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 7: Comments Related to Treatment Standards for Contaminated Soils


United States      Solid Waste and      EPA530-R-99-020g
Environmental Protection   Emergency Response    NTIS: PB99-155 889
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 7: Comments Related to
Treatment Standards for Contaminated
Soils
      Printed on paper that contains at least 30 percent postconsumer fiber

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CHAPTER ONE

MINIMUM LDR TREATMENT REQUIREMENTS FOR
MEDIA UNDER PROPOSED §269.30 - PART 2: SETTING LDR TREATMENT
STANDARDS
l.A SUPPORT FOR VARIOUS COMPONENTS OF THE PROPOSED APPROACH

1.A.1 Nonanalyzable Constituents

Several commenters support EPA's general approach of using treatment of analyzable constituents
as a surrogate for treating nonanalyzable constituents.

• "Shell agrees with EPA that the few organic constituents that do not have analytical
methods will probably be treated adequately by treating an analyzable organic surrogate
constituent. In addition, the constituent of concern is usually a carcinogen or other
common constituent that is easily analyzed or one for which a surrogate is available. In our
remediation projects, we have never had a problem with identifying a proper constituent to
target for treaiment or a practical surrogate." (115)

Response: EPA appreciates and acknowledges the support.

• "It is appropriate not to propose treatment standards for nonanalyzable organic
constituents found in hazardous contaminated media since treating the analyzable
constituents to meet treatment standards should provide adequate treatment of any
nonanalyzable constituents." (42)

Response: EPA appreciates and acknowledges the support.

• "We support EPA's proposal that treatment of analyzable constituents to meet their
applicable standards provides adequate treatment for any nonanalyzable constituents. The
alternative to specify a treatment technology for any nonanalyzable constituents would
limit flexibility in selecting remedial alternatives." (35)

Response: EPA appreciates and acknowledges the support.

• "EPA has proposed that nonanalyzable organic constituents need not be treated per se.
because treatment of surrogates should assure effective treatment of such constituents.
EPA has solicited comments regarding the appropriateness of its surrogacy approach. 61
Fed. Reg. 18810/1.

In contrast to EPA's approach, CMA believes such technical questions demonstrate why
treatment determinations should be made on a site-specific and material-specific basis.
Further, CMA does not believe treatment should be required for nonanalyzable
constituents. Because such constituents are not analyzable, there may be no basis on which
to conclude the constituents are present in concentrations posing any risk or warranting
treatment. Imposing LDR treatment obligations on such constituents imposes treatment for
treatment's sake. To the extent that EPA nevertheless requires treatment of nonanalyzable

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constituents. CMA does agree that EPA's proposed surrogacy approach is a defensible and
sensible alternative. Although CMA is unable to submit any data at this time. CMA
believes the treatment of similar organic constituents for which analytic protocols exist
will significantly reduce any potential risks or threats posed by nonanalyzable constituents.

For media contaminated solely by nonanalyzable constituents. EPA has proposed to
require treatment by the methods applicable to the underlying wastes. EPA has solicited
comment regarding whether different technologies should be allowed for treatment of
media containing solely nonanalyzable constituents. 61 Fed. Reg. 18810/1.

If EPA requires treatment of nonanalyzable constituents in media which contain no
analyzable constituents. CMA believes EPA should allow treatment by technologies other
than those specified in the LDRs for the corresponding P or U list I chemicals. Additional
technologies may be more appropriate on a site-specific or media-specific basis than those
previously determined to be BOAT in an inapplicable context." (112)

Response: EPA appreciates CMA's support for the Agency's proposed approach to media
contaminated with both analyzable and nonanalyzable constituents. EPA continues to believe that
treatment of analyzable constituents will typically provide an appropriate surrogate for treatment of
nonanalyzable constituents. Regarding treatment of soil contaminated only by nonanalyzable
constituents, the Agency continues to believe that treatment should be by the method specified for
the contaminating waste (usually a U or P listed waste), since no surrogate constituents would be
available to assess treatment performance. In situations where, as CMA is concerned, the
specified technology is not appropriate for any given hazardous contaminated soil, a facility
owner/operator could apply for approval of an alternative treatment method under the provisions
of 40 CFR 268.40.

• "EPA invites comment on the approach of not proposing treatment standards for
non-analyzable organic constituents found in hazardous contaminated media when such
media contains multiple organic hazardous constituents.

Comment: For those organic constituents that are non-analyzable and contained in media
contaminated with anaiyzable organic constituents, Ohio EPA does not oppose the
approach of using analyzable constituents as an indicator of treatment for non-analyzable
constituents. However, such an approach should only be implemented when the
non-analyzable constituents and the analyzable constituents are of the same chemical class
(which includes evaluation of structure and functional groups). This approach is somewhat
similar in concept to the chemical class groupings used in the HWIR-process waste rule to
establish exit concentrations for hazardous constituents that are non-analyzable." (L01)

Response: EPA appreciates Ohio EPA's support of the proposed approach to treatment of
nonanalyzable constituents. Furthermore, the Agency agrees that, for analyzable constituent to
serve as an appropriate surrogates for nonanalyzable constituents the analyzable constituents
should generally be in the same chemical family. EPA notes, however, that in many some
instances other constituents from a different chemical family or class may also serve as good
surrogates to monitor the treatment of nonanalyzable constituents since they may enable to monitor
the destruction or removal of the nonanalyzable constituent of concern. One example is ensuring
the removal of a nonanalyzable constituent from a contaminated soil via thermal desorption by

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monitoring in the contaminated soil a constituent amenable to analytical testing that it is also as
difficult to treat as the nonanalyzable one (even if they are from another chemical family) provided
these constituent is in sufficient concentrations to be measured prior and after treatment.  Likewise.
other chemical family constituents may serve as indicators for the destruction of the nonanalyzable
constituent of concern for some chemicals may also serve this purpose.

•       "EPA requests comment on whether media contaminated with non-analyzable hazardous
        constituents should be treated per the LDR universal treatment standards  or should other
        technologies be allowed for treatment of these media.

        Comment: It is most appropriate to treat contaminated media that contain only
        non-analyzable constituent(s) in accordance with the LDR universal treatment standards
        specified in 40 CFR part 268 for the hazardous constituent(s) in question. However, it may
        be feasible to use other technologies for the treatment of media contaminated with
        non-analyzable hazardous constituents if the alternative technology is proven to effectively
        treat analyzable hazardous constituents, of the same chemical class as the nonanalyzable
        constituent, when contained in media." (L01)

Response: EPA appreciates and acknowledges the support.

        1.A.2   Proposed Treatment Standards

Several commenters generally support the proposed treatment standards for contaminated media.
arguing that Part 268 treatment standards and modified standards for soil are  achievable and
applicable.

•       "The proposed treatment standard for hazardous contaminated media is acceptable." (L02)

Response: EPA acknowledges and appreciates the support.

•       "The ETC generally supports the proposed treatment standards for contaminated media:

        •       For hazardous media other than soils-like groundwater and sediments-the
               proposal would require treatment to meet the LDR treatment requirements
               applicable to the hazardous waste contained in the media.

        •       For organics in soils the proposal would require treatment to reduce above the
               Bright Line constituent concentrations by 90%.

        •       For metals in soils, the required 90% reduction would apply either to the total
               concentrations of metals (for technologies that remove metal constituents) or to
               concentrations of metals in the leachate (for solidification-type technologies).

        •       For both organics and metals in soils, treatment would be "capped" at 10-times
               UTS and no treatment would be required beyond that point.

       The ETC recognizes the unique characteristics of contaminated soil that affect treatment.
       Numerous members of the ETC apply a wide range of treatment technologies to

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contaminated soil. Over the last 10 years the ETC has commented extensively on
treatment of contaminated soil in various LDR rulemaking initiatives. Most significantly.
the ETC submitted substantial treatment data and a comprehensive review of numerous
innovative treatment technologies for contaminated soil in our comments on EPA's
proposed Phase 2 LDR regulations. See Comments of the Hazardous Waste Treatment
Council in Docket Number F-92-CS2P-F. Phase II LDR Proposed Rule. 58 Federal
Register 48092 (Sept. 13. 1993), which are incorporated herein by this reference.

As supported by the data submitted with these incorporated comments to the Phase II LDR
rule, innovative treatment technologies are capable of treating wastes to both the UTS and
to 10 x UTS. The data shows that 91% of the time innovative technologies are capable of
meeting treatment standards at 10 x UTS. Furthermore, as noted by EPA (Page 18807/2).
the lOxUTS standard received strong support from many commenters on the proposed
Phase II LDR rule.

The ETC does not agree that allowing the Director to require more stringent LDR
standards on a site-specific basis provides a sufficient safety net (Page 18807/3).
Minimum treatment requirements should not be left to discretion. Otherwise, the Agency
is leaving to chance whether a given state official will recognize that greater treatment for
a given constituent is appropriate. RCRA § 3004(m)(l) requires best demonstrated
available treatment, in order to provide for a consistent level of treatment of hazardous
constituents for a particular type of waste. A discretionary standard is not one that reduces
the hazards of the contaminants to the greatest extent achievable, and does not minimize
the'threat of exposure. Such a discretionary approach is unnecessary since the available
treatment data from the Phase II LDR proposed rule clearly shows that a 1 OxUTS standard
alone is achieved by a wide range of technologies commonly used in remediation of soil.

The ETC supports and agrees with EPA that for media other than soil, the Part 268
treatment standards are both achievable and applicable. Also, ample treatment capacity
exists for these wastes, both in on-site applications as well as off-site commercial
facilities." (88)

Response: EPA acknowledges and appreciates the support of the soil treatment standards.
Furthermore. EPA agrees that, as discussed in more detail in the preamble to today's action, site-
specific discretion to require a more stringent standards is not required to ensure that the new soil
treatment standards meet the standard of 3004(m)(l). EPA notes that the standard of 3004(m)( 1)
is not, as the commenter asserted, "best demonstrated available treatment" but, instead, "those
levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or
substantially reduce the likelihood of migration of hazardous constituents from the wastes so that
short-term, and long-term threats to human health and the environment are minimized."

Several commenters urge the Agency to maintain the LDR treatment standard of 90%/10 times the
UTS as designated in the proposed HWIR-Media.

• "Although EPA recites the number of commenters supporting various of its proposed
options. CMA believes sound public policy is based on the nature and quality of the
comments and data, and not on the number of individuals supporting a given option.
Thankfully, EPA agrees, and has proposed to adopt a 90% reduction standard capped at

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10 x UTS. 61 Fed. Reg. 18807/2. Although CM A believes no generic standard should be
adopted for the reasons set forth above, this option better assures EPA's generic proposal
will be achievable at a greater number of the sites to which it will apply." (112)

Response: EPA acknowledges and appreciates the support.

• "EPA's proposal to set modified treatment standards for more highly contaminated
materials at 90 percent reduction or 10 times the Universal Treatment Standard (UTS),
whichever is less stringent, is encouraging. It is certainly a step in the right direction for
EPA to set LDRs for contaminated media at ten times the UTS. A UTS standard for
contaminated media would clearly be unachieveable. inflexible and costly. Moreover, it is
beneficial for the Agency to allow treatment technologies other than incineration for
remediation wastes. Alternative treatment technologies are less costly and pose less
environmental risks than does incineration.

While EPA's proposed LDR treatment requirements appear to have merit. API is uncertain
whether or not adjustments are needed to the 90 percent reduction and/or ten times the
UTS requirements. API is currently collecting and analyzing data to evaluate the technical
feasibility of these proposed LDR requirements. API will share its analysis with the
Agency once it is completed and requests that its analysis be incorporated into the docket
for this rulemaking." (39)

Response: EPA acknowledges and appreciates the support.

• "Doe Run believes that as proposed, the HWIR-Media treatment standard is reasonable.
and agrees with the Agency that the proposed treatment standards "reflect appropriate
treatment technologies and strategies for environmental media, and the site-specific nature
of cleanup activities more accurately." 61 Fed. Reg. 18806. However. Doe Run is
concerned that in finalizing the HWIR-Media, the Agency may require treatment not only
to the 90% reduction or 10 times the UTS standard, but also to UTS levels, based on the
Toxicity Characteristic Leaching Procedure ("TCLP"). See 40 C.F.R. 68.41 (UTS
Table).'1 (37)

• "Doe Run supports the concept of a risk-based approach for existing from the RCRA
Subtitle C system, and urges the Agency to maintain the LDR treatment standard of
90%/10 times the UTS as designated in the proposed HWIR-Media. This will help to
ensure that the HWIR-Media encourages and facilitates the removal and recycling of lead
contained in soil by means of such minimal-risk treatment technologies as soil
washing/leaching." (37)

Response: EPA acknowledges and appreciates the support.

One commenter supports EPA's decision to establish soil-specific LDR standards. Another
comments that stabilization of lead contaminated soil will meet the proposed standard. [Also see
Chapter 21 comments on lead.]

• "To the extent that EPA decides apply LDR requirements to remediation wastes. Asarco
supports EPA's decision to establish soil-specific LDR standards that take into account the

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"distinct treatment issues" associated with contaminated soils. It is appropriate for EPA to
consider media-specific factors, such as those associated with soils, in setting appropriate
LDR levels that meet EPA's statutory responsibility under RCRA to set standards at levels
that "minimize threats."" (75)

Response: EPA acknowledges and appreciates the support.

• "EPA requests comments as to whether the proposed HWIR-Media treatment standards
for soils are achievable. TDS receives a significant quantity of characteristically hazardous
lead contaminated soils which are stabilized to remove the characteristic. The regulatory
level for the lead characteristic is 5.0 mg/'l.

The data in Table 3 show that stabilization of lead exceeding the 5.0 mg/1 regulatory level
readily reduces the lead to under 1 ma/1 in the TCLP extract of the stabilized media. The
% reduction in leachable lead exceeds 99%. TDS believes that stabilization of metal
bearing wastes can easily meet the 90% standard." (25)

Response: EPA acknowledges and appreciates the support.

One commenter suggests that the 90% reduction/lOxUTS treatment standard for soil should be
limited to soils managed under an approved RMP. [Also see Chapter 16 comments on RMPs.]

• "The 90% reduction/lOxUTS treatment standard proposed today for soil should be limited
to soils managed under an approved RMP. Soil treatment standards should not be adjusted
to account for the lack of State or Agency oversight. Hazardous debris should be subject to
treatment standards similar to the standards in the proposed rule for contaminated media."
(42)

Response: As discussed further in the preamble to today's action, based on further consideration
of the issue and consideration of other comments. EPA is persuaded that the new soil treatment
standards should be made available to all contaminated soil that is subject to LDRs and not limited
to soils managed under a remedial action plan and has revised the final regulations accordingly.

Another suggested an approach for demonstrating whether the 90% reduction has been achieved.

• "Although EPA, on page 18816. states that they are in the process of developing guidance
on how to sample, test, and analyze contaminated media the proposed rule does not
specify how the 90% reduction is to be demonstrated. Contaminated soils are frequently
non-homogenous and typically exhibit a wide range of concentrations. It also is possible
that some of the contaminants present are naturally occurring. DoD recommends that the
90% reduction standard be based on 90% of the highest known concentration subject to
treatment. DoD also requests that when establishing baseline concentrations, generators
not be required to sample above and beyond what is ordinarily used to establish the nature
and extent of contamination (that is. generators should not be required to sample for the
complete list of underlying hazardous constituents in §268.48). This would not be an
efficient use of remediation funds." (97)
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Response: As discussed in the preamble to today's final rule. EPA continues to believe that, when
establishing representative concentrations of hazardous constituents in soil from which the 90%
reduction portion of the soil treatment standard should be measured, normal soil characterization
techniques and procedures should be used. EPA further agrees that the types of soil sampling and
site characterization typically conducted during remedial activities should be appropriate for
identifying underlying hazardous constituents present in any given volume of contaminated soil.
As discussed in the preamble to today's final rule. EPA is confident that sampling and analysis can
be appropriately targeted to ensure that it is focused on appropriate hazardous constituents or
classes of hazardous constituents and does npt intend that sampling and analysis would routinely
be required for the entire suite of universal treatment standard constituents.

Regarding naturally occurring hazardous constituents, in consideration of this and other comments.
EPA has concluded that treatment to comply with the soil treatment standards should not be
required if constituent concentrations fall below naturally occurring background concentrations.
provided the soil will continue to be managed on site or in an area with similar natural background
concentrations. If soil will be sent for land disposal off-site, compliance with the new soil
treatment standards is required, since the Agency believes that natural background concentrations
on-site will not automatically correspond to natural background concentrations at a remote land
disposal facility. This issue is discussed in the preamble to today's final rule and in responses to
more specific comments in section 1.A.4 of this document.

Another commenter suggested that voluntary cleanups also be able to utilize the 10 x UTS or 90%
reduction standards.

» "In order to maximize the number of cleanups initiated nationwide, as much of the
remediation program as possible should be self-implementing. Towards that end. parties
interested in performing voluntary cleanups should be able to utilize the "10 x UTS or
90%" treatment standard to guide remedial efforts outside the scope of Subtitle C." (81)

Response: As discussed further in the preamble to today's action, EPA is persuaded that the new
soil treatment standards should be available to all hazardous contaminated soil, including soil
managed during voluntary cleanups, and has revised the final regulations accordingly.

1.A.3 Support for Scope of Wastes Subject to Treatment

Several commenters support EPA's decision to subject remediation waste to treatment only for
those hazardous constituents (e.g., constituents of concern) that originated from the hazardous
waste. [Also see Chapter 6 comments regarding contained-in determinations.]

« "The ETC also agrees with EPA's discussion of "Constituents Subject to Treatment"
(Pages 18809-! 0). In particular, we agree that the underlying hazardous constituents must
also be addressed for media contaminated with characteristic wastes or exhibiting a
characteristic." (88)

Response: EPA acknowledges and appreciates the support.
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• "Testing of the contaminated media should be limited to the specific constituents
that cause the waste contained in the media to be a listed waste, or that contribute to
its characteristic of a hazardous waste.

CSI agrees with this focused approach, and would not like to see it expanded in the final
rule. Appendix A to the proposed 40 CFR 269 includes many compounds for which
testing would be expensive, if not impossible. The detection limits can be very low. and
many constituents do not include Bright Line Numbers." (44)

Response: Despite this support of the proposed approach, on further consideration. EPA was
persuaded by other comments that it is prudent to apply the logic of the Chemical Waste court both
to soil contaminated by listed hazardous waste and to soils which exhibit a characteristic of
hazardous waste.

As the Agency explained in the 1990 proposal, contaminated soils are potentially contaminated
with a wider range of hazardous constituents than process wastes -- in no small part because they
generally reflect uncontrolled disposal settings. 58 FR at 48124 (September 14. 1993). Since this
is the type of circumstance addressed in the Chemical Waste opinion (i.e.. because they are
generated by many different processes and under different circumstances, characteristic wastes can
also contain a wide range of hazardous constituents), the Agency is persuaded that it is prudent to
apply the logic of the Chemical Waste opinion and require treatment of all underlying hazardous
constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16 - 18 (D.C. Cir 1992).
Therefore, today's final rule requires that all contaminated soil subject to the LDRs be treated to
achieve the soil treatment standards for each underlying hazardous constituent reasonably expected
to be present in the soil when such constituents are initially found at concentrations greater than
ten times the universal treatment standard. Characteristic soil must also be treated, in the case of
TC soil, for the TC constituent and. in the case of ignitable, corrosive, or reactive soil, for the
characteristic property.

As discussed further in the preamble to today's action, EPA is confident that sampling and
analysis can be appropriately targeted to ensure that it is focused on appropriate hazardous
constituents or classes of hazardous constituents and does not intend that sampling and analysis
would routinely be required for the entire suite of universal treatment standard constituents. Other
commenters support this approach.

• "TREATMENT REQUIREMENTS (40CFR269.30): It is appropriate to require
hazardous contaminated media be treated for each UTS constituent that originated from
the contaminating hazardous waste, and that is subject to the treatment standard for such
hazardous waste as it was generated." (42)

Response: Despite this support of the proposed approach, on further consideration, EPA was
persuaded by other comments that it is prudent to apply the logic of the Chemical Waste court both
to soil contaminated by listed hazardous waste and to soils which exhibit a characteristic of
hazardous waste.

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is the type of circumstance addressed in the Chemical Waste opinion (i.e.. because they are
generated by many different processes and under different circumstances, characteristic wastes can
also contain a wide range of hazardous constituents), the Agency is persuaded that it is prudent to
apply the logic of the Chemical Waste opinion and require treatment of all underlying hazardous
constituents. See Chemical Waste Management v. US EPA. 976 F.2d at 16 - 18 (D.C. Cir 1992).
Therefore, today's final rule requires that all contaminated soil subject to the LDRs be treated to
achieve the soil treatment standards for each underlying hazardous constituent reasonably expected
to be present in the soil when such constituents are initially found at concentrations greater than
ten times the universal treatment standard. Characteristic soil must also be treated, in the case of
TC soil, for the TC constituent and. in the case of ignitable. corrosive, or reactive soil, for the
characteristic property.

• "With respect to the LDR treatment standards proposed under the Bright Line Approach.
Flying J supports the use of Part 261 Appendix VII constituents to make a "contained-in"
determination. Flying J also supports the attachment of treatment standards to only those
constituents for which treatment would have been required if the wastes were not
contained in environmental media 61 Fed. Reg. 18809. The treatment standards should
not attach to all potentially hazardous constituents. For instance, application of LDRs to
all hazardous constituents would constitute over-regulation and would undermine the goal
of reducing unnecessary Subtitle C regulation of remediation wastes. Flying J also concurs
with the Agency's longstanding policy that in cases where the origin of the contaminants is
unknown, the lead agency may assume that contaminants in the media did not originate
from listed hazardous wastes. Flying J urges EPA to retain this aspect of the proposal in
the final rule." (66)

As the Agency explained in the 1990 proposal, contaminated soils are potentially contaminated
with a wider range of hazardous constituents than process wastes — in no small part because they
generally reflect uncontrolled disposal settings. 58 FR at 48124 (September 14, 1993). Since this
is the type of circumstance addressed in the Chemical Waste opinion (i.e., because they are
generated by many different processes and under different circumstances, characteristic wastes can
also contain a wide range of hazardous constituents), the Agency is persuaded that it is prudent to
apply the logic of the Chemical Waste opinion and require treatment of all underlying hazardous
constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16 - 18 (D.C. Cir 1992).
Therefore, today's final rule requires that ail contaminated soil subject to the LDRs be treated to
achieve the soil treatment standards for each underlying hazardous constituent reasonably expected
to be present in the soil when such constituents are initially found at concentrations greater than
ten times the universal treatment standard. Characteristic soil must also be treated, in the case of

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TC soil, for the TC constituent and. in the case of ignitable. corrosive, or reactive soil, for the
characteristic property.

As discussed further in the preamble to today's action. EPA is confident that sampling and
analysis can be appropriately targeted to ensure that it is focused on appropriate hazardous
constituents or classes of hazardous constituents and does not intend that sampling and analysis
would routinely be required for the entire suite of universal treatment standard constituents. Other
commenters support this approach.

Regarding EPA's longstanding policy about the origin of wastes or contaminants, EPA has
retained the presumption that, when information is not available one may presume contamination
did not originate from listed hazardous waste. EPA has also retained the latest application of this
policy — when information is not available one may presume contamination did not originate from
untreated restricted waste placed after the effective date of the applicable land disposal restrictions.

• "Section 269.30(a) - © -- Minimum LDR Treatment Requirements For Media

If EPA nevertheless imposes the LDRs on contaminated media. USWAG supports the
Agency's proposal that, where information on the placement of the hazardous waste is
unavailable or inconclusive. EPA would allow generators to presume that the
contaminated media does not contain hazardous waste that was spilled after the effective
date of the LDRs. 61 Fed. Reg. at 18805. As the Agency notes, a facility is likely to be
aware of any significant spills that occurred after the effective date of the LDRs. and
therefore, any contamination for which such documentation is not readily available is
likely to have been spilled prior to the effective date of the LDRs.

Moreover, the Agency's proposed approach to determining whether the LDRs apply is
consistent with the approach taken by the Agency in determining whether hazardous waste
requirements apply to wastes generated at CERCLA sites. See Policy for Superfund
Compliance with the RCRA Land Disposal Restrictions, U.S. EPA, OSWER Dir. No.
9347.1-02, Apr. 17. 1989. Under the CERCLA guidelines, if the owner or operator
cannot determine after a good faith effort that the contamination is not derived from
hazardous waste, they are not required to manage the media as hazardous waste. USWAG
supports the Agency's proposal to adopt a similar approach for contaminated media." (59)

Response: EPA acknowledges and appreciates the support. The Agency's longstanding policy
that, when information is not available, one may presume contamination did not originate from
listed hazardous waste and the latest application of this policy -- when information is not available
one may presume contamination did not originate from untreated restricted waste placed after the
effective date of the applicable land disposal restrictions - has been retained in the final rule.

• "Shell agrees that the focus of remediations should be on constituents of concern and not
on the artificial distinction of a "listed" or "characteristic" waste. A flexible remediation
system cannot be developed if the source and classification of the waste in the media is the
focus.

Note: Many of the inherent management problems created by RCRA are related to the
question of the source of the media contamination. The so called "mixture rule" has

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created numerous situations of over-regulation and over-reaction because of the creation
of a large amount of regulated material which in fact represented no increase in risk to
human health or the environment." (115)

Response: This comment does not seem to address a land disposal restriction treatment standard
issue. However. EPA's approach to constituents subject to treatment seems consistent with this
thinking. In the final regulation. EPA is requiring treatment for each underlying hazardous
constituent reasonably expected to be present in contaminated soil when such constituents are
initially found at concentrations greater than ten time the UTS whether soil is contaminated by
listed waste or exhibits a characteristic of hazardous waste.

• "EPA requests comment on the scope of constituents subject to treatment for hazardous
contaminated media, i.e.. media with constituent levels above the BL. TDS generally
supports EPA's approach with regard to soils, that of requiring treatment for each UTS
constituent present at concentrations greater than 10 times UTS. TDS also supports EPA's
approach with regard to media exhibiting a characteristic, that of requiring treatment for
the characteristic, and for all underlying constituents exceeding 10 times UTS." (25)

As the Agency explained in the 1990 proposal, contaminated soils are potentially contaminated
with a wider range of hazardous constituents than process wastes - in no small part because they
generally reflect uncontrolled disposal settings. 58 FR at 48124 (September 14, 1993). Since this
is the type of circumstance addressed in the Chemical Waste opinion (i.e., because they are
generated by many different processes and under different circumstances, characteristic wastes can
also contain a wide range of hazardous constituents), the Agency is persuaded that it is prudent to
apply the logic of the Chemical Waste opinion and require treatment of all underlying hazardous
constituents. See Chemical Waste Management v. US EPA. 976 F.2d at 16 - 18 (D.C. Cir 1992).
Therefore, today's final rule requires that all contaminated soil subject to the LDRs be treated to
achieve the soil treatment standards for each underlying hazardous constituent reasonably expected
to be present in the soil when such constituents are initially found at concentrations greater than
ten times the universal treatment standard. Characteristic soil must also be treated, in the case of
TC soil, for the TC constituent and. in the case of ignitable. corrosive, or reactive soil, for the
characteristic property.

• "Merck supports the Agency's position on hazardous waste determination and land
disposal restriction application in the following citation: "[I]f information is not available
or inconclusive, facility owner/operators may generally assume that the material
contaminating the media were not hazardous wastes. Similarly, if environmental media

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were determined to be contaminated by hazardous waste, but if information on the dates of
placement is unavailable or inconclusive, facility owner/operator may. in most cases
assume the waste were placed before the effective date." 61 FR 18805." (109)

Response: EPA acknowledges and appreciates the support. The Agency's longstanding policy
that, when information is not available, one may presume contamination did not originate from
listed hazardous waste and the latest application of this policy — when information is not available
one may presume contamination did not originate from untreated restricted waste placed after the
effective date of the applicable land disposal restrictions -- has been retained in the final rule.

• "CMA strongly supports EPA's proposal to presume, in the absence of conclusive
information to the contrary, that environmental media have not been contaminated with
hazardous wastes, and that any contamination by hazardous wastes occurred before the
effective date of any potentially applicable LDR prohibition. 61 Fed. Reg. 18805/2. CMA
also supports EPA's belief that good housekeeping requirements and existing reporting
requirements under various statutes will routinely supply conclusive information, if
contamination resulted from disposal after the effective date of an applicable LDR
prohibition. Id. at 18805/3. Nonetheless, EPA solicits comments regarding whether there
are any other assumptions, records, or standards of evaluation to ensure complete and
proper identification of media contaminated with hazardous wastes disposed after an
applicable LDR prohibition date." (112)

Response: EPA acknowledges and appreciates the support. The Agency's longstanding policy
that, when information is not available, one may presume contamination did not originate from
listed hazardous waste and the latest application of this policy - when information is not available
one may presume contamination did not originate from untreated restricted waste placed after the
effective date of the applicable land disposal restrictions ~ has been retained in the final rule.

Conversely, another commenter notes that the BOAT list used in setting treatment standards would
be a more accurate and comprehensive characterization of waste than the Appendix VII list.

• "The ETC does not support applying treatment standards only to constituents above the
Bright Line. In particular, given EPA's proposed definition of "Bright Line constituents."
many hazardous constituents not on Appendix VII but present as hazardous constituents in
the waste and BOAT constituents under Part 268, would escape treatment. As discussed
elsewhere in these comments, the BOAT list used in setting treatment standards is a more
accurate and comprehensive characterization of the waste than the Appendix VII list.
Because of the issues and problems discussed on page 18809/3. EPA must make the
definition of "Bright Line constituent" at least as comprehensive as the BOAT constituent
list under the LDRs." (88)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher-and lower-risk contaminated
media, including contaminated soil. The soil treatment standards promulgated today will apply to
all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present in any given volume of contaminated soil
when such constituents are found at initial concentrations greater than ten times the UTS. If. in the
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future, the Agency takes action to establish a bright line, it will address comments regarding the
relationship between bright line constituents and underlying hazardous constituents, as necessary.

Commenters requested that the rule clarity' that if the generator is not able to determine the date at
which placement occurred, the date is assumed to precede the effective date of the applicable LDR
requirements.

• "The proposed language does not codify EPA's policy with respect to media where the
generator is unable to determine the time of placement of the waste contaminating the
media. The language should indicate that if the generator is unable to determine the date
at which placement occurred, the date is assumed to precede the effective date of the
applicable LDR requirements." (35)

Response: EPA does not. at this time, believe it is necessary to promulgate explicit regulations on
the Agency's longstanding policy regarding the use of information to determine the origin or dates
of contamination. EPA's policy on use of information to determine whether contamination was
caused by hazardous waste is not in regulation and this has not. to EPA's knowledge, unduly
hampered implementation of this policy.

• "CMA does not believe it is possible to specify a generic protocol to assure all relevant
information which may exist is collected and evaluated. Nor does CMA believe it
appropriate for remediation managers or others to be required to undertake painstaking
collection and analysis of historical documentation and/or interview individuals familiar
with historic operations. This is particularly true if such materials are not within the
possession of the site owner, and the individuals are not current employees of the site
owner. Thus, even though CMA supports EPA's efforts to develop standards to assure
better identification, CMA believes EPA should create a "safe harbor" provision for such
identification decisions. In particular. CMA believes EPA should adopt a standard
requiring a reasonable investigation of readily accessible information, where
reasonableness is determined by the subjective, good faith belief of the person conducting
the inquiry." (112)

1.A.4 Comments on Treatment to Background versus UTS

Several commenters presented their thoughts on treatment to background versus UTS levels for
naturally occurring contaminants.

• "EPA solicited comment regarding whether to evaluate concentrations of constituents in
contaminated media to background levels of naturally occurring contaminants when
identifying constituents subject to treatment. 61 Fed. Reg. 18809/3. CMA emphatically
agrees with this approach, if it is understood the purpose of such evaluation is to avoid
requiring treatment below naturally occurring background levels. Scarce remediation

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        resources certainly should not be wasted reducing risks from contaminated media below
        the already low naturally occurring risk levels. Similarly. EPA should not require
        evaluation to determine if constituents exist in excess of background levels which are not
        otherwise subject to treatment pursuant to the protocols described above." (112)

Response: In consideration of this and other comments. EPA has concluded that treatment to
comply with the soil treatment standards should not be required if constituent concentrations fall
below naturally occurring background concentrations, provided the soil will continue to be
managed on site or in an area with similar natural background concentrations. If soil will be sent
for land disposal off-site, compliance with the new soil treatment standards is required, since the
Agency believes that natural background concentrations on-site will not automatically correspond
to natural background concentrations at a remote land disposal facility.

The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA has
determined that soil (like other environmental media) is not. of itself, a waste EPA is not
convinced the Agency would have the authority to require compliance with LDR treatment
standards when constituent concentrations fall below background concentrations even if it felt
compelled to do so.  (Of course, such constituents could be regulated as hazardous constituents
under cleanup authorities, including RCRA corrective action and other authorities.)

Since background concentrations may vary across geographic areas, and to ensure that the LDR
soil treatment standards will only be capped at background where appropriate, EPA will require
that individuals who wish to cap LDR treatment at natural background concentrations apply for
and receive an LDR treatment variance. EPA will presume that when the soil treatment standards
would require treatment to concentrations that are less than natural background, such a variance
will be appropriate, based on the finding that it is inappropriate, for contaminated soil, to require
treatment to concentrations less than natural background concentrations.

•       "For contaminated media above the bright line levels, the media should be treated for the
        listed waste constituents contained therein as well as any characteristic wastes or
        underlying constituents. The underlying constituents, however, should only be subject to
        treatment to background levels when the constituent is naturally occurring in the media."
        (72)

Response: In consideration of this and other comments. EPA has concluded that treatment to
comply with the new soil treatment standards will not be required  if constituent concentrations fall
below naturally occurring background concentrations, provided the soil will continue to be
managed on site or in an area with similar natural background concentrations. If soil will be sent
for land disposal off-site, compliance with the new soil treatment standards is required, since the
Agency believes that natural background concentrations on-site will not automatically correspond
to natural background concentrations at a remote land disposal facility.

The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA has
determined that soil (like other environmental media) is not, of itself, a waste EPA is not

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convinced the Agency would have the authority' to require compliance with LDR treatment
standards when constituent concentrations fall below background concentrations even if it felt
compelled to do so. (Of course, such constituents could be regulated as hazardous constituents
under cleanup authorities, including RCRA corrective action and other authorities.)

Since background concentrations may vary across geographic areas and to ensure that the LDR
soil treatment standards will only be capped at background where appropriate. EPA  will require
that individuals who wish to cap LDR treatment at natural background concentrations apply for
and receive an LDR treatment variance. EPA will presume that when the soil treatment standards
would require treatment to concentrations that are less than natural background, such a variance
will be appropriate, based on the finding that it is inappropriate, for contaminated soil, to require
treatment to concentrations less than  natural background concentrations.

•       ".... the ETC does not agree with evaluating "naturally occurring" hazardous constituents.
        and discounting these in LDR treatment of media. Instead, any constituent present above
        UTS levels must be subject to treatment. In most sites, it is difficult to define what is
        naturally occurring background. A uniform program  based on UTS is objective, uniform.
        protective, and easily implemented."  (88)

Response:   EPA appreciates the comment: however, we are persuaded by other comments and
believe that when contaminated soils will be managed on-site treatment should be capped at
natural background concentrations.

The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA  has
determined that soil (like other environmental media) is not, of itself, a waste EPA is not
convinced the Agency would have the authority to require compliance with LDR treatment
standards when constituent concentrations fall below background concentrations even if it felt
compelled to do so. (Of course, such constituents could be regulated as hazardous constituents
under cleanup authorities, including RCRA corrective action and other authorities.)

•       "Westinghouse supports EPA's proposal that LDR treatment standards be met for those
        regulated constituents associated with the listed waste contaminating media  as identified in
        Q268.40. However, treatment should  not be required below background concentration
        levels of any naturally occurring hazardous constituent concentrations. In the event any
        naturally occurring constituents were subject to LDR treatment standards, the treatment
        levels for those constituents should be capped at the background concentration levels for
        the site." (35)

Response: In consideration of this and other comments, EPA has concluded that treatment to
comply with the new soil treatment standards will not be required if constituent concentrations fall
below naturally occurring background concentrations provided the soil will continue to be
managed on site or in an  area with similar natural background concentrations. If soil will be sent
for land disposal off-site, compliance with the new soil treatment standards is required, since the
Agency believes that natural background concentrations on-site will not automatically correspond
to  natural background concentrations at a remote land disposal facility.

-------
The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA has
determined that soil (like other environmental media) is not. of itself, a waste EPA is not
convinced the Agency would have the authority to require compliance with LDR treatment
standards when constituent concentrations fall below background concentrations even if it felt
compelled to do so. (Of course, such constituents could be regulated as hazardous constituents
under cleanup authorities, including RCRA corrective action and other authorities.)

Since background concentrations may vary across geographic areas and to ensure that the LDR
soil treatment standards will only be capped at background where appropriate. EPA will require
that individuals who wish to cap LDR treatment at natural background concentrations apply for
and receive an LDR treatment variance. EPA will presume that when the soil treatment standards
would require treatment to concentrations that are less than natural background, such a variance
will be appropriate, based on the finding that it is inappropriate, for contaminated soil, to require
treatment to concentrations less than natural background concentrations.

l.B. GENERAL COMMENTS IN OPPOSITION TO THE PROPOSED APPROACH

I.B.I Application of LDRs to Nonbazardous Contaminated Media is Not Justified

Several commenters indicate that media that has been determined not to contain hazardous waste
(i.e., nonhazardous media contaminated in concentrations below the bright line) should not be
subject to LDRs. [Also See Chapter 5 comments on the definition of nonhazardous contaminated
media.] At least one commenter requests clarification of a contradiction in applicable
requirements: in one section, media are excluded from Subpart C requirements if the media have
been determined not to contain hazardous waste, however in another section, the proposal states
that media with nonhazardous wastes are still subject to Subpart C.

• "In its discussion of the LDRs, EPA appears to take a convoluted approach to avoid the
Chem Waste decision even though it does not apply. As the Agency recognizes, "the land
disposal restrictions apply only to hazardous wastes". 61 Fed. Reg. 18804: see also Chem.
Waste. 976 F. 2d at 13-14. If soil or groundwater is determined to not contain hazardous
waste, then the media is never hazardous and not subject to the LDRs. Indeed, page 18806
of the preamble states, "if contaminated environmental media are determined not to
contain solid or hazardous waste (i.e., it's just media) it would not be subject to any RCRA
Subtitle C standard, including LDRs." If EPA adopts the "contained-in" approach, then
EPA should clarify that media that has been determined to not contain hazardous waste
are not subject to the LDRs. Any other conclusion is contrary to the plain language of
RCRA. EPA's own interpretations of the statute, and judicial interpretations of RCRA."
(39)

Response: As discussed further in the preamble to today's rule, determinations that contaminated
soil no longer contain hazardous waste (or no longer exhibit a characteristic of hazardous waste)
may result in the soil not being subject to LDRs in two circumstances.

First, in the case of soil contaminated by hazardous wastes placed prior to the effective date of any
applicable land disposal prohibition, a determination that the soil does not contain hazardous waste

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(or exhibit a characteristic of hazardous waste) cuts off all RCRA subtitle C requirements that
apply to hazardous waste (including LDRs) provided the determination is made at the same time
the soil is first managed (i.e.. generated). This is because contaminated soil, of itself, is not a
hazardous waste -- it may only be regulated as hazardous waste if it is determined to contain
hazardous waste (or exhibit a characteristic of hazardous waste). In the case of soil contaminated
by hazardous waste placed prior to the effective date of any applicable LDR prohibition, since the
contaminating hazardous waste was not subject to LDR. the only point at which it is possible to
determine that a hazardous waste is prohibited is at the point of generation of the soil. Thus, if the
soil is not considered to contain a hazardous waste at that point, there is no hazardous waste to
which the prohibition can attach.

Second, in the case of soil that either is subject to RCRA subtitle C hazardous waste management
requirements because it was determined to contain hazardous waste (or exhibit a characteristic of
hazardous waste) when first managed (i.e.. generated) or that is subject to LDRs because it was
contaminated by untreated listed prohibited hazardous waste placed after the" effective date of an
applicable LDR (i.e.. illegally placed), a contained-in determination may cap technology-based
LDR treatment standards provided it is combined with a site-specific, risk-based minimize threat
determination. EPA believes it will often be possible to combine contained-in determinations with
site-specific, risk-based minimize threat determinations because the Agency's guidance on how
contained-in determinations should be made is consistent with the requirements for site-specific.
risk-based minimize threat determinations. These issues are discussed in detail in the preamble to
today's rule.

EPA appreciates the commenters' concerns regarding application of the Chem Waste decision to
contaminated soil. However, as discussed in detail in the proposal, EPA betieves that although the
Chem Waste court did not speak to contaminated media specifically, the Agency must apply the
Chem Waste logic -- that a duty to comply with LDRs attaches to hazardous'waste when it is first
generated and elimination of the instance of "hazardousness" does not, necessarily, fulfil the
statutory land disposal restriction treatment standard ~ to contaminated soil. See Chemical Waste
Management v. EPA, 976 F.2d 2 and 22 (D.C. Cir 1992), cert, denied, 1 I3-S.Ct. 1961 (1993).
This means, once LDRs attach to any given hazardous waste (or to contaminated soil that contains
hazardous waste or exhibits a characteristic of hazardous waste), the LDR treatment standards, or
an alternative treatment standard approved through a variance process, must be met before the
waste (or soil) can be land disposed.

As discussed in detail in the preamble to today's final rule, the Agency is not able, at this time, to
find that all contained-in determinations will automatically equate to minimize threat
determinations, and thus satisfy LDRs. This is. primarily, because, as discussed in the preamble to
today's final rule, the Agency has chosen, at this time, not to codify substantive requirements or
procedures for contained-in determinations, but. instead, to allow the policy to continue to be
.implemented on a site-by-site basis by EPA regions and authorized states using Agency guidance.
In situations where, on a site-by-site basis, a contained-in determination is found to minimize
threats, EPA has provided a specific mechanism to allow these determinations to cap LDR
treatment. The so called, site-specific, risk-based minimize threat variance is discussed in detail in
the preamble to today's final rule.

• "If a bright line is needed at all (see discussion below in Section 2.5), AOGA supports
coordinating the bright line and LDR determinations so that constituents with

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concentrations below the bright line would not be subject to LDR treatment requirements.
while constituents with concentrations above the bright line would be subject to LDR
treatment when applicable. If the implementing agency chooses to set contained-in levels
below the bright line due to site-specific conditions, the contained-in numbers could
become the "new" bright line numbers for that site, and LDR treatment would be required
for constituents with concentrations above the new bright line. Further. AOGA supports
use of an automatic exemption from the LDR requirements if all constituents are below
the-bright line and the media have been determined to no longer contain hazardous
wastes." (33)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present in contaminated soil when such constituents
are found at initial concentrations greater than ten times the universal treatment standard. If. in the
future. EPA takes action to establish a bright line. EPA will address concerns regarding the
relationship of the bright line to the new soil treatment standards and contained-in determinations.
as necessary, at that time.

• At §269.30(b), media are excluded from the requirements of Subpart C-Treatmem
Requirements if the media have been determined not to contain hazardous wastes prior to
removal from the lahd (pursuant to §269.4). However, at §269.30(a)(2). media that have
been determined to no longer contain hazardous wastes (pursuant to §269.4) are explicitly
included as materiaFs-subject to Subpart C. El Paso requests clarification of this
contradiction in applicable requirements." (6)
c
Response: The "contradiction" reference by the commenter was likely based on confusion
regarding the regulatory language. Under EPA's approach in the final regulations, it remains that.
generally, contaminated soilwhich is determined not to contain hazardous wastes when it is first
removed from the land is not subject to the LDR treatment standards: contaminated soil that is
determined not to contain hazardous waste after it is removed from the land (i.e.. does contain
hazardous waste when first removed from the land) must comply with applicable LDR treatment
standards prior to land disposal. The exception is soil that was contaminated by listed prohibited
hazardous waste that was placed (or spilled) after the effective date of applicable LDR
prohibitions. In this case, the-prohibition from the listed hazardous waste continues to apply any
contaminated soil.

EPA appreciates the commenters' concerns regarding application of the Chem Waste decision to
contaminated soil. However, as discussed in detail in the proposal. EPA believes that although the
Chem Waste court did not speak to contaminated media specifically, the Agency must apply the
Chem Waste logic - that a duty to comply with LDRs attaches to hazardous waste when it is first
generated and elimination of the instance of "hazardousness" does not, necessarily, fulfil the
statutory land disposal restriction treatment standard -- to contaminated soil. See Chemical Waste
Management v. EPA, 976 F.2d 2 and 22 (D.C. Cir 1992), cert, denied. 113 S.Ct. 1961 (1993).
This means, once LDRs attach to any given hazardous waste (or to contaminated soil that contains
hazardous waste or exhibits'a characteristic of hazardous waste), the LDR treatment standards, or
an alternative treatment standard approved through a variance process, must be met before the

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waste (or soil) can be land disposed. As discussed in detail in the preamble to today's final rule.
the Agency is not able, at this time, to find that all contained-in determinations will automatically
equate to minimize threat determinations, and thus satisfy LDRs. This is. primarily, because, as
discussed in the preamble to today's final rule, the Agency has chosen, at this time, not to codify
substantive requirements or procedures for contained-in determinations, but. instead, to allow the
policy to continue to be implemented on a site-by-site basis by EPA regions and authorized states
using Agency guidance. In situations where, on a site-by-site basis, a contained-in determination is
found to minimize threats. EPA has provided a specific mechanism to allow these determinations
to cap LDR treatment. The so called, site-specific, risk-based minimize threat variance and LDR
applicability and it's relationship to the contained-in policy are discussed in detail in the preamble
to today's final rule.

• "EPA should not require treatment of constituents present in concentrations below
Bright Line benchmark levels

EPA solicited comment regarding whether to modify its proposed requirements, which
would require treatment of all constituents subject to treatment without regard to whether
such constituents are present in concentrations above or below Bright Line benchmark
values. 61 Fed. Reg. 18809/3. Again. CMA does not support application of LDRs to any
remediation waste, and does not support the Bright Line concept. If EPA intends to adopt
the Bright Line and to apply the modified LDRs to all constituents subject to treatment,
CMA urges EPA not to require treatment of constituents present in concentrations below
the Bright Line benchmarks. EPA's proposal would not require treatment of other
contaminated media containing the same concentrations of hazardous constituents if no
other constituents were present in concentrations exceeding the benchmarks. Applying
such treatment will create a dual approach to the Bright Line levels for such constituents,
and will require treatment for treatment's sake. If treatment of such constituents is needed
to protect human health and the environment, it can be imposed by Directors of
remediation programs on a site-specific basis, without imposing an inflexible and
inappropriate requirement." (112)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present in contaminated soil when such constituents
are found at initial concentrations greater than ten times the UTS. If, in the future, EPA takes
action to establish a bright line, EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards and constituents subject to treatment, as necessary, at that time.

• "The modified LDR treatment requirements remain an impediment because, despite
modifications, they will still apply to contaminated media. Under the proposed rule, the
LDRs attach, following the effective date of applicable LDR prohibitions, on the date the
wastes are placed in the ground. LDRs should not apply at any point to media that are not
considered hazardous waste before, during, or after treatment. Moreover, having LDRs
apply to wastes in a remediation setting only serves as a disincentive to cleanup. It should
be noted that in instances where EPA determines that contaminated media falls below the

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Bright Line, the Agency has proposed that it can and will presumably apply a media
treatment variance to the material. Id. at 18806. 18809. If such is the case. API urges EPA
to include its presumption for LDR variances in the regulatory language of the ruie rather
than simply stating it in the preamble in order to assure those conducting cleanups that
EPA will provide such a variance if. for example, the entity conducts the cleanup in good
faith. What the proposal means is that waste not subject to LDRs when placed in the
ground is exempt from the LDRs retrospectively, as should be the case. However, what if
the waste is moved at some point in the future? Will the same regulations apply 50 or 100
years from now? Will that waste still be exempt from the LDRs. or will it then become
subject to the LDRs as environmental media that is subject to the LDRs because it is
removed from the land and placed into a land disposal unit? For these reasons. LDRs
should not attach to contaminated media that is either considered non-hazardous or is
below the Bright Line." (39)

Response: Many commenters expressed the concern that application of LDRs to remediation
waste, including contaminated soil, was overly complex and would present impediments to
remediation. The majority of these commenters suggested that EPA simply exempt the majority of
remediation wastes, including contaminated soil, from a duty to comply with LDRs.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, as discussed in the preamble to today's rulemaking, the
Agency is not. at this time, taking action on the portions of the HWIR-Media proposal which
would have provided opportunities for some or all hazardous remediation waste to exit large
portions of the RCRA Subtitle C system. The Agency continues to believe that legislative action
is needed to address the application of RCRA Subtitle C regulations, especially LDRs. to
hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is no
legislation. EPA may choose to take additional regulatory action, which may include a re-
examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime. EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

Regarding the complexity associated with determining when one has a duty to comply with LDRs
for contaminated soil, the Agency has re-formatted the regulations on LDR applicability into an
easier to read table. This table is discussed in detail in the preamble to today's final rule. The
Agency cannot guarantee that the current regulations (or underlying statute) will not change in the
next fifty to one hundred years, it can only offer assurances as to the correct reading of current
requirements.

• "The FACA also agreed that there should be no generic requirements for media below any
Bright Line. EPA's proposed approach would potentially subject significant amounts of
media below the Bright Line, even those that are determined to not longer contain
hazardous waste, to overly stringent generic LDR treatment requirements which remedial
technologies will be unable to achieve." (117)
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Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If. in the future. EPA takes
action to establish a bright line, it will address concerns regarding the relationship of the bright
line to the soil treatment standards, as necessary, at that time.

Concerns that the soil treatment standards are overly stringent and unable to be achieved by
remedial technologies are addressed in section B.6 of today's response to comments document and
in the preamble to today's final rule.

• "We again note that EPA's proposed Bright Line approach fails to meet one of the central
agreements arrived at by FACA members; that media with concentrations below the
Bright Line (be they characteristic or containing hazardous waste) should not be subject to
subtitle C. EPA's approach would not only use a "fuzzy line", where otherwise hazardous
media would all remain hazardous below the Bright Line absent an affirmative
determination via contained-in. for some unknown volume of media LDR treatment
standards would continue to apply even after tie media was determined to no longer
contain hazardous waste. We urge the Agency in the strongest possible terms to address
this egregious flaw in the Bright Line approach. The Agency should adopt the Unitary
approach. If it chooses not to the Bright Line must be truly bright, with an automatic
presumption that media no longer contains hazardous waste below the Bright Line, and a
presumption of minimized that for formerly hazardous media below the Bright Line. The
treatability group concept may be a viable way of achieving this end." (117)

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there is no legislation. EPA may choose to take additional regulatory action, which may include a
re-examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime. EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

• "In the preamble to the proposed rule. EPA asserts that it believes it is required by RCRA
to impose the land disposal restrictions ("LDRs") on below-the-Bright Line media that are
contaminated with hazardous wastes that were spilled into the media after the effective
date of the LDRs for that waste. 61 Fed. Reg. at 18804-05. The Agency has expressed a
similar belief about wastes that would be excluded from Subtitle C under the Unitary
Approach. Id. at 18835. In both cases, the Agency has misread the statute.

According to the preamble, the Agency believes it must apply the LDRs to these wastes
because at some point in the past LDRs "attached" to the wastes in the media. Id.
However, the notion of LDR "attachment" is not found in the statute, but rather was
created by EPA in the "Third-Third" rule when the Agency was seeking a justification for
requiring some characteristic wastes to be treated below the characteristic level. See 55
Fed. Reg. 22520. 22652-53 (June 1. 1990). In that context. EPA took the position that.
because the wastes were hazardous as generated, the LDRs "attached" at the point of
generation and the Agency could require whatever treatment was necessary to minimize
threats to human health and the environment (as required by RCRA section 3004(m)),
even if doing so required treatment below the characteristic level. Id. Importantly, in that
same rulemaking the Agency stated that this principle did not necessarily mean that the
LDRs would automatically apply to wastes excluded from the statutory or regulatory
definitions of hazardous waste. Id. at 22660. Specifically, the Agency stated that, "[fjhese
provisions [i.e., statutory or regulatory exclusions from the definition of hazardous waste]
can override the LDR point of generation evaluation to keep wastes from being prohibited
and subject to a dilution prohibition or treatment standard." Id.

In Chemical Waste Management. Inc. v. EPA. 976 F.2d 2, 14 (D.C. Cir. 1992), cert.
denied, 113 S. Ct. 1961 (1993) ("CWM"), the D.C. Circuit upheld the Agency's
interpretation on the ground that it was "based on a permissible construction of the
statute," (quoting Chevron USA, Inc. v. NRDC. 467 U.S. 837, 843 (1984)). The court did
not hold that EPA's interpretation was required by the statute or that the Agency must
apply the same rationale in all circumstances. Instead it merely upheld the Agency's
interpretation as permissible under the deferential Chevron Step 2 standard. Similarly,
when the court invalidated certain of the Third-Third treatment standards, it did so on the
basis that the promulgated standards were inconsistent with EPA's interpretation of the
statute. 976 F.2d at 17 ("In view of EPA's position that treatment pursuant to section
3004(m) requires .... To conform to its own reading of section 3004(m) the Agency . . .)
(emphasis added). Because the CWM court merely upheld the Agency's interpretation of
RCRA under the deferential Chevron standard and applied the Agency's interpretation to
the treatment standards at issue, it is circular for the Agency now to maintain that this view
of the statute is mandated bv the decision in CWM.
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EPA's present position is flatly contradicted by the D.C. Circuit Court's subsequent
decision in Horsehead Resource Deveiopment Co.. Inc. v. Browner. 16 F.3d 1246 (D.C.
Cir.), cert, denied. 115 S. Ct. 72 (1994). In Horsehead. the court rejected an argument that
RCRA "requires the EPA unstintingly to regulate hazardous wastes under Subtitle C." and
upheld EPA's determination that combustion residues from the co-burning of hazardous
wastes and fossil fuels in certain combustion devices were included within the scope of the
Bevill Amendment exclusion from hazardous waste regulation and thus also were
excluded from the LDRs. Id. at 1261.

The circumstances addressed by the court in Horsehead are much closer to the remediation
waste situation being considered by EPA in this ruiemaking than was the management of
process wastes in surface impoundments addressed by the CWM Court. Under the
regulations upheld by the court in Horsehead. materials that are hazardous waste exit the
Subtitle C system, including the LDRs. if the wastes are combusted in a Bevill device and
the residuals meet the Agency's "significantly affected" test (40 C.F.R. § 266.12). The
court deferred to EPA's determination that these material are no longer "hazardous waste"
and therefore that the LDRs no longer apply. Thus, the court explicitly rejected the
argument that every waste that is hazardous when generated must meet LDR treatment
standards, regardless of its subsequent history. EPA has taken the same position with
regard to other exclusions, such as the domestic sewage exclusion (55 Fed. Reg. at 22660)
and EPA's LDR regulations explicitly contemplate that some wastes will exit the Subtitle
C system, including the LDRs. after the point of generation. 40 C.F.R. § 268.7(a)(6)
(record keeping requirements for wastes excluded from the LDRs after the point of
generation).

Moreover, as even the Agency acknowledges, adherence to the "attachment" principle
leads to absurd results. First, it creates an arbitrary distinction between media that are
contaminated with wastes spilled before and after specific dates, regardless of the level of
hazardous constituents present. Thus, media containing low levels of hazardous
constituents spilled after the effective date of an LDR prohibition may be subject to the
LDRs. while more heavily contaminated media from an earlier spill would not be. There
is no evidence Congress intended such an arbitrary and illogical result, and it clearly
serves no environmental purpose.

In addition, imposition of the LDRs on below-the-Bright Line media imposes additional
costs and burdens on cleanups, in direct conflict with the primary purpose of this
rulemaking, which is to eliminate existing disincentives to undertaking site remediation.
First, even if the media are ultimately not subject to the LDRs, the proposed regulation
would require the generator to make a good faith effort to document the date of the
contamination. 61 Fed. Reg. at 18805. Such a requirement causes delay and expense for
no environmental purpose.

Second, imposition of the LDRs can distort the remedy selection process, forcing the site
owners to choose less environmentally protective remediation options to avoid the burdens
imposed by the LDRs. Id. at 18812-13. There is no environmental justification for
putting site owners in this position. Rather, the Agency should exercise its authority to
determine that contaminated media that are not regulated as hazardous waste are not
subject to the LDRs.

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Accordingly. EPA has ample authority to determine that remediation waste, including
media contaminated with material that was a hazardous waste when spilled, is not a
hazardous waste when remediated, and that the LDRs simply do not apply to this material.
Specifically, the Agency has the authority to determine that the policy rationale behind the
Agency's conclusion in the Third-Third rule that the LDRs should "attach" at the point of
generation is simply inapplicable to remediation waste and that the policy rationale behind
this rulemaking, i.e.. that Subtitle C regulatory burdens on contaminated media should be
reduced or removed in order to encourage site remediations. justifies a different approach
to treatment of contaminated media. This conclusion applies whether EPA adopts either
the Bright Line or Unitary Approach to regulating remediation waste.

Recognizing the tension between the "attachment" principle and the purpose of this
rulemaking, the Agency has requested comment on whether it could utilize the "change in
treatability group" concept to justify exclusion of contaminated media from the LDRs on
the grounds that excavation of the media constitutes a new point of generation. 61 Fed.
Reg. at 18813. USWAG supports this proposal. EPA developed the "change in
treatability group" principle in the Third-Third rulemaking to determine whether
characteristic hazardous wastes are subject to the LDRs. 55 Fed. Reg. at 22661-62.
Under this principle, which was not challenged in the CWM litigation, a characteristic
waste is subject to the LDRs only if the waste itself, or a residual from management of the
waste, in the same treatability group (i.e.. wastewater or nonwastewater) is land disposed.
Id. A residual of a different treatability group is subject to the LDRs only if it itself
exhibits a characteristic. Id. In adopting this principle, the Agency recognized that a
change in treatability group is such a fundamental change in the form of the waste that it
constitutes a new point of generation.

EPA has proposed to extend this principle to contaminated media by recognizing
environmental media as a new point of generation and therefore subject to the LDRs only
if the contaminated media constitute hazardous waste as generated. As demonstrated
above, there is no question that EPA has the legal authority to take this position. Nothing
in RCRA specifies when a material becomes a hazardous waste or when it ceases to be a
hazardous waste, and the statute gives the Agency broad discretion to define what
materials are (and are not) hazardous waste. See RCRA §§ 3001(a)-(b). 42 U.S.C. §§
6903(5), 6921 (a)- (b). This authority was explicitly recognized by the D.C. Circuit in
Horsehead. Contaminated media are at least as different in form from the wastes with
which they are contaminated as wastewater and nonwastewater treatment residuals are
different from each other. Therefore, it is entirely reasonable for the Agency to determine
that contaminated media represent a new point of generation under the change in
treatability group principle. Because excavation of the media then constitutes a new point
of generation, it would be appropriate at that point to make a determination whether the
media were hazardous waste, based on the criteria adopted in this rulemaking.

Moreover, the Agency's authority over contaminated media arises not from the statutory
definition of "hazardous waste," but from the "contained-in principle," an Agency
interpretation of its own rules. See Chemical Waste Management, Inc. v. EPA, 869 F.2d
1526, 1539 (D.C. Cir. 1989). Because the statute does not speak to how LDRs apply to
contaminated media that are generated in a site remediation and the LDR attachment
theory is not expressly required by the Act, the Agency has broad discretion to reconcile

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its policies in these two areas in light of its experience in implementing the statute. See.
e.g.. Chevron U.S.A.. Inc. v. NRDC. 467 U.S. 837. 844-45 (1984). Thus, the Agency
may determine that contaminated media that are not regulated as hazardous waste are not
subject to the LDRs." (59)

Response: The Agency is not. at this time, taking action on the portions of the HWIR-Media
proposal which would have provided opportunities for some or all hazardous remediation waste to
exit large portions of the RCRA Subtitle C system. The Agency continues to believe that
legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine
application of LDRs to hazardous remediation waste, including hazardous contaminated soil. If
there is no legislation. EPA may choose to take additional regulatory action, which may include a
re-examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime, EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

EPA notes that, under today's action (as under the HWIR-Media proposal) contaminated soils are
considered a new treatability group, eligible for specific land disposal restriction treatment
standards (i.e.. the soil treatment standards promulgated today). However, EPA does not. at this
time, believe this change in treatability group automatically cuts off LDRs. Therefore, in the case
of soil that is determined to contain listed hazardous waste or exhibit a characteristic of hazardous
waste LDRs apply. Similarly, soil contaminated by listed prohibited hazardous waste is also
subject to LDRs. As discussed in detail in the preamble to today's final rule, this is because land
disposal prohibitions attach at that point a hazardous waste is generated and continue to apply until
the point at which threats poised by land disposal of the waste are minimized. Chemical Waste
Management v. EPA. 976 F.2d at 13, 14 and 24. Consequently, in the case of listed hazardous
waste land disposed after the effective date of an applicable land disposal prohibition (i.e.. illegally
land disposed or accidentally spilled), the prohibition has already attached to the waste and
continues to apply to any soil contaminated by the waste. As discussed in detail in the proposal.
although the Chem Waste court did not speak to contaminated media specifically. EPA believes
that it is prudent to apply this logic to contaminated soil.

As also discussed in detail in the preamble to today's final rule, the Agency is not able, at this
time, to find that all contained-in determinations will automatically equate to minimize threat
determinations, and thus satisfy LDRs. This is, primarily, because, as discussed in the preamble to
today's final rule, the Agency has chosen, at this time, not to codify substantive requirements or
procedures for contained-in determinations, but, instead, to allow the policy to continue to be
implemented on a site-by-site basis by EPA regions and authorized states using Agency guidance.
In situations where, on a site-by-site basis, a contained-in determination is found to minimize
threats, EPA has provided a specific mechanism to allow these determinations to cap LDR
treatment. The so called, site-specific, risk-based minimize threat variance and LDR applicability
and it's relationship to the contained-in policy are discussed in detail in the preamble to today's
final rule.

Regarding the assertion that the Agency's application of the logic of the Chemical Waste opinion
to contaminated soil is not compelled by statute, the Agency has never presented this approach as

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compelled. Rather, the Agency has concluded that, based on our reading of the Chemical ll'usie
opinion, it is prudent to apply the logic of the opinion to contaminated soil. This issue is discussed
in detail in the preamble to today's final rule. Furthermore, the Agency notes that the Chemical
Waste court, at times, seemed to indicate that such an approach is needed under RCRA Section
3004(m). See. Chemical Waste Management v. EPA 976 F.2d at 13 and 14. note 3 and note 10.
Regarding the assertion that EPA should, instead, inform its conclusions about application of
LDRs to contaminated soil using the Horsehead opinion, the Agency notes that, in Horsehead. the
court was addressing a situation where another statutory exclusion or exemption was at play. See
Horsehead Resource Development Co.. Inc. v. Browner, 16 f.3d at 1261. EPA is not aware of
such an exclusion or exemption for hazardous waste (or contaminated soil) generated during
remediation. On the contrary, statutory language seems to expressly contemplate application of
LDRs to these materials. See. RCRA Sections 3004(d)(3) and (e)(3).

• "Page 1.1. the last paragraph states that if the contaminated media is excluded from the
Subtitle C regulatory framework, what statutory authority exists for EPA to require any
specific technology, handling, standard, etc." (73)

As discussed in detail in the preamble to today's final rule, the Agency is not able, at this time, to
find that all contained-in determinations will automatically equate to minimize threat
determinations, and thus satisfy LDRs. This is, primarily, because, as discussed in the preamble to
today's final rule, the Agency has chosen, at this time, not to codify substantive requirements or
procedures for contained-in determinations, but, instead, to allow the policy to continue to be
implemented on a site-by-site basis by EPA regions and authorized states using Agency guidance.
In situations where, on a site-by-site basis, a contained-in determination is found to minimize
threats. EPA has provided a specific mechanism to allow these determinations to cap LDR
treatment. The so called, site-specific, risk-based minimize threat variance is discussed in detail in
the preamble to today's final rule.

The Agency continues to believe that legislative action to address issues associated with
application of RCRA requirements to remediation wastes, including contaminated soil, is needed
and will continue to participate in discussions of potential legislative solutions.

