United States       Solid Waste and      EPA530-R-99-020b
Environmental Protection   Emergency Response    NTIS: PB99-155830
Agency	(5305W)	April 1998	
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 2: Comments Related to Phase
IV Proposed Rule (August 22, 1995)
      Printed on paper that contains at least 30 percent postconsumer fiber

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                   List of Phase IV Land Disposal Restriction Codes,
                      Description, and Location by Page Number
ARSN: Arsenic Treatment Standards   	1

AUTH:  State Authorization 	2

BERY: Beryllium Treatment Standards  	13

CADM: Cadmium Treatment Standards  	30

CHRM: Chromium Treatment Standards  	52

FOUN: Foundry Sand Issues 	74

HWIR: LDR/Hazardous Waste Identification Rule Issues  	85

LEAD1: Lead Treatment Standards	93

LEAD2: Lead Treatment Standards	121

METL: General Comments on Metals Treatment Standards	142

MISC: Miscellaneous Issues  	167

NICK: Nickel Treatment Standards 	183

SELE: Selenium Treatment Standards	186

SLAG: Slag Issues  	194

SLVR: Silver Treatment Standards 	197

TC: Toxicity Characteristic Issues	207

UHCS: Underlying Hazardous Constituents 	239

VAND:  Vanadium Treatment Standards  	268

WOOD2: Wood Preserving Wastewater Exclusion  	269

ZINC: Zinc Treatment Standard	296

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              Index of Commenters and Location of Comment, By Issue

  Chemical Waste Management
      UHCS	250
  Horsehead/Zinc Corp.
       UHCS	247
  Lead Industries Associati
      MISC 	169
  New York DEC
      UHCS 	241
      UHCS	240
  Oregon DEQ
      WOOD2	294
  Safety-Kleen Corp.
      MISC 	171
 AWPI
      WOOD2	274
American Foundryman's Soc
      CD/CR	36
      CHRM 	54
      FOUN	78
      LEAD1	116
      SELE 	;	189
      TC  	221
American Gas Association
      CADM	46
      CHRM 	64, 65
      LEAD2	134
American Iron & Steel Industry
      TC  	215, 216
American Iron & Steel Ins
      METL	143,146
ASARCO
      TC  	208
ASARCO
      HWIR	85
Association of Battery Recyclers
   .   MISC	167
      LEAD1	94, 98, 100
      TC	217
Association of Battery Reyclers
      LEAD1	94, 96
ASTSWMO

                                      ii

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      UHCS	247
AWPI
      WOOD2	278, 283
Battery Council International
      CADM	36
      HWIR	86, 89
      LEAD1	104, 106-111,113, 114
      LEAD2	130, 132
      MISC 	170
      SELE 	187, 188
      SLAG	194
      TC  	219, 223
Brush Wellman
      BERY	13,15, 18, 20,22,25
CHEM WASTE MGMT
      SUBJECT    	152
Chemical Waste Management
      ARSN	1
      METL	149, 153
      WOOD2	284
Cyprus Amax Minerals Comp
      State Authorization 	6
Department of Energy
      METL	143-145
DEPARTMENT OF ENV. PROTECTION
      MISC	167
DOD
      LEAD2	 129
Doe Run Resources Corp.
      MISC 	174
      TC  	220
EOF
      WOOD2	289
Electronics Industries As
      State Authorization 	12
Exxon Chemicals Americas
      HWIR	,	87
Florida DEP
      UHCS	239
FMC
      MISC 	!	177
      VAND  	268
      ZINC	296

                                    iii

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Friends of the Earth
      State Authorization  	3,6
GE
      HWIR	90
General Motors Corp
      METL	158, 160
Hazardous Waste Management
      METL	161
      WOOD2	292
Horsehead/Zinc Corp.
      UHCS  	243, 244
      UHCS	244
INMETCO
      NICK	183
      SELE 	191
International Cadmium Association
      CADM	47
JH BAXTER
      WOOD2	285
Kodak
      METL	142
      SLVR.SS 	201
      TC  	207
Lead Industries Association
      LEAD1	102
      LEAD2	124, 125
      METL	148
Magma Copper Co.
      TC	209
Merck
      MISC	171
Montana Dept. of Environment
      State Authorization  	2
National Mining Association
      State Authorization  	10
Natural Gas Pipeline Comp
      METL	146
New York DEC
      UHCS  	239
Non-Ferrous Founder's Soc
      CADM	33
      FOUN	74, 76
      LEAD2	128

                                      iv

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RETEC
       WOOD2	288
Rollins Environmental
       SELE	186
Rollins Environmental Services, Inc.
       TC 	214
RSR Corporation
       State Authorization  	8, 9
Safety-Kleen Corp.
       State Authorization  	7
Silver Coalition
       SLVR	197
SMA
       CADM	48
       CHRM	70
       LEAD2	138
       TC 	231
SSINA
       CHRM	66
       LEAD2	136
      TC 	224
SSPC
      LEAD2	127
      METL	155
Steel Manufacturer's Assoc.
      CHRM	59, 62
Steel Manufacturer's Association
      CADM	42, 43
The TDJ Group
      CADM	30
      CHRM	52, 53
      LEAD1	93
      LEAD2	121, 122
      TC 	212
      UHCS	242
U.S. Department of Energy
      State Authorization  	2
U.S. Department of Interior
      State Authorization  	11
Universal Forest Prod.
       WOOD2  	273
      WOOD2	270-272
UNIVERSAL FOREST PRODUCTS

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      WOOD2	269,270
Westinghouse
      LEAD2	126
      UHCS	260
                                    VI

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DCN               PH4P048
COMMENTER      Chemical Waste Management
RESPONDER       PJL
SUBJECT   ARSN
SUBJNUM  048
COMMENT
       In lieu of maintaining the current metal characteristic treatment
       standards CWM proposes that the Agency consider the establishment
       of two "High" subcategories for both Arsenic and Selenium wastewater
       and nonwastewaters. This is because both of these compounds present
       technical problems in achieving lower levels and it is not clear that the
       proposed levels can be met utilizing existing stabilization technology.
       The recommendations are as follows:
       1) Establish a "High Arsenic > 200 ppm subcategory" with a
       treatment level of 5 mg/1 for arsenic wastewater and
       nonwastewaters.
       2) Establish a "High Selenium > 200 ppm subcategory" with a
       treatment levels of 10 mg/1 for both wastewater and
       nonwastewaters.

RESPONSE

       With respect to establishing subcategories for arsenic and selenium, the Agency notes
that treatment standard for arsenic was not addressed in the current rulemaking and therefore, is
not soliciting any comments on this issue. Regarding the comment on high selenium
subcategory, EPA reviewed all the treatment data and has determined that, for the most part,
waste streams containing selenium exist either in relatively low concentrations (0.1 to 0.13 mg/L
TCLP) or in extremely high concentrations (greater than 450 mg/L TCLP). Waste Management,
Inc. submitted data for several waste streams containing high selenium. The Agency, after a
through review, believes that a treatment level of 5.7 mg/L TCLP for selenium could not be
achieved for these high selenium containing waste streams.  Therefore, in a separate companion
piece to this rule, the Agency is requesting comment on a proposal to grant a site-specific
treatability variance for Waste Management, Inc. for the treatment of these DO 10 wastes
containing greater than 450 ppm TCLP of selenium. The commenter is referred to a separate
notice contained in the Federal Register for this rule for additional information. The Agency is
promulgating the selenium treatment standard for all other wastes, covered by today's rule, at 5.7
mg/L TCLP.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

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COMMENT
•            In Part Three, Section II of the supplemental proposed rule, EPA discusses State
       authority primarily as it relates to Part One of the notice which pertains to mineral
       processing issues. DOE does not believe that State authority with respect to the "Other
       RCRA Issues," covered under Part Two of the proposed rule, has been adequately
       addressed. Specifically, clarification should be provided as to whether the exclusions of
       processed scrap metal and shredded circuit boards are considered by the Agency to be
       less stringent than current Federal regulations, and whether authorized states would be
       required to modify their programs to adopt requirements equivalent to the provisions
       contained in the proposed rule with respect to scrap metal and circuit boards. 2.  In Part
       Three, Section II of the supplemental proposed rule, EPA discusses State authority
       primarily as it relates to Part One of the notice which pertains to mineral processing
       issues. DOE does not believe that State authority with respect to  the "Other RCRA
       Issues," covered under Part Two of the proposed rule, has been adequately addressed.
       Specifically, clarification should be provided as to whether the exclusions of processed
       scrap metal and shredded circuit boards are considered by the Agency to be less stringent
       than current Federal regulations, and whether authorized states would be required to
       modify their programs to adopt requirement equivalent to the provisions contained in the
       proposed rule with respect to scrap metal and circuit boards.

(U.S. Department of Energy, 006)

RESPONSE
       The U;S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWTR
       Media Rule.

COMMENT
•      Streamlined Authorization MDEQ strongly supports EPA's proposal for expedited
       authorization of Phase IV program elements. MDEQ suggests that EPA expand this
       expedited authorization concept to most other program elements  as well. MDEQ agrees
       with EPA's evaluation that EPA need only ascertain that a State has the requisite legal
       authority and resources to implement a program and that detailed review is unnecessary.
       Such an  approach would bring to a close the seemingly endless process of application,
       comments and revisions that plague the authorization process. Please refer to the
       MDEQ,s earlier comments regarding the appropriateness of citing 40 CFR 267.  EPA
       should provide a better description or model of the public participation it considers
       necessary in developing regulations for land-based mineral processing units.

(Montana Dept.,of Environment, 023)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization

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       Streamlining.  The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            Section IV of these comments addresses the unprecedented, illegal, and
       inappropriate state authorization procedures the Agency proposed for implementing the
       exemption conditions applicable to the recycling of mineral processing wastes. As
       discussed in Section IV, the proposal abandons the fundamental principle that authorized
       state program requirements should be no less stringent than their federal counterparts and
       is structured so that neither EPA nor the public can evaluate whether a state program
       applies its requirements in a manner protective of human health and the environment and
       consistent with federal law.

(Friends of the Earth, EDF, 041)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            Under the guise of a "streamlined"  state authorization process, EPA has proposed
       state authorization requirements related to  mineral processing wastes that are both
       unlawful and unwise. As explained in this  portion of the comments, EPA's approach fails
       to satisfy the provisions of Sections 3006 and 3009 of RCRA, and forsakes the oversight
       of state program requirements needed to ensure protection of human health and the
       environment on a nationwide basis. Section 3006 of RCRA requires EPA to make
       express findings that  all three of the conditions specified in statute have been met before a
       state can be authorized to administer the RCRA program in lieu of EPA.

             Those three conditions are that the program is equivalent to the federal program,
       consistent with  the federal and other state programs, and provides for adequate
       enforcement. The equivalency determination under Section 3006 is further bounded by
       Section 3009 of RCRA, which prohibits a state from imposing requirements less stringent
       than those promulgated by EPA under Subtitle C of RCRA. Under EPA's proposal, states
       must demonstrate their mineral processing waste requirements have six components,
       including design and  operating conditions on units covered by this Rulemaking,
       groundwater protection criteria, and groundwater monitoring. However, in none of these
       areas (or the other three elements) do the proposed rules require that the state program
       requirements provide equivalent or greater protection than the federal rules proposed by
       the Agency. For example, under EPA's proposal, a state must demonstrate it can impose
       design standards on exempt units as a condition of obtaining the exemption, but the
       design requirements may be substantially weaker than the requirements EPA promulgated

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under option 2. Similarly, a state may impose groundwater monitoring, but the frequency
of monitoring, the constituents monitored, and the location of the point of compliance
may be less stringent than the federal rules proposed in option 1.

       In addition, the groundwater protection criteria may provide less protection of
human health and the environment than the comparable federal requirements. -
Therefore, notwithstanding the plethora of weaknesses in the proposed federal rules, the
proposed state authorization scheme contemplates a process whereby states may impose
less stringent requirements than those deemed necessary by EPA to protect human health
and the environment. This approach is completely without precedent under Subtitle C of
RCRA, in large part because it blatantly violates Sections 3006 and 3009 of RCRA. Even
with respect to Option 3, EPA will unable to ensure state program requirements provide
equivalent or better protection than the federal program,  and are  consistent with the
federal and other state programs. As EPA acknowledges in the case of option 3, it is
necessary to evaluate how the state will apply its authorities to individual cases. Yet
under the proposed authorization requirements, state authorization applications will only
contain information on program authorities, not how those  authorities have been or will
be employed.

       Moreover, EPA will limit its review of the application to whether a state has the
necessary authority, and not whether EPA does not intend to conduct the evaluation
necessary to ensure site-specific determinations under option 3 are protective of human
health and the environment, equivalent to and no less stringent than the federal program,
and consistent with the federal and other  state programs. It is also unclear whether in a
state authorization proceeding EPA would regard as germane comments from the public
on the application of state requirements to individual sites . Ironically, EPA justifies the
"streamlined" authorization approach because "states are familiar" with the kind of issues
raised by this Rulemaking and have existing programs that could be evaluated in this
context. Therefore, conducting the evaluation of how a state would apply its  authorities is
both timely and appropriate. Moreover' even if a state lacked an  extensive history of
making decisions resembling the site specific determination in the instant Rulemaking,
EPA can certainly request the state to articulate whether and under what circumstances a
state would entertain such site-specific applications, and the conditions the state would
apply under those circumstances.

       EPA's mandate under RCRA to ensure a baseline level of protection nationally
requires such a demonstration before inappropriate site-specific decisions are rendered,
particularly where EPA's authority to override authorized state decisions may be limited.
With respect to enforcement, the proposed authorization procedures lack any qualitative
review of a state program's enforcement resources, policies, record or capability. EPA
justifies this approach based upon the information already provided in previous RCRA
authorization applications, but in this case EPA anticipates some or all states may be
relying upon non RCRA authorities, in whole or in part, to satisfy the state authorization

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requirements . To date, it is highly unlikely the Agency has previously reviewed the
adequacy of a state's enforcement program under these non-RCRA authorities. Therefore,
under the proposed authorization procedures, EPA has no factual or valid basis for
rendering the enforcement finding for the non RCRA authorities required under Section
3006 of RCRA. Based upon the enforcement record of some states under their
non-RCRA authorities, this is a matter of grave concern.

       In brief, some states do not enforce their non-RCRA requirements effectively
unless there are mechanisms for providing active EPA review and oversight or citizen
intervention. Accordingly, it is imperative that adequate enforcement becomes an
important element of EPA's authorization review insofar as non-RCRA authorities form
the basis of a state's authorization application. For example, Arizona's historical
enforcement record using non-RCRA authorities is grossly inadequate. Documented
noncompliance for several hundred wastewater treatment plants, and chemical
contamination exceeding applicable limits for 10% of the facilities with
groundwater/aquifer protection permits, prompted the Sierra Club to file suit against the
Arizona Department of Environmental Quality seeking agency enforcement of its own
requirements and permits. More recently, years of delay by Arizona to revise its water
quality standards in a manner consistent with federal law prompted a federal court to
order EPA to finish the job and promulgate federal standards that would apply instead of
the state standards. Significantly, one the principal deficiencies in the  state standards was
an exemption for mining related impoundments,  the same units at issue in the instant
Rulemaking. The Court found that Arizona's failure to take appropriate action resulted in
substantial adverse environmental impacts to Arizona's lakes caused by mining
operations. The Court ordered EPA to promulgate the federal standards notwithstanding
EPA's pledge that the Agency (and not the state) would protect Arizona's waters from
exempt  mining activities.

       This case conclusively demonstrates the importance of baseline, enforceable
federal standards; and the need for active federal and public review and oversight of a
state's program requirements, particularly for mining activities in states where the
industry is politically powerful. Even if the proposed state authorization procedures were
lawful, they are flawed as a matter of policy. As EPA noted when it first proposed the
concept, a streamlined process is appropriate only where the regulatory changes are
"minor in nature" and do not involve major changes in regulatory approach . In the instant
Rulemaking, the proposed exemption for mineral processing land-based units is a matter
of first impression in the RCRA program, involving substantial and complex decisions
regarding the nature and extent of recycling in such units, and the  appropriate means of
ensuring such units do not become part of the waste management problem.

      These changes are neither "minor in nature" nor "a routine part of the RCRA
program". Moreover, when EPA first proposed the concept of streamlined authorization,
the Agency still required that state program requirements be no less stringent than the

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       promulgated federal requirements. In the instant Rulemaking, EPA unlawfully abandoned
       that fundamental principle.

(Friends of the Earth, EDF, 041)

RESPONSE
              The U.S. EPA appreciates the above comment regarding State Authorization
              Streamlining.  The U. S. EPA will respond to this comment in the upcoming Final
              HWIR Media Rule.

COMMENT
•      Cyprus Amax supports the concept of allowing authorized states or EPA Regions to make
       site-specific determinations of unit status; however, the proposed rule is unlawfully vague
       with respect to the parameters and procedures that would be used to make such
       determinations As an alternative to the prescriptive groundwater monitoring and design
       and operating requirements set forth in the proposed "conditional exclusion," EPA is
       considering allowing authorized states and EPA Regions to make site-specific
       determinations that land-based units are operating as process units, and not waste disposal
       units. 61 Fed. Reg. 2346. Cyprus Amax strongly supports the need for authorized states
       to make site-specific determinations of unit status that take into account non-RCRA state
       authorities. One good example of such authority is the APP program in Arizona. The
       proposed rule, however, is unlawfully vague with respect to the parameters and
       procedures that would be used to make such determinations. Although EPA has sketched
       out some of the criteria that it would use in determining whether to authorize state
       programs,  it has not provided sufficient guidance concerning how site-specific
       determinations would be made, nor does it specify whether and how such decisions could
       be appealed, and by whom. Instead, the Agency cites a nonexistent "environmental
       performance standard" at 40 C.F.R. REWRITE  267. 10 as the source of "the factors
       typically to be considered... in making site specific determinations." EPA should have
       provided notice and opportunity for comment on how it envisions site specific
       determinations of unit status would be made, including the factors to be considered, how
       the decision making process would be initiated and carried through to completion, and
       what types of appeal rights would be provided in the case of an adverse decision. The
       site-specific determination process should not incorporate or require any sort of
       "multi-pathway" modeling or analysis, given the speculative and inaccurate aspects of
       EPA's current models. Instead, site specific unit determinations of unit status must use
       relevant portions of existing regulatory programs (@,  state aquifer protection and mining
       programs).

(Cyprus Amax Minerals Comp, 046)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization

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       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            Safety-Kleen supports the Agency's intent to streamline the state authorization
       process Safety-Kleen looks forward to the more streamlined state authorization
       procedures that are to be presented in the upcoming proposed Hazardous Waste
       Identification Rule (HWIR) addressing Contaminated Media. Safety-Kleen conducts
       transport, storage, and/or treatment operations in 50 states and one U.S. territory, so we
       deal with the full array of state RCRA programs. One of the significant problems we face
       on a daily basis is identifying which requirements have been adopted by states, and when
       they receive authorization to implement the changed RCRA regulations.  When state
       authorization lags far behind Federal rule promulgation, we encounter problems with
       duplicative (and sometimes contradictory) permitting, inspection, and enforcement.  We
       also understand the frustrations of some states when efforts at obtaining state
       authorization take precedence over activities that have more immediate environmental
       protection consequences.

             We support the Agency's intent to streamline the state authorization process to the
       extent possible. Even with the anticipated streamlining of the state authorization
       programs, Safety-Kleen understands that major rulemakings (such as this proposed LDR
       rule) may have a significant lag between Federal promulgation and state authorization.
       This becomes particularly problematic when the revised regulations are not promulgated
       as HSWA rules (immediately effective in all states). The EPA has indicated that most of
       this proposed Supplemental Phase IV LDR regulation is considered to be a non-HSWA
       Rulemaking.

             Safety-Kleen disagrees, because the Rulemaking affects newly listed wastes and it
       makes changes to the LDR regulations, both of which should be considered to be HSWA
       rulemakings. Therefore, the EPA would be justified in determining that this is a HSWA
       Rulemaking.

(Safety-Kleen Corp., 047)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT ...-..--•
•            RSR  supports  EPA  's  proposed  streamlined  State authorization approach
       advanced in the rule. EPA  's rationale for this approach is sound and will help to ensure
       that badly needed revisions to the  RCRA regulatory program are expeditiously adopted

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      by RCRA-authorized States. RSR urges EPA, however, to review fully States' program
      requirements used to manage the materials at issue in this  Rulemaking.

(RSR Corporation, 054)

RESPONSE
      The U.S. EPA appreciates the above comment regarding State Authorization
      Streamlining.  The U. S. EPA will respond to this comment in the upcoming Final HWIR
      Media Rule.

COMMENT
•            RSR supports the proposed streamlined State Authorization Procedures but
      believes EPA should fully evaluate States' case-by-case determinations of Primary Metal
      Facilities Units. RSR supports  EPA  's proposed  streamlined  State authorization
      approach.  EPA 's rationale for the streamlined authorization approach is sound and the
      proposed revisions will help to ensure that badly needed revisions to the RCRA
      regulatory program are expeditiously adopted by States.  Under the current authorization
      procedures, all revisions to authorized State hazardous waste programs ~ including
      minor changes  — are potentially subject to the same level of scrutiny by EPA.

             RSR believes that the preparation, review, and processing of these program
      revisions represent a significant resource commitment on the part of EPA and the States.
      These commitments force many States to decline not to adopt regulatory changes to the
      RCRA program that EPA has promulgated. For example, in many States EPA is still
      implementing regulations promulgated pursuant to the Hazardous and  Solid Waste
      Amendments of 1984. The streamlined authorization approach recognizes that
      RCRA-authorized States have demonstrated the competency to  implement and enforce
      the  RCRA regulatory program. Currently, 49 states and territories have received final
      authorization (as defined in 40  C.F.R. Section 270.2) for the "base"  RCRA program.
      EPA has never withdrawn a State 's authorization for the RCRA program,
      demonstrating that States have exercised their authority over the  RCRA program in a
      manner that is  acceptable to EPA. Many States also have over a decade of experience in
      promulgating and implementing hazardous waste regulations. States that are authorized
      for the base RCRA program and portions of the  LDR program are familiar with the type
      of rule changes as well as the requisite legal requirements needed to implement rule
      revisions. EPA should build upon the competency and experience States have
      demonstrated,  and EPA 's trust in these  States, to allow rapid and streamlined
      authorization of RCRA regulatory revisions. RSR 's experience with three
      RCRA-authorized States (California, Indiana, New York) demonstrates the need for a
      streamlined authorization process.  On countless occasions over the past 12 years, EPA
      regulations were adopted in these and other States only after a delay of years, largely due
      to resource constraints.  Other important revisions have yet to be adopted at the State
      level,  RSR believes that little benefit is achieved if  RCRA reforms are not rapidly

                                           8

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       adopted by RCRA-authorized States. RSR disagrees with one aspect of the proposed
       streamlined authorization procedures. EPA has proposed that States would be authorized
       to make case-by-case determinations for units at primary metal facilities that are used to
       manage the materials at issue in this rule.  EPA states that it believes the addition of a few
       units does not significantly expand the State program, and that "another detailed
       evaluation by EPA is not warranted under such circumstances. RSR disagrees and
       believes that EPA should fully evaluate  how these units will be addressed under States'
       RCRA regulatory programs. The management of the materials at issue goes to the very
       heart of the debate as to whether these materials have contributed to the waste disposal
       problem.

              Moreover, the land placement of materials in these units is a prime focus of
       RCRA. EPA1 s generally applicable conditions for these units are intended to ensure that
       the units do not allow significant releases of the materials managed in them, thereby
       helping to ensure that the materials do not contribute to the very types of disposal
       problems Congress sought to address in RCRA.  EPA's evaluation of the authorized
       State should go beyond ascertaining only that the State has the requisite legal authorities
       and resources to control the land-based units, and should fully evaluate the States,
       programs for these units to ensure that they are properly designed, constructed, and
       maintained.

(RSR Corporation, 054)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•             NMA Supports An Expedited, Performance-Based Approach For State Program
       Authorization In  the supplemental Phase IV proposal, EPA reproposes and expands upon
       the expedited approach to state authorization that it proposed in the August 1995 Phase
       IV proposal.  61 Fed. Reg. at 2365-66. See also 60 Fed. Reg. 43,654,43,687 (Aug. 22,
       IS 195).  The Agency claims that it will "give great weight to statements and legal
       certification submilfted by the State[s]" in granting authorization. 61 Fed. Reg. at 2365.
       To this end, EPA proposes "to evaluate a limited number of specific criteria" aimed at
       ensuring that states have in place the "key requirements" for implementing the proposed
       revised definition of solid waste. Id. NMA supports an expedited approach for state
       program authorization.  As discussed below, however, the criteria identified by EPA in
       the proposed rule are overly prescriptive. Rather than imposing detailed criteria on the
       states to obtain authorization, the Agency should instead use a more performance-based
       approach, thereby allowing the states flexibility to demonstrate that their programs meet
       or exceed federal requirements. B.    EPA's Proposed Requirements For State

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      Authorization Are Overly  Prescriptive EPA sets forth three broad requirements that it
      would impose on states seeking authorization to implement the proposed regulations
      governing the status of land-based units in the mineral processing industry. First, EPA
      takes the position that state programs "must demonstrate that [they] can distinguish
      land-based units receiving mineral processing residuals Horn those units operating  as
      waste disposal units." 61 Fed. Reg. at 2365. It is unclear precisely ,what such a showing
      would entail, however. Although EPA points to the "environmental performance standard
      set forth at 40 C.F.R. ° 267. 10," id., no such provision currently exists in the Agency's
      rules, nor has regulatory language been proposed in the instant Rulemaking.  Instead,
      EPA has provided only a narrative description of a number of alternative potential
      requirements for the "conditional exclusion" from the definition of solid waste for
      mineral processing materials managed in land- based production units. Id. at 2341-48.
      That narrative suggests a complicated, prescriptive regulatory regime upon which the
      "performance standard" for state authorization would be based. Second, EPA asserts that
      states must have legal authority to: impose preventative measures, including design and
      operating conditions; establish groundwater protection criteria; require groundwater
      monitoring; and detect and remediate releases of hazardous constituents from the unit to
      groundwater, should such a release occur. EPA proposes that such state authority need
      not exist solely  under RCRA, and explicitly declares that, for instance, general aquifer
      protection authority would be sufficient for state authorization purposes. 61 Fed. Reg. at
      2365-66. NMA agrees that non-RCRA state legal authorities  should suffice to support
      state authorization to make determinations regarding the regulatory status of land-based
      units. Existing  state groundwater protection regimes, in concert with state clean water
      and solid/hazardous waste regimes, provide the necessary level of protection against
      potential risks to human health and the environment attributable to releases of pollutants
      or contaminants from land-based units to groundwater. An additional layer of federal
      regulation in this context is neither necessary or desirable. Finally, EPA declares that
      state programs must provide for public participation in site- specific determinations that
      land-based units qualify as "process units" within the scope of the "conditional
      exclusion." 61 Fed. Reg. at 2366. The Agency sets forth a number of examples of the
      type of "public participation" requirements it envisions would be appropriate in this
      context. Contrary to EPA's proposal, NMA's view is that states should be accorded the
      right to determine how best to factor public participation into site-specific determinations
      for mineral processing units. State programs already have in place public participation
      requirements, and through experience have determined what needs to be done to ensure
      that the public is informed of, and able to participate in, regulatory decisions, including
      site-specific  determinations.  It is neither necessary nor appropriate (particularly given the
      current movement in Washington towards devolving authority to the states and ending
      unfunded mandates) for EPA to subject state regulatory agencies to additional,
      prescriptive, public participation requirements for process unit determinations at mineral
      processing facilities.

(National Mining Association, 058)

                                            10

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RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            We also agree with EPA's proposal for expedited authorization for States to
       implement these rules.  It would simplify the process and would be cost-effective. We
       would also like to see the concept embodied in this proposal applied to capacity
       determinations.

(U.S. Department of Interior, 074)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            Site Specific Determinations from an Authorized State or By an EPA Region. We
       believe that this proposal is also appropriate and should be adopted. Site specific
       conditions are the best factors to consider in the determination of how to meet compliance
       standards and protect human health and the environment.

(U.S. Department of Interior, 074)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.

COMMENT
•            Incorporation Into State Law The Agency asserts that the proposed regulatory
       revisions for scrap metal and circuit boards have not been issued under the Hazardous and
       Solid Waste Amendments (HSWA), and as non-HSWA provisions it will not take effect
       in States until the State is authorized for those requirements. See 61 Fed. Reg. at 2365.
       We believe that the Agency should consider ways to include the proposal, as modified by
       the suggestions contained in these comments, to fall under HSWA so that the rule may
       become immediately effective in all states. In the absence of this approach,  regulated
       entities impacted by the rule could face an unwieldy patchwork of state requirements as
       states engage in the lengthy process of revising their- waste rules and/or authorizing
       legislation and EPA reviews and approves the changes. This process would likely take
       several years  and would significantly delay the realization of the: environmental benefits

                                          11

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       that will be derived from this rule. At minimum, the Agency should consider ways of
       providing incentives to states to ensure the prompt adoption of these regulatory revisions.
       Our concern in this regard is illustrated by our ongoing participation in efforts to promote
       state adoption of the so-called Universal Waste Rule, 40 C.F.R. Part, 273, in order to
       facilitate a voluntary industry program for the collection and recycling of nickel-cadmium
       batteries. Several states have succeeded in amending their hazardous waste statute or
       regulations to conform with the Universal Waste Rule, and other states have issued letters
       explaining that they will not initiate an enforcement action against entities involved with
       the recycling batteries in accordance with the rule. Progress in this regard has been slow,
       however, because of limited state resources and the need for states to address other
       pressing environmental concerns, many of which are the subject of statutory or judicial
       mandates. We are concerned that simply allowing states to exercise their discretion in
       deciding whether to conform their regulations to this proposal, without providing any
       additional incentive to do so, will 21 result in unnecessary delay in state adoption of these
       important revisions. EPA should consider ways to promulgate this proposal under
       HSWA or to devise appropriate incentives to encourage states to adopt these revisions in
       a prompt manner.

(Electronics Industries As, 083)

RESPONSE
       The U.S. EPA appreciates the above comment regarding State Authorization
       Streamlining. The U. S. EPA will respond to this comment in the upcoming Final HWIR
       Media Rule.
                                           12

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DCN         PH4P082
COMMENTER     Brush Wellman
RESPONDER       AC
SUBJECT          BERY
SUBJNUM         082
COMMENT

I.EPA Has Not Provided an Adequate Opportunity for the Public
to Comment on the Proposed Revision of the Universal Treatment
Standard for Beryllium.

As an initial matter, Brush Wellman objects to a procedural
impropriety in EPA's proposal to revise the universal treatment
standard for beryllium. The proposal is based upon the
Agency's receipt of additional data since the promulgation of the
original standard. 60 Fed. Reg. at 46383.According to EPA, the
additional data reflect the results of treating metal-bearing
streams through high temperature metal recovery ("HTMR")
technology. EPA has previously identified HTMR as the best
demonstrated available technology ("BDAT") for purposes of
establishing universal treatment standards for certain metal
constituents, including beryllium. 59 Fed. Reg.47982, 47997-99
(Sept. 19, 1994). In the preamble to the proposed rule, EPA
further indicates that the additional data demonstrate that HTMR
cannot consistently achieve the current universal treatment
standard for beryllium as measured by analysis of grab samples of
the treated material. Id. Based on these data, EPA has proposed to
revise the beryllium standard for nonwastewaters to 0.04 mg/1 TCLP.
Id.l

Brush Wellman and other members of the regulated community and the
public at large have been denied any opportunity whatsoever to
evaluate the data relied upon by EPA in making this proposal. This
is because, according to the preamble, the submitter of the data
declared them to be "Confidential Business Information."
1 While EPA has stated in the preamble that it proposes to make
such a revision, the actual language of the proposed regulatory
amendments set out in the Federal Register notice starting at 60
Fed. Reg. 43691 fails to include any language which would make
such a change.

Without an opportunity to review the data, Brush Wellman and
others cannot effectively comment on the proposed revision.  Brush

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Wellman has no information regarding the composition of the input
material, the composition of the treated material or even the
source of the treated waste stream. Without this basic information,
Brush Wellman is unable to evaluate and comment on whether the
newly submitted information actually supports the proposed
revision or even supports some other determination regarding the
establishment of a universal treatment standard for beryllium.
Brush Wellman's interest in reviewing this data is particularly
keen given the paucity of data relied upon by the Agency in
promulgating the original beryllium standard and the deficiencies
in that data as pointed out in comments regarding the universal
treatment standard proposal filed by Brush Wellman on March 4,
1994.

The absence of an opportunity to review the basis for the proposed
change to the beryllium standard constitutes an absolute failure to
satisfy the legal requirement of public notice and comment. Brush
Wellman is not aware of any instance where performance data
relied upon in promulgating regulatory standards of general
application has not been available for public notice and comment.
Brush Wellman urges the Agency to make the information
available and defer taking any final action regarding the proposed
revision to the beryllium standard until there has been  an adequate
opportunity for public notice and comment and the Agency's
consideration of any comment.

RESPONSE

       The Agency notes that the beryllium treatment standard of 0.04 mg/1 TCLP proposed in
the Phase IV original proposal (60 FR 43683, August 22,  1995) was based on composite data.
Recognizing that the use of composite data was not consistent with the BDAT methodology or
for that matter promulgated treatment standards, the Agency re-calculated the treatment standard
for beryllium based on available performance data from HTMR, using grab samples, and re-
proposed a treatment standard of 0.018 mg/1 TCLP (actually, 0.02 mg/1 due to rounding) in the
second supplemental proposed rule (62 FR 26045, May 12, 1997). The Agency made the data
and the methodology used to calculate this new standard available to the public as part of the
second supplemental proposal and provided sufficient  time for the commenters to review the data
and submit comments.

      . In response to public comment on the beryllium treatment standard proposed in the
second supplemental proposed rule, the Agency conducted a review of the data set used to
calculate the proposed standard.  As a result, the Agency agrees with the commenters that the
performance data used to calculate the proposed standard (0.02 mg/1) does not adequately

                                           14

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account for the difficulty in treating relatively high concentrations of beryllium wastes. The
Agency believes that the proposed UTS for beryllium must be revised to reflect a more difficult-
to-treat, high-concentration beryllium waste.  The Agency received stabilization data from Brush
Wellman, Inc., consisting of seven data points from the treatment of D008 rotary filter sludge
with cement kiln dust (CKD).  These data shows beryllium concentrations (mg/L TCLP) in the
untreated waste as follows: 95, 32, 49, 54, 97, 52. After treatment, the beryllium concentrations
(mg/L TCLP) were 0.58, less than 0.05, 0.31, 0.07, 0.06, less than 0.05, and 0.2.  Upon
examination, the Agency determined that this waste stream reflects a difficult to treat beryllium
waste, because of its extremely high concentrations of beryllium, and should be used in the
calculation of the treatment standard. The use of this data also addresses a major concern of
other commenters which was that while the proposed treatment standard was acceptable, it would
not or may not be appropriate with higher levels of beryllium in the waste stream. The Agency
believes that the data used in the Second Supplemental is not representative of a "difficult to
treat" beryllium-containing waste in that the untreated concentrations were from two to four
orders of magnitude less the untreated waste concentrations (mg/L TCLP) in the data submitted
by Brush Wellman (0.016, less than 0.5,  0.008,  less than 0.005).  The Agency has determined
that the data used to calculate the UTS for beryllium-containing nonwastewaters was inadequate
and not reflective of a difficult to treat beryllium waste. As such, the data has been removed
from the UTS data set and been replaced with the seven data points collected by Brush Wellman.
The Agency believes that this data is more appropriate for the beryllium UTS and addresses the
concerns raised by the commenters.  (For additional information on the data reviewed, see the
Background Document for Metal Wastes in the  Docket for this rule). As such, the Agency is
today promulgating a revised UTS for beryllium nonwastewaters of 1.22 mg/1 based on this
newly acquired data.

DCN               PH4P082
COMMENTER     Brush Wellman
RESPONDER       AC
SUBJECT           BERY
SUBJNUM          082
COMMENT
II.  EPA's Proposed Revision to the Universal Treatment Standard
for  Beryllium Still Will Not Establish an Appropriate Standard.

A.The Proposed Beryllium Standard of 0.04 mg/1 TCLP Is Less
Than That Necessary to Protect Human Health and the Environment

By  this rule, EPA is proposing to change the universal treatment
standard for beryllium to 0.04 mg/1 TCLP. This level is less than
that necessary to protect human health and the environment. While     -
the  universal treatment standard is a treatment standard,
treatment standards cannot be established "beyond the point at
which there is no threat' to man or nature."Hazardous Waste

                                          15

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Treatment Council v. EPA, 886 F.2d 2

Through its counsel, Brush Wellman has submitted a Freedom of
Information Act requestor the submitted data as well as any other
related documents. See EPA FOIA Request No. HQ-RIN-05119-95. Under
the Agency's rules, this request should require the submitter
to substantiate its claim of confidentiality and, if necessary,
enable Brush Wellman to challenge such a claim.
355, 361-64 (D.C. Cir. 1989), cert, denied 111 S. Ct. 139 (1990).
EPA has acknowledged this limitation on its authority to establish
LDR treatment standards. 58 Fed. Reg. 48092, 48095(September 14,
1993). Several facts demonstrate that 0.04 mg/1 is beyond the
point at which there is no threat to man or nature.

1 .Benchmark Values in the Storm Water Multi Sector General
Permit for Industrial Activities

Just recently, EPA established .13 mg/1 as the concentration level
for beryllium in stormwater "that if below, a facility represents
little potential for water quality concern." 60 Fed. Reg. 50803,
50825 (September 29, 1995). In light of this determination by EPA,
the universal treatment standard for beryllium should not be less
than .13 mg/1. In fact, applying EPA's rationale in the stormwater
rule, Brush Wellman believes that the universal treatment standard
for beryllium should be substantially higher.3

As explained by EPA in the preamble to the rule establishing the
Storm Water Multi-Sector General Permit for Individual Activities,
"benchmark" concentrations were being established for pollutants
against which stormwater monitoring data were to be
compared. Benchmarks are values "which EPA has used to determine if
a stormwater discharge from any given facility merits further
monitoring to insure that the facility has been successful
in implementing a stormwater pollution prevention plan." Id. at
50824. EPA's rationale in setting benchmark values demonstrates why
0.04 mg/1 is less than that necessary to protect human health and
the environment:

The "benchmarks" are the pollutant concentrations above which
EPA determined represents a level of concern. The level of concern
is a concentration at which a stormwater discharge could
potentially impair, or contribute to impairing, water quality or
affect human health from ingestion of water or fish. The benchmarks

                                           16

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are also viewed by EPA as a level, that, if below, a facility
represents little potential for water quality concern.
3 The reason for this statement is that the benchmark for
beryllium is based on the  1980 EPA acute freshwater criteria, which
are substantially lower than more recent criteria that are
hardness dependent. This is explained in detail in Attachment A hereto,
Comments of Brush Wellman on the Proposed Multi-Sector Storm Water
General Permit, February 15,1994. The final storm-water rule did
not acknowledge or respond to these comments, and Brush Wellman
is trying to determine what, if any, review these comments received
in that rulemaking. Id. at 50824-25.
If stormwater runoff, which can potentially enter a receiving stream
in large volumes at 0.13 mg/1 is not a level of concern, leachate in
much smaller volumes, should not be a concern at lower level.
Indeed, the tremendous difference in potential volumes between
stormwater discharges and leachate point to the fact that the level of
concern should be much higher for leachate than for stormwater.

RESPONSE

       The Agency notes to the commenter that the Land Disposal Restriction (LDR) program is
based on the premise that  regulated constituents are to be treated using the Best Demonstrated
Available Technology (BOAT) to minimize threats to human health and the environment,
because of the absence of certainty as to levels at which threats are minimized.   Further, the
Agency notes that the beryllium treatment standard of 0.04 mg/1 TCLP proposed in the Phase IV
original proposal (60 FR 43683, August 22, 1995) was based on composite data. Recognizing
that the use of composite data was not consistent with the BDAT methodology, the Agency re-
calculated the treatment standard for beryllium based on available performance data from
HTMR, using  grab samples, and re-proposed a treatment standard of 0.018 mg/1 TCLP (actually,
0.02 mg/1 due to rounding) in the second supplemental proposed rule  (62 FR 26045, May 12,
1997). The Agency made the data and the methodology used to calculate this new standard
available to the public as part of the second supplemental proposal and provided sufficient time
for the commenters to review the data and submit comments.

       In response to public comment on the beryllium treatment standard proposed in the
second supplemental proposed rule, the Agency conducted a review of the data set used to
calculate the proposed standard.  As a result, the Agency agrees with the commenters that the
performance data used to calculate the proposed standard (0.02 mg/1) does not adequately
account for the difficulty in treating relatively high concentrations of beryllium wastes. The
Agency believes that the proposed UTS for beryllium must be revised to reflect a more difficult-
to-treat, high-concentration beryllium waste.  Therefore, the Agency collected additional
treatment performance data on high beryllium containing  wastes (from Brush Wellman, Inc.) and
re-calculated the BDAT treatment standard for beryllium (for additional information on the  data

                                           17

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reviewed, see the Background Document for Beryllium Wastes in the Docket for this rule).  As
such, the Agency is today promulgating a revised UTS for beryllium nonwastewaters of 1.22
mg/1 based on this newly acquired data. With respect to the commenters point that the final
treatment standard is less than the level needed to minimize threats to human health and the
environment, EPA notes that the final treatment standard is an order of magnitude higher than the
level suggested by the commenter, and moreover, is a leach able level, not the total level the
commenter suggests.  Thus, EPA views this comment as moot.
DCN               PH4P082
COMMENTER      Brush Wellman
RESPONDER       AC
SUBJECT           BERY
SUBJNUM          082
COMMENT
2. Drinking Water Standard

The proposed universal treatment standard for beryllium of 0.04
mg/1 is ten times the drinking water standard for beryllium of
0.004 mg/1, expressed as a maximum contaminant level (MCL).
Considering the impact of a dilution factor of only ten times the
MCL one must conclude that the universal treatment standard for
beryllium is very conservative with respect to protection of human
health and the environment. When this conservative assumption is
combined with the conservative nature of the drinking
water standard for beryllium (and the erroneous computation of that
MCL in Brush Wellman's judgment), the result is a universal
treatment standard value that is beyond the point at which there is
no threat to human health.

In computing the .004 mg/1 drinking water standard, EPA applied an
uncertainty factor often on top of all the other safety factors
that are typically in every calculation of a drinking water
standard. 57 Fed. Reg. 31776, 31785 (July 17, 1992).
The overly-conservative nature of the .004 mg/1 standard is
demonstrated by the studies of Dr. Kenneth Morgareidge and his
collaborators. These studies exposed animals to levels of beryllium
that were considerably higher than that used by the Schroeder
and Mitchener study on which the MCL is based. These studies
establish a higher NOAEL than 0.5 mg/kg/day dose used by Schroeder
and Mitchener. This higher NOAEL should be used by EPA in

                                          18

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evaluating the risk to human health when ingesting beryllium.

Morgareidge et al. examined the incidence of tumor rates among
rats exposed to beryllium in food at levels of 0, 5, 50 and 500
ppm. Like Schroeder and Mitchener, Morgareidge et al. found no
differences in tumor rates between exposed and unexposed animals.
Morgareidge et al.'s results for males are graphed in Figure A,
and tests for statistical significance of differences in tumor
rates among different exposure groups are given in Figure B. The
corresponding graph and tests of significance for females are given
in Figures C and D.

Among the male rats, the incidence of tumors declined with
increasing levels of beryllium after 5 ppm. Among females the
pattern was not as consistent. Tumor rates among the 5 ppm group
were higher than rates among the 50 and 500 ppm groups, but the 500
ppm group had slightly higher rates than the 50 ppm group. In any
event, none of these differences were statistically significant.
Morgareidge also considered a host of toxicologic endpoints and
found no observable effects at any dose level. Figure E is
a calculation of a reference dose for beryllium using the
Morgareidge data in lieu of the Schroeder and Mitchener data. The
result is an MCL of 1.6 mg/1. This standard, in turn, would result
in a universal  treatment standard which minimized threat of 16
mg/1 TCLP after taking into account EPA's dilution factor of 10.4
Attached as Attachment B is the Morgareidge report of the rat
study. Also attached as Attachment C is the report of another study
(Gallo et al. 1976) in which Morgareidge participated. This report
study, a chronic feeding study using dogs and reporting a maximum
tolerated dose of between 50 and 500 ppm, further supports the
conclusion that the .004 mg/1 standard is overly conservative.

RESPONSE

       The Agency disagrees with the commenter that the beryllium treatment standard is
beyond the point at which there is no threat to human health. EPA, under the statutory
requirements of RCRA Sec. 3004(m), is legally obligated to establish treatment standards using
the best demonstrated available technology (BDAT). In addition, the Agency notes that the
beryllium treatment standard of 0.04 mg/1 TCLP proposed in the Phase IV original proposal (60
FR 43683, August 22,1995) was based on composite data. Recognizing that the use of
composite data was not consistent with the BDAT methodology, the Agency re-calculated the
treatment standard for beryllium based on available performance data from HTMR, using grab
samples, and re-proposed a treatment standard of 0.018 mg/1 TCLP (actually, 0.02 mg/1 due to

                                          19

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rounding) in the second supplemental proposed rule (62 FR 26045, May 12, 1997). The Agency
made the data and the methodology used to calculate this new standard available to the public as
part of the second supplemental proposal and provided sufficient time for the commenters to
review the data and submit comments.

      In response to public comment on the beryllium treatment standard proposed in the
second supplemental proposed rule, the Agency conducted a review of the data set used to
calculate the proposed standard. As a result, the Agency agrees with the commenters that the
performance data used to calculate the proposed standard (0.02 mg/1) does not adequately
account  for the difficulty in treating relatively high concentrations of beryllium wastes. The
Agency  believes that the proposed UTS for beryllium must be revised to reflect a more difficult-
to-treat,  high-concentration beryllium waste.  Therefore, the Agency collected additional
treatment performance data on high beryllium containing wastes (from Brush Wellman, Inc.) and
re-calculated the BDAT treatment standard for beryllium (for additional information on the data
reviewed, see the Background Document for Beryllium Wastes in the Docket for this rule). As
such, the Agency is today promulgating a revised UTS for beryllium nonwastewaters of 1.22
mg/1 based on this newly acquired data.]   EPA also notes that the LDR treatment standards may
be permissibly less than a drinking water standard, since those standards reflect consideration of
cost. (See HWTC III). However, the final treatment standard for beryllium — being
significantly higher than the various levels mentioned by this commenter ~ clearly is not
established below levels at which threats to human health and the environment are minimized.
DCN               PH4P082
COMMENTER      Brush Wellman
RESPONDER       AC
SUBJECT           BERY
SUBJNUM          082
COMMENT
3.Naturally-Occurring Levels of Beryllium

A prime example of the undue, although perhaps unintended,
consequences of establishing universal treatment standards can be
found in considering the effect of EPA's proposal that treatment
standards for contaminated soil which is a toxicity
characteristic metal waste be related to the universal treatment
standards applicable to not only the toxicity characteristic
contaminant but also any underlying hazardous constituents.
Under EPA's proposal generators of contaminated soil could be . .
required to treat a hazardous constituent even though it is not the
contaminant which had rendered the soil a hazardous waste. This
could result in treatment of a naturally-occurring element present

                                          20

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in the soil at levels that do not present any appreciable risk to
human health or the environment.

With its proposal, EPA seeks to apply treatment requirements with
respect to any underlying hazardous constituent which is found at
levels above the universal constituent-specific treatment standard
regardless of the source of the hazardous constituent. This
approach is particularly troublesome with respect to
naturally-occurring constituents such as beryllium. While EPA may
have statutory authority to require treatment of all hazardous
constituents in a hazardous waste from whatever source once that
waste becomes a prohibited waste, that authority cannot and should
not extend to requiring treatment of constituents beneath those levels
which are naturally present in the soil. However, such treatment could
be required under EPA's current proposal.

To investigate the potential pitfalls of using the universal
treatment standard as a basis for setting treatment standards for
contaminated soil, Brush Wellman gathered seventeen soil samples at
random locations in both residential and industrial areas in
or near ten cities in the United States. As indicated on Table A,
the total beryllium concentrations in these soils ranged from 0.28
to 1.29 mg/kg. TCLP extracts of these soil samples exhibited
beryllium concentrations ranging from 0.001 to  0.011 mg/1. The
high end of the range of TCLP values detected in these few tests
raise concerns about proposed universal treatment standard for
beryllium of 0.04 mg/1. Furthermore, according to the 1993
toxicological profile for beryllium prepared on behalf of the
Agency for Toxic Substances and Disease Registry, typical beryllium
concentrations in soil have been as high as 40.0 mg/kg.5 In a study
entitled "National Uranium Resource Evaluation",Report No. 89-341,
the Department of Energy determined that over 16,400 soil
samples out of a total of more than 678,500 locations contained
more than 5 ppm of beryllium. These higher beryllium content
naturally occurring soils could be expected to have TCLP levels
above the soils tested by Brush Wellman. Thus,  TCLP tests on soils
at the upper range of natural occurrence could easily exceed the
proposed universal treatment standard for beryllium and thereby
trigger the requirement to treat the soil. Brush Wellman believes
that it is both unlawful and unreasonable to trigger treatment of
soil as a result of naturally occurring levels of beryllium.
Accordingly, EPA should reevaluate the use of the universal
treatment standard as a trigger for requiring treatment of

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contaminated soil.

5 The beryllium profile reports that beryllium is prevalent
throughout the environment and can even be found in a variety of
common foodstuffs.

RESULTS OF BERYLLIUM ANALYSIS FOR RANDOM SOIL
SAMPLES (THIS TABLE DID NOT SCAN - SEE HARD COPY)
RESPONSE

RESPONSE:

      See the "Soils" Response to Comment section for a response to this comment.

DCN              PH4P082
COMMENTER     Brush Wellman
RESPONDER       AC
SUBJECT          BERY
SUBJNUM         082
COMMENT
B.The Proposed Beryllium Standard of 0.04 mg/1 TCLP Is Not
Adequately Supported by the Information Relied Upon by the Agency.

In comments filed on March 4, 1994, Brush Wellman challenged the
technical adequacy of the data relied upon by EPA in promulgating
the universal treatment standard for beryllium. The Agency's
proposed revision of that standard suffers from the same
deficiencies as the original standard. The proposed revision
apparently continues to be based upon treatment data relating to a
single waste stream which has not been demonstrated to be
replicable in other waste streams.  Secondly, the data do not
demonstrate that treatment of beryllium actually occurs as a
result of HTMR; rather, the data suggest that the beryllium is only
concentrated in the output of the HTMR process without necessarily
any reduction in the mobility of any beryllium.

As explained in Section I, Brush Wellman has not had an
opportunity to review the newly received data relied upon by EPA in
proposing the revised beryllium standard. Nevertheless, based upon
EPA's statement that the new data were from a HTMR facility, and	
Brush Wellman's understanding that HTMR currently is only
commercially available to treat K061 hazardous waste, Brush Wellman
believes that the revised standard is based upon data which may

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not be universally representative of the treatability of metals in
other waste streams. The HTMR data relied upon by EPA relates to
processes designed to recover zinc from waste with high
residual zinc values, primarily K061 wastes. Commercially viable
recovery and treatment of this low boiling point metal through HTMR
cannot be used to support a conclusion that comparable success is
achievable with respect to high boiling point metals such as
beryllium.

There is no evidence from the data made available for review that
HTMR actually treats or recovers beryllium. The background
documents which present and summarize the HTMR performance data
considered by the Agency do not contain  any data which compare
TCLP beryllium concentrations for samples before and after HTMR
processing. Thus, it appears that the reduction in mobility of
beryllium as a result of HTMR was not even evaluated, let
alone statistically confirmed. Indeed, HTMR apparently does not
even reduce the concentration of beryllium in the treatment
residues. Rather, the very limited data indicate that the total
beryllium concentration in  the treated K061 is higher than in the
Untreated waste. In the only data set accepted by EPA which compares
beryllium concentrations of both untreated and treated samples, the
beryllium concentration in  each treated sample exceeded the
beryllium concentration in  each corresponding untreated sample.  See
Table 1-12, Final Data Document for Characterization
and Performance of High Temperature Metals Recovery Treatment and
Stabilization for Metal-Bearing Nonwastewaters (EPA July 1994).
Characterization and Performance of High Temperature Metals
Recovery Treatment and Stabilization for Metal-Bearing
Nonwastewaters (EPA July 1994).

The premise underlying EPA's reliance upon treatment data relating
to a single type of waste stream in promulgating a universal
treatment standard applicable to all regulated hazardous wastes is
that HTMR is a matrix independent process. According to EPA, the
chemical and physical composition of the waste stream being
introduced in the process do not have any material impact upon the
achievability of any of the treatment standards. While EPA may
believe that it had sufficient data to conclude that HTMR is matrix
independent with respect to recovery and treatment of zinc, this
premise was not demonstrated to be true with respect to other
metals such as beryllium through evaluation of any treatment data
available to EPA. Moreover, EPA's own statements acknowledge the

                                          23

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extreme variability in HTMR processes depending on a variety
of factors, including input composition. For example, on page 5-8
of the Final BDAT Background Document (Addendum) for All
Nonwastewater Forms of K061 issued in July 1992, EPA states:
Hence, the metal distribution in the HTMR process is highly
depending upon parameters such as the operating temperature of the
heat zones, the composition of metals and other elements in the
feed, zone residence times, flow rates, oxidation/reduction
conditions, and mixing.... Based on these factors, the Agency
concludes that all metal-bearing materials (nonhazardous as well as
hazardous) placed into HTMR processes could affect the ultimate
composition and teachability of metals from HTMR nonwastewater
residues.

In sum, Brush Wellman still has serious doubts about the adequacy
of the data reviewed by the Agency and the Agency's reliance upon
data from a single waste stream in promulgating a treatment
standard to be applied universally. As explained immediately
below, the ability to transfer HTMR-based data from the treatment
of K061 to other waste streams becomes evermore important now that
EPA has proposed to apply the HTMR-based universal
treatment standards to the toxicity characteristics metal wastes
for underlying hazardous constituents.

RESPONSE

       In response to public comment on the beryllium treatment standard proposed in the
second supplemental proposed rule, the Agency conducted a review of the data set used to
calculate the proposed standard.  As a result, the Agency agrees with the commenters that the
performance data used to calculate the proposed standard (0.02 mg/1) does not adequately
account for the difficulty in treating relatively high concentrations of beryllium wastes.  The
Agency believes that the proposed UTS for beryllium must be revised to reflect a more difficult-
to-treat, high-concentration beryllium waste. The Agency received stabilization data from Brush
Wellman, Inc., consisting of seven data points from the treatment of D008 (lead-containing)
rotary filter sludge with cement kiln dust (CKD). These data show that beryllium concentrations
in the untreated waste were as follows (mg/L TCLP): 95, 32,49,  54,97, 52.  After treatment, the
beryllium concentrations (mg/L TCLP) were: 0.58, less than 0.05,0.31,0.07,0.06, less than
0.05, and 0.2. Upon examination, the Agency determined that this waste stream reflects a
difficult to treat beryllium waste and should be used in the calculation of the treatment standard.

                                          24

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(The use of this data also addresses a major concern of this commenter and another commenter,
which was that while the standard was acceptable, it would not or may not be appropriate with
higher levels of beryllium in the waste stream.) The Agency believes that the data used in the
Second  Supplemental was not representative of a "difficult to treat" beryllium-containing waste
in that the untreated waste concentrations were from two to four orders of magnitude less than
the untreated waste concentrations (mg/L TCLP) in the data submitted by Brush Wellman
(0.016, less than 0.5,  0.008, less than 0.0050).  The Agency has determined that the data used to
calculate the UTS for beryllium-containing nonwastewaters was inadequate and not reflective of
a difficult  to treat beryllium waste. As such, that data has been removed from the UTS data set
used in the Second Supplemental proposal and replaced with the seven data points collected by
Brush Wellman. The Agency believes that this data is more appropriate fro the beryllium UTS
and addresses the concerns raised by the commenters. See the Background Document for Metal
Wastes in  the Docket for this rule). As such, the Agency is today promulgating a revised UTS
for beryllium nonwastewaters of 1.22 mg/1 based on this newly acquired data.

      The Agency also would like to note that if a particular waste possesses unique properties
making  it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

DCN               PH4P082
COMMENTER      Brush Wellman
RESPONDER       AC
SUBJECT          BERY
SUBJNUM         082
COMMENT
III. EPA Has Not Adequately Considered the Ramifications of
Applying the Universal treatment Standards for Metals to the
Toxicity Characteristic Metal Wastes, Including the Requirement
that Underlying Hazardous Constituents of Such Wastes Meet
Those Standards.

With its proposed expansion of the application of the universal
treatment standards to the toxicity characteristics metal wastes,
EPA has greatly increased the universe of wastes which will be
required to achieve the BDAT-based standards. However, Brush
Wellman is concerned that EPA's reliance solely upon previously
existing data relating  to a single waste stream (as least as far as
beryllium  is concerned) accompanied by the Agencies failure to
develop and consider treatment data from different  waste streams-
with significantly different chemical and physical compositions
constitutes an inadequate technical basis for imposing such a
significant change upon the regulated community.

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No longer will the universal treatment standard for beryllium
apply just to K061; rather, EPA proposes to apply it to any
toxicity characteristic metal waste which contains beryllium.  Brush
Wellman believes it is inappropriate to take a treatment standard
which was derived solely from treatment data for a single
low-beryllium waste stream and apply such a standard to
many diverse waste  streams which may contain significantly higher
concentrations of beryllium.

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%beryIlium. 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

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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.
RESPONSE

       The Agency provided several opportunities for the commenters to submit additional data
on the treatability of beryllium using stabilization and HTMR technologies in the Phase IV
original proposal (60 FR 43654, August 22, 1995), the first supplemental Phase IV proposal (61
FR 2338, January 25,1996), and the most recently proposed Phase IV second supplemental
proposal (62 FR 26041, May 12, 1997). Since no information was provided by the commenters,
the Agency collected its own performance data (based on grab samples) from commercial HTMR
and stabilization facilities. EPA calculated the treatment standards based on both HTMR and
stabilization and selected the highest standard (less stringent) for each metal to establish the UTS
and allow for process variability and detection limit difficulties. Based on these data, EPA re-
proposed a beryllium treatment standard of 0.018 mg/1 TCLP (actually, 0.02 mg/1 due to
rounding) in the second supplemental proposed rule (62 FR 26045, May  12, 1997).

       In response to the second supplemental proposal several commenters stated that the
beryllium stabilization performance data used by the Agency was quite limited and reflected the
treatment of wastes having a very low beryllium content. Furthermore, commenters questioned
whether the proposed standard of 0.02 mg/1 TCLP could be met by conventional stabilization
techniques in the case of higher beryllium content wastes.  Other commenters stated that they
could not support the treatment standards because EPA has not demonstrated that existing

                                          27

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commercial technologies were capable of achieving the proposed standards or that technologies
were otherwise available.

       In response to the comments received on the beryllium treatment standard, the Agency
conducted a review of the data set used to calculate the proposed standard.  The review indicated
that, consistent with the commenter's concerns, the data used by the Agency to calculate the
standard was based on wastes containing low concentrations of beryllium (between 0.0050 and
0.5 mg/1 TCLP). As a result, the Agency agrees with the commenters that the performance data
used to calculate the proposed standard (0.02 mg/1) does not adequately account for the difficulty
in treating relatively high concentrations of beryllium wastes. The Agency believes that the
proposed UTS for beryllium must be revised to reflect a more difficult-to-treat, high-con [The
Agency acknowledges the commenters concerns, and notes that the beryllium treatment  standard
of 0.04 mg/1 TCLP proposed in the Phase IV original proposal (60 FR 43683, August 22, 1995)
was based on composite data. Recognizing that the use of composite data was not consistent
with the BDAT methodology, the Agency re-calculated the treatment standard for beryllium
based on available performance data from HTMR, using grab samples, and re-proposed a
treatment standard of 0.018 mg/1 TCLP (actually, 0.02 mg/1 due to rounding) in the second
supplemental proposed rule  (62 FR 26045, May 12, 1997). The Agency made the data and the
methodology used to calculate this new standard available to the public as part of the second
supplemental proposal and provided sufficient time for the commenters to review the data and
submit comments.
       In response to public comment on the beryllium treatment standard proposed in the
second supplemental proposed rule, the Agency conducted a review of the data set used to
calculate the proposed standard. As a result, the Agency agrees with the commenters that the
performance data used to calculate the proposed standard (0.02 mg/1) does not adequately
account for the difficulty in treating relatively high concentrations of beryllium wastes. The
Agency believes that the proposed UTS for beryllium must be revised to reflect a more difficult-
to-treat, high-concentration beryllium waste. The Agency received stabilization data from Brush
Wellman, Inc., consisting of seven data points from the treatment of D008 (lead-containing)
rotary filter sludge with cement kiln dust (CKD). These data show that beryllium concentrations
in the untreated waste were as follows (mg/L TCLP): 95, 32,49, 54, 97, 52. After treatment, the
beryllium concentrations (mg/L TCLP) were: 0.58, less than 0.05,0.31, 0.07,0.06, less than
0.05, and 0.2. Upon examination, the Agency determined that this waste stream reflects a
difficult to treat beryllium waste and should be used  in the calculation of the treatment standard.
(The use of this data also addresses a major concern  of this commenter and another commenter,
which was that while the standard was acceptable, it would not or may not be appropriate with
higher levels of beryllium in the waste stream.)  The Agency believes that the data used in the
Second Supplemental was not representative of a "difficult to treat" beryllium-containing waste
in that the untreated waste concentrations were from two to four orders of magnitude less than
the untreated waste concentrations (mg/L TCLP) in the data submitted by Brush Wellman
(0.016, less than 0.5, 0.008, less than 0.0050). The Agency has determined that the data used to

                                           28

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calculate the UTS for beryllium-containing nonwastewaters was inadequate and not reflective of
a difficult to treat beryllium waste. As such, that data has been removed from the UTS data set
used in the Second Supplemental proposal and replaced with the seven data points collected by
Brush Wellman. The Agency believes that this data is more appropriate fro the beryllium UTS
and addresses the concerns raised by the commenters. See the Background Document for Metal
Wastes in the Docket for this rule).  As such, the Agency is today promulgating a revised UTS
for beryllium nonwastewaters of 1.22 mg/1 based on this newly acquired data.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
                                          29

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DCN               PH4P026
COMMENTER      The TDJ Group
RESPONDER       AC
SUBJECT           CADM
SUBJNUM          026
COMMENT

2) The Agency is apparently unaware of the availability or the
effectiveness of stabilization practices on multiple contaminant
characteristic hazardous wastes.

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 single 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).

RESPONSE

       The Agency agrees with the commenter that the stabilization chemistry can be different
from one waste to another.  In order to better account for such variations in waste characteristics,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterize the diversity of metal
wastes.  The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge.  These waste
streams contained multiple metals which would be representative of a characteristic waste with
UHCs and significant concentrations of combination metals including: lead and. cadmium
(untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP and 338
mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP and 50.7
mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and antimony

                                          30

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(untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP).  Based on this data collection
effort, the Agency believes that it has addressed the issue of effective multiple contaminant
waste stabilization in two ways: (1)  Utilization of treatment data that contains multiple metals;
and (2) the utilization of these data to generate treatment standards.  The Agency agrees with the
commenter that the stabilization "recipe" may need to be adjusted to account for the variability
of the waste contaminants, however the Agency can not find any information that would suggest
that multiple waste codes cannot be stabilized to the treatment levels, when effective stabilization
processes are used. (The Agency does note an exception for the metal constituent, Selenium
which was discussed in detail in the Second Supplemental preamble as well as the response to
comments).  The Agency also notes that many of the multiple-contaminant waste streams
contained significant lead concentrations in addition to other metal constituents and still achieved
low treatment levels. See memorandum entitled, "Final Revised Calculation of Treatment
Standards Using Data Obtained From Rollins Environmental's Highway 36 Commercial Waste
Treatment Facility and GNB's Frisco, Texas Waste Treatment Facility," March 10,1997.  While
the Agency notes that in the past it has 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" (See 55FR 22520,22565 (June 1, 1990)), the Agency believes
that the standards being proposed today can be met in metal waste streams. See memorandum
entitled, "Development of Metal Standards" which can be found in the Background Document
for Metal Wastes in the RCRA docket for today's rule.

      In the 1991 USEPA document entitled, "Treatment Technology Background Document"
EPA it states that, "... determining whether stabilization will achieve the same level of
performance on an untested waste that it achieved on a previously tested waste and whether
performance levels can be transferred, EPA examines the following waste characteristics: (a) the
concentration of fine particulates, (b) the  concentration of oil and grease, (c) the concentration of
organic compounds, (d) the concentration of sulfate and chloride compounds, and (e) the
solubility of the metal compound.  For both cement-based and lime-pozzzolan-based processes,
very fine solid materials (i.e., those that pass through a No. 200 mesh sieve weaken the bonding
between waste particles and the cement or lime/pozzolan binder by the coating particles	Oil
and grease in both cement-based and lime/pozzolan-based systems result in the coating of waste
particles and the weakening of the bond between the particles and the stabilizing agent, thereby
decreasing the resistance of the material to leaching	Organic compounds in the waste interfere
with the stabilization chemical reactions and bond formation, thus inhibiting curing of the
stabilized material. This interference results in a stabilized waste having decreased resistance to
leaching	Sulfate and chloride compounds interfere with the stabilization chemical reactions,
weakening bond strength and prolonging  setting and curing time.  Sulfate and chloride
compounds may reduce the dimensional stability of the cured matrix, thereby increasing
leachability potential....The metal to be stabilized should be in its least soluble state, or the
stabilized waste may exhibit a potential for increased leachability..."

