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            Federal  Register / Vol. 55, No.  61 / Thursday, March 29, 1990 /  Rules and Regulations     1182?
Other commenters argued that the 85th
percentile was not adequately protective
of human health and the environment.
One commenter, claiming that
assumptions in the model were not
conservative enough, recommended that
the 95th percentile be used.
  In selecting the  appropriate level, the
Agency recognizes that there is no
consensus "correct" level for
interpreting modeling results. This has
resulted in a particular challenge in
developing today's rule, wherein a
quantitative approach is being used for  .
guidance in answering what is a partly
qualitative question—namely, "what is
the human health  impact of unregulated
management of certain types of wastes
in a 'reasonable worst-case' disposal
scenario?" While  the Agency believes
that the 85th percentile is an appropriate
choice to represent a reasonable worst-
case result, consideration of the
relationship of the 85th percentile DAF
to other percentile DAFs is also
appropriate. That  is, the Agency
believes that the behavior, or shape, of
the upper portion  of the cumulative
frequency distribution curve should also
be evaluated in order to determine how
critical the selection of a particular
frequency level is to the DAF.
  Another consideration in determining
the appropriate DAF value, independent
of the selected cumulative frequency
level, is the accuracy inherent in the
data set used. Given that there is some
uncertainty associated with any data  set
used to represent  possible values for
any parameter, and that the model
requires values for many parameters,
the Agency believes that the selected
DAF value should not imply an undue
degree of accuracy.
  After considering the above factors,
the Agency has concluded that a DAF
value of 100 is appropriate for
establishing the regulatory levels for the
constituents included in today's rule.1
First, the Agency believes that,
considering the number of parameters
for which distributions of values were
established (in order to represent a
"generalized" scenario), a DAF with an
order-of-magnitude precision is
  1 As explained previously, the Agency is not in
today's rule, promulgating regulatory levels for
several of the constituents for which regulatory
levels were proposed. These constituents include
those that are expected to hydrolyze appreciably
and those for which it has not yet been determined
whether the steady-state solution to the subsurface
fate and transport model is appropriate. Once the
issues associated with these constituents are
resolved, the Agency will promulgate or repropose
(as warranted) regulatory levels for these
constituents. For cases where regulatory levels are
reproposed. they may incorporate dilution/
attenuation factors other than 100.
appropriate.2 Second, in selecting this
DAF value of 100, the Agency noted that
the 80th and 90th percentile DAFs. as
well as the 85th percentile DAFs,
indicate that constituents migrating in
the modeled disposal scenario will be
diluted by approximately two orders of
magnitude. This is also true of the
predicted DAFs from the data used for
surface impoundments. Thus, EPA
believes that a DAF data used for
indicating dilution by tv.-o orders of
magnitude (i.e. 100) is appropriate.
Moreover, as the data indicate, on an
order-of-magnitude scale, the predicted
DAF is not extremely sensitive to the
exact cumulative frequency value that
was selected.
  The Agency points out that the
considerations leading to the use of 100
to represent the model-predicted
dilution/attenuation factors are unique
to today's promulgation. In other cases,
different conclusions may be more
appropriate. For example, when
parameter values can be more narrowly
defined (as in site-specific evaluations).,
the higher degree of precision may be
appropriately ascribed to the model-
predicted DAFs. Likewise, where the
program goals are different (i.e. other
than to identify levels that are indicative
of wastes that clearly are hazardous),
the selection of a value that represents a
cumulative frequency value other than
the 85th percentile may be warranted.

F. Toxicity Characteristic Leaching
Procedure (TCLP) (Method 1311)
1.Introduction
  The development of the TCLP and the
role of the test in identifying a waste as
hazardous were discussed at length in
the June 1986 proposal (51 FR 21648).
Today, EPA is promulgating  the TCLP,
with some improvements and
modifications, as a replacement to the
EP for use in the identification of
hazardous waste. (The revised TCLP is
promulgated in Appendix n to 40 CFR
part 261 and has been designated as
EPA Method 1311 and will be
incorporated in 'Test Methods for
Evaluating Solid Waste Physical/
Chemical Methods—SW-846".)
  The Agency received numerous
comments in response to the Federal
Register notices (51 FR 1602,51 FR
21648, 51 FR 24856, 51 FR 33297. 51 FR
40593, 51 FR 40643 and 53 FR 18792)
related to the TCLP procedure. In
particular, EPA received close to 140
comments on the application of the
TCLP in response to the June 1986
  * Hie health data is only valid to one order of
magnitude precision and thus may control the total
number of significant figures.
proposal. The comments covered
general issues such as the relationship
to the EP, the adequacy of research
supporting TCLP development and
specifically, the statistical treatment of
data. Commenters also addressed
technical issues including the suitability
of the zero head space extraction (ZHE)
vessel; the types of filters, reagents, and
leaching media: the quality assurance
requirements; and the multiple
extraction and oily waste extraction
procedures. In addition, comments were
received on the use of quantitation
limits for establishing regulatory levels.
All the comments were categorized and
summarized by issue and are presented
in the technical background document
along with the Agency's response to
these comments (Ref. 4).
  In this preamble, only certain
comments are discussed, which include
(a) the applicability of the TCLP to
specific types of waste (i.e.. solidified
wastes); (b) the analytical difficulties
encountered during the analysis of the
TCLP extract for phenolic compounds
and phenoxy acid herbicides; and (c) the
use of quantitation limits. The first two
comment issues are presented below
while the last comment and the
Agency's response is given in section
IV.C. of this preamble.
2. Adoption in the LDR Rulemaking and
Modification from the Proposed Rule

  The TCLP was promulgated in
Appendix I to 40 CFR part 268 on
November 7,1986 (51 FR 40593), as part
of the Land Disposal Restrictions Rule
for Solvents and Dioxins. The TCLP  is
used in the Land Disposal Restrictions
(LDR) program to determine whether
certain wastes require treatment prior to
land disposal and to determine whether
certain treated wastes meet the
applicable treatment standards. In
today's rule, the Agency has
incorporated two other clarifications to
the TCLP as proposed on May 24,1988
(53 FR 18792) for use in both the LDR
and the TC programs.
  The Agency modified the proposed
TCLP as a result of the Agency's own
research and comments received on the
January 14,1986 (51 FR 1602) proposal
for the LDR program and the June 13,
1986 (51 FR 21648) proposal for the TC.
These modifications to the TCLP were
promulgated on November 7,1986 for
the LDR program. On May 24,1988, the
Agency proposed additional
modifications to the TCLP for both the
LDR and the TC. In today's rule, the
Agency has adopted two of these
proposed changes, and is promulgating
the revised TCLP for use in both the
LDR and TC programs.

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11828     Federal Register / VoL 55. No. 61 / Thursday. March 29, 1990 / Rules and Regulations
  The first change is the insertion of a
more detailed method flow chart to
explain how analysts are to perform the
test Comments expressed confusion
regarding the original flow chart (e.g.,
that it was difficult to follow), so the
Agency has added this new chart to
eliminate confusion. The second change
is the addition of new equipment
suppliers to provide more information
on the availability of suitable testing
equipment. The new equipment
suppliers include two manufacturers of
rotary agitation devices,. Environmental
Machine and Design, Inc., of Lynchburg,
VA, and Millipore Corporation of
Bedford, MA; two manufacturers of a -
zero-headspace extractor (ZHE) vessel,
Lars Lande of Whitmore Lake, MI and
Environmental Machine and Design,
Inc., of Lynchburg, VA; and three
manufacturers of filter media, Millipore
Corporation of Bedford, MA; Nucleopore
Corporation of Pleasanton, CA; and
Micro Filtration Systems of Dublin, CA.
These manufacturers are listed in
Tables 2. 3, and 5. respectively, of the
method (i.e., Appendix D of 40 CFR 261).
along with company telephone numbers
and equipment mode! numbers.
  Another more substantial proposed
modification, the addition of a stainless
steel cage insert to the bottle extractor,
will not be added by the Agency at this
time for the reasons discussed below.
The Agency had proposed this   .....
modification to eliminate the    .  . ;  '
requirement  for particle size  reduction
for certain types of -wastes (e.g.,
solidified materials).

3. Applicability of TCLP to Solidified
Wastes
Some commentets
                       ssed
                ts express
reservations regarding the applicability
of the TCLP to specific types of wastes.
The wastes of concern were solidified
wastes. Numerous commentero      . •• •
supported the reinstatement of the
structural integrity procedure [SIP} or
some other stability criterion/or
solidified wastes. They argued that
particle size reduction tLe.. "grinding")
would be inappropriate in those
instances where solidification of the
waste is needed to meet the-best     " '.
demonstrated available technology
(BDAT) provisions of the law and that
grinding may not adequately represent
the weathering process or the effect of
vehicular traffic. Commenters        ,.
recommended that the Agency retain the
SIP. Others agreed that particle size
reduction is inappropriate for stabilized
monolithic wastes and produces
unrepresentative results~SpecificaIIy,
commenters stated that particle size
reduction alters the physical-character
of many solidified wastes by destroying
 the cementitious property of these
 wastes in such a way that the leaching
 rate increases unrealistically. By
 increasing the surface area that is
 available to attack by a leaching
 medium, the amount and rate at which
 substances may be leached increases.
 Inasmuch as waste grinding is not
 normally employed in municipal
 landfills, particle size reduction renders
 the TCLP a less accurate model of
 leaching in a municipal landfill
 environment
   Since the June 13,1988, proposal the
 Agency has reviewed the use of the SIP,
 which uses a drop-hammer to test the
 integrity of the waste and to reduce its
 size if it fractures. The Agency found
 that although the SIP may simulate the
 potential of a monolithic waste to be
 degraded by vehicular traffic on a
 landfill, it cannot address certain other
 stresses acting on the waste (e.g., wet-
 dry and freeze-thaw cycles). In addition,
 the SIP can only be used for wastes that
 can be prepared in a sample of specified
 dimensions.
   While evaluating the use of the SIP.
 the Agency found that dense, hard
 materials would occasionally break the
 glass extractor bottle. To prevent
 breakage of the bottles, the Agency
 developed a cage insert for the extractor
 bottle. Xbe cage, which is designed to
 prevent contact between the .hard
 sample and the sides of the bottle, is
 constructed of 0.25-inch stainless steel
 woven mesh. Experiments have shown
 that the use of the cage prevents bottle
 breakage.
   While evaluating the utility of the
 cage, the Agency noticed that wastes
 that were believed to be well-solidified
 retained their monolithic nature in the
 cage during extraction, whereas wastes
 that were believed to be less well-
 stabilized (even though some of them
 had passed the SIP) were broken  into
 small pieces during the extraction. Thus,
 these experiments led io the proposed
 use of the stainless steel wire cage in the
 extraction apparatus {53 FR 28792, May
 24,1988). The use of this device, the
 Agency believed, tested the physical
 integrity of-the sample and reduces
 particle size appropriately,    •     ;
__  Commenters expressed support for
 the cage modification—that it is a step
 in the appropriate direction toward a
 more realistic  assessment of the
 environmental leaching potential  of a
 solidified waste. However, commenters
 also had concerns thai the cage was
 proposed prematurely—that not enough
 evaluation of waste samples using the
 cage-had been done. Specifically,
 commenters argued that the cage could
 possibly leach significant quantities of
                                                                           nickel and chromium to contaminate
                                                                           metals analysis; that it would be
                                                                           difficult to collect representative
                                                                           samples in some cases; that there were
                                                                           problems with the configuration of the
                                                                           cage so that it could not .be
                                                                           accommodated to fit a large array of
                                                                           bottles; that the cage's construction
                                                                           provided numerous crevices and a
                                                                           significant amount of surface area for
                                                                           waste residue to collect, making
                                                                           effective cage cleaning difficult, and that
                                                                           solidified samples could be molded into
                                                                           a shape that would causeless material
                                                                           to be sloughed off during extraction.
                                                                           leading to a less aggressive test The
                                                                           Agency agrees with these commenters
                                                                           and has decided not to go forward-with
                                                                           the cage modification at this time. The
                                                                           Agency cnrrentfy has work underway to
                                                                           evaluate aO these concerns, and will
                                                                           continue to evaluate modifications of
                                                                           the TCLP and will propose further
                                                                           improvements as they are developed.

                                                                           4. Analytical Methods
                                                                             Several i
             merits addressed (he
analytical difficulties of analyzing the
TCLP extract for phenolic cuuipuuudu  .
and phenoxy acid herbicides by gas
chromatography/mass spectroscopy,
SW-646 Method 8250 (GC/MS). These
analytical difficulties include the
interference of the acetate ion .in the
TCLP leach fluid with the column
packing material of Method 8250.    ""*
Removal of the acetate ion is often
difficult, and equipment damage may" '
result if the acetate is not removed (Le-
the acetate ion can destroy the column
packing material).          .. -. -• j.... /:
  The Agency agrees that analysis-far"
acidic compounds by GC methods may
be difficult, but not impossible. The
Agency suggests the use of a bonded-
phase capillary column (Method 8270) to
reduce the interference from acetate. In
addition, the Agency is investigating
other methods for removal of the acetate
ion from the extract before analysis for
the phenolics and herbicide and' • --—-
welcomes alternative suggestions,   '••'•
especially when accompanied by    ' •"'
supporting data.      	....::.•:.:;
  The Agency had suggested (he use of
HPLC as an  alternative to GC/MS-	
analysis of nhpnnlira and phenoxy acid
herbicides. However, several   • •' •• ^ '<"-'
commenters believed that an HPLC
method is generally regarded as more
expensive .and not as readily available
as GC/MS. In addition, some
commenters indicated  that GC/MS Is a
better method analytically than HPLC.
and that HPLC would be more difficult
to implement.'Thecommenters'-'" '—'••"• •
expressed that at the very least a
lengthy verification process would "be

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           Federal Register / Vol. 55. No. 61 / Thursday. March  29. 1990 / Rules and Regulations     11829
required to determine an HPLC method's
ruggedness and reproducibility and to
determine the most effective cleanup
steps. The commenters further suggested
that even if an effective HPLC cleanup
procedure is developed and approved by
the Agency, it is bound to increase the
analytical costs and slow down the
analytical throughput. Even without
considering this restriction, the
procedure of leaching the organics into
an aqueous medium, followed by
extraction, recovery, and concentration,
is bound to require more manpower and
thus more money than a more direct
solvent extraction of the solid itself. The
commenters indicated that methods for
analyzing solid waste for semi-volatile
organics and phenoxyacid herbicides
are already described in SW-846 and
should be the preferred methods, both
for practicality and as a way of
providing a reliable test
  The Agency agrees that the GC/MS or
GC/electron capture (GC/EC) analysis
is more advantageous for the  analysis of
phenolics and phenoxy add herbicides
because the equipment is more readily
and widely available than HPLC,
despite the associated difficulties. HPLC
methods for phenolic compounds are not
included in the third edition of SW-846
because of a lack of validation data. The
Agency will allow only the use of the
GC/MS method until such time that the
Agency proposes an HPLC method.
G. Testing and Recordkeeping      -
Requirements       .      :  .•- ••••-.•
1. Existing Requirements for Generators
  Under existing regulations, persons
who generate solid waste are not
specifically required to test their wastes
to determine whether they exhibit the
characteristic of EP toxicity or any other
characteristic. Instead, solid waste
generators are required to make a
determination as to whether or not their
wastes are hazardous (40 CFR 262.11).
  If a waste  is found to be excluded
from regulation under § 261.4, or if it is
found to be a listed hazardous waste
under subpart D of 40 CFR part 261, no
further determination of hazardousness
is necessary. On the other hand, if a
waste is neither excluded nor listed, the
solid waste generator must determine
whether it exhibits any of the hazardous
waste characteristics in subpart C of 40
CFR part 261. This determination may
be made by either testing the waste or
applying knowledge of the waste, the
raw materials, and the processes' used in
its generation.
  If a waste is determined to  be
hazardous, the generator must keep
records establishing the basis for that
determination (40 CFR 262.40(c)). These
records must be maintained for at least
3 years after the generator-no longer
handles the waste in question. Neither
of these recordkeeping requirements,
however, applies to solid waste
generators who do not generate
hazardous wastes.
  Other provisions in the hazardous
waste regulations make generators
responsible for knowing the properties
of their wastes and for documenting that
knowledge. For example, generators
who declare that their wastes are
hazardous must nevertheless have
sufficient knowledge of their wastes to
complete the Uniform Hazardous Waste
Manifest,-to use proper labels,
containers, and placards, and to satisfy
all applicable reporting and
recordkeeping requirements (see 45 FR
12728. February 26,1980). In addition, all
generators of hazardous waste are
required under 40 CFR part 268 to
determine whether their wastes are
restricted from land disposal.
2. Changes Considered
  In the June 13,1986 proposal, EPA
expressed concern that the current
system for determining whether a solid
waste is hazardous may be inadequate
to ensure that wastes are characterized
properly as hazardous or nonhazardous.
Because of the importance of accurate
hazard determinations to the RCRA
subtitle C program, the Agency
discussed the possibility of requiring
solid waste generators to test their
wastes periodically.
  In the proposed rule, EPA identified
three general approaches that might be
adopted in the TC final rule. In the Grst
approach, the Agency would retain the
current approach, allowing generators to
rely on their knowledge of materials and
processes used in generating wastes as
a basis for their determination. In the
second approach, EPA would require the
testing .of wastes, at a frequency
specified by regulation. Finally, in the
third approach, the Agency would
require testing but without specifying a
particular testing frequency. Under this
third approach, generators would be
required to develop an appropriate
testing frequency, based on Agency
guidance, and to document the basis for
their choice.
  Commenters were heavily divided on
the issue of testing and recordkeeping
requirements. Many commenters.
including waste management firms and
a few generators, favored mandatory
testing of solid wastes. Most of these
commenters argued that generators
typically lack sufficient information to
determine accurately the composition of
their wastes without testing. Indeed, one
commenter claimed that with 52
constituents regulated at the part-per-
million level or lower, a generator could
never be sure whether a waste exhibits
the TC without performing the TCLP
test. The commenters concluded that
testing is the only reliable method for
ensuring that potentially hazardous
wastes are properly identified and
managed.
  A few commenters  offered somewhat
different reasons for supporting testing
requirements. For example, some
commenters pointed out that mandatory
testing would facilitate EPA
enforcement efforts. Others claimed that
mandatory testing would reduce
uncertainty by making it clear to
generators precisely what EPA expects
of them with respect to performing
hazardous waste determinations.
  Another group of commenters,
however, opposed the imposition of a
formal testing requirement These
commenters argued that mandatory
testing would place an inordinate
burden on the regulated community
without providing significant benefit for
human health and the environment. In
particular, the commenters claimed that
mandatory testing is unlikely to identify
wastes that were improperly
characterized as nonhazardous when
generators relied exclusively on their
knowledge. According to these •-
commenters, generators rely on their
knowledge only when the wastes they
produce are clearly hazardous.or clearly
nonhazardous. Whenever, uncertainty
exists, these commenters stated.
generators either declare their wastes
hazardous or perform appropriate tests.
The comraenters emphasized that this
cautioned response results from
generators' liability for making incorrect
determinations, regardless of whether
they test their wastes. The commenters
concluded that requiring testing of all
wastes would deplete resources and
place a strain on limited laboratory
capacity.
  The Agency recognizes that there are
many difficult issues  related to the
imposition of a testing requirement, both
for the Toxicity Characteristic and the
other hazardous waste characteristics.
While the Agency believes that a testing
requirement could improve the Agency's
enforcement tools, the Agency believes
that the current requirements for
hazardous waste determinations are not
ineffective because many generators do
have sufficient knowledge to make a
determination without a test. The
Agency further believes that liability for
incorrect determinations provides a
strong incentive for not misciassifying
hazardous wastes as non-hazardous.
Although EPA thinks that the current

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11830     Federal Register  /  Vol.  55. No.  61 / Thursday,  March 29. 1990 / Rules and Regulations
system set forth in 40 CFR 262.11 is
effective, the Agency believes that
imposing a testing requirement does
have some merit, in that it could
increase the accuracy of determinations,
could clarify the responsibilities of
generators, and could facilitate
compliance monitoring.    .....
  The Agency will continue to evaluate
the comments on this issue as well as
explore other options for a testing
requirement. At present, however, the
Agency is not yet ready to go forward .'
with a testing requirement based on any
of the options it has evaluated thus far.
Should the Agency decide that an  ,'..". "I
appropriate approach is  available, it will
propose and solicit comment upon the
details of that approach in a separate
rulemaking. In the meantime, the   ".'"".
Agency believes that the existing
determination requirement (as specified
at 40 CFR 262.11), as well as the liability
for incorrect determinations, is effective
and practical.            .-.••-':,.-......

H. Applicability to Wastes Managed in  -
Surface Impoundments    ,.'•..:-••_.•.••;
  As discussed above, in response to '•'  '•
the proposed TC, EPA received many
comments questioning the validity of "•'••••••
applying the TC to wastes, including
wastewatera. likely to be managed in
surface impoundments. In response to
commenters' concerns, on May 18,1987,
EPA published a Supplemental Notice of
Proposed Rulemaking in the Federal '•'"-••'••'*
Register, which requested comments
and data on several issues related to the
regulation of wastes managed in surface
impoundments under the TC rule. The -
Agency also requested comment '  T:..; ;
(assuming such an approach) on: (1) The
criteria to be used to determine whether
the surface impoundment scenario .•••••-!
should apply to a particular waste, (2)
the point at which concentration '  '
measurements should be made (e.g., at
the point of generation or within the
impoundment), and (3) how multiple
surface impoundments should be
handled under the TC rule.    ~.V-  • . • '•'
  Comments received in response to the
notice concerning the surface:  : ._,'.,..-.>.;.  ..
impoundment management .scenario are
summarized and addressed in section
HI.A.2.C. Comments received in response
to the notice, which addressed sampling
point and multiple impoundment issues,
are discussed below.   ..*: );::i::.;o •  . :.
1. Sampling Point      ' "'
  In the May 18.1987 notice, EPA .....
requested comments on whether  .,..-- 7: •••
evaluations of wastes managed in     . ...
surface impoundments should be based
on measurements of the concentration in
the impoundment or at the inlet to the
impoundment. In response, .some ...;.-.•-,.
commenters supported sampling at the .
inlet to the impoundment and stated that
sampling the waste within the
impoundment is not only contrary to
Congressional intent, but conflicts with  .
EPA's own regulations that require the
determination of hazard to be made at
the point of generation.
  Other commenters, however, argued
that wastes should be sampled within
the impoundment or that the
impoundment effluent should be
sampled. Many of these commenters
argued that measuring the
concentrations in the impoundment:
more accurately represents the
concentrations of hazardous   '  '
constituents that pose a threat to ground
water. Some commenters argued that
evaluation of hazard should be based on
impoundment effluent because
concentrations of the wastewatera
within the impoundment are
approximately the same as the
concentrations in the impoundment
effluent.
  If the Agency were to allow persons
to make their determinations on the
waste in the impoundment it would
raise questions that the Agency haa not
yet evaluated completely nor taken
comment on. For example, in this    "' :"
situation, should the Agency actually
require testing; if so, how often and    •-'•
what should be tested? Would such a  ' "
result allow persons to land dispose of
wastes that (but for the point of hazard
determination) would be hazardous,
contrary to Congressional intent? Would
such a result allow persons to treat      '"'
wastes without a permit and thus be
inconsistent with Congressional intent?
EPA concedes that, for some activities
(e.g., closure), leachate quality may be
more appropriately assessed by '   '•   . -
measuring concentrations at multiple
sites within the impoundment.
  The current rules require that the
determination of whether a waste is
hazardous be made at the point of      .
generation (i.e., when the waste      :  .
becomes a solid waste). (A waste must
be a solid waste before it can be   •,-,.., ^ •,
classified as a hazardous waste under
RCRA.) EPA believes that determination
of the regulatory status of a waste at the
point of generation continues to be
appropriate, especially since the Agency
is not developing a separate  .--••-,•
mismanagement scenario or set of
regulatory levels for wastewatera. To be
consistent with other hazardous waste
regulations and until the Agency
addresses the above questions, EPA is  :
retaining the existing approach of  .... <••_• [•
requiring sampling at the point of    ,..-..••
generation.    ..  .;,.u ^j^u,-:.. .-..  :•..,
2. Multiple Surface Impoundments
  In the May 18,1987 notice. EPA
requested comment on how multiple
surface impoundments or "treatment
trains" should be handled under the TC
rule. Some commenters favored
regulating all surface impoundments in a
treatment train as a single unit—if the
first impoundment treats a hazardous
waste, all impoundments would be
required to comply with the RCRA
regulations for hazardous waste ..   :
treatment facilities. Other commenters,
however, suggested that each
impoundment should be regulated   '    •
individually. Still other commenters •   . „'
stated that owners and operators should
be required to determine whether the
most upstream surface impoundment is
treating wastes that exhibit the TC  but
they should only be required to evaluate
downstream impoundments if an
upstream impoundment exhibits the TC.
  As discussed above, the Agency has
decided not to develop a separate
regulatory scheme for surface
impoundments. Thus, the Agency will  '
continue to regulate all surface
impoundments as individual units and
will not pursue any of the other options
discussed by commenters. Currently,
under 40 CFR part 261, each surface
impoundment in a series of multiple
surface impoundments is regulated.1.    ,
separately. If a surface impoundment  "
receives or generates a hazardous
waste, the owner or operator of the
impoundment is required to comply with
the RCRA regulations governing.     -:
hazardous waste treatment, storage, and
disposal facilities. On the other hand, if
a downstream impoundment is not
treating or generating a     .-'.....
characteristically hazardous waste and
upstream units have not managed, listed
wastes, then the downstream unit is not
subject to RCRA subtitle C
requirements.      • ••
/. Relationship to Other RCRA  „...'..' ,
Regulations           . • •    •,;..	
1. Hazardous Waste Identification
Regulations
  a. Hazardous Waste Listings. Under
the June 13,1986, proposal, the
hazardous waste listings in subpart D  of
40 CFR part 261 would not be affected.
All the listings would remain in effect,
including those listings that were based
on the presence of TC constituents.  It is
EPA's intention that the hazardous
waste listings would continue  to •_ ..
complement the revised TC as they  had
theEPTC.       ...  .--..,....-.  ..;;•-;....-,  ..
  A number of commenters, however,
argued that the TC should.supersede •  . .
certain hazardous waste listings. In.

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            Federal Register /  Vol. 55.  No. 61  /  Thursday, March 29. 1990 / Rules and Regulations
particular, they suggested that the TC
should be the only basis for regulating
wastes that have been identified as
hazardous solely .because of the
presence of a TC constituent. Such an
approach, according to the commenters,
would establish a more rational basis
for identifying hazardous wastes.
Wastes failing the TC test would be
regulated as hazardous wastes, whether
or not they have previously been listed.
because they have demonstrated the
potential to pose a threat to human
health and the environment. Wastes
passing the TC test, in contrast, would
not be subject to subtitle C regulation.
The conunenters claimed that, by
definition, if the extract from a waste
that was  listed because of the presence
of a TC constituent does not contain  the
constituent in a concentration greater
than or equal to the regulatory level  the
waste can safely be managed at a
subtitle D facility.
  EPA does not agree that the TC
revisions justify elimination of any of
the hazardous waste listings. The
Agency has consistently maintained  that
individual waste streams may be listed
regardless of whether the waste is     :'-
defined as hazardous by the TC.
Exhibiting a characteristic can    ' ''r •;
constitute the basis for listing a waste.
In fact, prior to today's action,    '•-'''- '"-'•
approximately 25 listings were based on
the presence of metals or pesticides
covered by the EPTC.      ;; i^3'-l.-rj-;..
  There are a number of reasons.for
continuing this approach. First, listed
wastes frequently contain hazardous
constituents other than the ones cited in
Appendix VII of 40 CFR part 261 as the
basis for  the listings. It is for this reason
that Congress directed EPA, in  '  - '-'   •
evaluatingdelistingpetitions, to- • -'-'-••••
consider constituents other than those
for which the wastes .were listed,   •'••'-'-•'
assuming that there is a reasonable
basis to believe that such constituents
might render the wastes hazardous (see
RCRA section 3001(f)). In many cases.
the additional hazardous constituents
that are present hi a waste may not be .
on the list of TC constituents. The  .  -. vs i
listings may therefore serve to identify
wastes that pass the TC test but are    .!
nevertheless hazardous. Removing.
wastes from a hazardous waste listing
without an evaluation of additional    . //•
constituents would appear to be   .     ;
inconsistent with the intent of section
3001(1).   .•;•;>.-; v;ii.., ,v -:'.L -"it ;:-,;:•.••••:
  Another reason for retaining the   ..:..*
hazardous waste listings is that TC/:  •"
constituents may continue to pose a
threat to  human health and the•i.-.nqini;:;"
environment even when they are       • :
present in concentrations tower than the
regulatory levels. The regulatory levels
have not been designed to address the
problems of phytotoxicity, aquatic
toxicity, or bioaccumulation potential
Moreover, they have not been designed
to identify the full range of wastes that
may be toxic to human beings. Instead.
the characteristic levels have been
established at concentrations where
there is a high degree of certainty that
any wastes with constituents at levels
equal to or exceeding the regulatory
levels pose a potential threat to human
health. Individual wastes may continue
to be hazardous, despite the fact that
they may contain TC constituents in
concentrations below the regulatory
levels. This is particularly true for
wastes that have the potential to be
exposed to more aggressive leaching
conditions than those modelediin the
TCLP. As a result. EPA believes that
wastes previously listed as hazardous
should continue to be considered
hazardous, whether or not they exhibit
the characteristic.                ....
  b* "Mixture"and "DerivedFrom"
Rales. Because the TC will not
supersede the listings for hazardous
wastes, it also will not affect the
regulatory status of wastes that are
hazardous by virtue of the "mixture"
rule of 40 CFR 262.3(a)(2)(iv) or the
"derived from" rule of 40 CFR 261.3(c),
The "mixture" rule provides that any
mixture of a listed hazardous waste and
a solid waste is itself a RCRA hazardous
waste.9 The "derived from" rule states
that any waste derived from the	;„.•/
treatment, storage, or disposal of a listed
hazardous waste is hazardous.   .••••-•- ••;
  Several conunenters contended that
the current regulatory scheme -..  ..<.-'•
encompasses wastes that contain de
minimi's quantities of leachable organic
chemicals. The conunenters.;. .:;-:.. it-iris
acknowledged that mixtures and     :^b
treatment residues posing insignificant
threats to human health and the    :  ..:
environment may be excluded from
regulation through the delisting process.
However, they claimed that delisting is
unduly expensive, time-consuming., and..
in some cases* impractical. The,...,,i .v>
commenters suggested as aa alternative -
that mixtures and treatment residues  - :-•,
from listed wastes containing  TCLP . .,,2
constituents not be considered     - ••••
hazardous unless they fail the TC test.
They contended  that this approach
would adequately protect human health
and the environment. Moreover, it  ,   . .
  •Tha exception to this rule i* a mixture of solid  •
waste and a watte (bat is listed tofely because h  -
exhibits a characteristic of hazardous waste. If inch
a mixture does not exhibit any characterfsne of
hazardous waste, the mixture is not defined as  " • "'
hazardous (40 CH< »13(aH2)fUi)J_.-  ...-.v:-::j-- .-;
would be "self-implementing." in the
sense that it would eliminate the need
for the current process of petitions and
Agency review for delisting.
  EPA recognizes that the "mixture"
and "derived from" rules may create
some inequities by including wastes that •
contain very small amounts of
hazardous wastes that have been mixed i
so as to render them nonhazardous.
However, the Agency has consistently
maintained that the mixture and derived
from rules are an appropriate regulatory
approach for dealing with waste
mixtures and treatment residues.
  When the rules were promulgated in
1980. EPA stated that it was essential to
regulate waste mixtures to prevent
generators from evading subtitle C
requirements by simply co-mingling
listed wastes with nonhazardous
wastes. The Agency also determined
that because of the infinite, potential
combinations of b'sted wastes and other
wastes, it was unable at thai time to
devise any workable, broadly applicable
formula that was capable of *'  • :
distinguishing between hazardous and
nonhazardous mixtures. The Agency
acknowledged that the "mixture" rule
might be overly broad, but noted that
generators could avoid any inequities
either by segregating their wastes or by
obtaining a waste-specific exclusion
under the delisting program (see 45 PR
33095, May 19,1980).   ::'^i?«'
  EPA also believed that it was: *  :"'• '••'•'-
important to regulate wastes from  the
treatment, storage, or disposal of listed
hazardous wastes on the basiff that
these "derived from" wastes might
themselves be hazardous. Once again,
however, the Agency found that because
of the large number of listed wastes and
treatment processes (some of which
introduce new hazardous constituents
into the treatment residues),-!! was
unable to prescribe standards that could
properly distinguish between hazardous
and nonhazardous residues. (It should
be noted that the definition of treatment
is not confined to rendering a waste
non-hazardous, but also includes any
method designed to change the nature of
a waste to render the waste (I) less     •
hazardous; (2) safer to transport; store.
or dispose; (3) amenable for recovery: or
(4) reduced in volume (see 4O CFR
260.10).) Therefore, the Agency    -    •
concluded that wastes generated during
the treatment of listed wastes should be
presumed to be hazardous. Delisting
was provided as the mechanism -for •;   '
excluding these wastes from subtitle C
regulation (45 FR 33098, May 18.~1980J.
  EPA Is sympathetic to the :?~p3  ;vs.-i«f.
commentero' concerns regarding use of
delisting to exclude wastes that are

