United States      Solid Waste and      EPA530-R-99-020I
Environmental Protection   Emergency Response     NTIS: PB99-155 939
Agency         (5305W)         ApriM998
Response to Comments
Document:  Land Disposal
Restrictions-Phase IV Final
Rule Promulgating Treatment
Standards for Metal Wastes;
Mineral Processing Secondary
Materials and Bevill Exclusion
Issues; Treatment Standards
for Hazardous Soils; and
Exclusion of Recycled Wood
Preserving Wastewaters;
Volume 12: Comments Related to
Capacity Analysis for Newly Identified
Toxicity Characteristic Metal Wastes
and Mineral Processing Wastes
      Printed on paper that contains at least 30 percent postconsumer fiber

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REPORT DOCUMENTATION
       PAGE
 | 1. Report No.
 I
 I
J_
                                    EPA530-R-99-020I
12.
I
I
13. Recipient's Accession No.

     PB99-155939
L
 4. Title and Subtitle
Response to Comments Document: Land Disposal Restrictions-Phase IV: Final Rule Promulgating Treatment
Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill
Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving Wastes;
Volume 12: Comments Related to Capacity Analysis for Newly Identified Toxicity Characteristic Metal Wastes
and Mineral Processing Wastes	
                                                                       5. Report Date
                                                                          April 1998
                                                                       6.
 7. Authors)
                                                                       8. Performing Organization Rept No.
 9. Performing Organization Name and Address

  U.S. EPA
  OFFICE OF SOLID WASTE
  401 M STREET, SW
  WASHINGTON, DC 20460
                                                                       10. Project/Task/Work Unit No.
                                                                       11. Contract © or Grant (G) No.
                                                                       (G)
 12. Sponsoring Organization Name and Address
                                                                       13. Type of Report & Period Covered


                                                                        Response to Public Comment
                                                                                                  14.
 15. Supplementary Notes
 16. Abstract (Limit: 200 words)


Summarizes and responds to public comments relevant to surface-disposed required and available treatment capacity. Addresses general
comments on treatment capacity, specific comments on available and required capacity for toxicity characteristic metal wastes, and specific
comments on available and required treatment capacity for mineral processing wastes.
17. Document Analysis a. Descriptors
   b. Identifiers/Open-Ended Terms
   c. COSATI Field Group

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                                        Table of Contents
 CHAPTER 1  INTRODUCTION	Page 1

 CHAPTER 2  AVAILABLE TREATMENT CAPACITY ISSUES	Page 3
        2.1     Stabilization	Page 3
                2.1.1    Stabilization Will Not Be Able to Meet Proposed Treatment
                       Standards for Specific Constituents or Waste Streams	  Page-3
                2.1.2    There Is Sufficient Capacity to Manage Stabilization Demand  	Page 23
                2.1.3    Lead Battery Slags and Sludges (D008) Can Be Treated by Stabilization
                       to the UTS for Lead and Underlying Metal Hazardous Constituents	Page 25
                2.1.4    Lead-Contaminated Soils Cannot Be Chemically Stabilized to Meet the
                       Proposed Treatment Standard for D008 Non-wastewater	Page 27
        2.2     Metal Recovery	Page 29
                2.2.1    EPA Did Not Evaluate HTMR Capacity	Page 29
                2.2.2    There Is Not Sufficient HTMR Capacity to Treat All TC Metal Wastes 	Page 37
                2.2.3    HTMR Capacity Exists to Treat TC Metal Wastes	Page 56
        2.3     Combustion	Page 58
                2.3.1    There Is a Lack of Capacity at Off-Site Incineration Facilities	Page 58
                2.3.2    Combustion of MGP Wastes Will Limit the Available Combustion Capacity ... Page 61
                2.3.3    Incineration Is Not an Appropriate Technology to Treat Contaminated Soil  .... Page 63
                2.3.4    Combustion Will Not Provide Adequate Treatment Capacity for
                       Mixed Radioactive Wastes	Page 65
        2.4     Other Issues	Page 67
                2.4.1    Sufficient Landfill Capacity Might Not Exist to Accommodate Affected Wastes  Page 67
                2.4.2    EPA Has Not Addressed Whether Sufficient Available Combustion Capacity Would
                       Remain to Treat the Volume of F024 and F032 Currently Being Generated	Page 69
                2.4.3    Treatment Standards	Page 71
                       2.4.3a   Treatment Standards Should Be Revised 	Page 71
                       2.4.3b   The UTS for Lead Exceeds Current Analytical Capability	Page 101
                       2.4.3c   EPA Has Not Conducted a Risk Analysis for Silver to Support
                               Weaker Treatment Standard	Page 103
                       2.4.3d   There Is No Technical or Legal Basis for Changing the UTS for Silver Page 106

CHAPTER 3 TC METAL WASTES  	Page 109
        3.1      Estimates of Required Capacity	Page 109
                3.1.1    EPA May Have Underestimated the Required Capacity for TC Metal Wastes. . Page 109
                3.1.2    Amount of Soil And Debris Requiring Treatment Will Exceed EPA's
                       Current Capacity Estimate	Page 117
                3.1.3    Additional Data Could Be Added on Required Capacity for TC Wastes
                       Mixed With Radioactive Wastes	Page 119
        3.2      Capacity Variance Issues for TC Metal Wastes	Page 122
                3.2.1    TC Metal Wastes	Page 122
                       3.2. la   Sufficient Capacity Does Not Exist to Meet Required Capacity for
                               TC Metal Wastes	Page 122
                       3.2.Ib   A Variance Is Needed for Wastes Containing More Than One
                               TC Metal	Page 127
                       3.2.1c   A Variance Is Needed for D004-D011 Wastes	Page 130


                                              Page iii    Preceding Page Blank

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                        3.2. Id  Large Volume of Sludge Justifies a Variance from the
                               Treatment Standards	Page 133
                        3.2.1e  A Variance for Any TC Metal Wastes Is Not Justified	Page 135
                3.2.2    Soil and Debris Contaminated with TC Metal Wastes 	Page 138
                        3.2.2a  A Capacity Variance Decision for TC Metal Soils Is Unclear	Page 138
                        3.2.2b  A National Capacity Variance Should Be Granted for Soil
                               and Debris Wastes	Page 143
                        3.2.2c  A Capacity Variance for Soil and Debris Wastes Is Not Justified .... Page 152
                3.2.3    Mixed Radioactive Wastes  	Page 154
                        3.2.3a  Clarification Is Required for the Applicability of the Two-Year
                               Capacity Variance for Mixed Radioactive Wastes	Page 154
                        3.2.3b  National Capacity Variance Is Needed for Phase IV Mixed
                               Radioactive Wastes	Page 159
        3.3      Other Issues	Page 170
                3.3.1    EPA Underestimated the Effects of the Proposed Phase IV LDR Rule
                        on TC Metal Wastes  	Page 170
                3.3.2    The Proposed UTS Level for Antimony Will Significantly Reduce
                        Useful Life of On-Site Hazardous Waste  Landfills	Page 173

CHAPTER 4  MINERAL PROCESSING WASTES	Page 175
        4.1      Estimates of Required Capacity	Page 175
                4.1.1    Companies Cannot Predict Whether On-Site or Off-Site
                        Capacity Will Be Needed 	Page 175
                4.1.2    Calcining  Wastes from Elemental Phosphorus Production
                        Should Be Subject to RCRA	Page 178
                4.1.3    Additional Data Exists on Mixed Radioactive Wastes	Page 181
        4.2      Capacity Variance  Issues	Page 183
                4.2.1    Process Wastes  	Page 183
                        4.2.la  Elemental Phosphorus  Waste Streams Should Receive a National
                               Capacity Variance	Page 183
                        4.2.Ib  Elemental Phosphorus  Waste Streams Should Not Receive a
                               National Capacity Variance  	Page 194
                        4.2. Ic  A Capacity Variance Is Needed  for Other Newly Identified
                               Mineral Processing Wastes  	Page 197
                        4.2. Id  A Capacity Variance Is Not Needed for Other Newly Identified
                               Mineral Processing Wastes	Page 209
                        4.2.1 e  Capacity Variances Are Needed for Characteristic Arsenic
                               and High Mercury Mineral Processing Wastes	Page 211
                        4,2. If  Capacity Variances for New Wastes Should Be Made Upon Petition  . Page 214
                4.2.2    Soil and Debris  	Page 216
                        4.2.2a  A Two-Year Capacity Variance  Is Needed for Soil Contaminated
                               With Newly Identified Mineral Processing Waste  	Page 216
                        4.2.2b  A Two-Year Capacity Variance  Is Needed for Manufactured
                               Gas Plant (MGP) Remediation Wastes	Page 221
                                                Page iv

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                                        CHAPTER 1
                                     INTRODUCTION
        As part of the Land Disposal Restrictions (LDR) Program, the Environmental Protection Agency
(EPA) has proposed a series of rules on land disposal restrictions for newly listed and identified wastes
known as "Phase IV".  EPA proposed the Phase IV rule in three proposed rules (the "original" proposal,
60 FR 43654, August 22, 1995; the "first supplemental" proposal, 61 FR 2338, January 25, 1996; and the
"second supplemental" proposal, 62 FR 26041, May 12, 1997) and two Notices of Data Availability
(NODAs) on Phase IV issues (61 FR 21418, May 10, 1996; and 62 FR 60465, November 10, 1997).

        This document summarizes those comments received in response to the proposed rules and
notices that are related to surface-disposed required and available treatment capacity.1 Each salient
comment that was directly related to capacity issues is  represented in two ways: (1) in summary form,
and (2) verbatim, i.e., a photocopy of the relevant portion on the commenter's comment letter.  The
source of each comment represented is indicated by the commenter name, comment number, and the
page number of the comment letter. Comments from the first supplemental, the first NOD A, the second
NODA, and the second supplemental proposal are denoted by SR, NODA1, NODA2, and 2SR,
respectively. For comments on the original proposal, just the commenter number and page number are
provided. This document also provides EPA's responses to capacity-related comments.

        The comment summaries are organized  in three chapters. Chapter 2 addresses general comments
on available treatment capacity.  Chapter 3 addresses specific comments on available and required
capacity for TC metal wastes, and Chapter 4 addresses  specific comments on available and required
treatment capacity for mineral processing wastes.
       1  This document only addresses surface-disposed wastes.  Wastes managed in Safe Drinking Water Act
(SDWA) underground injection wells are addressed in a separate document.

                                           Page 1

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                                         CHAPTER2
                     AVAILABLE TREATMENT CAPACITY ISSUES
 2.1     Stabilization

 2.1.1   Stabilization Will Not Be Able to Meet Proposed Treatment Standards for Specific
        Constituents or Waste Streams

        Many commenters stated that EPA's assumption that stabilization will be able to meet the
 proposed treatment standards for toxicity characteristic (TC) metal wastes is incorrect. Several of these
 commenters state that stabilization will not be able to meet the proposed treatment standards for specific
 constituents and/or specific waste streams.

 •       Rollins Environmental is concerned about the proposed treatment standards for nonwastewater
        selenium. They feel that the standard is not routinely achievable using best operating practices.
        Due to the different pH/solubility curves for selenium and the other characteristic metals, the
        treatment standard for selenium should remain at 1.0 mg/1 based on the toxicity characteristic
        leachate procedure (TCLP). (27:4)

 •       The Association of Battery Recyclers believes that the suggestion that the universal treatment
        standards (UTS) for lead and any underlying hazardous constituents (UHCs) expected to be
        present in D008 wastes can be achieved using high temperature metals recovery (HTMR) and
        stabilization is inaccurate.  HTMR is not an established best demonstrated available technology
        (BOAT) for treatment of D008 materials, and they believe that  currently demonstrated and
        available stabilization technology cannot be relied on to consistently achieve the UTS for lead
        and certain UHCs. (38:6-7)

 •       Battery Council International believes stabilization of D008 nonwastewaters cannot achieve
        concentration levels of 0.37 mg/1 for lead or 0.16 mg/1 for selenium. (45:3-4)

 •       Chemical Waste Management Inc. estimates indicate that approximately 5-10% of their currently
        approved stabilized waste will not be able to meet  UTS levels.  They believe that arsenic and
        selenium present technical problems when using stabilization to achieving lower treatment
        levels. (48:40-41)

•       The Non-Ferrous Founders Society states that none of the commercially available treatment or
        stabilization technologies for foundry wastes have  been demonstrated to meet HTMR-derived
        UTS for TC metal wastes. (72:2-3)

•       American Foundrymen's Society believes that stabilization technologies for lead, chromium,
        cadmium, and selenium have not been demonstrated to treat foundry sands to the proposed UTS.
        (77:10)

•       Brush Wellman stated that EPA needs to demonstrate that stabilization can  meet the UTS for
        beryllium; EPA must assess if stabilization and landfill capacity exist for these wastes.  (82:10)
                                            Page 3

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•      RSR Corporation and the Battery Council International & Association of Battery Recyclers
       stated that stabilization treatment of D008 nonwastewaters generated from secondary lead
       recycling activities cannot achieve the proposed treatment standards of 0.37 mg/1 or 0.16 mg/1
       for lead or selenium, respectively. (NODA1 6:2; NODA1 8:2)

•      INMETCO questioned whether the proposed standard of beryllium can be met by stabilization in
       the case of higher beryllium content wastes. (2SR 10:7-8)

•      Battery Council International & Association of Battery Recyclers believes that existing
       stabilization technologies cannot meet the proposed lead, silver, antimony, beryllium, and
       thallium standards for secondary smelter slag.  (2SR 17:6-7)

•      Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry of North America shares the
       concerns raised by INMETCO that the proposed standard for beryllium may not be achieved by
       stabilization for waste streams that contain higher levels of beryllium. (2SR 18:2-3)

       Four commenters [TDJ (26); Steel Structures Painting Council (69); Steel Manufacturers
Association (83); Specialty Steel Industry of North America (84)] expressed concern that stabilization of
wastes containing combinations of metal constituents may not be possible. The commenters believe that
EPA did not conduct sufficient research or analysis of such waste matrices. Several commenters
provide examples of wastes for which this appears to be a problem.

•      The TDJ Group states that EPA has completed extensive work on the ability of stabilization
       technologies to eliminate the leach characteristic of many waste streams with single inorganic
       constituents.  For example, cement stabilization has been shown as an effective method for
       stabilizing lead, cadmium, and chromium compounds, all near or below the proposed Phase IV
       standards. It should be noted that the same stabilization chemistry at a given percentage of
       addition may be more or less effective in stabilizing each of the constituents, and little is known
       about the effects of combined stabilization processes on a single waste stream. (26:2)

•      The Steel Structures Painting Council (SSPC) notes that lead-bearing paint wastes may contain
       chromium or cadmium. SSPC is not aware of any data stating that treatment with Portland
       cement will reduce chromium and cadmium to the new treatment levels.  (69:2)

•      The Steel Manufacturers Association and the Specialty Steel Industry of North America state
       that commercial stabilization technologies may not be able to meet the proposed treatment
       standards for steel-making wastes. One of the problems is that there is a mixture of different
       metals in these wastes which may preclude stabilization of all the TC metals to below their
       respective proposed UTS levels. (83:6-7; 84:7)
                                             Page 4

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Response

        The Agency disagrees with the statement made by some commenters that existing treatment
technologies cannot meet the UTS levels. The Agency has provided adequate data to show the capability
and availability of commercial treatment technologies such as stabilization and HTMR to meet the UTS
levels. Nevertheless, to compile additional evidence regarding the treatability of TC metal and other
wastes to the UTS, the Agency conducted site visits to several commercial hazardous waste treatment
facilities and collected additional stabilization and HTMR treatment performance data that better
represent the diversity of metal wastes. The performance data (based on grab samples) constitute a wide
range of metal-bearing wastes (both listed and characteristic) that the Agency believes represents the
most difficult-to-treat metal-bearing wastes. The types of waste treated included battery slag wastes,
mineral processing wastes, baghouse dust, soils, pot solids, recycling by-products, and sludge.
Regarding commenters concern  for waste streams containing multiple metals, the Agency notes that
these waste streams contain multiple metals that are representative of a characteristic waste with UHCs
and significant concentrations of potentially difficult combination metals.  For example, the waste
streams "cadmium sponge residue" and "baghouse dust waste" sampled at Rollins Environmental
contain multiple metals including cadmium, lead, and zinc.

       EPA then calculated the treatment standards from both stabilization and HTMR data and selected
the highest standard (less stringent) for each metal to establish the UTS. EPA selected the less stringent
standards to allow for process variability and detection limit difficulties. Based on these data, EPA
revised the treatment standards for certain TC metals and re-proposed the  standards in the second
supplemental proposal. Further, the Agency reviewed additional data submitted by the commenters in
response to the second supplemental proposal. EPA determined that the proposed standards for certain
metals (e.g., antimony, beryllium) do not represent BOAT with a "most difficult to treat" waste and,
therefore, revised the treatment standards for such metals.  EPA believes that the revised UTS levels are
achievable with grab sampling by both stabilization and HTMR technologies. (See the BOAT
Background Document for additional information on the development of the Phase IV treatment
standards.)

       Notwithstanding this analysis, the Agency recognizes that some wastes could possess unique
properties that make them more difficult to treat than the wastes on which  the standards are based. In
such cases, the affected party may petition the Agency for a treatability variance as per 40 CFR 268.44.
For newly identified wastes (i.e., wastes that do not fail the EP test and,  consequently, are not part of the
Third Third LDR Rule), affected parties may also request a capacity variance extension per 40 CFR
268.5 on a case-by-case basis. Wastes  regulated in the Third Third LDR Rule (i.e., wastes that fail the
EP test) are not eligible for capacity variances because the  extension provided in that rulemaking has
already expired.
Comments

•      Rollins Environmental (27:4)
•      Association of Battery Recyclers (38:6-7)
•      Battery Council International (45:3-4)
•      Chemical Waste Management (48:40-41)
•      Non-Ferrous Founders Society (72:2-3)


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American Foundrymen's Society (77:10)
BrushWellman(82:10)
RSR Corporation (NODA1 6:2)
Battery Council International & Association of Battery Recyclers (NODA1 8:2)
INMETCO(2SR 10:7-8)
Battery Council International & Association of Battery Recyclers (2SR 17:6-7)
Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry of North America (2SR18:2-3)
TDJ Group (26:2)
Steel Structures Painting Council (69:2)
Steel Manufacturers Association (83:6-7)
Specialty Steel Industry of North America (84:7)
                                     Page 6

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Commenter:           Rollins Environmental
Comment Number:     27
Page Number:          4
Selenium has a pH/solubility curve that is significantly different from other characteristic metals.
Selenium's minimum solubility is at a neutral to mildly acidic pH, while it is highly soluble in the basic
pH range (pH 8-12). The other characteristic metals have a minimum solubility in the strongly basic pH
range (pH 8-12), while their solubility increases in the neutral and acidic pH's.  This difference in
solubilities creates a problem for treating wastes with a mixture of characteristic metals which includes
Se. Since there is a difference in solubilities for the metals depending on the pH of the stabilized waste,
if a neutral pH is maintained in treatment Se won't leach but the other metals will, and if a high pH is
maintained the Se will leach while the other metals will not.
                                              Page?

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Commenter:           Association of Battery Recyclers
Comment Number:     38
Page Number:         6-7
B.     The UTSs Cannot Be Achieved using Current Best Demonstrated and Available
       Treatment r'BDAT") Technology
The proposed Phase IV Rule suggests that the UTSs for lead and any UHCs reasonably expected to be
present in D008 wastes can be achieved using HTMR and stabilization. This suggestion is inaccurate.
HTMR is not an established BOAT for treatment of D008 materials, and currently demonstrated and
available stabilization technology cannot be relied upon to consistently achieve the UTSs for lead and
certain UHCS.

In order to be considered BOAT for a waste, a treatment method must be "demonstrated" based on data
from "full scale treatment operations that are currently being used to treat the waste (or a similar waste)."
55 Fed. Reg. 22,536. In addition, the proposed treatment method must be commercially "available"
(i.e., able to be purchased). Id.  EPA has failed to meet these criteria in asserting that the use of HTMR
and stabilization will achieve the UTSs for D008 materials.
                                            Pa?e8

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Commenter:           Battery Council International
Comment Number:    45
Page Number:         3-4
Second, D008 nonwastewaters (slags, soils, sludges) cannot be chemically stabilized to the proposed
treatment concentrations. As the attached data and letter from Resource Consultants, Inc. (RCI)
demonstrates, stabilization treatment of D008 nonwastewaters cannot achieve concentration levels of .37
mg/1 for lead or 0.16 mg/1 for selenium. Instead, this data shows that based on the 99th percent
confidence interval, stabilization treatment of lead and selenium at secondary lead smelters for slag can
achieve, at best, concentration levels of 2.97 mg/1 for lead and 2.48 mg/1 for selenium. Treatment levels
for lead contaminated soils are much higher. RCI's data show that stabilization treatment of lead
contaminated soil can achieve, at best, a concentration level of 4.69 mg/1 level.

This is because the chemistry of D008 wastes are vastly different from the K061 wastes EPA reviewed
and apparently relied upon to conclude that stabilization technologies could meet the Treatment
standards for lead and selenium. K061 wastes are derived from the steel making process. The chemical
constituents of K061 are iron, zinc, chromium, nickel, and lead oxides.  K061 wastes typically contain
very little antimony, arsenic and selenium, oxygen is the principal anion in the leachable constituents of
K061 wastes.
                                             Page 9

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Commenter:           Chemical Waste Management
Comment Number:     48
Page Number:         40-41
In addition, initial estimates indicate that approximately 5-10% of our currently approved waste streams
will not be able to meet these UTS levels even with the development of new recipes (as in text).  This is
based on current estimates of our waste streams which currently meet Third Third (as in text) treatment
levels but do not reach proposed UTS levels.

In consideration of the facts presented above, the most disturbing aspect of this proposal is the Agency's
statement in the regulatory impact analysis under the Benefit Estimate Results discussion:

        "The Agency has estimated the benefits associated with today's proposed rule to be
        small". (See 60 Fed. Reg. at 43,690)

CWM believes that it is a significant statement that is not supported by the information presented in
these comments. To the contrary CWM believes that the potential benefits to the environment from
these changes are small while the projected costs are clearly not.  For these reasons CWM urges the
Agency to maintain the current D004-D011 BDAT levels.
                                            Page 10

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Commenter:          Non-Ferrous Founders' Society
Comment Number:    72
Page Number:         2-3
UTS Revision for TC Metals CNon wastewater): Since none of the commercially available treatment or
stabilization technologies for foundry wastes have been demonstrated to meet HTMR-derived UTS for
TC metal wastes, EPA must revise the UTS to reflect the results of technologies that are demonstrated
and commercially available for foundry wastes. As stated in the AFS comments to EPA regarding this
matter, "Establishing a 'technology forcing standard' for foundries' TC metal wastes violates RCRA and
the clear and expressed intent of Congress." Further, NFFS believes that the proposed UTS levels for
many of the TC metals are so minimal that many naturally occurring soils would not meet the new UTS
levels established by EPA in the LDRIV proposed rulemaking.
                                           Page 11

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Commenter:           American Foundrymen's Society
Comment Number:     77
Page Number:         10
There is only limited performance data for stabilization technologies in the rulemaking record. Some of
the results of stabilization in the LDR Phase IV rulemaking record were submitted by AFS as comments
to the proposed LDR Phase III rulemaking.  However, the stabilization data submitted by AFS for LDR
Phase III is not sufficient to determine treatment standards for TC metals under UTS. For example, one
of the sample sets in the record that presumably represents foundry waste would be more appropriately
described as "landfill wastes." See Proposed BDAT Background Document for TC Metal Wastes D004-
D011, July 26, 1995, n. 28 to Table A-4 at A-25. Furthermore, the Agency does not even have
information about the untreated characteristics of these "landfill waste" samples.  Therefore, any
treatment values reported for these wastes would be inconclusive. For example, the wastes could have
been diluted during landfill processing, or perhaps the waste samples never had any  UHCs in the first
place. Either way, the Agency should not rely on these landfill waste samples to determine the
performance of stabilization technologies for foundry wastes. Otherwise, the Agency could misinterpret
the ability of stabilization technologies to meet UTS for foundry wastes, as the Agency has apparently
done with LDR Phase IV.
                                           Pas?e 12

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Commenter:           Brush Wellman
Comment Number:     82
Page Number:         10
In anticipation of EPA's proposal, Brush Wellman began to make inquiries regarding commercially
available HTMR processes for its waste streams.  Brush Wellman discussed with Horsehead Resource
Development Company ("Horsehead") its ability to process Brush Wellman's beryllium-containing
wastes.  One such waste stream, a rotary filter sludge with lead concentrations above the toxicity
characteristic level, is the hazardous waste with the highest beryllium content currently generated by
Brush Wellman. This waste contains more than 14% beryllium.  At the time of Brush Wellman's
inquiry, Horsehead had a commercially available HTMR process in which it would treat the waste to
recover copper values. However, according to Horsehead, it estimated that the beryllium content of the
remaining slag would range between 7,800-8,700 ppm TCLP, well above the universal treatment
standard for beryllium.  A different waste stream,  containing only 0.4% beryllium was anticipated to
create a HTMR slag ranging between 100-120 ppm TCLP, also above the beryllium standard. Brush
Wellman has recently learned that Horsehead has discontinued this process and currently will accept
only K061 for HTMR processing. Thus, the only commercial HTMR outlet for Brush Wellman's
toxicity characteristic wastes is  no longer available and, if it were, it would not be able to process Brush
Wellman's waste so as to satisfy the universal treatment standard.
                                           Pase 13

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Commenter:           RSR Corporation
Comment Number:     NODA1 6
Page Number:         2
RSR supports BCI's separately submitted comments on this Notice and on the Phase IV proposed rule
that the data in the docket and referenced by EPA in the Notice clearly indicate that D008
nonwastewaters (e.g., slags, soils, sludges) generated from secondary lead recycling activities cannot be
chemically stabilized to meet the proposed Universal Treatment Standards for D008 wastes.
Specifically, these data demonstrate that stabilization treatment of D008 nonwastewaters cannot achieve
the proposed treatment standards of 0.37 milligrams per liter (mg/1) or 0.16 mg/1 for lead or selenium,
respectively. Instead, BCI's comments prove that the data show that based on the 99th confidence
interval, stabilization treatment of lead and selenium at secondary lead smelters can  achieve only
concentration levels of 2.97 mg/1 for lead and 2.48 mg/1 for selenium.
                                            Page 14

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Commenter:          Battery Council International & Association of Battery Recyclers
Comment Number:    NODA1 8
Page Number:         2
Data referenced by EPA in the NODA clearly indicate that D008 nonwastewaters (e.g., slags, soils,
sludges) generated from secondary lead smelting activities cannot be chemically stabilized to meet the
proposed Universal Treatment Standards of .37 mg/1 for lead and .16 mg/1 for selenium.  The
significance of this conclusion was fully described in our previous comments, submitted in November
1995 on the proposed RCRA LDR Phase IV rulemaking. See Tab 1.
                                           Page 15

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Commenter:          INMETCO
Comment Number:    2SR 10
Page Number:         7-8
B.     The Proposed Standard for Beryllium
The proposed revised UTS/BDAT standard for beryllium is 0.02 mg/L (rounded from 0.018 mg/L).  See
62 Fed. Reg. at 26046/2. This value was derived by applying EPA's "C99" BDAT methodology to 40
TCLP measurements of INMETCO's slag, reflecting analyses performed on grab samples collected in
1994.[fn7: See Memorandum to Anita Cummings from Stan Moore of Versar Inc., enclosing Draft
Report: Metals Treatment Standards Derived From Data Submitted by Industry (Item S0012 in Docket
F-97-2P4P-FFFFF); 62 Fed. Reg. at 26045/2.]  EPA's stabilization-based BDAT value for beryllium
(0.012 mg/L) reflected just four data points, and the waste streams involved showed very low beryllium
TCLP levels even before treatment. [fn8: See March 10, 1997 Memorandum to Anita Cummings from
Howard Finkel (Item S0011 in Docket F-97-2P4P-FFFFF), Waste Stream Identifier Table and
Attachments 1 and 4. Beryllium was non-detectable in the TCLP extract from 9 of the 11 raw waste
stream samples in EPA's overall stabilization database. See id., Attachment 1.]  Thus, there is a serious
question whether the proposed standard of 0.02 mg/L can be achieved by stabilization when the
wastestreams contain higher levels of beryllium.
                                          Page 16

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Commenter:           Battery Council International & Association of Battery Recyclers
Comment Number:     2SR 17
Page Number:         6-7
B.      Existing Stabilization Technologies Cannot Meet the Proposed Treatment Standards

EPA also has not demonstrated that existing stabilization technologies can
achieve the treatment standards for lead, silver, antimony, beryllium, and thallium.  EPA has proposed
treatment standards of 0.75 mg/1 for lead, 0.11 mg/1 for silver, 0.07 mg/1 for antimony, 0.02 mg/1 for
beryllium and 0.20 mg/1 for thallium based upon its analysis of a limited set of data obtained by Rollins
Environmental and GNB Technologies Inc.f fn7: See Memorandum of Howard Finkel to Anita
Cummings, Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Facility and GNB's Frisco, Texas Waste Treatment
Facility (Mar. 10, 1997).] EPA has erred in three respects in relying on this data: it is not representative;
it includes only  grab (as distinguished from composite) samples; and it for the most part was not derived
from the treatment of secondary smelter slag.
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Commenter:          Collier, Shannon, Rill & Scott, PLLC for Specialty Steel
                     Industry of North America
Comment Number:    2SR 18
Page Number:         2-3
111.   PROPOSED STANDARD FOR BERYLLIUM

SSINA shares the concerns raised by INMETCO that the proposed standard for beryllium of 0.02 mg/1
(which is based on INMETCO's slag) may not be achieved by stabilization for wastestreams that contain
higher levels of beryllium. This concern is legitimately based on the fact that beryllium was non-
detectable in the TCLP extract from nine of the eleven raw waste stream samples in EPA's overall
stabilization database.  See March 10, 1997 memorandum to Anita Cummings (Item 5001  1 in Docket F-
97-2P4P-FFFFF), Waste stream Identification Table. SSINA urges EPA to (1) evaluate the effectiveness
of stabilization in treating raw wastestreams with higher and more representative levels of beryllium; and
(2) to raise the beryllium UTS level commensurate with this additional data.
                                          Page 18

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Commenter:           TDJ Group
Comment Number:     26
Page Number:         2
The Agency has completed extensive work on the ability of stabilization technologies to eliminate the
leach characteristic of many waste streams with single inorganic constituents. For example, cement
stabilization has been shown as an effective method for stabilizing lead, cadmium and chrome
compounds, all near or below the proposed Phase Four standards. However, it should be noted that the
same stabilization chemistry at a given percentage of addition may be more or less effective in
stabilizing each of the constituents, and little is known about the effects of combined stabilization
processes on a singe waste stream. For example, cement stabilization of foundry baghouse dusts will
require a greater overall addition of cement to treat lead, cadmium and chrome constituents (when
present) in the same waste stream. In certain cases requiring maximum addition of treatment reagent,
effective treatment of chrome creates a condition where the treatment begins to elevate the leachability
of lead (due to the amphoteric  nature of lead).
                                            Page 19

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Commenter:           Steel Structures Painting Council
Comment Number:     69
Page Number:          2
The proposed treatment standard requires that when one metal is found to exceed the TCLP level (e.g.,
lead) the waste must be treated to the new treatment standards for all the heavy metals covered in the
rule. Our industry has no experience or data to determine if this is feasible.  Lead is most commonly
treated with Portland cement. Data have been-acquired (e.g., FHWA RD-94-100) that this method is
suitable for treating lead-bearing paint wastes to the new standard of 0.37 mg/1. However, some of these
wastes may also contain chromium or cadmium.  We are not aware of any data stating that the treatment
with Portland cement will also reduce the chromium and cadmium to the new treatment levels.
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 Commenter:           Steel Manufacturers Association
 Comment Number:     83
 Page Number:          6-7
 B.      There is Currently Inadequate Data in the Rulemaking Record on Commercially
        Available Stabilization Technologies to Determine the Appropriate UTS for Cadmium.
        Chromium, and Lead

 There is only limited performance data for stabilization technologies in the rulemaking record. The data
 in the record is not sufficient to address known interferences with stabilization technologies. The
 Agency has stated that stabilization has been documented "as a process that is highly matrix-dependent
 and prone to chemical interference." Final BDAT Background Document (Addendum) For All
 Nonwastewater Forms ofK061 and Alternative BDAT Treatment Standards For F006 and K062
 Nonwastewaters (July 1992) at 7-22.  In order to determine "whether stabilization is likely to achieve the
 same level of performance on an untested waste as on a previously tested waste," the Agency will focus
 on five characteristics, including other metals and the metals' concentrations.  BDAT Background
 Document For K061 (Aug. 1988) at 3-19 to 3-20. The Agency has also stated that "when a waste
 contains a mixture of metals, it may not be possible to chemically stabilize the waste in a manner that
 optimizes the reduction in leachability for all constituents. The extent to which synergistic  effects
 impact performance will depend on the type and concentration of other metals in the waste." Id. More
 specifically, the Agency has previously found that "[put another way, this means (assuming proper
 treatment performance) that the performance of the treatment system could achieve concentration levels
 below the characteristic level for lead but higher than the characteristic level for cadmium." 55 Fed.
 Reg. 22,520, 22,565 (June 1, 1990).  The presence of other heavy metals in a chemically stabilized waste
 sometimes precludes the stabilization of all the TC metals in the waste to below their respective UTS
 levels. Therefore, the UTS level for UHCs need to be raised in certain cases to optimize the stabilization
 treatment technology for other TC metal wastes.

 The data in the record for the LDR Phase IV proposed  rule are not adequate to address the interferences
 of other metals on the  stabilization technology for cadmium, chromium, and lead in nonwastewaters.
Additional information is required to evaluate the effectiveness of stabilization technologies on a broad
range of TC metal wastes with both high and low concentrations of heavy metals. A larger and more
representative range of stabilization treatment results must be developed and analyzed to assess other
 likely interferences in the stabilization technologies, e.g., pH and the presence of low concentrations of
organics. For example, among some chemically stabilized TC metal wastes, changing the pH to
minimize chromium leachate can increase the solubility of lead.  Therefore, these other characteristics of
TC metal wastes can have a significant impact on stabilization technologies and their ability to treat any
UHCs in a waste as well as the characteristic metal.
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Commenter:           Specialty Steel Industry
Comment Number:     84
Page Number:         7
B.      There is Currently Inadequate Data in the Rulemaking Record on Commercially
        Available Stabilization Technologies to Determine the Appropriate UTS for Cadmium.
        Chromium, and Lead

There is only limited performance data for stabilization technologies in the rulemaking record.  The data
in the record is not sufficient to address known interferences with stabilization technologies.  The
Agency has stated that stabilization has been documented "as a process that is highly matrix-dependent
and prone to chemical interference." Final BDAT Background Document (Addendum) For All
Non-waste-water Forms O/K061 and Alternative BDAT Treatment Standards For F006 and K062
Non-waste-waters (July 1992) at 7-22. In order to determine "whether stabilization is likely to achieve the
same level of performance on an untested waste as on a previously tested waste," the Agency will focus
on five characteristics, including other metals and the metals' concentrations. BDAT Background
Document For K061 (Aug. 1988) at 3-19 to 3-20. The Agency has also stated that "when a waste
contains a mixture of metals, it may not be possible to chemically stabilize the waste in a manner that
optimizes the reduction in leachability for all constituents. The extent to which synergistic effects
impact performance will depend on the type and concentration of other metals in the waste." Id. More
specifically, the Agency has previously found that "[put another way, this means (assuming proper
treatment performance) that the performance of the treatment system could achieve concentration levels
below the characteristic level for lead but higher than the characteristic level for cadmium." 55 Fed.
Reg. 22,520, 22,565 (June 1, 1990). The presence of other heavy metals in a chemically stabilized waste
sometimes precludes the stabilization of all the TC metals in the waste to below their respective UTS
levels.  Therefore, the UTS level for UHCs need to be raised in certain cases to optimize the stabilization
treatment technology for other TC metal wastes.
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2.1.2   There Is Sufficient Capacity to Manage Stabilization Demand

        One commenter [Environmental Technology Council (NODA1 14)] stated that there is more
than sufficient capacity to manage not only existing wastes but all TC wastes and soils subject to the
Phase IV Rule.

