS, Subpart CC and the Phase IV air
emission requirements. .
2. Regulatory Threshold
In its comments on the proposed Subpart CC standards, LES
supported The Agency's determination of a 500 ppmw threshold for
applicability of the technical requirements of the rule. In the
final Subpart CC rule, this threshold was lowered to 100 ppmw. LES
does not believe the Agency has adequately demonstrated the
justification for this action. In the Phase IV proposal, The Agency
has applied the 100 ppmw threshold as the determinant of whether
or not a particular unit is subject to the control requirements.
LES does not believe that the Agency has adequately justified the
application of the 100 ppmw threshold to wastes managed in
non-hazardous surface impoundments. It is recommended that the EPA
apply the threshold level of 500 ppmw that was originally proposed
in the Subpart CC rule.
3. Surface Impoundment Covers
In the proposed rule, EPA discusses the use of ah- supported
structures and membrane covers as potential methods for controlling ,
.air emissions. While these types of controls may be technically
feasible, there are worker health and safety concerns that must be
addressed. Covers placed on or around these impoundments would have
the tendency to concentrate the vapors given off from the
impoundment within the headspace beneath the cover. Has the
Agency considered the impact of exposure of the employees working
in and around the covered impoundments to the concentrated vapors
in its risk analysis? At minimum, the Agency should consider .
558
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" ., specific OSHA confined 'space and personnel protective equipment .
requirements. Are these technical controls ones that OSHA could
support given the potential risks to workers? .
Finally, LES supports EPA's,use of the alternative control device
requirements of demonstrating either a 95 percent reduction in the '
total organic content of the, vapor stream vented to the control
' device or,'in the case of an enclosed combustion device, I
a reduction of the vapor stream to a level less than or equal to 20
ppmw on a dry basis corrected to 3 percent oxygen. This will .
. provide the regulated community with me flexibility needed to , . ;
comply with the rule while providing adequate protection of human -
health and .the environment. It is recommended, however, that the
,20 ppmw option not be limited to enclosed combustion devices but be
expanded to other types of control devices (e.g., activated !
. carbon). :,
RESPONSE , :
. In the August 22,1995 Phase IV,propbsal, EPA discussed three options for ensuring that "
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are. wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
. emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)).xFurtherinore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . ',,"''
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any. potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,,! 996, may ,
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . ' '-..
559
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r
DCN PH4P064 , . ' . .
COMMENTER Dow Chemical ' ' .
RESPONDER PMC
SUBJECT EQUV:
SUBJNUM- '064 '
COMMENT ,
I, EPA SHOULD SELECT OPTION 1 FOR PHASE IV LDR RULEMAKING
The Chem Waste decision does not mandate that EPA set standards
, for non-hazardous waste surface impoundments handling
decharacterized non-hazardous wastes. ..''.'.
As a result of the Chem Waste decision (Chemical Waste Management
v. EPA, 976 F. 2d 2(D.C.Cir. 1992)), EPA was required to set
treatment standards for prohibited decharactenzed hazardous wastes
which are managed in Clean Water Act (CWA) facilities. The Phase
III Land disposal Restriction rule was proposed in response to this
mandate and satisfies the mandate of the Court ruling. Dow does
not agree that the court decision extends beyond the Phase III , ,
rule to require creation of a set of regulatory standards for
non-hazardous waste CWA surface impoundments. The court stated
. that "we agree with the EPA that, under RCRA, diluted formerly
characteristic wastes may be placed in Subtitle D surface
impoundments which are part of an integrated CWA treatment train"
Id. at 22. The Court also said: "Thus we hold that, whenever
wastes are put in CWA surface impoundments before they have been
treated pursuant to RCRA'to reduce the toxicity of all hazardous
constituents, these wastes must be so treated before exiting the
CWA treatment facilities." Id. at 22. These statements illustrate
that the focus
of, the Chem Waste decision was to require that decharacterized
wastewaters meet the land disposal restrictions at the point where
the wastewaters exit the CWA treatment facility. Furthermore,
Subtitle D surface impoundments can be used as long as they are
part of a CWA-regulated treatment system. The Court's ruling does
not in any way specify that Subtitle D surface impoundments be
modified to meet a Subtitle C management standard. Instead, .
the court's stipulation was that decharacterized wastewaters be , '
treated to a level such that the, NPDES discharge was equivalent to
RCRA LDR treatment standards.
Creating management standards for non-hazardous waste CWA surface
impoundments would violate the intent of Congress and
inappropriately expand Subtitle C authority tonon-hazardous waste
facilities.
RCRA Subtitle D was established under RCRA as the mechanism by
560
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. which non-hazardous facilities are regulated, primarily by the
states. It is inappropriate and contrary to the law to
create technical standards under Subtitle C for management of
non-hazardous wastewaters. Such standards would impose extensive
RCRA requirements on low-risk units and create a very real economic ,
hardship for those who currently are in compliance with all Clean
Water Act requirements. Congress did not intend for this to happen . . '
or they would have required EPA to regulate both hazardous and
non-hazardous waste management units in the same way.
Phase IV concerns are properly and sufficiently addfessed,by other
regulatory authorities. ^
RCRA is not the only vehicle for addressing the concerns raised by
EPA in this Phase IV rule. There are many other rules in place that
provide environmental safeguards and eliminale the need for
additional regulation of non-hazardous waste CWA surface
impoundments. , ' ' . _
The potential for leaks from non-hazardous waste impoundments are
addressed in several ways. Corrective action programs are required
for all RCRA-permitted of interim status hazardous waste treatment,
storage, and disposal facilities (TSDF). These programs require
specific plans to evaluate and address any contamination from solid
waste management units on the property whether the unit is
hazardous or non-hazardous. Additionally, there are various state
prohibition son releases to groundwater (Texas) and numerous state
Subtitle D programs. As an example, the Louisiana Solid Waste
Amendments (1993) require a synthetic liner with leachate
collection for new solid waste impoundments. Groundwater .
monitoring is required for both new and existing units with
requirements for remediation if contamination is detected. These
state regulations also exempt systems which function similarly to
those described in LDR Phase IV as tertiary impoundments (e.g., pH
adjustment).
Should EPA adopt Option 2 fro" LDR Phase IV, Dow agrees that such
impoundments located at a permitted or interim status TSDF should
not have LDR Phase IV requirements. : .
Dow strongly supports the EPA position that impoundments located .
at TSDFs would have ho further controls under LDR Phase IV. This.
is an important recognition by the agency that corrective. action
requirements under RCRA will adequately address Phase IV issues
for non-hazardous waste CWA surface impoundments. Subsection u, of
the Solid Waste Disposal Act states: .
Standards promulgated under this section shall require, and a
permit issued after the date of enactment of the Hazardous and
'561
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.Solid Waste Amendment of 1984 by the Administrator or a State shall
require, corrective action for all releases of hazardous waste
o/constituents from any solid waste management unit at a ' '
treatment, storage, or disposal facility seeking a permit under
this subtitle, regardless of the time at which waste was placed' in ,
the unit. . ,
RCRA corrective action program requires an interim status or
permitted facility to (1) identify all solid waste management
units, (2) determine if a release has occurred and its
nature/extent, (3)addfess the clean up of contaminated media, and
(4) incorporate the final solutions into a Compliance Plan. These
measures ensure that any risk associated with a unit
including non-hazardous waste CWA surface impoundments are
addressed and minimized. EPA does not need to add another layer of
regulation to this already comprehensive corrective action
program arid should exempt units at TSDF.facilities from Phase IV
LDR should Option 2 be adopted.
Should EPA choose to adopt Option 2 for LDR Phase IV, then a
proposed rule must be published for notice and comment.
EPA has not written any language for this rule (which Dow believes
was appropriate since Option2 should not be adopted), however,
this makes it very difficult to comment on the potential impact to
non-hazardous waste units. If EPA chooses to promulgate a Phase
IV rule based on Option 2, it must first propose actual language
that can be thoroughly evaluated by the regulated community. Also,
EPA must wait until Phase III is final before proposing any Phase
IV language. Both proposals are interrelated and the direction for
LDR Phase III must be fully known in order to assess potential
impact to Phase IV units from any proposed regulatory language.
To adopt Option 2, EPA must propose specific language and then only
after LDR Phase III rules are final hi order to comply with EPA's
notice and comment requirements.
Subpart CC is currently undergoing extensive revision and should
not be evaluated for inclusion in this rule until all the changes
to the* rule have become final. :.
The Subpart CC standard, although promulgated, is still undergoing
extensive debate and significant revisions are anticipated in the .
near future. It is inappropriate to be advancing a management
scenario in the midst of such controversy. EPA should reexamine
Subpart CC after all changes are final to determine if these
requirements are justified for non-hazardous waste surface
impoundments. At a minimum, EPA should not reference Subpart CC
requirements as a control mechanism for Phase IV until after all
562
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Subpart CC changes are final. v ' .
" Should 'EPA select Option 2 and extend the applicability of RCRA
Subpart CC, then it is requested that the applicable standards be
taken from 40 CFR Part 265-and not 40 CFR Part 264.
Dow is concerned that the reporting requirements under Subpart CC
for non-hazardous wastewater CWA surface impoundments are more
stringent than those reporting requirements for RCRA interim status
or <90 day hazardous waste surface impoundments. In the Phase f
IV proposal, EPA discusses reporting requirements and references
the Part 264 requirements under Subpart CC (60 FR 43666). These
requirements would require reporting'in certain circumstances for
non-hazardous waste surface impoundments, however, RCRA interim
status or <90 day. hazardous waste facilities do not have any
reporting requirements under 40 CFR Part 265 Subpart CC. It is.
unreasonable for EPA to require reporting for non-hazardous .-
wastewater surface impoundments when RCRA interim status and
<90rday hazardous waste facilities are exempt from such reporting
under Subpart CC (especially since EPA agrees that these units are
low risk).In order to rectify this inequity, EPA should reference
the Part 265 standards of Subpart CC rule if used for the Phase IV '
rules. ' .
Should EPA adopt Option 2, Dow urges EPA to accept alternative
programs by states or other authorities as a whole and not
line-by-line or constituent-by-constituent comparison. '
At 60 FR 43671, EPA states that "to the extent .that state programs
require ground water monitoring and corrective action that include
the UTS constituents of concern and are substantially similar to
today's proposal, EPA is deferring to those State and Tribal
programs."EPA further describes that where there are differences, 7
a facility may need to modify the existing ground water monitoring
program. Such micro management of minor differences
between programs is both burdensome and confusing to the regulated
community and is particularly inappropriate when considering the
low risk presented by these Phase IV facilities. EPA should defer
to the alternative programs in their entirety.
Should EPA choose.Option 2 for LDR Phase IV, Dow agrees that a
two-year national capacity variance is appropriate but requests
that the additional two years for retrofitting also be available to
facilities that choose to discontinue receiving " '
decharacterized wastewaters.
At 60 FR 43663, column 1, EPA discusses the two-year national
capacity variance and a self-implementing procedure for two
additional years. Dow appreciates the self-implementing procedure
563
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:that EPA is proposing. However, Dow believes it is necessary for
the agency to allow the additional two years for facilities that
choose to discontinue placing decharacterized wastes into a surface
impoundment but may need the two additional years to accomplish
the transition. EPA is allowing such a time frame for facilities :
that choose to continue receiving idecharacterized wastewater but
need the additional time to complete the retrofit. Furthermore,
the more time that is provided, the more likely source reduction
can be implemented as opposed to treating the wastewater or
retrofitting the impoundment Dow recommends that EPA grant an
additional two years for facilities that stop receiving
decharacterized wastewater after the promulgation date. .'
Should EPA choose Option 2 for LDR Phase IV, they should recognize
that sludges and leaks from non-biological treatment and
post-treatment systems can also be low risk.
At 60 FR 43660, EPA states that sludges and leaks from
biotreatment and post-biotreatment systems would not be covered by
, Phase IV due to the lower risks posed by these units. Dow agrees
that this exemption is appropriate, however, we believe that there
are other types of units that treat wastewater prior to placement.
in a surface impoundment which likewise achieve effective removal ,
of constituents. These units are air strippers and steam
strippers used to remove .
HAPs or VOC from wastewater. They achieve a significant removal
efficiency of volatile organic compounds, In fact, steam strippers
are considered to be the reference technology for Group
1 wastewater streams under the HON. The wastewater from these
non-biological treatment units is generally of discharge quality
and probably already meets NPDES limits for specific
constituents, however, they may send the water to tertiary
impoundments for cooling. Since these units are similar to
biological units in terms of risk, EPA should exempt those surface
impoundments that are downstream of air strippers and steam
strippers from the Phase IV requirements.'
III. OPTION 3 MUST NOT BE ADOPTED AS THE MECHANISM OF
COMPLIANCE FOR PHASE IV,
Option 3, which requires treatment of decharacterized wastewater
to UTS limits prior to placement in a Subtitle D surface
impoundment, is not mandated by the Chem Waste decision and should
not be adopted by EPA. It would be extremely costly and provide
only minor environmental benefit. ^
RESPONSE
. ' . ' ...564, .
-------
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring'that
underlying hazardous constituents in decharacterized wastes were not released to the > -
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water. Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes, which initially exhibited a hazardous characteristic of ignitability^corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes'in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC irietal wastes in today's rule do not
apply "to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act, . , . .
However; the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments; The findings of this study, begun by the Agency in April, 1996; may .
result.in proposed regulations for these units, if risks are in fact found that would warrant such ,
regulation. *
565
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DCN . PH4P065 ' ., ,
COMMENTER Safety-KIeen Corp.
RESPONDER SS . -"","
SUBJECT EQUV
COMMENT 1. Safety-KIeen encourages the Agency to address the Phase III
and Phase IV LDR rulemakings concurrently, with a common
promulgation and implementation schedule. EPA has acknowledged
that it did not have time to review the comments submitted on
the Phase III LDR proposal prior to'publication of the Phase IV ,
LDR notice of proposed rulemaking. Safety-KIeen believes that
the comments submitted on the Phase III proposal will strongly
* influence the Agency's actions and decisions on this Phase IV
proposal. Safety-KIeen agrees with the Agency's statement that.
"[djecisidns on controlling releases will be made after careful
consideration of public comments on both.proposals (60 FR
43655/2)." Furthermore, Safety-KIeen believes that careful
evaluation of the Phase IV comments will enhance the Phase III
rulemaking. Clearly, the Phase HI and Phase IV rules affect
highly similar facilities and are "sister" regulations. However,
the currently anticipated promulgation schedules differ by
several months, which will result in staggered implementation
. deadlines. This may-cause confusion in the regulated community
(e.g., which rule applies at which time), and may result in ;
additional and unnecessary burdens (e.g., the cost and training
requirements for changing the content and format of the LDR
notification form multiple times within a year). Safety-KIeen
encourages the Agency to promulgate the Phase III and Phase IV
regulations simultaneously, in order to simplify the
implementation process for the state agencies and the regulated
comrnunity, and to enhance facility compliance.
RESPONSE .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). becharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or tbxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
566
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Today's Phase IV-fmal rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)X Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells,,the Safe
Drinking Water Act. ~ :
.. ' / . - '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . :
567
-------
DCN . PH4P065 '' ...'.',
COMMENTER Safety-Kleeri Corp.
RESPONDER SS .
SUBJECT EQUV . . .
COMMENT 4. Safety-Kleen has significant'concerns about the approach
taken in the Phase IV proposal to addressing emissions from
non-hazardous surface impoundments. The Agency should defer to
the Clean Air Act (CAA) to address emissions from non-hazardous
waste surface impoundments. The Agency has already developed
numerous regulations that limit air emissions from non-hazardous
: waste surface impoundments, and still others are in development.
Safety-Kleen encourages the Agency to defer to existing
requirements under the Clean Air Act, and to refrain from .
creating further duplicative and overlapping air emission
requirements under RCRA. Safety-Kleen believes that imposing air
emissions requirements under Phase IV would not significantly
reduce emissions and would not have any beneficial effect on
human health and the environment. Emissions of hazardous air
pollutants (HAPs) are already subject to extensive regulation
under Section 112 of the Clean Air Act (CAA). Section 112
requires EPA to promulgate emission standards for industrial
source categories with respect to nearly two hundred emission
. standards for industrial source categories, establishing Maximum
Achievable Control Technology (MACT) for such categories. The
following CAA regulations currently or will soon impose HAP
emission restrictions on non-hazardous waste surface impoundment
operations: Hazardous Organic National Emission Standards for
Hazardous Air Pollutants (HON), promulgated on April 22 1994 (59
FR 19402); Benzene NESHAP, promulgated on January 17,1993;
Off-Site Waste and Recovery Operations MACT, proposed October
13,1994 (59 FR 51913); and MACT standards for other industrial
categories (including production, manufacturing, and
distribution source categories), promulgated, proposed, and
anticipated according to the statutory requirements of Section
112 of the CAA, These regulations place stringent controls on
the emission of hazardous air pollutants from industry
operations. Because regulations promulgated under Section 112
are designed to address all major sources of HAPs within the
relevant source category, there is simply no need to impose
duplicative requirements under RCRA The provisions of the Clean
Air Act.goveming nonattainment areas ,(CAA Sections 171 through
193) may also overlap with the proposed RCRA air emissions . : .
requirements. Those requirements impose restrictions (including
568
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.the use of Reasonably Available Control Technology, or.RACT) on
the emissions from existing major-air pollution sources in areas
that have not attained established air quality standards. The
EPA has released Control Technique Guidelines establishing RACT
for many industrial operations. Finally/new or modified
facilities may be subject to several requirements, as discussed
below. For certain industries, EPA has promulgated New Source
Performance Standards(NSPS) underCAA Section 111, imposing
specific requirements on all facilities within the industrial :
category. For areas in compliance with air quality standards,
. CAA Sections 160 through 169, governing Prevention of
Significant Deterioration, require new or modified sources to
install the Best Available Control Technology (BACT). For
nonattamment areas, CAA Sections 171 through 193 require new
and modified sources to apply the technology that achieves the
Lowest Achievable Emissions Rate (LAER). Under the Phase IV
regulations as proposed, a facility could become subject to both
CAA and RCRA regulations addressing similar air emissions but
with different regulatory requirements (some facilities are
already, subject to multiple and^contradictory regulations
governing air emissions). Safety-Kleen strongly objects to a
regulatory scheme that creates situations of contradictory
regulation at a given facility. Safety-Kleen therefore urges ',
-the EPA to address the control of air emissions through CAA
authority as opposed to generating separate RCRA-authorized
regulations. The Agency should not impose RCRA Subpart CC
organic emissions regulations on non-hazardous waste surface
impoundments. Safety-Kleen believes that extending the
applicability of the Subpart CC RCRA air emission standards to
non-hazardous waste surface impoundments is neither appropriate
nor justifiable. The Subpart CC regulations are applicable to
certain hazardous wastes. However, the impoundments proposed to
be regulated under the Phase IV LDR rule manage only
non-hazardous ("decharacterized") wastes. Therefore, Subpart CC ,
should not apply; The Agency has acknowledged that the RCRA
, Subpart CC regulations promulgated in December, 1994, have
significant flaws and require modification prior to
implementation. There have been numerous legal challenges to
the Subpart CC regulations, and the effective date of the rule
has twice been delayed because major issues have not been
resolved. Furthermore, the Agency has indicated that it intends
to publish both a technical correction to the regulation and at
. least one major revision to the rule. Even if the Agency were
569
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to determine that the Subpart CG requirements are to be imposed
- on units regulated under Phase IV, these requirements should be
deferred until the many, problems with the Subpart CC regulations
are resolved. In fact, Safety-KJeen recommends that the Agency
avoid applying the Subpart CC requirements in any proposed
regulation until the problems with Subpart CC are adequately
addressed and the rule is corrected.
RESPONSE ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that \
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
' regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. .As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,19,95 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit.that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , -
570
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DCN PH4P065 . " ' -
COMMENTER-Safety-Kleen Corp. . ; " -
RESPONDER SS .-' '
SUBJECT EQUV / . '-,..,-
COMMENT 6. Safety-Kleen recommends that the Agency clarify that the
Phase IV LDR regulations do not apply to on-site stormwater .
surface impoundments. Surface impoundments are commonly used to -
manage stormwater at industrial facilities, Waters accumulated .
in these impoundments may'flow into and out of the impoundments "
. .via overland flow, through earthen.Pitches, or through pipes and "
culverts. Discharges from these impoundments are generally
> . controlled under stormwater permits or, in some cases, National" .
Pollutant Discharge Elimination System (NPDES) or Publicly-Owned .
Treatment Works (POTW) discharge permits. Safety-Kleen believes
that stormwater impoundments can be legitimately exempted from
the PNhase IV LDR requirements because the impbundments'are \
generally regulated under a separate regulatory program (Clean
Water Act, or C WA, stormwater regulations), the influent to !the
impoundment is generally not hazardous waste, me impoundments, - .
pose low environmental risk, and stormwater impoundments are
critical to.effective facility operation. .
RESPONSE . . ' . ' ,,.-; ' '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore; the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. - ' * '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any .potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ...
571
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572
-------
DCN .. PH4P065 - - .
COMMENTER Safety-Kleen Corp. . -.
RESPONDER SS ' .. x
SUBJECT "EQUV - ' , . .
COMMENT 9. Safety-Kleen believes that wastewater surface impoundments
located in both interim status and permitted TSDFs should be , f ' . '
. automatically exempted from ail Phase IV management standards.^
Safety-Kleen agrees with EPA that permitted TSDFs should be
totally exempted from the Phase. IV LDR requirements. During the
. RCRA permitting process, Subtitle D wastewater surface
1 - impoundments receiving hazardous waste constituents are required
to be evaluated (as Solid Waste Management Units, or SWMUs) to
determine if they are causing unacceptable environmental impact . "
-'- via emissions to the air, runoff to surface waters, and seepage ,,
into the soil and ground water. Such evaluations are used by ' ' '
the permitting authority to determine if any additional .. ,
monitoring and/or corrective action is needed for the .
impoundments on a case-by-case basis. These inspections and
subsequent later activities (as needed) assure that the
impoundments are being operated in an environmentally acceptable ,
' manner. TSDFs under interim status should be provided the same
total exemption as permitted TSDFs, because the same SWMU
evaluations with subsequent monitoring and/or corrective action,
as needed, will be conducted during the Part B permitting ,
process or can be conducted under Section 3008(h) of RCRA.
Safety-Kleen believes it would be unreasonable and unnecessary -
to force interim status facilities to comply with Phase IV ,
requirements if the regulatory agency has the authority to -.'...
evaluate the facility and to request site-specific corrective <
action measures based on those inspections and any further
monitoring. Safety-Kleen requests that the total exemption from
all Phase IV management standards be provided for both interim .
status and permitted TSDFs. ,
RESPONSE . ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,.1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
573
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Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,; 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed .and the wastes are subsequently treated
, in a unit that is'regulated by the Clean Water Act or, for underground injection wells, the Safe
.Drinking Water Act. .; . - .; .
However, the Land Disposal Flexibility Act does mandate EPA to'undertake a 5-year study to '
determine any potential risks posed by crosslmedia transfer of hazardous constituents from'these
surface impoundments. The findings of this study, begun by the Agency in April^ 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. r _
574
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DCN . PH4P065 . i
COMMENTER Safety-Kleen Corp. ' '
RESPONDER SS . /
SUBJECT EQUV ' . ' .
COMMENT ,, 10. The tank-based exemption reference included in Figure 1 is
unnecessary. The."tank-baseid" exemption question is an i ' .
unnecessary question because (1) Phase IV regulations only _- ;
address wastewater surface impoundments, and (2) the question as - . . .
. to whether or not wastewater surface impoundments are present
has been previously addressed. Safety-Kleen recommends removing'
the tank-based exemption question from Figure 1.
RESPONSE '
In the August 22, 1995.Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharactenzed wastes were.not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity, -
reactivity, or toxicity when generated but are no longer characteristic); On March 16, 1996, the'
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' ,
575
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DCN . PH4P065 ' ' . -
COMMENTER Safety-Kleen Corp. ' ;
RESPONDER HM , :
SUBJECT EQUV . ' .
COMMENT 5.'Safety-Kleen agrees with the Agency's definition of .
point-of-generation for certain sludges. Safety.-Kleen'agrees
with the Agency's stated intent to consider the generation of
sludges in Subtitle D wastewater surface impoundments as new . . .
points of generation and, as such, outside of Subtitle C LDR
controls since they are, by definition, non-hazardous wastes. ,
Safety-Kleen points out that a similar defmition^would apply to
a tank performing the same function. .
RESPONSE , . . .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that ,
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and'air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially^exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. / ^
s
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such ,
regulation. . ' -
576
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DCN . PH4P066 ' . , ",
COMMENTER American Petroleum Institute . .
RESPONDER PMC .' '
SUBJECT EQUV . '"
SUBJNUM 066 . - . , .
COMMENT . . ' '. ,' -^ . ' .
' In both the Phase III NPRM and this proposal, EPA acknowledges
that the risk addressed by these proposals are relatively low- ,
; . compared to other environmental problems faced by the Agency. 60.
Fed. Reg. 11704 (Mar. 2,1995); 60 Fed. Reg.43656 (Aug. 11,1995)
Indeed, EPA has supported legislation which allows EPA not -
to promulgate the Phase III rule and clarifies that EPA is not
required to proceed with thePhase IV rule. API understands EPA
must address the demand of the Chemical Waste Management, Inc. v.
EPA, 976 F.2d 2 (D.C.Cir. 1992); cert den 113 U.S. 1961(1993)
(hereinafter the "Third-third" decision) and the consent decree
lodged in that action. However, EPA should not compound the burden
imposed by the redundant regulation attributed to the Third-third
decision by adopting an overly expansive reading of the opinion or
promulgating a rule that goes much further than the court required.
Since these impoundments pose little, if any, risks to human
health or theenvironment, EPA should: exempt stormwater
impoundments that receive dilute process water during storm events
from the Phase III and Phase IV rules, and; adoptOption I in the '
proposal; i.e., no further regulation of non-hazardous
impoundments. A discussion of these stormwater impoundments is
provided later in these comments. ,
II. EPA Should Allow Public Review of the Regulatory Language of
the Option they Use. , . " -
EPA has not proposed any specific language for the three options
discussed inthe preamble. To the extent that this suggests that
the Agency is inclined to adoptOption I, API strongly supports
EPA's approach; However, should EPA choose Options II or III, the
Agency should provide public review of the regulatory language.
The details of the regulatory language are particularly important
in the implementation of a complex regulatory scheme, such as the
LDRs. While EPA has explained its intent inthe preamble, it is
important for the regulated[community to have an opportunity .
to review the actual regulatory language to ensure that it achieves
EPA's intent. .
Consequently, EPA should submit any regulatory language to the
docket prior to finalization of the rule.
III. EPA Should Adopt Option I, No Further Requirements for Non
577
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HazardousSurface Impoundments.
EPA discusses three potential options for addressing what, if any
requirements should attach to land based units that manage
decharacterized wastes. API urges EPA to adopt Option I, which
provides for no additional controls outside of the Phase III LDR.
As discussed more fully below, the "Third-Third" decision does not
require, or even suggest, any additional requirements for surface . .
impoundments receiving decharacterized waste, nor was the
"treatability group doctrine" affected by the court's decision.
Furthermore; the low risks posed by surface impoundments regulated
under the Clean Water Act (CWA) do hot warrant any additional
regulation under RCRASubtitle C.
A. The "Third-Third" Decision Does Not Require -EPA To Impose,
Additional Controls ForNon-Hazardous Surface Impoundments.
API disagrees with the discussion in the preamble suggesting that
the "Third-Third" opinion suggests that EPA should adopt
requirements on surface impoundment integrity in order for the
impoundment to be RCRA equivalent. Indeed, API believesthat,
rather than being ambiguous or silent on this issue, the court's
opinion is quite clear in its conclusion that an equivalency A
demonstration is unnecessary for these surface impoundments. Any
contrary reading of the opinion by the Agency to support such
demonstrations would constitute a construction of the opinion that
is clearly adverse with the court's intent, and that would be
contrary to the requirements of RCRA section 1006(b) that mandates
the integration of RCRA and the CWA. . ,
In explaining its position on this issue, the Agency states that
the opinion couldbe read to encompass requirements respecting
surface impoundment integrity, airemissions and sludge treatment.
60 Fed. Reg. 43657. In EPA's view, the court's primary concern is
to distinguish treatment impoundments versus impoundments disposing
of previously hazardous wastes. An impoundment would be
considered a disposal impoundment by EPA if it allows untreated
hazardous constituents to enter theenvironment through
impoundments or from sludges in amounts sufficient to
impose significant risks.
To the contrary, the only correct reading of the opinion is that
the court considered the continued use of non-hazardous surface
impoundments (which include both Subtitle D impoundments and
impoundments under Subtitle C delay of closure) to receive and .
treat decharacterized wastes to be permissible, provided only that
the wastes themselves are ultimately treated to levels equivalent
to RCRA standards. The opinion focusses primarily on whether.
578
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-diluted or decharacterized wastewaters are treated so as to comply
with the Section 3004(m) treatment standards (or their equivalent).
For example,, the court stated that -"treatment of solid wastes in a
CWA surface impoundment must meet RCRA requirements prior to
ultimate discharge into waters of the United States." Language can
he found throughout the opinion that indicates a focus on the . -
treatment of the wastewaters themselves, whether prior to or during
containment in surface impoundments. Nowhere jn the opinion does
the court criticize or even address the substantive merits of
non-hazardous (v. Subtitle C)impouhdments.
By way of contrast, the opinion makes several critical references .
to the continued use of unlined surface impoundments, which
confirms that the court contemplated their continued use managing
decharacterized wastes. For example, in describing the CWA
treatment systems at issue, the court stated that: .
Following aggregation, the facilities sometimes place the combined.
stream in an unlined surface impoundment as part of the CWA
treatment train. These impoundments do not meet RCRA. Subtitle C
standards and they are regulated solely under RCRA Subtitle D.
Later, the court expressly held that diluted, decharacterized
wastes "may be placed in subtitle D surface impoundments that are
part of an integrated CWA treatment train," provided that the
wastes are themselves treated to meet RCRA standards. Several
other references are made by the court to the continued use of
unlined impoundments to receive decharacterizedwastes, but nowhere
in the decision does the court indicate'or infer that the use of
unlined impoundments is prohibited or that an equivalency
demonstration is required. ,
Further language supporting a conclusion that an equivalency
demonstration is not required , .
may be found in the court's discussion of the integration that is
required under section 1006(b)( 1 )between RCRA and the CWA. In
referring to the "accommodation" required by section 1006,
the court agreed that "allowing temporary deposit of '.,-.
decharacterized wastes [in a Subtitle D impoundment] is a
reasonable accommodation so long as complete circumvention of
the treatment standards does riot occur/' . , .
The court clearly attempted to remove any confusion or doubt
regarding its decision, and API believes that it did so with
respect to this issue. .In explaining the impact of its holding,
the court clarified that a decharacterized waste may be placed in a '
non-hazardous surface impoundment:
if the resulting CWA treatment fully complies with RCRA §
579
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3004(m)( 1). In other words, the material that comes out of CWA
treatment facilities that employ surface impoundments must remove
the hazardous constituents to the same extent that any other
treatment facility that complies with RCRA does.
Beyond any doubt, the court considers non-hazardous surface * '
impoundments to be a component of the entire CWA treatment
facility, and it is the ultimate discharge of wastes from this
facility (i.e., end-of-pipe discharges) and not the status of the
facility itself, that is the court's paramount concern. Finally; the
most convincing language on this issue is found in the court's
summary of whether CWA systems treating diluted or decharacterized
ICR wastes satisfy the section3004(m)(I) standard. In this
. section of the opinion, the court stated that: .
.the result here is unique to CWA systems. Nothing herein permits
the placement... of hazardous wastes or formerly hazardous
.wastes which have not yet met section 3004(m)(l) '
Treatment Standards into non-Subtitle C surface impoundments except
in existing CWA treatment systems which ultimately treat the
streams to full section 3004(m)(l) standards. ,
Clearly the court was well aware that these CWA treatment systems
do not meet Subtitle C requirements (e.g., they utilize unlined
surface impoundments), but it did not make.any statement, implicit
or otherwise, that the design and operation of the impoundments
itself had to be altered.
In summary, there is absolutely no language in the opinion that
can support the Agency's interpretation that an equivalency
demonstration for surface impoundments treating diluted
or decharacterized ICRT wastes is necessary to ensure that the
court's mandate is satisfactorily met In fact, API believes the
mandate is clear in its approval of the continued and unaltered
use of such impoundments; again, provided only that the
wastestreams themselves are ultimately meet RCRA standards.
C. The Non-Hazardous CWA Surface Impoundments Do .Not Warrant
Further Regulation. _ ,
As EPA observes in the preamble to the proposed rule, there are
numerous regulatory authorities that EPA has or may use to regulate
non-hazardous surface impoundments that pose unacceptable risks.
60 Fed. Reg. 43659-60. Indeed, sincel 990 there have been numerous
regulations, several of which are discussed below, which have
dramatically reduced the tpxicity of water managed in wastewater
treatment systems. For example, the organic Toxicity
Characteristic (TC) rule became effective subsequent to the
promulgation of the "third-third" rule. 55 Fed. Reg. 11798 (Mar.
580
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29,1995). The TC rule regulates the toxic constituents that are
most likely to pose a risk to human health or the environment. As
a consequence of the TC rule, many surface impoundments that were
not regulated when the "Third-third" rule was
originally'promulgated, have become subject to RCRA Subtitle C or,
to avoid such regulation, have reduced the concentration of toxic
581
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constituents entering the impoundments.
Similarly, the Agency has promulgated listings that have subjected
CWA surface impoundments to full RCRA Subtitle C regulation. "For
example, in 1990 EPA listedF.037-038, Primary Refining Sludge. 55
Fed. Reg. 46354 (Nov. 2, 1990). This listing resulted in the : .
Subtitle C regulation of surface impoundments upstream of
biological treatment at petroleum refineries. If EPA believes that
there are unacceptable threats posed by a particular unit, the
Agency can apply a more appropriate mechanism to address those
threats. A listing determination allows the Agency to target
its regulations towards actual environmental threats, rather than
employ an over inclusive blunt instrument such as option III in the
preamble. ' ' >
In addition, many federal air requirements reduce the risk posed
by leaks and sludges as well as risks posed by air emissions. For
example, in the recent Refinery MACT. rule 60 Fed. Reg! 43244 (Aug.
18,1995) the most common compliance strategy is to reduce the
concentration of VOCs before the waste water is introduced to
the surface impoundment. Since there are less hazardous organics
entering the impoundment, the risks from any water leaking is
reduced, as well as the potential adsorption of organics in the
sludge. In fact, the industries covered by the Phase IV PROPOSAL -
have or will have air regulations that could cover wastewater
treatment systems if they represent a significant source of ,
emissions. All the industries identified as being affected by the
Phase IV draft RIA are in whole or in part covered under a source
category that is regulated or will be regulated under Section 112
of the CAA. Compare id. to 57 Fed. Reg. 31576 (July 16,1992). As
a consequence, EPA either has or will have an opportunity to
regulate air emissions from waste water in a manner most
appropriate to the covered facility. .
In addition to these significant regulations that would directly
overlap with any Phase IV regulation of surface impoundments, there
are numerous reporting requirements that allow EPA or the States to
ensure that toxic constituents do not pose an undue risk. Both
CERCLA and the CWA have such'reporting requirements. See 40C.F.R.
§§302.6,122.42. These general requirements are in addition to
specific permit conditions.
In addition, regulation of nonhazardous, subtitle D surface
impoundments is contrary to the R.CRA statutory scheme, and would
provide redundant regulation to state Subtitle D regulatory
582
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.programs. As EPA knows, RCRA generally reserves the regulation of
- non-hazardous solid waste units to the states. See RCRA Section
4001et.seq.. Accordingly, EPA should not leverage its authority
under section 3004(m) to regulate non-hazardous surface
impoundments. , , ''.<., ,
IV. Discussion of Option 2.
If EPA decides to regulate non-hazardous surface impoundments
under the phase IV rule, EPA should adopt Option 2. As explained
more fully below, biological surface impoundments do not pose
significant environmental risks for sludges or leaks. Furthermore,-,
since all petroleum refineries are subject to the petroleum
refinery MACT, air emissions from waste water units are already
regulated under the CAA.
1. Any Water Leaking from ABT Impoundments is Substantially
Treated. , . ' . . -
The March 2,1995 proposal states EPA's concern that leaks from
surface impoundments may result in the disposal, rather than
.treatment, of decharacterized wastewaters. Therefore, the Agency
,. is considering the addition of controls on surface impoundments
-used to manage such wastewaters. API strongly believes
that aggressive biological treatment (ABT) units and units
downstream used to manage decharacterized wastewaters do not
warrant additional controls. . v
3. Air Emission from Wastewater Treatment Systems are
Effectively Regulated under Other Authorities.
As EPA is aware, air emissions from the wastewater treatment
systems of petroleum refineries are extensively regulated. The
Benzene Waste NESHAP, 40C.F.R. Part 61, Subpart FF, New Source
Performance Standards (NSPS) For Petroleum Refinery Wastewater, 40
C.F.R. 60 Subpart QQQ; the Petroleum Refining MACTj 60 Fed. Reg.
43244 (Aug. 18,1995); and the RCRA Subpart CC Rule, 40C.F.R. 264
and 265 Subpart CC; all extensively regulate air emission from
non-hazardous surface impoundments. These controls are in addition
to state requirements. , :
API supports EPA's position in Option II that facilities which are
covered by CAA regulations (such as petroleum refineries) will
automatically fulfill any Phase IV air emission obligations.
However, to avoid duplicative requirements, it is essential
that EPA clarify that however a facility complies with CAA '
requirements, through bubbling, de minimis thresholds, or
technology standards, it would not be subject to any additional
Phase IV air requirements. For example, under the refinery MACT,
if a facility manages less than 10 metric tons of benzene per year
583
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in total waste, there are no further waste water requirements. In
this instance, even though control measures are not required, such
a'facility has achieved compliance with CAA regulations. Therefore,
since this standard was deemed environmentally protective under -
the CAA, EPA should not impose further unwarranted regulations on
wastewater impoundments in the Phase IV rule.
4. Groundwater Monitoring Provisions
API agrees with EPA that ground water monitoring should not be
required for biological and post biological impoundments. However,
API offers the following comments on EPA's discussion of ,
groundwater monitoring. The Option II groundwater monitoring
proposal was based the Municipal Solid Waste Landfill (MSWLF)
rule, which allows an authorized state to approve a multi-unit
groundwater monitoring system. However, this flexibility is not
included in Option II of the Phase IV proposal. Under the proposed
Option II, a separate groundwater monitoring system is required for
each individual treatment unit. -API believes that if Option II is
chosen, a flexible approach towards monitoring system design should
be included in the rule. .
For example, there are instances where the addition of monitoring
wells between closely spaced impoundments will not significantly
increase the effectiveness of a groundwater monitoring system. A
mounding effect will be present on the watertable beneath a
leaking surface impoundment, locally altering groundwater
flow. Therefore, a monitoring well placed between.two units will
not be able to identify which of the units is leaking, even with *
prior knowledge of unaltered groundwater flow. While detection may.
not be as rapid, the only environmental impact that could result
from one multi-unit monitoring system is to the soil and
groundwater directly berieath.the unit(s).Conversely, there are
instances where interferences exist between surface impoundments
(such as public water bodies, old Solid Waste Management Units
or other contaminated property) and the ability to separately
delineate the units is essential.
API therefore feels that if Option II is adopted by EPA, a
flexible approach is warranted, allowing each facility to design an >
appropriate groundwater monitoring system based on site-specific
conditions.
If a release from a surface impoundment is validated, EPA only
allows two options. 60 Fed. Reg. 43672. First, the .
decharacterized wastestream can be rerouted to a tank. Second, the
surface impoundment can be retrofitted with a double liner
and leachate collection. Both of these options can be
584
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.prohibitively expensive and unnecessary. . " "
Containment and removal/treatment of the groundwater should be
acceptable as alternative means to allow continued use of an
impoundment. Containment mechanisms such as generation of a cone
of depression to collect and treat the contaminated groundwater or
installation of a slurry wall around an impoundment provide ' v
adequate control of contaminated groundwater and do not force
expensive tankage or double liner/leachate collection expenditures.
V. EPA Should Not Adopt Option III.
API agrees with EPA's conclusion that Option III would not be an
appropriate way to regulate these units. Requiring MTR for surface
> impoundments managing non-hazardous waste is clearly not required
by the "Third-third" decision or the RCRA statutory scheme. It
would create an excessive regulatory burden and would override many
reasoned and considered decisions that EPA has made in facility
specific regulations. Further, retrofitting a large impoundment at
a petroleum refinery could cost as much as $ 100,000,000 per "
impoundment. As EPA observed, these costs are not justified by the
, risks that these units present. However, should EPA make
the clearly erroneous decision to adopt Option III, the four year .
retrofit provision of RCRA SECTION 3 005(j)(6) should apply.
If EPA determines that surface impoundments which managie
decharacterized ICRT wastes must meet additional technical
requirements, then the full four-year compliance period provided by
section 3005(j) must be available. The issue is governeid by the
position adopted by EPA that section 30Q5(j)(6) provides that
non-MTR impoundments must retrofit or close within four years of
the date of identification or listing of the newly regulated
wastes. See, 57 Fed. Reg. 37218-22 (Aug. 18, 1992).API supported
this interpretation in its February 24,1992 comments on the
proposed LDR for Newly Identified Wastes and Hazardous Debris, 57
Fed. Reg! 958 (Jan. 9,1992), and in, its March 20,1992 comments on
the proposed Timing of Surface impoundments Retrofitting Rule, 57
Fed. Reg. 4170 (Feb. 4,1992), both of which are incorporated here
by reference. . :
API believes the four-year retrofit period should run from the
, effective date of the forthcoming revised treatment standards for
ICRT wastes. First, it would be both illogical and inequitable to
conclude the period would run from the initial identification of
the ICR wastes (well over four years ago), since generators of
such wastes will have no way of knowing that their decharacterized
non-hazardous wastes could not be placed in hpn-MTR surface
v . impoundments.. Thus, it would be impossible to comply with that
585
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requirement now and unfair to start the clock before notice is
given that additional requirements will apply.
Second, beginning the four-year period from the date new treatment
standards take effect would be consistent with EPA's conclusion in
the Third-Third rule, that the period for variances from a new
treatment standard can begin at the time the new standard is <
identified, given that for a change in the standard is
functionally equivalent to applying a standard in the first
instance (e.g., triggers a need to find additional or different
treatment capacity). See, 55 Fed. Reg. 22594 (capacity variance
for K048-K052transferred to Third-Third). The same analysis holds
for imposing MTR's under section 3005(j), i.e., the affected
parties would not know arid could not begin to plan for, nor
undertake expensive and technically difficult retrofits or <
replacements of impoundments until they became aware that the
decharacterized ICRTs remain subject to section 3004(m) treatment
standards. , ,
VII. Wet Weather Flow Impoundments Should Be Exempt from the Phase
III and IV LDRs.
Because many petroleum refineries are located in areas that
receive large amounts of rainfall, most facilities have extremely
large stormwater impoundments. These impoundments generally fall
under two classifications. One type of system is connected to
segregated storm sewers, These systems would not receive any
process water, and therefore would not be covered under either the
Phase III or IV LDR rules. The second type of system is a
stormwater impoundment which receives relatively small amounts of
process water which may contain decharacterized wastewaters,
along with stormwater^ (Hereinafter referred to as "wet weather
flow impoundments")- Wet weather flow impoundments further break
down into two different types. Sometimes the mixture of stormwater
and process water is retained in the basin and fed back through the
wastewater treatment, system at a controlled rate. In other cases,
the mixture of process water and stormwater is sufficiently clean
so the water is directly discharged. Separate stormwater \ ' '
impoundments are necessary so that the large amounts of
water managed during a storm event will not flood the wastewater
treatment system and interfere with the efficiency of the . . ,
aggressive biological treatment unit. Also, by diverting a large.
flow of water it helps a wastewater system maintain its
effluent discharge limit, especially for total suspended solids
(TSS). Wet weather flow impoundments are fundamentally different
from process water impoundments considered under this . . .
586
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rulemaking. Typical wet weather flow impoundments only receive
, waste water infrequently, in some cases only one or two days a
year. Thus, they are most often dry, and lack not only the
. hazardous constituents, but also the hydraulic head necessary to ' .
influence migration of.constituents. Further, if the UTS are
exceeded at all, they are only exceeded for short, transient peaks .
at the beginning of storm events when the proportion of process . .
water to storm water is the greatest. Consequently, there is :
limited total loading of UTS constituents into wet weather flow
impoundments. Because of the very low levels of UTS constituents
that find their way into such impoundments, and the lack of .
a migration mechanism for constituents, the environmental risk
posed by these units is small or nonexistent. ,
RESPONSE .
In the August 22,1995. Phase IV proposal, EPA discussed three options for ensuring that -
underlying hazardous constituents in decharacterized wastes were not released to the ,
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity^
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result-in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .' - ,
*^ . * . . ,- .
587
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DCN - PH4P068 - .
COMMENTER Amerada Hess Corp.
RESPONDER PMC
SUBJECT EQUV - - ' ' :
SUBJNUM. 068 :
COMMENT - ' . , : .
Amerada Hess Corporation has reviewed both the final regulation :,
'" and the subsequent revision to the Option 2 flowchart and revisions ,.
to the proposed BDAT standards. It believes that Option las set -
forth in the proposal presents the most reasonable and practicable
approach of the options presented in the proposed regulation. ' ,.
Amerada Hess understands that the intent of Option 1 is tallow ,
reliance on Phase III LDR regulations to satisfy the equivalence '"
standard and link Clean Water Act end-of-pipe and LDR standards to
~. assure that the mass removal'of Underlying hazardous Constituents . .
, (UHC) occurs in the CWA impoundment to the same extent that it;
does in conventional RCRA treatment systems. If our understanding _;
is correct, we can support promulgation of rules encompassing
option 1. We view this mechanism, coupled with existing regulatory
mechanisms such as those detailed in the proposal, as preventing
: or sufficiently diminishing risks due to cross-media releases.
Adopting this option will diminish concerns about excessive .
complexity and cost from the more complicated option 2 and the > '
overregulation represented by option 3, which would undermine the
value of impoundment-based wastewater treatment systems. - -
RESPONSE ' ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
. wastes are wastes which initially exhibited a hazardous characteristic of ignilability, corrpsivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility, Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61-FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR ,
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. , , . ,
588
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However, the Land Disposal Flexibility Act does mandate EPA to undertake.a Sryear study to
determine any potential risks posed by'cross-media transfer of hazardous constituents from these
surface impoundments.. The.findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact .found that would warrant such
regulation. - : .
589
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DCN - PH4P071 :» .
COMMENTER SOCMA
RESPONDER PMC '''...
SUBJECT EQUV : .
SUBJNUM 071 . - - '
COMMENT .
. SOCMA strongly supports Option 1 as an appropriate and reasonable
accommodation and integration of the overlapping compliance
obligations which otherwise could be imposed on Subtitle D surface
impoundments under the Clean Air Act, the Clean Water Act and
the Resource Conservation and Recovery Act (RCRA).. .
As is discussed below, SOCMA opposes both Options 2 and 3 because
they could seriously and unnecessarily disrupt the existing
wastewater treatment systems used by its members without any
demonstrated environmental benefit. Option 2 is of particular
concern due to its potential to rely on a series of exemptions
which could subject smaller companies or facilities to significant
and disproportionate regulatory burdens. SOCMA member
small companies and small facilities would be at a significant
disadvantage as a result of the significant capital and operating
.costs which they (but not all others in the industry) would incur
in order to cope with the regulatory impact of Option 2.
COMMENTS ',. ''.--
: I. The Potential Impact of the Proposed Phase IV Land Disposal
Restrictions Rule Must be Assessed Relative to the Batch
Manufacturing Typical of SOCMA Members
In order to understand the potential significance of the proposed
Phase IV Land disposal Restrictions (LDR) rule on SOCMA members, it
is necessary to understand and consider the unique nature of batch
processing.
. Batch processing provides an efficient and frequently the only
method to make small quantities of chemicals to meet specific needs
and consumer demands for specialized products. Batch processors
must be able to respond quickly to new requirements by customers,
fill small market niches and develop new products. They are at the
cutting edge of new technology, provide products often made nowhere
else in the world and help keep imports down by responding quickly
to customer demands for service and delivery. This segment of
The Chemical industry retains a high degree of entrepreneurship and .
must retain the flexibility to meet changing needs, and new
technological developments. . ,, ' '
Batch processes are distinct from continuous operations in that a
continuous operation has a constant raw material feed to each unit
' 590
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operation and continual product withdrawal from each unit
operation. A batch process has an intermittent introduction of
'changing raw materials into the process and varying process.
conditions, imposed on the process within the same vessel. Thus,
waste streams from batch processes can vary substantially over
time as compared with those of a continuously operating process. .
Characteristically, this segment of the chemical industry produces
small amounts of a large variety of specialty chemicals, which
.result in the generation of low volume, highly variable
wastestreams. ' ' , . .
For example, a,study conducted by SOCMA of several member company
facilities indicated that the number of different products produced
at a given facility could vary significantly from one year to the
next. In addition, at a facility where the number of
products produced was relatively more constant from one year to the
next, there still could be an almost complete turnover in product
mix, with few repeat products from one year to the next. >
Thus, while there are several aspects of batch processing
operations that have significant compliance consequences for SOCMA
members with respect to the Phase IV LDR.RULE, the most notable
characteristic is the variable nature of the product mix which
makes it impossible to predict which products will be made over the
course of a year.
II. SOCMA Supports' Option 1 and Opposes Options 2 and 3 Due
to Their Potential to impose Disproportionate Compliance Burdens on
Many SOCMA Member Operations
Since many SOCMA members currently commingle formerly .
, characteristic waste with nonhazardous wastewater in Subtitle D
surface impoundments and rely on these impoundments to meet
wastewater standards under the Clean Water Act, SOCMA is concerned
about the potential impact of the proposed Phase IV LDR rule on its
members. As SOCMA commented in previous comments on the Phase III
LDR proposal, we believe that the court's mandate of minimizing
jthreats to human health and the environment must be read in the
context of the overlapping compliance obligations imposed by
different environmental programs. SOCMA supports Option 1 as set
out in the proposal, because it reflects an appropriate
accommodation and integration of the different waste treatment
obligations imposed by the Clean Water Act(GWA) and the air
emissions standards imposed by the Clean Air Act. ,
For example, the Clean Air Act Hazardous Organic National Emission
Standards, for hazardous Air Pollutants (HON) wastewater emissions
provisions apply only to plants which are major emission sources of
591'
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.HAPs. It is unclear from the preamble discussion whether or
1 not plants which would be regulated by the HON but for the fact
that they are minor sources would be exempt from the air emissions
controls of Option 2. Similarly, the applicability levels for
process waste Volatile Organic Hazardous Air Pollutants (VOHAPs) -
in the HON are significantly higher than the Volatile Organic
Compounds (VOC) applicability levels Under Option 2. As a result,
many small plants could be subject to Option 2 air emission
controls which were not considered to be sufficiently significant ;
sources of air pollutants to be regulated under the HON.
By way of further example, SOCMA notes that the majority of its
members that generate hazardous waste have made a conscious
decision to manage this waste in 90-day storage areas in order to
avoid obtaining a Pan B permit for on-site treatment, storage
or disposal operations. In order to comply with the provisions of <
the 90-day exemption, SOGMA members have carefully reviewed their
waste generation activities and developed and implemented . 'v
strategies which ensure that facilities do not generate or store
more waste than can be stored and shipped within the constraints of
the 90-day time limit. Presumably, there are significant
environmental benefits both to SOCMA members and the public as a
result of these tailored waste management activities.
Yet, under Option 2, SOCMA members who comply with the 90-day rule
are placed at a disadvantage insofar as they would be regulated
under Option 2-while facilities with a Part B permit would not. EPA
generally justifies the exemption by reference to the RCRA
site-wide corrective action program. Yet, even EPA has acknowledged ,
that there is a wide range of experience under the corrective
action program. Thus, it is quite possible that Subtitle
D impoundments at a particular Part B permitted facility may not be
addressed under a corrective action program for some time to come.
Yet, Option 2 would automatically impose controls over comparable
impoundments at facilities which have used the 90-day storage
option notwithstanding the absence of any adequate demonstration of
harm or risk from these units. "
SOCMA is also concerned about the potential impact of the Agency's
proposed exemptions with respect to pending Clean Air Act >
regulations. It is unclear how these exemptions would be
implemented. For example, if those exemptions were not clearly
defined by the effective date of Option 2 under Phase IV; then
facilities presumably would still have to proceed to comply with
the Phase IV regulation in the interim. Insofar as some .
compliance options would require significant capital expenditures
592
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to modify existing wastewater treatment systems, it is unclear how
SOCMA members might'benefit from the so-called relief
afforded under a subsequently promulgated Clean Air Act regulation.
% SOCMA appreciates that, in crafting Option 2, the Agency sought to
identify simple mechanisms which would allow one to conclude that a
- facility might present a lower risk and therefore, could
appropriately be exempted from regulation. SOCMA would like to
make three'overall comments regarding this approach. First, the
exemptions created under Option 2fmesse rather than directly
address the key problem which underlies the Phase, IV, LDR proposal
--the absence of a degree of risk which warrants regulation. -
Second, a number of the exemptions require knowledge of precise
levels of constituents present in a waste and thus would impose the .
types of testing obligations which are particularly burdensome for
SOCMA MEMBERS, as noted below. Third, the exemption approach is
also flawed insofar as the exemptions fail to provide equivalent
treatment for comparable, or even identical, operations.
B. SOCMA Members Would Be Disproportionately and Unfairly
, Burdened By Compliance with Either Option 2 or 3 . ,
Determining that only, decharacterized wastes will enter a Subtitle
D impoundment, as.would be required under Option 1, imposes a
manageable compliance obligation on SOCMA MEMBERS. However,
adoption of either Option 2 or 3 would impose significant,
unnecessary testing burdens on SOCMA members. As noted above, the
frequently changing nature of wastestreams from batch processing ,
operations is a characteristic trait of many SOCMA
v member operations. The frequent testing that would be required for
SOCMA members to evaluate these waste streams for either Option 2
or 3 would cause them to incur disproportionate compliance costs
and to carry a burden not shared equally by other segments of the
chemical industry.
Further, these small companies and facilities would need to
assess, prior to deciding whether to make a new or slightly
, different product, whether the resulting wastestream might trigger
any new or different compliance obligations with respect to their
Subtitle D surface impoundments. Previously, companies could
satisfy this concern by determining that only decharacterized
wastes would enter those impoundments. However, under Options 2 or
3, the companies would need to consider how to quantify and treat
the relatively insignificant levels of hazardous constituents that
might be present in the ultimately non-characteristic wastestream
resulting from a new or modified product. Failure to predict
accurately or manage correctly the resulting waste stream could
593
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have significant compliance consequences. A small company or
' facility understandably might be reluctant to undertake a new
production activity under these circumstances. Thus, Options 2 and
3 could adversely affect, the flexibility that is a critical element
of competition in me batch processing sector. By contrast, these
same concerns would not be present at ongoing continuous operations .
which have constant raw material feed and continuous product . .
withdrawal. . , , .
A final compliance concern relates to the sheer complexity'of both
'the proposed and existing land disposal restrictions regulations.
Small companies often do not have the resources to call upon an , '
outside consultant or lawyer to lead them through this regulatory
maze. Nor do they necessarily have extra in-house staff that is in .
a position to play that same role.'' Simply understanding when, how
and whether the Phase IV LDR regulations would apply to
batch operations at small facilities could be a major compliance
obstacle. This is particularly true insofar as Options 2 and 3 -
would take the unprecedented step of imposing these complex, RCRA
hazardous waste compliance obligations oh previously unregulated,
nonhazardousSubtitle D surface impoundments.
Consequently, SOCMA believes that the Agency has failed to
understand and assess the potential impact of Options 2 and 3 on
many of its members. Given that the Agency has failed to identify <
any significant environmental benefits from these options, EPA
should conclude its Phase IV LDR rulemaking by adopting Option 1.
RESPONSE % .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that . .
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act >
594
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However, the Land Disposal Flexibility Act does mandate EPA to'undertak'e a 5-year, study to ,
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ''''-. l- .",- . . ' '
595
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DCN PH4P071 '.-.'-.
COMMENTER SOCMA
RESPONDER SS .
SUBJECT EQUV ...
SUBJNUM 071 ,.--."
COMMENT . ' " - ' ' . !
The proposed Phase IV LDR rule also discusses two other options:
Option 2, which would impose additional regulations on certain , ,
facilities with several listed exclusions; and Option 3, which
would require full treatment to Universal Treatment Standards -
(UTS) levels prior to release to a surface impoundment. SQCMA
opposes Option 3, because it fails to recognize the need for an, ,
accommodation between the CWA and RCRA (as the Agency itself points -
out in the proposal). SOCMA also opposes Option 2, because its
impact on SOCMA members potentially could be the same as Option 3: -
compliance could require that facilities, segregate decharacterized
wastewaters and treat them separately from other wastewaters. -
RESPONSE: ' ' '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if die characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, .the Safe
Drinking Water Act. _ . ' . , ,
'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . .
596
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DCN PH4P071 . , - - . .
COMMENTER SQCMA
RESPONDERSS . /
SUBJECT EQUV ' . . . , : ' ' . ..;.,'.
SUBJNUM 07.1 . ' .. ' ' . . '
COMMENT ;. ' .-..,. \ ; ;.. .. . '
A. The Proposed Exemptions Noted for Option 2 Could Place an Unjustified Level of .
Control on Smaller Operations . - '.
As an initial matter, SOCMA notes that it is difficult, based upon the preamble
discussion alone, to try to determine the exact scope and impact of the multiple exemptions
which are used to define the universe of facilities that would be covered by proposed Option 2.
Nonetheless, based on the information that is available, SOCMA is concerned that small
facilities may not be addressed by these multiple exemptions:
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous cpnstituents in decharacterized wastes were not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655); Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As.
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15.660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
, 43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. % - . - .. , , ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , . '
,597
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DCN ' PH4P074
COMMENTER Department of Defense , .
RESPONDER PMC ' . <' .
SUBJECT EQUV .
SUBJNUM 074 -",-.. .
COMMENT . , . .>'"_
DoD supports Option One mentioned in the proposed rule. Option One
has the advantage of utilizing existing federal and state programs
to regulate pbtential leaks and air emissions from surface
impoundments. Option One thus avoids duplication and is consistent
with EPA's goal of clarifying and simplifying EPA LDR requirements.
60 Federal Register at 43679.' ' _ ,
RESPONSE v '.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the ,
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
.reactivity, or toxicity when generated but are no longer characteristic). On March 16j 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the .
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April.8,1.996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air .
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . '
598
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DCN PH4P080 ' -
COMMENTER EASTMAN,
RESPONDER SS .-'.'. ' ' . ' ..
SUBJECT EQUV ' ' '."''.
SUBJNUM 080 ' ' .
COMMENT IV. EPA Cannot Legally 'Adopt Option 3 In its Chem Waste ' ' '
decision, the court made clear that non-hazardous CWA treatment
impoundments can be used to manage untreated characteristic
wastes if two criteria are met: (1) the waste is decharacterized
and (2) the toxicity of hazardous constituents in the waste has
. been reduced before exiting the CWA treatment facility. "Thus,
we agree with the EPA that,'under RCRA, diluted formerly
' characteristic wastes may be placed in subtitle D surface -'. ' -
impoundments which are part of an integrated CWA treatment .
train. However, in order for true "accommodation" to be
accomplished, we find that RCRA treatment requirements cannot be .''
ignored merely because CWA is Implicated; that is, the CWA does .'.'-.
not override RCRA. Thus, we hold thaV whenever wastes are put
v-. in CWA surface impoundments before they have been treated . -
pursuant to RCRA to reduce the toxicity of all hazardous . ^
. constituents, these wastes must be so treated before exiting the .
CWA treatment facilities. In other words, CWA facilities
handling characteristic wastes must remove the characteristic
and decrease the toxicity of the waste's hazardous constituents .-
to the same degree that treatment outside a CWA system would."
(976 F.2d at 37) (emphasis added) EPA's option 3 requires that
characteristic hazardous wastes meet UTS for underlying .
hazardous constituents before entering the impoundment. This
option is totally inconsistent with the court's dictate since it .
would prohibit the management of untreated decharacterized
wastes in nonhazardous CWA impoundments. It must therefore be
rejected by EPA.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
.wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes'(61 FR 15660).
Today's Phase IV filial rule will not promulgate provisions for managing leaks* sludges, and air
"' '"' l
'.-.. 599 ' .'.'.. " .* ' ' ' '-.
-------
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)).. Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the .Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . . . ' ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may.
result in proposed regulations for .these units, if risks are in fact found that would warrant such
regulation. . > . ,
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA- . ~
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment.
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of
organics) remain prohibited unless treated pursuant by the promulgated method.
600
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DCN - PH4P080'. .. ' .
COMMENTER Eastman '
RESPONDER SS --.. .
SUBJECT EQUV. ' ;
SUBJNUM 080 '" -. .'
: COMMENT B. EPA Should Include Draft Regulatory Language in Rulemaking
Proposals In the Phase IV rule, EPA has provided preambular . ' .
, . discussion of several options for potentially regulating air . .
emissions, leakage and sludges from nonhazardous CWA ; -.
impoundments that are used to manage decharacterized hazardous
\yastes. However, the Agency has failed to provide complete draft
regulatory language with the proposal. Eastman believes .that it
is important for regulatory language to be included in proposals >...
so that the public can ascertain whether ideas and concepts
. discussed in the preamble have been properly carried forward to . ,
actual rule language. The current proposal resembles an Advanced
Notice of Proposed Rulemaking (ANPRM) in mat a number of
options are discussed, rather than having a specific proposal ' .
from the Agency, and regulatory language is not provided.', _
Eastman believes that the Agency and public.are better served
when regulatory language is included in a proposal. Review of
both the preamble and regulatory language by the public can help .
identify errors and needed corrections before a rule is
. finalized. '...-'' '
.RESPONSE: .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655:43677)). Furthermore, the treatment standards forTC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. -.-"', , ' '..- '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
.- '.' 60,1 ' ' '. '
-------
determine any potential risks posed by cross-media transfer of. hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
* regulation. , ;
Since the Agency is not finalizing any of the options addressing equivalency of treatment in
wastewater treatment systems regulated under the Clean Water Act, the commenter's concerns
regarding publication of regulatory language for notice arid comment is moot.
602
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DCN .- PH4P080 ' ' '
COMMENTER EASTMAN ^
RESPONDER MC .,':...
SUBJECT EQUV \
SUBJNUM .080 . . " '
COMMENT A. EPA Should Clarify That the Phase ID .and IV LDR Standards
Are Applicable Only to Nonhazardous Impoundments In the Phase
in and IV. LDR proposals, the Agency addresses the need to treat
- underlying hazardous constituents that are present in
decharacterized hazardous wastes which are managed in Clean
Water Act (CWA) surface'impoundments. The discussed in the
court's decision and the Agency's Phase in and IV proposals
t > focus on the management of decharacterized wastes in
nonhazardous. subtitle D surface.impoundments that are not
subject to the more rigorous RCRA subtitle C regulations (note
the following citations). 1. Chemical Waste Management'. EPA
976 F. 2d, 2, pages 3344 - "Treatment facilities operating
pursuant to the CWA often receive waste streams from many .
sources, and generally these streams are-combined for
centralized treatment. Following aggregation, the facilities
sometimes place the, combined stream in unlined surface
impoundments. These impoundments do not meet the RCRA subtitle C
standards and they are regulated solely under RCRA subtitle D
(solid wastes), (emphasis added). 2. 60 FR 11704-
"Characteristic hazardous wastes that are treated or diluted
such that they no longer exhibit a characteristic are no longer
subject to RCRA Subtitle C management standards, and thus may be
discharged into units that are not subject to the stringent RCRA
Subtitle C standards, such as [TJC wells." (emphasis added) 3.
60 FR 11705 - "(3) situations where characteristic hazardous
wastes are diluted, lose their characteristic(s) and are then, .
managed hi centralized waste water management land disposal
units (i.e. subtitle D surface impoundments or Class I injection
wells) ....(emphasis added) 4. 69 FR 11708 - "EPA is
considering, hi addition to evaluating equivalence at the point
of ultimate discharge to surface waters or to a Publicly-Owned .
Treatment Works (POTWs) ("end-of-pipe equivalence"), conditions
for determining equivalence of treatment for decharacterized
wastes managed in nonhazardous waste (subtitle D) impoundments
which would ..." (emphasis added) 5. 60 FR 43657 - "Today's
options to address surface impoundment releases specifically
apply to Subtitle D (nonhazardous) surface impoundments that
receive decharacterized wastes/ (emphasis added) It is clear
. _ . . : ; 603 - -v ' - ' ' i
1 - . L V . ^ '
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that the court's concern and directives were aimed at .
decharacterized wastes managed in nonhazardous subtitle D
impoundments. It did not express concerns, or require any
additional, controls, for similar wastes.! lanaged in subtitle C
permitted impoundments. At two of Eastman's manufacturing
plants, decharacterized hazardous wastes are, treated in .
centralized CWA treatment systems mat-are comprised of
state-of-the-art above-ground tank systems followed by landbased
surface impoundments. At both facilities, the land-based units
are not only permitted under the facility's CWA permit but are
also fully permitted under RCRA subtitle C pursuant to the
provisions of RCRA 3005(j)(3)7 impoundments permitted subject to
this statutory provision must be ones which: (A) contain
treated wastewater during the secondary or subsequent phases of
an aggressive biological treatment facility subject to a permit
issued under section 402 of the Clean Water Act (or which hold
such treated waste water after treatment and prior to *
discharge); (emphasis added) (B) are in compliance with
generally applicable ground water monitoring requirements for
facilities with permits under-subsection (c) of section 3005(c);
and (C) (i) are part of a facility in compliance with
section 30103)(2) of the Clean Water Act. or (ii) in the case of
a facility for which no effluent guidelines required under .
section 304(b)(2) of the Clean Water Act are hi effect and no
permit under section 402(a)(l) of such Act implementing section
301(b)(2) of such Act has been issued, is part of a facility in
compliance with a permit under section 402 of such Act, which is
achieving significant degradation of toxic pollutants and
hazardous constituents contained in the untreated waste stream
and which has identified those toxic pollutants and hazardous
constituents in the untreated waste stream to the appropriate
permitting authority! RGRA section 30050)(5)(D)(ii) requires
that owners/operators provide certification that the
. impoundments meet the conditions of 3005(1X3), based on
analysis of toxic pollutants and hazardous constituents that are
likely to be present hi the untreated waste stream. This
certification must be made by a registered professional engineer
with academic training and experience in ground water hydrology.
Eastman believes that neither the court nor EPA intended to
impose additional Phase in or IV LDR restrictions on CWA .
impoundments that are already permitted and stringently
regulated under RCRA Subtitle C, such as the Eastman
impoundments discussed above. However, Eastman is concerned that
604
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the Agency has loosely used the terms "surface impoundment" and
"wastewater treatment systems" when discussing the requirements . .
of the phase m and IV rules, rather than using specific teens
like "nonhazardous surface impoundments/1 or "Subtitle D .
impoundments, (see the following example). 60 FR 43654 - The -
Environmental Protection Agency is addressing issues arising
from the September 25, 1992 decision of the U.S. Court of
Appeals in Chemical Waste Management v. EPA, g76 F. 2d (I).C.
> Cir. 1992) on the equivalency of treatment in wastewater x. " ;
treatment systems regulated under the Clean Water Act (CWA) to
treatment required by the Resource Conservation arid Recovery Act -
(RCRA). Specifically, the Agency is considering whether to
regulate potential releases to air or groundwater, of hazardous
; constituents from surface impoundments treating wastes,..."
(emphasis added). Eastman asks the Agency to add a specific
statement to the applicability portions of the Phase m and IV
LDR rules clarifying that they only apply to nonhazardous CWA
impoundments. Also, Eastman suggests that the language in the
second diamond in Figure 1, Option 2 be changed to read: "Is r v
the Decharacterized Waste Managed in a Nonhazardous Clean Water
Act or Equivalent Wastewater Treatment System(s)?"
RESPONSE '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which intially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Prinking Water Act ._".-
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any.potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ."..".. '..'."'
" - " I ''"'.-
- 605 ' . ,
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606
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DCN PH4P080
COMMENTER EASTMAN
RESPONDER MC ,
SUBJECT EQUV
SUBJNUM 080
.COMMENT . C. Sludges Are Prohibited Only If They Are Themselves
Hazardous Under option 2 in the proposed rule, sludges removed
. from prebiological CWA surface impoundments that accept
decharacterized hazardous wastes would have to meet UTS levels.
Eastman believes that no additional controls for sludges are .x
warranted for the following reasons. First, as the Agency has
stated, controls for sludges residing in the impoundments, .:
t separate from controls that address impoundment leakage, are not
.needed. "...EPA does not believe in-place sludges would be a
release pathway separate from the leaks pathway. Put another
way, by controlling leaks (as explained in the previous
section), any risks posed by sludges while in the impoundment ,
should be accounted for." (60 FR 43673) Secondly, sludges
, represent a new point of generation when they are removed from
the impoundment and are, therefore; subject to land disposal
restrictions only if they are hazardous (exhibit a hazardous
. characteristic) at the time they are removed, (see Wow) "EPA
also reiterates that, as a legal matter, it can be argued that , . ,
even no treatment of sludges is equivalent to subtitle C LDR
controls. This is because generation of sludges is usually a new
point of generation at which the newly-generated waste is
. reevaluated to determine if it is subject to the LDR standards.
If non-hazardous, the sludges would not be so subject (i.e.,
would not be prohibited wastes). See 55 FR 22661-62. Thus,
literal application of an equivalence test would result in no
treatment of these sludges, since the sludges will be .
non-hazardous wastes by definition (they cannot be hazardous
wastes because they are being generated in subtitle D
impoundment), and so would not require further treatment under
the standard subtitle C approach." (60 FR 43673) As the Agency
. -/ has properly recognized, sludges removed from a nonhazardous
impoundment are not hazardous (because they were generated in a
nonhazardous impoundment) unless they are determined.to be
, hazardous (exhibit a hazardous constituent) at the point that
they are removed. No land disposal restrictions attach to the
removed sludges unless they exhibit a characteristic. In its ,
. Phase m discussion of sludges generated from the treatment of
. . . 607 ' :- '
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. characteristic wastes in CWA impoundments (60 FR 11709), the
Agency says that "Under EPA's existing interpretations of the
rules, such sludges are usually considered to be prohibited
wastes-only if they are themselves hazardous. This is because
generation of a new treatability group is considered to be a,new
point of generation for purposes of determining where LDR
prohibitions attach." in the initial proposed rule setting forth ,
land disposal restrictions (LDR) the Agency recognized that the
most effective and efficient way to develop treatment methods
would be to divide wastes into treatability groups based on
similar physical and chemical properties. See 51 FR 1677. The
Agency recognized in this proposed rule that setting treatment
standards on the basis of waste codes is not appropriate.
"Because of the large number and variable nature of the waste
within most EPA waste codes, it is usually not appropriate to
evaluate treatment methods and their effectiveness on a waste <
code basis.... Waste may also be grouped according to the
constituent properties since these properties influence waste
treatability. For example, all waste containing volatile organic
constituents may form one treatability group, while waste
containing soluble organics may form another group. Other groups
may consist of waste containing metals or cyanides." It follows
from this position that in order to determine what treatment
standards apply one must know.what treatability group is
involved. And the determination of a treatment standard can
occur only after the treatability "group is generated. EPA
confirmed its use of treatability groups in making a
determination of applicable restrictions in the final rule
issued November 7, 1986, 51 FR 40572. In describing the sequence
to be followed in determining LDR the Agency stated at page
40620: "Sequence 1 in the generator's decision-making process
commences with a determination of the appropriate treatability
group and corresponding Part 268 Subpart D treatment standard
'.,; The Agency is requiring that applicable Part 268 Subpart D
treatment standards for a restricted waste be determined at the
point of generation." A statement that a change in treatability
group creates a new point of generation is found in the final
rule for land disposal restrictions for California list waste,
52 FR 25760 at page 25767, which in turn reiterated a statement
found in 52 FR 22356 at 22357. In both instances the Agency
explained an exception to the principal that treatment residues
- from prohibited waste must continue to be treated until they
,. meet the treatment standard. As the Agency explains: "This is
608
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where treatment results in a residue that belongs to a different
treatability group than the initial waste and the Agency has
already determined that there is inadequate nationwide capacity
to treat the waste belonging to that group." As an example, the
Agency described the incineration-of an F001TF005 spent solvent
that generates a scrubber water. Further treatment of the
scrubber water is not required because ... this scrubber water
belongs to a different treatability group ... It is obvious from
this discussion that as the treatability group changes the
determination of applicable land disposal restrictions changes
also. It follows that since land disposal restrictions are
determined at the point of generation (as described previously)
then a change in treatability group is a new point of
generation. See also 55 FR 22520 at 22544: "Additionally, this
is in keeping with the general principal established in these .
rules that determination of whether a characteristic waste
achieves BDAT must be reevaluated whenever a treatment residual
is generated. Put another way, each new treatability group has a
new point of generation for a characteristic waste.".See also 53
FR 31138 at 31209: "Of course, if in the course of managing the
waste a new treatability group is created, for example, scrubber
water from the incineration of a nonwastewater, the treatment
standard applicable to this new treatability group will apply."
From the above it is apparent that from early on in the
development of the land disposal restriction rules the Agency
has emphasized both the concept of determining applicability of
land disposal restrictions at the point of generation and the
concept that treatment standards are based on treatability
groups and that a change in a treatability group is a new point
of generation. As EPA pointed out in the third-third rule, this
approach to treatability group changes "provides a clear line of
demarcation, avoids the enormous, difficulties associated with
determining new treatability groups every time a hazardous waste
(in this case non-hazardous waste) is altered in some respect
and avoids having an initial waste's status as prohibited
determined in all cases by some later management of a residue
derived from the initial waste". See 55 FR 2266. It is also
apparent, that the court in the third-third decision nowhere
addressed the issue of a change of treatability groups or, for
that matter the issue of treatability groups at all. Thus, EPA
cannot rely on the court decision as a mandate to change its
position on point of generation or treatability groups. If these
changes are to be made they must be made on their own merits and
i. \ _
. , 609
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not as a requirement of the court. . -
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed thr-s Options for ensuring that, .
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes whicluntially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
. wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61. FR 15660).
.Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
- Drinking Water Act. - ' '
\* *'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments, the findings of this study, begun .by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. > , . '
610
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DCN PH4P080
COMMENTER EASTMAN
RESPONDER MC
SUBJECT EQUV
SUBJNUM 080
COMMENT A. Option -1 Satisfies the Court's Mandate When Congress
. enacted RCRA in 1976, it recognized the pre-existence of several
environment statutes including the Clean Water Act (CWA), and in
section 1006(b) of RCRA instructed the Agency to integrate
provisions of RCRA and other statutes when implementing RCRA and
, to avoid duplication, to the maximum extent practicable, with
the provisions of those statutes. In the Third Third land
disposal restriction (LDR) rule, EPA made a key policy decision
consistent with Congress* directive when it determined that
characteristically hazardous wastes were no longer regulated by
RCRA once they lost their characteristic, thereby allowing
decharacterized wastes to be managed in nonhazardous CWA ;.
treatment systems without having, to meet the requirements of
RCRA subtitle C. EPA's policy decision was challenged in.' .
. . Chemical Waste Management v. EPA, 976F. 2d 2(D.C. Cir; 1992). In
this Third Third decision, the court said: "Although a surface .
impoundment is technically a form of "land disposal," and
treatment therein normally 'would be at odds with the commands of
* , RCRA, this approach is nonetheless acceptable because RCRA
requires some accommodation with CWA. However, in all other
respects, treatment of solid wastes in a CWA surface impoundment
must meet RCRA requirements prior to ultimate discharge into
, waters of the United States or publicly owned treatment works
("POTWs") 976 F.2D at 20. Therefore, the court upheld EPA's
accommodation of RCRA and the CWA by allowing continued use of
nonhazardous CWA impoundments to treat formerly characteristic
hazardous wastes. The court added only one qualifier to this
accommodation, that the wastes meet RCRA requirements prior to
discharge into surface waters or POTWs. EPA has addressed this
requirement in the proposed Phase m rule where it proposed
that treated effluent from a nonhazardous CWA system (managing
decharacterized hazardous wastes) meet CWA technology-based or
, water quality-based standards, or the RCRA Universal Treatment .
Standards (UTS). This "end-of-pipe" treatment demonstrations
fully satisfies the courts mandate. Nowhere in the Third Third . -
decision does the court require, or even address, air emissions,
leakage, or sludges. In the Third Third rule, EPA acknowledged
''' ' : 611 , ' . "
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that the NPDES technology-based requirements of the CWA provide >
for treatment of wastewaters prior to discharge and that,
indeed, many of the LDR treatment standards are based on data
used to set the CWA standards. Therefore, the Agency concluded:
"Thus, EPA believes the overlap of an LDR dilution prohibition
where an NPDES treatment train includes a nonhazardous treatment
impoundment would not substantially further the treatment goals .
of the land disposal restrictions." (55 FR 22657) Therefore, the
Agency need not set any additional requirement other than-the ,
Phase m "end-of-pipe" treatment demonstration to meet the
court's requirement or the intent of the land disposal program.
In fact, to impose VOC, leakage, and sludge controls, beyond the,
end-of-pipe demonstration, would saddle nonhazardous surface
impoundments with more stringent land disposal treatment .
demonstrations than are required of hazardous waste treatment
units. The court did not intend or even suggest that EPA. impose
this additional burden on nonhazardous impoundments. When it
rendered its decision, the court fully understood that the \
impoundments at question were nonhazardous CWA impoundments not
subject to RCRA controls for-VOC emissions, leakage, or sludges.
Yet, it did not specify that these issues need be addressed,
only that a demonstration be made that hazardous constituents in -
the characteristic wastes be reduced prior to discharge to the
same degree that they would be by other RCRA treatment. 'Again,
this requirement is fully satisfied by the Agency's proposed-
Phase m "end-of-pipe" treatment demonstration. B. VOC ' ' '
. Emissions, Leakage, or Sludges from Nonhazardous Impoundments Do
Not Represent a Significant Threat to Human Health and the
Environment In the Phase m proposed rule, EPA'acknowledged that
characteristic wastes treated in nonhazardous surface
impoundments pose little risk. "That being said, the risks
addressed by this rule, particularly UIC wells, are very small
relative to the risks presented by other environmental
conditions or solutions. In a time of. limited resources, common
sense dictates that we deal with higher risk activities first, a
principle on which EPA, members of the regulated community, and
the public can all agree." (60 FR 11704) The wastes at issue in
this rulemaking are low-risk dilute wastewaters containing
formerly characteristic wastes that no longer exhibit a
hazardous constituent. Managing these wastes in CWA-permitted
treatment systems insure that they are properly treated prior to
1 discharge. The end-of-pipe treatment demonstration proposed in
the Phase m proposal further insures that hazardous constituents
612
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in the wastes have been treated. EPA has not adequately
demonstrated that the residual risks associated with management
of decharacterized hazardous wastes in nonhazardous CWA
impoundments, after implementation of the Phase m controls, are
sufficient to justify additional controls on sludges, VOC
emissions, or leaks. Based upon very conservative generic risk
assessments which did not.include consideration of site-specific
parameters, EPA concluded that leakage is likely to be of
concern only from pre-biological treatment units and that risks '
from sludges are low for all industries for which data was
available ("Regulatory Impact Analyses of the Phase IV Land
Disposal Restrictions; August 7, 1995 p..ES-7). Eastman believes
that the Agency's risk screening is flawed and that it
overstates the risks associated with nonhazardous CWA
impoundments. Eastman is a member of. the Chemical Manufacturers
Association (CMA). CMA commissioned Gradient Corporation to-
review EPA's risk assessment methodologies and conclusions.
Eastman includes the Gradient study and CMA's comments on the
risk assessment by reference in its comments. The CMA review ,
showed that much of the data used in the Agency's risk screening
is old, outdated, and not representative of current impoundment
operations. Gradient found a number of,problems with EPA's
screening methodology and concluded that the Agency's estimates
of risk are greatly overstated, in some cases by a factor of
over 660. EPA has even publicly supported the premise that
additional controls on CWA treatment systems are not needed. On
July 20, 1995, Michael Shapiro, Director of EPA's Office of
Solid Waste, testified before the House Subcommittee on
Commerce, Trade and Hazardous Materials, in connection with a
bill proposed by Rep. Oxley. that would, among other things,
reinstate much of EPA's Third Third Regulation. Mr. Shapiro
described the Third Third rule as originally promulgated by EPA,
and the decision of the D.C. Circuit in Chemical Waste >
Management v. EPA, 976 F.2d 2 (D.C. Cir. 1992) (hereinafter
referred to as the "Ghem Waste" decision), which forced EPA to
modify the roles. He pointed out that the risks addressed by the
resulting Phase m rule [and thus those addressed by the Phase IV
rule as well "are small relative to the risks presented by .other
environmental conditions or.situations; nevertheless, the Agency
is required to set treatment standards for these relatively low
risk wastes and disposal practices." (Shapiro Testimony at 13,
14.) Published'reports have indicated that Mr. Shapiro stated
that he would not oppose the section of the Oxley bill that
1 v, .
''..' . ' . 613 ,- ' -:.-
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would reverse the Chem Waste decision as to' wastes managed in -
CWA systems or UIC injection wells. (Pesticide & Toxic Chemical
News, July 26, 1995, at 13.). In March 1995, President Clinton
promised to provide Congress with a list of "rifle-shot"
legislative proposals that would "[fjix provisions of RCRA which
result in'high cost while providing only minimal environmental
benefits." The Administration has drafted two rifle-shot reform .
proposals. One proposes a return to the Agency's position prior
to the Chem Waste decision, that is, a complete deferral to CWA
regulations for decharacterized hazardous .wastes managed in
nonhazardous CWA treatment systems (Inside EPA, October 25,
1995, p. 1). In light of the low risk posed by decharacterized
hazardous wastes that are treated subject to CWA regulations and
the Agency's consistent support for the policy decision (to
defer to CWA regulations) that it promulgated in the Third Third
rule, it cannot in good conscious Impose additional costly , ,
burdensome regulatory requirements on CWA treatment systems. To
do so would be totally inconsistent with the Agency's regulatory
reform objectives. The Agency must recognize that many of the
additional controls that it is contemplating will be very
expensive to implement. Eastman alone could incur costs in
excess of $100 million dollars if it is forced to replace its "
CWA impoundments with tank systems. EPA has no justification for
disrupting these long-standing wastewater treatment operations.
Eastman agrees with the Agency's preambular discussion; our .
energy and capital funds could be much more productively used in ,
other areas. Eastman urges the Administration to accelerate its
rifle-shot legislative reform efforts. In the meantime, the .
Agency should adopt Option I in the Phase IV proposal. C. Air
Emission, Leakage and Sludge Concerns Are Already Addressed By ' , '
Other Statutes and Regulations Section 1006(b) of RCRA instructs
the Administrator to avoid duplication, to the maximum extent
practicable, with the appropriate provisions of other statutes. -
In the context of the Phase m and IV rulemakings, it is
important not only for EPA to integrate the requirements of RCRA
with existing CWA requirements, but that it also avoid .
duplication with existing federal, state, local and tribal
statutes and regulations. Eastman believes that existing
regulations are sufficient to adequately address air emissions,
leakage and sludge concerns at nonhazardous CWA treatment ' .
systems. EPA need not, and should not, add duplicative controls
on top of those that already exist. 1. Air Emissions Emissions
of hazardous air pollutants are already subject to Section 112 /
- ' '" . . . 614' - ' ' . - ' ': '. ; .'
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of the Clean Air Act. Section, 112 requires EPA to promulgate
emission standards for industrial source categories with respect ',
to nearly two hundred hazardous air pollutants, establishing
Maximum-Achievable Control Technology ("MACT") for such
categories. Many chemical companies are already covered by the
HON ("Hazardous Organic .National Emission Standards for
Hazardous Air Pollutants") regulation, promulgated on April 22,
1994 (59 Fed. Reg. 19402), or by the Benzene NESHAPS,
promulgated on January 17, 1993. Another relevant NESHAP that
has recently been proposed governs off-site waste management
operations. These regulations, taken together, place stringent
controls on the emission of hazardous air pollutants from the
organic chemicals industry. MACT standards for other industrial
categories have been or will be promulgated by EPA according to ,
a statutorily-imposed schedule, including some 70 additional
chemical production or manufacturing source categories and the
organic liquids distribution source category. EPA is also
required under section 112(f) of the CAA to review the residual
risk after MACT controls are established as part of the overall.
program to control HAP emissions. This CAA-authorized program
will address all emissions of HAPs, including MACT controls on
HAP emissions from wastewaters generated from manufacturing
operations. Since regulations promulgated under Section 112 are
to cover all major sources of hazardous air pollutants, there is
simply no need to impose duplicative requirements under RCRA.
The provisions .of the Clean Air Act governing nonattainment
areas (CAA §§ 171-193) may also overlap with the proposed RCRA
air emissions requirements. Those requirements impose
limitations (including the use of Reasonably Available Control
Technology, or "RACT") on the emissions from existing major air,,
pollution sources in areas that have not attained established
air quality standards. New or modified facilities may also be
subject to several requirements: (a) for certain industries, EPA
has promulgated New Source Performance Standards under Section
111 of the Clean Air Act, imposing specific requirements on all
facilities within the industrial category; (b) for areas in
compliance with air quality standards, Sections 160-169 .of the
Clean Air Act, governing Prevention of Significant
Deterioration, require newior modified sources to install the
Best Available Control Technology ("BACT");' or (c) for '
nonattainment areas, Sections 171-193 require new and modified
sources to apply technology that achieves the Lowest Achievable -
Emissions Rate ("LAER"). EPA should defer to programs, already in
\ '
. > 615 -.-.,
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. place or scheduled for development under the, CAA rather than ',
generating separate regulations under RCRA authority. 2.
Impoundment Leakage Leakage from impoundments are usually , -
addressed under state water or solid waste authorities. For
v example, the Tennessee Water Quality Act requires the state to
v issue a permit for any activities that result in the^discharge
of sewage, industrial wastes or other waters into surfacewaters
or groundwater, .or from which it is likely that the discharged
substance will move into surfacewaters or groundwaters (IN ,
69-3-108). Typically CWA surface impoundments employ completely
mixed biological treatment such that the concentration of a .
contaminant in the impoundment and in any leakage is the same as ' " ' "
that discharged in the effluent. Since any leakage from these
units typically moves toward and discharges into nearby surface
'_ waters, and since the volume of leakage is small in comparison .
to the discharged effluent, no appreciable risks are typically <
associated with leakage beyond the risks addressed in the CWA
permit for the effluent. Many CWA surface impoundments are'
located at RCRA-penriitted or interim status TSDFs and are / ,
subject to RCRA 3004(u) or 3008(h) corrective action. Therefore, ,
authority already exists to address leaks from Solid Waste
Management Units (SWMUs) at these facilities. In addition, EPA
. has,authority under RCRA 7003 to take action when a leak of any
solid or hazardous waste may present an imminent and substantial
endangerment to health or the environment. , . '
RESPONSE. , '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that .
underlying hazardous constituents in decharactenzed wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharactenzed
wastes are wastes which intially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the .
President sighed the Land Disposal Program Flexibility Act of 1996, which provides that the
'wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . , .
' : ' .,"-'' , - i .'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
:' ' ' ' " 616. ''' ' ' " .
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determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . - .
617
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DCN . PH4P080 -
COMMENTER EASTMAN
RESPONDER MC ' ' ' \ .
SUBJECT EQUV
SUBJNUM 080 -<'"'. > >.'"
COMMENT Thus, RCRA regulations are adequate to manage sludges,from
nonhazardous CWA systems. D." RCRA Land Disposal Rules Are Not
the Right Mechanism to Regulate Nonhazardous Surface
Impoundments Eastman has presented a number of reasons why it is
not necessary to impose any additional' controls on air
emissions, leakage, or sludges. Nevertheless, if the Agency
should determine that additional controls are necessary, they
should be implemented under more appropriate Subtitle D
authority. The impoundments at question hi the Phase IV rule are
nonhazardous impoundments managing nonhazardous wastes. The
proper arena for implementing any additional requirements for
these nonhazardous impoundments is through state industrial
nonhazardous waste programs. DDL Comments on EPA's Proposed
Option 2 A. EPA Should Resist Adding the Administrative Burden
That Option 2 Imposes Conceptually the approach proposed for
addressing air emissions, leaks and sludges in Option 2 is
reasonable in that it exempts facilities from additional
controls where it is determined that adequate requirements are
already in place. However, this option places additional
administrative.burdens on the Agency and regulated facility, to
make that determination, even where adequate controls do
actually exist. EPA should refrain from adopting Option 2,
including this increased administrative burden, just because it
may be more politically palatable. EPA should not fail to adopt;
Option 1 out of fear of being criticized for not taking any
action. There are, as Eastman has previously discussed, adequate '
technical and policy reasons why the Agency can feel comfortable
adopting Option 1 and restoring a measure of the RCRA/CWA
accommodation that it promulgated in the Third Third rule. EPA
has sufficiently addressed the court's requirements by its
proposed Phase m "end-of-pipe" treatment demonstration. Nothing
more is needed. B. If Option 2 is Adopted, Exemptions Should
Be Broadly Defined As Eastman has said many tunes in these
.comments, it believes that EPA.can, and should, adopt Option 1
(coupled with the end-of-pipe demonstration proposed in Phase m)
to achieve the accommodation between RCRA and the CWA dictated
by Congress and the treatment demonstration required by the Chem
Waste decision. However, if for any reason EPA decides to adopt
- . '. '. ' ' :' 618 . '
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Option 2, it is extremely important that the exemptions proposed
, in Phase IV be retained. Eastman believes that these exemptions
should be written as broadly as practicable so that the Agency
can avoid imposing duplicative, unnecessary requirements where
, federal, regional, state, local or tribal controls already,
exist. Eastman believes that the general exemption for units
located at TSDFs and the exemption from air emission controls
for facilities otherwise subject to federal, regional, state,
. local, or tribal requirements are especially critical. 1. TSDF
Exemption - Eastman agrees with the proposed .exemption from
Phase IV requirements for impoundments located at TSDFs. Units*
including nonhazardous CWA impoundments, located at permitted or
interim status TSDFs are subject to RCRA corrective action under.
RCRA section 3004(u) or 3008(h). Any releases from these units
are subject to investigation and potential,corrective measures.
EPA need not add any additional controls under,the LDR program.
Eastman believes that the diamond dealing with this exemption in
Figure 1, Option 2 should be changed to read as follows: "Is the
surface impoundment located at a TSDF which is subject to
corrective action under RCRA 3004(u) or 3008(h)?" 2. De
Minimis Exemption -Eastman believes it is appropriate to
establish a de minimis exclusion from the definition of a
hazardous waste for decharacterized hazardous wastes managed in
Clean Water Act Systems consistent with similar de minimis
provisions included in 40 CFR 261.3(a)(2)(iv), The establishment
of such a provision would be consistent with EPA's stated goal
of providing regulatory flexibility while recognizing the
court's desire to avoid a wholesale disruption of existing CWA
surface impoundments as long as hazardous constituents are
adequately managed so as to assure protection of human health
and the environment. 40 CFR 261.3(a)(2)(iv)(D) excludes de
minimis loses of commercial chemical products or chemical
intermediates (many of which contain high percentages of
hazardous constituents) from the definition of a hazardous waste
if the de minimis losses are combined with wastewaters for
treatment in wastewater systems the discharge of which is
subject to regulation under either section 402 or section 307(b) ..'
of the Clean. Water Act. In addition, 40 CFR 261.3(a)(2)(iv)(E)
excludes laboratory operations containing toxic wastes (and,
therefore, hazardous constituents) from the definition of a
hazardous waste if the generator meets certain conditions. The
generator must demonstrate that laboratory wastes are discharged
to onsite wastewater treatment facilities the discharge of which
. 619. .
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is subject to regulation under either section 402 or section
307(b) of the Clean Water Act. In addition, the annualized
average flow of laboratory wastewater must not exceed one
percent of total wastewater flow into the headwork of the
facility's wastewater treatment of pre-treatment system, or
provided the wastes combined annualized average concentration
does not exceed one part per million in the head works of the
facility's wastewater treatment or pretreatment facility. In
both cases, EPA recognizes the practical aspects of materials '
handling and laboratory waste generation and management
activities while recognizing that insignificant contributions of
hazardous waste do not measurably compromise the protection of
human health and the environment. Eastman recommends that the
Agency follow the precedent it set with the lab waste de minimis
exclusion by excluding de minimis quantities of solid wastes
exhibiting a hazardous characteristic from the definition of a
hazardous waste if they are treated in CWA impoundments. This
can be accomplished by adding the following at 261.4(b).
261.4(b)(15) Wastewaters which exhibit one of the
characteristics of a hazardous waste defined in subpart C of 40
CFR part 261, provided, the generator can demonstrate that the
wastewaters are treated in the facility's wastewater treatment
or pretreatment system the discharge of which is subject to
regulation under either section 402 or section 307(b) of the
Clean Water Act and: (i) That the total annualized flow of the
characteristic wastewaters does not exceed one percent of total
wastewater flow into the headworks of the facility's wastewater
treatment system or pretreatment system, or (ii) Provided that
the combined average concentration of underlying hazardous
constituents in the waste does not exceed one part per million
in the headworks of the facility's wastewater treatment facility
or pretreatment system. 3. Biological/Post - Biological
Exemption for Impoundment Leakage and Sludge Controls - Eastman
supports the proposed exemption from Phase IV leak and sludge
control requirements, for biological and post-biological
impoundments but believes that it should be extended to exempt
biological and post-biological CWA impoundments from additional
air emission controls. From its risk screening evaluations, the
Agency concluded that no significant health risks were
associated with leakage from CWA biological and post-biological
impoundments. "Our analysis also suggests that there is unlikely
to be a significant difference in the risk reduction benefits
between variants that consider all surface impoundments and
i _ ' ' _ ''.,..
- 620 x ' ' "
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, variants that consider only pre-biological surface impoundments.
In the baseline risk analysis, ye found that no significant
health risks were associated with sampling points after the
biological pond influent. These data indicate, there are no
incremental risk reduction benefits of leak requirements for
post-biological ponds. Unfortunately, there are no direct
measurements of constituent concentrations in biological ponds
or in leaks from these ponds. If leaks from biological ponds
contain concentrations that are dose to the effluent
concentrations from these ponds, our analysis indicates that
there would be no incremental benefits from requirements on
biological ponds either." (Regulatory Impact Analysis of the
Phase IV Land Disposal Restrictions and Summary of Data Needs
for P,hase IV Rulemaking, August 11, 1995, page 2 63) (emphasis
added). As stated elsewhere in these comments, biological
treatment units usually employ very thorough mixing so it is
reasonable to assume that any leaks from the impoundment and the
effluent from the impoundment will have essentially .the same
constituent concentration. Therefore, EPA's conclusion that
neither biological nor post-biological impoundment leakage pose
a health threat and that imposition of additional controls on
these impoundments would result in no incremental environmental
benefit is. well founded. Similarly, the Agency concluded from
its risk screening that requiring removal of sludges from
biological and post-biological impoundments and treating
hazardous constituents to UTS levels would result in no
significant incremental environmental benefit. "In three of the
four industries for which sludge data are available, we estimate
there are no significant health risks associated with the
baseline management practices (i.e., leaving the sludge in place .
or dredging and disposing without treatment). In the fourth
industry, OCPSF, our results indicate there is a small reduction
in health risks when OCPSF sludges are treated to UTS levels.
When DAF 500 is used, there are potential health risks from one
pre-bio sample under baseline management practices and after UTS
treatment; however the risk posed is one order of magnitude
lower after treatment to UTS. At the bio sampling point.
treatment to UTS does not change the distribution of risks
.presented by the sludges. These results are reported in Exhibit
2-25. If these data are representative, the incremental risk
reduction for sludges appears to be minimal. As a result, .
variants of Regulatory Alternative 2 that include the sludge
requirements may have very little additional health risk
621 . -
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reduction benefits compared to variants that exclude sludge
requirements. It is important to note, however, that only a very
limited quantity of sludge data was available." (Regulatory ;
Impact Analysis- of the Phase IV Land Disposal Restrictions and
Summary of Data Needs for Phase IV Rulemaking, August 11, 1995,
page 2.63 and 2 64) (emphasis added). Eastman believes that the
Agency risk screening methodology and underlying data are flawed
and overstate the risks associated with CWA impoundments. Even
so, the Agency's conservative-screening results fail to ; .
demonstrate that sludges in any CWA nonhazardous surface
impoundments pose a significant risk or that imposing the
proposed Option 2 sludge controls would result in any
appreciable incremental environmental benefit, let alone justify
the costs associated with implementing those controls. This lack
of risk showing, coupled with the Agency's acknowledgment that
any concerns over sludges residing in impoundments are
adequately addressed by leak controls and the fact that sludges
removed from a nonhazardous GWA impoundment represent a new
point of generation to which no LDR requirements attach unless
the sludge exhibits a hazardous characteristic, lead to the
conclusion that no sludge controls for pre-biological,
biological, or post-biological CWA impoundments are justified.
EPA clearly should adopt Option 1, requiring no additional
sludge controls. 4. Biological/Post- Biological Exemption for
Air Emission Controls - Eastman believes that the Option 2
exemption from leakage and sludge controls afforded biological
and post-biological impoundments should be extended to air
emission controls. Eastman has used EPA's WATER 8 emissions
. model to estimate the potential air emissions from various parts .
of one of its large wastewater treatment systems: Eastman
modeled the 46 organics that are included in its annual TRI
report. This system is comprised of equalization and
neutralization (pre-bio) conducted in tanks, aggressive .
biological treatment conducted in tanks (bio), and final >
polishing conducted in a CWA impoundment (post-big). While
Eastman believes that this model is conservative and
overestimates the magnitude of air emissions, it is instructive
to compare the relative predicted emissions levels from the
three types of units (pre-bio, bio, and post-big). This
comparison shows that, for this Eastman treatment system, 77.7%
of the total predicted organic emissions are attributable to the
pre-bio units, while 22% is attributable to the bio units and
only 0.3% to the post-big unit. In preparation for : .
" ' s
.'.- 622
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implementation of the RCRA subpart CC rule, Eastman has "
determined the volatile organic concentration, using EPA method
25D, at various locations in this same treatment system.
Specifically, samples from the influent to the pre-bio unit and
the effluent from the bio unit were sampled every 15 minutes for
three hours on February 22, 1995. These samples were sent to
Research Triangle Institute, Research Triangle Park, North
Carolina for analysis by EPA Method 25D. Results show that,
while the total concentrations of volatile brganics introduced .
to the pre^bio units ranged up to over 200 ppm, none of the .
samples collected at the effluent from the bio units contained
detectable levels of volatile organics. Waste waters in the
biological units are well mixed so it is logical to assume that
the measured effluent concentrations (non-detect) are reasonable :
approximations of the concentrations in the biological units.
So, Eastman's data shows that the concentration of volatile
organics in,its bio and post-big units are very low .
(non-detect). Therefore, the potential for volatile organic
emissions from these units is immeasurably low. In Exhibit 2-24
of EPA's Regulatory Impact Analysis of the Phase IV rule (August
11,.1995, p. 2-62), the Agency lists the estimated baseline.
annual population risks attributable to organic air emissions
for the eleven industry categories evaluated in the,rule. The
total estimated baseline cancer cases are 2.3-2.5 annually.
Exhibit 2-24 also list s the estimated post-regulatory (after
implementing Option 2 air emission controls) annual population
risks. The total estimated post-regulatory cancer cases are
1.5-1.6 annually. In other, words, the Agency has estimated that
implementation of Option 2 organic air emission controls on all
types of CWA impoundments (pre, bio, and post) will result in a
reduction of .8 to .9 cancer cases per year. Eastman questions
whether the Agency's risk assessment methodology is even precise
enough to measure this small change with any degree of
statistical accuracy, particularly when the Radiant study shows
that the Agency's risk estimates related to air emissions are
high by a factor of over 600. Eastman believes that the high
costs of implementing subpart CC controls on CWA impoundments is
totally unjustified relative to the very small reduction in risk
that may be achieved. They certainly- are not justified for bio
and post-big units. Eastman data shows that only 22.3 % of the
predicted emissions from its wastewater treatment system can be
attributed to bio and post-big units. Therefore, applying Option
2 air emission controls to these types of units, by EPA's own
623
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estimates, would likely result in a reduction of less than 0.2
'cases per year [("8--9) x 22.3% 1. EPA must not impose the costly -
Option 2 controls on these units with such meager, questionable
benefits. 5. CAA Exemption - EPA has proposed to exempt CWA ,
surface impoundments from the Option 2. air emission requirements
if other federal rules already address VOC emissions. "To avoid
duplication with other requirements, EPA would defer to other .
federal rules which establish controls addressing the same .
. situations. Deferral would occur where the existing program-
addressed the specific UHCs of concern. In the case of air . .
emissions. EPA would defer to standards regulating total , .
volatile organics, as adequately covering air emissions of UHCs
from this type of treatment. In addition to existing
. regulations, there are some CAA air emission limits under
development. Inefficiencies and confusion could occur if Option
2 controls were applied and soon superseded by upcoming CAA
standards. Facilities subject to CAA standards for hazardous air
pollutants (in particular, those promulgated pursuant to CAA "
112) in the .near future thus would not be covered by Option 2
air emission controls." (60 FR 43660) (emphasis added) Eastman
' supports this exemption. It is necessary to avoid the
. unnecessary overlap between statutes that Congress prohibited at
_RCRA section 1006(b). Eastman encourages the Agency to structure
this exemption very broadly to include air exemptions not only
. - for impoundments subject to federal CAA standards, but also to
impoundments that are subject to constituent-specific or total
VOC emission controls under regional, state, local, or tribal
authorities. This exemption could be implemented simply by
requiring the regulated facility to maintain in its operating
record verification and a certification that its affected CWA
impoundments are regulated for either specific-constituent or
total VOC emissions. EPA should not limit this exclusion to a
specific list of federal CAA regulations but, rather, should . .
defer to any federal, regional, state, local, or tribal
authority that specifically regulates specific-constituent
emissions or VOC's from the affected impoundments.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes "which intially exhibited a hazardous characteristic of ignitability, corrosivity, _
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
.-'-.'' 624 - ' : .' "
-------
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TG metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe -
Drinking Water Act. ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
625
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DCN PH4P081 . :
COMMENTER Rohm and Haas
RESPONDER PMC , , '<
SUBJECT EQUV
SUBJNUM 081 "'
COMMENT
Rohm and Haas is a world class manufacturer of methyl methacrylate
(MMA), a monomer used in the manufacture of Plexiglass This
useful compound finds its way into automobile light lenses, floor
- polishes, laundry detergent, and numerous other consumer products.
Rohm and Haas operates an integrated manufacturing facility for
the production of hydrogen cyanide (HCN) and acetone cyanohydrin
(ACH) as precursors to MMA and other products. The plant is .
located on the Ship Channel outside of Houston, Texas.
The HCN and ACH processes generate large volumes of waste water.
Some of the waste water streams are hazardous at their point of x
. . generation because they exhibit the characteristic of corrosivity,
.and some of those hazardous waste streams contain <
low concentrations of cyanide (10 to 50 times the Universal
Treatment Standards ("UTS") and ammonia. HCN is also used in the
manufacture of various amines in the Primenes-1 area. Some of the
internal streams from the Primenes-^ area are also characteristic .
for corrosivity and contain cyanides. :
Most of the hazardous waste water from the units that manufacture
or use cyanide-bearing materials is collected in one large tank
- : identified as the 91357 Tank. The individual feed streams to the
91357 Tank have one thing in common - they have the potential to
contain and must be treated to remove cyanide. Although the
composition and characteristics of the individual waste streams may
vary based on the operating parameters and the exact product
manufactured, the composition of the waste in the91357 Tank is
relatively uniform over time!
. From the 91357 Tank the aggregated waste water is fed to an
ammonia and cyanide stripper. The cyanide and waste ammonia
streams are destroyed in a flare, and the waste water, containing
reduced levels of cyanide, is sent to the centralized waste
water treatment plant. However, this treated stream may contain
cyanide up to 10 times the UTS after treatment and before
commingling. The waste water goes through API-type separators and
: pH adjustment, followed by aggressive biological treatment in a
large,1 aerated, clay-lined surface impoundment. The treated waste
; water is discharged under a NPDES permit .to the Houston Ship
626
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Channel. . - .
The NPDES permit contains specific limitations on the discharge of
cyanide which, for both total and amenable^cyanides, are greater
than the UTS levels. The Rohm and Haas operation may be severely
impacted if Phase IV sets standards for leaking, sludges and
volatilization which the surface impoundments will not meet, even
though Rohm and Haas is doing appropriate non-land based treatment
. for cyanide and is subject to Clean Water Act limits at the waste
water,.treatment plant outfall. . .'
Rohm and Haas strongly supports the promulgation of Option 1
Rohm and Haas strongly supports the promulgation of Option 1 as .
set forth in the proposed Phase IV rule. If the Phase IV Option 1
approach is adopted, Rohm, and Haas expects to continue its
operations and waste treatment as they are today and to ;
address leaking, sludges.and air emissions under the appropriate
regulatory schemes. This is clearly Rohm and Haas preferred
option.
Rohm and Haas has consistently stated that the LDR program is the
wrong regulatory scheme to address the purported risks from waste ,
water treatment plant effluent, and surface impoundment leaks,
sludges and air emissions., Rather, the effluent should be
addressed by the Clean Water Act (as proposed in Land Disposal
Restrictions Phase III 60 Fed. Reg. 11702, March 2,1995), the
leaks should be addressed by corrective action and groundwater
protection laws, sludges should be addressed by normal RCRA rules
(with the removal of the sludge constituting a new point of s>
generation), arid air emissions should be addressed by the Clean Air
Act. EPA should use this and every opportunity to halt the
tendency of RCRA to encroach into all areas of health, safety
and environmental regulation. .
V. Option 2
Rohm and Haas believes that Option 2 as set forth in the August
22,1995proposed rule is too complicated, is overly restrictive,
and creates too much uncertainty. The effects of PhaseTV Option
2 are unclear at this point, largely because there are so many ,
unanswered questions regarding the implementation details. At
best, Rohm and Haas expects to spend $25,000 - $50,000 in initial
costs and at least 100 hours of engineering and unit personnel time
to determine and document the applicability of exemptions from the
air emission rules. At worst, Rohm and Haas would be required
to move its entire waste water treatment system into tanks, at an
estimated cost of SlOOmillion and a minimum five year time line for
design,and construction. This represents a major investment and
627
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-disruption for the Company with no corresponding .
environmental benefit. Therefore, Rohm and Haas urges EPA to adopt
Option 1. . '/',-. '
EPA should riot regulate leaking and sludges from biological
surface impoundments under the Land Disposal Restrictions'
Rohm and Haas agrees that biological surface impoundments should
, not be subject to LDR regulations for leaking or sludges. These
potential pathways are already adequately controlled by existing
regulations and present low risks to human health and the , . ,
environment. For example, groundwater monitoring in the vicinity
of the Rohm and Haas impoundments at the Texas facility has not
shown significant levels of organics from the surface impoundments.
The operation of an activated sludge aerated surface impoundment
precludes the accumulation of high concentrations of organics in
the impoundment, and therefore there could be no leaking of harmful
concentrations to the surrounding soil. Certain sludges from the
Rohm and Haas impoundment have been fully characterized under RCRA
and have been determined to be non-hazardous. These sludges are
landfilled in a permitted and lined municipal landfill and present
no threat the human health or the environment. '
The air emissions rules in Option 2 would require Rohm and Haas to
expend $100 million with no benefit to the environment
The largest impact of Phase I Von Rohm and Haas is likely to be
caused by the proposed rules regarding air emissions from surface
impoundments. In the event that Rohm and Haas does not meet any of
the exclusions from the air rules (the lack of clarity of the air
rules is addressed below) Rohm and Haas would be required to,
expend SlOOmillion to design and install a new tank-based waste .
water treatment plant. This effort would require a minimum of five
years. The, tank-based treatment plant would not be subject to
the land disposal restrictions, so the RCRA air emissions rules
would not apply. Instead, the Clean Air Act HON MACT standards for
.waste water would apply. Those same Clean Air Act rules will also
apply to the air emissions from the existing impoundments.
Therefore, Rohm and Haas expects the regulation and the allowable
levels of air emissions will be the same whether Rohm and Haas
installs a new $100 million tank-based system or uses the existing .
land-based system. In essence, the RCRA LDR air emission rules
would simply force Rohm and Haas to spend $100 million for no
added benefit to the environment. ' '
The installation of a cover over the impoundments as proposed in
Phase IV is not feasible, and the only option Rohm and Haas would
have for compliance would be the construction of a new tank-based
628
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system. ..-At the Rohm and Haas facility in Houston, Texas, a
surface impoundment is used as an aeration basin for biological
degradation of process waste water as required by the facility .s
NPDES permit. As detailed above, some decharacterized waste water
629
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is also commingled with other process waste water. The aeration
basin is irregularly shaped and approximately five acres in size
with a nominal basin depth of eight feet. Twenty surface aerators
supply dissolved oxygen to the aeration basin for biological
oxidation of soluble organics in the waste water. The basin is
located at the western edge of the property adjacent to. property
owned byariother chemical manufacturer and occupied by storage
tanks and other chemical process equipment. Rohm and Haas plant
processes surround the basin on the remaining sides.
Estimated emissions from the basin are less than two tons per year
(less than eleven pounds per day)based on modeling. Discharges of
treated waste water from the facility are already regulated under - , -
the Clean Water Act (CWA). ' - ,' ' ,
The basin "cover" required under 40 CFR ° 265 Subpart CC and
incorporated into the proposed Phase IV regulations would not be
technically feasible, let alone economically feasible, to construct
at the Rohm and Haas Houston Plant for many reasons. First, it is -
not possible to design an air handling system which could supply ' .
the amount of oxygen needed for five acres of biomass in a covered
basin. By design, natural air flow across the basin provides oxygen .
to the surface aerators and cooling to the basins. The surface
aerators capture and disperse oxygen from the air into the basin
water to continually replenish dissolved oxygen. A cover would stop
the necessary air flow across the aeration.basin which is critical
for basin operation., Without oxygen, the microbial populations
would not be able to process dissolved organics in the basin
water and treatment efficiency would be significantly reduced so
that it would no longer provide effective treatment.
Surface aerator operation and air flow across the basin also cool
the biomass, in the basin and prevent the microbial populations from
overheating and expiring. Microbial action in the basin is
inherently exothermic (i.e. heat is produced). This heat must
be removed or the biomass will be unable to support the treatment
efficiency required by the permit and the LDR Phase III. Heat
exchanger or cooling towers could not be used to remove heat from
the biomass in the basin without becoming fouled because of
the characteristics of the aeration basin s contents. Without
removal of excess heat, covering the basin would create a giant
oven in which the microbial populations would be destroyed within a
matter of days.
It is not possible to design an economical treatment system for
the infinitesimally small ampunt of contaminants potentially
present in the air after it passes over the basin and is captured ,
630
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by a cover. Moreover, even if the basin could be covered,- the
blowers needed to supply critical air flow across the basin would
likely generate significantly more air emissions than the limited
air emissions currently produced by the aeration basin. Covering -
the basin would not be more protective of human health and the
environment than the current treatment system.
/There is insufficient available land area to support the structure
for a cover. As noted above, the basins are landlocked. Without
sufficient space for a support structure, a cover could not be
built over the basins alone. A cover over the facility would;
necessarily cover parts of processes located on both Rohm and Haas
and the adjacent property. That would create explosion or fire
hazards and jeopardize human health and the environment.
The final reason a cover is not technically or economically ~'
feasible is that any modifications to the surface impoundment would
require the entire production facility to be shut down. The plant
cannot operate without facilities to handle and treat the ; .
3.4million gallons per day of waste water. The facility does not
have sufficient storage capacity to hold the process waste.water
during major modification to the aeration Basin. A shut down of
this vital plant would be devastating to the entire North
American operations of Rohm and Haas because the Houston plant
manufactures most of the monomer that is used at other Rohm and
Haas plants. . N V , .
Therefore, the only technically feasible option for this facility
would be to construct a totally new waste water treatment facility, ,
There is no justification for this expenditure given the fact that
the current CWA permits already provide the necessary protection of
human health and the environment.
Even if an exclusion applies so that the. air emissions do not
require controls, the costs and burdens of Option 2 would be heavy.
Rohm and Haas would expect to expend$25.000 - $50,000 and at least
100 hours of engineer and unit personnel time over the course of
six months simply to further statistically sample and analyze the
characteristic waste streams, determine the treatment efficiency of
the impoundments, evaluate the applicability of the exemptions, and
clarify outstanding questions.
Rohm and Haas emphasizes that air emissions from surface
impoundments should be addressed under the Clean Air Act rather
than under the land disposal restrictions. Aside from high cost and .
limited environmental benefit, the LDRs will address only a
tiny fraction of the potential sources of air emissions, namely the
VOCs in deactivated characteristic waste containing underlying
631
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'hazardous constituents above UTS. By contrast, under the Clean Air
Act, EPA would have jurisdiction to look at the total emissions
from the impoundments, make'a specific judgment about the overall
threat to human health and the-ehvironment, and tailor the rules' to
the actual threats.
The definition of VO must be clarified V
In the initial review of the proposed rule, Rohm and Haas has
encountered difficulty in determining exactly what is a volatile
organic ("VO") that would be covered by the rule. Specifically,'
the corrosive waste water generated at the Houston facility
may contain hydrogen cyanide (HCN), other cyanide complexes, and
amenable cyanide above the UTS at its point of generation. The
waste water also contains ammonia. These compounds may also exceed
100 ppmw at the point of generation. Rohm and Haas believes these,
compounds are not VO s and would not be subject to Phase IV or
Subpart CC but has been unable to confirm that understanding.
Phase IV and Subpart CC give no assistance in determining whether
HCN is a VO such that the waste water will be subject to the air
emission rules. Subpart CC, 40 CFR ° 265.1084(a)(5)(iv)(C),
identifies Method25D of 40 CFR Part 60, Appendix A as a method to
measure VO concentration, but it does not identify what compounds
should be measured by that method. Several of the air regulations,
such as the HON, have lists of VOs, but they are not mentioned or
referred to in Subpart CC or Phase IV. Rohm and Haas suggests that.
the list of VOs subject to the rule be clearly identified, and that
HCN and ammonia should not be on that list
EPA should clarify that the treatment efficiency of the
impoundments need only be determined with respect to the LDR
regulated constituents
Phase IV Option 2 would extend the Subpart CC to those
impoundments that manage deactivated characteristic waste
containing underlying hazardous constituents("UHC") above the UTS .
and VOs above 100 ppmw at the point of generation. EPA SHOULD
clarify that the surface impoundment treatment efficiency
determination set forth in40 CFR ° 265.1083(c)(2)(iv)(A) only
applies to the individual VOs that are contained in the deactivated
characteristic waste that contains UHC above UTS. For example, at
the Rohm and Haas Texas facility, assuming for sake of argument
only that HCN is a VO, Rohm and Haas would only determine the
treatment efficiency of the impoundments for HCN, and not for the
methyl methacrylate or other organics that are contributed
by non-restricted waste water from other processes. As written,
Subpart GC would seem require the treatment efficiency to be
632
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.determined for every constituent that enters the impoundment, even
those that are not contributed by restricted waste streams.
If EPA adopts Option 2, it must allow sufficient time for
facilities to come into compliance
As stated above, if EPA finalizes Option 2 of the proposed Phase
IV, Rohm and Haas expects to undertake a major construction
project. This will require five years from the effective date to
design and construct. Therefore, Rohm and Haas suggests that
,'EPA allow the maximum possible time for compliance. Rohm and Haas
supports EPA s proposal to allow an initial two years for
compliance plus an additional two years capacity variance. Rohm
and Haas has previously submitted a Request for a .
Case-by-Case Extension and would request EPA to review and approve
that Request in addition to the four years that would be available
under, the Rule, , .
In the event that EPA decides to extend the RCRA Subpart CC air
emissions rules to surface impoundments that are affected by Phase
IV, Rohm and Haas suggests that the effective date of Phase IV air .
.rules be postponed until ailer the uncertainty that
currently surrounds Subpart CC is resolved. EPA has said that it
will publish a substantive notice and afford additional opportunity
to comment on Subpart CC, and EPA is also engaged' in legal
challenges to Subpart CC. Rohm and Haas further suggests that the
effective date of Phase IV should be postponed until after
fmalization of the Hazardous Waste Identification Rule (HWIR) for ,
process waste. That rule may exclude from Subtitle C standards
some of the waste streams that are now identified as hazardous
wastes. ' . '. . ; .-
VI. EPA Must Ensure It Has The Resources To Process A Large
Number Of Treatability Variances - .
r, *
f - .
In the event that EPA does not adopt Option 1, EPA must be
prepared to receive and process in a timely manner a large number
of treatability variances. As described above, Rohm and Haas
operates a sophisticated system that pre-treats its
major characteristic waste stream before commingling in the
centralized waste water treatment system. Rohm and Haas believes
it can demonstrate that system constitutes the best demonstrated .
available technology for that stream, and is sufficient to meet .
the ."minimize threat" levels required by C WM y. EPA. If the Land
Disposal Restrictions Phase IV severely impacts Rohm and Haas
operations, it may well file a request for a treatability variance
in order to have its existing pre-treatment regimen declared
633
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-sufficient to meet the LDR and thereby be exempt from Phases III
and IV. Considering the cost of upgrading impoundments or'
converting to tank based systems to meet Phase IV requirements,
EPA SHOULD expect a great deal of generator interest in . '
treatability variances.' ' . . ..-.,
RESPONSE '" ' .
In the August 22,1995 Phase IV proposal, EPA discussed three options for'ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrdsivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, .1996, the
President signed the Land Disposal Program Flexibility Act of 1.996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will riot promulgate provisions for managing leaks, sludges, and-air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the, characteristic is removed and the wastes are subsequently 'treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings-of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. '
634
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DGN . PH4P081 . , -
COMMENTER Rohm and Haas . - .
RESPONDER SS. . . ' '
SUBJECT EQUV, . '
SUBJNUM 081. ' . ' . " . . . '
COMMENT
In 1990 EPA promulgated.the Third-Third rule (55 Fed. Reg. 22520, .
June 1,1990) that required the deactivation of hazardous waste
prior to land disposal. In a centralized waste water treatment v
system subject to the Clean Water Act, this deactivation could be
. accomplished^ means of dilution or commingling with other waste
streams. Rohm and Haas believes that was the correct approach under /
the Land Disposal restrictions ("LDRs") and would support
legislation that would return the program to the status quo prior ,
to Chemical Waste Management v. EPA, 976F.2d2, cert, denied .
113S.CT 1961 (1992) (CWM v. EPA). Such a bill has recently been ,.
proposed in the House of Representatives, and Rohm and Haas urges
' EPA to actively support passage of a bill that woukTaccomplish ' ...
that goal. Rohm and Haas is considering communicating its support
for this goal to its legislative delegation, and the likelihood of
passage may be enhanced if EPA also demonstrates its support. ,
RESPONSE: ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the*
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
1 "
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to '.
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
635 .
-------
regulation.
j ' ,
The characteristic can be removed by any means, inducting dilution or other deactivation through {
aggregation of different waste streams preceding land disposal.
636
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DCN . PH4P081 ' . ' . . l
COMMENTER Rohm and Haas -
RESPONDER SS ' .
SUBJECT EQUV
S.UBJNUM 081 '
COMMENT " . ' . '-'^ :.*'
Rohm and Haas Company ("Rohm and Haas") hereby submits its < .
Comments on the Land Disposal Restrictions Phase IV Proposed Rule,
,60 Fed. Reg. 43654, Aug. 22,19,95 ("Phase IV"). As discussed in . '
., . detail below, Rohm and Haas primary focus in these comments is the ',.- ,.(
; high costs and minimal benefit that will be realized by the air ' '.
emission rules of the Phase IV proposal. Specifically, Rohm and . "
Haas expects Option 2 of the proposed rule to require the
expenditure of $ 100 million for installation of anew,. . "-...'
tank-based waste water treatment system. However, that system will ,
not be required to reduce air emissions below those of the current -
land-based system and will have limited benefit for the ~ .
environment. This result is patently outrageous and should be
avoided by adopting Option 1 as described in the proposed rule.
Rohm and Haas appreciates the opportunity to participate in this
rulemaking and would be pleased to'discuss these Comments at EPA s
convenience. Rohm and Haas is a member of the Chemical
Manufacturer s Association ("CMA") and supports the comments
. submitted by CMA. Rohm and Haas is submitting separate Comments '
in order to emphasize issues of particular importance to Rohm and
; ' Haas. ;'' . ._.. ' - _.-"
* ^ ' . -"
RESPONSE: ' .
The Agency notes the commenter's support for comments submitted by CMA.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized ,
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
'. a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660),
, Today's Phase IV final rule will not .promulgate provisions for managing, leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
- in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
637
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Drinking Water Act. . ' .
However,-the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may /
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , ,
638
.
-------
DCN .PH4P085
COMMENTER EOF . , V
RESPONDER SS. .- , ' .
SUBJECT EQUV , - .,-",. ' . , .
SUBJNUM 0.85' - ''
COMMENT - . ' . , ' ' ,,'',. - -
2. Sludge Management '
EPA's proposal would require treatment of the sludge prior to land
disposal if any of the underlying hazardous constituents in the ...
sludge exceeds UTS. However, EPA would allow reliance on generator
knowledge, in lieu of sampling and analysis, to determine
.' the concentration of contaminants in the sludge. See 60 FR 43675.
'EPA offers no evidentiary basis for concluding facility '
owners/operators can determine sludge concentrations of . " ' . ,
all underlying hazardous constituents to the degree of precision1
necessary for determining compliance with UTS concentrations. EPA
fails to offer such evidence because none^xists- that level of
precision cannot be reached for all relevant constituents without
sampling and analysis. Therefore, the proposal is substantially .
deficient in this regard. . -
1 i ( , ' '
RESPONSE ' . s ' ' ' ' ' ' . : .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks,.sludges, and air emissions from surface impoundments in systems
regulated by the clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8j 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. >' '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . . ..'..'"'.
639
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There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
equivalent systems, and.for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standard is recovery of
organics) remain prohibited unless treated pursuant by the promulgated method. '
640
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DCN PH4P085 . . v '
COMMENTER EOF
RESPONDER, PMC
SUBJECT, EQUV ' , , . ' ' '
SUBJNUM 085
COMMENT , , . '.,".
Option 1 will simply maintain the status quo, and thus fail to
establish the systematic and effective program needed to address ' ,
the risks posed by the impoundments covered in this rulemakirig.
Existing federal and state requirements are grossly insufficient
as a substitute for immediate EPA action, ' .
While Option 2 is superior to Option 1, a series of unwarranted
exemptions and a complete lack of emphasis on preventing, .
groundwater releases substantially compromises its ability
to protect human health and the environment. Option 3 is
prematurely rejected by the Agency in the case of metals.
A strengthened Option 2 combined with prohibitions on metals in
wastewater treatment system impoundments would constitute a
meaningful response to the Chemical Waste Management decision.
Under Option 1, EPA would rely upon the Phase III LDR rules
addressing end-of-pipe discharges to comply with the Court decision
in Chemical Waste Management. In effect, EPA would defer to
existing programs which the Agency argues "tend to protect"
against impoundment leaks, improper sludge management, and air
emissions. See 60 FR 43 65 9.However, even a cursory review of such
* programs indicates the absence of the comprehensive and effective
. controls necessary to meet the standard governing this rulemaking
that the threat from decharacterized wastewaters are
"minimized" pursuant to Section 3004(m) of RCRA.
First and foremost, the human health and environmental threats
from decharacterized wastewater impoundment air emissions, leaks to
groundwater, and improper sludge management are not systematically
addressed at all under the Clean Water Act or any other federal
environmental law. Indeed, "in reviewing EPA regulatory programs,
. the Agency determined that there was no existing or planned program
specifically addressing leaks, sludges, and air emissions from
surface impoundments accepting decharacterized wastes.'Technical
Support Document at 41.,, . ,
Therefore, EPA attempts to justify Option 1 through a patchwork of
existing programs that cannot possibly substitute for a meaningful
outcome in this mlemaking. For example, EPA suggests since 42% of
the facilities that would be affected are RCRA treatment,-
storage, and disposal facilities (TSDs) requiring a permit for .
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units other than the decharacterized
i ' /
3 Effluent guidelines sampling and analysis data undergo technical
' review by the regulated community, and are subject to, "strict" data
quality assurance and quality control procedures administered by a
Sample Control Center dedicated for this purpose.:EPA Technical
Support Document at 5-20, 5-21. .
wastewater impoundments, reliance on Section 3004(u)bf RCRA
, corrective action, authority may adequately protect against
groundwater-releases. 60 FR 43659. This suggestion is absurd for at
least the following reasons. First, if 42% are RCRA TSDs, 58%are
not, so the Agency's Section 3004(u) argument is inapplicable to
most of the facilities. Second, corrective action is not an
adequate substitute for preventing environmental releases in the
first instance, since the principle purpose of RCRA generally and
the LDR program particularly is release prevention-or minimization.
Finally, Section 3004(u) of RCRA does not even require the
monitoring of decharacterized wastewater impoundments to
detect contamination, so identifying leaks will be unlikely. 4
EPA then observes some of the industrial sectors covered by this
rulemaking are or will be subject to air emission control :
requirements promulgated pursuant to Section 112 of the Clean Air
Act. While EPA is factually correct in this regard, other sectors
will not be subject to air emission controls absent EPA action in
the Phase IV LDR rulemaking. See 60FR 43660; Thus, significant air
emissions will remain uncontrolled in the absence of the phase IV
rules. 5 .
EPA fails to identify even one federal program addressing improper
sludge management, and acknowledges 37 states lack any sludge
requirements. 6 60 FR 43660. :
In short, except in the case of air emission controls for some > -
industrial sectors, there is no federal program that acts to
prevent or minimize releases to air, groundwater, or land
from either decharacterized wastewater impoundments or the disposal
of the sludge accumulating therein.
Faced with little or no federal basis for Option 1, EPA then
. suggests state programs may form a basis for taking no action in
this rulemaking, particularly with respect to impoundment leaks. In
support of this concept; the Agency merely asserts 36 states
have"some" regulations applicable to decharacterized wastewater
impoundments, admittedly without an analysis of the nature or
efficacy of those requirements. 60 FR 43660. ' .
4 See the comments below on proposed Option 2 for additional .l
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discussion on the inadequacy of relying upon corrective action
authorities alone to comply with the Court of Appeals opinion,.
and on the/shortcomings of deferring to Section 3004(u)
authorities.
S.Where meaningful Clean Air Act controls are actually in place,
it may be appropriate to defer to such rules, therefore EPA may
still promulgate air emission controls in this rulemaking and
avoid applying unnecessary and duplicative requirements. See
discussion below on Option 2. . . . -
6 EPA notes it is "actively" investigating whether to list such
additional wastes as hazardous, but'this "active investigation"
does not match the priority sectors covered in this rulemaking. In
fact, EPA .has no plans underway which commit the estimated $1.4
million and 9.5 FTE necessary to undertake such listings over a
3-5 year period. See Attachment to letter from Robert
Hickmott, EPA Assistant Administratpr to Congressman Ron Wyden,
Novembers, 1995, at 4. '';.'.
Presumably, this number "36" is derived from the recently released
EPA study of state nonhazardous waste programs: The study includes
a section on surface impoundment requirements, including design
standards and groundwater monitoring^ the cornerstone of an
effective surface impoundment regulatory program.
According to the EPA study, only 26 states require "some form of
liner" for any industrial waste surface impoundments, and
substantially fewer require leachate collection systems. EPA State
Program Report at 6: Therefore, EPA's own data.indicates almost
half of the states completely lack programs aimed at preventing or
minimizing groundwater releases from industrial waste impoundments
heretofore unregulated under Subtitle C of RCRA.
Significantly, a closer review of individual state programs
reveals even less coverage for the surface impoundments at issue in
this rulemaking. The Illinois design standards do hot apply to
onsite facilities, the Florida requirements apply only to
impoundments handling landfill leachate; and the standards in New
. York and Colorado do not apply to facilities subject to Clean Water
Act discharge requirements. Id, Table 3. In addition, the
Texas requirements are voluntary, and the state does not even :
perform an engineering review of a surface impoundment design. Id.
See also Environmental Safeguards for Industrial Facilities need to
be Developed, United States General Accounting Office, April 1990,
p. 30. In South Dakota, Rhode Island, and South Carolina,
grandfathering and other provisions likely exempt many of the
, impoundments covered in the instant rulemaking. Therefore,
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the number of states with relevant design standards is no more than ' ' -
18. ' . . '. '
In the vast majority of the remaining 18 states, design :
requirements are applied on a case-by-case basis. EPA State Program .
Report at 9. EPA makes no attempt to evaluate whether the design ' ',
standards would actually be imposed on the surface impoundments
at issue in this rulemaking, and whether such design standards are '
adequate. For example, Maine is counted among the states with
case-by-case liner requirements, but in fact Maine officials do not
typically assess the need for liners or impose such requirements
when processing permits for Clean Water Act wastewater treatment , .
systems. Therefore, while states may possess the authority to
prevent grdundwater releases, EPA provides no evidence the ' ^ ,
authority is actually used, and used appropriately. , .
Similarly, according to the EPA study, only 28 states require
groundwater monitoring for any industrial waste surface '
impoundments. EPA State Program Report at 8. Therefore, almost half
the states completely fail to impose requirements to detect
groundwater releases from industrial waste surface impoundments . .
heretofore unregulated under Subtitle C of RCRA.
Again, a closer examination of individual state programs indicates
the Illinois, Florida,
7 State Requirements for Industrial Non-Hazardous Waste Management
Facilities, Office of Solid Waste, EPA, October 1995 (hereafter
"EPA State Program Report").
Colorado, New York, South Dakota, South Carolina, and Texas
requirements are inapplicable to the impoundments at issue in this
rulemaking for the same reasons as the liner requirements. Id.,
Table 3A. In addition, the Montana requirements apply to
facilities not discharging to surface waters. Id. Moreover, ~v
grand fathering provisions may exempt decharacterized wastewater
impoundments from groundwater monitoring requirements in New !
Mexico. Therefore, the number of states with relevant monitoring
requirements is no more than 19.
In many of these 19 states groundwater monitoring requirements are
imposed on a case-by-case basis. The observation above regarding
states such as Maine not typically using available authorities .
applies with equal force to both liner and grbundwater monitoring
requirements. Therefore, while states may possess the discretion
to impose certain requirements, there is no evidence in the record .
that the authorities are used, and used appropriately. /
Furthermore, there is no evidence the requirements are properly
enforced even when initially imposed. For example, New Hampshire is
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-counted as a state with groundwater monitoring requirements, but
EOF is unaware of any regular inspection program applicable to the "
relevant impoundments in that state.
In summary, there is no factual foundation for Option 1. The Phase
IV LDR rules provide the only opportunity for timely and systematic
controls over non-surface water toxic contaminant releases from ;
decharacterized wastewater impoundments.
Although Option 2 would establish a set of requirements for .
decharacterized wastewaters, the option as proposed contains '
numerous exemptions; In addition, the management standards
themselves have important weaknesses, as discussed in subsection B
-of this section.
A. Proposed Exemptions .... -
1. Secondary and Tertiary Impoundments .
EPA proposes to exclude biotreatment and post-biotreatment '
impoundments from the management standards discussed below
governing leaks and sludge management: The basis for the exemption
is the allegedly "lower risks" posed by such impoundments. See 60
FR43660, . '
This generic exemption for leaks is inappropriate for several
reasons. First, EPA proposed a second risk-based exemption for -
leaks discussed immediately .below, based upon the concentration of
toxic constituents in the impoundment wastewaters. A ,
risk-based exemption taking into account actual constituent
concentrations has greater validity and precision than the instant
exemption based upon impoundment function.8 Accordingly, secondary
and tertiary impoundments should be judged individually under the
other risk-based exemption rather than generically excluded.
The importance of evaluating each secondary and tertiary
impoundment is underscored by EPA's own sampling data. In the
Pharmaceuticals sector, the majority of biotreatment impoundment
wastewater samples and facilities sampled exceeded a 1 x 10-5 ;
cancer, risk. In addition, at 60% of the facilities with
post-biological treatment impoundment wastewater sampling data, the
.impoundment wastewaters posed a cancer risk greater than 1 x .
10-5.RIA, Exhibit 2-22.
Similarly, in the OCPSF sector, at half of the facilities with
biotreatment impoundment sampling data, the wastewaters exceeded a
1 x 10-5 cancer risk level, and at 40% of the facilities the
wastewaters exceeded a cancer risk of 1 x 1074. Id. Therefore, the.
function of the impoundment is not a reliable indicator of safety
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on a generic basis.
Second, secondary and tertiary impoundments are not entitled to
special status as a class in the instant rulemaking. While EPA
correctly notes (at 60 FR 43663) that such impoundments are exempt
from minimum technology requirements under Section3005(j)(3), the
Agency fails to acknowledge the more relevant provision of RCRA
which does not exempt such impoundments from the land disposal
restrictions program. See Section 300S(j)(ll) of RCRA. Indeed,
other impoundments may be used to treat restricted wastes without
complying with minimum technology requirements (MTRs), but
secondary and tertiary impoundments are not similarly authorized,
presumably because the terms of the Section 30050X3) exemption
fail to ensure the impoundment contents will not leak into the
environment. See 51 FR 40602 (November 7, 1986). . .
2. Risk-Based Exemption
EPA proposes to exclude from the requirements governing leaks.
those surface impoundments containing hazardous constituents below
a trigger level. The proposed trigger level is 10 times the Maximum
Contaminant Level (MCL) if the constituent has an
8 Option 2 is proposed by EPA as a methodology for distinguishing
between treatment impoundments, and impoundments operating as both
treatment and disposal units. See 60 FR43657. A generic exemption
based solely upon the method of treatment employed in an impoundment
cannot possibly identify those impoundments also functioning as
disposal units (i:e.,treatment units that also leak), and is' ' .
therefore inconsistent with the underlying rationale of
the proposal. .
MCL; if no MCL exists, then 10 times the state or tribal
risk-based number; and in the absence of either an MCL or other
.risk-based number, the Universal Treatment Standard(UTS) becomes
the trigger level. 9 '
While EOF does not oppose a properly constructed risk-based
exemption, the terms of the proposal are substantially flawed in
many respects. First, MCLs are not an appropriate basis for trigger
levels in this context. MCLs are drinking water standards for
public water supplies which may be substantially affected by /
irrelevant considerations such as the cost and technologies
associated with public drinking water treatment systems. Moreover,
MCLs do not apply to private water systems where water treatment
may be unavailable, and protection of such private wells is a
principal purpose of the RCRA program. The use of MCLs also fails
to consider ecologic risks and potential human exposure routes
other than groundwater ingestkm. Accordingly, MCLs are not pure or
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comprehensive risk-based standards, and are often based upon
factors unrelated to whether .wastewater contaminants would pose a
threat to human health wlien released into the groundwater.-
9 The Universal Treatment Standards are concentrations of over
200 toxic compounds that hazardous wastes must meet prior to land
disposal. See 59.FR 47982 (September 19,1994). '
Significantly, for some hazardous constituents, the pure risk .
levels underlying the MCLs are exceedingly high. Approximately half
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of the existing MCLs are for carcinogens, and the vast majority of
those MCLs are set at levels exceeding a 1-x 10r5 cancer risk,-
including arsenic and other MCLs posing a greater risk than 1 X
1 0-4. 10 Therefore, both the variability between and the weakness
of some MGLs precludes their use as valid risk-biased numbers.
Second, there is no evidentiary support in the rulemaking record
or, otherwise for a dilution and attenuation factor (DAF) of 10 in
this context. Previous EPA modeling efforts employing a DAF of 10,
such as in the delisting context, involved disposal in landfills.
As EPA readily acknowledges, the DAFs associated with surface
impoundments are smaller than for landfills, thus the Agency's .
modeling probably understates downgradient contaminant
concentrations. See 55 FR 11825 (March 29, 1990). Accordingly, if
EPA utilizes 10 as the appropriate DAFs for delisting high volume
landfilled wastes, a smaller DAF is necessary in the instant
rulemaking. 1 1 Indeed, in a very recent letter to Congressman
Wyden, EPA observes DAFs of 6 can occur at surface
impoundments covered in this rulemaking. See Attachment to letter
from Robert Hickmott, Assistant Administrator to Representative
Wyden, November 3, 1995, at 3.
Third, EPA's proposal ignores the cumulative risks associated with
multiple constituents leaking from the impoundment at the same
time. Since the typical groundwater damage case involves
the release of multiple contaminants simultaneously, and many of
the impoundment wastewaters at issue in the instant rulemaking
contain multiple constituents of concern (see 60 FR 43658-9),
The. Agency's proposed trigger levels substantially understate the
risks posed by leaking impoundments. This failure to consider risks
posed by the release of multiple constituents is contrary to EPA
risk assessment policy in the RCRA program and elsewhere
throughout The Agency. See e.g., 59 FR 66075 (December 22, 1994).
Risks are also understated because of the failure to consider the
additive impacts of exposure to background levels of contamination
and/or other sources of contaminant exposure in addition to surface
impoundment leaks. Therefore, EPA's proposed trigger levels are
not based upon the true health risks posed by the groundwater
releases.
Fourth, automatic use of a state or tribal groundwater protection
number, without a minimal federal standard as to human health and
environmental risks allowed by such a state/tribal number, fails to
, assure protection of human health arid the environment or
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compliance with-the minimized .threat standard underlying Section '.
3004(m) of RCRA. For example, Montana recently adopted a
groundwater standard for arsenic consisting of the 1x10-3 risk
level or the MCL, whichever is more stringent. As discussed_above,
even the more stringent of these standards does not adequately
. protect human health and the environment. For other carcinogens,
Montana adopted a 1 x 10-5 risk level groundwater standard. Again,
this dichotomy between arsenic and other-carcinogens cannot be
justified based upon considerations relevant to this rulemaking.
10 In addition, it is unclear whether EPA would deem the existing
15 ppb "action level" for lead an MCL for the purposes of this
rulemaking. Such a course of action would be inappropriate, since
the action level applies to first draw samples from the consumer's
tap, and is used to trigger .
a response by the drinking water system when exceeded in more than
10% of the taps tested. As EPA noted when promulgating the action
level, it corresponds to approximately 5 ppb .as an average lead .
exposure. 56 FR 26460,26477 (June 7, 1991). In other words, the
higher action level was designed to reflect the elevated
concentrations experienced in first draw samples, so that
overall lead exposures would not exceed 5 ppb if the first draw
samples did not exceed 15 ppb. Therefore, at most, 5 ppb is the
appropriate risk-based number for lead in this rulemaking.
11 Even if EPA presented evidence in the record supporting a DAF
of 10 for surface impoundment wastewaters in either the delisting
or HWIR context, the DAF of 10 is still inappropriate in this
context because the "minimized threat" standard in Section
3004(m)governing the instant rulemaking requires a more stringent
analysis than simply determining levels for classifying a waste as
hazardous. As the Court held in Chemical Waste Management, the
fact that a waste no longer meets EPA's definition of a hazardous
waste does not necessarily mean The Agency has satisfied the .
minimized threat standard of Section 3004(m) of RCRA. Indeed,
EPA must take action pursuant to Section 3004(m) unless EPA can
demonstrate the risk from surface impoundment leaks is "minimal"
for the wastewaters covered in the instant rulemaking. EPA cannot
meet this evidentiary burden by simply borrowing DAFs from other
* portions of the regulatory, - program where they are used for
different regulatory purposes under less stringent statutory
directives. .
Fifth, the proposed adoption of the UTS number as the default
"risk-based level" is inappropriate for both legal and policy
reasons. Pursuant to Section 3004(m)(2) of RCRA, the UTS values
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are intended to satisfy the minimized threat standard for wastes
when land disposed in units meeting subtitle C design requirements
multiple liners with leachate collection/leak detection . . "
systems, not the unlined surface impoundments at issue in this
rulemaking. Moreover, the UTS represents the concentration of ,
contaminants remaining after applying Best Demonstrated
Available Technology (BOAT), thus it is not risk-based. ,
Therefore, the release of contaminants into groundwater at UTS
concentrations (or 10 times this level) cannot ensure protect human
health and the environment and does not comply with the minimized
threat standard governing this rulemaking. 12 The UTS number
is neither relevant nor valid for this purpose. 13
12 Significantly, EPA does not even attempt the slightest
demonstration in the record for this rulemaking that UTS numbers
are adequate surrogates for meaningful health and
environmental risk-based standards. '
13 EPA's proposal regarding groundwater protection standards
essentially acknowledges the irrelevance of UTS numbers as
indicators of human health or environmental risks. The
proposal requires use of MCLs, and where MGLs are unavailable, use
of the background concentration as the groundwater protection
standard. See 6Q FR 43672. The use of UTS numbers as
appropriate measures of groundwater contaminant risks is not even
discussed by the Agency. It should also be noted that use of the
MCL as a groundwater protection standard is inappropriate for
the reasons provided above regarding the proposed trigger level.
Sixth, annual sampling of the wastewaters is proposed to determine
whether wastewaters qualify for the risk-based exclusion. No
evidence is provided which would demonstrate annual sampling is
sufficient to determine compliance, taking into account routine
but significant .variation in wastewater concentrations,
particularly at batch plant operations. Significantly, EPA often
requires weekly or monthly sampling under the Clean Water Act for
the same industrial sectors and the same chemicals at issue in
this rulemaking. For example, EPA recently proposed weekly sampling
for toxic contaminants generated by the Pharmaceuticals industry.
See 60 FR 21657 (May 2,1995). Discharge limits promulgated for the
OCPSF sector are based upon daily maximum and monthly average
limits. See 40CFR 414.91. See also. 60 FR 5483 (January 27,1995).
If these sampling frequencies are necessary to ensure compliance
with impoundment effluent standards, at least such frequencies are
required to ensure compliance with concentrations applicable
to impoundment inputs which may be subject to even greater
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variation since they are often pre-treatnient concentrations.
" Similar sampling approaches are especially appropriate in
this context given EPA's desire to accommodate and integrate the -
RCRA and Clean Water Act requirements as much as possible.
3. Deferral to Clean Air Act Rules
EPA proposes to exempt impoundments from air emission controls in
the instant rulemaking if Clean Air Act rules currently regulate
VOC emissions from such impoundments or if CAA rules covering the
impoundments are anticipated "in the near future." See 60 FR
. 43660.1nsofar as EPA's proposal defers to Clean Air Act rules .
currently in effect which actually address the VOC releases from
the impoundments covered by this rulemaking, the concept has merit." '
However, since EPA never defines what is meant by "in the near '
future," the aspect of the proposal regarding anticipated rules is ,
extremely ambiguous. Any deferral applicable to CAA RULES which are
' not finalized prior to the effective date of the rules will delay .
control of the emissions in violation of the minimized ^threat > '.
standard governing this rulemaking.' 14 As discussed further below, .
EPA's proposed effective date for the instant rules is contrary
to law and sound policy. The appropriate national effective date is
no later than two years from date of promulgation. ,
14 An exception may be appropriate for rules proposed but not yet
finalized prior to the effective date, where the final rules are ?
scheduled for promulgation within the coming year to 18 months, and
the exception expires by the expected promulgation date.