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11832      Federal Register  /  Vol. 55. No. 61 / Thursday, March 29. 1990 / Rules and Regulations
 hazardous under the "mixture" and'...  -
 "derived from" rules. The Agency does
 not believe, however, that the :  . ...
 alternative suggested by the.-.   • v-.-••-.;
 commenters (i.e., relying on the TC to >
 regulate mixtures and treatment     ...
 residues) would adequately protect
 human health and the environment. As
 noted above, wastes that pass the—
 characteristic test may nevertheless be
 hazardous, either because they contain
 listed constituents at concentrations.
 below the TC regulatory levels but at  .
 levels and under circumstances that  •  .
 nevertheless render the waste  . ..r^j^-j-
 hazardous or because they contain
 hazardous constituents that are not
 covered by the TC rule. As noted above,
 the TC regulatory levels are not  . - i:-.  ?
 threshold levels defining all hazardous
 waste, but are levels that are set to;    ;.
 clearly define hazardous waste. Wastes
 containing constituents failing below
 these levels may still present a hazard in
 more limited situations.•_ ;=-« i; ,;"?;g,-/;
  Nevertheless, the Agency recognizes
 that some inequities may result by the
 application of the "mixture" and ,;.«,:;*;;,
 "derived from" rules to certain dilute   :
 listed wastes. The Agency therefore is
.considering proposing an amendment to:
 the definition of hazardous waste which;
 would establish self-implementing de. . -
 minimis exemption levels.for hazardous-
 constituents found in listed wastes.:  '.•*«
 Listed wastes that meet these exemption;
 levels would no longer be listed,, Aqa
 hazardous wastes and thus would not -.
 need to be managed as hazardous:.;;-^'
 wastes unless they exhibit.a hazardous ,~.
 waste characteristic.   3 b-r"-"": ib" •>'?2"'
  c. Mixture Rule Exemption. The i-.-,-,•.:::
 mixture rule under 40 CFR261.3(a)(2)(iv)
 provides an exemption from RCRA ••.-; <»
 subtitle C regulation for mixtures of.: --i
 wastewaters and certain listed spent  :-i
 solvents. The mixture rule exemption is
 applicable only if the maximum weekly
 usage of the solvents (other than, 7100-;:;
 solvents that can be demonstrated not
 to be discharged to wastewater) divided
 by the average weekly flow of.:.-.1:3 hw ei
 wastewater does not exceed specified  .
 values. The mixture rule [exemption does:
 not apply to wastewaters that exhibit a .
 characteristic of hazardous waste or to •
 wastewaters that  contain.listed  -;*'& -o
 hazardous wastes not specified in the  •
 mixture rule exemption^ •..•'; si a rf r |.tfi; i>.«;:
  A number of commenters claimed that •
 the proposed TC conflicts with the
 mixture rule exemption. The ••: bamuas-.q
 commenters noted that the mixture rule
 exemption levels are higher than the :  • 3
 corresponding TC regulatory levels for
 solvent constituents. Because of this  ^
 difference in regulatory levels, the •  • • ••
 commenters stated that the .proposed TC
rule will bring large quantities of
currently exempted wastewaters into '
the hazardous waste management • -   •
system.-In effect, the commenters argued
that the TC rule will revoke the mixture "
rule exemption. Commenters    -:
disapproved of this result, stating that
the mixture rule exemption was
promulgated in recognition that small
amounts of certain spent solvents are
often most efficiently managed by being
discharged to a plant's wastewater
treatment system and that this method
of management does not pose risks to'
human health and the environment    •
  EPA acknowledges that the TC rule
may bring some currently exempted
wastewaters into the subtitle C'• •••-•
regulatory system; however; the mixture
rule exemption is an exemption from the-
hazardous waste listings, notthe    • '•'•'>
characteristics; Thus, there is no-   '"-'"3V
inconsistency between this rule and the
mixture rule exemption. In addition, it
should be noted that the TC regulatory  '
levels are based on state-of-the-art     •
toxicological data and risk assessment
methodologies. Consequently, EPA
believes that the TC regulatory:levels   ;
are the best measures available to    -'"
identify wastewater mixtures that pose
a threat to human health'and the -'--'^^
environment. In contrast,'the mixture ;  '
rule exemption levels are based upon
less current rislr Information:"' '*j»n" «ia'I
  Even though some wastewaters'" : ::;
presently covered by the mixture 'rule
exemption will become hazardous
wastes as a result of the TC rule, EPA
believes that thfr exemption will" '•;'"! °3 li
continue to serve an important purpose ^
by ensuring that mixtures of'•'   ••-•- • ••'•
wastewaters and certain listed spent  " •
solvents will not be considered^-""-/1 *
hazardous unless they exhibit a- ^in1.^
characteristic of hazardous waste.'To '"•'"
clarify the mixture rule'exemption arid" '•
make it more consistent with current
risk information,' EPA is considering •"  "'
proposing in the future that the mixture "v
rule exemption levels be reduced so that
they are equivalent to the TC regulatory
Ievel8..:;-iraij«no3-8suj (Oviaaaqxa VKJUIUJ
  dDelist/tij. vVhilethe7uriel351986- ri
proposal did not specifically address the
effect that the TC might have bn the - !l
hazardous waste delisting program: '••n-
under 40 CFR 260.22. a number of  lvu~ •
comments were received claiming that
the TC rule would be inconsistent with-
existing EPA policies regarding case-by-
case exclusions. In the August 1,1988
proposal, however, the Agency solicited
comment on the toe of the EPACMJL
model in the delisting program:. »•-!»_;••«••••
 "The, commenters noted that ea'cn .*" !'.';'„,**
major element oT the delisting program
is different from the corresponding •  .  ••••••
element hi the original TC proposal. For
example, the chronic toxicity reference
levels that are used to establish "no ••'  ''
hazard" levels under the delisting
program appear to differ from the levels'
that were used to establish the proposed
TC regulatory standards. In addition, the
delisting program uses (as appropriate)
a different ground water transport
model (i.e., the Vertical  and Horizontal
Spread (VHS) Model), which generates
generic DATs rather than compound-   ^
specific factors. Finally, the delisting   .
program employs (as appropriate] the  '
Organic Leachate Model (OLM) rather  !
than the EP or the TCLP to determine _'.' '.'
the degree to which various organic
constituents are likely to leach from- .   .
solid wastes.' The commenters urged the'
Agency to use the same reference levels.
DAFs, and leaching procedures in both j
the characteristic and delisting     ).^.,:
programs. A few commenters expressed .
a particular preference for adopting the
delisting elements as part of the revised ..
      •      •   • •      •  • v ' '-'  • v ' '  ' '
              _        .,      .       .
  There were a number of differences •;,
between the various elements of the  _.,(
proposed TC and the corresponding^;, ;n
elements in the delisting program:    ."• -,{•,
However, regarding Chronic Toxicity,. >_j
Reference Levels, the only difference, r;.~
between the levels used in the delisting
program and those in the TC final rule is.
the use of different risk levels for the- • .-.i
carcinogens (i.e., delisting uses a more  .
conservative risk factor of 10~8 for, ,t;T
carcinogens, compared to the use of a  •
10-»risk factor in the TC rule),Many.pf . .
the differences between the chronip^noD
toxicity reference levels used in the TG
rule and those in the delisting program,-..
have been eliminated as a result of.)  ;,-;rtj
decisions concerning risk levels and ;;;->-.)
apportionment Furthermore, the health-
based levels used in the delisting :;i,v ioi
program and in the TC rule have-been ; -
updated to incorporate recent Agency. •:
evaluations (see 53 FR 18024). ;L -91 Jd^ira
  EPA believes that the'risk factors' <7" •"•'
being used for each program are ' • ->^>B '"'•'
appropriate, and does not think that risk '
levels used to set regulatory levels K^ no
should necessarily be the same in fte; '•?•*
two programs because each serves a ;;--:-"J
separate purpose. Delisting evaluates r"
the hazard posed by specific individual
waatestreams that have been listed as
hazardous. Characteristics identify   ••'-•'
broad classes of clearly hazardous- ~   •'
wastes; specific wastes that may pose a
substantial identified hazard in a lower
risk range may be listed as hazardous.  <
As discussed below, EPA believes it' Is'
appropriate that the delisting program is,
in certain cases.'more stringenT than the '
characteristic program: ....... " •' ••' ? v-v- -

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           Federal Register / VoL 55. No. 61  /  Thursday. March 29, 1990 / Rules and Regulations     11833
  A number of commenten focused on
the overall stringency of the-  •..'-,-.;>; •.--••
characteristic and delisting programs. In
particular, the cammenters stated that
the proposed TC regulatory levels were
sometimes greater than and sometimes  .
less than the concentration standards
used by the Agency's delisting program
in determining when listed wastes- may •
properly be managed in subtitle!)'"'"  ••'•
facilities. Most of the commenters -•.„..,:•
argued that EPA, in the interest of
consistency,, should adopt the same . _ .-
concentration standards under the  ;, :.,
characteristiaand delisting programs.  .,
Other conuhenters,however< UTr-ged the :
Agency to establish higher  .,-,„ /,'jjo;,: s
  characteristic programs, in the August 1.
  198ft Federal Register notice, the Agency
  specifically solicited comment on the •
  use of the Toxidty Characteristics    '..";
  model (EPACML) in place of the model
  currently used in the delisting program
  (the VHS model). All of the commenters
  supported the use of EPACML instead of
  the VHS model in the delisting program.
  although one commenter supported this.
  only if it would not add complexity, and
  thereby increase the time required for .
  delisting petition evaluation. Another   :•
  commenter stated that the EPACML
  model should be used in the deltsling  ,
  program but that petition evaluations. ,  '•
  should not be restricted to the use of any
concentration standards under, the  , i;..:; ^ single specific model Finally, several of
re vised characteristic. The latter group
ef commenters noted that characteristics
are designed to identify broad classes of
solid wastes that are "clearly" ,^^^.1^
hazardous, while listings are designed to
identify wastes that may not exhibit a -^
characteristic, yet ace nevertheless.. , •;.,.<.•
hazardous. The ccunmentera c«nduded!
that, in light of the different functions of
listings and ch?"'qr|t.?r'i?t'rs, it »fip"id frp -,•
more difficult for a waste to pass the  .'?.>
delisting standardsi (Le, to be eligible for.
delisting) than for the same waste to"
pass the characteristic test..
  EPA does not agree wi'
commenters wl
  the commenters stated that the Agency
  should present details as to how the : r .
  EPACML model would be used for   --.-<
  delisting in a separate Federal Register
  notice.   -.-.—•. v:. .-..-. :_;,,,..,,,. ••--•;•-
    In response to these comments, the.
  Agency-will use the EPACML model and
.;. the TCLP in the debating program-. Also.
  as suggested, the Agency will explain  "
,-; how the model and the TCLP will be r •
•} used in a furore Federal Register notice.
: j   A few-Gommenters expressed concern •
,:; about the applicability of the TC to   '- .-
•^ wastes that have previously been  a-.rtsi;
•r. delisted. The commenfers argued that
                                                                           :. 2. Land Disposal Restrictions

                                                                               a. Risk Levels and Frequency Interval.
                                                                           :•• The approach used to develop
                                                                             regulatory.levels in the proposed TC
                                                                             rule was similar to the original approach
                                                                             suggested for developing treatment
                                                                             standards in the proposed Land
                                                                             Disposal Restrictions (LDR) rule {51 FR
                                                                           . 1602, January 14.1986). Both proposals
                                                                             began with health-based concentration
                                                                            • thresholds at the point of exposure and
                                                                           .-, used subsurface fate and transport
                                                                             models to back-calculate allowable
                                                                            ' constituent concentrations in'the.
                                                                           - leachate.In the June 13.1986 TC
                                                                           '.. proposal, the Agency requested      . ;
                                                                           .. comments on whether the risk levels
                                                                            i and cumulative frequency level used in
                                                                           .•4 the TC should be the same as those used
                                                                           .4 to develop the treatment standards in
                                                                           '  the proposedLDR rule.;'..- voj *.•:;  -
                                                                           i   Several commenters supported the use
                                                                           ,-. of different risk levels and cumulative
                                                                           :' r frequency levels in the two proposals.
                                                                           -  These commenters stressed that ,:   .•
                                                                           rr different statutory mandates for the two
                                                                           :jj rules and the entirely different functions
                                                                             of the TC regulatory levels and the LDR
                                                                             treatment standards warranted different
                                                                           : 3 approaches. However, other  • .;> D T -.>-'•
                                                                           w commenters contended that the.  -.>.-.'• :•••••
                                                                           -•> frequency level and risk levels in the TC
                                                                             rule should be the same as or more.
concentration standard* in tbV
characteristic ;and delisting programs or
that the concentration standards for
characteristics must be higher than   ,^
those for defisting. These.programs have
very different purposesVWhile i^f*
hazardous waste characteristic Jevels, . ..'"  especially unfair to aher the regulatory
are mose equal taor^TCwh^i. ;;;^
waste is dearly hazardons due to a ,/.,^
parb'cuTar property, delisting levels, ace;  I
those below which a waste ianqf.,^ -Jff}"f
hazardous. Thus, it is reasbhaDie that
these two levels may or may^not,..,, .,^
coincide. Delis ting decisions afe'Based
on an extensive evaluation of a. ^l:~/
particular waste which requires specific
information on Ae waste: The ' '  • " ^
  once EPA                                  _ . .u~-.u       j-  .u  *ra>
  specific delisting process) that a    -rfJnorff ^mngent than those usedm taeUW
  particular waste stream p«w«»:!» threat •   proposal. Some of these commenters
  to human health and *he environment;  ^.rfgueo «nf I themorestnngenMisfc  .
  the Agency should be barred from using ' ' levels and frequency level in the LDR
  a generic rule to declare the same waste   proposal provided a mqre appropnaU
  as being "clearly" hazardous. One   -n txe **&<* of protection for human health
  commenter claimed that it would be
  managing it has ^been granted an  ^.inr
  exclusion and has acted in relisjice un
  th»* exclusion Je*. by ehangingr the -':
  production process or waste      • <-> •
  management practices); .  ;b
„,  EPA has consistently maintained that
i., wastes "excluded" from subtitle C . . ^-.
  regulation under the delistingrprogram
                                                                                 the environment than the.-
                                                                            .-. corresponding levels and frequency

                                                                           Jft  The issue of consistency of nsk Jevels
                                                                           w. and frequency level for the TCLatid the
                                                                            d LDR program is now moot TheLDR
                                                                            !; final rule (51 FR 4O572, November r,
                                                                            B 1986) abandoned the use of screening
                                                                             levels based on risk methodology and
                                                                            O subsurface fate and transport modebng.
                                                                             and promulgated an approach to
  may nevertheless be haaardouaif they. z- .id establishing treatment standards based
  exhibit a characteristic of hazardous . , ^.jeentirely on technology-based standards
characteristics approach to defining a      exhibit a characteristic of hazardous . , ^.jeentirely on technology-based sta
hazardous waste to much more broad; f- <> waste Csee^CFRiBOaaoWbilftthe.TCCLI expressed as Best Demonstrated
                                                                       "
Only one mismanagement .jceBari«>;, 0   rule will apply toptevmrtalylifelisted "• AlHAvailaWeTechnoIogy (BDAT).tla&ay •*
used and it is based on ??ea«onablB,cW)E waste. EPA does jjot., In general expect : >b rule continues to be based upon healtfa-
worse-case" assiimptibharesufii^a:^ ,j,that such wastes' will become toz«dou« ;, ,: based conceBibation levels a«rdimbon/
"generic"regulatory level to be applied V!J because of application of the revised -:::r.\  ""    "   * ~*~
to all solid waste. And* of course., , r,,Jt, :jr! ;;,TC. The Agency believes that; because
section 260.22 of the RCRA regulations-, ;^deh'sting level* are; more stringent than .
specifies that a waste'nMy riotbe' i-, 7p;""-.?the final TC levels, the impact of the TC
delisted if.it exhibits a. cl^act eristic of [..^i rule on previously delisted wastes will; •
hazardous waste (e^ the-«haiHcteTi8tic; ^be minimal. Nevertheless, if aprerviousty
of EP toxicity]. Thus. the.delisUngl.'i,nJ(^|njdelisted waste exhibits the TCXJt will :  .r«determmarion for all TC wastes within 6
program could never be less stringent , -f,nragain be subject to subtitle C viiesi^nic'-jnmontbs of today's action, as discussed
than the characteristic prflgranuT.Q^g'fj 0{requkements (i.e^ddistedwaBled are - ;zibin the following section/Several '•-•''^•
  In regard to the use g£ differeiat - .fcHr-i! treated no differently Jhan any oAer:;;o3«ibcomnienterff were concerned th'afthe
models in the delisting and, ^ iao7oi£;i' 9;ii8olid" waste).-. «3 y^'^d e-oi.-s.-i/nr.^Lj ^GJLDR. treatment standards that will
                                       ooBttenuation factors, the values for which
                                        :are based upon the predictions of a
                                       n[ subsurface fate and transport jnodei.
                                       "j  b. Treatment Standards for TC-" " " '''
                                       •M Wastes. Under RCRA section 3004(g)(4).
                                        ;EPA is required to make an LDR'

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 11834.     Federal Regis terj/VoL 55, No. 61  /  Thursday. March 29.  1990 / Rules and 'Regulations
 eventually be established iorthe-T&v. i s  the time of enactment of HSWA. the  •
 wastes may be inconsistent with TC      -Agency must make LDR determinations
 regulatory levels. Some of these   . _:^ '_._  according to the schedule set forth in
                                  '   :
                                _
 commenters noted that the proposed .
 LDR treatment standards for listed spent
 solvents were in many ca'ses lower than
 the proposed TC regulatory levels for ";_;
 the identical constituents- in unlisted "
 characteristic wastes. The commenters
 feared that if LDR treatment standards
 are applied to unlisted TC wastes in the
 same manner as they are applied to ';-"3_!;
 similar listed' wastes; the 'characteristic "
 wastes may require treatment to below
 the TC level before subtitle C land   ;';
 disposal is permissible* Thii3 means that
 unlisted wastes no longer exhibiting this
 TC must continue to be managed as -:'K
 hazardous wastes. Some commentera
 who voiced concerns over potential • '  i>
 differences between TC regulatory "':''J
 levels and LDR treatment standards r : -
 suggested that there should be a clear
 continuum of regulatory  levels; with the
 higher standards being those-that deem -
 a waste hazardous in the-flrst place (i.e..
 the TC regulatory levels):;- •::«i^Wna^i
  Wastes deemed hazardous uriderthe
 TC will not immediately become subject
 to the LDR program on the effective date
 of the TC nile, except perhaps by '-:-'--''.:
 operation of the California -Ujter-ins
 restrictions (i.e., halogenated Organic
 compounds are subject to the EDR if ""• -
 they exhibit a characteristic; See 52 'FR";
 25770, July & 1987). However, the  ;:"'-Z'
 Agency has not yet determined whether
                                       RCRA section 3004(g)(4). If EPA fails to
                                       make the determinations by the
                                       established schedule, the wastes are   '
                                       automatically subject to the land
                                       disposal restrictions on the scheduled
                                       date. EPA must also make LDR
                                       determinations for all wastes that are' -
                                       identified or listed as hazardous after
                                       November 1984 (when HSWA was    :'
                                       enacted) within six months after the   :
                                       wastes are identified or listed. "'    "
                                         On November 22, 1989 (54 FR 48372),
                                       EPA proposed treatment standards for '•
                                       those waste's* that exhibit the EPTC, as
                                       well as any of the other characteristics.
                                       Upon the effective date of today's rule,
                                       the TC will include the 14 EPTC " '• r' : ; '-' ••'
                                       constituents in addition to the 25 - ''-'^'.
                                       organics; arid the TCLP will replace the
                                       EF. EPA proposed that the BOAT levels
                                       for wastes that exhibit the EPTC for the
                                       14 constituents remain the same when
                                       the TC becomes effective. By May 8,
                                       19go the Agency will establish the final
                                       BDAT levels for the 14 constituent
                                                                             deadlines (RCRA section 3004(g)(5).
                                                                             "Not later than * * *"). Indeed, other
                                                                             determinations are being made ahead of
                                                                             schedule; the final rule for restricting
                                                                             "second third" wastes includes
                                                                             treatment standards and prohibitions for
                                                                             some "third third" wastes (54 FR 26594).

                                                                             3. RCRA Corrective Action and Closure
                                                                             Requirements-  _ ;:: - ••   . .  ... -.-  .

                                                                               Today's rule will have no direct effect
                                                                             on either the action levels of RCRA
                                                                             corrective action or the cleanup     ;;
                                                                             standards of RCRA closure     :•••-•''•'*"•'
                                                                             requirements. However, to the extent
                                                                             that theTC brings more facilities under
                                                                             the RCRA program as hazardous waste
                                                                             management facilities, additional
                                                                             facilities will be newly subject to the
                                                                             subtitle C corrective action and closure
                                                                             requirements;   "" •'  •' •"  j: V.T".?
                                                                               Although the corrective action  '"'''.  "
                                                                             program under subtitle C addresses
                                                                             remediation of releases of hazardous
                                                                             constituents'from waste at facilities
                                                                             subject to RCRA permitting, the TC '
                                                                             levels will be neither action levels (i.e.,
                                       currently identified by the EPTC Newly
                                       identified TC wastes are subject to the
                                   ''.:^'- six-month listing deadline. However, '
                                   nioa wastes are not automatically prohibited
                                   "'' from land disposal if EPA fails to make
                                    ^ this required determination within six -;
                                     '-- months.    •'Jarfi Uaaooiq gnrJeilsb aii
                                    "q   Some commenters argued that the six-
                                    ' " month deadline would 'accelerate the   "
the existing LDR California List1 ^c-eig-»3l LDR determinations forested wastes   '
restrictions should be^appDcabre to  '«3^q that contain TC constituents. For  •"'•••»• "»*
.newly identified TCwastesrThe-Agency "••- example, some commercial chemical  "<
specifically requested commenVeif the  'n?J' products are corrently scheduled to be
appropriajeness of applying the ~^^;-'' reviewed by May 8. 1990 (51 FR 19300,
California Ust prohibitionB totiewly^^w^ May 28, 1986): H6wevOT,:-these wastes
identified hazardmirwastes in the-:; oriT   also may exhibit the TC. Commenters ""
                                       were concerned that these Wastes may ;
                                     Ube subject to the six-mbntn deadline and
                                      " claimed that this would effectively    ''
 November 22^1989 proposed ruleiforthe
 "Third Third:: Ibf scheduled wastes (54
 FR 48499). The AgemqTwill fully address
 this issue as part of the 'Third Third"
 final rule. joiobr^Jsica''^! no-baaed eb
   Since the Agency is hot today ••"rhaaJ
 proposing LDR treatment standards for
.the TC wastes, the Agency befieves that
 it is more appropriate to address these
 comments whenrtheLDR treatment
 standards are jproposed; However.
response to comments that proposed
treatment standards for listed solvents
were lower than proposed TC levels, the
Agency would like to point out that the
treatment standards for TC wastes will
not necessarily be the same as the    . .
corresponding.LDR treatment standards
                                      J accelerate the determinations in a
                                       manner that would be contrary to
                                       Congressional intent -' "b.'sbda^a" ^-n
                                         Wastes that are newly identified as
                                       hazardous by today's rule will be :-:i7
                                       subject to the six-month deadline for
                                  «qx3LDR determinations: However: evert if
                                   r /^EPA were to complete -LDR'-
                                    i^determinations for TC wastes before  7
                                      'May. 1990, the Agency'disagrees with
                                       commenters that this has the potential
                                       to accelerate the determinations in a
                                     •; manner that would be contrary to   •:-^!
                                       Congressional intent. The dates set forth
•-••-- concentrations that if exceeded, signal
    the need for corrective action) nor  .   : "
    cleanup standards. Rather, corrective
    action,' as a process, encompasses •-•_•'•: - -•
    trigger levels and cleanup standards that
    are developed'from site-specific   ''
    informatiorfgathered during the '^r';-!'
    investigatory and evaluative1 phases "of
    the process (i.e., the RCRA Facility':*"-:'•">•'•'
  ••i Investigation arid the Corrective"" ':j ••'•-•'
  --'Measures'Study).    •—•-:-" '=:I(:3a-;' :
   11   Thus, the levels or concentrations .
  ••* associated with"today's TC rulei are.•..,".'^'.'
  s° largely independent from levels';;"".'". ';.
   • associated with corrective action.
  *3 Similarly; the closure requirements are
  ^ unaffected by today's rule. The TC is not
   '] used ta determine whether a facility has
    met the requirements for clean closure.
  'n' However] it must be noted that solid
  -v- wastes generated as a result of     '. .';
    remediation of releases or in pursuance
  "•'•' of closure requirements that exhibit the
   °TC must be handled as a hazardous
  '-'waste. ,^.,.,ufi'; "" " ...'; '.7..".''.',','."
  ,v 4. Minimum, Technology Requirements

  ;'«  o. /J^/cB/7/ryi'HSWA addedTsectiori
  •^ 3004(o) to RCRA which imposes  '; "
  •••'•'miniiriuiri 'technology requirements on '
    owners and operators of certain landfills
  -; and surface impoundments seeking.
  ''^permits'. HSWA also added a  new
    section 3015 imposing similar  •
    requirements on certain interim status
             .                          in RCRA section 3004(g)(4) are deadlines
 for spent solvents. Indeed, if the TC: KI />a3by which EPA must make LDR  x.tn;r«.'n 3dwaste pile's, liaridfills. and surface
 wastes belong to a different treatability   ^determinations or the wastes are   s'-'1'- ^impoundments. Finally, HSWA section
 group, one can expect Jthat the treatment  -automatically restricted from land " ;  ~:
 standards will beidifferenU gniWoIioiad) cidisposaL EPA is itt^o way prevented or
  c. Schedule for LDR Determinations. — -discouraged by the statute from making
 For wastes already listed .or. identified at  .LDR determinations before any of its
                                                                           sB3005(j) requires surface impoundments
                                                                           :31to be retrofitted to meet minimum :   ;" '
                                                                            "-technology requirements. EPA codified
                                                                            'the statutory language in the Agency's

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                    Register / VoL 55> No. 61 / Thursday. March 29. 1990 / Rules and Regulations     11833
• Codification Rule promulgated on July
 25.1985 (50 PR2870S). Facilities that will
 face new RCRA regulation following the
 promulgation of the TC will need to-
 compiy with the minimum technology
 requirements in order to remain in
 operation.
   b. Scope of Minimum Technology
 Requirements—1. Permitted Facilities,
 Section 3004(o)(l)(A) requires that after
 November 8,1984, certain landfills and
 surface impoundments must meet
 minimum technology requirements. The
 minimum technology requirements for
 landfills and surface impoundments
 appear in 40 CPU 264-301(c) and
 2dL221(c), respectively. They require the
 owner or operator of each new unit and
 each replacement unit or lateral
 expansion of an existing unit to install
 two or more liners and a leachate
 collection system between and, for
 landfills, above the liners.
   2. Interim Status Facilities. Section
 3015 of RCRA requires that certain
 waste piles, landfills, and surface
 impoundments meet minimum
 technology requirements. The minimum
 technology requirements for interim
 statue waste piles, landfills, and surface
 impoundment* appear in 40 CFR 285.254,
 285301, and 2BR221, respectively^ They
 require tb«t the owner or operator of
 each new unit, replacement of an
 existing unit, or lateral expansion of an
 existing unit that is within the area
 identified in the part A permit
 application install liners and a leachate
 collection system or equivalent
 protection. Existing surface
 impoundments (Le., surface
 impoundments regulated under subtitle
 C prior to November 8.1884) had to be
 retrofitted to meet the minimum
 technology requirements by November
 8,1988.
   c. Compliance Mth Minimmn
 Technology Requirements. Facilities or
 units newly regulated as a result of the
 TC will have to meet the minimum
 technology requirements of sections
 3004(o) and 3015 if and when they add a
 new unit replace an existing unit, or
 laterally expand an existing unit.
 Surface impoundments must comply
 with the retrofitting requirement in
 section 3005(jK8)(A), which requires the
 owner or operator of a newly-regulated
 surface impoundment to retrofit that
 impoundment 4 years from the date of
 promulgation of the additional listings or
 characteristics, that made it  subject to
 regulation. Thusr surface impoundments
 that become regulated under subtitle C
 because of the TC will need to meet the
 minimum technology requirements on
 March 29,1994. (However, retrofitting
 may be expedited due to the minimum
technology requirements imposed under
the capacity variance-for land disposal .
under section 3004.) This extension
applies only to those impoundments that
contain solely the newly listed/
characteristic wastes. Any
impoundments that already contained
listed/characteristic wastes currently
are subject to RCRA regulations.    --
including the minimum technology
requirements. Other existing land
disposal units (besides surface
impoundments) that already contained
wastes that exhibit the TC will not
require retrofitting unless they are
expanded or are replacement units.
5. RCRA Subtitle D (Solid Wastes]
  a. Municipal Waste Combustion Ash.
Several commenters requested that ash
from municipal waste combustion
(MWC) units be exempt from regulation
under the TC. Many of these
commenters argued that the regulation
of MWC ash would be in direct conflict
with RCRA section 3001(1), which
provides that resource recovery
facilities pugaging in MWC "shall not be
deemed to be treating, storing, disposing
of, or otherwise managing hazardous
wastes." Other commenters indicated
that the high costs associated with
subtitle C regulation would discourage
the recovery of energy values from
MSW. They claimed that this result
would run counter to the clear
Congressional intent to encourage
resource recovery as a beneficial
alternative to the landfilling of MSW.
  EPA articulated its position on the
scope of section 3001(i) when the
Agency codified the 1984 HSWA (see 50
FR 28725, July 15.1985). However, two
recent Court decisions have rejected
EPA's 1985 interpretation. EDFv. City of
Chicago, No. 88C789 (NJ3. Dl.J (slip op.
Nov. 29.1989) and EOF v. Wheelabrator
Technologies Inc., No. 88Civ.0560 (SD.
N".Y.) (slip op. Nov. 21,1989). The
Agency is considering tbe appropriate
response to these two decisions.
  6. Impact on Wastes Exchtded from
Subtitle C Regulation. Another group of
commenters asked for assurances that
the TC rule would not affect the existing
exclusions for specific wastes under 40
CFR 281.4(b). One commenter expressed
particular concern about the exchwion
for mixtures of household and other
nonhazardous solid wastes. Another
commenter raised questions about
applying the TC to waste* *at are
usually considered to be non-hazardous
solid wastes. Other commenters focused
on the exemptions for "special wastes."
primarily mining and mineral processing
wastes and oil and gas production
wastes. A utility company consortium
addressed the exemption for wood
treated with arsenic, commonly used as
a fungicide for utility poles. The
commenter noted that cresols and
pentachlorophenol also used as
fungicides for wood, are proposed as TC
constituents; the commenter asserted
that the exemption for arsenic-treated
wood should be extended to creosote-
and pentachlorophenol-treated wood as
well.
  The TC rule will not apply to wastes
that are already excluded from subtitle
C regulation under 5 261.4(b). These
wastes will continue to be exempt from
regulation as hazardous wastes, even if
they would exhibit the TC. Likewise, the
TC rule does not add any exclusions to
the applicability of previously
promulgated hazardous waste
characteristics. With respect to the issue
of creosote- and pentachlorophenol-
treated wood, EPA does not at this time
intend to expand the list of exemptions
under J 261.4(b) to include these wastes.
This is discussed further in section
HI.J.4.b.
  It should be noted, however, that the
special waste exclusions are currently
being reevaluated in accordance with
the criteria and procedures mandated by
Congress. After completing the studies
required by RCRA section 8002, EPA
may determine that one or more special
wastes should be regulated under RCRA
subtitle C (see RCRA section 3001 (b)).
Such wastes would then be listed or the
generators required to determine
whether the wastes exhibit a hazardous
waste characteristic.
  A few commenters argued that even if
special wastes are brought into the
subtitle C system, they should not be
subject to the TC. These commenters
claimed that codisposal of special
wastes with MSW is implausible
because special wastes, by definition,
are generated in very large quantities.
The commenters recommended that EPA
develop a separate mismanagement
scenario and leaching procedure for
special wastes.
   At this time, the Agency cannot agree
that the TC should not be applicable to
special wastes; rather, the applicability
to these wastes will be determined on a
case-by-case basis. If EPA makes a
determination that any special wastes
should be regulated under RCRA
subtitle C. the Agency will at that time
make a separate determination
concerning the applicability of the TC to
such wastes.
6. RCRA Subtitle I (Underground
Storage Tanks)
   a. Scope of the Underground Storage
 Tank Program. Subtitle I of RCRA
provides for the establishment of a

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11836      Federal Register / Vol. 55. No. 61 / Thursday, March 29. 1990 / Rules and Regulations
regulatory program for underground
storage tanks containing "regulated
substances." Regulated substances are
defined under RCRA section 9001(2) as
(1) petroleum and (2) hazardous
substances listed under section 101(14)
of the Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA or Superfund). excluding
hazardous wastes regulated under
subtitle C of RCRA.
  Except as discussed below, today's
action will change the regulatory status
of TC wastes that were previously
subject to RCRA subtitle I. Because
these wastes will be RCRA hazardous
wastes, they are excluded from
regulation under subtitle I (see 40 CFR
part 280.10(b)(l)). For this reason,
underground storage tanks that contain
TC wastes will be subject to the subtitle
C tank requirements rather than those
promulgated under subtitle I.
  b. Deferral for Petroleum-
Contaminated Media and Debris
Subject to Part 280 Corrective Action
Requirements. As part of its
underground storage tank (UST)
program, the Agency has recently
promulgated regulations which address
releases from USTs containing
petroleum (see 53 FR 37082, September
23,1988 and 53 FR 43322, October 28,
1988). Among other requirements, these
rules require petroleum UST owners and
operators to install leak detection, to
report leaks frdm their tanks and piping,
to undertake corrective action to
address such releases, and to
demonstrate financial assurance for
corrective action and third party
liability resulting from such releases.
These requirements started going into
effect in December, 1988, and the
Agency estimates that over the next few
years more than 300,000 petroleum UST
releases will be discovered and be
subject to the subtitle I corrective action
requirements. In addition, the Agency
has, through cooperative agreements,
provided funding to states from the
Leaking Underground Storage Tank
(LUST) Trust Fund under RCRA to
undertake the necessary response
actions where petroleum UST owners
and operators are unable or unwilling to
do so. Hundreds of petroleum UST
cleanups  have been initiated to date
under this program.
  As noted in the preamble to the final
UST rules, due to the large regulated
community affected by the UST
regulations, the  UST program is based
on self-implementing requirements and
is highly dependent upon voluntary
compliance to attain the environmental
performance objectives of the program.
However, because petroleum contains.
 several of the hazardous constituents for
 which regulatory levels are being
 established today (e.g., benzene) some
 of the petroleum-contaminated media
 and debris may exhibit the Toxicity
 Characteristic under today's rule. While
 the amount and type of media and
 debris that may exhibit the
 characteristic at any particular UST site
 will depend upon the petroleum product
 soil type, and the size of the release, it is
 likely that many sites where petroleum
 UST releases have occurred will contain
.some media that exhibits the Toxicity
 Characteristic. The management of any
 such media and debris would be subject
 to subtitle C requirements for hazardous
 waste management.
  The Agency has  insufficient
 information concerning the full impact of
 this rule on UST cleanups, but the
 information available to date suggests
 that the impact may be severe in terms
 of the administrative feasibility of both
 the subtitle C and subtitle I programs.
 Thus, the Agency has decided to defer a
 final decision on the application of the
 TC to media and debris contaminated
 with petroleum from USTs subject to the
 part 280 requirements. The application-
 of today's rule to these cleanups will be
 delayed while the Agency evaluates the
 extent and nature of this impact and
 alternative administrative mechanisms
 for implementing the UST cleanups in
 accordance with subtitle C
 requirements. The Agency believes that
 the UST regulations governing cleanups
 at these sites will be adequate in the
 interim to protect human health and the
 environment.    -
  The deferral of a final decision
 concerning application of this rule to
 UST cleanups is necessary for several
 reasons. First, while the actual number
 of sites and amount of media and debris
 at each site that would exhibit the
 toxicity characteristic under today's rule*
 is unclear, based on a preliminary
 assessment, the number and amount
 could be extremely high. As noted
 above, EPA expects hundreds of
 thousands of UST releases to be
 uncovered in the next few years.
 Subjecting each of these sites to subtitle
 C requirements could overwhelm the
 hazardous waste permitting program
 and the capacity of existing hazardous
 waste treatment, storage, and disposal
 facilities. Imposition of the subtitle C
 requirements is also likely to delay
 cleanups significantly and severely
 discourage the self-monitoring and
 voluntary reporting essential to
 implementation of the UST program.
 Moreover, the UST cleanup activities
 involving the most  contaminated media
 and debris are also likely to involve free
 product recovery. Free product recovery
 would not be subject to subtitle C
 requirements because the material being
 recovered is not a waste.
   Because of the uncertainties of the
 impacts on the UST cleanups as a result
 of this rule, including the amount of
 contaminated media that would become
 hazardous waste and the type of
 management feasible and appropriate
 for such waste (i.e., on-site treatment
 off-site disposal), EPA cannot determine
 whether the application of this rule to
 these cleanups will have the severe
 consequences on implementation of
 these RCRA programs that preliminary
 information suggests. Also, because this
 isaue did not come to the Agency's
 attention until late in the development  •
 of this rulemaking, the Agency has not
 had an opportunity to obtain public
 input on this issue, the implications of
 the subtitle C requirements when
 applied to UST cleanups, or any
 alternative regulatory mechanisms to
 make feasible the implementation of
 UST cleanups while meeting subtitle-C
 hazardous waste requirements. Thus,
 the Agency believes that further
 evaluation of the impacts of applying the
 TC to soils and ground water        ••..-.. :
 contaminated by petroleum from USTs .  .
 and subject to the subtitle I program is
 necessary in order to determine whether
 an exemption for such materials is ,  •-.., .•>
 warranted or whether additional    . •;;. i
 regulatory or administrative changes:-. '..-•
 can or should be made in order to make
 the application of the TC to UST
 cleanups feasible.         .*•   ..v.;-.-..-:.,-n
   In order to make a final decision r   .;: - •..
 concerning the applicability of this rule
 to UST sites, the Agency intends to    . ..
 undertake several activities. First,  the;
 Agency will attempt to more specifically  •
 define the impact of the TC through .   .
 studies of petroleum UST sites, focusing
 upon the potential hazard from these
 sites. More specifically, the Agency will.
 study the characteristics of UST sites
 (number of UST sites by media type,
 volumes of media and debris typically
. removed, fraction of this media and-.  •  .
 debris that exhibits the TC, if any,  etc.),.
 current practices and requirements for  •'•
 management of these media and debris,
 and how contaminated media and
 debris from these sites are managed
 under the new subtitle I state programs.
 As currently envisioned, these studies
 will include: (1) A survey of tank
 vendors, contractors, and others
 knowledgeable about UST site      ...
 characteristics and contaminated media
 and debris management practices;  (2) a
. survey of current state and local
 programs; and (3) a sampling program
 conducted in conjunction with one or

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           Federal Register / Vol. 55, No. 61  / Thursday, March 29. 1990  /  Rules and Reguia -ons      11837
more selected states. The Agency also
plans to evaluate the impact that
subtitle C managenierV of petroleum-
r.cutarninaied media and debris from
USTs would have on the Agency's and
states' hazardous waste management
programs, in addition, the inclusion of
these media and debris in the subtitle C
management system will be evaluated in
comparison to the available capacity for
commercial hazardous waste treatment.
storage, and disposal.
  Second, the Agency '
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11838     Federal Register / Vol. 55. No. 61  /  Thursday.  March 29.  1990 / Ruies  and Regulations
characteristics" (see RCRA section
3001(a)). These criteria are different
from those used under the CWA.
  Accordingly, the two statutory
programs have different goals. EPA
believes that the TC regulatory levels
represent concentrations above which a
wastewater poses a potential hazard to
human health and the environment, if
mismanaged, even if it has been treated
to some degree. Therefore, owners and
operators of wastewater treatment
facilities that treat wastewaters
exhibiting the TC will be required to
comply with all applicable regulations
under RCRA and the CWA.
  b. Permit Requirements for
IVastewaier Treatment Facilities. Many
commenters stated  that under the
proposed TC, many wastewater
treatment facilities  will become
hazardous waste treatment facilities
subject to full RCRA permitting
requirements. These commenters were
concerned that the costs  to industry of
preparing permit applications and
complying with RCRA regulations for
hazardous waste treatment facilities
will be prohibitive.  Some commenters
argued that EPA has insufficient
resources to process permit applications
from all of the wastewater treatment
facilities that will require permits.
  Although owners and operators of
some wastewater treatment facilities
that use newly-regulated surface
impoundments could be subject to
RCRA permitting requirements, EPA
believes that the actual number of
facilities requiring permits will not be
large. The Regulatory Impact Analysis
for this rule indicates that other options
available to wastewater treatment
facilities treating wastewaters
exhibiting the TC are likely to be more
cost-effective than obtaining an RCRA
permit (see section  VI. B for a more
detailed discussion). In particular, an
alternative that the  Agency expects may
be attractive to many owners and
operators is the replacement of surface
impoundments with tanks. Retrofitting
existing surface impoundments to meet
RCRA requirements for hazardous
waste management facilities will often
be more expensive than building tanks
that are subject to CWA requirements in
lieu of RCRA permitting requirements.
("Wastewater treatment units" are
exempt from the hazardous waste
management standards under 40 CFR
264.1(g)(6) and 265.1(c)(10). Similarly.
"totally enclosed treatment facilities"
are exempt under 40 CFR 264.1(g)(5) and
265.1(c)(9).) Thus, there are options
available to owners/operators for whom
RCRA standards may be too costly.
  There may be some wastewater
treatment facilities  that opt to continue
using surface impoundments to manage
wastewaters exhibiting the TC, and
these facilities will enter the RCRA
permitting system. However, the Agency
does not believe that there will be such
a large number of facilities that it will
overwhelm the Agency's permitting
capabilities.
  c. Sludges from Publicly Owned
Treatment Works (POTW). The
preamble to the June 13,1986 proposed
rule requested comments on the
regulation of sewage sludge under
RCRA and under the CWA. The
preamble stated that EPA was
considering an exemption from RCRA
regulation for sludges from publicly
owned treatment works (POTW sludges)
upon the promulgation of sewage sludge
management standards pursuant to
section 405(d) of the CWA.
  A number of commenters, including
many municipalities, responded to this
request for comments. Although a few
commenters opposed an exemption from
RCRA for POTW sludges, the
commenting municipalities supported an
exemption from RCRA. These
municipalities stated that sewage sludge
management regulations, in addition to
pretreatment standards, are sufficient to
protect human health and the
environment without additional
regulation under RCRA. Commenters
stated that regulating POTW sludge
under RCRA will place a significant
economic burden on municipalities and
will cause municipalities and EPA to
face  duplicative administrative costs
and regulatory confusion.
  EPA does not agree with commenters
that regulation of POTW sludge under
RCRA will place a significant economic
burden on municipalities or increase the
burden of implementation. EPA's office
of Water tested 18 POTW sludge
samples using the TCLP; none of the
samples tested exhibited the TC at the
proposed regulatory levels (Ref. 18).
Because the final TC regulatory levels
are higher than the proposed regulatory
levels, the Agency believes that few, if
any,  POTW sludges will exhibit the TC.
Thus, most POTW sludges will not be
classified as hazardous waste under
RCRA.
  Although EPA does not believe it is
necessary to exempt POTW sludges
from RCRA at this time, the Agency may
reconsider this decision after the
sewage sludge management regulations
are promulgated. In the unlikely event
that a particular POTW sludge does
exhibit the TC, the municipality may use
the pretreatment program under the
CWA to eliminate the indirect
discharges of the pollutants that are
causing the sludge to exhibit the TC.
3. Safe Drinking Water Act

  Several commenters noted that the
proposed regulatory level for chloroform
is lower than the primary drinking water
standard for trihalomethanes (a class of
organic chemicals that includes
chloroform) established under the Safe
Drinking Water Act (SDWA). Most of
these commenters consequently
declared that the regulatory level had
been set too low, and they argued that it
would be unreasonable  to regulate
ordinary drinking water as a hazardous
waste. Some commenters asserted that
an industrial facility taking water from a
public water supplier (a facility
supplying drinking water in compliance
with the SDWA rules) could find that its
noncontact cooling  water becomes a
hazardous waste after it is passed
through the plant and is disposed.
  In today's final rule, the regulatory
level for chloroform has been raised
from that proposed in the June 13,1986,
notice of proposed rulemaking. The
change is because of two modifications
to the data originally used to set the
regulatory level: first, the chronic
toxicity reference level for chloroform is
roughly 12 times higher than when
originally proposed (see 53 FR18024)
and, second, due to the changes in the
model, the DAF is about 7 times higher
than the one originally proposed.'
Together, these two changes result in a
regulatory level that is higher than both
the original regulatory level and the
SDWA standard for trihalomethanes.
Non-contact cooling water or other
wastewaters derived from public water
supplies complying with the SDWA thus
should not exhibit the TC for chloroform
unless these wastewaters are
contaminated by other sources.

4. Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA)

  a. Pesticide Wastes. The Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA) authorizes  EPA regulation
of pesticide sale, distribution, use, and
disposal. Since RCRA regulations cover
solid wastes which include pesticide
product wastes, these wastes may be
regulated under both  FIFRA and RCRA.
  Until recently, pesticide disposal
under FIFRA was primarily controlled
by mandating that product labeling
include instructions for  the proper
disposal of the pesticide and its
container.  Recent amendments to
FIFRA, effective October 25,1988,
authorize the Administrator to impose
additional requirements relating to
storage, transportation, and disposal of
certain pesticides. For example, EPA
under FIFRA may issue requirements
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            Federal Register  /  Vol. 55.  No. til /  Thursday. March 20. 1090 / Rules and Regulations
                                                                       11839
and procedures for the storage.
transportation, and disposal of
suspended or cancelled pesticides and
of rinsates or containers associated with
the pesticides. Also. EPA may require
that applicants for registration of a
pesticide submit information regarding
methods for safe storage and disposal of
the pesticide, and  that applicants for
registration provide evidence of
sufficient financial resources to provide
for disposal in the event of suspension
or cancellation.
  A number of pesticide-related wastes
are listed as hazardous under 40 CFR
part 261. The listings include four
groups: The first, at § 261.31. includes
certain discarded unused pesticide
formulations containing tri-, tetra-. and
pentachlorophenols (F027) or certain
compounds derived from the
chlorophenols; these are listed as acute
hazardous waste. This listing includes
approximately 20 phenoxy pesticides
and their salts and esters. Today's rule
will add the constituent 2.4.6-
trichlcrophenol. which is used as an
active ingredient in pesticide products.
to the TC list. Because products
containing this constituent are
separately listed under F027, the
promulgation of specific toxicity limits
will not affect their regulation  under
RCRA (i.e., they will continue to be
regulated as acute hazardous wastes at
all concentrations, both above and
below the TC level).
  The second group, at  § 262.32, consists
of "K" wastes from the production of
specific pesticides, such as wastewater
treatment sludges  from the production of
the pesticide chlordane (K032); these ere
listed as toxic wastes. Again, however.
because these wastes are listed they
u ill not be affected by the regulatory
levels of the TC. but will continue to be
subject to regulation regardless of
concentration levels.
  The third grouping, at § 281.33 (e) and
(f). consists of "P" and "U" wastes.
Section 261.33 lists certain commercial
chemical products as hazardous when
discarded or intended for discard.
Approximately 50 pesticide active
ingredients are listed as acute
hazardous wastes under § 261.33(e).
while 83 pesticide active ingredients are
listed under § 2B1.33(f) as toxic
hazardous wastes. Pesticide products
containing these chemicals as sole
active ingredients or the pure or
technical grade of these chemicals are
regulated under both RCRA and FIFRA
when they become wastes. Generally,
products containing these ingredients as
one of multiple active ingredients are
not regulated (at this time) as hazardous
wastes under subtitle C of RCRA unless
 they meet one of the characteristics;
 (heir disposal is still subject to any
 applicable FIFRA and RCRA subtitle D
 requirements. For the majority of the 13;i
 listed pesticides, today's rule will not
 change their status under RCRA: waste
 pesticides that are either pure, technical
 grade, or sole active ingredient products
 will continue to be subject to regulation
 us hazardous at all concentrations under
 RCRA subtitle C. Wastes from multiple
 active ingredient products that do not
 exhibit a characteristic will still be
 regulated under any applicable FIFRA
 and RCRA subtitle D requirements.
  Six pesticide wastes that are currently
 regulated on a concentration basis
 under the existing EPTC at § 261.24.
 form the fourth group. These six
 pesticides (endrin. lindane,
 methoxychlor, toxaphene. 2.4-D, and
 silvex) will be retained in the new rule
 with their current concentration limits.
 which are based on a DAF of 100. The
 significant difference between the
 listings and the TC is that, while
 multiple active ingredient products are
 not covered by the listings, they are
 covered under the characteristic. Thus.
 increasing the number of pesticidal
 constituents encompassed by the TC
 (whether or not they are also listed).
 brings more multiple active ingredient
 formulations into the subtitle C system.
 Consequently, today's rule is expanding
 regulation of pesticide wastes under
 RCRA.
  Although EPA is adding pesticides to
 the TC list of constituents, today's rule
Will not have a significant effect on
 many pesticide users who generate
 wastes. RCRA regulations contain
 special requirements that affect the
 extent to which pesticide users will
 become subject to additional RCRA
 regulation:
  •  Household pesticide wastes are.
 like other household wastes, exempt
 from RCRA.
  •  Farmers who triple  rinse their
 containers acd dispose of the rinsate on
 their own farm in a manner consistent
 with 40 CFR 262.51 and label
 instructions are exempt from RCRA
 requirements.
  •  Other small quantity generators
 under § 261-5 need comply only with
 reduced requirements. Many pesticide
 users are small quantity generators.
  •  Under § 261.7. properly emptied
 containers may be exempted from
 further RCRA requirements. Thus, many
 pesticide containers may not be subject
 to regulation as hazardous wastes.
  As a result, the principal effects of
 today's final rule will be felt by
 commercial applicators, such as aerial
 applicators and pest control operators.
who are not eligible for the special
requirements applicable to farmers and
who may use sufficiently large volumes
of pesticides that they exceed the small!
quantity generator limitations. If they  <
use large quantities of multiple active
ingredient pesticide products that have
not previously been regulated, such
coniir.ercial applicators may be newly
subject to  the RCRA hazardous waste
management requirements.
  b. Treated Wood Wastes. The Agem:y|
is promulgating TC regulatory levels for
certain chemicals—for example, cresols
and pentachlorophenol—that are
commonly used as wood preservatives.
In its review of wood preservative
chemicals under FIFRA, EPA concluded
that these wood preservatives may
continue to be used under certain
circumstances, and the Agency decided
to allow disposal of treated wood by
means of ordinary trash collection,
burial, or incineration (49 FR 28666. July
13.1984. and 51 FR 1334. January 10.
1986). However, the mandates of FIFRA
and RCRA are different. EPA has
previously stated that even if it were
determined that certain ground uses of
treated wood did not pose unreasonable
risks, wood wastes might still be
regulated under RCRA subtitle C (45 FR
78531. November 25,1980). Under
FIFRA. the Agency may determine that
the economic benefits of continued use
of a pesticide outweigh any potential
risks posed by the pesticide. This does
not mean, however, that materials
treated with pesticides should not be
managed in a controlled manner under
RCRA at the end of their useful lives, to
ensure that long-term risks are
minimized.
  Some treated wood that is hazardous
solely because it fails the EP toxicity
test for arsenic which is not a hazardous
waste for any other reason or reasons is
exempt from regulation as hazardous (40
CFR 261.4(b)(9)). The exemption is
limited to  wood wastes generated by
persons who use wood products for their
intended end use. Several comrnenters
claimed that large quantities of treated
wood wastes will be newly regulated as
hazardous under the TC, and they
argued that this result is inconsistent
with other F.PA policies and regulations.
Most of these commenters
recommended that EPA expand the
existing exemption for arsenic-treated
wood waste to encompass all treated
wood that exhibits the TC.
  EPA has decided not to expand the
existing exemption for arsenic-treated
wood, if a wood waste does exhibit the
TC for a constituent other than arsenic.
or if the waste is hazardous waste for
any other reasons or reasons, the
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11840      Federal Register /  Vol.  55. No. 61 / Thursday, March 29. 1990 / Rules  and Regulations
Agency believes that the waste should
be regulated as hazardous, in order to
protect human health and the
environment. The arsenic-treated wood
exemption is not being revoked at this
time, but it may be reevaluated in the
future.

5. Food. Drug, and Cosmetic Act (FDCA)
  o. Food Wastes. Several commertters
noted that allowable levels set by the
Food and Drug Administration (FDA)
under the Food, Drug, and Cosmetics
Act (FDCA) are, in some cases, higher
than the proposed TC regulatory levels
for the same chemicals. Most of these
commentcrs then asserted that if it is
safe to consume substances containing
pesticides or additives, it must also be
safe to place such substances in
municipal landfills. Some commenters
expressed concern that food wastes that
comply with FDCA pesticide tolerance
or action levels may nevertheless have
to be handled as hazardous wastes as a
result of the TC. One food processing
industry trade association requested
that the final TC rule state that any
waste from food already in compliance
with a tolerance or action level set by
EPA or FDA is nonhazardous.
  The Agency acknowledges that for
certain chemicals in waste, it proposed
TC regulatory levels lower than FDCA
tolerances or action levels in food.
However, it is inappropriate to make a
direct comparison of these two sets of
levels. FDCA levels are set for
concentrations in food products, while
TC levels apply to concentrations in the
leachate from waste materials. Because
not all toxic constituents leach from the
waste, levels in the leachate are lower
than in the waste material itself.
Accordingly, for a food waste to be
hazardous, the waste would have to
have constituent concentrations higher
than the TC levels. The Agency is
unaware of any food-related wastes that
will be regulated as hazardous under the
TC rule. (In addition, unlike the FDCA,
RCRA does not allow consideration of
economic factors in establishing
regulatory levels of concern.)
  If any food waste does exhibit the TC,
it may be subject to lesser requirements
as household waste (40 CFR 261.4(b)(l))
or under the small quantity generator
provisions (40 CFR 261.5). For non-
household food wastes that fail the TC
(i.e.. leachate from the waste contains
contaminants in levels equal to or above
the regulatory levels promulgated in
today's rule) and that are generated in
large quantities, it is app.opriate that
they be managed in a controlled manner
to protect human health and the
environment. Because EPA sees no
conflict between the TC rule and
tolerance or action levels under FDCA,
this rule contains no exemption for
wastes that meet the FDCA standards.
  b. Pharmaceutical and Cosmetic
Wastes. Several commenters, arguing
that the proposed TC levels were too
low, pointed out that the proposed
regulatory levels are lower than FDCA-
allowed levels for the same chemicals in
drugs or cosmetics.
  Although the proposed TC regulatory
levels for certain chemicals were lower
than the FDCA levels for the same
chemicals in drug and cosmetic
products, the levels are higher in the
final rule. Moreover, it is clear that
different factors must be taken into
account when regulating these
constituents in drugs and cosmetics
rather than in solid wastes, as confirmed
by different statutory mandates. The
constituents in drugs and cosmetics
products, often used in very small
quantities, serve a useful function and
may be therapeutic in certain quantities
and under proper circumstances.
However, this does not mean that these
same constituents should not be
controlled where found at TC levels in
waste materials.
  Of course, drug and cosmetic wastes
generated in households  are not subject
to subtitle C regulation (40 CFR
261.4(b)(l)) nor are wastes generated by
small quantity generators (less than 100
kg/mo of non-acute hazardous waste—
see 40 CFR 261.5). However, drug and
cosmetic products when discarded may
present risks to human health and the
environment if disposed in large
volumes. Thus, EPA maintains that
regulation of large quantities of drug or
cosmetic wastes exhibiting the TC is
appropriate and not in conflict with the
existing FDCA program.

6. Used Oil Recycling Act
  The Used Oil Recycling Act of 1980
(UORA), which amended RCRA. was
intended to increase safe recycling and
reuse of used oil. It established that it is
in the national interest to recycle used
oil in a manner that both protects public
health and the environment and
conserves energy and materials. The
UORA has been incorporated in section
3014 of RCRA.
  Section 3014 of RCRA,  as amended by
HSWA, requires EPA to make a
determination of whether to list or
identify used oil as a hazardous waste
(see RCRA section 3014(b)). In response
to this statutory directive, EPA proposed
to list most types of used oil, including
recycled used-oil, as a hazardous waste
on November 29,1985 (see 50 FR 49258).
EPA subsequently decided in November,
1986 not to list used oil because the
Agency believed that the listing would
discourage recycling of used oil and
could result in an increase in the amount
of used oil that is disposed of or.illegally
dumped. The Agency decided to
continue to study whether used oil that
is disposed should be listed as a
hazardous waste under RCRA or
regulated under different statutes (see 51
FR 41900 (November 19,1986)). EPA's
decision to withdraw the proposed
listing of used oils was invalidated by
the D.C. Circuit Court of Appeals in
1988. The Agency was directed by the
Court to reconsider the listing of used oil
as a hazardous waste based on the
technical criteria contained in RCRA
section 3001.
  Some commenters claimed that used
oil would be brought into the subtitle C
system under the TC proposal. They
stated that used oil is likely to fail the
TC test for both aromatic hydrocarbons
(e.g., benzene) and chlorinated solvents
(e.g., trichloroethylene and
tetrachloroethylene). The commenters
argued that regulating used oil as a
hazardous waste would be inconsistent
with the intent of the UORA, as well as
with current Agency policies regarding
used oil.
  Under today's rule, used oil will be
regulated as a hazardous waste only: (1)
If it exhibits  one or more of the
hazardous waste characteristics defined
in subpart C of 40 CFR part 261
(including the TC as finalized today)
and (2) if it is disposed of (rather that
recycled). On the other hand, used oil
that exhibits one or more of the
hazardous waste characteristics and is
recycled is exempt from regulation (see
40 CFR 261.6(a)(3)(iii)) except as
provided in subpart E of 40 CFR part
266. In addition, RCRA prohibits the use
of used oil as a dust suppressant or for
road treatment if it  is contaminated with
dioxin or mixed with a hazardous
waste. Thus, used oil that exhibits one
or more of the characteristics (except for
ignitability) cannot be used as a dust
suppressant, hi particular, the
regulations have the following effect:
  • Solid waste that is hazardous waste
because it fails a characteristic and that
is recycled (except by burning or use as
a dust suppressant) is exempt from
regulation.
  • Characteristically hazardous used
oil that is disposed  of (or incinerated
without recovery of energy value) is
subject to full RCRA subtitle C
regulation.
  • Characteristically hazardous used
oil that is being burned for energy
recovery is subject to subpart E of part
266—i.e., off-specification used oil is
subject to certain administrative
requirements, while specification used
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            Federal Register / Vol. 55. No.  61 / Thursday. March  29.  1990 / Rules  and Regulations
                                                                      11841
oil is subject only to the analysis and
recordkeeping requirements of 40 CFR
266.43(b) (1) and (6).
  • Characteristically hazardous used
oil is prohibited from being used as a
dust suppressant, unless it is hazardous
solely for exhibiting the ignitability
characteristic (see 40 CFR 266.23{b)).
  • Characteristically hazardous used
oil that is recycled in any manner other
than being burned for energy recovery
(e.g., by being rerefined) is exempt from
subtitle C regulation.
Therefore, today's rule will not affect
the regulatory status of most recycled
used oil. In fact, today's rule should
encourage the recycling of used oil, and
not discourage its recycling as suggested
by some commenters. It should also  be
noted that some percentage of used oil
already is defined as hazardous (i.e.,
exhibits one or more of the hazardous
waste characteristics and is disposed).
Consequently, the amount of used oil
that is affected by this rule and is either
disposed of or recycled by being burned
for energy recovery or used as a dust
suppressant will be even less.
  The Agency is currently determining
how best to deal with used oil listing
and management issues. Section 3014 of
RCRA also requires EPA to promulgate
management standards for used oil that
is recycled. Standards for controlling
used oil which is  recycled were
proposed on November 29,1985 (50 FR
49212), but have not been finalized. The
Agency will be addressing these issues
as well as addressing the listing
determination in the near future.
7. Toxic Substances Control Act (TSCA)
  EPA has decided to exempt from the
application of this rule certain
polychlorinated biphenyl (PCB) wastes
that are regulated under the Toxic
Substances Control Act (TSCA) and
would be identified as hazardous
because of today's rule. Specifically,
PCB-containing dielectric fluids
removed from electrical transformers,
capacitors, and associated PCB-
con lamina ted electrical equipment may
exhibit the TC, and thus become
hazardous wastes when disposed, not
because they contain PCBs (which are
not among the constituents regulated
under the TC) but because they may
contain other TC constituents, such as
chlorinated benzenes. The Agency has
decided to exempt such wastes from the
subtitle C management standards
because new regulation of these wastes
under RCRA may be disruptive to the
mandatory phaseout of PCBs in certain
electrical transformers and capacitors.
In addition, the Agency believes that the
regulation of these wastes under TSCA
is adequate to protect human health and
the environment. However, the
exemption applies only to those
dielectric fluids (as described above)
that are fully regulated under TSCA.
Other PCB-containing wastes that are
hazardous (i.e., listed or exhibit a
hazardous waste characteristic
including the existing EPTC wastes—
waste codes D004 through D017) are
subject to all applicable subtitle C
standards. Furthermore, these  non-TC
hazardous wastes that are (1) liquids
containing PCBs at  concentration
greater than 50 ppm, or (2) solids
containing PCBs listed in Appendix  III of
part 268 at concentrations greater than
1000 mg/Kg, are prohibited from land
disposal under 40 CFR part 268.
  The disposal and storage of PCB
wastes is regulated under TSCA section .
6(e)(l) authority rather than under
subtitle C of RCRA. Since the enactment
of TSCA, the manufacture, processing,
and distribution in  commerce of PCBs
(without an exemption) has been
banned and the use of PCB without
authorization has been banned. In
addition,  EPA has developed
comprehensive PCB disposal regulations
under TSCA. This regulatory framework
includes specific disposal requirements
for defined classes  of PCB wastes,
specific marking requirements for PCB
items, facility recordkeeping
requirements, approval requirements for
disposers, and a proposed notification
and manifesting system modeled on the
subtitle C "cradle to grave" tracking
system.
  One commenter stated that utility
transformer dielectric fluids are likely to
exhibit the revised  TC and urged the
Agency to exempt PCB-containing utility
transformer dielectric fluids from the
rule. The  commenter noted that the
regulation of PCBs  is unique because the
manufacture of PCBs (without an
exemption) has been banned. Thus,  the
critical regulatory concern with respect
to these PCB wastes is the need to
expedite safe disposal of the chemical.
The commenter stressed that if PCB
wastes were to be regulated now under
RCRA as well as under TSCA, serious
legal, practical and administrative
complications could result.
  The Agency agrees with the
commenter. The most significant
potential negative impact of dual
regulation of these  wastes under both
RCRA subtitle C and TSCA results from
the unique scope and timing of PCB
disposal. The Agency estimates that
approximately 312  million pounds of
PCBs are dispersed among nearly 30
million discrete units of electrical
equipment. The TSCA regulations
require the phaseout of certain PCB-
containing electrical transformers, and
I
EPA expects that the TSCA mandate1
phaseout requirements and restrictio:
will render the next three years a peak
period for PCB disposal. Under the
authority of the TSCA mandatory
phaseout, by October 1,1990, owners™
secondary network higher voltage
transformers located in or near
commercial buildings are required to
either remove or reclassify these
transformers. (Reclassification
necessitates draining of all PCB fluids—
from the unit, and replacing them witfl
non-PCB  fluids or low concentration
PCB fluids, and keeping the transformer
in full service, under loaded condition;
for a minimum of three months.) In
addition,  the phaseout restrictions affd
lower secondary voltage  network units
of PCB-containing electrical
transformers located in or near
commercial buildings; by October 1,
1993, such transformers must either be
removed  or be reclassified, or an
alternative option for lower voltage
units allows for providing enhanced
electrical protection  on such units by
October 1,1990. Radial PCB-containina,
electrical transformers must either ha\f||
enhanced electrical protection or be
removed.
  The TSCA program, with which the
regulated community is familiar, is
specifically tailored to deal with the
problem of widely dispersed waste
generation and the timely disposal of a
chemical that is no longer commercialtfTt
produced. The confusion that could
result from the addition of requirements
under a separate regulatory disposal
system, and the RCRA disincentives to
waste production, would cause
significant disruption to the expeditious
disposal of large quantities of these PCB
wastes if these wastes were to become
subject to the RCRA hazardous waste
regulations.
  In addition, the Agency believes that
the existing system for PCB disposal,
including the existing TSCA disposal
regulations and recent additions to the
program (e.g., the proposed notification
and manifesting rule, published at 53
37436), are adequate to protect human
health and the environment with respe
to the disposal of these wastes. Thus,
further regulation under RCRA for PCB
containing dielectric fluids and
associated PCB-contaminated electrical
equipment does not appear to be
necessary at this time. The Agency will
also evaluate the integration of the
TSCA PCB regulations with the RCRA
hazardous waste regulations for other
PCB-containing wastes which are
identified or listed as hazardous.
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  ,842
Federal Register /  Vol.  55. No. 61 / Thursday. March 29. 1990  /  Rules and Regulations
 K  .i.fttementation Issues
  'ERA received many comments
 concerning implementation of the TC
 rule. The comments addressed issues
 including the schedule for companies
 and municipalities to come into
 compliance with subtitle C
 requirements, exemptions and
 applicability, implications for permit
 modifications, and administrative
 requirements. Major comments on
 implementation are summarized and
 addressed below. Section V of this
 preamble further discusses how the
 Agency will implement today's rule.
 1. Notification
   In the June 13.1986 Federal Register
 notice. EPA proposed to waive the
 RCRA section 3010 notification
 requirement for persons who manage TC
 wastes and have already: (1) Notified
 the Agency that they manage other
 hazardous wastes and (2) received an .
 EPA identification number. Virtually all
 commenters who addressed the
 notification requirement supported
 EPA's proposal. However, one state
 agency opposed the proposal, on the
 grounds that a waiver would hinder
 efforts to develop a more accurate and
 complete understanding of hazardous
 waste management practices within the
 United States.
   EPA has decided, as proposed to
 waive the notification requirement for
-TC waste handlers that have already
 notified the Agency that they manage
 hazardous wastes and have received an
 EPA identification number. The Agency
 believes that, given the vast scope of the:
 TC rule, a notification requirement for
 persons already identified within the
 hazardous waste management universe
 would present an administrative burden
 without providing any significant
 benefits to human health and the.
 environment.

 2. Effective Date
   Several commenters claimed that the
 6-month effective date of the TC rule
 would not provide them with sufficient
 time to come into compliance with the
 full array of hazardous waste       - ••_;;
 regulations. Some commenters argued
 that it would be impossible for      	
 generators of TC wastes to test their
 wastes, obtain EPA identification
 numbers, arrange for transport and off-
 site management of their wastes, modify
 their short-term storage (i.e.,
 accumulation) practices, and institute
 the necessary recordkeeping and
 reporting procedures within a 6-month .
 time frame. The commentera stated that
 the time constraints are especially.  ..-.	'
 unreasonable in light  of the shortages of
                           laboratory and TSDF capacity that can
                           be expected to result from the TC
                           revisions. Other commenters claimed
                           that TSDFs will require more  than 6
                           months to come into compliance with
                           the interim status standards of 40 CFR
                           part 265 (e.g., personnel training.
                           contingency planning, and financial
                           responsibility).
                             EPA appreciates the concerns of the
                           commenters, and the Agency  is  aware
                           that all of the commenters addressing
                           the effective date for the TC rule
                           encouraged EPA to adopt a delayed
                           effective date for most, if not all.
                           requirements. However. RCRA section
                           3010(b) requires that hazardous waste
                           regulations become effective 6 months
                           after the date of promulgation unless
                           EPA has good cause to establish an
                           earlier effective date. Thus, the effective
                           date for the final TC rule will  be 6
                           months from the date of promulgation.
                             However, EPA is promulgating
                           different compliance dates for two
                           different categories of waste generators:
                           (1) All generators of more than 100 and
                           less than 1,000 kg/month of hazardous
                           waste (small-quantity generators) must
                           come  into compliance with subtitle C
                           requirements for management of their
                           TC waste within one year of today; and
                           (2) all generators of 1.000 kg/month or
                           more of hazardous waste are required to
                           comply with all subtitle C requirements
                           for TC wastes within six months of
                           today, on the effective date of the rule-
                             All generators of over 1,000 kg/month
                           of hazardous waste are required to
                           comply with all applicable RCRA
                           regulations for their TC wastes on the
                           effective date of this rule. (The generator
                           quantity refers to all of a generator's
                           hazardous waste, not just newly
                           hazardous TC waste.) The Agency
                           recognizes that this compliance category
                           will include two groups of generators:
                           current hazardous waste generators,
                           including small quantity hazardous
                           waste generators who will be generating
                           additional hazardous wastes and
                           generators of large quantities  of solid
                           wastes who will be regulated  as  .
                           hazardous waste generators for the first
                           time. EPA believes that both of these
                           groups of generators should   .•;•.•;'.   :-,'
                           predominantly be large businesses and
                           either be familiar with the waste
                           management regula lions or be in a
                           position to come into compliance with
                           the requirements within the six month •
                           period. These persons should have been
                           aware of tlie Agency's statutory
                           commitment and have had ample notice
                           of the  impending TC rule through the
                           proposed rule and supplemental notices.
                             On the other hand, the Agency is
                           allowing an additional six months from
the effective date (i.e.. one year from
today) for generators of greater than 100
but less than 1.000 kg/month of
hazardous waste (small quantity
generators) to comply with all
applicable subtitle C regulations. (As
with the over 1.000 kg/month category,
this quantity refers to the total quantity
of a generator's hazardous waste, not
just newly hazardous TC waste.) The
TC has the potential to affect an
extremely large number of handlers that
never before have been subject to the
hazardous waste regulations: many of
these firms are small businesses.
Handlers that will assume small
quantity generator status as a result of
the TC rule are most likely not regulated
under subtitle C at the present time.
Thus, these handlers are less likely to be
familiar with the waste management
regulations, or because of their small
business status, will need more than six
months to come into compliance with
the regulations.
  As already indicated, these handlers
are likely to  be small entities and may
be unaware  that their practices, which
were not regulated in the past, will now
be regulated as a result of today's rule.
The Agency recognizes that these new
handlers of small quantities of TC
wastes (over 100 but less than 1.000 kg/
month) may  have to test their wastes.
obtain EPA identification numbers,
arrange for transport and off-site
management of their wastes, modify
their short-term storage (i.e..
accumulation) practices, and  institute
the necessary recordkeeping and
reporting procedures. As recognized by
the Agency in establishing special
requirements for small quantity
generators, the burden of initial
compliance may fall relatively harder on
these generators (see 51FR10146,
March 24.1988). Thus, to lessen the
burden on the handlers of small
quantities of TC wastes, the Agency has
developed an outreach program targeted
for the small quantity generators which
will inform new generators of the
required steps necessary to enter the
hazardous waste management system.
Effective program outreach, however,
will take more than 6 months.
  In amending RCRA in 1984, Congress.
in requiring EPA to promulgate
regulations for small quantity
generators, indicated that the Agency
should consider the impacts on small
businesses, while still providing
protection to human health and the
environment. While this rule is not
promulgated pursuant to this provision,
we believe the intent of Congress is for
the Agency (in promulgating any rule
substantially affecting small quantity
-------
            Federal Register / Vol. 55. No. 61  / Thursday, March  29. 1990 / Rules and Regulations      11843
generators) to consider such impacts
and to provide procedural adjustments
where appropriate. EPA believes that
extending the compliance date for this
group of generators will allow the
Agency time to provide necessary
assistance and outreach to these
generators and will allow sufficient time
for small quantity generators to comply
with the full range of applicable subtitle
C requirements. Finally, by delaying the
effective date of the TC for small
quantity generators, the Agency will be
able to concentrate its initial
implementation efforts on large quantity
generators, who will generate the vast
majority of waste brought into the
RCRA subtitle C system under this rule.
Thus, because the delayed compliance
date for small quantity generators
enables the Agency to focus its attention
on the waste generators expected to
produce the largest volumes of waste, it
maximizes protection of human health
and the environment.
  In summary, the Agency believes that
allowing an additional six months  for
small quantity generators to come  into
full compliance with the TC will serve
two purposes. First, it will allow the
Agency time to educate small quantity
generators on the RCRA rules, while^at
the same time, allowing the  Agency to
focus immediate implementation efforts
on large generators of hazardous waste.
Second, it will provide the necessary
time for small quantity generators to
comply with subtitle C requirements as
a result of the TC.
3. Permitting
  Several commenters expressed
concern that they would not be able to
submit required permit modifications
before the effective date of the rule.
Some commenters also expressed
concern that the TC revisions could
place a significant burden on the system
for permitting hazardous waste •
treatment, storage, and disposal
facilities.
 . The commenters recommended a
number of different mechanisms for
reducing the prospective burdens on the
permitting system, such as (1) Allowing
permitted facilities to operate under
interim status with respect to newly
regulated wastes: (2) handling requests
from permitted facilities to manage TC
wastes as minor permit modifications,
rather than as major permit
modifications (especially in the case of
facilities that are already permitted to
manage listed wastes containing TC
constituents); (3) requiring permitted
facilities to apply for major permit
modifications by the effective date of
the TC rule, but not requiring them to
actually obtain the modification until a
later date; or (4) delaying the effective
date of the final rule.
  EPA has promulgated amendments to
the procedures for permit modifications
for treatment, storage, and disposal
facilities on September 28,1988 (53 FR
37934). These changes td~the regulations
should generally allay the concerns
expressed by the commenters. Although
the new permit modifications rule will
not automatically be effective in
authorised states, EPA expects that
many authorized states will adopt the
provisions and EPA  plans to use the
new permit modification procedures  to
implement the TC. The new permit
modification procedures are further
explained in section V.

IV. Regulatory Levels
  The regulatory levels established in
today's rule are based on two
elements—the toxicity of each
constituent and the expected fate of the
constituent when released into the
environment. The latter element is
expressed as a dilution/attenuation
factor (DAF). which, when multiplied by
the toxicity value, results in the
regulatory level. It is this level that,
when compared to the results of the
TCLP. defines a waste as hazardous. If
the waste leachate generated through
the TCLP contains constituents equal to
or above the regulatory levels in today's
rule, the waste is a hazardous waste.
  This section summarizes the Agency's
basis for selecting the final list of
constituents and the regulatory levels
that are being promulgated in today's
rule.
A. List of Constituents
1. Proposed List
  The Agency initially proposed
regulatory levels for 38 new organic
constituents, proposed to modify the
regulatory levels for the six organic
constituents that are regulated under the
existing EPTC, and proposed to retain
the existing levels for the eight inorganic
constituents regulated in the existing
EPTC (see Table IV-1).
2. Constituents for Which Final
Regulatory Levels Are Not Now Being
Promulgated
  The model used to predict DAFs for
today's rule accounts for hydrolysis,
which may occur during the transport of
a constituent through the environment. If
a constituent hydroiyzes during
transport, its concentration will
decrease more rapidly than it would if it
were influenced by dispersion alone.
Therefore, the DAF for a constituent that
hydroiyzes during transport will be
higher  than that for a constituent that
does not hydrolyze. However, the
products that are formed because of
hydrolysis of the constituent also may
be toxic.
                    TABLE IV-1.—TC CONSTITUENTS AND REGULATORY LEVELS PROPOSED JUNE 13,1986
HWNO '
D016 	 	
D004 	 	 	
D005 	 _ 	
D0 19 	 _ 	
D020 	 	 	 _ 	
D006 	
D021 	 - 	
0022
0023 	 - 	 _
D024 '. 	
D02S 	
D007
D026
0027
0028 	 „ 	 _ 	 _ 	
0016 	 _ ........
D029 	 	
D030 	 _ 	
D031 	
Constituents
Acrylonitrife 	
Arsenic .