•      Environmental Technology Council (ETC) reported that the total of waste received by all RCRA
        permitted facilities, mostly in 1994, that required stabilization was 1,306,500 tons (HazSearch
        Database). This demand for stabilization contrasts with the EPA estimate of 6.0-8.1 million
        tons/year of stabilization capacity, depending on the year of the estimate. Based on  1994
        information, there is more than sufficient capacity to manage not only existing wastes but all TC
        metal wastes and soils subject to the Phase IV Rule. (NODA1 14:11)

Response

        EPA appreciates the data provided by the commenter and notes that the data have been
considered in the Capacity Analysis Background Document for determining the available treatment
capacity. As EPA had noted in that background document, the majority of the wastes are already being
stabilized and would only require minor modifications in the stabilization treatment system to meet the
proposed standards. Thus, adequate stabilization capacity exists for treating Phase IV wastes.  EPA also
followed-up with the commenter to obtain additional data to support the Agency's treatment capacity
determination. See the Capacity Analysis Background Document for the final Phase IV rule for
additional data provided by the commenter supporting EPA's treatment capacity  determination.

Comments

•       Environmental Technology Council (NODA1 14:11)
                                            Page 23

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Commenter:           Environmental Technology Council
Comment Number:     NODA1 14
Page Number:         11
This yields a total of 1,306,500 tons of waste received by these facilities, mostly in 1994, that required
stabilization.  This demand for stabilization contrasts with the EPA estimate of 6.0 - 8.1 million tons/year
of stabilization capacity, depending on the year of the estimate. Based on 1994 information, there is
more than sufficient capacity to manage not only existing wastes but all TC metal wastes and soils to the
Phase IV rule.
                                            Page 24

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2.1.3   Lead Battery Slags and Sludges (D008) Can Be Treated by Stabilization to the UTS for
       Lead and Underlying Metal Hazardous Constituents

       One commenter [Environmental Technology Council (NODA1 14)] stated that stabilization is
effective in meeting UTS for lead battery slags and sludges.

•      The Environmental Technology Council stated that stabilization of lead slag and sludge from the
       smelting of lead acid batteries (D008) can meet UTS levels for lead and underlying metal
       constituents. (NODA1 14:6)

Response

       EPA acknowledges the commenters confirmation that stabilization is effective in meeting UTS
for lead battery slags and sludges. EPA followed-up with the commenter to obtain additional data to
support the Agency's treatment capacity determination.  See the Capacity Analysis Background
Document for the final Phase IV rule for data provided by the commenter supporting EPA's treatment
capacity determination.

Comments

•      Environmental Technology Council (NODA1  14:6)
                                           Page 25

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Commenter:           Environmental Technology Council
Comment Number:     NODA1 14
Page Number:          6
Given that the objective of the treatment formulation was to reach the characteristic level that is over 5
times higher than UTS for Cadmium and over 10 times higher than UTS for Lead, the fact that UTS
levels were achieved in over 80% of these formulations is strong evidence that stabilization is indeed
effective in meeting UTS for slag. Formulations designed with the objective of meeting UTS would not
involve inordinate expense or difficulty to bring the remaining 10 to 20% of the stabilized slag values
under UTS.  Based on these treatability data, ETC believes there can be no doubt regarding the ability of
stabilization  to meet the UTS for this slag.
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 2.1.4   Lead-Contaminated Soils Cannot Be Chemically Stabilized to Meet the Proposed
        Treatment Standard for D008 Non-wastewater

        One commenter [Battery Council International & Association of Battery Recyclers (NODA1 8)]
 stated that the proposed D008 treatment level cannot be met for lead-contaminated soils.

 •      Battery Council International & the Association of Battery Recyclers stated that stabilization
        treatment of lead-contaminated soil can achieve, at best, a concentration level of 4.69 mg/1 - a
        level at least 12 times higher than the proposed treatment standard for D008 nonwastewaters.
        (NODA1  8:6)

 Response

        The Agency disagrees with the commenter that the proposed D008 treatment levels cannot be
 met for lead-contaminated soils. The Agency reviewed available treatment performance data from both
 listed and characteristic metal wastes while determining the for TC metal wastes. The Agency also
 conducted site visits to selected TSD facilities and collected treatment performance data on stabilization
 that show that a well designed stabilization system can effectively treat lead to the proposed standards.
 The Agency also compiled treatment performance data for contaminated soils from remediation case
 studies that indicate that the alternative treatment standards (10 times UTS or 90 percent reduction) can
 be achieved by commercially available treatment technologies.  Furthermore, the Agency notes that the
 waste generator can use any treatment technology, not just stabilization, to achieve the treatment
 standards. See the BDAT and Capacity Analysis Background Documents for treatment performance data
that show that the standards  can be achieved.

 Comments

 •       Battery Council International & Association of Battery Recyclers (NODA1 8:6)
                                            Page 27

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Commenter:           Battery Council International & Association of Battery Recyclers
Comment Number:     NODA1 8
Page Number:         6
EPA has requested, in the NODA, additional information on TC metal-contaminated soils that would
require treatment to meet the proposed LDR treatment standards.  In response to this request, we refer
the Agency to data we submitted on November 20, 1995, that showed stabilization treatment (i.e., the
BOAT for these D008 nonwastewaters) of lead-contaminated soil can achieve, at best, a concentration
level of 4.69 mg/1 ~ a level at least 12 times higher than the proposed treatment standard.

The proposed D008 treatment level cannot be met for contaminated soils primarily because of their
heterogeneity. As EPA has recognized in previous rulemaking efforts and the currently- proposed
RCRA HAIR-contaminated media rule, there are substantial physical and chemical differences in the
homogeneity of streams between hazardous contaminated media and hazardous "as generated" wastes
(that are subject to this proposed LDR rulemaking). This is the reason that, in the HAIR-contaminated
media rule, the Agency  is proposing a unique LDR treatment standard for managing hazardous
contaminated media (i.e., 90 percent treatment or 10 times the Universal Treatment Standard). The
HAIR considers the generally heterogeneous characteristic of hazardous contaminated soils, and the
potentially problematic  soil matrices and varying hazardous contaminant levels associated with the
treatment of contaminated soils. In reviewing data on soils in this rulemaking, the Agency similarly
should recognize the soils' physical and chemical characteristics, and not be driven to adopt a single
numerical standard because of the quantity or volume of soils potentially subject to it.
                                            Pa
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 2.2     Metal Recovery

 2.2.1   EPA Did Not Evaluate HTMR Capacity

        In the capacity analysis for the original proposed rule, EPA did not explicitly discuss HTMR
 capacity.  EPA focused on stabilization for meeting the treatment standards for TC metal wastes.  Six
 commenters [TDJ Group (26); Non-Ferrous Founder's Society (72); DOD (74); Brush Wellman (82);
 Steel Manufacturers Association (83); Specialty Steel Industry of North America (84)] asked EPA to
 include HTMR in its capacity analysis, since this technology is the one on which some of the treatment
 standards are based.

 •      The TDJ Group stated that EPA should perform an in depth review of HTMR capacity. (26:4)

 •      The Non-Ferrous Founder's Society stated that EPA has not proven that HTMR is an appropriate
        treatment technology for the universe of foundry TC  wastes in the Phase IV LDR proposed rule.
        They also stated that even if HTMR was the appropriate BOAT for foundry TC waste, EPA has
        not demonstrated that there is sufficient capacity to treat the amount of waste that will become
        subject to LDR IV UTS standards. (72:2)

 •      The Department of Defense asked EPA to review whether sufficient HTMR (or other treatment)
        capacity exists for lead -based paint wastes. (74:3)

 •      Brush Wellman stated that EPA's background document provides no information on commercial
        capacity for HTMR. (82:11)

 •      The Steel Manufacturers Association and the Specialty Steel Industry of North America stated
        that EPA must include HTMR in its capacity analysis. (83:7-8; 84:8)

Response

        EPA agrees that it did not explicitly discuss HTMR capacity, choosing  instead to focus on
stabilization as the predominant treatment. However, HTMR was discussed in the first supplemental
proposed rule. Furthermore, EPA has conducted extensive research on commercially available HTMR
technologies and developed a compendium of commercial HTMR facilities operating in the United
States. (U.S. EPA., Profiles of Metal Recovery Technologies for Mineral Processing Wastes and Other
Metal-Bearing Hazardous Wastes, Office of Solid Waste, April 1997). The Agency also refers the
commenter to the discussion on HTMR in the Capacity Analysis Background Document for additional
information on the commercial availability of HTMR, and the types of waste streams that are typically
processed using this technology.  The Agency believes that HTMR is a reasonable alternative treatment
technology for some TC metal wastes.  Several TC metal UTS (cadmium, chromium, silver, and
beryllium) are based on HTMR performance and, therefore, EPA has included HTMR in the capacity
analysis for the final rule. See the next section for additional  discussion of HTMR.
                                           Page 29

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Comments
       TDJ Group (26:4)
       Non-Ferrous Founder's Society (72:2)
       Department of Defense (74:3)
       BrushWellman(82:ll)
       Steel Manufacturers Association  (83:7-9)
       Specialty Steel Industry of North America (84:8)
                                           Page 30

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Commenter:           TDJ Group
Comment Number:     26
Page Number:         4
We would request that the Agency rescind the proposed rule and gather additional data. We are
particularly concerned that these standards, as proposed, will raise future debate on the apparent break
between the characteristic limits now in force for TC wastes and the proposed UTS criteria. We fully
expect that the Agency will return to this issue in the future and question management practices of
wastes that pass the TC standard but fail the UTS, possibly leading to a reduction of the TC standards
now in force.  Before that is allowed to occur, we strongly urge the Agency to perform a more in-depth
review of both complex metals stabilization and HTMR capacity.
                                            Page 31

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Commenter:          Non-Ferrous Founder's Society
Comment Number:     72
Page Number:         2
HTMR Capacity: Even if HTMR was appropriate BDAT for Foundry TC waste, we conclude, as did
AFS, that D.A. has not determined whether there is available capacity of HTMR treatment to address the
amount of TC waste that will become subject to LDRIV UTS standards. We also support the AFS
contention that EPA arbitrarily determined the amount of TC lead waste that would increase as a result
of the LDR IV rulemaking. Clearly under RCRA Section 3004(m) Congress intended to require
utilization of available technology. EPA has not proven that HTMR is an appropriate treatment method
for the universe of Foundry TC wastes in the LDR IV proposed rule. This issue must be addressed by
EPA before the final rule is promulgated.
                                          Pas?e 32

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Commenter:           Department of Defense
Comment Number:     74
Page Number:         3
DOD routinely addresses lead-based paint issues.  It is unclear from the proposed rule if capacity for
lead-based paint wastes was considered in this rule.  DOD thus requests EPA to review if adequate
capacity (for example, high temperature metal recovery) exists for this waste stream.

Oftentimes, lead-based paint in debris and soils is not classified as a hazardous waste, and thus the land-
disposal restrictions are not applicable. However, when LDR would apply, lead-based paint should be
treated similar to other remediation wastes, and thus distinguished from as-generated waste. DOD thus
requests EPA to consider an exemption or variance for this remediation waste. DoD understands that an
exemption from LDR for lead-based paint wastes may be consistent with EPA's soon to be released rule
on architectural components.
                                            Page:

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Commenter:           Brush Wellman
Comment Number:     82
Page Number:         11
EPA suggests that stabilization is an alternative treatment technology that is available for use by-
generators of toxicity characteristic metal wastes to meet the universal treatment standards. Indeed,
EPA's background document evaluating available capacity for treating these wastes focuses solely on
stabilization capacity and does not present any information regarding commercial capacity for HTMR.
As discussed previously, Brush Wellman is not aware of a commercial HTMR process which is available
to treat its beryllium-containing toxicity characteristic metal wastes.  It is not reasonable for the Agency
to promulgate a BDAT-based standard based on one technology and expect compliance based on use of a
different technology which has not been thoroughly evaluated for performance and capacity.  Brush
Wellman is not aware of any data in the administrative record which  demonstrate that the universal
treatment standard for beryllium is attainable through stabilization. Without such data, Brush Wellman
must question how EPA could make a supportable determination that the beryllium standard is
achievable or even desirable with respect to toxicity characteristic metal wastes. For example, has EPA
considered how much additional stabilization agent may be necessary to treat beryllium to the required
level and how much additional landfill capacity will be necessary in order to accommodate the increased
volume of the treated waste? Finally, it is not clear from a review of the capacity background document
that EPA even considered the additional stabilization of toxicity characteristic metal wastes which may
be necessary in order to meet the universal treatment standards with respect to underlying hazardous
constituents such as beryllium.
                                            Page 34

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 Commenter:           Steel Manufacturers Association
 Comment Number:     83
 Page Number:         7-8
III.    THE AGENCY'S CAPACITY ANALYSIS FOR LDR PHASE IV IS INCOMPLETE AND
       SERIOUSLY FLAWED AS IT RELATES TO TC METAL WASTES

A.     Despite the Fact That EPA Has Identified HTMR as BOAT. HTMR is Never Mentioned in the
       Agency's Capacity Analysis for TC Metal Wastes

As discussed above, EPA inappropriately identified HTMR as the BOAT for all TC metal wastes that
exhibit the TC characteristic for lead or cadmium (even if a particular waste contained an unrecoverable
amount of metal). Under the proposed rule, large volumes of additional TC
metal wastes would have to be processed by HTMR. For this reason, EPA's Capacity Analysis," must
assess whether there is sufficient excess or unused HTMR capacity to handle the increased volume of TC
metal wastes that would have to be processed by HTMR technology. The fact that HTMR is not even
mentioned in the Capacity Analysis indicates an incomplete and seriously flawed Capacity Analysis for
LDR Phase IV. The American Foundrymen's Society has collected information related to the capacity of
HTMR facilities.  See Map and explanatory spreadsheet attached as Exhibit 2. Exhibit 2 illustrates the
limited capacity of HTMR facilities. Based on telephone conversations with representatives of the only
existing commercial HTMR facilities, there is not sufficient excess HTMR capacity commercially
available to process additional TC metal wastes subject to the proposed rule.

If the Agency had done a more competent capacity analysis for LDR Phase IV and determined that there
was inadequate capacity for HTMR, then the Agency would probably have become more aware of the
technical burdens imposed by LDR Phase IV on TC metal waste streams. These technical burdens
include treatment standards  derived from the inappropriate transfer of HTMR technology to all TC metal
wastes. Therefore, the Agency should have done a more thorough Capacity Analysis, recognized the
constraints of HTMR to process TC metal wastes with relatively low concentrations of recoverable
metals, and  then investigated stabilization technologies more  thoroughly. Instead, the Agency has
proposed treatment standards derived from HTMR that are not demonstrated for all steel making TC
metal wastes.
                                           Page 35

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Commenter:           Specialty Steel Industry of North America
Comment Number:     84
Page Number:         8
III.    THE AGENCY'S CAPACITY ANALYSIS FOR LDR PHASE IV IS INCOMPLETE AND
       SERIOUSLY FLAWED AS IT RELATES TO TC METAL WASTES

A.     Despite the Fact That EPA Has Identified HTMR as BOAT. HTMR is Never Mentioned
       in the Agency's Capacity Analysis for TC Metal Wastes

As discussed above, EPA inappropriately identified HTMR as the BOAT for all TC metal wastes that
exhibit the TC characteristic for lead or cadmium (even if a particular waste contained an unrecoverable
amount of metal). Under the proposed rule, large volumes of additional TC metal wastes would have to
be processed by HTMR. For this reason, EPA's Capacity Analysis must assess whether there is
sufficient excess or unused HTMR capacity to handle the increased volume of TC metal wastes that
would have to be processed by HTMR technology.  The fact that HTMR is not even mentioned in the
Capacity Analysis indicates an incomplete and seriously flawed Capacity Analysis for LDR Phase IV.
The American Foundrymen's Society has collected information related to the capacity of HTMR
facilities.  See Map and explanatory spreadsheet attached as Exhibit 2. Exhibit 2 illustrates the limited
capacity of HTMR facilities. Based on telephone conversations with representatives of the only existing
commercial HTMR facilities, there is not sufficient excess HTMR capacity commercially available to
process additional TC metal wastes subject to the proposed rule.

If the Agency had done a more competent capacity analysis for LDR Phase IV and determined that there
was inadequate capacity for HTMR, then the Agency would probably have become more aware of the
technical burdens imposed by LDR Phase IV on TC metal waste streams. These technical burdens
include treatment standards derived from the inappropriate transfer of HTMR technology to all TC metal
wastes. Therefore, the Agency should have done a more thorough Capacity Analysis, recognized the
constraints of HTMR to process TC metal wastes with relatively low concentrations of recoverable
metals, and then investigated stabilization technologies more  thoroughly.  Instead, the Agency has
proposed treatment standards derived from HTMR that are not demonstrated for all steelmaking TC
metal wastes.
                                           Pa°e 36

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 2.2.2   There Is Not Sufficient HTMR Capacity to Treat All TC Metal Wastes

        Similarly, eight commenters [TDJ (26); Battery Council International (45); Non-ferrous
 Founders Society (72); American Foundrymen's Society (77); Brush Wellman (82); Steel Manufacturers
 Association (83); Specialty Steel Industry of North America (84); INMETCO (96)] state that HTMR is
 not available for certain types of TC wastes. Therefore, HTMR should not be considered BDAT for such
 wastes.

 •      The TDJ Group believes that compliance with the proposed UTS standards for lead, cadmium, or
        chromium wastes requires either the use of stabilization technologies or the use of HTMR. The
        Agency's analysis of available capacity appears to be incomplete, since facility availability for
        some D008 waste streams is limited by the amounts of lead present in the waste. Many HTMR
        facilities are unwilling to receive materials with less than 15% total lead content unless a
        surcharge is paid.  Even then, it is not clear whether there will be adequate capacity to receive an
        additional 300,000 to 500,000 tons of low lead spent abrasive waste annually.  In addition,
        processes that concentrate the waste for HTMR maximize the potential risk to workers. (26:1-2)

 •      The TDJ Group also stated that it appears that most  of the D006, D007, and D008 wastes will not
        be amenable to HTMR, and it would appear that there is not enough capacity to provide this
        form of recovery. If the HTMR capacity is not present and if EPA has not adequately researched
        the efficacy of stabilization technologies, then EPA  is establishing a technology forcing standard
        which is a violation of RCRA 3004. (26:3-4)

 •      Battery Council International states that HTMR technology is not commercially available to treat
        nonwastewaters to the proposed treatment levels for lead and selenium. The kiln process is a
        patented and very expensive process that has not been built into any of the lead battery industry's
        operations. (45:3)

 •      Battery Council International states that secondary smelters currently are unable to achieve the
        standards for lead and selenium based on HTMR.  If smelters are forced to comply with these
        standards, many will be forced to shut down (because they will not be able to absorb the costs
        required to comply with the standards). Any loss in secondary smelting capacity could have a
        detrimental effect on lead-acid battery recycling. (45:11-12)

 •      The Non-Ferrous Foundrymen's Society states that the variability of foundry waste make HTMR
        an unacceptable treatment technology for these wastes. (72:2)

•      America Foundrymen's Society (AFS) believes that HTMR technology is only commercially
        available treatment for TC metal wastes with high metal content. HTMR is not a demonstrated
        or available technology for TC metal wastes with low metal content such as foundry wastes.
        AFS states that EPA must include HTMR in its capacity analysis.  Based on phone calls to
        HTMR facilities, however, AFS has concludes that there is not sufficient HTMR capacity to
        process the additional foundry wastes subject to the proposed rule. (77:5-9)

•       Brush Wellman states that  HTMR would not be able to meet the proposed treatment standards
        for beryllium in at least one of its waste streams. (82:10-11)
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•       The Steel Manufacturing Association and the Specialty Steel Industry of North America state
        that HTMR is not commercially available for all steel making wastes, especially those with low
        metal content.  There are no commercial facilities that will accept large volumes of wastes with
        low metal concentrations. Horsehead can only accept wastes with at least 5 percent zinc. (83:3-
        6; 84:4-5)

•       INMETCO states that it currently operates the only pyrometallurgical process designed to
        recover nickel and chromium from metal-bearing secondary materials. In  1994, INMETCO
        recycled 58,000 tons of material. (96:3,5-6)

Response

        The Agency agrees with commenters that HTMR may not be the most applicable technology for
certain wastes (e.g., foundry sands) containing metals in low concentrations. In such  cases, the Agency
recommends the use of other treatment technologies such as stabilization. EPA reiterates that the UTS
levels can be achieved by either HTMR or stabilization (or, for that matter, any other  applicable
treatment technology).  Therefore, the Agency is not establishing a technology forcing standard and thus
is not violating the requirements of RCRA 3004. Also, for the final Phase IV rule, the Agency has
revised the treatment standards for certain metals that are based on HTMR performance to  better reflect
the treatability of the "most difficult to treat" wastes. Based on the Agency's review of available data
and the new data submitted by the commenters, the Agency believes that adequate capacity exists to treat
the Phase IV wastes using either one of the technologies. See the Capacity Analysis Background
Document for additional information on available commercial treatment capacity for  stabilization and
HTMR.

       Notwithstanding this analysis, the Agency recognizes that some wastes could possess unique
properties that make them more difficult to treat than the wastes on which the standards are based.  In
such cases, the affected party may petition the Agency for a treatability variance as per 40 CFR 268.44.
For newly identified wastes (i.e., wastes that do not fail the EP test,  and, consequently, are  not part of the
Third Third LDR Rule), the affected party may request a capacity variance extension  per 40 CFR 268.5
on a case-by-case basis. Wastes regulated in the Third Third LDR Rule (i.e., wastes that fail the EP test)
are not eligible for capacity variances because the extension provided  in that rulemaking has already
expired.

Comments

       TDJ Group (26:1-2, 3-4)
       Battery Council International (45:3, 11-12)
       Non-Ferrous Foundrymen's Society (72:2)
       American Foundrymen's Society (77:5-9)
       Brush Wellman (82:10-11)
        Steel Manufacturers Association (83:3-6)
        Specialty Steel Industry of North America (84:4-5)
       INMETCO (96:3,5-6)
                                             Pase 38

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 Commenter:          TDJ Group
 Comment Number:    26
 Page Number:         1-2
 1)      Reliance on the availability and feasibility of HTMR

 At the present time, compliance with the proposed UTS standards for lead, cadmium or chromium wastes
 requires either the use of stabilization technologies or the use of high temperature metals recovery. The
 Agency analysis of available capacity appears to be somewhat incomplete, since facility availability for
 some D005 waste streams is limited  by the amounts of lead present in the waste. Leaded paint
 contaminated abrasive (produced in projects that sandblast structural steel to remove old paint and repair
 corrosion damage) may contain as little as 0.5% total lead (in the form of lead oxide) that will result in
 the classification of the waste as hazardous under TCLP. Many available high temperature metals
 recovery facilities are unwilling to receive materials with less than 15% total lead content unless a
 substantial surcharge is paid, and even then, it is not clear whether there will be  adequate capacity to
 receive an additional 300,000 to 500,000 tons of low lead spent abrasive waste annually. As a result,
 roughly 95% (by weight) of the D008 waste volume for the steel delating industry will be forced to use
 stabilization methods for disposal. The question of whether stabilization  processes can perform to the
 standards of the Agency  is an issue that will be addressed later in this document.

Processes that concentrate the waste  for HTMR in steel structures lead abatement projects (recycled steel
grit systems) allow for waste minimization by volume (with maximum toxicity), but they cause
substantial increases in the costs of lead paint removal while maximizing the risks to workers in
containment. In general, this method of paint removal may increase surface painting costs by as much as
 50% over other processes that do not concentrate the waste lead.  Most lead paint has less than 30% total
 lead, and the diluting effects of grit removal (producing paint chips, spent abrasive, and particles of
substrate) will reduce the fraction of lead in the waste to well below the 15% threshold. We estimate that
more than 65% of the waste from steel grit systems will fail to meet the minimum lead standard.
                                            Page 39

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Commenter:           TDJ Group
Comment Number:     26
Page Number:         3-4
5)     The proposed rulemaking appears to violate RCRA Section 3004 (M), since the proposed
       standards are based on technologies that are commercially available.

       Our analysis of the markets for D006, D007 and D008 waste management from the iron and steel
       industry and the steel maintenance industry suggest that 500,000 to 11000,000 tons of solid
       waste will be covered by these regulations. It appears clear that most of-these wastes will not be
       amenable to HTMR, and it would appear that there is not adequate capacity to provide this form
       of recovery. This appears to imply that these wastes will require stabilization be fore disposal.
       It is not clear that existing stabilization technologies will have the ability to meet these standards.
       The Agency has not used wastes representative of these industries to establish these standards.
       The Agency has assumed that there is sufficient capacity to receive these wastes for HTMR, but
       industry data suggests that these wastes are not amenable to these processes.  If HTMR capacity
       is not present and if the Agency has not adequately researched the efficacy of stabilization
       technologies, then the Agency is establishing a "technology forcing standard" that is a violation
       of RCRA 3 004 (M).
                                            Pa?e 40

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Commenter:           Battery Council International
Comment Number:     45
Page Number:          3
This is because, first, the HTMR technology used by EPA to determine the BOAT (known as Horsehead
Resource Development Company Inc.'s waelz kiln series process) is not "commercially available" to
treat D008 nonwastewaters to the proposed treatment levels for lead and selenium.  The waelz kiln
process is a patented and very expensive process that has not been built into any of the lead battery
industry's operations. Moreover, there is no facility operating a waelz kiln permitted to accept and store
D008 wastes. Thus, the HTMR cannot be considered an available technology under the Agency's BOAT
principles.
                                           Pa«e41

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Commenter:           Battery Council International
Comment Number:    45
Pa
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Commenter:           Non-Ferrous Foundrymen's Society
Comment Number:     72
Page Number:         2
Foundry Waste Variability. Effectiveness of HTMR on Foundry Wastes: As stated by AFS, nonferrous
foundry metallic waste constituents and concentrations are highly variable. Typically, the two major
types of non-ferrous foundry waste contain a significant amount of non-metallic constituents
differentiate foundry waste from K061 wastes which EPA used to establish High Temperature Metal
Recovery (HTMR) as the BOAT for TC wastes. As stated by AFS, the variability of foundry wastes may
make HTMR and [as in text] inappropriate treatment technology for this material. Therefore, HTMR is
not appropriate for the majority of Foundry TC Wastes.
                                           Page 43

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Commenter.           American Foundrymen's Society
Comment Number:     77
Page Number:         5
The proposed treatment standards for nonwastewaters under UTS would dramatically increase the
stringency of the existing treatment standards (by roughly an order of magnitude) for cadmium (from 1.0
to 0. 19 mg/L), for chromium (from 5.0 to 0.86 mg/L), for lead (from 5.0 to 0.37 mg/L), and for selenium
(from 1.0 to 0.16 mg/L). The proposed treatment standard for chromium under UTS was derived from
chemical stabilization of a limited number of chrome-bearing wastes. The more stringent treatment
standards for cadmium, lead, and selenium were solely derived from the application of High
Temperature Metal Recovery ("HTMR") technology to emission control dust/sludge from the primary
production of steel in electric arc furnaces ("K061 "). It is entirely inappropriate for EPA to assume that
the thousands of diverse and varied wastes that exhibit the TC characteristic for cadmium, lead, or
selenium will respond like K061 when subjected to HTMR.

Foundry sand differs from K061 in the following critical respects: (1) K061 typically has a much higher
concentration of recoverable heavy metals (primarily zinc), see Table attached as Exhibit 3; and (2)
K061 does not have an extremely high sand content in its waste matrix. EC dust from foundries also
differs from K061 because K061 typically has a much higher overall concentration of recoverable heavy
metals (primarily zinc), see Table attached as Exhibit 3.  Because of these critical differences, HTMR is
not available or practical for foundry wastes. For example,  HTMR on foundry sand would really be
vitrification because of the large amounts of sand. The low concentrations of heavy metals in the sand
are essentially rendered unrecoverable at extreme temperatures. EC dust has similar low and essentially
unrecoverable concentrations of heavy metals.
                                            Page 44

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 Commenter:          American Foundrymen's Society
 Comment Number:    77
 Page Number:        6
 Under LDR Phase IV, AFS member companies would have to achieve UTS levels through either HTMR
 or stabilization. HTMR is not commercially available for foundry wastes. Therefore, stabilization is the
 only practical alternative for foundry wastes.  Although stabilization is commercially available,
 stabilization technologies have not been demonstrated to treat foundry wastes to meet the proposed
 treatment standards in LDR Phase IV.  AFS is concerned that foundry wastes will be unable to meet the
 HTMR-derived UTS with stabilization technologies, the only technologies commercially available for
 foundry wastes.

 These limitations on stabilization technologies need to be resolved by the Agency before promulgating
 LDR Phase IV as a final rule.  Otherwise, foundries generating TC metal wastes will suffer significant
 economic harm by being forced to develop technologies to treat their wastes to meet inappropriate and
 overly stringent treatment standards proposed under LDR Phase IV.

 The Agency must assess the effects of stabilization technologies on foundry wastes before promulgating
 new treatment standards for these wastes. The information in the record is inadequate to make this
 assessment. Unless and until EPA develops adequate data demonstrating foundry and other diverse TC
 wastes can meet more stringent standards, the applicable treatment standards under UTS for chromium,
 cadmium, lead, and selenium should remain at the current and appropriate characteristic levels

                                       COMMENTS

 I.      IN DIRECT VIOLATION OF RCRA SECTION 3004(MX THE PROPOSED  LDR PHASE IV
       RULEMAKJNG WOULD INAPPROPRIATELY ESTABLISH A "TECHNOLOGY FORCING
       STANDARD" BECAUSE THE STANDARD IS NOT BASED ON A DEMONSTRATED AND
       COMMERCIALLY AVAILABLE TECHNOLOGY FOR FOUNDRY WASTES

A.     Establishing a "Technology Forcing Standard" Violates RCRA and the Stated  Intent of Congress

The Agency's authority to promulgate a treatment standard for hazardous wastes under the LDR program
derives from the Resource Conservation and Recovery Act ("RCRA") Section 3004(m). 42 U.S.C. §
6924(m). Section 3004(m) is part of the Hazardous and Solid Waste Amendments ("HSWA") of 1984.
Congress indicated in the legislative history accompanying HSWA that the intent of the statute is "to
require utilization of available technology" and HSWA does not promote a "process which contemplates
technology-forcing standards." Vol. 130 Cong. Rec.  S9178 (daily ed., July 25, 1984)  (emphasis added).
The Agency has previously recognized
                                          Page 45

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Commenter:           American Foundrymen's Society
Comment Number:     77
Page Number:         7
this limitation on treatment standards under the LDRs, stating that the requisite levels of treatment
should be the "best that has [sic] been demonstrated to be available.  This does not require a BAT-type
process as under the Clean Air or Clean Water Acts which contemplates technology-forcing standards.
The intent here is to require utilization of available technologies in lieu of continued land disposal
without prior treatment." 57 Fed. Reg. 37,194, 37,199 (Aug. 18, 1992).  Therefore, in the record for
LDR Phase IV, the Agency expressly recognizes that the intent of RCRA section 3004(m) is "to base
treatment standards on the best technologies commonly in use and thus reasonably available to any
generator." Final BDA T Background Document for Quality Assurance/Quality Control Procedures and
Methodology (October 23, 1991) at 3-1.

The Agency's approach to identifying the applicable technology for wastes involves a determination of
whether systems are "demonstrated" and are "available" commercially. Id. Therefore, for the Agency to
determine that a recovery or stabilization technology is BDAT for TC metal wastes, the recovery or
stabilization technology must be commercially "available" and "demonstrated" for all the different types
of wastes that will be subject to the technology.

B.      HTMR is Not a Commercially "Available" or "Demonstrated" Technology for Foundry  Wastes

HTMR is only commercially available and demonstrated technology for TC metal wast-s with a high
metal content. HTMR is not a "demonstrated," "available," or practical technology for commercial
treatment of TC metal wastes with  low metal content like foundry wastes. Even the Agency recognizes
that "recovery of metals from all wastes is not practical; at some level of metal concentration, recovery
efforts typically cease, and the remaining metals must be incorporated into a leach-resistant matrix for
safe disposal." Proposed BDAT Background Document for TC Metal Wastes D004-D011, July 26, 1995,
at 3-6.

The transfer of HTMR technology  for K061 (a hazardous waste with high metal cork-tent) to TC metal
wastes with low metal content like foundry wastes is totally inappropriate, For example, the Agency has
previously qualified the transfer of HTMR treatment results for high zinc content K061  to other metal
wastes by limiting transfer to circumstances where the "waste material contains high concentrations of
metals." Final BDAT Background Document (Addendum) For All Non-waste-water Forms ofK061 and
Alternative BDAT Treatment Standards For F006 and K062 Nonwastewaters (July 1992) at 4-1. In
addition, the LDR Phase IV rulemaking record indicates that the Agency only looked at HTMR treatment
of TC metal  wastes with high heavy metal content (i.e., untreated K061 with 12.9% zinc or higher) when
evaluating treated wastes for TCLP results.  Foundry wastes typically have considerably lower metal
content than K061. Many foundry wastes are TC metal wastes with essentially unrecoverable metal
concentrations, almost always having less than 5 percent recoverable zinc or lead in the EC dust and less
than 4 percent lead in the foundry sand.  See Table attached as Exhibit 3.
                                            Pa°e 46

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 Commenter:          American Foundrymen's Society
 Comment Number:    77
 Page Number:         8
 There is not a single national commercial HTMR facility that will accept large volumes of wastes with
 these low concentrations of heavy metals.  For example, the principal HTMR facility of the Horsehead
 Resource Development Company ("HRD" or "Horsehead") that recovers zinc from the vast majority of
 K061 generated in the United States can legally only process waste streams that contain at least 5 percent
 of zinc. Attached hereto as Exhibit 4 are the parameters established by the State of Pennsylvania for
 K.061 that HRD can legally accept at its principal HTMR facility in Palmerton,  Pennsylvania. Steel mills
 sending K061 to HRD must complete the attached Module I Form which specifies that HRD cannot
 legally accept secondary hazardous materials that contain  less than 5 percent zinc. See Exhibit 4.
 According to HRD executives, HRD also cannot accept most sandy soils contaminated with TC metals
 because such soils contain significant quantities of silica which has an adverse impact on the HTMR
 process.  Foundry sand would pose the same type of treatment problems as sandy soils for HRD and
 other HTMR facilities.  Because HTMR is unavailable for TC metal wastes with low concentrations of
 heavy metals and for waste mixtures containing sand (such as foundry sand), generators of these waste
 streams will be forced to use chemical stabilization.