4. Deferral to State/Tribal Programs
EPA proposes to defer regulation under the instant rulemaking if
state/tribal programs control releases of hazardous constituents in
a manner rendering Phase IV controls unnecessary. 60 FR 43661. With , ;
respect to the leak standards, EPA indicates it would defer to
state/tribal programs that are "substantially similar" to the
proposed requirements. 60 FR43669. ,
Since no discussion is provided as to the scope of the
requirements that may be deferred, the meaning of "substantially
similar," the criteria for determining whether a .
state/tribal program meets this test, the process by which EPA
would determine "substantiaTequivalency, and whether the public
would be provided an opportunity to comment on such a
determination, this aspect of EPA's preamble cannot possibly
constitute a concrete proposal ripe for public comment. However,
EPA must bear in mind that if it wishes to develop a proposal along
these lines, Sections 3006 and 3009 of RCRA explicitly
reject reliance on state requirements less stringent than
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- comparable federal requirements, and expressly provide for public
notice and participation in the state authorization process.
EPA CANNOT bypass these statutory provisions by calling its
approval process a "deferral" rather than an "authorization."
5. Deferral to Section 3004(u) Regulations ,
EPA proposes to exempt from regulation the decharacterized
wastewater impoundments at42% of the affected facilities simply
because those facilities require a Subtitle C permit for units
other than the impouridrhents. EPA reasons the permit for the other
units subjects the decharacterized wastewater impoundments to
corrective action requirements pursuant to Section 3 004(u) of RCRA.-
. 60 FR 43659. Moreover, EPA (incorrectly) asserts if
these facilities are currently in compliance with Subtitle C
requirements for groundwater monitoring and corrective action, the
monitoring and controls associated with air emissions, leak
controls, and sludges provided in the instant rule for
decharacterized wastewater impoundments would already be in place.
RIAat'2-10. ..-'.' . .
However, as even a cursory review of EPA's rules indicates,
Section 3004(u) requirements are not even remotely equivalent to
the Option 2 controls. There are no monitoring requirements for .
either air or groundwater releases at decharacterized .
wastewater impoundments or .any other solid waste management units.
See 40 CFR264. 101. .In fact, the only evaluation such units are
required to receive consists of a desk top review of available
information, and a visual site inspection. < See 55 FR 30801 (July
27, 1990).Releasestotheairandgroundwatefpriortothe
evaluations may remain undetected, and no ongoing monitoring of the
unit is required after the initial evaluation is performed.
Furthermore, no threshold for controlling air emissions is '
established, and no standards governing air emission controls are
imposed. In addition, no requirements apply to the management of
sludge that may be removed from the unit. Therefore, the fact that
an impoundment may be subject to Section 3004(u) authorities does
not mean there are comparable air or groundwater monitoring
requirements, air emission controls, or sludge management
requirements under EPA's rules which would ensure equivalent
Protection to the Option 2 controls.
6. Minimum Technology Requirements !
EPA proposed exempting units meeting minimum technology
requirements (MTRs) from all Option 2 requirements, including
sludge management and air emission controls. See 60FR 43660. Yet
mere compliance with MTRs accomplishes little or nothing to ensure
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threats are minimized from the disposal of impoundment sludge or '
VOC air emissions. Indeed, Congress recognized these potential
impacts by: (1) adding annual sludge removal as a condition of
allowing the continued use of certain storage and treatment
impoundments meeting MTRs; (2) linking the no migration standard
for LDR exemptions to releases into any environmental media; and .
(3) requiring the promulgation of air emission standards '
for surface impoundments in addition to the MTRs and LDR program.
See Sections3004(g)(5), 3004(n), and 3005(j)(l 1)(B) of RCRA,;.
Therefore, the proposed MTR exemption for sludge management and air
emission controls lacks both a legal and factual foundation.
B. Management Requirements for Non:Exempt Units
1. Leak Controls . ' .
EPA's proposed leak controls consist entirely of groiumwater
monitoring and corrective action. While the proposed requirements
contain significant shortcomings, the principal deficiency of the .
proposal is its failure to prevent or minimize groundwater
, releases into the environment. As EPA has acknowledged from the
early days of the RCRA program, groundwater monitoringVcorrective
action provides a useful second line of defense in the event
release control requirements fail, but such requirements rely upon .
complicated and uncertain predictions regarding contaminant fate
and transport that do not provide an adequate margin of safety by
themselves to protect fragile groundwater resources. See 47FR .
32283-85 (July 26,1982). .
This need for release prevention was emphasized and incorporated
into RCRA by the 1984Amendments, particularly in the case of
surface impoundments like those covered in the instant mlemaking.
See Section 1002(b)(6),(7); 1003(a)(5). In the context of the
land disposal restrictions program, only surface impoundments that
are not leaking were authorized by Congress to receive for storage
or treatment otherwise restricted wastewaters. See Section
30050)01)(A) of RCRA. Accordingly, EPA's failure to incorporate
release prevention/minimization into the Option 2 controls violates
both the statutory land disposal restriction requirements and the ,
underlying objectives of RCRA generally. The Agency proposal also
violates the policy embedded in the Pollution Prevention Act of.
1990 of encouraging pollution prevention and discouraging.,..
environmental releases. - ' ' .
EPA's failure to stress release prevention is all the more -.
egregious because of the special challenges posed by releases of
chlorinated solvents and other Dense Non-Aqueous Phase Liquids
(DNAPL) compounds; The Agency's own policy directives stress the
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unpredictable nature of these compounds in groundwater due to,their
, insolubility and propensity for migration as a separate liquid
phase moving across groundwater flow. 15. Leading groundwater
v scientists confirm the extraordinary difficulty associated with
both monitoring the migration of DNAPLs and. cleaning up releases
once they are detected. 16 Some of the principal constituents of . "' "'
concern in this rulemaking are DNAPLs, including
methylene chloride, chloroform, 1,2-Dichloroethane,
1,1,2,2-Tetrachloroethane, and carbon, tetrachloride. 17 See RIA,
Exhibit B-2. .
15 See e.g., OSWER Directive 9283.1-06 (May 27,1992); DNAPLs'- A.
Workshop Summary, EPA Office of Research and Development,
EPA/600/R-92/030, February 1992. . ,
16 See e.g., Pankow and Cherry, Dense Chlorinated Solvents and
other DNAPLs in Groundwater, Waterloo Press, 1996, pp. 14,15.
, 17 Id. At 4, 5. ! ,
Therefore, while reliance on groundwater monitoring and corrective
, action is inadequate by itself generally, it is particularly
foolhardy in the case of DNAPLs because contaminant detection is
extremely uncertain and restoration of the aquifer may not be
possible using available remediation technologies. Allowing
grpundwater releases with a high probability that such releases may
not.be detected or remediated will not protect human health and
the environment and cannot possibly comply with the statutory
"minimized threat" standard governing this rulemaking. 18
18 The Agency also violated the Pollution Prevention Act when it
failed to consider the impact of allowing additional releases of
hazardous constituents into the environment, particularly
DNAPLs, on otherwise available source reduction efforts. See 42
U.S.C. 13103(b)(2).
At a minimum, the Agency must incorporate into the leak controls a
requirement which ensures that surface impoundments receiving
decharacterized wastes are designed to prevent the release of
hazardous constituents into the environment. EPA can accomplish
this goal through a similarly drafted performance standard or
minimum design specifications, or both. However, should EPA utilize
a performance standard, a process must be created whereby unit
designs are reviewed by regulatory officials to determine
compliance with this standard and an opportunity for public
participation in such review is provided.
In addition to the failure to emphasize release prevention,
particular aspects of EPA's proposed ground water
monitoring/corrective action requirements lack merit. In some
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cases, EPA^adopts the Part 258,requirements without evaluating
whether the underlying rationale for their adoption applies in the
instant rulemaking. '
For example, EPA proposed extending the point of compliance for
" monitoring 'groundwater releases and taking corrective action up to
150/meters from the.surface impoundments, simply because that is
the maximum distance allowed for municipal.landfill
monitoring systems under Part 258. See 40 CFR 258.40(d). In
contrast, the relevant point of compliance for hazardous waste
units is the'edge of the unit boundary because early detection
facilitates successful and cost effective corrective action, and
reduces substantially the possibility the plume will migrate beyond
the owner/operator's control. See 40 CFR264.95; 47 FR 32285 (July
26,1982). -
In the case of municipal landfills, EPA promulgated the 150 meter
provision because of the"unique characteristics of municipal
landfills." The landfills are owned and operated by local
governments with very limited technical and economic resources,
and since the landfills are owned by local governments, potential,
groundwater use within the 150 meter radius of the unit can be
controlled in perpetuity, through local land use authorities. See
56FR 51068 (October 9,1991). Neither characteristic of municipal '
landfills is factually relevant to the instant rulemaking, and as a
matter of law, the owner/operator "practical capability" factor
decisive to the Agency in the municipal landfill rulemaking under
Section4010 of RCRA cannot be applied in the instant rulemaking.
19 Instead, EPA is compelled as a matter of law and policy to
establish the point of compliance at the waste management boundary.
19 EPA's finding that 42% of the facilities covered by the instant
rulemaking are facilities requiring a Subtitle C permit illustrates
that .largely the same industries already regulated under subtitle C
of RCRA are the principal industries affected by the instant
rulemaking. These industries now comply with the Subtitle C point
of compliance, and have substantial technical and economic
resources available to meet RCRA standards. Therefore, EPA's
appropriate'lpreference" for detecting contamination at the
earliest opportunity is the only relevant factor for '
consideration in this proceeding. See 56 FR 51068 (October 9,
1991).
EPA also proposed adoption of the remedy selection criteria of
Part 258, and self-implementation for all aspects of the
groundwater monitoring/corrective action program, including but not
limited to the selection of remedy at the site. Since the -
655
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remedy selection criteria in Part 258 include the "practical'
capability" of the owner/operator justified in that rulemaking
solely due to the statutory provisions of Section 4010 of RCRA,
the adoption of the same criteria in the instant rulemaking lacks
a sound legal and factual basis. See 56 FR 50983, 51090 (October 9, '
J99i). ; ; .
Moreover, EPA's twin rationales for the self-implementing aspects
of the municipal landfill program governing corrective action were '
the difficulties associated with authorizing from scratch state . .
municipal landfill programs in only a 24 month period, and the
expectation of additional rules covering public participation with
respect to both permitting and corrective action. See 56iFR 50995,
51091 (October 9, 1991). Again, neither rationale is relevant .
in the instant rulemaking since no further rules are contemplated,
and EPA is required to administer the LDR requirements until states
are authorized for the LDR revisions. Equally important, in the
Subtitle C context, EPA has stressed the importance of both
public participation and regulatory oversight in the corrective
action process. See 55 FR 30834,30847-50 (July 27, .1990).
EDF urges EPA to review all the municipal landfill groundwater
monitoring and corrective action requirements the Agency is
considering applying in the instant rulemaking, compare those
criteria to Subtitle C requirements, and revise the proposed
requirements which reflect inapplicable statutory or factual bases.
Significantly, EPA did perform such an analysis in at least one
area, and concluded that monitoring for the regulated constituents
covered in the rulemaking is more effective than monitoring for the
indicator parameters specified in the municipal landfill rule. See
60 FR 43671. EDF agrees, and urges EPA to extend this analysis to
other portions of the Phase IV rules as well. '
In its proposal, EPA indicated facilities with existing
groundwater monitoring and/or corrective action programs "may be
able to continue those programs in lieu of the
proposed regulations," even if such programs are not required by
state or federal law and presumably were never reviewed or approved
by regulatory authorities for efficacy or consistency with the
upcoming regulations. See 60 FR 43669; Insofar as EPA contemplates
deferring Option2 controls to inferior monitoring or corrective
action programs already in place, such deferral violates Sections
3006 and 3009 of RCRA, and fails to protect human health and the
environment Deferral to a substandard program .violates the
Congressional purpose underlying Sections 3006 and 3009 of RCRA
that minimum federal requirements are applied nationally.
656
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EPA proposes to reject the conceptual approach of restricting the
placement of wastes not amenable to treatment in Clean Water Act
systems. EPA's rationales for rejecting this approach lack merit as
applied to metals.
First, EPA argues restricting land placement is not necessary
because promulgation of the Option 2 controls would,protect human
health and the environment. See 60 FR 43677. As discussed above,
' Option 2 as proposed would not protect human health,and'
the environment. Of equal importance, even if Option 2 was
strengthened by limiting exemptions and including^design controls
to prevent grqundwater releases, two key purposes.of RCRA are
restricting land placement due to the "long-term
uncertainties"associated with land disposal, and simultaneously
encouraging" source reduction as the preferred form of waste
management. See Sections 1002(b)(7), 1003(b), 3004(g)of RCRA. The
LDR restrictions were enacted by the Congress in addition to
provisions related to strengthening minimum technology standards
and groundwater monitoring/corrective action requirements. And
exemptions to the LDRs were expressly crafted by the Congress
to ensure mere compliance with the MTRs and otherfequirements did
not undermine the congressional intent that land disposal would be
severely restricted: 20 Therefore, it is inappropriate for EPA to
equate the imposition of monitoring and cleanup requirements with
the policies underlying the LDR program. . .
Second, the technical concerns EPA raises about expressly
excluding certain types of wastes from biological treatment ail
relate to organic wastes. There is no disagreement about *
the inability of biological systems to treat metals, regardless of
system type or waste feed variation. .
According to a study prepared for the Environmental Technology
Council, most metals and inorganic chemicals are not used by
microorganisms thus they are not biodegradable, and the presence of
metals can inhibit the proper functioning of waste water biological
treatment systems. 21 In addition, the Chemical Manufacturers
Association retained a consultant to determine which compounds were
amenable to biotreatment utilizing both literature sources and
professional judgment, and no metals appear on that list. 22 .
Similarly, EDF is not aware of any evidence in the record linking"
the uncertainties of concern to EPA to metals.
Finally, EPA argues that by controlling the emissions and leaks,
EPA can be reasonably certain that "treatment" in the impoundment
is adequate. This argument is wholly .without merit. Monitoring and
cleaning up metal contaminant releases to groundwater
657
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hardly ensures treatment within the impoundment. In fact,
compliance with surface water discharge standards may be obtained
through the accumulation of metal contaminants in the sludge and/or.
grouhdwater releases, not treatment prior to discharge. ' .
20 See e.g., H. Rep. 98-198 Part 1, 98th Cong., 1st Sess. at 38
, (1983)("The Committee does not intend that the Administrator . '
circumvent the Committee's intent to restrict land disposal by . -
simply imposing additional conditions on land disposal.")21
Evaluation of the Biodegradability of UTS Constituents in .
Industrial Wastewater Treatment Lagoons, JHE Technology Systems,
xInc., April 1995, pp. 10,11, Table 7. \ ,
22 See July 16,1993' and September 8, 1993 letters with . ' *
attachments from Cindy Bryck, CMA to David Case of ETC
/ '
RESPONSE '
Iri.the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which'initially exhibited a hazardous characteristic of ignitabijity, corrosivity,.
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR
,43655-43677)), Furthermore, the treatment standards for TC metal wastes.in today's rule dp not
apply to TC metal wastes if the-characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . , .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the. Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ,
658
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DCN PH4P085
COMMENTER EDF
RESPONDER SS
SUBJECT EQUV
SUBJNUM 085 .
COMMENT
i - . . . ^
2. Sludge Management . . ,
EPA's proposal would require treatment of the sludge prior to land
disposal if any of the underlying hazardous constituents in the
sludge exceeds UTS. However, EPA would allow reliance oh generator
knowledge, in lieu of sampling and analysis, to determine ,
the concentration of contaminants in the sludge. See 60 FR 43675.
EPA offers no evidentiary, basis for concluding facility ' ,
owners/operators can determine sludge concentrations of ,
all underlying hazardous constituents to the degree of precision
necessary for determining compliance with UTS concentrations. EPA
fails to offer such evidence because none exists-that level of
precision cannot be reached for all relevant constituents without
sampling and analysis. Therefore, the proposal is substantially ' -
deficient in this regard.
RESPONSE: -.-,'.
The issue raised by the commenter pertains to the sampling and analysis requirements that were,
proposed as part of Option 2 of the Agency's original Phase IV proposed rule (60 FR 43654)
addressing equivalency of treatment in wastewater treatment systems regulated under the Clean
Water Act. In the August 22,1995 Phase TV proposal, EPA discussed three options for ensuring
.that underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the .
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options oh August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . \ , .
However, the Land Disposal Flexibility. Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
659
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surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.' ,
NOTEtoEPA:
, . Should this response also address methods and analytical precision for
sludge matrices?
660
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DCN PH4P085
COMMENTEREDF
RESPONDERSS .
SUBJECT EQUV . /
SUBJNUM 085
COMMENT , .-'.._' . ... ' ' " . . '
B. The Importance of this Rulemaking
t ' ' -. , -
At present, wastewaters that contain significant levels of toxic constituents are routinely managed
in unlined, unmonitored surface impoundments that are not regulated under existing federal
programs, and are largely unregulated at the state level as well: Though the contaminant levels do
not trigger the hazardous waste toxicity characteristic (in large part because the characteristic
only covers 38 chemicals), they are comparable to concentrations found in many listed hazardous
wastes, as discussed below. ...-'..-"<
These contaminants can and do migrate both to air and groundwater. Significantly, many of the
compounds found in these wastewaters include chlorinated solvents and other halogenated
organic chemicals that, upon leaking from an impoundment, form a Dense Non-Aqueous Phase
Liquid, or DNAPL. As 15 years of experience in the Superfund program has painfully shown,
such releases "are, in general, exceptionally difficult to clean up," and can persist for
decades or centuries. 1 In addition, DNAPL plumes can migrate in ways that are. exceedingly hard
to locate, thus plumes may unexpectedly contaminate wells used for drinking water or other
purposes. To protect drinking water sources, the release of DNAPL compounds must be
prevented. . ,
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the . . ,
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
661 ,
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Drinking Water Act. ' , ' .,
t
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments, the findings of this study, begun by the Agency in April, 1996, may,
result in proposed regulations for these units, if risks are in fact found that1 would warrant such
regulation. ,
662
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DCN PH4P085 - * .
CQMMENTEREDF
RESPONDERMC
SUBJECT EQUV
SUBJNUM 085 ' , -
COMMENT
Several proposed generic changes to the LDR program lack merit, particularly eliminating the
submission and review of generator sampling plans. Without such submissions, EPA and state
agencies are largely dependent upon generator inspections to review such plans. Current and
future generator inspection frequencies of about once every.25 years or less cannot possibly
ensure generator sampling plans will produce valid LDR determinations.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, cprrosivity,
reactivity, ortoxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996* EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do riot
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act .
''"_." . 1 ..
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
Determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
663
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.DCN PH4P089 .
COMMENTER ASTSWMO ,
RESPONDER' SS
SUBJECT EQUV
SUBJNUM 089 ' *'-. \
COMMENT
I. On the discussion concerning the different levels of .
^treatment of primary versus secondary and tertiary, the usage of
the tenn "treatment" is not as appropriate as the ,' . ;
term"destruction." A case could be made that more.treatment
occurs in the primary ponds, as these concentrate more solids than
the secondary and primary impoundments. Instead of comparing
treatment, destruction of organic would be the distinguishing
factor between primary, secondary and tertiary systems.
RESPONSE:
The Agency appreciates the commenter's offered analogy of the distinguishing differences across
primary, secondary and tertiary systems. However, the Agency did not present its analogy of the
differences between these three types of surface impoundments to spark debate regarding the ,
exact types of treatment being conducted in each unit 'The Agency was merely providing an
overview of some potential differentiations among types of surface impoundments to help in
distinguishing which impoundments most resemble permanent disposal. Using the commenter's
.suggested analogy, rather than that offered by the Agency, the same conclusions could be drawn.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 436SS). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, of toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 1S660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)); Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act ,
i
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments,. The findings of this study, begun by the Agency in April, 1996, may
.v ' ' , 664 -, ' ' ' . '
-------
. result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .: . :
665
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DCN . PH4P089 . :
COMMENTER ASTSWMO' ' .-''.".' ' .:
RESPONDER ,SS , .
SUBJECT EQUV l ,'"...
SUBJNUM 089 . ' < - ' ; .
COMMENT
. . ;8. The regulatory status of the decharacterized waste should be
clarified. Many State agencies'ability to regulate a waste is -'
basedonJlCRAclassification. For example, if decharacterized waste
was considered a Subtitle C RCRA waste, existing State law .
would not allow such waste to be disposed in Clean Water Act (CWA)
surface impoundment systems.
i ' , »'""
RESPONSE: -. ' '" ", '
The manner in which "decharacterized wastes" are regulated under any particular state regulatory
program depends, in authorized states, upon how the state program defines the regulatory status
of such wastes. In unauthorized states, such wastes must be managed in accordance to federal
regulations. " . '
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655); Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR I
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . . . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to .
. determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. '
.666
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DCN - . PH4P089
COMMENTER ASTSWMO
RESPONDER SS . . . , ' ' . .-..'.
SUBJECT EQUV -.-'
SUBJNUM 089 ' ' . . -, ' " ' ' /
COMMENT .
4. The fact that the air emission standards would require a membrane or a cover with
ventilation to a control device is not practical. For example, in April 1991 in California,
the San Joaquin Air Pollution Control District required similar controls for ponds from
crude oil production. The regulated industry has not installed such controls, but has
converted the storage of crude oil from ponds to tanks. Given that the economics of crude
oil has a higher payback than wastewater treatment, one would not expect wastewater
plants to retrofit their ponds to include covers or membranes to allow acceptance of higher
VOC waste. . , . . ' , ' "" '
5. On page 43666, reference to Method 27 seems to be incorrect. Should it be Method 21?
RESPONSE. / . . -
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
"' underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic.of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).,
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60.FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
1 regulation. ' ' ,
667
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DCN PH4P091 -, . -._....
COMMENTER FMC . , ' " - '
RESPONDER SS\ ''.- '
SUBJECT EQUV ...
SUBJNUM 091 .
COMMENT b. The Phase III and Phase IV rules should have a common
effective date. FMC believes that significant disruption could
arise if EPA establishes different effective dates for the Phase
HI and Phase IV rules. At the outset, it must be noted that the
two rules are ostensibly part of the same effort, to determine
what regulations to impose on decharacterized wastes placed in
CWA surface impoundments. Having the two rules as separate
proposals with separate but overlapping comment periods is
already creating difficulties for industry. More importantly,
however, serious problems could result if the Phase III rule is
. promulgated and made effective before the Phase IV rule is
promulgated. On the effective date of the Phase III rule,
companies will be forced to decide whether to continue to place
decharacterized wastes in CWA surface impoundments, or to switch
to other forms of management (such as tank-based systems). In
many cases, because the new requirement to meet UTS at the point
of discharge for constituents is not addressed in the NPDES
permit, significant capital expenditures may be required in
order to continue operating the surface impoundments. Additional
treatment steps may have to be added, either in the impoundments
v or before them. In other cases, NPDES permits may be amended to .
add additional constituents, often requiring additional
treatment steps as well. However, companies taking these
expensive steps may discover later that the regulatory option
, ultimately chosen under Phase IV for cross-media contamination
makes such treatment or permit limits impracticable or too
costly. Furthermore, the particular combination of Phase IV "
requirements EPA chooses (if any) could determine the most .
cost-effective way to modify a CWA system to meet the new UTS
requirements at the point of compliance. 121 EPA is considering
three different options for Phase IV. Companies cannot
adequately plan for compliance with Phase III without a decision
by the Agency on which option (if any) will be chosen under
Phase IV. In short, staggered effective dates for Phases III and
IV would result in a tremendous waste of resources for
companies, as well as significant confusion and difficulty in
compliance. 721 If EPA chooses Option 3, essentially all of
the affected surface impoundments will have to be replaced with
668
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tank-based systems, because UTS will have-to be met before
wastes can be placed in the impoundments. If EPA makes that
choice, any changes made within surface impoundments to allow
UTS to, be met at the CWA point of compliance would be wasted.
If, on the other hand, the Phase III and Phase IV requirements
are made effective simultaneously, companies will be able to
make an informed decision about whether to retain CWA surface
impoundments, and whether, and how to modify them to comply with
the new requirements, c. EPA has Authority under RCRA to Delay
the Effective Dates of the Phase III and Phase IV Rules. Subject
to court-approved schedules for developing the LDR and HWIR
rules (which can, of course, be changed with leave of court)
722, EPA has ample authority to establish a common effective ., .
date for the -Phase III and IV rules, and to delay that effective '
date until after promulgation of the final HWIR rule. First, the
Phase III and IV rules are not new treatment standards or
prohibitions subject to the immediate effective date under RCRA
section. 3004(h). 723 Section 3004 (h) provides that prohibitions -
from land disposal shall become effective immediately upon
promulgation, and section 3004(m)(2) provides that treatment .
standards are to become effective "on the same date" as the
corresponding prohibition. In the case of the wastes addressed
in Phase III and IV, EPA has already promulgated the .
prohibition, in the Third Third rule. /24 Furthermore, EPA has
already promulgated currently applicable treatment standards
applicable to these wastes. 125 EPA has stated clearly that
treatment standards are currently in place for these wastes, and
that the Phase III and IV rules will merely amend these .
standards./26 722 In most cases, court-established schedules
merely set the date for a final rule to be promulgated, leaving
the effective date up to the Agency's discretion. 723 As
explained in more detail below, the requirements contained in
Option 2 of Phase IV would not be treatment standards at all.
724 40 C.F.R. §268.33 725 40 C.F.R. §§268.41-43 726 58 Fed
Reg. 29863, 5724793 Accordingly, it is not possible for the
Phase III and IV regulations to become.effective on the same date
as the prohibitions to which they will correspond, because those
prohibitions occurred in the past. The statute does not say that N
amendments to treatment standards must be effective immediately,
and there is no reason that they should be. 121 In fact, as
noted above, EPA should ensure that the regulations do not
become effective until after the HWIR rule is finalized. 728 727
Clearly, the statute required prohibitions to be effective
669
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immediately because Gongress set stringent deadlines for
promulgating prohibitions. RCRA sections 3 004(d)-(g). Treatment
standards were to be set on the same date so there would be no
gap between prohibitions and the corresponding treatment
.standards. Here there will be no gap if the amended treatment
standards are not effective immediately, because there are
already prohibitions and treatment standards in place. 728
Nothing in RCRA Section 3006(g)(l) changes this conclusion. That
section provides, in pertinent part: Any requirement or
prohibition which is applicable to the generation,
transportatipn, treatment, storage, or disposal of hazardous
waste and which is imposed under this subchapter pursuant to the
amendments made by the Hazardous and Solid Waste Amendments of
1984 shall take effect in each State having an interim or
finally authorized State program on the same date as such
requirement takes effect in other States. Accordingly, while
amendments to LDR treatment standards might arguably have to be
effective in authorized states at the same time as in
non-authorized states, there is nothing in this provision that
states such amendments must be immediately effective in any
states. Furthermore, the Phase IV rules, if Option 2 is chosen, '
would not be subject to the LDR timing requirements in section
3004 at all, because they would not be LDR rules /29 RCRA
sections 3004(h) and (m) refer to "prohibitions" and "treatment
standards." The requirements that are contemplated in Option 2
of the Phase IV proposed rule are neither "one. The proposed
requirements, addressing air emissions, sludges, and leaks from
CWA wastewater surface impoundments, would be neither
prohibitions from land disposal under Sections 3004(d) through
(g), nor treatment standards pursuant to Section 3004(m). If
there is any authority in RCRA for such requirements, /30 it
does not come from the LDR provisions. The technical surface
"impoundment requirements in Option 2 of the Phase TV proposal
are clearly not "prohibitions," because, as noted above, the
hazardous wastes involved are already prohibited from land
disposal. The proposed Option 2 requirements cannot be
treatment standards, because they are not "levels" or "methods"
of treatment as set out in section 3004(m) of RCRA. The Option
2 requirements would not be prohibitions or treatment standards,
and thus are not subject to the LDR timing requirements in
section 3004. /31/29 Option 1, to rely on Phase 111 alone,
would essentially mean that there would be no Phase IV
requirements. Option III, to require UTS standards to be met
670
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before placement in a surface impoundment, would supersecte Phase
III. /30 As discussed elsewhere in these comments in connection
with the MSWLF standards, there in fact is no such authority
anywhere in-Subtitle C of RCRA. The Phase IV Supplemental LDR
rule will be a hew prohibition and treatment standard, and as '
such is required to be effective within six months of mineral
processing wastes being listed or identified. Because the
relevant six month period has already expired, the Agency
clearly cannot comply with this requirement.. As a result, the
Agency should promulgate the rule at a time that makes sense
from a policy perspective. In this case, that means that the
Agency should issue the Phase IV supplemental date with an
effective date after that of the HWIR rule. /31 If EPA believes
that authority exists for the Option 2 requirements in some part '
of RCRA other than the LDR provisions, one remaining issue would
be whether RCRA §3010(b) would require the regulations to be
effective within six months of final promulgation of the rule.
EPA has determined that it has the discretion to stay the
effective date of RCRA rules where necessary (as with the .
Subpart CC rule, see 60 Fed. Reg. 50426 (Sept. 29, 1995). If . ^
such a stay is not an option, however, EPA should delay final
promulgation of the Phase IV rule until after the HWIR rule is,
promulgated. As noted above, EPA has sufficient authority and
discretion to promulgate all four of the rules described above
in an order that prevents waste and confusion. However, it
should be added that EPA also has authority to grant National
.Capacity Variances under §3004(h)(2) for the Phase III, IV and
IV Supplemental LDR rules so that the ultimate effective dates
will fall after to the effective date of the HWIR. d. If EPA
Fails to Promulgate the Rules Discussed Above in a Proper Order, .
Real Harm Will Result for Many Companies, Including FMC. If EPA
promulgates the four rules discussed above in an unreasonable
order (as described above), the confusion and unnecessary costs
described above will be substantial, and will affect many
companies, including FMC. The example of a single FMC facility
illustrates the point. At its facility in Institute, West
Virginia, FMC generates waste that has been newly listed as Kl 57
in EPA's February 6,1995 rule addressing carbamates. /32 The
effective date for the listing was August 9,1995. Currently,
that waste is piped to a NPDES treatment system owned by ,
Rhone-Poulenc. Rhone-Poulenc's system includes a surface
impoundment utilizing aggressive biological treatment. FMC's .
contract with Rhone-Ppulenc states that if new regulations cause
671
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changes in the regulatory status of the wastes, Rhone-Poulenc
can refuse to accept the wastes: FMC does not have sufficient
space at its leased facility to construct its own wastewater
treatment system, and'the only alternative to Rhone-Pouienc's
system would be shipment offsite by rail or truck. The Phase III'
proposed rule includes a land disposal prohibition and treatment
standards for this carbamate waste, and the current proposal is
for these requirements to go.into effect 90 days after the .
publication of the final Phase.Ill rule, while two-year national
capacity variances are granted for other wastes. 732 60 Fed..
Reg. 7824,2/9/95 This.situation creates a substantial dilemma
for FMC. Rhone-Poulenc's wastewater treatment system does not '
currently satisfy the treatment standard for K.157, and it would
be extremely expensive to alter the system to meet that ;
standard. From a purely technical standpoint, it is probably - .
impossible to design, purchase the equipment needed, install and
start up a tank based biological treatment system before the end
of 1996. As suggested above, the only other alternative for FMC
would be to ship the waste offsite for treatment elsewhere. FMC
generates 2,350,000 gallons per year of wastewater that would -
have to be shipped offsite. This amounts to 130 railroad tank
.cars or 295 tank trucks. The disposal cost for this material
would be $242,000 per year and the transportation cost would be
$658,000 for a total of $940,000 per year. To impose this
tremendous expense for an interim period is clearly
unreasonable. This is particularly the case where FMC believes
that the upcoming HWIR rule is likely to remove this waste from
coverage by Subtitle C of RCRA. It would be unfair and wasteful
to require either extensive retrofitting or offsite shipment of
a .waste that is likely to become exempt from Subtitle C
requirements within a short time. /33 Proposed 40 C.F.R.
§268.39(a); 60 Fed. Reg. 11,742 While FMC believes that the
problem at the Institute facility could be addressed with a
national capacity variance, a better solution would ,be to defer .
the Phase III rule until after the HWIR rule. IV. EPA Should
clarify That the Phase IV Regulations Apply Only to Subtitle D
Surface Impoundments Receiving Decharacterized Wastewater. Both
Subtitle C and D wastewater surface impoundments may receive .
decharacterized wastewaters. However, only Subtitle D surface
impoundments should be impacted by the Phase IV regulations.
This is consistent with the Court of Appeals in Chemical Waste
Management v. EPA, 976 F. 2d 2 (D.'C. Cir. 1992), cert, denied
113 S. Ct. 1961 (1993) decision which Was directed towards
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. Subtitle D surface impoundments and not to Subtitle C surface > '
/ , impoundments. As the court stated, "Thus we agree with the EPA
that, under RCRA, diluted formerly characteristic wastes may be . .
placed in Subtitle D surface impoundments which are part of an
integrated CWA treatment train." 734 This applicability . '
difference between Subtitle C and D wastewater surface
impoundments is further acknowledged by EPA in Section I.C. of '
.. the preamble: /34 976 F 2d at 22 "Today's options to address ,
surface impoundment releases specifically apply to Subtitle D
(non-hazardous) surface impoundments that receive " ,
decharacterized wastes." 735 - '
RESPONSE: .
EPA promulgated the Phase III final rule on April 8,1996. Prior to finalizing that rulemaking,
EPA considered and responded to all public comments received in response to the proposed
Phase III nilemaking. Whenever relevant, and as time and resources allowed, the In the August
22,1995 Phase IV proposal, EPA discussed three options for ensuring that underlying hazardous
constituents in decharacterized wastes were not released to the environment via leaks, sludges,
and air emissions from surface impoundments in systems regulated by the Clean Water Act or
Safe Drinking Water Act (60 FR 43655). Decharacterized wastes are wastes which intially.
exhibited a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity when
generated but are no longer characteristic). On March 16,1996, the President signed the Land
Disposal Program Flexibility Act of 1996, which provides that the wastes in question are no
longer prohibited from land disposal once rendered nonhazardous. As a result, on April 8, 1996,
EPA withdrew its treatment standards for these wastes (61 FR 15660). Today's Phase IV final
rule will not promulgate provisions for managing leaks, sludges, and air emissions from surface
impoundments (EPA proposed options on August 22,1995 (60 FR 43655-43677)). Furthermore,
the treatment standards for TC metal wastes in today's rule do not apply to TC metal wastes if
the characteristic is removed and the wastes are subsequently treated in a unit that is regulated by
the Clean Water Act or, for underground injection wells, the Safe Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in. April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation:. - ' ' .
Agency considered additional comments and data submitted by the public in response to the
Phase IV rulemaking, prior to finalizing the Phase III standards. Given this, the Agency saw no
need to delay the effective date of the Phase III rulemaking so that it corresponds with the
effective date for the Phase IV rule: -
' \i . '
Although the Agency cannot predict exactly how the constituent-specific exit levels for certain
low-risk solid wastes in the HWJR final rule will compare with the UTS levels, the Agency did
i '"'-" , ' "'.*.' ' *'
.':. ' V . ' .' 673 ' ~ ; " - ' '
-------
consider available risk information when making decisions regarding final treatment standards in
the technology-based LDR program. During the development of final treatment standards, the
Agency examined whether the UTS for some metals may be far more stringent than any '
reasonable minimize threat level. The initial reasoning was that if the Agency found evidence
that the final HWIR minimize threat level was likely to be much higher than the proposed UTS
for any toxic characteristic wastestream, EPA would consider whether to raise the proposed
treatment standard prior to finalizing the Phase IV. rule. EPA examined the proposed;HWIR exit
levels for the toxic metal wastes including in the Phase IV rulemaking. When EPA compared the
proposed HWIR exit levels to the UTS for each metal constituent, the Agency found that the
BDAT level was,,in most cases, within an order of magnitude of the proposed HWIR exit level.
There were significant differences between the proposed HWIR exit level and UTS for two
metals, and . As discussed in section of the preamble to the Phase IV'final
rule,.....[need to complete once preamble language is written] , , ;
In light of the differences in timing between the HWIR and the Phase IV final rule, there is too
much uncertainty about what the final HWIR levels will be to incorporate those levels into the
UTS for any constituents. Section 3004(m) of RCRA requires that,the Agency promulgate
treatment standards that specify levels or methods of treatment that "substantially diminish the
toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents
from the waste so that short-term and long-term threats to human health and the environment are
minimized." The proposed HWIR levels have not
yet been established as "minimize threat" levels. Therefore, EPA is promulgating the Phase IV
rule and the HWIR rule independently. EPA will address any differences between the UTS and
the HWIR exit levels either in the final HWIR rule or once both rules are promulgated*
674
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DCN PH4P091 :
COMMENTED FMC , ;
.RESPONDENTS . . - ' v .
SUBJECT EQUV
SUBJNUM 091"
COMMENT a. The Regulatory "Trigger" for Groundwater Monitoring Using
the UTS level Should be a Multiple Greater Than 1. The current
proposal specifies that groundwater monitoring for a
decharacterized surface impoundment will be required if the*
.. regulated constituent in the impoundment is greater than: (1) 10
times the Maximum Concentration Limit (MCL), or if no MCL
exists, then (2) 10times the State/Tribal groundwater .
protection number, or if none exists, then (3) The Universal
. Treatment Standard (UTS)./52 By using the UTS without a ,
Dilution Attenuation Factor (DAF) multiplier on the surface ,
impoundment, the Agency has failed to equalize the
concentrations between the various values. As the Agency is .
aware, the UTS levels are likely to be significantly revised
upon the promulgation of the HWIR proposal. This rulemaking is
not final (and not even formally proposed) at this time. FMC
believes it inappropriate for the Agency to base a proposal '
requiring the installation of a monitoring system upon values - .
that have not been subject to notice and comment; there is no
certainty for the regulated community in what the "trigger
value" will be. This represents an unknown target for purposes
of either commenting or compliance. It is impossible for the
regulated community to either comment on this portion of the
proposal because no values have been proposed, nor can the
regulated community adequately plan the future compliance. If
the UTS based upon HWIR is to be the trigger levels, FMC
requests that EPA delay the final date (i.e., effective date of
Phase IV) until after HWIR is final and proper notice and
comment is made available; see comments in Section III./52 60
Fed. Reg. 43669 Even if HWIR is published on schedule in
. December 1996, without changes to the values in the unpublished
proposal, there is a six-month gap between when the existing
values take effect and the new values are promulgated. It is
uncertain what UTS values will be used by the regulated ' '
community as the basis for these values during the interim period.
FMC believes that to alleviate this problem, EPA should either
postpone this section of the regulation (until the HWIR values '
are final, the UTS is adjusted and adequate notice and comment
is allowed on the Phase IV proposal) or similar to the MCL and
675
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State/Tribal values include a multiplier (of at least 10) to the
current UTS. b. The Regulatory "Trigger" for Groundwater - '
Monitoring Should be Adjusted on a Site-Specific Basis The1
proposal for the regulatory triggers is based on a fixed Agency
dilution factor "taking into account the reasonable dilution and
attenuation that would occur." /53 Using the'"one size fits all" ,
approach defeats the general approach that EPA proposed taking . .
in that the regulation should be self-implementing based on site
specific conditions. FMC believes that the proposal should be.''-,.
-modified to allow, on a site-by-site basis, that the affected .
location to be able to adjust the DAF, based on sound technical
justification. This modification would be self-implementing with
the Regional Administrator or Authorized State having the .
ability, after notification from the affected location, to .
readjust the DAF. This would be with no penalty for use of a
higher DAF prior to Agency reconsideration, c. Statistically
Significant Releases Should Not Require the Owner to Move
. Directly,to Corrective Action. FMC believes that any corrective
action measures should be based upon risk to human health and
the environment and not result from a statistically significant .
increase .over a fixed value. Even the evaluation of various
remedial alternatives should not be done until a demonstrated
threat to human health and the environment exists. The
expenditure of time and effort by the regulated community to
implement potentially unneeded corrective action measures is
unwarranted. 153 60 Fed. Reg. 43669 The trigger for moving from
detection monitoring should be based upon risk either through a
site specific risk evaluation or through generalized values ' _ -
developed by EPA such as Preliminary Remediation Goals (PRGs)
whichever the regulated facility chooses to use. PRO's have been
, developed by Region IX, San Francisco, CA, which can be made ;
available to the regulated community.
RESPONSE: , !
The commenter's reference to the Phase IV ground-water monitoring requirements refers to
requirements included in Option 2 of the Agency's original Phase IV proposed rule (60 FR -
43654) addressing equivalency of treatment in wastewater treatment systems regulated under the
Clean Water Act In the August 22,1995 Phase IV proposal, EPA discussed three options for
ensuring that underlying hazardous constituents in decharacterized wastes were not released to
the environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
.wastes are wastes which intially exhibited a hazardous characteristic of ignitability, corrosiyity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
1 ' . \ .', '' . ' ?
. ",' 676 ..' . "
-------
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for,TC metal wastes in today's rule do not,
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated'
in a unit that is regulated by theiClean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . . - .. ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5ryear study to
, determine.any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may v
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' , ' .
677
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DCN PH4P091
COMMENTER FMC
RESPONDER MC
SUBJECT EQUV
SUBJNUM 091 . ' ,
COMMENT EPA should specifically state in the final regulations that the
Phase IV regulations for decharacterized wastewaters only apply
to Subtitle D.surface impoundments. V. FMC Supports Option 1 and
is Opposed to Option 3. FMC believes that EPA should select .,
Option 1 in the Phase IV rule. FMC believes that any further
regulation of decharacterized land based waste units is better
regulated under other Agency programs. As the Agency has stated
in the Phase IV prearnble36, the Chem Waste decision specified
that "...[the] court's opinion does not explicitly require
more..." than meeting the UTS or CWA treatment standards at
end-of-pipe. Discussion of the various options has satisfied any
other additional requirements of the opinion and if the Agency
. believes it is necessary to further regulate these units under
Subtitle C of RCRA, this can be construed as nothing more than
regulation for regulation's sake. Additional regulations, if'
any, for decharacterized waste surface impoundments, to control
releases from these units, would be better promulgated under the
CWA! Clean Air Act (CAA), or RCRA; Subtitle D (for industrial
, units) rather than by LDR program. /35 60 Fed. Reg. 43657 /36
60 Fed. Reg. 45, 659, 8/22/95 FMC agrees with EPA that it is
"unwise" to require decharacterized waste to meet the UTS before ,
entering the surface impoundment as would be required under
Option 3, This was clearly the court's intent in the Chem Waste
decision. 131 Requiring industry to further treat
decharacterized wastes (they have already been subject to some.
treatment to remove their hazardous waste characteristic) would
' add an unnecessary and undemonstrated burden on industry. In
these times of global competitiveness, additional burdensome and
unwarranted regulations cannot be justified./37 976F.2dat23
(Noting that RCRA § 1006 requires accommodation with the CWA)
VI. The Phase IV Rule Should Not Apply The Municipal Solid Waste
.Landfill Standards (MSWLF) To Clean Water Act Surface
Impoundments. (Option 2) As part of Option 2, EPA has proposed
'_* to apply certain MSWLF standards under 40 CFR Part 258 to CWA
surface impoundments receiving decharacterized.wastes. However,
RCRA does not authorize the Agency to promulgate such standards,
1 and even if EPA had such authority, it should refrain from
promulgating such standards as a matter of policy, a. EPA Lacks
. , 678 '
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Authority Under RCRA To Apply Municipal Solid Waste Landfill
Standards To Clean Water Act Surface Impoundments. Under RCRA
section 3004(m)(l), EPA is authorized to issue.treatment levels
or methods of treatment for prohibited wastes. The Municipal
Solid Waste Landfill Standards are neither levels nor methods of
treatment, and thus are not authorized under section 3004(m).
Furthermore, because they would apply to units that are
receiving no hazardous wastes, they are not authorized elsewhere
in Subtitle C of RCRA: As explained elsewhere in these comments
in connection with the Option 2 requirements in general, EPA's
proposed use of selected Part 258 MSWLF standards is neither a
treatment level nor a method of treatment. The MSWLF standards
proposed for use in the Phase IV LDR rule concern groundwater
monitoring and corrective action at Subtitle D surface
impoundments. They do not set an acceptable level of
constituents or provide a method of reducing constituent . .
concentrations to acceptable levels. Indeed, the standards have
nothing to, do with the treatment methods employed in the surface
impoundment. Accordingly, these requirements cannot be imposed
as part of the LDR program. Furthermore, if the MSWLF standards
cannot be imposed as LDRs, EPA lacks authority elsewhere in
Subtitle C to impose the requirements, because they regulate .
Subtitle D units that do not receive any hazardous wastes. The
Chem Waste decision /38 allowed EPA to impose certain continuing
requirements on wastes that were no longer hazardous wastes
(i.e., imposing Best Demonstrated Available Technology (BDAT)
levels below the characteristic level) but only because of the
.special nature of the LDR program. Apart from the LDR program,
EPA is limited to the regulation of hazardous wastes under
Subtitle C. In American Mining Congress y EPA /39, the court
rebuffed EPA's attempt to expand its Subtitle C jurisdiction by
broadening its regulatory definition of "solid waste." The court
stated: "RCRA includes two major parts: one deals with
nonhazardous solid waste management and the other with hazardous
waste management. Under the latter, EPA is directed to
promulgate regulations establishing a comprehensive management
system. [42 U.S.C. § 6921] EPA's authority; however, extends
only ,to the regulation of "hazardous waste." /40 /38 976 F.2d
at 12-19/39 American Mining Congress v. EPA, 824 F.2d 1177 . "!
(D.C. Cir. 1987) /40 824 F.2d at 1179, See also American Mining
Congress v. United States Environmental Protection Agency, 907
F.2d 1179, 1185 (D.C. Cir.. 1990). The court went on to say that.
"[t]he very care evidenced by Congress in defining RCRA's scope
'"'..': . 679 .
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certainly suggests that Congress was concerned-about delineating
and thus cabining EPA's jurisdictional reach." /41 The surface
impoundments,being considered in the Phase IV rule are Subtitle
D units that are part of CWA or CWA-equivalent systems. They do
not accept hazardous wastes. EPA thus has no authority to
regulate them under Subtitle C of RCRA. 142 /41 824 F.2d at
1189 742 Furthermore, even if EPA could find general authority
elsewhere hi RCRA to impose the-Option 2 requirements on
Subtitle D units, it still could not lawfully do so because
those requirements are not "necessary to protect human health
and the environment." RCRA §§3002(a), 3004 (a). EPA has made it
quite clear that it does not consider the Phase IV rules to be
necessary indeed, it does not even consider the Phase m
rules to be necessary. Although the D.C. Circuit rejected EPA's
legal construction hi the Third Third rule, the court did not
disturb EPA's finding that further regulation of decharacterized
wastes placed hi CWA systems was unnecessary as a matter of
policy and environmental protection. Accordingly, because the
MSWLF standards cannot be applied to CWA surface impoundments as
LDR requirements, and because there is no authority for the
requirements elsewhere in Subtitle C, EPA is precluded from
imposing these requirements as part of the Phase IV regulations.
b. Application Of The MSWLF Standards In Phase IV Is
Inappropriate And Unnecessary Even if EPA believes that it has
statutory authority to impose the MSWLF standards as part of
Phase IV, it should decide not to do so, because imposition of
the standards is inappropriate and unnecessary. First of all,
use of modified federal MSWLF standards for CWA surface
impoundments will add unnecessary complexity to the regulation
of solid and hazardous wastes. It will mean that there will be
one set of technical standards for Subtitle C units, a second
set of federal standards for CWA surface impoundments accepting
decharacterized wastes, and a third set of standards imposed by
states under Subtitle D programs^ This added level of regulation
. is particularly unnecessary when many states already have
Subtitle D regulations hi place that govern the same surface
impoundments. For Subtitle D units, the double set of regulatory
standards (LDR for decharacterized wastes and state programs)
will add a level of complexity as to which regulation is
applicable that will cause confusion both to the regulated .
community and the various federal and state agencies. Second,
the MSWLF standards will create additional confusion and
complexity because they are too dissimilar from other elements
680
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'of the LDR program. The MSWLF standards are not focused on
treatment of particular wastes but are technical standards for
landfill units. They raise entirely different compliance and
enforcement issues. In addition, design, and operational
requirements for landfills and surface impoundments is quite
dissimilar, further adding to the confusion. Third, imposition
of the MSWLF standards is unnecessary because there are already
substantial regulations and other legal requirements in place to
address leaks from CWA surface impoundments. In addition to the
state Subtitle D regulations referred to above * there are
already RCRA regulations in place that address potential leakage
at CWA impoundments. At RCRA-permitted or interim status TSDFs,
the RCRA corrective action requirements apply to all SWMUs,
including CWA surface impoundments. 743 Furthermore, the statute
allows EPA to take action when management of any solid or
hazardous waste "may present an imminent and substantial ' .
endangerment to health or the environment." 744 Clearly, this
provision could be invoked to prevent such endangerment
resulting from CWA impoundment leaks. In addition, all owners
arid operators of surface impoundments have powerful incentives
to. prevent leakage of hazardous constituents, because of the
risks of Comprehensive Environment Response Cleanup and
Liability Act (CERCLA) liability and the tremendous costs that
can result 745, as well as the risks of common law tort
liability resulting from leakage of toxic constituents. Finally,
as the Agency has conceded, the risks presented by
decharacterized wastes in CWA impoundments are low. In the
original Third Third rule, EPA determined that once a
characteristic waste no longer exhibits any hazardous
characteristic and it is either (i) treated in a wastewater
treatment system regulated under the CWA, or (ii) disposed of in
an underground injection well regulated under the Safe Drinking
Water Act (SDWA), then imposing additional treatment
requirements under RCRA is unnecessary as a matter of law and
unwarranted as a matter of environmental policy. 746 EPA
determined that the CWA regulatory program already imposes
adequate treatment requirements and dilution restrictions on
industrial wastewater treatment systems.747 EPA's reasonable
approach was rejected by the court in the Chem Waste decision.
743 For the scope of EPA's enforcement power with respect to ,
corrective action, see the recent consent decree in U.S. v. .
Eastman Kodak Co., No. 94-CV-6503T (W.D. N.Y.)744 RCRA §7003
745 42 U.S.C. §§9606, 9607/46 55 Fed. Reg. 22, 656-59, 6/1/90
J 681
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. /47 See, e.g., 55 Fed. Reg. 22,651-52,22,656-57 In the Phase
HI. proposed rule preamble, EPA pointed put that the Chem Waste
, decision was forcing EPA to address risks that did not justify
Agency action from a policy perspective: "First, the risks
addressed by this rule . . . are very small relative to the
risks presented by other environmental conditions or situations.
In a time of limited resources, common sense dictates that we
deal with higher risk activities first, a principle on which
EPA, and members of the regulated community, and the public can
agree. Nevertheless, the Agency is required to set treatment
standards for these relatively low risk wastes and disposal
practices during the next two years, although there are other
actions and projects with which the Agency could provide greater
protection of human health and the environment." /48 Similarly,
OSW Director Michael Shapiro testified before the House
Subcommittee on Commerce, Trade and Hazardous Materials on July
, 20, 1995, that the risks addressed by the Phase HI rule (and
thus those addressed by the then yet-to-be proposed Phase IV .
rule as well) ."are small relative to the risks presented by
other environmental conditions or situations." In a recent
letter from Robert Hickmott (Associate Administrator USEPA) to
U.S. Rep. Ron Syden, EPA confirmed that the risks are low, and
that there is little data showing risks. Given these small
risks, it is unreasonable to impose the significant costs on
industry that would result from application of the MSWLF
" standards on CWA surface impoundments, /48 60 Fed. Reg. 11704
c. EPA Should Not Impose MSWLF Requirements Without Also
Including The Variance Provisions In Part 258. If EPA decides,
despite the arguments outlined above, to impose the MSWLF
standards on CWA surface impoundments, FMC strongly urges the
Agency to apply the same variance provisions that are found in
Part 258. EPA has indicated that its preference is to make the
standards self-implementing, and requests comment on how to deal
with provisions that are not self implementing in Part 258,
such as the multi-unit provision. 749 FMC believes that all such
provisions allowing for variances and exceptions should be '
- included, and should be made self-implementing to the greatest
degree possible. Particularly considering the low risks that
would be addressed by any such standards, the regulated .. ,
community should be afforded the maximum possible flexibility in
applying the standards. Vn. If Option 2 is Selected, then the
MSWLF Standards Must be Further Modified to Better Reflect
Industrial Unit Operations and, Requirements If the EPA decides
682
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to pursue this option, revisions to the MSWLF standards /50 ' ,
; beyond those expressed in the Phase IV preamble 751 are needed!
However, it is extremely difficult, if not impossible, to
comment on the specifics of Option 2 without the proposed
regulatory language. /49 60 Fed. Reg. 43671750 40 C.F.R. §258
751 60 Fed. Reg. 43666-73 , .
RESPONSE .
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which intially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).1
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22, 1995 (60 FR ..
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by .the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . .
" . " ' t
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
.regulation. . '
683
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DCN PH4P091 . ,
COMMENTER FMC
RESPONDER MC
SUBJECT EQUV
SUBJNUM 091
COMMENT d. Corrective Action Should be Based Upon Risk and a "No
Action" Alternative Should.be Allowed. The EPA proposal, in the
Selection of Remedy section (adopted from 40 CFR 258)/54,
requires that the owner/operator select a remedy that meets
several protectiveness standard 155 and that the facility either
cease discharge of decharacterized wastewater to the impoundment
or install a double liner system. The protectiveness standards
are not based on risk nor do they include a "No Action"
alternative. FMC believes that it is particularly important that
. there be an opportunity for a decision of no remedial action,
pursuant to 40 C.F.R. §258.57(e), because in many cases such a
decision will be appropriate for a particular site and will
prevent wasteful expenditures on unnecessary remediation
activities./54 60 Fed. Reg. 43671-72 755 ibid Similar to
FMC's comment on statistically significant releases (see item c.
above), any corrective action selected should first be
protective of human health and the environment. This can only be
demonstrated through a risk analysis of the release and the
various protective measures being contemplated including No
Action. No Action is a plausible scenario, for example, where
the natural groundwater quality makes it unfit for human/animal
consumption, or the rate and direction of groundwater movement
is such as not to represent a threat, or where, due to natural
attenuation, the groundwater is not a threat at the property
line. This is especially true where the Agency has already
stated that the waste in question, prior to any treatment in the
impoundment, represents only a small threat to human health and
. the environment. FMC requests that EPA specify that any remedy
selection be based on a risk evaluation and that an alternative ;
to corrective action include the No Action alternate. Further
the No Action alternative, if selected, should include the
continued use of the surface impoundment without modification e.
EPA Should Grant a General Applicability Exemption for Subtitle
D Impoundments that Receive Stormwater; Numerous industrial
facilities utilize integrated sewer systems in which both
process wastewaters and stonnwaters are managed in the same
collection system. Surface impoundments are commonly used in
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integrated sewer systems to temporarily receive excess water
flow during storm events. These impoundments can include both'
stormwater and firewater. Firewater ponds are used to store
water for use in fire emergencies and are normally maintained at
relatively high levels. Water (or excess water from firewater
ponds) diverted to these units during storm events are either
transferred to the wastewater treatment system at controlled
rates or, if sufficiently clean, allowed to discharge to the
receiving body. FMC's Bayport, TX facility discharges its
combined process water and stormwater to Gulf Coast Treatment
facility (POTW). FMC collects all its stormwater (non-hazardous)
from its process area in the process sewer prior to discharge. '
this is combined with the plant's process water in a process .
water tank. One stream, a city water deionizer regeneration; .
stream, is characteristically hazardous due to corrosivity at
the point of generation (if the Point of Rejection from the ,;
process rathervthan the headwork to the wastewater treatment
system is used as the Point of Generation) but is neutralized
prior to. discharge. During heavy storm events. Gulf Coast
discontinues taking FMC's discharge. Since the storage
capability is minimal, and the amount of storm collected water
can be quite large, the current procedure is to overflow the
process water tank to the firewater system and pond. Any excess
water is then discharged after Gulf Coast begins receiving water
again. This is an infrequent occurrence but without an exemption
as proposed, FMC's firewater system would be subject to the ,
Phase IV requirements. The cost to separate out mis stream and
build-separate tankage is not warranted by the environmental
risk it represents. FMC believes that these impoundments should
be exempted due to their low environmental risk, their
importance to the operation of the facility's wastewater
management system, and for existing systems, the impracticality
of closing the impoundments. Stormwater and firewater
impoundments pose an inherently low environmental risk since:
Underlying Hazardous Constituents (UHCs) in the influents to
these impoundments have the potential to exceed UTS only for
very short periods of time. Such exceedances will only occur
during the very beginning and end of the storm events when the
proportion of process wastewater to stormwater is at the
greatest.^ The UTS levels will not be exceeded during the
majority of the, time when the flowfate of water to the .
stormwater impoundment is at the greatest. Thus, the flow-rated
average concentration'of UHCs in the influent will be .
- . ' . 685 '
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significantly below the UTS levels. Stormwater impoundments are
generally empty, so the residence time of the UHCs is short.
Thus, the already diluted UHCs will have only a relatively brief
time to cause any penetration into the underlying soil (low . . <"
potential for ground water contamination) and to generate any
emission to the atmosphere (low, intermittent exposures to down
wind receptors). Stormwater and firewater impoundments are
important units to the facility's wastewater management system
since temporary storage during storm events is necessary so that
the large amounts of water managed during a stone event will not
overwhelm the waste treatment system and interfere with the
efficiency of the treatment system. It is impractical to close
firewater or stonnwater impoundments since: It would be
prohibitively costly to close them because of their sheer size
(greater than 25 acres at some facilities). Closure would entail
one or more of the following: - Replace the impoundments with
a vast storage tank system to manage the large volume of
hre/storm/process water. One inch of rainfall over a ten .acre
facility is equivalent to 270,000 gallons of stonnwater. During
a major storm event, such as four inches of rainfall' this '
represents 1,000,000 gallons of Stormwater. - Significantly
enlarge the capacity of the wastewater transfer system
downstream of the point where stonnwater is currently diverted ,
to the impoundments AND significantly enlarge the treatment
system capacity to manage, peak flows that will only occur during
storm events. - Segregate the process wastewater from
Stormwater which, in many cases, would be prohibitively
. expensive due to the size and location (under operating units)
of sewer systems in well-established industrial complexes. Thus,
FMC believes EPA should grant a general applicability exemption
, for firewater and stonnwater impoundments that receive
decharacterized wastewaters. f. EPA Should Not Regulate
Non-Hazardous Sludges Removed From CWA Surface Impoundments In
. The Phase IV Rule. FMC believes that it is both unlawful and
unnecessary for EPA to impose additional regulations on sludges
as part of the Phase IV rule. First, it is unnecessary for EPA
to impose new regulations on sludges removed from CWA
, impoundments in order to ensure that treatment in such
impoundments is equivalent to RCRA treatment. When sludges are
removed from surface impoundments, they are newly generated
wastes at a new .point of generation, just as is the case with
sludges removed from Subtitle C units, including tanks. 156
EPA's own discussion in the preamble conclusively shows that ,
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sludges from CWA impoundments need not be further regulated to
. achieve equivalent treatment: "EPA also reiterates that, as a , . "
legal matter, it can be argued that, even no^treatment of sludges
is equivalent to subtitle C LDR controls. This is because :
, generation of sludges is usually a new point of generation at .
which the newly generated waste is reevaluated to determine if '.. .
it is subject to the LDR standards. If non-hazardous, the
sludges would not be so subject (i.e., would not be prohibited '
wastes). See 55 FR 22661-62."Thus, literal application of an
equivalence test would result in no treatment of these sludges,
since the sludges will be non-hazardous wastes by definition "
(they cannot be hazardous wastes because they are being
generated in subtitle D impoundments), and so would not require
Further treatment under the standard subtitle C approach."757 '
"In other words, the LDRs never attach to non-hazardous sludges, '
because they are newly generated wastes. 756 60 Fed. Reg. 43673
/57 ibid Second, as with the MSWLF standards discussed above,
regulation of nonhazardous sludges from CWA surface impoundments
would be neither a prohibition nor a treatment standard under
RCRA section 3004(m)(l), and. thus EPA lacks authority to
i regulate such sludges under the LDR program. Furthermore, .
because the sludges are not themselves hazardous and are being
removed from Subtitle D units that dp not accept hazardous
wastes, EPA is without authority to regulate them under any .
other portion of Subtitle C. Before sludges are removed from the
- surface impoundment, they do not pose risks different from those,
potentially posed by leaks, and are thus would be addressed by .
leak prevention measures. As EPA says, "EPA does not believe
in-place sludges would be a release pathway separate from the
leaks pathway." 758 Thus, EPA should not address sludges as a
separate issue in the Phase IV regulations, for both legal and ; '. - *
policy reasons. 758 60 Fed. Reg. 43673
RESPONSE . - ^ >
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were hot released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems -
regulated'by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which intially exhibited a hazardous characteristic of ignilability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660):
Today's Phase IV final rule, will not promulgate provisions for managing.leaks, sludges, and air
- ''. ' , . 687 ' ' ' '..'
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emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ,
\
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. -The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. - . ' .
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DCN . PH4P092 ' .-'.>
COMMENTER Union Carbide Corp.
RESPONDER PMC
SUBJECT ' EQUV ' . ,
.SUBJNUM 092 .'
COMMENT- ' ' , . /. ,
I.C. The phase IV wastewater landban rules should not apply to
subtitle C impoundments receiving decharacterized wastewater.
The preamble statement "Today's options to address surface
. impoundment releases specifically apply to Subtitle D
(nonhazardous) surface impoundments that receive
decharacterized wastewaters)" (page 436457), implies that the phase
IV rule would not apply to Subtitle C impoundments. EPA should
make this explicit in the final rule. In particular, the
following types of subtitle C surface impoundments need not ,be
subject to the phase IV wastewater landban standards because they
, . are already subject to subtitle C controls:
impoundments .operating under 265.113 (d) and (e), delayed closure
provisions
impoundments which have received a 3005(j)(3), aggressive
. . biological treatment variance ' - ''
I.G. Union Carbide Supports Option 1
Union Carbide agrees with EPA that this rulemaking will achieve
little risk reduction for the effort
involved. In particular, there would be no significant risk
reduction at Union Carbide facilities which treat decharacterized
wastewater in surface impoundments. A plant by plant
description and analysis is attached to these comments.
Union Carbide believes subtitle D surface impoundments should be
regulated through Federal guidelines implemented by the states.
EPA has embarked on a program to do just that. Union Carbide
supports EPA's approach for developing industrial subtitle D
guidelines and is participating in the program via the Chemical
Manufacturers. Association. .
I.G. Option 3 would impose significant, unnecessary costs on Union
Carbide
The cost of option 3 would probably exceed $ 100 million, more than
Union Carbide has spent on all other facility modifications driven
by RCRA subtitle C to date. See the plant by plant description,
. attached, for details.. v
I.H.2Union Carbide supports the proposed exclusion for subpart C
permitted facilities under option 2
A condition for granting an RCRA permit for treatment, storage or
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disposal is that the entire facility be subject to corrective ' '
action for releases from Solid Waste Management Units(3004(u)).
Thus, all wastewater treatment units, including surface
impoundments, must meet a standard of release prevention and
remediation that protects human health and the environment. EPA or
the delegated state agency already has the authority and ongoing.
programs,to regulate releases from these solid waste management
units. '.- ' -
I.H.2The subpart C permitted facility exclusion should include . :
facilities subject to Subpart C permit requirements. ; '
The exclusion should be worded along the following lines: "if an
impoundment is located at a facility subject to RCRA permitting, no
further control would be adopted under Phase IV" rather than the
preamble statement (page 43661], "if an impoundment is located at
a permitted TSDF, no further...." The reasons are as follows:
1. EPA has not yet issued final permits to all facilities subject
to RCRA permitting because of the large administrative burden *
involved. Eligibility for the exclusion should not depend on a
Region's or State agencies resource limitations or priorities.
2. EPA has directed its regions to issue corrective action permits
based on a "worst firsfpriority, a sound policy which Union
- Carbide supports. Thus, facilities which the Region believes pose
' the lowest risks will receive their permits last. It would be
illogical to subject these lowest risk facilities to the new phase
IV standards, while facilities judged to be higher risk are
excluded. - ^
3. Some facilities subject to RCRA permitting may not have
received permits because they are newly regulated from expansions
to the hazardous waste definition (e.g. the 1990expansion to the
Toxicity Characteristic). .
4. Some facilities subject to RCRA corrective action have closed
their subtitle C treatment, storage and disposal units. These
facilities are nevertheless subject to postclosure care ,.
requirements and to corrective action for releases from all Solid
Waste Management Units, even though they no longer are permitted
for treatment, storage or disposal of hazardous waste.
I.H.2Union Carbide supports the concept of exempting wastewater
treatment surface impoundments from.phase 4 emissions standards
where emissions are subject to alternative state, Federal or tribal
requirements. , . <
Air emissions should be regulated under air programs and not
subject to overlapping or duplicative RCRA requirements.
I.H.2EPA should clarify which future alternative Federal, state
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and tribal emissions control programs qualify for the option 2
exclusion.,
How near is "near future?" MACT standards will be promulgated over
the next several years on a schedule established under section 112
of the Clean Air Act Amendments of 1990. The listing and schedule'
were published on December 3, 1993 at 58FR page 63941. EPA should
explicitly state that, for purposes of exemption from the phase'IV
emissions standards, "CAA standards for hazardous air pollutants"
includes all sources listed at in the December 3, 1993, Federal
Register notice and wastewater from all sources listed in the .
December 3, 1993, Federal Register notice. This is particularly
^important to Union Carbide locations. Union Carbide currently
. generates characteristic wastewater in units subject to future1
Olefins MACT standards, which we understand EPA will list soon, and
may generate characteristic wastewater from groundwater remediation
activities subject to future MACT standards for corrective action,
scheduled for2000. In addition, Union Carbide treats .
decharacterized wastewater in offsite impoundments in a POTW
(scheduled for MACT standards in 1995). ...
H.2Option 2 emissions standards should not apply to wastewaters
subject to alternative state, Federal and tribal standards.v
EPA creates some confusion in the preamble by using the terms
"addressed iff CAA standard"(Figure 2) and "subject to CAA
standards" (page 43660). Alternative Federal, state or
tribal standards typically do not require controls on all
wastewaters form a source. Air regulations have complex
applicability criteria in order to focus control efforts on the
most significant emissions. - ' ,
For example, for Texas RACT standards apply controls to wastewater
using applicability criteria based on their, potential to emit,.
estimated by a formula based on Henry's law. It would make little
sense, and create much confusion and unnecessary expense, to
require additional controls for wastewaters with low potential to
N emit. In other words, the phase 4 rule exemption should not
be narrowly limited to wastewaters for which physical controls are-
required. . .
I.H.2UCC supports allowing alternative standards that control
either VOCs or Hazardous Air pollutants in lieu of phase 4 land
ban standards for emissions. ,
In particular, wastewater from sources subject to RACT standards
for volatile organics should be excluded from phase 4 land ban
standards for emissions.
I.H.2Surface impoundments at offsite TSD's should be excluded from ,
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phase 4 Emission Standards if the dischargers' ICRT waste-waters are
subject to alternative statej Federal or tribal standards. . -..-.,.
Union Carbide uses an industrial, nbnhazardous POTW to treat
wastewaters from one of its major facilities. This POTW does not,
at present, accept domestic sewage and is therefore not
presently eligible for the domestic sewage exclusion. Consequently,
the surface impoundments at this POTW would be subject to the phase
4 emission standards under option 2.
The current preamble implies that the POTW facility must itself be
subject to Clean Air Act Standards to be exempt from the Option 2 .
emissions standards. , ,
The phase 2 option should be revised so that facilities subject to
CAA standards for hazardous air pollutants in the near future or . .,
facilities that receive, treat, or store influent wastewaters. " '
.. from sources which are subject to Clean Air Act requirements (such
, as MACT standards promulgated under Section 112 of the CAA or state
RACT standards for volatile organic emissions) would not be covered
, by Option 2.
The state RACT standards and MACT standards for major sources ,
include specific provisions for control of emissions of hazardous
air pollutants from wastewaters generated by the source.
For example, the HON MACT imposes standards on wastewaters from
SOCMI units which ensures that the emissions of HAPS from such
wastewaters are appropriately regulated. Thus, it should not be
' necessary for the Phase IV rule to address air emissions from
POTWs which receive wastewaters subject to a MACT standard, since
the air emissions from such waters have already been assessed and
addressed under the CM.
! S ' '.,-'',
RESPONSE -
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking .Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nohhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, arid air
emissions from surface impoundments (EPA proposed options'on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
692
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in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . . . .
. However, the Land Disppsal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents^from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may ,
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ,
DCN PH4P092 '',-'
COMMENTER Union Carbide Corp. :. ' "
'RESPONDER ^SS ' . .
SUBJECT EQUV , , .
SUBJNUM 092 . '
COMMENT
. I.H.2 'EPA's flow diagrams, which combine applicability logic and
"' summaries of requirements, are excellent and should be included in
the final rule, if options 2 or 3 are selected. . . >
These flow charts are among the best descriptions of a complex . "
rule we have seen. We encourage EPA to include this type of .
diagram in all major rules with complex applicability criteria.
EPA needs to be careful that the flow charts are fully consistent
with the rule. For example, options to (1) pretreat wastewater to
95% VOC reduction/50 ppmw and (2) pretreat wastewater to site
specific exit concentration determined by an equation should be
included in the figure 2 flow chart for completeness.
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
. President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes'in today's rule dp not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells; the Safe
. 693 ...'.'
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Drinking Water Act. * . ,
.-'..' ' .>'
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . *
694
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DGN . PH4P092 , " .
COMMENTER Union Carbide Corp. - ~ -' . . ,
RESPONDER SS ' . ' ' - ' \ '
SUBJECT EQUV ' .. '.. ,.'
SUBJNUM 092. , .'<''
COMMENT . ' . .. "' - '. - - s
III. EPA should add additional flexibility to the LDR program by
adding an emergency response exemption worded along the lines of
the emergency response exemptions from permitting and other RCRA
V /.standards at 264. l(g)(8), 265. l(c)(ll) and 270. l(cj(3). . . .
Union Carbide manages reactive materials which also exhibit RCRA
characteristics. The safest way to manage large spills of these
materials is to dilute them with large quantities of water and send
to the location's wastewater treatment system. This practice is
far safer than retaining them in an undiluted form where they could
- react or ignite. The 264,265 and 270 exemptions make it permissible to manage
" large spills in the safest way, but 268 iliogically forbids it.
RESPONSE: . ,
The emergency response exemptions cited by the commenter apply to treatment and containment'
activities during immediate response to hazardous waste discharges. The exclusions do hot apply
to the ultimate disposal of hazardous wastes. All three exclusions provide that "any person who
continues or initiates hazardous waste treatment or containment activities after the immediate
response is over is subject to iall applicable requirements..." The intent of each of these
exclusions is to facilitate the quick implementation of immediate response activities to ensure
immediate containment and initial treatment. The ultimate treatment arid disposal of any
hazardous wastes, including contaminated media, that is generated during immediate response
activities must be conducted in full accordance with all applicable hazardous waste management
regulations to minimize any continual or potential threats to human health and the environment.
NOTE to EPA: how do we respond to the commenter's specific example of large spills of
reactive materials that exhibit one or more characteristics? Tell them to ask for a
treatability variance?,
695
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DCN . PH4P092
COMMENTER UNION CARBIDE .'''. ->..'
RESPONDER SS
SUBJECT EQUV
SUBJNUM 092
COMMENT ' ' ."'.--
I.G. ';'''.-.. '" . '
Option 2 needs further clarifications and modifications to avoid duplication or overlap with
other programs. ' .
Land ban regulations should not impose overlapping or duplicative requirements over other
statutes or regulations. .Several clarifications and modifications are needed in option 2 to fully
meet this goal. These concerns are elaborated in greater detail elsewhere in these comments.
Without these changes, significant disruptions and costs of $40 million or more to Union Carbide
are possible. . - '
I.H.2 ../'.- ' '". ~ ' ' ' '
The exemption for "facilities which meet the pollution prevention" compliance option
should be available to off-site facilities if the dischargers to the off-site facility meet the
appropriate requirements.
This will not penalize facilities in states that have designed their programs to encourage source
reduction approaches in their air programs.
i ,
'I.H.-2 - '-. .'''
Option 2 leakage standards appropriately recognize the substantial difference in risk .
between pre biological and biological/post-biological treatment impoundments. ' . '
Any seepage from biological or post biological impoundments has already undergone biological
treatment. Hazardous constituents have been substantially, if not completely degraded. In
addition, the seepage contains nutrients and, for aerobic impoundments, oxygen, which
stimulates biological activity within the natural soil liners. Congress recognized the substantially
.lower risks posed by these units by including the 30050(3), Aggressive Biological Treatment,
variance from minimum technology requirements.
RESPONSE \ ' . -
In the August 22,1995 Phase FV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). becharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or tbxicity when generated but are no longer characteristic). On March 16,1996, the .
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
696
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wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today'.s Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments. (EPA proposed options oh August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the,Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' , " . - .
However, the Land Disposal Flexibility. Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation/ - . .- - ' .
697
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DCN PH4P093 ...
COMMENTER Heritage Environmental ; ,
RESPONDER PMC
SUBJECT EQUV ' .
SUBJNUM 093 " , '..'-.''
COMMENT " . . ' ' ,
' The Applicability of the Characteristic Waste Treatment Standards
is not Clear Relative to Tank-Based CWA Systems
As a result of the Chemical Waste Management v. EPA court decision
.regarding decharacterization of hazardous waste by dilution, EPA
Has implemented the concept of Clean Water Act (CWA), or
CWA-equivalent, treatment versus non-CWA treatment. In the May
24,1993 interim final rule for ignitable and corrosive wastes (58
FR 29860), EPA addressed treatment of DOO1 and D002 wastes managed
in treatment systems other than centralized wastewater management
systems covered by 40 CFR 268. l(c)(3) (Class I underground
injection wells) and 268.3 (b) (CWA treatment systems). A CWA
treatment system is defined by 40 CFR268.3(b) as, "...a treatment
system which treats wastes subsequently discharged to a water of
the United States pursuant to a permit issued under section 402 of
the Clean Water Act (CWA) or which treats wastes for the purposes
of pretreatment requirements under section 307 of the CWA...." This
definition seemingly includes tank-based as well as land-based
(surface impoundments) treatment systems.
However, throughout the preamble discussion of the Phase IV
, treatment standards regarding meeting universal treatment standards
(UTS) for the underlying hazardous constituents of characteristic
wastes treated in CWA systems, EPA only discusses treatment in
surface impoundments. In fact, Sections I and II of the proposed
rule are limited to discussion of surface impoundments. Nowhere are
tank-based treatment systems discussed relative to this
proposed rule. Yet, the actual proposed language for 40 CFR 268.40
did not specify that these Treatment Standards would apply only to
CWA systems involving surface impoundments or Class I
injection wells (i.e., land-based treatment systems). Thus, it is
not clear which CWA systems would be subject to the requirement to
identify and treat underlying hazardous constituents in
characteristic , .
wastes. , . '
Although Heritage has already submitted comments regarding this
^ issue in response to the proposed LDR - Phase III rule, we would
like to reiterate that the treatment standards for underlying
hazardous constituents in characteristic hazardous wastes, should
698
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699
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*
be limited tdnon-CWA.treatment systems,'surface impoundments and
injection wells due to the potential risks to human health and the
environment inherent in these activities. There is no land
disposal involved with tank-based wastewater treatment, .-
. particularly in situations involving indirect discharges. CWA
systems that do not include surface impoundments do not present
the same level of potential risk of leaks, as such systems are
typically tank-based with associated secondary .
containment structures.
In addition, concerns regarding tank leakage, air emissions and
discharges to POTWs or surface waters are already addressed by a
myriad of existing regulations including: technical :
requirements for the design and operation of tanks under Subpart J .
of 40 CFR Parts 264 and 265; RCRA CORRECTIVE action requirements to
address releases from permitted facilities; release
reporting requirements under Comprehensive Emergency Response,
Compensation and Liability Act(CERCLA) and state and local spill >
reporting regulations; air emissions standards under federal Clean
Air Act regulations and similar state and local requirements, as
< well as the new organic air emission control standards under
Subpart CC of 40 CFR Parts 264 and 265; and permitting requirements
with stringent constituent limitations under provision of the
Clean Water Act and state and local regulations.
In fact, discharges from centralized waste treatment facilities
following treatment of hazardous wastes will be subject to the
applicable constituent limitations in each facility's discharge
permit. EPA is well aware that such limitations will become even
more stringent upon promulgation of the pretreatment standards for
centralized waste treatment facilities. The dewatered
(i.e.,nonwastewater) residues resulting from such CWA treatment
will be subject to the Treatment Standards applicable to the wastes
. treated in the system prior to land disposal; Thus, there seems to
1 be no rational argument for additional regulation of wastes .
treated in a CWA tank-based system; Heritage requests that EPA
specifically address how the requirement to identify and
. treat underlying hazardous constituents applies to tank-based CWA
treatment systems, as opposed to the land-based systems discussed ,
at great length in me proposed Phase III and Phase IV rules.
RESPONSE ^ .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
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underlying hazardous constituents in'decharacterized wastes were not released to the
environment via leaks, sludges, and air-emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes .are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiviry',.
reactivity, or toxicity when generated but are no longer characteristic). On March 16, -1996, the
President signed the Land Disposal Program.Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today?s Phase IV final rule will riot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TG metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ' . ! .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such"
regulation. . , . ' .
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DCN PH4P094 , -
COMMENTER General Motors Corp.
RESPONDER PMC - - .
SUBJECT EQUV
SUBJNUM 094 \ ' -
COMMENT
Integration with Other Statutes Sec. 1006(a) and (b)
Several of the options discussed in this preamble overlap with .
regulations and programs covered more appropriately under other
specific statutes. These RCRA .regulations are focused on hazardous
waste emissions or discharges taking place in media other then
solid waste, that is, water and air., JWhat appears to be happening
with the Phase III and Phase IV proposals is that the RCRA
regulation writers are unaware of the imbalances that are being
created with the CWA and the CAA. Conflict with this portion of
. the statute has arisen; because other sections of RCRA'have caused
. ' the Agency to develop duplicative regulations which are obvious in
some of the options discussed in this proposal. Two examples are
described below: >
Example 1 -
Section 3004(n) Air Emissions.-Not later than thirty months after
the date of enactment of the Hazardous and Solid Waste Amendments
of 1984, the Administrator shall promulgate such regulations for
the monitoring and control of air emissions at hazardous waste
treatment, storage, and disposal facilities, including but not '
limited to open tanks, surface impoundments, and landfills, as may
be necessary to protect human health and the environment. [§3004(n)
added by PL 98-616] : ' .
This section of RCRA has generated the Subpart CC regulations2
that are designed to control volatile organic emissions from TSD
and generator tanks, containers and surface impoundments. In fact,
the Agency acknowledges that "many industrial sectors that may
manage hazardous waste are listed as specific NESHAP source
categories. Consequently, facilities at which hazardous waste are
managed may be subject to both NESHAP and the RCRA air standards
..." The Agency failed to recognize other areas of the Clean Air
Act [New Source Review in Non-Attainment Areas at 40 CFR 51.165(a)
or Prevention of Significant Deterioration at 40 CFR51.166] also
regulate the emissions from hazardous waste units.
In fact, certain sections of RCRA seem to conflicting with itself.
Subpart CC regulations enabled under Sec. 3004(n) have been
developed to control organic emissions from tanks, containers
and surface impoundments. This Phase iv proposal suggests that the
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Subpart CC regulations be expanded to include "decharacterized"
wastes in an apparent'over expansion of 3 004(n).
Example 2 . , .'
: 3004(m) Treatment Standards for Wastes Subject to Land Disposal
Prohibition.(1) Simultaneously, with, the promulgation of
regulations under subsection (d), (e), (f), or (g)prohibiting one
or more methods of land disposal of a particular hazardous waste,
and as appropriate thereafter, the Administrator shall, after
notice and an opportunity for hearings and after consultation with
appropriate Federal and State agencies, promulgate regulations ;
specifying those levels or methods of treatment, if any, which
substantially diminish the toxicity of the waste
or substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term
threats to human health and the environment are minimized.
Although, the statutory conflict is less apparent then in the
previous example all the same a conflict which involves the Clean
Water Act does exist. LDR treatment levels are based upon Best
Demonstrated Available Treatment (BOAT) technology for both solid
and liquid forms of hazardous waste. Setting BDAT for liquids that
are treated prior to disposal is technologically feasible.
However, the LDR Phase III and portions of the Phase iv proposals
state that an impounded liquid hazardous waste must meet LDR
treatment levels prior to treatment; a technological impossibility.
The Phase iv proposal suggests that certain nonhazardous impounded
wastewaters (decharacterized wastes) also meet the LDR treatment
levels. This requirement may be acceptable for those wastewater
systems that use impoundments after treatment (final polishing);
but those systems that utilize impoundments in the early stages of
their treatment train (equalization, recirculation or settling
basins) this is a technical impossibility since any wastewater
treatment occurs after the basin itself. By definition BDAT
levels are based upon wastewaters that have been treated with the
Best Available Treatment technology.
Phase III Definition of De-minimis Volume and Malfunction
Exemptions (Discussed on 60 FR11714)
If the Agency decides that decharacterized wastes must meet LDRs
then exemptions should be written into the final rule which account
for small volume waste streams and operational anomalies that occur
beyond the; control of the facility operator (i.e., spills,
.equipment malfunctions). Additionally, the increased regulation
of waste generated by laboratories and low-volume-low-concentration
waste streams require significant allocation of resources
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and provides very little benefit to the environment. Exemption .
language could be drafted to include a maximum concentration of ,
each constituent as a function of its UTS and a maximum-flow
. rate(volume per-unit time).
Malfunctions of properly maintained equipment or processes'
resulting in specific, finite releases should be provided for in
* the final rule. Facilities should not be immediately subject to ' .
Phase III ,'"...._
or Phase IV if a malfunction of a single process causes a normally ,'
non-hazardous waste stream to exhibit hazardous characteristics.
Language should be added to exempt a facility from applicability
to Phase III and Phase IV requirements if it can be demonstrated
that the equipment was properly designed and operated with
appropriate maintenance procedures in place in the case of a
malfunction.
Inclusion of exemption language to cover these two general
categories would significantly reduce the burden of the regulation
on these de-minimis sources. Analytical requirements should
be minimized in the implementation of any exemptions for their
practical application. If the cost of analysis and record keeping <
approach that of the alternative; the efficacy of the exemption is
Definition of Decharacterzed , . *
The word decharacterizi .[though used a couple of times in two
previous Federal Register preamble discussions it has never been
codified. General Motors does not accept this term on its face as
defined by language in the preamble to this rulemaking for reasons ,
stated previously. General Motors recommends that the term
"decharacterized" be defined in a regulatory proposal and published
for proper public commenting and then codified into 40 CFR 260.10.
RESPONSE _
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore; the treatment standards for TC metal wastes in today's rule do not
',-. 704 ' "
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apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe ..
Drinking Water Act. . ,
, However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to .
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , .'.,'.
705
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DCN . PH4P094
COMMENTER General Motors Corp. ,
RESPONDER SS
SUBJECT EQUV . ' - . , .
SUBJNUM 094 - '
COMMENT .
Executive Summary - The following sections [Statutory Authority -
Judicial Ruling Integration with Other Statutes Sec. 1006(a) and
(b) Intentional and Unintentional Dilution Effects Described by CWM
v. EPA and Point of Generation] describe and pose several
arguments favoring Option 1, and disfavoring Options 2 and 3.
These arguments are based primarily on statutory and
judicial interpretations which explained in detail in the following
sections and are summarized as follows: . -
The Court in CWM v. EPA stood mute in distinguishing between
1 unintentional and intentional dilution. Congress clearly intended to
not to include in the LDR program those streams that
are unintentionally diluted in a manufacturing process (emphasis
added). 'RCRA Sec. 1006 states that RCRA should not conflict with
other environmental statutes or with itself as in the case of
controlling organic air emissions (emphasis added).Statutory
requirements under Sec 3004(d) have not been satisfied when
considering the regulation of "decharacterized" wastes. A particular
waste's characteristics as described under 3 004(d) at the point of.
environmental impact should be the factors that are considered when
expanding the LDR program and not what the waste may have been at
its point of generation. Unintentional dilution effects are
accepted and dealt with in other environmental programs. Increases
in capital, labor, administrative cost and risk to the workforce
outweigh any environmental benefit that may be realized. Options 2
and 3 are counter indicative of the goals of pollution prevention.
Intentional and Unintentional Dilution
Discussion of the Legislative History in the Phase III proposal
(60 FR 11707) describes legislative intent with regard to dilution ,
of hazardous constituents either intentionally (diluting for
purposes only to meet LDR) and unintentionally (dilution that
occurs as part of the manufacturing process). Footnote 5 (60 FR
11707) states:
"The .Committee intends that dilution to a concentration less than
the specified thresholds by the addition of other hazardous waste
or any other material during waste handling,
transportation, treatment, or storage, other than dilution which
706
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occurs as a normal part of a manufacturing process, will not be
allowed. Such hazardous waste would stiilbe prohibited from - '.
, land disposal, "iv (emphasis added)
Clearly, Congress expressly intended a prohibition against the .
intentionaldilutionofhazardous waste to comply with LDR as
, supported by the court in CWM v. EPA. However, .Congress
also expressly intended to not include that "dilution which occurs
as part, of the manufacturing process, "iv To this point, situation .,-.
or intent the Court in CWM v. EPA appeared to stand silent. . '
' Dilution Effects Described by CWM v. EPA ' .
Additionally, in CWM v. EPA the Court states that dilution does
not destroy, remove or immobilize hazardous constituents. ,It .
. should be noted that dilution does indeed cause a drop in the , '
concentration of hazardous constituents where the toxicity or the
.likelihood of migration of the hazardous constituent has been .
' substantially diminished or reduced to a point where 3004(d)4 and
3004(m)(l) as satisfied. However, the Court in CWM v. EPA failed
to recognize that the ability for a contaminant to migrate and
cause detrimental effects upon the environment are directly
proportional to that contaminant's concentration in a particular .
environmental media. Granted, as pointed, out by the Court (976 F2d
2 at 23), that a threefold increase in water causes a threefold
decrease in the contaminant's concentration the net effect on the
, mass of contaminant is zero. That is, regardless of the amount of ,
dilution occurring the amount of.contaminant remains the same.
What the Court did not acknowledge is that threefold increases in ,
dilution; decrease effects of toxicity and the ability to migrate
approximately three times.
EPA has considered such unintentional "dilution" effects in the -
management of contaminants in other media. For example, concepts
of "mixing zones" and "dilution factors" in Clean Water
Act regulations; air dispersion modeling in the Clear Air Act and
. multipath analysis in the Hazardous waste Identification Project of
RCRA, are used to assess a contaminant's detrimental . .
effects(toxic) on aquatic life, etc., and its ability to migrate -.
at the point of environmental impact.
RESPONSE: , .
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, arid air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
707 '-.."-.
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wastes .are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
/reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996* the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are-no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed, options on August 22, 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a Unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. '
\
However, .the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these.
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
There is one caveat. For characteristic hazardous wastes that are managed in CWAor CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standards is recovery of -
organics) remain prohibited unless treated pursuant to the promulgated method.
NOTE TO EPA: This response may still need to address the larger comment of intentional
vs. unintentional dilution. Direction is need to develop this response. ' . ,
708
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DCN . PH4P094 ' .
COMMENTER General Motors Corporation ; -, ' " - "
RESPONDERSS ,
SUBJECT EQUV
SUBJNUM 094 , - '
COMMENT -. . ' ' ' /'' ' , ' ' ,
Conclusion and Recommendation with Regard to Judicial and Legislative Intent (Options 1,2, or
3) . _ , ' - - . ' '
' -
Arguments presented in the preceding sections have been summarized as follows:
The Court in CWM v. EPA stood mute in distinguishing between unintentional and intentional
dilution. Congress clearly.intended to not include in the LDR program those streams that are
unintentionally diluted in a manufacturing process (emphasis added).
RCRA Sec. 1006 states that RCRA should not conflict with other environmental statutes or with
itself as in the case of controlling organic air emissions (emphasis added). Statutory requirements
under Sec 3004(d) have not been satisfied when considering the regulation / ;
of "decharacterized" wastes. A particular waste's characteristics as described under 3004(d) at the.
point of environmental impact should be the factors that are considered when expanding the LDR
program and not what the waste may have been at its point of generation. Unintentional dilution
effects are accepted and dealt with in other environmental, programs. ( '
Increases in capital, labor, administrative cost and risk to the workforce outweigh any.'
environmental benefit that may be realized. Options 2 and 3 are counter indicative of the goals of
pollution prevention. . .
For these reasons the only Option the Agency should consider is Option 1 as describedJn the
preamble on 60 FR 43659.
RESPONSE '-._. ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment .via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
. a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will hot promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22 j 1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean.Water Act or, for underground injection wells, the Safe
''..-/"- " -. " . 709 . . >.'
-------
Drinking Water Act.
/ '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transferof hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , . .
710
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DCN PH4P095 "
COMMENTER GE .. ' .
RESPONDER PMC
SUBJECT EQUV - , - -
SUBJNUM 095 '
COMMENT ' ''.-''.' '
A. The Agency should adopt Option 1 because it is consistent with
the Chemical Waste Management court's decision and represents sound'
policy.
1. The Agency should adopt Option 1 because the court's decision
in Chemical Waste Management only requires control of hazardous
constituents prior to discharge from CWA SURFACE impoundments.
EPA indicates that it is disposed toward interpreting the Chemical
Waste Management decision to require that the Agency takes steps to
regulate cross-media transfers of UHCs from CWA 'surface
impoundments, including subjecting CWA surface impoundments to
leak, detection and air emission requirements, as well as standards
for sludge that accumulates in impoundment seven if that sludge
does not exhibit a hazardous waste characteristic.6 With the
exception of the court's statement that EPA must "propose a method
of treatment" that would deal with significant threats to human
, health and the environment posed by decharacterized ignitable
wastes containing"high levels of hazardous constituents" that may
volatilize in surface impoundments,? there is no basis whatsoever
, in the opinion for EP A's suggestion that it is required, or
allowed, by RCRA to promulgate surface impoundment standards. As ^
indicated by the following messages from the court's decision, the
decision is absolutely clear that if a formerly characteristic
, waste no longer
exhibits a characteristic at the time it enters a CWA surface
impoundment, the surface impoundment should not be regulated under
RCRA: ' > '
"Congress, when enacting RCRA, was cognizant of the substantial
development of CWA systems, and, thus, permitted regulatory ^
"accommodation" of RCRA and CWA systems. Thus, we agree with the
EPA that, under RCRA, diluted formerly characteristic wastes may
be placed in Subtitle D surface impoundments which are part of an
integrated CWA treatment train. "8
"Although a surface impoundment is technically a form of 'land
disposal', and treatment therein normally would be at odds with the
command of RCRA, this approach is nonetheless acceptable because
RCRA requires some accommodation with CWA."9
"The EP A's decision to permit 'decharacterized' hazardous wastes
711
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-to be deposited in surface impoundments as part of continuing
treatment is a reasonable accommodation." 10 .
3. The Agency should adopt Option 1 because planned, proposed,
and existing state and federal requirements provide adequate
protection of human health and the environment, deferral to those
programs would avoid confusing, potentially overlapping regulatory
programs, and adoption of Option 1 would avoid significant
regulatory disruption incurred at great expense with relatively
little benefit. .
As the Agency has pointed out in the Technical Support Document,
there,are a number of existing statutory and regulatory provisions s.
that address risks intended to be addressed by the proposed Rule.20
These state and federal provisions include regulations covering
construction and design of Subtitle D municipal solid waste, ,
landfills, air emissions from certain non-hazardous wastewaters,
and design and operation of waste water surface impoundments.
The Agency did not, however, consider one important category of
state law. In many, if not all, states, the state water pollution
control acts and regulations prohibit the discharge of pollutants
into groundwaters of the state.21 Accordingly, in these states,
leaks of wastewater from a CWA surface impoundment would be flatly
prohibited without a state discharge permit. These latter permits .
generally set limits on the amount of toxic substances that can be
discharged. ' - .
These state provisions, therefore, prohibit the. very releases that
Option 2's leak detection requirement are intended to prohibit.
Based upon the totality of provisions that may apply to risks
posed by air emissions, leaks, and sludges from surface
impoundment, it is clear thatthe Proposed rule will provide little
environmental .benefit. i
At the least, the Agency should include consideration of these
potentially available protections when assessing the risks posed by
surface impoundments. The essential question in this case is
whether additional regulations are necessary to reduce risks posed .
by surface impoundments to acceptable levels.. As such, surface
impoundment risks cannot be considered in a regulatory vacuum;
Rather, the risks must be considered in light of existing
statutory and regulatory controls. Otherwise, the Agency runs a
significant risk of promulgating regulations that overlap with
existing regulations, thereby creating a confusing mass of
requirements. The Agency has already recognized this concept in
its proposed exemption for corrective action.22GE's review of the
, 712
-------
. Agency's risk determination methodology, however, indicates-that
existing prohibitions on linpermitted grpundwater discharges were
not factored in to this risk determination.23 Accordingly, the
Agency's risk determination does not accurately reflect, .
the potential risks posed by surface impoundments.
B. If the Agency nonetheless adopts Option 2, the Agency should
modify and clarify the proposed Rule.
1. If the Agency adopts Option 2, the Agency should exempt from
Option 2 wastewater sumps, wet wells, and lift stations because
such units do not meet the Agency's definition of
"surface impoundments" and do not present the risks that the
Proposed.Rule is intended to address. .
The Froposed Rule applies to certain "surface impoundments". This
definition of a surface impoundment is therefore critical to the .
applicability of Option 2. The Agency's regulations and background
documents supporting the Proposed Rule indicate that the Proposed
Rule is intended to apply only to those units that are commonly
thought of as surface impoundments. Such units include .wastewater
holding ponds, settling basins, aeration ponds, and clarification
and finishing ponds. In applying its regulations in the past,
however,.the Agency has adopted an extremely broad definition of
surface impoundments. Underthe Agency's broad interpretation of
the definition of surface impoundments, Options 1-3 of the Proposed
Rule would apply to units that are not commonly thought of as '
surface impoundments and are not utilized for those .
purposes identified above. Such units include concrete wastewater
treatment system sumps, wet wells, and lift stations.
The Agency's regulations define a surface impoundment as ,
A facility or part of a facility which is a natural topographic .
depression, man-made excavation, .or diked area formed primarily of
earthen materials... which is designed to hold an accumulation
of liquid wastes or wastes containing free liquids, and which is
not an injection well. Examples of surface impoundments are
holding, storage, settling, and aeration pits, ponds, and
lagoons.24
This definition indicates that a surface impoundment is a
basin-like structure with earthen sides and foundation. This view
is supported by the background documents for the Proposed Rule. The
technical support document for the Proposed Rule states that CWA
surface impoundments are basins used to hold large quantities of
wastewater and are comprised of a foundation and an earthen dike
with a sloping side.25 Both the Agency's regulatory definition
713
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and the Technical Support Document also indicate that in wastewater
treatment systems, surface impoundments are used for wastewater
clarification, equalization, and treatment.26 , .
It is unclear, however, whether the Agency would interpret the
definition of a surface impoundment much more broadly than the
above sources would suggest. 'Previously, the Agency has addressed
the issue of how to distinguish a-tank from a surface impoundment
for the purposes of RCRA. The Agency has essentially stated that a
tank is any unit which, if free standing (i.e.,not surrounded by
. earth) and filled to capacity with the material it was intended to
hold, would maintain its structural integrity.27 This could
arguably be read as'implying that any unit not meeting the
definition of a tank would be considered a surface impoundment.
If so, under such abroad view of what constitutes a surface
impoundment, the applicability of the Proposed Rule would also be
much broader than the Agency apparently intended. Under such a
broad view, a concrete sump used to aggregate wastewater in a
treatment system could be considered a surface impoundment and,
accordingly, would be subject to the Proposed Rule. *
.Most of GE's facilities have extensive systems to collect,
transport, and treat wastewater from a large number of individual
sources within a facility, as do most manufacturing
facilities. These systems often include numerous concrete
structures that are either partially or completely surrounded by
earth and that are used to aggregate two or more wastewater
streams for more efficient transport or treatment. In some cases,
these units are'also used for elementary neutralization of highly
acidic or basic wastewater streams. In essence, these units serve
as a part of the wastewater collection system. As an example, at
one of GE's facilities, 50 percent of the potentially affected
units are sumps that are integral to the proper operation of the
facility's wastewater treatment system.
Comparing the construction and uses of these sumps, wet wells, and
lift stations to the construction and uses of surface impoundments
as described by the Agency in the Technical Support Document, it is
clear that the Agency did not intend for the Proposed Rule to '
apply to such sumps, wet wells, and lift stations. As noted above,
the Agency describes a surface impoundment as a large basin-like
structure that is constructed primarily of earthen materials
and that is used to contain wastewater for some period of time in
order to conduct some form of treatment. In contrast, sumps, wet
wells, and lift stations are usually much smaller structures
that are constructed of reinforced concrete and used primarily to
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aggregate and transmit wastewater to other units. .
In addition, sumps, wet wells,.arid lift stations would not
generally pose the same level of risk that may be posed by a «
v surface impoundment. Because sumps, wet wells, and lift stations
are generally much smaller than surface impoundments, and
accordingly have a much smaller liquid surface area, the air
emissions from sumps, wet wells, and lift stations would be
considerably less than from surface impoundments. As a result,
risks posed by air emissions from sumps would be correspondingly
less than from surface impoundments. Also, because of their uses,.
sumps, wetwells, and lift stations would generally hot accumulate
large amounts of sludge, whereas surface impoundments are designed
generally to accumulate sludge. Therefore, the overall risks
posed by sumps, wet wells, and lift stations is much less than the
risks posed by surface impoundments and require less regulation
than surface,impoundments.
2. If the Agency adopts Option 2, the Agency should clarify that
Option 2 does not apply to corrosive wastewater that is
neutralized. . - '.
The brief description of the Proposed Rule suggests, but does not
clearly indicate, that "Option 2 would not apply to units managing
waste water that was corrosive at the point of generation but that
has been "decharacterized" by neutralization rather than
dihition.29 The Agency does make this point in the Technical >
Support Document, which states that if the characteristic
wastewater is decharacterized by any means other than dilution,
then the Proposed rule does not apply.30 Moreover, in Chemical
Waste Management, the relevant portion of the court's holding was
limited to the narrow issue of whether decharacterization by
dilution is an acceptable form of treatments 1
As such, the Proposed Rule should be similarly narrowly tailored
to address only situations where the characteristic of corrosivity
is removed by dilution. Where corrosive wastewater is
chemically neutralized, the court's edict is satisfied because
neutralization effectively eliminates the risk posed by such waste
and therefore meets the requirements of RGRA ° 3004(m);32 It.
should also be pointed out that neutralization can occur, and is
the case for several of GE's facilities, by mixing
an acidic wastewater with a basic wastewater. This type of
neutralization should also exempt wastewater from Option 2 because
it is chemically removing the hazardous characteristics of
both streams just as if each stream were separately neutralized.
This "mutual neutralization" of acidic and basic wastewater streams
715
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also eliminates the need to transport .and use hazardous material '
for neutralization of these streams, thereby eliminating risks to
human health and the environment. Accordingly, the final rule for
Option 2 should clearly state that the rule does not apply to .
surface impoundments managing wastewater that exhibited the
corrosivity characteristic but was decharacterized by
neutralization: ....
8, If the Agency adopts Option 2, the Agency should exempt from
Option 2 surface impoundments that are used for spill containment - -
or storm water overflow. \ ,
Several GE facilities have surface impoundments that are used for
spill containment and containment of wastewater during overflow
conditions. These surface impoundments are used only occasionally.
For example, wastewater would be diverted to a spill containment
basin if a spill occurs in the manufacturing area and contaminates
the wastewater with an excessively high concentration of
pollutants. Such high levels pose a risk to the biological
treatment system. Accordingly, such wastewater must be isolated and
bled into the system over time. Because such events are not part
of the normal manufacturing operations, the spill containment
basin would contain wastewater only occasionally. Moreover,
because many of GE's operations are batch operations and wastewater
can be diverted to the spill basin from several areas of the
plant, it is also possible that when such an event does occur,,the
wastewater that is discharged to the spill containment basin would.
not contain decharacterized ICR Wastewater. This means that a
spill containment basin is likely to contain decharacterized ICR
Wastewater very occasionally. '
Similarly, several GE facilities utilize surface impoundments to
contain wastewater during overflow events. These events are
typically due to the fact that storm water runoff from
process areas is discharged to the wastewater treatment system.
During times of unusually heavy storm events, this stormwater
runoff may overload the wastewater treatment system's ;
hydraulic capacity. Therefore, it is necessary to have a way to
contain this overflow until it can be bledback into the system
gradually. For the same reasons explained above, these overflow
basins would contain decharacterized ICR wastewater only
occasionally. .
As such, these basins do not pose anywhere near the same risks
posed by wastewater surface impoundments that contain wastewater
continuously. It would not make sense to require facilities to
716
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undertake costly modifications of spill and overflow containment
' , basins in order to protect against releases of hazardous
constituents that may occur only rarely. Moreover, it is clear _,-'.,
that the Agency did not include such basins in its cost and risk
, ; estimates. For these reasons, the Agency should.exempt from Option
2 any surface impoundments that are part of a CWA WASTE WATER
treatment system and are used to contain wastewater overflow or '
spill containment. ' . . . , . '
RESPONSE ''< ',-..-
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that .
underlying hazardous constituents in decharacterized wastes were not released to the ' '
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludgesi and air
.emissions from surface impoundments (EPA proposed options oh August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes.are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
.. Drinking Water Act. . ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to '
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. :
DCN PH4P095 . ,
COMMENTER GE >
RESPONDER SS
SUBJECT EQUV
SUBJNUM 095 ' .
COMMENT , .
4. The Agency should adopt Option 1 in order to avoid imposing
any potentially unnecessary requirements on CWA surface
717
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impoundments until the Agency finalizes other relevant rules
. and the Agency obtains more data regarding risks posed by CWA . ,
surface impoundments.
GE believes that the Agency should defer promulgating a final rale
until after the Agency has resolved issues raised by related
. proposed and final rules. Previously, the Agency has proposed or
finalized a number of rules that raise issues pertinent to the
Proposed Rule. One such rule is40 C.F.R. Parts 264 and 265,
Subpart CC. Under Option 2 of the Proposed Rule, the Agency is
currently proposing to adopt SubpartCC requirements for
controlling air emissions from surface impoundments. SubpartCC,
however, is currently being challenged and may change. Most
notable, the method to be used to determine the concentration of
-VOCs in the wastewater is in dispute. Because of the uncertainty
iri measuring applicability levels, interested parties cannot
determine whether the Proposed Rule applies to them.
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the .
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act~(60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrpsivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
. President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660),
Today's Phase IV, final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60.FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is remoyed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments.. The findings of this study!, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . '
Risks from air emissions will be considered in this study. The commenter is correct in noting
that Parts 264 and 265, subparts CC* of 40 CFR regulate certain air emissions from hazardous
waste management units such as surface impoundments, as well as all units downstream from the
718
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point of introduction of a specific hazardous waste, until such time that treatment of the volatile
organic chemicals occurs. The subpart CC requirements are limited to specific volatile organic
chemicals present at greater than 100 ppmw in these hazardous wastes. EPA cannot predict at
this time whether additional volatile or semi-volatile organics not addressed by the subpart CC
requirements may prose a potential risk to human health and the environment. EPA may
consider additional requirements for air emissions from hazardous waste, management units if
such requirements are indicated by the risk assessment.
719
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DCN ', PH4P095 ,
COMMENTER GE ,
RESPONDER SS
SUBJECT EQUV .
SUBJNUM 095 ^ ^ . ;
COMMENT. - '- : .- ; ' -. ' . ' , ".
4. If the Agency adopts Option 2, GE supports the Agency's v
proposal to exempt all facilities that are subject to RCRA's
corrective action provisions because such provisions give the .
Agency adequate and flexible authority to address any unacceptable
risks posed by CWA surface impoundments.
The Agency has proposed exempting from Option 2 all facilities .
that are part of a permitted hazardous waste treatment, storage, . -
and disposal facility because RCRA's corrective action authority
would provide adequate authority to address releases from the
surface impoundment. GE fully supports this exemption. A number
of U.S. facilities operated by GE currently have Part B permits and
additional facilities are or were under interim status. All
of these facilities are subject to the Agency's corrective action /
authority. Requiring these facilities to also comply with the
extensive and expensive requirements of Option 2 would be
unnecessary and would provide no additional environmental benefit.
Therefore, if the Agency adopts Option 2, GE strongly urges the .
Agency to exempt facilities that are subject to RCRA corrective . ,
action.
GE would also that note the scope of this exemption should be
' coextensive with the corrective action jurisdiction. Accordingly,
because this authority also applies to facilities that previously .
. had a TSDF part B permit but have since converted to generator-only
status, 36 the exemption should apply to these facilities as well.
RESPONSE: ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
720
-------
43655-43677)), Furthermore, the treatment standards for TC metal wastes in today's rule do hot
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the .Clean Water Act or, for underground injection wells, the Safe
. Drinking Water Act. / . ' ._...... .
- However, the Land Disposal Flexibility Act does mandate EPA to undertake-a 5-year study to
determine any potential risks posed by cross-media transfer, of hazardous constituents from these
surface impoundments. The findings of this study, begun' by the Agency in April, 1996, may
'result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . _ ' - ,
721
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DCN :. PH4P095 . ' .
COMMENTER GE
RESPONDER SS ' ' ' ' ",
SUBJECT EQUV -
SUBJNUM 095
COMMENT ' ' . '. ,
10. Ifthe Agency adopts Option 2, the Agency should seek public
comment on the precise language of the regulation prior, to . . ' ,
promulgating the final rule in order to provide for adequate public '
review and comment. :
Option 2 of the Proposed Rule is set forth in the Federal Register .
in narrative form only. The Agency did not provide the text of
. Option 2. As the Agency is well aware, however, the precise
wording of a regulation is extremely important in determining - '
whether and how a regulation will work in practice. As such, it is
' imperative that the Agency provide interested parties with an .
opportunity to comment on the text of Option 2 before the Agency
finalizes this rule. Therefore, if the Agency adopts Option 2, the .
Agency should publish the text of Option 2 as a proposed rule and ,
seek comment on such text.
*" - . * »
RESPONSE: '.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. v . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings,of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
722
-------
723
-------
DCN PH4P095
COMMENTERGE :
RESPONDERSS ' . , '
SUBJECT EQUV
SUBJNUM 095 . .
COMMENT :' '.','..-""
Of greater significance is the impending hazardous waste identification rule ("HWIR"). It .
.is GE's understanding that the.HWIR will set concentrations of hazardous constituents below \
. which a waste would no longer be subject to regulation under RCRA, including the land disposal
restrictions. It is also GE's understanding that these HWIR "exit criteria" are risk-based and,
accordingly, for some hazardous constituents will be lower than the universal treatment
standards,
which are technology-based. If the Agency promulgates the Proposed Rule before the HWIR, a
number of facilities would be required to come into' compliance with the Proposed Rule's
requirements only to be exempted under HWIR.
RESPONSE .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered npnhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. Y .
1 '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may .
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
724
-------
DCN . PH4PQ97 . '
COMMENTER Hazardous Waste Management ' > -
RESPONDER PMC
SUBJECT EQUV ,
SUBJNUM 097 ,
COMMENT - . '-.. .
Options To Ensure That Underlying'Hazardous Constituents In
Decharacterized Wastes Are Substantially Treated Rather Than
Released Via Leaks, Sludges, And Air Emissions from Surface
Impoundments (60 FR 43655) . ,' .
The Agency proposes three options for addressing cross-media - . '
releases via leakage, air emissions, or disposal of untreated- . .
sludges from Subtitle D surface impoundments which ^ .
' receive decharacterized wastewater discharges. Of the three options
presented, the HWMA favors Option 1 because it is the most .
1 practical approach proposed and does not add another layer . -
_- of requirements to existing regulations which adequately address . '
Subtitle D surface impoundments when they are located at RCRA
. permitted or interim status facilities. Because 42% of - .
these Subtitle D surface impoundments are located at TSDFs which
already have monitoring and release requirements (60 FR 43659), if
cross-media releases occur from these unpermitted impoundments such
impoundments can be addressed by the Agency under the authority of .
RCRA§3004(u) or §3008(h). \ - . - .-
RESPONSE .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the -
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no .longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
.apply to TC metal wastes if the characteristic is removed and the wastes are subsequently, treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
prinking Water Act. . .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
' ' . ' '725 . ' ' .-,.'*...'
-------
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by,the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
726
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DCN PH4P099 .. . . '
COMMENTER Ohio EPA, " ' .
RESPONDER PMC .
SUBJECT EQUV -
SUBJNUM 099 . - . - '
COMMENT
Ohio has few pre-bjological wastewater surface impoundments in .
' . Ohio. Most of the surface impoundments remaining are
post-biological polishing ponds. Ohio has some aged ponds which are
still in operation which have no liners, no leak detection, and no'
groundwater monitoring. :In addition, some surface impoundments are
- operating with no point of discharge. '
DHWM disagrees with the position that properly operating surface
impoundments that receive decharacterized waste should be /
considered land disposal units. However, it is conceivable ;
that leaks from these units may be considered disposal of UHCs.
' Contamination may enter drinking water tables, via groundwater thus
potentially harming human health and the environment. If there is a
~ substantiated risk from UHCs, DHWM supports option 2 proposed by
U.S. EPA. Ohio believes that this option will best control those
impoundments which are not being managed properly.
Wastewater treatment facilities in Ohio are subject to regulations
promulgated under the Clean Air Act (CAA). Ohio EPA's Division of
Air Pollution Control requires facilities emitting more than 10
Ibs/day/unit to obtain permit arid maintain records. Facilities -
emitting less than 1 Olbs/day/unit are required to keep records for
, verification. DHWM prefers that our progressive air pollution
control division continue to successfully oversee CAA programs
that regulate surface impoundments. In addition, it is realized
that the CAA programs is developing regulations that .will address
air emissions from wastewater surface impoundments in certain
industries.
The presence of volatile organic compounds (VOCs) does not
guarantee that these compounds will be released into the
atmosphere. Many factors affect VOC emissions, such as
evaporation rates of wastewater, flow rate through the impoundment,
type of VOC's, and chemical makeup of wastewater. .Therefore, '
wastewater impoundments should be evaluated on an individual
basis. DHWM prefers that the regulation of air emissions from
surface impoundments remain solely under the oversight of CAA
program.
DHWM request's detailed guidance on how deferral to CAA ...
727
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.regulations will be implemented. It is unclear as to whether a
facility which is excluded from CAA will also be excluded from
the proposed RCRA extended Subpart CC rules. Will a facility need
to hold a permit issued by CAA program to be excluded from these
. RCRA rules? ' , , ' " '
RESPONSE ' * " . . '''
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that '
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
.wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic): On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV filial rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act'
> ' \
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April.; 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation, . . . . '
728
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DCN PH4P099
'COMMENTER Ohio EPA ,
^RESPONDER SS. .
'SUBJECT ~ EQUV , , -. ' .
SUBJNUM '099 ' , ' . ., ' ' .
COMMENT . -'.- , . - . ;
Ohio EPA's Division of Hazardous Waste Management (DHWM) reviewed
the above referenced Federal Register and has the follow comments.. * .
Although the U.S. EPA has goocl intentions, we did not find evidence
; that the presence of Underlying Hazardous Constituents (UHCs) in .-'..'
..v - surface impoundments containing decharacterized wastewater pose a
.risk to the environment that justifies adding them to the universe
of facilities regulated under RCRA. We agree that " ...
. additional regulatipn of these types of impoundments may be >/..'
necessary. However, RCRA is not the best program to regulate them. .
Most of Ohio's wastewater surface impoundments are secondary or
tertiary treatment-units regulated underthe Clean Water Act (CWA). '.','
DHWM does not believe properly operating surface impoundments
otherwise regulated under the CWA need to be regulated .under RCRA.
\ , . ' ."*'--
.- Ohio has few primary surface impoundments. Wastewater surface
impoundments are not required to remove sludges based upon a time
1 schedule. Sludges are removed when it is deemed necessary by, the
facility. By managing leaks, DHWM feels that any risk P9sed by .
sludges in the surface impoundment will be controlled. We are
confident that any situation resulting from improper handling of
sludge will be regulated under other laws; Regulation under RCRA
is not necessary. , '
RESPONSE: . . ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that,
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act,(60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardoiis. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not ,
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
. . " *- ' ' ' v
' ' ' ' - 729' '- '- '
-------
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ., _ ' ' ;'"..,.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . .
730
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DCN . PH4P100
COMMENTER Phillips Petroleum, ".
RESPONDER PMC
SUBJECT EQUV
SUBJNUM 100 '"
COMMENT ^
II. Wet Weather.Flow (Stormwater) Impoundments Should be Exempt
, .-N from Phase III and IV LDRs '.
Because many petroleum refineries are located in areas that
. receive large amounts of rainfall, most facilities have large
stormwater impoundments. These stormwater impoundments ("wet
weather flow impoundments") receive relatively small overflows of
process water which may contain decharacterized wastewaters, along
with stormwater. After the storm event, the mixture of stormwater
and process water can be retained in the impoundment and fed back
, through the wastewater treatment system at a controlled rate, or if
sufficiently clean, may be directly discharged. Separate stormwater
impoundments are necessary so that the large amounts of - .
. water managed during a storm event will hot flood the wastewater
treatment system and interfere with the efficiency of the
aggressive biological treatment process. ' " >
Wet weather flow impoundments are fundamentally different from the
process water impoundments considered under this rulemaking.
Typical wet weather flow impoundments receive water infrequently, ,
and after receipt are drained to make space available for the next
storm .'''" ,
event. If the UTS are exceeded at all, they are only exceeded for
short, transient peaks at the beginning of storm events when the
proportion of process water to stormwater is the
. ' greatest Consequently, there is limited total loading of UTS
constituents into wet weather Flow Impoundments. Because of the
very low levels of UTS constituents that find their way into
such impoundments, and their short-lived residence time, the
environmental risk posed by these units is small or nonexistent.
, Because of the low risk associated with these units, and high cost
of alternative means of managing stormwater, EPA should exempt wet
weather flow impoundments from the Phase III AND Phase IV rules. A
similar finding was made in the F037 and F03 8 (Primary Refining
Sludge)listing [55 Fed. Reg. 46374 (Nov. 2,1990)]. The
environmental benefits offered by these units, by insuring the
quality of the wastewater treatment in the process wastewater
. treatment system, when balanced with the very minimal risk and high
cost of alternative means of configuring the stormwater management
731
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system, suggest that these units should be exempt from the Phase
r III and Phase IV rules.
III. EPA Should Adopt Option 1, No Further Requirement for
Non-Hazardous Surface impoundments. '"
* « i '
EPA discusses three potential options fpr addressing what, if any
requirement should attach to land based units that manage
decharacterized wastes. Phillips urges EPA to adopt Option 1,which
provides for no additional controls outside of the Phase III LDR.
As discussed more fully below, the "Third-third" decision does not
require, or even suggest, any additional requirements for surface
, impoundments receiving decharacterized waste, nor was the
"treatability group doctrine" affected by the court's decision.:
Furthermore, the low risks posed by Clean Water Act(CWA) surface
impoundments do not warrant any additional regulation under RCRA
Subtitle C. ,
Unfortunately, while EPA seems to support the "treatability group
doctrine" in the early pages of the Phase IV preamble, the sludge
management standards presented in Option 2 undermine
the"doctrine". Instead of the trigger for sludge treatment being
the TC levels (as would be the case if
the "treatability group doctrine" was followed), EPA designates
UTS levels as the trigger for requiring LDR treatment of sludges.
Phillips urges EPA to reexamine its position and maintain
the"treatabiiity group doctrine" as it was originally applied.
V. If EPA Should Adopt Option 2
If EPA decides it must regulate non-hazardous surface .
impoundments under the Phase IV rule, EPA should adopt Option 2. As
explained in the Comments of the American Petroleum Institute(API)
submitted to the docket in response to this proposal, biological
surface impoundments do not present significant environmental risks
for sludges or leaks. Furthermore, since all petroleum refineries
are subject to the petroleum refinery MACT, air emissions from
wastewater units are already regulated under the CAA.
VI. EPA Should Not Adopt Option 3. ..
Phillips agrees with EPA's conclusion that Option 3 is not ,
appropriate. Requiring MTR for surface impoundments managing >
"non-hazardous waste is clearly not required by-the
Third-Third decision of the RCRA Statutory scheme. It would cause
excessive cost and regulatory burden and would trump many reasoned
and.considered decisions that EPA made in
facility-specific regulations. As EPA observed, the costs are not
' ' ' ' . ' " 732 " ' - - '
-------
justified by the risks that these units present. It would be'
clearly erroneous for EPA to adopt Option 3. It would be
, completely unconscionable should EPA do so and not allow the full >
four-year compliance period provided by Section3005(j). The issue
is governed by the position adopted by EPA that Section 3005(j)(6) provides that
non-MTR impoundments must retrofit or close within
four years of the date of identification or listing of the newly
regulated wastes. , ' . ^
It would be both illogical and inequitable to conclude the period . '
would run from the initial identification of the ICR wastes (well '
over four years, ago), since generators of such wastes will have no
way of knowing that their decharacterized'non-hazardous wastes
. .could not be placed in Non-MTR surface impoundments. Thus,'it would
be impossible to comply with that requirement now and unfair to" y '
start the clock before notice is given that additional ' , -,
requirements will apply., v -
VII. Non-Hazardous CWA Surface Impoundments Simply Don't
Warrant Further Regulation. , . '
;. As EPA observes in the preamble to the proposed rule, there'are . .
numerous regulatory authorities that EPA has or may use to regulate " .
non-hazardous surface impoundments that pose unacceptable risks [60
Fed. Reg. 43659-60]. Indeed, since 1990 there have been
numerous regulations, several of which are discussed below which
dramatically reduced the toxicity of water managed in wastewater . .
treatment systems since 1990. For example, the organic
v Toxicity Characteristic (TC) rule [55 Fed. Reg.-11798 (Mar. 29,
1990)] regulates the toxic constituents that are most likely to .
pose a risk to human health or the environment. As a consequence
of the TC rule, many surface impoundments have become subject to ' ,-
RCRA Subtitle C, or to avoid such regulation, have reduced the
concentration of toxic constituents entering the impoundments.
Similarly, the Agency has promulgated listings that have subjected
additional CWA surface impoundments to full RCRA Subtitle C
regulation^ For example, in 1990 EPA listed F037 andF038, (Primary . .
Refining Sludge) [55 Fed. Reg. 46354 (Nov. 2, 1990)]. This listing
resulted in the Subtitle C regulation of surface impoundments
. upstream of biological treatment at petroleum refineries. If EPA
believes that there are unacceptable threats posed by a .
' particular industry, the agency can apply a more appropriate <
mechanism to address those threats. A listing determination allows
, the Agency to target its regulations towards actual
environmental threats. An overly inclusive instrument such as
.' proposed Option III is simply not warranted. . .
733
-------
In addition, many federal air requirements, reduce the risk posed
by leaks and sludges as well as risks posed by air emissions. For
. example, in the recent Refinery MACT rule [60 Fed. Reg.43244 (Aug.
,18,1995)] the most common compliance strategy is to reduce the .
. concentration of VOCs before the waste water is introduced to the
surface impoundment. Since there are less hazardous organics .
entering the impoundment, the risks from any water leaking is
reduced, as well as the potential adsorption of organics to the - (
sludge. In fact, the industries covered by the phase IV proposal
have or will have air regulations that could cover wastewater
treatment systems if they were significant source of emissions. As .-
a consequence, EPA either has or will have an opportunity to .
regulate air emissions from wastewater in a manner appropriate to
a particular industry or facility. , :
In addition to these significant regulations that would overlap
with any Phase IV regulation of surface impoundments,regulation of
non-hazardous (Subtitle D) surface impoundments is contrary to the
RCRA statutory scheme, and would provide redundant regulation to
State regulatory programs. RCRA generally reserves the regulation
. ' - of non-hazardous solid waste(Subtitle D) units for the state. See
RCRA Section 4001 etseqJ. Accordingly, EPA should not leverage its
authority under Section 3004(m) to regulate non-hazardous surface
impoundments. .
'VUI. EPA Should Allow Public Review of the Regulatory ;
Language for the Option Selected.
EPA has not proposed any specific language for the three options .
discussed in the preamble. To the extent that this suggests that
the Agency is inclined to adopt Option 1, Phillips supports EPA's
approach. However, should EPA choose Options 2 or 3, the Agency
should allow public review of the regulatory language. The details
. of the regulatory language are particularly important in the
implementation of a complex regulatory scheme, such as the LDRs.
While EPA has explained its intent in the preamble, it is N
important for the regulated community to have an opportunity to
review the actual regulatory language.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
734
-------
President signed the. Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on. April 8, 1996, EPA withdrew its treatment standards for these wastes (61. FR 15660).
Today's Phase IV .final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR '
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to f C metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . _.- , ,
.However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
.regulation. . _ " ,
735
-------
DCN . PH4P101 , , . ...
-COMMENTER Oregon DEQ , . ' -
RESPONDER PMC. ' ','"
SUBJECT EOJJVy .''-.- - - , . "
SUBJNUM 101 ' i ' ..".'*
COMMENT . ' ' ' >; < ' . ..-.-',
1. Cross-Media Releases ..< . ,' '
If an environmental regulation addresses specific hazardous
constituents, and those constituents default into another program, .,
then it too should evaluate those same constituents !
for environmental effect before they are ultimately disposed.
There is no rationale addressing the constituents in the first
place if only to ignore,them when they are disposed. For ,
instance, it does not make sense to evaluate hazardous wastes at
the point of generation for underlying constituents (UHCs) and then
not address them at the point of disposal in a surface
impoundment regulated under the Clean Water Act.
EPA's proposed Phase IV rule does not adequately resolve this , r
issue. The options being considered are very complicated and
contusing. Instead, EPA should streamline the program . '
by evaluating UHCs at the point of generation, during the hazardous
waste characterization phase, rather than under the LDR as is done
currently; The multi-pathway analytical model being considered ,
under HWIR could serve as basis for a revised toxicity .
characteristic (TC)determination regulation, which could include
the UHCs. Under this scheme, generators would evaluate UHCs up
front and know whether they pose a hazard to human health or .
the environment. This would eliminate having to regulate the UHCs
under LDR if the waste is hazardous or has been decharacterized. -
RESPONSE
'.*,'.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the.
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
736
-------
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply, to TC metal .wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ( /
However, the Land .Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media .transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
737
-------
DCN PH4P102
COMMENTED Chevron ' ' . .
RESPONDED PMC , \
SUBJECT EQUV > '
SUBJNUM 102 ''. ' ' ' '.-
COMMENT /
1) Optional Complies with'the Court's Chem Waste Decision. :.
As noted in Chevron's May 1,1995 comments to EPA on the proposed
Phase III LDR rule, achievement of CWA NPDES permit requirements
- including compliance with whole effluent toxicity limits should
constitute treatment equivalent to RCRA LDR standards. Thus,
because the court in the Chem Waste decision made it clear that
satisfying RCRA treatment standards at the point of CWA discharge
is sufficient to satisfy RCRA section 3004(m) requirements, any -.
further LDR regulation of CWA surface impoundments is not necessary
under the court's decision, because any such regulation would.not
.. accommodate the LDR requirements and the CWA "to the maximum extent
practicable." As such, EPA should adopt Option 1 (no new LDR
regulations)because it complies with the courts decision.
2) EPA's Risk Assessment Is Flawed And Can't Be Used To Justify
New LDR Controls on Subtitle D Surface Impoundments.
Besides the above argument, there are other valid reasons that EPA
. should adopt Option 1 .Foremost, EPA has simply not shown that the
risks justify additional regulations. EPA's Risk Assessment lacks
thoroughness and sufficient documentation, and certain risk
calculation uses worst-case and extreme assumptions (contrary to
EPA's own guidance), and can not be relied upon to justify new rule
making. Specifically: , ,
Leak Risk Assessment Used an inappropriate arid overly conservative
DAF of six, and old wastewater data developed before many
industries upgraded their practices, processes and wastewater
systems to comply with CWA NPDES permits, the Toxicity
Characteristic rule, or other laws/regulations, or as a result of
changing business needs. Even so, the Risk Assessment supports
EPA's analysis that biological treatment and post-biological
treatment surface impoundment do not pose significant risks and
should not be regulated by the phase IV rule.
; Sludge Risk Assessment Also used an inappropriate and overly
conservative DAF and out-of-date data. Even so, the assessment
showed that only three pre-bio surface impoundments, out of some
377 industry-wide units evaluated by EPA, may potentially pose
. unacceptable risks. These risks are driven by two UTS '
738
-------
constituents, which we understand are detected today in wastewater -
systems at significantly lower concentrations than assumed by EPA
in the risk assessment. Clearly, even using the existing estimate
of risk, sludges in non-hazardous surface impoundments do not pose .
significant risks to justify industry-wide controls.
Air Emissions Risk Assessment Relies completely on EPA's flawed
risk assessment from its problematic Subpart CC rule^ Extremely
.conservative assumptions are used, like assuming that all VOCs act
as carcinogens and basing maximum individual risk calculations on .
exposure occurring continuously 24 hours per day for 70 years, 25
yards from the source. In addition, EPA did not distinguish risks
from surface impoundments compared to risks from tank units when it
applied the assessment to the Phase IV- rule (As EPA noted in
.footnote 34, page 246 of RIA).and did not present any breakdown of
risk'by type of surface impoundment. Yet, EPA has applied the
results of its flawed risk estimate equally to all types of surface
impoundments. Clearly, the flawed Subpart CC Risk Assessment should
not have been simply transferred to this rulemaking.
3) Air Emissions From Phase IV Surface Impoundments Do Not
"Warrant Further Regulation. . '
Since regulations promulgated under Section 112 of the Clean Air
Actare to cover all major sources of hazardous air emissions
within relevant source categories, there is nd'need to
impose duplicative requirements under RCRA. Under Section 112,
emerging MACT standards (e.g.,Refinery MACT) and existing
Hazardous Organic and Benzene NESHAPs regulations currently or soon
will adequately address air emissions from Chevron's surface
impoundments. ' " ' .
7) Stormwater Impoundments Which Receive Small Amounts Of Process
Water With Previously Characteristic Waste During Storm Events
Should Be Exempt From The Phase IV Rule. /
A number of Chevron facilities are located in areas that receive.
large amounts of rainfall. These facilities have stormwater '
impoundments which are used to manage large quantities of
stormwater runoff. These impoundments can receive relative small,.
intermittent quantities of process water for limited amounts of
time during storm events. , , ,
Because Chevron's stormwater impoundments are regulated by NPDES
direct discharge permits and pose negligible risks, they should be -.
exempt from the Phase IV rule. The negligible risks associated by
these units would not justify the large cost and technical
difficulty associated'with alternate means of managing large
quantities of stormwater. . , . .
' ' ' 739' '. ' ' '
-------
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by. the Clean Water Act or Safe Drinking Water. Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . \
i
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,,! 996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
740
-------
DCN . PH4P106 . ' . ' ,
COMMENTER Pharmaceutical Research Manuf. Assh. ' '
RESPONDED PMC .
SUBJECT EQUV . .."..'
SUBJNUM 106 '
COMMENT , . .' . ^ \ i
PhRMA agrees with EPA's deferral to existing federal rules and
rules underdevelopment, such as Pharmaceutical MACT and Off-Site
Waste Operations NESHAPS, to avoid duplication of air rules.
As stated in the preambled Phase IV, EPA is presently
implementing Section 112 of the CAA to impose technology-based
standards for hazardous air pollutants at enumerated major sources,
requiring control by means of Maximum Achievable Control'
N Technology(MAC
Examples of forthcoming standards are the Pharmaceutical MACT and
Off-Site Waste Operations NESHAPS. These rules are subject to
explicit deadlines, and will address emissions from wastewater
potentially affected by the Phase IV Land Disposal
Restrictions proposed rule. ' , - ; N
PhRMA notes that categorical rulemakings are now in progress that
' : will apply specifically to pharmaceutical operations. Under these
' new rules pharmaceutical firms need to meet the requirements of the
Pharmaceutical Effluent Guidelines (Office of Water) and
the Pharmaceutical MACT (Office of Air). Bpth of these are . '
technology-based regulations, one addressing treatment for .
constituent concentration in wastewater the other dealing with
percent removal requirements to control air emissions. The .
disposal of residuals (e.g., wastewater treatment sludge) from
pharmaceutical wastewater treatment operations would also
be addressed by the Off-Site Waste Operations NESHAPS (Office of
' Air)'. ' ' ' ' ' / .;..-_.'
PhRMA believes that once the above regulations are in place, EPA's
concerns will be more than adequately satisfied with the need for
.any additional requirements under HSWA. , . ,
Therefore, PhRMA suggests that EPA include an exemption from.the
Phase IV Landban rule for surface impoundments that comply with the
forthcoming Pharmaceutical Effluent Guidelines or the
Pharmaceutical MACT and for residuals from surface impoundments
mat comply with the Off-Site Waste Operations NESHAPS.
RESPONSE ;
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
-741
-------
environment, via leaks, sludges, and air emissions from surface impoundmentsin systems - ,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiiity, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the.
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
' Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
i "
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April* 1996, may
result in proposed regulations for these units, if risks are in" fact found that would warrant such
regulation. . ' , '
'742
-------
DCN PH4P107 ' v " .
COMMENTER Uniroyal Chemical Co. . ,, . x '
RESPONDER PMC
SUBJECT EQUV ;
SUBJNUM 10.7 , . '.'.''
COMMENT ' '. ' .-'".' .
1. Uniroyal Chemical recommends that the USEPA address releases
related to Subtitle D surface impoundments through, existing and
future Agency programs as proposed in option 1 rather .than moving ,
forward with the proposed rule. ...
, The proposed rule regulates releases to the au% releases to the
grpundwater, and releases from management of "derived from" wastes
such as sludges removed from the impoundments. In Uniroyal
Chemical's opinion, moving forward with options 2 or 3 will result
in unnecessary regulatory redundancy and yet will not further the
goals of the 1984-Hazardous and Solid Waste Amendments (HWSA) to
the Resource and Recovery Act (RCRA). The USEPA has embarked on a
, regulatory simplification process this past calendar year. Moving
forward with either Option2 or 3 is inconsistent with this goal as
these options will add air standards to RGRA rather than the air, -
regulatory program, these options will add standards to Subtitle C
. for Subtitle D impoundments, and these options will revise the
definition of "point of generation" in 40 CFR 268rather than 40 '
/ CFR261.
The HWSA statue requires that any treatment standards established
under the land disposal prohibition program substantially diminish
the toxicity or mobility, of hazardous waste such that short and
long term threats to human health and the environment are .
minimized: Uniroyal Chemical does not believe that the proposal is
dealing with constituent levels that are high enough in quantity to
be a "substantial" threat. Uniroyal Chemical also believes that
current regulations together with planned regulations will
accomplish the same environmental benefits as implementation of the
Option 2 or 3 programs. There has been significant activity .in
regulating air emissions from surface impoundments in the last five. .
years. Many of these will impact Subtitle D surface impoundments
which receive decharacterized wastewaters. The USEPA describes \
these rules on pages 43659 to 43660 of the preamble to this rule."
They include standards related to the New Source Performance
Standards(NSPS) and Hazardous Organics National Emission Standards
for Hazardous Air Pollutarits(NESHAPS) programs. The USEPA notes
that not all surface impoundments which are covered by this rule
/ are already covered by the current or planned NSPS or NESHAPS
743
-------
miss. Uniroyal Chemical has reviewed these rules for applicability
to their facilities. If these impoundments are not covered under
this large body of regulations, it is likely indicative that the
air emissions are
not significantly harmful or large to warrant significant control
standards. If the USEPA has reason to believe otherwise from their
information collection activities, these air programs would be a . .
more appropriate place to add air rules rather than attempting to
regulate air emissions under the RCRA program.
This proposed rule applies to only Subtitle D surface impoundments
which receive decharacterized wastewaters. As noted on page 43660
of the preamble, many states have Subtitle D programs which
regulate the entire universe of Subtitle D surface impoundments.
While there is a broad spectrum of variation in the state
regulatory programs which vary from those which include liner,
leachate collection, and groundwater monitoring requirements to
those which do not address surface impoundments, it is recommended
that the USEPA review the critical details of these programs and
move forward with its own activities related to Subtitle D rather
than regulating Subtitle D impoundments under the Subtitle C
program.
With regard to management of a sludge generated in a nonhazardous
surface impoundment which received decharacterized wastewater, .
Uniroyal Chemical believes that managing this waste as anything
other than a newly generated waste is contrary to the framework
upon which the Hazardous waste management program is built and will
result in over management of wastes which has little potential to
cause significant harm to people or the environment. There has
been significant distinction in the management of hazardous wastes
which are hazardous due to being"listed" or being "characteristic"
from the beginning of the hazardous waste management programing
1980.'A listed waste has always been subject to the derived from
rule under 40 CFR 261.33(d).The wastes which are listed under this
rule are by far and large listed for toxicity. A
characteristic waste has never been subject to the same degree of
management and with the exception of the toxicity characteristic
wastes is required to be managed as hazardous waste more for its
potential to cause fires, explosion., and other potentially
damaging events rather than toxicity related to human health. Note
on page 33108 of the May 19,1980 Federal Register 'that in
regulating ignitable wastes the USEPA's objective was "to identify
wastes capable of causing fires during routine transportation,
storage and disposal and wastes capable of severely exacerbating a
744
-------
fire once started." With regard to corrosive wastes, on page 33109
of the May 10, 1980 Federal Register the USEP A defined corrosive '.
wastes such that the definition "attempted to address the various
hazards presented by corrosive wastes. EPA chose'pH as one
barometer of corrosivity because waste exhibiting low or high pH
can cause harm to human tissue, promote the migration of toxic
contaminants from other wastes, react dangerously with other , <- ..
' wastes, and harm aquatic life." Land disposal restrictions applied
to decharacterized wastewaters treated in surface impoundments have -
- ' little relevance to the initial objectives. If it were, appropriate
. to carry'through the definition of "hazardous" to characteristic ''
' wastes, Uniroyal Chemical believes'that it would be more
appropriate for the USEPA to manage this activity under the
definitions of,hazardous, waste section of the rules rather than by .. ".
the land disposal restrictions: "Point of Generation" is a
critical definition, not a term of art. Uniroyal Chemical '
recommends that the USEPA not revise the definition through the . ' . i
Phase IV proposed rule. ; . . ' >
3. Uniroyal Chemical recommends that stormwater impoundments not
be included in the rulemaking if option 2 or option 3 is selected. -
The discussions for options 2 and 3 indicated various categories
of Subtitle D surface impoundments that would be excluded from this
regulation. Stormwater impoundments were not in the exclusions. The
regulatory exclusion under 40 CFR 264.1 (8)(I) and 40 CER
265.l(8)(I)excludes immediate response activities related to
imminent hazard (spill) situations. The extension of this section
to any Subtitle D surface impoundments regulated under Phase IV
land disposal restrictions is appropriate as any spill which was " .
other than de minimis in quantity would result in . .
a reportable quantity and the National Response Center, the USEPA, .
or state environmental agency would be informed. These agencies
could advise the facility regarding any special requirements. A , , '
stormwater impoundment should normally receive only dilute , "
wastewaters thus provision of special emission controls or design
, criteria directed towards a potential catastrophic event would be
an unnecessary and costly burden.
RESPONSE ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that:
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe prinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
745-
-------
reactivity, or toxicity when generated but are no longer characteristic). On March 16,.1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides thatthe
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not.
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. -.-,.. .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to ;
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April,' 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . " , v ,
746
-------
DCN . PH4P107. - - . -
COMMENTER Uniroyal Chemical Co.' _ ,
RESPONDER SS
SUBJECT EQUV ' .
SUBJNUM 107 . - ;" . ' ,
COMMENT. ;..-..; . ' ' . ' .
2. Uniroyal Chemical supports the delay of these rules until the
USEPA has fully evaluated the Phase III and Phase IV comments as
mentioned on page 43655. "
Full consideration of all submitted comments should be a part of- .
every regulatory rulemaking. It is especially important in
"' implementing or deciding not to implement the Phase III and Phase
IV Land Disposal Restrictions due to the current proposed - '
legislative revisions related to underground injection wells and
surface impoundments. In addition, Uniroyal Chemical believes that
the USEPA has significantly underestimated the impact of this .. .
regulation on the regulated community if it believes that only 300 , '
surface impoundments will be impacted. This proposal if promulgated
will impact future expansion decisions in any company .which
, operates a Subtitle D Surface impoundment. The selection criteria ' .
for where to install riew production facilities at existing "
] manufacturing facilities will need to include the impact on any . .
surface impoundments if a decharacterized waste will be generated.
RESPONSE: \ ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous:characteristic of ignitability, corfosiyity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited, from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
747
-------
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. . ' v
748
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DCN PH4P109 '..."' '
COMMENTER Ford
RESPONDER PMC
SUBJECT EQUV \ . ,." -
SUBJNUM 109. : . . ' . x .
COMMENT .'.-..-.
The proposed rule provides three separate options for addressing .
the cross-media transfer of'hazardous constituents to air or ground
water from air emissions, sludges, and leakage -
fronV'decharacterized" wastes managed in Subtitle D surface
impoundment's. Although the term"decharacterized" has never been .
- formally defined, it is understood to describe waste streams which
... have been physically changed to no longer exhibit a hazardous
characteristic. Options 2 and3 would require large expenditures of
precious resources to apply Subtitle C monitoring and control
requirements .to Subtitle D surface impoundments (Option 2), or
treat each individual waste stream to meet the universal treatment
standards (Option 3) without corresponding environmental benefit.
Option 1, which relies on existing and proposed regulation to
control these cross media transfers, is a better approach when' ,
considering the effective use of resources, statutory authority,
and me"dia-specific experience within the agency and the
; regulated community. ,
. Both Options 2 arid 3 would require a facility to identify the
"point of generation" for all"decharacterized" waste streams. This
information would be used to determine if the rules are applicable
to a given ^Subtitle D lagoon or surface impoundment as well as
which streams would require pre-treatment (in the case of Option .
' .-3)- ' . . '.':'
This determination would require costly sampling and analysis on
potentially hundreds of sources for a large facility. Currently, it
, is unknown whether a waste stream has been "decharacterized" or not
because individual sewer point source discharges have not been .
historically sampled for RCRA characteristics. The sampling would
have to be coupled with process knowledge by technical experts to ;
assure that the "snapshot" provided by a limited sampling
adequately characterized the point sources. The cumulative costs
described above as well as the added overhead burden of -
documentation make this approach unworkable.
Option 3 requires waste streams to be treated such that the
underlying hazardous constituents would meet the universal
treatment standards at the "point of generation." Typical
Wastewater treatment facilities at manufacturing facilities have
749
>
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.been designed so the industrial wastewater is segregated into at
most two or three streams. That is oiiy wastewater and wastewater
'requiring metals treatment. These wastewaters are aggregated at the .
headworks of the wastewater treatment facility and then processed - :
in a semi-batch manner. This particular arrangement of - ,
the equipment establishes a "central point" within the facility for '
wastewater treatment and thus allows for manageable labor '
.allocation, maintenance and capital spending. To treat ,
hazardous waste streams (wastewater streams flowing to wastewater
treatment) at each point of generation is technically and
administratively impossible. To identify and control these
discharges at the point of generation would be extremely costly
with respect to both capital improvements and labor, with minimal
. environmental benefit. " ' .'
RESPONSE , , .
In the August 22,1995 Phase, IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and .air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, coriosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16, 1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
. apply to T
-------
DCN PH4P113 . ,
COMMENTERCMA
RESPONDER SS
SUBJECT EQUV
SUBJNUM 113 .'':.
COMMENT
C. The Phase III and Phase IV Rules Should Have A
Common Effective Date.
Significant confusion and disruption could result if
EPA imposes different effective dates for the Phase
HI and.Phase IV rules. At the outset, it must be noted
that the two rules are ostensibly part of the same
effort, to determine what regulations to impose on
decharacterized wastes placed in CWA surface
impoundments. Having the two rules as separate
proposals with separate but overlapping comment
periods is already creating difficulties for industry-
More importantly, however, serious problems could
result if the Phase III rule is promulgated and made
effective before the Phase IV rule is promulgated.
On the effective date of the Phase III rule, companies
will be forced to, decide whether to continue to place
. decharacterized wastes in CWA surface
impoundments, or to switch to other forms of
management (such as tank-based systems). In many
cases, because of the new requirement to meet UTS
at the point of discharge for constituents not
addressed in the NPDES permit, significant capital
expenditures may be required in order to continue
operating the surface impoundments. Additional
treatment steps may have to be added, either in the
impoundments or before them. In other cases,
NPDES permits may be amended to add'additional
: constituents, often requiring additional treatment
steps as well. However, companies taking these
expensive steps may discover later that the
regulatory option ultimately chosen under Phase IV
for cross media contamination makes such treatment
/ or permit limits impracticable or too costly.
Furthermore, the particular combination of Phase IV
requirements EPA chooses (if any) could determine
the most cost-effective way to modify a CWA
system to meet the Phase III requirements at the
751
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point of compliance. 5 EPA is considering three
different options for Phase. IV. Companies cannot
adequately plan for compliance with Phase III
without a decision by the Agency on which option (if
any) will be chosen under Phase IV. In short,
staggered effective dates for Phases III and IV would
result in a tremendous waste of resources for '
companies, as well as significant confusion and
difficulty in compliance. . : , ''.
If, on the other hand, the Phase III and Phase IV
requirements are made effective simultaneously,
companies will be able to make an informed decision
about whether to retain CWA surface
impoundments, and whether and how to modify
them to comply with the new requirements. *
D. EPA Has Authority Under RCRA To Delay The
Effective Dates For Phases III And IV.
Subject to court-approved schedules for developing
the LDR and HWIR rules (which can, of course, be
changed with leave of court)6 EPA has ample
authority to delay the effective dates of Phases III
and IV in order to prevent the confusion and
disruptions described above.
First, the Phase III and IV rules are not new
treatment standards or prohibitions subject to the
immediate effective date provisions of RCRA §
3004(h). Section 3004(h) provides that 5 If EPA ,
chooses Option 3, essentially all of the affected
surface impoundments will have to be replaced with
tank-based systems, because UTS will have to be
met before wastes can be placed in the
impoundments. If EPA makes that choice, any
changes made within surface impoundments to allow
UTS to be met at the CWA point of compliance
would be wasted.
6. In most cases, court-established schedules merely
set the date for a final rule to be promulgated,
leaving the effective date up to the Agency's -
discretion.
Prohibitions from land disposal shall become
effective immediately upon promulgation, and §
3004(m)(2) provides that treatment standards are to
become effective "on the same date" as the
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corresponding prohibition. In the case of the wastes
addressed in Phase III and IV, EPA-has already.
promulgated the prohibition, in the Third-third rule.
40C.F.R. § 268.33. Furthermore, EPA has:already
promulgated.currently applicable treatment standards
.applicable to these wastes. 40 C.F.R. §§ 268.41-43.
EPA has stated clearly that treatment standards are
currently in place for these wastes, and that the .
Phase HI and IV rules will merely amend these
standards. 58 Fed. Reg. 29,863 (May 24,1993).
