MPBriupb
SW-813
ENVIROMEN.TAL PROTECTION AGENCY
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PUBLIC HEARING:
PROPOSED AMENDMENT TO
LIST OF HAZARDOUS WASTE
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HEW Auditorium
330 Independence Avenue, S.W.
Washington, D.C.
9:05 a.m.
October 9, 1979
PRESIDING:
LISA FRIEDMAN, Chairperson
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1 PANEL MEMBERS:
2 MS. LISA FRIEDMAN, Chairperson
Attorney, Office of the General Counsel, EPA
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MR. JOHN P. LEHMAN
Director, Hazardous & Industrial Waste Division
Office of Solid Waste, EPA
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MR. ALAN S. CORSON
Chief, Waste Characterization Branch
Hazardous & Industrial Waste Division
Office of Solid Waste, EPA
8 MR. MATT STRAUS
Manager, Hazardous Waste Definition Program
Waste Characterization Branch
Hazardous & Industrial Waste Division
Office of Solid Waste, EPA
11 DR. DONN VIVIANI
Environmental Scientist
Hazardous & Industrial Waste Division
Office of Solid Waste, EPA
MR. MICHAEL PELENSKY
Hazardous Mate:
EPA Region III
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Hazardous Materials Branch
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MAKING PRESENTATIONS
MR. KEVIN GAYNOR, Esq.
Nixon, Hargrave, Devans & Doyle
Washington, D.C.
DR. STACY L. DANIELS
Research Specialist
Dow Chemical Company
Environmental Science Research 1702 Building
Midland, MI 48640
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MR. LEHMAN: Good morning. My name is John Lenman,
and I am the Director of the Hazardous and Industrial Waste
Division of EPA, Office of Solid Waste, in Washington.
On behalf of EPA, I would like to welcome you here
to this public hearing. For a brief overview of why we are
here, the EPA on August 22, 1979, issued a supplemental pro-
posed rule under section 3001 of the Solid Waste Disposal
Act as substantially amended by the Resource Conservation and
Recovery Act, Public Law 94-580.
This supplemental proposal covers an additional
listing of approximately 45 hazardous wastes to be added to
the proposed list of hazardous wastes which the Agency pub-
lished on December 18, 1978. This rule also proposes to list
those chemical which are included in the International Agency
for Research on Cancer list of human carcinogens and potential
human carcinogens but which are not already listed as a
hazardous waste proposed regulations published on December 18,
1978, in appendices 3, 4 and 5 of section 3001 regulations if
such materials are disposed of as pure-materials, spilled.
clean-up residues of specification materials or container
residues.
This proposal together with those already pub-
lished pursuant to sections 3001, 3002 and 3004 on December 18,
1973; section 3003 on April 28, 1978; section 3008 on August 4,
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l 1978; section 3010 on July 11, 1978; and sections 3005 and
2 3006 on June 14, 1979; and that of the Department of Transpor-
3 tation pursuant to the Hazardous Materials Transportation Act
4 proposed on May 25, 1978; constitute the hazardous waste
5 regulatory program under Subtitle C of the Act.
6 This program will provide a system for the manage-
7 Kient of the nation's hazardous waste from point of generation
8 to final disposal. The court order promulgation date for
9 final regulations is December 31, 1979.
10 This hearing is being held as part of our public
u participation process in the development of tnis regulatory
]9 program. We appreciate you taking the time to participate in
13 the development of these hazardous waste regulations.
14 I would like to introduce the panel members who
share the rostrum with rae. From your left to right, they are
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16 Mike Pelensky, chemical engineer, Hazardous Materials Branch
17 of EPA's Region III in Philadelphia; Donn Viviani, Environmen-
JQ tal Scientist in Waste Characterization Branch of the
19 Hazardous and Industrial Waste Division, EPA in Washington;
.,0 Alan Corson, Chief of the Waste Characterization Branch in
91 the Hazardous and Industrial Waste Division in EPA, Washington
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09 Lisa Friedman from our Office of General Counsel, who will ae
93 the chairperson of the hearing; and on my left. Matt Strous ,
,4 Program Manager of the Hazardous Waste Definition Program in
the Waste Characterization Branch, Hazardous and Industrial
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Waste Division, EPA, Washington.
Ms. Claire Welty who is listed as a panel member
3 will not be with us this morning.
4 The comment period for this proposal closes on
October 12, 1979. The comments received at this hearing
6 together with the comment letters we receive will be a part
7 of the official docket in tnis rule..making process. This
docket may be seen during normal working hours in room 2439K
9 in Waterside Mall, 401 M Street, S.W., in Washington, D.C.
10 In addition, we expect to have a transcript of
n this hearing within about two weeks of the close of the hear-
19 ing. The transcript will be available for reading at any of
13 the EPA libraries. A list of these locations is available
at the registration table.
With this as background, I would like to lay the
groundwork and rules for the conduct of this hearing. The
focus of a public hearing is on the public's response to a
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regulatory proposal of an agency. The purpose of this hearing
19 as announced in the August 22 Federal Register is to solicit
.„ comments on the proposed regulations, including any back-
.,. ground information used to develop the comment.
9? So this public hearing is being held not primarily
to inform the public nor to defend a proposed regulation but
rather to obtain the public's response to this proposed regula
tion and thereafter revise it as may seem appropriate. All
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major substantive comments made at the hearing will be
addressed during the preparation of the final regulations.
3 This is not a formal adjudicatory hearing with the
4 right to cross-examination. The members of the public are to
present their views on the proposed regulation to the panel,
6 and the panel may ask questions of the people presenting state
7 ments to clarify any ainbiguities in their presentation. Some
8 questions by the panel may be forwarded in writing to the
g speakers. His or her response if received within a week of
10 the close of this hearing will be included in this transcript.
Otherwise, we will include it in the docket.
12 The chairperson reserves the right to limit
13 lengthy questions, discussions or statements. If you have a
14 copy of your statement, please submit it to the court reporter.
., Written statements will be accepted at the end of the hearing,
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16 and if you wish to submit a written rather than an oral state-
17 ment, please make sure that the court reporter has a copy.