• "EPA's joint application of the "contained-in" theory and the LDR regulations creates
another legal concern. EPA's approach applies LDR standards at the point at which the
material first ''contains" a hazardous waste. Thus. EPA states that even if contaminated
media no longer contain a hazardous waste, the media might still have to meet more
stringent LDR standards. In a sense. EPA has proceeded in a fashion similar to how the
Agency approaches characteristic waste. The waste is brought into the LDR system at the
point of generation. Thus, even if the waste no longer exhibits a characteristic, it must still
be treated to reach BDAT levels. However, the situation EPA is faced with in the

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proposed approach is quite different. Once the material no longer "contains" a hazardous
waste, there is no justification for requiring further treatment of the remedial material. The
LDR regulations require the treatment of hazardous waste. Section 3004(m) states that
EPA must specify levels or methods of treatment which substantially reduce the likelihood
of migration of hazardous constituents from the waste..." Clearly, if the media no longer
"contains" a hazardous waste, there is no legal rationale for applying any additional LDR
controls." (107)

Response: As discussed in detail in the proposal. EPA believes that although the Chem Waste
court did not speak to contaminated media specifically, the Agency must apply the Chem Waste
logic - that a duty to comply with LDRs attaches to hazardous waste when it is first generated and
elimination of the instance of "hazardousness" does not. necessarily, fulfil the statutory obligation
under RCRA Section 3004(m)(l) to minimize threats to human health and the environment - to
contaminated soil. This means, once LDRs attach to any given hazardous waste (or to
contaminated soil that is initially determined to contain hazardous waste or exhibit a characteristic
of hazardous waste), the LDR treatment standards, or an alternative treatment standard approved
through a variance process, must be met before the waste (or soil) can be land disposed. See
Chemical Waste Management v. EPA. 976 F. 2d 2 at 22 (D.C. Cir 1992), cert, denied. 113 S.Ct.
1961 H993).

As discussed in detail in the preamble to today's final rule, the Agency is not able, at this time, to
find that all contained-in determinations will automatically equate to minimize threat
determinations, and thus satisfy LDRs. This is. primarily, because, as discussed in the preamble to
today's final rule, the Agency has chosen, at this time, not to codify substantive requirements or
procedures for contained-in determinations, but. instead, to allow the policy to continue to be
implemented on a site-by-site basis by EPA regions and authorized states using Agency guidance.
In situations where, on a site-by-site basis, a contained-in determination is found to minimize
threats. EPA has provided a specific mechanism to allow these determinations to cap LDR
treatment. The so called, site-specific, risk-based minimize threat variance is discussed in detail in
the preamble to today's final rule.

» "If the HWIR media rule is promulgated as proposed, with bright-line levels which are to
be used to determine whether the media is hazardous or poses a threat to the environment
or human health, the LDR standards should not apply to media that falls below the line.
This media can essentially be determined through the HWIR media process to be
non-hazardous. LDR applicability would constitute costly redundancy and essentially
"over treatment" of media." (72)

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action to establish a bright line. EPA will address concerns reaarding the relationship of the bright
line to the new soil treatment standards, as necessary, at that time.

• "Media Determined Not to "Contain" Hazardous Waste Should Not Be Subject to LDRs -
If the Agency adopts the Bright Line "contained in" approach. EPA should clarify that
media that has been determined not to contain hazardous waste ("contained out") are not
subject to LDRs." (49)

First, in the case of soil contaminated by hazardous wastes placed before the effective date of any
applicable land disposal prohibition, a determination that the soil does not contain hazardous waste
(or exhibit a characteristic of hazardous waste) cuts off all RCRA subtitle C requirements that
apply to hazardous waste (including LDRs) provided the determination is made at the same time
the soil is first managed (i.e.. generated). This is because contaminated soil, of itself, is not a
hazardous waste -- it may only be regulated as hazardous waste if it is determined to contain
hazardous waste (or exhibit a characteristic of hazardous waste). In the case of soil contaminated
by hazardous waste placed prior to the effective date of any applicable LDR prohibition, since the
contaminating hazardous waste was not subject to LDR. there is no LDR prohibition to carry
through to (i.e., attach to) the soil.

Second, in the case of soil that is subject to RCRA subtitle C hazardous waste management
requirements because it was determined to contain hazardous waste (or exhibit a characteristic of
hazardous waste) when first managed (i.e.. generated) or that is subject to LDRs because it was
contaminated by untreated listed prohibited hazardous waste placed after the effective date of an
applicable LDR (i.e., illegally placed), a contained-in determination may cap technology-based
LDR treatment standards provided it is combined with a site-specific, risk-based minimize threat
determination. EPA believes it will often be possible to combine contained-in determinations with
site-specific, risk-based minimize threat determinations because the Agency's guidance on how
contained-in determinations should be made is consistent with the requirements for site-specific.
risk-based minimize threat determinations. This issue is discussed in detail in the preamble to
today's final rule.

EPA appreciates the commenters' concerns regarding application of the Chem Waste decision to
contaminated soil. However, as discussed in detail in the proposal. EPA believes that although the
Chem Waste court did not speak to contaminated media specifically, the Agency must apply the
Chem Waste logic -- that a duty to comply with LDRs attaches to hazardous waste when it is first
generated and elimination of the instance of "hazardousness" does not. necessarily, fulfil the
statutory obligation under RCRA Section 3004(m)(l) to minimize threats to human health and the
environment - to contaminated soil. This means, once LDRs attach to any given hazardous waste
(or to contaminated soil that is determined to contain hazardous waste or exhibit a characteristic of
hazardous waste), the LDR treatment standards, or an alternative treatment standard approved
through a variance process, must be met before the waste (or soil) can be land disposed. See
Chemical Waste Management v. EPA. 976 F.2d 2 and 22 (D.C. Cir 1992), cert, denied, 113 S.Ct.
1961 (1993). As discussed in detail in the preamble to today's final rule, the Agency is not able.
at this time, to find that all contained-in determinations will automatically equate to minimize

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threat determinations, and thus satisfy LDRs. This is. primarily, because, as discussed in the
preamble to today's final rule, the Agency has chosen, at this time, not to codify substantive
requirements or procedures for contained-in determinations, but. instead, to allow the policy to
continue to be implemented on a site-by-site basis by EPA regions and authorized states using
Agency guidance. In situations where, on a site-by-site basis, a contained-in determination is
found to minimize threats. EPA has provided a specific mechanism to allow these determinations
to cap LDR treatment. The so called, site-specific, risk-based minimize threat variance is
discussed in detail in the preamble to today's final rule.

• "In spite of the fact that the Land Disposal Restriction (LDR) program was initially crafted
to address as-generated wastes, in the Harmonized Approach the Agency is proposing to
perpetuate the use of these requirements for remediation wastes as well. The proposed rule
implies that waste materials that are below published Bright Line values could still be
subject to subsequent LDR requirements. Kodak believes that the complex LDR
management standards and costs imposed on the regulated community for such materials
would not justify the minimal environmental benefits of such a program. Without a clear
exemption from LDR standards, implementation of the proposed rule is made much more
complicated which will result in the exemption not being embraced by the regulated
community. Kodak believes that the proposed rule should explicitly state that the HWIR
exemption from RCRA Subtitle C would also eliminate any obligation under the existing
RCRA LDR program. Again, this fits better with the Unitary Approach since under that
approach remediation wastes would be exempted as generated/excavated, never accruing
LDR applicability." (65)

Response: Many commenters expressed the concern that application of LDRs to remediation
waste, including contaminated soil, was overly complex and would present impediments to
remediation. The majority of these commenters, like this person, suggested that EPA simply
exempt the majority of remediation wastes, including contaminated soil, from a duty to comply
with LDRs.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, as discussed in the preamble to today's rulemaking, the
Agency is not. at this time, taking action on the portions of the HWIR-Media proposal which
would have provided opportunities for some or all hazardous remediation waste to exit large
portions of the RCRA Subtitle C system. The Agency continues to believe that legislative action
to address the application of RCRA Subtitle C regulations, especially LDRs, to hazardous
remediation waste is needed. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is no
legislation, EPA may choose to take additional regulatory action, which may include a re-
examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime. EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

Regarding the "bright line," EPA is not. at this time, taking action on the portion of the HWIR-
Media proposal that would have established a "bright line'' to distinguish between higher- and

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lower-risk contaminated media, including contaminated soil. The new soil treatment standards
promulgated today will apply to all hazardous contaminated soil and will require treatment for all
underlying hazardous constituents that are reasonably expected to be present when such
constituents are found at initial concentrations greater than ten times the universal treatment
standard. If. in the future. EPA takes action to establish a bright line. EPA will address concerns
regarding the relationship of the bright line to the new soil treatment standards, as necessary, at
that time.

• "The IEPA believes that the Land Disposal Restrictions (LDRS) should not apply to waste
that falls below the bright line provided that the approved RMP allows the waste to be
managed as non-hazardous (Subtitle C exempt)." (143)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil, or the portion of the HWIR-Media proposal that would have
codified the "contained-in" policy to allow for determinations that certain media do not or no
longer contain hazardous waste. The new soil treatment standards promulgated today will apply to
all hazardous contaminated soil arid will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future. EPA takes
action to establish a bright line or to codify the contained-in policy, EPA will address concerns
regarding the relationship of the bright line to the new soil treatment standards and the contained-
in policy at that time.

Implementation of the current contained-in policy is unaffected by today's rulemaking. As
discussed in detail in the preamble to today's final rule, the Agency is not able, at this time, to find
that all contained-in determinations will automatically equate to minimize threat determinations,
and thus satisfy LDRs. This is, primarily, because, as discussed in the preamble to today's final
rule, the Agency has chosen, at this time, not to codify substantive requirements or procedures for
contained-in determinations, but. instead, to allow the policy to continue to be implemented on a
site-by-site basis by EPA regions and authorized states using Agency guidance. In situations
where, on a site-by-site basis, a contained-in determination is found to minimize threats. EPA has
provided a specific mechanism to allow these determinations to cap LDR treatment. The so called.
site-specific, risk-based minimize threat variance is discussed in detail in the preamble to today's
final rule.

• "The Agency has solicited comments regarding how it should address environmental
media with all constituent concentrations below the Bright Line benchmarks. 61 Fed. Reg.
18813/1. We strongly recommend that remediation wastes - or environmental media - with
all constituents below the Bright Line benchmarks should be subject only to site-specific
requirements for remedial action plans. They should not be subjected to superimposed
RCRA Subtitle requirements. Further, there should be no connection between the time of
placement and the applicability of LDRs. EPA possesses adequate authority to assure that
the time of placement has no bearing on treatment requirements." (112)

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today will apply to all hazardous contaminated soil and will require treatment for all underlying
hazardous constituents that are reasonably expected to be present when such constituents are
found at initial concentrations greater than ten times the universal treatment standard. If. in the
future. EPA takes action to establish a bright line. EPA will address concerns regarding the
relationship of the bright line to the soil treatment standards, as necessary, at that time.

Regarding the connection between time of hazardous waste placement and land disposal restriction
treatment requirements, the Agency disagrees with the commenter's assertion that the two are not
related. As discussed in detail in the HWIR-Media proposal and in the preamble to today's final
rule, in situations where untreated prohibited listed hazardous waste is placed after the effective
date of the applicable land disposal prohibition (i.e., illegally placed), the duty to comply with
LDRs that was attached to the listed waste passes automatically to any soil contaminated by the
waste, regardless of whether the soil is determined not to contain hazardous waste or exhibit a
characteristic of hazardous waste. The Agency believes this reading is compelled by the Chem
Waste court which found that a duty to comply with LDRs attaches to hazardous waste when it is
first generated and elimination of the instance of "hazardousness" does not, necessarily, fulfil
RCRA Section 3004(m) requirement that threats to human health and the environment be
minimized. This means, once LDRs attach to any given hazardous waste (or to contaminated soil
that is determined to contain hazardous waste or exhibit a characteristic of hazardous waste), the
LDR treatment standards, or an alternative treatment standard approved through a variance
process, must be met before the waste (or soil) can be land disposed. See Chemical Waste
Management v. EPA, 976 F.2d 2 and 22 (D.C. Cir 1992), cert, denied, 113 S.Ct. 1961 (1993).

• "No Analysis / Treatment Requirement for Wastes Below the Bright Line - HWIR- Media
should not set specific cleanup standards for wastes below the Bright Line. Rather, states
should be given maximum opportunity to oversee such determinations on a site specific
basis." (49)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line'' to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future. EPA takes
action to establish a bright line, EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards, as necessary, at that time.

EPA notes that the soil treatment standards, like any LDR treatment standard, are not substitutes
for. and should not be construed as, cleanup standards.

A few commenters support allowing Media Treatment Variances for wastes below the Bright Line.
[Also see Chapter 12 comments on media treatment variances.]

• "Under the Bright Line proposal, once a waste is determined to contain concentrations of
one constituent above the line, all constituents would have to be treated to meet the
generic technology-based LDR standards -- even those that fall below the Bright Line
numbers. See 61 Fed. Reg. at 18,809. EPA has suggested that it could revise this proposal
to allow site-specific minimized threat Media Treatment Variances for constituents in such

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wastes that fall below the line. 61 Fed. Reg. at 18.810. This would exempt belovv-the-line
constituents and would require compliance with the generic treatment standards only for
constituents that have initial concentrations above the line. A.G.A agrees that this is a
good solution and urges EPA to revise the proposed rule accordingly." (83)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future. EPA takes
action to establish a bright line. EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards, as necessary, at that time.

Regarding media treatment variances, in order to reduce the likelihood that application of the
nationally applicable, technology-based treatment standards to contaminated soil will result in
treatment beyond the point at which treats to human health and the environment are minimized
EPA is promulgating the site-specific, risk-based minimize threat variance discussed in the
proposal. This new variance will allow approval of an alternative land disposal restriction
treatment standard based on a site-specific determination that threats to human health and the
environment are minimized concentrations of hazardous constituents greater (i.e. higher) than
those specified in the soil treatment standards. It will be available, as appropriate, for all
contaminated soil, regardless of the initial concentrations of hazardous constituents, and is
discussed in detail in the preamble to today's final rule.

• "The Agency is interested in comments that address environmental media with all
constituent concentrations below the Bright Line and if these media should be subject to
the generic LDR treatment standards.

Comment: The general purpose of the LDR universal treatment standards contained in 40
CFR part 268 is to treat hazardous wastes to eliminate as much of the uncertainty as
possible associated with the land disposal of such wastes. This is accomplished by
reducing the hazardous constituent concentration in the waste using a technology-based
waste treatment approach. This same protective element of reducing as much of the hazard
as possible prior to land disposal should also be applied to all hazardous contaminated
media with all constituent concentrations below the bright line values. This requirement is
not viewed as burdensome since the Director has the flexibility to grant a Media
Treatment Variance from the generic LDR treatment standard if the standard is
unattainable or inappropriate. An exception to this approach is contaminated media that
has been determined by the overseeing authority to be a non-hazardous contaminated
media. This media should not be subject to the generic LDR treatment standards since
there is evidence of de minimis risk." (L01)

Response: The commenter makes two points: (1) it is appropriate to apply LDRs to contaminated
soil with constituent concentrations below the so called "bright line:" and. (2) it is not appropriate
to apply LDRs to soil determined not to contain hazardous waste.
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Regarding the "bright line." EPA is not. at this time, taking action on the portion of the HWIR-
Media proposal that would have established a "bright line" to distinguish between higher- and
lower-risk contaminated media, including contaminated soil.  The new soil treatment standards
promulgated today will apply to all hazardous contaminated soil and will require treatment for all
underlying hazardous constituents that are reasonably expected to be present when such
constituents are found at initial concentrations greater than ten times the universal treatment
standard. If. in the future. EPA takes action to establish a bright line. EPA will address concerns
regarding the relationship of the bright line to the soil treatment standards, as necessary, at that
time.

Regarding the relationship of "contained-in" determinations to LDR treatment requirements, as
discussed further in the preamble to today's rule, determinations that contaminated soil no longer
contain hazardous waste (or no longer exhibit a characteristic of hazardous waste) may result in the
soil not being subject to LDRs  in two circumstances.

First,  in the case of soil contaminated by hazardous wastes placed prior to the effective date of any
applicable land disposal prohibition, a determination that the soil does not contain hazardous waste
(or exhibit a characteristic of hazardous waste) cuts off all RCRA  subtitle C requirements that
apply to hazardous waste (including LDRs) provided the determination is made at the same time
the soil is first managed (i.e., generated).  This is because contaminated soil, of itself, is not a
hazardous waste — it  may only  be regulated as hazardous waste if it is determined to contain
hazardous waste (or exhibit a characteristic of hazardous waste). In the case of soil contaminated
by hazardous  waste placed prior to the effective date of any applicable LDR prohibition, since the
contaminating hazardous waste was not subject to LDR, there is no LDR prohibition to carry
through to (i.e..  attach to) the soil.

Second, in the case of soil that  is subject to RCRA subtitle C hazardous waste management
requirements because it was determined to contain hazardous waste (or exhibit a characteristic of
hazardous waste) when initially managed (i.e., generated) or that is subject to LDRs because it was
contaminated by untreated listed prohibited hazardous waste placed after the effective date of an
applicable LDR (i.e., illegally placed), a contained-in determination may cap technology-based
LDR treatment standards provided it is combined with a site-specific, risk-based minimize threat
determination. EPA  believes it will often be  possible to combine contained-in determinations with
site-specific, risk-based minimize threat determinations because the Agency's guidance on how
contained-in determinations should be made  is consistent with the requirements for site-specific,
risk-based minimize threat determinations.  This issue is discussed in detail in the preamble to
today's proposal.

•      "The  Unitary approach avoids these arbitrary constructs, and would allow overseeing
       agencies to implement  the management standards, including treatment, that were
       appropriate for remediation wastes on a site-specific basis. However, if the Agency moves
       forward with the Bright Line approach we encourage an approach to constituents subject
       to treatment that is implementable and provides some meaningful reform. In this regard
       we would concur with  the proposed approach to soils containing listed wastes (treatment
       for those constituents which form the basis for listing and are present at  greater than ten
       times the UTS). While there is no compelling practical rationale for addressing
       characteristic soils differently, within the regulatory box EPA is attempting to construct
       we recognize that treatment would be conceptually be required for all UTS constituents.

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However. we fully support in this context the concept of Media Treatment Variances for
constituents present at less than Bright Line concentrations. In fact, given that
characteristic media will be present at many remediation sites and the resource intensive
nature of most variance processes we would encourage the Agency to make such a
variance a presumption. This would at least avoid some of the artificial encumbrance of
the Bright Line approach. The need to treat sediments should be decided on a case-by-case
basis, with treatment either to the new LDRs or via a variance. As discussed above.
treatment of groundwater should be defeated to the treatment requirements of the Clean
Water Act to avoid imposing duplicative and conflicting requirements, with the flexible
ability to exempt groundwater from subtitle C to permit reinjection as part of an in situ
remedy." (H 7)

Response: Regarding the bright line. EPA is not, at this time, taking action on the portion of the
HWIR-Media proposal that would have established a "bright line" to distinguish between higher-
and lower-risk contaminated media, including contaminated soil. The new soil treatment
standards promulgated today will apply to all hazardous contaminated soil and will require
treatment for all underlying hazardous constituents that are reasonably expected to be present
when such constituents are found at initial concentrations greater than ten times the universal
treatment standard. If. in the future. EPA takes action to establish a bright line, EPA will address
concerns regarding the relationship of the bright line to the soil treatment standards, as necessary,
at that time.

Regarding constituents subject to treatment, despite this support of the proposed approach, on
further consideration. EPA was persuaded by other comments that it is prudent to apply the logic
of the Chemical Waste court both to soil contaminated.by listed hazardous waste and to soils
which exhibit a characteristic of hazardous waste.

As the Agency explained in the 1990 proposal, contaminated soils are potentially contaminated
with a wider range of hazardous constituents than process wastes ~ in no small part because they
generally reflect uncontrolled disposal settings. 58 FR at 48124 (September 14, 1993). Since this
is the type of circumstance addressed in the Chemical Waste opinion (i.e. characteristic wastes
could also contain a wide variety of hazardous constituents, since characteristic wastes are
generated by a variety of sources and under a variety of circumstances), the Agency is persuaded
that it is prudent to apply the logic of the Chemical Waste opinion and require treatment of all
underlying hazardous constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16 -
18 (D.C. Cir 1992). Therefore, today's final rule requires that all contaminated soil subject to the
LDRs be treated to achieve the soil treatment standards for each underlying hazardous constituent
reasonably expected to be present in the soil when such constituents are initially found at
concentrations greater than ten times the universal treatment standard. Characteristic soil must
also be treated, in the case of TC soil, for the TC constituent and, in the case of ignitable,
corrosive, or reactive soil, for the characteristic property.

-------
Regarding media treatment variances, the Agency is going forward a site-specific, risk-based
media treatment variance, as discussed in the proposal. Like the soil treatment standards, the
variance will be available, as appropriate, for all contaminated soil. This new variance will allow
approval of an alternative land disposal restriction treatment standard based on a site-specific
determination that threats to human health and the environment are minimized concentrations of
hazardous constituents greater (i.e. higher) than those specified in the new soil treatment standards.
It is discussed in detail in the preamble to today's rulemaking. Since the Agency is not, at this
time, taking action to establish a "bright line." it is not establishing a presumption that site-
specific, risk-based media treatment variances are appropriate for contaminated soil with all
constituent concentrations below the bright line. If. in the future, EPA takes action to establish a
bright line, the Agency will address the relationship of the bright line to site-specific, risk-based
minimize threat variances, as necessary, at that time.

Regarding contaminated sediments and ground water. EPA is not, at this time, taking action on the
portions of the HWIR-Media proposal that would have addressed contaminated sediments or
ground water. If EPA takes such action in the future, it will address these comments as necessary
at that time.

1.B.2 Application of LDRs to Any Remediation Waste is Overly Complex and Not
Justified

As noted in Section 2.F, many commenters support the Unitary Approach, because it eliminates
the attachment of LDRs to all remediation waste, including contaminated media, and does not
require contained-in determinations. Some argue that the Unitary Approach better represents
FACA discussions on the LDRs. as well as EPA's objectives for the proposed rule. [Also see
Section 2.F comments in support of the Unitary Approach, as well as comments in Chapter 5 on
the definition of media and remediation waste.] Commenters also argue that Minimum
Technology Requirements (MTRs) and LDRs are applicable to process waste, not remediation
waste; EPA's decision to trust state regulators to establish site-specific, risk-based treatment
standards for below Bright Line media should apply equally to above Bright Line media (i.e., that
LDRs need not apply to any contaminated media); EPA's overall approach to establishing
treatment levels is overly complex and creates too many separate, unharmonized regulatory
regimes: and application of the LDRs discourages voluntary cleanups.

• "The second policy objective states that requirements for management of contaminated
media should be flexible and should reflect actual media cleanup site conditions and
characteristics of the contaminated media. Mandating LDR treatment requirements is
certainly not the way to accomplish this policy objective. Applying LDR treatment
requirements or more specifically using them as a baseline will, in many cases, result in
nothing so much as treatment for treatment's sake. The implementing agency, the
generator, and the local community are in the best position to understand the waste, the
site, and the possibilities and limitations of treatment. That fact needs to be both
understood and respected in these rules.

LDR treatment requirements are based on proven technology for process waste and should
not be applied to treatment of media because they are not proven for media. It is not
known if they are even achievable. Finally, since EPA has not proven whether the
technology is achievable or appropriate for media and because EPA has not identified any

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technologies or treatment standards for media. EPA should not be applying treatment
standards appropriate for process wastes to remediation wastes. By usina as-eenerated
waste standards as a baseline for this rule, that is exactly what the agency is doing." (109)

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation. EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today.
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. For this reason, EPA believes adoption of treatment standards for
contaminated soils represents a reasonable accommodation between the requirement to treat
materials subject to the LDRs before they are land disposed, and the special needs of encouraging
properly-conducted remediations.

Regarding the achieveability of the soil treatment standards, as discussed further in the preamble
and Background Document to today's action the Agency believes that the soil treatment standards
can be reliably achieved using a variety of demonstrated remediation technologies, such as,
depending on the exact nature of the soil and contaminants in question, biological treatment.
thermal desorption. and dechlorination. This is despite the fact that the lOxUTS component of the
soil treatment standards is based, as the commenter noted, on an extrapolation of the existing LDR
treatment standards. If the soil treatment standards are shown, because of site- and waste-specific
conditions, to be unachieveable (using an application of one of the model technologies on which
the standards are based) or inappropriate for any given contaminated soil, a land disposal
restriction treatment variance is available under current regulations at 40 CFR 268.44(h).

• "EPA claims that its proposed approach to LDR's and treatment requirements is
"'consistent with the recommendations of the FACA Committee". As a member of that
committee DuPont must protest this characterization as grossly inaccurate. In fact, the
committee agreed that LDRs should not apply to any contaminated media, and also agreed
that any mandatory treatment should be compatible with existing innovative remedial
technologies. The Agency's proposed approach is consistent with neither of these
agreements." (117)

Response: EPA regrets that some members of the FACA committee believe EPA
mischaracterized the results of the FACA process.

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• "For precisely the same reasons. EPA has simultaneously proposed here to remove the
application of LDRs from media containing constituents not exceeding Bright Line
benchmark levels, and for all media subject to the Unitary or Hybrid Approaches. Under
the Bright Line approach, a Director may determine a media contaminated with hazardous
waste disposed before the effective date of an applicable LDR prohibition does not contain
hazardous waste and need not comply with LDRs (when subsequently disposed subject to
requirements specified in an RMP). In contrast, soils containing hazardous waste formerly
containing hazardous waste disposed subsequent to an applicable prohibition date, must
meet revised generic or site-specific LDR standards, respectively. Sediment, ground
water, non-media hazardous remediation wastes, debris or mixtures of these materials and
soil where the soil does not predominate, are subject to application of existing LDR
treatment standards derived for application to wastes generated from industrial processes.
and not from remediation activities.

Given the policies EPA articulates in the current proposal. EPA presumably would choose
to remove the application of LDRs from all remediation wastes if it were to acknowledge
legal authority exists to do so. As discussed above, ample legal authority does exist, even
under a Bright Line approach. In fact. EPA specifically proposes to exclude such materials
from application of LDRs under the Unitary and Hybrid Approaches. EPA also proposes
to exclude all remediation wastes, not just media, from application of the LDRs under
whatever approach it adopts, when such media is managed in remediation piles. EPA
justifies this aspect of its proposal by arguing such management is temporary and is
excluded from the definition of land disposal in section 3004(k). CMA strongly
encourages EPA to acknowledge its broad legal authority, and to exempt all remediation
wastes from application of LDRs. under whichever of the instant proposals EPA
ultimately adopts, and not just when managed in remediation piles." (112)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal
that would have created a system to allow large volumes of hazardous remediation waste to exit
the RCRA Subtitle C system.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs, to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste,
including hazardous contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. For this reason. EPA believes adoption of treatment standards for
contaminated soils represents a reasonable accommodation between the requirement to treat
materials subject to the LDRs before they are land disposed, and the special needs of encouraging
properly-conducted remediations.

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• "Minimum Technology Requirements ("MTRs") and LDRs should not be applied to the
management of remediation wastes as MTRs and LDRs are designed for application to
process-generated hazardous waste. Treatment of remediation wastes, which vary in their
treatability due to physical and chemical heterogeneity, should be determined based upon
site-specific characteristics and should not have to conform to the limited treatment
techniques allowed by MTRs and LDRs. Further, temporary handling of remediation
wastes should be allowed in order to accommodate the implementation of the most
effective remedy and should not be limited by LDRs." (66)

Response: The commenter makes three assertions: (1) LDRs (and MTRs) should not apply to
remediation waste, including contaminated soil; (2) treatment of remediation wastes including
contaminated soils should not have to conform to the limited techniques allowed by LDRs (and
MTRs); and (3) temporary handling of remediation waste, including contaminated soil, should not
be limited by LDRs.

Regarding whether LDRs or MTRs should apply to contaminated soils, the Agency shares
concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive
remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs, to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste,
including hazardous contaminated soil. If there is no legislation. EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. For this reason. EPA believes adoption of treatment standards for
contaminated soils represents a reasonable accommodation between the requirement to treat
materials subject to the LDRs before they are land disposed, and the special needs of encouraging
properly-conducted remediations.

Regarding the concern that application of LDRs would limit the techniques allowed for treatment
of hazardous contaminated soil, as discussed further in the preamble to today's final rule, the
Agency believes that the soil treatment standards can be achieved using a variety of demonstrated.
non-combustion, remediation technologies such as. depending on the exact nature of the soil and
contaminants in question: biological treatment, thermal desorption. and dechlorination. If the soil
treatment standards are shown, because of site- and waste-specific conditions, to be unachieveable
(i.e. cannot be achieved using a properly operated treatment technology on which the treatment
standards are based) or inappropriate for any given contaminated soil, a land disposal restriction
treatment variance is available under current regulations at 40 CFR 268.44(h).

Regarding temporary handling of contaminated soils. EPA is not. at this time, going forward with
the elements of the HWIR-Media proposal that addressed temporary handling of contaminated
soils and other remediation wastes. Under current regulations, this temporary handling can be
approved using the provisions for corrective action management units and corrective action

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temporary units. Under current regulations, remediation wastes — including contaminated soils --
are not required to meet LDR treatment standards prior to being placed into a corrective action
management unit or temporary unit.

• "Section 269.30(d) - (h) -- Minimum LDR Treatment Requirements For Media

EPA has proposed to require compliance with the LDRs for ail media containing
constituents above-the-Bright Line that are managed in a land disposal unit and for media
with constituents below-the-Bright Line that at one time contained a hazardous waste that
was spilled after the effective date of the LDRs. As discussed above. USWAG believes
that EPA has the authority to exclude these media from the LDRs and should exercise that
authority.

For above-the-Bright Line contaminated soil subject to the LDRs, EPA has proposed a
numerical treatment standard of the less stringent of 10 times the universal treatment
standard ("UTS") or 90 percent reduction of hazardous constituents. This standard can be
made more stringent on a site-specific basis if necessary to protect human health or the
environment or the media can be granted a variance for a less stringent standard. For
below-the-Bright Line media, treatment standards would be established in the RMP on a
site-specific basis.

USWAG agrees with EPA that the LDR treatment standards for process wastes are
generally inapplicable to contaminated media, and USWAG supports the proposal to
develop LDR treatment standards (if applicable) for below-the-Bright Line media on a
site-specific basis through the RMP. Moreover, USWAG sees no reason why the same
approach should not be extended to above-the-Bright Line media. As the Agency has
repeatedly recognized, contaminated sites and contaminated media are highly
heterogeneous and the treatment methods applicable to process wastes are either
inappropriate for or less effective with contaminated media. Id. at 18807. The Agency
has recognized this fact by proposing an alternative numerical standard for above-the-
Bright Line media of 10 times the UTS or 90 percent reduction.

While this standard is certainly preferable to the UTS, USWAG believes that the Agency
should give generators the option of utilizing either the generic numerical standard or
developing a site-specific risk-based treatment standard. A risk-based treatment standard
is preferable to the proposed technology-based standard because it allows treatment to be
tailored to the risks actually posed by the media as managed, thereby ensuring that
resources are not wasted in treatment that is not necessary to ensure adequate protection
for human health and the environment. Moreover, a risk-based approach is consistent with
the basic philosophy of the HWIR-media proposal, which is to move away from the
mechanical application of technology-based standards to a system that more closely tailors
regulatory standards to the actual risks posed by the regulated materials.

A technology-based standard tends to be a moving target, moving steadily downward as
treatment and analytical technologies improve. Thus, such standards rapidly lead to
treatment for treatment's sake. A risk-based standard, on the other hand, allows the
generator to tailor the management of the regulated material to the actual risks posed by
the material taking into account the nature of the material, the potential routes of exposure.

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and the risks posed by alternative treatment standards. Accordingly, the Agency should
give generators the option of developing, with the implementing agency's approval, site-
specific risk-based standards for above-the-Bright Line media." (59)

Response: EPA appreciates the support of land disposal treatment standards specifically tailored
for hazardous contaminated soil.

Regarding the availability of the new soil treatment standards. EPA agrees with the commenter
and has. in the final rule, made the new soil treatment standards available for all hazardous
contaminated soils.

Regarding the concern that application of national, technology-based. LDR treatment standards to
contaminated soil will, in certain circumstances, result in treatment beyond the point at which
threats to human health and the environment are minimized and the suggestion that EPA allow
treatment standards for remediation waste to be developed based on risk, EPA agrees that
generally risk-based LDR treatment standards would be preferable to technology-based standards.
However, the Agency has. to date, been unable to develop risk-based standards that could be
applied at a national level largely because of the wide variety of site-specific physical and chemical
compositions encountered in the field and the uncertainties involved in evaluating long-term
threats to both humans and the environment posed by land disposal of prohibited wastes. In order
to minimize the likelihood that the technology-based standards for contaminated soil will result in
treatment to a point beyond that at which threats to human health and the environment are
minimized, the Agency has provided an opportunity for a treatment variance, which could be used,
on a site-specific basis to cap the technology-based treatment standards. The Agency believes
these determinations are possible, during remediations, on a site-specific basis because, during
remediations experts and field personnel typically gather detailed site-specific information on risks
posed by specific hazardous constituents or combinations of hazardous constituents, potential
direct and indirect exposure routes, risk pathways, and human and environmental receptors.
Through application of this information overseeing Agencies can. on a site-specific basis.
eliminate many of the long-term uncertainties associated with land disposal and, therefore, make
appropriate risk-based decisions regarding the extent of treatment needed to minimize short- and
long-term threats. This so called "site-specific minimize threat treatment variance" will be
available to all contaminated soils. The new treatment variance is discussed in detail in the
preamble to today's action.

• "Under the proposed rule, EPA would establish generic, technology-based treatment
standards for hazardous contaminated media above the Bright Line values and a
presumption for site specific LDR treatment variances for media below Bright Line
values. For hazardous contaminated media (other than soils), the proposed rule would
require treatment to meet the LDR treatment standard applicable to the hazardous wastes
contained in the media. For hazardous contaminated soils, the proposed rule would
establish new soil specific LDR standards requiring 90 percent reduction in the initial
concentrations of constituents subject to treatment at a cap at 10 times the universal
treatment standards ("UTS"). The proposed alternative treatment levels for soils could
provide needed regulatory relief at certain remediations. However. EPA's overall approach
on treatment levels is overly complex and creates too many separate regulatory regimes
that are not harmonized. The same rationale supporting EPA's decision to trust state
regulators to establish site-specific treatment standards for below Bright Line media

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applies equally to above Bright Line media. In both cases, the extent of treatment should
be determined solely by the actual risk at a specific site." (76. 77)

Response: EPA appreciates the support of the soil treatment standards.

Regarding the suggestion that EPA establish LDR treatment standards based on risk rather than
the performance of specific technologies. EPA agrees that generally risk-based LDR treatment
standards would be preferable to technology-based standards. However, the Agency has. to date.
been unable to develop risk-based standards that could be applied at a national level largely
because of the wide variety of site-specific physical and chemical compositions encountered in the
field and the uncertainties involved in evaluating long-term threats to human and the environment
posed by land disposal of prohibited hazardous waste (or hazardous contaminated soil). In order
to reduce the likelihood that the technology-based standards for contaminated soil will result in
treatment to a point beyond that at which threats to human health and the environment are
minimized, the Agency has provided an opportunity for a treatment variance, which could be used.
on a site-specific basis to cap the technology-based treatment standards. The Agency believes
these determinations are possible, during remediation, on a site-specific basis because, during
remediations. experts and field personnel typically gather detailed site-specific information on
risks posed by specific hazardous constituents or combinations of hazardous constituents, potential
direct and indirect exposure routes, risk pathways, and human and environmental receptors.
Through application of this information overseeing Agencies can, on a site-specific basis.
eliminate many of the long-term uncertainties associated with land disposal and, therefore, make
appropriate risk-based decisions regarding the extent of treatment needed to minimize short- and
long-term threats. This so called ''site-specific minimize threat treatment variance" will be
available to all contaminated soils. The treatment variance is discussed in detail in the preamble to
today's action.

• "EPA acknowledges that despite the arguments of some in favor of uniform national LDR
treatment standards, site-specific flexibility is warranted in determining treatment
requirements that should apply to contaminated media. See 61 Fed. Reg. at 18786.
Nonetheless, for above bright line media. EPA has proposed the uniform imposition of the
technology-based LDR approach used for process wastes (albeit somewhat modified for
contaminated soils). In doing so. the Agency has failed to articulate a clear and convincing
reason why above bright line media should be subject to generic national
technology-based standards while requirements for below bright line media should be
determined on a site-specific basis, particularly where the former framework could result
in the need to attain lower levels of the same hazardous constituent in treatment residuals
than the latter framework despite the fact that the same site risks are being addressed in
both cases.

To a certain extent. EPA has recognized that technology-based treatment standards may be
ill-suited for purposes of achieving site remediation objectives.12 Consequently, the
proposed rule would allow the overseeing agency to specify more stringent soil treatment
standards for above bright line media based on site-specific factors, i.e., based on the
threats posed by management of material at the site. See proposed 40 C.F.R. 269.32.
Curiously, while acknowledging the fact that site-specific factors may require more
treatment to satisfy the "minimize threat" standard of RCRA than that provided by EPA's
modified technology-based standards, the Agency fails to recognize fully the evident

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corollary: it is also entirely possible that site-specific conditions may lead the overseeing
agency to conclude that less treatment is warranted than that resulting from EPA's
technology-based standards.1'' Simply put. to the extent contaminated media remain
classified as hazardous waste, it is the very site-specific risk assessment nature of
remediation activities that warrants a risk-based treatment standard approach to the
"minimize threat'' standard of RCRA's LDR program.

12. Indeed, it is questionable whether they are even lawful in a site-specific remediation
context. The D.C. Circuit has cautioned that technology-based standards are not legally
permissible beyond the point at which there is a threat to human health or the
environment. HWTC v. EPA. 886 F.2d 355, 361-64 (D.C. cir. 1989), cert, denied. 111 S.
Ct. 139 (1990). In remediations approved and overseen by EPA Regions and states, the
overseeing agency typically makes a site-specific determination as to what concentrations
of a hazardous constituent constitute a threat to human health or the environment that
warrants attention. Indeed. EPA itself has acknowledged that has a general rule, cleanup to
health-based standards through implementation of an approved remedy in the context of
an agency overseen cleanup can be presumed to minimize threats even when the remedy
involves placement (or replacement) of contaminated media that does not meet the generic
technology-based LDR "treatment standards." 61 Fed. Reg. at 18812. Requiring
technology-based treatment to below those health-based standards simply is not needed to
address threats to human health.

In the final analysis, the same rationale that argues in favor of a site-specific approach to
treatment requirements for below bright line media applied, equally to above bright line
media. In both cases, it is the desire to encourage treatment remedies and innovative
technologies - and the assurance that protective treatment requirements will be imposed
and overseen by regulatory agencies on a site-specific basis - that warrant a flexible
approach to such requirements.14 Moreover, in both cases, the extent of treatment required
should be predicated on the risk presented by operation of the treatment technology and by
the treatment residual, not by focusing, as EPA has, on the putative "relative risk" posed
by the media before treatment.15" (79)

Response: The commenter suggests that, instead of establishing nationally applicable LDR
treatment standards, the Agency allow treatment standards to be developed entirely on a site-by-
site basis, considering risk. At this time, the Agency has rejected the site-by-site approach.
RCRA Section 3004(m) requires EPA to promulgate, ''levels or methods of treatment, if any. . .."
Although 3004(m) could be implemented in many ways, at this time. EPA believes the most
appropriate way to satisfy this RCRA Section 3004(m) mandate is to establish technology-based.
nationally applicable treatment standards, including standards tailored for contaminated soil.
Among other things, a national standard assures a basic measure of consistency in determining the
level of performance at which a technology-based standard can be found to minimize threats posed
by land disposal.

However, because EPA realizes that technology-based nationally applicable treatment standards.
because of site- and waste-specific characteristics, are sometimes not achievable or are
inappropriate. EPA has long provided for variances under these circumstances. In addition.
because the Agency believes that, during remediation, EPA and authorized states are in the
position to make site-specific risk-based minimize threat determinations, the Agency is also

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providing a variance, for contaminated soils if. on a case-by-case basis, it is determined that the
technology-based treatment standard would require treatment beyond the point at which threats are
minimized, as discussed above and in the preamble to today's rule.

• "In general. LDR requirements should not be applicable to media. Land Disposal
Restrictions were developed to be applicable only to wastes destined for land disposal.
Unlike process wastes, contaminated ground water or surface water would be treated
during the cleanup. The cleanup is not designed to containerize and dispose of the treated
water in any landfills. Likewise, when the soil is treated to an acceptable regulatory level.
it should be allowed to return to the remedial site where it was excavated. Presumably, the
soil cleanup standard was developed to treat soil so it can be left at the remedial site. The
cleanup standard was not developed to treat soil destined for land disposal. Furthermore.
stabilized soil may be disposed of in a Subtitle D landfill without causing additional risk to
human health and the environment." (96)

Response: The Agency shares concerns that application of LDRs to hazardous remediation
waste, including hazardous contaminated soil, might prove overly complex or create impediments
to efficient and aggressive remedial actions. However, the current statute seems to compel
application of LDRs to contaminated media, including soils. See RCRA Sections 3004 (d)(3) and
(e) (3). The Agency continues to believe that legislative action is needed to address application of
RCRA Subtitle C requirements, especially LDRs. to remediation waste, including contaminated
soil. If legislation is forthcoming, EPA will likely re-examine application of LDRs to hazardous
remediation waste, including hazardous contaminated soil. If there is no legislation. EPA may
choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the
meantime, EPA believes the alternative LDR treatment standards for contaminated soil
promulgated today, including the site-specific, risk-based minimize threat variance, represent a
significant improvement over the current practice of applying the treatment standards developed
for pure industrial hazardous waste.

The Agency has provided an opportunity for a site-specific, risk-based treatment variance, which
could be used, on a site-specific basis to cap the technology-based treatment standards when it is
determined that threats to human health and the environment are minimized with less treatment
than the technology-based treatment standards would require. The Agency believes these
determinations are possible, because, during remediation experts and field personnel typically
gather detailed site-specific information on risks posed by specific hazardous constituents or
combinations of hazardous constituents, potential direct and indirect exposure routes, risk
pathways, and human and environmental receptors. Through application of this information
overseeing Agencies can. on a site-specific basis, eliminate many of the long-term uncertainties
associated with land disposal and, therefore, make appropriate risk-based decisions regarding the
extent of treatment needed to minimize short- and long-term threats. This so called "site-specific
minimize threat treatment variance" will be available to all contaminated soils. The treatment
variance is discussed in detail in the preamble to today's action.

• "The proposed rule, of course, provides no relief from the current LDRs for waste-like
contaminated materials or contaminated debris, because these 2 classes of remediation
materials are completely excluded from the proposal.
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The proposal provides the option for relief from current LDRs for media contaminated at
levels below the Bright Line, provided the waste which contaminated the media was
placed before the effective data of the applicable LDRs. However, this option requires a
contained-in determination by the Director and requires that the contained-in
determination be made before the contaminated media is removed from the land.

Media contaminated at levels below the Bright Line by waste that was placed after the
effective date of the applicable LDRs remains subject to the LDRs. This is the case, even
if the Director makes a contained-in determination that the media no longer contains
hazardous waste and. therefore, is no longer subject to other RCRA regulations. In this
case, however, the proposal states that there will be a presumption for site specific
treatment variances.

All media contaminated at levels above the Bright Line would be subject to LDRs and
would not be eligible for contained-in determinations. (As indicated above, media above
the Bright Line would not necessarily present any greater risk than media below the Bright
Line, in light of the arbitrary caps and sometimes distorted assumptions used to develop
the Bright Line.) The proposed rule would establish new soil LDR standards for this
media. The alternative LDRs would be a generic requirement to treat the soils until
applicable constituents were reduced by 90% or to 10 times the Universal Treatment
Standard. This generic treatment standard would apply without regard to whether even the
existing level of constituents presented any risk at the site. Furthermore, the Agency is not
confident that remediation technologies exist which can meet this standard for
contaminated soils. Groundwater contaminated with constituents above the Bright Line
would be provided no relief from existing LDRs.

The Agency could not have proposed a more complicated scheme for application of LDRs
to contaminated media. A site with waste-like material and contaminated soil.
groundwater and debris could conceivably be subject to LDRs applicable in 7 or 8
different ways.

The above requirements would create great complexity in any remediation undertaking
and they bare no relationship to the risks created by a site. The LDRs should be set aside
for all remediation wastes, media and debris, as would be done under the Unitary
Approach. The treatment standard must be one based on site-specific risks because each
site is unique." (134)

Response: Many commenters expressed concern that application of LDRs to remediation wastes.
including contaminated soils, was overly complex and would impede remediations. The majority
of these commenters, like this person, advised that the Agency either exempt remediation waste
entirely from a duty to comply with LDRs or, if compliance with LDRs were required, to allow
treatment standards to be developed on a site-specific basis instead of promulgating national
treatment standards.

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continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation. EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today.
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or
apply. EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply
with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

Regarding the associated concern that application of LDRs would limit the techniques allowed for
treatment of hazardous contaminated soil, as discussed further in the preamble to today's action
the Agency believes that the soil treatment standards may be reliably achieved using a variety of
demonstrated, non-combustion, remediation technologies such as, depending on the exact nature
of the soil and contaminants in question: biological treatment, thermal desorption, and
dechlorination. If the soil treatment standards are shown, because of site- and waste-specific
conditions, to be unachieveable (i.e. cannot be achieved using a properly operated treatment
technology on which the treatment standards are based) or inappropriate for any given
contaminated soil! a land disposal restriction treatment variance is available under current
regulations at 40 CFR 268.44(h).

In addition, as noted in the preamble, technology-based standards have the virtue of providing an
objective measure of performance and thus removing as much of the usual uncertainty associated
with predictive decisions regarding protectiveness of land disposal. Notwithstanding this
comment, EPA sees nothing that makes this logic inapplicable to contaminated soils.

Regarding the suggestion that EPA allow treatment standards to be developed entirely on a site-by-
site basis, absent a national baseline, to date, the Agency has rejected this approach. RCRA
Section 3004(m) requires EPA to promulgate, "levels or methods of treatment, if any. ..."
Although 3004(m) could be implemented in many ways, at this time, EPA believes the most
appropriate way to satisfy this RCRA Section 3004(m) mandate is to establish technology-based.
nationally applicable treatment standards, including standards tailored for contaminated soil.
Among other things, a national standard assures a basic measure of consistency in determining the
level of performance at which a technology-based standard can be found to minimize threats posed
by land disposal. However, because EPA realizes that technology-based nationally applicable
treatment standards, because of site- and waste-specific characteristics, are sometimes not
achievable or are inappropriate. EPA has long provided for variances under these circumstances.
In addition, because the Agency believes that, during remediation, EPA and authorized states are
in the position to make site-specific risk-based minimize threat determinations, the Agency is also
providing a variance, for contaminated soils if. on a case-by-case basis, it is determined that the

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technology-based treatment standard would require treatment beyond the point at which threats are
minimized, as discussed above and in the preamble to today's rule.

• "Determining whether or not LDRs apply and. if so. which treatment standards are
relevant is exceedingly complicated and will defer the cleanup of sites, much as the
current regulator,' regime does. Most of these complexities are further discussed in the
sections that follow and could be easily resolved if the Agency were to promulgate the
Unitary Approach." (26)

Response: A number of commenters expressed concern that the regulations governing LDR
applicability to contaminated soil were too difficult to understand or apply. To address these
concerns. EPA has revised the final regulations to make it easier for generators to determine
whether they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to
comply with LDR applies to any given contaminated soil can now be ascertained by applying
information about the soil to questions in an easier to read chart. EPA believes this clarification
will assist generators in complying with LDR treatment standards and will ensure that hazardous
remediation wastes are treated appropriately.

Regarding the suggestion that EPA adopt the Unitary approach, as discussed in the preamble to
today's rulemaking, the Agency is not. at this time, taking action on the portions of the HWIR-
Media proposal which would have provided opportunities for some or all hazardous remediation
waste to exit large portions of the RCRA Subtitle C system. The Agency continues to believe that
legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs, to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine
application of LDRs to hazardous remediation waste, including hazardous contaminated soil. If
there is no legislation, EPA may choose to take additional regulatory action, which may include a
re-examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime, EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

• "EPA has proposed an extremely complex set of provisions applying the LDRs to both
hazardous and non-hazardous contaminated media. First, because contaminated media
above the Bright Line are not exempt from Subtitle C requirements, under EPA's proposal,
the LDRs will apply to media contaminated by hazardous wastes contain hazardous
constituents above the Bright Line. Second, for media contaminated by hazardous wastes
below the Bright Line, the proposed rule will apply the LDRs to the contaminated media
based on when the wastes were land disposed and if the media are "removed from the
land." See proposed 40 C.F.R. § 269.30(a); 61 Fed. Reg. 18804-08.

If the wastes were land disposed after the effective date of the applicable land disposal
prohibitions, LDRs attached to the media when it was placed on the land. The proposal
also appears to require the media be treated according to LDR treatment standards when it
is removed from the land, even if the media is determined no longer to contain the wastes.
Id.; but see 61 Fed. Reg. 18806 n.20. However, if the wastes were land disposed prior to
the effective date of the applicable land disposal prohibitions and the facility obtains a
"contained-out" determination before the media are removed from the land, then the media

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will be relieved from the LDR treatment standards. See proposed 40 C.F.R. § 269.30(a).
Response: A number of commenters expressed concern that the regulations governing LDR
applicability to contaminated soil were too difficult to understand or apply. To address these
concerns. EPA has revised the final regulations to make it easier for generators to determine
whether they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to
comply with LDR applies to any given contaminated soil can now be ascertained by applying
information about the soil to questions in an easier to read chart. EPA believes this clarification
will assist generators in complying with LDR treatment standards and will ensure that hazardous
remediation wastes are treated appropriately.

Although this commenter asserted confusion as to the proposed regulations on applicability. EPA
notes that the summary submitted with the comment (above) correctly summarizes LDR
applicability to contaminated soil under the proposal (and the final rule as well).

• "The Bright Line approach would create numerous categories of waste, each with differing
management regimes and treatment requirements (see table 1). For each of these differing
waste types there would be differing treatment requirements. As part of EPA's proposed
approach to LDRs. for many of these different waste types one would have to determine
whether the contaminating hazardous waste entered the environment before or after LDRs
were effective for that particular waste. Some media would be subject to process waste
LDRs, some to ostensibly media-specific LDRs and some to no LDR requirements. Some
LDR requirements would attach based on concentrations, some on the physical nature of
the media (sediment vs. soil) and some on chronology (when the contaminating hazardous
waste entered the media, regardless of whether the media still contained the waste). We
note that none of these determinations is in any way related to the actual potential risk
presented by the waste or its management, but are simply artificial regulatory constructs.

The Agency's proposed approach to LDRs is a cogent example of the needless complexity
and limitations imposed by the use of the contained-in basis for HWIR and the resulting
Bright Line approach. They add tremendous complexity and non-productive regulatory
decision steps to the process, without any commensurate risk related benefits, and
perpetuate RCRA's regulation of remediation waste based on their pedigree, not their
character and potential risk.

EPA 's proposed approach to determining LDR applicability is complex, administratively
burdensome and entirely unrelated to risk

In the preamble, EPA suggests the following decision making approach for making "good
faith effort[s] to determine whether media were contaminated by hazardous waste and
ascertain the dates of placement".

The Agency believes that by using available site and waste-specific information such as
manifests, vouchers, bills of lading, sales and inventory records, storage records, sampling
and analysis reports, accident reports, site investigation reports, spill reports, inspection
reports and logs, and enforcement orders and permits, facility owner/operators would
typically be able to make these determinations.

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Keep in mind that many Corrective Action sites have in excess of 100 solid waste
management units where such determinations might have to be made, and that the
determination will decide to what degree potential reform under HWIR \\ouid be limited
on a site-specific basis.

Such an evaluation for multiple constituents at multiple units would constitute a major
study effort in its own right, entirely unrelated to potential risks and site specific
determinations of remedial and waste management needs. While EPA's policy statement
that the general presumption will be that the contaminating materials are not hazardous
waste, and that, if hazardous, they entered the environment prior to the effective dates of
the LDRs is welcome, it is not sufficient. Clearly, the proposed approach to addressing
LDRs. driven by the contained-in Bright Line approach, will add tremendous complexity
to remediation waste management decisions and serve largely to limit the degree to which
disincentives to remediation are removed." (117)

Response: The commenter raises two concerns. First, that application of LDRs to remediation
waste, including contaminated media, is overly complex and burdensome. Second, that it will be
prohibitively difficult to apply information to determine if LDRs apply to any given contaminated
media.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime, EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today.
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or
apply, EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply
with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

Regarding the difficulty of using information on the types of waste present and the dates of waste
disposal to determine whether a duty to comply with LDRs applies. EPA is not persuaded that the
idea that generators may apply their knowledge of the types of wastes that were placed at their site
and the dates of waste placement would constitute a "major study in its own right." EPA has
consistently used and encouraged reliance on generator knowledge to determine whether
hazardous wastes are present at Superfund sites and has not seen it add unduly to the time or cost

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associated with Superiiind remediation. Current regulations require that generators and hazardous
waste management facilities keep records to document the type of hazardous waste they generate.
whether and when the waste was treated to meet applicable land disposal restriction treatment
standards, and the dates and locations of the wastes ultimate disposition. In addition, as noted in
the preamble to the proposed rule. EPA continues to believe that it will be the exceptional
circumstance where generators will know, or will reasonably presume, that any given
contaminated medium was contaminated by hazardous waste placed after the effective date of the
applicable land disposal restriction. This is because, generally the contamination of environmental
media by hazardous waste after the effective date of the applicable land disposal restriction would
involve a violation of LDRs. subject to substantial fines and penalties including criminal sanctions.

• "Application of the LDRs to remediation wastes under this proposal is particularly
onerous. First, one has to determine whether contaminated media are hazardous or
nonhazardous. Then, a determination must be made as to whether or not the hazardous
waste contaminating the media (1) was prohibited from land disposal at the time it first
contaminated the media or (2) is prohibited from land disposal when the media are
excavated. Further, for nonhazardous contaminated media, if the contaminating waste was
not prohibited at the time it first came into contact with the media, the excavated
contaminated media would be exempt from LDR treatment standards. Thus, contaminated
media deemed nonhazardous under this proposal may or may not be subject to LDR. For
hazardous groundwater and surface water, as well as sediment. §268.40 LDR treatment
standards apply, but for hazardous soil, modified LDR treatment standards apply.

The modified standards include treatment of any hazardous soil that contains constituents
at a level greater than 10 times the UTS concentrations. Soils that are characteristic
hazardous waste because of ignitability, corrosivity or reactivity would have to be treated
to deactivate the characteristic, as well as reduce the concentrations of any other
constituents subject to treatment in the soil by 90 percent (but not less than 10 times the
UTS values). Soil that is TC hazardous would have to be treated to reduce the
concentrations of the TC constituent and any other constituents subject to treatment in the
soil by 90 percent (but not less than 10 times the UTS values). Finally, soils contaminated
with listed wastes would have to be treated to reduce the concentrations of all constituents
subject to treatment in the soil by 90 percent (but not less than 10 times the UTS values).

The LDR approach taken in this proposal will more than cancel out any workable
provisions, in Eastman's opinion. Because of its complexity, many sites needing cleanup
will remain as is. The Unitary Approach, however, is straightforward in terms of LDR.
and will promote the cleanup of sites through the application of easily understood
regulations." (26)

Response: The Agency shares concerns that application of LDRs to hazardous remediation waste.
including hazardous contaminated soil, might prove overly complex or create impediments to
efficient and aggressive remedial actions. However, the current statute seems to compel
application of LDRs to contaminated media, including soils. See RCRA Sections 3004 (d)(3) and
(e) (3). The Agency continues to believe that legislative action is needed to address application of
RCRA Subtitle C requirements, especially LDRs. to remediation waste, including contaminated
soil. If legislation is forthcoming, EPA will likely re-examine application of LDRs to hazardous
remediation waste, including hazardous contaminated soil. If there is no legislation. EPA may

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choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the
meantime. EPA believes the alternative LDR treatment standards for contaminated soil
promulgated today, including the site-specific, risk-based minimize threat variance, represent a
significant improvement over the current practice of applying the treatment standards developed
for pure industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or
apply, EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply
with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

• "Further. EPA has not carefully dratted many of its proposed regulations. EPA's proposed
requirements in section 269.30(a) and (b) appear to apply the proposed LDR requirements
to materials which are removed from the land, without regard to whether they are
subsequently disposed of on the land. Further, in proposing to apply the LDR regulations
to some materials determined not to contain hazardous waste. EPA has adopted the
awkward construction of referring to "the waste contaminating the media." Because the
prohibitions of Part 268 apply to waste and not to media. EPA attempts to treat the media
as if it continues to contain the waste notwithstanding the proposed determination in the
RMP. The common understanding of the terms, however, creates an internal contradiction
that is avoided only by casting aside English in favor of RCRA-ese.

Such confusing and unnecessary language results from adopting a confusing and
unnecessary approach. EPA has described its legal authority which would allow it to avoid
"carrying through" LDR treatment standards from previously disposed wastes to
contaminated media. 61 Fed. Reg. 18835. However, if EPA chooses as a matter of policy
to adopt its preferred approach, it may state its regulations in clear English. The
requirements apply: (1) To all remediation media destined for land disposal which contain
a hazardous waste; and (2) to all remediation media destined for land disposal which have
received a regulatory determination under an RMP that the media no longer contain a
hazardous waste, and but for that determination would be considered to contain a
hazardous waste disposed of on the land after the effective date of an applicable LDR
prohibition." (112)

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promulgated today, including the site-specific, risk-based minimize threat variance, represent a
significant improvement over the current practice of applying the treatment standards developed
for pure industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or
apply, EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply
with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

In addition. EPA has clarified the final regulations to ensure that generators are explicitly informed
that, in all cases, a duty to comply with LDRs attaches only to contaminated soil that is destined
for land disposal.

• "Determining whether or not LDRs apply and to which media they apply is too complex
and onerous under the Bright Line Approach. This part of the proposal alone will assure
the continued delay in cleanups.'1 (26)

• "1. The LDR applicability issue is another example of why an all-remediation waste,
non-bright-line approach based on a contingent management legal theory is
necessary.

EPA describes in the HWIR-Media preamble the information necessary to determine if
LDRs apply to a particular contaminated medium:

[I]n order to determine if a given environmental medium must comply with LDRs
one must know the origin of the material contaminating the medium (i.e..
hazardous waste or not hazardous waste), the date(s) the material was placed (i.e..
before or after the effective date of the applicable land disposal prohibition), and
whether or not the medium still contains hazardous waste (i.e., contained-in
decision or not). 61 Fed. Reg. 18.805.

Of course, to presage this series of decisions, one must have first decided if he or she is
dealing with "sludgy dirt" or "dirty sludge." As noted earlier in section III.C.I. of the
comments, all of this confusion and complexity can be eliminated through application of
EPA's contingent management authority to promulgate the Unitary Approach such that
LDRs would not attach to the remediation waste in the first instance.
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2. The Project objects to the proposed treatment requirements as unnecessary.
arbitrary, and likely to create further impediments to voluntary commencement of
remediation activities.

As an initial matter, the Project questions whether the FACA came to agreement that
"higher risk media should be subject to generic national standards." 61 Fed. Reg. 18.806.
An arbitrary, technology-based treatment standard is unrelated to protection of human
health and the environment. Furthermore. EPA has not shown that the specified
reductions are either achievable or appropriate for remediation wastes. Last, such generic
standards discourage use of innovative technologies and constitute a further disincentive
to commencement of early remediation activities. We urge EPA to abandon the
mandatory treatment concept entirely and leave it to the States to make risk-based
remedial decisions on a site-specific basis.

3. The Project objects to technology-based treatment standards as counterproductive
in a remediation context.

Technology-based (or technology-forcing) treatment standards may arguably be
appropriate for newly-generated wastes as yet another disincentive to their generation in
the first instance. See 61 Fed. Reg. 18.806. However, they are completely out of place in
a remediation context, where the goal should be to encourage "generation" of remediation
wastes to the extent necessary to reduce actual threats to human health or the environment.
Technology or treatment for its own sake may provide no additional environmental
protection while adding burdensome regulatory requirements that would be a further
disincentive to early remediation. For this reason, we urge EPA to abandon the arbitrary
mandatory treatment approach." (55)

Response: The commenter raises two concerns: (1) application of LDRs to hazardous remediation
waste is overly complex and will create impediments to efficient and aggressive remedial actions;
and. (2) technology-based treatment standards are inappropriate in the remedial context. As a
remedy to both these concerns, the commenter suggests that treatment decision for hazardous
remediation waste be deferred to the states to determine on a site-by-site basis.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including
hazardous contaminated soil, might prove overly complex or create impediments to efficient and
aggressive remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs, to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today.
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or

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apply. EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply
with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

Regarding the associated concern that application of technology-based LDRs would limit the
techniques allowed for treatment of hazardous contaminated soil, as discussed further in the
preamble to today's action the Agency believes that the soil treatment standards may be reliably-
achieved using a variety of demonstrated, non-combustion, remediation technologies such as.
depending on the exact nature of the soil and contaminants in question: biological treatment.
thermal desorption. and dechlorination. If the soil treatment standards are shown, because of site-
and waste-specific conditions, to be unachieveable (i.e. cannot be achieved using a properly
operated treatment technology on which the treatment standards are based) or inappropriate for any
given contaminated soil, a land disposal restriction treatment variance is available under current
regulations at 40 CFR 268.44(h). In addition, as noted in the preamble, technology-based
standards have the virtue of providing an objective measure of performance and thus removing as
much of the usual uncertainty associated with predictive decisions regarding protectiveness of land
disposal. Notwithstanding this comment, EPA sees nothing that makes this logic inapplicable to
contaminated soils.

Regarding the suggestion that EPA allow treatment standards to be developed entirely on a site-by-
site basis, absent a national baseline, to date, the Agency has rejected this approach. RCRA
Section 3004(m) requires EPA to promulgate, "levels or methods of treatment, if any. . .."
Although 3004(m) could be implemented in many ways, at this time, EPA believes the most
appropriate way to satisfy this RCRA Section 3004(m) mandate is to establish technology-based.
nationally applicable treatment standards, including standards tailored for contaminated soil.
Among other things, a national standard assures a basic measure of consistency in determining the
level of performance at which a technology-based standard can be found to minimize threats posed
by land disposal. However, because EPA realizes that technology-based nationally applicable
treatment standards, because of site- and waste-specific characteristics, are sometimes not
achievable or are inappropriate. EPA has long provided for variances under these circumstances.
In addition, because the Agency believes that, during remediation. EPA and authorized states are
in the position to make site-specific risk-based minimize threat determinations, the Agency is also
providing a variance, for contaminated soils if, on a case-by-case basis, it is determined that the
technology-based treatment standard would require treatment beyond the point at which threats are
minimized, as discussed above and in the preamble to today's rule.

• "EPA's proposed LDR requirements for contaminated media are neither necessary nor
technically sound. The LDR requirements were written to address hazardous wastes from
ongoing manufacturing operations. In the remediation context, LDR requirements are
significant impediments to reasonable, site-specific, risk-based remedial action decisions.
Currently the LDR treatment standards dictate, to a large extent, how contaminated media
is to be managed without regard to site-specific conditions. Large quantities of soil and
groundwater are frequently sent off-site for costly treatment, when in fact they may be
better and more efficiently managed on-site.
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The Agency recognizes this dilemma and attempts to address it under the Bright-Line
Approach by proposing alternative treatment standards for soils that are above the Bright
Line. SOCMA considers this proposal to be both confusing and unsound.

For instance, the proposal requires that if any constituent in a remedial waste is at a
concentration above the Bright Line, then all constituents in the waste will be required to
be treated to a 90 % reduction. This could be particularly costly if the same treatment
method cannot be used for all constituents. Further, application of this concept to
complicated mixtures, as are often present at waste sites, could be quite confusing. For
instance, a waste could contain 20 constituents but only one could be at a concentration
above the Bright Line. The others could all fall at concentrations below the Bright Line.
and some could fall near the practical quantification limit (PQL). If the entire waste were
treated to a 90% reduction, the concentration of some of the materials may fall below the
PQL. They could even fall below the mean detection limit (BMDL). It would be
impossible to demonstrate a 90% reduction if some of the treated constituents fall below
the PQL or the BMDL.

The delays in. and avoidance of. cleanups caused by both the current and the proposed
LDR regulations could be avoided if the Agency promulgated the Unitary Approach. This
would allow the owners and operators of the contaminated site, the overseeing authority,
and the community to make reasonable, site-specific, risk-based remedial action decisions
to address the management and appropriate level of treatment for remediation wastes."
(86)

Response: The commenter raises two concerns: (1) that LDR requirements present significant
impediments to cleanups (especially when a treatment train might be needed) and (2) that the
relationship of LDR requirements to the "bright line" is complicated and raises many
implementation difficulties. To remedy both these concerns, the commenter suggests that EPA
defer decisions about LDR treatment requirements to site-specific, risk-based determinations.

Regarding the concern that LDRs present significant impediments to cleanups, the Agency shares
concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive
remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste,
including hazardous contaminated soil. If there is no legislation. EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime, EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. Furthermore, to address specific concerns that the proposed
regulations governing LDR applicability to contaminated soil were too difficult to understand or
apply, EPA has revised the final regulations to make it easier for generators to determine whether
they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to comply

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with LDR applies to any given contaminated soil can now be ascertained by applying information
about the soil to questions in an easier to read chart. EPA believes this clarification will assist
generators in complying with LDR treatment standards and will ensure that hazardous remediation
wastes are treated appropriately.