Accordingly, it is not possible for the Phase III and
IV regulations to become effective on the same date
as the prohibitions to which they will correspond,
because those prohibitions occurred in the past. The
statute does not say that amendments to treatment
standards must be effective immediately, and there is
no reason that they should be.7
Furthermore, the Phase IV rules, if Option 2 is
chosen, wpuld not be subject to the LDR timing
requirements in § 3004 at all, because they would
not be LDR rules, as explained above. RCRA § §
3004(h) and (iri) refer to "prohibitions" and
."treatment standards." The requirements that are
contemplated in Option 2 of the Phase IV proposed .
rule are neither one. The proposed requirements,
addressing air emissions, sludges, and leaks from
CWA wastewater surface impoundments, are not
prohibitions from land disposal under §§ 3004(d)
through (g), or treatment standards pursuant to §
3004(m). If there is any authority iri RCRA for such
requirements it does not come from the LDR
provisions.8 .
As noted above, EPA has sufficient authority and
discretion to delay the effective dates of Phase III
and IV as appropriate to avoid confusion and
disruption. However, it should be added that EPA
also has authority to grant National Capacity
Variances under § 3004(h)(2) for the Phase III and
IV LDR rules if necessary .9 ' .
7 Clearly, the statute required prohibitions to be
effective immediately because Congress set stringent
deadlines for promulgating prohibitions. RCRA
sections 3004(d)-(g). Treatment standards were to be
753
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set on the same date so there would be no gap
between prohibitions and the corresponding
treatment standards. Here there will be no gap if the
amended treatment standards are not effective'
immediately, because there are already prohibitions
and treatment standards in place.
8 If EPA believes that authority exists for the Option
2 requirements in some part of RCRA other than the
LDR provisions, one remaining issue would be ' ,
whether RCRA § 3010(b) would require the -
regulations to be effective within six months of final
promulgation of the rule. EPA has determined that it
has the discretion to stay the effective date of RCRA
rules where necessary (as with the Subpart CC rule,
see 60 F.R. 50426 (Sept. 29,1995)). If such a stay is
not an option, however, EPA should delay final
promulgation of the Phase IV nile until a common
effective date can be set for the four rules.
9 Indeed, CMA believes that EPA has discretion to
establish longer variances than provided for in
section 3004(h). That section provides for variances
from land disposal prohibitions, including two years
for lack of capacity, and the possibility of two
additional years on a case-by-case basis. RCRA
Section 3004(m)(2) provides that treatment
standards are to become effective on the same date
as the relevant prohibitions. EPA should recognize
that these limitations do. not apply to the
contemplated Phase IV requirements.
First of all, as noted above, Phase IV requirements
would not be "treatment standards" under Section ,
3004(m), and thus would not be subject to the
Section 3004(h) limits. Second, even if the Phase IV
rules could be construed to be treatment standards, a
prohibition from land disposal for the hazardous
wastes covered by the rule is already in place, as are
treatment standards: If Phase IV requirements are
promulgated, they will at most modify those
preexisting treatment standards. Nothing in the
statute says that modifications to treatment standards
must become effective immediately, or that they are
subject to the limited variance periods set out in
754
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Section 3004(h). indeed, it would be logically
impossible for modifications to treatment standards
to be promulgated at the same .time as the
corresponding prohibitions. Furthermore, because
, such modifications are not subject to any
' » . . Congressionally mandated schedule, it is not .
reasonable to impose the same limitations on
variances for such modifications. Instead, EPA -
should determine that it has the discretion to grant
different and longer variances with respect to
treatment standard modifications where appropriate.
RESPONSE .
In the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that '
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments hi systems
regulated by the Glean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability,
corrosivity, reactivity,.or toxicity when generated but are no longer characteristic). On March
16, 1996, the President signed the Land Disposal Program Flexibility Act of 1996, which
provides that the wastes hi question are no longer prohibited from land disposal once rendered
nonhazardous. As a result, on April 8, 1996, EPA withdrew its treatment standards for these
wastes (61 FR 15660). Today's Phase IV final rule will not promulgate provisions for
managing leaks, sludges, and air emissions from surface impoundments (EPA proposed
.options on August 22, 1995 (60 FR 43655-43677)). Furthermore, the treatment standards for
TC metal wastes in today's rule do not apply to TC metal wastes if the characteristic is
removed and the wastes are subsequently treated in a unit that is regulated by the Clean Water
Act or, for underground injection wells, the Safe Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine,any potential risks posed by cross-media transfer of hazardous constituents from
these surface impoundments. The findings of this study, begun by the Agency in April, 1996,
may result in proposed regulations for these units, if risks are in fact found that would warrant
such regulation. .
755
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DCN PH4P113 - ,
COMMENTER Chemical Manufacturers Assn. .
RESPONDER PMC '
SUBJECT . EQUV' . ' -
SUBJNUM 113 ' ,
COMMENT , ' ;. /
The Chemical Manufacturers Association (CMA) appreciates the
opportunity to comment to the United States Environmental Protection
Agency (EPA or the Agency) on its proposed Phase IV land disposal
. - restrictions (LDR) rule. 60 Fed. Reg. 43,654 (to be codified at 40
CFR Partsl48,268, and 271) (proposed Aug. 22 1995). In its
proposal, EPA is discussing whether to establish additional
disposal practices for the management of formerly characteristic
wastes in surface impoundments that are part of a wastewater
treatment facility whose discharge is regulated by the Clean Water
Act (CWA). The Agency's proposal comes in the aftermath of the D.C.
Circuit Court of Appeals decision, Chemical Waste Management
v. EPA, 976 F.2d 2 (D.C.Cir. 1992), cert, denied, 113 S. Ct. 1961 .
(1992). As we demonstrate in these comments, we do not see anything
in the court's decision that requires EPA to change its position
on allowing treatment of decharacterized wastewater in centralized
wastewater treatment systems. We also concur with the Agency's ,
statements that these practices present little or no risk to human
health and the environment, and we demonstrate that the risks the
Agency believes may exist, are overstated.
Incidental to the manufacture of chemicals, GMA member companies
generate and, after decharacterization, manage formerly
characteristic hazardous wastes in centralized wastewater treatment
systems that comply with the Clean Water Act The chemical
industry's installation of these systems is based on long-standing
, . Agency policy that has legitimized such practices. Radical changes
in the Agency's land disposal restrictions rules could invalidate
many existing wastewater treatment systems, and seriously'disrupt
mandated Clean Water Act upgrades, deepwell injection, and
pollution prevention efforts all without commensurate
environmental benefit.
In its Phase IV proposal EPA has asked for comments on three
proposed options and how the chosen option might need to be
modified. Generally, CMA urges EPA to promulgate rules' w ith the
greatest degree of flexibility possible, given the low risks
presented by the waste management practices addressed in the rules
and the significant costs that could be imposed on industry
by unnecessarily rigid regulations. Specifically, CMA strongly
756
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supports the Agency selecting Option 1. EPA's statements and
findings regarding the risks posed by such management practices
clearly show that this Option is protective of human health and the
environment. CMA's comments demonstrate how Option 1 is legally,
practically, and environmentally supportable.
CMA believes that Options 2 and 3 are neither lawful under RCRA,
nor are they supportable from a policy basis given the low risks
posed by decharacterized wastes in CWA surface impoundments. If,
however, the Agency decides to choose Option 2, CMA's comments
offer suggestions relating to clarifications and modifications -
which must be made prior to promulgation.
As we demonstrate in these comments, we do not see anything in the . <
court decision's relating to the land disposal restrictions that
requires EPA to change its position on allowing treatment / >
of decharacterized wastewater in centralized wastewater treatment
systems that are regulated under subtitle D of the Solid Waste
Disposal Act and the Clean Water Act. In addition, we concur
with the Agency's statements that these practices present little or
no risk to human health and the environment, and what risk the
Agency, believes may exist, is overstated. Thus, we urge The Agency
to adopt the first option that it has proposed in the rule.
CMA has previously commented on virtually, all aspects of the LDR
program. CMA's Underground Injection Control Management Task Group
is filing separate comments on Phase IV issues that affect
injection wells. ,
In its Phase IV proposal EPA has asked for comments on three
proposed options and how the chosen option might need to be
modified. Generally, CMA urges EPA to promulgate rules with the
greatest degree of flexibility possible, given the low risks
presented by the waste management practices addressed in the rules,
and the significant costs that could be imposed on industry
by unnecessarily rigid regulations. -'
Specifically, CMA strongly supports the Agency selecting Option 1,
which would rely on the phase III controls to address
decharacterized wastes in surface impoundments. CMA believes.
that Options 2, and 3 are neither lawful under RCRA, nor are they
supportable from a policy basis given the low risks posed by
decharacterized wastes in CWA surface impoundments.
Indeed, EPA has already recognized the low risks of ' .
decharacterized wastes. EPA's Third-third rule would have deferred
.entirely to CWA treatment for decharacterized wastes, on the
grounds that further treatment of those wastes was not required as
a policy matter. In EPA's. Phase HI PROPOSAL EPA pointedly noted
757
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.that the practices it was addressing presented little or no risk
to human health and the environment and, but for the court's
decision, need not be addressed at this time. 60 Fed. Reg. 11,704/2
(March 2,1995). EPA has continued to state its opinion that
Further Regulation of CWA surface impoundments is not-necessary. On
July 20,1995, Michael Shapiro, Director of EPA's Office of Solid
Waste, testified before the House Subcommittee on Commerce, Trade
and Hazardous Materials, in connection with a bill proposed by
Rep, Oxley that would, among other things, reinstate much of EPA's
Third-third Regulation. Mr. Shapiro pointed but that the risks
addressed by the resulting Phase III rule [and thus those
addressed by the Phase IV rule as well] "are small relative to the
risks presented by other environmental conditions or situations;
nevertheless, the Agency is required to set treatment standards
for these relatively low risk wastes ,
and disposal practices/' Shapiro,Testimony at 13,14. Published ',
reports have stated that Mr. Shapiro stated that he would not' ^
oppose the section of the Oxley bill that would reverse the
Chem Waste decision as to wastes managed in CWA systems or UIC
injection wells. Pesticide & Toxic Chemical News, July 26,1995, at
13.
EPA's statements and findings regarding the risks posed by such .
management practices, clearly show that, as a general policy
matter, EPA should choose Option 1, which would rely on the phase
III standards, that can be met at or prior to the point of
discharge, to constitute treatment equivalent to RCRA's LDR
requirements. CMA's comments below will demonstrate how that choice
is legally supportable, even required, and why it is practically ,
and environmentally supportable as well. .
In the Third-Third regulation, EPA integrated RCRA with the CWA by
providing that certain characteristic wastes could be aggregated,
decharacterized, and then placed in CWA SURFACE impoundments,
without the imposition of further RCRA requirements. EPA's,
integration was rejected in the Chem Waste decision. In that
decision, the D.C. Circuit Court of Appeals announced a new
"accommodation" that it said was "required" by RCRA § 1006. As we .
noted in our Phase III comments, we believe that the Agency has
already proposed implementation of that accommodation in the Phase
III rule, and nothing more is needed. See CMA Supplemental Comments
on EPA's Phase III rules, July 21,1995; pp. l-10.We also do not
believe that the Court's accommodation authorizes the options that
the Agency has proposed as Options 2 or 3.
But perhaps more importantly., we do not believe that these other
758
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.options are needed to protect human health and 'the environment
either/As EPA noted in its Phase III proposal:
First, the risks addressed by this rule ... are very small
relative to the risks presented by other environmental conditions
or situations. In a time of limited resources, common sense
dictates that we deal with higher risk activities first, a
principle on which EPA," and members of the regulated community, and
the public can agree. -. . . '
Nevertheless, the Agency is required to set treatment standards.
for these relatively low risk wastes and disposal practices during
the next two years, although there are other actions and projects
with which the Agency could provide greater protection of human'
health and the environment. 60 Fed Reg. 11,704/2 (March 2,1995).
As we will demonstrate in these comments, even those low risks are
overstated, and EPA does not have any basis for establishing
technical standards or additional disposal regulations
for decharacterized wastes that are placed into jand-based
treatment units as part of CWA treatment systems.
.IV. EPA Should Select Option 1 In the Phase IV Rulemaking
A. EPA Is Required To Select Option 1 v
CMA believes that RCRA and the Chem Waste decision require EPA to
select Option 1 .As we explain below: the court's decision requires
Option 1 as the required accommodation of the LDRs with the Clean
Water Act; the court's holdings on equivalency of treatment do
not authorize any further regulations; and EPA lacks jurisdiction
under RCRA to impose technical requirements on Subtitle D units
managing non-hazardous wastes.
2. The Agency's Newest Theory Regarding Permanent Disposal and
Equivalency of Treatment Does Not Support Additional Disposal
Requirements ' ' . ' * '
In our Supplemental Phase III comments, we noted that EPA's
proposal, for the Phase IV RULE is based on a tenuous theory that
the Chem Waste decision may require additional disposal practices,
in the form of technical standards on land based units, to ensure
that Decharacterized Wastes managed in CWA systems are treated in a
manner that is equivalent to Decharacterized Wastes in non-CWA
systems. See Attachment B: CMA's Supplemental Third-Third
Comments, pp. 1-10. In the.Phase IV proposal, the Agency offers a
new theory for expanding its Subtitle C authority to non-hazardous
waste management units, The Agency now believes that the
Court decision requires it to inquire whether "such treatment in
surface impoundments results incross-media releases, via leakage,
air emissions, or disposal of untreated sludges, [1 can be .
759
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so excessive that the impoundment effectively functions as a
disposal unit." 60 Fed. Reg. 43,555/2.Thus, the Agency's
"preferred" reading of the opinion is to "establish the parameters
which distinguish permanent land disposal impoundments from those
performing the type of treatment to be accommodated under the
court's opinion." 50 Fed. Reg. 48,657/2.
In this section, we will reiterate why the requirement of
"equivalent treatment" is not sufficient to justify additional
regulations and why the new theory of "permanent land -'.'
disposaTdoes not extend the Agency's authority to non-hazardous
waste management units.
In our previous comments we addressed EPA's theory'regarding
whether the courtV'equivalency of treatment'! requirement could '
allow the Agency to require additional disposal requirements on '
non-hazardous surface impoundments. See Attachment B: CMA
Supplemental Phase III comments, pp. 1 -10. Before addressing EPA's
newest theory on "thwarting cross-media transfers" due to
"permanent land disposal," we want to reiterate our confusion
over why the Agency is trying to stretch its Subtitle C authority .
over non-hazardous waste units, while also lamenting that these
units present a low risk that should not be dealt with at this
time. See 60Fed. Reg. 11,704/2; 60 Fed. Reg. 43,656/2.
EPA relies on miscellaneous passages spread throughout the Chem ;
Waste decision to support its new theory that the Court's holding
regarding "equivalency of treatment" authorizes an expansion of the
Agency's Subtitle C regulatory authority to non-hazardous waste
management units. While the court discusses the need to treat
characteristic wastes to comply with the land disposal treatment
standards, nowhere does the court express the desire to thwart
"cross-media transfers." See 60 Fed. Reg. 43,656/3. In addition,
the Court's discussion which distinguishes between "permanent" and
"temporary" land disposal arises in a discussion which supports
Optionl.
In support of it new theory, the Agency first cites to page 22 of
the court's opinion. We note that the only holding on that page is
as follows:
Thus, we hold that, whenever wastes are put in CWA surface
impoundments before they have been treated pursuant to RCRA to
reduce the toxicity of all hazardous constituents, these wastes
must be so treated before exiting the CWA treatment facilities. In
other words, CWA facilities must remove the characteristic and ;
decrease the toxicity of the waste's hazardous constituents to the
same degree that treatment outside a CWA system would. Chem Waste
760
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.at 22.(Court's emphasis).' . .
This is hardly a ringing statement mandating that EPA "thwart
cross-media transfers." Instead this holding merely states the key,
narrow holding of the case: that prohibited
characteristically hazardous waste must be treated to LDR levels by
the time they leave the non-hazardous waste impoundment.
Perhaps the Agency's citation is referring to a passage, that is
merely explanatory and not the basis of this holding, that '
"dilution .does not prevent any of the metals from entering
the environment." Id. at 22. This statement by the Court arises as
the predicate to the court explaining the difference between NRDC's
concerns and EPA's response. The Court, after including this
> statement in its issue statement, went on to explain in the next
paragraph that The Agency's current "deactivation" treatment
standard was not sufficient to meet the LDR treatment standard even
though the waste was no longer hazardous. The court stated:
"The EPA's rejoinder, that because the wastes being placed in the ,
surface impoundment are no longer "hazardous" they need not be
treated, is exactly the argument industry petitioners previously
made [regarding point of generation] and EPA rejected. RCRA
attaches to "hazardous wastes" that are destined for land disposal
facilities and the statute requires complete treatment. Id. at
22-23. - " . ' , '
Thus, the court's resolution of the issue is not a mandate to
"thwart inter-media transfers." Rather it is a part of the holding
that all prohibited wastes must receive the same degree of
treatment even if they are decharacterized first.
This part of the court's decision actually demonstrates that the
Ghem Waste court was NOT. concerned about thwarting inter-media
, transfers. Instead, it specifically recognizes that decharacterized
wastes would be treated in surface impoundments that did not
comply with equivalent RCRA requirements: double liners and
leachate collection requirements. In the very next paragraph, the
Court explained that decharacterized wastes could be managed
differently. The court noted that Congress allowed treatment in
surface impoundments of hazardous wastes that did not meet the LDR
treatment standards if the surface impoundment met certain
conditions, including MTR's. RCRA § 3005(j)(l ). However, the court
noted that in the case of decharacterized wastes, the treating
impoundment did not need to meet these equivalent standards. The
court said:
Here, however, the liquids, at the time, they are placed in the ,
surface impoundments, are not technically hazardous wastes :..:
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Additionally, the liquids here,are only placed in the
^surface impoundments temporarily; in API, thex "land treatment"
represented the final resting place of the Hazardous waste. Id. at
24. ' '' , ' ' ' ' - ' . . -
Thus the court recognized that the these subtitle D units would
not provide the equivalent protections as wastes treated in
hazardous waste impoundments. The court's reference to permanence,
is merely to distinguish CWA treatment impoundments from permanent
disposal units, such as landfills (or land treatment as in API).
If the court was concerned about cross-media transfers, it would
not have allowed.these decharacterized wastes to be placed
into arguably less protective units, instead, the court was merely
noting that landfills and land treatment units are intended for the
permanent disposal of wastes, whereas surface impoundments that are
part of CWA systems are intended for the treatment of such wastes
on their way to the CWA point of compliance. .
Finally, the Agency cites to two additional instances in the v '
opinion where the court specifically addressed the issue of
releases into the environment In the first instance where the
court remanded the Agency's "deactivation" standard for corrosive
wastes, the court merely stated that the Agency need not change ,
this standard if it could make a statement, backed by evidence,
that deactivated corrosive wastes "do not contain hazardous ,,
constituents that pose a threat to human health and the
environment. Id. at 18 (emphasis added). A recounting of RCRA's .
general standard should hardly qualify as a mandate for EPA
expanding its Subtitle C authority to non-hazardous waste surface.
impoundments.
The second reference deals with reactive wastes. In this section,
the Court remanded the deactivation standard for reactive wastes,
even though no one produced any evidence that these wastes
contained hazardous constituents that were not addressed by the
deactivation standard(except for reactive sulfides and cyanides
which EPA addressed by promulgating a treatment method). The court,
however, granted the petition to review, on "narrow grounds" for
the purpose of the Agency "mandating] preliminary steps to prevent
such reactions" and not for the analogous situation of prescribing
controls during treatment. " . .
Consequently nothing in the Chem Waste case supports the Agency's
newest theory for establishing additional controls on
decharacterized wastes that are managed in non-hazardous surface
impoundments, m fact, as we demonstrate hi the next sections, the
Agency is precluded from establishing such requirements.
762
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.Accordingly, EPA is limited by both its Subtitle C jurisdiction
..and by its obligation to accommodate CWA requirements to choose
Option 1 and thus refrain from- imposing technical requirements on
Subtitle D units.
, 4. EPA Is Free To Select Option 1 Under Chem Waste
Even if EPA were to reject the arguments above that the Chem Waste
decision and RCRA require EPA to choose Option 1 in'the Phase IV
rulemaking, it is quite clear that there is nothing in the court's
decision thakprevents EPA from selecting Option 1.' In the court's'.
discussion of CWA systems, there is not a single mention of sludge,
leaks, air emissions, or any other movement of hazardous - -
constituents to the environment other than what exits the CWA
T
system at its point of discharge, even though the court was fully
aware that CWA impoundments are typically unlined. Chem Waste, 976
F.2d. at 20. If the court had intended that Subtitle C impose any
such requirements on surface impoundments that manage nonhazardous
waste, it surely would have discussed how this decision was either
consistent with, orxdeviated from prior precedent.
As noted above, the Chem Waste court sanctioned the Option 1 .
approach by making it clear that EPA could meet its obligations
"under RCRA § 3004(m) by requiring that the §30W(m) standard must
be met at the CWA system point of discharge not in the
impoundment. As we explained in our Phase 11 comments, the CWA
' permit or pretreatment requirements, which require at the least,
application of the best practicable control technology
currently available (CWA § 301 (b)), clearly meet that standard. See
Attachment A: CMA Comments on Phase III, pp. 12 -16.
The court's litmus test for equivalency is that treatment must
meet the requirements of the statute. The. court held that: "the new
CWA dilution permission is valid where the waste is decharacterized
prior to placement in a CWA surface impoundment and subsequently "
treated in full conformity with § 3004(m)(l) standards." Chem
Waste, 976 F.2d at 19. The end-of-pipe standards proposed in Phase
III fully satisfy that standard, and EPA should go no further.
EPA, however, is considering the argument that the Chem Waste , -
opinion would support a decision by EPA to establish performance
standards for surface impoundments that manage nonhazardous wastes
so that mass loadings of hazardous constituents to the environment
(other than through the CWA outfall) are reduced. CMA does not
agree that the court's opinion reaches so far. There is absolutely
no discussion of this point in the court's decision, and it
requires an anguished stretching of the court's language to find
statements that even arguably would support such regulations.
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EPA cites a footnote in Chem Waste; 976 F.2d at 23 n.8, to support^
the'argument that EPA can impose regulations on the operation of
surface impoundments managing nonhazardous wastes. 60 Fed. Reg.
43,656.2 The Agency has asserted that the footnote illustrates the '
court's fundamental concern that dilution does not reduce or
destroy hazardous constituents, and therefore does not prevent them
from entering the environment. The Agency then attempts
to extrapolate from this a concern on the court's part about "mass
loadings" and possible releases through air emissions, leaks, and
sludges. .'..''
However, the footnote merely points out that a unit treating
, diluted waste will have to treat a larger volume td remove the same
amount of a hazardous constituent than will a unit'treating
concentrated wastes. The footnote does not use the term "mass
loadings" and certainly does not refer to any "loading" to the
environment other than at the CWA discharge point.
, EPA can point to only a few other statements in the opinion to
support an argument that the court authorized requirements more
extensive than the Phase III end-of-pipe standards. EPA REFERS to
other portions of the opinion that discuss volatilization and '
dilution of characteristic wastes, 60 Fed. Reg: 43,656 (citing Chem
Waste, 976 F.2d at 17,1-8,22,24,29-30), but these portions did
not involve the issue of placement of decharacterized wastes in
CWA surface impoundments, and thus did not involve accommodation
with the CWA; EPA also points to statements by the court that
placement hi CWA surface impoundments is "temporary" and v
not permanent disposal, and thus argues that it can impose
requirements to control any aspects of CWA surface impoundment
management that might constitute "permanent" disposal, such as
ah* emissions or leaks. 60 Fed. Reg. 43,656 (citing Chem Waste,
976 F.2d at 24,95). As EPA implicitly notes in the permeable, this
argument turns the court's opinion on its head. 60 Fed.Reg.
43,657/2. The court's statement that placement in a CWA surface
impoundment is temporary is more, reasonably interpreted as
recognition by the court that some leaks and air emissions are
,possible from an unlined impoundment (see Chem Waste, 976 F.2d at
20), but that this is acceptable because of the need to accommodate
the CWA, The court intended that the compliance of the CWA
impoundments be controlled not by management standards, but
by end-of-pipe compliance with.treatment standards. .
2 The footnote reads, hi its entirety, as follows: .
To illustrate RCRA's focus on treatment of the hazardous
764
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constituents in a waste, consider a waste stream hazardous by .
characteristic for cadmium. Both the characteristic and,
.treatment levels for the hazardous waste are 1.0 mg/1. Assume,that
a stream of 3.0 mg/1 daily deposits lOOOIiters into a treatment
facility. A RCRA.treatmerit facility would remove at least 2000 mg
of cadmium from the waste stream. A CWA treatment facility must do
the same although to do so it will have to process at least three
times as much water (because dilution of 1000 liters of 3.0mg/l to
just below the characteristic level will yield just over 3000
liters). Allowing dilution alone would decharacterize the waste,
but it would not reduce the total amount of cadmium entering
the environment. One thousand liters of 3.0 mg/1 cadmium yields the
same amount of hazardous constituent as 3000 liters of 1.0 mg/1
cadmium. , ' '
Accordingly, nothing in RCRA or in the Chem Waste decision
precludes EPA from selecting Option 1 in the Phase IV rule, and for .
the reasons set out below, EPA should do so.
* '
C. Other Statutes And Regulations Provide Adequately Regulate the
Surface Impoundments In question So That Human Health And The
Environment Is Protected. '
There are numerous statutes and regulations that govern the
protectiveness of the surface impoundments at issue in the Phase IV ,
rule. EPA should not disturb the statutory scheme established by
Congress to protect human health and the environment by imposing
additional requirements on these surface impoundments.
1. The Imposition of Air Emissions Requirements In The Phase IV
Rule Is Unjustified.,
There is little reason for EPA to regulate, under the LDR program, >
air emissions from CWA surface impoundments. With respect to the
potential air emissions that would be addressed under Option 2 of
the Phase IV rule, there are already in place numerous
requirements that limit air emissions from CWA surface
impoundments, and others are in development.
In order to maintain, to the greatest extent possible, a
consistent approach to air pollution control, air emissions should
be regulated under the Clean Air Act (CAA), not under
RCRA. Therefore, CMA urges EPA to (iefer to preexisting and
scheduled requirements under the Clean Air Act, and refrain from
creating further duplicative and overlapping air emission
requirements under the aegis of RCRA. CMA thus believes that no air
emissions requirements should be imposed under Phase IV, because
765
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such requirements are unnecessary to minimize threats to human
health and the environment from CWA surface impoundments. / .
In the CAA, Congress has established a comprehensive scheme for
regulating air emissions that represents a delicate balance between
protecting human health and the environment using a best technology
approach, risk assessment, and rule scheduling that ameliorates
some of the economic impact resulting form the new requirements.
Emissions of hazardous air pollutants (that equate to the toxic
constituents EPA is concerned within the Phase IV rule) are subject
to extensive regulation under Section 112 of the Clean Air Act.
While not all of the RCRA hazardous constituents are HAPs, the
list of HAPs is extensive enough and represents Congress' decision
that control of these constituents are all that is necessary to
protect human health and the environment.
Section 112 requires EPA to promulgate emission standards for
industrial source categories with respect to nearly two hundred
hazardous air pollutants (HAPs), establishing Maximum Achievable
Control Technology ("MACT") for such categories. Many
facilities operated by CMA members are already covered by the HON
("Hazardous Organic National Emission Standards for Hazardous Air
Pollutants") regulation, promulgated on April 22,1994 (59Fed.
Reg. 19,402) or by the Benzene NESHAP, promulgated on January 17,
1993. MACT standards for other industrial source categories will be
promulgated by EPA according to a statutorily-imposed schedule,
which represents Congressional balancing regarding how the
nation should absorb the costs of such additional regulation. These
rules will cover some 70 additional chemical production or
manufacturing source categories and the off-site waste and
recovery operations category. 59 Fed. Reg. 51,913 (Oct. 13,1994).
These regulations, taken together, place stringent controls on the
emissions of hazardous air pollutants from the '
manufacturing industry in an orderly process that is
Congressionally mandated. Additional MACT standards will address
treatment of generated wastewaters to control hazardous air F,
pollutant emissions. Since regulations cover all major sources of
hazardous air pollutants within a relevant source category and
there is simply no justification for imposing duplicative
requirements under RCRA. /
Congress also required EPA to review residual risk as part of the
overall program to control HAP emissions under the CAA. The results
of this review may strengthen already promulgated MACT standards,
if necessary to further protect public health. The strengthening
of a MACT standard will likely result in tighter emissions limits
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for wastewater treatment units. Moreover, EPA is required to list,
and regulate, categories of area sources if they present a threat
of adverse effects to human health or the environment warranting
regulation. EPA is also required to review residual risk for these
area source categories. '< '
Furthermore, the provisions of the Clean Air Act governing
nonattainment areas (CAA§§ 171 -193) may also overlap with the
proposed RCRA air emissions requirements. Those requirements impose
limitations (including the use of Reasonably Available Control .
Technology, or "RACT") on emissions from existing major air
pollution sources in areas that have not attained established air
quality standards..For example, EPA has already released
Control Technique Guidelines establishing RACT for many industrial
operations, including the Synthetic Organic Chemical Manufacturing
Industry, EPA 450/3-84-015, December 1984, (Group III)NTIS No.
PB-85-164 #275. .
Finally, new or modified facilities may be subject to several
requirements under the CAA: For certain industries, EPA has
promulgated New Source Performance Standards under § 111 of the
Clean Air Act, imposing.specific requirements on.all new, modified
or reconstructed facilities within the industrial category. For
areas in compliance with air quality standards, §§ 160-169 of the
Clean Air Act, governing Prevention of Significant Deterioration,
require new or modified sources to install the Best Available
Control Technology ("BACT"); For nonattainment areas, §§ 171-193
require new and modified sources to apply technology that achieves
the Lowest Achievable Emissions Rate ("LAER").
Clearly, this comprehensive regulatory scheme is all that is
needed to control air emissions from nonhazardous waste surface
impoundments handling formerly characteristic wastes
It should also be noted that states may, and often do, impose air
regulations that are both broader in applicability and more
stringent than those required under the federal Clean Air Act. For
example, Texas, New York, and California all have such
requirements. ,"-...- .
The capital and manpower investments that a facility would have to
make to remain incompliance with simultaneous CAA and RCRA
regulations addressing similar air emissions from wastewater are
not justifiable. Some facilities are already, or will soon be,
subject to federal, state; and local regulations governing air
emissions. Thus, EPA should continue to address the control of air
emissions through CAA authority as opposed to generating
separate RCRA-authbrized regulations.3
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, 2. Leaks Detection Requirements Are Not Necessary.
There are already in place significant federal and state
regulations that either reduce the likelihood that CWA surface
impoundments will leak or that ensure leaks are detected
and addressed.
First, there are a number of other RCRA regulations that address
CWA impoundments managing non-hazardous wastes. At facilities that
are RCRA-permitted or interim status TSDFs, RCRA's corrective
action requirements apply to all SWMUs, including these CWA
surface impoundments. We estimate that at least 25% of the surface
impoundments EPA estimates will be impacted by this rule are in
fact, covered by RCRA's, corrective action provisions.
Many companies, including CMA members, are in fact pursuing
corrective action for such SWMUs. Furthermore, RCRA § 7003 allows
EPA to take action when management of any solid or hazardous waste
"may present an imminent and substantial endangerment to health or "
the environment." Clearly, this provision could be invoked to
prevent endangerment resulting from CWA impoundment leaks.
3 If EPA decides to impose air emission requirements under Phase
IV, CMA agrees that EPA SHOULD exempt from such requirements any
surface impoundments that are already addressed by relevant
requirements under other statutes or regulations. See
discussion below in Section VI A. Item #10 of these comments.,
Second, there is a strong incentive for all owners and operators
of surface impoundments to ensure that there is no leakage of
hazardous constituents, because of the risks of CERCL A liability
' and the tremendous costs (including natural resource damages) that /
can result. 42 U.S.C.§§ 9606,9607. CERCLA requires the reporting
of releases of hazardous constituents above specified reportable
quantities. 42 U.S.C. § 9603. In addition, leakage of hazardous
constituents can lead to major common law tort liability. See,
e.g., Davey Compressor Co. v. City of Defray Beach, 639 So.2d 595
(Fla. 1994); Eweli v. Petro Processors of Louisiana, inc., 364
So.2d 604(C.A. La. 1978). cert, denied 366 So.2d 575 (La. 1979).
Finally, as Congress intended, States are taking the lead in
regulating non-hazardous Waste Management units. For example,
states (such as California and Louisiana) have in place regulations
addressing Subtitle D disposal units that, in many cases, impose
requirements intended to limit leakage. Other states have other
regulations that would control leakage from such impoundments, such
as state NPDES permits that control releases to groundwater (as in
Texas).As revealed by studies performed by CMA, many states have
programs in place addressing leak prevention and detection, as they
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determine necessary. See Attachment D: Study of State industrial
Non-Hazardous Waste Regulatory Programs: 25 State Profiles. (April
1994); Study of state Subtitle D Regulatory Program Status
(September, 4, 1991).
Many states also have sole source aquifer or wellhead protection
programs under the Safe Drinking Water Act that protect
groundwater. State support for the exemption of
Decharacterized Wastes, as managed under the Clean Water Act
equivalent treatment systems, and injected into UIC Class I
nonhazardous injection wells under the Safe Drinking Water Act,
from meeting additional LDR requirements is demonstrated in letters
from the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO) and the Ground Water
Protection Council (GWPC) to congressional representatives.
3. Sludge Requirements Should Not Be Imposed In Phase IV.
CMA also believes that it is unnecessary for EPA to impose
additional regulations on sludges as part of the Phase IV rule.
Before sludges are removed from the impoundment, they do not pose a
risk any different from leaks, and are adequately addressed by
existing measures controlling leaks. -As EPA commented, "EPA does
not believe in-place sludges would be a release pathway separate
from the leaks pathway." 60 Fed. Reg. 43,673. Thus the management
of sludge should be governed by a determination, at the tune of
removal, of the controls appropriate to protect human health and
the environment 60 Fed. Reg. 43,673/3 -
Accordingly, EPA should not include sludge requirements in the .
Phase IV regulations. ,
D. The Chem Waste Decision Precludes EPA From Selecting Option 3
In The Phase IV Rulemaking , ' .
Under the Chem Waste decision, EPA is clearly not permitted to ,
select Option 3 in the final Phase IV rule, which would require
treatment of decharacterized wastes to UTS standards
before placement in a CWA surface impoundment. Option 3 would
eliminate any accommodation of the CWA in the LDR program, because
me CWA surface impoundments would be treated like any other
Subtitle D impoundments.
As noted above, the Chem Waste decision held that accommodation
with the CWA is required"to the maximum extent practicable." Chem
Waste, 976 F.2d at 20. The court also made it clear that placement
of decharacterized wastes in CWA surface impoundments prior to
satisfying UTS standards was acceptable, and a reasonable
accommodation with CWA. For EPA to choose an option under which
there was no accommodation with the CWA would violate RCRA § 1006 .
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and the court's decision.4
VI. If EPA Insists On Selecting Option 2 In The Phase IV
Rulemaking, Significant Clarifications And Modifications Are Needed .
As discussed previously in these comments, CMA believes EPA is
required by the Chem Waste decision to select Option 1, or at the
very least is hot precluded from choosing Option 1. However, if EPA
decides to select Option 2 in the Phase IV rulemaking, several
Clarifications And modifications must be made prior to
promulgation. Further, as noted above, the upcoming HW1R rule will
make significant changes in the Subtitle C program that would have
important implications for the Option 2 requirements. When this is
coupled with the fact that EPA has not proposed regulatory language
for Option 2, CMA believes that if EPA plans to choose Option
2,that it should repropose the requirements for further comment
after the HWIR rule is finalized.
Although CMA's ability to comment adequately is hampered by the
absence of proposed regulatory language, the following are specific
comments on the elements of Option 2. - . ,
A. EPA Must Modify The Applicability of Option 2
1. EPA Should Change Option 2 Applicability Shown In the Preamble
Figures. , . -
Attached to this document are two figures Figure A: EPA's Proposed
Applicability Criteria, and Figure B: CMA's Proposed Applicability
Criteria. (See Attachments E and F) The two figures are composites
of the Option 2 figures in the preamble (Section I.H.) ,
presenting general applicability (EPA Fig. 1), air emissions
management applicability (EPA Fig. 2), leak management
applicability (EPA Fig. 3) and sludge management applicability
(EPA Fig. 4). We will use these two figures to compare and contrast .
our suggestions with EPA's proposal. The item numbers associated
with these comments match those hi Figures A and B.
a) EPA should grant a general applicability exemption for Wet
Weather Flow Lmpoundments.(Item#l)
Many facilities utilize integrated sewer systems in which both
process wastewaters and storm waters are managed in the same
collection system. Wet weather flow impoundments are commonly used
in integrated sewer systems to temporarily store excess water
flows during storm events. Water diverted to these impoundments are
either transferred to the wastewater treatment system at controlled
rates or directly discharged through a permitted outfall to a
receiving waterbody or to a POTW.
CMA recommends that wet weather flow impoundments be exempted from
the LDR Phase IV regulations due to their low environmental risk,
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their importance to the efficient operation of wastewater
management systems, and the significant cost of replacing and/or
closing the impoundments.
Wet weather flow impoundments pose an inherently low environmental
risk since: \.
Underlying Hazardous Constituents (UHCs) in the wet weather flow
impoundment influent rarely exceed UTS and then only for very short
periods of time. Such exceedances may occur during the beginning of
a storm event when the proportion of process wastewater
to stormwater is at the greatest. Peak storm event flows will be
primarily stormwater, with the result that the flow-rated average .
concentration of UHCs in the impoundment influent during a storm
event will be significantly below the UTS levels.
Wet weather flow impoundments are generally.empty, so the
v residence time of any UHCs present in the impoundments is short.
This further reduces the potential for leakage to groundwater and
air emissions. This clearly classifies as the kind of temporary
containment that EPA believes the court determined could occur in
subtitle D units >
The use of wet weather flow impoundments is vital in the operation
of combined process wastewater/stormwater management systems since
temporary storage of the large amounts of water associated with a
storm event is essential in preventing exceedance of the system's
collection and/or treatment capacity. For example, a hydraulic. v
overload in a biological treatment system will reduce organic
removal efficiency and cause exceedance of total suspended solids
effluent limits.
Closing and replacing wet weather flow impoundments would be
prohibitively expensive. Impoundment closure would be extremely
expensive since at some facilities these impoundments cover more
than 25 acres. Removing the impoundments from service would
require the facility to do one or more of the following extremely
expensive steps: . '
Replace the impoundments with a vast stormwater storage tank
system to manage the large volume of storm/process water.
Significantly enlarge the capacity of the wastewater transfer
system downstream of the point where storm water is currently :,
diverted to the impoundments AND significantly enlarge '' .
the treatment system capacity to manage peak flows that will only
occur during storm events.
Segregate the process wastewater from stormwater which, in many
cases, would be prohibitively expensive due to the size and
location (under operating units) of sewer systems in ;
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well-established industrial complexes.
Therefore, EPA should grant a general applicability exemption for
wet weather Flow Impoundments.
d) Surface impoundments subject to RCRA corrective action
provisions should be exempt from all Phase IV management standards.
(Item #4)
CMA agrees with EPA that permitted TSDFs should be totally
exempted from Phase IV REQUIREMENTS since any of their subtitle D
impoundments are subject to corrective action. During the RCRA Part
B permitting process, all Subtitle D wastewater surface
impoundments receiving hazardous waste constituents are evaluated
to determine if they are causing unacceptable environmental impact .
via emissions to the air, runoff to surface waters, and seepage
into the soil and . ground water. Such evaluations determine if any ,
additional monitoring and/or corrective action is needed for the
impoundments on a case-by-case basis. These evaluations and
subsequent later activities, as needed, assures that the
impoundments are being operated in an environmentally acceptable
manner.
CMA also believes that TSDFs currently and previously under
interim status should be provided the same total exemption as
permitted TSDFs since the same amount of SWMU evaluations with
follow-up monitoring and/or corrective action, as needed, will be
conducted during the Part B permitting process or can be conducted
under § 3008(h). CMA does not believe it to be practical to force
interim status facilities to comply with Phase IV requirements if
the regulatory agency has the authority to evaluate the facility
and to request site-specific corrective '
action measures based on those evaluations and any further
monitoring.
Thus, CMA recommends that wastewater surface impoundments located
in all facilities covered by RCRA TSDF corrective action provisions
be automatically exempted from all Phase IV management standards.
e) EPA should clarify the MTR exemption requirements and not
require ground water monitoring.(Item #5)
The preamble states that the MTR exemption is applicable if the
"decharacterized Wastes Are discharged to a surface impoundment
that meets the substantive rmniiP"*" technology requirements of 40
CFR 268.4". 60 Fed. Reg. 43,669/1 (emphasis added).
CMA believes that the phrase "substantive minimum technology
requirements" should only refer to subsection (I) of § 268.4(a)(3).
Limiting the substantive MTR requirements to these would (1)
eliminate the need to conduct .ground water monitoring, which is
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one of the purposes of the exemption; and, (2) provide flexibility
. in the design and operation of the impoundment[221 (c), (d) or (e)]
while staying within the spirit of complying with MTR
requirements. \'
Thus, CMA recommends that EPA limit the "substantive minimum
technology requirements" to the design and operation of the
impoundments and not require ground water monitoring.
f) CMA agrees that surface impoundments that meet the no migration
standard should be Exempted. (Item #6)
CMA concurs that the "no migration" exemption should be a general
applicability exemption. To successfully demonstrate "no migration"
one must show that actual or predicted concentrations of hazardous
concentrations or emission rates at the edge of the land-based
unit do not exceed health-based or environmental-based levels for
ground water, surface water, soil and air. Thus, all emission
concerns are addressed for the wastewater surface impoundments '
that are eligible to obtain a "no migration" determination.
/ . '
g) EPA should adopt a "de minimis" exemption patterned after the
laboratory exclusion and provide optional limits on either flow or
concentration of UTS constituents. (Item #7) ' '
The Agency has proposed to extend "de minimis" provisions it
proposed in the Phase III rulemaking for UIC waste systems to GWA
systems. As we commented in our Phase III Comments, we support a de
minimis volume exclusion for CWA and CWAE systems. See Attachment
A: CMA Phase III Comments at pp. 32-33. We suggest that instead of
using the exclusion that they proposed for UIC wells, EPA should
model the CWA or CWAE exclusion after the current de minimis
exclusion for laboratory wastes. Id. , ,''.
We note that the flow limitation in EPA's proposal is consistent
with the laboratory waste exclusion provided under §
. 261.3(a)(2)(iv)(E). Likewise, limiting the concentration
of constituents in an excluded waste seems reasonable and
concentration limitation is also a provision of the § , .
261.3(a)(2)(iv)(E) exclusion although we disagree with the level
EPA is proposing and suggest 1 ppm instead.
However, CMA questions why the Agency has abandoned the ,
long-standing logic of the laboratory wastes exclusion under §
261.3(a)(2)(iv)(E) by proposing to require that an excluded waste
to meet both criteria to qualify as an excluded waste stream >' . .
instead of either criteria, as allowed in § 261.3. That logic,
unchallenged by the Court decision, continues to hold and should be
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.extended here. As long as the waste flow is small (i.e., less than
1 % of the total wastewater flow for all characteristic wastes), the
concentration of constituents in that small flow should not ,
matter as long as the resultant mixture does not exhibit a
characteristic of hazardous waste. Conversely, as long as the
concentration of constituents is small in the streams being
aggregated, the percentage of total flow they comprise should not
matter. The fact that a percentage or a concentration restriction
precludes any sizable waste streams from qualifying for the
exemption unless they pose little hazard provides the Agency with
adequate assurance that the provision cannot be abused by the
regulated community.
As we noted in our Phase III comments, some may question whether
the laboratory waste exclusion represents an analogous situation,
since laboratories usually generate small quantities of
listed wastes. We think that such an objection would be
irrelevant. At facilities that treat a large >
amount of wastewater the Agency's exclusion could allow a
laboratory to send large quantities of concentrated listed waste to
the treatment facility, without any restriction on the amount of
waste it can send in any one event Thus the Agency has already
determined that there are some situations where the quantities or
potential impact is so small that an exclusion is warranted
CMA urges EPA to adopt a similar exclusion for all characteristic
wastes. Please see our Phase III COMMENTS for proposed regulatory
language. . ." ' '" .
j) The CAA applicability exemption should embrace additional CAA
regulations. (Item #10). , .
CMA recommends that the applicability of the following groups of
air regulations be eligible for determining if the surface >
impoundments need to be covered by Phase IV air .emission management
standards; Applicable promulgated and proposed New Source
Performance Standards (NSPS) under 40CFR Part 60. One example is
the proposed NSPS for SOCMI Wastewaters (Subpart YYY).This
regulation will address the control of volatile organic compounds
(VOCs) which EPA believes "is an appropriate measure for
determining when potential releases through air emissions would be
excessive." 60 Fed. Reg. 43,665/1. Note: The preamble also states
that"EPA would defer to standards regulating total volatile
organics, as adequately covering air emissions of UHCs from this
type of treatment" 60 Fed. Reg. 43,660/2. We concur with EPA's
intent
Applicable promulgated and proposed National Emission Standards
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for Hazardous Air pollutants (NESHAPs) under 40 CFR Part 61. One
example is the NESHAP for Benzene Waste Operations (Subpart FF).
This regulation addresses the control of benzene emissions from
surface impoundments.
Applicable promulgated, proposed and future MACT regulations 10
required under CAA § 112 (40 CFR Part 63). These include all MACT
.regulations that have been listed pursuant to CAA § 112 and
subsequently scheduled according to CAA § 112(e). These
promulgated, proposed and near future regulations address the
control of hazardous air pollutant (HAP)emissions from wastewater .
streams. Examples include the promulgated SOCMI Hazardous Organic
NESHAPs (HON) which addresses the control of organic HAP emissions
from wastewater streams, the, proposed MACT regulations covering
off-site waste and recovery operations (Subpart DO), and future
MACT regulations covering publicly-owned wastewater treatment
facilities and site remediation. Note: The preamble states that
"facilities subject to CAA standards for hazardous air pollutants .
(in particular, those promulgated pursuant to CAA 112) in the near
future thus would not be covered by Option 2 air emission r
controls"(Id. at 43660/1).
Facilities which have already addressed the need for control of
secondary emissions as part of the CAA Title V program which
requires States to conduct case-by-case MACT determinations for
facility modifications, reconstructions and ne constructions for '
major sources if the applicable MACT regulation(s) have not been
established. (CAA §§112(g)and(j)).
10 Pursuant to CAA Section 112(e) EPA must promulgate MACT
standards for all source categories by the year 2000. The attached
list details the exorbitant number of MACT standards scheduled to
be promulgated by EPA between now and the year2000 and likely to
apply to the chemical industry (See Attachment G).
Facilities covered by Federally-approved State/Tribal programs ,
which address HAP emissions. (CAA § 112(1)) Such facilities will
need to comply with regulations that are essentially equivalent to
federal MACT standards developed by EPA. .
Facilities covered by Federally-approved State/Tribal
Implementation Plans (SIPs) that require control of VOC emissions
(CAA §182). Such facilities are required to use,Reasonably ' -,
Available Control Technology (RACT).
In sum, EPA should expand the air regulation exemption to include
facilities covered by(l) applicable promulgated and proposed NSPS;
(2) applicable promulgated and proposed NESHAPs (Part 61); (3)
775
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applicable promulgated, proposed and future MACT-based
regulations(Part 63); (4) Title V case-by-case MACT
determinations; (5) Federally-approved State HAP programs; and, (6)
Federally-approved SIP plans addressing VOCs.
k) There should be an exemption for hazardous constituents covered
by EPA Regional, State or tribal programs that specifically address ,
emissions of those constituents. (Item #11)
CMA concurs with the following statement in the preamble:
EPA Regional, State, or Tribal limits which control releases of
specific UHCs [regulated constituents] from impoundments also would
be considered controlling and so make Phase IV controls
unnecessary. 60 F.R.. 43661/1.
CMA recommends that EPA include an exemption for those regulated
hazardous constituents that are covered by EPA Regional, State or
Tribal programs that specifically address emissions of those
constituents.
1) Post-biological surface impoundments should be exempt from air
emissions management standards. (Item #12)
Those surface impoundments that are used to clarify or store
biologically treated wastewaters prior to discharge through a
NPDES-permitted outfall will have low levels of dissolved organics
in the water. For example, Commodity Organic Chemical facility
outfall wastewaters must have a maximum monthly average BOD5
concentration of no greater than SOppmw (40 CFR §§ 414.61 &
414.64). This effluent concentration translates to a Total
Organic Carbon (TOC) concentration in the order of ISO ppmw. Such a
level of TOC will likely have a VOC concentration below 100 ppmw
since the organics in the treated water will be refractory organics
which will have relatively low vapor pressures. Thus, mere is no
need for any form of air emission control for such impoundments
since the emission rate of VOCs would be inherently low.
CMA recommends EPA to provide an exemption from air emissions
management standards for post-biological surface impoundments that
store or clarify treated wastewaters prior to discharge through a
NPDES-permitted outfall.
m) EPA should clarify Subpart CC before, requiring surface
impoundments to comply with it(Item #13) .
The Subpart CC regulations have raised numerous comments from
industrial and waste treatment groups, such as CMA, that could
impact the applicability of these rules to surface impoundments
affected by Phase IV. The concerns are important enough to warrant
litigation by affected parties unless current negotiations generate
mutually agreeable modifications to the regulations.
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Establishing the VOC trigger level at 100 ppmw at the point of
generation. . . .
Eliminating those organic compounds that are not VOCs from waste
determinations: ,
Using the first potential exposure point as the point for waste
VOC determination .
A treatment alternative requiring 95% mass reduction and an exit
concentration of less thanSO ppmw (impacts applicability of
downstream impoundments). .
Lack of acknowledgment of the existence of non-hazardous wastes in
calculating organic removal requirements (impacts applicability of
downstream impoundments).
The need to consider treatment time when conducting compliance
sampling (impacts applicability of downstream impoundments).
We also note that EPA issued a Federal Register notice on August
14,1995,60 Fed. Reg.41,870, which addressed what analytical
methods and procedures may be used to determine the VOC of a given
waste stream. Until this issue is resolved, no facility will be. .
certain as to what analytical methods and procedures will be
available to them to .determine if the extended Subpart CC
regulations are applicable for a given impoundment
CMA does not believe that it is prudent to require facilities to
comply with significant requirements that may well prove to be
unnecessary when the regulations are truly clarified. CMA
recommends that EPA place the questions governing whether
wastewater surface impoundments comply with Subpart CC regulations
on hold until all pending regulatory changes to the Subpart CC
regulations are completed. -- \ - .
n) EPA should exempt surface impoundments from ground water
monitoring and corrective action if a State or Tribal program has
determined it is not necessary. (Item #14)
CMA believes that a facility should be relieved from ground water
monitoring and/or corrective action requirements if a State or
Tribal program has already determined that such is not required for
a given surface impoundment. Such State or Tribal programs will
have already determined that various factors (impoundment
construction, local geology, local ground water usage, etc.) are
such that the surface impoundment is inherently safe and does not
warrant monitoring and/or corrective action. It would appear to be
a waste of time, manpower and capital to require the facility
operator to perform such activities in the name of Phase IV .
compliance.
Therefore, EPA should provide an exemption from the ground water
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monitoring and/or corrective action requirements if a State or
Tribal program has determined that such is not required for the
given wastewater surface impoundment. '."'""'
o) EPA should exempt certain constituents from ground water
monitoring and corrective action if they are covered by a State or ' ,. .
Tribal ground water protection program that is substantially
similar to the EPA program. (Item 15)
CMA concurs with the following statement in the preamble:
Many states have ground water protection programs that include
ground water monitoring and corrective action that may apply to the
types of units that EPA is covering in today's proposal. To the
extent that state programs require ground water monitoring and
corrective action that include the UTS constituents of concern (or ,
can be modified to cover those constituents) and are substantially
similar to today's proposal (i.e., frequency of monitoring,
requirements regarding ground water monitoring wells), EPA would
defer to those State and Tribal Programs. 160 Fed.Reg. 43,669/3]
EPA should, therefore, include an exemption from the leak .
management standards for those regulated constituents that are
covered by a.Stateor Tribal ground water protection program
that is substantially similar to the EPA program. /
p) EPA should exempt surface impoundments from ground water .
monitoring and corrective action if the facility has an existing
voluntary program that is substantially similar to the EPA .
program. (Item#16) _ - ,
CMA concurs with the following statement in the preamble:
Further, facilities affected by today's rulemaking that have
existing ground water monitoring and corrective action programs
that are not required by State or federal government may be able
to continue those programs in lieu of the regulations proposed
here. (60 Fed. Reg. 43,669/3)
EPA should allow those facilities that have existing,voluntary
ground water monitoring and corrective action programs that are ..
substantially similar to the EPA program to be exempted from the
leak management standards. x '-
q) EPA should reaffirm that sludges removed from Subtitle D
surface impoundments are not subject to LDR unless they are . . '
hazardous. (Item #17)
In the preamble EPA states that the generation of sludges is a new
point of generation where the applicability of LDR standards needs
to be evaluated. .
This is because generation of sludges is usually a new point of
generation at which the newly-generated waste is reevaluated to
.,.'-."' . 778". ' '.'.. '- .
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determine if it is subject to the LDR standards. If non-hazardous,
the sludges would not be so subject (i.e., would not be prohibited
wastes). See 55Fed. Reg. 22,661-62. (Id. at 43,673/3),
There is no reason why EPA should refrain from applying the above
policy to sludges removed from Subtitle D wastewater surface
' - impoundments. Thus, EPA should reaffirm that the applicability of
LDR requirements to sludges removed from Subtitle D wastewater
surface impoundments is solely dependent on whether or not the
removed sludge is characteristically hazardous.
b) Applicability of potential approaches to "Industrial D"
management units. .
CMA supports EPA's statement that the proposed Phase IV LDR
requirements would not necessarily set a precedent for any future
regulations regarding surface impoundments managing nonhazardous
industrial waste. Putting aside the question of whether the Agency
even has the authority to establish such requirements by rule, CMA
agrees with the Agency's current approach, which is to address such
units by means of voluntary guidelines that would be developed by
EPA, States, and affected stakeholders. CMA has accepted EPA's
invitation to participate in one EPA/ASTSWMO Industrial
Non-Hazardous Waste Initiative, and looks forward to that .
initiative moving forward in the near future. .
B. EPA Should Modify The Leak Control Requirements In Option 2.
1. EPA should not impose leak control requirements on facilities
subject to other programs addressing groundwater quality. .
CMA agrees with the Agency's proposal to defer to state programs
that require groundwater monitoring and corrective action
provisions that include the UTS constituents concern (or which can
be modified to cover those constituents). However, CMA also
believes that where a state program has made a determination that,
due to site-specific conditions, (such as impoundment construction,
local geology, or groundwater usage), monitoring or corrective
action should not be required, the Agency should defer to such a
determination, without regard to the specific UTS constituents that
might be present in the impoundment Such a
. site-specific determination under a state groundwater protection
program, based upon specific data and local expertise, is
protective of human health and the environment, and should not be
trumped by the more general requirements of Phase IV.
" ., 2. CMA agrees with the sequential approach to leak requirements
under Option 2.
:/ CMA agrees with the Agency's sequential approach to leak control
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requirements as set out at 60 Fed. Reg. 43,666. This approach .
establishes a logical sequence of monitoring, detection, and
correction mechanisms, with more burdensome requirements only
being triggered when necessary. CMA also agrees with EPA's proposal
that facilities would have the option to avoid groundwater
monitoring requirements by pretreatihg wastes or by managing
sufficiently dilute wastes.
3. CMA supports proposed exemptions from the Option 2 groundwater
monitoring requirements. > .
CMA agrees that certain units potentially impacted by the Phase IV
rule, such as biological and post-biological units, are highly
unlikely to pose risks of groundwater contamination, and should be
exempt from groundwater monitoring requirements.
4.CMA supports the use of site specific factors in determining the
best method of installing monitoring wells.
The Agency has requested comment as to whether site specific
factors, such as the physical layout of an impoundment system,
should be considered in designing a well monitoring system to
address leakage. CMA agrees that such considerations are '
appropriate. A number of member companies have impoundments that
are separated only by a berm system, and installation of wells up ,
and down gradient of each individual unit would be problematic in
those cases due to the difficulty of access for drilling equipment.
Additionally, since the intent of monitoring is to identify
situations which may impact groundwater receptors, any
configuration of wells which includes monitoring of groundwater
between the impoundment system and receptor is adequate to meet
the heed.
5. CMA agrees with the Agency's proposal to trigger additional
requirements for impoundments only when leakage poses a risk to
receptors but believes the appropriate levels of contaminants
in groundwater should be based on site specific factors.
The Agency has proposed that further actions beyond monitoring .
would not be required unless a drinking water exceedance is
detected by monitoring. CMA agrees that tangible evidence of a
release which is of concern should precede capital and operating
cost incurrence, and that any such determination be based on
site-specific factors. ' . '
7. CMA agrees with the Agency's assessment that alternatives to
groundwater monitoring should be allowed and requests that the
Agency finalize mis guidance prior to promulgation of the Phase IV
regulations.
EPA has correctly observed that there are situations where
780
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alternatives to ground water monitoring should be allowed, such as _'
when ground water monitoring is not practicable or would not detect
early releases. The Agency has noted it is preparing a rulemaking
to deal with those situations, but the inference is that that
rulemaking will follow this one rather than being developed
concurrently. Subjecting facilities to groundwater monitoring that
is ineffectual in advance of the referenced^rulemaking is an .
unnecessary economic burden. EPA should delineate which situations
will fall into this category prior to finalizing this rule and .
defer the monitoring , , ,
provisions under this rule for those units. . ,
RESPONSE . .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
. reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed .and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe -
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' -".
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DCN PH4P113 ,
COMMENTER Chemical Manufacturers Association
RESPONDER SS
SUBJECT EQUV / ;
SUBJNUM 113. . . . ' s .
COMMENT "' .
CMA appreciates the opportunity to submit comments regarding EPA's
proposed Phase IV Land disposal restrictions rule. In its proposal,
EPA is discussing whether to establish additional disposal
practices for the management of formerly characteristic wastes in
. surface impoundments that are part of a wastewater treatment
facility whose discharge is regulated by the Clean Water Act (CWA).
The Agency's proposal comes in the aftermath of the D.C. Circuit
Court of Appeals decision, Chemical Waste Management v. EPA, 976
F.2d2(D.C.Cir. 1992, cert, denied, 113 S.Ct. 1961(1992) ,
[hereinafter Chem Waste]. As we demonstrate in these comments, we
do not see anything in the court's decision that requires EPA to
change its position on allowing treatment of decharacterized
wastewater in centralized wastewater treatment systems. We also
concur with the Agency's statements that these practices present
little or no risk to human health and the environment, and we .
demonstrate that the risks the Agency believes may exist, are
overstated. ,
As we have pointed out in previous comments, the chemical.
industry's reliance on centralized wastewater treatment systems is
based on long-standing Agency policy that legitimized
the aggregation of decharacterized wastes for management in
centralized waste water treatment systems regulated by the Clean
Water Act. See Attachment A, pp. 13-14 and Attachment B, Excerpts
from CMA Comments on EPA's March 2,1995 Proposed Rule Regarding
Land disposal Restrictions For Decharacterized Wastewaters, .
, , Carbarnate and OrganoBromine Wastes, and Spent Potliners, pp.6 - 8.
Radical changes in the Agency's land disposal restrictions
rules could invalidate many existing wastewater treatment systems,
and seriously disrupt mandated Clean Water Act upgrades, deepwell
injection, and pollution prevention efforts and as the
Agency recognizes all without commensurate environmental benefit.
RESPONSE:
In the August 22, .1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
'.'.'' "'-.-' ' 782 ' '
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wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed .the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . '
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.;
783
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DCN PH4P113 , '
COMMENTER Chemical Manufacturers Association . ,
RESPONDER SS !' v . '
SUBJECT EQUV
SUBJNUM 113 '
COMMENT
i. The Chem Waste Decision Requires EPA To Select Option 1.
CMA believes that EPA should hot enact any further regulations
under Phase IV. The Chem Waste court recognized that § 1006 of RCRA
requires accommodation with the CWA "to the maximum extent
. practicable." Chem Waste, 976 F.2d at 23 and established a
carefully crafted accommodation between the LDR program and CWA ,
requirements. The court made it clear that RCRA "requires some .
accommodation with the CWA," and satisfying RCRA '
treatment standards at the point of CWA discharge is sufficient to
satisfy RCRA § 3004(m) requirements. Chem Waste, 976 F.2d at 20.
Thus, any further regulation of CWA surface impoundments
is prohibited by the court's decision, because any such regulation
would not accommodate the LDR requirements and the CWA "to the.
maximum extent practicable." '. .,'<,.
The court understood that imposing technical requirements under .
RCRA on such units would seriously disrupt CWA activities because
the surface impoundments in question were Subtitle D units managing
non-hazardous wastes and should not be subject to RCRA
regulation. Id. at 24. See also next section of comments. As a
result, the court authorized an accommodation that did as little
violence as possible to CWA operations.
CMA urges the Agency to promulgate a final rule that tracks the
specific accommodation authorized by the court in order to avoid
me risk that a different accommodation could again be struck down,
further delaying the LDR program.
RESPONSE: , ;
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
' ' ."' ; ' '< . .784 ' "'''.'
-------
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is, regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. . ." '
However, the Land Disposal Flexibility. Act does mandate EPA to .undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. .
785
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r
DCN PH4P113
COMMENTER Chemical Manufacturers As
RESPONDER SS
SUBJECT EQUV ,
SUBJNUM 113
COMMENT . . ,
The Agency's second citation is to page 24 of the, court's opinion.
Again, it is not clear exactly what passage the Agency is referring
to on that page. Since the Agency ties its new theory for
supporting its "preferred reading" of the court's opinion to the v
concept of permanent"land disposal, perhaps it is the court's
truncated and not very illuminating discussion of permanent
disposal to which the Agency refers. Id. at 24. CMA believes that
rather,than being rationale for the Agency to broaden its
Subtitle C authority to nonhazardous waste management units, the
court's discussion justifies why the Agency can allow placement of
prohibited wastes that do not meet the land disposal restrictions
' into a land based, nonhazardous waste management unit without
further regulation. It is ironic that the Agency would take a
passage from the opinion that supports treatment in non-hazardous
waste management units, and try to turn it into the basis for
regulating these units even though the risk from such management
is low.
After describing the accommodation that EPA is required to make
between RCRA and the CWA, the court justified it, by saying: <
>This result satisfies RCRA's requirement that any accommodation
"be done in manner consistent with the goals and policies" of both
RCRA and CWA. RCRA § 1006(b)(l). First, under this approach,
treatment is accomplished in conformance with § 3004(m)(l). ***
Second, nothing in RCRA demands, as NRDC petitioners would suggest,
that treatment occur prior to aggregation or dilution or that
dilution not be a step in the treatment process. Third, the
diluted streams deposited in the surface impoundment are not
"hazardous" when placed there, and they are not held there
permanently. Id. at 23-24. (Court's emphasis.)
7 The Court men proceeded to discuss the concept of permanence by
juxtaposing this case with a previous LDR case that dealt with the
land treatment of listed not characteristically hazardous waste.
API v. EPA, 906 F; 2d 729 (D.C. Cir. 1990). Since the API decision
stood for the proposition that "hazardous wastes must be treated
before being land disposed" id., the Chem Waste court needed to
explain why it wasn't requiring LDR treatment before land
placement even though the API court did.
-------
The Agency's third citation is to pages 29 and 30 of the court's ' ;
, decision. There does not appear to be anything on these pages that
address cross-media transfers, or the issue of permanent land
disposal. In fact, these pages contain discussions about different
legal issues such as: was the rule impermissibly vague and whether
the Agency's exception to the dilution prohibition impermissibly
excluded listed wastes. In regard to the latter issue, the Court
held that EPA did not
need to extend its exception to listed wasted noting that "the
:. distinction is based on the primary difference between listed
wastes and characteristic wastes." Id. at 29. In addition, the
court proceeded to note that dilution could be considered a proper
form of treatment hi some cases and meet the requirements of RCRA
'- §30Q4(m).
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).,
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to f C metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act-j '
, . *.»',.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency hi April, 1996, may .
result hi proposed regulations for these units, if risks are in fact found that would warrant such '
regulation. . .
i .
There is one caveat For characteristic hazardous wastes that are managed hi CWA or CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment
standard (e.g., high TOC ignitable wastes for which the treatment standards is recovery of
organics) remain prohibited unless treated pursuant to the promulgated method.
NOTE TO EPA: This response may still need to address the larger comment of intentional
" '" ,-'' ' 787 ' ' - - .
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vs. unintentional dilution. Direction is need to develop this response.
788
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DON PH4P113 . ;
COMMENTER Chemical Manufacturers As >
RESPONDER SS .
SUBJECT EQUV
SUBJNUM 113 .-'-.-
COMMENT .
As noted above, EPA itself has stated that even the Phase III and
Phase IV rules are unnecessary and is an unwise use of Agency
resources. See 60 Fed. Reg. 11,704/2 and 60 Fed. Reg. 43,656/2..
; , Clearly, the imposition of any requirements beyond those in Phase
III would be even more unwarranted.
The cursory risk assessment performed in connection with the Phase
IV rulemaking does nothing to change the conclusion that further
regulation of CWA impoundments is not needed. This risk assessment
is so seriously flawed and misleading that it cannot support any
finding that further regulation is needed to protect human health
. , and the environment. The flaws in the assessment were only
, exacerbated by the fact that the assessment and its underlying
information were not made adequately available to the public for
review and comment.
1 .As Shown in the Attached Report, The Data Used In EPA's Risk
, Assessment is Seriously Flawed. .
CMA and The Acrylonitrile Group asked the Gradient Corporation to
examine EPA's risk assessment developed for the Phase IV proposal.
That report is attached and incorporated with these CMA comments.
The Gradient report concludes that the Phase IV risk -'\
assessment contradicts the Agency's risk assessment principals and
guidance by, among other things, using a worst case approach as
opposed to conservative but realistic estimates of upper bound
risk. The resulting overstatement of risk may be as high as 660
fold for the air exposure pathway and, as CMA has pointed out in
previous comments, at least 240 times greater for the
groundwater pathway (See Attachment CMA's 24 July, 1992 comments to
CBEC/ECHO, p 12 and Appendix A of those comments).
Reasonable and appropriate corrections to the risk assessment
. result in the conclusion that either population or individual risks
, are well below the "acceptable" range, and any potential benefit
afforded by regulating these surface impoundments via Option 2 or
Option 3 are not necessary.
The report highlights specific concerns including:
. The data sets used by the Agency in the screening risk assessment
were obsolete and incomplete. This means that the risk assessment
789
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is not based on accurate information.
Although the Agency would not identify the exact .source of the
data, some of the data used from the Effluent Guidelines program is
more than 10 years old. Industry has made numerous changes to their f
wastewater treatment facilities over this time: For example,
process changes have been made which changed composition and flows
of waste streams, and facilities and equipment handling waste
streams have been modified or replaced. Especially relevant to
Phase IV, many impoundments have been closed during this period.
The Agency recognizes the problems with its data base and has
'requested updated information. In particular, the Agency does not
know how much of their data used in the risk assessment derives
from tank-based systems as opposed to impoundment systems. In
truth, industry cannot tell either, since the Agency has refused to
release the data base because it claims that the material was
submitted as confidential business information. CMA has repeatedly
requested that the Agency find a way of sharing its information
. with us, without violating the claims of confidentiality. To date,
the Agency has not done so. Clearly, no amount of
anecdotal information supplied by individual industry companies or
associations could satisfy the Agency's need for complete
information on all impoundments currently in use which
manage decharacterized wastewaters. However, if the Agency believes
that the risks truly are significant, they should use the statutory
authority granted to them in RCRA § 3007 to obtain current and
complete facility data for an accurate assessment of risks.
The risk assessment overstated risks via the groundwater exposure
pathway and the dilution and attenuation factors (DAF) were
inappropriately chosen. . ,
The DAF values chosen were inconsistent with earlier data sets
used in previous rulemaking risk assessments. The generic DAF of 6
associated with the highest Agency calculated risks did not take
into account any site or chemical specific conditions, or the
biological degradation which occurs with organic constituents. ' ,
The risks calculated for air emissions from nonhazardous surface
impoundments were overstated by a factor of 660.
EPA's assessment of "baseline" risks for Phase IV are 2:5 cancer
cases annually (Exhibit 2-28 of the 8/18/95 RIA for Phase IV).,
Gradient estimates that these risks are overstated by 660 fold, so
that cancer incidence would be 0 annually (using one significant
figure), with no additional Phase IV regulation.
The 100 ppm VOC trigger level used to estimate risks was derived
without adequate explanation in the background documents. The
790
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Subpart CC ralemaking, which is where this trigger comes from, is .
currently being litigated on several grounds, including this '
inappropriate threshold for control requirements.
In sum, the risk assessment is simply inadequate to suggest that
risks exist which justify additional regulations. This is
particularly true if the cost of Options 2 or 3 are taken into
account.
2. GMA has serious concerns that the public was not provided with ,
adequate information about the Phase IV risk assessment in a timely.
« . enough fashion to enable comments.
It is axiomatic that the basis for the Agency's policy ,
determinations must be made available for review as part of notice
and comment rulemaking. Unfortunately, many of the Agency's
. background documents were either not available to the public, or
. not available in the docket. None of the facilities'of the .
original data set were identified by the Agency, which claimed that . ', '
it was confidential business information. Therefore, industry is
unable to make specific comments on this data, or provide the
Agency with current information about these facilities. Much of the
information which pertained to the risk assessment (such as
Subpart CC risk assessment documents, and calculation spreadsheets
used in the screening risk assessment)were not available in the . .
Phase IV docket, and significant resources and time were required
to track down the information from Agency personnel. This barrier
to public participation in the notice and comment process is a
significant impediment to the public's right to comment on -
Jhe Agency's proposal. .
In addition, we believe that the Agency's current risk assessment . -,'"
.. is so flawed that the Agency should not go forward with the final ;.
rule (unless they select Option 1) until they revise the risk
assessment and, once again, subject it to notice and comment.
, Without an adequate risk assessment, the Agency cannot demonstrate
the basis for this rule and any revision to the risk assessment
based on comments/data received should be subject to notice and
.comment , , ,
RESPONSE: ; .
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that .
underlying hazardous constituents in decharacterized wastes were not released to the ,
environment via leaks, sludges, and air emissions from surface impoundments in systems -
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ighitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
791
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wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
'Drinking Water Act. . > ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
, ^ . . ' "
Since the Agency is not finalizing any of the options addressing equivalency of treatment in
wastewater treatment systems regulated under the Clean Water Act, the commenter's dispute with
the validity of the Agency's risk analysis related to facilities managing decharacterized wastes
containing hazardous constituents above UTS in CWA treatment systems is moot
792
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DCN ; PH4P113 . .'
COMMENTER Chemical Manufacturers Association
RESPONDER SS '
SUBJECT EQUV , : -
SUBJNUM 113
COMMENT. ...'..".
V. EPA Should Adopt A Sensible Time Sequence For Its Phase III and
Phase IV Rulemakings
EPA has proposed, or will soon propose, a number of separate RCRA
hazardous waste regulations that are closely interrelated: the
Phase III and Phase IV LDR rules, the HWIR process waste rulemaking
. and a supplemental rule relating to the point of generation for .
hazardous wastes. CMA believes that because of the significant
risks of confusion, conflict, and wasted expenses, EPA should not
finalize the Phase III or IV regulations until after it has
clarified the point of generation and finalized HWIR. CMA further
urges EPA to issue the Phase III and IV rules with a common
effective date. ,
In Phase III, EPA proposed that the facilities managing formerly
characteristic hazardous wastes, must meet LDR treatment standards
\ at the end-of-pipe. As part of that rulemaking, EPA asked for
comments relating to the .where prohibited wastes are generated.
Because of industry's long-standing practice of aggregating
wastewaters for centralized treatment, this a critical issue for
determining the applicability of EPA's Phase III requirements and
will have a major effect on compliance strategies. Because of the
importance of this issue, EPA announced that it would
. seek additional comments on it. In Phase IV, EPA is considering
whether to impose additional requirements on the same surface
impoundments addressed in Phase 111, .with respect to
potential'leaks, air emissions, and sludges. Again, the point of
generation is a critical issue for determining which impoundments
will be subject to the rule. In the HWIR rule, EPA will establish
risk-based concentration levels for many hazardous constituents,
below which wastes will no longer be considered to be hazardous
wastes, and thus will not be subject to further Subtitle C
regulation, including the LDRs. The HWIR rule could thus delimit
the number of impoundments that are subject to the land disposal
restrictions under Phase III and IV. . .
CMA believes that if theserules are not finalized in the.
appropriate order, the resulting disruption of the regulated
community will be severe, as well as unnecessary. As explained
in detail below, the HWIR rule could make significant changes in .
793
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the LDR program, rendering worthless the substantial capital , .
expenditures that will be necessary to comply with Phase III and IV ,
, regulations. Similar wastes of resources will result if EPA makes
the Phase III rule effective earlier than.the Phase IV rule, .
because the choices EPA makes in the filial Phase IV rule will
often determine the most cost-effective way to comply with the LDR
requirements. Finally, EPA should not ask facilities to address
compliance with either the Phase III or IV rule without finalizing .
' the point where the land disposal restrictions attach.
It is also difficult, if not impossible, for GMA to comment on
the specifics of Option 3 without proposed regulatory language.
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
, wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe ,
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation..
s "s '
Although the Agency cannot predict exactly how the constituent-specific exit levels for certain
low-risk solid wastes in the HWIR final rule will compare with the UTS levels, the Agency did
consider available risk information when making decisions regarding final treatment standards in
the technology-based LDR program. During the development of final treatment standards, the .
Agency examined whether the UTS for some metals may be far more stringent than any
reasonable minimize threat level: The initial reasoning was that if the Agency found evidence
that the final HWIR minimize threat level was likely to be much higher than the proposed UTS
for any toxic characteristic wastestream, EPA would consider whether to raise the proposed
treatment standard prior to finalizing the Phase TV rule. EPA examined the proposed HWIR exit
794
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levels for the toxic metal wastes including in the Phase IV rulemaking. When EPA compared the
proposed HWIR exit levels to the UTS for each metal constituent, the Agency found that the
BOAT level was, in most cases, within an order of magnitude of the proposed HWIR exit level.
There were significant differences between the proposed HWIR exit level and UTS for two
metals, and _. As discussed in section of the preamble to the Phase IV final
rule......[need to complete once preamble language is written] ,
I ' '
In light of the differences in timing between the HWIR and the Phase IV final rule, there is too
much uncertainty about what the final HWIR levels will be to incorporate those levels into the
UTS for any constituents. Section 3004(m) of RCRA requires that the Agency promulgate
treatment standards that specify levels or methods of treatment that "substantially diminish the
toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents
from the waste so that short-term and long-term threats to human health and the environment are -
minimized." The proposed HWIR levels have not yet been established as "minimize threat"
levels. . ' : ' -,.-.
The Agency discussed possible changes that could be made to the "point of generation," or the
point at which LDR requirements attach to a hazardous waste in the proposed LDR Phase III
rulemaking (see 60 FR 11717, March 2,1995). The Agency is still considering the options
discussed in that proposal and potentially other options not discussed. The Agency will reopen .
the point of generation issue for further comment, and is intending to finalize an option in a
future rulemaking.
,
795
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DCN PH4P113 / "'
COMMENTER Chemical Manufacturers Association .
RESPONDER SS
SUBJECT EQUV ,
SUBJNUM 113 . \ . ,
COMMENT ..
b) The Phase IV regulations should only apply to Subtitle D ,
wastewater surface impoundments, receiving decharacterized
wastewater. (Item #2) .
Both Subtitle C and D wastewater surface impoundments may receive .
decharacterized wastewaters. However, only Subtitle D surface
impoundments should be impacted by the Phase IV regulations.
This is consistent with the Chem Waste court ruling which was
directed towards Subtitle D surface impoundments and not to
Subtitle C surface impoundments. This applicability difference
between Subtitle C and D wastewater surface impoundments is
acknowledged in Section I.e. of the preamble:
"Today's options to address surface impoundment releases . .
specifically apply to Subtitle D(nonhazardous) surface
impoundments that receive decharacterized wastes." 60 Fed: ',
43,657/2. . --.'.
Therefore, EPA should specifically state in the regulations that
only Subtitle D waste water surface impoundments are covered by
Phase IV regulations. ;
c) The phrase "and other nonhazardous waste surface impoundments" .
should be either subject to notice and comment rulemaking or >
removed. (Item #3).
CMA is confused as to the meaning of "and other nonhazardous waste
surface impoundments." The Chem Waste court ruling only addressed
CWA treatment systems. The phrase "and other nonhazardous waste * -
surface impoundments,11 or any similar phrase, is not used in the
Chem Waste decision or the associated regulation. Thus, EPA should
eimer define The phrase "and other nonhazardous waste surface .
impoundments" in a Federal Register notice prior to promulgation of
any Phase IV regulations so that comments can be submitted from
the impacted community, or delete it
RESPONSE: . ' .
In the August 22,1995 Phase IV proposalj EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments hi systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
796
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/ " ,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
, Drinking Water Act. ' ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
'regulation.
797
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DCN : PH4P113
COMMENTER Chemical Manufacturers Association
RESPONDER SS : ,
SUBJECT EQUV . .
SUBJNUM 113 .
COMMENT . .
. I) CMA could improve their pollution prevention option. (Item #9)
CMA believes that pollution prevention could be an alternative to
the usual LDR treatment requirements, but only if the Agency allows
its use, and does not mandate it. Since pollution prevention can be
a prohibition on generation of a type of waste, it can never
. qualify as a treatment standard for wastes that are generated.
. Pollution prevention, however, could be used as an alternative that
allows a facility to designate a source reduction project for a
particular constituent and then use that reduction as on offset
against treatment of another wastestream that is less effective
thanBDAT. .
Wastewater collection and treatment systems are complex in their
nature, as the Agency is aware. The source wastewaters vary from
potentially more concentrated wastes from columns and other unit
operations to very dilute wastewaters from utilities such as
cooling tower blowdown. The Agency has proposed to allow as
excluded systems those for which source wastewaters can be
identified and pretreated to an equivalent mass removal as would
' . be achieved by treating the combined waste to UTS levels. While CMA
agrees that there may be wastewater systems which can avail
themselves of this option as crafted, it is too narrowly crafted
to be of use to many member company facilities, respectively.
However, removal efficiency achievable by steam stripping, the "
required MACT-based technology under the HON, is 95 and
96, respectively. Thus, the recovery efficiencies are not
achievable by traditional wastewater technologies (such as steam
stripping) and would require use of destruction
technologies(chemical or thermal) which preclude recovery of these
organics (which is the focus of the Agency's push for pollution
prevention).
In order to encourage pollution prevention in all instances where
a small and concentrated enough stream can be identified, CMA
, requests that the Agency consider a broader allowance. Where the
configuration of a given wastewater system is such that an
operator can show that insufficient streams are identifiable to
meet the target and can demonstrate that to the
regulatory authority (State or Regional), CMA believes that the
798
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facility should also be excluded"from the requirements of the Phase
IV regulations related to leaks, sludges and air emissions. For .
facilities , (
to be eligible for this exclusion, CMA believes it is appropriate , ,
that EPA require that the facility
actually pretreat all streams feeding the .waste water system which
have recoverable materials in them. .
Therefore, the Agency should adopt a requirement under the .
pollution prevention option that organics be removed from streams
by traditional wastewater technologies (or alternative technologies
which the generator can demonstrate 4re appropriate for the
stream) where it is reasonable to do so, but should not impose a '
concentration limit on such streams. ''',-
. . -s.
RESPONSE: .
Allowing a facility to designate a source reduction project for a particular constituent and then
use any reduction in the quantity of that waste generated to offset required treatment of another
wastestream to a level that is less effective than BDAT may not necessarily reduce the overall
risk to human health and the environment, and could, in fact result in a greater risk than if both
waste streams were generated and treated to BDAT standards. The Agency is not proposing or
finalizing such a pollution prevention tradeoff at this time.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. \
*^ . P .
799
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800
-------
DCN PH4P113 . . \ ;';
COMMENTER Chemical Manufacturers As
RESPONDER SS '
SUBJECT EQUV ' " ' '
SUBJNUM: 113 .' :
COMMENT , l
' D. CMA concurs that no disproportionate risk will be imposed on " \
any community as a result of the Phase IV rule. . , , .
CMA supports the goals of the Agency in ensuring that no segment
of the population bears disproportionate risk, and to enhance
environmental quality for all residents of the U.S. CMA does not
believe that the Agency has demonstrated that any significant
risks to human health and the environment are currently posed by
non-hazardous impoundments handling decharacterized wastewaters.
RESPONSE:
, In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosiviry,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
. wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on Aprils, 1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
^ in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act : , .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . ,
801
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DCN PH4P113
COMMENTERCMA , '
RESPONDERSS
SUBJECT EQUV '
SUBJNUM 113 . ..-'"'
COMMENT
3. RCRA Does Not Give EPA Jurisdiction To Impose Subtitle C Technical Requirements On
Subtitle D Units.
It would run contrary to Congress1 clear intentions in structuring Subtitles C and D for
EPA to impose technical requirements on Subtitle D units under Subtitle C authority. While
Congress intended for EPA to regulate hazardous waste management under Subtitle C, it made it
clear that Subtitle D regulations were to be primarily a responsibility of the states. Although
the Chem Waste decision indicated that EPA has authority to set numerical LDR treatment
standards for characteristic wastes below the characteristic level, it did not state that EPA has
jurisdiction to impose technical requirements on Subtitle D units that are not managing
hazardous . . ,
wastes. In fact, as we demonstrate above, the Court specifically authorized such subtitle D units
to accept these formerly characteristic wastes stating that such accommodation was consistent
with both RCRA and the CWA. '
The contemplated Option 2 requirements, addressing air emissions, sludges, and leaks from
CWA wastewater treatment units, would be neither prohibitions from land disposal under §§
3004(d) through (g), nor treatment standards pursuant to § 3004(m). The technical surface
impoundment requirements in Option 2 are clearly not "prohibitions," because the hazardous
wastes involved are already prohibited from land disposal. 40 C.F.R. §§ 268.35,268.37.
Furthermore, the proposed Option 2 requirements cannot be treatment standards,-because they
are neither "levels" nor "methods" of treatment as set out in § 3004(m) of RCRA. EPA lists
treatment standards that are numerical levels in 40 C.F.R. §§ 268.41 and 268.43, and lists
methods in 40 C.F.R. § 268.42.
Because the Option 2 requirements would not be prohibitions or treatment standards, they
are not LDR provisions, and EPA's authority to impose them must come from elsewhere in
RCRA. However, there is no authority, for the requirements elsewhere in RCRA, because they
would regulate Subtitle D units that do not receive any hazardous wastes. The Court's decision in
Chem Waste allowed EPA to impose certain continuing requirements on wastes that were no
longer hazardous wastes (i.e., imposing BDAT levels below the characteristic level) but only
because of the special nature of the LDR program. Apart from the LDR program, the court noted
that EPA is limited to the regulation of hazardous wastes under Subtitle C. Id., at 20 and 24. In
American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987), the court rebuffed EPA's
attempt to expand its Subtitle C jurisdiction by broadening its regulatory definition of "solid
waste. The court stated: ,
802
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RCRA includes two major parts: one deals with non-hazardous solid waste management and the
other with hazardous waste management. Under the latter, EPA is directed to promulgate
regulations establishing a comprehensive management system. [ 142.U.S.C. § 6921] EPA's -
authority, however, extends only to the regulation of "hazardous waste." 824 F.2d at 1179.
The court went on to say that "[the" very care evidenced by Congress in defining RCRA's scope
certainly suggests that Congress was concerned about delineating and thus cabining EPA's
jurisdictional reach." 824 F.2d at 1189. See also American Mining Congress v. United States ;
Environmental Protection Agency, 907 F.2d 1179, 1185 (D.C. Cir. 1990). ;
j .
The surface impoundments being considered in the Phase IV rule are Subtitle D units that
are part of CWA or CWA-equivalent systems. They do not accept hazardous wastes. EPA thus
has no authority to regulate them under Subtitle C of RCRA. ; , .
Finally, even if there were jurisdiction in some part of RCRA other than the LDR provisions
for the Option 2 requirements, the standard for imposing such requirements is that
they must be "necessary to protect human health and the environment." RCRA §§ 3002(a),
3004(a). EPA has made it quite clear that it does not consider the Phase IV rules to be necessary
indeed, it does not even consider the Phase III rules to be necessary. The Agency has
reinforced this policy determination many times in statements to proposed rules or before
Congress. See Sections I and II of these comments. Although the D.C. Circuit rejected EPA's
legal construction in the Third-third rule, the court did not disturb EPA's finding, in the
"third-third" rule, that further regulation of decharacterized wastes placed in CWA systems was
unnecessary as a matter of policy and environmental protection." See e.g., 55 Fed. Reg.
22,651-22,652 and 22,656-22,659 (June 1,1990).
RESPONSE
In the August 22,1995 Phase TV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
.environment via leaks, sludges, and air emissions from surface impoundments in systems ,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are Wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the..
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR,
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . .-
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
803
. N
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determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
804
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DCN PH4P116 .
COMMENTER Occidental Chemical Co.
RESPONDER PMC
SUBJECT EQUV ,
SUBJNUM 116 .
COMMENT
, Occidental Chemical Company (OxyChem) is a diversified
manufacturer of industrial and specialty chemicals. Twelve (12) of
our manufacturing locations utilize thirty-five (35)non-hazardous
impoundments, primarily to manage wastewater. Seventeen of
these impoundments may be affected by the proposed Phase IV (and
Phase III) RCRA Land Disposal rules. Therefore, our facilities
will be directly impacted by this rule and comments are
being offered for the record. . '
OxyChem supports comments submitted for the record by the Chemical
Manufacturers Association, as well as the American Industrial
Health Council (AIHC).
I. Summary , .
OxyChem urges EPA to adopt Option 1 because of the relatively low
" risk to the environment from non-hazardous wastewater impoundments.
Any potential risk from non-hazardous wastewater impoundments can
be addressed by existing state and EPA programs. OxyChem agrees
with EPA that Option 3 would be disruptive to existing wastewater -
treatment systems, with minimal environmental benefits. ' ;
If Option 2 is selected, it should be modified to be less
prescriptive and allow state air:and groundwater programs to
minimize any environmental risks rather than create an overly.
restrictive federal rule. This modified Option 2 requires
time allowances of up to four years for major replacement projects
where needed to comply with Phase III and IV rules.
Our comments are categorized by the seven basic objectives which
EPA set for the rulemaking. .-,.-.
II. Focus on Significant Risks from Permanent Disposal
A. Potential risks from non-hazardous impoundments can be more
v effectively addressed through the CAA, CWA and state groundwater
protection programs. ~ .
OxyChem agrees with EPA statements that higher risk activities
should supersede this rulemaking. Therefore, Option 1 should be
selected. If gaps exist in current state programs, they should be
identified and addressed through the current regulatory structure
after prioritization by risk.
80S
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B. Risk estimates for non-hazardous impoundments are
overstated.
OxyChem supports CMA s evaluation which states that risks to
groundwater and to ambient air may be significantly overstated.
Therefore, Option 1 should be sufficient.
E. A mechanism must be provided to continue to use impoundments
after constituents are detected in groundwater, if warranted by
site-specific factors.
If the Agency selects Option 2, OxyChem supports a
self-implementing groundwater protection program. However, a
mechanism similar to 258.55(1) is necessary to allow use of risk
assessments where the self-implementing process is inadequate. For
example, a constituent detected in the groundwater may not have
originated from the impoundment being monitored..
E. EPA should clarify that these rules do not apply to ditch and
trench conveyance systems which do not function as disposal or
treatment units. ' *
If there are concerns with these conveyance.systems, the Agency
should address them in a separate rulemaking.
III. Avoid Duplication with other EPA Requirements
A. Existing CAA and CWA programs will yield more environmental
protection in a more cost effective and less confusing manner.
Cross-media transfers are possible to air, surface water or
groundwater. However, the proposed Option 2 creates a fragmented
and confusing system. Existing CAA, CWA and state groundwater
programs incorporating EPA subtitle D guidance are the more
effective authorities to address these issues. It is impossible to .
prevent releases of every molecule of hazardous .
constituents. Duplication and confusion with overlapping provisions
of existing and forthcoming CAA rules and state groundwater
protection rules will be created if EPA promulgates Option 2.
B. Exemptions should be granted on the basis of CAA
standard applicability and hot on equivalence to Subpart CC rules,
if Option 2 is selected. .
The wastewater generated at our facilities, which could be
point-of-generation hazardous wastewater with greater than 100 ppm
VOC s, is or will be subject to one or more EPA air regulations,
including NESHAP/MACT (Part 61/Part 63)or NSPS (Part 60) air
emission standards and their associated control requirements. If
EPA air regulation development concludes emissions from wastewater
are insignificant, no further action should be required .under
RCRA.
806
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C; SubpartCC rules proposed under Option 2 provide a confusing .
overlap with other above-mentioned air rules.
Analytical Method 25 picks up a variety of compounds which may not
be volatile underlying hazardous constituents (UHC s) addressed by
this rule. If Option 2 is selected, air concerns should be limited
to volatile UHC s as measured by any approved analytical method,
rather than just Method 25.
D. OxyChem applauds the deferral under Option 2 to states where
groundwater programs are "substantially similar."
However, if mis option is selected, EPA should include a list of
states that are similar, those that are substantially similar but
need a few modifications, and those
that are not currently similar. The criteria for judging
similarity should not be the MSWLF (Part 258) rules. The criteria
should include program elements which can be used to protect
groundwater and bib flexible enough to allow for different state
approaches, as long as groundwater is adequately protected.
E. A deferral should be provided for non-hazardous surface
impoundments located at a permitted TSDF and/or subject to RCRA
Corrective Action. ... .
One-third of our affected facilities will avoid duplicative
requirements if this exemption is offered under Option 2.
C. Groundwater protection procedures should be in the form of
guidance to the states.
Groundwater sampling, analytical requirements and statistical.
requirements should not mirror Subtitle C or Part 258 rules. " .
Maximum flexibility would be provided by incorporating options into
a guidance document for use by state regulators and the regulated
public. ' , , .
V. Recognize Valuable Treatment in Impoundments
A. OxyChem disagrees with statements that primary impoundments
provide only incidental treatment.
Carefully designed primary treatment units often provide greater
than 50% TSS, BOD and hazardous substance removal, as well as
valuable equalization of intermittent .waste streams, flow,
temperature and pH.
B. Biological impoundments should be exempt from several of the
Option 2groundwater requirements.
Biological impoundments pose a minimal threat to groundwater and
should be exempt from monitoring requirements. In addition,
post-biological impoundments should also be exempt from air
emission controls.
C. Impoundments that are used for containing wet
807
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weather flows should be , \'
exempted under Option 2.
This is particularly true in southern states where tank-based
wastewater treatment systems often have impoundments to contain
diluted process and stormwater generated periodically during high
rainfall events. These impoundments often are used to protect
tank-based systems from hydraulic surges and prevent
weather related effluent excursions.
D. A waiver of remediation should be allowed if warranted by
site-specific factors. ,
If Option 2 is selected, a provision allowing for a waiver of
remediation, similar to that provided in the MSWLF rules, Part
258.57, should be incorporated. Provisions should be made to allow
continued use of an impoundment if no threat exists to the
environment and if the discharge to the impoundment is
modified. This would allow consideration of site-specific factors.
/.
VI. Protect Human Health and Environment
A. It may be unfeasible or unnecessary to remediate all leaks.
OxyChem does not agree with EPA logic under Option 2 that, if an
underlying hazardous constituent is leaked; it is illegally .
disposed of waste that must be retrieved and properly managed. In
some situations, there may be no significant threat to the -
environment, especially for compounds where no drinking water MCL
exists or where an active remediation program already exists.
C. Using drinking water standards to trigger monitoring is
reasonable.
Setting the trigger level for monitoring well installation under
Option 2 based multipliers of drinking water MCL s or state .
groundwater protection standards seems reasonable. Again, however,
if technology based UHC s are used, it should not be assumed they
are groundwater protection standards.
VI. Minimize Implementation Burden
A. If Option 2 is selected, the Phase III and IV rules should be
merged into one rule, with one schedule of compliance. :
EPA stated that public comments on the Phase III rulemaking were
not reviewed by the time this rule was proposed. Final decisions
on upgrading or replacement must consider impact of both Phase III
and IV rules. . .
D. OxyChem favors the self-implementing nature of Option 2
regarding groundwater protection, but flexibility must be added.
This closely parallels elements of the CMA Responsible Care
. Program. However, wholesale adoption of MSWLF Part 258 rules is not
808
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warranted! They are too prescriptive, overly detailed, and do not '-
address inadequacies in the Subtitle C groundwater program. . - .
Because of the detailed nature of Part 258, the majority of
self-implemented programs will require agency involvement. Guidance .
for groundwater protection programs should be developed for
states. If a state program does not meet all elements of the
guidance, a site should be able to demonstrate how it can
accomplish the overall objective if one or more elements from EPA s
program are missing from the state program. Sites with existing .
state-or EPA-approved groundwater monitoring programs should
not have to repeat an adequacy demonstration. ,
£. Other mechanisms for detecting releases to groundwater should . ,
be allowed under Option 2, especially for existing impoundments.
For example, vadose zone monitoring or leachate collection system .
monitoring should be allowed in place of groundwater monitoring if
ho leaks are detected. ^ , .
G. The applicability scope of the rule should be clarified.
This includes stating that both Phase III and Phase IV rules do v
not apply to non-hazardous sludges generated from tank-biased
wastewater treatment systems to prevent future confusion. . . '
VIII. Create Incentives for Alternative Controls
A. Controlling emissions at impoundments is impractical. ' '
If Option 2 is selected with SubpartCC air controls, ; '.-.''
' point-of-generation recycle or pretreatment options must be done
. because covering impoundments and adding air controls to the covers
. will rarely be feasible. r
RESPONSE . , ' . '-.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and ah* emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardpus. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments. (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
809
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Drinking Water Act. '- ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may.
result in proposed regulations for, these units, if risks are in fact found that would warrant such.
regulation. , ,
810
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DCN PH4P116 . ,
COMMENTER Occidental Chemical Co.
RESPONDED SS
SUBJECT EQUV .
SUBJNUM 116
COMMENT , . ',''.-
B. A mechanism should be provided to allow use of site-specific
factors in determimng site groundwater protection levels.
Use of technology-based universal treatment standards (UTS) as
default groundwater protection standards may not always be
appropriate. Additionally, we agree it may not be reasonable to .
clean up to below background levels. In some cases, it may not be
feasible to clean up to background levels. Clean up to background
or UTS levels should not always be required if hazardous : "
wastestream constituents are reduced in the discharge to the
impoundment and no significant threat to groundwater exists. ,
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes.which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity; or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered rionhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR !
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . > ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. , , x
811
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DCN . PH4P116 :
COMMENTER Occidental Chemical Co.
RESPONDER SS \
SUBJECT EQUV
SUBJNUM 116 ;
COMMENT
D. The main focus of groundwater remediation should be to ~
prevent offsite releases. * ' .
OxyChem agrees with EPA in that, under Option 2, in some
industrial settings, the point of compliance may be the property
line. ; ' ' '.
' . ' ' '
RESPONSE: ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems ,
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic, is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act. ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. >
812
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DCN PH4P116 .
COMMENTER Occidental Chemical Co. . -. , '
RESPONDER SS -
SUBJECT EQUV . , : ,
SUBJNUM 116 / / . '
COMMENT .-'.' . ; '-/;
B. OxyChem supports broadening of the pollution prevention
compliance alternative.
.However, it should bie constructed as broadly as possible. The
option of pursuing equivalent air, water or ground water reductions
of constituents from sources other than the point of generation can -....-
be highly effective and environmentally protective.
RESPONSE: ; :.
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitabiliry, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,19%, EPA withdrew its treatment standards for these wastes (61 FR 15660).
.Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed.optiohs on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . ~ .
j : . j
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result hi proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
Since the Agency is not finalizing any of the options addressing equivalency of treatment in
wastewater treatment systems regulated under the Clean Water Act, the commenter's suggestions
regarding the broadening of the pollution prevention compliance alternative are no longer
relevant
813
-------
DCN PH4P116 - .
COMMENTER Occidental Chemical Co.
RESPONDER SS
SUBJECT EQUV '
SUBJNUM 116 " , ' ,
COMMENT - '
D. The proposed wastewater standards for volatiles should be ;
reevaluated to account for efficiencies of treatment technology
applicable to wastewater. , .
As indicated in our comments on Phase III, differences in ~
available treatment technologies must be considered for organic and
inorganic chemical production facilities. For example, biological
treatment was used as the basis for the chloroform standard of
0.046 mg/l. As indicated In the OCPSF Effluent Guidelines (40 CFR
' 414), direct dischargers (e.g., chlor/alkali facilities) that
do not (and could not because of low organic content) use
end-of-pipe biological treatment are subject to different
standards, based on different treatment technology. Inorganic
chemical facilities would consider the use of stripping technology
for then* wastewater, particularly for waste streams with a series
oforganics. The proposed chloroform standard of 0.046 mg/l may
not be consistently achievable. In fact, 40 CFR 414.101 specifies
a chloroform limit of 0.325 mg/l to account for these performance
variations.
RESPONSE:
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
814
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determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would .warrant such
regulation. . :
815
-------
DCN PH4P116
COMMENTER Occidental Chemical Co. '
RESPONDER SS
SUBJECT EQUV ; .
SUBJNUM 116 ..'-...'
COMMENT
B. Final regulatory language needs to be issued for public
comment ' .
This is not a proposed rule but a discussion of possible"
approaches. Therefore, review of the final rules should be
allowed, unless the final rule is issued as guidance only. ,
RESPONSE: ,
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems .
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March, 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
^Drinking Water Act. , ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
Since the Agency is not finalizing any of the options addressing equivalency of treatment in
wastewater treatment systems regulated under the Clean Water Act, the commenter's concerns
regarding publication of regulatory language for notice and. comment is moot.
816
-------
DCN PH4P116 ,
COMMENTER Occidental Chemical Co. '
RESPONDER SS
SUBJECT EQUV , .:
SUBJNUM 116 \ '."
COMMENT ' '
B. OxyChem supports broadening of the pollution prevention
. compliance alternative.
However, it should be constructed as broadly as possible. The
option of pursuing equivalent air, water or groundwater reductions .
of constituents from sources other than the point of generation can
be highly effective and environmentally protective.
RESPONSE: ' . ' :
In the August 22,1995Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacierized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharactenzed
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase.IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment .standards for TC metal wastes in today's rule do not.
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe .
Drinking Water Act. , ,
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may >
result in proposed regulations for these units, if risks are in fact found that would warrant such .
regulation.- ' ,
Since the Agency is not finalizing any of the options addressing equivalency of treatment in
waste water treatment systems regulated under the Clean Water Act, the commenter's suggestions
regarding the broadening of the pollution prevention compliance alternative are no longer
relevant. . i
817
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DCN PH4PL02
COMMENTER Distilled Spirits Council
RESPONDER SS
SUBJECT EQUV ':..'
SUBJNUM L02
COMMENT , ' ',
Occasionally, distilled spirits products may need to
be disposed of due to organoleptic concerns,
misiabeling, discontinuation of a product line, or
excessive age. In each instance, the discarded
product still is potable. Further, ethanol is totally
miscible in water and disperses rapidly; therefore,
dilution prior ro introduction into a surface
impoundment fully satisfies the deactivatioh
standard set forth in Table 1 of 40 C.F.R. § 268.42.
Ethanol, diluted, rapidly biodegrades to carbon .
dioxide and water once places in an impoundment.
Thus, in light of the fact that distilled spirits contain
no underlying hazardous constituents, deactivation
of the hazardous characteristic through dilution is
satisfactory as a exclusive method of treatment
within the meaning and purpose of RCRA §
3004(m).
DISCUS agrees with EPA that the court i
Waste Management v. EPAT 976 F.2d 2. cjeij. denied
113 S.CU961 (1992), did not intend to require that
LDR standards be met by treatment prior to
impoundment for such waste. 60 Fed. Reg. at
43656. DISCUS therefore supports the first
proposed option, which would rely upon the Phase
III rule and other Agency programs to address
potential cross-media releases from surface
impoundments.
Pursuant to mis option, ignitable wastes that have
been deactivated through dilution to eliminate the
hazardous characteristic may be placed in surface
impoundments without further treatment unless they
contain underlying hazardous constituents in
sufficient concentrations to pose a threat to human
health or the environment. While DISCUS favors
this option, we also request a clearer statement in
818
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.both the Phase III and Phase IV rules to the effect
that if a hazardous waste has been deactivated so that
i 1
no hazardous characteristic remains and the waste
contains no underlying hazardous constituents (or
. contains constituents in concentrations below the '
threshold in the Universal Treatment Standard), then . !
dilution is acceptable as an exclusive method of .
treatment.
RESPONSE
In the August 22,1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were hot released to the
environment via leaks, sludges; and ah- emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic). On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
-Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act . .
! ' .
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-year study to
determine any potential risks posed by cross-media transfer of hazardous constituents from these
surface impoundments. The findings of this study, begun by the Agency in April, 1996, may
result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation. ' . . . .
There is one caveat. Characteristic hazardous wastes that are managed in CWA or CWA-
equivalent systems, and for which EPA has promulgated a method of treatment as the treatment .
standard (e.g., high TOC ignitable wastes for, which the treatment standard is recovery of
organics) remain prohibited unless treated pursuant by the promulgated method.
819
-------
820
-------
DCN PH4P013 ,
COMMENTER NewYorkDEC
RESPONDER SS
SUBJECT F039
SUBJNUM 013 :
COMMENT - ,
* * .,'.-'
DEC also agrees with EPA's proposed simplification of the ...
.treatment standard for wasteF039. There is no need to separate
the treatment standards for F039 in the table under 40CFR 268.40. , -
RESPONSE:
The Agency appreciates the commenter's stated support for the proposed change to the FO39 .
treatment standard. However, the Agency has decided to maintain the existing FQ39 treatment
standard (as promulgated under the LDR Phase III ruiemaking), rather than change it as
proposed. The Agency's intent in proposing the change to the FO39 treatment standard was to
simplify the LDR regulations. EPA did not intend to broaden the scope of the treatment
standards for FO39. However, the change to the FO39 treatment standard, as proposed, would
have resulted in both a simplification of the regulatory language (e.g., eliminating the need for a
separate list of constituents for FO39) and a broadening of the scope of the, standards (e.g.,
increasing the number of constituents applicable to FO39). Although the Agency could continue
to reference the list of constituents and the applicable UTS provided in §268.48 for FO39 and
expand the proposed list of exempt constituents for FO39, the result would be to complicate,
rather than simplify the regulatory language. Therefore, EPA is maintaining the existing
treatment standards for FO39, as listed at 40 CFR 268.40.
821
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DCN PH4P031
COMMENTER Department of Energy
RESPONDER SS (
SUBJECT F039
SUBJNUM 031
COMMENT " , ,
III.B. Simplification of Treatment Standard for Waste Code F039
1. p. 43679, col. 1 - EPA proposes that the LDR treatment
standard for F039 be changed from specific concentrations for a
x list of hazardous constituents to the Universal Treatment Standards
in§268.48, with the exception of fluoride, vanadium and zinc.
a. DOE requests that EPA clarify the exclusion of concentrations
for fluoride, vanadium and zinc from the LDR treatment standards
for F039 wastes. The reasoning for this is unclear. The existing
LDR treatment standards for F039 include concentration limits for
fluoride and vanadium, but not zinc (see existing 40 CFR §268.40,
- Table-Treatment Standards for Hazardous Waste). The existing UTS
(§268.48 Table UTS - Universal Treatment Standards) include
concentration limits for all three constituents: If EPA is
excluding these three constituents from the LDR treatment standards
applicable to F039 because they are excluded from the definition of
"underlying hazardous constituents," DOE is confused as to the
connection and requests that EPA address this issue in the
preamble to the final rule.
b. EPA appears to be broadening the scope of the F039 treatment
standard by referencing the UTS Table because there are eight
organic constituents on the UTS table that are not now covered by
the F039 treatment standard. These constituents are Aerylamide,
Benzal chloride, p-Chloro-m-cresol, p-Dimethylaminoazo-benzene,
o-Nitroaniline, o-Nitrophenol, Pentachloroethane, and Phthalic :
acid. These eight organic constituents should also be designated
as exceptions from the UTS that constitute the F039 treatment
standard. This should be done either in the columns of the table
in §268.40, "Treatment Standards for Hazardous Wastes," labeled
"Wastewaters" and "Nonwastewaters," or in a footnote the table.
c. DOE provides the following comments on the proposed
regulatory language implementing this section of the preamble.
(1) p. 43697,40 CFR268.40, Table-Treatment Standards for
Hazardous Wastes EPA proposes that the LDR treatment standards
822
-------
given on this table for F039 wastes be changed, for both wastewater
and nonwastewater forms, from a list of individual chemical >
constituent concentrations to the Universal Treatment Standards
in §268.48, with the exceptions of vanadium and zinc; ; .
(a) DOE notes that the proposed regulatory language for the Table .'"
. (i.e., proposed 40CFR 268.40, Table - Treatment Standards for
Hazardous Wastes) differs from the preamble (60 FR 43654,43679, "
col. .1) in that the preamble states that fluoride will be an ,
exception to the UTS for this waste stream in addition to vanadium
and zinc. DOE requests that EPA resolve the inconsistency between'
the preamble and the proposed regulatory language. .
(b) In the proposed regulatory language for the Table (i.e., . ,
proposed 40 CFR 268.40,table - treatment Standards for Hazardous
Wastes), the column labeled"Commbn Name" contains the following .
words for the F039 waste code:"Universal Treatment Standards in
§268.48 apply, with the exceptions of fluoride, vanadium, and .
zinc." Such wording is inconsistent with the language proposed
for the F039 columns labeled "Wastewaters" and "Nonwastewaters."
Also, it appears that the words "multi-source leachate" might be
more appropriate as the "Common Name" for the F039 waste code.
RESPONSE: , , >
The Agency has decided to maintain the existing FO39 treatment standard (as promulgated under
the LDR Phase III ridemaking), rather than change it as proposed. The Agency's intent in '
proposing the change to the FO39 treatment standard was to simplify the LDR regulations. EPA
did not intend to broaden the scope of the treatment standards for FO39. However, the change to
the FO39 treatment standard, as proposed, would have resulted in both a simplification of the
regulatory language (e.g., eliminating the need for a separate list of constituents for FO39) and a
broadening of the scope of the standards (e.g., increasing the number of constituents applicable to
FO39). Although the Agency could continue to reference thelist of constituents arid the
applicable UTS provided tn §268.48 for FO39 and expand the proposed list of exempt
constituents for F039, the result would be to complicate, rather than simplify the regulatory
language. Therefore, EPA .is maintaining the existing treatment standards for FO39, as listed at
40CFR268.40. . -
The commenter is correct in pointing out the inconsistency in the proposed rule related to the
exceptions to the applicable UTS for FO39. The Agency's intent was to exclude vanadium and
zinc from the list of applicable UTS, due to their exclusion from the definition of underlying
hazardous constituents. However, since the Agency is maintaining the existing treatment
standard for FO39, the point is moot
823
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DCN PH4P048
COMMENTER Chemical Waste Management ;
RESPONDEK SS
SUBJECT F039
SUBJNUM 048
COMMENT .
B. Simplification of Treatment Standard for Waste Code F039 (60
Fed. Reg. at 43,679)
Ostensibly, the Agency is proposing to simplify the treatment
standard for multisource leachate (F039). The Agency states that
with the promulgation of the UTS in the Phase II LDR rule (59 Fed.
Reg. at 47982) there is no longer a need for the separate list of
constituents for F039 which currently appears in 268.40. The Agency
is proposing that F039 meet the UTS for the constituents at 268.48,
with me exception of fluoride, vanadium, and zinc. '
While on its face this proposed change has the appearance of
simplicity, CWM believes that the Agency has seriously understated
the impact of converting F039 to UTS. The Agency's statement that
there is no longer a need for a separate list of constituents
implies that the two lists are the same, except for fluoride, .
vanadium, and zinc. This is not the case. CWM conducted a
detailed review of 268.48 (UTS) and 268.40 (F039) which highlighted
the following facts. First, EPA's proposal actually adds six
new constituents (Acrylamide, Benzal Chloride, 2-Chloroethyl vinyl
ether, o-NitroaniUne, Pentachloroethane, and Phthalic acid) that were
not previously regulated in F039 waste and nonwastewater. Second, , .
this proposed change adds twelve new constituents (Acetonitrile,
Carbon disulfide, 2-Chloro-l,3-butadiene, Cyclohexanone, '
Diphenylnitrosamine, Methanol, N-Nitrosodimethylamine, Phthalic
anhydride, tris(2,3-dibromopropul) phosphate, Beryllium, Cyanides
(Amenable), and Thallium) to the F039 nonwastewater treatment '
standards that are currently only regulated for F039 wastewater. '
Merely referencing that the Universal Treatment Standards in 268.48 ;
apply to F039 in the 268 table does not simplify the issue. A list
of these F039 standard changes is provided below: .
268.48 Constituents Currently^ot Regulated Under F039
CONSTITUENT WASTEWATER BDAT NONWASTEWATER BOAT
* x.
1 ' ' ,
Acrylamide 19 > 23..
Benzal Chloride 0.055 6.0
824.
-------
2-Chloroethyl vinyl ether 0.062
NA
o-Nitroaniline
Pentachloroethane
Phthalicacid
0.27
0.055
0.055
14
6.0
28
F039 Constituents Currently Only Regulated As Wastewaters
CONSTITUENT CURRENT F039NWW BOAT, New UTS NWW LEVEL
NA
NA
NA
NA
NA
NA
1.8
43.8 TCLP
.28
.75 TCLP
13 '
.75 TCLP
28
2.3
0.10
0.014 TCLP
30
Acetonitrile
Carbon Disulfide
2-chloro-l ,3-butadiene
Cyclohexanohe .
Diphenylnitrosamine
'. NA
N-Nitrosodimethylamine
anhydride' NA
tris(2,3-dibromopropyl) phosphate NA
Beryllium . .NA
Cyanides (Amenable) NA
NA 0.078 TCLP
CWM does not support this proposed change. CWM believes that
the Agency must provide specific discussion and analysis as to why
it is necessary to add these compounds to the treatment standards
for F039. The F039 BOAT standards are based on the actual analysis
' . , of leachate samples from TSDFs. CWM sees no advantage in adding
random compounds just because they are found in 268.48. Tremendous
resources were expended by the leachate task force companies in the.
, development ofF039 standards for the Third Third final rule (55
Fed. Reg. at 22520). These proposed changes would force costly ,
recharacterization of multisource leachate at every on and off-site
. landfill hi the country. '''', . ".
Further, if the Agency maintains this change to the F039
treatment standards CWM strongly objects to the addition of
tris(2,3-dibromopropyl)phosphate to the list of NWW constituents
as the proposed treatment standard is not analytically achievable.
CWM has previously commented on the 0.01 ppm standard for this
compound, and EPA has not taken to resolve mis technical issue
pursuant to these comments. A. review of SW-846, Third
Ed., proposed Update IE, shows that the EPA has two methods that
are suitable for the analysis of the compound. One uses
gas chromatography (GC) and the other high performance
. liquid chromatography (HPLC); both with mass spectroscopic (MS)
Methanol
Phthalic
Thallium
825
-------
. detection systems. . .
Method 8270, using GC/MS, has an estimated quantisation limit
(EQL) of 0.2 ppm for ground water (page 8270C-35 of proposed Update
III). While no EQL is provided for tris(2,3-dibromopropyl)
, phosphate in solids, the EQL for a nonwastewater sample, like a
treatment residual prior to land disposal, will be at least one to /
two orders of magnitude higher than the EQL for ground water. This
suggests that the EQL for a solid sample will be approximately 10
ppm. The second approach, using UPLC/MS, is method 8321. This
gives a detection limit of 33 ppm and an EQL range of 113 ppm to >
172 ppm (page 8321A-35 of proposed Update III).
The above data, presented in EPA methods, clearly imply the ,
regulated community willbe expected to document achievement of .,
treatment standards that are substantially lower than quantitation
limits that can be attained in a laboratory. CWM strongly urges
that the EPA refrain from including tris (2,3-dibromopropyl)
phosphate hi the NWW standards forF039:
If the Agency maintains this change to the F039 treatment
standards as proposed, which CWM opposes, the Agency must amend the
proposed language in 268.40 for F039 wastewaters and
nonwastewaters. The proposed language needs to be amended to
reflect that fluoride is an exception for both of these waste
streams.
' ' i - ,,
RESPONSE:
The Agency has decided to maintain the existing F039 treatment standard (as promulgated under
the LDR Phase in rulemaking), rather than change it as proposed. The Agency's intent in
proposing the change to the FO39 treatment standard was to simplify the LDR regulations. EPA
did not intend to broaden the scope of the treatment standards for FO39. However, as the
commenter points out, the change to the FO39 treatment standard, as proposed, would have
resulted hi both a simplification of the regulatory language (e.g., eliminating the need fora
separate list of constituents for FO39) and a broadening of the scope of the standards (e.g.,
increasing the number of constituents applicable to FO39). Although the Agency could continue
to reference the list of constituents and the applicable UTS provided in §268.48 for FO39 and ,
expand the proposed list of exempt constituents for FO39, the result would be to complicate,
rather than simplify the regulatory language. Therefore, EPA is maintaining the existing
treatment standards for FO39, as listed at 40 CFR 268.40.
826
-------
DCN PH4P064
COMMENTER Dow Chemical > -
RESPONDER SS .
SUBJECT F039
SUBJNUM 064 . .
COMMENT . . . /
EPA is proposing that F039 wastes meet all the UTS for the '
constituents at 268.48, with the exceptions of fluoride, vanadium, .
and zinc. This presents a problem as more constituents are added
to the UTS list. For instance, the carbamate waste standards
added many constituents that are unique to those wastes. By .
applying UTS to F039. wastes, we could be pressured by regional and /
state inspectors or permit writers to analyze for these materials.
Ci^enUy, a generator can iise knowledge of the waste to determine ;
those constituents expected to be present in the F039 waste and
only analyze for those compounds. This ability to analyze for
appropriate compounds must be available should EPA choose to apply
UTS to F039 wastes. Dow recommends that UTS not be applicable to
. F039 wastes, however, should EPA do so, the use of process _ , ' .
knowledge should be expressly allowed to reduce the list of .
constituents required to be analyzed for F039 wastes. _ .. . '
i '. . ' ' . . '
RESPONSE:
The Agency has decided to maintain the existing FO39 treatment standard (as promulgated under
the LDR Phase III rulemaking), rather than change it as proposed. The Agency's intent in
proposing the change to the FO39 treatment standard was to simplify the LDR regulations. EPA
did not intend to broaden the scope of the treatment standards for FO39. However, the change to
the FO39 treatment standard, as proposed, would have resulted in both a simplification of the
regulatory language (e.g., eliminating the need for a separate list of constituents for FO39) and a
broadening of the scope of the standards (e.g., increasing the number of constituents applicable to
FO39). Although the Agency could continue to reference the list of constituents and the
applicable UTS provided hi §268.48 for FO39 and expand the proposed list of exempt
constituents for FO39, the result would be to complicate, rather than simplify the regulatory .
language. Therefore, EPA is maintaining the existing treatment standards for FO39, as listed at
40CFR268.40. , ' '
827
-------
DCN PH4P089
COMMENTER ASTSWMO
RESPONDER SS
SUBJECT F039
SUBJNUM 089 / /
COMMENT ,.--.''
9. The proposed simplification of the treatment standards for
waste F039 is appropriate as there is no need to separate the
treatment standards for FQ39 in the table under 40 CFR 268.40.
t '..*.' '
RESPONSE:
The Agency appreciates the commenter's stated support for the proposed change to the FO39
treatment standard. However, the Agency has decided to maintain the existing FO39 treatment
standard (as promulgated under the LDR Phase III rulemaking), rather than change it as
proposed. The Agency's intent in proposing the change to the FO39 treatment standard was to
simplify the LDR regulations. EPA did not intend to broaden the scope of the treatment
standards for FO39. However, the change to the FO39 treatment standard, as proposed, would
have resulted in both a simplification of the regulatory language (e.g., eliminating the need for a
separate list of constituents for FO39) and a broadening of the scope of the standards (e.g.,
increasing the number of constituents applicable to FO39). Although the Agency could continue
to reference the list of constituents and the applicable UTS provided in §268.48 for FO39 and
expand the proposed list of exempt constituents for FO39, the result would be to complicate,.
rather than simplify the regulatory language. Therefore, EPA is maintaining the existing -
treatment standards for FO39, as listed at 40 CFR 268.40.
828
-------
DCN PH4P097
COMMENTER Hazardous Waste Management
RESPONDER SS
SUBJECT F039 , ,
SUBJNUM 097
COMMENT
Simplification of Treatment Standard for Waste Code F039 (60 CFR
43679) ,
The Agency proposes to simplify the presentation of the treatment
standard for multisource leachate (F039). The Agency states that
with the promulgation of the UTS in the Phase IILDR rule (59 FR
47982) there is no longer a need for the separate list of .
constituents for F039 which currently appear in §268.40. Also,
the Agency proposes that F039 meet all the UTS for the constituents
in §268.48, with the exceptions of fluoride, vanadium, and zinc.
The Agency has understated the impact of such a change in its
preamble discussion. HWMA believes that the proposed change does
not simplify the F039 treatment standard. EPA's proposal actually
adds six new constituents (Acrylamide, Benzal Chloride,
2-Chloroethyl vinyl ether, o-Nitroaniline, Pentachloroethane, and
Phthalic acid) that have never been regulated in F039wastewater
and nonwastewater. In addition, the proposal adds thirteen new
constituents(Acetonitrile, Carbon Disulfide,
2-Chloro-l,3-butadiene, Cyclohexanone,
Diphenylriitrosamine, Methanol, N-Nitrosodimethylamine, Phthalic .
anhydride, tris(2,3-dibromopropyl) phosphate, Beryllium, Cyanides
(Amenable), Thallium, and Vanadium) to the F039 nonwastewater
treatment standards that are currently only regulated for F039 <
, wastewater. The Agency's statement that there is no longer a need
for a separate list of constituents implies that theitwo lists are
the same, except for fluoride, vanadium, and zinc. This is hot the
case and the Agency needs to reevaluate the impact of this proposed
. change. A detailed comparison of §268.48 and F039 standards
listed in §268.40 reveals the true impact of this change whether
intended or not Simply referencing' that Universal Treatment
Standards in §268.48 apply to F039 in the §268.40 table does
not simplify the issue. A list of these F039 standard changes is
contained in the tables below. ,
HWMA does not support this proposed change and believes the Agency
must provide specific discussion and analysis as to why it is now
appropriate to add these compounds to the treatment standards for
829
-------
F039 when it was originally determined that these constituents
were hot applicable to F039 when the standards were promulgated in
the Third Third rulemaking (5 5 ER 22520). If the Agency maintains
this change to the F039 treatment standards as proposed, it must
amend the proposed language in §268.40 for F039 wastewaters and
nonwastewaters. The proposed language needs to be amended to
reflect that fluoride is an exception for both of these
waste streams ' - ( ' . /
268.48 Constituents Currently Not Regulated Under F039
CONSTITUENT WASTEWATER BDAT NONWASTEWATER BDAT
Acrylamide 19
Benzal Chloride 0.055
2-.Chioroethyl vinyl ether 0.062
o-Nitroaniline 0.27
Pentachloroethane 0.055
Phthalic acid 0.055
23
6.0
NA
14
6.0
28
F039 Constituents Currently Only Regulated As Wastewaters
CONSTITUENT CURRENT F039NWW BDAT New UTS NWW LEVEL
Acetonitrile NA . 1.8
Carbon Disulfide NA 43.8 TCLP
2-chloro-l,3-butadiene NA .28
Cyclohexanone . NA .75 TCLP
Diphenylnitrosamine NA , ) 13
NA .75 TCLP
N-Nitrosodimethylamine NA 2.3 . .
anhydride NA 28
tris(2,3-oUbromopropyl),phosphate NA 0.10
Beryllium NA 0.014 TCLP
Cyanides (Amenable) NA 30
- NA -, 0.078 TCLP
Methanol
Phthalic.
Thallium
RESPONSE:
The Agency has decided to maintain the existing FO39 treatment standard (as promulgated under
the LDR Phase m rulemaking), rather than change it as proposed The Agency's intent in
proposing the change to the FO39 treatment standard was to simplify the LDR regulations. EPA
did not intend to broaden the scope of the treatment standards for FO39. However, as the
commenter points out, the change to the FO39 treatment standard, as proposed, would have
resulted in both a simplification of the regulatory language (e.g., eliminating the need for a
separate list of constituents for FO39) and a broadening of the scope of the standards (e.g.,
increasing the number of constituents applicable to FO39). Although the Agency could continue
830
-------
to reference the list of constituents and the applicable UTS provided in §268.48 for FO39 and
expand the proposed list of exempt constituents for FO39, the result would be to complicate,
rather than simplify the regulatory language. Therefore, EPA is maintaining the existing
treatment standards for FO39, as listed at 40 CFR 268.40. .
831
-------
832
-------
DCN PH4P008 ,'. ." : .
COMMENTER Florida DEP
RESHONDER PMC ,
SUBJECT MISC /
SUBJNUM 008 .-'-./.
COMMENT : / .
x.
Adopting ever more complicated rules is not going .to make the CWA,
CAA and RCRA interaction problem go away. Neither Option 1 nor
Option 2 resolves the conflicts between the statutes. .. .
One problem with current CWA and RCRA regulations is that NPDES
outfalls are not all on large rivers or streams. In several Florida
locations, only a seasonal creek or dry ditch would remain if the
discharge was eliminated. When does a discharge swale become a
stream? Effluent toxics leach from surface waste waters to the
ground water regardless of whether the disposal "unit" is a ditch, ^
a creek, a constructed impoundment, or a small lake.
It would be more sensible to adopt a realistic toxicity '
characteristic for wastewaters that included all hazardous _. '
. constituents. The characteristic should be applicable to all waste
waters, including POTW discharges. Failing that, EPA should combine
this issue with the contaminated media issue and make the
" wastewater" exit levels applicable to process wastewater mixed
with listed or characteristic wastes. It would eliminate the need /
for section261.3(a)(2)(iv). The risk analysis for waste water exit
criteria would have to be based on a realistic exposure analysis.
Children still play in contaminated ditches and streams.
It is not always easy to tell the difference between a land based
and non land based storage or disposal unit. Are drip pads sloped
to a sump for air craft stripping or electroplating .
operations ancillary equipment and part of a tank system? Or is the , \
drip pad a land based storage unit? If the pad has numerous
unsealed cracks and joints does it then become a land unit? If the >
a drip pad had a liner, leak detection and a containment wall that
complies with 40 CFR 265 Subpart J, it would be more clearly
ancillary equipment to a tank system? If a definition of land based waste water treatment
unit is adopted, EPA should also clarify the definition of "tank system"
pertaining to WWTUs as defined in 260.10. There areino -
tightness.standards for NPDES pretreatment systems. Releases of
hazardous constituents from leaking WWTUs have resulted in soil and
ground water contamination from both solvents and heavy metals. One
example is Honeywell in Clearwater, Florida. The facility has an
833
-------
extensive trichloroethylene plume beneath one of the buildings from
a hole between a sump collecting electroplating waste water
discharges and the pipe conveying .the waste water to the sewer.
(A vapor degreaser was located within the area drained by the
plating room drip pad.) This solvent plume was not detected in the
initial RCRA Facility Assessment or Investigation. It was only
found when Honeywell dismantled the plating line. Plating
facilities usually have duck boards on the floor of the room
between the tanks, making it impossible to do regular inspections
of the floor. The Honeywell release might never have been found or
reported if the facility did not have a RCRA permit
EPA does not know the scope of the contamination problem from
WWTUs because in most cases the releases are not reportable under
CERCLA. WWTUs develop slow leaks that do not release reportabie
quantities within 24 hours.
RESPONSE:
The issues raised by the commenters are beyond the scope of this rule. They
arose in response to the part of the original Phase IV proposal concerned with equivalent
treatment of decharacterized wastes. That part is moot, due to the Land Disposal Flexibility Act.
834
-------
DGN- PH4P008 ,
COMMENTER Florida DEP
RESPONDER PMC
SUBJECT M1SC ' .
SUBJNUM 008 ,
COMMENT
D001 RORGS Standard: This standard leaves a large loophole. Still
' bottoms that no longer exhibit a hazardous characteristic may stilt
have substantial concentrations of underlying hazardous
constituents. However further treatment is not.required, as EPA /
. considered the still bottom to be a newly generated waste and .
non-hazardous. The RORGS standards should also be amended to
. require process residuals from organ to recovery to meet the . ;
universal treatment standard prior to disposal, unless treated by
CMBST.
RESPONSE
Reconsideration of the RORGS (recovery of organics) standard for D001 wastes
is beyond the scope of the Phase IV rule. At this time, EPA believes the RORGS method of
treatment is sufficient to ensure minimization of threats to human health and the environment.
835
-------
DCN PH4P017 ;
COMMENTER -Kodak . ,
RESPONDER SS ;
SUBJECT MISC . ,
SUBJNUM 017 ,
COMMENT ,
Kodak supports the Chemical Manufacturing Associations comments
, on this rule and incorporates them by reference.
RESPONSE ~
The Agency notes the commenter's support for the comments submitted by Chemical
Manufacturers Association.
836
-------
DCN PH4P034 , . ,
COMMENTER CMA UIC Task Force
RESPONDER PMC
SUBJECT MISC ,'.:.. l .
SUBJNUM 034 .
COMMENT
Clarify that absent a change in the waste injected, facilities
with approved no migration exemptions may add waste codes for .
newly-identified characteristic wastes as a nonsubstantive
revision. ^ - ' .
RESPONSE -.'-;." -..-/
' , -.' _ ' ' . ' ^ .
The issue of revisions to no-migration petitions for UIC wells is beyond the
, scope of the Phase IV rule. The commenter may wish to contact the U.S.EPA Office of Water
with his suggestion. .
837
-------
DCN PH4P024 -
COMMENTER Union Camp ,
RESPONDER PMC,
SUBJECT MSC ;
SUBJNUM 024 ' / '
COMMENT »
EPA says sampling and analysis of sludge "are not overly
burdensome." Collecting representative samples is not only time ,
consuming and expensive, but also places an employee in a dangerous
location. Boats may be required for facilities not having
platforms or otherdevices to get to selected sampling points. This ,
would require at least two employees, one abackup to assist in the
event of accident.,
/ .
RESPONSE
The commenter's concern arises from the Phase IV proposal discussion of
management of sludges from surface impoundments holding decharacterized wastewaters. In
that proposal, EPA discussed three options for ensuring that underlying hazardous constituents in
decharacterized wastes were not released to the environment via leaks, sludges, and air emissions
from surface impoundments hi systems regulated by the Clean Water Act or Safe Drinking Water
Act (60 FR 43655). Decharacterized wastes are wastes which initially exhibited a hazardous
characteristic of ignitability, corrosivity, reactivity, or toxicity when generated but are no longer
characteristic). On March 16,1996, the President signed the Land Disposal Program Flexibility
Act of 1996, which provides that the wastes in question are no longer prohibited from land
disposal once rendered nonhazardous. As a result, on April 8,1996, EPA withdrew its treatment
standards for these wastes (61 FR 15660). Today's Phase IV final rule will not promulgate
provisions for managing leaks, sludges, and air emissions from surface impoundments (EPA
proposed options on August 22,1995 (60 FR 43655-43677)). Furthermore, the treatment
, standards for TC metal wastes hi today's rule do not apply to TC metal wastes if the
characteristic is removed and the wastes are subsequently treated in a unit that is regulated by the
Clean Water Act or, for underground injection wells, the Safe Drinking Water Act.
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-
year study to determine any potential risks posed by cross-media transfer of hazardous
constituents from these surface impoundments. The findings of this study, begun by the Agency
in April, 1996, may result in proposed regulations for these units, if risks are in fact found mat
would warrant such regulation.
838
-------
DCN PH4P113
COMMENTER Chemical Manufacturers Association .
RESPONDER PMC
SUBJECT MISC .-..'.' ,
SUBJNUM 113 , ' .' . .".
COMMENT
\ ,-'.-' / . .
2. Additional comments regarding general applicability. ,'. , <
> a) CMA requests that the Agency modify its process for adding
constituents to the UTS listing to recognize the impact on previous
waste determinations. . \
CMA is concerned that the Agency has proposed to expand the .
/ constituents list in the UTS to include the Carbamate constituents ^
not already included on that list. CMA understands the Agency's
rationale for doing this but is concerned that the financial _ ' -
' burdens such moves impose have not been well defined by the Agency.
' In discussions with the Agency about the phase III proposal, Agency
representatives have indicated that they recognize a burden is !
placed on generators when the UTS list is modified and have further
indicated they are reluctant to make frequent additions to the
list CMA concurs that frequent additions to the list will be
problematic for generators and treaters of wastes. Each time that a
new constituent is added, a reassessment of ".-.'.
all waste streams subject to UTS is required; See Attachment A: .
CMA Phase 111 Comments, p.55. CMA requests that EPA provide an
assessment of economic impact on waste generators for all future' , . ,
changes that are made to the UTS list.
RESPONSE:
The Agency recognizes there are costs involved when it changes the set of Universal Treatment
Standards (UTS).. For this reason, and to keep from making the Land Disposal Restrictions
program overly complicated, EPA makes only those changes it deems necessary.
839
-------
DCN PH4P099
COMMENTER Ohio EPA ' '',
RESPONDER PMC -
SUBJECT MISC
SUBJNUM 099
COMMENT ,
We are unclear as to whether Publicly Owned Treatment Works
(POTWs) are considered CWA or CWA equivalent treatment systems
receiving decharacterized waste. Many POTWs in larger cities
pretreat wastewater before entering the impoundment. However, some.
. small towns which do not pretreat may be significantly affected.
POTWs that potentially fall under this rule, if finalized, could
carry a heavy financial burden
DHWM has reviewed the study of cast results done by U.S. EPA. No
sufficient evidence was available in Ohio that showed the risks
justify the proposed control measures. DHWM is concerned that the
cost of the control measures will financially harm surface
impoundment facilities with no environmental gain.
RESPONSE: - ;
' ' »
In the August 22,1995 Phase IV proposal, EPA discussed three options for
ensuring that underlying hazardous constituents in decharacterized wastes were not released to
the environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). Decharacterized .
wastes are wastes which initially exhibited a hazardous characteristic of ignitability, corrosivity,
reactivity, or toxicity when generated but are no longer characteristic).. On March 16,1996, the
President signed the Land Disposal Program Flexibility Act of 1996, which provides that the
wastes in question are no longer prohibited from land disposal once rendered nonhazardous. As
a result, on April 8,1996, EPA withdrew its treatment standards for these wastes (61 FR 15660).
Today's Phase IV final rule will not promulgate provisions for managing leaks, sludges, and air
emissions from surface impoundments (EPA proposed options on August 22,1995 (60 FR
43655-43677)). Furthermore, the treatment standards for TC metal wastes in today's rule do not
apply to TC metal wastes if the characteristic is removed and the wastes are subsequently treated
in a unit that is regulated by the Clean Water Act or, for underground injection wells, the Safe
Drinking Water Act
However, the Land Disposal Flexibility Act does mandate EPA to undertake a 5-
year study to determine any potential risks posed by cross-media transfer of hazardous
constituents from these surface impoundments!. The findings of this study, begun by the Agency
in April, 1996, may result in proposed regulations for these units, if risks are in fact found that
would warrant such regulation. , -. " .
840
-------
DCN PH4P015 , . .
COMMENTER BPOil
RESPONDER SS . ,
SUBJECT MISC '
SUBJNUM .015 . '
COMMENT - ' . " _
BP Oil supports the comments being submitted by the American
Petroleum Institute(API) and incorporates those comments by
reference into these comments.
RESPONSE:
The Agency notes the commenter's support for the comments submitted by the American
Petroleum Institute (API). . \
841
-------
DCN PH4P018 .-..-. .
COMMENTER Mobil Oil .
RESPONDER SS s
SUBJECT MISC
SUBJNUM 018
COMMENT
Mobil wishes to formally support and hereby incorporate the . . ,
comments of the American Petroleum Institute.
RESPONSE:
The Agency notes the commenter's support for the comments submitted by the American
Petroleum Institute (API). :
842
-------
DCN PH4P028 . '
COMMENTER Texas Utilities Services
;RESPONDER SS
SUBJECT MISG . '
SUBJNUM 028
COMMENT
Texas Utilities is also a member of the Utility Solid Waste
Activities Group (USWAG), and support comments submitted by them
under separate cover.
RESPONSE:
The Agency notes the commenter's support for the comments submitted by the Utility Solid
Waste Activities Group (USWAG). .
843
-------
DCN PH4P033 -
COMMENTER CMA Carbon Bisulfide Panel
RESPONDER SS
SUBJECT MISC
SUBJNUM 033 : ,
COMMENT
The Paiiel endorses and supports the comments on generic policy and
technical issues separately submitted by CMA.
RESPONSE: . ~
The Agency notes the commenter's support for the comments submitted by the CMA.
844
-------
DCN PH4P037 -
COMMENTER Natural Gas Pipeline Comp . . " . ;
RESPONDER SS
SUBJECT MISC : ' : . .
SUBJNUM 037 , ,
COMMENT ,
The effective date of the land disposal restrictions for metals is
November 20,1995. This is unreasonable and must be extended to
allow for future planing and treatment of .wastes which are
currently in the disposal process. At least a year should be
provided to phase in these land disposal restrictions and ' v .
treatability requirements. . . . -
RESPONSE:
The date cited by the commenter, November 20,1995, was the final date of the public comment
period published in the Phase IV proposed rule on August 22,1995. The Agency has not yet
finalized new land disposal restrictions for metal wastes. The Phase IV Second Supplemental'
proposal, published concurrently with this final rule, proposes revised treatment standards for
metal wastes.
845
-------
DCN PH4P042 ' ,
COMMENTER Monsanto
RESPONDER SS . -.
SUBJECT MISC
SUBJNUM 042 ,.
COMMENT
Monsanto Company has provided substantial support to the effort by
the Chemical Manufacturers Association (CMA) to review and comment
on this rule. These comments are being submitted separately by
, CMA. However, they are referenced here in their entirety and
submitted by reference as the comments also of Monsanto Company.
For that reason, our comments here will be brief.
RESPONSE:
The.Agency notes the coramenter's support for the comments submitted by the CMA.
846
-------
DCN PH4PQ61
COMMENTER BP Chemical
RESPONDER SS ,
SUBJECT MSC
SUBJNUM 061 , . . '
COMMENT -
BP Chemicals has also participated in the development of the
comments submitted by Chemical Manufacturers Association (CMA)
and hereby incorporates by reference those comments in their
. _ entirety. :, ' . / : .''.,'.'...
RESPONSE: ,
" **.
. The Agency notes the commenter's support for the comments submitted by the CMA.
847
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DCN PH4P078 . , '
COMMENTER Battery Council International ,
RESPONDER SS
SUBJECT MISC
SUBJNUM 078
COMMENT , ., ' . - :
C. EPA Lawfully May Consider Economic and Policy Factors a Setting
' ' LDR Treatment standards '
The legislative history of RCRA Section 3004(m) indicates that ' . .
Congress intended the Agency to take into consideration all of the
foregoing factors, .including economic impact, when developing
treatment standards. For example, during consideration of S. 757 (later, incorporated
into H.R. 2867, the Hazardous and Solid Waste Amendments of 1984),
Sen. Chafee offered a floor amendment to Section 3004(b)(7), which
subsequently, became Section 3004(m). The amendment(Amendment No.
3409) was intended to clarify the authority of the Administrator
in establishing treatment standards applicable to land disposal
practices. In explaining his amendment, Sen. Chafee stated that ~
"{t}he requisite levels of methods of treatment established by the
Agency should be the best that has been demonstrated to be
achievable. This does not require a BAT-type process as under the . '
Clean Air or Clean Water Acts which contemplates technology-forcing
standards. The intent here is to require utilization of available
technology in lieu of continued and disposal without prior
treatment, it is not intended that every waste receive repetitive
or ultimate levels of methods or treatment, nor must all .
inorganic constituents be reclaimed." 40
The significance of these directives is apparent when they are
contrasted to the policies embodied in, for example, the Clean Air .
and Clean Water Acts. Those statutes expressly require development
of standards based on best available technology (BAT) .
without consideration of economic factors. 417 Here, Congress said
such restrictions should not apply. It thus authorized the Agency
to develop demonstrated technologies that were both technologically
and economically achievable, and consistent with other policies.
This conclusion is fully consistent with the Hazardous Waste
Treatment Council decision. There, the D.C. Circuit specifically
recognized that EPA's development of treatment standards under
Section 3004(m) "lies within the informed discretion of the Agency
as long as the result is that short-term and long-term .threats to
human health and the environment are minimized. 42 That discretion
necessarily extends to evaluation of economic impacts and
848
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balancing of other policy concerns.43 EPA itself recognizes that
" [t]he plain language of the statute [Section 3 004(m)] does not
compel the Agency to set treatment standards based exclusively on
the capabilities of existing technology. "44 .
RESPONSE: The Agency takes into consideration economic factors as much as possible in
setting land disposal restrictions. However, it is the Agency's view that courts have required that
treatment standards be based on what technology can achieve, to ensure that short-term and long-
term threats posed by the waste are minimized. See Phase IILDR rule, 59 FR 47982, September
19,1994. In any case, the Agency believes the commenter's concerns arise from the proposed
imposition of treatment standards for decharacterized wastes, an issue which is made moot for
the time being by the Land Disposal Flexibility Act
I-
849
-------
DCN PH4P086
COMMENTER American (3as Association ,
RESPONDED SS r ,.
SUBJECT; MISC .
SUBJNUM 086
COMMENT , . ;>...
The effective date of the land disposal restrictions for metals is
November 20,1995. This is unreasonable and must be extended to
allow for future planning and treatment of wastes that
are currently in the disposal process. At least a year should be . ;
provided to phase in these land disposal restrictions and .
treatability requirements.
RESPONSE:
The .date cited by the commenter, November 20, 1995, was the final date of the public comment
period published in the Phase IV proposed rule on August 22,1995. The Agency has not yet
finalized new land disposal restrictions for metal wastes. The Phase IV Second Supplemental
proposal, published concurrently with this final rule, proposes revised treatment standards for
metal wastes. ,
850
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DCN PH4P092
COMMENTER Union Carbide Corp.
RESPONDER SS ' ,
SUBJECT MISC ; ' r ,
SUBJNUM 092 .
COMMENT , . . ;
III. AUCC supports the proposed simplification for lab packs.
RESPONSE: . \, , . . . ' '
The Agency appreciates the commenter's stated support for the proposed simplification of the
LDR requirements for lab packs. .
851
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DCN PH4P101
COMMENTER Oregon DEQ
RESPONDER SS ,
SUBJECT MISC
SUBJNUM 101
COMMENT ,
The Oregon Department of Environmental Quality agrees with the
November 20,1995 comments submitted to the Environmental
Protection Agency by the Hazardous Waste Policy & Evaluation Task
Force of the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO).
"'" . '
RESPONSE: '
The Agency notes the commenter's support for comments submitted by the Hazardous Waste
Policy & Evaluation Task Force of ASTSWMO. J
852
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DCN PH4P106 ' . -
COMMENTER Phannaceutical Research ManufAssn :
RESPONDER SS
SUBJECT MISC V , '. '
SUBJNUM 106
COMMENT, .
PhRMA generally supports the comments submitted by the Chemical
Manufacturers Association ("CMA") on the proposed Phase IV Land
Disposal Restrictions. ' ' .' . '
RESPONSE: , ::
The Agency notes the commenter's support for comments submitted by CMA.
853
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DCN PH4P110 . ' '
COMMENTER AFS ! . .
RESPONDER SS
SUBJECT MISC ''',
SUBJNUM ilO ,
COMMENT , '''.
During the week of November 13,1995, in preparation for filing ,
comments on the U.S. Environmental Protection Agency's ("EPA's" or
the Agency's") proposed Land Disposal restrictions Phase IV Rule
("LDR Phase IV"), we attempted on numerous occasions to
obtain access to the rulemaking docket Because of the government
shutdown and/or the Agency's decision to relocate the docket, we
were unsuccessful in our attempts to obtain an appointment
to inspect the docket for informaiiun germane to our comments. See
attached declaration of Peter G. McHugh.
Accordingly, we request an extension of seven days to the comment
period in which to prepare and submit comments on behalf of the
American Foundrymen's Society ("AFS"). Based upon a November 20,
1995 telephone conversation with Ms. Susan G. Slotnick. Workgroup
Chair for LDR Phase IV, we understand the comment period has been
extended to 4:00 p.m. on November 27,1995. We intend to submit
comments on behalf of AFS by that date. We expect these comments
to be treated as if they were received on or before November 20,
1995. !
Also, after careful review of the rule and as thorough a review of the record as possible
(given the limited and inadequate access to the record), AFS believes the LDR Phase IV ,
rulemaking record is incomplete. .The defects in the record make it impossible for AFS to
adequately comment on the proposed rule in the time granted by the Agency for public
comment. Therefore, AFS reserves the right to supplement its comments in order to complete
and correct the record.
\ . . . N '. . . . '
RESPONSE:
The Agency apologizes for the unavoidable inconveniences presented by the government
shutdown during the final days,of the public comment period for the proposed rule. The Agency
did extent the comment period until November 27,1995. The commenter's comments were
received within this timeframe. The Agency reviewed all comments submitted in response to the
proposed rule during the Agency's deliberations for the development of the final rule.
854
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D.CN PH4P111
COMMENTER SSINA . , '
RESPONDER SS
SUBJECT MISC : , .'-.'
SUBJNUM 111 -
COMMENT ,
During the week of November 13,1995, in preparation for filing
comments on the U.S. Environmental Protection Agency's ("EPA's" or
"the Agency's") proposed Land Disposal restrictions Phase IV Rule
("LDR Phase IV"), we attempted on numerous occasions to ,
obtain access to the rulemaking docket. Because of the government
shutdown and/or the Agency's decision to relocate the docket, we
were unsuccessful in our attempts to obtain an appointment
to inspect the docket for information germane to our comments. See
attached declaration of Peter G. McHugh.
Accordingly, we request an extension of seven days to the comment >
period in which to prepare and submit comments on behalf of the
Specialty Steel Industry of North America ("SSINA").Based on a
November 20,1995 telephone conversation with Ms. Susan G.
; -Slotnick, Workgroup Chair for LDR Phase IV, we understand the
comment period has been extended to 4:00 p.m. on November 27,1995.
We intend to submit comments on behalf of SSINA by that date. We
expect these comments to be treated as if they were received on or
before November 20,1995. . '
. / Also, after careful review of the rule and as thorough a review of
the record as possible (given the limited and inadequate access to
the record), SSINA believes the LDR Phase IV rulemaking record is
incomplete. The defects in the record make it impossible for SSINA
to adequately comment on the proposed rule in the time granted by
the Agency for public comment Therefore, SSINA reserves the right
to supplement its comments in order to complete and correct the
record. . .. .
RESPONSE:
The Agency apologizes for the unavoidable inconveniences presented by the government
shutdown during the final days of the public comment period for the proposed rule. The Agency
did extent the comment period until November 27,1995. The commehter's comments were
received within this timeframe. The Agency reviewed all comments submitted in response to the
proposed rule during the Agency's deliberations for the development of the final, rule.