18 The written statements will also be included in
19 their entirety in the record. Persons wishing to make an oral
OQ statement who have not made an advance request by telephone or
91 in writing or by indicating their desire to do that on the
99 registration card this morning should return to the registra-
93 tion table, fill out another card, and give it to one of the
staff.
As we call upon an individual to make a statement,
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he or she should come up to the lectern and identify himself
or herself for the court reporter and deliver his or her state-
ment.
At the beginning of the statement, the chairperson
will inquire as to whether the speaker is willing to entertain
questions from the panel. The speaker is under no obligation
to do so, although within the spirit of this information shar-
ing hearing, it would be of great assistance to the Agency if
9 questions were permitted.
10 Our day's activities as we currently see them
appear like this: Only a few persons have indicated a desire
19 to make a statement. We may conclude this hearing this morn-
13 ing. If necessary, we will break for .lunch at about. 12 :00 and
14 reconvene at 2:00, and we will conclude the day's session at
15. about 5:00 o'clock or when all of the comments have been
16 received, statements have been received, whichever is earliest]
If you wish to be added to our mailing list for
18 future regulations, draft regulations or proposed regulations,
19 please leave your business card or name and address on a 3x5
card on the registration desk.
Today's discussion is limited to the listed wastes
appearing in the August 22 Federal Register notice. The
,,3 chairperson reserves the right to cut off discussion of any
,,4 other aspect of the proposed Hazardous Waste Regulations for
which hearings have been previously held.
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Now I would like to turn the hearing over to
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our chairperson, Lisa Friedman. Lisa?
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MS. FRIEDMAN: Thank you. I have one issue I want!
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to bring up today. During the comment period on the supple-
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mental proposal, we received a number of requests for extensioiji
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of the comment period on the ground that some of the reference
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material referenced documents of listed wastes were not avail-
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able.
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In response to these requests and because we
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recognize these materials were not available, we are extending
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the comment period on the following wastes: wastes from
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equipment cleaning and test cleaning in the manufacture of
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paperboard boxes, waste from press clean-up of newspaper
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printing, wash water from printing ink equipment cleaning and
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melted ore (?) of sand casting wastes from iron foundries.
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We hope to have list in the Federal Register later
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this week before we announce the extension.
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We have two people who have asked to speak today.
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The first will be Mr. Kevin Gaynor of Nixon, Hargrave, Devans
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and Doyle.
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PRESENTATION OF KEVIN GAYNOR, Esq.
NIXON, HARGRAVE, DEVANS & DOYLE:
MR. GAYNOR: I am an attorney with the law firm
of Nixon, Hargrave, Devans and Doyle of Rochester, New York;
Washington, D.C.; and Palm Beach, Florida. I am here today
to make a statement on behalf of a client engaged in the print
ing of books and periodicals.
While our firm will be filing more extensive
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comments with EPA by the filing deadline, we feel this matter
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is of such importance a public statement must also be made.
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The purpose of this statement is to protest EPA's
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proposal to designate- as hazardous all wash water from print-
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ing ink equipment cleaning. Promulgation of this designation
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is both legally in excess of the Agency's authority under
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RCRA and technically inaccurate.
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In its August 22, 1979, proposal, which is the
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subject of these hearings today, EPA announced its intention
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to include, quote, "(SIC) 2893: Wash water from printing
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ink equipment cleaning," on its list of hazardous waster.
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Although the SIC code listed for this item applies only to
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printing ink manufacturing industry, the description of the
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waste, which according to EPA's original proposal is the
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determinative factor, is sufficiently broad to apply to the
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printing and publishing industry as well.
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Specifically, we believe that this item should be
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struck from the list of processes generating hazardous waste
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since the principal substance covered by the description,
wash water, dose not fall within the definition of hazardous
waste under RCRA and is exlucded from regulation under this
Act.
Specifically, hazardous waste is defined as a sub-
set of solid waste. Expressly excluded from RCRA's definition
of solid wastes are, quote, "industrial discharges which are
point sources subject to permits under section 402 of the
Federal Water Pollution Control Act, as amended," end of
quote.
Thus, wash water discharged directly to a water
body is clearly exempted from regulation as a hazardous
waste under RCRA.
In addition, section 1006 of RCRA, which addresses
the applicability of RCRA vis-a-vis other laws, provides that
RCRA does not apply to any activity or substance which is
subject to the Clean Water Act except where RCRA requirements
would not be inconsistent with the Clean Water Act.
This section goes on to mandate that EPA integrate
its enforcement of RCRA and avoid duplication of regulatory
efforts. Clearly EPA's proposed designation of wash water
as a hazardous waste does just the opposite. Wash water which
is discharged indirectly to a water body from a sewage system
or a publicly owned treatment works is regulated under Clean
Water Act and in particular is subject to the pre treatment
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requirements o that Act.
For this reason indirect discharges of waste water
3 to a POTW's sewer system are not intended to be regulated unde
RCRA, Since wash water from printing ink equipment cleaning
can be subjected to pretreatment requirements if necessary,
there is no reason to separate out this category of water from
any other water for regulation under RCRA rather than under th
Clean Water Act.
9 Therefore, on the basis of statutory authority,
.„ it is inappropriate to define wash water as a hazardous waste
under Subtitle C of the Hazardous Waste Management Program
19 and to regulate it under RCRA. The statute simply does not
13 authorize direct RCRA regulation of the discharge of wash
water itself.
., In comments made by the. Agency in its preamble to
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16 the December 18, 1978, proposal, it was clearly recognized tha
the. Hazardous Waste Program does not apply to discharges of
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water. The proposal to list wash water is in direct contra-
ig diction to EPA's announced interpretation of the proper
90 regulatory interface between the Clean Water Act and RCRA.
.,. This preamble discussion explained that once a
99 hazardous waste enters a POTW, which by definition includes
.„ the conveyance sewer as well as the sewage treatment plant,
94 the resulting mixture is no longer considered a solid waste
95 under RCRA. This preamble comment goes on to note that in
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the absence of a surface impoundment, the proposed hazardous
waste regulations do not apply to water to be discharged by
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an NPDES permitted facility.
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In view of this clear position taken by the Agency,
wash water is simply not subject to control as a hazardous
waste under RCRA. Rather, regulation of wash water must be
achieved under the appropriate provisions of the Clean Water
Act pursuant to which there is full authority to control
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these dis charges.
