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 4: Comments Related to First Notice of Data Availability May 10, 1996


United States       Solid Waste and      EPA530-R-99-020d
Environmental Protection   Emergency Response    NTIS: PB99-155 855
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 4: Comments Related to First
Notice of Data Availability (May 10,
1996)
      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

LEAD1: Lead Treatment Standards	1

LEAD2: Lead Treatment Standards  	19

MISC:  Miscellaneous Issues  	24

SLVR:  Silver Treatment Standards	27

WOOD2: Wood Preserving Wastewater Exclusion	40

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              Index of Commenters and Location of Comment, By Issue

Battery Council Int'l
      LEAD1 	10, 12
      MISC	8
Battery Council/ABR
      MISC	24
Chemical Waste Mgmt
      LEAD1 	21
Dupont Engineering
      LEAD1 	,	20
      SLVR 	38
Eastman Kodak
      SLVR 	,	 27
EDF
      MISC	25
      SLVR	.... 35
      WOOD2 	40
Env. Technologies Intl
      MISC	24
Env. Technology Council
      LEAD1 	13, 16, 18, 19
      LEAD2 	19
      SLVR 	36
      WOOD2 	42
Environmental Technology Council
      LEAD2 	23
J. H. Baxter Co.
      WOOD2 	43
National Mining Association
      SLVR	30
RSR Corporation
      LEAD1 	1, 3, 5, 7
Silver Council
      SLVR 	32

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DCN PH2A006
COMMENTER RSR Corporation
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 006
COMMENT RSR Corporation and its wholly owned subsidiaries (collectively RSR) are
pleased to submit the following comments on the U.S. Environmental Protection
Agency's (EPA) 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; Notice of Data
Availability (Notice) issued by EPA pursuant to the Resource Conservation and
Recovery Act (RCRA). /1[FN1: 61 Fed Reg 21418 (May 10, 1996).]
RSR is the nation's largest independent secondary lead recycling company.
Through its wholly owned subsidiaries,/! [FN2: RSR owns and operates subsidiary
facilities in California, Indiana, and New York] RSR annually
reclaims approximately 26 million lead-acid batteries. Approximately one of
every three batteries that are reclaimed in the United States is reclaimed at
an RSR facility. RSR also is a member of the Battery Council International
(BCI) and supports and incorporates by reference BCI's separately submitted
comments on this Notice. The U.S. battery recycling industry has in recent
years recycled over 95 percent of the lead available from lead-acid
batteries. Over 70 percent of the lead produced in the United States is
manufactured by the secondary lead industry and its reclamation of lead-acid
batteries and other lead-bearing materials. Aspects of this recycling program
and RSR's operations could be affected by the issues EPA requests comment on
in this Notice. RSR thus has a substantial interest in this rulemaking. These
comments address two issues in the Notice: (1) the data related to the
treatment standards proposed in the Phase IV rule for Toxicity Characteristic
(TC) metal wastes and, in particular, lead-bearing smelter wastes;/3 [FN3: 61 Fed. Reg.
21419] and (2) the status under the RCRA Land Disposal Restrictions (LDR) of slags
generated from the reclamation of lead-acid batteries and other lead-bearing materials
by secondary lead smelters. I. RSR Supports BCI's Comments Regarding The Data
In The Docket On The Proposed Universal Treatment Standard For D008 Wastes
From Secondary Lead Recycling RSR supports BCI's separately submitted
comments on this Notice and on the Phase IV proposed rule that the data in
the docket and referenced by EPA in the Notice clearly indicate that D008
nonwastewaters (e.g., slags, soils, sludges) generated from secondary lead
recycling activities cannot be chemically stabilized to meet the proposed Universal
Treatment Standards for D008 wastes./4 [FN 4: See letter from Jack Waggener and Charles
West, President and Senior Consultant, Resource Consultants to Jean Beaudoin and Gerald
Dubinski, BCI Chairmen of Environmental and Industrial Health Committees (Nov. 20, 1995).]
Specifically, these data demonstrate that stabilization treatment of D008 nonwastewaters cannot
achieve the proposed treatment standards of 0.37 milligrams per liter (mg/1) or 0.16 mg/1 for lead

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or selenium, respectively./5 [FN 5: In the Notice, EPA refers to these data as "limited." RSR
believes such is not the case. The data contain 276 separate data points for lead in slag and 156
data points for selenium in barium. The data were obtained from seven secondary lead smelters,
which represents approximately one third of the secondary lead industry. Moreover, these data
were statistically analyzed according to EPA's methodology for establishing LDR treatment
standards. (51 Fed. Reg. 40590; Nov. 7, 1986). The data were collected from facilities that have
been chemically fixating D008 wastes for years. Clearly, these data are not "limited."] Instead,
BCI's comments prove that the data show that based on the 99th confidence interval, stabilization
treatment of lead and selenium at secondary lead smelters can achieve only concentration levels
of 2.97 mg/1 for lead and 2.48 mg/1 for selenium.

RESPONSE

To compile further evidence regarding the treatability of TC metal wastes, including D008
wastes, to the UTS, EPA 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, which EPA believes would be
representative of a characteristic waste with UHCs, contained significant concentrations of
multiple metals including: lead and cadmium, barium and lead, and chromium and antimony. The
Agency compared the treatment standards based on stabilization and those based on HTMR and
selected the highest (less stringent) standard for each metal to establish the UTS. Using this
approach the Agency has allowed for process variability, detection limit difficulties, and the fact
that some metal wastes may not be suitable for HTMR. The Agency re-proposed a UTS of 5.7
mg/1 TCLP for selenium (D010) and 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 also reviewed the data submitted by BCI/ABR, 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 BD AT treatment standards and the type of data on
which both the final standard and compliance with that standard are based; (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 nor was the Agency able
to use the data to determine whether or not battery slag would meet the proposed treatment
standards.

The Agency also would like to note that if a particular waste possesses unique properties

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that make 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 PH2A006
COMMENTER RSR Corporation
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 006
COMMENT II. Slags Generated From The Reclamation Of Lead-Acid Batteries And Other
"Appendix XI" Materials Should Require No Further Treatment Under The LDRs A.
RSR Supports The Clarification That Slags Generated From The Reclamation Of
Lead-Acid Batteries Require No Further Treatment Under The LDR Program In the
Notice EPA clarifies an issue raised with respect to the applicability of the
LDRs to slags that are generated from the recycling and reclamation of
lead-acid batteries. RSR supports EPA's clarification and believes it is
consistent with the relevant LDR regulations and EPA's historical statements
on those regulations. The treatment standard for lead-acid batteries is a
specified method of technology rather than a concentration-based treatment
standard. 16 [FN 6: 40 C.F.R. 268.40] Specifically, the specified method of treatment
technology for lead-acid batteries is "RLEAD," which is defined as reclamation in a
secondary lead smelter./V [FN 7: 40 C.F.R. 268.40 and 268.42.] As EPA indicated in the
"Third Third" rule: "(W)hen EPA specifies a treatment method as the treatment standard,
residues resulting from the required treatment method are no longer prohibited from
land disposal."/8 [FN 8: 55 Fed. Reg. 22538 (June 1, 1990) (emphasis added). EPA also
addressed this issue in a similar fashion in the "Second Third" rule. 54 Fed. Reg. 26625,
26630 (June 23, 1989).] Consequently, once a battery has been smelted, the slags
generated from its reclamation have met the LDR treatment requirements and
require no further treatment. The proposed D008 treatment standards in the
Phase IV rule thus are inapplicable to slags generated from the reclamation
of lead-acid batteries. RSR understands that in recent conversations with BCI
representatives, EPA has indicated that it may rescind its statement in the
Notice that slags generated from the recycling of lead-acid batteries require
no further treatment because, according to EPA, that statement is
inconsistent with previous Agency statements on the issue. Specifically, in
the final "Third Third" rule EPA responded as follows to a comment on the
proposed Third Third rule regarding further treatment of slag or matter: "The
residuals from the recovery process are a new treatability group (i.e., the
residues are not lead acid batteries) and therefore their status as
prohibited or non-prohibited is determined at the point the residues are
generated."/9[FN 9: 55 Fed. Reg. 22568 (June 1, 1990).]
RSR does not believe that EPA must rescind its statement in the Notice that

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slags from lead-acid battery reclamation are not prohibited from land
disposal. Slags from the reclamation of lead-acid batteries are not a
separate treatability group from lead-acid batteries. Both slags and
batteries are nonwastewaters, as that term is defined in 40 C.F.R. 268.2(d).
Although EPA in the past has created subcategories of treatability groups
(e.g., high zinc K061), it has always done so by rulemaking. EPA has failed
to codify by rulemaking a separate treatability subcategory for slag from the
recycling of lead-acid batteries and cannot do so now by referring to
six-year old preamble language. Moreover, EPA's statement in the NODA is
consistent with language in the "Second Third" final rule on this issue./lO
[FN 10: 54 Fed. Reg. 26594 (June 23, 1989).] In that rule, EPA promulgated a
treatment technology of "Incineration or Carbon Adsorption as a Method of Treatment"
for the wastewater forms of K039, P040, P041, P043, P044, P062, P085, P109,
PI 11, U058, and U087./11 [FN 11 Id. at 26630.] [FN 12 Id.] In that
rule, EPA responded to comments requesting clarification on the applicability
of treatment standards to treatment residuals from these wastes. Commenters
asked the Agency to amend the standard to state expressly that the standard
does not apply to "derived-from" wastes. EPA agreed that the clarification
was necessary. More importantly, EPA stated that "incinerator ashes and
residues from the treatment of scrubber waters . . . are considered to meet
BDAT for these wastes" and that "incinerator equipment (such as fire brick)"
generated from the treatment of these wastes also required no further
treatment./12 [FN 11 Id. at 26630.] [FN 12 Id.] Firebrick and incinerator
ashes clearly are nonwastewaters, a different treatability group from the
wastewaters for which EPA codified the specified method of treatment. Yet,
EPA stated that no treatment of the residues is required. This reasoning should hold true
for the slags at issue here. If EPA nonetheless decides to rescind the statement in the
instant Notice, RSR believes it must do so by rulemaking.

RESPONSE

The Agency acknowledges that, in the NODA, EPA stated that "once the batteries are
smelted, the LDR requirements have been satisfied, and therefore the slag resulting from this
smelting need not be treated further. The standards proposed under Phase IV (i.e., compliance
with UTS) would not apply to this slag, even if the slag exhibits a characteristic of hazardous
waste (i.e., contains lead in amounts greater than 5.0 mg/1 TCLP)." The Agency's statement was
based on the usual interpretation that "when EPA specifies a treatment method as the treatment
standard, residues resulting from the required treatment method are no longer prohibited from
land disposal unless EPA should otherwise specify."