Regarding the relationship of the bright line to LDR treatment standards. EPA is not. at this time
going forward with a bright line approach to comprehensive regulatory reform for remediation
waste and has withdrawn the portions of the proposal that addressed the bright line and
comprehensive reform. If. in the future, EPA takes action to establish a bright line to distinguish
between higher and lower risk contaminated media, EPA will address the relationship of the bright
line to soil treatment requirements, as necessary, at that time.

In addition, as noted in the preamble, technology-based standards have the virtue of providing an
objective measure of performance and thus removing as much of the usual uncertainty associated
with predictive decisions regarding protectiveness of land disposal. Notwithstanding this
comment. EPA sees nothing that makes this logic inapplicable to contaminated soils.

Regarding the suggestion that EPA allow treatment standards to be developed entirely on a site-by-
site basis, absent a national baseline, to date, the Agency has rejected this approach. RCRA
Section 3004(m) requires EPA to promulgate, "levels or methods of treatment, if any. . .."
Although 3004(m) could be implemented in many ways, at this time, EPA believes the most
appropriate way to satisfy this RCRA Section 3004(m) mandate is to establish technology-based.
nationally applicable treatment standards, including standards tailored for contaminated soil.
Among other things, a national standard assures a basic measure of consistency in determining the
level of performance at which a technology-based standard can be found to minimize threats posed
by land disposal. However, because EPA realizes that technology-based nationally applicable
treatment standards, because of site- and waste-specific characteristics, are sometimes not
achievable or are inappropriate. EPA has long provided for variances under these circumstances.
In addition, because the Agency believes that, during remediation. EPA and authorized states are
in the position to make site-specific risk-based minimize threat determinations, the Agency is also
providing a variance, for contaminated soils if, on a case-by-case basis, it is determined that the
technology-based treatment standard would require treatment beyond the point at which threats are
minimized, as discussed above and in the preamble to today's rule.

[Note 1 — add something on 90% after figure out sampling approach.]

Regarding the concern about application of multiple technologies to the same contaminated soil
(so called, treatment trains), EPA believes there is nothing, per se. inappropriate about applying
multiple treatment technologies to contaminated soil. There may be some situations, in fact, where
two technologies are needed, the most common example being where soil is contaminated with
high concentrations of metals and volatile organic constituents. There may also be situations
where application of a treatment train is not appropriate, for example, treatment of relatively low
concentrations of non-volatile organic constituents in a soil that also contains high concentrations
of metals. In this situation, as EPA noted in the recent treatment-variance rule, a treatment
variance may be appropriate. See 62 FR at 64505 (Dec. 5. 1997).

• "The entire discussion regarding the applicability of Land Disposal Restrictions (LDR) for
Hazardous Soils is confusing, complex, and very likely to be unenforceable. Further, the

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most qualified LDR expert will have great difficulty explaining the circumstances where
LDRs do not attach to environmental media and when LDRs do attach. For example, at
facilities that lost interim status on November 8. 1995. do the LDRs attach to sludges in
the unclosed, unlined surface impoundments that continue to receive non-hazardous
wastewater after that date?" (41)

Regarding the applicability of LDR treatment standards to sludges in unclosed, unlined surface
impoundments at facilities that lost interim status on November 8. 1995 when those
impoundments continued to receive non-hazardous waste water, without more precise information
(e.g., did the impoundment formerly receive hazardous waste) the Agency can not make a
determination.

One commenter urges EPA to clarify that the rule structure does not require an in-depth
determination of when the media was land disposed. They understand it to mean that it depends
on whether the medium, prior to removal, has been granted a Bright Line contained-out
determination in an approved RMP, and whether such contained-out determination resulted from
the rare circumstances of the inadvertent spill of a hazardous waste or the illegal disposal of a
hazardous waste.

• "The proposed rules at 40 C.F.R. 269.30 and the preamble discussion of those rules
beginning on page 18804 are extremely confusing and unduly complex. The issue of
when the waste was land disposed, i.e.. before or after the date of the LDR prohibition for
that waste, seems to be irrelevant in almost all cases. The agency's "retroactivity
principal" is all that is needed to establish appropriate rules for LDR treatment.

Specifically, it is our understanding that the LDR rules would apply as follows:

1. A medium that contains hazardous waste constituents at or above the
Bright Line levels when it is removed from the ground would have to meet
applicable LDR treatment standards prior to land disposal.

2. A medium that contains hazardous waste constituents below the Bright
Line levels when it is removed from the ground and that has been determined not
to contain hazardous waste under an approved remediation management plan
(RMP) would not be subject to LDR treatment standards, with two exceptions:
First, the LDR treatment standards would have to be met if the medium was
contaminated by an accidental spill of a hazardous waste that had constituent
concentrations at or above the Bright Line levels when the spill occurred. Second,
the LDR treatment standards would apply if the medium contains a hazardous

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waste that was subject to an LDR prohibition when it was land disposed but the
waste did not meet the applicable LDR treatment standards at that time. In other
words, the waste was illegally disposed because it failed to meet the applicable
LDR treatment requirements. In these cases, despite the fact that medium is
below contained-out levels, it would have to be further treated to LDR treatment
standards, if such standards are not already met.

If our understanding is correct, the rule structure does not require an in-depth
determination of when the media was land disposed. It merely depends on whether the
medium, prior to removal, has been granted a Bright Line contained-out determination in
an approved RMP. and whether such contained-out determination resulted from the rare
circumstances of the inadvertent spill of a hazardous waste or the illegal disposal of a
hazardous waste. We urge EPA to clarify the LDR rules as noted above and remove the
unnecessary complexity in these rules that involve issues of when the waste was disposed
of in relation to its LDR prohibitions." (82)

Response: The commenters understanding of the proposed regulations on LDR applicability is
correct. Note though, that, because of concerns over implementation difficulties and other issues
EPA is not. at this time, going forward with the bright line or any of the other comprehensive
approaches to remediation waste reform discussed in the HWIR-Media proposal. Since the ability
to apply for and receive a contained-in determination under current policy (as discussed in the
preamble to the final rule) is not affected by this decision, the calculation as to whether or not a
duty to comply with LDR treatment standards for any given contaminated soil is essentially the
same. However, the contained-in decision under existing policy (as discussed in the preamble to
the final rule) would generally govern rather than the type of bright-line, remediation management
plan, contained-in decision proposed.

A number of commenters, like this person, expressed concern that the regulations governing LDR
applicability to contaminated soil were too difficult to understand or apply. To address these
concerns. EPA has revised the final regulations to make it easier for generators to determine
whether they have a duty to comply with LDRs for contaminated soil. Whether or not a duty to
comply with LDR applies to any given contaminated soil can now be ascertained by applying
information about the soil to questions in an easier to read chart. EPA believes this clarification
will assist generators in complying with LDR treatment standards and will ensure that hazardous
remediation wastes are treated appropriately.

A few commenters state that the proposed rule will produce a disincentive to emergency response
to spills, particularly to spills of commercial products on the P and U lists.

• "As for the strong LDR disincentives which would remain under the Bright Line proposal.
EPA has previously acknowledged that applying the LDRs to remediation wastes produces
exactly the opposite of the desired result - a "strong incentive to leave hazardous waste and
contaminated media in place." 61 Fed. Reg. 18782. This contrasts with the situation
involving as-generated wastes, where the burdens of the LDR program "encouraged many
generators to reduce the amount of hazardous waste they generate." Id. Media which
became contaminated w ith waste placed after the date for which LDR was finalized for
that waste appear to be ineligible for the relaxed LDR requirements applicable to media
determined to no longer contain hazardous waste, regardless of their concentrations

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relative to the Bright Line. This proposed feature of the rule interferes with one of the
more significant benefits anticipated for the rule. i.e.. its applicability to spills - -
particularly to spills of commercial products on the P and U lists.

Consider the following actual example. A CMA member spilled a rail car of propylene
dichloride on the ground inside its Louisiana plant a few years ago. Liquid was picked up
immediately and contaminated soil was excavated over the course of the next few days.
Because the product was a spill of a U-listed commercial chemical product with
incineration as the required LDR treatment, all of the soil was ultimately incinerated and
the soil residue from the incinerator was placed in a Subtitle C landfill. Because of the
incinerator capacity and the volume of soil involved, it took more than a year to complete
the incineration of the soil. Since propylene dichloride is a volatile liquid, most of the
contaminant evaporated before incineration took place and none of it survived
incineration. A better technology would have been to strip the soil (capturing the volatiles)
and then place the resulting soil back into the hole from which it originated. In fact,
incineration was not necessary, and because of the resulting delay, incineration provided
little or no environmental benefit at great cost. Subtitle C landfilling of the soil residue
from the incinerator was both costly and wholly unnecessary.

While we hope no such spills ever occur in the future, they undoubtedly will. Under the
proposed Bright Line approach, substantial delay would occur. Sampling will be required
to determine what areas of soil were never contaminated with the spilled product and thus
are not subject to the LDRs. Such data are needed to determine the scope of
contamination, and to delineate areas which might qualify as no longer containing product.
thus subject only to LDR requirements which might be specified by site-specific variance
in an RMP, or to delineate areas subject to Subtitle C requirements which qualify for the
generic, modified LDRs. Contaminated debris would have to be segregated to be shipped
to the incinerator. We had hoped this proposal would have been structured such that
appropriate action could be taken when such spills occur, rather than continued blind
adherence to rules created for process waste.

Apart from the added cost and delay involved in the spill cleanup example just noted, the
proposed Bright Line approach will prove problematic in still other ways. In the typical
spill response situation, after all, there is little doubt that prompt action will be taken to
prevent risks to human health and the environment; the issue is the cost involved and the
potential waste of scarce remediation resources due to overly prescriptive regulatory
controls. In the typical case involving remediation of historic contamination, on the other
hand, there is no legal compulsion driving cleanup forward, and the facility owner faces a
web of incentives and disincentives in deciding whether, when, and how to initiate
remediation activities. Unless the regulatory disincentives can be eliminated, many
remediation projects will move slowly, or will not even begin." (112)

Response: A number of commenters expressed concern about application of LDR treatment
standards to soil contaminated by spills of prohibited hazardous waste. These commenters
typically asserted that application of LDRs to such soils would delay remediation and
unnecessarily increase spill response costs.
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First, the Agency assures commenters that whether or not contaminated soil is subject to LDRs.
the existing exemptions governing spill response continue to apply. This means that, under 40
CFR 264.1(g)(8) immediate response activities are not required to meet RCRA hazardous waste
management requirements. Similarly, accidental spilling of hazardous waste (or commercial
chemical products) is not placement, and therefore does not (automatically) create a land based
unit subject to RCRA requirements or constitute a violation of LDR requirements. See. 45 FR
76626 (Nov. 19. 1980). issuing clarifying regulations at 40 CFR 264.10(g) to provide that
hazardous waste treatment and storage activities undertaken in immediate response to an
accidental spill are exempt from the 40 CFR Part 264 and 265 regulations governing treatment and
storage and do not require permits and Sept. 29. 1986 memo from J. Winston Porter (EPA
Assistant Administrator) to Fred Hansen interpreting the 40 CFR 264.10(g) regulations: also see.
55 FR at 30808 - 30809 (July 27, 1990) "a one-time spill of hazardous waste would not be
considered a solid waste management unit."

Following initial spill response activities, soil contaminated by spills of prohibited listed hazardous
waste, including soil contaminated by spills of commercial chemical products which are hazardous
wastes when they are discarded, is. however, subject to LDRs. As discussed in detail in the
preamble to today's final rule, this is because land disposal prohibitions attach at that point a
hazardous waste is generated and continue to apply until the point at which threats poised by land
disposal of the waste are minimized. Chemical Waste Management v. EPA, 976 F.2d at 13. 14
and 24. Consequently, in the case of listed hazardous waste land disposed after the effective date
of an applicable land disposal prohibition (i.e., illegally land disposed or accidentally spilled), the
prohibition has already attached to the waste and continues to apply to any soil contaminated by
the waste.

Regarding the concern that LDRs present significant impediments to cleanups, the Agency shares
concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive
remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation. EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste. For example, in the commenters case, the waste could be treated to a
90 % reduction which EPA's data shows should be achievable using steam stripping. A
contained-out determination could classify the treated soil as no longer containing hazardous
waste, or a risk-based variance could be pursued. The liquid spill residue picked up also could be
recycled in which case it would not be a solid or hazardous waste at all, since it never would have
been abandoned (see initial language of 261.33).

• "Media that became contaminated with waste placed after the date for which LDR was
finalized for that waste are ineligible to be handled as contaminated media regardless of

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their concentrations relative to the "Bright Line"' approach. This proposed feature of the
rule stands in the way of one the more significant benefits of the HWIR Media Rule. i.e..
the applicability of the rule to spills, particularly of spills of commercial products on the P
and U lists.

By way of example. The Dow Chemical Company spilled a rail car of propyiene
dichloride on the ground inside its Louisiana plant a few years ago. Liquid was picked up
immediately and contaminated soil was exacted excavated over the course of the next few
days. Because the product was a spill of a U listed commercial product with incineration
as the required LDR treatment, all of the soil was ultimately incinerated and the soil
residue form the incinerator was placed in a Subtitle C landfill.

Because of incinerator capacity and the volume of soil involved, it took more than a year
to complete the incineration of the soil. Since the material is a volatile liquid, most of the
contaminant evaporated before incineration took place and none of it certainly survived
incineration. A better technology would have been to strip the soil capturing the volatile
and then put the resulting soil back into the hole it came from.

Incineration was not necessary in this case and because of the resulting delay was a poor
environmental practice. Subtitle C landfilling of the soil residue from the incinerator was
even more foolish. While we hope that no more such spills occur, they undoubtedly will.
This HWIR Rule could have been structured such that the proper thing could be done
when such spills occur, rather than continue with blind application of rules created for
process wastes.

A further complication of the proposed ineligibility of media contaminated with waste
placed after the date of the LDR requirements for that waste, is that it makes it necessary
for one to try and determine when each and every waste entered the environment. While
this seems like a lot of wasted effort in general, such a requirement will grossly complicate
remediating areas where wastes were handled during a period overlapping the applicable
LDR effective date. This could include many of the types of areas needing remediation
such as permitted landfills, impoundments, piles and areas contaminated by systematic
leaks. EPA should remove any application of the effective LDR date and to assure that all
remediation wastes (or contaminated media) are subject to the same rules." (93)

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accidental spill are exempt from the 40 CFR Part 264 and 265 regulations governing treatment and
storage and do not require permits and Sept. 29. 1986 memo from J. Winston Porter (EPA
Assistant Administrator) to Fred Hansen interpreting the 40 CFR 264.10(g) regulations: also see.
55 FR at 30808 - 30809 (July 27. 1990) "a one-time spill of hazardous waste would not be
considered a solid waste management unit."

Regarding the concern that LDRs present significant impediments to cleanups, the Agency shares
concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive
remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs. to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste,
including hazardous contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime, EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste.

• "One of the significant unintended disincentives of the proposed approach to LDRs is in
the area of emergency responses to spills. While much of industry has made tremendous
strides in spill prevention, accidental events can and do still occur. Many raw materials
spills can impart P or U codes to media. The greatest need immediately following a spill is
generally to remove the greatest amount of contaminant and contaminated media as
practicable, before it can spread significantly. Traditionally RCRA has been an
impediment to such rapid response, as the generated material has been classified as
hazardous and on-site storage/treatment becomes impracticable, with off-site management
of large volumes of material economically prohibitive. HWIR would do little to remove
that impediment. For new spills the most concentrated material (that you most wish to
remove) would remain hazardous and all of the media would remain subject to technology
based LDRs (which attach based on pedigree and date of contamination, not risk). The
Unitary approach would obviate this impediment by allowing an overseeing Agency to
quickly issue a RAP (perhaps a generic RAP for spill response) to allow rapid, site
specific response to a spill without the impediments of LDRs or RCRA storage
requirements." (117)

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Response: A number of commenters expressed concern about application of LDR treatment
standards to soil contaminated by spills of prohibited hazardous waste. These commenters
typically asserted that application of LDRs to such soils would delay remediation and
unnecessarily increase spill response costs.

First, the Agency assures commenters that whether or not contaminated soil is subject to LDRs.
the existing exemptions governing spill response continue to apply. This means that, under 40
CFR 264.1(g)(8) immediate response activities are not required to meet RCRA hazardous waste
management requirements. Similarly, accidental spilling of hazardous waste (or commercial
chemical products) is not placement, and therefore does not (automatically) create a land based
unit subject to RCRA requirements or constitute a violation of LDR requirements. See, 45 FR
76626 (Nov. 19, 1980), issuing clarifying regulations at 40 CFR 264.10(g) to provide that
hazardous waste treatment and storage activities undertaken in immediate response to an
accidental spill are exempt from the 40 CFR Part 264 and 265 regulations governing treatment and
storage and do not require permits and Sept. 29, 1986 memo from J. Winston Porter (EPA
Assistant Administrator) to Fred Hansen interpreting the 40 CFR 264.10(g) regulations: also see.
55 FR at 30808 - 30809 (July 27. 1990) "a one-time spill of hazardous waste would not be
considered a solid waste management unit."

Following initial spill response activities, soil contaminated by spills of prohibited listed hazardous
waste, including soil contaminated by spills of commercial chemical products, is, however, subject
to LDRs. As discussed in detail in the preamble to today's final rule, this is because land disposal
prohibitions attach at that point a hazardous waste is generated and continue to apply until the
point at which threats poised by land disposal of the waste are minimized. Chemical Waste
Management v. EPA, 976 F.2d at 13, 14 and 24. Consequently, in the case of listed hazardous
waste land disposed after the effective date of an applicable land disposal prohibition (i.e., illegally
land disposed or accidentally spilled), the prohibition has already attached to the waste and
continues to apply to any soil contaminated by the waste.
Regarding the concern that LDRs present significant impediments to cleanups, the Agency shares
concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive
remedial actions. However, the current statute seems to compel application of LDRs to
contaminated media, including soils. See RCRA Sections 3004 (d)(3) and (e) (3). The Agency
continues to believe that legislative action is needed to address application of RCRA Subtitle C
requirements, especially LDRs, to remediation waste, including contaminated soil. If legislation is
forthcoming, EPA will likely re-examine application of LDRs to hazardous remediation waste.
including hazardous contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
hazardous contaminated soils and other hazardous remediation wastes. In the meantime, EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today,
including the site-specific, risk-based minimize threat variance, represent a significant
improvement over the current practice of applying the treatment standards developed for pure
industrial hazardous waste.

A few commenters indicate that the proposed rule eliminates flexibility when excavation is
involved.
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"One of the principal goals of this proposed rule is to achieve a net environmental benefit
by facilitating the cleanup of as many contaminated sites as possible. EPA has also
recognized numerous preamble discussions that certain of the RCRA Subtitle C provisions
actually create disincentives to cleanup and create a preference for leaving waste in place.
In certain instances, it is not clear how the proposed regulations will relieve these
disincentives due to their restrictive nature.

EPA suggested that media remediation sites that are overseen by a regulatory authority are
being allowed a great deal of flexibility in managing the units. However, several
provisions of the proposed rule effectively eliminate flexibility when excavation is
involved.

1. EPA has proposed the Bright Line values at a risk level of 10" , but allows the
overseeing agency to determine that remediation wastes with constituents below the Bright
Line levels still contain a hazardous waste. It's unlikely that the agency overseeing a
remediation unit which has media contaminated with a hazardous waste and which has
site-specific cleanup numbers below the 10 level, wquld be willing to agree that the
media no longer contains a hazardous waste at the 10° level. Once excavation begins.
LDR requirements may be triggered. Therefore, at some remediation sites there will be
two sets of "cleanup" numbers that will have to be met. One set is the site-specific risk-
based cleanup number for each constituent and the other is the LDR standard for each
constituent subject to treatment. (Potentially there is a third set to be met - the contained-
in levels which could be different from the LDR standards and the cleanup levels but
which must be met so that MTRs are not triggered in land-based disposal units. For
further discussion, see the comment on approval of RMPs.) It's possible in such situations
for the LDR standard of 90% reduction capped by 10X UTS to be lower than the risk-
based cleanup standard. In these instances, just excavating the waste will trigger the LDR
requirements could still provide a significant disincentive to remove wastes from the unit
and an incentive to attempt to meet the cleanup levels while treating wastes in-situ.
However, with the strict applicability of the LDR standards being triggered by removal
from the land [see proposed °269.30 (a)], it would be difficult to meet a cleanup standard
for a unit without any Removal from the land, thus practically assuring the dual sets of
standards.

It is suggested that LDR treatment standards be capped by the cleanup standard for the site
(and that the cleanup standard also represent the contained-in level such that replacement
of the cleaned up media would not trigger MTRs). The cleanup standard should represent
the minimum threat level, which should enable capping the LDR treatment standard. This
is similar to the approach taken in the recently proposed HWIR for process waste. In that
rule, EPA proposed minimized threat levels which could be used as alternatives for
meeting the LDR standards when the LDR standards were below the exemption level for
RCRA wastes. These minimized threat levels were basically caps on the technology-
based LDR standards which were lower in some cases than the risk-based exemption
levels.

2. If a company undertakes an interim action to remove the immediate threats to the
environment by removing source material, it appears that Removal from the land may
occur, thus triggering the LDR requirements for anything removed from the land

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(including wastes placed into a remediation pile). Since interim actions are not designed
as final remedies, and often remove drums, sludges, etc. while proposing to leave
potentially contaminated soil in place for later cleanup, it is overly restrictive to trigger
LDR requirements for any remediation waste removed from the land. For instance, to
remove drums out of a unit, soils need to be removed and stockpiled (i.e.. placed into a
remediation pile) to reach the drums. It appears that the RMP could be used to facilitate
the action. However, it doesn't appear that there is sufficient flexibility in proposed
a269.30 to allow soils to be replaced without meeting LDR standards.

To remedy this situation, several alternatives exist:

• Alter the scope in Section 269.1 to indicate that actions that do not represent a
final remedy are not within the scope of Part 269.

• Alter the wording of Section 269.30 to indicate that treatment standards apply to
final remedies and not to interim remedies or interim actions.

» Alter Section 269.31 to allow a media treatment variance for interim remedies."
(35)

Response: The commenter raises two issues. First concern that the technology-based soil
treatment standards may, in some cases, prompt treatment beyond site-specific, risk-based cleanup
levels and will otherwise reduce flexibility during remediations; to remedy this concern the
commenter suggests that LDR treatment requirements be capped at site-specific, risk-based
cleanup levels. Second, concern that application of LDRs to contained soil managed during
interim actions will .be overly stringent in the context of a subsequent final remedy; to remedy this
concern the commenter suggests that interim actions be exempted from LDR treatment
requirements or granted treatment variances.

Regarding the suggestion that EPA allow site-specific, risk-based cleanup levels to cap LDR
treatment requirements, the Agency agrees that, in certain circumstances this is appropriate. The
Agency has provided an opportunity for a site-specific, risk-based treatment variance, which could
be used, on a site-specific basis to cap the technology-based treatment standards when it is
determined that threats to human health and the environment are minimized with less treatment
than the technology-based treatment standards would require. The Agency believes these
determinations are possible, because, during remediation experts and field personnel typically
gather detailed site-specific information on risks posed by specific hazardous constituents or
combinations of hazardous constituents, potential direct and indirect exposure routes, risk
pathways, and human and environmental receptors. Through application of this information
overseeing Agencies can, on a site-specific basis, eliminate many of the long-term uncertainties
associated with land disposal and, therefore, make appropriate risk-based decisions regarding the
extent of treatment needed to minimize short- and long-term threats. This so called "site-specific
minimize threat treatment variance" will be available to all contaminated soils. The treatment
variance is discussed in detail in the preamble to today's action.

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management units, are not affected by today's rulemaking and remain available. In addition, as the
commenter suggests, when appropriate. LDR treatment variances are available during interim
actions. The Agency is not persuaded that, even if a statutory basis existed for the distinction.
interim actions should be categorically exempted for LDR requirements. Simply put. such actions
can continue to involve land disposal of hazardous wastes ( i.e. the contaminated soils), and
categorically exempting such wastes from LDR requirements could fail to carry out the central
statutory object that threats posed by land disposal of hazardous wastes be minimized before land
disposal can occur.

• "p. 18785. col. 3 and 18786. col. 1 - EPA states that the prescriptive standards of
current prevention-oriented regulations under RCRA can create disincentives for
environmental cleanups. Therefore, one of the policy objectives of the proposed
HWIR-media rule is to modify existing RCRA Subtitle C requirements to create a
more flexible and common-sense regulatory system for management of
contaminated media.

DOE believes that in certain instances the proposed HWIR-media rule provisions may act
to hinder, rather than further, the above-stated policy objective. In particular, it is unclear
whether the proposed regulations would act to notably lessen the disincentives to cleanup
or provide significant relief from LDR treatment standards for excavated media. DOE is
mindful that EPA is proposing alternative LDR treatment standards for contaminated
media that are intended to reduce the burden of compliance with LDRs. Nevertheless,
DOE believes the continued applicability of LDR treatment standards to remediation
wastes will be a disincentive to cleanups involving excavation and treatment. Two
examples are provided below.

a. EPA explains in the preamble that LDR treatment standards will attach to certain
media unless a determination is made that the media no longer contain hazardous waste
(i.e., a contained-in determination is made) prior to removal of the media from the land [p.
18805. col. 1]. EPA proposes, however, to prohibit media exhibiting concentrations of
contaminants in excess of proposed Bright Line values from being eligible for contained-
in determinations. Further, the proposed rule gives responsible States and EPA Regions
discretion to set contaminant levels defining whether media no longer contain hazardous
waste at values lower than such Bright Line values.

The HWIR-media preamble does not discuss the relationship between acceptable levels
for making contained-in determinations and site-specific media cleanup standards. In fact.
EPA emphasizes that the Bright Line values identified in the proposal (which the Agency
views as generally acceptable levels for determining that media no longer contain
hazardous waste [p. 18795, col. 3]) are not designed as cleanup levels [p. 18789, col. 2].
DOE notes, however, that it would be difficult for a responsible regulatory agency to
explain why media that exceed site-specific cleanup levels could be said to no longer
contain hazardous waste. Therefore. DOE believes that the values for making contained-
in determinations will most often be set equal to site-specific media cleanup levels. This
being the case, very small volumes of media are likely to qualify for exemption from LDR
treatment standards as a result of contained-in determinations made prior to excavation.
Hence, it appears that most excavated media at remediation sites will be required not only
to meet site-specific media cleanup standards, but also to comply with LDR treatment

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requirements (or obtain a treatment variance) before being returned to the land. Further.
unless a "minimize threat" determination is made pursuant to RCRA '3004(m) regarding
the treatment applied, treated media (or media subject to a variance) will presumably be
required to be managed in a land disposal facility that meets 40 CFR Part 264 minimum
technological requirements (MTRs) [see Specific Comment V.D, item 2]. In such
situations. DOE submits that because of the applicability of the LDR treatment
requirements, a significant disincentive to remedies involving excavation remains. The
Department is mindful that EPA has proposed alternative LDR treatment standards for
contaminated media that are intended to reduce the burden of compliance in such
circumstances. Notwithstanding, it seems possible that the proposed alternative standards
for hazardous soils (i.e., 90% concentration reduction capped by 10 times the Universal
Treatment Standards) could be lower than the site-specific (risk-based) media cleanup
standards. As a result, even the proposed alternative LDR treatment standards may not
provide any notable relief to remove the disincentive created by LDR applicability itself.
To address these concerns (i.e.. if EPA decides not to adopt a final HWIR-media rule
based on an approach that would exempt remediation-generated media from RCRA
Subtitle C regulation, including LDR requirements). DOE suggests the following as a
possible way to address LDR requirements so as to provide sufficient relief to remove the
disincentive to excavation remedies created by LDR applicability. LDR treatment
standards for media could be capped at each site by the site-specific cleanup standards.
Also, the site-specific cleanup levels could be mandated as the site-specific "minimize
threat" levels, as well as the levels at which media should be determined to no longer
contain hazardous waste. In this way, one uniform set of standards would apply at each
site, and once the site-specific media cleanup standards were met, treated media could be
returned to the land without being managed in units requiring compliance with MTRs.

b. If a company undertakes an action to remove the immediate threats to the
environment by removing the source of contamination material (i.e., performs an interim
action), it appears that a removal from the land may occur in such an action, thus
triggering the LDR requirements for anything removed from the land (including wastes
placed into a remediation pile). Since interim actions are not designed as final remedies.
and often remove drums, sludges, etc. while proposing to leave potentially contaminated
soil in place for later cleanup, it seems overly restrictive to trigger LDR requirements for
any contaminated media removed from the land on an interim basis. For instance, just to
dig drums out of a unit, soils need to be removed and stockpiled (i.e., placed into a
remediation pile) to reach the drums. It appears from the way the proposed regulations are
structured, this would be done with Agency oversight, in most instances, and thus
would/could use the RMP to facilitate the action. However, it doesn't appear that there is
sufficient flexibility built into the proposed 40 CFR 269.30 to allow such soils to be
replaced on an interim basis without meeting LDR standards in these types of actions
(unless the excavated area associated with the interim action can itself be designated a
remediation pile).

To remedy this situation, several alternatives exist:

Modify the wording of proposed 40 CFR 264.554 (Remediation piles) to
specifically provide that an area where media have been excavated for the purpose
of completing an interim action could be designated as a remediation pile into

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which only those media excavated during the interim action could be replaced.
Such a remediation pile would be required to be managed in accordance with the
provisions of a RMP approved under the provisions of 40 CFR 269. Subpart D
(Remediation Management Plans) until a final remedy addressing the area has
been completed.

Modify the wording of proposed 40 CFR 269.30 to indicate that the LDR
treatment standards apply to final remedies but not to interim remedies or interim
actions. This is DOE's preferred alternative.

Modify proposed 40 CFR 269.31 to allow/strongly suggest that a media treatment
variance is appropriate for interim remedies and interim actions.

p. 18786. col. 2 — EPA states as its final policy objective that the regulations should
be easy to understand.

DOE observes that after EPA states its policy objective that the regulations should be easy
to understand, the next section of the preamble (i.e.. section IV. A, p. 18786. col. 3)
presents a somewhat confusing discussion of the applicability of the LDR program to both
hazardous and non-hazardous contaminated media. DOE suggests that a graphic diagram
be provided to visually show the decision tree for determining the correct application of
the LDR requirements to particular categories of contaminated media. This would assist
the regulated community in better understanding of the LDR applicability and issues when
attempting to determine the compliant path forward." (60)

Response: The commenter raises three issues. First, concern that the technology-based soil
treatment standards may, in some cases, prompt treatment beyond site-specific, risk-based cleanup
levels and will otherwise reduce flexibility during remediations; to remedy this concern the
commenter suggests that LDR treatment requirements be capped at site-specific, risk-based
cleanup levels. Second, concern that application of LDRs to contained soil managed during
interim actions will be overly stringent in the context of a subsequent final remedy; to remedy this
concern the commenter suggests that interim actions be exempted from LDR treatment
requirements or granted treatment variances. Third, concern that the regulations governing LDR
applicability are confusing and difficult to understand.

Regarding the suggestion that EPA allow site-specific, risk-based cleanup levels to cap LDR
treatment requirements, the Agency agrees that, in certain circumstances this is appropriate. The
Agency has provided an opportunity for a site-specific, risk-based treatment variance, which could
be used, on a site-specific basis to cap the technology-based treatment standards when it is
determined that threats to human health and the environment are minimized with less treatment
than the technology-based treatment standards would require. The Agency believes these
determinations are possible, because, during remediation experts and field personnel typically
gather detailed site-specific information on risks posed by specific hazardous constituents or
combinations of hazardous constituents, potential direct and indirect exposure routes, risk
pathways, and human and environmental receptors. Through application of this information
overseeing Agencies can. on a site-specific basis, eliminate many of the long-term uncertainties
associated with land disposal and. therefore, make appropriate risk-based decisions regarding the
extent of treatment needed to minimize short- and long-term threats. This so called "site-specific

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minimize threat treatment variance'" will be available to all contaminated soils, ihe treatment
variance is discussed in detail in the preamble to today's action.

Regarding the concern that application of the soil treatment standards during interim actions would
be inappropriate, the Agency notes that existing opportunities to manage remediation waste in a
way that doesn't trigger LDRs. such as the area of contamination policy and corrective action
management units, are not affected by today's rulemaking and remain available. In addition, as the
commenter suggests, when appropriate. LDR treatment variances are available during interim
actions. The Agency is not persuaded that, even if a statutory basis existed for the distinction.
interim actions should be categorically exempted for LDR requirements.

Regarding the complexity of decisions regarding LDR applicability. EPA shares many
commenter s concerns over complexities associated with application of LDRs to contaminated soil
— and remediation waste more generally. At this time, the Agency is not taking action on the
portions of the HWIR-Media proposal which would have provided opportunities for some or all
remediation waste to exit large portions of the RCRA Subtitle C system. As discussed in the
preamble to today's action, the Agency continues to believe that legislative action of the
application of RCRA Subtitle C regulations, especially LDRs. to remediation waste is needed. If
legislative action is forthcoming. EPA will likely re-examine application of LDRs to contaminated
soil — and remediation waste more generally ~ at that time. If there is no legislation. EPA may
choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to contaminated soil or other remediation wastes. In the meantime, EPA has revised
today's regulations to make it easier for generators to determine whether they have a duty to
comply with LDRs for contaminated soil. Whether or not a duty to comply with LDR applies to
any given contaminated soil can now be ascertained by applying information about the soil to
questions in an easier to read chart. EPA believes this clarification will assist generators in
complying with LDR treatment standards and will ensure that contaminated soils are treated
appropriately.

One commenter asks EPA to reaffirm that facilities may continue to undertake routine excavation
activities without being subject to Subtitle C.

• "At an active chemical manufacturing plant, contaminated media are frequently handled as
a result of routine excavation and construction work involving, among other things, curbs
and gutters, utilities, underground pipe, and new process construction. These activities
often require excavation of soil, placement of the soil next to the area of the excavation.
completion of the repair or installation work, and replacement of most, if not all, of the
soil back in the hole. When contaminated media are excavated and may contain
hazardous waste, it has been our practice to seek state concurrence in a protocol for
handling the contaminated soil. These protocols typically may involve placing a
polyethylene liner on the ground prior to creating the pile and placing a similar liner over
the pile as a cover at the end of the day.

It is important that EPA affirm that facilities may continue to undertake routine excavation
activities as described above without being subject to Subtitle C. These are common.
every day occurrences that should not be complicated and delayed by Subtitle C
standards." (82)
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Response: EPA confirms that the area of contamination policy, under which" individuals may
consolidate wastes within certain widely dispersed areas of contamination and conduct normal
earthmoving and grading activities is not affected by today's rulemaking. Additional information
on the area of contamination policy may be found in the EPA guidance memorandum. "Use of the
Area of Contamination (AOC) Concept During RCRA Cleanups." March 13. 1996. available in
the docket for today's rulemaking and electronically, over the Internet at
www.epa.gov\correctiveaction.

One commenter recommends that EPA define "removed from the land" to clarify that the Area of
Concern (AOC) concept remains valid and that this rules does not prevent soils from being
excavated and moved around within the AOC without triggering LDRs.

• "On pages 18786 and 18804 through 18805, EPA explains when the LDR requirements
will attach to media determined to contain hazardous waste. EPA proposes in §269.30 that
LDRs attach when media is "removed from the land".

DoD recommends that EPA define "removed from the land" to clarify that, with respect to
remediation wastes at CERCLA sites (as opposed to RCRA sites), the Area of Concern
(AOC) concept remains valid and that this rules does not prevent soils from being
excavated and moved around within the AOC without triggering LDRs. Maintenance of
the AOC concept is discussed on page 18839. middle column, second paragraph, but is
not reflected in 269. This issue will be particularly significant when addressing
management of investigation-derived waste (IDW). Media generated during sampling
activities at CERCLA sites should not have to meet LDRs prior to replacement provided
they never left the AOC.

Additionally, it is requested that "removed from the land" be defined as being "physically
removed from the ground and moved outside of the solid waste management unit or area
of contamination" such as to extend the AOC concept to RCRA sites as well as CERCLA
sites. This is needed because in order to make a convincing argument that media no longer
contains hazardous waste, it must be sampled. Unless defined otherwise, the act of
sampling removes waste from the land thereby attaching LDRs. Resultantly, even though
there is no physical difference between the unexcavated media and the IDW generated, the
unexcavated media may qualify for designation as non-hazardous contaminated media
thus avoiding LDRs, but LDRs would still attach to the IDW which was the basis for the
non-hazardous designation.

Defining "removed from the land" would facilitate ex-situ treatment and would result in
media being managed as outlined below:

LDRs would not attach unless waste is removed from the AOC/SWMU or placed
into a separate RCRA unit and redeposited back on site;

The Remediation Management Plan, as currently proposed, would still be used in
lieu of a permit to address the remediation: and

The proposed LDR treatment standards for media (90%/10 times the Universal
Treatment Standard) (UTS)) would apply whenever LDRs are applicable.

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If "removed from the land" is defined as mentioned above. CERCLA remedial action and
RCRA remedial actions would be conducted similarly except for permitting requirements.
and the goal of facilitating ex-situ treatment of RCRA wastes would be accomplished.

The remediation would be conducted as follows:

For on-site activities LDRs would not attach unless placed into a RCRA unit (thus
providing an incentive for ex situ treatment). If waste is treated in a RCRA unit,
however, most likely the technology should be capable to satisfying the LDR
treatment requirements anyway such that triggering of LDRs wouldn't be an issue.

For on-site activities which do not involve placement into a RCRA unit. LDRs
would not be triggered but waste would be treated to whatever cleanup standard is
protective for the site.

And finally, for off-site activities, the reduced LDR treatment standard of 90%
reduction or 10 times UTS would apply.

DoD also requests that EPA further clarify the attachment of LDRs to contaminated media
in terms of what type of data would be required as proof that the LDRs did or did not
apply. For example, how would EPA's binary approach apply to the following scenario: a
leaking UST holding spent perchloroethylene (F002) was determined to be the source of
contaminated soil at a site. During the characterization of the site, it is determined that soil
near the tank contain perchloroethylene above the bright line concentration. However, soil
further away from the UST contains perchloroethylene at levels below the proposed bright
line concentrations. Assume that the site is a large quantity generator and the UST
released the spent solvent after November 8, 1986. How would the LDRs apply to the
soils containing varying concentrations of perchloroethylene if the contaminated soils
were excavated for treatment and disposal? In addition, what type of data would be
required to prove when LDRs applied or did not?

Furthermore, if an approved CAMU existed at the site, would the owner or operator be
allowed to dispose of contaminated media (with perchloroethylene above the bright line
concentrations) in the existing CAMU without complying with applicable LDRs?" (97)

Response: EPA confirms that the area of contamination policy which allows individuals to
consolidate waste and conduct certain other activities, such as normal earthmoving and grading
activities, within widely dispersed areas of contamination, is not affected by today's rulemaking.
The Agency is not persuaded, however, that a definition of "removed from the land" is necessary
in this context. The Agency believes the area of contamination policy and its limitations are well
and clearly defined and that further regulatory language would not improve program
implementation. For more information on the area of contamination policy, commenters can see
55 FR 8758 - 8760. March 8, 1990 and EPA's recent guidance on the AOC policy, "Use of the
Area of Contamination (AOC) Concept During RCRA Cleanups." March 13, 1996. available in
the docket for today's rulemaking and electronically, over the Internet at
www.epa.gov\correctiveaction. The Agency notes that the area of contamination policy applies to
both RCRA and CERCLA sites.
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Regarding the hypothetical example of soil contaminated by leaks from a hazardous waste storage
tank, assuming that the untreated hazardous waste was the source of all the soil contamination.
LDRs automatically apply to the contaminated soil. As discussed in detail in the preamble to
today's final rule, this is because land disposal prohibitions attach at that point a hazardous waste
is generated and continue to apply until the point at which threats poised by land disposal of the
waste are minimized. Chemical Waste Management v. EPA. 976 F.2d at 13. 14 and 24.
Consequently, in the case of listed hazardous waste land disposed after the effective date of an
applicable land disposal prohibition (i.e., illegally land disposed or accidentally spilled), the
prohibition has already attached to the waste and continues to apply to any soil contaminated by
the waste.

Regarding corrective action management units. EPA confirms that corrective action management
units remain available for appropriate on-site management of hazardous remediation waste.
Compliance with otherwise applicable land disposal restrictions is not automatically required for
hazardous remediation waste -- including contaminated soils -- placed into an approved CAMU.

One commenter asks for clarification on whether confirmation sampling is required before
removal.

• "A related question is whether the LDR standards would apply to potentially hazardous
soils if they are not sampled and shown to be below contained out levels until after they
are removed but before additional treatment. The state's contained-out determination does
not require confirmation sampling before removal, whereas proposed 40 C.F.R.
269.30(a)(2) and (b) seem to require sampling (or at least evaluation) prior to removal."
(124)

Response: Sampling to determine whether any given volume of contaminated soil contains
hazardous waste or exhibits a characteristic of hazardous waste should be conducted when
contaminated soil is first generated. EPA recognizes that this may involve some excavation and
staging of soil in the area of contamination in order to facilitate representative sampling activities.
It is not necessary for the sampling and analysis to be completed before any contaminated soil
(except the initial sample volume) is removed from the land, provided the soil stays within the area
of contamination. Note that, not all management of contaminated soil is considered "generation"
for purposes of RCRA. For example, consolidating soil within an area of contaminated is not
considered "generation."

One commenter believes EPA should evaluate methods of eliminating routes and points of
exposure, in addition, to the reduction of toxicity by the method of treatment to LDR standards.

• "Under the proposed rule certain contaminated media, which does not include other
remediation wastes (e.g. existing sludges, debris), containing listed or characteristic
hazardous waste could be managed in Remediation Piles. Remediation piles are available
to temporarily store and treat hazardous contaminated media without triggering Land
Disposal Restriction or Minimum Technology Requirements provided that a Remediation
Management Plan has been approved by the agency having authority. The proposed rule
reminds the reader that LDRs may still attach to contaminated media containing hazardous
waste concentrations less than a specific constituent's bright-line concentration. The
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proposed rule appears to favor treatment \vithout any mention of removing pathways of
exposure.

The contaminated media, if properly managed (e.g. stabilized or contained) in a manner
which prevents or minimizes routes of exposure, should not be required to be treated
strictly due to an arbitrary' regulatory mandate which dictates treatment only because the
hazardous waste constituent exceeds a certain concentration. Risk is a function of toxicity
and exposure. P&U believes EPA should evaluate methods of eliminating routes and
points of exposure, in addition, to the reduction of toxicity by the method of treatment.
The merits of reducing or eliminating exposure should also be weighed in comparison to
treatment to reduce toxicity when reducing risk of all remediation wastes (e.g. existing
sludges, contaminated media).

The requirement to always treat hazardous contaminated media or other remediation waste
which attach LDRs appears arbitrary. P&U believes, in addition to the statutory LDR
treatment standard for "as-generated" wastes, that even the modified generic LDR
treatment standard may often be technically infeasible and cost-ineffective when compared
to stabilization initiatives that contain or institutionally control points or routes of exposure
of the remediation wastes. The modified generic LDR treatment standards require a
treatment method to reduce the concentration of hazardous waste constituent subject to
treatment by a minimum of 90%. The minimum treatment requirement for soil is capped
at ten times the Universal Treatment Standard. Even with the modified generic LDR
treatment standard, the only effective method of treatment for many remediation wastes
will be combustion. Currently the proposed Media Treatment Variance does not allow an
option for no treatment if threats of exposure are minimized or eliminated." (95)

Response: The commenter raises two issues: (1) application of LDRs to remediation waste is
arbitrary and will unnecessarily delay and add cost to cleanups and (2) that treatment decisions
should consider exposure controls.

Regarding the application of LDRs to remediation waste, including contaminated soil, the Agency
shares concerns that application of LDRs to hazardous remediation waste, including contaminated
soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, the current statute seems to compel application of LDRs to contaminated
media, including soils. See RCRA Sections 3004(d)(3) and (d)(3). The Agency continues to
believe that legislative action is needed to address application of LDRs to hazardous remediation
waste, including contaminated soil. If legislation is forthcoming, EPA will likely re-examine
application of LDRs to hazardous remediation waste, including contaminated soil. If there is no
legislation, EPA may choose to take additional regulatory action, which may include a re-
examination of the application of LDRs to contaminated soils. In the meantime, EPA believes the
alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current
practice of applying the treatment standards developed for pure industrial hazardous waste.
Furthermore, to address specific concerns that the proposed regulations governing LDR
applicability for contaminated soil were too difficult to understand or apply, EPA has revised the
final regulations to make it easier for generators to determine whether they have a duty to comply
with LDRs for contaminated soil. Whether or not a duty to comply with LDRs applies to any
given contaminated soil can now be ascertained by applying information about the soil in question

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to an easier to read chart. EPA believes this clarification will assist generators in complying with
LDR treatment standards and will ensure that contaminated soils are treated appropriately.

Regarding the consideration of exposure controls, consistent with the rest of the land disposal
restriction program, decisions about LDR compliance for contaminated soil cannot be based on the
potential safety of land disposal units or engineered structure such as liners, caps, slurry walls or
any other practice occurring after land disposal. The D.C. Circuit's holding in the American
Petroleum Inst. case in 906 F. 2d (among other sources) stands for this proposition. The Agency
notes that, since LDRs apply only to prohibited hazardous wastes (or contaminated soil) that are
land disposed, it is unlikely that remedies which rely entirely on capping or containment in place
would trigger a duty to comply with LDRs.

• "The Director should have the discretion to specify less stringent as well as more stringent
treatment and management standards for wastes above the bright line." (108)

Response: EPA is not. at this time, taking action on the portions of the HWIR-Media proposal that
would have established a "bright line" or given EPA and authorized states the discretion to specify
more stringent LDR treatment standards for contaminated soil with constituent concentrations that
are above bright line values.

1.B.3 "RCRA Lite" Treatment Standards are Arbitrary and Capricious and
Create Uncertainty

• "EPA'S "RCRA-LITE" LDR TREATMENT STANDARDS FOR HAZARDOUS
CONTAMINATED MEDIA ARE ARBITRARY AND CAPRICIOUS AND SHOULD
BE REPLACED WITH RISK-BASED LDRs

As alternative treatment standards for hazardous contaminated media, EPA is proposing
that the media be treated to either (1) remove 90% of the hazardous constituent
concentration: or (2) achieve treatment levels of 10 x UTS. 61 Fed. Reg. 18806. EPA has
developed this standard to give some relief from the stringent LDRs that would apply
absent EPA's initiative. These RCRA-lite standards will not achieve a useful purpose as
proposed. Beazer believes that the requirement to remove 90% of the hazardous
constituent concentration or to reach 10 x UTS. whichever is higher, will not provide any
relief to generators of hazardous media, especially media containing PAHs. With regard
to the first alternative, Beazer's experience and research has shown that 90% reductions in
constituents have generally not been achieved in the short-term. Under the second
alternative, EPA is relying upon the UTS developed for the treatment of process wastes
and multiplying those UTS by a factor of 10 to compensate for the inherent difficulty in
treating media, without providing any rationale for how it selected this multiplier. Beazer
believes that using a multiplier of 10 results in treatment levels that are overly
conservative and that will not in many cases be achieved in the field using any technology
but incineration. Indeed, it is Beazers experience that a factor of 10 will not be adequate
to accommodate the difficulties inherent in treating impacted soils. Beazer has repeatedly
advised EPA that impacted soils typically exhibit chemical and physical properties which
are markedly different than as-generated process wastes. For example, soils are less
homogeneous in particle size distribution, moisture content, Ph and other physical and
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chemical characteristics than are process wastes. Soils also typically contain significantly
lower constituent concentrations. A factor of 10 will not compensate for these differences.;

It should be remembered that the LTS were derived solely from technological
performance standards for process wastes. 59 Fed. Reg. 48041 (September 19. 1994). Not
only do the UTS not consider technological performance standards for media, the UTS do
not consider the reduced risk associated with the disposal of these constituents in Subtitle
C landfills or landfills at RCRA corrective action sites. Even though EPA has consistently
expressed its preference for risk-based levels that represent minimized threat levels. 58
Fed. Reg. 48095, with the exception of a handful of risk-based LDRs proposed under the
HWIR-Process rule. EPA has routinely proposed technology-based standards as UTS, the
levels of which far exceed the standard set by the statute for LDRs (i.e., to "minimize
threats"). 42 U.S.C. 6924(m)(l). Had EPA considered the potential risk to the
environment from the disposal of hazardous waste in a regulated landfill, the resultant
UTS levels would have been much higher.

Finally. Beazer's experience shows that by setting the proposed hazardous media treatment
levels at the UTS multiplied by a factor of 10. EPA will arbitrarily limit the use of
innovative technologies even though it has been shown that acceptable risks exist at far
greater constituent concentrations.

RECOMMENDATION:

Beazer recommends that the Agency utilize a risk-based approach in setting treatment
standards for above the "Bright Line" hazardous mediae jn aimost all c3565- EPA or me
state agency will be utilizing such an approach to set cleanup levels at the site. Any effort
by EPA to establish treatment standards which are lower than the risk-based cleanup
levels would be arbitrary and would result in needless expense and effort with no
corresponding environmental benefit. Beazer suggests that EPA omit § 269.30(f) and
amend § 269.30(e) to read:

269.30(e) For remediation wastes, treatment must achieve site-specific risk-based
levels established with concurrence of the overseeing agency;" (34)

Response: As stated in today's preamble. EPA does not believe that the soil treatment standards
are arbitrary or capricious. Furthermore, EPA strongly believes that the soil treatment standards
can be reliably achieved using: biological treatment, chemical extraction, dechlorination. soil
washing, stabilization, thermal desorption, or combinations of two or more of these technologies.
(EPA 1998a, EPA 1998d.) As noted in the Phase IV final rule preamble, EPA has based the
i
:t is notewoarv '.not EPA has exoiic:;:;/ recoqmzea '.net the 'Q :< UTS standarc 'or PAHs is inaoorccricte. 6;
-~ed. Reg. 18811. Eeazer agrees with EFA :na further oe;ieves ret '.^e 90% reduction is only achievccie "'
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treatment standard on non-combustion technologies. Of course, since soil treatment is generally
matrix dependent, the exact treatment technology which might be applied to any given
contaminated soil will depend on the specific properties of the soil and the hazardous constituents
of concern. (EPA1998a. EPA 1998d. EPA 1994. EPA 1993a.)

With respect to the SDB. EPA collected over 6.000 paired data points describing
the treatment of various hazardous soils. In response to an outgrwoth
of the comments. EPA has retained 2.143 paired non-combustion
data points to set today's treatment standards. EPA believes that these 2.143
paired non-combustion data points are reasonably sufficient to adequately
describe the treatment of metal, organics. and multiple metal and organic
contaminants that are frequently found at different type of sites, including both
Superfund and RCRA sites. (EPA1998a, EPA 1998b. EPA 1998c. EPA~1998d.
and EPA 1994.) In addition, these include hard-to-treat constituents where PCPs
or PAHs found in high concentrations at wood preserving sites, which were
treated to achieve today's standards using non-combustible technologies. For
example, see corroborative data in pages 3-11, 3-12. 3-19. 3-21. and 3-41 in EPA
1998a. In addition. SDB has treatment data on soils with varying textures
including top soils, silty/loam soils, and clay soils. (EPA1998a) Furthermore.
EPA has a number of bench and pilot studies on the treatment of contaminated
soils from wood preserving, petroleum refining, and electroplating sites, which
contain a wide range of constituents such as polynuclear aromatic, phenolic.
chlorinated organics. spent solvents, creosote, and metals. (EPA 1998a) These
constituents are found at other RCRA and Superfund sites. (EPA 1997a)

As a result, the pooled bench, pilot, and full scale non-combustion data in the
SDB can be reasonably expected to depict what the various treatment technologies
can achieve for other hazardous soils managed under CERCLA and RCRA. Non-
combustion techno-logies will behave better on a given range or class of organic
and metal constituents and a range of soil textures or soil characteristics as
demonstrated in the SDB and the general literature. (EPA 1998a) More recent.
full-scale data examined by the Agency corroborates our conclusion that the soil
treatment standards can be reliably achieved using a variety of non-incineration
remediation technologies including wood preserving sites." (EPA 1998a. EPA
1998d, EPA 1997a.) In particular. EPA has determined that ex-situ applications
of non-combustion technologies are more amenable to optimiazation and that
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ
remediation studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many
instances, also met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration or"
hazardous contaminants prior to disposal. See 1997 studies: (11 Remediation Case Studies: Bioremediation and Vitrification.
July 1997. EPA 542-R-97-008 or PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ
Technologies. July 1997. EPA 542-R-97-009 or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor
Extraction. September 1997. EPA-542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-
001. March 1995: (2) Remedia-tion Case Studies: Thermal Desorotion. Soil Washing, and In situ Vitrification. EPA- 542-R-95-
005 or NTIS: PB95-182945. March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS:
PB95-182937. March 1995: (4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911.
March 1995: and (51 Remediation Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March
1995.

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hazardous soils can be submitted to physical/ chemical separa-tion processes that
enable soil homogenization. (EPA 1998d and EPA 1994.)

EPA concurs with commenter that soils are different from as generated wastes and
that soil deserve a separate set of treatment standards. This is one of the key
premises behind today's final rule.

Today's treatment standards are not based on the performance of combustion
techno-logies, nor is EPA relying on BOAT protocols. The EPA has examined a
broad spectrum of non-combustion treatment technologies (9 non-combustion
technology clusters) demonstrated to remediate hazardous soils. (See EPA 1998a,
EPA 1998c. and EPA 1998d). Also, EPA has been persuaded by arguments that
a departure from the BOAT model for establishing LDR treatment standards is
necessary to allow greater use of non- combustion technologies and EPA is doing
so in today's Phase IV final rule. Also, the commenter is correct that the
treatment standards do not consider risk reduction occurring in land disposal
units. To do so would be illegal. See API v. EPA. 906 F.2d , 726. 734- 36
holding that section 3004 (m) requires that threats be minimized before land
disposal occurs. This issue is long-settled and is not repopened here. The EPA
has examined the available non-combustion treatment performance data within the
context of what treat-ment levels of performance are demonstrated for as difficult-
to-treat clusters of chemical family analytes or chemical treatability groups by the
various technology studies in the soil data base (EPA 1998a, EPA 1998d. EPA
1993a.) For instance, the treatment of an admixture of organic constituents in
hazardous soils via air/steam stripping is often an appropriate treatment for
volatile hazardous constituents. The technology often attains an inferior
performance, however, with regard to the removal of many semi-volatile and non-
volatile organics (EPA1998a). However. EPA believes that by adding another
appropriate treatment step to the steam stripped soils, the concentrations of
semivolatile and non- semivolatile organics can attain the treatment limits. (EPA
1998a)

However, if a soil treatment standard proves unachievable for a particular soil
matrix using one technology on which the standard is based, and that
one technology or appropriate technology train is well designed and operated, then
a treatment variance could be issued under the unachievable prong of
the 40 CFR §268.44 (h). There is no requirement that the soil be
treated bv combustion to achieve the treatment standard.
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Regarding the commenters recommendation concerning setting treatment
standards for above the "Bright Line", the Agency, after further consideration and
review of comments, has decided to not establish a "bright line" to distinguish
between higher- and lower-risk media. The Agency believes that because the
outcome of a site-specific, risk-based minimize threat variance - alternative, site-
specific LDR treatment standard based on risk - will be the same regardless of the
initial concentrations of hazardous constituents. If, in the future, the Agency takes
action to establish a bright line, it will address the relationship of a bright line to
site-specific minimize threat variances.

The commenter is in error that EPA has stated in the HWIR media proposal that
EPA was uncertain that non-combustion technologies were able to attain the
proposed treatment limits for hazardous soil. In the 61 FR 18807/3. preamble,
EPA stated the following:

"...Thus, the Agency believes that technology-based treatment standards
for contaminated soils should not rely exclusively on incineration or HTMR
and will be appropriate. (See 55 FR 8666. 8760-8761. (Marach 9. 1990) and
58 FR 48092. 48125. (September 14. 1993)). While the Agency believes that
soil is. in most cases, most appropriately treated using non-combustion
technologies other than combustion; data gathered for the Phase II Soil
proposal do not demonstrate conclusively that the Universal Treatment
Standards can be met using technologies other than combustion;
therefore. EPA is proposing the alternative soil treatment standards
discussed today at treatment levels somewhat above UTS levels."

This statement clearly states that EPA was uncertain if the available teatment
performance data on hazardous soils treated by non-combustion could be
interpreted to support a decision that the existing combustion based treatment limits (for
nonwastewaters forms) in the 40 CFR section 268.48 can be met by non-
combustion technologies.

References:

EPA 1998a. Soil Data Analvsis:Analvsis of Treatabilitv Data for Contaminated Soil Treatment
Technologies. Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFFF)

EPA 1998b, memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic
Functional Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFFF.)
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EPA 1998d. Amemorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998. from Jose E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFFF.)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of
Wood Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA7 625/R-97/009)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

Regarding application of LDRs to contaminated soil more generally, the Agency shares concerns
that application of LDRs to hazardous remediation waste, including contaminated soil, might
prove overly complex or create impediments to efficient and aggressive remedial actions.
However, the current statute seems to compel application of LDRs to contaminated media.
including soils. See RCRA Sections 3004(d)(3) and (d)(3). The Agency continues to believe that
legislative action is needed to address application of LDRs to hazardous remediation waste,
including contaminated soil. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including contaminated soil. If there is no legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the
application of LDRs to contaminated soils. In the meantime, EPA believes the alternative LDR
treatment standards for contaminated soil promulgated today, including the site-specific, risk-
based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste. Furthermore, to
address specific concerns that the proposed regulations governing LDR applicability for
contaminated soil were too difficult to understand or apply, EPA has revised the final regulations
to make it easier for generators to determine whether they have a duty to comply with LDRs for
contaminated soil. Whether or not a duty to comply with LDRs applies to any given contaminated
soil can now be ascertained by applying information about the soil in question to an easier to read
chart. EPA believes this clarification will assist generators in complying with LDR treatment
standards and will ensure that contaminated soils are treated appropriately.

In addition, as noted in the preamble, technology-based standards have the virtue of providing an
objective measure of performance and thus removing as much of the usual uncertainty associated
with predictive decisions regarding protectiveness of land disposal. Notwithstanding this
comment. EPA sees nothing that makes this logic inapplicable to contaminated soils.

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nationally applicable treatmenr standards, including standards tailored for contaminated soil.
Among other things, a national standard assures a basic measure of consistency in determining the
level of performance at which a technology-based standard can be found to minimize threats posed
by land disposal. However, because EPA realizes that technology-based nationally applicable
treatment standards, because of site- and waste-specific characteristics, are sometimes not
achievable.or are inappropriate. EPA has long provided for variances under these circumstances.
In addition, because the Agency believes that, during remediation, EPA and authorized states are
in the position to make site-specific risk-based minimize threat determinations, the Agency is also
providing a variance, for contaminated soils if, on a case-by-case basis, it is determined that the
technology-based treatment standard would require treatment beyond the point at which threats are
minimized, as discussed above and in the preamble to today's rule.

Regarding the suggestion that EPA based LDR treatment standards, in part, on consideration of
the "potential risk to the environment from the disposal of hazardous waste in a regulated landfill."
and the suggestion that this would result in higher universal treatment standards, the Agency
believes the law on consideration of post-land-disposal controls is clear. The law, of course, is that
threats must be minimized before land disposal occurs. API, 906 F.2d 726 (D.C. Cir. 1990V
Relying on engineered barriers to assure safety of land disposal perpetuates the very inherent
uncertainties that led Congress to adopt the pretreatment feature of the land ban.

EPA. unfortunately, has not had time to carefully evaluate new data submitted by this commenter.
This data was requested in November 1997 and received on March 13, 1998, less than one month
before the soil treatment standards were scheduled to be promulgated. The Agency continues to
emphasize that it believes, based on analysis of data in the record for this rulemaking, that the soil
treatment standards can be routinely achieved in contaminated soils, including hard to treat soils.
using non-combustion technologies. In situations where a well-designed, well-operated
application of one of the model technologies on which the soil treatment standards are based fails
to achieve the standards, a treatment variance is available. See 40 CFR 268.44(h).

• "Under the proposed rule, if the overseeing agency determines that the 90 percent or 10
times the UTS treatment standards do not minimize threats, it can specify even more
stringent soil treatment standards. There is absolutely no floor limiting the level at which
these alternative LDR requirements are set. which is a significant barrier to regulated
entities initiating cleanup. Further, if these requirements are not met. the regulated entity
must re-treat the waste, which can be extremely expensive for the marginal gain in
environmental protectiveness.

For example, a pilot test may indicate that a technology can reduce contaminants in
wastes at a remediation site to 10 times UTS. However, when the remedy is applied on
a full scale, laboratory analysis may show that the remedy is reducing the wastes to
only 11 times UTS. In this case, would the owner/operator be required to re-treat these
wastes?. Alternatively, but even more troubling, what happens if the treated wastes are not
uniform, with some treated wastes above 10 times UTS. and some at or below 10 times
UTS? In this scenario, the regulator and the regulated entity must again complete the
tedious, resource-intensive exercise of segregating wastes into different classifications.
much as described in Section IV.C.I of these comments.
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Although it is true that EPA may grant treatment variances in such instances, or where a
waste is below the Bright Line but still "contains" hazardous constituents, reaulated
entities should not be subject to the uncertainty of not knowing whether they will be able
to gain a variance after going to great extremes to treat their waste. Further, it is unclear
what wastes will be eligible for treatment variances, and what the variance will be based
on -concentration of constituents or other factors? There is no rational relation between
such a treatment standard and potential risks being addressed at sites. Therefore. EPA
must provide flexibility in situations where a good-faith effort to attain the treatment
standard falls a bit short so that additional costly treatment for a marginal reduction in
concentrations is not required." (39)

Response: EPA is not. at this time, taking action on the portions of the HWTR-Media proposal that
would have established a "bright line" or given EPA and authorized states the discretion to specify
more stringent LDR treatment standards for contaminated soil with constituent concentrations that
are above bright line values.

The also commenter expresses concern that, in some cases, treatment technologies will not
perform as anticipated and suggests that EPA provided flexibility in situations where a good-faith
effort to attain the soil treatment standard falls a bit short. EPA agrees and believes this flexibility
is already provided through the treatment variance process. In situations where a well-designed.
well-operated application of one of the model technologies on which the soil treatment standards
was based was applied and. nonetheless, the soil treatment standard not achieved, the generator
would be eligible for a variance based on the finding that the technology-based treatment standard
was unachieveable in that particular soil. See 40 CFR 268.44(h). While the commenter seems to
express some discomfort with the treatment variance process, EPA is not persuaded that another
approach is needed. As discussed in the preamble to today's final rule, the treatment variance
process is flexible and can easily be integrated into remedial activities. With regard to the
commenter's concern regarding overly stringent technology-based standards, the final standard
provides for a site-specific risk-based variance in cases where a treatment standard is more
stringent than the level at which threats to human health and the environment are minimized.

1.B.4 Bright Line Constituents do Not Equal Constituents Subject to Treatment

Several commenters argue that "Bright Line constituents" are not equivalent to "constituents
subject to treatment" under LDRs. Some argue that LDRs should only apply to constituents
with concentrations greater than the Bright Line.

• "As proposed, the LDRs would apply to contaminated media (whether it is above or below
the bright line) if:

• The hazardous waste which contaminates the media was land-disposed after the effective
date of the applicable land disposal prohibition for that waste, or

• The wastes were land-disposed before the effective date of applicable land disposal
prohibition. In this case. LDRs would attach to the media when the media are removed
from the land, unless the media have been determined not to contain hazardous waste
before removal.
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To determine applicability of the LDR provisions to contaminated media under the new
HWIR-Media Rule proposal, an owner/operator or agency would need to know:

• The origin of the material contaminating the media:

• The date(s) the material was placed on the land relative to applicable land disposal
restrictions (before or after the effective dates); and

• Whether the media still contain hazardous waste (i.e.. whether there has been a
"contained-in" decision).

Although the proposed rule provides some assumptions that can be used in the absence of
this data, the burden of investigation of historic practices and the associated lack of clear
regulatory requirements during such an investigation increase regulatory complexity
without a corresponding increase in protection of human health or the environment. From
a common-sense standpoint, the date of disposal of a waste in media (before or after the
LDR effective date) has little to do with whether or not a remedial technology will be
protective. Placing this additional investigative burden and regulatory complexity on
owners/operators and the implementing agencies diverts resources from real cleanup
efforts.

Another regulatory complexity with little corresponding protective value is the fact that
LDRs could continue to be applicable to media even when all constituents are below the
bright line and the media has been determined to no longer "contain" hazardous waste.
This would occur when waste was placed on the land after the effective date of the LDRs
or when media were actively managed before the "contained-in" decision was made.
Although these wastes may be subject to reduced LDR treatment standards if a treatment
variance was granted, there would still be a burden on the site owners/operators and the
implementing agency to go through a detailed regulatory assessment for each constituent
to determine applicability of the LDR requirements, before such a variance is granted.