Benzene 	 . . . . 	
Bis(2-chloroethyl) ether 	

Carbon disulfide 	 . . 	
Carbon tetrachlortde ..... 	
Chlordane '
Chlorobenzene 	 .... 	 	
Chloroform



p-Cresol
2,4-D 	 „ 	 _ 	 _ 	
1 2-Oichlorobenzene

1.2-Dichloroethane 	
CASNO *
107-13-1
7440-38-2
7440-39-3
71-43-2
111_44_4
7440-43-9
75-15-0'
58-23-5
57.74.9
108-90-7
67-66-3
1333-82-0
95-46-7
106-39-4
106-44-5
94-75-7
• 96-50-1
106-46-7
107-08-2
Regulatory
level (mg/L)
5.0
5.0
100.0
0.07
0.05
1.0
14.4
0.07
0.03
1.4
0.07
5.0
1C.O
10.0
10.0
1.4
4.3
10.8
0.40
-------
11844      Federal. Register / Vol. 55, No. 61 / Thursday. March 29.  1990 / Rules and Regulations
               TABLE IV-1.—TC CONSTITUENTS AND REGULATORY LEVELS PROPOSED JUNE 13.1986—Continued
HWNO1
D032 	 „ 	
0033 	 „
D012 	 	 	 _ 	 „ .
R034. 	 	 	 	 	 	 .. . , , 	
DU3S 	 ',. 	
D036_ 	 	 „.
D037 	 _ .... ... _ .. 	
D038 	 	 , 	 ,.,,
0008 	 . _
D013 	 	 „ ._ „ „
noon
D014 	
0039 	 	 	 	 	 „ .. „.
0040 ..
D041 	 	 	 ,. 	
0042 	
D043 	
0044 	 __ 	 	
noio
non 	 	 	 	
D045 	 	 	 	 	 	 	 . ,.„ "_ 	
D046. 	 	 	 	 	 	 	 	 . 	 _.
D047... 	 	 	 	 	 ..,„ ,.., 	 	 ,_ „.
D04fl 	 	 , ,„•• , 	 ,..,
D04B
D015 	 	 	 ... _
0050 	 	 _
0051
DOS2 	 ,
0053 	 :.. 	 _. _. .
tV)S4 . . 	
DOI7 ..„, ., 	 	
DOfifl 	

Constituents
1 i-OcMoro^t^yleno
2 4-Dinitrotoluene . - 	 _ .._ 	 	 	 	 	 	

Heptachlor (and la hydroxide) .._._ ._ .. _. _. _
HtJKaCfMOfOfrenrer*? . ...

H
-------
Federal Register / Vol. 55, No.  61 / Thursday, March 29, 1990 / Rules and Regulations
                                                                                                              11845
levels for these constituents at their
current levels. When the MINTEQ
model (see IILB.S.c) is available to
accommodate these constituents, the
Agency will reconsider their regulatory
levels and propose new ones, if so
warranted.
B. Selection ofDAFs
  The selection of the appropriate DAF
for the constituents addressed in today's
rule is based on the municipal landfill
scenario, as proposed. However, based .
on comments on fate processes that
were not appropriately considered in the
model, several constituents have been
omitted from the proposed list of
constituents — specifically, those that
may hydrolyze to  more than a negligible
extent and those for which the steady-
state assumption may not be
appropriate.
  For the remaining constituents, the
Agency believes that a DAF of 100 is
appropriate for establishing regulatory
levels in today's rule. The basis for this
conclusion is explained in Section
C. Analytical Constraints
  The regulatory levels for the
compounds proposed for inclusion in the
TC span approximately five orders of
magnitude (i.e., fronfihe low parts per
billion to 100 parts per million}. The
calculated regulatory levels for three of
these compounds (2,4-dinitrotoluene,
hexachlorobenzene, and pyridine) are
below the concentrations measurable
using currently available methods.
  EPA believes that the appropriate
way to deal with a calculated regulatory
level that is below the analytical
detection limit is to use (for the
regulatory level) the lowest level of
detection that can be attained. The
lowest level of a particular chemical
that  can be reliably measured within
acceptable limits of precision and
accuracy under routine laboratory
operating conditions is that chemical's
"quantitation limit." A quantitation limit
is determined through such studies as
method performance evaluations.
                              If data from interlaboratory studies
                            are unavailable, quantitation limits are
                            estimated based on the detection limits
                            and an estimated multiplier that
                            represents a practical and routinely
                            achievable level with relatively high
                            certainty that the reported value is
                            reliable. EPA proposed to use a value of
                            five times the analytical detection limit
                            as the quantitation limit and to set the
                            regulatory level at the quantitation limit
                            for those compounds for which the
                            calculated regulatory level is below the
                            quantitation limit and interlaboratory
                            studies were not available.
                              Because TCLP extracts are aqueous in
                            nature, the quantitation limits used in
                            this rule are based on the presence of
                            these compounds in a water matrix. The
                            Agency received many comments on the
                            use of the quantitation limit as the
                            regulatory level for the three compounds
                            with health-based thresholds below that
                            level. Most commenters expressed
                            concern that quantitation limits based
                            on analysis of the constituent in a water
                            matrix may not be achievable in more
                            complex samples. The comments
                            discussed potential complications that .
                            could hamper analysis of various kinds
                            of wastes and recommended  that EPA
                            work toward determining actual
                            quantitation limits on real wastes.
                              The Agency agrees that the ability to
                            achieve the quantitation levels listed in
                            the proposed rule is strongly influenced
                            by the type of waste that is being
                            analyzed. However, determination of a
                            matrix-dependent quantitation limit
                            would require analysis of a wide variety
                            of wastes. EPA believes that it would be
                            impractical to perform-such waste-
                            specific analyses at this time. Therefore,
                            EPA has chosen to use the proposed
                            definition (i.e.,  five times the method
                            detection limit) for the quantitation
                            limit.,
                              A number of commenters addressed
                            the issue of the generic multiplier used
                            to derive the quantitation limit. Several
                            commenters recommended using 10 to
                            25 times the detection limit as the
                            regulatory level, while a few
                            commenters supported setting the
regulatory level at the detection limit
itself, to provide what they believe
would be greater environmental
protection.
  The Agency is working to improve th«
sensitivity of analytical methods to
provide increased protection of human
health and the environment. Analytical
detection limits are, by definition, not
routinely achievable under average
laboratory conditions. Thus, a
regulatory level set at the detection limi|
would be difficult for the Agency to
enforce and would make it difficult for
the regulated community to demonstrate
compliance. To provide a consistently
enforceable regulatory limit while
providing assurance that those wastes
that clearly pose hazards are subject to
subtitle C requirements, the Agency will
set the regulatory level at five times the
detection limit. The Agency has a high
degree of confidence in setting the
regulatory level at the quantitation limit
(i.e., five times the detection limit)
because other programs within the
Agency have successfully used this
method in the past to .set regulatory
levels (e.g., the Contract Laboratory
Program under the Superfund Program).
  Comments on the use of the
quantitation limit are addressed more
extensively in the testing methods
background document.

D. Final Regulatory Levels

  The regulatory levels being
promulgated today are equal to the
product of each constituent's toxicity
threshold and the DAF or the
quantitation limit. These regulatory
levels are presented in Table IV-3.
These levels are designed to identify
wastes that clearly pose a hazard and
define those wastes as hazardous.
However, it should be noted that wastes
that do not exhibit this characteristic
(e.g., result in TCLP levels that are less
than the regulatory levels) are not
necessarily nonhazardous and may be
listed as a hazardous waste or become
hazardous under other hazardous waste
characteristics.
                      TABLE IV-3.—Toxicrnr CHARACTERISTIC CONSTITUENTS AND REGULATORY LEVELS
EPA HW number >
D004
D005
D018 	 	 	 _. 	 	
0006.. 	 .
0019 	 	
D020 	 „.. 	 	 	 _ 	 „ ...
D021 	 	 	 „ 	 	
D022
0023 	
Constituent


Benzene . 	
Cadmium . «... .. , ; 	 ...........
Carbon tetracnloride 	 _.__.„.. 	 	 „...„ 	 	
Chlordane 	 	 ... 	 « 	
Chloroform 	 ..„.„».„„ 	 . 	 .... 	 	 	 „..«„ 	 «... 	
o-Cresol - . 	
CAS
Number*
7440-38-2
7440-39-3
71-43-2
7440-43-9
56-23-5
57-74-9
108-90-7
67-66-3
744O-47-3
95-48-7
Regulatory
level (mg/L)
5.0
100.0
0.5
1.0
0.5
0.03
100.0
6.0
5.0
« 200.0
-------
11846      Federal Register / Vol.  55.  No.  61 / Thursday. March 29. 1990  / Rules and Regulations

                 TABLE IV-3.—TOXICITY CHARACTERISTIC CONSTITUENTS AND REGULATORY LEVELS—Continued
EPA HW number '
0024 	
D025 	 _ 	 _ 	
DC26_ 	 	 	 	 	 	 	
D016 	 . _ ' .
C027 	
D028 	
D029 	
D030 	 „ 	 _. 	 .._ 	
D012 	 	 	 _ 	 	 	 _. .. ,
D031 	
D032 	
0033 	
0034
D008 	 	 	 	 	 	 „. _. 	
0013 	 	
D009 	
D014 	
0035.. 	 _ 	 _. ... _.
D036 	 _ _.
D037 	 	 _
D038 	 _ 	 	
0010 	 _.. .
0011 	 _ 	 	 	 	 __ _ 	
0039 	 	 .
0015 	 _ 	 _. ..
0040 	 	
0041 	 _. .
0042 	 _. . „..
D017 	
0043 	

Constituent
ovOresol
p-Creso)- 	 - 	
Creso) 	
2 4.0 	 : 	 	 	 	 	 _ 	 „..
1 4-DichlorDbenzenG. »•« .... — - 	 	 - 	
1 2-Dichloroflthane 	 	 _ 	
1 1-Dichloroethylene . . _...___.. _.
2 4-Dinitrotoluene 	 	 	 	 	 	 ~ 	

Heptacnlor (and its hydroxide) .... » . 	 	 .. 	 .. 	
HexacrtoroDonzerMj 	 	 	 	 	
Hexachtoro-1 3-butadiene. — ..—-. «
Hexacriloroethane 	 .... 	 	 	 	
Lead 	 _ 	
Lindane 	 	 	 	 ...... .... 	
Merevy.,,,, ,- ,- - , ~, -,„ -„„ ... „, „„ - -.„--, 	 „ ----- -
MettioKytyty , ,. ,-,. ... -„ ... .... .... ... — -, ,— ,. .
Methyl ethyl ketone _ _ 	 _ . .
Nitrobenzene 	 	 	 	 	

Pyndine

Silver 	 	 	 	 	 	 	 _. 	 .
Tetrachhxoothylene 	 _ 	
Tox&phone
Tricntofwthytene 	 	 	 	 	
2 4 £-Trir.h(ftfQpnflno|
2 4 6-Trichlorophenol.. ... _ 	 _ 	 	 	
2.4.S-TP (Sflvex) 	 „ 	 	 	 _ 	 „ 	 	
VTnyl chloride

CAS
Number'
108-39-4
106-44-5

94-75-7
106-46-7
107-06-2
75-35-4
121-14-2
72-20-8
76-44-8
1 18-74-1
87-68-3
67-72-1
'439-92-1
58-89-9
7439-97-6
72-43-5
78-93-3
98-95-3
87-86-5
110-66-1
7732-49-2
7440-22-4
127-18-4
8001-35-2
79-01-6
95-95-4
88-06-2
93-72-1
75-01-4

Regulatory
level 
-------
            Federal Register  /  Vol.  55.  No. 61  /  Thursday. March 29. 1990 / Rules  and Regulations     11847
administer and enforce the RCRA
program within the state [see 40 CFR
part 271 for the standards and
requirements for authorization).
Following authorization, EPA retains
enforcement authority under sections
3008. 7003 and 3013 of RCRA. although
authorized states have primary
enforcement responsibility. Prior to
HSWA, a state with final authorization
administered its hazardous waste
program entirely in lieu of the federal
program.  The federal requirements no
longer applied in the authorized state.
and EPA  could not issue permits for any
facilities  in a state that was authorized
to issue permits. When new, more
stringent  federal requirements were
promulgated or enacted, the state was
obligated to enact equivalent authority
within specified time frames. New
federal requirements did not take effect
in an authorized state until the state
adopted the requirements as state law.
  In contrast, under section 3006(g) of
RCRA, 42 U.S.C. 6926(g), new
requirements and  prohibitions imposed
by HSWA take effect in authorized
states at  the same time that they take
effect in nonauthorized states. EPA is
directed to carry out those requirements
and prohibitions in authorized states.
including the issuance of permits, until
the state  is granted authorization to do
so. While states must still adopt HSWA-
related provisions as state law to retain
final authorization, the HSWA
requirements are implemented by EPA
in authorized states in the interim,
  Today's rule is promulgated pursuant
to RCRA section 3001 (g) and (h). These
provisions were added by HSWA.
Therefore, the Agency is adding the
requirement to Table 1 in § 271.1(j),
which identifies the federal program
requirements that  are promulgated
pursuant to HSWA and that take effect
in all states, regardless of their
authorization status. States may apply
for either interim of final authorization
for the HSWA provisions identified in
Table 1, as discussed in the following
section of this preamble.
2. Effect on State Authorization
  As noted above, EPA will implement
today's rule in authorized states until
they modify their programs to adopt
these rules and the modifications are
approved by EPA. Because the rule is
promulgated pursuant to HSWA, a state
submitting a program modification may .
apply to receive either interim or final
authorization under section 3006(g)(2) or
3006(b), respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for state
program modifications for either interim
or final authorization are described in 40
CFR 271.21. It should be noted that all
HSWA interim authorizations will
expire January 1,1993 (see 40 CFR
271.24(c)).
  40 CFR 271.21(e)(2) requires that
states with final authorization must
modify their programs to reflect federal
program changes, and they must
subsequently submit the modifications
to EPA for approval. The deadline for
state program modifications for this rule
is July 1.1991 (or July 1,1992, if a state
statutory change is needed). These
deadlines can be extended in certain
cases (40 CFR 271.21(e)(3)). Once EPA
approves the modification, the state
requirements become subtitle C RCRA
requirements. States with authorized
RCRA programs may already have
requirements similar to those in today's
rule. These state regulations have not
been assessed against the federal
regulations being promulgated today to
determine whether they meet the tests
for authorization. Thus, a state is not
authorized to implement these
requirements in lieu of EPA until the
state program modification is approved.
Of course, states with existing standards
may continue to administer and enforce
their standards as a matter of state law.
In implementing the federal program,
EPA will work with states under
cooperative agreements to minimize
duplication of efforts. In many cases,
EPA will be able to defer to the states in
their program implementation efforts,
rather than take separate actions under
federal authority.
  States that submit their official
applications for final authorization less
than 12 months after the effective date
of these standards are not required to
include standards equivalent to these
standards in their application. However,
the state must modify its program by the
deadline set forth in § 271.21(e). States
that submit official applications for final
authorization 12 months after the
effective date of these standards must
include standards equivalent to these
standards in their application. The
process and schedule for final state
authorization applications is described
in 40 CFR 271.3.

B. Integration of Today's Final Ru'e
with Existing EPTC

  As explained above, because this rule
is promulgated pursuant to HSWA. it
will be effective six months from todajM
in both authorized and unauthorized
states and will be implemented by EPA
until states receive authorization for thi»
rule. Thus, beginning on the effective
date, large quantity generators that
generate  TC waste in all states are
responsible for complying with the    ^
appropriate requirements. However, ttfl
rule promulgated today also revises arffl
existing RCRA rule defining hazardous
wastes that authorized states have been
implementing for some time. The two
principal changes in the rule are the
revision to the leaching procedure, by
replacing the EP with the TCLP, and ths
addition  of constituents for which the
leachate  will be analyzed. The
discussion below and Table V-2
describe  how state implementation of
the existing EPTC will be integrated
with EPA implementation of the TC as
promulgated today.

1. Facilities Located in Authorized
States

  There are three types of facilities
located in authorized states which are
affected by today's rule: facilities whicjfl
are already operating under a RCRA
permit, facilities which  are already
operating under interim status, and
facilities which are subject to RCRA  an
permit requirements for the first time a!||
a result of today's rule. Permitted and
interim status facilities can also be
affected  by today's rule in three distinct
ways: (1) The facility may already be
managing wastes that are hazardous
under the existing EPTC. (2) the facility
may already be managing wastes that
are hazardous under the existing EPTC
but which also exhibit the toxicity
characteristic for a new constituent(s)
under today's rule (and thus the waste
would have a new waste code), or (3)
the facility may be managing a solid
waste which is newly subject to
regulation as a result of today's revision
of the TC. Table V-2 summarizes the
initial filing requirements and applicabj]
standards for each category of facility.
-------
11848      Federal Register / Vol.  55. No. 61  /  Thursday, March  29.  1990 / Rules and Regulations
                                  TABLE V-2.—INTEGRATION OF TC WITH EXISTING EPIC
Status of State authorization
i. Authorized State


II. No 'autixxtred State





Facility status
A. Remitted

B Interim Status
C. Newly-regulated....
A. Permitted




C. Newly-regulated....
Type of waste
1 Regulated EPA
waste w/no new
constituents under
revised TC.
2. Regulated EP waste
w/new constituents.
3. Previously
unregulated waste in:
-Already regulated
unit
-Previously
unregulated unit
1 Regul&l&d cP waste
w/no new
constituents under
revised TC.
2. Regulated EP waste
w/new constituents
under revised TC.
3. Previously
unregulated waste.
1 Regulated EP waste
w/no new
constituents under
revised TC.
2. Regulate EP waste
w/new constituents
under revised TC.
3. Previously
unregulated waste in:
-Already regulated
unit
-Previously
Uivb^utated unit
1 Regulated EP waste
w/no new
constituents under
revised TC.
2. Regulated EP waste
under revised TC.
3. Previously
unregulated waste.
What to file
NA .. .. _
Class 1 permit
modification under 40 '
CFR 270.42.
Class 1 permit
modification under 40
CFR 270.42.'
NA 	 „„., 	 , 	 	 , „
Revised Part A under
40 CFR 270.72.
Revised Part A under
40 CFR 270.72.*
Part A and 3010 under
40 CFR 270.70.'
NA 	
Class 1 permit
modification under 40
CFR 270.42.
Class 1 permit
modification under 40
CFR 270.42.'

MA
Revised Part A under
Revised Part A under
40 CFR 270.7Z'
Part A and 3010 under
40 CFR 270.70."
Where to file
NA 	
EPA Regional Office
and Siate.
EPA Regional Office
and State.
NA 	 	 	 ;
EPA Regional Office
and State.
EPA Regional Office
and State.
EPA Regional Office 	
NA
EPA Regional Office 	
EPA Regional Office 	

NA 	 	
EPA Regional Office 	
EPA Regional Office 	
EPA Regional Office 	
Applicable permitting
standards
State permit standards.
Slate permit standards.
State permit standards.
40 CFR Part 265.
State biteriin status
standards.
State interim status
. standards.
40 CFR Part 265.
40 CFR Part 265.
40 CFR Part 264
40 CFR Part 265.
40 CFR Part 264.
40 CFR Part 265.
40 CFR Part 265.
40 CFR Part 265.
40 CFR Part 265.
40 CFR Part 265.
   1 Facility may also need to receive a Class 2 or Class 3 modification under CFR 270.42.
   1 If newly regulated waste is being managed in a land disposal unit facility may need to submit certification of compliance within one year under 40 CFR 270.73.
   9 If facility is a land disposal facility. Part B permit application and cenfication of compliance must be submitted w:ihm one year under RCRA Section 3005(eM3)
and 40 CFR 270.73.
  For facilities which have been
managing EPTC wastes under an
authorized state program and the
constituents exhibited by the wastes are
unchanged under today's rule, (i.e.. no
waste code change is necessary), such
interim status and permitted facilities
have no changes to file with permitting
authorities. Similarly, since the
regulatory status of the waste is
unchanged, management of that waste
will continue to be regulated under the
authorized state standards. The only
effect of today's rule on such facilities is
that the facility must use the TCLP when
testing for toxic constituents. However.
use of the EP in addition to the TCLP
may continue to be required as a matter
of state law.
 .For facilities which have been
managing EPTC wastes under an
authorized state program and the
constituents exhibited by the wastes
have changed as a result of today's rule.
the facility will need to change the
waste code assigned to its TC wastes.
Permitted facilities must submit permit
modifications to EPA reflecting the new
wastes codes. Because EPA must
implement this rule until the state is
authorized to do so, the permittee must
comply with federal permit modification
procedures under 40 CFR 270.42 rather
than state permit modification
procedures. However, because the
permit undergoing modification is most
likely a joint EPA-state RCRA permit, a
copy of the modification request should
also be submitted to the authorized
state. Similarly, interim status facilities
must submit a revised part A permit
application to EPA pursuant to 40 CFR
270.72. with a copy to state permitting
authorities. Although these facilities
must make appropriate waste code
modifications to reflect the new TC
constituents, the wastes are already
regulated as EP wastes under the
authorized state program. Accordingly,
such wastes are not subject to any new
management requirements as a result of
this rule and must continue to comply
with appropriate authorized state
-------
            Federal Register / Vol. 55, No. 61  / Thursday, March  29. 1990 / Rules  and  Regulations      11849
requirements for management of these
wastes.
  Some permitted and interim status
facilities in authorized states will be
managing wastes which will become
hazardous as a result of today's rule.
These facilities must also submit permit
modifications or part A permit
application revisions to EPA. However,
because these wastes were previously
unregulated under RCRA, they also
were not regulated under the authorized
state program. As a result, if these
wastes are in a previously unregulated
unit, they will be subject to the self-
implementing Federal standards for
hazardous wastes management at 40
CFR part 265 until permit issuance (for
interim status facilities) or modification
(for permitted facilities). After permit
issuance or modification, the Federal
permitting standards at 40 CFR part 264
will apply to these wastes (or the state
permitting standards if the permit is
ultimately issued or modified by a state
authorized for the TC). However, if the
wastes are at a permitted facility in a
unit that is already regulated, that unit
will continue to comply with the
applicable 40 CFR part 264 (or state
equivalent) standards.
  Facilities in authorized states which
are newly subject to RCRA permit
requirements as a result of todays rule
must obtain an EPA identification
number and submit their part A permit
application and section 3010 notification
to EPA in order to obtain interim status
(see 40 CFR 270.70). Such facilities are
subject to regulation under 40 CFR part
265 until a permit is issued by EPA or  a
state authorized for the TC.

2. Facilities Located in Unauthorized
States
  There are also three types of facilities
located  in unauthorized states which are
affected by today's rule: already
permitted facilities, facilities operating
under interim status, and facilities
newly subject to RCRA permit
requirements under today's rule. As in
authorized states, some of the permitted
and interim status facilities have been
managing EPTC wastes.
  For interim status and permitted
facilities which have been managing
EPTC wastes that will exhibit no new
constituents as a result of the
replacement of the EP with the TCLP
and the addition of constituents to the
TC, there will be no waste code
changes. Accordingly, such facilities do
not need to submit permit modifications
or revised permit applications to EPA
and will continue to be subject to the
applicable federal standards for
hazardous waste management.
  Facilities which have been managing
EPTC wastes which exhibit the toxicity
characteristic for new constituents as a
result of today's changes to the TC must
notify EPA of the waste code changes
for its TC wastes. Permitted facilities
must submit permit modifications to
EPA as required under 40 CFR 270.42
that reflect the new wastes codes.
Interim status facilities must submit
revised part A permit applications in
accordance with 40 CFR 270.72. These
facilities must continue to comply with
the applicable federal standards for
hazardous waste management.
  Permitted  and interim status facilities
which manage waste that is newly
defined as hazardous waste as a result
of today's rule must  also submit permit
modification requests or part A permit
application revisions to EPA. Facilities
must manage these wastes in
accordance with 40 CFR part 265 or 40
CFR part 264 until permit modification
or issuance,  depending on whether the
waste is managed in a newly regulated
or previously regulated unit.
  Facilities which are newly subject to
RCRA permit requirements as a result of
today's rule must get an EPA
identification number and a part A
permit application to EPA in order to
obtain interim status. Such facilities are
subject to regulation under 40 CFR part
265 until a permit is issued.
C. Notification
  Pursuant to RCRA section 3010, the
Administrator may require all persons
who handle hazardous wastes to notify
EPA of their hazardous waste
management activities within 90 days
after the wastes are  identified or listed
as hazardous. This requirement may be
applied even to those generators,
transporters, and TSDFs who have
previously notified EPA with respect to
the management of other hazardous
wastes.
  In the June 13,1986, Federal Register
notice, EPA proposed to waive the
notification requirement for persons
who manage TC wastes and have
already (1) notified the Agency that they
manage other hazardous wastes and (2)
received an EPA identification number.
EPA has decided to waive the
notification requirement as proposed.
The Agency believes that, given the vast
scope of the TC rule, a notification
requirement for persons already
identified within the hazardous waste
management universe is unnecessary.
  EPA is not waiving the notification
requirement for TC waste handlers that
have neither notified the Agency that
they manage hazardous wastes nor
received an EPA identification number.
Those persons must notify EPA no later
.than June 27,1990 of these activities
pursuant to section 3010 of RCRA.
Notification instructions are set forth in
45 FR 12746, February 26,1980.
D. Permitting
  Currently permitted facilities that
manage TC wastes must submit Class 1
permit modifications if they are to
continue managing the newly regulated
wastes in units that require a permit.
The facilities must obtain the necessary
modification by the effective date of the
rule, or they will be prohibited from
accepting additional TC wastes.
  Interim status facilities that manage
TC wastes  in units that require a  permit
must file an amended part A permit
application under 40 CFR 270.10(g) if
they are to  continue managing newly
regulated wastes. The facilities must file
the necessary amendments by the
effective date of the rule, or they  will no!
receive interim status with respect to the
TC wastes  (i.e., they will be prohibited
from accepting additional TC wastes
until permitted).
  Newly regulated facilities (i.e.,
facilities at which the only hazardous
wastes that are managed are newly
regulated TC wastes) must qualify for
interim status by the compliance  date of
the rule in order to continue managing
TC wastes  prior to receiving a permit.
Under 40 CFR 270.70, an existing  facility
may obtain interim status by getting an
EPA identification number and
submitting  a part A permit application.
To retain interim status, a newly-
regulated land disposal facility must
submit a part B permit application
within one  year after the effective date
of the rule and certify that the facility is
in compliance  with all applicable ground
water monitoring and financial
responsibility requirements (see RCRA
section 3005(e)(3)).
  EPA recently promulgated
amendments to the procedures for
permit modifications for treatment,
storage, and disposal facilities (see 53
FR 37934. September 28,1988). The
following discussion assumes
implementation in accordance with the
new rule. EPA will implement the TC by
using the new permit modification
procedures, consistent with EPA  policy
(see 53 FR  37933, September 28,1988).
  Under the new regulation in § 270.42.
there are now three classes of permit
modifications with different submittal
and public  participation requirements
for each class. In § 270.42(g), which
concerns newly listed or identified
wastes, a permitted facility that is "in
existence" as a hazardous waste facility
for the newly listed or identified  waste
on the effective date of the notice must
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11850      Federal Register /  Vol.  55. No. 61 / Thursday. March 29.  1990 / Rules and Regulations
submit a Class 1 modification by that
date. Essentially, this modification is a
notification to the Agency that the
facility is handling the waste. As part of
the procedure, the permittee must also
notify the public within 90 days of
submitta! to the Agency.
  Next, within 130 days of the effective
date, the permittee must submit a Class
£ or 3 modification to the Agency. A
permittee may submit a Class 2
modification if the newiy regulated
waste wiii be disposed in existing TSO
units and will not require additional or
different management practices from
those authorized in the permit. A Class Z
modification requires public notice by
the facility owner of the modification
request, a 60 day public comment
period, and an informal meeting
between the owner and the public
wiihin the 60 day period. The rule
includes a "default provision," so that
for Class 2 modifications, if the Agency
does not make a decision within 1ZO
cijys. the modification is automatically
authorized for 180 days. If the Agency
does not reach a decision by the end of
that period, the modification is
permanently authorized. If the newiy
regulated waste requires additional or
different management practices, a Class
3 modification is required. The initial
public notification and public meeting
requirements are the same as for Class
2. However, after the end of the public
comment period, the Agency will
develop a draft permit modification,
oper. a  public comment period of 45
days sr.d hold a public hearing.

£". Compliance Date
  The Agency is promulgating two
different compliance dates for two
different categories of TC waste
generators: (1) All generators of greater
than 100 and less than 1.000 kg/month of
hazardous waste (small-quantity
generators) must come into compliance
with subtitle C requirements for
management of their TC waste within
one year from today; and (2) all
.Generators of 1,000 kg/month or more of
hazardous waste and TSDFs are
required to comply with all subtitle C
requirements for TC wastes within six
months from today, on the effective date
of the rule. Thus the EPTC remains in
effect until six months after today's date
fur large quantity generators and TSDFs,
and remains in effect for 12 months after
today's date for small quantity
generators. The generator quantity
refers to all of a generator's hazardous
waste, not just newly hazardous TC
waste.
  Further discussion of the Agency's
reasons for promulgating an extended
compliance date for small-quantity
generators is provided in section II!.K of
this preamble. In summary, the Agency
believes that allowing an additional six
months for small quantity generators to
come into full compliance with the TC
will serve two purposes. First, it will
allow the Agency time to educate small
quantity generators on the RCRA rules
while, at the same time, allowing the
Agency to focus immediate
implementation efforts on large volumes
of hazardous waste. Second, it will
provide the necessary time for small
quantity generators to comply with
subtitle C requirements as a result of the
TC.

VI. Regulatory Requirements

A. Introduction
  This portion of the preamble discusses
the analyses required by Executive
Order No. 12291 and the Regulatory
Flexibility Act. The Agency is required
under the Executive Order to estimate
the costs, economic impacts, and
benefits of "major" rules by conducting
a regulatory impact analysis (RIA).
Recognizing the potential of the Toxicity
Characteristic (TC) rule to affect a broad
spectrum of American industry, EPA
prepared an RIA comparing several
regulator}' alternatives. Based on the
results of this analysis, the Agency
concluded that this final regulation is a
major rule. Section VLB presents the
methodology and results of the RIA.
  The Regulatory Flexibility Act
requires the Agency to assess small
business impacts resulting from
regulations. The analysis of small
business impacts indicated that the TC
rule would not have a significant impact
on small businesses, and therefore a
formal regulatory flexibility analysis
was not prepared. Section VI.C
addresses potential effects on small
businesses.
  The Agency received many comments
on the RIA for the June 13.1986
proposal. A summary of comments,
along with Agency responses, is
included as section VI.O. Section VI.E
discusses requirements under the
Paperwork Reduction Act
  Details of the regulatory impact
analysis and small business analysis are
available in the RIA document for the
final rule (Ref. 6). This final rule was
submitted to the  Office of Management
and Budget for review as required by
E.O. No. 12291.
B. Regulatory Impact Analysis

1. Executive Order No. 12291
  Executive Order No. 12291 requires
EPA to assess the effect of Agency
actions during the development of
regulations. Such an assessment
consists of a quantification of the
potential costs, economic impacts, and
benefits of a rule, as well as a
description of any beneficial or adverse
effects that cannot be quantified in
monetary terms. In addition. Executive
Order No. 12291 requires that regulatory
agencies prepare a regulatory impact
analysis (RIA) for major rales. Major
rules are defined as those likely to result
in (1) an annual cost to the economy of
SlOO million or more; (2) a major
increase in costs or prices for consumers
or individual industries; or (3) significant
adverse effects on competition.
employment, investment, innovation, or
international trade.
  EPA prepared an RIA comparing the
final TC rule with several regulatory
alternatives. Based on the RIA. EPA
estimates that the final TC rule is a
major rule with annual compliance costs
of between $130 million and $400
miiiion. The analysis was conducted
based on the Office of Management and
Budget's "Interim Regulatory Impact
Analysis Guidance" and EPA's
"Guidelines for Performing Regulatory
Impact Analyses."

2. Basic Approach

  In the final rule, EPA  is amending its
hazardous waste identification
regulations under Subtitle C of the
Resource Conservation  and Recovery
Act (RCRA) by refining and expanding
the existing Extraction Procedure
Toxicity Characteristic  (EPTC). The
resulting TC includes a  new extraction
procedure (the Toxicity Characteristic
Leaching Procedure or TCLP) and 25
new organic constituents in addition to
the 14 existing EPTC constituents.
Wastes exhibiting the TC, based on
concentrations of constituents in the
TCLP extract, are designated as
hazardous wastes and are  brought under
subtitle C regulation.
  EPA estimated the costs, economic
impacts, and benefits of the final rule
and of a number of major regulatory
alternatives to the rule. Only the
anticipated effects of the final rule are
presented in this preamble; results for
the regulatory alternatives are discussed
in the RIA. In presenting the results of
the analysis, the Agency has presented
range estimates for costs, economic
impacts, and benefits to express the
uncertainty associated with certain
analytical assumptions.
  In order to gauge the effects of the
final rule, EPA first identified wastes
and industries which would be affected
by the rule. Incremental costs for
affected facilities were  estimated based
on the change in waste  management
practices which would be required once
-------
            Federal Register / Vol. 55. No. 61  / Thursday. March 29. 1990 / Rules  and Regulations      11851
the wastes became hazardous. These
incremental costs were aggregated to
estimate national costs of the rule.
  Economic impacts on facilities were
based on a comparison of facility
compliance costs with costs of
production and cash from operations.
The potential for facility closures was
also examined.
  Benefits, like costs, were based on
required changes in waste management
practices. Benefit measures included
human health risk reduction, resource
damage reduction, and cleanup costs
avoided. Facility-level benefit estimates
were aggregated to obtain national
benefits.
  Section VI.B.3, below, presents the
methodology  used to estimate costs,
economic impacts, and benefits. It also
briefly describes the sensitivity analyses
that were conducted to determine the
significance of key analytical
assumptions;  these sensitivity analyses
are discussed in more detail in the RIA.
Limitations of the analytical approach
(e.g., assumptions which are likely to
overstate, understate, or create
uncertainty in results) are discussed in
the RIA. Results of the analysis of costs,
economic impacts, and benefits are
provided in section VI.B.4.
3. Methodology
  The methodology for the RIA is
presented in several parts. First, the
procedure for identifying wastes and
facilities affected by the TC is
discussed. Next,  the development of
national cost  estimates is presented. The
section on economic impact
methodology  describes the criteria used
in gauging impacts on the regulated
community. Following that is a section
that presents  several alternative
measures of benefits of the rule. The last
section describes the methodology for
analysis of used oil.
  a. Determination of Affected Wastes
and Facilities. The first step in
estimating the impacts of the rule was to
determine which wastes and facilities
would be affected by the rule, based on
waste characteristics, quantities, and
management practices. No single data
source contained all of this information,
and none of the data were facility-
specific. Therefore, the Agency
assembled aggregated data (e.g., by
industrial sector) from separate sources
and used it to draw inferences on
facility-level impacts.
  Data on waste characterization and
volume came primarily from a series of
TC industry studies. (Ref. 19 through 29)
These studies were conducted for major
industrial categories identified as likely
to generate significant quantities of TC
wastes; other sectors, generating smaller
quantities of potentially affected waste,
were not addressed. Standard Industrial
Classifications (SICs) for the industrial
sectors studied range between the two-
digit and four-digit levels. The industries
profiled are shown in Table VI-1.

TABLE VI-1.—POTENTIALLY AFFECTED IN-
  DUSTRIES  CONSIDERED  IN  RIAs  FOR
  THE PROPOSED AND FINAL TC RULES
Industry
Textile Mills *...........
Lumber and Wood
Products.9
Pulp and Paper * ....

Printing and
Publishing.
Plastics Materials
and Resins.1
Synthetic
Rubber.'.
Synthetic Fibers.*...
Pharmaceuticals. * ._
Soaps and Other
Detergents.
Surface Active
Agents.
Paints and Allied
Products.
Organic
Chemicals.*
Agricultural
Chemicals.
Petroleum
Refining.*
Miscellaneous
Petroleum and
Coal Products.*
Rubber and
Miscellaneous
Plastics
Products.*
Non-Ferrpus Wire
Drawing and
Insulation.
Machinery and
Mechanical
Products.
Fipolinos, oxc8pt
Natural Gas.2
Electrical Services..
wholesale
Petroleum
Marketing.*
SIC'
22 	 _.
2421 ; 2499 	

261, 262. 263.
266.
27 	

2821 	

2822. 	

2823, 2824. 	
283 	
2841 	

2843 .—__.__.

2851 	

2865, 2869 	

2879 	

2911 _....._.„__..

2992


?n



3357 	


34 through 39..


461 _. „_

4911 	 ,..„
517 	


Pro-
posed

.„„„»....

	 _„.

...._.«.«.

X

X

..„„.„.„„
X
X

X

X

X

X

X








X


..............