 The Agency has explicitly recognized that HTMR residues for most TC metal wastes have leachate
 values that are much lower than comparable residues from stabilization. ProposedBDATBackground
 Document for TC Metal  Wastes D004-DOJ1, July 26,  1995, at 3 -5. In addition, the stabilization results
 presented in the record for this proposed rulemaking indicate that HTMR results are often lower than the
 stabilization results, especially for wastes that contain low levels of heavy metals. See Table A-4 of Id
 at A-  1 8 to A-27. Therefore, many of the TC metal wastes treated with stabilization technologies,
 including many foundry  wastes, would fail to meet the proposed HTMR-derived UTS levels. For
 example, the data presented in the rulemaking record indicate that eight out often sets of foundry-related
 waste samples treated by chemical stabilization would not meet the proposed treatment standards under
 LDR Phase IV. See, id, July 26, 1995, at A-23 to A-25. Therefore, the Agency must change the UTS
 levels for lead, cadmium, selenium, and chromium so stabilized foundry wastes can consistently meet
 UTS.  Otherwise, applying HTMR-derived treatment standards to foundry wastes that can only use
 stabilization technology will result in a "technology forcing standard." Establishing a "technology
 forcing standard" for foundries' TC metal wastes violates RCRA and the clear and expressed intent of
 Congress.

Although the Agency asserts that the proposed treatment standards for TC metal wastes are not
technology forcing, the Agency fails to provide adequate reasoning for its conclusion. In fact, the data
provided in the  rulemaking record support the opposite conclusion, that HTMR-derived UTS for TC
metal wastes will require technical development of treatment technologies for many TC metal wastes,
 (i.e. a technology forcing standard). See, id, July 26, 1995, at A-16 to A-27. In addition, many
 statements in the rulemaking record conflict with the Agency's unsubstantiated conclusion that the
proposed rulemaking is not technology forcing relative to TC metal wastes.  For example, the Agency
 states "the current characteristic standards and the
                                            Pa?e 47

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Commenter:           American Foundrymen's Society
Comment Number:     77
Page Number:         9
proposed LDR standards for nonwastewater TC metals are generally based on stabilization or thermal
recovery.  Due to the nature of these treatment technologies, adjustments to meet specific concentration
levels are usually not possible." Regulatory Impact Analysis of the Phase IV Land Disposal Restrictions
(Aug. 18, 1995) at ES-19 to ES-20. Because adjustments are not currently possible, foundries will have
to conduct extensive research and development ("R&D") on alternative waste treatment technologies to
assess whether they will ultimately be able to meet the proposed UTS for TC metal wastes.  Nonetheless,
significant investments in R&D would still not guarantee technological improvements to ultimately meet
the HTMR-derived treatment standards.

The Agency cavalierly suggests that in those circumstances where HTMR is not feasible because the
metal content in the waste is too low, that a generator should simply investigate alternative ways to
generate wastes that are amenable to recovery or to substitute materials that are suitable for recovery.
Proposed BOAT Background Document for TC Metal Wastes D004-D011, July 26, 1995, at 3-6.  The
Agency's recommendation to investigate alternative processes or substitute production materials would
require foundries and other industries to make fundamental modifications to their complex production
processes. This is not a realistic or reasonable option for foundries. As discussed above in the
background section, foundry sand is a critical essential and necessary raw material for the efficient
production of quality castings.
                                            Page 48

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 Commenter:           Brush Wellman
 Comment Number:     82
 Page Number:          10-11
 In anticipation of EPA's proposal, Brush Wellman began to make inquiries regarding commercially
 available HTMR processes for its waste streams.  Brush Wellman discussed with Horsehead Resource
 Development Company ("Horsehead") its ability to process Brush Wellman's beryllium-containing
 wastes. One such waste stream, a rotary filter sludge with lead concentrations above the toxicity
 characteristic level, is the hazardous waste with the highest beryllium content currently generated by
 Brush Wellman. This waste contains more than 14% beryllium. At the time of Brush Wellman's
 inquiry, Horsehead had a commercially available HTMR process in which it would treat the waste to
 recover copper values. However, according to Horsehead, it estimated that the beryllium content of the
 remaining slag would range between 7,800-8,700  ppm TCLP, well above the universal treatment
 standard for beryllium. A  different waste stream,  containing only 0.4% beryllium was anticipated to
 create a HTMR slag ranging between 100-120 ppm TCLP, also above the beryllium standard.  Brush
 Wellman has recently learned that Horsehead has  discontinued this process and currently will accept
 only K061 for HTMR processing. Thus, the only  commercial HTMR outlet for Brush Wellman's
 toxicity characteristic wastes is no longer available and, if it were, it would not be able to process Brush
 Wellman's waste so as to satisfy the universal treatment standard.

 EPA suggests that stabilization is an alternative treatment technology that is available for use by
 generators of toxicity characteristic metal wastes to meet the universal treatment standards. Indeed,
 EPA's background document evaluating available  capacity for treating these wastes focuses solely on
 stabilization capacity and does not present any information regarding commercial capacity for  HTMR.
As discussed previously, Brush Wellman is not aware of a commercial HTMR process which is available
to treat its beryllium-containing toxicity characteristic metal wastes.  It is not reasonable for the Agency
to promulgate a BDAT-based standard based on one technology and expect compliance based on use of a
different technology which has not been thoroughly evaluated for performance and capacity. Brush
Wellman is not aware of any data in the administrative record which demonstrate that the universal
treatment standard for beryllium is attainable through stabilization. Without such data, Brush Wellman
must question how EPA could make a supportable determination that the beryllium standard is
achievable or even desirable with respect to toxicity characteristic metal wastes. For example,  has EPA
considered how much additional stabilization agent may be necessary to treat beryllium to the required
level and how much additional landfill capacity will be necessary in order to accommodate the increased
volume of the treated waste? Finally, it is not clear from a review of the capacity background document
that EPA even considered the additional stabilization of toxicity characteristic metal wastes which may
be necessary in order to meet the universal treatment standards with respect to underlying hazardous
constituents such as beryllium.
                                            Pas?e 49

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Commenter:           Steel Manufacturers Association
Comment Number:     83
Page Number:         3-4
A.      Establishing a "Technology Forcing Standard" Violates RCRA and the Stated Intent of Congress

The Agency's authority to promulgate a treatment standard for hazardous wastes under the LDR program
derives from the Resource Conservation and Recovery Act ("RCRA") Section 3004(m). 42 U.S.C. §
6924(m).  Section 3004(m) is part of the Hazardous and Solid Waste Amendments ("HSWA") of 1984.
Congress indicated in the legislative history accompanying HSWA that the intent of the statute is "to
require utilization of available technology" and HSWA does not promote a "process which contemplates
technology-forcing standards." Vol. 130 Cong. Rec.  S9178 (daily ed., July 25, 1984) (emphasis added).
The Agency has previously recognized this limitation on treatment standards under the LDRS, stating
that the requisite levels of treatment should be the "best that has [sic] been demonstrated to be available.
This does not require a BAT-type process as under the Clean Air or Clean  Water Acts which
contemplates technology-forcing standards. The intent here is to require utilization of available
technologies in  lieu of continued land disposal without prior treatment." 57 Fed. Reg. 37,194, 37,199
(Aug. 18, 1992). Therefore, in the record for LDR Phase IV, the Agency expressly recognizes that the
intent of RCRA section 3004(m) is "to base treatment standards on the best technologies commonly in
use and thus reasonably available to any generator." Final BDAT Background Document for Quality
Assurance/Quality Control Procedures and Methodology (October 23, 1991) at 3-1.

The Agency's approach to identifying the applicable technology for wastes involves a determination of
whether systems are "demonstrated" and are "available" commercially. Id. Therefore, for the Agency to
determine that a recovery or stabilization technology is BDAT for TC metal wastes, the recovery or
stabilization technology must be commercially "available" and  "demonstrated" for all the different types
of wastes that will be subject to the technology.

B.     HTMR  is Not a Commercially "Available" or "Demonstrated" Technology for All  TC   Metal
       Wastes

HTMR is only commercially available and demonstrated technology for TC metal wastes with a high
metal content. HTMR is not a "demonstrated," "available," or practical technology for commercial
treatment of TC metal wastes with low metal content. Even the Agency recognizes that "recovery of
metals from all wastes is not practical; at some level of metal concentration, recovery efforts typically
cease, and the remaining metals must be incorporated into a leach-resistant matrix for safe disposal."
Proposed BDAT Background Document for TC Metal Wastes D004-DOH, July 26, 1995, at 3-6.
The transfer of HTMR technology for K061 (a hazardous waste with high metal content) to TC metal
wastes with low metal content is totally inappropriate. For example, the Agency has previously qualified
the  transfer of HTMR treatment results for high zinc content K061  to other metal wastes by limiting
transfer to circumstances where the "waste material contains high concentrations of metals." Final
BDAT Background Document (Addendum) For All Nonwastewater Forms  ofK.061 and Alternative BDAT
Treatment Standards For F006 and K062 Nonwastewaters (July 1992) at 4-1. In addition, the LDR
Phase IV rulemaking record indicates that the Agency only looked at HTMR treatment of TC metal
wastes with high heavy metal content (i.e., untreated K061 with 12.9% zinc or higher) when evaluating
treated wastes for TCLP results.  Many steel making wastes have considerably lower metal content than
K061.

                                            Page 50

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 Commenter:           Steel Manufacturers Association
 Comment Number:     83
 Page Number:         5
 There is not a single national commercial HTMR facility that will accept large volumes of wastes with
 these low concentrations of heavy metals. For example, the principal HTMR facility of the Horsehead
 Resource Development Company ("HRD" or "Horsehead") that recovers zinc from the vast majority of
 K.061 generated in the United States can legally only process waste streams that contain at least 5 percent
 of zinc.  Attached hereto as Exhibit 1 are the parameters established by the State of Pennsylvania for
 K061 that HRD can legally accept at its principal HTMR facility in Palmerton, Pennsylvania. Steel mills
 sending K061 to HRD must complete the attached Module 1 Form which specifies that HRD cannot
 legally accept secondary hazardous materials that contain less than 5 percent zinc. See Exhibit 1.
 According to HRD executives, HRD also cannot accept most sandy soils contaminated with TC metals
 because such soils contain significant quantities of silica which has an adverse impact on the HTMR
 process.  Because HTMR is unavailable for TC metal wastes with low concentrations of heavy metals
 and for waste mixtures containing sand, generators of these waste streams will be forced to use chemical
 stabilization.

 The Agency has explicitly recognized that HTMR residues for most TC metal wastes have leachate
 values that are much lower than comparable residues from stabilization. ProposedBDATBackground
 Document for TC Metal  Wastes D004-D011, July 26, 1995, at 3-5. In addition, the stabilization results
 presented in the record for this proposed rulemaking indicate that HTMR results are often lower than the
 stabilization results, especially for wastes that contain low levels of heavy metals.  See Table A4 of Id. at
 A- 1 8 to A-27. Many of the TC metal wastes treated with stabilization technologies would fail to meet
 the proposed HTMR-derived UTS levels. Therefore, the Agency must change the  UTS levels for lead,
 cadmium, and chromium so stabilized steel making wastes can consistently meet UTS. Otherwise,
 applying HTMR-derived treatment standards to steel making wastes that can only use stabilization
 technology will result in a  "technology forcing standard." Establishing a "technology forcing standard"
 for some steel making TC metal wastes violates RCRA and the clear and expressed intent of Congress.

 Although the Agency asserts that the proposed treatment standards for TC metal wastes are not
 technology forcing, the Agency fails to provide adequate reasoning for its conclusion. In fact, the data
 provided in the rulemaking record support the opposite conclusion, that HTMR-derived UTS for TC
 metal wastes will require technical development of treatment technologies for many TC metal wastes,
 (i.e. a technology forcing standard). See, id., July 26, 1995, at A-16 to A-27. In addition, many
 statements in the rulemaking record conflict with the Agency's unsubstantiated conclusion that the
 proposed rulemaking is not technology forcing relative to TC metal wastes.  For example, the Agency
 states "the current characteristic standards and the proposed LDR standards for nonwastewater TC metals
 are generally based on stabilization or thermal recovery.  Due to the nature of these treatment
 technologies, adjustments to meet specific concentration levels are usually not possible." Regulatory
Impact Analysis of the Phase IV Land Disposal Restrictions (Aug. 18, 1995) at ES-19 to ES-20.  Because
 adjustments are not currently possible, steel making companies will have to conduct extensive research
 and development ("R&D") on  alternative waste treatment technologies to assess whether they will
 ultimately be


                                            Pa
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Commenter:           Steel Manufacturers Association
Comment Number:     83
Page Number:         6
able to meet the proposed UTS for some TC metal wastes. Nonetheless, significant investments in R&D
would still not guarantee technological improvements to ultimately meet the HTMR-derived treatment
standards.

The Agency cavalierly suggests that in those circumstances where HTMR is not feasible because the
metal content in the waste is too low, that a generator should simply investigate alternative ways to
generate wastes that are amenable to recovery or to substitute materials that are suitable for recovery.
Proposed BOAT Background Document for TC Metal Wastes D004-D011, July 26, 1995, at 3-6.  The
Agency's recommendation to investigate alternative processes or substitute production materials would
require the steel making industry to make fundamental modifications to their complex production
processes. This is not realistic or reasonable.
                                            Page 52

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Commenter:           Specialty Steel Industry of North America
Comment Number:     84
Page Number:         4-5
B.      HTMR is Not a Commercially "Available" or "Demonstrated" Technology for all TC Metal
        Wastes

HTMR is only commercially available and demonstrated technology for TC metal wastes with a high
metal content. HTMR is not a "demonstrated," "available," or practical technology for commercial
treatment of TC metal wastes with low metal content. Even the Agency recognizes that "recovery of
metals from all wastes is not practical; at some level of metal concentration, recovery efforts typically
cease, and the remaining metals must be incorporated into a leach-resistant matrix for safe disposal."
ProposedBDAT Background Document for TC Metal Wastes D004-D011, July 26, 1995, at 3-6.

The transfer of HTMR technology for K061 (a hazardous waste with high metal content) to TC metal
wastes with low metal content is totally inappropriate. For example, the Agency has previously qualified
the transfer of HTMR treatment results for high zinc content K061 to other metal wastes by limiting
transfer to circumstances where the "waste material contains high concentrations of metals." Final BDAT
Background Document (Addendum) For All Nonwastewater Forms ofK061 and Alternative BDAT
Treatment Standards For F006 and K062 Nonwastewaters (July 1992) at 4-1.  In addition, the LDR
Phase IV rulemaking record indicates that the Agency only looked at HTMR treatment of TC metal
wastes with high heavy metal content (i.e., untreated K061  with 12.9% zinc or higher) when evaluating
treated wastes for TCLP results. Many steel making wastes have considerably lower metal content than
K061.

There is not a single national commercial HTMR facility that will accept large volumes of wastes with
these low concentrations of heavy metals. For example, the principal HTMR facility of the  Horsehead
Resource Development Company  ("HRD" or "Horsehead") that recovers zinc from the vast  majority of
K061 generated in the United States can legally only process waste streams that contain at least 5 percent
of zinc. Attached hereto as Exhibit I are the parameters established by the State of Pennsylvania for
K061 that HRD can legally accept at its principal HTMR facility in Palmerton, Pennsylvania. Steel mills
sending K061 to HRD must complete the attached Module  1 Form which specifies that HRD cannot
legally accept secondary hazardous materials that contain less than 5 percent zinc. See Exhibit 1.
According to HRD executives, HRD also cannot accept most sandy soils contaminated with TC metals
because such soils contain significant quantities of silica which has an adverse impact on the HTMR
process. Because HTMR is unavailable for TC metal wastes with low concentrations of heavy metals
and for waste mixtures containing sand, generators of these waste streams will be forced to use chemical
stabilization.
                                           Pase 53

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Commenter:          INMETCO
Comment Number:    96
Page Number:         3
As far as we are aware, INMETCO, located in Ellwood City, Pennsylvania, currently operates the only
pyrometallurgical process in the United States designed to recover nickel and chromium from metal-
bearing secondary materials. In brief, the process works as follows.
                                           Page 54

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Commenter:          INMETCO
Comment Number:    96
Page Number:        5-6
In 1994, INMETCO recycled more than 58,000 tons of secondary materials ~ including approximately
18,000 tons of K061; 10,600 tons of hazardous and nonhazardous filter cakes; 8,900 tons of swarf; 8,600
tons of mill scale; 2,800 tons of grindings; 2,200 tons of Ni-Cd batteries; and 1,700 tons of nickel and
chromium catalysts. From these materials, INMETCO was able to recover for direct reuse (in the case of
nickel, chromium, iron, manganese, and molybdenum) or for further processing at an outside HTMR
facility (in the case  of cadmium, lead, and zinc) approximately 98 percent of the nickel, 86 percent of the
chromium, 96 percent of the iron, 60 percent of the manganese, 92 percent of the molybdenum, 97
percent of the cadmium, 87 percent of the lead, and more than 99 percent of the zinc. By the second
quarter of 1996, INMETCO expects to be operating newly installed cadmium retort furnaces, so that it
will be able to recover the cadmium directly on site.
                                          Pa°e 55

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2.2.3   HTMR Capacity Exists to Treat TC Metal Wastes

       One commenter [Environmental Technologies, Inc (NODA1 1)] provided data on their annual
treatment capacity for TC metal wastes.

•      . Environmental Technologies International, Inc. (ETI) stated that the annual treatment capacity of
       ETI is 100,000 tons for its fixed units and 40,000 tons for its mobile treatment unit. ETI also
       stated that additional treatment units can be operational in less than 45 days. (NODA1 1:1)

Response

       EPA appreciates the data provided by the commenter and notes that the Agency has incorporated
the data into the Capacity Analysis Background Document.

Comments

•      Environmental Technologies International, Inc. (NODA 1 1:1)
                                           Pase 56

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Commenter:           Environmental Technologies International, Inc.
Comment Number:     NODA1 1
Page Number:         1
The Capacity Issues listed in item (4) found on page 21422 of the above referenced Proposed Rule cites
the request for a "capacity variance." The need for a variance is technologically and operationally
unfounded. The annual treatment capacity provided by ETI's fixed based unit is 100,000 tons.  The
annual treatment capacity offered by ETI's mobile treatment unit is 40,000 tons. Additional treatment
targets can be operational in less than 45 days.
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2.3    Combustion

2.3.1   There Is a Lack of Capacity at Off-Site Incineration Facilities

       One commenter [Beazer East, Inc. (NODA1 12)] stated that there is a lack of capacity at off-site
incineration facilities to treat F032 wastes.

•      Beazer East, Inc. stated the selection of incineration as the BOAT will bring cleanups of wood
       treating sites to a halt due to a lack of capacity at off-site incineration facilities, negative
       community reaction for on-site incineration facilities, and skyrocketing treatment costs. Beazer
       believes that, in practice, it remains to be seen whether those facilities will be able to accept the
       types of wastes generated at remediation sites. (NODA1 12:2,3)

Response

       The Agency notes that this issue has been addressed in the Phase IV mini rule for wood
preserving wastes (62 FR 25998, May 12, 1997) and refers the commenter to the "Wood Preserving
Waste: Final Rule - Comment Response Background Document" for additional information.

Comments

•      Beazer East, Inc. (NODA1 12:2,3)
                                            Page 58

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Commenter:           Beazer East, Inc.
Comment Number:    NODA1  12
Page Number:         2
Specifically, EPA discusses the Penta Task Force's and the American Wood Preserving Institute's
concerns that promulgation of concentration limits for dioxin/furan hazardous constituents in Hazardous
Waste F032 may discourage commercial incineration facilities from treating this waste. 61 Fed. Reg.
21420. For the record, Beazer also submitted comments which were critical of EPA's proposal to
establish dioxin/furan constituent concentration limits as LDRs for F032. It was and continues to be
Beazer's belief that selection of incineration as the Best Demonstrated Available Technology ("BOAT")
will bring cleanups of wood treating sites to a halt due to a lack of capacity at off-site incineration
facilities, negative community reaction for on-site incineration facilities and skyrocketing treatment
costs. Beazer recommended that EPA omit the dioxin/furan constituents from the LDR constituents of
concern for Hazardous Waste No. F032.  Beazer cited several reasons for not including dioxin/furan as
part of the F032 LDRS, to wit: (1) EPA's failure to scientifically demonstrate and support the risk from
low level exposure to dioxin/furans; (2) the problematic nature of the analytical method used for
detecting dioxin/furans; and (3) the non-availability of incineration capacity for treatment of large
quantities of soil and debris which may contain F032.
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Commenter:           Beazer East, Inc.
Comment Number:     NODA1 12
Page Number:         3
In conclusion, Beazer supports the establishment of the alternative treatment standard, as modified by
suboption 1 for F032 wastes. Notwithstanding this position, it is important to note that while the
incineration/combustion treatment standard may relieve some of the burden on the regulated community
to meet the concentration-based standards, it does not completely solve the waste disposal problem.
Although, the use of incineration and combustion for limited volumes of process wastestreams may be
possible under the proposed rule, incineration will never be cost-effective for large volumes of wastes,
especially remediation wastes. As stated in our previous comments, Beazer disagrees with EPA's
capacity estimates insofar as those estimates do not account for the approximate 85.3 MM tons of soil
impacted by previous wood treating operations which may require treatment under the proposed Phase
IV LDRS. Based on the existing incineration capacity to date, it would take over 200 years to treat this
quantity of material.  Moreover, most incinerators cannot manage large volumes of impacted media.
Although, in theory, the combustion alternative may broaden the scope of available facilities, in practice,
it remains to be seen whether those facilities will be able to accept the types of wastes generated at
remediation sites. As an ultimate solution, Beazer believes that, consistent with an approach suggested
under the proposed HWIR-Media Rule, 61 Fed. Reg. 18780, 18834, April 29,  1996, all media impacted
by hazardous wastes which are managed as part of a  remediation project should be exempt from Subtitle
C jurisdiction altogether, thereby effectively removing the artificial requirements of meeting LDRs for
media which are  managed as part of a cleanup.
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 2.3.2   Combustion of MGP Wastes Will Limit the Available Combustion Capacity

        One commenter [Utility Solid Wastes Activities Group (2SR 35)] stated that combustion of
 manufactured gas plant (MGP) wastes should not be required because the large amount of material will
 limit the available combustion capacity, making it unavailable for the treatment of highly concentrated
 organic wastes.

 •      Utility Solid Wastes Activities Group (USWAG) stated that there are limited numbers of
        hazardous waste combustion facilities in the country, and therefore requiring the use of
        combustion for the large volume MGP wastes would mean the transportation of large quantities
        of material for long distances creating more pollution and increasing the risk of accidents. In
        addition, requiring combustion for these materials, which often contain concentrations of
        hazardous constituents only marginally above the treatment standard, also may tie up the
        available combustion capacity making it unavailable for the treatment of more highly
        concentrated organic wastes. (2SR 35:10-11)

Response

        The Agency reiterates that combustion is not a required treatment technology for MGP wastes.
The Agency is not proposing any specific technology, but only a concentration-based standard that can
be achieved with any treatment technology. Nevertheless, the Agency realizes that it is a common
practice for utilities to co-burn MGP wastes when on-site coal-fired boilers are available. According to
the data submitted by the commenters, approximately 50 percent of the MGP remediation sites co-burn
MGP soils in on-site coal-fired boilers. However, in the final Phase IV rule, the Agency has
promulgated alternative treatment standards (10 times UTS or 90 percent reduction) for contaminated
soils. The Agency believes that these relaxed standards can  be achieved through various treatment
technologies besides combustion, and that adequate treatment capacity is available to handle these
contaminated soils.  See the Capacity Analysis Background Document for additional information on this
issue.

Comments

•      Utility Solid Wastes Activities Group (2SR 35:10-11)
                                            Pa°e61

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Commenter:           Utility Solid Wastes Activities Group
Comment Number:     2SR35
Page Number:         10-11
Combustion of these residues [remediation residues] consumes large amounts of fuel
and generates large quantities of combustion-related pollutants such as carbon dioxide and nitrogen
oxides.  Because the material being burned is essentially non-combustible, combustion of these wastes
also does little or nothing to reduce the volume of material that ultimately has to be landfilled and may,
in fact, increase the volume of material landfilled because of the generation of air pollution control
residues. In addition, there are a limited number of hazardous waste combustion facilities in the country,
and, therefore, requiring the use of combustion for these large volume wastes would mean the
transportation of large quantities of material for long distances creating more pollution and increasing the
risk of accident.  Requiring combustion for these materials, which often contain concentrations of
hazardous constituents only marginally above the treatment standard, also may tie up the available
combustion capacity making it unavailable for the treatment of more highly concentrated organic wastes.
                                            Pa°e 62

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2.3.3   Incineration Is Not an Appropriate Technology to Treat Contaminated Soil

        One commenter [National Mining Association (2SR 48)] stated that incineration cannot be
characterized as an available technology to treat contaminated soils.

•      The National Mining Association stated that incineration is not an appropriate technology for
        contaminated soils and therefore incineration cannot be properly characterized as
        "demonstrated" or "available" technology. (2SR 48:123-124)

Response

        The Agency notes that several commenters (such as USWAG (2SR 35)) have submitted
information that indicates that it is a common practice to co-burn contaminated soils high in organic
content in utility boilers. The Agency also agrees with the commenter that incineration is not an
appropriate technology for contaminated soils, especially those that are primarily inorganic. Since the
Agency is not promulgating a technology-based standard,  any appropriate treatment technology can be
used to meet the treatment standards.  In the final Phase IV rule, the Agency has promulgated alternative
treatment standards (10 times UTS or 90 percent reduction) for contaminated soils.  The Agency believes
that these relaxed standards can be achieved through various treatment technologies besides incineration,
and adequate treatment capacity is available to handle these contaminated soils.  See the Capacity
Analysis Background Document for additional information on this issue.

Comments

•      National Mining Association (2SR 48:123-124)
                                            Page 63

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Commenter:           National Mining Association
Comment Number:     2SR 48
Page Number:         123-124
EPA's general approach to the setting of treatment standards, which has been upheld by the courts, is to
base those standards on the Best Demonstrated Available Technology ("BDAT") for each waste,
provided such standards do not require treatment beyond the point where threats are minimized. If a
technology that has been designated BDAT is actually less protective than an alternative technology, it
clearly cannot be considered the "best." See 62 Fed. Reg, at 26,060. [FN 22: Indeed, at the beginning of
the LDR program, EPA explicitly stated that a technology should not be deemed "available" if it presents
greater total risk than land disposal. See 51 FR 40,572, 40,589 (November 7, 1986). Although the
Agency later decided to stop considering risk as part of its availability analysis, it maintained that risk
was an important consideration in identifying the "best" technology.  See 53 Fed. Reg. 31,138, 31,190-
91 (August 17, 1988).] Similarly, if a technology is generally not considered appropriate for a particular
waste (as in the case of incineration for wastewaters or contaminated soils), it cannot properly be
characterized as "demonstrated" or "available" for the waste.
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2.3.4   Combustion Will Not Provide Adequate Treatment Capacity for Mixed Radioactive Wastes

        One commenter [Molten Metal (49)] commented on EPA's reliance on traditional combustion
technologies for the treatment of mixed wastes, and suggested that EPA considers other treatment
technologies as BOAT for these wastes.

•       Molten Metal Technology stated that there is no reasonable basis for assuming that traditional
        combustion technologies will in the foreseeable future provide adequate or appropriate treatment
        capacity for mixed wastes.  Therefore, EPA should identify and designate as BDAT those new,
        innovative technologies which address and effectively minimize all the hazards presented by
        mixed waste, including radioactive hazards. (49:3-4)

Response

        The Agency agrees with the commenter that combustion capacity is not sufficient to treat Phase
IV mixed wastes.  However, the Agency notes that the proposed treatment standards are concentration-
based and do not require the  use of a specific technology. Therefore, treatment technologies other than
combustion could  be used to meet the treatment standards. Nevertheless, the Agency concluded that
sufficient alternative treatment capacity does not exist for Phase IV mixed wastes. The Agency
encourages the commenter to submit treatment performance and capacity data on their technology for
further evaluation  under the BDAT and Capacity Programs.

Comments

•      Molten Metal (49:3-4)
                                           Paee 65

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Commenter:           Molten Metal
Comment Number:    49
Page Number:         3-4
The traditional technologies that can, comply with the LDR standards (e.g., incineration and combustion)
are considered to be mature, demonstrated technologies that have been "available" for treatment of
hazardous wastes for many years.  Nevertheless, as a practical matter, these treatment technologies have
not been successfully applied on a large scale to mixed waste. As a result of the lack of suitable
treatment capacity, most mixed waste is currently in storage facilities awaiting treatment, which is not
permissible under RCRA.  This mixed waste storage dilemma was one of the significant drivers leading
to enactment of the Federal Facility Compliance Act, which obligates the Department of Energy to
develop mixed waste treatment plans and develop mixed waste treatment capacity.

MMT does not understand why EPA apparently continues to believe that traditional treatment
technologies such as incineration and combustion are appropriate or realistically will ever be available
for mixed waste. There are significant technical, political, and regulatory difficulties associated with
these technologies.  From a technical standpoint, they do not address or minimize radiological hazards.
In fact, they typically disperse radioactive constituents  into the air, and create a radioactive ash that
requires further treatment prior to disposal as a mixed waste. Also, combustion technologies are meeting
with increasing public opposition and EPA, state and local regulatory agencies are implementing
programs and policies designed to encourage the use of alternatives to combustion for treatment of
hazardous waste (see, e.g., EPA's "Hazardous Waste Combustion Strategy"). When attempts are made to
apply combustion technologies to mixed waste, these political and regulatory difficulties are likely to
intensify, and MMT does not believe that these technologies can be relied upon to provide any
significant treatment capacity for mixed waste.

There is no reasonable basis for assuming that' traditional combustion technologies will 'in the
foreseeable future provide adequate or appropriate treatment capacity for mixed waste. Thus, the
continuing practice of granting capacity variances amounts to little more than a holding action which will
not allow time for mixed waste combustion capacity to develop, but rather just delays the time when it
will become obvious that, these wastes must be treated  using new, innovative technologies that
specifically address and minimize  all the hazards presented by mixed waste, including radioactive
hazards. MMT therefore urges EPA to reconsider its practice of assuming that LDR requirements for
mixed waste can be achieved by using traditional hazardous waste treatment technologies to treat the
hazardous portion of mixed waste, and instead identify and designate as BDAT those technologies which
address and effectively minimize all the hazards presented by mixed waste, including radioactive
hazards.
                                             Page 66

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2.4     Other Issues

2.4.1    Sufficient Landfill Capacity Might Not Exist to Accommodate Affected Wastes

        One commenter [Brush Wellman (82)] notes that the proposed treatment standards will not only
require additional treatment, but may also require additional disposal capacity.

•       Brush Wellman questions whether there would be enough landfill capacity to accommodate the
        increased volume of treated waste. (82:11)

Response

        The Agency does not believe that substantially more landfill capacity is needed.  Affected wastes
are presently being land disposed and little, if any, increases in landfill capacity are expected. The
Agency also notes that the commenter did not provide any data to support the comment. The Agency
refers the commenter to EPA's Capacity Assurance Plan (CAP) Report for additional information on
landfill capacity.

Comments

•      Brush Wellman (82:11)
                                           Pa°e 67

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Commenter:           Brush Wellman
Comment Number:     82
Page Number:         11
Brush Wellman is not aware of any data in the administrative record which demonstrate that the
universal treatment standard for beryllium is attainable through stabilization. Without such data, Brush
Wellman must question how EPA could make a supportable determination that the beryllium standard is
achievable or even desirable with respect to toxicity characteristic metal wastes. For example, has EPA
considered how much additional stabilization agent may be necessary to treat beryllium to the required
level and how much additional landfill capacity will be necessary in order to accommodate the increased
volume of the treated waste?  Finally, it is not clear from a review of the capacity background document
that EPA even considered the additional stabilization of toxicity characteristic metal wastes which may
be necessary in order to meet the universal treatment standards with respect to underlying hazardous
constituents such as beryllium.
                                            Page 68

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2.4.2  EPA Has Not Addressed Wether Sufficient Available Combustion Capacity Would Remain
       to Treat the Volume of F024 and F032 Currently Being Generated

       One commenter [Dow Chemical Company (NODA1 9)] stated that EPA might have
underestimated the available combustion capacity to treat F024 and F032 wastes.

•      Dow Chemical Company stated that EPA has not addressed whether sufficient available capacity
       would remain which is licensed to treat the volume of F024 and F032 currently generated. Dow
       alone currently generates over 50,000 tons per year of F024 at its U.S. facilities. Implementation
       of the proposed rule (Sub-options 2 or 3) would require a significant portion of that waste
       volume to be managed off-site in commercial units.  According to Dow Chemical Company, EPA
       must analyze the US wide generation of potentially impacted waste codes and determine how
       much of the available treatment capacity would be required after the proposed rule goes into
       effect. (NODA1 9:3)

Response

       The Agency notes that the treatment standards for these wastes were finalized in the Wood
Preserving Waste - Final Rule. Nevertheless, EPA appreciates the waste volume data provided by the
commenter.  The Agency has used these data to refine available commercial combustion capacity
estimates for wastes containing organic UHCs.

Comments

•      Dow Chemical Company (NODA1 9:3)
                                          Pa2e 69

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Commenter:           Dow Chemical Company
Comment Number:     NODA1 9
Page Number:          3
In considering the additional limitations described in Suboptions 2 and 3, EPA has not addressed whether
sufficient available capacity would remain which is licensed to treat the volume of F024 and F032
currently generated.  Dow alone currently generates over 50,000 tons per year of F024 at its U.S.
facilities. Implementation of Suboptions 2 or 3 would require a significant portion of that waste volume
to be managed off-site in commercial units.  Before proceeding, EPA must analyze the U.S. wide
generation of the potentially impacted waste codes considering how much available treatment capacity
would be available after such requirements would go into effect.
                                           Page 70

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2.4.3  Treatment Standards

2.4.3a Treatment Standards Should Be Revised

       Several commenters raised issues regarding soil contaminated with TC metals. In the original
proposed rule capacity analysis, EPA did not specifically address soil contaminated with TC metal waste
because EPA did not expect such soil to be classified as newly identified.  One commenter [DOE Run
Company (70)] stated that some soil treatment technologies will not be able to meet the proposed
treatment standards.

•      The DOE Run Company plans to construct a soil washing and leaching treatment system.  The
       proposed treatment standards may not be achievable with this process, especially for lead. These
       soils would have to be stabilized. (70:2,3-4)

       Fifteen commenters [National Mining Association (NODA1 5); Silver Council (NODA1 7);
DuPont Engineering (NODA1 16); Chemical Products (2SR 3); INMETCO (2SR 10); Chemical
Manufacturers Association (2SR 16); Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry
of North America (2SR 18); Eastman Kodak Company (2SR 22); Department of Energy (2SR 23); Lead
Industries Association, Inc. (2SR 24); RSR Corporation (2SR 25); Laidlaw Environmental Services (2SR
28); Chemical Products Corporation (2SR 30); Savage Zinc, Inc. (2SR 32); American Iron and Steel
Institute (2SR 39)] stated that the treatment standards for various metals should be revised.