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In addition to these legal, arguments, there are
practical considerations which support the regulation of
printing ink equipment cleaning wash water under the Clean
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Water Act rather than under RCRA. The first is the matter of
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volume. Wash water is by its very nature primarily water with
very dilute amounts of contaminants in it. A hazardous desig-
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nation under RCRA would force virtually every printing company,
hometown newspaper, et cetera, to dispose of its wash water
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at a licensed hazardous waste disposal facility.
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Even the proposed 100 kilogram per month exemption
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for small volume generators would not be of help to printers
and publishers because of the weight of water. Any printer or
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publisher who uses more than 27 gallons of water a month to
wash a printing press would be a hazardous waste generator.
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In the case of one of our clients, the weekly
cleaning of presses involves the use of approximately 50 gallonls
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of water per press. We ask the question: where will this
water be disposed of? Presently in New York State where our
3 client is located, there are only two licensed hazardous
4 waste disposal facilities, both of which are secure landfills.
These landfills because of potential leachate and
groundwater contamination problems will not accept such liquid
waste. Even if these facilities did accept such waste, EPA
must give serious consideration to whether the best use of
9 these waste disposal facilities which are in short demand
10 is for the large volume of printing equipment cleaning water
n produced by the printing and publishing industry.
12 If printing ink equipment cleaning water does in
13 fact contain hazardous material, it would seem more reasonable
14 and certainly more practical to remove and concentrate the
15 hazardous components. Such treatment can be clearly mandated
16 under the Clean Water Act through section 402 (for direct
discharges) and section 307 (for discharges to POTWs) .
18 If EPA by applying its various hazardous waste
19 critera then finds that the sludges from the waste water are
20 hazardous, it can identify these sludges in the solid form
as hazardous wastes.
Let us turn briefly now to the question of
.,3 whether all waste water from printing ink equipment can be
.>4 reasonably designated as hazardous. We are seriously con-
,,5 cerned that the hazardous components of this wash water
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identified in EPA's support document — namely, lead,
9 chromate, phenols and isophorone — occur in only a small
fraction of all printing ink used in this country. Many ink
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and ink equipment cleaning fluid vendors have provided
assurances to one of our clients that these four substances
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or classes of substances are not in most inks that are being
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used.
From discussions with the publishers trade associa-
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tion, Graphic Arts Council, it appears that only tne colored
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inks, mainly yellows and reds, may contain these chemicals.
Graphic Arts Council, nowever, pointed out that not all the
colored inks contain tnese materials since many ink manufac-
turers have, quote, "seen the handwrinting on the wall," end
quote, and have substituted non-hazardous components tor com-
ponents said to be hazardous.
Since many publishers rarely use colored inks but
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rely instead on black ink, this proposed classification is
entirely too broad. If finally promulgated as proposed, this
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designation will place an unreasonable burden and disposal
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cost on the publishing industry.
We feel that at present EPA's hazardous waste data
base is totally inadequate to support this designation. Many
printers and publishers do not have the facilities or the
money to test waste water, excuse me wash water, for the four
substances or worse yet, to apply RCRA's tests for toxic,
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toxic organic, mutagenic and bioaccumulative properties as
2 would be required if this proposal were adopted and a
3 variance from these regulations were sought.
4 Our client has demonstrated his concern by the
5 research it has done thus far and by our appearance here
6 today. I have been asked to call upon EPA now to do its part
7 and devote more time and energy to researching this hazardous
8 waste designation.
9 EPA has the expertise to develop and appropriate
10 data base and apparently has already begun in connection with
11 developing effluent standards. At the conclusion of this
12 research, EPA can make an informed decision as to which com-
13 ponents of which segment of the wash water waste stream for
14 the printing industry, if any, are hazardous.
15 Only then can EPA reasonably proceed to regulate
16 these materials. Naturally our client and hopefully other
17 members of the printing industry stand ready to assist EPA
18 in its efforts.
19 In conclusion, I would like to reemphasize that
20 addition of this waste category to the hazardous waste
21 regulations is objectionable both because it does not comport
22 with the mandates of RCRA and because it is so boradly stated
23 that it includes a significant amount of non-hazardous waste
24 thereby placing burdensome and unreasonable requirements on
25 many publishers.
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Thank you very much. I would be happy to answer
questions to the extent I can. As I said, we will be submit-
ting written comments; and to the extent your questions are
technical, maybe I will have to defer to our written comments
DR. VIVIANI: The Agency was under the impression
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„ that some of this wash water was drummed and sent to landfills
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We were told that maybe this wasn't a common practice. It is
done occasionally.
We are certainly going to go back and reexamine our
information, but if you can provide any information as to
whether or not this wash water is ever drummed and landfilled,
we would certainly appreciate it.
MR. GAYNOR: Would that have to be a sanitary land-
fill or hazarous waste —
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DR. VIVIANJ: It doesn't much matter what type of
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facility it is brought to, but we were told that in many
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cases or in some cases at least, it doesn't go out the
effluent pipe but is drummed and land disposed.
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MR. GAYNOR: It is not clear from the proposed
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regulations that that is the procedure you would allow even
if it is drummed.
90 DR. VIVIANI: Well, I think the point is that that
would certainly come under our jurisdiction, drummed waste —
MR. GAYNOR: Oh, I see what you are saying.
9. DR. VIVIANI: — and land disposed. It would not
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come under the Clean Water Act at all.
MR. GAYNOR: I see what you are saying. Certainly
3 if that is the delineation you are making of your jurisdiction
4 it ought to be spelled out in the proposal so that members of
the industry who are discharging directly into sewage systems
would not be covered.
Is that —do you intend to make that distinction?
8 DR. VIVIANI: I am not qualified to make any
9 distinction. Lisa?
10 MS, FRIEDMAN: I think in our proposed regulation,
there appears to be sort of misunderstanding that needs to be
,2 worked on. We do not intend in our proposed regulations to
13 regulate the discharge of wash water into a navigable water.
14 We would regulate it as if it were treated as a lagoon area.
15 MR. GAYNOR: Surely.
16 MS. FRIEDMAN: Kind of a holding area or something
like that. Nor do we intend to regulate the discharge of
8 wash water into a publicly owned treatment works sewage
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MR. GAYNOR: Well, it could be then that we have
., no argument with you since those are the two situations we
99 are concerned with.