Final
X
X

X

X

X

X

X
X






X



X

X


X






X


X

X
X


  1 SICs listed are those defining the group consid-
ered in this analysis. SICs given at the two-digit or
to all four-digit SICs contained within the broader
category              .                 C
  * Included in detailed quantitative analysis for the
final RIA.      :.-•:.. ....,,  •..,„:• -

  The industry studies provided data
including waste type (wastewater,
sludge, solid process residual, or organic
liquid), waste quantity, constituent
concentration ranges and distributions,
and number of generating facilities. The
data in the studies were  based primarily
on EPA's effluent guidelines reports,
supplemented by best engineering
judgement and data received in
comments on the proposed rule or in.
follow-up correspondence (Refs. 30 and
31). Most of the wastes which were
included were related to wastewater
treatment; there was relatively little
data on process residuals. Wastes which
were already hazardous by virtue of a
listing or characteristic (e.g., the EPl'C)
were not included. Due to lack of data.
certain types of wastes were not
included in the analysis (e.g.,
contaminated soil, off-spec products,
contaminated debris).
  It is particularly difficult to predict the
behavior of oily wastes in the TCLP test
For the purpose of deriving upper bound
estimates of costs, economic impacts,
and "benefits, one assumption that EPA
adopted was that  oily non-liquid wastes
would not present filtration problems in
the TCLP (i.e., that the oily phase passes
through the filter and hazardous
constituents in the oil phase leach to the
test extract) and that if extract
concentrations exceeded regulatory
levels, these wastes would fail the TC.
As a basis for lower bound estimates for
costs, economic impacts and benefits,
the Agency assumed that no oily wastes
will be caught by TC regulation because
the oily phase (and corresponding high
levels of toxic constituents) would not
filter through to the  extract in the TCLP.
  Due to the lack  of facility-specific
waste generation  data, certain
assumptions had to  be made to derive
the quantity of each wastestream per
facility. First, potentially affected
facilities within each industrial sector
were split between small (with less than
50 employees) and large (with 50
employees or more) facility size
categories based on 1982 Census of
Manufacturers data on the number of
facilities by size category. (The 1982
Census data were the most recent
available.) Second, the total quantity of
potentially affected waste was
distributed between small and large
facilities based on Census of
Manufacturers data on the value of
shipments for the small and large size
categories. Using  the distribution of
facilities and of total waste quantity
between small and large size categories,
EPA estimated wastestream quantity
per facility for small and large facilities.
  EPA conducted a  sensitivity analysis
in order to test the sensitivity of results
to the assumed distribution of wastes
based on value of shipments. Since the
division of waste  quantities based on
value of shipments resulted in most
waste being generated by large
facilities, EPA tested the alternative
assumption that waste quantities were
split evenly between the large and small
facility size categories in each industry.
(Results of sensitivity analyses are
presented in section VI.B.4.)
-------
 11852      Federal Register / Vol. 55. No. 61 / Thursday, March 29.  1990 / Rules and Regulations
   Baseline management practices (i.e.,
 management practices in the absence of
 the regulation) were derived primarily
 from the Screening Survey of Industrial
 subtitle D Establishments. (Ref. 16.) This
 survey provided information on the
 percent of facilities, by industrial sector.
 which manage non-hazardous wastes
 on-site in landfills, surface
 impoundments, waste piles, and land
 application units. Other baseline
 management practices were not
 specifically identified in the survey;
 therefore,  EPA had to use knowledge of
 potentially affected TC wastes to
 identify these other practices and
 estimate the percentage of facilities
' using them.
   In the case of non-wastewaters. the
 other practices considered included
 management in off-site landfills and
 land application units. For wastewatera,
 the other baseline practices included
 management in tanks as part of a
 wastewater treatment system, direct
 discharge  under a NPDES permit, or
 indirect discharge to a Publicly Owned
 Treatment Works. These other
 wastewater management practices were
 assumed to be permissible under
 subtitle C: therefore it was assumed that
 facilities using these practices for
 wastes which were identified as
 hazardous by the TC would not be
 affected by the TC rule. EPA examined
 the sensitivity of results to this
 assumption by assuming, alternatively,
 that all wastewatera were managed on
 site in subtitle D surface impoundments.
   For organic liquids, EPA determined.
 based on the Office of Solid Waste's
 Industry Studies Database, that the most
 likely baseline management practices
 were recycling and burning. EPA
 assumed that incremental management
 costs for these wastes would not be
 significant and therefore did not include
 the wastes in the analysis.
   By combining the waste
 characterization and volume data with
 the management practice data, it was
 possible to estimate, by industrial
 sector, the amount of waste and the
 number of facilities potentially affected
 bytheTC.
   In order to determine the quantity of
 each v/astestream which would be
 affected by the TC. the regulatory levels
 for constituents in the waste were
 compared  with the estimated
 concentration distributions, derived
 from the TC industry  studies, for
 constituents in the waste leachate. The
 constituent which caused the largest
 percentage of the wastestream to fail the
 TC was designated as the "cost-driving"
 constituent, and the quantity exhibiting
 the TC due to the presence of that
 constituent was used as the affected
quantity. EPA tested the sensitivity of
results to the assumption that waste
would fail for a single driving
constituent by adding the percentages
failing for all constituents (up to ICO
percent).
  Due to the lack of facility-specific
data, it was assumed that the
percentage of facilities affected by the
TC for a particular wastestream would
equal the percentage of the total waste
failing the TC. (For example, if 25
percent of a wastestream failed, it was
assumed that 25 percent of the facilities
generating the waste would be affected
and that all of the wastestream at each
affected facility would fail.) In order to
test the  importance of this assumption.
EPA adopted two alternative
assumptions as sensitivity analyses: for
any percentage of waste failing (except
for 0 and 100 percent, where clearly no
facilities or all facilities would be
affected), the percentage of facilities
affected would be 10 percent or,
alternatively, 90 percent.
  The effects of potential production
process changes in response to the rule
were not addressed.
  b. Cost Methodology. EPA estimated
both the social costs  and the compliance
costs of the final rule. Social costs do
not include transfer payments between
different parties within society (i.e., they
do not include tax payments or above-
average profits); the social costs
therefore represent the real resource
costs imposed by the rule on society as
a whole. Compliance costs, which
include the effects of taxes and above-
average profits, more accurately reflect
the effect of the rule on particular
entities within society.
  1. Social Costs
  EPA estimated the national social
costs of the final rule by calculating
before-tax incremental management
costs for affected wastes at model
facilities and then summing the facility
costs across industrial sectors.
  Before-tax incremental costs were
calculated by subtracting baseline-
management costs from post-regulatory
costs. Baseline management practices
were determined as discussed
previously. Post-regulatory management
practices were developed based on
waste types and quantities; the least-
cost practice among those feasible for a
waste was chosen as discussed below.
The post-regulatory practices did not
include potential waste treatment
practices under the land disposal
restrictions program since land disposal
restrictions requirements for TC wastes
will not come into effect until after the
TC rule is promulgated. Possible post-
regulatory management practices, as
well as baseline practices, for TC
wastes are shown in Table VI-2.

   TABLE Vl-2.—BASELINE AND POST-
 REGULATORY MANAGEMENT PRACTICES
Waste type
Wastewater 	











Notv
wastewater.





Organic liquid —

Baseline
practice
On-srte Subtitle
D surface
tfnpoundment




Of
Practice
permissible
under
Subtitle.*.
On-site Subtitle
OtandWIor
land
application
unit or off-site
Subtitle D
landfill.
Burning,
recycling.
Post-fegulatory
practice
On-stte tank
exempt from
Subtitle C.
Subtitle C
surface
Impound*
ment1

Sameas
baseline.9


On-site or off-
she Subtitle
C land Oil or
land
application
unit

Same as
baseline.''
  1 Dilution and deep-weH infection were also con-
sidered as post-regulatory practices but were found
to be more expensive man tank management
  »Includes  management in  Subtitle  C-exempt
tanks, direct discharge under a NPOES  permit or
indirect discharge to • Publicly Owned  Treatment
Works.
  • Since the post-regulatory practice was the same
as the baseline practice, the -vile  would  not affect
management of these wastes.

  To estimate before-tax baseline and
post-regulatory costs for wastes, EPA
first estimated the cost per metric ton
for the different on-site and off-site
waste management practices. Before-tax
costs for on-site management units
include operation and maintenance
(O&M) and capital costs. O&M costs are
incurred annually for operation' and'
maintenance of waste treatment or -
disposal units. Capital costs include
costs for construction of the unit and for
depreciable assets; these costs, which
assumed an average operating life of 20
years, were restated as annual values
by using a capital recovery  factor based
on a discount rate of three percent
RCRA-related costs such as personnel
training, financial assurance, and
liability insurance were included as
indirect capital costs.
  For the subset of subtitle  D facilities
which could potentially become subtitle
C TSDFs in order to manage TC wastes
on-site, post-regulatory costs for on-site
management also included corrective
action costs. Corrective action costs for
units were based on data from the to-be-
proposed corrective action subpart S
rule RIA. which indicated the
probability of a unit requiring a RCRA
facility assessment, RCRA facility
investigation, and corrective action
cleanup. Corrective action costs were
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           Federal Register / Vol. 55. No. 61 / Thursday. March 29. 1990 / Rules and Regulations
not assigned to facilities which were
determined to already be subtitle C
treatment storage, and disposal
facilities, since units at these facilities
would already be subject to corrective
action requirements under subparts S
and F. Like capital costs, corrective
action costs were converted to annual
values.
  The annualized capital and (as
appropriate) corrective action costs
were added to yearly O&M costs to
derive overall annualized costs for on-
site units of various sizes. These
annualized costs were then divided by
the waste management capacities of the
units to obtain the costs per metric ton
for on-site management in different
units.
  Off-site management costs were
based on commercial hazardous waste
management prices, adjusted for the
effects of above-average profits.
Shipping costs were included for wastes
sent off-site. Neither the on-site nor off-
site costs included the cost of waste
testing.
  Since no data were available on the
combinations of wastestreams
generated at particular facilities, EPA
used an algorithm to create model
facilities. In estimating costs for the
model facilities, wastes that were
amenable to co-management were
grouped to identify economies of scale.
  Once the costs per metric ton for
different types of on-site and off-site
management had been developed and
waste quantities for the model facilities
had been determined. EPA estimated
each facility's baseline cost based on
the quantities of waste and the cost per
metric ton for the baseline management
practices identified for the wastes. The
post-regulatory cost for each facility
was estimated in a similar way. The
post-regulatory management practices
for facilities were selected by comparing
the cost per metric ton for different
feasible post-regulatory practices for
wastes and selecting the least expensive
alternative. (This comparison was made
based on compliance costs, rather than
social costs, as discussed below). EPA
then subtracted baseline costs from
post-regulatory costs to obtain the
before-tax incremental cost for each
facility. These before-tax incremental
costs were then added across industrial
sectors to obtain the total (national)
social costs of the rule.
  EPA examined the possibility that
some facilities managing wastewaters
would incur costs over and above the
cost of switching from management in
unlined surface impoundments to
management in wastewater treatment
tanks that are exempt from subtitle C.
To calculate upper bound costs, the
Agency assumed that facilities
generating large quantities of TC
wastewater (over 400,000 metric tons
per year) would not be able to convert
existing non-hazardous surface
impoundments to tanks by the effective
date of the rule (i.e., October 1,1990)
and therefore would become interim
status facilities under RCRA and subject
to subtitle C closure of any
impoundments. The upper bound cost
estimates included costs for subtitle C
"landfill closure" of the surface
impoundments currently used to manage
TC waste. Costs for surface
impoundment subtitle C closure
included  pumping of free liquid,
solidification of sludges,  construction of
a cover system, installation of
upgradient and downgradient ground
water monitoring wells, closure
certification, and potential corrective
action costs triggered by bringing
facilities  with TC surface impoundments
into the subtitle C system.

2. Compliance Costs
  EPA used the same basic approach to
estimate  compliance costs that was used
to estimate  social costs except that the
after-tax  costs (or revenue
requirements) of management practices
were used rather than the before-tax
costs, and the price of off-site
management was used rather than the
cost of off-site management (to address
above-average profits). Since the
compliance costs reflect the cost of the
rule for particular entities within society
more accurately than the social costs do,
compliance costs were used in
determining whether it would be less
expensive for facilities to use on-site or
off-site post-regulatory management
practices.
  Based on the cost analysis discussed
above, EPA estimated the number of
existing subtitle C treatment, storage,
and disposal facilities (TSDFs] electing
to manage TC non-wastewaters on site
and the number of subtitle D facilities
which would be likely to become
subtitle C TSDFs in order to manage
their non-wastewaters on-site. (The
focus was on on-site management of
non-wastewaters, since it was assumed
that most facilities would be able to
manage wastewaters on site without
becoming subtitle C TSDFs.) This was
done by first determining the number of
facilities  that would be likely to choose
on-site management as the least-cost
management practice for non-
wastewaters and then estimating how
many of these would be likely to already
be subtitle C TSDFs. EPA also estimated
the number of new subtitle C generators,
by determining how many facilities
would generate in excess of 100
kilograms per month of TC waste and
then calculating how many of these
facilities would be likely to already be
subtitle C generators.
  c. Economic Impact Methodology. To
gauge impacts. EPA compared
compliance costs (discussed previously]
with average facility costs of production
and with cash from operations.
Financial data were obtained primarily
from the Census and Annual Survey of
Manufacturers (U.S. Department of
Commerce, Bureau of Census) and  were
organized by Standard Industrial
Classification (SIC) code and facility
size.Jmpacts were estimated at the
facility level rather than the  firm level,
due to lack of data on specific facilities
and the firms owning them.
  Two ratios were used to identify
facilities likely to experience adverse
economic effects: compliance cost
divided by cost of production (the COP
ratio) and cash from operations divided
by compliance cost (the CFO ratio).
These ratios bound possible effects on
individual facilities by examining
impacts assuming complete pass-
through of compliance costs to
customers, on the one hand, and
assuming no pass-through of costs, on
the other. The COP ratio represents the
percentage product price increase for
facility output that would be necessary
if the entire compliance cost,
accompanied by facility profit, were to
be passed through to customers in  the
form of higher prices. A change
exceeding five percent is considered an
indication of a significant adverse
economic impact on a facility. The CFO
ratio represents the number  of times that
a facility's gross margin (profi1) would
cover the compliance cost if the facility
were to fully absorb the cost. For this
ratio, a value of less than 20 is
considered to represent a significant
adverse impact.
  EPA then performed an analysis on
the facilities experiencing significant
economic impacts to identify the
potential for facility closures. Those
facilities for which the CFO  ratio was
less than two were considered likely to
close.
  Impacts on significantly affected
product markets were addressed
qualitatively by examining market
structure and the ability of facilities to
pass compliance costs on to customers.
  d. Benefits Methodology. The benefits
of the final rule were evaluated by
considering the reduction in human
health risk, the reduction in  resource
damage, and future cleanup costs
avoided that would result from required
changes in management practices for
affected wastes. These benefits
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11854      Federal Register / Vol. 55. No. 01  / Thursday.  March 29, 1990 / Rules and  Regulations
measures centered primarily on the
exposure to contaminants via the
ground water medium, since this was
the route of exposure addressed by the
TC rule; however, a screening analysis
of risks via air, due to emissions from
surface impoundments, was also
conducted to gauge the significance of
these risks.
  It is important to point out that the
benefits measures should not be added.
The measures provide alternative ways
of evaluating benefits of the rule, and
significant overlap between measures
does occur.
  EPA estimated benefits on a
wastestream-by-wastestream basis. To
simplify the analysis of benefits. EPA
employed a screening analysis to
identify two "risk-driving" constituents
in each wastestream. one a carcinogen
and one a non-carcinogen. These
constituents were then used in
developing benefit estimates.
  A Monte Carlo modeling approach
was used to simulate fate and transport
of the constituents and subsequent
exposure to them under a variety of
waste characterizations, hydrogeologic
settings, and exposure scenarios. Based
on data from EPA's National Survey of
Solid Waste Municipal Landfill
Facilities (the "Municipal Landfill
Survey"), it was assumed that only 46
percent of facilities had down-gradient
wells. EPA examined the sensitivity of
results to this assumption by assuming,
alternatively, that all facilities had
down-gradient wells.
  Due to the way in which fate and
transport of constituents was modeled
(using an infinite source, steady-state
model), benefits estimates were
primarily a function of the number of
facilities estimated to manage each
wastestream and constituent
concentrations in the waste;
wastestream volumes did hot affect
benefits estimates. In contrast, cost
analysis results were a function of the
number of facilities, waste constituent
concentrations, and wastestream
volumes.
  Worst-case estimates of baseline risk,
resource damage, and cleanup costs
were developed by assuming that the
baseline management practice for both
wastewaters and non-wastewaters was
an unlined, non-hazardous waste
landfill. This is the same assumption
that was employed by the Agency in
determining regulatory levels for TC
constituents. Post-regulatory risk,
resource damage, and cleanup costs
were estimated by assuming that the
wastes managed as hazardous under the
TC would be effectively prevented from
contaminating ground water and would
therefore result in no risk, resource
damage, or cleanup costs; only those
wastes continuing to be managed as
non-hazardous would pose a threat to
human health or the environment.
  For wastewaters, the baseline risk,
resource damage, and cleanup cost due
to ground water contamination were
based on concentrations of constituents
in the influents to waste management
units. Consequently, since volatilization
of constituents from waste management
units was not accounted for, benefits
due to reduction in ground water
contamination may be overstated.
  The three benefits measures used in
this analysis are discussed separately
below.

1. Human Health Risk Reduction
  EPA estimated two types of human
health risk: risk to the most exposed
individual (MEI) and population risk.
Human health risk is defined herein as
the probability of injury, disease, or
death over a given time (70 years) due to
responses  to doses of disease-causing
agents. The human health risk posed by
a waste management practice is a
function of the toxicity of the chemical
constituents in the wastestream and the
extent of human exposure to the
constituents. The likelihood of exposure
is dictated by hydrogeologic and
climatic settings at land disposal units
and by the fate and transport  of
chemical constituents in environmental
media.
  a. MEI Risk Reduction. MEI risk was
based on exposure to the risk-driving
constituents. Concentrations of the risk-
driving constituents in the waste
leachate were selected randomly from
the constituents' concentration
distributions. A dilution-attenuation
factor (DAF), derived from EPA's
subsurface fate and transport model
(EPACML), was then randomly selected
and used to model the fate and transport
of the constituents in ground water. (The
DAFs were developed using data from
the Municipal Landfill Survey on landfill
size, hydrogeology, and distance from
the unit to the closest drinking water
well; see section III.E for further
discussion of the model.) By dividing the
initial leachate concentrations of the
risk-driving constituents by the DAF,
exposure concentrations at a down-
gradient well were estimated Risks
from ingestion of contaminated ground
water were then calculated. The
carcinogenic MEI risk was expressed as
the probability of the MEI contracting
cancer over a 70-year lifetime, and the
non-carcinogenic MEI risk was      .
expressed  as an exceedance of the
health-effects threshold.       .......
  Risk estimates were developed in this
way for baseline conditions and for the
final rule. The difference between the
final rule and baseline risk estimate
yielded the MEI risk reduction (or
benefit).
  EPA conducted a separate screening
analysis of baseline MEI risks due to air
emissions from surface impoundments
in order to assess whether potential air
risks were significant. This was done by
assuming that constituents in
wastewaters would potentially
volatilize to the air rather than leach to
ground water. EPA's Liner Location
Model (Ref. 32) was used to estimate
concentrations of constituents at an
exposure point 200 meters from the edge
of the surface impoundment. Both
carcinogenic and non-carcinogenic risks
were estimated.
  b. Population Risk Reduction.
Population  risk was estimated in much.
the same way as MEI risk, with the
exception that ground water plume
areas for risk-driving constituents were  -
used to model the exposure of
populations located downgradient from .
units. The plume areas were developed
for a representative hydrogeologic
environment, based on data from the
Municipal Landfill Survey.
  Each plume area contained a gradient
of exposure concentrations, with the
highest concentration near the unit
boundary and the lowest concentration
near the outside edge of the plume. By
assuming a uniform population density
of 1.6 persons per acre, based on the
Municipal Landfill Survey, it was
possible to  estimate the number of
persons exposed to each of the
concentration levels within each plume.
  The population risk for the
carcinogenic constituent, based on the
constituent's risk-specific dose (RSD),
was expressed as the number of cancer
cases over  a 70-year lifetime. The
population  risk for the non-carcinogenic
constituent, based on the constituent's
reference dose (RfD), was expressed as
the number of persons exposed to
average daily concentrations exceeding
the RfD over a 70-year period.

2. Resource Damage Avoided
  Resource damage measures the cost
associated with replacing contaminated
ground water that had been used as a
source of drinking water. Resource
damage was assumed to result from any
contamination of ground water which
would render it unsuitable for human  .
consumption; other potential foregone
uses, such as industrial or agricultural
uses, were not addressed.
  If the concentration of a constituent in
ground water exceeded a maximum
contaminant level (MCL), the ground
water was assumed to be damaged. If
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            Federal Register / Vol. 55. No. 61 / Thursday. March 29. 1990 / Rules and Regulations     11855
the contaminant did not have an MCL
but the concentration exceeded a taste
and odor threshold or a health effects
threshold, the ground water was also
assumed to be damaged. Areas of
damaged ground water were derived
based on a comparison of the
constituent's concentration within the
plume with the constituent's MCL, taste
and odor threshold, or health-based
number, in an approach similar to that
used to estimate plume areas for
population risk.
  To place a value on the damaged
resource, EPA assumed that an
alternative water supply system would
have to be built to provide water to
persons living above the area of the
damaged ground water. The costs of
constructing the water supply system
included capital and O&M costs; these
costs were discounted to the present at
a rate of three percent to obtain the
resource damage per facility. Addition
of resource damage across facilities
provided a national estimate.

3. Cleanup Costs Avoided
  As an alternative measure of benefits,
EPA estimated the cleanup costs
avoided as a result of the TC role. Costs
of cleanup of contaminated ground
water were estimated by assuming that
sites with resource damage in die
baseline would eventually require
cleanups. To develop an upper bound
estimate, it was assumed that sites with
resource damage greater than $1,000,000
(present value) would require cleanup.
  Cleanup costs were based on an
average cost of $15 million per site, with
cleanups beginning in 15 years. EPA
estimated the average cost of cleanup
by examining recent Superfund records
of decision (ROOs) for sites
contaminated with TC constituents that
required substantial ground water
cleanup efforts. Costs were discounted
to present values using a discount rate
of three percent.
  e. Used Oil Methodology. EPA
addressed the impacts of the TC on used
oil separately from other wastes for
several reasons. First used oil is
generated across a wide variety of
industrial sectors; Second. mililco other
wastes, it has economic value and can
be sold in intermediate or end-use
markets; this complicates any analysis
of the costs of regulating it as a
hazardous waste. Also, data on used oil
are quite limited. Finally, it is difficult to
accurately estimate quantities of used
oil that may exhibit the TC because hi
practice TCLP filtration is sample-
specific and difficult to predict
  The analysis of costs, economic
impacts, and benefits associated with
used oi) was qualitative in nature; no
attempt was made to develop national
estimates. In determining the quantity of
used oil potentially affected, EPA
excluded used oil that was: (1) Already
hazardous because it exhibits a
hazardous waste characteristic (e.g.,
ignitability); (2) recycled; or (3)
generated by "do-it-yourselfers" (i.e.,
auto owners disposing of crankcase oil).
In order to develop worst-case estimates
of impacts on used oil, it was assumed
that used oil would filter in the TCLP. It
was also assumed that the facilities
managing used oil were subtitle D
facilities. Finally, estimated impacts on
used oil did not account for the possible
stigma associated with management of
used oil as a hazardous waste.
4. Results
  Results of the RIA are presented
below. These results are approximations
that are intended to identify the most
significant impacts of the TC rule. As
discussed previously, there were no
data on the waste types and quantities
generated by specific facilities in the
different industrial sectors. Therefore.
EPA used more aggregated data and
focused on those industrial sectors
which were most likely to generate
significant quantities of TC wastes.
  a. Affected Wastes and Faculties.
EPA estimated the amount of waste and
the number of facilities that would be
"affected" by the rule, Le~ that would
incur any incremental costs due to
required changes in management
practices for newly hazardous wastes.
1. Affected Wastes
  The overall quantity of waste affected
by the TC was driven by wastewaters.
EPA estimated the quantity of affected
wastewaters to be approximately 730
million metric tons (MMT) per year and
the quantity of affected non-
wastewaters (sludges and solids) would
range from approximately 0.85 MMT/
year to 1.8 MMT/year. It should be
noted that the affected wastewaters,
which would be hazardous wastes, are
assumed to be exempt from subtitle C
regulation in the post-regulatory
scenario due to their management in
exempt tanks. However, they would be
affected wastes because a change in
management practice (from surface
impoundments to tanks) would be
required.
  The industrial sectors with the largest
quantities of affected wastewaters were
Petroleum Refining (SIC 2911), Organic
Chemicals (SIC 286)1 Synthetic Rubber
(SIC 2822), and Cellulosic and Non-
Cellulosic Synthetic Fibers (SlCs 2823
and 2824). For the lower bound estimate
of 0.85 MMT/year of mn--wa*tewaters
affected, the sectors with the largest
quantities of affected non- waste waters
were Pulp and Paper (SIC 26), Synthetic
Fibers, Organic Chemicals, and
Pharmaceuticals (SIC 283). For the uppea
bound estimate of 1.8 MMT/year.
industry sectors generating the largest
quantities of affected non-wastewaters
were Petroleum Refining, Pulp and
Paper, Synthetic Fibers, Organic
Chemicals, and Wholesale Petroleum
Marketing (SIC 517). Certain sectors
generate significant quantities of both
wastewaters and non-wastewaters due
to the wastewater treatment sludges
associated with wastewater streams.
Most of the affected wastewaters and
non-wastewaters are believed to be
generated by large facilities.
  A total of twelve constituents
appeared as "cost-driving" constituents
in the analysis. However, benzene was
the driving constituent for over 60
percent of the affected waste quantity.
Other volume-driving constituents
include chloroform (25%), vinyl chloride,
(17%), and trichloroethylene (15%).

2. Affected Facilities

  EPA estimated that between 15,000
and 17,000 generators would be affected
by the rule. Costs and additional
requirements among these affected
facilities will vary (e.g~, some may
already be RCRA generators or TSDFs,
others may need to apply for RCRA
permits or send wastes off-site). Over 90
percent of these were small facilities
(with fewer than 50 employees). The
industries with the most affected large
facilities were Hosiery and Knit Fabric
Finishing (SIC 225), Wholesale
Petroleum Marketing, Organic
Chemicals. Petroleum Refining, and
Plastics Materials and Resins (SIC 2821).
The industries with the most affected
small facilities were Wholesale
Petroleum Marketing, Hosiery and Knit
Fabric Finishing, Miscellaneous
Petroleum and Coal  Products (SIC 2992),
Organic Chemicals, and Plastics
Materials and Resins.

3. Sensitivity Analysis of Affected
Wastes and Facilities

  Changes in certain analytical
assumptions had significant effects on
the quantity of waste and number of
facilities affected by the TC final rule.
(Refer to section VIJ).3.a for discussion
of the sensitivity analyses which were
conducted.) Some of the changes also
affected cost and benefit results, as
discussed below under cost results and
benefit results.
  Assuming that oily wastes would not
filter in the TCLP, rather than assuming
that they would, would have a very
significant effect on the quantity of non-
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11856      Federal Register / Vol.  55. No. 61 / Thursday, March 29. 1990 / Rules and-Regulations
wastewatera affected by the TC. This
effect can be seen in the difference.
between lower bound (assuming oily
wastes do not filter) and upper bound
(assuming oily wastes filter without
complications) estimates of affected
quantities of non-wastewaters. Nearly
all of the non-wastewaters from
Petroleum Refining (including a very
large-volume primary treatment sludge),
Wholesale Petroleum Marketing, and
Petroleum Pipelines are oily wastes.
  Assuming that all wastewaters were
managed in surface impoundments,
rather than some portion being managed
by practices exempt under subtitle C,
increased affected wastewater quantity
significantly to approximately 1,900
MMT/year. It also increased the number
of facilities affected in certain sectors.
  Finally, assuming that only 10 percent
of the facilities would be affected for a
waste failing the TC, rather than using
the percent of the waste failing,
significantly reduced the number of
facilities affected by the TC in most
industrial sectors.
  b. Cost Results—1. Social. Costs and
Compliance Costs. EPA estimated the
total social costs of the TC rule
(excluding taxes and above-average
profits) to be approximately $90 million
to $310 million per year (present value
$1.3 billion to $5.7 billion); this does not
include costs associated with used oil.
Compliance costs (which include taxes
and above-average profits) ranged from
$130 million to $400 million per year
(present value $1.9 billion to $6.0
billion). While affected waste quantities
were driven by wastewaters,      :
compliance costs (for the scenario
where oily wastes fail the TC and no
surface impoundment closure costs-are
incurred) were driven by non-  ••   '   -
wastewaters due to the significantly
higher incremental costs of managing
non-wastewaters. Non-wastewaters
accounted for over 95 percent of
compliance costs.
  For the lower bound cost estimate, the
industrial sectors with the largest
compliance costs were Pulp and Paper,
Synthetic Fibers, Organic Chemicals,
and Synthetic Rubber. For the upper
bound cost estimate, the industrial  •
sectors with the largest compliance
costs were Petroleum Refining,.Pulp and
Paper, Synthetic Fibers, Wholesale
Petroleum Marketing, and Organic •
Chemicals. Constituents driving the cost
results were: benzene, chloroform,
trichloroethylene, vinyl chloride, and
carbon tetrachloride.
  Approximately 90 percent of the
compliance costs (for the scenario.-  -
where oily wastes fail the TC and no
surface impoundment closure costs are
incurred] were incurred by large
 facilities and 10 percent by small
 facilities across industrial sectors. A
 relatively small number of large
 facilities incurs the majority of
 compliance costs because large facilities
 are believed to have much greater waste
 generation rates than small facilities.
   The estimated number of subtitle D
 facilities seeking permits to become non-
 commercial subtitle C TSDFs was 40 to
 250; this does not include facilities
 seeking permits for storage or treatment
' only. Most of the expected permit
 applicants were in the Pulp and Paper
 Industry in the lower bound estimate.
 Most of these new TSDFs  in the upper
 bound estimate were in Petroleum
 Refining.
   The number of existing subtitle C non-
 commercial TSDFs expected to seek
 permit modifications to handle TC
 wastes was between 45 and 220.
 depending on whether permits are
 considered for only disposal or for
 treatment storage, and disposal. Most of
 these facilities in the upper bound
 estimate were in the Wholesale
 Petroleum Marketing and Petroleum
 Refining industries.
   The number of subtitle C commercial
 TSDFs (SIC 4953) seeking permit
 modifications or changes to interim
 status could be as high as  360, the
 estimated number of existing
 commercial TSDFs. Many of these
 commercial TSDFs are primarily storage
 facilities.
   In addition, the TC rule would result
 in as many as 15,000 new subtitle C
 generators. Most of the new generators
 would be in Wholesale Petroleum
 Marketing and Hosiery and Knit Fabric
 Finishing.
   2. Sensitivity Analysis of Costs.
 Changes in certain analytical
 assumptions had significant effects on
 the social costs and compliance costs of
 the TC final rule. (Refer to section
 VLB.3.a for discussion of the sensitivity
 analyses which were conducted.) Some
 of the changes also affected benefit
 results, as discussed below under
 benefits results.
   Assuming that oily wastes would not
 filter in the TCLP, rather than assuming
 that they would, would have a
 significant effect on both social costs
 and compliance costs. The Agency
 estimated, as a lower bound assuming
 that no oily wastes will fail the TC test.
 social costs of about $90 million per year
 and compliance costs of about $130
 million per year. By comparison, if it .
 were assumed for the purpose of
 predicting TCLP results that oily wastes
 behave like other non-liquid wastes,
 social costs would be $190 million per
 year and compliance costs would be
 $250 million per year. .
  Assuming that not all facilities would
be able to convert within six months
from surface impoundments to tanks for
management of their TC wastewaters,
rather than assuming that all facilities
would be able to convert, significantly
increased the cost of the rule. Based on
landfill closure of impoundments, this
assumption added approximately $120
million  to annual social costs and $140
million  to annual compliance costs.
  Splitting wastestream quantity evenly
between small and large facility size
categories, rather than based on value of
shipments, shifted wastes from large to
small facilities. While this did not affect
the overall costs greatly, it significantly
decreased compliance costs for large
facilities and increased them for small
facilities.
  Finally, assuming that only 10 percent
of the facilities would be affected for a
waste failing the TC, rather than using
the percent of the waste failing,
significantly reduced social costs and
compliance costs due to the larger
quantities of waste being managed at a
smaller number of facilities and the
resultant economies of scale. The
estimated number of new subtitle C
TSDFs, existing TSDFs seeking permit
modifications, and new subtitle C
generators also, decreased significantly.
  c. Economic Impact Results—1.
Significantly Affected Facilities. Based
on the economic impact criteria
discussed previously the estimated total
number of significantly affected
facilities was 65 to 81, of which most (51
to 66) are large. The fact that most of the
significantly affected facilities are large
can be partially explained by the fact
that data indicate there are no small
facilities in certain sectors (e.g.,
Cellulosic Synthetic Fibers).  Another
reason  for the preponderance of
significantly affected large facilities is
that for some wastes, total compliance
costs are less for small facilities than for
large facilities because large facilities
are believed to generate significantly
more waste.
  In the lower bound estimates,
significantly affected facilities were
expected in four industrial sectors: Pulp
and Paper, Synthetic Rubber, Synthetic
Fibers,  and Organic Chemicals. In the
lower bound estimates the Pulp and
Paper industry was predicted to have
the greatest number of significantly
affected facilities (35), of which 30 are
'large facilities. The synthetic rubber
industry had the highest number of
significantly affected small facilities (8),
out of a total of 14 significantly affected
small facilities. None of the industries
examined were expected to suffer
facility  closures as a result of the TC
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            Federal  Register / Vol. 55, No. 61 / Thursday,  March 29, 1990 / Rules and Regulations
                                                                        11857
  In the upper bound estimates,
significantly affected facilities were
expected in seven industries: Pub and
Paper, Synthetic Rubber, Synthetic
Fibers, Organic Chemicals, Textiles,
Pharmaceuticals, and Plastics and
Resins. Pulp and paper had the largest
number of significantly affected
facilities—38 out of 80 for all facilities.
2. Effects on Product and Capital
Markets
  The industries with significantly
affected facilities have very little
potential to pass compliance costs on to
consumers in the form of higher prices.
These industries produce primarily
intermediate goods (e.g., rubber, paper,
fibers, and chemicals) which are used in
a number of subsequent processes (e.g.,
manufacturing and fabrication) before
they reach consumer markets. The users
of these intermediate products have
access to similar or identical products
from U.S. suppliers that are not
significantly affected by the TC and
from foreign suppliers; because
substitutes are available, these users
would not be forced to pay higher prices
for the intermediate products.
  While results suggest that prices in
product markets will not be affected, at
least some impact is likely on capital
markets. Because affected  facilities will
not be able to pass compliance costs
through to buyers in the form of higher
prices, they will experience lower
profits. Lower profits will reduce the
value of capital tied up in these
facilities. However, as most of the
affected facilities are part of integrated
production systems and are owned by
large firms with significant asset
holdings, the effect on capital markets
(i.e.,  stock prices and bond ratings)
should be relatively small.
3. Sensitivity Analysis of Economic
Impacts.
  A  change in one of the analytical
assumptions had significant effects on
economic impacts due to the TC final
rule. Refer to section VI.B.3.a for
discussion of the sensitivity analyses
which were conducted.
  Splitting wastestream quantity evenly
between small and large facility size
categories, rather than based on value of
shipments, shifted wastes from large to
small facilities. Under the scenario
where oily wastes fail the TC and no
surface impoundment closure costs are
incurred, this resulted in nearly 40
additional small facilities with
significant economic impacts and 10
small facility closures.
  id.  Benefits Results. EPA estimated, the
benefits of regulating TC wastes on a
wastestream by wastestream basis;
 results of this analysis are/presented in
 Table VI-3. As discussed in the benefits
 methodology section, results for
 different benefit measures (human
 health risk, resource damage, and
 cleanup costs avoided) are likely to
 overlap and  should not be added.