•      The National Mining Association (NMA) stated that the proposed UTS for silver is overly
       stringent. According to NMA, the UTS for silver should be set at the characteristic level (5.0
       mg/1) for all wastes subject to the UTS. (NODA1 5:3)

•      The Silver Council supports the objective of removing silver form the TC list.  It also
       recommends that until the  EPA completes its evaluation of such action, the Agency should revise
       the  UTS for silver upward to the TC regulatory level of 5.0 mg/1. (NODA1 7:2)

•      DuPont Engineering suggested that EPA retains the TC LDR land ban at the TC level of 5.0 mg/1
       and further that the Agency increase the UTS to that level until such time as it has a basis for
       regulating silver at a lower level.  (NODA1 16:1)

•      Chemical Products Corporation supports the upward revision of the UTS for barium but believes
       that a further upward revision is required.  The existing UTS level as well as the RCRA TC level
       for barium are far more stringent than necessary and should be revised dramatically upward to
       reflect sound science.  The existing regulatory limits for barium are based on supposition and
       incomplete toxicity information.  (2SR 3:1,2)

•      INMETCO believes that the proposed UTS/BDAT standards for antimony, barium, cadmium,
       chromium, lead ,  nickel, selenium, thallium, vanadium, and zinc are adequately supported and
       calculated appropriately. The proposed standard for silver, however, is too low and should be
       adjusted upward to a level  of 0.19 mg/L. (2SR 10:2)
                                           Pa
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Chemical Manufacturers Association (CMA) believes the LDR treatment standard for silver
should not be lowered because silver's low toxicity warrants its removal from the TC list. The
D011 silver LDR standard already minimizes threats, so there is no need to reduce it further.
(2SR 16:1,2)

Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry of North America stated that
EPA's proposal to reduce the UTS/BDAT level for silver is inconsistent with the Agency's
current plan to either raise the characteristic level for silver or no longer regulate silver as a
toxicity characteristic metal because it does not present a significant health risk.  EPA should
either raise the UTS level for silver to the current TC level or retain the current level.  (2SR 18:2)

Eastman Kodak Company stated the D011 silver LDR standard already minimizes risk, so there
is no need to reduce it further. The proposed D011 LDR BOAT technology based treatment
standards exceed the point at which there could be a  threat to human health and the environment
from any of the silver-bearing wastes. The LDR treatment standard for silver should not be
lowered because silver's low toxicity warrants its removal from the TC list. (NODA1  4:1; 2SR
22:1-2,3)

The Department of Energy (DOE) supports EPA's revised proposal to establish 5.7 mg/1 as
measured by TCLP as both the LDR treatment standard for DO 10 nonwastewaters and the UTS
for selenium in nonwastewaters. Supports the revised standard  for selenium and agrees that it
would be inappropriate for selenium to be considered as a UHC.  (2SR 23:4-5)

Lead Industries Association, Inc. stated the proposed lead UTS lacks a reasoned explanation and
conflicts with EPA's finding in the Hazardous Waste Identification Rule Proceeding.  Stated that
EPA has not made the necessary findings to show that the existing lead treatment standards are
inadequate to minimize threats to human health and the environment and therefore, should
withdraw the proposed standards. (2SR 24:2-3)

RSR Corporation cannot support EPA's proposed treatment standards for lead, antimony, silver,
beryllium, and thallium because EPA has not demonstrated that existing commercial
technologies are capable of achieving the proposed standards or that technologies are  otherwise
available. (2SR25:1)

Laidlaw Environmental Services expressed concern over whether EPA can justify the proposed
less stringent standards for nine metals (antimony, barium, beryllium, cadmium, lead, nickel,
selenium, thallium, and vanadium), since current stabilization technology can achieve lower
treatment levels. (2SR28:1)

Chemical Products Corporation strongly disagreed with the regulatory limit for barium in
wastewaters, specifically for D005, F039, and K088.  The proposed regulatory limit is
unreasonably  low and requests that it be set at 60 ppm of soluble barium. (2SR 30:1,2)

Savage Zinc, Inc. urged EPA to remove zinc from the UTS list. (2SR 32:1)

American Iron and Steel Institute believes that EPA must not simply revise the UTS for zinc, but
must do away with that standard in its entirety.  (2SR 39:1-2)


                                     Page 72

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        Three commenters [Coastal (12); Interstate Natural Gas Association of America (40); American
 Gas Association (86)] discuss the treatment standards for mercury-contaminated soils.

 •      Coastal states that EPA has proposed a reduction of the TCLP level for D009 to 0.025 mg/1.
        Coastal cites a GUI study which states that the lowest achievable level of TCLP for D009 is
        0.035 mg/1 after a chemical leaching process was applied to the soils. This result was achieved
        on soil with the optimum characteristics for chemical leaching. Therefore, if the new standard is
        implemented, the chemical leaching process would be eliminated as a treatment option. (12:1)

 •      INGAA sees the  new treatment standards as extremely burdensome to the  extent that they will
        increase costs for waste treatment and disposal without an equivalent reduction to health risk. As
        a result of increased costs, industry may be less likely to voluntarily undertake mercury
        remediation projects. The new treatment level of 0.025 mg/1 also raises concern regarding the
        capacity of appropriate disposal facilities. In addition, EPA has underestimated the number of
        industries that will be affected by this rule. (40:1 -2)

 •      The American Gas Association questions whether there are reasonable treatment technologies
        for mercury contaminated soils that may be found at gas metering stations. Thermal treatment or
        roasting is the only technology that can meet the proposed treatment standards. Due to the
        remote location and quantity of sites, the cost of removing the soils and shipping them to a
        central treatment station would be exceedingly expensive. (86:3-4)

Response

        To compile additional evidence regarding the  treatability of TC metal wastes to the UTS, the
Agency conducted site visits to several commercial hazardous waste treatment facilities and collected
additional stabilization and HTMR treatment performance data that better represent the diversity of metal
wastes. The performance data (based on grab samples) constitute a wide range of metal-bearing wastes
(both listed and characteristic) that the Agency believes represents the most difficult to treat metal-
bearing wastes.

        EPA then calculated the treatment standards from both stabilization and HTMR data and selected
the highest standard (less stringent) for each metal to establish the UTS. EPA selected the less stringent
standards to allow for process variability and detection limit difficulties. Based on these data, EPA
revised the treatment standards for certain TC metals and re-proposed the standards in the second
supplemental proposal. Further, the Agency reviewed additional data submitted by the commenters in
response to the second supplemental proposal.  EPA determined that the proposed standards for  certain
metals (e.g., antimony,  beryllium) do not represent BDAT with a "most difficult to treat" waste and,
therefore, revised the treatment standards for such metals. EPA believes that the revised UTS levels are
achievable with grab sampling by both stabilization and HTMR technologies. It is also noted that EPA  is
not establishing a technology forcing standard and therefore, any appropriate treatment technology can
be used to meet the treatment standard. (See the BDAT Background Document for additional
information on the development of the Phase IV treatment standards.)

        With respect to the comments regarding contaminated soils, the Agency recognizes the unique
issues associated with remediation waste including hazardous contaminated soil,  and therefore believes
that it is appropriate to establish alternative less-stringent LDR treatment standards for hazardous soil, so


                                            Page 73

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long as the alternative standards encourage implementation of more aggressive or permanent remedies
and result in "substantial" reductions and "minimize threats" contemplated by RCRA section 3004(m).
(See 61 FR 18808, April 29, 1996, for additional discussion on this issue.) Therefore, in the final Phase
IV rule, the Agency has promulgated alternative treatment standards for hazardous soil, which require
that the concentrations of constituents subject to treatment be reduced by 90 percent with treatment for
any given constituent capped at ten times the UTS. The data reviewed by the Agency, including
remediation case studies, indicate that these standards can be readily achieved through existing
commercial technologies and, therefore, is not granting a national capacity variance.  (See the BDAT and
Capacity Analysis Background Documents for additional information)

Comments

       DOE Run Company (70:2, 3-4)
       National Mining Association (NODA1 5:3)
       Silver Council (NODA1 7:2)
       DuPont Engineering (NODA1  16:1)
       Chemical Products (2SR 3:1,2)
       INMETCO(2SR10:2)
       Chemical Manufacturers Association (2SR 16:1,2)
       Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry of North America (2SR 18:2)
       Eastman Kodak Company (NODA1 4:1)
       Eastman Kodak Company (2SR 22:1-2,3)
       Department of Energy (2SR  23:4-5)
       Lead Industries Association, Inc. (2SR 24:2-3)
       RSR Corporation (2SR 25:1)
       Laidlaw Environmental Services (2SR 28:1)
       Chemical Products Corporation (2SR 30:1,2)
       Savage Zinc, Inc. (2SR 32:1)
       American Iron and Steel Institute (2SR 39:1-2)
       Coastal (12:1)
       Interstate Natural Gas Association of America (40:1-2)
       American Gas Association (86:3-4)
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Commenter:           DOE Run Company
Comment Number:     70
Page Number:         2
The soil washing and leaching process proposed for Doe Run's Buick Facility will mechanically separate
soil fractions. Lead and other metals will be chemically leached from each of the separated fractions,
thereby meeting the release standards (KC., acceptable standards for release of soil for other uses)
prescribed in the RCRA Part B permit and other criteria imposed by Missouri regulatory agencies for the
appropriate use  of the cleaned soil, so that the resultant soil is de-regulated.  The "concentrate," which
consists of the metals removed from the process, will be processed through Doe Run's secondary smelter
located at the same facility.
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Commenter:          DOE Run Company
Comment Number:    70
Page Number:         3-4
In effect, the concept behind the proposed soil washing process is to remove and recover the metals, so
that stabilization is not required. If the Phase IV LDR proposal is applied to this process, however,
stabilization would be required even after the removal and recovery is completed. Thus, as applied to the
proposed soil washing process, Doe Run views the proposal to set LDR treatment standards at UTS
levels as counterproductive and unnecessary to protect human health and the environment.
                                          Page 76

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Commenter:           National Mining Association
Comment Number:     NODA1 5
Page Number:         3
EPA Should Modify The UTS For Silver For All Wastes

Finally, NMA supports EPA's proposal to modify the UTS for silver which, as discussed in NMA's April
24, 1996 comments on the Supplemental Proposal, is overly stringent. 61 Fed. Reg. at 21,420. At a
minimum, the UTS for silver should be set at the characteristic level (5.0 mg/1) for aH wastes subject to
the UTS. Such a revised treatment standard should not be restricted in applicability only to DO 11  wastes,
as EPA has acknowledged that silver does not have any adverse effects on human health. 60 Fed.  Reg.
66,344, 66,351 (Dec. 21, 1995).' As for environmental risks, the Agency has determined silver does not
pose an unacceptable risk to the environment at the levels far in excess of 5.0 mg/1.  See, e.g.. 60 Fed.
Reg. at 66,466. Thus it makes no sense, and is in fact contrary to law, to require hazardous wastes be
treated to reduce  silver concentrations below 5.0 mg/1 ~ a level which clearly meets the "minimize
threat" mandate of RCRA § 3004(m)(l).
                                           Pa°e 77

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Commenter:           Silver Council
Comment Number:     NODA1 7
Page Number:         2
In summary, The Silver Council urges EPA to finalize the first option set forth in the May, 10 notice
concerning the treatment standard for silver-bearing wastes.  Specifically, The Silver Council supports
the upward revision of the Universal Treatment Standard for silver to a higher level, most preferably the
TC regulatory level of 5.0 mg/L. Promulgation of this option will subject all silver-bearing wastes to the
same constituent-specific treatment standard, simplifying compliance and administrative requirements
for generators and the Agency.  In addition, promulgating the UTS level for silver at the TC regulatory
level of 5.0 mg/L is a practical approach for dealing with D011 wastes while the Agency continues its
review of the removal of silver from the TC list.
                                            Page 78

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Commenter:           DuPont Engineering
Comment Number:     NODA1 16
Page Number:         1
As the Agency notes in the NODA discussion of silver, there remain questions as to the hazards posed by
silver and whether the hazards are chemical species specific or generally attributable to all silver
compounds. The Agency further notes that the risk to human health from silver is low, and the risks
posed by contaminants in downgradient receptors (typically drinking water sources) are the basis of the
land disposal restriction program. For those reasons, it is overly burdensome to ascribe a high hazard to
silver in a leachate context and therefore regulate it for land ban purposes at the existing UTS level.
DuPont therefore suggests that the Agency retain the TC LDR land ban at the TC level of 5 mg/1 and
further that the Agency increase the UTS to that level until such time as it has a basis for regulating
silver at a lower level.
                                           Page 79

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Commenter:          Chemical Products
Comment Number:    2SR 3
Page Number:         1
In the supplemental proposed rule (FRL 5816-6) published in the Federal Register of May 12,1997 (62
FR 26041), EPA is proposing to increase the Universal Treatment Standard (UTS) for barium (Waste
Code D005) from 7.6 mg/j to 21 mg/I by the TCLP test. Chemical Products Corporation (CPC) supports
this upward revision but believes that a further upward revision is required. CPC will herein submit
information which demonstrates that this proposed UTS level, as well as the existing RCRA TC level for
barium of I 00 mg/I, are far more stringent than necessary and should be revised dramatically upward to
reflect sound science.
                                          Pas?e 80

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Commenter:           Chemical Products
Comment Number:     2SR 3
Page Number:         2
In summary, CPC believes that the existing regulatory limits for barium are based on supposition and
incomplete toxicity information, and that careful consideration of the most recent data will lead EPA to
substantially increase these regulatory limits, including the proposed Universal Treatment Standard.
This should be fully supported by the IRIS file on barium as soon as the on-going review is completed.

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Commenter:          INMETCO
Comment Number:    2SR 10
Page Number:         2
In brief, based on the data made available thus far, we believe the proposed revisions of the UTS/BDAT
standards for antimony, barium, cadmium, chromium, lead, nickel, selenium, thallium, vanadium, and
zinc are adequately supported and calculated appropriately. The proposed standard for silver, however, is
too low. Based on the grab sample data submitted with these Comments, it should be adjusted upward to
a level of 0.19 mg/L.
                                          Pa°e 82

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Commenter:          Chemical Manufacturers Association
Comment Number:    2SR 16
Page Number:        1
III.    THE LDR TREATMENT STANDARD FOR SILVER SHOULD NOT BE LOWERED
       BECAUSE SILVER'S LOW TOXICITY WARRANTS IT'S REMOVAL FROM THE TC
       LIST

CMA urges EPA not to lower the treatment levels for silver any further. As EPA explained in the
preamble to this rule, EPA's authority to set technology-based land disposal treatment levels is limited.
62 F.R. 26058/3. Under RCRA § 3004(m), EPA has the duty to set land disposal restriction treatment
standards which minimize threats to human health and the environment. In court cases upholding EPA's
authority to establish technology-based treatment levels, the D.C. Circuit Court has limited EPA's
authority so that it cannot set treatment levels beyond the point where at which their is no threat to
human health or the environment." Hazardous Waste Treatment Council v. EPA, 886 F.2d 355,362 (D.C.
Cir. 1989).  While EPA acknowledges this limitation, it has stated that establishing the "no threat" level
is a "formidable and controversial" task. 58 FR 48095 (September 14, 1993).

In interpreting this court case and others, EPA has stated that  it need not require every conceivable threat
to be eliminated. Rather, EPA believes that it is not required to set ever more stringent treatment levels
when it can show that remaining threats are "insignificant." 60 F.R. 66344, 66382. In our view,  EPA has
ample information to make the determination that any additional lowering of the treatment standard is
unnecessary because silver is toxic only in concentrations that are much higher than the treatment
standard and natural attenuation reduces its threat to human health and the environment even further.
                                          Page 83

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Commenter:          Chemical Manufacturers Association
Comment Number:     2SR 16
Page Number:         2
The proposed D011 LDR BDAT technology based treatment standards exceed the point at which there
could be a threat to human health or the environment from any of the silver-bearing wastes. Indeed, the
current D011 silver Toxicity Characteristic (TC) waste LDR treatment standard of 5 mg/1 adequately
minimizes risk to human health and the environment. Thus, there is no justification to lower the LDR
standard to match the Universal Treatment Standards (UTS).
                                          Page 84

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Commenter:           Collier, Shannon, Rill & Scott, PLLC for Specialty Steel
                      Industry of North America
Comment Number:     2SR 18
Page Number:          2
11.    PROPOSED STANDARD FOR SILVER

EPA's proposal to reduce the UTS/BDAT level for silver is inconsistent with the Agency's current plans
either to raise the characteristic level for silver or no longer regulate silver as a toxicity characteristic
("TC") metal because it does not present a significant health risk. See Inside EPA, July 11, 1997, p. 11.
EPA should either raise the UTS level for silver to the current TC level (5.0 mg/1) or retain the current
level of 0.3 mg/1.
                                          Page 85

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Commenter:          Eastman Kodak Company
Comment Number:     NODA1 4
Page Number:         1
The LDR Treatment Standard for Silver Should Not Be Lowered Because Silver's Low Toxicitv
Does Not Warrant it.
The current D011 silver TC waste LDR treatment standard of 5 mg/L adequately minimizes threats to
human health and the environment. There is no credible scientific justification for lowering the LDR
standard to 0.30 mg/L silver (nonwastewaters) and 0.43 mg/L silver (wastewaters). It is more
appropriate to complete the silver TC review and remove silver from the TC list. If silver is not removed
from the TC list at this time, the D011 standard should be kept at 5 mg/L and the UTS should be raised to
the same 5 mg/L level.
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Commenter:          Eastman Kodak Company
Comment Number:     2SR 22
Page Number:         1-2
LDR standards are designed to minimize threat. The current D011 silver Toxicity Characteristic (TC)
waste LDR treatment standard of 5 mg/1 adequately minimizes risk to human health and the
environment, so there is no justification to lower the LDR standard to match the Universal Treatment
Standards (UTS). The proposed D011  LDR BDAT technology based treatment standards exceed the
point at which there could be a threat to human health or the environment from any of the silver-bearing
wastes.
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Commenter:           Eastman Kodak Company
Comment Number:     2SR 22
Page Number:         3
Kodak and the Silver Council have provided toxicological and environmental fate evidence that is
adequate for the removal of silver from the TC list. EPA's Office of Solid Waste has identified the
removal of silver from the TC list as one of its projects for regulatory reform. In the spirit of regulatory
reform, EPA should not promulgate any technology based LDR treatment standards for silver that are
more stringent than the current D011 levels until EPA has acted on its own determination that silver does
not pose a potential for adverse health or environmental effects and therefore does not need to be a TC
waste.
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Commenter:           Department of Energy
Comment Number:     2SR 23
Page Number:         4-5
DOE supports EPA's revised proposal to establish 5.7 mg/1 as measured by the Toxicity Characteristic
Leaching Procedure (TCLP) as both the LDR treatment standard for DO 10 nonwastewaters and the UTS
for selenium in nonwastewaters.  DOE also agrees that it would be inappropriate for selenium to be
considered an underlying hazardous constituent (UHC) if the concentration defining it as such is greater
than the concentration defining the toxicity characteristic for selenium. DOE notes, however, that while
EPA is proposing corresponding changes to the tables of treatment standards and UTS in 40 CFR Part
268, no change to the definition of UHC [40 CFR 268.2(1)] is proposed. Notwithstanding, EPA has
proposed that the selenium entry on the table of universal treatment standards [40 CFR 268.48(a)] be
marked with footnote 5 (see p. 26082).  In the existing UTS table, the entries for vanadium, zinc and
fluoride are already marked with footnote 5. Footnote 5 states, "These constituents are not 'underlying
hazardous constituents' in characteristic wastes, according to the definition at §268.2(1)." Consistently,
the existing 40 CFR 268.2(1) defines an UHC as follows:

       [A]ny constituent listed in §268.48, Table UTS—Universal Treatment Standards, except
       fluoride, vanadium, and zinc, which can reasonably be expected to be present at the point of
       generation of the hazardous waste, at a concentration above the constituent-specific UTS
       treatment standards.

Therefore, for completeness, if the final rule adopts 5.7 mg/1 TCLP as the UTS for selenium, DOE
suggests that EPA modify the regulatory definition of UHC in 40 CFR 268.2(1) to exclude selenium as
follows [redline text indicates addition]:

       [A]ny constituent listed in §268.48, Table UTS—Universal Treatment Standards, except
       fluoride, selenium, vanadium, and zinc, which can  reasonably be expected to be present at the
       point of generation of the hazardous waste, at a concentration above the constituent-specific UTS
       treatment standards.
                                           Pa?e 89

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Commenter:           Lead Industries Association, Inc.
Comment Number:     2SR 24
Page Number:         2-3
In its recent Hazardous Waste Identification Rule (HWIR) proposal, EPA determined that any threats to
human health and the environment are minimized by treating lead-bearing wastes to a level of 12.0
Mg/l.[fn3: Hazardous Waste Identification Rule, 60 Fed. Reg. 66344 (Dec. 21, 1995) (hereinafter
HWIR).  See discussion of minimized threat levels at 60 Fed.  Reg. 66381-84 and lead minimized threat
level of 12.0 mg/1 in proposed 40 C.F.R. § 268.80 (Table I - Minimized Threat Levels) at 60 Fed. Reg.
66465.] When it stated that a lead treatment level of 12.0 mg/1 would minimize such threats, EPA was
well aware of the holdings in the Hazardous Waste Treatment Council and Chemical Waste Management
cases that the minimization language section 3004(m) did not permit EPA to require treatment beyond
the level where there is threat to human health or the environment. Indeed, the Agency specifically
referred to those holdings (60 Fed. Reg. 66381-84). In view of these findings, it is obvious that an LDR
level of 0.75 mg/1 would require treatment "beyond the point where there is no threat to human health
and the environment."

While EPA failed to finalize the HWIR, there is nothing to indicate that EPA has made a further
assessment demonstrating that a 12.0 mg/1 lead standard would not minimize threats. Instead, the
proposed 0.75 mg/1 standard is based on EPA's view of treatment capabilities, which is obviously no
substitute for a determination that risks exist under the present 5.0 mg/1 TC level and that an 0.75 mg/1
standard is necessary to minimize them.
                                           Pa?e 90

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Commenter:          RSR Corporation
Comment Number:    2SR25
Page Number:         1
RSR Corporation (RSR) submits these comments on the Environmental Protection Agency's (EPA) Land
Disposal Restrictions Phase IV Second Supplemental Proposal. 62 Fed Reg. 26041 (May 12, 1997).
RSR supports and incorporates by reference comments on the rule separately submitted by the Battery
Council International (BCI) and the Association of Battery Recyclers (ABR).  Like BCI and ABR, RSR
cannot support EPA's proposed treatment standards for lead, antimony, silver, beryllium, and thallium
because EPA has not demonstrated that existing commercial technologies are capable of achieving the
proposed standards or that technologies are otherwise available.
                                          Page 91

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Commenter:           Laidlaw Environmental Services
Comment Number:     2SR 28
Page Number:         1
Laidlaw generally supports the establishment of treatment standards for TC metal wastes at the proposed
levels. On p. 26043, however, the Agency proposes to modify the Universal Treatment Standards for
nine metals (antimony, barium, beryllium, cadmium, lead, nickel, selenium, thallium and vanadium) so
that they would be less stringent than the current standards.  We are concerned over whether the EPA can
justify this action since current stabilization technology can achieve lower treatment levels. We are also
concerned about the practical aspects of establishing less stringent treatment standards. As stated on p.
26065, these standards, if adopted, would not become effective in authorized states until the state
adopted the rule as a matter of state  law. As the largest hazardous waste management company in North
America with facilities located in over 30 states, we are concerned about the practical ramifications of
EPA's strategy when it comes to what is essentially deregulatory action.  Despite the Agency's best
efforts in expediting program modification and approval, it still takes most states between 6 months and
2 years to enact regulations which reduce stringency.  Some  States, however, base their regulations
entirely on reference to Federal requirements which go into effect as soon as the Federal one's do. What
we are left with then is the familiar "patchwork" effect; neighboring states having different regulatory
standards. This is extremely burdensome for generators as well as for companies such as Laidlaw that
have operations in many states.
                                            Pa?e 92

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Commenter:           Chemical Products Corporation
Comment Number:     2SR 30
Page Number:         1
The following comments address Chemical Products Corporation's strong disagreement with the
regulatory limit for barium in wastewaters which is included in the table, "Treatment Standards for
Hazardous Wastes" in Subpart D - "Treatment Standards" published in the May 12, 1997 Proposed Rule
(62 FR 26041 - 26084), specifically at page 26073 for D005, at page 26077 for F039, and again at page
26080 for K088.  Each of the above entries shows a proposed regulatory limit for barium in wastewaters
of 1.2 mg/L. This proposed regulatory limit is unreasonably low in light of EPA's Primary Drinking
Water Standard of 2 mg/1 soluble barium and in light of the fact that the suspended solids in the
wastewater could contain up to 5000 mg/1 of barium in the form of harmless, insoluble barium sulfate.
Sound science dictates that any regulatory limit for barium (D005, CAS No. 7440-39-3) in wastewaters
exclude any suspended barium sulfate and recognize that soluble barium is not harmful until high
concentrations are reached.
                                               93

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Commenter:          Chemical Products Corporation
Comment Number:    2SR 30
Page Number:         2
CPC requests that the regulatory limit for barium in Wastewaters be set at 60 ppm of soluble barium (the
wastewater sample must be ultrafiltered prior to analysis to remove colloidal insoluble barium sulfate
which is harmless to humans and the environment). The level of 60 ppm of soluble barium is in line
with what the EPA's drinking water standard for barium would be expected to be when the drinking
water standard is based on the LOAEL of 180 mg/kg/day recognized by EPA in the January 3, 1997
Federal Register (62 FR 366).
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Commenter:           Savage Zinc, Inc.
Comment Number:     2SR 32
Page Number:         1
Savage Zinc, Incorporated has participated in the efforts of the National Mining Association ("NMA") to
review and comment on this broad and complex rule from the perspective of the mining industry.
Savage Zinc adopts and incorporates by reference the comments of the NMA upon the '97 Phase IV
Rule. We are also commenting on one additional issue which was not addressed by NMA, i.e. the
proposal to add zinc as a constituent in the Universal Treatment Standards for hazardous waste which is
treated for disposal in land-based units.  To require that all hazardous waste destined for land disposal be
treated to meet standards for zinc has the effect of expanding the definition of hazardous waste by
including a non-TCLP constituent. We urge EPA to remove zinc from the Universal Treatment
Standards.
                                           Pa
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Commenter:           American Iron and Steel Institute
Comment Number:     2SR39
Page Number:         1 -2
Universal Treatment Standard Issues. AISI believes that EPA must not simply revise the universal
treatment standard for zinc, but must do away with that standard in its entirety. Although the U.S. Court
of Appeals for the District of Columbia Circuit ("D.C. Circuit") upheld the establishment of a zinc
standard for electric arc furnace dust in 1991, the basis for the Court's decision is no longer valid.  AISI
also believes that compliance with LDR treatment standards should be based on composite sampling,
rather than grab sampling, because composite sampling reflects better the environmental performance of
different treatment technologies. If EPA, nevertheless, persists in judging compliance with most
treatment standards on the basis of grab samples, AISI urges the Agency to at least allow composite
sampling for all K061, K062, and F006 wastes.
                                           Page 96

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Commenter:           Coastal
Comment Number:     12
Page Number:         1
In particular, Coastal is concerned with the Agency's proposal for Toxicity Characteristic (TC) metal
wastes and, in particular, the proposed 87.5 percent reduction of the toxicity characteristic leaching
procedure (TCLP) level for mercury contaminated nonwastewaters (D009) from 0.20 milligrams per liter
(mg/1) to 0.025 mg/1.

In a May 1995 report by the Gas Research Institute (GRI) titled Remediation of Mercury-Contaminated
Soils: Development and Testing of Technologies, it was reported that the lowest achievable level of
TCLP for mercury contaminated soils is 0.035 mg/1 after a chemical leaching procedure was applied to
the soils. This TCLP result was on sandy soil with fine grains.  This type of soil is optimum for
achieving a low TCLP result. Other soils with coarse grains and higher clay content did not yield this
low TCLP result after treatment by chemical leaching. These test results ranged from 1.5 mg/1 to 0.13
mg/1 TCLP mercury.
                                           Pa
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Commenter:           Interstate Natural Gas Association of America
Comment Number:     40
Page Number:         1-2
INGAA believes the proposed change in treatment standards for mercury wastes should be considered a
major change and should be set out separately by the Agency for comment by the natural gas industry.
Like many industries, the natural gas industry in the past has used mercury in instrumentation. INGAA
sees the new treatment standards as extremely burdensome to the extent that they will increase costs for
waste treatment and disposal without an equivalent reduction to health risk.  The new standards do not
appear to be based on any assessment of health risk, but rather appear to be established because the "best
demonstrated available technology" ("BDAT") can treat to levels below the level at which the waste is
characteristically hazardous. It is our position that this rational is an insufficient basis for decreasing the
treatment level.

INGAA believes that the scope of potentially affected industries will be more widespread than indicated
in the proposed rule. INGAA's member companies have a critical interest in the far reaching effects that
this rule will have on industry and the public.  INGAA feels that the proposed changes in treatment
standards have not been addressed to the public for comment in the proper manner. For this reason,
INGAA requests that the Agency  set out proposed changes in TC metals for further comment.
                                            Page 98

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 Commenter:           American Gas Association
 Comment Number:     86
 Page Number:         3
EPA is proposing an 87.5 percent reduction of the TCLP level for mercury contaminated nonwastewaters
(D009) from 0.20 mg/1 to 0.025 mg/1. We question whether there are reasonable treatment technologies
for the mercury contaminated soils that may be found at natural gas metering and regulating stations.
These sites are typically small scale projects (two tons of low level contaminated soil per site) in remote
areas. As discussed below, in a May 1995 report by the Gas Research Institute (GRI) titled
"Remediation of Mercury-Contaminated Soils: Development and Testing Technologies", three currently
available or developing technologies were identified that have application for remediation of mercury-
contaminated gas-metering sites within the natural gas industry: 1) a physical separation process in
conjunction with chemical leaching; 2) an oxidative chemical leaching demonstration; and, 3) a portable
thermal treatment standard.

While the physical separation and chemical leaching process appears to be technically sound, this
process is not yet fully developed.  A high degree of systems engineering prior to commercial  application
integrating the individual components or unit operations is still necessary. According to the GRI report,
the lowest achievable level of TCLP for mercury contaminated soils is 0.035 mg/1 after a chemical
leaching procedure was applied to soils. This result was obtained using optimum circumstances. Thus
the chemical treatment process would be excluded as a treatment technology for achieving the levels
proposed, leaving only the Best Demonstrated Available Technology (BDAT) for mercury contaminated
soils — thermal roasting or retorting.
                                            Page 99

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Commenter:           American Gas Association
Comment Number:     86
Page Number:         4
Under most circumstances, the cost for using a portable thermal treatment for our small scale projects
will be prohibitive. Although GRI estimates that the cost to remove and recover mercury from gas-
metering site soils will range from $500 - $750 per ton, this cost estimate is based on an average
throughput of 2000 tons per year. To take advantage of these economies of scale, companies would need
to either transport their small volume wastes to these centrally located facilities or attempt to combine
wastes from  a large number of sites, which may be located in numerous states.  As noted earlier, our sites
typically have one to two tons per site in remote  areas. One company estimates that the cost of mercury
treatment for the limited quantity typical of a gas utility would be in the range of $4000-6000 per ton.

In summary, if the treatment standard for mercury were reduced from 0.2 mg/1 to 0.025 mg/1, physical
separation and chemical leaching methods could not be used without substantial process modifications
that could render the technologies uneconomical. This would leave thermal treatment as the only
methodology available to meet the proposed standard. Before the Agency commits to such a standard, a
health and risk assessment should be required to  confirm that such an impractical and expensive
treatment is necessary.
                                           Page 100

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Commenter:           Battery Council International
Comment Number:     45
Page Number:         5-6
Third, EPA's proposed concentration-based limits for lead do not reflect the level of analytical
performance "achievable" for the wastes. They are below the practical quantification limits (PQLs) for
the TCLP extracts of most secondary lead slags.- State-of-the-art testing methods cannot accurately
detect lead concentration levels as low as 0.37 mg/1 n some D008 nonwastewaters.—

This inability to accurately detect extremely low levels of lead is particularly a problem where, as often
is the case, D008 wastes contain large quantities of sodium salts and other metallics soluble in water.1"
These soluble salts are extracted in the TCLP. This results in very high total dissolved solids (TDS) in
the analytical samples.  The level of TDSs can result in considerable matrix interference at the proposed
regulated LDR limits, where analyses are performed by approved test methods. Thus, the sensitivity of
the instruments is reduced. This in turn results in higher minimum detection limits (MDLs) and
corresponding increases in PQLs — and regulated facilities having this character of D008 wastes simply
will not be able to determine whether or not they are in compliance with standards set at the 0.37 mg/1
level. &
                                            Pa?e 102

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2.4.3b  The UTS for Lead Exceeds Current Analytical Capability

        One commenter [Battery Council International (45)] stated that the UTS for lead exceeds current
analytical capability.

•       Battery Council International stated that EPA's proposed concentration-based limits for lead do
        not reflect the level of analytical performance achievable for the wastes. They are below the
        practical quantitation limits (PQLs) for the TCLP extracts of most secondary lead slags. State-
        of-the-art testing methods cannot accurately detect lead concentration levels as low  as 0.37 mg/1
        in some D008 nonwastewaters. (45:5-6)

Response

        The Agency collected additional treatment performance data that represents the "most difficult-
to-treat" wastes and revised the BOAT treatment standard for lead and re-proposed a treatment standard
of 0.75 mg/I in the second supplemental proposal.  The Agency believes that the new standard reflects
the level of analytical performance that can be achieved by commercially available treatment
technologies (see the BDAT Background Document for additional information on the revised lead
treatment standard).

Comments

•       Battery Council International (45:5-6)
                                            Page 101

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Commenter:          Environmental Defense Fund
Comment Number:    NODA1 10
Page Number:         2
Yet EPA provides no risk analysis in this rulemaking supporting a weaker treatment standard. Instead,
EPA merely notes it received risk data from other parties.  See 61 FR 21420. Accordingly, there is no
evidence in the record indicating the methodology EPA would employ to set a higher treatment standard,
and on what toxicity information the decision would be reached. EPA cannot use the NODA process to
bypass its obligation to properly propose its position for public comment.
                                          Page 104

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2.4.3c EPA Has Not Conducted a Risk Analysis for Silver to Support Weaker Treatment
       Standard

       One commenter [Environmental Defense Fund (NODA1 10)] stated that EPA provided no risk
analysis in its rulemaking supporting a weaker treatment standard for silver and that failure to do so
violates both RCRA and the Administrative Procedures Act.

•      The Environmental Defense Fund stated that EPA provided no risk analysis in its rulemaking
       supporting a weaker treatment standard. According to the commenter, EPA seems to be ignoring
       the fact that silver is extremely toxic to environmental receptors.  This toxicity caused EPA to
       recently rank silver among the highest hazard metals in the RCRA universe.  Failure to assess the
       ecological risk posed by silver, and/or proposed a treatment standard based upon any relevant
       methodology, violates both RCRA and the Administrative Procedures Act. (NODA1 10:2,3)

Response

       The Agency reminds the commenter that the LDR BDAT program is a technology-based
program and not risk-based, and therefore EPA has not violated any RCRA regulations by proposing
concentration-based standards achievable through commercially demonstrated and available treatment
technologies.