93 MS. FRIEDMAN: This misunderstanding will be
clarified in the regulation.
.,5 MR. GAYNOR: Good I
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MS. FRIEDMAN: I have one point. You made the
statement when you gave your presentation that your client
did not believe that printing wash water is hazardous.
MR. GAYNOR: Yes.
MS. FRIEDMAN: Do you have the data on this wash
water?
MR. GAYNOR: We are going to try to supply that in
our detailed comment.
MS. FRIEDMAN: Okay, that would be very helpful.
MR. GAYNOR: We are in the process now of collecting
that information.
MR. CORSON: One other point to ask if you could
clarify for us. In your client's comments, you did indicate
I believe that your feeling, your client's feeling, was that
some of the colored inks may have this problem. Now I notice
you mention yellow and —
MR. GAYNOR: Yellow and red.
MR. CORSON: — red, which I guess is two of the
three colored inks that you use, and everything else comes
from those three major and the three primary. Perhaps you
could provide to us in your comments a more accurate descrip-
tion, if you think it is appropriate, of that part of the
printing industry to whom you feel such a ddesignation of
hazardous waste should apply.
Because our intent is not to make it so broad that
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we are including 10 times the number to force them to test
out. We would like to make it fine enough to bring all those
in that should be in, but also clear so those who are not in
are not covered.
MR. GAYNOR: We are attempting to collect that data,
and one of our problems I think is in the collection of the
data, and it may be that this is an area that EPA could
explore more, in more detail also.
9 MR. CORSON: Okay.
10 MS. FRIEDMAN: One other point. We will be extend-
u ing the comment period —
19 MR. GAYNOR: Yes. To when? I didn't hear the date.
13 MS. FRIEDMAN: I think it will be 45 days.
14 MR. GAYNOR: Forty-five days?
15 MS. FRIEDMAN-: Right.
16 MR. GAYNOR: Thank you very much.
MS. FRIEDMAN: Which would take you up to November
18 25th.
19 MR. GAYNOR: Thank you very much.
9Q MS. FRIEDMAN: Our next speaker will be Dr. Stacy L.
Daniels. He is with Dow Chemical Company.
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PRESENTATION OF:
2 DR. STACY L. DANIELS,
THE DOW CHEMICAL COMPANY:
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DR. DANIELS: My greeting to the panel. I am glad
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I am not the lead-off speaker like I was in St. Louis to be
followed by Barry Commoner (ph) . I don't see him in the
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audience today, so I assume I am free from locking horns with
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him today.
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Miss Chairperson, I am Dr . Stacy L. Daniels,
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Research Specialist in Environmental Sciences in the Health
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and Environmental Sciences Department of the Dow Chemical
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Company. As chairman of our corporate RCRA task force, I
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wish to summarize our concerns on the issues raised by the
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Agency in the supplemental listing of hazardous wastes and
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the accompanying background document.
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We worked closely with the Agency. :and. with various
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trade organizations, professional societies and standard
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setting groups for the past two and a half years to develop
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a consistent set of meaningful regulations for hazardous
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waste management that will provide adequate benefits in
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protection of human health and: the .environment from unreason-
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able risk while demanding realistic expenditures of resources,
Toward this goal, we have provided comments on all
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major aspects of this draft and the proposed regulations .
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Today we wish to summarize our major concerns in four areas:
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first the supplemental listing and delisting; two, the
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inapplicability of generic listing; three, the lack of support
ing evidence; and four, the classification of wastes by degree
of hazard and facilities by degree of control as they pertain
to generic listing.
With regard to the supplemental listing and delist-
ing, the Agency proposes to add approximately 45 wastes to the
initial listing to include 16 generic waste streams purported
to contain significant quantities of chlorinated organic
9 compounds and 28 specific processes supposedly generating
10 hazardous wastes.
We have serious objections to both the general
12 procedure employed to prepare the supplemental list and
13 particularly to the use of generic format for listing wastes
14 as hazardous. The identification of some hazardous waste
15 is contrary to the statutory mandate of RCRA- which requires
16 proper publishing of criteria and listing of only paritcular
17 hazardous wastes.
18 About 87 percent of the newly proposed wastes are
19 based on three candidate characteristics of hazard; that is,
mutagenicity, bioaccumulation, and/or toxic organic; which
21 are not defined as characteristics and do not meet the defini-
tion of hazardous waste.
23 We recommend, therefore, that all supplemental
24 wastes that are proposed to be listed because of mutagenicity,
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bioaccumulation or toxic organic be deleted.
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The listing of hazardous waste based upon candidate
2 characteristics having no validated methods and no verifying
3 data on actual wastes is improper. For the listing of
4 hazardous waste, the Agency relies on only four characteris-
tics of hazard; namely, ignitability, corrosivity, reactivity
6 and toxicity, all of which have available test protocols.
7 The use of the candidate characteristics for purposes of list-
g ing or delisting is pure speculation.
9 We recommend that the candidate characteristics of
10 mutagenicity, bioaccumulation and toxic organic be deferred
from consideration until validated methods are developed and
12 sufficient data are generated to define their utility and
13 interpretation of hazard.
14 The listing of hazardous wastes based solely upon
15 characteristics for which there are no validated methods
16 preclude delisting of such wastes. We believe that listing
17 and delisting should be conducted on equal bases. If the
ig Agency has no validated tests and no supporting data for
19 listing, then it should not require an applicant to attempt
the impossible.
We recommend that both listing and delisting be
92 based on identical procedures.
We object specifically to the incorrect listing of,
24 quote, "heavy ends from the production of glycerine from
05 allyl chloride," unquote, as hazardous. The Agency has
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i confused process intermediates, wastes and final products.
2 The glycerine still bottoms are, in fact, a mixture of
3 nontbxic glycerine and polyglycerines which are widely used
4 in many commercial products, including the toothpaste you may
5 have used this morning.
0 They contain no detectable epichlorohydrin and less
7 than two parts per million of trichloropropane, the two com-
8 ponents which have formed the basis for the tentative listing.
9 We will be happy to supply further details in a separate
10 communication. You are considering extending the comment
H period for other SIC codes; I would request that this one
12 also be considered.