      While the Agency cannot be aware of all "waste" situations, information available to the
Agency does suggests that multiple metals would not be difficult to treat to the promulgated

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treatment standards when an appropriate and optimized stabilization "recipe" is employed.
While the size of the particulate may pose a problem, the Agency has information that foundry
sand would have a mesh sieve size ranging from between 70 and 80. (See "Leaded Copper Alloy
Reactions With Molding Sands and  Sand Response to Acid Leaching," in the docket), this size of
sand would not negatively affect the stabilization of a foundry sand.  Based on all this
information, the Agency believes that the performance data used to develop the UTS finalized in
the Second Supplemental rule (62 FR 26041, May 12,1997) adequately characterizes the
diversity among metal-bearing wastes including wastes containing multiple metals.

       However, the Agency has identified a technical error in the BDAT determination of the
proposed cadmium standard.  In applying the BDAT methodology for calculating the treatment
standard, EPA failed to perform a "Z-score" outlier test. As stated in the EPA document, "Final
Best Demonstrated Available Technology for Quality Assurance Quality Control Procedures and
Methodology." October 23, 1991 " ...an outlier in a data set is an observation (or data point) that
is significantly different from the other data. The measure of difference is determined by the
statistical methods know as a Z-score.  Because the outlier test assumes data to be normally
distributed, it is necessary to transform  the data by computing the logarithm of each data point
before performing the outlier test. The Z-score is calculated by dividing the difference between
the data point and the average of the data set by the standard deviation. For data, that is normally
distributed, 95 percent (or two standard deviations) of the measurements will have a Z-score
between -2.0 and 2.0. A data point outside this range is not considered to be representative of the
population from which the data are drawn. EPA uses this statistical method to confirm that
certain data do not represent treatment by a well-operated system.  The Agency uses this method
only in cases where data on the design and operation of a treatment system were limited. This
method is a commonly used technique for evaluating data sets."

       The Agency corrected this error and re-calculated the cadmium treatment standard and is
promulgating the UTS for cadmium at 0.11  mg/1 TCLP. Although this standard is more stringent
than the proposed standard, based on the treatment performance data reviewed, the Agency
believes that this new standard is also achievable by treatment technologies such as stabilization
and HTMR.  With respect to data submitted in response to the Second Supplemental, two
commenters submitted data on chromium, one commenter submitted data with 152 data points,
all of which were recorded as less than 0.02 mg/L TCLP. The other commenter submitted 106
data points on treated battery slag which ranged from 0.01  to 0.04 mg/L TCLP. EPA's own
stabilization data on cadmium showed a calculated treatment standard of 0.014 mg/L TCLP.
One commenter, ETC did submit a comment which provided treatment standards statistically
derived from ETC data from which a standard of 0.20 mg/L TCLP was calculated.  However, the
Agency was unable to assess the accuracy of the calculation (The commenter did state that there
may be outliers in their data) or view the raw data.
       The Agency also would like  to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a  treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

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DCN        PH4P045
COMMENTER     Battery Council International
RESPONDER      AC
SUBJECT          CADM
SUBJNUM         045
COMMENT
11. Other metals, such as cadmium and selenium, also have unique
analytical problems in the high TDS matrices at very low
concentrations. In the proposed LDR Phase IV, both cadmium and
selenium are proposed at concentrations that are almost an order
of magnitude below the current limit. The proposed TCLP
concentrations for these metals thus is likely to fall outside the
PQL for analytical methods currently in use.

RESPONSE

       The Agency notes that high Total Dissolved Solids (TDS) may interfere in determination
methods during the analysis of wastewaters because of viscosity and chemical differences
between the standards and the sample. However, this interference may be compensated for by
using dilution, matrix matching, and/or the method of standard additions. The Agency believes
that the commenter is in error regarding the proposed treatment levels and that the levels to
which cadmium and selenium may be accurately measured in a TCLP extract. The cadmium and
selenium standards of 0.11 mg/1 and 5.7 mg/1 TCLP are over 1,000 times the detection limits of
available determinative methods employing FLAA, GFAA, or ICPMS.
DCN         PH4P072
COMMENTER     Non-Ferrous Founder's Soc
RESPONDER      AC
SUBJECT          CADM
SUBJNUM         072
COMMENT
More Stabilization Technology Performance Data is Necessary to set
the UTS for Cadmium and Lead: Comments submitted by the AFS
demonstrate the need for data on this important aspect of the LDR
IV proposed rule. NFFS firmly believes that UTS levels for TC
metals (non-wastewater) cannot be established by EPA until such
data is reviewed by the agency. In addition, BOAT is  dependent on
HTMR being demonstrated and commercially available.

RESPONSE
                                        33

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       The Agency notes that, in response to the concerns raised by the commenter regarding the
lack of stabilization data for TC metal wastes, EPA conducted site visits to commercial
hazardous waste treatment facilities and collected additional stabilization treatment performance
data that better characterized the diversity of metal wastes.  In order to better account for such
variations in waste characteristics, the Agency conducted site visits to commercial hazardous
waste treatment facilities and collected additional stabilization treatment performance data that
better characterize the diversity of metal wastes.  The stabilization performance data (based on
grab samples) represented a wide range of metal-bearing wastes (both listed and characteristic)
including mineral processing wastes, foundry waste, baghouse dust, battery slag, soils, pot solids,
recycling by-products, and sludge. These waste streams contained multiple metals which would
be representative of a characteristic waste with UHCs and significant concentrations of
combination metals including lead and cadmium (untreated concentrations 13mg/L TCLP and
4090 mg/L TCLP and 11.7 mg/L TCLP and 338 mg/L TCLP respectively). Based on this data
collection effort, the Agency believes that it has addressed the issue of effective multiple
contaminant waste stabilization in two ways: (1)  Utilization of treatment data that contains
multiple metals; and (2) the utilization of these data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however the Agency can not find any information that
would suggest that multiple waste codes cannot be stabilized to the treatment levels, when
effective and optimized stabilization processes are used. (The Agency does note an exception for
the metal constituent, Selenium which was discussed in detail in the Second Supplemental
preamble as well as the response to comments). The Agency also notes that many of the
multiple-contaminant waste streams contained significant lead concentrations in addition to  other
metal constituents and still achieved extremely low treatment levels. See memorandum entitled,
"Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas
Waste Treatment Facility," March 10,  1997.

       In the 1991 USEPA document entitled, "Treatment Technology Background Document"
EPA it states that, "... determining whether stabilization will achieve the same level of
performance on an untested waste that it achieved on a previously tested waste and whether
performance levels can be transferred, EPA examines the following waste characteristics: (a) the
concentration of fine particulates, (b) the concentration of oil and grease, (c) the concentration of
organic compounds, (d) the concentration of sulfate and chloride compounds, and (e) the
solubility of the metal compound. For both cement-based and lime-pozzzolan-based processes,
very fine solid materials (i.e., those that pass through a No. 200 mesh sieve weaken the bonding
between waste particles and the cement or lime/pozzolan binder by the coating particles	Oil
and grease in both cement-based and lime/pozzolan-based systems result in the coating of waste
particles and the weakening of the bond between the particles and the stabilizing agent, thereby
decreasing the resistance of the material to leaching	Organic compounds in the waste interfere
with the stabilization chemical reactions and bond formation, thus inhibiting curing of the
stabilized material.  This interference results in a stabilized waste having decreased resistance to
leaching	Sulfate and chloride compounds interfere with the stabilization chemical reactions,

                                           34

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weakening bond strength and prolonging setting and curing time. Sulfate and chloride
compounds may reduce the dimensional stability of the cured matrix, thereby increasing
leachability potential....The metal to be stabilized should be in its least soluble state, or the
stabilized waste may exhibit a potential for increased leachability..."

       While the Agency can not be aware of all "waste" situations, information available to the
Agency does suggests that multiple metals would not be difficult to treat to the promulgated
treatment standards when an appropriate and optimized stabilization "recipe" is employed.
While the size of the particulate may pose a problem, the Agency has information that foundry
sand would have a mesh sieve size ranging from between 70 and 80. (See "Leaded Copper Alloy
Reactions With Molding Sands and Sand Response to Acid Leaching," in the docket), this size of
sand would not negatively affect the stabilization of a foundry sand.  Based on all this
information, the Agency believes that the performance data used to develop the UTS finalized in
the Second Supplemental rule (62 FR 26041, May 12,1997) adequately characterizes the
diversity among metal-bearing wastes including wastes containing multiple metals.

       However, the Agency has identified a technical error in the BDAT determination of the
proposed cadmium standard.  In applying the BDAT methodology for calculating the treatment
standard, EPA failed to perform a "Z-score" outlier test. As stated in the EPA document, "Final
Best Demonstrated Available Technology for Quality Assurance Quality Control Procedures and
Methodology." October 23, 1991 " ...an outlier in a data set is an observation (or data point) that
is significantly different from the other data. The measure of difference is determined by the
statistical methods know as a Z-score. Because the outlier test assumes data to be normally
distributed, it is necessary to transform  the data by computing the logarithm of each data point
before performing the outlier test. The Z-score is calculated by dividing the difference between
the data point and the average of the data set by the standard deviation. For data, that is normally
distributed, 95 percent (or two standard deviations) of the measurements will have a Z-score
between -2.0 and 2.0. A data point outside this range is not considered to be representative of the
population from which the data are drawn.  EPA uses this statistical method to confirm that
certain data do not represent treatment by a well-operated system. The Agency uses this method
only in cases where data on the design and operation of a treatment system were limited. This
method is a commonly used technique for evaluating data sets."

       The Agency corrected this error and re-calculated the cadmium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP. Although this standard is more stringent
than the proposed standard, based on the treatment performance  data reviewed, the Agency
believes that this new standard is also achievable by  treatment technologies such as stabilization
and HTMR.  With respect to data submitted in response to the Second Supplemental, two
commenters  submitted data on chromium, one commenter submitted data with 152 data points,
all of which were recorded as less than 0.02 mg/L TCLP. The other commenter submitted 106
data points on treated battery slag which ranged from 0.01 to 0.04 mg/L TCLP.  EPA's own
stabilization data on cadmium showed a calculated treatment standard of 0.014 mg/L TCLP.
One commenter, ETC did submit a comment which provided treatment standards statistically

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derived from ETC data from which a standard of 0.20 mg/L TCLP was calculated.  However, the
Agency was unable to assess the accuracy of the calculation (The commenter did state that there
may be outliers in their data) or view the raw data.
      The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

DCN         PH4P045
COMMENTER      Battery Council International
RESPONDER       AC
SUBJECT          CADM
SUBJNUM          045
COMMENT
11.  Other metals, such as cadmium and selenium, also have unique
analytical problems in the high TDS matrices at very low
concentrations. In the proposed LDR Phase IV, both cadmium and
selenium are proposed at concentrations that are almost an order
of magnitude below the current limit. The proposed TCLP
concentrations for these metals thus is likely to fall outside the
PQL for analytical methods currently in use.

RESPONSE

      The Agency notes that high Total Dissolved Solids (TDS) may interfere in  determination
methods during the analysis of wastewaters because of viscosity and chemical differences
between the standards and the sample. However, this interference may be compensated for by
using dilution, matrix matching, and/or the method of standard additions. The Agency believes
that the commenter is in error regarding the proposed treatment levels and that the levels to
which cadmium and selenium may be accurately measured in a TCLP extract. The cadmium and
selenium standards of 0.11 mg/1 and 5.7 mg/1 TCLP are over 1,000 times the detection limits of
available determinative methods employing FLAA, GFAA, or ICPMS.
DCN               PH4P077
COMMENTER      American Foundryman's Soc
RESPONDERP      AC
SUBJECT          CD/CR
SUBJNUM         077                                   .
COMMENT
II. UTS FOR THE TC METAL WASTES OF CHROMIUM,
CADMIUM, LEAD, AND SELENIUM SHOULD BE BASED ON

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STABILIZATION TECHNOLOGIES BECAUSE STABILIZATION
TECHNOLOGIES ARE BOAT FOR FOUNDRY WASTES
A.Because Stabilization is the OnlyCommercially "Available" Technology For Foundry Wastes,
Stabilization Technologies Should Be Used as the Basis For Determining the UTS For Lead,
Cadmium, Selenium, and Chromium

As indicated above, HTMR is not commercially available for treatment of foundry wastes.
However, certain stabilization technologies are commercially available for foundry wastes.
Although the database of stabilization treatment results for foundry wastes presented in the
rulemaking record is not comprehensive, (See Proposed BOAT Background Document fort TC
Metal Wastes D004-D011  (July 26,1995), at A-16 to A-27), only stabilization technologies are
demonstrated to effectively treat foundry wastes. Stabilization technologies are also the only
practical technology for foundry wastes that meet the statutory requirement to" substantially
reduce the likelihood of migration of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment are minimized."RCRA § 3004(m),
42 U.S.C. § 6924(m). Therefore, the results from commercially-available stabilization
technologies applied to foundry wastes should be used to establish the UTS for TC METAL
wastes. However, the Agency should only use reasonable stabilization technologies that do not
require the addition of excessive amounts of stabilizing material in determining treatment
standards for TC metal wastes.

B.Stabilization Technologies For Lead,
Chromium, Cadmium, and Selenium Have Not Been
Demonstrated to Treat Foundry Sands to Meet the Proposed UTS

Commercially available stabilization technologies for foundry wastes have not been
demonstrated to consistently meet the proposed UTS levels. The results presented in Appendix A
to the Proposed BOAT Background Document  for TC Metal Wastes D004-D011, July  26,1995,
indicate that over half of the waste sample sets treated with stabilization technologies would fail
to meet UTS for either cadmium, chromium, lead, or selenium. In particular, eight out often
stabilization sample sets for foundry-related wastes identified in the record would also fail for the
same reason.

C.There is Currently Inadequate Data in the
Rulemaking Record on Commercially Available
Stabilization Technologies to Determine
the Appropriate UTS for Cadmium, Chromium, Lead and Selenium

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 we resubmitted 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

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foundry waste would be more appropriately described as "landfill wastes."  3/ 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. The data in the record is also 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
of K061 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 "[p]ut 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
UCS need to be raised in certain cases to optimize the stabilization treatment technology for
other TC metal wastes. The Agency has previously recognized and accommodated a similar
situation. In the LDR Phase II rule, the Agency raised the treatment standard for chromium
wastes from 0.33 mg/L to 0.86 mg/L on a showing by industry that stabilization technologies for
certain chromium wastes were unable to meet the treatment standard based primarily on
processed K061. 59 Fed. Reg. 47,983, 47,999 (Sept. 19,1994). The data in the record of the
Phase IV proposed rule are not adequate to address the interferences of other metals on the
stabilization technology for cadmium, chromium, LEAD, AND selenium 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
foundry 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 UCS in a waste as well as the

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characteristic metal.
RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology.  The generators can select any appropriate
treatment technology that will treat the waste to the UTS.  EPA recognizes that all waste streams
are not the same and that the  characteristics of the same waste stream can vary over time. The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction  factor - to account for any analytical interferences
associated with the chemical  make-up of the samples; and (2) variability factor - to correct for
normal variations in the performance of a particular technology over time.

       The Agency had inadequate data on foundry sands prior to the second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request. Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.  These stabilization performance data (based on grab samples) represented a wide range
of metal-bearing wastes (both listed and characteristic), including metal manufacturing and
foundry wastes.       The stabilization performance data (based on grab samples) represented a
wide range of metal-bearing wastes (both listed and characteristic) including mineral processing
wastes, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge. These
waste streams contained multiple metals which would be representative of a characteristic waste
with UHCs and significant concentrations of combination metals including: two sets of lead and
cadmium data (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L
TCLP and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L
TCLP and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and
antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data
collection effort, the Agency  believes that it has addressed the issue of effective multiple
contaminant waste stabilization in two ways: (1)  Utilization of treatment data that contains
multiple metals; and (2) the utilization of these  data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however  the Agency can not find any information that
would suggest that multiple waste codes cannot be stabilized to the treatment levels, when
effective and optimized stabilization processes  are used. (The Agency does note an exception for
the metal constituent, Selenium which was discussed in detail in the Second Supplemental
preamble as well as  the response to comments). The Agency also notes that many of the
multiple-contaminant waste streams contained significant lead concentrations in addition to other
metal constituents and still achieved extremely  low treatment levels. See memorandum entitled,
"Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins

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Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas
Waste Treatment Facility," March 10, 1997.

       In the 1991 USEPA document entitled, "Treatment Technology Background Document"
EPA it states that, "... determining whether stabilization will achieve the same level of
performance on an untested waste that it achieved on a previously tested waste and whether
performance levels can be transferred, EPA examines the following waste characteristics: (a) the
concentration of fine particulates, (b) the concentration of oil and grease, (c) the concentration of
organic compounds, (d) the concentration of sulfate and chloride compounds, and (e) the
solubility of the metal compound.  For both cement-based and lime-pozzzolan-based processes,
very fine solid materials (i.e., those that pass through a No. 200 mesh sieve weaken the bonding
between waste particles and the cement or lime/pozzolan binder by the coating particles	Oil
and grease in both cement-based and lime/pozzolan-based systems result in the coating of waste
particles and the weakening of the bond between the particles and the stabilizing agent, thereby
decreasing the resistance of the material to leaching	Organic compounds in the waste interfere
with the stabilization chemical reactions and bond formation, thus inhibiting curing of the
stabilized material. This interference results in a stabilized waste having decreased resistance to
leaching	Sulfate and chloride compounds interfere with the stabilization chemical reactions,
weakening bond strength and prolonging setting and curing time. Sulfate and chloride
compounds may reduce the dimensional stability of the cured matrix, thereby increasing
leachability potential....The metal to be stabilized should be in its least soluble state, or the
stabilized waste may exhibit a potential for increased leachability..."

       While the Agency can not be aware of all "waste" situations, information available to the
Agency does suggests that multiple metals would not be difficult to treat to the promulgated
treatment standards when an appropriate and optimized stabilization "recipe" is employed.
While the size of the particulate may pose a problem, the Agency has information that foundry
sand would have a mesh sieve size ranging from between 70 and 80. (See "Leaded Copper  Alloy
Reactions With Molding Sands and Sand Response to Acid Leaching," in the docket), this size of
sand would not negatively affect the stabilization of a foundry sand.  Based on all this
information, the Agency believes that the performance data used to develop the UTS finalized in
the Second Supplemental rule (62 FR 26041, May 12,1997) adequately characterizes the
diversity  among metal-bearing wastes including wastes containing multiple metals.

       However, the Agency has identified a technical error in the BDAT determination of the
proposed cadmium standard.  In applying the BDAT methodology for calculating the treatment
standard, EPA failed to perform a "Z-score" outlier test. As stated in the EPA document, "Final
Best Demonstrated Available Technology for Quality Assurance Quality Control Procedures and
Methodology." October 23,1991  " ...an outlier in a data set is an observation (or data point) that
is significantly different from the other data. The measure of difference is determined by the
statistical methods know as a Z-score.  Because the outlier test assumes data to be normally
distributed, it is necessary to transform the data by computing the logarithm of each data point
before performing the outlier test.  The Z-score is calculated by dividing the difference  between

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the data point and the average of the data set by the standard deviation.  For data, that is normally
distributed, 95 percent (or two standard deviations) of the measurements will have a Z-score
between -2.0 and 2.0. A data point outside this range is not considered to be representative of the
population from which the data are drawn. EPA uses this statistical method to confirm that
certain data do not represent treatment by a well-operated system. The Agency uses this method
only in cases where data on the design and operation of a treatment system were limited. This
method is a commonly used technique for evaluating data sets."

       The Agency corrected this error and re-calculated the cadmium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP. Although this standard is more  stringent
than the proposed standard, based on the treatment performance data reviewed, the Agency
believes that this new standard is also achievable by treatment technologies such as stabilization
and HTMR. With respect to data submitted in response to the Second Supplemental, two
commenters submitted data on chromium, one commenter submitted data with 152 data points,
all of which were recorded as less than 0.02 mg/L TCLP. The other commenter submitted 106
data points on treated battery slag which ranged from 0.01 to 0.04 mg/L TCLP. EPA's own
stabilization data on cadmium showed a calculated treatment standard of 0.014 mg/L TCLP.
One commenter, ETC did submit a comment which provided treatment standards statistically
derived from ETC data from which a standard of 0.20 mg/L TCLP was calculated.  However, the
Agency was unable to assess the accuracy of the calculation (The commenter did state that there
may be outliers in their data) or view the raw data.
       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

       Regarding the comment on likely interferences in stabilization technologies, e.g., pH and
the presence of low concentrations of organics, EPA notes that a well operated and optimized
treatment system can overcome such interferences and treat the waste to the UTS. For example,
if the presence of organics interfere in the stabilization process, the waste could be pre-treated
(e.g., thermal treatment) to remove the organics prior to stabilization.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data).  The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection limit difficulties.  Therefore, the Agency believes that the UTS
promulgated in today's rule for TC metals represent standards achievable through commercially
available stabilization and HTMR technologies.

       Finally, regarding the comment that eight out often stabilization sample sets for foundry-
related wastes identified in the record would also fail the proposed UTS (See Appendix A to the
Proposed BOAT Background Document for TC Metal Wastes D004-D011, July 26, 1995), the

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Agency would note that the practice of iron addition for the stabilization of lead-containing
wastes, including foundry sands, has been determined by the Agency to be impermissible
dilution and as such a prohibited treatment for achieving the treatment standards, effective with
the promulgation of this rule. As such, any data that was based on this technology was excluded
from consideration in this rule.
DCN               PH4P083
COMMENTER     Steel Manufacturer's Association
RESPONDER       AC
SUBJECT          CADM
SUBJNUM         083
COMMENT
 II. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND LEAD
SHOULD BE BASED ON STABILIZATION TECHNOLOGIES
 BECAUSE STABILIZATION TECHNOLOGIES ARE BOAT FOR MANY TC
 METAL WASTES

A. Because Stabilization is the Only Commercially "Available"
Technology For Many TC Metal Wastes. Stabilization Technologies
Should Be Used as the Basis For Determining the UTS For Lead,
Cadmium, and Chromium

As indicated above, HTMR is not commercially available for
treatment of many TC metal wastes. However, certain stabilization
technologies are commercially available. Stabilization technologies
are also the only practical technology for many TC metal wastes,
meeting the statutory requirement to "substantially reduce the
likelihood of migration of hazardous constituents from the waste so
that short-term and long-term threats to human health and
the environment are minimized." RCRA § 3004(m), 42 U.S.C. §
6924(m). Therefore, results from commercially available
stabilization technologies should be used to establish the UTS for
TC metal wastes.  However, the Agency should only use reasonable
Stabilization technologies that  do not require the addition of
excessive amounts of stabilizing material in determining treatment
standards for TC metal wastes.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate

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treatment technology that will treat the waste to the UTS.  EPA recognizes that all waste streams
are not the same and that the characteristics of the same waste stream can vary over time. The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction factor - to account for any analytical interferences
associated with the chemical make-up of the samples; and (2) variability factor - to correct for
normal variations in the performance of a particular technology over time.

       In addition, in establishing the UTS, the Agency reviewed treatment performance data
from commercially demonstrated and available stabilization and HTMR technologies. The
stabilization performance data (based on grab samples) represented a wide range of metal-
bearing wastes (both listed and characteristic) that the Agency believes represents the most
difficult to treat metal-bearing wastes. These waste streams contained multiple metals which
would be representative of a characteristic waste with UHCs, and significant concentrations of
combination metals including: lead and cadmium, barium and lead, and chromium and antimony.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection  limit difficulties. Thus, as the commenter stated, the Agency
used performance data from commercially available stabilization and HTMR technologies for
determining the UTS for TC metal wastes.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard. In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.

DCN          PH4P083
COMMENTER      Steel Manufacturer's Association
RESPONDER       AC
SUBJECT           CADM
SUBJNUM          083
COMMENT
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

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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 of K061
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 "[p]ut 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

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a significant impact on stabilization technologies and their
ability to treat any UHCs in a waste as well as the characteristic
metal.

RESPONSE

       The Agency agrees with the commenter that the synergistic effects of different
constituents impact the performance of the stabilization process and the performance will largely
depend on the type and concentrations of metals in the waste.  Further, the Agency acknowledges
the concerns raised by the commenter regarding the lack of performance data on stabilization
technologies (specifically data that address multiple metal constituents) and notes that data on
commercial stabilization performance were not received from the commenters in response to the
original Phase IV proposal (60 FR 43654, August 22, 1995), and the first supplemental Phase IV
proposal (61 FR 2338, January 25,1996).

       A few commenters submitted performance data that were based on composite samples.
Since grab samples are required for BDAT determination, the Agency was unable to use this data
for determining the UTS. Therefore, to address concerns on performance data adequacy, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes. The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the most
difficult to treat metal-bearing wastes. These waste streams contained multiple metals which
would be representative of a characteristic waste with UHCs, and significant concentrations of
combination metals including: lead and cadmium, barium and  lead, and chromium and antimony.
Therefore, the Agency believes that the performance data used to develop the UTS adequately
characterizes the diversity in metal-bearing wastes and accounts for interference of other metals
in the stabilization of hazardous wastes.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard. In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency
corrected this error and re-calculated the cadmium and chromium treatment  standard and is
promulgating the UTS for cadmium at 0.11  mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste  on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
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DCN        PH4P086
COMMENTER      American Gas Association
RESPONDER       AC
SUBJECT           CADM
SUBJNUM          086
COMMENT
A.G.A. is very concerned that the proposed treatment standards are
inconsistent with the current philosophy and policy directives from
Congress for EPA to use risk-based standards. The proposed
treatment standards for mercury, chromium, cadmium and lead are
based on levels that one could possibly technically treat to. As
such, they are too low and cannot practicably be reached using
conventional remediation technologies. A.G.A. urges EPA to perform
reasonable risk assessments to determine if ratcheting down on
treatment standards is environmentally necessary. Until EPA does
this, the present standards for these metals and other wastes
should be retained. The significant reductions being proposed have
not been shown to be necessary from a human health or environmental
standpoint.

RESPONSE

       The Agency disagrees with the commenter that the treatment standards are inconsistent
with the current philosophy and policy directives from Congress. Technology-based standard
have been upheld as a permissible means of implementing Section 3004 (m), HWTC III, 886 F.
2d 345 (D.C. Cir. 1990). EPA believes that, in certain cases, further treatment of characteristic
metal wastes below the TC level may be required in order to minimize threats to human health
and the environment from these wastes within the meaning of 3004(m).  As stated previously in
the Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level. This approach likewise
was upheld in the Third Third case (976 F. 2d 2), and in fact, certain standards for chromium and
lead were remanded or not being established below the characteristic level (976 F 2d at 27, 32).

       It also should  be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level. Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment (886 F. 2d at 362-65.)  The Agency finds, for the purpose of
this rule, that none of the treatment standards are established below levels at which pose threats
to human health and the environment.  Unless the Agency determines risk-based concentration

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levels that achieve the minimized threat requirement for a particular waste stream, EPA believes
that BDAT treatment, as reflected in the proposed UTS levels, fulfills the statutory charge of
section 3004(m).

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard. In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test.  The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.
DCN        PH4P090
COMMENTER      International Cadmium Association
RESPONDER       AC
SUBJECT           CADM
SUBJNUM          090
COMMENT
The Cadmium Council, a trade association whose members are
producers of cadmium, urges EPA not to adopt the above rule insofar
as it would apply Universal Treatment Standards for cadmium to
characteristic metal wastes thereby lowering the cadmium treatment
standard from 1.0 to 0.19 mg/1.

EPA is required by Section 3004(m) of the Resource Conservation
and Recovery Act to find that the "levels or methods of treatment"
it specifies will serve to minimize "short-term and long-term
threats to human health and the environment..." In its
discussion of treatment standards for toxic characteristic metal
wastes, the preamble to EPA's proposed  regulation explains that the
Agency is "... proposing to change the treatment standards for
characteristic metal wastes from those established in the Third
Third rule at the characteristic levels to previously promulgated
UTS levels for metal constituents (60 Fed. Reg. 43682). No effort
is made in the preamble to tie these changes to any human health or
environmental risk, and no showing has  been made by EPA that under
the present RCRA requirements cadmium-bearing wastes pose any such
threats. The proposal thus fails to meet requirements of Section
3004(m)and should therefore be withdrawn.

RESPONSE

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      EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

      It also should be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level. Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment. EPA also notes  that the characteristic level is the level at
which wastes clearly are hazardous, certainly not the level at which threats are minimized.  The
Agency finds, for the purpose of this rule, that none of the treatment standards are established
below levels at which pose threats to human health and the environment.  Unless the Agency
determines risk-based concentration levels that achieve the minimized threat requirement and
EPA is unable to so now on a national basis (in spite of all the effort lavished on the HWIR
process), EPA believes that BDAT treatment, as reflected in the proposed UTS levels, fulfills the
statutory charge of section  3004(m). The Agency also would like to note that if a particular
waste possesses unique properties making it more difficult to treat than the waste  on which the
standards are based, the affected party may petition the Agency for a treatability variance as per
40 CFR 268.44 on a case-by-case basis.

DCN              PH4P105
COMMENTER     SMA
RESPONDER       AC
SUBJECT          CADM
SUBJNUM          105
COMMENTII. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND
LEAD SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
STABILIZATION TECHNOLOGIES ARE BDAT FOR MANY TC METAL WASTES A.
Because Stabilization is the Only Commercially "Available"
Technology For Many TC  Metal Waste, Stabilization Technologies
Should Be Used as the Basis For Determining the UTS For Lead,
Cadmium, and Chromium  As indicated above, HTMR is not
commercially available for treatment of many TC metal wastes.
However, certain stabilization technologies are commercially
available. Stabilization technologies are also the only
practical technology for many TC metal wastes, meeting the     .
statutory requirement to "substantially reduce the likelihood of
migration of hazardous constituents from the waste so that
short-term and  long-term threats to human health and the

                                         48

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environment are minimized." RCRA 3004(m), 42 U.S.C. 6924(m).
Therefore, results from commercially available stabilization
technologies should be used to establish the UTS for TC metal
wastes. However, the Agency should only use reasonable
stabilization technologies that do not require the addition of
excessive amounts of stabilizing material in determining
treatment standards for TC metal wastes. 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 BOAT Background Document (Addendum) For An
Nonwastewater Forms of K061 and Alternative BOAT 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. BOAT 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 teachability 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 "[p]ut
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.

                                          49

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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.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes.  For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate
treatment technology that will treat the waste to the UTS. The Agency also agrees with the
commenter that the synergistic effects of different constituents impact the performance of the
stabilization process and the performance will largely depend on the type and concentrations of
metals in the waste. Further, the Agency acknowledges the concerns raised by the commenter
regarding the lack of performance data on stabilization technologies (specifically data that
address multiple metal constituents) and notes that data on commercial stabilization performance
were not received from the commenters in response to the original Phase IV proposal (60 FR
43654, August 22,1995), and the first supplemental Phase IV proposal (61 FR 2338, January 25,
1996). A few commenters submitted performance data that were based on composite samples.
Since grab samples are required for BDAT determination, the Agency was unable to use this data
for determining the UTS. Therefore, to address concerns on performance data adequacy, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.

       The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the most
difficult to treat metal-bearing wastes, due to high total and leachable levels of metalls, pH
variations and the presence of multiple hazardous metal constituents. These waste streams
contained multiple metals which would be representative of a characteristic  waste with UHCs,
and significant concentrations of combination metals including: lead and cadmium,-barium and
lead, and chromium and antimony.

       In addition, the Agency also determined the treatment standards for TC metals based on

                                           50

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performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection limit difficulties. Thus, as the commenter stated, the Agency
used performance data from commercially available stabilization and HTMR technologies for
determining the UTS for TC metal wastes. Therefore, the Agency believes that the performance
data used to develop the UTS adequately characterizes the diversity among metal-bearing wastes
and accounts for interference of other metals in the stabilization of hazardous wastes.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard. In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
                                          51

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DCN        PH4P026
COMMENTER      The TDJ Group
RESPONDER       AC
SUBJECT           CHRM
SUBJNUM          026
COMMENT

2) The Agency is apparently unaware of the availability or the
effectiveness of stabilization practices on multiple contaminant
characteristic hazardous wastes.
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 teachability of lead (due to the
amphoteric nature of lead).

RESPONSE

       The Agency agrees with the commenter that the stabilization chemistry can be different
from one waste to another.  In order to account for such variations in waste characteristics, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterize the diversity of metal
wastes. The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge. These waste
streams contained multiple metals which would be representative of a characteristic waste with
UHCs and significant concentrations of combination metals including: lead and cadmium
(untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP and 338
mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP'and 50.7
mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6% total), and chromium and antimony
(untreated concentrations 1580 mg/L TCLP and  16.1 mg/L TCLP).  Based on this data collection

                                          52

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effort, the Agency believes that it has addressed the issue of effective multiple contaminant
waste stabilization in two ways: (1)  Utilization of treatment data that contains multiple metals;
and (2) the utilization of these data to generate treatment standards.  The Agency agrees with the
commenter that the stabilization "recipe" may need to be adjusted to account for the variability
of the waste contaminants, however the Agency can not find any information that would suggest
that multiple waste codes cannot be stabilized to the treatment levels, when effective stabilization
processes are used. (The Agency does note an exception for the metal constituent, Selenium
which was discussed in detail in the Second Supplemental preamble as well as the response to
comments).  The Agency also notes that many of the multiple-contaminant waste  streams
contained significant lead concentrations in addition to other metal constituents and still achieved
low treatment levels. See memorandum entitled, "Final Revised Calculation of Treatment
Standards Using Data Obtained From Rollins Environmental's Highway 36 Commercial Waste
Treatment Facility and GNB's Frisco, Texas Waste Treatment Facility," March 10,1997. While
the Agency notes that in the past it has 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" (See 55FR 22520,22565 (June 1,1990), the Agency believes
that the standards being finalized today can be met in metal waste streams. See memorandum
entitled, "Development of Metal Standards" which can be found in the Background Document
for Metal Wastes in the RCRA docket for today's rule. Therefore, the Agency believes that the
performance data used to develop the UTS proposed in the Second Supplemental  rule (62 FR
26041, May 12, 1997) adequately characterizes the diversity among metal-bearing wastes
including wastes containing multiple metals.

      However, the Agency has identified a technical error in the BOAT determination of the
proposed chromium standard. In applying the BOAT methodology  for calculating the treatment
standard, EPA failed to perform a "Z-score" outlier test.  The Agency corrected this error and re-
calculated the chromium  treatment standard and is promulgating the UTS for chromium at 0.60
mg/1 TCLP.  Although this standard is more stringent than the proposed standard, based on the
treatment performance data reviewed, the Agency believes that this new standard  is also
achievable by commercial treatment technologies such as stabilization and HTMR.

      The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN        PH4P026
COMMENTER      The TDJ Group
RESPONDER       AC
SUBJECT           CHRM
SUBJNUM          026
COMMENT
                                          53

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4) Stabilization reagents may increase the likelihood of
additional treatment expense.

At the present time, naturally occurring heavy metals and heavy
metals present in recycled materials are producing elevated chrome
levels in cement. The Portland Cement Association reports that
leachable chrome levels in cement may exceed the proposed chrome
standard by as much as 100%. It is  expected that other reagents
may also introduce additional heavy metals into the process,
further increasing the risk and cost  of stabilization

RESPONSE

      For EPA's response on this  issue, see the "Comments and Responses Document for
Issues Related to Mineral Processing Wastes," in the RCRA docket for today's rulemaking.
DCN               PH4P077
COMMENTER      American Foundryman's Soc
RESPONDER       PAC
SUBJECT          CHRM
SUBJNUM         077
COMMENT
II. UTS FOR THE TC METAL WASTES OF CHROMIUM,
CADMIUM, LEAD, AND SELENIUM SHOULD BE BASED ON
STABILIZATION TECHNOLOGIES BECAUSE STABILIZATION
TECHNOLOGIES ARE BOAT FOR FOUNDRY WASTES
A.Because Stabilization is the Only
Commercially "Available" Technology For Foundry
Wastes, Stabilization Technologies Should Be Used
as the Basis For Determining the UTS For Lead,
Cadmium, Selenium, and Chromium
As indicated above, HTMR is not commercially
available for treatment of foundry wastes. However,
certain stabilization technologies are
commercially available for foundry wastes. Although
the database of stabilization treatment results
for foundry wastes presented in the rulemaking
record is not comprehensive, (See Proposed BOAT
Background Document fort TC Metal Wastes D004-D011
(July 26, 1995), at A-16 to A-27), only
stabilization technologies are demonstrated to
effectively treat foundry wastes. Stabilization

                                        54

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technologies are also the only practical technology
for foundry wastes that meet the statutory
requirement to"substantially reduce the likelihood
of migration of hazardous constituents from the
waste so that short-term and long-term threats to
human health and the environment are
minimized."RCRA § 3004(m), 42 U.S.C. § 6924(m).
Therefore, the results from
commercially-available stabilization technologies
applied to foundry wastes should be used to
establish the UTS for TC METAL wastes. However, the
Agency should only use reasonable stabilization
technologies that do not require the addition of
excessive amounts of stabilizing material in
determining treatment  standards for TC metal
wastes.
B.Stabilization Technologies For Lead,
Chromium, Cadmium, and Selenium Have Not Been
Demonstrated to Treat Foundry Sands to Meet
the Proposed UTS
Commercially available stabilization technologies
for foundry wastes have not been demonstrated to
consistently meet the proposed UTS levels. The
results presented in Appendix A to the Proposed
BDAT Background Document for TC Metal Wastes
D004-DO11, July 26,1995, indicate that over half
of the waste sample sets treated with
stabilization technologies would fail to meet UTS
for either cadmium, chromium,  lead, or selenium.
In particular, eight out often stabilization
sample sets for foundry-related wastes identified
in the record would also fail for the same reason.
C.There is Currently Inadequate Data in the
Rulemaking Record on Commercially Available
Stabilization Technologies to Determine
the Appropriate UTS for Cadmium, Chromium, Lead and
Selenium
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 we resubmitted by AFS as comments to the
proposed LDR Phase III rulemaking. However,
                                          55

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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."
3/ 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 UCS 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.
The data in the record is also 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 of
K061 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 teachability for all
                                          56

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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 "[p]ut 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 UCS need
to be raised  in certain cases to optimize the
stabilization treatment technology for other TC
metal wastes. The Agency has previously recognized
and accommodated a similar situation. In the LDR
Phase II rule, the Agency raised the treatment
standard for chromium wastes from 0.33 mg/L to 0.86
mg/L on a showing by industry that stabilization
technologies for certain chromium wastes were
unable to meet the treatment standard based
primarily on processed K061. 59 Fed. Reg. 47,983,
47,999 (Sept. 19,1994).
The data in the record of the Phase IV proposed
rule are not adequate to address the interferences
of other metals on the stabilization technology
for cadmium, chromium, LEAD, AND selenium 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 foundry
wastes, changing the pH to minimize chromium
leachate can increase the solubility of lead.
                                           57

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Therefore, these other characteristics of TC metal
wastes can have a significant impact on stabilization technologies and their ability to
treat any UCS in a waste as well as the characteristic metal.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology.  The generators can select any appropriate
treatment technology that will treat the waste to the UTS.  EPA recognizes that all waste streams
are not the same and that the characteristics of the same waste stream can vary over time. The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction factor - to account for any analytical interferences
associated with the chemical make-up of the  samples; and (2) variability factor - to correct for
normal variations in the performance of a particular technology over time.

       The Agency had inadequate data on foundry sands prior to the second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request. Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.  The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry wastes, baghouse dust, battery slag,  soils, pot solids, recycling  by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and
cadmium (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP
and 338 mg/L TCLP respectively); barium and lead (untreated concentrations  13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L  TCLP and 898 mg/L TCLP (4.6% total) respectively), and
chromium and antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP
respectively). Based on this data collection effort, the Agency believes that it has addressed the
issue of effective multiple contaminant waste stabilization in two ways: (1)  Utilization of
treatment data that contains multiple metals;  and (2) the utilization of these data to generate
treatment standards. The Agency agrees with the commenter that the stabilization "recipe" may
need to be adjusted to account for the variability of the waste contaminants, however the Agency
can not find any information that would suggest that multiple waste codes cannot be stabilized to
the treatment levels, when effective stabilization processes are used. (The Agency does note an
exception for the metal constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments).  The Agency also notes that many
of the multiple-contaminant waste  streams contained significant lead concentrations in addition
to other metal constituents and still achieved low treatment levels. See memorandum entitled,
"Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas

                                          58

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Waste Treatment Facility," March 10, 1997. While the Agency notes that in the past it has 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 teachability for all constituents" (See 55FR
22520,22565 (June 1, 1990), the Agency believes that the standards being finalized today can be
met in metal waste streams. See memorandum entitled, "Development of Metal Standards"
which can be found in the Background Document for Metal Wastes in the RCRA docket for
today's rule.

      In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus, allowing for maximum
process variability and detection limit difficulties. Therefore, the Agency believes that the UTS
promulgated in today's rule for TC metals represent standards achievable through commercially
available stabilization and HTMR technologies.

      Furthermore, the Agency has identified a technical error in the BOAT determination of
the proposed chromium standard. In applying the BOAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.

      The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.]

DCN        PH4P083
COMMENTER     Steel Manufacturer's Assoc.
RESPONDER       AC
SUBJECT          CHRM
SUBJNUM         083
COMMENT
II. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND LEAD
SHOULD BE BASED ON STABILIZATION TECHNOLOGIES
BECAUSE STABILIZATION TECHNOLOGIES ARE BOAT FOR MANY TC
METAL WASTES

A. Because Stabilization is the Only Commercially "Available"
Technology For Many TC Metal Wastes. Stabilization Technologies

                                         59

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Should Be Used as the Basis For Determining the UTS For Lead,
Cadmium, and Chromium
As indicated above, HTMR is not commercially available for
treatment of many TC metal wastes. However, certain stabilization
technologies are commercially available.  Stabilization technologies
are also the only practical technology for many TC metal
wastes, meeting the statutory requirement to "substantially reduce
the likelihood of migration of hazardous constituents from the
waste so that short-term and long-term threats to human health and
the environment are minimized." RCRA § 3004(m), 42 U.S.C. §
6924(m). Therefore, results from commercially available
stabilization technologies should be used to establish the UTS for
TC metal wastes. However, the Agency should only use
reasonable stabilization technologies that do not require the
addition of excessive amounts of stabilizing material in
determining treatment standards for TC metal wastes.
RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology.  The generators can select any appropriate
treatment technology that will treat the waste to the UTS. EPA recognizes that all waste streams
are not the same and that the characteristics of the same waste stream can vary over time. The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction factor - to account for any analytical interferences
associated with the chemical make-up of the samples; and (2) variability factor - to correct for
normal variations in the performance of a particular technology over time.

       The Agency had inadequate data on foundry sands prior to the second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request. Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.  The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry wastes, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and.
cadmium (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP
and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%)resppectively), and

                                          60

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chromium and antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP
respectively.  Based on this data collection effort, the Agency believes that it has addressed the
issue of effective multiple contaminant waste stabilization in two ways: (1)  Utilization of
treatment data that contains multiple metals; and (2) the utilization of these data to generate
treatment standards. The Agency agrees with the commenter that the stabilization "recipe" may
need to be adjusted to account for the variability of the waste contaminants, however the Agency
can not find any information that would suggest that multiple waste codes cannot be stabilized to
the treatment levels, when effective stabilization processes are used.  (The Agency does note an
exception for the metal constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments). The Agency also notes that many
of the multiple-contaminant waste streams contained significant lead concentrations in addition
to other metal constituents and still achieved low treatment levels. See memorandum entitled,
"Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas
Waste Treatment Facility," March 10,1997.  While the Agency notes that in the past it has 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" (See 55FR
22520,22565 (June 1, 1990), the Agency believes that the standards being finalized today can be
met in metal waste streams. See memorandum entitled, "Development of Metal Standards"
which can be found in the Background Document for Metal Wastes in the RCRA docket for
today's rule.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection limit difficulties.  Thus, as the commenter stated, the Agency
used performance data from commercially available stabilization and HTMR technologies for
determining the UTS for TC metal wastes.

       Furthermore, the Agency has identified a technical error in the BOAT determination of
the proposed chromium standard.  In applying the BOAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.
DCN        PH4P083
COMMENTER      Steel Manufacturer's Assoc.
                                          61

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RESPONDER       AC
SUBJECT           CHRM
SUBJNUM          083
COMMENT
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 BOAT
Background Document (Addendum) For All Nonwastewater Forms of K061
and Alternative BOAT 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. BOAT 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 teachability 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 "[p]ut 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

                                          62

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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.

RESPONSE

       The Agency agrees with the commenter that the synergistic effects of different
constituents impact the performance of the stabilization process and the performance will largely
depend on the type and concentrations of metals in the waste. Further, the Agency acknowledges
the concerns raised by the commenter regarding the lack of performance data on stabilization
technologies (specifically data that address multiple metal constituents) and notes that data on
commercial stabilization performance were not received from the commenters in response to the
original Phase  IV proposal (60 FR 43654, August 22, 1995), and the first supplemental Phase IV
proposal (61 FR 2338, January 25, 1996).

       A few commenters submitted performance data that were based on composite samples.
Since grab samples are required for BDAT determination, the Agency was unable to use this data
for determining the UTS. Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized  the diversity of metal
wastes. The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry wastes, baghouse dust, battery slag, soils, pot solids,  recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and
cadmium (untreated concentrations  13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP
and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and
antimony (untreated concentrations  1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data
collection effort, the Agency believes that it has addressed the issue of effective multiple
contaminant waste stabilization in two ways: (1)  Utilization of treatment data that contains
multiple metals; and (2) the utilization of these data to generate treatment standards. The Agency
agrees with the commenter that the stabilization "recipe" may need to be adjusted to account for
the variability of the waste contaminants, however the Agency can not find any information that

                                           63

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would suggest that multiple waste codes cannot be stabilized to the treatment levels, when
effective stabilization processes are used.  (The Agency does note an exception for the metal
constituent, Selenium which was discussed in detail in the Second Supplemental preamble as
well as the response to comments). The Agency also notes that many of the multiple-
contaminant waste streams contained significant lead concentrations in addition to other metal
constituents and still achieved low treatment levels. See memorandum entitled, "Final Revised
Calculation of Treatment Standards Using Data Obtained From Rollins Environmental's
Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas Waste Treatment
Facility," March 10, 1997. While the Agency notes that in the past it has 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 teachability for all constituents" (See 55FR 22520,22565
(June 1,1990), the Agency believes that the standards being finalized today can be met in metal
waste streams. See memorandum entitled, "Development of Metal Standards" which can be
found in the Background Document for Metal Wastes in the RCRA docket for today's rule.

       Furthermore, the Agency has identified a technical error in the BOAT determination of
the proposed chromium standard. In applying  the BOAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test.  The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

DCN        PH4P086
COMMENTER      American Gas Association
RESPONDER       AC
SUBJECT           CHRM
SUBJNUM          086
COMMENT
A.G.A. is very concerned that the proposed treatment standards are
inconsistent with the current philosophy and policy directives from
Congress for EPA to use risk-based standards. The proposed
treatment standards for mercury, chromium, cadmium and lead are
based on levels that one could possibly technically treat to. As
such, they are too low and cannot practicably be reached using
conventional remediation technologies. A.G.A. urges EPA to perform
reasonable risk assessments to determine if ratcheting down on

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treatment standards is environmentally necessary. Until EPA does
this, the present standards for these metals and other wastes
should be retained. The significant reductions being proposed have
not been shown to be necessary from a human health or environmental
standpoint.

RESPONSE

       The Agency disagrees with the commenter that the treatment standards are inconsistent
with the current philosophy and policy directives from Congress. EPA believes that, in certain
cases, further treatment of characteristic metal wastes below the TC level may be required in
order to minimize threats to human health and the environment from these wastes within the
meaning of 3004(m). As stated previously in the Third Third Final Rule, which set treatment
standards for characteristic wastes at the characteristic levels, the Agency believed that the goals
of section 3004(m) may require the application of standards promulgated lower than the
characteristic level.

       It also should be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level. Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment. The Agency finds, for the purpose of this rule, that none of
the treatment standards  are established below levels at which pose threats to human health and
the environment. Unless the Agency determines risk-based concentration levels that achieve the
minimized threat requirement for a particular waste stream, EPA believes that BDAT treatment,
as reflected in the proposed UTS levels, fulfills the statutory charge of section 3004(m).

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed chromium standard. In applying the BDAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test.  The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.
DCN        PH4P086
COMMENTER      American Gas Association
RESPONDER       AC
SUBJECT           CHRM
SUBJNUM          086
                                          65

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COMMENT
A similar situation will exist with the other TC metals. For
example, if a waste contains chromium at a TCLP level of 4.0 mg/1,
it is not a hazardous waste and is not subject to the land
disposal restriction. However, if the soil is contaminated at 5.1
mg/1, it must be treated to a level of 0.86 mg/one. Again, this
situation is difficult to reconcile, relative to risk.

RESPONSE

      The Agency notes that the TC levels that determine whether the waste is hazardous or not
but so not represent levels at which threats to human health and the environment are minimized,
rather only levels at which wastes clearly are hazardous. 55 FR at 222665. not based on the best
demonstrated available technology (BDAT). EPA, under the statutory requirements of the
RCRA Sec. 3004(m), is legally obligated to establish treatment standards using the BDAT and
therefore, has developed technology based UTS.  EPA believes that, in certain cases, further
treatment of characteristic metal wastes below the TC level may be required in order to minimize
threats to human health and the environment from these wastes within the meaning of 3004(m).
As stated previously in the Third Third Final Rule, which set treatment standards for
characteristic wastes at the characteristic levels, the Agency believed that the goals of section
3004(m) may require the application of standards promulgated lower than the characteristic level.
Unless the Agency determines risk-based concentration levels that achieve the minimized threat
requirement for a particular waste stream, EPA believes that BDAT treatment, as reflected in the
proposed UTS levels, fulfills the statutory charge of section 3004(m).
DCN              PH4P104
COMMENTER     SSINA
RESPONDER      AC
SUBJECT          CHRM
SUBJNUM         104
COMMENTII. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND
LEAD
SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
STABILIZATION TECHNOLOGIES ARE BDAT FOR MANY TC METAL WASTES A.
Because Stabilization is the Only Commercially "Available"
Technology For Many TC Metal Wastes, Stabilization Technologies
Should Be Used as the Basis For Determining the UTS For Lead.
Cadmium, and Chromium As indicated above, HTMR is not
commercially available for treatment of many TC metal wastes.
However, certain stabilization technologies are commercially
available. Stabilization technologies are also the only
practical technology for many TC metal wastes,  meeting the

                                        66

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statutory requirement to "substantially reduce the likelihood of
migration of hazardous constituents from the waste so that
short-term and long-term threats to human health and the
environment are minimized." RCRA § 3004(m), 42 U.S.C. § 6924(m).
Therefore, results from commercially available stabilization
technologies should be used to establish the UTS for TC metal
wastes. However, the Agency should only use reasonable
stabilization technologies that do not require the addition of
excessive amounts of stabilizing material in determining
treatment standards for TC metal wastes. 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 of K061 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 teachability 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 "[p]ut
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

                                          67

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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.

RESPONSE

      The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate
treatment technology that will treat the waste to the UTS. The Agency also agrees with the
commenter that the synergistic effects of different constituents impact the performance of the
stabilization process and the performance will largely depend on the type and concentrations of
metals in the waste. Further, the Agency acknowledges the concerns raised by the commenter
regarding the  lack of performance data on stabilization technologies (specifically data that
address multiple metal constituents) and notes that data on commercial stabilization performance
were not received from the commenters in response to the original Phase IV proposal (60 FR
43654, August 22,1995), and the first supplemental Phase IV proposal (61 FR 2338, January 25,
1996). A few commenters submitted performance data that were based on composite samples.
Since grab samples are required for BDAT determination, the Agency was unable to use this data
for determining the UTS. Therefore, to address concerns on performance data adequacy, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.

      The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry wastes, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and
cadmium (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP

                                           68

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and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6% total) respectively), and
chromium and antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP
respectively). Based on this data collection effort, the Agency believes that it has addressed the
issue of effective multiple contaminant waste stabilization in two ways: (1)  Utilization of
treatment data that contains multiple metals; and (2) the utilization of these data to generate
treatment standards. The Agency agrees with the commenter that the stabilization "recipe" may
need to be adjusted to account for the variability of the waste  contaminants, however the Agency
can not find any information that would suggest that multiple waste codes cannot be stabilized to
the treatment levels, when effective stabilization processes are used. (The Agency does note an
exception for the metal constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments). The Agency also notes that many
of the multiple-contaminant waste streams contained significant lead concentrations in addition
to other metal constituents and still achieved low treatment levels. See  memorandum entitled,
"Final Revised Calculation of Treatment Standards Using  Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas
Waste Treatment Facility," March 10, 1997. While the Agency notes that in the past it has 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 teachability for all constituents" (See 55FR
22520,22565  (June 1, 1990), the Agency believes that the  standards being finalized today can be
met in metal waste streams. See memorandum entitled, "Development  of Metal Standards"
which can be  found in the Background Document for Metal Wastes in the RCRA docket for
today's rule.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection limit difficulties. Thus, as the commenter stated, the Agency
used performance data from commercially available stabilization and HTMR technologies for
determining the UTS for TC metal wastes. Therefore, the  Agency believes that the performance
data used to develop the UTS adequately characterizes the diversity among metal-bearing wastes
and accounts for interference of other metals in the stabilization of hazardous wastes.

       Furthermore, the Agency has identified  a technical error in the BOAT determination  of
the proposed chromium standard. In applying the BOAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.
                                          69

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      The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN              PH4P105
COMMENTER     SMA
RESPONDER      AC
SUBJECT          CHRM
SUBJNUM         105
COMMENTII. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND
LEAD
SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
STABILIZATION TECHNOLOGIES ARE BOAT FOR MANY TC METAL WASTES A.
Because Stabilization is the Only Commercially "Available"
Technology For Many TC Metal Waste, Stabilization Technologies
Should Be Used as the Basis For Determining the UTS For Lead,
Cadmium, and Chromium As indicated above, HTMR is not
commercially available for treatment of many TC metal wastes.
However, certain stabilization technologies are commercially
available. Stabilization technologies are also the only
practical technology for many TC metal wastes,  meeting the
statutory  requirement to "substantially reduce the likelihood of
migration of hazardous constituents from the waste so that
short-term and long-term threats to human health and the
environment are minimized." RCRA § 3004(m), 42 U.S.C. § 6924(m).
Therefore, results from commercially available stabilization
technologies should be used to establish the UTS for TC metal
wastes. However, the Agency should only use reasonable
stabilization technologies that do not require the addition of
excessive amounts of stabilizing material in determining
treatment standards for TC metal wastes.  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 BOAT Background Document (Addendum) For An

                                        70

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Nonwastewater Forms of K061 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 "[p]ut
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.

RESPONSE
                                           71

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       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology.  The generators can select any appropriate
treatment technology that will treat the waste to the UTS. The Agency also agrees with the
commenter that the synergistic effects of different constituents impact the performance of the
stabilization process and the performance will largely depend on the type and concentrations of
metals  in the waste.  Further, the Agency acknowledges the concerns raised by the commenter
regarding the lack of performance data on stabilization technologies (specifically data that
address multiple metal constituents) and notes that data on commercial stabilization performance
were not received from the commenters in response to the original Phase IV proposal (60 FR
43654, August 22, 1995), and the first supplemental Phase IV proposal (61 FR 2338, January 25,
1996).  A few commenters submitted performance data that were based on composite samples.
Since grab samples are required for BOAT determination, the Agency was unable to use this data
for determining the UTS.  Therefore, to address concerns on performance data adequacy, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.

       The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry wastes, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and
cadmium (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP
and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L  TCLP (4.6%), and chromium and
antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data
collection effort, the Agency believes that it has addressed the issue of effective multiple
contaminant waste stabilization in two ways: (1)  Utilization of treatment data that contains
multiple metals; and (2) the utilization of these data to generate treatment standards. The Agency
agrees  with the commenter that the stabilization "recipe" may need to be adjusted to account for
the variability of the waste contaminants, however the Agency can not find any information that
would  suggest that multiple waste codes cannot be stabilized to the treatment levels, when
effective stabilization processes are used. (The Agency  does note an exception for the metal
constituent, Selenium which was discussed in detail in the Second Supplemental preamble  as
well as the response to comments). The Agency also notes that many of the multiple-
contaminant waste streams contained significant lead concentrations in addition to other metal
constituents and still achieved low treatment levels. See memorandum entitled, "Final Revised
Calculation of Treatment Standards Using Data Obtained From Rollins Environmental's
Highway 36 Commercial Waste Treatment Facility and  GNB's Frisco, Texas Waste Treatment
Facility," March  10, 1997.  While the Agency notes that in the past it has 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 teachability for all constituents" (See 55FR 22520,22565

                                          72

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(June 1, 1990), the Agency believes that the standards being finalized today can be met in metal
waste streams. See memorandum entitled, "Development of Metal Standards" which can be
found in the Background Document for Metal Wastes in the RCRA docket for today's rule.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus allowing for maximum
process variability and detection limit difficulties. Thus, as the commenter stated, the Agency
used performance data from commercially available stabilization and HTMR technologies for
determining the UTS for TC metal wastes. Therefore, the Agency believes that the performance
data used to develop the UTS adequately characterizes the diversity among metal-bearing wastes
and accounts for interference of other metals in the stabilization of hazardous wastes.

       Furthermore, the Agency has identified a technical error in the BOAT determination of
the proposed chromium standard. In applying the BOAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test.  The Agency corrected this
error and re-calculated the chromium treatment standard and is promulgating the UTS for
chromium at 0.60 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
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DCN        PH4P072
COMMENTER      Non-Ferrous Founder's Soc
RESPONDER       MC
SUBJECT           FOUN
SUBJNUM          072
COMMENT

This letter transmits comments on behalf of the Non-Ferrous Founders Society (NFFS) on the
U.S. Environmental Protection Agency's (EPA's) proposed rule addressing Phase IV of the Land
Disposal Restrictions (LDRIV, 60 Fed. Reg. 43,654, August 22, 1995). NFFS members will
experience a significant financial impact from the proposed regulations unless the final rule
incorporates the modifications recommended in comments filed by both NFFS and the American
Foundrymen's Society (AFS).

NFFS BACKGROUND

The Non-Ferrous Founders' Society is a trade association representing aluminum and brass &
bronze foundries throughout the United States and Canada. Of the more than 3,000 foundries
operating in North America, more than two-thirds produce castings made with non-ferrous
metals.

The majority of non-ferrous foundries are small, privately held businesses, employing on the
average fewer than 50 people. According to the Metalcasting Industry Census Guide compiled by
Penton Publishing, 72% of all non-ferrous foundries fall into that employment category, and
nearly 90% have fewer than 100 employees. Still, it is conservatively estimated that non-ferrous
foundries collectively employ more than 150,000 people.

Non-ferrous foundries are located in nearly every state in the union, and non-ferrous castings are
widely used as components in nearly every manufacturing sector of the economy. Typical
applications include plumbing and fluid handling, construction and machinery, aircraft and
aerospace, industrial, marine, appliance, and automobile production. In addition, they play an
important role in military and defense (ordnance) applications, so much so that the Defense
Department has designated rnetalcasting as a critical technology and both the Energy and
Defense Departments have recently invested in technical research supporting the industry. The
foundry industry as a whole is one of the nation's leading recyclers. The basic feedstock for most
castings is refined ingot, made from material which, in the absence of a viable metalcasting
industry, would otherwise be destined for disposal in landfills. In addition, the overwhelming
majority of foundries employ a sand molding process wherein molten metal is poured into a sand
mold and solidifies into a desired shape. The sand used in this process is typically recycled and
reused by the foundry up to as many as 100 times. Few other industries can boast as high a
recycling rate in their manufacturing processes.

Several major flaws contained in EPA's LDR IV rulemaking have been identified by AFS. The

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following issues are of great importance to NFFS members and simply must be addressed by
EPA before the final LDRIV rule is published by the agency.

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 BDAT for TC wastes. As stated by AFS, the
variability of foundry wastes may make HTMR and inappropriate
treatment technology for this material. Therefore, HTMR is not
appropriate for the majority of Foundry TC Wastes.

RESPONSE

       The Agency thanks the commenter for providing the industry background information.
The Agency agrees with the commenter that HTMR may not be the best technology for all TC
metal wastes. For the same reason, the Agency is establishing a concentration-based standard
rather than requiring a specific technology. The generators can select any appropriate treatment
technology that will treat the waste to the  UTS. EPA recognizes that all waste streams are not
the same and that the characteristics of the same waste stream can vary over time.  The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction factor - to account for any analytical interferences
associated with the chemical make-up of the samples; and (2) variability factor - to correct for
normal variations in the performance of a  particular technology over time.

       The Agency had inadequate data on foundry sands prior to the second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request. Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.  The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
foundry waste, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs and significant concentrations of combination metals including: lead and
cadmium (untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP
and 338 mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP
and 50.7 mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and
antimony (untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data
collection effort, the Agency believes that it has addressed the issue of effective multiple
contaminant waste stabilization in two ways: (1) Utilization of treatment data that contains

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multiple metals; and (2) the utilization of these data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however the Agency can not find any information that
would suggest that multiple waste codes cannot be stabilized to the treatment levels, when
effective and optimized stabilization processes are used.  (The Agency does note an exception for
the metal constituent, Selenium which was discussed in detail in the Second Supplemental
preamble as well as the response to comments). The Agency also notes that many of the
multiple-contaminant waste streams contained significant lead concentrations in addition to other
metal constituents and  still achieved extremely low treatment levels. See memorandum entitled,
"Final Revised Calculation of Treatment Standards Using Data Obtained From Rollins
Environmental's Highway 36 Commercial Waste Treatment Facility and GNB's Frisco, Texas
Waste Treatment Facility," March 10,1997.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus, allowing for maximum
process variability and detection limit difficulties. Therefore, the Agency believes that the UTS
promulgated in today's rule for TC metals represent standards achievable through commercially
available stabilization and HTMR technologies.

       The Agency also would like to note that if a particular waste possesses unique  properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN        PH4P072
COMMENTER      Non-Ferrous Founder's Soc
RESPONDER       MC
SUBJECT           FOUN
SUBJNUM          072
COMMENT

UTS Revision for TC Metals (Non 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

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the LDRIV proposed rulemaking.

More Stabilization Technology Performance Data is Necessary to set the UTS for Cadmium and
Lead: Comments submitted by the AFS demonstrate the need for data on this important aspect of
the LDR IV proposed rule. NFFS firmly believes that UTS levels for TC metals(non-wastewater)
can not be established by EPA until such data is reviewed by the agency. In addition, BOAT is
dependent on HTMR being demonstrated and commercially available.

In summary, we believe that the LDR IV proposed rule is flawed for several reasons. There
appears to be a lack of information necessary to establish UTS levels for TC Metal wastes (non
wastewaters). In addition, EPA has selected a treatment technology (HTMR) that is neither
demonstrated (feasible) nor available for the vast majority of foundry TC metal non-ferrous
foundry waste. The proposed rule does not contain the information needed by EPA to prepare  an
adequate Regulatory Impact Analysis as required by Executive Order 12866. We concur with the
AFS that the proposed LDR Phase IV rulemaking lacks reasoned decision making and results  in
"guesswork" by the Agency. NFFS believes that such "guesswork" will have a grave impact on
our membership. The vast majority of NFFS members are small businesses whose largest
offshore competitor is the Peoples Republic of China; a nation not known for its commitment to
environmental protection. Finally, the costs of the LDR IV proposed rule have not been
appropriately quantified by EPA and the environmental benefit of the proposal seems minimal at
best.

As always, NFFS appreciates the opportunity to comment on EPA rulemaking proceedings. We
trust that the agency will address the mistakes and lack of data highlighted in NFFS and AFS
comments before promulgating the LDR IV final rule.

RESPONSE

       It's noted that the Agency is establishing a concentration-based standard and is not
requiring the use of a specific treatment technology. They Agency has demonstrated that
commercially available technologies can treat wastes that are at least as difficult to treat as the
foundry sands to the UTS, and therefore, has neither violated RCRA requirements nor the intent
of Congress.  The Agency also disagrees with the commenter that none of the commercially
available treatment technologies have been demonstrated to meet the UTS for TC metal wastes.

       The Agency had inadequate data on foundry sands prior to the second supplemental
proposal, and the commenters failed to submit BOAT quality performance data in response to
EPA's request. Therefore, to base the treatment standards on representative samples, the Agency
conducted site visits to commercial hazardous waste treatment facilities and collected additional
stabilization treatment performance data that better characterized the diversity of metal wastes.
The stabilization performance data (based on grab samples) represented a wide range of metal-
bearing wastes (both listed and characteristic) including mineral processing wastes, foundry
waste, baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge. These

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waste streams contained multiple metals which would be representative of a characteristic waste
with UHCs and significant concentrations of combination metals including: lead and cadmium
(untreated concentrations 13mg/L TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP and 338
mg/L TCLP respectively); barium and lead (untreated concentrations 13.5 mg/L TCLP and 50.7
mg/L TCLP and 32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and antimony
(untreated concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data collection
effort, the Agency believes that it has addressed the issue of effective multiple contaminant waste
stabilization in two ways: (1) Utilization of treatment data that contains multiple metals; and (2)
the utilization of these data to generate treatment standards. The Agency acknowledges that the
stabilization "recipe" may need to be adjusted to account for the variability of the waste
contaminants, however the Agency can not find any information that would suggest that multiple
waste codes cannot be stabilized to the treatment levels, when effective and optimized
stabilization processes are used. (The Agency does note an exception for the metal constituent,
Selenium which was discussed in detail in the Second Supplemental preamble as well as the
response to comments). The Agency also notes that many of the multiple-contaminant waste
streams contained significant lead concentrations in addition to other metal constituents and still
achieved extremely low treatment levels. See memorandum entitled, "Final Revised Calculation
of Treatment Standards Using Data Obtained From Rollins Environmental's Highway 36
Commercial Waste Treatment Facility and GNB's Frisco, Texas Waste Treatment Facility,"
March 10,1997.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the proposed UTS, thus, allowing for maximum
process variability and detection limit difficulties. Therefore, the Agency believes that the UTS
promulgated in today's rule for TC metals represent standards achievable through commercially
available stabilization and HTMR technologies.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.