The bright line constituents and the constituents subject to treatment under the LDRs are
different. Since criteria (and even procedures) for this determination are not yet well-
established. EPA cannot find that this level will minimize threats; EPA has established a
risk-based variance in final rule which could be combined with contained in. however
although these wastes may be subject to reduced LDR treatment standards if a treatment
variance was granted, there would still be a burden on the site owners/operators and the
implementing agency to go through a detailed regulatory assessment for each constituent
to determine applicability of the LDR requirements, before such a variance is granted.

The bright line constituents and the constituents subject to treatment under the LDRs are
different. Contaminated media with at least one constituent concentration over the bright
line would be ineligible for an exemption from hazardous waste management
requirements. That media would then be subject to requirements for hazardous
contaminated media including the LDR treatment requirements for constituents with
concentrations above and below the bright line. Again, this approach unrealistically
complicates the process of determining which regulatory requirements apply to
contaminated media." (33)

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Response: The commenter raises four issues: (1) determining whether LDRs apply to any given
contaminated soil is too complicated: (2) the date of placement of contaminating waste should not
bear on whether LDRs apply: (3) it will be too onerous and complicated to obtain treatment
variances for soil that has been determined no longer to contain hazardous waste but is still subject
to LDRs: and (4) it is unreasonable and too difficult to implement an approach where "bright line"
constituents and constituents subject to treatment are different.

Regarding application of LDRs to contaminated soil, the Agency shares concerns that application
of LDRs to hazardous remediation waste, including contaminated soil, might prove overly
complex or create impediments to efficient and aggressive remedial actions. However, the current
statute seems to compel application of LDRs to contaminated media, including soils. See RCRA
Sections 3004(d)(3) and (d)(3). The Agency continues to believe that legislative action is needed
to address application of LDRs to hazardous remediation waste, including contaminated soil. If
legislation is forthcoming, EPA will likely re-examine application of LDRs to hazardous
remediation waste, including contaminated soil. If there is no legislation, EPA may choose to take
additional regulatory action, which may include a re-examination of the application of LDRs to
contaminated soils. In the meantime. EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste. Furthermore, to address specific
concerns that the proposed regulations governing LDR applicability for contaminated soil were too
difficult to understand or apply, EPA has revised the final regulations to make it easier for
generators to determine whether they have a duty to comply with LDRs for contaminated soil.
Whether or not a duty to comply with LDRs applies to any given contaminated soil can now be
ascertained by applying information about the soil in question to an easier to read chart. EPA
believes this clarification will assist generators in complying with LDR treatment standards and
will ensure that contaminated soils are treated appropriately.

Regarding the connection between time of hazardous waste placement and land disposal restriction
treatment requirements, the Agency disagrees with the commenters assertion that the two are not
related. As discussed in detail in the HWIR-Media proposal and in the preamble to today's
Action, in situations where untreated prohibited listed hazardous waste is placed after the effective
date of the applicable land disposal prohibition (i.e.. often illegally placed), the duty to comply
with LDRs that was attached to the listed waste continues to apply to soil contaminated with the
waste, regardless of whether the soil is determined not to contain hazardous waste.. The Agency
believes this reading is compelled by the Chem Waste court which found that a duty to comply
with LDRs attaches to hazardous waste when it is first generated and elimination of the regulatory
indicia of "hazardousness" does not, necessarily, fulfil RCRA Section 3004(m) requirement that
threats to human health and the environment be minimized before land disposal can occur. This
means, once LDRs attach to any given hazardous waste (or to contaminated soil that is initially
determined to contain hazardous waste or to exhibit a characteristic of hazardous waste), the LDR
treatment standards, or an alternative treatment standard approved through a variance process,
must be met before the waste (or soil) can be land disposed. See Chemical Waste Management v.
EPA. 976 F.2d 2, 22 (D.C. Cir 1992), cert, denied. 113 S.Ct. 1961 (1993).

Regarding LDR treatment variances, EPA is not, at this time, persuaded that they will be too
onerous or complicated to obtain for a number of reasons. First. EPA believes most individuals
who manage hazardous contaminated soil will appropriately achieve the soil treatments standards

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using commonly employed, non-combustion, remedial technologies and thus no: need or desire a
variance. Second. LDR treatment variances under 268.44(h) may be approved using non-
rulemaking procedures, this means they can be combined with any of the number of approvals that
are typically needed during a cleanup action. For example, a site-specific treatment variance could
be approved in concert with a particular remedy. EPA believes this would be especially
appropriate, and efficient, when the alternative LDR treatment standards established through a
variance is at the same concentrations as site-specific, risk-based cleanup levels. The Agency
believes that, since site-specific LDR treatment variances can be approved using non-rulemaking
procedures, there will be ample opportunity (and flexibility) to integrate their approval with other
cleanup processes. Third, in situations where an individual believed that applying for a site-
specific variance would be overly "time consuming, and expensive" they would be under no
obligation to make an application. Guidance on the process used to apply for and review site-
specific LDR treatment variances is provided in the January 8, 1997 EPA guidance memorandum
"Use of Site-Specific Land Disposal Restriction Treatability Variances Under 40 CFR 264.44(h)
During Cleanups."

Regarding the relationship of constituents subject to treatment to the "bright line." EPA is not. at
this time, taking action on the portion of the HWIR-Media proposal that would have established a
"bright line" to distinguish between higher- and lower-risk contaminated media, including
contaminated soil. This eliminates many of the ambiguities raised by the commenter. The soil
treatment standards promulgated today will apply to all hazardous contaminated soil and will
require treatment for all underlying hazardous constituents that are reasonably expected to be
present when such constituents are found at initial concentrations greater than ten times the
universal treatment standard. EPA believes using the lOxUTS limit as the indicator of when
treatment is required is reasonable given that it can be easily measured; if constituent
concentrations are below lOxUTS, soil would be in compliance with the soil treatment standards,
so no treatment would be necessary to comply with LDRs. The Agency believes it is necessary to
require treatment for all underlying hazardous constituents reasonably expected to be present, as
discussed in the preamble, to conform with the opinion of the D.C. Circuit in Chemical Waste
Management v. EPA. If, in the future, EPA takes action to establish a bright line, EPA will
address concerns regarding the relationship of the bright line to the new soil treatment standards.
as necessary, at that time.

• "Similarly, EPA proposes in the HWIR Media Rule that media contaminated above the
Bright Line be treated, not only for the constituent exceeding the Bright Line standard, but
to the LDR treatment standards for all other hazardous constituents derived from the
hazardous waste source, a requirement EPA was careful not to impose upon the CERCLA
program, whether or not individual constituents exceed a Bright Line level or are present
at which poses any human health or environmental risk at all. In the case of soil, EPA
states. "For contaminated soil, treatment would be required for each constituent subject to
treatment with concentrations greater than 10 times the Universal Treatment Standard. "
This results in the imposition of a significantly stricter treatment standard for individual
constituents than the standard required for the primary constituent of concern, even when
incidental constituents are present at levels well below any site-specific human health or
environmental risk." (113)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated

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media, including contaminated soil. This eliminates many of the ambiguities raised by the
commenter. The soil treatment standards promulgated today will apply to all hazardous
contaminated soil and will require treatment for all underlying hazardous constituents that are
reasonably expected to be present when such constituents are found at initial concentrations
greater than ten times the universal treatment standard. EPA believes using the lOxUTS limit as
the indicator of when treatment is required is reasonable given that it can be easily measured: if
constituent concentrations are below lOxUTS, soil would be in compliance with the soil treatment
standards, so no treatment would be necessary to comply with LDRs. The Agency believes it is
necessary to require treatment for all underlying hazardous constituents reasonably expected to be
present, as discussed in the preamble, to conform with the opinion of the D.C. Circuit in Chemical
Waste Management v. EPA. If, in the future. EPA takes action to establish a bright line. EPA will
address concerns regarding the relationship of the bright line to the new soil treatment standards.
as necessary, at that time.

• "Another confusing aspect to this proposed regulation relates to the difference between
"Bright Line constituents" and "constituents subject to treatment". According to the
proposal.

"For contaminated soil, treatment would be required for each constituent subject
to treatment with concentrations greater than 10 times the UTS....

...the Bright Line does not define the applicability of LDR treatment
requirements or the constituents subject to treatment in media subject to
LDRs. Contaminated environmental media that contains one or more
hazardous constituents at greater than Bright Line concentrations would
be ineligible for a contained-in decision and would become subject to the
requirements for hazardous contaminated media, including LDR
treatment requirements. Once subject to LDR treatment requirements.
contaminated media would have to be treated to the generic.
technology-based treatment standards for all constituents subject to
treatment, including those below the Bright Line. (61 FR 18809)"

Without conducting an exhaustive comparison, it appears that a significant proportion of
the Bright Line concentrations are greater than the UTS by at least a factor of 100. Thus.
many contaminants in soils with concentrations significantly below Bright Line values will
probably be required to be treated to meet the requirements set forth in the proposed rule.
These requirements could necessitate the use of multiple treatment technologies to achieve
treatment standards for each constituent subject to treatment. For example, soil with lead
concentrations exceeding the Bright Line concentration and volatile organic compound
concentrations below the Bright Line but above 10 times the UTS, would need to be
treated for both lead and volatiles. Solidification would address the lead component but
not the volatiles; bioremediation, thermal treatment or air stripping would need to
considered to treat the volatile component. Such a dual treatment strategy would greatly
increase the remediation costs. In another example, a soil containing lead and volatiles in
concentrations below Bright Line concentrations but above 10 times the UTS would not
necessarily require treatment using the alternative LDR standards. It is inconsistent to
require treatment of volatiles in the first example but not in the second example. Even
though the Bright Line concentrations were developed to identify highly contaminated soil

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requiring treatment, the proposed rule as written, severely limits the ability to use these
concentrations in any meaningful manner. The proposed rule would be greatly simplified
and remediation costs would be reduced without adversely impacting health or the
environment if the constituents subject to treatment are those constituents that have initial
concentrations above bright line concentrations." (40)

Response: EPA is not. at this time, taxing action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. This eliminates many of the ambiguities raised by the
commenter. The soil treatment standards promulgated today will apply to all hazardous
contaminated soil and will require treatment for all underlying hazardous constituents that are
reasonably expected to be present when such constituents are found at initial concentrations
greater than ten times the universal treatment standard. EPA believes using the lOxUTS limit as
the indicator of when treatment is required is reasonable given that it can be easily measured: if
constituent concentrations are below i JxUTS. soil would be in compliance with the soil treatment
standards, so no treatment would be necessary to comply with LDRs. The Agency believes it is
necessary to require treatment for all underlying hazardous constituents reasonably expected to be
present, as discussed in the preamble. :o conform with the opinion of the D.C. Circuit in Chemical
Waste Management v. EPA. If. in the future. EPA takes action to establish a bright line. EPA will
address concerns regarding the relationship of the bright line to the new soil treatment standards,
as necessary, at that time. EPA also does not consider it per se unreasonable that treatment might
require one technology to treat metals and another to treat organic constituents. Both types of
constituents, of course, can be hazardous. A per se rule that only one type of treatment be
conducted would not comport with the requirement that threats posed by all hazardous constituents
be minimized. The Agency notes that, in the situation where a treatment train, as discussed in the
comment, would be necessary to achieve the soil treatment standards, the generator may be eligible
for an LDR treatment variance based on an argument that the technology-based national treatment
standard is environmentally inappropriate. See 40 CFR 268.44(h). For example, as noted in the
Dec. 5 treatment variance rule, requiring treatment of wastes with low levels of non-volatile
organic constituents whose mobility is further reduced as a result of treatment for metals would
potentially be inappropriate.

• "EPA solicited comment regarding whether to make all constituents present in the
contaminated media above UTS levels (or above 10 x UTS levels for soils) subject to
treatment. 61 Fed. Reg. 18809 3. CMA emphatically disagrees with this suggestion.
Again, this would require treatment of an excessive number of constituents and thus
would discourage, rather than promote remediation. It would also waste innumerable
analytic resources if media must be analyzed for the presence of all possible constituents."
(112)

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is the type of circumstance addressed in the Chemical Waste opinion, the Agency is persuaded that
it is prudent to apply the logic of the Chemical Waste opinion and require treatment of ail
underlying hazardous constituents. See Chemical Waste Management v. US EPA. 976 F.2d at 16 -
18 (D.C. Cir 1992). Therefore, today's final rule requires that all contaminated soil subject to the
LDRs be treated to achieve the soil treatment standards for each underlying hazardous constituent
reasonably expected to be present in the soil when such constituents are initially found at
concentrations greater than ten times the universal treatment standard. Characteristic soil must
also be treated, in the case of TC soil, for the TC constituent and. in the case of ignitable.
corrosive, or reactive soil, for the characteristic property.

• "The complexity of the Agency's proposed approach to constituents subject to treatment
further illustrates the flaws of the Bright Line approach, tethered as it is to subtitle C by
the contained-in concept. In addition to the varying treatment requirements based solely
upon regulatory classification, as discussed above, EPA would apply those varying
requirements to varying constituents, again based solely on arbitrary regulatory
classification. Thus, some media (sediments, groundwater) would be treated to existing
LDRs for all constituents present above the UTS, some soil (that which contains or in
some cases formerly contained a listed waste) would be treated to the new LDRs for those
constituents for which the contaminated waste is listed and which are present at
concentrations exceeding 10 times the UTS, and soil exhibiting a characteristic would be
treated to the new LDRs for every UTS constituent. These increasing layers of complexity
and differential standards utterly unrelated to risk potential are a testament to the flaws of
the Bright Line approach. We also suspect that such an approach will be unmanageably
complex for States and EPA to implement, and the default will be to assume all media
contains hazardous waste and to require treatment for all constituents in all contaminated
media, so as to avoid the mind boggling regulatory maze that will otherwise result. This.
of course, would further erode the already limited reform offered by the Bright Line
approach." (117)

EPA is also not. at this time, taking action on the portions of the HWIR-Media proposal that would
have provided opportunities for some or all remediation waste (e.g., sediments, ground water) to
exit the RCRA Subtitle C svstem. If. in the future, EPA takes such action it will address
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comments on the relationship of LDRs for other remediation waste to LDRs for contaminated soil.
as necessary, at that time.
• "EPA requests comment on the approach that contaminated environmental media
containing one or more hazardous constituents at concentrations greater than Bright Line
concentrations would be ineligible for a contained-in decision and would become subject
to the requirements for hazardous contaminated media, including LDR requirements.
Westinghouse does not support this approach. Triggering the requirements to meet LDR
standards for all constituents, even those constituents below the Bright Line values, when
a media has one or more constituents above the Bright Line is overly restrictive. As an
alternative, only those constituents that are above the Bright Line value should be subject
to LDR requirements." (35)

• "When a remediation wastes has hazardous constituents for which it was listed both above
and below the bright line. LDR requirements should only apply to those constituents
above the bright line." (108)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line'' to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If. in the future, EPA takes
action to establish a bright line. EPA will address concerns regarding the relationship of the bright
line to the new soil treatment standards, as necessary, at that time.

• "Page 18809, column 3, second paragraph, in regards to the constituents subject to
treatment we believe that all constituents present above UTS standards should be subject
to treatment. Also, in regards to background, it would be appropriate to compare
inorganic concentrations with background concentrations of the inorganic constituents as
there are some geographic areas where inorganic concentrations might be expected to be
naturally elevated." (41)

Response: Regarding constituents subject to treatment. EPA was persuaded by this comment and
for this, and other reasons, has modified the final rules to require that both soil contaminated by
listed waste and soil that exhibits a characteristic of hazardous waste be treated for all underlying
hazardous constituents that are reasonably expected to be present when such constituents are found
at initial concentrations greater than ten times the UTS. As discussed further in the preamble to
today's action. EPA is confident that sampling and analysis can be appropriately targeted to ensure
that it is focused on appropriate hazardous constituents or classes of hazardous constituents and

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does not intend that sampling and analysis would routinely be required for the entire suite of
universal treatment standard constituents.

Regarding background concentrations, in consideration of this and other comments. EPA has
concluded that treatment to comply with the soil treatment standards should not be required if
constituent concentrations fall below naturally occurring background concentrations, provided the
soil will continue to be managed on site or in an area with similar natural background
concentrations. If soil will be sent for land disposal off-site, compliance with the new soil
treatment standards is required, since the Agency believes that natural background concentrations
on-site will not automatically correspond to natural background concentrations at a remote land
disposal facility.

The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA has
determined that soil (like other environmental media) is not, of itself, a waste EPA is not
convinced the Agency would have the authority to require compliance with LDR treatment
standards when constituent concentrations fall below background concentrations even if it felt
compelled to do so. (Of course, such constituents could be regulated as hazardous constituents
under cleanup authorities, including RCRA corrective action and other authorities.)

Since background concentrations may vary across geographic areas, and to ensure that the LDR
soil treatment standards will only be capped at background where appropriate. EPA will require
that individuals who wish to cap LDR treatment at natural background concentrations apply for
and receive an LDR treatment variance. EPA will presume that when the soil treatment standards
would require treatment to concentrations that are less than natural background, such a variance
will be appropriate, based on the finding that it is inappropriate, for contaminated soil, to require
treatment to concentrations less than natural background concentrations.

• "Page 18809, column 3, paragraph 2 states that "Under today's proposal, the Bright Line
does not define the applicability of LDR treatment requirements or the constituents subject
to treatment in media subject to the LDRs." The proposed rule does not emphasize this
point strongly enough, and should include language expressly forbidding such use of
Bright Line levels." (41)

The Agency continues to emphasize that, like the proposed bright line concentrations, the
technology-based LDR soil treatment standards are not and should not be considered surrogates
for site-specific, risk-based soil cleanup levels.
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» 'p. 18809. cols. 2 and 3 — EPA explains that for contaminated media other than soil.
treatment would be required for each constituent subject to treatment having
concentrations in the media in excess of Universal Treatment Standards (UTS). For
contaminated soil, treatment would be required for each constituent subject to
treatment having concentrations in the soil that exceed 10 times the UTS. In the case
of media that exhibit a characteristic, the Agency explains that treatment would be
required for the characteristic constituent (in the case of TC wastes) or the
characteristic property (in the case of ignitable, reactive, or corrosive wastes) and for
all underlying hazardous constituents listed in 40 CFR 268.48 "Table UTS -
Universal Treatment Standards" that are present and of concern in the media. The
Agency specifically requests comments on the scope of constituents that should be
subject to treatment under the proposed HWIR-media rule. As an example of a
possible restriction of scope, EPA asks whether background concentrations of
naturally occurring hazardous constituents should be explicitly evaluated when
identifying constituents that would be subject to treatment.

DOE believes it is not necessary to require treatment of every constituent subject to
treatment that exceeds UTS in contaminated media other than soils, or exceeds 10 times
UTS in contaminated soils. Instead. DOE would support an approach that would account
for background concentrations of naturally occurring hazardous constituents when
considering whether non-soil contaminated media contain concentrations of hazardous
constituents that exceed UTS and whether soil contains concentrations of hazardous
constituents that exceed 10 times the UTS. Additionally, DOE would support an
approach that would account for background concentrations of naturally occurring
hazardous constituents when determining whether any media exhibits a hazardous
characteristic, thus subjecting it (upon excavation) to LDR treatment standards. The
Department suggests that to account for background concentrations, LDR treatment
standards for media could be capped at the background concentration levels for the site
where the media is generated.

In the case of soils that exhibit a hazardous characteristic. DOE is concerned that the LDR
treatment requirements named by EPA (i.e.. removal of the characteristic, plus treatment
of underlying hazardous constituents to meet the UTS) will be a disincentive in certain
situations to remedial actions involving excavation and treatment. Therefore, the
Department encourages EPA to adopt an approach (such as accounting for naturally
occurring hazardous constituents when testing for hazardous characteristics) that will
reasonably ensure that, if soils generated during remedial actions are found to exhibit a
hazardous characteristic, it is not the result of naturally occurring hazardous constituents."
(60)

Response: In consideration of this and other comments. EPA has concluded that treatment to
comply with the soil treatment standards should not be required if constituent concentrations fall
below naturally, occurring background concentrations, provided the soil will continue to be
managed on site or in an area with similar natural background concentrations. If soil will be sent
for land disposal off-site, compliance with the new soil treatment standards is required, since the
Agency believes that natural background concentrations on-site will not automatically correspond
to natural background concentrations at a remote land disposal facility.
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The Agency notes that natural background concentrations are constituent concentrations that are
present in environmental media which has not been influenced by human activities or releases.
Since these constituent concentrations are present absent human influence and EPA has
determined that soil (like other environmental media) is not. of itself, a waste but may be resulated
as hazardous waste under RCRA only when it contains (or contained) waste, it would be
anomalous to require treatment under the LDR provisions when the soil could not be distinguished
from the rest of the soil at a site.

• "For soil above the bright line contaminated by listed hazardous wastes. EPA proposes
that the treatment standards apply to each hazardous constituent originating from the
wastes that is subject to a treatment standard for the waste, and is present at concentrations
above the treatment standard. However, in the case of soil exhibiting a hazardous waste
characteristic, EPA proposes requiring treatment for the constituents triggering the
characteristic designation, all constituents regulated under the treatment standards present
above the treatment standards. See 61 FR 18809.

Significantly, the proposed approach for characteristic soil is consistent with the
underlying principles of the land disposal restrictions program and the third third
litigation, and should be extended to media contaminated with listed waste. Once the
media is deemed subject to treatment, it should be subject to treatment that is effective for
the toxic constituents in it that are present in excess of applicable treatment standards.
There is no legitimate technical or environmental policy rationale for completely
disregarding some toxic constituents in media contaminated with listed wastes, or
requiring less comprehensive treatment for media contaminated with listed wastes than
media exhibiting a hazardous waste characteristic.

EPA's rationale of linking the application of treatment standards to only those constituents
originating from the listed hazardous waste appears to be a misguided jurisdictional
argument. EPA argues that the duty to treat should apply to only those constituents for
which treatment would have been required if the wastes were not in the media. See 61
FR. 18809. However, as a matter of law. sufficient jurisdiction over the "contained-in"
media is triggered by a finding that at least one constituent originating from the waste is
present above bright line levels, once jurisdiction is established, the relevant question
under the LDR program is how best to structure the treatment to satisfy the statutory
policy of reducing the toxicity and mobility of hazardous constituents present in the media
prior to land disposal. The Agency should recognize in this context as well that media
treatment requires a tailored approach which addresses the potential for the mixture of
listed waste and other materials. Just as the treatment standards themselves are to be
modified to address this phenomenon, so too must the relevant constituents of concern.
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As a practical matter, the linkage of treatment requirements to the origin of particular
constituents will present unnecessary problems for regulatory officials and responsible
parties. Much time, expense, and effort will be wasted investigating the origin of each
constituent in the media at many sites, if the origin of the constituent determines the
applicability' of treatment standards. This money and effort is better spent on designing
and performing effective treatment of the media.

And in some cases, after a substantial expenditure of resources, available information may
be inconclusive. Accordingly, investigating the pedigree of each hazardous constituent in
contaminated media for the purpose of applying treatment requirements is hardly
consistent with the objective of speeding cleanups articulated by EPA for this
rulemaking." (L03)

Response: EPA was persuaded by this comment and for this, and other reasons, has modified the
final rules to require that both soil contaminated by listed waste and soil that exhibits a
characteristic of hazardous waste be treated for all underlying hazardous constituents that are
reasonably expected to be present when such constituents are found at initial concentrations
greater than ten times the UTS. As discussed further in the preamble to today's action. EPA is
confident that sampling and analysis can be appropriately targeted to ensure that it is focused on
appropriate hazardous constituents or classes of hazardous constituents and does not intend that
sampling and analysis would routinely be required for the entire suite of universal treatment
standard constituents.

1.B.5 LDR Treatment Standards Are Not Workable for Non-Soil Media

Several commenters state that LDR treatment standards for non-soil media (e.g., water and
sediment) are unworkable.

• "EPA has requested comments regarding whether the current LDR treatment standards are
appropriate for "non-soil" hazardous contaminated media (e.g. groundwater or sediment),
or are otherwise compatible with the remediation context in which they will be applied. 61
Fed. Reg. 18807/2. The Agency also requests comments regarding whether its proposed.
modified LDR treatment standards are achievable using technologies appropriate at
remediation sites. Id.

CMA strongly believes the existing LDR treatment standards are inappropriate for
non-soil media contaminated with hazardous waste. In most cases, such standards were
developed based on application of excessive and costly incineration technologies for
organics and high temperature metal recovery technologies for metals. Alternative
technologies are more appropriate and efficient. Such alternatives may also provide greater
environmental benefits, by more promptly remediating significant risks, by eliminating the
cross-media transfer of pollutants, and by reducing energy consumption. Evidence of these
benefits is abundant in the existing records of decision which have been adopted under
CERCLA, particularly those approved in recent years. EPA should add those records of
decision to the rulemaking docket, if only by reference." (112)

Response: EPA is not in this rulemaking taking action on the portions of the HWIR-Media
proposal that would have addressed LDR issues in non-soil media such as ground water and

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sediments. If. in the future. EPA takes action on this portion or'the proposal, it will address these
commenter. as necessary, at that time.

1.B.6 90% Reduction or lOxUTS is Unreasonable

One commenter argued that LDR standards should not be modified for various contaminated
media.

Several commenters indicate that the 90% reduction or lOx UTS levels is unreasonable. Some
commenters mention that the standards are arbitrary have not been demonstrated to be achievable
in practice for any remediation waste. Commenters are also concerned that application of these
revised LDRs will hinder the development of innovative treatment technologies. [See Chapter 16
comments on innovative treatment technologies under RMPs.]

• "There is insufficient justification for altering the LDR requirements for those wastes to
which LDRs attach. The LDRs do not vary for different wastes containing the same
constituent: why should they be allowed to vary for media?" (41)

Response: EPA is not persuaded that it is inappropriate to establish specific LDR treatment
standards for contaminated soil. Soil is a considerably different matrix from
process wastes (necessitating a different treatment standards where treatment
standards are based on the performance of matrix-dependent technologies), and
treatment by combustion ( a matrix independent technology) is often
inappropriate, as explained in the preamble. Thus, as discussed further in the
preamble to today's action. EPA continues to believe that distinct treatability
issues associated with the soil matrix and distinctions posed by the remediation
context under which most contaminated soils are managed are adequate to justify
classification of soil as a new treatability group, eligible for specific land disposal
restriction treatment standards.

• "With respect to the generic modified LDRs proposed for contaminated media. CMA
observes the following. Considering EPA's LDR program was crafted only to assess the
treatability of as-generated process wastes, it is curious EPA seeks in the Bright Line
approach to maintain the proposition that a uniform set of LDR requirements can be fitted
to remediation wastes. While the Agency notes the 10 x UTS or the 90% removal LDR
requirement for remediation wastes is a relaxed standard, the plain and simple truth is
these standards have not been demonstrated to be achievable in practice for any
remediation waste, much less for all remediation wastes. CMA believes that where these
standards are achievable for soil, for example, they frequently will be achievable only
through the use of incineration - the very technology often inappropriately required under
current law by the existing Part 268 BOAT standards!

EPA cannot justify the failure to evaluate achievability for large classes of material.
Implied by recognizing this limitation, EPA has proposed to authorized site-specific
variances where 90% of BDAT or 10 x UTS cannot be achieved. Providing variances.
however, is not an adequate substitute for obtaining the required data. Further. EPA is
simultaneously proposing to authorize Directors to impose more stringent LDR
requirements in RMPs based on site-specific factors, if determined necessary to minimize

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threats under section 3004(m). 61 Fed. Reg. 18807. Such an approach simply adds yet
another unnecessary layer of complexity to arrive at the same desired result. Under the
proposed Unitary Approach, on the other hand, such site-specific treatment decisions may
be made solely on the basis of a protective remedial determination, unencumbered by the
regulatory complexity and disincentives associated with application of the LDRs." (112)

Response: The Agency concluded that the soil treatment standards can be reliably achieved
using: biotreatment. chemical extraction, dechlorination, soil washing,
stabilization and thermal desorption (depending on the hazardous constituents
involved). (EPA 1998a,EPA 1998b, EPA 1998c, and EPA 1998d.) Of course.
since soil treatment is generally matrix dependent, the exact treatment technology
which might be applied to any given contaminated soil will depend on the specific
properties of the soil and the hazardous constituents of concern. However, the
Agency finds that the standards typically can be achieved by at least one of the
demonstrated technologies, even in the case of hard-to-treat hazardous
constituents such as dioxins and furans. polychlorinated biphenyls, and
polynuclear aromatics. (EPA 1998a, EPA 1998b. and EPA 1998c)

The commenter believes that EPA's proposed treatment standards for hazardous
soils have not yet been demonstrated for any soils in practice. The commenter
emphasizes further that to the extent that if the proposed limits of 10 times UTS
or a 90 % reduction are achieved . it can only be done by incineration.

EPA disagrees.

First, the treatment data supporting the proposed rule clearly show and support
EPA's determination that several non-combustion technologies can meet the
proposed limits for organic and metal constituents found in hazardous soils, or 10
x UTS levels, or the 90% reduction in the total or leachable concentration of
hazardous constituents present in hazardous soils. (See preamble in Phase IV final
rule, EPA 1998a, EPA 1998 b, EPA 1998c, and EPA 1998d). For instance. EPA
collected over 6,000 paired data points describing the treatment of various
hazardous soils. In response to an outgrowth of the comments. EPA has retained
2,143 paired non-combustion data points to set today's treatment standards. EPA
believes that these 2,143 paired non-combustion data points are reasonably
sufficient to adequately describe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites,
including both Superfund and RCRA sites. (EPA1998a. EPA I998b, EPA 1998c.
EPA 1998d, and EPA 1994.) For instance, the SDB has treatment data on soils
with varying textures including top soils, silty/loam soils, and clay soils. (EPA
1998a) Furthermore, EPA has a number of bench and pilot studies on the
treatment of contaminated soils from wood preserving, petroleum refining, and
electroplating sites, which contain a wide range of constituents in high
concentrations such as polynuclear aromatic, phenolic, chlorinated organics.
spent solvents, creosote, and metals. (EPA 1998a) These constituents are found at
other RCRA and Superfund sites. (EPA1993a)
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Second, full-scale data on non-combustion technologies, published in 1995 and
1997.
show that ex-situ chemical and energy intensive remediation technologies applied
to Superfund sites can be engineered and optimized, generally, to meet pre-designed
remediation treatment objectives. In many instances, ex-situ processes were able
to meet a 90 % reduction of hazardous constituents in soils or the 10 times UTS
limit. (EPA 1998a) EPA refers to these data as the Superfund full scale 1995 and 1997
data studies.4

This is an expected result since ex-situ soil remediation technologies such as
stabilization, soil washing, dechlorination. and chemical extraction are more
amenable to optimization. One way to optimize these technologies is to rely on
physical and chemical technologies that enable the chemical/physical treatment of
soil properties or the homogenization of soils. (EPA 1998d. EPA 1994).

Another argument emphasized by the commenter is that a treatability variance
process is cumbersome and that it poses an additional hurdles for facilities seeking
to remediate soils. EPA is not persuaded by this argument. The remediation of
soils often is preceeded by several feasibility studies in order to assess the levels
of hazards to the human health and the environment that can be reduced by the
use of one or various remediation management scenarios.

If non-combustion treatment remedies are properly designed and implemented.
such feasibility studies may enable the overseeing agency to evaluate the
capabilities of the proposed treatment remedies and to determine whether or not
the treatment objectives set by today's rule can be met. It has been EPA's
experience under the Corrective Action Program and Superfund. that well
designed and implemented feasibility studies can assist EPA to asses the merits
for granting a treatability variance. To the extent such treatability variance is
warranted. EPA may use authorities under 268.44 (h) to set, instead, a treatment
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-
008 or PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945.
March 1995: (31 Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-I82911. March 1995: and (5) Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.
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variance alternative. Facilities are expected, however, to demonstrate :o EPA ••••• -.
the promulgated limits are inappropriate or why a particular treatment :echn;.:r-
or train of technologies reflecting proper operation of the treatment technoicr.es
on which the treatment standards are based may be unable to meet the rreanr.r".:
standards promulgated today. EPA does not expect there to be a need ror
treatment variances except in isolated instances.

The commenter was also questioning the merits of EPA's proposed Bright L.r.e
levels and the proposed provisions that may enable an overseeing agency to
impose more stringent requirements. However, based on further consideraticr. IT.;
consideration of comments, the Agency is persuaded that a site-specific min;~:ze
threat variance should be available to all contaminated soils. The Agency be!:e'. t
this is proper because the outcome of a site-specific, risk-based minimize threa:
variance -- alternative, site-specific LDR treatment standards based on risk - -'-\'.'.
be the same regardless of the initial concentrations of hazardous constituents. '.-
any case, the Agency is not at this time, taking action on the portion of the Apr.:
29. 1996 proposal that would have established a "bright line" to distinguish
between higher- and lower-risk media.
References:
EPA 1998a. Soil Data Analysis: Analysis of Treatabilitv Data for Contaminated Soil Treatm;"
Technologies. Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled:"Derivation of Treatment Achievability Results for Organic
Functional Groups and Tvpes of Compounds." April 1998. from Jose E. Labiosa and Rita C':.:v.
of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated S::'.s 2^
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Ur-icsa
and Rita Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998d, Amemorandum titled: '"Extrapolation of Treatment Performance Data in the So:! Di:a
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." Aprii
1998. from Jose E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation ::'
Wood Preserving Sites. Office of Research and Development, Washington, D.C., 20460.
(EPA7 625/R-97/009)

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guice.
Second Edition. Department of Defense/EPA Environmental Technology Council,
(EPA 542/B-94/013 or NTIS: PB 95-104 182)
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EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II. Document Number CS2P-S0599)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive
9360.0-46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response.
Washington. D.C.

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128, orNTIS: PB 95-963410.
"The proposed Bright Line approach does not directly address the legal authority -
-contingent management - that EPA recognizes to exist in its discussion of the Unitary
Approach. EPA therefore attempts to fight LDR disincentives in the Bright Line proposal
with both hands tied behind its back. To minimize the problems of LDRs for contaminated
soils (and possibly sediments). EPA again proposes a generic rule that contemplates
subsequent site-specific determinations. It appears to do so in order to provide a legal
justification for application of the generic rule to particular situations. The generic rule is
thus an unnecessary and inadequately explained construct that should be abandoned.

In particular. EPA proposes to establish for soils a new, generic set of LDRs. set by
reference to a 90% removal rate or 10 x UTS. CMA agrees with EPA that treatment of
contaminated soil poses technical problems that generally were not considered when the
Part 268 BDAT standards were developed and promulgated. CMA remains concerned,
however, that the current proposal has not been adequately explained and may not be
routinely achievable for soils in practice.

EPA admits that in proposing these alternative LDRs. it "did not use its normal approach
of setting technology-based LDR standards." 61 Fed. Reg. 18807. Moreover. EPA does
not claim that these standards represent BDAT in any sense: they have not been shown to
be the "best" or to be "demonstrated" or to be "achievable" in the real world of managing
remediation wastes. Nor, does EPA claim that these standards satisfy section 3004(m)'s
narrative requirement to minimize threats, or that they represent risk-based approaches to
minimizing threats. Instead. EPA contemplates providing discretion to Directors to impose
additional treatment standards if necessary to reach minimize threat levels, and to provide
variances if the proposed levels cannot be achieved in practice. No standards are provided
for such determinations, beyond the statutory requirements. Of greatest concern, no
consideration is given to excluding soils, other media, and other remediation wastes
entirely from the burdensome requirements and disincentives created by EPA's earlier
decisions to promote BDAT-based LDRs without determining risk-based floors.

Such regulatory proposals are wholly unnecessary. The bases for removing LDRs are
ultimately grounded on wholly defensible legal theories that avoid any of the limitations
driving EPA's proposal. In particular, LDRs may be found inapplicable to remediation
wastes based on integration with other statutes (e.g., CERCLA, state cleanup programs),
consideration of remediation wastes as newly generated waste, or even EPA's own policy
argument that RCRA may require such flexibility to avoid counterproductive results

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caused by strict application of statutory provisions. 61 Fed. Reg. 18830. EPA thus should
not adopt this proposal, but should adopt the Unitary Approach of excluding all
remediation wastes from LDR requirements. If EPA does adopt the proposed approach.
however, it should explain more clearly and provide an opportunity to comment on its
basis for specifying the generic BOAT values, the legal authority on which its decision is
based, and its reasons for rejecting broader regulatory relief." (112)

Response: The commenter is asking EPA to abandon its proposal calling for the
establishment of treatment standards that rely on the performance of treatment
technologies as opposed to risk based considerations that could be advocated
under a "contineney management approach" under the Unitary proposal. The
commenters has also raised various concerns regarding the basis of the treatment
standard, its legal justification, and questions EPA's assessment that the treatment
standards can be reached by noncombustion technologies. Finally, the commenter
objects to portions of the proposal that could allow Directors of regulator.'
agencies to impose additional treatment requirements under specific site
conditions. The commenter believes that the only way EPA can reconcile the
remediation of hazardous media under RCRA and other statues is to abandon the
LDR altogether and to promulgate instead the Unitary approach.

EPA has given consideration to these comments and the concerns of other
commenters. Regarding the "bright line" approach, the Agency, after further
consideration and consideration of comments, has decided to not take action on
the portion of the April 29. 1996. proposal that would establish a "bright line" to
distinguish between higher- and lower-risk media. The Agency is persuaded that
a site-specific minimize threat variance should be available to all contaminated
soils. EPA believes this is proper because the outcome of a site-specific, risk-
based minimize threat variance -- alternative, site-specific LDR treatment
standards based on risk -- will be the same regardless of the initial concentrations
of hazardous constituents.

EPA disagrees that the treatment standards stand outside the structure and
confines of Section 3004(m). First, the standards reflect performance
of best technologies for treating soils. Second, these standards--as
technology-based standards are based on performance of best technologies for
treating soils -- minimize threats posed by land disposal of the soils. HWTC III,
886F,2d at 362-65. Finally, EPA expects most decisions on soil treatment to be
made pursuant to the general standards, not through variances.

EPA is not persuaded by comments emphasizing that the treatment limits are
impractical or unachieveable.

1-97
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1997.

to
limit.
data
stabiliza-

optimi-
collected over 6.000 paired data points describing the treatment of various
hazardous soils. In response to an outgrowth of the comments. EPA has retained
2.143 paired non-combustion data points to set today's treatment standards. EPA
believes that these 2.143 paired non-combustion data points are reasonably
sufficient to adequately describe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites.
including both Superfund and RCRA sites. (EPA1998a. EPA 1998H. EPA 1998c.
EPA 1998d. and EPA 1994.) For instance, the SDB has treatment data on soils
with varying textures including top soils, silty/loam soils, and clay soils. (EPA
1998a) Furthermore. EPA has a number of bench and pilot studies on the
treatment of contaminated soils from wood preserving, petroleum refining, and
electroplating sites, which contain a wide range of constituents such as
polynuclear aromatic, phenolic, chlorinated organics. spent solvents, creosote, and
metals. (EPA 1998a) These constituents are found at other RCRA and
Superfund sites. (EPA 1993a)

Second, full-scale data on non-combustion technologies, published in 1995 and

show that ex-situ chemical and energy intensive remediation technologies applied
Superfund sites can be engineered and optimized, generally, to meet pre-designed
remediation treatment objectives. In many instances, ex-situ processes were able
meet a 90 % reduction of hazardous constituents in soils or the 10 times UTS
(EPA 1998a) EPA refers to these data as the Superfund full scale 1995 and 1997
studies.'

This is an expected result since ex-situ soil remediation technologies such as

tion, soil washing, dechlorination, and chemical extraction are more amenable to
3 These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-
008 or PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 orNTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 orNTIS: PB95-182945.
March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (51 Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 orNTIS: PB95-182929. March 1995.
1-98
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zation. (EPA 1994) One way to optimize these technologies is to rely on physical
and chemical technologies that enable the chemical/physical treatment of soil
properties or the homogenization of soils. (EPA 1998d. EPA 1994).

The commenter believes that LDRs may be found inapplicable to remediation
wastes based on integration with other statutes (e.g.. CERCLA. state cleanup
programs), consideration of remediation wastes as newly generated waste, or even
EPA's own policy argument that RCRA may require such flexibility to avoid
counterproductive results caused by strict application of statutory provisions. 61
Fed. Reg. 18830. The commenter concludes that as a result of this statutory
conflicts. EPA should not adopt this proposal, but instead, should adopt the
Unitary Approach of excluding all remediation wastes from LDR requirements.
EPA fails to see how these arguments address the specific statutory provision
applying LDR standards to hazardous soils from remediation. RCRA section
3004 (d) (3) and (e) (3). Nor does the Agency see the basis for a wholesale
finding that threats to human health and the environment posed by land disposal
of these contaminated soils is invariably minimized if no treatment occurs -- a
strongly possible consequence of the commenters' approach. Integration of
RCRA and other statutes is. of course, a legitimate goal, but not if core values of
RCRA. such as the requirement that hazardous wastes be treated before land
disposal, are ignored. 976 F. 2d at 23, 25. EPA believes the final rule provides a
means of integrating the remediation statutes with LDR by modifying the
treatment requirements so that they do not create perverse incentives not to treat.
but at the same time leaving in place a treatment regime providing a measure of
objectivity that threats really will be minimized. The Agency has also
promulgated a risk-based variance that can cap treatment if it can be demonstrated
that threats posed by disposal of the waste will in fact be minimized, based on the
circumstances at the particular site and the circumstances of the particular
contaminated soil.

The commenter was also questioning the merits of EPA's proposed Bright Line
levels and the proposed provisions that may enable an overseeing agency to
impose more stringent requirements. However, based on further consideration and
consideration of comments, the Agency is persuaded that a site-specific minimize
threat variance should be available to all contaminated soils. The Agency believes
this is proper because the outcome of a site-specific, risk-based minimize threat
variance — alternative, site-specific LDR treatment standards based on risk — will
be the same regardless of the initial concentrations of hazardous constituents. In
any case, the Agency is not at this time, taking action on the portion of the April
29, 1996 proposal that would have established a "bright line" to distinguish
between higher- and lower-risk media.
behind "the

particular
Also, the
Finally, the commenter asked EPA to clarify its legal and technical rationale

generic BOAT values" being promulgated by this rule. EPA notes that these
comments are addressed in the preamble of today's Phase IV final rule.
analysis of the available non-combustion data and other corroborative
data can be found
[-99
-------
in EPA 1998a. EPA 1998c. and EPA 1998d.
References:

EPA 1998a. Soil Data Analysis: Analysis of Treatabilitv Data for Contaminated Soil Treatment
Technologies, Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF )

EPA 1998b, memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic
Functional Groups and Tvpes of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d. Amemorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998, from Jose E. Labiosa of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of
Wood Preserving Sites, Office of Research and Development, Washington, D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1994. October 1994. Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition, Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104
EPA 1993 a, August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1993b. March 1993, Technology Selection Guide for Wood Treater Sites, OSWER Directive
9360.0-46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response.
Washington, D.C.

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128, or NTIS: PB 95-963410.
"CMA also strongly believes that the proposed, modified, LDR treatment standards for
contaminated soils are not routinely achievable, using even inappropriate incineration or

1-100
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high temperature metal recovery technologies. CM A applauds EPA for recognizing this is
a serious issue requiring the development of additional data, and for accepting that
non-combustion technologies are generally more appropriate than combustion
technologies for remediation of contaminated soils. 61 Fed. Reg. 18807/1. Nonetheless.
EPA has proposed to adopt a generic 90% reduction standard (measured as total
concentrations in regard to organics and as total concentrations for removal technologies
and leachate concentrations for solidification technologies in regard to metals), capped at
10 x UTS. Yet EPA simultaneously acknowledges that soil matrices and varying
contaminant levels may preclude achievement of target treatment standards in practice. 61
Fed. Reg. 18807/3.

EPA admits it has not conducted its normal statistical modeling procedure to establish
LDR treatment standards, requiring an adequate "demonstration" which it can operate at
required levels. Again, the complexity of EPA's proposed approach is unnecessary, and
will create, rather than remove disincentives to remediation.

The proposal to authorize Directors to impose additional LDR treatment standards is
wholly unnecessary. Directors must already approve management requirements for
remediation wastes which are protective of human health and the environment, and thus
may require any additional treatment necessary. In contrast, if Directors must review each
RMP to determine if the proposed treatment complies with section 3004(m), EPA's
proposed 90% reduction requirement serves no purpose and is indefensible as a generic
requirement. Further, it will preclude Directors from determining - without processing a
separate variance request — that the 90% reduction requirement is inapt." (112)

Response: The commentor is in error that EPA has stated in the HWIR media proposal that
EPA was uncertain that non-combustion technologies were able to attain the
proposed treatment limits for hazardous soil. I the 61 FR 18807/3, preamble,
EPA stated the following:

"...Thus, the Agency believes that technology-based treatment standards
for
contaminated soils should not rely exclusively on incineration or HTMR
and
that, in many cases, innovative technologies (i.e. non-combustion)
technologies will be appropriate. (See 55 FR 8666, 8760-8761, (March 9.
1990) and 58 FR 48092. 48125, (September 14, 1993)). While the Agency
believes that soil is.
in most cases, most appropriately treated using non-combustion
technologies
other than combustion; data gathered for the Phase II Soil proposal do not
demonstrate conclusively that the Universal Treatment Standards can be
met
using technologies other than combustion; therefore. EPA is proposing
the alternative soil treatment standards discussed today at treatment levels
somewhat above UTS levels."

This statement clearly states that EPA was uncertain if the available treatment

1-101
-------
performance data on hazardous soils treated by non-combustion could be inter-
preted to support a decision that the existing combustion based treatment
limits
(for nonwastewaters forms) in the 40 CFR § 268.48 can be met by non-
combustion
technologies.

EPA disagrees with the commenters statement that EPA has failed to demonstrate
that the proposed treatment standards can be routinely achieved by non-
combustion techno-logies. EPA has shown the standards in final are achievable
by demonstrated and available treatment technologies.

First, the treatment data supporting the proposed rule clearly show and support
EPA's
determination that several non-combustion technologies can meet the proposed
limits for organic and metal constituents found in hazardous soils, or 10 x UTS
levels, or the 90% reduction in the total or leachable concentration of hazardous
constituents present in hazardous soils. (See preamble in Phase IV final rule. EPA
1998a. EPA 1998 b. EPA 1998c. and EPA 1998d). For instance. EPA collected
over 6,000 paired data points describing the treatment of various hazardous soils. In
response to an outgrowth of the comments, EPA has retained 2,143 paired non-
combustion data points to set today's treatment standards. EPA believes that these
2,143 paired non-combustion data points are reasonably sufficient to adequately
des-cribe the treatment of metal, organics. and multiple metal and organic contaminants
that are frequently found at different type of sites, including both Superfund and
RCRA sites. (EPA1998a, EPA 1998b, EPA 1998c, EPA 1998d. and EPA 1994.)
For instance, the SDB has treatment data on soils with varying textures including top
soils, silty/loam soils, and clay soils. (EPA 1998a) Furthermore, EPA has a number
of bench and pilot studies on the treatment of
contaminated soils from wood preserving, petroleum refining, and electroplating
sites, which contain a wide range of constituents such as polynuclear aromatic.
phenolic. chlorinated organics. spent solvents, creosote, and metals. (EPA 1998a)
These constituents are found at other RCRA and Superfund sites. (EPA 1993a)

1-102
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Third, other pilot- and full-scale data supporting the development of Superfund
Presumptive Remedy guidance documents for wood preserving sites also support
EPA's proposed treatment standards. In particular, thermal desorption was able to
meet concentrations and concentration reduction levels that are congruent with the
treatment limits established by this rule. (EPA 1993b, EPA 1995a, and EPA
1997a)

This is an expected result since ex-situ soil remediation technologies such as
stabiliza-
tion, soil washing, dechlorination. and chemical extraction are more amenable to
optimi-
zation. (EPA 1994) One way to optimize these technologies is to rely on physical
and chemical technologies that enable the chemical/physical treatment of soil
properties or the homogenization of soils. (EPA 1998d, EPA 1994, and 1995 and
1997 Superfund
full scale ex-situ studies on biotreatment and thermal desorption.)
Furthermore, in this rulemaking, given the variability of hazardous soils (in terms
of soil textures, concentrations and numbers of hazardous constituents and soil
matrices), plus the special considerations of facilitating treatment during
remediation, the Agency is adopting treatment standards from the zone of
reasonable values which could be per-
missibly selected based upon the performance data. Thus, the data are not being
used so
much to establish a precise performance level as to confirm the typical

of the promulgated standards, i.e., ten times UTS or 90% reduction. It is therefore
reasonable and appropriate to regard bench and pilot scale treatment test data as
indicative of what levels of treatment that technology, when operated at
would yield.

The final rule no longer includes this provision. However, if the technology
based standards in this rule are inadequate to minimize threats on particlar
containers. Then stricter standards can be imposed pursuant to general
remediation authorities.

References:
achievabilitv
full scale.
008 or PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945.
Vlarch 1995: m Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.
1-103
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EPA 1998a. Soil Data Analysis: Analysis of Treatabilitv Data for Contaminated Soil Treatment
Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic
Functional Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d. Amemorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998. from Jose E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1997a, October 1997a. Treatment Technology Performance and Cost Data for Remediation
of Wood Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1995a. November 1995a. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition. Department of Defense/EPA Environmental Technology Council,
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a, August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil, Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1993b. March 1993, Technology Selection Guide for Wood Treater Sites. OSWER Directive
9360.0-46FS or EPA 540-F-93-020, Office of Solid Waste and Emergency Response.
Washington, D.C.

• "In the proposed rule, the treatment requirements for contaminated media is 90%
reduction in total constituent concentration or to a floor of 10 x UTS, for soil. For soils
that exhibit the characteristic of ignitability, corrosiviry, or reactivity, the treatment
requirement is deactivation technologies and addressing the underlying constituents. For
media other than soil, treatment is outlined in Part 268 treatment standards for each
constituent subject to treatment.

These modified treatment requirements, while on their face less stringent than the current
LDR treatment standards, still require the owner/operator to attain concentration levels
that may not be achievable at all and if achievable, are so only by using technologies that

1-104
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in many cases may be inappropriate for remediation wastes, e.g.. incineration of sediment
or waste waters containing only trace contaminants, when other technologies might be
more appropriate or more cost effective relative to risk.

EPA did not specify the rationale for choosing these treatment standards and even goes on
to say that "land disposal treatment standards for 'as-generated' wastes are not generally
appropriate for contaminated environmental media" 61 FR 18806. It is beyond reason then
why the Agency insists on force fitting LDR treatment standards developed for process
wastes to apply to remediation wastes. Merck suggests that the Agency leave treatment
decisions to the RMP manager after an identification of any risk to human health or the
environment has been made." (109)
Response:
EPA's

limits for

the 90%

outgrowth

set

data

organ ics.

type

EPA

soils
The commenter is asking EPA to abandon its proposal that would establish
treatment standards that rely on the performance of treatment technologies as
opposed to risk based considerations that could be advocated under a "contingent
management approach" under the Unitary proposal. The commenter has also
raised various concerns regarding the basis of the treatment standard, its legal
justification, and questions EPA's assessment that the treatment standards can be
reached by non-combustion technologies. The commenter believes that the only
way to achieve the proposed treatment standards for hazardous soils is by
incineration.

EPA is not persuaded by these comments.

First, the treatment data supporting the proposed rule clearly show and support

determination that several non-combustion technologies can meet the proposed

organic and metal constituents found in hazardous soils, or 10 x UTS levels, or

reduction in the total or leachable concentration of hazardous constituents present

hazardous soils. (See preamble in Phase IV final rule. EPA 1998a. EPA 1998 b.
EPA 1998c. and EPA 1998d). For instance. EPA collected over 6.000 paired data
points describing the treatment of various hazardous soils. In response to an

of the comments. EPA has retained 2.143 paired non-combustion data points to

today's treatment standards. EPA believes that these 2,143 paired non-combustion

points are reasonably sufficient to adequately describe the treatment of metal.

and multiple metal and organic contaminants that are frequently found at different

of sites, including both Superfund and RCRA sites. (EPA1998a. EPA 1998b,

1998c. EPA 1998d, and EPA 1994.) For instance, the SDB has treatment data on
1-105
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1998a)
treatment of

sites.

phenolic.
1997.

to
limit.
data
with varying textures including top soils, silty/loam soils, and clay soils. (EPA
Furthermore. EPA has a number of bench and pilot studies on the

contaminated soils from wood preserving, petroleum refining, and electroplating

which contain a wide range of constituents such as polynuclear aromatic.

chlorinated organics. spent solvents, creosote, and metals. (EPA 1998a) These
constituents are found at other RCRA and Superfund sites. (EPA 1993a)

Second, full-scale data on non-combustion technologies, published in 1995 and

show that ex-situ chemical and energy intensive remediation technologies applied
Supertund sites can be engineered and optimized, generally, to meet pre-designed
remediation treatment objectives. In many instances, ex-situ processes were able
meet a 90 % reduction of hazardous constituents in soils or the 10 times UTS
(EPA 1998a) EPA refers to these data as the Supertund full scale 1995 and 1997
studies.

This is an expected result since ex-situ soil remediation technologies such
asstabilization. soil washing, dechlorination, and chemical extraction are more
amenable to optimization. (EPA 1994) One way to optimize these technologies
is to rely on physical and chemical technologies that enable the chemical/physical
treatment of soil properties or the homogenization of soils. (EPA 1998d. EPA
1994. and 1995 Supertund full scale ex-situ studies on biotreatment and thermal
desorption.)

Finally, the commenter asks EPA to clarify its rationale on how the EPA arrived
to the proposed treatment standards for hazardous media. Presumably, the
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-
008 or PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other in Situ Technologies. July 1997. EPA
542-R-97-009 orNTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remec:a-
tion Case Studies: Thermal Desormion. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 orNTIS: PB95-182945.
March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 orNTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 orNTIS: PB95-182929. March 1995.
1-106
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standards for
in the past on
EPA believes
the context of

waste-

based
technolo-
commenter refers to the treatment standards proposed for sediments and
groundwater since the proposed treatment standards for hazardous soils are
broadly explained in the proposal and in the LDR's Phase 2 rule (see 61 FR
(18804-18818). April 29. 1996. and 58 FR (48122-48154), September 14. 1993.
respectively). EPA's rationale to promulgate the propsoed treatment standards for
hazardous soils is explained in the preamble of this rule (Phase IV. Section VII. 8
.( Hazardous Soils)) and the following references: EPA 1998a, EPA1998b. EPA
1998c. and EPA 1998d. The commenter points out a concern that by applying
the existing UTS treatment limits in the 40 CFR 268.48 to other hazardous
remediation media such as sediments and groundwaters. EPA will compel the
combustion of groundwaters and sediments. In particular, the commenter feels
that these treatment limits are inappropriate to these other remediation media since
these hazardous streams contain "low" to "minute" concentrations of hazardous
pollutants.

It appears that the commenter's concerns reflected the fact that treatment
wastewater forms of hazardous wastes in the 40 CFR 268.40 were based
the concentrations of organics measured in incineration scrubber waters.
that the concerns raised by the commenter are already addressed within

the Phase II final rule which switched all the treatment standards applicable to

water forms of hazardous wastes from combustion to treatment standards that are
on the treatment performance of physical, chemical, and biological treatment

gies that routinely treat industrial wastewaters. (EPA 1993d)

It has been EPA experience at Superfund and RCRA Corrective Action program
that hazardous leachate (F039). hazardous sediments, and other hazardous
groundwaters can routinely be treated in wastewater treatment processes that
support the treatment standards for wastewater forms of hazardous wastes in the
40 CFR 268.48. (See EPA 1993d for a discussion of treatment processes
supporting the treatment standards applicable to wastewater forms of LDR
hazardous wastes and EPA 1994 describing treatment technologies that can be
applied to groundwaters and sediments.) For instance, groundwaters have been
treated in optimized wastewater treatment trains that meet effluent standards that
allow the discharge of wastewaters into navigable waters or Publicly Owned
Treatment Works (POTWs). (EPA 1994) None of the commenters have
submitted treatment data that can support this commenter's (likewise
unsupported) contention that the treatment standards for hazardous constituents in
wastewater forms of hazardous wastes are inappropriate for sediments and
groundwaters.

Further, nonwastewater forms derived from the treatment of industrial wastewater
treatment process as well as from the treatment of any remediation activity
regulated under RCRA. CERCLA, or TSCA authorities are often required to
undergo additional treatment prior to land disposal. This is an expected result
since many of the wastewater treatment processes applied to hazardous sediments
1-107
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and groundwaters are physical and chemical processes that shift contaminants
from the treated media to a sludge or a more concentrated liquid stream. These
concentrated hazardous streams or remediation wastes can still pose a risk to the
human health and the environment upon disposal. Because these concentrated
streams are often sent offsite to undergo further treatment prior to land disposal
(EPA 1994), EPA believes, therefore, that it is appropriate to apply 40 CFR
§268.48 treatment standards to these wastes.
References:

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated
Soil Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for
Phase IV/Hazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic
Functional Groups and Tvpes of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998, from Jose E. Labiosa of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1997a, October 1997a. Treatment Technology Performance and Cost Data for Remediation
of Wood Preserving Sites, Office of Research and Development. Washington. D.C., 20460.
(EPA/625/R-97/009)

EPA 1995a, November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128, orNTIS: PB 95-963410.

EPA 1994, October 1994. Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition, Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1993b, March 1993, Technology Selection Guide for Wood Treater Sites, OSWER Directive
9360.0-46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response.
Washington, D.C.

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EPA 1993c. April 1993. Final Best Demonstrated Available Technology (BOAT) Background
Document for Universal Standards. Volume A: Universal Standards for Nonwastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1993d. April 1993. Final Best Demonstrated Available Technology (BOAT') Background
Document for Universal Standards. Volume B: Universal Standards for Waste\vater Forms of
Listed Hazardous Wastes. Office of Solid Waste, Washington. D.C. 20460
• "EPA's proposed LDR standards for soil are unrepresentative of the abilities of common
remedial technologies, and few non-thermal technologies will be capable of achieving the
proposed standards. This will serve to further impede the application of innovative
technologies and will simply reinforce many of the current impediments to remediation.
EPA's proposed LDRs rely on an extremely thin database of technology performance, with
the vast majority of the data arising from unrepresentative small-scale tests provided by
vendors. This limited data set was then analyzed on an unrepresentative constituent
by-constituent basis, ignoring the fact that remedial matrices contain multiple
contaminants, requiring simultaneous treatment, and the differing efficiencies for different
matrices and constituents typical of innovative technologies.

The data and their analysis simply do not support a conclusion that 90% reductions in
contaminant concentrations/10 times the UTS are routinely achievable by treatment
technologies other than incineration. Many of the very technologies EPA is attempting to
promote simply will not achieve this overly stringent level of treatment across the wide
range of matrices and contaminant types commonly found in remediation wastes. We also
note that there is no rational relation between such a treatment standard and potential risks
being addressed at sites.

The Agency's lack of solid treatability data reflects both the relative youth of many of
these technologies and the existing regulatory barriers to their application. The proposed
90% treatment standard will only further inhibit, rather than promote, these technologies.
and will continue to force the use of combustion for many remediation wastes.

A detailed evaluation of the proposed treatment standards is provided in Section V. of
these comments." (117)

Response: The commenter believes that EPA's proposed treatment standards for hazardous
soils have not yet been demonstrated for any soils in practice. In fact, the
commenter believes EPA's data base is not adequate to support the establishment
of the proposed treatment standards for soils. This is because the commenter
believes that EPA's performance data do not reflect the treatment of complex soil
matrices. The commenter emphasizes further that to the extent that the proposed
limits of 10 times UTS or a 90 % reduction are achieved , it can only be done by
incineration.

EPA is not persuaded by these comments.
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First, the treatment data supporting the proposed rule clearly show and support
EPA's determination that several non-combustion technologies can meet the
proposed limits for organic and metal constituents found in hazardous soils, or 10
x UTS levels, or the 90% reduction in the total or leachable concentration of
hazardous constituents present in hazardous soils. (See preamble in Phase IV final
rule. EPA 1998a. EPA 1998 b. EPA 1998c. and EPA 1998d). For instance. EPA
collected over 6.000 paired data points describing the treatment of various
hazardous soils. In response to an outgrowth of the comments. EPA has retained
2.143 paired non-combustion data points to set today's treatment standards. EPA
believes that these 2.143 paired non-combustion data points are reasonably
sufficient to adequately describe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites.
including both Superfund and RCRA sites. (EPA1998a, EPA 1998b. EPA 1998c.
EPA 1998d, and EPA 1994.) For instance, the SDB has treatment data on soils
with varying textures including top soils, silty/loam soils, and clay soils. (EPA
1998a) Furthermore. EPA has a number of bench and pilot studies on the
treatment of contaminated soils from wood preserving, petroleum refining, and
electroplating sites, which contain a wide range of constituents such as
polynuclear aromatic, phenolic, chlorinated organics, spent solvents, creosote, and
metals. (EPA 1998a) These constituents are found at other RCRA and Superfund
sites. (EPA 1993a)

Third, other pilot- and full-scale data supporting the development of Superfund
Presumptive Remedy guidance documents for wood preserving sites also support
EPA's proposed treatment standards. In particular, thermal desorption was able to meet
Q
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. Julv 1997. EPA 542-R-97-
008 or PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 orNTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desorotion. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945.
March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911, March 1995: and (5) Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 orNTIS: PB95-182929. March 1995.

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concentrations and concentration reduction levels that are congruent with the
treatment limits established by this rule. (EPA 1998a. EPA 1993b, EPA 1995a. and
EPA 1997a)

Furthermore, in this rulemaking, given the variability of hazardous soils (in terms
of soil textures, concentrations and numbers of hazardous constituents and soil
matrices), plus the special considerations of facilitating treatment during
remediation, the Agency is adopting treatment standards from the zone of
reasonable values which could be permissibly selected based upon the
performance data. Thus, the data are not being used so much to establish a
precise performance level as to confirm the typical achievability of the
promulgated standards, i.e.. ten times UTS or 90% reduction.
Also, EPA is not persuaded by the arguments emphasizing that "innovative
technologies", hereby referred to as non-combustion technologies, are still in their
infancy. There is a wealth of information describing the field experience with
operation of non-combustion technologies that span over the past nine to thirteen
years.9 In fact, engineering feasibility studies are an integral part of remediation
activities that facilitates the reduction of uncertainties with regard to the
feasability of designing full-scale operations of one, two, or more non-combustion
treatment trains that are capable of meeting the treatment standards established
today. For instance, a wealth of literature has been published on the operation,
design, and field implementation of these non-combustion technologies (EPA
1998d and the Administrative Record for Best Management Practices): and many
universities teach courses today on the operation and design of soil remediation
technologies. Clearly, the availability of do-how and know-how is an
instrumental asset for facilities to reduce uncertainties with the design, operation.
and implementation of noncombustion technology trains. Adequate site
characterization of contaminant, soil texture distributions (profiles), and other soil
characteristics can enable the use of sound engineering principles and process
engieneering to advert or managed potential soil matrix interferences and thus.
meet the treatment objectives set by today's standards. (EPA1998d, see Chapter 2
in EPA 1994, and 1995 and 1997 Superfund remediation studies of full-scale ex-
situ processes.)
9 See pages 9 through 21 document titled: Innovative Treatment Technologies Annual Status
Report (eight Edition), November 1996, EPA. Washington. DC 20460. (EPA 542-R-96-010.)

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Further, contrary to the commenters presumption that the standards will inhibit
the use of non-combustion technologies (referred by the commneter as
'"innovative technologies"). EPA believes that a treatment standard expressed as
10 times UTS or a 90% reduction will foster greater use of non-combustion
technologies. For example, one likely impact of today's treatment standard is to
foster greater use of combined treatment trains that can boost the ability to
bioreactors to decontaminate hazardous soils in shorter times or greater
performance rates. (1995 and 1997 Superfund studies and EPA 1994.) Other
examples of conceptual/innovative non-combustion technologies that are likely to
be fostered: but are not limited to: chemical extraction, thermal dehalogenation
processes, and electro kinetics treatment systems described in EPA 1991.
References:

EPA 1998c, memorandum titled:''Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of
Wood Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/ 625/R-97/009)

EPA 1995a, November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162, EPA 540/R-95/128. or NTTS: PB 95-963410.

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition. Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or iNTIS: PB 95-104 182)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington. Virginia.

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(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive
9360.0-46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response.
Washington. D.C.