Comments

•      Environmental Defense Fund (NODA1 10:2,3)
                                          Page 103

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2.4.3d There Is No Technical or Legal Basis for Changing the UTS for Silver

       One commenter [Environmental Technology Council (NODA1 14)] stated that EPA does not
have an adequate technical or legal basis to change the UTS for silver.

•      The Environmental Technology Council stated that neither the NODA1 nor the Administrative
       Record provides any adequate technical or legal basis for the "possibility" of changing the UTS
       for silver for all hazardous wastes or setting the UTS for D011 wastes only to the TC regulatory
       level of 5.0 mg/1.  (NODA1 14:9)

Response

       In the second supplemental Phase IV proposed rule, EPA proposed a treatment standard of 0.11
for silver. In response to the second supplemental proposal, the Agency obtained additional treatment
performance data that represents the "most difficult to treat" wastes, and therefore has  revised the BOAT
treatment standard for silver at 0.14 mg/1.  The Agency believes that this standard  represents the "most
difficult to treat" silver wastes, and can be achieved by commercially available treatment technologies
(see the BOAT Background Document for additional information on the revised silver treatment
standard).

Comments

•      Environmental Technology Council (NODA1 14:9)
                                          Page 106

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Commenter:           Environmental Defense Fund
Comment Number:     NODA1 10
Page Number:         3
As noted above, no ecological risk assessment is provided or even discussed in the instant NODA. This
abject failure to assess the ecological risk posed by silver, and/or propose a treatment standard based
upon any relevant methodology, violates both Section 3004(m) of RCRA and the Administrative
Procedures Act.
                                           Page 105

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[This page intentionally left blank.]

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Commenter:           Environmental Technology Council
Comment Number:     NODA1 14
Page Number:          9
In this NODA, however, EPA discusses the "possibility" of changing the UTS for silver for all hazardous
wastes, or setting the UTS for D011 wastes only, to the TC regulatory level of 5.0 mg/1. 61 FR 21420,
col. 1. Neither the NODA, nor the administrative record, provides any adequate technical basis for these
"options." Although silver poses significant ecological toxicity risks, EPA asserts that "human health
effects are not major." Id. Based on this unsupported statement, the agency would take the ill-conceived
step of abandoning the technology-based UTS for silver-bearing wastes and setting a new apparently
"risk-based" standard at the TC regulatory level.

Regrettably, for EPA to announce this major departure from the BDAT methodology in a Notice of Data
Availability - without technical justification or discussion of the implications for the LDR program - is
plainly irresponsible. There is no discussion in the NODA of the following significant issues:

•       EPA does not discuss how a treatment standard based simply on the TC regulatory level would
        meet the "minimize threat" standard in RCRA 3004(m)(l).

•       There  is no discussion, or supporting data, showing that the TC level  for silver would
        "substantially diminish the toxicity of the waste or substantially reduce the likelihood of
        migration of hazardous constituents from the waste" as required by the statute. Indeed, the TC
        level is the concentration at which a waste is "clearly hazardous" warranting Subtitle C control,
        not the level at which the toxicity and/or mobility of this hazardous constituent has been
        "substantially" reduced.

•       Nor is there any discussion in the NODA of the relationship of the Hazardous Waste
        Identification Rule (HWIR), and its multi-pathway risk assessment approach, to this ostensible
        risk-based treatment level for D011 wastes (and potentially all hazardous wastes that contain
        silver as an underlying hazardous constituent).  Ironically, the HWIR multi-pathway risk analysis
        for silver resulted in a risk-based level of 0.134 mg/kg total for nonwastewater. 60 FR 66431
        (Table C-l).

•       Given that silver poses significant aquatic toxicity risks, EPA does not explain how setting the
        LDR treatment standard at the TC toxicity level would minimize threats to the environment, as
        the statute requires.

Because the current UTS levels have a sound technology basis, and the NODA "alternative" to substitute
the TC silver level does not have an adequate technical or legal basis in the record, it should be rejected.
                                            Page 107

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Response

       The Agency notes that the required capacity estimates were determined by reviewing all
available data on waste generation and management (see the required capacity section of the Capacity
Analysis Background Document). The Agency clarifies that available waste generation data on lead-
based paint wastes are also included in the capacity analysis. Additional data provided by the
commenters along with the data reviewed by the Agency indicate that the existing treatment systems
would only need relatively minor changes to optimize the systems to meet the UTS levels (see the
Capacity Analysis Background Document for supporting data provided by the commenters). The
Agency appreciates the additional data on required capacity provided by the commenters, and has
incorporated the data into the capacity analysis.

Comments

       TDJ Group (26:3-4)
       Association of Battery Recyclers (38:8)
       Battery Council International (45:6-7)
       Department of Defense (74:3-4)
       American Foundrymen's Society (77:3)
       Brush Wellman (82:10-11)
                                           Pa?e 110

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                                         CHAPTER 3
                                    TC METAL WASTES

        Several commenters addressed issues related to available and required commercial treatment
capacity for TC metal wastes.  Specifically, commenters addressed the appropriateness of a capacity
variance for TC metal wastes and whether available stabilization capacity will be able to meet the
proposed treatment standards for particular TC metal constituents, waste streams, or streams containing
multiple TC metal constituents. Commenters also discussed HTMR capacity as well as required capacity
for soil contaminated with TC metals.

3.1     Estimates of Required Capacity

3.1.1    EPA May Have Underestimated the Required Capacity for TC Metal Wastes

        Six commenters [TDJ Group (26); Association of Battery Recyclers (38); Battery Council
International (45); Department of Defense (74); American Foundrymen's Society (77); Brush Wellman
(82)] provided data on the quantity of TC metals affected by the proposed rule.

•       The TDJ Group stated that approximately 500,000 to 1,000,000 tons of D006-D008 will be
        affected by Phase IV.  (26:3-4)

•       ABR stated that an estimated 260,000 tons per year of D008 slag will require treatment. (38:8)

•       BCI stated that the amount of newly identified lead slag requiring treatment is 255,000 tons per
        year, six times the EPA-estimated quantity; contaminated soils requiring treatment for lead could
        approach 21,000,000 tons at NPL sites alone.  (45:6-7)

•       The Department of Defense asks EPA to clarify whether it included lead-based paint wastes in
        its capacity analysis.  DOD routinely addresses lead-based paint issues. It is unclear from the
        proposed rule if capacity for lead-based paint wastes are considered. (74:3-4)

•       The American Foundrymen's Society provided data on the quantity of emission control dust and
        foundry sand generated by the foundry industry each year that exhibit the TC for various metal
        constituents and the costs to treat these wastes (approximately 410,000 tons per year at a cost of
        $62-82 million dollars). (77:3)

•       Brush Wellman believes EPA should consider the additional stabilization necessary to meet the
        proposed TC metal standards. (82:10-11)
                                            Page 109

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Commenter:          Association of Battery Recyclers
Comment Number:    38
Page Number:         8
Similarly, EPA has not demonstrated that HTMR is commercially "available" to treat the potential
volume of D008 material that would be subject to LDRs if the UTSs were applied.  This technology, as
applied to D008 wastes, still is in a developmental stage.7 Moreover, the ABR estimates that over
260,000 tons of D008 slag per year will require treatment if the
                                          Page 112

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Commenter:           TDJ Group
Comment Number:     26
Page Number:         3-4
5)     The proposed rulemaking appears to violate RCRA Section 3004 (M), since the proposed
standards are based on technologies that are commercially available.
Our analysis of the markets for D006, D007 and D008 waste management from the iron and steel
industry and the steel maintenance industry suggest that 500,000 to 1,000,000 tons of solid waste will be
covered by these regulations.  It appears clear that most of these wastes will not be amenable to HTMR,
and it would appear that there is not adequate capacity to provide this form of recovery. This appears to
imply that these wastes will require stabilization before disposal. It is not clear that existing stabilization
technologies will have the ability to meet these standards. The Agency has not used wastes
representative of these industries to establish these standards.  The Agency has assumed that there is
sufficient capacity to receive these wastes for HTMR, but industry data suggests that these wastes are not
amenable to these processes.  If HTMR capacity is not present and if the Agency has not adequately
researched the efficacy of stabilization technologies, then the Agency is establishing a "technology
forcing standard" that is a violation of RCRA 3004 (M).
                                                 111

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Commenter:           Department of Defense
Comment Number:     74
Page Number:         3-4
DOD routinely addresses lead-based paint issues. It is unclear from the proposed rule if capacity for
lead-based paint wastes was considered in this rule. DOD thus requests EPA to review if adequate
capacity (for example, high temperature metal recovery) exists for this waste stream.

Oftentimes, lead-based paint in debris and soils is not classified as a hazardous waste, and thus the land-
disposal restrictions are not applicable. However, when LDR would apply, lead-based paint should be
treated similar to other remediation wastes, and thus distinguished from as-generated waste. DOD thus
requests EPA to consider an exemption or variance for this remediation waste. DoD understands that an
exemption from LDR for lead-based paint wastes may be consistent with EPA's soon to be released rule
on architectural  components.
                                           Pa?e 114

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Commenter:           Battery Council International
Comment Number:     45
Page Number:         6-7
B.      There is Lack Of Adequate Capacity For Treatment Of D008 Wastes

Even if existing HTMR/stabilization technologies were "Commercially available" and capable of treating
the D008 nonwastewaters to the proposed treatment standards (which EPA has not demonstrated), there
is a lack of adequate available treatment capacity to manage these wastes .—  According to RCI, the
amount of newly identified lead slag requiring treatment or stabilization would be at least 255,000 tons
per year.—' This is at least 6 times more than the amount predicted by the Agency in the proposed rule
(i.e., 41, 250 tons per year). Furthermore, this estimate does not include contaminated soils, emission
control dusts, and sludges, among other D008 wastes, that also would be newly identified as requiring
treatment.

The amount of contaminated soils requiring treatment at 157 National Priority List (NPL) sites alone
could approach 21,000,000 tons.-' As RCI states in the attached letter, this figure does not account for
the amount of contaminated soil requiring treatment that will be generated from RCRA corrective action
cleanups, state Superfund cleanups or for that matter, from the cleanup of residential soils.-'

Treating these large quantities of D008 wastes to the UTS level for lead and  selenium will place an
enormous burden on the lead recycling industry. It certainly will require much more than 1 million tons
of stabilization capacity predicted by the Agency in the proposed LDR Phase IV rule.
                                           Pa»e 113

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 Commenter:           Brush Wellman
 Comment Number:     82
 Page Number:          10-11
 In anticipation of EPA's proposal, Brush Wellman began to make inquiries regarding commercially
 available HTMR processes for its waste streams.  Brush Wellman discussed with Horsehead Resource
 Development Company ("Horsehead") its ability to process Brush Wellman's beryllium-containing
 wastes. One such waste stream, a rotary filter sludge with lead concentrations above the toxicity
 characteristic level, is the hazardous waste with the highest beryllium content currently generated by
 Brush Wellman. This waste contains more than 14% beryllium. At the time of Brush Wellman's
 inquiry, Horsehead had a commercially available HTMR process in which it would treat the waste to
 recover copper values. However, according to Horsehead, it estimated that the beryllium content of the
 remaining slag would range between 7,800-8,700 ppm TCLP, well above the universal treatment
 standard for beryllium. A different waste stream, containing only 0.4% beryllium was anticipated to
 create a HTMR slag ranging between 100-120 ppm TCLP, also above the beryllium standard.  Brush
 Wellman has recently learned that Horsehead has discontinued this process and currently will accept
 only K061 for HTMR processing. Thus, the only commercial HTMR outlet for Brush Wellman's
 toxicity characteristic wastes is no longer available and, if it were, it would not be able to process Brush
 Wellman's waste so as to satisfy the universal treatment standard.

 EPA suggests that stabilization is an alternative treatment technology that is available for use by
 generators of toxicity characteristic metal wastes to meet the universal treatment standards. Indeed,
 EPA's background document evaluating available capacity for treating these wastes focuses solely on
 stabilization capacity and does not present any information regarding commercial capacity for HTMR.
 As discussed previously, Brush Wellman is not  aware of a commercial HTMR process which is available
 to treat its beryllium-containing toxicity characteristic metal wastes.  It is not reasonable for the Agency
 to promulgate a BDAT-based standard based on one technology and expect compliance based on use of a
 different technology which has not been thoroughly evaluated for performance  and capacity. Brush
 Wellman is not aware of any data in the administrative record which demonstrate that the universal
treatment standard for beryllium is attainable through stabilization. Without such data, Brush Wellman
 must question how EPA could make a supportable determination that the beryllium standard is
achievable or even desirable with respect to toxicity characteristic metal wastes. For example, has EPA
 considered how much additional stabilization agent may be necessary to treat beryllium to the required
 level and how much additional landfill capacity will be necessary in order to accommodate the increased
volume of the treated waste? Finally, it is not clear from a review of the capacity background document
that EPA even considered the  additional stabilization  of toxicity characteristic metal wastes which may
be necessary in order to meet the universal treatment standards with respect to underlying hazardous
constituents such as beryllium.
                                            Pa?ell6

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Commenter:           American Foundrymen's Society
Comment Number:     77
Page Number:         3
The ability of iron and steel foundries to continue recycling 35 billion pounds of ferrous metal scrap each
year depends on their ability to manage their foundry wastes in a cost effective manner. Each year,
foundries in the U.S. generate an estimated 410,000 tons of EC dust and foundry sand that exhibit a
hazardous characteristic for toxicity. See calculations attached as Exhibit 2. In addition to EC dust and
foundry sand, other foundry waste streams potentially subject to the proposed LDR Phase IV rulemaking
include byproducts to melting operations,  and other waste streams from cleaning and processing
operations. Assuming that available stabilization technologies could treat these foundry wastes to meet
the proposed treatment standards, they would cost between $150 to $200 per ton for stabilization and
disposal of these wastes off-site. Consequently, the proposed rule would impose between $62 to $82
million in total annual treatment and disposal costs on the foundry industry (approximately double the
current costs of treatment and disposal). In fact, these costs could be even higher because of the inherent
variability of foundry wastes which make  them more difficult to consistently stabilize.
                                            Pas:ell5

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3.1.2   Amount of Soil and Debris Requiring Treatment Will Exceed EPA's Current
        Capacity Estimate

        One commenter [Battery Council International & Association of Battery Recyclers
(2SR 17)] stated that EPA underestimated the required treatment capacity for soil and debris.

•       Battery Council International & Association of Battery Recyclers stated that the amount of
        contaminated soils and debris requiring treatment will be considerably more than EPA's current
        capacity estimate.  For example, the amount of contaminated soils and debris requiring treatment
        at National Priority List sites alone could approach 21 million tons.  This figure does not account
        for the amount of contaminated soils and debris requiring treatment that will be generated from
        RCRA corrective action cleanups, or state Superfund cleanups.  (2SR 17:15)

Response

        In the Phase IV proposed rules, the Agency acknowledged the lack of data on contaminated soils.
EPA appreciates the data provided by the commenter and has incorporated these data into the capacity
analysis for the final rule. In the final Phase IV rule, however, the Agency has promulgated alternative
treatment standards (ten times UTS or 90 percent reduction) for contaminated soil.  The Agency believes
that these less stringent  standards for contaminated soil can be achieved by existing commercially
available treatment technologies. The Agency also compiled treatment performance data for
contaminated soils from remediation case studies that  indicate that the alternative treatment standards
can be readily achieved  by commercially available treatment technologies and adequate treatment
capacity is available for these contaminated soils. (See the BOAT and Capacity Analysis Background
Documents for additional information)

Comments

•      Battery Council International & Association of Battery Recyclers (2SR 17:15)
                                           Page 117

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Commenter:           Battery Council International & Association of Battery Recyclers
Comment Number:     2SR 17
Page Number:         15
The amount of contaminated soils and debris requiring treatment will be considerably more than EPA's
current capacity estimate. For example, the amount of contaminated soils and debris requiring treatment
at National Priority List (NPL) sites alone could approach 21,000,000 million lons.[fn28: See comments
of Battery Council International (Nov. 27,1995) and Association of Battery Recyclers (Nov. 20,  1995)
submitted in response to EPA Land Disposal  Restrictions Phase IV proposed rule (60 Fed. Reg. 43,654
(1995))]. This figure does not account for the amount of contaminated soils and debris requiring
treatment that will be generated from RCRA corrective action cleanups, or state Superfund cleanups.
                                           Page 118

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3.1.3   Additional Data Could Be Added on Required Capacity for TC Wastes Mixed With
        Radioactive Wastes

        Two commenters [Westinghouse Electric Corporation (2SR 14); Department of Energy (2SR
23)] provided data on the quantity of radioactive mixed wastes affected by the proposed rule.

•      Westinghouse Electric Corporation reported that 133,565 cubic meters of non-wastewater
        material (including D011) from the Savannah River Site (DOE facility managed by
        Westinghouse) would be land disposed.  Since these wastes are radioactive, it is unlikely that any
        silver would be reclaimed or recycled. Some of these waste streams will be macroencapsulated
        for land disposal. Others will be incinerated or vitrified into glass.
        (2SR 14:2)

•      The Department  of Energy (DOE) reported that approximately 41,350 cubic meters of
        nonwastewater D011 mixed radioactive wastes were stored at DOE sites as of December 1996.
        Additional nonwastewater D011 mixed wastes are projected to be generated during the coming 5
        years.  If practicable, DOE may use metal removal/recovery technologies to manage some
        nonwastewater D011 mixed waste streams. However, due to the radioactive nature of
        nonwastewater D011 mixed waste streams, DOE is treating or plans to treat most such streams
        using macroencapsulation,  stabilization, vitrification, or incineration technologies. Also reported
        no plans for using UIC wells for managing hazardous and mixed wastes.  (2SR 23:5)

Response

        EPA appreciates  the data provided by the commenters on quantities of radioactive mixed wastes
and has incorporated these data into the capacity analysis for the final  rule.

Comments

•       Westinghouse Electric Corporation (2SR 14:2)
•       Department of Energy (2SR 23:5)
                                           Page 119

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Commenter:           Westinghouse Electric Corporation
Comment Number:     2SR 14
Page Number:         2
EPA requested comment- on quantities of silver non-wastewaters that would be land disposed. The
September 1996 Mixed Waste Inventory Report for the Savannah River Site, a Department of Energy
(DOE) facility managed by Westinghouse, shows 7,240 m3 of mixed low level wastes that include D011.
There is also 126,325 m3 of high level wastes that include D011.  Since these wastes are radioactive, it is
unlikely that any silver would be reclaimed or recycled. Some of these waste streams will be
macroencapsulated for land disposal. Others will be incinerated or vitrified into glass.
                                           Page 120

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Commenter:           Department of Energy
Comment Number:     2SR 23
Page Number:         5
Many DOE sites generate, or have stored inventories of mixed wastes assigned the D011 waste code,
among other codes. Data reported in the 1995 DOE Mixed Waste Inventory Report, as revised by
updated information submitted to the states during 1996, indicate that approximately 41,350 cubic meters
of nonwastewater D011 mixed wastes (in the form of mixed low level wastes and mixed transuranic
wastes) were stored at 25 DOE sites as of December 1996. Additional nonwastewater D011 mixed
wastes are projected to be generated at 20 of these sites during the coming 5 years. If practicable, DOE
may use metal removal/recovery technologies to manage some nonwastewater D011 mixed waste
streams. However, due to the radioactive nature of nonwastewater D011 mixed waste streams, DOE is
treating or plans to treat most such streams using macroencapsulation, stabilization, vitrification, or
incineration technologies.  Treatment residues from these technologies that meet LDR treatment
standards will be land disposed as appropriate when capacity becomes available.
                                          Page 121

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3.2     Capacity Variance Issues for TC Metal Wastes

3.2.1   TC Metal Wastes

3.2.la  Sufficient Capacity Does Not Exist to Meet Required Capacity for Some TC Metal Wastes

        Four commenters [TDJ Group (26); Battery Council International (45; 2SR 17); Association of
Battery Recyclers (2SR 17); Department of Defense (74)] believe that EPA's estimate of available
capacity for TC metals is not sufficient to meet the  demand for such capacity.

•       The TDJ Group stated that approximately 500,000 to 1,000,000 tons of D006-D008 will be
        affected by Phase IV and that adequate treatment capacity may not be available. (26:3-4)

•       Battery Council International (BCI) states that even if existing HTMR/stabilization technologies
        are available, there is a lack of capacity to treat D008 wastes.  According to BCI, the amount on
        newly identified lead slag requiring treatment of stabilization would be at least 255,000 tons per
        year (6 times the EPA estimate). This estimate does not include contaminated soils, emission
        control dust, sludges, and other D008 wastes that would require treatment. (45:6-7)

•       Battery Council International & Association of Battery Recyclers stated that there is a lack of
        adequate capacity for the treatment of D008 wastes. Even if existing HTMR/stabilization
        technologies were "commercially available" and capable of treating the D008 nonwastewaters to
        the proposed treatment standards, there is a lack of adequate available treatment capacity to
        manage these wastes. Treating these  large quantities of D008 wastes to the proposed treatment
        standards will place an enormous burden on the lead recycling industry.  It certainly will require
        much more than the 0.8 to 2.6 million tons of stabilization capacity predicted by the Agency in
        the proposed phase IV second supplemental rule.  (2SR 17:14-15)

•       DOD has a military-unique hazardous waste stream that contains metals in excess of the
        proposed TC and UTS levels. This waste stream has no recognized capacity at this time. (74:3)
Response

       The Agency disagrees with the comments that adequate capacity is not available for treating TC
metal wastes. Data provided by other commenters (e.g., ETC) and EPA's own analysis indicate that
adequate commercial stabilization and other capacity exists for the Phase IV wastes. Furthermore, the
Agency notes that several commercial vendors offer on-site stabilization systems for treating wastes.
(Refer to the phone logs and data provided by the commenters on available and other capacity in the
Capacity Analysis Background Document.) The Agency believes that such systems either already can
meet the  new treatment standards or can be readily optimized to meet additional demand for treating the
Phase IV wastes.
                                            Page 122

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        With respect to the military-unique hazardous waste stream or any other waste streams that pose
unique treatability problems, the Agency notes that the affected party may petition the Agency for a
treatability variance as per 40 CFR 268.44. For newly identified wastes (i.e., wastes that do not fail the
EP test, and, consequently, are not part of the Third Third LDR Rule), the affected party may also
request a capacity variance extension per 40 CFR 268.5 on a case-by-case basis. Wastes regulated in the
Third Third LDR Rule (i.e., wastes that fail the EP test) are not eligible for capacity variances because
the extension provided in that rulemaking has already expired.

Comments

•      TDJ Group (26:3-4)
•      Battery Council International (45:6-7)
•      Battery Council International & Association of Battery Recyclers (2SR  17:14-15)
•      Department of Defense (74:3)
                                            Page 123

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Commenter:           TDJ Group
Comment Number:     26
Page Number:         3-4
5)     The proposed rulemaking appears to violate RCRA Section 3004 (M), since the proposed
       standards are based on technologies that are commercially available.

       Our analysis of the markets for D006, D007 and D008 waste management from the iron and steel
       industry and the steel maintenance industry suggest that 500,000 to 11000,000 tons of solid
       waste will be covered by these regulations. It appears clear that most of-these wastes will not be
       amenable to HTMR, and it would appear that there is not adequate capacity to provide this form
       of recovery. This appears to imply that these wastes will require stabilization be fore disposal.
       It is not clear that existing stabilization technologies will have the ability to meet these standards.
       The Agency has not used wastes representative of these industries to establish these standards.
       The Agency has assumed that there is sufficient capacity to receive these wastes for HTMR, but
       industry data suggests that these wastes are not amenable to these processes.  If HTMR capacity
       is not present and if the Agency has not adequately researched the efficacy of stabilization
       technologies, then the Agency is establishing a "technology forcing standard" that is a violation
       of RCRA 3004 (M).
                                            Page 124

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Commenter:           Battery Council International
Comment Number:     45
Page Number:         6-7
B.      There is Lack Of Adequate Capacity For Treatment Of D008 Wastes

Even if existing HTMR/stabilization technologies were "Commercially available" and capable of treating
the D008 nonwastewaters to the proposed treatment standards (which EPA has not demonstrated), there
is a lack of adequate available treatment capacity to manage these wastes .—' According to RCI, the
amount of newly identified lead slag requiring treatment or stabilization would be at least 255,000 tons
per year.—' This is at least 6 times more than the amount predicted by the Agency in the proposed rule
(i.e., 41, 250 tons per year). Furthermore, this estimate does not include contaminated soils, emission
control dusts, and sludges, among other D008 wastes, that also would be newly identified as requiring
treatment.

The amount of contaminated soils requiring treatment at 157 National Priority List (NPL) sites alone
could approach 21,000,000 tons.—' As RCI states in the attached letter, this figure does not account for
the amount of contaminated soil requiring treatment that will be generated from RCRA corrective action
cleanups, state Superfund cleanups or for that matter, from the cleanup of residential soils.—'

Treating these large quantities of D008 wastes to the UTS  level for lead and selenium will place an
enormous burden on the lead recycling industry. It certainly will require much more than 1 million tons
of stabilization capacity predicted by the Agency in the proposed LDR Phase IV rule.
                                                125

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Commenter:           Battery Council International & Association of Battery Recyclers
Comment Number:     2SR 17
Page Number:         14-15
Even if existing HTMR/stabilization technologies were "commercially available" and capable of treating
the D008 nonwastewaters to the proposed treatment standards (which, as demonstrated above, they are
not), there is a lack of adequate available treatment capacity to manage these wastes.[fn25: According to
EPA, "available capacity" is estimated to be the difference between the appropriate waste management
system's maximum or design capacity and the amount of waste currently going to the system (utilized
capacity). See EPA, Background Document for Capacity Analysis for Land Disposal Restrictions Phase
IV (Second Supplemental) Toxicity Characteristic Metal Wastes and New Identified Mineral Processing
Wastes (proposedrule), 1-5 (Apr. 1997).] EPA has estimated that there are 0.8 to 2.6 million tons per
year of capacity available to treat TC metal wastes to the proposed treatment standards. fn26: id. At 1-6]
By its own admission, however, the Agency states that "[i]n all of the data sources consulted by the
Agency, there was little information on the amount of soil and debris  that might be contaminated with
newly identified TC metal wastes.... Consequently, EPA has no estimates for the amount of contaminated
soil or and debris that would be subject to the LDRs for this proposed rule."[fn27: id at 3-7]
                                           Page 126

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Commenter:           Department of Defense
Comment Number:     74
Page Number.         3
DoD has a military-unique hazardous waste stream that contains metals in excess of the proposed TC and
UTS levels, which has no recognized treatment capacity at this time. Since the capacity does not exist
for this waste stream, DoD requests the opportunity to submit further information in support of a
National Capacity Variance. Because this unique waste  also exhibits the reactivity characteristic, the
Variance would also have to extend to this criteria. DoD is diligently pursuing research and development
on treatment technologies and would like to request a meeting to discuss with EPA in more detail this
DoD waste.
                                           Page 127

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3.2.Ib  A Variance Is Needed for Wastes Containing More Than One TC Metal

        One commenter [General Motors Corporation (2SR 33)] stated that EPA should grant variances
for wastes containing more than one TC metal until data regarding interaction among metals are gathered
and studied.

•       Referring to the  interview logs provided in Appendix A of the Capacity Analysis Background
        Document (proposed rule), General Motors (GM) stated that the data indicate concerns over the
        ability to treat wastes containing more than one metal and requested treatment variance for such
        wastes. Therefore, GM believes that the Agency should not expand the LDR requirements to the
        TC wastes at this time until data regarding metal interaction are gathered and studied. If these
        regulations are promulgated as proposed without further investigation the Agency should at least
        include provisions that would allow variances or exemptions for problematic complex metal
        bearing streams.  (2SR 33:2,3)

Response

        This issue is an extension of the one discussed in Section 2.1.1.  To summarize, the Agency
compiled additional evidence regarding the treatability of mixed-metal TC metal wastes to the UTS by
conducting site visits to several commercial hazardous waste treatment facilities, collecting additional
stabilization and HTMR treatment performance data that better represent the diversity of metal wastes,
and analyzing relevant commenter data. Based on an analysis of these data, the Agency believes that a
well designed stabilization system can immobilize any combination of metals to the proposed UTS
levels, and that any necessary re-designing or optimization of these systems  can take place within 90
days of promulgation of the final rule. Thus, a capacity variance is unnecessary.  Furthermore, EPA
notes that if a situation exists in which the waste is unique in that it possesses properties making it
difficult to treat, the affected party may petition the Agency for a treatability variance as per 40 CFR
268.44.  For newly identified wastes (i.e., wastes that do not fail the EP test, and, consequently, are not
part of the Third Third LDR Rule), the affected party may also request a capacity variance  extension per
40 CFR 268.5 on a case-by-case basis. Wastes regulated in the Third Third LDR Rule (i.e., wastes that
fail the EP test) are not eligible for capacity variances because the extension provided in that rulemaking
has already expired.

Comments

•      General Motors Corporation (2SR 33:2,3)
                                            Page 128

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Commenter:           General Motors Corporation
Comment Number:     2SR33
Page Number:         3
Apparently, the waste treatment industry is concerned with their ability to treat complex nonwastewater
streams.  This writer believes that the Agency in determining appropriate BOAT land disposal restriction
levels for metal contained non wastewater waste only studied single metal containing waste streams.

The Agency should not expand the LDR requirements to the TC wastes at this time until data regarding
metal interaction are gathered and studied. If these regulations are promulgated as proposed without
further investigation the Agency should at least include provisos that would allow variances or
exemptions for problematic complex metal bearing streams.
                                           Pa»e 130

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Commenter:           General Motors Corporation
Comment Number:     2SR 33
Page Number:         2
The docket contained no information on nonwastewater streams that contained higher concentrations of
two or more metals (docket item 2 - "Final Revised Calculation of Treatment Standards Using Data
Obtained from Rollins ...). Several letters contained in the docket which summarized interviews with
personnel in the waste treatment industry indicated concerns about meeting LDR levels when several
metals are present in a waste steam (Appendix A - Data on Available Stabilization Capacity).
                                           Page 129

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 Commenter:           CITGO Petroleum Corporation
 Comment Number:     2SR 11
 Page Number:         3
A.     The Extremely Large Volume of Surge Pond Sludge Renders BOAT Inappropriate.

In this case, it is without question that the large amount of sludge material remaining to be removed
during closure of the Surge Pond, estimated to be 375,000 cubic yards, makes the treatment technologies
upon which BOAT was based inappropriate for the waste. If incineration was the method required to
treat the Surge Pond sludge to BDAT levels, the remaining Surge Pond sludge alone could consume all
available national incineration capacity for over 18 months.  See Site-Specific Treatability Variance
Petition for F037/F038 Hazardous Wastes Generated From Surge Pond Closure, dated April 1994,
RCRA Docket Id. No. F-94-TVLP-S0001 ("Variance Petition"), §2.2.4, p. 2-5.  The lack of capacity of
local incineration would require CITGO to transport the Surge Pond sludge to remote incineration
facilities in Texas, Arkansas, Kansas, Kentucky, South Carolina, Ohio and Utah. CITGO calculates that
nearly 24 million miles would be traveled in order to incinerate all Surge Pond sludge, resulting in a
probability of 48 highway accidents involving a possible release of hazardous materials to the
environment. See Supplement to Site-Specific Treatability Variance Petition for F037/F038 Hazardous
Wastes Generated from  Surge Pond Closure, dated May 1994, RCRA Docket Id. No. F-94-TVLP-S0002,
("Variance Petition Supplement"), §3.22. Furthermore, any other facilities dependent on those
incinerators for disposal of waste would not be able to utilize such facilities during that time. The
extremely large volume of Surge Pond sludge and the lack of incineration capacity illustrates and
underscores the inappropriateness of the treatment technology underlying BDAT with respect to closure
of the Surge Pond.
                                               132

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3.2.1c  Large Volume of Sludge Justifies a Variance from the Treatment Standards

       One commenter [CITGO Petroleum Corporation (2SR 11)] stated that the large amount of sludge
material to be removed during the closure of a surface impoundment located in their property and the
lack of incineration capacity justify a treatability variance from the treatment standards.

•      CITGO Petroleum Corporation stated that large amounts of sludge material (approximately
       375,000 cubic yards) have to be removed from the surface impoundment (Surge Pond) at the
       CITGO refinery in Lake Charles, Louisiana. If incineration were used to treat this sludge to the
       BOAT levels, the remaining Surge Pond sludge could consume all available national incineration
       capacity for over 18 months. The lack of local incineration capacity would require CITGO to
       transport the sludge to remote incineration facilities in Texas, Arkansas, Kansas, Kentucky,
       South Carolina, Ohio, and Utah. The extremely large volume of these sludge materials and the
       lack of local incineration capacity makes the treatment technologies upon which the BOAT was
       based inappropriate for the waste. (2SR 11:3)

Response

       In the Phase IV LDR second supplemental proposed rule (62 FR 26061), EPA proposed to
reissue a treatment variance granted to CITGO Petroleum on October 28, 1996 (61 FR 55718) for wastes
disposed in a large surface impoundment awaiting closure.  However, since the variance was granted,
CITGO has chosen to pursue the legal option of seeking to close the impoundment with waste left in
place. Because of CITGO's decision, EPA withdrew the CITGO treatment variance as part of the
"Clarification of Standards for Hazardous Waste Land Disposal Restriction Treatment Variances; Final
Rule."  (62 FR 64504, December 5, 1997).

Comments

•      CITGO Petroleum Corporation (2SR 11:3)
                                          Page 131

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Commenter:           Environmental Technologies International, Inc.
Comment Number:     NODA1 1
Page Number:         1
The Capacity Issues listed in item (4) found on Page 21422 of the above referenced Proposed Rule cites
the request for a "capacity variance." The need for a variance is technologically and operationally
unfounded. The annual treatment capacity provided by ETI's fixed based unit is 100, 000 tons. The
annual treatment capacity offered by ETI's mobile treatment  unit is 40,000 tons. Additional treatment
units can be operational in less than 45 days.
                                           Page 134

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3.2.1d  A Variance for Any TC Metal Wastes Is Not Justified

        Two commenters [Environmental Technologies International, Inc. (NODA1 1); Environmental
Technology Council (NODA1 14)] stated that a variance for any TC metal wastes is not justified.
•       Environmental Technologies International, Inc. (ETI) stated that the need for a capacity variance
        is technologically and operationally unfounded. The annual treatment capacity of ETI is 100,000
        tons for its fixed units and 40,000 tons for its mobile treatment unit. ETI also stated that
        additional treatment units can be operational in less than 45 days. (NODA1 1:1)

•       The Environmental Technology Council stated that it is not likely that the 1.3 million tons of
        waste for stabilization in 1994 would be materially exceeded in the near future and that given the
        large amount of stabilization capacity available, a variance for any TC metal wastes is clearly not
       justified. (NODA1 14:13)

Response

        EPA appreciates the data provided by the commenter and notes that the Agency has incorporated
the data into the Capacity Analysis Background Document. The Agency believes that the 90-day period
between the publication date and the effective date of the rule will allow treaters sufficient time to
optimize treatment systems and conduct other activities (e.g., analyzing wastes) in order to meet
treatment standards. Therefore, the Agency is not granting a national capacity variance for  TC metal
wastes.