       For EPA's response on the issues related to the RIA, see the "Comments and Response
Document for Mineral Processing Wastes," in the RCRA docket for today's rulemaking.
DCN               PH4P077
COMMENTER      American Foundryman's Soc
RESPONDER       MC
SUBJECT           FOUN
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 SUBJNUM          077
 COMMENT

 On behalf of the American Foundrymen's Society ("AFS"), we are submitting the following
 comments on the U.S. Environmental Protection Agency's ("EPA's" or "the Agency's") proposed
 Land Disposal Restrictions Phase IV Rule ("LDR Phase IV"). See 60 Fed. Reg. 43,654 (Aug. 22,
 1995). AFS members will be adversely affected by EPA's proposed revisions unless the final rule
 incorporates the modifications recommended in these comments.

 AFS is a national trade organization representing over 550 corporate members and approximately
 13,000 individual professional members. Through its corporate and professional membership,
 AFS represents companies responsible for approximately 90 percent of the tonnage poured by
 the U.S. foundry industry. The U.S. foundry industry, our nation's sixth largest industry, is
 comprised of 3100 engineering production units employing 250,000 persons. Approximately
 eighty percent of the U.S. foundry industry are small businesses, having fewer than 100
 employees.

 The foundry industry produces castings for all aspects of daily life. Water faucets, engine blocks,
jet engine turbine blades, fire hydrants, and parts to military equipment are just a few examples
 of products depending on castings. Castings may range in size from a fraction of an ounce
 (magnet in a hearing aid) to well over 400 tons (rolling mill housing). Ferrous and nonferrous
 castings have ultimately found uses, either directly or indirectly, in ninety percent of all
 manufactured items.

 As far back as 1981, AFS has worked cooperatively with the Agency to characterize foundry
 wastes. See, Sampling and Analysis of Wastes Generated by Gray Iron Foundries Agency, EPA
 Office of Solid Waste (April 1981). AFS has also been active  in the development of Land
 Disposal Restrictions ("LDRs") and has worked cooperatively with the Agency in developing
 LDRs applicable to foundry wastes. In both the LDR Third-Third and Phase III rulemaking, AFS
 submitted comments and provided the Agency with foundry waste treatment and stabilization
 information. See List of Previous Correspondence with the Agency on LDRs attached as Exhibit
 1. In fact, some of the data AFS submitted for LDR Phase III is included in the record for LDR
 Phase IV, but apparently this data was either inexplicably ignored or discounted in the proposed
 rulemaking. With these comments, AFS  wishes to draw the Agency's attention to the extensive
body of information on foundry wastes that AFS has provided the Agency. This information
helps illustrate that: (1) High Temperature Metals Recovery ("HTMR") has not been
demonstrated to effectively treat foundry wastes on a commercial basis; (2) HTMR is not
available for most foundry wastes; and (3) the stabilization technologies that are commercially
available have not been demonstrated to  treat the diverse universe of all Toxicity Characteristic
("TC") metal wastes to meet the HTMR-derived treatment standards. Therefore, AFS asks the
Agency to review this information and then establish realistic  and well reasoned treatment
standards for TC metal wastes that will accommodate foundry wastes.
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BACKGROUND ON FOUNDRY WASTES

A.Emission Control Dust

The foundry industry is a significant part of the largest U.S. recycling industry. Each year, AFS
members recycle more than 35 billion pounds of the 77 billion pounds of ferrous metal scrap
recycled by the entire U.S. iron and  steel industry. During normal iron and steel foundry
operations, AFS members operate state-of-the-art air emission control systems and generate
approximately 20 pounds of emission control dust ("EC dust") or sludges for every ton of metal
melted. I/ In other words, recycling the more than 35 billion pounds of ferrous metal scrap
generates approximately 350 million pounds of EC dust, of which about 220 million pounds (or
110,000 tons) are TC metal wastes.  See calculations attached as Exhibit 2.  EC dust may exhibit
the toxicity characteristic for cadmium (D006), chromium (D007), lead (D008) or selenium
(DO 10).

B.Foundry Sand

The foundry sand system is a critical and necessary component of the casting manufacturing
process. Foundry sand is repeatedly recycled to form sand molds for molten metal. The use of
foundry sand in the foundry production cycle is a continuous loop, consisting of a: (1)
mulling/mixing operation; (2) molding operation; (3) pouring/cooling operation; (4) shakeout
operation; and (5) return to the mulling/mixing operation. A thin layer of sand in contact with
molten metal is degraded each time  a casting is made.  The rest of the sand  in a mold provides
physical support  and a heat sink to receive the energy of the molten metal during cooling. At
some point in the production cycle, the degraded portion of the system sand is removed.

The foundry industry uses over 100 million tons of sand each year to make castings. Because
foundry sand is repeatedly recycled, foundries purchase approximately 7 million tons of new
sand each year and dispose of about the same amount. However, of the approximate 7 million
tons of sand disposed each year, only about 300 thousand tons exhibit the toxicity characteristic
for lead (D008). See calculations attached as Exhibit 2.

C. Total Annual Volume of Foundry Wastes

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

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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.

D.Variability in Foundry Wastes

Physically, foundry wastes may vary from fine, dry particulate dust to coarse foundry sand. The
pH of these waste may be acidic, neutral, or basic depending on the melting/molding practices of
the foundry. This variability in waste stream characteristics results from a wide variety of
processes and materials that a foundry must use to produce castings to meet their customers'
quality and metallurgical requirements. For example, a captive brass foundry (one which
produces castings solely for their parent company) may melt only a relatively small number of
alloys, whereas a jobbing brass foundry (one which produces castings on a batch basis for a
multitude of customers) may melt up to 70-80 different alloys. Since each alloy has its own
unique chemistry (e.g., lead may range from 0-25 percent by weight), the characteristics of the
waste generated by a jobbing brass foundry will be more variable than the waste generated by a
captive brass foundry.

The same can be said for captive versus jobbing iron and steel foundries. A captive iron foundry
producing ductile iron castings for the automotive market must melt iron with few  trace elements
(due to the post melting treatment of the molten iron to enhance its ductile properties). These
foundries will melt scrap of known chemistries (e.g., pig iron or in-house scrap) with tight ranges
on contaminant levels. On the other hand, a jobbing iron foundry may melt a wide variety of
scrap with broader ranges of contaminants (e.g., shredded automobile scrap) since customer
demands for chemistry are less stringent.  For example, the chemistry of a fork truck
counterweight casting is much less important than the chemistry of a turbine blade  casting. This
variability in the  quality of the scrap being melted results in unpredictable values of heavy metals
in the wastes. Another variable for all foundries is the wide range of melting temperatures (1300
F - 3000 F) and the effect this has on the type, quantity, and chemical (oxidation) state of the
metals found in the waste sand, dust, and  sludges.

BACKGROUND ON LDR PHASE IV

In the Third-Third LDR rule, EPA established treatment standards for metal wastes that were
characteristically hazardous under the Extraction  Procedure ("EP") test. Since promulgation of
the TC rule in September 1990, the Toxicity  Characteristic Leaching Procedure ("TCLP") is used
to determine whether a metal waste is characteristically hazardous. Wastes that are characteristic
under the TCLP but not under the EP test are considered "newly identified" wastes and are not
currently subject to LDRs. Under LDR Phase IV, all TC metal wastes will be subject to LDRs
and will have to be treated to meet Universal Treatment Standards ("UTS") for the  TC metal and
any underlying hazardous constituents ("UHCs"). LDR Phase IV will impose much more
stringent treatment standards for most TC metal wastes than the current treatment standards

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which are appropriately set at the characteristic level.

The proposed rule will have a specific adverse impact on foundries in the following respects: (1)
all foundry wastes that qualify as TC metal wastes will have to meet much more stringent
treatment standards under UTS for TC metals (e.g., cadmium, chromium, lead, and selenium)
before being land disposed; and (2) foundries will have to determine if their wastes have UHCs
and then treat these wastes to meet the UTS levels for these UHCs, even if such constituents did
not cause the waste to be hazardous.

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  S.Oto
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.2/ 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.

SUMMARY OF COMMENTS

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

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promulgating LDR Phase IV as a final rule. Otherwise, foundries generating TC metal waste
swill 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.

RESPONSE

       First, the Agency thanks the commenter for providing industry background information
and notes that the treatment standards for cadmium, chromium, lead, and selenium have been
revised (based on additional performance data - see the BDAT Background Document for
additional information) to 0.11  mg/1, 0.60 mg/1, 0.75 mg/1, and 5.7 mg/1 respectively.

       Second, the Agency had inadequate data on foundry sands prior to the second
supplemental Phase IV proposed rule, and the commenters failed to submit BDAT quality
performance data in response to EPA's request. Therefore, to base the treatment standards on
representative samples, the Agency conducted site visits to commercial hazardous waste
treatment facilities and collected additional stabilization treatment performance data that better
characterized the diversity of metal wastes.  The stabilization and HTMR performance data
(based on grab samples), collected by the Agency, represented a wide range of metal-bearing
wastes (both listed and characteristic), including metal manufacturing and foundry  wastes. These
waste streams contained multiple metals which would be representative of a characteristic waste
with UHCs, and significant concentrations of combination metals including: lead and cadmium,
barium and lead, and chromium and antimony. EPA believes that these wastes are at least as
difficult to treat as the foundry sands.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data).  The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the UTS, thus, allowing for maximum process
variability and detection limit difficulties. Therefore, the Agency believes that the proposed
standards are achievable through commercially available stabilization and HTMR technologies.

       Finally, the Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.

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HWIR COMMENTS TO THE ORIGINAL PHASE IV PROPOSAL, AUGUST 22,1995

DCN     PH4P019
COMMENTER  ASARCO
RESPONDER  SS
SUBJECT   HWIR
SUBJNUM   017
COMMENT
      In fact, EPA has failed to present any evidence that setting LDR
      treatment standards at UTS levels, rather than at TCLP levels, is
      necessary to reduce risks beyond those presented by the hazardous
      characteristics themselves. In promulgating TCLP levels as
      regulatory thresholds for characteristic wastes in 1990, EPA
      announced its determination that constituent levels below TCLP do
      not pose a substantial present or potential hazard to human health
      and the environment. See 55 Fed. Reg. 11798,  11805 (March 29,
      1990). In doing so, EPA touted the benefits of the characteristic
      approach, and correctly noted that the approach avoids
      "over-inclusiveness" by" reducing the potential of wastes that do
      not, in fact, present a threat." Id. at 11805-06. By uniformly
      setting the LDR treatment standards at UTS, rather than TCLP
      levels, EPA ignores its own prior evaluations regarding the lack of
      any threat posed to human health and the environment, and creates
      the over-inclusiveness that the characteristic approach was
      designed to avoid.

      The lack of any sound scientific or legal basis for the arbitrary
      manner in which EPA imposes the UTS levels as LDR treatment
      standards is exemplified in the proposed treatment standard
      for lead. In this Proposed Rule, EPA proposes to change the
      treatment standard for lead in non-waste water from 5.0 to .37
      milligrams per liter ("mg/1"). In contrast, in section X of
      its August 4,1995 draft preamble to the proposed Hazardous  Waste
      Identification Rule ("HWIR") entitled "Toxicity Characteristic
      Level for Lead," EPA discusses new information that could provide a
      basis for raising the TC level for lead. EPA suggests in the HWIR
      proposal that, based on this new information, the TC level for lead
      could be raised to 11 mg/1, and possibly to as high as 75 mg/1. It
      is clear from this inconsistency that EPA has  failed to consider or
      identify any scientific basis for proposing LDR treatment standards
      for TC metal wastes or any rationalization or  explanation for its
      vastly different approaches.
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       Since EPA has determined that the TCLP levels are sufficiently
       protective of human health and the environment, those regulatory
       thresholds should be utilized in establishing LDRs. In
       utilizing and establishing the TCLP levels, EPA identified the
       regulatory threshold at which the waste is considered
       "non-hazardous." EPA promulgated these levels in fulfillment of
       Congress' mandate to identify as "hazardous" those wastes
       presenting a significant risk to human health and the environment.
       See generally 55 Fed. Reg. 11798. The underlying assumption,
       therefore, is that the TCLP levels are protective of human health
       and the environment.

RESPONSE

       The treatment standards in this rule are not established below levels which pose threats to
human health and the environment.  The characteristic, or TC levels, are the levels at which
constituents are clearly hazardous, not the levels at which threats from the constituents are
minimized. See 55 FR at 22652 (June 1, 1990); 51 FR at 21648 (June 13, 1986); 55 FR 11798
(March 29, 1990). EPA finds, for purposes of this rule, that none of the treatment standards are
established below levels at which threats to human health and the environment are minimized.
This finding stems from the Agency's inability at the present time to establish concentration
levels for hazardous constituents which represent levels at which threats to human health and the
environment are minimized. Unless the Agency determines national-level, risk-based
concentration levels that achieve the "minimized threat" requirement for a particular
wastestream, the Agency believes that BOAT treatment (as reflected by the UTS levels) best
fulfills the statutory charge. Reliance upon BDAT treatment removes, as much as possible, the
inherent uncertainty associated with use of predictive models in ascertaining the effects of land
disposal. 55 FR at 6642 (February 26,1990).

       The commenter referred to the suggestion in the EPA's proposed Hazardous Waste
Identification Rule  (HWIR) that the TC level for lead could be raised to a higher level. The lead
level in HWIR is based on risk modeling that is being modified. The schedule for the HWIR
rulemaking is being extended to allow the Agency time to address the substantive technical
comments on the risk assessment by the Science Advisory Board and others. Due to the court-
order schedule for the Phase IV rule, it was not possible to wait for the HWIR process to be
complete before setting treatment standards on the Phase IV wastes.

DCN     PH4P045
COMMENTER Battery Council International
RESPONDER  SS
SUBJECT  HWIR
SUBJNUM   045
COMMENT

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       Indeed, in direct contradiction to the instant LDR proposal, EPA's
       HWIR proposes risk-based exit levels (from RCRA Subtitle C
       Regulation) for D008 lead constituents which are over 32 times
       greater, and over 2 times greater for selenium, than the limits
       established by EPA in this LDR Phase IV rule. 28  These levels are
       based on risk modeling to a hazard quotient of 1  and 1 x 10-6
       cancer risk, and, according to the proposed HWIR, serve as
       "minimum threat levels" to potentially cap BDAT treatment standards
       for the LDR. BCI believes the Agency's HWIR approach is far more
       well-founded than the one reflected in the instant proposal. 29
       In any event, the Agency cannot simultaneously  rationally pursue
       the approach embodied in this rule and the approach in the HWIR
       proposal. 30 In BCI's view, that rulemaking, rather than this
       one, presents a more appropriate context for any  reevaluation or
       the treatment standards for D008 wastes.

       Moreover, BCI notes that EPA is under no obligation to proceed
       with this issue in the instant rulemaking. The consent decree and
       settlement agreement which required publication of the proposal by
       August 11, 1995, do not address this issue. Rather, they relate to
       such other issues as equivalency determination for surface
       impoundments. 31 Nor does any other court decision require EPA to
       regulate underlying hazardous constituents in toxicity
       characteristic (TC) wastes. To the contrary, the courts have
       recognized that no action may be appropriate. 32

RESPONSE

       The commenter is concerned that the Phase IV treatment standards are in contradiction
with the proposed HWIR risk-based "exit levels." Constituent levels in the proposed HWIR were
based on risk modeling that is being modified. The schedule for the HWIR rulemaking is being
extended to allow the Agency time to address the substantive technical comments on the risk
assessment by the Science Advisory Board and others. Due to the court-order schedule for the
Phase IV rule, it was not possible to wait for the HWIR process to be complete before setting
treatment standards on the Phase IV wastes.

DCN     PH4P059
COMMENTER  Exxon Chemicals Americas
RESPONDER  SS
SUBJECT   HWIR
SUBJNUM   059
COMMENT
       6. EGA recommends that the LDR Phase III and  IV rules be

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progressed only after integrating rule comments, finalizing the
Point of Generation definition, providing regulatory text, and
integrating the Hazardous Waste Identification Rule impacts
and timing.

EPA has stated that the Phase III comments were not reviewed prior
to the time the proposed Phase IV was issued. With the LDR Phase IV
rule expected to address leaks, air emissions, and sludges in
non-hazardous CWA surface impoundments, both LDR Phase III and IV
rules have the potential to significantly affect the operation and
facility requirements of CWA systems. Consequently, the effective
date of the two rules should be the same. Otherwise, the steps
taken by industry to comply with Phase III regulations may turn
out to be inefficient/wasted if Phase IV regulations require
different operating steps or facilities. For example, if a facility
constructs or modifies a surface impoundment-based biological
system to meet the LDR Phase III requirements, Phase IV
requirements could potentially drive the facility to close the
surface impoundment and construct a tank system. To avoid
the unreasonable imposition of regulatory costs, the rulemaking
must be coordinated.

In addition, clarification of the Point of Generation and the
impact of the Hazardous Waste Identification Rule (HWIR) for
process wastes is necessary to determine rule applicability and
requirements. In order for a facility to properly assess the need
to upgrade or replace surface impoundments, the wastewater
discharge, air emission, leaks/groundwater and sludge requirements
need to be clarified. Rolling out regulations sequentially may
lead to facilities implementing projects which change with
succeeding regulations. For example, it is possible that the LDR
standards may drive a facility to invest capital which would not
be necessary under HWIR due to the ability to exit Subtitle C for
low risk wastes.

On the Point of Generation definition, this is a critical issue to
determine the applicability of the proposed LDR rules to a
facility. The absence of a resolution of this issue has made it
extremely difficult for companies to assess the impact of the
rules.

Also, compounding the difficulty in assessing rule impact is the
lack of regulatory language on the Phase IV rule. Experience has

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       indicated that numerous additional issues will be identified when
       EPA writes the detailed regulatory language for the Phase IV
       option selected. In fairness to the regulated community, EPA, after
       selecting a Phase IV option, should prepare the regulatory language
       and seek additional comments.

RESPONSE

       EPA agrees with the commenter in general on the importance of close coordination on the
decision-making and scheduling of the LDR rules, the Hazardous Waste Identification Rule
(HWIR) for process wastes, and regulatory changes to the Definition of Solid Waste.  Since the
comment was submitted to EPA, two events occurred which eliminate the commenter's
particular concerns.  First, the sections of the Phase IV original proposal on August 22, 1995
pertaining to equivalent treatment for decharacterized wastewaters in surface impoundments
(controls of leaks, sludges, and air emissions) were removed from this rule due to the Land
Disposal Flexibility Act of 1996. That Act reinstated the exemption from the dilution
prohibition for these wastes and required EPA to conduct a study to determine if regulation is
necessary.  Second, the timetable on the HWIR rule has been extended well beyond the required
promulgation date of the Phase IV final rule, which removes concern about implementation
problems.  The new treatment standards in the Phase IV final rule will go into effect well before
the complex work on the HWIR rule is complete. The HWIR provisions are being developed in
conjunction with the Land Disposal Restrictions rules.
       Regarding the commenter's last point on regulatory language, the proposed rule on which
this comment was submitted did indeed contain complete regulatory language.

DCN     PH4P078
COMMENTER  Battery Council International
RESPONDER  SS
SUBJECT   HWIR
SUBJNUM  078
COMMENT
       Indeed, in direct contradiction to the instant LDR proposal, EPA's
       HWIR proposes risk-based exit levels (from RCRA Subtitle C
       Regulation) for D008 lead constituents which are over 32 times
       greater, and over 2 times greater for selenium, than the limits
       established by EPA in this LDR Phase IV rule.29  These levels are
       based on risk modeling to a hazard quotient of 1 and Ix 10-6
       cancer risk, and, according to the proposed HWIR, serve as
       "minimum threat levels" to potentially cap BOAT treatment standards
       for the LDR.  BCI believes the Agency's HWIR APPROACH is far more
       well-founded than the one reflected in the instant proposal.30
       In any event,  the Agency cannot simultaneously rationally pursue
       the approach embodied in this rule and the approach in the HWIR

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       proposal. 317 In BCI's view, that rulemaking, rather than this one,
       presents a more appropriate context for any reevaluation or the
       treatment standards for D008 wastes.

       Moreover, BCI notes that EPA is under no obligation to proceed
       with this issue in the instant rulemaking. The consent decree and
       settlement agreement which required publication of the proposal by
       August 11, 1995, do not address this issue. Rather, they relate to
       such other issues as equivalency determination for surface
       impoundments. 327 Nor does any other court decision require EPA to
       regulate underlying hazardous constituents in toxicity
       characteristic (TC) wastes, to the contrary, The courts have
       recognized that no action may be appropriate. 33

RESPONSE

       The commenter is concerned that the Phase IV treatment standards are in contradiction
with the proposed HWIR risk-based "exit levels." Constituent levels in the proposed HWIR were
based on risk modeling that is being modified. The schedule for the HWIR rulemaking is being
extended to allow the Agency time to address the substantive technical comments on the risk
assessment by the Science Advisory Board and others. Due to the court-order schedule for the
Phase IV rule, it was not possible to wait for the HWIR process to be complete before setting
treatment standards on the Phase IV wastes.
DCN     PH4P095
COMMENTER  GE
RESPONDER  SS
SUBJECT   HWIR
SUBJNUM   095
COMMENT
       5.  If the Agency adopts Option 2, the Agency should make the
       applicability trigger levels in Option 2 consistent with the levels
       to be proposed under the HWIR.

       As noted above, the Agency is intending to promulgate
       concentrations of hazardous constituents in waste, below which the
       waste would not be subject to regulation under RCRA. It is GE's
       understanding that these "exit" levels will, for certain hazardous
       constituents, be higher than the exemption levels in the Proposed
       Rule. GE is unaware of any reason why the exemption levels in the
       Proposed Rule should be lower (i.e., more stringent than) than the
       HWIR criteria. Moreover, because the HWIR exit levels are to be

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       risk-based, those levels are more consistent with the intent of
       RCRA ° 3004(m)(l) and the court's decision in Chemical Waste
       Management, both of which confirm that land disposal requirements
       should insure minimization of risks from hazardous constituents.
       Therefore, if the Agency adopts Option 2, it should insure that
       the exemption levels for wastewater and sludges are not lower (i.e.
       more stringent than) the HWIR exit criteria....

7.  The Agency should not revise the TCLP levels for metals until
       the HWIR rule is finalized.

       In the Proposed rule, the Agency has also proposed to lower the
       toxicity characteristic leaching procedure ("TCLP") threshold
       concentrations for certain metals.  These threshold concentrations
       are used to determine if a waste exhibits the characteristic of
       toxicity and, accordingly, is a hazardous waste. As discussed
       above, it is GE's understanding that the Agency will be proposing
       in the near future the HWIR, which will set "exit" concentrations
       of hazardous constituents, below which the waste will not be
       subject to regulation under RCRA. Both the HWIR "exit"
       concentrations and the TCLP levels, therefore, will be relevant in
       determining whether a waste is subject to regulation under RCRA.
       It is imperative, therefore, that the HWIR "exit" criteria and the
       TCLP concentrations are consistent. If the TCLP "entrance"
       concentrations were lower than the HWIR "exit" criteria, the  two
       provisions would be contradictory. Accordingly, the Agency should
       postpone revising the TCLP levels until the HWIR rule is finalized
       to insure that the two are consistent. Alternatively, the TCLP
       levels should reflect the Agency's views under the HWIR rule.

RESPONSE

       The commenter urged EPA to coordinate the Hazardous Waste Identification Rule
provisions with the options in the original Phase IV proposed rule (August 22,1995) concerning
leaks, sludges, and air emissions from surface impoundments, and to make the HWIR exit
criteria consistent with the LDR treatment standards for metal wastes.

       Since the comment was submitted to EPA, two events have occurred which prevent the
coordination problems the commenter foresaw.  First, the sections of the Phase IV original
proposal on August 22, 1995 pertaining to equivalent treatment for decharacterized wastewaters
in surface impoundments (controls of leaks, sludges,  and air emissions) were removed from this
rule due to the Land Disposal Flexibility Act of 1996. That Act reinstated the exemption from
the  dilution prohibition for these wastes and required EPA to conduct a study to determine if

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regulation is necessary. Second, the timetable on the HWIR rule has been extended well beyond
the required promulgation date of the Phase IV final rule, which removes concern about
implementation problems.  The new treatment standards in the Phase IV final rule will go into
effect well before the complex work on the HWIR rule is complete. The HWIR provisions are
being developed in conjunction with the Land Disposal Restrictions rules.
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                     Phase IV LDR Proposed Rule, August 25,1995
           Comments and Responses for Issues Related to UTS for Lead (Vol. 1)
DCN               PH4P026
COMMENTER      The TDJ Group
RESPONDER       EE/MC
SUBJECT          LEAD1
SUBJNUM         026

COMMENT

2) The Agency is apparently unaware of the availability or the
effectiveness of stabilization practices on multiple contaminant
characteristic hazardous wastes.
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 single 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 teachability of lead (due to the
amphoteric nature of lead).

RESPONSE

       The Agency agrees with the commenter that the stabilization chemistry can be different
from one waste to another.  In order to account for such variations in waste characteristics, the
Agency conducted site visits at commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data to better characterize the diversity of metal
wastes. The stabilization performance data (based on grab samples) represented a wide range of

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metal-bearing wastes (both listed and characteristic) including mineral processing wastes,
baghouse dust, battery slag, soils, pot solids, recycling by-products, and sludge. These waste
streams contained multiple metals which would be representative of a characteristic waste with
UHCs and significant concentrations of combination metals including: lead and cadmium,
barium and lead, and chromium and antimony. EPA believes that these wastes represent the
most difficult to treat wastes.  Therefore, the Agency believes that the performance data used to
develop the UTS proposed in the second supplemental rule (62 FR 26041, May 12, 1997) and
being promulgated in today's rulemaking, adequately characterize the diversity among metal-
bearing wastes including wastes containing multiple metals.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN               PH4P038
COMMENTER      Association of Battery Recyclers
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          038

COMMENT

The Association of Battery Recyclers ("ABR") submits the following comments on the proposed
rule; 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 ("Phase IV LDR Rule"), published by the Environmental Protection
Agency ("EPA"), on August 22, 1995. 60 Fed. Reg. 43,654 (1995). In submitting these
comments, the ABR also supports the positions expressed in comments being filed
contemporaneously by the Battery Council International ("BCI"), and the Lead Industries
Association, Inc. ("LIA").

I. Introduction

The ABR is a national trade association whose members include companies in the battery
recycling and manufacturing industries, and the lead chemicals industry.  The battery recycling
industry members of the ABR collectively represent approximately 85%  of the lead recycling
capacity currently available in the United States.  Certain provisions of the proposed Phase IV
LDR Rule, as currently drafted, would have a direct detrimental impact on these ABR member
companies. Specifically, the imposition of the new proposed land disposal restrictions ("LDR")
treatment standards would effectively render ineffectual, the industry's current waste treatment

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systems ~ systems developed and installed fewer than five years ago, at great expense, to ensure
compliance with LDR rules promulgated in 1990.

The proposed Phase IV LDR Rule would apply universal treatment standards ("UTSs")
promulgated by EPA on September 19, 1994, to characteristic metal wastes, including lead (i.e.,
D008 wastes generated by the lead recycling process). The effect of the proposed rule would be
to lower the land disposal restrictions ("LDR") treatment standard for D008 nonwastewaters
from 5.0 milligrams per liter ("mg/1"), to 0.37 mg/1. The corresponding treatment standard for
D008 wastewaters would be changed from 5.0 mg/1 to 0.69 mg/1.

The proposed imposition of these excessively stringent treatment standards virtually on the heels
of the 1990 standards, is patently inequitable and is not adequately supported by relevant data.
Moreover, the escalated waste management costs associated with the proposed action would pose
a potentially insurmountable impediment to the beneficial recycling of secondary lead. Not only
is this an undesirable result from an environmental perspective, it directly contravenes the
recycling goals of the Resource Conservation and Recovery Act ("RCRA") and the
administration's stated objectives in the "Reinventing
Environmental Regulation"  initiative. Specifically, the ABR maintains that: (I) the imposition of
the UTSs to D008 materials is unnecessary to ensure the protection of human and the
environment under RCRA §3004 (m): (ii)the UTSs are unachievable using demonstrated and
available treatment technology; (iii) the proposal to apply the UTSs to D008 materials is not
supported by relevant and material technical data; and (iv) the proposed imposition of
unnecessarily stringent standards is contrary to the administration's announced objectives in the
"Reinventing Environmental Regulation" initiative.

RESPONSE

       The Agency disagrees with the commenter that the UTS contradicts the recycling goals of
RCRA and the objectives of the  Reinventing Environmental Regulation initiative. The Agency
notes that EPA has been subject  to litigation on setting treatment standards. In the case of CMA
vs. EPA regarding the characteristic level for TC pesticides, the Court upheld the Agency's
decision to set technology-based treatment standards below the TC level.  Although the court
held that the statute can be read to allow either technology-based or risk-based standards, it held
that technology-based standards  are permissible as long as they are not established beyond the
point at which there is no threat to human health or the environment.  The Agency finds, for the
purpose of this rule, that none of the treatment standards are established below levels at which
pose threats to human health and the environment. Unless the Agency determines risk-based
concentration levels that achieve the minimized threat requirement for a particular waste stream,
EPA believes that BOAT treatment, as reflected in the proposed UTS levels, fulfills the statutory
charge of section 3 004(m).

       The Agency also disagrees with the commenter that the UTS are unachievable using
existing treatment technology. To compile additional evidence regarding the  treatability of TC

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metal wastes, including D008 wastes, to the UTS, the Agency conducted site visits to
commercial hazardous waste treatment facilities and collected additional stabilization and HTMR
treatment performance data that better represent the diversity of metal wastes than those
previously used.  The treatment performance data (based on grab samples) represented 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,
mineral processing wastes, baghouse dust, soils, pot solids, recycling by-products, and sludge.
These waste streams contained multiple metals which would be representative of a characteristic
waste with UHCs, and significant concentrations of combination metals including: lead and
cadmium, barium and lead, and chromium and antimony. The Agency compared the treatment
standards developed based on stabilization and HTMR and selected the highest (less stringent)
standard for each metal to establish the UTS, thus, allowing for process variability and detection
limit difficulties.

       Thus, the Agency re-proposed a UTS of 0.75 mg/1 TCLP for lead (D008) in the second
supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing these standards in
today's rulemaking. See the BDAT background materials in the RCRA docket for today's rule
for additional information on the treatment performance data used in determining the revised
lead standard.

DCN               PH4P038
COMMENTER      Association of Battery Reyclers
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          038

COMMENT

Approximately 80% of the lead material consumed in the United
States is used in the manufacture of lead-acid batteries. After the
batteries' use, most of this lead is then beneficially recycled.
In the past decade, lead-acid battery recycling rates have
consistently exceeded 90%. The average recycling rate  for the past
five years is 95%.
The recycling of secondary lead using high temperature metals
recovery ("HTMR"), produces refined lead for use in the manufacture
of new lead products. The HTMR process also generates a residual
"slag" material which may contain recoverable amounts of lead.
Slag that contains a sufficient amount of recoverable lead is
reclaimed using the HTMR process, resulting, ultimately, in the
production of additional refined lead material and slag with a
concentration of lead too low to be amenable to further HTMR
processing.

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Under current RCRA LDR regulations, slag wastes generated by the
recycling of secondary lead must meet the treatment standard for
D008 nonwastewaters. 55 Fed. Reg. 22, 568 (1990). The applicable
D008 treatment standard was promulgated by EPA at the
characteristic level (i.e., 5.0mg/l), in the "Third Third" LDR
Rule. 55 Fed. Reg. 22, 520 1. Accordingly, residual slag material
containing unrecoverable amounts of lead that is determined to be
hazardous, is treated by "stabilization," or "fixation" to a level
at or below 5.0 mg/1, and disposed in accordance with applicable
federal and state requirements. (See, discussion of dilution
attenuation factor ("DAF")included in comments submitted by LIA).
The 5.0 mg/1 concentration level is consistently achievable using
currently available stabilization technology. However, the proposed
lower level of 0.37 mg/1 cannot be achieved using
these stabilization systems. Moreover, the UTS treatment standards
for underlying hazardous constituents ("UHCs"), that also would be
applicable under the proposed rule, cannot be achieved using the
stabilization technology developed by the  industry. Technical data
supporting these assertions is attached hereto.
RESPONSE

       The Agency has provided adequate data to show the capability and availability of
commercial treatment technologies (stabilization and HTMR) for treating the TC metals to the
UTS levels. (See the BDAT background document for this rule). 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) represented 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.
These waste streams contained multiple  metals which would be representative of a characteristic
waste with UHCs, and significant concentrations of combination metals including: lead and
cadmium, barium and lead, and chromium and antimony. Thus, the Agency re-proposed a UTS
of 0:75 mg/1 TCLP for lead (D008) in the Second Supplemental proposed rule (62 FR 26045,
May 12, 1997), and is finalizing these standards in today's rulemaking. Therefore, based on the
treatment performance data reviewed, the Agency believes that the lead UTS can readily be
achieved through commercially available treatment technologies.  See the BDAT background
materials in the RCRA docket for today's rule for additional information on the treatment
performance data used in determining the revised lead standard.

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       The Agency would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN               PH4P038
COMMENTER      Association of Battery Recyclers
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          038

COMMENT

EPA also has failed to demonstrate that the UTSs can be met by
stabilization as BDAT. As explained below, EPA has apparently
disregarded D008 stabilization data submitted in connection with
earlier LDR rulemakings that conclusively shows that the UTSs
cannot be met for D008 wastes using demonstrated and available
stabilization technology. Moreover, data included in the docket
indicates that considerable difficulty may be encountered in
achieving the UTSs for stabilized K061. See, DOC PH4P-50284, Table
A-27(Nov. 24, 1994).
Attached to these comments is recently compiled data provided by
facilities in the lead recycling industry, demonstrating that
stabilization of D008 wastes cannot achieve the UTSs. Using
EPA's recommended methodology, the attached analysis of constituent
concentration levels achieved by stabilization shows an average
lead level of 2.97 mg/1, and a level of 2.48 mg/1 for
selenium.  These concentration levels are significantly higher than
the proposed levels of 0.37 mg/1 for lead and 0.16 mg/1 for
selenium.
This data is consistent with data submitted to EPA during the
Third Third rulemaking. The ABR(formerly the Secondary Lead
Smelters Association ("SLSA"), submitted comments and data on the
proposed Third Third Rule demonstrating that lead concentration
levels achieved by stabilization were consistently under the
characteristic level, but still were far removed from the current
0.37 mg/1 UTS. At that time, the Agency performed its own
calculations and concluded that a treatment standard considerably
below the characteristic level would be unachievable
using demonstrated and available technology. EPA stated in the

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preamble to the final rule:
The Agency does not agree ... that these [stabilization] data
support treatment levels significantly below the characteristic
level. The data provided by SLSA clearly show that two treated data
points of 87 were above the characteristic level. The Agency used
the data to calculate a treatment standard of 4.82 mg/1, very close
to the 5.0 mg/1 characteristic level. In addition, the Agency does
not agree . .. that other stabilizing agents may provide a higher
degree of stabilization. .. [T]he data do not support the
assumption that characteristic lead nonwastewaters can typically be
treated to levels significantly less than the EP characteristic
level.
55 Fed. Reg. 22, 566.
As shown by the attached data, the foregoing conclusions remain
valid. In order to comply with the proposed Phase IV LDR Rule, the lead
recycling industry would be forced to abandon the stabilization
treatment technology developed in response to the Third Third Rule,
and develop or acquire some new or enhanced treatment technology
~ assuming that a technology capable of consistently meeting the
UTSs exists and is commercially available.9

RESPONSE

       The Agency disagrees with the commenter's statement that EPA has not demonstrated the
capability of commercial treatment technologies such as stabilization to treat lead to the UTS.
The Agency has provided adequate data to show the capability and availability of commercial
treatment technologies (stabilization and HTMR) for treating lead to the UTS levels. (See the
BDAT background document for this rule). 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) represented 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. These waste streams
contained multiple metals which would be representative of a characteristic waste with UHCs,
and significant concentrations of combination metals including: lead and cadmium, barium and
lead, and chromium and antimony. The Agency believes that these wastes are at least as difficult
to treat as lead containing wastes. It is also noted that, EPA is revising the lead standards based
on these newly collected performance data, and therefore, is not transferring the treatment
standards based on K061  wastes.

       Thus, the Agency re-proposed a UTS of 0.75 mg/1 TCLP for lead (D008) in the second

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supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing these standards in
today's rulemaking.  Therefore, based on the treatment performance data reviewed, the Agency
believes that the lead UTS can readily be achieved through commercially available treatment
technologies.  See the BDAT background materials in the RCRA docket for today's rule for
additional information on the treatment performance data used in determining the revised lead
standard.

      The Agency also reviewed the data submitted by the commenter, and found the data to be
seriously lacking in form and quality assurance/quality control prerequisites. Specifically, the
data submitted to the Agency were: (1) based on composite samples rather than grab samples, the
latter being the only type used to develop BDAT treatment standards; (2) lacking in any quality
assurance/quality control documentation; and (3) not accompanied with adequate indication that
treatment process was in fact well designed and operated. Therefore, the Agency was unable to
use the data for developing the BDAT treatment standards.

      The Agency would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN               PH4P038
COMMENTER      Association of Battery Recyclers
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          038
COMMENT
EPA states in the proposed Phase IV Rule that the Agency has
performed a "comprehensive reevaluation" of treatment performance
data for metals included in the UTS table in order to determine if
the UTS are appropriate for transfer to characteristic metal
wastes. 60 Fed. Reg.43,682 - 43,683. The Agency then concludes,
based upon this comprehensive reevaluation, that the use of HTMR
and stabilization for treatment of D008 materials will achieve the
UTSs. This conclusion is not, however, supported by relevant data.
In the proposed Phase IV Rule, the Agency specifically refers to
the BDAT Background Document for Toxicity Characteristics Metal
Wastes D004-D011 ("BDAT Background Document"), as support for the
imposition of the UTSs. Id. This document does indicate that some
stabilization data was reviewed in preparing the proposed rule.
However, the document also indicates that the proposed expansion of
the UTSs to constituents regulated in nonwastewater forms of D008

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were based, principally, upon treatment performance data from HTMR
for listed hazardous wastes. BDAT Background Document, at 1-6;
Table A-4.

The  majority of the stabilization data reviewed by EPA and
included in the Background Document, is data for the treatment of
KO61.11 As previously noted, however, this data fails
to demonstrate that the UTSs can consistently be met for this
material. Id - at Table A-4. Moreover, the technical data in the
Background Document that is actually relevant to the treatment of
D008 materials, evidences much higher TCLP values, ranging from 0.1
mg/1 to 8.5 mg/1. Id - Based on this data, EPA's conclusion in the
Background Document that the UTS of 0.37 mg/1 can be achieved "for
a wide variety of waste matrices," is both incongruous and grossly
exaggerated.
The  foregoing Background Document references a second EPA document
as containing "a more detailed discussion of the Agency's rationale
and technical support for establishing universal standards for
nonwastewater forms of wastes." BDAT Background Document at 1-7.
However, this report, entitled, Final Best Demonstrated Available
Technology (BDAT) Background Document for Universal Standards,
Volume A: Universal Standards for Nonwastewater Forms of Listed
Hazardous Wastes, does not include an examination of any
stabilization treatment data for D008 wastes. Rather, this document
merely confirms that the UTSs for listed toxicity characteristic
metals were based solely on HTMR, not on stabilization or on HTMR
in combination with stabilization.
Given the foregoing, the ABR questions the validity of EPA's
conclusion in the preamble of the proposed Phase IV Rule, that "the
UTS for metal nonwastewaters can be achieved by [HTMR] or
stabilization." 60 Fed. Reg. 43,683.12  The Agency, clearly, has
not evaluated data sufficient to support the proposed revision of
the D008 treatment standard. In fact, all of the relevant technical
data  regarding the treatment of D008 materials now in EPA's
possession, indicates that a treatment standard of 0.37 mg/1 cannot
be met using demonstrated and available technology.

RESPONSE

       The Agency notes that, to respond to the comments on the adequacy of performance data,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization and HTMR treatment performance data that better represent the diversity
of metal wastes than those previously used. The treatment performance data (based on grab

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samples) represented 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, mineral processing wastes, baghouse dust, soils, pot solids,
recycling by-products, and sludge. These waste streams contained multiple metals which would
be representative of a characteristic waste with UHCs, and significant concentrations of
combination metals including: lead and cadmium, barium and lead, and chromium and antimony.
The Agency compared the treatment standards developed based on stabilization and HTMR and
selected the highest (less stringent) standard for each metal to establish the proposed UTS, thus,
allowing for process variability and detection limit difficulties.

       Thus, EPA revised the lead treatment standard, based on additional data form commercial
stabilization and HTMR facilities (based on grab samples), and proposed the lead UTS at 0.75
mg/1 TCLP in the Phase IV second supplemental proposal (62 FR 26045, May 12,1997), and is
finalizing this standard in today's rulemaking. The Agency also notes that this standard is less
stringent than the standard (0.37 mg/1) proposed in the original Phase IV rule (60 FR 43654,
August 22, 1995). Therefore, based on the treatment performance data reviewed, the Agency
believes that the lead UTS can readily be achieved through commercially available treatment
technologies. See the BDAT background materials in the RCRA docket for today's rule for
additional information on the treatment performance data used in determining the revised lead
standard.
DCN               PH4P043
COMMENTER      Lead Industries Association
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          043

COMMENT

DAF.

To take into account potential migration of lead through
soil, EPA assumed a DAF of 100 for purposes of assigning a toxic
characteristic level to lead. In other words, EPA assumed that lead
released in solution from a landfill would attenuate 100 times
before reaching an underground water body. EPA stated at the time
it adopted the 100 DAF that the number was the product of modeling
based on very limited data, 55 Fed. Reg. 11827 (March 29,1990),
and the evidence that has been gathered since then demonstrates
that lead tends to be immobilized in soil, and that the 100 DAF is
therefore too low. This tendency was noted by EPA in  a report
submitted to the OECD Environment Directorate in May 1991 in

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connection with the OECD lead risk reduction program. The report
notes that lead tends to be immobilized "in organic complexes
or adsorbed to hydrous iron oxides which limits [lead's]
availability to humans and other terrestrial life" (p.49).
In section XII of its August 4, 1995, draft preamble to the
Hazardous Waste Identification Rule(HWIR), EPA discusses new
models that use a higher lead-specific DAF. The draft states
that, as part of the modeling for the HWIR rule, EPA used a lead
specific DAF ranging as high as5000, rather than the generic DAF
of 100 the Agency used in the TC rule. The draft HWIR discusses how
this information could provide a basis for raising the TC level
for lead. Based on this new information, the draft states that the
TC level for lead could be raised to 11 mg/1, and possibly as high
as 75 mg/1. LIA looks forward to working with EPA in a
constructive dialogue to address the range of issues raised by the
use of these updated models.
It should also be noted that the question of lead's mobility in
soil was examined at length by McCulley, Frick & Oilman in a 1991
literature review. The study, which is submitted as Attachment 1 to
these comments, concludes that:
The results of our literature review indicate that, except under
rare conditions, lead that infiltrates into the subsurface is
immobilized and accumulates in the upper layers of soil. This fate
is confirmed both by experimental and empirical data. Lead can be
immobilized in most soils by several mechanisms, including
solubility controls and adsorption into clays, iron and manganese
oxides, and organic matter.  The limited solubility of several lead
compounds sets an upper limit to lead concentrations in soil pore
water, especially at neutral and basic pHs. This solubility control
limits the rate at which lead can be exported downward by
infiltrating soil water [p. 2].
The McCulley, Frick & Oilman study went on to point out that:
... solubility control may be further enhanced by anthropogenic
practices such as the application of fertilizer and lime, which
contain inorganic  compounds that combine with the lead to form
relatively insoluble minerals. At pHs ranging from somewhat
acidic through the neutral and basic ranges, the clays present in
most soils adsorb  lead and result in still lower soil water lead
concentrations. Iron and manganese oxides, where present, extend
the range of adsorption to quite acidic conditions. Solid organic
materials, present especially near the surface of most soils,
adsorb lead at pHs ranging from acidic to somewhat basic. These
precipitation and adsorption reactions compete for dissolved

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lead, resulting in an efficient, scavenging process that has the net
effect of accumulating lead In the upper portion of the soil
profile [p. 31].
The validity of these geophysical analyses is confirmed by a
recently-published study by Markallet al. of heavy metal migration
in soils at smelter sites ranging in age between 220
and approximately 1900 years. The study, which is reproduced in
Attachment 2 to these comments, concludes that: (1) only a very
small fraction of the lead at each site was available for
migration;
(2) the migration rate of the small amount of mobilized lead at
these sites was low; and (3) in no instances was any lead found to
have migrated more than a few meters.

RESPONSE

      The Agency notes the commenter's views on lead mobility and its modeling in
groundwater, and continues to develop models in response to the proposed HWIR.  It would be
premature of the Agency to adopt aspects of the HWIR still in development at this time.
DCN               PH4P045
COMMENTER      BATTERY COUNCIL INTERNATIONAL
RESPONDER       AC
SUBJECT           LEAD1
SUBJNUM          045

COMMENT

The Battery Council International (BCI) is pleased to submit the following comments on the U.S.
Environmental Protection Agency's (EPA) Land Disposal Restrictions ~ Phase IV proposed rule
(LDR Phase IV rule), published in the August 22, 1995, Federal Register.  60 Fed. Reg. 43654.

BACKGROUND

BCI  is a non-profit trade association representing commercial entities involved in the
manufacture, distribution and sale, and reclamation of lead-acid batteries.  BCI is members and
associate members include manufacturers and distributors of lead acid storage batteries for
automotive, marine, industrial, stationary, specialty, consumer and commercial uses, and
secondary smelters that reclaim or recycle the batteries once they are spent. BCFs membership
represents more than 99 percent of the nation's domestic lead-acid battery  manufacturing
capacity and more than 84 percent of the nation's lead battery recycling or secondary smelting
capacity.

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 I.THE .37 mg/1 FOR D008 TREATMENT STANDARD DOES NOT MEET THE BOAT
PRINCIPLES ESTABLISHED BY EPA AND UPHELD IN HAZARDOUS WASTE
TREATMENT COUNCIL v. EPA

A.EPA Has Failed To Follow Its BOAT Principles

A concentration-based treatment standard must be a performance level achievable by application
of the Best Demonstrated Available Technology (BOAT). To identify BOAT for treatment of a
particular waste, EPA considers three factors: whether the technology is "best demonstrated;"
whether it is "available;" and whether it is the "best applicable" technology. A treatment
technology is considered to be  "demonstrated" when full-scale treatment operations are currently
being used to treat that waste.  To be considered "available," the technology must not be
proprietary or a patented process that cannot be purchased or licensed from the proprietor (i.e., it
must be commercially available) and must substantially diminish the toxicity of the waste or
reduce the likelihood of migration of hazardous constituents from the waste.  To be "applicable,"
a technology must theoretically be able to treat the waste.

RESPONSE

      The Agency disagrees with the commenter that the selection of stabilization and HTMR
technologies as BOAT does not meet EPA's BOAT principles. EPA notes that the Horsehead
Resource Development Company's HTMR facility is a commercially operated facility and
accepts TC metals for the purpose of metal recovery.  The Agency also recognizes that certain
wastes (e.g., wastes with unrecoverable amounts of metals) may not be accepted by HTMR
facilities. The Agency notes that the generator is not required to use HTMR to treat the waste.
Any appropriate treatment technology can be used to treat the waste to the UTS. The Agency is
promulgating a concentration-based treatment standard rather than requiring a specific
technology. For example, if HTMR is not available or best suited for D008 waste, then the
generator can treat the waste using stabilization or any other appropriate treatment technology.
The Agency reviewed treatment performance data and calculated treatment standards for both
HTMR and stabilization.The Agency compared the treatment standards developed based on
stabilization and HTMR and selected the highest (less stringent) standard for each metal to
establish the proposed UTS, thus allowing for maximum process variability and detection limit
difficulties.

      Furthermore, based on review of additional treatment performance data, the Agency re-
proposed a UTS of 5.7 mg/1 TCLP for selenium (D010) and a UTS of 0.75 mg/1 TCLP for lead
(D008) in the second supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing
these standards in today's rulemaking.  The Agency believes that the proposed UTS levels are
achievable through commercially available stabilization and HTMR technologies. The Agency
also would like to note that if a particular waste possesses unique properties making it more
difficult to treat than the waste  on which the standards are based, the affected party may petition
the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case basis.

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DCN               PH4P045
COMMENTER      BATTERY COUNCIL INTERNATIONAL
RESPONDER       AC
SUBJECT          LEAD1
SUBJNUM          045
COMMENT

The significance of these directives is apparent when they are contrasted to the policies embodied
in, for example, the Clean Air and Clean Water Acts. Those statutes expressly require
development of standards based on best available technology (BAT) without consideration of
economic factors. 40 Here, Congress said such restrictions should not apply. It thus authorized
the Agency to develop demonstrated technologies that were both technologically and
economically achievable, and consistent with other policies.

This conclusion is fully consistent with the Hazardous Waste Treatment Council decision. There,
the D.C. Circuit specifically recognized that EPA's development of treatment standards under
Section 3004(m) "lies within the informed discretion of the Agency as long as the result is that
short-term and long-term threats to human health and the environment are minimized. 41 That
discretion necessarily extends to evaluation of economic impacts and balancing of other policy
concerns. 42 EPA itself recognizes that "[t]he plain language of the statute [Section 3004(m)]
does not compel the Agency to set treatment standards based exclusively on the capabilities of
existing technology. " 43

Second, EPA already has reached essentially the same conclusion in establishing the treatment
method for lead-acid batteries. EPA has specified a treatment method -- reclamation in a
secondary lead smelter — as that standard.  Much of the D008 nonwastewater materials at issue
here are generated as a result or this required method or treatment. They should not be subject
tofurther treatment standards.

The Agency's only justification for lowering the treatment standard to the UTS level for D008
wastes is that this approach is "consistent with the promulgated requirements for other
characteristic wastes" (D012-D043 ).  However, those other characteristic wastes (i.e., organic
constituents and organic (halogenated) pesticide wastes) are fundamentally different from D008
nonwastewaters (metal wastes). Thus EPA's explanation for lowering the treatment standards
does not meet the D.C. Circuit's requirement that a reasoned analysis support any disregarding of
the Agency's prior policy.

CONCLUSION

BCI would be pleased to provide additional information on our position.

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RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility. Treatment levels also must minimize short- and long-term threats posed by
the waste to human health and the environment. EPA has stated that EP/TC levels are clearly
hazardous, and therefore does not represent minimal threat. Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions,
using BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       Finally, it should be noted that the Agency has been subject to litigation on setting
treatment standards. In the case of CMA vs. EPA regarding the characteristic level for TC
pesticides, the Court upheld the Agency's decision to set technology-based treatment standards
below the TC level.  Though the court held that the statute can be read to allow either
technology-based or risk-based standards, it held that technology-based standards are permissible
as long as they are not established beyond the point at which there  is no threat to human health or
the environment.

       The Agency finds, for the purpose of this rule, that none of the treatment standards are
established below levels that pose threats to human health and the environment. Unless the
Agency determines risk-based concentration levels that achieve the minimized threat requirement
for a particular waste stream, EPA believes that BDAT treatment, as reflected in the proposed
UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045

COMMENT

In lieu of the proposed universal treatment standard (UTS) level,

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BCI believes that the D008 and DO 10 treatment standards should be
maintained at the current levels and measured by the
toxicity characteristic leaching procedure (TCLP), as originally
established in EPA's 1990 Land Disposal Restrictions Rule for Third
Scheduled Wastes, 55 Fed. Reg. 22520 (June 1, 1990).

RESPONSE

       In the supplemental proposed rule (62 FR 26045, May 12, 1997), the Agency amended
the proposal to change the UTS for selenium to 5.7 mg/L TCLP and retain the current treatment
standard of 5.7 mg/L TCLP for DO 10 waste. Thus, creating a uniform standard of 5.7 mg/L for
nonwastewater forms of selenium. In the same supplemental proposed rule, the Agency re-
proposed a lead (D008) nonwastewaters UTS of 0.75 mg/1 TCLP. The Agency believes that
these standards are achievable through commercially available stabilization technologies for a
wide variety of waste matrices (see the BDAT Background Document for additional information
on the revised standards). The Agency also would like to note that if a particular waste possesses
unique properties making it more difficult to treat than the waste on which the standards are
based, the  affected party may petition the Agency for a treatability variance as per 40 CFR
268.44 on  a case-by-case basis.
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045

COMMENT

EPA has failed to follow its own BDAT principles in setting
treatment standards for lead and selenium. Its selection of High
Temperature Metals Recovery (HTMR) and stabilization technologies
as BDAT for D008 nonwastewaters is without merit.
This is because, first, the HTMR technology used by EPA to
determine the BDAT (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 BDAT principles.

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RESPONSE

       The Agency disagrees with the commenter that the selection of stabilization and HTMR
technologies as BDAT is without merit.  EPA notes that the Horsehead Resource Development
Company's HTMR facility is a commercially operated facility and accepts TC metals for the
purpose of metal recovery. The Agency also recognizes that certain wastes (e.g., wastes with
unrecoverable amounts of metals) may not be accepted by HTMR facilities. The Agency notes
that the generator is not required to use HTMR to treat the waste. Any appropriate treatment
technology can be used to treat the waste to the UTS. The Agency is promulgating a
concentration-based treatment standard rather than requiring a specific technology. For example,
if HTMR is not available or best suited for D008 waste, then the generator can treat the waste
using stabilization or any other appropriate treatment technology. The Agency reviewed
treatment performance data and calculated treatment standards for both HTMR and
stabilization.The Agency compared the treatment standards developed based on stabilization and
HTMR and selected the highest (less stringent) standard for each metal to establish the proposed
UTS, thus allowing for maximum process variability and detection limit difficulties.

       Furthermore, based on review of additional treatment performance data, the Agency re-
proposed a UTS of 5.7 mg/1 TCLP for selenium (D010) and a UTS of 0.75 mg/1 TCLP for lead in
(D008) in the second supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing
these standards in today's rulemaking. The Agency believes that the proposed UTS levels are
achievable through commercially available stabilization and HTMR technologies. The Agency
also would like to note that if a particular waste possesses unique properties making it more
difficult to treat than the waste on which the standards are based, the affected party may petition
the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case basis.
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045

COMMENT

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. 7 Instead, this data shows that
based on the 99th percent confidence interval, stabilization
treatment of lead and selenium at secondary lead smelters for slag

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can achieve, at best, concentration levels of 2.97 mg/1 for
lead and 2.48 for selenium. STreatment 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.

RESPONSE

       The Agency disagrees with the commenter's statement that D008 nonwastewaters cannot
be chemically stabilized to the UTS. EPA has provided adequate data to show the capability and
availability of commercial treatment technologies (stabilization and HTMR) for treating lead to
the UTS levels. (See the BDAT background document for this rule). 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) represented 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 Agency believes that these wastes are at least as
difficult to treat as lead containing wastes.

       Thus, the Agency re-proposed a UTS of 0.75 mg/1 TCLP for lead (D008) in the Second
Supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing these standards in
today's rulemaking. Therefore, based on the treatment performance data reviewed, the Agency
believes that the lead UTS can readily be achieved through commercially available treatment
technologies. See the BDAT background materials in the RCRA docket for today's rule for
additional information on the treatment performance data used in determining the revised lead
standard.

       The Agency would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the  waste on which the standards are based, the affected
party may petition the Agency for a treatability  variance as per 40 CFR 268.44 on a case-by-case
basis.
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045
COMMENT

Third, EPA's proposed concentration-based limits for lead do not

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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 .37 mg/1 in some
DOOSnonwastewaters.
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. 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 .37
mg/1 level.

RESPONSE

       High dissolved solids in samples may result in viscosity differences between samples and
standards in determining methods that use aspiration.  However, the use of the method of
standard  additions can be used to eliminate the resulting analytical bias. With regards to
sensitivity, GFAA achieves a MDL of 0.001 mg/L, FIAA 0.10 mg/L, and ICP 0.028 mg/L. EPA
believes each of these methods can achieve reliable measures of the 0.75 mg/L treatment
standard.
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045
COMMENT
Under Section 3004(m) of RCRA, EPA must promulgate treatment
standards for waste subject to the LDRs. These treatment standards
must "substantially diminish the toxicity of the waste
or substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term
threats to the human health and the environment are minimized."
                                          Ill

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ISCourts reviewing EPA's LDR program consistently have recognized
that the Agency cannot set treatment limits below which the wastes
do not pose a threat to human health and the environment. 19
Moreover, to justify any standard, a factual finding, supported by
the record, must be made that the specified treatment level is
needed to eliminate the threat. 20
The proposed adoption of the UTS D008 nonwastewater standard
ignores these principles. There is nothing in the proposed rule or
the supporting record that even suggests that human health and the
environment are not adequately protected by the current treatment
standard (5.0 mg/1) or, conversely, that the proposed treatment
standard of .37 mg/1 is necessary to achieve the required minimal
risk protection. 21 To the contrary, the Agency concedes in the
proposed LDR Phase IV rule that the statutory minimized threat
standard is achieved by the 5.0 mg/1 treatment standard for
characteristic metal mixed wastes through stabilization. 22
This is not surprising. First, there is no basis for the Agency to
conclude that there is any environmental risk from current industry
handling of D008 nonwastewaters (i.e., from recognition of 5.0 mg/1
as the treatment standard). D008 nonwastewater material subject to
land disposal principally are hazardous slags,  contaminated soils,
and air emission control dusts. These wastes already are stabilized
and sent to RCRA regulated, double-lined landfills or other
approved, equivalent facilities.

RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility. Treatment levels also must minimize short- and long-term threats posed by
the waste to human health and the environment. EPA has stated that EP/TC levels are clearly
hazardous, and therefore does not represent minimal threat.  Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions,
using BDAT.

       EPA believes that,  in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.
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       Finally, it should be noted that the Agency has been subject to litigation on setting
treatment standards. In HWTC III, and again in the Third Third case, the Court upheld the
Agency's decision to set technology-based treatment standards below the TC level. Though the
court held that the statute can be read to allow either technology-based or risk-based standards, it
held that technology-based standards are permissible as long as they are not established beyond
the point at which there is no threat to human health or the environment.

       The Agency finds, for the purpose of this rule, that none of the treatment standards are
established below levels that pose threats to human health and the environment. Unless the
Agency determines risk-based concentration levels that achieve the minimized threat requirement
for a particular waste stream, EPA believes that BDAT treatment, as reflected in the proposed
UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT          LEAD1
SUBJNUM          045

COMMENT

The application of the UTS to D008 wastes will put this recycling
process at risk. It will force the
secondary smelter industry to incur substantial costs for, at
best, a negligible effect on human health and the environment. The
additional costs in meeting the treatment standard will impair
the viability of the industry and diminish its ability to recycle
lead batteries. Over the long-run, this could result in a much
greater threat to human health and the environment as the
industry's ability to recycle lead batteries is diminished and they
are disposed in landfills and elsewhere.

RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility. Treatment levels also must minimize short- and long-term threats posed by
the waste to human health and the environment. EPA has stated that EP/TC levels are clearly
hazardous, and therefore does not represent minimal threat. Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions,
using BDAT.

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       EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       Finally, it should be noted that the Agency has been subject to litigation on setting
treatment standards. In HWTC  III, the Court upheld the Agency's decision to set technology-
based treatment standards below the TC level.  Though the court held that the statute can be read
to allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment.

       The Agency finds, for the purpose of this rule, that none of the treatment standards are
established below levels that pose threats to human health and the environment. Unless the
Agency determines risk-based concentration levels that achieve the minimized threat requirement
for a particular waste stream, EPA believes that BDAT treatment, as reflected in the proposed
UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT           LEAD1
SUBJNUM          045

COMMENT

C.EPA Lawfully May Consider Economic and Policy Factors In
Setting LDR Treatment Standards
The legislative history of RCRA Section 3004(m) indicates that
Congress intended the Agency to take into consideration all of the
foregoing factors, including economic impact, when
developing treatment standards.
For example, during consideration of S. 757 (later incorporated
into H.R. 2867, the Hazardous and Solid Waste Amendments of 1984),
Sen. Chaffee offered a floor amendment to Sections 004(b)(7), which
subsequently, became Section 3004(m). The amendment (Amendment
No.3409) was intended to clarify the authority of the
Administrator in establishing treatment  standards applicable to
land disposal practices. In explaining his amendment, Sen. Chafee

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stated that "[t]he requisite levels of methods of treatment
established by the Agency should be the best that has been
demonstrated to be achievable. This does not require a BAT-type
process as under the Clean Air or Clean Water Acts which
contemplates technology-forcing standards. The intent here is to
require utilization of available technology in lieu of continued
and disposal without prior treatment, it is not intended that every
waste receive repetitive or ultimate levels of methods
or treatment, nor must all inorganic constituents be reclaimed."
RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility.  Treatment levels also must minimize short- and long-term threats posed by
the waste to human health and the environment. EPA has stated that EP/TC levels are clearly
hazardous, and therefore does not represent a level at which threats are minimized. Thus in
setting the treatment standards for TC metal wastes at the UTS levels, the Agency is seeking to
achieve substantial reductions in toxicity and mobility for these wastes, not merely incidental or
small reductions, using BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be  required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels,  the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level. Also, EPA sees nothing
in the legislative history cited by the commenter (and, of course, no support in statutory language
or case law) that would allow economic factors to be considered in determining adequacy of
treatment under Section 3004(m).

       Finally, it should be noted that the Agency has been subject to litigation on setting
treatment standards.  In HWTC III, the Court upheld the Agency's decision to set technology-
based treatment standards below the TC level. Though the court held that the statute can be read
to allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment.

       The Agency finds, for the purpose of this rule, that none of the treatment standards are
established below levels that pose threats to human health and the environment. Unless the
Agency determines risk-based concentration levels that achieve the minimized threat requirement
for a particular waste stream, EPA believes that BDAT treatment, as reflected in the proposed

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UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P077
COMMENTER     American Foundryman's Soc
RESPONDER       EE/MC
SUBJECT          LEAD1
SUBJNUM         077

COMMENT

II. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, LEAD, AND
SELENIUM SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
STABILIZATION TECHNOLOGIES ARE BOAT FOR FOUNDRY WASTES
A.Because Stabilization is the Only Commercially "Available"
Technology For Foundry Wastes, Stabilization Technologies Should Be
Used as the Basis For Determining the UTS For Lead, Cadmium,
Selenium, and Chromium
As indicated above, HTMR is not commercially available for
treatment foundry wastes. However, certain stabilization
technologies are commercially available for foundry wastes.
Although the database of stabilization treatment results for
foundry wastes presented in the rulemaking record is not
comprehensive, (See Proposed BOAT Background Document for TC Metal
Wastes D004-D011 (July 26, 1995), at A-16 to A-27), only
stabilization technologies are demonstrated to effectively treat
foundry wastes. Stabilization technologies are also the only
practical technology for foundry wastes that meet the statutory
requirement to "substantially reduce the likelihood of migration of
hazardous constituents from the waste so that short-term and
long-term threats to human health and the environment are
minimized."RCRA § 3004(m), 42 U.S.C. § 6924(m). Therefore, the
results from commercially-available stabilization technologies
applied to foundry wastes should be used to establish the UTS for
TC metal wastes. However, the Agency should only use reasonable
stabilization technologies that do not require the addition of
excessive amounts of stabilizing material in determining treatment
standards for TC metal wastes.
B.Stabilization Technologies For Lead, Chromium, Cadmium, and
Selenium Have Not Been Demonstrated to Treat Foundry Sands to Meet
the proposed UTS
Commercially available stabilization technologies for foundry

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 wastes have not been demonstrated to consistently meet the proposed
 UTS levels. The results presented in Appendix A to the Proposed
 BDAT Background Document for TC Metal Wastes D004-D011, July
 26, 1995, indicate that over half of the waste sample sets treated
 with stabilization technologies would fail to meet UTS for either
 cadmium, chromium, lead, or selenium. In particular, eight out of
 ten stabilization sample sets for foundry-related wastes
 identified in the record would also fail for the same reason.
 C.There is Currently Inadequate Data in the Rulemaking Record
 on Commercially Available  Stabilization Technologies to Determine
 the Appropriate UTS for Cadmium, Chromium, Lead and Selenium
 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." 3/ See Proposed BDAT
 Background Document for TC Metal Wastes D004-D011, July26, 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.
 The data in the record is also 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 of
 K061 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

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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 teachability 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 "[p]ut
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 Agency has previously
recognized and accommodated a similar situation. In the LDR Phase
II rule, the Agency raised the treatment standard for
chromium wastes from 0.33 mg/L to 0.86 mg/L on a showing by
industry that stabilization technologies for certain chromium
wastes were unable to meet the treatment standard based primarily
on processed K061. 59 Fed. Reg. 47,983, 47,999 (Sept. 19, 1994).
The data in the record of the Phase IV proposed rule are not
adequate to address the interferences of other metals on the
stabilization technology for cadmium, chromium, lead, and selenium
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 foundry 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.