EPA 1991. November 1991. The Superfund Innovative Technology Evaluation Program:
Technology Profiles. Fourth Edition. Office of Solid Waste and Emergency Repsonse and Office
of Research and Deveiopement. Washingtn, D.C., EPA 540/5-91/008 orNTIS: PB92-224294.
• "Although we have consistently advocated a site-specific risk-based approach to setting
treatment goals. EPA has requested comment on its proposed technology-based standard.
embodied in the Bright Line approach. We note that in the FACA deliberations one goal
of any treatment: requirement was assurance that the use of effective innovative
technologies would not be excluded from application but would, in fact be promoted. We
have numerous concerns regarding EPA's proposed 90% reduction standard for higher
level material, and have expressed such concerns throughout the HWIR deliberations. We
note that the "areas of agreement" among the stakeholders recorded by EPA at the July 21.
1993 Roundtable meeting referred to treatment requirements, of either an unspecified
percent reduction (because participants did not agree that 90% was appropriate) or
specified technologies with best management practices. In our judgment, the concept of
specified technologies was abandoned by EPA without rigorous evaluation. The 90%
reduction value that EPA is pursuing emanated from the since set aside effort to generate
soil LDR BDATs. That effort relied upon an extremely thin database on technology
performance, with the vast majority of the data arising from unrepresentative small-scale
tests provided by vendors This limited dare set was then analyzed on an unrepresentative
constituent-by-constituent basis that ignores the reality that remedial matrices contain
multiple contaminants requiring simultaneous treatment, and the differing efficiencies for
different matrices and constituents typical of innovative technologies.

The data and their analysis simply do not support a conclusion that 90% reductions in
contaminant concentrations are routinely achievable by treatment technologies other than
incineration. Many of the very technologies EPA is attempting to promote simply will not
achieve this overly stringent level of treatment across the wide range of matrices and
contaminant types commonly found in remediation wastes.

We also note that there is no rational relation between such a treatment standard and
potential risks being addressed at sites. In that regard, we point out that in the proposed
rule the Agency proposes that more stringent treatment requirements (than the
90%/lOxUTS standard) may be required if the overseeing Agency determines that such
further treatment is necessary to meet the Agency's remedial objectives for the site. While
we have no quarrel with such a concept, it is entirely inappropriate to include such an
approach in HWIR without a concomitant provision that authorizes the overseeing Agency
to require less stringent treatment requirements if the remedial objectives for the site
warrant such a result. Otherwise, HWIR will lead to the absurd result that overseeing
agencies can set treatment requirements for lower level wastes by taking site-specific
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cleanup objectives into account while not being able to do so for higher level materials at
the same site.

The Agency's lack of solid treatability data reflects both the relative youth of many of
these technologies and the current regulatory barriers to their application. The proposed
90% treatment standard will only further inhibit, rather than promote, these technologies.
and will continue to force the use of combustion for many remediation wastes.

If EPA pursues a Bright Line approach we encourage the Agency to structure the rule in a
manner that promotes innovative technologies. Several options are available. In one
option, the implementing agency would require the person implementing the remediation
waste management to perform an evaluation of the need for treatment for materials above
the Bright Line. This would be a risk-based evaluation following appropriate criteria for
such evaluations. This approach would ensure a deliberate consideration of the need for
and appropriate degree of treatment that would be part of the RAP process and subject to
public review and comment.

An additional option includes the application of specified technologies (as agreed to by the
FACA). We have previously articulated an approach to fostering innovative technologies
and developing a more robust treatability database through the use of specified
technologies employing best management practices. EPA would also need to provide
greater flexibility in situations where a good faith effort to reach the treatment standard
falls slightly short so that additional costly treatment for a marginal reduction in
concentrations is not required. We note that the FACA agreed on this point as well.
Specifying that treatment standards apply only to those constituents exceeding the Bright
Line would also be important to ensure the appropriate application of technologies." (117)

Response: The commenter indicates that EPA relied upon an extremely thin database on
technology performance, with the vast majority of the data arising from
unrepresentative small-scale tests provided by vendors. The commenter is also
concerned that a constituent by constituent analysis may fail to address site
specific complexities that may arise from the presence of multiple constituents at
a site.

These concerns are addressed in the background documents supporting today's
final rule (EPA 1998a, EPA 1998b, EPA I998c, and EPA 1998d). EPA agrees
that a constituent-by-constituent approach may be inappropriate. However, a
constituent-by-constituent approach was not used as the stand alone method to
arrive to the 90 % reduction or 10 times UTS treatment limit. In the proposed
Phase II rule, EPA also grouped hazardous constituents into distinctive
treatability groups (see discussions of treatment performance attained by clusters
of BOAT hazardous constituents in Chapter 4 of EPA 1993a and contaminated
soil and debris functional treatability groups in Table 5.3 of Chapter 5 in EPA
1993a). EPA has improved its discussion of treatability groups and the transfer-
ability of the available data to other hazardous constituents/treatability groups that
lack treatment data in the soil data base. (See EPA 1998a. EPA 1998b, EPA
1998c, and EPA 1998d.)
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EPA is not persuaded by the comments that the treatment standards are not
achievable or that these treatment standrads shall not be finalized because of the
available limited treatment data on the performance of full-scale operations of a
few non-combustion technologies (refered to the commentor as "innovative
technologies").

First, the treatment data supporting the proposed rule clearly show and support
EPA's determination that several non-combustion technologies can meet
the proposed limits for organic and metal constituents found in hazardous soils, or
10 x UTS levels, or the 90% reduction in the total or leachable concentration of
hazardous constituents present in hazardous soils. (See preamble in Phase IV final
rule, EPA 1998a, EPA 1998 b, EPA1998c. and EPA 1998d). For instance. EPA
collected over 6.000 paired data points describing the treatment of various
hazardous soils. In response to an outgrowth of the comments. EPA has retained
2,143 paired non-combustion data points to set today's treatment standards. EPA
believes that these 2.143 paired non-combustion data points are reasonably
sufficient to adequately des-cribe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites.
including both Superfund and RCRA sites. (EPA1998a. EPA 1998b. EPA 1998c.
EPA 1998d, and EPA 1994.) For instance, the SDB has treatment data on soils
with varying textures including top soils, silty/loam soils, and clay soils. (EPA
1998a) Furthermore, EPA has a number of bench and pilot studies on the
treatment of contaminated soils from wood preserving, petroleum refining, and
electroplating sites, which contain a wide range of constituents such as
polynuclear aromatic, phenolic, chlorinated organics, spent solvents, creosote, and
metals. (EPA 1998a) These constituents are found at other RCRA and Superfund
sites. (EPA 1993a)

Second, full-scale data on non-combustion technologies, published in 1995 and
1997, show that ex-situ chemical and energy intensive remediation technologies
applied to Superfund sites can be engineered and optimized, generally, to meet
pre-designed remediation treatment objectives. In many instances, ex-situ
processes were able to meet a 90 % reduction of hazardous constituents in soils or
the 10 times UTS limit. (EPA 1998a) EPA refers to these data as the Superfund
full scale 1995 and 1997 data studies.10
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-
008 or PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945.
March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-Q04 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation
Case Studies: Groundvvater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.
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Third, other pilot- and full-scale data supporting the development of Superfund
Presumptive Remedy guidance documents for wood preserving sites also support
EPA's proposed treatment standards. In particular, thermal desorption was able to
meet concentrations and concentration reduction levels that are congruent with the
treatment limits established by this rule. (EPA 1993b, EPA 1995a. and EPA
1997a)

Further, the establishment of treatment standards under 3004(m) does not compel
EPA to establish treatment levels that are achievable by all or many technologies.
This is because HSWA directs EPA to emphasize treatment levels that
substantially reduce the mobility or toxicity of hazardous constituents prior to
disposal such that the short- and long-term threats to the human health and the
environment are minimized. EPA believes that by requiring a 90 % reduction or
10 times the UTS treatment limits in the 40 CFR §268.48, the provisions of
3004(m) are met. Although EPA agrees with most commenters that risk based
limits are also valid constructs of 3004(m), and provided that such limits can be
established with the requisite certainty that threats to human health and the
environment are minimized. EPA believes that technology based limits are also
appropriate and valid constructs to regulate the disposal of soils contaminated
with hazardous wastes since such standards provide an objective measure of
determining that threats are indeed being reduced (normally to the limit of a
technology reasonably applied to the waste) so as to substantially reduce
hazardous constituent mobility or concentration. EPA has long indicated that its
preference would be to establish a complete set of risk-based land disposal
treatment standards at levels that minimize short and long-term threats to human
health and the environment. However, the difficulties involved in establishing
risk-based standards on a nationwide basis are formidable due in large part to the
wide variety of site-specific physical and chemical compositions encountered in
the field and the uncertainties involved in evaluating long-term threats posed by
land disposal. The final rule, however, consistent with the commenter's
suggestion, contains a site-specific risk-based variance which can cap treatment
standards.

However, if a soil treatment standard proves unachievable for a particular soil
matrix using one, two. or more technologies on which the standard is based, and that one
technology or appropriate technology train is properly designed and operated, then
a treatment variance could be issued under the unachievable prong of the 40 CFR
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§268.44 (h). There is no requirement that the soil be treated by combustion to
achieve the treatment standard.

The commenter emphasizes use of innovative treatment technologies employing
best management practices. EPA is in agreement with this comment and have
acted very proactively to complete the Best Management Practices (BMPs) for
Soil Treatment Technologies guidance document (EPA530-R-97-007) in May
1997. All non-combustion treatment technologies that are currently used for soil
treatment have been included in that guidance. The document also has kept
provision for use of BMPs by future innovative/ non- combustion technologies by
listing key features of each technology groups.
References:

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of
Wood Preserving Sites. Office of Research and Development. Washington. D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1995a, November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128, orNTIS: PB 95-963410.

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition. Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BDAT)
Background Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)
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EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive
Q360.0-46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response.
Washington. D.C.
"EPA's proposed LDR treatment standards are badly flawed, and few remedial
technologies would be able to meet them on real contaminated media. Both the data used
for the analysis and the manner in which the data was analyzed were flawed, with the
result that the LDRs simply do not reflect the technological capabilities of common
remedial technologies. These proposed standards will only serve to reinforce the status
quo of excessive, costly treatment unrelated to risk.

EPA developed its proposed soil treatment goals based upon the Agency's very limited
innovative technology data for soils, the Soil Treatability Database (SID), which contains
a total of 295 tests for 9 technologies. The data base contains 2540 data pairs for 80
constituents, or an average of 31 data pairs per constituent per technology. Each data pair
consists of a pre-and post-treatment concentration for a given constituent. EPA then
extended this limited data for 80 constituents to 932 constituents.

In addition to the limited amount of data in the data base, the vast majority of it was
derived from unrepresentative small scale tests. Eighty five percent (85% ) of the tests in
the database were performed on samples smaller than 1000 kg (or less than 5 drums) of
soil, with fully 40% of the tests performed on less than 1 kg (1 quart) of soil. EPA
recommends minimum treatability sample sizes on the order of 1,000-5,000 kg
(treatability sample exclusion volume expansion proposal). Very little of the data in the
STD derives from tests on such volumes, rather the majority is from tests performed in
beakers on a lab bench. We also note that most of EPA's data derived from technology
vendors, who often report their best results on individual constituents from multiple tests.
rather than actual performance on multiple constituents from a representative test.

Soil is a highly heterogeneous medium, such that such small samples are unrepresentative.
This heterogeneity occurs both in the physical form of the soil (e.g. the relative
proportions of gravel, sand, silt and clay, as well as organic matter and other soil
components) and in the distribution of contaminants (often influenced by the physical
characteristics of the soil). Thus, the small samples that form the basis of the STD are
unrepresentative of actual contaminated soil, such rhat the testing data cannot be
legitimately extrapolated.

Further, bench and pilot scale tests, which form the virtual totality of the database, are
unrepresentative of both treatment technology process variability and scale up
performance. As a result, the performance of these small scale tests on unrepresentative
samples of soil result in a database that provides no sound technical basis for establishing
the expected performance of these treatment technologies in the real world.

The final flaw in EPA's development of soil treatment goals was the analysis of the data
base on a constituent by constituent basis. In essence, the Agency would extract all data
pairs for a given constituent for all technologies tested from the data base. This data.
naturally reflecting a range of treatment effectiveness related to the soil types and

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technologies tested (though unlikely reflecting actual technology performance) was then
plotted with the number of data points on one axis and the post treatment concentration on
the other. EPA indicates that for most constituents these curves generally described an "S"
form. EPA then selected the flexion point on the curve as representative of the ability of
the technologies to treat the constituent.

This technique has several significant flaws. We have already discussed the lack of
representativeness of the data in the first instance. In addition, the data analysis approach
ignores the fact that contaminated media almost always contain an array of contaminants
across several contaminant classes (e.g. volatile and semi-volatile organic materials.
metals). Each technology has (often widely) varying degrees of efficiency for different
constituents. As a result, while a given technology might be able to achieve EPA's
specified treatment goals for a given constituent in a given soil type, it is highly unlikely
that the technology could uniformly achieve the treatment goal for all of the constituents in
the normal range of soil types.

For example, soil Bio remediation may show very high removals for volatile aromatic
hydrocarbons in sandy soils, lesser removals for semi-volatile aromatic hydrocarbons and
varying removals for chlorinated hydrocarbons. While the treatment might be sufficient to
protect human health and the environment, it would not likely meet the stringent goals
EPA has proposed for all constituents and all soils. In fact, we have very strong concerns
that innovative technologies will seldom meet the stringent proposed treatment goals for
all of the different constituents in soil. This suggests that only very aggressive
technologies with uniformly high removals across constituent classes, such as incineration.
will achieve the proposed treatment goals on many soils. Such an approach appears
inconsistent with several of EPA's policy goals, including promoting the use of innovative
technologies in HWIR. "reducing reliance on thermal technologies and promoting risk
based remedial solutions in the Corrective Action program.

We believe that the Agency's proposed approach will simply perpetuate the current LDR
impediments which the Agency expresses clearly in the preamble:
"In proposing the NCP, EPA discussed the effect that LDRs can have on
CERCLA decision making. For wastes potentially subject to the LDRs. essentially
only two options will generally be available ~ treatment to BOAT standards, or
containment (including containment of wastes treated in situ). The range of
treatment technologies between these two extremes that may be practical and
cost-effective, and yield highly protective environmental results, would not be
available to decision makers. In some cases, given only these two remedial
choices, decision makers may be pressured to select containment remedies that
offer less permanence than treatment options that might otherwise be selected if
the LDRs were not applicable (54 FR 41566, 41568, (October 10. 1989)."

c. Treatment decisions should be site-specific and risk-based

We firmly believe that treatment needs should be established on a site-by-site basis and
should be a risk-based decision, just as are other remedial decisions made every day by the

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programs that would oversee HWIR implementation. A one-size-fits-all technology based
standard, particularly one as flawed as this, simply has no place in a remedial context. This
is particularly striking in light of EPA's stated desire to make the RCRA Corrective Action
program a risk based remedial program.

./. DuPont offers nvo alternate treatment requirement approaches

We think this is yet another sound argument for EPA's adoption of the Unitary approach to
the HWIR rulemaking. However, if the Agency continues to pursue a Bright Line
approach we recommend two options for addressing treatment. In the first option, the
implementing Agency would require the person implementing the remediation waste
management to perform an evaluation of the need for treatment for materials above the
Bright Line. This would be a risk-based evaluation following criteria established by the
Agency for such evaluations. This approach would ensure a deliberate consideration of the
need for and appropriate degree of treatment that would be part of the RAP process and
subject to public review and comment

A second, and in our view less appropriate, option, would be for EPA to specify treatment
for materials above the Bright Line not as a concentration goal but rather require that
specified innovative technologies be applied. This would allow innovative technologies to
be used, would not run afoul of the problems detailed above, and would provide EPA with
real world data on the performance of these technologies." (117)

Response: The commenter questions the validity of the soil treatability database for setting
the treatment goals, objects to the proposed methodology in setting the treatment
standards, and finally proposed two alternatives to the promulgation of technology
based treatment standards within the context of a Bright line model.

EPA is not persuaded by the comments that the treatment standards are not
achievable or that these treatment standrads shall not be finalized because of the
available limited treatment data on the performance of full-scale operations of a
few non-combustion technologies (refered to the commentor as "innovative
technologies").

Below are the responses to the issues raised by the commenter:

Validity of the Treatabilitv Data Base

1. Description of the soil data base.

The treatment data supporting the proposed rule clearly show and support EPA's
determination that several non-combustion technologies can meet the proposed
limits for organic and metal constituents found in hazardous soils, or 10 x UTS
levels, or the 90% reduction in the total or leachable concentration of hazardous
constituents present in hazardous soils. (See preamble in Phase IV final rule. EPA
1998a. EPA 1998 b. EPA 1998c, and EPA 1998d). For instance. EPA collected
over 6,000 paired data points describing the treatment of various hazardous soils.
In response to an outgrowth of the comments, EPA has retained 2,143 paired non-

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top

number of

preserving.

constituents

creosote.

Superfund
combustion data points to set today's treatment standards. EPA believes that these
2.143 paired non-combustion data points are reasonably to adequately describe the
treatment of metal, organics. and multiple metal and organic contaminants that are
frequently found at different type of sites, including both Superfund and RCRA
sites. (EPA1998a. EPA 1998b. EPA 1998c. EPA T998d, and EPA 1994.)
SeeEPA 1998a for more detailed information on the number of data points per
technology and scale of each treatability studies, number of constituents treated,
multi-contaminants per study, and the soil textures in the soild data base.

For instance, the SDB has treatment data on soils with varying textures including

soils, silty/loam soils, and clay soils. (EPA 1998a) Furthermore, EPA has a

bench and pilot studies on the treatment of contaminated soils from wood

petroleum refining, and electroplating sites, which contain a wide range of

such as polynuclear aromatic, phenolic, chlorinated organics. spent solvents.

and metals. (EPA 1998a) These constituents are found at other RCRA and

sites. (EPA 1993a)

2. Scale of the treatability studies.

The commenter opposes the proposed scale that designate treatability studies as
bench-, pilot-, or full-scale operation. The commenter feels, generally, that
sample size classifica-tion in the soil data base shall conform, presumably, to
sample sizes within the context of the RCRA treatability exclusion. EPA
addresses these comments in the Phase IV preamble of today's final rule, under
Section VII(8).

EPA shares the concerns of the commenter that there are some uncertainties with
regard to the proposed transfer of becnhc- and pilot-scale opeartions to full-scale
operations. EPA believes, however, that these uncertainties are already
addressed within the proposed and adopted screening and quality
assurance/quality control protocol and methodology to sort out data that may be
appropriate for rulemaking. (see EPA1993a and EPA 1998d)). For instance,
EPA eliminated from rulemaking consideration any operating data that resulted
from atypical full-scale operations. EPA excluded many bench- and pilot- scale
biological treatment studies that underwent excessive aeration since these practice
may not be reflective of full-scale operations. In any case, the extrapolation of
performance data from feasabilities studies to the scale up of full-scale operations
relies on empirical correlations and inferences from bench-/pilot-scale studies
along with engineering judgments on the validity of the attained results. As
commonly done by many process engineering practictioners, EPA has compared
the treatment performance ranges demonstrated by various treatment studies in the
data base to other corroborative data in the published literature (see. for example.
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to

to
limit.
data
Chapter 3 in EPA 1998d). EPA has found that the average treatment performance
ranges in the soil data base are congruent with those in the general literature. As a
result. EPA is promulgating the proposed treatment limits for hazardous soils.

3. Available full-scale treatment performance data for non-combustion
technologies show that the standards are generally achievable.

Full-scale data on non-combustion technologies, published in 1995 and 1997.
show that ex-situ chemical and energy intensive remediation technologies applied
Superfund sites can be engineered and optimized, generally, to meet pre-designed
remediation treatment objectives. In many instances, ex-situ processes were able
meet a 90 % reduction of hazardous constituents in soils or the 10 times UTS
(EPA 1998a) EPA refers to these data as the Superfund full scale 1995 and 1997
studies."

Other pilot- and full-scale data supporting the development of Superfund
Presumptive Remedy guidance documents for wood preserving sites also support
EPA?s proposed treatment standards. In particular, thermal desorption was able to
meet concentrations and concentration reduction levels that are congruent (i.e..
achieve) with the treatment limits established by this rule, even for soils heavily
contain with hard-to-treat hazardous constituent (e.g., PCP and PCBs). (EPA
1993b. EPA 1995a, EPA 1997a, and corroborative data in Chapter 3 of EPA
1998a)
This is an expected result since ex-situ soil remediation technologies such as
stabiliza-
tion, soil washing, dechformation, and chemical extraction are more amenable to
optimi-
zation. (EPA 1994) One way to optimize these technologies is to rely on physical
and chemical technologies that enable the chemical/physical treatment of soil
properties or the homogenization of soils. (EPA 1998d, EPA 1994. and 1995
Superfund full- scale
ex-situ studies on biotreatment and thermal desorption.)

4. How soil variabilty is being addressed in the Soil Data Base
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also
met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants
prior to disposal. See 1997 studies: (U Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-
008 or PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA
542-R-97-009 or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-
542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-
tion Case Studies: Thermal Desormion. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945.
March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995:
(4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation
Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.
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EPA agrees with the commenter that soils are inherently variable in their physical
and chemical characteristics. Usually, the variability is much greater vertically
than horizontally, resulting from the soil variability in the process that originally
formed the soils. The soil variability, in turn, will result in variability in the
distribution of water and contaminants and in the ease with which contaminants
can be transported within, and removed from, the soil at a particular site. (EPA
1994.)

EPA disagrees with the commenter. however, that such soil physical-chemical
variability is lacking in the soil data base. As shown in Chapter 4 and supporting
Appendices of EPA 1998a, the soil data base adequately describe the treatment of
various soil textures ranging from difficult-to-treat clays/silts to easier-to-treat
coarse/sands. Soil texture/particle size distribution is among one of the most
important soil characteristics to know because this soil characteristic parameter
may be used to screen the applicability of certain remediation technologies. In
other instances, particle size distribution enable the identification of adequate pre-
treatment steps or specialty/ancillary equipment that enable the contaminants to be
treated by an appropriate non-combustion treatment technology.

The soil data base also include some data points describing the treatment of oily
acidic sludges and sediments. These particular streams can mimic the treatment of
soils were clay/silts are the dominant soil texture. Further, the soil data base show
the effectiveness of various technologies in treating difficult-to-treat soil textures
and difficult-to-treat constituents such as PNAs (4 and 5 more rings), dioxin and
furans, and creosote admixtures.

Corroborative data in the 1995 and 1997 Superfund studies12 also show that soil
variability can be managed by optimized ex-situ full-scale treatment processes.
For instance, these Superfund 1995 and 1997 studies document the following
approaches to treatment optimization:
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ
remediation studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many
instances, also met the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of
hazardous contaminants prior to disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification.
July 1997. EPA 542-R-97-008 or PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ
Technologies. July 1997. EPA 542-R-97-009 or NTIS PB97-177562; (3) Analysis of Selected Enhancements for Soil Vapor
Extraction. September 1997. EPA-542-R-97-007. See 1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-
001. March 1995: (2) Remedia-tion Case Studies: Thermal Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-
005 or NTIS: PB95-182945. March 1995: (3) Remediation Case Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS:
PB95-182937. March 1995: (4) Remediation Case Studies: Bio remediation. EPA-542-R-95-002 or NTIS: PB95-182911.
March 1995: and (5) Remediation Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS: PB95-182929. March
1995.

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(a) Soil homogenizationlj - involves the use of ex-situ physical, chemical fp/c)
processes to reduce soil heterogeneities that may inhibit treatment performance.
P/C processes can be used to screen and segregate fines from large soil fractions.
to mix soils with less contaminated/clean soils such that soil malleability can be
improved, or to treat other dominant soil physical/chemical characteristic in order
to facilitate or to enhance treatment.

Another technique is the selective excavation of soils.'4 This technique involves
the combined use of visual inspections, adequate site characterization data on soil
texture variability and contaminant distribution, historical site management
practices, and field sampling testing equipment/protocols in. order to screen
vertical soil bands or horizontal soil that can be selectively excavated to undergo
treatment. This other technique is routine to the excavation and remediation of
hazardous soils.

(b) Technology design - involves an understanding of the contaminants in the
soil, soil properties that can inhibit treatment, the extrapolation of empirical data
from feasibility pilot-/bench-scale studies to full-scale operations. The
extrapolation of empirical data also involves the exercise of sound engineering
judgments with regard to soil/conta-minant characteristics that can cause material
handling problems, identification of ancillary or specialty equipment units that
can be installed to lessen such material handling problems, and designing the right
sequence these equipment ought to be installed and operated.

(c) Technology operation - involves various trial and error steps that operators
follow in scoping the operational technology parameters that can harness the
capabilities of the technology to treat the contaminated soils and thus, meet the
technology pre-designed treatment objectives. For instance, operators may
identify key recalcitrant or difficult-to-treat hazardous constituents to monitor for
and then, optimize operational parameters that enhance the removal or
destructtion of such contaminants. For example, the operator may operate the
treatment process at a higher temperatures, an optimum pH range, a greater ratio
amount of reagent-to-contaminant, or at the upper range of the technology
designed treatment range provide for longer residense time.

In conclusion. EPA believes that the concerns expressed by the commenter are
adequately addressed in the soil data base. The corroborative data show that
many of the issues raised by the commenters can be adequately addressed within
See description of soil screening and separation processes that enable the treatment of difficult-to-treat clay/silty
soils via bioremediation and the soil washing of sludge/soil bands: respectively, in the following Super-fund 1995/1997 full-scale
ex-situ treatability studies: (1) Slurry Phase Bioremediation at the Southern Wood Preserving Superfund Site. Canton.
Mississippi. in p. 83. EPA 1997b and (2) Soil Washing at the King of Prussia Technical Corporation Superfund Site. Winslow
Township. New Jersey, in p.36 through 38 of EPA 1995b.
For example, see the selective soil excavation technique described in the corroborative full-scale Superfund study
titled: Soil Washing at the King of Prussia Technical Corporation Superfund Site. Winslow Township. New Jersey, in p.35 & 36
of EPA 1995a.
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the context of treatability feasibility studies which are an integral part of soil
remediation activities under both RCRA and CERCLA programs. Further, the
treatment performance of ex-situ full scale operations ( bioremediation. thermal
desorption. and soil washing) in the 1995 and 1997 Supertund studies are
congruent (i.e. achieve) with the treatment performance that these technologies
achieved for similar difficult-to-treat hazardous constituents and harder-to treat
soils in the soil data base described in EPA 1998a.
fail to
consti-
final rule
a constituent-

constituent

or 10

hazardous

performance

and

Chapter 5 in

transfer-

treat-

EPA
Methodology to Establish Treatment Standards for Hazardous Soils
The commenter is also concerned that a constituent by constituent analysis may
address site specific complexities that may arise from the presence of multiple

tuents at a site.

These concerns are addressed in the background documents supporting today's
(EPA 1998a. EPA 1998b. EPA 1998c. and EPA 1998d). EPA agreesthat

by-constituent approach may be inappropriate. However, a constituent-by-

apprpach was not used as the stand alone method to arrive to the 90 % reduction

times UTS treatment limit. In the proposed Phase II rule, EPA also grouped

constituents into distinctive treatability groups (see discussions of treatment

attained by clusters of BOAT hazardous constituents in Chapter 4 of EPA1993a

contaminated soil and debris functional treatability groups in Table 5.3 of

EPA 1993a). EPA has improved its discussion of treatabilty groups and the

ability of the avialble to other hazardous constiruents/treatability groups that lack

ment data in the soil data base. (See EPA 1998a. EPA 1998b, EPA 1998c, and

1998d.)

Other miscellaneous issues
EPA also disagrees with the commenter that the proposed approach will
perpetuate current LDR potential impediments. The options provided in the final
rule would have containment or treatment options using faster, cheaper, and
newer technologies. More innovative stabilization technologies have been
developed. Also, new technologies, such as electro kinetics have shown promise.
(EPA 1991)

The commenter was also questioning the merits of EPA's proposed Bright Line
levels and the proposed provisions that may enable an overseeing agency to
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impose more stringent requirements. However, based on further consideration and
consideration of comments, the Agency is persuaded that a site-specific minimize
threat variance should be available to all contaminated soils. The Agency believes
this is proper because the outcome of a site-specific, risk-based minimize threat
variance — alternative, site-specific LDR treatment standards based on risk - will
be the same regardless of the initial concentrations of hazardous constituents. In
any case, the Agency is not at this time, taking action on the portion of the April
29, 1996 proposal that would have established a "bright line" to distinguish
between higher- and lower-risk media. Therefore, the commenters proposed two
alternative approachesto LDR -technology based treatment standards can not be
addressed in this final rule.

References:
EPA 1998a. Soil Data Analysis: Analysis of Treatabilirv Data for Contaminated Soil Treatment
Technologies. Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilirv Results for Organic
Functional Groups and Tvpes of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase {V Final Rule Preamble." April 1998, from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998d. Amemorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998, from Jose E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1997a. October 1997, Treatment Technology Performance and Cost Data for Remediation of
Wood Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/ 625/R-97/009)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BDAD
Background Document for Hazardous Soil, Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase II. Document Number CS2P-S0599)

EPA 1993b. March 1993, Technology Selection Guide for Wood Treater Sites. OSWER Directive
9360.0-46FS or EPA 540-F-93-020, Office of Solid Waste and Emergency Response.
Washington, D.C.
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EPA 1995a. November 1995, Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA 1991. November 1991. The Superrund Innovative Technology Evaluation Program:
Technology Profiles, Fourth Edition. Office of Solid Waste and Emergency Repsonse and Office
of Research and Developement. Washingtn, D.C.. EPA 540/5-91/008 or NTIS: PB92-224294.

• "DuPont firmly believes that LDRs are inappropriate in the remedial context, and that
EPA should adopt the Unitary approach to HWIR and so obviate the need to establish
arbitrary generic treatment standards. If EPA chooses, however, to proceed with the Bright
Line approach, an alternate approach to establishing treatment goals is sorely needed, as
the proposed LDRs are badly flawed and will largely perpetuate the current impediments
to remediation. In this instance we would encourage the Agency to specify a range of
effective remedial technologies whose application would constitute compliance with
LDRs. EPA could then collect real world treatment performance results, and in the future
be in a position to promulgate either a risk methodology for determining site-specific LDR
treatment requirements (our preference) or legitimate and achievable technology based
LDRs based on the real performance of remedial technologies." (117)

Response: Many commenters expressed concern that application of LDRs to remediation
wastes was (1) overly complex and (2) would result in treatment beyond the point
at which threats to human health or the environment are minimized. The majority
of these commenters. like this person, advised that the Agency either exempt
remediation waste entirely from a duty to comply with LDRs or. if compliance
with LDRs were required, allow treatment standards to be developed on a site-
specific basis.

Regarding concerns that application of LDRs to remediation waste is overly
complex and the suggestion that EPA simply exempt the majority of remediation
waste, including contaminated soil, from a duty to comply with LDRs. at this time
the Agency is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste to
exit large portions of the RCRA Subtitle C system. As discussed in the preamble
to today's action, the Agency continues to believe that legislative amendment of
the application of RCRA Subtitle C regulations, especially LDRs. to remediation
waste is needed. If legislative change is forthcoming, EPA will likely re-examine
application of LDRs to contaminated soil -- and remediation waste more generally
~ at that time. If there is no legislative clarification. EPA may choose to take
additional regulatory action, which may include a re-examination of the
application of LDRs to contaminated soil or other remediation wastes. In the
meantime, EPA has revised today's regulations to make it easier for generators to
determine whether they have a duty to comply with LDRs for contaminated soil.
Whether or not a duty to comply with LDR applies to any given contaminated soil
can now be ascertained by applying information about the soil to questions in an
easier to read chart. EPA believes this clarification will assist generators in
complying with LDR treatment standards and will ensure that hazardous
remediation wastes are treated appropriately.
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Regarding the concern that application of national, technology-based. LDR
treatment standards to contaminated soil - and other remediation waste ~ will
prompt treatment beyond the point at which threats to human health and the
environment are minimized and the suggestion that EPA allow treatment
standards for remediation waste to be developed based on risk. EPA agrees that
risk-based LDR treatment standards would be preferable. However, the Agency
has. to date, been unable to develop risk-based standards that could be applied at a
national level largely because of the wide variety of site-specific physical and
chemical compositions encountered in the field and the uncertainties involved in
evaluating long-term threats posed by land disposal. EPA believes, that it is
possible to evaluate hwen threats are minimized at individual remediation sites
and accordingly has adopted a site-specific risk-based variance as part of the final
rule. Thus, in order to ensure that the technology-based standards for
contaminated soil do not require treatment to a point beyond that at which threats
to human health and the environment are minimized, the Agency has provided an
opportunity for a treatment variance, which could be used, on a site-specific basis
to cap the technology-based treatment standards. The variance is discussed in
detail in the preamble to today's action.

• "We first note that EPA significantly mischaracterizes the agreement reached in the FACA
regarding treatment goals. Throughout the FACA deliberations industry representatives
raised significant concerns with a 90% reduction goal, which was used largely as a
"placeholder" during those deliberations, and advocated a specified technology approach.
wherein EPA would consider the application of certain specified remediation technologies
to constitute adequate treatment. The FACA did not in the end support a single treatment
goal, but directed EPA to look at either a specified technology approach or an undefined
percent reduction goal realistically achievable by innovative remedial technologies." (117)

Response: EPA finds that 90% reduction goal is achievable by noncombustion type
treatment technologies. Also, the establishment of treatment standards under
3004(m) do not compel EPA to establish treatment levels that are achievable by
all or many technologies. This is because HSWA directs EPA to emphasize
treatment levels that substantially reduce the mobility or toxicity of hazardous
constituents prior to disposal such that the short- and long-term threats to the
human health and the environment are minimized. EPA believes that by requiring
a 90 % reduction or 10 times the UTS treatment limits in the 40 CFR 268.48, the
provisions of 3004(m) are met. Although EPA agrees with most commenters that
risk based limits are also valid constructs of 3004(m), and that such alternative
construct may be more appropriate for some hazardous soils, EPA believes that
technology based limits are also appropriate and valid constructs to regulate the
disposal of soils comments contaminated with hazardous wastes. For certain
media, EPA believes that the treatability variance process can be an effective tool
to address concerns that may arise from uncertainties in meeting the treatment
objectives set by today's treatment standards. However, the Agency believes that
the technologies promulgated today are more than effective enough in reaching
the required standard.
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We regret that some commenters believe EPA mischaracterized the FACA
committee's advice.

"The proposed standards of 90 percent reduction or 10 times the universal treatment
standard are arbitrary levels that are not supported by technical or risk data. These
standards are particularly inappropriate for metals, which cannot be destroyed in the same
manner as organics. Therefore, the standard may not be possible to achieve in some cases.
depending on the characteristics of the particular soil. In practice, it is easier to meet the
90 percent reduction standard in soils with high metal concentrations than lower metal
concentrations. A highly contaminated soil treated to the 90 percent level may still pose
greater risks than a soil with lower metal concentrations that was not successfully treated
to the 90 percent level. EPA should adopt risk-based treatment standards that reflect the
special characteristics of metals rather than an arbitrary and scientifically unsupported 90
percent reduction standard." (75)
Response: As stated in today's preamble. EPA does not believe that the soil treatment
standards are arbitrary. They are within the zone of reasonable values achievable
by treatment technologies which are appropriate for remediation. Furthermore.
EPA strongly believes that the soil treatment standards can be reliably achieved.
Of course, since soil treatment is generally matrix dependent, the exact treatment
technology which might by applied to any given contaminated soil will depend on
the specific properties of the soil and the hazardous constituents of concern.
However, based on 269 data points, EPA has determined that the treatment of
metals in soils via stabilization resulted in average treatment efficiencies that
range from 91% to 99.8% (as measured in TCLP extracts). Thus, the Agency
concludes that today's treatment standards for metals in soils are feasible for a
wide variety of soils, and can be achieved by stabilization. (EPA 1998c)

Reference:

EPA 1998c. memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)
"Page 18806, column 3, paragraph 2. the proposed rule would establish alternative soil
specific LDR standards requiring treatment that would reduce constituent concentrations
by 90 percent. How effective is this target? At sites where such reductions have already
been targeted, how effective have they been? Is such a reduction realistic? Also, for metal
contaminants, the 90 percent standard would apply to the concentrations of the metals in
leachate as measured using the TCLP (or to the total concentrations of metals, but not
necessarily both). This may be protective of groundwater but not necessarily of direct
ingestion of soils and therefore the concentration of total metals reduction should be given
more weight when determining soils treatment." (41)
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Response: The levels chosen -90% reduction capped at 10 xUTS -- are within the zone of
reasonable levels the Agency could have selected as treatment standards for
contaminated soil, based upon performance of treatment technologies appropriate
for contamianted soils. The soil treatability data from EPA's Soil Treatment
Database indicate that the soil treatment standards are achievable. (See EPA
1998a. EPA 1998c)

References:

EPA 1998c. memorandum titledr'Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa
and Rita Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF.)
• "Land Disposal Restrictions. The proposal requires that soils be treated to a 90%
reduction of total constituent concentrations or as measured in leachate. if the constituent
is present in the soil at 10 times the Universal Treatment Standard. These treatment
standards aren't health-based, and the basis for those limits is arbitrary. Requirements
concerning treatment of the waste should be determined on a site-specific basis. The
requirement that remediation waste generated from cleanups should meet any land
disposal restriction requirements should be eliminated. The goal behind the land disposal
restrictions was to lessen the amount of generated waste. The goal behind a remediation
project is to remove and appropriately dispose the remediation waste. Imposing land
disposal restrictions creates disincentives to cleaning up the site." (128)

Response: The basis for the standards is not arbitrary. The standards are from a zone of
reasonable values reflecting treatment of soils by technologies appropriate for
treating soils. Further, though a goal of remediation is to re.move soils for
treatment, it remains a goal that threats posed by land disposal be minimized.
These standards help achieve that goal.
• "Requiring Treatment of Soils Such That the Concentrations of Non-Metal
Constituents Are Reduced By 90 Percent is Not Appropriate for Waste-Derived
Products Under § 266.20

In section V.C.2. of the proposed rule (61 Fed. Reg. at p. 18806), EPA proposes that
contaminated soils be treated so that the concentrations of non-metal constituents subject
to treatment are reduced by 90 percent with treatment, or 10 times the Universal
Treatment Standard, whichever is higher. For metal contaminants, the 90 percent standard
would apply either to the total concentrations or the metals in leachate as measured using
the TCLP.

Under Part 266, Encapco products must meet specific criteria before being applied to land.
The recyclable materials in such products must have undergone a chemical reaction in the
course of producing the product so as to become inseparable by physical means. Such
products must also satisfy the current Part 268 land disposal treatment standards. Such

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products must also constitute legitimate recycling, and must be producer :cr :ne general
public's use. See 40 CFR § 266.20(b). These stringent standards ensure :r.i: the
waste-derived products are protective of human health and the environment.
In the HWIR-Media proposal. EPA proposes soil-specific LDRs that, fcr ncr.metals.
would require either a 90 percent reduction in total constituents or 10 tirr.es :ne Universal
Treatment Standards, whichever is higher. The product produced by Encapco
demonstrates why this proposal is inappropriate for waste-derived products v. hich achieve
the rigorous § 266.20 standards. Encapco employs asphaltic emulsions, modified through
a proprietary process, to enhance the structural characteristics of soil througr. chemical
reaction and bonding, not just simple mixing. The resulting product has structural
properties, achieved without the use of any added aggregates, which enaoies it to be used
as a high grade road or asphalt base product. Because it renders the hazardous
constituents in soil, Encapco's stabilization/fixation technology will satisry i 266.20
requirements. Encapco's process also satisfies the land disposal treatment standards in 40
C.F.R. Part 268. Subpart D.

However, the 90 percent reduction of total constituent concentration would bar the use of
Encapco's process for treating soils contaminated with non-metal constituents. As a
stabilization/fixation technology, Encapco's process, and other stabilizat:on rrocesses.
only immobilizes hazardous constituents. The technology cannot alter the amount of
hazardous constituents in the soil, and thus the resulting waste-derived product cannot
satisry an LDR based on total concentration. As a result, no stabilization fixation process.
and few if any recycling processes of any other type, will be able to satisfy such a test.

Thus, even though the Encapco process recycles hazardous waste into a safe commercial
product which meets the current strict requirements of the waste-derived product
exemption, its use would be precluded by the proposed soil-specific LDRs in the proposed
HWIR-Media proposal. This result runs counter to RCRA's goal of promoting
environmentally-protective recycling, and is inconsistent with the underlying goal of the
HWIR-Media proposal." (53)

Response: As stated in more detail in the preamble, the Agency believes it is inappropriate
to apply the revised standards for soils to contaminated soils which are used in a
manner constituting disposal. There is a very real question whether such
standards would be sufficient to minimize threats, given the possibility of virtually
unlimited potential exposure pathways available for such wastes. In addition.
there is no question that the more stringent UTS levels are "appropriate" for such
wastes - unlike other contaminated soils — since EPA is not seeking to create
regulatory incentives for unsupervised land placement of contaminated soils (i.e.
Their use in a manner constituting disposal). The situation thus is different from
where the Agency wishes to encourage exhumation of soils so that the soils can be
treated and then disposed as part of a site remediation. EPA hopes to issue
guidance in the near future addressing the question of when stabilization of
organics might not be allowed as means of LDR compliance.
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• "The Agency's use of the universal treatment standards for this purpose is misplaced and
inappropriate. In the LDR Phase II proposal. EPA acknowledged that the treatment
standards applicable to "as generated" waste are not appropriate for contaminated soil, and
the Agency proposed alternative methods for establishing treatment standards for
contaminated soils (58 Fed. Reg. 48092. 48122-33 (Sept. 14. 1993)). The Agency later
withdrew this proposal, stating that the Hazardous Waste Identification Rule ("HWIR")
would be used as the mechanism for addressing the issue of contaminated media (59 Fed.
Reg. 10778 (March 8, 1994)). Relying on EPA's statements, the Consensus Group
deferred commenting on the PCB treatment standard in that earlier rulemaking. However.
despite EPA's assurances, the final LDR Phase II rule subjected soils to the LDRs and
imposed the same treatment standards on TC-organic soils as it did on "as generated"
TC-organic wastes (59 Fed. Reg. 47982, 4798-87 (September 19, 1994)). At the same
time, however, EPA acknowledged that these treatment standards are generally
unachievable for such soils. kL EPA's actions regarding the development of treatment
standards for contaminated soil deprived the regulated community of any meaningful
opportunity to provide comment on the proposal, and USWAG and NEMA have
challenged'EPA's action. N'at'l Elec. Mfr. Ass'n v. EPA. No. 94-1752 (D.C. Cir. filed
December 15. 1994). Because these standards remain unlawful, the Agency's persistence
in applying these same standards in the present rulemaking is similarly invalid." (58)

Response: The Agency strongly disagrees with the commenter's assertion that the regulated
community was deprived of any meaningful opportunity to provide comment on
the proposal, and rejects the other assertions made concerning EPA notice.
Therefore, the commenter's position is not persuasive, and was declared so by the
D.C. Circuit, finding that the Agency gave more than ample notice of its actions.
NEMA. 99 F. 3d 1179 (D.C. Cir. 1996).

• "Even if EPA is reproposing the universal treatment standard for PCBs as part of the
Media Rule, EPA has clearly acknowledged that the universal treatment standards are
inappropriate for contaminated soil. The Agency stated in the preamble to the Phase II
rule that because of the difference in physical form between soil and as-generated waste
"the treatment standards for as generated wastes are generally inappropriate or
unachievable for soils contaminated with hazardous wastes." (59 Fed. Reg. at 4798-087).
As further recognition of the inappropriateness of the universal treatment standard for
soils, the Agency provided that TC-organic soils would generally be eligible for a
treatability variance on a site-specific basis. Id..

The imposition of the Phase II LDR treatment standards on TC-organic soils also is
contrary to the Agency's approach for establishing the LDR rules. In promulgating
treatment standards, EPA has adopted a technology-based approach that focuses on the
levels that are achievable by the performance of the best demonstrated available
technology ("BDA"). The Agency has justified its use of a technology-based standard by
referring to the legislative history of RCRA section 3004(m) which states that "the
requisite levels of [sic] methods of treatment established by the Agency should be the best
that has been demonstrated to be achievable" and that Congress intended "to require
utilization of available technology in lieu of continued land disposal without prior
treatment." 51 Fed. Reg. 40572. 40578 (November 7. 1986) (emphasis added). As a
result, in promulgating a treatment standard that EPA presumes is unachievable for soils.

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the Agency has violated its own treatment standards and acted in an arbitrary and
capricious manner. See Horsehead Resource Development v. Browner. 16 P.3d 1246.
1269(D.C. Cir. 1994). cert, denied. 115 S.Ct. 72(1994).

In addition, as discussed below, the Media Rule would base the treatment standard for
PCBs on the use of a universal treatment standard of 10 ppm which directly conflicts with
the PCB standards established by the Agency in the TSCA program." (58) [Also See
Chapter 21 comments on PCBs.]

Response: The commenter is incorrect in saying that the new treatment standards for
contaminated soils are unachievable for PCBs. EPA also believes that the
treatment standards are achievable by chemcial dechlorination. chemical/solvent
extraction, and thermal desorption as shown in Chapter 3 and Appendix D of EPA
1998a. Therefore. EPA is promulgating treatment limits for ahzardous soils
contaminated with PCB's and other hazardous constituents in the UHC list as
proposed. Further, the commenter is wrong as factual matter since the amended
standards would not compel treatment below 100 ppm (total PCBs). See 40 CFR
268.49.

Response:

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilirv Data for Contaminated
Soi> ""eatment Technologies. Office of Solid Waste. Arlington, Virginia. (RCRA Docket for
Phase IV/Hazardous Soils/F-98-2P4F-FFFF)

• "EPA guidance (including the SSL guidance) clearly states that risk and, thus, cleanup
goals are based on mean concentrations in an exposure area. (See Attachment 6:
Statistical Approach to Meeting Soil Cleanup Goals, 30 Environ. Sci. & Technol. 1437
(1996)). Therefore, RCRA corrective action "action levels" and the treatment standards
should be based on mean concentrations. Any other approach will bias the results and not
add significantly to the protection of human health or the environment." (80)

Response:
EPA disagrees with the commenter that the treatment standards for hazardous
soils mustbe based, presumably, on mean concentrations that are measured in an
exposure area. The treatment standards promulgated today are technology based
and as such, EPA will be relying on grab samples to enforce the
treatment standards. This is because EPA believes that ex-situ
technologies that are well designed and operated are most likely to treat
uniformly hazardous soils prior to land disposal. However, EPA will be issuing,
shortly, guidance on how operators of technologies treating hazardous soils can
deter-mine what concentration of the constituents of concern should be targeted to
ensure compliance with the 90% reduction treatment limit.
"The acid test of any rule aimed at removing impediments to remediation is how it
addresses application of the LDRs to situations which were never contemplated when the
Part 268 BOAT treatment standards were developed. In this regard, the proposed Bright

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Line approach doe; r.ot ri.-; v.eil. The tnree rr. :st basic problems with the proposal are i!)
its failure to grapp.e -.vith •_- = point a: v.hich LZRs "attach" to remediation wastes and
contaminated med:2_ d. -3 reliance :n a gene~.c modified set of LDRs (90% of BOAT or
10 x UTS) which r-equev/. v>ould require ir.:: Deration of soil just as the Part 268 BOAT
standards do, and 1 its r^u.ung ir.zriiity tc ;adress the severe disincentives the LDRs
pose to remediaticr. at rnz-ty sites." '. 12)

Response: EPA disagrees v. r. :ne corr.menter :r.i: the proposed approach will pose
disincenti'. =5 to remediation it many ;::es due to the LDR requirements. The
Agency ccr.ienai ~ai the standards are appropriate because they are achievable by
noncombi-stion technology and provides a balance towards goals of treatment
without the neec :.: discourage treatment holistically as part of remediation.
(EPA 199?a. EFA :998b. E?A 1998c. and EPA 1998d.)

EPA agrees that rearment cecision my need to be site-specific and risk-based in
some case<. but -e feel tha: :ne techr.ciogy based limits are also valid constructs
and allowe-- by 1-15WA. In fact, risk rased levels can be used pursuant to a
treatabiii" •• anar.:e under ~-~ 3.44 (rr : r no-migration petition under 268.6.

OTHER REFERENCE
(1.B.6 - Literature supporting :rv% reduction or I'/xUTS Treatment Standards)

1. Dutta. Subijoy. 1997. Trsatab:..-. Analyse of Comr.eted Demonstration Projects, August 11.
1997.
1.B.7 Other CommenQ and Suggestions

One commenter indicates that cr;.ss-media transfer she aid not be addressed in the final rule.
[Similar comments may be founc :n Chapter ". 6 on the content of RMPs.]

• "The issue of crosi-mecm transfer should not ~e addressed in the final rule. A RAP or
RMP can address ar.y isj.es regardir.g the potential for cross-media transfer on a
case-by-case basis. 661

Response: EPA is not, at tnis rims, going fcr.vard \vit_- the portion of the HWIR-Media proposal
which explicitly required s:ii tre^rnent technologies :: be designed and operated in a manner that
controlled cross-media transfer. ~.n further considers::on, EPA believes this is already required
under the land disposal res^rictior. regulations. The Agency interprets the existing land disposal
restriction regulations to prohibit .nacceptabie levels ;f cross-media transfer during soil treatment.
because such transfer would be a rorm of impermissible dilution (cross-media transfer to air. for
example, is just diluting wi± air:. See 40 CFR 268.3 and ThirdThird opinion. 976 F.2d at 17: see
also, 60 FR at 43665 (Aug. 22. 1 .-95.) (excessive crosi-media transfer to air is a form of dilution
and is impermissible treatment I.

The Agency advises facilir- owners operators 10 caref_.ly design and operate soil treatment
systems to prevent unaccer:able :ros5-media transfer. Guidance on such design and operation can
be found in the EPA guidar.ce document titled "Best :• Management Practices (BMPs) for Soil

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Treatment Technologies" EPA 530-R-97-007. May 1997. The BMPs guidance document is
available at the RCRA docket (703-603-9230) and electronically, over the Internet, at
www.epa.gov'vcorrective action.

A couple of commenters indicate that cross-media impacts need to be considered, but not by using
overly prescriptive standards. [Similar comments may be found in Chapter 16 on the content of
RMPs.]

• "Control of transfer of pollutants to other media should be required only as necessary to
protect human health and the environment.

The proposed wording of 269.30(h) implies that controls would always be required.
irrespective of need. Union Carbide is concerned that 269.30(h) will be interpreted to
always require containers or tanks to employ covers, closed vent systems and controls, or
similar arrangements. However, some processes, such as the artificial wetlands described
in Union Carbide Case Study 3 at the end of these comments, commonly operate in open-
topped units. Air emission controls should be applied only where necessary to protect
health and the environment.

This requirement also introduces another overlap with the Clean Air Act. under which
EPA is developing MACT standards for remediation. Union Carbide believes that RCRA
should defer to the Clean Air for air emission issues." (114)

Response: EPA is not, at this time, going forward with the portion of the HWIR-Media proposal
which explicitly required soil treatment technologies to be designed and operated in a manner that
controlled cross-media transfer. On further consideration, EPA believes this is already required
under the land disposal restriction regulations. The Agency interprets the existing land disposal
restriction regulations to prohibit unacceptable levels of cross-media transfer during soil treatment.
because such transfer would be a form of impermissible dilution. See 40 CFR 268.3, and
ThirdThird opinion. 976 F.2d at 17; see also. 60 FR at 43665 (Aug. 22. 1995) (excessive cross-
media transfer to air is a form of dilution and is impermissible treatment).

The Agency advises facility owners/operators to carefully design and operate soil treatment
systems to prevent unacceptable cross-media transfer. Guidance on such design and operation can
be found in the EPA guidance document titled "Best Management Practices (BMPs) for Soil
Treatment Technologies " EPA 530-R-97-007, May 1997. The BMPs guidance document is
available at the RCRA docket (703-603-9230) and electronically, over the Internet, at
www.epa.gov\corrective action.

Under the BMPs guidance, air emission controls are only recommended if emissions will exceed
the existing regulatory limits.

• "While we concur that cross-media impacts are a relevant consideration in any treatment
process, we encourage the Agency to avoid establishing prescriptive standards or guidance
in this regard. Remediation technologies vary widely, and new technologies are emerging
every day. Each needs to be judged on its own merits as regards.the potential for
cross-media impacts. Overly prescriptive standards or guidance could inadvertently
impede the application of effective technologies. Thus, the Agency should establish broad

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performance goals for cross-media impacts and allow the overseeing Agency to determine
on a site-specific basis the controls required.

An example of the complications presented.by stringent one-size-fits-all prescriptions in
the remediation context is illustrated by a long held EPA policy of not allowing the
reinjection of groundwater contaminated above at the tap drinking water standards into an
aquifer. This policy long served to impede the development and application of in situ
treatment technologies, which often involve the reinjection of contaminated groundwater
with certain additives to create an in-ground treatment reactor. Requiring treatment prior
to reinjection skewed the economics of such approaches so as to make them impracticable.
EPA should take care to avoid such unintended consequences in addressing cross-media
impacts." (117)

Response: EPA is not. at this time, going forward with the portion of the HWIR-Media proposal
which explicitly required soil treatment technologies to be designed and operated in a manner that
controlled cross-media transfer. On further consideration. EPA believes this is already required
under the land disposal restriction regulations. The Agency interprets the existing land disposal
restriction regulations to prohibit unacceptable levels of cross-media transfer during soil treatment.
because such transfer would be a form of impermissible dilution. See 40 CFR 268.3.

The Agency advises facility owners/operators to carefully design and operate soil treatment
systems to prevent unacceptable cross-media transfer. Guidance on such design and operation can
be found in the EPA guidance document titled "Best Management Practices
-------
action to establish a bright line. EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards (and cleanup levels, if necessary) at that time.

One commenter mentions that a discussion on OSHA HAZWOPER regulations should be
included in the rule. [Also see Chapter 1 discussions of relationship of HWIR-Media to other
regulations.]

• "EPA provided much discussion in the proposed HWIR-media rule on it's impact on other
applicable regulatory requirements. However, this discussion did not discuss how or if
OSHA HAZWOPER regulations will apply to remediation wastes below the bright line."
(108)

One commenter indicates that it will be difficult to predict how much of this contaminated media
would be provided regulatory relief by this rule. [Also see Chapter 23 comments on the economic
assessment.]

• "With regard to V.A.4.C. THE BRIGHT LINE, while the cost-benefit analysis prepared
for this rule indicates that contaminated media make up the preponderance of material
managed at Superfund, corrective action and voluntary cleanup sites, we find it hard to
predict how much of this contaminated media would be provided regulatory relief by this
rule. Such a prediction will require a review of how much of the waste is below the
bright-line, and for how much of the waste management under an approved RMP would
prove more cost-efficient than Subtitle C management. If the RMP development and
review process is found to be expensive and if the volume of eligible media is low.
contaminated media could end up going to Subtitle C facilities in spite of the relief offered
by HWIR. Missouri will be reviewing these questions before deciding whether to adopt
HWIR-media." (36)

Response: EPA is not, at this time, taking action on the portion of the HWTR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future, EPA takes
action to establish a bright line. EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards at that time.

• "With regard to V.A.4.C. THE BRIGHT LINE, we reiterate that the amount of
contaminated media that would be provided regulatory relief by this rule is hard to predict.

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and that, if the RMP process is expensive and the volume of eligible meaia is .cv..
contaminated media would go to Subtitle C facilities in spite of the regulator. :e:: = -
offered by HWIR. Missouri will consider :nese cost-benefit issues, and rr.ay r.r:
incorporate HWIR-media if our findings c; not indicate a savings to offset the ccs~
(L0007)

Response: EPA is not. at this time, taking action cr. the portion of the HWIR-Media r:cp«:-M. that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today • • .1
apply to all hazardous contaminated soil and will require treatment for all underlying r.azarr: us
constituents that are reasonably expected to be present when such constituents are found a: .-.:tial
concentrations greater than ten times the universal treatment standard. If. in the future. E? -. :akes
action to establish a bright line, EPA will address concerns regarding the relationship of the rright
line to the soil treatment standards at that time.

• "Also in regard to V.A.4.C. THE BRIGHT LINE, the Bright Line values do not ccwilder
environmental risks, and in this regard, the proposed rule fails to achieve its engine- stated
intent." (L0007)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media propo:^ that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today •-•' J
apply to all hazardous contaminated soil and will require treatment for all underlying nazan-us
constituents that are reasonably expected to be present when such constituents are found ar r.itial
concentrations greater than ten times the universal treatment standard. If. in the future. E?.-. takes
action to establish a bright line. EPA will address concerns regarding the relationship of the rright
line to the soil treatment standards at that time.

Several commenters thought the rule mandated treatment for treatment's sake, without fact- ~ng in
site-specific, risk-based considerations.

• "Finally, based upon discussions in the Preamble and reports from FACA Subcommittee
meetings, it would appear that the actual purpose of the Bright Line is to require sc~e
media to be treated for the sake of treatment. It is inappropriate to require treatment
without regard to whether treatment is required for protection of human health anc ™e
environment." (134)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media propcsai that
would have established a "bright line" to distinguish beuveen higher- and lower-risk contaminated
media, including contaminated soil. The soil treatment standards promulgated today will army to
all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found a: itirtial
concentrations greater than ten times the universal treatment standard. If. in the future. EP.-. takes
action to establish a bright line, EPA will address concerns regarding the relationship of the rright
line to the soil treatment standards at that time.

EPA is sensitive to the concern that application of national, technology-based. LDR treatment
standards to contaminated soil - and other remediation waste -- will prompt treatment oeyct z the

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point at which threats to human health and the environment are minimized. (So called "treatment
for treatment's sake.") In order to ensure that the technology-based standards for contaminated
soil do not prompt treatment to a point beyond that at which threats to human health and the
environment are minimized, the Agency has provided an opportunity for a treatment variance.
which could be used, on a site-specific basis to cap the technology-based treatment standards. The
treatment variance is discussed in detail in the preamble to today's action.

• "The EPA should not impose mandatory treatment requirements or preferences for
treatment, but should instead focus on remedy selection criteria with treatment as one
possible remedy. We have state regulations governing remediations which already address
site-specific factors such as "hot spots" and adequately protect human health and the
environment. If the unitary approach is adopted and EPA finds it necessary to promulgate
some type of treatment provision, this provision should be established as guidance rather
than rule. By avoiding prescriptive treatment requirements, the rule will better allow for
flexibility and innovation in remediation efforts. Also, we would prefer to see remedy
selection criteria that can be applied uniformly between different programs, i.e. RCRA,
CERCLA. PST. etc." (133)

Response: EPA is sensitive to the concern that application of national, technology-based. LDR
treatment standards to contaminated soil - and other remediation waste — will prompt treatment
beyond the point at which threats to human health and the environment are minimized. (So called
"treatment for treatment's sake." In order to ensure that the technology-based standards for
contaminated soil do not prompt treatment to a point beyond that at which threats to human health
and the environment are minimized, the Agency has provided an opportunity for a treatment
variance, which could be used on a site-specific basis to cap the technology-based treatment
standards. The treatment variance is discussed in detail in the preamble to today's action.

Remedy selection criteria, such as applicable criteria under RCRA and CERCLA are not affected
by today's rulemaking.

• "If some of the soil is above the contained-out/Bright Line levels, may that soil be treated.
as necessary, to the less stringent LDR treatment standards under proposed 40 C.F.R.
269.30(e)? In other words, are these more lenient LDR treatment standards only available
to a company that goes through the Remediation Management Plan approval process
under the proposed rule?

A related question is, if the more lenient treatment standards are available, are they only
available if the sampling has been done prior to removal of the soils?" (124)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The soil treatment standards promulgated today will apply to
all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present when such constituents are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future. EPA takes
action to establish a bright line. EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards at that time.
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EPA has clarified in the preamble to today's final rule, that it is not necessary to make a contained-
in determination before removing any contaminated soil (besides the sample volume) from the
land. Care, however, should be taken to avoid removing contaminated soil from the land and
placing it in a way that would require compliance with the land disposal restriction treatment
standards, without first complying with LDRs.

One commenter recommends that EPA focus on either a specified technology approach or an
undefined percent reduction goal realistically achievable by innovative remedial technologies.
rather than a single treatment goal.

• "In its discussion of treatment requirements EPA notes its preference to establish generic.
nationwide risk-based treatment standards. While we concur with the Agency's desire for
risk-based approaches to treatment, we find the desire for generic, nationwide standards
for a remediation waste to be at significant odds with the Agency's statements elsewhere in
the proposed rule regarding the site specific nature of remediation and the high degree of
regulatory oversight, allowing for flexibility in remedial decision making. While generic.
risk-based standards might make sense in the self implementing process waste context
they are counterintuitive and counterproductive in the remediation context. Risk is
inextricably wherein EPA would consider the application of certain specified remediation
technologies to constitute adequate treatment. The FACA did not in the end support a
single treatment goal, but directed EPA to look at either a specified technology approach
or an undefined percent reduction goal realistically achievable by innovative remedial
technologies." (117)

Response: The commenter appears to suggest that EPA allow LDR treatment standards to be
developed entirely on a site-specific basis, considering the performance of remedial technologies.

At this time, the Agency has rejected the suggestion that EPA allow treatment standards to be
developed entirely on a site-by-site basis, absent a national baseline, to date, the Agency has
rejected this approach. RCRA Section 3004(m) requires EPA to promulgate, "levels or methods
of treatment, if any. . .." Although 3004(m) could be implemented in many ways, at this time.
EPA believes the most appropriate way to satisfy this RCRA Section 3004(m) mandate is to
establish technology-based, nationally applicable treatment standards, including standards tailored
for contaminated soil. Among other things, a national standard assures a basic measure of
consistency in determining the level of performance at which a technology-based standard can be
found to minimize threats posed by land disposal. However, because EPA realizes that
technology-based nationally applicable treatment standards, because of site- and waste-specific
characteristics, are sometimes not achievable or are inappropriate, EPA has long provided for
variances under these circumstances. In addition, because the Agency believes that, during
remediation, EPA and authorized states are in the position to make site-specific risk-based
minimize threat determinations, the Agency is also providing a variance, for contaminated soils if,
on a case-by-case basis, it is determined that the technology-based treatment standard would
require treatment beyond the point at which threats are minimized, as discussed above and in the
preamble to today's rule.

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non-combustion, remediation technologies such as. depending on the exact nature of the soil and
contaminants in question: biological treatment, thermal desorption. and dechlorination. If the soil
treatment standards are shown, because of site- and waste-specific conditions, to be unachieveable
(i.e. cannot be achieved using a properly operated treatment technology on which the treatment
standards are based) or inappropriate for any given contaminated soil, a land disposal restriction
treatment variance is available under current regulations at 40 CFR 268.44(h).
l.C MANAGING WASTES BELOW THE BRIGHT LINE AT SUBTITLE D
FACILITIES

Two commenters suggests that EPA should develop and implement a public education campaign
on the acceptance of nonhazardous contaminated media at Subtitle D facilities.

• "Regardless of which approach is adopted, the Agency has not addressed a serious
problem in this rulemaking, concerning the public perception associated with Subtitle D
facilities accepting contaminated media, which (if in the form of a process waste) would
have to be managed as hazardous. Rhetoric over the past 16 years from a variety of public
officials and private associations has overdramatized the "dangers" associated with
"hazardous waste." In broad brush attacks, both generators of hazardous waste and
hazardous waste treatment and disposal sites alike have been categorized as handlers of
dark and dangerous materials, when in fact they have been providing a safe environmental
and public service. Current manufacturing and disposal operations have been tarred with
the Superfund brush of "toxic dumps"and "sickened communities." Now, the Agency
proposes to relax requirements on the disposal of some of these same hazardous wastes.
We see nothing in the Agency's proposal that addresses how it plans to help defuse this
highly charged atmosphere it has helped create and the public perceptions it has helped to
shape. This is a serious credibility issue for all stakeholders. Communities that have only
begrudgingly, at best, accepted the disposal of municipal solid waste at a local landfill will
likely have major problems with their local landfill receiving "hazardous wastes" newly
classified by the Agency as "nonhazardous."

Therefore. WMX strongly urges the Agency to begin a process, through this rulemaking.
to properly define and educate the public about the true hazard associated with
contaminated media waste. A good starting point would be a public outreach with includes
a technical discussion of the advances that have taken place in modern landfill design (the
closeness of Subtitle C and D technical designs), and why today's well run land disposal
facilities are the proper environmental solution to aiding the corrective action and
voluntary cleanup process across the United States." (104)

Response: At this time, EPA is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste, including
contaminated soil, to exit large portions of the RCRA Subtitle C system. EPA is also not. at this
time, going forward with the portions of the HWIR-Media proposal which would have established
a "bright line" to distinguish between higher and lower risk remediation wastes. As discussed in
the preamble to today's action, the Agency continues to believe that legislative action to address
application of RCRA Subtitle C regulations, especially LDRs, to remediation waste is needed. If
legislative action is forthcoming, EPA will likely re-examine application of LDRs to contaminated

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soil — and remediation waste more generally -- at that time. If there is no legislation clarification.
EPA may choose to take additional regulatory action, which may include a re-examination of the
application of LDRs to contaminated soil or other remediation wastes.

If, in the future. EPA does take action to exempt or exclude some or all remediation waste from
the RCRA Subtitle C system, the Agency will address the need for a related public education
campaign, as necessary, at that time.