855
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DCN PH4P112
COMMENTER SMA
RESPONDER SS . - ,
SUBJECT MISC
.SUBJNUM 112
COMMENT During the week of November 13,1995, in preparation for filing
comments on the U.S. Environmental Protection Agency's ("EPA's" ,
or "the Agency's") proposed Land Disposal Restrictions Phase IV
Rule ("LDR Phase IV"), we attempted on numerous occasions to ' ' '
obtain access to the rulemaking docket. Because of the
government shutdown and/or the Agency's decision to relocate the. .
. docket, we were unsuccessful in our attempts to obtain an ~
appointment to inspect the docket for information germane to our ,
comments. See attached declaration of Peter G.-McHugh.
Accordingly, we request an extension of seven days ,to the
comment period in which to prepare and submit comments on behalf
of me Steel Manufacturers Association ("SMA"). Based on a
November 20,1995 telephone conversation with Ms. Susan G. ' '
.. Slotnick, Workgroup Chair for LDR Phase IV, we understand the
, comment period has been extended to 4:00 p.m. on November 27,
. 1995. We mtend to submit comments on behalf of SMA by that
date. We expect these comments to be treated as if they were
received on or before November 20,1995. Also, after careful
review of the rule and as thorough a review of the record as
possible (given the limited and inadequate access to the
record), SMA believes the LDR Phase FV rulemaking record is
incomplete. The defects in the record make it impossible for
SMA to adequately comment on the proposed rule in the time
granted by the Agency for public comment. Therefore, SMA
reserves the right to supplement its comments in order to
complete and correct the record.
RESPONSE:
The Agency apologizes for the unavoidable inconveniences presented by the government
shutdown during the final days of the public comment period for the proposed rule. The Agency
did extent the comment period until November 27,1995. The commenter's comments were
received within this timeframe. The Agency reviewed all comments submitted in response to the
proposed rule during the Agency's deliberations for the development of the final rule.
856
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DCN PH4P113 r x
COMMENTER Chemical Manufacturers Association
RESPONDER SS . ^ , . ,
SUBJECT MISC . '
SUBJNUM 113
COMMENT ' . ' .
IV. IMPROVEMENTS TO THE EXISTING LDR PROGRAM
A. EPA SHOULD GRANT AN EXEMPTION FROM LDR REQUIREMENTS
DURING UNINTENTIONAL RELEASES-OF HAZARDOUS MATERIALS.
CMA addresses here the issue of .whether LDR requirements should
apply to unintentional releases of listed and characteristic .
hazardous wastes. Despite best operating practices and engineering
design, there will be times when unintentional non-de minimis
spills and emergency releases will occur. Such discharges will '
trigger emergency responses that may require, for safety reasons,
the discharge of hazardous (listed or characteristic) or
decharacterized wastes into subtitle C or D surface impoundments.
Currently 40 CFR 264.1(g)(8) and 265.1(c)(l 1) exempt the facility
from Part 264/265 emergency response exemptions to eliminate the
risk of a regulatory violation during the immediate response to a
threatening situation, and thus, provide the facility with the ,. .'
maximum flexibility to address the situation.
CMA recommends that EPA amend 40 CFR 268.1 by adding the following
section to subsection(e): : _ .. . -
The following materials are not subject to any provisions of Part
268: ;. . - . ' " '."'.''' v ''
(6) Hazardous wastes that are unintentionally discharged, or
' materials which become hazardous waste after being unintentionally
discharged, provided that upon detection, they are promptly treated '
or contained. After the immediate response is over, further
containment, treatment, or disposal subsequent to that performed ' - ..
for emergency treatment or containment of such waste is subject to
all applicable ,
RESPONSE:
The Agency is aware that unintentional non-de minimis spills and emergency
releases occur, however it does not have the statutory flexibility to exempt nori^erninimis
releases from the LDR requirements. However, this situation would seem to be less of a concern
since the Land Disposal Program Flexibility Act of 1996. The legislation exempted . .
characteristic wastes that have been deactivated from LDR requirements if they are managed in
wastewater treatment systems regulated under the Clean Water Act (268.1 (a)(4)).
857
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DCN PH4A044. , . ' ' _.
COMMENTER Battery Council International .
RESPONDER SS ' .
SUBJECT MISC ,
SUBJNUM 044 ',
COMMENT II. BC SUPPORTS THE AGENCY'S EFFORTS TO ADDRESS RCRA
DEFINITION OF SOLID WASTE ISSUES, AND URGES THE AGENCY TO ACT ON
BC's TRANSPORTATION MANIFEST PETITION BC supports the Agency
's effort to address issues related to the RCRA definition of
solid waste in this rulemaking independently of the forthcoming ;
, proposed RCRA redefinition of solid waste rule, We believe BC's
petition regarding revisions to the RCRA regulations for
recyclable materials should be responded to in a similar manner
(that is, before the comprehensive rulemaking). In August 1994,
BC petitioned the Agency to modify the RCRA hazardous waste
transportation regulations (40 C.F.R. Parts 262 and 263) to . .
allow recyclable hazardous wastes identified in 40 C.F.R. Part
266 Appendix XI to be transported in commerce under a new
recyclable materials tracking document See attached petition.
, Under our proposed approach, the materials could be shipped
without a hazardous waste manifest, would not be subject to EPA
's transportation requirements and would not have to be shipped V
by a hazardous waste transporter. The new tracking document we
proposed, however, would require disclosure of the same
information as required by a hazardous waste manifest and thus,,
no data collection or tracking capabilities would.be lost. ,
Moreover, all substantive transportation requirements in EPA's . . ' ;
rules would still apply. The source of the requirements,
however, would be the Department of Transportation's (DOT's) ;
Hazardous Material Regulations, not EPA's regulations, The
petitions proposal would implement recommendations adopted by
EPA's Definition of Solid Waste Task Force, Moreover, in ..
. November 1994, we received a response from the Agency, stating
that BC's petition will receive "full consideration as the '.
Agency evaluates the range of possible changes in how recyclable
materials are regulated." 3 Then, in March 1995 , in response
to President Clinton'sreinventing government initiative, EPA
issued a report stating its intent to revise the RCRA manifest
system along the lines of the BC petition. However, no action ' :
yet has been taken Given the fact that EPA has begun a .
comprehensive effort to determine the appropriate RCRA
regulatory f framework for certain recyclable materials, as ,
858
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' . '1
reflected in this rulemaking and other past rulemakings. 4/ BCI .
believes that the Agency should address our petition in the
immediate future, It involves a far less contentious issue than
other def inition of solid waste issues. Furthermore, the
proposed modification would remove burdens on recycling without
jeopardizing the integrity of the solid waste program, which is
the prime purpose of EPA's redefinition of solid waste effort. .
Dear Ms. Browner: This is a petition for a modification of the
Environmental Protection Agency's ("EPA") hazardous waste
transportation regulations. 1 The petition requests limited
changes that would allow certain recyclable materials to be
shipped in commerce using a new recyclable materials tracking
document and not the Uniform Hazardous Waste Manifest, This
change would advance recycling; eliminate unnecessary costs and
fully protect public health, safety and the environment, the
proposed modification also is fully consistent with
recommendations adopted by EPA Is Definition of Solid Waste Task
Force after numerous meetings and months of study on ways to
remove burdens on recycling without jeopardizing the integrity
' of the solid waste program, Specifically, the Battery Council
International ("BCI") seeks a modification of EPA's
transportation rules (40 C.F.R. Parts 262 and 263) to allow
recyclable hazardous wastes identified in 40 C.F.R. Part 266
Appendix XI ("Appendix XI wastes") to be transported in commerce
under a new recyclable materials tracking document. In
addition, because the materials could be shipped without a
hazardous waste manifest, they would not be subject to EPA's
< transportation requirements and would not have to be shipped by
. a hazardous waste transporter. See 40 C.F.R. S °263.1O
Nevertheless, the new tracking document BCI is proposing would
require disclosure of the same information as required by a
hazardous waste manifest and thus, no data collection or .'
tracking capabilities would be lost Moreover, all substantive
transportation requirements hi EPA's rules would still apply.
The source of the requirements, however, would be the Department
of Transportation's Hazardous Material Regulations ("DOTs
HMR"), 49 C.F.R. Parts 170 to 179, not EPA's regulations,
From an environmental standpoint, recycling undoubtedly is the .
best way to manage the Appendix XI wastes. Yet, because the
existing hazardous waste transportation requirements have become
unjustifiably expensive, the present system, requiring the use
of hazardous waste manifests and hazardous waste transporters,
859
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is an impediment to recycling. Indeed, the costs of
transporting Appendix XI recyclable wastes to the recycling
facility under the existing system often exceeds the net value
created from recycling the materials, Where this is the case,
the current system creates economic disincentives for handling
the Appendix XI materials and is unjustifiable in light of the
fact that an alternative, less burdensome but equally protective
transportation scheme is available. Accordingly, BCI requests
that the EPA amend sections of the hazardous waste management
regulations, 40 C.F.R. Parts 260 to 299, so that (a) recyclable
hazardous wastes identified in 40 C.F.R. Part 266, Appendix XI,
may be transported in interstate and intrastate commerce for
recycling accompanied by a tracking document other than the
Uniform Hazardous Waste Manifest (40 C.F.R. Part 262, Subpart
B) and (b) these same wastes can be carried by an authorized
hazardous materials transporter other than a transporter meeting
all of the requirements of 40 C.F.R. Part 263 and any related
requirements imposed by various states.2/ BACKGROUND BCI is a
not-for-profit trade association representing commercial . * ' - .
entities involved in the manufacture, distribution, sale and
recycling of lead-acid batteries ("lead batteries"). BCI's
members include manufacturers and distributors of lead batteries ,
and the secondary smelters that reclaim or recycle lead .
batteries once they are spent BCI's membership represents
more than 99 percent of the nation's domestic lead battery
manufacturing capacity and more than 84 percent of the nation's
lead battery recycling or secondary smelting capacity, BCI
strongly supports lead battery recycling. BCI actively promotes
the enactment of mandatory recycling laws, sponsors campaigns to
encourage recycling and, through its members, is directly
involved in the recycling of lead batteries. In part as a result
of BCI Is efforts, thirty-seven states have adopted
comprehensive lead battery recycling laws and five additional
states have adopted disposal bans that have the practical effect
of forcing recycling. Due to these measures, the U.S. battery
lead recycling rate has been at or above 94 percent for the' last
three years. In addition to batteries, BCI's members also
collect and recycle other lead bearing materials. For example,
virtually all of the by-products generated in the course .of
producing a battery (e,g., baghouse dust, waste water
treatment sludge, plant scrap, dross, floor sweepings and
others) have recoverable lead values and are collected and sent
to secondary lead smelters for recycling. All of the recyclable
860
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materials coming to, or produced at, a secondary lead smelter .
are recycled, including first-run slags, baghouse dust,
treatment sludge and plastic casings. Recyclable materials
handled by BCI's members are identified in 40 C.F.R. Part266
Appendix XI.. This appendix lists those recyclable wastes that
are so similar in character to primary materials that they are
considered feedstock, not wastes, when reclaimed. See 40 C.F.R.
Part 266, Subpart H. Appendix XI materials are generated by
manufacturers, assemblers and other entities hi the lead
processing and affiliated industry. Once generated, the
materials either are collected by or sent to secondary smelters
for reprocessing. Certain Appendix XI materials also are
generated by secondary smelters who send them to other smelters
for further reprocessing and recovery of lead. DISCUSSION A.-
The Issue Some Appendix XI materials are regulated as hazardous
wastes when reclaimed, When these materials are transported from
one location to another, they must be accompanied by a Uniform
Hazardous Waste Manifest and the generator and transporter must
comply with the relevant portions of 40 C.F.R. Parts 262 and
263. These regulations require that shipments meet the
applicable packaging, labeling, marking and placarding standards
in DOTs HMR, Transporters also must comply with all applicable
requirements in the HMR, must have a valid EPA identification
number, and must respond to any discharge or release occurring
during transportation. See 40 C.F.R. °° 262.30 to 262.33.
Notably, with the exception of the transporter's obligation to
have an EPA identification number, the packaging, labeling,,,
marking, placarding and other transportation related
requirements imposed under EPA's rules (Parts 262 and 263) are
identical to those required for common carriers of hazardous
materials under the HMR. That is, the requirements that
presently apply to shipments of Appendix XI materials would
still apply by virtue of the HMR even if EPA's Parts 262 and 263
rules did not exist See 49 C.F.R. ° 172.101 While there is
no difference in the substantive requirements, involved in
handling Appendix XI materials under EPA ts Parts 262 and 263
rules or the DOT's HMR, the costs Associated with shipping
under the two schemes are significantly different RCRA
hazardous waste must be transported by a licensed hazardous
waste hauler. The cost of shipping a RCRA manifested hazardous
waste in a hazardous waste hauler is much higher than the cost
of shipping essentially the same material in a common carrier
licensed to carry hazardous materials. In an informal survey .
-------
conducted by one BCI member, the costs of shipping RCRA
manifested hazardous wastes were more than double the cost of
shipping DOT hazardous materials even though in all instances
the materials being transported were fundamentally the same.
The cost differential between shipping under RCRAls rules and
the HMR is attributable primarily to additional requirements
imposed by various states on transporters of materials requiring
a RCRA hazardous waste manifest, These extra state
requirements include such things as special training or
equipment, higher limits for liability insurance, local taxes or
fees and additional reporting requirements. See, e.g.,
Pennsylvania Code, Title 25, ° 263.23 (imposing a hazardous
waste transportation fee on transportation of manifested wastes '
paid into the State Hazardous Sites Cleanup Fund) ; Alabama
Hazardous Waste Management Regulation, ° 335-14-4-04 (requiring
applicants for transporter permits to submit a performance bond
guaranteeing compliance with,, among other things,, the ,
regulations, permits, orders and corrective action measures);
Arkansas Hazardous Waste Management Code, °° 16, ll(r)
(charging $2 .00 per manifest issued); Maryland Hazardous Waste
Rules ° 26.13.04 (requiring hauler certificates, performance
bonds, special training for drivers and instructors of drivers,
annual registration fees on cabs, containers and trucks, vehicle
inspections); New York Waste Transport Permits Regulations °
364,5 (requiring $5,000,000 in liability insurance for vehicles
carrying 10,000 pounds or more of wastes requiring manifest;
federal requirements are $ 1,000,000 in liability insurance).
States impose additional requirements either because they
perceive a need for tighter restrictions on hazardous waste
transporters than on common carriers or, as is evident from some
of the state schemes, because they see this area as a potential
source of additional revenues, The motive in some cases may be
both. Regardless of the reason, BCI is confident that no state
has focused on the adverse impact these added transportation
rules have on legitimate recycling. Moreover, neither the DOT
nor EPA have concluded that the vast array of additional
requirements imposed by states are necessary to protect the
public health, safety or me environment To the contrary, EPA
's Definition of Solid Waste Task Force found that the high
costs arisingifrpm the added state requirements adversely affect
the waste management system. The added cost eliminates
competition between carriers as fewer carriers are willing to
compete in the hazardous- waste transportation market with the
862
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added requirements and associated increased burdens and cost of
doing business. Further, the fact that requirements vary from
state-to-state adds to the complexity and cost. And, as noted
above, the higher costs of transportation create a disincentive
to recycling where the recyclable materials have a low recovery '.
value relative to the high cost of transporting the material to
the recycling facility. Because it is impracticable to seek
changes on a stateby-state basis, BCI requests a federal
response. B. The Solution Transporting Appendix XI hazardous
wastes destined for recycling under EPA's rules costs twice as
much as shipping the same materials under the HMR, The
substantive requirements of EPAI's rules and the HMR are ,
virtually identical,, and no added protection to health, safety
or the environment is gained by the additional costs. Yet, the
added cost of EPA's niles affects the efficiency of the
hazardous waste management system by .reducing competition and
impeding a preferred method of managing'certain recyclable
wastes, EPA could eliminate these disincentives to recycling by .
adopting a rule applicable to Appendix XI materials that would
allow those materials to be shipped in commerce with a
"Recyclable Materials Tracking Document" and not a hazardous
waste manifest: The Recyclable Materials Tracking Document
would require the same information as a hazardous waste manifest
with the exception of certain information that is relevant only
to shipments under Parts 262 and 263,, e,g.,, a transporter's
U ,S. EPA ID Number,, waste minimization certification and land
disposal restriction notification. 3/ Like the manifest,, the
tracking document would follow the shipment to its destination
and the receiving entity would be required to acknowledge
receipt, noting any discrepancies. Because Appendix XI materials
would not be required to be transported with a manifest, ,
transporters of these materials would not have to comply with 40
C.F.R. Part 263. See 40 CFR S 263,10, Nevertheless, as noted
above, all of the requirements that would have applied (e.g.,
labeling, placarding) will still apply pursuant to the HMR.
Finally, under BCI's proposal, a state or EPA's ability to
track shipments and the substantive shipping requirements will
not change. What will change, however, is that the state
requirements applicable to shipments requiring a Uniform
Hazardous Waste Manifest will not apply to Appendix XI materials
unless the states, after notice and open debate, determine such
requirements are heeded for this limited class of recyclable
materials. BCI appreciates your attention to this matter and
863
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.stands ready to provide whatever additional information you may
need in conducting your evaluation of this request. I/ This
petition is submitted in accordance with Section 4 (e) of the
Administrative Procedure Act, 5 U.S.C, S553(e), 21 Not all
of the wastes listed in Appendix XI are hazardous wastes when
being reclaimed. The transportation of nonhazardous wastes,
while not subject to the requirements of the Solid Waste
Disposal Act ("RCRAII) set forth in 40 C.F.R, Parts 262 and
263, may be subject to similar state transportation
requirements, i.e., California ts transportation rules.
Accordingly, this petition is intended to cover all Appendix XI
wastes whether or not they are RCRA hazardous wastes subject to
the manifesting and transportation related requirements in 40
C.F.R. Parts 262 and 263 ,3/ The waste rriinimization
certification would not be applicable to materials shipped under
a Recyclable Materials Tracking Document because it would be ,_
understood that these materials were to be recycled and the
generator thus was engaged in waste minimization. For the same
reasons, a land disposal restriction notification would be
unnecessary. ,
RESPONSE :'
The commenter's request for approval of a previously submitted petition is beyond the scope of
the today's final rulemaking.
864
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DCN PH4P065
COMMENTER Safety-Kleen Corp. ,.'
RESPONDER HM . \
SUBJECT POG .-.,;.
COMMENT 3.- EPA should finalize the "point of generation" rulemaking
prior to promulgation of the final Phase III and Phase IV LDR
regulations. In the preamble to the proposed Phase III LDR
regulations (60 FR 11702), the Agency requested comments on
potentially altering the "point of generation" definition as it
applies to wastewater streams. Safety-Kleen understands that
the Agency will respond to the received comments in an upcoming
rulemaking specifically addressing point of generation. ,
Obviously, the Agency's proposed rulemaking may have a
significant impact on the applicability of the Phase IV LDRs, -
because the basic applicability questions are premised oh waste
character at the point of generation. If the definition of a
waste's point of generation is revised (i.e., to process limits . .
or battery limits), some wastes will not be defined as hazardous
and will exit the RCRA system (e.g., due to aggregation and .
resulting incidental treatment close to the originating . \
process). Thus, a facility might be required to spend < . ' y
significant money developing a program to comply with the Phase
III and Phase IV LDR programs, which would subsequently become
completely unnecessary under the revised definition of point of
' generation. Safety-Kleen strongly recommends that the Agency^
complete its point of generation rulemaking prior to the ' , .
promulgation of the final Phase III and Phase IV regulations, to,
allow the regulated community to implement complying programs
without the concern that the applicability may change at a later
date." . ' , . - .''".-.
RESPONSE
f . . ' *-
The Agency thanks the commenter for supporting EPA's re-examination of the point of
generation issue. EPA did propose several point of generation options in the Phase III
rulemaking, however, many of the point of generation issues were resolved when, on March 26,
1996, President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This
Act provided, among other things, that decharacterized wastes treated in CWA-regulated units
are no longer prohibited from land disposal so long as they are hot hazardous wastes at the point
they are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule. * .
865
-------
DCN PH4P015
COMMENTER BPOil . <
RESPONDER HM - ' '
SUBJECT POG
SUBJNUM . 015 '' : ',.'''
COMMENT
In addition, the court's decision in no way affected the current
"treatability group doctrine" or indicated that it should be
invalidated or discarded.
RESPONSE ,
> '
The Agency agrees with the commenter that the court decision did not invalidate or discard the
treatability group doctrine.
866
-------
DCN PH4POI5 ' ,
COMMENTED BP Oil . .
RESPONDER HM
SUBJECT POG . ' '
SUBJNUM 015 .
COMMENT ' ' < . , .';-;
Point of generation issues are generally difficult in the overall . ,
land disposal restriction (LDR) program but are especially onerous . ' '
regarding the Phase IV proposals and for the SubpartCC air
emission rules. We Support EPA's planned re-examination of
these issues.
Current requirements concerning the "point of generation" include
.sampling and analysis of each individual waste stream at its source
to determine whether or not it is hazardous and to determine
whether or not it exceeds applicable volatile organic
concentration levels. This requires extensive, extremely costly and
sometimes technically impossible sampling and analysis programs.
Method 25D for determining the volatile organic concentration is
very costly to perform, and laboratories capable of performing the
analysis are difficult to locate. In many cases it is impossible to
separate wastewater streams for individual sampling. Taking into
account variability or attempting to determine annual average
concentrations only increases the number of samples that must be
. collected and analyzed. In the Phase IV rulemaking, the point of
generation that makes sense for aggregated,
non-hazardous wastewater is sampling and analysis at the point
where the wastewater enters the surface impoundment.
RESPONSE
The Agency thanks the commenter for supporting EPA's re-examination of point of generation
- issues. Many of these issues were resolved when, oh March 26,1996, President Clinton signed
into law the Land Disposal Program Flexibility Act of 1996. This Act provided, among other
.things, that decharacterized wastes treated in CWA-regulated units are no longer prohibited from
land disposal so long as they are not hazardous wastes at the point they are land disposed. The .
Act also required that EPA study the characteristics of such decharacterized wastes. If at some
future time, the Agency determines that certain decharacterized wastes require LDR treatment
standards, the EPA will revisit the options for point of generation that were presented in the
Phase III rule. . .
867
-------
DCN PH4P015
COMMENTER BPOil /
RESPONDER HM
SUBJECT POG
SUBJNUM 015 . , ; .
COMMENT
t ,
The issues being addressed in this rulemaking have the potential , .
to require significant costs with little apparent benefit. The
Agency should determine in the Phase III and Phase IV RULEMAKING
that meeting the UTS at the NPDES discharge point of a CWA system
which includes non-hazardous surface impoundments satisfies the .
findings of the court and that further requirements are not needed. -
RESPONSE ,
The Agency did propose several point of generation options in the Phase III rulemaking,
however, many of the point of generation issues were resolved when,, on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act
provided, among other things, that decharacterized wastes treated in CWA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule. , ' '
868
-------
I
DCN PH4P017 .
COMMENTER Kodak
RESPONDER HM
SUBJECT POG ' . '
SUBJNUM 017 ; . .
COMMENT \
Additionally, sludge from a non-hazardous surface impoundment
would be regulated as a hazardous waste if it has hazardous '
characteristics, because the sludge is considered a new point of ...
generation for listing determinations. :, x.
RESPONSE
! ' \
The Agency did:propbse several point of generation options in the Phase III rulemaking,
however, many of the point of generation issues were resolved when, on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996; This Act
provided, among other things, that decharacterized wastes treated in CWA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they .
'are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, .the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule.
869
-------
DCN PH4P022 ; ,
COMMENTER Phelps Dodge .. , ;
RESPONPER HM , ,
SUBJECT POG
SUBJNUM 022
COMMENT :
PDC supports EPA's proposal to clarify the point of generation as
applied to separate waste streams that are routinely aggregated as *
part of a series of manufacturing processes associated with making
a single product. PDC believes that this concept should be
expressly recognized in the mining context especially for waste
streams that have been routinely aggregated as an efficient and l -
environmentally sound wastewater management practice.
RESPONSE , '
The Agency thanks the commenter for supporting EPA's re-examination of point of generation
issues. Many of these issues were resolved when, on March 26, 1996, President Clinton signed
into law the Land Disposal Program Flexibility Act of 1 996. This Act provided, among other
things, that decharacterized wastes treated in CWA-regulated units are no longer prohibited from
land disposal so long as they are not hazardous wastes at the point they are land disposed. The
Act also required that EPA study the characteristics of such decharacterized wastes! If at some
future time, the Agency determines that certain decharacterized wastes require LDR treatment
standards, the EP, A will revisit the options for point of generation that were presented in the
Phase III rule;
870
-------
DCN PH4P022 , . .
COMMENTER Pheips Dodge
RESPONDER HM ,
SUBJECT POG
SUBJNUM 022 . - ,
COMMENT .
III. PDC Supports EPA's Proposal to Redefine the Point of
Generation for Commonly aggregated Waste Streams arid Believes that
the Proposal Should Extend to Routine Aggregation of Processing
, Streams That Occurs in the Mining Context.
PDC supports EPA's Phase III proposal to clarify the point during
, an industrial process at which a waste is generated and the LDRs
become applicable. .60 Fed. Reg. at 11,715-17. The proposal would
allow for routine aggregation of waste streams from related
manufacturing processes before RCRA regulation and the LDR dilution
prohibitions would attach. The proposal also would recognize that -
the routine aggregation of waste streams from a related
manufacturing processes "a normal part of the process that results
in the waste" and therefore "can be taken into
account [or allowed] in establishing concentration levels." 60
Fed. Reg. at 11,707 (citing S. Rep. No. 284,98th Cong., 2d Sess.
, 17).
PDC supports EPA's point of generation proposal as applied to each
of the three options contemplated including the "battery limit"
option. The "battery limit" option is necessary to recognize
routine wastewater treatment practices occurring at mining
facilities. For instance, a common practice at many integrated
copper mining facilities is the aggregation of mineral processing
wastes (e.g., acid plant blowdown) with tailing as part of the
facilities' wastewater management practices. PDC believes that such
, longstanding practices should be allowed under EPA's "battery
limits" option since the manufacturing steps producing the mineral
processing wastes and the tailing constitute an entire battery of
processes that are associated with making a single product (i.e.,
anode copper). Additionally, the aggregation of tailing with
mineral processing streams often is environmentally beneficial due
to the stabilizing and neutralizing affect of the tailing. PDG
further believes that the appropriate point for determining LDR .
compliance and point of generation issues is at the point that an
aggregated waste stream exits the wastewater treatment unit, which
in the mining context is a necessary component of the . .
manufacturing process. ,
Accordingly, PDC requests mat" EPA account for existing waste
871,
-------
management practices that occur at mining facilities in applying
LDR requirements. Specifically, PDC believes that EPA should adopt . .
the Phase III point of generation proposals, including the ,
"battery limits" option, and , . N
clarify the option's application to waste streams commonly
aggregated and managed at integrated mining facilities. ,
RESPONSE
The Agency thanks the commenter for supporting EPA's re-examination of point of generation
issues. The Agency did propose several point of generation options in the Phase III ralemaking,
however, many of these issues were resolved when, on March 26, 1996, President Clinton signed
into law,the Land Disposal Program Flexibility Act of 1996. This Act provided, among other
things, that decharacterized wastes treated in CWA-regulated units are no longer prohibited from
land disposal so long as they are not hazardous wastes at the point they are land disposed. The
Act also required that EPA study the characteristics of such decharacterized wastes. If at some
future time, the Agency determines that certain decharacterized wastes require LDR treatment .
standards, the EPA will revisit the options for point of generation that were presented in the
Phase fflrule. ' . . ,
872
-------
»
. ....
DCN PH4P022 . ,
COMMENTER Phelps Dodge , .-
RESPONDER HM
SUBJECT POG .',
SUBJNUM 022 . ^
COMMENT '--.' '-..." ' . ; . . ' ''..-
In its discussion of Option 2, EPA presents several situations ,
which would be excluded from the Option 2 controls. 60 Fed. Reg. at
43,660. For example, wastewaters that meet the UTS at the point of,
generation would be excluded. Additionally, wastewaters that do.
not exceed 100 parts per million by weight ("ppmw") of total
volatile organics on an annual average determined at the point of
generation would not be subject to the air emission controls. PDC '
believes that these exemptions should not be determined at the .
point of generation. Rather, as noted above, PDC believes that the
. application of these exclusions should be determined after
treatment has occurred to remove the characteristic. It simply
does not make sense to apply controls to surface impoundments that
manage wastes which do not pose risks to the environment or human
x health after decharacterization. Additionally, it- is difficult "
to determine the effectiveness of treatment and/or controls when
/ the wastes already satisfy the UTS or are already within a certain
concentration of total volatile organics.
' - ' . , . ' > ' _ . . ..
RESPONSE
',"'"
The Agency did propose several point of generation options in the Phase III rulemaking,
however, many of the point of generation issues were resolved when, on March 26, 1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act
provided, among other things, that decharacterized wastes treated in CWA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented m the Phase III rule. .
"'.- 873
-------
DCN PH4P024
COMMENTER Union Camp ,
RESPONDER HM
SUBJECT POG
SUBJNUM 024
COMMENT,
H. Redefine the "point of generation" to unit process
EPA heeds to redefine the "point of generation" definition in
order for the Pollution Prevention exemption to be useful. UCC sees '.'_,'
a significant problem in attempting to use the Pollution Prevention ,
Compliance Alternative as a way to obtain an exemption from the
Phase IV regulations by the shear number of points of generation
that would likely have to be analyzed.
RESPONSE v ,'..-- ''',;'
1 ' * *
The Agency did propose several point of generation options in the Phase III rulemaking,
however, many of the point of generation issues were resolved when; on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act
provided, among other things, that decharacterized wastes treated in C WA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule.
874
-------
DCN PH4P024 .
COMMENTER Union Camp ', ' .
RESPONDER .HM ' , ,
SUBJECT POG ,
SUBJNUM 024 > , ;
COMMENT
A manufacturing facility may have significant number of
. characteristic waste streams which would need to be sampled and
analyzed to determine the total amount of a specific UHCs that is
generated at the facility. This enormous amount of points will
create a huge amount of costs associated with sampling and ' x .
analysis, and deciding which streams to address in
minimizing pollution. Further it will be difficult to demonstrate .
compliance with the exemption. Such a situation will likely keep
facilities from even considering using this exemption criteria
with the subsequent disadvantage that the facilities are addressing '
, . treatment of wastes as opposed to minimizing the generation of
wastes. * , .
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in C WA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
875
-------
DCN PH4P024 ;
COMMENTER UnionCamp ,
RESPONDER HM ;.
SUBJECT POG ' ' .
SUBJNUM 024 .
COMMENT _ ,
There is a need to redefine "the point of generation" in order to
make this exemption at all appealing. Such a redefinition was
discussed in Section IV.D of the LDR Phase III proposal (60 FR
11702). Locating the point of generation to the "unit process" or
the "battery limit11 of the facility units would significantly '
reduce the number of waste streams that would need to be addressed
when using the Pollution Prevention exemption option. This will
make this option much more workable to facilities with the ultimate
advantage of promoting Pollution Prevention. . . . ' ' .
\ , ,
RESPONSE . . , '
i
The Agency did propose several point of generation options in the Phase III rulemaking
(including unit process and battery limits), however, many of the point of generation issues were
resolved when, on March 26,1996, President Clinton signed into law the Land Disposal Program
Flexibility Act of 1996. This Act provided, among other things, that decharacterized wastes
treated in CWA-regulated units are no longer prohibited from land disposal so long as they are
not hazardous wastes at the point they are land disposed. The Act also required that EPA study
the characteristics of such decharacterized wastes. If at some future time, the Agency determines
that certain decharacterized wastes require LDR treatment standards, the EPA will revisit the
options for point of generation that were presented in the Phase III rule. '
876
-------
DCN PH4P024
COMMENTER Union Camp
RESPONDER HM ,
SUBJECT POG \ : ' ' '.*
SUBJNUM 024 .
COMMENT " , .'..- . ;
It is WCC's recommendation that EPA redefine the definition of
"point of generation" to be the "unit process" as recommended by :
UCC and AF&PA during the Phase III comment period. UCCalso
believes other option discussed during the Phase III comments such
as "battery limits" are also plausible. .
RESPONSE , "''..
' . ",*> . ' '' .
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
. disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
877
-------
DCN PH4P024 "
COMMENTER UnionCamp ,
RESPONDER HM
SUBJECT POG
SUBJNUM 024 , , ' .
COMMENT
I> EPA should complete the change to the "point of generation"
definition prior to promulgation of any Phase IV regulations.
In the preamble to the proposed Phase III LDR regulations (60 FRI
1702, Sec. IV.D) EPA requested comments on changing the definition
of point of generation as it applies to wastewater streams. The
regulatory community is waiting to see how EPA will react to
the received comments. EPA's reaction could have a significant
impact on the applicability of the Phase IV LDRs since two of the
basic applicability questions are "Is the waste a hazardous waste
at the point of generation?", and "Does the decharacterized waste
contain underlying hazardous constituents at concentrations greater
than their respective Universal Treatment Standard levels at the
point of generation of the decharacterized waste?"
EPA should complete its review of potentially altering the "point
, of generation" definition prior to the promulgation of the Phase IV
regulations so that the regulated community can determine the,
impact of the regulations without the concern that the , ' '
applicability may change at a later date. Therefore, EPA should not
promulgate Phase IV regulations until it has announced any changes
to the definition of the point of generation.
RESPONSE
The Agency did propose several point of generation options in the Phase III rulemaking,
< however, many of the point of generation issues were resolved when, on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act
provided, among other things, that decharacterized wastes treated hi C WA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed' The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future time, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule. - '
878
-------
DCN PH4P024
COMMENTER Union Camp v
RESPONDER HM .
SUBJECT POG .
SUBJNUM 024 , ,
COMMENT
UHC brought in from other waste streams (not hazardous in past) " .
may be carried into CWASIs and transferred to sludge to increase , '
UHC above UTS. Treatment of the regulated constituents brought in
from non hazardous wastes should not be subject to Phase IV
control. ' .'",.__
Sludges are not always disposed in landfill. Some may be ^
beneficially used as is done at several of our paper mills for its :
nutrient and soil conditioning value. Also it is very common for
municipal sludge to be utilized in this manner instead of being , -
disposed into a landfill. These sludges serve useful purposes and
should riot be subject to pretreatment for UHC's prior to land
application. For example, WCC's Prattville, Al mill uses sludge
from its one selected CWASI on crop land for its nutrient value and
water retention value. Many states and local governments have rules
oh land application which are protective of human health
and environment., .
s .
/ f
RESPONSE - ;
Today's rule does not address the issue that the commenter raises because it is outside the scope
of the rule. However, EPA shall consider this issue in the future.
879
-------
DCN PH4P024 .
COMMENTER Union Camp
RESPONDER HM -.-...
SUBJECT POG .
SUBJNUM 024 ,
COMMENT ; '' .,'.'
Other sludges high in fiber may be used for fuel value and should
not be subject to pretreatment for UHC's. Any UHC's would be
controlled by pollution control devices on the combustion unit or
destroyed by die combustion process. ,
RESPONSE '' , ' ' i ' i
This issue is outside the scope of today's rule. The Agency will, however, consider this issue in
the future. \ '' /
880
-------
DCN PH4P024
COMMENTER Union Camp '" - .
RESPONDER HM
SUBJECT POG ..-..' v
.SUBJNUM 024 ' :" .
COMMENT . - ' .. ' "
We agree vvith the EPA that sampling for only UHC identified in the
characteristic wastewater at the point of generation. Sampling for
sludges prior to removal may be required under EPA's proposal. If
sludge is removed and stockpiled while awaiting sampling &
; analysis, improper management could be construed. How will this be
, addressed by EPA?
' '
RESPONSE . '
Today's rule does not address the issue that the commenter raises because it is outside the scope
of the rule. However, EPA shall consider this issue in the future.
881
-------
DCN PH4P024 .
COMMENTER Union Camp
RESPONDER HM
SUBJECT POG .--..
SUBJNUM 024
COMMENT .
Sludge (p. 43673 2 col) EPA says sludge in place to a release
pathway separate from the leaks pathway. We agree with this and
also feel sludges in place would tend to retard any leakage due to
the build up of sludge and other fine particles.
RESPONSE \
The Agency thanks the commenter for supporting EPA's position on sludge.
882
-------
DCN PH4P031
COMMENTER Department of Energy
RESPONDER HM
SUBJECT POG
SUBJNUM 031. . . <
COMMENT
f 2, .p. 43663, col. 2 -EPA indicates that management standards '. .
are described for controlling leaks, sludges, and air emissions
from surface impoundments accepting decharacterized wastes. EPA
seeks comment on these standards, "including the possibility of .
adopting standards for certain of the potential problems and
not others, e.g., finalizing standards for leaks and air emission
control, but not for sludge control." .
If EPA.decides to promulgate an Option 2 regulatory program, DOE
would support not adopting standards for sludge control. As in
previous Departmental comments on LDR-related notices, DOE urges
EPA to allow evaluation of wastewater treatment system surface
impoundment sludges on their own merit, using either sampling and
analysis or process knowledge to determine what management is ,
warranted m order to protect human health and the environment.
This approach would allow control of such residuals when
appropriate, but would not require continued control when the
residuals no longer pose risks to human health or the
environment. Comment I.H.S.b, item 1 below offers additional ^
remarks on why it should not be necessary to impose controls on
sludges.
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they'are land
disposed. "The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. v '
883
-------
DCN .. PH4P031 . :
COMMENTER Department of Energy
RESPONDER HM.
SUBJECT POG ;, ,
SUBJNUM 031
COMMENT
I.H.4.b. Applicability .
1. p. 43669, col. 1 - EPA defines the term "regulated
constituents" as UHCs that are present in characteristic wastes at
the point of generation and prior to decharacterization at
concentrations that are greater than UTS levels. The Agency
further indicates that:
"Only these regulated constituents must be considered in complying
with the management standards for leaks. UHCs present hi a
characteristic waste at levels less than or equal to UTS are not
subject to the proposed management standards for leaks."
DOE believes that defining the term "regulated constituents" in
the manner suggested here is unnecessary and will likely cause
confusion. EPA has promulgated a definition for
"underlying hazardous constituent" (UHCs) which reads as follows:
Underlying hazardous constituent means any constituent listed in
, : §268.48, Table UTS - Universal Treatment Standards, except
vanadium and zinc, which can reasonably be expected to be present
at the point of generation of the hazardous waste, at a
concentration above the constituent-specific UTS treatment
standards[40 CFR 268.2(1); 60 FR 244, January 3,1995].
However, EPA seems to ignore the existing definition of UHC in its
formulation of the new definition for "regulated constituents."
DOE suggests that by using "UHC" in a manner inconsistent with its
regulatory definition, EPA creates confusion. Further, in the
past, EPA has used the term "regulated constituents," without
specifically defining it, to mean the constituents in a listed ,
hazardous waste for which LDR treatment standards have been set
(e.g., see 60 FR11702,11727 (referring to a table showing
"regulated constituents, by waste code," where adding either a
waste water or nonwastewater UTS was proposed)). Therefore, it
seems inconsistent and confusing to create a new, definition for
"regulated constituents" for use in the limited context of the LDR
Phase IV proposed management standards for leaks from
surface impoundments. DOE suggests that proper use of the term
"UHC" [i.e., as defined under 40 CFR268.2(I)] would make such a
definition unnecessary. . . .
884
-------
RESPONSE . .
Today's rule does not address the issue that theycommenter raises because it is outside the scope
of the rule. However, EPA shall consider this issue in the future.
885
-------
DCN ' PH4P031
COMMENTER Department of Energy
RESPONDER HM " -
SUBJECT POG,
SUBJNUM 031
COMMENT : ;
I.H.5. Proposed Management Standards for Sludges
LH.S.b. Rationale
1. p. 43673, cols. 2&3 -EPA states that the evaluation of '
sludges under Option 2 (i.e.,to determine if the sludges pose a
significant risk) will not be required until the sludges are
removed from the surface impoundment. This is because '
' in-place sludges are not believed to be a release pathway separate
from the leaks pathway. When removed from the impoundment, if
sludges contain hazardous constituents in excess of the UTS, '
treatment will be required prior to disposal. EPA notes that
it could be argued that even no treatment of sludges would satisfy
the requirement of RCRA-equivalent treatment since generation of
sludges constitutes a new point of generation. '
DOE agrees that in-place sludges should not be considered a
separate release pathway for hazardous constituents, and that
controls directed at leaks should provide adequate protection
for human health and the environment (i.e., without placing
additional controls on in-place sludges).The Department also
concurs that nonhazardous sludges need not be treated at all in
order to achieve equivalency with the treatment required by RCRA
Subtitle C LDR standards. Treatment of sludges is unwarranted
unless, upon removal, the sludge is independently found to
be characteristically hazardous, and therefore, pose a threat to
human health or the environment DOE holds the view that for
. characteristic wastes, treatment residues (such as
impoundment sludges) having a different physical form, and possibly
different treatability group, than the original waste should hot be
managed based on the characteristics of the original waste.
Instead, such treatment residues should be judged based on their, -
own characteristics. This position is consistent with the rules
regarding treatability groups articulated by EPA hi the LDR Third
Third Final Rule [55 FR 22520,22661-22662 (June 1,1990)]. Hence,
DOE believes that sludges removed from surface impoundments
receiving decharacterized wastes should not be required to undergo
treatment, unless such sludges exhibit a hazardous characteristic
themselves. However, as EPA has pointed out, a compliant Subtitle
. D surface impoundment would (by definition) never produce sludge
886
-------
that exhibits a hazardous characteristic. .
Consistent with this position DOE's comments on prior LDR proposed
ralemakings encouraged EPA to apply the change of treatability
group'principle (instead of "waste code carry-through") to certain
treatment residues; including sludges generated in wastewater
treatment surface impoundments accepting decharacterized wastes.
DOE continues to encourage EPA to allow evaluation of such
treatment residuals on their own merit
RESPONSE . :
The Agency thanks the commenter for supporting EPA's policy on the evaluation of sludges for
hazardous constituents.' \
r
I
r
L
887
-------
DCN PH4P033 ' . .
CQMMENTER CMA Carbon Disulfide Panel
RESPONDER HM
SUBJECT POG
SUBJNUM 033
COMMENT : - ,
The Panel also believes that EPA's current interpretation of the
"point of generation" is overly stringent. The Panel urges EPA to
implement revisions to the definition of the "point of generation" .
as recommended by CMA.
RESPONSE ' > , - .
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
-------
DCN PH4P034
COMMENTER CMA UIC Task Force
vRESPONDER HM
SUBJECT POG
SUBJNUM 034 . .
COMMENT
Limit the circumstances under which segregation for Treatment of
underlying hazardous constituents in characteristic wastes is
required.
RESPONSE.
This issue is outside the scope of today's rule. The Agency will, however, consider this issue in
the future.
889
-------
DCN -PH4P034
COMMENTER CMA UIC task Force . .
RESPONDED HM
SUBJECT POG
SUBJNUM 034 '
COMMENT '
Clarify that residues from pretreatment of injected wastes
: are newly-generated wastes, irrespective of the individual stream's
treatability group prior to aggregation, and therefore the residues
are only subject to treatment requirements for characteristic
wastes if they, themselves, exhibit
RESPONSE
This issue is outside the scope of today's rule. The Agency will, however, consider this issue in
the future.
890
-------
DCN PH4P036
COMMENTER American Iron & Steel Inst
RESPONDER HM
SUBJECT POG
SUBJNUM 036, / ,' ,
COMMENT
It has long been EPA's position that when a sludge is generated
, from the treatment of a"wastewater" (as defined for purposes of
, the LDR program at 40 C.F.R. § 268.2(f)), there is a change in
"treatability groups," and therefore a new "point 'of generation"
for regulatory purposes. \
See, e.g., 55 Fed. Reg. 22,520,22,661-62 (June 1,1990). Under
this approach, if the sludge is non-hazardous at this point of
generation, it is not subject to any RCRA regulations, including
the LDR program. Id. This EPA position was not challenged in the
Chem Waste II case, and was not undermined in any way by the
Court's decision. See 60 Fed: Reg. at 43,656. On the
.' contrary, the Court appeared to envision that non-hazardous sludges
generated in CWA surface impoundments would not be subject to any
LDR'requirements. See 976 F.2d at 24 n. 10 (stating only that/'any'
hazardous precipitate or other hazardous material generated during
CWA treatment must be managed in accord with subtitle C" (emphasis
added)). Accordingly, undercurrent law,:EPA need not develop hew
' regulations for non-hazardous sludges generated in CWA-regulated
surface impoundments.
Indeed, it would be arbitrary for EPA to impose LDR requirements
on non-hazardous sludges removed from non-hazardous waste surface
impoundments that manage formerly characteristic wastes. If a
non-hazardous sludge were removed from a hazardous waste
surface impoundment (as might happen if the impoundment received
only characteristic wastes and qualified for the "treatment in
surface impoundment" exemption of RCRA § 3005(j)(l 1) and 40C.FiR.
§268.4), it would not have to meet any LDR requirements, due to
. EPA's policy on changes in treatability. groups qualifying as new
' points of generation (which the Agency is not revisiting hi the
. context of hazardous waste impoundments). There is no apparent
: reason why non-hazardous sludges that are removed from
, non-hazardous waste surface impoundments should be subject to more
stringent regulation. Consequently, these wastes should remain
\ exempt from any LDR requirements. Just like sludges from hazardous
waste surface impoundments, from non-hazardous waste surface
impoundments that do not receive formerly characteristic
wastes, and indeed from all other sources (including tanks), .
891
-------
.sludges from non-hazardous waste impoundments that receive formerly '
characteristic wastes should be evaluated when they are initially
generated, and subjected to LDR requirements only if they
constitute RCRA hazardous wastes at that point. .
Perhaps most importantly, non-hazardous sludges generated in
impoundments managing formerly characteristic wastes do not merit
additional control under RCRA, because any risks posed by releases ':-
of constituents from those sludges are adequately addressed by
existing regulatory programs. Many state solid waste programs
already regulate the handling and disposal of industrial solid
wastes, including sludges from non-hazardous waste impoundments.
EPA's Part 258 criteria for municipal landfills, which require the
installation of liners and leak detection systems, also provide
substantial protection of the environment from risks posed by the
disposal of non-hazardous wastes, including sludges. Under the *
RCRA corrective action program, EPA can require that sludges
generated hi non-hazardous waste impoundments that are located
at permitted or interim status TSDFs be removed from the . _
impoundments and managed in a protective manner, either oh-site or
off-site. Finally, in order for non-hazardous waste
surface impoundments to remain outside the scope of Subtitle C
regulation, the sludges generated hi them cannot be hazardous
wastes by virtue of either the RCRA hazardous waste "listings" or
the RCRA "characteristics." In this way, RCRA Subtitle C imposes
certain limits on the risks associated with sludges that are
generated in and removed from non-hazardous waste
surface impoundments. In light of all of these regulatory
controls, there is no reason'to impose further controls, under the . "
RCRA land disposal restrictions program, on non-hazardous sludges
removed from impoundments that receive formerly characteristic , :
wastes.
RESPONSE
« . '
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. -This Act provided,
among other things, that decharacterized wastes treated in CWA-reguIated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future tune, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented hi the Phase HI rule. Also, as the commenter notes, the change of treatabilitv group
principle continues to apply. :
892
-------
r
DCN PH4P036 ,
COMMENTER American Iron & Steel Ins
RESPONDER HM ~
SUBJECT POG
SUBJNUM Q36
COMMENT , , "" ',-'' ' '.,
Non-hazardous waste surface impoundments that do not receive
, formerly characteristic wastes clearly should be excluded from any
Phase IV regulations because the wastes that they receive are not
prohibited from land disposal and, indeed, are beyond EPA's
jurisdiction under Subtitle C. Similarly, if an impoundment
receives formerly characteristic wastes, but those wastes meet the
universal treatment standards at the point of generation, the
impoundment should be excluded from any Phase IV controls.. In this
' case, the wastes already meet the ''minimize threatllstandard of the
LDR program and thus, once again, are not prohibited from land
disposal. EPA itself has recognized the necessity and
appropriateness of these limitations on the Phase IV land disposal
restrictions. See 60 Fed. Reg. at 43,657,,43,660. Accordingly,
there is little need to address the limitations further in these
comments. ,
AISI is concerned, however, that EPA is interpreting the "point of.
generation" for purposes of the LDR program in a manner that is
inappropriate and unnecessarily stringent In the Phase III LDR
proposal, EPA appeared to recognize some of the problems
associated with its current interpretation of the "point of
generation," and requested comments on various possible approaches
for modifying that interpretation. See 60 Fed. Reg. at 11,715-17.
AISI believes that the best approach, and perhaps the only lawful
approach, would be the "battery limits" approach suggested by the
Chemical Manufacturers Association ("CMA"). Under this approach,
all of the residues associated with the manufacture of a single
product, or group of related products, could be combined before a
determination is made as to whether the wastes are prohibited from .
land disposal under the LDR program. For example, if an iron and
steel facility separately aggregated all of the residues from
steel making (including the furnace, casting, milling, and
. finishing processes), all of the residues from ironmaking, and all
of the residues from the manufacture of coke and coke by-products, .
a determination could be made on each of the three waste streams
(or, if appropriate, any combination of these residues), without
evaluating residues within the individual process units!
AISI believes that this approach is essential to ensure, that the
893
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LDR regulations do not conflict with the admonition of Congress
that RCRA "dofesl not authorize the EPA ... to intrude into the
' ' i t
production process or production decisions of individual
generators." S. Rep. No. 284,98th Cong., 1st Sess. 6(1983). See
also S. Rep. No. 988,94th Cong., 2d Sess. 26 (1976)(RCRA "does
not establish any federal authority with respect to decisions in
the manufacturing process."). In addition, this interpretation
would allow for dilution that is "part of the normal process that , V
results in the waste," which Congress specified should not be
considered a form of impermissible dilution. S. Rep. No. 284,98th
Cong., 1st Sess. 17(1983). The "battery limits"approach also .
would have a number of important practical benefits, such as
facilitating point of generation determinations (which otherwise .
might have to be made on hundreds or even thousands of streams
'. within hard-piped collection systems), encouraging efficient and
legitimate wastewater treatment, easing monitoring burdens, and
eliminating the need for evaluating streams that are generated on a
one-time or occasional basis (e.g., spills or residues from batch
processes).These benefits likely could be obtained without .
significantly affecting the overall mass loadings of ...
hazardous constituents entering the environment, or otherwise
undermining the goals of the LDR program. See 60 Fed. Reg. at
11,715-16. , .
For these reasons, AISI encourages EPA to adopt the "battery '
.limits" approach for identifying the "point of generation" of
wastes for purposes of the LDR program. The adverse consequences
of the Agency's current approach already are quite severe, and are .
likely to be magnified substantially as a result of the Phase III ''..''
and Phase IV LDR rules. Accordingly, it is important that EPA
change its interpretation of the "point of generation" as soon as
possible, and certainly no later than the date of promulgation of ,
the Phase III rule.
RESPONSE "
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase ID rule. .
894
-------
DCN PH4P036 . ' ' . .," .
GOMMENTER American Iron & Steel Ins
RESPONDER HM . ' ''.
SUBJECT POG ' ' '
SUBJNUM 036
COMMENT . \ .
If EPA nevertheless concludes that additional sludge controls are
warranted under RCRA, the Agency should finalize its proposal to . ;-
exclude sludges from biological and post-biological impoundments.
In addition, EPA should exempt sludges generated in surface
impoundments at TSDFs that have RCRA permits or are operating
pursuant to interim status, sludges that are disposed at facilities
that meet the criteria for new municipal solid waste landfills N
under RCRA Subtitle D or other applicable state regulatory , .
requirements, and sludges that are destined for reclamation. Each .
exemption is discussed separately below. . .
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated hi CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
. wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
895
-------
DCN PH4P056
COMMENTER Westinghouse
RESPONDER HM
SUBJECT POG . '"','
SUBJNUM 056 ,
COMMENT
4. Westinghouse supports the continued application of the
principle stated by EPA in the Third Third rule that generation of ,
a new treatability group is considered to be a new point of '
generation and thus a new point for determining whether a waste is
prohibited (See 55FR 22661-662). This interpretation was
discussed, but not challenged, in the U. S. Court of Appeals in
Chemical Waste Management vs. EPA, 976 F.2d 2 (D. C. Cir. 1992)
which suggests that it is not in question. Therefore, wastewater . .
treatment sludges not exhibiting a characteristic are not
' prohibited, even though they may have been derived from
a prohibited wastewater. It would be beneficial for EPA to
reassert this in this rule as well. .
5. The EPA should clarify, when generators must determine what
underlying hazardous constituents (UHC) are present in the waste.
Specifically, are applicable UHC for treated streams and residues
always based upon the designation at the initial point of
generation for the waste? Westinghouse supports efforts to
establish reasonable parameters for determining what constitutes a
point of generation requiring an UHC evaluation. Does a residue
ever constitute an initial point of generation requiring an UHC
determination? Furthermore, if wastes are aggregated in tank ;
systems to facilitate centralized treatment, how do changes in
treatability group affect the UHC monitoring requirements for the '
waste being treated or for residues that are generated?
i ' .
RESPONSE .:.-"'
s - \ ' '
The Agency thanks the commenter for supporting EPA's re-examination of point of generation
issues. Many of these issues were resolved when, on March 26,1996, President Clinton signed
into law the Land Disposal Program Flexibility Act of 1996. This Act provided, among other
things, that decharacterized wastes treated in CWA-regulated units are no longer prohibited from
land disposal so long as they are not hazardous wastes at the point they are land disposed. The
Act also required that EPA study the characteristics of such decharacterized wastes. If at some
future time, the Agency determines that certain decharacterized wastes require LDR treatment
standards, the EPA will revisit the options for point of generation that were presented in the
Phase HI rule.
896
-------
DCN
COMMENTER Exxon Chemicals Americas..
RESPONDER HM . =
SUBJECT POG -
SUBJNUM 059 '
COMMENT , , , .
3. On the Point of Generation definition, EC A supports a
"process area" approach for making LDR detenninations . . '
RESPONSE
Many of the point of generation issues were resolved when, on March 26, 1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited.from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. ' ' . .
897
-------
DCN . PH4P059
COMMENTER Exxon Chemicals Americas
RESPONDER HM . .
SUBJECT POG
SUBJNUM 059 .''''.'-'' ,
COMMENT
5. EGA requests EPA to clarify that wastewater treatment sludge
is a new treatability group '
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President .
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. .
898
-------
DCN PH4P059
COMMENTER .Exxon Chemicals Americas
RESPONDER HM ^
SUBJECT POG .-.'.;
SUBJNUM 059 " ,
COMMENT ^
3. Point of Generation: EGA Supports a "Process Area" Approach for
Making LDR Determinations . . /
In the preamble of the proposed LDR Phase III rule, EPA solicited
comments on a number of approaches to define the point of
generation for wastewaters for the purpose of making LDR
determinations. A key factor to consider in assessing alternate
approaches is the potential significant regulatory burden that may
. be placed on large industrial complexes. '
As background, large industrial facilities manage wastewaters from
hundreds or thousands of sources within a manufacturing complex.
. One Exxon Chemical plant has over 1600wastewater sources.
Oftentimes these wastewaters are hard-piped directly into sewer
. systems and are not readily accessible for sampling and analysis. ,
Wastewater stream flows can be continuous, intermittent, or very
infrequent (e.g. annual shutdown cleanouts), and the composition of .
any one stream may vary as a function of the type of product being
produced at a particular point in time, as well as the efficiency
and operating conditions of the manufacturing process. .
' If each individual wastewater source was defined, for LDR Phase
III and IV rulemaking purposes, as the point of generation, a '
generator would be required to analyze/assess each stream to
determine whether it is hazardous, what the underlying hazardous
constituents are,in hazardous wastewaters (either through analysis
or process knowledge), and, if necessary, what treatment method is
required. For large facilities with many wastewater streams
this would impose a significant burden for classification,
record keeping, and in many cases analyzing large numbers of
individual streams, many of which are not easily accessible. ,
. The environmental benefits associated with this approach are .
minimal versus allowing for reasonable aggregation of streams hi
Process Areas (certainly the benefits do not justify the extensive
costs involved). ' v .
EC A supports a Process Area approach for making LDR determinations
in chemical operations. A Process Area can be defined by the
equipment and associated facilities included within a geographic
boundary which are used to either process materials to a primary
product (which often times is used to describe the unit) or
899
-------
provide a utility for common use among other processes within a
facility (e.g. steam generation). Generally these process areas are
within the operational control of a discrete operating
organization and the assets/costs are collected separately. The
wastewater exit poiht(s) from the Process Area would define the LDR
applicability. These points are where specific wastewater lines
leave the geographic boundary circumscribing operations of the
Process Area. Use of Process Area for making LDR determinations
would lessen the burden of analyzing or assessing
individual wastewater streams, while recognizing in a common sense
fashion the practical.realities of operating a manufacturing
process.
Contrary to EPA's comments in the preamble, Process Areas can
easily be defined in cheinical manufacturing operations.
Manufacturing facilities are typically subdivided by a product
designation or cost center. EGA recognizes that not all industrial
sectors can be divided into Process Areas as well as the'chemical
industry. This difficulty, however, should not be the basis for
establishing an overly burdensome approach for the chemical
industry. If Process Areas cannot be defined, a manufacturer should
still have the option to use the" Streams from a Single Process" or
"Similar Streams Generated by Similar Processes"options which EPA
outlined. However, because of the physical layout of most
chemical facilities, these two options would have limited benefit
to the chemical industry.
RESPONSE .
The Agency thanks the commenter for supporting EPA's re-examination of point of generation
issues. Many of these issues were resolved when, on March 26,1996, President Clinton signed
into law the Land Disposal Program Flexibility Act of 1996. This Act provided, among other
things, that decharacterized wastes treated in CWA-regulated units are no longer prohibited from
land disposal so long as they are not hazardous wastes at the point they are land disposed. The
Act also required that EPA study the characteristics of such decharacterized wastes. If at some
future time, the Agency determines that certain decharacterized wastes require LDR treatment'
standards, the EPA will revisit the options for point of generation that were presented in the \
Phase III rule.
900
-------
DCN PH4P059
COMMENTER Exxon Chemicals Americas . . .
RESPONDER HM ' .
SUBJECT POG . ,
SUBJNUM 059 ;
COMMENT . ' ., .
5. EGA Requests EPA To Clarify that Wastewater Treatment Sludge is
a New Treatability Group . .
ECAagrees with EPA's interpretation that the generation of a new
treatability group is the new point of generation for purposes of
determining where LDR prohibitions attach. Sludges from wastewater
, management in CWA/CWA-equivalent systems should be ,
. considered restricted wastes only if they are themselves hazardous i
attheirpoint of generation. This approach provides a clear line ,
, of demarcation and avoids the difficulties associated -
with determining new treatability groups every time a waste is ,.
altered in some respect. EPA SHOULD make this approach explicit in
the Phase IV rule.
CWA wastewater treatment sludges are typically of high volume and ,. '
low toxicity, do not exhibit any hazardous characteristics, and do .
, not pose a threat to human health and the environment. Such large
volumes of low toxicity material that is not causing -
substantial threats should not be covered by LDR requirements :
unless the sludge itself is determined to be a hazardous waste
As currently written, the LDR Phase IV rule would trigger the need .
to identify UHCs that exceed UTS even for sludges that are
. non-hazardous. This is inconsistent with the new treatability group .
concept and the comment EPA makes in the preamble that "it can .
be argued that even no treatment of sludges is equivalent to
subtitle C LDR controls. This is because generation of sludges is
usually a new point of generation at which the newly-generated
waste is reevaluated to determine if it is subject to the LDR
standards. If non-hazardous, the sludges would not be so subject" .
(60 FR 43673)./ .
RESPONSE '-.. ^
' ' . (
,, . ,, _ ' . ! .
'Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law die Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer,
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
Wastes. If at some future time, the Agency determines that certain decharacterized wastes require
901
-------
r
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. EPA agrees that the change of treatability group principle
remains in force as well. ' '
902
-------
DCN". PH4P060
COMMENTER American Dental Association
RESPONDER HM
SUBJECT POG .
SUB'JNUM oeo ... .
COMMENT v - / ' ' . ' ' , . " . '' .
'" - '-','
i _ '
With regard to the proposed Option 2 regulations regarding sludge,
* ADA believes that no additional treatment requirement for '
prebiological sludge is necessary as a legal or practical matter. \
As discussed in the Notice, 60 Fed. Reg. 43673, generation of
the sludge (e.g., upon removalfrom the surface impoundment)
constitutes a new point of generation for RCRA purposes. Where the
sludge is non-hazardous, there is no need, or legal basis, to /
subject the material to RCRA treatment requirements. Also, as
stated above, EPA's Part 503 program already regulates the use and
disposal of sludge. Subjecting sludge to requirements under a new,
separate regulatory program would unnecessary burden surface
impoundment facilities and the many entities whose wastes are
treated there. '..'''
RESPONSE
t
Many of the point of generation issues were resolved, when, on March 26,1996, President >
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes.. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards,' the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
903
-------
DCN PH4P061 '.., ,
COMMENTER BP Chemicals
RESPONDER HM .
SUBJECT POG .
SUBJNUM 061 '.'','.'
COMMENT 4) The Agency should promulgate the LDR Point of Generation
rulemaking prior to finalizing the Phase IV management .
standards. '
x" ' N
RESPONSE . ! ' ? "
The Agency has decided to address certain specific point of generation issues in the Phase IV
rulemaking, along with finalizing management standards. Many of the point of generation issues
were resolved when, on March 26, 1996, President Clinton signed into law the Land Disposal
Program Flexibility Act of 1996.; This Act provided, among other things, that decharacterized
wastes treated in CWA-regulated units are no longer prohibited from land disposal so long as
they are not hazardous wastes at the point they are land disposed, the Act also required that
EPA study the characteristics of such decharacterized wastes. If at some future tune, the Agency
determines that certain decharacterized wastes.require LDR treatment standards, the EPA will
revisit the options for point of generation that were presented in the Phase III rule.
904
-------
DCN PH4P061 . ... ' .v
COMMENTER BPCHEMICALS
RESPONDED HM , .' .
SUBJECT .POG ' . *
SUBJNUM 061 . ..'-, ,
COMMENT 4) The Agency should promulgate the LDR Point of Generation , . ;
rulemaking prior to finalizing the Phase IV management .
standards. In the proposed Phase III LDR Rule (60 Fed. Reg. . .
11702, March 2,1995), the Agency solicited comments from the
public on the issue of establishing an alternative point of ,
^generation definition for the decharacterized wastewater streams
potentially subject the Phase III and IV rules. The point of '
generation definition is critical in determining which waste ' / '.
streams and waste management units will,be subject to the Phase
'- , IV rules. Depending on where the point of generation is .
established, the applicability of the Phase IV rules and .
potential compliance options and associated costs cannot be
determined. In April 1995, BP Chemicals submitted comments on
me point of generation issue strongly encouraging the Agency to ,
adopt the so called "Battery Limits" option. We believe this
option offers significant logistical advantages and cost savings
to me regulated community without any adverse impact to the ,' \ - : ' ''.
effectiveness of the LDR program. The decharacterized ICRT
wastes themselves are relatively low risk streams. The ,
potentially huge reduction in monitoring, control and .
recordkeeping offered by the Battery limits option is more than .
justified given the actual risks posed by the streams; We urge .-''.
the Agency to finalize an alternative LDR Point of Generation . '
.rule prior to finalizing the both the Phase III and Phase IV ' '
rules.
RESPONSE ; ''.-'/ :, ' \ -' -':. . ' ..;.:, ;; ''
The Agency has decided to address certain specific point of generation issues in the Phase IV
rulemaking, along with finalizing management standards. Many of the point of generation issues
were resolved when, on March 26,1996, President Clinton signed into law the Land Disposal
Program Flexibility Act of 1996. This Act provided, among other things, that decharacterized
wastes treated in CWA-regulated units are no longer prohibited from land disposal so long as
they are not hazardous wastes at the point they are land disposed. The Act also required that
EPA study the characteristics of such decharacterized wastes'. If at some future time, the Agency
determines that certain decharacterized wastes require LDR treatment standards, the EPA will,
revisit the options for point of generation that were presented hi the Phase III rule.
905
-------
r
DCN PH4P064 .
COMMENTER Dow Chemical
RESPONDER HM
SUBJECT POG
SUBJNUM 064
COMMENT- ';
Sludges do not need to be further regulated under Phase IV LDR to
achieve equivalent treatment as EPA has already stated (55 FR
22661-62 and 60 FR 43673). Sludges removed from an impoundment " .
must be evaluated to determine if they are hazardous since they .
are considered anew point of generation (60 FR 43673). If the
residues are hazardous, the land disposal restrictions attach and
.' the sludges would have to be treated to meet UTS prior to land
disposal. If the sludges are not hazardous, they would not be
regulated by Subtitle C but would be required to,comply with any
applicable state waste management program. Sludges not removed
from impoundments would be addressed by measures implemented for
leaks (60 FR 43673).
Finally, there are an abundance of air regulations promulgated by
EPA that appropriately and extensively address air emissions/
These air rules include existing and future MACT .
standards promulgated under 40 CFR Part 63, the new NSPS regulation
for VOC wastewaters, State RACT rules addressing VOCs in wastewater .
as part of non-attainment requirements, NESHAP rules for Benzene
waste, and state air permitting rules required under EPA New
Source Review Programs. These programs are sufficient to address
the potential for air emissions from non-hazardous surface
impoundments. Adding a separate program for these impoundments
is redundant and unwarranted. . ; , . .
RESPONSE .
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes .treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. ' ,
906
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DCN PH4P066 .
COMMENTER API , ' ,
RESPONDER HM
SUBJECT POG \ -
SUBJNUM 066 .
COMMENT \ ' . - - ,
B. The "Treatability Group Doctrine" Was Not Addressed In The .
"Third-Third" Decision. ,
As part of the Third-Third LDR rule, EPA determined that when a
' , prohibited characteristic waste changes treatability groups, this ;
creates a new point of generation for purposes of determining if
. the land disposal restrictions apply. As EPA observes, the >
treatability group doctrine was not challenged as part of the
"Third-Third" litigation, nor was it addressed by the court in the .
"Third-Third" decision." 60 Fed. Reg. 43656.Under EPA's previous
pronouncements, the application of the treatability group rules ,
to characteristic wastes was straightforward. See, examples of
treatability group doctrines applied to characteristic wastes, 55 . ' ,
Fed. Reg! at 22662. As EPA itself pointed out In the "Third-Third"
preamble, this approach to treatability groups: .
provides a clear line of demarcation, avoids the enormous
difficulties of determining new ,, , .
points of generation^ every time a hazardous waste is altered in-,
; some respect, and avoids having an initial waste's status as
prohibited determined in all cases by some later management of a
residue derived from the initial wastes. ,
55 Fed. Reg. at 22661. EPA has not suggested any reason, other
than an overaggressive reading of the; "Third-Third" decision, to
reverse this longstanding agency policy. Consequently, EPA should
not change the "treatability group doctrine."
Unfortunately, while EPA seems to support the "treatability group
doctrine" In me early pages of the Phase IV preamble, the sludge
; management standards presented in Option 2 undermine the ,
"doctrine." Instead of the trigger for sludge treatment being the
TC levels (as would be the case if the "treatability group \
doctrine"was followed), EPA designated UTS levels as the trigger
for requiring LDR treatment of sludges, EPA should therefore. .
." reexamine its position and maintain the "treatability group
doctrine." . .
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
' - ' ' ' ' . ' ~ . '. ,'.''-
''"' 907
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Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. >
90S
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DCN PH4P066 .--..-
COMMENTER API , '
RESPONDER HM ' \
SUBJECT POG , ,
SUBJNUM 066 . ,
COMMENT . '
Land based ABT units are designed to be well mixed systems. In
our Phase III comments, API demonstrated that the contaminant
concentration throughout the ABT unit are statistically equivalent ,
to those in ABT effluent. This demonstrates that the water '" \
throughout the unit is well treated. Consequently, any leaks that
. may occur from ABT impoundments will be of treated water, and. ,
therefore do not require any further controls. Further, the TCLP .
extracts from the biosludges at the four refineries in' ,
theERM-Southwest study are several orders of magnitude below the
UTS for wastewater (typically more than 1000 times lower than UTS),
confirming EPA's finding that the sludges from biological treatment /
units do not pose a threat to groundwater. ,-..
2. Sludges Should Not Be Further Regulated Under This Rule.
Wasted-sludges from surface impoundments do not pose significant ' " .
risks. The above referenced ERM-Southwest study (Appendix A) also .
collected sludges from four petroleum refineries. Total PAH
analyses from sludges at ail four refineries showed that the levels
were all below UTS. Furthermore, TCLP analyses performed on these
sludges for both metals and PAHs indicate that all parameters were
much less than UTS limits. In fact, metals TCLP analyses were all
at least three orders of magnitude below TCLP limits, and PAH
analyses were all less than one part per billion. It is clear _
therefore, that the sludge serves to stabilize the fraction of ...
constituents not biodegraded, effectively complexing them uito the
biomass. As a result, refinery ABT sludges do not pose a
significant environmental threat after their removal ^ . ~
from wastewater impoundments, and should not be subject to any .'.'"
additional regulation. . .
RESPONSE " .
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law'the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are hot hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
, *., ''*' _ / ' *'
' : '-.':- : ' . ' ' '909 /' ' . ;.. -.. '
-------
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
910
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DCN PH4P075 .'.-,..
COMMENTER Elf Atochem .1
RESPONDER HM .
SUBJECT POG r " ' .
SUBJNUM 075
COMMENT
f The more serious problem is that further LDR notification and
certification requirements apply when residuals from the , <
regeneration of spent activated carbon are shipped off-site by , -' '
the regeneration facility for subsequent management Again, at .»
least in the case of nonhazardous residues, it appears that the
paperwork required must include "a description of the waste
as initially generated.", 40 C.F.R. §268.9(d). It thus appears
that the regeneration facility would be
required to list the waste codes and treatability groups that
applied at the point of generation to any characteristic or , .'.*',
formerly-characteristic wastes that were treated with any of the
spent carbon , :', ' ,
from which the regeneration residues were in turn derived. In
addition, the regeneration facility would need to identify the
underlying hazardous constituents present in these "distant
ancestor" wastes, again unless residues will be monitored for all
UTS constituents prior to land disposal. Id. ,
'RESPONSE ' ' \'- *' ' ' '.' ~ ' . '';. ' -'..'.
Today's rule does not address the issue that the commenter raises because it is outside the scope
of the rale. However, EPA shall consider this issue in the future.
. 911
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DCN PH4P080 , ' . .
COMMENTER Eastman .
RESPONDER HM
SUBJECT POG v
SUBJNUM 080
COMMENT C. Sludges Are Prohibited Only If They Are Themselves
Hazardous Under option 2 in the proposed rule, sludges removed.
from prebiological CWA surface impoundments that accept
decharactenzed hazardous wastes would have to meet UTS levels..
Eastman believes that no additional controls for sludges are
warranted for the following reasons. First, as the Agency has
stated, controls for sludges residing in the impoundments,
separate from controls that address impoundment leakage, are not
needed. "...EPA does not believe in-place sludges would be a
release pathway separate from the leaks pathway. Put another
way, by controlling leaks (as explained in the previous
section), any risks posed by sludges while in the impoundment
should be accounted for." (60 FR 43673) Secondly, sludges
represent a neW point of generation when they are removed from
the impoundment and are, therefore, subject to land disposal
restrictions only if they are hazardous (exhibit a hazardous
characteristic) at the time they are removed, (see Wow) "EPA
also reiterates that, as a legal matter, it can be argued that
even no treatment of sludges is equivalent to subtitle C LDR
controls. This is because generation of sludges is usually a new
point of generation at which the newly-generated waste is
reevaluated to determine if it is subject to the LDR standards.
If non-hazardous, the sludges would not be so subject (i.e.,
would not be prohibited wastes). See 55 FR 22661-62. Thus,
literal application of an equivalence test would result in no
treatment of these sludges, since the sludges will be
non-hazardous wastes by definition (they cannot be hazardous
wastes because they are being generated in subtitle D
impoundment), and so would not require further treatment under
the standard subtitle C approach." (60 FR 43673) As the Agency
has properly recognized, sludges removed from a nonhazardous
impoundment are not hazardous (because they were generated in a
nonhazardous impoundment) unless they are determined to be
hazardous (exhibit a hazardous constituent) at the point that -
they are removed. No land disposal restrictions attach to the
removed sludges unless they exhibit a characteristic. In its .
, Phase III discussion of sludges generated from the treatment of
characteristic wastes in CWA impoundments (60 FR 117.09), the
912
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Agency says that "Under EPA's existing interpretations of the
rules, such sludges are usually considered to be prohibited ,
wastes only if they are themselves hazardous. This is because *
generation of a new treatability group is considered to be a new
. point of generation for purposes of determining where LDR
prohibitions attach." In the initial proposed rule setting forth
land disposal restrictions (LDR) the Agency recognized that the
most effective and efficient way to develop treatment methods
would be to divide wastes into treatability groups based on
similar physical and chemical properties. See 51 FR 1677. The
Agency recognized hi this proposed rule that setting treatment
standards on the basis of waste codes is not appropriate.
"Because of the large number and variable nature of the waste
within most EPA waste codes, it is usually not appropriate to
evaluate treatment methods and their effectiveness on a waste
code basis.... Waste may also be grouped according to the
constituent properties since these properties influence waste
. treatability. For example, all waste containing volatile organic
constituents may form one treatability group, while waste ,
containing soluble organics may form another group. Other groups
may consist of waste containing metals or cyanides." It follows
. , from tWs position that in order to determine what treatment
standards apply one must know what treatability group is
1 involved. And the determination of a treatment standard can
; occur only after the treatability group is generated. EPA
. confirmed its use of treatability groups in making a
determination of applicable restrictions in the final rule
, issued November 7,1986,51 FR 40572. In describing thesequence
to be followed in determining LDR the Agency stated at page
40620: "Sequence 1 in the generator's decision-making process
commences with a determination of the appropriate treatability
group and corresponding Part 268 Subpart D treatment standard
... The Agency is requiring that applicable Part 268 Subpart D
^ treatment standards for a restricted waste be determined at the
point of generation." A statement that a change hi treatability
group creates a new point of generation is found in the final
rule for land disposal restrictions for California list waste,
. 52 FR 25760 at page 25767, which in turn reiterated a statement
found in 52 FR 22356 at 22357. In both instances the Agency
explained ah exception to the principal that treatment residues
from prohibited waste must continue to be treated until they
meet the treatment standard. As the Agency explains: "This is
where treatment results in a residue that belongs to a different
913
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.treatability group than the initial waste and the Agency has
already determined that there is inadequate nationwide capacity
to treat the waste belonging to that group." As an example, the
Agency described the incineration of an FOO1-F005 spent solvent
that generates a scrubber water. Further.treatment of the
scrubber water is not required because ... this scrubber water
belongs to a different treatability group... It is obvious from
this discussion that as the treatability group changes the
determination of applicable land disposal restrictions changes
also; It follows that since land disposal restrictions are
determined at the point of generation (as described previously)
then a change in treatability group is a new point of
generation. See also 55 FR 22520 at 22544: "Additionally, this
is in keeping with the general principal established in these
rules that determination of whether a characteristic waste
achieves BD AT must be reevaluated whenever a treatment residual
is generated. Put another way, each new treatability group has a
new point of generation for a characteristic waste." See also 53
FR 31138 at 31209: "Of course, if in the course of managing the
waste a new treatability group is created, for example, scrubber
water from the incineration of a nonwastewater, the treatment
standard applicable to this new treatability group will apply."
From the above it is apparent that from early on in the
development of the land disposal restriction rules the Agency
has emphasized both the concept of determining applicability of
land disposal restrictions at the point of generation and the
concept that treatment standards are based on treatability
groups and that a change in a treatability group is a new point
of generation. As EPA pointed out in the third-third rule, this
approach to treatability group changes "provides a clear line of
demarcation, avoids the enormous difficulties associated with
determining new treatability groups every time a hazardous waste
(in this case non-hazardous waste) is altered in some respect
and avoids having an initial waste's status as prohibited ,
determined in all cases by some later management of a residue
derived from the initial waste11. See 55 FR 2266. It is also
apparent that the court hi the third-third decision nowhere
addressed the issue of a change of treatability groups or, for,
that matter the issue of treatability groups at all. Thus, EPA
cannot rely on the court decision as a mandate to change its
position on point of generation or treatability groups. If these
changes are to be made they must be made on their own merits and
not as a requirement of the court. '
914
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RESPONSE ; '
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided;
among other things, that decharacterized wastes treated in CWA-regulated units are no longer '
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. EPA also is not altering the change of treatability group
principles discussed in previous FR notices. . . '
915
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DGN ; PH4P080 .
COMMENTER EASTMAN /
RESPONDER HM , . < ,
SUBJECT POG . , . .
SUBJNUM 080
COMMENT 3. Sludges At 60 FR 43673, EPA acknowledges that any concerns
about sludges residing in nonhazardous CWA impoundments are .
addressed by the same measures that control impoundment leakage.
Therefore, no additional control is warranted to address sludges
(in the impoundment. EPA cannot arbitrarily attach land disposal
restrictions to sludges when they are removed from the , . .
impoundment. Sludges aren't subject to a determination as to the
applicability of hazardous waste regulations until they are
removed from the impoundment. When the sludges are removed from
the impoundment, they-represent a new point .of generation, and ,
land disposal (or any other RCRA requirements) requirements
attach to them only if they exhibit a characteristic of a ..
hazardous waste. The sludges cannot be presumed inherently
hazardous (and thus subject to LDR requirements), when they are ' -
removed, because they were generated in a nonhazardous
impoundment. They are hazardous, and subject to RCRA subtitle C
requirements, only if they exhibit a hazardous characteristic
when removed from the impoundment. .
RESPONSE . ,
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the; options for point of generation that were
presented in the Phase IE rule.
916
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DCN PH4P089
COMMENTER ASTSWMO , .
RESPONDER HM ,
SUBJECT POG -
SUBJNUM 089
COMMENT . , , '
. (2) Treatment standards for underlying hazardous constituents .
should be applied at the point of disposal rather than the point of .
generation.
Many of the issues surrounding the application of treatment ' .
'. standards to underlying hazardous constituents can be addressed by
applying these treatment standards at the point of disposal. .
For the purposes of land disposal restrictions^ at the point that a , '
waste is generated, the waste should .
be evaluated to determine if it is restricted. If the waste is >
restricted, it may be treated, as necessary. At the point of % :;
disposal, the waste should be re-evaluated to determine if the
waste is prohibited. If the waste meets its treatment standards, it
is no longer prohibited and may be land disposed. Under these .
- circumstances,a generator"or the receiving facility of waste that .' .
was restricted as generated and no longer prohibited as disposed ' <
would be required to document or demonstrate how the waste was ' : '"
treated and that the treatment method(s) used to meet the treatment
, standard did not involve dilution. Such documentation could be
retained in the facility's file, or submitted upon request, and - s
would directly address the issue of dilution by requiring ' V .
the generator or facility to demonstrate dilution was not used to
avoid LDR requirements. . ,
? ' ' ' ''....'.
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. \ . . , ,
917
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DCN PH4P091 , .
COMMENTER FMC . . ,
RESPONDER HM , .
SUBJECT POG
SUBJNUM 091
COMMENT II. FMC Opposes the New Term "Point of Origination". EPA has
proposed to add the new terni "Point of Origination" in .
classifying materials as wastes. FMC is opposed to this addition
and instead recommends that EPA clarify the "Point of \
Generation" and use this term in lieu of "Point of Rejection",
"Headworks" and "Point of Origination". The use of multiple
terms with respect to the same proposition only produces
confusion; This confusion, since 1980, has caused numerous
misinterpretations that have resulted in problems between the
regulated community and the EPA. 137 RCRA §3004(h)(3) EPA needs
to clearly define the "Point of Generation". FMC has previously
expressed support for a "battery limits" approach to "Point of
Generation"714 This would include revising 40 CFR §260.10 by
adding the definition of "Point of Generation" as: "The point at
which wastes become subject to Subject C regulation and at which
land disposal restrictions apply is the point of exit of .
material from a process, except for aqueous wastes managed in
, Clean Water Act (CWA) or C WA equivalent systems, where the point '
of generation is defined as the wastewater discharge point(s)
for the process area (also commonly termed "battery limits")." *
It is FMC's understanding that EPA is planning to issue a , ,
Federal Register notice clarifying (and perhaps amending) its
interpretation of the point of generation of hazardous wastes.
This issue is cmcial, because a determination of the point of
generation can determine whether a material is a hazardous waste
at all, and what LDR standards are applicable. Even more
fundamental, clarification of the point of generation will
determine whether a material is a waste at all. This , '
clarification could eliminate certain waste streams from
Subtitle C regulation (or clarify that they never should have
been included in the first place). Thus, the clarification could
have a significant effect on the upcoming LDR rules and on " .'
Hazardous Waste Identification Rule (HWIR), and should be issued
before any of those rules are finalized.714 RJ. Fields to
USEPA, 511/94, Docket No. F-95-PH3P-FFFFF, pg 14
RESPONSE , .
. . ' /
Many of the point of generation issues were resolved when, on March 26,1996, President
* ' *
4 ' ,
\ ' .
918
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Clinton signed into law. the Land Disposal Program Flexibility Act of 1996.' This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized'
wastes. If at some future time,.the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. -
919
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DCN PH4P092
COMMENTER Union Carbide Corp. " .
RESPONDER HM
SUBJECT . POG;
SUBJNUM 092 , .
COMMENT .
I.H.SThe discussion of phase 2 emissions standards refer to the
"point of generation" and the "point of origination." EPA should
clarify what is intended for off-site treatment facilities.
RESPONSE :. , .
The Agency believes that this point is not at issue because many of the point of generation issues
were resolved when, on March 26,1996, President Clinton signed into law the Land Disposal
Program Flexibility Act of 1996. This Act provided, among other things, that decharacterized
wastes treated in CWA-regulated units are no longer prohibited from land disposal so long as
they are not hazardous wastes at the point they are land disposed. The Act also required that ,
EPA study the characteristics of such decharacterized wastes. If at some future time, the Agency
determines that certain decharacterized wastes require LDR treatment standards, the EPA will
revisit the options for point of generation that were presented in the Phase III rule.
920
.
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DCN PH4P094
COMMENTER General Motors Corp. '"'.''
RESPONDER HM .
SUBJECT; POG ' ? -
SUBJNUM 094
COMMENT
-...' Wastewater Treatment Aggregation for Treatment - Typical
Wastewater Treatment facilities at manufacturing facilities have
been designed in such a fashion so as the contaminated
water requiring treatment is segregated into at most two or three
, streams (that is, oily wastewater and wastewater requiring metals
treatment). These wastewaters are aggregated at the headworks
ofthe separate wastewater treatment trains and then processed in a
semi-batch manner. This particular arrangement ofthe equipment
establishes a "central point" within the facility for wastewater'..
treatment and thus allows for manageable labor allocation,
maintenance, capital spending and hazardous chemical handling. To
, do, as this proposal suggests, that is, treat hazardous waste
streams (wastewater streams flowing to wastewater treatment) at
each point of generation is technically and administratively
impossible. As mentioned in the Case Study No. 2, below, large
industrial complexes could have upwards of 10,000 points of entry
in the wastewater treatment system. To identify let alone control
these discharges at the point of generation would be extremely
costly both in capital and labor
. The treatment of waste streams at each point of generation to ' c
eliminate hazardous waste characteristics by separation of specific .
constituents would cause increased risk and worker exposure. The
danger to the workers comes from an increased risk due to the
handling of hazardous waste water treatment chemicals (sulfuric,
sodium hydroxide, etc.) in a production environment as opposed to a
dedicated wastewater treatment facility. Additionally, the
," V freatment of specific hazardous constituents by uidividual process
units would dictate the use of a large work force with a
correspondingly escalated probability of exposure. Labor
bargaining agreements would require minimum starling levels even
though many of these treatment units would be small with relatively -
insignificant waste volumes treated. This would cause
the establishment of a very inefficient system of labor and v
, capital. ,
The establishment of many hazardous waste treatment processes
would penalize generators that chose to operate without a Part B
permit by minimizing waste storage times. Most of the treatment
921
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processes that would be required could not fit within the current
regulatory exemptions (such as elementary neutralization). This
would greatly increase the regulatory burden placed on a facility's
compliance staff and require the consumption of significant agency
resources in permitting and enforcement Agency initiatives under ,
way to reduce the administrative burden on generators treating
waste would help to mitigate the impact of this rule but an
. increased burden would still be placed on the generator and the
delegated RCRA authority. .
Case Study No. 1 - Foundries which utilize impoundments for the
aggregation of water and sand used in the casting process for
purposes of recycling of both may have upwards of 100 points
of entry (points of generation) wastewater system. Some of these
points of generation could discharge acidic wastewaters that meet
the definition of hazardous waste because of the unlikely problem ,
with pH controllers or because of ion exchange regenerativeS.
Foundries recirculate (reuse) water at a flow rate of approximately -
18 million gallons per day and discharge to stream approximately .
0.23 million gallons per day or in percentage terms; 98.7% of the
water used within a foundry is used and reused. Sand is . v
recirculated at a rate of approximately 5 million
tons per year and purchased and disposed at a rate of .
approximately 300,000 tons per year or in percentage terms; 94% of
the sand used within a foundry is used and reused.
High recirculation rates are involved in the foundry process (that
is, water and sand are reused many times To attach LDRs to either
sand or water that is currently being reused and recycled could
result in a lowering of the recirculation rates within the process
which would result in the more ftequent direct sewage or disposal
of these materials. The recirculation rates for the water and sand
in use if Options 2 or 3 of Phase IV are passed will be based upon
UTS contaminant levels and not technical feasibility and as such
would become counter indicative of the goals of pollution
.prevention.
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes: If at some future time, the Agency determines that certain decharacterized wastes require
922
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LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
923
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DCN PH4P094 ,
COMMENTER General Motors Corp.
RESPONDER HM
SUBJECT POG
SUBJNUM 094 /
COMMENT
Case Study No. 2 - the proposed regulations seem to imply that the
, UTS (Universal Treatment Standards) levels at the point of
environmental impact attach to those UHC (Underlying Hazardous
Constituents) present from sources that were a hazardous waste at
- the point of generation. This implication would allow generators
to "back-out" the mass of UHC coming from sources that are not
hazardous waste at their point of generation. However, in order
to do this a generator would have to measure flow and concentration
of each UHC at each of the points of generation (both hazardous and
, nonhazardous) within his process. It is not uncommon for large
manufacturing complexes to have upwards of 10,000 points of
generation (processwastewater contributors - both hazardous and
nonhazardous) being aggregated in wastewater treatment system. To
properly characterize all these steams, in order to conduct a
mass balance, the analytical cost alone (sampling and flow measuring
excluded) would exceed $15,000,000 per manufacturing facility (UHC
scans cost approximately $1,500 each). . .-
RESPONSE
Today's rule does not address .the issue that the commenter raises because it is outside the scope
of the rule. However, EPA shall consider this issue in the future. ,
924
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DCN PH4P094
COMMENTER General Motors Corp. . , , '
RESPONDER HM ', . '
SUBJECT POG
SUBJNUM 094 ,
COMMENT , , , ,
Point of Generation
Discussion of Legislative History in the Phase III proposal (60 FR
11707) describes the legislative intent with regard to dilution of
hazardous constituents either intentionally (diluting for
purposes only to meet LDR) and unintentionally (dilution that .
occurs as part of the manufacturing process). Footnote 5 (60 FR
..' 11707) states: : ' .
"The Committee intends that dilution to a concentration less than
the specified thresholds by the addition of other hazardous waste
or any other material during waste handling,
transportation, treatment, or storage, other than dilution which
occurs as a normal part of a manufacturing process, will not be
allowed." iv (emphasis added) , . .
The language of the first sentence of this passage refers to
dilution of waste during waste handling, treatment, or storage and
as such would still be prohibited from land disposal. '
Congress simplied that intentional dilution is prohibited for those
' wastes that have distinctly entered the"strictures" of RCRA (or
conversely exited the manufacturing process), that is it (the
< hazardous waste) is being handled or managed after it is generated,
transported, treated or stored.
Factors such as persistence, toxicity, mobility, and propensity to
bioaccumulate at the point of environmental impact should be
/ considered when determining the need for expansion of the
Land Disposal Restrictions into Subtitle D wastes and units.
For purposes of the Land Disposal Restrictions "the point of
. generation" is irrelevant along with what has occurred to a
particular contaminant prior to its possible entry into the
' , environmentThe concern of EPA is "what is the waste possibly
doing to the environment"; therefore, concern and focus should be
on "the possible entry into the environment", and not on the
regulatory status of the contaminant when it was first existed. If
EPA is concerned with contaminants possibly entering the
environment then the regulations should be written as such. These
regulations should regulate all streams regardless of whether or
not the waste stream is a decharacterized waste.
925
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RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in C WA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. - ~ " ' '
926
-------
DCN PH4P095 ' s
COMMENTER GE . ,
RESPONDER HM
SUBJECT POG . - -
SUBJNUM 095 . .
COMMENT . . .
As recognized by EPA, the only clear holdings the court made v,
regarding CWA surface impoundments are that formerly characteristic
.waste may be managed in diem without compliance with Subtitle C,
that treatment to attain RCRA treatment standards may be
accomplished inimpoundments, and that formerly characteristic
wastes must meet RCRA treatment standards only upon exiting
impoundments. 11 EPA's suggestion that "the opinion can be read
more broadly" tc include requiring LDR standards to prevent
'' releases via routes other than through wastewater discharge is - ' ' '
incorrect. EPA founded its suggested interpretation of the
decision on twostatements the court made: (1) that the RCRA.land
ban requirement may not be thwarted by cross-media transfers of
untreated hazardous constituents; and (2) that non-Subtitle C
' regulation of CWA surface impoundments is necessary to ensure that
waste remains in such impoundments only temporarily. 12 In EPA's
view, the first statement may require it to promulgate
RCRA regulations reducing all environmental emissions from surface
impoundments, and the second statement suggests that it is required,'
to regulate CWA,impoundment if all wastes do not, in fact, remain
in them only "temporarily ."13 . > . ;
EPA's reasoning is contrary to the decision. The court's
statement regardingreduction of untreated hazardous constituents
entering the environment was clearly directed at pollutant
mass being discharged through the surface impoundment outfalls.
This is particularly clear from 976F.2d 23, footnote 9, where the'
: court provides an example of a mass-balance calculation of
. the amount of cadmium that would have to be removed from a
mixed formerly-hazardous/never-hazardous waste stream to assure
that effluent from the impoundment would contribute no more mass of
cadmium to the environment than would be the case if the formerly
hazardous waste stream was treated separately. Just as
significant is the fact that, with the exception of volatilization
of organic chemicals from formerly ignitable waste streams,
the court never mentions any other route by which chemicals hi
, surface impoundments might enter the environment. There is
. , absolutely no indication that the court was presented with,
orconsidered, the issue of cross-media transfers of UHCs due to
927
-------
air emissions, leaks, or sludge disposal.
The court's statement recognizing that formerly characteristic - /
. wastes are present in CWA impoundments only temporarily does not
support EPA's broad reading. The court's point was that because
wastes are present in CWA surface impoundments only temporarily,
. they should notbe subject to Subtitle C-type standards. 14 EPA's ,
observation that if a surface impoundment leaked, the wastes would
not be there temporarily, is beside the point since this issue was .
not addressed by the court. Moreover, the entire tenor of the
court's opinion was that CWA surface impoundments should not be
regulated under Subtitle C because to do so would be contrary -''.''
to the "accommodation" of the CWA under RCRA that was mandated by
Congress.
RESPONSE , ''' ,
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase HI rule.
928
.
-------
DCN PH4P095 -V
COMMENTER GE
RESPONDER ,HM ' , ,
SUBJECT POG ;
SUBJNUM 095 . "' . ,
COMMENT ,
Not only did the Agency not intend the Proposed Rule to apply to
wastewater sumps, wetwells, and lift stations, it is unlikely that v '
placement of materials in such units would be land disposal because
such units are not the final resting place of wastes. In Chemical
Waste Management, the court held that wastewater being managed in a
, surface impoundment was no trequired to meet land disposal
standards prior to entering the impoundment In distinguishing
its decision from a previous decision in which land disposal
standards had to be met before waste was placed in the land-based
unit, the court noted that liquids are only placed in CWA
surface impoundments temporarily, while in the previous case, the
"land treatment" at issue represented the final resting place of
the hazardous wastes.28 The court's decision makes clear that the
- land disposal restrictions were intended to apply to land-based
. units that represent the "final resting place" of hazardous waste.
-, Wastewater sumps, wet wells, and lift stations, however, are not
the final resting place of the wastewater. If fact, the wastes
managed in such units generally reside in the unit for even
less time that waste would generally reside in a surface
impoundment. Typically; sumps, wet wells,and lift stations are
designed to have waste residence times of much less than 24 hours.
For these reasons, if the Agency adopts either Option 2 or Option
3, the Agency should clearly state that the Proposed Rule does not
apply to units that (i) are constructed of reinforced concrete,
(ii) are part of a wastewater collection system, and (iii) are
designed and operated so that the residence time of waste managed
v in the unit is less than 24 hours. Such "exempted" sumps., wet
wells, and lift stations should also include units meeting the
above criteria and in which neutralization of wastewater is
accomplished.
If the Agency determines that such units are subject to the
requirements of Option 2, then the Agency should reevaluate, the
potential impacts of the Proposed Rule. As noted above,
the background documents supporting the Proposed Rule clearly did
not consider such sumps in estimating the potential costs and
benefits of the Proposed Rule. Moreover, the Agency did
hot consider the potential risks posed by such units. Because of
929
-------
the tremendous number of such units in operation (which GE
estimates to be at least equal to the number of surface
impoundments previously identified) and the.potential impact of .
having to bring such units into compliance with Options 2 or 3, the
Agency must carefully review the costs, benefits, and risks
associated with such units. i
-» f
RESPONSE ' " *
. ' '
Many of the point of generation issues were resolved when, on March 26,1996; President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
930
.
-------
DCN PH4P095
COMMENTER GE .
RESPONDER HM
SUBJECT POG
SUBJNUM 095 :
COMMENT . . ' . . ; .
3. Ifthe Agency adopts Option 2, the Agency should adopt GE's
, proposed version of the"battery Hmits".cohcept for determining
the point of generation because the current rule for determining
the point of generation is confusing and results in overbroad
application of Option 2. . , ' .
One of the most crucial concepts, of the Proposed Rule, and any
other land disposal standard, is the concept of "point of
generation." Traditionally, the Agency has taken the position
that land disposal restrictions apply at the point of waste
generation.33 Similarly, under the Proposed Rule, it is at the
point of generation that one must determine whether the
wastewater exhibits a hazardous characteristic, whether the air
emissions standard of Option 2 applies, or whether the wastewater
is exempt from the Proposed Rule because levels of underlying
hazardous constituents are below the universal treatment standards.
Neither the Agency's regulations nor the Proposed Rule define
"point of generation." In general, however, the Agency has
traditionally taken the position that the point of generation;.
and therefore the point at which land ban restrictions apply, is
the point at which a secondary material is first removed from the
process in which it is produced. As has been previously noted,
however,appiying land disposal restrictions at the point of
generation poses a number of difficulties.34 Consequently, the '
Agency requested comments on other approaches for determining
applicability of land disposal restrictions. General Electric has
previously submitted comments on this issue.35
In those comments, GE supported the adoption of a variation of the
Agency's proposed "battery limits" approach. Under this approach,
the determination of whether land disposal restrictions apply to
wastewater would be made at the first readily accessible sampling
point downstream of a process or group of processes.
As GE has' previously pointed out, the "point of generation"
approaches previously proposed by the Agency do not take into
account the tremendous complexity of wastewater collection
and treatment systems at large manufacturing facilities. Many of
these plants, including most of GE's facilities, are older
facilities that have grown in a somewhat haphazard fashion. As
931
-------
such,, the wastewater lines at GE'sfacilities are not always
segregated by process or product By defining the "point of
generation" to be the first readily accessible sampling point
downstream of a processor group of process, the Agency could avoid
all of the practical problems that would be otherwise encountered
in trying to determine wastewater characteristics at a point ,
'farther upstream.Accordingly, GE believes that the Agency should
adopt this "point of generation" approach for determining
applicability of Option 2..
i **'
RESPONSE
s,*-
The Agency did propose several options for the determination of point of generation, however,,
many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EP,A study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, .the EPA will revisit the options for point of generation that were
presented in the Phase HI rule. .
932
-------
' . - ' . ' I - . . .
''*''' ''"' V ' ' - ' '"'
DCN PH4P099
COMMENTER Ohio EPA
RESPONDER HM
SUBJECT POG \ . ,
SUBJNUM 099 ,
COMMENT . '
Sludge removal should be considered a point of generation of a new
wastes stream. These sludges should fall under RCRA only when , .
failing TCLP standards and otherwise be considered non-hazardous ''
.. (55 FR 22661-62). -
; Solid waste facilities are not prepared to handle non-hazardous
wastes involving treatment standard notifications and . .
certifications. These Subtitle D facilities may also be very ...
hesitant in handling wastewaters or wastewaters treatment sludges
for fear of future liabilities under the hazardous waste programs. '
' ' ' . - '''..'
RESPONSE
-> '
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. EPA alsojs not altering change of treatabiliry group
principles discussed in'earlier FR notices. ''".' :
933
-------
DCN PH4P100 -
COMMENTER Phillips Petroleum , - .-
RESPONDER HM
SUBJECT POG . .
SUBJNUM 100
COMMENT
IV. The "Treatability Group Doctrine" Was Not Addressed In the
"Third-Third" Decision.
As part of the Third-third LDR rule, EPA determined that when a -
. prohibited characteristic waste changes treatability groups, this
creates a new point of generation for purposes of determining ;
if the land disposal restrictions apply. The treatability group
doctrine was not challenged as part of the "Third-third"
litigation, nor was it addressed by the court in the "Third-third"
decision. Under EPA's previous pronouncements, the application of . - s
the treatability group rules to characteristic wastes was .
straight forward. EPA has not suggested any reason, other than an
overly aggressive reading of the "Third-third" decision, to reverse
this longstanding Agency policy. Consequently, EPA should not
change the "treatability group doctrine." >
RESPONSE x
The Agency thanks the commenters for the interest in this issue. It is not EPA's intent to change
the treatability group doctrine. In today's rule, EPA is only clarifying specific point of generation
issues.
934
-------
DGN ,PH4P102 -
QOMMENTER Chevron
RESPONDER HM
SUBJECT POG ,
SUBJNUM 102 . .
COMMENT ,'-'.-' .'.-
^5) Chevron Supports EPA's Interpretation That The Generation Of
, A New Treatabiiity Group Is The New Point Of Generation For
Purposes Of Determining Where LDR Prohibitions Apply.
For wastewater treatment sludges in non-hazardous surface . '.
impoundments, Chevron supports EPA's interpretation that the
x . generation of a new treatabiiiry group is the new point of . - . .,
generation for purposes of determining where LDR prohibitions
apply. Thus, sludges derived from wastewater management in CWA and ^ '.
CWA-equivalent impoundment systems should not be subject to LDRs
unless they themselves are hazardous wastes. , . '
RESPONSE ,
< \ ' ' '
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so-long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacierized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. ' v .
935
-------
DCN PH4P109 .
COMMENTER Ford .
RESPONDER HM ,
SUBJECT POG .-...;.
SUBJNUM 109
COMMENT _.-.-'
x Option 3 requires \yaste streams to be treated such that the
underlying hazardous constituents would meet the universal
treatment standards at the "point of generation." Typical
WastewaterTreatment facilities at manufacturing facilities have
been designed so the industrial wastewater is segregated into at
most two or three streams. That is oily wastewater and wastewater
requiring metals treatment. These wastewaters are aggregated at
the headworks of the wastewater treatment facility and then
\ processed in a semi-batch manner. This particular arrangement of
the equipment establishes a "central point" within the facility for
wastewater treatment and thus allows for manageable labor
allocation, maintenance and capital spending. To treat
hazardous waste streams (wastewater streams flowing to wastewater
treatment) at each point of generation is technically and
administratively impossible. To identify and control these
discharges at the point of generation would be extremely costly,
with respect to both capital improvements and labor, with minimal
environmental benefit .
''',.'"" .
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required'that EPA study the characteristics of such decharacterized
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. . . , ''...'
936
-------
DCN :-- PH4P113 ,
COMMENTER Chemical Manufacturers Assn
RESPONDER HM\ ,
SUBJECT POG
SUBJNUM 113 ' . .:-;
COMMENT /
A. EPA Should Not Promulgate Phases III or IV Until It Has ,
Clarified Its Interpretation Of The Point of Generation. '
EPA is planning to. issue "a Federal'Register notice clarifying (and
perhaps amending) its interpretation of the point of generation of
hazardous wastes. This issue is crucial to facilities who will need
to develop strategies for complying with Phases III and IV. The
point at which a waste is either generated or prohibited will
whether and what LDR standards are applicable. Thi sclariiication
could eliminate certain waste streams from either Subtitle C
regulation (or clarify that they never should have been included in
the first place) or the land disposal restrictions. Thus, N .
. the clarification could have a profound effect on the upcoming LDR
rules and on HWIR, and should be issued before any of those rules
, are finalized. Indeed, it is hard to see how EPA can make a final
decision on any these rules without deciding the point of
generation issues, since the environmental and regulatory impact of
these rules will change depending on how the Agency decides the
point of generation issues. Thus, unless the Agency decides to
, / choose Option 1, we urge EPA to refrain from finalizing either
Phase III or Phase IV until after it has ciarified the point of
generation.
RESPONSE .'' . ..'.''''., V ." ' " "' - ' . ' .'
The Agency did propose several options for the point of generation in the Phase III rulemaking, ,
however, many of the point of generation issues were resolved when, on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 1996. this Act
provided, among other things, that decharacterized wastes treated in CWA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed. The Act also required that EPA study the characteristics of such .
decharacterized wastes. If at some future tune, the Agency determines that certain
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule.. However, EPA has chosen to clarify
certain specific point of generation issues in the Phase IV rule.
937
-------
DCN PH4P113 -, .'''.,
COMMENTER Chemical Manufacturers As
RESPONDER HM '
SUBJECT POG
SUBJNUM 113 . V .
COMMENT
; h) EPA needs to redefine the "point of generation" .definition in
order for the Pollution Prevention exemption to be useful. (Item
#8) . .
CMA sees a significant problem in attempting to use the Pollution
Prevention Compliance Alternative as a way to obtain an exemption
from the Phase IV regulations the sheer number of points of
generation that would likely have to be analyzed. .
A chemical facility could have on the order of a hundred or more
characteristic wastestreams which would need to be sampled and
analyzed to determine the total amount of a specific underlying
hazardous constituent that is generated at the facility. This
,. enormous amount of points will create a huge amount of costs
associated with sampling and analysis, and deciding which streams
to address in minimizing pollution, let alone the difficulty of
demonstrating compliance with the exemption. Such a situation will .
likely keep facilities from even considering using this exemption
criteria, with the subsequent disadvantage that the facilities are
addressing treatment of
wastes as opposed to minimizing the generation of wastes. '
Thereis a need to redefine the "point of generation" in order to
make this exemption at all appealing. Such a redefinition was
discussed in Section I V.D of the LDR Phase III proposal. Locating
the "point of generation" to the battery limit of the facility
units would significantly reduce the number of waste streams that
would need to be addressed when using the Pollution Prevention - ' ;
exemption option. This will make the option much more workable to
facilities with the ultimate advantage of promoting pollution
prevention. . .
It is CMA's recommendation that EPA redefine the definition of
"point of generation" to be the battery limits of the facility's
units.
RESPONSE ;
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are ho longer
938
-------
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized ',
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards', the EPA will revisit the options for point of generation that were
presented in the Phase III rule,
939
-------
DCN . PH4P113 .
COMMENTER Chemical Manufacturers As .
RESPONDER HM
SUBJECT POG
SUBJNUM 113 -
COMMENT ,
.'i ^
i - " '
*. . '
1. CMA suggests that the Agency define the point of generation for
wastes which polymerize on a rapid time frame. . '
"CMA requests that the Agency determine that materials that are
undergoing rapid polymerization (i.e., within a few moments of .
removal from the process), without catalyst addition should be
evaluated as to their physical state (i.e., liquid or solid using
the paint filter test) once the material has reached standard
temperature and pressure. Thus, a waste which is solid within
minutes of being removed from a process should be viewed as a
generated solid for purposes of waste classification. '
RESPONSE '
This question is outside the scope of the point of generation issue and has been addressed in the
response to comments for POL YM. , .
940
-------
DCN PH4P116
COMMENTER Occidental Chemical Go.
RESPONDER HM
SUBJECT POG , . . ';.
SUBJNUM 116 ' » .
COMMENT - , , ,
C. No treatment standards should be set for non-hazardous
sludges.
OxyChem agrees,with EPA that' sludges produced in treatment ;
impoundments should be considered new points of waste generation.
- RCRA Subtitle C sludge management constraints should apply only if
sludges are hazardous wastes when removed from impoundments.
i D, If Option 2 is selected, EPA should clarify requirements for
, CWA and CWA-equivalent impoundments where sludges are destined to ,
be left in place. .
Sludges produced in existing wastewater treatment impoundments
that close with non-hazardous residues in place would not be r
subject to UTS standards unless sludges are removed. These units ' ' , .
v would, however, be subject to groundwater.monitoring and corrective ,
action, if necessary. . '. ' ,, < ,
/.'>'' ' . ' \ '
RESPONSE -
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in C WA-regulated units are no longer ;
prohibited from land disposal so long as they are not hazardous wastes at the point .they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized .
wastes. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. , ' . ' ,
941
-------
pCN PH4P116 . .
COMMENTER Occidental Chemical Co. ,
RESPONDER HM
SUBJECT, POG :
SUBJNUM 116 . '-,.-.
COMMENT ,
IV. Provide Flexibility and Cost Effective Alternatives
A. Requiring treatment of minor constituents in decharacterized
wastewater before impoundments would disrupt our current wastewater
. treatment operations and would be prohibitively expensive for ,
minimal environmental benefits. .
OxyChem agrees with EPA and is also not in favor of Option 3. Our
previous estimates indicated capital, costs up to $25 million could
be required to replace wastewater impoundments with tanks.
B. The definition of point of generation should be broadened.
If Option 2 or 3 is selected, as stated in our comments on the
Phase III proposal, a "battery limits" definition is a practical .
way to simplify compliance determinations. Cost effective
accommodation with existing collection and treatment systems will
result from this approach.
RESPONSE
i
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. This Act provided,
among other things, that decharacterized wastes treated in CWA-regulated units are no longer
prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharacterized .
wastes.. If at some future time, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule. .
. 942
-------
DCN PH4A070 : .
COMMENTER FMC Corporation / ;
RESPONDER HNT
SUBJECT, POG ,
SUBJNUM 07,0 * . . '
COMMENT VIII. EPA Clearly Needs To Define The "Point Of Generation" ,
As Battery Limits, EPA needs to clearly define the "Point of
I Generation". FMC has previously expressed support for a x
"battery limits" approach to "Point of Generation" .68 This
would include revising 40 C.F.R. _260.10 by adding the
definition of "Point of Generation" as: "The point at which
, wastes become subject to Subject C regulation and at which land
disposal restrictions apply is the point of exit of material - ':
from a process, except for aqueous wastes managed in Clean Water
Act (CWA) or CWA equivalent systems, where the point of
generation is defined as the wastewater discharge point(s) for
the process area (also commonly termed "battery limits11)." It is
, FMCs understanding that EPA is planning to issue a Federal .
Register notice clarifying (and perhaps amending) its
, . interpretation of the point of generation of hazardous wastes. ' l.
This issue is crucial, because a determination of the point of :
generation can determine whether a material is a hazardous waste ' ' "
at all, and what LDR standards are applicable. Even more
fundamental, clarification of the point of generation will ,
determine whether a material is a waste at all. This .
clarification could eliminate certain waste streams from '
Subtitle C regulation (or clarify that they never should have
been included in the first place). Thus, the clarification could
have a significant effect on the Phase IV LDR and Phase IV
Supplemental rules and on the Hazardous Waste Identification
Rule (HWIR), and should be issued before any of those rules are
finalized. ^ '
RESPONSE
The Agency did propose several options for the point of generation in the Phase III rulemaking,
however, many of the point of generation issues were resolved when, on March 26,1996,
President Clinton signed into law the Land Disposal Program Flexibility Act of 199.6. This Act
provided, among other things, that decharacterized wastes treated in CWA-regulated units are no
longer prohibited from land disposal so long as they are not hazardous wastes at the point they
are land disposed. The Act also required that EPA study the characteristics of such
decharacterized wastes. If at some future tune, the Agency determines that certain
943
-------
decharacterized wastes require LDR treatment standards, the EPA will revisit the options for
point of generation that were presented in the Phase III rule.
944
-------
DGN PH4A084, ,
COMMENTER Chemical Manufacturers As . .
RESPONDER HM : ' ;
SUBJECT POG .'.';"
SUBJNUM 084 , ,
COMMENT CMA Continues to Advocate a Battery Limits Approach for
Defining the Point of Generation As we suggested-in our
comments to EPA's proposed Phase III rule, CMA urges EPA to
clarify the point at which a facility must determine that wastes
are prohibited from land disposal. It is CMA's understanding
that EPA is planning to issue a Federal Register notice
clarifying (and perhaps amending) its interpretation of the ' -
"point of generation" for hazardous wastes. This issue is . .
crucial to the RCRA program because the point of generation ._-.'
determine whether a material is a hazardous waste and what LDR . .
standards are applicable. Thus, the clarification could have a
significant effect oh future LDR rules and on the Agency's
Hazardous Waste Identification Rule (HWIR). Thus, as we
recommended in our comments on the Agency's proposed Phase IV '/'-. ...
rules, EPA should clarify the point of generation before any of .
these rules are finalized. , ..."
RESPONSE
Many of the point of generation issues were resolved when, on March 26,1996, President
Clinton signed into law the Land Disposal Program Flexibility Act of 1996. .This Act provided,
among other things, that decharactenzed wastes treated in CWA-regulated unite are no longer
. prohibited from land disposal so long as they are not hazardous wastes at the point they are land
disposed. The Act also required that EPA study the characteristics of such decharactenzed
.wastes. If at some future tune, the Agency determines that certain decharacterized wastes require
LDR treatment standards, the EPA will revisit the options for point of generation that were
presented in the Phase III rule.
945
-------
946
-------
DCN PH4P001 . ' .
COMMENTER Grady White Boats -
RESPONDER JL ^
SUBJECT POLM
SUBJNUM 001
COMMENT"
This letter is in support of the EPA's proposal1 to add
'polymerization as an approved treatment technology for disposal of
excess of poly ester resin. I would like to thank the EPA t :
.' for recognizing the National Marine Manufacturer Association's
petition to add this treatment technology. The addition of this
treatment technology-will allow, us to make usable products
with previously unusable waste resin and reduce waste through , , .
pollution prevention. , .-
RESPONSE:,- ' ' " '.,, , ;'...'''-".. .-''.'.-. '
N, . i ' ' ' ,
J . '
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high-
TOC ignitable'(D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the availability of this treatment method for high-TOC ignitable
wastes will reduce the risks associated with these wastes and adequately protect human health
and the environment.
947
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DCN . PH4P002
COMMENTER Olympic Boat Company
RESPONDED JL ; , . , ''..'''.
SUBJECT POLM
SUBJNUM 002
COMMENT .
It was with great interest that I read the .proposed rule regarding
"Polymerization as an approved treatment technology for polyester
resin." Needless to say it makes me very happy. This material is no
different than the boat that sets in the water. ,
This will allow boat builders as well as all the fiberglass
industry the opportunity to reduce waste ,
through pollution prevention, making usable products that were
previously considered unusable waste. j '
Olympic Boat Company Inc. wants to thank NMMA for their petition
on this mater and also we want to thank your department for taking
. these progressive steps toward the reducing of the waste stream. ,
RESPONSE: .
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for nigh-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that this new method of treatment will be beneficial to all concerned.
948
-------
DCN PH4P003 .
COMMENTER Sunfish Laser . ' . '
RESPONDER JL . ' - ...'-
SUBJECT POLM .' '
SUBJNUM 003 .
COMMENT . . " , .
Sunfish Laser is strongly in favor of approval of POL YM method of .-
treatment for High-TOC Ignitable D001 wastes. By adding
polymerization as an approved treatment technology we,will be able
to reduce waste through pollution prevention as well as reduce
emissions through source.reduction
RESPONSE: ;
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the addition of this method of treatment will be beneficial to all
concerned. ' .
949
-------
DCN . PH4P004 , :
COMMENTER Larson
RESPONDER JL ^
SUBJECT POLM
SUBJNUM 004 ' \ . ' .
COMMENT ,
We fully support your proposal to amend the RCRA regulations that
adds polymerization as an accepted method of treatment for TOC
ignitable (D001) wastes. We believe that this method of treatment
is environmentally acceptable and also the most economical for the
manufacturing sector.
RESPONSE:
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology i(BDAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the addition of this method of treatment will be beneficial to all
concerned. .
950
-------
DCN-, PH4P005 . s ''.
COMMENTER Arctco , '
RESPONDER JL . '
SUBJECT POLM , .-
SUBJNUM 005
COMMENT , . ;
Arctco feels that this is a very wise decision as this will reduce
our waste and prevent environmental contamination. Arctco strongly .
, agrees with the Agency's statement that "the ongoing practices of
polymerizing characteristic waste to a non-characteristic inert '.',
mass adequately protect human health and the environment."
' ' t ' ' , ' . ~ . '
RESPONSE: ;, ;
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the addition of the method of treatment will be beneficial to all
concerned. - -
951
-------
DCN PH4P006
COMMENTER Regal Marine Industries
RESPONDER JL ,
SUBJECT POLM
SUBJNUM 006 . : '..-..'
COMMENT ' ' v . ' '
When considering the approved process for treatment of waste
resins and gelcoats, being able to polymerize the product is most
definitely a win/win situation. It helps in the following ways.
First of all, a usable product can be made with the waste (parking :
lot bumpers), and it reduces the costs associated with hazardous
waste removal. Enclosed are pictures of parking lot bumpers that
our firm made using waste resin and gelcoat.
I applaud your efforts and support this proposal to add
polymerization as an approved treatment technology for Polyester
Resin. .
RESPONSE:
i. . - h
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. In addition,
the Agency thanks the commenter for the information on recycled-content products provided by
the commenter. The Agency agrees with the commenter that the availability of this treatment
method for high-TOC ignitable wastes will be beneficial to all concerned.
952
-------
DCN PH4P007 '
COMMENTER Godfrey Marine . .'. . ' ,
RESPONDER JL , .
SUBJECT POLM
SUBJNUM' oo? ; '
COMMENT
We would like to applaud the EPA for recognizing the NMMA's
position to add polymerization as an approved treatment technology
for disposing of unusable resin waste.
This technology will help reduce waste through pollution
prevention and will also enable us to make usable products with
previously unusable resin waste.
, This is a "win - win" situation for everyone and should be an
action welcomed by all in the recreational boat building industry.
RESPONSE: , ,
A.
1
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the availability of this treatment method for high-TOC ignitable
.wastes will be beneficial to all concerned.
953
-------
DCN PH4P008 ' ' . , . " .
COMMENTER Florida DEP. .
RESPONDER JL , -
SUBJECT POLM
SUBJNUM 008 : '
COMMENT
Polymerization Treatment of High TOC D001 Wastes: Based on what I
know of boat builder waste management practices, non-polymerizable
wastes are already being added to waste polymerized resins for
disposal. Sometimes manufacturers have to discard resins
because they won't polymerize properly. The resins remain . , ,
semisolid, too thick to be properly tested by either the
Pensky-Martens or Setaflash methods. If polymerization is .
incomplete, but the residual can't be tested, will EPA consider the
waste to have been treated properly? Two modifications seem
necessary:
1. Split the high TOC treatability group uito 2, only allow
" polymerization for polymerizable organics that have not been mixed
with other hazardous wastes. '
2. Require the decharacterized high TOC waste to either be
incinerated in a MSW facility operating in compliance with the :
Clean Air Act or meet the universal treatment standard. .
Polymerization conducted within the original container within 90
days of the decision to discard the material is already excluded !
from regulation under §261.4(c). The waste is not be subject to the,
accumulation provisions under 262.34, and therefore would not be' , ,
subject to land disposal restrictions per §261.5 and §262. l(b).
The polymerization process can generate excess heat and fumes and ..
should not be conducted in units which are not subject to 262.34.
RESPONSE: .
The commenter does not specify the characteristics of the non-polymerizable wastes that the
commenter asserts are being added to waste polymerized resins for disposal. However, the
Agency notes that if polymerization does not result in an inert mass, the treatment standard is not
achieved. Such wastes must be treated further, or treated using an alternative treatment method
(i.e.; CMBST or RORGS). In addition, the Agency points out that polymerization is being added
to the methods of treatment designated as Best Demonstrated Available Technology (BOAT)
only for high-TOC ignitable (D001) wastes resulting from commercial polymerization processes.
This treatment technology is not being finalized for other hazardous wastes. Other hazardous
wastes, including non-polymerizable wastes, must be characterized and must meet all applicable
LDR treatment standards for the hazardous constituents contained in the waste, including the
UTS, prior to land disposal. The mixing or dilution of non-polymerizable wastes, with
'-'.' ' . v
-.''. . .' ''954 . . ' ' '
-------
polymerization process wastes is not acceptable treatment.
955
-------
DCN PH4P009 ,
COMMENTER National Marine Manufacturers
RESPONDER JL -
SUBJECT POLM ' * . x,
SUBJNUM 009 . - .
COMMENT
The National Marine Manufacturers Association, with it's 1600
member companies, is grateful to the EPA for recognizing our
petition and proposing to add polymerization as an
approved treatment technology for polyester resin. By permitting
boat builders to polymerize scrap resin, usable products can now be .
made with what had previously been unusable waste resin:
We applaud this effort and are encouraged by EPA's response to our
petition. '
RESPONSE:
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the availability of this treatment method for high-TOC ignitable
wastes will be beneficial to all concerned.
956
-------
I
DCN PH4P011 . .
COMMENTER Blue Water Boats ,
RESPONDER JL t .
SUBJECT POLM
SUBJNUM Oil . -'','
COMMENT . ;
: With present technology and design, large quantities of polyester
resins are used in the production of fiberglass boats. As a result,1 . .
there are a variety of containment systems required for storage
and transportation. Our concern is how to clean and/or dispose of
residual resin left inihe used containers safely, cost effectively .
and within environmental guidelines. Here are some current options:
1. Cleaning containers requires solvents and rags. Solvents .
evaporate and the rags now contain the resin. Labor intensive, does ,
not solve the problem , . , '
2. Incineration bums, depleting supplies of fueland emits its .
own hazardous pollutants, which is dangerous and very expensive. .
3. Organic recovery is not practical with the high level viscosity
of polyester resins. ,
. 4; Fuel blending would require a chemist, an engineer and a
pyro-tech to apply this method, which is not practical.
5. Polymerization requires taking two hazardous residual liquids . ' '
(resin & MEKP) and putting them together to form a non-hazardous
solid. Therefore, safe, environmentally sound, inexpensive and , ; -
effective. ..''"'
Allowing Fiberglass Reinforced Plastics (FRP) manufacturers to
dispose of residual resins through polymerization involves a common
sense approach toward the balance between the environment and
business. Your consideration and approval of this technique are
needed. >
RESPONSE: . ,
In today's final rule, EPA is adding polymerization (POLYM) to the methods of treatment '
designated as Best Demonstrated Available Technology (BDAT) for high-TOC ignitable (D001)
wastes resulting from commercial polymerization processes.The Agency agrees with the
commenter, and believes that polymerizing characteristic wastes to a non-characteristic inert
mass adequately protects human health and the environment The Agency notes that 40 CFR
262.34(a) provides that a generator may accumulate hazardous waste on-site for 90 days or less
without a permit, or without having interim status, if the waste is placed either in containers that
are hi compliance with subparts I, AA, BB and CC of 40 CFR part 265 and/or in tanks in
compliance with subparts J, AA, BB and CC of 40 CFR part 265 (except for §§265.197(and
265.200), and/or in drip pads if the generator complies with subpart W of 40 CFR part 265 as
957
-------
well as .additional record keeping requirements.
958
-------
DCN , PH4P013 .:'-. :
COMMENTED New York DEC
RESPONDER JL
SUBJECT POLM
SUBJNUM 013 . .
COMMENT . , . .
DEC has no objections to the proposed polymerization (POLYM)
method of treatment for D001 High-TOC igniiable wastes.
RESPONSE: ,
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes:
959
-------
DCN PH4P031 \
COMMENTER Department of Energy
RESPONDER JL x
SUBJECT POLM . ,
SUBJNUM 031
COMMENT
III.C POL YM Method of Treatment for High-TOC Ignitable
D001 Wastes
1. p. 43679, col. 1 EPA proposes to add polymerization
(POL YM) to the set of required methods of treatment designated Best
Demonstrated Available Technology (BOAT) for high-TOC ignitable
(D001) wastes resulting from commercial polymerization processes.
DOE believes that polymerization is a superior method for treating .
certain high-TOC ignitable D001 wastes, and supports its addition
to the set of treatment methods designated as BOAT.
11 ^ ., ~
RESPONSE: '
A '* - I .
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOG ignitable (D001) wastes resulting from commercial polymerization processes.
960
-------
DCN PH4P047
COMMENTER Merck
RESPQNDER JL :
SUBJECT POLM t \ ' .
SUBJNUM 047
COMMENT . , - - i
4. .The EPA has proposed to allow Polymerization as a method of
treatment for high TOC DOOl wastes. While we support this change, ' .,
we request that the Agency also reconsider it's determination that
biological waste treatment is not an appropriate method for high
TOC DOOl wastes. Merck and other companies have submitted extensive
data demonstrating that wastewater treatment is an effective means ' -» '
of treating these wastes; that with equalization these wastes
' are easily assimilated and thoroughly treated in a waste treatment
plant; that air emissions of these compounds in many cases are ,
minimal (see comments on proposed Pharmaceutical
Effluent guidelines); and that many of these streams have no
underlying toxic constituents (such as a waste ethanol stream) and . \
yet are prohibited from a very effective and safe means of "''.. '
treatment. There now exists information that would allow companies
to predict which wastes have a higher tendency to volatilize in a
waste treatment plant and as for "toxics along for the ride" if :
identifying underlying constituents is appropriate for low TOC DOOl
streams it is not clear why this would not be appropriate for high
TOC DOOl streams.
RESPONSE: '''.':' ' ' ; '. ' ' , , ' .-'...'.
-. ;. ' - ' ,
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available technology (BDAT) for high-
TOC ignitable (DOOl) wastes resulting from commercial polymerization processes.
The Agency thanks the commenter for submitting data along with the request for the Agency to
reconsider its previous decision not to designate biological treatment as BDAT for bigh-TOC
wastes. The commenter's request is beyond the scope of PQLYM. However, EPA has addressed
the issue of treating bigh-TOC wastes hi tank based biological treatment systems in the preamble
discussion of Point of Generation. The Agency is taking the position that this type of treatment
is allowable if the system does not include any land disposal units. The sludge generated from ,
the process should be evaluated as generated to see if it is a hazardous waste.
961
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DCN PH4P048 , ,, ,
COMMENTER Chemical Waste Management
RESPONDER JL ' ,
SUBJECf POLM '
SUBJNUM 048 . '
COMMENT
C. POL YM Method of Treatment for High-TOC Ignitable DOO 1 Wastes
(60 Fed. Reg. at 43,679)
The Agency is proposing to add polymerization (POLYM) to the set /
of required method of treatment for high-TOC ignitable (DOO1)
wastes resulting from commercial polymerization processes. POLYM
is proposed as an alternative to CMBST or RORGS for only those
high-TOC D001 wastes which are chemical components in the
manufacture of plastics (See 60 Fed. Reg. at 43,679). Typically
waste polyester/styrene monomers and MEK peroxide are commonly
disposed by reacting small quantities together to create fiberglass
scraps that are no longer characteristics. POLYM would allow the
practice of polymerizing high-TOC ignitable(DOOl) characteristic
wastes to a non-characteristic inert mass which the Agency believes
adequately protects human health and the environment.
CWM generally supports the promulgation of POLYM as a
specified technology for high-TOC ignitable wastes from the
plastics manufacturing industry; however, CWM believes that the
.description of POLYM proposed in 268.42 Table 1 should be modified.
The current description reads as follows: ^ :
"P.OLYM - Formulation of complex high-molecular weight solids
through polymerization of monomers in high-TOC DOO 1
nonwastewaters." . x
CWM believes the description should be amended to reflect that
tills specified technology is only available for those high-TOC D001
wastes which are chemical components in the manufacture of
plastics. CWM believes that a list which reflects some of the >
acceptable constituents would be helpful. In addition to the list
the suggested change is as follows: .
"POLYM-Formulation of complex high-molecular weight >
solids through polymerization of monomers in high-TOC
D001 nonwastewaters which are chemical. Components in the manufacture
of plastics." .''.""
RESPONSE: ^
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
962
-------
TOC igiiitable (1)001) wastes resulting from commercial polymerization processes. - -
' . ' *
' , ' \" . _
The Agency appreciates the commenter's suggestions for clarifying the availability of
polymerization for high-TOC DOOI wastes which are chemical components in the manufacture
of plastics. The Agency has included this clarification in the preamble to the final rule.
At this time the Agency is not publishing a list of acceptable constituents. EPA believes that the
definition of POL YM is explicit enough forgenerators to make a determination as to whether '
POLYM is applicable to their wastes. Anyone who has a question is always free to contact State
or EPA pfficials'at any time. . .
963
-------
DCN PH4P063 , : ' . /
COMMENTED Laidlaw.
RESPONDER JL
SUBJECT POLM . .
SUBJNUM 063.
COMMENT .
4.0 POLYM as a Method of Treatment for High-TOC Ignitable D001
Wastes - ! ' ,
LES does riot support the Agency's decision to allow POLYM as a ,
alternative method of treatment for those high-TOC D001 wastes
which are chemical components in the manufacture of plastics. While
the polymerization technology employed may reduce the toxicity of
the waste (although this has not been adequately demonstrated), it
does not reduce the overall volume of waste which goes against the
general goals of waste minimization. Further, the Agency has not
addressed whether the polymerization process adequately treats any '
underlying hazardous constituents that may be present in the waste:
RESPONSE: , , .
Based upon public comment, the Agency decided to finalize the proposal to add polymerization
to required methods of treatment designated Best Demonstrated Available Technology (BOAT)
for high-TOC ignitable wastes resulting from commercial polymerization processes. The
Agency made this determination alter analyzing data made available to the Agency and after .
reviewing public comments submitted in response to the proposed rule. The Agency believes
that the practice of polymerizing characteristic wastes to a non-characteristic inert mass
adequately minimizes threats posed by land disposal of the waste.
The Agency has several goals for waste minimization. Although the primary goal of waste
minimization is source reduction, other goals for waste minimization include reducing the
quantities of wastes that are disposed and reducing the overall toxicity of wastes. A reduction in
the toxicity level of wastes treated by polymerization is achieved through the reduction in -
mobility of the constituents in the wastestream. Although the treatment of high-TOC ignitable
wastes that are chemical components in the manufacture of plastics may not necessarily result in
a chemical conversion of the UHC, such treatment will result hi reducing the mobility of UHC
through chemical bonding. N
The Agency believes that the addition of polymerization to the list of designated BDAT for
wastes resulting from commercial polymerization processes also will allow some generators to
recycle the waste into useable products. The Agency received public comments that included
information on recycling alternatives for such wastes treated by polymerization. Therefore, the
Agency disagrees with the commenter and asserts that the addition of polymerization to the set of
required methods of treatment designated as BDAT for high-TOC wastes resulting from
964
-------
commercial polymerization processes may further the Agency's waste minimization goals. '
965
-------
DCN PH4P065 . ' '.-...
COMMENTER Safety^Kleen Corp. . .
RESPONDER JL
SUBJECT POLM ,
COMMENT 11, Safety-Kleen supports the Agency's proposal to add
polymerization (POLYM) as a BOAT treatment method for high-TOC
ignitable (D001) wastes from commercial polymerization
processes. Safety-Kleen believes that the POLYM treatment
technology provides the regulated community with a
cost-effective, environmentally sound method of management for
high-TOC ignitable (D001) wastes resulting from commercial , -
polymerization processes. However, Safety-Kleen seeks Agency
clarification that it is possible to generate monomer D001
wastes which continue to undergo polymerization without the need N
for additional catalyst (e.g., where catalyst is present in
lower concentration than needed for commercial production, such
as a bad reaction batch). Thus, the addition of a polymerizing ' -
component or catalyst to the discarded material need not be a
, required condition where the material is deemed capable of
polymerizing fully without additional catalysts. 12. For wastes.
. which polymerize on a rapid time frame, Safety-Kleen requests .
that the Agency find that the point of generation is after such
,. polymerization occurs for purposes of waste classification and
therefore for LDR determination. Safety-Kleen requests that the
Agency determine that materials that are undergoing rapid
polymerization without catalyst addition can be evaluated as to
their physical state (i.e., liquid or solid using the paint
filter test) once the material has reached standard temperature >
and pressure, rather than at the immediate point and time of
generation. Stated another way, a waste which is solid within
. minutes of being removed from a process can be viewed as a
generated solid for purposes of waste classification.
RESPONSE , ,
.The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated'Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes.
Polymerization may be used to render both the reactive monomers and the catalysts in the
reaction non-hazardous. In addition, other high-TOC (D001) monomers and catalysts, besides
polyester/styrene monomer and MEK peroxide, that are hazardous because they exhibit the high-
TOC/D001 characteristic, may be managed through polymerization. If a waste monomer has
sufficient amounts of catalyst mixed with it for polymerization to occur, then that process may
meet the definition of POLYM.,However, treatment of the characteristic hazardous waste by
966
-------
polymerization must result in the high-TOC ignitable waste being converted to an inert material
that does not exhibit any characteristic of hazardous waste. Semi-solid materials would not
achieve treatment as intended by polymerization. >
' ^ - - ' . . , ;
If a waste is generated under the definition of POLYM (as defined in today's rule), then the point
of generation is defined as being when an inert mass that does not exhibit any characteristic of
hazardous waste is produced. If a waste monomer is discarded with sufficient catalyst mixed in
at the time of discard, and the mixture produces an inert mass that does not exhibit any
characteristic of hazardous waste, then POLYM has taken place regardless of the amount of time'
it takes for that mass to be produced, within storage and accumulation regulations.
967
-------
DCN PH4P073
COMMENTER Outboard Marine Corp. ,
RESPONDER JL
SUBJECT POLM
SUBJNUM 073 . , ,
COMMENT ' , .
OMC supports EPA's proposed change as described in the preamble to
the proposed rule (60 F.R. 43679). OMC also supports the proposed
changes to 40 CFR 268.42 (60 F.R. 43697) allowing polymerization as
Best Demonstrated Available Technology (BDAT) for high TOC
(Total Organic Carbon) D001 ignitable characteristic
non-waste waters.
When this rule is finalized, OMC plans to use this technology .for
satisfying LDR requirements for waste polyester resin aim gelcoat .
generated in the fiberglass boat manufacturing process. Based on .
OMC data, polymerization of waste resin and gelcoat results in a
, solid waste that does not exhibit any hazardous waste
characteristics. OMC believes that polymerization of
waste polyester resin and gelcoat eliminates the ignitability
characteristic of a hazardous waste via a"common sense" approach.
We ask that the EPA clarify its preamble statements regarding the
90-day storage of this type of waste in tanks (60 F.R. 43679). The
provisions of 40 CFR 262,34 allow large quantity generators to .
store hazardous waste up to 90 days in adequate containers and ' -
tanks. It is not clear why EPA specifically addressed tanks under
40 CFR 264.34 (a)(l)(ii) in the preamble. It is OMCs belief that
me majority of fiberglass boat builders would store these types
of wastes in containers as opposed to tanks. The preamble to the . .
final rule should address this issue. .
RESPONSE: ' c
">. " . ' ' '
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes.
Although the Agency only made mention of the generator accumulation provisions for storage in
tanks in the preamble to die final rule, 40 CFR 262.34(a) provides that a generator may
accumulate hazardous waste on-site for 90 days or less without a permit, or without having
interim status, if the waste is placed either in containers that are in compliance with subparts I,
AA, BB and CC of 40 CFR part 265 and/or in tanks in compliance with subparts J, AA, BB and
CC of 40 CFR part 265 (except for" §§265.197 and 265.200), and/or in drip pads if the generator
complies with subpart W of 40 CFR part 265 as well as additional record keeping requirements.
968
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The Agency's mention in the preamble to the proposed rule of the generator accumulation
provisions related to tanks was provided only as guidance and in no way limits a generator's
responsibility^© comply with all applicable hazardous waste management requirements.
969
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DCN PH4P076
COMMENTER Society of the Plastics Industry
RESPONDER JL , ....
SUBJECT POLM
SUBJNUM 076
COMMENT ,
For over a decade, SPI, which represents all segments of the
plastics industry in the United States; 1 has recognized the merits
of polymerization as an acceptable waste management technique and
, promoted its use. SPI is a participant in EPA's Sustainable
Industry Project for the express purpose of developing a proposal
on polymerization as a LDR methodology for certain plastics
operations. SPI commends EPA for taking the initiative in the
proposed rule to approve polymerization as an acceptable LDR ,
technology. Polymerization is a safe, efficient, and
effective means of diminishing the toxicity and mobility of certain
hazardous wastes and eliminating or minimizing any threat to human
health or the environment.
EPA is proposing to add POLYM to the set of Best Demonstrated
Available Technology ("BOAT") methods for D001 ignitable liquids
high-Total Organic Carbon ("TOC") nonwastewater subcategory.
Without jeopardizing the significant gain that even
limited recognition of this technology represents, SPI asks EPA to
consider some additional points which are detailed hi the remainder
of these comments: " .
:
i \
Clarify that the. rule is not intended to be limited'to reactions
v , which are initiated by chemical catalysts. Other methods of
polymerization, including thermal and light-initiated reactions,
should be allowed within the definition of POLYM.
Clarify that high-TOC D001 monomers and catalysts besides
polyester/styrene monomer and MEK peroxide are covered under this
proposal.
Consistent with EPA's Common Sense Initiative and the Sustainable
Industry Project's "cleaner/cheaper/smarter" approach, consider
expanding the use of polymerization beyond high-TOC D001
nonwastewaters to include managed waste that is listed (and has a
specified treatment technology .that does not include deactivation)
or characteristic, as long as the hazard is eliminated.
Clarify that generators which polymerize waste are not regulated
as treatment, storage and disposal facilities.
Specify that POLYM may be used as a deactivation technology to
accomplish this goal. .
970
-------
I. Clarify Scope of Proposed Rule '.'."'
EPA defines POLYM as the "formation of complex high molecular
weight solids through polymerization of monomers in high TOC D001
nonwastewaters." 60 Fed. Reg, at 43679..EPA explains in this
discussion that POLYM may be used to manage "those high-TOC wastes
which are chemical components in the manufacture of plastics." The . :
preamble discussion on page 43679 provides, as an example of an
appropriate case in which POL YM may be used, the reaction
of polyester/styrene with methyl ethyl ketone ("MEK") peroxide in a
mold to form an inert fiberglass material that no longer exhibit a
hazardous waste characteristic. The waste
polyester/styrene monomer and the MEK peroxide are currently
regulated as high-TOC ignitable wastes. '
SPI understands the preamble language to mean that polymerization
" may be used to render both the reactive monomers and the catalysts
in the reaction nonhazardous. As proposed by EPA, POLYM simply
requires "the addition of a polymerizing component or catalyst to
the discarded high-TOC D001 monomer stream." Therefore, SPI
understands that other high-TOC D001 monomers and catalysts besides
polyester/ styrene monomer and MEK peroxide may be managed through
polymerization.
Further, the preamble language appears to limit POLYM to reactions
initiated by "a polymerizing component or catalyst" The
polymerization process need not be limited to a chemical reaction
involving the addition of a catalyst. SPI is asking EPA to clarify
in the final rule that at "a polymerizing component" includes typical
polymerization methods, including thermally initiated
polymerization. Another example might be ultra-violet (UV)
light-initiated polymerization.
II. Polymerization Should Be Available For Any Reactive Monomer
or Curing Agent Whether Listed or Characteristic Waste ,
SPI supports the use of polymerization technology to manage
monomers, catalysts, and other reactive starting materials that are
considered to be high-TOC D001 nonwastewater. More than this, SPI
is asking EPA to allow POLYM to be used to manage other .
characteristic and/or listed wastes which are chemical components
in the manufacture of plastics, although SPI does not wish to delay
or derail the proposal in any way. - , . , ,
EPA does not provide a basis for limiting POLYM to high-TOC D001
nonwastewater monomers and catalysts. Indeed, there are several
policy reasons for expanding the use of polymerization in the LDR
program to characteristic and hazardous reactive waste
streams. Expanding POLYM is consistent with EPA's endorsement of
971
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"the ongoing practice of polymerizing characteristic wastes to a
non-characteristic inert mass" as a practice which"adequateiy
protects human health and the environment." 60 Fed. Reg. 43679.
Expanding POLYM is consistent with the practice of waste
minimization and pollution prevention. It will also reduce the
incidence of cross-media releases via leakage, air emissions, or
disposal because there is no cross-media contamination associated
.with polymerization. If EPA expands the.circumstances under which
POLYM can be used, more companies will be able to avoid the need to
incinerate and create cross-media releases via air emissions.
In addition, current methods are not as safe, effective, or
economical as polymerization for treating certain types of waste.
Expanding the use of a known technology would substantially
ease the compliance and cost burdens of the LDR program for many
small businesses. Polymerization is the most efficient and
environmentally sound way to render waste nonhazardous in many
cases, in part because it eliminates the need for long term storage
of ignitable and other hazardous materials. Also, manufacturers do
not have to ship the hazardous material off-site,~and this reduces
both the cost and risk of hazardous waste management. Such a
change is consistent with the "cleaner/cheaper/smarter" approach
embodied in EPA's Common Sense Initiative'and the Sustainable
Industry Project.
A way to effect this change, in part, is to revise the definition
of POLYM to eliminate the reference to high-TOC DOO1 .. '.
nonwastewaters, so that POLYM is defined as: "Formation of complex
high-molecular weight solids through a chemical or physical
process of polymerization of reactive components used hi the
manufacture of plastics." In addition, EPA should make POLYM one of
a number of available technologies for managing LDR waste when
"deactivation" is the specified standard. "Deactivation" (or
"DEACT") is defined as "to remove the hazardous characteristics of
a waste due to its ignitability, corrosivity, and/or reactivity."
40 C.F.R. §268.42, Table 1. Polymerization fits this definition
and would then be suitable for use with other D001 ignitable
liquids, D002 (corrosive), D003 (reactive), and other wastes.
California serves as an example of why this change is needed. The
State has tried to amend its rules to permit polymerization of
small amounts of waste resin. However, because of LDR constraints,
this effort was unsuccessful. EPA's recognition of POLYM will
allow California and other states to go forward with their
proposals. This will benefit many companies in the '
plastics industry.
972
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SPI is urging EPA to expand the uses of POL YM beyond high TO.C.
D001 nonwastewaters to at least include all hazardous reactive
starting materials with specified methods of treatment under the
land disposal restriction program. SPI understands that, in the
case of listed wastes with specified concentration levels,
polymerization may be used now to treat the waste to below these
concentration levels. For those characteristic and listed wastes ,
with specified , '
treatment technologies, a change in current regulations is needed.
Furthermore, SPFs experience in this area leads us to.suggest
that the use of polymerization need not be tied to whether the '..'
reactive component is a monomer, curing agent, or other starting
material used in the manufacture of plastics, or why the waste is
'hazardous. For example, 2,4-Toluene diisocyanate ("TDI") is a
listed hazardous waste (LDR waste code U223). Although reacting
polyol and TDI produces a nonhazardous polyurethane, currently EPA
will only allow incineration or fuel substitution as treatment :
methods for U223 nonwastewaters. Another example is a small class
of curing agents used in the polymerization of epoxy resin that may
beflammable. A different set of epoxy curing agents exhibits the
characteristic, of corrosivity, .
but, if polymerized, are rendered nonhazardous. Other thermoset or
thermoplastic materials for which polymerization could be used to
render reactive hazardous waste nonhazardous
.include: polyurethanes,epoxies,phenolics,melamineformaldehyde,
urea formaldehyde, alkyd polyester resins, and acrylic casting
materials. The same principle applies to other thermosets in which
the normal manufacturing process could be one which uses a process1
other than a catalyst, such as thermal or light polymerization to
initiate the reaction.
Once polymerized, these wastes would be typically disposed of in
landfills once polymerized, which is an acceptable environmental
outcome because they would be rendered nonhazardous. The possible
expansion of POLYM to other reactive polymer constituents would not
result in a reduced level of protection for human health and trie .
environment. POLYM would just be one a permissible way to manage
hazardous waste, and facilities would still have generator's
obligation to ensure that the waste is appropriately tested and .
handled prior to land disposal. Generators must ensure that the ,.
wastes they manage do not retain a hazardous characteristic or are
otherwise nonhazardous prior to land disposal, or they are ,
obligated to ensure that the waste continues to be properly managed
for its associated hazard. Take the case of an off-specification
973
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batch of material that does not polymerize well: The generator
would have to manage the off-spec material using a method other
than polymerization. .
California serves as an example of why this change is needed. The
State has tried to amend its rules to permit polymerization of
small amounts of waste resin. However, because of LDR CONSTRAINTS,
this effort was unsuccessful. EPA's recognition of POL YM will
allow California and other states to go forward with their
proposals. This will benefit many companies in the
plastics industry.
III. Generators That Polymerize Waste Are Not Regulated As
Treatment, Storage and Disposal Facilities ,'.'-
SPI supports EPA's efforts to streamline LDR requirements for
generators who manage their own waste, such as by proposing to
require only a one-time notification and certification to the
receiving facility, eliminating the requirement to submit waste
analysis plants to States and Regions, and reduce record retention >
periods from five to three years. 60 Fed. Reg. at 43677. It-would .
be of further help for the final rule to remind manufacturers of,
their inherent obligations, and to inform them that the use of .
POLYM dbes not trigger the need for treatment, storage and Disposal
facility ("TSDF") permitting. Although permitting is not required
if a generator chooses to manage waste in tanks, containers or
containment buildings to meet the applicable LDR standards, other
RCRA generator and LDR obligations apply. 51 Fed. Reg. 10168
(March 24,1986). SPI believes that facilities will be able to
perform the required polymerization well within .the accumulated
storage tune limits. The involved facilities are familiar with
safe handling techniques and the associated particulars of
polymerization technology. , .'
SPI believes that facilities will be able to perform the required .
polymerization well within the accumulated storage tune limits. The
involved facilities are familiar with safe handling techniques and
the associated particulars of polymerization technology.
IV. CONCLUSIONS . :
Since 1984, the land disposal of hazardous waste has been
prohibited unless the waste meets treatment standards set by EPA.
RCRA requires that the treatment standards "substantially diminish
the toxicity or mobility of hazardous waste such that short- and
long-term threats to human health and the environment are .
minimized." 60 Fed. Reg. at 43655. '
Polymerization is recognized as a way of handling material so that
it no longer presents the hazard that prompted the characterization
974
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of hazardous. The use of POL YM has benefits that extend far beyond
one process. EPA is proposing that polymerization be limited to
certain polymerized monomers and catalysts which are hazardous due
to ignitability. As discussed in these comments, SPI is requesting
certain clarification and believes that a broader application
of polymerization is consistent with safe, effective, and ', ." l
economical waste management under RCRA, the Common Sense Initiative
and the Sustainable Industry Project The toxiciry and mobility ,
of hazardous waste are rendered nonexistent by the technology,
regardless of whether the need to treat the waste is based on a
hazardous waste listing or because the waste exhibits a . .
hazardous characteristic^ EPA should consider SPI's comments on
additional sectors in which this technology may be effectively .
used, and incorporate these recommendations to the extent that *' -,
it can do so without disrupting the finalization of the proposal , .
for high-TOC ignitable wastes. r
' ' ',-'
<*. - ' '
RESPONSE: , - " .