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the status of the residues as prohibited or non-prohibited is determined at the point the residues
are generated. Such residues would indeed require further treatment if they 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.

The Agency further believes that this is an appropriate determination. The usual
assumption is that when a method of treatment is designated for the waste, use of that method
will have minimized threats associated with land disposal of the waste. When the secondary
smelting process generates a slag that still exhibits TC — a level at which the Agency is convinced
the waste is obviously hazardous (55 FR at 22651) — threats posed by land disposal have clearly
not been minimized. Further treatment which eliminates the characteristic and further reduces
available lead is readily available. Consequently, the Agency's determination that further
treatment of TC secondary lead slags is needed before the wastes can be land disposed is a
reasonable one. See, e.g., 976 F. 2d at 27, 32 (remanding standards for metal wastes when
further reductions in metal levels through treatment could be,achieved).

Furthermore, EPA used new data from the treatment of lead slags and revised the lead
UTS and proposed the revised standards in the Second Supplemental Proposal on May 12, 1997.
The Agency observed high levels of lead in the lead slag, and therefore, believes that potential
threats from treated lead wastes (using RLEAD) are clearly not minimized. Therefore, lead slags
that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0 mg/1 TCLP) 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 PH2A006
COMMENTER RSR Corporation
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 006
COMMENT B. The LDR Status Of The Slags Should Not Be Affected By The Recycling Of
Low Volumes Of Other Lead-Bearing Materials The Notice requests comment on
whether the fact that secondary lead smelters also process lead-bearing
materials other than lead-acid batteries should alter the above
interpretation. EPA specifically requests comment on whether the LDR status
of these slags should be affected by the processing of these other materials.
In the Notice, EPA states that it believes the LDR status of the slags should
not be affected by the recycling of closely related lead-bearing items. In
addition, EPA requests comment on whether the materials listed in Appendix XI
to 40 C.F.R. Part 266 can serve the purpose of defining those materials
secondary smelters may accept without affecting the LDR status of their

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resulting slags. For several reasons, RSR agrees with the Agency that the processing of
lead-bearing materials generated by lead-associated industries/13 does not affect the
LDR status of the slags generated by RSR's subsidiaries. [FN13: RSR's use of the
term "lead-associated industries" is intended to be consistent with EPA's use
of that term in 40 C.F.R. Part 266, Appendix XI, i.e., lead smelters,
lead-acid battery manufacturers, and lead chemical manufacturers.] First,
the lead-bearing materials that RSR's subsidiaries reclaim represent a very
small fraction of materials that are reclaimed. Typically, lead-bearing
materials other than lead-acid batteries represent less than five percent of
the materials reclaimed by RSR's subsidiaries. It makes no sense to subject
the slags to further LDR treatment where the other lead-bearing materials
that smelters reclaim represent such a small portion of the total feed to the
recycling process. Second, EPA recognized in the Boiler and Industrial
Furnace (BIF) rulemakings that lead-bearing materials generated by
lead-associated industries should be exempt from the BIF standards when
processed by secondary lead smelters.714 [FN 14: 40 C.F.R. 266.100(c),
56 Fed. Reg. 42507 (Aug. 27, 1991).] The reasons supporting the BIF
exemption are equally valid in this instance. For example, in the BIF
rulemakings EPA recognized that these lead-bearing materials are being
processed for lead recovery and are not being processed for sham recycling or
conventional treatment./15 [FN 15: Id. and 54 Fed.
Reg. 43732 (Oct. 26, 1989).] Third, the processing of these lead-bearing
materials does not significantly affect the composition of the slag. The
constituents in these lead-bearing materials typically are found in lead-acid
batteries and the lead in the materials can be reclaimed. Fourth, the
lead-bearing materials at issue typically are processed at the same time that
lead-acid batteries are reclaimed. Slag generated from the recycling of
batteries and other lead-bearing materials and slag generated from the
recycling solely of batteries are indistinguishable. Consequently, as a
practical matter subjecting the slags to further treatment simply because the
smelter processed other lead-bearing materials would mean that virtually all
slags would require further treatment. Finally, if EPA requires further
treatment of these slags, secondary lead recycling facilities may cease to
reclaim other lead-bearing materials. These materials thus would be disposed
of thereby violating EPA's waste management hierarchy.

RESPONSE

As noted in the previous response, after the publication of the NOD A, EPA realized that
lead slag residues resulting from the smelting of lead acid batteries were previously and
appropriately identified as a separate treatability group in the Third Third Final Rule (55 FR
22520, June 1, 1990). Therefore, the status of the residues as prohibited or non-prohibited is
determined at the point the residues are generated. Such residues would indeed require further

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treatment if they 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, EPA notes that the issue of processing low volumes of lead-bearing
materials other than lead-acid batteries in secondary lead smelters becomes irrelevant. Any
residue resulting from the lead smelter that exhibits a lead toxicity characteristic (i.e., have lead
levels exceeding 5.0 mg/1 TCLP), has to be treated again for lead and any other underlying
hazardous constituents present in the slag residual.
DCN PH2A006
COMMENTER RSR Corporation
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 006
COMMENT C. RSR Supports The Agency's Use Of Appendix XI EPA requests comment on
whether the materials listed in Appendix XI to 40 C.F.R. Part 266 can serve
the purpose of defining those materials secondary smelters may accept without
affecting the LDR status of their resulting slags. RSR supports this use of
Appendix XI. The materials on the list are those that are typically processed
by secondary lead smelters. RSR wishes to note, however, that certain of the
materials on the list, as well as others that are not on Appendix XI are processed by
smelters but are exempt from the definition of solid waste. For example, certain
characteristic by-products that are not on Appendix XI are reclaimed by RSR's
subsidiaries. These materials are exempt from the definition of solid waste./16
[FN 16: 40 C.F.R. 261.2(c).] RSR wishes EPA to clarify that the use of Appendix
XI for the proposed purpose does not imply that secondary lead smelters cannot
reclaim these and other RCRA exempt materials without affecting the LDR status
of the slag.

RESPONSE

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mg/1 TCLP), has to be treated again for lead and any other underlying hazardous constituents
present in the slag residual.
DCN PH2A008
COMMENTER Battery Council Int'l
RESPONDER MC
SUBJECT MISC
SUBJNUM 008
COMMENT The Battery Council International (BCI) and Association of Battery Recyclers
(ABR) are pleased to submit these comments in response to the U.S.
Environmental Protection Agency's (EPA) Notice of Data Availability (NOD A) on
the Resource Conservation and Recovery Act (RCRA) Land Disposal Restrictions.
(LDR) Phase IV proposed rule. I/ [FN I/ 61 Fed. Reg. 21418 (May 10, 1996).]
BACKGROUND BCI is a non-profit trade association representing commercial entities
involved in the manufacture, distribution, sale, and reclamation of lead-acid batteries.
BCI's 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. 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.
ABR is a non-profit national trade association whose members include
companies in the lead recycling and manufacturing industries and the
lead-chemicals industry. Members of the ABR collectively represent a
significant percentage of the lead recycling capacity currently available in
the United States. BCI's and ABR's members play an integral role in the
recycling of lead-acid batteries. In recent years, over 95 percent of the
lead available from lead-acid batteries has been recycled. Aspects of the
recycling program would be directly impacted by this proposal.
COMMENTS I. DATA CLEARLY SHOWS THAT THE PROPOSED
UNIVERSAL TREATMENT STANDARDS FOR D008 WASTES CANNOT BE MET
Data referenced by EPA in the NODA clearly indicate that D008 nonwastewaters
(e.g., slags, soils, sludges) generated from secondary lead smelting activities cannot be
chemically stabilized to meet the proposed Universal Treatment Standards of .37 mg/1 for
lead and .16 mg/1 for selenium.21 [FN 21 See letters from Jack Waggener and Charles
West, President and Senior Consultant, Resource Consultants, to Jean Beaudoin and
Gerald Dubinski, BCI Chairmen of Environmental and Industry Relations Committees,
and Robert N. Steinwurtzel and Susan J. Panzik, counsel to the Association of Battery
Recyclers (Nov. 20, 1995).] The significance of this conclusion was
fully described in our previous comments, submitted in November 1995 on the
proposed RCRA LDR Phase IV rulemaking. See Tab 1. EPA is incorrect to

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characterize this data, in the NOD A, as "limited." As noted in our November
comments, the data contain 276 separate data points for lead in slag and 156
data points for selenium and barium. These were obtained from seven secondary
lead smelters (which represent approximately one third of the secondary lead
industry) that have been chemically fixating D008 wastes for years. Moreover,
these data were tested with validating EPA-approved quality assurance and
control (QA/QC) procedures, and were statistically analyzed according to
EPA's methodology for establishing LDR treatment standards. 3/ [FN: 3/51 Fed.
Reg. 40590 (Nov. 7, 1986). ] If the Agency continues to harbor any doubts about
the representativeness of this data, we would be pleased to meet with the Agency
staff to resolve its questions.4/ [FN 4/ On April 30, 1996, we met with EPA staff to
discuss our comments on the proposed LDR Phase IV rule, but the Agency failed to raise
any issue concerning the quality or quantity of our data. Moreover, in
December, 1995, Resource Consultants Inc. and BCI representatives initiated a
meeting with Anita Cummings of EPA to discuss the; derivation of EPA's
proposed LDR treatment levels and our data. At the time the meeting was held,
Ms. Cummings did not raise any concerns over the value or extent of our data.]

