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

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    .   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

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 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

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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   '       .'"..'

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      . 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

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 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.    .                      .
                                           28

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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.                      .
                                           30

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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.      .                                 '  -       '
                                          31

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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.
                                          32

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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.
                                          34

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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

-------
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.
                                         55

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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.
                                          56

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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.                • '•      '
                                         57

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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
                                         58

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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
                                          62

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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 citation—the citation
has been corrected to refer to 261.3 (f).         ,
                                      65

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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.
                                          66

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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).
                                         68

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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.
                                         70

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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.                  -
                                         71

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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.                  ,
                                          72

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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.
                                         73

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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
                                         74

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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
                                            75

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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     ,                                   ,            .          .
                                                       76

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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
                                          78

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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

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       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
                                           93

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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§
                                          94

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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 standards—including 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
                                          95

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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
                                          96

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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
                                          97

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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.
                                          98

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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.
                                          100

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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
                                        103

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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.
                                           104

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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.
                                         105

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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
                                        106

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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.
                                          107

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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
                                        109

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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."
                                          110

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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
                                         111

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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
                                    112

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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
                                      113

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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.

                                          114

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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            ,                                                -,
                                         115

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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 (
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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.
                                          118

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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,                                .   .
                                          119

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RESPONSE
reduction effort.
              The Agency thanks you for your interest in and support of the paperwork burden
                                        '120

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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
                                         121

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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:                                          .             "
                                          122  .

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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.
                                          123

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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.                                  '
                                          124

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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.
                                         126

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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      ••. '         .  .   '

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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 standards—including 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.          .
                                        174

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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.
                                          175

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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.         ,       '
                                          176

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177

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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,
                                         178

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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.
                                           179

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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 citation—the citation has
been corrected to refer to 261.3(f).
                                         180

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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.
                                         181

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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.,
                                         182

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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.
                                          183

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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                                                .
                                        184

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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
                                         187

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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.
                                          188

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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.
                                         189

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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.
                                         190

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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.
                                          191

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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.
                                       192

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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.            .
'•                 /                        '           '
                                        193

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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.
                                          194

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RESPONSE   ,
              The commenter has discovered a mistake in. the regulations that is corrected in
the final rule.
                                          195

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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.
                                      196

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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.                ,
                                                  197

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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.
                                     198

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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    .
                                         199

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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.
                                        200

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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.
                                         201

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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
                                        203

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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^
                                         204

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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
                                        205

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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.
                                          206

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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.
                                           208

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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
                                         210

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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,
                                    211

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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
                                   -212

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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.
                                         213

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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.                                    .

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 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.
                                         ' 215

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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.
                                       216

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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.
                                    .218

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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.
                                      223

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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 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.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).                   ,
                                         225

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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).          .
                                            227

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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
                                           229

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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.                      .        .                               .• '
                                           231

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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
                                        232

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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
                                   233

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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
                                   234

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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.
                                          235

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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
                                         236

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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.  •  . •••    '   *
                                          237

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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.  . .        '                  .       ,  '',  •
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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.
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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
                                    249

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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
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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
                                   256

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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
                                     258

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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.
                                          259

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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.              .
                                        262

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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
                                        263

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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
                                   267

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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        .            .
                                   271

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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
                                   272

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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.
                                   274

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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.
                                         275

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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'

-------
    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.
                                          281

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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
                                         282

-------
   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.          .'•••"
                                            283

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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
                                         284

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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.                            .            ,'.."•-'•"
                                           285

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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
                                         286

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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.           ,'••'-•                                       .      .
                                          287

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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
                                          289

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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
                                   292

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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
                                    293

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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
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 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,
                                   295

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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.
                                          299

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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..
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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.                                                      ,
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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
                                         310

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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
                                     311

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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
                                         313  "

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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

-------
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

-------
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

-------
      • 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           •.••*•

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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 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            ."  '  •       :

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  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.                                        ,      .
                                          350

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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

-------
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             .      •
                                   363

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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  ,
                                    364

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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.                                                                        .
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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          '    •

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result in proposed regulations for these units, if risks are in fact found that would warrant such
regulation.
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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
                                        372

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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.

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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.              ,. '    .                                             "   ;
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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      ••'.---'.''•      .' ''      '  -'  '

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  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.
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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.
                                         394

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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.        ,               ',••''       •                      •
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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.'              •      .          ,            ••-,.'
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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'        ;        "                     ;

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result in proposed regulations.for these, units,, if risks are in fact found that would warrant such
regulation.                                                               "      •
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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

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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

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.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

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      .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

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   '  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

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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 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

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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

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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, 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

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'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

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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,,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

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 '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

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 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'

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 -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

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 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

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 -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
                                     426

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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
                                     431

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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        ,            .
                                          434

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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             >
       program—including 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
      program—including 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

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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

-------
      , 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:

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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             .  '    ''             '..

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  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  .     '.            '        -•  ' . -:  •• -   -

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  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   -   -•.;.•...-•

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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

-------
  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
                                                      /              ,.  •