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the. s
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes.
^ ' '' ' ' '
The commenter is correct in stating that polymerization may be used to render both the reactive
monomers and the catalysts in the reaction non-hazardous. In addition, other high-TOC (D001)
monomers and catalysts, besides pblyester/styrene monomer and MEK peroxide, that are
hazardous because they exhibit the high-TOC/DOO 1 characteristic, may be managed through
polymerization. However, treatment of the characteristic hazardous waste by polymerization
must result in the high-TOC ignitable waste being converted to an inert material that does not
exhibit any characteristic of hazardous waste. As the commenter points out, if polymerization
does not result in an inert mass, the treatment standard is not achieved, and the waste must be ,
managed using a different form of treatment (i.e., CMBST or RORGS).
At this time, the Agency is limiting the definition of POLYM to include only those reactions
initiated by a polymerizing component or catalyst. .EPA has no data on other polymerization
methods such as thermal or ultra-violet light initiated polymerization. .The data you have v
submitted and any further data you or others submit will be evaluated^and the Agency will revisit
this issue in the future. .
The Agency notes that the addition of polymerization to the set of required methods of treatment
designated as BDAT applies to high-TOC ignitable (D001) non-wastewaters only. The Agency
is not designating polymerization as BDAT for any listed hazardous wastes. The Agency does
not have sufficient data at this time to make a determination of the applicability of
975
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polymerization as BOAT for listed hazardous wastes.
In addition, the Agency is not adding polymerization to the list of designated BDAT for any
characteristic hazardous wastes other than high-TOC D001. The Agency does not have the data
to make a determination of the applicability of this treatment technology to other characteristic
hazardous wastes at this time. Such a determination is beyond the scope of today's rulemaking.
The Agency appreciates the commenter's suggestions for clarifying the availability of
polymerization for high-TOC ighitable wastes which are chemical compounds in the
manufacture of plastics. The Agency has included this clarification in the preamble to the filial
rule. .
The Agency notes that 40 CFR 262.34(a) provides that a generator that manages high-TOC
ignitable D001 wastes on-site, may manage the wastes through polymerization while
accumulating the wastes on-site without obtaining a permit, or without having interim status,
provided the wastes are not stored for more than 90 days .and provided the wastes are placed
either in containers that are in compliance with subparts.I, AA, BB and CC of 40 CFR part 265
and/or in tanks in compliance with subparts J, AA, BB and CC of 40 CFR part 265 (except for
§§265.197 and 265.200), and/or in drip pads if the generator complies with subpart W of 40 CFR
part 265 as well as additional record keeping requirements.
976
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DCN PH4P089 ;. , , , " \
COMMENTER ASTSWMO .. ,
RESPONDER JL: . ' -
SUBJECT POLM ' : , (
SUBJNUM 089 ,,
COMMENT . " -.'-....".'
, 10. The Task Force has no objection to the proposed .
Polymerization (POLYM) method'of treatment for DOO1 High-TOC , ,
ignitable wastes. ,
V ' '' . . '
,, ' ' ' . '
RESPONSE: ,' . , . ',"' ,. .
\ . ' . '.'''
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (DOO 1) wastes resulting from commercial polymerization processes.
977
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DCN PH4P092 ' , " ; , r
COMMENTER Union Carbide Corp.
RESPONDER' JL
SUBJECT POLM ,
SUBJNUM 092
COMMENT ,-_.-.'
III.B. Union Carbide supports addition of the proposed POL YM
standard for treatment of high TOC ignitable nonwastewaters. . ^
The proposed definition of POL YM appropriately includes '
applications beyond styrene monomer. For example, the proposed
POL YM option will facilitate the most safe and effective , ' '
management of the following emergency response scenario:
Union Carbide manufactures a product using a highly reactive
monomer. The reaction system is designed so that the contents can ,
be purged in case of process upset. The unreacted mixture, which
would exhibit the characteristic of ignitability, would be sent
. to a section of piping (a totally enclosed treatment unit) into
which caustic soda is introduced. The caustic would cause the
polymerization of the monomer and remove the characteristic of
ignitability. The polymer in mis case would be a fine suspension ,
of particles in an aqueous stream. The most practical means to
continue treatment would be to sewer the polymerized stream for
further biological treatment in the location's
surface impoundments. ' *
RESPONSE:
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high- -
TOC ignitable (D001) wastes resulting from commercial polymerization processes.
The Agency notes that the commenter is incorrect in assuming that polymerization is appropriate
treatment for a high-TOC ignitable waste where the treatment results hi a fine suspension of
particles in an aqueous stream. Treatment by polymerization must result in an inert mass, and
not result in suspended particles in an aqueous stream that must be further treated by biological
treatment. ..*-.-
978
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*
DCN PH4P097
COMMENTER Hazardous Waste Management
RESPONDER JL
SUBJECT POLM
SUBJNUM 097 :
COMMENT . '
Polymerization Method of Treatment for High-TOC Ignitable D001
Wastes (60 CFR 43679)
The Agency proposes to add polymerization to the set of required
methods of treatment for high-TOC ignitable (D001) wastes resulting
from commercial polymerization processes. Polymerization is , . ,
proposed as an alternative to CMBST or RORGS for only those
high-TOC D001 wastes which are chemical components in the
manufacture of plastics (60 F.R. 43679).Typically, waste .
polyester/styrene monomers and MEK peroxide are commonly disposed
by reacting small quantities together to create fiberglass scraps
that are no longer characteristics. Polymerization would allow the
practice of polymerizing high-TOC igriitable (D001 Characteristic
wastes to a non-characteristic inert mass which the Agency believes ,. '
adequately protects human health and the environment. .'.,.
. . HWM generally supports the promulgation of polymerization as a
specified technology for high-TOC ignitable wastes from the .
plastics manufacturing industry; however, the description
of polymerization proposed in §268.42 Table 1 should be modified.
The description should be amended to reflect that this specified
technology is only available for those high-TOC D001 wastes which ,
.. are chemical components in the manufacture of plastics. A list '
which reflects some of the acceptable constituents would be helpful
and should be included. In addition to the list, the -. ,
suggested change is as follows: .
"POLYM" - Formulation of complex high-molecular weight solids
through polymerization of monomers in high-TOC D001 nonwastewaters
which are chemical components in the manufacture of plastics.
RESPONSE: ;
' _ . ,.' , \ '_'.
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BDAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes.
979
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The Agency appreciates the commenter's suggestions for clarifying the availability of
polymerization for high-TOC D001 wastes which are chemical components in the manufacture.
of plastics. The Agency has included this clarification in the preamble to the final rule.
, . i '
At this time the Agency is not publishing a list of acceptable constituents. EPA believes that the
definition of POLYM is explicit enough for generators to make a determination as to whether
POLYM is applicable to their wastes. Anyone who has a question is always free to contact State
or EPA officials at any time. ' .
980
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DCN PH4P103 .
COMMENTER Ciba-Geigy Corp.
RESPONDER' JL .'.. . '
.SUBJECT POLM :
.SUBJNUM 103 -. , ' '. ,
COMMENT . .- ' ; . ' -
-------
polyester/styrene monomer and MEK peroxide, that are hazardous because they exhibit the high-
TOC/D001 characteristic, may be managed through polymerization. However, treatment of the
characteristic hazardous waste by polymerization must result in the high-TOC ignitable waste
being converted to an inert material that does not exhibit any characteristic of hazardous waste.
At this time, the Agency is limiting the definition of POLYM to include only those reactions
initiated by a polymerizing componentor catalyst. EPA has no data on other polymerization.
methods such as thermal or ultra-violet light initiated polymerization. The data you have
submitted and any further data you or others submit will be evaluated and the Agency will revisit
this issue in the future.
- , ' /
The Agency notes that, in the case of laboratory wastes, better treatment options are available to
the generator. Combustion may be a better alternative for these wastes than polymerization.
There are few limitations to the types of constituents that may be present in lab packs destined
for incineration (i.e., no mercury or arsenic). Burning achieves complete destruction of the
organic components of the wastes. However, EPA does not have data to support a finding that
polymerization will result in the construction or adequate chemical reactions of the hazardous
constituents in lab packs, particularly since the composition of these wastes can vary greatly.
The Agency notes that the addition of polymerization to the set of required methods of treatment
designated as BOAT applies to characteristic (high-TOC D001) non-wastewaters only. The
Agency is not designating polymerization as BOAT for any listed hazardous wastes or for any
other characteristic wastes at this time. The Agency does not have sufficient data at this time to
make a determination of the applicability of polymerization as BOAT for listed hazardous .wastes
or other characteristic wastes.
982
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DCN PH4P103 -j
COMMENTER Ciba-Geigy Corp.
RESPOHDER JL.
SUBJECT .POLM : '
SUBJNUM, "103
COMMENT .
Easing Implementation Without Compromising Environmental -
Protection. ,
In the proposed rule, EPA states ignitable materials can be stored
for up to 90 days in RCRA generator tanks: A more useful
' implementation discussion for generators of these wastes would have
. been to propose an accommodation to resin manufacturers and users
so that waste hardening operations could be integrated into their
' day-to-day operations. Ciba believes this regulation would be
greatly improved by allowing generators to polymerize their own
wastes. Since polymerization is a standard operation for these
manufacturers this treatment should not require that process ,'
, vessels meet RCRA tank regulations provided the state
, r environmental agency agrees with the generator that the equipment'
used for polymerization is suitable.
, In summary, the POLYM alternative is too narrowly drafted. It does
not appear to be applicable to many thermoserting resin
waste streams where POLYM is an appropriate land disposal
restriction technology. Ciba recommends that preamble language in
the final rule show that the POLYM treatment technology alternative
has broader applicability, including the treatment of laboratory
wastes amenable to polymerization.
In order to reduce the cost and difficulty of utilizing this land
disposal restriction alternative, the EPA should specify that POLYM
' '. need not be performed in RCRA tanks (including the requirements of
- Subpart AA, Subpart BB, and Subpart CC) as long as the storage and
treatment operations are protective of human health and the
environment and deemed suitable by the state RCRA authority.
As a side note, Ciba recommends that the parenthetical included in
the D001 high-TOC IGNITABLE Subcategory in the 268.40 Table
Treatment Standards for Hazardous Waste be clarified." (Note: this
subcategory consists of nonwastewaters only)." This parenthetical
is confusing in that the land disposal restriction definition for
waste waters is typically limited to aqueous waste which contains
less than 1%TOC and less than 1% TSS. By definition, all high-TOC
ignitable wastes do not meet this definition of wastewater. If a
different definition of wastewater is intended, it has not been
elucidated by EPA and should be re-proposed so that stakeholders
983
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can understand the scope of this limitation. '
RESPONSE:
\ - ' " ' *
The Agency disagrees with the commenter's assertion that generators should be allowed to treat
high-TOC / D001 wastes on-site in unregulated storage units. The Agency believes that the
required generator accumulation and storage provisions are necessary to ensure adequate
protection of human health and the environment. Generators who manage high-TOC D001
wastes on-site may manage the wastes while accumulating the wastes in tanks or containers,
without obtaining a permit or interim status, provided the wastes are not stored for longer than 90
days and provided the generator is in compliance with all applicable RCRA management
requirements, including the accumulation and storage provisions of 40 CFR 262.34. 40 CFR
262.34(a) provides.that a generator may accumulate hazardous waste on-site for 90 days or less
without a permit, or without having interim status, if the waste is placed either in containers that
are in compliance with subparts I, AA, BB and CC of 40 CFR part 265 and/or in tanks in
compliance with subparts J, AA, BB and CC of 40 CFR part 265 (except for §§265.197 and
265.200).
Polymerization may be used to render both the reactive monomers and the catalysts in the
reaction non-hazardous. In addition, other high-TOC (D001) monomers and catalysts, besides
polyester/styrene monomer and MEK peroxide, that are hazardous because they exhibit the high-
TOC/D001 characteristic, may be managed through polymerization. However, treatment of the ,
characteristic hazardous waste by polymerization must result in the high-TOC ignitable waste
being converted to an inert material that does not exhibit any characteristic of hazardous waste.
At this time, the Agency is limiting the definition of POL YM to include only those reactions
initiated by a polymerizing component or. catalyst. EPA has no data on other polymerization
methods such as thermal or ultra-violet light initiated polymerization. The data you have
submitted and any further data you or others submit will be evaluated and the Agency will revisit
this issue in the future. , : i '_."..'
The Agency notes that, in the case of laboratory wastes, better treatment options are available to
the generator. Combustion may be a better alternative for these wastes than polymerization.
There are few limitations to the types of constituents that may be present in lab packs destined
for incineration (i.e., no mercury or arsenic). Burning achieves complete destruction of the
organic components of the wastes. However, EPA does not have data to support a finding that
polymerization will result in the construction or adequate chemical reactions of the hazardous
constituents in lab packs, particularly since the composition of these wastes can vary greatly.
The Agency also notes that the addition of polymerization to the methods of treatment designated
as BDAT applies to characteristic (high-TOC D001) non-wastewaters only. The Agency is not
designating polymerization as BDAT for any listed hazardous wastes or for any other
characteristic wastes at this .time. The Agency does not have sufficient data at this time to make
984
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a determination of the applicability of polymerization as BOAT for listed hazardous wastes or
other characteristic wastes. '
985
-------
DCN PH4P108
COMMENTER Tiara . '
RESPONDER JL ,
SUBJECT POLM '<,.-' .
SUBJNUM 108 .
COMMENT '
SO Yachts, Inc. supports the proposal to add polymerization as an
approved treatment technology for polyester resin. Polymerization
creates a non-hazardous waste, thereby protecting human health and
the environment .
" v - , ' ( »
RESPONSE: ,
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best Demonstrated Available Technology (BOAT) for high-
TOC ignitable (D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the availability of this treatment method for high:TOC ignitable
wastes will reduce the risks associated with these wastes and adequately protect human health
and the environment .
986
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DCN PH4PI13 . , . , '
COMMENTER Chemical Manufacturers Assn
RESPONDER JV
SUBJECT POLM
SUBJNUM 113 . ',.-'
COMMENT ; . .
')',.
VII. Additional Comments . x
A. CMA supports the Agency proposal to establish POLYM as an LDR
, treatment method but believes the preamble discussion unnecessarily
constrains the option. .
CMA believes that POLYM provides the regulated community, with a
cost effective, environmentally sound method of management for
high-TOC ignitable (D001) wastes resulting from commercial
polymerization processes. However, CMA seeks Agency clarification
, on language contained within the discussion that appears to
unnecessarily constrain the use of POLYM
The Agency discussion (60 Fed. Reg. 43,679, August 22,1995) x
states: ' .
"POL YM requires the addition of a polymerizing component or
catalyst to the discarded high-TOC D001 monomer stream intended for
land disposal.". . .
CMA requests that the Agency also acknowledge that it is possible ,
to generate monomer D001 wastes which continue to undergo
polymerization without the need for additional catalyst (in
instances where catalyst is present hi lower concentration than
needed for commercial production, such as a bad reaction batch).
Thus, the addition of a polymerizing component or catalyst to the
. discarded material should not be a required condition where the
material is deemed capable of polymerizing fully without additional
catalysts.
1. CMA suggests that the Agency define the point of generation for
wastes which polymerize on a rapid time frame. ''
"CMA requests that the Agency determine that materials that are
undergoing rapid polymerization (i.e., within a few moments of
; removal from the process), without catalyst addition should be
evaluated as to their physical state (i.e., liquid or solid using
the paint filter test) once the material has reached standard
temperature and pressure. Thus, a waste which is solid within -
minutes of being removed from a process should be vie wed as a '
generated solid for purposes of waste classification. .
987
-------
2. CMA suggests that the Agency allow POLYM for off-specification
U-listed catalyst monomers which are characteristically hazardous. -
In a parallel request and employing the same logic as the Agency '
has advanced, CMA requests that the Agency consider that
off-specification monomer which would otherwise be a U-listed waste
and which is listed due to a characteristic other than toxicity be
eligible to employ .
this treatment method as well. CMA also sees no reason why
off-specification characteristic initiator cannot Have monomer
added and accomplish the same goal. .CMA asks that the Agency apply
POLYM to these wastes, as well, ,
3. CMA suggests that the Agency not subject the storage of
polymerizing wastes in 9G-uay areas to waste analysis plan
provisions.
CMA requests that when D001 materials are left to polymerize (with
or without the addition of catalysts), and such polymerization
takes place in a 90 day tank or container, that mis
activity be exempt from the requirement to prepare and submit a
waste analysis plan to EPA Regional Administrator. (Since
verification of completion of polymerization would likely involve a
combination of visual, physical and procedural steps, and the
number of prohibited streams treated is very limited'at most
facilities, i.e., a lack of variability in waste streams
eliminates much of the need for detailed waste analysis plans, the
current generator requirements to characterize the treated residues
under RCRA would provide adequate protection as well as the fact ;
that in some cases the catalyst or additional polymerizing
materials would be added directly to the manufacturing unit, i.e.,
the batch is determined to be off-spec and catalyst . .
and/or polymerizing materials are added directly to the process.
4. CMA suggests that the Agency allow wastes which are treated
using POLYM be eligible for use as sealing agents under the debris
standards. . .
CMA requests that the Agency consider allowing the use of the
polymerized wastes in satisfying the Sealing technology option
specified under the debris land disposal restrictions. If a , .
facility is going to allow a batch of waste to polymerize, that
polymer should be allowed to additionally serve the function
specified in the debris rule of a polymeric agent, which will
save raw material and energy otherwise required to create
first-quality polymers to serve that purpose.
988
-------
RESPONSE: . ,,,
Polymerization may be used to render both the reactive monomers and the catalysts in the
reaction non-hazardous. In addition, other high-TOC (D001) monomers and catalysts, besides ;
polyester/styrene monomer and MEK peroxide, that are hazardous because they exhibit the high-
TOG/D001 characteristic, may. be managed through polymerization. If a waste monomer has
sufficient amounts of catalyst mixed with it for polymerization to occur, then that process may
meet the definition of POLYM. However, treatment of the characteristic hazardous waste by
polymerization must result in the high-TOC ignitable waste being convened to an.inert material
that does not exhibit any characteristic of hazardous waste. Semi-solid materials would not
achieve treatment as intended by polymerization.
* ' J
The Agency notes that the addition of polymerization to the set of required methods of treatment
designated as BDAT applies to characteristic (high-TOC D001) non-wastewaters only, The
Agency is not designating polymerization as BDAT for any listed hazardous wastes or for any
(other characteristic wastes at this time. The Agency does not have sufficient data at this time to
make a determination of the applicability of polymerization as BDAT for listed hazardous wastes
or other characteristic wastes. ' . <
If a waste is generated under the definition of POLYM (as defined in today's rule), then the point
of generation is defined as being when an inert mass that does not exhibit any characteristic of
hazardous waste is produced. If a waste monomer is discarded with sufficient catalyst mixed in
at the time of discard, and the mixture produces an inert mass that does not exhibit any
characteristic of hazardous waste, then POLYM has taken place regardless of the amount of time
it takes for that mass to be produced, within storage and accumulation regulations.
Generators who manage high-TOC D001 wastes on-site may manage the wastes while
accumulating the wastes in tanks or containers, without obtaining a permit or interim status,
provided the wastes are not store for longer than 90 days and provided the generator is in
compliance with all applicable RCRA management requirements, including the accumulation ,
and storage.provisions of 40 CFR 262.34. 40 CFR 262.34(a) provides that a generator may
accumulate hazardous waste on-site for 90 days or less without a permit, or without having
interim status, if the waste is placed either in containers that are in compliance with subparts I,
AA, BB and CC of 40 CFR part 265 and/or in tanks in compliance with subparts J, AA, BB and
CC of 40 CFR part 265 (except for §§265.197 and 265.200).
/ i ' - v .
In addition, 40 CFR 262.34(a)(4) does require generators who treat hazardous wastes on-site in
tanks, containers, and/or containment buildings to comply with the waste analysis plan
provisions of 40 CFR 268.7(a)(4). The Agency does not believe that this provision is overly
burdensome. Generators must develop a waste analysis plan, keep a copy of the plan on-site, and
must make one-time submission of the plan to EPA or an authorized state. The Agency does not
believe that the development of a waste analysis plan for a generator treating high-TOC ignitable
D001 wastes on-site in tanks or containers is a complicated or overly burdensome process. In
989
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addition, the Agency believes that such a requirement does provide a necessary level of
accountability on the part of hazardous waste generators. Therefore, the Agency is retaining this
requirement with today's final rule. ,
The commenter's request that the Agency allow wastes that are treated using polymerization to
be render.to be in compliance with the sealing technology option specified under the debris land
disposal restrictions requirements is beyond the scope of this rulemaking. At present, the Agency
had no data to support the commenter's request. The Agency appreciates the commenter's
request, and may revisit the issue at a future time when comments can be requested and fully
considered on this topic. .
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DCN PH4P117 , '.'.'
COMMENTER Boston Whaler .
RESPONDER JL
SUBJECT POLYM
SUBJNUM 117 ^ . ' ,
COMMENT ;
' the polymerization of resin can be an environmentally sound, safe,
and efficient solution for the many boat builders across the (
. country. First, the polymerization of resin caii be controlled and .
.accomplished hi a safe manner. Moreover, the polymerization of
resin will lessen the potential dangers and liabilities associated .
with waste transportation and disposal. . .
' . ' ' \ ,
RESPONSE:
The Agency thanks the commenter for supporting EPA's proposal to add polymerization to the
methods of treatment designated as Best .Demonstrated Available Technology (BDAT) for high-
TOC ignitable,(D001) wastes resulting from commercial polymerization processes. The Agency
agrees with the commenter that the availability of this treatment method for high-TOC ignitable ,
wastes will reduce the risks .associated with these wastes and adequately protect human health
and the environment. , ,
991
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992
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DCN . -PH4A004 . . ; - .
COMMENTER Heritage Environmental Services
RESPONDER RE . ., ' ,-'
SUBJECT SCRP
SUBJNUM 004
COMMENT Scrap Metal Heritage agrees with EPA's conclusion that scrap
metal is a valuable national resource, the recycling of which
should be encouraged. In addition, scrap metal has little
potential for release of hazardous constituents to the . .
environment. Therefore, Heritage supports EPA's proposal to
exempt processed scrap metal that is recycled from the
definition of solid waste. Heritage further encouragesEPA to
include unprocessed scrap metal that is recycled in the
exemption from the definition of solid waste. While Heritage
does not have hard data demonstrating unprocessed scrap metal is
. a similarly minimal environmental risk, it is intuitive that if .
,, it is destined for recycling it: a) has undergone some minimal
processing, such as collection for shipment, dismantling of
equipment, or sizing prior to shipping to a scrap dealer, . ,
smelter, mill or foundry; b) has economic value as it will
eventually be processed and sold in a manner similar to
processed scrap metal; c) is just as analogous to raw metal
concentrates as process scrap metal; and d) has the same end
market (i.e., scrap metal reclamation) as processed scrap metal,
otherwise it would not be destined for recycling. If EPA
determines it will not exempt all scrap metal destined for
, recycling from the definition of solid waste, Heritage supports
maintaining the existing exclusion from the definition of . . -
hazardous waste for recycled scrap metal other than processed .
scrap metal. Heritage would like to point out that some scrap
metal is marketed directly to the foundry, mill or smelter
without the uivolvement of a scrap metal dealer trading-on the
recycling market As currently written, EPA's rule appears to -'.
exclude scrap metal that is not handled by scrap metal dealers.
. The exemption should apply to all scrap metal destined for
recycling, whether it has passed through the hands of a scrap
metal dealer or not In fact, it seems a more environmentally
sound method of management to ship scrap metal directly from the
generator to the mill, foundry or smelter. This eliminates the
< additional shipping and storage at a scrap processor's site that
could potentially result in a negative environmental impact In
addition to the preceding comments, Heritage requests that EPA
furtherclarify the-definition of "processed scrap metal". For
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example, would a decommissioned steel tank cut to meet the size
specification of a scrap metal dealer or foundry be considered .
processed scrap metal, even though the tank was cut on-site and
the process was not performed by a scrap metal recycler? As
another example, would piping, pumps or other processing .
equipment dismantled for shipment to a scrap dealer or foundry
be considered processed scrap metal, even though the work was
performed by a demolition contractor and not a scrap metal -
recycler?
RESPONSE: . ; ,:
i - . ,
The Agency thanks the cornmenter for supporting the proposed exclusion for
processed scrap metal. The cornmenter raised a number of additional issues and concerns. First,
the cornmenter suggests that EPA expand its exclusion to cover all scrap metal being recycled.
The cornmenter asserts that the five factors that EPA used to evaluate whether processed scrap
metal is "commodity-like"as used in 40 CFR §260.31 apply equally to unprocessed scrap metal
being recycled. In response to information provided by similar commenters, EPA identified and
'analyzed three different types of unprocessed scrap metal to determine whether the scope of the
exclusion should be expanded: home scrap metal,, prompt scrap metal and obsolete scrap metal.,
Home scrap is scrap metal generated by steel mill, foundries, and refineries such as turnings,
cuttings, punchings, and borings. Prompt scrap, also known as industrial or new scrap metal, is
generated by the metal working/fabrication industries and includes such scrap metal as turnings,
cuttings, punchings, and borings. Obsolete scrap metal is composed of worn put metal or a metal
product that has outlived it original use, such as automobile hulks, railroad cars, aluminum ,
beverage cans, steel beams from torn down buildings, and household appliances. '
The Agency used five factorsito evaluate partially-reclaimed solid wastes to
determine if it is appropriate to exclude a waste from RCRA Subtitle C jurisdiction (40 CFR
§260.31 (c)). the five factors are: 1) the degree of processing the material has undergone and the
degree of further processing that is required, 2) the value of the material after it has been
reclaimed, 3) the degree to which the reclaimed material is like an analogous raw material, 4) the "
extent to which an end market for the reclaimed material is guaranteed, and 5) the extent to
which a material is managed to minimize loss. The Agency applied these five factors to the three
categories of unprocessed scrap metal to determine if these categories are "commodity-like" (as
used in 40 CFR §260.3 l(c)) and not part of the waste management problem.
The Agency evaluated unprocessed home scrap and prompt scrap against each of
the five factors and found that these'categories of scrap metal are substantially similar to
processed scrap metal due to the availability of established markets for the material's utilization,
inherent positive economic value of the material, the physical form of the material, and absence
of damage incidents attributable to the material. However, the Agency has not found sufficient
data to justify an exclusion for unprocessed obsolete scrap metal at this time.
V Based on its analysis, the Agency has determined that the scope of the exclusion
should be expanded to include unprocessed home and prompt scrap metal. The Agency is not
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expanding the scope of the exclusion from the definition of solid waste to, include obsolete scrap
metal. Providing an exclusion from the definition of solid waste for obsolete scrap metal at this
time would be premature and is better addressed in the Definition of Solid Waste rulemaking,
due to be proposed in the near future..
The commenter also pointed out that the rule, as written, appears to exclude
materials from the definition of processed scrap metal if the processing does not occur at a scrap
metal dealer. The language in the proposal was not intended to limit the exclusion in this way.
In the final ride the Agency clarifies that the exclusion for processed scrap metal being recycled.
applies to scrap metal that has under gone a processing step (as defined in the preamble to the
proposed rule) regardless of who does the processing. In other words, a processing step may be
performed by the generator,, an intermediate scrap handler (e.g., broker, scrap processor),'or a
scrap recycler. Once the scrap metal has undergone a processing step, it may qualify for the
exclusion from the definition of solid waste. ...
The commenter also asks for further clarification of the term "processed scrap
metal" and gives examples of generators who perform some work on scrap metal before sending
it off-site.' In response to this commenter and other commenters who requested more specifically
defined processes in the definition of "processed scrap metal," the Agency is adding certain
processes to the definition. Specifically, the Agency is adding chopping crushing, flattening,
cutting and sorting to the types of processes that qualify as "processed scrap metal." Therefore,
in the first example, a tank that is cut at a generator site prior to shipment to a scrap metal dealer
or foundry would meet the definition of "processed scrap metal" after the first processing step at
the generator site. Additionally, in the second example, equipment that is dismantled and
shipped to a scrap dealer or foundry also would qualify as processed scrap metal, as dismantling
(Lei, manual separation) of the equipment serves to improve the handling of the material!
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DCN . PH4A004
COMMENTER Heritage Environmental Services
RESPONDER RE
SUBJECT SCRP
SUBJNUM 004 > ; (
COMMENT Heritage also supports EPA's proposal to exempt shredded circuit
boards destined for metal recovery from the definition of solid >
waste. However, Heritage does not understand why EPA does not
extend this exemption to whole circuit boards and make this
explicit through a rulemaking. It appears that EPA is being
unnecessarily obtuse by allowing the exemption of whole circuit
boards from the definition of hazardous waste as "scrap metal"
through internal memoranda and minimal preamble discussion in a s
-proposed rule. Very few members of the regulated community have .
access to, or the time for reading, unpublished internal
memoranda or preambles to proposed rules. If EPA wishes to
facilitate recovery of circuit boards and does not feel it
inappropriate to manage whole circuit boards differently than ' *
shredded circuit boards, Heritage suggests that the EPA simply. ,
publish an exemption firam the definition of solid waste for . ';
whole and shredded circuit boards with appropriate management
requirements, such as storage and shipment in containers.
RESPONSE: .
' f% " v
EPA thanks the commenter for supporting the shredded circuit board exclusion
from the definition of solid waste. The commenter also requests that the exclusion be extended
to whole circuit boards.
Since 1992, used whole boards are classified as scrap metal and therefore when,
recycled whole circuit boards are completely exempt from RCRA regulatory requirements.
Therefore, no RCRA regulatory requirements such as manifesting, export or storage permit
requirements currently operate as disincentives to environmentally sound recycling of these
materials. Used whole circuit boards clearly meet the definition of scrap metal.. It is not
practical for the Agency to list individually all items that meet the definition of scrap metal. The
exclusion from RCRA jurisdiction for used shredded circuit boards is necessary only because
they do not qualify for the definition of scrap metal and thus may be subject to RCRA regulatory
requirements that may serve as disincentives to then* recovery. EPA also believes that because
whole used circuit boards are classified as scrap metal, excluding whole used boards from the
definition of solid waste is not necessary to ensure environmentally sound recovery of these
materials and would be confusing to the Agency's current definition of scrap metal.
996
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DCN PH4A006
COMMENTER Department of Energy
RESPONDER RE ' ,
SUBJECT .SCRP
SUBJNUM 006
COMMENT EPA is proposing to amend the definition of solid waste by /
'. excluding processed scrap metal being recycled from RCRA
jurisdiction. .The Agency is also proposing to exclude shredded
circuit boards destined for metal recovery that are managed
in containers during storage and shipment prior to recovery from
the definition of solid waste to facilitate recovery of .
this material. DOE generally supports these proposed regulatory
changes in that they will facilitate and expedite the recycling .
; of two types of materials which are managed at certain DOE <
facilities. Moreover, by minimizing the regulatory and '
reporting burdens associated with these recoverable materials,
the proposed regulatory changes provide economic impetus that ,
should benefit the regulated community and the recycling
industry.
RESPONSE: .
The Agency thanks the commenter for supporting the proposed exclusions from
the definition of solid waste for scrap metal and shredded circuit boards being recycled.
997
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DCN . PH4AOQ6
COMMENTER Department of Energy
RESPONDER RE ,
SUBJECT SCRP
SUBJNimr 006
COMMENT Other RCRA Issues: Exclusion of Processed
. Scrap Metal and Shredded Circuit Boards from the Definition of
Solid Waste LA. Processed Scrap Metal Being Recycled IA.2.
Background 1. D. 2361, col. 3 - EPA describes the proposed
. exclusion of processed scrap metal being recycled by referring
to its "commodity-like" nature and to the Agency's belief that
"processed scrap metal being recycled should be excluded from
the definition of solid waste because this type of material has
not been shown to be part of the waste disposal problem." EPA
also describes the existing regulatory exemption from regulation
under RCRA Subtitle C of all scrap metal being recycled as "an
, interim measure to allow the Agency to study scrap metal
management" As explained in the preamble, EPA has heretofore
exempted all scrap metal being recycled from regulation under
. RCRA Subtitle C, but not from the 'definition of solid waste in
40 CFR 261.2. The definition of hazardous waste pursuant to 40
CFR 261.3 is specifically limited to those wastes defined under
40 CFR 261.2 as solid wastes. Thus the definition of hazardous
waste would not include processed scrap metal being reclaimed
under the proposed exclusion. Under the mixture rule
[°°261.3(a)(2)(iii) and (iv)], mixtures of solid wastes with
listed hazardous wastes, and mixtures of solid wastes and
hazardous wastes that exhibit hazardous waste characteristics,
are regulated as hazardous. Considering the above-mentioned
regulatory provisions and the proposal to amend the definition
of solid waste by excluding processed scrap metal being recycled
from RCRA jurisdiction, clarification is requested as to the
regulator status and exact applicability of the RCRA
regulations to the potential situation where scrap metal (i.e.,
processed scrap metal being reclaimed) is contaminated with a
hazardous waste residue.
RESPONSE:
The commenter requests clarification on the applicability of the RCRA
regulations to scrap metal which is contaminated with hazardous waste residues. The commenter
is correct in concluding that the mixture rule (40 CFR 261.3(a)(2)(iii) and (iv)) does not apply to
excluded scrap metal. The mixture rule applies to hazardous waste that is mixed with solid
998
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, waste. Under today's final rule, excluded scrap metal being recycled is not a solid waste,
therefore the mixture rule does not apply. Today's exclusion is not intended to modify the .
existing definition of scrap metal. Therefore, the determination as to whether a waste meets the
definition of scrap metal has not changed and is made at the .point of generation. Under the
definition of scrap metal, a secondary material from smelting and refining operations (e.g., slags,
drosses, and sludges), liquid wastes containing metals (e.g., spent acids and caustics), liquid
metal wastes (e.g., liquid mercury), and metal-containing wastes with a significant liquid
component (e.g., spent lead acid batteries) do not meet the definition of scrap metal and therefore
also are hot classified as processed scrap metal. If, at the point of generation, a secondary
material has enough hazardous waste residue to constitute a "significant liquid component," the
material would not qualify as a scrap metal. For example, if a tank is being decommissioned,
and it has some hazardous residue on the bottom, the tank may not qualify as scrap metal if the
implementing agency determines that the residues constitute a significant liquid component. In
order to meet the definition of processed scrap metal, the material must first meet the definition
of scrap metal. Therefore, any distinct components that are separated from a scrap metal that
would not otherwise meet the current definition of scrap metal would not meet the definition of
processed scrap metal. The separated material would be a newly generated waste and therefore
subject to a hazardous waste determination. If this newly generated waste is a hazardous waste,
then the waste must be handled as hazardous waste.
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DCN PH4A006
COMMENTER Department of Energy
RESPONDER RE
SUBJECT SCRP .
SUBJNUM 006 ' ,,' .
COMMENT Definition of Processed Scrap Metal 1. D. 2361,
col. 3 - p. 2362, col. I - EPA describes the scope of the
proposed scrap metal exclusion (i.e., it is "restricted to scrap
metal which has been processed by scrap metal recyclers to be
traded on recycling markets for further reprocessing into metal
end products"), offers a definition of "processed" scrap metal,
and introduces the terms "unprocessed" and "partially processed"
scrap metal. EPA further limits the extent of,the exclusion by
stating that "processed scrap metal does not include any
distinct components separated from unprocessed or partially
processed scrap metal that would not otherwise meet the currentv-
definition of scrap metal." The definition for "processed scrap
metal" is clearly described in the proposed amendment to the
regulatory language for 261.1(c)(9). The Agency should consider
equally explicit definitions for "unprocessed" and "partially
processed" scrap metal. Furthermore., clarification would be
helpful in regards to the points(s) at which processing may
take place [i.e., relative to the proposed exclusion of
processed scrap jnetal being recycled]. As described in the
preamble to the supplemental notice, the proposed exclusion (and
associated definition) of processed scrap metal is "restricted
to scrap metal which has been processed by scrap metal
recyclers" [emphasis added]. The preamble and proposed
regulatory language [61 FR 2371; §261.l(c)(9)] also provide a
reasonable set of criteria for what is meant by "processing" of
scrap metal. However, clarification is not offered as to who
does and does not belong to the community of'scrap metal
recyclers.' Thus, it is possible that anyone who carries out the
processes described qualifies as a "scrap metal recycler," and
thus, would be eligible for the exclusion. DOE requests that
EPA clarify its intent concerning the qualifications of "scrap,
metal recyclers." The term partially processed" scrap metal is
f introduced in the preamble but is not defined, nor is it
included in the proposed regulatory language. It can be
inferred that scrap metal-that still contains "distinct
components... that would not otherwise meet the current
definition of scrap metal" would be considered partially
processed, and would not be eligible for the exclusion. DOE
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suggests that, if "partially processed" is intended to provide a
meaningful distinction to generators arid recyclers of scrap . .
metal, EPA should provide specific clarification or guidance on
how to distinguish this from of scrap metal, and on the
consequences relative to the proposed exclusion. Such
clarification or guidance would help the regulated community . .
determine whether scrap metal containing certain "distinct .
components" could be subject to the proposed exclusion. .
.Clarification is requested in regards to whether the
applicability of the exclusion would be affected by the point at , '
which processing is conducted e.g., the scrap metal is
"processed" at the point of generation (by the generator) versus
by a commercial "processing" facility. Guidance on practices
considered to be manual separation methods at the point of
generation, and the applicability of speculative accumulation
requirements per 261.2 to the proposed exclusion would also be
useful. ,
RESPONSE: ;; V ." " " _ / .' --.''' ' / /
. The commenter requests clarification on several different topics: the definition
of partially processed scrap metal and unprocessed scrap metal; whether a scrap metal recycler
must be used to qualify for the proposed exclusion; and the point at which the exclusion for
processed scrap metal takes effect,xand the applicability of the speculative accumulation
requirements. . . . ' ' ','.. . ' ''' / . :
In regard to the first issue, EPA used the terms ."unprocessed" and "partially .
processed" scrap metal in the preamble to clarify the term "processed scrap metal." Partially
processed scrap metal was used in the preamble as a way of indicating that the processed scrap.
metal need not be completely recycled, but may have completed one of several, steps in the
process of recycling the material. For instance, scrap metal that has been cut and sorted by the
generator prior to being sent to a scrap metal recycler would meet the definition of processed
scrap metal. The term partially processed scrap metal was intended to convey this type of
activity. Therefore; in the context of the final rulemaking, the term "partially processed scrap
metal" has the same meaning as the term "processed scrap metal." The term "unprocessed scrap
metal" covers the universe of scrap metal which does not fall within the definition and scope of
processed scrap metal. . ' . .
* . The commenter also pointed out that theirule, as written, appears to exclude. r
materials from the definition of processed scrap metal if the processing does not occur at a scrap
metal dealer. The language in the proposal was not intended to limit the exclusion in this way.
In the final rule the Agency clarifies that the exclusion for processed scrap metal being recycled
.applies to scrap metal that has under gone a processing step (as defined in the preamble to the
proposed rule) regardless of who does the processing. In other words, a processing step may be
performed by the generator, an intermediate scrap handler (elg., broker, scrap processor), or a
. . - /( - * «
.' ' ,.V: '.'.','.; looi' '' ' ''-."
-------
scrap recycler.
The commenter requested clarification concerning whether the applicability of
the exclusion would be affected by the point at which the processing is conducted. As discussed
in the preceding section, the exclusion for processed material is not effective until the scrap metal
has been processed. Once the scrap metal has undergone a processing step, it may qualify for the
exclusion from the definition of solid waste. And finally, in today's final rule, the exclusions for
excluded scrap metal and shredded circuit boards being recycled are not condidtioned on
speculative accumulation requirements.
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DCN . PH4A006 < .
COMMENTER Department of Energy
RESPONDER RE
SUBJECT SCRP . . , O
SUBJNUM- 006. . ,
COMMENT Shredded Circuit Boards!. D. 2362, col. 3 - v. 2363,
col. 2 -EPA is proposing to exclude shredded circuit boards
destined for metal recovery that are managed in containers during
storage and shipment (prior to recovery) from the definition of
solid waste in order to facilitate recovery of this material.
Used whole (i.e, intact) circuit boards sent for reclamation /'-
may be considered to be scrap metal and may therefore be exempt from
RCRA regulation. Used whole circuit boards, however, do not meet
the definition of processed scrap metal (thus, the proposed
exclusion for processed scrap metal would not apply to these
materials). DOE supports EPA's proposal to exclude shredded
circuit boards from the definition of solid waste when such
materials are managed in containers during storage and shipment
prior to recovery. However, as discussed hi the following
paragraphs, the Department requests clarification in regards to
certain issues and terms associated with the management of
circuit boards destined for recovery. Under the proposed . ,
exclusion, shredded circuit boards that would potentially
exhibit a hazardous characteristic would remain outside of RCRA
hazardous waste regulation. It would be useful to the regulated
community if EPA were to provide clarification in the final rule .
explaining that shredded circuit boards managed in containers
need not be characterized (i.e^, analyzed using the TCLP) and
that there are no time limitations associated with the storage
of shredded circuit boards subject to the exclusion. In the
preamble, EPA uses two expressions (specifically, "properly
containerized" and "managed in containers") in describing how
shredded circuit boards must be stored and shipped to qualify N' '
for the proposed exclusion from the definition of a solid waste.
, If it is EPA's intent that the types of containers typically
used to ship shredded circuit boards will suffice for the
purposes of the proposed exclusion, then the term "properly
containerized" should be removed in favor of language such as
' "managed in containers". Use of the term "properly
containerized" is vague (without further clarification) and ' '
therefore open to a range of interpretations. EPA acknowledges
that processing through "shredders, hammer mills, and similar
devices to decrease the size of the boards" is common (p. 2362,
1003
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col.3), DOE requests EPA to clarify whether, and under what
circumstances, such volume-reduction measures are to be . ; '
considered treatment of hazardous waste. Compactible solid
waste material (such as Tyvek or paper) is routinely compacted
to remove void spaces and maximize the efficiency of the . . .
container. There are instances where States have required
treatment permits for volume reduction measures such as -
compacting, hammering, or shredding. DOE believes in general . .
that volume-reduction measures that do not alter the fundamental
physical, chemical, or biological character of the material,
and are not intended to remove or reduce the hazardous nature of
the material in any way, should not be considered "treatment". . ,
As such, no permits for this type of activity should be
necessary. ' >
RESPONSE:
'
EPA thanks the commenter for supporting the exclusion from the definition of
solid waste for shredded circuit boards that are reclaimed or recovered. The commenter
requested clarification regarding several issues: whether shredded circuit boards managed in
containers need to be characterized; whether there is a time limit for storage; how the Agency
defines or characterizes the phrase "properly containerized;" and whether volume reduction
techniques (such as compacting) are considered treatment
In regard to me first issue, whether shredded circuit boards managed in
containers require hazardous waste characterization, the Agency is not modifying the current
regulations. Under 40 CFR §262. 11, generators are required to determine if a waste is hazardous
only if they generate a solid waste. Therefore, if the shredded circuit boards are in compliance
with the exclusion from the definition of solid waste, the generator would not be required to
perform a hazardous waste characterization. However, the commenter should be aware that
under 40 CFR §261.2(f), if a material is excluded from the definition of solid waste, the claimant
must provide appropriate documentation to demonstrate that the material is excluded from
regulation and therefore it need not be characterized. .
The commenter also requested clarification of whether there is a time limit for
storage of shredded circuit boards that are excluded from the definition of solid waste. In the
final rule, EPA is placing the exclusion from the definition of solid waste for shredded circuit
boards under 40 CFR §261. 4(a)(l 3). This exclusion is not conditioned on the speculative
accumulation provisions and therefore those particular storage requirements do not apply to
these materials.
The commenter requested clarification concerning how the Agency defines
"properly containerized." In the preamble of the proposed rule, the Agency stated that the
exclusion for shredded circuit boards was contingent upon the shredded circuit board being
"properly containerized." In the final rule, the Agency codified the exclusion to state that
shredded circuit boards are excluded from the definition of solid waste only if they are stored in
1004
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containers that are sufficient to prevent a release to the environment. Although the final rule
does hot define "sufficient to prevent a release to the environment," the Agency would consider a
claimant to be in compliance if they can show that the container intended to hold the shredded
circuit boards is sufficiently sound to cany the material to. its intended destination without any
possibility of a leak or emission into the environment.
' Lastly, the commenter asked whether volume reduction techniques (such as
compacting) are considered treatment. Since the definition of treatment under §260.10 is such a
broad definition, volume reduction techniques of wastes defined as hazardous could be
considered treatment under an implementing agency interpretation. However, when the
exclusion for shredded circuit board becomes effective;whole boards destined for recycling will
be exempt from the definition'of hazardous waste, and shredded boards will be excluded from
the definition of solid waste. Assuming that all handlers stay in compliance with the conditions
of the exclusion, there will not be any point in the generation and recycling of printed circuit
boards that hazardous waste is being handled. If waste defined as hazardous is not being handled,
treatment can not occur.
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DCN PH4A009 \ '
COMMENTER IPC -
RESPONDER RE .
SUBJECT SCRP .-.-">'"
SUBJNUM 009
COMMENT As the trade association representing the US electronic
interconnection industry, the Institute for Interconnecting and
Packaging Electronic Circuits (IPC), would like to submit these
comments on the proposed rule that would exclude shredded
circuit boards from the Resource Conservation and Recovery Act
(RCRA) definition of solid waste as long as the boards are
destined for metal recovery and are managed in containers during
storage and shipment prior to recovery. The proposed rule was
published in the Federal Register on January 25, 1996 (61 Fed.
Reg. 2338). IPC represents approximately 1900 companies in the
electronic interconnection industry. Our regular membership
includes companies that produce bare printed circuit boards
(which are commonly referred to as printed wiring boards in the
industry) as well as companies that produce electronic
assemblies by attaching electric components to bare PWBS. IPC
members also include suppliers to the industry as well as major
original equipment manufacturers (OEMS) that use PWBs in their.
own products. These products include consumer electronics as
-well as more sophisticated industrial and military electronic
systems. In addition, the IPC membership includes over 1 00
representatives from government and academia with vital :
interests in this crucial technology. IPC and its member
companies are committed towards improving .the environmental
performance of the PWB industry. IPC is actively involved in
the EPA's Common Sense Initiative, participating as an industry
- representative on its Computers and Electronics Subcommittee.
That Subcommittee is examining barriers to pollution prevention
in the computers and electronics industries, and has identified
RCRA's solid waste definition as a barrier to increased
materials reuse and recycling. IPC is also working with EPA's
Design for me Environment project which is examining and
testmg alternatives to PWB manufacturing processes that may ,
result in better environmental performance.
. IPC would like EPA to comment on why F006 sludge has not
been selected for exclusion from EPA's solid waste definition.
Like shredded boards, F006 sludge contains high levels of
valuable reusable and recyclable materials -namely, precious
1006
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metals. F006 sludge can also be easily containerized during ';'
storage and shipment prior to recovery. Given the reasoning , , '
. that EPA used to exclude shredded circuit boards from the
definition of solid waste in the proposed rule, EPA could also
exclude F006 wastewater sludge from the definition of solid ,
waste. Excluding F006 wastewater sludge from the definition of
sblid waste would go a long way towards encouraging facilities
to recycle this metal-rich material. 1.7.3 The National Mining
Association has proposed that the EPA provide an exclusion for ,
metal-bearing secondary materials from outside industries (e.g.,
electroplating sludge from the metal finishing industry, F006) :' , : /.
that are processed within the primary mineral processing
.industry. EPA has contended, however, that such an exclusion is ' .
"beyond the scope of this rulemaking." The EPA states that the
scope of the rulemaking is "to amend the solid waste definition
specifically for the mineral processing industry at this time in
order to most accurately set out the scope of land disposal ' . .
prohibition and treatment standard for mineral processing v ';-.
waste." 61 Fed. Reg. at 2348. IPC contends, however, that since
EPA is addressing industries other than the mineral processing :
industry in this proposed rule as well as the recovery of
materials generated by such industries (e.g., processed scrap
metal, shredded circuit boards), the exclusion of F006
Wastewater sludge, which is a significant by-product of the " ...
printed circuit board industry, is indeed within the "scope of
this rulemaking11. ' .
RESPONSE: '.'-.'' '.;'./' '-- - '..../:
The Agency still supports that expanding the exclusion to include F006 is
beyond the scope of this rulemaking. EPA is currently working on a proposed rule to amend the
definition of solid waste and believes that effort is the correct forum to address the status of any
additional materials. ' . . '
1007
-------
DCN PH4A009 ".,.'.
COMMENTER IPC '
RESPONDER RE ,
SUBJECT ,SCRP
SUBJNUM 009 ^ .
COMMENT IPC would also like EPA to expressly verify in the public record
that EPA has determined that spent solder baths, also known as
"pot dumps," meet the definition of scrap metal and, therefore,
are not subject to RCRA solid waste regulations as long as they
are being reclaimed. Jeffrey Denit, Acting Director of EPA's
Office of Solid Waste, sent a letter to the Lead Industries
Association on September 20,1993, stating that the EPA has ,
determined that spent solder baths meet the definition of scrap
metal when reclaimed and, therefore, are not defined as solid '
waste under RCRA (see Attachment). Many IPC members are unaware,
of this EPA determination and, therefore, treat their spent
solder baths as RCRA-regulated solid waste despite the fact that
EPA has determined that such treatment is unnecessary. It is
important for EPA's internal determinations to be disseminated '
to regulated entities, particularly when such determinations
represent a cost savings to the industry. As a result, IPC
requests EPA to include spent solder baths in the definition of " - , -
scrap metal in the Code of Federal Regulations.
RESPONSE:
In response to the commenter's request that the interpretation of the regulatory
status of secondary materials associated with the generation or management of printed circuit'
boards be made available in a rulemaking, rather than solely in the form of an interpretive letter,
EPA is publishing a clarification of the regulatory status of these materials (including pot dumps)
in the preamble to the final rule. Spent solder baths meet the definition of scrap metal and are
therefore excluded from RCRA regulation under the regulatory exclusion for scrap metal being
recycled. It is not practical for the Agency to list individually all items that meet the definition of
scrap metal. . " ,
1008
-------
1009
-------
DCN PH4A009
COMMENTER,IPC
RESPONDER RE
SUBJECT SCRP
SUBJNUM 009 ~
COMMENT IPC applauds EPA for proposing to exclude shredded circuit boards from the
RCRA definition of solid waste. This exclusion will remove shredded circuit boards from the
jurisdictional reach of RCRA Subtitle C which, when triggered, requires solid waste generators
to comply with costly and administratively burdensome hazardous waste management practices.
The costs and administrative burdens associated with Subtitle C management discourage the
recovery and reuse of materials contained in substances that are characterized as hazardous under
RCRA. As a result, the proposed rule will encourage the reuse and recycling of materials
contained in shredded circuit boards and will greatly assist the PWB industry improve its
environmental performance.
EP A's proposed rule represents a reasonable approach to the RCRA
classification of solid waste, which acknowledges that materials, even those in a "waste-like"
stage (i.e., shredded), ^
should not be classified as a solid waste if they contain valuable reusable and/or recyclable
materials, such as precious metal, if their constituents can be containerized during storage and
shipment prior to recovery, and if they are destined for materials recovery.
IPC applauds EPA for acknowledging that the
regulatory costs and administrative burdens
associated with RCRA solid waste management can
operate as a deterrent to the successful reuse and ,
recycling of materials, particularly those that are
generated as a by-product of manufacturing
processes. EPA's proposed rule, excluding shredded .
circuit boards from the RCRA definition of solid
waste, will go a long way towards removing mat
disincentive. However, since the proposed rule
applies only to shredded circuit boards, IPC urges ^
EPA to use the reasoning behind the proposed rule to
craft a multi-purpose exclusion rule that will achieve
greater environmental gains through increased reuse
and recycling for all industries. For example, EPA
could issue a proposed rule, which could be used to "
exclude materials that contain high levels of valuable
constituents with high reuse and/or recyclability
potential (e.g., precious metals) as long as they are
sufficiently containerized when stored or shipped
and as long as they are destined for metals recovery.
IPC would like EPA to comment on the feasibility of
1010
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proposing such a multi-industry solid waste
.exclusion rule that builds on EPA's current scrap
metal exclusion. f
RESPONSE:
The Agency thanks the commehter for supporting the exclusion for shredded
circuit boards that are being reclaimed or recycled from the definition of solid waste. The
Agency notes that the exclusion from the definition of solid waste for shredded circuit boards is
being promulgated based upon an analysis of the available nformation on the characterization
and management of these wastes against the five factors that the Agency has established for
determining whether materials are "commodity-like." The Agency notes that containerization in
and of itself was not the only reason the Agency concluded that shredded circuit boards should
be excluded from the definition of solid waste. The other five factors support this determination
as well.
EPA further notes for the commenter that the Agency will be addressing broader
issues and clarifications related to the definition of solid waste in a future rulemaking. Modifying
the Agency's current interpretation of the definition of solid waste is beyond the scope of this
, rulemaking and is more appropriately addressed in the context of the Definition of Solid Waste
rulemaking, which will be proposed in the near future. The definition of solid waste rulemaking
is the correct forum to address the regulatory status of any, additional metal-bearing materials.
However, the Agency points out that any party may petition the EPA or state, if authorized, for a
variance front classification as a solid waste for materials that are partially reclaimed. Partially
reclaimed materials may be granted a variance from classification as solid waste, if after
reclamation, the resulting material is "commodity-like." The Regional Administrator will
evaluate such a petition and make a determination based on the evaluation factors for
determining whether a partially-reclaimed material is "commodity-like" provided in 40 CFR.
260.31(c). ;".,--
1011
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1012
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DCN PH4A011 , -'/..
COMMENTER NY State Dept. of Environ . '"
RESPONDER RE .
SUBJECT, SCRP ;
SUBJNUM Oil
COMMENT EPA proposes to exclude processed scrap . ,
metal being recycled from RCRA jurisdiction. "Processed scrap
metal" means scrap metal that has undergone sorting or . !
, processing that separates out non-metal materials. The
Department agrees that a material which has been processed to
. the point that it has become equivalent to a product or raw
material in quality .would be excluded from RCRA jurisdiction as
a "commodity" when used or reused. EPA should emphasize,
however, that any residues generated by the processing of scrap
metal are not scrap metal and if such residues exhibit a waste
characteristic, or are derived from a listed hazardous waste,
they would be subject to full regulation under Subtitle G. EPA
' only partially addresses this in paragraph 2 of page 2362. Page
: 2362, paragraph 2 suggests that items can qualify as scrap metal
even though they include components such as batteries and
mercury switches which, when separated, cannot themselves qualify
as processed scrap metal. This contrasts with OSWER document
9442.1994(06), dated July 22,1994, where EPA determined that,
15-pound natural gas flow regulators consisting mainly of metal
were not allowed to qualify as scrap metal because of the two
ounces of liquid mercury present. ("In general, any quantity of
liquid mercury other than trace amounts attached to or contained
in a spent material precludes that material from being a scrap
metal.") Please clarify when a material consisting primarily of metal,
but which contains some non-metal components such as mercury,
qualifies as scrap metal. On page 2362, paragraph 7 suggests that
. the variance provision of 260.31 (c)(3) (the degree to which the
reclaimed material is like an analogous raw material") is not
when a partially reclaimed material is similar in concentration
to intermediates produced from virgin ores, etc. EPA should
make it clear that 260.31 (c)(3) is met by having the candidate
material of the same concentration as an early raw intermediate.
' In the case of scrap metal, the "analogous raw materials" are
manufactured metal products. Comparison should be made to metal
products with regard to quality. According to our understanding
of the preamble discussion of the January 4,1985 Federal
Register (page 655) the measure of whether condition 260.31
(c)(3) applies is not the degree to which the candidate material is like
1013
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an equivalent virgin finished product. It is not met when the ; .
candidate material simply has the same concentration as virgin
ore or as some early intermediate. In short, the test is how '''."
* product-like or commodity-like the candidate material is. > -
Therefore, the reference to a reclaimed material being like an
analogous raw material when taken in context, addresses the
situation where the "raw material" is itself a product
' * l .
RESPONSE: ^ ,
!
The commenter has raised several different issues that require response: the
status of any residues generated by the processing of scrap metal; a request for clarification that a
material that consists primarily of metal, but contains some non-metal components, still qualifies
for the definition of scrap metal; and a request for clarification that 40 CFR §260.3 l(c)(3), which
sets the criteria of "the degree to which the reclaimed material is like an analogous material," is
satisfied when the candidate material is of the same concentration as an early raw intermediate.
The commenter first requested clarification of the status of residues from scrap
metal recycling and second, whether or not materials that are primarily metal, but have some
non-metal components still qualify as scrap metal. Today's exclusion is not intended to modify
the existing definition of scrap metal.' Therefore, the determination as to whether a waste meets
the definition of scrap metal has not changed and is made at the point of generation. Under the
definition of scrap metal, a secondary material from smelting and refining operations (e.g., slags,
drosses, and sludges), liquid wastes containing metals (e.g., spent acids and caustics), liquid
metal wastes (e.g., liquid mercury), and metal-containing wastes with a significant liquid
component (e.g., spent lead acid batteries) do not meet the definition of scrap metal and therefore
also are not classified as processed scrap metal. If, at the point of generation, a secondary
- material has enough hazardous waste residue to constitute a "significant liquid component," the
material would not qualify as a scrap metal. For example, if a tank is being decommissioned,
and it has some hazardous residue on the bottom, the tank may not qualify as scrap metal if the
implementing agency determines that the residues constitute a significant liquid component. In
order to meet the definition of processed scrap metal, the material must first meet the definition
of scrap metal. Therefore, any distinct components that are separated from a scrap metal that
would not otherwise meet the current definition of scrap metal would not meet the definition of
processed scrap metal. The separated material would be a newly generated waste and therefore
subject to a hazardous waste determination. If this newly generated waste is a hazardous waste,
then the waste must be handled as hazardous waste.
The commenter also asks about the applicability of one of the factors at 40 CFR
§260.3 l(c)(3) that the Agency uses in determining whether a material should be granted a
partially-reclaimed material variance. The Agency evaluates available information and data
related to a material against the five factors in 40 CFR §260.3 l(c)(3) for determining whether
partially-reclaimed materials are "commodity-like" and not part of the waste management
problem. The commenter specifically references the factor related to the degree to which the
initially-reclaimed material is like an analogous raw material. This factor examines if a material
1014
-------
can substitue for a virgin material in a process. The Agency notes that in the context of today's
rulemaking, these factors were used to evaluate whether excluded scrap metal being recycled is
"commodity-like" rather than part of the waste management problem. This evaluation was not
intended to determine whether this material should be granted a partially-reclaimed variance
under 40 CFR §260.3 l(c)(3). The Agency did 'not rely on a single factor in it's analysis for the
excluded scrap metal exclusion, but based this decision on available data and information on all
of the five factors. Discussion of the criteria found at 40 CFR'§260.3 l(c)(3) as it is used in
evaluating materials for a partially-reclaimed material variance is beyond the scope of this
rulemaking. . . '-'.' - * 1
EPA further notes for the commenter that the Agency will be addressing broader
issues and clarifications related to the definition of solid waste in a future rulemaking. Modifying
the Agency's current interpretation of the definition of solid waste is beyond the scope of this
rulemaking and is more appropriately addressed in the context of the Definition of Solid Waste
rulemaking, which will be proposed in the near future.
1015
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DCN . PH4A011
COMMENTER NY State Dept. of Environ
RESPONDER RE
SUBJECT SCRP ,
SUBJNUM Oil
COMMENT EPA proposes to exclude from RCRA jurisdiction Shredded
Circuit Boards destined for metal recovery that are managed in
containers during storage and shipment prior to recovery.
Currently, whole circuit boards are recognized as "scrap metal,"
which is currently exempt from regulation. According to EPA the
purpose of this proposed exclusion is to facilitate recovery of
this material. The Department finds EPA's reasoning difficult
to follow, particularly when EPA suggests that shredded circuit
boards may not qualify as "scrap metal." Shredding does not
enrich or deplete the material with respect to metal content.
Since shredding does not involve separation of non-metal
components, SCBs have as much "scrap metal" after shredding as
before. As scrap metal, shredded circuit boards would be exempt
. from regulation and this would facilitate recovery of this
material as well as a jurisdictional exclusion. Perhaps the ,
issue can be resolved by reexamining the reasoning used originally to
designate printed circuit boards as scrap metal in
the 1992 memorandum. This memorandum, believed to be OSWER
number 9441-1992(27), dated August 26,1992, states that
"...scrap metal is defined based in large part on the physical
appearance of a secondary material...." That same memorandum
allowed circuit boards destined for metals reclamation to be
. burned. For shredded circuit boards that do not qualify as
scrap metal, would the proposed regulatory exclusion of 261.4
(a)(14) allow the burning of these shredded boards prior to
metal reclamation/recycling/recovery? Or, since burning in
incinerators is "... never an exempt type of recycling..."
(OSWER document 9489,1994(02), dated September 19,1994), are
these shredded boards forbidden from being considered destined
for reclamation/recovery if they are burned first? Also, please
clarify how the Sept 19,1994 document's seemingly unqualified
- . rejection of burning as a preliminary recycling step can be
reconciled with the August 26,1992 document's allowance of
.burning as a preliminary recycling step. It is more difficult to
understand why a jurisdictional exclusion is proposed for SCB
and why it is conditioned upon management in containers. EPA has
never before conditioned a jurisdictional exclusion on .the type
of storage units employed, except where it was necessary to rule
1016
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out the use of land-based units that might provide an element of
.discard. We do not see why SCB are "more like articles in
commerce" than whole circuit boards, when further processing is ,
still required to separate out the non-metal components.
Moreover, by requiring management in containers in order to
utilize the jurisdictional exclusion, shipments of SCB in bulk , '
would then, presumably, be fully regulated (i.e., it not -, - ' '
excluded or considered to be "scrap metal"), unless managed in
large containers, such as roll-offs. If anything, this proposal
could establish a barrier to the recycling of printed circuit
boards removing all regulatory exceptions and not allowing the
jurisdictional exclusion for bulk shipments of SCB. It would be
better for EPA to remain silent on this issue or. to affirm that ~ ' -
SCB would still be regarded as "scrap metal" and exempt from
regulation. If circuit boards were processed to separate out
ndh metal components, then, at that point, the enriched material .
could properly be excluded from RCRA jurisdiction, consistent
with the proposed exclusion for processed scrap metal. ' . ,
RESPONSE: , ''
,..'" ' .-''
The commenter raises three issues: a request for clarification of why whole
circuit boards also are not excluded from the definition of solid waste; clarification of two policy
directives that appear to contradict each other concerning burning as a recycling step; and
clarification of why containers are required to meet the shredded circuit board exclusion.
The commenter first discusses the issue of extending the proposed exclusion to
whole circuit boards. The commenter argues that since the content of the boards is no different
before or after shredding, there should be no difference in their regulatory status. The Agency
disagrees. Whole used circuit boards are less commodity-like than shredded circuit boards.
Whole used boards, compared to shredded circuit boards, are harder to assay, more difficult to
handle and may contain proprietary information of generators and manufacturers. EPA also
notes that since 1992, used whole boards are currently classified as scrap metal and therefore
when recycled are completely excluded from RCRA regulatory requirements. Therefore, no
RCRA regulatory requirements such as manifesting, export or storage permit requirements
currently operate as disincentives to environmentally sound recycling of these materials. The
exclusion from RCRA jurisdiction for used shredded circuit boards is necessary because they do
. not qualify for die definition of scrap metal and thus may be subject to RCRA regulatory
requirements that may serve as disincentives to their recovery. EPA also believes that because
whole used circuit boards are classified as scrap metal, that excluding whole used boards from
the definition of solid waste is not necessary to ensure environmentally sound recovery of, these
materials and would be confusing to the Agency' s current definition of scrap metal;
The commenter also requested clarification of how to reconcile a 1994 policy
letter stating that the regulatory exclusion for certain recyclable materials (e.g., precious metal-
1017
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bearing recyclable materials are not exempt from incineration requirements) with a 1992 ,
memorandum on circuit boards that identifies burning as a possible preliminary step in recycling
of whole circuit boards. First, the commenter's request is outside the scope of the final rule. The
policy the commenter is discussing pertains to an Agency memorandum on whole circuit boards
rather than shredded circuit boards. Second, the commenter is incorrect in assuming an apparent
conflict exists between these two Agency statements. The commenter assumes that all burning
of secondary materials must occur in incinerators instead of other thermal devices such as
boilers, industrial furnaces and miscellaneous thermal treatment units. The recycling exclusion
of 40 CFR 261 -6(a)(2) only pertains to shredded circuit boards with economically recoverable
amounts of precious metals. In 1993, EPA clarified that precious metal-bearing hazardous
wastes, when legitimately recovered in thermal recovery units, are not subject to 40 CFR Part
264, Subpart O requirements (Simon to Shapiro; December 27,1993 memorandum). The
(September 1994 letter does not disturb this policy and describes the status of the thermal unit as
an incinerator rather than a boiler or industrial furnace.
Lastly, the commenter requests a clarification of why containers are required to
meet the shredded circuit board exclusion. The process of shredding the boards produces small
fines from the whole board which are dispersible and do not meet the RCRA regulatory
definition of scrap metal. However, the Agency has concluded that the application of RCRA
regulatory provisions to shredded boards may present serious disincentives to their recovery.
EPA proposed to exclude shredded circuit boards being reclaimed from the definition of solid
waste to facilitate their recovery. In addition, the Agency determined that shredded circuit boards
satisfy the five factors for evaluating whether a material is "commodity-like," and therefore not a
part of the waste management problem. Containerization of the shredded circuit boards, along
with the value of the material, serve to minimize loss. Note that containerization in and of itself
was not the only reason the Agency concluded that shredded circuit boards should be excluded
from the definition of solid waste. The other five factors supported this determination as well.
1018
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DCN PH4A015 '
COMMENTER General Motors Corporation '.'*.
RESPONDER RE
SUBJECT SCRP , " . "' :
SUBJNUM 015 , ,''" , -
COMMENT Processed Scrap [61 FR 2361,40 CFR 261.1 (c)(9)] The preamble
discussion and the proposed definition of processed scrap does .
, . not at all recognize the handling methods that may be in use at
a particular generator site. The proposed definition of .
processed scrap metal is scrap metal which has been manually or ,
mechanically altered to either separate it into distinct .-<'
materials to enhance economic value or to improve the handling
of materials. Processed scrap metal includes, but is not limited . .
. to scrapmetal which has been bailed ...This definition is %,
adequate for its intended purpose; however, an inspector using a
narrow interpretation definition could cause difficulties to
arise at facilities that generate scrap metal. Scrap metal in
route from its "pomt of generation" to the area of the facility ,
where bailing, shredding, melting, etc., occurs could be called < .
a solid waste. General Motors does not believe, especially in.
light of this preamble discussion and proposed rulemaking that
.the Agency intends for scrap metal hi process at a manufacturing
. facility to be subject to solid waste regulations. General . <
Motors suggest that the definition of "processed scrap metal" be
modified to include an addition such as the one utilized in the ^ .
text below. Processed scrap metal is scrap metal which has been -;, .
or will be processed on-site such that it will be manually or .
mechanically altered to either separate it into distinct .
materials to enhance economic value or to improve the handling
of materials. Processed scrap metal includes but is not limited
to scrap metal which has been bailed... .''. «
RESPONSE: ^
Under the final rule's exclusion for excluded scrap metal, if the scrap metal is
not home or prompt scrap, the exclusion will not take effect at facilities until scrap metal has;
undergone a processing step. Therefore, there will be a certain period of time from the point that
the scrap metal is generated to the first processing step that scrap metal will be exempt from the.
hazardous waste definition, but not excluded from the definition of solid waste (40 CFR
§261.6(a)(3)(ii)). The commenter seems to be requesting that the exclusion from the definition
of solid waste be extended to unprocessed scrap metal if the processing will occur on-site. The
Agency has shown that" there are some types of unprocessed scrap metal (home and prompt)
which are sufficiently commodity-like that they will be handled properly. However, other types
1019
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of unprocessed scrap metal are not similar to analogous raw metal concentrates and
intermediates, and therefore were not granted an exclusion from the definition of solid waste. In
today's final rule, the Agency has expanded the scope of the exclusion to include home scrap
metal (e.g., turnings, cuttings, punchings, and borings generated by steel mills, foundries, and
refineries) and prompt scrap metal (e.g., turnings, cuttings, punchings, and borings generated by
the metal working/fabrication industries). Although the Agency appreciates, from a theoretical
standpoint, that there are situations where the time between the point of generation and the first
processing step could be as little as a few minutes, there could also be situations where
unprocessed scrap metal is stored on-site fo'r a significant period of time. The Agency is
confident that processed scrap metal is sufficiently commodity-like that it will be handled as
carefully as a raw material.
1020
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DCN PH4A016 , '
COMMENTER Public Service Electric &
RESPONDER RE
SUBJECT SCRP . -./"','-,
SUBJNUM Ol6 '
COMMENT PSE&G supports EPA's proposal to exclude . ;
scrap metal and shredded circuit boards managed ,
in containers from the definition of solid waste. (61 Fed. ,
Reg. 2361-63) PSE&G, which is actively involved in resource
recovery operations views this proposal as very much a
progressive step in the right direction towards promoting ',,.'
recycling of these products. As EPA has recognized, the
designation of recyclable materials as solid wastes stigmatizes ' ' ' ,
the material and creates a significant deterrent to its
beneficial reuse, (id. at 2363) While this initiative is .;
well-intended, PSE&G is concerned that such rulemaking, on a
case-by-case basis, through individual proposed rulemaking and .
comment is inefficient. We also believe that such regulatory
development leads to confusion by promoting differing regulatory >
positions for different materials that are inherently similar in
their marketability and value. PSE&G, like many other companies,
* - generates recyclable materials that are marketable and ,
considered valued commodities, rather than solid wastes. .These
materials are inherently more commodity-like than waste-like.
Because of this distinction, PSE&G believes a more productive
approach would be for EPA to, establish criteria that may be used '.
to distinguish between solid waste and commodity-like . ",
designations. This approach would be consistent with that used ,
. by the regulated community under the RCRA program, where the '
generator determines whether a solid waste is a hazardous waste
(40 C.F.R. 262.11) PSE&G encourages the Agency to move forward
in a comprehensive proposal to amend the definition of solid .
waste to encourage recycling and reduce the generation of solid
wastes.
' r . \ ' ' ' '
RESPONSE: , . x
' . ' ' i ' / ' ' ' * ' '
the commenter appears to be taking the position that promulgating exclusions
for recyclable materials one by one is inefficient because there are many wastes that could be
considered to be commodity-like, and therefore should be excluded from the definition of solid
, waste. The commenteVs request is beyond the scope of this rulemaking and is better addressed
in the Definition of Solid Waste rulemaking, due to be proposed in the near future. .
1021
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1022
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DCN PH4A017 . ' . , v
COMMENTER Chemical Waste Management
RESPONDED RE '
SUBJECT SCRP. , , , .
SUBJNUM 017 . . r '
COMMENT Exclusion of Process Scrap Metal From the Definition of
Solid Waste (61 Fed. Reg. at 2361) The Agency is proposing to
amend the definition of solid waste by excluding processed scrap '
metal being recycled from RCRA jurisdiction. The proposal is
restricted to scrap metal which has been processed by scrap
metal recyclers to be traded on recycling markets for further
reprocessing into metal end products. The Agency describes .
processing of scrap metal to include: 1) manual or mechanical :
separation of scrap metal either into specific scrap categories .
containing different metals or metal and non-metal components,
and 2) unit operations such as sintering and melting operations
which melt or agglomerate materials such as drosses and fines
into scrap metal. CWM supports this change to the definition of
solid waste. <
RESPONSE: . v
The Agency would like to thank the commenter for supporting the exclusion
from the definition of solid waste for excluded scrap metal. In today's final rule, the Agency has
expanded the scope of the exclusion to include home scrap metal (e.g., turnings, cuttings,
punchings, and borings generated by steel mills, foundries, and refineries) and prompt scrap
metal (e.g., turnings, cuttings, punchings, and borings generated by the metal working/fabrication
industries)., The Agency notes * .
that in the final rule the Agency clarifies that the exclusion for processed scrap metal being ,
recycled applies to scrap metal that has under gone a processing step (as defined in the preamble
to the proposed rule) regardless of who does the processing. In other words, a processing step
may be performed by the generator, an intermediate scrap handler (e.g., broker, scrap processor),
or a scrap recycler.'. Once the scrap metal has undergone a processing step, it may qualify for the
exclusion from the definition of solid waste. , '
1023
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DCN PH4A017
COMMENTER Chemical Waste Management ,-
RESPONDER RE
SUBJECT SCRP
SUBJNUM 017 . ' , ; ,
COMMENT Exclusion of Shredded Circuit Boards From the
Definition of Solid Waste (61 Fed. Reg. 2362) The Agency is
proposing to exclude shredded circuit boards destined for metal
. recovery that are managed in containers during storage and
shipment prior to recovery from the definition of solid waste.
CWM supports this proposal. CWM believes that shredded circuit
boards should be excluded from the definition of solid waste hi
order to facilitate recovery. In addition, CWM believes that
the Agency should clarify the regulatory status of sweeps/ash,
fluff, and baghouse dust associated with the shredding of . .
circuit boards. In a August 26,1992 memorandum from Sylvia K.
Lowrance, to Region Waste Management Division Directors (See
Attachment 1), that discusses the regulatory status of printed
circuit boards, the Agency indicates that shredded circuit ' . .
boards are no longer similar to the materials that meet the
definition of scrap metal. As a result, the sweeps/ash, fluff, .
and baghouse dust also do not meet this definition. Since the
Agency is proposing to change this position CWM believes that it
is appropriate for the Agency to also address sweeps, fluff, and
baghouse dust. CWM believes that the Agency should also exclude .
these items from the definition of solid wastes when they are
destined for metal recovery. .
RESPONSE: ,
The Agency would Uke to thank the commenter for supporting the exclusion
from solid waste for shredded circuit boards. The commenter also requested clarification of the
current regulatory status of secondary materials associated with the shredding of spent printed
circuit boards, including sweeps/ash, and baghouse dust.
Sweeps refer alternatively to a powdered material that is a residue of thermal
recovery of precious metal-bearing secondary material (often ash that is crushed into paniculate
form hi a ball mill or similar device) or particulate material that is collected from firms handling
precious metals such as jewelers and metal finishers. Sweeps, which may be generated when
spent shredded circuit boards are sent for assaying and reclamation, have been previously
classified by EPA as a by-product (Lowrance to Waste Management Division Directors US EPA,
Regions I-X; August 26,1992). As such, when sent for reclamation, sweeps are not solid waste
when considered hazardous solely by exhibiting a characteristic. Characteristic by-products are
1024
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not solid wastes when reclaimed (40 CFR §261,2(c)(3)). In contrast, when sweeps are derived
from source material that meets the description of a listed hazardous waste, the sweeps are solid
wastes that are also hazardous wastes and are regulated under the appropriate RCRA regulation
provisions (40 CFR §261.2(c)(3)).
EPA has classified baghouse dust from precious metal recovery furnaces as a
sludge (Lowrance to Waste Management Division Directors US EPA, Regions I-X; August 26,
1992): As with the by-product classification for sweeps, baghouse dust is not a solid and
hazardous waste when reclaimed, when considered hazardous solely by exhibiting a
characteristic. However, if the source material to the furnace contained a listed hazardous waste,
then the baghouse dust would be considered a solid and hazardous waste due to its classification .
as a listed sludge being reclaimed. Also as with the sweeps, even if the baghouse dust is a listed.
sludge, it may still be exempt from the definition of hazardous waste under 40 CFR Part 266,
SubpartF if it contains economically recoverable levels of precious metals. * .
The commenter's request to establish a global exclusion from the definition of
solid waste for materials such as sweeps/ash, fluff, and baghouse dust is beyond the scope of this
rulemaking. The Agency asserts that no change to the current regulatory framework is necessary
for: these materials, given current regulatory interpretations. ,
1025
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DCN PH4A019 .
COMMENTER Westinghouse Electric Cor
RESPONDER RE
SUBJECT SCRP .'-'
SUBJNUM 019 . ,
COMMENT Westinghouse supports EPA's
proposal to exclude scrap metal and shredded circuit boards from
the definition of solid waste. We concur with the rationale
presented by EPA in the preamble and believe these actions would
not adversely impact human health or the environment.
RESPONSE:
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for shredded circuit boards.
1026
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1027
-------
DCN ; PH4A021 .,
COMMENTER Association of Container .
RESPONDER RE - , .
SUBJECT SCRP ' .. -
SUBJNUM 021
COMMENT The Association of Container Reconditioners (ACR) hereby
comments on the proposed Exclusion of Processed Scrap Metal and
shredded Circuit Boards from the definition of Solid Waste,
which appeared in the January 25,1996 Federal Register. Our
members are businesses engaged in the cleaning and restoration
of packaging materials, primarily 55-gallon steel drums. Each
year, more than 40 million steel drums are reconditioned for
reuse in the U.S. Since source reduction including reuse is an
EPA priority, ACR believes the proposed rule must be revised to
encourage U.S. businesses to recondition and reuse containers
where practicable, instead of prematurely scrapping used
containers. 7.0 Definition of Processor ACR believes EPA has not
adequately defined the term "processing." As published,
processed scrap metal is metal that "has been separated, melted,
or otherwise processed to add value or improve handling
qualities." EPA proposes to exclude processed scrap metal from
the definition of solid waste because it is a secondary material
that is "commodity-like." Processed scrap metal is
"commodity-like" if it has an "inherent positive economic
value," and can be sold into an established market. Since there
is no definition of the term "processing" in the proposal, any
action that "adds value" to scrap metal, e.g., segregation of
like items, constitutes "processing." Thus, virtually any
facility handling metals in any form could be a scrap metal . -
processor. It is a given that at some point during the
collection and processing stages, scrap metal becomes secondary
material and assumes commodity-like characteristics, but this
. stage is not defined by the EPA. In fact, the Agency's own
research shows that processing is required before scrap metal
could be considered commodity-like. Therefore, ACR believes
that EPA must determine (a) at what point in the metal recycling
continuum does scrap processing begin, and (b) what amount or
type of processing is necessary before scrap metal becomes
commodity-like and falls out of the definition of solid waste. .
1028
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RESPONSE:
. . i \
A material that meets the definition of scrap metal is.excluded from the
definition of solid waste when it also meets the definition of excluded scrap metal. If the scrap .
metal does not fall within the definition of one of the categories of excluded unprocessed scrap
metal (home or prompt scrap), then the material must meet the definition of processed scrap
metal to be excluded from the definition of solid waste. In response to information provided by
commenters, the Agency has identified chopping, crushing, flattening, cutting and sorting as
processes typically used in the processing of scrap metal for recycling that were omitted from the
proposed definition. The Agency has added these processes to the definition of processed scrap
metal in today's final rule which reads: "scrap metal which has been manually or physically
altered to either separate it into distinct materials to enhance economic value or to improve the
handling of materials. Processed scrap metal includes but is not limited to scrap metal which has
been baled, shredded, sheared, chopped, crushed, flattened, cut, melted, or separated by metal
type (i.e., sorted), and, fines, drosses and related materials which have been agglomerated." The
Agency clarifies that the exclusion for excluded scrap metal being recycled applies to scrap metal
that has undergone a processing step regardless of who does the processing. In other words, a
processing step may be performed by the generator, an intermediate scrap handler (e.g., broker,
scrap processor), or a scrap recycler. Once the scrap metal has undergone a processing step, it
may qualify for the exclusion.
1029
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DCN . PH4A021
GOMMENTER Association of Container
RESPONDER RE , ,
SUBJECT . SCRP
SUBJNUM 021
COMMENT ACR believes EPA should structure a category of "reusable metal
materials that can be reused for their original intended
purpose. Such items should not be defined as scrap until they
have met separate and specific management criteria. For
' example, a RCRA-empty container between 30 and 3,000 liters that
previously contained hazardous substances must be cleaned and
mechanically altered (i.e., crushed or. shredded) in order to be
defined as processed scrap metal. After mechanical alteration,
such scrap metal should meet at least the following requirements
to be defined as processed scrap metal: (1) the Institute of
Scrap Recycling Industries (ISRI) definition of cleanness for
ferrous scrap be referenced by EPA. ISRI's definition states:
"All grades shall be free of dirt, nonferrous metals, or foreign
material of any kind". However, these terms are not intended to
preclude the accidental inclusion of negligible amounts where it
can be shown that this amount is unavoidable in the customary
preparation and handling of the particular grade; and (2) a '
steel container must be mechanically processed so as to meet one
of ISRI's ferrous scrap codes, such as code number 211 shredded
scrap. These definitions and standards are referenced in ISRI,
. Scrap Specifications Circular 1994,1325 G Street, N.W.,
Washington, D.C. 20005. Consistent with ISRI's cleanness
definition, ACR and ISRI have an agreement that affirms
containers are to be cleaned prior to being sent to a scrap
yard. Currently, under the Department of Transportation (DOT)
regulations, an unclean RCRA-empty container is handled
analogously to a full container. The empty container must have. . .
all closures in place and all labeling as to original contents '
and associated hazards. Any unclean crushed, containers would be
required to be containerized and labeled. Cleaning prior to
crushing ensures DOT compliance. Under normal circumstances,
steel drums can be reused 5-10 times. By clarifying the ',-
v definition of processing or differentiating "reusable metal
materials" from other, scrap metal, EPA would encourage industry
to reuse prior to recycling, which is consistent with EPA's
Hierarchy of Integrated Waste Management. (EPA, Decision-Makers
Guide^to Solid-Waste Management, EPA/530-SW-89-072) A
reconditioner operates in a manner consistent with the hierarchy
1030
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.by cleaning and scrapping only those that are unfit for reuse. . ,
We appreciate this opportunity to comment on the proposed
changes in regards to processed scrap metal. . :
RESPONSE: . .,
In the final rule, the Agency did not create a separate category for reusable metal
materials that can be used for their original intended purpose. Although the commenter suggests
that establishing a separate category would be an incentive for the reconditioning and reuse of
55-gallon steel drums and other like containers, the Agency does not believe that the regulation
as proposed is a disincentive for such activity. Currently, drum reconditioning is a form of
recycling activity and is exempt under 40 CFR §261.2(c) provided it meets conditions at 40 CFR
part 261.7 for empty containers. Therefore, drums being reconditioned are not affected by
today's rule. Such drums are generally fabricated from materials such as carbon steel which do
not contain hazardous constituents and would likely not be classified as hazardous.. The Agency
believes mat the proposed regulation does not serve as a disincentive to reuse and therefore, a
separate category for reusable metal materials is not being established in today's final
rulemaking. . .
1031
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DCN . PH4A032 . /-' ; ...
COMMENTER , Eastman Kodak Company ' - , .
RESPONDER RE
SUBJECT SCRP < .:-..;
SUBJNUM .032 ' ,
COMMENT We would like to take this opportunity to provide our strong
support for the exclusions to the RCRA definition of solid waste ,
being proposed for processed scrap metal and shredded circuit , .
boards which are incorporated within the proposed rule on .
mineral and mining processing wastes., ,
RESPONSE: . .
' '- .' ' " - ( ' , '
The Agency thanks the commenter for supporting both exclusions from the
definition of solid waste for excluded scrap metal and shredded circuit boards.
1032
-------
DCN > PH4A032 ; . '
COMMENTER Eastman Kodak Company
RESPONDER KM
SUBJECT SCRP
SUBJNUM 032 . - . .
COMMENT Adopt me Proposed Excliision for Processed Scrap Metal
Kodak agrees with the Agency that processed scrap metal should not be
captured by the RCRA definition of solid waste when it is
destined for recycling. Many companies, including Kodak,
separate scrap metal into categories in order to enhance its
value in the marketplace. This material has truly become a , .
commodity in the world market, sought by many who operate metal
recycling facilities. Once these materials have been separated
into metal types (e.g., iron and steel; aluminum; copper and l
brass) they are managed to reflect the real value which they
represent. Clearly this material is not part of the "waste
disposal problem," and should not be subject to RCRA regulation.
Even though currently there are minimal requirements in the RCRA , . - .
regulations for scrap metal, it is stigmatized by being
considered a solid (and potentially hazardous) waste. By " ,.
providing the proposed exclusion to the definition of solid
waste me Agency can help remove tnis impediment to the
recycling of these materials. This is not only important in the ,'.
present manufacturing climate, but will become increasingly
important in the years ahead as companies become more involved
in the de-manufacturing of end-of-life equipment ..
' " *
RESPONSE: : ,
EPA thanks the cpmmenter for supporting the proposed exclusions from the
definition of solid waste for scrap metal. x ,
1033
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DCN . PH4A032
COMMENTER Eastman Kodak Company
RESPONDED KM -
SUBJECT SCRP
SUBJNUM 032 "
COMMENT , Adopt the Proposed Exclusion for Shredded Circuit Boards
Kodak also agrees with the Agency that shredded circuit boards should not be
defined as a solid waste when intended for metals recovery.
Typically their precious metal content gives these materials a
real value, making them a commodity in the marketplace.
Shredding them is a practical technique used to destroy any
proprietary information they may contain, as well as reducing
the total volume to be stored and shipped. Using this technique '. ' -
should not penalize the generator of these materials by making ,
them ineligible for the current interpretation as being scrap
metal. The condition of environmentally protective container
, . storage, which is to be applied to the exclusion seems to be a
reasonable one. In Kodak's experience, shredded circuit boards
are commonly stored and transported in containers. Since these
containers are intended to keep their valuable contents inside,
they will also serve to protect the environment from spills. We
must commend the Agency for presenting this requirement as a
performance standard, rather than establishing detailed
prescriptive requirements (e.g., size, porosity, structural
integrity) for the containers. .This is refreshing and hopefully
reflects a small hint of the future direction of other ~
environmental regulations. Removing regulatory uncertainties and
allowing shredded circuit boards to move freely in the stream of
commerce will do much to enhance their recycling rate. This is
< not only important in the U.S. but it also sets a precedent for
the rest of the world. When this material is being recycled it
is clearly not being "discarded", and therefore is not part of
the "waste disposal problem". -
RESPONSE: -.'.-'
EPA thanks the commenter for supporting the shredded circuit board exclusion
from the definition of solid waste.
1034
-------
f
1035
-------
DCN PH4A032
COMMENTER Eastman Kodak Company/
RESPONDER KM '
SUBJECT SCRP -,.'".
SUBJNUM 032 - . . :
COMMENT Move Toward a More Generic .
Definition of Solid Waste.. While Kodak believes that the .
exclusions being proposed in this rulemaking are the right thing , .
to do at die present time, we urge the Agency to take a broader
look at the issue of commodities being recycled. Just as the
two materials which are the subject of this rulemaking do not .
I deserve to be considered solid wastes, there are many other ,
. secondary materials being put to equally environmentally
friendly uses which should not be subject to RCRA regulation.
Rather than continue to study materials one or two at a time and
propose specific exclusions, the Agency should concentrate its
efforts on establishing a more generic regulatory construct
which excludes secondary materials which are recycled back into -
bonafide manufacturing processes. A definition of .
"manufacturing process" could be established to guide generators
and regulatory agencies in determining what recycling operations
are outside the jurisdiction of RCRA. If necessary, a limited
number of criteria which are indicia of discard could be used to ,
provide limitations for the definition. This approach could
allow many of the present exclusions to be eliminated. The end
. result would be to simplify the RCRA regulations and to remove
many of the current disincentives to recycling,
RESPONSE:
The commenter's request, that EPA establish a more generic regulatory construct
which excludes secondary materials that are recycled back into manufacturing processes, is
beyond the scope of this rulemaking. The Agency will be addressing broader issues and
clarifications related to the definition of solid waste hi a future rulemaking. Modifying the
Agency's current interpretation of the definition of. solid waste is more appropriately addressed in
the context of the Definition of Solid Waste rulemaking, which will be proposed in the near
future. . ,
1036 .'
-------
DCN PH4A033
COMMENTER International Precious Metals Institute
RESPONDER RE
SUBJECT SCRP ,
SUBJNUM 033 , . . , ;
COMMENT Scrap printed circuit boards contain a substantial amount of - ,
recoverable precious metals (i.e., gold, silver) and non-precious ;. .
metals (i.e., copper), that render them a valuable commodity and
feedstock to the precious metal refining industry. Scrap
printed circuit boards are shredded for a number of important
. reasons, all of which have been accurately portrayed by the ;
agency in the proposed rule. The shredding of printed circuit
boards also has long been a standard practice in the industry
and has not resulted in an environmental incident. IPMI agrees
with the agency that shredded printed circuit boards must be
properly containerized prior to refining, not only for
environmental, protection but because of the high value as well: , : . -
IPMI also agrees with the Agency mat such material should be
excluded from RCRA jurisdiction.
RESPONSE:
' ' ' ''.'..
' The Agency, thanks the commenter for supporting the exclusion from the
definition of solid waste for shredded circuit boards. .
' N
\
1037
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1038
-------
DCN PH4AQ34
COMMENTER Institute of Scrap Recyclers
RESPONDER RE
SUBJECT SCRP v ,
SUBJNUM 034 ; .
COMMENT ISRI supports efforts by the Agency to amend the definition of
solid waste by excluding from its definition "commodity-like"
materials, such as scrap metal. Following are ISRI's comments
in response to issues raised by the Agency in the above ..
' referenced Proposed Rulemaking. ISRI enthusiastically supports ,
EPA's efforts at recognizing the "commodity-like" nature of scrap .
metal. Scrap metal which has been diverted or removed from the
waste stream for recycling is a. commodity that is analogous hi
value, physical state, and environmental benefits-if not
better in terms of environmental benefits-to any other product
or raw material. Scrap processors purchase scrap metal so as to
reclaim the metal components, and then sell the'recovered metal
to mills, foundries, alloy manufacturers, ingot makers, and
other consumers for use in making new metal bearing products,
such as automobiles, appliances, and other consumer products. .
The metal recovered by the scrap processing industry is a '
product sold hi the open market in competition with virgin raw
materials. Scrap processors have no motivation to dispose of
. such a valuable and useful product, and in fact, then* .
activities preclude the disposal of these products. EPA's basis
for excluding processed scrap metal being recycled from
regulation as solid waste is that it is sufficiently
'commodity-like."1 The Agency further discusses five factors -.
which h utilizes hi evaluating the commodity-like nature of '
processed scrap metal, or any other material being considered
for exclusion' from the definition of solid waste. Using these
five, factors, ISRI would like to add the following points to
further support the Agency's determination of the commodity-like
. nature of processed scrap metal: 1. "The degree of processing
the material has undergone and the degree of further processing
that is required." All shipments of processed scrap metal meet
1 strict specifications. Industry specifications exist for
approximately 250 different grades of nonferrous and ferrous
scrap metal. Shipments are rejected if the specifications are
not met 2. "The value of the material after it has been
reclaimed." As acknowledged' by EPA, scrap metal is traded both
. . nationally and internationally hi established markets for ,
.positive economic value. As evidence of its value, prices for
1039
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many scrap commodities are generally published in the daily
American Metal Market and weekly Metals Week. European and world
price evaluations are published weekly in;Metal Bulletin
(London). Reported prices for specific transactions in the Asian
market are published in the TEX Report (Tokyo). Other
publications provide additional pricing data. 3. "The degree
to which the reclaimed material is like an analogous raw
material." Scrap metal is used in lieu of virgin metal because
of its comparable (and in some cases preferable) performance to
virgin metal, while providing a substantial cost savings for the
manufacturer reflecting the market price and, the environmental
benefits of scrap. .Steel made from scrap is chemically and ,
metallurgically equivalent to steel manufactured from virgin
ore. In fact, most metals and alloys produced in the United
States are made using secondary materials. Any weighing of the
environmental costs and benefits of virgin versus scrap metal
use as raw materials should also take into account the avoided
, environmental damages associated with mining and beneficiation
of virgin metal. In some industries, the use of scrap lowers v
emissions and waste generation. 4. "The extent to which an end
market for the reclaimed material is guaranteed." End markets
for scrap metals include steel mills, foundries, die casters,
mills, fabricators, and manufacturers. Due to the fact that the
capital and operating costs of using scrap metal are generally
lower than those costs involved with using virgin ores and that
there are no chemical or physical differences between the
respective outputs, it is likely that the importance of scrap as
a raw material will only grow by the future, thus ensuring the
availability of end markets. There is virtually unanimous
agreement that demand for scrap metal is, and will continue, on
an upward trend. 5. "The extent to which a material is managed
to minimize loss." The scrap processing industry is committed
toward responsible and environmentally safe operating procedures
and practices. According to an EPA sponsored report on the V
environmental risks associated with scrap metal recycling,
"very few, if any, instances of environmental or human health
damages can be directly attributed to scrap metal mismanagement
during scrap metal recycling." In fact, environmental
management practices in the scrap processing industry are
increasing. According to EPA: "given increasingly stringent
controls on recycling facilities, requiring containment
buildings and runoff control, increased use of engineering
controls to capture dusts, and increased hygiene awareness at
1040
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. the job site, the potential for contamination and worker , -
exposure appears to have dramatically decreased over the past
decade." 7. As acknowledged by EPA in the study quoted above:
"scrap yards historically accepted a vast array of materials
which resulted in contamination not directly associated with the
metal. Over the past decade, at the urging of the Institute
of Scrap Recycling Industries, shredder operators have begun
to refuse any scrap containing batteries, gas tanks, tires, and
other items to reduce contamination from lead, PCBS, GFCs, and
other hazardous substances. 8 In fact, several years ago
ISRI issued an Environmental Operating Guidelines manual
providing site management practices designed to minimize
potential adverse environmental effects for all the types of
equipment and processes typically employed at a scrap processing
facility. Source control programs are now common throughout the
scrap processing industry. 9 In addition, the NPDES storm water
permit program has resulted in the issuance of permits requiring
scrap processing facilities throughout the country to develop
pollution prevention plans containing Best Management Practices
addressing good housekeeping, preventive maintenance, spill
control and response, employee training, runoff management,
erosion control, and other control measures. 10. By recognizing
that scrap metal is a commodity-like material and not solid
waste, the Agency is removing a significant deterrent to the .
increased recycling of scrap metal. The proposed exclusion will
. minimize the regulatory burden currently associated with scrap
metal and provide added economic and other incentives to recycle
the material, thus benefiting the environment, industry, and the
nation as a whole. One example of the way the current inclusion
of scrap metal in the definition of solid waste acts as a . .
possible deterrent to its recycling is in the international
trade of scrap metal. In September of 1995, Parties to the
Basel Convention agreed to amend the Convention to include a ban
on the movement of hazardous waste recyclables from developed
countries to developing countries, effective January 1,1998.
To date, few countries have ratified the amendment and instead
are awaiting guidance from the Convention's Technical Working
Group on what recyclables are covered or excluded by the ban.
Significant trade in scrap metal and other secondary materials
currently exists and the amendment to the Basel Convention could
represent a significant non-tariff trade barrier to its
continuing trade. The Clinton Administration has been very vocal
in its support of the fact that scrap metal should be excluded
1041
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from the jurisdiction of the Basel Convention. The exclusion of
scrap metal from the U.S. definition of solid waste as expressed
in RCRA, would bring the U.S. domestic regulatory situation in
line with the position that the State Department, the Department
of Commerce, and EPA have taken internationally. ,
RESPONSE: ,
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for processed scrap metal.
1042
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DON PH4A034 .
COMMENTER Institute of Scrap Recyclers .
RESPONDER RE
SUBJECT SCRP
SUBJNUM 034 ' , : , ^ :
COMMENT EPA SHOULD MODIFY ITS PROPOSAL SO THAT ALL SCRAP METAL
DIVERTED OR REMOVED FROM THE SOLID WASTE STREAM AND
DESTINED FOR RECYCLING IS EXCLUDED FROM THE DEFINITION
OF SOLID WASTE. EPA should not distinguish between processed and ,
unprocessed scrap metal in promulgating the solid waste exclusion for scrap metal
that is to be recycled. The five factors that EPA utilizes .to
evaluate the commodity-like nature of processed scrap metal .
apply to unprocessed scrap metal that has been diverted or
removed rrom the solid waste stream for the purpose of being
recycled. Scrap metal diverted or removed from the solid waste -..'..,
stream also has economic value and end markets and is just as
analogous to raw material as processed scrap metal. In. . . ' '
addition, as with processed scrap metal, the physical state of
scrap metal diverted or removed from the solid waste stream .
limits the dispersion of metal constituents during handling and
for processing. According to a recent EPA report: "Bureau of .
Mines commodity experts and other experts contacted by SAIC .
agree that scrap metal itself should not pose an environmental . '
concern, even if the scrap is stored exposed to the elements
during storage. In fact, many of the metals are either
corrosion-resistant or will oxidize, binding potential
contaminants in the metal." The artificial distinction created .
by EPA between processed and unprocessed scrap metal also
, creates unnecessary contusion for individual facility operators. ; , *
. It will be extremely difficult in many instances for a .
, particular facility operator to differentiate between processed .
and .unprocessed scrap metal for the purposes of regulatory
jurisdiction due to their similar - and in some cases identical , . ^ v
- nature. ISRI recognizes that in order for the regulations to . _;
work, both the regulated community and the regulators need to
know at what point scrap metal exits RCRA Subtitle C '
jurisdiction. ISRI recommends that point not be when processing .
occurs, but uistead when the scrap metal is diverted or removed .
from me solid waste stream for the purpose of recycling. Thus,
proposed Section 261.4(aXl 13) would read as follows: 261.4
Exclusions, (a) * * * (13) Processed scrap metal diverted or i
removed from the solid waste stream for the purpose of recycling
1043 *
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being reclaimed. By specifying that scrap metal is no longer a
solid waste when diverted or removed from the solid waste stream
for recycling, the exclusion will fully capture ail scrap metals
meeting the "commodity-like" criteria specified by EPA. In
addition, as the following examples make clear, such a criteria
can be easily followed by both industry and EPA: Example #1:
Industrial Cuttings and Turnings. Industrial cuttings and
turnings are a very common form of scrap metal generated by the
metal working/fabrication industries. Turnings and cuttings are
often generated in such a way that processing is unnecessary
prior to shipment to the consumer. Thus, the turnings and
cuttings might never meet EP A's proposed exclusion for processed
scrap even though they are definitely "commodity-like" (i.e.,
they have high intrinsic value, are in demand in many end :
markets, and pose little environmental risk). Under ISRI's
proposed exclusion, the turnings and cuttings would be excluded
from the definition of solid waste at the point the generator
decides that the material will be sent for recycling. Example
#2: Automobiles and White Goods. What about, an automobile, or
appliance, found abandoned along the roadside? In such a case,
the materials have not been diverted from the solid waste stream
for the purpose of recycling and thus would not qualify for the
proposed exclusion. If the city picks them up and delivers them
to a landfill for disposal, the same result would occur.
However, what if the landfill decides to sell the automobile to
a scrap processor for recycling, or if the city makes the same
decision? The. automobile is no longer a solid waste and exits
RCRA jurisdiction at the point where a party takes an active
step to put the material in question into a stream of commerce
v which leads to its recycling. Example #3: Demolition Scrap.
There are some situations in which scrap metal destined for
recycling may be generated in a form such that it is mixed with
waste destined for disposal. Such may be the case during
demolition projects. In such a situation, the scrap metal would
exit Subtitle C jurisdiction at the point at which the scrap
metal is removed from the solid waste and sent for recycling.
This often occurs at the demolition site. As the above examples
illustrate, creating an exit from RCRA jurisdiction for scrap
metal based not on whether it has been processed, but on when if
has been diverted or removed from the solid waste stream would
not be difficult to manage and would be more consistent with,
EPA's desire to exclude from the definition of solid waste
"commodityrlike" materials. -.'.. ,
1044
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RESPONSE: '
' ' ~ p, .". i
In response to information provided by commenters, EPA identified and studied
three different types of unprocessed scrap metal to determine whether the scope of the exclusion
should be expanded: home scrap metal, prompt scrap metal and obsolete scrap metal. Home
scrap is scrap metal generated by steel mill, foundries, and refineries such as turnings, cuttings,
punchings, and borings. Prompt scrap, also known as industrial or new scrap metal, is generated
by the metal working/fabrication industries and includes such scrap metal as turnings, cuttings,
punchings, and borings. Obsolete scrap metal is composed of worn out metal or a metal product
that has outlived it original use, such as automobile hulks, railroad cars, aluminum beverage
cans, steel beams from torn down buildings, and household appliances.
The Agency evaluated five factors to determine if it is appropriate to exclude the
waste from RCRA Subtitle C jurisdiction. The five factors are: 1) the degree of processing the
material has undergone and the degree of further processing that is required, 2) the value of the
material after it has been reclaimed, 3) the degree to which the reclaimed material is like an
analogous raw material, 4) the extent to which an end market for the reclaimed material is
guaranteed, and 5) the extent to which a material is managed to minimize loss. The Agency
applied these five factors to the three categories of unprocessed scrap metal to determine if any of
these categories meet the criteria for "commodity-like" found at 40 CFR §260.3 l(c)..
The Agency evaluated unprocessed home scrap and prompt scrap against each of
the five factors and found that these categories of scrap metal are substantially similar to
processed scrap metal due to the availability of established markets for the material's utilization,
inherent positive economic value of the material, the physical form of the material, and the
absence of damage incidents attributable to the material. However, the Agency has not found
sufficient data for evaluating unprocessed obsolete scrap metal against the set of factors
considered when determining if a partially reclaimed material qualifies as "commodity-like," and ,
therefore be granted a variance from the definition of solid waste.
Based on its analysis, the Agency has determined that the scope of the exclusion
should be expanded to include both unprocessed home and prompt scrap metal. The Agency is
not expanding the scope of the exclusion from the definition of solid waste to include obsolete
scrap metal. Providing an exclusion from the definition of solid waste for obsolete scrap metal at
this time would be premature and will be better addressed in the Definition of Solid Waste
mlemakmg, due to be proposed in the near future. - , .
1045
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DCN r. PH4A034 .
COMMENTER Institute of Scrap Recyclers
RESPONDER RE ; -
SUBJECT SCRP
SUBJNUM 034
COMMENT IN THE ALTERNATIVE, SHOULD EPA ELECT TO RETAIN ITS .
/
,' -
PROPOSED DISTINCTION BETWEEN "PROCESSED" AND
UNPROCESSED '
SCRAP METAL, CLARIFICATION OF THE TERM "PROCESSING" IS
REQUIRED
.Although ISRI clearly prefers that EPA not distinguish between
processed and unprocessed scrap in promulgating the exemption
from the definition of solid waste for scrap metal that is to be
recycled, should EPA decide to do so ISRI requests that the
Agency clarify its definition of processed scrap metal and
provide guidance in the final rule on how the exclusion will be
implemented. Specifically, EPA should specify that for the
purposes of Subtitle C jurisdiction, scrap metal is solid waste
up until the point at which it has passed through the first
process operation, regardless of who performs the first .
processing step. This is further explained below.
RESPONSE
Under the new exclusion for excluded scrap metal, if the scrap metal is not home
or prompt scrap, the exclusion will not take effect at facilities until scrap metal has undergone a
processing step. Therefore, there will be a certain period of time from the point that the scrap
metal is generated until the first processing step that scrap metal will be exempt from the
hazardous waste definition, but not excluded from the definition of solid waste (40 CFR
§261 -6(a)(3)(ii)). A material that meets the definition of scrap metal is excluded from the
definition of solid waste when it also meets the definition of excluded scrap metal. If the scrap
metal is not one of the unprocessed materials (home or prompt scrap), then the material must
meet the definition of processed scrap metal to be excluded from the definition of solid waste.
Based on several comments, the Agency has identified chopping, crushing, flattening, cutting and
, sorting as processes typically used hi the processing of scrap metal for recycling that were
omitted from the proposed definition. The Agency has added these processes to the definition of
processed scrap metal in today's final rule which reads: "scrap metal which has been manually or
physically altered to either separate it into distinct materials to enhance economic value or to
improve the handling of materials. Processed scrap metal includes but is not limited to scrap
metal which has been baled, shredded, sheared, chopped, crushed, flattened, cut, melted, or
separated by metal type (i.e., sorted), and, fines, drosses and related materials which have been
agglomerated." - '
1046
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1047
-------
DCN PH4A034
COMMENTER Institute of Scrap Recyclers
RESPONDER RE - ,
SLFBJECT SCRP
SUBJNUM 034
COMMENT The Definition of "Processed Scrap Metals" Must
, be Clarified to Include Chopping, Sorting, and Other Common
Processing Steps in the Recycling of Scrap Metals. ISRI requests
that EPA modify the definition of processed scrap metal to
clarify the range of processes that are. typically employed for
processing scrap metal. Scrap processors prepare ferrous scrap
in a number of ways. By far the most common methods are sorting
(identifying and segregating the scrap into different categories
or grades before it can be melted into new metal products), ,
shredding (primarily used in processing automobile hulks and
appliances), shearing (primarily used in cutting large and heavy
scrap - including I-beams, pipes, ship plate, and railroad cars
- into useable sizes), baling (used to compress metals that
require greater density before remelting), and torch cutting
(used to reduce metal objects into a more manageable size or to
separate one metal from another for sorting purposes). Some
facilities have more specialized operations, such as choppers '
(used to process wire and cable through granulation), automotive
engine block breakers, flatteners, turnings crushers and borings
briquetters. Non-ferrous metal is processed in similar ways.
The purpose of all of these operations is to recover the metal
content of the scrap by processing it into prepared grades
suitable for use in making new metal. Although the definitionx
of processed scrap metal proposed by EPA incorporates many of
the above processes for handling scrap metal, not all are
included. In addition, the preamble discussion includes a
definition of processing which appears to be even narrower man
the processed scrap metal definition: "Processing includes .
1) manual or mechanical separation of scrap metal either into
specific scrap categories containing different metals (e.g.,
ferrous and nonferrous, copper and steel) or metal and non-metal
components (such as shredded steel and fluff), and 2) unit
operations such as sintering and melting operations which melt
or agglomerate materials such as drosses and fines into scrap
metal." ISRI requests that the Agency modify the definition of
processed scrap metal as follows in order to further specify ' >. ,
processes typically used in the processing of scrap metals for
recycling: "scrap metal which has been manually or physically
1048
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\
altered to either separate it into distinct materials to
enhance economic value or to improve the handling of
materials.'Processed scrap metal includes but is not ..
limited to scrap metal which has been baled, shredded,
sheared, chopped, crushed, flattened, cut, melted,
agglomerated (for fines, drosses and related materials which
are not scrap metal prior to agglomeration) or separated by
metal type (i.e., sorted)..EPA .Must Recognize that
the Processing of Scrap Metal May Begin at a Point
Prior to Delivery of the Scrap Metal to a Scrap Processing
Facility According to the preamble discussion to the proposed
rule, the exclusion of processed scrap metal from the definition
of solid waste is "restricted to scrap metal which has been
processed by scrap metal readers." The proposed regulation
itself does not contain this restriction, but ISRI requests that
the Agency acknowledge in the final rule that scrap metal
processing is frequently a multi-step process. Scrap metal
which is cut, sorted, baled, or otherwise processed by a scrap
generator prior to delivery to a scrap processor for further
processing has delivered processed scrap to the scrap processor,
but the preamble does not seem to recognize this possibility.
For example, stamping plants often bale metal Stampings prior to
shipment to the scrap processor, generating some of the highest
quality baled scrap. Obviously the baled scrap metal should be
considered processed when it leaves the stamping plant for
recycling. Similarly, if a scrap processor receives a mixed
load of scrap metal containing steel pipe, I-beams, and auto
parts, sorts the scrap into, different grades or different
categories from which these different grades can be made (e.g.,
the steel pipe into #1 steel, the 1 -beams into a plate and
structural grade, and the auto parts into #2 steel), and then
ships some or all of the sorted scrap to a second scrap .
processor for further processing (e.g., baling or shearing), is the
metal considered processed scrap when it arrives at the second
yard? The answer should be yes. Scrap processing facilities vary
in terms of the equipment they possess and the operations they
conduct. The variability in operations is dependent upon a
number of factors, not limited to customer needs, resources,
transportation requirements, and geographical limitations. As a
result, some processing facilities serve as brokers of some ,
scrap metals and processors - both intermediate and final.- of
other scrap metals. It is very common for scrap processors (or -.
brokers) to purchase processed scrap either for direct resale to
1049
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a consumer (e.g., a foundry, smelter, or mill), or for further
processing prior to sale. It is also common for generators of ' .
industrial scrap to take certain preliminary processing steps
; prior to deliver of the scrap to a scrap processor. Thus, it
would be helpful if the Agency clarified the preamble language
when it promulgates the final rule to recognize these scenarios
and make it clear that scrap metal exits RCRA jurisdiction at
. the time it has passed through the first processing operation,
regardless of who performs it. There is No Need to
Create a Separate Category of "Reusable Metal ,
Materials" in Subtitle C to Address the Reconditioning of
Drums. ISRI is aware of the concern of the Association of - - '"
Container Reconditioners (ACR), as expressed in their letter to ,
this docket dated March 25,1996, that the definition of
"processed scrap metal" be narrowed in some way to assure that
reusable metal materials (metal containers) are reused to the
maximum extent possible before they are scrapped." Specifically,
ACR's comments propose a new category of materials - "reusable
/ metal materials" - that would be exempted from the definition of
scrap metal "until they have met separate and specific <
management criteria." 17 Presumably, the purpose of doing so
would be to ensure that drums sent for reconditioning would also
.be excluded from the definition of solid waste and would not be
seen to have any regulatory disadvantage over drums sent for
scrap processing. However, ACR fails to recognize that under
the current Subtitle C regime, drums being shipped to a
reconditioner for reuse are not solid wastes since they were
never "discarded," nor would this change under EPA's proposed
exclusions for processed scrap metal. Thus, ACR's concern over
differing regulatory treatment of drums destined for
Reconditioning versus drums destined for scrap processing is
unfounded and unnecessary. 18
RESPONSE: .
In response to information provided by several commenters, the Agency has
identified chopping, crushing, flattening, cutting and sorting as processes typically used in the
processing of scrap metal for recycling that were omitted from the proposed definition. The
Agency has added these processes to the definition of processed scrap metal in today's final rule
which reads: "scrap metal which has been manually or physically altered to either separate it into
distinct materials to enhance economic value or to improve the handling of materials. Processed
scrap metal includes but is not limited to scrap metal which has been baled, shredded, sheared,
chopped, crushed, flattened, cut, melted, or separated by metal type (i.e., sorted), and, fines,
1050
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drosses and related materials which have been agglomerated." '
' The Agency agrees that today's regulation is a not a disincentive for container
reconditioning. Currently, drum reconditioning is a form of recycling activity and is exempt
under 40 CFR §261.2(c). Therefore, drums being reconditioned are not affected by today-'s rule.
Such drums are generally fabricated from materials such as carbon steel which do not contain
hazardous constituents and would likely not be classified as hazardous. The Agency .believes
that the proposed regulation does hot serve as a disincentive to reuse and therefore, a separate
category is not being established in today's final rulemaking.
\
1051
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DCN PH4A034 ~
COMMENTER Institute of Scrap Recyclers
RESPONDER RE
SUBJECT SCRP . . -':..
SUBJNUM 034 -
COMMENT METAL-BEARING BY-PRODUCTS GENERATED FROM THE
PROCESSING OF SECONDARY MATERIALS ARE "COMMODITY-LIKE" AND,
CONSISTENT WITH THIS PROPOSED RULEMAKING, EPA SHOULD EXCLUDE
THEM FROM THE DEFINITION OF SOLID WASTE UNDER SECTION
261.4, - .
RATHER THAN CONTINUE THEIR CURRENT EXCLUSION UNDER
SECTION 261.2 Metal-bearing by-product materials generated during secondary
, materials processing (e.g., slags, drosses, and skimmings) are , -
currently categorized by EPA under the general category of
"characteristic byproducts," along with a wide range of
by-product materials generated by the chemical, manufacturing,
and other industries. The broad categorization of materials .
from such a wide range of industries does not recognize
differences in environmental risk and recycling rates that
exists between these materials. Similar to scrap metal, and
unlike many other by-product materials, metal-bearing
by-products generated from secondary materials processes are
"commodity-like" in that they pose little environmental risk, .' *
possess high intrinsic value, and are recycled at high rates. ,
The fact that metal-bearing by-products are recycled in such
high volumes clearly indicates that a demand exists for such
secondary materials and that end markets are available. All .
characteristic by-product materials when reclaimed are exempted
from the definition of solid waste under Subtitle C by virtue of
40 CFR Sec. 261.2. EPA is currently re-evaluating this
exclusion, along with the entire definition of solid waste, as
part of the Agency's "Reengineering RCRA process."
Given the similarities between scrap metal and metal bearing .
by-products, ISRI recommends that the Agency retain the current
exclusion from the definition of solid wastes for metal bearing
by-products, but remove it from the larger category of '"-'.'
by-product materials contained in Sec. 261.2 and place it under
Section 261.4 (exclusions). Specifically, EPA should revise .
proposed Section 261.4(a) so that it reads as; follows: 261.4
Exclusions, (a).* ** (17) Metal-bearing-by-products from
secondary materials processes that are being recycled. Although
. EPA will be addressing the regulation of by-product materials as
part of its "ReengineeririgRCRA process", it would be most ;
1052
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appropriate for the Agency to make the above proposed change in .
. / this Rulemaking, since this Rulemaking is focusing on the proper .
regulation of "commodity-like" materials under Subtitle C.
RESPONSE:
At this time, the Agency is in the process of addressing regulation of by-product
materials as part of the Definition of Solid Waste rulemaking. Finalizing the recommended
revision is beyond the scope of this rulemaking and would be more appropriately addressed in
the context of the Definition of Solid Waste rulemaking. In today's final rule, the exclusion from
the definition of solid waste for metal-bearing by-product materials will remain part of the
broader exclusion for by-products exhibiting a characteristic of hazardous waste when reclaimed
found at 40 CFR §261.2, , v
f
1053 '
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DCN PH4A034 .
COMMENTER Institute of Scrap Recyclers
RESPONDER RE .
SUBJECT SCRP
SUBJNUM 034 , " .
COMMENT ISRI supports the Agency's proposed exclusion of shredded
circuit boards from the definition of solid waste. The shredded .
boards are sold in international markets for their precious
metals content. The current regulatory scheme adds unnecessary
cost to the recycling of printed circuit boards. In fact, due
to the decreasing amount of precious metals on circuit boards,
many recyclers are finding that the costs associated with .
processing are exceeding the value of the recovered material.
The exclusion of the shredded circuit boards from the definition
of solid waste will help decrease the costs associated with -v. ,, '
processing, thus making the recycling of the boards more
economical. In a past internal memorandum, the Agency has stated
that unprocessed, spent printed circuit boards are considered
"scrap metal" due to their physical state and the fact that
recoverable metals are an integral part of the boards." . .
' Unfortunately, many persons have not had access to this internal .
memorandum, thus ISRI requests that the Agency reiterate its
position with regard to spent printed circuit boards in the
final rule promulgating the exclusion for shredded circuit
.boards.
RESPONSE: ,
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for shredded circuit boards. In the final rule, the Agency reiterates the
status of whole spent printed circuit boards, and cites the internal memorandum referenced by the,
commenter, so that the information should be readily available in both the Federal Register form
and in the internal memorandum (which is also available to the public). .
1054
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1055
-------
DCN PH4A034
COMMENTER Institute of Scrap Recyclers '
RESPQNDER RE
SUBJECT SCRP
SUBJNUM 034 . ,
COMMENT ISRI REQUESTS THAT THE AGENCY FIND THAT THE PROPOSED
EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE FOR SCRAP
METAL AND SHREDDED CIRCUIT BOARDS ARE BEING PROMULGATED PURSUANT
TO HSWA SO THAT THE EXCLUSIONS WILL TAKE EFFECT IMMEDIATELY IN ALL
THE STATES.
In its discussion of state . ,
authority, EPA states that the proposed solid waste exclusions
for scrap metal and shredded circuit boards fall into the
category of rules implementing non HSWA statutory provisions. '
The effect of such a determination on the part of the Agency; is
that the environmental and economic benefits of the exclusions
will be delayed for a substantial amount of time as each state
begins the process of amending its own regulations and EPA
approves these changes. Given EPA's intent to promote the
recycling of commodity-like materials, it would be more
appropriate for the exclusions to take effect in each of the
states immediately following promulgation by EPA. Thus, ISRI
encourages EPA to include the solid waste exclusions under HSWA
such that the exclusions will take effect immediately. If this
is not possible, ISRI requests that EPA provide incentives and
encouragement to the states to adopt the exclusions in a time
efficient manner. . .
> ,
RESPONSE:
Under §3006 of RCRA, EPA may authorize qualified states to administer and
enforce the RCRA program within the state. Following authorization, EPA retains enforcement
authority under section 3008,3013, and 7003 of RCRA, although authorized states have primary
enforcement responsibility. The standards and requirements for authorization are found in 40
.CFR Part 271. , .
Prior to HSWA and in cases where Federal regulations are promulgated under
the authorities provided by RCRA, states with final authorization administer their hazardous
waste programs in lieu of EPA administering the Federal program in the states. The Federal
requirements no longer apply in authorized states, and EPA can not issue permits for any
facilities that the state is authorized to permit. When new, more stringent Federal requirements
are promulgated or enacted, states are obliged to enact equivalent authorities and/or regulations
within specified time frames.- New Federal requirements do not take effect in an authorized state
until the state adopts the requirements as state law.
1056
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After HSWA took effect,,.the new RCRA section 3006(g) mandated that if new
requirements and prohibitions are more stringent than the current program, and the new
requirements and provisions are written pursuant to a HSWA provision, then the rule takes effect
in authorized states at the same time that they take effect in unauthorized states. EPA is directed
to carry out these requirements and prohibitions in authorized states, including the issuance of
permits, until state are granted authorization. New Federal requirements which are less stringent
than state programs do not take effect in authorized states, unless and until the states adopt such
provisions,.
The determination of whether a new regulation or provision is HSWA or non-
HS WA depends upon whether .the new provision is written pursuant to the language that was
originally promulgated in RCRA in 1976, or language that was changed or appended under
HSWA. The Agency has determined that the amendments to the definition of solid waste
proposed in the supplemental Phase IV rule were written pursuant to non-HSWA language in
RCRA. In addition, the new exclusions are less stringent than the current program. For these
reasons, the final rule will not take effect in authorized states until the states adopt the provisions.
1057
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DCN . PH4A035 . t
COMMENTER Metals Industries Recycling
RESPONDER RE ,
SUBJECT SCRP , ' -
SUBJNUM 035 . '
COMMENT MIRC supports the exclusion of processed scrap metal from the
definition of solid waste.
RESPONSE: , -
- The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for processed scrap metal.
1058
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1059
-------
DCN . PH4A035 .
COMMENTER Metals Industries Recycling ' ,
RESPONDER RE . '
SUBJECT SCRP ;
SUBJNUM 035 -,.' ^
COMMENT MIRC Supports the Exclusion of Processed Scrap Metal from
the Definition of Solid Waste. EPA has proposed to amend the
definition of solid waste by excluding "processed scrap metal"
that is recycled. Id. at 2361. EPA's proposal is limited to
scrap metal which has been "processed" by "scrap metal
recyclers" to be "traded on the recycling market" for further -
reprocessing into metal end products. EPA has defined
"processing" of scrap metal to include:"(1) manual or
mechanical separation of scrap metal either into specific scrap
categories containing different metals ( ferrous and
non-ferrous, copper and steel) or metal and nonmetal components
(such as shredded steel and fluff), and (2) unit operations such
as sintering and melting operations which melt or agglomerate
materials such as drosses and 'fines into scrap metal." Id at
2362. As a general matter, NURC strongly supports EPA's proposal
to exempt processed scrap metal that is recycled from RCRA
jurisdiction. However, the definitions of "partially processed"
and "unprocessed" need clarification, the preamble states
that "processed scrap metal does not include any distinct
components separated from unprocessed or partially processed '
scrap metal that would not otherwise meet the current definition
of scrap metal." It is unclear at which point scrap metal would
no longer contain distinct components and would be considered
"processed." EPA should clarify this point for the regulated
community. MIRC supports the position taken by the Institute of
Scrap Recycling Industries, Inc. ("ISRI") that EPA should modify
the definition of processed scrap metal as follows: Scrap metal
which has been manually or physically altered to either separate
it into distinct materials to enhance economic value or to
improve the handling of materials. Processed scrap metal
includes but is not limited to scrap metal which has been baled,
shredded, sheared, chopped, crushed, flattened, cut, melted,
agglomerated (for fines, drosses and related materials which are
not scrap prior to agglomeration) or separated by metal type
(Le., sorted). (See ISRI) Scrap metal should exit RCRA -* /
Subtitle C at the point that the material has been diverted or'
" removed from the solid waste stream for the purpose.of t
recycling, or, alternatively, at the point that the scrap metal
1060
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.has passed through the first processing operation (see id. 6-9).
. EPA has not adequately defined "scrap metal recyclers." It .
is not clear from the preamble whether anyone would be
considered a scrap metal recycler or whether it is limited to
individuals meeting specific criteria. It is equally unclear .
what is meant by "traded on the recycling market." As
proposed,.EPA's exclusion may not apply to scrap metal that is .
riot "traded on the recycling market." Some scrap metal is sold
directly to a recycler or otherwise processed by a facility for .
' its own recycling purposes. EPA should clarify that the scrap ^ :';.
. metal exemption would apply equally to all processed scrap metal .
regardless of who performs the processing and whether it is
. actually traded on the recycling market. Such a clarification
would accommodate those that process scrap metal for their own
use (i.e., an electric arc steel'maker that operates its
own scrap yard or remelts unprocessed "home" scrap). MIRC also '
encourages EPA to continue evaluating the appropriateness of
exempting all scrap metal from the definition of solid waste. .
In the meantime, NIRC supports maintaining the exemption from
the definition of.hazardous waste for unprocessed scrap metal
that is recycled. . . ,
RESPONSE: ; ,
' ' . " s -
The Agency would like to thank the commenter for supporting the exclusion
from the definition of solid waste for excluded scrap metal. The commenter has raised several
different issues for response: a request for clarification of the terms "partially processed" and
"unprocessed;" the point at which scrap metal would be considered "processed;" and a request
for clarification of the terms "scrap metal recycler" and "traded on the recycling market."
EPA employed the terms "unprocessed" and "partially processed" scrap metal in
the preamble to clarify the term "processed scrap metal." The term "partially processed scrap
metal" was used in the preamble as a way of indicating that scrap metal meeting the definition of
processed scrap metal need not be completely recycled, but may have completed one of several
steps in the process of recycling the material. For instance, scrap metal that has been cut and
. sorted by the generator prior to being sent to a scrap metal recycler would meet the definition of
processed scrap metal. The term partially processed scrap metal was intended to convey this type
of activity. Therefore, hi the context of the final rulemaking, the term "partially processed scrap-
metal" has the same meaning as the term "processed scrap metal." The term "unprocessed scrap
metal" covers the universe of scrap metal which does not fall within the definition of processed
scrap metal. < .
The language in the proposal was not intended to limit excluded materials from
the definition of processed scrap metal if the processing does not occur at a scrap metal dealer.
In the final rule the Agency clarifies that the exclusion for processed scrap metal being recycled
1061
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applies to scrap metal that has undergone a processing step (as defined in the preamble to the
proposed rule) regardless of who does the processing. In other words, a processing step may be
performed by the generator, an intermediate scrap handler (e.g., broker, scrap processor), or a
scrap recycler. .' \
Additionally, the commenter requested clarification concerning whether the
applicability of the exclusion would be affected by the point at which the processing is,
conducted. As discussed in the preceding section, the exclusion for processed material is not;
effective until the scrap metal has been processed. Once the scrap metal has undergone a
processing step, it may qualify for the exclusion from the definition of solid waste.
Finally, the term "traded on the recycling market" is intended to convey that a
market exists for the material and therefore the material is likely to be handled as a valuable
commodity. This rationale holds true for materials which are recycled or processed on-site to
enhance a facility's process. i
1062
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DGN , PH4A036 ,
COMMENTER ^ASARCO Incorporated . -,-.;.'
RESPONDER RE
SUBJECT SCRP . . ' ;
SUBJNUM 036 ' , ' . .. ,
COMMENT The exclusion for shredded circuit boards should be
jj expanded. ASARCO supports EPA's proposed exclusion from the
'![ definition of solid waste for shredded circuit boards destined
for metal recovery that are containerized. .There are, however,
additional materials related to the manufacture of circuit
boards that are also recycled within the primary mineral
processing industry that should likewise be excluded from the /
definition of solid waste. For example,. Asarco's East Helena .
plant processes valuable silver and gold fines and dusts that
are by-products of me circuit board manufacturing process. As
circuits are carved into a board, a dust containing copper, gold
and silver is produced. The dust is collected and shipped to
, East Helena for metals recovery and these materials are
containerized during shipment and storage. Therefore, EPA
, should exclude metal-bearing dusts and fines generated in the /
. production of circuit boards from the definition of solid waste
for all the reasons EPA has identified to exclude shredded ;
circuit boards. Although the current precious metals exclusion .
. may apply to these materials, see 40 C.F.R. S 266.70, the more .
tailored or particularized relief for recycled circuit boards ' .
I , would be more appropriate.
S . ., ' \' - ' " ' ' -
RJ2SPONSE:
ii Several commenters requested that EPA expand the scope of the exclusion to
include other secondary materials that are currently classified as solid and hazardous wastes such
as F006 (wastewater treatment sludges from electroplating operations) and metal-bearing .dusts
and fines. EPA is currently working on a proposed rule to amend the definition of solid waste
and believes that effort is the correct forum to address the regulatory status of these additional
materials. - .
v.
1063
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DCN . PH4A053 ,
COMMENTER Inco Ltd., Internal! Met
RESPONDER RE -
SUBJECT SCRP, . .-
SUBJNUM 053
COMMENT '" The Proposal To Exclude Processed Scrap Metal and'Shredded
Circuit Boards that are recycled from the definition of Solid
Waste also is sound. We also support EPA's proposal to exclude <
processed scrap metal and shredded circuit boards that are
recycled from the definition of solid waste. As EPA correctly
notes, processed scrap metal clearly qualifies as
"commodity-like" when evaluated in terms of the factors that the
Agency has established for making that determination, i.e.," 1)
the degree of processing the material has undergone and the
degree of further processing that is required, 2) the value of
the material after it has been reclaimed, 3) the degree to which
the reclaimed material is like an analogous raw material, 4) the
extent to which an end market for the reclaimed material is
guaranteed, 5) the extent to which a material is managed to
minimize loss." 61 Fed, Reg, at 2362. We note in passing that -
application of these same factors would lead to a conclusion
that high temperature metals recovery slag is "commodity-like"
as well. EPA also is on sound ground in proposing to exclude
from the definition of solid waste shredded circuit boards
- 7 destined for metal recovery, provided that they are managed in
containers sufficient to prevent a release to the environment
during storage and shipment to the recovery facility. As the
Agency observes, it is important to create a conditional
exclusion of this sort for shredded circuit boards "in order to
facilitate recovery of this material.'.' See 61 Fed. Reg. at
2362/3. EPA should recognize that creating comparable
conditional exclusions for other metal-bearing materials will
facilitate recovery of those materials as well. As discussed in
Part I, above, one way of accomplishing this would be to broaden
and generalize the conditional exclusion that the Agency has
proposed to establish for characteristically hazardous secondary
materials generated and reclaimed within the primary mineral
processing industry. We urge EPA to expedite the development of
a generalized conditional exclusion for all metal-bearing '
secondary materials that are destined to be reclaimed.
1064
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RESPONSE: .
' " * 't . . ' , ' ,
The Agency thanks the commenter for supporting the exclusion from the
d jfinition of solid waste for both excluded scrap metal and shredded circuit boards. The
commenter also suggested two other wastes that should be excluded. First, the commenter
suggested that high temperature metals recovery (HTMR) slag could qualify for an exclusion
biased upon the five factors under 40 CFR §260.3 l(c) that EPA uses to evaluate whether partially
reclaimed materials qualify for an exclusion from the definition of solid waste. EPA is currently
working on a rulemaking that addresses the regulatory status of HTMR slag and the Agency '',
believes that there is no reason to discontinue that effort. The commenter also suggested
evaluating other metal-bearing materials under the same five factors. EPA is currently working.
on a proposed rule to amend the definition of solid waste and believes that effort is the correct
forum to address the regulatory status of any additional metal-bearing materials. However, the
Agency points out that any party may petition the EPA or state, if authorized, for a variance from
classification as a soUd waste for materials that are paitidly reclaimed. Partially reclaimed
materials may be granted a variance from classification as solid waste, if after reclamation, the
resulting material is "commodity-like." The Regional Administrator will evaluate such a petition
arid make a determination based on the evaluation factors for .determining whether a partially-
reclaimed material is "commodity-like" provided in 40 CFR 260.3 l(c).
1065
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DCN PH4A054 .
COMMENTED RSR Corporation
RESPONDER RE ,
SUBJECT SCRP ' r '
SUBJNUM 0541 ,
COMMENT RSR supports the proposed exclusion for "processed scrap metal"
from the RCRA definition of solid waste. RSR urges EPA to
clarify that batteries and certain materials associated with
lead-acid batteries are not "processed scrap metal."
RESPONSE: ' .
Thes Agency thanks the commenter for supporting the proposed exclusion from
the definition of solid waste for excluded scrap metal. In the preamble to the proposal, the
Agency.discussed materials which are not considered to be excluded scrap metal. The Agency .
explained that "excluded scrap metal does not include any distinct components separated from
unprocessed or partially processed scrap metal that would not otherwise meet the current
definition of scrap metal." The language in the preamble was intended to clarify that any distinct
components that are separated from the scrap metal that would not otherwise meet the current
definition of scrap metal would not meet the definition of processed scrap metal. The language
was not intended to confuse the existing definition of scrap metal. In the January 4,1985
preamble (50 FR 614), the Agency defined scrap metal as bits and pieces of metal parts (e.g.,
bars, turnings, rods, sheets, wire) or metal pieces that are combined together with bolts and
soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous
can be recycled. The Agency excluded from the definition of scrap metal: secondary materials
from smelting and refining operations (e.g., slags, drosses, and sludges), liquid waste containing
metals (e.g., spent acid and caustics), liquid metal wastes (e.g., liquid mercury), and metal-
containing wastes with a significant liquid component (e.g., spent lead acid batteries). For a
material to qualify as processed scrap metal, it must first meet the definition of scrap metal.
Under today's exclusion, the existing definition of scrap metal continues to apply. Therefore,
secondary materials from smelting and refining operations (e.g., slags, drosses, and sludges),
liquid wastes containing metals (e.g.,, spent acids and caustics), liquid metal wastes (e.g., liquid
mercury), and metal-containing wastes with a significant liquid component (e.g., spent lead acid
batteries) do not meet the definition of scrap metal and therefore do not qualify as excluded scrap
metal. . .
1066
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I
f
it-.
ii/
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I "
1067
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DCN PH4A054
COMMENTER RSR Corporation
RESPONDER RE \
SUBJECT SCRP
SUBJNUM 054
COMMENT Based.on the foregoing, RSR believes that the options and
proposed exemptions are patently unfair. If the rationale for
the proposed exemption holds true for the primary industry, it
should hold equally true for the secondary metals industry.
RSR thus urges EPA to abandon the expansive approach as ,
proposed, or to promulgate a like exemption for the secondary
metals industry.
RESPONSE
. . /
- The commenter's request is beyond the scope of the proposed exclusion for
scrap metal and shredded circuit boards proposed in the Phase IV supplemental rule.
1068
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DON PH4A054
'CQMMENTER RSR Corporation
RESPONDER RE -
StfBJECT SCRP ,
SlfBJNUM 054 . . ..
COMMENT RSR supports the proposed exclusion for "processed
,., scrap metal" from the RCRA definition of solid waste, provided
that it is EPA's intent to exclude from this definition
materials such as lead-acid batteries; and certain other :
lead-bearing materials generated by battery reclamation and/or
separation activities. RSR agrees with EPA's conclusion
that processed scrap metal (as defined in the proposed rule) is
sufficiently "commodity like", and that regulation of this
material is not necessary. RSR seeks clarification on the
definition of "processed scrap metal. " EPA's proposed '
definition of this term is as follows: "Processed scrap metal"
is scrap metal which has been manually or mechanically altered
to either separate it into distinct materials to enhance
economic value or to improve the handling of materials.
Processed scrap metal includes but is not limited to scrap metal
which has been bailed, shredded, sheared, melted, agglomerated .
(for fines, across and related materials which are not scrap
metal prior to agglomeration) or separated by metal type. EPA's
preamble discussion on this definition states that the term
"processed scrap metal" is not intended to include batteries,
spent acids, slags, dross, ashes, and sludges that have a form
dissimilar to scrap metal. RSR believes excluding these types
of materials from the definition is appropriate and consistent
with EPA's past interpretations on the RCRA regulatory
status of such materials. Provided that EPA clearly intends to
exclude such materials from the definition of "processed scrap
metal," RSR supports the proposed exemption. RSR is ..
concerned, however, that the proposed regulatory definition does
not accurately reflect this intent, particularly agglomerated
materials. Regulated entities or State agencies could construe
the parenthetical statement to mean that dross, etc., are
considered processed scrap metal. This concern is heightened by
the fact that EPA's clarification limiting the scope of the
proposed definition is contained in the preamble, and not .
clearly reflected in the proposed regulatory language. To ensure
that EPA's intent is clear in this regard. RSR recommends
that EPA revise the definition of processed scrap metal as .
follows (suggested revisions are redlined): "Processed scrap
1069
'
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metal is scrap metal which has been manually or mechanically
altered to either separate it into distinct materials to enhance
economic value or to improve the handling of materials. "
Processed scrap metal includes but is not limited to scrap metal
which has been bailed, shredded, sheared, melted, agglomerated ,
(for fines, dross and related materials which are not scrap
metal prior to agglomeration) or separated by metal type. .
"Processed scrap metal" does not include lead-acid batteries;
slags, dross, ashes, sludges, capacitors, or other
liquid-bearing material, fluff, or other non-metal residuals,
liquid metals such as mercury, or spent caustics or acids, or
distinct components separated from these materials.
RESPONSE:
i
In the preamble to the proposal, the Agency discusses materials which are not
included within the definition of excluded scrap metal. The Agency explained that "excluded
scrap metal does not include any distinct components separated from unprocessed or partially
processed scrap metal that would not otherwise meet the current definition of scrap metal." The
language in the preamble was intended to clarify that any distinct components that are separated
from the scrap metal that would not otherwise meet the current definition of scrap metal would
not meet the definition of excluded scrap metal. The language was not intended to confuse the
existing definition of scrap metal. In the January 4,1985 preamble (50 PR 614), the Agency
' defined scrap metal as bits and pieces of metal parts (e.g., bars, turning, rods, sheets, wire) or
metal pieces that are combined together with bolts and soldering (e.g., radiators, scrap
.automobiles, railroad box cars), which when worn or superfluous can be recycled. The Agency
excluded from the definition of scrap metal: secondary materials from smelting and refining
operations (e.g., slags, drosses and sludges), liquid waste containing metals (e.g., spent acid and
caustics), liquid metal wastes (e.g., liquid mercury), and metal-containing wastes with a
significant liquid component (e.g., spent lead acid batteries). In order for a material to qualify as
processed scrap metal, it must first meet the definition of scrap metal. Under today's exclusion,
the existing definition of scrap metal continues to apply. Therefore, secondary materials from
smelting and refining operation (e.g., slags, drosses, and sludges), liquid wastes containing
metals (e.g., spent acids and caustics), liquid metal wastes (e.g., liquid mercury), and metal-
containing wastes with a significant liquid component (e.g., spent lead acid batteries) do not meet
the definition of scrap metal and therefore also do not qualify as excluded scrap metal.
' 1070
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DCN PH4A055 :
COMMENTER Copper & Brass Fabricator '
RJESPONDER RE ,
SUBJECT SCRP
SUBJNUM 055, ".'''..
COMMENT The Council Supports the Agency's Proposed Exclusion of
ii Processed Scrap Metal.fifom the Definition of Solid Waste. The
| Council agrees with the Agency that processed scrap metal which
has been diverted or removed from the waste stream for recycling
is sufficiently commodity-like that regulation is not necessary.
The Council further supports the Agency's recognition that,
because of its physical qualities, processed scrap metal has not
historically contributed to the waste management problem and it
is unlikely to do so in the future.. The Agency's decision to
exclude scrap metal will further encourage the already active
beneficial recycling activities that are more analogous to _ 1
manufacturing operations than waste management. In its proposed ,
rule, the Agency cites five factors it considered in determining
whether to exclude processed scrap metal from the definition of
solid waste. The Council supports the Agency's rationale for 1
each factor and adds the following comments as they relate to
the brass mill industry: 1. The degree of processing the
material has undergone and the degree of further processing that
is required. Processed scrap metal generated from brass mill
operations must meet strict industry specifications for metal
content in order to be sold as a commodity. Shipments not
meeting these strict standards are rejected. Scrap metal -
sold as a commodity undergoes substantial processing before ;
being sourced as raw material for a fabricated product For
example, brass fines would be remelted along with other brass
scrap to be used as raw material for brass sheet 2. The
value of the material after it has been reclaimed. As
acknowledged by the Agency, scrap metal is traded both
nationally and internationally in markets. In the United ' '.. \
States, the copper is listed daily in the American Metal Market,
reporting on the metals industry, and copper brass mills is sold
at prices related to, virgin copper. For example, on April 19,
copper scrap from brass mills was priced at $117.25/lb and AMM
virgin copper cathode was priced at $ 12.9.00/lb. 3 .The
degree to which the reclaimed material is like an analogous raw
material. In the brass mill industry, the principal raw
material source is scrap metal, not virgin metal. Brass .
products (copper and zinc alloy) made from scrap are chemically
1071
i!
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and metallurgically equivalent to products manufactured from-
virgin copper and zinc. The difference in input material does
not affect the chemical composition, the physical
characteristics, or the end use of the finished brass mill
products. 4 The extent to which an end market for the
reclaimed materials is guaranteed. End markets for scrap metal
from brass mill operations are guaranteed Brass mills reuse .
their own scrap metal or sell to recyclers. Recyclers will often
further process the material and resell to the original mill
under a tolling arrangement. In other words, all metals
generated from brass mill operations are reused. With its
reduced costs and environmental benefits, the demand for scrap
.metal as a raw material source will only grow in the future thus
ensuring the availability of end markets. 5. The extent to
which a material is managed to minimize loss. Scrap metal from
brass mill operations is in a solid non-dispersible form so that
loss is minimal. Because of its commercial value, scrap metal
resulting from brass mill operations is contained in a ,
designated area with minimal handling and movement until it is
reused. This type of beneficial reuse offers minimal risk to
the environment. By recognizing that processed scrap metal is a
commodity-like material and not solid waste, the Agency is
removing a significant disincentive to recycling. The proposed
exemption will minimize the regulatory burden currently
associated with scrap metal and provide added economic and other
incentives to recycle the material. Further, the exclusion of
scrap metal from the U.S. definition of solid waste as expressed
in RCRA, would add consistency and support to the U.S. position
with respect to the ban placed on the transboundary movement of
solid wastes, some of which are recyclable materials, under the
Basel Convention. The United States has not ratified the Basel
Convention and it is unlikely to do so until it has clear
guidance from the Convention's Technical Working Group on what
recyclable materials are covered by the ban. The United States
has advanced the position that scrap metal should be excluded
from the jurisdiction of the Basel Convention. The Agency's
decision to exclude scrap metal from RCRA jurisdiction would
bring the U.S. domestic regulatory scheme in line with the
position the United States has taken internationally.
1072
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RESPONSE:
The Agency thanks the conimenter for supporting the exclusion from the
definition of solid waste for scrap metal.
1073
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DCN . PH4A055
COMMENTER .Copper & Brass Fabricator "" '..-'
RESPONDER RE .
SUBJECT SCRP
SUBJNUM 055 , , ,
COMMENT Metal bearing by-products generated from the
processing of secondary materials are commodity-like metal
bearing by-products generated during secondary materials
processing (e.g., slags, drosses, and skimmings) are currently . '
categorized by the Agency under the general category of
"characteristic by-products" under RCRA. Unlike other .
by-products in this general category, metal bearing by-products '
resulting from secondary materials processing possess high
intrinsic value and are recycled at high rates. For example,
zinc-rich baghouse dusts captured from secondary copper and
brass smelting and casting operations were marketed as
commodities long before methods to capture emissions were
required by air pollution control regulations. Like scrap metal,
metal bearing by-products, are recycled on-site as raw material
or sold to recyclers who further processes the by-product for
various applications. Further, like scrap metal, a demand
exists for secondary materials and end markets are available.'
'Thus they are more like scrap metal than by-products. Currently,
characteristic by-products when reclaimed are exempted from the
definition of solid waste under 40 CFR section 261.2 . .
(Definition of solid waste), Given the similarities between .
scrap metal and metal bearing by-products, the Council .
recommends that the Agency retain the current exemption for
. metal bearing byproducts, but provide it under 40 CFR section
261.4 (Exclusions). Although the Agency will be addressing the .
regulation of byproducts as part of its "Reengineering RCRA for
Recycling" initiative, metal bearing by-products generated from
the processing of secondary materials are commodity-like.
Therefore, consistent with this rulemaking, the Council : ,
requests that the Agency exclude metal bearing by-products under
section 261.4 rather than continue their exclusion under section
261.2.
RESPONSE: ,
*. ' \
' \ ' ,
Currently, by-products exhibiting a characteristic of hazardous waste are
excluded from the definition of solid waste when reclaimed (40 CFR §261.2). The commenter is
correct in stating that metal-bearing by-product materials generated during secondary material
1074
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processing, such as slags, drosses, skimmings, and sludges, retain the current exclusion from the;
definition of solid waste when reclaimed, the regulatory status of reclaimed by-products is
beyond the scope of this rulemaking. The Agency is in the process of addressing the regulation
of by-product materials as part of the upcoming Definition of Solid Waste rulemaking.