On behalf of AFS, we appreciate this opportunity to comment on EPA's proposed rule for Phase
IV of the Land Disposal Restrictions. We expect the Agency to correct the mistakes in the

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rulemaking record that we have addressed in these comments and hope that EPA considers our
recommendations when promulgating the final rule. Until EPA develops the necessary
supporting data on the availability and effectiveness of metal recovery and stabilization
technologies for foundry wastes, the LDR treatment standards for lead, cadmium, chromium and
selenium should remain at the characteristic levels. If we can be of further assistance, please do
not hesitate to contact us.
RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate
treatment technology that will treat the waste to the UTS.  EPA recognizes that all waste streams
are not the same and that the characteristics of the same waste stream can vary over time. The
determination of treatment standards based on the BDAT methodology accounts for such
variability by applying (1) accuracy correction factor - to account for any analytical interferences
associated with the chemical make-up of the samples; and (2) variability factor - to correct for
normal variations in the performance of a particular technology over time.

       The Agency had inadequate data on foundry sands prior to the  second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request.  Therefore, to base the treatment standards on representative samples,
the Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes. These stabilization performance data (based on grab samples) represented a wide range
of metal-bearing wastes (both listed and characteristic), including metal manufacturing and
foundry wastes.  EPA believes that these wastes are at least as difficult to treat as foundry sands.
Regarding the comment on  likely interferences in stabilization technologies, e.g., pH and the
presence of low concentrations of organics, EPA notes that a well operated and optimized
treatment system can overcome such interferences and treat the waste to the UTS.  For example,
if the presence of organics interfere in the stabilization process, the waste could be pre-treated
(e.g., thermal treatment) to remove the organics prior to stabilization.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data).  The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each  metal to establish the proposed UTS, thus, allowing for maximum
process variability and detection limit difficulties.  Thus, based on review of additional treatment
performance data, the Agency re-proposed a UTS of 5.7 mg/1 TCLP for selenium (DO 10) and a
UTS of 0.75 mg/1 TCLP for lead (D008) in the second supplemental proposed rule (62 FR
26045, May 12, 1997), and is finalizing these standards in today's rulemaking. The Agency

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believes that the UTS promulgated in today's rule for TC metals represent standards achievable
through commercially available stabilization and HTMR technologies.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard.  In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test.  The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.

       The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the affected
party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case
basis.
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                     Phase IV LDR Proposed Rule, August 25,1995
          Comments and Responses for Issues Related to UTS for Lead (Vol. 2)
DCN               PH4P026
COMMENTER      The TDJ Group
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          026
COMMENT
       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 D008
       waste streams is limitedly 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 deleading 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

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       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.

RESPONSE

       The Agency agrees with the commenter that wastes containing very low concentrations of
metals would not be amenable for HTMR treatment. Regarding stabilization, some commenters
in response to the original Phase IV proposal, commented on the lack of adequate stabilization
performance data to support the UTS. To address concerns on performance data adequacy, the
Agency conducted site visits to commercial hazardous waste treatment facilities and collected
additional stabilization treatment performance data that better characterized the diversity of metal
wastes.

       The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the most
difficult to treat metal-bearing wastes. These waste streams  contained multiple metals which
would be representative of a characteristic waste with UHCs, and significant concentrations of
combination metals including: lead and cadmium, barium and lead, and chromium and antimony.
The Agency believes that these wastes are at least as difficult to treat as the D008 wastes.  The
Agency also collected data from commercial HTMR facilities and calculated the treatment
standards. The Agency compared the treatment standards developed based on stabilization and
HTMR and selected the highest (less stringent) standard for  each metal to establish the UTS,
thus, allowing for process variability and detection  limit difficulties.

       Thus, the  Agency re-proposed a UTS of 0.75 mg/1 TCLP for lead (D008) in the second
supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing this standard in
today's rulemaking.  See the BDAT background materials in the RCRA docket for today's rule
for additional information on the treatment performance data used in determining the revised
lead standard.  In addition, the Agency conducted a treatment capacity analysis and determined
that adequate capacity exist to treat the D008 wastes.  See the capacity analysis background
document for this rulemaking for additional information on available treatment capacity.
DCN               PH4P026
COMMENTER      The TDJ Group
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          026
COMMENT
       3) The Agency has not considered the effect of iron additions as

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       "pretreatment" for D008 wastes as a method of escaping the proposed
       standard.
       In the proposed regulations, the Agency has remained silent on the
       use of iron or steel filings as a treatment method or as a method
       of evading the proposed standard. As discussed in earlier proposed
       regulation, the Agency has proposed to ban the practice of iron
       addition as impermissible dilution for treatment of D008 wastes.
       In the steel deleading industry, it has been common practice to use
       steel grit or non-metallic grit blended with iron filings for the
       removal of lead paint. The resultant mix will test non-hazardous
       for lead, but oxidation of the iron (a common occurrence in a mixed
       waste facility) can allow the waste to revert to a hazardous
       condition. Under the proposed regulations, this practice would be
       allowed to continue, since the lead contaminated wastes would not
       exceed the 5.0 level for lead. In fact, if stabilization costs
       increase as a result of these regulations, the regulations may
       further encourage this practice. The Agency should consider
       listing waste streams that are high in lead and unoxidized iron
       waste content.

RESPONSE

       In the Land Disposal Restrictions (LDR) Phase III proposed rule (60 FR 11702, March 2,
1995), EPA first raised the issue of whether the addition of iron filings (and iron dust) to lead-
contaminated spent  foundry sand is a means of diluting the waste impermissibly rather than
treating it to conform with the requirements of the LDR rules.  Furthermore, in a notice of
availability (62 FR 10004, March 5, 1997), EPA presented results of new studies and data on the
issue of the treatment adequacy of adding iron to characteristic metal wastes as a method of
treatment. The Agency noted that the addition of iron temporarily retards the teachability of lead
in spent foundry sand, and thus, allows the waste to pass the TCLP test.  The Agency provided
information on two different studies conducted on this issue, one by Dr. John Drexler of the
University of Colorado and the other by Dr. Douglas Kendall of the National Enforcement
Investigation Center (NEIC).  These studies found that even after  treatment (i.e., iron addition),
high concentrations  of lead remained available to the environment and also leached in the units
receiving the spent foundry wastes.  Therefore, these studies concluded that the addition of iron
filings or iron dust to lead-contaminated spent foundry sands did not constitute adequate
treatment of the waste.  See the March 5,1997 NODA (62 FR 10004)  for a full discussion of
these studies. The addition of iron also provides no adequate treatment of cadmium. See the
Regulatory Impact Analysis Document in support of today's rule for a detailed discussion of this
topic.

       Several commenters, in response to the NODA, provided comments supporting and
opposing the results of these studies. See the "Comment Response Document" for this

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rulemaking, for a more complete discussion of the comments received and EPA's response.
After a through review of the data and comments received on this issue, EPA concludes that
addition of iron metal, in the form of fines, filings, or dust fails to provide long-term treatment
for characteristic metal waste, regardless of their origin, and constitutes a form of "impermissible
dilution."

       To codify the determination that the addition of iron to a characteristically hazardous
waste is impermissible dilution the Agency has amended 40 CFR 268.3 to read:

40 CFR 268
§ 268.3 Dilution prohibited as a substitute for treatment
* * *
(d)    It is a form of impermissible dilution, and therefore prohibited, to add iron filings or other
metallic forms of iron to lead-containing hazardous  wastes in order to achieve any land disposal
restriction treatment standard for lead.  Lead-containing wastes include D008 wastes (wastes
exhibiting a characteristic due to the presence of lead), all characteristic wastes containing lead as
an underlying hazardous constituent, listed wastes containing lead as a regulated constituent, and
hazardous media containing any of the aforementioned lead-containing wastes.
* * *
DCN               PH4P043
COMMENTER      Lead Industries Association
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          043
COMMENT
       In comments being filed contemporaneously with LIA's, Battery
       Council International (BCI) and the Association of Battery
       Recyclers (ABR) address a number of reasons why the proposed
       rule should be withdrawn, including the fact that the contemplated
       replacement of the Toxic Characteristic level for lead with a much
       lower Universal Treatment Standard is infeasible and unnecessary to
       protect human health and the environment.

RESPONSE

       EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.
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       It also should be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level.  Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment. The Agency finds, for the purpose of this rule, that none of
the treatment standards are established below levels at which pose threats to human health and
the environment. Unless the Agency determines risk-based concentration levels that achieve the
minimized threat requirement for a particular waste stream, EPA believes that BDAT treatment,
as reflected in the proposed UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P043
COMMENTER      Lead Industries Association
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          043
COMMENT

       In its comments, ABR points out why EPA's earlier determination
       that the present standard adequately minimizes risks is eminently
       correct. If anything, ABR's comments understate this point, for the
       realities are that the present standard is unnecessarily stringent
       because of shortcomings in the Toxic Characteristic Leaching
       Procedure (TCLP) and the fact that the dilution attenuation factor
       (DAF) employed by EPA in developing the present 5 mg/1 level
       greatly exaggerates the potential migration of lead through soil.
       TCLP. There are two reasons why the TCLP is inappropriate for
       lead. First, on the theory that grinding simulates the effects of
       weathering and surface pressures on solid waste in landfills,
       the TCLP testing method requires that test samples be ground before
       the leaching liquid is applied (55Fed. Reg. 11798, March 29,
       1990). EPA acknowledged in the preamble to the final TCLP rule that
       the grinding requirement may not reflect actual conditions, and
       the results of tests performed by the University of Arizona Garbage
       Project (UAGP) in fact indicate that materials below the surface of
       landfills remain remarkably undisturbed. 1
       Second, far more so than is true of other metals, lead is
       extremely sensitive to pH,  and especially to attacks by dilute
       organic acids such as acetic acid. Hence, the combined use of an
       organic acid extraction solution and pH lowering adjustments in the
       TCLP test tend to leach lead from whatever material is being tested
       at an unrealistically high rate.  In that connection, an EPA report

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       has observed that when TCLP is employed "the acetic acid leaching
       fluid could selectively solubilize toxicants (specifically lead)
       and incorrectly classify the soil or waste as hazardous when, in
       fact, no mobilization (leaching) would be expected to occur in the
       environment."2
       1 Rathje, et al., "Source Reduction and Landfill Myths" (July
       1988).2 EPA, "Performance Testing of Method 1312 QA Support for
       RCRA Testing," p. iii (June 1989).

RESPONSE

       EPA believes that, in certain cases, further treatment of characteristic metal wastes below
the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       It also should be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level.  Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment. The Agency finds, for the purpose of this rule, that none of
the treatment standards are established below levels at which pose threats to human health and
the environment. Unless the Agency determines risk-based concentration levels that achieve the
minimized threat requirement for a particular waste stream, EPA believes that BDAT treatment,
as reflected in the proposed UTS levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P056
COMMENTER      Westinghouse
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          056
COMMENT
       3.   For a nonwastewater containing lead to fail the TCLP and be
       subject to UTS at time of disposal, the leachable lead
       concentration must be greater than 5.0 mg/1. Prior to
       land disposal of this nonwastewater, it must be treated to 0.37

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       mg/1 to meet the underlying constituents requirement.  One of the
       purposes of the UTS was to eliminate differences in the
       concentration limits for the same constituent in order to provide
       a better assessment of treatability, to reduce confusion and to
       ease compliance and enforcement. There is a wide margin in the
       concentration limits between the point at which a material becomes
       a hazardous waste and must meet UTS and the UTS concentration limit
       itself. Please clarify that hazardous wastes (i.e. D008) treated
       to a concentration between 0.37 mg/1 and 5.0mg/l would no longer
       be hazardous, but still could not be land disposed in either a
       Subtitle C or D unit. If it were treated below 0.37 mg/1, the
       waste could go to Subtitle D disposal.
RESPONSE

       The Agency notes that the commenter is substantively correct. A D008 characteristic
waste treated to a concentration between 0.75 mg/1 (EPA revised the lead UTS from 0.37 mg/1 to
0.75 mg/1 in today's final rule) and 5.0 mg/1 would no longer be hazardous, but still could not be
land disposed in either a Subtitle C or D unit. If it were treated below 0.75 mg/1, the waste could
be disposed in a Subtitle D unit, provided the waste also meets all other 40 CFR 268.48
Universal Treatment Standards.
DCN               PH4P069
COMMENTER      SSPC
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          069
COMMENT
       There is also concern that EPA may follow up this rule with a
       requirement that 0.37mg/l be designated as the defining level for
       hazardous lead waste. This would result in major increases in costs
       and cause many specifiers, owners and hazardous waste generators
       to reconsider the entire planning and undertaking of the work. This
       could also significantly increase the amount of landfill space used
       by the industry.

       SSPC will be glad to provide additional information regarding the protective
       coating industry's experiences with the treatment and disposal of heavy metal
       wastes.  The protective coatings industry is interested in cooperating with the EPA
       to develop rules that protect the environment but do not cause unnecessary

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       economic burden or affect the ability to protect industrial public and private
       structures from corrosion.

RESPONSE

       First, as stated previously, the Agency has revised the lead UTS from 0.37 mg/1 to 0.75
mg/1 in today's final rule (see the BOAT Background Materials in the RCRA Docket for today's
rulemaking for additional information on the revised UTS). Second, EPA has not proposed
redefining the regulatory levels of the 40 CFR 261.24 Toxicity Characteristic. The Agency notes
that such action may be the subject of a future rulemaking.
DCN               PH4P072
COMMENTER      Non-Ferrous Founder's Soc
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          072
COMMENT
       More Stabilization Technology Performance Data is Necessary to set
       the UTS for Cadmium and Lead: Comments submitted by the AFS
       demonstrate the need for data on this important aspect of the LDR
       IV proposed rule. NFFS firmly believes that UTS levels  for TC
       metals(non-wastewater) can not be established by EPA until such
       data is reviewed by the agency. In addition, BOAT is dependent on
       HTMR being demonstrated and commercially available.

RESPONSE

       The Agency notes that, in response to the concerns raised by the commenter regarding the
lack of stabilization data for TC metal wastes, EPA conducted site visits to commercial
hazardous waste treatment facilities and collected additional stabilization treatment performance
data that better characterized the diversity of metal wastes. The stabilization performance data
(based on grab samples) represented a wide range of metal-bearing wastes (both listed and
characteristic) that the Agency believes represents the most difficult to treat metal-bearing
wastes. Foundry wastes were tested as part of this effort. These waste streams contained
multiple metals which would be representative of a characteristic waste with UHCs, and
significant concentrations of combination metals including: lead and cadmium, barium and lead,
and chromium and antimony.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared the
treatment standards developed based on stabilization and HTMR and selected the highest (less
stringent) standard for each metal to establish the UTS, thus allowing for maximum process

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variability and detection limit difficulties. Since the performance data collected by the Agency
came from commercial treatment facilities, the Agency believes that the UTS can be achieved by
technologies that are demonstrated and commercially available such as stabilization and HTMR.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium standard. In applying the BDAT methodology for calculating the
treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency corrected this
error and re-calculated the cadmium treatment standard and is promulgating the UTS for
cadmium at 0.11 mg/1 TCLP. Although this standard is more stringent than the proposed
standard, based on the treatment performance data reviewed, the Agency believes that this new
standard is also achievable by commercial treatment technologies such as stabilization and
HTMR.  The Agency, in today's rulemaking, is promulgating the lead UTS at 0.75 mg/1 TCLP as
proposed.
DCN               PH4P074
COMMENTER      DOD
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          074
COMMENT
       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.

       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.
RESPONSE

       The Agency is promulgating alternative treatment standards for TC metal contaminated
soils in today's rulemaking.  EPA recognizes the unique issues associated with remediation
waste, including hazardous soil contaminated with TC metals, and therefore, believes that it is
appropriate to establish alternative, less-stringent LDR treatment standards for hazardous soil.

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Thus, in the final Phase IV rule, the Agency is promulgating 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 (see the capacity analysis background
document for additional information) 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. In addition, the Agency also notes that TC
metal contaminated debris is subject to the treatment standards at 40 CFR 268.45.
DCN               PH4P078
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          078
COMMENT
       Under Section 3004(m) of RCRA, EPA must promulgate treatment
       standards for waste subject to the LDRs. These treatment standards
       must "substantially diminish the toxicity of the waste or
       substantially reduce the likelihood of migration of hazardous
       constituents from the waste so that short-term and long-term
       threats to the human health and the environment are minimized. "197
       Courts reviewing EPA's LDR program consistently have recognized
       that the Agency cannot set treatment limits below which the wastes
       do not pose a threat to human health and the environment.20/
       Moreover, to justify any standard, a factual finding, supported by
       the record, must be made that the specified treatment level is
       needed to eliminate the threat.21/
       The proposed adoption of the UTS D008 nonwastewater standard
       ignores these principles. There is nothing in the proposed rule or
       the supporting record that even suggests that human health and the
       environment are not adequately protected by the current treatment
       standard (5.0mg/l) or, conversely, that the proposed treatment
       standard of .37 mg/1 is necessary to achieve the required minimal
       risk protection. 227 To the contrary, the Agency concedes in the
       proposed LDR Phase IV rule that the statutory minimized threat
       standard is achieved by the 5.0 mg/treatment standard for
       characteristic metal mixed wastes through stabilization. 237
       This is not surprising. First, there is no basis for the Agency to
       conclude that there is any environmental risk from current industry
       handling of D008 nonwastewaters (i.e., from recognition of 5.0 mg/1

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       as the treatment standard). D008 nonwastewater material subject
       to land disposal principally are hazardous slags, contaminated
       soils, and air emission control dusts. These wastes already are
       stabilized and sent to RCRA regulated, double-lined landfills or
       other approved, equivalent facilities.
       Second, EPA already has reached essentially the same conclusion in
       establishing the treatment method for lead-acid batteries. EPA has
       specified a treatment method -- reclamation in a secondary lead
       smelter -- as that standard. 247 Much of the D008 nonwastewater
       materials at issue here  are generated as a result or this required
       method or treatment. They should not be subject to further
       treatment standards. 257
       The Agency's only justification for lowering the treatment
       standard to the UTS level for D008 wastes is that this approach is
       "consistent with the promulgated requirements for
       other characteristic wastes" (D012-D043 ).26/ However, those other
       characteristic wastes (i.e.,organic constituents and organic
       (halogenated) pesticide wastes) are fundamentally different from
       D008 nonwastewaters  (metal wastes).27/ Thus EPA's explanation for
       lowering the treatment standards does not meet the D.C. Circuit's
       requirement that a reasoned analysis support any disregarding of
       the Agency's prior policy. 287

RESPONSE

       The Agency disagrees with the commenter that the D008 nonwastewater UTS
ignores the principles of the LDR program under RCRA. EPA believes that, in certain cases,
further treatment of characteristic metal wastes below the TC level may be required in order to
minimize the threats to human health and the environment from these wastes within the meaning
of 3004(m).  As stated previously in the Third Third Final Rule, which set treatment standards
for characteristic wastes at the characteristic levels, the Agency believed that the goals (and
requirements) of section 3004(m) may require the application of standards promulgated lower
than the characteristic level.

       It also should be noted that the Agency has been subject to litigation on setting treatment
standards. In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the  TC level.  Though the court held that the statute can be read to
allow either  technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the environment. The Agency finds, for the purpose of this rule, that none of
the treatment standards are established below levels at which pose threats to human health and
the environment. Unless the Agency determines risk-based concentration levels that achieve the
minimized threat requirement for a particular waste stream, EPA believes that BDAT treatment,

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as reflected in the UTS levels, fulfills the statutory charge of section 3004(m).

       The Agency also notes that, after the publication of the May 10, 1996 NODA (61 FR
21419) on the battery slags from secondary smelters, EPA realized that lead slags resulting from
the smelting of lead acid batteries were identified as a separate treatability group in the Third
Third Rulemaking, and would indeed require further treatment if the slags exceeded the TC for
lead (5.0 mg/1) as generated.  EPA clarified this issue with the representatives of the Battery
Council International, both in person and in a letter dated July 31, 1996.  Therefore, lead slag
residuals that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0 mg/1) after
RLEAD is employed, would have to be treated again for lead and any other underlying
hazardous constituents present in the slag residual. See the BDAT background materials in the
RCRA docket for today's rule for additional information on the treatment performance data used
in determining the revised lead standard.
DCN               PH4P078
COMMENTER      Battery Council International
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          078
COMMENT
       Requiring Secondary Lead Smelters To Meet The Universal Treatment
       Standards Could Impair The Viability Of Lead Battery Recycling
       The proposed UTS would require D008 nonwastewater materials to be
       further treated to the extremely low levels of .37 mg/1 for lead
       and .15 mg/1 for selenium. EPA asserts that the use of HTMR,
       specifically the use of Horsehead Resource Development Company,
       Inc.'s waelz kiln, to process K061 (electric arc furnace dust), and
       conventional stabilization technologies, will achieve the UTS for
       all hazardous constituents in characteristic metal wastes.
       However, As discussed in Section I above, HTMR is unavailable and
       EPA's data on treatment levels achieved in treating K061 wastes are
       not representative of the treatment levels capable of
       being achieved on D008 nonwastewater wastes. Secondary smelters
       simply would be unable to achieve the treatment levels for lead and
       selenium proposed by EPA.
       Even if such technologies were available, the secondary smelter
       industry would either have to spend millions of dollars to
       acquire/develop them (since the industry is using
       other stabilization technologies to comply with the current LDR
       regulations) at an estimated cost of$29 million per facility, or
       send its D008 wastes to facilities operated by others to be

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treated. As the amount of newly identified D008 nonwastewaters
requiring treatment or stabilization could approach 21,000,000
tons, this would be prohibitively expensive.
The secondary smelter, industry has seen the number of operating
secondary smelters decline precipitously over the last several
years, as increasingly stringent and expensive regulatory standards
have been imposed under RCRA and other environmental statutes. 34
It would be unfair to impose additional costs upon remaining
smelters, to achieve little or no benefit. Some likely could not
absorb it, and would close. 35 At the very least, this
expense would also further exacerbate the disparity of costs faced
by procedures of secondary(recycled) lead, rather than virgin lead
slag, sludges, etc. from primary lead producers are generally not
subject to regulation, RCRA Subtitle C).36 This is completely
antithetical to sound public policy.
Furthermore, given that the industry is now operating at full
capacity, any decrease  in secondary smelter capacity may have a
detrimental effect on lead battery recycling. Over 100 million lead
batteries were produced in 1994. As EPA is well aware, secondary
smelters play an integral role in the recycling of lead acid
batteries. In 1994, the most recent year data are available, over
98 percent of the lead available from lead acid batteries was
recycled.
This high recycling rate is a direct result of the lead battery
industry's efforts to promote battery recycling through product
stewardship and legislation, and the ready, convenient
and economical availability of reclamation capacity. Forty-two
states have adopted legislation that cans the disposal and
incineration or lead batteries, requires a deposit in lieu of
trade on the sale or a new replacement lead battery unaccompanied
by the return  of a used  battery, and/or mandates their return for
recycling through a reverse distribution system. These states
account for over 85 percent of the population of the United States.
BCI has strongly supported these initiatives. Under this system
batteries move from consumers to retailers — up through
the distribution chain ~ to manufacturers and ultimately to
secondary smelters where they are recycled.
The application of the UTS to D008 wastes will put this recycling
process at risk. It will force the secondary smelter industry to
incur substantial costs for, at best, a negligible effect on human
health and the environment. The additional costs in meeting the
treatment standard will impair the viability of the industry and
diminish its ability to recycle lead batteries. Over the long-run,

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       this could result in a much greater threat to human health and the
       environment as the industry's ability to recycle lead batteries is
       diminished and they are disposed in landfills and elsewhere.

RESPONSE

       The Agency notes that the Horsehead Resource Development Company's HTMR facility
is a commercially operated facility and accepts TC metals for the purpose of metal recovery. The
Agency also recognizes that certain wastes (e.g., wastes with unrecoverable amounts of metals)
may not be accepted by HTMR facilities.  The Agency notes that the generator is not required to
use HTMR to treat the waste. Any appropriate treatment technology can be used to treat the
waste to the UTS. The Agency is promulgating a concentration-based treatment standard rather
than requiring a specific technology. For example, if HTMR is not available or best suited for
D008 waste, then the generator can treat the waste using stabilization or any other appropriate
treatment technology. The Agency reviewed treatment performance data and calculated
treatment standards for both HTMR and stabilization.  The Agency compared the treatment
standards developed based on stabilization and HTMR and selected the highest (less stringent)
standard for each metal to establish the proposed UTS, thus allowing for maximum process
variability and detection limit difficulties.

       Furthermore, based on review of additional treatment performance data, the Agency re-
proposed a UTS of 5.7 mg/1 TCLP for selenium (D010) and a UTS of 0.75 mg/1 TCLP for lead
(D008) in the second supplemental proposed rule (62 FR 26045, May 12, 1997), and is finalizing
these standards in today's rulemaking.  The Agency  believes that the proposed UTS levels are
achievable through commercially available stabilization and HTMR technologies. The Agency
also would like to note that if a particular waste possesses unique properties making it more
difficult to treat than the waste on which the standards are based, the affected  party may petition
the Agency for a treatability variance as per 40 CFR 268.44 on a case-by-case basis.
DCN               PH4P086
COMMENTER      American Gas Association
RESPONDER       EE/MC
SUBJECT    LEAD2
SUBJNUM          086
COMMENT
       A.G.A. is very concerned that the proposed treatment standards are
       inconsistent with the current philosophy and policy directives from
       Congress for EPA to use risk-based standards. The proposed
       treatment standards for mercury, chromium, cadmium and lead are
       based on levels that one could possibly technically treat to. As
       such, they are  too low and cannot practicably be reached using
       conventional remediation technologies. A.G.A. urges EPA to perform

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       reasonable risk assessments to determine if ratcheting down on
       treatment standards is environmentally necessary. Until EPA does
       this, the present standards for these metals and other wastes
       should be retained. The significant reductions being proposed have
       not been shown to be necessary from a human health or environmental
       standpoint.

RESPONSE

       The Agency disagrees with the commenter that the treatment standards are inconsistent
with the current philosophy and policy directives from Congress. EPA believes that, in certain
cases, further treatment of characteristic metal wastes below the TC level may be required in
order to minimize threats to human health and the environment from these wastes within the
meaning of 3004(m). As stated previously in the Third Third Final Rule, which set treatment
standards for characteristic wastes at the characteristic levels, the Agency believed that the goals
of section 3004(m) may require the application of standards promulgated lower than the
characteristic level.

       It also should be noted that the Agency has been subject to litigation on setting treatment
standards.  In HWTC III, the Court upheld the Agency's decision to set technology-based
treatment standards below the TC level. Though the court held that the statute can be read to
allow either technology-based or risk-based standards, it held that technology-based standards
are permissible as long as they are not established beyond the point at which there is no threat to
human health or the .environment.  The Agency finds, for the purpose of this rule, that none of
the treatment standards  are established below levels at which pose threats to human health and
the environment. Unless the Agency determines risk-based concentration levels that achieve the
minimized threat requirement for a particular waste  stream, EPA believes that BDAT treatment,
as reflected in the proposed UTS levels, fulfills the statutory charge of section 3004(m).

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard.  In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards,  based on the treatment
performance data reviewed, the Agency believes that the new standards are also achievable by
commercial treatment technologies such as stabilization and HTMR.
DCN               PH4P104
COMMENTER      SSINA
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RESPONDER      EE
SUBJECT          LEAD2
SUBJNUM         104
COMMENT

       II.     UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, AND
       LEAD SHOULD BE BASED ON STABILIZATION TECHNOLOGIES. BECAUSE
       STABILIZATION TECHNOLOGIES ARE BOAT FOR MANY TC METAL WASTES

       A.     Because Stabilization is the Only Commercially "Available" Technology For
             Many TC Metal Wastes, Stabilization Technologies Should Be Used as the Basis
             For Determining the UTS For Lead, Cadmium, and Chromium

       As indicated above, HTMR is not commercially available for treatment of many TC
       metal wastes. However, certain stabilization technologies are commercially available.
       Stabilization technologies are also the only practical technology for many TC metal
       wastes, meeting the statutory requirement to "substantially reduce the likelihood of
       migration of hazardous constituents from the waste so that short-term and long-term
       threats to human health and the environment are minimized." RCRA § 3004(m), 42
       U.S.C. § 6924(m). Therefore, results from commercially available stabilization
       technologies should be used to establish the UTS for TC metal wastes. However, the
       Agency should only use reasonable stabilization technologies that do not require the
       addition of excessive amounts of stabilizing material in determining treatment standards
       for TC metal wastes. 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 BOAT Background
       Document (Addendum) For All  Nonwastewater Forms of K061 and Alternative BOAT
       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. BOAT
       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 teachability 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" [p]ut 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

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     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.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate
treatment technology that will treat the waste to the UTS.  The Agency also agrees with  the
commenter that the synergistic effects of different constituents impact the performance of the
stabilization process and the performance will largely depend on the type and concentrations of
metals in the waste. Further, the Agency acknowledges the concerns raised by the commenter
regarding the lack of performance data on stabilization technologies (specifically data that
address multiple metal constituents) and notes that data on commercial stabilization
performance were not received from the commenters in response to the original Phase IV
proposal (60 FR 43654, August 22,1995), and the first supplemental Phase IV proposal (61 FR
2338, January 25, 1996). A few commenters submitted performance data that were based on
composite samples. Since grab samples are required for BDAT determination, the Agency was
unable to use this data for determining the UTS. Therefore, to address concerns on
performance data adequacy, the Agency conducted site visits to commercial hazardous waste
treatment facilities and collected additional stabilization treatment performance data that better
characterized the diversity of metal wastes.

       The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the
most difficult to treat metal-bearing wastes. These waste streams contained multiple metals
which would be representative of a characteristic waste with UHCs, and significant
concentrations of combination metals including: lead and cadmium, barium and lead, and

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chromium and antimony.

      In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data).  The Agency compared
the treatment standards developed based on stabilization and HTMR and selected the highest
(less stringent) standard for each metal to establish the proposed UTS, thus allowing for
maximum process variability and detection limit difficulties.  Thus, as the commenter stated,
the Agency used performance data from commercially available stabilization and HTMR
technologies for determining the UTS for TC metal wastes. Therefore, the Agency believes
that the performance data used to develop the UTS adequately characterizes the diversity
among metal-bearing wastes and accounts  for interference of other metals in the stabilization of
hazardous wastes.

      Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard.  In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency
corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the
treatment performance data reviewed, the Agency believes that the new standards are also
achievable by commercial treatment technologies such as stabilization and HTMR.

      The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat  than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
DCN               PH4P105
COMMENTER     SMA
RESPONDER       EE
SUBJECT          LEAD2
SUBJNUM         105
COMMENT 11. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM,
AND LEAD SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
STABILIZATION TECHNOLOGIES ARE BDAT FOR MANY TC METAL WASTES

A.    Because Stabilization is the  Only Commercially "Available" Technology For Many TC
      Metal Waste, Stabilization Technologies Should Be Used as the Basis For Determining
      the UTS For Lead, Cadmium, and Chromium As indicated above, HTMR is not
      commercially available for treatment of many TC metal wastes. However, certain
      stabilization technologies are commercially available. Stabilization technologies are

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also the only practical technology for many TC metal wastes, meeting the statutory
requirement to "substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term threats to human health
and the environment are minimized." RCRA § 3004(m), 42 U.S.C. § 6924(m).
Therefore, results from commercially available stabilization technologies should be
used to establish the UTS for TC metal wastes. However, the Agency should only use
reasonable stabilization technologies that do not require the addition of excessive
amounts of stabilizing material in determining treatment standards for TC metal wastes.
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 BOAT Background Document (Addendum)
For An Nonwastewater Forms of K061 and Alternative BOAT 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. BOAT 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 teachability 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
"[p]ut 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

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       ability to treat any UHCs in a waste as well as the characteristic metal.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology.  The generators can select any appropriate
treatment technology that will treat the waste to the UTS.  The Agency also agrees with the
commenter that the synergistic effects of different constituents impact the performance of the
stabilization process and the performance will largely depend on the type and concentrations of
metals in the waste. Further, the Agency acknowledges the concerns raised by the commenter
regarding the lack of performance data on stabilization technologies (specifically data that
address  multiple metal constituents) and notes that data on commercial stabilization
performance were not received from the commenters in response to the original Phase IV
proposal (60 FR 43654, August 22, 1995), and the first supplemental Phase IV proposal (61 FR
2338, January 25, 1996).  A few commenters submitted performance data that were based on
composite samples. Since grab samples are required for BOAT determination, the Agency was
unable to use this data for determining the UTS. Therefore, to address concerns on
performance data adequacy, the Agency conducted site visits to commercial hazardous waste
treatment facilities and collected additional stabilization treatment performance data that better
characterized the diversity of metal wastes.

       The stabilization performance data (based on grab  samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the
most difficult to treat metal-bearing wastes. These waste streams contained multiple metals
which would be representative of a characteristic waste with UHCs, and significant
concentrations of combination metals including: lead and cadmium, barium and lead, and
chromium and antimony.

       In addition, the Agency also determined the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data).  The Agency compared
the treatment standards developed based on stabilization and HTMR and selected the highest
(less stringent) standard for each metal to establish the proposed UTS, thus allowing for
maximum process variability and detection limit difficulties.  Thus, as the commenter stated,
the Agency used performance data from commercially available stabilization and HTMR
technologies for determining the UTS for TC metal wastes. Therefore, the Agency believes
that the performance data used to develop the UTS adequately characterizes the diversity
among metal-bearing wastes and accounts for interference of other metals in the stabilization of
hazardous wastes.

       Furthermore, the Agency has identified a technical error in the BDAT determination of
the proposed cadmium and chromium standard.  In applying the BDAT methodology for
calculating the treatment standard, EPA failed to perform a "Z-score" outlier test. The Agency

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corrected this error and re-calculated the cadmium and chromium treatment standard and is
promulgating the UTS for cadmium at 0.11 mg/1 TCLP and chromium at 0.60 mg/1 TCLP.
Although these standards are more stringent than the proposed standards, based on the
treatment performance data reviewed, the Agency believes that the new standards are also
achievable by commercial treatment technologies such as stabilization and HTMR.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
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DCN              PH4P017
COMMENTER     Kodak
RESPONDER      AC
SUBJECT    METL
SUBJNUM         017
COMMENT
      In the spirit of regulatory reform, EPA should not promulgate any
      technology based LDR treatment standards for silver 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.

RESPONSE

      The commenter is referred to the silver section of the Response to Comment document
for EPA's response to this issue.

DCN              PH4P017
COMMENTER     Kodak
RESPONDER      AC
SUBJECT    METL
SUBJNUM         017
COMMENT
      The proposed D011 LDR BOAT 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.

RESPONSE
      The commenter is referred to the silver section of the Response to Comment document
for EPA's response to this issue.
DCN              PH4P017
COMMENTER     Kodak
RESPONDER      AC
SUBJECT   METL
SUBJNUM        017
COMMENT
      Listing of Silver as a TC Characteristic Waste is
      Counterproductive. Previous submissions to EPA's Office of Solid
      Waste have also documented the high level of recovery that
      silver-rich wastes already receive due to silver's high economic

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       value. Inclusion of silver on the TC list also discourages the
       conservation of wash water in photo processing operations, because
       reducing the washwater volume raises the concentration (but not the
       amount) of silver discharged.  This increase in concentration
       increases the likelihood that silver will cause the waste to be
       regulated as a hazardous waste and that the silver concentration
       will exceed the LDR standard.  It can be difficult to justify
       the necessary capital expenditures for water conservation, if this
       increase in the discharge concentration of silver causes it to
       become a hazardous waste, with the resulting expenses.

RESPONSE

       The commenter is referred to the silver section of the Response to Comment document
for EPA's response to this issue.
DCN               PH4P031
COMMENTER      Department of Energy
RESPONDER       AC
SUBJECT    METL
SUBJNUM          031
COMMENT
       V. Treatment Standards for Newly Listed and Identified Wastes
       V.D. Treatment Standards for Toxic Characteristic Metal Wastes
       V.D. 1   Rationale for Applying Universal Treatment
       Standards (UTS) to Toxic Characteristic Metal Wastes (D004-D011)
       1.  p. 43682, col. 2 ~ EPA proposes to change the treatment
       standard levels for characteristic metal wastes from those
       established in the Third Third rule at the characteristic levels to
       previously promulgated UTS levels for metal
       constituents. Furthermore, EPA indicates that characteristic metal
       wastes will also be required
       to meet treatment standards for any UHCs reasonably expected to be
       present in the wastes at the point of generation.
       a.  DOE requests that EPA verify that the preamble description of
       the new treatment standards for characteristic metal wastes is
       consistent with the proposed regulatory language for the table in
       40 CFR 268.40, "Treatment Standards for Hazardous Wastes" (60 FR
       43695). It appears that the constituent concentration levels
       given on this table for waste codes D004 through D011 in the
       columns labeled "Wastewaters" and"Nonwastewaters" should all be
       followed by the phrase "and meet §268.48 standards."

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RESPONSE

       The Agency notes that the preamble description of the new treatment standards for
characteristic metal wastes is consistent with the proposed regulatory language for the table in
40 CFR 268.40, "Treatment Standards for Hazardous Wastes" (60 FR 43694). Although the
reference to meeting §268.48 standards is not included in the table —"Treatment Standards for
Hazardous Waste" -- the regulatory language under "Subpart D-Treatment Standards" (60 FR
43694) clearly states that all underlying hazardous constituents (as defined in §268.2(1)) must
meet UTS found in §268.48, Table UTS, prior to land disposal.
DON               PH4P031
COMMENTER      Department of Energy
RESPONDER       AC
SUBJECT           METL
SUBJNUM          031
COMMENT
       b.  DOE anticipates that meeting the new LDR treatment standard
       for characteristic metal wastes may be a problem for certain
       radioactive waste streams at the Oak Ridge National Laboratory
       (ORNL).  One such waste stream is stabilized supernatant from the
       ORNL Liquid Low-Level Waste System.  This stabilized waste is
       destined for disposal at the Nevada Test Site. Some of the
       stabilized waste is currently in storage, but it will continue to
       be generated beyond the time the LDR Phase IV final rule becomes
       effective.  Conducting analyses on such radioactive wastes has
       historically been a problem because of the need to use reduced
       volumes of samples which makes it difficult to meet the
       required detection limits.  Based on past analyses, lead, selenium,
       cadmium, and/or chromium limits could either be above the
       laboratory's detection limits or exceeded in the final waste form.
       Although the proposed two-year national capacity variance for
       mixed wastes affected by the Phase IV rule and the proposed
       exception from the LDR Phase IV treatment standards for previously
       stabilized mixed wastes will provide a temporary exemption for
       some of these wastes, additional  regulatory modifications are
       requested for addressing this situation.
       DOE requests that EPA consider developing an LDR treatment
       standard of "stabilization" (i.e., establishing a specified

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       technology as the standard) for certain mixed radioactive
       and characteristic metal wastes, provided adequate technical data
       is submitted to the Agency in support of such a standard. Since
       the stabilized waste is radioactive, disposal will be conducted in
       accordance with Atomic Energy Act (AEA) requirements (directed
       at providing adequate protection to human health and the
       environment), and further treatment of certain wastes with very low
       levels of toxic constituents would not seem warranted.

RESPONSE

       characteristic radioactive mixed metal wastes, that have undergone treatment prior to
the effective date of the Phase IV final rule will not require re-treatment. In the event that
treatment standards for the hazardous constituents can not be achieved, the Agency suggests
petitioning for a treatability variance under 268.44.
DCN               PH4P031
COMMENTER      Department of Energy
RESPONDER       AC
SUBJECT           METL
SUBJNUM          031
COMMENT
       V.D.2.   Proposed Revision of UTS for Beryllium
       1.  p. 43683, col. 2 -- EPA proposes to change the UTS for
       beryllium to 0.04 mg/1 TCLP from 0.014 mg/1 TCLP.
       DOE supports the proposed change in the treatment standard for
       beryllium. Based on analytical results from surrogate samples
       spiked with beryllium, a level of 0.04 mg/1 is achievable
       and appropriate, Utilizing stabilization technologies for waste
       streams which do not exceed SOOOparts per million beryllium, a
       level of 0.04 mg/1 can be consistently met. Conversely, the
       current treatment standard of 0.014 mg/1 cannot be met, given the
       same beryllium levels and utilizing stabilization technologies.

RESPONSE

       The beryllium treatment standard of 0.04 mg/1 TCLP proposed in the Phase IV original
proposal (60 FR 43683, August 22, 1995) was based on composite data.  The Agency
recognized that proposing to use composite data is not consistent with the BOAT methodology,
and therefore, re-calculated the treatment standard for beryllium based on available
performance data from HTMR, using grab samples, and re-proposed a treatment standard of
0.018 mg/1 TCLP (actually 0.02 mg/1, due to rounding) in the second supplemental proposed

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rule (62 FR 26045, May 12, 1997). In response to this proposal, several commenters claimed
that the data used to determine the beryllium standard is not representative of the most difficult
to treat waste. To respond to such comments, the Agency conducted a review of the data set
used to calculate the beryllium standard. As a result, the Agency agreed with the commenters
that the performance data used to calculate the proposed standard (0.02 mg/1) does not
adequately account for the difficulty in treating relatively high concentrations of beryllium
wastes (for additional information on the data reviewed, see the Background Document for
Beryllium Wastes in the Docket for this rule). Therefore, the Agency obtained additional
performance data and revised the UTS for beryllium to reflect a more difficult-to-treat or high-
concentration beryllium waste.  As such, the Agency is today promulgating a revised UTS for
beryllium nonwastewaters of 1.22 mg/1 based on this newly acquired data. In light of the
revised UTS for beryllium and the data submitted by the commenter, the Agency believes that
the treatment standard can be met.
DCN               PH4P036
COMMENTER     American Iron & Steel Ins
RESPONDER      AC
SUBJECT    METL
SUBJNUM         036
COMMENT
      Accordingly, EPA should refrain from imposing RCRA Subtitle C
      controls on non-hazardous waste surface impoundments managing
      formerly characteristic wastes.

RESPONSE

      The Agency notes that this issues is not addressed in this rulemaking. The Agency is
currently conducting a 5-year study to assess the effects of decharacterized wastes placed in
surface impoundments, and the issue of RCRA Subtitle C controls to such surface
impoundments will be addressed at the completion of this study.
DCN               PH4P037
COMMENTER     Natural Gas Pipeline Comp
RESPONDER      AC
SUBJECT    METL
SUBJNUM         037
COMMENT
      Natural Gas Pipeline Company of America (Natural) appreciates the opportunity to

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comment on the referenced proposed rule. Natural is an interstate natural gas pipeline
company which operates approximately 13,000 miles of pipeline linking key gulf cost and
Southwest gas producing areas with major Midwest markets

There are several points that Natural feels should be considered by the USEPA in the
referenced proposal for developing treatment standards under the land disposal restrictions
(LDR) program for Toxicity Characteristic (TC) metal wastes.  The following comments relate
to Natural's  specific concerns, however, these issues have implications to the entire gas
industry. Natural supports the comments of the American Gas Association relative to this
rulemaking.

The comments focus on the lack of a risk/cost benefit analysis for establishing treatment
standards for TC metal wastes, the absence of a proposed treatability variance for soils
contaminated with metal wastes, and the unacceptableness of the proposed implementation
date for the treatment of TC metal wastes.

Natural sees the new treatment standards for metals as unreasonable and ultimately
burdensome to the extent that they will increase costs for waste treatment and disposal without
a commensurate level of health risk reduction. The new standards do not appear to be based on
any assessment of health risk but are strictly established on the availability and capability of
treatment technology. Natural recommends that the standards be reevaluated and revised
following a complete risk assessment/cost benefit analysis of the standards.

RESPONSE

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to minimize threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       The D.C. Circuit already sustained the Agencies authority to require such treatment,
and the issue is not reopened here (and is settled law in any case). The Agency finds, for the
purpose of this rule, that none of the treatment standards are established below levels that pose
threats to human health and the environment, since the Agency remains unable to establish
with any certainty nationally-applicable levels at which threats posed by the disposal of these
wastes would be minimized.  Unless the Agency determines risk-based concentration levels
that achieve  the minimized threat requirement for a particular waste stream, EPA believes that
BDAT treatment, as reflected in the proposed UTS levels, fulfills the statutory charge of
section 3004(m).

      For EPA's response on RIA related issues, see the "Comment Response Document for

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Issues Related to Mineral Processing Wastes," in the RCRA docket for today's rulemaking.
DCN               PH4P043
COMMENTER      Lead Industries Association
RESPONDER       AC
SUBJECT           METL
SUBJNUM          043
COMMENT
       RCRA Section 3004(m) requires EPA to specify "levels or methods of
       treatment" which either diminish the toxicity of waste or
       substantially reduce the likelihood of migration of
       hazardous constituents "so that short-term and long-term threats to
       human health and the environment are minimized." The requirement
       that levels or treatment methods adopted pursuant to
       Section3004(m) must minimize such threats necessarily subjects EPA
       to the familiar rule requiring determination that significant
       risks exist under the current regulatory scheme, and that these
       risks will be substantially reduced by EPA's proposal. See, e.g.,
       Industrial Union Department, AFL-CIO v. American Petroleum
       Institute, 448 U.S. 607, 645-646 (1980).
       Indeed, the preamble to the proposed regulation seems to recognize
       this point in its analysis of Chemical Waste Management v. EPA, 976
       F.2d 2 (D.C. Cir. 1992), cert, denied, 113 S. Ct. 1961 (1992), most
       notably in the preamble's statement that the court required EPA
       either to find "that the risk of... emissions ... is minimal,
       or ... [to] require actions to minimize that risk,"976F.2d at
       17, quoted at 60 Fed. Reg. 43657. The requirement that such risk
       findings be made was applied directly to Section 3004(m) in
       Hazardous Waste Treatment Council v. EPA, 886 F.2d355, 362 (D.C.
       Cir. 1989) in which the court stated that it would be
       "unreasonable for EPA to promulgate treatment standards wholly
       without regard to whether there might be a threat to manor
       nature."
       In its decision establishing the Third Third Rule, EPA for  all
       practical purposes concluded that the current 5.0 mg/1 level for
       lead wastes "achieves the statutory minimized threat standard,"
       60Fed. Reg. 43683, (August 22,1995). EPA does not suggest in the
       preamble to the rule it is now proposing that its prior conclusion
       is in error, or that any threat to human health or the environment
       is posed by the present standard, and the evidence is all to the
       contrary.
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RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility. Treatment levels also must minimize short- and long-term threats posed
by the waste to human health and the environment. EPA has stated that EP/TC levels  are
clearly hazardous, and therefore do not represent minimal threat. Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions
using the BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to minimize threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       The D.C. Circuit already  sustained the Agency's authority to require such treatment,
and the issue is not reopened here (and is settled law in any case). The Agency finds, for the
purpose of this rule, that none of the treatment standards are established below levels that pose
threats to human health and the environment, since the Agency remains unable to establish
with any certainty nationally-applicable levels at which threats posed by the disposal of these
wastes would be minimized.  Unless the Agency determines risk-based concentration levels
that achieve the minimized threat requirement for a particular waste stream (see the risk-based
variance for contaminated soils in this rule), EPA believes that BDAT treatment, as reflected in
the proposed UTS levels, best fulfills the statutory charge of section 3004(m).
DCN               PH4P048
COMMENTER      Chemical Waste Management
RESPONDER       AC
SUBJECT    METL
SUBJNUM          048
COMMENT

       Chemical Waste Management, Inc., (CWM) a wholly owned subsidiary of
       WMX Technologies, Inc. (WMX) submits the following comments on EPA's
       proposed Phase IV Land Disposal Restrictions. See 60 Fed. Reg. at 43,654
       (August 22, 1995). WMX is a leading provider of comprehensive hazardous
       waste management services at its 22 hazardous waste facilities located in the
       United States. Its hazardous waste management services, including

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transportation, incineration, on-site services, treatment, resource recovery and
disposal, are furnished principally to commercial and industrial customers, other
waste management companies, and governmental entities.

C.  Treatment Standards for Toxic Characteristic Metals (60 Fed. Reg. at 43,683)

  1.  Changing Treatment Standard Levels From Third Third to UTS

     The Agency is proposing to change the treatment standard levels
     for characteristic metal wastes D004-D011 from those established
     in the Third Third rule at the characteristic levels to those levels
     established under UTS in the Phase II rule.

CWM is extremely concerned with this proposal as it
presently exists.  The Agency's determination that a transfer of
UTS inappropriate because historic data on treatment of
characteristic wastes simply reflect a design to remove the
characteristic and this is not a true measure of the treatability
is a concern.  CWM believes that this change should not be made
simply based on the EPA's perception that stabilization treatment
technology performs at greater efficiencies or to simply provide
consistency with the UTS levels. The Agency has recognized in past
rulemakings that stabilization in many situations may not
consistently achieve these lower levels. CWM believes that EPA
should reconsider whether this change should be made on the basis
of risk versus the capability of industry to treat to lower levels.
The characteristic metal BDAT levels were established on June
1,1990 (55 Fed. Reg. at 22,520) in the Third Third final rule. At
that time it was determined by the Agency that these levels
were achievable and more importantly that they were equally
protective of human health and the environment. In many instances
the nonwastewater and wastewater levels were established at
these levels because it was demonstrated by commenters that these
were the levels that could be consistently achieved. For example,
when discussing D008 treatment standards the Agency states
"After detailed analysis of the available data, EPA concludes
that treatment to 5.0 mg/1 EP best represents the achievable
treatment standard for the entire spectrum of D008 nonwastewaters."
(See 55Fed. Reg. at 22,565) Similar discussions for characteristic
metal wastes exist elsewhere within the Third Third final rule.

RCRA 3004(m) requires that the Agency promulgate treatment
standards that specify levels or methods of treatment that

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       "substantially diminish the toxicity of the waste or
       substantially reduce the likelihood of migration of hazardous
       constituents from the waste so that short-term and long-term
       threats to human health and the environment are minimized." The
       establishment of the Third Third treatment levels met this
       requirement. CWM does not believe that lowering the characteristic
       metal levels to the UTS levels provides any additional protection
       to human health and the environment. CWM maintains that the
       lowering of these treatment standards does not substantially
       diminish the toxicity of the waste or substantially reduce the
       likelihood of migration of the hazardous constituents as the
       characteristic levels currently meet this test.
       The Agency has estimated that economic impact of this proposal to
       be small. CWM disagree with this estimate. CWM believes that
       this proposal will have a significant economic impact on it's
       stabilization facility operations, and the commercial hazardous
       waste treatment industry as a whole.  To treat these D004-D011
       waste streams to the UTS levels will require a significant
       and costly effort.
       Presently CWM's stabilization facilities have approximately 3,440
       approved waste streams that require treatment to below the
       characteristic levels prior to land disposal. To  achieve
       these proposed lower levels will require a significant effort on
       CWM's part to reevaluate these streams to determine if the present
       treatment recipes will meet the proposed standards.  Initial
       estimates indicate that approximately 20% to 30% of these waste
       streams will require development of new treatment recipes at a cost
       of approximately $ 1,000 per profile.  This will result in
       estimating additional costs in a range of $688,000 to $1,032,000
       simply to develop new treatment receipts. Additional costs of
       approximately $5-$ 10 per ton of waste will be  incurred for
       additional reagents needed to treat these wastes. Based upon CWM's
       current stabilization capacity of 500,000 tons, and the current
       percent estimate of profiles requiring new receipts, this could
       potentially add an additional $500,000  to $1,500,000 to the cost of
       stabilization treatment that will ultimately be passed on to the
       customer.  This brings a total impact on CWM's operations of an
       estimated$ 1,188,000 to $2,532,000.

RESPONSE

       The Agency notes that,  as stated in the  background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's

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toxicity or mobility. Treatment levels also must minimize short- and long-term threats posed
by the waste to human health and the environment. EPA has stated that EP/TC levels are
clearly hazardous, and therefore do not represent minimal threat. Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions
using the BOAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level. The Agency finds, for
the purpose of this rule, that none of the treatment standards are established below levels that
pose threats to human health and the environment. Unless the Agency determines risk-based
concentration levels that achieve the minimized threat requirement for a particular wastestream,
EPA believes that BDAT treatment, as reflected in the proposed UTS levels, fulfills the
statutory charge of section 3004(m).

       For EPA's response on RIA related issues, see the "Comment Response Document for
Issues Related to Mineral Processing Wastes," in the RCRA docket for today's rulemaking.
DCN               PH4P048
COMMENTER      CHEM WASTE MGMT
RESPONDER       AC
SUBJECT           METL
SUBJNUM   048
COMMENT
       To support the statements that CWM has made regarding the difficulty in
       meeting these proposed levels CWM is providing data in Attachment 2 that
       reflects some current information regarding waste streams that CWM currently
       treats to meet BDAT for D004-D011 waste streams. This information shows
       that these waste streams which are currently treated to BDAT, in many cases is
       still above the treatment standards proposed in this rulemaking. An example of
       this is a lead (D008) contaminated soil (Profile number BR1166), which prior to
       treatment contains lead at 23.4 ppm TCLP. After treatment the lead is present at
       0.57 ppm TCLP which is higher than the proposed UTS level of 0.37- This
       creates a problem because it is not clear that this waste stream will be able to be
       treated to a level below 0.37 ppm TCLP. CWM urges the EPA to reevaluate the
       impact of such a change.

RESPONSE

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       With respect to the commenter's concerns, in the final rule the Agency is promulgating
a UTS for lead nonwastewaters of 0.75 mg/L TCLP. A standard which can be supported by the
commenter's data.
DCN               PH4P048
COMMENTER      Chemical Waste Management
RESPONDER       AC
SUBJECT    METL
SUBJNUM          048
COMMENT
       3.  Revision to UTS for Beryllium (60 Fed. Reg. at 43, 683)
      The Agency is proposing to change the UTS for beryllium
      nonwastewaters from 0.014 TCLP to 0.04 TCLP. This proposed change
      also provides clarification that the metal treatment
      standards specify grab samples, and that if grab sampling creates
      inconsistencies in achieving UTS levels for a treatment process the
      facility should submit that data to EPA in support of their
      treatment process. This is a position the EPA has maintained since
      the Third Third rulemaking.

      CWM supports the Agency's proposed change for the beryllium
      nonwastewater UTS from 0.014 TCLP to 0.04 TCLP; however CWM
      believes that the Agency is not going far enough.  In the Phase III
      proposed rule (60 Fed. Reg. at 11,702, March 2, 1995) CWM
      presented information regarding Beryllium UTS levels with respect
      to naturally occurring levels of Beryllium being higher than the
      UTS levels.  CWM will once again present this information with the
      hope that the Agency will raise the proposed UTS level to a higher
      level.
      Naturally occurring soil concentration of beryllium generally
      range from 0.1 to 40 ppm with the average around 6 ppm. (Brown,
      K.W., G.G. Evans, Jr., B.D. Frentrup (eds). Hazardous Waste Land
      Treatment. Boston, MA: Butterworth Publishers, 1983.) While
      this information establishes that beryllium is fairly ubiquitous in
      the environment, a USEPA report on l,577drinking water samples
      supports this conclusion. Beryllium was detected in 5.4% of the
      sample sat concentration ranging from 0.01  to 1.22 mg/1.  Dry
      weight concentrations of beryllium in food sources are as
      follows:
      Polished Rice    0.08 mg/kg
      Toasted Bread   0.12 mg/kg
      Potatoes        0.17 mg/kg

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       Tomatoes       0.24 mg/kg
       Lettuce         0.33 mg/kg
       This is a small sampling of foods which are commonly ingested
       which contain beryllium concentrations above the teachable
       concentrations established as the UTS for hazardous waste. (Kopp,
       JF, Kroner, RC; Fed. Water Pollution Control Administration (1967)
       as cited in USEPA; Ambient Water Quality Criteria DOC: Beryllium p.
       C-l (1980) EPA 440/5-80-024).

RESPONSE

       The beryllium treatment standard of 0.04 mg/1 TCLP proposed in the Phase IV original
proposal (60 FR 43683, August 22, 1995) was based on composite data. The Agency
recognized that proposing to use composite data is not consistent with the BDAT methodology,
and therefore, re-calculated the treatment standard for beryllium based on available
performance data from HTMR, using grab samples, and re-proposed a treatment standard of
0.018 mg/1 TCLP (actually 0.02 mg/1, due to rounding) in the second supplemental proposed
rule  (62 FR 26045, May 12, 1997). In response to this proposal, several commenters claimed
that the data used to determine the beryllium standard is not representative of the most difficult
to treat waste. To respond to such comments, the Agency conducted a review of the data set
used to calculate the beryllium standard. As a result, the Agency agreed with the commenters
that the performance data used to calculate the proposed standard (0.02 mg/1) does not
adequately account for the difficulty in treating relatively high concentrations of beryllium
wastes  (for additional information on the data reviewed, see the Background Document for
Beryllium Wastes in the Docket for this  rule). Therefore, the Agency obtained additional
performance data and revised the UTS for beryllium to reflect a more difficult-to-treat or high-
concentration beryllium waste. As such, the Agency is today promulgating  a revised UTS for
beryllium nonwastewaters of 1.22 mg/1 based on this newly acquired data.  While the
commenter stated that they supported the higher standard of 0.14 mg/L TCLP that was
proposed, there was no discussion as to a higher standard alluded to by the commenter. In the
absence of any additional data, the Agency has to believe that the 1.22 mg/L TCLP standard is
achievable.

       In addition, the Agency notes that the LDR program is based on the premise that
regulated constituents are to be treated using the BDAT to minimize threats to human health
and the environment. The issue of toxicity is not within the scope of the BDAT determination.
DCN               PH4P069
COMMENTER      SSPC
RESPONDER       AC
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SUBJECT    METL
SUBJNUM          069
COMMENT
      SSPC respectfully submits our comments on 40 CFR Parts 148, 268 and 271, Land
Disposal Restrictions-Phase IV: Issues Associated with Clean Water Act Treatment
Equivalency, Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic
Metal Wastes, per the August 22,1995 Federal Register.

       Introduction to SSPC

       SSPC is a not-for-profit technical/trade association whose mission is to improve
       the technology and practice of protective coatings and to promote cost-effective,
       safe and environmentally compliant protective coatings  for industrial structures.
       The SSPC  has approximately 8000 individual members  and 600 organizational
       members consisting of the following demographic groups:
       Painting and general contractors
       Public and private facility owners
       Steel fabricators
       Material and equipment suppliers
       Consulting training and engineering firms
       Health, safety and environmental professionals and firms.
       SSPC has been actively involved in lead paint removal and related issues for
       almost 10 years, having organized the first national conference on industrial
       lead paint removal in 1988 in conjunction with a workshop run for the Federal
       Highway Administration. SSPC has developed and delivered lead paint removal
       training to  over 2000 individuals in the last 3 years. SSPC has developed and
       disseminated standards on containment, waste disposal and on qualifying
       contractors.
       In addition, SSPC has published and distributed several  books  on the subject
       and consistently presents information on new technology, regulations and
       practice through the Journal of Protective Coatings and Linings and Pb (Lead
       Paint Bulletin).
       Impact of Revised Standard on SSPC Constituency
       - Waste containing heavy metals generated from paint removal operations is
       routinely tested for TCLP for lead. It is less commonly tested for chromium and
       cadmium.
       - Lead content is often at 5 mg/1 or greater, thereby requiring treatment to reduce
       leachability.
       - The great majority of hazardous lead wastes are shipped to TSD facilities for
       treatment.  A small percentage is treated on site under the 90 Day Rule. Also,
       some abrasive is pre-blended with proprietary additives to render waste non
       hazardous.
       - Commonly used treatments, primarily Portland cement, are expected to reduce

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       leachability to less than 0.37 mg/1, the proposed standard for lead.
       - The protective coatings industry has very little experience with the treatment
       of cadmium, chromium and other heavy metals.
       Protective Coating Industry Concerns
 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., FHWARD-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 waste 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.
       Another concern is the confusion of the proposed standards. The
       protective coatings industry has accepted the 5 mg/1 criterion for
       lead. The new rule does not seem logical. If a waste generated
       having a TCLP level of (for example) 3 mg/liter is non-hazardous,
       then why is a waste generated at  a higher level (e.g.,  20 mg/1) and
       treated to 3 mg/1 not acceptable? Some generators may mistakenly
       believe that any waste above 0.37 is automatically hazardous and
       requires additional treatment. This perception  could result in
       unnecessary treatment costs.  Our industry has already seen prices
       increase dramatically as a result of RCRA and other
       waste regulations. The confusion inherent in the rule may lead some
       specifiers to require all lead-containing (or other heavy
       metal-containing) waste to be handled, treated and disposed as if
       it were hazardous. Again, this would unnecessarily increase the
       cost of lead paint removal and infrastructure maintenance.

RESPONSE

       In response to the concerns raised by the commenters regarding the lack of stabilization
data for TC metal wastes, the Agency conducted site visits to commercial hazardous waste
treatment facilities and collected additional stabilization treatment performance data that better
characterized the diversity of metal wastes. These stabilization (using Portland cement)
performance data (based on grab samples) represented a wide range of metal-bearing wastes
(both listed and characteristic) that the Agency believes represents the most difficult to treat
metal-bearing wastes.  These waste streams contained multiple metals which would be

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representative of a characteristic waste with UHCs, and significant concentrations of
combination metals including: lead and cadmium, barium and lead, and chromium and
antimony. Therefore, the Agency believes that the performance data used to develop the UTS
proposed in the second supplemental rule (62 FR 26041, May 12, 1997) adequately
characterizes the diversity in metal-bearing wastes including multiple metal containing
hazardous wastes. The Agency also would like to note that if a particular waste is unique or
possesses properties making it difficult to treat, the affected party may petition the Agency for
a treatability variance as per 40 CFR 268.44 on as case-by-case basis.                     /

       With respect to the commenters concern regarding a potential confusion of the
proposed standards, the Agency notes that the TC levels that determine whether the waste is
hazardous or not is not based on the best demonstrated available technology (BDAT). A, under
the statutory requirements of the RCRA Sec. 3004(m), is legally obligated to establish
treatment standards using the BDAT for RCRA hazardous waste,  and therefore, has developed
technology based UTS.  EPA believes that, in certain cases, further treatment of characteristic
metal wastes below the TC level may be required in order to minimize threats to human health
and the environment from these wastes within the meaning of 3004(m). As stated previously
in the Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the  goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.  Unless the Agency
determines risk-based concentration levels that achieve the minimized threat requirement for a
particular waste stream, EPA believes that BDAT treatment, as reflected in the proposed UTS
levels, fulfills the statutory charge of section 3004(m).
DCN               PH4P080
COMMENTER      EASTMAN
RESPONDER       AC
SUBJECT           METL
SUBJNUM          080
COMMENT    IV.  EPA Cannot Legally Adopt Option 3 In its Chem Waste
       decision, the court made clear that non-hazardous CWA treatment
       impoundments can be used to manage untreated characteristic
       wastes if two criteria are met: (1) the waste is decharacterized
       and (2) the toxicity of hazardous constituents in the waste has
       been reduced before exiting the CWA treatment facility. "Thus,
       we agree with the EPA that, under RCRA, diluted formerly
       characteristic wastes may be placed in subtitle D surface
       impoundments which are part of an integrated CWA treatment
       train. However, in order for true "accommodation" to be
       accomplished, we find that RCRA treatment requirements cannot be
       ignored merely because CWA is Implicated; that is, the CWA does

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       not override RCRA. Thus, we hold that, whenever wastes are put
       in CWA surface impoundments before they have been treated
       pursuant to RCRA to reduce the toxicity of all hazardous
       constituents, these wastes must be so treated before exiting the
       CWA treatment facilities. In other words, CWA facilities
       handling characteristic wastes must remove the characteristic
       and decrease the toxicity of the waste's hazardous constituents
       to the same degree that treatment outside a CWA system would."
       (976 F.2d at 37) (emphasis added) EPA's option 3 requires  that
       characteristic hazardous wastes meet UTS for underlying
       hazardous constituents before entering the impoundment. This
       option is totally inconsistent with the court's dictate since it
       would prohibit the management of untreated decharacterized
       wastes in nonhazardous CWA impoundments. It must therefore be
       rejected by EPA.

RESPONSE

       [The Agency notes that this issues is not addressed in this rulemaking. The Agency is
currently conducting a 5-year study to assess the effects of decharacterized wastes placed in
surface impoundments, and the issue of RCRA Subtitle C controls to such surface
impoundments will be addressed at the completion of this study.

DCN               PH4P094
COMMENTER      General Motors Corp.
RESPONDER       AC
SUBJECT           METL
SUBJNUM          094
COMMENT

       In response to the "Federal Register" notice of August 22,1995, (60 FR 43654)
       and request for comment on the proposed rules on "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", the General Motors Corporation (GM 1)
       wishes to submit the following comments for consideration by EPA.