 TABLE VI-3.—BENEFITS OF THE TC RULE

 Reduction in MEI Risk:
   • Reduction  in   Carcinogenic  370 to 760.
    Risk (number of facilities with
    risk greater than IxlOE-S at
    down-gradient well).
   • Reduction in Non-Carcinogenic  8.
    Risk (number of facilities with
    exposure above a health-based
    threshold at downgradtent well).
 Reduction in Population Risk:
   • Reduction . in   Carcinogenic  6.
    Risk (number of cancer cases
    over 70 years).
   • Reduction in Non-Carcinogenic  320.
    Risk (number-of persons with
    exposure above a health-based
    threshold   at   downgradient
    wells).
 Reduction  In  Resource Damage  3,800.
   (present value, millions of 1988
   dollars).
 Cleanup Costs Avoided (present. Up to 15,000.
   value, millions of 1988 dollars).
 1. MEI Risk
   As can be seen from the table, there is
 a potentially significant reduction under
 the final rule in the carcinogenic risk to
 the most exposed individual (MEI).
 There are from 370-780 fewer facilities
 managing wastes that present .risks to
: the most exposed individual (MEI)
 greater than 1 X10E~8 under the final
 rule than there were under baseline
 conditions. The industrial sectors
 driving these benefits include Wholesale
 Petroleum Marketing (SIC 517) and
 Miscellaneous Plastics Products (SIC
 3079). The constituent driving most of
 these benefits is benzene. The difference
 between the lower and upper bounds
 results from certain oily wastes that are
 unregulated in the lower bound.
   For non-carcinogenic MEI risk, there
 are 8 fewer facilities managing
 wastewaters where the exposure to a
 non-carcinogenic constituent exceeds
 the reference dose (RfD) under the final
 rule than under baseline conditions.
 Wastes from Wholesale Petroleum
 Marketing drive these benefits results.
 Cresols are the risk-driving constituents.
   The Wholesale Petroleum Marketing
 sector presents significant risks due to
 the large number of facilities managing
 wastewaters and non-wastewaters. The
 number of facilities in this sector
 estimated to manage wastewaters and
 non-wastewaters are 1,290 and 1,050
 facilities, respectively; this compares
 with 1,900 and 8,600 facilities,
 respectively, managing affected
wastewaters and non-wastewaters
across all industrial sectors.
  A screening analysis of MEI risks due
to air emissions from surface
impoundments was conducted to gauge
the potential risk via the air medium.
This analysis indicated that in sectors
other than Wholesale Petroleum
Marketing approximately 20 percent of
modeled facilities had carcinogenic risks
greater than 1X10E'9 and 5 percent had
non-carcinogenic doses greater than the.
RfD; MEI. air risks from Wholesale
Petroleum Marketing were less than
1X 10E~'. Benzene contribt ted most of
the carcinogenic risks while phenol was
responsible for most of the non-
carcinogenic risks.
  The industries generating wastes with
high MEI air risks differ to some extent
from those generating wastes with high
MEI ground water risks. The industries
generating wastes with high MEI air
risks include Pulp and Paper, Plastics
Materials and Resins, Synthetic Rubber,
Cellulosic and Non-Cellulosic Synthetic
Fibers (SICs 2823 and 2824), and Organic
Chemicals.
  There is some potential overlap in
estimates of air and ground water risk.
The wastewater MEI risks via ground
water were based on the assumption
that all the constituent mass was
available for leaching to ground water;
in contrast the air risks assumed some
percentage of constituent mass would
volatilize from impoundments. As a
result, the wastewater MEI risks via
ground water are likely to be overstated.

2. Population Risk

  Based on a very limited  analysis of
population risk. EPA estimates that
there  would be six fewer cancer cases
over the 70-year modeling period due to
the final rule. Wholesale Petroleum
Marketing (constituent: benzene) and
Plastics and Resins (SIC 2821)
(constituent: vinyl chloride) drive these
benefits. The reduction in number of
persons exposed to non-carcinogens at
concentrations greater than the RfDs
was estimated to be 320 over a 70-year
period. Sawmills and Planing Mills (SIC
2421)  and Organic Chemicals
(pentachlorophenoi and methyl ethyl
keytone) drive these results.

3. Resource Damage

  The total reduction in resource
damage would be approximately $3.8
billion (present value). Wholesale
Petroleum Marketing and Miscellaneous
Plastics Products are the industrial
sectors driving resource damage
benefits. Benzene is the driving
constituent.
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11858      Federal Register  /  Vol. 55. No. 61  /  Thursday. March 29. 1990 / Rules  and Regulations
4. Cleanup Costs Avoided
  Estimated cleanup costs avoided due
to the final rule ranged up to $15 billion
(present value). Under the assumption
that all sites with significant resource
damage (i.e., resource damage greater
than Sl.000,000 (present value)) would
require cleanup, approximately 1.600
facilities would require cleanup.

5. Sensitivity Analysis of Benefits
  Changes in certain analytical
assumptions had significant effects on
the benefits of the TC final rule. (Refer
to .sections VI.B.3. a and  d for discussion
of the sensitivity analyses which were
conducted.) Some of the  changes also
affected cost results, as discussed under
cost results.
  Assuming that oily wastes would not
filter in the TCLP. rather than assuming
that they would, would reduce the
benefits associated with non-
wastewaters. as can be seen in the
lower bound estimates indicated in the
results above. This would result
primarily from the significant reduction
in the number of facilities managing
non-wastewaters in Wholesale
Petroleum Marketing.
  Assuming that all waste waters were
managed in surface impoundments.
rather than some portion being managed
by practices exempt under subtitle C,
would increase the number of facilities
affected in many sectors and increase
benefits significantly. Benefits for
wastewaters could increase by
approximately 10 times since there
would be 10 times as many facilities
with surface impoundments.
  Assuming  that only 10 percent of the
facilities would be affected for a waste
failing the TC, rather than using the
percent of the waste failing, significantly
reduced the number of facilities affected
by the TC in all industrial sectors. This
would significantly reduce benefits as a
result, since fewer facilities would be
managing wastes.
  Assuming that all facilities have
down-gradient wells, rather than  •
assuming only 46% have  down-gradient
wells, would increase benefit results by
a factor of approximately two.
  e. Cost-Effectiveness. The Agency
estimated the cost-effectiveness of the
final rule and of several regulatory
alternatives. This discussion is
presented in the regulatory impact
analysis document which is part of the
public docket for the rule.
  /. Used Oil Results. Used oil is
generated across a wide  variety of
industrial sectors. Some generators
manage or dispose of their used oil •
directly while others provide their used
oil to the used oil management system
(UOMS). a system of intermediate
collectors and processors (Ref. 33).
Firms in the UOMS then re-refine or
process the used oil and/or sell it for
various end uses.
  Under the worst-case assumption that
used oil would not create TCLP filtration
problems. EPA found based on
constituent concentration data (see Ref.
8), that virtually all used oil would fail
the TC. EPA determined that three end-
use management practices for used oil
would be affected: landfilling/
incineration, dumping, and road oiling.
  Once used oil became TC hazardous.
it would have to be shifted to other end-
use management practices. Much of the
used oil that is currently dumped  or
applied directly to roads by generators
would probably be collected and  sold to
the UOMS. Firms in the UOMS that
currently sell used oil for road oiling
would generally shift this oil to other
management practices, such as re-
refining or burning as a fuel. Used oil
that is managed by landfilling or
incineration in subtitle D units would
likely be shifted to management in
subtitle C units.
  The shift in management practices
would impose costs on used oil
generators, the UOMS, and end-users of
used oil. Used oil generators currently
providing used oil to the UOMS would
be likely to pay somewhat higher
collection costs due to pass-through of
compliance costs by firms in the UOMS.
Generators that currently manage their
wastes by road oiling would incur
storage and collection costs for their
used oil as well as costs for a road-oiling
substitute. Generators directly managing
their wastes by dumping would incur
costs for storage and collection. Firms in
the UOMS that sell used oil for road
oiling would be forced to sell the oil in
less profitable markets, and some firms
could close if unable to enter another
market Finns in the UOMS could also
incur costs for disposal of low quality
used oil and related wastes in subtitle C
(rather than subtitle D) units if these
wastes were TC hazardous: as
discussed above, some of these costs
could be passed on to used oil
generators. Firms that  re-refine used oil
could benefit from the TC rule, since a
greater volume of used oil would
potentially be available at a lower price.
Finally, end-users that purchase used oil
for road oiling would incur costs for an
alternative dust suppressant
  The shift in management practices
could also result in certain benefits. A
previous study of carcinogenic risks
from used oil management practices
(Ref. 34) indicates that dumping of used
oil may present significant risks relative
to other management practices-(with the
possible exception of burning in boilers.
where risks are more comparable). Road
oiling appears to present more
significant risks than recycling and
comparable or fewer risks relative to
burning in boilers or landfill disposal. It
is difficult to draw definitive
conclusions concerning benefits due to
the different constituent profiles and
population densities associated with
each of the management practices in the
risk analysis.

C. Regulatory Flexibility Analysis

1. Approach

  The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that
whenever an agency publishes a notice
of rulemaking, it must prepare a
Regulatory Flexibility Analysis (RFA)
that describes the effect of the rule on
small entities (i.e^ small businesses,
small organizations, and small
governmental jurisdictions). An RFA is
unnecessary, however, if the Agency's
administrator certifies that the rule will
not have a significant economic effect
on a substantial number of small
entities.
  EPA examined the final rule's
potential effects on small entities as -
required by the Regulatory Flexibility
Act Three measures, based on EPA
guidelines for conducting an RFA. were
used to determine whether the rule .
would have a "significant economic
effect" on small entities: the ratio of
compliance cost to cost of production.
the ratio of compliance cost to value of
sales, and the ratio of cash from
operations to compliance cost (the last
ratio being used to assess potential
closures). Two of the three criteria, the
ratio of compliance cost to cost of
production and the ratio of cash from
operations to compliance cost, are
discussed in section VI.B.3.C. The third.
the ratio of compliance cost to value of
sales, was estimated for small and large
facilities: if the difference between these
ratios was greater than ten percent this
indicated a significant impact
  The guidelines for conducting RFAs
are somewhat ambiguous with respect
to evaluating impacts based on the third
criterion. Determining whether the
difference between ratios exceeds ten
percent can be done by subtracting the
large facility ratio from the small facility
ratio or by dividing the small facility
ratio by the large facility ratio. Dividing
the small facility ratio by the large
facility ratio may incorrectly indicate
siqnificant impacts on small facilities  .
when both ratios are very small but the
small facility ratio is larger than the
large facility ratio. (For example, a small
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            Federal Register  / Vol. 55.  No. 61  /  Thursday,  March 29. 1990  /  Rules and Regulations     11859
facility ratio of 0.00002 divided by a
large facility ratio of 0.00001 would
indicate a significant impact on small
businesses based on the division
approach, despite the fact that the very
low ratio of compliance cost to value of
sales for small facilities indicates little
impact on small facilities.) Therefore,
the division approach must be
interpreted with caution.
  A "substantial number" of small
entities was assumed to be 20 percent or
more of the population of small
businesses, small organizations, or small
government jurisdictions within the
universe of facilities affected by the
rule.
  The Agency defined a small business
as a business employing 50 employees
or less. (Standard Small Business
Administration criterion is 500
employees.) EPA decided to use the 50
employee definition of a small business
because the RIA estimates facility-level
impacts, and the SBA definition applies
to entire Firms. The SBA definition
would designate most of the facilities in
the examined industries as small
businesses, which would obscure
differential impacts on smaller facilities.
  Impacts on small businesses related to
costs of compliance for used oil and
contaminated soils were not examined
due to lack of data on the facilities
experiencing those costs.
2. Results
  The only entities found to be affected
by the final rule were small businesses,
defined here as businesses employing
fewer than 50 persons. No small
organizations or small government
jurisdictions were identified as potential
TC waste generators in  the TC industry
studies which form the foundation for
this analysis.
  The Agency did not identify any
industries in which 20 percent or more
of the small businesses were
significantly affected based on the ratio
of compliance cost to cost of production,
the ratio of cash from operations to
compliance cost, or the ratio of
compliance cost to value of sales (using
the subtraction approach). Using the
division approach for the ratio of
compliance cost to value of sales
indicated that small businesses in four
sectors (including Pulp and Paper,
Synthetic Rubber, Organic Chemicals,
and Wholesale Petroleum Marketing)
would be significantly affected.
However, since the small facility and
large facility ratios were both quite
small (small facility ratios were less
than 0.03), the Agency does not expect
significant small business impacts in
these sectors. Based on these results,
EPA has concluded that today's final
rule will not have a significant effect on
a substantial number of small entities.
As a result of this finding, EPA has not
prepared a formal RFA in support of the
rule. More detailed information on small
business impacts is available in the RIA
for this rule.

D. Response to Comments on RIA for
June 13,1988 Proposal
  EPA received many comments on the
RIA for the proposed TC rule. This
section presents a general summary and
analysis of the public comments
concerning the original RIA; all of the
comments are addressed in the
background document for this final rule.
Major issues addressed by commenters
included consideration of particular
industries, specific aspects of cost and
benefit methodologies, cost and benefit
estimates, and the assessment of small
business impacts.
1. Industries Included in the Analysis
  The majority of comments on the RIA
for the proposed rule concerned the
absence of specific industrial sectors
from the group examined for potential
impacts. Other commenters criticized
the RIA for not considering the effects of
the TC on end users of products and on
facilities such as Publicly Owned
Treatment Works and Municipal
Landfills.
  Industries that commenters suggested
should have been evaluated included
natural gas production, manufacturing of
a variety of products, including forest
products, pharmaceuticals, automobiles,
plastics, metals, polyvinyl chloride,
semi-conductors, wire and cables, and
waste management. The Agency agrees
with commenters that a number of
industrial sectors were not addressed in
the RIA for the proposed rule. The
Agency notes, however, that several of
the wastestreams that commenters
believed should have been included in
the RIA (based upon the proposed
regulatory levels) are not expected to be
defined as hazardous based upon the
final regulatory levels being
promulgated today. One of the
fundamental problems with determining
which industries would potentially be
affected by the TC is lack of data on
currently non-hazardous wastes. Since
these wastes are currently outside the
subtitle C system, requirements for
information gathering related to them
are minimal.
  The Agency made extensive efforts, in
preparing the RIA for the TC final rule,
to obtain data on the industrial sectors
potentially affected by the TC. These
data were derived from a variety of
sources. The Agency contacted
numerous trade associations and
.individual facilities and collected
pertinent EPA and other government
publications. In addition. EPA prepared
a series of TC industry study reports on
those sectors most likely to generate
significant quantities of TC wastes.
  In preparing its TC industry studies.
EPA first conducted preliminary studies
which examined a large number of
industries, with emphasis on identifying
whether or not TC constituents would
be likely to be present in industry
wastes. Based on the preliminary       ,
studies, EPA completed detailed profiles'
of potentially affected industries for use
in the final RIA. The Agency examined
the potential for impacts on a number of
industries that were not considered in
the RIA for the proposed rule, as well as
reconsidering some that were addressed.
in that RIA. Table VI-l in section VLB
compares the coverage of industries for
both the proposed rule RIA and the final
rule RIA and indicates the industries for
which detailed quantitative analysis
was conducted.
  Commenters also criticized the
proposed rule RIA for not considering
effects on end-users of products
containing TC constituents. Examples of
such end-user industries include
agricultural chemical users, transporters,
automotive maintenance facilities,
petroleum retailers, medical facilities,
and research laboratories. The Agency
recognizes that TC toxicants exist in a.
variety of substances,  and that end-
users  as well-as producers of products
containing TC constituents could be
affected by the rule. Some end-users not
identified in the RIA may be affected.
but there is no information to quantify
these potential impacts. The Agency
believes that some of the impacts on
affected end users may be mitigated by
small quantity generator regulations
under 40 CFR 261.5.
  Finally, several commenters
questioned EPA's assessment of impacts
on Publicly Owned Treatment Works
(POTWs), resource recovery facilities,
public water suppliers, municipal
landfills, the electrical services industry,
and currently regulated RCRA facilities.
As discussed previously in section
III.K.2, the Agency has tested a number
of POTW sludges to determine whether
or not these  sludges would be
considered hazardous under the TC; the
data generally indicate that these
wastes would not be affected by the TC
(Ref. 8). Because the final regulatory
level for chloroform is significantly
higher than originally proposed. EPA
believes that public water suppliers also
are unlikely to generate TC wastes. The
Agency analyzed wastestreams
generated by the Electrical Services
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11880      Federal Register / Vol. 55. No. 61  /  Thursday, March 29. 1990 / Rules and Regulations
industry. These wastes were excluded
from (he RIA because they are fossil fuel
combustion wastes, which are exempt
from subtitle C regulation until a
determination is made as to whether
they should be regulated as hazardous.
The Agency  acknowledges that some
waste generated by waste management
facilities may exhibit the TC; however.
most of these wastestreams that
commenters believed should be included
are not expected to exhibit the TC under"
the final regulatory levels. FinaDy,
impacts on currently regulated RCRA
facilities (in the industries included in
the RIA) were addressed in the RIA.

2. Estimation of Costs and Economic
Impacts
  Many commenters expressed concern
that the compliance cost estimates for
facilities included in the economic
impact analysis did not capture many of
the expenditures faced by handlers of
hazardous waste. The most common
criticism was directed at the omission of
the cost for actually performing the
TCLP. Other commenters mentioned
insurance costs and costs associated
with RCRA permit applications. Another
large group of comments concerned the
costs for permitting and retrofitting the
large universe of surface impoundments
containing wastewaters which would
exhibit the TC. In addition, a number of
commenters contended that the RIA
significantly underestimated potential
economic impacts of the TC.
  Other commenters claimed that the
expense of the highly sophisticated
equipment and specially trained
personnel necessary for the testing of
wastes would pose a significant burden
on many firms, especially those without
on-site laboratory facilities. The Agency
recognizes that testing of wastes could
pose a significant expense for firms that
choose to test their wastes. On the other
hand, there is currently no RCRA
requirement  for generators to test their
wastes; the determination of
hazardousness may be made based on
either laboratory analysis of the waste
or on knowledge of the waste, raw
materials, and production processes.
The Agency expects that many
generators will rely on the latter
method, and elect not to perform the
TCLP. The Agency is still considering
promulgating a testing requirement at a
future date. If a testing requirement is
proposed, potential costs of testing will
be analyzed in detail.
  Recognizing that administrative and
insurance costs can constitute a
significant portion of waste management
costs, the Agency considered these in
cost estimates in the final RIA. In
addition, the "ost of preparing RCRA
permit applications is considered in the
cost of subtitle C waste management, as
ere items such as liability insurance.
personnel training, and contingency
planning.  .
  In response to comments that surface
impoundment impacts were understated.
the Agency examined the effect of the
TC rule on wastewaters and estimated
the costs of compliance with subtitle C
requirements. The Agency assumed in
the final RIA that, based on least-cost
management practices, surface
impoundments would not have to be
retrofitted. Instead, it was assumed that
affected wastewaters would be
segregated and treated in a separate
tank system, while remaining non-
hazardous wastewaters could continue
to be managed m the impoundments. In
deriving an upper bound estimate of
costs, it was assumed that some
impoundments would have to undergo
subtitle C clean closure.
  Given the broad scope of the TC  rule
and the general lack of data on
industries and facilities managing
currently non-hazardous wastes, die
Agency agrees that economic impacts
on certain sectors may have been
underestimated in the RIA for the
proposed rule. As discussed above, the
Agency has made significant efforts in
the final RIA to more accurately
characterize the sectors potentially
affected by the TC and to estimate  the
actual impacts on affected facilities.

3. Estimation of Benefits
  Several commenters remarked on the
original methodology used for the
estimation of benefits. The most
frequent target of criticism was the
assumption that all contaminated
aquifers would be cleaned up as a result
of the TC. Commenters also questioned
the validity of assuming that ground .
water resource conditions in North
Carolina were representative of
conditions across the entire United
States.
  Commenters on the use of aquifer
cleanup1 as the basis for estimating
benefits of the proposed rule asked for
justification of the assumption that  all
aquifers would be cleaned up and an
explanation of the benefits  to human
health and the environment which
would result from the cleanup. The
Agency used a different methodology to
estimate benefits for the final RIA than
was used for the original RIA. For the
final RIA. EPA examined three potential
types  of benefits: human health risk
reduction, resource damage avoided.
and cleanup costs avoided. The
assumption that all aquifers would  be
cleaned up was not used in the final
RIA. In estimating benefits based on
cleanup costs avoided through
controlled subtitle C management of TC
wastes. EPA assumed in the RIA for the
final rule that, for the near term, the
subtitle D facilities with down-grsuient
iveils and with at least some resource
damage (as predicted by the resource
damage analysis) would be the most
likely candidates for cleanup.
  The Agency agrees with the comments
that ground water resource conditions in
North Carolina may not be
representative of conditions across the
entire United States. As a result, in the
final RIA EPA used distributions of
hydrogeologic parameters which were
representative of nationwide conditions.
rather than relying on hydrogeologic
information from one state.

4. Cost-Benefit Comparisons

  In general, commenters argued that
the RIA overestimated likely benefits of
the proposed rule while underestimating
the potential impacts. Commenters
believed that the TC would bring large
quantities of waste into the subtitle C
system with little or no attendant
environmental or health benefit. One
commenter claimed that, after all
indirect impacts are considered, the net
benefits of the rule could be negative.
Another commenter, however, stated
that benefits were actually
underestimated because of assumptions
in the baseline scenario.
  The Agency has used an improved
methodology and additional data in the
final RIA. EPA believes that the final
RIA provides reasonable estimates of
the potential costs and benefits of the
rule. As presented in this section, the
final RIA does indicate that the TC will
bring relatively large quantities of waste
into the subtitle C system, and also
indicates that there will be attendant
benefits. The Agency used cost and
benefit estimates to compare relative
costs and benefits of the various
regulatory options. The analyses were
conducted separately using approaches
constructed to make the best possible
use of available data. The separate
analyses were not meant to be used to
produce absolute measures of cost
effectiveness. The RIA contains
discussion of the Agency's evaluation
and comparison of cost and benefit
results.

5. Small Business Analysis

  The Agency received many comments
on its assessment of the effects of the
proposed TC on small businesses. One
group of comments focused on the
definition chosen by EPA for small
businesses. The Agency was also
criticized for its threshold for
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            Federal Register / Vol. 55. No. 61  /  Thursday. March 29. 1990 / Rules and Regulations      11861
determining if a "substantial number" of
small businesses would suffer
significant economic impacts, and
therefore necessitate the preparation of
a full Regulatory Flexibility Analysis.
Finally, many commenters felt that the
analysis severely underestimated the
impact of the rule on small businesses.
  Commenters asked why the Agency
did not use the standard Small Business
Administration (SBA) criterion of 500
employees to define a small business.
The Agency decided to use the 50
employee definition of a small business
because the RIA estimates facility-level
impacts, and the SBA definition applies
to entire firms. In the absence of data to
estimate firm-level impacts, the Agency
chose the 50 employee cutoff as an
appropriate small facility definition for
the RIA. The SBA definition would
designate most of the establishments in
most of the examined industries as
small facilities, which would obscure
differential impacts on smaller facilities.
  The Agency was criticized for using a
20 percent threshold for determining if a
"substantial number" of small
businesses would be significantly
affected. Commenters claimed that it
was arbitrary to consider the small
business impact negligible if "only 19.9
percent" of small business were
significantly affected. The Agency
recognizes that, for  an individual
facility, the magnitude of impacts is not
altered by the number of other facilities
which are significantly affected.
Nevertheless, the Agency believes that
20 percent is a reasonable benchmark
for defining  a "substantial number" of
small businesses. The 20 percent
threshold is  commonly applied in RIAs
conducted by EPA.
  A large number of commenters
criticized  the overall conclusions of the
small business analysis, declaring that
the analysis severely underestimated
the economic effects of the TC on small
businesses.  Commenters maintained
that the universe of small businesses
was inadequately addressed. Examples
of small businesses not included in the
analysis which commenters felt should
have been considered included service
stations and vehicle maintenance
facilities.  Commenters also mentioned
the expense of performing the TCLP,
claiming that it was an especially
significant hardship for small
businesses.
  As explained in the general discussion
of the industrial sectors included in the
RIA, the Agency made extensive efforts
to identify and include sectors
potentially affected by the TC rule,
including end users of products. And, as
discussed under the comments on
incorporating testing costs, these costs
were not included sinoe generators are
not currently required to test their
wastes. Although EPA maintains that a
full RFA is not necessary for the TC
rule, it realizes that the impact of the
rule could be significant for individual
small enterprises.

E. Paperwork Reduction Act

  The information collection
requirements in this rule  have been
approved by the Office of Management
and Budget (OMB) under the Paper
Reduction Act 44 U.S.C.  3501 et seq..
and have been assigned the following
OMB control numbers: 2050-0007, Land
Disposal Permitting Standards; 2050-
0008, RCRA Closure/Post-Closure; 2050-
0009, Hazardous Waste Storage and
Treatment  Facilities; 2050-0011.
Contingency Plans for Hazardous Waste
Facilities; 2050-0012. General Facility
Operating Requirements; 2050-0013.
Operating Record for Hazardous Waste
Facilities; 2050-0028, Notification of a
Hazardous Waste Activity; 2050-0033.
Reporting,  Recordkeeping,  and Planning
for Ground-Water Monitoring; 2050-
0034, RCRA Hazardous Waste Permit
Application Part A; 2050-0036, RCRA
Financial Assurance Requirements;
2050-0037,  Recordkeeping and Reporting
for RCRA Permitees; and 2050-0039,
Uniform Hazardous Waste Manifest for
Generators and Transporters.

VII. References
1. U.S. EPA.  "Response to Public Comments
    Background Document for the Subsurface
    Fate and Transport Model Used in the
    Toxicity Characteristic Rule", 1990.
2. U.S. EPA.  "Response to Comments
    Background Document for the Toxicity
    Characteristic". 1989.
3. U.S. EPA,  'Technical and Response to
    Comments Background Document for
    Chronic Toxicity Reference Levels",
    1990.
4. U.S. EPA.  "Technical and Response to
    Comments Background Document for the
    TCLP (Method 1311)", 1989.
5. U.S. EPA.  "State Subtitle D Regulations on
    Solid Waste Landfills". Final Volume L
    1988.
6. U.S. EPA.  "National Survey of Solid Waste
    (Municipal) Landfill Facilities". Final
    Report,  EPA/530-SW-88-034.1988.
7. U.S. EPA.  "Summary of Data on Industrial
    Non-hazardous Waste Disposal
    Practices", Final Report December 1985.
8. U.S. EPA. "Toxicity Characteristic
    Regulatory Impact Analysis", 1989.
9. U.S. EPA. "Background Document for
    EPA's Composite Landfill Model
    (EPACML)". 1990.
10. Simkins, S. and M. Alexander. "Models
    for Mineralization Kinetics with the
    Variables of Substrate Concentration
    and Population Density", "Applied and
    Environmental Microbiology", 1984, Vol.
    47, No.  8, pp. 1299-1306.
11. Lewis. D. L. and D. K. Gattie. "Prediction
    of Substrate Removal Rates of Attached
    Microorganisms and of relative
    Contributions of Attached and
    Suspended Communities at Field Sites".
    "Applied and Environmental
    Microbiology". 1988, VoL 54. No. 2. pp.
    434-440.
12. Robinson.). A. and W. G. Characklis.
    "Simultaneous Estimation of Vmax. Km.
    and the Rate of Endogenous Substrate
    Production (R) from Substrate Depletion
    Data". "Microbial Ecology. 1984. Vol. 10.
    pp. 165-178.
13. Karickhoff. S. W. "Chapter 11: Sorption
    Kinetics of Hydrophobic Pollutants in
    Natural Sediments", "Contaminants and
    Sediments, Vol. 2: Fate and Transport.
    Case Studies, Modeling, Toxicity, Ann
    Arbor Science Publishers. Inc. Ann
    Arbor, Michigan, 1980. pp. 193-205.
14. Kohring, G.. J. E. Rogers and I. Wiegel.
    "Anaerobic Biodegradation of 2.4-
    Dichlorophenol in Freshwater Lake
    Sediments at Different Temperatures".
    "Applied and Environmental
    Microbiology", 1989. Vol. 55, No. 2. pp.
    348-353.
15. Hwang, H., R. E. Hodson, and D.  L Lewis.
    "Assessing Interactions of Organic
    Compounds During Biodegradation of
    Complex Waste Mixtures by Naturally
    Occurring Bacterial Assemblages".
    "Environmental Toxicology and
    Chemistry", 1989, VoL 8. pp. 209-214.
16. U.S. EPA. "Screening Survey of Industrial
    Subtitle D Establishments". Draft Final
    Report. December 1987.
17. U.S. EPA, "Analysis of U.S. Municipal
    Waste Combustion Operating Practices".
    May 1989.
18. U.S. EPA, "Cooperative Testing of
    Municipal Sewage Sludges fay the
    Toxicity Characteristic Leaching
    Procedure and Compositional Analysis".
    Draft Final, 1988.
19. U.S. EPA, "Estimates of Waste Generation
    by Cellulosic Manmade Fibers,  Synthetic
    Organic Fibers. Petroleum Refining,
    Rubber and Miscellaneous Plastic
    Products, Leather Tanning and Finishing.
    Oil and Gas Transportation Industries,
    and the Laundry, Cleaning and  Garment
    Services", May 27,1987.
20. U.S. EPA. "Estimates of Waste Generation
    by the Lumber and Wood Products
    Industry", December 9,1987.
21. U.S. EPA, "Estimates of Waste Generation
    by the Organic Chemical Industry",
    December 1987.
22. U.S. EPA, "Estimates of Waste Generation
    by Petroleum Crude Oil and Petroleum
    Products Distribution and Wholesale
    Systems", November 13,1987.
23. U.S. EPA, "Estimates of Waste Generation
    by Plastic Materials and Resins".
    November 1987.
24. U.S. EPA, "Estimates of Waste Generation
    by the Petroleum Refining Industry".
    November 13,1987.
25. U.S. EPA. "Estimates of Waste Generation
    by the Pharmaceutical Industry".
    November 16,1987.
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11862      Federal Register  /  Vol. 55. No.  61 / Thursday.  March  29.  1990 / Rules and Regulations
26. U.S. EPA. "Estimates of Waste Generation
    by the Pulp and Paper Industry". August
    12.1987.
27. U.S. EPA. "Estimates of Waste Generation
    by the Synthetic Fibers Industry".
    November 16.1987.
28. U.S. EPA. "Estimates of Waste Generation
    by Textile Mills", December 15.1987.
29. U.S. EPA. "Synthetic Rubber Industry".
    November 1987.
30. U.S. EPA. "Wastewater Treatment
    Profiles for Industrial Sectors Impacted
    by Proposed Toxicity Characteristic".
    August 19.1988.
31. U.S. EPA. "Wastewater Treatment
    Profiles for Industrial Sectors Impacted
    by Proposed Toxicity Characteristic".
    August 24,1988.
31 U.S. EPA. "Uner Location Risk and Cost
    Analysis Model. Phase II", Draft Report.
    1986.
33. U.S. EPA, "Composition and Management
    of Used Oil Generated in the United
    States". September 1984.
34. U.S. EPA. "Risk Assessment of Proposed
    Waste Oil Standards for the
    Management of Used Oil", August 1985.

List of Subjects in 40 CFR Parts 261.264,
265. 268,271, and 302

  Administrative practice and
procedure, Air pollution control.
Chemicals. Confidential business
information. Hazardous materials
transportation, Hazardous substances.
Hazardous waste. Indian lands.
Intergovernmental relations, Natural
resources. Nuclear materials. Penalties,
Pesticides and pests. Radioactive
materials. Recycling. Reporting and
recordkeeping requirements. Superfund.
Water pollution control. Water supply.
Waste treatment and disposal.
  Dated: March 5.1990.
William K. Reilly,
Administrator.
  For the reasons set out in the
preamble. Chapter I of Title 40 of the
Code of Federal Regulations is amended
as follows:

PART 261—IDENTIFICATION AND
USTING OF HAZARDOUS WASTE

  1. The authority citation for part 261
continues to read as follows:
  Authority: 42 U.S.C. 6905. 6912(a). 6921. and
6922.

  2. Section 261.4 is amended by
revising paragraphs (b)(6)(i)
introductory text, and (b}(9) and by
adding paragraph (b)(10) to read as
follows:

§ 261.4  Exclusions.
*     •     *     *    •

  (b)  * *  *
  (6)(i) Wastes which fail the test for the
Toxicity Characteristic because
chromium is present or are listed in
  subpart D due to the presence of
  chromium, which do not fail the test for
  the Toxicity Characteristic for any other
  constituent or are not listed due to the
  presence of any other constituent, and
  which do not fail the test for any other
  characteristic, if it is shown by a waste
  generator or by waste generators that:
.  •     *     *    *   *

    (9) Solid waste which consists of
  discarded wood or wood products
  which fails the test for the Toxicity
  Characteristic solely for arsenic and
  which is not a hazardous waste for any
  other reason or reasons, if the waste is
  generated by persons who utilize the
  arsenical-treated wood and wood
  products for these materials' intended
  end use.
    (10) Petroleum-contaminated media
  and debris that fail the test for the
  Toxicity Characteristic of § 261.24 and
  are subject to the corrective action
  regulations under part 280 of this
  chapter.
    3. Section 261.8 is added to subpart A
  to read as follows:

  § 261.8  PCS Wastes Regulated Under
  Toxic Substance Control Act
    The disposal of PCB-containing
  dielectric fluid and electric equipment
  containing such fluid authorized for use
  and regulated under part 761 of this
  chapter and that are hazardous only
  because they fail the test for the
 Toxicity Characteristic (Hazardous
 Waste Codes D018 through D043 only)
 are exempt from regulation under parts
 261 through 265. and parts 268,270. and
 124 of this chapter, and the notification
 requirements of section 3010 of RCRA.
   4.  Section 261.24 is revised to read as
 follows:

 §261.24  Toxicity characteristic.
   (a) A solid waste exhibits the
 characteristic of toxicity if, using the test
 methods described in Appendix II or
 equivalent methods approved  by the
 Administrator under the procedures set
 forth in §§ 260.20 and 260.21. the extract
 from a representative sample of the
 waste contains any of the contaminants
 listed in Table 1 at the concentration
 equal to or greater than the respective
 value given in that Table. Where the
 waste contains less than 0.5 percent
 filterable solids, the waste itself, after
 filtering using the methodology outlined
 in Appendix II,  is considered to be the
 extract for the purpose of this section.
   (b) A solid waste that exhibits the
 characteristic of toxicity, but is not
 listed as a hazardous waste in subpart
 D, has the EPA Hazardous Waste
 Number specified in Table 1 which.
 corresponds to the toxic contaminant
 causing it to be hazardous.
TABLE 1.—MAXIMUM CONCENTRATION OF
   CONTAMINANTS   FOR   THE  TOXICITY
   CHARACTERISTIC
EPA
HW
No.'
0004
D005
0018
0006
D019

0020
0021
0022
D007
D023
0024
0025
0026
0016
D027


0028


D029


D030

0012
0031

0032

0033

0034

0008
0013
0009
0014
0035

0036
0037

0038
0010
0011
0039

0015
0040

0041


0042


0017
0043
Contaminant
Arsenic 	 . 	
Barium .
Benzene 	
Cadmium 	
Carbon
tetrachloride.
Chlordane 	
Chlorobenzene 	
Chloroform 	
Chromium
o-Cresol 	
m-Cresol 	
p-Cresol 	
Cresol.... 	
2.4-D 	
1.4-
Oicnioroben-
zene.
1.2-
Dtehloroeth-
ane.
1.1-
Dichloroethy-
tone.
2.4-
Oinitrotoluene.
Endrin 	
Heptachlor (and
its hydroxide).
Hexacfitoroben-
zene.
Hexachlorobuta*
diene.
Haxachtoroe th-
ane.
Lead 	
Lindane 	 	
Mercury ..... 	 	
Methoxychlor 	
Methyl ethyl
ketone.
Nitrobenzene 	
Pentrachloro-
phenol.
Pyridine 	
Selenium 	
Silver 	 , 	
Tetrachloroethyt-
ene.
Toxaphene
Tricrdoroethyl-
ene.
2.4.5-
Trichtoro-
phenol.
2.4.6-
TncMofQ"
phonol.
2,4.5-TP (Sitvex)...
Vinyl chloride 	
CAS No.»
7440-38-2
7440-39-3
71-43-2
7440-43-9
56-23-5

57-74-9
108-90-7
67-66-3
7440-47-3
95-48-7
108-39-4
106-44-5

94-75-7
106-46-7


107-06-2


75-35-4


121-14-2

72 20-fl
76-44-4

118-74-1

87-68-3

67-72-1

7439-92-1
58-89-9
7439-97-6
72-43-5
78-93-3

98-95-3
87-86-5

110-86-1
7782-49-2
7440-22-4
127-18-4

8001-35-2
79-01-6

95-95-4


88-08-2


93-72-1
75-01-4
Regula-
tory
Level
(mg/L)
5.0
100.0
0.5
1.0
0.5

0.03
100.0
6.0
5.0.
4 200.0
•200.0
•200.0
•200.0
10.0
7.5


0.5


0.7


0.13

0.02
1.008

0.13

0.5

3.0

5.0
0.4
0.2
10.0
200.0

2.0
100.0

'5.0
1.0
5.0
0.7

0.5
0.5

400.0


2.0


1.0
. 02
  i Hazardous waste number.
  * Chemical abstracts service number.
  ° Ouantitation limit is greater than the calculated
regulatory level. The quantitation limit therefore be-
comes the regulatory level.
  • II o-. nv. and p-Cresol concentrations cannot be
differentiated, the total cresol (O026) concentration
is used. The regulatory level of total cresol to 200
mg/L
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             Federal Register  / Vol.  55.  No.  61 /  Thursday. March 29.  1990  / Rules and  Regulations      11863
  5. Section 261.30 is amended by
revising paragraph (b) to read as
follows:
§ 261.30  General.
*     *     *    *     •

  (b) The Administrator will indicate his
basis for listing the classes or types of
wastes listed in this subpart by
employing one or more of the following
Hazard Codes:

Ignitable Waste	  (I)
Corrosive Waste	  (C)
Reactive Waste	  (R)
Tbxicity Characteristic Waste	  (E)
Acute Hazardous Waste	  (H)
Toxic Waste	  (T)

Appendix VII identifies the constituent
which caused the Administrator to list
the waste as a Toxicity Characteristic
Waste (E) or Toxic Waste  (T) in
§§261.31 and 261.32.
  6. Appendix II of par* 261 is revised to
read as follows:
Appendix II—Method 1311 Toxitity
Characteristic Leaching Procedure
(TCLP)

1.0 Scope dnd Application
•  1.1  The TCLP is designed to determine the
mobility of both organic and inorganic   .
contaminants present in liquid, solid, and
multiphasic wastes.
  1.2  If a total analysis of the waste
demonstrates that individual contaminants
are not present in the waste, or that they are
present but at such  low concentrations that
the appropriate regulatory thresholds could
not possibly be exceeded, the TCLP need not
be run.
  1.3  If an analysis of any one of the liquid
fractions of the TCLP extract indicates that a
regulated compound is present at such high
levels that even after accounting for dilution
from the other fractions of the extract the
concentration would be above the regulatory
threshold for that compound, then the waste
is hazardous and it  is not necessary to
analyze the remaining fractions of the
extract.
  1.4  If an analysis of extract obtained
using a bottle extractor shows that the
concentration of any regulated volatile
contaminant exceeds the regulatory threshold
for that compound, then the waste is
hazardous and extraction using the ZHE is
not necessary. However, extract from a bottle
extractor cannot be used to demonstrate tha*
the concentration of volatile compounds is
below the regulatory threshold.