RESPONSE

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treatment process was in fact well designed and operated. A letter was sent by Mr. Michael
Petruska, USEPA to Mr. David B. Weinberg, Esq. Battery Council International on July 22, 1996
requesting additional information on BCI's data submittal. ( See "Request for Additional Data in
support of Previous Submitted Data in Response to Land Disposal Restrictions Phase IV"). No
additional information was forthcoming, therefore, the Agency was unable to use the data for
developing the BDAT treatment standards.
The Agency also would like to note that if a particular waste possesses unique properties
that make 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 PH2A008
COMMENTER Battery Council Int'l
RESPONDER MC -r
SUBJECT LEAD1
SUBJNUM 008
COMMENT II. SLAG FROM THE SMELTING OF BATTERIES AND OTHER
"APPENDIX XI" MATERIALS SHOULD NOT BE SUBJECT TO LDR
TREATMENT STANDARDS A. Slag Does Not
Require Further Treatment BCI and ABR fully concur with the Agency's
recognition, in the NOD A, that slags resulting from the smelting of lead-acid
batteries do not need to be treated further to meet the LDR requirements
(even if they exhibit a characteristic of hazardous waste), because the
material is generated from a Best Demonstrated Available Technology (BDAT)
process (i. e., RLEAD — thermal recovery of lead in secondary smelters).
This regulatory interpretation is completely consistent with applicable LDR
regulations and EPA's and our past interpretations of those regulations. 5/
[FN 5/ 55 Fed. Reg. 22538 (June 1, 1990); 54 Fed. Reg. 26625, 26630 (June 23,
1989); See Tab 2. In a recent, informal conversation, one EPA staff member
has suggested that the Agency may rescind this position because it is
inconsistent with a previous statement published in the preamble to the LDR
Third Third rule (55 Fed. Reg. 22568 (June 1, 1990)). Such an interpretation
is both incorrect and only lawfully could be advanced after giving all
concerned parties an opportunity to provide formal comments. See National
Coalition Against the Misuse of Pesticides v. Thomas, 809 F. 2d 875 (D.C.
Cir. 1987) (the District of Columbia Court of Appeals refused to uphold an
EPA rule where "the record [was] virtually barren of reasons") and Motor
Vehicles Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29, 57 (1983) (the United States Supreme Court refused to uphold a
Department of Transportation rescission of a prior agency rule where it found
10

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that the "agency [had] failed to supply the requisite 'reasoned analysis.1") ]
For instance, EPA explicitly stated in the RCRA LDR "Third Third Rule" that
"when EPA specifies a treatment method as the treatment standard, residues
resulting from the required treatment method are no longer prohibited from
land disposal."6/ [FN 6/ 55 Fed. Reg. 22538 (June 1, 1990). EPA also
addressed this issue in a similar fashion in the "Second Third" rule. 54 Fed. Reg.
26625, 26630 (June 23, 1989).] Consequently, once a battery has been smelted, the slags
generated from its reclamation have met the LDR treatment requirements and
require no further treatment. The proposed D008 treatment standards in the
LDR Phase IV thus are inapplicable to slags generated from the reclamation of
lead-acid batteries Moreover, as previously stated in our comments submitted
to the Agency on the proposed RCRA LDR Phase IV rule, the D008 nonwastewater
materials handled by the battery industry are stabilized and disposed
appropriately according to EPA regulations. Thus, any risk of placing this
material on the land is minimized which of course serves the purposes of LDR
treatment standards. II [FN II 60 Fed. Reg. 43654 (August 22, 1995).]

RESPONSE

The Agency acknowledges that, in the NOD A, EPA stated that "once the batteries are
smelted, the LDR requirements have been satisfied, and therefore the slag resulting from this
smelting need not be treated further. The standards proposed under Phase IV (i.e., compliance
with UTS) would not apply to this slag, even if the slag exhibits a characteristic of hazardous
waste (i.e., contains lead in amounts greater than 5.0 mg/1 TCLP)." The Agency's statement was
based on the usual interpretation that "when EPA specifies a treatment method as the treatment
standard, residues resulting from the required treatment method are no longer prohibited from
land disposal unless EPA should otherwise specify."

However, after the publication of the NOD A, EPA realized that lead slag residues
resulting from the smelting of lead acid batteries were previously and appropriately identified as a
separate treatability group in the Third Third Final Rule (55 FR 22520, June 1, 1990). The Third
Third Rule states that "Other commenters questioned whether the slag or matte from recovery
processes would need further treatment and whether these wastes should be placed in monofills.
The residuals from the recovery process are a new treatability group (i.e., the residues are not lead
acid batteries) and therefore their status as prohibited or non-prohibited is determined at the point
the residues are generated." Such residues would indeed require further treatment if they
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.

Furthermore, EPA used new data from the treatment of lead slags and revised the lead
UTS and proposed the revised standards in the Second Supplemental Proposal on May 12, 1997.
Interested parties had notice and opportunity to comment on this issue after the proposal of the
11

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second supplemental rule.

The Agency observed high levels of lead in the lead slag, and therefore, believes that
potential threats from RLEAD residues which exhibit the TC are clearly not minimized —the TC
level simply does not minimize threats. 55 FR at 22651; 886 F. 2d at 362-65. Therefore, lead
slags that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0 mg/1 TCLP)
after RLEAD is employed, would have to be treated such that lead and any other underlying
hazardous constituents present in the slag residual met the promulgated UTS levels. 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 PH2A008
COMMENTER Battery Council Int'l
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 008
COMMENT B. Appendix XI Materials Do Not Affect the LDR Status of Generated Slags
from Secondary Smelters The Agency is correct that the processing in secondary
smelters of lead-bearing materials generated or originally produced by "lead-associated
industries" does not affect the LDR status of the slags the smelters generate. 8/
[FN 8/ As defined in 40 C.F.R. Part 266, Appendix XI, "lead-associated
industries" are composed of lead smelters (both primary and secondary),
lead-acid battery manufacturers, and lead chemical manufacturers.] These materials,
listed in 40 C.F.R. Part 266 Appendix XI ("Appendix XI materials"), are indigenous or
"normal feed materials to secondary lead furnaces," and are "burned for
recovery of lead," as recognized by the Agency in the Boiler and Industrial
Furnace (BIF) rules.9/ [FN 9/ 40 C.F.R. 266.100 (c); 56 Fed. Reg. 42507
(Aug. 27,1991); 54 Fed. Reg. 43732 (Oct. 26, 1989).] Smelters have been
routinely accepting and processing these materials along with used lead-acid batteries for
legitimate reclamation of lead, without affecting the composition of the slag generated
from the same recovery process. Indeed, all of the slag data referenced by EPA comes
from smelters that were processing various "Appendix XI" materials. Thus, the
processing of materials does not warrant subjecting slag to further treatment. 107
[FN 10/ We note, however, and as recognized by the Agency, that there are certain
lead-bearing materials not on the Appendix XI list that also readily could be or are
processed by smelters. These materials either are not solid wastes when recycled or are
exempt from RCRA regulation when recycled. For example, certain
characteristics by-products that are not listed on Appendix XI can be
reclaimed by secondary smelters. In any event, however, they have no
significant impact on slag characteristics. In the final LDR rulemaking, we
request that EPA clarify its reference of Appendix XI, confirming that
12

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secondary lead smelters can reclaim Appendix XI and other RCRA exempt
materials without affecting the LDR status of the slag.]
Moreover, all lead-bearing materials other than lead-acid batteries represent a very small
fraction of materials reclaimed by the secondary smelters -- far less than
ten percent. Thus, subjecting the slags to further LDR treatment for
materials that are such a small portion of the total feed to the smelting
process would be unjustified. Accordingly, for the reasons noted above, BCI
supports the Agency's recommendation to use the Appendix XI list as defining
those materials secondary smelters may accept without affecting the LDR
status of their resulting slags. 11/ [FN 11/61 Fed. Reg.
21419. We reserve the right, however, to provide further comments suggesting
expansion of the Appendix XI list in other context's, such as the proposed
HWIR contaminated-media rule.]
RESPONSE

As noted in the previous responses, after the publication of the NOD A, EPA realized that
lead slag residues resulting from the smelting of lead acid batteries were previously and
appropriately identified as a separate treatability group in the Third Third Final Rule (55 FR
22520, June 1, 1990). Therefore, the status of the residues as prohibited or non-prohibited is
determined at the point the residues are generated. Such residues would indeed require further
treatment if they 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, EPA notes that, the issue of different types of lead-bearing materials (such
as those listed in Appendix XI) other than lead-acid batteries processed in secondary lead smelters
becomes irrelevant. Any residue resulting from the lead smelter (irrespective of the type of
materials processed) that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0
mg/1 TCLP), has to be treated again for lead and any other underlying hazardous constituents
present in the slag residual.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 014
COMMENT The Environmental Technology Council (ETC or Council) comments on EPA's
Notice of Data Availability for the LDR Phase IV Proposed Rule in the
above-referenced docket. 61 Fed. Reg. 21418 (May 10, 1996). I. Description of
the Environmental Technology Council The ETC is a national trade association
of firms engaged on a commercial basis in the recycling, treatment, and
disposal of hazardous and industrial wastes. The Council's member companies
13

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provide high-technology methods for the safe and effective treatment,
reclamation and disposal of waste materials; remedial response at
uncontrolled waste sites and waste treatment equipment. The Council has been
actively involved in every major LDR rulemaking since the inception of this
regulatory program. Council members provide incineration and stabilization
services that will be directly affected by the LDR Phase IV proposal and the
issues raised in the recent NOD A.

II. Treatment Standards For Toxicity Characteristic (TC) Metal Wastes A.
Lead-Bearing Smelter Wastes 1. EPA "Clarification" of the LDR Standard The
Council has reviewed the comments submitted by trade groups for battery
recyclers regarding the treatment standards for lead slags and sludges from
recycling of lead-acid batteries. In response to EPA's NOD A, the Council
herewith submits treatability data from member-firms clearly demonstrating
that lead battery slags and sludges can be treated by stabilization to the
Universal Treatment Standards for lead and underlying metal hazardous
constituents. The limited treatment data submitted by the battery recyclers
does not reflect optimal stabilization of lead slags and sludges, including
proper sizing and preparation of the material  and effective use of
stabilization additives and reagents.  The Council's treatment data  are
presented and discussed further below.
First,  however, the Council must strongly object to EPA's mistaken attempt to
"clarify" the applicability of the LDR standards to slags and sludges from
smelting of lead acid batteries. 61 FR 21419, col. 3. The LDR standard for
lead acid batteries is RLEAD (recovery of lead). 40 CFR 268.42. However, if
the slag or sludge produced from battery smelting is itself a characteristic
hazardous waste for lead (D008) or any other metal constituent, then the slag
or sludge is a new hazardous waste which should be subject to the Universal
Treatment Standards for the TC metal constituent(s) and any underlying
hazardous constituents in the waste. This general analysis applies in
particular to lead battery slag and sludge, as discussed by EPA itself in the
Third-Third LDR Final Rule. 55 Fed. Reg. 22520 (June 1, 1990).  In that
rulemaking, EPA stated: Other commenters questioned whether the slag or matte
from  recovery processes would need further treatment  and whether these wastes
should be placed in monofills. The residuals from the recovery process are a
new treatability group (i.e. the residues are not lead acid batteries) and
therefore their status as prohibited or non-prohibited is determined at the
point the residues are generated. Such residues would thus only be prohibited
and therefore  require further treatment if they exhibit a characteristic. 55
Fed. Reg. at 22568, col. 1. Indeed, the Part 268  regulations require this
result. Section 268.9© on "Special rules regarding wastes  that exhibit a
characteristic" specifically states: In addition  to any applicable standards
determined from the initial point of generation [i.e., RLEAD for lead acid
                                     14