13 We recommend that heavy ends from the production
14 of glycerine from allyl chloride be deleted from the supple--
15 mental list.
16 With regard to the inapplicability of generic list-
17 ing, the Agency has proposed to list 16 additional waste
18 streams generated in the production of chlorinated organic
!9 chemicals as hazardous. We disagree with the Agency's approac^
20 of a generic format as invalid, inappropriate and inapplicable
21 as an index of hazard.
22 We do not believe the Agency has shown adequate
93 justification for the use of generalized elemental composition
04 or chemical structure in the determination of hazard. Such a
25 simplistic approach will only compound the already
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overclassification of solid wastes as hazardous.
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I Generic listings of organic production wastes such
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as chlorinated organics, brominated organics, phenols and
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aromatic amines, which are being presently considered, are
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scientifically indefensible and are contrary to the express
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statutory language of the RCRA which provides for the listing
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of particular hazardous waste rather than a general or
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universal listing. The discussion of the proposed supplemen-
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tal listing conveniently omits the adjective, "particular."
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We assume this omission is unintentional.
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We recommend that all listings be restricted to
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particular hazardous wastes.
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Congress never intended to authorize generic list-
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ings of hazardous waste. Explanation of listing should relate
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to: quantity; concentration; physical, chemical or
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infectious characteristics and other factors which contribute
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to the hazardous nature of the substance and which EPA is to
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consider as part of the listing process.
19
We recommend that listing be restricted to specific
20
factors adversely affecting human health and the environment.
21
We consider the use of generic listing to be
22
improper when based on criteria which have not been proposed.
23
The Agency states that the mere existence of a generic waste
24
group is not sufficient cause or justification for its
25
inclusion on the hazardous waste list. And they further
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25
state their intent to use a criterion of similarity of waste
streams described by generic group quantitatively or qualita-
3 tively so that all individual members of the set meet the
4 particular listing or characteristics which indict the group
as a whole.
The Agency then proceeds to identify seven sub-
criteria never subjected to rule making. The previous listing
of electroplating waste water treatment sludge cited as the
9 precedent for this action contains no mention of generic for-
10 mat-
We specifically request that the Agency withdraw
the generic categories of hazardous waste and publish the new
13 criterion and sub-criteria for public comment.
14 With regard to the lack of supporting evidence, the
15 use of the generic listing is scientifically unfounded. The
16 Agency has not adequately demonstrated that the chlorinated
organics as a class are hazardous. The supporting evidence
with the background document, BD-5A, is grossly insufficient
19 to support an overall generic listing.
Reaction similarity is overstated for chlorinated
21 organics. Clorination is a process which may involve a wide
variety of chlorine sources and the attachment of the chlor-
23 ine atom in many ways resulting in chlorine being retained in
24 the final product, recovered in a side stream, or simply
95 neutralized into an inorganic salt.
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26
, For example, and I quote: "Solution residues from
2 the production of chlorinated polymers," unquote, often
c, involve the aqueous suspension chlorination of a previously
o
formed polymer with the final solution residue being an
, inorganic brine containing primarily sodium chloride rather
0
„ than a mixture of any chlorinated organics.
The toxicity of chlorinated organics is not appar-
ent. The toxicities of 45 compounds reported by the Agency
in Appendix E of the background document is a random compila-
10 tion of chlorinated and non-chlorinated compounds supposedly
indicted from earlier appendices. These data are a hash of
12 different animal species subjected to different routes of
13 exposure and evaluated by different bases of mortality.
.. The characteristic of toxic organic is supposedly
15 based on a calculated equivalent leachate concentration as
16 derived from acute oral mammalian toxicity to the white rate;
17 namely, LD50 in units of milligrams per kg.
18 We have compiled comparable values for this specific
parameter for 49 listed compounds contained within the main
9Q body of the background document in Appendix E. These values
91 range from 46 to 28,700 milligrams per kilogram, with both
.,2 extremes being for non-chlorinated compounds.
93 Ten compounds, including five chlorinated organics,
,,4 are less toxic than the acetic acid proposed as a simulated
95 extractant and excluded as non-hazardous. There is no clear
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27
distinction between chlorinated and non-chlorinated compounds
over a range of three orders of magnitude.
3 The aquatic toxicities as reported by the Agency
4 are incomplete and nonspecific. This is the fault of the
5 NIOSH registry which is an incomplete source of aquatic
6 toxicity data. We have compiled values for the acute toxicity
to the fathead minnow expressed as LC50 in units of milligrams
per liter for 32 listed compounds contained within the main
body of the background document and Appendix E.
10 Values ranged from 28 to 1,620,000 micrograms per
liter. Nine compounds, including five chlorinated organics,
12 were less toxic than acetic acid. There was again no clear
13 distinction between chlorinated and non-chlorinated compounds
14 over a range of almost five orders of magnitude.
15 Specific composition formulations do not reveal
16 high concentrations of toxic chlorinated organics. Only five
17 of 25 wastes reported by the Agency in the background document
18 in Appendix A have quantitative analyses. Most of the rest
19 are limited to the qualitative presence of three or less
20 specific compounds.
91 No criteria have been provided as to what consti-
tutes high toxicity or high concentration. This is in direct
23 disregard to the Congressional mandate to consider quantity,
24 concentration and chemical form.
25 Threats to human health and the environment are
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28
not proven. The background document does not provide an
adequate data base to support the generic listing of chlor-
inated organics based on damage cases. Two of the cases
cited by the Agency are attributed to a single compound in
each case. The third case involved a small group of compound
detected in groundwater at a single site with no demonstrable
damage.
Only three of 143 groundwater analyses exceed the
g calculated equivalent leachate concentration — that is, the
10 0.35 factor times the calculated human LD50 — which is the
n apparent basis for listing. Only two analyses exceed the
12 median aquatic toxicity for the respective compounds.
13 We conclude that these limited cases are not
14 representative but indeed are limited in scope, deficient in
15 substance and inconclusive for purposes of generalization.
16 We recommend the Agency limit their attention to
17 specific process streams which actually generate a signifi-
18 cant hazardous waste.