Comments

•       Environmental Technologies International, Inc. (NODA1 1:1)
•       Environmental Technology Council (NODA1  14:13)
                                            Page 133

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 3.2.2   Soil and Debris Contaminated with TC Metal Wastes

 3.2.2a  A Capacity Variance Decision for TC Metal Soils Is Unclear

        EPA did not propose a national capacity variance for soils contaminated with TC metals.
 However, the preamble to the original Phase IV proposed rule  could be misunderstood to have proposed
 such a variance. Three commenters [Natural Gas Pipeline Co.  of America (37); American Gas
 Association (86); Hazardous Waste Management Association (97)] ask that EPA clarify whether or not it
 is granting a variance.

 •      The Natural Gas Pipeline Co. of America noted that a variance for soils contaminated with
        metals is discussed in the proposed rule; however, the variance is not proposed.  EPA should
        formally propose a soil treatability variance for metals so that industry will not be technically
        subject to the UTS while the treatment technology is being developed. (37:2)

 •      The American  Gas Association noted that EPA did not propose a national capacity variance for
        soils contaminated with metals.  (86:4-5)

 •      Hazardous Waste Management Association requested clarification on the variance for soil and
        debris. (97:17-18)

 Response

        The Agency agrees that the original Phase IV proposed rule could be misunderstood to have
 proposed a variance for contaminated soil; therefore, this issue was clarified in subsequent notices.
 Furthermore, EPA recognizes the unique issues associated with remediation waste, including hazardous
 contaminated soil, and therefore believes that it is appropriate to establish alternative, less-stringent LDR
 treatment standards for hazardous soil, so long as the alternative standards encourage implementation of
 more aggressive or permanent remedies contemplated by RCRA section 3004(m). (See 61 FR 18808,
 April 29, 1996 for additional discussion on this issue.)  Therefore, in the final Phase IV rule, the Agency
 has promulgated alternative treatment standards for hazardous soil, which require that the concentrations
 of constituents subject to treatment be reduced by 90 percent with treatment for any given constituent
 capped at ten times the UTS. The data reviewed by the Agency on remediation case studies indicate that
 these standards can be readily achieved within 90 days through existing commercial technologies.
 Therefore, the Agency is not granting a national capacity variance for soils contaminated with TC metal
wastes.  See the BOAT and Capacity Analysis Background Documents for additional information.

       Nevertheless, the Agency recognizes that some wastes  could possess unique properties that make
them more difficult to treat than the wastes on which the standards are based. In such cases, the  affected
party may petition the Agency for a treatability variance per 40 CFR 268.44.  For newly  identified wastes
(i.e., wastes that do not fail the EP test, and, consequently,  are not part of the Third Third LDR Rule), the
affected party may also request a capacity variance extension per 40 CFR 268.5 on a case-by-case basis.
Wastes regulated in  the Third Third LDR Rule (i.e., wastes that fail the EP test) are not eligible for
capacity variances because the extension provided in that rulemaking has already expired.

       In addition,  EPA is establishing a new site-specific, risk-based variance for the technology-based
alternative soil treatment standards. This variance can be used  when treatment to concentrations of
                                            Pas?e 136

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Commenter:
Comment Number:
Page Number:
Environmental Technology Council
NODA1 14
13
In its April issue each year, E.I. Digest summarizes the volumes that hazardous waste landfills receive in
the prior year.  This information is reported to E.I.Digest from the facilities or from regulatory agencies.
Table 6 summarizes the volumes received by commercial hazardous waste landfills over the period 1989
through 1994.  These volumes include RCRA, TSCA, State regulated hazardous and non-hazardous
volumes received by these facilities.
                                          TABLE 6
                    ANNUAL VOLUMES, CUBIC YARDS IN THOUSANDS
              RECEIVED BY COMMERCIAL HAZARDOUS WASTE LANDFILLS
YEAR
1989
1990
1991
1992
1993
1994
1995
VOLUME
3,263
3,373
3,350
3,481
3,514
3,639
2,703
NOTE: Information obtained from E.I. Digest April, 1996 Issue
The data show a relatively stable volume received annually by these facilities in the 1989 - 1994 period,
running from 3.26 to 3.64 million tons/year.  The 1995 figure shows a sharp drop to 2.7 million
tons/year.  The April 1996 issue discusses this drop which is almost entirely attributable to a decline in
the amount of remediation waste accepted by these facilities.

It is not likely that the 1.3 million tons of waste for stabilization in 1994 would be materially exceeded in
the near future. Given the large amount of stabilization capacity available, a variance for any TC metal
wastes or TC-contaminated soils is clearly not justified.
                                          Page 135

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Commenter:           Natural Gas Pipeline Company of America
Comment Number:     37
Page Number:         2
The USEPA has stated a "presumption" that the treatment standards for as-generated wastes are
generally inappropriate or unachievable for soils contaminated with hazardous wastes.  Further, USEPA
indicates that their experience is that contaminated soils will generally qualify for a treatability variance
under 40 CFR 268.44. Although the variance is discussed, the variance is not proposed in the rule for
soil contaminated with metals as it is for disposal wells and for soil contaminated with wood preserving
wastes (pg. 43686).  USEPA should formally propose a soil treatability variance for metals in this
rulemaking so that industry will not be technically subject to the Universal Treatment Standards while
the treatment technology is being developed.
                                           Page 138

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hazardous constituents that are greater (i.e., higher) than those specified in the alternative soil treatment
standards is shown to minimize short- and long-term threats to human health and the environment. In
this way, on a case-by-case basis, risk-based LDR treatment standards approved through a variance
process could "cap" the technology-based treatment standards.
Comments

•      Natural Gas Pipeline Company of America (37:2)
•      American Gas Association (86:4-5)
•      Hazardous Waste Management Association (97:17-18)
                                            Pa
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Commenter:           Hazardous Waste Management Association
Comment Number:     97
Page Number:         17-18
Treatment Standards For Newly Listed And Identified Wastes (60 FR 4368(T)

Treatment Standards for Soil Contaminated With Newly Listed Wastes (60 FR 43680)

The Agency is proposing a national capacity variance for soil and debris contaminated with Phase IV
newly listed wastes. HWMA supports this proposal in principal; however, it is not clear whether this
includes D004-D011 newly identified wastes. The Agency states that, "EPA is proposing a national
capacity variance for soil and debris contaminated with Phase IV newly listed wastes" (60 FR 43686).
This statement implies that the capacity variance is for all newly identified Phase IV soil and debris, a
universe which does include D004-D011 newly identified wastes. However, the Agency does not
indicate that this national capacity variance is being granted to D004-DO11 newly identified wastes.
Neither the table in the preamble discussion (60 FR 43686) or proposed §268.30 (60 FR 43694) state that
D004-D011 newly identified wastes are subject to the capacity variance.

D004-D011 newly identified wastes should also be included in this capacity variance based on the logic
for granting the capacity variance for F032, F034, F035, and D004-D011 mixed with radioactive wastes.
The Agency states, "It has been the Agency's experience that contaminated soils are significantly
different in their treatability characteristics from the wastes that have been evaluated in establishing the
BOAT standards, and thus, will generally qualify for a treatability variance for soils	HWMA does
not see any logical reason for not granting this capacity variance for D004-D011 newly identified soil
and debris while granting it for the other waste  streams.
                                           Page 140

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Commenter:           American Gas Association
Comment Number:     86
Page Number:         4-5
NATIONAL CAPACITY VARIANCE

EPA has stated a "presumption" that the treatment standards for as-generated wastes are generally
inappropriate or unachievable for soft with hazardous wastes.  Further, EPA indicates that its experience
is that contaminated soils will generally qualify for a treatability variance under 40 C.F.R. §268.44.
Although this national capacity variance for soil is recommended in the preamble on page 43680 it is not
proposed in the rule for soil contaminated with metals as it is for disposal wells and for soil contaminated
with wood preserving wastes on page 43688. We therefore urge EPA to formally propose a soil
treatability variance for metals in this rulemaking so that industry will not be technically subject to the
UTS while the treatment technology is being developed.
                                           Page 139

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Response

       As discussed in more detail in the previous section, the Agency recognizes the unique issues
associated with remediation waste, including hazardous contaminated soil, and therefore believes that it
is appropriate to establish alternative, less-stringent LDR treatment standards for hazardous soil.
Therefore, in the final Phase IV rule, the Agency has promulgated alternative treatment standards for
hazardous soil, which require that the concentrations of constituents subject to treatment be reduced by
90 percent with treatment for any given constituent capped at ten times the UTS. Because these
standards can be readily met, and because several types of case-by-case variances are available, the
Agency is not providing a national capacity variance.

Comments

       Natural Gas Pipeline Company of America (37:2)
       Chemical Waste Management (48:36-37)
       Hazardous Waste Management Association (97:17-18)
       American Gas Association (86:4-5)
       Safety Kleen (65:6)
       Chemical Manufacturers Association (113:26)
       DuPont Engineering (NODA1 16:1)
       Battery Council International & Association of Battery Recyclers (2SR 17:15)
       Department of Defense (2SR 75:4-5)
                                           Page 142

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3.2.2b A National Capacity Variance Should Be Granted for Soil and Debris Wastes

       Nine commenters [Natural Gas Pipeline Co. of America (37); Chemical Waste Management, Inc.
(48); Hazardous Waste Management Association (97) American Gas Association (86); Safety Kleen
(65); Chemical Manufacturers Association (113); DuPont Engineering (NODA1 16); Battery Council
International & Association of Battery Recyclers (2SR 17); The Department of Defense (2SR 75)] stated
that EPA should grant a national capacity variance for soil and debris wastes.

•      The Natural Gas Pipeline Co. of America noted that EPA should formally propose a soil
       treatability variance for metals so that industry will not be technically subject to the UTS while
       the treatment technology is being developed. (37:2)

•      Chemical Waste Management, Inc and Hazardous Waste Management Association stated that a
       national capacity variance is.needed for soil and debris contaminated with D004-D011 newly
       identified wastes. (48:36-37) (97:17-18)

•      The American Gas Association supports a two-year national capacity variance. (86:4-5)

•      Safety Kleen and the Chemical Manufacturers Association support the variance for soil and
       debris contaminated with Phase IV wastes. (65:6) (113:26)

•      DuPont Engineering stated that it is actively engaged in remediation activities involving metal
       contaminated soils and debris at five locations and has identified more than 100,000 cubic yards
       of potentially impacted soil. Perhaps 50,000 cubic yards of this material will be managed in the
       next few years. Pending implementation of the proposed HWIR-Media Rule, some or all of this
       soil would need to be managed under LDRs. DuPont requested that the Agency grant a variance
       to facilitate remediation. (NODA1 16:1)

•      Battery Council International & Association of Battery Recyclers stated that the amount of
       contaminated soils and debris requiring treatment will be considerably more than EPA's current
       available capacity estimate. For example, the amount of contaminated soils and debris requiring
       treatment at National  Priority List sites alone could approach 21 million tons. This figure does
       not account for the amount of contaminated soils and debris requiring treatment that will be
       generated from RCRA corrective  action cleanups, or state Superfund cleanups. (2SR 17:15)

•      The Department of Defense (DOD) stated that EPA's data evaluation may not have addressed
       the true scope of TC metals contaminated soil and debris containing organic UHCs.  Further
       stated that, based on DOD's remediation experience, it is not atypical for TC metals
       contaminated soils to  have organic UHCs above UTS. Therefore, until EPA establishes the true
       extent of these wastes, DOD believes that EPA should grant a national capacity variance for soil
       and debris that exhibit only a TC metal waste code and contain organic UHCs above UTS. DOD
       also requested EPA to clarify or address  TC metal waste code precedence over organic UHCs for
       the purposes of selecting the appropriate treatment methodology, specifically with regards to
       dilution prohibition issues based on the incineration or stabilization of TC metal waste streams
       with organic UHCs. (2SR 75:4-5)
                                           Page 141  .

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 Commenter:           Chemical Waste Management
 Comment Number:     48
 Page Number:          36-37
The Agency is proposing a national capacity variance for soil and debris contaminated with Phase IV
newly listed wastes.

CWM supports this proposal in principal, however, it is not clear to CWM whether this includes newly
identified newly identified wastes.  The Agency states "EPA is proposing  a national capacity variance for
soil and debris contaminated with Phase IV newly listed wastes." (See 60  Fed. Reg. at 43,686) This
statement implies that the capacity variance is for all newly identified Phase IV soil and debris. This
should include the newly identified D004-D011 wastes. However, upon further review the Agency does
not indicate that this national capacity variance is being granted to D004-D011 newly identified wastes.
Neither the table in the preamble discussion (See 60 Fed. Reg. at 43,686) or proposed 268.30 (See 60
Fed. Reg. at 43,694) indicate that D004-D011 newly identified wastes are  subject to the capacity
variance.

CWM believes that the newly identified D004-D011 wastes should also be included in this capacity
variance, because of the logic that the Agency uses for granting the capacity variance for F032, F034,
F035, and D004-D011 mixed with radioactive wastes. The Agency states  "It has been the Agency's
experience that contaminated soils are significantly different in their treatability characteristics from the
wastes that have been evaluated in establishing the BOAT standards, and thus, will generally qualify for
a treatability variance for soils,....". CWM sees no logical reason for not granting this capacity variance
for these D004-D011 newly identified soil and debris, while granting it for the other waste streams(as in
text). CWM urges the Agency to extend this capacity variance to these D004-D011 wastestreams.
                                            Page 144

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Commenter:           Natural Gas Pipeline Company of America
Comment Number:     37
Page Number:         2
The USEPA has stated a "presumption" that the treatment standards for as-generated wastes are
generally inappropriate or unachievable for soils contaminated with hazardous wastes. Further, USEPA
indicates that their experience is that contaminated soils will generally qualify for a treatability variance
under 40 CFR 268.44. Although the variance is discussed, the variance is not proposed in the rule for
soil contaminated with metals as it is for disposal wells and for soil contaminated with wood preserving
wastes (pg. 43686).  USEPA should formally propose a soil treatability variance for metals in this
rulemaking so that industry will not be technically subject to the Universal Treatment Standards while
the treatment technology is being developed.
                                            Page 143

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Commenter:           American Gas Association
Comment Number:     86
Page Number:         4-5
NATIONAL CAPACITY VARIANCE

EPA has stated a "presumption" that the treatment standards for as-generated wastes are generally
inappropriate or unachievable for soft with hazardous wastes.  Further, EPA indicates that its experience
is that contaminated soils will generally qualify for a treatability variance under 40 C.F.R. §268.44.
Although this national capacity variance for soil is recommended in the preamble on page 43680 it is not
proposed in the rule for soil contaminated with metals as it is for disposal wells and for soil contaminated
with wood preserving wastes on page 43688. We therefore urge EPA to formally propose a soil
treatability variance for metals in this rulemaking so that industry will not be technically subject to the
UTS while the treatment technology is being developed.
                                           Page 146

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Commenter:           Hazardous Waste Management Association
Comment Number:     97
Page Number:         17-18
Treatment Standards For Newly Listed And Identified Wastes (60 FR 43680)

Treatment Standards for Soil Contaminated With Newly Listed Wastes (60 FR 43680)

The Agency is proposing a national capacity variance for soil and debris contaminated with Phase IV
newly listed wastes. HWMA supports this proposal in principal; however, it is not clear whether this
includes D004-D011 newly identified wastes. The Agency states that, "EPA is proposing a national
capacity variance for soil and debris contaminated with Phase IV newly listed wastes" (60 FR 43686).
This statement implies that the capacity variance is for all newly identified Phase IV soil and debris,  a
universe which does include D004-D011  newly identified wastes. However, the Agency does not
indicate that this national capacity variance is being granted to D004-DO11 newly identified wastes.
Neither the table in the preamble discussion (60 FR 43686) or proposed §268.30 (60 FR 43694) state that
D004-D011 newly identified wastes are subject to the capacity variance.

D004-D011 newly identified wastes should also be included in this capacity variance based on the logic
for granting the capacity variance for F032, F034, F035, and D004-D011 mixed with radioactive wastes.
The Agency states, "It has been the  Agency's experience that contaminated soils are significantly
different in their treatability characteristics from the wastes that have been evaluated in establishing the
BDAT standards, and thus, will generally qualify for a treatability variance for soils	HWMA does
not see any logical reason for not granting this capacity variance for D004-D011 newly identified soil
and debris while granting it for the other waste streams.
                                            Page 145

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Commenter:           Chemical Manufacturers Association
Comment Number:     113
Page Number:         26
CMA recommends EPA set the National Capacity Variance effective date and the implementation plan
completion date for a given management standard at two and four years, respectively, after the date that
the given management standard is promulgated.

Finally, CMA agrees that the treatment standards for as-generated wastes are inappropriate for soil and
debris contaminated with hazardous waste. Imposing treatment which is not available in the short term
will delay or interrupt remediation efforts under RCRA corrective action and other remediation and
construction programs.  Further, 90-day generators of hazardous soil and debris would be in jeopardy of
not being able to comply with regulations since treatment alternatives do not exist. The NCV for soil
and debris contaminated with Phase IV listed wastes should be granted for the maximum time allowable.
                                           Page 148

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Commenter:           Safety Kleen
Comment Number:     65
Page Number:         6
13.     Safety-Kleen supports the Agency's intent to provide a national capacity variance for soil
        and debris contaminated with Phase IV newly listed wastes.

Safety-Kleen agrees that the treatment standards for as-generated wastes are inappropriate for soil and
debris contaminated with hazardous wastes.  Imposing treatment that is not available in the short term
will delay or interrupt remediation efforts under RCRA corrective action and other remediation and
construction programs.  In addition, 90-day generators of hazardous waste soils and debris would be in
jeopardy of not-being able to comply with regulations because viable treatment alternatives do not exist.
Safety-Kleen therefore supports granting a national capacity variance for contaminated soil and debris
for the maximum time allowable.
                                            Page 147

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Commenter:          DuPont Engineering
Comment Number:    NODA1 16
Page Number:         1
DuPont is actively engaged in remediation activities involving metal contaminated soils and debris at
five locations and has identified more than 100,000 cubic yards of potentially impacted soil. Perhaps
50,000 cubic yards of this material will be managed in the next few years. Pending implementation of
the recently proposed HWIR-media rule, some or all of this soil would need to managed under LDRS.  In
order to not create impediments to remediation, DuPont requests that the Agency grant a variance
                                               149

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Commenter:           Battery Council International & Association of Battery Recyclers
Comment Number:     2SR 17
Page Number:         15
The amount of contaminated soils and debris requiring treatment will be considerably more than EPA's
current capacity estimate. For example, the amount of contaminated soils and debris requiring treatment
at National Priority List (NPL) sites alone could approach 21,000,000 million tons.[fii28:  See comments
of Battery Council International (Nov. 27,1995) and Association of Battery Recyclers (Nov. 20, 1995)
submitted in response to EPA Land Disposal Restrictions Phase IV proposed rule (60 Fed. Reg. 43,654
(1995))]. This figure does not account for the amount of contaminated soils and debris requiring
treatment that will be generated from RCRA corrective action cleanups, or state Superfund cleanups.

Treating these large quantities of D008 wastes to the proposed treatment standards will place an
enormous burden on the lead recycling industry. It certainly will require much more than the 0.8 to 2.6
million tons of stabilization capacity predicted by the Agency in the proposed Phase IV second
supplemental rule.
                                           Page 150

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Commenter:           Department of Defense
Comment Number:     2SR 75
Page Number:         4-5
DoD is concerned that the data evaluation may not have addressed the true scope of TC metals
contaminated soil and debris that would now be subject to this rulemaking (i.e., contain organic UHCS).
EPA acknowledges this concern by stating in section 3.4 (page 3-7) of the background document "In all
of the data sources consulted by the Agency, there was little information on the amount of soil and debris
that might be contaminated with the newly identified TC metal wastes." Remediation experience within
the Installation Restoration and the Formally Utilized Defense site Programs indicates it is not atypical
for TC metals contaminated soils to have organic UHCs above UTS. Until such time as EPA has
established the true extent of these wastes, DoD believes EPA should grant a national capacity variance
for soil and debris waste streams that exhibit only a TC metal waste code and contain organic UHCs
above UTS.
                                           Page 151

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3.2.2c A Capacity Variance for Soil and Debris Wastes Is Not Justified

       One commenter [Environmental Technology Council (NODA1 14)] stated that a variance for
soil and debris wastes contaminated with TC metals is not justified.

•      The Environmental Technology Council stated that it is not likely that the 1.3 million tons of
       waste for stabilization in 1994 would be materially exceeded in the near future and that given the
       large amount of stabilization capacity available, a variance for TC-contaminated soils is clearly
       not justified. (NODA1 14:13)

Response

       The Agency recognizes the unique issues associated with remediation waste, including
hazardous contaminated soil, and therefore believes that it is appropriate to establish alternative, less-
stringent LDR treatment standards for hazardous soil. Therefore, in the final Phase IV rule, the Agency
has promulgated alternative treatment standards for hazardous soil, which require that the concentrations
of constituents subject to treatment be reduced by 90 percent with treatment for any given constituent
capped at ten times the UTS.  Because these standards can be readily met, the Agency is not providing a
capacity variance.

Comments

•      Environmental Technology Council (NODA1 14:13)
                                            Page 152

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 Commenter:
 Comment Number:
 Page Number:
Environmental Technology Council
NODA1 14
13
 In its April issue each year, E.I. Digest summarizes the volumes that hazardous waste landfills receive in
 the prior year. This information is reported to E.I.Digest from the facilities or from regulatory agencies.
 Table 6 summarizes the volumes received by commercial hazardous waste landfills over the period 1989
 through 1994. These volumes include RCRA, TSCA, State regulated hazardous and non-hazardous
 volumes received by these facilities.
                                          TABLE 6
                    ANNUAL VOLUMES, CUBIC YARDS IN THOUSANDS
               RECEIVED BY COMMERCIAL HAZARDOUS WASTE LANDFILLS
YEAR
1989
1990
1991
1992
1993
1994
1995
VOLUME
3,263
3,373
3,350
3,481
3,514
3,639
2,703
NOTE: Information obtained from E.I. Digest April, 1996 Issue
The data show a relatively stable volume received annually by these facilities in the 1989 - 1994 period,
running from 3.26 to 3.64 million tons/year.  The 1995 figure shows a sharp drop to 2.7 million
tons/year.  The April 1996 issue discusses this drop which is almost entirely attributable to a decline in
the amount of remediation waste accepted by these facilities.

It is not likely that the 1.3 million tons of waste for stabilization in 1994 would be materially exceeded in
the near future. Given the large amount of stabilization capacity available, a variance for any TC metal
wastes or TC-contaminated soils is clearly not justified.
                                           Page 153

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3.2.3   Mixed Radioactive Wastes

3.2.3a  Clarification Is Required for the Applicability of the Two-Year Capacity Variance for
        Mixed Radioactive Wastes

        Two commenters [Department of Energy (31 and 2SR23); Westinghouse Electric Corporation
(56)] requested clarification on the applicability of the two-year capacity variance for mixed radioactive
wastewaters and non-wastewaters.

•      The Department of Energy and Westinghouse requested clarification on the effective date of the
        proposed treatment standards for mixed/RCRA radioactive wastewaters and non-wastewaters
        contaminated with wastes that will be subject to the Phase IV LDR.  They would like to know if
        these treatment standards will go into effect after the Phase IV  rulemaking or after the expiration
        of the two-year capacity variance. They believe the latter scenario should apply because time is
        needed for the market to develop mixed waste treatment capacity to comply with the Phase IV
        rule. (31:35; 2SR 23:2; 56:6)

        One commenter [Westinghouse Electric Corporation (56)] requested additional clarification
regarding the variance for D004-D011 wastes.

•      Westinghouse also requested  clarification on the applicability of the two-year capacity variance
        for mixed radioactive wastewaters and non-wastewaters classified as D004-D011  wastes. They
        believe EPA should clarify whether the capacity variance applies only to the D004-D011 wastes
        which fail the TCLP. (56:7)

Response

        The Agency is promulgating treatment standards for metal-bearing and newly identified mineral
processing mixed radioactive wastes at the UTS levels in the final Phase IV rule. However, the Agency
recognizes the lack of available treatment and disposal capacity for these wastes, and therefore is
granting a two-year national capacity variance to radioactive wastes mixed with newly identified TC
metal wastes (i.e., wastes that pass the Extraction Procedure (EP) but fail the TCLP) or with newly
identified mineral processing wastes, including  soil and debris.  These  newly identified  wastes are the
only significantly affected wastes that are eligible for a capacity variance. Other wastes, such  as Third
Third characteristic metal mixed wastes, can continue to be treated to existing treatment standards (e.g.,
TC levels) only until the effective date of the Phase IV rule. This is in  keeping with the language of
section 3004(h)(l), which states that prohibitions (and by extension, the treatment standards that are
issued along with prohibitions) are to take effect immediately, or as soon as protective treatment capacity
is available. Thus, untreated wastes, other than  newly identified TC metal and mineral processing
wastes, must be treated to meet Phase IV standards 90 days after the  publication of this  rule. Those
characteristic metal mixed radioactive wastes that had been stabilized prior to this effective date to meet
the LDR requirements in effect at the  time of treatment, and that are  being or will be stored until disposal
capacity becomes available, are not required to undergo further treatment to comply with the newly
promulgated treatment standards.

Comments

•       Department of Energy (31:35)
•       Department of Energy (2SR 23:2)
•       Westinghouse Electric Corporation (56:6)
•       Westinghouse Electric Corporation (56:7)

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 Commenter:         Department of Energy
 Comment Number:   31
 Page Number:        35
 VIIIB.5   Mixed Radioactive Wastes

 1.     p. 43686. col.l ~ EPA states that any new commercial capacity that becomes available will
 be needed for mixed radioactive wastes that were regulated in previous LDR rulemakings and
 whose variances have already expired.  Therefore, EPA is proposing to grant a two-year national
 capacity variance for mixed RCRA/radioactive wastewaters and nonwastewaters contaminated
 with wastes whose standards are being addressed in the LDR Phase IV proposed rule.

 a.     DOE agrees with EPA's assessment that, regardless of the volume of mixed  radioactive wastes
 that will require treatment for the first time as a result of the LDR Phase IV rule, there will be
 inadequate capacity to manage such additional mixed waste streams.  Therefore, the Department
 supports EPA's proposal of a two-year national capacity variance for such mixed wastes.

 b.     EPA is proposing a two-year national capacity variance for "mixed RCRA/radioactive
 wastewaters and nonwastewaters contaminated with wastes whose standards are being proposed today"
 (i.e., Phase IV Mixed Radioactive Wastes).  Assuming that the two year national capacity variance
 proposed in 40 CFR 268.30(b) applies to characteristic metal mixed wastes whose treatment standards
 will be lowered by the LDR Phase IV rule, DOE requests that EPA clarify whether the exemption of
 previously stabilized characteristic metal mixed wastes from the LDR Phase IV treatment standards will
 apply to characteristic metal mixed wastes stabilized before the date on which the national capacity
 variance ends, or only to characteristic metal mixed wastes stabilized before the date which is 90 days
 from the date of publication of the LDR Phase IV final rule in the Federal Register. DOE favors the
'granting of a two-year national capacity variance for RCRA nonwastewaters consisting  of toxicity
 characteristic metal waste mixed with low levels of radioactive waste.
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Commenter:          Department of Energy
Comment Number:    2SR 23
Page Number:        2
c.      DOE is particularly concerned that the final Phase IV compliance exception for previously
treated characteristic metal mixed wastes be appropriately codified. Therefore, DOE suggested the
following possible regulatory language in its comments in response to the Phase IV proposed rule,[FN2:
DOE Comments, Land Disposal Restrictions —Phase IV: Issues Associated with Clean Water Act
Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity
Characteristic Metal Wastes, Specific Comment V.D.3, Item 1, p. 34 (Nov. 20, 1995).]  and continues to
advocate that this or similar language be added to 40 CFR 268.30(d) [as proposed at 60 FR 43654,
43694; Aug. 22, 1995].

       §268.30       Waste specific prohibitions — wood preserving wastes, and characteristic wastes
                     that fail the toxicity characteristic.
                     (d)     The requirements of paragraphs (a) and (b) of this section do not apply
                            if:
                            (5)    The wastes are radioactive wastes mixed with or containing
                                   D004 -D011 wastes, which have been treated to meet Subpart D
                                   treatment standards in effect prior to [insert effective date of
                                   Phase IV regulations (including any applicable national capacity
                                   variance) for radioactive wastes mixed with D004 - D011].
                                   Such wastes must have been treated prior to [insert effective
                                   date of Phase IV regulations (including any applicable national
                                   capacity variance) for radioactive wastes mixed with D004 -
                                   D011] to be excluded from application of paragraph (b).
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Commenter:         Westinghouse Electric Corporation
Comment Number:   56
Page Number:       6
Westinghouse requests clarification of the two year capacity variance for mixed
RCRA/radioactive wastewaters and nonwastewaters contaminated with wastes that will be
subject to the Phase IV LDR. Specifically, is mixed waste that is stabilized after the effective
date of the final Phase IV LDR rulemaking (expected to be in 1996), but before the expiration of
the proposed national capacity variance (expected to be in 1998), subject to the proposed Phase
IV treatment standards or to the treatment standards in  effect prior to the promulgation of the
Phase IV rules? It is our interpretation that the latter scenario will apply. In other words, the
new Phase IV treatment standards for mixed waste will not go into effect until after the
expiration of the national capacity variance in 1998. This would presumably provide sufficient
time for the market place to develop mixed waste treatment capacity that would comply with the
Phase IV LDR standards.
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Commenter:        Westinghouse Electric Corporation
Comment Number:  56
Page Number:      7
We also request clarification of the two year national capacity variance for mixed radioactive
wastewaters and nonwastewaters classified as D004-D011 wastes. Is the capacity variance for
D004-D011 wastes which fail the TCLP only? In the Phase III rule under the waste description
and treatment regulatory - subcategory for the D004-DO11 wastes, it clarified which test the
toxicity characteristic was based on.  In Phase IV, this clarification has been removed from
§268.40, Treatment Standards for Hazardous Wastes. This could create confusion in the
regulated community as to which wastes are covered by the two year capacity variance. A
suggested remedy would be to add the wording from the Phase III rule to the §268.40,
Treatment Standards for Hazardous Wastes that includes the clarification on whether to base the
determination on EP or TCLP.
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3.2.3b National Capacity Variance Is Needed for Phase IV Mixed Radioactive Wastes

       Many commenters [New York Department of Environmental Conservation (13); Utilities Solid
Waste Activities Group (35); Association of State and Territorial Solid Waste Management Officers
(89); Chemical Manufacturers Association (113); Department of Energy (31);  Molten Metal (49);
Westinghouse (56)] agree with EPA's assessment that inadequate capacity exists for the treatment of
mixed radioactive wastes. A few commenters [DOE (31); US WAG (35); Molten Metal (49)]
specifically state their support of a two-year national capacity variance for characteristic metal mixed
waste.
•     The New York Department of Environmental Conservation stated that disposal capacity
      inadequacy for mixed wastes has been and continues to be a major problem for LDR compliance.
      (13:2)

•     Utilities Solid Waste Activities Group stated that it supports the proposed two-year capacity
      variance for the disposal of TC metal mixed wastes due to the current lack of disposal capacity
      for this waste stream. (35:15)

•     The Association of State and Territorial Solid Waste Management Officers stated that disposal
      capacity inadequacy for mixed wastes continues to be a major problem for LDR compliance.
      (89:5-6)

•     The Chemical Manufacturers Association stated that capacity has not been available for the land
      disposal of radioactive wastes. (113:43)

•     The Department of Energy stated that it supports EPA's proposal of a two-year national capacity
      variance for mixed wastes because there will be inadequate capacity to manage these wastes.
      (31:35)

•     Molten Metal Technologies stated that currently there is a shortage of available capacity for
      mixed radioactive wastes and, therefore, it does not question the need for, or oppose granting of,
      mixed waste capacity variances. However, the  commenter strongly urged EPA to condition such
      variances upon a commitment to deploy and use technology which can address both the RCRA
      and radiologic hazards posed by mixed wastes and realistically can be sited and permitted.
      (49:2-4)

•     Westinghouse stated that there is lack of treatment and disposal capacity for mixed  wastes.
      (56:5-6)
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Response
      The Agency thanks the commenters for their support for the granting of a two-year national
capacity variance for mixed radioactive wastes.
Comments
      New York Department of Environmental Conservation (13:2)
      Utilities Solid Waste Activities Group (35:15)
      Association of State and Territorial Solid Waste Management Officers (89:5-6)
      Chemical Manufacturers Association (113:43)
      Department of Energy (31:35)
      Molten Metal (49:2-4)
      Westinghouse (56:5-6)
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Commenter:          New York Department of Environmental Conservation
Comment Number:    13
Page Number:        2
III. Previously Treated Mixed Toxic Characteristic Metal Wastes (CMW)

DEC agrees with the proposed handling of previously treated mixed wastes, contaminated with
characteristic metals.  Mixed wastes that have met the applicable standard at the time they were treated
should be considered in compliance even if the standards were to change before actual disposal takes
place.  Disposal capacity inadequacy for Mixed wastes has been and continues to be a major problem
for LDR. compliance.  The retreatment of previously stabilized mixed wastes to address new standards
for CMW will benefit no one while increasing the dangers of handling these wastes.
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Commenter:          Utilities Solid Waste Activities Group
Comment Number:    35
Page Number:        15
IV.   USWAG SUPPORTS THE PROPOSALS FOR THE MIXED WASTE LAND
      DISPOSAL AND CAPACITY VARIANCES.

USWAG agrees with EPA's proposal to allow TC-metal mixed wastes to be land disposed if they were
stabilized to meet existing LDR standards prior to the effective date of the Phase IV rule, but will not
actually be land disposed until after the Phase IV rule is finalized.  Id. at 43683.  As EPA has reasoned,
subjecting such wastes to retreatment under the UTS standards would unnecessarily expose workers to
significant health risks while affording little additional protection to human health and the environment.

In addition, USWAG supports the proposed two year capacity variance for the disposal of TC-metal
mixed wastes due to the current lack of disposal capacity for this wastestream. Id. at 43686.  USWAG
agrees with EPA that the dearth of mixed waste disposal capacity necessitates such a variance from the
LDR treatment requirements, and requests that the Agency express its willingness to grant additional
variances in the event that disposal options remain limited in the future.
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Commenter:          Association of State and Territorial Solid Waste Management Officers
Comment Number:    89
Page Number:        5-6
11.    The proposed handling of previously treated mixed wastes contaminated with characteristic
metal is suitable.  Mixed wastes that have met the applicable standard at the time they were treated
should be considered in compliance even if the standards were to change before actual disposal takes
place.  This is consistent with the Storage Prohibition [40 CFR 268.50(e)], where wastes that have met
the applicable treatment standards are excluded from the storage prohibition. Disposal capacity
inadequacy for mixed wastes continues to be a major problem for LDR compliance.  The retreatment of
previously stabilized mixed wastes to address new standards for characteristic metal waste will benefit
no one while increasing the dangers of handling these wastes.
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Commenter:          Chemical Manufacturers Association
Comment Number:    113
Page Number:        43
C.    The treatment standards for previously stabilized mixed radioactive and
      characteristic metal wastes should not be changed.