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batteries], no prohibited waste which exhibits a characteristic under 40 CFR
part 261, subpart C [i.e., slag and sludges from smelting of the batteries]
may be land disposed unless the waste complies with the treatment standards
under subpart D of this part. Thus, if the waste from lead smelting of
batteries exhibits a characteristic, the waste must meet the treatment
standards under subpart D for the characteristic. No other provision of the
regulations changes or overrides 268.9© with respect to characteristic
residues from treatment of hazardous wastes.
Indeed, the ETC believes that this approach strongly encourages recovery of
lead and discourages "sham" operations. The RLEAD standard was meant to
recognize that most lead-acid batteries are subject to lead recovery, and
that EPA wanted to encourage this method of recycling. See 55 Fed. Reg. at
22568, col. 1. However, if lead batteries can be processed through  a smelter
and significant lead values are not recovered, but instead are transferred to
the slag and sludge residues at concentrations that expeed the toxicity
characteristic, then lead recovery is not really occurring. In order to
discourage this "sham" recovery, EPA must ensure that the resulting slag does
not contain lead (or other toxic metal constituents) above TC levels, or if
it does, that the slag is subject to proper treatment requirements for such
TC metal wastes prior to land disposal. Contrary to its own regulations,
however, EPA purports to make the following "clarification" in this Notice of
Data Availability (61 FR 21419, col. 3): The LDR standard for lead acid
batteries in specified as RLEAD, or recovery of lead. (See 40 CFR Section
268.42). Once the batteries are smelted, the LDR requirements have been
satisfied, and therefore the slag resulting from this smelting need not be
treated further.  (However, if the slag exhibits a characteristic of
hazardous waste, it must of course be managed under all other applicable,
i.e., non-LDR hazardous waste requirements.) [Emphasis added.] This supposed
"clarification" is seriously mistaken. If EPA meant to restate the current
regulatory requirement, the underscored  "clarification" is flatly contrary to
law. Once lead acid batteries are smelted, the LDR requirements applicable to
the batteries only have been satisfied, but if the resulting slag or sludge
from this smelting exhibits a hazardous characteristic, it is a new hazardous
waste that must be treated further to meet the LDR requirements applicable to
TC metal wastes. On the other hand, if EPA means to change the current
regulations, it is unlawful to do so in this Notice of Data Availability, and
not in a final rule after adequate notice and opportunity for comment.
Because EPA's "clarification" may be construed as final agency action under
the Administrative  Procedure Act, and the statutory time period for judicial
review in RCRA 7003(a) is limited to ninety days, the Council will have no
recourse but to file a lawsuit seeking court review of EPA's unlawful action,
unless EPA expressly withdraws the  clarification prior to expiration of the
90-day period (i.e., August 8, 1996).
                                     15

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RESPONSE

The Agency agrees with the commenter that residues resulting from treated lead slag
(using RLEAD), if they exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0
mg/1 TCLP), would have to be treated for lead and any other underlying hazardous constituents
present in the slag residual to comply with the UTS levels. EPA also agrees with the
commenter's analysis of why this is the case under existing rules. EPA adds only the evident
point that if the smelting process generates a slag which exhibits the TC for lead (or for that
matter, any constituent), threats posed by land disposal have not yet been minimized.

After the publication of the May 10, 1997 NODA,EPA realized that lead slag residues
resulting from the smelting of lead acid batteries were previously and appropriately identified as a
separate treatability group in the Third Third Final Rule (55 FR 22520, June 1, 1990). Therefore,
the status of the residues as prohibited or non-prohibited is determined at the point the residues
are generated. Such residues would indeed require further treatment if they exceeded the TC for
lead (5.0 mg/1) as generated.

Furthermore, EPA used new data from the treatment of lead slags to revise the lead UTS
and proposed the revised standards in the Second Supplemental Proposal on May 12, 1997.
The Agency observed high levels of lead in the lead slag, and therefore, believes that potential
threats from treated lead waste (using RLEAD) are clearly not minimized. Therefore, lead slag
residues that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0 mg/1 TCLP)
after RLEAD is employed, have to be treated for lead and any other underlying hazardous
constituents present in the slag residual. See the BOAT 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.

While the data submitted with the comment, supports ETC's claim that the treatment
standard can be met for lead from battery slag and foundry sands, the data is based on composite
sampling and has not been utilized by the Agency to corroborate the standard. However, the
Agency did review the data and does agree that there does not seem to be difficulty in achieving
the standard based on composite sampling and only treating to remove the characteristic. See
"Overview of Five Data Sets Submitted in Response to Phase IV Proposed Rule: Re: Treatment
of Metals" as well as ETC's original comment No. PH2A-00014. The Agency did receive from
ETC in response to the Second Supplementally information on statistically derived treatment
standards from their data, which indicated that for lead a treatment standard of 1.20 was
calculated, however there was one possible outlier in the data and if that data point was removed,
the standard would actually be less the 0.75 mg/L TCLP for lead being promulgated today.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER MC
16

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SUBJECT          LEAD1
SUBJNUM         014
COMMENT   2. Treatment Data for Stabilization of Lead Slag and Sludge from Smelting
       of Lead Acid Batteries a. Description of Treatment Facilities and Processes
       A number of ETC member companies operate commercial facilities for the
       stabilization of lead slag and sludge from smelting of lead batteries. These
       facilities receive RCRA and non-hazardous wastes which are direct disposed or
       treated, using stabilization technologies, to meet applicable treatment
       standards prior to disposal. Wastes received for stabilization include: Lead
       slags generated from the recycling of lead acid batteries, characteristically
       hazardous for lead (D008) and sometimes other metals; Foundry sands,
       characteristically hazardous for lead (D008); Soils from remedial projects
       contaminated with heavy metals such as lead (D008); Electric arc furnace
       dust, KO61; and Other listed wastes such as F006 and FOOT - F012. Listed
       wastes are stabilized to meet the applicable treatment standards for each
       constituent for which the waste was listed. Characteristic wastes are treated
       until the waste no longer exhibits the characteristic. Slags require a size
       reduction step prior to stabilization. In the preamble to the Third-Third
       Rule, 55 Fed. Reg. at 22556, the Agency discusses the 9.5 mm size requirement
       and indicates that slags would probably have to be crushed or otherwise
       reduced in size prior to stabilization in order to comply with the D004
       through DO11  treatment standards. To accomplish this size reduction, ETC
       member companies have installed sophisticated crushing and screening
       operations to provide the necessary pre- stabilization processing required to
       receive slags from battery recycling. Slags are crushed to less than 3/8
       inches in size and then stabilized to remove the applicable characteristics.
       At one ETC member-firm, for example,  stabilization of lead battery slag
       typically proceeds along the following sequence of steps: 1) The generator
       provides a sample of the waste, along with available analytical information.
       2) The ETC member-firm conducts bench scale stabilization treatability
       studies to determine the required amount of stabilization additives necessary
       to meet the treatment standards applicable to the waste. 3) The first
       shipments of waste from the generator is stabilized, then tested to assure
       that the waste has been treated to meet the applicable standards.  4) If the
       shipment meets the standards based on the design stabilization formulation
       from the bench scale study, subsequent shipments are received for
       stabilization. 5) Some of these subsequent shipments are analyzed, after
       treatment,  as an ongoing spot-check of the stabilization process for that
       waste. 6) The testing of the first shipment and of subsequent shipments is
       stipulated in the Waste Analysis Plan portion of the facility's RCRA Part B
       permit.  All testing of stabilized slag is done in accordance with SW 846 QA/QC
       protocols.  Thus, the data presented in these comments was developed in strict
       compliance with LDR and RCRA permit requirements following all required QA/QC
                                           17

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procedures.

RESPONSE

The Agency thanks the commenter for providing additional information on the
stabilization process supporting the lead UTS proposed in the second supplemental rule and being
finalized in today's rulemaking by the Agency. However, the data is not based on grab sampling
and while compelling was not used to corroborate today's standard. See "Overview of Five Data
Sets Submitted in Response to Phase IV Proposed Rule: Re: Treatment of Metals."
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 014
COMMENT b. Stabilization Data - Slag Tables 1 and 2 below show data from
the stabilization of slag generated from battery recycling operations at one
ETC member company in 1995 and 1996. The slag was crushed to less than 3/8
inch size and stabilized in lots of approximately 20 tons. Following
stabilization, a 500 - 1000 gram sample of the stabilized slag was removed. A
TCLP leachate test was run on the stabilized slag and the TCLP extract was
analyzed for metals. Table 1 shows results for lead. Out of 36 samples of
stabilized slag, 29 (80.6%) achieved a TCLP result below the UTS for lead of
0.37 mg/1.

TABLE 1 CONSTITUENT CONCENTRATION IN TCLP, mg/1 IN
STABILIZED BATTERY RECYCLING SLAG [SEE HARD COPY OF COMMENT
P42A-00014 FOR TABLE] In all cases the treatment objective was to reduce leachability
to below characteristic levels, since UTS levels were not applicable at the time.
Nevertheless, as indicated in Table 2, not only did the stabilization meet
the characteristic levels, it also met the UTS levels for all Arsenic,
Barium, and Nickel values. Eight of the nine (88.9% of the Cadmium values and
6 of the 7 (85.7%) Selenium values also met the UTS. TABLE 2 CONSTITUENT
CONCENTRATIONS IN TCLP, mg/1 STABILIZED BATTERY RECYCLING SLAG
[SEE HARD COPY OF COMMENT P42A-00014 FOR THIS TABLE] Given that the
objective of the treatment formulation was to reach the characteristic level that is over 5
times higher than UTS for Cadmium and over 10 times higher than UTS for Lead,
the fact that UTS levels were achieved in over 80% of these formulations is
strong evidence that stabilization is indeed effective in meeting UTS for
slag. Formulations designed with the objective of meeting UTS would not
involve inordinate expense or difficulty to bring the remaining 10 to 20% of
18

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the stabilized slag values under UTS. Based on these treatability data, ETC
believes there can be no doubt regarding the ability of stabilization to meet
the UTS for this slag. In addition, another ETC member company compiled
extensive treatability data on stabilization of slag from smelting of lead
batteries (and on foundry sand), which are attached to these comments. The
attached tables show that stabilization of battery slag at this facility
during March, 1995, through May, 1996, achieved the UTS levels for Lead and
underlying metal constituents 100% of the time. See "Summary of TCLP Results
of Waste Treated in Full-Scale Treatment Operations" attached hereto. Again,
this data was taken entirely from LDR compliance testing that satisfied all
QA/QC requirements. The quality control data are included in the attached
tables. The economics of stabilization treatment have become very
cost-effective in recent years. E.I. Digest, in its April 1996 issue, reports
that the average price for bulk disposal in hazardous waste landfills is
$135/ton. The price for crushing, stabilization, and disposal of slag wastes
is well below that figure.