Finalizing the commenter's recommended revision is beyond the scope of this rulemaking and is
more appropriately addressed in the context of the Definition of Solid Waste rulemaking. In
today's final rule, the exclusion from the definition of solid waste for metal-bearing by-product
materials will remain part of the broader exclusion for by- products exhibiting a characteristic of
hazardous waste when reclaimed found at 40 CFR §261.2. . ~
1075
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DCN . PH4A056
COMMENTER Utility Solid Waste Activities Group
RESPONDER RE
SUBJECT SCRP . ^
SUBJNUM 056
COMMENT USWAG supports EPA's proposal to exclude from the
definition of solid waste processed scrap metal and shredded
circuit boards that are managed in containers. 61 Fed. Reg. at
2361 -63. This proposal is grounded in sound environmental
policy and will encourage and promote the recycling of these
waste streams. While this proposal is a step in the right .
direction, USWAG believes that the use of separate rulemakings
on a case-by-case basis is not the most efficient or productive
method for excluding recyclable waste streams from the RCRA
program. This approach involves an extraordinarily onerous and
time-consuming mechanism for advancing recycling. This is
especially true in the case of the electric utility industry,
. . which generates many secondary recyclable materials that are
more "commodity-like" than "waste-like" (e.g.., slightly
contaminated mercury that must be "cleaned up" prior to reuse),
but that nonetheless are labeled as "solid wastes" under the
current regime and are faced with market entry barriers common
to most recyclable solid wastes. As EPA itself recognizes, the
designation of a recyclable material as a "solid waste"
stigmatizes the waste stream and creates a significant deterrent
to its beneficial reuse. Id. at 2363. Attempting to remove
these barriers on a case^by-case basis through individual
notice and comment rulemakings, as is being proposed for circuit
boards, is inefficient and unnecessarily delays the commercial
. ' advantages and environmental benefits of increased recycling. A
more productive and efficient approach would be for EPA to
establish self-implementing criteria for qualifying for a
- variance from the definition of "solid waste" - i.e.,
establishing readily identifiable factors for distinguishing
between "solid waste" and "commodity-like11 secondary materials
that do not warrant "solid waste" designation - in lieu of
making such determinations through the case-by-case approach ;
under the current 40 C.F.R., §260.31 procedure. Indeed, the
very cornerstone of the RCRA program is predicated oh the
regulated community using a self-implementing procedure to
determine whether a "solid waste" is hazardous (e.g.., per 40 CFR
262.11); surely, a similar self-implementing procedure can be
used by the regulated community to distinguish between
1076
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"commodity like" secondary materials and "solid wastes." US WAG
also understands that EPA is preparing its comprehensive . ,
proposal to amend the definition of "solid waste" to'simplify ,
the requirements applicable to recycling. This effort also will
advance recycling efforts while reducing unnecessary regulatory
v burdens. US WAG urges EPA to issue this proposal as soon as ,
. possible, s
RESPONSE: > .
The Agency thanks the commenter for supporting the exclusions from the
definition of solid waste for excluded scrap metal and shredded circuit boards that are being
reclaimed or recycled. ,%
The commenter seems to be taking the position that promulgating exclusions for
recyclable materials one by one is inefficient because there are many wastes that could be /
considered to be commodity-like, and therefore should be excluded from the definition of solid
waste. The cornmenter's request is beyond the scope of this rulemaking and is better addressed
in the Definition of Solid Waste rulemaking, due to be proposed in the near future. .
1077
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DCN PH4A075
COMMENTER Recyclersof Copper Alloy
RESPONDER RE
SUBJECT . SCRP
SUBJNUM. 075
COMMENT The commercial recycling of copper alloy products has been a
. dynamic aspect of the United States economy for nearly three -
quarters of a century. RE-CAP's comments seek to ensure that
EPA and others who may review this Docket are aware of the scope "
and importance of copper alloy recycling. We do so to
underscore the concomitant importance of EPA ensuring that its
final rule continues to recognize, as appears to be intended by
the Agency, that the commodity-like nature of scrap metal
(including metal by-products) warrants exclusion from RCRA
Subtitle C jurisdiction under 40 CFR Part 261.4. In this regard,
we incorporate the comments which were filed in this Docket by
the Institute of Scrap Recycling Industries, Inc. on April 18,
1996, and by the Copper and Brass Fabricators Council, Inc. on
April 24,1996^ See also Eastman Kodak Company's April 17,
1996, comments in this Docket at 1-2, and RE-CAP's May 15,1995,
submission to the EPA Reengineering Task Force (SERVICES 212A)
concerning commodity like secondary materials. At least 4
billion pounds (2 million tons) of brass and recycled copper
alloys are recycled every year in the United States. The alloys
are recycled by a wide variety of industries.' For example,
nearly all of the brass used by the American plumbing fittings
industry comes from recycled copper alloys. The faucet you use
, today may have been made from the faucet which your grandfather
used as a child. And your faucet eventually will become the
scrap from which these and other copper alloy products are made.
More than 30 million faucets are produced annually hi the United
States. Brass and bronze .are among the oldest and most valuable ,
metal alloys known, having been employed by people for millennia
in a multitude of ways. (Brass is a mixture of copper and zinc
and bronze a mixture of copper and tin, both in vary ing
proportions.) 1,774,300 short tons of copper in scrap of all
kinds was consumed in 1994^ the last year for which complete
data is available. This is 3.55 billion pounds, and this is the
copper content of all the scrap consumed. The total tonnage of
scrap is of course higher. In 1994, scrap .supplied 47.3% of the
total copper consumed in the United States. Total consumption
. was 3,754,1 00 tons. (Copper Development Association, Copper
1 . Supply and Consumption in,the United States -1994!) Our copper
1078
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.alloy and secondary metals recycling industry is a priceless
asset While the art of alloying copper has been utilized for
thousands of years, it remained for twentieth-century America to
initiate and enjoy the many benefits of large-scale production
of high quality, dependable copper-based alloys in ingot form,
conforming to exacting specifications and offering substantial ,
economies. The primary reasons for this phenomenon center on
the increasing diversity of manufacturing and the increasing
need for conserving the Nation's resources. Each and every ton
of recycled copper alloys represents: Many tons of . .
pollution not introduced into our atmosphere; Thousands of ,
pounds of valuable metals not sent to already overburdened
landfills; Acres of land conserved and not stripped to expose
the minerals below; A substantial energy savings; and
Several more tons of ore that aren't unnecessarily mined and
refined. See also comments of institute of Scrap Recycling
Industries, Inc., Apr-. 19,1996, at n. 1. This reservoir of . '.' '
recycled copper alloy products is indeed an important part of
our national treasure. These products are essential to our .
nation's highly diversified and interdependent economy, as well
as to our national defense. Automobile radiators, free-cutting
brass rod and other machining turnings, obsolete faucets, and a
wide variety of other copper alloy scrap are collected and '
processed as part of this large U.S. secondary metals industry.,
Scrap is melted and alloyed to exacting specifications by ingot
manufacturers, brass mills and foundries in the manufacturing of
thousands of consumer, industrial and military components and
products, such as components for everyday use in: .
elevators, light switches, brass lamps, lawn sprinklers, screws
and bolts, door hinges, doorknobs, keys, and golf club heads;
Valves, faucets and other plumbing products: these are
critical to the construction and housing industry; Fire !
sprinklers and fire hydrants; Bearings: - these facilitate / ,
rotating and sliding parts with minimal friction in engines,
gears and transmissions in passenger automobiles; diesel
trucks and tractors, mining and other machinery; military
aircraft, tanks and aircraft carriers the slide along which the
aircraft launching catapult travels); Worm Wheels: they ,
are needed for RPM reduction, which conserves fuel; they
enable equipment such as hospital beds, or winches on military
vehicles, to be raised and lowered; Impellers: they . ,
provide circulation in irrigation pumps, sewage pumps, and pumps
critical to paper mills and numerous other industries; Pump
1079
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housings, pressure regulators, water meters, and other water
utility hardware; Electrical power equipment and .
transmission line hardware; and Radar wave guidance: here .
, the copper alloy's non-magnetic properties are essential.
Further perspective on copper alloy,recycling may be helpful.
By way of example, we turn to the ingot industry component of.
our coalition. The production of quality ingot metal alloys is
not. a simple melting process, but is a folly developed,
carefully supervised, and scientifically controlled refining < '
. process. When an article of copper or copper alloy, be it an
automobile radiator, a faucet, a trolley wire, a valve, a door
handle, or a ship's propeller, has served its purpose or is no
longer fit for service, it is ready to be converted into .
something useful. The ingot industry consumes more than 150 -
million pounds of automobile radiators every year, and one must
add to this the fact that the wrought industry consumes more
than 300 million pounds of scrap every year in making plumbing
fittings alone. Metal value is continually present in this
equipment, even though the equipment is no longer of value for
its original purpose. Copper has been said to be an everlasting
metal. While it does not last forever in any one form, it is
continually being recovered, refined, realloyed, reworked, and
used again. Indeed, this revolving fund of recyclable metal in ,
industry is a significant item in the total reserves of the
United States. It is in this connection that the ingot industry ,
plays its most important role.' It converts copper products mat ;
have been diverted or removed from the solid waste stream into
iiserul metal so that they again become active in industry. We ;
. hope that these comments have provided EPA and others who may , ,
review this Docket with a better understanding of recycled
copper alloy products' critical importance to manufacturing in
the United States. With this background in mind, we again urge,
EPA to ensure that its final rule continues to exclude these .
materials from RCRA Subtitle C jurisdiction.
RESPONSE: ^
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for scrap metal. In today's final rule, the Agency has expanded the
scope of the exclusion to include home scrap metal (e.g., turnings, cuttings, punchings, and
borings generated by steel mills, foundries, and refineries) and prompt scrap metal (e.g., turnings,
cuttings, punchings, and borings generated by the metal working/fabrication industries).
1080
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DCN PH4A077 . :
COMMENTER The Aluminum Association
RESPONDER RE .
SUBJECT SCRP .
.SUBJNUM 077 ._''*."
COMMENT The Aluminum Association ("Association"), in conjunction with
its member companies, is pleased to submit comments to the . *,
'above-referenced rule. The Aluminum, Association is a trade
. association founded in 1933 and comprised of seventy-six members
of the aluminum industry in the United States. Member companies
include producers of primary and secondary aluminum, aluminum
alloys, semi-fabricated wrought, cast aluminum, and related
products. These comments address two major issues: (1) EPA's
decision to exclude processed scrap metal being reclaimed frcm
the definition of a solid waste under RCRA, and (2) the merits
of affording a comparable exclusion to cover the aluminum
byproducts skims and drosses. 1. The Association supports EPA's
decision to exclude processed scrap metal from the RCRA
definition of solid waste. The Association commends the Agency
for its proposal to amend the definition of solid waste to
exclude processed scrap metal being recycled from RCRA
jurisdiction. Association members are intent on recovering
metal from aluminum products, and treat scrap metal as a
valuable commodity, which meets all criteria set by the Agency
for avoiding regulation as a waste. ,
RESPONSE:
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for scrap metal.
1081
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DCN ; PH4A077
COMMENTER The Aluminum Association
RESPONDER RE
SUBJECT SCRP ,
SUBJNUM 077 , .
COMMENT Under RCRA's current regulatory ,
- scheme, scrap metal is regulated as a solid waste. Scrap metal
is defined as "bits and pieces of metal parts or metal pieces
that are combined together with bolts or soldering, which when .
warm or superfluous can be recycled. "40CFR261.1
(c)(6). However, EPA exempted from RCRA Subtitle C regulation '.
all scrap metal being recycled. 40 CFR 261.6(a)(3)(ii).
According to EPA, this was an interim measure taken to allow the
Agency to study scrap metal management and determine whether,
regulation was necessary 50 Fed. Reg. 614,649 (Jan. 4,1985).-
The proposed regulation would change the method by which processors
of scrap metal avoid "waste11 management requirements.
Under the proposal, EPA would
specifically grant an exclusion, under 40 C.F.R. §261.4(a),
from the definition of solid waste for "processed scrap metal"
being reclaimed. The proposed rule defines "processed scrap
metal" as "scrap metal which has been manually or mechanically
altered to either separate it into distinct materials to enhance
economic value or to improve the handling of materials." 61
Fed. Reg. 2,338,2,371 (Jan. 25,1996). While the Association
, embraces EPA's exclusion of processed scrap from solid waste
regulation, it also supports the suggestion of the Institute of
Scrap RecycUng, Inc. ("ISRI") that EPA should modify its
proposal so that all scrap metal diverted or removed from the
solid waste stream and destined for recycling is excluded from
the definition of solid waste. As detailed in ISRI's comments,
unprocessed scrap removed from the solid waste stream for
recycling has the same commodity-like nature as processed scrap,
and creating an artificial distinction between the two will
create unnecessary confusion for individual facility operators.
RESPONSE:
In response to information provided by commenters, EPA identified and studied
three different types of unprocessed waste to determine whether the scope of the proposed
exclusion should be expanded: home scrap metal, prompt scrap metal and obsolete scrap metal.
Home scrap is scrap metal generated by steel mill, foundries, and refineries such as turnings,
cuttings, punchings, and borings. Prompt scr^p, also known as industrial or new scrap metal, is
1082
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. generated by the metal working/fabrication industries and includes such scrap metal as turnings*
cuttings, punchings, and borings. Obsolete scrap metal is composed of worn out metal or a metal
product that has outlived it original use, such as automobile hulks, railroad cars, aluminum.
beverage cans, steel beams from torn down buildings, and household appliances.
The Agency uses five factors when evaluating whether a partially-reclaimed
material is "commodity-like" and is not part of the waste management problem and thus is
appropriate to exclude the material from RCRA Subtitle C jurisdiction through issuance of a
variance (40 CFR §260.3 l(c)). The five factors are: 1) the degree of processing the material has
undergone and the degree of further processing that is required, 2) the value of the material after
it has been reclaimed, 3) the degree to which the reclaimed material is like an analogous raw
material, 4) the extent to which an end market for the reclaimed material is guaranteed, and 5) the
extent to which a material is managed to minimize loss. The Agency applied these five factors to;
the three categories of unprocessed scrap metal to determine if these categories meet the criteria
for "commodity-like" found at 40 CFR §260.3 l(c). , ,
' ' ' The Agency evaluated unprocessed home scrap and prompt scrap against each of
the five factors and found that these categories of scrap metal are substantially similar to
processed scrap metal due to established markets for the material's utilization, the inherent
positive economic value of the material, the physical form of the material, and the absence of
damage incidents attributable to the material, based on this analysis, the agency has expanded
the scope of the exclusion for scrap metal to include both unprocessed home and unprocessed
prompt scrap metal. ,
The Agency has not found sufficient data for evaluating unprocessed obsolete
scrap metal against the set of factors used to determine if a partially reclaimed material qualifies
for a variance from the definition of solid waste. Therefore, the Agency is not expanding the
scope of the exclusion from the definition of solid waste to include obsolete scrap metal.
Providing an exclusion from the definition of solid waste for obsolete scrap metal at this time
would be premature and is better addressed in the Definition of Solid Waste rulemaking, due to.
be proposed in the near future. , "'
1083
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DCN PH4A077 '
COMMENTER The Aluminum Association
RESPONDER. RE
SUBJECT SCRP
SUBJNUM ,077
COMMENT The Aluminum
Association urges EPA to extend the exclusion for scrap metals
to skims and drosses, aluminum processing by-products that have
commodity-like characteristics similar to scrap metal. Aluminum
skims and drosses are valuable materials and are considered an
important metal source by the aluminum industry. Because these
by-products contain fully recoverable metal, they are not
discarded or landfilled.
Skims and drosses are by-products generated as part of the
aluminum melting process. Whenever molten aluminum is exposed
to the atmosphere, a thin layer of aluminum oxide forms on its
surface. Scrap aluminum being melted is coated with aluminum
oxide. This oxide material is the starting point for
by-products derived from melting aluminum. The oxide layer
increases during stirring, transferring; fluxing or pouring
operations, and floats to the surface of the molten aluminum.
, It builds up in troughs, furnaces, and crucibles during the
casting process, and free aluminum becomes mixed and entrapped
with the oxide. "Dross," in this context, refers to a solidified
, material generally consisting of oxides of aluminum and other
alloying -materials such as magnesium, formed when molten
aluminum reacts with the atmosphere or moisture. The term
"skim" connotes an accumulation of oxide with entrapped metal,
formed on the metal surface after melting from oxide films
introduced as surface oxides on all charge components.
Skims and drosses are currently categorized
by EPA as "characteristic by-products," along with a variety of
by-product materials generated by chemical and manufacturing
industries. When reclaimed, all characteristic by-products are
exempt from the definition of a solid waste under 40 CFR
261.2. That the current broad "characteristic by-product"
category captures skims and drosses evidences the category's
failure to recognize the differences in environmental risk and
recycling rates that exists for aluminum skims and drosses as
opposed to other byproducts. Similar to scrap metal, and unlike
many other by-product materials, aluminum skims and drosses are
"commodity-like," posing little environmental risk, high
intrinsic value, and are recycled at higher rates.
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EPA has not proposed to create a similarly favorable exclusion for skims and
drosses as it has ^ : .
for scrap metal. ". . (
But, skims and drosses would continue to ' ,
be exempt, as well as all characteristic by-products, from .
, treatment as a solid waste if they were reclaimed. In its . .
1 decision to amend the definition of solid waste to exclude scrap
metal, EPA was properly guided by 40 G.F.R. 260.3 l(c). This
provision states that the Agency may grant requests for a '.
, variance from classifying as a solid waste those materials that ,
have .been reclaimed but must be reclaimed further before .
recovery is completed if, alter initial reclamation, the .
faulting material is "commodity-like." This determination
must be based on the following factors: (1) the degree of >
processing the material has undergone and the degree of further ~ .
processing that is required, (2) the value of the material . .
after it is reclaimed, (3) the degree to which the reclaimed .
material is like an analogous raw material, (4) the extent to
which an end market for the reclaimed material is guaranteed,
(5) the extent to which the reclaimed material is handled to
minimize loss, and (6) oraer relevant factors. 40 C. F. R.
. _260.3 1 (c). As detailed below, because aluminum skims and
drosses meet the criteria for recycling listed in 40 C. F. R.
, ' _260.3 1 (c), the exclusion should be extended to these
by-products as well. 1 The Degree of Processing Done to
Skims and Drosses Supports Their Treatment as Commodity Metals i
' ' , EPA has articulated the policy that the more substantial the
. initial processing, the more likely the resulting material is to .
be commodity-like. SO Fed. Reg. at 655. In the preamble to the ., ,
proposed rule, EPA noted that processed scrap metal is ^ ,
separated, melted or otherwise processed to add value or improve . ,.
handling qualities. 61 Fed Reg. at 2,362. Companies that
generate skims and drosses may recover the metal content from
. these byproducts on site or send them off-site to facilities
which are specifically designed to process these materials for r
recovery. Skims and drosses are melted and[ agglomerated,
* operations that are recognized as suitable processing. 61 Fed.
Reg. at. 2362. Indeed, these types of processing helped clear
the way for EPA's proposed treatment of scrap metal. Id. at .
2,371 (proposed 40 C. F. R. _26 1.1 (cX9)). 2.Aluminum
By-products Are Valuable Commodities The more valuable a , \ ' .
material is after initial processing, the more likely it is to / .
be commodity-like. 50 Fed. Reg. at 655. Like scrap metal,' <
1085
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skim.,; and drosses are traded nationally and internationally in
established markets for positive economic value. These
byproducts are traded, as any other commodity, under sale or
tolling contracts. The recoverable metallic content is
systematically tested and serves is the basis for pricing. As
aluminum is sold as a commodity with prices based on the London
Metal Exchange, many producers purchase scrap including aluminum
by-products as a raw material because it is less expensive than
primary aluminum. 3. Aluminum By-products Are Very Similar to
- Raw MATERIALS Used in Aluminum Production, and hi Fact, Are
Often Used as Raw MATERIALS in Aluminum Processes Under EPA
policy, if the initially-reclaimed material can substitute for a
virgin material,, for instance as feedstock, it is more likely
to be commodity-like. 50 Fed. Reg. at 655. Slums and drosses
comprise a significant portion of the current aluminum market,
and are accepted as raw materials by the secondary aluminum
processing or aluminum recycling industry. By-products are used
in lieu of virgin, metal because of their comparable performance
and substantial cost savings. Recycling of aluminum skims and
drosses is very common, and economically feasible with metal
content as low as 8 percent. Depending on the material and
processes employed, recovery rates may range up to 60 percent
and higher. ' _ -
The Aluminum Association urges EPA to extend the exclusion for
scrap metals to skims and drosses, aluminum processing
by-products that have commodity-like characteristics similar to
scrap metal. Aluminum skims and drosses are valuable materials
and are, considered an important metal source by the aluminum
industry. Because these by-products contain fully recoverable ,
metal, they are not discarded or landfilled.
Skims and drosses are by-products generated
as part of the aluminum melting process. Whenever molten
aluminum is exposed to the atmosphere, a thin layer of, aluminum
oxide forms on its surface. Scrap aluminum being melted is
coated with aluminum oxide. This oxide material is the starting
point for by-products derived from melting aluminum. The oxide
layer increases during stirring, transferring, fluxing or
pouring operations, and floats to the surface of the molten
aluminum. It builds up in troughs, furnaces, and crucibles
during the casting process, and free aluminum becomes mixed and
entrapped with the oxide. "Dross," in this context, refers to a
solidified material generally consisting of oxides of aluminum
and other alloying -materials, such as magnesium, formed when
1086
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molten aluminum reacts with the atmosphere or moisture. The
term "skim" connotes an accumulation of oxide with entrapped
metal, formed on the metal surface after melting from oxide
films introduced as surface oxides,on all charge components.
Skims and drosses are currently categorized
by EPA as "characteristic by-products", along with a variety of
by-product materials generated by chemical and manufacturing
industries.. When reclaimed, all characteristic by-products are
exempt from the definition of a solid waste under 40 C. F. R.
261.2, That the current broad "characteristic by-product"
category captures skims and drosses evidences the category's ,
failure to recognize the differences in environmental risk and
recycling rates that exists for aluminum skims and drosses as
opposed to other byproducts. Similar to scrap metal, and unlike
many other by-product materials, aluminum skims and drosses are
"commodity-like," posing little environmental risk, high
intrinsic value, and are recycled at higher rates. Companies
that generate skims and drosses may recover the metal content
from these byproducts on site or send them off-site to
facilities which are specifically designed to process these
materials, for recovery. Skims and drosses are melted and ,
agglomerated, operations that are recognized as suitable
processing. 61 Fed. Reg. at 2362. Recycling of aluminum skims
and drosses is very common, and economically feasible with metal
content as low as 8 percent Depending on the material and
processes employed, recovery, rates may range up to 60 percent
and higher. 4.1 Guaranteed End-markets Exist for Skims and
Drosses at Domestic and International Smelters, Mills and
. Foundries Again, skims and drosses are commodity-like because,
in. fulfillment of EPA criteria, there are existing and
guaranteed end-markets for the initially-reclaimed material. SO
Fed. Reg. at 655. In 1994, the US aluminum industry generated
approximately 970 million pounds of skims and drosses.
. Approximately 177 million pounds were reclaimed on site, while
an estimated 773 million pounds went off-site for reclamation.
On a facility-specific basis, one company processed 170 million
pounds of aluminum by-products which it generated, sending other
volumes off-site for further processing to companies which toll
or specialize in aluminum by-product recovery. One Such
recovery facility processed 200 million pounds of by-products,
at an average recovery rate of 60 percent The facility then
returned the recovered metal to its customers. The
commodity-like nature of skims and drosses is also evidenced in
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a healthy import/export market. The U.S. exports approximately
10.4 million pounds of aluminum by-products annually, while
aluminum companies import 30 million pounds of aluminum
byproducts per year. As a result of the lower capital and
operating costs of using scrap metal and aluminum by-products, .
versus virgin material, the import/export market is expected to ,
continue to grow. 5. Aluminum By-products Are Managed To
Minimize Loss and Release to the Environment Like scrap metal,
skims and drosses are processed to minimize loss and to maximize
recoveries of aluminum metal, again satisfying EPA's criteria
for characterizing a material as commodity-like because of the
care with which it is handled. 50 Fed. Reg. at 655. Because.
the industry treats these materials as commodities, it strives
to recover all the metal content feasibly recovered from
aluminum by-products. While economic incentives ensure that the
potential for releases to the environment of these materials is
low, recyclers also practice responsible and environmentally
safe operating procedures. Processors prevent losses to the
environment for the most part by keeping the material covered
and dry, forestalling any potential losses due to potential
reactivity with water. Furthermore, there has been an absence
of damage incidents attributable to skims and drosses.
The Aluminum Association recommends
that EPA to adopt the Institute for Scrap Recycling's suggested
rule language regarding metal-bearing by.-products, which
states: 261.4 Exclusions (a)( 17) Metal-bearing
by-products from secondary materials processes that are being
reclaimed. The Association cites the discussion above regarding
the commodity-like nature of skims and drosses as compelling
evidence that, as least regarding these aluminum by-products,
the suggested exclusion is justified. ,
The Aluminum Association supports EPA's decision to exclude
processed scrap metal being reclaimed from the definition of a
solid waste under RCRA. EPA based this determination on an
examination of factors showing the commodity-like nature of
processed scrap. Because me aluminum by-products skims and '
drosses also pass this test, the exclusion should be extended to
these by-products as well. For similar reasons, the Association
supports ISRJ's position that the scrap metal exclusion should
also apply to unprocessed scrap that has been removed from the
solid waste stream so it may be recycled. For similar reasons,
the Association supports ISRI's position that the scrap metal
exclusion should also apply to unprocessed scrap that has been
1088
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removed from the solid waste stream so it may be recycled. '
RESPONSE:
Currently, by-products exhibiting a characteristic of hazardous waste are
excluded from the definition of solid waste when reclaimed (40 GFR §261.2). Usually, metal-
bearing by-product materials generated during secondary materials processing, such as slags,
drosses, skimmings, and sludges, retain the current exclusion from the definition of solid waste
when reclaimed. The commenter asserts that skims and drosses have low environmental risk,
possess high intrinsic value, and are recycled at high rates, therefore appearing to be similar to
scrap metal. Therefore, the commenter recommends that these materials be distinguished from
other by-products by providing a separate exclusion under 40 CFR Part 261.4(a) for metal
bearing by-products when reclaimed. At this time, the Agency is in the process of addressing
regulation of by-product materials as part of a separate rulemaking on the Definition of Solid
Waste. Finalizing the commenter's recommended revision to the definition of solid waste for
metal-bearing by-products is beyond the scope of this rulemaking and is more appropriately
addressed in the context of the Definition of Solid Waste rulemaking. The exclusion from the
definition of solid waste for metal-bearing by-product materials will remain part of the broader
exclusion for by-products exhibiting a characteristic of hazardous waste when reclaimed.
/
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DCN . PH4A080
COMMENTER Molten Metal Technology
RESPONDER RE , '
SUBJECT SCRP . ' . '
SUBJNUM 080
COMMENT MMT supports both of these
proposed exclusions. In certain applications, MMT's Catalytic
Extraction Process (CEP) produces a processed metal product from
metal-bearing secondary materials. We have historically been,
-. able to sell this product produced at our Fall River Facility to
s metal brokers at a price of $50-100 per ton. We expect metal
product from our commercial operations to be considerably more
valuable. In any event, we believe the Agency's reasoning in
developing the proposed exclusion is sound: this material has a
relatively high value that minimizes the chance of or incentives
for mismanagement, there are well established markets for the
product, and it is a benign material not associated with .
environmental insults. MMT is actively exploring the potential
for using CEP to recover valuable products from circuit boards.
The State of California's Department of Toxic Substances Control
(DISC.) is currently evaluating CEP performance data for
processing such material under the auspices of the DISC.'s
Technology Certification Program. We agree- with the Agency's
rationale for proposing to exclude shredded circuit boards from
the definition of solid waste. In this case, the Agency has ,
proposed a conditional exclusion for shredded circuit boards
destined for metal recovery based on management of the shredded
circuit boards in containers. We agree that, such materials are
managed more like materials in commerce than wastes. MMT also
urges EPA to recognize and understand the broad principles
underlying these specific proposed exclusions, i.e., that it is
possible and desirable to develop exclusions from the definition
of solid[ waste based on the commodity-like nature of certain
materials (e.g., processed, scrap metal) and/or the management
of the material (e.g., shredded circuit boards in containers
destined for recycling). We note the Agency has also opted this
approach elsewhere in this proposal, and in other recent
rulemaking proposals (e.g., contingent management options for
recycling in the petroleum rule, conditional exclusion for
product-like synthesis gas in the MACT rule for combustors). We
believe the opportunities for this kind of creative
encouragement of environmentally sound recycling are virtually
unlimited, and urge the Agency to work to identify and implement'
1090
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such opportunities in all its rulemaking activities. ; .
RESPONSE: ,'...- ,
"'(",.." ' ' ".' ' . ' . ' .
. The Agency thanks the commenter for supporting the exclusions from the
definition of solid waste for excluded scrap metal and shredded circuit boards.
r I
1091
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DCN :PH4A082 . ; '
COMMENTER Horsehead Resource Development
RESPONDER RE >
SUBJECT SCRP
SUBJNUM 082
COMMENT HRD supports the exclusion of processed scrap metal from
the definition of solid waste.
RESPONSE:
The Agency thanks the commenter for supporting the exclusion from the
definition of solid waste for excluded scrap metal. In today's final rule, the Agency has expanded
the scope of the exclusion to include home scrap metal (e.g., turnings, cuttings, punchings, and
borings generated by steel mills, foundries, and refineries) and prompt scrap metal (e.g., turnings,
cuttings, punchings, and borings generated by the metal working/fabrication industries).
1092
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DCN . PH4A083 ,
COMMENTER Electronics Industries Assn
RESPONDED RE
SUBJECT,v SCRP ,
SUBJNUM 083 - i
COMMENT EIA's comments do not address the entire proposal, but instead
are confined to the matters addressed in "Part Two: Other RCRA
Issues." Specifically, we express our support for the proposal
by the U.S. Environmental Protection Agency ("EPA" or "the
Agency") to revise the regulatory definition of "solid waste" to
exclude processed scrap metal and shredded circuit boards. We
also suggest a number of ways in which the proposal could be
improved.
RESPONSE: ,
The Agency thanks the commenter for supporting the exclusions from the
definition of solid waste for excluded scrap metal and shredded circuit boards.
1093
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-DCN PH4A083
COMMENTER Electronics Industries AS
RESPONDER RE /
SUBJECT SCRP
SUBJNUM 083
COMMENT EIA Supports the Proposed Revisions to the Definition of
"Solid Waste" Our members are interested in the current proposal
because of its potentially beneficial impact on the cutting-edge
product return, disassembly, and recycling programs developed in
the electronics industry. EIA members have devised innovative
means of designing products to facilitate their re-use,
. refurbishment, and recycling. Many of these programs, however,
are impeded by the operation of EPA regulations. Some companies
are discouraged from recycling electronic products and
components because of the regulatory uncertainty surrounding
aspects of these programs. For example, the Agency's
regulations are unclear concerning whether these products are
1 classified as "waste" and whether product disassembly programs
are subject to regulation. As a result, some companies are
deterred from implementing and/or expanding these programs
became of the uncertainty as to whether they must comply with
the burdensome reporting and record keeping, permit, and other
requirements associated with the management of solid and
hazardous waste. For this reason, we applaud the initiative of
the Agency to propose to modify the definition of "solid waste" "
under the Agency's regulations promulgated pursuant to the
Resource Conservation and Recovery Act (RCRA) to exclude
processed scrap metal and shredded circuit boards. Metal and
circuit boards are common elements of electronic products, and
excluding these items from RCRA jurisdiction will likely advance
the Agency's and the industry's common goals in encouraging the
recycling of electronic products. The proposal will facilitate
sound recycling practices, and thus further a key goal of RCRA:
to promote the protection of health and the environment and .to
- conserve valuable material and energy resources by... (6)
minimising the generation of hazardous waste and the land
; disposal of hazardous waste by .encouraging process substitution,
materials recovery, properly conducted recycling and reuse, and
treatment " RCRA section 1003 (a)(6), 42 U. S. C. section
6902(a)(6). We fully agree with the Agency that processed scrap
metal and shredded circuit boards are more "commodity-like" than
"waste-like," and that these items have not contributed to the
solid waste disposal problem. Unlike other materials, used
1094
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electronic products are not necessarily "waste" when they are :
removed from service by a particular customer. These items may
be re-used in their entirety, or components or parts can be
re-used, rebuilt, or recycled, and therefore these products are
potentially valuable commodities with a strong market for these
materials. Their value results in their handling in a manner . -.?'.
that is protective of the environment .The Agency states that
it reached this conclusion based on a review of the literature,
databases, and consultation with the Bureau of Mines, and
therefore it appears that their is ample support in the record
, to justify this conclusion. EIA would be happy to provide EPA
with additional information if the Agency finds it necessary.
While we fully support the Agency's proposal, we believe that
-. the final rule should be improved in a number of respects, and
we add the following comments. . .
RESPONSE
' The Agency thanks the commenter for supporting the exclusions from the
definition of solid waste for excluded scrap, metal and shredded circuit boards.
1095
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DCN PH4A083
COMMENTER Electronics Industries As
RESPONDER RE
SUBJECT SCRP
SUBJNUM 083
COMMENT Processed Scrap Metal EIA supports the Agency's
proposal to exclude processed scrap metal from the definition of
solid waste. We believe that this approach will provide greater
regulatory certainty and remove some regulatory burden, thereby
facilitating the recycling of scrap metal. Nonetheless, we
suggest the following revisions to the portion of the proposal
applicable, to scrap metal. A. The Regulatory Exclusion Should
Extend to Unprocessed Scrap Metal Being Sent to a Recycling
Facility, Not Only Scrap Metal Already Processed by a Recycler
The Agency's proposal "is restricted to scrap metal which has
been processed by scrap metal recyclers to be traded on-
recycling markets for further reprocessing into metal end
products:" 61 Fed. Reg. at 2361; This restriction unduly
narrows the application and benefit of the proposal. The logic
of excluding scrap metal processed by a recycler should also
extend to scrap metal being sent to a recycler. After all, both
materials are defined for recycling and are managed as such. As '
the court stated in American Mining Congress,, v. EPA, 824 F.2d
1177,1 190 (D.C. Cir. 1987), "EPA's authority [extends] only to
materials that are truly discarded, disposed of, thrown away, or
abandoned." Scrap metal from electronic products destined for
recycling should be excluded from the definition of solid waste
' because such materials are potentially valuable commodities that
are hot "discarded, disposed of, thrown away, or abandoned. "
This approach also produces anomalous results that make little
sense. Under the Agency's approach, material sent to a scrap
recycler is a RCRA-exempt solid waste, and the scrap recycler
subjects it to processing that transforms it into a material
that is not a solid waste. The reasons why such a distinction
is necessary or appropriate are unclear, and it is also unclear
how this regulatory transformation occurs. The Agency states
that "materials generated from the recycling of unprocessed
scrap were mismanaged and have historically contributed to the
waste management problem," such as batteries, ash, and other
residuals. 61 Fed. Reg. at 2362. Simply because materials
generated from the recycling of scrap, such as ash and
residuals, may be classified as a solid waste does not
necessarily mean that the unprocessed scrap itself is also a
1096
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solid waste. We suggest that EPA revise the proposal to extend .
the exclusion to all scrap being recycled, regardless whether it ,." .
has already been processed by a recycler. Because of its
physical form, and the manner in which it is handled, , -
unprocessed scrap from electronic products that is destined for
recycling poses no risks to human health and the environment.
The Agency should reconsider its approach. B. The Exclusion ,
Should Apply to Scrap Metal Being "Recycled" The Agency needs to
revise and clarify the regulatory language concerning the
exclusion for scrap metal. The preamble to the proposal refers
to the exclusion applying to processed scrap metal being
"recycled." See, e.g., 61 Fed. Reg. at 2361 ("The Agency
proposes to amend the definition of solid waste by excluding
processed scrap metal being reacted from RCRA jurisdictions)
(emphasis added). The proposed regulatory language, however, '
refers to processed scrap metal being "reclaimed." See 61 Fed.
Reg. at 23 72 (proposed section 261.4(a)(I 3)). EPA should
revise the proposed regulatory language to ensure that the final
rule makes it clear that the exclusion for scrap metal applies
to materials that are "recycled." As EPA is aware, the
regulatory definition of the terms "recycled" and "reclaimed"
are distinct, with the term "reclaimed" being a subset of the
term "recycled." EPA's regulations state that a material is
"recycled" if it is "used, reused, or reclaimed." 40 C.F.R.
section 261.2(aX7). A material is "reclaimed" if it is
"processed to recover a usable product, or if it is regenerated.
Examples are recovery of lead values from spent batteries and
regeneration of spent solvents." 40 C.F.R. section 261.2(a)(4). "
Thus, under the proposal it is possible that processed scrap
metal being recycled by means other than reclamation might be
interpreted as falling within the definition of solid waste. To
avoid this unintended result, the Agency should revise proposed
section 261.4(a)(13) to refer to "processed scrap metal being
recycled. 111. Shredded Circuit Boards We support EPA's
proposal to exclude shredded circuit boards from the definition
ofsolidwaste. Furthermore, it is appropriate that the Agency
has provided flexibility to industry in determining the manner
in which such shredded circuit boards are handled. We believe
that the Agency is correct in setting forth a broad performance,
standard the material must be "stored in containers prior to
recovery that are sufficient to prevent a release to the
environment" ~ rather than mandating compliance with precise,
inflexible specifications concerning me handling of shredded .
1097
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circuit boards. The Agency, however, should go further with
regard to used whole circuit boards. Under the proposal, the - . %
Agency announces that it will revise the definition of solid
waste as applied to shredded circuit boards, but that used whole
circuit boards will retain its existing regulatory status as
exempt (but not excluded) scrap metal. See 61 Fed. Reg. at
2363. As the basis for this approach, EPA refers to a 1992 ;
guidance memorandum ~ an apparent reference to the Memorandum
of Sylvia K. Lowrance, Office of Solid Waste, "Regulatory Status
of Printed Circuit Boards" (Aug. 26,1992). EPA should use this . ,
opportunity to clarify the regulatory status of used whole
circuit boards and thereby promote the sound recycling of these
materials. At minimum, the Agency should formalize the current
, interpretation expressed in the 1992 Lowrance memorandum. EPA
guidance memoranda are constantly subject to reinterpretation
and possible revision, but a regulation would provide further
clarity and certainty concerning this issue. Accordingly, the
final rule should include regulatory language specifying that
used whole circuit boards are included within the meaning of
scrap metal for purposes of the exemption from regulation as
hazardous waste. The Agency should also specify that used whole
circuit boards destined for recycling are excluded from the
definition of solid waste as scrap metal being recycled. As
stated above, scrap metal destined for recycling should not be .
... considered as ''solid waste," and used whole circuit boards (as
a type of scrap metal) should also receive the benefit of that .
exclusion. It makes little sense to classify shredded circuit
, boards as an excluded non-waste while subjecting used whole
circuit boards to an exempt solid waste status.
RESPONSE: ,
The commenter raised several different issues in this comment: the role of scrap
metal recyclers in the exclusion; the possibility of excluding unprocessed scrap metal from the
definition of solid waste; the use of the term "recycled" rather than "reclaimed" in the text of the
exclusions; and a request for clarification of the regulatory status of whole circuit boards.
In regard to EPA's use of the term "scrap metal recycler" in the proposed rule,
the Agency agrees with the commenter that the language in the preamble could lead to the
conclusion that scrap metal does not qualify for the exclusion until it is processed by a scrap
metal recycler. The language in the proposal was not intended to limit the exclusion hi this way.
In today's final rule, the Agency clarifies that the exclusion for processed scrap metal being
recycled applies to scrap metal that has undergone a processing step (as defined in the preamble
. to the proposed rule) regardless of who does the processing. In other words, a processing step ,
1098
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may be performed by the generator, an intermediate scrap handler (e.g., broker, scrap processor),
or a scrap recycler. Once the scrap metal has undergone a processing step, it may qualify for the
exclusion for excluded scrap metal. ,..;'-
The commenter also suggested that the Agency expand the exclusion from the
.definition of solid waste for scrap metal to include unprocessed scrap metal. The commenter
asserts that the five factors that EPA used to evaluate whether processed scrap metal is
commodity-like under 40 CFR §260.31 apply equally to unprocessed scrap metal being recycled.
In response to information provided by commenters, EPA identified and studied three different
types of unprocessed scrap metal to determine whether the scope of the exclusion should be
expanded: home scrap metal, prompt scrap metal and obsolete scrap metal. Home scrap is scrap
metal generated by steel mills, foundries, and refineries such as turnings, cuttings, punchings, and
borings. Prompt scrap, also known as industrial or new scrap metal, is generated by the metal
working/fabrication industries and includes such scrap metal as turnings, cuttings, punchings,
and borings. Obsolete scrap metal is composed of worn out metal or a metal product that has
outlived it original use, such as automobile hulks, railroad cars, aluminum beverage cans, steel
beams from torn down buildings, and household appliances.
The Agency uses five factors when evaluating whether a partially-reclaimed
material is "commodity-like" and is not part of the waste management problem and thus is
appropriate to exclude the material from RCRA Subtitle C jurisdiction through issuance of a :
variance (40 CFR §260.3 l(c)). The five factors are: 1) the degree of processing the material has
undergone and the degree of further processing that is required, 2) the value of the material after
it has been reclaimed, 3) the degree to which the reclaimed material is like an analogous raw
material, 4) the extent to which an end market for the reclaimed material is guaranteed, and 5) the
extent to which a material is managed to minimize loss. The Agency applied these five factors to
the three categories of unprocessed scrap metal to determine if these categories meet the criteria
for "commodity-like" found at 40 CFR §260.3 l(c).
The Agency evaluated unprocessed home scrap and prompt scrap against each of
the five factors and found that these categories of scrap metal are substantially similar to
processed scrap metal due to established markets for the material's utilization, the inherent
positive economic value of the material, the physical form of the material, and the absence of *
damage incidents attributable to the material, based on this analysis, the agency has expanded
the scope of the exclusion for scrap metal to include both unprocessed home and unprocessed
prompt scrap metal. . '
The Agency has not found sufficient data for evaluating unprocessed obsolete
scrap metal against the set of factors used to determine if a partially reclaimed material qualifies
for a variance from the definition of solid waste. Therefore, the Agency is not expanding the
scope of the exclusion from the definition of solid waste to include obsolete scrap metal.
Providing an exclusion from the definition of solid waste for obsolete scrap metal at this time'.
would be premature and is better addressed in the, Definition of Solid Waste rulemaking, due to
be proposed in the near future. . .
The commenter also raised the issue of using the term "recycled," instead of
"reclaimed" in the language of the excluded scrap metal exclusion. The Agency agrees that the
1099
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exclusion should have been written with the term "recycled," and has changed the language in
the final rule. . .
EPA disagrees with the commenter's assertion that it does not make sense to
exclude shredded boards from the definition of solid waste.while leaving whole boards within the
definition of-solid waste, even though whole boards are exempt from regulation as a hazardous
waste. Whole used circuit boards are less commodity-like than shredded circuit boards because
whole used boards are harder to assay, more difficult to handle and may contain proprietary
information of generator and manufacturers. In addition, EPA notes that since 1992, used whole
boards are currently classified as scrap metal and therefore when recycled are completely exempt
from RCRA regulatory requirements. Therefore, no RGRA regulatory, requirements such as
manifesting, export or storage permit requirements currently operate as disincentives to
environmentally sound recycling of these materials. The exclusion from RCRA jurisdiction for
used shredded circuit boards is necessary only because they do not qualify for the definition of
scrap metal and thus may be subject to RCRA regulatory requirements that may serve as
disincentives to their recovery. EPA also believes that because whole used circuit boards are
classified as scrap metal, that excluding whole used boards from the definition of solid waste is
not necessary to ensure environmentally sound recovery of these materials and would be
confusing to the Agencyls current definition of scrap metal.
1100
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DCN PH4AL05
COMMENTER Association of Battery Recyclers , '
RESPONDER RJE
SUBJECT SCRP : -x .
SUBJNUM . '
COMMENT EPA has proposed to exclude "processed scrap metal"
from the RCRA definition of solid waste. The ABR understands
from EPA's preamble discussion of this issue that the proposed ' . .
term "processed scrap metal" would not include batteries, spent
, acids, and process secondary materials such as slags aiid.drosses . .
. and would not include any'"distinct components separated from
unprocessed or partially processed scrap metal that would not
',- otherwise meet the current definition of scrap metal. .
Historically, the Agency has excluded the foregoing materials
from the regulatory definition of "scrap metal." The ABR
- understands that EPA has defined the term "processed scrap
metal" as a subset of scrap metal. In other words, materials , ' ,
that would not be considered "scrap metal," as that term '- '
currently is interpreted by EPA, would likewise not be
considered "processed scrap metal." Based oh the foregoing, the
ABR interprets the proposed definition of "processed scrap
metal" to specifically exclude spent lead acid batteries, . . . \
battery components, and any lead bearing materials generated by . .
the separation (e.g., breaking), reclamation and/or recycling of
spent or off-speculation lead-acid batteries and other ' ,
lead-bearing materials. The definition also would exclude any ..
process secondary materials generated by the lead reclamation .
1-1 and/or recycling process. Accordingly, any of the above
materials that currently are regulated as "solid waste" under
RCRA, woiUd continue to be so regulated. Assuming that the above
interpretation of EPA's proposal is accurate, the ABR has no
: objection to excluding "processed scrap metal" from the _ f
definition of solid waste. However, to the extent that the .
proposal purports to expand the definition of "scrap metal" to /
include materials not currently encompassed by that definition,
such intent is not apparent and the proposed rule does not
, affoKl adequate notice or opportunity for comment
RESPONSE: . ' '' ;- '. '" --'_'.*'..-' ' '
The commenter requests clarification that scrap metal that contains components
such as batteries or mercury switches, which do not meet the current definition of scrap metal,
.also do not meet the definition of processed scrap metal in the proposal. In the preamble to the
1101
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proposal, the Agency discussed materials which are not considered processed scrap metal. The
Agency explained that "processed scrap metal does not include any distinct components
separated from unprocessed or partially processed scrap metal that would not otherwise meet the,
current definition of scrap metal." The language in the preamble was intended to clarify that any
distinct components that are separated from the scrap metal that would not otherwise meet the
current definition of scrap metal would not meet the definition of processed'scrap metal. The
language was not intended to confuse the existing definition of scrap metal. In the January 4,
1985 preamble (50 FR 614), the Agency defined scrap metal as bits and pieces of metal parts
(e.g., bars, turning, rods, sheets, wire) or metal pieces that are combined together with bolts and
soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous
can be recycled. The Agency excluded from the definition of scrap metal: secondary materials
from smelting and refining operations (e.g., slags, drosses, and sludges), liquid waste containing
metals (e.g., spent acid, and caustics), liquid metal wastes (e.g., liquid mercury), and metal-
containing wastes with a significant liquid component (e.g., spent lead acid batteries). In order
for a material to qualify as processed scrap metal, it must first meet the definition of scrap metal.
Under today's exclusion, the existing definition of scrap metal continues to apply. Therefore,
secondary materials from smelting and refining operation (e.g., slags, drosses, and sludges),.
liquid wastes containing metals (e.g., spent acids, and caustics), liquid metal wastes (e.g., liquid
mercury), and metal-containing wastes with a significant liquid component (e.g., spent lead acid
.batteries) do not meet the definition of scrap metal and therefore do not qualify as processed
scrap metal.
1102
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DCN : PH2A003. .
COMMENTER The Penta Task Force .
RESPONDER JLABIOSA
SUBJECT WOOD1 ! ;
SUBJNUM' 003 ,.
COMMENT The Penta Task Force strongly supports the proposal to set a
1 technology-based standard for F032 waste as an alternative to a
treatment standard based on numerical dioxin/furan limits. As
. explained in our comments on the August, 1995 Phase IV LDR .'
. proposal, numerical limits for dioxin and furan constituents of ' ;
F032 waste will raise treatment costs to prohibitive levels,
will foreclose the only practicable avenue for treatment
thermal treatment in combustion units that are subject to '
subtitle C standards, and is inconsistent with EPA's past
regulation of other similar chlorinated waste that contain ~
dioxins and furans (i.e.,;F024 waste). See Comments of the Penta
, .Task Force on EPA's Proposal To Set Treatment Standards Under.
the Land Disposal Restrictions ("LDR") Program for ;
Chlorophenolic Wastes from Wood Preserving Operations (November
20,1995) (hereinafter "Penta Task Force November 20,' 1995
Comments"). .Of the three options offered in the Notice, the
Penta Task Force strongly favors Option 1 - a CMBST standard
because it provides a substantial number of facilities that
could manage F032 waste in an environmentally-sound manner. The -
Penta Task Force also recognizes that Option 3, which provides
for combustion in RCRA-permitted facilities, would provide some
increase in the number of combustion facilities that would
accept F032 wastes and, thus, is far preferable to the proposed
dioxin/ruran limits. We do not believe that Option 2, which '.
would require combustion facilities to certify compliance with
the proposed Maximum Achievable Control Technologies ("MACT")
dioxin/fiiran emission standard of 0.2 ng/DSCM TEQ in advance of.
its final promulgation, is practicable. And finally, the Penta , .
Task Force does not believe that any change to the existing F024
treatment standard is warranted. Indeed, selection of Option 1
- a CMBST standard - would subject both F032 and F024 waste to '
the same standard and has the advantage of requiring no re vision
to the F024 standard. Our specific comments on each of the
proposed alternative treatment options for F032 waste are set .
forth below. 1. TREATMENT OPTIONS A. Option 1 - CMBST Standard. (
Option 1 would allow combustion ("CMBST") of.F032 waste in high
temperature organic destruction technologies, such as combustion
' in incinerators, boilers, or industrial furnaces operated in
1103
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.accordance, with applicable RCRA requirements. See 40 C.F.R.
268.42 (Table 1). The CMBST standard is listed as a treatment
standard for numerous hazardous waste codes, and reflects EPA's
recognition that combustion technologies generally are capable
of effectively treating complex organic waste streams. The CMBST
standard also is permitted for the treatment of a number of
chlorinated organic wastes classified as "toxic" under RCRA, and
thus is fully appropriate for F032 waste which shares the same
classification under RCRA. In short, a CMBST standard for F032
waste would allow the waste to be treated in a variety of
combustion practices without compromising health or the
environment. B. Option 3 -- CMBST In RCRA-Permitted Devices..
The Penta Task Force recognizes that Option 3, which provides
for combustion in RCRA-permitted facilities, would increase the
number of combustion facilities that would accept F032 waste
and, thus, is by far preferable to the proposed dioxin/furan
treatment standard. Option 3 also would fully satisfy the LDR
criteria as an appropriate treatment standard. Indeed, EPA's
August, 1995 proposal was predicated on the finding that
incineration is the best demonstrated available treatment
("BDAT") for dioxins/furans in F032 waste. And EPA has
,oft-stated that various types of incineration have been
demonstrated to treat high and low level dioxin/furan
constituents in a variety of organic wastes to levels below
detection limits in incineration residues. Option 3 thus would
ensure that F032 waste is treated by BDAT technology without the
attendant stigma and capacity shortfall problems that would
result from setting dioxin/furan numerical limits in the
treatment residue. Although Option 3 is preferable to setting
dioxin/furan numerical limits, we do not believe there is a
regulatory justification for limiting the treatment standard to
permitted combustion devices only. As recently as April, 1996,
EPA has amended the treatment standards for the various waste
codes that were previously subject to an incineration (INCIN)
standard to allow combustion in all hazardous waste
incinerators, boilers and industrial furnaces under the new .
treatment code CMBST. See 61 Fed. Reg. 15,566,15,601-15,653
(April 8,1996). EPA has offered no justification for retreating
from that decision now in the case of F032 (and perhaps F024)
wastes. Under either option Option 1 or Option 3 the
number of treatment facilities that would accept F032 wastes
would be greatly expanded. The Penta Task Force believes that
all options being considered by the Agency are fully protective
1104
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of health and safety and, thus, consideration of practicability
and cost should drive the selection of the appropriate treatment
option. ' , . . ' - . . .
[Note: Text has been cut and appears in other codes. ]
^ ' \
In sum, the.Penta Task Force strongly supports the
proposal to set an alternative technology-based standard for
F032 waste. We favor Option 1 - the CMBST standard - but
recognize that Option 3 - CMBST in.RCRArpermitted facilities - .
will increase the number of combustion facilities that will , ,
'accept F032 wastes. We believe that Option 2--CMBST with a
proposed MACT dioxin/furan emission standard is impracticable. '.
If the Agency is inclined to reject Option 1, then it should
adopt a modified standard based on both Options 2 and 3 ~ a
standard that would allow treatment in combustion units that are .
eimer RCRA-pennitted or mat comply with the final MACT . ,
standard as promulgated in order to ensure that combustion units :
other than those that are RGRA-permitted will be able to accept ,
F032 waste once the final MACT is promulgated. / ;' ' '
RESPONSE . ,
F032 and F024 are.toxic wastes listed under the 40 CFR 261, Part D and the
combustion of these wastes is currently allowed in combustion devices that meet a four 9's .
Destruction Removal Efficiency performance. The Penta Task Force has asked EPA to adopt
the same compliance treatment standard of combustion' currently applicable .to F024. Adoption
of .CMBST would waive the monitoring of D/F constituents in F032 residues resulting from wall
designed and well operated combustion .devices. EPA codified such treatment compliance
alternative as incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule
see 55 FR 22580-1, June 1,1990). EPA later amended the standard to a CMBST standard in
the Phase 3 rulemaking. EPA believes'that the suggestion has merit, provided combustion occurs
in devices that can assure destruction of these hazardous constituents. Units subject to standards .
establishing CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in
the preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators
that have demonstrated good combustion efficiency. (See also, Final BDAT Background
Document for Wood Preserving Wastes F032, F034, arid F035, April 15,1997.) EPA is adding
this standard in the final rule, and also is amending the standard for F024 to conform to a
CMBST standard that requires operation under Part 264 incineration or Part 266 BIFs..
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
1105
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the environment. >
v
The Agency acknowledges that ensuring the combustion device operates under
good combustion conditions (i.e., either under a DRE standard,or by limiting CO/HC levels in
stack gas) may not necessarily ensure control of PCDD and PCDF emissions. However, under
existing omnibus permit authority, permit writers can prescribe on a case-by-case basis, operating
requirements that can ensure appropriate combustion performance for the treatment of hazardous
wastes (See 40 CFR 264;345(a) and 266.102(e)(2)). This authority has been invoked frequently
to justify controls oh permitted hazardous waste incinerators which controls are more stringent
than those explicitly authorized by the regulations in 40 CFR Part 264 Subpart O. EPA believes
that these authorities can be used to minimize threats to the human health and the environment
that may arise from the combustion of F032 and F024:
EPA agrees with,that well designed and well operated interim units operated
. under 266 qualify for the proposed alternative CMBST compliance standard. Virtually all
hazardous waste incinerators have already been issued RCRA permits and thus have
demonstrated compliance with the DRE performance standard that ensures destruction of toxic
organics in the waste feed. In addition, RCRA regulated boilers and industrial furnaces are
subject to substantive interim status combustion controls that limit CO/HC levels in combustion
gases, ensuring that the devices operate under good combustion conditions, and can include
explicit control of PCDD and PCDF under specified conditions .(see section 266.103(c)(l)).
' x
Other cornmenters to the NOD A presented persuasive comments that the ,
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under interim standards of 266. EPA is persuaded
that such units often meet more stringent standards than those imposed on 264, incinerators.
EPA has also determined that ad hoc technological controls can be imposed, if needed, to ensure
that the combustion of F032 and F024 in 266 units are conducted in a well designed and well
operated combustion device. As a result, EPA has revised suboption 3 to expand the availability
of the proposed combustion "CMBST" treatment compliance alternative to include those units
regulated under either 266 or 264.
After reviewing public comments, EPA concurs with the comrnenter that .
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
the MACT standards at this time may impose an undue burden on the industry. EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, ad hoc technological controls can be issued to ensure that the
treatment of these wastes is conducted in well designed and well operated combustion devices.
In the interim, EPA is relying on RCRA Omnibus permit writer authorities to address potential
concerns with regard to the implementation of this promulgated combustion compliance
treatment alternative. EPA has withdrawn, therefore, the proposed suboption 2. In addition,
EPA believes that such Omnibus permit authorities are some how limited to ensure that the
1106
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combustion of F032 in combustion devices operated under the provisions of the 40 CFR 265 are
conducted routinely in well designed and operated treatment units. EPA has withdrawn,
therefore,' the proposed suboption 1.
1107
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DCN PH2A003 ' . .
COMMENTER The Penta Task Force
RESPONDER JLABIOSA
SUBJECT WOOD1 ^ ,
SUBJNUM 003. '
COMMENT The Notice of Data Availability seeks comment on, among other
things, three options that are being considered by EPA as
alternative treatment standards for pentachlorophenol ("penta")
wood preserving waste ("F032 waste"). The three options are: (1)
a "CMBST" treatment standard, (2) a CMBST treatment standard for
combustion units that achieve dioxin/furan emission limits of ,
0.20 ng/DSCM TEQ, and (3) a CMBST treatment standard for
combustion devices that are permitted under subtitle C of the
^ Resource Conservation and Recovery Act ("RCRA"); The Notice also
advises that a change in the proposed treatment standard for
F032 waste may dictate changes in the F024 (a group of
chlorinated aliphatic wastes) treatment standard.
RESPONSE . ' ' .
The commenter expresses concern over EPA's proposal to apply the same
regulatory controls on the combustion of F032 to F024 wastes. Specifically, the commenter
objects to EPA's proposal that F024 and F032 are subject to the same combustion requirements.
The commenter believes that EPA should not reopen the existing CMBST
standard applicable to F024. This is because the commenter believes that F024 is significantly
different than FQ32. EPA acknowledges that these wastes differ on the concentration levels of
specific hazardous homologues of D/F constituents and the type of D/F precursors both waste
have. EPA believes that the issue is in fact the same: can compliance with a D/F standard be
assured without monitoring residues. EPA believes that the answer is yes for a common class of
combustion devices. EPA does not see any basis for a finding that an interim status incinerator
can assure destruction for either type of waste, absent at least a showing of good combustion
conditions by such a unit. The Penta Task Force has asked EPA to adopt the same compliance
treatment standard of combustion currently applicable to F024. Adoption of the CMBST
would waive the monitoring of D/F constituents in F032 residues resulting from well designed
and well operated combustion devices. EPA codified such treatment compliance alternative as
.incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule (see 55 FR
22580-1, June 1,1990)). EPA later amended the standard to a CMBST standard in the Phase 3
rulemaking. Today, EPA is adding this standard in the final rule, and also is amending the.
standard for F024 to conform to a CMBST standard that requires operation under Part 264
incineration or Part 266 BIFs. <
\ ' -
. " ' r ' *
', . EPA's authority to prescribe .treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed'
1108
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to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other
available environmental federal/state laws can be used to support the establishment of 3004(m)
treatment standards and thus, to prescribed appropriate technological controls on treatment
methods prescribed for these wastes. EPA has promulgated specific performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F - ". .
constituents (see 40 CFR 264.343 (a) (2) and 50 FR 2005, January 14,1985). EPA has (
promulgated similar kinds of technology treatment standards for hazardous wastes regulated
under §268.42 and hazardous debris §268.46. These specific treatment standards under §§268.42
and 268.46 prescribe treatment methods and EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods are protective of the human health and the environment.
' . ' ' ' ' . . ' '
After reviewing public comments, EPA concurs with 'the commenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
the MACT standards at this time may impose an undue burden on the industry. EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, ad hoc technological controls can be issued to ensure that the
treatment of these wastes is conducted in well designed and well operated combustion devices.
In the interim, EPA is relying on RCRA Omnibus permit writer authorities to address potential
concerns with regard to the implementation of this promulgated combustion compliance
treatment alternative. EPA bias withdrawn, therefore, the proposed suboption 2. In addition, j
EPA believes that such Omnibus permit authorities are some how limited to ensure that the
combustion of F032 in combustion devices operated under the provisions of the 40 CFR 265 are
conducted routinely in well designed and operated treatment units. EPA has withdrawn, .
therefore, the proposed suboption 1. \ '
Other commenters to the NOD A presented persuasive comments that the
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under interim standards of 40 CFR 266. EPA is
persuaded that such units often meet more stringent standards than those imposed on 40 CFR
264, incinerators. EPA has also determined that ad hoc technological controls can be imposed, if
needed, to ensure that the combustion of F032 and F024 in 40 CFR 266 units are conducted in a
well designed and well operated combustion device! As a result, EPA has revised suboption 3 to
expand the availability of the proposed combustion "CMBST" treatment compliance .alternative
to include those units regulated under either 40 CFR 266 or 264. EPA believes that since the
commenter is burning F024 in 40 CFR 266 units the impact of this promulgated alternative will -
be minimum on the management of F024. EPA believes thai the suggestion has merit, provided
combustion occurs in devices that can assure destruction of these hazardous constituents. Units
subject to standards establishing .CO/HC standards, or specific controls for D/F, satisfy these
criteria. As explained in the preamble, these are Part 264 incinerators and Part 266 BIFs, plus
interim status incinerators that have demonstrated good combustion efficiency. (See also, Final
1109
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BDAT Background Document for Wood Preserving Wastes F032, F034, and F035, April 15,
1997.) , -
1110
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DCN . PH2A009 . . . .
COMMENTER Dow Chemical
RESPONDER' JLABIOSA ,
SUBJECT WOOD1
SUBJNUM '009 ' ,'
COMMENT Dow supports EPA's earlier decisionVegarding. BOAT F024 and .
believes this kind of approach can be adopted for other waste
codes such as F032 as proposed in Suboption 1. Dow supports the
Application of the existing F024 alternative combustion
treatment standards to F032 even though these wastes are
different These alternative combustion standards have been
established as BOAT for F024 and therefore are protective of
human health and the environment under LDR. Dow agrees with
EPA's determination that combustion is a robust technology and .
is capable of handling a wide variety of waste, therefore, if
EPA determines that the CMBST standard is protective of human
>' ' i , i * ' " ,
health and the environment when applied to the significantly
different F032 wastes, then the alternative combustion standards
should be established for F032.
RESPONSE . .''.., ' '
The commenter expresses concern with EPA's proposal to apply the same
regulatory controls on the combustion of F032 to F024 wastes. Specifically, the commenter
objects to EPA's'proposal that F024 and F032 are subject to the same combustion requirements.
' ' ** - * -
The commenter believes that EPA should not reopen the existing CMBST
standard applicable to F024. This is because the commenter believes that F024 is significantly
different than F032. EPA acknowledges that these wastes differ on the concentration .levels of .
specific hazardous homologues of D/F constituents and the type of D/F precursors both waste
have. EPA believes that the suggestion has merit, provided combustion occurs in devices that can
assure destruction of these hazardous constituents. Units subject to standards establishing
CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in the
preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators that
have demonstrated good combustion efficiency. (See also, Final BDAT Background Document
for Wood Preserving Wastes F032, F034, and F035, April 15,1997.) Nevertheless, both wastes
are toxic wastes listed under the 40 CFR 261 Part D and the combustion these wastes is currently
allowed in combustion devices that meet a four 9's Destruction Removal Efficiency performance.
The Penta Task Force has asked EPA to adopt the same compliance treatment standard of
combustion currently applicable to F024. Adoption of the CMBST would waive the
monitoring of D/F constituents in F032 residues resulting from well designed and well operated
combustion devices. EPA codified such treatment compliance alternative as incineration or
"INCIN" in the 40 CFR 264 Subpart 0 uiuY(seeThird Third rule (see 55 FR 22580-1, June 1,
1990)). EPA later amended the standard to a CMBST standard in the Phase 3 rulemaking.
1111
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EPA is adding this standard in the final rule, and aiso is amending the standard for F024 to
conform to a'GMBST standard that requires operation under Part 264 incineration or Part 266
BIFs. -'.''. ' ' .' ...
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 _(m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other
available environmental federal/state laws can be used to support the establishment of 3004(m)
treatment standards and thus, to prescribed appropriate technological controls on treatment
methods prescribed for these wastes. EPA has promulgated specific performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F
constituents (see 40 CFR 264.343 (a) (2) and 50.FR 2005, January 14,1985). EPA has '
.promulgated similar kinds of technology treatment standards for hazardous wastes regulated
under 268.42 and hazardous debris 268.46. These^specific treatment standards under 268.42 and
268.46 prescribe treatment methods and EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods are protective of the human health and the environment.
Other commenters to the NOD A presented persuasive comments that the
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under,interim standards of 266. EPA is persuaded
that such units often meet more stringent standards than those imposed on 264, incinerators.
EPA has also determined that, ad hoc technological controls can be imposed, if needed, to ensure
that the combustion ofF032 and F024 in 266 units are conducted in a well designed and well
operated combustion device. As a result, EPA has revised suboption 3 to expand the availability
of the proposed combustion "CMBST" treatment compliance alternative to include those units
regulated under either 266 or 264. EPA believes that since the commenter is burning F024 in
266 units the impact of this promulgated alternative will be minimum on the management of
F024. . :
1112
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DCN PH2A011 , .
COMMENTER Vinyl Institute ' ' ,
RESPONDED JLABISOA . ,' -
SUBJECT ' WOODI . ' ' ' ,
SUBJNUM , OH ' ' . ./ - . - . ' ' ;
COMMENT In the May 10 notice, EPA requested comment on a new option for
treating F032 under which incineration would Be set as the . .'
. treatment method for dioxin/fiiran (D/F) concentrations. D/F.
concentrations would not need to be measured in the treated
residues. EPA also outlined three suboptions, summarized as
follows: Suboption 1: Apply the existing F024 alternative
combustion treatment-standard (CMBST) to F032. Suboption 2: , '.
.. Establish F032's and revise F024's CMBST alternative standard to . . .
require the combustion unit to achieve a dioxin emission
standard. Suboption 3: Revise F024's CMBST alternative standard
(and set F032's standard) to limit the combustion of F024 and
F032 to combustion devices that have been permitted. For the
.reasons discussed below, the Vinyl Institute opposes suboptions
'2 and 3, but would support suboption 1. In prior rulemakings, in .
; . which it applied its criteria for identifying hazardous wastes
'under RCRA, the Agency listed the F024 and F032 waste streams as
' different waste streams from non-specific sources. To now apply
the same treatment standard to different ywaste" streams, the ,
Agency must more fully develop the rulemaking record. To
proceed otherwise would be arbitrary and capricious. F024 and '
F032 are fundamentally chemically different wastes. As pointed
out by the Agency in the notice, although the Agency has not ' .
fully reviewed data appearing in a characterization study by ' .
Vulcan Chemical, which was attached to the Penta Task Force's
comment on the original proposal, the Agency indicated in the
notice that the data "dp not appear to support a determination , ;
that F032 and F024 are exactly alike." The notice further
indicates that D/F concentrations in F024 and F032 vary by as
much as two orders of magnitude. In short, the listings for
. F024 and F032 at 40 C.F.R. Part 261 and the data submitted by'
Vulcan reasonably support the conclusion that these chemically
dissimilar streams should be evaluated independently by EPA
under RCRA and may not necessarily jequire the same treatment
standards. Even though the wastes are significantly chemically
different, the Vinyl Institute would support suboption l,iie., '
applying the existing F024 alternative combustion treatment ' .,
standards to F032. Over the years, combustion has proven to be ' .
effective hi protecting human health and the environment. As.
1113
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EPA indicates, it.believes that "well-operated and well-designed . -.
combustion units can meet the treatment standard for F024 and
F032." In addition, unlike suboptions 2 and 3, with suboption
1, facilities and regulators alike will find that determining
compliance is more straightforward and that it provides the
widest array of technology to effectively treat hazardous waste
streams from different sources.
RESPONSE './.'
The commenter expresses concern over EPA's proposal to apply the same
regulatory controls on the combustion of F032 to F024 wastes. Specifically, the commenter
objects, to EPA's proposal that F024 and F032 are subject to the same combustion requirements.
' i
The commenter believes that EPA should not reopen .the existing CMBST
standard applicable to F024. This is because the commenter believes that F024 is significantly
different than F032. EPA acknowledges that these wastes differ on the concentration levels of
specific hazardous homologues of D/F constituents and the type of D/F precursors both waste
have. EPA believes that the suggestion has merit, provided combustion occurs in devices that
can assure destruction of these hazardous constituents.' Units subject to standards establishing
CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in the
preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators that
have demonstrated good combustion efficiency. (See also, Final BDAT Background Document
for Wood Preserving Wastes F032, F034, and F035, April 15,1997.). EPA is adding this
standard in the final rule, and also is amending the standard for F024 to conform to a CMBST
standard that requires operation under Part 264 incineration or Part 266 BIFs.
\
Nevertheless, both wastes are toxic wastes listed under the 40 CFR 261 Part D
and the combustion these wastes is currently allowed in combustion devices that meet a four 9's *
. Destruction Removal Efficiency performance. The Penta Task Force has asked EPA to adopt the
same compliance treatment standard of combustion currently applicable to F024. Adoption of
the CMBST would waive the monitoring of D/F constituents in F032 residues resulting from
well designed and well operated combustion devices. EPA codified such treatment compliance
alternative as incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule
(see 55 FR 22580-1, June 1,1990)). EPA later amended the standard to a CMBST standard in
the Phase 3 rulemaking. ' .
.- ' ' (
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. .Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other
available environmental federal/state laws can be used to support the establishment of 3004(m)
treatment standards and thus, to prescribed appropriate technological controls on treatment
1114
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methods prescribed for these wastes. EPA has promulgated specific performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F
constituents (see 40 CFR 264.343 (a) (2) and 50 FR 2005, January 14, 1985). EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes regulated .
under 40 CFR 268.42,and hazardous debris 40 CFR 268.46. These specific treatment standards
-under §§268.42 and 268.46"prescribe treatment methods and EPA has relied on permit authority.
, federal/state air emission standards, or promulgated'operational technology performance
requirements to ensure that the technology treatment methods are protective of the human
^health and the environment. .'..'-
1115
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DCN . PH2A012 ' -
COMMENTER Beazer
RESPONDED JL '
SUBJECT .WOOD1
SUBJNUM 012' ,'
COMMENT Although Beazer does not endorse any of the three suboptions
proposed, Beaker believes that the first suboption would provide
the most flexibility to the regulated community and would best
serve to contain costs for such treatment. This option-has been
successfully used for F024 wastes and should be expanded to
include F032 wastes. Beaker believes that adoption of either the
second or third suboptions would be inconsistent with the
Agency's goals in setting the alternative treatment standard.
These suboptions both would require additional control equipment
and/or permitting before a facility could accept F032 wastes. As
such, we believe that commercial availability will be limited to .
a smaller universe of incineration and combustion facilities and
consequently, there would be a potential for increased costs
with no increased environmental benefit. In conclusion. Beaker
supports the establishment of the alternative treatment
standard, as modified by suboption 1 for F032 wastes.
Notwithstanding this position, it is important to note that .
while the incineration/combustion treatment standard may relieve
some of the burden on the regulated community to meet the
concentration-based standards, it does not completely solve the
waste disposal problem. Although* the use of incineration and ,
combustion for limited volumes of process waste streams may be
possible under the proposed rule, incineration will never be
cost-effective for large volumes of wastes, especially
remediation wastes. As stated in our previous comments, Beaker
disagrees with EPA's capacity estimates insofar as those
estimates do not account for the approximate 85.3 MM tons of
soil impacted by previous wood treating operations which may
require treatment under the proposed Phase IV LDRs. Based on the
existing incineration capacity to date, it would take over 200
years to treat this quantity of material. Moreover, most
incinerators cannot manage large volumes of impacted media..
Although, in theory, the combustion alternative may broaden the
scope of available facilities, in practice, it remains to be
seen whether those facilities will be able to accept the types
of wastes generated at remediation sites.
RESPONSE '
1116
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EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to comments
from the Penta Task Force and the American Wood Preserving.Institute, the EPA has also
proposed and is promulgating in today's rule an alternative compliance treatment standard that'
sets combustion ("CMBST") as a treatment method for D/F constituents in F032,
' * . ' ' '' - . '
EPA notes that the adopted approach allows'flexibility for complying with the
treatment requirements applicable to soils contaminated with F032 wastes. EPA has also
identified energy/chemical intensive treatment alternatives in the Final'BDAT Background
Document that can enable remediation soils/wastes to meet the UTS limits promulgated today.
EPA also believes that soils/media contaminated with F032 that are difficult to treat or for which
EPA may determine the treatment standards are inappropriate can seek alternative-treatment
standards pursuant to 40 CFR Part 268.44(h). In addition, other potential waivers or variances
are explained in the Final BDAT Background Document for Wood Preserving Wastes (F032,
F034, and F035). , . '' ' ' . ' . ' '. ' . . ' ,
1117, ..
-------
DCN .PH2A012 , . . " .
COMMENTER Beazer .
RESPONDER JLABIOSA
SUBJECT WOOD1 . '
SUBJNUM 012 . - ' . , '
COMMENT In response to these and other comments asking EPA to consider
alternatives to setting dioxin/furan concentration limits in the
final rule, EPA is now considering an alternative option that
would provide what it believes is additional flexibility to F032
generators. The new option would establish an alternative
treatment standard that sets incineration/combustion as a
. treatment method for dioxin/furan constituents in lieu of
- meeting the proposed concentration-based standards. The
concentration-based standards for other organic constituents in
F032, however, would still be required to be achieved: 61 Fed.
. Reg. 21420. './'..
RESPONSE
EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to comments
from the Penta Task Force and the American Wood Preserving Institute, the EPA has also
proposed and is promulgating in today's rule an alternative compliance treatment standard that
sets combustion ("CMBST") as a treatment method for D/F constituents inF032.
-------
DCN, PH2A015 .. ' "'.-',-'
COMMENTER\CKRC ' ~ . . . .
RESPONDER JLABIOSA ' .'' ': . '
SUBJECT WOOD1 . '' ' . . ..'.'.
SUBJNUM 015 ;-. .'_'.'. " . ' . '
COMMENT .Option 1.-CMBST Treatment Standard this option of the NODA
requests comment on applying the existing"F024 alternative- -
combustion treatment standard to FO32. In its April 8,1996 Land .
.'Disposal Restrictions Phase III Final Rule, EPA modified the
-. . - treatment standard expressed as INCIN, which specified hazardous
waste incineration, to CMBST, which allows combustion'in .
.incinerators, boilers and industrial furnaces.. This modification -
'confirms that, regardless of the technology,a well-operated . ' '
combustion unit complying with either the BIF interim stati's or ' .
incinerator regulations can manage RCRA hazardous wastes in a
. manner protective of human health and the environment. This . ,
supports EPA's stated belief in the NOD A. that "well-operated and - . , .
4 well-designed combustion units can meet the treatment standard .
for FO24 and FO32."This is the only option within the proposal
that is consistent with Agency policy determinations in -
promulgated rule,makings. Thus, it is the only option which the
Agency requests comment.that relies upon information which has
been subject to full public notice and comment; and it appears; ' '
to be the only option presented with a sound enough basis to be ;" , ,
justified^ an'alternative combustion treatment standard for
'- F032wastes. - . . . .'
RESPONSE . , .
The commenter has submitted comments on each regulatory suboptions EPA
proposed to assure compliance with an alternative treatment standard of combustion
"CMBST" . Adoption of the "CMBST" standard will allow the disposal of F032 without the
need for monitoring the concentrations of D/F constituents in the treated F032 wastes. The .
commenter urges EPA to withdraw suboptions 2 and 3, and to promulgate, suboption 1. In,
addition, the commenter submitted extensive comments and studies which the commenter
believes may lead EPA to conclude that the proposed suboption 2 (i.e., the proposed MACT air
emission limit for D/F) is flawed. : , ,. .
. '> * '
. .EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed *
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other
available environmental federal/state laws can be used to support the establishment of 3004(m)
1119
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treatment standards and thus, to prescribed appropriate technological controls on treatment
methods prescribed for these wastes. EPA has promulgated specific performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F
constituents (see 40 CFR 264.343 (a) (2) .and 50 FR 2005, January 14,1985). ~EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes regulated
under 268.42 and hazardous debris 268.46. These specific treatment standards under 268.42 and
268.46 prescribe treatment methods and EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure.
that the technology treatment methods are. protective of the human health and the environment.
Like .other conimenters, this commenter has presented persuasive and factual
comments that the combustion "CMBST" compliance treatment alternative is also available for
F032 and F024 combusted in combustion units operating under interim standards of 40 CFR
266. The EPA is persuaded that such units often meet more stringent standards than those
imposed on 40 CFR 264, incinerators. EPA has also determined that ad hoc technological -
controls can be imposed, if needed, to ensure that the combustion of F032 and F024 in 40 CFR
266 units are conducted in a well designed and well operated combustion device. As a result,
EPA has revised suboption 3 to expand the availability of the proposed combustion "CMBST" .
treatment compliance alternative to include those units regulated under either 40 CFR 266 or
264. ' ' - ' ' -
1120
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DCN 'PH2A015 , . . . ' -.
COMMENTER CKRC ' , '
RESPONDER JLABIOSA . . " i . . ;
SUBJECT WOODl' . '. - "
SUBJNUM 015 " ' - '. v " -. '' ! ... .
COMMENT Option 3 -- CMBST Treatment Standard for Combustion Devices that
are Permitted Under Subtitle C of RCRA EPA.suggests ,iii suboption . ;
3 that an alternative in which it would limit land ban treatment '. |
of F024 and F032 wastes to combustion units that have received a '
. RCRA-permit, as,opposed to those that are operating under ...
1 ; interim status. The Agency appears to unjustly assume-that all
permitted units -through use of the RCRA section 3005(a)(3) . . N .
"omnibus" authority in the permitting process--have been -
.subjected to dioxin/furan limitations that are sufficiently .
.. . stringent to address EPA's purported concerns. We submit that
this approach is wholly illogical and clearly, is unsupported by
the record before EPA. First, it assumes that after use of , -
omnibus authority, the standards imposed on commercial : .
incinerators through RCRA permits are uniformly more stringent ' -,
than interim status standards ..on BIFs. CKRC's Petition for
.Rulemaking of January-18, 1994 (attachment 3) most clearly . ,
'' . demonstrates just the opposite to .be true. Current EPA rules and -
policies impose more stringent requirements on cement kilns than
on incinerators. A cursory comparison of the currently,effective
Boiler and Industrial Furnace (BIF) rules and the incinerator
rules shows that cement kilns are subject to more extensive . 5 .
requirements;, most notably, D/F specific regulatory language, , '
and the emission standards for ten toxic metals in the BIF rules
that are lacking in the incinerator rules. Virtually all of the. . -
BIF rule requirements apply during interim status and are fully y '
enforceable during interim status. 'EPA has on at least two
recent occasions confirmed this fact In ah October 1995 EPA-
Region VII Fact Sheet (attachment 4) distributed at a public - '
hearing, EPA states that "Federal regulations that apply to air
emissions from cement plants burning hazardous waste are newer ,
and more comprehensive than the regulations for Hazardous waste
incinerators." Also, in the Agency's May 30, 1996 letter to Tom. . .
Blank of the Association for Responsible Thermal Treatment.
, (ARTT) (attachment 5) Mike Shapiro, Director of the Office of'..'
; Solid Waste, writes that "the cement kiln standards provided by .
the Boiler and Industrial Furnace rule are, in fact, more
, . stringent than the Subpart O, Part 264* incinerator standards in
that they, establish risk-based emission limits for individual v
1121
-------
.metals, hydrogen chloride, and chlorine, in addition to the same
DRE and paniculate matter standards that apply to .
incinerators/' In addition, site-specific risk assessments on
BIF-regulated cement kilns confirm the effectiveness of the BIF :
regulations to limit emissions from these facilities at levels
that are protective of human health and the environment. The , x
Texas Natural Resources Conservation Commission (TNRCC) . .
(attachment 6) and EPA Region VI (attachment 7) recently .
completed risk assessment studies on a cement kiln'engaged in .
. energy recovery in compliance with the BIF rule. These studies
concluded that the risks posed by operation of the cement kiln '
burning waste-derived fuel is low. The multi-year TNRCC study ... ..
was notable in that it focused on not only the health risks, -
but, more importantly, on the actual health effects of nearby - -
residents. The suboption also assumes that all permitted . ' - >
incinerators have had special provisions imposed through omnibus
that more stringently address dioxins and furans than the
control levels now being achieved by interim status cement
kilns. EPA .quite clearly does not have the record to support
this assumption and, in fact, the current rulemaking record - '.,
demonstrating BIF compliance shows that interim status cement :
kilns are just as likely to control dioxins and furans in a
superior manner as compared to permitted incinerators.
Furthermore, based upon the omnibus guidance that has been used
for incinerator permitting over the last few years and the
permit conditions of which we are aware, we believe it is
manifestly and wholly illogical for EPA to assume that '
commercial incinerators operating under RCRA permits would
somehow deal more effectively with EPA's concerns than interim
. status cement kilns. Unless EPA has data and information in the '
record to support this assumption across the board, such a /
regulatory distinction would be arbitrary and capricious.
FOOTNOTES /I In the NODA., EPA reports the HWC MACT proposed limit
as 0.20 ng D/F TEQ/dscf. The units are translated incorrectly
and should be 0.20 ng D/F TEO/dscm. 12 "Emissions Testing of Ash
Grove Cement Company Foreman, Arkansas Waste-Derived Fuel
Facility Cement Kiln No. 3, May 19,1995. .
RESPONSE '..'
The commenter has submitted comments on each regulatory suboptions EPA
proposed to assure compliance with an alternative treatment standard of combustion
"CMBST". Adoption of the "CMBST" standard will allow the disposal of F032. without the
1122
-------
need for monitoring the concentrations of D/F constituents in the treated F032 wastes. The
commenter urges EPA to withdraw suboptions 2 and 3, and to promulgate, suboption 1. In
addition, the commenter submitted extensive comments and studies which the commenter
believes may lead EPA to conclude that the proposed suboption 2 (i.e., the proposed MACT air
emission limit for D/F) is flawed.' . "...
EPA's .authority to prescribe treatment limits or methods of treatment under the
LDRareset under section 3004 (m) of HSWA. Under such H SWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other ;
available environmental federal/state laws can be,used to support the establishment of 3004(m)
treatment standards arid thus, to prescribed appropriate technological controls on treatment
methods prescribed for these wastes. EPA has promulgated specific-performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F .
constituents (see 40 CFR 264.343 '(a) (2) .and 50 FR 2005, January 14, 1985). EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes regulated
under 268.42 and hazardous debris 268.46. These specific treatment standards under 268.42 and
268.46 prescribe treatment methods and EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods are. protective of the human health and the environment.
. Like other commeriters, this commenter has presented persuasive and factual
comments that the combustion "CMBST" compliance treatment alternative is also available for
F03 2 and F024 combusted in combustion units operating under interim standards of 40 CFR
266; The EPA is persuaded that such units often meet more stringent standards than those
imposed on 40 CFR 264,"incinerat6rs. EPA has also determined that ad hoc technological
controls; can be imposed, if needed, to ensure that the combustion of F032 and F024 in 40 CFR
266 units are conducted in a well designed and well operated combustion device. As a result,
EPA has revised suboption 3 to expand the availability of the proposed combustion "CMBST"
. treatment compliance alternative to include those units regulated .under either 40 CFR 266 or <
264. ; .' . ' -.'"'' ; : ': ' .- - '
1123
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DCN , . PH2A021 . . -
COMMENTER J.H.Baxter
RESPONDED JL
SUBJECT WOOD1
SUBJNUM; 021
COMMENT - A. Treatment Standard for F032 Wastes J:H. Baxter is encouraged
by the alternative treatment method for F032 wastes described in
- EPA's suboptionl. 61 Fed. Reg. 21421. This option is based on
a review of information submitted in response to EPA's initial <
proposal, including waste characterization data from Vulcan
Chemical and economic information from, inter alia, J.H. Baxter.
Suboption 1 would allow F032 wastes to be combusted in devices
that meet the "CMBST" standard set forth in the final Phase III
rule issued on Aprils, 1996, while suboptions 2 and 3 are more, ' '
restrictive.
RESPONSE
EPA is promulgating treatment standards that set numerical limits for the '
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to comments
from the Penta Task Force and the American Wood Preserving Institutei the EPA has also
proposed and is promulgating in today's rule an alternative compliance treatment standard that
sets combustion ("CMBST") as a treatment^ method for D/F constituents in F032.
EPA has promulgated, however, a revised "CMBST" compliance alternative
which limits the availability of the "CMBST" to those combustion devices in compliance with
applicable combustion standards in the 40 CFR 264 Subpart O, or 40 CFR 266. F032 wastes
combusted in combustion devices operating under 266 or 264 do not have to monitor the
concentrations of D/F left behind in combustion residues. However, the facilities must meet
UTS numerical limits applicable to each organic and metal constituent regulated in F032 as a ',
prerequisite to land disposal.
It should be emphasized that facilities seeking the combustion of F032 in an
incinerator regulated under a 40 CFR 265 Subpart O do not qualify for a "CMBST" treatment
standard. F032 residues arising from 40 CFR 265 units must meet the applicable UTS
numerical limits for each regulated D/F constituent as a prerequisite to land disposal.
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other .
available environmental federal/state laws can be used to support the establishment of 3004(m)
treatment standards and thus, to prescribed appropriate technological controls on treatment
1124
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methods prescribed for these wastes. EPA has promulgated specific performance standards for'
the operation of incinerators combusting certain acutely toxic wastes that contain D/F
constituents (see 40 CFR 264.343 (a) (2) and 50 FR 2005, January 14, 1985), EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes-regulated .
under §268.42 and hazardous debris §268.46. These specific treatment standards under §§268.42
and 268 46 prescribe treatment methods and EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods are protective of the human health and the environment.
1125
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1126
-------
DCN PH4P039 . ' - ." . .
COMMENTER AWPI . ':'-....,''
RESPONDER JL '..''
SUBJECT WOOD2 . ; , ,
SUBJNUM 039 ' t ' ' ', "-" . . -
COMMENT LDRs FOR NON-WASTEWATERS SHOULD NOT BE BASED ON TOTAL ,
, CONCENTRATIONS In 1986, when the Agency first promulgated LDRs ,
for dioxin and furan wastes (F020-23 and F026-28), the 1 ppb
LDRs were promulgated as leachate levels not as, total , v, -
concentrations. Under the Universal Treatment Standards ' , .
1 promulgated in 1994, these LDRs became total concentrations. ,.
. Now, soils containing constituents in excess of UTSs must be ...
treated, regardless of leachability. This ignores the effects . .' ' - ' '
of geochemistry and the corresponding; limited rriobilityor -
., availability of constituents of concern previously recognized by
the Agency. At the Selma Wood Treater CERCLA site, 13,000 cubic
yards of arsenic soils were successfully immobilized.using
conventional stabilization techniques in tests performed by
EPA's Office of Research and Development (ORD), Risk Reduction
and Engineering Lab (RREL). In the ROD for the Selma site,
teachable standards for the metal constituents and for 1
pentachlorophenol were specified in lieu of total .
concentrations. COMMENT: EPA should either raise the UTSs to ' " . .
reflect the differences in basing the standards on total
,.' i
concentrations, or base the LDRs'for, non-wastewaters on leachate ,
concentrations. < . ' -*
RESPONSE ' "- ' ' _. .' . - - . ' ' -. .V-'
The commenter is asking EPA to set UTS limits for dioxin and ruran (D/F) .
hazardous constituents in F032 that are based on leachate concentrations as measured by the
TCLP rather than concentrations measured by the total constituent analyses. The commenter
believes that TCLP is a better performance indicator for D/F since these constituents are not that
mobile. , . . .
"" - ' . s ' " .
EPA is not persuaded by this comment. A leaching standard for toxic organics
like D/F comports badly with a statutory standard requiring that short and long-term threats to the
human health and the environment are "minimized." Congress expected technology-based
treatment to be used to satisfy this requirement, in particular, that hazardous organics be
destroyed prior to disposal. (125 Congressional Record S 9178 (July 25,1984) (statement of Sen.
Chaffee). Given that dioxins are the most toxic of all of the Appendix 8 hazardous constituents,
destruction of these constituents is particularly appropriate. EPA also believes that there are a '
number of destruction and recovery technologies that can meet the promulgated limits.' EPA is
thus promulgating UTS limits as proposed. .
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1128
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DCN PH2A009 ' ."-. , . .
COMMENTER Dow Chemical ' ''.'' ','.-
RESPONDER-JLABIOSA ' , .
SUBJECT WOOD2 .
SUBJNUM 009, ! . ; -,. . - - -.'.' ' V,
COMMENT Dow disagrees with EPA that F024 and F032 are similar enough to
, ' necessarily warrant the same LDR treatment standard. EPA has "
stated that F024 and F032 are dififerent and Dow agrees with
statement. These wastes were listed as different waste codes
since they are generated in significantly different processes
and have fundamentally different scopes. F024 is essentially .
some of the wastes from the production of chlorinated aliphatic
hydrocarbons with one .to five carbon atoms by free radical :
catalyzed processes. ,F032 is essentially some of the wastewater
from wood preservatives associated wim chlorophenolic compound'
formulations. Note that chlorophenolic compounds are not ' .
. - aliphatic and have at least six carbon atoms. This requires
-that the carbon atom bound to the chlorine atom in the F024 - .
wastes is unsaturated, putting these materials into a completely \
different class of compounds from the unsaturated carbon atom
. bound to the chlorine in the F032 waste description. Further,
the F032 waste listing only includes wastewater, while no such .
critical limitation appears in the F024 waste listing. Thus,
three of the fundamental aspects of the definitions of these two
waste codes differ. These distinctions support EPA's long held ,
view that these two waste codes are fundamentally different
(See 40 CFR 261.31) This distinction is further supported when , '
EPA considers the maximum D/F concentrations, the only data
contained in this part of the notice. . . . ,
RESPONSE ' . . ,
' * ., ' ' . -
EPA acknowledges that these wastes are different with regard to the
concentrations and types of D/F homologues and isomers present in these two waste as well as
other precursor hazardous constituents to the formation of D/F in combustion devices. EPA also
acknowledges that separate listing determinations granted separate RCRA waste code listing
classifications for each of these two wastes. EPA emphasizes, however, that both wastes are
toxic wastes, listed under the 40 CFR 261 Part D, and the combustion of these wastes is
currently allowed in combustion devices that meet a four 9's Destruction Removal Efficiency ,:
performance. The Perita Task Force has asked EPA to adopt the same compliance treatment
standard of combustion currently applicable to F024. Adoption of the "CMBST" would waive
the monitoring of D/F constituents in F032 residues resulting from well designed and well .
operated combustion devices. EPA codified such treatment compliance alternative as
incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule (see 55 FR
1129
-------
22580-1, June 1, 1990)). EPA later amended the standard to a CMBST standard in the Phase 3
rulemaking. EPA believes that such action was inappropriate for F024 and is thus, recalling in
this rulemaking such treatment standard to limit the combustion of F024 to those devices which
EPA can prescribe operating controls that ensure that they are well designed and operated.
' \ '
EPA has authority under Section 3004 (m) to address short-term concerns that
may result fronvthe combustion of these wastes and in particular, the potential emissions of D/F
from combustion devices. In addition, EPA. has authority under 264 Subpart O and 266 to
impose technological controls that can ensure that the destruction and removal of Priority,
Hazardous Organic Pollutants such as D/F and other D/F precursors in F032 and F024 is.
accomplished during combustion, EPA believes that for the purpose of implementing the "
CMBST" standard the proposed suboption.calling for the adoption of the proposed MACT air
emission limit for D/F may impose, a regulatory burden on the combustion industry since the
merits of such proposed limits still being deliberated under the MACT rule. The MACT rule is
scheduled for promulgation in April 1988. EPA believes that in the interim the available RCRA
permit Omnibus authorities under 266 and 264 can be used to ensure that compliance with the
proposed treatment alternative of "CMBST" is conducted in well designed and operated units
and that the "CMBST" practice itself is protective of the human health and,the environment.
As a result of this determination and authorities, EPA has withdrawn the proposed suboptions 1
and 2. EPA has promulgated, instead, a compliance treatment standard of "CMBST" that is
limited to those units operated under 266 and 264 Subpart O.
1130
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DCN . PH2A011
COMMENTER Vinyl Institute . ' -
RESPONDER JL ...
SUBJECT WOOD2 . , -. ,.'.':. ;
SUBJNUM Oil
COMMENT On May 10,1996, EPA requested comments on, inter alia, proposed
treatment standards on wood preserving wastes, F032, under Phase .., - /
IV of the Land Disposal Restrictions (LDR) of the Resource . .
Conservation and Recovery Act (RCRA). EPA announced in the , . . ,
. comment request notice that modifications to the proposed
treatment standard for F032 wastes might require modifications
to the'treatment standard for chlorinated aliphatic wastes, ;
F024. F024 wastes may be generated by some Vinyl Institute
member companies. , . . .
RESPONSE
\ * '
EPA is promulgating a modified treatment combustion alternative of "CMBST"
for F032 that limits the combustion of F032 in devices regulated under the 40 CFR 266 and 264
Subpart O. As proposed, EPA is amending the existing "CMBST" compliance treatment
alternative for F024 and promulgating instead, the same "CMBST" treatment alternative finalized
for F032 in today's rule. EPA notes that F024 combusted in incinerators operated in compliance
with the 40 CFR 265 Subpart O do not qualify for these alternative "CMBST" treatment
alternative unless the facility can demonstrate that the combustion efficiency of the Part 265
incinerator is similar to or better than those under Part 264 (incinerators) or Part 266 (BIFs).
EPA will use 40 CFR 268.42(b) to examine and determine how equivalent Part 265 incinerators
are to Part 264 incinerators or Part 266 BIFs. (See Final BDAT Background Document for
Wood Preserving Wastes F032, F034, and F035, April 16, 1997, and the preamble for.a
discussion of such determination of equivalent treatment pursuant to 268.42(b).). As a result,
facilities or generators who elect to combust F032 and F024 in 40 CFR 265 incinerators must -,
monitor the levels of D/F constituents in the treated residues or rely on expert knowledge as a
prerequisite to land disposal. .
-------
DCN PH2A015 .
COMMENTER .CKRC
RESPONDED JLABIOSA
SUBJECT WOOD2
SUBJNUM 015 . '
COMMENT Option 2--CMBST Treatment Standard for Combustion
Units' that Achieve D/F, Emission Limit of 0.20 ng/DSCM^TEO In the
NDA Option 2, EPA requests comment on using the proposed HWC
MACT 0.20 ng/DSCM (corrected' 7% Oxygen)/! D/F emission standard
for RCRA hazardous waste combustion units as a requirement of a
CMBST alternative treatment standard^ First, .CKRC believes it is '
inappropriate to take proposed limits, which have not been
subject to public comment, and use them as a basis to develop
regulatory policies in other rulemaking efforts -particularly , '
a proposal as controversial as the Hazardous Waste Combustion
(HWC) MACT rule. Second, CKRC strongly opposes this emission
limit as it is based on a faulty assumption that there is a . .
direct correlation between hazardous waste feed and emission
rates. CKRC has provided the Agency with significant data
contrary to this assumption. For example, CKRC's comments on
EPA's Combustion Emissions Technical Resource Document (CETRED)
(attachment 2) and a February 6,1995 study by (attachment 1)
Rigo & Rigo Associates, Inc. showed that there is no correlation '-
between chlorine feed and dioxin emissions from cement kilns. .
Further, the data demonstrates that there is no correlation
between emitted hydrocarbon and/or carbon monoxide and dioxin
emissions even at levels well in excess of those experienced
during upset (COC and trial burn) operating conditions.
Consequently, feedrate limitations are inappropriate because ,
they generally are not emission control techniques. This
fundamental concern is heightened by the Agency's listing of
several "effective controls to inhibit D/F formation" from
cement kirns. While some of the general D/F controls raised in
the NDA may be appropriate, CKRC has specific concerns about
three of the four controls referenced in the notice. APCD Inlet
. temperatures of less than 400 degF for the flue gas - CKRC
generally agrees that there is a correlation between temperature
control and dioxin emissions. However, the Agency's specific
reference to 4000F is directly at odds with its reference to 418
degF in its Combustion Emissions Technical Resource Document
(CETRED) dated May 1994 and its HWC MACT proposed rule dated
April 18,1996 . Further, the BIF rules identify an operating
window of APCD temperatures between 450 and 750 degF for cement
1132
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kilns with potentially high emissions. These facilities are
required to test for D/F during their certification of
, compliance and trial burn testing and are required to meet a *
, site-specific, risk-based D/F emission limit. This testing as
well as numerous other testing data supplied to the Agency,
demonstrates mat the site-specific element plays an important.
role in this correlation, calling into question the
' appropriateness of relying on any one particular temperature
' number for cement kilns across the board. Further, the Agency's
study of D/F emissions during'cement kiln trial burns confirms
that there is no relation between hazardous waste feed (or.
POHCs) and emissions./! Good Combustion Practices - CKRC has
provided the Agehcy with a tremendous amount of data, such as
the Rigo report cited above, that demonstrates there is no
correlation between "good combustion" parameters and dioxin
emissions. The reference to "good combustion practices " as a.
dioxin emissions control is particularly troublesome to CKRC as
EPA has traditionally relied on knowledge about and data from
incinerators to define "good combustion practices.1- As discussed
below, EPA is in possession of data demonstrating the
inappropriateness of applying these same incinerator-based
principles to cement kilns considering the extraordinary
differences between the two devices;. Activated Carbon Injection
CKRC also is concerned with the Agency's implication about
the effectiveness of activated carbon injection in cement kilns
as a D/F emission control. Simply because carbon injection may
be an effective D/F control in a municipal waste combustor (MWC)
does not ensure its effectiveness in a cement kiln. A cement
kiln is a very different device with different purposes and
operating parameters than an incinerator. The Agency's
consistent failure to recognize these crucial differences and
existing test data to the contrary cause CKRC to question the
appropriateness of technology transfer with regard to activated .
carbon injection from MWCs to cement kilns. CKRC's concern is
further justified in the next sentence of the NDA when EPA
states that "...studies conducted at various domestic . ' - '
incineration units such as light weight aggregate kilns and
cement kilns..." (NDA electronic version, p. 7). As we have
commented consistently in every set of comments submitted to the
Agency (attachment 2) as well as during numerous meetings with
the EPA staff, a.cement kiln is not an incinerator. Considering
the completeness of the record on this issue, this inaccurate
> statement clearly reflects that these issues are more complex
1133
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.and technical than should be dealt with in this notice. CKRC
will comment more fully on both of these control issues in its .'
comments on the proposed HWC MACT rule which will be submitted
by the August 19,1996 comment deadline. CKRC has additional l ...
concerns regarding the basis of this option. The ND A discussion '
continues that "EPA's studies show that at least 5 0% of the \ .
facilities tested for the proposed combustion rule,meet this ...'..
MACT limit." CKRC strongly disputes the validity of this
statement and notes that the Agency fails, within the context of .
this NDA, to consider the extraordinary costs associated with
implementation of these limits, which currently, are subject to
public comment and under significant debate. Finally, the Agency ,
states that ."any RCRA permitted or interim status combustion
device .capable of demonstrating achievability in meeting thev ' "
dioxin (TEQ) air emission discharge limit would be allowed to ,
combust F024 and F032." Because the Agency has not selected such
a standard, CKRC is unable to comment on the ability of a
combustion device to demonstrate achievability in meeting the
D/F limit. Further, the Agency provides no explanation of or
criteria on which to base the "capability to demonstrate
achievability." Without such criteria and other implementation
discussion, we are unable to substantively comment on this
option. CKRC strongly opposes codification of the D/F limit as a
requirement of the CMBST alternative because it is based on
information that has not been subject to full public notice and
comment in the more appropriate HWC MACT rulemaking process
which is currently underway. It also embraces erroneous ' '
technical support to address global issues with far-reaching
policy implications. These fundamental flaws demonstrate that
there is no sound basis for going forward with such an approach: '
RESPONSE
- ' EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment. EPA believes that Omnibus permit authorities under RCRA and other
available environmental federal/state laws can be used to support the establishment of 3004(m)
treatment standards and thus, to prescribed appropriate technological controls on treatment
methods prescribed for these wastes. EPA has promulgated specific performance standards for
the operation of incinerators combusting certain acutely toxic wastes that contain D/F
constituents (see 40 CFR 264.343 (a) (2) and 50 FR 2005, January 14,,1985). EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes regulated
1134
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under 268.42 and hazardous debris 268.46. These specific treatment standards under 268.42 and
268:46 prescribe treatment methods and'EPA has relied on permit authority, federal/state air
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods are. protective of the human health and the environment.
\. . *
: - , '
After reviewing public comments, EPA concurs with the commehter that '
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituehts'in F032 and F024 will ultimately be.addressed in the MACT rule and that finalizing
the MACTstandards at this time may impose an undue burden on the industry. ~ EPA intends to
finalize the proposed MACT standards in April 1998. Like the commenter, EPA believes that
Until MACT.standards.are promulgated, 'ad hoc technological controls can be issued to ensure \
that the treatment of these wastes is conducted in well designed and well operated combustion
devices. EPA also agrees that units regulated under the current Part 266 standards, which '
includes cement kilns, may be eligible for the alternative standard for CDD and GDFs in these
wastes.. See preamble for rationale.
1135
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DCN - PH2A020 , . ' ' .
COMMENTER CONDEA . , .
RESPONDER JLABIOSA
SUBJECT WOOD2
SUBJNUM 020 . . . -
COMMENT CONDEA Vista Company is an occasional generator of F024 waste
from its Vinyl Chloride Monomer manufacturing facility. We are
writing in response to the May 10,1996 Federal Register notice
regarding Phase IV Land Disposal Restrictions. In this notice, ( ,
EPA proposes LDR treatment options for wood preserving waste
F032, and potentially, the waste of interest to our company,
F024.' ,
RESPONSE
EPA is addressing the commenter's concerns in today's final rule.
1136
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DCN PH4P023 . .(: . " . ' ' .'"''.
COMMENTER BeazerEast, -. , .
RESPONDER JLABIOSA ' ,
SUBJECT WOOD3 . . . .
SUBJNUM .023'.. . -
COMMENT B. The Proposed LDR for Hazardous Waste No. F034 Should Not
'Include Arsenic and Chromium as COCs. The proposed LDR for F034
. Jncludes arsenic and chromium as COCs. 60 Fed. Reg. 43682.
Beazer believes that EPA's inclusion of these inorganic '
constituents.in the F034 LDR is unnecessary and inappropriate.
The F034 listing includes [w]astewaters, process residuals, : ,
.. preservatives, drippage and spent formulations from wood -'
preserving processes generated at plants that used creosote
formulations. 40 C.F.R. §261.31 (emphasis added). In contrast, i,
the hazardous waste listing for F035 includes [wjastewaters,
process residuals^ preservative drippage and spent formulations
, from wood preserving processes generated at plants that use
inorganic preservatives containing arsenic and chromium.
Although-F034 wastes contain no metal COCs, EPA has included the
. arsenic and chromium constituents under the F034 LDR because
creosote and copper chromium arsenate ("CCA") formulations
sometimes have been used at the same wood treating sites. This .
rationale, however, is contrary to. the Agency's regulations on ,
'-' waste categorization which provide that [fjdr the purposes of
compliance with 40 C.F.R^ Part 268 ... the generator must
. determine whether the waste is identified in Subpart C of 40
C.F.R. Part 261 by either: (1) testing ..'.; or (2), applying
knowledge of the hazard .characteristic in light of the materials
or processes used. 40CJ.R. §262.11(c). Regulated parties who
actively operate wood treating plants or perform cleanups at
' wood treating sites are able to tell with substantial'certainty
whether CCA was used .at the site,. CCA is a substantially
different formulation from either creosote or penta and it is
not difficult to determine its presence in the field. When the ', '
generator has knowledge that CCA was used at the site, the
. . wastes associated with the CCA process would be characterized as
F035 and the LDRs for F035 would apply. 4.0 C.F.R. § 262.11 (b).
EPA has stated that the LDR parameters for each waste are to be .
v those constituents proposed for regulation in the waste. 60
Fed. Reg. 43680, Col. 3. EPA followed this rule in proposing
LDRs for F032 and F035, but not for F034. Arsenic and chromium , ,
were not constituents proposed for regulation in F034. 40
C.F.R. Part 261, Appendix VII. Thus, inclusion of these
1137
-------
materials as COCs for F034 is clearly contrary to'EPA's
methodology for selecting the LDR parameters and is arbitrary
and capricious. RECOMMENDATION: Owners and operators, as well as
regulated entities involved in wood treating site remediations, ' .
have extensive knowledge regarding the preservatives used at '
their sites. As such, it makes little sense-to expend valuable
resources to analyze for constituents that cannot be present as
a result of the preserving process. " '
Beazer believes that generator knowledge of the current or past
site operations is sufficient to satisfy Part 262 requirements and
that the only result of adding the metal constituents to the F034
LDR will be the unnecessary analytical costs of proving what is
already known. Beazer requests that EPA delete arsenic and
chromium from the F034 LDR in the final rule. . , -
"",> j '
RESPONSE . .... -. /
EPA is not persuaded by these comments. Arsenic and chromium are identified
as hazardous constituents under the UTS and 6DAT lists. EPA relies on these lists and other
information to select hazardous constituents for regulation under the Land Disposal Restrictions
(see Final BOAT Background Documents for Universal Standards (Volume A - Nonwastewaters
and Volume B- Wasetwaters), July 1994, and Final BDAT Background Document for Quality
Assurance / Quality Control Procedures and Methodology, October 23\ 1991). Further, these
constituents are also identified as hazardous constituents of concern supporting the listing of
F034 (see 55 FR 50450), Listing Background Document for Wood Preserving Wastes, and
Appendix VII, under 40 CFR 261). Simply put, EPA believes that treatment of these toxic
metals, which are known to be present in these wastes in concentrations high enough to support
listing, is necessary to minimize the threats posed by land disposal of these wastes. EPA is
promulgating, therefore, UTS limits for arsenic and chromium (total) -as proposed.
1138
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DCN PH4P023 . -
COMMENTER 'BeazerEast
RESPONDER JLABIOSA
'SUBJECT WOODS , ; . . -
SUBJNUM 023 . ; ' . . ''..'
COMMENT .C. The Proposed LOR for Hazardous Waste No. F035 Should
Not Include Vitrification.-1. Stabilization'should be BOAT for '.'
F03 5. EPA is. proposing that F035 be treated using .vitrification
tomeetLDRs. Review of the ROD Summary .reveals that slag |-
vitrification has not been specified in any of the 37 wood
treating site RODs evaluated by.Versaf. To Beazer's knowledge,
only one facility in the United States - Marine Shale ,. . '
Processors ("MSP") of Morgan City, Louisiana - utilizes
vitrification in a tested, full-scale process. MSP's future ,
regulatory status, however, remains in question. Currently, MSP
is appealing EPA's rejection of MSP's Part B interim'status
boiler and industrial furnace permit. Due to the uncertain
nature of MSP's regulatory status and potential future lack.of
any other vitrification facility, vitrification is not an
"available" or appropriate treatment technology. Vitrification
was chosen for immobilization for arsenic presumably because ,
conventional stabilization of arsenic can be somewhat
problematic. As presented at the June 1995 AWMA National
Meeting, studies by EPA's RREL on stabilization have shown that
-'" . the variable solubility of arsenic in high and low pH ranges is
easily overcome by treatability testing and proper pH control of
the cement/lime mixture in the field. In this study, EPA .
* successfully stabilized 13,000 cubic yards of arsenic soils
using conventional stabilization techniques. Stabilization of
arsenic wastes is much more controllable than thermal processes
because arsenic has been shown to volatilize in high temperature
atmospheres such as an incinerator or slag furnace. The
treatment alternatives specified in the Proposed Rule will .
transfer arsenic to a vapor stream where it is not accounted for
as closely. See Table 3-B, Data Requirements for Thermal
Desorption, in EPA's Presumptive Remedies for Soil, Sediments,
and Sludges at Wood Treater Sites Quick Fact Sheet (Draft-Nov.
1994) ("[vjolatile metals (As, Cd, Cr, Pb, Zn) vaporize and are
difficult to, remove from emissions:") The complexity of arsenic
volatility is also noted ini EPA's Summary of Generation,
Disposal, and Treatment Practices for Wood Preserving Wastes
F032, F034, and F035 (SAIC, May 1990). The SAIC document notes:
"[b]ecause arsenic volatilizes at high temperatures, .
1139
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incineration may not be an applicable treatment for F032 or F034
wastes contaminated with arsenic." The arsenic volatility ' .
process limitation is applicable to both vitrification and \ .
incineration and should be addressed by. the EPA before the,
Proposed Rule is finalized. Moreover, vitrification technology
is more complicated than portrayed in the Proposed Rule. . '
Vitrification of arsenic wastes may require two additional - ,
treatment steps not specifically identified in the Proposed
Rule. These additional steps are described in EPA's
Vitrification Technologies for Treatment of Hazardous and '
Radioactive Waste Handbook (May 1992). The Vitrification ,
"" Handbook notes: "[cjertain waste feeds'may require chemical or ' -
thermal pre-treatment to convert arsenic oxide to less volatile
forms before vitrification..." Vitrification Handbook, p. 4-7. ;.
The Handbook explains that the process required is to convert
the arsenic to a calcium oxide in another thermal process and
. v then re-introduce the thermally treated mixture into the slag
furnace. Id. This process is notably more complex than ,
indicated in the Proposed Rule and further supports the use of .
the much less complex, conventional cementitious stabilization
methods for arsenic wastes. Finally, EPA's Presumptive Remedy
document does not acknowledge the use of vitrification as a , '
candidate immobilization technique. Rather, it specifically
identifies "cementitious materials, including Portland cement,
fly ash/lime, and fly ash/kiln dust" as the solidification
methods. RECOMMENDATION: ;
EPA should propose stabilization as the BDAT for arsenic based on
a lack of demonstrated and available" full-scale vitrification
facilities". Stabilization of arsenic in wood treating wastes has
been proven by EPA to be effective and has been previously selected
by EPA as a presumptive technology for treating arsenic in
F035 wastes. EPA should avoid the inevitable confusion that will
arise in the field as a result of the conflicting programs and .
promulgate stabilization as BDAT for the F03 5 LDRs. ' ,
RESPONSE . , . ' ' '
v V
. . EPA has stated in the preamble tiiat vitrification represents BDAT for arsenic
since the proposed UTS is based on the performance of slag vitrification on arsenic in mineral
processing copper smelting dust. Also, EPA has .indicated in the Phase 4 proposal that
stabilization can also meet the proposed UTS limits for arsenic. (60 FR 43681 and 61 FR 2359)
Because EPA is establishing a numerical limit under the 40 CFR 268.40, other treatment
tecnologies capable of achieving the arsenic UTS limits, other treatment technologies capable of
; 1140
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achieving the.numerical limits are not prohibited except for those that may constitute
impermissible dilution or land disposal. r
1141
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DCN PH4P023 .
COMMENTER BeazerEast ,, _
RESPONDER JLABIOSA , :
SUBJECT WOOD3 , ,
SUBJNUM 023 '
COMMENT 2. The UTS forF035 nonwastewaters
should be based on leachate concentration. EPA has established
vitrification as BDAT for arsenic and stabilization as BDAT for
chromium. 60 Fed. Reg. 43681. EPA has proposed that each ,'
constituent proposed for regulation in F035 (arsenic and
chromium) comply with its applicable UTS in the treatment
standard table at 40 C.F.R. § 268.40 as a prerequisite for land
disposal. 60 Fed Reg. 43680. However, the UTSs for chromium
and arsenic at 40 C.F.R. § 268.40 are designated as leachate
levels, whereas, the UTS for chromium and arsenic in F035 as
proposed are total concentrations. 60 Fed. Reg. 43682. Beazer's
experience indicates that the proposed UTSs for chromium and
arsenic cannot be achieved with the specified immobilization
technologies. Immobilization technologies are not designed to
reduce total concentrations of metals in the waste, so the F035
LDR as drafted, cannot be met. In studies by EPA's RREL/ORD,
13,000 cubic yards of arsenic soils at the Selma Wood Treater
CERCLA site were successfully immobilized using conventional
.; stabilization techniques. In the Selma site full scale
stabilization study performed by EPA's RREL/ORD, leachable
standards for the metal constituents were specified in the ROD
in lieu of total concentration standards. Further, the study
addressed the use of leach tests other than TCLP, such as
Synthetic Precipitation Leachate Procedure ("SPLP") (pending
SW846 Method 1312) and distilled water leach. Beazer supports
the use of these more appropriate leach tests. EPA's RREL/ORD
researchers have shown that the variable solubility of arsenic
in high and low pH ranges is easily overcome by treatability
testing and proper pH control of the cement/lime mixture in the
field. The alternate leach tests noted above reduce the
incentive of remediation contractors to create a less
environmentally-sound stabilized mixture. The misguided
incentive created by the TCLP test method is that by
deliberately raising the pH of the stabilized waste, the,
contractor ensures that, when the acid is added in the TCLP test,
the resultant pH of the test material falls into the mid pH
range where the arsenic is not water soluble. Thus, the
stabilized waste passes the TCLP at the deliberately elevated pH
1142
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level. However, because the pH of,the stabilized.waste is '
. ' elevated, it is now in the range of higher solubility in water. ' (
. This pH management for stabilized arsenic wastes actually ' ,
. results in a waste that leaches more in a natural water. . ,
- environment than it does iri the TCLP acid leach test. The . ' .
^alternate leach procedures discussed above would mitigate the . ' ' ' '
incentive to manipulate the treatability testing and result in a . "
' more environmentally protective means of managing the waste. .
RECOMMENDATION: ' . . , . _ ;
. EPA must revise the UTSs for the metal .constituents to a leachable
standard for all metals. Further, Beazer recommends EPA consider
. the use of the SPLP or distilled water leach procedure
' ' '
RESPONSE ' : , ' -\ I ' ,'
' ' ' ' '. ' 1 ' - .
The commenter is presumably referring to the proposed UTS for metal
constituents in nonwastewater forms of F032, F034, and F035. EPA is promulgating UTS for
these metals as proposed. As indicated in the preamble of this final rule and the Final BOAT
Background document for F032, FQ3'4, and F035, compliance with the concentration of metals in
nonwastewater forms shall be measured in leachate extracts of grab samples, as measured by the
TGLP analyses. Since EPA is promulgating treatment limits, other treatment technologies are
not prohibited except for those that may constitute impermissible dilution. v
/..' . . '' - \ '
For wastewater forms of F032, F034, and F035, EPA is promulgating as
proposed. Compliance is determined by measuring the prescribed concentrations for chromium
and arsenic constituents in composite waste samples, as measured by total constituent analyses..
....''' . ' > '- " . "' ' ' .:
. The commenter has also asked EPA to consider the use of the SPLP or distilled
water leach procedure in lieu of the TCLP to 'ensure that the stabilized material is truly riot
leachable in its final disposal environment This commenter's proposal is beyond the scope of
the, UTS promulgated today. In addition, EPA lacks data describing how equivalent or superior
SPLP. methods are over TCLP in identifying stabilized metals. As a result, the commenter
should 'Consider a rulemaking petition to the Administrator regarding such test method
performance and its applicability to hazardous wastes ban from land disposal practices pursuant
to the provisions in §§260!20 and 260.21. , .
1143
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DCN PH4P113 - . .
COMMENTER Chemical Manufacturers Association '
RESPONDER JL '
SUBJECT WOOD3 -',,..
SUBJNUM 113 , v ,-..'-,
COMMENT
B. EPA should allow concentration-based as well as
technology-based criteria to satisfy BDAT for metals in
nonwastewater forms of F032,F034, and'F035. . '
In the preamble, EPA indicates that for metal in nonwastewater
forms of F032, F034, and F030, stabilization is BDAT for chromium
(total), and that vitrification is BDAT for arsenic. Use of the
word "is" and not the phrase standards ".:. are based on" implies
that the Agency intends to allow only the use of these specific
technologies to treat these constituents to levels below which
these wastes may be land disposed. However, the regulatory
language in the table at 268.40 indicates that the nonwastewater
standards for arsenic and chromium are numerical standards
CMA has commented in the past that it generally favors .
concentration-based treatment standards for BDAT and that it
supports the allowance of technology-based standards as
an alternative to, and not as a replacement for,
^ concentration-based standards. We maintain this position. Although
the Agency and CMA may not currently be aware of technologies
other than stabilization and vitrification that could be used to
treat for chromium and arsenic in the wastes described above, we x
favor the flexibility afforded by a concentration-based standard
which would allow any technology that can meet these levels as an
alternative. CMA requests that the preamble language be modified to
clarify that any technology that can meet the levels indicated in
the table may be used.
In addition, EPA is proposing F032 wastewater and nonwastewater
standards that would require meeting a concentration that does not
exceed 1 ppb (or 1 ug/kg) for all the PCDD and PCDF homologue and
isomer constituents proposed for regulation for F032 wastes. Even
if a 1 ug/kg level is achievable for PCDD and for PCDF, analytical
limitations may preclude UTS levels this low.
Normally when EPA sets treatment standards for a waste
constituent, a procedure is followed in which both an "accuracy
correction factor" and a "variability factor" are applied to the
concentration of the constituent observed in the treatment data
that supports the standard. See, Final Best Demonstrated Available
Technology (BDAT) Background Document for Universal Treatment
1144
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Standards Volume A: Universal Treatment Standards for Wastewater .
Forms of Wastes, 52 (July 1994). The accuracy correction factor is
1 used to account for analytical limitations in the available ' .
, treatment performance data, and the variability factor is used '
to correct for .variations in waste, treatment, sampling, analytical.
techniques and procedures, and other factors that affect treatment ' ,
' -performance. ."'/' "' ~
However, we are not sure if EPA accounted for variability and.
accuracy in setting the universal treatment standards for ' ", .'
nonwastewater forms of these organic wastes We urge EPA to do so.
.; As CMA has previously written in its July. 9,1993 comments on. the
May 24,1993 Interim final rule on land disposal restrictions for : ;,
ignitable and corrosive characteristic wastes whose treatments
Standards were vacated, organic wastestreams are not easily .
analyzed for constituents at very low concentrations. CMA ' '
(reiterates its previous recommendation that EPA explicitly states , ...
that, given approved test methods, nondeductibie levels of , .
constituents are equivalent to zero concentration and should also
be applied this the setting of UTS levels. - , . ' .
RESPONSE
i » ' ! ' r ' -
' ' ' <
' ' ' ' ',-?..- V
. The commenter raised four issues and EPA's responses to such comments
follow. ' . ,
below: . '..- / i ._'"' \ ,
', . ' ' '
1. .Clarification that EPA is setting numerical limits for the regulation of Arsenic
arid Chromium (total) in wasfewater and nohwastewater forms of F032.
''''.' , . - ' t '
-> EPA is clarifying in today's final rule that EPA is promulgating UTS limits for
the regulation of Arsenic and Chromium (total) in F032, F034; and F035. Since EPA is
establishing UTS limits that are expressed as maximum concentrations of these metals allowed
for land disposal, the use of any treatment technologies capable of meeting the UTS limits is not
prohibited except for those that may constitute impermissible dilution.
2. . ; "Analytical Difficulties*' may preclude the establishment of UTS limits for F032.
''- ' -.'' \
EPA's lacks data from the commenter to assess what kind of technical
difficulties will be encountered during the analysis of F032 wastes. .
After reviewing the characterization data of the Penia Group, the reported ,..
/'.. ' ' 1145- . . '-, .-'-."'
-------
analytical difficulties, and F032 Characterization studies; EPA has concluded that the reported
"difficulties" appear to represent more the unfamiliarity of chemists performing the chemical
analyses with D/F recommended test methods rather than real flaws in the test method. EPA
believes further that the alleged "difficulties" can easily be overcome by routine laboratory clean-
up procedures and the use of appropriate solvents and other laboratory calibration techniques.
EPA has enhanced, therefore, the discussion of these recommended procedures .and calibration
techniques in the BOAT Background Document. Also, see the Administrative Record
supporting today's Phase 4 final rule for the technical document titled: Background Paper
Addressing Technical Issues Related to Analysis ofFQ32 Wood Preserving Wastes for Dioxins
and Furans, datedJune 19,1996.
3. . - . . EPA should correct the D/F limits for accuracy and variability.
Several commenters were correct in pointing it out that EPA did not correct the
proposed UTS "limits for D/F in F032 with accuracy and variability factors, as typically done in
the calculation of treatment standards of other hazardous constituents prohibited from land
disposal. EPA did not adjust the proposed UTS limits for D/F constituents, nor EPA is doing so
in today's final rule, as explained below.
The UTS treatment limits are based on combustion technologies that EPA
believes will meet the proposed UTS limits for D/F in F032 as long as the combustion of F032 is
conducted in a device that is well designed and well operated. EPA concluded in the Solvents
and Dioxins rule that a six-nines Destruction and Removal Efficiency (DRE) combustion device
can routinely achieve the promulgated limit (see January 18,1986, 51 FR (1733-1735)). Based
on the performance of a four-nines DRE rotary kiln incinerator burning F024, EPA believes that
a four-nines DRE unit that is well designed and operated can also meet,the promulgated UTS
limits for D/E (see June 1,1990, 55 FR (22580-22581). Although none of the submitted
comments or data appear to support the revisions to D/F limits proposed by the commenters,
EPAmay revisit this issue in a separate rulemaking if new data become available.
, ' t
However, EPA points out to the commenter that EPA^generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such treatment
limits allowances as the analytical detection limit (compliance) alternative. Facilities seeking the
disposal of such combustion ashes must satisfy the provisions in the 40 CFR 268.40 (d) (1)
through (3) and 268:7 (b) (5) (iii). (Also, see June 1,1990, 55 FR (22541-22542).)
EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to comments
from the Penta Task Force and the American Wood Preserving Institute, the EPA has also
proposed and is promulgating in today's rule an alternative compliance treatment standard that
sets combustion ("CMBST") as a treatment method for D/F constituents inF,032. .
1146
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The revised "CMBST" compliance alternative limits the availability of
"CMBST" to those combustion devices in compliance with applicable combustion standards in
the 40 CFR 264 , Subpart O, or 40'.CFR 266, Subpart H. F032 wastes combusted in combustion
devices operating under 266 or 264 do not. have to monitor the concentrations of D/F left behind
1 in combustion residues. However, the facilities'must meet UTS numerical limits applicable to ,
each organic and metal constituent regulated in F032 as a prerequisite to land disposal.
It should be emphasized that facilities seeking the combustion of F032 in an
incinerator regulated under a 265 Subpart O do not qualify for a "CMBST" treatment standard.
F032 residues arising from 265 units must meet the applicable UTS numerical limits for each
regulated D/F constituent as a prerequisite to land disposal.. .
4.
Proposal that "nondetection limits" are equivalent to zero detection.
EPA believes the commenter is concern that a detection limit in a treated waste
above a UTS numerical limit may fail to meet the'applicable treatment standard even if the
targeted analyte is below the detection limit. EPA believes that a "nondetection limit" is not
feasible way to address this concern. EPA believes that a constituent shown below a particular
targeted detection limit means that the constituent is either destroyed by the employed
technology, masked in the waste residue due to matrix interferences, or it could be measured in
concentrations below the targeted detection limit. As a result, it could be possible that the
constituent of LDR concern is still above the applicable UTS limit should the.targeted selection
limit be above the UTS promulgated limit. Therefore, EPA believes that a facility could still be
deemed in violation of the applicable limit if EPA detects such constituent above its UTS limit.
' " -
However, EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such treatment
limits allowances as the analytical detection limit (compliance) alternative. Facilities seeking the
disposal of such combustion ashes must satisfy the provisions in the 40 CFR 268.40 (d) (1) .
through (3) and 268.7 (b) (5) (iii). (Also, see June 1,1990,55 FR (22541.-22542).) Another
option available to the commenter is to verify if the waste of concern is different from the one
supporting the UTS limit and seek from EPA a treatability variance pursuant to provisions in the
40CFR268.44. . '. , '
1147
L
-------
DCN . PH4P039
COMMENTER AWPI . \
RESPONDER JL .
SUBJECT WOODS . '
SUBJNUM 039
COMMENT EPA is proposing to apply Universal Treatment Standards (UTSs)
to wood preserving wastes (F032, F034, and F03 5). AWPI submits '"
the following comments with respect to the proposed treatment
standards: PROPOSED LDR FOR F034 Each constituent that EPA is .
proposing for regulation in F032, F034, and F03 5 must comply
with its applicable UTS in the treatment standard table at 40
CFR 268.40, as a prerequisite for land disposal. Arsenic and -
chromium were not constituents proposed for regulation in"F034.
Testing for arsenic and chromium would be j ustified only if CCA
was used at a facility. COMMENT: The proposed LDR for F034
should not include arsenic and chromium as constituents of
concern. ' -
RESPONSE
The commenter is asking EPA to withdraw the proposed UTS limits for D/F in
F032 or to promulgate "incineration" as an alternative compliance treatment standard for D/F
constituents in F032. Based on F032 characterization data from the Penta Group, EPA has
determined that it is technically feasible to co-promulgate an alternative treatment standard of
combustion ("CMBST") and EPA has done so in today's final rule, (see EPA's preamble in
today's final rule, and the Final BDAT Background Document for F032, F034, and F035). Also,
EPA is promulgating UTS limits for D/F in F032, as proposed. The commenter also raised
several comments seeking EPA's withdrawal of the proposed UTS limits for D/F in F032 and .
for metal constituents in F034. EPA is addressing each of these comments below.
The commenter believes .that EPA's proposed limits for chromium and arsenic
inF034
are in error. The commenter points out that EPA has not proposed the regulation of chromium
and arsenic in F034. EPA is unclear what exactly this statement means since the proposed
preamble and the BDAT Background Document clearly identifies these two metal constituents as
proposed hazardous constituents for regulation in nonwastewater and wastewater forms of F034.
The commenter also adds that these constituents should only be regulated if F034 is generated
from a vessel that also generates F03 5.
EPA is not persuaded by these comments. Arsenic and chromium are identified
as hazardous constituents under the UTS and BDAT lists. EPA relies on these lists and other
information to select hazardous constituents for regulation under the Land Disposal Restrictions
(see Final BDAT Background Documents for Universal Standards (Volume A - Nonwastewaters
1148
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and Volume B-vWastewaters), July 1994, and Final BOAT Background Document for Quality '
Assurance / Quality Control Procedures.and Methodology, October 23,1991). Further, these
constituents are also identified as hazardous constituents of concern supporting the listing of-
F034 (see Listing Background Document for Wood Preserving Wastes, and Appendix 7 under 40
CFR 261). It is necessary to treat these toxic metals in order to adequately minimize the threats
posed by land disposal of these wastes. EPA is promulgating, .therefore, UTS limits for arsenic
and chromium (total) as proposed. ' ;' . .
.1149
-------
DCN PH4P039 ,
COMMENTER AWPI
RESPONDER JL , '
SUBJECT WOODS
SUBJNUM 039 ,
COMMENT PROPOSED LDRs FOR F035 AWPI is puzzled at EPA's
selection of vitrification as BOAT for arsenic., The Agency has
/ recognized the potential for arsenic to volatilize at high
~ temperatures. COMMENT: EPA should explain why it disregards this
potential problem before.recommending vitrification for arsenic
wastes. .The Agency should also explain why it disregards , .
stabilization when EPA has successfully used this technology for
arsenic at a wood treating site. AWPI is unaware of a single ~
full-scale vitrification facility and requests that the EPA *. . ^
identify the source for commercial vitrification. - .
RESPONSE . - '
" f' ....
The commenter is "puzzled" at "EPA's selection of vitrification as BDAT for
arsenic." The EPA is not recommending the use of vitrification of arsenic to meet the
promulgated UTS limits. EPA has stated in the preamble that vitrification represents BDAT for
arsenic since the proposed UTS is based on the performance of slag vitrification on arsenic in
- mineral processing copper smelting dust. EPA also notes that the potential for air emission from
' such slag vitrification studies were minimized by first converting arsenite to arsenate trioxide
(see BDAT Background Document for Arsenic/ Selenium Wastes, 1990). In addition, EPA has
indicated in the Phase 4 proposal that stabilization can also meet the proposed UTS limits for
arsenic constituents (see Final BDAT Background Document and final rule's preamble
discussion). Since EPA is establishing a concentration based number for the regulation of
arsenic in F034, other treatment technologies are not prohibited.
1150
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DCN . PH4P027 . .- ' . ' . ' , . ". -
COMMENTER Rollins Environmental ' -. - '.-'.' ,'
:RESPONDER JL ' :. ' ' . ' .
SUBJECT WOOD4 , ' - ' ...
SUBJNUM 027 ' '''--, ' - ..
COMMENT' , _ ' . , '. ' ' : , - .'
RES fully supports the treatment standards as proposed for F032, - ~
34, & 35.These standards reflect the use of the demonstratedly -.
.achievable Universal Treatment Standards (UTS),'and are protective .,
of human health and the environment. ' .
The Agency indicated that some commenters to the ANPRM of April, '
1991 were concerned about the prbposed.Dioxin/Furan treatment
standard for nonwastewater F032 wastes. The commenters expressed ' -,..
concern about the need to monitor Dioxin/Furan's in the treatment
residue, and about the available capacity to treat these wastes. We . .
' . contend the inclusion'of a Dioxin/Furan treatment standard for F032 - . ' '
is necessary to assure proper treatment of these wastes-ahd there '
is more than sufficient capacity available to provide this . ' :
treatment.' '. *' , . , ,' .:
Dioxins and Furans are present in Chlorophenolic formulations ' ,
which are'used in the process generating this waste. In addition,
if the treatment process for. these wastes is not properly operated . .; '
. and fully monitored, treatment of Chlorophenolics could actually . -".
, result in some 'Dioxin/Furan formation (a properly run and monitored . -
treatment process will not allow this reformation and can routinely
, meet the proposed Dioxin/Furan standards). A treatment standard for ,.
, Dioxin/Furan's will assure that F032 wastes are treated correctly , '
with proper treatment practices to destroy all organic ' l ; .
constituents.. Proper treatment includes destroy ing. '
the Dipxin/Furan's in the waste and preventing their reformation in -.'...-.'
the treatment process. Therefore, the Dioxin/Furan treatment
standard is needed to require treatment of all hazardous
constituents in-F032 wastes and.thereby meet the "minimize threat" ' . . ,
level required by RGRA. '
' ' ' . .
RESPONSE
. . ' - '". ' i ' "
» ' '
. EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032.- In riesponse to comments
from the Penta Task Force and the American Wood Preserving Institute, the EPA has also
proposed and'is promulgating in today's rule an alternative compliance treatment standard that
sets combustion ("CMBST") as a treatment method solely for-D/F constituents in F032.
1151 ,
-------
This alternative limits the availability of the-"CMBST" to those combustion
devices subject to combustion standards in 40 CFR 264 Subpart 0, or 40 CFR 266 Subpart H.
F032 wastes combusted in'combustion devices operating under these standards do not have to
monitor the concentrations of ,D/F left behind in combustion residues. However, the facilities
must meet UTS numerical limits applicable to every other organic and metal constituent .
regulated in F032 as a.prerequisite to land disposal.
It should be emphasized that facilities seeking the combustion of F032 in an
incinerator regulated under a 40 CFR 265 Subpart O do not qualify fora "CMBST" treatment
standard. F032 residues .arising from 40 CFR 265 units must meet the applicable UTS
numerical limits for each regulated D/F constituent as a prerequisite,to land disposal.
EPA also believes that.facilities operating a Part 265 incinerator that can
demonstrate to EPA that their combustion device operates in a manner that conforms to the
combustion controls achieved by Part 264 incinerators or Part 265 BIFs may qualify for the,
CMBST treatment standard pursuant to a treatability variance under 268.42(b). (See Final
BOAT Background Document for Wood Preserving Wastes F032, F034, and F035, April 15,
1997, and today's preamble discussion.) . . "
EPA disagress somewhat with the commenter's assertion that numerical
standards are needed for D/F. EPA is persuaded that permitted incinerators and BIFs need not
monitor these constituents. As set out in the preamble, these units are subject to controls on
combustion efficiency (BIFs.directly, and-incinerators through omnibus determinations) as well .
as controls on D/F emissions when operated in a manner conducive for D/F formation (under the
same authority). EPA believes these units will fully destroy D/F in the wastes. The Agency
believes it is justified, to assure the availability of capacity, to provide this modest compliance
accommodation. ^
1152
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DCN ' . .PH4P032 ' , , ' . ' ''..."'
COMMENTED Penta Task Force ' - ,
RESPONDER JL ' . ;
' SUBJECT WOOD4 : - . .
SUBJNUM 032 - -.
COMMENT ' - .
F. The Levels Of Dioxins/Furans In F032 Wastes Do Not Warrant
Separate Diokin/Furan treatment Standards.
To the extent EPA has concluded that the concentrations of
' dioxins/furans in F032 wastes are sufficiently high to warrant the
extraordinary measure of incineration in a six 9s unit,
that conclusion is unwarranted. Only acutely hazardous dioxin
containing wastes (i.e., F020-F023.F026, F027, and F028) are
required to be incinerated in a six 9s unit. But, as EPA1 s
analysis clearly, shows, the concentrations of dioxins/furans in
. F032 wastes iare some three to four orders of magnitude lower than -.. .
, the corresponding dioxin/furan concentrations in wastes designated
', as acutely hazardous..- See Tables attached to Labiosa Memorandum
Re:"Regulations of Dioxins in F032, and U242" (undated) (Dkt. No.
/ PH4P-S0128). ,
Moreover, there is a substantial likelihood that EPA has
' overstated the levels of,dioxins and furans in F032 wastes. '.
-. According to data in the Agency's possession, the average.
dioxin/furan,concentrations in F032 process sludges and residuals
, are 3.0 ppb for TCDDs, 1.0 ppb for PeCDDs, 2,000 ppb for HxCDD, 20
. ppb for TCDFs, 500 ppb for PeCDFs, and 3,000 ppb for HxCDFs. See
F032 BDAT Background Document, Table 3-8 at 3-56. But, these data
were culled from sampling of wood preserving sites during the
mid-1980s. See Background Document Supporting the Proposed Listing
of Waste from Wood Preservation and Surface Protection Processes,
, Vol. I, Table 1-2 at 1-4 (Dec. 19,1988). A number of significant
event shave occurred since that time that bring .into issue whether ' .
these older data reflect the dioxin/furan concentrations in F032
wastes currently generated at wood processing facilities.
The concentration of dioxins/furans in commercial
pentachlorophenol formulations have decreased substantially since . '
themid-1980s. In 1986, U.S. manufacture of '« .
pentachlorophenol became subject to comprehensive regulation under
the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA")"
which sets stringent limits on the levels
of hexachlorodibenzo-p-dioxiri ("HxCDD") in the pentachlorophenol
that is marketed in the U.S.A Settlement Agreement entered into
between EPA and the U.S. manufacturers of penta limits the HxCDD
1153
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content of each batch of pentachlorophenol released for shipment
to no more than 4 parts-per-million ("ppm"), and 2 ppm HxCDD for
the average of all batches released for shipment in any calendar
month. This limit in HxCDD content must be met without causing the
formation of any detectable amounts of 2,3,7,8-TGDD at a limit of
detection limit of no higher than 1 ppb. " .
U.S. manufacturers are also required to sample and analyze every
batch of pentachlorophenol released for shipment for HxGDD content. ,
An additional sampling and analysis for other dioxin/furan
contaminants are conducted once a month, or after 120 batches
of pentachlbrophenol has been-produced. The results of the analyses
are submitted to EPA's Office of Pesticide Programs in monthly :
reports. ' ; -
As a result of these U.S. requirements, U.S. manufacturers have
applied substantial resources to the investigation of penta
manufacture in relation to the formation of HxCDD in the
product. The HxCDD content of individual batches consistently meets
U.S. requirements with the average monthly HxCDD levels-of all
batches between 1.5 and 1.8 ppm. These reductions have been
accomplished by carefully optimizing the reaction parameters used
in penta manufacture so as to minimize to the extent practicable
the formation of HxCDD. As shown below, not only has the HxCDD
content of penta been minimized, but the concentrations of a
number of other dioxins/furans have been substantially reduced
These are summarized below: '
TCDD Content. The F032 BOAT Background Document reports that the
concentration of TCDD in technical grade pentachlorophenol ranges
from < 0.03. ppm to 18 ppm. F032 BOAT Background Document, Table
3-2 at 3-49. The attached table (Tab 2) set forth analyses of
penta produced by Vulcan during the period January 1989
through August 1994.8' As shown in the table, TCDD has not been
detected in Vulcan produced penta at the detection limit of 0.001
ppm. (Analysis of KMG-Bernuth's product gives comparable results.)
TCDF Content. The F032 BDAT Background Document reports that the
concentration of TCDF in technical grade pentachlorophenol ranges
from 0.01 ppm to 10 ppm. Id.,Table 3-2 ai 3-49. Vulcan's, analysis
of its penta product produced during the period January 1989
through August 1994 shows the absence of TCDF at the detection
limit of 0.001 ppm. See Table at Tab 3. (Analysis of KMG-Bernuth's
product gives comparable results.) ,
8 The data discussed above was collected in connection with
comments prepared on EPA's draft dioxin reassessment document in .
the fall of 1994. The comments covered the period January
1154
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1989 through August 1994 and these data are attached as exhibit to
these comments! .The composition of penta produced since August of
1994 are consistent with these data. " -
PeCDD/PeCDF Content: The F032 BDAT Background Document
reports that the concentrations of PeGDD in pentachlorophenol range -
from < 0.03 ppm to 100 ppm, and the concentrations of PeCDF range
from 0.03 ppm. to 40 ppm. Analysis of penta produced during the :
period January 1989 through August 1994 has not indicated
the presence of either PeCDD or-PeCDF at approximately the 0.005
. pprh'detection limits. See Tables at Tab 4. (Analysis of
KMG-Bernuth's product gives comparable results.) '- '
HxCDD Content.,The F032 BDAT Background Document reports that
the concentration of HxCDD in pentachlprophenol ranges from < O.Q3/
ppm to 1,000 ppm. As discussed above, and as-shown in the attached ,
tables (Tab 5), the HxCDD content of each batch of Vulcan-produced
penta is consistently below 4.0 ppm with the average monthly HxCDD
levels between 1.5 ppm and 1.8 pprn. (Analysis ofs . .
KMG-Bemuth's product gives comparable results.) >. . - '
HxCDF Content. The F032 BDAT Background Document reports that
the concentration of HxCDF in pentachlorophenol ranges from < 0.03
pprn to 90 ppm. Id. , ..' . . . .
The analysis of Vulcan-produced penta for the period January 1989
through August 1994 is set forth in the attached table (Tab 6).
That analysis shows that the concentration of HxCDF
in Vulcan-produced penta ranges from "Not Detected" (approximately
0.1 ppm detection iimit)to 13.4 ppm with the average HxCDF content
of product produced during the period at 1.7 ppm. (Analysis of
KMG-Bemuth's product gives comparable results.)
In sum* because the concentrations of dioxin and furan congeners
in pentachlorophenol formulation used at wood preserving sites has
sharply decreased over the years, the concentrations of these
constituents in the waste streams also would be expected to
have declined. '
Perhaps of even greater importance, the dioxin concentration in
the F032 wastes is expected to be only a fraction of that found in
the commercial product. Typical penta wood treatment solutions
contain roughly 5-7% penta by weight, or 50,000-70,000 ppm. With
respect to HxCDD, for example, commercial penta contains an average
HxCDD content of 2 ppm, or 0.0002%. As such, the HxCDD content of a
typical penta wood treatment solution is roughly 100 to 140 ppb. .
Because process residuals generally may contain only about
one-tenth of the pentachlorophenollevels in the treating
solutions, it is highly, likely that the HxCDD content in F032 .
1155
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' process wastes would be no more than 10.to 14 ppb. and not the
2,000 ppb estimated by EPA. ' * " " .
iMoreoveir, operating practices within the wood preserving industry
have changed since the data supporting the F032 listing rule were - v
collected. In the past, most of the facilities used - t x .
high temperatures in the treating process. These temperatures could . '
have led to the formation of dioxins and furans from chJorophenols fl -
and'other didxin and furan precursors in the treating solutions and
may have accounted for the elevated dioxin/fufan levels in the EPA
data. By contrast, many wood preserving facilities now operate
their processes at ambient temperatures.(For those facilities that.
currently operate at higher than ambient temperatures, the .
facilities control their process parameters to a far greater degree
than in the past.) In addition, many of the wastes that were . .
analyzed by EPA in'the mid-1980s i.e. drip track samples . -
and contaminated soils and sludges'from tank farm areas and around
process areas--were reflective of operating practices that are no "
longer used at wood preserving sites.
-v In short, there is a firm basis for concluding that the dioxin
concentrations in F032 wastes are significantly lower than that -~ , ' .
estimated by EPA. The Penta Task Force has recently commissioned a
sampling arid analysis of some two dozen process waste streams from
six different wood preserving sites. The results of that analysis
will be presented to the Agency shortly. We urge EPA to-defer-a
decision on the proposal until it has had an opportunity to review
these new data. . A
RESPONSE . :
. The commenter believes that the concentrations of dioxin and furan (D/F)
constituents in F032 may not warrant regulation under the land disposal restrictions. The
commenter points out that EPA's characterization data on untreated F032 describes the
concentrations of D/F of past formulation practices and that current practices generate F032
wastes with far lower concentrations than those originally reported by EPA during the listing of"
F032 as a hazardous waste in 1988. The commenter also submitted data on the characterization
of Pentachlorophenol (PCP) formulations as well as estimates of what concentrations D/F may
reach in F032. In a separate report, the commenter submitted characterization data describing .
several waste streams that the commenter described as F032 wastes (see BDAT Background
Document for this information.)
' ' * /
In response to comments from the Penta Task Force and the American Wood
Preserving Institute, the EPA has also proposed and is promulgating in today's rule an alternative
compliance treatment standard that sets combustion ("CMBST") as a treatment method.for D/F
,1156
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constituents in F032. EPA is.also prqrnulgating^treatment limits for D/F as proposed.
EPA has promulgated, however, a revised "CMBST" compliance alternative
which limits the availability of the "CMBST" to those combustion devices in compliance with .
"applicable combustion standards in the 40 CFR 264 Subpart O, or- 40 CFR 266. F032 wastes
cdmbusted in combustion deviees operating under 40 CFR 264 or 266 do not have to monitor the
concentrations of D/F left behind in combustion residues. However, the facilities must meet
UTS numerical limits"applicable to each organic and metal constituent regulated in F032 as a -
prerequisite to land disposal. ! ' ' >. '.
11 . ' "" ' ' ' -
' The data submitted by the Penta Group consist of characterization data
describing PCP.commercial grades (see monthly averages of PCP commercial.grade from vats in
Tables 1 through 6 ( attached to the original comment), a characterization study of several F032
waste streams at six wood preserving facilities, and a bench-scale combustion study on several
F032 wastes .-All these data are summarized in Appendix K of the Final BDAT Background
'Document for Wood Preserving Wastes F032, F034, and F035, April 15,1997, and they are not
' repeated here. . , ' , . - _ .
" "\ ,
After reviewing these data, EPA was persuaded by the commehters that the .
^steps taken by"the manufactures for formulating the commercial grade's of PCP do appear to have
diminished the loadings of PCDD and' PCDF in F032 wastes to levels far below the one
characterized by EPA during the sampling data collected by EPA during the early 70's . EPA
was not persuaded, however, by the submitted .data that all the constituents proposed for .
regulation in F032 are present in concentrations below the 1 ppb proposed for the regulated
PCDD and PCDF in F032 wastes. The characterization data from six plants suggest that Hx-
CDD and Hx-CDF, Te-CDD, .and Pe-CDF can be found at levels well above the 1 ppb. The
commenter believes, however, that the reported values for Te-CDD and Pe-CDF (some samples)
may have been false positives from the analytical instrument employed. Another peculiarity of .
the data is that all the sampled facilities but one did not characterize for each one of the proposed
PCDD and 'PCDF constituents proposed for regulation in F032 filter press cake wastes. The one
facility who tested for PDDD and PCDF did report up to 2 ppb for Te-CDD (according to the
commenter - a false positive result), 190 ppb for Hx-CDD, and 560, ppb for Hx-CDF.
"**'" " ' ' ' . . ' v
" / ' . \ . ' ' ,
It has been EPA experience through out the land disposal program that
hazardous constituents of concern that are within the same or up to one order of magnitude as
the detection limit of an analytical test method are most sensible to masking by other
constituents in percent levels unless appropriate corrective and clean up measures are followed
to remove the constituents of analytical concerns from the other interfering constituents. EPA
has provided guidance in today's BDAT Background Document on two EPA SW 846 Test
Methods (namely, SW-846 Method .8280A (proposed in the Update III, July 1995) and Method
8290 (Update II to the Third Edition of SW -846, December 1994) that EPA believes will enable
wood preserving facilities to overcome the potential interferences that the Penta Group may have
encountered.,, . ''' . ';./ . ...;'
j i . . ~ * '
1157
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Other point made by the Penta Group is that another commercial'manufacturer
of PCP is believed to have similar trends for the concentrations of PCDD and'PGDF in PCP oils
and in F03.2 wastes to the one shown by the Penta Group's F032 characterization study.