2.0 Summary of'Method (see Figure 1)
  2.1  For liquid wastes (i.e..  those
containing less than 0.5 percent dry solid
material), the waste, after filtration through a
0.6 to 0.8-um glass  fiber filter,  is defined as
the TCLP extract.
  2.2  For wastes  containing greater than or
equal to 0.5 percent solids, the liquid, if any,
is separated from the solid phase and stored
for later analysis: the solid phase, if
necessary, is reduced in particle size. The
solid phase is extracted with an amount of
extraction fluid equal to 20 times the weight
of the solid phase.  The extraction fluid
employed is a function of the alkalinity of the
solid phase of the waste. A special extractor
vessel is used when testing for volatile
contaminants (see Table 1 for a list of volatile,
compounds). Following extraction, the liquid
extract is separated from the solid phase by
filtration through a 0.6 to 0.8-um glass fiber
filter.
BttJJNa CODE 6SSO-50-M
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11864      Federal Register / Vol.  55,  No. 61 / Thursday^ March 29, 1990  / Rules and Regulations
                                Figure 1 Metho'd 1311 riovehut

                       Uie a iub-*aaiple  of vail*
                                CKtract
                          H/appropriate fluid-
                          1)  Extractor v/oage
                           for non-volatile*
                           2)  ZHE d.vio. for
                               volatilu
                  Solid
S»parat« ••tract
  froa »olid «/
0.6-0.8 UB gla*«
 ' fiber filter
 Meaaure- amount-of
liquid  and analyze-
  (natheaatieallx
•oo«bine reault w/
•result of extract
     analyaia)
                                   Liquid
                                                                             BILUNQ CODE 6S60-60-C
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           Federal  Register /  Vol. 55.  No.  61 /  Thursday. March  29. 1990 /  Rules and Regulations       11865
TABLE 1.—VOLATILE CONTAMINANTS •
Compound
Acetone 	 _ 	 	 	 _ 	 _ 	
Benzene 	 _ 	
n-Butyl alcohol .... 	 	 	 .'. 	 _ 	
Cartxin disulfide 	 	
Carbon tetrachloride 	 _ 	
Chlorobenzene...- 	 	
Chloroform 	 „.. 	 	 _._... „.. .
1 ,2-Dicrtkxoethane .._ 	 _..
1 . 1 -Dichkxoethylene 	 _...._.._ 	 __...
Ethyl acetate .... 	 .... 	 .... 	 ......
Ethyl benzene 	 ~ 	 ,,,, L , 	 ...
Ethyl ether . 	
Isobutanol 	 	 	 	
Metftanol 	 ..
Methylene chloride 	 	 	
Methyl ethyl ketone 	
Methyl teobutyl ketone. 	 	 - 	 ; —
Tetrachloroethylene 	 _ 	
Toluene 	 «.™ 	 ............. 	 	
1,1,1 -Trichloroethane 	 .
Trlchloroethylene 	 .. 	
Trichlerof luoromethane ._ 	 	
1 . 1 ,2-Trichkxo-l ,2,2-trifluoroethane —
Vinyl chloride 	 	 	
CAS no.
67-64-1
71-43-2
71-36-3
75-15-O
66-23-5
108-90-7
67-66-3
107-06-2
75-35-4
141-78-6
100-41-4
60-29-7
78-83-1
67-56-1
75-09-2
• 78-93-3
108-10-1
127-18-4
108-88-3
71-55-6
79-01-6
75-69-4
76-13-1
75-01-4
TABLE i.—VOLATILE CONTAMINANTS '—
               Continued
Compound
Xylene 	 	 	
CAS no.
1330-20-7
                                            1 When testing lor any or all of these contami-
                                          nar is, the zero-headspace extractor vessel shall be
                                          used instead of the bottle extractor.

                                            2.3  If compatible (i.e., multiple phases will
                                          not form on combination), the initial liquid
                                          phase of the waste ia added to the liquid
                                          extract, and these are analyzed together. If
                                          incompatible, the liquids are analyzed
                                          separately and the results are mathematically
                                          combined to yield a volume-weighted
                                          average concentration.

                                          3.0   Interferences
                                            3.1  Potential interferences that may be
                                          encountered during analysis are discussed in
                                          the individual analytical methods.
4.0  Apparatus and Materials
  4.1  Agitation apparatus: The agitation
apparatus must be capable of rotating the
extraction vessel in an end-over-end fashion
(see Figure 2) at 30 +2 rpm. Suitable devices
known to EPA are identified in Table 2.
  4.2  Extraction  Vessel:
  4.2.1  Zero-Headspace Extraction Vessel
(ZHE). This device is for use only when the
waste is being tested for the mobility of
volatile constituents (i.e., those listed in  .  .
Table 1). The ZHE (depicted in Figure 3)
allows for liquid/solid separation within the
device, and effectively precludes headspace.
This type of vessel allows for initial liquid/
solid separation, extraction, and final extract
filtration without opening the vessel (see step
4.3.1). The vessels shall have an internal
volume of 500-600 mL and be equipped to
accommodate a 90-110 mm filter. The devices
contain VITON R ' O-rings which should be
replaced frequently. Suitable ZHE devices
known to EPA are identified in Table 3.
BILLING CODE 6S60-60-M
                                                                                        1 VITON " is a trademark of Du Pont.
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A1B66   Federal Register / Vol. 55. No. 61 / Thursday March 29. 1990 / Rules and Regulations
        Motor
     (30 ± 2 rpm)
Extraction Vessel Holder
      Figure 2.  Rotary Agitation Apparatus
BILLING CODE 6560-SO-C
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            Federal  Register / Vol.  55.  No. 61  /  Thursday. March 29. 1990  /  Rules and Regulations      11867




                                   TABLE 2.—SUITABLE ROTARY AGITATION APPARATUS '
Company
Analytical Testing and Consulting Services Inc
Associated Design and Manufacturing Company
Environmental Machine and Design Inc 	 	
IRA Machine Shop and Laboratory . .. .
Lars Lande Manufacturing
Mitlipore Corp . .... - 	

Location
Warrington. PA (215) 343-4490..
Alexandria VA (703) 543-5999 ..
Lynchburg, VA (804) 845-6424 ..
Santurce. PR (809) 752-4004 	
Whitmore Lake, Ml (313) 449-
4116.
Bedford, MA (800) 225-3384 	

Model no.
2-ZHE or 4-bottle extractor (DC20S); 4-ZHE or
8-bottle extractor (DC20); 6-ZHE or 12-bottle
extractor (DC20B).
2-vessel (3740-2) 4-vessel (3740-4). 6- vessel
(3740-6). 8-vessel (3740-8). 12-vessel
(3740-12). 24-vessel (3740-24).
8-vessel (08-00-00). 4-vessel (04-00-00).
8-vessel (011001).
10-vessel (10VRE) 5-vessel (5 VRE).
4-ZHE or 4 1 -liter bottle extractor
(YT300RAHW).
   1 Any device that rotates the extraction vessel in an end-over-end fashion at 30 +2 rpm is acceptable.
BILLING CODE 6S60-50-M
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11868    Federal Register / Vol. 55. No. 01 / Thursday. March 29, 1990 / Rules and Regulations
                       Uquid Inlet/Outlet Valve
                 crp

    Top Range —^P  ^

     Support Screen^
      Support Seme
    '/
IHtter//
       ffi
       Vlton o-rings
 Bottom Range
  Pressurized Gas
  Inlet/Outlet Valve
               Piston
c
e
                              Gas
                     Pressure
                      Gauge
Figure 3.  Zero-Headspace Extractor (ZHE)
BtLUNQ CODE 6560-SO-C
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             Federal  Register / Vol. 55. No. 61 / Thursday, March 29.  1990 / Rules  and Regulations      11869
                                  TABLE 3.—SUITABLE ZERO-HEADSPACE EXTRACTOR VESSELS '
Company
Analytical Tasting & Consulting Services, Inc 	 	 	
Associated Design and Manufacturing Company 	 _ ._•. 	 	 .
Lars Lanria Manufacturing * „ ,„_ , ,
Millipore Corporation 	 	
Environmental Machine and Design, Inc 	 _

Location
Warrington, PA (215) 343-4490..
Alexandria, VA (703) 549-5999 ..
Whitmora Lake. Ml (313) 449-
4116.
Bedford, MA (800) 225-3384 	
Lynchburg. VA (804) 845-6424 ..

Model no.
C102, Mechanical Pressure Devica.
3745-ZHE, Gas Pressure Device.
ZHE-11, Gas Pressure Device.
YT3009OHW, Gas Pressure Device
VOLA-TOX1. Gas Gas Pressure Device.

    1 Any device that meets the specifications listed in Section 4.2.1 of the method is suitable.
    * This device uses a 110 mm filter.
  For the ZHE to be acceptable for use, the
piston within the ZHE should be able to be
moved with approximately 15 psi or less. If it
takes more pressure to- move the piston, the
O-rings in the device should be replaced. If
this does not solve the problem, the ZHE is
unacceptable for TCLP analyses and the
manufacturer should be contacted.
  The ZHE should be checked for leaks after
every extraction. If the device contains a  •
built-in pressure gauge, pressurize the device
to 50 psi, allow it to stand unattended for 1
hour, and recheck the pressure. If the device
does not have a built-in pressure gauge,
pressurize the device to SO psi, submerge it m
water, and check for the presence of air
bubbles escaping from any of the fittings. If
pressure is lost, check all fittings and inspect
and replace O-rings, if necessary. Retest the
device. If leakage problems cannot be solved,
the manufacturer should be contacted.
  Some ZHEs use gas pressure to actuate the
ZHE piston, while others use mechanical
pressure (see Table 3). Whereas the volatile*
procedure (see section ao) refers to pounds-
per-square-inch (psi). for the mechanically
actuated piston, the pressure applied is
measured in torque-inch-pounds. Refer to the
manufacturer's instructions as to the proper
conversion.
  4.&2  Bottle Extraction Vessel. Wnen the
waste is being evaluated using the
nonvolatile extraction, a jar with sufficient
capacity to hold the sample and the
extraction fluid is needed. Headspace is
allowed in this vessel.
  The extraction bottles may be constructed
from various materials, depending on the
contaminants to be analyzed and the nature
of the waste (see Step 4.3 J). It is
recommended that borosilicate glass bottles
be used instead of other types of glass;
especially when inorganics are of concern.
Plastic bottles, other than polytetrafluoro-
ethylene, shall not be used if organic* are to
be investigated. Bottles are available from a
number of laboratory suppliers. When this
type of extraction vessel is used, the filtration
device discussed in Step 4.3.2 is used for
initial liquid/solid separation and final
extract filtration.
  4.3  Filtration Devices: It is recommended
that all filtrations be performed in • hood.
  4.3.1  Zero-Headspace Extractor Vessel
(ZHE): When the waste is evaluated for
volatiles. the zero-headspace extraction
vessel described in section 4il is used for
filtration. The device shall be capable of
supporting and keeping in place the glass
fiber filter and be able to withstand the
pressure needed to accomplish separation. (SO
psi).
  Note: When it is suspected that the glass
fiber filter has been ruptured, an in-line glass
fiber filter may be used to filter the material
within the ZHE.
  4A2  Filter Holder. When the waste is.
evaluated for other than volatile compounds.
any filter holder capable of supporting » glass

 TABLE 4.—SUITABLE FILTER HOLDERS *
fiber filter and able to withstand the pressure
needed to accomplish separation may be
used. Suitable filter holders range from
simple vacuum units to relatively complex
systems capable of exerting pressures of up
to 50 psi or more. The type of filter holder
used depends on the properties of the
material to be filtered (see Step 4.3.3]. These
devices shall have a minimum internal
volume of 300 mL and be equipped to
accommodate a minimum filter size of 47 mm
(filter holders having an internal capacity of
1.5 L or greater and equipped to
accommodate a 142 mm diameter filter are
recommended). Vacuum filtration can only be
used for wastes with low solids content (< 10
percent) and for highly granular liquid-
containing wastes. All other types of wastes
should*be filtered using positive pressure
filtration. Suitable filter holders known to
EPA are shown in Table 4.
  4.3J  Materials of Construction:
Extraction, vessels and filtration devices shall
be made of inert materials which will not
leach or absorb waste components. Glass.
polytetraflunroethylene (PTFEf.or type 316
stainless steel equipment may be. used when
evaluating the mobility of bath, organic and
inorganic components. Devices made of high-
density polyethylene (HOPE), polypropylene.
or polyvinyl chloride may be used only when
evaluating the mobility oi metals. Borosilicate
glass bottles are recommended foe use over
other types of glass bottles, especially when
inorganics are constituents, of concern.
CfiiMMnu
*I«MI^^VII<

Micro Filtration System*
Uillinnra r^nrrwatinn

Location
Pleasanton CA (800) 802-771 1
Dublin, CA (800) 334-7132 (415) 828-6010
Bedford MA (800) 225-3384 . — ....

Model/Catalogue no.
4?'!9in 410400
3fJJ>4fH}flll4OO. , .
VT30142HW XX1004700.. 	 	 	 _. .

So« (urn)
142 mm
47mm.
14Zmm
47mm
142 mm
47 mm
' Any dMtn capable of separating Ow Iquid from the solid phase of thn waste is suitable, providing that il is chemicaiy compafibto *iO» the waste and the
constituents to be analyzed. Ptaske devices (not fisted above> may b» used when only inoiganic contaminants are oi concern. The 142 mm SOP «• holder is
roconifnondod.
  4.4  Filters: Filters shall be made of
borosilicate glass fiber, shall contain no
binder materials, and shall have an effective
pore size of 0.6 to O.B-um or equivalent. Fitters
known to EPA which meet these
specifications are identified in Tables. Pre-
filters must not be used. When evaluating the
mobility of metals, filters shall be acid-
washed prior to- use by rinsing with IN nitric
acid followed by three consecutive rinses
with deionized distilled water (a minimum of
1-L per rinse is recommended). Class fiber
filters are fragile and should be handled with
care.
  4£  pH meters: The meter should be
accurate to +0.05 units at 25 *C.
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11870      Federal Register  /  Vol.  55; No. 61  / Thursday.  March 29. 1990' / Rules  and Regulations

                                               TABLE 5.—SUITABLE FILTER MEDIA »
Company
Millipore Corporation
Nudeopore Corporation..............™...™™™ 	
Whatman Laboratory Products. Inc...™ 	 . ...............
Micro Filtration Systems 	 —
Location
Bedford. MA (BOO) 225-3384
Pteasanton, CA (415) 463-2530™ 	 	
Clifton, NJ (201) 773-5800 . _ 	 	
Dublin, CA (800) 334-7132 (415) 828-6010 	
Model
AP40
211625 . 	 	 	
QFf . 	
GF7S 	 	 	
Pore size
07
0.7
0.7
0.7
    1 Any filter that meets the specifications in Section 4.4 of the Method is suitable.
  4.6  ZHE extract collection devices:
TEDLAR1"' bags or glass, stainless steel or
PTFE gas-tight syringes are used to collect
the initial liquid phase and the final extract of
the waste when using the ZHE device. The
devices listed are recommended for use
under the following conditions:	
  4.6.1  If a waste contains an aqueous
liquid phase or if a waste does not contain a
significant amount of nonaqueous liquid (I.e..
<1 percent of total waste), the TEDLAR" bag
or a 600 mL syringe should be used to collect.
and combine the initial liquid and solid
extract.
  4.6.2  If a waste contains a significant
amount of nonaqueous liquid in the initial
liquid phase (i.e.. >1 percent of total waste).
the syringe or the TEDLAR1 bag may be used
for both the initial solid/liquid separation
and the final extract filtration. However,
analysts should use one or the other, not
both.
  4.6.3  If the waste contains no initial liquid
phase (is 100 percent solid) or has no
significant solid phase (is 100 percent liquid).
either the TEDLAR" bag or the syringe may
be used. If the syringe is used, discard the
first 5 mL of liquid expressed from the device.
The remaining aliquots are used for analysis.
  4.7  ZHE extraction fluid transfer devices:
Any device capable of transferring the  •
extraction fluid into the ZHE without
changing the nature of the extraction fluid is
acceptable (e.g., a positive displacement or
peristaltic pump, a. gas tight syringe, pressure
filtration unit (See Step 4.3.2). or other ZHE
device).
  4.8  Laboratory balance: Any laboratory
balance accurate to within +0.01 grams may
be used (all weight measurements are to be
within +0.1 grams).

5.0  Reagents
  5.1   Reagent water. Reagent water is
defined as water in which  an interferant is
not observed at or above the methods
detection limit of the analyte(s) of interest.
For nonvolatile extractions. ASTM Type II
water or equivalent meets the definition of
reagent water. For volatile extractions, it is
recommended that reagent water be
generated by any of the following methods.
Reagent water should be monitored
periodically for impurities.
  5.1.1  Reagent water for volatile
extractions may be generated by passing tap
water through a carbon filter bed containing
about 500 grams of activated carbon (Calgon
Corp.. Filtrasorb-300 or equivalent).
  5.1.2  A water purification system
(Millipore Super-Q or equivalent) may also be
used to generate reagent water for volatile
extractions.
  ' TEDLAR' i> a registered trademark of Du Pont
  5.1.3  Reagent water for volatile
extractions may also be prepared by boiling
water for 15 minutes: Subsequently, while
maintaining the water temperature at 90 +5
*C, bubble a contaminant-free inert gas (e.g..
nitrogen) through the water for 1 hour. While
still hot, transfer the water to a narrow mouth
screw-cap bottle under zero-headspace and
seal with a.Teflon-lined septum and cap.
  5.2  Hydrochloric acid (IN), HC1. made
from ACS reagent grade.
  5.3  Nitric acid (IN). HNOj. made from
ACS reagent grade.
  5.4  Sodium hydroxide (IN). NaOH. made
from ACS reagent grade.
  5.5  Glacicl acetic acid. HOAc. ACS
reagent grade.
  5.6  Extraction fluid.
  5.6.1  Extraction fluid #1: Add 5.7 mL
glacial HOAc to 500 mL of the appropriate
water (See  Step 5.1). add 64.3 mL of IN
NaOH, and dilute to a volume of 1 liter.
•When correctly prepared, the pH of this fluid
will be 4.93 +0.05.
  S.&2  Extraction fluid #2: Dilute 5.7 mL
glacial HOAc with ASTM Type II water (See
Step 5.1) to a volume of 1 liter. When
correctly prepared, the pH of this fluid will be
2.88+0.05.
  Note: These extraction fluids should be
monitored frequently for impurities. The pH
should be checked prior to use to ensure that
these fluids are made up accurately. If
impurities are found or the pH is not within
the above specifications, the fluid shall be
discarded and fresh extraction fluid
prepared.
  5.7  Analytical standards prepared
according to the appropriate analytical
method.

6.0 Sample Collection, Preservation, and
Handling
  6.1  All samples shall be collected using
an appropriate sampling plan.
  6.2  The TCLP may  place requirements on
the minimal size of the field sample
depending upon the physical state or states of
the waste and the contaminants of. concern.
An aliquot is needed for preliminary
evaluation of which extraction fluid is to  be
used for the nonvolatile contaminant
extraction procedure. Another aliquot may be
needed to actually conduct the nonvolatile
extraction (see section 1.4 concerning the use
of this extract for volatile organics). If
volatile organics are of concern, another
aliquot may be needed. Quality control
measures may require  additional aliquots.
Further, it is always wise to collect more
sample just in case something  goes wrong
with the initial attempt to conduct the test
  6.3  Preservatives shall not  be added to
samples.
  6.4  Samples may be refrigerated unless
refrigeration results in irreversible physical
change to the waste. If precipitation occurs,
the entire sample (including precipitate)
should be extracted.
  6.5  When the waste is to be evaluated for
volatile contaminants, care shall be taken to
minimize the loss of volatiles. Samples shall
be taken and stored in a manner to prevent
the loss of volatile contaminants (e.g..
samples should be collected in Teflon-lined
septum capped vials and stored at 4 *C, until
ready to be opened prior to extraction).
  6.6  TCLP extracts should be prepared for
analysis and analyzed as soon as possible
following extraction. Extracts or portions of
extracts for metallic contaminant
determinations must be acidified with nitric
acid to a pH <2, unless precipitation occurs
(see section 8.14 if precipitation occurs).
Extracts or portions of extracts for organic
contaminant determinations shall not be
allowed to come into contact with the
atmosphere (i.e., no headspace) to prevent
losses. See section 10.0 (QA requirements) for
acceptable sample and extract holding times.

7.0  Preliminary Evaluations
  Perform preliminary TCLP evaluation* on a
minimum 100 gram aliqont of waste. This
aliquot may not actually  undergo TCLP
extraction. These preliminary evaluations
include: (1) determination of the percent
solids; (2) determination of whether the waste
contains insignificant solids and is, therefore.
its own extract after filtration; (3)
determination of whether the solid portion of
the waste requires particle  size reduction:
and (4) determination of which of the two
extraction fluids are to be used for the
nonvolatile TCLP extraction of the waste.
  7.1  Preliminary determination of percent
solids: Percent solids is defined as that
fraction of a waste sample (as a percentage
•of the total sample) from which no liquid may
be forced out by an applied pressure, as
described below.
 . 7.1.1 If the waste will obviously yield no
free liquid when subjected to pressure • -
filtration (i.e., is 100% solids) proceed to Step
7.3..
  7.1.2 If the sample is liquid or multiphasic,
liquid/solid separation to make a preliminary
determination of percent solids is required.
This involves the filtration device described
in Step 4.3.2 and is outlined in Steps 7.1.3
through 7.1.9.
  7.1.3 Pre-weigh the  filter and the
container that will receive the filtrate.
  7.1.4 Assemble the filter holder and filter
following the manufacturer's instructions.
Place the filter on the support screen  and
secure.
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             Federal  Register /  Vol.  55,  No. 61  / Thursday,  March 29, 1990  / Rules and Regulations      11871
  7.1.5  Weigh out a- subsample of the waste
'100 gram minimum > and record the weight.
  7.1.6  Allow slurries to stand to permit the
solid phase to settle. Wattes that settle
slowly may be centrifuged prior to filtration.
Centrifugation is to be used onty as. an aid to
filtration. If used, the liquid should be
decanted and filtered followed by filtration of
the solid portion of the waste, through the
same filtration system.
  7.1.7  Quantitatively transfer the waste
sample to the filter holder (liquid and solid
phases). Spread the waste sample evenly
over the surface of the filter. If filtration of
the waste at 4 *C reduces the amount of
expressed liquid over what would be
expressed at room temperature then- allow
the sample to warm tip to room temperature
in the device before filtering.
  Note: If waste material f > I  percent of
original sample weight) ha* obviously
adhered to the container used to transfer the
sample to the filtration apparatus, determine
the weight of this residue and  subtract it from
the sample weight determined in. Step 7.1.5 to
determine the weight of me waste sample
that will be filtered.
  Gradually apply vacuum or gentie pressure
of 1-10 psi. until air or pressurizing-gas moves
through the filter. If this point is not reached
under 10 psi, and if no additional liquid has
passed through the Miter in any 2-minute
interval, slowly increase the pressure in 10-
psi increments to a maximum of 50 psi. After
each incremental increase of 10-psi. if the
pressurizing gas ha* net moved through the
filter, and if no additional liquid has-passed
through the filler in any Z-mmote BttenraL
proceed to the next 10-pin iaaement. When
the pressurising gas begins to move through
the filter, or when liquid flaw bar ceased at
50 psi (i.e~ filtration does not result in any
additional filtrate within aay 2.-mimite
period), stop the filtration.
  Note: Instantaneous application of high
pressure can degrade the glass fiber filter and
may cause premature plugging.
  7.1.8  The material kt the filter holder is
defined as the solid phase of the waste, and
the filtrate is defined •• the liquid phase.
  Note: Some wastes, such a* oily wastes
and some paint wastes, witt obviously
contain some material that appears to be a
liquid. Even after applying vacuum or
pressure filtration, as outlined in Step 7.1.7.
this material may not filter. If this is the case.
the material within the filtration device is
defined aa a solid. Do not replace the. original
filter with a fresh filter under any
circumstances. Use only one filter.
  7X9  Determine the weight of the liquid
phase by subtracting' the weight of the filtrate
container (see Step 7.1.3} from the total
weight of the filtrate-filled container.
Determine the weight of the solid phase of
the waste sample by subtracting the weight
of the liquid phase from the weight oi the
total waste sample, as. determined in Step
7.1.5 or 7.1 J.
  Record the weight oi the liquid and solid
phases. Calculate the percent solids as
follows:
                                 Percent solids
                                                           Weight of solid (Step 7.1.91
                                                     Total weight of waste (Step 7.1.5 or 7.1.7)
                                                •X100
  7.2  If the percent solids determined in
Step 7.1.9 is equal to or greater than. 0.5%,
then proceed either to- Step 7.3 to determine
whether the solid material requires particle
size reduction or to Step 7.Z1 if it i* noticed
that a small amount of the filtrate is
entrained in wetting of the filter. If the
percent solids determined in Step.7.L9 is less
than 0.5%, then proceed to Step 8.9 if the.
nonvolatile TCLP is to be performed and to.
section 9.0 with a fresh, portion of the waste if
the volatile TCLP is to be performed.
  7.2.1  Remove the solid phase and filter
from the filtration apparatus.
  722.  Dry the filter and solid phase at 100
+20 *C until two successive weighing yield
the same value within +1 percent Record
the final weight.
  Note: Caution should be taken ta ensure
that the subject solid will not flash upon
heating. It is recommended that the drying
oven be vented to e hood or other
appropriate device.
  723  Calculate the percent dry solids as
follows:
                          Percent dry soKds  = •
      (Weight of dry waste-(-filter)-tared weight of filter

          Initial weight of waste (Step 7.1.5 or 7.1.7)
                                                                                                     x  100
  7.2.4  If the percent dry solids is less than
0.5 percent then proceed to Step 8.9 if the
nonvolatile TCLP is to be performed, and to
Section 9.0 if the volatile TCLP is to be
performed. If the percent dry solids is greater
than or equal to 0.5%, and if the nonvolatile
TCLP is to be performed, return to the
beginning of this Section (7.0) and. with a
fresh portion of waste, determine whether
particle size reduction is necessary (Step 7.3)
and determine the appropriate extraction
fluid (Step 7.4). If only the volatile TCLP is to
be performed, see the note in Step 7.4.
  7.3  Determination of whether the waste
requires particle-size reduction (particle-size
is reduced during this step): Using the solid
portion of the waste, evaluate the solid for
particle size. Particle-size reduction, is
required, unless the solid has a surface area
per gram of material equal to- or greater than
3.1 cm9, or is smaller than 1 cm. in its
narrowest dimension (i-e- is capable of
passing through a 9.5 mm (0.375 inch)
standard sieve). If the surface area is smaller
or the particle size larger than described
above, prepare the solid portion of the waste
for extraction by crushing, cutting, or grinding
the waste to e surface area or particle-sire as
described above. If the solids are prepared
for organic volatile* extraction, special
precautions must be taken, see Step 9.6.
  Note: Surface area criteria are meant for
filamentous (e.g., paper, cloth, and similar)
waste materials. Actual measurement of
surface area is not required, not is it
recommended. For materials that do not
obviously meet the criteria,  sample-specific
methods would need to be developed and
employed to measure the surface area. Such
methodology is currently not available.
  7.4   Determination of appropriate
extraction fluid: If the solid  content of the
waste is greater than or equal to 0-5 percent
and if TCLP extraction for nonvolatile
constituents will take place  (Section 8.0),
perform the determination of the appropriate
fluid (Step 5.6) ta use fox the nonvolatiles
extraction as follows:
  Note: TCLP extraction for volatile
constituents uses only extraction fluid #1
(Step 5.6.1). Therefore, if TCLP extraction for
nonvolatiles is not required, proceed to
Section 9.0.
  7.4.1  Weigh out a small subsample of the
solid phase of the waste, reduce, the solid (if
necessary) to a particle-size of approximately
1 mm in diameter or less, and transfer 5.0
grams of the solid phase of the waste to a
500-mL beaker or Erlenmeyer flask.
  7.4.2  Add 96.5 mL of reagent water
(ASTM Type II) to the beaker, cover with a
watchglass, and stir vigorously for 5 minutes
using a magnetic stirrer. Measure and record
the pH. If the pH is <5.0, use extraction fluid
#1. Proceed to Section 8.0.
  7.4.3  If the pH from Step 7.4.2 is >5.0. add
3.5 mL IN HC1. slurry briefly, cover with a
watchglass. heat to 50 °C, and hoU at SO °C
for 10 minutes.
  7.4.4  Let the solution cool to room
temperature and record the pH. If the pH is
<5.0. use  extraction fluid ffl.lf the pH is
>5.0, use  extraction, fluid #2. Proceed to
Section 8.0.
  7.5 If the aliquot of the waste used for the
preliminary evaluation (Steps 7.1-7.4) was
determined to be 100% solid at Step 7.1.1.
then it can be used for the Section 8.O
extraction (assuming at least 100 grams
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11872      Federal  Register / Vol. 55. No. 61 / Thursday, March 29.  1990  / Rules  and iRegniattoha
remain), and the section 9.0 extraction
(assuming at least 25 grams remain). If the
aliquot was subjected to the procedure in
Step 7.1.7, then another aliquot shall be used
for the volatile extraction procedure in
Section 9.0. The aliquot of the waste
subjected to the procedure in Step 7.1.7 might
be appropriate for use for the section 8.0
extraction if an adequate amount of solid (as
determined by Step 7.1.9) was obtained. The
amount of solid necessary is dependent upon
whether a sufficient amount of extract will be
produced to support the analyses. If an
adequate amount of solid remains, proceed to
Step 8.10 of the nonvolatile TCLP extraction.

8.0  Procedure When Volatiles Are Not
Involved
  A minimum sample size of 100 grams (solid
and liquid phases] is required. In some cases,
a larger sample size may be appropriate,
depending on the solids content of the waste
sample (percent solids. See Step 7.1), whether
the initial liquid phase of the waste will be
miscible with the aqueous extract of the
solid, and whether inorganics,  semivolatile
organics, pesticides, and herbicides are all
analytes  of concern. Enough solids should be
generated for extraction such that the volume
of TCLP extract will be  sufficient to support
all of the analyses required. If the amount of
extract generated by a single TCLP extraction
will not be sufficient to  perform all of the
analyses, more than one extraction may be
performed and the extracts from each
combined and aliquoted- for analysis.
  8.1  If  the waste will  obviously yield no
liquid when subjected to pressure filtration .
(i.e., is 100 percent solid, see Step 7.1 )r weigh
out a subsample of the waste (100 gram  .
minimum) and proceed to Step 8.9.
  8.2  If  the sample is liquid or multiphasic,
liquid/solid separation is required. This
involves the filtration device described in
Step 4.3.2 and is outlined in Steps 8.3 to 8.8.  •
  8.3  Pre-weigh the container that will   •
receive the filtrate.
  8.4  Assemble the filter holder and filter
following the manufacturer's instructions.
Place the filter on the support screen and
secure. Acid wash the filter if evaluating the
mobility of metals (see Step 4.4).
  Note: Acid washed filters may be used for
all nonvolatile extractions even when metals
are not of concern.
   8.S  Weigh out a subsample of the: waste
 (100 gram minimum) and record the weight If
 the waste contains O.S percent dry solids (Step 7.1
 or 7.2), use the percent solids information
 obtained in Step 7.1 to determine the
 optimum sample size (100 gram minimum) for
 filtration. Enough solids should be generated
 by filtration to support the analyses to be
 performed on the TCLP extract
 .  8.8  Allow slurries .to stand to permit the
 solid phase to settle. Wastes that settle
 slowly may be centrifuged prior to filtration.
 Use centrifugation only as an aid to filtration.
 If the waste is centrifuged, the liquid should
 be decanted and filtered followed by
 filtration of the solid portion of the waste
 through the same filtration system.
   8.7  Quantitatively  transfer the waste
 sample (liquid and solid phases) to the filter
 holder (see Step 4.3.2). Spread the waste
 sample evenly over the surface of the filter. If
 filtration of the waste  at 4 °C reduces the
 amount of expressed liquid over what would
 be expressed at room  temperature, then
 allow the sample to warm up to room
 temperature in the device before filtering.
   Note: If waste material (>1 percent of the
 original sample weight) has obviously
 adhered to the container used to transfer the
 sample to the filtration apparatus, determine
 the weight of this residue and subtract it from
 the sample weight determined in Step 8.5,  to
 determine the weight of the waste sample
 that will be filtered.
   Gradually apply vacuum or gentle pressure
 of 1-10 psi. until air or pressurizing gas moves
 through the filter. If this point is not reached
 under 10 psi, and if no additional liquid has  •
 passed through the filter in any 2-minute
 interval, slowly increase the pressure in 10-
 psi increments to a maximum of SO psi. After
 each incremental increase of 10 psi, if the
 pressurizing gas has not moved through the
 filter, and if no additional liquid has passed
 through the filter in any 2-minute interval,
 proceed to the next 10-psi increment. When
 the pressurizing gas begins to move through
 the filter, or when the  liquid flow has ceased
at 50 psi (i-e., filtration does not result in any
additional filtrate within a 2-minute period),
stop the filtration.
  Note: Instantaneous application of high
pressure can degrade the glass fiber filter and
may cause premature plugging.
  8.8   The material in the filter holder is
defined as the solid phase of the waste, and
the filtrate is defined as the liquid phase.
Weigh the filtrate. The liquid phase may now
be either analyzed (See Step 8.12) or stored at
4 *C until time of analysis.
  Note: Some wastes, such as oily waste*
and some paint wastes, will obviously-.
contain some material that appears to be a
liquid. Even  after applying vacuum or
pressure filtration, as outlined in Step 8.7, this
material may not filter. If this is the case, the
material within the filtration device is
defined as a solid and is carried through the
extraction as a solid. Do not replace the
original filter with a fresh filter under any
circumstances. Use only one filter.
  8.9   If the waste contains <0.5 percent dry
solids (see Step 72], proceed to Step 8.13. If
the waste contains >0.5 percent dry solids
(see Step 7.1 or 7.2), and if particle-size
reduction of the solid was needed in Step 7.3,
proceed to Step 8.10. If the waste as received
passes a 9.S  mm sieve, quantitatively transfer
the solid material into the extractor bottle
along with the filter used to separate the
initial liquid from the solid phase, and
proceed to Step 8.11.
  8.10 Prepare the solid portion of the waste
for extraction by. crushing,, cutting, or grinding
the waste to a surface area or particle-size as
described in Step 7.3. When the surface area
or particle-size has been appropriately
altered, quantitatively transfer the solid
material into an extractor bottle. Include the
filter used to separate the initial liquid from
the solid phase.
  Note: Sieving of the waste is not normally
required. Surface area requirements are
meant for filamentous (e.g., paper, cloth) and
similar waste materials. Actual measurement
of surface  area is not recommended. If
sieving is necessary, a Teflon-coated .sieve
should be used to avoid contamination of the
sample.                         '   .
  8.11  Determine the amount of extraction
fluid to add to the extractor vessel as follows:
                 Weight of extraction fluid
    20 x percent solids (Step 7.1) x weight of waste filtered (Step B.5 or 8.7)

                                   100
  Slowly add this amount of appropriate
extraction fluid (see Step 7.4) to the extractor
vessel. Close the extractor bottle tightly (it is
recommended that Teflon tape be used to
ensure a tight seal), secure in rotary agitation
device, and rotate at 30+2 rpm for 18+2
hours. Ambient temperature (i.e., temperature
of room in which extraction takes place) shall
be maintained at 22+3 *C during the   •
extraction period.
  Note: As agitation continues, pressure may
 build up within the extractor bottle for some
 types of wastes (e.g., limed or calcium
 carbonate containing-waste may evolve
 gases such as carbon dioxide). To relieve
 excess pressure, the extractor bottle may be
.periodically opened (e.g., after 15 minutes, 30
 minutes, and 1 hour) and vented into a hood.
  8.12  Following the 18+2 hour extraction,
 separate the material in the extractor vessel
 into its component liquid and solid phases by
filtering through a new glass fiber filter, as
outlined in Step 8.7. For final filtration of the
TCLP extract the glass fiber filter may be
changed, if necessary, to facilitate filtration.
Filterfs) shall be acid-washed (see Step 4.4) if
evaluating the mobility of metals.
  8.13 Prepare the TCLP extract as follows:
  aiS.l  If the waste contained no  initial
liquid phase, the filtered liquid material
obtained from Step 8.12 is defined as the .
TCLP extract Proceed to Step 8.14.
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             Federal Register /  Vol.  55,  No. 61  / Thursday,  March 29, 1990  / Rules  and Regulations      11873
  8.13.2  If compatible (e.g., multiple- phases
will not result on combination), combine the
filtered liquid resulting from Step 8.12 with
the initial liquid phase of the waste obtained
in Step 8.7. This combined liquid is defined as
the TCLP extract. Proceed to Step 8.14.
  8.13.3  If the initial liquid phase of the
waste, as obtained from Step 8.7. is not or
may not be compatible with the filtered liquid
resulting from Step 8.12, do not combine these
liquids. Analyze these liquids, collectively
defined as the TCLP extract and combine the
results mathematically, as described in Step
8.14.
  8.14 Following collection of the TCLP
extract, the pH of the extract should be
recorded. Immediately-aliquot and preserve
the extract for analysis. Metals aliquots must
be acidified with nitric  acid to pH<2. if
precipitation is observed upon addition of
nitric acid to a small aliquot of the extract.
then the remaining portion of the extract for
metals analyses shall not be acidified and the
extract shall be analyzed as soon as possible.
All other aliquots must  be stored under
refrigeration (4 *C) until analyzed. The TCLP
extract shall be prepared and  analyzed
according to appropriate analytical methods.
TCLP extracts to be analyzed  for metals shall
be acid digested except in those instances
where digestion causes loss of metallic
contaminants. If an analysis of the
undigested extract shows that the
concentration of any regulated metallic
contaminant exceeds the regulatory level,
then the waste is hazardous and digestion of
the extract is not necessary. However, data
on undigested extracts alone cannot be used
to demonstrate that the waste is not
hazardous. If the individual phases are to be
analyzed separately, determine the volume of
the individual phases (to +0.5 percent),
conduct the appropriate analyses, and
combine the results mathematically by using
a simple volume-weighted average:
                                         Final analyte concentration
                                                                             V,+V,
where:
V, =The volume of the first phase (L).
Ct =The concentration of the contaminant of
    concern in the first phase (mg/L).
V»=The volume of the second phase (L).
Cj=The concentration of the contaminant of
   • concern in the second phase (mg/L).
  8.15  Compare the contaminant
concentrations in the TCLP extract with the
thresholds identified in the appropriate
regulations. Refer to { 10.0 for quality
assurance requirements.