       General Motors has a concern with the lowering of the LDR levels
       for the TC metals without mention of satisfying statutory
       requirements for the lower numbers.
       Statutory Authority - Judicial Ruling
       The General Motors Corporation appreciates the current quandary
       that the CWM v. EPA I ruling has caused with regard to the judicial

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interpretation of Land Disposal of Hazardous Waste.  The court's
ruling focused on 3004(m) which states in part"... the
Administrator shall promulgate regulations establishing such
performance standards, applicable to ... as may be necessary
to protect human health and the environment".  In 1976 Congress
intended that EPA act to"reasonably protect human health and the
environment"; implying that cost effectiveness and prioritization
of goals and efforts should be considered. The House Report II on
RCRA 1976statedthat:
"... the Administrator is also required to promulgate performance
standards applicable to those facilities operated for the
treatment, storage or disposal of wastes identified as hazardous.
These performance standards must reasonably protect human health
and the environment." (emphasis added)
With HSWA it appears that a shift had occurred in that
reasonableness should no longer be considered; however, an onus was
placed on the agency to "conclude"  and demonstrate that
land disposal may not be protective of human health and the
environment. In the House Report III on the HSWA 1984 it is quoted
that:
"The standard for the Administrator's determination of whether to
allow one or more methods of land disposal for any hazardous waste
is whether it may reasonably be anticipated that the method of land
disposal may not be protective of human health and the
environment. For this regulatory standard, the  Committee intends a
presumption that land disposal not be allowed  if the Administrator
can conclude that land disposal may not be protective of human
health and the environment." (emphasis added)
In 1992, with the CWM v.  EPA I case the courts have forced EPA to
greatly broaden the universe of waste regulated by Subtitle C by
increasing those wastes entering RCRA directly (I. e., listed or
characteristic waste) to include those wastes entering indirectly
(decharacterized waste).  In spite
of EPA's arguments with regard to corrosivity,  dilution,
deactivation, aggregation, etc., the court found that wastes that
no longer exhibited a characteristic of hazardous could still pose
a threat to human health and the environment. It is noteworthy that
Congress charged the executive branch of the federal government (e.
g., EPA) with the responsibility to determine if human health or
the environment is impacted by land disposal activities and then to
appropriately regulate such situations. And now with CWM v. EPA
the judicial branch of our government has taken on the role of
determining if human health or the environment is impacted;

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       without employing sound scientific reasoning.
       The focus of the comments that directly follow relates to this
       court ruling and what the General Motors believes are contrary to
       the intent of the statue of 1976 and the amendments of 1984.
       The overriding theme to the comments put forth here is General
       Motors' strong opposition to the introduction into Subtitle C this
       new hybrid of the "mixture rule".  This "proposed extension of the
       mixture rule concept" causes an entire wastewater system to be
       termed a decharacterized waste, and subject to 40 CFR Part 268; if
       any wastewater stream, less any de minimis level established by the
       Agency, contributing to an industrial wastewater system meets the
       RCRA definition of a hazardous waste.

RESPONSE

       The Agency notes that this issues is not addressed in this rulemaking.  The Agency is
currently conducting a 5-year study to assess the effects  of decharacterized wastes placed in
surface impoundments, and the issue of RCRA Subtitle C controls to such surface
impoundments will be addressed at the completion of this study.

DCN               PH4P094
COMMENTER      General Motors Corp.
RESPONDER       AC
SUBJECT           METL
SUBJNUM          094
COMMENT
       Treatment  Standards for Toxic Characteristic Metal Wastes (60 FR
       43682)
       The court in the Hazardous Waste Treatment v. EPA V affirmed EPA's
       interpretation  of Sec.3004(m) justifying the use a BDAT (Best
       Demonstrated Available Technology) approach to establishing LDR
       levels. However, Congress did provide some guidance in the
       HWSA amendments in Sec. 3004(d) (see footnote no. 4) with respect
       to what factors should be considered in determining land disposal
       prohibition criteria.  This rational that was used in today's proposal for lowering the
       Land Disposal Restriction levels for characteristic metal wastes is
       based upon the availability and performance of certain technologies
       to achieve  lower levels.  Technology will always advance; it does
       not mean that  treatment levels should be lowered. The agency
       should consider the factors that Congress described in Sec. 3004(d)
       to determine what levels are adequate to protect human health and
       the environment. General Motors does not have data or evidence indicating the
       proper treatment levels for any TC metals.  General Motors does

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       have a concern that treating for treatment's sake will lead
       (is leading) to higher disposal cost for no apparent environmental
       benefit (emphasis added).
       Today's climate of budget cuts and prioritization should cause the
       Agency some pause when considering the need for Subtitle C
       regulation of units and industries previously unregulated; unless
       there is a clear and measurable demonstration that human health or
       the environment is being impacted. General Motors has reviewed the
       information contained within the docket and does not believe that
       such regulation is necessary. The agency may wish to reconsider
       its approach in interpreting and attempting to satisfy the judicial
       requirements caused by CWM v. EPA I .

RESPONSE

       In the absence of reliable data indicating when threats to human health and the
environment are minimized, the Agency believes that the technology-based regime adopted
here is the most appropriate. In addition, the central thrust of section 3004 (d) is the inherent
uncertainty of using predictive methodologies to assess long-term risks posed by land disposal.
This reinforces the Agency's decision to adopt standards that provide some objective means of
assuring that mobility of metals has been substantially reduced.
In addition, the Agency would like to point out that the commenter misquotes the standard in
section 3004 (m), which is to minimize threats posed by land disposal, a stricter standard that
'as necessary to protect human health and the environment'. Furthermore, "protective" land
disposal is a term of art, defined in section 3004 (d) (1) and elsewhere to mean a unit capable of
meeting the exacting no-migration standard.

DCN               PH4P097
COMMENTER      Hazardous Waste Management
RESPONDER       AC
SUBJECT     METL
SUBJNUM          097
COMMENT

Attached are the comments of the Hazardous Waste Management Association on the Agency's
proposed rule,  "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" (60 FR 43654). The Hazardous Waste Management
Association (HWMA), a division of the Environmental Industries Association (El A), is the
leading trade association for companies that provide hazardous waste management services in
the United States. HWMA's members include hazardous waste treatment, storage and disposal

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facility owners and operators; hazardous waste transporters, remediation contractors, and
emergency spill response contractors. The EIA represents some 2000 member companies in all
facets of the waste management industry including both hazardous and nonhazardous waste
management and manufactures of waste equipment.

Treatment Standards for Toxic Characteristic Metals (60 FR 43683)
       Changing Treatment Standard Levels From Third Third to UTS
       The Agency proposes to change the treatment standard levels for
       characteristic metal wastes D004-D011 from those established in the
       Third Third rule at the characteristic levels to those treatment
       levels established under UTS in the Phase II rule. HWMA is
       concerned with the Agency's determination that a transfer of UTS is
       appropriate because historic data on treatment of characteristic
       wastes simply reflect a design to remove the characteristic, and
       that this is not a true measure of the treatability. This change
       should not be made based on EPA's perceived ability of the
       treatment technology of stabilization to perform to greater
       efficiencies or to simply provide
       consistency with the UTS levels. The Agency has recognized in past
       rulemakings that stabilization in many situations may not
       consistently achieve these lower levels. EPA should
       reconsider whether this change should be made should be based on
       risk versus the capability of industry to treat to lower levels.
       The characteristic metal BDAT levels were established on June 1,
       1990 (55 FR 22520) in the Third Third final rule. At that time, it
       was determined by the Agency that these levels were achievable and,
       more importantly, that they were equally protective of human
       health and the environment. In many instances, the nonwastewater
       and wastewater levels were established at these levels because it
       was demonstrated by commenters that these were the levels that
       could be consistently achieved. For example, when discussing D008
       treatment standards the Agency states,"After detailed analysis of
       the available data, EPA concludes that treatment to 5.0 mg/1 EP
       best represents the achievable treatment standard for the entire
       spectrum of D008 nonwastewaters" (55 FR 22565).  Similar discussions
       for characteristic metal wastes exist elsewhere within the Third
       Third final rule. 1
       1 See 55 FR 22,569 for D004; 55 FR 22,561 for D005; 55 FR 22,562
       for D006; 55 FR 22.563for D007; 55 FR 22,565for D008.
       RCRA §3004(m) requires that the Agency promulgate treatment
       standards that specify levels or methods of treatment that,
       substantially diminish the toxicity of the waste or substantially
       reduce the likelihood of migration of hazardous constituents from the

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       waste so that short-term and long-term threats to human health and
       the environment are minimized."  The establishment of the Third
       Third treatment levels met this requirement. Lowering the
       characteristic metal levels to the UTS levels does not provide any
       additional protection to human health and the environment.
       The lowering of these treatment standards does not substantially
       diminish the toxicity of the waste or substantially reduce the
       likelihood of migration of the hazardous constituents as the
       characteristic levels currently meet this test.
       The Agency has estimated the economic impact of this proposal to
       be small. We disagree with this estimate, and believe that this
       proposal will have a significant economic impact on the
       hazardous waste treatment industry. To treat these D004-D011 waste
       streams to the UTS levels will require  a significant and costly effort.
       In consideration of the above, the Agency's statement in the
       regulatory impact analysis under the Benefit Estimate Results
       discussion which states, "The Agency  has estimated the
       benefits associated with today's proposed rule to be small" (60 FR
       43690) is incorrect. To the contrary, the potential benefits to
       the environment from these changes are small while the projected
       costs are clearly not.  For these reasons, the Agency should
       maintain the current D004-D011 BOAT  levels.
       In lieu of maintaining the current metal characteristic treatment
       standards, the Agency could consider the establishment of two
       "High" subcategories  for both arsenic and selenium wastewaters and
       nonwastewaters.  Both of these compounds present technical
       problems in achieving lower levels, and it is not clear that one
       can meet the proposed levels utilizing existing
       stabilization technology.  The following is recommended:
       1) Establish a "High  arsenic greater than 200 ppm subcategory"
       with a treatment level of 5 mg/1 for arsenic wastewaters and
       nonwastewaters, and
       2) Establish a "High  selenium greater than 200 ppm subcategory"
       with a treatment levels of 10 mg/1 for both wastewaters and
       nonwastewaters.
       These subcategories will help to ensure that §3004(m) requirements
       are met, and will resolve current problems meeting the present UTS
       NWW level.

RESPONSE

       The Agency notes that, as stated in the background section for previous rule-makings,
section 3004(m) of RCRA states that treatment standards must substantially diminish a waste's

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toxicity or mobility.  Treatment levels also must minimize short- and long-term threats posed
by the waste to human health and the environment. EPA has stated that EP/TC levels are
clearly hazardous, and therefore do not represent minimal threat. Thus in setting the treatment
standards for TC metal wastes at the UTS levels, the Agency is seeking to achieve substantial
reductions in toxicity and mobility for these wastes, not merely incidental or small reductions
using the BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to minimize the threats to human health and the
environment from these wastes within the meaning of 3004(m).  As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the  goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.

       The D.C. Circuit already sustained the Agencys authority to require such treatment, and
the issue is not reopened here (and is settled law in any case). The Agency finds, for the
purpose of this rule, that none of the treatment standards are established below levels that pose
threats to human health and the environment, since the Agency remains unable to establish
with any certainty nationally-applicable levels at which threats posed by the disposal of these
wastes would be minimized. Unless the Agency determines risk-based concentration levels
that achieve the minimized threat requirement for  a particular waste stream, EPA believes that
BDAT treatment, as reflected in the proposed UTS levels, fulfills the statutory charge of
section 3004(m).

       In the absence of reliable data indicating when threats to human health and the
environment are minimized, the Agency believes that the  technology-based regime adopted
here is the most appropriate. In addition, the central thrust of section 3004  (d) is the inherent
uncertainty of using predictive methodologies to assess long-term risks posed by land disposal.
This reinforces the Agency's decision to adopt standards that provide some objective means of
assuring that mobility of metals has been substantially reduced.  The Agency finds, for the
purpose of this rule, that none of the treatment standards are established below levels that pose
threats to human health and the environment. Unless the Agency determines risk-based
concentration levels that achieve the minimized threat requirement for a particular wastestream
(as for contaminated  soil), EPA believes that BDAT treatment, as reflected in the proposed
UTS levels, fulfills the statutory charge  of section 3004(m).

       With respect to the comment on establishing subcategories for arsenic and selenium, the
Agency notes that treatment standard for arsenic was  not addressed in the current rulemaking
and therefore, is not soliciting any comments on this issue. Regarding the comment on high
selenium subcategory, EPA reviewed all the treatment data and has determined that,  for the
most part, waste streams containing selenium exist either  in relatively low concentrations (0.1
to 0.13 mg/L TCLP)  or in extremely high concentrations (greater than 450 mg/L TCLP). Data
on high selenium  containing wastes was submitted by Waste Management, Inc. for three waste

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streams.  The Agency is convinced that these three high-level selenium containing waste
streams would be unable to treat selenium to 5.7 mg/L TCLP.  Therefore, in today's rule, the
Agency is requesting comment on a proposal to grant a site-specific treatability variance for
Waste Management, Inc. for the treatment of these three DO 10 wastes containing greater than
450 ppm TCLP of selenium.  The commenter is referred to a separate notice contained in the
Federal Register for this rule for additional information. The Agency is promulgating the
selenium treatment standard for all other wastes, covered by today's rule, at 5.7 mg/L TCLP.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.

DCN               PH4P097
COMMENTER     Hazardous Waste Management
RESPONDER       AC
SUBJECT    METL
SUBJNUM          097
COMMENT
       Revision to UTS for Beryllium (60 FR 43683)
       The Agency proposes to change the UTS for beryllium nonwastewaters
       from 0.014 TCLP to 0.04 TCLP. This proposed change also provides
       clarification that the metal treatment standards specify grab
       samples and that, if grab sampling creates inconsistencies in
       achieving UTS levels fora treatment process, the facility should
       submit that data to EPA in support of their treatment process.
       This  is a position the EPA has maintained since the Third Third
       rulemaking. HWMA supports the Agency's proposed change for the
       beryllium nonwastewater UTS from 0.014 TCLP to 0.04 TCLP.

RESPONSE

       The Agency appreciates that commenters support. The Agency also notes that, in
response to EPA's proposal for revising the beryllium standard, several commenters stated that
the data used to determine the beryllium standard is not representative of the most difficult to
treat waste. To respond to such comments, the Agency conducted a review of the data set used
to calculate the beryllium standard.  As a result, the Agency agreed with the commenters that
the performance data used to calculate the proposed standard (0.02 mg/1) does not adequately
account for the difficulty in treating relatively high concentrations of beryllium wastes (for
additional information on the data reviewed, see the Background Document for Beryllium
Wastes in the Docket  for this rule).  Therefore, the Agency obtained additional performance
data and revised the UTS for beryllium to reflect a more difficult-to-treat or high-concentration
beryllium waste. As such, the Agency is today promulgating a revised UTS for beryllium

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nonwastewaters of 1.22 mg/1 based on this newly acquired data.
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MISCELLANEOUS COMMENTS ON THE ORIGINAL PHASE IV PROPOSAL,
AUGUST 22,1995

DCN    PH4P008
COMMENTER DEPARTMENT OF ENV. PROTECTION
RESPONDER SS
SUBJECT  MISC
SUBJNUM  008
COMMENT
       Your proposed Phase IV land disposal restrictions are flawed in that they
       accomplish very little in the way of preventing releases of hazardous
       constituents. The releases from decharacterized wastes in non POTW surface
       impoundments are minuscule in comparison to the releases from listed wastes
       disposed in NPDES systems, including WWTU tanks and POTW systems. The
       proposal merely adds another twist to already horribly convoluted regulations.
       Instead of complaining about court cases setting the regulatory agenda, EPA
       should try to work with environmental groups to negotiate a settlement that
       eliminates an equivalent amount of toxic releases in a more straight forward
       manner. It is no wonder the public is fed up. EPA puts off making politically
       unpopular decisions by inserting into preambles statements along the lines of:
       "EPA is considering adopting regulations to..." EPA has been considering
       modifying the U and P  lists to include chemical mixtures since 1980 and has not
       gotten around to it. If EPA would make a decision on some of these cases, it
       might get the Environmental Defense Fund to drop some of the stupid stuff.
RESPONSE

       EPA is not finalizing the surface impoundment LDRs to which the comment refers. In
the August 22, 1995 Phase IV proposal, EPA discussed three options for ensuring that
underlying hazardous constituents in decharacterized wastes were not released to the
environment via leaks, sludges, and air emissions from surface impoundments in systems
regulated by the Clean Water Act or Safe Drinking Water Act (60 FR 43655). On March 16,
1996, the President signed the Land Disposal Program Flexibility Act of 1996, which provides
that the wastes in question are no longer prohibited from land disposal once rendered
nonhazardous. As a result, on April  8,1996, EPA withdrew its treatment standards for these
wastes  (61  FR 15660). Today's Phase IV final rule will not promulgate provisions for
managing leaks, sludges, and air emissions from surface impoundments.
DCN     PH4P038
COMMENTER  Association of Battery Recyclers
RESPONDER  SS
SUBJECT  MISC
SUBJNUM  038
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COMMENT
       In addition to being unnecessary under §3004 (m), EPA's proposed
       application of the UTSs to characteristic metal wastes is
       premature. The Agency is currently under no legal obligation
       to revise the applicable treatment standards. Moreover, by
       proposing to revise the treatment standards at this time, EPA runs
       the risk of promulgating requirements which are inconsistent with
       the risk-based "exit levels" for D008 wastes that are likely to be
       included in the Hazardous Waste Identification Rule ("HWIR"). See,
       draft proposed rule; Hazardous Waste Management System:
       Identification and Listing of Hazardous Waste (August, 1995).5

       A principal tenet of the Administration's Reinventing
       Environmental Regulation initiative, is ensuring that the level of
       regulation of a particular constituent or process corresponds with
       the potential risk posed by such constituent or process, and with
       the degree of environmental protection that will be achieved
       through regulation. In particular, the ABR notes that
       the"treatment of... hazardous constituents to levels below
       those which the Agency would consider necessary to protect human
       health and the environment," is specifically included in EPA's
       list of Targeted Legislative Changes to RCRA." 60 Fed. Reg. 20,993
       (1995).
       In proposing to apply the UTSs to characteristic metal wastes, EPA
       has not adequately explained why concentration levels as low as the
       UTSs are necessary to protect human health and the environment from
       the potential risk posed by treated D008 materials. The ABR
       maintains that the current D008 waste treatment and disposal
       practices mandated by the 1990 Third Third Rule, adequately ensure
       that the protective standard established by RCRA §3004 (m) is met.
       The imposition of the UTSs in this situation is unwarranted, and
       would result in the significant, potentially permanent, economic
       disruption of a valuable recycling industry in return for
       a negligible environmental benefit. This certainly is the type of
       result that the Administration recognizes can no longer be
       condoned.

RESPONSE

       The Toxicity Characteristic levels are the levels at which constituents are clearly
hazardous, not the levels at which threats from the constituents are minimized.  EPA finds, for
purposes of this rule, that none  of the treatment standards are established below levels at which
threats to human health and the environment are minimized.  See 55 FR at 22652 (June 1,

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 1990); 51 FR at 21648 (June 13, 1986); 55 FR 11798 (March 29,1990). This finding stems
 from the Agency's inability at the present time to establish concentration levels for hazardous
 constituents which represent levels at which threats to human health and the environment are
 minimized.  Unless the Agency determines nationally applicable risk-based concentration
 levels that achieve the "minimized threat" requirement for a particular wastestream, the Agency
 believes that BDAT treatment (as reflected by the UTS levels) fulfills the statutory charge.
 Technology-based standards have been upheld as a permissible means of implementing RCRA
 3004(m) (see Hazardous Waste Treatment Council v. EPA, 886 F.2d 345 D.C. Cir. 1989, cert.
 denied 11 IS. Ct 139 (1990). The approach of setting standards below the characteristic level
 was upheld in Chemical Waste Management v. EPA  (976 F.2d 2).

       The commenter is concerned that the Phase IV treatment standards might be
 inconsistent with the HWIR risk-based "exit levels." Because the HWIR effort is technically
 complex and will not be completed for some time, and because the exit  levels will be
 thoroughly coordinated with the existing treatment standards, there is no inconsistency
 problem.
DCN     PH4P043
COMMENTER  Lead Industries Associati
RESPONDER  SS
SUBJECT  MISC
SUBJNUM   043
COMMENT
       LIA supports the positions taken by BCI and ABR, and will focus
       its comments on what it considers the principal reason why the
       proposed rule conflicts with the requirements of the Resource
       Conservation and Recovery Act and should not be adopted ~ the
       fact that no showing has been made that the proposal is necessary
       to protect human health and the environment.

RESPONSE
       The Toxicity Characteristic levels are the levels above which constituents are clearly
hazardous, not the levels at which threats from the constituents are minimized. See 55 FR at
22652 (June 1,1990); 51 FR at 21648 (June 13, 1986); 55 FR 11798 (March 29, 1990). EPA
finds, for purposes of this rule, that none of the treatment standards are established below levels
at which threats to human health and the environment are minimized. This finding stems from
the Agency's inability at the present time to establish concentration levels for hazardous
constituents which represent levels at which threats to human health and the environment are
minimized. Unless the Agency determines nationally applicable risk-based concentration
levels that achieve the "minimized threat" requirement for a particular wastestream, the Agency
believes that BDAT treatment (as reflected by the UTS levels)  fulfills the statutory charge.
Technology-based standards have been upheld as a permissible means of implementing RCRA

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3004(m) (see Hazardous Waste Treatment Council v. EPA, 886 F.2d 345 D.C. Cir. 1989, cert.
denied 11 IS. Ct 139 (1990). The approach of setting standards below the characteristic level
was upheld in Chemical Waste Management v. EPA (976 F.2d 2).

DCN     PH4P045
COMMENTER  BATTERY COUNCIL INTERNATIONAL
RESPONDER  SS
SUBJECT  MISC
SUBJNUM  045
COMMENT
        B. The Universal Treatment Standards Contravene The Administration's
       Reinventing Environmental Regulation Initiative

       EPA's proposed application of the UTS to characteristic metal wastes, and in particular
to D008 wastes, contravenes the Clinton Administration's Reinventing Environmental
Regulation initiative. 36 Avoidance of treatment of a "waste's hazardous constituents to levels
below those which the Agency would consider necessary to protect human health and the
environment" is specifically included in EPA's list of targeted changes to the RCRA program.
37

       By proposing to apply the UTS to characteristic metal wastes, EPA has violated the
letter and spirit of the Reinventing Environmental Regulation Initiative. As discussed in
Section II, application of the proposed UTS to characteristic metal wastes is not necessary to
protect human health and the environment. The concentrations of hazardous constituents
remaining in stabilized D008 wastes generated by the lead (or battery) and lead recycling
industries currently do not pose a threat to human health and the environment.

       Moreover, also as described above, the imposition of the UTS to characteristic metal
wastes will result in a significant economic disruption of the secondary lead smelting and
battery recycling industry, in return for a negligible environmental benefit. This is not the type
of regulation that is "designed to achieve environmental goals in a manner that minimizes costs
to individuals, businesses, and other levels of government" contemplated by the Reinventing
Environmental Regulation Initiative. 38

RESPONSE

       The Toxicity Characteristic levels are the levels above which constituents are clearly
hazardous, not the levels at which threats from the constituents are minimized.  EPA finds, for
purposes of this rule, that none of the treatment standards are established below levels at which
threats to human health and the environment are minimized.  This finding stems from the
Agency's inability at the present time to establish concentration levels for hazardous
constituents which represent levels at which threats to human health and the environment are
minimized. Unless the Agency determines nationally applicable risk-based concentration

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levels that achieve the "minimized threat" requirement for a particular wastestream, the Agency
believes that BDAT treatment (as reflected by the UTS levels) fulfills the statutory charge.
Technology-based standards have been upheld as a permissible means of implementing RCRA
3004(m) (see Hazardous Waste Treatment Council v. EPA, 886 F.2d 345 D.C. Cir. 1989, cert.
denied 111S. Ct 139 (1990). The approach of setting standards below the characteristic level
was upheld in Chemical Waste Management v. EPA (976 F.2d 2).

       The commenter states that the treatment standard for D008 TC lead waste will cause
economic hardship and is at odds with the Administration's reinvention efforts. EPA directs
the commenter to the economic analysis for the Phase IV rule, which concludes that the revised
treatment standards for TC metals will not result in compliance costs by the regulated
industries.

DCN     PH4P047
COMMENTER  Merck
RESPONDER SS
SUBJECT   MISC
SUBJNUM   047
COMMENT
       2) The Agency is proposing to allow characteristic metal wastes
       that have undergone stabilization prior to the effective date of
       Phase IV of the LDR rule to comply with the LDR metal
       standards that were in effect at the time of stabilization. We
       support this proposal and concur with the Agency's statements to
       require retreatment would present significant risks.
       3) We concur with Agency that there are no environmental justice
       concerns with this proposal because it will reduce risks and
       therefore benefit all.

RESPONSE

       EPA thanks the commenter for the support expressed.

DCN     PH4P065
COMMENTER  Safety-Kleen Corp.
RESPONDER SS
SUBJECT   MISC
COMMENT
       Safety-Kleen Corp. appreciates the opportunity to comment on the U.S.
       Environmental Protection Agency's (EPA) proposed regulation regarding the
       Land Disposal Restrictions — Phase IV: Issues Associated With Clean Water
       Act Treatment Equivalency, and Treatment Standards for Wood Preserving
       Wastes and Toxicity Characteristic Metal, published in the August 22, 1995 FR

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(60 FR 43654). These comments are being provided in triplicate, as specified in
the Federal Register notice. A diskette copy, in ASCII (TEXT) format, is also
provided.

Safety-Kleen is the world's largest recycler of solvents and other contaminated
fluids, providing environmentally beneficial waste management services to
nearly 400,000 customers in the U.S.  While Safety-Kleen offers a range of
waste recycling and energy recovery services, we specialize in servicing small
businesses. Our recycling services provide a valuable option for small
businesses to recycle waste rather than dispose of material through land
disposal, discharge to sewers or outfalls, or other disposal methods. Recycling
is a key vehicle for progress in pollution prevention efforts by reducing
demands for virgin materials, preserving natural resources, and eliminating the
risks and costs associated with waste disposal or waste discharges.

The majority of the waste materials entering the Safety-Kleen system are
recycled into usable products (e.g., parts washer solvent, paint thinners, motor
oils) or are recycled into alternative fuels.  Safety-Kleen's primary recycling
operations fall into three categories: solvent recycling and fuel blending; used
oil re-refining; and recycling and management of silver-bearing wastes from
imaging activities.

Safety-Kleen has an extensive transportation and collection facility network to
support these operations. Customers' waste is generally managed through one
of our approximately 180 accumulation/collection facilities and then forwarded
to a recycle facility. Larger bulk shipments are transported directly to a recycle
facility. Safety-Kleen recycles and reuses the vast majority of the wastes
handled. However, as with all recovery processes, some residuals and off-
specification materials are generated that must be sent to third party treatment
and disposal facilities.

Safety-Kleen does not operate any land disposal facilities, hazardous waste
surface impoundments, or underground injection wells. However, because
Safety-Kleen handles waste from thousands of generators, we are affected by
every change in the Land Disposal Restrictions (LDR).  Therefore, we provide
the attached comments on the Phase IV LDR regulations. In addition, we refer
the Agency back to our May  1, 1995 comments on the Phase III LDR proposed
regulation, submitted to Docket F-95-PH3P-FFFFF.

Safety-Kleen appreciates the opportunity to comment on the proposed Phase IV
LDR regulation. We understand that EPA is striving to improve the LDR rule,
and hope that our comments  will assist EPA in developing both the Phase III
and Phase IV LDR regulations.

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       1.   Safety-Kleen encourages the Agency to address the Phase III
       and Phase IV LDR rulemakings concurrently, with a common
       promulgation and implementation schedule. EPA has acknowledged
       that it did not have time to review the comments submitted on
       the Phase III LDR proposal prior to publication of the Phase IV
       LDR notice of proposed rulemaking. Safety-Kleen believes that
       the comments submitted on the Phase III proposal will strongly
       influence the Agency's actions and decisions on this Phase IV
       proposal. Safety-Kleen agrees with the Agency's statement that
       "[djecisions on controlling releases will be made after careful
       consideration of public comments on both proposals (60 FR
       43655/2)." Furthermore, Safety-Kleen believes that careful
       evaluation of the Phase IV comments will enhance the Phase III
       rulemaking. Clearly, the Phase III and Phase IV rules affect
       highly similar facilities and are "sister" regulations. However,
       the currently anticipated promulgation schedules differ by
       several months, which will result in staggered implementation
       deadlines. This may cause confusion in the regulated community
       (e.g., which rule applies at which time), and may result in
       additional and unnecessary burdens (e.g., the cost and training
       requirements for changing the content and format of the LDR
       notification form multiple times within a year).  Safety-Kleen
       encourages the Agency to promulgate the Phase III and Phase IV
       regulations simultaneously, in order to simplify the
       implementation process for the state  agencies and the regulated
       community, and to enhance facility compliance.

RESPONSE

       Events subsequent to the submission of this comment make the commenter's remarks
moot. Both the Phase III and Phase IV rule concerned the  issue of equivalent treatment for
decharacterized wastes in surface impoundments regulated by the Clean Water Act. The Phase
III rule set treatment standards for these wastes.  The August 22, 1995 Phase IV proposal
discussed  options for ensuring that underlying hazardous constituents in decharacterized wastes
were not released to the environment via leaks, sludges, and air emissions from surface
impoundments. On March 16, 1996, the President signed the Land Disposal Program
Flexibility Act of 1996, which provides that the wastes in question are no longer prohibited
from land  disposal once rendered nonhazardous. As a result, on April 8,1996, EPA withdrew
its treatment standards for these wastes (61 FR 15660).  Today's Phase IV final rule will not
promulgate provisions for managing leaks, sludges, and air emissions from surface   .
impoundments.
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DCN     PH4P070
COMMENTER  Doe Run Resources Corp.
RESPONDER  SS
SUBJECT   MISC
SUBJNUM   070
COMMENT

The Doe Run Resources Corporation ("Doe Run") submits the following comments on the
proposed rulemaking issued by the United States Environmental Protection Agency ("EPA" or
the "Agency") regarding "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," Docket No. F-95-PH4P-FFFFF, 60 Fed. Reg. 43654
(August 22, 1995) ("Proposed Rule").

       Doe Run is a producer of lead, zinc, and copper concentrates, and produces lead
       metal from the lead concentrate. The company also operates a secondary lead
       smelter and produces secondary lead from batteries, lead scrap, crosses and
       residues, as well as "hazardous waste" containing lead and other contaminants.
       Doe Run has a Part B permit issued under the Resource Conservation and
       Recovery Act of 1976, as amended, § §  6901 et seg. ("RCRA"), and the
       Missouri Hazardous Waste Management Law, for storage and treatment of
       hazardous waste at its Buick Resource Recycling Facility in Iron County,
       Missouri. In the near future, Doe Run intends to initiate further storage of
       contaminated media (soils) for treatment of those soils through a soil washing
       and leaching procedure utilizing the technology of its business partner, Cognis,
       Incorporated ("Cognis").

       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 (i.e., 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.

       Introduction

      Doe Run is primarily concerned with EPA's proposal under RCRA to
       replace existing Toxicity Characteristic Leaching Procedure
       ("TCLP") treatment standards for land disposal of toxic
       characteristic ("TC") metal wastes, with  Universal Treatment

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 Standards ("UTS"). In particular, Doe Run is interested in the
 Proposed Rule's potential effect on the secondary processing of
 metals-contaminated media. These activities should be encouraged
 and, to the maximum extent possible, facilitated by this and other
 similar rulemakings (e.g., the hazardous Waste Identification Rule
 relating to contaminated media ("HWIR-Media")).

 It is Doe Run's understanding that the HWIR-Media will allow for
 a concentration-based standard to supersede the TCP standard. If so
 promulgated, the concerns of Doe Run will be allayed with regard to
 this particular issue. Consequently, it is Doe Run's recommendation
 that the final Phase IV LDR requirements and the HWIR-Media
 be reviewed and promulgated contemporaneously such that the two
 rules become effective at the same time. Otherwise, it is certainly
 possible that any interim period between separate promulgation of
 the individual rules could disrupt the beneficial implementation
 and operation of Doe Run's soil washing and leaching process. In
 order to protect itself against the possibility of the Phase IV LDR
 Rule being promulgated without the HWIR-Media or the HWIR-Media
 being promulgated but effectively challenged, Doe Run makes the
 following comments  regarding the authority and the scientific and
 technological justification for the Phase IV LDR standards....

 Furthermore,  the D.C. Circuit has noted that EPA has "authority to
 bar land disposal of wastes unless they have been treated to reduce
 risks beyond [what may be] presented by the characteristics
 themselves."  CWM Decision, 976 F.2d at 14. EPA has not offered
 any evidence  demonstrating that the utilization of UTS as LDR
 treatment standards, versus use of TCP levels, is necessary to
 reduce risks to this extent or to protect human health and
 the environment. EPA has even acknowledged that constituent levels
 below TCP do not pose a substantial  threat or potential hazard to
 human health and the environment. See 55 Fed. Reg. 11798,11805
 (March 29, 1990). Moreover, EPA has noted that the utilization of
 such regulatory thresholds in the implementation of the
 characteristic  approach avoids"over-inclusiveness," and "reducfes]
the potential of wastes that do not, in fact, present a threat."
 Id. at 11805-06. The utilization of UTS as LDR treatment standard"
 for TO metal wastes undermines a primary purpose of the
 characteristic  approach. In essence, it creates precisely the type
 of over-regulation that EPA originally intended to avoid.
 When EPA initially promulgated the  TCP levels, EPA designated
those levels as the regulatory thresholds at which the Agency

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      considered the waste to be "non-hazardous." EPA determined that
      waste with constituent levels above TCP should be identified as
      "hazardous/'because EPA found those wastes to present a
      significant risk to human health and the environment. See 40 C.F.R.
      § 261.20, et seq. (and related regulatory preambles). Thus,
      in developing these TCP levels, EPA made the intrinsic
      determination that they adequately protect human health and the
      environment. See generally 55 Fed. Reg. 11798 (March 29,1990).

EPA should make clear the relationship between the Phase IV LDR requirements and the
HWIR - Media

Doe Run considers the Phase IV LDR rulemaking to be especially
      significant given the forthcoming HWIR-Media, which is expected to
      be proposed in December 1995. Thus far, EPA has not expressly
      clarified the relationship between the Phase IV LDR
      requirements and the HWIR-Media. As Doe Run understands the
      relationship, the Phase IV LDR requirements will apply to land
      disposal of "as-generated" manufacturing waste, while
      the HWIR-Media will govern disposal of remediation waste, such as
      remediation soils generated and addressed under the Comprehensive
      Environmental Response, Compensation, and Liability Act of 1980, as
      amended,  §§ 9601 et sec. ("CERCLA). In circumstances in which both
      the Phase IV LDR requirements and the HWIR-Media may apply to
      contaminated media, the HWIR-Media will and should take precedence.

A portion of Doe Run's Buick operations involves secondary
      processing and extraction of metals from CERCLA remediation soils.
      This type of legitimate recycling and beneficial recovery should be
      encouraged by EPA. Doe Run is concerned that unless EPA
      clearly defines the scope of the Phase IV LDR requirements and the
      HWIR-Media as they may or may not apply to contaminated media, such
      recovery and recycling processes will be detrimentally affected by
      over-aggressive and unnecessary application of stringent Phase
      IV LDR requirements. Thus, Doe Run strongly encourages EPA to
      clarify the relationship between the Phase IV LDR requirements and
      the HWIR-Media, and to do so in a manner favorable to continued
      utilization of beneficial and evolving soil washing techniques
      and processes.
      Also, because this Phase IV LDR rulemaking has been published
      prior to the proposed HWIR-Media Rule, Doe Run is unable to analyze
      fully the potential implications that the Phase IV LDR requirements
      may have on its secondary processing operations. Doe

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       Run, therefore, reserves the right to comment further on the Phase
       IV LDR requirements as they may relate to the disposal of
       contaminated media, and will submit such comments with its comments
       on the forthcoming HWIR-Media Rule.

RESPONSE

       The commenter expresses concern that the UTS levels are below what is necessary to
prevent risk.
       The Toxicity Characteristic levels are the levels above which constituents are clearly
hazardous, not the levels at which threats from the constituents are minimized. See 55 FR at
22652 (June 1, 1990); 51 FR at 21648 (June 13, 1986); 55 FR 11798 (March 29, 1990). The
commenter thus is mistaken as to, and in fact mischaracterises the Agency's findings regarding
the TC. See 55 FR at 22651 (June 1,1990). EPA finds, for purposes of this rule, that none of
the treatment standards are established below levels at which threats to human health and the
environment are minimized.  This finding stems from the Agency's inability at the present time
to establish concentration levels for hazardous constituents which represent levels at which
threats to human health and the environment are minimized. Unless the Agency determines
nationally applicable risk-based concentration levels that achieve the "minimized threat"
requirement for a particular wastestream, the Agency believes that BDAT treatment (as
reflected by the UTS levels) fulfills the statutory charge. Technology-based standards have
been upheld as a permissible means of implementing RCRA 3004(m) (see Hazardous Waste
Treatment Council v. EPA, 886 F.2d 345 D.C. Cir. 1989, cert, denied 11 IS. Ct 139 (1990).
The approach of setting standards below the characteristic level was upheld in Chemical Waste
Management v. EPA (976F.2d2),

       The commenter urged EPA to promulgate the HWIR-media provisions for
contaminated  soil and the Phase IV requirements contemporaneously. EPA is doing exactly
that in the Phase IV final rule.
DCN     PH4P091
COMMENTER  FMC
RESPONDER  SS
SUBJECT   MISC
SUBJNUM  091
COMMENT
      FMC Corporation would like to take this opportunity to comment on the
      proposed rule "Land Disposal Restrictions - Phase IV:  Issues Associated with
      Clean Water Act Treatment Equivalency, and Treatment Standards for Wood
      Preserving Wastes and Toxicity Metal Wastes" [EPA #530-Z-95-011,
      FRL-5280-6] as published in the August 22, 1995 Federal Register (60 FR
      43654, et. seq.). FMC is submitting an original and two copies of its comments

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along with this cover letter. In addition, pursuant to EPA's request, FMC is also
submitting one additional copy of the comments on a computer diskette in
ASCII (Text) format; the comments are in file PHASEIV.TXT.
FMC Corporation is a multinational company with businesses in agricultural
chemicals, chemicals and specialized chemical products, defense products, gold
mining, food and specialized machinery and petroleum equipment. FMC
Corporation had 1994 sales of approximately $4 billion. FMC operates
manufacturing and other facilities in 26 states within the United States. FMC is
a major developer, manufacturer, formulator, distributor and dealer of
carbarmate chemicals. As proposed, this regulation may directly impact eight
FMC owned facilities, along with numerous other privately owned dealers and
distributors of FMC agricultural chemicals.
FMC Corporation is a member of the Chemical Manufacturers Association
(CMA)  and supports and endorses the comments being submitted by that
organization on this rulemaking.  FMC would be happy to meet with you, at
your convenience, to discuss the attached comments.

III. The Agency Should Finalize HWIR Before the LDR phase III, IV and IV
Supplemental Rules Become Effective,  and Should Promulgate the Phase III
and IV Rules with a Common Effective Date.

EPA has proposed, or will soon propose, four separate RCRA Subtitle C
hazardous waste regulations that are closely interrelated. Indeed, these four
regulations are so closely interrelated that if they are not promulgated in the
proper order, significant compliance problems and confusion will result. The
four rules are the Phase III and Phase IV LDR rules, already proposed, the
upcoming Phase IV Supplemental proposal (mining wastes) and the recently
signed but not published HWIR process waste rulemaking.

In Phase III, EPA proposed that the LDR treatment standard for formerly
characteristic wastes managed in CWA  or CWA-equivalent surface
impoundments should be a requirement for satisfaction of the system's NPDES
standards at its end-of-pipe compliance  point for constituents addressed in the
permit,  and should meet Universal Treatment Standards (UTS) at the same
compliance point for constituents not addressed in the NPDES permit. 715
In Phase IV, EPA is considering whether to impose additional requirements on
the same surface impoundments addressed in Phase m, with respect to potential
leaks, air emissions, and sludges. II6  In the Phase IV supplemental rule (not yet
proposed), EPA will address LDRs for mineral processing wastes. Finally, in
the HWIR rule, EPA will establish risk-based concentration levels for many
hazardous constituents,  below which levels wastes will no longer be subject to
regulation as hazardous wastes, including the LDRs.
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FMC believes that if these rules are promulgated without regard to
interrelationships, the resulting disruption of the regulated community will be
severe, and unnecessary. As explained in detail below, the HWIR rule could
make significant changes in the LDR program, nullifying the substantial capital
expenditures that will be necessary to comply with Phase m and IV regulations.
Similar unnecessary expenditures will result if EPA makes the Phase m rule
effective earlier than the Phase IV rule because the choices EPA makes in the
final Phase IV rule will often determine the most cost-effective way to comply
with the LDR requirements. Thus, EPA should establish a single effective date
for the Phase m and Phase IV rules, which should be after the HWIR rule is
finalized. The Agency possesses ample authority to take such steps.
/15 60 Fed. Reg. 11702,3/2/95
/16 60 Fed. Reg. 43654

a. EPA Should Not Set an Effective Date for LDR Phases m. IV or IV
Supplemental Until After the HWIR Regulations are Finalized.

FMC strongly believes that EPA should not establish effective dates for any
additional LDR regulations until after the HWIR regulation is finalized,
especially if EPA chooses Option 2 or Option 3 in Phase IV.

If the final HWIR rules resemble the versions that EPA has been discussing, it
will have a significant effect on the LDR program and will render significant
Parts of the upcoming LDR rules moot.

EPA has long recognized that the existing Subtitle C regulations are overly
broad, covering many wastes that present no significant threat to human health
or the environment. The regulated industry has been seeking a correction to this
over-inclusiveness for years. Ill The HWIR regulation is the first real attempt
by the Agency to address this problem. Since the changes brought about by
HWIR may occur in a matter of months, it makes no sense to go forward with
complex LDR rules at this time. To the extent EPA's schedule is dictated by
court orders, EPA should take steps to have those orders modified. /18 First, it is
clear that significant disruptions to regulated industry could result if the Phase
III and IV regulations are made effective before the HWIR rule is finalized. The
Phase III and IV regulations will cause the expenditure of vast sums to replace
or modify existing CWA treatment systems in order to meet the Phase III
end-of-pipe treatment standards and potential Phase IV technical requirements
for impoundments. Many of these expenditures could be in vain if the HWIR
rule sets exit levels above the current UTS levels  (particularly if the HWIR
levels can be met before placement in surface impoundments). /19 Because the
HWIR levels will be risk-based, modifications to CWA systems to achieve more
stringent standards will be wasteful by definition, because they will not be

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necessary to address any environmental risk.

[Ill Indeed, the HWIR regulation is, in part, a response to a petition for
rulemaking that was submitted to EPA in 1987. 718  The settlement in ETC that
led to this rulemaking would allow EPA to take final action to select Option 1 of
Phase IV, while continuing to  consider whether further requirements should be
imposed at a later date.  719  This analysis assumes that EPA will provide that
risk-based HWIR "exit levels" will supersede any lower, technology-based LDR
numerical treatment standards. ]

Indeed, the "exit" levels chosen under HWIR could determine the most
cost-effective method of achieving the LDR treatment standard (which
presumably will be, in many cases, the same as the exit level). If the exit level is
different from the prior LDR treatment standard, the most effective treatment
method could be different as well. If companies have already modified their
treatment processes to achieve the lower level,  the result is, again, needless
expenditures and efforts. It  should also be added that the HWIR rule may bring
about a significant realignment of CWA systems at many facilities, because of
the new possibility that formerly listed wastes could be treated to the exit levels
and then managed in CWA surface impoundments, which at present is not
possible because of the derived-from rule. This could result in expansion or
modification of many CWA systems to manage these formerly hazardous
wastes. It would be very inefficient for companies to make several
modifications to their CWA systems within a matter of months.
There would be similar disruptions if the Phase IV supplemental LDR rule were
to be made effective before the HWIR rule is finalized. Assuming that EPA will
decide that wastes exiting the hazardous waste  system under HWIR are no
longer subject to the LDR, companies may decide, based on the Phase IV
supplemental rule, to treat mineral processing wastes to meet LDRs (possibly
including capital investment for new or modified treatment systems), only to
discover later that under HWIR, some or all of their mineral processing wastes,
if treated or managed in a particular manner, are no longer considered hazardous
and do not require treatment under the LDR. As with the disruptions discussed
above, this could impose substantial needless costs on the mining industry.

In addition to the capital costs described above, if EPA sets effective dates for
LDR Phases III, IV and IV supplemental before the HWIR rule is finalized,
many companies, including  FMC, will be forced to apply for case-by-case
capacity variances and extensions in order to comply with the new
requirements. The preparation of such applications is costly in both money and
time. All of those costs could be wasted if the HWIR significantly changes the
universe of wastes subject to LDR requirements, or significantly changes the
applicable LDR treatment standards. The money and personnel time that would

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       be so wasted could more effectively be used for waste minimization and
       pollution control efforts ~ efforts that could have a real impact on risks, as
       opposed to efforts to meet standards that may soon disappear because they are
       not necessary to address real risks.

       Finally, FMC's comments and plans regarding leaks from CWA surface
       impoundments are predicated on the current UTS levels. Significant changes in
       these levels will result in a major disruption within the regulated community.
       FMC believes that EPA should at the least delay Phase IV (if Option 2 is chosen
       and leak controls are imposed) until after promulgation of HWIR in order to
       allow time to  evaluate the impact level of the revised UTS standards. In
       addition,  FMC believes it would be more prudent of EPA to extend the Phase
       IV comment period with respect to leak controls until after the HWIR levels are
       finalized. Alternatively, EPA should consider reproposing Phase IV if the
       HWIR rule makes significant changes to UTS levels. 720 [720 As explained in
       the next section, this may require reopening the Phase III rule as well. ]

       This problem  is even further exacerbated by the expected lag of the adoption of
       the HWIR rule standards by the delegated state. Because HWIR is not a HWSA
       rulemaking, the states will need to adopt the revised HWIR levels to supersede
       the existing UTS levels from the 40 CFR §268.
       In sum, HWIR should be finalized before the Phase III and Phase IV rules
       become effective, especially if EPA imposes leak control measures in Phase IV.
       Such an approach would  reduce the universe of hazardous wastes subject to the
       Phase III, IV and IV supplemental LDR rules, and avoid forcing companies to
       treat their decharacterized wastewaters or mineral processing wastes to meet
       LDR standards that will be superseded or revised only months later.

RESPONSE

       EPA agrees with the commenter on the importance of close coordination on the
decision-making  and  scheduling of the LDR rules and the Hazardous Waste Identification Rule
(HWIR) for  process wastes. Since the comment was submitted to EPA, two events have
occurred which prevent the coordination problems the commenter foresaw. First, the sections
of the Phase IV original proposal on August 22,  1995 pertaining to equivalent treatment for
decharacterized wastewaters in surface impoundments (controls of leaks, sludges, and air
emissions) were removed from this rule due to the Land Disposal Flexibility Act of 1996.  That
Act reinstated the exemption from the dilution prohibition for these wastes and required EPA
to conduct a study to determine if regulation is necessary. Second, the timetable on the HWIR
rule has been extended well beyond the required promulgation date of the Phase IV final rule,
which removes concern about implementation problems. The new treatment standards in the
Phase IV final rule will go into effect well before the complex work on the HWIR rule is
complete. The HWIR provisions are being developed in conjunction with the

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Land Disposal Restrictions rules.
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DCN               PH4P096
COMMENTER      INMETCO
RESPONDER       AC
SUBJECT   NICK
SUBJNUM         096
COMMENT
      To further illustrate the problem of measuring compliance with UTS
      limits on the basis of grab samples, INMETCO collected random grab
      samples of its slag (every 20th slag tap) during the months of
      September and October 1995 and analyzed them for TCLP levels of
      various metals. The analytical results for nickel and selenium are
      presented in Table 1 below.

      Table 1 Random Grab Sample TCLP Results (in mg/L)for INMETCO's
      Slag: September and October 1995
      DATA ARE NOT REPRODUCED HERE

      Using EPA's methodology, we calculated the mean and standard
      deviation of the logtransformed data for the nickel and selenium
      values shown in Table 1 and applied EPA's BDAT formula to derive
      the appropriate treatment standard level (i.e., the C99 value below
      which 99 percent of the TCLP performance results are estimated to
      fall). For these random grab sample data, the BDAT/UTS treatment
      standard value for nickel would be 7.1 mg/1, while for selenium it
      would be 0.20 mg/1. These values are higher than the comparable
      UTS limits of 5.0 mg/1 for nickel and 0.16 mg/1 for
      selenium. The values included in Table 1 above reflect random grab
      sampling results.  INMETCO's experience  suggests that slags having
      the highest total chromium composition tend to exhibit somewhat
      higher TCLP levels of various metals. Table 2 below shows the
      nickel and selenium TCLP grab sample results for the four highest
      chromium composition slags produced during each of the months of
      September and October 1995. When the data in Table 1 are expanded
      to include the data from Table 2, the calculated treatment standard
      levels (i.e., the C99 values below which 99 percent of the TCLP
      performance results are estimated to fall) are found to be even
      higher.

      Table 2 Grab Sample TCLP Results (in mg/L) for the Four Highest
      Total Chromium Composition Slags Produced at INMETCO in September
      and October 1995
      DATA ARE NOT REPRODUCED HERE
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       These data confirm what EPA discovered in the case of beryllium.
       They show that the BDAT/UTS nonwastewater limits that EPA
       calculated for metals on the basis of data that included (or, in
       some cases, consisted solely of) composite samples will not
       be consistently achievable if compliance is measured on the basis
       of grab samples. As noted above, a primary EPA objective
       in establishing the BDAT/UTS limits was to ensure that they
       are achievable by the major HTMR technologies. In light of the
       very significant environmental and other benefits that
       HTMR technologies provide, this is indeed an important objective. In
       order to ensure that it can be met, compliance with the nonwastewater UTS limits for
       metals should be determined on the basis of composite samples, not grab samples.
       Sections 268.40 and 268.48 of the regulations should be revised to reflect this point.

RESPONSE

       The Agency proposed revised treatment standards for nickel and selenium, along with
other TC metals, in the Phase IV second supplemental proposal (62 FR 26045, May 12,1997).
The Agency collected additional data form commercial stabilization and HTMR facilities
(based on grab samples) and re-calculated the BDAT standards for nickel and selenium at 13.6
mg/1 and 5.7 mg/1 respectively. These standards are less stringent than the standards proposed
in the original Phase IV rule (60 FR 43654, August 22, 1995). Furthermore, the Agency has
identified a technical error in the BDAT determination of the proposed nickel standard. In
applying the BDAT methodology for calculating the treatment standard, EPA failed to perform
a "Z-score" outlier test. The Agency corrected this error and re-calculated the nickel treatment
standard and is promulgating the UTS for nickel at 11.0 mg/1 TCLP. Although this standard is
more stringent than the proposed standard,  based on the treatment performance data reviewed,
the Agency believes that this new standard is also achievable by commercial treatment
technologies such as stabilization and HTMR. Based on the commenter's calculated treatment
standard of 7.1 mg/L TCLP for nickel, the data is well within the promulgated standard of 11.0
mg/L TCLP for nickel nonwastewaters.

       With respect to the comment on grab vs. composite sampling, the Agency prefers that
compliance with LDR standards for nonwastewaters be based on grab samples (a one-time
sample taken from any part of the waste), rather than composite samples (a combination of
samples collected at various locations for a given waste, or samples collected over time from
that waste). The Agency believes that grab samples generally reflect maximum process
variability, and thus would reasonably characterize the range of treatment system performance,
and also best assure that all of the waste will be treated to minimize threats, not just certain
"representative" parts of the waste. (See discussion on this issue at 54 FR 26605, June 23,
1989 and 55 FR 22539, June 1, 1990). The grab sampling thus meets the ultimate objective of
the LDR program, that all of the hazardous waste to be land disposed be treated in a way  that
minimizes the threats that land disposal could pose, not just the average portion of the waste to

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be so treated (a possible result of composite sampling). In addition, since grab sampling is
based on individual sampling events, it facilitates enforcement proceedings for EPA and
authorized states.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
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DCN               PH4P027
COMMENTER      Rollins Environmental
RESPONDER       JL
SUBJECT    SELE
SUBJNUM         027
COMMENT
       For the most part RES supports the proposed treatment standards
       for TC metal wastes. The majority of these standards are achievable
       through utilization of sound operating practices. We are concerned,
       however, about the proposed treatment standard for nonwastewater
       Selenium (Se, DO 10).
       EPA is proposing a treatment standard of 0.16 mg/1 TCLP for DO 10
       wastes. We feel this standard is not routinely achievable utilizing
       best operating practices. We recommend the Agency keep
       the treatment standard for DO 10 at 1.0 mg/1 TCLP.
       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.

       Due to the different pH/solubility curves for Se and the other
       characteristic metals, the treatment standard for Se should remain
       at 1.0 mg/1 TCLP.

RESPONSE

       The Agency recognizes the difficulties in treating mixed metal wastes due to the
difference in pH/solubility curves for different metals. The Agency carefully reviewed the data
on selenium, and in the supplemental proposed rule (62 FR 26045, May 12, 1997), the Agency
amended the proposal to change the UTS for selenium to 5.7 mg/L TCLP and retain the current
treatment standard of 5.7 mg/L TCLP for D010 waste. Thus, creating a uniform standard of
5.7 mg/L for nonwastewater forms of selenium. The Agency further believes that a well
operated stabilization system can be optimized to account for the differences in metal
solubilities and meet the UTS for different metals.

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DCN              PH4P045
COMMENTER     Battery Council International
RESPONDER      JL
SUBJECT          SELE
SUBJNUM         045
COMMENT
       In lieu of the proposed universal treatment standard (UTS) level,
       BCI believes that the D008 and DO 10 treatment standards should be
       maintained at the current levels and measured by the
       toxicity characteristic leaching procedure (TCLP), as originally
       established in EPA's 1990 Land Disposal Restrictions Rule for Third
       Scheduled Wastes, 55 Fed. Reg. 22520 (June 1, 1990).

RESPONSE

       In the supplemental proposed rule (62 FR 26045, May 12, 1997), the Agency amended
the proposal to change the UTS for selenium to 5.7 mg/L TCLP and retain the current
treatment standard of 5.7 mg/L TCLP for DO 10 waste. Thus, creating a uniform standard of 5.7
mg/L for nonwastewater forms of selenium. In the same supplemental proposed rule, the
Agency re-proposed a lead (D008) nonwastewaters UTS of 0.75 mg/1 TCLP. The Agency
believes that these  standards are achievable through commercially available stabilization
technologies for a wide variety of waste matrices (see the BOAT Background Document for
additional information on the revised standards).  The Agency also would like to note that if a
particular waste possesses unique properties making it more difficult to treat than the waste on
which the standards are based, the affected party may petition the Agency for a treatability
variance as per 40 CFR 268.44 on a case-by-case basis.

DCN              PH4P045
COMMENTER     Battery Council International
RESPONDER      PAL
SUBJECT    SELE
SUBJNUM         045
COMMENT
       EPA has failed to follow its own BOAT principles in setting
       treatment standards for lead and selenium. Its selection of High
       Temperature Metals Recovery (HTMR) and stabilization technologies
       as BOAT for D008 nonwastewaters is without merit.

       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

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       expensive process that has not been built into any of the lead
       battery industry's operations.6 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 BDAT principles.

RESPONSE

       The Agency disagrees with the commenter that the selection of stabilization and HTMR
technologies as BDAT is without merit. EPA notes that the Horsehead Resource Development
Company's HTMR facility is a commercially operated facility and accepts TC metals for the
purpose of metal recovery. The Agency also recognizes that certain wastes (e.g., wastes with
unrecoverable amounts of metals) may not be accepted by HTMR facilities. The Agency notes
that the generator is not required to use HTMR to treat the waste. Any appropriate treatment
technology can be used to treat the waste to the UTS.  The Agency is promulgating a
concentration-based treatment standard rather than requiring a specific technology.  For
example, if HTMR is not available or best suited for D008 waste, then the generator can treat
the waste using stabilization or any other appropriate treatment technology. The Agency
reviewed treatment performance data and calculated treatment standards for both HTMR and
stabilization.  The Agency compared the treatment standards developed based on stabilization
and HTMR and selected the highest (less stringent) standard for each metal to establish the
proposed UTS, thus allowing for maximum process variability and detection limit difficulties.

       Furthermore, based on review of additional treatment performance data, the Agency re-
proposed a UTS of 5.7 mg/1 TCLP for selenium (DO 10) and a UTS  of 0.75 mg/1 TCLP for lead
(D008) in the second supplemental proposed rule (62  FR 26045, May 12, 1997). The Agency
believes that the proposed UTS levels are achievable through commercially available
stabilization and HTMR technologies. The Agency also would like  to note that if a particular
waste possesses unique properties making it more difficult to treat than the waste on which the
standards are based, the affected party may petition the Agency for a treatability variance as per
40 CFR 268.44 on a case-by-case basis.

DCN               PH4P045
COMMENTER      Battery Council International
RESPONDER       JL
SUBJECT    SELE
SUBJNUM         045
COMMENT
       11  Other metals, such as cadmium and selenium, also have unique
       analytical problems in the high TDS matrices at  very low
       concentrations. In the proposed LDR Phase IV, both cadmium and
       selenium are proposed at concentrations that are almost an order
       of magnitude below the current limit. The proposed TCLP

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      concentrations for these metals thus is likely to fall outside the
      PQL for analytical methods currently in use.

RESPONSE

      The Agency notes that the high Total Dissolved Solids (TDS) may interfere in the
determination methods during the analysis of wastewaters because of viscosity and chemical
differences between the standard and the sample. However, this interference may be
compensated for, by using dilution, matrix matching, and/or the method of standard additions.
The Agency believes that the commenter is in error regarding proposed treatment levels and the
levels to which cadmium and selenium may be accurately measured in a TCLP extract.  The
cadmium and selenium standards of 0.11 and 5.7 mg/1 TCLP are over 1,000 times the detection
limits of available determinative methods employing FLAA, GFAA, or ICPMS.
DCN               PH4P077
COMMENTER      American Foundryman's Soc
RESPONDER       JL
SUBJECT   SELE
SUBJNUM         077
COMMENT
   II. UTS FOR THE TC METAL WASTES OF CHROMIUM, CADMIUM, LEAD, AND
  SELENIUM SHOULD BE BASED ON STABILIZATION TECHNOLOGIES BECAUSE
  STABILIZATION TECHNOLOGIES ARE BOAT FOR FOUNDRY WASTES
      A.  Because Stabilization is the Only Commercially "Available"
      Technology For Foundry Wastes, Stabilization Technologies Should Be
      Used as the Basis For Determining the UTS For Lead, Cadmium,
      Selenium, and Chromium

      As indicated above, HTMR is not commercially available for
      treatment of FOUNDRY WASTES. However, certain stabilization
      technologies are commercially available for FOUNDRY WASTES.
      Although the database of stabilization treatment results for
      foundry wastes presented in the rulemaking record is not
      comprehensive, (See Proposed BOAT Background Document for TC Metal
      Wastes D004-D011 (July 26, 1995), at A-16 to A-27), only
      stabilization technologies are demonstrated to effectively treat
      foundry wastes. Stabilization technologies are also the only
      practical technology for foundry wastes that meet the statutory
      requirement to "substantially reduce the likelihood of migration of
      hazardous constituents from the waste so that short-term and
      long-term threats to human health and the environment are

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       minimized."RCRA § 3004(m), 42 U.S.C. § 6924(m). Therefore, the
       results from commercially-available stabilization technologies
       applied to foundry wastes should be used to establish the UTS for
       TC metal wastes. However, the Agency should only use reasonable
       stabilization technologies that do not require the addition of
       excessive amounts of stabilizing material in determining treatment
       standards for TC metal wastes.

RESPONSE

       The Agency agrees with the commenter that HTMR may not be the best technology for
all TC metal wastes. For the same reason, the Agency is establishing a concentration-based
standard rather than requiring a specific technology. The generators can select any appropriate
treatment technology that will treat the waste to  the UTS.  EPA recognizes that all waste
streams are not the same and that the characteristics of the same waste stream can vary over
time. The determination of treatment standards  based on the BDAT methodology accounts for
such variability by applying (1) accuracy correction factor - to account for any analytical
interferences associated with the chemical make-up of the samples; and (2) variability factor -
to correct for normal variations in the performance of a particular technology over time.

       The Agency had inadequate data on foundry sands prior to the second supplemental
Phase IV proposal, and the commenters failed to submit BDAT quality performance data in
response to EPA's request.  Therefore, to base the treatment standards on representative data,
the Agency conducted site visits to commercial hazardous waste treatment facilities and
collected additional stabilization treatment performance data that better characterized the
diversity of metal wastes. These stabilization performance data (based  on grab samples)
represented a wide range of metal-bearing wastes (both listed and characteristic), including
metal manufacturing and foundry wastes. Many of these wastes were particularly difficult to
treat due to high total and leachable levels of metals, pH variations, and the presence of
multiple hazardous metal  constituents. Treatment of these wastes was  conducted using
conventional stabilization techniques with appropriate ratios of waste to stabilizing agent.  See
the information contained in the Second Supplemental docket in support of the proposed metal
treatment standards, e.g., (S0022 - Review of Site Visit Report to Rollins Highway 36, Deer
Trail, Colorado and Data Submittals. December 19,1996). Based on the information available
to the Agency, excessive amounts of reagent would be needed to meet the treatment standards.

       In addition, the Agency also determined  the treatment standards for TC metals based on
performance data obtained from a HTMR facility (grab sample data). The Agency compared
the treatment standards developed based on stabilization and HTMR and selected the highest
(less stringent) standard for each metal to establish the proposed UTS, thus, allowing for
maximum process variability and detection limit difficulties.  Therefore, the Agency believes
that the UTS promulgated in today's  rule for TC metals represent standards achievable through
commercially available stabilization and HTMR technologies.

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      The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
DCN               PH4P096
COMMENTER      INMETCO
RESPONDER       JL
SUBJECT    SELE
SUBJNUM         096
COMMENT
      To further illustrate the problem of measuring compliance with UTS
      limits on the basis of grab samples, INMETCO collected random grab
      samples of its slag (every 20th slag tap) during the months of
      September and October 1995 and analyzed them for TCLP levels of
      various metals. The analytical results for nickel and selenium are
      presented in Table 1 below.

      Table 1 - Random Grab Sample TCLP Results (in mg/L)for INMETCO's
      Slag: September and October 1995
      DATA ARE NOT REPRODUCED HERE
      For these random grab sample data, the BDAT/UTS treatment
      standard value for nickel would be 7.1 mg/1, while for selenium it
      would be 0.20 mg/1. These values are higher than the comparable
      UTS limits of 5.0 mg/1 for nickel and 0.16 mg/1 for
      selenium. The values included in Table 1 above reflect random grab
      sampling results.  INMETCO's experience suggests that slags having
      the highest total chromium composition tend to exhibit somewhat
      higher TCLP levels of various metals.  Table 2 below shows the
      nickel and selenium TCLP grab sample results for the four highest
      chromium composition slags produced during each of the months of
      September and October 1995. When the data in Table 1 are expanded
      to include the data from Table 2, the calculated treatment standard
      levels (i.e., the C99 values below which 99 percent of the TCLP
      performance results are estimated to  fall) are found to be even
      higher.

      Table 2 Grab Sample TCLP Results (in mg/L) for the Four Highest
      Total Chromium Composition Slags Produced at INMETCO in September
      and October 1995

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       DATA ARE NOT REPRODUCED HERE

       These data confirm what EPA discovered in the case of beryllium.
       They show that the BDAT/UTS nonwastewater limits that EPA
       calculated for metals on the basis of data that included (or, in
       some cases, consisted solely of) composite samples will not
       be consistently achievable if compliance is measured on the basis
       of grab samples.  As noted above, a primary EPA objective
       in establishing the BDAT/UTS limits was to ensure that they
       are achievable by the major HTMR technologies. In light of the
       very significant environmental and other benefits that
       HTMR technologies provide, this is indeed an important objective. In
       order to ensure that it can be met, compliance with
       the nonwastewater UTS limits for metals should be determined on
       the basis of composite samples, not grab samples.  Sections
       268.40 and 268.48 of the regulations should be revised to reflect
       this point.

RESPONSE

       The Agency proposed revised treatment standards for nickel and selenium, along with
other TC metals, in the Phase IV second supplemental proposal (62 FR 26045, May 12, 1997).
The Agency collected additional data form commercial stabilization and HTMR facilities
(based on grab samples) and re-calculated the BOAT standards for nickel and selenium at 13.6
mg/1 and 5.7 mg/1 respectively. These standards are less stringent than the standards proposed
in the original Phase IV rule (60 FR 43654, August 22, 1995). Furthermore, the Agency has
identified a technical error in the BOAT determination of the proposed nickel standard. In
applying the BOAT methodology for calculating the treatment standard, EPA failed to perform
a "Z-score" outlier test.  The Agency corrected this error and re-calculated the nickel treatment
standard and is promulgating the UTS for nickel at 11.0 mg/1 TCLP. Although this standard is
more stringent than the proposed standard, based on the treatment performance data reviewed,
the Agency believes that this new standard is also achievable by commercial treatment
technologies such as stabilization and HTMR.  For selenium, in today's rule, the Agency is
promulgating a treatment standard of 5.7 mg/L TCLP as proposed. With regard to selenium,
all the data available to the Agency on selenium treatment, with the exception of Waste
Management, Inc. which is being discussed in the Second  Supplemental comment responses
for selenium, show that the standard of 5.7 mg/L TCLP  can be achieved for selenium
nonwastewaters.