RESPONSE

The Agency thanks the commenter for providing data and supporting information on
stabilization technology. While compelling, the Agency evaluated the data in "Overview of Dive
Data Sets Submitted in Response to Phase IV Proposed Rule: Re: Treatment of Metals", however
was unable to use it to corrobrate the standard, because all the data was composite.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 014
COMMENT c. Stabilization Data - Soil Table 3 provides a sampling of stabilization
projects involving soils contaminated with Lead that were received and
stabilized at an ETC member company in 1995 and 1996. As can be seen from the
data, soils with Lead levels up to 276.2 mg/1 in the untreated waste TCLP
were stabilized to meet UTS. The stabilization formulations for these soil
projects were designed to meet characteristic levels, yet readily met UTS as
well. This is consistent with the results obtained for battery slags and
foundry sands, discussed below. It is also evidence that stabilization can
meet UTS levels for a wide variety of wastes, including TC-contaminated
soils. TABLE 3 CONSTITUENT CONCENTRATION IN LEAD CONTAMINATED
SOILS BEFORE & AFTER STABILIZATION (Pb, mg/1 IN TCLP) [SEE HARD COPY
OF COMMENT P42A-00014 FOR TABLE 3]
19

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RESPONSE

The Agency thanks the commenter for providing data and supporting information on
stabilization technology.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER EE
SUBJECT LEAD2
SUBJNUM 014
COMMENT B. Lead-Bearing Foundry Wastes In the NOD A, EPA indicates that the American
Foundryman's Society has submitted comments that stabilization has not been
demonstrated as meeting UTS for foundry sands. ETC member companies have
reviewed their LDR compliance testing records and found substantial treatment
data on stabilization of foundry sand. For example, Table 4 summarizes the
TCLP Lead values in samples of untreated and treated (stabilized) foundry
sand from one ETC member-firm. The results show that all foundry sand wastes
met the UTS for lead. TABLE 4 CONSTITUENT CONCENTRATION IN
FOUNDRY SAND BEFORE & AFTER STABILIZATION - Pb, mg/1 IN TCLP
[SEE HARD COPY OF COMMENT P42A-00014 FOR TABLE 4] Also attached
are summary tables of data from another ETC member company which again
show that stabilization of foundry sand can achieve UTS levels for Lead and
underlying metal constituents. See "Foundry Sand, Summary of TCLP Results of
Waste Treated in Full-Scale Treatment Operations" attached hereto. QA/QC
Verification Reports for this data, as well as Total Metals and TCLP results of
the raw (untreated) waste, are also attached. ETC believes that foundry sand wastes
are very amenable to stabilization treatment to achieve UTS and, based on these results,
do not appear to require any significantly different stabilization formulations than
already in use to meet characteristic levels.

RESPONSE

The Agency acknowledges the presence of data on foundry sands in the records, and
agrees with the commenter that foundry sand wastes are amenable to stabilization treatment to
achieve the UTS. The Agency thanks the commenter for providing data and supporting the UTS
for lead.
20

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DCN               PH2A016
COMMENTER     Dupont Engineering
RESPONDER       MC
SUBJECT          LEAD1
SUBJNUM         016
COMMENT   DuPont supports alternative treatment standards for TC lead smelter
       metalwastes. DuPont supports modifications to the TC metal standards
       addressed in the NOD A if they are made in a manner which encourages recycle.
       DuPont believes that the Agency needs to set  standards which are achievable
       by the processes and technologies the Agency is chartered to encourage, such
       as smelting to recover usable materials. The Agency's position related to
       smelting of batteries as  stated in the NOD A is a good start, but a number of
       other lead- bearing wastes also have high lead content and recovery of that
       lead should also be encouraged.

RESPONSE

       The Agency acknowledges that, in the NOD A, EPA stated that "once the batteries are
smelted, the LDR requirements have been satisfied, and therefore the slag resulting from this
smelting need not be treated further.  The standards proposed under Phase IV (i.e., compliance
with UTS) would not apply to this slag, even if the slag exhibits a characteristic of hazardous
waste (i.e., contains lead in amounts greater than 5.0 mg/1 TCLP)." The Agency's statement was
based on the usual interpretation that "when EPA specifies a treatment method as the treatment
standard, residues resulting from the required treatment method are no longer prohibited from
land disposal unless EPA should otherwise specify."

       However,  after the publication of the NOD A, EPA realized that lead slag residues
resulting from the smelting of lead acid batteries were previously and appropriately identified as a
separate treatability group in the Third Third Final Rule (55 FR 22520, June 1, 1990). Therefore,
the status  of the residues as prohibited or non-prohibited is determined at the point the residues
are generated. Such residues would indeed require further treatment if they 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.

       Furthermore, EPA used new data from the treatment of lead slags and revised the lead
UTS and proposed the revised standards in the Second Supplemental Proposal on May 12,  1997.
The Agency observed high levels of lead in the lead slag, and therefore, believes that potential
threats from treated lead wastes (using RLEAD) are clearly not minimized.  Therefore, lead slags
that exhibit a lead  toxicity characteristic (i.e., have lead levels exceeding 5.0 mg/1 TCLP) 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 BOAT 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.
                                           21

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DCN PH2A018
COMMENTER Chemical Waste Mgmt
RESPONDER MC
SUBJECT LEAD1
SUBJNUM 018
COMMENT I. INTRODUCTION 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 notice of Data
Availability. See 61 Fed. Reg. at 21,418 (May 10, 1996). 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 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.

II. LEAD-BEARING SMELTER WASTES (61 Fed. Reg. at 21,419) In the
notice the Agency clarifies an issue regarding the applicability of the LDR restrictions
to slags resulting from the smelting of lead acid batteries. The Agency
states that once batteries are treated using smelting (RLEAD), the LDR
requirements have been satisfied, and the resulting slag need not be treated
further even if it continues to exhibit the characteristic for lead (D008).
Further, the Agency states that if a secondary smelter accepts materials
other than lead acid batteries, then LDR requirements could apply to the
slag, as with any other waste; however, if the lead smelter accepts some
materials closely related to lead acid batteries then the LDR status of the
slag should not be affected by these closely related lead-bearing items. CWM
believes that the Agency should publish a list of materials which secondary
lead smelters may accept and process without changing the LDR status of their
slags. Such a list will help those facilities that dispose of these slags
determine the regulatory status of the waste. Furthermore, CWM believes that
the list codified at 40 CFR Part 266, Appendix XI (Lead-Bearing Materials
That May Be Processed in Exempt Lead Smelters) will define those materials
that may be processed by secondary lead smelters.

RESPONSE

After the publication of the NOD A, EPA realized that lead slag residues resulting from the
smelting of lead acid batteries were previously and appropriately identified as a separate
treatability group in the Third Third Final Rule (55 FR 22520, June 1, 1990). Therefore, the
status of the residues as prohibited or non-prohibited is determined at the point the residues are
generated. Such residues would indeed require further treatment if they exceeded the TC for lead
22

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(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, EPA notes that the
issue of processing lead-bearing materials other than lead-acid batteries in secondary smelters
becomes irrelevant. Any residue resulting from the lead smelter, irrespective of the type of
materials smelted, that exhibit a lead toxicity characteristic (i.e., have lead levels exceeding 5.0
mg/1 TCLP), has to be treated for lead and any other underlying hazardous constituents present in
the slag residue.
                                            23

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DCN PH2A014
COMMENTER Environmental Technology Council
RESPONDER EE
SUBJECT LEAD2
SUBJNUM 014
COMMENT B. Lead-Bearing Foundry Wastes In the NOD A, EPA indicates that the American
Foundryman's Society has submitted comments that stabilization has not been
demonstrated as meeting UTS for foundry sands. ETC member companies have
reviewed their LDR compliance testing records and found substantial treatment
data on stabilization of foundry sand. For example, Table 4 summarizes the
TCLP Lead values in samples of untreated and treated (stabilized) foundry
sand from one ETC member-firm. The results show that all foundry sand wastes
met the UTS for lead. TABLE 4 CONSTITUENT CONCENTRATION IN
FOUNDRY SAND BEFORE & AFTER STABILIZATION - Pb, mg/1 IN TCLP
[SEE HARD COPY OF COMMENT P42A-00014 FOR TABLE 4] Also attached
are summary tables of data from another ETC member company which again
show that stabilization of foundry sand can achieve UTS levels for Lead and
underlying metal constituents. See "Foundry Sand, Summary of TCLP Results of
Waste Treated in Full-Scale Treatment Operations" attached hereto. QA/QC
Verification Reports for this data, as well as Total Metals and TCLP results of
the raw (untreated) waste, are also attached. ETC believes that foundry sand wastes
are very amenable to stabilization treatment to achieve UTS and, based on these results,
do not appear to require any significantly different stabilization formulations than
already in use to meet characteristic levels.

RESPONSE

The Agency acknowledges the presence of data on foundry sands in the records, and
the commenter conclusion that foundry sand wastes are amenable to stabilization treatment to
achieve the UTS. The Agency thanks the commenter for providing data and supporting the UTS
for lead. The Agency however is unable to use the data, however compelling, to corrobrate the
achievability of stabilization treatment for foundry sand waste because the data was based on
composite sampling and not the grab sampling that is required under the LDR program. The
Agency has collected new data that was presented the Second Supplemental, along with revised
treatment standards for metals which the Agency believes can be met by both stabilization and
HTMR facilities. See "Development of Metal Treatment Standards" in docket supporting today's
rule.
24

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MISCELLANEOUS COMMENTS ON THE PHASE IV NOTICE OF DATA
AVAILABILITY, MAY 10,1996

DCN P42A001
COMMENTER Env. Technologies Intl
RESPONDER SS
SUBJECT MISC
SUBJNUM 001
COMMENT 3. ETI's is most concerned with the fact that a majority of the metal waste
streams currently circumvent US rules and regulations via direct landfilling
in Canada. This is an obvious attempt to avoid the stricter US disposal
requirements and violates the spirit of the North American Free Trade
Agreement. MRRS was designed to meet the needs of the TC metals market, which
due to lack of enforcement, is exported away. If the open invitation to ship
waste to Canada without consequence remains, development of additional
capacity to treat these waste streams will be curtailed.