» "HWMA also believes that EPA must develop and implement a public education
campaign to ensure that the public is willing to accept wastes that have been designated as
"hazardous" for 20 years. We foresee serious problems in many communities that now
reluctantly accept municipal solid waste. It is likely that these communities will object
strongly to receiving contaminated media in their local landfills despite EPA's
redesignation of such media as nonhazardous." (69)

Several commenters discuss the relationship of TCLP and bright line for managing remediation
wastes with concentrations below the bright line. Commenters were concerned that unacceptable
materials, including some characteristic waste, may be brought for disposal to Subtitle D facilities
under an approved RMP.

• "SWANA's interest in the proposed rule deals mainly with the effect that exited
contaminated media will have on the municipal solid waste management systems that are
owned and operated by our membership. In general, these concerns deal with the practical
impacts of cost and system viability for municipal solid waste management facilities, how
these impacts are affected by the policy provisions under the proposed rule, and
discrepancies between HWIR-Media exit levels and the current TCLP testing protocols
used by MSWM facilities for acceptance or rejection of wastes." (84)

• "Under current operating procedures at MSWM facilities, the benchmark dictating the
acceptance of solid waste containing toxic materials is the Toxicity Characteristic
Leaching Procedure (TCLP). The regulatory levels for solid waste acceptance under the
TCLP test are derived from a twenty times (20x) dilution rate from the concentration of

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constituents contained in the actual sample of solid waste being tested. Table 1 below
shows the constituent concentrations necessary to yield the failing TCLP test
concentrations shown in parentheses (20x dilution). As indicated below in Table 1. HWIR
proposed soil Bright Line concentration exit levels for most TCLP listed materials far
exceed the concentration levels allowable by the TCLP test.

"Under the proposed HWIR exit levels it would seem that soil containing concentrations
of hazardous materials at the HWIR-Media levels listed above would be unacceptable at
MSWM facilities. SWANA is concerned that RMP standards that are determined on a site
and State specific basis will allow unacceptable materials to be brought for disposal to
MSWM facilities. SWANA believes that either the Bright Line system must be reviewed
for protectiveness of these facilities, or that the rule making must provide more
prescriptive standards that ensure that MSWM facilities will not be exposed to the liability
and operational issues that will arise from these potentially hazardous materials." (84)

• "The proposed rule fails to deal with the protectiveness of the Bright Line. SWANA
believes that if the proposed rule should become final, a quantitative Bright Line is
appropriate. However, SWANA questions the quantitative Bright Lines set in this
proposal for their protectiveness of the environment and MSWM facilities, and their
relationship to currently established testing limits (see Section II regarding Bright Line
comparison to TCLP levels)." (84)

Response: At this time. EPA is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste, including
. contaminated soil, to exit large portions of the RCRA Subtitle C system. EPA is also not at this
time, going forward with the portions of the HWIR-Media proposal which would have established
a ''bright line" to distinguish between higher and lower risk remediation wastes. As discussed in
the preamble to today's action, the Agency continues to believe that legislative action to address
the application of RCRA Subtitle C regulations, especially LDRs. to remediation waste is needed.
If legislative action is forthcoming, EPA will likely re-examine application of LDRs to
contaminated soil — and remediation waste more generally ~ at that time. If there is no legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the
application of LDRs to contaminated soil or other remediation wastes.

Under current regulations, therefore, contaminated soil which exhibits a characteristic of
hazardous waste must be managed as if it were hazardous waste and in not eligible for disposal at
a Subtitle D municipal facility.

• "Recommendations for Handling Media Which is Below the Bright Line But Which
Exhibits a Hazardous Waste Characteristic

EPA has proposed that media exhibiting a hazardous waste characteristic which is below
the bright line should be exempt from Subtitle C control. The comments argue that this
position is indefensible because EPA has failed to account for the risks of leachate
contaminated groundwater in setting the bright line level for soils.

The comments state "The Toxicity Characteristic reflects, on at least a limited basis, the
risk posed by leaching of hazardous constituents from wastes and the ingestion of

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contaminated drinking water. If EPA ignores these risks the human and environmental
threats posed by waste leaching are essentially unaddressed in this proposal."

The comments go on to urge EPA to adhere to its previous position (and the consensus
position of the F.AC A group) that characteristically hazardous waste must be subject to
Subpart C control. In the alternative, the comments argue that EPA must revise the bright
line concentration for contaminated soils to take account of groundwater exposures in
accordance with the Ogden report. (Pages 15-18).

5) Off-Site Management of Contaminated Media

The comments note that contaminated media "below the bright line" will often still be
several orders of magnitude more hazardous than wastes at the 10"6 risk levels which EPA
has proposed as "safe" levels to allow PROCESS wastes to exit the Subtitle C system. The
Council also discusses the absence of a requirement for manifests or shipping papers to
alert Off-site facilities of the potential risks posed by this still-hazardous media.

Given these facts, the comments urge that media below the 10~3 bright line but still above
the 10"" HWIR exit level for HWIR process waste must be restricted to permitted Subtitle
C facilities when shipped off-site for treatment or disposal.

This position was discussed at some length by those working on the comments. We were
initially concerned that taking this position would increase the incentive to handle
contaminated media on-site —even where on-site management posed increased
environmental risks-since "below the bright line" media managed on-site would often not
have to meet Subtitle C standards. We ultimately concluded, however, that PRP's would
opt for on-site management wherever feasible-regardless of whether or not off-site
shipments above the HWIR exit level would require Subtitle C management. Moreover,
we concluded that allowing the Subtitle D disposal of off-site media shipments at
concentrations above the 10"6 HWIR process waste exit level would seriously undercut
the HWIR standard for management of process waste and potentially endanger MSW and
other Subtitle D facilities which were not prepared to handle these higher-concentration
wastes. Finally, we were concerned that absent requirements for the Subtitle C
management of high-concentration media shipments there might be no manifest or other
mechanisms in place to provide notice to facilities of the kinds and toxicity of the media
they were receiving. (See pages 13-14)." (88)

"EPA notes that non-hazardous contaminated media "would not be regulated as hazardous
waste" but "might nonetheless be contaminated enough to be of some concern to the
overseeing Agency's site cleanup decision." The Council believes that this "nonhazardous
media" will frequently still pose serious potential environmental problems. Non-hazardous
media falling below the proposed 10-J Bright Line level will still be several orders of
magnitude more hazardous than the 10-6 risk level which EPA has established as a "safe"
level to allow process wastes to exit the Subtitle C system.

We have serious concerns about any system which would allow media at these high
concentrations to be disposed of in local municipal solid waste facilities. We are equally
concerned that many industrial non-hazardous waste landfills, which are currently

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regulated only by individual states and vary greatly in technical sophistication and
required technical safeguards, will often be inappropriate for disposal of these kinds of
media. To make matters worse, there is no requirement that shipment of these materials to
potentially unsuspecting off-site facilities will be accomplished by uniform manifests or
shipping documents which provide adequate notice of the kinds of waste being tendered
for disposal or the constituent concentrations that these wastes contain.

In addition to hazardous waste treatment, recycling, and disposal facilities. Council
members currently operate commercial municipal solid waste facilities and industrial
nonhazardous waste units. We view the potential threats posed by these off-site shipments
with great concern. From our perspective, these kinds of off-site shipments pose worker-
safety and facility-integrity problems which many municipal solid waste and industrial
nonhazardous waste facilities are simply not prepared to deal with. Moreover, many of
these facilities have formal or informal agreements with local communities concerning the
nature of wastes they will accept. Shipment of materials which still pose objective
hazards-regardless of their formal designation as "hazardous" or "non-hazardous"~couid
both breach these agreements and undermine facility integrity.

We urge the Agency to revise the current proposal, at least as it relates to the offsite
shipment of "non-hazardous" media. We are convinced that media below the 10-3 Bright
Line, but still above the 10"6 exit level proposed for HWIR process wastes, must be
restricted to permitted Subtitle C facilities when shipped off-site for treatment or disposal.
Absent this requirement, we anticipate widespread worker-safety and site contamination
problems at off-site Subtitle D facilities and significant expansion of the very kinds of site
cleanup problems that the contaminated media rule is designed to remedy.

Additionally, the rule must require that manifests or shipping papers meeting certain
minimum standards accompany off-site shipments of media above the 10-6 HWIR
process waste exit levels. These documents must alert Subtitle D facilities to the nature
and constituent concentration levels of the media to provide them with a reasonable
opportunity to determine whether they are prepared to accept this material and whether
any special handling or facility operating requirements may be needed. While these
facilities may be fully capable of safely managing these materials and of making
contractual arrangements responding to the characteristics of this new category of waste.
they will not be able to take these steps unless they are fully informed about the nature of
the media they are receiving." (88)

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take action to exempt or exclude some or all remediation waste from the RCRA Subtitle C system.
the Agency will address issues associated with off-site management of so called, "non-hazardous"
remediation waste at that time.

EPA notes that the final rule does allow opportunities for contaminated media to be treated to site-
specific, risk-based minimize threat levels instead of the 90% capped by lOxUTS soil treatment
standards in some circumstances. EPA believes this will continue to protect Subtitle D facilities
for two reasons. First, regulations governing the site-specific, risk-based minimize threat variance
require that these decisions be made within the range of values the Agency has found generally
acceptable in hazardous waste cleanup programs. I.e., for carcinogens, alternative treatment
standards should ensure constituent concentrations that result in the total excess risk from any
medium to an individual exposed over a lifetime generally falling within a range from 10J to 106.
using 10"6 as a point of departure and with a strong preference for treatment to that level: for non-
carcinogenic effects, alternative treatment standards should ensure constituent concentrations that
an individual could be exposed to on a daily basis without appreciable risk of deleterious effect
during a lifetime; at a minimum, the hazard index should generally not exceed one (1). Second.
soils treated to comply with the soil treatment standards (or with alternative soil treatment
standards established through a site-specific, risk-based minimize threat variance) will continue to
be regulated as hazardous waste unless it is determined that they no longer contain hazardous
waste and/or no longer exhibit a characteristic of hazardous waste. Since EPA is not, at this time.
taking action to codify the contained-in policy, the policy will continue to be implemented by EPA
regions and authorized states on a site-specific basis, considering current Agency guidance. The
Agency has advised that contained-in determinations be made using conservative, health-based
levels derived assuming direct exposure pathways. See, for example, 61 FR at 18795 (April 29.
1996) and other sources cited therein. The contained-in policy has been in existence and in use for
contaminated soil since, at least, 1990; in the past eight years of implementation. EPA is not aware
of complaints from Subtitle D facility owners or operators that states or EPA regions were
improperly determining that soil did not contain hazardous waste or that any given volume of
"contained-out" soil was not appropriate for disposal at a Subtitle D facility.

One commenter asserts that EPA has failed to account for the risks of leachate-contaminated
groundwater in setting the Bright Line levels for soils. Thus, characteristic media contaminated in
concentrations below the bright line may still pose threats. [Also see Chapter 21 comments on
specific constituents.]

• "Prior to this proposal, EPA had always maintained that contaminated media are regulated
. under Subtitle C if they exhibit a hazardous waste characteristic. See 57 Fed. Reg. 21450.
21453 (May 20, 1992). Likewise, EPA has always stated that contaminated media cease to
be regulated as hazardous waste only when sufficient quantities of hazardous constituents
are removed so that the media ceases to exhibit a hazardous characteristic. Id.

EPA has made a serious mistake by now proposing that contaminated media exhibiting a
hazardous characteristic that is below the Bright Line will be exempt from Subtitle C
control. This position is indefensible because EPA has failed to account for the risks of

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leachate-contaminated groundwater in setting the Bright Line levels for soils. The Toxicity
Characteristic reflects, at least on a limited basis, the risks posed by leaching of hazardous
constituents from wastes and the ingestion of contaminated drinking water. If EPA ignores
these risks, the human health and environmental threats posed by waste leaching are
essentially unaddressed in this proposal. Moreover, the Ignitability. Corrosivity. and
Reactivity Characteristics apply due to their inherent hazardous properties, regardless of
hazardous constituent concentrations. EPA's proposal to ignore these hazardous
characteristics is unlawful and unacceptable.

The preamble states (Page 18796/1): "EPA recognizes that today's rule would have the
effect of excluding from Subtitle C regulation some media that until now have been
considered hazardous—i.e.. media that exhibit a hazardous waste characteristic, with
constituent concentrations below the Bright Line ...." As its justification, EPA claims that:

"[I]t is the concentration levels of the individual hazardous constituents in the media that
determine how the media will be regulated under Part 269. The origin of the constituents
(i.e.. listed wastes or characteristic hazardous wastes) is irrelevant in comparing measured
levels in the media with Bright Line concentrations and/or contained-in concentrations. "

This statement is clearly wrong. The origin of the hazardous constituents in contaminated
media is not "irrelevant" if EPA fails to set Bright Line levels that take account of the very
risks of soil-leachate-groundwater exposure that the Toxicity Characteristic is intended to
address. In that case, applying the Toxicity Characteristic is very relevant because it is the
only way that risks posed by leachate-contaminated media will be directly addressed.
Alternatively, EPA can revise the Bright Line numbers—as urged later in these
comments—to account for leachate contamination. Unless EPA takes one action or the
other, the agency's stated rationale for making characteristically hazardous media eligible
for exemption from Subtitle C is clearly, and alarmingly, incorrect.

A good example of our concerns is media contaminated with lead. EPA has proposed a
Bright Line level of 4000 ppm for lead. ETC member companies have treated
lead-contaminated soils with 2500 ppm lead that have yielded pre-treatment TCLP levels
of 117.47 mg/T - 23 times higher than the 5 ppm characteristic level for lead. These
contaminated soils are clearly hazardous by virtue of their leachability level, and should
not be eligible for exit from Subtitle C controls and treatment requirements.

EPA's proposal is also flawed because it will allow significant volumes of
characteristically hazardous media to be left untreated, posing significant environmental
threats. This real-world impact can be seen by examining the data in EPA's Economic
Assessment for the proposal. The volume of contaminated media below the Bright Line
that would exhibit a hazardous characteristic can be calculated as 709,700 tons/year
(Economic Assessment, page 4-32. Exhibit 4-19). This constitutes only 9.3% of the
volume of RCRA and CERCLA soil that is remediated annually, yet it comprises media
posing significant environment threats from the potential to contaminate groundwater.
EPA projects that 68% of the contaminated soil below the Bright Line will be managed in
Subtitle D landfills, capped, or left in place with no remediation at all. (Economic
Assessment, page 3-26, Exhibit 3-6). Only 32% of contaminated soil below the Bright
Line is projected to receive any treatment. Thus, applying these figures, EPA must

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conclude that 484.725 tons/year of contaminated soil exhibiting a hazardous characteristic
will be sent to unsuspecting Subtitle D landfills, or will be capped or left in place with no
treatment.

EPA's approach creates disincentives to necessary and cost-effective treatment of
characteristically hazardous contaminated media. An illustration may be helpful. Many
generators operate integrated manufacturing facilities that include electroplating
operations, and that have areas of contaminated media onsite. If the media is subjected to a
TCLP and the extract exceeds the 1.0 mg/'l regulatory level the media would be
characteristically hazardous for cadmium (D006). However, the generator may possess
constituent data on the levels of Cd. Cr. Ni, CN. Pb. and Ag as well. As indicated in the
table below, these constituents were the basis for the listing of F006, a waste from
electroplating operations.

FO06 - CONSTITUENTS FORMING THE BASIS FOR LISTING SELECTED REGULATORY
VALUES FOR CONSTITUENTS

F006 CHARACTERISTIC
BRIGHT
CONSTITUENT UTS REGULATORY LEVEL LINE VALUE
Cd 0.19 1.0 390
Cr 0.86 5.0 3900
CN-Total 590 NA NA
CN-Amenable 30 NA 10,000
Pb 0.37 5.0 4000
Nl 5 NA 10,000
Ag 0.3 NA 3900

As the generator would surely note, the levels of Ni and CN exceed the Bright Line levels
for those constituents. Although the contaminated media is characteristic for cadmium, the
cadmium level does not exceed the Bright Line value. Significantly, the generator must
make a waste classification decision regarding this contaminated media. As shown by the
table above, under EPA's approach, the generator actually has a strong incentive not to
"look too closely" to determine if the media is contaminated with F006 listed waste. By
retaining the characteristic classification only, the generator may exit Subtitle C without
treatment since the constituent of concern, cadmium, is below the Bright Line. The fact
that Ni and Cn are above the Bright Line is irrelevant under EPA's flawed approach to
characteristically hazardous media. Had the generator properly classified the media as
containing F006 waste, the generator would be obligated to treat the contaminated media
to HWIR treatment standards for Nl and Cn and any other constituents forming the listing
basis that exceed lOxUTS. Yet the generator, under EPA's approach, would have a clear
incentive to skew the classification to avoid treatment.

Another major problem is that EPA proposes to define the Bright Line relevant only to
Appendix VII constituents. As discussed elsewhere in these comments, Appendix VII is
not an inclusive list for ail of the hazardous constituents that are typically found in a given
listed waste. In addition, there are 43 potential characteristic constituents. In contrast, the
Appendix VII list, for a given listed waste, can range from only 1 to 20 constituents, and

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for most listed wastes is less than 5 constituents. Therefore, in defining the media
management relative to knowledge of a given listed waste code and Appendix VII. the full
list of 43 possible characteristic constituents are not being addressed.

To illustrate this point, consider a contaminated media from a K001 waste and the
constituent benzene. Because benzene is not included on Appendix VII, under EPA's
current proposal for media, the media would not have to be assessed against the Bright
Line with regard to benzene. However, as shown in EPA's background document for LDR
treatment standard development for K001 waste, benzene is typically present in these
wastes at levels of 51 to 83 ppm (see RCRA Docket Document#LDR8-S0358). Such
waste would likely leach levels of benzene exceeding the characteristic level of 0.5 ppm.

A related point is that many of the Bright Line levels are set at total constituent levels that
would likely exceed the characteristic leachate level. Consider for example the benzene
Bight Line level of 500 ppm. The solubility of benzene in water is 0.188% (see Merck
Index). The TCLP leachate agent used for the characteristic test has acetic acid, which
should increase the solubility of benzene. Therefore, at a solubility of 0.188%, a minimum
amount of benzene leached from a waste just below the bright line is 0.9 ppm. This
exceeds the characteristic level of 0.5 ppm. The Bright Line for benzene would have to be
at least below 260 ppm in order for the characteristic level not to be exceeded.

For these reasons, the ETC strongly urges EPA to adhere to its previous position that
characteristically hazardous media must be subject to Subtitle C control. In the alternative.
we believe that EPA should revise the Bright line concentrations for contaminated soils
based on a groundwater exposure scenario in accordance with the attached report by
Ogden Environmental Services. If the Bright Line numbers adequately account for
leachate contamination, then we would agree that the Toxicity Characteristic levels would
be superseded by these Bright Line concentrations." (88)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present in any given contaminated soil and are
found at initial concentrations greater than ten times the universal treatment standard. If, in the
future, EPA takes action to establish a bright line, EPA will address concerns regarding the
relationship of the bright line to the soil treatment standards (or TCLP regulatory levels) at that
time.

Under the current, unchanged, regulations environmental media which exhibits a hazardous
characteristic must be managed as a hazardous waste until the characteristic has been eliminated.
One commenter requests clarification on the management requirements for remediation waste that
falls below the Bright Line but fails the Toxicity Characteristic Leaching Procedure (TCLP).

• "Westinghouse requests clarification on the management requirements for remediation
waste that falls below the Bright Line but fails the Toxicity Characteristic Leaching
Procedure (TCLP). There are numerous examples of this in the appendices for soil and
groundwater. For example, benzene (D018) has a TCLP value of 0.5 ppm. The Bright

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Line value for benzene in soils is 500 ppm. Tetrachloroethylene (D039) has a TCLP value
of 0.7 ppm. The Bright Line value for tetrachloroethylene in soils is 10.000 ppm." (35)

Response: At this time. EPA is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste, including
contaminated soil, to exit large portions of the RCRA Subtitle C system. EPA is also not. at this
time, going forward with the portions of the HWIR-Media proposal which would have established
a "bright line" to distinguish between higher and lower risk remediation wastes. As discussed in
the preamble to today's action, the Agency continues to believe that legislative action to address
the application of RCRA Subtitle C regulations, especially LDRs, to remediation waste is needed.
If legislative action is forthcoming, EPA will likely re-examine application of LDRs to
contaminated soil - and remediation waste more generally - at that time. If there is no legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the
application of LDRs to contaminated soil or other remediation wastes. If, in the future, EPA does
take action to exempt or exclude some or all remediation waste from the RCRA Subtitle C system.
the Agency will address issues associated with off-site management of so called, "non-hazardous"
remediation waste at that time.

Under current regulations, therefore, contaminated soil which exhibits a characteristic of
hazardous waste must be managed as if it were hazardous waste.

One commenter indicates that EPA lacks authority under the statute and the Agency's
implementing regulations for application of characteristics to contaminated media.

• "EPA currently regulates contaminated media as hazardous under the Agency's
"contained-in" policy. Under the contained-in policy, media contaminated by a listed
hazardous waste, any mixture of the listed hazardous waste and another solid waste, or any
residue from management of a listed hazardous wastes are hazardous until they are
determined no longer to "contain" the waste or residue. By extension of this policy, EPA
considers contaminated media that exhibit any characteristic to be subject to management
as hazardous waste until the media no longer exhibit any characteristic.

Contaminated media rarely exhibit the characteristics of corrosivity, ignitability, or
reactivity. However, application of the toxicity characteristic to soil and groundwater at
industrial facilities, including mineral processing plants, can readily stigmatize as
hazardous waste large quantities of such media, thereby significantly and unnecessarily
compounding the burdens of remedial actions at such facilities. This is made even more
difficult by the fact that, in certain areas, uncontaminated soil can exhibit a characteristic.

In fact, EPA lacks authority under the statute and the Agency's implementing regulations
for application of characteristics to contaminated media. As EPA's own contained-in
policy recognizes, soil and groundwater and other environmental media are not "solid
wastes." Yet, EPA's waste characterization regulations apply only to "solid wastes." See
40 CFR 261.20(a). EPA can achieve the purpose of its proposal—at least as applied to
contaminated media exhibiting a characteristic—by clarifying that such media never enter
the hazardous waste accountability system. Nonetheless, the Agency can prescribe
reasonable management requirements for contaminated media as part of any site-specific
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cleanup plan, without encumbering the process with highly prescriptive hazardous waste
management standards." (75)

Under current regulations, therefore, contaminated soil which exhibits a characteristic of
hazardous waste must be managed as if it were hazardous waste. EPA is not persuaded that the
contained-in policy is somehow contradictory to this approach, as failure of one of the hazardous
waste characteristic tests seems, to the Agency at this time, to be a reasonable indication of
whether or not any given environmental medium contains hazardous waste. The commenter is
also referred to various responses dealing with the issue of hazardous constituent background
concentrations in soil.

One commenter requests clarification that EPA intends to allow land disposal of characteristic
wastes even though the treatment may not have eliminated the hazardous characteristic.

• "The proposed language indicates that soils that exhibit the characteristic of ignitability,
corrosivity, or reactivity must be treated by deactivation technologies to eliminate those
characteristics. All other soils that are characteristically hazardous must be treated for all
constituents listed in Table UTS of 40 CFR 268.48. The soils must be treated to achieve
either 90 percent reduction or concentrations less than 10 times the UTS levels. It is
possible that soils treated in conformance with these LDR standards could continue to
exhibit the hazardous characteristic. Westinghouse requests clarification that EPA intends
to allow land disposal of such soils even though the treatment may not have eliminated
the hazardous characteristic. [EPA policy (see 61 FR 18795) is for contaminated media
(that are mixtures of media and characteristic wastes) to cease to be regulated as hazardous
waste when sufficient quantities are removed so that the media ceases to exhibit the
characteristic.] " (35)

Response: This interpretation is correct. The soil treatment standards do not require elimination
of the characteristic of toxicity when contaminated soil exhibits this characteristic of hazardous
waste. Treatment of the characteristic constituent to meet the soil treatment standards (i.e., ninety
percent capped at ten times the UTS) is required. In addition, soil which continues to exhibit a
characteristic of hazardous waste after treatment must continue to be managed as hazardous
wastes, subject to all applicable RCRA Subtitle C requirements.

One commenter suggests that both CERCLA and the RCRA corrective action processes can
manage contaminated media with concentrations above the Bright Line.

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• "While EPA's proposal suggests that contaminated media with concentrations above the
Bright Line cannot be managed safely outside of Subtitle C. both CERCLA and the
RCRA corrective action processes are clearly capable of handling wastes of any
concentrations. TCLP levels were intended to identify wastes that would be hazardous if
improperly managed: wastes already being managed under a CERCLA or RCRA
corrective action remedy are not "unmanaged" and should not be required to meet the
prescriptive requirements of Subtitle C." (75)

One commenter supports EPA's proposal to allow states or federal authorities to specify the
appropriate requirements for wastes below Bright Line levels.

• "API supports EPA's proposal in that it does not set cleanup standards for wastes below
Bright Line levels, but allows states or federal authorities to specify the appropriate
requirements. API supports this approach, particularly if states are given the maximum
opportunity to oversee such determinations. As EPA has acknowledged, states have made
great strides and enormous progress in the area of hazardous waste regulation. Id. at
18819. To put them in charge, to harness their expertise, and to allow them to exercise
their professional judgment in determinations of adequate levels of treatment for
contaminated media below the Bright Line would be the most appropriate delegation of
authority that EPA could make. Regulated entities would have a better sense of a state's
likely response and could depend on fairly consistent oversight. As stated previously,
however. API maintains that wastes below the Bright Line should not be eligible for a
"contained-out" determination, but should be automatically "contained-out."" (39)

Response: EPA appreciates this support of the proposed approach, however, EPA is not, at this
time, taking action on the portion of the HWIR-Media proposal that would have established a
"bright line" to distinguish between higher- and lower-risk contaminated media, including
contaminated soil. The new soil treatment standards promulgated today will apply to all hazardous
contaminated soil and will require treatment for all underlying hazardous constituents that are
reasonably expected to be present in any given contaminated soil and are found at initial
concentrations greater than ten times the universal treatment standard. If, in the future, EPA takes
action to establish a bright line, EPA will address concerns regarding the relationship of the bright
line to the soil treatment standards at that time.

One commenter indicates that the rule should require a waste screening program for wastes
entering Subtitle D landfills and also manifesting and record keeping for wastes that exit Subtitle
C under an RMP.
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• "SWANA has a number of concerns regarding the policy provisions under the proposed
rule. These include:

1. The rule is bereft of any detailed requirements regarding the manifesting and record
keeping for wastes that exit Subtitle C under an RMP. The requirements for RMPs
proposed Part 269.40 and 269.41 contain no language requiring records to accompany
contaminated media to final off-site disposal facilities. It is clear, under the proposed
policies for this rule, that MSWM facility owners/operators will have little opportunity to
know what the characteristics of the wastes are that have arrived at the gate. Having
sufficient information to make judgments of the acceptability of the wastes for a specific
MSWM facility can only be done when there is sufficient information about the
characteristics of the wastes. SWANA strongly recommends that the Agency require a
manifesting of these exited wastes, with sufficient information about the characteristics of
the exited wastes for MSWM facilities to make a proper determination as to their
acceptability or unacceptability.

2. The rule is totally silent on the need for Subtitle D landfill facilities to implement and
document a waste screening program to determine whether or not these exited wastes can
be accepted at their facilities under their existing permit conditions. The rule should
require such screening and coupled with the need for manifesting and waste characteristic
information mentioned in # 1 above, should assure that MSWM Subtitle D landfills will
not inadvertently violate any Subtitle D rule. Our experience would indicate that the waste
screening provisions of Subtitle D landfill rules appears to be one of the least paid
attention to by both State agencies and EPA. SWANA strongly recommends that the
Agency include language in the rule requiring that these wastes be screened at Subtitle D
landfills before they are accepted." (84)

Response: At this time. EPA is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste, including
contaminated soil, to exit large portions of the RCRA Subtitle C system. As discussed in the
preamble to today's action, the Agency continues to believe that legislative action to address the
application of RCRA Subtitle C regulations, especially LDRs. to remediation waste is needed. If
legislative action is forthcoming, EPA will likely re-examine application of LDRs to contaminated
soil -- and remediation waste more generally — at that time. If there is no legislation. EPA may
choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to contaminated soil or other remediation wastes. If, in the future, EPA does take action
to exempt or exclude some or all remediation waste from the RCRA Subtitle C system, the Agency
will address issues associated with tracking and acceptance by Subtitle D facilities of so called,
"non-hazardous" remediation waste at that time.

One commenter requests clarification on complying with the LDR tracking and record keeping
requirements for nonhazardous contaminated media that are still subject to LDRs.

• "EPA proposed in §269.10(b) that for hazardous and non-hazardous contaminated media
that remain subject to LDRs. the provisions of part 268 do not apply except for §§268.2
' through 268.7 and §268.50.
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DoD is concerned with the implementation of LDR notification requirements for
contaminated media wastes and considers EPA's proposed regulations vague on this issue.
There may be situations where contaminated media is determined to be non-hazardous but
LDRs attach to the waste and the generator must comply with LDR notification
requirements under §268.7. While not clearly stated in the proposed rule. DoD assumes
that contaminated media determined to be non-hazardous can be managed at subtitle D
facilities. DoD requests clarification on complying with the LDR tracking and record
keeping requirements for non-hazardous contaminated media that are still subject to
LDRs. For example, if the generator sent non-hazardous contaminated media (that is skill
subject to the LDRs) to a subtitle D facility for treatment and disposal, would the LDR
notice still accompany the shipment? Would the subtitle D facility be required to maintain
copies of the LDR notice? If after treatment, the waste did not meet applicable treatment
standards, would the subtitle D facility be required to provide another LDR notice to the
subsequent treatment, storage, or disposal facility?

DoD also notes that LDR notification requirements in §268.7 were designed to relate to
treatment standards in §268.40 and are not suitable for media. 40 CFR 268.7 requires the
notification to list applicable EPA hazardous waste numbers, any applicable subcategory.
waste constituents that will be monitored (unless all are being monitored), whether the
waste is a wastewater or non-wastewater. and requires the attachment of waste analysis
data. It is requested that a separate paragraph be added to 268.7 to specifically address
media. It is recommended that the nonfiction reference the alternative treatment standards
applicable to media in 40 CFR 269.30; EPA hazardous waste numbers (waste codes) for
which LDRs have attached; underlying hazardous constituent that must be monitored (if
any); a statement that the waste must be reduced by 90 % or below 10 times the UTS prior
to land disposal; and a statement regarding whether or not the waste has been designated
as non-hazardous contaminated media or whether it has been designated as hazardous
contaminated media." (97)

Response: The Agency has clarified in today's final rule that contaminated soil subject to the land
disposal restrictions must comply with the same record keeping and reporting requirements as
other wastes subject to the land disposal restrictions. That is. the record keeping and reporting
requirements of 40 CFR 268.7 will apply. EPA has clarified this in the final regulations by adding
appropriate record keeping requirements for contaminated soils to the tables in 40 CFR 268.7(a)
and 40 CFR 268.7(b). These rules specify that for contaminated soil, generators and or treaters
must include the following information with their land disposal restriction paperwork: the
constituents subject to treatment as described in 40 CFR 268.49(d) and this statement, "this
contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit a
characteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as
provided by 268.49(c)." Note that because in some cases contaminated soil will continue to be
subject to LDRs even after it has been determined not to or no longer to contain listed hazardous
waste (or de-characterized), the statement includes a notification of whether the soil is still
considered hazardous. This is consistent with the approach the Agency used when establishing
land disposal restriction treatment standards for hazardous contaminated debris. DOESN'T THIS
SAME RESPONSE ALSO BELONG BACK WITH THE RESPONSE
TO ETC ABOUT THEIR CONCERN THAT SUBTITLE D OPERATORS GET NOTICE OF
NATURE OF WASTE?
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One commenter recommends that EPA include criteria for management controls in the rules on
below-Bright Line contaminated media, and must provide mechanisms for enforcement of those
controls.

• "It is unclear in the proposed rule what management controls are to be used to ensure that
below-Bright Line contaminated media will not pose risks. Institutional controls (such as
deed restrictions) may not be enforceable for state agencies. EPA must include criteria for
management controls in the rules and must provide mechanisms for enforcement of those
controls." (121)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soil. The new soil treatment standards promulgated today will
apply to all hazardous contaminated soil and will require treatment for all underlying hazardous
constituents that are reasonably expected to be present in any given contaminated soil when such
constituents are found at initial concentrations greater than ten times the universal treatment
standard. If. in the future. EPA takes action to establish a bright line. EPA will address concerns
regarding enforcement of RCRA requirements for material determined to be below the bright line.
as necessary.

• "What the proposed HWIR media rule does not address is a minimum treatment standard
for non-hazardous contaminated media. The State of Utah recommends that a minimum
treatment standard be established for non-hazardous contaminated media destined for
disposal at a Subtitle D landfill, the minimum treatment standard should meet one of the
following risk standards: Carcinogenic should be <10 "* and the Hazard Index should be
<10. This approach is consistent with Utah's risk-based closure rule which requires active
remediation when the risk is >10"4 and site management between 10 ~* and 10 ~6." (L02)

• "However, there are specific areas where we share a concern as to the impacts and
complexities potentially created by the HWIR-media rule." (L02)

Response: At this time. EPA is not taking action on the portions of the HWIR-Media proposal
which would have provided opportunities for some or all remediation waste, including
contaminated soil, to exit large portions of the RCRA Subtitle C system. The Agency is also not.
today, taking action on the portions of the HWIR-Media proposal which would have established a
•'bright line" to distinguish between higher and lower risk remediation waste. As discussed in the
preamble to today's action, the Agency continues to believe that legislative action to address the
application of RCRA Subtitle C regulations, especially LDRs, to remediation waste is needed. If
legislative action is forthcoming, EPA will likely re-examine application of LDRs to contaminated
soil ~ and remediation waste more generally — at that time. If there is no legislation, EPA may
choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to contaminated soil or other remediation wastes. If, in the future. EPA does take action
to exempt or exclude some or all remediation waste from the RCRA Subtitle C system, the Agency
will address issues associated with treatment requirements for so called, "non-hazardous"
remediation waste, as necessary, at that time. However, the site-specific, risk-based, minimize
threat variance established in the final rule contains certain features that are consistent with this
comment.
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l.D EXTENDING SOIL-SPECIFIC LDR STANDARDS TO OTHER REMEDIATION
WASTES

I.D.I Debris

Several commenters support the application of HWIR-media rule soil-specific standards to debris.
[Also see other related sections of this document, such as Chapter 5 definitions of media and
remediation waste.]

• "To the extent that EPA requires the LDRs to be applied to remediation wastes.
remediation waste-specific standards should be developed and utilized. As EPA has
acknowledged, remediation wastes often are quite different in nature than the process
wastes for which generic LDR standards have been developed. NMA supports EPA's
decision to establish soil-specific LDR standards that take into account the "distinct
treatment issues" posed by this material. See 61 Fed. Reg. at 18,806.

EPA has stated that it is considering applying the soil-specific LDR standards to other
remediation waste, id., and the Agency has requested comment on whether debris should
be subject to the treatment standards proposed for soils in the HWIR-media rule. NMA
supports the application of HWIR-media rule soil-specific standards to debris. In some
cases, debris will be virtually identical to soil materials, other than with respect to particle
size. Use of the soii-ds will not only simplify the regulations applicable to debris at
remediation sites, needed and warranted relief from the overly stringent Debris Rule
LDRs.

EPA should only require treatment of the hazardous constituents that originated from the
contaminating waste to the extent that the LDRs are to be applicable to remediation waste.
NMA supports EPA's proposal that remediation waste be subject to treatment only for
those hazardous constituents that originated from the hazardous waste and for which
treatment standards have been established. 61 Fed. Reg. at 18.852 (to be codified at 40
C.F.R. § 269.30(g)); see also id. at 18.809. NMA agrees with EPA that the duty to treat
remediation wastes should only attach to constituents for which treatment would have
been required in the first place." (20)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed remediation wastes other than soil (e.g., debris). The Agency
continues to believe that legislative action is necessary to address application of RCRA hazardous
waste management requirements to hazardous remediation wastes, including hazardous debris. If
legislation is not forthcoming, EPA may take additional regulatory action. If, in the future, EPA
takes action on the portions of the proposal that would have addressed hazardous debris, it will
consider these comments, as necessary, at that time.

Hazardous debris, therefore, will continue to be subject to the existing alternative treatment
standards for debris.

Regarding constituents subject to treatment. Despite this support of the proposed approach, on
further consideration. EPA was persuaded by other comments that it is prudent to apply the logic
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of the Chemical Waste court both to soil contaminated by listed hazardous waste and to soils
which exhibit a characteristic of hazardous waste.

As the Agency explained in the 1990 proposal, contaminated soils are potentially contaminated
with a wider range of hazardous constituents than process wastes -- in no small part because they
generally reflect uncontrolled disposal settings. 58 FR at 48124 (September 14. 1993). Since this
is the type of circumstance addressed in the Chemical Waste opinion, the Agency is persuaded that
it is prudent to apply the logic of the Chemical Waste opinion and require treatment of all
underlying hazardous constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16 -
18 (D.C. Cir 1992). Therefore, today's final rule requires that all contaminated soil subject to the
LDRs be treated to achieve the soil treatment standards for each underlying hazardous constituent
reasonably expected to be present in the soil when such constituents are initially found at
concentrations greater than ten times the universal treatment standard. Characteristic soil must
also be treated, in the case of TC soil, for the TC constituent and. in the case of ignitable.
corrosive, or reactive soil, for the characteristic property.

• "p. 18813. col. 3 — EPA requests comments on whether the current LDR treatment
standards for hazardous debris remain appropriate or whether hazardous debris
should, instead, be subject to treatment standards similar to the standards in the
proposed rule for contaminated media, or whether some combination of the
standards would be most appropriate.

As stated in General Comment 3, DOE supports expanding the scope of the HWIR-media
rule to include hazardous debris and other non-media remediation wastes such as sludges.
This would allow inextricably mixed media and non-media remediation wastes to be
managed more efficiently under management requirements developed on a site specific
basis. Nevertheless, in circumstances where hazardous debris is not generated as a result
of remedial activities per se. or is not inextricably mixed with media. DOE believes that
the current LDR treatment standards would remain appropriate, and should be explicitly
retained." (60)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed non-soil remediation waste (e.g., sludges, debris). The Agency
continues to believe that legislative action is necessary to address application of RCRA hazardous
waste management requirements to hazardous remediation wastes, including hazardous debris. If
legislation is not forthcoming, EPA may take additional regulatory action. If, in the future, EPA
takes action on those portions of the proposal it will consider these comments, as necessary, at that
time. EPA notes that the alternative LDR treatment standards for hazardous debris are not affected
by today's rulemaking. See, 40 CFR 268.45.

• "EPA discussed the scope of the HWIR-media proposal on page 18789 and proposed
§269.1. EPA is limiting the applicability of the rule to contaminated media for several

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reasons including: (1) the legal theory underlying the binary approach: (2) EPA's
cost/benefit analysis: (3) relief needed from the LDRs is more acute for contaminated
media than other remediation wastes; and (4) the proposed rule constitutes a major change
in the way covered materials are regulated and will require a "break-in" period while
regulators and the regulated community adjust to the new system.

Unless EPA adopts the unitary approach, DoD recommends that EPA include debris
within the scope of the of the final rule (as discussed by the hybrid approach) for the
following reasons: Distinguishing debris from contaminated media creates a more
complex regulatory regime by subjecting these wastes to different and varying regulatory
requirements. During cleanup operations, it often is difficult to separate remediation
wastes between media and non-media. Furthermore, because of the heterogeneous nature
of debris, representative sampling and analysis of debris and contaminated media also is
difficult to implement.

However. DoD recommends retention of the existing alternative LDR treatment standards
for hazardous debris in addition to inclusion of debris within the scope of the final rule.
Allowing the use of either approach, on site-specific basis, would provide facilities the
flexibility and ease of implementation originally sought by the proposed rule. DoD also
recommends EPA provide past contained-in determinations as supplemental information
to this rulemaking. This information is necessary as a reference for the regulated
community to evaluate in context of applying the proposed Bright Line to contaminated
media and debris.

If debris are included in the scope of the final rule, DoD would recommend that EPA
allow the results from sampling and analysis of media surrounding the debris to serve as
an adequate measure of debris contamination. This would simplify the sampling and
analysis of mixtures of contaminated media and debris." (97)

Response: EPA is not. at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed non-soil remediation waste (e.g., debris). The Agency continues to
believe that legislative action is necessary to address application of RCRA hazardous waste
management requirements to hazardous remediation wastes, including hazardous debris. If
legislation is not forthcoming, EPA may take additional regulatory action. If. in the future, EPA
takes action on those portions of the proposal it will consider these comments.

EPA notes that the alternative LDR treatment standards for hazardous debris are not affected by
today's rulemaking. See 40 CFR 268.45.

• "In conjunction with this approach to defining "remediation wastes," an issue arises
concerning how to address the established LDRs for hazardous debris vs. the proposed
methodology for addressing LDRs for contaminated media in this rule. Since hazardous
debris will be generated at sites other than those being remediated under federal or
authorized state oversight, the LDRs for hazardous debris should remain as they presently
are. However, through this rule, where hazardous debris is being managed as part of a
remediation project and meets the definition of "remediation waste." the Regional
Administrator/State Program Director should be authorized to allow the requirements of
this rule to be applied to hazardous debris as an alternative to 40 CFR 268. The present

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hazardous debris rule already allows some environmental media to be co-managed as
debris. The reverse should also be allowed and administered through an RMP or as an
exclusion pursuant to proposed 40 CFR 269A." (142)

Response: EPA is not. at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed non-soil remediation waste (e.g., debris) or established a remedial
action plan (RMP) to allow Agencies to oversee remedial action. The Agency continues to believe
that legislative action is necessary to address application of RCRA hazardous waste management
requirements to hazardous remediation wastes, including hazardous debris. If legislation is not
forthcoming, EPA may take additional regulatory action. If. in the future. EPA takes action on
those portions of the proposal it will consider these comments.

EPA notes that the existing alternative LDR treatment standards for hazardous debris are not
affected by today's rulemaking. See 40 CFR 268.45.

• "EPA's proposal to further restrict the applicability of the Bright Line approach to
remediation waste by excluding debris adds yet another source of complexity without
corresponding benefit. As EPA notes in the preamble:

"While EPA believes that the technologies specified for debris treatment are
generally compatible with most types of remedial activities, the Agency
recognizes that applying different regulatory schemes at the same site (one for
media and one for debris) may unnecessarily complicate cleanups and raise
cleanup costs without a discernible environmental benefit."

While we question EPA's contention that specified debris treatment technologies are
generally compatible with remedial activities, the Agency is certainly on target regarding
added complexity without benefit.

We note that many remedial settings have extremely heterogeneous conditions. For
example, many facilities have old landfills, often little more than trenches or a hole in the
ground, into which trash wastes, off-specification products, old equipment, process
wastes, wastewater treatment sludges, demolition rubble and soil cover were placed. These
materials are typically randomly mixed in place, and become even more so during
removal. Many of them would meet EPA's definition of debris. Further, many natural soils
contain large quantities of gravel and cobble size particles that would meet the debris
definition. EPA's proposed approach would require the segregation of these materials, and
their separate management in subtitle C, regardless of whether such segregation and
separate treatment/management is of any environmental benefit. This will simply
perpetuate the status quo impediments to remediation for many sites.

The proposed approach also fails to recognize common and emerging remedial practices.
For example, in soils washing technologies, larger soil particles are separated from the soil
matrix by mechanical means. These larger particles are usually water sprayed during the
separation to dislodge any adhered contaminated soil, and then managed as
uncontaminated. Under EPA's proposed approach those materials would have to continue
to be managed as hazardous waste and would be subject to additional, generally
unnecessary, treatment. In the emerging field of phytoremediation plants capable of

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concentrating certain materials are grown in contaminated soil and thereby extract
contaminants from the soil. Apparently under the Agency's proposed approach those
plants when harvested would have to be managed as hazardous debris.

Overseeing agencies should have the ability to establish appropriate treatment and
management requirements for debris on a case by case basis. We encourage EPA to
address all remediation wastes equally under HWIR, using the authorities it has clearly
articulated to decline to regulate as hazardous those materials for which mismanagement is
implausible, and to allow these remediation wastes to be managed with the maximum
amount of site-specific flexibility and local decision making. If treatment variances are
employed for debris we believe the variances presented in the proposal for soil are more
appropriate than those provided at 40 CFR 968.44(h)." (117)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed non-soil remediation waste (e.g., debris). The Agency continues to
believe that legislative action is necessary to address application of RCRA hazardous waste
management requirements to hazardous remediation wastes, including hazardous debris. If
legislation is not forthcoming. EPA may take additional regulatory action. If. in the future. EPA
takes action on those portions of the proposal it will consider these comments.

EPA notes that the existing alternative LDR treatment standards for hazardous debris are not
affected by today's rulemaking. See 40 CFR 268.45.

• "As discussed in the prior section III.A., the Agency has proposed to limit alternative
national LDRs to soils so it would not be available for other types of media or non-media.
If EPA is determined to withdraw the CAMU rule, then it should allow all types of
remediated wastes, debris and non-wastes to be eligible for the new soil specific LDR
standards." (76, 77)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal
which would have addressed non-soil remediation waste (e.g., debris) or established a remedial
action plan (RMP) to allow Agencies to oversee remedial action. The Agency continues to believe
that legislative action is necessary to address application of RCRA hazardous waste management
requirements to hazardous remediation wastes, including hazardous debris. If legislation is not
forthcoming, EPA may take additional regulatory action. If, in the future, EPA takes action on
those portions of the proposal it will consider these comments.

The existing alternative LDR treatment standards for hazardous debris are not affected by today's
rulemaking. See 40 CFR 268:45.

EPA notes that the Agency is not. in today's action, withdrawing the CAMU rule. CAMUs.
therefore, remain available, as appropriate, for management of remediation waste, including
hazardous contaminated soils and hazardous debris.

Other commenters do not support any changes in the current LDR requirements for debris.
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"EPA requests comment on whether current LDR treatment standards for hazardous debris
remain appropriate or whether hazardous debris should be subject to standards similar to
those for contaminated media.

TDS does not support any changes in the current LDR requirements for debris for the
following reasons:

• "The current debris standards already provide a significant amount of flexibility.
Generators can select from a variety of approved treatment technologies (e.g.
Technology Standards), or may treat debris where appropriate to the LDR
treatment standards applicable to the constituents present. In many cases, the use
of specified technologies can result in the debris being rendered non-hazardous.
and therefore eligible for disposal in a subtitle D unit. In addition, the debris
standards provide wide ranging flexibility in assessing mixed waste by allowing
for determination of any given waste stream as debris if it is > 50% debris by
visual inspection. This allows for use of the less stringent debris treatment
technologies on the entire mixture. In any case, where treatment technologies are
not appropriate to the type or disposition of a specific debris waste stream, the
generator may gain relief by application to EPA for a variance from the treatment
standard under 268.44."

• "Many subtitle C facilities have invested heavily in debris management systems
and, including facilities and equipment for size reduction, sorting and processing;
as a result an abundance of capacity is available to manage all types of hazardous
debris."

• "Encapsulation technologies are applicable to all forms of debris, and have no
restrictions on constituent type or concentration Due to the convenience, cost
effectiveness, and available capacity of encapsulation technologies, the use of
more expensive and time consuming technologies has been minimized.

• Such techniques are currently priced in the market in the range of $70 to
S250/ton. The footnote (#25) on page 18813 citing a cost of $3200 to S6000/ton is
not representative of market conditions. Debris, even in a location as remote as
Alaska, can be readily removed and transported to a commercial Subtitle C facility
in the lower 48 states for a shipping charge of approximately $300 - 350/ton,
based on TDS S own experience in shipping waste from Alaska to its Idaho
Subtitle C facility, ESII. The upper market price for encapsulation at $250/ton
yields a total cost in the range of $600/ton, not $3200 to $6000/ton.

• Given that the LDR's for debris are have been implemented for over 4 years. TDS
sees no reason why continued adherence to these rules should 'unnecessarily
complicate' any cleanups. Indeed, changing the rules at this time would seem to be
an invitation to unnecessary confusion. It would also be a disincentive to
commercial services providers investing in services capabilities to meet regulatory
requirements. Such disincentives result in less capacity being made available.
justifying longer variances in the hope that rules will change, undermining the
ability to implement regulations." (25)

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Response: EPA appreciates this support of the alternative LDR treatment standards for hazardous
debris.

EPA is not. at this time, taking action on the portions of the HWIR-Media proposal which would
have addressed non-soil remediation waste (e.g.. debris) or established a remedial action plan
(RMP) to allow Agencies to oversee remedial action. The Agency continues to believe that
legislative action is necessary to address application of RCRA hazardous waste management
requirements to hazardous remediation wastes, including hazardous debris. If legislation is not
forthcoming, EPA may take additional regulatory action. If. in the future. EPA takes action on
those portions of the proposal it will consider these comments.

The existing alternative LDR treatment standards for hazardous debris are not affected by today's
rulemaking. 40 CFR 268.45.

• "As proposed the Agency has not proposed to include debris within the "Bright Line"
approach. WMX agrees with this decision, consistent with its comments in section III.F."
(104)

Response: EPA appreciates this support of the proposed approach: however, the Agency is not. at
this time, taking action on the portions of the HWIR-Media proposal which would have addressed
non-soil remediation waste (e.g., debris) or established a remedial action plan (RMP) to allow
Agencies to oversee remedial action. The Agency continues to believe that legislative action is
necessary to address application of RCRA hazardous waste management requirements to
hazardous remediation wastes, including hazardous debris. If legislation is not forthcoming, EPA
may take additional regulatory action. If. in the future, EPA takes action on those portions of the
proposal it will consider these comments.

The existing alternative LDR treatment standards for hazardous debris are not affected by today's
rulemaking. See 40 CFR 268.45.

1.D.2 Soils Not Managed Under an Approved RMP

A few commenters support applying soil-specific LDR standards to soils not managed under an
approved RMP.

• "The Agency solicited comments regarding whether it would be appropriate to extend the
proposed 90% or 10 x UTS treatment standards to all hazardous contaminated soils, as
opposed to limiting them to soils managed under an approved RMP. 61 Fed. Reg.
18813/2. We believe this should be appropriate, so long as the materials will be managed
in a protective manner that assures they are not hazardous. Such materials again should
qualify for a conditional exclusion from Subtitle C requirements." (112)

Response: On further consideration of the issue and in response to comment, EPA agrees that the
new soil treatment standards should apply to all hazardous contaminated soil and has adjusted the
final regulations accordingly. This issue is discussed in more detail in the preamble to today's
final rule.
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• "Flying J also supports the application of less stringent treatment standards (e.g.. 90%/10 x
UTS) to all hazardous contaminated soils instead of limiting it to soils managed under an
RMP. The standard would be particularly useful with regard to the disposal of hazardous
contaminated media at a permitted hazardous waste landfill. It makes no sense that soils
containing the same contaminants but managed under an RMP would be subject to less
stringent treatment standards, while soil removed and disposed at a hazardous waste
landfill without an RMP would be governed by stricter treatment standards. The two
different sets of regulatory standards would result in a disincentive to remove soils that are
hazardous waste." (66)

Response: On further consideration of this issue and in response to comment. EPA agrees that the
new soil treatment standards should apply to all hazardous contaminated soil and has adjusted the
final regulations accordingly. This issue is discussed in more detail in the preamble to today's
final rule.

• "... the extension of the modified LDRs (90% reduction or 10 times the UTS) to all
hazardous contaminated soils, instead of limiting them to soils managed under an
approved RMP. One example would be where a product spill occurs and affected soils and
groundwater need to be managed in a timely manner: the modified LDRs would be more
appropriate. It may be too much material to be sent off-site for incineration (limited
incineration capacity, limited funds), and other technologies (e.g. bioremediation. soil
washing, or thermal desorption) could be quickly and effectively utilized to treat the
contaminated soil. Currently. RCRA LDR regulations can be an obstacle to timely.
efficient remediations of product spills." (98)

Response: On further consideration of this issue and in response to comment, EPA agrees that the
new soil treatment standards should apply to all hazardous contaminated soil and has adjusted the
final regulations accordingly. This issue is discussed in more detail in the preamble to today's
final rule.

• "The Agency requests comment on whether it would be appropriate to extend the generic
LDR treatment standards of 90% reduction in the concentration of a hazardous constituent
and/or constituent-specific concentration level of 10 times the LDR universal treatment
standard contained in part 268 proposed for hazardous contaminated soils, to all
contaminated soils undergoing remediation instead of limiting the new treatment standard
to only soils managed under an approved RMP.

Comment: It is appropriate to apply the generic LDR soil treatment standard of 10 times
LDR universal treatment standards to all contaminated soils generated during any cleanup
and not just to those soils managed under a RMP. However, it is not appropriate to apply
the 90% constituent-specific reduction standard to contaminated media generated by a
remedial activity that does not have direct oversight by the overseeing authority.

The 10 times LDR-UTS standard is numerically defined and straight forward. There .
appears to be no need for an overseeing authority to indirectly approve the use of the
defined standard through approval of a RMP. In addition, facility owners/operators are
accustomed to implementing regulatory standards with little oversight from the state and
should not have difficulty in implementing this standard. Generators and facility operators

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implement standards everyday in the context of the current LDR program and the
hazardous waste characteristics regulatory approach. Furthermore, by making this generic
LDR soil treatment standard (10 times LDR-UTS) eligible for use in all types of remedial
activities, cleanups of contaminated sites will be expedited.

The use of the 90% reduction in hazardous constituents generic LDR treatment standard
should be limited for use to only those soils managed under an approved RMP. Agency
oversight is necessary to assure that the treated soil still does not contain unacceptable
concentrations of hazardous constituents that may warrant further treatment." (L01)

In addition, EPA has made two changes from the proposal to strengthen the soil treatment
standards: first, EPA has modified its approach to constituents subject to treatment to require
treatment for any underlying hazardous constituent reasonable expected to be present in any given
contaminated soil when such constituents are found at initial concentrations greater than ten time
the universal treatment standard. Second. EPA has placed additional restrictions on used of
treated soil in hazardous waste derived products which will be used in a manner constituting
disposal (i.e., will be placed in or on the land).

The Agency is not persuaded that oversight is necessary to implement the 90% reduction portion
of the soil treatment standards. The Agency believes these types of determinations can be made
using information (such as constituent concentrations across contaminated media) typically
gathered during remediation activities. The Agency notes that, as discussed in the preamble to
today's final action, although contaminated soils are often characterized using composite sampling
techniques; compliance with the 90% LDR treatment standard will, like compliance with other
LDR treatment standards, be measured using grab samples. The Agency will publish additional
guidance on the measuring compliance with the 90% soil treatment standard in the future.

• "Proposed §269.2(b) specifies that pan 269 would only apply to cleanup activities
conducted in accordance with a RMP approved by EPA or an authorized state. On page
18813, EPA solicits comments regarding whether it would be "appropriate to extend the
90%/ 10 times the UTS treatment standard proposed today to all hazardous contaminated
soil, instead of limiting them to soils managed under an approved RMP. This would allow
their use in States that do not seek authorization for this rule or by facility
owners/operators who wish to proceed with remedies ahead of formal agency approval of
a RMP."

Under the Defense Environmental Restoration Program (DERP), DoD has been tasked by
the President to act as lead agency for conducting remedial actions at non-National
Priority Listed (NPL) sites. Though it is DoD policy to request State/EPA participation in
the remediation process, EPA/States may not always have the resources to actively oversee
these lower priority. non-NPL projects. Therefore it is requested that a provision be
adopted which facilitates the use of the 90% reduction/10 times the UTS media treatment
standard even in the absence of a RMP approved by the EPA/state and without active

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EPA/state oversight. This additional provision would facilitate and encourage voluntary
cleanups of both Federal facilities and private sites." (97)

Response: On further consideration of the issue and in response to comments. EPA agrees that the
new soil treatment standards should apply to all hazardous contaminated soil and has adjusted the
final reguiations accordingly. This issue is discussed in more detail in the preamble to today's
final rule.

• "We concur with the Agency that many States may decline to become authorized for the
proposed Bright Line based HWIR-media. The States have already expressed strong
reservations about the extreme complexity and limited reform of the Bright Line approach.
This will serve to further limit the effectiveness of HWIR-media in removing impediments
and disincentives to remediation. Further, all of the current disincentives to voluntary
corrective action will remain in place. We encourage the Agency to adopt the Unitary
approach to avoid many of these limitations. However, if the Agency pursues the Bright
Line approach, making the new LDRs applicable to hazardous soils managed outside an
RMP would help to extend the limited benefits of the Bright Line approach to a larger
universe of remediation activities. DuPont does not believe that these overly stringent soil
treatment requirements should be made any more stringent for this purpose, as such an
action would only serve to further undermine the Bright Line approach's limited benefits
and reinforce existing impediments." (117)

• "p. 18813. cols. 1&2 - EPA notes that the proposed alternative LDR treatment
requirements for hazardous contaminated soils will not be available for
contaminated soils in states that choose not to adopt the final HWIR-media rule, or
for contaminated soils generated at sites where cleanup occurs without direct agency
approval (e.g., voluntary cleanups). The Agency requests comment on whether it
would be appropriate to extend the proposed alternative LDR treatment standards
to all hazardous contaminated soils regardless of whether the cleanup is subject to
State or Agency oversight (i.e., managed under an approved RMP). As an
alternative, the Agency asks whether it should adopt soil treatment standards for
non-HWIR-media hazardous soils that are adjusted to account for the lack of State
or Agency oversight over how they are administered.

DOE urges EPA to adopt the alternative LDR treatment standards for all hazardous soils,
regardless of whether they are generated by a cleanup that is subject to State or Agency
oversight pursuant to proposed 40 CFR Part 269. The absence of such standards will
likely act as a significant disincentive for voluntary cleanups. EPA states that it believes
situations will be rare where meeting the proposed treatment standards for hazardous
contaminated media would be insufficient to meet RCRA section 3004(m)=s requirement
that threats to human health and the environment be minimized [p. 18809. col.l].
Therefore, DOE would support extending the proposed LDR treatment standards to ail
contaminated soils. DOE believes that besides being inconsistent, it would be very

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confusing to have LDR treatment standards for contaminated soils managed under 40 CFR
Part 269 that differ from LDR treatment standards applicable to non-HWIR-media
contaminated soils." (60)

Conversely, another commenter believed that soil-specific LDR standards should not be extended
to waste not managed under an approved RMP.

• "EPA requests comment on whether it would be appropriate to extend the modified
HWIR-Media treatment standards to all hazardous contaminated soils, instead of limiting
them to soils managed under an approved RMP.

TDS does not support such a concept for the following reasons:

• The RMP process imposes an obligation on the generator and the overseeing
agency to provide the necessary technical data to justify the utilization of the
flexibility provided by this rule. It may not be justified in many situations and a
burden of proof threshold is part of the safety net to assure that such flexibility is
used wisely.

• The RMP also provides the public with a forum to participate in a remediation
process that provides for more flexibility. By making the HWIR-Media standards
available to allsoils without the need for a RMP, the public has, in effect been
removed from the process.

• Since the HWIR-Media rule has not been promulgated and utilized, there is no
convincing track record, based on the implementation of many RMP's. to suggest
that the HWIR-Media treatment standards can be applied in such a blanket
manner without need for any site specific determinations under the RMP format."
(25)

Response: As discussed in detail in the preamble to today's rulemaking, EPA no longer believes
that the soil treatment standards should be limited to soils managed under site-specific Agency
oversight, e.g., through a Remediation Management Plan or RMP. EPA is convinced that the soil
treatment standards will satisfy the standard of RCRA Section 3004(m) that short-term and long-
term threats to human health and the environment posed by land disposal be minimized. As
discussed in the preamble to today's final rule, technology-based standards such as the ninety
percent reduction requirement capped by treatment to ten times the universal treatment standard
promulgated today provide an objective measure of assurance that hazardous wastes (or in this
case hazardous contaminated soil) are substantially treated before they are land disposed, thus
eliminating the long-term uncertainties associated with land disposal. In addition, the extent of
treatment required substantially reduces the mobility or total concentrations of hazardous
constituents.
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In addition. EPA has made two changes from the proposal to strengthen the soil treatment
standards: first. EPA has modified its approach to constituents subject to treatment to require
treatment for any underlying hazardous constituent reasonable expected to be present in any given
contaminated soil when such constituents are found at initial concentrations greater than ten time
the universal treatment standard. Second. EPA has placed additional restrictions on used of
treated soil in hazardous waste derived products which will be used in a manner constituting
disposal (i.e.. will be placed in or on the land).

1.D.3 Sediment [Also see related Sediment comments under Chapter 5, Definitions,
and other Chapters.]

One commenter notes that:

• "The proposed rule does not include "bright line" numbers for contaminated sediments.
EPA believes that the amount of sediment that is classified as hazardous is very low and.
therefore, site-specific "contained in" determinations should be made for hazardous
contaminated sediments." (142)

The Agency notes that application of the current contained-in policy to contaminated sediments is
unaffected by today's rule. Under the current policy, a determination can be made that any given
volume of contaminated environmental sediments does not contain hazardous waste. As discussed
in detail in the preamble to today's final rule. EPA recommends these determinations be made at
site-specific, risk-based levels.

Several commenters stated that risk levels proposed for soil were not appropriate for sediments
managed in situ due to the use of different exposure factors.
• "The soil bright line levels identified in the proposed rule do not appear to be appropriate
for sediments managed in-situ. The risk levels are not consistent for sediments due to the
use of different exposure factors." (143)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and environmental sediments. If. in the future, EPA takes
action to establish a bright line, EPA will address concerns regarding the relationship of the bright
line to contaminated sediments, as necessary, at that time.

• "CMA is encouraged that the proposed rule does not include Bright line numbers for
contaminated sediment, but rather proposes that site-specific contained-in decisions be
utilized for sediment assessment. Indeed, given the complex, extraordinarily site-specific
nature of sediment. CMA asserts it is inappropriate and scientifically unsound to apply

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Bright Line values for the assessment of contaminated sediment. Moreover. CMA urges
EPA to stress effective risk assessment and management decision-making throughout its
contained-in approach." (112)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments. If, in the future. EPA takes action to establish
a bright line. EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary, at that time.

• "As indicated previously, Shell does not support the use of bright lines for the evaluation
of contaminated media. We support regulating sediments under the Unitary Approach.

SEDIMENT AND SLUDGES SHOULD BE MANAGED UNDER THE UNITARY
APPROACH

The remediation of sediment and sludges (which fit the definition of sediment) should be
determined based on site specific risk assessments.

Note: Sediment is defined in the proposal to include "industrial wastes, other organic and
inorganic materials, and chemicals." The physical description of a sludge would or could
fit the proposed description of sediment.

GROUNDWATER SHOULD BE MANAGED UNDER THE UNITARY APPROACH

The same logic that we believe should apply to sediment and sludges should also apply to
groundwater. The regulation of these and other contaminated media simply do not belong
under the full Subtitle C requirements of RCRA which were designed (in part) to
discourage the generation of hazardous waste. Since a contaminated media such as
groundwater is not "generated" via an intentional industrial process, the Subtitle C
program becomes a bottleneck to the remediation instead of an effective tool to protect the
environment from harm." (115)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments and ground water. If, in the future, EPA takes
action to establish a bright line, EPA will address concerns regarding the relationship of the bright
line to contaminated sediments, sludges and ground water.

Regarding the suggestion that EPA promulgate the so called "unitary approach," as discussed in
the preamble to today's rulemaking, the Agency is not, at this time, taking action on the portions of
the HWIR-Media proposal which would have provided opportunities for some or all hazardous
remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations.
especially LDRs, to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-
examine application of LDRs to hazardous remediation waste, including hazardous contaminated
soil. If there is no legislation, EPA may choose to take additional regulatory action, which may
include a re-examination of the application of LDRs to hazardous contaminated soils and other

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hazardous remediation wastes. In the meantime. EPA believes the alternative LDR treatment
standards for contaminated soil promulgated today, including the site-specific, risk-based
minimize threat variance, represent a significant improvement over the current practice of applying
the treatment standards developed for pure industrial hazardous waste.

"In regards to EPA's request for comments on whether to develop a Bright Line specifically for
contaminated sediments, we believe that, since the amount of sediments classified as RCRA
hazardous is very low, EPA's efforts would be better focused on other priorities. In any case, the
Bright Line levels for soils should not be applied to sediments since sediments interface with both
surface and ground water, and the soil Bright Line levels consider only ingestion and inhalation."
(00036)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments. If, in the future. EPA takes action to establish
a bright line, EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary at that time.

Conversely, several commenters indicated that soil Bright Lines should apply to sediments. Two
commenters suggested that applicability is appropriate to sediments being remediated pursuant to
an RMP. rather than sediments being redeposited in an aquatic environment. One commenter
encouraged EPA to coordinate the development of sediment Bright Lines with EPA's
development of sediment quality criteria.

• "The preamble to the proposed HWIR-Media rule gives a detailed explanation of how
LDRs would "attach" to environmental media. EPA states that:

"...environmental media contaminated by hazardous wastes placed before the
effective dates of the applicable land disposal restrictions does not become subject
to the LDRs unless they are removed from the land and placed into a land disposal
unit after the effective dates of the applicable restrictions.