And finally with regard to classification of wastes
20 by degree of hazard and facilities by degree of control as
they pertain to the generic listing; the Agency has correctly
22 identified degree of hazard as a major issue. We have
23 repreatedly indicated in our comments on section 3001, in our
24 special supplement on degree of hazard, and in the subsequent
95 addendum submitted to the Agency at their specific request,
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29
that RCRA requires consideration of degree of hazard.
2 Both the legislative history and the statutory lan-
3 guage of RCRA indicate that hazard is a function of both
4 varying effect and varying exposure. Effects are dependent
upon the nature of individual wastes; exposures are dependent
upon the nature of individual wastes and upon the method of
control andthe specific site of disposal.
Attempts to classify facilities without classifying
9 wastes is an incomplete response. The use of a generic format
10 would negate any degree of hazard classification by incor-
rectly assuming that all wastes of generalized elemental com-
12 position or chemical structure have the same effect upon
13 exposure.
14 This assumption is clearly and scientifically
15 incorrect. Generic listing is fundamentally incompatible- with
16 the requirement of listing by degree of hazard. The use of
17 a generic format is a regressive approach which will result in
18 a waste being denoted as hazardous through guilt by associa-
19 tion rather than as a function of specific properties.
We recommend, therefore, that classification of
21 wastes be based on degree of hazard and that classification of
2 facilities be based on degree of control.
93 Thank you.
24 MS. FRIEDMAN: Will you take questions from the
95 panel?
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30
I DR. DANIELS: Yes, I will.
2 DR. VIVIANI: Stacy, when we developed a generic
3 listing, we went through about 20 or 30 chlorinated organic
4 waste streams; in fact, all the ones we had data for at
5 headquarters, and then we went out to the regions and we
6 looked at maybe another 10 or 15. I think they are all in
the background document. And we looked at the analysis we
had.
In every single case there were what we thought
very high levels of chlorinated organics found in them. Now
the fact that we were unable to find even one waste stream
12 in these processes that didn't contain chlorinated organics
13 certainly indicated to us that there was some sort of a trend
14 here.
15 If you have information that indicates this is not
the case and if you can supply us with analytical data from
17 these waste streams indicating that in many cases or even in
18 a majority of cases high concentrations of chlorinated organ-
19 ics are not to be found, we would certainly appreciate the
,,0 information.
DR. DANIELS: We will be pleased to do that. On
2 the two that I mentioned here, the solution and chlorination
23 of an already formed polymer and also the glycerine still
24 bottoms — those are two specific ones. However, it is hard
25 to respond to something on how high is high.
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31
1 DR. VIVIANI: Well, even if you could just give us
2 the analytical data on the ones we specifically mention in the
3 background data; if that information is incorrect, in fact it
4 was either a bad sample or bad analytical technique or for
5 some reason those chlorinated organics are not typically found
6 in those waste streams, we would like to be made aware of that
7 Because we can only act on the information we have.
3 DR. DANIELS: If you can extend the comment period
9 on those two that I mentioned, we can talk specifically on
10 those and attempt to add to that all we have on the other
11 ones.
12 Specifically though, with regard to the toxicity
13 values and things like this, this is the other thing that
14 isn't really factored into that. If you have a concentration
15 of X parts pe-r million of alpha-methyl ump-de-gump; is that
16 a hazard or not? And while you admit in the background docu-
17 ment that you are not indicting by mere presence, there seems
18 to be a lot of indications to that; and that is what I would
19 like to have clarified.
20 DR. VIVIANI: Okay. I think that if you go back
2i to the background document — I am sure you have read it many
22 times — you will notice that it is never a case of us having
93 just one chlorinated organic. It is usually a range, and in
24 many cases, there are things like HCBs and other hydro-
25 chlorinated, virtually .indestruetable organic chemicals
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32
! in the waste stream.
2 Again/ if this range does not occur, if you find
3 that it is typically just one or two of the less toxic ones
4 that you mentioned in your paper that are only present in
5 these waste streams; again we would be very happy to see that
6 information.
7 DR. DANIELS: I think that this is a case of the
8 OSW being guilty of the same trend within the Agency that
g the chlorinated organic is a bad compound and a persistent
10 compound, and that is not true across the board. It is just
u the generalization that I object to; that a chlorinated
12 organic could be biodegradable, it could be relatively non-
13 toxic compared to something else. It could be insoluble. It
14 could be volatile. There are a lot of physical properties
15 that aren't fully considered here that really don't indict
16 chlorinated organics as a class.
17 Everybody else is very quiet this morning.
18 MS. FRIEDMAN: I have a question. In your statement
19 you said you would be happy to supply details on the data you
o0 have on glycerine still bottoms.
21 DR. DANIELS: Yes.
09 MS. FRIEDMAN: If you could submit that, —
03 DR. DANIELS: We will be providing detailed written
04 comments by the formal closing date, which is Friday.
05 MS. FRIEDMAN: With respect to glycerine still
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33
bottoms, you made a statement that some contain nontoxic
glycerine and polyglycerine. If there were a procedure which
3 would allow to do this, glycerine still bottoms if they con-
4 tain nontoxic as opposed to toxic glycerine; would that meet
some of your concerns?
DR. DANIELS: Well, glycerine specifically is about
the least toxic compound next to water that I know of. It
is the other trace organics that are apparently indicted in
9 this particular case. And I think it is a miswording that is
10 the confusing part of this particular waste.
Because there aren't really wastes associated with
12 this process other than waste water and the final product.
13 MS. FRIEDMAN: You made a criticism that we had
14 given no opportunity to comment on the criteria and sub-
15 criteria for the generic listings which are contained in the
16 background document. You don't feel that you can comment
on this criteria contained in the background document?
18 DR. DANIELS: That the first place that they have
ig appeared. We have never seen them before in any official
9g channel.
21 MS. FRIEDMAN: But you still feel that you can't
comment on them as part of the background document?
23 DR. DANIELS: Well, we are commenting in a.'.limited
94 time that we have, in the 45-day period. Specifically I am
95 referencing the sub-criteria, those seven items that begin
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34
on page four of BD-5A.
MS. FRIEDMAN: My last question is: Apparently you
3 do feel that some chlorinated organics are hazardous, and
4 we would really appreciate any information that you have on
ways that we could distinguish between those which of the
c chlorinated are hazardous or non-hazardous. In other words,
o
7 what we can shoot at as the dividing line.