       With respect to the comment on grab vs. composite sampling, the Agency prefers that
compliance with LDR standards for nonwastewaters be based on grab samples (a one-time
sample taken from any part of the waste), rather than composite samples (a combination of
samples collected at various locations for a given waste, or samples collected over time from

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that waste).  The Agency believes that grab samples generally reflect maximum process
variability, and thus would reasonably characterize the range of treatment system performance.
(See discussion on this issue at 54 FR 26605, June 23, 1989 and 55 FR 22539, June 1, 1990).
The grab sampling also meets the ultimate objective of the LDR program, that all of the
hazardous waste to be land disposed be treated in a way that minimizes the threats that land
disposal could pose, not just the average portion of the waste to be so treated (a possible use of
composite sampling).  In addition, since grab sampling is based on individual sampling events,
it facilitates enforcement proceedings for EPA and authorized states.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
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DCN               PH4P078
COMMENTER      Battery Council International
RESPONDER       AC
SUBJECT    SLAG
SUBJNUM          078
COMMENT

       On November 20, 1995, the Battery Council International (BCI) submitted comments
on the U.S. Environmental Protection Agency's (EPA) Land Disposal Restrictions — Phase IV
proposed rule (LDR Phase IV rule), published in the August 22, 1995, Federal Register. 60
Fed. Reg. 43654. As we understand, due to the temporary federal government shutdown, EPA
has announced that the Agency will continue to consider comments submitted on this proposed
rule until November 27,1995. Accordingly, we wish to supplement our November 20th
submission with the attached materials and request that they be included in the Resource
Conservation and Recovery Act (RCRA) public docket.

       The Battery Council International (BCI) is pleased to submit the following comments
on the U.S. Environmental Protection Agency's (EPA) Land Disposal Restrictions ~ Phase IV
proposed rule (LDR Phase IV rule), published in the August 22,1995, Federal Register. 60
Fed. Reg. 43654.

       BCI urges that there is no lawful basis to lower the treatment standards for lead and
selenium, and that this issue should not be  addressed in the current rulemaking. Treatment
standards set below the characteristic levels for lead and selenium in D008 nonwastewaters are
(I) unachievable using EPA's demonstrated technology; (ii)  not necessary to protect human
health and the environment; (iii) inconsistent with previous  Agency pronouncements on the
application of the LDRs to treatment residues; (iv) contrary  to the Administration's goal of
"reinventing environmental regulation" and eliminating impediments to recycling; and,
consequently, (v) unlawful.

       In lieu of the proposed universal treatment standard (UTS) level, BCI believes that the
D008 and DO 10 treatment standards should be maintained at the current levels and measured
by the toxicity characteristic leaching procedure (TCLP), as originally established in EPA's
1990 Land Disposal Restrictions Rule for Third Scheduled Wastes, 55 Fed. Reg. 22520 (June
1, 1990). Any further Agency consideration of this issue should be made only after EPA has
promulgated the RCRA Hazardous Waste Identification Rule (HWIR).

BACKGROUND

       BCI is a non-profit trade association representing commercial entities involved in the
manufacture, distribution and sale, and reclamation of lead-acid batteries. BCI is members and
associate members include manufacturers and distributors of lead acid storage batteries for
automotive, marine, industrial, stationary, specialty, consumer and commercial uses, and

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secondary smelters that reclaim or recycle the batteries once they are spent. BCI's membership
represents more than 99 percent of the nation's domestic lead-acid battery manufacturing
capacity and more than 84 percent of the nation's lead battery recycling or secondary smelting
capacity.

SPECIFIC COMMENTS

I. THE 0.37 mg/1 FOR D008 TREATMENT STANDARD DOES NOT MEET THE BOAT
PRINCIPLES ESTABLISHED BY EPA AND UPHELD IN HAZARDOUS WASTE
TREATMENT COUNCIL v. PA

A. EPA Has Failed To Follow Its BOAT Principles

       A concentration-based treatment standard must be a performance level achievable by
application of the Best Demonstrated Available Technology (BOAT).  To identify BOAT for
treatment of a particular waste, EPA considers three factors: whether the technology is "best
demonstrated"; whether it is "available"; and whether it is the "best applicable" technology. A
treatment technology is considered to be "demonstrated" when full-scale treatment operations
are currently being used to treat that waste. To be considered "available," the technology must
not be proprietary or a patented process that cannot be purchased or licensed from the
proprietor (i.e., it must be commercially available) and must substantially diminish the toxicity
of the waste or reduce the likelihood of migration of hazardous constituents from the waste. To
be "applicable," a technology must theoretically be able to treat the waste.

       EPA has failed to follow its own BOAT principles in setting treatment standards for
lead and selenium. Its selection of High Temperature Metals Recovery (HTMR) and
stabilization technologies as BOAT for D008 nonwastewaters is without merit. 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. 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 for selenium.  RCI's data show that
stabilization treatment of lead contaminated soil can achieve, at best, a concentration level of

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4.69 mg/1 level.
RESPONSE

       The Agency disagrees with the commenter that the selection of stabilization and HTMR
technologies as BDAT is without merit.  EPA notes that the Horsehead Resource Development
Company's HTMR facility is a commercially operated facility and accepts TC metals for the
purpose of metal recovery. The Agency also recognizes that certain wastes (e.g., wastes with
unrecoverable amounts of metals) may not be accepted by HTMR facilities. The Agency notes
that the generator is not required to use HTMR to treat the waste. Any appropriate treatment
technology can be used to treat the waste to the UTS. The Agency is promulgating a
concentration-based treatment standard rather than requiring a specific technology. For
example, if HTMR is not available or best suited for D008 waste, then the generator can treat
the waste using stabilization or any other appropriate treatment technology. The Agency
reviewed treatment performance data  and calculated treatment standards for both HTMR and
stabilization. The Agency compared the treatment standards developed based on stabilization
and HTMR and selected the highest (less stringent) standard for each metal to establish the
proposed UTS, thus allowing for maximum process variability and detection limit difficulties.

       Furthermore, several commenters submitted performance data in response to the
original Phase IV proposal (60 FR 43654), and the Phase  IV NODA (61 FR 21418) on lead
slags. Based on a through review of these additional treatment performance data, the Agency
re-proposed a UTS of 5.7 mg/1 TCLP for selenium (DO 10) and a UTS of 0.75 mg/1 TCLP for
lead (D008) in the second supplemental proposed rule (62 FR 26045, May 12, 1997).  The
Agency believes that the revised UTS  levels represent the most difficult to treat wastes, and are
achievable through commercially available stabilization and HTMR technologies, and
therefore, is promulgating these UTS levels in today's rulemaking.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to treat than the waste  on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on a
case-by-case basis.
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Phase IV Comment Responses On Silver Policy

Comments on Original Proposed Phase IV Rule, August 22,1995

PH4P-00014
COMMENTER: Silver Coalition
RESPONDER: SS
SUBJECT: SLVR
COMMENT

The Silver Coalition appreciates the opportunity to provide comments on the Agency's Phase
IV Land Disposal Restrictions (LDR) proposed rule.

The Silver Coalition is a national group of trade associations, technical societies and
government agencies whose memberships are vitally affected by the environmental regulation
of silver. The purpose of the Coalition is to support scientific research on the fate, transport and
toxicity of silver in the environment, and to encourage communications and share information
between the regulatory and regulated communities, so that our common goals of pollution
prevention, recycling and compliance can be achieved in the most cost effective manner.

Over 360,000 facilities currently use silver-containing photographic materials which must be
processed to produce an image for subsequent viewing, printing, or storing. The processing of
these materials results in silver being present in the effluent. Included in these over 360,000
facilities are small businesses, educational institutions, hospitals and clinics, doctors, dentists,
veterinarians, photographers, printers, financial institutions, and microfilmers. Many federal,
state and municipal agencies such as the Department of Defense, the Veteran's Administration,
the  FBI, the EPA, the U.S. Government Printing Office, and numerous police departments also
have photographic processing facilities.

The following issues related to EPA's proposed treatment standards for toxicity characteristic
(TC) metal wastes are of particular concern to the Silver Coalition:

The current D011  silver TC waste LDR treatment level of 5 mg/1 more than adequately
minimizes threats to human health and the environment. It does not make sense to lower the
LDR standard to match the universal treatment standard (UTS) level of 0.30 mg/1 silver
(nonwastewaters) and 0.43 mg/1 silver (wastewaters).

•      EPA should hold any action to make the D011 technology based LDR treatment level
      for silver more stringent, until the Office of Solid waste has completed its current
      review of silver's inclusion on the TC list.

The regulation of silver should be consistent with the low level of toxicity from silver wastes.
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The Silver Coalition believes that toxicological and environmental fate evidence is adequate
for the removal of silver from the Toxicity Characteristic (TC) list. EPA's Office of Solid
Waste has also identified the removal of silver from the TC list as one of their projects for
regulatory reform. If EPA does not do this at this rule making, then the Universal Treatment
Level should be based on risk, using the available data and existing EPA assessments. In the
spirit of regulatory reform, EPA should not promulgate any technology based LDR treatment
levels for silver more stringent than the current D011 levels until they have reviewed their own
determination that silver does not pose a potential for adverse health or environmental effects
and therefore does not need to be listed on the TC list.

Removal of Silver from TC list

Silver was included as a DO 11 Toxicity Characteristic waste solely based on the Maximum
Contaminant Level (MCL) for silver under the Safe Drinking Water  Act. The agency stated
that,"... if EPA determines, within the scope of the Safe Drinking Water Act rulemaking, that
silver does not pose a threat to human health and the environment, the Agency will consider
proposing the deletion of silver from the list of TC constituents" (55  FR 11812, March 29,
1990.) On January 30, 1991  EPA deleted the silver MCL, because they determined"... the only
potential adverse effect from exposure to silver in drinking water is argyria (a discoloration of
the eye and skin). EPA considers argyria a cosmetic effect since it does not impair body
function." (56 FR 3573). Additionally on December 22, 1992 EPA removed silver from the
Human Health Criteria in the Water Quality Criteria Recommendations (57 FR 60910). EPA
also determined that silver does not bioaccumulate and is not a hazard to wildlife, so the Office
of Water deleted silver from Table 6-B, "Pollutants that are Bioaccumulative Chemicals of
Concern" in the Final Water Quality Guidance for the Great Lakes System. More recently, in
an August 22, 1995 letter to  Senator Christopher Bond, EPA indicated they are seeking
information to expedite their decision whether to address the issue of deleting silver from the
TC list, and to support possible future rule-making activities.

Based on these EPA conclusions,  it certainly does not make sense to increase the treatment
required before land disposal, at the same time that EPA is reviewing the need to have silver
listed as a TC waste.

Risk Based Silver LDR Standard

The current D011 Silver Toxicity Characteristic (TC) waste LDR treatment level of 5 mg/1
more than adequately minimizes threat to human health and the environment, so it does not
make sense to lower the LDR standard to match the UTS. The proposed D011 LDR treatment
standards are technology based. The application of these BOAT standards to silver goes way
beyond the point at which there could ever be a threat to human health or the environment from
any of the silver bearing wastes, the numerical standards being much lower than that at which
the wastes are currently characterized as toxic.
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Section 3004(a) of the RCRA statute directs the EPA to establish performance standards that
would be applicable to owners and operators of facilities for the treatment, storage, or disposal
of hazardous waste identified or listed under Subtitle C, in order to protect human health and
the environment. Section 3004(m)(l) of the same statute also directs the EPA to take into
consideration the reduction in toxicity of the waste, as well as a reduction in the migration
potential of the waste bound for land disposal. Both of those directives speak to a level of risk,
with treatment expected to be aimed at a level at  which the constituent would no longer pose a
significant threat to human health and the environment. In the Agency's own words, its
ultimate policy preference is to establish risk-based levels that represent minimized threat.
levels, thus capping the extent of hazardous waste treatment (55 FR 48095). However, the
Agency suggests that such an approach is "formidable and very controversial". The technical
issues include "assessing exposure pathways other than migration to ground water, taking
environmental risk into account, and developing  adequate toxicological information for the
hazardous constituents controlled by the hazardous waste program".

Rather than "formidable and very controversial", the establishment of treatment standards for
silver based on  risk would be simple and non controversial because the Agency already has the
necessary data.  There have been numerous toxicological studies performed on silver that
support the conclusion that chronic exposure to low levels of silver does not pose a hazard to
human health. Publications by the ATSDR - the ATSDR Draft Toxicological Profile; the EPA
- the U.  S. EPA Drinking Water Criteria Document for Silver, and the EPA Drinking Water
Health Advisory for Silver; and the NRC - the NRC Drinking Water and Health Document
substantiate this fact.

Other LDR Considerations

Research results, previously shared with EPA, have documented the  substantial reductions in
toxicity of silver in groundwater, surface water and sea water by complexation with natural
ligands and adsorption to particulate matter and sediments. The silver complexes that are
formed in natural waters have very low toxicity.

Additionally, EPA's own data have documented that silver is not mobile in soils and sediments,
and thus does not pose any potential for adverse environmental or health affects. Previous
submissions to EPA's Office of Solid Waste have also documented the high level of recovery
that silver-rich wastes already receive due to silver's high economic value.

Listing of silver also discourages the conservation of wash water in photo processing
operations, because reducing the washwater volume raises the concentration (but not the
amount) of silver discharged. This increase in concentration increases the likelihood that silver
will cause it to be a hazardous waste and that silver will not meet the LDR restrictions. It is
difficult to justify the necessary capital expenditures for water conservation, if it increases the
discharge concentration of silver and causes it to  become a hazardous waste.
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Recommendations

For all these reasons the appropriate agency action would be to delete silver from the TC list. If
this is not done, the Silver Coalition strongly recommends that EPA not promulgate any
technology based LDR treatment level for silver more stringent than the current D011 level,
until they have reviewed their own determination that silver does not cause adverse health or
environmental effects and therefore does not need to be listed.

RESPONSE:

       EPA has reviewed the studies that the cornmenter has submitted on the toxicity of
silver. EPA is in the process of determining whether silver should remain on the TC list at 40
CFR 261.24 (b) Table 1, or whether the current TC level should be altered.  In addition, EPA
continues its work on the Hazardous Waste Identification Rule (HWIR) to establish risk-based
exit levels for hazardous wastes.  The Agency is not yet able to establish a nationally-
applicable risk-based level for silver that fulfills the statutory charge of minimizing threats of
hazardous waste to human health and the environment.
       The process of establishing such a level is technically complex; EPA is currently
modeling the ecological and human health effects of exposure to silver through numerous
pathways.  Several issues remain unresolved concerning human health and environmental risk.
The Agency recently acquired studies indicating that silver may be connected to central
nervous system and other non-cancer effects in humans. (Rungby,  J. and G. Danscher, 1984,
Hypoactivity in silver exposed rats, Acta.  Pharmacol. Toxicol. 55: 398-401, as cited in
ATSDR, 1990; Shavlovski et al, 1995, Embryotoxicity of silver ions is diminished by
ceruloplasm—further evidence for its role in the transport of copper, Biometals; Ohbo, Y., H.
Fukuzako, K. Takeuchi, and M. Takigawa, 1996, Argyria and convulsive seizures caused by
ingestion of silver in a patient with schizophrenia, Psychiatry and Clinical Neurosciences.
50:89-90; and Wetshofen, M., and H. Schafer, 1986, Generalized argyrosis in man:
neurotological, ultrastructural, and X-ray microanalytical findings,. Arch. Otorhinolaryngol.,
243:260-264.) The draft Reference Dose for these effects have not been finalized by the
Agency for use in risk assessments. (A Reference Dose is a benchmark level for chronic
toxicity that is protective of human health.) In addition to potential adverse human health
effects, uncertainties and concerns also remain for potential adverse environmental effects.
Although EPA removed the Maximum Contaminant Level  (MCL) for silver in drinking water,
the Ambient Water Quality Criteria remain in effect due to  potential aquatic toxicity.  Further
areas of uncertainty are how silver speciates after release (i.e. which valence state of silver
would be present). The issue could be important since potential toxic effects differ depending
on the species of silver present. In short, EPA's work on understanding risks from disposal of
silver-containing hazardous wastes is ongoing, and it would be premature to establish a
treatment standard based on risk at this time.
       In the absence of such "minimize threat" levels for hazardous constituents, the Agency
establishes standards based on Best Demonstrated Available Technology (BOAT). (See full
explanation in the preamble of the Phase II Final LDR rule  at 59 FR 47986, September 19,

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 1994.) The fact that the UTS for nonwastewater forms of silver is being lowered (made more
 stringent) from the existing level of 0.30mg/L to 0.14 mg/L is due to new data on what
 treatment technology achieves.  As explained in the summary of this preamble section (Section
 III: Revised Land Disposal Restrictions for Metal Constituents in All Hazardous Wastes,
 Including Toxic Characteristic Metals), technology-based standards are the best assurance that
 threat is minimized, given the uncertainty as to the level at which threats of hazardous waste
 disposal are minimized.
       EPA expects that the new treatment standard for silver wastes will have little, if any
 impact on the regulated community. As stated by commenters, high-silver  wastes are generally
 recycled due to their economic value and are covered by the special streamlined standards for
 recyclable materials utilized for precious metal recovery at 40 CFR Part 266.70 Subpart F.
 Moreover, the Regulatory Impact Analysis for this rule estimated that the new, more stringent
 UTS levels for metal constituents, including silver, will not increase compliance costs. This is
 because the current treatment methods already achieve the new standard of 0.11 in silver
 nonwastewaters. (Achievability of the UTS for TC silver waste-waters is not an issue; EPA
 received no comments nor data on its proposal to apply the existing UTS of 0.43 mg/L.)
       Thus, the Agency is promulgating the wastewater standard of 0.43 mg/L as proposed
 and the nonwastewater standard of 0.14 mg/L. If EPA changes the status of silver on the TC
 list, EPA will revisit the treatment standards for silver wastes.
DCN: PH4P017
COMMENTER: Kodak
RESPONDER: SS
SUBJECT: SLVR.SS
SUB JN 017
COMMENT

   Eastman Kodak Company ("Kodak") is the primary U.S. manufacturer of photographic
   films, papers, chemicals, and other imaging products. Many of our products use silver
   halide technology. Along with reuse and recycling, treatment and disposal are part of our
   waste management strategy. Because the proposed Phase IV Land Disposal Restriction
   LDR regulations and their regulatory approaches may impact the treatment and disposal of
   our manufacturing waste and waste generated by our customers, we would like to make
   several recommendations which we feel will fulfill EPA's environmental objectives without
   creating unnecessary regulatory burdens.

   Kodak's key recommendation is that EPA should delay any action to make the D011
   technology based LDR treatment standard for silver more stringent, until the Office of
   Solid waste has completed its current review of silver's inclusion on the Toxicity
   Characteristic (TC) list. The current D011 silver TC waste LDR treatment standard of 5
   mg/1 adequately minimizes threats to human health and the environment. There is no

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scientific justification for lowering the LDR standard to 0.30 mg/1 silver (nonwastewaters)
and 0.43 mg/1 silver (wastewaters).  It is more appropriate to use this as an opportunity to
complete this silver TC review and remove silver from the TC list.

SILVER

The LDR Treatment Standard for Silver Should Not Be Lowered Because Silver's Low
Toxicity Warrants it's Removal from the TC List.

Kodak believes that toxicological and environmental fate evidence 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 their projects for regulatory reform.  In the spirit of
regulatory reform, EPA should not promulgate any technology based LDR treatment
standards for silver 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.

Silver was included as a DO 11 Toxicity Characteristic waste solely based on the Maximum
Contaminant Level (MCL) for silver under the Safe Drinking Water Act.  The agency
stated that,"... if EPA determines, within the scope of the Safe Drinking Water Act
rulemaking, that silver does not pose a threat to human health and the environment, the
Agency will consider proposing the deletion of silver from the list of TC constituents" (55
FR 11812, March 29, 1990.)   On January 30, 1991 EPA deleted the silver MCL, because
EPA determined  "... the only potential adverse effect from exposure to silver in drinking
water is argyria (a discoloration of the  eye and skin). EPA considers argyria a cosmetic
effect since it does not impair body function." (56 FR 3573, January 30,1991).
Additionally on December 22,  1992  EPA removed silver from the Human Health Criteria
in the Water Quality Criteria Recommendations (57 FR 60910, December 12, 1992). EPA
also determined that silver does not bioaccumulate and is not a hazard to wildlife, so the
Office of Water deleted silver from Table 6-B of "Pollutants that are Bioaccumulative
Chemicals of Concern" in the Final  Water Quality Guidance for the Great Lakes System
(60 FR 15393, March 23, 1995).  More recently, in an August 22,  1995 letter from  EPA to
Senator Christopher Bond, Michael Shapiro indicated EPA is seeking information to
expedite EPA's decision whether to delete silver from the TC list, and to support possible
future rule-making activities.

Based on these EPA conclusions, it is contradictory to increase the treatment required
before land disposal, at the same time that EPA is considering  whether silver should
continue to be a TC waste criteria.  It is more appropriate to use this as an opportunity to
complete this review and remove silver from the TC waste criteria.

The D011  Silver LDR Standard Already Minimizes Risk, So There is No Need to Reduce it
Further.

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LDR standards are designed to minimize threat. The current D011 silver Toxicity
Characteristic (TC) waste LDR treatment standard of 5 mg/1 adequately minimizes threat 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 BOAT
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.

Section 3004(a) of the RCRA statute directs the EPA to establish performance standards
that would be applicable to owners and operators of facilities for the treatment, storage, or
disposal of hazardous waste identified or listed under Subtitle C, in order to protect human
health and the environment. Section 3004(m)(l) of the statute also directs the EPA to take
into consideration the reduction in toxicity of the waste, as well as a reduction in the
migration potential of the waste bound for land disposal. Both of those directives are
aimed at a level of risk, with treatment expected to achieve a level at which the constituent
would no longer pose a significant threat to human health and the environment. The
Agency has stated that its ultimate policy preference is to establish risk-based levels that
represent minimized threat levels, thus capping the extent of hazardous waste treatment (55
FR 48095). However, the Agency suggests that such an approach is "formidable and very
controversial". The technical issues include "assessing exposure pathways other than
migration to ground water, taking environmental risk into account, and developing
adequate toxicological information for the hazardous constituents controlled by the
hazardous waste program".

Rather than being "formidable and very controversial," the establishment of treatment
standards for silver based on risk should be simple and non controversial because the
Agency already has the necessary data. There have been numerous toxicological studies
performed on silver that support the conclusion that chronic exposure to low levels of silver
does not pose a hazard to human health. Publications by the Agency for  Toxic Substances
and Disease Registry (ATSDR) - the ATSDR Draft Toxicological Profile; the EPA - the U.
S. EPA Drinking Water Criteria Document for Silver, and the EPA Drinking Water Health
Advisory for  Silver; and the National Research Council (NRC) - the NRC Drinking Water
and Health Document all substantiate this fact.

Research results, previously shared with EPA, have documented the substantial reductions
in toxicity of silver in groundwater, surface water and sea water by complexation with
natural ligands and adsorption to particulate matter and sediments. The silver complexes
that are formed in natural waters have very low toxicity. Additionally, EPA's own  data
have documented that silver is not mobile in soils and sediments, and thus does not pose
any potential  for adverse environmental or health affects.

Toxicity data already exists that verifies that the current LDR treatment standard minimizes
threat to human health and the environment.
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Listing of Silver as a TC Characteristic Waste is Counterproductive.

Previous submissions to EPA's Office of Solid Waste have also documented the high level
of recovery that silver-rich wastes already receive due to silver's high economic value.
Inclusion of silver on the TC list also discourages the conservation of wash water in photo
processing operations, because reducing the washwater volume raises the concentration
(but not the amount) of silver discharged. This increase in concentration increases the
likelihood that silver will cause the waste to be regulated as a hazardous waste and that the
silver concentration will exceed the LDR standard.  It can  be difficult to justify the
necessary capital expenditures for water conservation, if this increase in the discharge
concentration of silver causes it to become a hazardous waste, with the resulting expenses.

Recommendations
For all these reasons the appropriate agency action is to  delete silver as TC waste criteria. If
this is not done, Kodak strongly recommends that EPA not promulgate any technology
based LDR treatment level for silver more stringent than the current D011 level, until
acting on their own determination that silver does not cause adverse health or
environmental effects and therefore does not need to be  a TC waste criteria.

RESPONSE:

       The commenter stated that the proposed treatment  standard of 0.14 mg/L for silver
exceeds the point at which there could be a threat to human health or the environment. The
commenter recommends that EPA remove silver from the TC list or at least avoid setting a
lower treatment standard than the current TC level.
       The Agency points out that the characteristic, or TC levels, are the levels at which
constituents are clearly hazardous, not the levels at which threats from the constituents are
minimized. See 55 FR at 22652 (June 1,1990); 51  FR at 21648 (June 13,1986); 55 FR
11798 (March 29, 1990).  EPA finds, for purposes of this rule, that none of the treatment
standards are established below levels at which threats to human health and the
environment are minimized.  This finding stems from the Agency's inability at the present
time to establish concentration levels for hazardous constituents which represent levels at
which threats to human health and the environment are minimized. Unless the Agency
determines national-level, risk-based concentration  levels that achieve the "minimized
threat" requirement for a particular wastestream, the Agency believes that BDAT treatment
(as reflected by the UTS levels) best fulfills the statutory charge. Reliance upon BDAT
treatment removes, as much as possible, the inherent uncertainty associated with use of
predictive models in ascertaining the effects of land disposal. 55 FR at  6642 (February 26,
1990).
       The Agency does not have an adequate basis for removing silver from the TC list,
or regulating it at a less stringent level than the proposed treatment standard. EPA is in the
process of determining whether silver should remain on the TC list at 40 CFR 261.24 (b)
Table 1, or whether the current TC level should be altered. In addition, EPA continues its

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work on the Hazardous Waste Identification Rule (HWIR) to establish risk-based exit
levels for hazardous wastes.  The Agency is not yet able to establish a nationally-
applicable risk-based level for silver that fulfills the statutory charge of minimizing threats
of hazardous waste to human health and the environment.
       The process of establishing such a level is technically complex; EPA is currently
modeling the ecological and human health effects of exposure to silver through numerous
pathways.  Several issues remain unresolved concerning human health and environmental
risk. The Agency recently acquired studies indicating that silver may be connected to
central nervous system and other non-cancer effects in humans.  (Rungby, J. and G.
Danscher, 1984, Hypoactivity in silver exposed rats, Acta. Pharmacol. Toxicol. 55:
398-401, as cited in ATSDR, 1990; Shavlovski et al, 1995, Embryotoxicity of silver ions is
diminished by ceruloplasm—further evidence for its role in the transport of copper,
Biometals; Ohbo, Y., H. Fukuzako, K. Takeuchi, and M. Takigawa, 1996, Argyria and
convulsive siezures caused by ingestion of silver in a patient with schizophrenia, Psychiatry
and Clinical Neurosciences. 50:89-90; and Wetshofen, M., and H. Schafer,  1986,
Generalized argyrosis in man: neurotological, ultrastructural, and X-ray microanalytical
findings,. Arch. Otorhinolaryngol., 243:260-264.) The draft Reference Dose for these
effects have not been finalized by the Agency for use in risk assessments. (A  Reference
Dose is a benchmark level for chronic toxicity that is protective of human health.) In
addition to potential adverse human health effects, uncertainties and concerns  also remain
for potential adverse environmental effects. Although EPA removed the Maximum
Contaminant Level (MCL) for silver in drinking water, the Ambient Water Quality Criteria
remain in effect due to potential aquatic toxicity. Further areas of uncertainty  are how
silver speciates after release (i.e. which valence state of silver would be present).  The issue
could be important since potential toxic effects differ depending  on the species of silver
present. In short, EPA's work on understanding risks from disposal of silver-containing
hazardous wastes is ongoing, and it would be premature to establish a treatment standard
based on risk at this time.
       In the absence of such "minimize threat" levels for hazardous constituents, the
Agency establishes standards based on Best Demonstrated Available Technology (BOAT).
(See full explanation  in the preamble of the Phase II Final LDR rule at 59 FR 47986,
September 19, 1994.) The fact that the UTS for nonwastewater forms of silver is being
lowered (made more stringent) from the existing level of 0.30mg/L to 0.14 mg/L is due to
new data on what treatment technology achieves.  As explained in the summary of this
preamble section (Section III: Revised Land Disposal Restrictions for Metal Constituents in
All Hazardous Wastes, Including Toxic Characteristic Metals), technology-based standards
are the best assurance that threat is minimized, given the uncertainty as to the level at which
threats of hazardous waste disposal are minimized.
       EPA expects that the new treatment standard for silver wastes will have little, if any
impact on the regulated community.  As stated by commenters, high-silver wastes are
generally recycled due to their economic value and are covered by the special  streamlined
standards for recyclable materials utilized for precious metal recovery at 40 CFR Part
266.70 Subpart F. Moreover, the Regulatory  Impact Analysis for this rule estimated that

                                       205

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the new, more stringent UTS levels for metal constituents, including silver, will not
increase compliance costs.  This is because the current treatment methods already achieve
the new standard of 0.11 in silver nonwastewaters.  (Achievability of the UTS for TC silver
\vastewaters is not an issue; EPA received no comments nor data on its proposal to apply
the existing UTS of 0.43 mg/L.)
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DCN               PH4P017
COMMENTER      Kodak
RESPONDER       PV
SUBJECT   TC
SUBJNUM         019
COMMENT
       EPA's proposal to change the treatment standard levels for TC
       metal wastes to UTS levels for metal constituents is beyond EPA's
       RCRA jurisdiction.
       As discussed above, EPA's jurisdictional authority under Subtitle
       C is limited to the regulation of'hazardous wastes," as defined by
       Section 1004(5) of the Act. 42 U.S.C. § 6903(5). Treatment
       of characteristic wastes, which are generally below TCLP levels,
       removes those wastes from the Subtitle C system because the wastes
       are no longer hazardous. Therefore, imposing
       additional requirements pertaining to UTS levels is wholly
       unnecessary, unjustifiable and unauthorized. Even so, in light of
       EPA's interpretation of the Third Third Opinion, and assuming EPA
       has authority under RCRA Subtitle C to set LDR treatment standards
       below TCLP levels, EPA must provide a sound scientific or technical
       basis for doing so. 1
       1 That is, EPA must adequately demonstrate that the TCLP levels
       for TC metal wastes do not minimize short- and long-term threats,
       if any, to human health and the environment. In this Proposed Rule,
       however, EPA has failed to offer any such evidence to justify the
       arbitrary replacement of TCLP levels with UTS for land disposal of
       TC metal wastes (waste water and non-waste water).

RESPONSE

       The Agency disagrees with the commenter's statement that the proposal to change
the treatment standards for TC  metal wastes to UTS levels for metal constituents is beyond
EPA's RCRA jurisdiction. The Agency notes that, as stated in the background section for
previous rule-makings, section 3004(m) of RCRA states that treatment standards must
substantially diminish a waste's toxicity or mobility.  Treatment levels also must minimize
short- and long-term threats posed by the waste to human health and the environment.
These results must be achieved taking into account the inherent uncertainties in assessing
the long-term threats posed by land disposal. RCRA section 3004 (d) (1) and  (g). EPA has
stated that EP/TC levels are clearly hazardous, and therefore does not represent minimal
threat.  Thus in setting the treatment standards for TC metal wastes at the UTS levels, the
Agency is seeking to achieve substantial reductions in toxicity and mobility for these
wastes, not merely incidental or small reductions, using BDAT. This provides an objective
measure that, in this case, posed by toxic  metal mobility, are being minimized.

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       EPA believes, in certain cases, farther treatment of characteristic metal wastes
below the TC level may be required in order to minimize the threats to human health and
the environment from these wastes within the meaning of 3004(m).

       As stated previously in the Third Third Final Rule, which set treatment standards
for characteristic wastes at the characteristic levels, the Agency believed that the goals of
section 3004(m) may require the application of standards promulgated lower than the
characteristic level.
DCN               PH4P019
COMMENTER      ASARCO
RESPONDER       PV
SUBJECT    TC
SUBJNUM          019
COMMENT

ASARCO Incorporated ("Asarco") appreciates the opportunity to comment on the above
referenced proposed rule published by the United States Environmental Protection Agency
("EPA" or the "Agency") regarding "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," Docket No.
F-95-PH4P-FFFFF, 60 Fed. Reg. 43654 (August 22,1995) ("Proposed Rule"). Any
proposed land disposal restrictions ("LDRs") that may be applicable to the primary mineral
processing industry are of great interest to Asarco.

Asarco is one of the world's leading producers of primary nonferrous metals, principally
copper, lead, zinc, and silver, and operates a number of mines, mills, smelters and
refineries. Asarco's mines and mills extract and beneficiate ores containing a number of
valuable nonferrous metals, which are generally further processed at its smelters and
refineries. Materials produced in one processing unit  (such as a primary smelting furnace,
converting vessel, or refining kettle) are frequently processed in another unit for further
recovery of one or more metals. These include such metal-bearing intermediate materials as
matte, blister, or lead bullion and other in-process materials such as speiss and drosses.
These materials are further processed to final products, including refined copper, refined
lead, silver, and associated co-products such as antimonial lead, gold, selenium, tellurium,
bismuth, cadmium, nickel sulfate, and antimony oxide.

Asarco has actively participated in EPA's prior rulemakings relating to the potential

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application to Asarco's operations of the federal Resource Conservation and Recovery Act
of 1976, as amended, §§ 6901 et seq. ("RCRA") and its implementing regulations. In
particular, Asarco is concerned with issues associated with the application of the definitions
of solid and hazardous waste to the non-ferrous metals industry, since those definitions
identify the universe of mineral processing wastes to which RCRA Subtitle C and LDR
rules could potentially apply.
Although EPA expects to propose LDR standards for mineral processing wastes in a
supplemental rule in December 1995, Asarco's present interest arises from the precedential
impact of this Proposed Rule and others before it. Asarco has conveyed its concerns to EPA
through comments on prior LDR rulemakings, including the recent Phase III proposed rule,
60 Fed. Reg. 11702 (March 2, 1995), and the proposed rule concerning newly identified
and listed hazardous wastes and contaminated soils, 58 Fed. Reg. 48092 (September 14,
1993). One of
Asarco's concerns has been that the Agency will mechanically apply regulations developed
in other contexts to mineral processing wastes. Thus, Asarco has emphatically stressed the
need to consider the unique nature of mining and mineral processing wastes in developing
LDR regulations that may apply to the primary mineral processing industry. Without being
able to evaluate the mineral processing waste-related provisions of the Phase IV LDR,
Asarco does not have all the requisite information to consider fully the potential
consequences for Asarco related to this Proposed Rule. Asarco, therefore, reserves the right
to submit with its comments on the upcoming mineral processing waste supplemental rule,
any additional comments concerning the mineral processing waste-related implications of
the Phase III and August 22, 1995 Phase IV proposals.

RESPONSE

       The Agency thanks the commenter for providing comments on the current proposed
rule and the previous LDR rulemakings. The Agency notes that regulations developed for
other hazardous wastes will never be applied to mineral processing wastes without
considering the unique nature of mineral processing wastes.  The Agency has conducted
extensive research and characterized the wastes generated by the mineral processing
industry. For additional information, the Agency refers the commenter to the EPA
document "Identification and Description of Mineral Processing Wastestreams," in the
RCRA Docket for this  rulemaking.

DCN                PH4P025
COMMENTER      Magma Copper Co.
RESPONDER       PV
SUBJECT    TC
SUBJNUM          025
COMMENT
       On behalf of Magma Copper Company ("Magma"), Gibson, Dunn &
       Crutcher submits the following comments on the proposed rulemaking by

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the United States Environmental Protection Agency ("EPA" or the
"Agency") regarding "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," Docket No. F-95-PH4P-FFFFF, 60 Fed. Reg. 43654 (August 22,
1995) ("Proposed Rule"). Magma also supports the comments of the
National Mining Association ("NMA Comments") regarding this Proposed
Rule. The NMA Comments supplement the comments set forth below, in
which Magma expresses concerns more specific to its operations.
Magma's copper operations include mining, concentrating, smelting,
refining, leaching, solvent extraction/electrowinning and rod casting.  The
fully integrated nature of these activities provides Magma with a number of
options for recovery of copper from indigenous and non-indigenous
materials. As a result, EPA's proposal to control the management of
decharacterized wastes, i.e., characteristic hazardous wastes that have been
deactivated through dilution, under the federal Resource Conservation and
Recovery Act of 1976, as amended, §§ 6901 et. seq.  ("RCRA") and its
implementing regulations could present some concern to Magma.  Also,
EPA's proposal to utilize Universal Treatment Standards ("UTS") in place  of
Toxicity Characteristic Leaching  Procedure ("TCLP") standards for land
disposal of toxicity characteristic ("TC") metal wastes is unnecessarily
stringent.
EPA has stated in this Proposed Rule that it intends to address mineral
processing waste-related Land Disposal Restriction ("LDR") provisions  in a
supplemental rule to be proposed by December 15, 1995. Because EPA's
LDR proposals concerning mineral processing wastes are not yet available
for public review, Magma cannot submit comments addressing all possible
implications of the Proposed Rule at this time. Thus, Magma reserves the
right to submit further comments on this Proposed Rule, with its comments
on the forthcoming mineral processing waste supplemental rule.
In addition, Magma emphasizes that this Proposed Rule must not address
regulation of Bevill-excluded "surface impoundments," such as tailings
impoundments, since EPA dos not have RCRA Subtitle C authority to
regulate such surface impoundments.  This issue has long since been
adequately addressed and resolved in prior RCRA rulemakings. Thus, in
this rulemaking, EPA must clearly distinguish Bevill-excluded
impoundments from the units that it seeks to regulate (e.g., Clean Water Act
("CWA") - regulated wastewater units or RCRA Subtitle D impoundments),
assuming the Agency has any legal authority to regulate such units at all
under Subtitle C of RCRA.

 EPA lacks RCRA authority to promulgate UTS levels as the LDR
treatment standard levels for TC metal wastes.

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       RCRA Subtitle C restricts EPA's authority to the regulation of
       "hazardous wastes," as defined by section 1004(5). 42 U.S.C. S
       6903(5). Characteristic wastes that have been treated to
       UTS levels, which are below TCLP levels, are not subject to
       Subtitle C control because those wastes are no longer considered
       hazardous. However,  assuming EPA has accurately interpreted the CWM
       Decision in this Proposed Rule, EPA's authority to promulgate LDR
       treatment standards below the TCLP levels is qualified by the
       requirement that it justify such levels. In setting treatment
       standards for land disposal of TC metal wastes, EPA must provide a
       technical basis or rationale to substantiate its "determination"
       that TCLP levels are insufficient to minimize any short- or
       long-term  threat to human health and the environment. EPA has
       presented no such evidence in this Proposed Rule.
       The fact that the TCLP levels constitute the regulatory threshold
       at which the waste is deemed"nonhazardous" demonstrates that EPA
       is attempting to regulate wastes beyond its jurisdiction. EPA has
       previously reviewed and promulgated the TCLP levels in order to
       satisfy its mandate to  designate as "hazardous" any wastes that
       pose a significant risk to human health and the environment. See 40
       C.F.R. S 261.20, et seg. (and supporting preambles to such rules).
       Thus, EPA has already made the intrinsic determination that the
       existing TCLP levels  adequately protect human health and the
       environment. See generally 55 Fed. Reg.  11798 (March 29,
1990).Moreover, the D.C. Circuit implied in the CWM Decision that
       EPA may only impose LDR treatment standards at levels sufficient
       "to reduce risks beyond those presented by the characteristics
       themselves." 976 F.2d at  15. EPA has failed to demonstrate that
       treatment below TCLP levels is necessary to satisfy this standard
       of risk reduction and has clearly failed to justify establishing
       even lower UTS levels. The indiscriminate replacement of TCLP
       levels with UTS for LDR treatment standards disregards the
       recognized intent behind the characteristic approach, results in
       the over-management of wastes that do not pose a threat to human
       health and the environment, and has not been otherwise justified by
       EPA.

Magma respectfully requests  that EPA will carefully consider the foregoing comments in
its review of this proposed rule, as this rule promises to be of significant precedential value
for later rulemakings.

RESPONSE
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       The Agency disagrees with the commenter's notion that EPA lacks RCRA authority
to promulgate UTS levels as the LDR treatment standards for TC metal wastes.  The
Agency notes that, as stated in the background section for previous rule-makings, section
3004(m) of RCRA states that treatment standards must substantially diminish a waste's
toxicity or mobility. Treatment levels also must minimize short- and long-term threats
posed by the waste to human health and the environment, and in doing so must account for
the inherent uncertainty in using predictive methodologies to assess long-term threats posed
by land disposal. EPA, in the Third Third rule (55 FR 22520) has stated that EP/TC levels
are clearly hazardous, and therefore does not represent a level at which threats are
minimized. The D.C. Circuit also remanded standards for lead and chromium when it was
clear that further technology-based reductions were achievable. 976 F.2d at 27, 32.
Likewise, in HWTC III, the court found that characteristic levels would not necessarily
minimize threats.  886 F 2d 362-365. Thus, in setting the treatment standards for TC metal
wastes at the UTS levels, the Agency is seeking to achieve substantial reductions in toxicity
and mobility for these wastes, not merely incidental or small reductions, using BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to  minimize the threats to human health and
the environment from these wastes within the meaning of 3004(m).  As stated previously in
the Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.
DCN               PH4P026
COMMENTER      The TDJ Group
RESPONDER       PV
SUBJECT           TC
SUBJNUM          026
COMMENT
       5) The proposed rulemaking appears to violate RCRA Section 3004
       (M), since the proposed standards are not 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 l,000,000tons 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

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       In addition, the Agency also determined the treatment standards for TC metals
based on performance data obtained from a HTMR facility (grab sample data). The
Agency compared the treatment standards developed based on stabilization and HTMR and
selected the highest (less stringent) standard for each metal to establish the proposed UTS,
thus allowing for maximum process variability and detection limit difficulties. Thus, the
Agency has demonstrated that commercially available stabilization and HTMR
technologies can readily achieve the UTS promulgated in today's rule for TC metal wastes.
The Agency also would like to note that if a particular waste possesses unique properties
making it more difficult to treat than the waste on which the standards are based, the
affected party may petition the Agency for a treatability variance as per 40 CFR 268.44 on
a case-by-case basis.
DCN               PH4P027
COMMENTER      Rollins Environmental Services, Inc.
RESPONDER       PV
SUBJECT    TC
SUBJNUM          027
COMMENT

Rollins Environmental Services, Inc. Comments on 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; 60 Federal
Register, pages 43654-43699, 8/22/95; Docket F-95-PH4P-FFFFF This letter constitutes
the comments of Rollins Environmental Services, Inc. on the above referenced notice.

Statement of Interest

Rollins Environmental Services, Inc. (RES) and its wholly-owned subsidiary companies is
a full service company engaged in the treatment and destruction of hazardous and toxic
wastes. Our interests are directly affected by the outcome of this regulatory proposal. In
the referenced 8/22/95 proposal the EPA proposed to address issues associated with Clean
Water Act treatment equivalency, and proposed treatment standards for wood preserving
wastes and toxicity characteristic metal wastes. RES is commenting on limited parts of this
proposal. Specifically RES is commenting on the proposed treatment standards for wood
preserving wastes and toxicity characteristic (TC) metal wastes, and on proposed
improvements to the land disposal restrictions (LDR) program. Following are our
comments.

RESPONSE

      The Agency thanks the commenter for providing comments on TC metal wastes.

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       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 RCRA3004 (M).

       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.

RESPONSE

       The Agency disagrees with the commenter that the Phase IV rule violates RCRA
section 3004(m).  The  Agency agrees with the commenter that HTMR may not be the best
technology for all TC metal wastes. For the same reason, the Agency is establishing a
concentration-based standard rather than requiring a specific technology. The generators
can select any appropriate treatment technology that will treat the waste to the UTS.  EPA
recognizes that all waste streams are not the same and that the characteristics of the same
waste stream can vary  over time.  The determination of treatment standards based on the
BDAT methodology accounts for such variability by applying (1) accuracy correction
factor - to account for any analytical interferences associated with the chemical make-up of
the samples; and (2) variability factor - to correct for normal variations in the performance
of a particular technology over time.

       Furthermore, in establishing the UTS, the Agency reviewed treatment performance
data from commercially demonstrated and available stabilization and HTMR technologies.
The stabilization performance data (based on grab samples) represented a wide range of
metal-bearing wastes (both listed and characteristic) that the Agency believes represents the
most difficult to treat metal-bearing wastes. These waste streams contained multiple metals
which would be representative of a characteristic waste with UHCs, and significant
concentrations of combination metals including: lead and cadmium, barium and lead, and
chromium and antimony.

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       are expressly granted or necessarily implied).  Accordingly, EPA
       should refrain from imposing RCRA Subtitle C controls on
       non-hazardous waste surface impoundments managing
       formerly characteristic wastes.
RESPONSE

       The Agency notes that this issues is not addressed in this rulemaking.  The Agency
is currently conducting a 5-year study to assess the effects of decharacterized wastes placed
in surface impoundments, and the issue of RCRA Subtitle C controls to such surface
impoundments will be addressed at the completion of this study.

DCN               PH4P036
COMMENTER      American Iron & Steel Industry
RESPONDER       PV
SUBJECT    TC
SUBJNUM          036
COMMENT
       Even if EPA had the authority to impose regulatory controls on
       leaks, volatilization, and sludges from non-hazardous waste
       impoundments managing formerly characteristic wastes, there can be
       no doubt that the Agency is not required to establish such
       controls. As noted above, neither the statute nor the Chem Waste
       II decision explicitly mentions leaks, volatilization, or sludges
       from CWA surface impoundments. Although the Court decision in
       some places suggests vaguely that wastes must be treated to
       minimize risks "before exiting ... CWA treatment facilities," 976
       F.2d at 22, the Court clearly was focused on the ultimate
       end-of-pipe discharge of wastewaters from the treatment facilities.
       For example, in summarizing its holding, the Court stated that
       "treatment of solid wastes in a CWA surface impoundment must meet
       RCRA requirements prior to ultimate discharge into waters of the
       United States or publicly owned treatment works." 976 F.2d at 20.
       Similarly, the Court stated that "[tjhe dilution of wastes in Clean
       Water Act facilities is acceptable so long as the toxicity of the
       waste discharged from the facility is minimized or eliminated
       consistent with RCRA."  Id. at 7.
       In short, the Court required only that the ultimate end-of-pipe
       discharge from a non-hazardous waste surface impoundment receiving
       formerly characteristic wastes meet the"minimize threat" standard
       of the RCRA LDR program. EPA itself has acknowledged that

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The Agency notes that metal-specific issues raised by the commenter are addressed in the
corresponding metal-specific chapters of this comment response document.
DCN               PH4P036
COMMENTER      American Iron & Steel Industry
RESPONDER       PV
SUBJECT    TC
SUBJNUM          036
COMMENT
       The most fundamental jurisdictional principle underlying Subtitle
       C of RCRA is that EPA's authority under that portion of the statute
       is limited to the regulation of "hazardous wastes."  See, e.g.,
       American Mining Congress v. EPA, 824 F.2d 1177, 1179 (B.C. Cir.
       1987) ("EPA's authority [under Subtitle C] extends only to the
       regulation of hazardous waste.'").  Of course, one important
       exception to this principle has been recognized by the courts.
       See American Iron and Steel Institute v. EPA, 886 F.2d 390 (D.C.
       Cir. 1989) (noting that the corrective action provision of RCRA
       "sweeps far more broadly than the rest of Subtitle C, with
       its focus on hazardous waste."), cert, denied, 110 S. Ct. 3237
       (1990). However, given the central role that the principle plays
       in the Subtitle C regulatory  scheme, it should not be
       overridden without explicit  authority.
       In the present case, there is nothing in the statute that
       mentions, much less authorizes EPA to regulate leaks,
       volatilization, or sludges from non-hazardous waste surface
       impoundments managing formerly characteristic wastes. Moreover, as
       EPA acknowledges in the preamble to the Phase IV proposal,  the
       decision of the U.S. Court of Appeals for the District of Columbia
       Circuit("D.C. Circuit") in Chemical Waste Management, Inc.  v. EPA,
       976 F.2d 2 (D.C. Cir. 1992) ("Chem Waste II") does not explicitly
       mention or authorize controls for such leaks, volatilization, or
       sludges. See 60 Fed. Reg. at 43,656.  In the absence of any clear
       authority to regulate releases from non-hazardous waste
       impoundments, the general jurisdictional limits of Subtitle C must
       be respected. See Louisiana Public Service Commission v. F.C.C.,
       476 U.S. 355, 374 (1986)(holding that "an agency literally has no
       power to act... unless and until Congress confers power upon
       it."); Walter v. Luther, 830 F.2d 1208,1211 (2nd Cir. 1987)
       (holding that statutes granting power to administrative agencies
       are strictly construed to confer only those powers that

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       background documents for this rulemaking action.3
       Current treatment and disposal practices are, in fact, adequately
       protective of human health and the environment. The use of HTMR to
       treat wastes containing recoverable amounts of lead assures that no
       materials with high lead levels are released to the environment.
       The further treatment of any characteristic slag material by
       stabilization, and the subsequent disposal of treated material in
       accordance with regulatory requirements, ensures that materials
       containing low concentrations of lead pose no  threat to human
       health or the environment. Under the existing system, the standard
       of protection prescribed by §3004(m) is satisfactorily achieved.4

RESPONSE

       [The Agency notes that, as stated in the background section for previous rule-
makings, section 3004(m) of RCRA states that treatment standards must substantially
diminish a waste's toxicity or mobility. Treatment levels also must minimize short- and
long-term threats posed by the waste to human health  and the environment. EPA has stated
that EP/TC levels are clearly hazardous, and therefore do not represent minimize threat
levels. Thus in setting the treatment standards for TC metal wastes at the UTS levels, the
Agency is seeking to achieve substantial reductions in toxicity and mobility for these
wastes, not merely incidental or small reductions using the BDAT.

       With respect to  the determinations made in the Third Third Rule, the Agency notes
that EPA was unable to develop further information at the time,  but clearly stated that the
characteristic level was not the level at which threats are minimized. 55 FR aat 22655. The
D.C. Circuit in fact remanded treatment standards for certain lead wastes, established at the
characteristic level, in light of this.  976 F. 2d at 27. EPA believes that, in certain cases,
further treatment of characteristic metal wastes below the TC level may be required in order
to minimize threats to human health and the environment from these wastes within the
meaning of 3004(m). As stated previously in the Third Third Final Rule, which set
treatment standards for characteristic wastes at the characteristic levels, the Agency
believed that the goals of section 3004(m) may require the application of standards
promulgated lower than the  characteristic level.

       The Agency also would like to note that if a particular waste possesses unique
properties making it more difficult to  treat than the waste on which the standards are based,
the affected party may petition the Agency for a treatability variance as per 40 CFR 268.44
on a case-by-case basis.]
DCN               PH4P045

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       "the court's opinion does not explicitly require more." 60 Fed.
       Reg. 43,659. In light of the limited scope of the Court decision,
       the Agency should not make more work for itself by developing
       and implementing new regulations to address leaks, volatilization,
       and sludges.  Doing so would be particularly inappropriate, in this
       age of limited resources, because the Agency itself
       has characterized such regulations as "a relatively low priority"
       that primarily would address "facilities [that] are believed to
       pose low risks." See Letter from Robert W. Hickmott,
       Associate Administrator, EPA, to Congressman Ron Wyden (November 3,
       1995). Accordingly, EPA should not adopt any leak, volatilization,
       or sludge controls as part of the Phase IV rule.

RESPONSE

       The Agency notes that this issues is not addressed in this rulemaking. The Agency
is currently conducting a 5-year study to assess the effects of decharacterized wastes placed
in surface impoundments, and the issue of RCRA Subtitle C controls to such surface
impoundments will be addressed at the completion of this study.

DCN               PH4P038
COMMENTER     Association of Battery Recyclers
RESPONDER      PV
SUBJECT   TC
SUBJNUM        038
COMMENT
       A.   The Proposed UTSs Are Not Necessary to Ensure the Protection
       of Human Health and the Environment
       Under section 3004(m) of RCRA, EPA is required to:
       [S]pecif[y] those levels or methods of treatment, if any, which
       substantially diminish the toxicity of the waste or substantially
       reduce the likelihood of migration of hazardous constituents from
       the waste so that short-term and long-term threats to human health
       and the environment are minimized.
       42  U.S.C. §6924 (m)(l).
       In determining in the Third Third Rule that the 5.0 mg/1 treatment
       standard is the appropriate treatment standard for D008  wastes, EPA
       obviously concluded that treatment to this concentration level
       would meet the requirements of §3004 (m) of RCRA.2 There is no suggestion in the
proposed Phase IV LDR Rule that EPA has reconsidered this conclusion, or that human
health and the environment are compromised by the existing LDR treatment
       standards. Similarly, no substantiation of a perceived or
       identified threat is described in the available

                                      217

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RESPONDER       PV
SUBJECT    TC
SUBJNUM          070
COMMENT
       Once characteristic wastes are treated to UTS levels, which
       generally fall below TCLP levels, those wastes are no longer
       "hazardous" and are beyond the scope of EPA's Subtitle
       C jurisdiction. However, assuming that EPA has correctly
       interpreted Chemical Waste Management v. EPA, 976 F. 2d 2 (D.C.
       Cir. 1992), cert, denied 113 S. Ct. 1961 (1993) ("CWM Decision"),
       EPA's authority to promulgate LDR treatment standards at levels
       below TCLP levels must be justified on a technical basis. That is,
       EPA must present scientific or technical evidence to demonstrate
       that any short- and long-term threats to human health and the
       environment are not minimized by the utilization of TCP levels.
       See 42 U.S.C. § 6924(m).EPA has offered no such rationale or
       justification in this Proposed Rule, and the promulgation of these
       standards would be inconsistent with risk management principles
       being utilized by other branches of the Agency.

RESPONSE

       The Agency notes that, as stated in the background section for previous rule-
makings, section 3004(m) of RCRA states that the result of complying with treatment
standards must substantially diminish a waste's toxicity or mobility.  Treatment levels also
must minimize short- and long-term threats posed by the land disposal of waste to human
health and the environment.  EPA has stated that  EP/TC levels are clearly hazardous, and
therefore do not represent minimal threat.  See e.g., 55 FR 22651. Thus in setting the
treatment standards for TC metal wastes at the UTS levels, the Agency is seeking to
achieve substantial reductions in toxicity and mobility for these wastes, not merely
incidental or small reductions using the BDAT.

       EPA believes that, in certain cases, further treatment of characteristic metal wastes
below the TC level may be required in order to minimize threats to human health and the
environment from these wastes within the meaning of 3004(m). As stated previously in the
Third Third Final Rule, which set treatment standards for characteristic wastes at the
characteristic levels, the Agency believed that the goals of section 3004(m) may require the
application of standards promulgated lower than the characteristic level.
DCN               PH4P077
COMMENTER      American Foundryman's Soc
                                      220

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COMMENTER      Battery Council International
RESPONDER       PV
SUBJECT    TC
SUBJNUM          045
COMMENT
       BCI urges that there is no lawful basis to lower the treatment
       standards for lead and selenium, and that this issue should not be
       addressed in the current rulemaking. Treatment standards set
       below the characteristic levels for lead and selenium in D008
       nonwastewaters are (I) unachievable using EPA's demonstrated
       technology; (ii) not necessary to protect human health and the
       environment;(iii) inconsistent with previous Agency pronouncements
       on the application of the LDRs to treatment residues; (iv) contrary
       to the Administration's goal of "reinventing
       environmental regulation" and eliminating impediments to recycling;
       and, consequently, (v) unlawful.

RESPONSE

       It is noted that, the Agency proposed revised treatment standards for lead and
selenium, along with other TC metals, in the Phase IV second supplemental proposal (62
FR 26045, May 12, 1997). The Agency collected additional data form commercial
stabilization and HTMR facilities (based on grab samples) and re-calculated the BDAT
standards for lead and selenium at 0.75 mg/1 and  5.7 mg/1 respectively.  These standards are
less stringent than the standards proposed in the original Phase IV rule (60 FR 43654,
August 22,1995). The Agency believes that the  new data show that the proposed standards
are achievable through commercially available stabilization and HTMR technologies.

       The Agency also notes that, as stated in the background section for previous rule-
makings, section 3004(m) of RCRA states that treatment standards must substantially
diminish a waste's toxicity or mobility.  Treatment levels also must minimize short- and
long-term threats posed by the waste to human health and the environment.  EPA has stated
that EP/TC levels are clearly hazardous, and therefore, do not represent minimal threat.
Thus in setting the treatment standards for TC metal wastes at the UTS levels, the Agency
is seeking to achieve substantial reductions in toxicity and mobility for these wastes, not
merely incidental or  small reductions, using BDAT.
DCN               PH4P070
COMMENTER      Doe Run Resources Corp.

                                      219

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RESPONSE

       It's noted that the Agency is establishing a concentration-based standard and is not
requiring the use of a specific treatment technology. The Agency has demonstrated that
commercially available technologies can treat wastes that are at least as difficult to treat as
the foundry sands to the UTS, and therefore, has neither violated RCRA requirements nor
the intent of Congress. These technologies are not those performing to the outer limits of
technical capability. Rather, the Agency has constructed the standards so that they are
achievable by a number of available technologies, and consistently utilized a methodology
providing for flexibility in availability of treatment alternatives.

       The Agency had inadequate data on foundry sands prior to the second supplemental
proposal, and the commenters failed to submit BDAT quality performance data in response
to EPA's request. Therefore, to base the treatment standards on representative samples, the
Agency conducted site visits to commercial hazardous waste treatment facilities and
collected additional stabilization treatment performance data that better characterized the
diversity of metal wastes. The stabilization performance data (based on grab samples)
represented a wide range of metal-bearing wastes (both listed and characteristic) including
mineral processing wastes, foundry waste, baghouse dust, battery slag, soils, pot solids,
recycling by-products, and sludge. These waste streams contained multiple metals which
would be representative of a characteristic waste with UHCs and significant concentrations
of combination metals including: lead and cadmium (untreated concentrations 13mg/L
TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP and 338 mg/L TCLP respectively);
barium and lead (untreated concentrations 13.5 mg/L TCLP and 50.7 mg/L TCLP and
32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and antimony (untreated
concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data collection
effort, the Agency believes that it has addressed the issue of effective multiple contaminant
waste stabilization in two ways: (1) Utilization of treatment data that contains multiple
metals; and (2) the utilization of these data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however the Agency can not find any information
that would suggest that multiple waste codes cannot be stabilized to the treatment levels,
when effective and optimized stabilization processes are used.  (The Agency does note an
exception for the metal  constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments).  The Agency also notes that
many of the multiple-contaminant waste streams contained  significant lead concentrations
in addition to other metal constituents and still achieved extremely low treatment levels.
See memorandum entitled, "Final Revised Calculation of Treatment Standards Using Data
Obtained From Rollins  Environmental's Highway 36 Commercial Waste Treatment
Facility and GNB's Frisco, Texas Waste Treatment Facility," March 10, 1997.
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RESPONDER      PV
SUBJECT          TC
SUBJNUM         077
COMMENT
I.  IN DIRECT VIOLATION OF RCRA SECTION 3004(M), THE PROPOSED
LDR PHASE IV RULEMAKING 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 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 BOAT 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 BOAT 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.

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RESPONSE

       For EPA's response on this issue, see the "Comments and Responses Document for
Issues Related to Mineral Processing Wastes," in the RCRA docket for today's rulemaking.
DCN               PH4P104
COMMENTER      SSINA
RESPONDER       PV
SUBJECT           TC
SUBJNUM          104
COMMENT
       On behalf of the Specialty Steel Industry of North America ("SSINA"), we
       are submitting the following comments on the U.S. Environmental
       Protection Agency's ("EPA's" or "the Agency's") proposed Land Disposal
       Restrictions Phase IV Rule ("LDR Phase IV"). See 60 Fed. Reg. 43,654
       (Aug. 22, 1995). SSINA members will be adversely affected by EPA's
       proposed revisions unless the final rule incorporates the modifications
       recommended in these comments.
       BACKGROUND ON SSINA
       SSINA is a national trade association comprised of 21 producers of specialty
       steel products, including stainless, electric, tool, magnetic, and other alloy
       steels. SSINA member companies, which represent over 90 percent of the
       United States specialty steel industry, are geographically dispersed, with 19
       located in the United States, one in Canada, and one in Mexico.
       During normal specialty steel production, SSINA members generate
       wastestreams that contain small quantities of heavy metals. Some of these
       waste streams may occasionally trigger Toxicity Characteristic ("TC") metal
       waste levels for: cadmium (D006), chromium (D007), and lead (D008).
       These materials could be unnecessarily subjected to onerous regulations and
       treatment standards prior to being land disposed unless the final rule
       incorporates the modifications recommended in these comments.

       BACKGROUND ON LDR PHASE IV

       In the Third-Third LDR rule, EPA established treatment standards for metal
       wastes that were characteristically hazardous under the Extraction Procedure
       ("EP") test. Since promulgation of the TC rule in September 1990, the
       Toxicity Characteristic Leaching Procedure ("TCLP") is used to determine
       whether a metal waste is characteristically hazardous. Wastes that are
       characteristic under the TCLP but not under the EP test are considered
       "newly identified" wastes and are not currently subject to LDRs. Under

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       In addition, the Agency also determined the treatment standards for TC metals
based on performance data obtained from a HTMR facility (grab sample data). The
Agency compared the treatment standards developed based on stabilization and HTMR and
selected the highest (less stringent) standard for each metal to establish the proposed UTS,
thus, allowing for maximum process variability and detection limit difficulties. Therefore,
the Agency believes that the UTS promulgated in today's rule for TC metals represent
standards achievable through commercially available stabilization and HTMR technologies.
DCN               PH4P078
COMMENTER      Battery Council International
RESPONDER       PV
SUBJECT    TC
SUBJNUM          078
COMMENT
       B. The USTs Contravene The Administration's Reinventing
       Environmental Regulation Initiative
       EPA's proposed application of the UTS to characteristic metal
       wastes, and in particular toDOOS wastes, contravenes the Clinton
       Administration's Reinventing Environmental Regulation initiative.37
       Avoidance of treatment of a "waste's hazardous constituents to
       levels below those which the Agency would consider necessary to
       protect human health and the environment" is specifically included
       in EPA's list of targeted changes to the RCRA program.38
       By proposing to apply the UTS to characteristic metal wastes, EPA
       has violated the letter and spirit of the Reinventing Environmental
       Regulation Initiative. As discussed in Section II, application of
       the proposed UTS to characteristic metal wastes is not necessary
       to protect human health and the environment. The concentrations of
       hazardous constituents remaining in stabilized D008 wastes
       generated by the lead (or battery) and lead recycling
       industries currently do not pose a threat to human health and the
       environment.
       Moreover, also as described above, the imposition of the UTS to
       characteristic metal wastes will result in a significant economic
       disruption of the secondary lead smelting and battery recycling
       industry, in return for a negligible environmental benefit. This
       is not the type of regulation that is "designed to achieve
       environmental goals in a manner that minimizes costs
       to individuals, businesses, and other levels of government"
       contemplated by the Reinventing Environmental Regulation
       Initiative. 39/

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revisions to paragraph (a). Paragraph (b) is not revised in LDR Phase IV.
The Agency must revise paragraph (b) in conjunction with paragraph (a) to
avoid unintended treatment requirements for some listed hazardous wastes.

SUMMARY OF COMMENTS

Under LDR Phase IV, SSINA member companies would have to achieve
UTS levels through either HTMR or stabilization. HTMR is not
commercially available  for all steelmaking wastes. Therefore, stabilization is
the only practical alternative for some of these wastes. Although
stabilization is commercially available, stabilization technologies have not
been demonstrated to treat all steelmaking wastes to meet the proposed
treatment standards in LDR Phase IV. SSINA is concerned that some
steelmaking wastes will be unable to meet the HTMR-derived UTS with
stabilization technologies, the only technologies commercially available for
some of these wastes.

These limitations on stabilization technologies need to be resolved by the
Agency before promulgating LDR Phase IV as a final rule. Otherwise,
steelmaking facilities generating TC metal wastes could suffer significant
economic harm by being forced to develop technologies to treat their wastes
to meet inappropriate and overly stringent treatment standards proposed
under the Phase IV.
The Agency must assess the effects  of stabilization technologies on all
steelmaking 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 diverse TC
metal wastes  can meet more stringent standards, the applicable treatment
standards under UTS for chromium, cadmium, and lead should remain at the
current and appropriate characteristic levels.
COMMENTS

I.  IN DIRECT VIOLATION OF RCRA SECTION 3004(M), THE
PROPOSED  LDR PHASE IV RULEMAKTNG WOULD
INAPPROPRIATELY ESTABLISH A "TECHNOLOGY FORCING
STANDARD" BECAUSE THE STANDARD IS NOT BASED ON A
DEMONSTRATED AND COMMERCIALLY AVAILABLE
TECHNOLOGY FOR ALL TC METAL 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

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LDR Phase IV, all TC metal wastes will be subject to LDRs and will have to
be treated to meet Universal Treatment Standards ("UTS") for the TC metal
and any underlying hazardous constituents ("UHCs"). LDR Phase IV will
impose much more stringent treatment standards for most TC metal wastes
than the current treatment standards which are appropriately set at the
characteristic level.

The proposed rule will have a specific adverse impact on steelmaking
facilities in the following respects: (1) all steelmaking wastes that qualify as
TC metal wastes will have to meet much more stringent treatment standards
under UTS for TC metals (e.g., cadmium, chromium, and lead) before being
land disposed; and (2) steelmaking facilities will have to determine if their
wastes have UHCs and then treat these wastes to meet the UTS levels for
these UHCs, even if such constituents did not cause the waste to be
hazardous.

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), and for lead (from 5.0 to 0.37 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 and lead 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 or lead will respond
like K061 when subjected to HTMR

I/ The more stringent proposed treatment standard for chromium is derived
from the application of a stabilization technology on k061 and TC
chromium wastes    ("D007"), including stripping liquids, plating and
pelletizing operation wastes, and clean-out wastes from plating tanks. 59
Fed. Reg. 47,983,47,999 (Sept. 19,1994).