      As the Agency points out, to require more stringent treatment standards for radioactive wastes
that have been previously stabilized could increase threat to human health and the environment.
Knowing this and taking into consideration that the only reason these wastes have not already been land
disposed is that capacity has not been available makes it quite reasonable and, in fact necessary, for the
Agency to accept those LDR standards which existed at the time of stabilization for these mixed wastes
that have been stabilized "pre Phase IV" standards.
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Commenter:         Department of Energy
Comment Number:   31
Page Number:        35
VIIIB.5      Mixed Radioactive Wastes

1.     p. 43686. coi.l — EPA states that any new commercial capacity that becomes
      available will be needed for mixed radioactive wastes that were regulated in
      previous LDR rulemakings and whose variances have already expired. Therefore,
      EPA is proposing to grant a two-year national capacity variance for mixed
      RCRA/radioactive wastewaters and nonwastewaters contaminated with wastes
      whose standards are being addressed in the   LDR Phase IV proposed rule.

a.     DOE agrees with EPA's assessment that, regardless of the volume of mixed radioactive wastes
that will require treatment for the first time as a result of the LDR Phase IV rule, there will be
inadequate capacity to manage such additional mixed waste streams.  Therefore, the Department
supports EPA's proposal of a two-year national capacity variance for such mixed wastes.
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Commenter:          Molten Metal
Comment Number:    49
Page Number:        2
2.     THE AGENCY SHOULD REQUIRE THE USE OF TECHNOLOGIES OR
      TECHNIQUES THAT EFFECTIVELY ADDRESS AND MINIMIZE ALL THE
      HAZARDS POSED BY MIXED WASTES, INCLUDING RADIOACTIVE
      HAZARDS.

Mixed waste, like most hazardous waste, is subject to the LDR regulations.  The LDR regulations
require that hazardous waste be treated to specified standards prior to land disposal.  If there is
insufficient treatment capacity to treat a  particular waste, EPA may grant a "capacity variance" for up to
three years. With few exceptions, EPA has not established specific treatment standards for mixed
wastes, but rather has specified that the LDR treatment standard for a given hazardous waste applies to
the hazardous component of a mixed waste.

Over the years, EPA has regularly issued capacity variances for mixed wastes. In 1990, EPA granted a
two year national capacity variance for radioactive waste mixed with most hazardous waste. This
variance was subsequently extended for  one year but has now expired.  Another capacity variance was
granted in August 1994, as part of the LDR "Phase II" rulemaking.  At that
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Commenter:          Molten Metal
Comment Number:    49
Page Number:         3
time, EPA noted that "DOE is in the process of increasing its capacity to manage mixed
RCRA/radioactive wastes" but that a "significant capacity shortfall currently exists." Continuing the
pattern, EPA proposed another capacity variance in the Phase III rulemaking (see 60 Fed. Reg. 11702,
11734 (March 2, 1995)), and is now proposing to grant a two-year national capacity variance to
radioactive waste mixed with hazardous wastes affected by the Phase IV rulemaking.  See 60 Fed. Reg.
at 43686.

The traditional technologies that can comply with the LDR standards (e.g., incineration and
combustion) are considered to be mature, demonstrated technologies that have been "available" for
treatment of hazardous wastes for many years. Nevertheless, as a practical matter, these treatment
technologies have not been successfully applied on a large scale to mixed waste. As a result of the lack
of suitable treatment capacity, most mixed waste is currently in storage facilities awaiting treatment,
which is not permissible under RCRA. This mixed waste storage dilemma was one of the significant
drivers leading to enactment of the  Federal Facility Compliance Act, which obligates the Department of
Energy to develop mixed waste treatment plans and develop mixed waste treatment capacity.

MMT does not understand why EPA apparently continues to believe that traditional treatment
technologies such as incineration and combustion are appropriate or realistically will ever be available
for mixed waste. There are significant technical, political, and regulatory difficulties associated with
these technologies.  From a technical standpoint, they do not address or minimize radiological hazards.
In fact, they typically disperse radioactive constituents into the air, and create a radioactive ash that
requires further treatment prior to disposal as a mixed waste. Also, combustion technologies are
meeting with increasing public opposition and EPA, state and local regulatory agencies are
implementing programs and policies designed to encourage the use of alternatives to combustion for
treatment of hazardous waste (see, e.g., EPA's "Hazardous Waste Combustion Strategy"). When
attempts are made to apply combustion technologies to mixed waste, these political and regulatory
difficulties are likely to intensify, and MMT does not believe that these technologies can be relied upon
to provide any significant treatment capacity for mixed waste.

There is no reasonable basis for assuming that traditional combustion technologies will in the
foreseeable future provide adequate or appropriate treatment capacity for mixed waste. Thus, the
continuing practice of granting capacity variances amounts to little more than a holding action which
will not allow time for mixed waste combustion  capacity to develop, but rather just delays the time
when it will become obvious that these wastes must be treated using new, innovative technologies that
specifically address and minimize all the hazards presented by mixed waste, including radioactive
hazards.  MMT therefore urges EPA to reconsider its practice of assuming that
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Commenter:          Molten Metal
Comment Number:    49
Page Number:        4
LDR requirements for mixed waste can be achieved by using traditional hazardous waste treatment
technologies to treat the hazardous portion of mixed waste, and instead identify and designate as BOAT
those technologies which address and effectively minimize all the hazards presented by mixed waste,
including radioactive hazards.

MMT recognizes that the needs of DOE and others who currently store mixed waste because of the
current shortage of available capacity must be responsibly addressed in accordance with current laws
and regulations. Thus, at this time MMT does not question the need for, or oppose the granting of,
mixed waste capacity variances. However, MMT strongly urges EPA to condition such variances upon
a commitment to deploy and use technology which can address both the RCRA and radiologic hazards
posed by mixed waste and realistically can be sited and permitted.
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 Commenter:          Westinghouse
 Comment Number:   56
 Page Number:        5-6
 Issue 4:  Treatment Standard for Previously Stabilized Mixed Radioactive and
 Characteristic Metal Wastes

 Reference:    Preamble at Section V.D.3., page 43683
Westinghouse supports the EPA proposal to exempt characteristic metal mixed waste from the Phase IV
LDR treatment standards if the mixed waste was stabilized prior to the effective date of the Phase IV
LDR final rulemaking and if the stabilized waste complies with the LDR treatment standards that were
effect when the waste was stabilized.

However, this proposal should be expanded to include all previously stabilized characteristic and listed
mixed wastes that met the standards in effect at the time of treatment but, due to regulatory changes,
may no longer meet the standards. The same rationale used to justify the West Valley example
provided in the preamble would apply to other characteristic and listed mixed wastes that have been
previously stabilized; opening drums, grinding already treated masses of mixed waste to treat them
again.(as in text) could expose workers to unnecessary and unacceptable levels of dust containing
metals, organics and radioactivity without a commensurate environmental benefit.

An example would be ash that has been stabilized from an incinerator that burns listed/ characteristic
mixed waste.  At the Savannah River Site (SRS), which is managed by Westinghouse on behalf of the
Department of Energy (DOE), the Consolidated  Incineration Facility (GIF) generates ash and blowdown
residues. The stabilization unit (called the ashcrete unit) treats the ash and blowdown to meet the LDR
treatment standards, producing an average of about 100 drums of stabilized waste monthly.  This mixed
waste is being stored in RCRA storage facilities  until RCRA Subtitle C  disposal vaults can be built. It
is possible that waste generated prior to Phase IV promulgation may not meet the Phase IV
requirements; (or future unknown requirements) thus possibly prohibiting disposal of the stabilized
waste without further treatment. Additionally, with the evolution of the land disposal restrictions
program, it is possible to have standards change  numerous times prior to final disposal. Treatment and
disposal capacity for mixed waste is already lacking, and constantly changing standards will only makes
matters worse. We support expansion of the concept that wastes treated to meet current standards will
not have to be further treated if standards change prior to disposal.
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3.3    Other Issues

3.3.1   EPA Underestimated the Effects of the Proposed Phase IV LDR Rule on TC Metal  Wastes

       Two commenters [Steel Manufacturers Association (83); Specialty Steel Industry of North
America (84)] stated that in EPA's capacity analysis supporting the original Phase IV proposed rule
underestimated the effects of the rule on TC metal wastes by assuming that these wastes will not require
additional treatment in order to meet the proposed treatment standards.

•      Steel Manufacturers Association and Specialty Steel Industry of North America stated that EPA
       failed to address the additional capacity requirements necessary to handle the TC metal wastes
       that must be treated to meet more stringent treatment standards under the Phase IV LDRs. The
       commenters noted that, in the capacity analysis for the original Phase IV proposed rule, the
       Agency asserted that it "does not expect that TC metal wastes that are currently subject to the
       LDR treatment standards promulgated in the Third Third rule will require any additional
       treatment in order to meet the proposed treatment standards."  However, the Third Third final
       rule established treatment standards for TC metal wastes at levels much higher than those
       proposed for the Phase IV LDR. Thus, additional treatment will be required in order to meet
       what the Agency clearly described as more stringent standards. (83:9; 84:9)
Response

      In the capacity analysis for the original Phase IV proposed rule (60 FR 43654, August 22, 1995),
EPA presented an analysis of the only data that had been submitted to the Agency in response to an
Advance Notice of Proposed Rulemaking (ANPR) on LDRs for newly identified TC metal wastes (56
FR 55160, October 24, 1991). Only one commenter had provided data on TC metal wastes that would
not fail the EP. Subsequent to that analysis, the Agency has collected additional data. In its capacity
analysis for today's rulemaking, the Agency has determined that technologies used to treat TC metal
wastes to the point of removing the hazardous characteristic can also be  used to meet the UTS standards
for most wastes.  To meet UTS standards, the treatment system would only require minor modifications
and/or optimization. EPA's analysis shows that most TC metal wastes are already meeting treatment
standards or will  meet treatment standards once the treatment formulations and systems are optimized.
Therefore, EPA believes that there is adequate capacity to treat TC metal wastes affected by today's
rulemaking and determined that no capacity variance is required for these wastes.  (See the  BDAT and
Capacity Analysis Background Documents for additional details.)
Comments

•     Steel Manufacturers Association (83:9)
•     Specialty Steel Industry of North America (84:9)
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Commenter:          Steel Manufacturers Association
Comment Number:    83
Page Number:        9
B.     The Agency Misunderstands and Underestimates the Effects of the Proposed LDR Phase IV
       Rule on TC Metal Wastes

The Agency's Capacity Analysis demonstrates a dramatic misunderstanding of the anticipated effect of
the proposed LDR Phase IV rule on TC metal wastes.  For example, the Agency fails to address the
additional capacity requirements necessary to handle the TC metal wastes that must be treated to meet
more stringent treatment standards under LDR Phase IV. Instead, the Agency asserts that it "does not
expect that TC metal wastes that are currently subject to the LDR treatment standards promulgated in
the Third-Third rule will require any additional treatment in order to meet the proposed treatment
standards." Id. This analysis is seriously flawed. The Third-Third final rule established treatment
standards for TC metal wastes at levels much higher than those being proposed in LDR Phase IV. It is
absurd to think additional treatment would not be required in order to meet what the Agency has clearly
described as more stringent standards. Ample data are presented in the rulemaking record to provide
evidence of the need for many wastes to undergo additional treatment in order to meet the proposed
treatment standards.  See, e.g., Proposed BDAT Background Document for TC Metal Wastes D004-
D011 (July 26, 1995) at A-13 to A-27.
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Commenter:          Specialty Steel Industry of North America
Comment Number:    84
Page Number:        9
B.    The Agency Misunderstands and Underestimates the Effects of the Proposed LDR Phase
      IV Rule on TC Metal Wastes

The Agency's Capacity Analysis demonstrates a dramatic misunderstanding of the anticipated effect of
the proposed LDR Phase IV rule on TC metal wastes.  For example, the Agency fails to address the
additional capacity requirements necessary to handle the TC metal wastes that must be treated to meet
more stringent treatment standards under LDR Phase IV. Instead, the Agency asserts that it "does not
expect that TC metal wastes that are currently subject to the LDR treatment standards promulgated in
the Third-Third rule will require any additional treatment in order to meet the proposed treatment
standards." Id. This analysis is seriously flawed.  The Third-Third final rule established treatment
standards for TC metal wastes at levels much higher than those being proposed in LDR Phase IV. It is
absurd to think additional treatment would not be required in order to meet what the Agency has clearly
described as more stringent standards. Ample data are presented in the rulemaking record to provide
evidence of the need for many wastes to undergo additional treatment in order to meet the proposed
treatment standards. See, e.g., Proposed BDAT Background Document for TC Metal Wastes D004-
D011 (July 26, 1995) at A-13 to A-27.
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 3.3.2  The Proposed UTS Level for Antimony Will Significantly Reduce Useful Life of On-Site
       Hazardous Waste Landfills

       One commenter [Eastman Chemical Company (2SR 81)] stated that compliance with the
 proposed UTS level for antimony will significantly reduce the life of its on-site hazardous waste
 landfills and require the construction of new landfill capacity much sooner than if the current UTS
 standard is maintained.

 •     Eastman Chemical Company stated that it would have to stabilize the ash from its hazardous
       waste incinerators at its Tennessee and Texas facilities to comply with the proposed antimony
       UTS. The result of stabilization simply to comply with the proposed antimony standard will
       significantly reduce the life of Eastman's on-site hazardous waste landfills and require the
       construction of new landfill capacity much sooner than if the current UTS standard is
       maintained. At a time when the Agency and industry are working so hard to minimize the
       amount of waste that is generated, especially hazardous waste, the Agency should not
       inadvertently increase hazardous waste generation by promulgating a UTS level that provides no
       off-setting environmental benefits. (2SR 81:3)

Response

       As discussed in Section 2.1.1, the treatment standards were determined based on treatment
performance data from wastes that EPA believes is representative of metal-bearing hazardous wastes.
The Agency also believes that the treatment standards should be based on the most difficult-to-treat
wastes. To demonstrate the treatability of TC metal wastes to the UTS using existing stabilization and
HTMR technologies, the Agency analyzed additional stabilization and HTMR treatment performance
data that better represent the diversity of metal wastes. The Agency has determined that the antimony
treatment standard (0.07 mg/1) proposed in the  second supplemental Phase  IV proposal (62 FR 26041,
May 12,  1997) does not represent BOAT for the most difficult-to-treat waste. Therefore, the Agency
fias re-calculated the BDAT treatment standard for antimony at 1.15 mg/1.  (See the BOAT Background
Document for additional details.)

       Regarding landfill  capacity, the Agency does not expect a substantial increase in required
capacity  in  terms of volume and therefore believes that sufficient landfill capacity exists for TC metal
wastes. (See EPA's Capacity Assurance Plan (CAP) Report for additional  information on landfill
capacity.)

       The  Agency notes that if a situation exists in which the waste is unique in that it possesses
properties making it difficult to treat, the affected party may petition the Agency for a treatability
variance  as per 40 CFR 268.44. For newly identified  wastes (i.e., wastes that do not fail the EP test,
and, consequently, are not part of the Third Third LDR Rule), the affected party may also request a
capacity variance  extension per 40 CFR 268.5 on a case-by-case basis. Wastes regulated in the Third
Third LDR Rule (i.e., wastes that fail the  EP test) are  not eligible for capacity variances because the
extension provided in that rulemaking has already expired.

Comments

•      Eastman Chemical Company (2SR 81:3)


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Commenter:          Eastman Chemical Company
Comment Number:    2SR 81
Page Number:        3
As is discussed in the previous comment, Eastman would likely have to stabilize the ash from its
hazardous waste incinerators at its Tennessee and Texas facilities in order to comply with the proposed
antimony UTS. Because the sole purpose for stabilization would be compliance with the antimony
standard and because flyash is readily available at both Eastman facilities, flyash/cement-based
stabilization would likely be the process utilized. Data indicate that cement-based stabilization is
effective for heavy metals (i.e., arsenic, lead, zinc, copper, cadmium, and nickel). However, in addition
to the costs and permitting burdens discussed above, this action would likely increase the volume of ash
that has to be managed as a hazardous waste by IO% to 20% due to the addition of stabilizing agents
(FN: 1). The result of stabilization simply to comply with the proposed antimony standard will
significantly reduce the life of Eastman's on-site hazardous waste landfills and require the construction
of new landfill capacity much sooner than if the current UTS standard is maintained. Not only is this
costly for Eastman, but it results in valuable commercial land space being consumed by a landfill. At a
time when the Agency and industry are working so hard to minimize the amount of waste that is
generated, especially hazardous waste, the Agency should not inadvertently increase hazardous waste
generation by promulgating a UTS level that provides no off-setting environmental benefit.
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                                         CHAPTER 4
                            MINERAL PROCESSING WASTES
        Over 19 commenters addressed a range of issues related to available or required commercial
treatment capacity for the newly identified mineral processing wastes. Specifically, .commenters
addressed the appropriateness of a national capacity variance from Phase IV LDRs for mineral
processing wastes, characteristic arsenic and high mercury containing waste,  soil contaminated with
newly identified mineral processing wastes, manufactured gas plant (MGP) remediation wastes, and
other newly identified mineral processing wastes.
4.1     Estimates of Required Capacity

4.1.1   Companies Cannot Predict Whether On-Site or Off-Site Capacity Will Be Needed

        One commenter [National Mining Association (NODA1 5)] stated that mineral processing
facilities cannot predict whether on-site or off-site treatment capacity will be needed to comply with the
proposed treatment standards.

•       The National Mining Association (NMA) stated that the regulatory status of mineral processing
        wastes is uncertain, and therefore many companies are unable to identify and quantify their
        wastes in response to EPA's requests. Consequently, mineral processing facilities cannot predict
        whether, or to what extent, on-site or off-site treatment capacity will be needed to ensure
        compliance with the yet-to-be promulgated LDR treatment standards. (NODA1 5:1-2,2)

Response

        The Agency has clarified the regulatory status of mineral processing wastes in the second
supplemental proposed rule (62 FR 26041, May 12, 1997). Furthermore, the Agency has estimated the
amount of wastes that would be affected by the Phase IV rule under the various possible regulatory
options and compliance scenarios. (Refer to Chapter 4 of the Capacity Analysis Background Document
for a discussion of the options and the waste volumes affected by this rule.)  EPA had based its required
capacity analysis on the worst case scenario to account for the differences in the options, and does not
expect any significant variations in the overall required capacity. However, the Agency notes that if a
particular waste, generated either currently or in the future, is unique and that adequate treatment
capacity is not available, the affected party may petition the Agency for a case-by-case capacity variance
as per 40 CFR 268.5. A treatability case-by-case  variance is also available as per 40 CFR 268.44.

Comments

•       National Mining Association (NODA1  5:1-2,2)
                                           Pa
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Commenter:           National Mining Association
Comment Number:     NODA1 5
Page Number:         1-2
In the Notice of Data Availability, EPA requests that the mineral processing industry supply
"information on quantities of characteristic mineral processing wastes" in order to support a potential
national capacity variance for such wastes. 61 Fed. Reg. at 21,422.  As discussed in NMA's April 24,
1996 comments in response to the January 25 Supplemental Phase IV Proposal, however, EPA must
recognize that its decision to "put in play" virtually all aspects of the RCRA Subtitle C hazardous waste
program as it relates to the regulatory status of non-Bevill mineral processing wastes has made the
provision of the requested information impossible for many, if not most, industry sectors and many
mineral processing companies.
                                           Page 176

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Commenter:           National Mining Association
Comment Number:    NODA1  5
Page Number:         2
The definition of solid waste, which is the key jurisdictional underpinning of RCRA Subtitle C, has been
proposed by EPA for revision as it applies to mineral processing wastes.  The proposed changes could
result in the regulation of previously unregulated materials (i.e., characteristic sludges and byproducts)
that otherwise would not be subject to Subtitle C regulation, including the LDR program. Moreover, two
key determinants of whether a mineral processing waste is subject to regulation as a hazardous waste
(including the LDR program) - the toxicity characteristic and the Bevill mixture rule ~ also are open for
comment in this rulemaking. To compound further the regulatory uncertainty surrounding the status of
mineral processing residues under the LDR program, EPA's proposed rule threatens to alter the-
previously established boundary between beneficiation wastes (all of which are covered by the Bevill
Amendment) and processing wastes (only 20 of which are covered by the Bevill Amendment).

Under these circumstances, mineral processing facilities cannot predict whether, and to what extent, on-
site (or off-site) treatment capacity will be needed to ensure compliance with the yet-to-be promulgated
LDR treatment standards (much less determine whether off-site capacity, even if available, will be
feasible to utilize). The identity, nature, and volumes of mineral processing wastes subject to the Phase
IV rule simply cannot be determined until EPA renders its final decisions concerning the jurisdictional,
hazardous waste identification, and other issues opened for comment in its January 25 proposal.
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4.1.2   Calcining Wastes from Elemental Phosphorus Production Should Be Subject to RCRA

        One commenter [Shoshone-Bannock Tribe Land Use Department (2SR 107)] stated that the
calcining wastes associated with the FMC elemental phosphorus industry should be subject to RCRA
regulations.

•       Shoshone-Bannock Tribe Land Use Department stated that FMC's Pocatello facility generated
        about 22,000 tons per year of precipitator dust that contains high levels of selenium, vanadium,
        and zinc, and these metals should be removed prior to final land placement.  Also stated that the
        calcining wastes associated with the FMC elemental phosphorus industry are medium
        volume/high toxicity wastes and exceed TCLP values for several metals including cadmium,
        selenium, and arsenic and should be subject to RCRA regulations. (2SR 107:1,2)

Response

        The Agency notes that the precipitator dust generated by FMC's Pocatello facility is considered
hazardous waste and is subject to RCRA LDR regulations.  However, FMC has requested a capacity
variance due to the unique characteristics of this waste (e.g., naturally occurring radioactive material)
and the lack of adequate treatment capacity. After careful review of FMC's petition, the Agency has
determined that the precipitator dust, along with the other four waste streams (Medusa scrubber
blowdown, furnace building washdown, NOSAP slurry, and phossy water) generated at the Pocatello
facility, would require a national capacity variance and, therefore,  is granting today a two-year national
capacity variance for these wastes. See the Capacity Analysis Background Document for additional
details.

Comments

•       Shoshone-Bannock Tribe Land Use Department (2SR 107:1,2)
                                           Page 178

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Commenter:           Shoshone-Bannock Tribe Land Use Department
Comment Number:     2SR 107
Page Number:         1
The FMC Pocatello, Idaho elemental phosphorus production facility (FMC) currently generates
approximately 22,000 tons per year of precipitator dust that contains significant quantities of these and
other metals.  We believe this dust is hazardous, as defined by RCRA, due to its high level of metals and
its reactivity and ignitability. Under the proposed rule, the precipitator dust would be treated to remove
the hazardous characteristics of the waste but would not be treated to remove selenium, vanadium, or
zinc. Although precipitator dust is not a listed waste, we believe the high level of metals, including
vanadium and zinc, pose a threat to human health and the environment and should be removed prior to
final placement.
                                           Page 179

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Commenter:           Shoshone-Bannock Tribe Land Use Department
Comment Number:     2SR 107
Page Number:          2
Finally, it is our understanding that the Bevill exclusion was originally designed to address high
volume/low toxicity wastes. Based on our review of available information, we have determined that
calcining wastes associated with the FMC elemental phosphorus industry are medium volume/high
toxicity wastes and exceed TCLP values for several metals including cadmium, selenium, and arsenic.
                                          Pase 180

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4.1.3   Additional Data Exists on Mixed Radioactive Wastes

       One commenter [Coalition on West Valley Nuclear Wastes (10)] provided data on the amount of
mixed radioactive wastes affected by the proposed rule.

•      The Coalition on West Valley Nuclear Wastes (CWVNW)  provided data on Phase IV mixed
       radioactive wastes at one DOE site. According CWVNW, the West Valley Demonstration
       Project has 21,000 drums of cemented mixed waste, which met treatment standards prior to
       Phase IV but would not meet the proposed standards. (10:1)

Response

       EPA thanks the commenter for providing the data and also notes that previously stabilized
wastes need not be re-treated to meet the Phase IV treatment standards.

Comments

•      Coalition on West Valley Nuclear Wastes (10:1)
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Commenter:           Coalition on West Valley Nuclear Wastes
Comment Number.     10
Page Number:         1
We oppose the proposed exemption of West Valley Demonstration Project wastes from the proposed
Land Disposal Restrictions for burial of mixed waste.

At West Valley 21,000 drums have already been filled with cemented mixed waste but not yet disposed
of.  These drums do not meet the proposed now restrictions.  Since retreatment of those wastes to meet
the new standard (opening the drums and grinding -the cement), would pose a significant risk, EPA
proposes that they be exempted from the new restrictions.

We agree that retreatment is not a reasonable option. But to us the burial of waste which does not meet
the new standards  is not reasonable either. Therefore it should not be exempted from the restrictions. If
these restrictions are necessary to protect the environment from contamination then they should be met
unconditionally.
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4.2     Capacity Variance Issues

4.2.1   Process Wastes

4.2.la  Elemental Phosphorus Waste Streams Should Receive a National Capacity Variance

        One commenter [FMC Corporation (SR 70; NODA1 17;  2SR 88)] urged EPA to grant a two-year
national capacity variance for several elemental phosphorus waste streams generated at their plant
located in Pocatello, Idaho.

•      FMC urged the Agency to grant a two-year national capacity variance for the company's
        elemental phosphorus mineral processing wastes. FMC states that the proposed Phase IV
        Supplemental rule will greatly impact FMC's elemental phosphorus plant located in Pocatello,
        Idaho (FMC Pocatello) in that no available treatment capacity exists,  either at the Pocatello plant
        itself or elsewhere in the  United States, for mineral processing waste  streams that contain
        elemental phosphorus. FMC believes that the variance time period will enable its Pocatello
        facility to develop and install potential onsite pollution prevention and treatment technologies.
        Additionally, FMC has conducted a capacity evaluation that demonstrates the lack of treatment
        capacity. (SR 70:1)

•      FMC identified three additional waste streams generated  in  the elemental phosphorus production
        at its Pocatello facility: (1) Precipitator Slurry (43 million gallons per year); (2) NOSAP Slurry
        (22 million gallons per year); and (3) Phossy Water (89 million gallons per year). The newly
        identified streams contain varying amounts of both naturally occurring radioactive materials and
        elemental phosphorus and they could exhibit the TC in the event of process upsets due to the
        presence of heavy metals. Also stated that the maximum volume of Precipitator Slurry and
        NOSAP Slurry that would be produced in a year would be 43  million  gallons.  This results in the
        total volume of the three  new waste streams at 132 million gallons per year. FMC and its
        consultant, The Technical Group, Inc., conducted an exhaustive survey of treatment and disposal
        facilities to determine whether they had the current or anticipated capability to handle the
        Pocatello streams. A total of 168 facilities were contacted.  None could accept the Pocatello
        materials. The lack of available treatment or disposal capacity for these materials is the primary
        basis upon which FMC has requested a national capacity variance. (NODA1  17:1; 2SR 88:2-
        3,3,5-6,6,8)

•       FMC, in response to the November 10, 1997 NODA (62 FR 60465), stated that it has eliminated
        the generation of one of the three waste streams included  in  their original petition for a national
        capacity variance (NCV), the AFM Rinsate waste stream. The elimination of this stream means
        that it would not be necessary for EPA to extend its proposed NCV to include the AFM Rinsate.
        However, FMC has identified three additional waste streams that are nearly identical to the three
        waste streams for which EPA has proposed the NCV and  that  pose the same handling and safety
        concerns. Therefore, because no capacity exists for the original wastes or the additional wastes,
        FMC maintains its request that EPA modify its two-year NCV proposal for the three FMC
        Pocatello wastes to include these additional waste streams.  Thus, EPA's proposed NCV should
        apply to the additional three waste streams and the two remaining original waste streams for
        which the NCV was originally sought. (NODA2 1:2,5)
                                            Pa?el83

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Response

       The Agency, in response to the first supplemental proposal, reviewed the first three waste
streams—Medusa scrubber blowdown, Anderson filter media (AFM) rinsate, and furnace building
washdown—for which FMC requested a national capacity variance. EPA subsequently proposed to
grant a two-year capacity variance for these waste streams. In response to the second supplemental
proposal, FMC requested a national capacity variance for three additional waste streams—NOSAP
slurry, precipitator slurry, and phossy water—and stated that it has eliminated the generation of the
AFM rinsate waste stream. After careful review of FMC's petition, the Agency has determined that the
five waste streams being generated at the Pocatello facility would require a national capacity variance
and, therefore, is granting today a two-year national capacity variance for these wastes. See the Capacity
Analysis Background Document for additional details.

Comments

•      FMC Corporation (SR 70:1)
•      FMC Corporation (NODA1 17:1)
•      FMC Corporation (2SR 88:2-3,3,5-6,6,8)
•      FMC Corporation (NODA2 1:2,5)
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Commenter:           FMC Corporation
Comment Number:     SR 70
Page Number:         1
FMC urges the Agency to grant a two-year National Capacity Variance for the company's elemental
phosphorus mineral processing wastes. The proposed Phase IV Supplemental rule' will greatly impact
FMC's elemental phosphorus plant, EPA ID D070929518, located in Pocatello, Idaho (FMC Pocatello) in
that no available treatment capacity exists, either at the Pocatello plant itself or elsewhere in the United
States, for mineral processing waste streams that contain elemental phosphorus.  The variance time
period will enable FMC Pocatello to develop and install potential onsite pollution prevention and
treatment technologies. As described in greater detail below, FMC has conducted a thorough capacity
evaluation that demonstrates the lack of treatment capacity.  FMC thus believes that there are compelling
reasons for granting a two-year NCV for the elemental phosphorus mineral processing waste streams
generated at the Pocatello facility.
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Commenter:           FMC Corporation
Comment Number:    NODA1  17
Page Number:         1
The first needed clarification relates to the summary presented in Section 4.b. regarding a meeting
between FMC and EPA that took place on January 23, 1996. At that meeting, FMC described the factors
that supported a two-year national capacity variance with respect to the process water streams generated
at the FMC elemental phosphorus plant in Pocatello, Idaho. Depending on the scope of the final Phase
IV rule, the Phase IV LDR requirements might apply to these streams. The summary presented in
Section 4.b. creates the implication that the primary factors supporting the proposed variance are the
logistics and costs of transporting the FMC Pocatello streams to an off-site treatment or disposal facility.
While these factors are important, the determining factor is the lack of available treatment or disposal
capacity for these materials. FMC and its consultant, The Technical Group, Inc., conducted an
exhaustive survey of treatment and disposal facilities to determine whether they had the current or
anticipated capability to handle the Pocatello streams. A total of 168 facilities were contacted. None
could accept the Pocatello materials. This was and is the primary basis upon which FMC has requested a
national capacity variance.
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 Commenter:           FMC Corporation
 Comment Number:    2SR 88
 Page Number:         2-3
Since it filed the NCV petition with EPA, FMC Pocatello has eliminated the generation of one of the
three waste streams to which the NCV proposal applies, the AFM Rinsate waste stream. FMC has thus
successfully and entirely eliminated through its pollution prevention efforts one category of waste for
which it previously sought an NCV.  FMC Pocatello has determined, however, to seek an NCV for three
additional waste streams generated in the elemental phosphorous production process that EPA currently
claims and FMC disputes are hazardous wastes. If managed as hazardous waste, these streams would be
subject to the Phase IV LDR requirements once they are made final.  Based on the capacity evaluation
results and responses by treatment, storage, and disposal (TSD) facilities in the survey supporting that
evaluation, there is inadequate treatment capacity to handle these additional waste streams in the United
States.

The starting point for this capacity determination is the understanding that the composition of these three
additional waste streams — the Non-Hazardous Slurry Assurance Process (NOSAP) Slurry, Precipitator
Slurry, and Phossy Water — is identical to the three waste streams for which EPA has proposed an NCV
in all respects that are relevant to national capacity determinations. As with the three waste streams for
which EPA has proposed a two-year NCV, the newly identified streams contain varying amounts of both
naturally occurring radioactive materials (NORM) and elemental phosphorous. Like the three waste
streams addressed in the original petition, it is possible that NOSAP Slurry, Precipitator Slurry, and
Phossy Water could exhibit the Toxicity Characteristic (TC) [FN 6: 40 C.F.R. ° 261.24.] in the event of
process upsets due to the presence of heavy metals. In addition, they all contain a variety of other
metals, albeit below TC concentrations.  Unlike the three waste streams addressed in the original
petition, these waste streams are defined as non-wastewaters [FN 7: In 40 C.F.R. ° 268.2, EPA defines a
non-wastewater to be wastes that do not meet the criteria for wastewaters.  Wastewaters are wastes that
contain less than 1 percent by weight total organic carbon (TOC) and less than 1 percent by weight total
suspended solids (TSS).] under the LDR program.
                                            Page 187

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Commenter:           FMC Corporation
Comment Number:     2SR 88
Page Number:         3

The total volume of the three hazardous waste streams addressed in the original petition exceeds 148
million gallons per year.  The total volume of the three "new" hazardous waste streams exceeds 132
million gallons per year.  The combined total of the six waste streams exceeds 280 million gallons per
year.  As noted above, FMC Pocatello has successfully and entirely eliminated through its pollution
prevention efforts the AFM Rinsate waste stream. When the AFM Rinsate stream is subtracted from the
overall total volumes generated, the total volume of the remaining five waste streams exceeds 279
million gallons.
                                           Page 188

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 Commenter:           FMC Corporation
 Comment Number:     2SR 88
 Page Number:          5-6
 Precipitator Slurry
 The elemental phosphorus product exits the furnaces as a gas along with the carbon monoxide produced
 in the furnace reaction.  The furnace off-gas also includes entrained solids and solids that have
 volatilized in the furnace and condensed as the off-gas cools. Electrostatic precipitators are used to
 remove these furnace off-gas solids prior to the water spray condensers that remove the elemental
 phosphorus as a liquid.  At FMC, these solids collect in a vessel at the bottom of the precipitator, known
 as the slurry pot, where water is added with a mixer to form what is termed Precipitator Slurry.  The
 slurry pot acts as a gas seal on the precipitators to prevent in-leakage of air.   Some elemental phosphorus
 condenses in the slurry pot and the solids contain low volatile metals such as cadmium and zinc in
 elevated levels.  Historically, Precipitator Slurry has been sent to ponds where the solids settle out and
 the water is recycled. FMC produces 43 million gallons of Precipitator Slurry each year. Though there
 are elevated levels of metals in the Precipitator Slurry, the solids typically do not fail a Toxicity
 Characteristic Leaching Procedure (TCLP) test unless there are extenuating circumstances when it has
 failed for cadmium (D006). Based on preliminary data, EPA has indicated that Precipitator Slurry is
 ignitable (D001) and reactive (D003). [FN  11: FMC is applying the D001 and D003 waste codes for the
 ignitable and reactive characteristics to certain waste streams based on preliminary EPA test results that
 EPA claims demonstrate the presence of these characteristics. These waste characteristic determinations
 are contrary to those FMC made previously.  These determinations and  other information FMC has
 obtained lead it to believe that EPA's results are neither representative nor valid. Nonetheless, FMC is
 prepared to manage these wastes as ignitable and reactive as part of an overall RCRA compliance
 program.  That FMC will manage these streams as if these characteristics apply does not constitute any
agreement on the part of FMC that the D001  or D003 waste code designations are accurate or
appropriate.]  The Slurry also contains NORM and elemental phosphorus and should be managed
 accordingly. The TSS in the Precipitator Slurry typically exceed 1 percent, and the TOC concentration
 present in the Precipitator Slurry does not exceed 1 percent.  Therefore, the Slurry is considered an LDR
non-wastewater.
                                            Page 189

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Commenter:           FMC Corporation
Comment Number:     2SR 88
Page Number:          6

NOSAP Slurry
In 1994 and 1995 as part of its waste minimization efforts, FMC developed and installed NOSAP which
is a modification to the electrostatic precipitator and the slurry pot. Lime slurry is added to the slurry pot
to control the pH of the slurry to a set point of pH 12. The lime reacts with the phosphorus to form
phosphites and phosphine gas thus reducing the concentration of phosphorus to below 100 ppm.  The
lime also prevents the metals from becoming teachable and assures the metals will not fail the TCLP test.
The resulting slurry that has gone through this process is known as NOSAP Slurry. Based on
preliminary data, EPA has indicated that NOSAP Slurry is reactive (D003). If all Precipitator Slurry
went through the NOSAP process, FMC would produce only 22 million gallons per year since the
NOSAP Slurry has a higher solids content.  The solids in NOSAP Slurry are the same as Precipitator
Slurry with the exception of the effect of the lime. The NORM content is the same and  there is still some
residual phosphorus content. NOSAP slurry that does not meet specifications is a component of
Precipitator Slurry. The TSS in the NOSAP Slurry typically exceed 1 percent, and the TOC in the
NOSAP Slurry does not exceed 1 percent. Therefore, the NOSAP Slurry is a non-wastewater for LDR
purposes.
The maximum volume of Precipitator Slurry and NOSAP Slurry that would be produced in a year would
be 43  million gallons.
                                           Page 190

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Commenter:          FMC Corporation
Comment Number:     2SR 88
Page Number:
The TSS in the Phossy Water typically exceed 1  percent, and the TOC in the Phossy Water does not
exceed 1 percent. Therefore, the Phossy Water is a non-wastewater for LDR purposes. FMC generates
89 million gallons total of the Phossy Water per year.
                                         Page 191

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Commenter:          FMC Corporation
Comment Number:    NODA2 1
Page Number:        2
On May 12, 1997, EPA proposed a supplement to the January 25, 1996, propose rule.2 EPA proposed to
grant a two-year NCV for the three waste streams addressed in FMC's original petition.  These "original"
waste streams, for which adequate capacity does not exit are, Medusa Scrubber Slowdown, Anderson
Filter Media (AFM) Rinsate, and Furnace Building Washdown.