DR. DANIELS: If the definition of hazardous waste
9 would settle down instead of being a moving target, I think
,0 we could comment a little more carefully on that. But at
u the present time, we are faced with comparing LDSOs and
.„ LC50s and things like this. We can't comment on mutagenicity
13 because the data has not been supplied by the Agency at this
point
15 .MS. FRIEDMAN: Well, apparently Dow Chemical has
16 its own opinion of where that dividing line should be, and I
17 think it owuld be very helpful for us if you could provide
18 that, of where you think the cut-off point should be for
ig listing or not listing these various chlorinated organics
20 in it.
Thank you very much.
99 Would anyone else wish to make a statement?
,,3 (No response)
.,4 VOICE: I have a question.
•>5 MS. FRIEDMAN: We made an initial statement that
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35
we are not going to answer any questions today unless for
clarification of a proposed regulation.
3 VOICE: No questions?
4 MS. FRIEDMAN: No.
This hearing is adjourned.
(Whereupon, at 9:50 a.m., the public hearing was
adjourned.)
9
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36
2
3 REPORTER'S CERTIFICATE
4
5 DOCKET NUMBER:
6 CASE TITLE: Public Hearing: Proposed Amendment to List of
Hazardous Waste
7 HEARING DATE: October 9, 1979
8 LOCATION: Washington, D.C.
9
10 I hereby certify that the proceedings and evidence
herein are contained fully and accurately in the notes
12 taken by me at the hearing in the above case before the
Environmental Protection Agency
lo
and that this is a true and correct transcript of the same,
15
L6
17
18 Date: October 9, 1979
19
20
21
23
25
Official Reporter
Acme Reporting Company, Inc.
1411 K Street, N.W.
Washington, D.C. 20005
24
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RESOURCE CONSERVATION AND RECOVERY ACT
Hazardous Waste Guidelines and Regulations
Comments on Supplemental Proposed Rule
Additions to Proposed Listing of Hazardous Waste
The Dow Chemical Company
to the
U.S. Environmental Protection Agency
Hazardous Waste Management Division
Office of Solid Waste
Public Meeting
Washington, D.C.
October 9, 1979
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Mr. Chairman, I am Dr. Stacy L. Daniels, Research Specialist
in Environmental Sciences in the Health and Environmental
Sciences Department of The Dow Chemical Company. As Chairman
of our corporate RCRA Task Force, I wish to summarize our
concerns on the issues raised by the Agency in the supplemental
listing of hazardous wastes (44 PR 49402-5, August 22, 1979),
and the accompanying Background Document (BD-5A).
We have worked closely with the Agency, and with various trade
organizations, professional societies, and standard setting
groups, over the past 2-1/2 years to develop a consistent set
of meaningful regulations for hazardous waste management that
will provide adequate benefits in protection of human health
and the environment from unreasonable risks while demanding
realistic expenditures of resources. Toward this goal, we
have provided comments on all major aspects of the draft and
proposed regulations. Today we wish to summarize our major
concerns in four areas: (1) the supplemental listing and
delisting, (2) the inapplicability of generic listing, (3)
the lack of supporting evidence, (4) the classification of
wastes by degree of hazard and facilities by degree of control.
-------
(1) Supplemental Listing and Delisting
The Agency proposes to add approximately 45 wastes to the
initial listing (43 FR 58946, 58957-9, December 18, 1979) to
include: 16 generic waste streams purported to contain signi-
ficant quantities of chlorinated organic compounds, and 29
specific processes supposedly generating hazardous waste. We
have serious objections to both the general procedure employed
to prepare the supplemental lists and particularly to the use
of a generic format for listing wastes as hazardous.
The identification of some hazardous wastes is contrary to the
statutory mandate of RCRA which requires proper publishing of
criteria and listing of only "particular" hazardous wastes.
About 87$ of the newly proposed wastes are based on three
candidate characteristics of hazard, i.e. mutagenicity (M),
bioaccumulation (B), and/or toxic organic (0) which are not
defined as characteristics and do not>neei the definition of
hazardous waste.
We recommend that all supplemental wastes that are proposed
to be listed because of mutagenicity, bioaccumulation, or
toxic organic be deleted.
-------
The listing of hazardous waste based upon candidate character-
istics having no validated methods and no verifying data on
actual wastes is improper. For the listing of hazardous waste,
the Agency relies on only four characteristics of hazard, namely,
ignitability (I), corrosivity (C), reactivity (R), and toxicity
(T), all of which have available test protocols. The use of
the candidate characteristics for purposes of listing or delisting
is pure speculation.
We recommend that the candidate characteristics of mutagenicity,
bioaccumulation, and toxic organic be deferred jTrom consideration
until validated methods are developed and sufficient data are
generated to define their utility and interpretation of hazard.
The listing of hazardous wastes based solely upon characteristics
for which there are no validated methods fca preclude delisting
of such wastes. We believe that listing and delisting should
be conducted on equal bases. If the Agency has no validated
tests and no supporting data for listing, then it should not
require an applicant to attempt the impossible.
We recommend that both listing and delisting be based on
identical procedures.
-------
We object specifically to the incorrect listing of "Heavy
Ends from the Production of Glycerine from Allyl Chloride"
(SIC 2869, BD-5A at 92) as hazardous. The Agency has confused
process intermediates, wastes, and final products. The glycerine
still bottoms are, in fact, a mixture of non-toxic glycerine
and polyglycerines which are widely used in many commerical
products. They contain no detectable epichlorohydrin and less
than 2 ppm of trichloropropane (1,2,3-). We will be happy to
supply further details in a separate communication.
We recommend that Heavy Ends from the Production of Glycerin
from Allyl Chloride be deleted from the supplemental list.
(2) Inapplicability of Generic Listing
The Agency has proposed to list 16 additional "Waste streams
generated in the production of chlorinated organic chemicals"
as hazardous. We disagree with the Agency's approach of a
generic format as invalid, inappropriate, and inapplicable as
an index of hazard. We do not believe the Agency has shown
adequate justification for the use of generalized elemental
composition or chemical structure in the determination of
hazard. Such a simplistic approach will only compound the
already overclassificiation of solid wastes as hazardous.