The land disposal restrictions do not attach to environmental media contaminated
by hazardous wastes when the wastes were placed before the effective dates of the
applicable land disposal prohibitions. If these media are determined not to contain
hazardous wastes before they are removed from the land, then they can be
managed as nonhazardous contaminated media and they're not subject to land
disposal restrictions. (61 FR 18805)"

Here again, it is the "contained-in" decision, and not the Bright Line concentration
that determines the applicability of the LDRs. Once media are determined to
contain hazardous wastes. LDRs would attach to the media. For soil, the proposed
rule establishes alternative LDR restrictions which would require that "soils be
treated so that the concentrations of constituents subject to treatment are reduced
by 90 percent with treatment capped at 10 times the Universal Treatment Standard
(UTS). If treatment of a given constituent to meet the 90 percent reduction
standard would result in reducing constituent concentrations to less than 10 times
the UTS, treatment beyond 10 times the UTS would not be required."

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For sediments, alternative LDR restrictions were not developed: thus, according to this
proposed rule, sediments would be required to meet the much more stringent LDR
treatment standards applicable to the hazardous wastes contained in the sediment. Many of
the hazardous waste LDRs were developed based on thermal treatment technologies: these
treatment levels cannot be consistently met using non-thermal technologies, such as
bioremediation. For treatment purposes, this distinction between soil and sediment seems
arbitrary. Once removed from an aqueous environment and dewatered. sediment is
essentially soil, and should be managed as such for the purposes of this rule. Thus, given
the fact that there are no significant risk-based differences between the management of
excavated soil and dredged dewatered sediment, sediments should be subject to the same
alternative treatment standards as were developed for soil." (40)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a system to allow most contaminated environmental media, including
environmental sediments, to exit the RCRA system. If, in the future, EPA takes action to establish
such a system. EPA will address these comments, as necessary, at that time.

•The Agency is also not. at this time, taking action on the portions of the proposal which would
have applied the soil treatment standards to other environmental media or remediation wastes
(such as dewatered sediments). The Agency will continue to evaluate this issue: if, in the future.
EPA takes action to apply the soil treatment standards it will address these comments, as
necessary, at that time.

• In 1994. the EPA Office of Water issued EPA's Contaminated Sediment Management
Strategy, EPA/823/R-94/-1 (Aug. 1994) as part of the federal initiative to "reinvent
government.'' The Strategy indicated that it was EPA's intent to develop and promulgate
standard sediment quality criteria for use in determining when RCRA corrective actions or
CERCLA remedial activities should be required at a site. Apparently, EPA has not yet
promulgated such criteria, but DOE encourages EPA, to the extent appropriate, to
coordinate future development of sediment Bright Line concentrations with its
development of sediment quality criteria. In the mean time. DOE believes the Bright Line
concentrations for soil should be used as bright line guidance for sediment. DOE believes
this would be appropriate for the following reason. Remediation of contaminated
sediments may involve removal of the sediments from the associated water body followed
by treatment and disposal on uplands. In situ treatment or ex situ treatment and either
replacement into the drained water body or placement on uplands followed by backfilling
of the water body is also a possible remedy. In similar fashion, remediation may involve
permanent drainage of a water body (e.g., impoundment) and subsequent management and
disposal of permanently exposed sediments in uplands. In all such cases, the end state of
sediments is, in effect, soil. With this in mind, it seems appropriate to establish the soil
Bright Line values as applicable to sediments. At a minimum, the soil Bright Line levels
should be applied where the RMP specifies that the sediments will be land disposed
outside of a water body." (00060)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils or sediments. If, in the future, EPA takes action to establish a
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bright line. EPA will address concerns regarding the relationship of the bright line to contaminated
sediments, as necessary, at that time.

• "In general, soil numbers should apply to sediments being remediated pursuant to an
RMP. The only instance when soil numbers may be inappropriate occurs when sediments
are being redeposited in an aquatic environment. In this instance, the RMP could specify
alternative cleanup standards consistent with the cleanup goals for that environment." (811

Response: The Agency is also not, at this time, taking action on the portions of the proposal
which would have applied the soil treatment standards to other environmental media or
remediation wastes (such as dewatered sediments). The Agency will continue to evaluate this
issue: if. in the future, EPA takes action to apply the soil treatment standards it will address these
comments, as necessary, at that time.

• "The Agency requests comments on whether specific "Bright-Line" values should be
developed for sediments or whether the values established for soils are appropriate.

\VMX believes that sediments should be included within the soil "Bright-Line" values.
Despite the definition provided in this proposal, which suggests that sediments are
distinctly separate and different than soil, this purported dissimilarity is not supported by
WMX's experience. Sediments dredged from waterways generally appears to be wet gritty
soil. The same is true for sediments cleaned out of manholes and underground water lines.
Due to the dispersion of hazardous contaminants in a waterway, the contamination may be
of low level, distributed over a large area. Thus from a contaminant concentration
perspective, treatment of sediment to less than the Part 268 standards appears as justified
as for soil. In addition, the same treatment technologies would likely be applied to
sediment as soil with similar results. For example, pozzolanic stabilization of lead
contaminated sediment will be equally as effective as stabilization of lead contaminated
soil. Therefore, sediment should be eligible for the same requirements as soil." (104)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments. If. in the future. EPA takes action to establish
a bright line. EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary, at that time.

The Agency is also not. at this time, taking action on the portions of the proposal which would
have applied the soil treatment standards to other environmental media or remediation wastes
(such as dewatered sediments). The Agency will continue to evaluate this issue; if. in the future.
EPA takes action to apply the soil treatment standards it will address these commentes. as
necessary, at that time.

• "The bright line numbers for sediments should be the same as the bright line numbers for
soils. "(f()8)

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a bright line. EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary, at that time.

• "Bright line number for sediments should be the same as the bright line numbers for soils
since in may instances remediation involves removal of sediments, dewatering and
treatment and disposal with soils generated during remediation." (108)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments. If. in the future, EPA takes action to establish
a bright line, EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary, at that time.

The Agency is also not, at this time, taking action on the portions of the proposal which would
have applied the soil treatment standards to other environmental media or remediation wastes
(such as dewatered sediments). The Agency will continue to evaluate this issue; if, in the future.
EPA takes action to apply the soil treatment standards it will address these commentes. as
necessary, at that time.
• "The reduced LDR requirements proposed for soils above the bright line should be
applied to all remediation wastes including sediments. Characteristic waste should simply
need to be treated to remove the characteristic." (108)

Response: EPA is not, at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media, including contaminated soils and sediments. If, in the future, EPA takes action to establish
a bright line, EPA will address concerns regarding the relationship of the bright line to
contaminated sediments, as necessary, at that time.

The Agency is also not. at this time, taking action on the portions of the proposal which would
have applied the soil treatment standards to other environmental media or remediation wastes
(such as dewatered sediments). The Agency will continue to evaluate this issue; if, in the future.
EPA takes action to apply the soil treatment standards it will address these comments, as
necessary, at that time.

Regarding treatment of media that exhibits a characteristic of hazardous waste, as discussed in
detail in the proposal, the agency believes such media, like characteristic waste, must be treated for
the characteristic constituent (for media that exhibit the toxicity characteristic) or the characteristic
property (for media that exhibit the characteristics of ignitability, corrosivity, or reactivity) and for
all underlying hazards constituents reasonable expected to be present when such constituents are
found at concentrations greater than ten times the universal treatment standard. See 61 FR 18809,
April .29, 1996 and other sources cited therein.

• "EPA's proposed approach provides virtually no reform for sediments and groundwater.
which must be treated to meet the existing process waste-based LDRs. These materials
were never excluded from reform in the FACA discussions, and there is no apparent basis
for EPA's proposal to address them in a fundamentally different manner than soil. Such
as approach simply serves to further undermine the limited relief afforded by the Bright
Line approach and add to its cumbersome complexity. EPA justifies soil specific LDRs

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largely because soils are fundamentally different than the process wastes upon which they
did not form the basis for the UST. Further, sediments and groundvvater are not solid
wastes, but media, which may contain hazardous waste. We see no logic for addressing
them differently than other media. If EPA truly wishes to remove RCRA's substantial
impediments from remedial activities they must provide meaningful reform for all
remediation wastes, no piecemeal, incremental changes for snippets of the remediation
waste universe. We simply do not believe that the Hazardous Waste Identification Rule
for some undefined portion of contaminated soils accomplishes this goal." (117)

Response: The Agency shares concerns that application of LDRs to hazardous remediation waste.
including hazardous contaminated soil, might prove overly complex or create impediments to
efficient and aggressive remedial actions. However, as discussed in the preamble to today's
rulemaking, the Agency is not. at this time, taking action on the portions of the HWIR-Media
proposal which would have provided opportunities for some or all hazardous remediation waste to
exit large portions of the RCRA Subtitle C system. The Agency continues to believe that
legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine
application of LDRs to hazardous remediation waste, including hazardous contaminated soil. If
there is no legislation. EPA may choose to take additional regulatory action, which may include a
re-examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes.

• "EPA proposes in §269.30(f) to require sediment to be treated to a different standard than
soil. On page 61 FR 18807, EPA explains that they considered applying the alternative
90% or 10 times UTS treatment standard to media other than soil, but decided not to
because "there is little information available to the Agency to indicate that the LDR
treatment standards that currently apply to these other media are inappropriate, or
otherwise pose the same type of technical challenges as they do for soils."

DoD requests that sediments be treated similarly to soils because of their physical
similarities. Sediment is defined in §269.3 as including "transported soil particles from
surface erosion" and soil is defined as including "silt and sand." From a practical
perspective, delineating the point at which the soil area stops and the sediment area starts
and ensuring the two media are not mixed will be difficult. Also, once excavated and
dried, it may be difficult to distinguish between the two. Applying different treatment
criteria will necessitate segregation and separate management and thus prolonging the
cleanup process and increasing costs which is contrary to the intent of this ruiemaking."
(97)

Response: The Agency is also not. at this time, taking action on the portions of the proposal
which would have applied the soil treatment standards to other environmental media or
remediation wastes (such as dewatered sediments). The Agency will continue to evaluate this
issue; if, in the future. EPA takes action to apply the soil treatment standards it will address these
comments, as necessary, at that time.

• "In most cases, the end state of remediated sediments is, in effect, soil. Westinghouse
recommends EPA establish the soil Bright Line values as applicable to sediments. The
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soil Bright Levels should be applied where the RMP specifies that the sediments will be
land disposed outside of a water body." (00035)

Response: The Agency is also not. at this time, taking action on the portions of the proposal which
would have applied the soil treatment standards to other environmental media or remediation
wastes (such as dewatered sediments). The Agency will continue to evaluate this issue: if. in the
future. EPA takes action to apply the soil treatment standards it will address these comments, as
necessary, at that time.

[From Chapter 5 of HWIR-Media RTC: 5.H SOIL]

One commenter supports EPA's definition of soil.

• "a. p. 18794. col. 2 - EPA proposes to define soil as:

... unconsolidated earth material composing the superficial
geologic strata (material overlying bedrock), consisting of clay,
silt, sand, or gravel size particles (sizes as classified by the U.S.
Soil Conservation Service), or a mixture of such materials with
liquids, sludges, or solids which is inseparable by simple
mechanical removal processes, and is made up primarily of soil.

The Agency specifically solicits comments on this proposed definition and the approach it
implies for classifying mixtures of soil and other materials.

As indicated in the preamble, EPA previously proposed this same definition of soil as part
of the Phase II LDR proposal (i.e., LDRs for Newly Identified and Listed Wastes and
Hazardous Soil; 58 FR 48092, 48123). In general. DOE concurs with this definition of
soil. The Department believes that its comment in response to the definition of soil when
it was previously presented remains pertinent. DOE commented as follows:15
The Department supports this definition because, as EPA states, it would avoid requiring
chemical analyses for soil properties in order to differentiate precisely between waste, soil
and debris. This type of approach would minimize handling and exposure, and would
avoid analytical delays which yield no value-added results. For the sake of better
clarification and consistency with the hazardous debris rule, EPA should provide further
guidance regarding mixtures of soil with other materials. DOE suggests that mixtures of
materials should be classified as soil based on volume (i.e., where the soil portion
comprises the largest amount of material present by volume), according to visual
inspection. This method of classification would be consistent with the classification
scheme specified for debris (August 18, 1992, Phase I LDR final rule. 57 FR 37224)."(60)

Response: EPA appreciates this support of the definition of soil.
15 Hi Comments. Land Disposal Restrictions tor Newiy :cs.ntifiec and isted Hczcraous Wastes C"c
ici. Specific Comment Vll.3.4, ':em '. sp. 6-7 '03/15/94).
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EPA is also persuaded that it is appropriate to conform the definition of soil to that of debris, by
clarifying that, determinations of whether a mixture of soil and non-soil is "made up primarily of
soil" should be determined based on volume based on visual inspection. As EPA discussed in the
preamble to the debris rule, it is important that remediation project managers and field personnel
have a means of classifying material as "debris." "soil." or "waste" that is easy to implement in the
field. Using this approach, for example, a mixture of soil and cobbles where the soil makes up the
majority of the mixture based on visual inspection would be classified as soil.

A couple of commenters argue against EPA's definition of soil.

• "The Project believes there will be great difficulty in applying this definition in the field as
well. Furthermore. EPA seems to be conceding as much by proposing to let the States
grapple with the problem See 61 Fed. Reg. 18.794. One could question how. if the States
are not considered capable of addressing all remediation wastes, as is inherent in the
media-only, bright-line proposal, they nonetheless would be expected to address the
fundamental determination necessary under that approach. Again, we believe that the
problems with attempting to apply this definition during actual remediations are a further
strong justification for moving to the Unitary Approach."(55)

Regarding the suggestion that EPA adopt the Unitary approach, as discussed in the preamble to
today's rulemaking, the Agency is not, at this time, taking action on the portions of the HWIR-
Media proposal which would have provided opportunities for some or all hazardous remediation
waste to exit large portions of the RCRA Subtitle C system. The Agency continues to believe that
legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs, to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine
application of LDRs to hazardous remediation waste, including hazardous contaminated soil. If
there is no legislation. EPA may choose to take additional regulatory action, which may include a
re-examination of the application of LDRs to hazardous contaminated soils and other hazardous
remediation wastes. In the meantime. EPA believes the alternative LDR treatment standards for
contaminated soil promulgated today, including the site-specific, risk-based minimize threat
variance, represent a significant improvement over the current practice of applying the treatment
standards developed for pure industrial hazardous waste.

• "Soil - As stated in Part I, Section II. US WAG disagrees with the limited scope of EPA's
proposal. EPA's effort to divide remediation waste into discrete, separate categories is
fundamentally flawed. And the Agency's effort to solve the problem by defining "soil" to
include a mixture which is "inseparable by simple mechanical removal processes and is
made up primarily of soil" (id. at 18794) will only add another layer of confusion into an
already complex rule. By creating uncertainty about the type of remediation waste present
and the corresponding regulatory framework governing the waste. EPA may create
disincentives to remediating the site. The provision relating to mixtures is likely to
become the subject of considerable uncertainty and, ultimately, enforcement litigation.
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However. EPA could avoid these problems by expanding the rule to the entire universe of
remediation waste."'(59)

EPA is not. at this time, taking action on the portions of the HWIR-Media proposal which would
have provided opportunities for some or all hazardous remediation waste to exit large portions of
the RCRA Subtitle C system. The Agency continues to believe that legislative action is needed to
address the application of RCRA Subtitle C regulations, especially LDRs. to hazardous
remediation waste. If legislation is forthcoming, EPA will likely re-examine application of LDRs
to hazardous remediation waste, including hazardous contaminated soil. If there is no legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the
application of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In
the meantime. EPA believes the alternative LDR treatment standards for contaminated soil
promulgated today, including the site-specific, risk-based minimize threat variance, represent a
significant improvement over the current practice of applying the treatment standards developed
. for pure industrial hazardous waste.
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CHAPTER TWO
MORE STRINGENT TREATMENT UNDER PROPOSED §269.32
Several commenters commented on the proposed §269.32. which proposes site-specific determination
regarding the effectiveness of proposed treatment standards of hazardous contaminated media and allows
for more stringent treatment standards.

Specifically, two commenters assert that proposed §269.32 should be expanded to include less stringent
treatment standards, as well as more stringent treatment standards, dependent upon site characteristics.

• "EPA has proposed to allow the overseeing agency to adjust the proposed generic treatment
standard upward to address any particular risk posed by specific site or waste characteristics. 61
Fed. Reg. at 18807. USWAG believes that this concept should be expanded to allow the
overseeing agency to approve less stringent treatment standards if such standards will adequately
address the risks posed by the materials. In such circumstances, additional treatment is just
treatment for treatment's sake and the regulations should provide a simple mechanism for avoiding
it." (59)

• "DuPont is concerned that, despite repeated statements regarding the site-specific nature of
remediation and the ability of State programs to provide adequate oversight to ensure appropriate
decisions, the Agency proposes to allow the States to determine when more stringent treatment is
necessary, but not when less stringent treatment would be appropriate. We encourage the Agency
to truly empower the States to make protective site specific determinations regarding the
appropriate management requirements for remediation wastes on a site-specific basis, free of
artificial regulatory impediments/' (117)

Response: EPA is not, at this time, going forward with the portion of the HWIR-Media proposal which
would have allowed overseeing agencies to impose more stringent LDR treatment standards for hazardous
contaminated soil on a case-by-case basis. EPA is, however, persuaded that there may be situations were
the technology-based treatment standards might prompt treatment to a point beyond the point at which
threats to human health and the environment are minimized. To reduce the likelihood of this, EPA is
going forward with a. so called, site-specific minimize threat variance, which would allow, through
application of the variance process, a site-specific, risk-based decision to cap the technology-based
treatment standards. This new treatment variance will be available for all contaminated soils and is
discussed in detail in the preamble to today's rulemaking.
Two commenters believe that §269.32 is inconsistent with the proposed rule's underlying concept and
should be deleted in its entirety from the proposed rule.

• "This section allows the Director to require more stringent treatment than the modified LDR
treatment requirements specified in the Proposed Rule in § 269.30. There is nothing in the
proposal that would prevent the Director from requiring even more stringent treatment than is
required by the current LDR provisions of 40 C.F.R. Part 268. This approach seems inconsistent
with the entire concept underlying this Proposed Rule, which is that contaminated media, by its
very nature, is generally expected to be a lesser risk than the initial "as generated" waste. For these
reasons it is recommended that § 269.32 be deleted in the final rule." (12)

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• "The proposed rule. § 269.32. allows the Director to require more stringent treatment than the
modified LDR treatment requirements specified in the proposal in § 269.30. Indeed, nothing in the
proposal prevents the Director from requiring even more stringent treatment than is required by the
current LDR provisions of 40 CFR Part 268. This approach seems inconsistent with the entire
concept underlying this proposed rule which is that contaminated media, by its very nature, is
generally expected to be a lesser risk than the initial "as-generated" waste. Therefore. Kaiser urges
EPA to delete §269.32 in its entirety." (24)

Two commenters suggest developing a specific approach or methodology for deciding the site-specific
treatment criteria in §269.32.

• "At §269.32. an option is extended to allow an agency to require more stringent treatment
standards based on a determination that the treatment would not sufficiently diminish toxicity or
provide for adequate control of migration of hazardous constituents. To avoid unfounded
stringency on the part of authorized agencies in the exercise of this option, the option should
include reference to a specific methodology or body of scientific models for evaluating the need
for more stringent standards. Such reference would allow the entity undertaking the remedial
action to more accurately evaluate the potential use of a Remedial Management Plan (RMP) and to
more effectively structure the draft plan." (06)

• "Risked based decision making should be stressed. Section 269.32 More stringent treatment
standards should be revised as follows "... if s/he using appropriate risk assessment and risk
management methodologies based on sound science determines...". This will provide for suitable
site specific, risk based decision making on the need for additional treatment to be protective of
human health and the environment." (38)

Response: EPA is not, at this time, taking action on the portions of the HWIR-Media proposal which
would have established oversight of remediation waste management decisions through a remediation waste
management plan (RMP), required an approved RMP in order to apply the soil treatment standards, or
given program implementers the discretion to apply more stringent soil treatment standards on a case-by-
case basis during the RMP approval process. Although the discretion to establish more stringent soil
treatment standards is not part of the final regulations, the Agency is confident that the soil treatment
standards are sufficient to satisfy the core requirement of RCRA Section 3004(m) that short-term and long-
term threats to human health and the environment posed by land disposal be minimized.

As discussed in the preamble to today's action, the Agency has made a number of changes to the soil
treatment standards to ensure their protectiveness. First, the Agency has modified its approach to
constituents subject to treatment to require, for both soil containing listed waste and soil that exhibits a
hazardous characteristic, treatment for all underlying hazardous constituents reasonable expected to be
present in contaminated soil when such constituents are initially found at concentrations greater than ten
times the universal treatment standard. This will ensure substantial treatment for the diversity of

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contaminants that might be present in any given soil. Second. EPA has added restrictions t the use of
treated contaminated soil in hazardous waste-derived products that are used in a manner constituting
disposal (i.e.. when such products are placed on the land).

One commenter believes that the example given in §269.32. which describes when a more stringent
treatment standard may be developed, occurs more often than EPA anticipates and should not be
underestimated.

• "Page 188809. column 1. paragraph 1. more stringent treatment requirements. The specific
example given (which EPA believes would likely be rare), is probably more common than stated
and should not be downplayed by the use of such language (even though EPA believes such
situations would likely be rare)." (41)

Response: EPA is not. at this time, taking action on the portions of the HWIR-Media proposal which
would have established oversight of remediation waste management decisions through a remediation waste
management plan (RMP). required an approved RMP in order to apply the soil treatment standards, or
given program implememers the discretion to apply more stringent soil treatment standards on acase-by-
.case basis during the RMP approval process. Although the discretion to establish more stringent soil
treatment standards is not part of the final regulations, the Agency is confident that the soil treatment
standards are sufficient to satisfy the core requirement of RCRA Section 3004(m) that short-term and long-
term threats to human health and the environment posed by land disposal be minimized.

The majority of commenters did not raise concerns that, in some instances, site- or waste-specific concerns
might prompt regulatory agencies to impose treatment requirements that are more stringent (or more
aggressive) than the treatment which would be required under the soil treatment standards. Should those
situations arise, for example, as discussed in the HWIR-Media proposal, if a site were located in a
particularly sensitive environmental setting, or if contaminated soil contained particularly high
concentrations of highly-mobile or highly toxic constituents, ample authority exists under cleanup
programs such as the CERCLA or RCRA corrective action programs, to ensure that remedies adequately
address these concerns. The Agency notes that the purpose of the land disposal restriction treatment
standards is to ensure that hazardous waste is properly pre-treated before disposal, not to define protective
cleanup levels for the diversity of cleanup sites.
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CHAPTER THREE
REVIEW OF TREATMENT RESULTS UNDER PROPOSED §269.33
One commenter commented on the proposed §269.33. which states that if treatment standards are not
achieved at a site, the facility owner/operator would be required to either submit a new RMP including
plans to re-treat or submit an application for Media Treatment Variance. [Also see Section 16.F regarding
termination of RMPs.]

Specifically, the commenter supports this provision.

• "USWAG supports the provision in proposed section 269.33(b) that allows a generator to apply
for a treatability variance if the initial treatment of the waste fails to achieve compliance with the
treatment standard. Id. at 18810. This provision adds useful flexibility to the regulatory system by
recognizing that, because of the heterogeneous nature of remediation wastes, treatment
methodologies may not always perform as predicted." (59)

Response: The Agency appreciates this support of the proposed approach; however. EPA is not, at this
time, taking action on the portions of the HWER-Media proposal which would have established oversight
of remediation waste management decisions through a remediation waste management plan (RMP),
required an approved RMP in order to apply the soil treatment standards, or given program implementers
the discretion to require a new RAP - or a treatment variance -- if initial treatment of contaminated media
proved unsuccessful. The Agency notes that, in any case, current regulations seem to already provide this
opportunity. Under 40 CFR 268.44(h) the Agency may, on a case-by-case basis, approve an alternative
LDR treatment standards through a treatment variance process in a number of circumstances including
when the otherwise applicable treatment stadards is unachieveable — that is, when application of the
treatment technologies on which the treatment standard was based fails to meet the treatment standard in
any given waste (or contaminated soil).
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CHAPTER FOUR
MANAGEMENT OF TREATMENT RESIDUALS UNDER PROPOSED S269.34

The following commemers support the provision that non-media treatment residuals should be regulated :n
accordance to RCRA Subtitle C j^quiremems.

• "Under the proposal, residuals from the treatment of media could be classified as hazardous/
non-hazardous contaminated media wastes (i.e.. wastes that have been "separated" from the media
being treated). This distinction has real-world consequences, since "waste" residuals would be
subject to RCRA Subtitle C or D requirements, while "media" residuals would be subject to the
new Pan 269 requirements of this rule. The ETC supports the management of non-media treatment
residuals under Subtitle C. consistent with Pan 268 standards. Such residuals are clearly not
media, but instead reflect the same physical and chemical characteristics of treatment residuals
generated from process wastes. Such non-media treatment residuals must be subject to full
Subtitle C control in order to provide for consistent protective management of non-media, and
process waste residuals. Otherwise, enforcement complexities and environmental impact could
result.

Moreover, the ETC believes that compliance with the 90^ treatment standard for contaminated
media does not in itself assure that the residual poses sufficiently low hazards to be disposed in a
Subtitle D facility. For example, soil contaminated with high concentrations of solvents could still
have residual concentrations that can damage the synthetic liners of municipal landfills—or worse
rapidly migrate into groundwater from unlined landfills. As a result, we believe that treated media
containing hazardous constituents below the Bright Line, but still above HWTR exit levels, should
be disposed in a Subtitle C facility.

The Council urges EPA to develop guidance for the management of treated media/waste residuals
in accordance with this matrix." (88)

In addition media treatment residuals (i.e.. treated soil) will remain subject to RCRA Subtitle C regulations
(i.e.. will require disposal in a RCRA Subtitle C facility) unless or until EPA or an authorized state
determines, through application of the contained-in policy, that the soil does not or no longer contains
hazardous waste, or the soil no longer exhibits a hazardous waste characteristic.

» "The Department also concurs with the proposal that non-media treatment residuals, such as
• carbon canisters, should be subject to management under the full requirements of RCRA.
including the LDRs when generated as part of a cleanup action. Although we believe that carbon
canisters generated as the result of the remediation of a petroleum release, which exhibit the
Toxicity Characteristic for benzene, should be allowed to be managed as a non-hazardous waste
when transported from a site for recycling/regeneration." (112)

Response: EPA appreciates this support of the proposed approach. EPA has retained, in the final
regulations, the requirement that non-media residuals separated from hazardous contaminated media
during treatment be managed as hazardous waste. If land disposed, these non-media treatment residuals
will be subject to applicable land disposal restrictions, usually the universal treatment standards.
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Undercurrent Agency rules carbon canisters generated througn treatment of hazardous waste (including
hazardous contaminated soil) are subject to tne same tests for hazardous ness as other wastes: tnev may
Themselves exhibit a cnaractensnc. or. if they hold listed wastes, would be haardous for that reason. Rules
on recycling are round at 261.2 and 261.6 and are not at issue in this proceeding.

Although the following commenters believe that the management of residuals should be resulated in
accordance with I .rt 269, they offer several concerns. One commenter believes that EPA should clai.fv
that proposed section 269.34(au2) does not require that non-media rjsiduals below-the-Bnght i_ine must
be managed as hazardous waste, unless the residual exhibits a hazardous characteristic. The following
commenter requests EPA to clarify that the proposed section does not require that non-media residuals
derived from the treatment of media below the Bright Line must be managed as hazardous waste, unless
the residual exhibits a hazardous characteristic.

• "USWAG supports proposed section 269.34(a)(l). which provides that media residuals should be
managed in accordance with the standards of Part 269. Id. Specifically, USWAG supports EPA's
proposal that above-the-Bright Line media that are treated to reduce contaminant concentrations
beiow-the-Bright Line should subsequently be subject to the same management requirements as
media that are below-the-B right Line as generated. There is simply no reason to impose regulator.
requirements on media treatment residuals that are different from those aoplicable to meaia with
similar levels of contamination as generated, and EPA's proposal sensibly suojects them to the
same requirements.'

USWAG believes that EPA should clarify that proposed section 269.34(a)(2) does not require that
non-media residuals derived from the treatment of media that are below-the-Bright Line must be
managed as hazardous waste, unless the residual exhibits a hazardous characteristic. Because EPA
has determined that these media no longer contain hazardous waste, any residuals are not derived
from treatment of a hazardous waste. However, the proposed language, by referring to the
standards applicable to the waste "before treatment," is unclear and could be interpreted to require
the treatment of residuals as hazardous waste if the constituents in the residuals had originated
from a listed waste. Accordingly, EPA should clarify that the derived from rule does not apply to
residuals generated from treatment of media below-the-Bright Line and that therefore such
residuals are not subject to Subtitle C regulation unless the residual itself exhibits a hazardous
characterise. Otherwise, if EPA were to require management of such residuals under Subtitle C.
it would undermine much of what EPA hopes to accomplish with this proposal by increasing the
cost and difficulty of remediation." (59)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media
including contaminated soils and expanded the opportunities for regulatory agencies to exempt certain
remediation wastes from RCRA Subtitle C requirements. If. in the future, the Agency takes action to
establish a bright line, it will address these comments as necessary.

Residuals from treatment of contaminated soil will be regulated as discussed in the proposal. Non-media
treatment residuals generated by treatment of contaminated soil which contains listed hazardous waste or
which exhi, s a characteristic of hazardous waste, will be regulated as hazardous waste, will remain
subject to RCRA Subtitle C requirement including, if land disposed, applicable land disposal restriction
treatment standards. Media residuals (i.e.. treated soil) will also continue to be regulated as hazardous
waste up to and until EPA or an authorized state determines that the s, il no longer contains hazardous
waste (or until the soil no longer exhibits a hazardous characteristic).
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« "MANAGEMENT OF TREATMENT RESIDUALS (40CFR269.34.: Bell Laboratories believes
that regulatory standards for the management of media residuals are necessary under this Part.
Non-media residuals should be considered waste residuals and subject to the subtitle C or D
standard applicable to the waste contaminating the media before treatment. The methods used to
determine whether-treatment residuals are media or non-media should be addressed through
guidance documents. It should not be required that media and non-media treatment residues be
separated using physical or mechanical means. In those cases where the treatment method results
in the destruction of the media treated, leaving only non-media residuals, the residuals should be
subject to the treatment standards for the contaminating hazardous waste (UTS) and not the
treatment standard for media (90% reduction in constituent concentration or 10 times the UTS
alternative soil treatment standard proposed)." (42)

Response: EPA appreciates this support of the proposed approach: the Agency has retained this approach
in the final regulations. Under the final regulations, residuals from treatment of contaminated soil will be
regulated as discussed in the proposal. Non-media treatment residuals generated by treatment of
contaminated soil which contains listed hazardous waste or which exhibits a characteristic of hazardous
waste, will be regulated as hazardous waste, will remain subject to RCRA Subtitle C requirement
including, if land disposed, applicable land disposal restriction treatment standards. Media residuals (i.e..
treated soil') will also continue to be regulated as hazardous waste up to and until EPA or an authorized
state determines that the soil no longer contains hazardous waste (or until the soil no longer exhibits a
hazardous characteristic).

Regarding the separation of media from non-media residuals (i.e., soil from non-soil), the Agency agrees
that separation of soil from non-soil should be accomplished by simple physical or mechanical means.
This is reflected in the final regulations where soil is defined as "unconsolidated earth material composing
the superficial geologic strata (material overlying bedrock),consisting of clay, silt. sand, or gravel size
particles as classified by the U.S Soil Conservation Service, or a mixture of such materials with liquids,
sludges or solids which is inseparable by simple mechanical removal processes and is made up primarily of
soil." The Agency further agrees that, in situations where a treatment method results in destruction of the
media (e.g., in cases where an individual chose to incinerate contaminated soil) the remaining non-soil
residual would be subject to the applicable RCRA Subtitle C standards including the land disposal
restrictions.

EPA believes that the definition of soil currently provides adequate guidance on separation of soil from
non-soil treatment residuals. The Agency will address the need for additional guidance in this area if
experience implementing the program indicates it is necessary.

One commenter believes that guidance on methods for making the determination whether treatment
residuals are media or non-media will be necessary.

• "p. 18810. col. 2 -- Under the proposed rule, waste residuals would be managed according to
RCRA Subtitle C or Subtitle D requirements. Media residuals would remain subject to Part 269.
EPA requests comment on whether the Agency should address (in the form of regulations or
guidance) methods for determining whether treatment residuals are media or non-media. EPA also
solicits comment on whether the approach promulgated for residuals from treatment of hazardous
debris should be utilized and require that media and non-media treatment residuals be separated
using simple physical or mechanical means.

In many situations, simple physical or mechanical means may not serve to distinctly separate
treatment residuals that are media from those that are non-media. DOE suggests that guidance on
methods for makina the determination (i.e.. whether treatment residuals are media or non-media)
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will be necessary, but suggests that the guidance not be promulgated as pan of the regulations
because there may be multiple ways to make the determination that would be equally acceptable.
If one approach were promulgated, it might preclude the use of equally justifiable and possibly-
more suitable or cost effective methods.

In situations such as the preamble describes where certain treatment methods may completely
destroy the media treated, leaving only non-media residuals. DOE believes that the residuals
should be evaluated based on their own characteristics to determine whether they must be
classified as hazardous waste. If so. they should be required to meet LDR standards applicable to
other wastes which exhibit the same hazardous characteristics. If not, further management under
Subtitle C should not be required. DOE does not believe that protection of human health or the
environment is enhanced by requiring that non-media residuals (especially those that have
different physical or chemical attributes than the original hazardous waste that contaminated the
media) meet the LDR standards applicable to the wastes that contaminated the media. To justify
basing LDR treatment standards for non-media residuals on the characteristics of the residuals.
rather than on the LDR standards applicable to either the original contaminating wastes or the
contaminated media (if the change of treatability group pnncipie is applied as discussed in
Specific Comment V.C.S. item 1). DOE advocates using the change of treatability group
pnncipie." (60)

Response: The Agency is not persuaded, at this time, that additional guidance is needed on the separation
of soil from non-soil residuals. The Agency believes this will, in most cases, be a relatively straightforward
process: either a treatment method will be based on separation of contamination from soil in which case it
will result in clear soil and non-soil residuals or a treatment method will be based on stabilization or
immobilaziation of contaminants in soil, in which case it will result in a soil residual, or a treatment
method will be based on destruction of contamination in soil (i.e., incineration) in which case it will most
likely result in only a non-soil residual.

The Agency will address the need for additional guidance in this area if experience implementing the
program indicates it is necessary.

Some commenters are concerned about the landfill requirements of non-hazardous contaminated media.

» "The State of Utah recommends that the disposal of contaminated media, both above and below
the Bright Line, should only occur at either Subtitle C or D landfills. Only Subtitle D landfills built
in accordance with EPA standards wtr i require a clay and synthetic lining should be allowed to
receive non-hazardous contaminated n dia." (L-02)

Response: EPA is not, at this time, taking action on the portion of the HWTR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media
including contaminated soils and expanded the opportunities for regulatory agencies to exempt certain
remediation wastes from RCRA Subtitle C requirements. If. in the future, the Agency takes action to
establish a bright line, it will address these comments as necessary.

Residuals from treatment of contaminated soil will be regulated as discussed in the HWIR-Media proposal.
Non-media treatment residuals generated by treatment of contaminated soil which contains listed
hazardous waste or which exhibits a characteristic of hazardous waste, will be regulated as hazardous
waste, will remain subject to RCRA Subtitle C requirement including, if land disposed, applicable land
disposal restriction treatment standards. Media residuals (i.e., treated soil) will also continue to be
regulated as hazardous waste up to and until EPA or an authorized state determines that the soil no longer
contains hazardous waste (or until the soil no longer exhibits a hazardous characteristic).

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• "EPA proposes in 40 CFR 269.5--< ai( 1) to require media residuals to "be subject to the standards
of this part1 (referring to part 269). and proposed 40 CFR 269.12 restricts interstate movement of
contaminated media. Though EPA proposes to require media residuals to be managed per pan
269. pan 269 does not address disposal requirements other than to restrict interstate movement via
$269.12. It appears from the proposal that non-hazardous contaminated media could be land filled.
returned to the hole from which it came, or moved within the State uncontrolled. A mechanism is
required to control the ultimate disposal or future movement of non-hazardous contaminated media
after the end of the remedial action to prevent inappropriate placement. It is requested that a
section addressing disposal of non-hazardous media be added to the regulations. It is requested
that this provision require written notification to property owners whenever non-hazardous media
is transferred to another party. The notice should be required to identify the constituents and
concentration of contaminants known to be present in the media as well as the regulatory status of
the media (i.e. that the media was designated as no-longer containing hazardous waste). This will
ensure that though the media is no longer subject to RCRA regulation, knowledge of hazardous
substances will be maintained by property owners." (97)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media
including contaminated soils and expanded the opportunities for regulatory agencies to exempt certain
remediation wastes from RCRA Subtitle C requirements. Because the Agency has chosen, at this time, not
to go forward with those portions of the proposal, media treatment residuals (i.e.. treated soil) will continue
to be regulated under RCRA Subtitle C and will be required to comply with all applicable RCRA Subtitle
C requirements unless and until EPA or an authorized state determines that the treated soil no longer
contains hazardous waste or the treated soil no longer exhibits a characteristic of hazardous waste.

One commenter seeks clarification for what EPA considers "potential" for cross-media transfer. [Also see
Section 16.B regarding cross-media impacts.]

• "Not considering the environmental impact of the residuals unless there is a vague "potential" for
cross-media transfer seems unnecessarily limiting. Given the exposure scenario used for the risk
assessment performed, the adequacy of the site-specific data, and the cleanup numbers calculated.
what catena will be used to determine if a "potential" for cross-media transfer exists?" (73)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media
including contaminated soils and expanded the opportunities for regulatory agencies to exempt certain
remediation wastes from RCRA Subtitle C requirements. Because the Agency has chosen, at this time, not
to go forward with those portions of the proposal, media treatment residuals (i.e., treated soil) will continue
to be regulated under RCRA Subtitle C and will be required to comply with all applicable RCRA Subtitle
C requirements unless and until EPA or an authorized state determines that the treated soil no longer
contains hazardous waste, or if the treated soil no longer exhibits a characteristic of hazardous waste.

One commenter proposes a management matrix outlined in a table.

• "EPA requests comment on the management of treatment residuals. TDS proposes a management
matrix as outlined in Table 4. The Table is self-explanatory, though there are some points of note:

Just as in the case of media with constituents below the BL. TDS believes media is not suitable for
Subtitle D disposal if constituents exceed the exit levels developed for the HWIR-Waste rule.
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Media not meeting the criteria for disposal in Subtitle D would require Subtitle D management.
State decision makers would have tne option of deciding if the residual required further treatment
at a Subtitle C facility or was suuaole for disposal, without further treatment, in a Subtitle C
landfill.

Meeting the applicable 90c/c treatment standard does not of itself assure that the residual is of
sufficiently low hazard to no longer pose a threat in a Subtitle D environment.

For example, soil contaminated with benzene at 4000 mg/kg, well above the 500 mg/kg BL. would
receive treatment to the 90% standard, resulting in a reduction of the benzene level in the treated
soil to 400 mg/kg. Is this now suitable for Subtitle D disposal? Upon subjecting the treated soil to
the TCLP, the extract has a benzene level of 5 ma/1, an entirely plausible outcome since the TCLP.
at a 20 to 1 dilution, could yield an extract of 20 mg/1 (400 mg/kg divided by TCLP dilution factor
of 20).

In this case the treated media still exhibits the characteristic for benzene, a DO 18 waste. The
treated media also exceeds the HWIR-Waste exits of 110 mg/kg and .0054 mg/1. If managed off-
site, this treated media would have to be sent to a Subtitle C facility. The overseeing agency could
determine that direct disposal in a Subtitle C landfill would suffice or could mandate additional
treatment. Such flexibility is significant since current direct disposal costs for Subtitle C landfills
are well under SI00/ton." (25)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media including contaminated soils and expanded the opportunities for regulatory agencies to
exempt certain remediation wastes from RCRA Subtitle C requirements. If, in the future, the
Agency takes action to establish a bright line, it will address these comments as necessary.

Residuals from treatment of contaminated soil will be regulated as discussed in the HWIR-Media
proposal. Non-media treatment residuals generated by treatment of contaminated soil which
contains listed hazardous waste or which exhibits a characteristic of hazardous waste, will be
regulated as hazardous waste, will remain subject to RCRA Subtitle C requirement including, if
land disposed, applicable land disposal restriction treatment standards. Media residuals (i.e..
treated soil) will also continue to be regulated as hazardous waste up to and until EPA or an
authorized state determines that the soil no longer contains hazardous waste (or until the soil no
longer exhibits a hazardous characteristic).

One commenter argues that the management of nonhazardous treatment residuals should generally
be approved by the oversight state.

• "BFI believes that the management of nonhazardous treatment residuals— except their
disposal in a permitted subtitle D landfill unit— should be approved by the oversight state.
BFI believes that the state with oversight authority should make the determination that the
residual is safe for its intended use or replacement to the land without further controls.
This requirement for approval is important for both media and non media waste streams.

If the treatment residual is to be managed outside of a permitted subtitle D landfill, then
the oversight State responsible for approving the remedial management plan (RMP) needs
to know the ultimate disposition of the material. The oversight State needs to affirmatively
determine that any residual risks from other management methods will be within levels
that are appropriate. This kind of decision can be easily and more reliably made on a
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case-by-case base by the oversight agency, than simply relying on the mechanical
approach set forth under the debris rules that the Asency is proposine to adopt, if a
treatment residual is sent to a permitted landfill under subtitle D of RCRA. there ore
sufficient substantive and administrative controls to assure safe disposal. Disposal or reuse
outside of a permitted landfill under subtitle D will not be subject to any oversight unless
the disposal or reuse issue is directly addressed in the RMP." fill)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that
would have established a "bright line" to distinguish between higher- and lower-risk contaminated
media including contaminated soils and expanded the opportunities for regulatory agencies to
exempt certain remediation wastes from RCRA Subtitle C requirements. Because the Agency has
chosen, at this time, not to go forward with those portions of the proposal, media treatment
residuals (i.e.. treated soil) will continue to be regulated under RCRA Subtitle C and will be
required to comply with all applicable RCRA Subtitle C requirements unless and until EPA or an
authorized state determines that the treated soil no longer contains hazardous waste or the treated
soil does not exhibit a characteristic of hazardous waste.

The following commemer is opposed to requiring what it believes to be rigid
requirements for the management of treatment residuals.

"We encourage the Agency to avoid adding yet more complication to the already over
complicated Bright Line approach by establishing rigid requirements for the management
of treatment residuals. In general, treatment goals in remediation are established with the
final disposition of the material to be treated in mind. For example, soils intended for
reuse on site as fill might be treated to an industrial land use direct contact based risk goal,
while material that will be consolidated and covered might be treated to minimize
groundwater impact in consideration of the effectiveness of the cover. The Agency is
already proposing to interfere with these determinations via generic treatment
requirements, they should not do so via generic management requirements for treated
materials.

In general, three forms of treated materials arise from remedial technologies. Those
comprise media treated with a destructive technology to reduce the concentration of
constituents in the media (e.g. via bioremediation), media from which the contaminant has
been removed and concentrated or destroyed (e.g. via soil washing, thermal desorption.
ex-situ vapor extraction, air stripping) and media in which the mobility/bioavailability of
the contaminants has been reduced (e.g. pozzolonic stabilization, bio/phytostabilization,
geochemical alteration). Only in the case of concentrated contaminants separated from the
media should EPA impose additional management standards (for example liquid organics
generated by soil vapor extraction and condensation). The treated media itself should be
managed per a site-specific RAP.

For example, a DuPont subsidiary is undertaking remediation to redevelop a brownfield
type property. The remediation will involve the soil washing of a large quantity of soil.
followed by the reuse of that soil as fill in this industrial/commercial development. The
soil is being treated to concentrations that satisfy numeric criteria developed by the State
and the Region for both direct contact and groundwater protection. However, due to the
geochemical nature of the site soils, and the unrepresentativeness of the TCLP test, the
treated soil continues to "fail" TCLP for the metal of interest after treatment, even though
it passes the more representative SPLP-based groundwater protection criteria. The soil will
not be placed in a sanitary landfill and will never see the aggressive conditions represented

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by the TCLP. However, the TCLP almost derailed the remediation, and only ;he use or a
CAMU is allowing it to move forward. Any sort of mandatory requirement regarding the
management of residuals under the Agency's proposed approach to H\VIR. under which
the CAMU would be rescinded, would probably block this protective remedial strategy
and potentially scuttle this brownfieid redevelopment. We also note that this example
illustrates that definitions of "hazardous" have absolutely nothing to do with the nsk
represented by remediation waste or the proper approaches to managing them m a
protective manner.

b. Stabilized materials are not waste residuals

It would be particularly inappropriate to manage stabilized materials as waste residuals.
The stabilization process is an effective treatment to reduce mobility or bioavaiiability of
constituents: the result is a "clean" treated material. To then treat that material as a waste
completely undoes the benefits of the treatment. In fact, to then dispose of solidified
materials in a landfill may well expose them to conditions more likely to leach constituents
than on-site placement of those materials.

EPA proposes that non-media residuals from the treatment of media be subject to the RCRA
Subtitle C or D standards applicable to the waste contaminating the media before treatment.
On this basis, treatment of a media that is contaminated with a listed hazardous waste would
require the non-media residuals from that treatment to be managed as if it were the same listed
hazardous waste. We disagree.

EPA has stated on numerous occasions that the mixture rule does not apply to contaminated
media because it is not a mixture of a listed waste and a solid waste. Therefore, the
contained-in principle applies to contaminated media. Neither the mixture nor derived-from
rules should apply to treatment residuals since neither applied to the media in the first place.

Clarification of the applicability of LDR standards to treatment residuals is also needed. For
example, media for which a contained-in determination has been made pnor to removal, and
that is contaminated with waste disposed prior to the effective date of the applicable LDR
standards, is not required to meet the LDR standards in Subpart C of PartE269. Residuals
from the treatment of such media should likewise not be subject to the LDR standards.
EPA indicates that the proposal is meant to be consistent with the AgencyOs approach to
residuals from the treatment of hazardous debris. However, the debris rule language
(H268.45(d)) is specific to the applicability of the LDR treatment standards. It is not
intended to invoke a broader range of Subtitle C standards for the management of
treatment residuals. The media and non-media residuals from the treatment of a media
contaminated with a listed waste should only be subject to characterization via Subpart C
of Part 261 to determine if they exhibit a characteristic." (117)
Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media
including contaminated soils and expanded the opportunities for regulatory agencies to exempt certain
remediation wastes from RCRA Subtitle C requirements. Residuals from treatment of contaminated soil
will be reaulated as discussed in the proposal. Non-media treatment residuals generated by treatment of
contaminated soil which contains listed hazardous waste or which exhibits a characteristic of hazardous

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waste, will be regulated as hazardous waste, will remain subiect to RCRA Subtitle C requirement
including, if iand disposed, applicable land disposal restriction treatment standards. Media residuals i i.e..
treated soil) will also continue to be resulated as hazardous waste up to ana until EPA or an authorized
state determines that the soil no longer contains hazardous waste (or until the soil no longer exhibits a
hazardous characteristic i.

The Agency is not persuaded, at this time, that this approach is overly complex or inappropriate.
Regarding complexity, the Agency believes distinguishing between soil and non-soil residuals will, in most
cases, be a relatively straightforward process: either a treatment method will be based on separation of
contamination from soil in which case it will result in clear soil and non-soil residuals or a treatment
method will be based on stabilization or immobilization of contaminants in soil, in which case it will result
in a soil residual, or a treatment method will be based on destruction of contamination in soil (i.e..
incineration) in which case it will most likely result in only a non-soil residual.

Regarding whether it is proper to require that non-soil residuals generated by treatment of soil that contains
a listed hazardous waste or exhibits a characteristic of hazardous waste, be manged as hazardous waste, the
Agency is not persuaded that non-soil treatment residuals should be exempted from RCRA Subtitle C
requirements (even if it were possible under law to provide such an exemption). Non-soil treatment
residuals will be generated through application of separation technologies. The Agency believes it is
reasonable to expect, therefore, that contamination will be concentrated in non-soil treatment residuals.
therefore, in the case of non-media residuals from treatment of hazardous contamianted soil, it is
reasonable to require the residuals be managed as hazardous waste.

The following commenters argue that stabilized media are not hazardous materials and therefore should
not be regulated as such.

• "VI. Stabilized Media Which Meet the Requirements of Part 266 Should Not Be Considered
Waste Residuals and Should Not Be Subject to RCRA Subtitle C or D Standards.

Under Section V.C.7. (61 Fed. Reg. at p. 18810) of the HWIR-Media proposal. EPA requested
comments regarding regulatory standards for the management of non-media treatment residuals.
EPA specifically questioned whether residuals from treating media using stabilization technologies
(stabilized media) should be considered waste residuals and subject to RCRA subtitle C or D.

Currently, stabilized media which is applied to the land is regulated under the requirements of a
RCRA exemption in 40 C.F.R. Part 266. As discussed above, under Part 266. Encapco products
must meet specific criteria before beina applied to land. The recyclable materials in such products
must have undergone a chemical reaction in the course of producing the product so as to become
inseparable by physical means. Such products must also satisfy the current Part 268 land disposal
treatment standards. Such products must also constitute legitimate recycling, and must be
produced for the general public's use. See 40 CFR 266.20(b). Any further regulation of these
recycled materials would bar the use of Encapco's stabilization technology. Stabilized materials
that meet the requirements of Part 266 should not be subject to a wholesale designation of
stabilized media as waste residuals. It is clear that the exemption for recycled stabilized media
should be maintained." (53}

Response: The exemption for hazardous waste derived products in 40 CFR Part 266 is not affected by
today's action. Therefore, hazardous waste derived products made with treated contaminated soil (i.e.. soil
that contains listed hazardous waste or exhibits a characteristic of hazardous waste) will continue to be
eligible for the exemption. However, as discussed in the preamble to today's action, the Agency will
continue to require that such hazardous waste derived products achieve the existing land disposal

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restriction treatment standards (i.e.. the applicable universal treatment standards rather than tne soil
treatment standards).

EPA also notes that there are significant questions as to the adequacy of even current LDR standards for
hazardous wastes used in a manner constituting disposal. For example, the stabilization process aces not
reduce total metals concentrations. Yet total metals (rather than extractable metals) could be a highly
relevant consideration in assessing potential harm from this manner of use oecause of the greater likelihood
of direct dispersion of the waste (since it is not buried as in a landfill, and also can be exposed to dierect
contact, as perhaps by vehicles or other day-to-day contact). Thus, the Agency views the current rules as
stop-gap, and for this reason is not making the standards any more lenient. See 50 FR at 647 And 53 FR at
17605 (May 17. 1988).

• "Although CMA believes retreatment to attain applicable, modified, generic LDR standards may
be appropriate for as generated process wastes, CMA does not believe such retreatment is
appropriate for contaminated media. Assuming proper care was taken when conducting treatment.
failure to achieve the proposed treatment standard should demonstrate the inability to achieve
standards derived for process wastes which are inapplicable to remediation. Such failure likely
results from matrix-specific difficulties wnich retreatment is unlikely to alleviate. Thus, treatment
by the appropriate methods should automatically qualify media for 'exit" from LDR requirements.
If such an automatic exit is not provided. CMA supports a strong presumption that a variance will
issue to such media.

Stabilized media is not a waste, and should not be considered a residual from treating a waste. This
is particularly true of media which have been determined to no longer contain hazardous waste.
Instead, stabilized media should be considered a media residual. Although CMA does not believe
there is much ambiguity. EPA should clarify by guidance or regulation that such media is not a
waste residual. As a media residual, stabilized medial should not be subjected to any further
treatment, once it has met the performance requirements for strength, leachability, etc.. specified in
the RAP.

CMA does not believe that such separation should be required. In contrast, physical or mechanical
separation which can be accomplished is required to assure that materials to be treated meet the
proposed definition of meaia. Failure to separate waste or other materials - such as debns - r'rom
• the media would require treatment of the mixture as a waste under full Subtitle C requirements.
Further, separation of media is often more difficult than separation of debris." (112)

Response: The commenter makes three suggestions: (1) if, after initial treatment, hazardous contaminated
media does not meet the soil treatment standards it should, nonetheless be considered to have complied
with LDRs provided reasonable care was taken in operation of the treatment system: (2) hazardous
contaminated media treated by stabilization should be considered a "media residual:" and. (3) separation of
media is often more difficult than separation of debris.

EPA is not persuaded that if, after initial treatment, hazardous contaminated media does not meet the soil
treatment standards it should, nonetheless be considered to have complied with LDRs. EPA notes that, in
these cases, if a model treatment technology were properly used (i.e.. one of the technologies on which
EPA based the LDR treatment standard) the generator woulcTlikely qualify for a treatment variances based
on the standard that the otherwise applicable LDR treatment standard was unachieveable.

EPA agrees that stabilized media should be considered a media residual. This issue is discussed further in
the preamble to today's action.
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While separation or" media may be more difficult than separation of debris EPA is not persuaded that it
-houid. therefore, not be required. The definition of soil, however, makes it clear that EPA'5 expectation is
only for the type of separation that can oe accomplished using simple physical or mechanical means.

One commenter believes there is no reason to apply the generic LDR treatment standards proposed
in the rule to non-media treatment residuals.

• "Under the proposed rule, waste residuals from the treatment of hazardous contaminated
media would be managed according to applicable RCRA Subtitle C or Subtitle D
requirements for hazardous wastes and non - hazardous wastes, respectively. Media
residuals would remain subject to 40 CFR part 269 requirements. The Agency requests
general comment on this approach and whether regulatory standards for the management
of non-media treatment residuals are necessary under Part 269.

Comment: Ohio EPA does not support the development of regulatory standards, under 40
CFR part 269. for the management of non-media hazardous treatment residuals. Such
residuals which do not contain media are 'as-generated' wastes and should be managed in
accordance with current Subtitle C requirements and 40 CFR pan 268 LDR universal
treatment standards. The generic LDR treat standards should only be applicable to
residuals that still contain media since the interfering matrix is still present.

A purpose of this rule is to develop treatment standards that are more applicable to treating
hazardous constituents contained in a matrix that complicates or inhibits the treatment of
the constituents. Non-media treatment residuals result from the removal of hazardous
constituents from the contaminated media and are 'as -generated' wastes. The complicating
factor (the media matrix) is no longer present. Therefore, there is no technical reason to
apply the generic LDR treatment standards proposed in the rule to non-media treatment
residuals. In addition, to apply the generic LDR treatment standards to non-media
treatment residuals or non-media remedial wastes would weaken the basis for the existing
LDR program." (L-l)

Response: EPA agrees that non-media treatment residuals from treatment of hazarodus contamiamed soil
(i.e., soil that containes hazardous waste or exhibits a characteristic of hazardosu waste) should be
considered hazardous waste. These residuals will be subject to all applicable subtitle C requirements.
including applicable land disposal restriction treatment standards.
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CHAPTER FIVE
SOIL-RELATED COMMENTS FROM PHASE H LDR PROPOSAL

5.A EPA'S DEFERRAL OF SOIL TREATMENT STANDARDS AND APPLICATION
OF THE CONTAINED-IN POLICY TO CONTAMINATED MEDIA (See Sections
5.B and 5.C)

• ''Comprehensive and Consistent Policy for Environmental Media

This Rule proposes to codify the contained-in policy; an action that would bring all
hazardous waste-impacted environmental media under Subtitle C jurisdiction. EPA
states that "it is not possible to predict at this time precisely how, or if, the Agency may
attempt certain hazardous soils from Subtitle C in future actions, or how these
exemptions (if such exemptions are developed) might compare with the LDR treatment
standards proposed here for contaminated soils." 58 Fed. Reg. 48123.

The Agency is proceeding concurrently with redevelopment of a proposed Hazardous
Waste Identification Rule (HWIR ) and implementation of Corrective Action
Management Unit (CAMU) regulations. One of the HWIR's objectives is to establish
exit levels at which hazardous waste will no longer be subject to RCRA Subtitle C.

Should the proposed codification of the contained-in policy take effect, a generator
would have to seek a formal determination form the Regional administrator to
determine whether the previously contaminated media still contained hazardous waste.
Thus, the only exit available from this characterization would be a detailed formal
process that would significantly limit expedient cleanup and closure. Much of the same
media that this proposed rule will affect may ultimately excluded by the HWIR upon its
promulgation in 1994. Since EPA is not under any mandate to issue these specific
LDRs at this time. AWPI recommends that the Agency wait until the HWIR is
promulgated and consider the impact of that rule and the CAMU regulations on this
proposed rule. The benefits of such an action would include consistent regulatory
policy." (American Wood Preservers Institute, CS2P-00047)

• "MPA also endorses EPA's recent decision to defer action on the proposed rule as it
relates to the remediation of contaminated soils until the Agency completes the
Hazardous Waste Identification Rule ("HWIR") for contaminated media. See 58 Fed.
Reg. 59976 (Nov. 12, 1993). The HWIR rulemaking process has been evaluating risk-
based approaches to cleanup that will avoid the imposition of overly-conservative
cleanup requirements that favor one type of remediation (e.g., incineration) over
another (e.g., containment). In this context, adoption of the proposed universal
treatment standards would represent a step backwards in the Agency's on-going
evaluation of alternate, risk-based standards. Accordingly, MPA recommends that
adoption of the proposed universal treatment standards for EMA and MMA be delayed

pending completion of the HWIR rulemaking, and that the proposed standards be
-------
revised to take into account risk-based HWIR principles

For all these reasons. MPA strongly recommends that EPA delay adoption of the
proposed universal treatment standards for EMA and MMA and that the Agency adjust
the proposed standards based on health and risk related criteria. Ample toxicology data
are available to undertake such an exercise. Use of this approach holds the promise of
rationalizing the permitting and remediation approach taken for EMA and MMA.
Pushing forward with the proposed standards, on the other hand, could undermine the
Agency's initiative in identifying technologically-neutral, health-based standards for
remediating hazardous wastes that are "contained in" contaminated media."
(Methacrylate Producers Association. CS2P-00056)

'API believes that EPA's plans to impose standards on those contaminated soils is
premature and unnecessary, as well as inconsistent with EPA's own acknowledgment of
the distinct difference between the management of contaminated soils and wastes. In
addition, imposition of LDR standards on such soils by July 1994 would make it
virtually impossible for EPA to coordinate those standards with revisions to the
hazardous waste identification rules (HWIR) that will not be promulgated before
October 1994. API urges EPA to reconsider its announced intention, and to postpone
LDR standards for contaminated soil until EPA has time to adequately consider
comments on that matter and to coordinate those rules with the anticipated 1994
HWIR." (American Petroleum Institute, CS2P-00061)

"In addition we urge, as discussed below, the extension of this coordination of HWIR
to universal treatment standards (UTSs) and to treatment standards at levels below the
characteristic.

Unocal joins API in urging EPA to revise its approach to UTSs by using a risk based
approach in developing UTSs. It would be redundant to promulgate technology based
UTSs when, at the same time, the HWIR committee is addressing the risk issue for
treatment of residues and waste mixtures. EPA has recognized the importance of
coordinating the contaminated media and debris LDRs with the HWIR effort by
granting both a four month extension of the comment period for this issue and a two
year national Capacity Variance for contaminated media and debris in this proposed
rule." (Unocal Corporation, CS2P-00074)

"GE supports EPA's deferment on that portion of the rule concerning the development
of soil treatment standards and application of the contained-in principle to contaminated
soil. Far from demonstrating, or even addressing, the risks posed by contaminated soil
and how the proposed regulations would substantially reduce those risks, EPA had
mechanically proposed to impose standards designed for the prospective regulation of
as-generated wastes on the management of contaminated media without any apparent
evaluation of the environmental, practical, and economic impact of its proposal. Also.

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EPA's proposed approach to codify the ''contained-in" interpretation using a mini-
delisting scheme would have imposed unreasonable burdens on industry and diverted
already limited agency resources from programs that address actual risks to human
health and the environment. Moreover, to address these issues in the proposed rule
would have only undermined the progress achieved by the HWIR Federal Advisory
Committee process on these issues

EPA should defer action on all aspects of the proposed rule concerning hazardous soil
and other media until completion of the HWIR dialogue

IV. EPA Should Defer Action on the Proposed Soil Treatment Standards

In light of the progress made in the HWIR dialogue, GE supports EPA's deferment on
the proposed treatment standards for hazardous soil. The HWIR process has resulted in
substantial agreement among all the participants that many Subtitle C requirements are
appropriate for most hazardous soils. EPA's proposed treatment standards thus are a
step in the wrong direction and. if finalized, may threaten the progress in the HWIR
dialogue." (GE, CS2P-00076)

"The U.S. EPA has been working for a number of months in the context of a chartered
Federal Advisory Committee on the Hazardous Waste Identification Rule (HWIR) to
define how to provide greater flexibility during the remediation of contaminated media
at hazardous waste sites. In response to these deliberations, the U.S. EPA is beginning
to develop proposed rules for contaminated media, including hazardous soils using the
so-called "Harmonized Approach" and will involve States on key issues through a
newly formed State/U.S. EPA Advisory Committee. The interrelationships between
these proposed LDR rules for hazardous soils and the HWIR contaminated media rule
under development are very difficult to discern. We have found it difficult to
meaningfully comment on the proposed treatment standards for hazardous soils without
a clear understanding of the overall regulatory framework which will apply to
hazardous soils under RCRA, and CERCLA as well (we are told that it is being
considered). Accordingly, we recommend that action on the LDR treatment standards
for hazardous soils he postponed and reconsidered within the context of the HWIR
contaminated media rule under development. This sequence would facilitate the U.S.
EPA and the States developing an internally consistent regulatory approach for the
management of hazardous soils at remediation sites. We also recommend that all U.S.
EPA contaminated media related policies, regulations and standards be evaluated and
integrated in a consistent manner. Only then will a rational and effective way of
dealing with contaminated media be established." (Association of State and Territorial
Solid Waste Management Officials. CS2P-00091)
"Amoco supports the deferral of LDRs for centralized wastewater management systems

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and contaminated soils.

With respect to contaminated soils. EPA has proposed three different approaches to
setting treatment standards. EPA is also developing a proposal for contaminated media
(including soil) in the context of the Hazardous Waste Identification Rule (HWIR)
Roundtable. Establishing LDRs for contaminated soil also involves a number of
complex technical and regulatory issues that require detailed study. Therefore Amoco
supports EPA's decision to extend the comment period for the portions of this proposed
rule related to contaminated soils and the contained-in rule.

Amoco submits, however, the EPA should not receive separate comments on those
portions of this rule, but should re-propose contaminated soil LDRs in the context of
the HWIR proposal. EPA and commenters could then review a more complete and
coordinated regulatory approach to contaminated media and simultaneously address
related questions such as when contaminated media should be managed as a hazardous
waste, whether a tiered management approach is appropriate, and whether
concentration-based exit criteria should be equivalent to the LDRs. Such a coordinated
approach will result in a more effective review and comment process." (Amoco
Corporation, CS2P-00097)

• "EPA should adopt reasonable, risk-based treatment standards for hazardous soils.
However, resources and energy should be directed towards the development of self
implementing, risk based exit criteria, such as those under discussion at the Hazardous
Waste Identification Rule roundtable, rather than being dissipated in redundant rule
makings." (Rohm and Haas Company, CS2P-00114)

Response: All of the commenters in the preceding section supported deferral of a decision on
LDR treatment standards for contaminated soil to the Agency's Hazardous Waste Identification
Rule for Contaminated Media (HWIR-Media) rulemaking process. In consideration of these
comments, the Agency did defer a decision on soil treatment standards to the HWIR-Media
rulemaking and proposed modified soil treatment standards as part of the HWIR-Media
proposal. Comments responding to the soil treatment standards proposed in HWIR-Media are
addressed in the HWIR-Media response to comments document, included in the docket for
today's rulemaking.

• "Treatment Standards for Hazardous Soils (Section VII)

CMA supports EPA's decision to extend the comment period for the hazardous soil
standards.

CMA understands that EPA has decided to extend for several months the comment
period on the contained-in policy and hazardous soil standards. CMA appreciates
having the opportunity to gather data to determine whether and how EPA's proposed

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standards can actually be met. Meanwhile. CMA urges EPA not to apply the proposed
UTS as applicable to soils contaminated with hazardous wastes." (CMA, CS2P-0122)
[Note: Uniroyal Chemical Company. Inc.. CS2P-00140, also supported CMA's
petition to EPA to extend the comment period on soil standards and the contained-in
policy.]