However, no characterization data on such other wastes were made available to EPA. Another
point made by the Penta Group is that it is believed that past listing data showing high
concentrations of all the PCDD and PCDF proposed for regulation may haye been the result from
past practices for treating wood products at high temperatures. The,commenter felt such practices
have'been abandoned by the industry and that most wood treaters have switched to formulation
processes that emphasize ambient temperatures. However, the comrnenter cannot assure with
* certainty whether this is standard practice at all wood treater facilities in the market.
Because of the uncertainties found with the Penta Group characterization data
with regard .to Te-CDD, Te-CDF arid Pe- PCDD, EPA cannot support a determination that these
constituents are not present in F032. Based on the available data from .the listing of F032, EPA
has decided to retain the list of constituents proposed for regulation and to promulgate treatment .
standards as proposed. ".'.''" '
1158
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DCN. PH4P039 - ' . - " - -
COMMENTER A.WPI ' .*'...' ' .-
RESPONDER JL " -
SUBJECT WOOD4 ... ' . '
SUBJNUM .039 ' . - . . - . .
COMMENT EPA's F032 TREATMENT STANDARDS DO NOT
' '-- ' REFLECT CURRENT DATA."EPA's ' ' . . / " <'
' treatment standard for F032 is based on data that do not reflect the
current formulation of pentachloropheriol. The levels of dioxins '
and rurans in commercial pentachlorophenol formulations have
been reduced significantly since the mid-1980s. In 1986, EPA
set limits on concentrations of impurities in pentachiorophenol .
and required that manufacturers submit reports on a monthly
basis. The results of over five years of reporting for one. , "
manufacturer are enlightening:;DATA ARE NOT REPRODUCED HERE
Clearly, the data on technical grade pentachlorophenol used by,
" the EPA in support of .the F032 listing are hot representative of ".
. the current formulation of pentachlorophenol. With the decrease
in the concentrations'of dioxin and furan congeners in the ' .
- preservative treating formulation, it is logical to expect a-, . .'*-,.
corresponding decrease in dioxin and furan constituents in the .
waste streams. Vulcan Chemicals, an AWPI member company and a
manufacturer of pentachlorophenol for the treating industry,
will be submitting analytical data from six different wood
.preserving sites in an effort to .provide contemporary dioxin and .
furan data in F032 wastes. COMMENT: AWPI urges the Agency to
defer its decision oh this proposed rule until it has reviewed
1 the new data.. ... -.
RESPONSE ' '' .'- , '.' ' ' ; . --' ' . '
1. . Does EPA's Proposed F032 Treatment Standard fail to reflect current data on
the treatment of F032? " >.
The commenter feels EPA has disregarded available data on the treatment of
F032. Presumably the commenter is referring to the treatment of F032 contaminated soils since
wood preserving wastes have been land disposed without treatment. ' .
' \ . " i .
" EPA has reviewed existing practices for the treatment of hazardous wastes
believed as difficult to treat as F032. EPA has also examined available 1992 data on the
treatment of soil contaminated with F032. Based on these information, EPA has determined that
the treatment data supporting UTS represent the performance of treatment technologies that are
Best Demonstrated and Available for wood preserving wastes. EPA does not believe that the ,
1992 data regarding the treatment of F032 soils support revision of the proposed UTS limits
1159
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.. since on most instances the technologies show inferior performance'to the one achieved by UTS
based technologies. Further, EPA does not have to set treatment standards that can be met by
other or all available treatment technologies. (See Final BOAT Background'Document for Wood
Preserving Wastes F032, F034, and F035.) As a result, EPA is promulgating UTS limits for .
F032 as proposed. , , ' .
2. / EPA's characterization data on F032 do not reflect existing waste generation
practices. .
EPA has received-new data on the characterization of F032 wastes'and has
. incorporated in the' Final BDAT Background Document for Wood Preserving wastes this new
information. However, EPA has not been persuaded by these new data that the proposal for
setting treatment standards for D/F in F032 should be withdrawn. This is because the D/F
constituents proposed for regulation are still present in F032 at concentrations well above the
UTS limits proposed for regulation. These constituents also resist environmental degradation
mechanisms and thus, long-term threats to the human health and the environment will not
necessary be minimized if allowed to be disposed of untreated. EPA has thus concluded that
these constituents are still of regulatory concern. As a result, EPA is promulgating the proposed
UTS limits for D/F. EPA is.also promulgating an alternative compliance treatment standard of
CMBST for D/F. _ , ' :
The data submitted by the Penta Group consist of characterization data
describing PCP commercial grades (see monthly averages of PCP commercial grade from vats in
Tables 1 through 6 (attached to the original comment), a characterization study of several F032
waste streams at six wood preserving facilities, and a bench-scale combustion study on several
F032 wastes . All these data are summarized in Appendix K of the Final BDAT Background
Document for Wood Preserving Wastes F032, F034, and F035, April 15,1997, and they are not
repeated here. ' ..
After reviewing these data, EPA was persuaded by the commenters that the
steps taken by the manufactures for formulating the commercial grades of PCP do appear to have
diminished the loadings of PCDD and PCDF in F032 wastes to levels far below the one
characterized by EPA during the sampling data collected by EPA during the early 70's '. EPA
was not persuaded, however, by the submitted data that all the constituents proposed for
regulation in F032 are present in concentrations below the 1 ppb proposed for the regulated
PCDD and PCDF in F032 wastes. The characterization data from six plants suggest that Hx-
CDD and Hx-CDF, Te-CDD, and Pe-CDF can be found at levels well above the 1 ppb. The
commenter believes, however, that the reported values for Te-CDD and Pe-CDF (some samples)
may have been false positives from the analytical instrument employed. Another peculiarity of
the data is that all the sampled facilities but one did not characterize for each one of the proposed
PCDD and PCDF constituents proposed for regulation in F032 filter press cake wastes. The one
facility who tested for PDDD and PCDRdid report up to 2 ppb for Te-CDD (according to the
commenter - a false, positive result), 190 ppb for Hx-CDD, and 560 ppb for Hx-CDF.
1160
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It has been. EPA experience through outthe land disposal program that
hazardous; constituents of concern that are within the same or up .to one order of magnitude as
the detection limit of an analytical test method are most sensible to masking by other
constituents in percent levels unless,appropriate corrective and clean up measures are followed
to remove the constituents of analytical concerns from the other interfering constituents. -EPA
has provided guidance in'today's BOAT Background Document on two EPA SW 846 Test
Methods (namely, SW-846 Method 8280A (proposed in the Update III, July 1995) and Method
8290 (Update II to the Third Edition of SW -846, December 1994) that EPA believes will enable
wood preserving facilities to overcome the potential interferences that the Penta Group may have
encountered. i , '.''.' "'''.
.. Other.pqint made by the Perita Group is that another commercial manufacturer
of PC? is-believed to have similar trends for the concentrations of PCDD and P.CDF in PCP oils -
and in F032 wastes, to the one shown by the Penta Group's F032 characterization study.
However, no characterization data on such other wastes were made available to-EPA. Another
point made by the Penta Group is that it is believed that past listing data showing high
concentrations of all the PCDD andTCDF proposed for regulation may have been the result from
past practices for treating wood products at high temperatures. The commenter felt such practices
have been abandoned by the industry and that most wood treaters have switched to formulation
processes that emphasize ambient temperatures. However, the commenter cannot assure with
certainty whether this is standard practice at all wopd treate'r-facilities in the market. , '.
Because of the uncertainties found with the Penta Group characterization data
with regard to Te-CDDj te-CDF and Pe^- PCDD, EPA cannot support a determination that these
constituents are not present in F032. Based on the available data from the listing of F032, EPA
has decided to retain the list of constituents proposed for regulation and to promulgate treatment
standards as proposed. ' ' <,-,-.. -.- '
1161
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DCN PH4P048 ' " -'%-.
COMMENTER Chemical Waste Management
RESPONDER PSB ,
SUBJECT WOOD4
SUBJNUM 048 .
COMMENT ' ' . . ' '
The EPA is proposing to apply Universal Treatment Standards (UTS)
to wood preserving wastes F032, F034, and F03 5.
CWM has several comments on the proposal as it presently exists.
The first comment is a clarification with regard to the specific
-. BOAT standards that apply to F032, FQ34, and F035 waste streams, '
- Currently, there are differences in the preamble table (See 60 Fed.
Reg. at 43,682) and the BOAT standards reflected in proposed 268;40
(See 60 Fed. Reg. at 43,696). The Agency's October 25, 1995,
correction to this proposed rule(60 Fed. Reg. at 54,645) indicates ,
that the table contained in the preamble contains the correct list
of proposed regulated constituents, while the 268.40 table is
incorrect. CWM understands this to mean that F032 is the only waste
.stream to have dioxins and furans proposed as BOAT, and that F035
has no organic constituents proposed as BOAT. The.Agency needs to
ensure that this is accurately reflected in the final rule so as
to avoid the confusion caused by these errors in the proposal.
CWM's second comment on this proposal involves the Agency's
proposal to regulate dioxins and furans in F032. CWM is concerned
by the Agency's statement that "EPA has identified one commercial
facility currently permitted to combust wastes that may have PCDD
and PCDF constituents with concentrations one to two of magnitude
higher than those levels found in F032" (See 60 Fed. Reg. at
43,682). The statement indicates to CWM that the Agency is intent
on regulating F032 wastes as an acute dioxin waste. If this is the .
case CWM believes that this contradicts the Agency's capacity
analysis which indicates that there is sufficient
incineration capacity for wood preserving waste streams. CWM
believes that F032 wastes should not be regulated as an acute
dioxin waste. If it is not regulated as an acute dioxin waste then
CWM agrees that there is existing incineration capacity available.
CWM requests that the Agency clarify this in the final rule.
. Furthermore, it is not clear to CWM how the Agency's
Combustion Strategy will alleviate this problem as the Agency
states it will. The establishment of stricter dioxin and furan
requirements on combustion facilities will still not alleviate the ,
dioxin myth in the eyes of the public that has been perpetuated by
the Agency. . ,
1162
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PCN 'PH4P048 l '.'..
COMMENTER Chemical Waste Management
RESPONDER PSB , ' :
SUBJECT WOOD4 -,.
SUBJNUM -048 . . :.' '
RESPONSE,. ...._'. '.-.:.. ; . . .-
EPA identified several discrepancies in the list of and the limits of specific-
hazardous constituents proposed for'regulation in several pages of the 60 FR (43680-43682 and,
43694-43697). EPA later issued a Correction Notice to clarify what portions of the preamble
'were incorrect and what portions were correct (see 60 FR 546451, October 25, .1995), Also,
several commenters and two technical journals pointed out"to these discrepancies. EPA is
promulgating pursuant to the Correction Notice unless otherwise noticed in this preamble and in
the Final BOAT Background Document for these Newly Listed Wood Preserving Wastes (F032,
F034, and F035). ".'-. : ' . - x /
Also, it appears that the commentor was concerned that since the BOAT model
supporting numerical limits for D/F constituents was based on six 9's Destruction and Removal.
Efficiency (DRE) 'incinerators, facilities seeking compliance with the numerical, limits in .
,RCRA incinerators, cement kilns, or other industrial furnaces achieving a four 9's DRE were
likely to fail the proposed UTS limits., It also appears that EPA's discussions in the preamble arid.
the BOAT Background Document for F032, F034, and F035 that at least one facility was '
permitted to treat D/F containing wastes as difficult to treat as F032 led the commentor to
believe that EPA was considering to limit the combustion of F032 to a six 9's DRE -RCRA
combustion device. EPA is clarifying, therefore, that in today's rule EPA is not amending
§§264.343 (a) (2) or 266.104 (a) (3). , .
* ' ' . " ' - " -,
It should be noted that although the BOAT combustion technologies supporting .
the development of UTS limits for D/F regulated hi noriwastewater forms of F032 and F024 met
a RCRA incineration performance of six 9's DRE performance, the modeled, compliance
treatment alternative of "CMBST" was based on the performance a four 9's DRE - RCRA 264
Subpart O, rotary kihi incinerator combusting F024. Data from the F024 incineration study
shows mat a well designed and well operated four 9's DRE incinerator can also meet the
proposed limits of 1'ppb for noriwastewater forms of F024. .
1163.
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DCN . PH4P062 . - ' '
COMMENTER RETEC . ;
RESPONDER JL .'
SUBJECT WOOD4
. SUBJNUM 062 '. ' '
COMMENT . . ' '
Treatment Standards for Wood Preserving Wastes ' -
We do not support the proposed regulation of dioxin and furan .
, constituents in F032.Use of other surrogate compounds such as
pentachlorophenol or polycyclic aromatic hydrocarbons (PAM) . .'.
constituents may be appropriate. Specifically, these compounds can
be used as a surrogates for treatment of wastewater by carbon .
absorption. Water at two wood treating sites is treated through
activated carbon and subsequently discharged under an ,
National Pollutant Discharge Elimination System permit. The
facilities conducted effluent monitoring for dioxins and furans
(Table 1). Data from the sampling events show that
effluent concentrations for pentachlorophenol, PAH constituents as
well as dioxins and furans are well below the universal treatment ' ". "
standards (UTS). Hence, PCP or PAH constituents can be used as ,
surrogate compounds to demonstrate dioxin and furan concentrations .
are below UTS levels. We request that EPA consider such an approach
forF032. . , . .
RESPONSE ;
Retec asked EPA to withdraw its proposal for the regulation of D/F constituents
in F032 wastewaters. The commenter believes that the regulation of PCP and Polycyclic
Aromatic Hydrocarbons (PAHs) can ensure the reduction of D/F in F032 wastewaters. The
commenter also submitted data with regard to concentrations of D/F, PCP, and PAHs analytes in
two effluent F032 wastewaters treated by activated carbon adsorption. These data appear to
support the commenter's statement that monitoring of PCP and PAHs may serve as a surrogate
candidates for the reduction of D/F levels in these particular effluent wastewaters. However,
EPA lacks data to determine if the alternative surrogate constituents proposed for regulation can
also serve as surrogates for monitoring the treatment of D/F in wastewater treatment effluents
resulting from other treatment technology trains that may achieve the proposed UTS.
Furthermore, the choice of when to use surrogate pollutants is within EPA's expert discretion,
and here, the Agency believes it best to analyze for CDD/CDF given the toxicity of these
hazardous constituent. (In the case of nonwastewater being combusted, there is the competing
consideration of assuring sufficient treatment capacity and the fact that CMBST is not ordinarily
a matrix-dependent technology, that persuaded EPA to adopt a standard allowing compliance \
without monitoring for CDD's and CDF's.) Although EPA is not adopting this proposed
1164
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alternative treatment standard for D/E regulated in F032 'wastewaters, EPA points out that
treaters of F032 wastewaters can address this kind of alternative compliance monitoring scheme
in their permits' Waste Analysis Plans (WAP). , , '
. EPA is thus promulgating UTS limits for D/F constituents as proposed.
1165
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DCN - PH4P097 ..
COMMENTER' Hazardous Waste Management . "
RESPONDER JL ' ~'. ,
SUBJECT WOOD4 " '
SUBJNUM - 097 ' ' > * .
COMMENT - :'..'
Treatment Standards for Wood Preserving Wastes (60 FR 43680)
EPA proposes to apply Universal .Treatment Standards (UTS) to wood.
preserving wastes F032,-F034, and F035. Currently, there are
differences in the preamble table (60 FR 43682) and the BOAT
standards reflected in proposed §268.40 (60 FR 43696). The
Agency's October 25, 1995 correction to this proposed rule (60 FR
54645) indicates that the table in the preamble contains the
. correct list of proposed regulated constituents, while the §268.40
table is incorrect. Does this mean that F032 is the only waste .
stream to have dioxins arid furans proposed as BDAT, and that F03 5
has no organic constituents proposed as BOAT? The Agency needs to :
ensure that this conclusion is accurately reflected in the final
rule so as to avoid confusion.
RESPONSE ,'.',; ,' , .
'' EPA identified several discrepancies in the list of and the limits of'specific
hazardous constituents proposed for regulation in several pages of the 60 FR (43680-43682 and
43694-43697). EPA later issued a Correction Notice to clarify what portions of the preamble
were incorrect and what portions were correct (see 60 FR (546451), October 25, ,1995). Also,
several commenters and two technical journals pointed out to these discrepancies. EPA is
promulgating pursuant to the Correction Notice unless otherwise noticed in this preamble and in
the Final BOAT Background Document for these Newly Listed Wood Preserving Wastes (F032,
F034, and F035). . ' ,
1166
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DCN" - PH2A003 ''.'.. " H " ' '.'-
COMMENTER The Penta Task Force :
RESPONDER JLABIQSA ' . ' ' .
SUBJECT WOOD4 . . *
SUBJNUM 003 - '' ' - ' . : .
COMMENT II. REVISION JO THE : . ; ;' ,
' ' F024 TREATMENT STANDARD By'proposing to link the treatment
. standards for F032 waste with that for F024 waste, EPA has
, apparently concluded that both wastes should be subject to the:
. same treatment standard, the Penta-Task Force agrees, but . . .
<' believes that:both wastes are appropriately regulated under a
CMBST standard and thus ho revision of the F024 treatment
standard is necessary. Both wastes are classified'as "toxic" .
under RCRA arid neither falls within the acutely hazardous waste
category. Moreover* we doubt that EPA would have proposed .
stringent dioxm/furan limits for F032 waste had the Agency had
' before it the current data on the dipxin/furan levels in
commercial penta formulations and the resultant wood processing
waste. We believe the Agency's prior experience with the stigma
. x " and resultant treatment capacity shortages that occurred in the
case of the F024 rulemaking would have counseled against the
' selection pf dioxin/furan limits iri this rulemaking. As
explained in pur November 20, 1995 comments, the dioxiri/furan
content of F032 waste has declined substantially .over the past
decade. Penta Task Force November 20,1995 Comments, at 21-26.
Not only have the levels of dioxins/furans in commercial grade
. ' pentachlorophenol declined significantly, the levels, in penta
wood preserving.wastes have also fallen. This is reflected in
the data submitted by the Penta Task Force on waste samples
.collected from six (6) wood treating plants. See Chemical ,
Analysis of F032 Wastes for Pplychlorinated Dibenzo-p^dipxins,
. Pplychlorinated Dibenzofurahs, and Pentachlorophenols, (March
28,1996). These data clearly demonstrate that EPA has
' significantly overestimated the levels of dioxins~and furans'in
. F032 waste. Put in context, the data show that F032 and F024 are
- indeed similar because the levels of dioxins or furans in either
'- ' case is not sufficiently high to warrant special treatment
standards. In either case, a CMBST standard is fully protective .
of health arid safety and is a fully appropriate treatment ' " ,
method. . v : '
' RESRONSE ' '-.'' .. '''' , . '. . '.'- . " '
' ' . ' ^ - 1167 --'.'.
-------
. F032 and F024 are toxic wastes listed under the 40 CFR 26 U Part D and the
combustion of these wastes is currently allowed in combustion devices that meet a four 9's
Destruction-Removal Efficiency .performance. . The Penta Task Force has asked EPA to adopt
the same compliance treatment standard,of combustion currently applicable to F024. Adoption
of CMBST would waive the monitoring of D/F constituents in F032 residues resulting from well
designed and well operated combustion devices. EPA codified such treatment compliance
alternative as incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule
(see 55 FR 22580-1, 'June 1, 1990)). EPA later amended the standard to a CMBST standard in
the Phase 3 rulemaking. EPA generally agrees with the comment, but is amending the treatment
standard for F024 (so that it is the same as the comparable F032 wastes). The revised standard
limits the CMBST compliance alternative to those units with Part 264 incineration permits or
Part 266 BIF controls and combustion efficiency.
EPA also believes that facilities operating a Part 265 incinerator that can
demonstrate to EPA that .their combustion device operates in a manner that conforms to the
combustion controls achieved by Part 264 incinerators or Part 265 BIFs may qualify for the
CMBST treatment standard pursuant to a treatability variance under 268.42(b). (See Final
Background Document for Wood Preserving Wastes F032, F034, and F035, April 15,1997, arid
today's preamble discussion.)
1168
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DCN PH4P023 ' , .' ' ' '-','.
COMMENTER Bfeazer East, Inc. ' . ' .
RESPONDER JLABIOSA ' ' ., . ' -,
SUBJECT .WOOD4 " '- . .
, COMMENT II. EPA HAS FAILED TO CONSIDER THE TECHNICAL, ECONOMICAL
AND PRACTICAL IMPACTS .OF THE'PROPOSED LDRs ON REMEDIATION EPA's
Proposed Rule fails to consider, a number of critical issues " : '.
related to the remediation of wood treating sites. These issues
involve LDRs for F032, F034 and F035 as discussed below. A.
; ' The Proposed LDRs for Hazardous Waste No. F032 Will Create
Insurmountable Disposal Problems. 1. Dioxin/Furan should not. ,
be regulated constituents under.theF032.LDR. Regulation of [': '"
dioxin/furah as constituents under the F032 LDR is ' .. '._.'.
scientifically unwarranted. One of the first LDRs for ' ' - . ,-..,
dioxin/furan-containing wastes was established by EPA for F027. ' v< ;
: EPA established the F027 LDR at i ppb (in leachate) and is now ' '
arbitrarily applying the 1 ppb standard to F032. EPA's
characterization of F027,as acutely hazardous was based on trace' .
' . levels of hexachlorodioxins. See Toxicological Profile for,
Pentachlorophenol, May 1994, Agency for Toxic Substances and
' i Disease Registry (ATSDR). EPA considers hexachlorodioxins as .
potent animal carcinogens. Id. This characterization of ' -
.. hexachlorodioxins is hot technically founded arid is even refuted
by the results of a bioassay performed by the National Toxicity . ' -
. Program ("NTP") in 1989, the results, of which .were reported in -
NTP-TR-349 and in NIH Publication 89-2804 (the "NTP cancer.. . '.
bioassay"). As noted hi a November 27,1991 letter from Vulcan
Chemicals to EPA (the "Vulcan Letter") (obtained from the RCRA
docket), the NTP cancer bioassay on perita conclusively
demonstrated that any cancer response observed in exposed
laboratory animals was due to the toxic overexposure of the test , -:
animals to penta and not to the trace amounts of . , .
hexachlorodioxin present. See the Vulcan Letter, p.3. Moreover,
the EPA's Science Advisory Board's ("SAB's") recent evaluation . ;
of EPA's draft dioxui risk reassessment documents has sharply
criticized EPA's reliance on the standard default assumption of
a linear nonTthreshold model for carcinogenic risk and has
called for a substantial rewrite of the assessment The SAB
concluded that one major weakness of the assessment was that the
presentation of scientific findings portrayed in the :draft / ..
conclusions was riot balanced and exhibited a tendency to -
overstate the evidence of danger. AccordinglyrBeaze'r believes '.
that EPA currently is without sufficient scientific bases for .-...'".'-,
1169
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regulating dioxin/furan as a constituent of F032.
RECOMMENDATION: Given that EPA has yet to scientifically
demonstrate and support the risk from low level- exposure to .
dioxih/furan, Beazer recommends that EPA exclude dioxin/furan :
from regulation 'as part of the F032 LDRs until agreement on the "~'
- . scientific underpinnings of this regulatory action is achieved.
RESPONSE . .'.-.'.
'" EPA agrees with the commenter that the proposed treatment standards can have
a chilling effect on ongoing remedial activities under RCRA, offsite remedial activities under
CERGLA, and new or modified onsite Record of Desicions under CERCLA. EPA agrees,
further, that in many intances, the cost to comply with such treatment standards may be
prohibited. EPA emphasizes, however, that HSWA prohibits EPA from taking into account cost
considerations when setting treatment standards that implement RCRA 3004(m) provisions. -
EPA points out, however, that although HWIR media and HWIR regulatory efforts are still on
the horizon and such regulatory frame works are more appropriate, generally, for remedial
activities; EPA cannot adopt the commenter's proposed option that media contaminated with
wood preserving wastes are exempted from the LDRs., EPA's promulgation of such susggested
option will be illegal since F032, F034, and F035 are-newly listed wastes and EPA is mandated
by HSWA to ban all and nelwy listed RCRA hazardous wastes from land disposal practices. As
a result, treatment standards are needed to implement such restrictions. (See HSWA Section
3004(m) and 3004 (g)(4); Chemical Waste Management v. EPA.. 869 F. 2d, D.C. Cir. 1989)..)
The commenter believes that EPA lacks a "scientific base(I)s" for regulating the
proposed list of PCDD and PCDF as regulated UTS constituents iri F032 because of the ongoing
debate on how toxic PCDD and PCDF are. The commenter pointed out to EPA's Science
Advisory Board's (SAB) comments on EPA's draft dioxin risk reassessment documents to
> support their argument. The commenter also believes that PCDD and PCDF are better suited for
risk based approaches and that the proposed (technology based) treatment standard for each
regulated PCDD and PCDF should be adjusted to reflect risks to the human health and the
environment1 The commenter, points out, further, that EPA has already acknowledged that
"dioxin/furan" are immobile and thus, presumably, treatment standards for these constituents
may not be warranted, ,
* \ ' .
The commenter is correct to point out that the Agency is currently re-evaluating
the available "scientific literature" in an effort to address the SAB comments on EPA's draft
dioxin reassessment documents. However, all the concerns expressed by the SAB and others
have been related to the precise degree of toxiciry of dioxins. In fact, concerns have been raised
that the Agency has under estimated the toxicity of dioxin with respect to effects other than
1 See, generally, 50 FR at 47986-7 (September 19, 1994) for EPA responses regarding Risk vsl.Technology
based treatment limits. This issue is not being reopened in today"s rulemaking. . . ,
,.'... 1170 :
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cancer. There has been no serious argument that dipxins are not all toxic and should therefore not
be regulated. Moreover, trie issue of what "scientific bases'-justifies EPA to identify and to treat
PCDD and PCDF in F032 as toxic hazardous constituents of concern in F032 was determined in
the final rule listing F032 as a hazardous waste under Subtitle C of RCRA. (See 55 FR 50465-
. 67, December 6, 1990.) EPA is not reopening this EPA determination for public review under
this rule, [emphasis added] . > .- .
, f % ' ' , ^ - ' _
' In the final rule listing F032 as a hazardous waste, EPA classified all the
congeners of PCDD ahd,PCDF constituents regulated today in F032 as toxic constituents that
warranted the imposition of regulatory controls under Subtitle C of RCRA. PCDD and PCDF
constituents are also listed in Appendix VIII of the 40 CFR Part 261 and in the UTS/BDAT lists '
of hazardous constituents. As a result, EPA believes that the regulation of PCDD and PCDF is
legal. However, the commenter specific Comment, suggesting that EPA rescinds its final
determination that finds ,PCDD and PCDF as hazardous constituents warranting controls under ..
the 40 CFR Part 261-268, can be addressed by the EPA if the commenter submits data to EPA
that may warrant changes .to the 40 CFR 261 through 268, pursuant,to the rulemaking petition
procedures established in the 40 CFR Part 260.20. ' .
The commenter is also correct observing that EPA has stated in the Solvent and
Dioxin rule that PCDD and PCDF are immobile (i.e. generally within the context of being
insoluble in water). (51 FR 1602 (January 14, 1996). The commenter is also correct to'point out
that based on toxicity equivalents (TEQs) --the toxicity of several isomers and congeners of
PCD.D.and PCDF in F032 may be less than the one associated with 2,3,7,8- TCDD. However,
'the commenter cannot have it both ways. First, the commenter expressed strong reservations on
EPA's scientific approaches to dioxin risk assessment and stated that it is questionable whether .
EPA should be regulating or not dioxins and furans as toxic constituents presumably under .
RCRA. Second, the dbmmenter believes that the same scientific rationale to estimate the
potential toxicity potency of different congeners and isomers is also used to adjust upward the
. technology based treatment standards promulgated today for PCDD and PCDF constituents.
Likewise, EPA was not persuaded by the same suggestion of other commenters urging EPA to. ,
set treatment standards for PCDD/PCDF that are adjusted upward with TEQs. [emphasis added].
- ' . - . - v ' -
, - There is still a heated debate on the precise toxicity that may arise from
individual or admixtures of PCDD and PCDF congeners and isomers. 'No one has suggested or
coriviced EPA that the regulated PCDD and PCDF,constituents are not toxic. EPA is also under
a "Congressional mandate to set treatment standards that substantially reduce the short- and long-
term toxicity or mobility of.hazardous constituents prior to disposal. Although EPA believes that
, technology, risk, or health based treatment standards can satisfy, generally, the provisions of
3004 (m), EPA does not routinely adjust treatment standards promulgated under the 40 CFR Part
268 to correct or adjust with health or risk based quantifiers or factors any of the treatment
1171 .
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standards promulgated for each UTS/BDAT constituent regulated by EPA.2 For example, like
PCDD/PCDF, 'PNA's are-other toxic hazardous constituents found in F032 that are also
relatively insoluble in water and thus, presumably less likely to migrate from a Subtitle C
hazardous landfill. And EPA have selected specific constituents within the PNA's for regulation
without relying on toxicity ranking factors for arriving to such list of regulated constituents. (See
Final BOAT Background Document for Wood Preserving Wastes). However, under the Sand
disposal restrictions, treatment levels are based on technologies that substantially reduce the
loadings or concentrations of such constituents prior to disposal. Further, no one is suggesting
that EPA is setting, today, treatment standards that force the treatment of PGDDand PCDF
below levels were the concentrations of these constituents cease to be hazardous. To the
contrary, EPA believes that the treatment standards promulgated today are within a range of
treatment levels that will reduce, generally, short- and long-term threats to the human health and
the environment. EPA is thus promulgating as proposed.
2 Nor is EPA precluded from doing so, if EPA determines that a treatment standard promulgated today is
inappropriate for a contaminated media pursuant to a treatability variance granted under the 40 CFR Part 268.44 (h). .
' ' , 1172 ' ;
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DCN PH2A003
COMMENTER The Penta task Force ' , . s> ' "
RESPONDER JLABIOSAf
SUBJECT WOOD5 ' . . ' '
3UBJNUM 003. '-. - .'. :, , ' . '
COMMENT C. "Option 2 --CMBST With a 0.20 ng/DSCM MACT ,
Limit. The Penta Task Force believes that'Option 2\-- CMBST with
a 0.20 ng/DSCM TEQ MACT limit for dioxin/furan emissions -is
an impracticable treatment option: To the extent-EPA has
proposed Option 2 because of concerns that dioxins/furans can be
reformed in,the post-combustion zone as products of incomplete
combustion ("PIGs"), it is important to recognize that the
problem of PIC formation is not limited to F032 (or even F024
waste) but rather is endemic to the combustion of all
chlorinated organic waste. Combustion of F032 (or even F024)
waste would contribute only marginally to the total volume of
dioxins/furans emitted by all combustion sources. There thus
would be little, if any, environmental benefit achieved by . :
. requiring combustion facilities to meet the proposed
dioxin/furan emission limits as a prerequisite for treating F032 ,
;'? . (or even F024) waste but not other chlorinated waste. The
volumes of F032 (or even F024) waste, although sizeable, -are1'
. .unlikely to provide sufficient market incentives for combustion
facility operators to agree to meet the proposed MACT standard
' .'in advance of their promulgation. Indeed, our discussions with
'various combustion facility operators indicate that they are -
/ unlikely to accept F032 waste under the terms offered by Option
2. The problem is not so much that many combustion units do not
currently meet the limits; EPA's own analysts suggests that 50
percent of facilities for which the Agency has data currently
meet the 20 ng/DSCM TEQ standard. 61 Fed..Reg. 17,358,17,382
(Apr. 19, 1996). Rather the combustion facilities are unlikely
to be willing to perform the analyses, maintain the records, and
satisfy the other administrative requirements that would be
necessary to certify compliance with the proposed MACT standard.
Moreover^ these facilities would hot be expected to be willing
to commit resources now to comply with a proposed standard that
. may change upon final promulgation. And given the cost of
meeting the MACT standard for the remaining 50 percentile of
facilities, which EPA has estimated at $26.2 million (61 Fed.
Reg. 17,382), there is no reasonable likelihood that these
facilities will modify their operations now simply in order to
be able to treat F032 (and perhaps F024) waste. In short, Option
1173. - '
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" 2 does not address the principle problem with the proposed . -
dioxin/ruran treatment standard - the lack ofavailable '
treatment capacity for such waste and the exorbitant cost of - .,
treatment in those limited circumstances where the capacity does .- '
exist. Requiring advance compliance with the proposed MACT . *
standard is unnecessary. For F032 waste, EPA has indicated that
it will-retain Universal Treatment Standard ("UTS") levels for
all of the regulated ndn-dioxin/ruran constituents as part of
the overall treatment standard under either of the three
- options. 61 Fed. Reg. 21,420. These non-dioxin/furan '
concentration limits will provide sufficient assurance that .
combustion devices that treat F032 waste are well-operated and .: .
that the waste is appropriately treated. Moreover, the real
difference between a.CMBST standard, as provided by Option 1,
and a CMBST plus a proposed MACT standard, as provided under
Option 2, is essentially one of timing. The EPA rulemaking on
the MACT standard has already reached the proposal stage and the
public comment period is scheduled to close in August, 1996. See
61 Fed. iReg. 27,038 (May 30, 1996). The additional period of l
time needed to allow the MACT rulemaking to reach the final
promulgation stage will be only a fraction of the six years that
have lapsed since the Agency's listing of F032 waste as . -
. hazardous. There is thus no basis for believing that the public
would be at risk if EPA were to permit F032 waste to be treated
in CMBST units now and allow those units to meet a MACT standard
in the normal course of that standard's promulgation. To the ,
extent, however, that EPA is inclined to select Option 3
CMBST in a RCRA-permitted facility - rather than a CMBST ,
' standard, we urge that EPA provide for treatment in combustion
units that are either RCRA.permitted or meet the MACT limit as .
ultimately promulgated. Once the MACT standard becomes final
there would be no conceivable justification of depriving
non-permitted combustion facilities of the opportunity of
treating F032 waste, and providing that opportunity now as part .
of this rulemaking will obviate the need to modify the F032 ,
standard once the final MACT is promulgated.
s~ » '
RESPONSE . , ' ' . . . .' . ; . '
After reviewing public comments, EPA concurs with the commenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing '
the MACT standards at this time may impose an undue burden on,the industry. EPA intends to
- ' .1174 .
-------
finalize the proposed MACT standards in April 1.998. EPA believes,further that until MACT
standards are promulgated, existing standards will generally assure that the treatment of these
wastes is conducted in well designed and well operated combustion devices.
Ml 75
-------
DCN PH2A009 ^ "'.'--
COMMENTER Dow Chemical '',-' ' '
RESPQNDER JLABIOSA - . , . -
SUBJECT WOODS
'SUBJNUM 009 ' \ "
COMMENT ^ Dow encourages EPA to consider continued improvement and ...
.refinement of the RCRALDR program and also agrees with EPA's ' .
. assessment that combustion technologies generally can treat a'
broad range of wastes and residues. Qow is further supportive ' '-
. of adopting technology standards where this makes sense, thus
avoiding unneeded sampling and analytical work. However; Dow is
extremely concerned with EPA's suggestion of imposing .
restrictions under LDR (Suboptions 2 and 3,61 FR 21421) that .
deal with issues other than land disposal and which are
currently regulated by other provisions of RCRA and/or
equivalent authorized state programs. Dow strongly believes .
. this is unprecedented within the LDR program and beyond its
scope. Imposing air emissions limits or constraints based on ..-".
permit status under LDR would establish tremendous new ' . '
precedence for the remainder of the LDR standards which are
based on some form of combustion. Ultimately by proposing . ?
Suboptions 2 or 3, EPA raises the question regarding the safety
and effectiveness of treatment systems, which are regulated under
EPA's own programs and form the basis for much of its LDR ,
. program. . . . . ,
- * . , , '., \ ', c
RESPONSE ',-'.
\ '
, , The commenter is unclear about EPA's authority for setting additional regulatory
controls that could establish how a treatment method technology standard ought to be
implemented. Also, EPA is unclear on the comments emphasizing that EPA is setting a
precedent with this rulemaking. Th'e commenter is particularly concerned with EPA's proposal^
that the.same regulatory controls proposed for F032 are also promulgated for,F024.
r\ - .
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWAi Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and
the environment Such standards cannot allow cross-media transfer of hazardous constituents in
excessive levels. Chemical Waste Management v. EPA, 976 F. 2d 2,17 (D.C. Or. 1992). EPA
believes that the regulatory standards for combustion units satisfy this test (although the Agency
is in the process of reevaluating those standards and amending them to reflect performance of
MACT).
1176
-------
After reviewing public comments.. EPA concurs with the commenter that
promulgation of regulatory performance requirements'for combustion technologies treating D/F
constituents in F032.and F024 will ultimately be addressed in the MACT riile and that finalizing
. the MACT standards at this time may impose an undue burden on the industry. EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, existing standards will generally assure that the treatment of these
wastes is conducted in well designed and well operated combustion devices. : ' '
i > , . . , . "*'
Other commenters to 'the NOD A presented persuasive comments that the
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under interim standards of 40 CFR 266. EPA is
persuaded that such units often meet more stringent standards than those imposed on 40 CFR 264"
' incinerators. EPA has also determined that ad hoc technological controls can be imposed, if -
needed, to ensure that the combustion of F032 arid F024 in 40 CFR 266 units are conducted in a
well designed and weli operated combustion device. As a result, EPA has revised suboption 3 to
expand the availability of the proposed combustion "CMBST" treatment compliance alternative
. to include those units regulated under, either 40 CFR 266 or 264. ', ,
1177
-------
DCN PH2A009 ,
'COMMENTER DOW Chemical - .
RESPONDER JLABIOSA
SUBJECT WOODS .-
SUBJNUM 009 ' , .
COMMENT EPA does not address the apparent lack of any tetra-PCDF data
related to F03 2. Additionally, the detection level is
unreported for, the F032 penta-PCDD, so the public has no
meaningful information regarding the relative maximum
concentrations of these two classes of compounds. Every class
. of compounds for which meaningful data was provided, shows that
the F032 contains higher concentrations of the compounds of
concern; EPA's presentation of data seems slanted towards the
conclusion to treat these wastes in an identical manner.
However, the listings themselves and the data seem to support
the conclusion that these are two very different waste streams
that should be evaluated on an individual basis. Regardless of ,
what is done with F032's LDR standards, EPA should not revisit
. . its recent promulgation of F024 LDR standards. EPA's proposal to
require combustion units burning certain LDR wastes to also meet
specified stack emissions limits or permit constraints.goes
beyond the scope of LDR and is duplicative to other programs
already well developed in RCRA. Both Suboptions two and three
(61 FR 21421) propose conditions on treating either F032 and/or
F024 that seek to address issues having nothing to do with the
goals of LDR as described in the plain construction of the text
of Section 3004(d),(e),(g) or (k) of RCRA and 40 CFR 268.1. .
Dow is unaware of this approach being used for any other BDAT
determination in the LDR program and should EPA continue to
pursue this approach, it calls into question all of its previous
decision-making under LDR regarding BDAT determinations.
Plainly, the goal of LDR is to address issues having to deal
with the land disposal of RCRA wastes. Neither the ability of a
unit to meet a certain stack emissions limit, nor that unit's
permit status have anything to do with the unit's ability to
meet LDR standards. ANY treatment unit managing RCRA wastes for
. which LDR standards have been issued, must assure that its
residues meet applicable standards! EPA must maintain the focus,
of LDR on land disposal and avoid duplicating requirements under
other provisions of RCRA or equivalent programs in authorized
, states and/or federal and state air programs. The emissions
controls program for the hazardous waste combustion industry is
1178
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. 'a mature program which has been operating in many state's and :
.regions for as many as 15 years. Almost all commercial and . , "
captive operations in the U.S. have either been permitted under , . ' '
. "' . RCRA or ah equivalent state authorized program or are operating
under the self-implementing BIF regulations. These programs . v
require important waste handling provisions, combustion unit ' ,
operations controls and emissions limits. In addition, some _..
' units today already have dioxin emission limits and with the . .
upcoming MACT regulations for all forms of hazardous waste
burning devices, EPA's efforts to further improve the Y' . . .
performance of this industry will be accomplished. Therefore, / .
, EPA does not need to establish a brand new component of the LDR . . ^
program as suggested in Suboptions 2 and 3. . , . ~
RESPONSE '',.".'.. ;. . . ' . .
^ ' '
.. ' ' The commenter expresses concern over EPA's proposal to apply the same . '
' regulatory controls on the combustion "of F032 to F024 wastes. Specifically, the commenter
objects to EPA's proposal that F024 and F032 are subject to the same combustion requirements.
' '' ' - '
The commenter believes that EPA should not reopen the existing CMBST
standard applicable to F024. This is-because the commenter believes that F024 is significantly
different than F032. EPA acknowledges that these wastes differ on the concentration levels of' . "
specific hazardous homologues of D/F constituents an
-------
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term, threats to the human health and
the environment. In today's rule, EPA allows F032 to comply with either a numerical limit or
with the use of a combustion device operated in accordance with Part 264, incinerators, or Part
266, Boilers and Industrial Furnaces (BIFs). EPA believes that by limiting the promulgated
method of treatment,'i.e.,.'availability of the combustion ("CMBST") standard, to a Part 264 .
incinerator of 266 BIF, EPA can ensure that the combustion of D/F in F032 is conducted in a
manner that is protective to the human health and the environment. EPA has promulgated
similar kinds of technology standards for-hazardous wastes regulated under Part 268.43 and
hazardous debris under Part 268.45. These specific treatment standards under Parts" 268.42 and
268.45 prescribe treatment methods and EPA has relied on permit authority, federal/state air '
emission standards, or promulgated operational technology performance requirements to ensure
that the technology treatment methods-are protective to the human health^and the environment,
and in particular do not result in the type of impermissible cross-media transfer of hazardous
constituents referred to by the Chemical Waste Management court.
After reviewing public comments, EPA concurs with the commenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately-be addressed in the MACT rule and that finalizing
. the MACT standards at this time may impose an undue burden on the industry. EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, existing standards will generally assure that the treatment of these
wastes is conducted in well designed and well operated combustion devices.
;
Other cpmmenters to the NOD A presented persuasive comments that the
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under interim standards of 40 CFR 266. EPA is
persuaded that such units often meet more stringent standards than those imposed on 40 CFR
264, incinerators. EPA has also determined that combustion controls can be imposed, if needed,
to ensure that the combustion of F032 and F024 in 40 CFR 266 units are conducted in a well
designed and well operated combustion device. As a result, EPA has revised suboptipn 3 to
expand,the availability of the proposed combustion "CMBST" treatment compliance alternative
to include those units regulated under either 40 CFR 266 or 264.
' 1180
-------
DCN PH2A009 ' ' - " . .'.'''
COMMENTER. DOW-Chemical-'.'- - '
RESPONDER JLABIOSA'
SUBJECT WOODS . ' ' ,
SUBJNUM 009 '. , .''-' ' /'
COMMENT EPA's assumption that dioxin emissions and levels in combustion
. .' wastes will increase unless additional requirements are imposed
.(such as Suboptions 2 and 3) is flawed. EPA is concerned that by
. retaining the CMBST standard for F024 wastes there will be a
sudden increase in D/F emissions and increased concentrations'
' j ' l- -
adsorbed onto.combustion wastes. This assumption is flawed. . '.
F024 wastes have been incinerated in combustion units for many .
. years. F032 rriust also be incinerated since the Penta Task Force
is requesting CMBST as an alternative.treatment method. (If
this is not the case, then EPA should review F03 2 wastes
separately from F024 with respect to Subpption #2.) Dow does not''
. ' agree that a simple CMBST standard could'lead to,increased air
emissions of D/F when these wastes have been incinerated all
along. If a facility decides to increase flow to these units or
. build a new .combustion unit, as always, appropriate permits or
modifications will have to be acquired. Dow is concerned that
" the database used for evaluating compliance with the D/F
emission standard is not representative of all combustion units.
Issue #3 -EPA refers to a number of background documents for '.
the claim that at.least 50% of the facilities tested for the *
'
*_, proposed combustion rule meet .this MACT limit. This statement .
is very questionable considering the database upon which this
assumption is based. This database will be commented on during
the comment period'for the proposed MACT combustion standard.
Dow doubts that there is adequate representation of captive
' incinerators in this database since D/F data is not required to
be generated. It is also very doubtful whether 50% if
' combustion units would meet the D/F limits set by the MACT
standard without first installing control'equipment. EPA must
not revise F024's CMBST alternative standard to limit the . '
combustion of F024 to combustion devices that have been
'permitted. Dow disagrees witti EPA that combustion of FQ24 wastes
should be limited to combustion units that have been issued a .
i
RCRA permit. Many commercial and'non-commercial BIF in Texas and
. Louisiana are currently operating under interim status. The EPA
Region 6 Combustion Strategy states that 55 commercial and
non-commercial BIFs are currently operating under RCRA interim
.status, in fact no BIF unit in Region 6 has.a RCRA permit at - :
,1181
-------
this time. Some of these BIF units may manage F024 waste. If , :
EPA were to require F024 wastes to be burned in permitted units,
facilities may be forced to send this material to a iimited .
. number of permitted commercial incinerators (in some cases ' ''
out-of-state). Incineration at a commercial unit would be very ^. .
costly and wasteful of existing incineration capacity, and it is
doubtful whether there would be enough capacity at the
commercial facilities to handle this additional amount of
material. Although many BIF units operate under interim status,
these units are more stringently regulated than permitted RCRA . .
. incinerators. BIF facilities are required to meet very stringent " , .
emission limits and are required to conduct compliance bums ,
every three years. In addition, monitoring and recordkeeping is , .
, - more extensive than that required for permitted units. In " - ' -
addition to the interim status requirements, BIF units are ,
required to have Glean Air Act permits which must take into
account impacts on the surrounding community. Many hazardous
. waste incinerators have RCRA permits, however, very few have
undergone the omnibus risk review that EPA is using as the
rationale for limiting F024 wastes to permitted units. Given
. this fact, EPA's rationale for requiring F024 wastes to be
incinerated at permitted units'is seriously undermined.
Realistically, permitted units that have not undergone the
omnibus site-specific evaluation or risk assessment are no
different than an interim status unit in evaluating of the
necessity for more stringent permif conditions in order to :
protect human health and the environment. Dow believes that the
current RCRA interim status BIF regulations and emission
requirements are sufficient at this time to eliminate the need ; , , '
to require additional limitations to combustion of F024 wastes.
. In summary, EPA should neither change the F024 standard nor
impose an interim D/F emission standard. .
* \
RESPONSE
EPA agrees with the commenter that all BIFs shouldbe .eligible for the
alternative treatment standard, and further agrees that imposition of proposed MACT
requirements for D/F is premature. However, EPA disagrees that interim status incinerators
should automatically be eligible for the CMBST compliance alternative. These units are hot
subject to standards that assure good combustion efficiency, and it is EPA's view that eligibility
for this alternative should be limited to combustion units at least capable of demonstrating such
efficiency. Thus, the issue is not whether combustion units have gone through a site-specific risk
assessment for D/F, but whether, if combustion facilities are not going to monitor ash to
1182
-------
documentrcompliance, whether they are at least able to demonstrate operation with good .
combustion efficientcy, either through compliance -with regulatory standards like CO/HC. or
through a specific demonstration. . . , .- . ,.
The commenter expresses'concern over:EPA's proposal to apply the same '
regulatory controls on the combustion of F032 to F024 wastes. Specifically, the commenter
objects to E-PA's proposal that F.024 and F032.are subject to the same combustion requirements.
v ' ' , *
' V The commenter believes that EPA should not reopen the existing CMBST
standard applicable to FQ24. This is because the .commenter believes that F024 is significantly
different to F032. EPA acknowledges that these wastes differ on the concentration Levels of
specific hazardous homologues of D/F constituents and the type of D/F precursors' both waste
have% Nevertheless, both wastes are toxic wastes listed under the 40 CFR 261 Part D and the
combustion of these wastes is currently allowed in combustion devices that meet a four 9's'
Destruction Removal Efficiency performance. The Penta Task Force has asked EPA to adopt
the'same compliance treatment standard of combustion currently applicable to F024. Adoption
of the CMBST would waive the monitoring :df D/F constituents in F032 residues resulting from
well designed and well operated combustion devices. EPA codified such treatment compliance .
alternative as incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule
.(see 55 FR 22580-1, June 1,1990)). EPA later amended the standard to a CMBST standard in
the Phase 3 rulemaking. .< ^ '
EPA believes that the suggestion has merit, provided combustion occurs in
devices that can assure destruction of these hazardous constituents. Units subject to standards .
establishing CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in '
the preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators
that have demonstrated good combustion efficiency. [See, also, Final BDAT Background
Document Wood Preserving Wastes for F032, F034, and F035 (April 15,1997).] EPA is adding
this standard in the final rule, and also amending the standard for F024 to conform to a CMBST
standard that requires operation under Part 264 incinerators or Part 266 BIFs.
In today's rule, EPA allows F032 to comply with either a numerical limit or with
the use of a combustion device operated in accordance^vith Part 264, incinerators, or Part 266,
Boilers and Industrial Furnaces (BIFs). EPA believes that by limiting the promulgated method of
treatment, i.e., availability of the combustion ("CMBST') standard, to a Part 264 incinerator or
266 BIF, EPA can ensure that the combustion of D/F in F032 is conducted in a manner that is
protective to the human health and the environment. ' . ' . -
, EPA has promulgated similar kinds of technology standards for hazardous .
wastes regulated under Part 268.43 and hazardous debris under Part 268.45: .These specific : .
treatment standards under Parts 268.42 and 268.45 prescribe treatment methods and EPA has
.relied on permit authority, federal/state air emission standards, or promulgated operational
technology performance requirements to'ensure that the technology treatment methods are
1183
-------
protective to the human health and the environment, and in particular do not result in the type of
impermissible cross-media transfer of hazardous constituents referred to by the Chemical Waste
Management court. ' . '..-'. .
After reviewing public comments, EPA concurs with the commenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
the MACT standards at this time may be premature. EPA intends to finalize the proposed
MACT standards in April 1998. EPA believes further that until MACT standards are
promulgated, the promulgated CMBST treatment standard can assure that the treatment of these
wastes is conducted in well designed and well operated combustion devices. In the interim, EPA
is relying on Omnibus permit writer authorities to address potential concerns with regard to the -
implementation of this promulgated combustion compliance treatment alternative. EPA has
withdrawn, therefore, the proposed suboption 2.
Contrary to the commenter's belief that a simple "CMBST" alternative treatment
standard (i.e. this is adoption, of suboption 1) is protective of the human health and the
environment, EPA believes that some controls shall be imposed on the combustion of F032 and
F024 if the facility wishes to avoid monitoring ash for compliance with D/F treatment standards.
This is because these two waste in addition to containing some levels of D/F constituents in
the untreated wastes, they contain precursors to the formation of D/F constituents (e.g.
chlorinated organics) . D/F can be formed as products of incomplete combustion, in the post-
reaction flame zone of combustion devices, and under some predetermined air pollution control
devices operating conditions (e.g. off gas reaction temperatures ranging from 400° F to 750° F or
when keeping the inlet temperature of gases to fiber filters, electrostatic precipitators, or :
scrubbers below 400° F in order to prevent D/F formation). Unlike the commenter, EPA believes
that these kind of treatment performance uncertainties shall be minimized for combustion
devices seeking compliance with the proposed treatment standard alternative of "CMBST" for
these wastes. (EPA also notes that F024 and now F032 are the only treatment standards where
the Agency is essentially allowing compliance with a numerical standard without a monitoring
requirement, and so does not accept the implication of the comment (possibly unintended) that
limitations on unit eligibility being promulgated in this treatment standard are inconsistent with
other standards adopted by EPA.) EPA believes, further, that such uncertainties can be.
minimized by requiring combustion units seeking compliance with the combustion alternative
to adopt good combustion practices, temperature controls, risk analyses, or other applicable
operating conditions. EPA believes that current RCRA Omnibus permit authorities under the
40 CFR 264 Subpart O and the regulatory standards in 40 CFR 266 can be used to address these
concerns and thus, to minimize such uncertainties. EPA believes, however, that such Omnibus
permit authorities are some how limited to ensure that the combustion ofF032 in combustion
devices operated under the provisions of the 40 CFR 265 are conducted routinely in well
designed and operated treatment units. EPA has withdrawn, therefore, the proposed suboption 1
and abolished the existing "CMBST " for F024.
1184
-------
. " Other commenters to the NO DA presented persuasive comments regarding the
merits for allowing the availability of the F032 and F024 combustion treatment alternative to
those units operating under-40 CFR 266. EPA' is persuaded that such units often meefmore.
stringent standards than those imposed on 40 CFR 264, incinerators. EPA has also determined
that combustion controls can be imposed, if needed, to ensure that the combustion of F032 and
F024 in 40 CFR 266 units are conducted in a well designed and well operated combustion
device. As a result, EPA has revised suboptioh 3 to expand the availability of the proposed
. combustion "CMBST" treatment compliance alternative to include those units regulated under
. either 40 CFR 266 or 264, EPA is thus promulgating this revised suboption 3 - "CMBST"
standard for F024 and F032. . .
1185
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,DCN " PH2A010 ' ..-''.'
COMMENTED EDF . ' . '
RESPONDER JLABIOSA ' . , \ "
SUBJECT WOODS ' '
SUBJNUM. 010 " . ' . ' " .
COMMENT The remaining discussion in this portion of the comments . . -
addresses the alternative three options assuming arguendo the - ,
numeric dioxin limits are not finalized. Under the first option, / '
the F024 "combustion" standard would apply to F032 as well. This' . '
option does not ensure protection of human health and the
environment since EPA's data indicate many combustion devices ^
are not designed and/or operated to minimize dioxin emissions at
the present time; New combustion standards intended to correct
this problem are not scheduled to become effective for four or
five years. Under option 2, EPA would require the combustion
device receiving F03 2 and F024 to meet the recently proposed ,
dioxin emission standards of 0.20 ng/DSCF, and demonstrate
compliance every 1 S.months. Under option 3, the facility must be '
permitted so that EPA could employ the RCRA Section 3005(c)(3)
omnibus authority and consider additional emission limits
necessary to protect human health and the environment. EDF urges ' ,' ' s
the selection of both options 2 and 3. Both options are needed
i. to ensure the dioxin emission limits are met, since compliance
demonstrations during interim status are self-implementing. In " . .
addition, the omnibus authority remains an important vehicle for
controlling PICs at a combustion facility, an essential , .
consideration for chlorinated wastes. Finally, option 3 will
provide an important incentive for combustion devices to obtain . '
RCRA permits. The continued operation of combustion facilities
in interim status is one of the longstanding embarrassments of
the RCRA program.
r ' * - ' " .
RESPONSE .
t - ' . f
EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. In today's rule, EPA allows'F032 to comply with
either a numerical limit or with the use of a combustion device operated in accordance with Part
264, incinerators, or Part 266, Boilers and Industrial Furnaces (BIFs). EPA believes that by .
limiting the promulgated method of treatment, i.e., availability of the combustion ("CMBST")
standard, to a Part 264 incinerator or 266 BIF, EPA can ensure that the combustion of D/F in
F032 is conducted in a manner that is protective to the human health and the environment,
EPA has promulgated similar kinds of technology standards for hazardous
1186
-------
wastes regulated under Part 268.43 and hazardous debris under Part 268.45. These specific
..treatment standards under Farts 268.42 and 268.45 prescribe treatment methods and EPA- has
relied on permit authority^ federal/state air emission standards, or promulgated operational
technology performance requirements to ensure that the technology treatment methods-are
protective to the human health and the environment, and in particular do not result in the type, of
impermissible cross-media transfer of hazardous .constituents referred to by the Chemical Waste
'Management court. , . ' ! '...-..
\ '
N * ' - -.'*'"
EPA believes that the combination of meeting numerical standards for all other constituents plus
controls on good combustion (eittier through Part 264 incinerators or actually in the Part 266 . " '
'standards) are adequate to assure destruction of D/F sufficient to meet the numerical treatment
requirements under 3004(m). These standards are also sufficient to assure that the types of
impermissible cross-media transfers referred to by the Chemical Waste Managgrnenj case (976
F.2d at 17) will not occur. -
1 \ ' ' .'''."' i
After reviewing public comments, EPA was persuaded by an outgrowth of
comments that emphasized that promulgation of MAOT controls on combustion'devices treating
F032 and F024 will be premature and that EPA shall make such determination within the
scheduled final MACT rule for incinerators and BIFs. EPA was persuaded further by comments .
that Part 264 incinerator and Part'266 BIF controls:can assure the destruction of D/F in these
wastes. (See Phase TV's Preamble on Wood Preserving Wastes and the Final BDAT Background
Document for F032, F034, and F035 (April 15, 1997). ..".-' '.'-'.
1187 ;
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DCN' ' PH2A011 . ,
COMMENTER Vinyl Institute" . " ' . .
RESPONDER JLABISOA .
SUBJECT WOOD5 . '
SUBJNUM Oil '-...
COMMENT , The Vinyl Institute does not ;
support subdption 2, as it is unnecessary, duplicative and
inappropriate. In particular, EPA's recently proposed Hazardous
Waste Combustion Maximum Achievable Control Technology (MACT).
standard will effectively address EPA's concerns related to the
reformation of D/F in F024 wastes. Requiring facilities
currently treating F024 wastes to meet D/F emission standards -
would be dupiicative or potentially inconsistent with the MACT .
' ^ standard, potentially requiring facilities to install additional
pollution control equipment or to discontinue incineration of *
F024 wastes, which could result in capacity problems given that -
it is unclear how many units will be able to meet this standard.
Likewise, the Vinyl Institute does not support suboption 3 .
because limiting combustion of F024 and F032 wastes to
RCRA-permitted incineration units could also cause many
manufacturers to be required to cease incinerating F024 wastes
and to ship these wastes off-site, which would also
significantly increase the load to commercial RCRA-permitted '
incineration units, leading to severe capacity problems and
increased risk to human health and the environment due to
' additional handling and transportation requirements. The Vinyl
Institute urges EPA to adopt suboption 1, as it is the only . . '..-,
suboption supported by the record. It also achieves regulatory ,< ,. .
and statutory goals and provides the necessary technological
flexibility. We thank you in advance for your consideration of ,
. these comments. , , , v .
\ .
\
RESPONSE "'...
''-
' After reviewing public comments, EPA concurs with the corhmenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
the MACT standards at this time may impose an undue burden on the industry. -EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, combustion controls under Part 264, incinerators, and Part 266, BFIs,
can be issued to assure that the treatment of these wastes is conducted in well designed and well
operated combustion devices, existing standards will generally assure that the treatment of these
wastes is conducted in well designed and well operated combustion devices.
1188
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Other commenters to the NOD A 'presented persuasive comments ^that the
combustion "CMBST" compliance treatment alternative is also available for F032 and F024
combusted in combustion units operating under interim standards of. 266. EPA is persuaded
that such units often meet more stringent standards than those imposed on 264, incinerators. ' ,;
EPA has also determined that combustion controls can be imposed, if needed, to ensure that the
combustion of F032 and F024 in Part 266, BIFs are' conducted in .a well designed and well
operated combustion device. As a result, EPA has revised suboption 3 to expand the availability
of the proposed combustion "CMBST" treatment compliance alternative to include those units,
regulated under either 266 or 264. EPA believes that since the commenter was advocating for
retaining the option that F024 wastes can be combusted in .266 units, the impact of this .
'promulgated alternative may be minimum.on the current management of.F024. .
1189-
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DCN ; PH2A015 . - ' >
COMMENTER CKRC . .
RESPONDER JLABIOSA ' '
SUBJECT WOODS , ' '
SUBJNUM 015 . . " - . ,
COMMENT The Cement Kiln Recycling Coalition (CKRC) is a national trade
.' . .association representing virtually all those cement companies ...
involved in the use of waste-derived fuel in the cement.
' manufacturing process as well as those companies involved in the
collection, processing, managing, and marketing of such fuel. . . .
CKRC has twenty member companies representing over 100
facilities throughout the U.S. CKRC's members are regulated by ,
the Resource Conservation and Recovery Act (RCRA) for burning.
such fuels in boilers and industrial furnaces (BIF rules),
codified at 40 CFR part 266, Subpart H. While CKRC has several
'concerns regarding issues raised in the "Land Disposal ' .
Restrictions Phase IV Rule Notice, of. Data Availability (Issues -
Associated with Clean Water Act Treatment Equivalency, and
Treatment Standards for Wood Preserving Wastes and Toxicity
Characteristic metal Wastes)" t(NDA), CKRC is most concerned with
the Agency's overall effort to attach global combustion issues ,' . :
(currently hi the proposal stage of another rulemaking process)
which have broad policy implications to a notice of data
availability specific to wood preserving wastes. CKRC is
strongly opposed to this approach as it effectively circumvents
the rulemaking process which enables affected parties to be ,
informed clearly about the Agency's regulatory intentions, to
adequately consider their impacts, and provide appropriate .
comment. Thus, CKRG urges the Agency to delete the broad policy
issues from this very specific notice of data availability.
RESPONSE . ",..';/ ;
EPA agrees, with the commenter that the proposal to impose MACT standards on
combustion devices treating F032 and F024 was premature and EPA has thus withdrawn such
regulatory pptions in today's rulemaking. See preamble. , .
.1190
-------
DCN' .PH2A015 - - : " ..
COMMENTER CKRC ' . ' .. . , ' .
RESPONDER JLABIOSA
SUBJECT WOODS . ' * ' , ' ',
SUBJNUM, 015 .
COMMENT . Closing CKRC is strongly-opposed to the Agency's effort to
attach broad-reaching, global combustion issues to a notice of
data availability specific to treatment of wood preserving ,
wastes. Based on the inappropriate policy-development precedent ;'
such activity could set, and in the face of data to the .
contrary, CKRC .urges the Agency to strike these global issues
- from the NDA.' . . ' - -
RESPONSE
/" ' .-*'' 1
. ' . ' EPA agrees with much of the comment. It would be premature to base a
regulatory standard in this rule on the proposed MACT standards. However, EPA does ;not view
the narrow issue of whether a combustion device should be able to waive monitoring of .. . .
combustion ash as 'global'. Rather, it is a narrow issue related to LDR compliance. The
Agency's view is that eligibility should hinge on demonstrated ability to combust efficientlya
reasonable, and limited approach. Such demonstration can come from having received a permit,
rbeing subject to the BIF standards, or made a specific demonstration of such ability: See
preamble. .' ' , ' - . .
1191
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DCN PH2A016 ,- .
COMMENT-ER- Dupont - , " , i " . .'
, RESPONDER -JLABIOSA .. . ' -
' SUBJECT' WOODS . . .
SUBJNUM 016 , , .
COMMENT, DuPont supports limiting the scope of the proposed treatment
standard for F032 Wood Preserving Waste to treatment standards
for F032 Wood Preserving Waste. EPA's proposed suboptions 2 and
3 for establishing F032 treatment standards would also revise
F024's CMBST alternative standard and would effectively redefine
.the CMBST standard. Specifically, proposed suboptions 2 and 3 ,
would impose dioxin stack controls and permitted status to
limit which hazardous waste treatment units could combust F032 arid
. F024 wastes, apparently due to concerns about emissions of '
chlorinated dioxins and furans. EPA's proposed Revised .
" Standards for Hazardous Waste Combustors (61 FR 17358, April 19, ;
1996) address controls on dioxin and furan emissions from
hazardous waste incinerators, cement kilns,-and light-weight .
aggregate kilns. Regions and States are proceeding with ' .
. permitting for interim status incinerators, boilers, and
furnaces. Consideration of the appropriate stack controls on
dioxins and furans is best left to the Agency and commenters in
the context of the Revised Standards for Hazardous Waste
' *
Combustors rather than in a rule to set LDR treatment standards . , .
for wood preserving wastes. Imposition .of stack controls or . ,
permitted status as a possible part of the CMBST treatment
standard would be premature and could interfere with ongoing
rulemaking and permitting efforts. Instead, the Agency should
limit the scope of development of a treatment standard for F032
waste to only F032 wastes and should not revise the CMBST
standard for other wastes. ' ' -
. ' ". " ;
RESPONSE .
The commenter expresses concern over EPA's proposal to apply the same
regulatory controls on the combustion of F032 to F024 wastes. Specifically, the commenter
objects to EPA's proposal that F024 and F032 are subject to the same combustion requirements.
The commenter believes that EPA should not reopen the existing CMBST
standard applicable to F024, This is because the commenter believes that F024 is significantly
different to F032. EPA acknowledges that these wastes differ on the concentration levels of
.specific hazardous hofnologues of D/F constituents and the type of D/F precursors both waste
have. Nevertheless, both wastes are toxic wastes listed under the 40 CFR 261 and the
1192
-------
combustion of these wastes is currently allowed in combustion devices that meet a four 9's
Destruction Removal Efficiency performance, the Penta Task Force has asked EPA to adopt^
the same compliance treatment standard of combustion currently applicable to F024. Adoption
. of the CMBST would waive the monitoring of D/F constituents in F032 residues resulting from
well designed and well operated combustion devices.. EPA. codified such treatment compliance
, alternative as incineration br""INCIN" in the 40 CFR. 264 Subpart 0 unit (see Third Third rule
(see 55 FR 22580-1, June 1, 1990J). EPA later amended the standard to a CMBST standard in.
the Phase 3 rulemaking. . ' - . ,.''.- . ' '
EPA believes that the suggestion has merit, provided combustion occurs in.
devices that can assure destruction of these hazardous constituents. .Units subject to standards
establishing CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in
the preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators
that have demonstrated good combustion efficiency. [See, also, Final BOAT Background
Document Wood Preserving Wastes for F032,' F034, and F035 (April 15, 1997),] EPA is adding
this standard(in the final rule, and also amending the.standard for F024 to conform to a CMBST
standard that requires operation under Part 264 incinerators or Part 266 BIFs. ' .
... 'EPA's authority to prescribe treatment limits or methods of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is directed
to set treatment standards that would reduce short- and long-term threats to the human health and"
the environment. In today's rule, EPA allows F032 to comply with either a numerical limit or
with the use of a combustion device operated in accordance with Part 264, incinerators, or'Part
.266, Boilers and Industrial Furnaces (BIFs). EPA believes that by limiting the .promulgated
, method of treatment, i.e., availability of the'combustion ("CMBST") standard, tt\a Part 264
incinerator or 266 BIF, EPA can ensure that the combustion of D/F in F032 is conducted in a
manner that is protective to the human health and the environment. , '
EPA has promulgated similar kinds of technology standards for hazardous
wastes regulated under Part 268.43 and hazardous debris under Part 268.45. These specific
treatment standards under Parts 268.42 and 268.45 prescribe treatment methods and EPA has'
relied on permit authority, federal/state air emission standards, of promulgated operational"
technology performance requirements to ensure that the technology treatment methods are
protective to the human health and the environment, and in particular do hot result in the type of
impermissible cross-media transfer of hazardous constituents referred to by .the Chemical Waste
Management court. . /,','",.
* ,' . " '* -*''.'
After reviewing public comments, EPA concurs with the commenter that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents'in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
., the MACT standards at this time may be premature. . EPA intends to finalize the proposed
MACT standards in April 1998. EPAbelieves further that until MACT standards are' . \
promulgated, Part 264 incinerators and Part 266 BIF can assure that the/treatment of these wastes
1193
-------
is conducted in well designed and well operated combustion devices. EPA has withdrawn,-
therefore, the proposed subbption 2. ' - S '
^ Contrary to. the commenter's belief that a simple "CMBST" alternative-treatment
standard-(i.e. this is adoption of suboption 1 j is protective of the human health and the
environment, EPA believes that some controls shall be imposed on the-combustion of F032 and
F024 if the facility wishes to'avoid monitoring ash for compliance with D/F treatment standards.
This is because these two waste in addition to containing some levels of D/F constituents in
the untreated wastes, they contain precursors to the formation of D/F constituents (e.g.
. chlorinated organics). D/F, can be formed-as products of incomplete combustion, in the post-
reaction flame zone of combustion devices, and under some predetermined air pollution control
devices operating .conditions (e.g. off gas reaction temperatures ranging from 400° F to 750° F or
when keeping the inlet temperature of gases to fiber filters, electrostatic precipitators, or
scrubbers below 400° F in order to prevent D/F formation). Unlike the commenter, EPA believes
that these kind of treatment performance uncertainties shall be minimized for combustion
devices seeking compliance with the proposed treatment standard alternative of "CMBST" for
these wastes. (EPA also notes that F024 andnow F032 are the only treatment standards where
the Agency is essentially allowing compliance with a numerical standard without a monitoring
requirement, and so does not accept the implication of the comment (possibly unintended) that .
limitations on unit, eligibility being promulgated in this treatment standard are inconsistent with
other standards adopted by EPA,) EPA believes, further, that such uncertainties can be .
minimized by requiring combustion units seeking compliance with the combustion alternative
to adopt good combustion practices, temperature controls, risk analyses, or other applicable
operating conditions. EPA believes that current RCRA Omnibus permit authorities under the
40 CFR 264 Subpart O and the regulatory standards in 40 CFR 266 can be used to address these,
concerns and thus, to minimize such uncertainties. EPA believes, however, that such Omnibus
. permit authorities are some how limited to ensure that the combustion of F032 in combustion
devices operated under the provisions of the 40 CFR 265 are conducted routinely in well
designed and operated treatment units. EPA has withdrawn, therefore,, the proposed suboption 1
and abolished the existing "CMBST " for F024. ' » -. .
Other commenters to the NOD A presented persuasive comments regarding the
merits for allowing the availability of the F032 and F024 combustion treatment alternative to
those units operating under 40 CFR 266. EPA is persuaded that such units often meet more
stringent standards than those imposed on 40 CFR 264, incinerators. EPA has also determined
that combustion controls can be imposed, if needed, to ensure that the combustion of F032 and
F024 in 40 CFR 266 units are conducted in a well designed and well operated combustion
device. As a result, EPA has revised suboption 3 to expand the availability of the proposed
combustion "CMBST" treatment compliance alternative to include those units regulated under
either 40 CFR 266 or 264. EPA believes that since the commenter was advocating for retaining
the option that F024 wastes can be combusted in 266 units, the impact'of this promulgated
alternative may be minimum on the management of F024. -
1194
-------
DCN PH2A018 ' .''...
COMMENTER Chemical Waste Management
RESPONDER JLABIQSA ... ' .
SUBJECT WOODS . ' . ' , - ~ . , :
SUBJNUM 018 -.. .'.,''" '
COMMENT III. TREATMENT STANDARDS FOR F032 WOOD PRESERVING WASTES
The Agency, requests comment on the establishment of treatment
standards Tor F032. Specifically the Agency proposes an "..-' "
alternative treatment standard with three suboptions. The
alternative treatment standard option would be based onTNCIN as .
a specified technology. The suboptions'would 1) allow.CMBST as
well as INCIN; 2) establish CMBST as a specified technology and .
require dioxin/furan (D/F) air emission limits as proposed by
the incineration MACT; 3) allow F024 and F032 treatment in only
* permitted combustion units. CWM believes that the easiest
. approach'to implement would be to establish INCIN or CMBST as . '
the treatment standard for the D/F constituents in the F032
wastes. If F032 dioxins and rurans are regulated in this manner . , >'
'then CWM incineration facilities will be much more likely to
accept F032 waste streams than if specific D/F constituents are
regulated individually. CWM does not believe that Suboption 2
should be adopted at this time. The Agency.should address D/F
air emissions .under the proposed MACT rule.for hazardous waste
combustion devices. See 61 Fed. Reg. at 17,358 (April 19,1 -
996). ' . ' " . '. '
RESPONSE. v ''-,
. EPA essentially agrees with the commenter, except that interim status \
incinerators should not be automatically eligible for this alternative unless they can demonstrate
good combustion efficiency equivalent to what a permitted incinerator or a regulated BIF must
achieve. See Phase IV s preamble or Wood Preserving Waste and Final BDAT Background
Document for Wood Preserving Wastes F032, F034, and F035 (April 18,1997).
1195
-------
DCN - PH2A020 % -.'".'
COMMENTER-CONDEA . ,
'RESPONDER JLABIOSA
SUBJECT WOODS , .
SUBJNUM 020
COMMENT CONDEA Vista Company urges EPA to adopt'sub-option.l for F032
wastes. This option maintains the current treatment standard of ' -
combustion (CMBST) for F024 waste. We are concerned that
imposing a dioxin/furan emission standard on facilities
otherwise capable of F024 waste destruction could limit or
eliminate the disposal options in the immediate future. Long
term, EPA has proposed a MACT standard for incinerators^ boiiers
. and industrial furnaces that will limit dioxins and furans. The
implementation of that MAGT standard should be sufficient to
assure minimal dioxin and furan emissions from facilities '
treating F024 waste.
RESPONSE . ,- ' .. ' '
The commenter expresses concern over EPA's proposal to apply the same
regulatory controls-on the combustion of F032 to F024 wastes. Specifically, the commenter
objects to EPA's proposal that F024 and F032 are subject to the same combustion requirements.
- ' ' T
The commenter believes that EPA should not reopen the existing CMBST
standard applicable to F024: This is because the commenter believes that F024 is significantly
different to F032. EPA acknowledges that these wastes differ on the concentration levels of
specific hazardous homologues of D/F constituents and the type of D/F precursors both waste
have. Nevertheless, both wastes are toxic wastes listed under the 40 CFR 261 Part D and the
combustion of these wastes is currently allowed in combustion devices that meet a four 9's
Destruction Removal Efficiency performance. The Penta Task Force has asked EPA to adopt
the same compliance treatment standard of combustion currently applicable to F024. Adoption
of the CMBST would waive the monitoring of D/F constituents in F032 residues resulting from
well designed and well operated combustion devices. EPA codified such treatment compliance
alternative as incineration or "INCIN" in the 40 CFR 264 Subpart O unit (see Third Third rule
(see 55 FR 22580-1, June 1,1990)). EPA later amended the standard to a CMBST standard in
the Phase 3 rulemaking. .
EPA believes that the suggestion has merit, provided combustion occurs in
devices that can assure destruction of these hazardous constituents. Units subject to standards
establishing CO/HC standards, or specific controls for D/F, satisfy these criteria. As explained in
the preamble, these are Part 264 incinerators and Part 266 BIFs, plus interim status incinerators.
that have demonstrated good combustion efficiency. [See, also, Final BOAT Background
Document Wood Preserving Wastes for F032, F034, and F035 (April 15,1997).] EPA is adding
this standard in the final rule, and also amending the standard for F024 to conform to a CMBST
1196
-------
standard that requires operation under Part 2.64 incinerators of Part 266 BIFs. ,' /
. ' EPA's. authority to prescribe treatment limits or methods'of treatment under the
LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, ,EPA is directed
to se.t treatment standards that would reduce short- and long-term threats to'the human health and
_theenvironment. - - -." ; ,
. In today's rule, EPA allows F032 to comply, with either a numerical limit or with
the use of a combustion device operated in accordance with Part 264, incinerators, or Part 266,
Boilers and Industrial Furnaces (BIFs). EPA believes that by limiting the promulgated method of
treatment, i.e. availability of the combustion ("CMBST") standard, to a Part 264 incinerator or
266 BIF, EPA can ensure that the combustion of D/F in F032 is conducted in a manner that is
protective to the human health and the, environment. ',''."
" i1
-* ' > '
EPA has promulgated similar kinds of technology standards for hazardous
wastes regulated under Part 268:43 and hazardous debris under Part 268.45. These specific
"treatment standards under Parts 268.42 and 268.45 prescribe treatment methods and EPA has " .
relied on permit.authority, federal/state air emission standards, or promulgated operational
technology.performance requirements to ensure that the technology treatment methods are
protective to the human health and the environment, and in particular do not result in the type of
impermissible cross-media transfer of hazardous constituents referred to by the Chemical Waste
Management court. ',.-.' , .
EPA recognizes that some facilities that 6perate;Part 265 incinerators may attain
.equivalent combustion controls-to those achieved by Part 264 incinerators or Part 266 BIFs and
.' thus, should be allowed to.comply with the CMBST treatment standard promulgated for F032.,
But EPA believes such determination should be made on site-specific cases pursuant to EPA's.
authorities under the 40 CFR Part 268.42 (b). EPA has provided guidance in today's rule
preamble discussion for wood preserving wastes and the Final BDAT Background Document for
Wood Preserving Wastes on how determinations for equivalent treatment under 268.42 (b) will
'be administered for facilities who believe their Part 265 incinerators meet the combustion
performance and controls attained by Part 264 incinerator or a Part 266 BIFs devices.
After reviewing public comments, EPA concurs with the commerite'r that
promulgation of regulatory performance requirements for combustion technologies treating D/F
constituents in F032 and F024 will ultimately be addressed in the MACT rule and that finalizing
-the MACT standards at this time may impose an undue burden, on the industry. EPA intends to
finalize the proposed MACT standards'in April 1998. EPA believes further that until MACT
standards are promulgated, combustion controls can be imposed, if needed^ to ensure that the
treatment ofthese wastes is conducted in well designed and weH'operated combustion devices.
'*'.. . ' ' ^ ' ' '
s Contrary to the commeriter's belief that a simple "CMBST" alternative treatment "
" ' .' . ' . ' 119?: ' ' -:
-------
standard (i.e. this is adoption of suboption 1) is protective of the human health' and the
environment, EPA believes that some controls shall be imposed on the combustion of F032 and
F024 if the facility wishes to avoid monitoring ash for compliance with D/F treatment standards.
This is because these two waste in addition to containing some levels of D/F constituents in
the untreated wastes, they contain precursors to. the formation of D/F constituents (e.g.
chlorinated organics). D/F can be formed as products of incomplete combustion, in the post-
reaction flame zone "of combustion devices,' and under some predetermined air pollution control
devices operating conditions (e.g.'off gas reaction temperatures ranging from 400° F to 750° F or
.when keeping the inlet temperature of gases to fiber filters, electrostatic precipitators, or
scrubbers below 400° F in order to prevent D/F formation). Unlike the commenter, EPA believes
that these,kind of treatment performance uncertainties shall be minimized for combustion
devices seeking compliance with the proposed treatment standard alternative of "CMBST" for
these wastes. (EPA also notes that F024 and now F032 are the only treatment standards where
the Agency is essentially allowing compliance with a numerical standard without a monitoring
requirement, and so does not accept the implication of the comment (possibly unintended) that-
limitations on unit eligibility being promulgated in this treatment standard are inconsistent with
other standards adopted by EPA.) EPA believes, further, that such uncertainties can be:
minimized by requiring combustion units seeking compliance with the combustion alternative
to adopt good combustion practices, temperature controls, risk analyses, or other applicable
operating conditions. EPA believes that current RCRA Omnibus permit authorities under the
40 CFR 264 Subpart O and the regulatory standards in 40 CFR 266 can be used to address these
concerns and thus, to_minimize such uncertainties. EPA believes, however, that such Omnibus
permit authorities are some how limited to ensure that the combustion of F032 in combustion
devices operated under,the provisions of the 40 CFR 265 are conducted routinely in well
designed and operated treatment units. EPA has withdrawn, therefore, the proposed suboption 1
and abolished the existing "CMBST " for F024.
. * ' . *.
Other commenters to the NODA presented persuasive comments regarding the.
merits for allowing the availability of the F032 and F024 combustion' treatment alternative to
those units operating under 266. EPA is persuaded that such units often meet more stringent
standards than those imposed on 264, incinerators. EPA has also determined that combustion
controls can be imposed, if needed, to ensure that the combustion of F032 and F024 in 40 CFR,
266 units are conducted in a well designed and well operated combustion device. As a result,
EPA has revised suboption 3 to expand the availability of the proposed combustion "CMBST"
treatment compliance alternative to include those units regulated under either 40 CFR 266 or .
264. EPA believes that since the commenter was advocating for retaining the option that F024
wastes can be combusted in 266 units, the impact of this promulgated alternative may be
minimum on the management of F024. -
1198
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DCN - PH4P023 ' '' . . '..'."'
COMMENTER Beazer East, Inc. :,'
RESPONDER JL . - ,
SUBJECT WOOD6 -.'.." -.
COMMENT 2. The analytical method for detecting dioxin/furan is
problematic.-Since the-inception of EPA1 s efforts to regulate
dioxin,, serious questions have been raised by the regulated . . ', , ,.
'community regarding its detection and analysis. Beazer believes
the inclusion of dioxin/furan as a parameter for the F032 LDR, ; , \
particularly at the low levels specified in .the Proposed Rule,
is problematic due to analytical interferences and elevated ..
; . detection Jimits clouding performance verification. Beazer is .
. especially concerned about the potential for false positives. , <
EPA's BOAT Background Document for Wood Preserving Wastes (July,
v 1995) supports this concern. The document explains: [a] number . -t '
of analytical chemistry difficulties are associated with the - .
analysis of F032 Wood Preserving Waste samples for PCDDs and .-
PCDFs. The most significant problems are due to interferences
^resulting from the high concentrations of pentachlorophenol,
'. chlorophenols, creosote, and inorganics. The effects of these
interferences may result in elevated detection limits, ''.
. insufficient method sensitivity, and biased false positive - . ,
results. Moreover, the analytical problems associated with ' , ; ' .
. measurement of very low levels of the dioxins/furans described '
above are exacerbated by the substantial complexities of a
non-homogeneous sample matrix, such as soil, sediment arid ./ .
sludge. ' , . ' - -','
RESPONSE. "
Several comments emphasized that there are "analytical difficulties associated
with the characterization of Dioxin and Furan constituents iii F032". These commentors have ,
urged EPA to withdraw the proposed limits for D/F in F032 in light of such "analytical
difficulties". This.commentor lacks detailed information that may enable EPA to further
evaluate the alledged "analytical difficulties" encountered for the routine characterization of
D/FinF032. . . . ' ' . , ,. ..
Based on other.comments that provided, information on the kind of "analytical
difficulties" pressumably encountered during the analyses,of F032, EPA has concluded that the
alledged "analytical difficulties'* may be a direct result of inappropriate analytical test method
procedures and perhaps, limited experience'of the laboratory chemists rather than the potential
short-comings with the recommended EPA's SW 846 Test Methods. Based on these findings,
EPA believes that it is technically feasible to promulgate the proposed numerical limits..
' . , ' . '. ' * . '
! Also, EPA has revised the Final BOAT Background Document for Wood
/-'..-. < . <
' ' " 1199 ; '
-------
Preserving Wastes to recommend the use of SW 846 - Test. Methods 8280 A or 8290. as the
methods, of compliance for the characterization D/F analytes in F032. EPA also points out that
there are laboratories in the country that routinely untilize Methods 8280 A and 8290 to
analyse D/F in complex waste streams, soils, sediments, and debris. The BOAT Background
Document for Wood Preserving Wastes F032, F034, and F035, provides a discussion of the
recommended tetst methods and guidance on protocols and laboratory techniques that can
minimize "potential analytical difficulties" inherent to the analysis of D/F analytes in F032
waste streams. EPA is thus promulgating numerical limits for D/F constitunets in F032, as
proposed.( . ~ ' ; , :
:1200
-------
DCN' . PH4P023- - ' '.-,.-' . '. ' \
COMMENTER Beazer East '" , . .
RESPONDER SB
SUBJECT , WOOD6 ''.'".'' . . ' "
SUBJNUM i 023 ' '..-''. ' ' - ' .
COMMENT ' / . -...." ''.''.'
' EPA should delete dioxin/furan. from the F032 LDR because ^f the , :".
difficulties in verifying the concentrations of the materials in ' ~ . '
media. , . , , ,
'RESPONSE ' ' . ' ; *.'"'' ! ' ' ' :
' . ' , Several comments emphasized that there are "analytical difficulties associated
- with the characterization of Dioxin and Furan constituents in F032". These commentors have"
urged EPA to withdraw the proposed.limits for D/F in F032 in light of such "analytical
difficulties". This commentor lacks detailed information that may enable EPA to further
evaluate the alledged "analytical difficulties" .encountered for the routine characterization of
D/FinF032. . ' :: . ^ .
., . Based on other comments that^provided information on the kind of "analytical
difficulties" pressumably encountered during the analyses of F032, EPA has concluded that the
alledged "analytical difficulties" may be a direct result of inappropriate analytical test method,
procedures and perhaps, limited experience of. the.laboratory chemists rather than the potential
short-comings with the recommended EPA's SW 846 Test Methods. Based on these findings*
EPA believes that it is technically feasible to promulgate the proposed numerical limits.
' . ' Also, EPA has revised the Final BDAT Background Document for Wood
Preserving Wastes to recommend the use of SW 846 - Test Methods 8280 A or 8290, as the
methods of compliance for the characterization D/F analytes in F032. EPA also points but that
there are laboratories in the country that routinely untilize Methods 8280 A and 8290 to
analyse D/F in complex waste streams, soils, sediments, and debris. The BOAT Background
Document for Wood Preserving Wastes'F032, F034, and F035, provides a discussion of the
recommended tetst methods and guidance on protocols and laboratory techniques,that can
minimize "potential analytical difficulties" inherent to the analysis of D/F analytes in F032
waste streams. EPA is thus promulgating numerical limits for D/F constitunets in F032, as
proposed. -''... '
1201
-------
DCN PH4P032 ' . ' ' ' "
COMMENTER THE PENTA TASK FORCE v - ' .- .
RESPONDERJL , ,
. SUBJECT WOOD6 " ' ^ .
SUBJNUM 032 . " ^' .
COMMENT .
* . -
B. The BDAT Standard Must Be Adjusted To Reflect Accuracy Correction and
Variability Factors. ' ! .
If EPA now questions the ability of incineration to completely destroy dioxins and furans in
F032 wastes and therefore is inclined not to establish an alternate incineration'standard, we
urge EPA to review the data and set dioxin/furan limits which fully account for analytical and
treatment variability. EPA normal procedure in setting treatment standards for a waste
constituent is to apply both an "accuracy correction factor" and a "variability factor" to the
concentration of the constituent observed in the treatment data that support the standard. See,
Final Best Demonstrated Available Technology (BDAT) Background Document for Universal
Standards - Volume A: Universal Standards for Wastewater Forms-of Wastes, 5-2 (July
1994) (hereinafter "UTS BDAT Background Document"). The accuracy correction factor is
used to account for analytical limitations in the available treatment performance data and the /
variability factor is used to correct for variations in waste treatment, sampling, analytical
techniques and.procedures, and other factors that affect treatment performance. Id. Where, as
here, the incineration performance data show that the concentration of the constituent in the ash
is below the detection limit, EPA normally applies a default variability factor of 2.8, and a
default accuracy correction factor of 5.0. Id., Vol. B, at 5-5, 6-4. ,
But in establishing the universal treatment standards for nonwastewater forms of organic
waste, EPA departed from its normal practice and set the UTS at the 1 ppb detection limit
without accounting for variability. If EPA were to apply the normal variability and accuracy
correction factors to the 1 ppb detection limit for dioxins/furans in F032 nonwastewaters, the
adjusted treatment standard would be 1 ppb x 2.8 x 5.0, or 14 ppb.9 . ,
RESPONSE ,
- - . - i
Several comments emphasized that there are "analytical difficulties associated
with the characterization of Dioxin and Furan constituents in F032". These cpmmentors have
urged EPA to withdraw the proposed limits for D/F in F032 in light of such "analytical
difficulties". This commentor lacks detailed information that may enable EPA to further
evaluate the alledged "analytical difficulties" encountered for the. routine characterization of
D/FinF032. . ' '
. ' '-' ' .
Based on other comments that provided information on the kind of "analytical
'.'' '.'' " '.'-1202
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difficulties" pressumably encountered during the analyses of F032, EPA has'concluded that the /
alledged "analytical difficulties" may be a direct result of inappropriate analytical test method
procedures and perhaps, limited experience of the laboratory chemists rather than the potential
short-comings with the recommended EPA's SW 846 Test Methods. Based on these findings,
EPA believes that it is technically feasible to promulgate the proposed numerical limits:
' . Also, EPA has revised the Final BE)AT Background Document for Wood . -
Preserving Wastes .to.recommend the use of SW 846 - Test Methods 8280 A or 8290, as the
methods of compliance for the characterization D/F analytes in F032: EPA also points out that
there are laboratories in the country that routinely untilize Methods 8280 A and 8290 to
analyse D/F in complex waste streams; soils,'sediments,- and debris. The BOAT Background
Document for Wood Preserving Wastes F032, F034, and FQ35, provides a discussion of the
recommended tetst methods and guidance on protocols and laboratory techniques that can
minimize "potential analytical difficulties" inherent to the analysis of D/F analytes in F032
waste streams. EPA is thus promulgating numerical limits for D/F constitunets in.F032, as
proposed., . . , , ' . , ' ' .
1203
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DCN PH4P039 : , - '
COMMENTER AWPI '
RESPONDER JL . . .
SUBJECT WOOD6 -
SUBJNUM 039 >
COMMENT ANALYTICAL PROBLEMS ASSOCIATED WITH DIOXIN AND
FURAN WASTES EPA acknowledges the existence of several
analytical problems associated with dioxin wastes. EPA notes:
[a]; number of analytical chemistry difficulties are associated
with the analysis of F032 Wood Preserving Waste samples for
[polychlorinated-dibenzo-dioxins] PCDDs and
[polychlorinated-diberizo-furans] PCDFs. The most significant.
problems are due to interference's resulting from the high .
concentrations of pentachlorophenol, chlorophenols, creosote, .
and inorganics. The effects of these interference's may result .
in elevated detection limits, insufficient method sensitivity, .
and biased false positive results. Non-homogenous sample
matrices (e.g., soils, sludges, sediments) intensify the
analytical problems cited above. COMMENT: AWPI believes EPA's
treatment level of 1 ppb for dioxin and furan in F032 wastes is
unreasonable and places the generator in an impossible situation : .
when attempting to verify performance. EPA should delete the
dioxin and furan limits for F032 or accept incineration in a i
four-9s incinerator as an alternative treatment technology.
RESPONSE -."-.''!;
- After reviewing the characterization data of the commenter and the reported
analytical difficulties, EPA has concluded that the reported "difficulties" appear to represent
more the unfamiliarity of chemists performing the chemical analyses with D/F recommended
test methods rather than real flaws in the test, method. EPA believes further that the alleged
"difficulties" can easily be overcome by routine laboratory clean-up procedures and the use of
appropriate solvents and other laboratory calibration techniques. EPA has enhanced,
therefore, the discussion of these recommended procedures and calibration techniques in the
BOAT Background Document. Also, see the document titled: Background Paper Addressing ,
Technical Issues .Related to Analysis of F032 Wood Preserving Wastes for Dioxins and
Furans, dated June 19, 1996, in the Administrative Record for today's rulemaking.
In addition, the commenter felt that the high concentrations of PCP will .
interfere with the analyses of D/F. EPA believes that aggressive oxidation or reduction
technologies must be used to reduce the concentrations of halogenated organics in F032 . EPA
also expects incineration to be the technology of choice since as of today it has been proven the
best technology available to destroy organics including D/F constituents. EPA also believes
'-.- ' 1204
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that incineration can significantly reduce the levels of PCP below detection and thus,,
eliminating most of the potential interferences anticipated by the commenter.,
1205-
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DCN - PH4P065. ' ' ' -
COMMENTER- Safety-KleerfCorp. . '..."'
RESPONDER JL -
SUBJECT WOOD6 .
COMMENT 14. Even if a 1 (g/kg (1 ppb) level for PCDD and for PCDF can
be achieved through treatment; it may be impossible to confirm
- compliance with such a low UTS level. The Agency has proposed to
. set the F032 wastewater and nonwastewater treatment standards at'
1 ppb (or 1 (g/kg) for all the PCDD and PCDF homologue and
isomer constituents proposed for regulation for F032 wastes. .
Even if a 1 (g/kg level is achievable for PCDD and for PCDF, .
analytical limitations may make it impossible to confirm that, v
such a low UTS level has been met. As has been pointed out to >
the Agency in industry comments on several LDR rulemakings in
recent years; organic waste streams are not easily analyzed for
certain constituents at very low concentrations. The Chemical -.
~ Manufacturer's Association .(CMA) comments on the Phase IV LDR
proposed regulation include a report that discusses why the
Agency should hot establish concentration limits without . - . .
considering analytical limitations. The report recommends that ; _
EPA explicitly state that, given approved test methods,
nondetectable levels of constituents are equivalent to zero
concentration. Rather than repeat all the various issues raised
' in the CMA document, Safety-Kleen incorporates by reference
CMA's comments on this issue. .
RESPONSE
EPA lacks data from the commenter to assess what kind of technical
difficulties will be encountered during the analysis of F032 wastes. EPA contacted the
commenter for a copy of the attachment cited. Since the document was never received, EPA
cannot respond to the commenters statements regarding that report. !
After reviewing the characterization data of the Penta Group, the reported
analytical difficulties, and F032 Characterization studies; EPA has concluded that the reported
"difficulties'1 appear to represent more the unfamiliarity of chemists performing the chemical
analyses with D/F recommended test methods rather than real flaws in the test method. EPA
believes further that the alleged "difficulties" can easily be overcome by routine laboratory ,
clean-jup procedures and the use of appropriate solvents and other laboratory calibration
techniques. EPA has enhanced, therefore, the discussion of these recommended procedures
and calibration techniques in the BOAT Background Document. Also, see the Administrative
Record supporting today's Phase 4 final rule for the technical document titled: Background
Paper Addressing Technical Issues Related to Analysis of F032 Wood Preserving Wastes for
Dioxins and Furans, dated June 19, 1996. *
^ «
-.- 1206. ...
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1207
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DCN PH4P113 -
COMMENTER Chemical Manufacturers-Association
RESPONDER JLABIOSA , ^ '
SUBJECT WOOD6
SUBJNUM 113 ' ' .
COMMENT
B. EPA should allow concentration-based as well as
technology-based criteria to satisfy BDAT for metals in ' :'.'
nonwastewater forms of F032, F034, and F035.
In the preamble, EPA indicates that for metal in nonwastewater
forms of F032, F034, and F030, stabilization is BDAT for chromium
(total),.and that vitrification is BDAT for arsenic. Use of the
word "is" and not the phrase standards "... are based on" implies
that the Agency intends to allow only the use of these specific
technologies to treat these constituents to levels below which
these wastes may be land disposed. However, the regulatory
language in the table at 268.40 indicates that the nonwastewater
standards for arsenic and chromium are numerical standards
CMA has commented in the past that it generally favors .
concentration-based treatment standards for BDAT and that it
supports the allowance of technology-based standards as
an alternative to, and not as a replacement for,
concentration-based standards. We maintain this position. Although
the Agency and CMA may not currently be aware of technologies
other than stabilization and vitrification that could be used to
treat for chromium and arsenic in the wastes described above, we
favor the flexibility afforded by a concentration-based standard
which would allow any technology that can meet these levels as an
alternative. CMA requests that the preamble language be modified to
clarify that any technology that; can meet the levels indicated in
, the table may be used.
In addition, EPA is proposing F032 wastewater and nonwastewater
standards that would require meeting a concentration that does not
exceed 1 ppb (or 1 ug/kg) for all the PCDD and PCDF homologue and
.isomer constituents proposed for regulation for FQ32 wastes.-Even
if a 1 ug/kg level is achievable for PCDD and for PCDF, analytical
limitations may preclude UTS levels this low.
Normally when EPA sets treatment standards for a waste
constituent, a procedure is followed in which both ah "accuracy
correction factor" and a "variability factor" are applied to the
concentration of the constituent observed in the treatment data
that supports the standard. See, Final Best Demonstrated Available
Technology (BDAT) Background Document for Universal Treatment
1208
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Standards Volume A: Universal Treatment Standards for Waste water
Forms of Wastes, 52 (July 1994). The accuracy correction factor is
used to account for analytical .limitations in the available , ,
. treatment performance data, and the variability factor is used '" .
to correct for variations in waste treatment, sampling, analytical
, techniques and procedures, and other factors that affect treatment -
.performance. ' '/..-. . ' '. ,-
. However,' we are hot sure if EPA accounted for variability and
accuracy in setting the universal treatment standards for
nonwastewater forms of these organic'wastes We urge EPA to do so. . .
As CMA has previously,written in its July 9, 1993 comments on the
May 24,1993 Interim final rule on land disposal restrictions for : ^
ignitable and corrosive characteristic wastes whose treatments '
s standards were vacated, organic wastestreams are not easily
'analyzed for. constituents at very low concentrations. CMA
x reiterates its previous recommendation that EPA explicitly states
~ that, given approved test methods, nondeductible levels of .
constituents are equivalent to zero concentration and should also - ' c
. . be applied this.the setting of UTS levels. , . / .;
. f - *
'RESPONSE ,
,' i
The commenter raised four issues and EPA's responses to such comments
follow . " . ' . .
below:
1. Clarification that EPA is setting numerical limits for the regulation of Arsenic
, and Chromium (total) in wastewater and nonwastewater forms.of F032.
EPA is clarifying in today's final rule that EPA is promulgating UTS limits for
the regulation of Arsenic and Chromium (total) ia F032, F034, and F035. Since EPA is
establishing, UTS limits that are expressed as maximum concentrations of these metals allowed
for land disposal, the use of any treatment technologies capable of meeting the UTS limits is
not prohibited except'for those that may constitute impermissible dilution. .
2; "Analytical Difficulties" may preclude the establishment of UTS limits for,
F032. . ' ' ---' ; '' .''
/ i
. EPA'lacks data from the commenter to assess'what kind of technical .
difficulties will be encountered during the analysis of F032 wastes. . ,. .
,: After reviewmg the.characterization data of the PentaGroiip, the reported
. ' ' ' 1209'- . ' .-/'''
-------
./*
analytical difficulties, and F032 Characterization studies: EPA" has concluded that, the reported
. "difficulties" appear to represent more the unfamiliarity of chemists performing the chemical
analyses with D/F recommended test methods rather than real flaws-in the test method. EPA
believes further that the alleged "difficulties" can easily be overcome by routine laboratory :
clean-up procedures and the use of appropriate solvents and other laboratory calibration
techniques. EPA has enhanced, therefore, the discussion of these recommended procedures
and calibration techniques in the BOAT Background Document. Also, see the Administrative
Record supporting today's Phase 4 final rule for the technical document titled: Background.
Paper Addressing Technical Issues Related to Analysis of F032 Wood Preserving Wastes for
Dioxins and Furans, dated June 19, 1996.
3.
EPA should correct the D/F limits for accuracy and variability.
Several commenters were correct in pointing it out that EPA did not correct
the proposed UTS limits for D/F in F032 with accuracy arid variability factors, as typically
done in the calculation of treatment standards of other hazardous constituents prohibited from
land disposal. EPA did not adjust the proposed UTS limits for D/F constituents, nor EPA is
doing so in today's final rule, as explained below.
The UTS treatment limits are based on combustion technologies that EPA
believes will meet the proposed UTS limits for'D/F in F032 as long as the combustion of F032
is conducted in a device that is well designed and well operated. EPA concluded in the
.Solvents and Dioxins rule that a six-nines Destruction and Removal Efficiency (DRE)
combustion device can routinely achieve the promulgated limit (see January 18, 1986, 51 Fit
(1733-1735)). Based on the performance of a four-nines DRE rotary kiln incinerator burning
F024, EPA believes that a four-nines DRE unit that is well designed and operated can also
meet the promulgated UTS limits for D/F (see June 1, 1990, 55 FR (22580-22581). Although
none of the submitted comments or data appear to support the revisions to D/F limits proposed
by the commenters, EPA may revisit this issue in a separate rulemaking if new data become
available. , - .
However, EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of.
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such
treatment limits allowances as the analytical detection limit (compliance) alternative. Facilities
seeking the disposal of such combustion ashes must satisfy the provisions in the 40 CFR
268.40 (d) (1) through (3) and 268.7 (b) (5) (iii). (Also, see June 1, 1990, 55 FR (22541-
22542).) , ,-' .. '
;'-..- \" '. ;'''-
, In'addition, EPA has set an alternative compliance treatment standard that sets
combustion "CMBST" as a treatment standard for D/F for nonwastewater forms of F032;
To qualify for a "CMBST" treatment standard, the combustion, device should be operated
1210 ' ' '
-------
under a 40 CFR 264 Subpart 0 or under a 266 operating permit and'the Permit writer
will use his/her Omnibus power authorities to determine if a combustion device seeking to treat
F032 can be deemed well operated and well designed combustion devices. If deemed a well '
operated and designed combustion device, the facility will not have to monitor the
concentrations of D/F constituents in wastewater and nonwastewater forms arising from the
combustion of F032. EPA feels therefore that such alternative compliance treatment standard
fully addresses the concerns, raised by .the commenters.,.
4. Proposal that "nondetection limits" are equivalent to zero detection.
EPA believes the commenter is concern that a detection limit in-a treated waste
above a UTS numerical limit may fail to meet the applicable treatment standard even if the
targeted analyte is below the detection limit. - EPA believes that a "npndetection limit" is not
feasible way to address this concern. EPA believes that a constituent shown below a particular.
targeted detection limit means that the constituent is either destroyed by the employed ._
technology, mask in the waste residue due to matrix interferences, or it could be measured in
concentrations below the targeted detection limit. As a result, it could be possible that the
constituent of LDR concern is still above the applicable UTS limit should the targeted selection
limit be above the UTS promulgated limit, therefore, EPA believes that a facility could still be
deemed in violation of the applicable limit if EPA detects such constituent above its UTS
.limit. , , ', . ' ' .
f f . . ' - -
However,.EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such
treatment limits allowances as the analytical detection limit (compliance) alternative. Facilities
seeking the disposal of such combustion ashes must satisfy the provisions in the 40 CFR
268.40 (d) (1) through (3) and 268.7 (b) (5) (iii).- (Also, see June 1, 1990, 55 FR (22541-.
22542).) Another option available to the commenter is to verify if the waste of concern is
different from the one supporting the UTS limit and seek from EPA a treatabiliry variance
pursuant to provisions in the 40 CFR 268.44. , '..."'. :
1211
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1212
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DCN ; PH4P023 ~ * . , . ' '. ' . .
CQMMENTER Beazer East, Inc. ' " . '' , '
RESPONDER JL . : -
SUBJECT. WOOD? , ; "
COMMENT 'a. BCD Technology EPA has asked for comment on the use of BCD
technology and other technologies to treat dioxm/furan. 60- *.'.
Fed. Reg. 43681, Col. 3. Beazer/does not believe that the BCD
technology has been sufficiently demonstrated to warrant its
inclusion in thei list of candidate nonwastewater treatment " /
technologies. Our information suggests that EPA-'researchers, at
its Risk Reduction and Engineering Lab ("RREL/ORp".)v advised
that demonstration tests at two sites have resulted in evidence
that the dechlorination process in the "liquid reactor" is not
successfully performing, specifically for dechlorinating .
, dioxin/furan. A test in 1993 indicated that dioxin/furan could
be removed from soils, but the off-gas stream treatment could
riot be evaluated due to analytical interferences. A recent 1995
test in Region X was terminated due to the inability of the
, process to meet the air emissions standards for dioxins/furans.
Id. b. Shirco Infrared Thermal Process The Agency has
suggested in the Proposed Rule that the Shirco infrared thermal
process can be used to treat dioxin/furan. 60 Fed. Reg. ,43681.
This process was tested by EPA in 1987 for destruction of PCBs. ' . "
Id. However, Beazer found no data in EPA's Superfund Innovative
Technology on-line database regarding use of the technology for
destruction of dioxins/furans. Indeed, the Dioxin Treatment
" .Document indicates that although infrared destruction has
, advanced to commercial use m Germany, no permitted facilities
exist in the United States for destruction of dioxins/furans. !
Dioxin Treatment Document, p. 26. c. Hubber Supercritical
Oxidation Thermal Process The Agency also suggests that the
Hubber supercritical oxidation process can be used to treat
dioxm/furan wastes. 60 Fed. Reg. 43681, Col. 3. According to
the Dioxin Treatment Document, however, the Hubber supercritical
oxidation thermal process referred to in the Proposed Rule can
only be used to treat liquid wastes and perhaps finely ground, -,
thin slurries. Dioxin Treatment Document, p. 60. It has not
' been tested at a commercial scale on any solid wastes or even
the proposed thin slurries, thus further limiting its
appropriateness as a viable technology. Id. d. Pyrolitic.
Destruction Pyrolitic destruction is another technology that EPA
believes is capable of treating dioxin/furah wastes. Id. Like
the Hubber process, pyrolitic destruction of dioxin/furan has
' . ' i . ..
* *
1213 -' .
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the same limitations in that it can only treat liquid wastes and
perhaps finely ground, thin slurries (with a viscosity similar
to-30 wl. motor oil). The technology is being pursued by only
one company and has not been demonstrated at commercial scale
for destruction of dioxin/furan. Dioxin Treatment Document, p.
, 60. e. APEG and KPEG Processes In the Proposed Rule, EPA
. . requests comments on whether the APEG or KPEG processes can be
used to meet the dioxin/furan LDRs. Id.. The APEG and KPEG
processes were introduced in the 1980s and found application at
commercial scale for dechlorinating organic fluids and oils.
However, the treatment of nonwastewaters .has not progressed
successfully since its introduction. As an example, a Region VI
CERCLA site in Houston mobilized a full scale APEG treatment
system owned by Galson Research Corporation six or seven years
ago and was unable to meet the treatment requirements for PCBs.
The unit was demobilized and Galson has not pursued the -
technology further, f. Ultraviolet Photolysis EPA has also
requested information on die use of ultraviolet photolysis in
treating dioxin/furan. 60 Fed. Reg. 43682, Col. 1.. The use of
' ultraviolet photolysis for destruction of dioxin/furan in soils
requires dissolution of the dioxin/furan from the soil into a
solvent extract and subsequent destruction of die dioxin/furan
in the liquid solvent. This'technology will face the same
developmental difficulties impeding the development of critical
fluid extraction for soils (material handling and agglomeration)
and for the BCD liquid reactor (destruction of the dissolved
/ dioxins/furans in the solvent extract to levels low enough to
allow recycle of the solvent). Further, the process has not yet
been demonstrated at commercial scale, g. Biotreatment
Finally, the Agency .proposes the use of biotreatment for
wastewater. 60 Fed. Reg. 43681, Col. 1. Beazer contacted
several water treatment equipment manufacturers to verify that
the proposed treatment standards could be achieved with the
specified technologies. Zimpro, the manufacturer of one of the
most effective wastewater biotreatment systems available had no -
data to support removal of dioxin/furan to the proposed UTS
levels. Because the ability of biotreatment to'achieve the
very stringent dioxin/furan UTS levels for wastewater was not
confirmed by Beazer's contacts with equipment vendors, Beazer
requests that EPA provide performance data to confirm the
assertion made above regarding biotreatment of wastewaters.
RECOMMENDATION:
RESPONSE . ,
1214
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.'..-. The commenter raised concerns on whether the treatment technologies
mentioned by EPA in the Phase 4 preamble and the Proposed BDAT Background Document
for F032/F034, and F035 are commercially available to meet the proposed UTS limits. The
. commenter has also pointed out to potential waste/soil characteristics that may limit the
application of the treatment technologies suggested by EPA as potentially applicable to
contaminated media. EPA has addressed and incorporated specific comments on each
soil/groundwater remediation technology described by the commenter into the Final BOAT
Background Document for Wood Preserving F032, F034-,-and F035, April 15, 1997 (see,
specifically, Section 6 and Appendix Kin such BDAT Background Document). . .
EPA notes', however, that none of these technologies have changed EPA
determination of the BDAT treatment technology models that support the UTS treatment
standards promulgated, today, for eachone of the regulated constituents .in F032, F034, and
F035. EPA has found, however, that energy and chemical intensive remedial technology
trains are most likely to enable members of the regulated community to meet the promulgated.
treatment standards since these technologies can treat, generally, within one or two orders of >
magnitude of the UTS limits and presumably, may be able to undergo optimization for ,
soils/groundwaters that can be pretreated.to undergo effective treatment. EPA also recognizes!
that there may be instances where some contaminated media may be unable to meet the .
treatment standards due to matrix interferences or where.EPA is persuaded that the treatment
standards are not appropriate. (See; for example; the memorandum titled: Use of Site^Sp^gifjp
Land:PJSPQSal Restriction Treatability Variances Under 40 CFR 268.'44(h) During Cleanups..
front Michael Shapiro, Director , Office of Solid Waste and Steve Luffig, Director, Office of
Emergency and Remedial Response, to RCRA/CERCLA Senior Policy Mangers, Region I-X,
dated January 8, 1997.) -
Although EPA believes that treatabiiity variances under the 40 CFR 268,44(h)
will be effective, generally, in addressing circumstances where the contaminated media cannot
meet the treatment standards or where the treatment standard may be inappropriate, the EPA
has identified hi the Final BDAT Background Document other potential waivers or variances
that may lessen the impact of the land disposal restrictions promulgated today.
1215
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DCN . PH4PQ32 ' ' ,. .'''',
COMMENTER Pehta Task Force ''''' . "
RESPONDER JL
SUBJECT, WOOD?
SUBJNUM 032 v ;
COMMENT ' . .
II. ALTERNATIVE TREATMENT STANDARDS PROVIDE THE ONLY
PRACTICABLE SOLUTION. .
A. EPA Should Establish Incineration As An Alternative Treatment
Standard. . - ' ' ' -
Incineration in a four 9's combustion unit currently is the only
practicable technology for treating F032 waste streams. Because of
the stigma problem, that technology will be unavailable if the
Agency sets treatment standards for dioxin/furan constituents in
the waste: In our view, the problem can most readily be addressed
by setting alternative treatment standards that allow a generator
to meet either the numerical treatment standards for dioxins/furans
or a technology standard specifying incineration. The provision
for incineration as a technology standard would solve the stigma
problem in that four 9's incinerators.and BIAS would no longer have
any reason to decline to take the wastes. The
alternate performance-based numerical treatment standard would
allow the generator the flexibility of selecting any applicable
treatment method as long as the numerical treatment standards are
met. This would provide adequate incentives to the continued
development of alternate non-incineration technologies..
EPA appears to believe, and has oft stated, that incineration
destroys dioxins and furans to levels below analytical detection.
Because EPA believes that incineration will necessarily destroy the
dioxins and furans in F032 wastes, there is no need to establish
dioxm and furan standards. Incineration will serve to ensure that ,
these constituents are appropriately treated.
To the extent EPA would prefer to set some concentration-based
limits to provide a mechanism to ensure proper combustion
performance of individual treatment units, it can
designate polycyclic aromatic hydrocarbons ("PAHs") as part of the
incineration standard. See Attached report entitled "Evaluation of
Potential Surrogates for Dioxins in Wood Treatment Residues."
(Tab 7). The PAHs have similar physical properties to the
~~ dioxins/furans in terms of their relative vapor pressures; boiling
points, and aqueous stability. Also, many of the PAHs are
more difficult to burn than the dioxins/furans. The table below
provides a ranking of the thermal stability of various compounds on
' . ' ' 1216 . . . '
-------
the basis of the temperature required for 99 percent destruction
given a reaction time -of 2.0 seconds under'oxygen1 depleted '
conditions (designated" T99 (2) degrees C"). As shown in .the table,
many of the PAHs --i.e., naphthalene ~ are ranked as more
'thermally stable than the listed dioxins. (Furans are considered
to be less stabie than dioxins and thus necessarily would have a .
lower ranking score.) .
[TABLE IN TEXT NOT REPRODUCED HERE.]
Moreover, .a number of PAHs - naphthalene, benz(a)anthracene,
benzo(a)pyrerie, benzo(k)flouranthene, dibenz(a,h)anthracehe and
,indeno(l,2,3-c,'d)pyrene are present insignificant quantities in F(
32 wastes. See Tables.iifAttachment at Tab 7.As such, these PAHs
are present in sufficient concentrations to allow analysis "-
and detection in the combustion.residues.
The relative difficulty of analyzing for dioxins and furans in
F032 wastes provides an additional justification for establishing
an alternative standard based on incineration.technology. In
general, numerical standards are established for waste constituents
which are amenable to analyses, and standards specifying specific
treatment technologies are developed for wastes that are difficult
to analyze. See Final Best Demonstrated Available Technology (BOAT)
Background Document for U and P. Wastes and Multi-Source Leachate
(F039), Volume G; at 1-2 (May 1990), Indeed, the
treatment standards for a significant number of waste codes specify
a technology based treatment. As discussed in Section 3.8.3 of the
F032 BDAT Background Document, there are significant problems
associated with the analyses of dioxins/furans in F032 wastes/
These problems are fully described in many of the technical ,
documents found in the docket to this rulemaking. As EPA's
contractor have observed in one such report: »
"These samples also had a devastating effect on the performance of
the capillary chromatography column during the GC/MS analysis!
Injecting the samples without dilution caused immediate and
irreversible damage to the column to the point where virtually all
of the compounds would be lost even in standards. It is possible
that the internal standards were actually present in the final
extract but could not be detected due.to the degradation of the
capillary column. ,
The nature of this interference does not lend itself to .
straightforward documentation. Every time the samples were injected
in either laboratory, a chromatogram of baseline noise and column
' . . ' ' 1217 ' . ' . ' "
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bleed would result, and all subsequent injections would also :
give primarily baseline noise and column bleed. This would result
in breaking down the instrument, cleaning the chromatographic
'system, replacing the column, recalibrating, and trying again."
In light of these significant analytical difficulties, and the .
availability of other constituents, I.e.,PAHs, to provide a
measure of proper combustion performance, there is no
- justification for requiring that dioxins/furans be analyzed for in
combustion residuals. ;
RESPONSE . ' .: .
. 4
Jn response to comments from the Penta Task Force and the American Wood
Preserving Institute, the EPA has also proposed and is promulgating in today's rule an .
alternative compliance treatment standard that sets combustion ("CMBST") as a treatment
method for D/F constituents in F032. \EPA is also promulgating treatment limits for D/F as
proposed.
EPA has promulgated, however, a revised "CMBST" compliance alternative.
which limits the availability of the "CMBST" to those combustion devices in compliance
with applicable combustion standards in the 40 CFR 264 Subpart O, or 40 CFR 266. F032
wastes combusted in combustion devices operating under 40 CFR 264 or 266 do not have to
monitor the concentrations of D/F left behind in combustion residues. However, the facilities
must meet UTS numerical limits applicable to each organic and metal constituent regulated in
F032 as a prerequisite to land disposal. . ,
It should be emphasized that facilities seeking the combustion of F032 in an .
incinerator regulated under a 40 CFR 265 Subpart O do not qualify for a "CMBST" treatment
standard.. F032 residues arising from 40 CFR 265 units must meet the applicable UTS .
numerical limits for each regulated D/F constituent as a prerequisite to land disposal.
EPA's authority to prescribe treatment limits or methods of treatment under
the LDR are set under section 3004 (m) of HSWA. Under such HSWA provisions, EPA is
directed to set treatment standards that would reduce short- and long-term threats to the human
health and the environment.
» In today's rule, EPA allows F032 to comply with either a numerical limit or
with the use of a combustion device operated in accordance with Part 264, incinerators, or Part
266, Boilers and Industrial Furnaces (BIFs). EPA believes that by limiting the promulgated
method of treatment, i.e., availability of the combustion ("CMBST") standard, to a Part 264
incinerator or 266 BIF, EPA can ensure that the combustion of D/F in F032 is conducted in a
manner that is protective to the human health and the environment. ^
1218
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EPA has promulgated similar kinds of technology standards for hazardous
wastes regulated under Part 268.43 and hazardous debris under Part-268.45. These specific
treatment standards under Parts 268.42 and 268.45 prescribe treatment methods and EPA has
relied on permit authority, federal/state air emission standards, or promulgated operational
technology performance requirements to ensure that the technology treatment methods are ..
protective to the human health and the environment; and in particular do not result in the type
of impermissible cross-media transfer of hazardous constituents referred to by -the Chemical
Waste Mana£ernejit court. '",-. -" ' '
In addition, EPA does not accept the commehtefs' assertion that analyzing for
non-D/F constituents should serve as a surrogate for D/F destruction to BE)AT levels.
Although demonstration of destruction of the other constituents is certainly some evidence-of
destruction of D/F as well, the.Agency believes some added assurance is desirable given the '
toxicity of D/Fs. This, added assurance is the part of the alternative standard assuring that
treatment is occurring in a combustion unit which is known to operate with good combustion
efficiency, either because it is subject 'to an explicit regulatpry standard .or (in the case of
interim status incinerators) has made a specific demonstration of such efficiency.
1219
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DCN PH4P032 . - ' '
GOMMENTER Penta Task Force
RESPONDED JL
SUBJECT WOOD?
SUBJNUM 032 ' '-'<'. . . ' .
COMMENT ;-"'' ;
D. Requiring De Facto Six 9s Incineration Of F032 Wastes Is
Unjustified And Contrary To EPA's "Toxic" Classification For These
Wastes. , ~
EPA in 1990 expressly considered whether to designate F032 wastes
as an acutely hazardous dioxin-ccintaining waste and thereby subject
the waste to the special management provision of 40 C.F.R. §§
261.30(d), 268.31, which includes treatment by an incinerator
meeting six 9s DREs. See 55 Fed. Reg. 50,450 (Dec. 6, 1990) (final
F032 listing rule). See also 53 Fed. Reg.53,282, 53,291-53,308
(Dec. 30, 1988) (proposed rule). After an exhaustive review of
the data, EPA concluded that F032 wastes should be designated as -
toxic (rather than as acutely hazardous). As a consequence of this
1990 listing decision, F032 wastes should not be subject to the
'' exacting standards for incineration (incineration by a six 9s
unit) that are required for acutely hazardous wastes.
EPA's decision to classify F032 wastes as toxic rather than
v acutely hazardous was firmly grounded in the record. At the time
the Agency considered the designation of F032 wastes, the National
Toxicology Program ("NTP") had published a cancer bioassay on
commercial pentachlorophenol formulations of varying HxCDD content.
The NTP data demonstrated that HxCDD was not a valid predictor of
the risk associated with pentachlorophenol wastes. As EPA
explained:
In light of the NTP study results, EPA can no longer use HxCDD as
a reasonable surrogate to indicate the toxicity of . .
pentachlorophenol The NTP study provides carcinogenic potency
values for pentachlorophenol products such as . ,
"purified"pentachlorophenol, 0:245 (mg/kg/day)-l, and technical
grade pentachlorophenol, 0.788(mg/kg/day)-l, which are within the
range of values associated with other wastes listed as toxic.
, 55 Fed. Reg. at 50,467. In short,, because the NTP study
. demonstrates that the carcinogenic potency of F032 wastes is well
. within the range of potency values of other toxic wastes regulated
under RCRA, the Agency had no choice but to designate F032 wastes
as a toxic waste.
Having decided the issue in 1990, EPA now appears to be attempting
through the RCRA land disposal ban program to require that F032
. . ~'. J' - '1220 « * ' ; . '-
-------
. ".'.;.' wastes be treated as if they were acutely '. -
hazardous dioxin-containing wastes, i.e., by incineration to six 9s
DRE.-This conclusion is apparent from the record. In the proposed ,
rule, EP.A. states that "it has identified one commercial " ' v.
facility currently permitted to combust wastes that may have PCDD
and PCDF constituents with concentrations one to two orders of
.magnitude higher than those levels found in F032." 60 Fed.Regl '" '
' 43,681. That statement necessarily refers to the Aptus.incinerator
. . in Coffeyville, Kansas because Aptus is the only "fixed-base" , .
commercial incinerator permitted to handle dioxin-contaminated .
wastes. See El Digest, "Environmental Information," Minneapolis,
MN(June 1994), at 22. The draft RIA also suggests that EPA
contemplates six 9s incineration for F032 wastes, see, RIA, 3-7 . '
("Under this rule, wood preserving facilities will be required . -,
to incinerate dioxin-contaminated waste (i.e., F032) nonwastewaters
and demonstrate a destruction and removal efficiency rate of
99.9999 percent."); see, id., Exh. ES-6 ri.a. ("Incineration costs :
for F032 nonwastewaters assume a 99.9999 percent destruction
and removal efficiency rate"), as do statements in various staff -
memoranda that have been added to the'rulemaking record. See, e.g.
Memorandum from J. Labiosa to R. Kinch and L. Rosengrant, Re:
1 "RegulationofDioxins in F032, F033, and U242" (undated) (noting
that rotary kiln incinerators followed with adequate air pollution
control devices (APCDs) are likely, to meet existing six 9s DRE
performance requirements). '
. Having decided the issue in 1990, we believe that is improper, for
EPA now to propose a treatment strategy that treats F032 wastes as
though they had been identified as acutely hazardous and relies on
the management of the wastes in a six' 9s incinerator. But unless. ,
the stigma issue .is squarely addressed in this rulemaking,
precisely that improper result will come to fruition.
RESPONSE , '-.".'. .
It appears that the commenter was concerned that since the BDAT model
supporting numerical limits for D/F constituents was based on six 9's Destruction and .
Removal Efficiency (DRE) incinerators, facilities seeking compliance with the numerical
limits'in RCRA incinerators, cement kilns, of other industrial furnaces achieving a four 9's
DRE were likely to fail the proposed UTS limits. It also appears that EPA's discussions in ,
the preamble and the BOAT Background Document for F032, F034, and F035 that at least
one facility was permitted to treat D/F containing wastes as difficult to treat as F032 led the
commenter to believe mat EPA .was considering limiting the combustion of F032 to a six 9's
' DRE - RCRA combustion device. EPA is clarifying, therefore, that in today's rule EPA'is
',.'''.'" ' '.' '" 1221 . . '.""''. "
-------
not amending §§264.343 (a) (2) or 266.104 (a) (3) to.compel the combustion of F032 or F024
in a six 9's Destruction and Removal Efficiency combustion device. Nor has EPA proposed
that the combustion of F032 or F024 be only conducted in a six 9's or a four 9's ORE -
RCRA combustion device. ''.'.
/It should be noted that although the BOAT combustion technologies supporting
the development of UTS limits for D/F regulated in rionwastewater forms of F032 and F024
met a RCRA incineration performance of six 9's ORE performance, the modeled
compliance treatment alternative of "CMBST" was based on the performance a four 9's ORE
-.RCRA 40 CFR 264 Subpart O, rotary kiln incinerator combusting F024. Data from the
F024 incineration study shows that a well designed and well'operated four 9's DRE
incinerator can also meet the proposed limits of 1 ppb for nonwastewater forms of F024.
Based on this information, EPA believes that RCRA Omnibus permit authorities can be used
under;40 CFR 264 Subpart O and 40 CFR 266 to ensure that the combustion of F032 (and
F024) is conducted in a well designed and well operated combustion devices and thus, .
minimizing the release or generation of D/F during combustion .
1222,
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*
,DCN PH4P039 - . . ' : ' '.'"-
. GQMMENTER AWPI
RESPQNDER JL '^ ,
SUBJECT WOOD? '
SUBJNUM '039 ' .-.''..
' COMMENT F032 REQUIREMENT FOR SIX-9'S INCINERATION IS
'UNWARRANTED . '
EPA is inappropriately requiring treatment standards for F032 at levels
accorded to acutely hazardous waste. This is evidenced by . . .
several statements. The Agency "identified one facility ' "... .
currently permitted to combust, wastes that may have PCDD and
PCDF constituents one to two orders of magnitude higher than
those levels found,in F0321" (the Aptus facility). "Incineration
costs for F032 non-wastewaters assumes a 99.9999 percent
destruction and removal efficiency" according to the draft RIA.' . . .
An undated .internal memorandum between OSWER staff noting that
rotary kiln incinerators followed with adequate air pollution ; .
'' ' s control devices (APCDs) are likely to meet existing six 9',s DRE '
performance requirements. EPA has already given a thorough ,
; review to the proper classification of F032 wastes. The Agency
cited.the results of the National Toxicology Program (NTP) ' ~. , >
cancer bioassay on commercial pentachlorophenol formulations of
, varying HxCDD content as further,evidence in support of a "toxic
waste" classification..COMMENT: This "backdoor" approach to
xregulate F032 as a de facto "acutely hazardous waste" is
inappropriate and further evidence of the need for EPA to . ' . '.
reconsider the UTSs. for F032 wastes. :
RESPONSE . , . .
It appears that the commentor was concerned that since the BOAT model
supporting numerical limits for D/F constituents was based on six 9's Destruction and Removal
Efficiency (DRE) incinerators, facilities seeking compliance with the numerical limits in .
RCRA incinerators, cement kilns, or other industrial furnaces achieving a four 9's DRE
were likely to fail the proposed UTS limits. It also appears that EPA's discussions in the
preamble and the BDAT Background Document for F032, F034, and F035 that at least one
facility was permitted to treat D/F containing wastes as difficult to treat as F032 led the
commentor to believe that EPA was considering limiting the combustion of F032 to a six 9's
DRE - RCRA combustion device. EPA is clarifying, therefore, that in today's rule EPA is
not amending §264.343 (a) (2) or §266.104 (a) (3) to compel the combustion of F032 or F024
in a six 9's Destruction and Removal Efficiency combustion device. Nor has EPA proposed
1 that the combustion of F032 or F024 be only conducted in a six 9's or a four 9's DRE -
RCRA combustion device. - .
1223
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-f
It should be noted that although the BOAT combustion technologies supporting
the development of UTS limits for D/F regulated in nonwastewater forms of F032 and F024
met a RCRA incineration performance of six 9's ORE performance, the modeled compliance
treatment alternative of "CMBST" was based on the performance a four. 9Js DRE - RCRA 40
CFR 264 Subpart O, rotary kiln incinerator combusting F024. Data from the F024
incineration study shows that a ,well designed and well operated four 9's DRE incinerator can
also meet the proposed limits of 1 ppb for nonwastewter forms of F024. Based on this
information, EPA believes that RCRA Omnibus permit authorities can be used under 40
CFR 264 Subpart O and 40 CFR 266 to. ensure that the combustion of F032 (and F024) is .
conducted in a well designed and well operated combustion devices and thus, .minimizing the
release or generation of D/F during combustion. -
1224 -
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DCN. PH4P027 . ' ' " .--..'
COMMENTER Rollins Environmental ' . ', .. \ '
RESPONDER JL
SUBJECT WOODS . '
SUBJNUM 027 - ',' .. ' ' ..'.''.'
COMMENT ,'..' . ' . ' ,'"'- ^ ''.'.,
EPA is proposing treatment standards for the wood preserving ' ,
wastes F032, 34, & 35. For the purpose of these comments RES is
assuming the proposed treatment standards for these wastes'are-
those listed in the preamble of this proposed rule. The treatment ,
standards listed in the regulatory language of this proposal rule . ,.
do not coincide with the hazardous constituents of the, three - ,
. V wastes, nor do they reflect the intent expressed throughout the ':- :
preamble. Therefore we are assuming the treatment standards .in the
preamble are the proposed standards for these three wastes streams.
RESPONSE , "
: i i ' .v -' ", . .
EPA identified several discrepancies in the list of hazardous constituents and
the constituent limits proposed for regulation in several pages of the 60 FR (43680-43682 and
43694-43697). EPA later issued a Correction Notice to clarify what portions of the preamble
were incorrect and what portions were correct (see 60 FR (546451), October 25, 1995). Also,
several commenters and two technical journals pointed out to these discrepancies. EPA is
promulgating pursuant to die Correction Notice unless otherwise noticed in this preamble and
in the Final BDAT Background Document for these Newly Listed Wood Preserving Wastes
(F032, F034, and F035). .
1225
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DCN PH4P032 '
CQMMENTER THE PENTA TASK FORCE
RESPONDERJL .
SUBJECT WOODS ;
SUBJNUM 032 .
COMMENT -
s
- For wastewater forms of F032. EPA has proposed
treatment standards for dioxihs and furans that are
. ; - in the'parts-per-trillion ("ppt") range. The proposed
standards were transferred from the universal
treatment standards for dioxins/furans in organic
wastewater. The UTSs, in turn, are based on
. biological treatment of wastewaters that contain
very low concentrations of dioxins and furans arid
-the treatment standards were set by multiplying the
average effluent concentration after treatment times
a variability factor of 2.8 and an accuracy
. . - ' correction factor of 5.0. UTS BOAT Background
, Document. Vol. A, § 5-6.
f
The universal treatment standards for the various
regulated dioxin and fur an hpmologues, with the
exception of PeCDF, were developed by
transferring data from the" treatment of 9 It should
be noted that EPA applied the 2.8 variability factor
and 5.0 accuracy correction factor in establishing
the dioxin/furan universal treatment standard, for
wastewaters, but inexplicably failed to do so when
establishing the UTS standard for dioxins/furans in
nonwastewaters. See id., Vol. B at Table 6-1.
> . j
TCDD-containing wastewaters. The concentrations
of TCDD in the wastewater streams ranged from
0.00004 ug/L to 0.0118 ug/L. Id., Tables 5-156,
5-155. In contrast, the average .concentration of
\ dioxins and furans in the wastewater forms of F032
wastes as reported by EPA are in the range of 0.9
ug/L to 60 ug/L, or roughly 2,000 to 5,000 times
, more concentrated than in the wastewaters used to
develop the universal treatment standards. It is
improper for EPA to. transfer the UTS standard
. because there is no .assurance that the UTS standard
1226
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\ '.'__'
can be met with the higher dioxin/furan
concentrations found in the F032 wastewatef
streams. " ..
B., Waste water Treatment Technology Cannot Achieve The Proposed BOAT
Treatment Standards. . ' . , ' -, ; . ,
* f '.;"-'
EPA has selected wastewater treatment ,
technologies, such as biological treatment, as ,
BDAT for wastewater forms of F032 wastes. But -
EPA has incorrectly concluded that such treatment
technologies can be used to meet the .
parts-per-trillion dioxin/furan concentration limits
of the proposed rule. , . , , . .
x - -.'''
.- - '
, . -The problem with EPA's analysis is most sharply
illustrated by considering the biotreatrhent
performance data used'in establishing the universal . '" "
.' > treatment standards for dioxins and furans in .
organic wastewaters. The data indicate a removal,
efficiency of roughly 78 percent. See UTS BDAT
Background Document for Wastewaters, Tables
5-155, 5-156. If the same removal efficiency were
achieved for dioxins/furans in the more
concentrated F032 wastestreams, it is clear that the
proposed treatment limits would not be met. The ;
- dioxins/furans in F032 wastewaters are in the range
of 0.9 ug/L to 60 ug/L! Seventy eight percent
removal would only reduce the dioxins/furans in
the.effluent to 0.18 ug/L to 12 ug/L. These final ^
concentrations are from 2 to 190 times higher than , ' -
the proposed F032 wastewater treatment standard
of 0.063 ug/L (or 5 to 343 times the proposed F032
wastewater treatment standard of 0.035 ug/L for
PeCDF). .' \; '
3 '
,. Stated another way, if the Agency had evaluated
data oh the biotreatment of F032 wastewaters, it
would have observed dioxin/furan concentrations in
the treated effluent in the range of 0.18 ug/L to 12 ,
ug/L (based on an influent dioxin/furan
cbncentration in the range of 0.9 ug/L to 60 ug/L
and a 78 percent removal efficiency). Application
... ' : '; .- 1227 .' ' '
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of the standard variability factor of 2.8 and the
accuracy correction factor of 5.0 would have
resulted in an adjusted treatment standard in the
range of 12.6 ug/L to 168 ug/L (based on 0.9 ug/L-
x 5 x 2.8 and 12 ug/L x 5 x 2.8), or between 200 to
2666 times higher than the proposed 0.063 ug/L
limit (360 to 4800 times higher than the proposed
0.035 ug/L limit for PeCDF). In sum, the BOAT
standard in the proposed rule does not reflect the
concentration of dioxins/furans that would result
from biotreatment and, as such,_must be adjusted
upward.
RESPONSE - . . . ;, ;. ''.--.
EPA agrees with the commenter that the concentrations of PCDD and PCDF
in wastewater forms of F032, as generated, will be, normally, much higher than those found
in EPA's data base describing influent wastewaters to bipreactors. EPA is not persuaded,
however, by comments emphasizing that the treatment limits are not achievable. .
The practice of feeding diluted concentrations of PCDD and PCDF to
bioreactors is an expected result in any biological wastewater treatment process because PCDD
. and PCDF can be highly toxic to microorganisms. One way to overcome such difficulty is to
acclimate micro-organisms to some threshold tolerance levels of PCDD and PCDF coming; into
the reactor. Another way to enable the treatment of PCDD and PCDF in bioreactors is to
reducetheloadingsofPCPoUs, PCDD, PCDF, and toxic metals. The loadings of such
pollutants can be reduced with the use of appropriate chemical/physical separation processes
(e.g. oil/water separators, distillation, flocculation, or dissolved air'flotation), routing the
pretreated wastewaters to holding tanks, adjust their pH, or diluted these wastewaters with
other wastewaters. In addition, the use of activated carbon adsorption for reducing the levels
of nonpolar constituents such as PCDD and PCDF from bioreactor effluent wastewaters can
also enable facilities to meet the promulgated limits for PCDD and PCDF. EPA has
determined that such practices, including the use of activated carbon adsorption systems, are
also common in the .wood preserving industry and can be optimized, generally, to meet the
treatment limits promulgated today. In fact, activated carbon adsorption is among the most
prescribed treatment method for groundwater or surface waters abatement in Records of
Decisions where wood preserving facilities reported PCP, PCDD, and PCDF as
groundwater/surface water pollutants. (See Appendix K in the Final BDAT Background for
Wood Preserving Wastes (F032, F034, and F035), April 15, 1997.) EPA is thus promulgating
treatment standards for PCDD and PCDF in wastewater forms of F032 as proposed.
1228
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DCN PH4P039 : ' . . ' ',.:'
COMMENTER AWPI , /. ' . .
'RESPONDER JL . v ; . -
. SUBJECT .WOODS ' : . .
. SUBJNUM 039 ''-. '..''. - . \ . :
COMMENT TREATMENT STANDARDS FOR DIOXIN AND FURAN CONGENERS
.DO NOT REFLECT RISK The Agency ignores the differences in ' :
the risks associated with each of the dioxin and fiiran congener .'.-; .,, ,
, constituents. EPA proposes the same concentration treatment ,
.'' ,, standard for ail dioxin and furan non-wastewaters of 1 ppb while
wastewater treatment standards are set at 0.000063 mg/L. Having '
, identified 2,3,7,8-tetrachloro-diberizo-p-dioxin as the most .
toxic of the polycnlorinated dibenzo dioxin/furan congeners, EPA ;
adopted toxicity equivalency factors (TEFs) which permits the
, conversion of any PCDD or PCDF congener into an equivalent .
concentration of 2,3,7,8-TCDD or Toxicity Equivalents (TEQs) Of
the six congeners identified in the proposed rule, five are .
significantly less toxic than 2,3,7,8-TCDD. . ''-.-' .* .
Pentachlorodibenzo-p-dioxins (2,3,7,8-PeCDDs) and
pentachlorodibenzd-p-furans (2,3,4, 7,8-PeCDFs) each have a TEF
'of 0.5. Hexachlorodibenzo-p-dioxinsr(2,3,7,8-HxCDDs),
, tetrachlorodibenzo-p-furans (2,3,7,8-TCDFs), and : -.
hexachlorodibenzo-p-furans (2,3,7,8-HxCDFs) each have'a TEF of
;..-. 0.1. COMMENT: EPA should set treatment standards'that are
reflective of the actual risks posed by the individual PCDD or
PCDF congeners by using TEFs. Further, EPA should address the <'
risks posed by the constituents of concern when disposed in a :
secure Subtitle C landfill, not the residential risk model that , ,
the Agency has utilized. ^
RESPONSE ,
The commenter has asked EPA to reexamine the constituents selected for
regulation such that EPA only regulates those that represent the "highest risk". The
, commentet suggests that EPA regulates D/F constituents in F032 based on total equivalency
factors which allow the conversion of any polycnlorinated dibenzo-prdioxin (PCDD) and
^polychlorinated dibenzo-p-furans (PCDF) into an equivalent concentration of 2,3,7,8-
tetrachlorodibenzo-p-dioxin. The'commenter feels such an approach may be more appropriate
, for F032. " ' ;'.'' ; . ' '
' " *
..-.' Section 3004 (m) gives EPA regulatory discretion to set either technology or
risk based limits that would set the maximum concentrations of D/F in F032 that can.be land
disposed. EPA's selection of regulated constituent was based on .the concentration of
untreated constituent measured in the untreated waste and the likelihood, that mese.constituents
\ - ' t ' ' - .
.'. \ ' . , - ' ' . 1229 '" ' » ' '' . ^; '
-------
can regulate other D/F constituents isomers and homolOgues present in F032. EPA'beiieves
that . - , --.... ....
this approach is also permissible under the land disposal restrictions since the selected
constituents are. present at concentrations above UTS limits and these constituents are also
hazardous constituents of concern that drove EPA's decision making for listing F032 as a
hazardous waste under Subtitle C of RCRA. Certainly, there is no suggestion that the 1 ppb
level is a level at which threats to the human health and the environment are minimized. v
Although there remains considerable uncertainty as to what the ultimate minimum threat level
should be, it is clear that potent carcinogens like D/F constituents are not regulated past such
point. (See, for example, 61 FR 18780, April 29, 1996.) EPA also points out that although .
the hepta- dioxin and hepta-furans were constituents of listing concern, EPA chose not to
regulate all their homoiogues and isomers since EPA determined that regulation of the tetra-,
penta-, and hexa- will regulate them too. Likewise, EPA identified octa-congeners and
isomers of dioxin and furan constituents and they were not regulated since they can also be
regulated by the selected constituents. '
The commenter is correct to point out that based on toxicity equivalents
(TEQs) --the toxicity of several isomers and congeners of PCDD and PCDF regulated in F032
may be less, generally, than the one associated with 2,3,7,8- TCDD. However, EPA notes
that the tools to measure the precise toxicty and other health effects posed by PCDD and PCDF
in wastes, oils, and other matrices is currently being scrutinized by EPA as part of the ongoing
debate on EPA's dioxin health risk assessment. No one has suggested or convinced EPA that
the regulated PCDD and PCDF constituents are not toxic. Although EPA believes that
technology, risk, or health based treatment standards can satisfy, generally, the provisions of
3004 (m), EPA does not routinely rely on health or risk based quantifiers or factors to adjust
upward or downward treatment standards promulgated, under the 40 CFR Part 268, or for the
selection of UTS/BDAT constituents regulated by EPA.3 For example, like PCDD/PCDF,
PNA's are other toxic hazardous constituents found in F032 that are also relatively insoluble in
water and thus, presumably less likely to migrate from a Subtitle C hazardous landfill. And
EPA have selected specific constituents within the PNA's for regulation without relying on
toxicity ranking factors for arriving to such list of regulated constituents or to adjust their
treatment limits upward. (See Final BDAT Background Document for Wood Preserving
Wastes). However, under the land disposal restrictions, treatment levels are based on
technologies that substantially reduce the loadings or concentrations of such constituents prior
to disposal. Further; no one is suggesting that EPA is setting, today, treatment standards that
will force the treatment of PCDD and PCDF below levels were the concentrations of these
constituents cease to be hazardous. To the contrary, EPA believes that the treatment standards
promulgated today are within a range of treatment levels that will reduce, generally, short-
and long-term threats to the human health and the environment. EPA is thus promulgating as
3 Nor is EPA precluded from doing so, if EPA determines that, a treatment standard promulgated today is
inappropriate for a contaminated media pursuant to a treatability variance granted under the 40 CFR Part 268.44 (h).
' . "-' '. 1230 " " ' -. '
-------
proposed. ' '..''' ' '' '
Because EPA is setting treatment standards that are based on the performance
of treatment technologies, EPA.does rely, generally, on statistical tools to calculate variability
factors that can be used in setting the final treatment standards. EPA-relies on variability .
factors to account for fluctuations.arising from sampling techniques or for fluctutations arising
from .the normal operation of treatment processes. EPA has determined, however, that the
treatment standards for PCDD and PCDF do not heed'adjustments because EPA believes that
well operated and designed combustion devices can treat, generally; PCDD and PCDF below
. the 1 ppb limits promulgated today for nonwastewater forms of F032. EPA has>settled this
issue in the'promulagtion of the Solvent and Dioxin Rule, the Third Third (F024), and'the
development of UTS limits for PCDD and PCDF in Phase 2.. (See, 51 FR 40615, November
...7, 1986; 55 FR 22580-1, June 1, 1990; 59 FR 47982, September 19, 1994). In addition, EPA
, believes that by promulgating, today, a compliance treatment standard alternative of
combustion, the issue of potential adjustments for PCDD and PCDF in nonwaste-water forms
of F032 becomes mute. This is because under the combustion treatment standard compliance
alternative, combustion residues arising from Part 264 , incinerators, or .from Part 266,'
industrial boiler and furnaces, can be land disposed without the monitoring of PCDD,and
PCDF constituents in F032 derived from residues. '"..'
1231
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DCN PH4P113 /
COMMENTER Chemical Manufacturers Association '
RESPONDER JLABIOSA
SUBJECT WOODS
SUBJNUM 113 - .
COMMENT
B.,EPA should allow concentration-based as well as
technology-based criteria to satisfy BDAT for metals in .
nonwastewater forms of F032, F034, and F035.
In the preamble, EPA indicates that for metal in nonwastewater .
forms of F032, F034, and F030, stabilization is BOAT for chromium
(total), and that vitrification is BDAT for arsenic. Use of the
word "is" and not the phrase standards "... are based on" implies
that the Agency intends to allow only the use of these specific
technologies to treat these constituents to levels below which
these wastes may be land disposed. However, the regulatory
: language in the table at 268.40 indicates that the nonwastewater
standards for arsenic and chromium are numerical standards
CMA has commented in the past that it generally favors
concentration-based treatment standards for BDAT and that it
supports the allowance of technology-based standards as
an alternative to, and not as a replacement for,
concentration-based standards. We maintain this position. Although
the Agency and CMA may not currently be aware of technologies
other than stabilization and vitrification that could be used to
treat for chromium and arsenic in the wastes described above, we
favor the flexibility afforded by a concentration-based standard
which would allow any technology that can meet these levels as an
alternative. CMA requests that the preamble language be modified to
clarify that any technology that can meet the levels indicated in
the table may be used.
In addition, EPA is proposing F032 wastewater and nonwastewater
standards that would require meeting a concentration that does not
exceed 1 ppb (or 1 ug/kg) for all the PCDD and PCDF homologue and
isomer constituents proposed for regulation for F032 wastes. Even
if a 1 ug/kg level is achievable for PCDD and for PCDF, analytical
* limitations may preclude UTS levels this low. .
Normally when EPA sets treatment standards for a waste
.. constituent, a procedure is followed in which both an "accuracy
correction factor" and a "variability factor" are applied to the
concentration of the constituent observed in the treatment data
that supports the standard. See, Final Best Demonstrated Available
Technology (BDAT) Background Document, for Universal Treatment'
1232
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Standards Volume A: Universal Treatment Standards for Wastewater
. ' Forms of Wastes, 52 (July 1994)! The accuracy correction factor is
used to account for analytical limitations in the available ,
treatment performance data, and the .variability .factor is used
. . to correct for variations in waste treatment, sampling, analytical ,
., ' . techniques and procedure's, and other factors that affect .treatment
performance."""'.. . '.'".' . '
'However, we are not_sure if EPA accounted for variability and ; .
, accuracy in setting the universal treatment standards for ;, *
nonwastewater forms;of these organic wastes We urge EPA to do so.
As CMA has previously written in its July 9, 1993 comments on the . '.'
. May 24,1993 Interim filial rule on land disposal restrictions for
ignitable and corrosive characteristic wastes whose treatments. :
; standards were vacated, organic wastestreams are not easily
analyzed for constituents at very low concentrations., CMA .,.'-.
reiterates its previous recommendation that EPA. explicitly states
that, given approved test methods, nondeductible levels of . .
constituents are equivalent to zero concentration and should also ' . '
be applied this the setting of UTS levels. . . -
RESPONSE , .