-------
Generic listings of organic production wastes, such as chlori-
nated organics, brominated organics3 phenols, and aromatic
amines, are scientifically indefensible and are contrary to the
express statutory language of the RCRA which provides for the
listing of "particular' hazardous waste rather than a general
or universal listing. The discussion of the proposed supple-
mental listing conveniently omits the adjective "particularrt.
We assume this omission is unintentional.
We recommend that all listings be restricted to "particular"
hazardous wastes.
Congress never intended to authorize generic listings of hazard-
ous waste. Explanation of listing should relate to: "(Q)uantity,
concentration, physical, chemical or infectious characteristics...
and other factors...which contribute to the hazardous nature
of the substance and which EPA is to consider as part of the
listing process." (House Report at 25, emphasis added).
We recommend that listing be restricted to specific factors
adversely affecting human health and the environment.
We consider the use of generic listing to be improper when
based on criteria which have not been proposed. The Agency
states that "the mere existence of a generic waste group is
-------
not sufficient cause or justification for its inclusion on
the hazardous waste list." (BD-5A), and their intent to use
a criterion of "similarity of waste streams described by
generic group quantitatively or qualitatively so that all
individual members of the set. meet the particular listing
of characteristic(s) which indict the group as a whole."
(BD-5A at 3-4). The Agency the proceeds to identify seven
sub-criteria never subjected to rulemaking. The previous
listing of Electroplating Waste Water Treatment Sludge (BD-5
at 61-2) cited as the precedent for this action, contains no
mention of generic format.
We specifically request that the Agency withdraw the generic
categories of hazardous waste and publish the new criterion
and sub-criteria for public comment.
(3) Lack of Supporting Evidence
The use of generic listing is scientifically unfounded. The
Agency has not adequately demonstrated that the chlorinated
organics as a class are hazardous. The supporting evidence
(BD-5A) is grossly insufficient to support generic listing.
Reaction similarity is overstated for chlorinated organics.
Chlorination is a process which may involve a .wide variety
of chlorine sources and the attachment of the chlorine atom
-------
in many ways resulting in chlorine being retained in the final
product, recovered in a side stream, or neutralized into an
inorganic salt. For example, "solution residues from the
production of chlorinated polymers11 often involve the aqueous
(suspension) chlorination of a previously formed polymer with
the final solution residue being an inorganic brine containing
primarily sodium chloride rather than a mixture of chlorinated
organ!cs.
The toxicity of chlorinated organics as a class is not apparent.
The toxicities of 45 compounds reported by the Agency (BD-5A,
Appendix E) is a random compilation of chlorinated and non-
chlorinated compounds supposedly indicted from earlier appen-
dices. The data are a hash of different animal species subjected
to different routes of exposure and evaluated by different bases
of mortality.
The characteristic of toxic organic is supposedly based solely
on a calculated equivalent leachate concentration as derived
from acute oral mammalian toxicity to the white rat (LD50,
mg/kg). We have compiled comparable values for this specific
parameter for 49 listed compounds (BD-5A and Appendix E).
Values ranged from 46 to 28,700 mg/kg, with both extremes
for non-chlorinated compounds. Ten compounds including five
chlorinated organics, are less toxic than the acetic acid
proposed as a simulated extractant and excluded as non-hazardous.
-------
There is no clear distinction between chlorinated and non-
chlorinated compounds over a range of three orders of magni-
tude.
The aquatic toxicities as reported by the Agency "a-s incomplete
and nonspecific. We have compiled values for the acute toxicity
to the fathead minnow (LC50, mg/L) for 32 listed compounds (BD-5A
and Appendix E). Values ranged from 28 to 1,690,000 ;ig/L. Nine
compounds, including five chlorinated organics, were less toxic
than acetic acid. There was no clear distinction between chlori-
nated and non-chlorinated compounds over a range of almost five
orders of magnitude.
Specific composition formulations do not reveal high concen-
trations of toxic chlorinated organics. Only 5 of 25 wastes
reported by the Agency (BD-5A, Appendix A) have sufl quantita-
tive analyses; most of the rest are limited to the qualitative
"presence" of three or less specific compounds. No criteria
have been provided as to what constitutes "high" toxicity or
"high" concentration. This is in direct disregard to the
Congressional mandate to consider quantity, concentration,
and chemical form.
Threats to human health and the environment are not proven.
The Background Document does not provide an adequate data base
to support the generic listing of chlorinated organics based
-------
on damage cases. Two of the cases cited by the Agency are
attributed to a single compound in each case. The third case
involved a small groups of compounds detected in groundwater
at a single site with no demonstrable damage.
Only three of 1^3 groundwater analyses exceed the calculated
equivalent leachate concentration (0.35x calculated human LD50)
which is the apparent basis for listing. Only two analyses
exceed the median aquatic toxicity for the respective compounds.
We conclude that these limited cases are not representative but
indeed are limited in scope, deficient in substance, and incon-
clusive for purposes of generalization.
We recommend the Agency limit their attention to specific pro-
cess streams which actually generate a significantly hazardous
waste.
(4) Classification of Wastes by Degree of Hazard and Facilities
by Degree of Control
The Agency has correctly identified degree of hazard as a
major issue. We have repeatedly indicated in our comments on
Section 3001, in our special supplement on degree of hazard, and
in the subsequent addendum submitted to the Agency at their
specific request, that RCRA requires consideration of degree
of hazard. Both the legislative history and the statutory
language of RCRA indicate that hazard is a function of both
-------
varying effect and varying exposure. Effects are dependent
upon the nature of individual wastes; exposures are dependent
upon the nature of individual wastes and upon the method of
control and the specific site of disposal. Attempts to classify
facilities without classifying wastes are an incomplete response.
The use of a generic format would negate any degree of hazard
classification by incorrectly assuming that all wastes of
generalized elemental composition or chemical structure have
the same effect upon exposure. This assumption is clearly
and scientifically incorrect. Generic listing is fundamentally
incompatible with the requirement of listing by degree of hazard.
The use of a generic format is a regressive approach which will
result in a waste being denoted as "hazardous" through guilt
by association, rather than as a function of specific properties.
We recommend that classification of wastes be based on degree
of hazard and that classification of facilities be based on
degree of control.
ua 1876
SW-813
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