RESPONSE

Controls on export of metal waste from the U.S. is outside the scope of this rulemaking.
DCN P42A002
COMMENTER Battery Council/ABR
RESPONDER SS
SUBJECT MISC
SUBJNUM 002
COMMENT Our clients, the Battery Council International (BCI) and Association of
Battery Recyclers (ABR), jointly request that the public docket on the U.S.
Environmental Protection Agency's (EPA) Notice of Data Availability (NOD A) on
the Resource Conservation and Recovery Act (RCRA) Land Disposal Restrictions
(LDR) Phase IV proposed rule (61 Fed. Reg. 21418 (May 10, 1996)) be kept open
for submission of data on Toxicity Characteristic (TC)-metals contaminated
soils and related explanatory materials, until public comments are due on
EPA's proposed RCRA Hazardous Waste Identification Rule (FtWIR) - Contaminated
Media rule. I/ On April 30, 1996, representatives of BCI and ABR met with EPA
staff to discuss our November 20, 1995, comments on the RCRA LDR Phase IV
proposed rule regarding treatment standards for D008 (lead) and DO 10
(selenium) wastes. 2/ The May 10, 1996, Federal Register notice largely
reflected discussions held at the meeting. Among other things, it requested
additional data on TC metal-contaminated soil that would require treatment to
meet the Proposed LDR treatment standards. We intend to respond to this data
25

-------
request in this NODA as well as in EPA's proposed RCRA HWIR-contaminated
media rule, but the data submitted under the HWIR proposal will be more
complete than that which is currently available for this rulemaking.
Accordingly, BCI and ABR believe that comments on this issue can best be
presented in the context of EPA's proposed RCRA HWIR-Contaminated Media rule
and thus request that the record in this proceeding be held open until
comments are due in that one -- i.e., until July 29, 1996.3/ FOOTNOTES I/ BCI
is a non-profit trade association representing commercial entities involved
in the manufacture, distribution, sale, and reclamation of lead-acid
batteries. BCI's 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.
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. ABR is a
national trade association whose members include companies in the lead
recycling and manufacturing industries and the lead-chemicals industry.
Members of the ABR collectively represent approximately 85% of the lead
recycling capacity currently available in the United States. 21 See 60 Fed.
Reg. 43654 (August 22, 1995). 3/ 61 Fed. Reg. 18780 (April 29, 1996).

RESPONSE

The commenter expressed concern that the comment period of the May 1996 Notice of
Data Availability closed before the comment period for the Hazardous Waste Identification Rule
for Contaminated Media. The commenter's comment on the HWIR-media rule was more
complete than that on the NODA.

After this comment was received by EPA, the Agency decided to combine the Phase IV
LDR rule with the contaminated soil provisions of the HWIR-media rule. In developing this final
rule, EPA took into account the public comments on the HWTR media rule as well as those on the
various Phase IV proposals and NODAs. Thus, the commenter's concerns are moot.

DCN P42A010
COMMENTER EOF
RESPONDER SS
SUBJECT MISC
SUBJNUM 010
COMMENT

Though published under the title "Notice of Data Availability," the current notice largely
requests comment on issues for which the Agency lacks data, has never proposed regulatory
26

-------
language/and/or never articulated a rationale or methodology for reaching a particular position.
In many cases, the only material on which EPA seeks comment is the position of other
commenters.

       However, a NODA seeking reaction to other comments cannot be used to circumvent
EPA's obligation to propose a rule and provide a rationale for its position. In the instant NODA,
such specificity is lacking regarding regulatory language, the Agency's position, and/or the data on
which EPA bases its position.

RESPONSE
       The commenter was concerned with lack of specificity, rationale, and/or data on four
topics: the treatment standard for silver wastes,  the solid waste exclusion of recycled wood
preserving wastewaters, the capacity variance requested by FMC, and the treatment standards for
wood preserving wastes. On each of these matters, EPA has either decided not to promulgate the
options presented in the NODA, or has acquired the necessary data to support the Agency's
position as promulgated in today's rule.
                                           27

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Comments on First Phase IV Notice of Data Availability, May 10, 1996:


DCN     PH2A004
COMMENTER  Eastman Kodak
RESPONDER  AC
SUBJECT   SLVR
SUBJNUM   004
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 the waste generated by our customers, we are
       commenting on the proposed options for treatment standards for D011 Silver
       Toxicity Characteristic (TC) Wastes.  Kodak commends EPA for considering
       raising the Universal Treatment Standard (UTS) for silver, in response to
       comments previously submitted by Kodak.
The LDR Treatment Standard for Silver Should Not Be Lowered Because
       Silver's Low Toxicity Does Not Warrant it. The current D011 silver TC waste LDR
    treatment standard of 5 mg/L adequately minimizes threats to human  health and
       the environment.  There is no credible scientific justification for lowering
       the LDR standard to 0.30 mg/L silver (nonwastewaters) and 0.43  mg/L silver
       (wastewaters).  It is more appropriate to complete the silver TC review and
       remove silver from the TC list.  If silver is not removed from the TC list at
       this time, the D011 standard should be kept at 5 mg/L and the UTS should be
       raised to the same 5 mg/L level. Kodak believes that existing toxicological
       and environmental fate evidence is adequate to support 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.
       Silver was included as a D011 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 12,  1992 EPA removed
       silver from the Human Health Criteria in the Water Quality Criteria
                                          28

-------
       Recommendations. (57 FR 60910, December 12, 1992.) EPA also determined that
       silver does not bioaccumulate in freshwater fish and is not a hazard to
       wildlife, so the Office of Water did not include silver in Table 6-A,
       "Pollutants that are Bioaccumulative Chemicals of Concern" in the Final
       Water Quality Guidance for the Great Lakes System. (60 FR 15393, March 23,
       1995.) EPA stated in this Notice of Data Availability that "concern about
       aquatic toxicity remains."  The only studies Kodak believes exist that show
       significant aquatic toxicity from silver are based on the silver ion, usually
       silver nitrate, which is not the form of silver that occurs in natural
       ecosystems. The silver complexes that are formed in natural waters, such as
       silver chloride and silver sulfide, have very low toxicity.  Research
       results, previously shared with EPA (LeBlanc, et. al., 1984; Cooley, et. al.,
       1988), have documented the substantial reduction in toxicity of silver that
       occurs in natural waters (groundwater, surface water and sea water) due to
       complexation with natural ligands and adsorption to particulate matter and
       sediments. 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 effects. (Galbraith, et. al., 1972; Klusman
       and Edwards, 1976; Larsen, et. al., 1973; Smith and Carson, 1977; and
       Wachter, 1977). Kodak contacted EPA's Office of Solid Waste to clarify the
       aquatic toxicity concern, but was not given any further detail.  We believe
       the agency has an obligation to adopt the less stringent silver standard
       unless it can articulate its reasons for concerns about aquatic toxicity.
       Specificity is needed to give the regulated community an opportunity to
       respond to EPA's concerns. In conclusion, toxicity data already exist that verify
       that the current D011 silver LDR treatment standard minimizes threat to human
       health and the environment and should not be lowered.

Lowering the Silver D011 TC Characteristic Waste LDR Level is
       Counterproductive. EPA and the photographic processing industry encourage
       water conservation.  However, reducing the volume of photographic
       processing washwater raises the concentration (but not the amount) of
       silver discharged, increasing the likelihood that the silver concentration
       will exceed the lowered LDR standard.  It is difficult to justify the
       necessary capital expenditures for water conservation,  if this
       increase in the discharge concentration of silver causes it to fail the LDR
       treatment standard, with the resulting expenses.  Hence, a lower silver D011
       TC standard will discourage the conservation of wash water in photographic
       processing operations, working against the goal of water conservation.
       Recommendations For all these reasons, the appropriate agency action is to
       delete silver as TC waste criteria.  If silver is not removed from the TC
       list at this time, Kodak strongly supports EPA's first new option of keeping
       the D011 standard at 5  mg/L and promulgating the UTS treatment level for
                                           29

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silver at the same 5 mg/L level.

RESPONSE:

In its Phase IV Notice of Data Availability (61 FR, 21420, May 10, 1996) EPA proposed
leaving the treatment standard for D011 silver wastes at the TC level rather than lowering it to the
UTS level. EPA has since decided that the UTS level was the more appropriate standard in order
to fulfill the mandate of RCRA.
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 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
30

-------
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 wastewaters 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 PH2A005
COMMENTER National Mining Association
RESPONDER AC
SUBJECT SLVR
SUBJNUM 005
COMMENT These comments are submitted in response to the May 10, 1996 Federal Register
Notice issued by the United States Environmental Protection Agency ("EPA" or
"the Agency") pursuant to the Resource Conservation and Recovery Act
("RCRA"), entitled "Land Disposal Restrictions ("LDR") Phase IV Proposed Rule
-- Issues Associated With Clean Water Act Treatment Equivalency, and
Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic
Metal Wastes; Notice of Data Availability." 61 Fed. Reg. 21,418. The National
Mining Association ("NMA") comprises the producers of most of the nation's
coal, metals, industrial and agricultural minerals; manufacturers of mining
and mineral processing machinery, equipment, and supplies; and the
engineering and consulting firms, financial institutions and other firms
seeing the coal and hardrock mining industry. NMA's comments briefly address
two issues raised in the Notice of Data Availability: EPA's request for
additional data relating to a potential capacity variance for
newly-identified mineral processing wastes, and the Agency's proposal to
modify the Universal Treatment Standard ("UTS") for silver.
EPA Should Modify The UTS For Silver For All Wastes Finally, NMA supports
EPA's proposal to modify the UTS for silver which, as discussed in NMA's
April 24, 1996 comments on the Supplemental Proposal, is overly stringent. 61
Fed. Reg. at 21,420. At a minimum, the UTS for silver should be set at the
characteristic level (5.0 mg/1) for all wastes subject to the UTS. Such a
revised treatment standard should not be restricted in applicability only to
31

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DO 11 wastes, as EPA has acknowledged that silver does not have any adverse
effects on human health. 60 Fed. Reg. 66,344, 66,351 (Dec. 21, 1995)71 As
for environmental risks, the Agency has determined silver does not pose an
unacceptable risk to the environment at the levels far in excess of 5.0 mg/1.
See, e.g., 60 Fed. Reg. at 66,466. Thus it makes no sense, and is in fact
contrary to law, to require hazardous wastes be treated to reduce silver
concentrations below 5.0 mg/1 ~ a level which clearly meets the "minimize
threat" mandate of RCRA 3004(m)(l). FOOTNOTE I/ Indeed, the Safe Drinking
Water Act ("SDWA") Maximum Contaminant Level for silver, which formed the
basis for setting the RCRA characteristic level for that constituent, was
deleted from EPA's regulations more than five yeareago. 56 Fed. Reg. 3526
(Jan. 30, 1991). This action was taken because "the only adverse effect from
exposure to silver is argyria (a discoloration of the skin)." 54 Fed. Reg.
22,062, 22,139 (May 22, 1989).