The comnienter raised four issues and EPA's responses.to such comments ^
follow '.,' ' ' ' . . '' ' v.
'.below: -.-.' ' .." ' ;
1. Clarification that EPA is setting'numerical limits for the regulation of Arsenic
and Chromium (total) in wastewater and nonwastewater forms of E032.
. ,. ~ EPA is clarify ing in today'sTinal rule that EPA is promulgating UTS limits for
the regulation of Arsenic'and Chromium (total) in F032, F034, and F035. Since EPA is '
establishing UTS limits that are expressed as maximum concentrations of .these metals allowed
for land disposal, the use of any treatment technologies capable of meeting the UTS limits is
not prohibited except for those that may constitute impermissible dilution.
2. : "Analytical Difficulties" may preclude the establishment of UTS limits for
F032. ; , ;
i ' [ " ''..,''
EPA's lacks data from the commenter to assess what kind of technical
difficulties will be encountered during the analysis of F032 wastes. - .
After reviewing the characterization data of the Penta Group, the reported
''."' ' ' ' 1233. ' . , ' ' : "''
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analytical difficulties, and F032 Characterization studies; EPA has concluded that the reported.
"difficulties" appear to represent more the unfarniliarity of chemists performing the chemical
analyses .with D/F recommended test methods rather than real flaws in the test method. EPA
believes further that the alleged "difficulties" can easily be overcome by routine laboratory -
clean-up procedures and the use of appropriate solvents and other laboratory calibration
techniques. EPA has enhanced, therefore, the discussion of these recommended procedures
and calibration techniques in the BDAT Background Document. (See also the Administrative
Record supporting today's Phase 4 final rule for the technical document titled: Background"
Paper Addressing Technical Issues Related to Analysis of F032 Wood Preserving Wastes for
Dipxins and Furans, dated June 19, 1996.)
3.
EPA should correct the D/F limits for accuracy and variability.
Several commenters were correct in pointing, it out that EPA did not correct
the proposed UTS limits for D/F in F032 with accuracy and variability factors, as typically
done in the calculation of treatment standards of other hazardous constituents prohibited from
land disposal. EPA did not adjust the proposed UTS limits for D/F constituents, nor is EPA
doing so in today's final rule, as explained below. .
The UTS treatment limits are based on combustion technologies that EPA
believes will meet the proposed UTS limits for D/F in F032 as long as the combustion of F032 '
is conducted in a device that is well designed and well operated. EPA concluded in the
Solvents and Dioxins rule that a six-nines Destruction and Removal Efficiency (DRE) ,
combustion device can routinely, achieve the .promulgated limit (see January 18, 1986, 51 FR
(1733-1735)). Based on the performance of a four-nines DRE rotary kiln incinerator burning
F024, EPA believes that a four-nines DRE unit that is well designed and operated can also
meet the promulgated UTS limits for D/F (see June .1, 1990, 55 FR (22580-22581), Although
none of the submitted comments or data appear to support the revisions to D/F limits proposed
by the commenters, EPA may revisit this issue in a separate rulemaking if new data become
available.
, *
However, EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices if the matrix from CMBST
cannot be analyzed to the treatment level using the proper analytic procedures. EPA refers to
such treatment limits allowances as the analytical detection limit (compliance) alternative.
Facilities seeking the disposal of such combustion ashes must satisfy the provisions in the 40
. .CFR 268.40 (d) (1) through (3) and -268.7 (b) (5) (iii). (Also, see June 1, 1990, 55 FR
(22541-22542).) ' . .''".
v. , ' -
In addition, EPA has set an alternative compliance treatment standard that sets
combustion "CMBST" as a treatment standard for D/F for nonwastewater forms of F032.
. ' M234 .
-------
To qualify for a "CMBST" treatment standard, the combustion device should be operated
under a 40 CFR 264 Subpart O or under a 266 operating permit and the Permit writer
will use his/her Omnibus power authorities to determine if a combustion device seeking to treat
F032 can be deemed well operated and well designed combustion devices. If deemed-a well
operated and designed combustion device, the facility will not have to monitor the
concentrations of D/F constituents in wastewater and npnwastewater forms'arising from the
combustion of'F032. EPA feels therefore that such alternative compliance treatment standard
fully addresses the concerns raised by the commenters. .
4. . Proposal that "nondetection limits" are equivalent to zero detection.
EPA believes the commenteris concern that a detection limit in a treated waste
above a UTS numerical limit may fail to meet the applicable treatment standard even if the
targeted analyte is below the detection limit. EPA believes that a "nondetection limit" is not
feasible way to address this concern,. EPA believes that a constituent shown below a particular
targeted detection limit means that the constituent is either destroyed by the employed
technology, mask in the waste residue due to matrix interferences, or it could be measured in
concentrations below the targeted detection limit. As a result, it could be possible that the
constituent of LDR concern is still above the applicable UTS limit should the targeted selection
limit be above the UTS promulgated limit. Therefore, EPA believes that a facility could still be
deemed in violation of the applicable limit if EPA detects such constituent above its UTS
limit. ' . - . , .' . ; . ' : ."
* , , \
However, EPA points out to the commenter that EPA .generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such
treatment limits allowances as the analytical detection limit (compliance) alternative. Facilities'
seeking the disposal of such combustion ashes must satisfy the provisions in the 40 CFR
268.40 (d) (1) through (3) and 268.7 (b) (5) (iii). (Also, see June 1, 1990, 55 FR (22541-
22542).) Another option available to the commenter is to verify if the waste of concern is
different from the one supporting the UTS limit and seek from EPA a treatability variance
pursuant to provisions in the 40 CFR 268.44. , v .
1235
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1236
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DCN PH4P039 ' ' ...."'"
COMMENTER AWPI -. . '..'. . ' '
RESPONDER JL ..'.'
SUBJECT WOOD9 ' . '.
SUBJNUM 039 ; ' ; - ' . : ' ' .' - ' i.'
COMMENT DIOXIN AND FURAN LIMITS FOR F032 WASTEWATERS ARE ' -
UNACHIEVABLE . - ; " ' . - - -. :
. EPA has proposed treatment standards for. F032 wastewaters'that
were transferred from the UTSs for dioxins and furans in organic
wastewater. These UTSs are based on biological 'treatment of -
wastewaters containing very low Concentrations of dioxins and .
^, furans ranging from 0;00004/ig/L to 0.0118^g/L. The average >" .
concentrations of dioxin and furans in F032 wastewaters are much
: . , higher rangirig'from 0.9 Vg/L to 60 jig/L. COMMENT: Given that the .
removal efficiency for biological treatment of the lesser'.
concentrated was only 78 percent, AWPI does not believe that EPA
can support the clainVthat the UTS can be met with the higher. ^ ;
. . concentrations of dioxins and furans found in F032 wastewaters. "'
RESPONSE' ' ' ''-._ ' * . '.'. ' f . . \
! The coinmentor has asked EPA to withdraw die proposed UTS limits for the
regulation of dioxin and ruran (D/F)'constituents in wasewater forms of F032. -. The
commentqr indicates that the proposed UTS limits cannot be.achieved'since the untreated
concentrations ,of D/F in F032 are much higher than those observed in untreated wastewater .'
supporting the ,UST limits. , .;
1 - -. - . s
. . . Like other commenters, this comentor feels that the limits proposed for D/F in
F032 wastewaters are not achievable. Cpmmenters feel that EPA's own wastewater ' .
characterization data showed that the D/F concentrations in untreated F032 wastewaters were
at significant orders of magnitude greater than the untreated .concentrations in wastewater
supporting the proposed UTS limits. They also emphasized that the performance of biological
treatment units treating D/F constituents achieve up to 78% destruction and thus, it may yield
an effluent with higher concentrations than those proposed by EPA. As a result, the
coinmentor concluded that the proposed treatment standards for D/F in wastewater forms of
F032 cannot be met. , .
* - . ' . "
EPA has examined the available data on the characterization of F032,
prevailing management practices for wastewaters as difficult to treat as F032, and for
wastewaters managed by biological treatment systems. EPA acknowledges that the >
concentrations of D/F in F032 wastewaters, as generated, are much higher than those treated
by the biological treatment system supporting the UTS limits for D/F promulgated today.
Based on the available data, EPA believes that prevailing wastewater treatment practices in the
' : -. ' ' . ' 1237 ' -. .'': " . - '
-------
Wood Preserving industry can be optimized or up graded to meet the'D/F limits proposed for
F032 wastewaters. .
EPA believes that these F032 wastewaters can meet the proposed .limits
because Wood Preserving facilities currently treat these wastewaters via biological treatment
,and the concentrations of Pentachlorophenol(PCP)and D/F in F032 wastewaters "are being
reduced substantially in order to enable the treatment of F032 wastewaters via biological
treatment processes.. In general, the PCP in F032 wastewaters in'Wopd Preserving facilities is
comprised of soluble and nonsoluble PCP loadings or fractions. Generally, soluble PCP
fractions enhance the solubility of D/F constituents in the wastewater. Nonsoluble fractions of
PCP also carry concentrations of D/F and these constituents partition with oils, colloids, and
suspended solids.
Soluble PCP fractions are being treated in biological treatment processes once
appropriate pretreatment units have removed the nonsoluble PCP loadings to the wastewater
treatment system. Also, a reduction in the loading of colloids, metals, total suspended
solids(TSS), oils, and grease to biological treatment processes is necessary, because these .
wastewater contaminants can inhibit the performance of biological treatment processes. These
wastewater inhibiting contaminants are typically treated in physical/chemical trains such as API
sludge tanks which separate oil and grease fractions from the wastewaters, followed by the
treatment of API wastewater effluents in a dissolved air flotation (DAF) which removes
residual oils, residual grease, and colloids, and followed by filtration of DAF wastewaters to
remove TSS and any residual colloids. These wastewaters are then routed to holding tanks
which feed them to biological treatment processes. If biological treatment effluents still yield1
wastewaters with D/F concentrations above the UTS limits, these wastewaters can be treated
by a sequence of three treatment trains:(l)filtration (if necessary), (2) pH adjustment to a
neutral or slightly acidic pH, and (3) activated carbon adsorption. EPA has data on the
performance of these technologies and the available data support promulgation of the proposed
UTS limits. . EPA believes that, generally, activated carbon adsorption (ACA) will allow
facilities to treat wastewater effluents from bioreactors. ACA is widely used for the
remediation of surface waters/groundwaters at wood treater sites. As a result, EPA is
promulgating the UTS limits for D/F in wastewater forms of F032, as proposed. In short,
EPA believes the standards to be achievable through pretreatment to remove interfering agents,
followed .(if necessary) by sequential treatment to achieve the standards. For additional
discussion on EPA's determination, see Final BOAT Background Document for Wood
Preserving Wastes F032, F034, and F035.
Another commentor asked EPA to withdraw its proposal for the regulation of
D/F constituents in F032 wastewaters. The commentor believes that the regulation of PCP and
Polycyclic Aromatic Hydrocarbons (PAHs) can ensure the reduction of D/F in F032
wastewaters. The commentor also submitted data with regard.to concentrations of D/F, PCP,
and PAHs analytes in two. effluent F032 wastewaters treated by activated carbon adsorption.
These data appear to .support the commentor's statement that monitoring of PCP and PAHs
' ' 1238 ' ' . - - ,
-------
may serve-as a surrogate candidates for the reduction of D/F-levels in these particular effluent
wastewaters. However, EPA lacks data to determine if the alternative surrogate constituents
proposed for regulation, can also serve as surrogates for monitoring the, treatment of D/F in
wastewater treatment effluents resulting from other treatment technology trains that may
achieve the proposed UTS. Although EPA is not adopting this proposed alternative treatment
standard for D/F,regulated in F032 wastewaters, EPA points out that treaters of F032 !
wastewaters can address this kind of alternative compliance monitoring scheme in their
.permits' Waste Analysis Plans (WAP). Another option to the monitoring of D/F iri treated
F032 wastewater treatment effluents is the use of expert knowledge to certify that F032
wastewaters meet the applicable UTS limits for D/F or any other regulated constituent in the
waste (see 40 CFR 268.7)'. It should be emphasized,- however, that wether or not regulated
D/F analytes are monitored in a WAP approved by EPA or an authorized State, EPA is not
precluded from enforcing the applicable treatment standards.by characterizing each D/F,
organic, and metal analyte regulated in F032. . .
EPA is promulgating, therefore, . UTS limits for D/F in wastewater-forms of
F032 as proposed. EPA also notes that it expects the wastewater'standards to have little
practical impact. If wastewaters are treated in tanks, LDRs do not apply because there is no
land disposal. If the wastewaters are treated in impoundments, the impoundments will meet
minimum technological requirements and so satisfy the requirements of section 3005 (j) (1 "0.
which'means that .the wastewaters do norhave to be treated before .they are placed in the
impoundment. If the wastewaters are injected, there is ample capacity among Class 1 wells
with approved no migration petitions "to"take .untreated wastewaters. , ,
1239
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1240
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DCN PH4P023 ' . - \ .
COMMENTER .Beazer East, Inc. ' '' " ..-
RESPONDER JL. . r
SUBJECT WOOD10 -,..-
COMMENT During the past several years, it has become apparent that EPA
has begun to rethink its overall approach to the management of
hazardous wastes. With the advent of the corrective action
management unit ("CAMU") rule, EPA has begun to distinguish .
' , between wastes (generated during remediation of sites
. ("remediatioh.waste") and production wastes generated by- ,
, on-going manufacturing facilities ("as-generated wastes").
Recognizing the vast 'difference between remediation wastes and
as-generated wastes, initial efforts are now underway by'EPA to
develop independent regulatory programs for these wastes. For
example, the Agency is currently drafting a proposed Hazardous .
Waste Identification Rule ("HWIR") designed to more \
, , . realistically characterize and manage media impacted by
i hazardous waste. In addition, after five years .in limbo, EPA has
announced that an Advance Notice of Proposed Rulemaking on.
Subpart S regulations will be published in early 1996. Early
reports indicate that the Subpart S regulations will further
advance EPA's goal of providing flexibility and incentive to the
; . regulated community conducting remedial activities at Resource
Conservation and Recovery Act ("RCRA") and.Comprehensive
.; Environmental Response, Compensation and Liability Act
("CERCLA") sites. Beazer believes that these EPA initiatives
may and should provide much-needed flexibility to the regulated
community managing remediation waste without adverse impact to
human health or the environment. This worthy EPA goal, however,
will not come to fruition for the management of wood treating
site remediation wastes if EPA promulgates the proposed LDRs for
- ' Hazardous Waste Nos. F032, F034 and F035 as drafted. In short,
' a strict application of this proposal will bring remediation of
wood treating sites to a standstill. Parties conducting these .
remediations, such as Beazer, will be, left with no workable ;
option for implementing the remediations required by state and
, federal administrative orders and decrees. The proposed LDRs _
for wood treating wastes will thwart the progress made to date
for several reasons. As discussed in greater detail below, the
Agency's proposed,LDR for dioxin/furan congeners (hereinafter
- referred to as "dioxin/niran") as constituents of F032 LDR lacks
scientific justification and will create insurmountable disposal
problems. For example, EPA has determined that its proposed one
*
-------
part per billion ("ppb") concentration limit for dioxin/furan
can be achieved by incineration, without considering the
consequence of only one incinerator being licensed in the United
States to accept such waste. Furthermore, EPA has
intentionally, through its Draft Combustion Strategy For - '
-Combustion of Hazardous Waste, May 1993 ("Combustion Strategy"),
created significant impediments to the issuance of new permits
for additional hazardous waste incinerators. Moreover, as.
Beazer has consistently maintained in its previous comments, the
public simply refuses to tolerate the.risks of new incineration,
particularly with respect to the more controversial substances,
such as PCBs or dioxins. Under these,circumstances, any thought
of obtaining a new permit for an incinerator which would be used
to incinerate dioxin/furan is unfathomable. Application of these
LDRs will result in an EPA-created monopoly of the dioxin/furan
incineration business. Because, the costs of incinerating
dioxin/furan-containing wastes are already beyond the reach of
the regulated community for any significant amount of material,
the proposed LDR for F032 will likely: (1) serve as disincentive
, to the regulated community to commence remediation voluntarily
of media containing F032; (2) result in disruption, delay or
total cessation of activities at remediation sites; and/or (3)
create financial demands that will be impossible to meet for
those regulated entities which are required by either a state or
federal authority to excavate F032 medial Beazer believes that
by requiring incineration for dioxin/furan, but only permitting
one incinerator to treat dioxih/ftiran, EPA is placing the
regulated community in an impossible situation. EPA's approach'
would result in F032-impacted remediation waste being caught in .
the Catch-22 position of not being treatable at the site due to
LDRs while at the same time not being accepted for >-
treatment/disposal by any outside commercial entity except the
lone permitted incinerator, whose cost and capacity restraints
will essentially rule out its use. Beazer believes that a .
number of alternatives to incineration can be employed at wood
treating sites that are protective of human health and the
environment. Another ramification of EPA's proposed LDRs
involves the extremely low wastewater treatment standards for
wood treating wastes. EPA's stringent wastewater.treatment
requirements (e.g., dioxin/furan levels of 0.00063 mg/1) will
have a profound impact on the management of remediation of
groundwater at sites. According to the regulation, the regulated
community will be forced to expend valuable resources to design
'. . "
1242
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- and construct wastewater treatment facilities capable of meeting
' these low limits for any wastewaters generated at sites.where
pentachlorophenol ("penta") was used. Again, these requirements
will result in a.shutdown of remedial actions at these sites. A
third critical impact of promulgating such stringent LDRs is
that EPA will effectively exclude all innovative technologies
from consideration at such remedial sites. Such action is in
direct contravention of RCRA and CERCLA, 42 U.S.C. § 6902(a)(9)
and 42 U.S.C. § 9621, and will require expenditures at sites >
that are wholly disproportionate to the environmental benefit. .
Moreover, the exclusion of non-incineration alternative
technologies to treat impacted wood preserving remediation waste
to LDR,standards will result in bringing the remediation process
to an abrupt halt. As such, EPA's proposed LDRs for F032 are
.'arbitrary, capricious and an abuse of discretion. For these
reasons and others discussed in these comments, Beazer 'believes
that the Agency must give careful consideration to the necessary
integration of the proposed LDRs (designed to protect the land .
from dumping of primarily untreated as-generated wastes) into
" RCRA and CERCLA "s critical cleanup programs (designed to
remediate the land to acceptable conditions). Rather than
depart from its emerging policy to promote and facilitate
remediation, the Agency must clearly state in the final rule
that the LDRs apply to as-generated wastes only (in keeping with
its position that as-generated wastes and remediation wastes .
differ significantly) and that the management of remediation' i < .
. waste (including the application of LDRs) will be governed
exclusively by the HWIR upon promulgation, as modified by 'the
new Subpart S rule. By excluding remediation wastes from the .
current LDR rulemaking, EPA will continue to facilitate
,, remediation activities. Moreover, no adverse environmental
effects would be expected as a result of this exclusion because .
' the risks associated with management of these materials will be
. addressed on a site-specific basis. By utilizing a risk-based
' approach for remediation waste management (as we understand will
be proposed in the HWIR,and Subpart S rules), non-incineration
technologies will likely be available to the regulated community
for treating remediation waste at wood .preserving sites, and,
where adequately protective of human health and the environment,
these remediation-generated materials can remain on-site and be
managed accordingly. Should EPA fail to exclude remediation
waste from the instant rulemaking, then EPA must, as a matter of
course and without imposing protracted regulatory hurdles, allow
, ;- , : . .V 1243 : ' "-' '
-------
the use of CAMUs at all wood treating sites managing remediation
wastes after the proposed capacity variance terminates and until
the HWIR rule's impact on remediation is manifested. Otherwise,:
1 entities will be forced to undergo the exhaustive variance
petition process for exclusion from the LDR-regime-, a process
which is not only difficult to navigate successfully but will '.
result in the unnecessary commitment of the Agency's and the
regulated community's time and money. This comment package .
addresses the technical and legal shortcomings of the proposed
LDRs for wood treating wastes, including its associated.
analytical problems, questionable science and capacity .'''".
shortfalls and the impact of this Proposed Rule oh future
rulemakings. For organizational purppses, the technical and
practical shortcomings of the Proposed Rule are discussed in, - ;
. Section II and, based upon a.number of the points discussed in -
Section II, the more global aspects of the proposed LDRs and how
they will affect site cleanups are addressed hi Section Ifl,
Beazer requests that EPA give its full consideration to these :
comments. EPA's failure to incorporate the recommendations
discussed in these comments amounts to arbitrary Agency action,
which is in violation of and reviewable under RCRA and the .
Administrative Procedure Act, 5 U.S.C. § 706.
RESPONSE . .
The commenter is concerned with the potential impact the proposed treatment
limits for the regulation of PCDD and PCDF constituents in wastewater and nonwastewater
forms of F032 can have on remedial-activities taking place at wood preserving sites. The
commenter has raised various arguments that the commenter believes should persuade EPA to
withdraw the proposed regulation of PCDD and PCDF in F032 or that may persuade EPA to
delay applying the proposed limit to contaminated media at wood preserving sites. The
commenter believes that the proposed treatment limits for regulating PCDD and PCDF in
nonwastewater and wastewater forms of F032 will be unachievable and will discourage the
excavation of soils/debris/sediments or the pump and treat of surface-water, leachate, and
groundwater. ~ ".'. . .
'" "- ' N-
» EPA acknowledges the commenter concerns and agrees that the promulgated
limits can impact ongoing remediation activities at wood preserving sites and that compliance
with the treatment limits promulgated today can potentially shift the focus of remedial activities
away from ex-situ to in-situ or to plose in place (e.g. capping ) remedies. EPA also agrees
that there might be instances were the promulgated treatment limits may be determined by EPA
to be "inappropriate" or "unachievable" by some contaminated media at wood preserving
sites. And EPA may do so, on a case-by-case basis pursuant to EPA's authorities under
, ' '
- . ' . 1244 ' ' - ' : -
-------
CERCLA and'RCRA. However, it would be illegal for EPA to delay or withdraw the .
regulation of-hazardous'media contaminated with F032 because F032 is a newly listed waste
prohibited from land disposal. In addition, EPA is not persuaded that the concentrations of .
PCDD and PCDF in F032 or in contaminated media with F032 do not warrant regulation
under the LDRs.' (See Final BOAT Background Document for Wood Preserving Wastes
(F032, F034, and F035) for EPA's rationale for-regulating F032 in hazardous wastes and
contaminated media, and response to comments under Wood 4 issues.)
* . > , ' . <' ' - . - ' i
Based on the review of wastewater management practices available at the wood
preserving industry and on data describing treatment the performance of technologies that can
facilitate the ex-situ remediation of contaminated media, at .wood preserving sites; .EPA
believes.that these treatment limits are feasible and that, they also shall apply, ta contaminated
media.' EPA also believes that two or more technology trains may .be necessary to. meet the
treatment limits promulgated today. . First, wood sites contaminated with PCP has relied on-
cdmbustion technologies to destroy PCP, PCDD, PCDF, and other organic contaminants,
generally, for the destruction of "hot spots". The treatment of contaminated groundwater or
surface water via physical/chemical-(P/C) treatment followed by biological treatment or :
followed by carbon adsorption are also being practiced; extensively, by the wood preserving
industry, and in the remediation of groundwater and surface waters at wood preserving sites.
For instance, treatment trains are used at remedial sites to collect Non-Aqueous Phase Liquids
and to concentrate, recycle, or subsequently destroy the;concentration of PCP oils which also
may show significant concentrations of PCDD and PCDF constituents. Wastewaters from ;
these P/C process may undergo biological treatment or just undergo carbon adsorption prior to
an outfall discharge under a National Point Discharge Elimination System permit or to an
onsite re-injection to the groundwater. In addition, EPA disagrees with the commenter that
the treatment limits set today for PCDD and PCDF in wastewater forms of F032 are so
"stringent" that extensive wastewater treatment processes will have to be installed to meet the
treatment limits promulgated today. This is because EPA believes that properly pretreated :
wastewaters (e.g. removal of PCP oils and colloids via API sludge removers followed by
dissolved air flotation ) followed by activated carbon^ adsorption (ACA) can meet the -
promulgated treatment limits >. Activated carbon adsorption is a technology routinely used to ,
remove the concentrations of hydrophobic constituents such as PCDD and PCDF from /
groundwaters, surface waters, and industrial wastewaters and AC A is routinely used for such
purposes at wood preserving sites. Based on data describing the performance of these .
technologies, EPA believes that combustion (soils/debris), and P/C treatment followed by
activated carbon adsorption (wastewaters, groundwater, and surface waters) can be optimized
to meet the treatment limits promulgated today. . ^
- - .. . -' " ' / :
Also, EPA believes that 268.44 (h) can readily>allow the commenter to meet .
alternative treatment limits when a particular treatment technology train is unable to treat
contaminated soils, debris, or media to the treatment limits promulgated today or for media
which EPA determines the treatment limits are inappropriate. (See Final BOAT Background -
Document for Wood Preserving Wastes and appropriate EPA guidance cited in the Final
' , . ' '. : ' ' . 1245 . ' " ' -
-------
BDAT Background document. ) EPA also disagrees'that the pursuance of treatment . .
alternatives under 268.44{h) may be an undoable burden to the industry. First, some
members of the regulated community, remedial vendors, and presumably the commenter itself,
has already gained experience with the procedures for' soliciting from the EPA Regional
Administrator treatability variances. This is'because the industry has already, dealt with other
remedial wastes contaminated with wood preserving wastes already prohibited form land
disposal, e. g. K001 and characteristic wastes! Also, EPA believes that the treatability
variance process can be readily incorporated; as it is normally-done for other wastes prohibited
from land disposal, into the scope of feasibility studies conducted under CERCLA or RCRA.
In fact, feasibility studies are often an integral part in scoping out the alternative treatment .
limits to be achieved under 268.44 (h). (See, generally, LDR Guidance 6A and 6 B, and the
Final BDAT Background Document for Wood Preserving Wastes (F032, F034, and F035)).
EPA believes, therefore, that the marginal cbst for pursuing a treatability variance, generally,
can be minimized. . . -
, Finally, the commenter believes that in order to lessen the regulatory burden
that LDRs may impose at wood preserving sites, the EPA should grant CAMUs to all wood .
preserving sites managing remediation wastes without delay, once the National Capacity
Variance has expired. EPA believes that although a CAMU can be one of several options
available to wood preserving sites, such an option can only be made available, on a site
specific basis and in accordance with the applicable regulations under the 40 CFR 264 Part S.
Although EPA expects, however,, the HWIR media and generated waste proposal to put to rest
most of the issues raised by the commenters, EPA believes that the interim guidance for
granting treatability variances under 268.44 (h) can address and minimized must of the
concerns raised by Beazer. (See, for example, memorandum titled: Use of Site-Specific Land
Disposal Restriction Treatability Variances Under 40 CFR 268.44fh) During Cleanups, from
Michael Shapiro, Director , Office of Solid Waste and Steve Luftig, Director, Office of
Emergency and Remedial Response, to RCRA/CERCLA Senior Policy Mangers, Region I-X,
dated January 8, 1997.)
1246
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DCN PH4P023 . "... , ' ' '. . '
GOMMENTER Beazer East, Inc. ' ' . ' - ,
RESPONDERJL .
SUBJECT 'WOOD 10 ' * ' .-..'. ,
COMMENT III. FUTURE RULEMAKINGS AND POLICY FORMATION
AFFECTING , ' REMEDIATION MUST BE CONSISTENT AND PRACTICAL.
A. The Proposed . - ' '<
LDRs for Wood Treating Wastes as Drafted Will Negatively Impact
the HWIR For Media. 1. The proposed LDRs will limit the HWIR .
treatment alternatives; The proposed HWIR for media is part of
the Clinton.Administration Regulatory Reform Initiative,to - . ;
' exempt certain impacted media from-regulation as hazardous waste ,
and to establish media-specific treatment standards for those .. .
impacted media which are not exempted from regulation. By
establishing a management program for impacted media outside
Subtitle C, EPA is acknowledging the fundamental difference ,
between process waste and remediation waste. EPA is expected to
establish "Bright Line" concentrations of hazardous waste
constituents in media. Media with constituent levels below the
"Bright Line" will no longer be considered to "contain"
hazardous waste. Media which contain hazardous waste.
constituents above the "Bright Line" will require treatment
prior to land disposal. EPA has indicated that these treatment
v standards will include various options such as (1) treatment to
10% of the original constituent concentration, (2) use of
. ' certain qualified innovative technologies, and (3) treatment to
ten times the EPA UTS for the regulated constituents. As ' :
. discussed above, the Agency's proposed LDR for F032.will make
. the third option cost prohibitive because the dioxin/furan LDRs,
as proposed, are so stringent that the regulated community will , " .
be provided little relief even if the LDRs are multiplied by a
factor of 10. Witii regard to the second option (the use of . »
innovative technologies), EPA's recognized alternatives , -
described in the Proposed Rule are not implementable in the
field for F032. Also, development of such technologies will be ..
unlikely given die lack of development and permitting unless EPA .
, accepts the results of the innovative technology in advance of
full scale pilot studies and does not require further treatment.
Thus, the treatment options expected to be set forth hi the . .
final HWIR may realistically be limited to only one when applied
to wood treating sites where penta was used: reduction of the
original constituent concentration by 90%. This option may also
be cost prohib'itive for media impacted by F032. Therefore, if
-.. - ' ' ' ' 1247' ' ' ' - ' . , '
-------
EPA sets the LDRs for dioxin/furan as proposed, no options will
exist for treatment .of penta wastes other than incineration.. At .
a- remediation sjte, this means that media cannot be disturbed
without violating LDRs. Thus, remediations will simply stop and
will be replaced with all the subsequent legal wrangling
necessary for protection of the parties from civil and
stipulated penalties and drawn out battles over the meaning of
-force majeure clauses and other impossibility defenses. To th£
extent that media is already disturbed or the Agency insists on
requiring media management, the only practical solution may be
to place the impacted media in an on-site unit that meets RCRA
minimum technology requirements. After placing the regulated
community in this Catch-22 situation, EPA should not be heard
later to criticize or challenge the regulated community's
inability to meet LDRs. Timing may play a critical role in the ,
inter-relationship of the HWIR and the LDRs for wood preserving
wastes. The >LDRs for wood preserving wastes are expected to be
promulgated far in advance of the HWIR rulemaking. As such,
these "process waste" LDRs will apply, to remediation wastes.
Although EPA is considering a national capacity variance for a
period of two years in the Proposed Rule (which Beazer wholly
supports), it is impossible to predict how long it will take EPA
to promulgate the HWIR rulemaking, especially considering that
the Subpart S rule, was first proposed in 1990 and is not
expected to.be even re-proposed until 1996. Even assuming that
EPA would appropriately draw a "Bright Line" that does not
characterize media as a Subtitle C hazardous waste, compliance
with the LDRs during the interim period will result in
unnecessary expense and delay. As stated in the Proposed Rule:
for some of the wastes at issue in this rule it may not be
feasible to ship wastes off site to a commercial facility. In
particular, facilities with large volumes of wastewaters may not
readily be able to transport their waste to treatment,
facilities. Alternative treatment for these wastes may need to
be constructed on site. 60 Fed. Reg. 43685, footnote 4, The
example of groundwater further underscores the point. There are
not enough resources anywhere to extract groundwater for
off-site treatment to LDRs. And, the time and costs associated
with permitting and construction of individual treatment
facilities to meet the impossibly low UTSs for groundwater have
not been even considered by EPA. These additional expenses must
be addressed under the Regulatory Impact Analysis to give the .
regulated community a fair idea of the true costs of this
' " -1248
-------
action. RECOMMENDATION: . . , '' '
-\' ' ' ' / ' . .
RESPONSE' . ,, . . ' . '. ; ,' :
, EPA agrees with the cdmmenter that the proposed treatment standards can
have a chilling effect on ongoing remedial activities under RCRA, bffsite remedial activities
under CERCLA, and new or modified onsite Record of decisions under CERCLA. EPA
agrees, funher, that in many instances, the cost to comply with such treatment standards may
be prohibited. EPA emphasizes, however, that HSWA prohibits EPA from taking'into account
cost considerations when setting treatment standards that implement RCRA 3004(m)
provisions. EPA points out, however, that although HWIR media and HWIR regulatory
efforts are still on the horizon and such regulatory frame works are more appropriate,
generally, for.remedial activities; EPA cannot adopt the commenter's proposed option that,
media contaminated with wo6d preserving wastes are exempted from the LDRs. EPA's <
promulgation of such suggested option will be illegal since F032, F034, and F035 are newly
listed wastes and EPA is mandated by HSWA to ban all and newly listed RCRA hazardous
" wastes from land disposal practices. As a result, treatment standards are needed to implement
such restrictions.. (See HSWA Section 3004(m) and 3004 (g)(4); Chemical Waste Management'
JL^EM,869F.2d,'D.C, Cir. 1989) . ''... ,
EPA also points out that the promulgated treatment limits may be determined
by EPA to be "inappropriate" or "unachievable" by some contaminated media at.wood
preserving sites. -And EPA may do so, on case-by-case basis pursuant to EPA's authorities
. under CERCLA and RCRA. ,EPA believes that although HWIR media and HWIR waste will
put most of the commenter concerns to rest, EPA believes that in the interim the RCRA
regulatory option under , . , '
the 40 CFR 268.44 (h) can address the commenters concerns. EPA notes that EPA's
constructs of ,300(m) allows EPA to set technology or risk based treatment standards and in
today's final rule, EPA has selected a technology based approach. EPA points out, further,
that such interpretation also has been extended to variances granted under the 40 CFR
268.44(h). (See memorandum titled: Use of Site-Specific Land Disposal Restriction .
Treatafaility Variances Under 40 CFR 268.44flri During Cleanups, from Michael Shapiro,
Director , Office of Solid Waste and Steve Luftig, Director* Office of Emergency and
Remedial Response, to RCRA/CERCLA Senior Policy Mangers, Region I-X, dated January 8,
,1997.) EPA has discussed other potential waivers or variances from the treatment standards
promulgated today in the Final BDAT Background Document for Wood Preserving Wastes
(FQ32, F034, and F035). , ; .
' 1249
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DCN PH4P023 ' x - .
COMMENTER Beazer East, Inc. ': . \
RESPONDER JL '
SUBJECT WOOD 10 ' .
COMMENT .-, B. . The Proposed LDRs Are Contrary .to EPA's Goals for
Corrective Action.,On July 27, 1990 (55 Fed. Reg. 30798), EPA
proposed regulations governing corrective action implementation.
Of these proposed regulations, only the sections addressing
CAMUs and temporary units were finalized. 58 Fed. Reg. 8658
- (February 16, 1993). The remainder of the 1990 proposal,
.however, has been used routinely by states and EPA regions as.,
guidance as these entities implement corrective action programs.
Under the corrective action program, the facility owner/operator
is responsible for conducting the remedial activities. EPA has
informally indicated that it believes that there has been
general reluctance on the part of facility owners and operators
.to undertake voluntary actions at RCRA sites. As a result, EPA
is looking for opportunities to create incentives to the use of
voluntary activity. As part of its reproposed Subpart S
rulemaking, it is expected that EPA will introduce several -
mechanisms to increase flexibility under the corrective action
process under RCRA. The HWIR-media rale discussed above is
considered to be complimentary to EPA's corrective-action >
program because it provides state and EPA regions with a
mechanism to tailor requirements for management of contaminated
media to the risk posed by any given media and the circumstances
at any given corrective action site. However, the HWIR rule is
also expected to rescind the CAMU rulemaking. Without the
availability of CAMUs, the LDRs will play a dominant role in the
management of remediation wastes. Unless EPA excludes
remediation wastes from the wood preserving waste LDRs, the
regulated community will refrain from voluntary cleanup
activities. Moreover, the available remedial alternatives will
be drastically decreased. Decisions regarding corrective action ,
at wood treating sites.will be made based on whether the
remediation wastes can be disposed of in accordance with the
\ LDRs in a manner that is not cost prohibitive. As discussed in
the 1990 Subpart S proposal, the Agency believes thatmany
potential remedies will meet the threshold criteria proposed for
corrective measures selection and in such a situation, cost is .
an important consideration in choosing the remedy which most
appropriately addresses the circumstances at the facility, and
which uses the resources of the facility owner and operator most
" : ' 1250 ' '
-------
' ' ~ 'efficiently.- 55 Fed. Reg. 30798,. 30825,. Col. 1, (July 27,
1990). Under such a scenario, corrective measures at sites- -
.where;penta was used will be driven by cost. As stated above,
due to the exorbitant cost of incinerating dioxin/furan wastes .
and the lack of alternative technologies, either cleanups wiii . " \
, \ cease or hot be undertaken voluntarily. RECOMMENDATION:
RESPONSE l . . ' : - . .
.'.-"' --N1 '
EPA agrees with the commenter that the proposed treatment standards can ' '
have a chilling effect oh ongoing remedial activities under RCRA, offsite remedial activities.
under CERCLA, and new or modified onsite Record of Decisions under-CERCLA.r EPA
agrees, further, that in many instances, the cost to comply with such treatment standards may
be prohibited. EPA. emphasizes! however, that HSWA prohibits EPA from taking into account
cost considerations when setting treatment standards that implement RCRA 36p4(m) , .
provisions. . EPA points out, however, that although HWIR media and HWIR regulatory
efforts are still oh the horizon and such regulatory frame works are more appropriate,
generally, for remedial activities; EPA cannot adopt the commenter's proposed option that
media contaminated with wood preserving, wastes are exempted from the LDRs. EPA's
promulgation of such suggested option vvill be illegal since F032, F034, and F035 .are newly
listed wastes and EPA is mandated by HSWA to ban all and newly listed RCRA hazardous
wastes from land disposal practices. As a result, treatment standards are needed to, implement
such restrictions: (See HSWA Section 3004(m) and 3004 (gX4>: Chemical Waste Management
, 869 F.2d,D.C. Cir. 1989)
; EPA points out that .the promulgated treatment limits may be determined.by
EPA to be inappropriate or unachievable by some contaminated media at wood preserving :,
sites. And EPA may do so, on case-by-case basis pursuant to EPA's authorities under
CERCLA and RCRA. (See Citgo determination, 61 FR 55718, October 28, 1996.) EPA
believes that although HWIR media and HWIR waste will put most of the commenter concerns
to rest, EPA Relieves -that in the interim- the RCRA regulatory option under the 40 CFR
268.44 (h) can address the commenters concerns. EPA notes that EPA's constructs of 300(m)
allows EPA to set technology or risk based treatment standards and in today's final rule, EPA
has selected a technology based approach. EPA points out, further, that such interpretation
also has been extended to variances granted under the 40 CFR 268.4401). (See memorandum
titled: Use of Site-Specific Land Disposal Restriction Treatability Variances Under 40 CFR
26%.44(h) During Cleanups, from Michael Shapiro, Director , Office of Solid Waste and
Steve Luftig, Director, Office of Emergency and Remedial Response, to RCRA/CERCLA
Senior Policy Mangers, Region I-X, dated January 8, 1997.) EPA has discussed other
potential waivers or variances from the treatment standards promulgated today in the Final
BDAT Background Document for Wood Preserving Wastes (F032, F034; and F035). .
1251
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DCN PH4P023 " . ' ; - .
COMMENTER Beazer East, Inc.
RESPONDER JL
SUBJECT WOOD 10 -
COMMENT C, EPA's Selection of Incineration as BOAT for F032 Is .
Contrary to Its Presumptive Remedy for Wood Treating Sites.
Several years ago, the Superfund program began the' "presumptive
remedy" initiative to streamline site investigations and
facilitate'the'selection of remedies by utilizing past
experience at similar"sites. Presumptive remedies are preferred
technologies for common categories of sites, based on historical
patterns of remedy selection and EPA scientific and engineering
evaluation of performance data on technology implementation.
See, Presumptive Remedies: Policy and Procedures, EPA
'540-F-93-047, September 1993. EPA believes that once - .
presumptive remedies are selected, they are to be used at all
appropriate sites, including RCRA sites. Id. The Agency is
.currently in the process of drafting a presumptive remedy for
wood treating sites. This presumptive remedy will incorporate
EPA's Technology Selection Guide for Wood Treater Sites, EPA
540-F-93-020, May 1993. Beazer has provided comments and has
met with EPA regarding the presumptive remedy for wood treating
- sites and expects the presumptive remedy to include
bioremediation, incineration for limited hot spot areas, and
stabilization for metals. The Agency's proposed LDRs for wood
treating wastes are inconsistent with these presumptive
remedies. Ex-situ biotreatment of wood treating wastes will be
eliminated by virtue of the proposed LDR regulations because any
F032 remediation wastes which are excavated will require
incineration to meet the 1 ppb standard for dioxin/furan. The
proposed LDR for F035 is also inconsistent with the Technology
Selection Guide for Wood Treater Sites which calls for
stabilization of CCA, not vitrification. RECOMMENDATION;: EPA
cannot continue to promulgate conflicting regulatory programs
that apply to the same groups of remediation wastes. Nor can.
EPA continue to promulgate regulations that are intended to
, » apply to only process waste and yet not clearly exclude
remediation wastes from their jurisdiction. The Agency is under
a statutory mandate to provide the regulated community with
consistent regulatory programs. Beazer believes that EPA should
ensure that the proposed LDRs meet that mandate. IV.
. ,CONCLUSION In conclusion, Beazer requests that the Agency give
full consideration to the foregoing comments. We are prepared
. . ' 1252' . .''.'
-------
to discuss any of these issues further 'with you upon request. .
'-.."' r ' ' . -. ' ' " ,
RESPONSE '/ . '' , ''"'. V '',.'
' -. . EPA agrees with the cpmmenter that the proposed treatment standards can
have a chilling effect on ongoing remedialactivities under RCRA. offsite remedial activities
.under CERCLA, and new or modified onsite Record of Decisions under CERGLA. . EPA
agrees, further, that in many instances, -the cpst to comply with such treatment standards may '
be prohibited. EPA emphasizes, however, that HSWA prohibits EPA from taking into account
cost considerations when setting treatment standards that implement RCRA 3004(m)
provisions1. EPA points out, however, that although HWIR media and HWIR regulatory
efforts are still on the horizon and such regulatory frame works are more^appropriate,
generally, for remedial activities; EPA cannot adopt the commenter'.s proposed option that
media contaminated with wood preserving wastes are exempted from the LDRs. EPA's
promulgation of such suggested option will be illegal since F032, F034,.and F035 are newly ;
listed wastes' and EPA is mandated by HSWA to ban all and newly listed RGRA hazardous
wastes from land disposal practices. As a result, treatment standards are needed to implement
such restrictions. .(See HSWA Section 3004(m), and 3004 (g)(4); Chemical Waste Management
869. F. 2d, D.C. Cir. 1989.) :'.;.
EPA is not persuaded, by the commenters arguments that the concentrations of
PCDD and PCDF in F032 or in remedial soils/groundwaters do riot warrant treatment
standards under the LDRs. EPA has. determines that these constituents are toxic and
hazardous and that they are also carcinogenic constituents in F032 warranting treatment
standards under the LDRs. EPA's rationale for setting treatment standards for these
constituents can be found in the Final BDAT Background Document for. Wood Preserving
Wastes (F032, F034, and F035) and in other portions of this Response to Comments
document, and thus it is not repeated here. _ N
EPA also points out that the promulgated treatment limits' may be determined
by EPA to be "inappropriate" or "unachievable" by some contaminated media at wood
preserving sites. And EPA may dp so, on case-by-case basis pursuant to EPA's authorities
under CERCLA and RCRA. EPA believes that although HWIR media arid HWIR waste wi|l
put most of the cbmmeriter concerns to rest, EPA believes that in the interim the RCRA
regulatory option under .
the 40 CFR 268.44 (h) can address the commenters concerns. EPA notes that EPA's
; constructs of 300(m) allows EPA to set technology or risk based treatment standards and in .
today's final rule, EPA has selected a technology based approach. EPA points out, further,
that such interpretation also has been extended to variances granted under the 40 CFR.
268.44(h). (See memorandum titled: Use of Site-Specific Land Disposal Restriction
Treatability Variances Under 40 CFR 268.44fh> During Cleanups, from Michael Shapiro,
Director , Office of Solid Waste and Steve Luftig, Director, Office of Emergency and
Remedial Response, to RCRA/CERCLA Senior Policy Mangers, Region I-X, dated January 8,
.' ' ' - ''' .' '1253 . ' " . -. ' ^ ' .
-------
1997 ) EPA has discussed other potential waivers or variances from the treatment standards
promulgated "today in the Final BDAX Background Document for Wood Preserving Wastes
.(F032, F034, and F035). .
1254
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DCN - PH4P027 .. "' .. ,. . '';-...
COMMENTER Rollins Environmental ' , - " , ,; .
RESPONDER JLABIOSA '
SUBJECT' WOODII ' , ' ' . '. -
SUBJNUM 027 ' ' . . ' / . ' ' ' - '' .'''
COMMENT ' "' " " :.' --'.', '-'..
- ' Cornrrienters were also concerned that including Dioxin/Furans in the '
treatment standard for F032 wastes will reduce commercially
available treatment capacity for these wastes.. RES is , ' .
confident this concern is unfounded. As the largest supplier of . . ,,
commercial incineration services.in the U.S. we are confident there
is ample commercial treatment capacity available to treat F032 . .
, , wastes.. ; , . ' , ' (
' RESPONSE ' . > '. , ' .
' ' » . \
EPA is promulgating treatment standards that .set numerical limits for the
' regulation of Dioxin and Furan (D/F) hazardous constituents -hi F032. In response to
comments from .the Penta Task Force and. the American Wood Preserving Institute, the EPA
has also proposed and is promulgating in today's rule an alternative compliance treatment '
standard that sets combustion ("CMBST") as a treatment method for D/F constituents in
F032.' ' . . ' " ' ,; ' ,.'.;""''' : -. . "'
» ' '../.,.
EPA has promulgated, however, a revised ."CMBST" compliance alternative
. which limits the availability of the "C/MBST" to those combustion devices subject to the
combustion standards in the 40 CFR 264 Subpart 0, or 40 CFR 266, Subpart H. As proposed,
EPA is amending the existing "CMBST," compliance treatment alternative for F024 and >
promulgating instead, the same ^"CMBST" treatment alternative finalized for F032 in today's
rule. EPA notes that F032 combusted in incinerators, operated in compliance with the 40 CFR
265 Subpart 0 do not qualify for these alternative "CMBST" treatment alternative unless the
facility, can demonstrate that the combustion efficiency of the Part 265 incinerator is similar to
or better than those under Part 264 (incinerators) or Part 266 (BIFs). EPA will use 40 CFR
268.42(b) to examine and determine how equivalent Part 265 incinerators are to Part 264
incinerators or Part 266 BIFs. (See Final BDAT Background Document for Wood Preserving
.Wastes F032, F034, and F035, April 16, 1997, and the preamble for a discussion of such
determination of equivalent treatment pursuant to 268.42(b).). As a result; facilities or
generators who elect to combust F032 and F024 in:40 CFR 265 incinerators must monitor the
levels of D/F constituents in the treated residues or rely on expert knowledge as a prerequisite
to land disposal. , -" / , ''v> ' .'
The commenter has stated that there is sufficient treatment capacity to treat
F032 wastes. ' . . . ',,.';
EPA agrees with the comment, except hi the cases of F032 contaminated soil and debris, and .
-------
\ , '
mixed wood preserving and radioactive wastes. As detailed in todays preamble, EPA believes
there is sufficient capacity for both wood preserving wastewater and nonwastewater hazardous
wastes. However, given the lack of available capactiy and other issues associated with soil and
debris contaminated with F032, FQ34, and F035 wood preserving wastes. EPA is granting a"
two-year variance for these wastes. 'In addition. EPA has determined that sufficient alternative
. treatment capacity is not available for radioactive wastes mixed with wood preserving wastes,'
1 and is granting a two-year national capactiy variance. ,
EPA notes that in 1989, the Agency found difficulty in locating facilities to
receive F024 wastes until the treatment standard was amended to include a CMBST alternative.
Under the same line of reasoning, the Agency believes that by including the CMBST
alternative for F032 wastes, generators will have.more flexibility in their choice of treatment
facilities. The Agency also believes that by promulgating the CMBST alternative for F032
, wastes, constituents of concern will continue to be fully treated, and therefore the standards
does not compromise the Agency's commitment to protection of human health and the
environment. . : . ..
1256
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f,
DON' '.'.' PH4P032 . ,
COMMENTER Penta Task Force . - . '
-RESPONDER JLABIOSA ,
SUBJECT WOOD11 ,
'SUBJNUM\ 032 -'.,,":''..'
COMMENT . ' '
I. EPA SHOULD NOT ESTABLISH A CONCENTRATION STANDARD
/FOR DIOXIN AND FURAN CONSTITUENTS OF F032 WASTES.
A. The Stigma Associated With Dioxin-Containing Wastes Will Cause
Incineration Facilities to Refuse To Accent F032 Wastes.
' In prior rulemakings, EPA has recognized that the stigma
associated with wastes that must be treated to meet specific dioxin
anJ-furan limits leads to severe capacity shortfalls. See, e.g., 55
Fed.Reg. 22,520, 22,580XJune 1, 1990) (F024 waste)/Indeed, in
. the F024 mlemaking, the Agency found it necessary to revise the
standard to delete the dioxin/furan limits and to offer
incineration as an .alternative technology in order to prod the
treatment industry into accepting the wastes. 55 Fed. Reg. at
22,581. As EPA acknowledged in the context of that ruiemaking: \ .
[T]he Agency is revising the treatment standards promulgated on
June 23, 1989 to specify incineration as a method of treatment for
F024 wastes ..- Ordinarily the Agency would hot alter a
' regulatory standard due to industry recalcitrance. In this case,
however, the clear existence of a problem, the Agency's desire to
have industry resume treatment of these wastes (there was no'
capacity shortfall until EPA promulgated the Second Third treatment
standard), and the statutory prohibitions on disposal and storage
. (which foreclose all legitimate waste management options) have
led EPA to revise the treatment standard. , , '
55 Fed. Reg. at 22,581. Since,that time; EPA has promulgated
dioxin and furan treatment standards for only one other type of .
waste that would require incineration
-^dioxin-containing'multi-source leachate (F039).l In the case of ,
F039 wastes, however, it was clearly understood that very/little of .
, the waste would require treatment. See Response to Comments on the
Background Document for the Second Third Land Disposal Restrictions-
» in;the Proposed Rule Dated January 11, 1989 (54 FR 1056), Vol 3 .
(June 8, 1989) (response to comment 51 Cii-1) (noting that . .
"[tjheAgency does not expect, however, that dioxins and furans
will often be present in multi-source leachate at concentrations
' requking treatment"). As such, the stigma and related
capacity shortfalls that normally would have been expected to result
from the dioxin arid furan treatment standard for F039 did not arise.
"-.. ^. -' \
' ':. . 125?' ''."'' ' ' '
-------
in practice. ' . . ,
- In the current proposal, EPA has .suggested that its combustion
strategy will alleviate the stigma problem. See 60 Fed. Reg. at .
43,686. See also Background Document for Capacity Analysis for Land .'
Disposal Restrictions - Phase IV:' Issues Associated with Clean
Water Act Treatment Equivalency, and Treatment Standards' for Wood-
Preserving Wastes and Toxicity Characteristic Metal Wastes -
(Proposed Rule), at 311 (Aug. 1995) (Diet. No. PH4P-S0292)
(hereinafter"Capacity Analysis"). But EPA has failed to explain
how its combustion strategy which focuses . .
1" The BDAT treatment standard for nonwastewater forms of K099
wastes also specifies a 1 ppbxlimit for dibxin and ftiran.
constituents, but that standard is based on chemical oxidation and
not incineration. 53 Fed. Reg. 31,138, 31,170 (Aug. 17, 1988). As ^
such: the K099 treatment standard does not raise the stigma.issue .
discussed above. .
on reducing dioxin/furan emissions would address the heart of the
stigma issue the reluctance of incinerator operators to analyze
for dioxins and furans in combustion residuals. This reluctance is
accounted for by three factors: (1) the cost of analysis for
dioxins and furans which can-run as
high as $1,500 per sample, (2) the need for multiple burns to
reduce dioxin/furans in treatment residuals to low levels, and (3) ;
the considerable concern within the treatment industry ,
that analysis for dioxins/furans in treatment residuals may open up
a "Pandora's Box." The last factor arises because dioxins and
furans are present in many of the chlorinated waste streams
handled by incinerator facilities and are also products of
incomplete combustion ("PICs"), and the industry is not .currently,
required to analyze, or otherwise account, for the dioxins/furans
in the residuals.
Indeed, data in the docket for this rulemaking strongly suggest
that there may be a significant concentration of dioxins/furans in
the paniculate matter currently removed from emissions
by incinerator air pollution control devices. The Draft Combustion
Emissions Technical Resource-Document (CETRED), (EPA 530-R-94-014)
(May 1994), presents data on paniculate emission rates for 17
commercial hazardous waste incineration facilities (22 data sets
with a total of 133 data points). CETRED, Table 4.3-1. The average
paniculate emission rate for the facilities was 0.19 grains (gr)
of paniculate per dry standard cubic foot (dscf) of. stack gas
where the oxygen level of the gas is-7 percent. Id. The
\ , f _
" '. 1258 "."
-------
dioxin/ruran an emission rate for eight of these facilities is also
given in Table 4,9-2 of the GETRED document; the average was 157,5
nanograms (ng)of dioxins/furans per. dry standard cubic meter
(dscm) of stack gas with a 7 percent oxygen content. The following
equation provides a1 measure of the average
dioxin/furan concentration in the emissions: /
{{(157.5 .x 10-9 g/dscm) / (0.019 gr/dscf)} x 7000 gr/lb} A 454
g/lb * 0.0283 cm/cf = '.';.'' "'' - -
3671 ppb, ' ' . . ' ' .
and is based'on the'assumption that the dioxins and furans in the
stack are in paniculate or condensed form. On a toxic equivalency
(''.TEQ") basis 2, the dioxin/furan concentration hi the paniculate
is roughly 193 ppb and thus. would exceed the 1 ppb limits of the
proposed rule by some two .orders of magnitude.3 ' ,
i * f
1 - !* '
2 Table 4.9-2 of-the CETRED document provides a value of 8.38
'.ng/dscm for dioxin/furan emission rates on a TEQ basis. This value
is plugged into the above equation to derive the estimate of 193
ppb for dioxin emissions on a TEQ basis.
3 The 1 ppb dioxin/furan treatment standards would translate into
1.85 ppb of total dioxins/furans on a TEQ basis. This results from
application of the TEF values for the various dioxin/furan
homologues of F032 wastes to the I ppb proposed treatment standard. .
thus, the TEF value of 1.0 provides an adjusted TEQ of 1 ppb for
TCDD, the TEF value of 0.5 provides an adjusted TEQ of 0.5 ppb for
PeCDD, the TEF value of 0.1 ppb provides an adjusted TEQ of 0.1
ppb HxCDD. Similarly, the TEQ values for the furans are: 0; 1 ppb
for TCDF, 0.5 ppb for PeCDF, and 0.1 ppb for HxCDF. These values
conservatively, assume that all dioxin and furan congeners are
present in the biologically active 2.3 78-chlorinated form.
The CETRED document also suggests that the dioxin/furan content of -
incinerator particulates may exceed the proposed treatment -
standards even after their operation is upgraded under , .
the combustion strategy. Two proposals for controlling hazardous
waste incinerator emissions are contemplated under the combustion
strategy. Under the first proposal, the paniculate emission rate
for. hazardous waste combustion units would be limited to 0.01-
gr/dscf and the dioxin/furan emission rate would be limited to 0.17
ng/dscm TEQ. GETRED, v, vii. The dioxin/furan concentrations in the
particulates under this first proposal could be as high as 7.4 ppb
on a TEQ basis.4 . '-
Under the second proposal, the paniculate emission rate would be
limited to 0.0049 gr/dscf and the dioxin furah emission rate would
; ' ' '. ' . .- .: 1259 '. -
-------
. be limited'to 0.12 ng/dscm on a TEQ BASIS. Id., v, vii. The
dioxin/furan .concentration in the particulate under this -. .'
second proposal could be as high as 10.7 ppb on a TEQ basis.5 Under
either proposal, therefore, the dioxin/furan concentration in the . .
participates would easily exceed the proposed dioxin/furan. . -
treatment standards for nonwastewater forms of F032 waste. . ' -
Also, in light of the public hysteria associated with.dioxins, it ' .
. is not entirely clear that the public will accept the burning of
any dioxin-containing wastes even after the combustion strategy is
implemented.' As demonstrated by the recent difficulties ,
experienced by companies attempting to obtain dioxin incinerator
permits, the public continues to be opposed to the burning of any
dioxinTContaining wastes even when the facility can demonstrate '' ' '
that it will meet 99.9999 percent DREs. '. . -
RESPONSE .
' The cpmmenter has raised several arguments seeking to persuade EPA in
withdrawing EPA's proposal for regulating Dioxin and Furan (D/F) hazardous constituents in
F032. One primary concern raised by the commenter is that there is a "stigma associated with
the regulation of D/F in wastes" that may compel incineration facilities to refuse providing
combustion services for F032 if EPA adopts the proposed UTS limits for D/F constituents.
EPA is not persuaded by the argument that the regulation of D/F should be withdrawn. The
D/F constituents proposed- for regulation in F032 are present in F032 in significant
concentrations above the UTS proposed limits and some of these constituents also supported .
the listing of F032 as a hazardous wastes. EPA also believes that combustion and non-
combustion treatment technologies are demonstrated to reduce the short- and long-term threats
to the human health arid the environment associated with the disposal of FQ32. EPA is thus
promulgating UTS limits for D/F as proposed.
, EPA acknowledges the potential impact the regulation of D/F limits may have
on the availability of combustion capacity, in particular, the reluctance of commercial
hazardous waste incinerators to accept FQ32 should EPA codify the UTS limits as the only
compliance option for D/F in F032. (EPA's experience of lack of availability of capacity for F
024 wastes after, promulgating a standard that included a numerical limit for CDDs shows that
the commenter's concerns are rational.) EPA believes, further, that combustion represents the
Beat Available Treatment Technology for F032. EPA is also persuaded by the Penta Group ..
arguments that an alternative treatment standard of Combustion ("CMBST") may make it
easier for combustion facilities to accept these wastes and still treat CDDs to levels reflecting
BDAT. (EPA's experience with the F 024 wastes again serves as a guide. The difficulties in
finding available treatment stopped after EPA amended the treatment standard to provide a
CMBST alternative.) EPA has thus promulgated an alternative treatment standard of
combustion ("CMBST") for the regulation,of D/F prior to disposal. (See the BOAT :
. . , ' ' 1260 ' . " -" . .
-------
Background Document for F032, F034rand F035, and today's final rule preamble for further
discussion on EPA's rationale in promulgating this alternative treatment standard.)
\ - .''.' -.,-.''" . '
' ' The cofnmenter also asked for clarification on how the Combustion Strategy
will minimize the stigma for regulating D/F in wastes being combusted. As noted in the
Notice of Data Availability (NODA).(see'61 FR 21418/May 10. 1996),^EPA has identified the
generation and emissions of D/F constituents from combustion devices as potential
'. environmental concern. ,-The concern is -legitimate, but is not linked to.co'mbustion of these
particular wastes. More importantly, CDD emissions from hazardous waste combustion can
be~ controlled-to levels'that are protective of human health and the environment. The Agency is
presently developing- such a standard as part of the rulemaking now being conducted for these
units. , EPA pointed out that information supporting the proposed MACT lits for, reducing the,
emissions of D/F air pollutants into the atmosphere indicates that, about half of the combustion
facilities tested by EPA meet the proposed D/F air emissions standard. (See NOD A. 61 FR
21438 and the proposed revisions for Hazardous Combustors, 61 FR. 17358, April 19, 1996). .
In the May 10, 1996 NODA, EPA proposed further several options that may minimize the
potential formation and emision of D/F from combustion devices. One suboption was to -
allow any hazardous-combustion device to manage F032 and F024 wastes prior to land
disposal. EPA also proposed that compliance with the proposed MACT limit of 0.20
ng/SCDF (TEQ) be required for those combustion devices treating F032 and F024. EPA
believes that the proposed air emission limit may need to undergo further comment and review
and that it would be to preafnature.to finilize this limit for F032 and F024 wastes. In addition.
EPA proposed to limit the combustion of F032 and F024 to combustion devices that have a
.final Part B permit under 40 CFR 264 and 266. F032 or F024 combusted in incinerators % .;
operated in compliance with the 40 CFR 265 Subpart 6 would not qualify for these alternative ,
"CMBST" treatment alternative unless the facility can demonstrate that the combustion
efficiency of the Part 265 incinerator is similar to or better than those .under Part 264
(incinerators) or Part 266 (BIFs) under 40 CFR 268.42(b). EPA is promulgating today this
proposed third option since it will allow greater access to combustion devices and it also will
allow .permit writers more latitude to prescribe technical controls and operating conditions that
; can minimize the potential for generating and emitted amounts of D/F.
, > . ' . , ' ' ' .'":'.
The commentor raises a third argument that the commentor believes shall
compel EPA to withdraw the proposed UTS limits for specific D/Fconstituents in F032, The :
commentor's argument focuses on several D/F stack emission rates suggested in the CETRED
document, TEQ assumptions, arid calculations that the commentor believes suggest that the
existing combustion devices may be unable to meet'the proposed UTS limits. EPA notes that ,
no a priori methodology yet exists which can predict the exact performance an incineration"
device will have on the quality of incineration ash,.incineration scrubber water, or on the air
emissions from combustion devices. The level of performance combustion devices can achieve
must be determined dirough field testing, and.by setting in place appropriate technological and.
operating controls that can optimize the ultimate performance of the combustion device and.the
allowed emission discharges. EPA feels that the permitting proce'ss for incinerators enables
' - " ,' .' ' ' ' 1261 ' . ' " -' '
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\
EPA and authorized states to assess the'need for such controls and to ensure that F032 are
treated via combustion practices that are well designed and operated. EPA also.believes that
the existing rules, for boilers and industrial furnaces under 40 GFR Part 266, Subpart H
provide the same assurance. v .<
1262
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DCN . PH4P039 , . . - ; .. ' /
COMMENTER AWPI ^ . ' -
RESPONDED, JL , ' ; ' ' ' . , ' '
SUBJECT WOOD11 ; - ' . ' ',
SUBJNUM -039' , ' ' - . ' . . '
COMMENT EPA IGNORES THE STIGMA ASSOCIATED WITH DIOXIN AND
FURAN WASTES - , ^ . *'"*.- f ^
' EPA states .that incineration should be able to meet the proposed
treatment standards for organic waste waters and non-wast'ewaters. >.
However, this-ignores the stigma associated with dioxin and ~
ftiran wastes. EPA is aware of the dioxin and furan waste stigma
and has acknowledged this it directly and indirectly on several
occasions. In 1991, the Agency noted that "the commercial-
hazardous waste treatment industry tends to shy away from these v ;
(dioxin-containing) wastes, thus resulting in unnecessary delays
iirsuch treatment." The Agency also acknowledged that. , ^
incineration capacity is limited and "the possibility of .
increased capacity in the future is constrained by EPA1 s "Drafr
Strategy for Combustion of Hazardous Waste", issued in May 1993.
Presently,,there is only one'incinerator permitted to accept . .
dioxin-containing wastes in the United States ( Rollin's APTUS
facility in Coffeyville, Kansas). EPA has not issued standards
dealing with paniculate matter and dioxins/furans under its .
combustion strategy. Given the strong public resistance to new .
incinerators, and the huge costs associated with permitting a (
six-9's facility (several millions of dollars), additional. , , ,
incineration capacity for these wastes is not likely. COMMENT:
AWPI believes that sufficient incineration capacity does not
exist to meet the actual volumes of F032 wastes. .
RESPONSE : . '-/.''- .' ''' . ' "
,"" ' ' \ .
EPA is promulgating treatment standards that set numerical limits for.the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to
comments from the Penta Task Force and the American Wood Preserving Institute, the EPA
has also proposed and is promulgating in today's rule an alternative compliance treatment
standard that sets combustion ("CMBST") as a treatment method for D/F constituents, in
F032. : - . . .':... ' ..'..''.;
' v , -. ' ' *.'-,''
EPA has promulgated, however, a revised "CMBST" compliance alternative
which limits the availability of the "CMBST" to those combustion devices in compliance
with applicable combustion standards in the 40 CFR 264 Subpart O, or 40 CFR 266, Subpart
H. F032 wastes combusted in devices operating under .40 CFR 264 or 266 dp hot have to
monitor the concentrations of D/F left behind in combustion residues. However, the facilities
' ; : ' ' , 1263 ' ' -. : " ' . , '
-------
must meet UTS numerical limits applicable to each organic and metal constituent regulated in
F032.as-a prerequisite to land disposal.- . .
It should be emphasized; that facilities seeking the combustion of F032 in an.
incinerator regulated under a 40 CFR 265 Subpart O do not .qualify for a "CMBST" treatment
standard, unless they, are able to make a demonstration of equivalent performance to a ^ .
permitted incinerator or to a BIF. F032 residues arising from all other 40 CFR 265 units must
meet the applicable UTS numerical limits for each regulated D/F constituent as a prerequisite -
to land disposal.
1264
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DCN PH4PQ39 . ' ' ' ' ''.';
COMMENTER AWPI 1 ,
"RESPONDER JL : . * -
SUBJECT WOQD11 .
SUBJNUM 039 ' ' ' . . ' - . . ' : ..'
COMMENT ALTERNATIVE TREATMENT STANDARDS FOR F032 WASTED EPA ,
'" 'has' '..' ^ .
' » previously, acknowledged that incineration effectively destroyed -
- dioxin and furan constituents. The Agency offered incineration., ] .
as an alternative technology in the F024 rulemaking although -
this was,in response to "industry recalcitrance" and "the , . -,
Agency's desire to have industry resume treatment [of F024]. .
COMMENT: Recognizing the stigma-associated with incineration of '
dioxins and furans, the limited capacity, and the inherent ,
difficulties in analyzing for dioxin and furan constituents, EPA
should promulgate an alternative standard based .on incineration ',
in a four-9's combustion unit. . ')-".-
RESPONSE '-".,'.''? 1
, "('' EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In reponse to
comments from the Penta Task Force and the American Wood Preserving Institute, the EPA
has also proposed and is promulgating in.today's rule an alternative compliance treatment
standard that sets combustion ("CMBST") as a treatment method for D/F constituents in
Fp32. . ' ...-.. . . -, - ; . .
, : EPA has promulgated, however, a revised "CMBST" compliance, alterantive
which limits the availability of the ."CMBST" to those combustion devices in compliance
with applicable.combustion standards in the 40 CFR 264 Subpart O, or 40 CFR 266. F032 .
wastes combusted in combustion devices operating under 40 CFR 264 or 266 dp nofhave to
monitor the concentrations of D/F left behind in combustion residues. However, the facilities
must meet UTS numerical limits applicable to each organic and metal constituent regulated in -
F032 as a prerequisite to land disposal.
s ' - It should be emphasized that facilities seeking the combustion of F032 in an .
incinerator regulated under a 40 CFR 265 .Subpart O do not qualify for a "CMBST" treatment
.standard, unless they are.able to make a demonstration of equivalent performance to'a
permitted incinerator or to a BIF. F032 residues arising from all other 40 CFR 265 units must
meet the applicable UTS numerical limits for each regulated D/F constituent as a prerequisite
to land disposal. , .
EPA's authority to prescribe treatment limits or methods of treatment under
the LDR are set under section 3004 (m) of HSWA. .Under such HSWA provisions, EPA is
-.-' , ' - 1265 ' ' - : " .
' . '. ' T >"- ' . . ^
-------
directed to set treatment standards that would reduce short- and long-term threats to the human
health and the environment; EPA belives'that .Omnibus permit auhthorities under RCRA and .
other available environmetal federal/state laws can be used to support the establihnient of . -;
3004(m) treatment standards and thus, to precribed appropriate technological controls on
treatment methods prescribed for these wastes.v EPA has promulgated specific performance
standards for" the operation of incinerators combusting certain acutely toxic wastes that contain
D/F constituents (see 40 CFR 264.343'(a) (2) and 50 FR 2005, January 1-4. 1985). "EPA has
promulgated similar kinds of technology treatment standards for hazardous wastes regulated ,
under '§268,42 and hazardous debris §268.46. These specific treatment standards under
§§268.41 and 268.46 prescribe treatment methods and EPA has relied on permit authority,
federal/state air emission standards, or promulgated operational technology performance
requirements, to ensure that the technology treatment methods are protective of the human
health and the.environment. , '
1266
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DCN PH4P039 : ' ' , '-.,'
COMMENTER AWPI . ' r . -. .
RESPONDER JLABIOSA ' ^ .. . .
SUBJECT WOOD 1.1... . ' , '
SUBJNUM 039 * / ~ : ' ' . ' ,
COMMENT .; . \ ''. -, '- ' ; , V ., ' ' '
ALTERNATIVE TECHNOLOGIES TO INCINERATION DO NOT EXIST
EPA states that "any "available technology can be used to meet the LDR level: All of the
so-called "alternatives" were evaluated by the Office of Technology Assessment (OTA) in
1991.' . - '.;-. . '. ;,'
Of the thirteen identified dioxin and furan treatment technologies; only one (rotary kiln
incineration) had been developed, permitted and used on a site cleanup.
COMMENT: .
AWPI is unaware of any alternative technology that has been developed to commercial
scale, permitted to receive, and capable of meeting the 1 ppb PCDD and PCDF UTSs. ;.
INCINERATION FOR F032 IS NOT "AVAJLABLE" . " , '
EPA has based its treatment standards for F032 on incineration. The Agency estimates
that the 49 plants using pentachlorophenol generate 12,600 tons of FQ32 non-wastewater
process .-/-
sludges and residuals per year. In addition, these plants will generate some 10,500 tons of
F032 _' ' ' ,. ' ' :, ' .' ( "
soil and debris annually. ' . .
While not disputing that the technology has been demonstrated, AWPI questions how
EPA can state that it is "available." Only one site (APTUS) is permitted to accept
dioxih-containing wastes with a 19,500 to 24,500 tons per year capacity. Of that amount, 70
percent is dedicated to TSCA-regulated PCB waste leaving 5,850 to 7,350 tons per year
capacity available for other waste streams. -.-,.'..
COMMENT: . . . . .
_. If,one assumes that the APTUS facility will dedicate ttie remaining 30 percent capacity
exclusively to burning F032 waste, and assuming the high.end of the capacity range (7,350
tons ';. . '.;*', .: ' .. ,. . '-'
per year), the APTUS facility comes up. short by 15,750 tons per year. One six-9's facility
does . . ' ''':-' .
not'constitute "available" technology. ... , ,
.1 i ^
REPSONSE: .
The commehter believes that treatment technologies identified in the BDAT
Background Document and the OTA document cannot meet the proposed limits for PCDD and ^
PCDF in media contaminated with F032. It appears that the commenter is also referring to
: 1267 ' -.-'' ' ' . ' .
-------
how the proposed limits my impact remedial activities that would like to rely on off site .
treatment options (e.g. excavation followed by offsite treatment and disposal). EPA agrees
with the commenter that most of the remedial treatment technologies described in the OTA
document and EPA BDAT document may not currently be .developed for offsite treatment.
since the focus of such treatment processes is to facilitate'onsite clean ups. , ' ;
EPA agrees with the'commenter that the proposed limits, can be achieved,
generally, via combustion. However, EPA disagrees with the comment-that soils treated via
alternative remediation technologies identified by EPA' or the OTA report often will fail to
achieve the proposed treatment limits .for PCDD and PCDF, EPA has determined that energy
and chemical intensive technologies such as chemical dehalogenation, thermal desorption, and
solvent extraction (specifically, the Critical Fluids 5-pass system) are most likely to enable the
treatment of contaminated soils to the UTS limits promulgated today. EPA also believes that
difficult tu treat soils may be amenable to optimization such that alternative^ treatment levels
pursuant to the 40 CFR 268.44 (h) can be set. (See Final BDAT Background Document for
Wood Preserving Wastes F032, F034, and F035.) This determination is based on the
treatment of'wastes, PCP oils, PCB 'oils, sludges and soils believed as difficult to treat as. F032
and F034 wastes. EPA notes that, for example, thermal desorption can achieve or treat,
generally, organics as difficult to treat as PCDD and PCDF well below the UTS limits in
matrices such as soils, sludges, and debris. Solvent extraction can also be optimized,
presumably, for sludges, oils, and permeable soils. %
However, EPA acknowledges that thermal desorption or solvent extraction residues pregnant
with PCDD and PCDF at concentrations above the UTS limits will have to undergo subsequent'
'treatment via combustion or chemical dehalogenation prior to disposal.
' ? "
, - ' EPA recognizes and acknowledges, further, that there will be.soils or.
contaminated media for which either the treatment standards are inappropriate or simply,"
cannot tie achieved. EPA believes that these difficult to treat soils/contaminated media could
be addressed, generally, through a treatability variance in the 40 CFR 268.44 (h). EPA has
also listed and briefly, discussed other variances and legal venues in the Final BDAT
Background Document that could lessen the impact of the treatment standards promulgated
today (see Final BDAT Background Document and for Wood Preserving Wastes F032, F034,
and F035 and for a citation of appropriate EPA guidance). EPA is thus promulgating, today;
treatment standards as proposed. -
1268
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; Another concern expressed by the commenter was what kind of controls EPA
intended to impose on the combustion of F032. EPA is'clarifying that F032 are toxic wastes
and that combustion devices combusting these wastes would be required to meet appropriate ;,
combustion controls that would .ensure the destruction of PCDD and PCDF. And the -" ,
combustion of these wastes can take place in either four- nines or in a six-nines Destruction
and Removal Efficient combustion device. Because EPA believes that well designed and well
operated combustion devices can meet, generally, the promulgated limits, EPA has
promulgated an alternative compliance treatment standard of combustion. Compliance with
these standard waives the need for monitoring for PCDD and PCD.F in combustion residues as
long as other hazardous organic and metal constituents are monitored prior to disposal. EPA
has limited, -however, .the availability of this alternative combustion treatment standard* to units
treating with combustion.controls under Part 266, BIFs,or Part 264. incinerators. A Pan 265.
incinerator-, who can demonstrate to EPA that the combustion controls at the facility's
combustion unit are equivalent to a part 266, BIFs, ' or Pan 264, incinerator, may be able to
qualify for the alternative combustion treatment standard provided the Part 265 facility .obtains
from EPA an equivalent treatment determination pursuant to the 40 GFR Part 268.42(b). (See
preamble discussion and Final BDAT Background Document for Wood Preserving Wa'stes for
additional discussion on the implementation of .the CMBST standard.) EPA believes that this
alternative compliance treatment standard can. address the concerns expressed by the
, commenter on what kind of controls EPA will'impose on the combustipnpf F032 wastes..
,1269
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DCN PH4P058 . ' . ^ .. ' ' '. '
C.OMMENTER JH BAXTER ,
RESPONDED JL . , . . " " ' "
SUBJECT WOOD11 \> ' '.-.' '
SUBJNUM 058 .' . '..',
COMMENT . .
In contrast to the.concern about treatment delays it viewed as
serious in 1991, EPA now curtly dismisses the issue in one
sentence, stating that the Agency's "Combustion Strategy" '
will alleviate this problem. 60 Fed. Reg. at 43682. In reviewing
- ' the proposed regulation there is no discussion of the "'Combustion
Strategy" or -whether facilities legally will be able to accept
" and treat wastes with the associated dioxin standard using this
"Combustion Strategy."
Presumably,,the "Combustion Strategy" refers to a draft policy
statement issued by EPA on May 18, 1993, that discusses both short
"- /and long-term goals for,incinerators and industrial furnaces. It is
impossible to ascertain how this policy statement can alleviate
the unwillingness of the hazardous waste industry to accept F032 wastes if a dioxin
standard is imposed. As noted earlier by EPA, refusals by N
commercial hazardous waste treaters to accept wastestreams
with specific dioxin standards are based on. public sensitivities ;
and concerns about increased liability. Changes in permitting .
requirements or incinerator capacity applicable to a dioxin;
'standard for F032 may be goals of EPA's draft policy. These goals
currently have not changed public perceptions, or decreased
liability concerns for waste treaters. No treatment standard
should be tied to these changes until they are realities.
In the newly proposed regulation, EPA has identified only one
commercial facility currently permitted.to combust wastes that may
have PCDD and PCDF constituents with concentrations above'the
treatment standard proposed for F032 wastes. 60 Fed. Reg. at
43681. It is our understanding that this incineration facility has
an annual capacity of only 22,000 tons/ Seventy percent .of this
annual capacity is devoted to incineration,of TSC A-regulated
wastes contaminated with polychlorinated biphenyls. Therefore, this
facility has additional annual capacity for only 6,600 tons of
wastes from RCRA-regulated disposal activities. This
predictable, extreme capacity shortfall is riot addressed at all.by
EPA in the proposal. , .
RESPONSE
1270
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, ., The.commenter asked EPA to clarify how the Combustion Strategy may lessen
the public perception on the combustion of D/F containing wastes. Under the Combustion
Strategy, EPA has directed permit writers to conduct risk assessments and to determine
whether or not the combustion of low level dioxin containing wastes is being conducted in a
manner'that is protective of the human health and the environment. EPA is exercising EPA's
Omnibus permit writer authority under the statute to ensure that the combustion practices are
being conducted properly. In'addition, EPA has proposed new regulations for Hazardous
Waste Combustors, revised Standards, namely the MACT Combustion rule, that would set air
emission limits on,D/F paniculate emissions. (See 61 FR 17358-17536, April 19, 1996.)
1 -* ' " i
Subsequent to the Phase 4 proposal, 'EPA published a Notice of Data
Availability (NODA) that call for three suboptions that may allow the disposal of F032 wastes
combusted in well designed and well operated combustion devices-without the need that D/F
constituents are monitored in the treated waste"prior to disposal. EPA proposed three
suboptions that'would implement the proposed combustion compliance alternative, namely .a
combustion "CMBST" standard: (1) adoption of the existing "CMBST" standard for' F024
(chlorinated aliphatic .waste that also contains D/F constituents), (2) a "CMBST" that would
.compel meeting a proposed MACT limit for D/F air emissions, and (3) "CMBST" that would .
limit the combustion of F032 and F024 to fully permitted incinerators under 40'CFR 264 Part
B. (See 61 FR 21418, May 10, 1996.) , '
After an exhaustive' review of the public comments and due to an outgrowth
of the public comments, EPA withdrew suboption 2. EPA also withdrew subption 1 since
EPA concluded that adoption of suboption 1 may limit EPA ability to compel risk analyses and
incineration studies that can demonstrate that F032 or F024 wastes are being cpmbsuted in
manner protective to the human health and the. environment. EPA was also persuaded by
comments emphasizing that combustion units operating pursuant to 40 CFR 266, Subpart H
must .meet stringent emission and combustion controls and that EPA Omnibus permit
authorities can also be used .(for permitted devices) to ensure that the combustion of F032 and
F024 is conducted hi well designed and well operated combustion devices. EPA has
promulgated, therefore, a revised suboption 3 that limits the availability of a ','CMBST" for the
regulation of D/F constituents regulated in F032 or F024 to those F032 or F024 wastes
combusted in either 40 CFR 264 or 266 combustion devices. F032 or F024. wastes combusted
in 40 CFR 265 incinerators must meet applicable UTS limits for D/F as a prerequisite to land
disposal, unless the owners/operators are able to make a demonstration of equivalent
performance to a permitted incinerator or to a BIF. '.-. , "
1271
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DCN PH4P058 ' :' .
COMMENTER JH BAXTER
RESPONDER SB . - . "...
SUBJECT WOOD11 ,
SUBJNUM 058 '-.'-"-"
COMMENT
Along with other members of the wood preservation industry, J.H.
Baxter is concerned about the impact of the proposed 1.0 pan per
billio'n treatment standard for dioxins and furans in the F032,
wastestreams. J.H. Baxter believes there is not adequate capacity
for treatment of F032 wastes if a treatment standard is established '
for dioxin constituents: Even with adequate capacity, the high cost
of incineration would make the economic impact on our company and
- other affected wood treating facilities devastating.
- We also have provided comments on the current classification'of
wood preserving production waste waters as solid waste. J.H. Baxter
believes EPA should amend the regulations to exempt recycled wood
preserving waste waters from the .definition of solid waste. ,
I. Treatment Standards for F032 Wood Preserving Wastes. EPA's
Proposal Does Not Address Capacity Shortfall Issues'
J.H. Baxter uses pentachlorophenol (penta) to treat wood products, .
primarily utility poles and utility pole cross arms, that are
exposed to extreme weather conditions for extended periods of
service. The treating solution for,these wood products consists,of
penta and oil, usually fuel or " . .
diesel grade. Consequently, F032 wastestreams have high energy
values. They are accepted at permitted incineration facilities as
alternative energy sources. If the proposed regulation with the
associated, dioxin standard is adopted, the wood preserving
industry no longer will be able to utilize the facilities currently .
permitted to burn F032 wastes. <
In 1991 EPA requested data and comments on treatment standards for
many newly listed RCRA wastes, including F032 wastes. At that time,
the Agency noted that in its experience when dioxin and furan -
constituents are proposed for regulation in waste-specific
treatments, the hazardous waste industry "tends to shy away" from
V the treating such wastes, creating delays in treatment. 56 Fed.
Reg. 55160, 55179 (Oct. 24, 1991). The proposal stated that the
delays result"due to the acute sensitivity of the public to these
constituents and the increase in liability resulting from handling -
them. Id. In effect^ these wastes are pariahs as far as the
public and the
. hazardous waste treatment industry are concerned. EPA, therefore,
/
" . . - 1272
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solicited ideas on how F032 treatment standards could be' . . "
constructed, so as to avoid anticipated bottlenecks in treatment
',' . for these wastes. - . .
In the current proposal, EPA notes that many cornmentors'to its /- '
1991 notice expressed concerns that facilities would not accept the -.,.''-
~ F032 waste if the treatment standards, include a dioxin limitation. " .
. , J.H.Baxter shares these concerns. J.H. Baxter has been informed .
' . by Laidlaw Environmental, the commercial hazardous waste facility
currently handling .our F032 wastestreams, that Laidlaw will not
accept these wastes if the dioxin standard for F032 wastes
is adopted. J.H. Baxter has no doubt that it will be extremely '
difficult, if not impossible, to obtain timely treatment for F032 '
wastestreams, should dioxin constituents be regulated.
" r
RESPONSE , '"''','.
I >- j ' v
EPA is promulgating treatment standards that set numerical limits for the .
regulation of Dioxin and Furan (D/F) hazardous-constituents in F032. In reponse to
comments from the The Penta Task Force and the American Wood Preserving Institute, the
EPA has also proposed and is promulgating in today's rule an alternative compliance treatment
standard that sets combustion {"CMBST") as a treatment method for D/F constituents in
F032. ' '- .'''," '""'_ '..';".
EPA has-promulgated, however, a revised "CMBST" compliance alterantive
which limits the availability of the "CMBST" to those combustion devices in compliance
with applicable combustion standards in the 40 CFR 264 , Subpart O, or 266. F032 wastes,
combusted in combustion devices operating under 266 or 264 do not have to monitor the .
concentrations of D/F left behind in combustion residues. However, the facilities must meet"
UTS numerical limits applicable to each organic and metal constituent regulated in F032, as a
prerequisite to land disposal! .
,It should be emphasized that facilities seeking the combustion of F032 in an incinerator
regulated under a 40 CFR 265 Subpart O do not qualify for a ".CMBST" treatment standard,
; unless they are able to make a demonstfationjof equivalent performance to a permitted
incinerator or to a BIF. F.032 residues arising from all other 40 CFR 265 units must meet the
applicable UTS numerical limits for each regulated D/F constituent as a prerequisite to land
"disposal. ' ' . ' . .
Although the commentor supported the promulgation of the proposed
"CMBST" treatment standard under sUboption 1, EPA believes-that the adopted final - '
"CMBST" standard fully addresses the commentor's concerns. ; ,
1273
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1274
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DCN PH4P097 '. . ' ' -';-.' '.' :
COMMENTER Hazardous Waste Management ;'.'
RESPONDER JL - ' -.;' . -
SUBJECT WOOD11 " , v '
SUBJNUM -097 > . '".-*.' . '...-."'
COMMENT -. * ' , ' , ' . " ' ' '
- \. ,
Secondly, the Agency has not adequately considered the extent of - -
the existing capacity to combust this waste-as supported by the
Agency's own statement that, "EPA has identified one commercial
facility currently permitted to combust'wastes that may have PCDD
. and PCDF constituents with concentrations one or two orders of
magnitude higher than those levels found in F032" (60 FR.43682).. ' -
This statement contradicts the Agency's capacity analysis which'
\ indicates that there is sufficient incineration capacity for wood . -...-'
- preserving waste streams. Currently, there may be incineration
capacity for the F034 wastes; however, that capacity does not , . ,
include capacity for dioxins and ftirans that are proposed as BOAT \-
for F032. Furthermore, it is not clear how the Agency's Combustion
Strategy will alleviate this problem as. asserted by the Agency. -The
establishment of stricter dioxin and furan.requu'ements on
combustion facilities, will still not alleviate the myth in the eyes
of the public that dioxin is the most toxic compound known to
man and that no exposure is acceptable. As a result, the Agency > ,
should reevaluate this position and either promulgate a two-year
capacity variance or remove the dioxins. and furans from the . ,
F032 treatment standards.
RESPONSE
It appears that the commenter was concerned that .since the BDAT model
supporting numerical limits for D/F constituents was based on six 9's Destruction and
Removal Efficiency (DRE) incinerators, facilities seeking compliance with the numerical
limits in RCRA incinerators, cement kilns, or other industrial furnaces achieving a four 9's ,
DRE were likely to fail the proposed UTS limits. It also appears that EPA's discussions in the
preamble and the BDAT Background Document for F032, F034, and F035 that at least one
facility was permitted to treat D/F containing wastes as difficult to treat as F032 led the
coramenter to believe that EPA was considering to limit the combustion of F032 to a six 9's
DRE -RCRA combustion device. EPA is clarifying, therefore, that in today's rule.EPA is
not amending §§264.343 (a) (2) or 266.104 (a) (3) to compel the combustion of F032,or F024
in a six 9's Destruction and Removal Efficiency combustion device. Nor has EPA proposed
that the combustion of F032 or F024 is only conducted in a six 9's.or a four 9's DRE -
RCRA combustion device. . '.'' . ' '
1275
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It should.be noted that although the BOAT combustion technologies supporting
.the'development of UTS limits for D/F regulated in nonwastewater forms of F032 and F024
met a RCRA incineration performance of six 9's DRE performance, the modeled compliance
treatment alternative of "CMBST" was based on the performance a four 9's DRE - RCRA.
264 Subpart O, rotary, kiln incinerator combusting F024. Data from the F024 incineration
study shows .that a well designed and well operated.four 9's DRE incinerator can also meet the
proposed limits of 1 ppb for nonwastewater forms of F024. Facilities seeking the combustion
of F032 in an incinerator regulated under'a 40 CFR 265 Subpart O do not qualify for a
"CMBST" treatment standard, unless they are able to make a demonstration of equivalent
performance to a permitted incinerator or to a BIF. F032 residues arising from all other 40
CFR 265 units must meet the applicable UTS numerical limits for each regulated D/F
constituent as a prerequisite to land disposal. , ' .
The commenter also stated that there is insufficient treatment capacity to treat
F032 wastes. As detailed in today's preamble, EPA believes there is sufficient capacity for
both wood preserving wastewater and nonwastewater hazardous wastes. However, given the
lack of available capactiy and other issues associated with soil and debris contaminated with,
F032, F034, and F035 wood preserving wastes, EPA is granting a two-year variance for these
wastes. In addition, EPA has determined that sufficient alternative treatment capacity is not
available for radioactive wastes mixed with wood preserving wastes, and is granting a.two-year
national capactiy variance. .
i
EPA notes that in 1989, the Agency found difficulty in locating facilities to
receive F024 wastes until the treatment standard was amended to include a CMBST alternative.
Under the same line of reasoning, the Agency believes that by including the CMBST.
alternative for F032 wastes, generators will have more flexibility in their choice of treatment
facilities. The Agency also believes that by promulgating the CMBST alternative for F032 ;
wastes, constituents of concern will continue to be fully treated, and therefore the standard
does not compromise the Agency's commitment to protection of human health and the
environment. .''.,'
.1276
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DCN'- PH2A003 ' . ' .'...,' '.'."'
COMMENTER The Penta Task Force - .. . ' '
RESPONDER JLABIOSA , - . . ' .
SUBJECT WOOD11 '- ' ' > .' .
SUBJNUM 003 . '..-. . '
,COMMENT As explained in our November, 1995 comments, the . .
practical consequences of setting dioxin/furan numerical limits . , '
for F032 wastes would be to force wood preserving facilities to
send their wastes to the only commercial incineration facility , . ..
. -- the Aptus Incinerator in Coffeyville, Kansas - that is . .
j permitted to treat dioxin-contaihing waste. The cost would be- . ,
exorbitant. The most recent quote for incinerating F032 waste at
. the Aptus facility is $5:63/lb($ 11,260/ton). Given" the volumes ,!
of F032 waste that are expected, to require treatment annually - (
some 12,600 tons of F032 nonwastewater sludges arid residuals
(see Capacity Analysis, 3:8)-- the cost of treatment at the . . .
Coffey.ville facility would be roughly $142 million per year..
These prohibitive and unnecessary costs would .need to. be borne u
by the relatively few wood preserving sites - 49 in all -,- that
would be subject to the rule. In sharp contrast, a CMBST "_
" standard would allow F032 waste to be appropriately managed at a ;
fraction of that cost. FOOTNOTE I/ The , , .
' Penta Task Force believes that the exorbitantly high cost of ,, .
incineration at the Coffeyville facility is a direct consequence <
'.,'< of the lack of competitive pressure by other combustion - ;
facilities. These other facilities have no intention of ' . ' ;
accepting F032 waste under circumstances where they would be ; '
required to analyze their combustion residuals for dioxins and
rurans, the^operator of the Coffeyville facility has argued in . ,
comments to the Agency that it supports stringent dioxin/furan
limits for F032 waste! But that commenter has provided no, health
or safety, justification ito support its position. And we find it ,
difficult to believe that a regulated entity would argue for
. more stringent regulation unless it believed that a competitive .
advantage would accrue from such regulation. - .
RESPONSE ' . , ;
J - . '
': The cbmmenter is concerned that EPA's proposal that some of the proposed
regulatory controls on the combustion of FQ32 and F024 wastes may create a defacto
monopoly on treatment of these wastes at high, and unneded cost: Specifically, the .
commenter is concerned with EPA's proposal to promulgate suboption 2 as prerequisite for the
disposal.of F032 via a "CMBST"Jcompliance treatment alternative. In general, the
. ' " ^ '
'''' '' ' .. . ; ' ' 1277-' '- ." '/...-
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commenter is fully supportive of the proposed "CMBST" treatment alternative. The
commenter feels that F032 merits a similar " CMBST" treatment'alternative as F024 and the
commenter asked EPA to clarify its rationale for proposing potential amendments to the
existing "CMBST " treatment alternative. . ' .
The final rule provides'a means for most combustion units to accept these
wastes and satisfy BOAT treatment requirements without specifically analyzing ash for CDDs.
In reponse to comments from the The Pehta Task Force and the American Wood Preserving
Institute" the EPA has proposed and is promulgating in today's rule an alternative compliance
treatment standard that sets combustion ("CMBST") as a treatment method for D/F
constituents in'F032. . , .
The revised " CMBST" compliance alterantive limits the availability 'of the
."CMBST" to those combustion devices in compliance with applicable combustion standards
in the 40 CFR Part 264, Subpart O, or 40 CFR Part 266, Subpart H.. F032 wastes combusted
in combustion devices operating under Parts 266 or 264 do not have to monitor the
concentrations of D/F left behind uVcombustion residues. However, the facilities must meet
UTS numerical limits applicable to each organic and metal constituent regulated in F032 as a
prerequisite to land disposal. Facilities that qualify for this option are not specifically required
to maintain a DRE standard at the same level as required for F020, F021, F022..F023, F026,
or F027 under 40 CFR §264.343(a)(2). The revised "CMBST" compliance alternative only
requires the use of combustion units that are permitted under either 40 CFR Part 264,_Subpart
O, or Part 266, Subpart H. ' : x". ;
It should be emphasized that facilities seeking the combustion of F032 in an
incinerator regulated under a 40 CFR' 265 Subpart O do not qualify for a "CMBST" treatment
standard, unless they are able to make a demonstration of equivalent performance to a
permitted incinerator or to a BIF; F032 residues arising from all other 40 CFR 265 units must
meet the applicable UTS numerical limits for each regulated D/F constituent as a prerequisite
to, land disposal. . .
1278
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PCN , PH2A009 ' ',..".' ,'-' ' '" :
COMMENTER: Dow Chemical ' . '.-
RESPONDER JLABIDSA . ' " . ' .
SUBJECT WOOPII. , '
SUBJNUM 009 - ' . '
COMMENT Suboptions 2 and 3 also raise national capacity questions which
EPA must address before further consideration of adopting such '
constraints can proceed In considering the additional; , - - . .
limitations described in Suboptions 2 and 3, EPA has not , '-.""".
/' addressed whether sufficient available capacity would remain "' .
. which is licensed to treat the volume of F024 and F032 currently
generated. Dow alone currently generates over 50,000 tons per
year of F024 at its U.S. facilities. Implementation of ' '
Suboptions 2 or 3 would require a significant portion of that
waste volume to be managed offsite in commercial units. Before '
proceeding, EPA must analyze the U.S. wide generation of the
^potentially impacted waste codes considering how much available ,
treatment capacity would be available after such requirements
would go into effect. -
RESPONSE
' *. . * '
In today's'rulemaking, EPA'has withdrawn suboptions 1 and 2, (as explained
below) and promulgated a revised version of suboption 3 which enable the implementation of
.the proposed compliance treatment alternative for the regulation of Dioxin and.Furah ' '.
constituents (D/F) in F032., ,- - ,
Some comments asked EPA to defer the adoption.of suboption 2 to the
MACT rule. 'Other comments pointed but that adoption of suboption 3 would preclude the use
of industrial boilers and furnaces which in most instances have combustion controls that are
more stringent than incineration controls. Another comnienter expressed concerns that
adoption of suboption 1 may allow the combustion of F032 in incinerator devices operated
under 40 CFR 265 which1 the commenter feels lack adequate regulatory controls to ensure that
the design and operational performance capabilities of such devices are adequate to destroy -
D/F constituents. ,
''.' . . i , .
, ~ ' : . ,' -
,EPA finds these comments persuasive. EPA has withdrawn, therefore, the
proposed suboptiohs 1 and 2. EPA has also revised suboption 3 to limit .the availability, of the
proposed combustion "CMBST" compliance treatment standard alternative to those, units
operated under the '40 CFR 264,' Subpart O and 40 CFR 266. Facilities seeking the
combustion-of F032 in an incinerator regulated under a 40 CFR 265 Subpart 0 do not qualify
for a "CMBST" treatment standard, unless they are able to make a demonstration of equivalent
performance to a permitted incinerator or to a BIF (40.CFR §268.42(bj).' Although EPA has ,
withdrawn suboption 2,.ERA is not precluded from using existing risk analyses methodologies
\ ':' ', ' " . . '. ' 1279 -. '''-' '- '
-------
and to require the performance of combustion studies to determine what appropriate controls.
if any, should be required during the combustion of F032. EPA believes that ad hoc
technological controls can be prescribed to ensure the appropriate combustion of F032. This is
because existing RCRA Omnibus permit authorities under 266 and 264, can be used to address
the concern that F032 is treated in well designed and well operated combustion device prior to
disposal. This adopted approach may be superseded by the outcome of the proposed MACT
limits for D/F arising from combustion devices schedule for promulgation in the April 1998.
. Facilities seeking the combustion of F032 in an incinerator regulated under a
40 CFR 265, Subpart O do^not qualify for a "CMBST" treatment standard, unless they are able
to make a demonstration of equivalent performance to a permitted incinerator or to a B1F.
F032 residues arising from all other 40 CFR 265 units must meet the applicable UTS
numerical limits for each regulated D/F constituent as a prerequisite to land Disposal.
rJ ' ~ '
EPA believes that promulgation of this revised suboption 3, fully addresses
the concerns of the commenters, fully addresses the capacity concerns raised by the
commenters, and that this suboption is protective of the human health and the environment. -
1280
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. DCN PH2A012 ' . , x
COMMENTER :Beazer East '- . ' . .
RESPONDER JLABIOSA '"' - ' ',
SUBJECT . WOOD11 ; . " . - ' . ."''."
SUBJNUiM 012 '-..'"' ' ".: ' . -.''
COMMENT Specifically, EPA discusses the Penta Task-Force's and the" , ,
American Wood Preserving Institute's concerns that promulgation . "
of concentration limits for dioxin/furan hazardous constituents ..
in Hazardous Waste F032 may discourage commercial incineration
facilities from treating this waste. 61 Fed. Reg. 21420. For the
record,'Beazer also submitted comments which were critical of -
EPA's proposal to establish dioxin/furan constituent
concentration limits as LDRs for F032. It was and continues to
' . be Beazer's belief that selection of incineration as the Best . .
Demonstrated Available Technology ("BDAT") will bring cleanups . '
'.of wood treating sites to a halt due to a lack of capacity at , .
off-site incineration facilities, negative community reaction ' . " . :
for ori-site incineration facilities and skyrocketing treatment <
costs., Beazer recommended that EPA omit the dioxin/furan . ' .
constituents from the LDR constituents of concern for Hazardous
Waste No. F032. _Beazer cited several reasons for not including . , .
dioxin/furan as part of the F032 LDRs, to wit: (1) EPA's failure
to scientifically demonstrate and support the risk from low , ...-''
level exposure to dioxin/furans; (2) the problematic nature of ' ..
the analytical method used for detecting dioxin/furans; and (3) '
the non-availability of incineration capacity for treatment of. ' -
large quantities of soil .and debris which may contain F032.
RESPONSE . - . '
EPA is not persuaded by the commenter's arguments that the regulation of ;
D/F in F032 is not necessary or that such proposal would delay treatment of F032. EPA.
points out that these constitents are toxic to the human health and the environment and that D/F
constituents also supported the listing of F032 as a hazardous waste under Subtitle C of
RCRA. (See Background Document for the Listing of Wood Treater Wastes (F032, F034, and
F035)) As the commenter may be aware, EPA's existing guidance documents on the
management of contaminated media at wood preserving sites also identify D/F constituents as
RCRA constituents to be addressed during the design of clean up treatment options and within
the scope of Record of Decisions. Further, EPA existing soil guidance documents for wood
preserving sites also identify incineration and thermal desorption as treatment options capable
of meeting clean up levels and treatment standards under the LDRs. (See Presumptive '
Remedies for Soils, Sediments, and Sludges at Wood Treater Sites (Directive 9200.5-162, also'
published under NTIS: PB-95-963410); Technology Selection Guide for, Wood Treater Sites
(EPA 540-F-93-020 or Pub^9360:0-46FS); arid Contaminants and Remedial Options at Wood
''','."'' 1281 ' ' . ......
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Preserving Sites.(EPA/600/R-92/182).) ,. -. .'.-''
Finally, the majority of commenters were more supportive of EPA's proposal
to co-promulgate both treatment limits and an alternative compliance treatment standard of
combustion, "GMBST". for the regulation of D/F in F032, Like EPA, these commenters felt
that such approach can create more available capacity, based on empirical experience with
F024 wastes.' . - .
1282
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DCN ' PH2A012 , , . - : .
COMMENTER Beazer ... '
RESPONDED JLABIOSA ' . : ' '
SUBJECT WOODli .: . ' ' . . .. ' ' ' « -
SUBJNUM 012 ' ' ' . ."' . ' / - , '
COMMENT - In our comments to the proposed Phase' IV nileniaking, we
discussed the unavailability of any commercial incinerator which
, '.. could meet the proposed 1-part per billion LDR'concentration '.."
' standard for dioxin/furan, aside from the Aptus facility in
v Coffeyville, Kansas. The instant proposal would allow '
incineration or combustion of the wastes by facilities with '
destruction removal efficiencies (".DRE") of 99.99% rather than
,'the-99.9999% ORE required for "dioxin-listed" wastes. 40 C.F.R.
266.104(a)(3). Theoretically, this alternative LDR treatment , '
. standard should increase the availability of incineration and .
combustion facilities-to manage F032 wastes. ; . - :
RESPONSE « . '-/.'>
1 i , ' \ . ' V ."
; It appears that the commenter was concerned that since the BOAT model
supporting numerical limits for D/F constituents was based on six 9's Destruction and Removal
Efficiency (DRE) incinerators, facilities seeking compliance with the numerical limits in ' '
RCRA incinerators, cement kilns, or other industrial furnaces achieving a four 9's DRE were
likely to fail the proposed UTS limits. It also appears from EPA's'discussions in the preamble ;
and the BOAT Background Document for FOS2, F034, and F035 that at least one facility was
permitted to treat D/F containing wastes as difficult to treat as F032. This led the commenter
to believe that EPA Was considering limiting the combustion of F032 to a six 9's DRE-RCRA
combustion device. EPA is clarifying, therefore, that in today's rule EPA is not amending ,
264.343 (a) (2) or 266.104 (a) (3) to compel the combustion of F032 or F024 in a six 9's
Destruction and Removal Efficiency combustion device. Nor has EPA proposed that the
combustion of F032 or F024 is only conducted in a six 9's or a four 9's DRE - RCRA
combustion device. , '
; . . -
It should be noted that although the BOAT combustion technologies supporting
the development of UTS limits for D/F regulated in nonwastewater forms of F032 and F024
met a RCRA incineration performance of six 9's DRE performance, the modeled compliance
treatment alternative of "CMBST" was based on,the performance a four 9's DRE - RCRA , -
264vSubpartO, rotary kiln incinerator combusting F024. Data from the F024 incineration
study shows that a well designed and well operated four 9's DRE incinerator can also meet the; '
.proposed limits of 1 ppb for nonwastewater forms'of F024. . ' .
Based on this information, EPA believes that RCRA Omnibus permit
authorities can be used under 40 CFR 264, Subpart O and 40 CFR 266 to ensure .that the
combustion of F032
-------
devices and thus, 'minimizing the release or generation of D/F during combustion .. This
adopted approach may be superseded by,the outcome of the-proposed MACT limits for D/F.
arising from combustion devices schedule for promulgation in the April 1998. .
Facilities seeking the combustion of F032,in an incinerator regulated under a
40 CFR 265, Siibpart O do not qualify for a '"CMBST" treatment standard, unless they,are'abie
to make a demonstration of equivalent performance to a permitted incinerator or to a BIF.
F032 residues arising from all other ;40 CFR 265 units must meet the applicable UTS
numerical limits for each regulated D/F constituent as a prerequisite to land disposal. . ; .
EPA believes that promulgation of this revised suboption 3, fully addresses
the concerns of the commenters, fully addresses the capacity concerns raised by the
commenters, and that this suboption is protective of the human health and .the environment.
- 1284
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.DCN PH2A013 . - - - ' . '
COMMENTER Georgia Department of Natural Resources,.EPD
RESPONDER JLABIOSA ; ' '
SUBJECT WOOD11 . . .' ; '
SUBJNUM 013 . , . . . ' \ ' .
COMMENT The Georgia Department.of Natural Resources, Environmental
Protection Division (EPD) has reviewed the above notice of data
. availability and would like-to take this opportunity to provide , .
additional comments oh the issue of treatment capacity for soils .
contaminated with F032 wastes. Specifically, the State of
Georgia may be unique in the nation for having a very !.,
substantial amount of this material on hand that will likely (
place a strain on the Capacity of virtually any. treatment
. methodology that is ultimately selected for F032-wastes. . ,
RESPONSE . . . . -
. , >/ ... '".-.-'
EPA is addressing the commenter's concerns in today's rule.
1285
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DCN " PH2A021 . .
COMMENTER J. H. Baxter .
RESPONDER JLABIOSA - ,
.SUBJECT WOOD11 .. .
SUBJNUM 021 . . ' -
COMMENT In its comments on the August 1995 proposal. J.'H. Baxter made
. clear that the cost of incineration and lack of available
.x capacity would impose a real, unwarranted hardship on many ;
members of the wood preserving industry. Suboption 1 appears to
address this problem by .expanding the number of facilities . .
available to treat F032 wastes. In the very limited time made
available to comment on this proposal, J.H. Baxter has tried to ,
ascertain the impact it would have if implemented. We
understand from sources in the waste disposal industry that
implementation of suboption 1 should result in adequate
capacity. Further, J.H. Baxter has been informed that it should
. not cause the dramatic price increase for disposal-of F032 that
will occur if the original proposal is implemented. J.H. Baxter
has not been able to obtain any meaningful information on the
impact of suboptions 2 and 3. Therefore, J.H. Baxter remains
' very concerned that either of these are unlikely-to yield the
same benefits. They both will result in a smaller universe of .
approved combustion facilities and hi higher prices. Therefore, .
J.H. Baxter urges EPA to adopt suboption.1, not suboptions 2 or
3 when the final Phase IV rule is issued. If EPA is interested :
in proceeding with suboptions 2 or 3, it, along with OMB,.must -
carefully assess the benefits and burdens of these proposals, as
well as the impact on the regulated community. To obtain
meaningful public input, EPA also should provide additional time
for comment.
RESPONSE ' ' . '.'..
Economic considerations have no bearing in the development of treatment
standards under the LDR. EPA is relying solely on treatment management alternatives
allowed under Section 3004(m) of HSWA, which EPA believes enable the reduction of
short- and long-term risks associated with the disposal of Dioxin and. Furan (D/F) constituents
in F032 wastes. , , .
EPA is promulgating treatment standards that set numerical limits for the
regulation of Dioxin and Furan (D/F) hazardous constituents in F032. In response to
comments from the Penta Task Force and the American Wood Preserving Institute, the.EPA
has also proposed and is promulgating in today's rule an alternative compliance treatment
. ' 1286 ' .
-------
standard-that sets combustion ("CMBST") as a treatment method for D/F constituents in'
F032. . ' ; ,. _- . ''-.'...' '...
EPA has promulgated, however, a revised "CMBST" compliance alternative
which limits the-availability of the "CMBST" to those combustion devices in compliance .
with applicable combustion standards in the 40 CFR 264 , Subpart O, or 266. F032 wastes'
combusted in combustion devices operating under 266 or 264 do not have to monitor the
concentrations of D/F left behind in combustion residues. However, the facilities must meet
UTS numerical limits applicable to each organic and metal constituent regulated "in FQ32 .as a'
. prerequisite to land disposal. '
It should be emphasized that facilities seeking the combustion of F032 in an incinerator
regulated under a 40 CFR 265.Subpart O do not qualify fora "CMBST" treatment standard.!
unless they are able to make a demonstration of equivalent performance to a permitted
incinerator or to a BIF. F032 residues arising from all other 40,CFR 265 units must meet the
applicable UTS numerical limits for each regulated D/F constituent as a prerequisite to land
disposal. x
- . EPA's authority to:,prescribe treatment limits ormethods of treatment under-
the LDR are set under section:3004 (m) of HSWA. Under such'HSWA provisions, EPA is .
directed to set treatment standards that would reduce short-, and long-term threats to the human
health and the environment. EPA believes that Omnibus permit authorities under RCRA and
other available environmental federal/state laws can be used-to support the establishment of "
3004(m) treatment standards and thus, to prescribed appropriate technological controls on
treatment methods prescribed for these wastes. EPA has promulgated specific performance
standards for the operation of incinerators combusting certain acutely toxic wastes that contain
D/F constituents (see 40 CFR 264.343 (a) (2) and 50 FR 2005, January. 14, 1985). EPA has .
promulgated similar kinds of technology treatment standards for hazardous wastes regulated
under §268.42 and hazardous debris §268.46./These specific treatment standards under
§§268.42 and 268.46 prescribe treatment methods and EPA has relied on permit authority,
federal/state air emission standards, or promulgated operational technology performance
requirements to ensure that the technology treatment methods are protective of the human
health and the environment. . ' . _ .
' 1287
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1288
-------
DCN - PH2A003 - ' . . , '
CQMMEiNTER Penta Task Force ' ,
RESPONDER . JLABIQSA - . ' "
SUBJECT. - WOOD12 .'-..- : -'' "
SUBJNUM ,003 ' ' .'...'
COMMENT The Penta Task Force is comprised of the two U.S. manufacturers
- of penta - Vulcan Chemicals, a division of Vulcan Materials.
Company, and KMG-Bernuth. Inc. Penta is the chlorophenolic - .
chemical used in wood preserving processes that generate F032
waste. Accordingly, the Penta Task Force is profoundly affected
by the Agency's August, 1995 Phase IV LDR proposal and the May ,
. 10, ,1995 Notice of Data Availability. . . / , .
RESPONSE . . " . ! '
EPA is addressing the commenter's concerns in today's final rule.
1289
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DCN ' PH2A009
COMMENTER Dow Chemical Company .
RESPONDER JLABIQSA
SUBJECT WOOD 12' : "
SUBJNUM 009 . ' ' -
COMMENT The Dow Chemical Company (Dow) appreciates this opportunity to
comment oh this important Notice of Data Availability and
respectfully submits these comments on the notice published in
the May 10, 1996 Federal Register pages 21,418 - 21,422. Dow is
only submitting comments on item 2 Treatment Standards for .Wood
Preserving Waste F032, and Potentially, F024.
RESPONSE
EPA is addressing the commenter's concerns in today's final rule.
1290
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1291
-------
DCN PH2A010 '. ' ' . '
COMMENTER EOF . - :
RESPONDER JLABIOSA -
SUBJECT, WOOD12,
SUBJN.UM .010 ' ; ' .--..'
COMMENT These comments are submitted to the U.S. Environmental
Protection Agency (EPA) in response to the Agency's notice'of
data availability (NODA) related to the land disposal
restrictions (LDR) program under the Resource Conservation and
Recovery Act (RCRA). EPA's NQDA was published in the Federal .
Register at 61 FR 21418 (May, 10, 1996). Description of the .
Commenter EDF is a national non-profit environmental advocacy
, organization with more than 300,000 members dedicated to the
protection of human health and the environment by inter alia,
eliminating unnecessary exposure to hazardous substances,
including hazardous wastes'. EDF members'live, wprk, and recreate
in areas immediately affected by the; improper management of .
hazardous and industrial wastes, including the hazardous wastes
addressed in this NOD A.. EDF participates extensively in RCRA
implementation and oversight, including activities in the
regulatory, legislative, and judicial contexts. The NQDA \
Generally Though published under the title "Notice of Data
Availability", the current notice largely requests comment on
issues for which the Agency lacks data, has never proposed
regulatory language, and/or never articulated a rationale or
methodology for reaching a particular position. In many cases,
the only material on which EPA seeks comment is the position of
other commented
RESPONSE - .
EPA believes that it clearly presented certain issues for supplemental comment
in a legitimate manner. The issue is whether there should be an alternative means of
compliance for the CDD/CDF standards. EPA proposed an alternative whereby monitoring
was unnecessary if treatment was conducted in certain types of devices. The basis for the .
alternative standard was that if the device is combusting efficiently and demonstrates
compliance with all other organic standards through monitoring, compliance with CDD
standards would also be demonstrated. EPA has adopted essentially this approach in the final *
rule, the alternative being available only to combustion devices subject to at-the stack controls
which show efficient combustion conditions (these are BIFs and permitted incinerators, all of
whom would be subject to continuous CO or HC standards; and in some cases, to at-the-stack
CDD/CDF controls, plus interim status incinerators able to demonstrate equivalent
performance.) EPA believes that this level of combustion is a valid alternative way of
-' " '
, ' ' " 1292 . - ' ' .
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expressing BOAT for the CDDs in the wood preserving wastes.
r
1293
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DCN PH2A010 -.-'
COMMENTER EDF ' ...--.
RESPONDER JLabiosa ' - ' 'f
SUBJECT WOOD12 . -
SUBJNUM 010 . - , ' ' '
.1 p .
COMMENT Conclusion EPA should abandon issues raised in the NODA not
ripe for consideration in this rulemaking, and promulgate the
1 necessary treatment standards as.expeditiously as possible .
> "" reflecting the comments expressed herein. .
RESPONSE I1.'-'. ' ' . ' -. '
EPA believes that the revised suboption 3 allowing .the combustion of F032
and F024 in combustion devices regulated under 40 CFR 264 Subpart O, and 40 CFR 266
Subpart H, fully addresses EDF concerns that these wastes are combusted in a manner that will
achieve the numerical CDD standard. The Agency's experience with F024 wastes, which can
achieve these same standards (as established initially in the June 1989 Second Third
rulemaking), demonstrates that combustion properly conducted can treat CDDs to this level:
See also information in the BDAT Background Document for these wood preserving wastes.
EPA believes it is warranted to adopt this alternative standard, because a) the standard is
equally effective at minimizing threats posed by land disposal of wood preserving wastes; and -
p) the alternative creates desirable flexibility' and is likely to provide more available treatment
capacity for these wastes, thus further minimizing threats by increasing the likelihood that
treatment will occur promptly. EPA's past experience with F024 wastes again supports these
conclusions. - -. -
i ' . '
EPA has Deferred the proposed M ACT standard for "the combustion of F032' and F024
to the MACT rule, scheduled forpromulgatioh in April 1998. EPA believes that adoption of .
such proposed treatment standard for F024 and F032 may impose regulatory burden on the
combustion industry while technical issues on the proposed air emission for D/F-MACT limit
are still being deliberated. EPA believes that the existing CO/HC standards, plus at-the-stack
controls on D/F, are adequate to assure that the treatment standard for D/F will be met without
analysis. EPA's experience with F024 wastes in 1989 lends credence to commefiters' concerns
that there will be insufficient capacity without this compliance alternative. EPA therefore has
decided to adopt it.
1294
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1295
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DCN PH2A011 .
COMMENTER', Vinyl'institute - ' .
RESPONDER JLabiosa . " -.-.''
SUBJECT . WO.OD12 -
SUBJNUM Oil , , - -
COMMENT On behalf of our client, the Vinyl Institute (VI), a division of
The Society of the Plastics Industry, Inc. (SPI), we are pleased
to submit the following comments on the above-captioned matter.
61 Fed. Reg-. 21,418 (May 10, 1996). As discussed below, we
.support.suboption 1 as it relates to F024 wastes.
RESPONSE , ,
EPA is addressing the commenter's concerns in today's final-rule.
1296
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DCN PH2A012 ' \ '.
COMMENTER , Beazer East ~ . . - .
RESPONDER JL
SUBJECT WOOD12 . - ,."
SUBJNUM 012 ' -'/ , -."-'. . -..-
COMMENT EPA has identified three suboptions for implementation of the'
proposed alternative treatment method. Suboption 1 would apply <..'>
the existing F024 combustion treatment standard to F032.
Suboption 2 would establish the incineration/combustion
alternative standard but would require the combustion unit to ,
achieve a dioxin/furan emission standard. Thus, such units would
be required to install controls to limit the potential for . . '
forming and emitting dioxin/furan emissions into the atmosphere
or adsorption into the,waste. EPA has suggested that the ' / '
dioxin/furan emission standard proposed by EPA under the Clean
.' Air Act, that is, a maximum toxicity. equivalent emission r .
standard of 0:2 mg/dscf for combustion units burning ..
RCRA-hazardous wastes, could be a requirement of the combustion x
alternative treatment standard. Under this suboption, any
RCRA-permitted or interim status combustion device capable of
... meeting the 0.20 mg/dscf standard would be allowed to combust .
F032. The third suboption would limit the combustion of F032 . . -
. * waste to combustion devices that have been permitted (i.e.,
v Suboptions 1 and 2 would apply to interim status and '
fully-permitted facilities but under Suboption 3 only .
fully-permitted facilities could accept hazardous waste). 61
Fed. Reg. 21421. .".., . .
RESPONSE. " - ' ' ''\ .'..,'.- ' ' ' '' .-.'.'.'
In today's final rule, EPA is promulgating, as proposed, numerical limits and
an alternative compliance treatment standard for the regulation of each Dioxin and Furan
(D/F) constituent regulated in F032 and F024; After reviewing public comments, EPA
decided not to promulgate suboptions 1 and 2. In addition, EPA amended the proposed
suboption 3 and promulgated a revised combustion --"CMBST" treatment standard
alternative that meets BDAT under the Land Disposal Restrictions. The revised "CMBST"
standard is only available for those units operating pursuant to permit conditions under 40
CFR 264, Subpart O, or operating under the Part 266 standards for BIFs. F032 or F024
wastes treated pursuant to the ."CMBST". treatment compliance alternative do not have to be
monitored to see if the numerical limits for D/F constituents have been achieved. However,
the other .organic and metal constituents must be analyzed to assure they meet the applicable
UTS limit as a prerequisite to land disposal. ,
1297-
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' : Facilities'who choose to combust F032 or F024 in an incinerator operating
pursuanfto 265 provisions must meet the applicable treatment limit for each one of the
resulated D/-F constituents, organics, and metals as a prerequisite to land disposal. .EPA also
believes that facilities operating a Part 265 incinerator that can demonstrate to EPA that their
combustion device operates in a manner that conforms to the combustion controls achieved by
Part 264 incinerators or Part 266 BIFs may qualify for the CMBST-treatment standard
pursuant to a treatability variance under 268.42(b). (See Final Background Document for
Wood Preserving Wastes F032, F034, and F035, April 15, 1997, and today's preamble '
discussion.) . . '
1298
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pCN PH2A012, - ' . ' ' ,; - v '.
COMMENTED Beazer " '-'
RESPQNDER JLabiosa . * . . /: ' ; ;. '. '
SUBJECT WOOD12 , ' ' ' .
SUBJNUM 012 '',.., v .
COMMENT Beazer East, Inc. ("Beazer'1), and its..subsidiaries and
affiliates with:headquarters in Pittsburgh, Pennsylvania, hereby
'. submit comments in response to the United States Environmental
Protection Agency's ("EPA's" or the "Agency's") notice of data
availability for the Land Disposal Restrictions Phase IV
Proposed Rule.-Issues Associated with Clean Water Act Treatment
Equivalency, and Treatment Standards for Wood Preserving Wastes
and Toxicity Characteristic Metal Wastes, 61 Fed. Reg. 21418, '','.
May 10, 1996 (hereinafter referred to as the "Notice"). On
August 22, 1995, EPA proposed the Land Disposal Restriction
("LDR") Phase IV rule ("proposed Phase IV rulemaking") (60 Fed.
Reg..43654) which, among other things, set forth proposed
treatment standards for newly listed and characteristic wastes. ; . .
Beazer provided comments to the August 22, 1995. Notice of
: Proposed Rulemaking which addressed the proposed LDRs for wood
' - .' preserving wastes F032, F034 and F035. These comments are
incorporated by reference as if fully set out herein. Seer '
: ' Comments of Beazer East, Inc. Regarding the August 22, 1995
Notice of Proposed Rulemaking and Request for Comment on Land
Disposal Restrictions - Phase IV, November 17, 1995. In the
instant Notice, EPA discusses certain data and comments that.it
' has received in response to the proposed Phase IV rulemaking and
requests comments on certain issues raised by the Phase IV
proposal commenters. 61 Fed..Reg. 21419.
RESPONSE . / ,., . . >
EPA is addressing the commenter's concerns in today's Final rule.
1299
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DCN ' PH2A014 . ' . . ' , . -
COMMENTER Env. Technologies Intl '.
RESPONDER JLABIOSA .. . . '
SUBJECT WOOD12 x
SUBJNUM . 014 ' ' ' , -
COMMENT IL Treatment Standards for Wood Preserving Waste F032, and
Potentially E024 In this NODA, EPA has suggested three
alternative treatment standards-for F032.wood preserving wastes. '
61 FR at 21420-21. ETC is considering these alternatives in
greater detail and will provide supplemental comment.
RESPONSE . * . -.
EPA did not, receive supplemental comments from ETC with regard to the
proposed "CMBST" treatment standard alternative and each one of the three proposed not
mutually exclusive suboptions. -
1300
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PCN PH2A015 ' :..-..-.
COMMENTER CKRC , ' ../'-.' " ' '
RESPONDED JLABIOSA
SUBJECT /WOOD12 ( ' . .: " -' ' ' ., '. . .
SUBJNUM '015 ' .' = -. . "' . .
COMMENT In the following paragraphs, CKRC comments on specific concerns
raised within each NDA option to set an alternative treatment'.
standard for F032 wastes that the Agency-has published for
comment, but stresses the importance of our fundamental process \
concern as it is applicable to each specific issue identified in ..
this comment letter. ^ .'' ( ' .
RESPONSE . . ' ' . ' - '''"..-
After reviewing public comments, EPA concurs with the commemer that
promulgation of regulatory performance requirements for combustion technologies treating
D/F constituents in F032 arid F024 will ultimately be addressed in the MACT rule and that
finalizing the MACT standards at this time is premature. The standards are only proposed,
and may well undergo change as a result of public comments received. EPA intends to
finalize the proposed MACT standards in April 1998. EPA believes further that until MACT
standards are promulgated, standards for permitted incinerators and for BIFs (which may be
supplemented by conditions adopted pursuant to permit writer's omnibus authority, upon a
proper site-specific,demonstration of need) are sufficient to assure that D/F in the waste will be
destroyed to the level of the treatment standard. The particular controls are those .assuring .
proper combustion efficiency, 'and, for some units, at-the-stack D/F standards. EPA therefore
has modified its proposal. : ,
1301
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DCN .PH2A016 ' ' - '
COMMENTED .DuPorit
RESPONDER JLABIOSA . '
SUBJECT WOOD12 -
SUBJNUM 016
COMMENT " DuPont is pleased to submit one original, "two paper and one
. . computer disk ASCII file-copy of our comments on the
Environmental Protection Agency's notice of data availability
for Land Disposal Restrictions Phase IV Proposed Rule-Issues
Associated With Clean Water Act Treatment Equivalency, and
' Treatment Standards for Wood Preserving Wastes and Toxicity
. Characteristic Metal Wastes published in the Federal Register on
May 10, 1996. DuPont is a generator and treater of hazardous
wastes which are potentially impacted by this rulemaking, once
final. If there are questions regarding any of the information.
provided in this package, please call me at 302-774-8056.
DuPont appreciates your consideration of these comments.
RESPONSE .
EPA is addressing the commenter's concerns in this final rule.
1302
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1303
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DCN. PH2A021 ' '
COMMENTER J.H.Baxter .-'-.' - ' -
RESPONDER JLABIOSA
SUBJECT . WOOD 12 ,
SUBJNUM 021 . . . .
COMMENT J.H. Baxter & Company (J.H. Baxter) submits these comments, on
the information set forth in the above-referenced notice. J.H.
Baxter is a family-owned company in the wood preserving
industry. J.H. Baxter-is very concerned about the potential
impact of the proposed regulations on the industry and submitted
comments on EPA's August 1995 Notice, proposing land disposal
restrictions for certain wood preserving wastes. Two aspects of
EPA's May 10 Notice'concern J.H.. Baxter: 1) treatment standards
for F032 wastes; and 2) excluding wood preserving-waste waters
from the definition of solid waste.
RESPONSE : ' ' ,
EPA is addressing the commenter's concerns in today's final rule.
1304
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I
I
OCN V PH4P113 '. . ' ,'.'.-.
.COMMENT ER Chemical Manufacturers; Association
RESPONDER IL . " .- ' . ' ""
SUBJECT WOOD12- "Non Detection Limits"
SUBJNUM 113 '.,'.- ..'-..
.COMMENT . ' . .
B. EPA should allow concentration-based as well as
technology-based criteria to satisfy BDAT for metals in
. ' nonwastewater forms of F032, F034, and F035. .
In the preamble, EPA indicates that for metal in nonwastewater
. forms of F032, F034, and F030, stabilization is BOAT for chromium
. (total), and that vitrification is BOAT for arsenic. Use.of the . .
word "is" and not the phrase standards "... are based on"-implies
that the Agency intends to allow only the use of these specific
' technologies to treat these constituents, to levels below which
these wastes may be land disposed. However, the regulatory
language in the table at 268.40 indicates .that the nonwastewater
,. standards for arsenic and chromium are numerical standards -
CMA has commented in the past that it generally favors
concentration-based treatment standards for BDAT and that it
supports the allowance of technology-based standards as
an alternative to, and not as a replacement for,
concentration-based standards. We maintain this position. Although
- the Agency and CMA may not currently be aware of technologies
, other than stabilization and vitrification that could be used to
treat for chromium and arsenic in the wastes described above, we
favor the flexibility afforded by a concentration-based standard
which would allow any technology that can meet these levels as an '
alternative. CMA requests that the preamble language be modified to
clarify that any technology that can meet the levels indicated in
the table may be used. '.'-'.
In addition, EPA is proposing F032 wastewater and nonwastewater
1 standards that would require meeting a concentration that does not
exceed 1 ppb (or 1 ug/kg) for all the PCDD and PCDF homologue and
isomer constituents proposed for regulation for F032 wastes. Even
if a 1 ug/kg level is achievable for PCDD and for PCDF, analytical
limitations may preclude UTS levels this.low.
Normally when EPA sets treatment standards for.a waste
, constituent, a procedure is followed in which both an "accuracy
correction factor" and a "variability factor" are applied to the
concentration of the constituent .observed in the treatment data
that supports the standard. See, Final Best Demonstrated Available
- Technology (BDAT) Background Document for Universal Treatment
'' " " .1305
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,
Standards Volume A: Universal Treatment. Standards for Wastewater
Forms of Wastes, 52 (July 1994). The accuracy correction factor is
used to account for analytical limitations in the available
treatment performance data, and the variability factor is used
to correct for variations in waste treatment/sampling, analytical
techniques and procedures, and other factors that affect treatment
performance. - .
However, we are not sure if EPA accounted for variability and "
accuracy in setting the universal treatment standards for
nonwastewater forms of these organic wastes We urge EPA to do so.
As CM A has previously written in its July 9, 1993 comments on the
May 24,1993 Interim final rule on land disposal restrictions for
ignitable and corrosive characteristic wastes whose treatments
standards were vacated, organic wastestreams are not easily
analyzed for constituents at very low concentrations. CMA (
reiterates its previous recommendation that EPA explicitly.states
that, given approved test methods, nondeductible levels of i
constituents are equivalent to zero concentration and should also
be applied this the setting of UTS levels. .
RESPONSE
follow below:
The commenter raised four issues and EPA's responses to such comments
L Clarification that EPA is setting numerical limits for the regulation of Arsenic'
and Chromium (total) in wastewater arid nonwastewater forms of F032.
- - .
. EPA is clarify ing in today's final rule that EPA is promulgating UTS limits for
the regulation of Arsenic and Chromium (total) in F032, F034, and F035. Since EPA is
establishing UTS limits that are expressed as maximum concentrations of these metals allowed
for land disposal, the use of any treatment technologies capable of meeting the UTS limits is
not prohibited except for those that may constitute impermissible dilution.
2.
F032.
'Analytical Difficulties" may preclude the establishment of UTS limits for
EPA's lacks data from the commenter to assess what kind of technical
difficulties will be encountered during .the'analysis of F032 wastes.
After reviewing the characterization data of the Penta Group, the reported
analytical difficulties, and F032 Characterization studies; EPA has concluded that the reported
1306 . ' '
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-difficulties" appear to represent more the unfamiliarity of chemists performing the chemical
analyses with D/F recommended test methods rather than"real flaws in the test method. EPA
believes,further that the alleged "difficulties" can easily be overcome by routine laboratory
'clean-up procedures and the use of appropriate solvents and other laboratory calibration \
techniques. EPA has enhanced, therefore, the discussion of these recommended procedures
. and calibration techniques in the BOAT Background Document: Also, see the Administr.any_e
Record supporting.today's Phase 4 finalrule for the technical document titled:
Background Paper Addressing Technical Issues Related to Analysis ofF032 Wood > ' '
Preserving Wastes for Dioxins arid Furans, dated June 19, 1996,
3. < EPA should correct the D/F limits for accuracy and variability.
' ,-':.' ' \
Several commenters were correct in pointing it out that EPA did-not correct
'the proposed UTS limits for D/F in F032 with accuracy and variability factors, as typically ' -
done in the'calculation of treatment standards of other hazardous constituents prohibited from
land disposal. EPA did not adjust the proposed UTS limits for D/F constituents, nor EPA is
doing so in today.'s final rule, as explained below. , ;
.' . ' * _
The UTS,treatment limits are based on combustion.technologies that EPA
believes will meet the proposed UTS. limits for D/F in F032 as long as the combustion of F032
is conducted in a device that is well designed and well operated. EPA concluded in the
. Solvents and Dioxins rule that a six-nines Destruction and Removal Efficiency,(DRE)
combustion device can routinely achieve the promulgated limit (see January 18, 1986, 51 FR
- (1733-1735)). Based on the performance of a four-nines DRE rotary kiln incinerator burning
F024, EPA believes that a four:nines DRE unit that is well designed and operated can also
meet the promulgated UTS limits for D/F (see June 1, 1990, 55 FR (22580-22581). Although
none of the submitted comments or data appear to support the revisions to D/F limits proposed
by the commenters, EPA may revisit this issue in a separate rulemaking if new data become
available..
,./'-.. ''.'"'.',''" ' ' . . .
However, EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the 'numerical UTS limit) prescribed in
the 40 CER 268,40, for the ashes arising from combustion devices. EPA refers to such
treatment limits allowances as the analytical detection limit (compliance) alternative. .Facilities
seeking the disposal of .such combustion ashes must satisfy the provisions in the 40 CFR
268.40 (d) (1) through (3) and 268.7 (b) (5) (Hi). (Also, see June 1, 1990, 55 FR (22541r .
225*2).)' ; ' . ''--...../- '.-.'...' '
' ^ . ' * i %
In addition, EPA has set.an alternative compliance treatment standard that sets
combustion "CMBST" as a treatment standard for-D/F for nohwastewater forms of F032.
To qualify for a "CMBST" treatment standard, the combustion device should be operated
under a 40 CFR 264 Subpart O or under a 266 operating permit and the Permit writer
* ', ' ' ' ' ' '
. ' : ' ' '. ! 1307 - .' '.''..
-------
will use his/her Omnibus power authorities to determine if a combustion device seeking to treat
F032 can be deemed well operated and well designed combustion devices. If deemed a well
operated and designed combustion device, the facility will not have to monitor the
concentrations of D/F constituents in wastewater and nonwastewater forms arising from the
combustion of F032. EPA feels therefore that such alternative compliance treatment standard
fully addresses the concerns raised by the commenters. .- ,
4.
Proposal that "riondetection limits" are equivalent to zero detection.
. EPA believes the commenter is concern that,a detection limit in a treated %.vaste
above a UTS numerical limit may fail to meet the applicable treatment standard even if the
targeted analyte is below the detection limit. EPA believes that a "nondetection limit" is'not
feasible way to address this concern. EPA believes that a constituent shown below a particular
targeted detection limit means that the constituent is either destroyed by the employed
technology, mask in the waste residue due to matrix interferences, or it could be measured in
concentrations below the targeted detection limit. As a result, it could be possible that the
constituent of LDR concern is still above the applicable UTS limit should the targeted selection
limit be above the UTS promulgated'limit. Therefore, EPA believes that.a facility could still be,
deemed in violation of the applicable limit if EPA detects such constituent above its UTS
limit.' ... .
However, EPA points out to the commenter that EPA generally allows
deviations from the promulgated treatment limits to concentration of up to one order of
magnitude above the applicable treatment standard (i.e. the numerical UTS limit) prescribed in
the 40 CFR 268.40, for the ashes arising from combustion devices. EPA refers to such
treatment limits allowances as the analytical detection limit (compliance) alternative. Facilities
seeking the disposal of such combustion ashes must satisfy the provisions in the 40 CFR
268.40 (d) (1) through (3) and 268.7 (b) (5) (iii). (Also, see June 1, 1990, 55 FR (22541-
22542).) Another option available to the commenter is to verify if the waste of concern is
different from the one supporting the UTS limit and seek from EPA a treatability variance
pursuant to provisions in the 40 CFR 268.44. .
1308
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RESPONSE TO PUBLIC COMMENTS
ON THE PROPOSED PHASE IV
LAND DISPOSAL RESTRICTION RULE:
Wood Preserving Wastes
Office of Solid Waste,
U.S. Environmental Protection Agency
April 15, 1997.
1309
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1310
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INTRODUCTION ,
EPA proposed the .Phase IV Land Disposal Restriction (LDR) rule in August 4995 to .
"regulate decharacterized wastewaters and several newly listed hazardous wastes.1 As.part of the
proposed rule, .the Agency solicited and .received public comments. This document reviews EPA's.
response to comments that relate to the Regulatory Impact Analysis (RIA) conducted for the 'l
proposed Phase IV rule.2 We discuss below only those comments related to the analysis of the
costs, benefits, and economic impacts of the proposed rule.? We also exclude.discussion of
, . comments on the portion of the proposed rule addressing decharacterized wastewaters. In March
. 1996 Congress passed the Land Disposal Program Flexibility Act, a statute that-essentialiy
/postpones any decision on potential regulation of decharacterized wastewaters until EPA
. conducts a study of.the risks posed by units that manage these wastes. We-alsp.exclude '
discussion of comment on the portion of the proposed rule addressing treatment standards for 1C
metals. The Agency is reproposing treatment standards for TC metal nonwastewaters. .-"
Responses to public comments made on the TC metals portion of the proposed rule will be
addressed in the response to comments document for the final rule.
In several instances, comments on the proposed rule led EPA to initiate new analysis to
reflect the concerns of commeritors and to incorporate their suggestions for improving the impact
assessment.. We identify below the major issues raised in the comments and describe the analysis
. that we performed in response. We address: each of the major issues cpmmentors raised for the
Phase IV LDR rule regarding treatment standards proposed for newly identified wood preserving
wastes; . ' v -
s ' --.' i ' .
WOOD PRESERVING LDRS
'- v " *! ' ' " i
Summary of Comments
.Commentors on the portion of the rule that establishes LDRs at UTS levels for wood
preserving wastes focused on three major issues: (1) comrrientors in the wood preserving industry
. suggested that the economic impact of establishing dipxin treatment standards based on "six
nines" incineration is very large and is underestimated in the RIA because they disagree with both
1 EPA, "Land Disposal Restrictions ,- Phase IV," 60 PR 43654, August 22, 1995.
See Regulatory Impact Analysis of the Phase IV Land Disposal Restriction Rule, which can
be found in the docket for this rule. , . .
' t
. 3 In most cases we have not addressed the wide range.of comments that deal with EPA's
selection of specific policy options. Examples of such comments include arguments related to the
Agency's decision to regulate specific constituents, the'suitability of granting compliance variances .
to certain industries, and the basis for selecting concentration standards. EPA's response to these
comments is summarized in the preamble to the final rule. ... , _ '.
'. " ' .- 1311 - . - . ' . ..-,'.'
-------
the cost per ton and tonnage affected estimates in the R1A (e.g., estimates of tonnage affected did
not include quantities of remedial waste at wood preserving sites); (2) commentors supported
language in the rule that would'provide exemptions for recycling of wood preserving
wastewaters; and (3) commentors expressed some concern about differences in the quantity
estimates in the capacity analysis and RIA (the difference was substantial, approximately an order
of magnitude) and 4) commentors-expressed concern that EPA had underestimated costs of the
proposed rule for media (e.g., soil and groundwateh) contaminated'with wood preserving waste.
Most of the commentors expressed similar concerns'and most referred explicitly'to the co.mments
of the American Wood Preservers Institute. ' ' . . ' "
EPA's Response ' . '
EPA's revised RJA addresses most of the concerns of commentors. First, [[[revisions to
the proposed rule .allow for less stringent "four nines" incineration of wood preserving wastes^-
affected by the rule. EPA reconsidered its suggestion that these wastes be combusted only in
units meetings a "'six nines7' standard. This was not required in the listing rule itself, and is not
warranted in any case.since these wastes are not listed as acute hazardous the principal dcc.'dcf.
- contaminant are HCDD/HCDFs, not the more toxic TCDD/TCDFs.. As a result of this change. .
the estimated unit costs for incineration dropped substantially, from approximately S6.000 per ton
to a range of $1,000 to $1,500 per ton, depending on whether the waste contains both organic .
and metal hazardous constituents (wastes that contain both types of constituents are more costly
to treat to UTS standards). EPA has also evaluated the option of treating newly-identified wood
preserving wastes in other combustion units such as cement kilns and the economic feasibility of''
this option. ., . -
\ ' '.
Second, the final rule affirms an exclusion for recycling of certain wood preserving
wastewaters -- this assumption is reflected in the cost and affected waste analysis conducted for
the revised RIA, as it was in the RIA supporting the proposed rule. - ' -
Third, EPA devoted considerable effort to developing revised estimates of the total,
quantity of affected waste that accurately affect the legitimate uncertainty in measuring these
quantities using existing sources of information. The revised RIA now incorporates a range of
estimates, with the low end of this range based on the waste-per-unit-'product approach employed
in the RIA for the proposed rule and the high end of this range reflecting quantities of wood
.preserving wastes reported in EPA's Biennial Reporting System. After careful efforts to correct
for differences in the manner in which the data were collected and interpreted, the two estimates
nonetheless still differ by a factor of five. Differences in these estimates reflect that BRS^
estimates include some undetermined amount of soil and debris not captured in the waste-perr
unit-production approach, and may also reflect some uncertainty over the physical form of the
waste as reported in the BRS. Using a range of estimates is a reasonable method to reflect these
uncertainties in evaluating the quantity of affected wastes. . _ ' ' . ..
i . . . '
EPA also explored the possibility of updating affected waste estimates that rely oh the
waste-per-unit-product approach used in the proposed RIA, but found that the wood preserving
- ' ' 1312 . ' '
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industry no longer sponsors development of the comprehensive, detailed estimates of industry .
production necessary to implement this approach: Recent industry data-collection efforts may not
represent trends in the industry as a'whole, and;do hot provide information at the detailed level
necessary to update the waste-per-unit-product approach. The result of EPA's efforts to improve
estimates of the impact of wood preserving LDRs are summarized in Exhibits 1 and 2 below.. .
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. ' " Exhibit 1
: QUANTITY ESTIMATES FOR NEWLY LISTED WOOD
PRESERVING WASTES BY PRESERVATIVE TYPE
Preservative Type (Wastecode i
Number of
Generating
Facilities*
Low-End.
Micklewright-based
Quantitv (tons >b
, High-End;
BRS'-basetl Quantity
. (tons)'
WastewatcrsJ . . - ' :
Creosote (Fi\34V
Crci;**eAnor*anic , .' ''
Chlcfnphemu iF032> '. ' '
Chlorophenol/lnoreanic (F0321
Chlorophenol/Creosote i F03 2)
Chlorophenol/lnoraanic/Creosote i F03 2}
Inorcahic (F0351
TOTAL -
40
18 -
19
12
6
12
362' .
' 469
284.3-5
55.220 '
56.754 >
34.632
-'37.193 ' -
".S3 5
,0"
546.009
44r> ,
i) -
;:.-MV'.:
0
0
. 1) ' .
' 59
13.260 -
Nonwaste'waters' ' . ' . ' , .
Creosote (.F0341 ' . . .
Creosote/lnoreanic i'F034>
Chlofophenol(F032") _ ' .
Chlorophenolflnorganic (F032) .'.
Chlorophenol/Creosote (F032) -
Chlorophenol/Inorganic/Creosote (T032) ' ,
Inorsamc (F035t '
TOTAL
40
18
19'
12
' 6
12"'
362 .
469
1 .086
242
348
' 240 :
' 170'
-424
1.350
3.860'
1 .6~ I' - '
8.751
.2.3 85'
' "
- ' L165» ' '
,
- . 2.907?
. "284 ' '
, 18.808
' Number of active facilities data was taken from the 1 993 Micklewright report: BRS data indicate a total estimate of over
, 200 facilities generating primary newlv listed wood' preserving wastes. ...
k . Quantitv' estimates are based on data from. Wood Preservation Statistics;-] 993: A Report to the Wood~Preserving . .
Industry* in the United States (Tables 7 and 8") and waste generation rates.fronv./fegu/atory Impact Analysis for. th<.' Finn:
^ Listing of Certain Wood Preserving Wastes (.Exhibit 2-17"). . .. '. ' '
c ' Quantiw estimates are based on data from "Revised Wood Preserving Estimates," a memorandum from. 1C F Incorporated
to EPA's Capacity Programs Branch.' June 1 8. 1 996 and include an unknown amount of soil and debris.
d ' Includes quantity estimates for wastewaters and preservative drippage. " '
'* ' No wastewaters/preservative drippage are generated. Facilities recycle/reuse all of their F035 wastewaters.
' t Includes quantitv-estimates for process solid residuals. Spent formulations are assumed .to be rhinimal. and -therefore are
,not affected by the proposed Phase IV restrictions. . .
4 In the BRS scenario, we were unable to directly classify all F032-bearing wastes. Therefore, we- have allocated the total
-F032-bearing waste quantity (8.102 tons') according to the proportions in the Micklewright scenario.
i
1
\
. r
-
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Exhibit!
Prese^ativjOv^^
Waste Quantity
(tons)_
12-
to
170 to_
424^-2121
^ i
Combined LDR
Treatment and
Subtitle'C
Disposal'
S 1.0 to SI 6
SQ.3toSlb.4
S0.3loS2.2
Subtitle C
'Land,
Disposal
(Baseline)
JiO.2 loj
SO. 1- to S1.6_
Incremental
Treatment G>
i in million" L
J0_2_v>
<0.? '>
SQ.2toSl.l
_s'o.5'lo_S3.5
SO.TloSQ.l
to
sQ. 1 to
. 1 to
,1 10 SOj
to
to S3.7.
s __
IV affeetea nom> a^.
ers are recycled/reused.
/ " .
Incineration costs for F032 arid F034 nomvastewaters assume a 99.99 percent destruction and removal efficiency rate.
The values in the F035 range appear in descending order to.mairitain the format within the range: the first value refcren
the low-end N/ucklewnght scenario, while the second value references the'high-end, BRS scenario. This is reflected in
totals! ' ' ' , . ' " . J_ ' ' ,' . v ' ' ., .
-r>A-n m;Yrti wasle reguiated by'Phascll LDRs
,nc
the low-end N/licklewnght scenaiiu. .
totals! - , . ' " . , .
Totals may not add due to rounding. , . . ' ,
Baseline costs for F032 include incineration costs for 180 tons of F032/D037-mixed waste reguiatedbv'PhascUl.pRs
j ^/ wnnd oreserving wastes is being
' i
OtaiS lim> u^v
. baseline costs for F032 include incineration cusu i^. . _.
Finally, because environmental media contaminated by wood preserving wastes is being
granted a capacity variance for two years, no costs from the Phase IV final rule will be incurred
'during this time period. Beyond this time period, any remaining remediation of these contaminated '
media still have a series of alternatives that would preclude the. need to .incinerate these media as '
comrhenters claim. In-situ treatment of these media are exempt from LDR treatment standards. '
Second, placement of wood preserving remediation wastes into or within a Corrective Action
Management Units (CAMU) designated by the Regional Administrator .does not-constitute land
disposal. 40 CFR §264.552(a)(,l). Third, the alternative treatment standard for dioxins and rurans
] for F032 wastes allows combustion in a wider range of units (e.g., cement kilns) at a lower cost than
in the proposed rule. Fourth, hazardous' debris can be treated using alternative treatment standards
.provided at 40 CFR §268.45, Finally, prospective EPA rulemakings such as the Hazardous Waste
. Identification Rule for contaminated media should be in effect at the end of the capacity variance ,
' . uis -."-..' ' ' : '
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period and afford some regulatory relief through the promulgation of generic'exit levels for
hazardous constituents. For these reasons. EPA believes that "it is inappropriate to attribute
treatment costs to the Phase IV final rule for vyood preserving contaminated media.
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