LDR Phase IV also addresses the "clean up" of  existing regulations under 40
C.F.R. § 268.9. In the preamble to LDR Phase IV, the Agency states that it
will '"clean up' existing regulatory language that is outdated, confusing, or
unnecessary." 60 Fed. Reg. at 43,677. Accordingly, the Agency states that
paragraphs (a) and (b) under 40  C.F.R. § 268.9 will be revised and clarified
to explain "how wastes should be identified when they are both listed and
characteristic wastes." Id at 43,678. However, the Agency only proposes

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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 of K061 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 steelmaking 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 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. Proposed BDAT Background 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 A-4
of Id. at A-18 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 steelmaking wastes can consistently
meet UTS. Otherwise, applying HTMR-derived treatment standards to
steelmaking wastes that can only use stabilization technology will result in a

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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 ea., 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 B AT-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 hi 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-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

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       we can be of further assistance, please do not hesitate to contact us.

RESPONSE

       It's noted that the Agency is establishing a concentration-based standard and is not
requiring the use of a specific treatment technology. They Agency has demonstrated that
commercially available technologies can treat wastes that are at least as difficult to treat as
the foundry sands to the UTS, and therefore, has neither violated RCRA requirements nor
the intent of Congress.  The Agency also recognizes that certain wastes (e.g., wastes with
unrecoverable amounts of metals) may not be accepted by HTMR facilities. The Agency
notes that the generator is not required to use HTMR to treat the waste.  Any appropriate
treatment technology can be used to treat the waste to the UTS. For example, if HTMR is
not available or best suited for D008 waste, then the generator can treat the waste using
stabilization or any other appropriate treatment technology.

       The Agency had inadequate data on foundry sands prior to the second supplemental
proposal, and the commenters failed to submit BDAT quality performance data in response
to EPA's request. Therefore, to base the treatment standards on representative samples, the
Agency conducted site visits to commercial hazardous waste treatment facilities and
collected additional stabilization treatment performance data that better characterized the
diversity of metal wastes. The stabilization performance data (based on grab samples)
represented a wide range of metal-bearing wastes (both listed and characteristic) including
mineral processing wastes, foundry waste, baghouse dust, battery slag, soils, pot solids,
recycling by-products, and sludge. These waste streams contained multiple metals which
would be representative of a characteristic waste with UHCs and significant concentrations
of combination metals including: lead and cadmium (untreated concentrations 13mg/L
TCLP and 4090 mg/L TCLP and 11.7 mg/L TCLP and 338 mg/L TCLP respectively);
barium and lead (untreated concentrations 13.5 mg/L TCLP and 50.7 mg/L TCLP and
32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and antimony (untreated
concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data collection
effort, the Agency believes that it has addressed the issue of effective multiple contaminant
waste stabilization in two ways: (1) Utilization of treatment data that contains multiple
metals; and (2) the utilization of these data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however the Agency can not find any information
that would suggest that multiple waste codes cannot be stabilized to the treatment levels,
when effective and optimized stabilization processes are used.  (The Agency does note an
exception for the metal constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments).  The Agency also notes that
many of the multiple-contaminant waste streams contained significant lead concentrations
in addition to other metal constituents and still achieved extremely low treatment levels.
See memorandum entitled, "Final Revised Calculation of Treatment Standards Using Data
Obtained From Rollins Environmental's Highway 36 Commercial Waste Treatment

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"technology forcing standard." Establishing a "technology forcing standard"
for some steelmaking 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- 9 to ES-20. Because
adjustments are not currently possible, steelmaking companies 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 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 steelmaking industry to make fundamental modifications to their
complex production processes. This is not realistic or reasonable.

On behalf of S SIN A, we appreciate this opportunity to comment on EPA's
proposed rule for Phase IV of the Land Disposal Restrictions. We expect the
Agency to correct the mistakes in the rulemaking record that we have
addressed in these comments and hope that EPA considers our
recommendations when promulgating the final rule. Until EPA develops the
necessary supporting data on the availability and effectiveness of metal
recovery and stabilization technologies, the LDR treatment standards for
lead, cadmium, and chromium should remain at the characteristic levels. If

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Facility and GNB's Frisco, Texas Waste Treatment Facility," March 10, 1997.

       In addition, the Agency also determined the treatment standards for TC metals
based on performance data obtained from a HTMR facility (grab sample data). The
Agency compared the treatment standards developed based on stabilization and HTMR and
selected the highest (less stringent) standard for each metal to establish the proposed UTS,
thus, allowing for maximum process variability and detection limit difficulties. Therefore,
the Agency believes that the UTS promulgated in today's rule for TC metals represent
standards achievable through commercially available stabilization and HTMR technologies.
DCN                PH4P105
COMMENTER      SMA
RESPONDER       PV
SUBJECT           TC
SUBJNUM          105
COMMENT
      On behalf of the Steel Manufacturers Association ("SMA"), we are
      submitting the following comments on the U.S. Environmental Protection
      Agency's ("EPA's" or "the Agency's") proposed Land Disposal Restrictions
      Phase IV Rule ("LDR Phase IV"). See 60 Fed. Reg. 43,654 (Aug. 22, 1995).
      SMA members will be adversely affected by EPA's proposed revisions
      unless  the final rule incorporates the modifications recommended in these
      comments.

      BACKGROUND ON SMA

      SMA is a national trade organization representing 56 North American steel
      companies that account for approximately 40 percent of all steel produced in
      the United States. The SMA companies are geographically dispersed, with
      45 located in the United States, eight in Canada, and three in Mexico. Most
      SMA members are electric arc furnace ("EAF") steel producers engaged in
      continuous casting of liquid steel which is hot and cold rolled into various
      steel products.

      SMA members are a principal part of North America's largest recycling
      industry. Each year, SMA members help recycle more than 76 billion
      pounds of steel scrap  (including nine million junk cars which might
      otherwise be disposed in landfills) from the 90 billion pounds of scrap
      recycled by the entire U.S. steel industry each year. During normal
      steelmaking operations, SMA members generate waste streams that contain
      small quantities of heavy metals. Some of these waste streams may
      occasionally trigger Toxicity  Characteristic ("TC") metal waste levels for:

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cadmium (D006), chromium (D007), and lead (D008). These materials
could be unnecessarily subjected to onerous regulations and treatment
standards prior to being land disposed unless the final rule incorporates the
modifications recommended in these comments

BACKGROUND ON LDR PHASE IV
In the Third-Third LDR rule, EPA established treatment standards for metal
wastes that were characteristically hazardous under the Extraction Procedure
("EP") test. Since promulgation of the TC rule in September 1990, the
Toxicity Characteristic Leaching Procedure ("TCLP") is used to determine
whether a metal waste is characteristically hazardous. Wastes that are
characteristic under the TCLP but not under the EP test are considered
"newly identified" wastes and are not currently subject to LDRs. Under
LDR Phase IV, all TC metal wastes will be subject to LDRs and will have to
be treated to  meet Universal Treatment Standards ("UTS") for the TC metal
and any underlying hazardous constituents ("UHCs"). LDR Phase IV will
impose much more stringent treatment standards for most TC metal wastes
than the current treatment standards which are appropriately set at the
characteristic level.

The proposed rule will have a specific adverse impact on steelmaking
facilities in the following respects: (1) all steelmaking wastes that qualify as
TC metal wastes will have to meet much more stringent treatment standards
under UTS for TC metals (e.g., cadmium, chromium, and lead) before being
land disposed; and (2) steelmaking facilities will have to determine if their
wastes have UHCs and then treat these wastes to meet the UTS levels for
these UHCs, even if such constituents did not cause the waste to be
hazardous.

I/The more stringent proposed treatment standard for chromium is derived
from the application of a stabilization technology on K061 and TC
chromium wastes ("D007"), including stripping liquids, plating and
pelletizing operation wastes, and clean-out wastes from plating tanks. 59
Fed. Reg. 47,983,47,999 (Sept. 19, 1994).

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), and for lead (from 5.0 to 0.37 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 and lead were solely
derived from the application of High Temperature Metal Recovery

                                232

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("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 or lead will respond
like K061 when subjected to HTMR.
SUMMARY OF COMMENTS

Under LDR Phase IV, SMA member companies would have to achieve UTS
levels through either HTMR or stabilization. HTMR is not commercially
available for all steelmaking wastes.  Therefore, stabilization is the only
practical alternative for some of these wastes. Although stabilization is
commercially available, stabilization technologies have not been
demonstrated to treat all steelmaking wastes to meet the proposed treatment
standards in LDR Phase IV. SMA is concerned that some steelmaking
wastes will be unable to meet the HTMR-derived UTS with stabilization
technologies, the only technologies commercially available for some of
these wastes.

These limitations on stabilization technologies need to be resolved by the
Agency before promulgating LDR Phase IV as a final rule. Otherwise,
steelmaking facilities generating TC metal wastes could 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 all
steelmaking 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 diverse TC
metal wastes can meet more stringent standards, the applicable treatment
standards under UTS for chromium, cadmium, and lead should remain at the
current and appropriate characteristic levels.

COMMENTS

I.  IN DIRECT VIOLATION OF RCRA SECTION 3004(M). THE
PROPOSED LDR PHASE IV RULEMAKING WOULD
INAPPROPRIATELY ESTABLISH A "TECHNOLOGY FORCING
STANDARD" BECAUSE THE STANDARD IS NOT BASED ON A
DEMONSTRATED AND COMMERCIALLY AVAILABLE
TECHNOLOGY FOR ALL TC METAL WASTES

A.  Establishing a "Technology Forcing Standard" Violates RCRA and the

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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 no, promote a "process which contemplates
technology-forcing standards." Vol. 130 Cong. Rec. S9178 (daily ea., 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-D011,

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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 of K061 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 steelmaking 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 I 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. Proposed BDAT Background 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 A at
A-18 to A-27. Many of the TC metal wastes treated with stabilization

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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 steelmaking wastes can consistently meet UTS.
Otherwise, applying HTMR-derived treatment standards to steelmaking
wastes that can only use stabilization technology will result in a "technology
forcing standard." Establishing a "technology forcing standard" for some
steelmaking 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, steelmaking companies 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 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 BDAT Background Document for TC Metal Wastes
D004-D011, July 26, 1995,  at 3-6. The Agency's recommendation to
investigate iterative processes or substitute production materials would
require the steelmaking industry to make fundamental modifications to their
complex production processes. This is not realistic or reasonable.

On behalf of SMA, we appreciate this opportunity to comment on EPA's
proposed rule for Phase IV of the Land Disposal Restrictions. We expect

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       the Agency to correct the mistakes in the rulemaking record that we have
       addressed in these comments and hope that EPA considers our
       recommendations when promulgating the final rule. Until EPA develops the
       necessary supporting data on the availability and effectiveness of metal
       recovery and stabilization technologies, the LDR treatment standards for
       lead, cadmium, and chromium should remain at the characteristic levels. If
       we can be of fur her assistance, please do not hesitate to contact us.

RESPONSE

       It's noted that the Agency is establishing a concentration-based standard and is not
requiring the use of a specific treatment technology. They Agency has demonstrated that
commercially available technologies can treat wastes that are at least as difficult to treat as
the foundry sands to the UTS, and therefore, has neither violated RCRA requirements nor
the intent of Congress. The Agency also recognizes that certain wastes (e.g., wastes with
unrecoverable amounts of metals) may not be accepted by HTMR facilities. The Agency
notes that the generator is not required to use HTMR to treat the waste. Any appropriate
treatment technology can be used to treat the waste to the UTS. For example, if HTMR is
not available or best suited for D008 waste, then the generator can treat the waste using
stabilization or any other appropriate treatment technology.

       The Agency had inadequate data on foundry sands prior to the second supplemental
proposal, and the commenters failed to submit BDAT quality performance data in response
to EPA's request. Therefore, to base the treatment standards on representative samples, the
Agency conducted site visits to commercial hazardous waste treatment facilities and
collected additional stabilization treatment performance data that better characterized the
diversity of metal wastes. The stabilization performance data (based on grab samples)
represented a wide range of metal-bearing wastes (both listed and characteristic) including
mineral processing wastes, foundry waste, baghouse dust, battery slag, soils, pot solids,
recycling by-products, and sludge. These waste streams contained multiple metals which
would be representative of a characteristic waste with UHCs and significant concentrations
of combination metals including:  lead and cadmium (untreated concentrations 13mg/L
TCLP and 4090 mg/L TCLP and  11.7 mg/L TCLP and 338 mg/L TCLP respectively);
barium and lead (untreated concentrations 13.5  mg/L TCLP and 50.7 mg/L TCLP and
32mg/L TCLP and 898 mg/L TCLP (4.6%), and chromium and antimony (untreated
concentrations 1580 mg/L TCLP and 16.1 mg/L TCLP). Based on this data collection
effort, the Agency believes that it  has addressed the issue of effective multiple contaminant
waste stabilization in two ways: (1) Utilization of treatment data that contains multiple
metals; and (2) the utilization of these data to generate treatment standards. The Agency
acknowledges that the stabilization "recipe" may need to be adjusted to account for the
variability of the waste contaminants, however the Agency can not find any information
that would suggest that multiple waste codes cannot be stabilized to the treatment levels,
when effective and optimized stabilization processes are used.  (The Agency does note an

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exception for the metal constituent, Selenium which was discussed in detail in the Second
Supplemental preamble as well as the response to comments). The Agency also notes that
many of the multiple-contaminant waste streams contained significant lead concentrations
in addition to other metal constituents and still achieved extremely low treatment levels.
See memorandum entitled, "Final Revised Calculation of Treatment Standards Using Data
Obtained From Rollins Environmental's Highway 36 Commercial Waste Treatment
Facility and GNB's Frisco, Texas Waste Treatment Facility," March 10, 1997.

       In addition, the Agency also determined the treatment standards for TC metals
based on performance data obtained from a HTMR facility (grab sample data). The
Agency compared the treatment standards developed based on stabilization and HTMR and
selected the highest (less stringent) standard for each metal to establish the proposed UTS,
thus, allowing  for maximum process variability and detection limit difficulties. Therefore,
the Agency believes that the UTS promulgated in today's rule for TC metals represent
standards achievable through commercially available stabilization and HTMR technologies.
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DCN     PH4P008
COMMENTER  Florida DEP
RESPONDER RC
SUBJECT   UHCS
SUBJNUM   008
COMMENT
       Revisions to D004-D011 Treatment Standards: By failing to add the
       words "and meet §268.48 standards," to these treatment standards
       EPA appears to be inviting another law suit. There is no point to
       putting off the inevitable. Metal TC wastes are just as likely to
       have underlying hazardous constituents as non-metal wastes. There
       is no environmental justification for omitting treatment standards
       for these constituents from these rule revisions.

RESPONSE

       EPA agrees with the commenter that toxicity characteristic metal wastes should also
meet §268.48  standards. The Agency in the regulatory language section of the original
Phase IV proposal, 60 FR at 43694 August 22,1995, amended section 268.40(e) in Subpart
D - Treatment Standards for D004 through D011 to include meeting §268.48 standards.
DCN    PH4P013
COMMENTER New York DEC
RESPONDER RC
SUBJECT   UHCS
SUBJNUM   013
COMMENT
       DEC has several concerns, comments, and suggestions on the EPA's
       proposed standard for Toxicity Characteristic (TC) Metal Wastes
       (CMW).
       DEC believes that the "gap" between characteristic levels and the
       Universal Treatment Standards (UTS) should be addressed, even if
       statutory amendments are needed.

RESPONSE

       The toxicity characteristic (TC) levels only determine whether a waste is hazardous
or non-hazardous, and specifically identifies only wastes which clearly are hazardous. The
characteristic level is not the level at which threats to human health and the environment
are minimized. See Chemical Waste Management v. EPA. 976 F. 2d at 14. These
characteristic levels are not based on the performance of available treatment technologies,

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and the D.C. Circuit Court remanded them as insufficiently stringent treatment standards
capped at the characteristic level. See Chemical Waste Management v. EPA. 976 F. 2d at
26-27. EPA, under the statutory requirements of RCRA section 3004(m), is required to
promulgate regulations specifying levels or methods of treatment, and is setting numerical
universal treatment standards (UTS) based on the performance of available treatment
technologies. EPA believes that in certain cases, further treatment of characteristic metal
wastes below the TC level may be required in order to minimize threats to human health
and the environment from these wastes within the meaning of 3004(m). As stated
previously in the Third Third Rule which set treatment standards for the characteristic
wastes at the characteristic levels, the Agency believed that the goals of section 3004(m)
may require the application of standards promulgated lower than the characteristic level (55
FR 22542 June 1,1990), unless the Agency determines risk-based concentration levels that
achieve the minimized threat requirement  for a particular waste stream.  EPA believes that
the finalized UTS levels fulfills the statutory requirement of section 3004(m). EPA further
believes this issue to have been long-since settled and does not intend to reopen it here.
This comment response is included only in the event one is deemed necessary.
DCN     PH4P013
COMMENTER  New York DEC
RESPONDER RC
SUBJECT   UHCS
SUBJNUM   013
COMMENT
       If EPA widely solicited health/environmental risk data, new
       hazardous levels might need to be set for characteristic metal
       wastes, when alone or in combination with other characteristic
       metal wastes (D004-D011), to provide proper protection of human
       health and the environment. On the other hand, under EPA's
       proposed treatment standards for characteristic metals, metal
       wastes that are not hazardous at current regulatory levels can be
       orders of magnitude above the proposed treatment standards for
       many underlying hazardous constituents (UHC), but can be disposed
       of at Subtitle D facilities, untreated.  This gap that has existed
       since CMWs became subject to the LDR will not be addressed by the
       proposed standards. In the case of lead (D008) for example, a  •
       waste with 4.9 parts per million (ppm) by the TCLP, is not
       hazardous, while a waste with 5.1 ppm by the TCLP is hazardous and
       must be treated to a TCLP level of 0.37 ppm (nonwastewaters).

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RESPONSE

       The gap mentioned by the commenter is a consequence of the structure of the law,
which requires that hazardous wastes be treated until threats posed by their land disposal
are minimized.  The law does not require such treatment (or any federal control) over
wastes that are not hazardous in the first instance.

       The Agency has been pursuing several specific efforts to evaluate the hazards of
metal-bearing wastes, including the evaluation of damage cases identified in the 1996
Hazardous Waste Characteristics Scoping Study, reexamination of the risk modeling used
for the 1995-proposed Hazardous Waste Identification Rule, and evaluation of fate and
transport in other environmental media. Upon completion of these efforts, the Agency will
be in a better position to decide whether revisiting the TC regulatory limits would be
appropriate in a future rulemaking.
DCN     PH4P013
COMMENTER  New York DEC
RESPONDER  RC
SUBJECT  UHCS
SUBJNUM   013
COMMENT
       EPA should determine if it is appropriate to lower characteristic
       hazardous levels for some or all of the TC metals. At the same
       time, a provision should be added whereby decharacterized CMWs
       could exit the LDR if all UHCs were within an order of magnitude of
       the UTS value. Two objectives of the LDR could be met. First,
       the amount of CMWs which are land disposed untreated would be
       reduced, and secondly, some regulatory relief would be given from
       the UTS standards for UHCs, which would ensure that all
       CMWs brought under regulation are not over regulated in comparison
       to CMWs that did not fail the TC.
       These measures will not eliminate the present regulatory gap, but
       will mitigate it to a substantial degree.

RESPONSE

       Toxicity characteristic (TC) wastes, like the ICR characteristic wastes, could
contain other hazardous constituents at concentrations of concern. In this regard, EPA
again reiterates its finding that in the absence of reliable, national risk-based levels that
achieve the minimized threat requirement, the technology-based levels remain the best

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means of determining with any certainty that the requisite minimization of threats has
occurred. Thus, the commenter's suggestion of an order of magnitude increase for UHCs is
not appropriate. The decision to extend the UHC requirement to TC wastes is consistent
with the Court's opinion on the treatment of ignitable, corrosive, and reactive characteristic
wastes in Chemical Waste Management v. EPA. 976 F. 2d at 17 (D.C. Cir. 1992), cert.
denied 113 U.S. 1961 (1993). The Court held that all hazardous constituents in
characteristic wastes must meet levels satisfying the requirements in RCRA 3004(m) before
land disposal, and that treatment standards cannot be achieved by dilution (provided, of
course, that treatment standards are not established below the level at which threats to
human health and the environment are minimized). (See 59 FR 47987 September 19,
1994).

      Furthermore, the gap in coverage between which wastes are identified as hazardous
and the levels at which threats are minimized is not the subject of this proceeding, which is
establishing treatment standards (per Court ordered deadline) for wastes already identified
as hazardous. Thus, the commenter's thoughtful points must be addressed in a later
proceeding.
DCN     PH4P026
COMMENTER  The TDJ Group
RESPONDER  RC
SUBJECT   UHCS
SUBJNUM   026
COMMENT
       We are not aware of any material amount of work that has looked at
       the potential impact of the UTS standards on the wastes of either
       the iron and steel industry or the steel maintenance industry. It
       is not clear that the Agency has fully considered whether treatment
       of underlying hazardous constituents to the proposed standard is
       either feasible or a prudent use of waste management dollars.

RESPONSE

       The commenter did not submit any data for the Phase IV rulemaking.  For this
rulemaking, the data submitted was for toxicity characteristic metal wastes (D004-D011).
See memorandum to the RCRA docket from Elaine Eby and Anita Cummings, EPA, dated
March 11,1998. In developing the TC metal treatment standards, the Agency first looked
at transferring the metal treatment standards from K061, an iron and steel industry waste, to
toxicity characteristic metal wastes.  However, in response to comments received from the
original proposal, the Agency collected more data to account for the variability in
characteristic metal wastes. The Agency looked at stabilization and high temperature
metals recovery technologies. The Agency's review of this treatment data on characteristic

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 metal and mineral processing wastes show that UTS are achieveable for the UHCs in waste
 characteristic for TC metals and mineral processing wastes. The Agency, thus, has
 determined that characteristic metal wastes should be no more difficult to treat than any
 other characteristic wastes for UHCs.
DCN     PH4P067
COMMENTER Horsehead/Zinc Corp.
RESPONDER  RJM
SUBJECT   UHCS
SUBJNUM  067
COMMENT
       Second, EPA intends to apply the underlying hazardous constituent
       ("UHC") treatment requirement to listed wastes that also exhibit
       the toxicity characteristic ("TC"). Third, EPA's promulgation of
       treatment standards for TC metal wastes will require treatment of
       these wastes to achieve the universal treatment standards ("UTS")
       for all UHCs for the first time. As a result, this
       requirement will require costly and environmentally unnecessary
       treatment for at least one UHC, namely sulfide, that currently is
       used as an effective wastewater treatment reagent.

RESPONSE

       The commenter is incorrect in their understanding that the UHC requirements
would apply to listed wastes that also displayed the TC. The UHC requirement generally
only applies to characteristic wastes. See 40 CFR section 268.9(b). The only time that the
UHC requirement would be triggered for a listed waste is if it also exhibited one or more
hazardous characteristics that are not specifically addressed in the treatment standard for
the listed waste. In these cases  (which the Agency believes would occur infrequently), the
treatment standard for both the listed waste and for the hazardous characteristic constituent
or property—including  the UHC requirements—would have to be met.

       Finally, two commenters raised issues related to the sulfide treatment standard in
the UTS table at 40 CFR 268.48 and its applicability to their process (including mineral
processing wastes). The EPA reviewed the basis for the sulfide treatment standard at
268.48 and found that it was only intended to apply to F039 wastes. We are clarifying and
correcting 268.48 UTS table to  limit sulfide to F039. Therefore, the treatment standard for
sulfide is only applicable to F039 arid not mineral processing wastes identified by the
commenters.  These mineral processing wastes will of course be subject to the deactivation
standard for reactive sulfide waste streams as set out in 261.23(a)(l) and (a)(5). The
Agency will continue to determine if a separate universal treatment standard for sulfide

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from reactive wastes for the mineral processing and other sectors is needed and if so will
propose one in the future.
DCN     PH4P067
COMMENTER  Horsehead/Zinc Corp.
RESPONDER RJM
SUBJECT   UHCS
SUBJNUM   067
COMMENT
       EPA should not require treatment of UHCs for listed hazardous
       wastes that exhibit the toxicity characteristic.

RESPONSE

       The commenter is incorrect in their understanding that the UHC requirements
would apply to listed wastes that also displayed the TC. The UHC requirement generally
only applies to characteristic wastes. See 40 CFR section 268.9(b). The only time that the
UHC requirements would be triggered for a listed waste is if it also exhibited one or more
hazardous characteristics that are not specifically addressed in the treatment standard for
the listed waste. In these cases (which the Agency believes would occur infrequently), the
treatment standard for both the listed waste and for the hazardous characteristic constituent
or property-including the UHC requirements—would have to be met.
DCN     PH4P067
COMMENTER  Horsehead/Zinc Corp.
RESPONDER RJM
SUBJECT   UHCS
SUBJNUM   067
COMMENT
       EPA's Phase III LDR proposed rule (proposed in March 1995) would
       require treatment of listed hazardous wastes that also exhibit a
       characteristic of hazardous waste for all UHCs reasonably expected
       to be present in the listed waste.  See 60 Fed. Reg. at 11741
       (proposed 40 C.F.R. §268.9(b)) .21 (The previous version of this
       regulation required only that the treatment standards for the
       listed waste include a standard for the constituent that caused
       the waste to exhibit a characteristic. See 40 C.F.R. §  268.9(b)
       (1994).) Since the Phase IV Proposal establishes treatment
       standards for toxicity characteristic ("TC") metal wastes, the
       Phase III proposed rule and the Phase IV Proposals together would
       require treatment of listed hazardous wastes that exhibit the TC

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for all of the UHCs reasonably expected to be present in the waste
to the UTS LEVELS. As applied to listed wastes that exhibit the TC,
the Phase III proposed requirement to apply the UHC treatment
requirement to listed wastes that exhibit a characteristic,
together with the treatment standards for metal TC wastes in the
Phase IV Proposal, is inappropriate and unlawful for two reasons.
First, the Chemical Waste Management decision, upon which
EPA relies to establish the revised treatment standards for wastes
that exhibit a characteristic, does not apply to TC wastes. Second,
EPA's approach is inconsistent with its existing treatment
standards for listed wastes. Therefore, EPA should withdraw its
proposal to require treatment for the UHCs in listed wastes that
exhibit the TC.
B. The Chemical Waste Management Decision Does Not Apply to TC
Hazardous Wastes. EPA has not explained why the UHC treatment
requirement applies to hazardous wastes that exhibit the TC. The
holdings in Chemical Waste Management v. EPA, 976 F.2d 2 (D.C.
Cir.1992) apply only to ignitable, corrosive and reactive ("ICR")
wastes. Id. at 16, 17, 18. Limiting application of the Chemical
Waste Management decision to ICR wastes is appropriate because
of EPA's prohibition on dilution for TC wastes. In contrast to that
prohibition, EPA had previously allowed dilution for ICR wastes
because dilution removed the characteristic. Since the
Chemical Waste Management court held that EPA did not show that
such dilution also addressed the UHCS IN the ICR wastes, it
remanded the ICR waste treatment standard rules to the Agency.
The decision did not affect EPA's treatment standards for TC
wastes, which already were subject to the dilution prohibition. The
Chemical Waste Management decision therefore does not justify EPA's
extension of the UHC treatment requirement to TC wastes in general
and metal TC wastes in particular, because the concerns expressed
by the court (namely, dilution of ICR wastes to remove the
characteristic) simply are not present with respect to TC wastes.
C. The UHC Treatment Requirement for Listed Wastes Is Contrary to
EPA's Treatment Standard Methodology.
More specifically for the purpose of the Phase IV Proposal, the
UHC treatment requirement should not apply to listed hazardous
wastes that exhibit the TC. All listed wastes require
either treatment by a specified method (e.g., destruction) or
treatment for all of the constituents of concern identified by EPA
during the treatment standard rulemaking process for each
listed waste. Therefore, since existing treatment standards for
listed wastes meet and frequently exceed RCRA Section 3004(m)(l)'s

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       "minimize threat" requirement, establishing a UHC requirement
       for listed wastes is unnecessary and unsupported by the record.
       With respect to listed wastes, EPA selects constituents for
       treatment standards based on their presence in the waste: The
       specific constituents that the Agency selected for regulation in
       each treatability group were, in general, those found in the
       untreated wastes at significant (i.e., treatable)
       concentrations. EPA does not propose to regulate constituents where
       data show that they would be effectively managed by regulation of
       other constituents (i.e., treatment of the regulated constituents
       naturally results in the treatment of other constituents).
       53 Fed. Reg. § 11741,11750 (April 8,1988). All of the TC
       constituents are on the list of nearly 200 BDAT list constituents
       that EPA considers during the treatment standard rulemaking
       process for listed wastes. Moreover, the BDAT list of constituents
       is virtually the same as the UHC list(with several exceptions not
       relevant to this discussion). Therefore, while the Section
       268.9(b)proposed UHC treatment requirement may be appropriate for
       listed wastes that only are ignitable, corrosive, or reactive, it
       is not appropriate  for listed wastes that exhibit the TC, since
       EPA's  treatment standards for listed wastes already address the
       UHCs. Therefore, EPA should withdraw the proposed requirement in
       the Phase III Proposal to apply the UHC treatment requirement
       to listed wastes that exhibit the TC.

RESPONSE

       Toxicity characteristic (TC) wastes (D004-D043) cannot be land disposed until the
characteristic is removed  and any underlying hazardous constituents, as defined in 268.2(i),
are treated to meet the UTS.  These wastes, like the ICR characteristic wastes, could
contain other hazardous constituents at concentrations of concern.  In this regard, EPA
again reiterates finding that in the absence of reliable, national risk-based levels
establishing when threats are minimized,  technology-based levels remain the best means of
determining with any certainty that the requisite minimization of threats has occurred.  The
decision to extend the UHC requirement to TC wastes is consistent with the Court's
opinion on the treatment of ignitable, corrosive, and reactive  characteristic wastes in
Chemical Waste Management v. EPA. 976 F. 2d at 17 (D.C.  Cir. 1992), cert, denied 113
U.S. 1961 (1993).  The Court held that all hazardous constituents in characteristic wastes
must meet the  levels satisfying the requirements in RCRA 3004(m) before land disposal,
and that treatment standards cannot be achieved by dilution (provided, of course, that
treatment standards are not established below the level at which threats to human health
and the environment are minimized).  (See 59 FR 47987 September 19, 1994).
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       Furthermore, the commenter is incorrect in their understanding that the UHC
requirements would apply to listed wastes that also displayed the TC. The UHC
requirement generally only applies to  characteristic wastes.  See 40 CFR section 268.9(b).
The only time that the UHC requirements would be triggered for a listed waste is if it also
exhibited one or more hazardous characteristics that are not specifically addressed in the
treatment standard for the listed waste. In these  cases (which the Agency believes would
occur infrequently), the treatment standard for both the listed waste and for the hazardous
characteristic constituent or property—including  the UHC requirements—would have to be
met.

DCN     PH4P067
COMMENTER  Horsehead/Zinc Corp.
RESPONDER RJM
SUBJECT   UHCS
SUBJNUM   067
COMMENT
       Withdraw the UHC treatment requirement for listed hazardous wastes
       that exhibit the toxicity characteristic.

RESPONSE

       The commenter is incorrect in their understanding that the UHC requirements
would apply to listed wastes that also  displayed the TC. The UHC requirement generally
only applies to characteristic wastes. See 40 CFR section 268.9(b).  The only time that the
UHC requirements would be triggered for a listed waste is if it also exhibited one or more
hazardous characteristics that are not specifically addressed in the treatment standard for
the listed waste. In these cases (which the Agency believes would occur infrequently), the
treatment standard for both the listed waste and for the hazardous characteristic constituent
or property—including the UHC requirements—would have to be met.
DCN     PH4P089
COMMENTER  ASTSWMO
RESPONDER RC
SUBJECT   UHCS
SUBJNUM   089
COMMENT
       (1) It is inappropriate to require that decharacterized wastes
       meet treatment standards for underlying hazardous constituents.
       If EPA continues to have concerns with the disposal of
       decharacterized wastes, a more appropriate means of addressing
       those concerns would be to expand the waste characterization system
       to address those constituents of concern or concentrations which

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the current system inadequately addresses. Gaps in the waste
characterization system are more appropriately filled with
additional or more up-to-date waste characterization criteria,
rather than patched with treatment standard requirements.
For example, if there are specific constituents of concern in
decharacterized wastes that EPA is using the Land Disposal
Restrictions (LDR) to address, it would be more logical and
consistent to develop waste characteristics that ensure those
particular constituents of concern do not occur in decharacterized
waste. The characterization system should address all
constituents of concern, rather than relying on LDRs to provide the
necessary protection.
An example of the present inconsistency of the applicability of
LDR's underlying hazardous constituents (UHC) and toxicity
characteristic is that characteristic  waste, at the point
of generation, requires treatment to Universal Treatment Standards
(UTS), while a waste that is not characteristically hazardous, at
the point of generation, would not be required to be treated to UTS
but may have constituents concentration above the UTS. In the
case of lead (D008) for example, a waste with 4.9 parts per million
(ppm) by the  TCLP is not hazardous, while a waste with a 5.1 ppm by
the TCLP is hazardous and must be treated to a TCLP level of 0.37
ppm(non waste waters).
Applying the land disposal restrictions and the associated
treatment standards to decharacterized wastes poses a number of
enforcement and compliance problems. Although
decharacterized wastes may be disposed of in facilities outside of
the Subtitle C universe, EPA acknowledges these facilities are not
prepared to receive the paperwork associated with hazardous waste,
such as the LDR notification and certification. For this reason,
EPA requires that the LDR notification and certification for
decharacterized waste be submitted to EPA or authorized States
rather than the non-Subtitle C receiving facility (59 FR 48016).
If the receiving facility does not receive the notification
statement, which includes a list of the underlying hazardous
constituents the treater will monitor, and it does not receive the
certification statement which specifies that the decharacterized
waste requires further treatment to meet universal treatment
standards for the underlying hazardous constituents present, then
how is the receiving facility informed that the decharacterized
waste it has received cannot be land disposed until it is further
treated?
Enforcing agencies will receive the notification and certification

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       statements for decharacterized  waste, but how do those agencies
       verify that the LDR requirements are met for decharacterized wastes
       at non-Subtitle C facilities without a tracking system for such
       wastes? The serious practical issues associated with applying
       treatment standards to decharacterized wastes with underlying
       hazardous constituents place in jeopardy both those willing but
       unable to comply due to incomplete information, and those who must
       ensure effective enforcement despite inadequate information.
       Applying treatment standards to underlying hazardous constituents
       in decharacterized wastes but not to listed or delisted wastes is
       an inequitable application of the LDR requirement. The constituents
       of concern addressed by the treatment standards for the listed
       wastes were developed in the early days of the LDR program and are
       not necessarily complete or comprehensive.  Knowing this, it is not
       logical to require that decharacterized waste meet treatment
       standards for underlying hazardous constituents while listed wastes
       are not subject to this requirement. Furthermore, according to the
       proposed changes in the table in section 268.40, the
       characteristic metals wastes are not subject to the treatment
       standards for underlying hazardous constituents, although the
       characteristic organic wastes seem to remain subject to this
       requirement. This is in conflict  with the preamble (60 FR 43682)
       which states that characteristic metals wastes must meet any
       underlying hazardous constituents.

RESPONSE

       The gap mentioned by the commenter is a consequence of the structure of the law,
which requires that hazardous wastes be treated until threats posed by their land disposal
are minimized. The law does not require such treatment (or any other federal control) over
wastes that are not hazardous in the first instance.

       In addition, TC metal wastes (D004-D011), like the ICR characteristic wastes and
TC organic wastes, could contain other hazardous constituents at concentrations of concern.
In this regard,  EPA again reiterates its finding that in the absence of reliable, national risk-
based levels that achieve the minimized threat requirement, the technology-based levels
remain the best means of determining with any certainty that the requisite minimization of
threats has occurred. The decision to extend the UHC requirement to TC wastes is
consistent with the Court's opinion on the treatment of ignitable, corrosive, and reactive
characteristic wastes in Chemical Waste Management v. EPA. 976 F. 2d at 17 (D.C. Cir.
1992), cert, denied 113 U.S. 1961 (1993). The Court held that all hazardous constituents in
characteristic wastes must meet levels satisfying the requirements in RCRA 3004(m) before
land disposal, and that treatment standards cannot be achieved by dilution (provided, of

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course, that treatment standards are not established below the level at which threats to
human health and the environment are minimized).  (See 59 FR 47987 September 19,
1994).

       The reason for the UHC distinction between listed and characteristic wastes is that
EPA has studied the listed wastes carefully and established treatment standards already for
hazardous constituents present in significant levels. It is impossible to do the same for
characteristic hazardous wastes, because this group of wastes is so diverse. Hence, the
UHC process duplicates the same process EPA has already undertaken for listed wastes.

       Furthermore,  a decharacterized waste only may be disposed of in facilities outside
of the Subtitle C universe when the UHCs reasonably expected to be present have been
treated; then the decharacterized waste is no longer considered to be hazardous and may be
disposed of in a Subtitle D facility. Once the waste is no longer hazardous, a one-time
notification and certification is submitted to the EPA Region or authorized State.  In
addition, copies are kept in the generator's/treater's files. Otherwise, the waste is still
subject to the record keeping requirements of 40 CFR §268.7.
DCN     PH4P048 (Phase IV original proposal)
COMMENTER Chemical Waste Management
RESPONDER  RC
SUBJECT   UHCS
SUBJNUM  048
COMMENT
       2.  Applying Underlying Hazardous Constituents to
       Characteristically Hazardous Metal Wastes
       The Agency is proposing to require all D004-D011 wastes to meet
       treatment standards for any UHCs reasonably expected to be present
       in those wastes at the point of the waste's generation.
       CWM believes that this is the most significant part of the Phase
       IV proposal because it will cause a significant amount of
       predominately metal bearing waste streams to be penetrated in
       combustion units that are currently being successfully treated
       using stabilization.
       The environmental services industry has for years successfully
       stabilized characteristic metal wastes that contain low levels of
       unregulated organics or regulated organics that are
       below characteristic levels. The impact of this proposal upon the
       commercial hazardous waste industry is extremely difficult if not
       impossible to quantify. The reason this is the case is because in
       all cases the generators have not historically been required to
       identify organic UHCs in D004-D011 wastes. Recent surveys of our

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facilities indicate up to as much as 30% of the waste
stabilization volume may contain organics above UTS.  As proposed
this rule will not require all D004-D011 wastes streams with
organic UHCs above the UTS level to be treated by combustion or
an alternative organic treatment process prior to stabilization.
Furthermore, chemical oxidation should not be one of these
alternative organic treatment options until it can be demonstrated
to achieve legitimate organic treatment. CWM has
submitted information to the Agency indicating that chemical
oxidation in the stabilization process may not constitute proper
treatment under LDR (See Attachment III). This data indicates
that volatilization of organics accounts for significant reductions
in the contaminant levels evaluated when these wastes are treated
to characteristic LDR levels.
As a result, if the Agency requires D004-D011 wastes with organic
UHCs to meet UTS CWM requests that the Agency state that chemical
oxidation of organics is not a viable treatment option for
D004-D011  wastes containing organic UHCs.
CWM requests that the Agency reconsider the actual impact of this
proposal. The most obvious impact involves the Agency's "Dilution
Prohibition and Combustion of Inorganic Metal-Bearing Hazardous
Wastes Policy" issued May 23, 1994. The stated goal of this policy
is to prohibit inorganic metal-bearing wastes with insignificant
levels of organics in combustion units. As the policy exists
inorganic metal bearing waste streams must have 1 ) organics or
cyanide above the F039 treatment standards, although the Phase III
proposed rule has proposed to change this to levels above UTS; 2)
organic  debris-like material; or 3) have reasonable heating value
above 5,000 BTU at the point of generation to qualify for
combustion.
As a result of this policy inorganic metal bearing waste streams
that were previously combusted are now being stabilized. This
includes inorganic metal bearing waste streams that do have organic
levels above F039 but which are not regulated as a listed or
characteristic waste because of the organics present, and can be
stabilized successfully. The net result of this proposed change is
that these wastes that have been moved away from combustion will
now be required to be combusted in order to meet the UTS organic
levels. This is obviously in conflict with the Agency's policy.
The Agency states on page 4 of the May 23, 1994 policy that "These
inorganic metal-bearing hazardous wastes should be and are usually
treated by metal recovery or stabilization technologies. These
technologies remove hazardous constituents through recovery

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in products, or immobilize them, and are therefore permissible BDAT
treatment methods." This directly contradicts the proposal in this
rulemaking.
CWM has been able to find one example of a D004-D011 waste stream
with organic UHCs present above UTS which we have data available.
(See Attachment 2 Profile Number AE 8017)This profile is normally
characteristically hazardous for D005, D006, and DO 10, however,
this data indicates that this stream is only hazardous for D006
under this analysis. The waste stream also contains TC organics
under the characteristic levels but above the UTS levels for
UHCs.  Under this proposal this waste stream that is currently being
successfully stabilized will not have to be treated by
incineration.
The second consequence of this proposal is it will result in more
metal bearing wastes being burned, which in turn increases the
concentration of metals in the incinerator ash. This
increased concentration, coupled with the proposed lowering of BDAT
for D004-D011 wastes, will create real problems for operations
stabilizing incinerator ash to meet BDAT for characteristic
metals.
A third consequence of this policy is it's obvious conflict with
the Agency's Waste Reduction and Combustion Strategy  issued May 18,
1993. One of this strategy's stated goals is to
investigate innovate waste treatment technologies that provide
protection to human health and the environment. Although CWM
admits that stabilization may not be an innovate technology it
has been and will continue to be an effective way to treat
inorganic metal bearing wastes with low levels of organics.
The fourth consequence of this proposal is its effect on
petroleum-contaminated media and debris that fail TCLP for
D018-D043 and are subject to the corrective action requirements
under 40 CFR 280. These waste streams currently are considered
solid wastes which are not hazardous wastes.  (See 40 CFR 261.4(b))
In many situations these petroleum contaminated media wastes are
hazardous for characteristic metals, particularly lead (D008). As
proposed, those waste streams that are characteristically hazardous
for metals would have to be treated for organic UHCs. For example,
a petroleum contaminated soil that is characteristic for lead
(D008) and also contains benzene above the UTS level of 10.0 mg/kg
TC A for benzene would be required to be treated by combustion
because the benzene would be identified as a UHC for D008. This
would send this waste stream from a stabilization treatment
facility to a combustion facility. The net result will be increased

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costs for the disposal of these UST corrective action waste
streams.
The fifth consequence of this proposal is the impact on
characteristic metal waste streams containing PCBs. CWM currently
stabilizes characteristic metal wastes that contain PCBs.  Under
existing regulatory requirements D004-D011 wastes with PCBs can be
stabilized provided the PCBs and other HOCs present in the waste do
not exceed 1,000 mg/kg. If these D004-D011 wastes exceed 1,000
mg/kg for PCBs or for PCBs and other HOCs the waste is subject
to California List requirements and must be incinerated pursuant to
268.42(a)(2). Under this proposal the PCBs would be regulated as
UHCs if they exceed the UTS level of 10 mg/kg. This would then
require these waste streams to be incinerated. The net result will
be a significant increase in the cost to dispose of many PCB
remediation  wastes that currently are being stabilized and then
landfilled. This will also prevent the proposed PCB
self-implementing requirements for PCB remediation wastes from
having an impact in situations where the PCB soils also
contain characteristic levels. Under the self implementing
requirements proposed on December 6, 1994(See 59 Fed. Reg. at
62,788 ) PCB remediation waste can be disposed in Subtitle D
landfills if the waste contains less than 50 ppm PCBs. Applying
UHCs to characteristic metals will prevent D004-D011 wastes
containing PCBs less than 50 ppm, which are stabilized for
D004-D011 to  remove the characteristic, from ever meeting this
criteria. CWM  urges the Agency to reevaluate the impact of this
proposal on PCB waste streams.
The final consequence of applying UHCs to  characteristic D004-D011
wastes involves the impact of inorganic metal UHCs on these waste
streams. In situations involving characteristic D004-D011 metals
that have metal UHCs there are potential problems with meeting
the  UTS levels for the UHCs. This is because in order to meet the
lower UTS levels for the characteristic and the UHC metals
additional alkaline reagents will have to be added to treat to
those levels.  This increase in alkalinity can result in the
leaching of other UHC metals at greater levels as the increased
alkalinity causes some metals to solubilize. A likely result will
be that the characteristic wastes may be treated to UTS while the
UHCs may now leach at a higher amount. CWM expects this to be true
in cases involving D006, D007, and D008, and is including
information in Attachment 2 that reflect this  situation for several
waste streams.
One example (See Attachment 2 Profile number BS0576) that

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exemplifies this situation involves a D007 contaminated soil. The
chromium is present at 15.6 mg/kg TCLP in the untreated waste, and
the soil has selenium present at <0.037 mg/kg TCLP. This dictates
that the selenium be identified as a UHC and treated to <0.16 mg/kg
TCLP. On the surface these appears to be a little problem with
treating the wastestream to UTS level. Unfortunately, this is not
the case.  After treatment the chromium is treated to 2.03 Mg/Kg
TCLP. This meets current regulatory levels, however, the proposed
UTS level of the .86 Mg/Kg for chromium is not met. Furthermore,
an examination of the selenium indicates that the addition of the
reagents to treat the chromium has increased the teachable selenium
level from <.37 mg/kg to <.61 mg/kg. This complicates the issue.
The likely result of adding additional reagents to treat the
chromium will be that the selenium will continue to leach at
greater levels.  Additional examples of this phenomenon
are provided in Attachment 2 along with the CWM profiles for each
stream reflected in the data.
Another potential problem with applying metal UHCs to D004-D011
waste streams involves nickel UHCs. It has been CWM's experience
that nickel is very hard to  stabilize when present with other
regulated metals. This experience is based on stabilization
receipts developed for listed wastes that contain nickel (e.g.,
F006, K061, K062, etc.).  CWM believes that
characteristic D004-D011  wastes with nickel UHCs will be very
difficult to treat to UTS levels for both the characteristic and
the nickel UHC. However, CWM cannot at this time provide treatment
data for D004-D011 wastes to support this belief because final TCLP
data for nickel has not been developed for D004-D011 waste streams.
CWM proposes that the Agency consider not applying any UHCs to the
D004-D011 characteristic waste streams. This action will then allow
the continued successful stabilization of the  current D004-D011
wastes that are treated by this technology. To incorporate this
change CWM recommends that the Agency consider amending 268.40(e)
to include an additional line as follows:
"For wastes that are identified only by one, or more, of the
following waste codes D004,  D005, D006, D007, D008, D009, DO 10,
and/or DO 11, the underlying hazardous constituents identified
in 268.48 do not apply prior to land disposal."
A second approach that the Agency may wish to consider is to allow
D004-D011 wastes with organic UHCs to continue to be stabilized
provided the organics are present in levels no greater than an
order of magnitude above  the UTS levels in 268.48. In conjunction
with this CWM believes the Agency should evaluate only requiring

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       treatment of inorganic UHCs to an order of magnitude above the UTS
       level. This would address the increased teachability of these
       UHCs when treating characteristic metal wastes to the UTS levels.
       This action will allow those waste streams with levels just above
       the 268.48 levels for organics and inorganics to continue to
       be stabilized successfully for the D004-D011 constituents.

RESPONSE

       The commenter is concerned with the following issues: (1) impact of underlying
hazardous constituent (UHC) requirements on metal bearing wastes that have organic
UHCs that will require combustion and, thus conflict with the Agency's "Dilution
Prohibition and Combustion of Inorganic Metal-Bearing Hazardous Wastes Policy" dated
May 23, 1994; (2) adoption of the regulations will force the combustion of metal bearing
wastes with organic UHCs; (3) conflict with the Agency's Waste Minimization and
Combustion Strategy issued May 18,1993; (4) petroleum-contaminated media and debris
characteristically hazardous for metals that have organic UHCs would require treatment by
combustion; (5) impact of PCBs as UHCs for characteristic metal soils; and (6) impact of
treating multiple metal UHCs in characteristic metal wastes.  In addition, the commenter
recommends the following two approaches to address their concerns: (1) to withdraw the
UHC requirements for characteristic metal wastes (D004-D011); and (2) to allow the
stabilization of characteristic metal wastes with organic concentrations that are an order of
magnitude above the UTS levels and require treatment of metal UHCs to an order of
magnitude above the UTS level.

       The commenter's first 3 issues  argue that the overall impact of the UHC
requirement will force the combustion of metal bearing characteristic waste streams prior to
land disposal. First, there is no conflict with the dilution prohibition on the combustion of
metal-bearing wastes found in 40 CFR 268.3(c). The combustion of hazardous waste codes
listed in 40 CFR 268 Appendix XI is prohibited, unless, at the point of generation the waste
contains hazardous organic constituents or cyanide at levels exceeding the constituent-
specific UTS treatment standards found in 40 CFR 268.48. See 61 FR 33682 June 28,
1996. Since UHCs are defined in 40 CFR 268.2(i) as any constituent in 40 CFR 268.48
which exceeds the constituent-specific UTS treatment standards at 40 CFR 268.48,
application of the UHC requirement to these wastes will not conflict with the dilution
prohibition. Second, characteristic metal wastes with organic UHCs will not necessarily
have to be combusted. An appropriate treatment train can be designed to first treat the
organic UHCs followed by stabilization for the metals. EPA's data, as discussed in the
preamble and in background documents and also as discussed in the next paragraph, shows
that organics can be successfully pretreated by any of the following technologies: air
stripping, steam stripping, chemical  extraction, thermal desorption, or any other
technologies which remove and subsequently either recover or destroy the organics.
Pretreatment for the organics minimizes interferences that may arise in the stabilization

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process for metals. Stripping, i.e., volatilization of organics, can also occur as part of the
metals stabilization process itself so long as harmful organic emissions are captured and
destroyed (for example, through compliance with the requirements of the Subpart CC rules
to control air emissions from the hazardous waste tanks, containers, and surface
impoundments).  See Chemical Waste Management, 976 F. 2d  at 17.

       Third, there is no conflict with the Agency's Waste Minimization and Combustion
Strategy's goal to investigate innovative treatment technologies. The Agency is setting
UTS levels for metals; thus any technology except impermissible dilution can be used to
treat a waste to the UTS levels. The UTS levels provide the regulated community
flexibility in the use of various technologies to meet the numerical standards.  Furthermore,
as discussed in the preamble section and related background documents on achievability of
soil treatments standards, a substantial number of non-combustion technologies have been
identified that can provide  adequate treatment for organics. See especially, the Soil
Treatability Analysis Report Appendix C (April 1998, USEPA) in which data are presented
showing approximately 1,317 out of 2,143 paired soil data points were treated to below the
UTS levels by these non-combustion technologies. The Agency expects that these same
technologies can be used to treat organics in non-soil waste streams as well, and thereby
avoid the need for combustion. In fact, without the complications introduced by varying
soil matrices, it may be that even better performance is achievable for non-soil waste
streams than for contaminated soils.

       To account for those rare cases where wastes cannot be treated to meet the
applicable treatment standards, even if well-designed and well-operated treatment systems
appropriate to waste matrix and constituents are used, or if the treatment technologies are
inappropriate for a waste, EPA established the variance from the treatment standard at 40
CFR 268.44(a) and (h). The petitioner must demonstrate that the waste is significantly
different from the wastes evaluated by EPA in establishing the treatment standard, and the
waste cannot be treated to the level or by the method specified by the treatment standard, or
that such standard or method is inappropriate for the waste. In the situation posed by the
commenter, it would be possible to pursue a treatment variance involving stabilization if,
for some  reason, the non-combustion technologies were properly shown to be unable to
achieve the required level of treatment.

       It should be noted that the Agency is not sure that the problem the commenter
discusses will even exist in but a handful of cases. EPA has analyzed data from its
National Hazardous Waste Constituent Survey to assess the likelihood of organic
underlying hazardous constituents being present above UTS levels in TC metal wastes.
The results of this analysis demonstrate that it is very unlikely that TC metal wastes will
contain organic underlying hazardous constituents in levels sufficient to require    -  -  • •
combustion. Of 181 waste streams examined, only 3 contained organic constituents above
UTS levels.  Of those 3, none were present in levels  sufficiently high to warrant
combustion. Rather, based on the information on non-combustion technologies assembled

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regarding treatment capabilities with contaminated soils (likely a harder to treat matrix), we
would expect that non-combustion technologies would be suitable for treating these 3 waste
streams.

       The commenter is correct in its fourth issue. Petroleum-contaminated media and
debris that fail the TC for waste codes DPI 8 through DQ43 only and are subject to the
corrective action regulations under 40 CFR 280 are solid wastes which are not hazardous
wastes.  See 40 CFR 261.4(b).  However, petroleum-contaminated media and debris which
fail the TCLP for D004-D011 are not exempt at 261.4(b) and will have to treat for any
organic UHCs reasonably expected to be present in the waste. EPA believes the
commenter's concerns are addressed by today's soil-specific treatment standards.  The soil-
specific standards require treatment for those hazardous constituents found in soil at levels
greater than 10 times UTS.  These hazardous constituents must be reduced by 90 % or to 10
times UTS, whichever is higher. The Agency believes these standards are achievable for
soils. The data supporting the alternative treatment standards for soils containing
hazardous wastes are based  on non-combustion technologies, namely biological treatment,
chemical/solvent extraction, dechlorination technologies, soil vapor extraction, soil
washing, stabilization, and vitrification. EPA believes these technologies are feasible
alternatives to the direct incineration of soils. See the Soil Treatability Analysis Report
(April 1998, USEPA)  in this docket. Although the Agency  feels these treatment standards
can be achieved, there may be situations where the minimized threat level is higher than
today's  soil-specific standards.  Thus, in today's rule the Agency is allowing risk-based
variance determinations for  only contaminated soil. The risk-based variance
determinations is evaluated  through the site-specific variance process set out in 40 CFR
268.44(h). In addition, the treatment variance process is still available for soil if the
petitioner can show that their soil cannot be treated to meet the treatment standards based
on the performance of the technologies the Agency considered in establishing the soil-
specific standards or that the application of the soil treatment standards is inappropriate in
that, for example, it would present unacceptable risks to on-site workers.

       In response to the commenter's fifth issue, soils contaminated with RCRA
hazardous wastes that have PCBs as UHCs are eligible for the Agency's soil-specific
treatment standards, which is discussed above.  The data supporting the treatment
standards for PCB soils are based on non-combustion technologies, namely chemical
extraction, dechlorination technologies, thermal desorption and soil washing. EPA believes
these technologies are feasible alternatives to the direct incineration of PCB soils.  For
example, at the Moreau Superfund Site in New York, KPEG dechlorination of topsoil
contaminated with up to 7,013 ppm of PCBs achieved an overall performance efficiency of
98.25 %. Likewise EPA's data show that thermal desorption is highly effective in
decontaminating soil.  The treated soil meeting the provision in 268.49 can be land .
disposed without further treatment.  Other residues from these treatment practices may
require further treatment prior to disposal.  Report identification number IB. See (1)
Final/Proposed BDAT Background Document for Hazardous Soil, August 1993, docket

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#F-93-CS2P-S0599; (2) Soil Treatability Database for the Proposed Land Disposal
Restrictions Rule for Hazardous Soil, docket #F-930CS2P-S0595; (3) Attachment C: Soil
Database Treatability Database Output, docket #F-93-CS2P-S0595.C; and (4) Soil
Treatability Analysis Report (April 1998, USEPA) in the docket to today's rule.

       The Agency believes that these standards are achievable for contaminated soils.
However, as previously explained above, a risk-based determination for only contaminated
soil can be made through the site-specific variance process that is being adopted as part of
the Phase IV final rule.

       The commenter's sixth concern is that a characteristic metal waste with  metal
UHCs will be difficult to treat.   In developing the metal treatment standards, the wastes
with the most difficult to treat metal constituents were treated by high temperature metals
recovery and stabilization technologies.  The Agency's review of the  treatment  data on TC
metal and mineral processing wastes shows that UTS are achievable for the UHCs in waste
characteristic for TC metals (including mineral processing wastes). Thus, treatment using
either HTMR or stabilization is expected to achieve the final metal UTS levels.  It should
be noted that selenium is not being regarded as a UHC since its treatment standard is above
its characteristic level. Thus, a selenium characteristic waste will always be hazardous
unless the selenium concentration is below the characteristic level of 1 mg/L TCLP. The
commenter's example is a D007 contaminated soil. The specific constituent concentrations
reported are in mg/kg TCLP; however the Agency is presuming a typographical error
occurred and the measurement unit should be mg/L TCLP.  As previously stated,
contaminated soils are eligible for today's soil-specific standards, namely 90 % reduction
or 10 times UTS, whichever is higher. It appears from the example that chromium meets
the soil-specific 10 times UTS level. As for selenium, it is not considered a UHC in
characteristic wastes.

       The commenter's first and second approach would be inconsistent with the
Agency's treatment of characteristic wastes. TC metal wastes, like ICR and organic
characteristic wastes, could contain other hazardous constituents at concentrations of
concern. In this regard, EPA again reiterates our position that in the  absence of reliable,
national risk-based levels that achieve the minimized threat requirement of RCRA
3004(m), the technology-based levels remain the best means of determining with any
certainty that the requisite minimization of threats has occurred. Thus, the commenter's
second approach of an order of magnitude increase is not appropriate. The decision to
extend the UHC requirement to TC metal wastes is consistent with the Court's opinion on
the treatment of ignitable, corrosive, and reactive characteristic wastes in Chemical Waste
Management v. EPA. 976 F. 2d at 17 (D.C. Cir.  1992), cert, denied 113 U.S. 1961 (1993).
The Court held that all hazardous constituents in characteristic wastes must meet levels
satisfying the requirements in RCRA 3004(m) before land disposal, and that treatment
standards cannot be achieved by dilution (provided, of course, that treatment standards are
not established below the level at which threats to human health and the environment are

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minimized). (See 59 FR 47987 September 19, 1994).

       Finally, in regards to the stabilization of organic-metal bearing wastes, the LDRs do
not specifically prohibit the use of stabilization technologies to treat nonwastewaters
containing hazardous organic constituents providing there is no impermissible dilution
(including that which may occur through cross-media transfer of hazardous organic
constituents). Subject to the relevant applicability sections, the stabilization process must
occur in units subject to the Agency's rules in Parts 264 and 265 Subpart CC (establishing
air emission standards for control of air emissions from hazardous waste tanks, containers
and surface impoundments) which set out the usual measure of control for such air
emissions. These rules were in some cases specifically tailored to provide flexibility for
stabilization operations where the wastes contained volatile hazardous constituents. See,
e.g., 40 CFR 264.1084.

       The Agency is also considering whether to issue additional  guidance on when
stabilization or solidification of organic-bearing waste is appropriate and when it may
constitute impermissible dilution.  The Agency believes that the commenter's concerns
about stabilization of organic-bearing waste (especially those that contain low UHC organic
concentrations) has been adequately addressed above, but further guidance may prove to be
worthwhile. Again, we note that LDRs do not specifically prohibit the use of stabilization
or solidification to treat nonwastewaters containing hazardous organic constituents.

       We note also that a treatment variance offers an opportunity to comply with LDRs
through development of an alternative standard. If an organic-containing RCRA hazardous
waste, treated by stabilization or solidification alone or in combination with another non-
combustion technology, cannot meet the existing numeric treatment standards, then a
generator or treatment facility may petition for a variance from the treatment standards.
See 40 CFR 268.44(a) and 268.44 (h).  This would also be addressed in any guidance
memorandum that is developed.
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DCN     PH4P056
COMMENTER  Westinghouse
RESPONDER  RC
SUBJECT   UHCS
SUBJNUM   056
COMMENT
       Issue 3:  Rationale for Applying UTS to Toxic Characteristic Metal
       Wastes (D004-DO11 )Reference:  Preamble at Section V.D. 1, page
       43682
       The EPA should clarify what order of treatment is required to
       comply with LDRs when a metal-bearing characteristic waste also has
       an organic UHC.  The EPA has stated in other rulemaking efforts
       that organic removal and destruction must occur first, and the
       stabilization treatment step used to treat the metals must occur
       last. Is this also true for wastes addressed in this rulemaking?
       Does the EPA believe that stabilization of TC metal wastes can be
       used to meet the UHC organic treatment standards?

RESPONSE

       EPA has recommended that in any treatment train the immobilization technologies
should be the last step in the train. The organics should be first separated from the wastes
and then the residuals from this step may be stabilized/solidified. See also 40 CFR section
268.45(a)(3) and (a)(4).

       Furthermore, in regards to the stabilization of organic-metal bearing wastes, the
LDRs do not specifically prohibit the use of stabilization technologies to treat
nonwastewaters containing hazardous organic constituents providing there is no
impermissible dilution (including that which may occur through cross-media transfer of
hazardous organic constituents). Subject to the relevant applicability sections, the
stabilization process must occur in units subject to the Agency's rules in Parts 264 and 265
Subpart CC (establishing air emission standards for control  of air emissions from hazardous
waste tanks, containers and surface impoundments) which set out the usual measure of
control for such air emissions.  These rules were in some cases specifically tailored to
provide flexibility for stabilization operations where the wastes contained volatile
hazardous constituents. See, e.g., 40 CFR 264.1084.

       The Agency is also considering whether to issue additional guidance on when
stabilization or solidification of organic-bearing waste is appropriate and when it may
constitute impermissible  dilution. The Agency believes that the commenter's concerns
about stabilization of organic-bearing waste (especially those that contain low UHC organic
concentrations) has been adequately addressed above, but further guidance may prove to be
worthwhile.  Again, we note that LDRs do not specifically  prohibit the use of stabilization

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or solidification to treat nonwastewaters containing hazardous organic constituents.

       We note also that a treatment variance offers an opportunity to comply with LDRs
through development of an alternative standard. If an organic-containing RCRA hazardous
waste, treated by stabilization or solidification alone or in combination with another non-
combustion technology, cannot meet the existing numeric treatment standards, then a
generator or treatment facility may petition for a variance from the treatment standards.
See 40 CFR 268.44(a) and 268.44 (h). This would also be addressed in any guidance
memorandum that is developed.
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2P4P-00078  EnviroSource Treatment and Disposal Services, Inc. (IDS) (Phase IV
Second Supplemental Proposal)

One area of concern in the proposed rule is the application of Underlying Hazardous
Constituents (UHC) to waste that is both hazardous for toxicity (metals) and regulated for
PCBs under part 761 (TSCA).  Currently, such wastes can be stabilized to meet the
standards applicable to the metal constituents and are subsequently disposed of at a facility
permitted under both RCRA and TSCA. EPA's proposal will effectively prohibit this
approach by requiring the identification of PCBs as a UHC, therefore establishing a
treatment standard for PCBs of 10 ppm (40 CFR 268.48). Similar problems may result with
specific UHC organics that are associated with PCBS, e.g. chlorinated benzenes are
prevalent in PCB oils.

RCRA / TSCA wastes are predominately large volume (5,000 - 10,000 ton) remediation
projects, e.g.. contaminated soil and debris, with typical PCB concentrations from 50 - 600
ppm.  EPA has already established environmental data and health studies to support land
disposal of PCB wastes in properly permitted facilities, and has in fact specifically decided
not to regulate wastes with PCBs less than 50 ppm. By requiring compliance with the
Universal Treatment Standard (UTS) for PCBS, EPA is essentially requiring incineration of
all RCRA/TSCA wastes, a result that is not consistent with EPA's policy that combustion
of large amounts of contaminated media is generally inappropriate. This problem is further
compounded by the limited availability of incineration capacity for media contaminated
with PCBS.

We recommend that EPA establish an exemption from the UHC requirement for wastes
that are regulated under part 761 for PCB and that are hazardous wastes  because they fail
the toxicity characteristic for metal constituents  (D004 -D011). A similar, but more
expansive approach was taken by EPA for waste codes D018 - D043 (See 40 CFR 261.8).

RESPONSE

    The Agency only exempted from the UHC requirement PCB-containing dielectric
fluids that are fully regulated under TSCA and that are hazardous only because they fail the
toxicity characteristic for hazardous waste codes D018 through D043 only.  The Agency
believes that the regulation of these TC organic wastes under TSCA is adequate to protect
human health and the environment. However, for other PCB-containing wastes that are
listed or exhibit a hazardous characteristic (which includes D004 through DO 17) are subject
to all applicable subtitle C standards. See 55 FR 11841 March 29,1990.  The RCRA
regulated constituents in these other PCB-containing wastes may not be adequately
addressed by the TSCA regulations.

    Soil contaminated with PCBs are eligible for the Agency's soil-specific treatment
standards being finalized in today's rule.  These standards require the reduction of

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hazardous constituent concentrations by 90 % with treatment for any given constituent
capped at 10 times the universal treatment standard (UTS).  The data supporting the
alternative treatment standards for soils contaminated with PCBs are based on non-
combustion technologies, namely chemical extraction, dechlorination technologies, thermal
desorption and soil washing. EPA believes these technologies are feasible alternatives to
the direct incineration of soils. For example, at the Moreau Superfund Site in New York,
KPEG dechlorination of topsoil contaminated with up to 7,013 ppm of PCBs achieved an
overall performance efficiency of 98.25 %. Likewise EPA's data show that thermal
desorption is highly effective in decontaminating soil. The treated soil meeting the
provision in 268.49 can be land disposed without further treatment. Other residues from
these treatment practices may require further treatment prior to disposal. Report
Identification No. IB. See (1) Final/Proposed BDAT Background Document for Hazardous
Soil, August 1993, docket #F-93-CS2P-S0599; (2) Soil Treatability Database for the
Proposed Land Disposal restrictions Rule for Hazardous Soil, docket #F-930CS2P-S0595;
(3) Attachment C: Soil  Database Treatability Database Output, docket #F-93-CS2P-
S0595.C; and (4) Soil Treatability Analysis Report (April 1998, USEPA) in this docket to
today's rule.