RESPONSE:

-------
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 (BDAT).  (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 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     PH2A007
COMMENTER  Silver Council
RESPONDER  AC
SUBJECT    SLVR
SUBJNUM   007
COMMENT   The Silver Council is a recently formed advocacy group dedicated to working
       with the regulated and regulatory communities to develop and promote
       environmentally sound and cost-effective methods for the recovery and
       management of silver resulting from photographic processes. The Silver
       Council and our member organizations and companies have a vested interest in
       the new options being considered by EPA concerning treatment standards for
       D011  and other silver-bearing wastes. As stated in the May 10 notice, our
       predecessor organization, The Silver Coalition, submitted comments on the
       Phase IV proposed rule urging EPA not to promulgate treatment standards for
                                           33

-------
silver below the Toxicity Characteristic (TC) level of 5.0 mg/L.  The Silver
Coalition comments also provided information supporting the removal of silver
from the TC constituent list, an action currently being considered by the
Agency. The Silver Council continues to support the objective of removing
silver from the TC list. Until the Agency completes its evaluation of such
an action, however, The Council recommends that EPA finalize the first option
discussed in the notice (i.e., revise the Universal Treatment Standard (UTS)
for silver upward to the TC regulatory level of 5.0 mg/L).

Concerns about the Toxicity of Silver in the Environment are Unfounded

EPA has noted, in this notice and in several other rulemakings, that silver does
not pose a risk to human health.  The Agency remains concerned, however,
about the effects of silver on aquatic organisms. Building on the
information already provided to the Agency by the Silver Coalition, The
Silver Council is currently working with EPA to provide pertinent data to
address the Agency's concerns about the behavior of silver in aquatic
environments. The free ionic form of silver, which has the potential to be
quite toxic to aquatic organisms, is rarely found in natural systems and is
not a component of industrial wastes.  The silver ion complexes readily with
commonly occurring ligands and solids in natural waters to form stable,
insoluble compounds, making silver generally unavailable for biological
uptake.  The silver compounds that form in the ambient environment, as well
as those found in photographic-processing wastes, are several orders of
magnitude less toxic than the free silver ion.  Studies and hazard
assessments conducted by EPA and other groups indicating that silver poses a
risk to aquatic organisms evaluated the silver ion (usually silver nitrate),
which is not an environmentally relevant form of silver from which to draw
conclusions about toxicity to ecological receptors. The forms of silver that
occur in the environment (e.g., silver  chloride, silver sulfide, silver
oxide) have been shown to exhibit little or no adverse effects on aquatic
organisms.

The Silver Council Supports the First Option Presented in the
Notice

The Silver Council supports the first option (to revise the UTS value
for silver upward to 5.0 mg/L) because it establishes a single, uniform
treatment standard for all wastes containing silver, consistent with the
Agency's original intent in promulgating Universal Treatment Standards.
Silver is not included on Appendix VII  of 40 CFR Part 261 as the basis for
listing of any listed hazardous waste.  Silver is found in some
electroplating sludges (F006), but its  presence in these wastes hardly
                                     34

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warrants a stringent treatment standard below the TC regulatory level. It
would be arbitrary and inappropriate to subject listed wastes containing"
silver to a more stringent treatment standard for the metal than is required
for their characteristic counterparts, as described under the second option
proposed in the notice. Summary and Recommendations In summary, The Silver
Council urges EPA to finalize the first option set forth in the May 10 notice
concerning the treatment standard for silver-bearing wastes. Specifically,
The Silver Council supports the upward revision of the Universal Treatment
Standard for silver to a higher level, most preferably the TC regulatory
level of 5.0 mg/L. Promulgation of this option will subject all
silver-bearing wastes to the same constituent-specific treatment standard,
simplifying compliance and administrative requirements for generators and the
Agency. In addition, promulgating the UTS level for silver at the TC
regulatory level of 5.0 mg/L is a practical approach for dealing with D011
wastes while the Agency continues its review of the removal of silver from
the TC list.

RESPONSE:

In its Phase IV Notice of Data Availability (61 FR 21420, May 10, 1996) EPA proposed
leaving the treatment standard for D011 silver wastes at the TC level rather than lowering it to the
UTS level. EPA has since decided that the UTS level was the more appropriate standard in order
to fulfill the mandate of RCRA.
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 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
35

-------
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 (BDAT). (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 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 wastewaters 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 waste-water 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 PH2A010
COMMENTER EOF
RESPONDER AC
SUBJECT SLVR
SUBJNUM 010
COMMENT Treatment Standard for TC Silver Wastes In the NOD A, EPA solicits public
comment on whether the silver treatment standard for all wastes, or DO 11
wastes, should be weakened from the existing universal treatment standard
(UTS) of 0.43 mg/1 for wastewaters and 0.3 mg/1 TCLP for nonwastewaters to a
higher level, "such as" the TC regulatory level of 5.0 mg/1. Significantly,
EPA does not contend the UTS level is unachievable. Instead, EPA suggests
some higher number may be justified on a risk basis. Yet EPA provides no risk
36

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analysis in this rulemaking supporting a weaker treatment standard. Instead,
EPA merely notes it received risk data from other parties. See 61 FR 21420.
Accordingly, there is no evidence in the record indicating the methodology
EPA would employ to set a higher treatment standard, and on what toxicity
information the decision would be reached. EPA cannot use the NODA process to
bypass its obligation to properly propose its position for public comment.
Second, the lack of a risk-based methodology is particularly important in
this context since any weakening of the treatment standard could only be
justified on the basis of a "minimized threat" determination under Section
3004(m) of RCRA, which EPA has not attempted to render. Since the issue of
whether EPA data  and risk modeling techniques are sufficiently rigorous to
support a "minimized threat" treatment standard at this time is the focus of
a parallel rulemaking (known as HWIR), it is particularly inappropriate to
raise the issue in this rulemaking without even providing the remotest
suggestion  of whether and how the two rulemakings are related, and whether
all the issues raised in the HWIR rulemaking regarding proposed "minimized
threat" standards require repetition in this rulemaking as well. Moreover, in
the HWIR rule making, EPA proposed a silver minimized threat level for
wastewaters only. See 60 FR 66466 (December 21, 1995). There is no discussion
in the NODA of whether or why EPA would be reconsidering its HWIR position in
the instant rulemaking. Finally,  and most critically, EPA seems to be
ignoring the fact that silver is extremely toxic to environmental receptors.
This toxicity caused EPA to recently rank silver as among the highest hazard
metals in the RCRA universe, in large part because it received the maximum
aquatic toxicity score. See Setting Priorities for Minimization of Combusted
Hazardous  Waste, November 1995, Appendix IX (hereby incorporated by
reference).  Aquatic toxicity is relevant to the instant rulemaking since the
Section 3004(m) "minimized threat" standard expressly applies to the
protection of the environment.
In HWIR, EPA conducted an ecological risk analysis, although the flaws in the
analysis rendered it inadequate to ensure protection of the environment. See
Comments  of the Environmental Technology Council on HWIR, dated April 22,
1996, which are hereby incorporated by reference. For example, the HWIR
ecological risk assessment failed to employ a sediment benchmark for silver.
Id. at 88. See also Review of a Methodology for Establishing Human Health and
Ecologically Based Exit Criteria for HWIR, EPA Science Advisory Board, May
22, 1996, pp. 24-25, hereby adopted  and incorporated by reference. As noted
above, no ecological risk assessment  is provided or even discussed in the
instant NODA. This abject failure to assess the ecological risk posed by
silver, and/or propose a treatment standard based upon any relevant
methodology, violates both Section 3004(m) of RCRA and the Administrative
Procedures Act.
                                    37

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RESPONSE:

EPA agrees that it does not have an adequate basis for establishing a risk-based treatment
standard for silver, and is not setting such a standard at this time.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER AC
SUBJECT SLVR
SUBJNUM 014
COMMENT

C. Treatment Standards for DO11 Silver TC Wastes 'EPA has proposed to apply
the UTS for silver to DO 11 waste. 60 Fed. Reg. 43682 (Aug. 22, 1995). The UTS
for silver is 0.43 mg/1 for wastewaters and 0.30 mg/1 TCLP for
nonwastewaters. The proposal was based on a comprehensive evaluation of
treatment performance data from both listed and characteristic wastes for all
metal constituents in the UTS table. See BDAT Background Document for
Toxicity Characteristic Metal Wastes D004-D011 in the docket. In this NOD A,
however, EPA discusses the "possibility" of changing the UTS for silver for
all hazardous wastes, or setting the UTS for DO11 wastes only, to the TC
regulatory level of 5.0 mg/1. 61 FR 21420, col. 1. Neither the NODA, nor the
administrative record, provides any adequate technical basis for these
"options." Although silver poses significant ecological toxicity risks, EPA
asserts that "human health effects are not major." Id. Based on this
unsupported statement, the agency would take the ill-conceived step of
abandoning the technology-based UTS for silver-bearing wastes and setting a
new apparently "risk-based" standard at the TC regulatory level. Regrettably,
for EPA to announce this major departure from the BDAT methodology in a
Notice of Data Availability — without technical justification or discussion
of the implications for the LDR program — is plainly irresponsible. There is
no discussion in the NODA of the following significant issues: EPA does not
discuss how a treatment standard based simply on the TC regulatory level
would meet the "minimize threat" standard in RCRA 3004(m)(l). There is no
discussion, or supporting data, showing that the TC level for silver would
"substantially diminish the toxicity of the waste or substantially reduce the
likelihood of migration of hazardous constituents from the waste" as required
by the statute. Indeed, the TC level is the concentration at which a waste is
"clearly hazardous" warranting Subtitle C control, not the level at which the
toxicity and/or mobility of this hazardous constituent has been
"substantially" reduced. Nor is there any discussion in the NODA of the
relationship of the Hazardous Waste Identification Rule (FIWIR), and its
38

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       multi-pathway risk assessment approach, to this ostensible risk-based
       treatment level for DO11 wastes (and potentially all hazardous wastes that
       contain silver as an underlying hazardous constituent). Ironically, the HWIR
       multi-pathway risk analysis for silver resulted in a risk-based level of
       0.134 mg/kg total for nonwastewater. 60 FR 66431 (Table C-l). Given that
       silver poses significant aquatic toxicity risks, EPA does not explain how
       setting the LDR treatment standard at the TC toxicity level would minimize
       threats to the environment, as the statute requires. Because the current UTS
       levels have a sound technology basis, and the NOD A "alternative" to
       substitute the TC silver level does not have an adequate technical or legal
       basis in the record, it should be rejected.