9.0 Procedure  When Volatilea Are Involved
  Use the ZHE device to obtain TCLP extract
for analysis of volatile compounds only.
Extract resulting from the use of the ZHE
shall not be used to evaluate the mobility of
nonvolatile analytes (e.g., metals, pesticides,
etc.).
  The ZHE device has approximately a 500-
mL internal capacity. The ZHE can thus
accommodate a maximum of 25 grams of
solid (defined as that fraction of a sample
from which no additional liquid may be
forced out by an applied pressure of 50 psi),
due to the need  to add an amount of
extraction fluid  equal to 20 times the weight
of the solid phase.
  Charge the ZHE with sample only once and
do not open the device until the final extract
(of the solid) has been collected. Repeated
filling of the ZHE to obtain 25 grams of solid
is not permitted.
  Do not allow the waste, the initial liquid
phase, or the extract to  be exposed to the
atmosphere for any more time than is
absolutely necessary. Any manipulation of
these materials should be done when cold (4
°C) to minimize loss of volatiles.
  9.1 Pre-weigh the (evacuated) filtrate
collection container (See Step 4.6) and set
aside. If using a TEDLAR" bag, express all
liquid from the ZHE device into the bag.
whether for the initial or final liquid/solid
separation, and take an aliquot from the
liquid in the bag for analysis. The containers
listed in Step 4.8 are recommended for use
under the conditions stated in 4.6.1-4.6.3.
  9.2 Place the ZHE piston within the body
of the ZHE (it may be helpful first to moisten
the piston O-rings slightly with extraction
fluid). Adjust the piston within the ZHE body
to a height that will minimize the distance the
piston will have to move once the ZHE is
charged with sample (based upon sample size
requirements determined from Section 9.0,
Step 7.1 and/or 7.2). Secure the gas inlet/
outlet flange (bottom flange) onto the ZHE
body in accordance with the manufacturer's
instructions. Secure the glass fiber filter
between the support screens and set aside.
Set liquid inlet/outlet flange (top flange)
aside.
  9.3  If the waste is 100 percent solid (see
Step 7.1), weigh out a subsample (25 gram
maximum) of the waste, record weight, and
proceed to Step 9.5.
  9.4  If the waste contains <0.5 percent dry
solids (Step 7.2), the liquid portion of waste,
after filtration, is defined as the TCLP
extract. Filter enough of the sample so that
the amount of filtered liquid will support all
of the volatile analyses required. For wastes
containing >0.5 percent dry solids (Steps 7.1
and/or 7.2), use the percent solids
information obtained in Step 7.1 to determine
the optimum sample size to charge into the
ZHE. The recommended sample size is as
follows:
  9.4.1  For wastes containing <0.5 percent
solids (see Step 7.1), weigh out a 500-gram
subsample of waste and record the weight.
  9.4.2  For wastes containing >0.5 percent
solids (see Step 7.1). determine the amount of
waste to charge into the ZHE as follows:
                                  Weight of waste to change ZHE
                                                                                25
                                                                      Percent solids (Step 7.1)
                                                  X100
  Weigh out a subsample of the waste of the
appropriate size and record the weight.
  9.5  If particle-size reduction of the solid
portion of the waste was required in Step 7.3,
proceed to Step 9.6. If particle-size reduction
was not required in Step 7.3, proceed to Step
9.7.
  9.6  Prepare the waste for extraction by
crushing, cutting, or grinding the solid portion
of the waste to a surface area or particle-size
as described in Step 7.3.1. Wastes and
appropriate reduction equipment should be
refrigerated, if possible, to 4 *C prior to
particle-size reduction. The means used to
effect particle-size reduction must not
generate heat in and of itself. If reduction of
the solid phase of the waste is necessary,
exposure of the waste to the atmosphere
should be avoided to the extent possible.
  Note: Sieving of the  waste is not
recommended due to the possibility that
volatiles may be lost. The use of an
appropriately graduated ruler is
recommended as an acceptable alternative.
Surface area requirements are meant for
filamentous (e.g., paper, cloth) and similar
waste materials. Actual measurement of
surface area is not recommended.
  When the surface area or particle-size has
been appropriately altered, proceed to Step
9.7.
  9.7   Waste slurries need not be allowed to
stand to permit the solid phase to settle. Do
not centrifuge wastes prior to filtration.
  9.8   Quantitatively transfer the entire
sample (liquid and solid phases) quickly to
the ZHE. Secure the filter and support
screens onto the top flange of the device and
secure the top flange to the ZHE body in
accordance with the manufacturer's
instructions. Tighten all ZHE fittings and
place the device in the vertical position (gas
-------
11874      Federal Register  / Vol. 55. No. 61 / Thursday. March  29. 1990 /  Rules and  Regulations
inlet/outlet flange on the bottom). Do not
attach the extract collection device to the top
plate.
  Note: If waste material (>1% of original
sample weigh!) has obviously adhered to the
container used to transfer the sample to the
ZHE. determine the weight of this residue
and subtract it from the sample weight
determined in Step 9.4 to determine the
weight of the waste sample that will be
filtered.
  Attach a gas line to the gas inlet/outlet
valve (bottom flange) and, with the liquid
inlet/outlet valve (top flange) open, begin
ttpplying gentle pressure of 1-10 psi (or more
if necessary) to force all heudspnce slowly
out of the ZHE device into a hood. At the first
appearance of liquid from the liquid inlet/
outlet valve, quickly close the valve and
discontinue pressure. If filtration of the waste
at 4 °C reduces the amount of expressed
liquid over what would be expressed at room
temperature, then allow the sample to warm
up to room temperature in the device before
filtering. If the waste fa 100 percent solid (see
Step 7.1). slowly increase the pressure to a.
maximum of SO psi to force most of the
headspace out of the device and proceed to
Step 9.12.
  9.9  Attach the evacuated pre-weighed
filtrate collection container to the liquid
inlet/outlet valve and open the valve. Begin
applying gentle pressure of 1-10 psi to force
the liquid phase of the sample into the filtrate
collection container. If no additional liquid
has passed through the filter In any 2-minute
interval, slowly increase the pressure in 10-
psi increments to a maximum of SO psi. After
each incremental increase of 10 psi. if no
additional liquid has passed through the filter
in any 2-minute interval, proceed to the next
10-psi increment. When liquid flow has
ceased such that continued pressure filtration
at 50 psi does not result In any additional
nitrate within a 2-minute period, stop the
filtration. Close the liquid inlet/outlet valve.
discontinue pressure to the piston, and
disconnect and weigh the filtrate collection
container.
  Note: Instantaneous application of high
pressure can degrade the glass fiber filter and
may cause premature plugging.
  9.10  The material in the ZHE is defined as
the solid phase of the waste and the filtrate is
defined as the liquid phase.
  Note: Some wastes, such as oily wastes.
and some paint wastes, will obviously
contain some material that appears to be a
liquid. Even after applying pressure filtration.
this material will not filter. If this is the case,
the material within the filtration device is
defined as a solid and is carried through the
TCLP extraction as a solid.
  If the original waste contained 
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             Federal Register  / Vol.  55. No. 61  / Thursday. March  29.  1990 / Rules and  Regulations
                                                                              11875
where:
Vi =The volume of the first phases (1).
Ci =The concentration of the contaminant of
    concern in the first phase (mg/1).
Vj=The volume of the second phase (1).
d=The concentration of the contaminant of
    concern in the second phase (mg/1).
  9.16   Compare the contaminant
concentrations in the TCLP extract with the
thresholds identified in the appropriate
regulations. Refer to section 10.0 for quality
assurance requirements.

10.0 Quality Assurance Requirements
  10.1   Maintain all data, including quality
assurance data, and keep it available for
reference or inspection.
  10.2   A minimum of one blank (extraction
fluid #1) for every 10 extractions that have
been conducted in an extraction vessel shall
be employed as a check to determine if any
memory effects from the extraction
equipment are occurring.
  10.3  A matrix spike shall be  performed for
each waste unless the result exceeds the
regulatory level and the data is being used
solely to demonstrate that the waste property
exceeds the regulatory level. If more than one
sample of the same waste is being tested, a
matrix spike needs to be performed for every
twenty samples and the average percent
recovery applied to the waste
characterization.
  10.3.1  Matrix spikes are to be added after
filtration of the TCLP extract and before
preservation. Matrix spikes should not be
added prior to TCLP extraction of the sample.
  10.3.2  Matrix spike levels should be made
at the appropriate regulatory threshold limits.
However, if the extract contaminant
concentration is less than one half the
threshold limit, the spike level may be one
half the contaminant concentration but not
less than the quantitation limit or a fifth of
the threshold limit
  10.3.3  The purpose of the matrix spike is
to monitor the adequacy of the analytical
methods used on the TCLP extract and to
determine whether matrix interferences exist
in analyte detection. If the matrix spike
recoveries are less than 50%, then the
analytical methods are not performing
adequately or use of the methods is
inadequate. Use of internal calibration
quantitation methods, modification of the
analytical methods, or use of alternate
analytical methods may be needed to
accurately measure the contaminant
concentration in the TCLP extract.
  10.3.4  Use of internal quantitation
methods is also required when the
contaminant concentration is within 20% of
the regulatory level. (See section 10.S
concerning the use of internal calibration
methods.)
  10.3.5  Matrix spike recoveries are
calculated by the following formula:


                       A-B
     Percent recovery =	X 100%
  where A=the concentration of the spiked
sample,
  B=the concentration of the unspiked
sample, and
  C=the spike level
  10.4  All quality control measures
described in the appropriate analytical
methods shall be followed.
  10.5  The use of internal calibration
quantitation methods shall be employed for a
contaminant if: (1) Recovery of the
contaminant from the TCLP extract is not at
least 50% and the concentration does not
exceed the regulatory level, and (2) The
concentration of the contaminant measured
in the extract is within 20% of the appropriate
regulatory level.
  10.5.1 The method of standard additions
shall be employed as the internal calibration

    SAMPLE MAXIMUM HOLDING TIMES

                  [Days]
quantitation method for each metallic
contaminant.
  10.5.1.1  The method of standard additions
requires preparing calibration standards in
the sample matrix rather than reagent water
or blank solution. It requires taking four
identical aliquots of the solution and adding
known amounts of standard to three of these
aliquots. The fourth aliquot is the unknown.
Preferably, the first addition should be
prepared so that the resulting concentration
is approximately 50% of the expected
concentration of the sample. The second and
third additions should be prepared so that the
concentrations are approximately  100% and
150% of. the expected concentration of the
sample. All four aliquots are maintained at
the same final volume by adding reagent
water or a blank solution, and may need
dilution adjustment to maintain the signals in
the linear range of the instrumental
technique. All four aliquots are analyzed.
  10.5.1.2  Prepare a plot, or subject data to
linear regression, of instrumental signals or
external-calibration-derived concentrations
as the dependent variable (y-axis) versus
concentrations of the additions of standard
as the independent variable (x-axis). Solve
for the intercept of the abscissa (the
independent variable, x-axis) which is the
concentration in the unknown.
  10.5.1.3  Alternately, subtract the
instrumental signal or external-calibration-
derived concentration of the unknown
(unspiked) sample from the instrumental
signals or external-calibration-derived
concentrations of the standard additions. Plot
or subject data to linear regression of the
corrected instrumental  signals or external-
calibration-derived concentrations as the
dependent variable versus the independent
variable. Derive concentrations for unknowns
using the internal calibration curve as if it
were an external calibration curve.
  10.6  Samples must undergo TCLP
extraction within the following time periods:



Vnlattlao
Sami.vnlfltilBg „..„, , .,-„...,„
Mercury 	 	 	 	
Motats, except mercury 	 _..«_. 	 ................ 	 ...... 	
From:
Raid collection
To:
TCLP extraction
14
7
28
180
From:
TCLP extraction
To:
Preparative extraction
NA
7
NA
NA
From:
Preparative extraction
Tp:
Determinative analysis
14
40
28
180

Total elapsed time

28
54
56
360
   NA «= Not applicable.
  If sample holding times are exceeded, the
values obtained will be considered minimal
concentrations. Exceeding the holding time is
not acceptable in establishing that a waste
does not exceed the regulatory level.
Exceeding the holding time will not
invalidate characterization if the waste
exceeds the regulatory level.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES

  7. The authority citation for part 264
continues to read as follows:
  Authority: 42 U.S.C. 6905. 6912, 6924, and
6925.

  8. Section 264.301 is amended by
revising paragraph (c)(l) to read as
follows:

§ 264.301  Design and operating
requirements.
-------
11876      Federal Register /  Vol.  55, No. 61 / Thursday. March 29,  1990 / Rules and  Regulations
  (e) • • *
  (1) The monofill contains only
hazardous wastes from foundry furnace
emission controls or metal casting
molding sand, and such wastes do not
contain constituents which would
render the wastes hazardous for reasons
other than the Toxicity Characteristic in
§ 261.24 of this chapter, with EPA
Hazardous Waste Numbers 0004
through D017; and
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT STORAGE, AND
DISPOSAL FACILITIES

  9. The authority citation of part 265
continues to read as follows:
  Authority: 42 U.S.C. 6905,6912(a), 6924,
6925. and 6935.

  10. Section 265.221 is amended by
revising paragraph (d)(l) to read as
follows:

§ 265.221  Design requirements.
«    •    *    *    *

  (d) * '  •
            (1) The monofill contains only
          hazardous wastes from foundry furnace
          emission controls or metal casting
          molding sand, and such wastes do not
          contain constituents which would
          render the wastes hazardous for reasons
          other than the Toxicity Characteristic in
          § 261.24 of this chapter, with EPA
          Hazardous Waste Numbers D004
          through D017; and
          *****
            11. Section 265.273 is amended by
          revising paragraph (a) to read as
          follows:

          §265.273 Waste analysis.
          *****
            (a) Determine the concentrations in
          the waste of any substances which
          equal or exceed the maximum
          concentrations contained in Table 1 of
          § 261.24 of this chapter that cause a
          waste to exhibit the Toxicity
          Characteristic;
          PART 268—LAND DISPOSAL
          RESTRICTIONS

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

                      13. Appendix I of part 268 is revised to
                    read as follows:

                    Appendix I—Toxicity Characteristic
                    Leaching Procedure (TCLP)
                      Note: The TCLP is published in Appendix II
                    of part 261.

                    PART 271—REQUIREMENTS FOR
                    AUTHORIZATION OF STATE
                    HAZARDOUS WASTE PROGRAMS

                      14. The authority citation for parr*2?l
                    continues to read as follows:
                      Authority: 42 U.S.C. 6905.6912(a), and 6926.

                      15. Section 271.1, paragraph (j), the
                    heading of Table 1 is republished, and
                    Table 1 is amended by adding the
                    following entry in chronological order
                    by date of promulgation to read as
                    follows:

                    S 271.1  Purpose and scope.
                    •    *    *     *    *

                      (j) * *  *
              TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
                                     Tftte of regulation
                                  Fodofsl Rogistor refGronco
                                                                                                 Effective date
March 29,1990	
Toxlcfty characteristic...
[Insert FR reference on date of pubtt-  September 25,1990
 cation].
PART 302—DESIGNATION,
REPORTABLE QUANTITIES, AND
NOTIFICATION

  16. The authority citation for part 302
continues to read as follows:
            Authority: 42 U.S.C. 9802; 33 U.S.C. 1321
          and 1361.

            17. Section 302.4 is amended by
          revising under the column Hazardous
          Substance the entry "Unlisted
          Hazardous Wastes Characteristic of EP
          Toxicity" to read "Unlisted Hazardous
                    Wastes Characteristics:" and by
                    revising the entry "Characteristic of EP
                    Toxicity" and its sub entries to read as
                    follows:

                    5 302.4 Designation of hazardous
                    substances.
                      TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
       H&zflfdous subst&nco
                               CASRN
                                              Regulatory synonyms
                                                                       RO
                                                                              Statutory
                                                                                                      Final RO
                                                                              Codet
                                                          RCRA
                                                          waste
                                                          number
                                      Category   Pounds (Kg)
Characteristic of Toxicity:
  Arsenic (0004)	
  Barium (OOOS)	
  Benzene (D018)	
  Cadmium (0006)...
  Carbon tetrachtoride (0019).
  Chlordane (0020)	
  Chlorobenzene (D021)	
  Chloroform (0022)	
  Chromium (0007)		
  c-Cresol (D023)	
  m-CrescH (0024)	
NA
NX
NA
NA
NA
NA
NA
NA
NA
NA
NA
               •1
               •1
              1000
               •1
             5.000
                1
               100
             5,000
               •1
             1,000
             1.000
     4  0004
     4  0005
1, 2. 3. 4  0018
     4  0006
  1.2.4  0019
  1. 2, 4  0020
  1. 2, 4  0021
  1, 2, 4  0022
     4  0007
   1.4  0023
   1,4  D024
X
C
A
A
A
X
B
A
A
C
C
  1 (0.454)
1.000 (454)
  10 (4.54)
  10 (4.54)
  10 (4.54)
  1 (0.454)
 100 (45.4)
  10 (4.54)
  10 (4.S4)
1.000 (454)
1,000 (454)
-------
             Federal Register  / Vol. 55,  No. 61  / Thursday. March 29. 1990 / Rules and Regulations      11877


                   TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES—Continued
Hazardous substance
p-Cresol (D025)
Cresoi (D026)
2.4-0(0016) 	 	 	
1.4-Dfchlorobenzene (D027) 	
1,2-Oichloroethane (0028) 	
1,1-Dichloroethytene (D029) 	
2.4-Dinitrotoluene (D030) 	
Endrin (D01 2) 	
Heptachlor (and hydroxide) (D031) 	
Hexachtorobenzene (D032) 	
Hexachlorobutadiene (D033) 	
Hexachloroethane (0034) . „ 	
Lead (0008) 	 	
Lindane (0013) __ 	 	
Mercury (0009)
Methoxychlor (D014) 	 	
Methyl ethyl ketone (D035) 	
Nitrobenzene (0036) 	 „ 	 „. „
Pentachlorophenol (0037) 	 	
Pyridine (0038) 	 _ 	
Selenium (D01 0) 	 	
Silver (0011)..
Tetrachloroetnylene (0039) 	
Toxaphene (0015) 	 	
2.4.5-Trichloroethylene (D041) 	
2.4,6-Trichlorophenol (D042) 	
2,4,5-TP (D01 7) 	
Vinyl chloride (0043) 	
• * •

CASRN ' Regulatory synonyms
NA. . 	
N A. 	
NA 	 _ 	 	 	 	
NA. 	 	 	 _ 	
NA 	 	 	 	
N.A. 	 	 	 	
NA 	 	 _ 	
NA 	 _ 	
NA 	
NA 	 	 ~ 	 	
NA 	 	
NA. 	 	 _ 	 - 	 _.
N A
NA . 	 ~ 	
NA 	 	 - 	
NA 	 	 	 ~ 	 _ 	 _ 	
NA
NA . .._ 	 _ 	
NA 	
NA 	 	 	 	
NA ... ... 	 	
NA. 	
NA 	
NA 	 . 	 	 	
NA .. 	 	
NA .. _ 	 	 	
• • •

RO
1.000
1,000
100
10»
5.000
5.000
1,000
1
1
•1
•1
•1
•1
1
•1
1
•1
1,000
10
•1
•1
•1
•1
1
1000
10
10
100
•1
Statutory
Codet
1.4
1,4
1.4
1,2.4
1.2,4
1.2.4
1.2.4
1,4
1,2,4
2,4
2.4
2,4
4
1.4
4
1.4
4
1.2,4
1,2,4
4
4
4
2.4
1.4
1.2,4
1.4
1,2.4
1.4
2.3,4
•
Final RO
RCRA
waste
number
0025
0026
0016
0027
0028
0029
D030
0012
0031
0032
0033
0034
0008
0013
0009
0014
0035 .
0036
0037
0038
0010
0011
0039
0015
0040
0041
D042
D017
0043
*
Category
C
C
B
B
B
B
A
X
X
A
X
B
X
X
X
D
C
A
C
A
X
B
X
B
A
A
B
X
Pounds (Kg)
1,000 (454)
1,000 (454)
100 (45.4)
100 (45.4)
- 100 (45.4)
100 (45.4)
10 (4.54)
1 (0.454)
1 (0.454)
10 (4.54)
1 (0.454)
100 (45.4)
(#)
1 (0.454)
1 (0.454)
1 (0.454)
5.000 (2270)
1.000 (454)
10 (4.54)
1.000 (454)
10 (4.54)
1 (0.454)
100 (45.4)
1 (0.454)
100 (45.4)
10 (4.54)
10 (4.54)
100 (45.4)
1 (0.454)
*
    (—indicates the statutory source as defined by 1, 2. 3. or 4 below.
   •'—indicates that the 1-pound RO is a CERCLA statutory RQ.
   If—indicates that the RQ is subject to change when the assessment of potential carcinogenJcity is completed.
[FR Doc. 90-6104 Filed 3-28-90; 8:45 am)

BHJJNO CODE 65CO-60-M
-------
Appendix E
-------
      APPENDIX E

KEY CONTACTS FOR MORE
INFORMATION ON THE TC
-------
Appendix E
KEY CONTACTS FOR MORE INFORMATION ON THE TC
                                          E-1
                    Key Contacts for Regional and State
                Personnel for Toxicity Characteristic Information
Topic Area
General TC Questions
Permitting
Enforcement
Pollution Prevention
Toxicity Characteristic
Contact
Steve Cochran
Evelyn Washington
Dave Topping
Frank McAllister
Wayne Roepe
Hugh Davis
Daryl Moore
Gail Hansen
Phone
FTS/202-382-4769
FTS/202-382-7738
FTS/202-382-7737
FTS/202-382-2223
FTS/202-475-7245
FTS/202-475-9865
FTS/202-475-6721
FTS/202-475-6722
Leaching Procedure Test

Method 1311 (TCLP)
QA/QC

RCRA Docket

RCRA Hotline
Jean Hankins
FTS/202-382-4778
                        FTS/202-475-9327
                        800-424-9346
-------
Appendix F
-------
      APPENDIX F

TOXICITY CHARACTERISTIC
   OUTREACH MATERIAL
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                   OUTREACH MATERIAL DESCRIPTIONS
Element
Description/Audience
(1)   "Large Quantity
      Generator" (LQG)
      Brochure
(2)  Small Quantity Generator
     (SQG) Brochure
(3)  Industry-specific
     Sheets (18)
(4)  Waste Minimization
     Booklet
(5)  Permit Modification
     Brochure
(6)  Used Oil Brochures
(7)  FRN Reprint
Describes TC impacts specific to
"Large Quantity Generators",  and
how LQGs can comply with the new
regulation. Includes example of
waste minimization techniques.
(Targets LQGs)

Includes basic information about
RCRA, HW manifests, and EPA
Regional and state contacts.
Includes example of waste
minimization techniques. (Targets
SQGs; especially appropriate for
newly regulated generators)

Each sheet includes information
about the waste stream that is
generated by specific industries,
and outlines the management
practices called for. (Targets LQGs
and SQGs)

Defines.waste minimization,
emphasizes its importance to
successful waste management,  and
highlights several case studies.
(Appropriate for all industry)

Outlines the new RCRA
permit modification requirements
for Class 1, 2, and 3
modifications. (Targets permitted
facilities)

A series of brochures emphasizing
the importance of used oil
recycling. (Appropriate for
facilities that use oil in
industrial processes or services)

Copy of the Notice which appeared
in the Federal Register; includes
preamble and rule. (Appropriate for
all affected industries)
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Appendix G
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           APPENDIX G




TOXICITY CHARACTERISTIC FACT SHEET
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                      Un ited States                Office of Solid Waste
                      Environmental Protection         and Emergency Response      EPA/530-SW-89-045
                      Agency                    Washington DC 20460        March 1990

                      Office of Solid Waste
&EPA         Environmental
                      Fact Sheet
                       TOXICITY CHARACTERISTIC
                       RULE FINALIZED
                The final Toxicity Characteristic rule adds 25 organic chemicals to the eight
              metals and six pesticides on the existing list of constituents regulated under
              RCRA.  The rule also establishes regulatory levels for the new organic
              chemicals listed, and replaces the Extraction Procedure leach test with the
              Toxicity Characteristic Leaching Procedure. Generators must comply with this
              regulation within six months of the date of notice in the Federal Register; small
              quantity generators must comply within one year.
         BACKGROUND
         On June 13, 1986, the Environmental Protection Agency (EPA)
         proposed to revise the existing toxicity characteristic, one of four
         characteristics used by the Agency to identify hazardous waste to be
         regulated under Subtitle C of the Resource Conservation and Recovery-
         Act (RCRA). The proposed rule was designed to refine and broaden the
         scope of the RCRA hazardous waste regulatory program, and to fulfill
         specific statutory mandates under the Hazardous and Solid Waste
         Amendments of 1984.

         Under current regulations, EPA uses two procedures to define wastes
         as hazardous:  listing and hazardous characteristics. The listing
         procedure involves identifying industries or processes that produce
         wastes that pose hazards to human health and the environment. The
         second procedure involves identifying properties or "characteristics"
         that, if exhibited by any waste, indicate a potential hazard if the waste
         is not properly controlled. Toxicity is one of four characteristics that
         must be considered when identifying a waste as hazardous. The others
         are ignitability,  reactivity,  and corrosivity.

         The proposed version of the new rule added 38 new substances to the
         Toxicity Characteristic list; 13 of these constituents are not included in
         the final version due to technical difficulties in establishing appropriate
         regulatory levels. EPA bases all regulatory levels for hazardous
         chemicals on health-based concentration thresholds and a dilution/
         attenuation factor specific  to each chemical. A concentration threshold
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                                  -2-

indicates how much of the chemical adversely affects human health,
while the dilution/attenuation factor indicates how easily the chemical
could seep (or "leach") into ground water. The levels set in the Toxicity
Characteristic (TC) rule were determined by multiplying the health-based
number by a dilution/attenuation factor of 100.

The introduction of the TC rule in 1986 generated extensive public com-
ment on a variety of issues. The TC involves a new "modeling" approach,
a mathematical computer model, to simulate what happens to hazardous
waste in a landfill. Results from the Toxicity Characteristic Leaching Pro-
cedure fTCLP), a new test that is part of the TC rule, are more reproduc-
ible than results from the old Extraction Procedure (EP) leach test, and
the new test is easier to run.

Following the 1986 proposal, EPA published several supplemental no-
tices in an effort to evaluate and incorporate public comments before fi-
nalizing the rule.
ACTION
EPA is finalizing the regulatory levels for 25 of the 38 constituents of
concern that were identified in the proposed Toxicity Characteristic rule.
Regulatory levels for the remaining 13 constituents will be proposed at a
later date.

A waste may be a 'TC waste" if any of the chemicals listed below are
present in waste sample extract or leachate resulting from application of
the TCLP to that waste. If chemicals are present at or above the specified
regulatory levels, the waste is a 'TC waste," and is subject to all RCRA
hazardous waste requirements. Regulatory levels established under the
EP toxicity characteristic remain the same, but require application of the
new test.

Waste generators who have already notified the Agency that they gener-
ate other hazardous wastes and who have obtained an EPA identification
number for their facility are not required by this rule to notify EPA that
they now generate a "TC waste." Facilities that are permitted to treat,
store, or dispose of hazardous waste, however, may require new or modi-
fied permits to handle 'TC waste," and should contact their EPA Regional
office for more information.

Implementation of the TC rule will initially be the responsibility of EPA's
Regional offices.  State hazardous waste programs must modify their
regulations to reflect the requirements of the TC rule before they can be
authorized for implementation.
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                                    -3-
TheJoU0urin9 constituents are now regulated, under the Toxlctb/ Characteristic rule. Waste
generators must determine the levels present in their waste sample extractor leachate,
based ettfter on#«ir fcrtourfeefere of their processes or by application of the TCtP.
New Constituents/Regulatory levels
Benzene... 0.50 mg/1
Carbon tetrachloride.,. 0.50 mg/1
CMordane.., 0*03 mg/i
Chlorobenzene... 100.0 mg/1
Chloroform.. ,0,0 nig/1
in-Cresol... 200.0 tng/1*
o^Cresoi.,, 200,0 mg/1
p-Cresol i.". 200.0 mg/1  „
1,4-Dichlorobenzene.,. 7.5 mg/1
1,2'Dichloroethane,., 0.50 mg/1
1,1-Dichloroethylene.,. O.70 mg/1
2,4-Dlnitrotoluene,. .o,l3nig/l»*
Heptachlor (and
 ^ Its lordroxide}. r * 0.008 mg/J
Hexachloro-1.3-l)utadiene,.«0.5 ttig/1
Hexachlorobenzene... ,0,13mg/1**
Hexachloroethane, .^3,0 mg/1
Methyl ethyl ketone;», 200.0 mg/1   \
Nitrobenzene. 1.2.6 mg/1      .
Pentachlorophenal.., 100.0 ing/1***
J^iidine... S.O rag/1**
TetracWotoethylene,., 0,7 mg/1
Trtchloroethylene... 0.5 mg/I
2,4,5-Trlcblorophenol *.. 400.0 mg/1
2,4.6-TrichIorophenol... 2.0 mg/1
Vinyl chloride,.. 0,20 mg/1    :
 Old EP Constituents/Regulatory levels
 Arsenic... 5.0 mg/l
 Barium.,. 100.0 mg/1
 Cadmium.,, 1,0mg/I
 Chromium.., ,5.0 mg /I
 Lead, ..5,0*ng/l
: Mercury... 0.2 mg/1
 Selenium.,. UO mg/1
 Silver..»6.0 mg/1
 Endrtn... 0.02 mg/1
 Lindane. *. 0.4 mg/1
 Mdhoacychlor... 10.Omg/l
 Toxaphene,.. 0.5 mg/1
 2.4-Dlchlorophenoxycetic acid.. 10.0 mg/1
 2.4.5-TrichlorophenoxyproplorUc
            .. 1.0mg/1
Many Underground Storage Tank (UST) sites are regulated under Sub-
title I of RCRA. The Toxicity Characteristic rule will not apply to UST pe-
troleum-contaminated media and debris regulated under Subtitle I until
the Agency completes a number of studies of the impacts of the TC on
these wastes.  During the study period, UST sites will continue to be
regulated under Subtitle I of RCRA.

Listed wastes, unlike characteristic wastes such as  a 'TC waste," can be
removed from EPA's lists of hazardous wastes through a process called

*  If o-.m-. and p-Cresol concentrations cannot be differentiated, the total cresol concentration
   is used. The regulatory level for total cresol is 200.0 mg/1.
** Quantltatlon limit is greater than the calculated regulatory level. The quantltatlon limit,
   therefore, becomes the regulatory level.
*** The Agency will propose a new regulatory level for this constituent, based on the latest
   toxlcity information.
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                                -4-
deltsting. Delisting determinations are made on a case-by-case, site-
specific basis. Although it is not discussed in the preamble to the TC
rule, the guidance for submitting delisting petitions will be modified in
the near future to reflect the replacement of the EP leach test with the
Toxicity Characteristic Leaching Procedure. Notification of the effective
date for this change will appear in a future Federal Register notice.

CONCLUSION
Based on consideration of 12 affected industries, EPA estimates that the
Toxicity Characteristic rule  will bring a significant volume of additional
wastewaters, solid waste, and sludge under the control of its hazardous
waste regulations. The rule  will bring a large number of waste generators
under Subtitle C regulation for the first time, and many treatment,  stor-
age, and disposal facilities will require new or modified permits to handle
'TC waste."

The Agency strongly encourages industry to reduce the generation of all
hazardous wastes through pollution prevention and waste minimization
practices. For information and publications on pollution prevention op-
tions, contact the toll-free RCRA Hotline number listed below.

TC Impact on Used Oil Regulation
Used oil that is disposed of, rather than recycled or burned for energy
recovery, is regulated as a hazardous waste under  Subtitle C if it exhibits
any of the four characteristics described above. The Toxicity Character-
istic rule adds a number of  substances to the toxicity list that may  bring
previously "nonhazardous" used oil under Subtitle C regulation.

Currently, hazardous used oil that is  recycled by being burned for energy
recovery is minimally regulated under RCRA (a variety of administrative
requirements must be met). Used oil that is recycled in any other way is
currently exempt from Subtitle C regulation.  These regulations for  re-
cycled oil are not affected by the Toxicity Characteristic rule. The Agency
is currently determining how best to regulate used oil, and is working to
develop standards to ensure proper management of used oil that may
pose a threat to human health or the environment.

CONTACT
EPA is distributing information materials to trade associations represent-
ing those industries potentially affected by the Toxicity Characteristic
rule.  These materials describe constituents of concern specific to each
affected industry, and include compliance guidelines for newly regulated
generators. To order copies of these materials, a copy of the Federal Reg-
ister notice, or for further information,  contact the RCRA Hotline Mon-
day through Friday, 8:30 a.m. to 7:30 p.m. EST. The national toll-free
number is (800) 424-9346;  for the hearing impaired, the number is TDD
(800) 553-7672. In Washington, D.C., the number is (202) 382-3000 or
TDD (202) 475-9652.
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