   The Agency believes that these standards are achievable for contaminated soils.
Although the Agency believes these standards are achievable, there may be situations
where the minimized threat level is higher than today's  soil-specific standards.  Thus, in
today's rule the Agency is allowing risk-based variance determinations for only
contaminated soil.  The risk-based variance determinations is evaluated through the site-
specific variance process set out in 40 CFR 268.44(h). In addition, the treatment variance
process is still available for soil if the petitioner can show that their soil cannot be treated to
meet the  treatment standards based on the performance of the technologies the Agency
considered in establishing the soil-specific standards or that the application of the soil
treatment standards is inappropriate in that, for example, it would present unacceptable
risks to on-site workers.

   Finally, in regards to the stabilization of organic-metal bearing wastes, the LDRs do not
specifically prohibit the use of stabilization technologies to treat nonwastewaters containing
hazardous organic constituents providing there is no impermissible dilution (including that
which may occur through cross-media transfer of hazardous organic constituents). Subject
to the relevant applicability sections, the stabilization process must occur in units subject to
the Agency's rules in Parts 264 and 265 Subpart CC (establishing air emission standards
for control of air emissions from hazardous waste tanks, containers and surface
impoundments) which set out the usual measure of control for such air emissions. These
rules were in some cases specifically tailored to provide flexibility for stabilization
operations where the wastes contained volatile hazardous constituents. See, e.g., 40 CFR
264.1084.

   The Agency is also  considering whether to issue additional  guidance on when

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stabilization or solidification of organic-bearing waste is appropriate and when it may
constitute impermissible dilution.  The Agency believes that the commenter's concerns
about stabilization of organic-bearing waste (especially those that contain low UHC organic
concentrations) has been adequately addressed above, but further guidance may prove to be
worthwhile. Again, we note that LDRs do not specifically prohibit the use of stabilization
or solidification to treat nonwastewaters containing hazardous organic constituents.

   We note also that a treatment variance offers an opportunity to comply with LDRs
through development of an alternative standard. If an organic-containing RCRA hazardous
waste, treated by stabilization or solidification alone or in combination with another non-
combustion technology, cannot meet the existing numeric treatment standards, then a
generator or treatment facility may petition for a variance from the treatment standards.
See 40 CFR 268.44(a) and 268.44 (h). This would also be addressed in any guidance
memorandum that is developed.
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2P42-L1003  Environmental Technology Council

5.  PCBs Should Not Be An Underlying Hazardous Constituent

One area of concern is the application of Underlying Hazardous Constituents (UCHs) to
waste that is both hazardous for toxicity (metals) and regulated for PCBs under 40 CFR
Part 761 (TSCA). Currently, such wastes can be stabilized to meet the standards applicable
to the metal constituents and are subsequently disposed of at a facility permitted under both
RCRA and TSCA.  EPA's proposal will effectively prohibit this approach by requiring the
identification of PCBs as a UHC, therefore establishing a treatment standard for PCBs of
lOppm (40 CFR 268.48).

RCRA / TSCA wastes are predominately large volume (5,000 -10,000 ton) remediation
projects, e.-g. contaminated soils and debris. EPA has already established environmental
data and health studies to support a regulatory exemption for PCBs less than 50 ppm and
permit land disposal of PCB wastes in properly approved facilities. We recommend that
PCBs not be considered an Underlying Hazardous Constituent for TC metal hazardous
wastes, similar to the current approach for DO 18 - D043 hazardous wastes.

RESPONSE
    The Agency only exempted from the UHC requirement PCB-containing dielectric
fluids that are fully regulated under TSCA and that are hazardous only because they fail the
toxicity characteristic for hazardous waste codes DO 18 through D043 only. The Agency
believes that the regulation of these TC organic wastes under TSCA is adequate to protect
human health and the environment. However, for other PCB-containing wastes that are
listed or exhibit  a hazardous characteristic (which includes D004 through DO 17) are subject
to all applicable subtitle C standards. See 55 FR 11841 March 29, 1990. The RCRA
regulated constituents in these other PCB-containing wastes may not be adequately
addressed by the TSCA  regulations.

    Soil contaminated with PCBs are eligible for the Agency's soil-specific treatment
standards being finalized in today's rule. These standards require the reduction of
hazardous constituent concentrations by 90 % with treatment for any given constituent
capped at 10 times the universal treatment standard (UTS). The data supporting the
alternative treatment standards for soils contaminated with PCBs are based on non-
combustion technologies, namely chemical extraction,  dechlorination technologies, thermal
desorption and soil  washing. EPA believes these technologies are feasible alternatives to
the  direct incineration of soils. For example, at the Moreau Superfund Site in New York,
KPEG dechlorination of topsoil contaminated with up to 7,013 ppm of PCBs achieved an
overall performance efficiency of 98.25 %. Likewise EPA's data show that thermal
desorption is highly effective in decontaminating soil.  The treated soil meeting the

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provision in 268.49 can be land disposed without further treatment. Other residues from
these treatment practices may require further treatment prior to disposal.  Report
Identification No. IB. See (1) Final/Proposed BDAT Background Document for
Hazardous Soil, August 1993, docket #F-93-CS2P-S0599; (2) Soil Treatability Database
for the Proposed Land Disposal restrictions Rule for Hazardous Soil, docket #F-930CS2P-
S0595; (3) Attachment C: Soil Database Treatability Database Output, docket #F-93-CS2P-
S0595.C; and (4) Soil Treatability Analysis Report (April 1998, USEPA) in this docket to
today's rule.

   The Agency believes that these standards are achievable for contaminated soils.
Although the Agency believes these standards are achievable, there may be situations
where the minimized threat level is higher than today's soil-specific standards.  Thus, in
today's rule the Agency is allowing risk-based variance determinations for only
contaminated soil.  The risk-based variance determinations is evaluated through the site-
specific variance process set  out in 40 CFR 268.44(h). In addition, the treatment variance
process is still available for soil if the petitioner can show that their soil cannot be treated to
meet the  treatment standards based on the performance of the technologies the Agency
considered in establishing the soil-specific standards or that the application of the soil
treatment standards is inappropriate in that, for example, it would present unacceptable
risks to on-site workers.

   Finally, in regards to the  stabilization of organic-metal bearing wastes, the LDRs do not
specifically prohibit the use of stabilization technologies to treat nonwastewaters containing
hazardous organic constituents providing there is no impermissible dilution (including that
which may occur through cross-media transfer of hazardous organic constituents).  Subject
to the relevant applicability sections, the stabilization process must occur in units subject to
the Agency's rules in Parts 264 and 265 Subpart CC (establishing air emission standards
for control of air emissions from hazardous waste  tanks,  containers and surface
impoundments) which set out the usual measure of control for such air emissions. These
rules were in some cases specifically tailored to provide flexibility for stabilization
operations where the wastes contained volatile hazardous constituents. See, e.g., 40 CFR
264.1084.

   The Agency is also considering whether to issue additional guidance on when
stabilization or solidification of organic-bearing waste is appropriate and when it may
constitute impermissible dilution. The Agency believes that the commenter's concerns
about stabilization of organic-bearing waste (especially those that contain low UHC organic
concentrations) has been adequately addressed above, but further guidance may prove to be
worthwhile.  Again, we note that LDRs do not specifically prohibit the use of stabilization
or solidification to treat nonwastewaters containing hazardous organic constituents.

   We note also that a treatment variance offers an opportunity to comply with LDRs
through development of an alternative standard. If an organic-containing RCRA hazardous

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waste, treated by stabilization or solidification alone or in combination with another non-
combustion technology, cannot meet the existing numeric treatment standards, then a
generator or treatment facility may petition for a variance from the treatment standards.
See 40 CFR 268.44(a) and 268.44 (h). This would also be addressed in any guidance
memorandum that is developed.
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DCN                                      PH4P091
COMMENTER         FMC
RESPONDER           AC
SUBJECT                                 VAND
SUBJNUM             091
COMMENT   VIII. EPA Needs to Clarify that the UTS for TCLP Wastes Do Not
      Include  Vanadium or Zinc Similar to what EPA did in the Phase II
      regulations /59 for the previous land disposal restricted
      characteristic wastes, EPA needs to clarify in the final Phase
      IV regulations and in the table associated with 40 CFR 268.48
      that vanadium and zinc are not applicable underlying hazardous
      constituents to TCLP wastes.

RESPONSE

   The Agency agrees with the commenter that vanadium and zinc are not UHCs in
characteristic wastes. Currently, vanadium is regulated in two listed wastes ~ PI 19 and
PI20, and zinc  is regulated in K061  wastes. The Agency will clarify this in the Phase IV
final rule.
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DCN    PH4P016
COMMENTER UNIVERSAL FOREST PRODUCTS
RESPONDER JL
SUBJECT   WOOD2
SUBJNUM   016
COMMENT
    RECLAMATION AND OTHER QUESTIONS ELIMINATED
    Under current regulation, a material which is recycled without reclamation is
    excluded from the definition of solid waste. This is applicable to a huge segment
    of the wood treating industry. It represents a potential point of disagreement
    between the Agency and the industry. It may be responsible for some of the
    confusion which currently surrounds this issue both in the regulatory
    community and regulated community. Recently, discussions have begun
    between AWPI and the Agency to attempt to clarify this point.  To date, nothing
    has come of these discussions to give guidance to industry or regulators and it is
    still a matter of "enforcement discretion."

    Another question has arisen concerning the impact of this material on a plant's
    generator status. A fairly detailed understanding of RCRA is required to realize
    that this material does not impact a facility's generator status. However,
    significant segments of both regulators and industry have not understood this
    point and mistakenly concluded that all wood treaters must be large quantity
    generators regardless of the amount of waste they generate. Again, AWPI is
    pursuing this point with the Agency and attempting to clarify the point.

    Moving forward with this exclusion will eliminate difficult questions from a
    wood preserving facility's efforts to comply with RCRA. It will allow both the
    industry and regulators to focus on meaningful compliance issues rather than
    terminology/accounting issues with no environmental benefit.

RESPONSE

       The commenter's remarks on reclamation  and other questions seem to suggest
that much of the industry's wastewaters are exempt from RCRA regulation because
they are recycled without reclamation. The Agency rejects this argument, as it has in
the past, because the wastewaters and spent solutions must be purified or filtered before
they can be reused. See 55 FR 5045a-50 (Dec. 6,  1990). Since EPA does not agree that
these materials are recycled in a way that takes them outside of RCRA jurisdiction, it
does not agree that generators can exclude them from computations of the amount of
hazardous waste that they produce. However, any plant qualifying  for today's
exclusion will likely see a significant reduction in the quantity of hazardous waste that
it is required to report.
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                DCN     PH4P016
                COMMENTER UNIVERSAL FOREST PRODUCTS
                RESPONDER JL
                SUBJECT  WOOD2
                SUBJNUM  016
                COMMENT
                SUMMARY
                   The proposed exclusion has only one affect: it clarifies that a material which is
                   beneficially used and not part of the waste disposal problem is not a solid waste.
                   Materials which are solid wastes from wood treating operations are subject to
                   the listings and are properly managed in accordance with existing regulations.
                   The Agency's ability to require subpart W drip pads and take enforcement action
                   if such devises are not used in accordance with the regulations is maintained.
<-
'                RESPONSE
                      The commenter seems to suggest that EPA is making a general statement about
                the regulatory status of all secondary materials that are beneficially used and not part of
                the waste disposal problem.  This is not the case. Today's exclusion is limited to wood
                preserving wastewaters prior to reclamation that are destined for recycling at
                waterborne wood preserving plants, provided that they meet certain conditions.  The
                Agency agrees with the commenter that all solid wastes generated by the industry that
                are RCRA hazardous wastes are subject to regulation and must be managed properly.
                Compliance with Subpart W drip pad standards is one of the conditions placed upon
                today's exclusion.
                DCN     PH4P016
                COMMENTER  Universal Forest Prod.
                RESPONDER  SB
                SUBJECT   WOOD2
                SUBJNUM  016
                COMMENT
                      All wood treating plants use water in their process. The majority
                      of the industry utilizes "water-borne" preservative systems in
                      which the treating solution injected into the wood products is 97%
                      to 99% water. Such operations are huge net users of water. Even at
                      minimal production levels, a water-borne treating plant will use
                      more water than would ever be collected on a subpart W drip pad.
                      Every gallon of water collected on the drip pad and returned to the
                      treatment process is one less gallon of fresh water the plant will

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       draw from city water supply or an on-site well.
       Statistics compiled by the American Wood Preservers Institute
       (AWPI) estimate that water-borne preservatives accounted for 78.4 %
       of the wood treated in the US in 1994. Using the AWPI production
       figures, these plants would have consumed on the order of 1
       billion gallons of water.
       CWA regulations do not allow a water-borne treating plant to
       discharge wastewater via an NPDES permit or to a POTW. Another way
       of pointing out how essential it is that a water-borne treating
       plant be able to use water collected on a drip pad is to consider
       what would happen if the water could not be reused. In addition to
       using more fresh water as previously described, this  wastewater
       would need to be disposed of as hazardous waste. This is a cost
       which even an enclosed treating plant (i.e., no precipitation
       collected on the drip pad) could not bear. This would also be
       contrary to the goal shared by both industry and EPA to minimize
       the amount of waste generated and shipped to offsite disposal
       facilities.
       For those operations which do not use water to make treating
       solutions, water is still an essential part of their process. Water
       is used for cooling pumps and surface condensers and may also be
       used to generate steam directly (i.e. feed water to a boiler) or
       indirectly (i.e., heated with closed steam coils in a closed
       vessel). Many of these plants will generate more water than can be
       used in the process. This is truly a wastewater stream and is
       appropriately managed within the existing regulations of RCRA and
       CWA. The proposed exclusion does not affect the characterization or
       management of this wastewater.

RESPONSE

       EPA believes that these data on the economics of recycling wastewaters and
spent solutions from drip pads at water-borne preserving plants help demonstrate why
the process would not be economically viable if it did not use reclaimed materials.
EPA, however, did not evaluate oil-borne plants and is not prepared to take final action
on them today.  See the response to comment PH4P039.
DCN     PH4P016
COMMENTER  Universal Forest Prod.
RESPONDER  SB
SUBJECT   WOOD2

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SUBJNUM   016
COMMENT
       Subpart W is a comprehensive regulatory framework which ensures
       that the water under discussion is not part of the waste disposal
       problem. Examples of problems at wood treating facilities prior to
       the subpart W regulations or at facilities not in compliance with
       subpart W regulations are not relevant. By definition, a facility
       in compliance with subpart W is preventing release of this
       material. If material is released, it becomes a simple matter
       of enforcement and is not affected by how the Agency characterizes
       material which is not released but is conveyed to the wood treating
       process.

RESPONSE

       EPA agrees that compliance with the Subpart W standards along with the other
conditions imposed in the final rule provides sufficient assurance that the materials will
be handled to minimize loss. (See §260.3 l(b)(3)).  They also help ensure that the
wastewaters and spent solutions will not become "part of the waste disposal problem."
DCN      PH4P016
COMMENTER  Universal Forest Prod.
RESPONDER SB
SUBJECT   WOOD2
SUBJNUM   016
COMMENT
       Two points are addressed in this section. First, the Agency's
       authority to require subpart W drip pads is not diminished by
       clarifying that material conveyed to the wood preserving process is
       not a solid waste. Second, the Agency's ability to take
       enforcement action against an individual with a faulty subpart W
       pad (e.g., a pad which leaks) is not diminished.
       From the original conversations between the Agency and the Wood
       Treating Industry, the agency was concerned that if material on the
       subpart W drip pad was not deemed a solid waste, they would not be
       able to require compliance with subpart W. However, it is
       not necessary to consider the material which is ultimately conveyed
       to the treating process as solid waste because there is some
       material which is a solid waste and is not conveyed back to
       the treating process. Examples of such material are wood dust or
       chips, dirt, debris, or even stains of preservative. These

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       materials are wastes which are managed on the subpart W drip pad
       for up to 90 days prior to being drummed or similarly managed as
       allowed in 40 CFR 262. They do not flow freely back to collection
       devices; rather they must be periodically washed or removed from
       the pad. This removal may happen on an hourly, daily, or monthly
       basis, but for some time they are managed on the pad and most
       importantly, they are waste materials. They are entirely different
       from the water being considered for this exclusion.
       The Agency's ability to take enforcement action against an
       individual with a faulty subpart W pad (e.g., a pad which leaks) is
       not diminished. If water is used in the treating process, it is not
       a waste. However, if water is discharged (other than a permitted
       discharge), spilled, or leaked from a drip pad, sump or any other
       part of the treating process, it is a solid waste. By virtue of the
       wood preserving listings (F032,  F034, F035) it is a hazardous
       waste. The ability of the Agency to take action based on such an
       occurrence is not affected by the characterization (i.e., as solid
       waste or as being excluded from solid waste) of the material which
       is properly conveyed to the treating process.

RESPONSE

       EPA agrees that the presence of "non-wastewater" materials may require
compliance with Subpart W  standards at some facilities. However, EPA believes that it
needs to ensure that Subpart W applies at all facilities.  It has promulgated a condition
to ensure that Subpart W will continue to apply.  EPA has also promulgated a condition
to ensure that waters released to the environment continue to be subject to the
hazardous waste listings.
DCN     PH4P016
COMMENTER  Universal Forest Prod.
RESPONDER  SB
SUBJECT   WOOD2
SUBJNUM   016
COMMENT
       While no regulatory language was proposed, discussions with the
       Agency indicate they would welcome recommended language. One very
       simple regulatory change which could accomplish the objective
       described by the Agency is modifying the current exclusion at 40
       CFR 261.4 (b)(9) from "have been reclaimed and are reused" to "are
       reused" so that it reads:

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       "(I) Spent wood preserving solutions that are reused for their
       original intended purpose; and(ii) waste-waters from the wood
       preserving process that are reused to treat wood."
       Preamble language should be included to describe that if a
       material is used without reclamation that it is excluded from the
       definition of solid waste by 40 CFR 261.2 (e)(l)(ii).

RESPONSE

       EPA does not agree that the language offered by the commenter would be
sufficiently protective.  EPA believes that the conditions included in the final rule are
necessary to ensure that the materials are handled to minimize loss and to prevent them
from becoming part of the waste disposal problem.
DCN     PH4P039
COMMENTER  AWPI
RESPONDER SG
SUBJECT   WOOD2
SUBJNUM   039
COMMENT
       I.  INTRODUCTION
   The American Wood Preservers Institute ("AWPI" or "Institute") and its
   member companies are pleased to submit comments in response to the United
   States Environmental Protection Agency's ("EPA" or "Agency") Proposed
   Rulemaking and Request for Comment on Land Disposal Restrictions ("LDRs")
    Phase IV: Issues Associated With Clean Water Act Treatment Equivalency,
   and Treatment Standards for Wood Preserving Wastes and Toxicity
   Characteristic Metal Wastes under Subtitle C of the Resource Conservation and
   Recovery Act ("RCRA").  AWPI is the national trade association representing
   the wood-preserving industry. Founded in 1921, the Institute's members include
   manufacturers of treated-wood products; registrants of wood-preserving
   pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide
   Act ("FIFRA"); suppliers of raw materials and equipment; and providers of
   allied services (e.g., environmental engineering and consulting firms). Wood
   preservers who employ pentachlorophenol, creosote,  or inorganic arsenical
   formulations are directly and materially affected by regulations governing the
   management and disposal of hazardous waste  established under RCRA.

       II.  BACKGROUND
   Congress amended RCRA in 1984 to require the EPA to abolish the land
   disposal of untreated hazardous wastes.  The Hazardous and Solid Waste

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Amendments ("HSWA") also sought to protect human health and the
environment by limiting the land disposal of treated hazardous wastes to certain
specially designed waste units.  The law requires EPA to prohibit the land
disposal of hazardous wastes "unless. ..it has been demonstrated to the [Agency]
Administrator, to a reasonable degree of certainty, that there will be no
migration of hazardous constituents from the disposal unit or injection zone for
as long as the wastes remain hazardous."
In addition, Congress required EPA to establish "levels or methods of treatment,
if any, which substantially diminish the toxicity of the waste or substantially
reduce the likelihood of migration of hazardous constituents from the waste so
that short-term and long-term threats to human health and the environment are
minimized."  Wastes treated to the EPA-promulgated levels or by the
Agency-approved technology may be disposed of on the land so long as the
disposal facility meets certain minimum technical standards.
To implement the land-disposal  restriction program, the Agency has established
treatment standards ~ known as "best demonstrated available technologies"
("BDAT") ~ for listed and characteristic wastes. A technology is
"demonstrated" if it is operating at a full-scale facility known to be treating the
restricted waste or a similar waste. It is "available" if it is the best technology
commercially obtainable on the  open market.
EPA has expressed the BDAT as specified treatment technologies or as
concentrations of hazardous constituents in the waste extract.  When the BDAT
for a waste is a numerical standard, any treatment technology may be used to
attain the required level; when the BDAT is a specific technology, only that
technology may be used.  The Agency frequently has declared its preference for
numerical performance standards rather than specific treatment methods or
technologies in order to provide the maximum degree of flexibility for industry
to meet the standards and develop innovative treatment technologies.
Owners or operators of facilities that generate a hazardous waste must determine
whether it is subject to the LDR regulations. They must identify all applicable
EPA waste codes and treatment  standards, determine the regulated hazardous
constituents  and their concentrations in the untreated waste, and identify the
treatment standards or concentration levels. These determinations may be made
based upon knowledge of the waste, a total waste analysis, or application of the
toxicity characteristic leaching procedure ("TCLP") test to the waste extract.

    III.  THE WOOD-PRESERVING INDUSTRY
Wood is treated by forcing the preservative into the cells of the wood.
Typically, this is accomplished with high pressure in a steel treating cylinder.
Untreated wood is placed on tram cars, which are inserted into the cylinder.
Each batch of wood is called a "charge." The door to the cylinder is sealed and
a vacuum is  applied to remove excess air and water from the cylinder and the
cells of the wood. The preservatives are then pumped into the cylinder and

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pressure is applied to force the chemical into the wood. After sufficient
pressure is applied for a given time, the pressure is released from the cylinder,
the cylinder is drained, and a final vacuum is applied to remove excess
preservative.  (The amount of pressure applied and the length of treatment time
depend upon the size and species of the wood, the use to which the final product
is to be put, and other factors. Treating standards are established by the
American Wood-Preservers' Association.)
Following treatment, the charge is removed from the cylinder. Excess preservative
is collected on a Subpart W drip pad adjacent to the cylinder. The drip  pad, an
engineered, bermed, free-draining device that is built to EPA specifications,
contains and collects preservative drippage, if any, along with wastewaters (wash
water, rain water, snow) that may accumulate on the pad.
The spent formulation and wastewaters are returned to the process through a
sump and piping. Wood-preserving thus involves the application of
restricted-use pesticides followed by the recovery and beneficial reuse of
secondary materials that might otherwise become a burden on the environment
through the use of traditional off-site waste-disposal methods.
On December 6, 1990, the Agency adopted a final RCRA regulation that listed
as hazardous three waste streams generated by the wood-preserving industry.
The rule listed wastewaters, process residuals, preservative drippage, and
discarded spent formulations from wood-preserving  processes at facilities that
currently or formerly used chlorophenolic formulations (waste code F032),
facilities that currently use creosote formulations (waste code F034), and
facilities that currently use inorganic preservatives containing arsenic or
chromium (waste code F035). EPA subsequently entered into an agreement that
requires the Agency to promulgate a final BDAT regulation  for F032, F034, and
F035 wastes by March 31, 1994.
There are additional wastes from wood-preserving operations listed as
hazardous under RCRA. They are K001  (bottom sediment sludge from the
treatment of wastewaters from wood-preserving processes that use creosote or
pentachlorophenol); U051 (discarded creosote); and  F027 (discarded
pentachlorophenol).  In addition, wastes containing arsenic (D004) and
chromium (D007) may be characteristically hazardous.
The Office of Solid Waste (OS W) has published a technical  correction to the
December 6,1990, regulation listing F032, F034, and F035 waste streams as
hazardous under RCRA. The OSW notice explains that wood-preserving
wastewaters (including cooling tower makeup waters, vacuum pump seal water,
and scrubbing water) containing spent preservatives  will not be subject  to
Subtitle C regulations after those waters are reclaimed and reused at the plant.
Subtitle C of RCRA excludes from the definition of "solid waste" only  those
materials that are "recycled" by being used or reused in a manufacturing process
without first being reclaimed. Materials that must be "reclaimed" prior to reuse
are "solid wastes" until reclamation is complete. When promulgating the final

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    listing rule, EPA maintained that preservative drippage from wood-preserving
    operations is a solid waste until it can be reclaimed by filtering or other means.
    EPA has concluded, however, that spent wood preservatives are no longer
    hazardous wastes after they are returned to the production process.

    The exclusion [from Subtitle C] applies after the spent preservative solutions are
    reclaimed. It was the Agency's intent to also exclude wastewaters containing
    spent preservatives when they are reclaimed and reused at the plant to treat
    wood.

    EPA also has proposed a rule under the Pollution Prevention Act of 1990 that
    correctly recognizes that the recovery system need not be entirely enclosed in
    order to return usable secondary materials to the production process while
    reducing the amount of hazardous waste generated at a facility.  Finally, wood
    preservatives that drip from a charge of freshly treated wood in the process area
    and that are collected and beneficially reused in the manufacturing process are
    never reported as a "release to the environment" under the Emergency Planning
    and Community Right-to-Know Act of 1986 because they are collected and
    contained in a RCRA-regulated, EPA-approved conveyance, the drip pad.

    IV. EXCLUSION FOR RECYCLED WOOD PRESERVING PROCESS
    WASTEWATERS

    EPA has asked the wood preserving industry to supply information on a
    potential industry-wide variance for reclaimed wastewaters.  The Agency has
    indicated that it will consider industry-wide action on wood processing
    production wastewaters, provided the industry provides adequate information
    that the reclamation operation is an essential part of production, and that the
    secondary materials being reclaimed are not likely to be a part of the waste
    disposal problem.

       Most wood preserving materials are not discarded but are
       beneficially reused in the manufacturing process.  As recycling
       is a key element of the wood preserving process, recoverable
       wood preservative drippage, rainwater, and washwater do not
       leave the system until these materials are intended for discard.
       Therefore, EPA's policy of designating non-waste materials that
       are maintained within the process as "generated hazardous waste"
       is particularly onerous and an undue burden on this industry.

RESPONSE

       The Agency appreciates the commenter's remarks concerning the August 22,

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1995 Federal Register, in which EPA discussed the possibility of creating the exclusion
being finalized today.  At that time, the Agency also requested comment from the
industry on the extent to which the wood preservers could demonstrate on an industry-
wide basis that reclamation of its wastewaters could meet the eight variance criteria
under §260.3 l(b). EPA responded to many of the commenter's remarks in the
preamble to the proposed exclusion in the May 12, 1997 Federal Register. EPA agrees
with the commenter that it is useful to promote the recycling and reuse of these
materials, so long as this does not contribute to waste disposal problems. The
conditions imposed  on the final rule are intended to ensure that these materials do not
become part of the waste disposal problem.
DCN     PH4P039
COMMENTER  AWPI
RESPONDER  SG
SUBJECT  WOOD2
SUBJNUM  039
COMMENT  EPA can grant requests for a variance from classification as
       solid waste those materials that are reclaimed and then reused
       as feedstock within the original primary production process in
       which the materials were generated. This determination is based
       on the following criteria: i.    How economically viable the
       production process would be if it were to use virgin materials,
       rather than reclaimed materials; ii.     The prevalence of the
       practice on an industry-wide basis; iii.   The  extent to
       which the material is handled before reclamation to minimize
       loss; iv.    The time periods between generating the material
       and its reclamation and between reclamation and return to the
       original primary production process; v.    The location of
       the reclamation operation in relation to the production process;
       vi.    Whether the reclaimed material is used for the purpose
       for which it was originally produced when it is returned to the
       original process, and whether it is returned to the process in
       substantially its original form; vii.    Whether the person
       who generates the material also reclaims it; viii.
       Other relevant factors. Accordingly, AWPI submits the following
       comments in support of the Agency proposal to exclude materials
       collected on a Subpart W drip pad and conveyed to the wood
       preserving process from classification as a solid waste: 1.
       How economically viable the production process would be if it
       were to use virgin materials, rather than reclaimed materials.
       The recoverable materials used in the wood treating production

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process are preservative, drip pad washdown water, and
precipitation. All wood preserving plants use water in the
treating process. Waterborne plants are large net users of
water, consuming approximately one billion gallons of water in .
1994. The treating solution is 97 to 99 percent water.
Approximately 78.4 percent of the wood treated in the United
States is treated in waterborne plants. Oilborne processes use
water for cooling pumps, surface condensers and generating steam
directly (i.e., feed water to a boiler) or indirectly (i.e.,
heated with closed steam coils in a closed vessel).  These
plants can reuse up to 100 percent of the water. Treating plants
would be significantly impacted if required to  use virgin
materials rather than reclaimed materials.  The plants would
have to purchase the fresh water and preservative, adding
substantial cost to the operation. In addition, each plant
would have to dispose of their wastewater and recovered
preservative. This is where the most dramatic impact of using
virgin materials would be felt. For example, in one year,
waterborne treating plants in Oregon have used between 8 MM to
16 MM pounds of water collected on the Subpart W drip pad. This
water was reported as generated hazardous waste. To have  used
virgin materials would have created an additional 8 MM to  16 MM
pounds of wastewater requiring disposal.  This represents a
potential cost for "wastewater" disposal of over $375,000 per
year to facilities that currently reuse every drop of water
collected on the pad. 2.   The prevalence of the practice on  an
industry-wide  basis. Reuse of materials is the standard in the
industry for the purposes of both waste minimization and
economics.  With the exception of certain existing oilborne
plants, the industry is subject to zero discharge under the
Clean Water Act. All waterborne plants and many oilborne plants
must employ methods to reuse these materials or be forced to
manage them as a hazardous waste. 3.  The extent to which the
material is handled before reclamation to minimize loss. In  the
wood treating  process, wood preservative and water are captured
on a Subpart W drip pad and conveyed from the  drip pad sump into
a closed-loop piping system for reuse. In a waterborne process,
the materials are returned directly to the work tank for
immediate reuse.  In the oilborne plants, materials flow
directly from the drip pad sump to the primary oil-water
separator where they are commingled with process waters.  At
this stage, these materials are  indistinguishable from other
process  waters. The primary oil-water separator recovers

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approximately 90 percent of the preservative with secondary
oil-water separation after polymer addition recovering the
remaining 10 percent. Almost all of the reclaimed preservative
can be pumped directly back into the work tank for reuse without
further reclamation. Production process water is pumped from
either the primary oil-water separator or the secondary
oil-water separator and reused. The handling from this process
is minimal. The losses are nonexistent. EPA refers to releases
from a drip pad as being clearly a part of the waste management
problem and cites previous damage cases.  Examples of problems
at wood treating facilities prior to the Subpart W regulations
or at facilities not in compliance with Subpart W regulations
are not relevant. 4.  The time periods between generating the
material and its reclamation and between reclamation and return
to the original primary production process. In both oilborne and
waterborne plants, when the recoverable material is generated,
it is immediately captured on a Subpart W drip pad and conveyed
from the drip pad sump into a closed-loop reclamation  system.
In a waterborne plant, the materials are immediately available
for reuse. In an oilborne plant, the preservative becomes
available for use from the primary oil-water separator within 24
hours. This is 90 percent of the recovered preservative. The
other 10 percent becomes available from the secondary oil-water
separator within an additional 24 hours. The water is available
immediately for reuse after settling in the primary oil-water
separator or the secondary oil-water separator. Because this is
a dynamic system, both recovered preservative and water are
available almost immediately for return to the original
production process. 5.  The location of the reclamation
operation in relation to the production process. In both
oilborne and waterborne processes, the reclamation operation is
located within, and is an integral component of, the production
process area.  6.   Whether the reclaimed material is used for
the purpose for which it was originally produced when it is
returned to the original process, and whether it is returned to
the process in substantially its original form. In both oilborne
and waterborne processes, the reused preservative is returned to
the process for the purpose for which it was originally
produced: to preserve wood. In both processes, the reused
materials are  returned to the process in substantially its
original form. Waterborne plants reuse the preservative and
water directly from the drip pad sump. Oilborne plants  use
gravity separation to reclaim preservative.  At any time during

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       the separation process, the reclaimed preservative and water may
       be introduced back into the original production process. 7.
       Whether the person who generates the material also reclaims it.
       At both waterborne and oilborne plants, the generator reclaims
       both preservative and water on-site for reuse in the production
       process. 8.  Other relevant factors. Subpart W is a
       comprehensive regulatory framework which ensures that the
       materials under discussion are not part of the waste disposal
       problem. By definition, a facility in compliance with Subpart W
       is preventing release of this material. If material is
       released, it becomes a simple matter of enforcement and is not
       affected by how the Agency characterizes material which is
       maintained within the wood treating process and not released. In
       previous dialogue between the EPA and the wood treating
       industry, the Agency expressed concern that if material on the
       Subpart W drip pad was not deemed a solid waste, they  would lose
       regulatory authority to require compliance with Subpart W.  AWPI
       disagrees. The Agency's authority to require Subpart W drip
       pads is not diminished by clarifying that material maintained
       within the wood preserving process is not a solid waste. If
       there is any drippage, there will be some materials that are not
       conveyed to the treating process.  These materials are solid
       wastes (e.g., process residuals such as like wood dust, chips,
       dirt, and debris) and are appropriately managed as hazardous
       waste on the Subpart W drip pad. They do not flow freely back to
       collection devices; rather they must be periodically washed or
       removed from the pad.  Therefore, EPA is fully justified in
       requiring a Subpart W drip pad to manage these ancillary waste
       materials. Further, any release of a material meeting the
       definition of F032, F034, and/or F035 constitutes a release of a
       hazardous waste. The Agency's ability to initiate enforcement
       action remains unaffected by a decision to exclude reused
       materials from the definition of solid waste. By reusing the
       preservative and waters in the original production process, the
       wood preserving industry is able to minimize losses, waste,
       energy consumption, and procurement and disposal costs. The
       reused materials are an essential part of production and are not
       a part of the waste disposal problem. It is clear from the  above
       that the wood preserving industry meets the requirements for an
       industry-wide variance, and thus a conditional exclusion, for
       the reclamation of process wastewaters.

RESPONSE

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       EPA agrees with the commenter that the recycling of collected wastewaters is
an essential part of the production process at waterborne wood preserving plants and
said so tentatively in the May 12, 1997 Federal Register ("the recycling of wastewaters
and spent wood preserving solutions is essential to the financial well being of
waterborne wood preserving plants." (62 FR 26056)).  The commenter states that
oilborne plants "can reuse up to 100 percent of [their] water." As we indicated in the
preamble to today's final rule, we do make a distinction between the manner in which
wastewaters and spent solutions are recycled at waterborne and oilborne facilities. At
the time of proposal, EPA intended to create an exclusion only for plants using water
borne preservatives. See, for example, the discussion at 63 FR 26057, col. 1.  EPA did
not evaluate oil borne plants at the time. It is EPA's general understanding that plants
which use oil borne preservatives do not recycle wastewaters and spent solutions by
using them in the work tank to treat wood. Rather, they reuse these wastewaters in
cooling systems, vacuum seals, and other devices. EPA wants to limit today's
exclusion to materials that are reused for their original intended purpose~the treatment
of wood. EPA has not had time to investigate the jurisdictional and factual issues posed
by the use of wastewaters for other, more ancillary, purposes. Consequently, EPA is
not expanding the exclusion beyond the proposal. It applies only to waterborne
processes.

       EPA agrees that the reuse of wastewaters and spent solutions is standard at
waterborne plants, and stated this in the May 12,1997 proposed rule (63 FR 26056).
EPA believes that compliance with the Subpart W standards - along with the other
conditions imposed on the final rule - provides sufficient assurance that materials will
be handled to minimize loss and to prevent them from becoming part of the waste
disposal problem. EPA believes that information on releases from pads that did not
meet the Subpart W standards shows that Subpart W standards are needed. Again, this
exclusion applies only to waterborne plants.

       EPA agrees with the commenter that there is very little time between the
generation of wood preserving wastewaters and spent solutions and reclamation of
those materials. As was stated in the May 12,1997 proposed rule (63 FR 26057),
"EPA believes that the industry also meets §260.3 l(b)(4) criteria concerning the
amount of time between generation and reclamation and reclamation and return to the
primary production process." Although it is not material to a discussion of today's
exclusion, it is important to point out that we do not agree with the commenter that
these materials are "conveyed from the drip pad sump into a closed-loop reclamation
system." This type of recycling operation does not meet the definition of closed-loop
recycling at 40 CFR 261.4(a)(8)(i). However, the enclosure of portions of this system
also helps to assure that the materials are handled to minimize loss. -Although oilborne
plants may also reclaim their secondary materials without delay, we do not consider the
manner in which these plants return these materials to  the production process to be
consistent with the condition placed upon today's exclusion requiring that wastewaters

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and spent solutions be reused "in the production process for their original intended
purpose."

       EPA agrees with the commenter that the reclamation operation at wood
preserving plants is located within the production process area. The Agency also agrees
that waterborne wood preserving operations return wastewaters and spent solutions to
the process in substantially their original form to be reused for their original intended
purpose. As was stated above, it is EPA's general understanding that plants which use
oilborne preservatives do not recycle wastewaters and spent solutions by using them in
the work tank to treat wood. Rather, they reuse these wastewaters in cooling systems,
vacuum seals, and other devices. EPA wants to  limit today's exclusion to materials that
are reused for their original intended purpose—the treatment of wood. EPA has not had
time to investigate the jurisdictional and factual issues posed by the use of wastewaters
for other, more ancillary, purposes.  Consequently, EPA is not expanding the exclusion
beyond the proposal.  It applies only to waterborne processes.   EPA agrees with the
commenter that the wastewaters and spent solutions are reclaimed on-site by the
generator. In order to qualify for today's exclusion, these materials must reused on-site
at water borne plants in the production process for their original intended purpose.
DCN     PH4P039
COMMENTER  AWPI
RESPONDER  SG
SUBJECT  WOOD2
SUBJNUM   039
COMMENT   ALTERNATIVE POLICY There is a more functional solution which
       could accomplish the objective described by the Agency.  EPA
       should promulgate a regulation to exempt reused wood preserving
       process waters and recoverable preservative from designation as
       a solid waste (and hence a hazardous waste) unless these
       materials are discarded. This means amending the current
       exclusion at 40 CFR261.4(a)(9) to read: "(i) Spent wood
       preserving solutions that are reused for their original intended
       purpose; and (ii) Wastewaters from the wood preserving process
       that are reused to treat wood." Preamble language should be
       included to describe that if a material is used without
       reclamation that it is excluded from the definition of solid
       waste by 40 CFR 261.2(d)(l)(ii). When discarded, all of the
       current regulatory controls would remain to ensure that
       discarded materials are managed appropriately.  The
       administrative burdens on the industry, the EPA and the states
       would be eased, and the industry's extensive environmental
       recycling efforts would be recognized.

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RESPONSE

       EPA does not agree that the language offered by the commenter would be
sufficiently protective. EPA believes that the conditions included in the final rule are
necessary to ensure that the materials are handled to minimize loss and to prevent them
from becoming part of the waste disposal problem.
DCN     PH4P048
COMMENTER  Chemical Waste Management
RESPONDER  SB
SUBJECT  WOOD2
SUBJNUM   048
COMMENT
       The Agency is providing the wood preserving industry an
       opportunity to provide information that could result in an industry
       wide solid waste exclusion for wood preserving wastes that are
       reclaimed and returned to the wood preserving process.
       CWM is concerned with the granting of this industry wide
       exclusion.  CWM believes that the logic followed by the Agency in
       the Wood Preserving Final Rule (55 Fed. Reg.  at 50,450) still
       applies in this situation.  Under the current solid waste
       identification rules spent materials that must be reclaimed are
       defined as solid wastes (See 40 CFR 261.2(c)(3)). CWM is also
       concerned that the current processes used in the wood
       preserving industry do not meet the terms of the closed-loop
       exclusion (See 40 CFR 261.4(a)(8)), and that any exclusion should
       follow the Agency's current variance provisions that would grant a
       case-by-case variance to individual facilities (40 CFR 260.30 and
       260.31).
       The Agency indicates that EPA will consider a conditional
       exclusion if the wood preserving industry can meet the criteria in
       40 CFR 261.3 l(b).CWM believes that based on specific criteria in
       40 CFR 260.3 l(b) that a conditional exclusion  is not warranted
       without information from all Wood Preserving operations that
       indicate that each facility meets the criteria in §260.3 l(b).

RESPONSE

       EPA believes that, if the conditions specified in the final rule are met, the spent
waters and preservative solutions merit an exclusion from the definition of solid waste
even though they must undergo  reclamation, and even though the process is not a
"closed loop" reclamation process under 40 CFR 261.4(a)(8). EPA believes that the

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general data it has collected, together with the conditions imposed, provide sufficient
assurance that human health and the environment will be protected, the materials will
be handled to minimize loss and to not become part of the waste disposal problem.
EPA does not believe it is necessary to evaluate every plant individually under 40 CFR
260.30 and 260.31
DCN     PH4P058
COMMENTER  JH BAXTER
RESPONDER SB
SUBJECT   WOOD2
SUBJNUM   058
COMMENT
       II. Exclusion for Recycled Wood Preserving Process Wastewaters
       In its proposal EPA has asked the wood preserving industry to
       provide information that could form the basis for an industry-wide
       variance to the current classification of production wastewaters as
       solid waste. An industry-wide variance would provide welcome
       relief to the industry. However, J.H. Baxter believes that a more
       permanent solution is possible that inconsistent with EPA's
       mandate for waste minimization.
       On December 6, 1990, EPA published regulations for the
       identification and listing of wood preserving wastes under RCRA and
       requiring wood preserving facilities to install drip pads. 5 5 Fed.
       Reg. 50450. Drip pads collect drippage, wash water,  and in some
       cases precipitation as well as solids such as dirt, wood chips or
       other debris. One design requirement of a RCRA subpart  W drip pad
       is that liquids drain to a collection device. In a wood  treating
       plant the collection device delivers water from the drip pad to
       process tanks where it is reused in the treating process or to an
       oil/water separation system. If the water is sent to an
       oil/water separation system, the oils are sent back to process
       tanks and the water is reused to formulate other preservatives.
       Solids are removed from the drip pad and associated  collection
       devices and are managed as  hazardous waste in accordance with RCRA.
       Regulations are very clear that once water is reclaimed it is not
       a hazardous waste.
       (a) Materials which are not solid waste.* * * *
       (9)(I) Spent wood preserving solutions that have been reclaimed and
       are reused for their original intended-purpose; and
       (ii) wastewaters from the wood preserving process that have been
       reclaimed  and are reused to treat wood.
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40 C.F.R. 261.4(a). Because this exclusion applies only after
reclamation, water on drip pads and water conveyed to a collection
device may be considered generated hazardous waste prior
to reclamation. However, if there is no reclamation, this material
     generated hazardous waste.
(e) Materials that are not solid waste when recycled. (1) Materials
are not solid waste when they can be shown to be recycled by being:
(I) Used or reused as ingredients in an industrial process to make
a product, provided the materials are not being reclaimed...
40 C.F.R. 261.2(e)(l).
In a treating plant, the liquid which is collected and used in the
treating process, does not undergo any processing prior to reuse.
In most cases a screen is placed on the suction side of the pump to
protect the pump from damage from debris which may be washed into
the collection device. The waters generated on the drip pad are not
processed or regenerated and consequently are not reclaimed.
A material is "reclaimed" if it is processed to recover a usable
product, or if it is regenerated. Examples are recovery of
lead values from spent batteries and regeneration of spent solvents.
40C.F.R.261.1(c)(4).
The language at 40 C.F.R. 261.4(a) should be amended to read as
follows:
(a) Materials which are not solid waste. The following materials
are not solid waste for the purposes of this part.* * * * *(9)(I)
Spent wood preserving solutions that are being, have been or will
be recycled and are reused for their original intended purpose;
and(ii) wastewaters from the wood preserving process that have been
recycled and are reused to treat wood.
The terms "recycled" replace the terms "reclaimed" used in the
regulation currently. This change would not decrease the level of
protection in the regulations regarding wood preserving
wastes. Only water used in the wood treating process would be
exempted from classification as solid waste.
This change also would relieve both industry and EPA of
unnecessary regulatory burdens by eliminating the need to request
and to review case-by-case variances, as required under
current regulations. 40 C.F.R. 260.30. Further, it would correct
the erroneous and negative portrayal of waste generation trends in
the wood preserving industry by allowing accurate recording of
wastes volumes from treating processes. It also would help restore
a rational basis to fee assessments by states that are based on
generated waste volumes. The fee structures based on current
EPA definitions of solid waste result in charges to the wood

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       preserving industry that overstate actual waste volumes by 70 to
       100 percent, depending on the type of preservative and
       production volumes. These fee assessments penalize the efforts and
       commitment of wood treating facilities to the nationwide priority
       of waste minimization.
       In conclusion, please consider our concerns and suggestions. Take
       into account the effect that the proposed dioxin regulation will
       have on the wood preserving industry, the waste disposal industry,
       the government and tax payers as well. Please work with our
       industry to promulgate regulations that are cost effective to
       implement and provide a benefit to human health and
       the environment.

RESPONSE

       EPA thanks the commenter for suggesting a simpler way to achieve the
regulatory change that the Agency is finalizing today's rule. Although the commenter's
suggestion is indeed simpler than the exclusion we have crafted, we find that would be
insufficient to meet all of the 40 CFR 260.31(b) variance criteria.  EPA is granting
today's exclusion because we are confident that any plant managing its wastewaters and
spent solutions in accordance with the conditions set forth in this exclusion will meet
each of the variance criteria (under §260.3 l(b)) upon which this exclusion is based. In
the August 22, 1995 Federal Register notice EPA expressed particular interest in the
extent to which the industry could show that its reclamation operations meet the
§260.3 l(b)(3) criterion that a material be handled before reclamation to minimize loss.
A blanket exclusion with no conditions for spent solutions that "will be recycled" in
insufficient to meet this criterion.

       The commenter claims that "the waters generated on the drip pad are not
processed or regenerated and consequently are not reclaimed." The Agency rejects this
argument, as it has in the past because the wastewaters and spent solutions need to
undergo filtering or some other purification step before they can be reused. See, e.g..
55 Fed. Reg. 50459-60 (December 6, 1990). EPA is not reopening or reconsidering this
issue in this rulemaking. As for the commenter's remarks concerning the fees assessed
by states based upon an industry s waste generation totals, EPA reiterates that it
believes that the exclusion today is appropriate because the materials are reused without
posing an environmental problem.
DCN     PH4P062
COMMENTER  RETEC
RESPONDER  SB

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SUBJECT   WOOD2
SUBJNUM   062
COMMENT
       Remediation Technologies, Inc. (RETEC) is an environmental
       consulting firm which specializes in providing innovative and
       cost-effective solutions to environmental challenges for our industrial
       clients. Since our founding in 1985, we have been providing assistance
       to the wood treating industry primarily in the area of site investigations
       and clean-ups.  We have completed over 30 site investigations for 15
       wood treating clients in 11 states. The following comments on the
       proposed land disposal restriction (LDR) rule (60 FR 43654) are
       provided based on our experience with this industry sector throughout
       the U. S.

       Exclusion for Recycled Wood Preserving Process Wastewaters

      The wood treating industry utilizes treating solutions to their
       maximum extent through recycling and reuse practices. These
       procedures allow the industry to treat wood in a cost effective
       manner while also minimizing waste production. As part of these
       practices, wood treaters recycle drippage and wastewaters. These
       materials are not spent and do not require reclamation prior to
       reuse. Therefore, these materials are not wastes. Drip pans
       and wastewater operations function as collection methods to
       facilitate reuse and recycling of these materials.
       The reuse practices for drippage and wastewaters involve very
       limited handling, with the liquids being hard piped between the
       processes. Our experience with investigations at woodtreating
       sites has not identified drip pans or process wastewater reuse
       operations as contributors to overall site contamination.
       In order to allow wood treaters to reuse and recycle drippage and
       wastewaters at their facilities as feedstock to the treating
       operations, we propose revising 40 CFR 261.4(a)(9) to read
       as follows:
       (I) Collected wood preserving solutions that are reused for their
       original intended purpose; and
       (ii) wastewaters from the wood preserving process that are reused
       to treat wood.

RESPONSE

       According to the commenter, the wood preserving industry's wastewaters and
spent solutions "do not require reclamation prior to reuse [and] therefore, these

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materials are not wastes." The Agency rejects this argument, as it has in the past
because the wastewaters and spent solutions need to undergo filtering or some other
step before they can be reused. See 55 Fed. Reg. 50459-60 (December 6, 1990). EPA
appreciates the information regarding the low contributions of wastewater reuse to site
contamination. Information like this helps EPA justify its conclusion that these
materials can be exempted from the definition of solid waste, provided plants meet the
conditions imposed by today's final rule. The commenter's assertion that "the liquids
[are] hard piped between the processes"  suggests that the commenter believes that these
materials might be exempt under the so-called "closed loop" exclusion at 40 CFR
261.4(a)(8).  The Agency also rejects this argument, as it has in the past because the
drip pads are open to the environment and not enclosed, like tanks. See 55 Fed Reg
50459 (December 6,  1990). Although the conveyance of the wastewaters from the drip
pad to the makeup tank through a series of sumps and other devices may minimize
releases to the environment, it does not meet the very specific requirements set forth by
§261.4(a)(8). EPA does not agree that the language offered by the commenter would be
sufficiently protective. EPA believes that the conditions included in the final rule are
necessary to ensure that the materials are handled to minimize loss and to prevent them
from becoming part of the waste disposal problem.
DCN     PH4P085
COMMENTER EOF
RESPONDER SB
SUBJECT   WOOD2
SUBJNUM   085
COMMENT
      I. INTRODUCTION
      These comments are submitted to the U.S. Environmental Protection
      Agency (EPA) in response to the Agency's proposed rules governing the
      placement of decharacterized wastewaters in surface impoundments and
      other matters related to the land disposal restrictions (LDR) program
      under the Resource Conservation and Recovery Act (RCRA). EPA's
      proposed regulations, sometimes referred to as the Phase IV LDR rules,
      were published in the Federal Register at 60 FR 43654 (August 22,
      1995).

      A. Description of the Commenter

      These comments are submitted on behalf of the Environmental Defense
      Fund (EDF). EOF is a national non-profit environmental advocacy
      organization with more than 250,000 members dedicated to the
      protection of human health and the environment by inter alia,
      eliminating unnecessary exposure to hazardous substances, including

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hazardous wastes. EDF members live, work, and recreate in areas
immediately affected by the improper management of hazardous and
industrial wastes, including those addressed in this rulemaking. EDF
participates extensively in RCRA implementation and oversight,
including activities in the regulatory, legislative, and judicial contexts.
For example, EDF was a petitioner in Chemical Waste Management v.
EPA, 976 F. 2d 2, cert, denied 113 S.Ct. 1961 (1992), in which the Court
held the Agency was obligated to address the risks posed by
decharacterized wastewaters thereby precipitating many aspects of the
instant rulemaking. EDF is also the plaintiff in EDF v. Browner, Civ.
No. 89-0598 (D.D.C.), the case governing the timing of this rulemaking.
C. Wood Preserving Wastewaters
In the proposal preamble, EPA provides an opportunity for the wood
preserving industry to supply information regarding whether an
industry-wide variance should be granted for unspecified onsite
recycling practices. Since no specific recycling practice is
discussed, no EPA position advanced, and little information
regarding the outstanding issues included in the discussion, this
portion of the preamble can only be considered akin to an
advanced notice of proposed rulemaking.
Based upon the information available to EDF thus far, the case for
designing a special regulatory scheme for wood preserving
wastewaters has not been made.  There is no evidence current
regulations provide a disincentive to recycling, and EDF is not
aware of any states expressing a compelling need to modify
currently applicable Subtitle C regulations for these wastes.
Instead, the motivation for the regulatory relief sought by
industry in this area appears to be the "accounting" of waste
generation quantities  and the resulting fees or taxes imposed
by certain states. State taxation policy should not compel
regulatory changes for any wastes. Perhaps more importantly, if the
wood preservative industry is unfairly taxed at the state level,  it
should address appropriate arguments to  the state legislatures
where those  taxes are imposed.
Significantly, wood preservative wastewaters are not managed in
tanks or containers. In this respect, the recycling activity is not
a "closed-loop process," and in fact is managed in units closely
resembling land disposal units. Moreover, based upon the
information available to EDF at  this juncture, much of the
wastewater generated is the result of the failure of
many facilities to control precipitation onto the unit and thus

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       minimize the generation of the bulk of the wastewater in the first
       instance. In other contexts, federal and state agencies insist
       on enclosed structures to manage materials, such as sand and salt
       piles used for road deicing.  Such requirements and policies are
       consistent with pollution prevention/waste minimization goals
       embodied in federal-law.
       Accordingly, it does not appear the industry is handling its
       wastes to minimize loss if the bulk of the waste generation is the
       result of not applying simple practices now employed by local
       governments and other small entities in other contexts. And by
       allowing precipitation to mix with wood preserving wastes and thus
       greatly increase the volumes of wastes to be handled, it would not
       appear the wastes are returned to the original process in
       substantially their original form.
       There is also no evidence that recycling of these wastewaters is
       prevented or impaired by the current regulatory framework - the
       industry simply seeks state tax relief. These factors, combined
       with the national policy expressed in RCRA of encouraging waste
       minimization wherever feasible, strongly argue against granting a
       variance  from the definition of solid waste pursuant to 40 CFR
       260.31(b). If the industry seeks tax relief, practicing
       waste minimization will accomplish the same objective in an
       environmentally superior manner.

RESPONSE

       EPA agrees with the commenter that the August 22,  1995 discussion of a
possible exclusion for wood preserving wastewaters that are recycled was "akin to an
advanced notice of proposed rulemaking." The  1995 Federal Register notice was an
attempt to get further information from the industry as well as other interested parties as
to whether such an exclusion was warranted.  Therefore it is not surprising that, as the
commenter suggested, EPA had not yet made a case for such a provision. This has
since changed. The Agency published a formal proposal in the May  12, 1997 Federal
Register that fully explained EPA's rationale for granting such an exclusion. The
exclusion we are finalizing today is based upon the fact that any wood preserving plant
that meets the conditions placed upon the exclusion would also fully meet the variance
criteria set forth at 40 CFR 260.3 l(b). We have found that regulating wastewaters and
spent solutions as solid waste prior to reclamation at such a facility is unnecessary
because, with the conditions imposed, the materials will not become part of the waste
disposal problem.  Although EPA did not consider the industry's tax burden in today's
rule, it notes that it could have under the criteria in section 260.3 l(b). Section
261.31(b)(l) requires the Agency to consider whether the affected operation would be
economically viable if it used virgin materials. If the hazardous waste taxes  were high

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enough to make wood preserving facilities consider using virgin materials rather than
reusing wastewaters from drip pads, EPA could consider their impact.

      EPA agrees that the process used to collect and recycle the wastewaters and
spent solutions does not meet the definition of "closed loop" recycling under section
261.4(a)(8), primarily because the drip pads are not enclosed. EPA, however, does not
share in the conclusion the commenter suggests: that the process fails to adequately
minimize loss or to prevent the materials from becoming part of the waste disposal
problem.  EPA has already found the Subpart W standards for drip pads~which do not
require enclosure—to be adequate to protect human health and the environment from
threats posed by listed hazardous wastes.  EPA does not believe that additional
requirements are needed to meet the "minimize loss" or "not part of the waste disposal"
tests.

      EPA acknowledges that precipitation lands on open drip pads and mixes with
the wastewaters and spent solutions that are captured in the drip pad sumps and then
piped back to the preserving process. EPA, however, does not believe that allowing
precipitation to fall on the pads means that facilities are failing to "minimize loss" of
the waste waters and spent solutions. If the drip pads sumps and pipes are leaking, all
of the materials-rainwater as well as waste materials-are captured in the sumps and
returned to the process. Any materials that do escape from the drip pads or other units
will be outside the scope of the exclusion and remain subject to the hazardous  waste
listings for spent preservatives.  Moreover, the conditions help assure that the materials
will be handled to "minimize loss", which is one of the criteria for  the case-by-case
variance which EPA used as a model for this generic rule. See 40CFR 260.3 l(b)(3).

      The commenter asserts that industry wants this exclusion to avoid state taxes on
hazardous waste generation. EPA acknowledges that this rule may have an impact on
state taxation. However, EPA has decided to create the exclusion because it is
convinced that the materials and practices generally meet the criteria in §260.31(b) and
are returned to the process in "substantially their original form", one of the other criteria
of the variance in section 260.3 l(b) that EPA used as a model for this generic rule.  It
merely increases the volume of water in the wastewater/spent solution mixture. It does
not, by itself, make the material any less suitable for reuse in a waterborne preservative
process.
DCN     PH4P097
COMMENTER  Hazardous Waste Management
RESPONDER  SB
SUBJECT  WOOD2
SUBJNUM   097
COMMENT

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       Exclusion For Recycled Wood Preserving Process Wastewaters (60 FR
       43679)
       The Agency is providing the wood preserving industry an
       opportunity to furnish information that could result in an
       industry-wide solid waste exclusion for wood preserving wastes
       that are reclaimed and returned to the wood preserving process.
       HWMA does not support the granting of an industry-wide exclusion
       for wood preserving wastes that are reclaimed and returned to
       the wood preserving process for reuse. The logic the Agency
       expressed in detail in the Wood Preserving Final Rule (55 FR 50450)
       still applies in this situation. Under the current rules,
       spent materials that must be reclaimed are defined as solid wastes
       (40 CFR 261.2(c)(3)). HWMA continues to believe that the current
       processes used in the wood preserving industry do not meet the
       terms of the closed-loop exclusion (40 CFR 261.4(a)(8)), and that
       any exclusion should employ the Agency's current variance
       provisions that would grant a case-by-case variance to individual
       facilities (40 CFR 260.30 and 260.31).
       The Agency indicates that it will consider a conditional exclusion
       if the wood preserving industry can meet the criteria in 40 CFR
       261.31(b); however, based on the specific criteria in 40 CFR 261.31
       (b) a conditional exclusion is not warranted without a
       facility-by-facility evaluation.

RESPONSE

       EPA believes that, if the conditions specified in the final rule are met, the spent
waters and preservative solutions merit an exclusion from the definition of solid waste
even though they must undergo reclamation, and even though the process is not a
"closed loop" reclamation process under 40 CFR 261.4(a)(8). EPA believes that the
general data it has collected, together with the conditions imposed, provide sufficient
assurance  that human health and the environment will be protected, the materials will
be handled to minimize loss and to not become part of the waste disposal problem.
EPA does not believe it is necessary to evaluate every plant individually under 40 CFR
260.30 and 260.31. It should be pointed out that upon promulgation, this exclusion will
immediately go into effect only for plants in those states and territories that are not
currently authorized to implement  the RCRA program (i.e., Alaska, Iowa, American
Samoa, Northern Mariana Islands, Puerto Rico and Virgin Islands).  Plants in these
states are subject to the provisions of the federal program. Conversely, any plant
located in  a RCRA authorized state will be unable to claim the exclusion we are
finalizing today until that state amends its regulations to include the exclusion. Because
EPA allows state programs to be more stringent than the federal program, it is not
necessarily guaranteed that all authorized states will elect to adopt this exclusion.

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       Finally, the commenter states that the "exclusion is not warranted without a
facility-by-facility evaluation." In our view, such a requirement is unnecessary. This
exclusion is only granted to facilities that meet all of the specified conditions.
Compliance with these conditions is sufficient to ensure that each of the §260.3 l(b)
variance criteria has been met. Therefore, we find it unnecessary to make an individual
finding for each facility.  However, as is clarified in regulatory language at 40 CFR
261.4(a)(9)(iii), the exclusion applies only so long as a plant meets all of the conditions.
If a plant goes out of compliance with any condition, it may apply to the appropriate
Regional Administrator or State Director for reinstatement. The Regional
Administrator or State Director may reinstate the exclusion upon finding that the plant
has returned to compliance with all conditions and that violations are not likely to recur.
DCN     PH4P101
COMMENTER  Oregon DEQ
RESPONDER  SB
SUBJECT  WOOD2
SUBJNUM   101
COMMENT
       2.  Exclusion for Recycled Wood Preservation Process Wastewaters
       Pesticide contaminated wastewaters being used as is, without
       interim management or storage, should be exempted from the
       definition of solid waste provided (1) the wastewater is not
       being released into a different medium; and (2) current drip pad
       requirements are retained. However, this proposal relaxes the
       regulations in a way that may jeopardize the Subpart W drip
       pad requirements for small generators.
       If wood treaters  are not required to count wastewaters, then they
       may become small quantity generators (SQGs) or even conditionally
       exempt small quantity generators (CESQGs).  The requirements for
       generators in these categories is unclear.  They may not be
       subject to the 90-day Subpart W requirements and associated
       regulations. Furthermore, relaxing the generator category could
       deregulate the hazardous wastewater  collection, accumulation and
       distribution system. In lieu of regulation, such systems could be
       designed to manage pesticide product. Industry rationale for
       excluding hazardous wastewater from the definition of solid waste
       is its use as an ingredient in the manufacturing process; hence, it
       makes sense to require wastewater to managed as a pesticide.
       Therefore, before deregulating wastewater, we would want the
       90-day Subpart W standards retained for all generator categories

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       and assurances that wastewater would be accumulated, collected and
       managed as pesticide product in the manufacturing process, and in
       compliance with the American Wood -Preservers' Association
       standards. Such enforceable standards would need to be developed if
       they do not already exist Finally, a class action exemption for
       the wood treating
       industry is contrary to the case-by-case variance procedure
       currently allowed in the hazardous waste regulations for authorized
       states. Not all facilities are the same; therefore,
       declassifying wastewater and facilities would still be needed on a
       case-by-case basis.

RESPONSE

       EPA agrees with the commenter that wood preserving wastewaters should be
granted an exclusion from the definition of solid waste only if they are not being
released and that the Subpart W drip pad standards are maintained. As evidenced by
today's final rule, there are a number of other provisions that EPA also considers
important.  The commenter also suggested that the Agency should require that all wood
preserving plants that manage their wastes on drip pads be required to comply with
Subpart W drip pad standards, regardless of their generator status.  EPA strongly agrees
with the commenter and is requiring that any facility claiming this exclusion and
managing its wastes on a drip pad to comply with Subpart W standards regardless of
generator status. In addition, although we are not specifically requiring that these
materials be "managed as pesticide product", we are confident that the conditions
placed upon this exclusion are sufficient to assure that they are managed to prevent any
release to the environment.

       EPA does not agree with the  commenter's statement that the exclusion being
finalized  today is "contrary to the case-by-case variance procedure currently allowed in
the hazardous regulations for authorized states."  This exclusion is not without
precedent. There are a number of exclusions from the definition of solid waste under
40 CFR 261.4 that do not require case-by-case determinations.  Moreover, as explained
in the response to comment PH4P097 above, any plant that meets the conditions
imposed by the final rule will meet the criteria for the case-by-case variance.
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DCN                                               PH4P091
COMMENTER                                     FMC
RESPONDER                                      AC
SUBJECT                                          ZINC
SUBJNUM    091
COMMENT   VIII. EPA Needs to Clarify that the UTS for TCLP Wastes Do Not
      Include Vanadium or Zinc Similar to what EPA did in the Phase II
      regulations /59 for the previous land disposal restricted
      characteristic wastes, EPA needs to clarify in the final Phase
      IV regulations and in the table associated with 40 CFR 268.48
      that vanadium and zinc are not applicable underlying hazardous
      constituents to TCLP wastes.

RESPONSE

      The Agency agrees with the commenter that vanadium and zinc are not UHCs in
characteristic wastes. Currently, vanadium is regulated in two listed wastes ~ PI 19 and
PI20, and zinc is regulated in K061 wastes.  The Agency will clarify this in the Phase
IV final rule.
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 50272-101
REPORT DOCUMENTATION 1 1 . Report No.
PAGE |
| EPA530-R-99-020b
1
I 2-
I
I
I
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 2: Comments Related to Phase IV Proposed Rule, August 22, 1995
7. Authors)
9. Performing Organization Name and Address
3. Recipient's Accession No.
PB99-155830
I
5. Report Date
April 1998
6.
8. Performing Organization Rept No.
10. Project/Task/Work Unit No.
  U.S. EPA
  OFFICE OF SOLID WASTE
  401 M STREET, SW
  WASHINGTON, DC 20460
                           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)


Responds to public comments relating to arsenic, beryllium, cadmium, chromium, lead, nickel, selenium, silver, vanadium, zinc, and general
metals treatment standards; state authorization; and foundry sand, slag, and toxicity characteristic issues. Addresses LDR and the hazardous
waste identification rule, underlying hazardous waste constituents, and miscellaneous topics. Examines the wood preserving wastewater
exclusion.
 17. Document Analysis a. Descriptors
   b. Identifiers/Open-Ended Terms
   c. COSATI Field Group
 18. Availability Statement
  RELEASE UNLIMITED
119. Security Class (This Report) | 21. No. of Pages
| UNCLASSIFIED            |

| 20. Security Class (This Page)   | 22. Trice
| UNCLASSIFIED            |
(SeeANSI-Z39.18)
                                  OPTIONAL FORM 272 (4-77)
                                  (Formerly NTIS-35)

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