RESPONSE

       EPA agrees that it does not have an adequate basis on which to set the TC level as the
minimize threat level for silver, and has decided to apply the technology-based UTS level to DO 11
wastes as a result.
DCN     PH2A016
COMMENTER  Dupont Engineering
RESPONDER  AC
SUBJECT   SLVR
SUBJNUM   016
COMMENT

       DuPont agrees with the Agency's proposal to set the LDR and UTS limits for
       D011 wastes at the TC limit and further supports the Agency's continued study
       of whether or not silver should be a TC metal. As the Agency notes in the
       NODA discussion of silver, there remain questions as to the hazards posed by
       silver and whether the hazards are chemical species specific or generally
       attributable to all silver compounds.  The Agency further notes that the risk
       to human health from  silver is low, and the risks posed by contaminants  in
       downgradient receptors (typically drinking water sources) are the basis of
       the land disposal restriction program. For those reasons, it is overly
       burdensome to ascribe a high hazard to silver in a leachate context and
       therefore regulate it for land ban purposes at the existing UTS level.
       DuPont therefore suggests that the Agency retain the TC LDR land ban at the
       TC level of 5 mg/1 and further that the Agency increase the UTS to that
       level until such time as it has a basis for regulating silver at a lower
       level.

RESPONSE:
                                          39

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In its Phase IV Notice of Data Availability (61 FR 21420, May 10, 1996) EPA proposed
leaving the treatment standard for D011 silver wastes at the TC level rather than lowering it to the
UTS level. EPA has since decided that the UTS level was the more appropriate standard in order
to fulfill the mandate of RCRA.
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 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
40

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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 wastewaters 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.
                                           41

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DCN     PH2A010
COMMENTER  EOF
RESPONDER  SB
SUBJECT   WOOD2
SUBJNUM   010
COMMENT   Solid Waste Exclusion of Recycled Wood Preserving Wastewaters In the instant
       NOD A, EPA announced it is reviewing the public comments it had solicited in
       August 1995 regarding a potential conditional exclusion from the definition
       of solid waste for recycled wastewaters used in the wood preserving industry.
       However, in neither the August 1995 solicitation nor the instant NODA does
       the Agency actually propose regulatory language for an exclusion, or
       otherwise discuss the nature or content of any conditions that may be part of
       the exclusion. Therefore, the NODA cannot be construed as a proposed rule
       from which final agency action can be taken.  There is no proposal before the
       public on which comment can be focused. Moreover, despite the August 1995
       solicitation, very little data were provided by the wood preserving industry.
       The only set of comments containing more than conclusory statements was
       submitted by the American Wood Preservers Institute (AWPI), and it merely
       contains aggregate statistics on water usage.  No quantitative information was
       provided on: (1) the percentage of collected wastewater and precipitation
       actually recycled at each waterborne facility;!/ (2) the percentage and
       quantities of wastewaters and precipitation collected but not recycled at
       nonwaterborne plants; (3) the extent to which plants within the industry
       cover drip pads to prevent contact with precipitation and the reasons for
       doing so if water is an economically desired process input; and (4) the
       percentage of facilities that employ closed-loop piping to convey the
       wastewaters to their ultimate reclamation and reuse, the means of conveyance
       employed by other facilities, the method of construction employed for such
       piping or other conveyances, and the release  record of such piping or
       conveyance systems.  FOOTNOTE I/ AWPI  merely states "reuse is the standard",
       and refers to the zero discharge requirements of the Clean Water Act, but
       such requirements do not apply where the wastewater is injected or otherwise
       disposed by means other than discharges into POTWs or surface waters.
       As the State of Oregon suggests in its comments, not all wood preserving
       facilities are the same. Therefore, real data are needed to determine whether
       a national rule is appropriate given the case-by-case exemption authorities
       already in the rules. Indeed, as part of its consideration, EPA should
       investigate whether its Regions or authorized states have received
       case-by-case requests for an exemption, and the bases for resolving those
       exemption requests. In addition to the procedural obstacles to further
       consideration of the exclusion in the Phase IV LDR rulemaking, critical
       substantive issues remain. Of paramount importance is the status of the
       current drip pad requirements in the event an exclusion for wastewaters is
                                           42

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promulgated. AWPI contends the Subpart W drip pad standards would apply
because nonwastewaters on the pad are still regulated. However, as noted by
the State of Oregon, the nonwastewaters (such as wood chips) may not be
generated in sufficient quantities to exceed the 100 kg/mo small quantity
generator threshold. AWPI's argument that EPA would have jurisdiction over
wastewater releases into the environment even if the drip pad standards do
not apply completely misses the point. RCRA's design and construction
standards are intended to prevent or minimize releases. See Section 1003
(a)(5) of RCRA. Relying on after-the-fact cleanup authorities to protect
human health and the environment is not an adequate or cost effective means
of ensuring protection of human health and the environment. In addition, the
drip pad closure standards in 40 CFR 265 Subpart W require the facility
owner/operator to attempt clean closure of all hazardous waste residues and
conveyances contaminated with hazardous waste. If wood preserving wastewaters
are not considered hazardous wastes, the equipment and conveyances used to
manage the wastewaters will not be subject to these 'closure requirements, and
financial responsibility for closure may not include appropriate disposition
of such equipment and conveyances.

RESPONSE

EPA agrees with the commenter that the May 10, 1996 NOD A "cannot be construed as a
proposed rule from which final agency action can be taken." It is for this reason that the Agency
proposed an exclusion and provided specific regulatory language in the May 12, 1997 LDR Phase
IV Second Supplemental Proposal, which is being finalized today. EPA also agrees with the
commenter that the NODA did not specific information on the data items that the commenter
mentioned. Although this information would be useful to have, we do not consider it to be
essential to the limited and conditional exclusion that we are finalizing today. In fact, the
industry's practice of generating and reusing wastewaters on-site at waterborne facilities to treat
wood is well known to EPA. The exclusion is limited to only these materials, and only then when
specific conditions are met.

The Agency did not, as the commenter suggested, "investigate whether its Regions or
authorized states have received case-by-case requests for an exemption, and the bases for
resolving those exemption requests." Again, this would be useful information to have. It is not,
however, essential to determining whether a limited and conditional national exclusion is sensible
policy. EPA regional offices and RCRA authorized states had ample opportunity to oppose this
exclusion had they so desired. In fact, those comments that we did receive from the states were
supportive of our efforts, provided that we include some of the conditions that we are finalizing
today.

EPA agrees with the commenter's concerns about the Subpart W drip pad standards. In
order to meet the conditions of the exclusion being finalized today, EPA is requiring that a wood
43

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preserving plant's drip pads must be in compliance with the standards in Part 265, Subpart W,
regardless of whether the plant generates a total of less than 100 kg/month of hazardous waste.
The fact that Subpart W requirements will still apply addresses the commenters concern about the
absence of particular closure requirements should plants not be required to comply with Subpart
W. Finally, the Agency does not plan to rely "on after-the-fact cleanup authorities to protect
human health and the environment," as the commenter suggests. The conditions placed upon this
exclusion are there to assure that the exclused wastewaters and spent solutions are reused for
their original intended purpose and not released to the environment.
DCN PH2A014
COMMENTER Env. Technology Council
RESPONDER SB
SUBJECT WOOD2
SUBJNUM 014
COMMENT III. Solid Waste Exclusion of Recycled Wood Preserving Wastewaters EPA
states in the NOD A that it is reviewing industry comments in the record on a
conditional exclusion from the definition of solid waste for recycled
wastewaters used in the wood preserving industry. EPA has not proposed any
regulatory language, however, or otherwise discussed the basis or conditions
for such an exclusion. As a result, EPA has not provided adequate notice and
opportunity for public comment. ETC believes that an industry-wide exclusion
of this type must be fully supported in the record. For this exclusion,
however, no information has been provided on such technical issues as (1) the
percentage and quantities of collected wastewater actually recycled at wood
preserving facilities; (2) the percentage and quantities of wastewaters not
recycled; (3) the extent to which wood preserving facilities cover drip pads
to prevent contact with precipitation and resulting contamination; (4) the
percentage of facilities that employ closed-loop piping to convey the
wastewaters for reclamation and reuse; and (5) the type of piping and the
record of releases from such piping or other conveyances. Not all wood
preserving facilities operate in the same way. Therefore, hard information on
all facilities in the industry is needed to evaluate a national exclusion.
Given the inadequate notice and explanation, and given the lack of technical
support in the record, a national exclusion for wastewater used in the wood
preserving industry is not appropriate.

RESPONSE

EPA agrees with the commenter that the NODA did not provide sufficient information,
especially given the absence of regulatory language, to constitute a proposal to exclude wood
preserving wastewaters from the definition of solid waste. However such information was
provided in the May 12, 1997 LDR Phase IV Second Supplemental Proposal, which is being
44

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finalized today. EPA agrees with the commenter that we have not provided specific information
on the data items 1-5 that the commenter mentioned. Although this information would be useful
to have, we do not consider it to be essential to the limited and conditional exclusion that we are
finalizing today. In fact, the industry's practice of generating and reusing wastewaters on-site at
waterborne facilities to treat wood is well known to EPA. The exclusion is limited to only these
materials, and only then when specific conditions are met.

DCN PH2A021
COMMENTER J. H. Baxter Co.
RESPONDER SB
SUBJECT WOOD2
SUBJNUM 021
COMMENT B. Exclusion for Wood Preserving Wastewaters EPA's notice also solicits
comments on EPA's proposal to exclude from the definition of solid waste wood
preserving wastewaters that are returned to the process from which they
originated, provided that drippage from treated wood is collected and managed
on drip pads in compliance with Subpart W. 61 Fed. Reg. 21422. J.H. Baxter
believes the evidence in the record is sufficient to support a national
exclusion along the lines proposed by EPA. This exclusion will in no way
reduce the level of protection afforded by Subpart W. It will create a more
rational system of regulation with Subpart W as one of its cornerstones.

RESPONSE

The Agency appreciates the commenter's support of an exclusion from the definition of
solid waste for wood preserving wastewaters that meet certain conditions. EPA has finalized
such an exclusion in today's rule.
45

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50272-101

REPORT DOCUMENTATION
PAGE
11. Report No.
EPA530-R-99-020d
12.
I
I
I
13. Recipient's Accession No.

PB99-155855
J
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 4: Comments Related to First Notice of Data Availability, May 10,1996
5. Report Date
ApriM998
6.
7. Authors)
8. Performing Organization Rept. No.
9. Performing Organization Name and Address

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

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

Responds to public comments related to lead and silver treatment standards. Addresses the wood preserving wastewater exclusion and
miscellaneous issues.
17. Document Analysis a. Descriptors
b. Identifiers/Open-Ended Terms
c. COSATI Field Group
18. Availability Statement
RELEASE UNLIMITED
119. Security Class (This Report) 121. No. of Pages
| UNCLASSIFIED |
| 20. Security Class (This Page) j 22. Price
| UNCLASSIFIED |
(SeeANSl-Z39.18)
OPTIONAL FORM 272 (4-77)
(Formerly NTIS-35)

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