Since it filed the NCV petition with EPA, FMC Pocatello has eliminated the generation of one of the
three waste streams to which the NCV proposal applies, the AFM Rinsate waste  stream. The elimination
of this stream means that it would not be necessary for EPA to extend its grant of the proposed NCV to
include the AFM Rinsate.
                                          Page 192

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Commenter:           FMC Corporation
Comment Number:     NODA2 1
Page Number:          5
The three additional waste streams are nearly identical to the three waste streams for which EPA has
proposed the NCV and pose the same handling and safety concerns and issues addressed in FMC's earlier
submissions. Therefore, because no capacity exists for the original wastes or the additional wastes, FMC
maintains its request that EPA modify its two-year NCV proposal for the three FMC Pocatello wastes to
include these additional waste streams. Thus, EPA's proposed NCV should apply to the additional three
waste streams and the two remaining original waste streams for which the NCV was originally sought.
                                           Pa<*e 193

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4.2.Ib  Elemental Phosphorus Waste Streams Should Not Receive a National Capacity Variance

        Two commenters [Environmental Technology Council (NODA1 14); Environmental Defense
Fund (NODA1 10)] stated that FMC Corporation's request for a capacity variance should be denied.

•      The Environmental Technology Council stated that EPA should consider a c.ase-by-case
        extension for the three large volume TC metal wastewater streams generated at FMC
        Corporation facilities because of the unique treatability problems that these wastewaters pose
        due to the presence of elemental phosphorous contamination and naturally occurring radioactive
        material.  A national capacity variance is inappropriate because adequate capacity does exist for
        TC metal wastewaters.
        (NODA1  14:13-14)

•      The Environmental Defense Fund (EDF) stated that FMC Corporation's request for a capacity
        variance should be denied. EDF stated two reasons why the variance should be denied:  (1) the
        necessary data were not submitted to the docket preventing the public from commenting on the
        merits of the issue and (2) FMC has not submitted any of the requisite demonstrations for the
        case-by-case capacity variance it is requesting. (NODA1  10:5)
Response

       As discussed in the previous section, the Agency determined that adequate treatment capacity
does not exist for the three original waste streams identified by FMC in its request for a national capacity
variance nor for the additional three waste streams identified by FMC in their response to the second
supplemental proposed rule. The Agency notes that the data submitted by FMC was placed in the docket
and was available to the public for comment. Furthermore, another NODA was published (62 FR 60465,
November 11,  1997), thus allowing the public additional opportunity to review the necessary data and
provide comment. No additional comment, other than that from FMC, was provided.  The Agency also
notes that FMC requested a national capacity variance and not a case-by-case variance. As discussed in
the previous section of this Comment Summary and Response Document and in the Capacity Analysis
Background Document, the Agency determined that adequate treatment capacity does not exist for the
five waste streams generated at FMC's Pocatello facility and that a two-year capacity variance for these
wastes is needed. Therefore, the Agency is  granting today a two-year national capacity variance for these
wastes.
Comments

•      Environmental Technology Council (NODA1 14:13-14)
•      Environmental Defense Fund (NODA 1 10:5)
                                           Pa°e 194

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Commenter:           Environmental Technology Council
Comment Number:     NODA1 14
Page Number:         13-14
EPA solicits comment on whether a national capacity variance should be granted for three large volume
TC metal wastewater streams that are generated at FMC Corporation facilities. Because these
wastewaters pose unique treatability problems due to the presence of elemental phosphorous
contamination and naturally occurring radioactive material, EPA should consider a case-by-case
extension under 40 CFR 268.5.  A national capacity variance is not appropriate because adequate
capacity does exist for TC metal wastewaters.  FMC Corporation's wastewaters have unique treatability
problems that make a case-by-case extension the appropriate regulatory mechanism.
                                           Pa°e 195

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Commenter:           Environmental Defense Fund
Comment Number:     NODA1 10
Page Number:         5
According to the NODA, FMC purportedly seeks a two year national capacity variance for three wastes.
However, the only information in the docket addressing this matter when the NODA was published is a
one page summary of a meeting held on January 23, 1996, almost four months before the NODA was
published, and an attachment of six slides containing little more than conclusory statements on the
alleged need for a variance.  In the NODA, EPA essentially concedes the existing documentation is
insufficient, but then suggests if FMC submitted additional information during this comment period, the
deficiency would be cured because EPA would make the information available to the public. See 61 FR
21422.

First, FMC had almost four months to submit the necessary data.  Having failed to do so, the public is
prevented from commenting on the merits of the issue.  EPA cannot and should not reward FMC's
recalcitrance by considering the issue ripe for consideration at this time. The public is not required nor
can it be expected to check the docket daily for FMC submissions and file comments accordingly.
Moreover, since the information was not available when the NODA was published, the time period
provided for public comment would be inadequate if and when FMC submits additional information.

Second, since FMC seeks only a variance for its TC hazardous wastes (and not for all metal wastes with
a similar waste code), the capacity variance request is more properly a request for a case-by-case
capacity variance pursuant to Section 3004(h)(3) of RCRA. Since none of the requisite demonstrations
for such a request have been made, as specified in 40 CFR 268.5, the request should be denied.
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4.2.Ic  A Capacity Variance Is Needed for Other Newly Identified Mineral Processing Wastes

        Six commenters [ASARCO (SR 36); Phelps Dodge Corporation (SR 38); Phosphorus Producers
Environmental Council (SR 42); Cyprus Amax Minerals Company (SR 46); National Mining
Association (SR 58); Occidental Chemical Corporation (SR 81)] support the adoption of a national
capacity variance for newly identified mineral processing wastes.

•      ASARCO believes a more expansive national capacity variance  for all newly identified primary
        mineral processing wastes is appropriate. ASARCO states that the existing methods for handling
        these materials may not be available if they are considered to involve hazardous waste treatment
        and would trigger RCRA permitting requirements.  Additionally, ASARCO believes that since
        the universe of secondary materials affected by the Supplemental Proposed Rule is ambiguous,
        significant primary mining and mineral processing materials could fall within the definition of
        solid waste. Based on these two factors, ASARCO believes a two-year national capacity
        variance is appropriate for all newly identified mineral processing wastes. (SR 36:37-38)

•      Phelps Dodge takes exception to EPA's position that a national capacity variance is not
        warranted.  Phelps Dodge believes that EPA has erroneously based its conclusion on the
        assumption that the proposed rule will increase recycling of materials and thus reduce the
        amount of wastes subject to LDR standards. Phelps Dodge believes that it is likely that recycling
        activities actually will decrease due to the ambiguities inherent in the proposed rule. (SR 38:45)

•      The Phosphorus Producers Environmental Council  (PPEC) believes that EPA's determination
        that mineral processing waste do not require a two-year national  capacity variance is erroneous.
        PPEC states that immediate application of RCRA land disposal restrictions for wastes which are
        subject to this proposed rule is clearly erroneous and will cause facility shutdowns throughout
        the mineral industries because neither the facilities  nor the regulatory agencies can possibly react
        quickly enough to make necessary changes to facilities or existing permit approvals.
        Consequently, PPEC believes that it is completely unrealistic to expect immediate application of
        the LDRs under these circumstances. (SR 42:25)

•       Cyprus Amax supports the adoption of a two-year national capacity variance for mineral
        processing wastes.  Cyprus Amax states that even assuming that  stabilization will achieve the
        proposed LDRs for most mineral processing non-wastewaters, EPA's assumption that the
        technology will be "up and running" within 90 days of promulgation of the Phase IV rule simply
        is unrealistic. Cyprus Amax believes that in light of the fact that existing off-site commercial
        treatment capacity may not practically be available for use by mineral processing facilities, EPA
        should allow a two-year capacity variance for newly-identified mineral processing wastes, and
        soil and debris contaminated with such wastes. Such time will be necessary to allow mineral
        processing facilities to evaluate which waste streams are subject  to the LDRS, to install any
        necessary treatment technology, and to perfect that  treatment technology to ensure LDR
        compliance. (SR 46:54-55)
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 •      NMA believes EPA's decision not to provide a national capacity variance for most mineral
        processing wastes is unsupported by the record. NMA states that even assuming that
        stabilization will achieve the proposed LDRs for most mineral processing non-wastewaters,
        EPA's assumption that the technology will be "up and running" within 90 days of promulgation
        of the Phase IV rule simply is unrealistic. NMA believes that in light of the fact that existing
        off-site commercial treatment capacity may not practically be available for use by mineral
        processing facilities, EPA should allow a two-year capacity variance for newly-identified
        mineral processing wastes. Such time will be necessary to allow mineral processing facilities to
        evaluate which waste streams are subject to the LDRS, to install any necessary treatment
        technology, and to perfect that treatment technology to ensure LDR compliance. (NODA1 5:2;
        SR 58:178-179)

 •      Occidental Chemicals Corporation supports a minimum two-year national capacity variance
        because projects to replace impoundments with aboveground units can easily require four years
        to complete. In addition, off-site treatment capacity does not exist for large volume wastes and
        adequate time is required to install on-site waste treatment  capacity.
        (116:6;  SR 81:4; 2SR 109:1-2)

Response

        Based on the treatability and capacity analyses conducted by the Agency, it is clear that the
newly identified mineral processing wastes can  be readily treated for TC metals and the underlying
hazardous constituents using commercially available treatment technologies. Furthermore, EPA's data
show that adequate treatment capacity exists for such wastes or can be optimized within 90 days of
promulgation of the final rule. (See the BDAT Background Document for treatment performance data
and the  Capacity Analysis Background Document for available treatment capacity information.) The
Agency notes that the standards are not technology-based, but rather concentration-based, and thus the
treaters  have the flexibility of selecting an appropriate treatment technology. Therefore, EPA believes
that adequate treatment capacity exists for treating the newly identified  mineral processing wastes and  is
not granting a national capacity variance. Nevertheless, the Agency notes that if generators of newly
identified wastes cannot obtain adequate treatment for specific wastes,  then the generators of these
wastes may apply for a capacity variance extension per 40 CFR 268.5 on a case-by-case basis.
Furthermore,  if treaters of newly identified wastes have difficulties in treating specific wastes, the
treaters  may apply for a treatability variance under 40 CFR 268.42.
Comments
       ASARCO(SR 36:37-38)
       Phelps Dodge Corporation (SR 38:45)
       Phosphorus Producers Environmental Council (SR 42:25)
       Cyprus Amax Minerals Company (SR 46:54-55)
       National Mining Association (NODA1 5:2)
       National Mining Association (SR 58:178-179)
       Occidental Chemical Corporation (116:6)
       Occidental Chemical Corporation (SR 81:4)
       Occidental Chemical Corporation (2SR 109:1-2)
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Commenter:           ASARCO
Comment Number:     SR 36
Page Number:         37-38
ASARCO believes a more expansive national capacity variance for all newly identified primary mineral
processing wastes is appropriate.  EPA estimates that "for the regulatory options described previously for
the newly identified mineral processing wastes, few (if any) facilities or waste quantities will be affected
by this rule." 61 Fed. Reg.2360.  However, as discussed above, the existing methods for handling these
materials may not be available if they are considered to involve hazardous waste treatment and would
trigger RCRA permitting requirements. Additionally, since the universe of secondary materials affected
by the Supplemental Proposed Rule is ambiguous, significant primary mining and mineral processing
materials could fall within the definition of solid waste. Based on these two factors, ASARCO believes a
two-year national capacity variance is appropriate for all newly identified mineral processing wastes.
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Commenter:           Phelps Dodge Corporation
Comment Number:     SR 38
Page Number:         45
Phelps Dodge also takes exception to EPA's position that a national capacity variance is not warranted.
EPA erroneously bases this conclusion on the assumption that the Proposed Rule will increase recycling
of materials and thus reduce the amount of wastes subject to LDR standards. However, it is likely that
recycling activities actually will decrease due to the ambiguities inherent in the Proposed Rule, as
discussed above. Under the Proposed Rule, Phelps Dodge and other facilities will be forced to make a
number of important decisions regarding the status of potential "secondary materials" to determine if
recycling can continue given the potentially severe costs of failing to comply with the conditional
exclusions.  Basing a decision to not grant a national capacity variance on the assumption that recycling
will increase is short-sighted.
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Commenter:           Phosphorus Producers Environmental Council
Comment Number:     SR 42
Page Number:         25
Immediate application of RCRA land disposal restrictions for wastes which are subject to this Proposed
Rule is clearly erroneous and will cause facility shutdowns throughout the mineral industries because
neither the facilities nor the regulatory agencies can possibly react quickly enough to make necessary
changes to facilities or existing permit approvals. Congress and EPA have long recognized that mineral-
processing-waste are generated in large volumes and are unique from other hazardous waste. Many
facilities have been operating for decades.  It is completely unrealistic to expect immediate application of
the LDRs under these circumstances. Under separate cover, FMC, a member company of the PPEC, is
providing comments regarding the need for a two year national capacity variance for phosphorus
processing wastes from their facility.
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Commenter:          Cyprus Amax Mineral Company
Comment Number:    SR 46
Page Number:         54-55
EPA has proposed to subject most newly-identified mineral processing wastes to LDR treatment
standards within 90 days of promulgation of the final Phase IV rule, instead of providing a national
capacity variance of up to two years as allowed under the statute. 61 Fed.  Reg. 2360. See also 42 U.S.C.
§ 6924(h)(2).  EPA asserts that a national capacity variance generally is not necessary because "few (if
any) facilities or waste quantities will be affected by this rule,... based on data indicating that the
predominant management of these [newly identified] wastes, stabilization, will be adequate for meeting
the proposed treatment standards." 61 Fed. Reg. 2360.

Even assuming, however, that stabilization will achieve the proposed LDRs for most mineral processing
non-wastewaters, EPA's assumption that the technology will be "up and running" within 90 days of
promulgation of the Phase IV rule simply is unrealistic. EPA  itself acknowledges in the proposed rule
that:

        for some of the wastes at issue in this proposed rule, it may not be feasible to ship wastes off-site
        to a commercial facility. In particular, facilities with large volumes of wastes may not readily be
        able to transport their wastes to treatment facilities. Alternative treatment for these wastes may
        need to be constructed on site.
IcL

In light of the  fact that existing off-site commercial treatment  capacity may not practically be available
for use by mineral processing facilities, EPA should allow a two year capacity variance for newly-
identified mineral processing wastes, and soil and debris contaminated with such wastes.6 Such time will
be necessary to allow mineral processing facilities to evaluate which waste streams are subject to the
LDRs, to install any necessary treatment technology, and to perfect that treatment technology to ensure
LDR compliance.
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Commenter:           National Mining Association
Comment Number:    NODA1 5
Page Number:         2
For EPA now to demand that industry evaluate the Subtitle C status of all of its mineral processing
materials, install any necessary treatment technology, and refine its treatment processes to meet the LDR
treatment standards within 90 days of promulgation of the rule (or to provide detailed information and
data demonstrating conclusively that there will be a capacity shortfall) is unrealistic and patently unfair.
No other industry has been forced to make the case for a capacity variance in the face of a moving target
such as that erected by the Agency in its Phase IV rule for the mineral processing industry. To ensure
that mineral processing facilities are afforded adequate time (1) to determine whether, and if so, to what
extent, they generate mineral processing wastes subject to LDR treatment standards as the result of the
Phase IV LDR rulemaking, and (2) to conform their operations accordingly, a two year national capacity
variance for all newly-identified mineral processing wastes is both fair and essential.
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Commenter:           National Mining Association
Comment Number:    SR 58
Page Number:         178-179
EPA's capacity determination for newly-identified mineral processing wastes is badly flawed. First, the
Agency's assertion that stabilization is the "predominant" form of management for mineral processing
wastes is incorrect. Moreover, there is no evidence in the administrative record to support EPA's
assertion that the LDRs for non-wastewater forms of newly-identified mineral processing wastes
generally can be met using stabilization technology. As discussed elsewhere in these comments, the
Agency's determination that newly-identified mineral processing non-wastewaters can be treated to the
UTS using stabilization is  unfounded. Because that BOAT determination forms the basis for the
Agency's finding that adequate treatment capacity (i.e., stabilization) exists for newly-identified mineral
processing wastes, EPA's capacity determination is similarly flawed.

Even assuming, however, that stabilization will achieve the proposed LDRs for most mineral processing
non-wastewaters, EPA's assumption that the technology will be "up and running"  within 90 days of
promulgation of the Phase  IV rule simply is unrealistic. EPA itself acknowledges in the proposed rule
that:

       for some of the wastes at issue in this proposed rule, it may not be feasible to ship wastes off-site
       to a commercial facility.  In particular, facilities with large volumes of wastes may not readily be
       able to transport their wastes to treatment facilities. Alternative treatment for these wastes may
       need to be constructed on site.

61 Fed. Reg. at 2360.

In light of the fact that existing off-site commercial treatment capacity may not practically be available
for use by mineral processing facilities, EPA should allow a two year capacity variance for newly-
identified mineral processing wastes.  Such time will be necessary to allow mineral processing facilities
to evaluate which waste streams are subject to the LDRS, to install any necessary  treatment technology,
and to  perfect that treatment technology to ensure LDR compliance.
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Commenter:           Occidental Chemical Corporation
Comment Number:     116
Page Number:         6
C.     OxyChem supports the two-year National Capacity Variance, which allows for extensions of up
to two additional years.
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Commenter:          Occidental Chemical Corporation
Comment Number:    SR 81
Page Number:         4
Since offsite treatment capacity does not exist for these high volume wastes, adequate compliance time is
needed to modify on-site facilities.  To comply with the treatment standard 100% of time will require
modifications to our treatment system. A compliance schedule prepared by a facility outlining work to
be done and kept on-site should be sufficient to demonstrate compliance in the interim.
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Commenter:           Occidental Chemical Corporation
Comment Number:    2SR 109
Page Number:         1-2
In addition, process variability due to the nature of characteristic metal wastes which are extremely
variable depending on production rates, ratios of mixtures of materials from various internal processes,
amounts of water processed, etc. will require modifications to the residue stabilization system to ensure
residue quality can consistently meet the new treatment standards. These modifications will include the
need for additional stabilization materials, resulting in greater quantities of treated wasted to be disposed.

We question whether the agency's goals of waste minimization and pollution prevention have been
considered when additional required treatment will cause an increase in waste to be managed.  At a
minimum, a two year compliance schedule should be allowed to provide time to make the necessary
modifications to the stabilization system.
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4.2.1d A Capacity Variance Is Not Needed for Other Newly Identified Mineral Processing Wastes

       One commenter [Laidlaw Environmental Services (SR 31)] opposes the adoption of a national
capacity variance for newly identified mineral processing wastes.

•      Laidlaw supports the Agency's proposal not to grant a national capacity variance for meeting the
       LDR requirements for these wastes because ample stabilization and treatment capacity exists
       within the waste management industry to meet the requirements of waste generators. (SR 31:3)

Response

       The Agency acknowledges the commenters support and has used the submitted information in
the capacity analysis.

Comments

•      Laidlaw Environmental Services (SR 31:3)
                                           Pa°e 208

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Commenter:           Laidlaw Environmental Services
Comment Number:     SR 31
Page Number:         3
Laidlaw supports the application of the existing Universal Treatment Standards to the newly identified
mineral processing wastes. In addition, Laidlaw supports the Agency's proposal not to grant a national
capacity variance for meeting the LDR requirements for these wastes. Ample stabilization and treatment
capacity exists within the waste management industry to meet the requirements of waste generators.
                                           Pas?e 209

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4.2.le  Capacity Variances Are Needed for Characteristic Arsenic and High Mercury Mineral
        Processing Wastes

        Two commenters [ASARCO (SR 36); NMA (SR 58)] support a variance for characteristic
arsenic and/or high mercury wastes.

•       ASARCO supports the proposed one-year variance for characteristically hazardous arsenic non-
        wastewaters. (SR 36:38)

•       NMA supports a two-year rather than a one-year national capacity variance for characteristically
        hazardous arsenic non-wastewaters and high mercury subcategory non-wastewaters arguing that
        inadequate capacity exists. (SR 58:176-177)

Response

        The Agency collected additional treatment performance data on these wastes from several
commercial treatment facilities. These data indicate no treatability problems exist with high arsenic and
high mercury waste, as previously thought. In contrast, the commenters did not provide any supporting
data to demonstrate any treatability or capacity issues associated with arsenic and mercury wastes.
Therefore, the Agency is not granting a national capacity variance for these wastes. Nevertheless, the
Agency notes that if generators of newly identified wastes cannot obtain adequate treatment for specific
wastes, then the generators of these wastes may apply for a capacity variance extension per 40 CFR
268.5 on a case-by-case basis. Furthermore, if treaters of newly identified wastes have difficulties in
treating specific wastes, the treaters may apply for a treatability variance under 40 CFR 268.42.
Comments

•      ASARCO (SR 36:38)
•      National Mining Association (SR 58:176-177)
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Commenter:          ASARCO
Comment Number:    SR 36
Page Number:         38
ASARCO supports the one-year variance for characteristically hazardous arsenic non-wastewaters and
also supports the Agency's proposal to grant a two-year national capacity variance for mineral processing
wastes received by Class I injection wells. In light of the on-site location of these disposal units at one of
ASARCO's primary plants, the currently limited capacity of ASARCO to treat the higher volumes of
wastes effectively, and the extensive amount of time required to achieve the necessary capacity,
ASARCO agrees that a two-year capacity variance is essential.
                                          Pa?e211

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Commenter:           National Mining Association
Comment Number:     SR 58
Page Number:         176-177
In the proposed rule, EPA explains that the UTS for arsenic in non-wastewaters, which it has proposed to
extend to non-wastewater forms of newly-identified mineral processing wastes, is based on slag
vitrification. 61 Fed. Reg. at 2359. NMA has several concerns about the proposed extension of this
treatment standard to newly identified mineral processing wastes.

First, primary slags are generally beyond EPA's Subtitle C jurisdiction because of the Bevill
Amendment. 42 U.S.C. § 6921(b)(3)(A)(ii). Moreover, EPA's position, expressed in the rulemaking
establishing the UTS, that a treatment standard based on slag vitrification is appropriate for arsenic
because "most arsenic is not reclaimed from waste materials," 58 Fed.  Reg. at 48,102, ignores the fact
that slags from both primary and secondary smelters are frequently processed to recover additional metal
values  other than arsenic. Requiring such facilities to produce vitrified slags would complicate the
further processing of slags by necessitating more costly grinding of the slags prior to processing.  Such a
result would clearly be contrary to the resource conservation and recovery goals of RCRA.
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4.2.If  Capacity Variances for New Wastes Should Be Made Upon Petition

        One commenter [Kennecott (2SR 54)] stated that capacity variances for newly identified wastes
should be granted upon petition by the waste producer.

•       Kennecott stated that for new wastes produced in the future as a result of process, technology, or
        market changes, determinations as to treatability to UTS and capacity variances should be made
        upon petition by the waste producer at that time. (2SR 54:63)

Response

        The Agency notes that if generators of newly identified wastes generated currently or in the
future, cannot obtain adequate treatment for specific wastes, then the generators of these wastes may
apply for a capacity variance extension per 40  CFR 268.5 on a case-by-case basis.  Furthermore, if
treaters of newly identified wastes have difficulties in treating specific wastes, the treaters may apply for
a treatability variance under 40 CFR 268.42.

Comments

•       Kennecott Corporation (2SR 54:63)
                                            Pa?e213

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Commenter:           Kennecott Corporation
Comment Number:     2SR 54
Page Number:         63
EPA should clarify that the proposed Land Disposal Restrictions (LDR) for newly identified mineral
processing wastes (i.e: Part 268.32) would be applicable only to currently produced waste materials.  The
rule should provide that, for new wastes produced in the future as a result of process, technology, or
market changes, determinations as to treatability to Universal Treatment Standards (UTS), and capacity
variances will be made upon petition by the producer at that time.
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 4.2.2   Soil and Debris

 4.2.2a  A Two-Year Capacity Variance Is Needed for Soil Contaminated With Newly Identified
        Mineral Processing Waste

        Three commenters [Kennecott Corporation (SR 40); Cyprus Amax (SR 46); National Mining
 Association (SR 58)] believe that EPA should allow a two-year national capacity variance for soil
 contaminated with newly identified mineral processing waste.

 •      Kennecott believes a reexamination of the record will substantiate a minimum two-year national
        capacity variance for contaminated soils because of the Agency's stated lack of knowledge
        regarding the quantities of soil that may be contaminated with newly identified mineral
        processing wastes. Kennecott suggests that the Agency may have a significant body of data from
        CERCLA cleanups of sites with mineral processing wastes (e.g., Anaconda, Montana; Bunker
        Hill, Idaho; Palmerton, Pennsylvania; Tacoma/Commencement Bay, Washington). (SR 40:12)

 •      Cyprus Amax believes that in light of the fact that existing off-site commercial treatment
        capacity may not practically be available for use by mineral processing facilities, EPA should
        allow a two-year capacity variance for newly-identified mineral processing wastes, and soil and
        debris contaminated with such wastes.  Such time will be necessary to allow mineral processing
        facilities to evaluate which waste streams are subject to the LDRS, to install any necessary
        treatment technology, and to perfect that treatment technology to ensure LDR compliance. (SR
        46:54-55)

 •      NMA believes EPA should reconsider its decision to deny a capacity variance for soil and debris
        contaminated with newly-identified mineral processing wastes.  NMA states that large volumes
        of such soil and debris is likely to be generated at many facilities in the context of remedial
        actions (under Superfund or RCRA), voluntary cleanups, or facility expansions. (SR 58:181-182)

Response

        The Agency recognizes the unique issues associated with remediation waste, including
hazardous contaminated soil, and therefore believes that it is appropriate to establish alternative, less-
stringent LDR treatment standards for hazardous soil. Thus, in the final Phase IV rule, the Agency has
promulgated alternative treatment standards for hazardous soil, which require that the concentrations of
constituents subject to treatment be reduced by 90 percent with treatment for any given constituent
capped at ten times the UTS.  The Agency believes that these less stringent standards can be achieved by
existing commercially available treatment technologies. The Agency also compiled treatment
performance data for contaminated soils from remediation case studies that indicate that the alternative
treatment standards can be readily achieved by commercially available treatment technologies and
adequate treatment capacity is available for these contaminated soils. (See the BDAT and Capacity
Analysis Background Documents for additional information.) Therefore, the Agency is not granting a
national capacity variance for soil contaminated with newly identified mineral processing wastes.
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       Nevertheless, the Agency notes that if generators of newly identified wastes cannot obtain
adequate treatment for specific wastes, then the generators of these wastes may apply for a capacity
variance extension per 40 CFR 268.5 on a case-by-case basis. Furthermore, if treaters of newly
identified wastes have difficulties in treating specific wastes, the treaters may apply for a treatability
variance under 40 CFR 268.42.
Comments

•      Kennecott Corporation (SR 40:12)
•      Cyprus Amax Minerals Company (SR 46:54-55)
•      National Mining Association (SR 58:181-182)
                                           Page 216

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Commenter:          Kennecott Corporation
Comment Number:    SR 40
Page Number:         12
EPA's statement that the Agency has no data on the quantities of soil that may be contaminated with
newly identified mineral processing wastes is puzzling. The Agency clearly has a significant body of
data from CERCLA cleanups of sites with mineral processing wastes (e.g.: Anaconda, Montana; Bunker
Hill, Idaho; Palmerton, Pennsylvania; Tacoma/Commencement Bay, Washington).

Kennecott believes a reexamination of the record will substantiate a minimum two year national
capacity variance.
                                          Pas;e217

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Commenter:           Cyprus Amax Mineral Company
Comment Number:     SR 46
Page Number:         54-55
In light of the fact that existing off-site commercial treatment capacity may not
practically be available for use by mineral processing facilities, EPA should allow a two year
capacity variance for newly-identified mineral processing wastes, and soil and debris
contaminated with such wastes.6 Such time will be necessary to allow mineral processing
facilities to evaluate which waste streams are subject to the LDRs, to install any necessary
treatment technology, and to perfect that treatment technology to ensure LDR compliance.
                                            Pas?e218

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 Commenter:           National Mining Association
 Comment Number:     SR 5 8
 Page Number:          181-182
 C.      EPA Should Allow A Two Year National Capacity Variance For Soil And Debris Contaminated
        With Newly-Identified Mineral Processing Wastes

 In the proposed rule, EPA states that it does not plan to grant a national capacity variance for soil and
 debris contaminated with newly-identified mineral processing wastes, based on its conclusion that "few
 (if any) facilities or waste quantities are likely to be impacted by the proposed rule." 61 Fed. Reg. at
 2361.  The Agency admits, however, that it "currently does not have data on the quantities of soil and
 debris that may be contaminated with newly identified mineral processing wastes." Id.

 NMA urges EPA to reconsider its decision to deny a capacity variance for soil and debris contaminated
 with newly-identified mineral processing wastes.  Large volumes of such soil and debris is likely to be
 generated at many facilities in the context of remedial actions (under Superfund or RCRA), voluntary
 cleanups, or facility expansions. At a minimum, EPA in the Phase IV rule must recognize the need to
 grant treatability variances for soil and debris contaminated with newly-identified mineral processing
 wastes. In the Phase 11 rule that established the UTS, EPA "stated a presumption ... that the treatment
 standards for as-generated wastes are generally inappropriate or  unachievable for soils contaminated with
 hazardous wastes  .... It has been the. Agency's experience that contaminated soils are significantly
 different in their treatability characteristics from the wastes that  have been evaluated in establishing the
 BDAT standards,  and thus will generally qualify for a treatability variance under 40 CFR 268.44." 59
 Fed. Reg. at 47,987.  EPA should at least make a similar finding in the case of soil contaminated with
 mineral processing wastes.

A far preferable approach, however, would be for EPA to grant a two year capacity variance for both soil
and debris contaminated with newly-identified mineral processing wastes. In view of the pendency of
the proposed HWIR rule for contaminated media, which was signed on April 12, 1996 and will appear in
the Federal Register imminently, and which may result in substantial quantities  of contaminated
environmental media (including both soil and debris) being excluded from Subtitle C regulation
(including the LDR program), it would be  appropriate at this juncture to grant a two year capacity
variance for soil and debris contaminated with newly-identified mineral processing wastes. In this way,
mineral processing facilities managing contaminated soil and debris that may soon be excluded under
HWIR will not, in the meantime, be subjected unnecessarily to the onerous burdens of Subtitle C
regulation.^"
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4.2.2b A Two-Year Capacity Variance Is Needed for Manufactured Gas Plant (MGP)
       Remediation Wastes

       Two commenters [New Jersey Natural Gas Company (SR 50); South Jersey Gas Company (SR
51)] believe that EPA should grant a two-year national capacity variance for manufactured gas plant
(MGP) remediation wastes.

•      New Jersey Natural Gas Company (KING) believes that EPA should delay the effective date of
       the LDR requirements for MGP waste for at least an initial two years because capacity would not
       necessarily be available in many geographic areas and transportation costs could be significant.
       (SR 50:4)

•      South Jersey Gas Company (SJG) believes that EPA should delay the effective date of the LDR
       requirements for MGP waste for at least an initial two years because capacity would not
       necessarily be available in many geographic areas and transportation costs could be significant.
       (SR 51:3-4)

Response

       As discussed in the previous section, the Agency believes that the new, less stringent standards
can be achieved by existing commercially available treatment technologies, and that adequate treatment
capacity is available for these contaminated soils.  Also, clarified in this rulemaking is the Agency's
interpretation that residues from co-burning hazardous MGP soils along with coal is covered by the
Bevill Amendment (assuming the residues are not significantly affected by such burning, as provided in
40 CFR 266.112). Therefore, as discussed in more detail in the Capacity Analysis Background
Document, the Agency is not granting a national capacity variance for MGP remediation wastes.
Comments

•      New Jersey Natural Gas Company (SR 50:4)
•      South Jersey Gas Company (SR 51:3-4)
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Commenter:           New Jersey Natural Gas Company
Comment Number:     SR 50
Page Number:         4
Even if EPA determines that there is adequate treatment capacity for the volume of waste that would
require additional treatment to meet LDR treatment standards, such capacity would not necessarily be
available in many geographic areas and transportation costs could be significant. Treatment costs would,
therefore, be increased not only as a result of the absence of alternative methods of treatment, but also
the increased cost of transportation and handling. The EPA should, therefore, delay the effective date of
the LDR requirements for MGP waste for at least ari initial two years in order to allow for both a general
increase in capacity and the  availability of capacity in geographic areas currently lacking such capacity.
This would lessen the increased cost otherwise associated with the imposition of the LDR requirements
for MGP waste.
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Commenter:           South Jersey Gas Company
Comment Number:     SR 51
Page Number:         3-4
Even if the EPA determines that there is adequate treatment capacity for the volume of waste that would
require additional treatment to meet LDR treatment standards, such capacity would not necessarily be
available in many geographic areas and transportation costs could be significant. Treatment costs would,
therefore, be increased not only as a result of the absence of alternative methods of treatment, but also
the increased cost of transportation and handling. The EPA should, therefore, delay the effective date of
the LDR requirements for MGP waste for at least an initial two years in order to allow for both a general
increase in capacity and the availability of capacity in geographic areas currently lacking such capacity.
This would lessen the increased cost otherwise associated with the imposition of the LDR requirements
for MGP waste.
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