"Conoco appreciates the extension EPA has granted on the hazardous soils portion of
this proposed rulemaking, including the soil standards, contained-in determinations and
capacity variances. Conoco encourages EPA to incorporate the soil LDRs into the
broader context of the Hazardous Waste Identification Rule(HWIR). A separate soil
LDR rulemaking in advance of the HWIR will onlv lead to confusion and resulatorv
o j ^ *
conflict. Conoco plans to comment further on these issues during the extension
period." (Conoco, CS2P-00126)

"First, EPA has been working for a number of months in the context of a chartered
Federal Advisory Committee on the Hazardous Waste Identification Rule (HWIR) to
define how to provide greater flexibility during the remediation of contaminated media
at hazardous waste sites. In response to these deliberations. EPA is beginning to
develop proposed rules for contaminated media, including hazardous soils, using the
so-called "Harmonized Approach" and will involve states on key issues through a newly
formed State/EPA Advisory Committee. The interrelationships between these proposed
LDR rules for hazardous soils and the HWIR contaminated media rule under
development are very difficult to discern. We have found if difficult to meaningfully
comment upon the proposed treatment standards for hazardous soils without a clear
understanding of the overall regulatory framework which will apply to hazardous soils
under RCRA. Accordingly, we recommend that action on the LDR treatment standards
for hazardous soils be postponed and reconsidered within the context of the HWIR
contaminated media rule under development. This sequence would facilitate EPA and
the States and the States developing an internally consistent regulatory approach for the
management of hazardous soils at remediation sites." (TNRCC. CS2P-00145)

"On May 20, 1992 (57 FR 21450) EPA proposed an extensive overhaul of the RCRA
hazardous waste identification rules (HWIR) that would address the issue of media
(including soils and ground water) containing hazardous wastes. BN believes that the
issues addressed in May, 1992 are similar to those addressed in September, 1993 and
that any attempt to pursue these issues piecemeal is not productive. The whole problem
of contaminated media must be addressed as a single issue and the proposed attempt to
define treatment standards without addressing the basic issue of the "contain in" rule as
a whole is not productive. BN encourages EPA to address the treatment standards for
contaminated media concurrently with the HWIR for those same materials."
(Burlington Northern Railroad. CS2P-00148)

"NPRA strongly supports EPA's action to include this rulemaking on land disposal

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restriction for soils as part of the HWIR contaminated media rulemaking process. We
believe that EPA's action to include this rulemaking under HWIR will provide
consistency in applying RCRA hazardous waste requirements to site cleanups, and will
not result in two rules covering the same topic.

NPRA encourages EPA to continue the HWIR rulemaking process for both
contaminated media and process wastes. Current land disposal restrictions (LDRs)
create strong disincentives for managing wastes at site cleanups and often eliminate
many cost effective cleanup options. NPRA supports the effort being discussed in the
HWIR roundtable which would allow State management of the remediation process
under an approved remedial action plan without being regulated under RCRA Subtitle
C hazardous waste and LDR provisions." (National Petroleum Refiners Association.
CS2P-00159).

"BP Oil supports EPA's intention to use the HWIR rulemaking as the vehicle for
establishing treatment standards for hazardous soils.

The Hazardous Waste Identification Rule (HWIR) process is providing opportunity for
deliberative development of a hazardous media management program that could offer
substantial regulatory reform. The objective of the process is to develop reforms which
allow for cost-effective, site-specific remediation practices for contaminated soils and
other media which are fully protective of human health and the environment. HWIR
rules are now expected to be proposed in January, 1995. Application of land disposal
restriction (LDR) requirements to hazardous media prior to completion of the HWIR
rulemaking may interfere with adoption of the HWIR reforms. At a minimum.
substantial confusion will result for the regulated community if hazardous soil LDRs
are implemented and then requirements are revised when the HWIR reforms are
completed.

Applying waste LDR standards to soils is inconsistent with FPA's acknowledgment that
there is a distinct difference between appropriate management for contaminated soils
and wastes.

The Agency notes in the March 8. 1994 clarification notice that by deferring the soil
LDR requirements to the HWIR rulemaking effort, hazardous soils will be subject to
the same LDR standards that apply to the hazardous wastes with which the soils are
contaminated. New LDR requirements (the Universal Treatment Standards (UTS)) for
wastes with existing LDR standards and LDR requirements for Toxic Characteristic
(TC) (D018-D043) wastes and for primary sludge (F037/F038) were proposed on
September 14, 1993. EPA plans to promulgate these waste LDR standards by July,
1994. We strongly urge EPA to reconsider application of the waste LDR standards to
contaminated soil prior to the anticipated rulemaking. The UTS are based on
combustion or incineration which is simply not suitable technology for managing most

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contaminated soils. EPA notes (55 FR 8760. March 8. 1990) "...because contaminated
soil and debris is significantly different from the wastes evaluated in establishing the
BDAT standards, it cannot be treated in accordance with these standards..." (BP Oil.
CS2P-00163).

"On March 8. 1994, EPA announced its decision to address contaminated media issues
(including those raised in the November 15, 1993 LDR proposal) as part of the
Hazardous Waste Identification Rule (HWIR) for contaminated media rather than
proceeding with the LDR rule (59 FR 10778). In that notice, EPA stated that "this
HWIR rule is intended to replace the existing regulatory system under RCRA, which
heretofore has regulated the management of hazardous contaminated media in much the
same way that the generated hazardous wastes are regulated." Asarco supports EPA's
decision not to finalize the LDR proposal for hazardous soil and believes that the full
range of issues related to contaminated media (including but not limited to the
"contained-in policy," the definition of hazardous soil, and whether EPA should apply
RCRA LDR treatment standards to sites being remediated under other authorities)
should be addressed in a coordinated fashion through the HWIR process. This
document presents Asarco's comments on the portions of the proposal that relates to
hazardous soil, and we hope that the comments will be useful as EPA continues the
HWIR process. We intend to submit comments on HWIR proposals when they are
released by EPA." (ASARCO, CS2P-00166)

"API Agrees With EPA that Treatment Standards for Hazardous Soils Should be
Addressed in the Hazardous Waste Identification Rule (HWIR)

API. like EPA, believes that LDR standards for hazardous soils should be considered in
the context of a comprehensive regulatory program for the management of hazardous
waste contaminated media (including soil and ground water). Therefore, API strongly
endorses EPA's decision to re-propose the soil LDR standards in the upcoming HWIR
proposal. As EPA acknowledged in the Supplemental Notice, it is difficult to assess
the merits of applying the universal standards (or a multiple thereof) to a particular
volume of hazardous soils without also considering the suite of other regulatory
requirements with which a regulated entity would have to comply as a result of
managing the hazardous soil.

For example, is it appropriate to require a RCRA permit to store the hazardous soil
prior to treatment? Is it appropriate to design a waste pile to meet RCRA minimum
technology requirements (MTRs) if the unit is only going to be used once - and only
for a very limited period of time - to store soil prior to treatment? Does the need to
obtain an LDR treatability variance for hard to treat soils unnecessarily complicate and
delay the cleanup process?

These and many other important management considerations are absent from the Phase

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n proposal, which only addresses what one must do to the soil before one can
of it in a hazardous waste landfill. .API believes that soil treatment standards should be
made on a site-specific basis taking into consideration at a minimum: (1) the potential
for human or environmental exposure to the soils in question. (2) the current and
anticipated use of the site. (3) the type and degree of contamination. (4) the geologic
and hydrogeologic setting, and (5) the practicability of various site remedy alternatives
and their differential costs and human health and environmental benefits. The
application of 'cookie cutter' or 'one size fits all' technology-based treatment standards.
like those proposed in the Phase n LDR rule for hazardous soil, negates the importance
of the criteria mentioned above in addressing differential site circumstances. Thought
it may be appropriate to apply Phase n type standards in certain situations, they should
not be applied universally to all hazardous waste-contaminated soil. Additionally, the
treatment standards in and of themselves will not begin to address - and may contribute
to - the already long list of existing disincentives to cleaning up hazardous waste-
contaminated media already built into the Subtitle C program (including MTRs. RCRA
permitting and LDR soil treatability variances).

It is for the reasons elaborated upon above that API supports the development of a
comprehensive hazardous waste contaminated media management scheme, where soil
treatment standards would be but one part of that scheme. As EPA is aware. API has
been an active participant on the Federal Advisory Committee (Roundtable) making
recommendations to EPA on a hazardous waste identification rulemaking (HWIR). A
subgroup of the HWIR Roundtable has developed a 'harmonized approach' for the
management of high risk and low risk hazardous waste contaminated media that EPA -
with the assistance of select state regulators — is currently drafting into a proposed
rulemaking. API supports the tenets of the 'harmonized approach.' and believes that
soil treatment requirements will play a role in that proposal, and consequently sees no
need for the Agency to move separately with soil treatment requirements in advance of
the HWIR proposal'." (API. CS2P-0(H69)

"API strongly supports EPA's decision to delay promulgation of soil treatment
standards. API agrees with EPA that such standards should be included in a
comprehensive contaminated media proposed rulemaking, such as the HWIR proposal.
To that end, API plans to continue its efforts of working with EPA to develop the
HWIR contaminated media proposal." (API. CS2P-00169)

"The enclosed AMC comments, however, remain timely and relevant. Before
developing LDR requirements for soils at mineral processing facilities, the agency must
first establish treatment standards for newly-identified mineral processing wastes. EPA
has been correctly and considerably concerned about the technical feasibility of
imposing on characteristically hazardous mineral processing wastes the same treatment
standards as apply to other characteristically hazardous wastes. There should be an
equally strong concern as to whether treatment standards for "hazardous" soil in general
-------
would be technically feasible for ''hazardous" soil at mineral processing facilities.
AMC urges EPA to conduct a single, comprehensive rulemaking addressing all LDR
issues, including ''hazardous" soil, associated with mineral processing facilities.'
(American Mining Congress. CS2P-00173)

"EPA should not impose any LDR requirements on soil at mining and mineral
processing facilities until the Agency establishes treatment standards for newly-
identified mineral processing wastes and completes the HWIR process." (American
Mining Congress. CS2P-00173)

"H. EPA SHOULD NOT IMPOSE .ANY LDR REQUIREMENTS ON SOILS AT
MINING AND MINERAL PROCESSING FACILITIES AT THE PRESENT
TJME.

AMC strongly opposes the imposition at this time of LDR treatment standards on soils
at mining and mineral processing facilities. As discussed further below, such soils
present unique issues that have not been considered by EPA. Moreover, it would be
improper to impose LDR requirements on soil contaminated with newly identified
mineral processing wastes before the wastes themselves are subject to LDR standards.1
EPA has rightly expressed considerable concern as to whether it would be technically
feasible to impose the treatment standards for characteristic hazardous wastes on
characteristic mineral processing wastes. See 56 Fed. Reg. 55160, 55183 (Oct. 24,
1991). The Agency should be equally concerned as to whether the treatment standards
being developed for "hazardous" soil in general will be technically feasible for
"hazardous" soil at mining and mineral processing facilities.

In view of the complex issues presented by the potential application of LDR treatment
standards to "hazardous" soils at mining and mineral processing facilities. AMC urges
EPA to evaluate all LDR issues associated with mining and mineral processing facilities
in a single, comprehensive rulemaking, to be conducted after completion of the HWIR
process." (American Mining Congress, CS2P-00173)

"WNG requests EPA to aggressively develop both the LDR and HWIR in a timely
manner. This would allow industry to progress with cleanup and would result in a
cleaner environment for all." (Williams Natural Gas Company, CS2P-00175) [Also see
Chapter 27. A]

"Conoco applauds EPA's decision to merge the soil LDRs with the HWIR proposal.
However, in the interim, relief in the form of an OTC deferral for non-UST petroleum
'AS noted in AMC's November 15. 1993 comments on the proposed Phase n rule. EPA plans to establish LDR treatment
standards tor newly identified mineral processing waste as part of its "Phase IV" LDR rule, currently scheduled for promulgation in
1996. See. e.g. 58 Fed. Reg. 57.045 (Oct. 25. 1993).

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contaminated media or a nation-wide capacity variance for petroleum contaminated
media is necessary.

Conoco welcomes this opportunity to comment on the proposed LDRs and strongly
supports EPA's decision with the Hazardous Waste Identification Rule scheduled to be
proposed in early 1995." (Conoco. Inc.. CS2P-00177)

'Conoco understand that EPA has elected to delay the soil portion of the proposed
rule and merge the soil LDRs with the Hazardous Waste Identification Rule
(HWIR) scheduled to be proposed next year. We strongly support this decision.

EPA plans to develop a regulatory scheme based on the HWIR strawman for
remediation on contaminated soil. It is logical and efficient that EPA consider the
overall regulatory scheme for contaminated media/remediation in determining to what
extent LDRs are appropriate.

Conoco believes that:

• Technology-based standards are overly restrictive and generally
inappropriate for remedial programs. Remedial alternatives must be site-
specific and risk-based and as such necessitate flexibility in decision-
making.

• The structure and rigidity of Subtitle C management standards and
permitting requirements are not intended nor suitable for remedial
actions.

• The wealth of information available on the fate and effect of petroleum
in the environment and the ability of State programs to adequately
address releases obviate the need for RCRA Subtitle C standards and
LDRs.

• Ultimately, to foster timely and economical remediation of contaminated
media and debris, remediation of these materials must be exempt from
RCRA Subtitle C LDRs as well as management standards and permitting
requirements." (Conoco. Inc., CS2P-00177)

"Chevron supports EPA's decision to address land disposal restrictions for hazardous
soils and the codification of the "contained in" policy as part of the Hazardous Waste
Identification Rule (HWIR) for contaminated media. We strongly endorse this
postponement, as we believe the solutions for dealing with contaminated media are very
different than those for process wastes." (Chevron. CS2P-00182)
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"DOW SUPPORTS DEFERRAL OF THE CONTAMINATED SOIL RULE TO THE
HWIR. RULEMAKING EFFORTS. Dow is actively involved in the HWIR process
and has been concerned that the proposed LDR rule for soils could interfere or conflict
with the ongoing HWIR dialogue. These two undertakings overlap, with the
contaminated HWIR reforms being much more comprehensive and fundamental.

The HWIR process, if concluded and implemented as intended and directed by
Congress, will remove many obstacles to effective, efficient remediation efforts and
will repair the badly mangled system for currently generated wastes, both desperately
needed reforms.

Dow supports addressing the issue of soil standards and the contained-in principle in
the context of the HWIR dialogues, where a more thorough and integrated reform can
be put in place. It is vital that the HWIR effort incorporate the issues involving
contaminated soil as well as other media and process wastes. HWIR presents the
greatest opportunity for meaningful comprehensive improvements including greater
flexibility, lowered barriers to effective remediation and management, and proper
oversight of activities." (DOW Chemical Company, CS2P-00184)

"Unocal wholeheartedly supports EPA in the decision to defer the promulgation of
treatment standards for hazardous soils to the Hazardous Waste Identification Rule
(HWIR) rulemaking. In our November 15, 1993, comments Unocal advocated not
only the coordination of the Phase n LDRs for contaminated soils with HWIR but also
the coordination of universal treatment standards (UTSs) for process wastes and
treatment residues with HWIR. The deferral provided in the Agency's March 8th
clarification is especially appropriate because the HWIR rulemaking and its ability to
address the comprehensive management of hazardous soils including treatment
standards is, by far, a more apt vehicle for contaminated soils treatments standards than
the Phase n LDR proposed rule which is confined to treatment standards before the soil
can be disposed of in a hazardous waste landfill." (UNOCAL, CS2P-00185)

"AISI agrees that issues related to the contained-in rule and the development of
alternative treatment standards for hazardous soils are better addressed in the
comprehensive HWIR rulemaking and its accompanying federal advisory committee
dialogue than in the context of the Phase n LDR proposal. The Contaminated Media
Subgroup of the federal advisory committee is engaged in ongoing discussions seeking
to develop among various stakeholders a consensus position on treatment standards for
soils currently classified as hazardous waste. Moreover, that Subgroup's discussions
regarding when contaminated media and debris should be classified as hazardous waste
will undoubtedly influence the remaining need for, and the appropriate parameters of.
any contained-in rule.

Accordingly, and in light of and in reliance on EPA's March 8, 1984 Federal Register
-------
notice. AISI is deferring the submission of comments on the proposed codification of
the contained-in principle for soil and media. As EPA is aware, AISI through the
participation of its outside counsel, is an industry member of the HWIR Contaminated
Media Subgroup. Accordingly. AISI will continue to provide the Agency with its
views on issues pertaining to contaminated media (including treatment standards for
hazardous soils and the circumstances in which contaminated media should, or should
not. be classified as hazardous waste) as part of the HWIR process." (AISI. CS2P-
L0002)

• 'DuPont support's EPA's intent to address the treatment of hazardous soil and the
contained-in policy in the context of the Hazardous Waste Identification Rule (HWIR)."
(DuPont. CS2P-L0003)

• "DuPont fully supports EPA's decision to address issues related to the treatment of
hazardous soil and the codification of the contained-in policy in the Hazardous Waste
Identification Rule (HWIR), rather than through the establishment of soil specific land
disposal restrictions (LDRs). HWIR provides a comprehensive framework for
addressing the management of contaminated soils and is the more appropriate vehicle
for addressing these issues. We look forward to working closely with ail of the
stakeholders to develop an HWIR approach that brings meaningful reform to RCRA's
regulation of contaminated media and remediation wastes" (DuPont. CS2P-L0003)

» "In closing, DuPont fully support EPA's intent to address the treatment of hazardous
soils in the context of HWIR, rather than as an LDR rulemaking. We also support the
codification of the contained-policy in the same context. We encourage EPA to do so
in a way that serves to bring real relief to the remediation process and the full range of
remediation wastes, that preserves the greatest amount of flexibility and that
encourages the use of innovative remedial technologies to the maximum extent
possible. We look forward to working constructively with all stakeholders to achieve
these import goals." (DuPont. CS2P-L0003)

Response: All of the comments in the preceding section supported deferral of a decision on
LDR treatment standards for contaminated soil to the Agency's Hazardous Waste Identification
Rule for Contaminated Media (HWIR-Media) rulemaking process. In consideration of these
comments, the Agency did defer a decision on soil treatment standards to the HWIR-Media
rulemaking and proposed modified soil treatment standards as part of the HWIR-Media
proposal. Comments responding to the soil treatment standards proposed in HWIR-Media are
addressed in the HWIR-Media response to comments document, included in the docket for
today's rulemaking.

5.B DEFINITIONS

5.B.1 Definition of Hazardous Soil (see Chapter 5)

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• "EPA must develop more precise terminology of hazardous soil. Although unintended; concentration
values promulgated to identify or evaluate wastes such as 40 CFR 268.48 Table UTS or 4U CFR
261.24 Table 1 (TCLP) are being utilized to evaluate in-situ environmental media. For example, in-
situ soils which have met any-use clean-up objectives for a specific sue are nevertheless being
excavated and disposed (usually incinerated) for exceeding TC levels. Many state regulators can not
accept a site condition whereby in-situ soil tests out as "hazardous' yet meets any-use clean-up
standard. The regulators persist in using the TC to determine whether to undertake CERCLA action
even after being alerted to the invalidity- of this approach in rule making (55 FR 11799: March 29.
1990. Section V.J. 1.) RCRA unit closures and corrective actions are similarly being hampered.
There is no doubt in my mind that the universal treatment standards as proposed will be utilized
inappropriately as cleanup standards.

Unless more creative terminology is formulated, the term "hazardous soil" must always be qualified
as "hazardous soil waste." (Fugro-McClelland (Midwest). Inc.. CS2P-0007).

Response: EPA continues to emphasize that the soil treatment standards are not. and should not be used as.
de facto cleanup levels. EPA has clanfied in today's final rules that the soil treatment standards apply only to
placement of contaminated soils that are subject to LDRs.

EPA is not. however, persuaded that a new term is needed to describe contaminated soil subject to the LDRs.
EPA believes, at this time, that the definition of soil, promulgated today, and the term, "hazardous soil" in
general use as soil that contains a listed hazardous waste or exhibits a characteristic of hazardous waste, are
sufficient.

• "HWAC has several other comments regarding various aspects of the EPA's proposal on managing
hazardous soils. First. HWAC supports EPA's proposed definition of hazardous soil, which
provides that ;"[s]oil is unconsolidated earth material composing the superficial geologic strata
(material overlying bedrock), consisting of clay. silt. sand, or gravel size particles (sizes as classified
by the U.S. Soil Conservation Service), or a mixture of such materials with liquids, sludges, or solids
which is inseparable by simple mechanical removal processes and is made up primarily of soil." 58
Fed. Reg. at 48.123. HWAC strongly urges EPA to adopt a definition of soil that allows for the use
of simple screening or other relatively cost-effective techniques to determine whether certain
materials are 'soils"'" (HWAC. CS2P-00020)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
taking action to promulgate the definition of "hazardous soil.'' the definition of "soil" discussed in the 1993
LDR Phase 2 proposal and proposed in the 1996 HWTR-Media proposal is being promulgated, as proposed.
today.

The definition of soil promulgated today, like the definition of "hazardous soil" proposed in 1993. relies on
simple physical separation processes to remove non-soil from soil.

• "Proposed rule 268.47(a) is confusing in the sense that it states that the universal treatment standards
are applicable to RCRA hazardous soil "before the soil is land disposed." This wording raises the
issue of how these standards apply "before" disposal occurs. A more appropriate statement would
be that hazardous soil may not be land disposed until the treatment standards are achieved or the
hazardous soil is excluded as provided in proposed rule 40 CFR 261.4(a)(13). (Boeing. CS2P-
-------
00029)

Response: EPA has revised the final regulations to retlect this clarification.

• "The proposed revision to 40 CFR 261.3(g) fails to provide for exclusion of
contaminated soil and other media which no longer exhibit a characteristic.
Characteristic wastes are subject to 40 CFR 261.3(a)(2)(iii). which provides that a
waste which no longer exhibits a characteristic is not regulated except for being subject
to the requirements of Part 268. A similar provision should cover environmental media
which no longer exhibit a characteristic. Otherwise, storage and treatment permitting
requirements may apply and severely restrict the ability of the regulated community to
utilize innovative treatment technologies. Further, this latter point is necessary to be
consistent with EPA's stated "contained-in" policy. As set forth in 57 Federal Register
986, third column (1/9/92), contaminated media is required to be managed as if it were
hazardous waste until it no longer "contains" listed waste, not longer exhibits a
characteristic, or is delisted. Thus, the agency's position has been that if media
contaminated with a hazardous waste no longer exhibits a characteristic, it does not
have to be managed as hazardous. This portion of the policy should be carried forward
into codification." (Boeing, CS2P-00029)]

Response: For reasons discussed in detail in the preamble to today's final rule. EPA is not. at this time.
taking action to codify the so called, "contained-in" policy. Although the .policy is not codified. EPA regions
and authorized states may continue to implement the policy, as appropriate, on a site-by-site basis. EPA
notes that, under current Agency guidance on implementation of the contained-in policy, it is appropriate to
determine that soil which no longer exhibits a characteristic of hazardous waste does not. therefore, contain
hazardous waste. Furthermore, if the only means that the soils could be hazardous is if the soil exhibits a
characteristic and it does not. then the soil is not subject to subtitle C regulation, with the possible exception
of the Part 268 LDR rules. Thus, the same principles would apply as apply to other characteristic and
decharactensted wastes.

• "We support the proposed "pragmatic approach for classifying mixtures of soil and other materials"
(see 55 FR 48 123). This approach minimizes the handling necessary to manage hazardous soil and
other media on-site. Any other approach, such as requiring screening, would be of little benefit and
would increase the chances of releases of hazardous constituents to the environment." (Boeing.
CS2P-00029)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
taking action to promulgate the definition of "hazardous soil." the definition of "soil" discussed in the 1993
LDR Phase 2 proposal and proposed in the 1996 HWIR-Media proposal is being promulgated, as proposed.
today.

• "VII. Treatment Standards for Hazardous Soils

• Definition of Soil and Media

The HWTC does not agree with EPA's definition of soil, and proposes the following change:

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"Soil is unconsolidated earth material composing the superficial geologic strata (material
overlying bedrock), consisting of clay, silt, sand, or gravel size particles (sizes as
classified by the U.S. Soil Conservation Service), or a mixture of such materials with
liquids, sludges, or solids which is indistinguishable and inseparable by simple physical or
chemical means, and is made up primarily of soil."

In addition. EPA must require some form of determination and documentation that the above
definition is satisfied, particularly with regard to the "primarily" component of the definition.

The HWTC's objection to the definitional criteria for inseparability being "simple mechanical
removal processes" is that the measure for this criteria can consist of a back hoe shovel. Such
construction equipment is not capable of providing a distinct separation of excavated containers or
sludge from soil. With such a crude yardstick for defining soil, EPA will be promoting further
soil contamination by encouraging reckless operation of the back hoe to mix up soil with wastes
that is truly non-soil and treatable using process waste BOAT criteria. The mere structure of
EPA's proposed definition is an invitation to sue simple mechanical processes to do a poor
separation of the soil from the underlying wastes. EPA can come up with a better resolution test
than a back hoe.

The definition proposed by the HWTC is still easily implemented in the field, and is also consistent
with the definition which EPA used in the debris land disposal restrictions rule. The debris rule
defined the type of equipment that could be used to determine separability (see Footnote in Table
268.45 Table 1). These same physical separation devices are frequently used in the field to aid in
remediation, and provide a better resolution of soil from other wastes than a back hoe. The same
definitional criteria used for debris is justified for soil.

In addition, the definition and criteria for soil must not include free liquid, and a free liquid test
must be performed and documented to support the claim that the material is soil. Again, EPA
should use the same criteria promulgated and accepted for the definition of contaminated debris.
The results of the free liquid test must be documented to support the conclusions reached.

In addition, the government party providing oversight must be required to maintain documentation
any determinations that a mixture of soil and other materials was properly classified as soil. EPA
must not allow any determinations that are not documented and recorded for later inspection."
(Hazardous Waste Treatment Council, CS2P-00060)

Response: EPA continues to believe that decisions about whether any given volume of material is "soil."
"debris,'' or "waste" should be made by judging the results of simple in-situ mechanical removal processes
such as pumping, dredging, or excavation by backhoe. As discussed in the April 29, 1996 and September
14. 1993 proposals, attempting to distinguish more precisely between waste, soil or debris using chemical
analysis or other tests would be prohibitively difficult to develop and support and cumbersome to administer.
The Agency adopted a similar system for classification of hazardous debris in 1992 and is not aware of
undue implementation difficulties or willful mis-identification of debris by remedial project managers.

In fact, the test under the debris rule requires only a visual inspection (see 268.2 (g)), and so is actually
slightly more lenient. (The commenter is mistaken in its reference to a requirement of separation by certain
technologies mentioned in n.9 of Table 1 to 268.45. This note indicates that certain means of removal of
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debris contamination must be undertaken as part of the debris treatment process. It does not define what ,
debns is.) Furthermore. EPA does not accept the commenter's point that the definition creates incentives to
mix soil with other wastes to try and create a more lenient treatment requirement. Among other things, as the
Agency indicated with respect to debris as well, deliberate mixing is impermissible dilution (since it would be
a substitute for adequate treatment) and the mixture would remain subiect to the strictest standard for the
waste pan of the mixture pursuant to 268.40 ici. The dilution prohibition is found at 268.3. the preamble
discussion on the analogous issue in the debns rule is at 57 FR at 37224/3.

In addition, the Agency proposed the same definition, as a definition of "soil." in the April 29. 1996 proposal
and did not receive this type of adverse comment. Thus, it is not clear that the issue is preserved. The
Agency's substantive response to these issues should not be read as conceding that the issue is
preserved for purposes of review.

• "The rule proposes that all soils containing listed wastes or soils exhibiting a hazardous
characteristic would be subject to LTSs. Considering the fact that the proposed definition of
hazardous soil could conceivably include soils exhibiting a characteristic as a result of naturally
occurring materials in the soil, the definition is ambiguous. The Agency should account for and
make allowances for naturally occurring background levels of naturally occurring constituents in soil.
EPA should clearly state that the rule does not affect soils contaminated by wastes for which LDRs
have not been established prior to the effective date of the proposed rule.

With regards to constituents in characteristic waste. AWPI urges EPA to consider using the same
logic followed in promulgating the land disposal restrictions for hazardous debns. 57 FR 37194 and
37236. In developing those regulations. EPA acknowledged that almost no debris could be ignitable
since ignitable wastes must be a liquid. EPA further acknowledged that debns could not be corrosive
since only liquids can be corrosive. The same logic applies to soil. Further, it is very unlikely that
soil could ever be reactive. In regards to soils exhibiting the toxicity characteristic. EPA should
focus on constituents in the soil at levels exceeding the TCLP after accounting and making
adjustments for naturally occurring background levels as discussed above." (AWPI. CS2P-00047)

Response: Regarding naturally occumng background constituents, the Agency has clarified that treatment to
comply with the soil treatment standards will not be required if constituent concentrations fall below naturally
occumng background concentrations, provided the soil will continue to be managed on site or in an area with
similar natural background concentrations. If soil will be sent for land disposal off-site, compliance with the
alternative soil treatment standards is required, since the Agency believes that natural background
concentrations on-site will not automatically correspond to natural background concentrations at a remote
land disposal facility. The issue of which hazardous constituents in TC soils must be treated is discussed in
other responses and in the preamble to the final rule..

Regarding the ignitible and reactive characteristics, the Agency agrees the soil will seldom, if
ever, exhibit these characteristics; however, if it should occur, the Agency continues to believe
that elimination of the ignitible or reactive characteristic should be required as part of LDR
treatment.

» "The proposed definition for soil will pose severe implementation problems and cause
cost increases when applied to remediation sites. On page 58 FR 48123 of the

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preamble, the U.S. EPA proposes to define the term "soil" so that it would only include
those 'liquids, sludges, or solids which are inseparable by simple mechanical removal
processes"." (ASTSWMO. CS2P-00091)

Response: EPA does not believe that the definition of soil will pose severe implementation
problems. The Agency adopted a similar approach in the definition of "debris" and is not
aware of implementation difficulties. (See response to ETC comment above.) In addition, the
Agency proposed the same definition, as a definition of "soil," in the April 29, 1996 proposal and
did not receive this type of adverse comment. Thus, it is not clear that the issue is preserved. The
Agency's substantive response to these issues should not be read as conceding that the issue is
preserved for purposes of review.

• 'Definition of "Hazardous Soil" (page 48123): GM agrees with the proposed
definition of "hazardous soil" (i.e., contains listed hazardous waste(s) or exhibits one or
more hazardous characteristics). We further agree that the term "hazardous soil" is far
more definitive than the previous term ' contaminated soil"." (General Motors. CS2P-
00095)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
taking action to promulgate the definition of''hazardous soil." the definition of "soil"' discussed in the 1993
LDR Phase 2 proposal and proposed in the 1996 HWIR-Media proposal is being promulgated, as proposed.
today.

• "Definition of Hazardous Soil

For the first time, USEPA proposes to codify its contained-in policy and in so doing
includes a proposed definition of hazardous soil as well as proposed treatment standards
for such hazardous soil. In subpart 268 (the LDR regulations), hazardous soil is
defined as "soil that contains RCRA hazardous wastes listed in 40 CFR part 261.
subpart D, or that exhibits one or more of the characteristics of hazardous waste as
defined in 40 CFR part 261, subpart C." Proposed 40 CFR 268.2. USEPA then
proposes treatment standards for "hazardous soil", 40 CFR 268.47. We conclude from
these two provisions that soil which does not contain a listed hazardous waste and does
not exhibit a characteristic has no land disposal restriction. Thus, for example, soil
contaminated with a spill of material from an in-process pipe (which material in the
pipe theoretically could originally meet the ignitability characteristic if discarded) is not
subject to land disposal restrictions if the soil, that has received the spill, itself is not
characteristically hazardous, regardless of any point of generation issues regarding the
spilled process material.

Hoechst Celanese agrees with this approach since soils that do not meet the hazardous
waste characteristics should not be subject to LDRs. However, we also believe that
this definition should not be limited to the LDR section of the regulations. By defining

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this material as "hazardous soil" as opposed to "restricted soil", we believe the Agency
intended to define when soils will be considered hazardous wastes. Therefore we
believe the definition of hazardous soils should be moved to part 261 (the definition of
hazardous wastes) to clarify that such soils not only have no LDRs but in fact are not
hazardous wastes, even though they may contain in-process material that might have
met a hazardous waste characteristic. Such a result is clearly anticipated by the
proposed rule for "contained-in determinations" which provides a mechanism whereby
environmental media that is contaminated with listed wastes or is characteristically
hazardous will be declared no longer subject to the hazardous waste regulations. See
proposed 40 CFR 261.3(g). This provision provides no determination mechanism for
soils (and other environmental media) that do not meet the hazardous waste
characteristics but that have been contaminated with previously characteristic material.
This makes sense since such soils have no LDRs. as discussed above, and should not be
considered hazardous wastes.

Moreover, we believe the same interpretation should apply to listed hazardous wastes
that are listed for ignitability, or corrosivity only. Such materials, when spilled on soil.
should not be hazardous wastes nor should they be land disposal restricted as long as
the soil does not exhibit the hazardous waste characteristic. The listed ignitable (or
corrosive or reactive) constituents other than the constituent that lead to the listing for
ignitability or corrosivity or reactivity since in order to be a listed waste it must be a
commercial chemical product with the listed chemical as its sole active ingredient.
Therefore, once the listing characteristic is lost when the listed material spilled to the
soil, the soil should be excluded from the hazardous waste regulations and from the
LDRs.

Therefore, we suggest that the definition for hazardous soil be moved to Part 261 and
that the definition clearly exclude soil that has received in process wastes or wastes that
are listed solely for ignitability, corrosivity or reactivity, but which does not exhibit
any hazardous waste characteristic." (Hoechst Celanese Corp., CS2P-00123)

Response: EPA is not, at this time, taking action to promulgate a definition of "hazardous
soil." EPA is promulgating a definition of "soil," consistent with the definition of soil
discussed in the LDR Phase 2 proposal. Consistent with this commenter's recommendation.
EPA will promulgate the definition of "soil" in 40 CFR 261.

EPA notes that the term "hazardous soil" continues to mean soil that contains a listed hazardous
waste or exhibits a characteristic of hazardous waste. The Agency is not. at this time, taking
action to codify the so called "contained-in" policy, however, the policy continues to apply to
determinations of whether any given environmental media contains hazardous waste and
therefore requirements management under RCRA Subtitle C. The so called "contained-in"
policy is discussed in detail in the preamble to today's final rule. Under EPA's current
guidance on implementation of the contained-in policy, for soil contaminated by spills of

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characteristic hazardous waste, it is appropriate to determine that soil does not contain
hazardous waste when the soil does not exhibit a characteristic of hazardous waste. EPA
believes this determination would also be appropriate for soil contaminated by hazardous
wastes listed Soly because they exhibit a characteristic of ignitability, corrosivity or reactivity.

• "EPA proposes to define "hazardous soil" as soil that contains a listed waste or that
exhibits a characteristic of hazardous waste (268.2(f). This is consistent with the
approach previously promulgated for debris and is appropriate and practical.

However, proposed 268.39(a) prohibits "soils that are contaminated with D012-D017
...". The language should properly read "soils that exhibit D012 - D017 ...".

Similarly, proposed 268.39(b) prohibits debris that are contaminated with D018-D043.
It should read "debris that exhibit DO 18-1043 ...".

This subtlety has a significant impact on remediation.

Example: At one Union Carbide location, three construction projects during the
last year generated soil which did not exhibit the Toxicity Characteristic and
were not subject to land disposal restrictions. These were routine construction
projects which generate soil from foundation and utility excavations. However
the materials spilled on the soil, decades ago, would have exhibited the toxicity
characteristic before they were spilled. The approach taken is proposed
268.39(a) would appear to apply the TC land disposal restrictions to the soil.
The total soil involved was 53 cubic yards at this location.

As a general rule, we would expect on the order of 100 yards of soil generated from
routine construction projects at Union Carbide locations to be in this category; namely.
the soil does not exhibit the toxicity characteristic, but contains constituents from
products or wastes which exhibited the Toxicity Characteristic at the time they were
spilled. And even greater amounts (as yet undetermined) are expected to be generated
by remediation activities.

We note that the dilution prohibition at 268.3 prevents the mixing of restricted waste
with soil to circumvent land ban treatment. Thus, one could not mix prohibited TC
waste with soil to circumvent the land ban treatment of the TC waste." (Union Carbide
Corporation, CS2P-00142)

EPA notes that the term "hazardous soil" when used by the Agency continues to mean soil that

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contains a listed hazardous waste or exhibits a characteristic of hazardous waste. The so called
"contained-in" policy is discussed in detail in the preamble to today's final rule. Also
discussed in detail in the preamble is the application of LDRs to contaminated soil. In the case
of the contamination discussed in the commenter's example above, provided the soil was
contaminated prior to the effective date of any applicable LDRs. the soil would only be subject
to LDRs if it was determined, at its point of generation, to contain listed hazardous waste or
exhibit a characteristic of hazardous waste. Under EPA's current guidance on implementation
of the contained-in policy, for soil contaminated by spills of characteristic hazardous waste, it
is appropriate to determine that soil does not contain hazardous waste when the soil does not
exhibit a characteristic of hazardous waste.

• "On page 48123, EPA has proposed to define soil as the unconsolidated earth material composing
the superficial geologic strata, or a mixture of such materials with liquids, sludges, or solids which
are inseparable by simple mechanical removal processes and are made up primarily of soil. EPA
has stated that this proposed definition would allow site managers to determine whether the
material to be excavated is waste, debris, or soil by judging the results of simple in-situ
mechanical removal processes to separate the materials. Such processes include pumping.
dredging, or excavation by backhoe. forklifts. or other devices.

A commenter from the TNRCC closure team is concerned that an on-site coordinator may have an
economic incentive to classify as much material as possible as being hazardous soil rather than
waste, so that the treatment can be done to (less expensive) higher concentration levels. The
commenter recommends that EPA should require documentation and certification of the small-
scale analytical and field methods used for separation of waste and soil." (Texas Natural Resource
Conservation Commission, CS2P-00145)

Response: EPA continues to believe that decisions about whether any given volume of material is "soil."
"debris," or "waste" should be made by judging the results of simple in-situ mechanical removal processes
such as pumping, dredging, or excavation by hackhoe. As discussed in the April 29. 1996 and September
14. 1993 proposals, attempting to distinguish more precisely between waste, sail or debris using chemical
analysis or other tests would be prohibitively difficult to develop and support and cumbersome to administer.
The Agency adopted a similar system for classification of hazardous dcbns in 1992 (actually requiring only
visual inspection) and is not aware of undue implementation difficulties or willful mis-identification of debris
by remedial project managers.

The Agency notes that it proposed the same definition of soil in the 1996 HWIR-Media proposal and did not
receive this type of adverse comment. In fact, in their comments on the 1996 proposal, states generally.
including the state of Texas, strongly recommended that EPA categorically exempt any remediation waste.
including contaminated soil, from all RCRA Subtitle C hazardous waste management requirements, if the
waste was managed as part of a state overseen remedial action.

• "EPA must clarify' the definition of hazardous soil and its contamed-m policy to ensure that soils not
containing Subtitle C waste (including soils with naturally occurring metals and soils that are Bevill
wastes or contain Bevill wastes) are in no case deemed hazardous waste." (ASARCO. CS2P-00166)

Response: EPA is not. at this time, taking action to finalize either the definition of "hazardous soil" or the so

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called "contamed-in" policy. The preamble to today's final rule has a detailed discussion of when LDRs
apply to contaminated soil and of the contained-in policy, which, at this time, the Agency believes will
provide adequate guidance for program implementation.

Regarding soil contaminated with Bevill waste, however, since the Bevill wastes themselves are not subject
to subtitle C regulation they also are not subject to LDR requirements. See Horsehead Development
Resource Co. V. EPA in 16 F.3d which held that even if prohibited wastes are combined with Bevill wastes in
a way that allows the wastes to retain Bevill status. LDR requirements do not apply.

Regarding naturally occurring metals, the Agency has clarified that treatment to comply with the soil
treatment standards will not be required if constituent concentrations fall below naturally occurring
background concentrations, provided the soil will continue to be managed on site or in an area with similar
natural background concentrations. If soil will be sent for land disposal off-site, compliance with the
alternative soil treatment standards is required, since the Agency believes that natural background
concentrations on-site will not automatically correspond to natural background concentrations at a remote
land disposal facility.
"DEFINITION OF HAZARDOUS SOIL

EPA proposes to define as "unconsolidated earth material composing the superficial geologic strata
(material overlying bedrock), consisting of clay. silt. sand, or gravel size particles... or a mixture of
such materials with liquids, sludges, or solids which is inseparable by simple mechanical removal
processes and is made up primarily of soil." In its September 14. 1993 proposal. EPA defines
hazardous soil as soil that contains or is mixed with a listed RCRA hazardous waste or that exhibits
a hazardous waste characteristic. Under this proposal, the Regional Administrator could make
a"contained-in" determination that soil or other hazardous media are no longer contaminated with
hazardous waste.

The definition of hazardous soil and the contained-in policy are critical because EPA's decision on
these matters will determine what materials enter the RCRA hazardous waste system in the first
place. In formulating the hazardous soil definition and contained-in policy. EPA needs to consider
issues specific to mining and mineral processing wastes. Asarco supports AMC's detailed comments
(filed today under separate cover) on the definition of hazardous soil. Several key concerns are
discussed briefly hereinafter.

A. Naturally Occurring Soils

Soils at mining and mineral processing facilities (and at other sites as well) often contain naturally
high level of metals. Under EPA's September 14. 1993 proposal, any naturally occurring soil that
happened to fail the TCLP test could potentially be considered hazardous waste by EPA. even if no
contamination had ever occurred. EPA's definition of hazardous soil is overly broad and conceivably
could be interpreted to include earthen materials that may contain naturally occurring or
"•background" levels of metals. EPA should state in its definitions that earthen materials not
contaminated with hazardous waste will in no case be considered hazardous waste.

One subset of naturally occumne earthen materials is ones and minerals that are raw materials for
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extraction, beneficiation. and processing. hPA should state that these materials will in no case be
considered hazardous waste because, in addition to being uncontammated by any waste, they are raw
materials - not wastes.

B. Soils That Contain Bevill Wastes

Within the overall principle that earthen material not contaminated with hazardous waste should not
be considered hazardous waste. EPA should clarify that soils containing Bevill wastes are in no case
considered hazardous wastes, because the Bevill wastes themselves are not regulated under RCRA
Subtitle C. EPA has determined that Beviil wastes from mining and mineral processing do not
warrant Subtitle C regulation (51 FR 24496. July 3. 1986 and 56 FR 27300. June 13. 1991).
Therefore, earthen material containing or mixed with Bevill wastes should not be regulated under
Subtitle C.

C. Soils That Contain "De-Bevilled" Wastes

EPA has not yet proposed LDRs for newly identified "de-Bevilled" mineral processing wastes.
Therefore. EPA should not yet impose LDRs on soils containing these wastes. The newly identified
mineral processing wastes comprise those wastes excluded by EPA from Bevill Amendment
coverage. In September 1989. EPA determined that certain mineral processing wastes removed from
the scope of the Bevill Amendment, if hazardous, are "newly identified for the purpose of [the LDR
program]." As EPA pointed out in the LDR Third final rule, newly identified mineral processing
wastes should not be subject to treatment standards until there is adequate technical information
developed to support an appropriate treatment standard. EPA noted that "the mineral processing
wastes are sufficiently different from other characteristic wastes to warrant additional analysis."

EPA must, through independent analysis of the characteristic of the mineral processing wastes.
develop separate standards for newly identified mineral processing wastes in the "Phase IV" rule in
1996. EPA must not apply LDRs to soils containing mineral processing wastes before it has
determined LDRs for mineral processing wastes themselves.

D. Use of the To.xicity Characteristic Leaching Procedure for Mining and Mineral Processing
Wastes

The D.C. Circuit has remanded the Toxicity Characteristic Leaching Procedure (TCLP) with respect
to non-Bevill mining and mineral processing wastes because the Agency has not justified adequately
the application of that procedure to mining and mineral processing wastes. (See Edison Electric
Institute v. EPA, Cir. No. 89-1320. D.C. Circuit. August 6. 1993.) The court's decision in Edison
calls into question the applicability of Subtitle C requirements for soils containing mining and
mineral processing wastes when the soils fail the TCLP. Furthermore, the decision raises questions
regarding whether LDRs that depend on the TCLP could be applied to mining and mineral
processing wastes. EPA must address these specific issues and consider the court's opinion in
Edison in any decisions related to the definition of hazardous soil and/or applicability of LDR
treatment standards to mineral processing wastes and soils containing mineral processing wastes."
(ASARCO. CS2P-00166)

Response: EPA is not. at this time, going forward with the portions of the LDR Phase 2 or HWIR-Media
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proposals which would have codified the so called "contained-in" policy. EPA is also not. at this time.
promulgating a definition of "hazardous soil."

The "contained-in" policy is discussed in detail in the preamble to today's final rule. Under current
Agency guidance on implementation of the contained-in policy, soil determined to contain so called ''de-
Bevilled" waste would be subject to regulation under RCRA Subtitle C. Soil contaminated by exempt
Bevill wastes would, of course, also be exempt. Furthermore. EPA believes that it may be appropriate to
determine that soil containing hazardous constituents at or below natural background concentrations should
properly does not contain any solid or hazardous waste, and thus would not be subject to regulation as
waste under RCRA. EPA notes that natural background concentrations are concentrations present in areas
that have not be affected by releases or other human activities.

Regarding application of the TCLP to mining and mineral processing wastes, the Agency has determined
to do so for reasons set out in the preamble to the final rule and in other responses to comment. Finally,
the commenter's point regarding applicability of LDRs to deBevilled wastes is answered by the other parts
of the Phase 4 rule which do prohibit such wastes from land disposal, and which apply as well to media
contaminated with such wastes.

• "The LDEQ agrees with the proposed definition of soil. It will simplify' the process of determining
whether the material is a soil, waste, or debris. This definition will also speed up the remediation of a
contaminated site. A mechanism will be needed to certify that the material is a soil. This can either
be a certification from onsite personnel or from a visual inspection by an independent laboratory'. A
certification from an independent laboratory would be preferred.'' (Louisiana DEQ. CS2P-00167)

Response: EPA appreciates this support of the definition of soil. The definition discussed in the 1993 LDR
Phase 2 proposal was re-proposed in the 1996 HWIR-Media proposal and is being promulgated today.

The Agency does not. at this time, agree that certification of whether or not a material is soil should be
required. The Agency believes this would present an administrative burden not warranted by the
determination at hand. Agency overseers, experts, and field personnel routinely make decisions about
whether any given material is "waste." ''soil." or "debris." The Agency- adopted a similar system for
classification of hazardous debris in 1992 and is not aware of undue implementation difficulties or willful
mis-identification of debris by remedial project managers.

• "Hazardous Soil: API prefers the use of the term 'remediation waste.' as defined in the corrective
action management unit (CAMU) rule (58 FR 8683) as opposed to the proposed term 'hazardous
soil.' The term "remediation waste' more accurately recognizes the mixture of materials likely to be
encountered in a remedial setting, and acknowledges the often blurred distinction between wastes and
contaminated soils. However, if EPA chooses to use the term "hazardous soil.' API believes that the
phrase "...or a mixture of such materials with liquids, sludges or solids which is inseparable by
simple mechanical removal processes and is made up of primarily of soil...1 is particularly critical to
the definition. This phrase recognizes: (1) the practical difficulty- of separating waste-like material
form the soil matrix, and (2) that expensive and time-consuming chemical or physical/chemical
methods of separating waste from soils should not be required before the materials can be managed
as a "hazardous soil."" (API. CS2P-00169)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
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taking action to promulgate the definition of "hazardous soil." the definition of "soil" discussed in the 19C)3
LDR Phase 2 proposal and proposed in the 1996 HWIR-Media proposal is being promulgated, as proposed.
today EPA notes that contaminated soil remains a component of the more-encompassing definition of
"remediation waste."

• "Before EPA turns its attention to LDR treatment standards for sons at mineral processing facilities.
the agency must first narrow its over-inclusive definition of ""hazardous soil." Two major
components must be addressed. First, the proposed definition must be modified so that it does not
include naturally-occurring soils at mineral processing facilities. Second, the proposed definition
must be amended so that it does not cover soil contaminated with Bevill wastes. As it now stands.
the proposed definition will simply prove unworkable, at best. The enclosed comments set forth the
underlying rationale for the needed modifications." (American Mining Congress. CS2P-00173)

Response: EPA is not. at this time, taking action to finalize either the definition of "hazardous soil" or the so
called "contained-in" policy. The preamble to today's final rule has a detailed discussion of when LDRs
applv to contaminated soil and of the contained-in policy, which, at this time, the Agency believes will
provide adequate guidance for program implementation.

The "contained-in" policy is discussed in detail in the preamble to today's final rule. Under current Agency
guidance on implementation of the contained-in policy, soil determined to contain so called "de-Bevilled"
waste would be subject to regulation under RCRA Subtitle C. Soil contaminated by exempt Bevill wastes
would, of course, also be exempt. Furthermore. EPA believes that it may be appropriate to determine that
soil containing hazardous constituents at or below natural background concentrations should properly does
not contain any solid or hazardous waste, and thus would not be subject to regulation as waste under RCRA.
EPA notes that natural background concentrations are concentrations present in areas that have not be
affected by releases or other human activities.

• "EPA must modify its proposed definition of hazardous soil that it does not encompass any of the
following materials: (1) soil that exhibits a characteristic solely because it contains high
"background" concentrations of metals or other hazardous constituents (i.e.. "uncontammated" soil):
(2) uncontaminated "soil" used as raw material in mining and mineral processing operations: (3)
soils that are Bevill wastes: (4) soil contaminated solely with Bevill wastes; (5) soil contaminated
with both Bevill wastes and non-Bevill mineral processing wastes: and (6) soil containing
insignificant amounts of non-Bevill mineral processing wastes." (American Mining Congress.
CS2P-00173)

Response: EPA is not. at this time, taking action to finalize either the definition of "hazardous soil" or the so
called "contained-in" policy. The preamble to today's final rule has a detailed discussion of when LDRs
apply to contaminated soil and of the contained-in policy, which, at this time, the Agency believes will
provide adequate guidance for program implementation.

The "contained-in"' policy is discussed in detail in the preamble to today's final rule. Under current Agency
guidance on implementation of the contained-in policy, soil determined to contain so called "de-Bevilled"
waste would be subject to regulation under RCRA Subtitle C (this would include soil contaminated by both
"de-Bevilled" and Bevill wastes: otherwise. Bevill wastes would be used to immunize non-Bevill wastes from
subtitle C requirements, a result EPA believes contrary to both law and policy). Soil contaminated solely by
exempt Bevill wastes would, of course, also be exempt. Furthermore. EPA believes that it may be
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appropriate to determine that soil containing hazardous constituents at or below natural background
concentrations should properly does not contain any solid or hazardous waste, and thus would not be subject
to regulation as waste under RCRA. EPA notes that natural background concentrations are concentrations
present in areas that have not be affected by releases or other human activities

• "III. BEFORE EPA IMPOSES LDR TREATMENT STANDARDS ON SOILS AT MINING
AND MINERAL PROCESSING FACILITIES. IT MUST FIRST MODIFY ITS OVER-
INCLUSIVE DEFINITION OF "HAZARDOUS SOIL"

EPA proposes to establish a definition of "soil" for purposes of the LDR program that would
encompass "unconsolidated earth material composing the superficial geologic strata . . . consisting of
clay. silt. sand, or gravel size paniculate .... or a mixture of such materials with liquids, sludges, or
solids which is inseparable by simple mechanical removal processes and is made up primarily of
soil." 58 Fed. Reg. At 48.123. EPA's proposed definition of "hazardous soil" could presumably
include certain soils at mining and mineral processing facilities that are not properly subject to
regulation as hazardous wastes under the Resource Conservation and Recovery Act ("RCRA").

The potential over broad application of the proposed definition of hazardous soil to materials at
mining and mineral processing facilities raises serious problems. In particular. AMC is concerned
that the proposal could be interpreted unlawfully to encompass soils that exhibit a characteristic
solely because they are naturally high in metals concentration, as well as soil that contains Bevill
wastes only. AMC is also concerned about the potential regulation of soil contaminated by such
small amounts of non-Bevill mineral processing wastes as to not be significantly affected by such
waste, and the consequences of regulating soil that contains non-Bevill mineral processing wastes
before those wastes themselves are regulated under the LDR program.

In order to avoid these untoward results. EPA must recognize explicitly in the final rule that it cannot
at any time regulate under the LDR program: (1) soil that exhibits a characteristic solely because it
contains high "background" concentrations of metals or other hazardous constituents (i.e..
"uncontaminated" soil); (2) uncontaminated "soil" used as raw material in mining and mineral
processing operations: (3) soils that are Bevill wastes: (4) soil contaminated solely with Bevill
wastes: (5) soil contaminated solely with Bevill wastes and non-Bevill mineral processing wastes:
and (6) soil containing insignificant amounts on non-Bevill mineral processing wastes.

A. The Proposed Definition of Hazardous Soil Must Be Modified so that It Does Not Cover
Soils that Contain Naturally High Concentrations of Metals or Other Hazardous
Constituents

One of AMC's chief concerns regarding the proposed definition of hazardous soil is that it might be
interpreted to encompass uncontaminated soil that contains naturally high concentrations of metals or
other hazardous constituents. For example, the proposed definitions might be interpreted by some to
cover the ores and minerals that are the raw materials for extraction, beneficiation, and processing
operations: overburden and other wastes from the extraction of ores and minerals: and earthen
materials that are excavated and/or moved for purposes of construction or restoration of mining sites.
As discussed below. EPA lacks authority to regulate any of these materials under the LDR program.

1. Even if "Hazardous." Uncontaminated Soils Cannot Be Regulated Under Subtitle C
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Because They Are Not "Solid Wastes"
The proposed definition of "hazardous soil" could unlawfully sweep into the hazardous waste
regulatory system certain soils that are not contaminated and therefore are not properly \\uhm the
jurisdiction of Subtitle C. The term "contaminate" means to render unfit for use by the introduction
of unwholesome or undesirable elements." Webster's Third New International Dictionary ( 198 1). p.
491. It is beyond question that soils at mining and mineral processing facilities frequently contain
high concentrations of metallic constituents, not because of the "introduction" of foreign matter into
such soils, but because the soils contain naturally high concentrations of metals.

Moreover, to the extent that soils may be used as raw material for mining and mineral processing
operations, the metallic constituents in such soils are not "undesirable elements." Instead of
rendering the soil :'unfit for use." the metallic constituents actually enhance the usefulness of soils in
the metals production process. Clearly, the mere fact that soil located at a mining or mineral
processing facility exhibits a characteristic of hazardous waste does not mean that the soil is
"contaminated."

To the extent that soil is not contaminated, it is beyond the scope of Subtitle C jurisdiction It is
well-established that soil is not a solid waste. See, e.g.. Chemical Waste Management v EPA. X69
F 2d 1526. 1538 n.14 (D.C. Cir. 1989). Subtitle C is unquestionably limited to the regulation of
solid wastes. American Mining Congress v. EPA. 824 F.2d 1177. 1179 (D.C. Cir. 1987). Thus, if
soil naturally exhibits a characteristic of hazardous waste, it cannot be regulated under any aspect of
Subtitle C. including the LDR program.

2. Certain Soils at Integrated Mining and Mineral Processing Operations are Raw
Materials and Thus Outside the Scope of EPA's Subtitle C Jurisdiction

The regulation of uncontaminated soils is particularly inappropriate at "integrated" mining and
mineral processing facilities.1 "Earth material." which is included in the proposed definition of soil.
may encompass the ores and minerals which are used by integrated facilities as raw materials in the
production of metals and other valuable commodities. When used in this manner, "soils" clearly are
not "discarded" and therefore cannot be considered solid or hazardous wastes subject to Subtitle C
jurisdiction.

Moreover, any attempt to regulate these raw materials under Subtitle C would run afoul of clear
congressional intent that RCRA not be used to interfere with the production decisions of industrial
facilities. See S. Rep. No. 988. 94* Cong., 2d Sess. 26. reprinted in 1976 U.S. Code Cong. &
Admin. News 6238. 6264 (RCRA "does not establish any federal regulatory authority with respect to
decisions in the manufacturing process."); S. Rep. No. 284. 98th Cong., 1st Sess. 6 (1983) ("the
[1984] amendments do not authorize the EPA ... to intrude into the production-process or
production decisions of individual generators."). Thus. EPA lacks authority1 to regulate under the
LDR program uncontaminated "soils" that serve as raw materials for mining and mineral processing
operations.

3. Certain Naturalrv-Charactenstic Soils are Bevill Wastes that are Excluded from
As used throughout these comments, the term "integrated" facility refers to facilities at which mineral
processing operations are co-located with mining (i.e.. extraction and beneficiationi operations.

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Regulation Under Subtitle C

The regulation of naturally-characteristic "earthen material" at mining and mineral processing
facilities would also violate the express language of the Bevill Amendment, which excludes solid
wastes from the extraction, beneficiation. and processing of ores and minerals from regulation under
Subtitle C. including the Subtitle C LDR program. 42 U.S.C. § 6921 (b)(3)(A)(ii). Certain metal-
containing materials, such as overburden and waste rock from ore and mineral extraction operations.
are clearly covered by the Bevill Amendment, and have been determined by EPA not to warrant
regulation as hazardous wastes under RCRA Subtitle C. Ld See also generally 51 Fed. Reg. 24.496
(July 3, 1986). As a result, they cannot be regulated under the LDR program. See Horsehead
Resource Development Co.. Inc. v. EPA. No. 91-1221 and consolidated cases (D.C. Cir. Slip op.
Feb. 22. 1994) at 30 n.9 ("Bevill wastes which are not Subtitle C hazardous wastes remain [] exempt
from the LDR.").

Nevertheless. EPA's over broad definition of hazardous soil could conceivably be interpreted by
some parties to encompass these materials, thereby potentially causing them to be subject to the
Agency's LDR regulations. Such a result is clearly contrary to the Bevill Amendment. Thus. EPA
must modify the definition of hazardous soil to exclude "earthen materials" at mining and mineral
processing facilities to the extent that they are Bevill wastes.

B. EPA's Proposed Definition of Hazardous Soil iMust Be Modified do that It Does Not Cover
Soil Contaminated with Bevill Wastes
AMC is concerned that EPA's proposed definition of hazardous soil will encompass not only certain
naturally-characteristic soils, but also soils contaminated with Bevill wastes. This issue may arise in
a number of different contexts, including: (1) soils contaminated with both Bevill wastes only; and
(2) soil contaminated with both Bevill wastes and non-Bevill wastes (such as mineral processing
wastes that have been removed from the scope of the Bevill Amendment).3 Each situation is
considered separately below.

1. Soil Contaminated with Bevill Wastes Only
Soils contaminated with Bevill wastes only clearly cannot be subject to Subtitle C regulation. If such
soils exhibit a characteristic of hazardous waste, it must be because the uncontammated soils, the
Bevill wastes, or both exhibit a characteristic. The uncontammated soils, whether characteristic or
not, are not subject to regulation under Subtitle C. See Section III.A. 1. above. Likewise, the Bevill
wastes are excluded from Subtitle C regulation, whether or not they exhibit a characteristic. See
Section II.A.3, above. A combination of two materials that are not subject to Subtitle C regulation is
itself not subject to regulation under Subtitle C. Thus, soils contaminated only by Bevill wastes must
be excluded from regulation under Subtitle C. including the Subtitle C LDR program.

2. Soil Contaminated with Bevill and Non-Bevill Wastes
The presence of soil contamination from both Bevill and non-Bevill wastes should not alter the
3 Issues of soil contamination resulting from "non-Bevill mineral processing wastes" will, by definition.
potentially arise only at mineral processing facilities, and mineral processing operations at "integrated" facilities (see
note 2. above). To the extent that they may be deemed "solid wastes." soils from extraction and beneficiation operations
i such as mines and mills) are covered by the Bevill Amendment, even when such operations are conducted at an
integrated facility, and thus not subject to Subtitle C regulation (including the LDR program).

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conclusions set forth above. Even with contamination from non-Bevill wastes, these Bevill-
contammated soils should remain excluded from Subtitle C regulation. This is particularly true in the
case of soils contaminated with non-Bevill mineral processing wastes, and thus cannot be used to
subject soils contaminated with such wastes to Subtitle C regulation.

a. Soil Contaminated with Bevill and Non-Bevill Wastes Is Not Subject to
Subtitle C Regulation
There are several reasons why soil at integrated mining and mineral processing facilities that is
contaminated with both Bevill and non-Bevill wastes should not be subject to regulation under
RCRA Subtitle C. First, the unambiguous language of the Bevill Amendment states that Bevill
wastes are excluded from regulation under Subtitle C unless and until EPA makes a regulator.
determination in accordance with the special procedural and substantive requirements of the
Amendment that Subtitle C regulation is warranted. 42 U.S.C. § 6921 (b)(3)(A)-(C). EPA has not
made such a determination for any Bevill wastes. On the contrary, the Agency has determined that
Subtitle C regulation is not warranted for Bevill wastes from the mining and mineral processing
industry. 51 Fed. Reg. 24.496 (July 3. 1986); 56 Fed. Reg. 27.300 (June 13. 1991). Subjecting soil
contaminated in part by Bevill wastes to Subtitle C regulation would therefore violate the explicit
language of the Bevill Amendment and EPA's own regulatory determinations made under the
Amendment.

Moreover, the legislative history of the Bevill Amendment clearly demonstrates that Congress
intended the scope of the Amendment "to incorporate waste products generated in the real world."
126 Cong. Rec. 3362 (1980) (remarks of Rep. Bevill). In the "real world." mineral processing
operations are frequently conducted at integrated facilities, thus presenting the-possibility that soils at
the facility may become contaminated by both Bevill wastes and non-Bevill mineral processing
wastes. (The same is true at some non-integrated mineral processing facilities, which may generate
both Bevill wastes and non-Bevill mineral processing wastes.) If these contaminated soils were
subjected to Subtitle C regulation, the Bevill Amendment, which was designed "to relieve the [Bevill
Industries] of the onerous burden of stringent Subtitle C controls if at all possible." would be
seriously undermined. See Environmental Defense Fund v. EPA. 852 F.2d 1309. 13 15 (D.C.Cir.
1988). "

With regard to soils contaminated by non-Bevill wastes that exhibit the TC. Subtitle C regulation is
impermissible as a matter of law in light of the recent decision in Edison Electric Inst. V. EPA. 2
F.3d438(D.C. Cir. 1993) ("EEI"). In EEL the U.S. Court of Appeals for the District of Columbia
Circuit remanded the TC as it applies to non-Bevill mineral processing wastes. Thus. non-Bevill
mineral processing wastes that are "hazardous" solely by virtue of the TC are not subject to RCRA
regulation, a fact that EPA itself has conceded. See Brief of Respondent EPA in Mobil Oil Corp. v.
EPA. No. 91-1211 and consolidated case (D.C. Cir.) At 55 n.46 and accompanying text.
Accordingly, soil contaminated by characteristically "toxic" non-Bevill mineral processing wastes
cannot be subject to Subtitle C regulation because the soil does not contain a "hazardous waste".

Finally, excluding soil that is contaminated with Bevill and non-Bevill wastes from Subtitle C
regulation would be consistent with EPA's long-standing position that mixtures of Bevill and non-
Bevill wastes from the utility industry are covered by the Bevill Amendment. See 58 Fed. Reg.
42.446. 42.469-70 (Aug. 9. 1992); January 13. 1981 Letter from Gary N. District. Associate Deputy
Assistant Administrator for Solid Waste. EPA. to Paul Emier. Jr.. Chairman. Utilitv Solid Waste
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Activities Group ("Dietrich Letter"). EPA should take a similar approach here and exclude from
regulation soil contaminated by both Bevill and non-Bevill wastes.

b. At a Minimum. Soil Contaminated with Be^ill and Non-Bevill Wastes
Should Not be Regulated under Subtitle C if It Is Not Significantly Affected
By the Non-Bevill Wastes

If EPA decides, despite the arguments presented above, that soil contaminated with both Bevill and
non-Bevill wastes may be subject to Subtitle C regulation, the Agency should at a minimum specify'
that such soil is not subject to regulation unless it is significantly affected by the non-Bevill wastes.
In particular. EPA should state that soil contaminated with both Bevill and non-Bevill wastes at
integrated facilities is excluded from Subtitle C regulation unless it exhibits a characteristic of
hazardous waste that is not exhibited by either the Bevill waste or the uncontaminated soil.

This approach is not only the most logical one that could be selected by the agency (short of
exempting these materials from regulation entirely), but it would also be consistent with other actions
that have been taken by EPA. For example. EPA's longstanding position that mixtures of Bevill and
non-Bevill wastes from the utility industry are not subject to Subtitle C regulation was based in large
part on the fact that the "composition and character of the [Bevill] combustion wastes; that is. they
do not significantly alter the hazardous character, if any. of the [Bevill] combustion wastes."
Dietrich Letter, supra, at 5. In other words, the Bevill wastes, which by definition are "high volume.
low hazard" wastes, see, e.g.. Horsehead. slip op. At 24. remain "low hazard" wastes even after
being mixed with the non-Bevill wastes.

EPA previously has promulgated a test for determining whether residues from the co-processing of
hazardous wastes with normal raw materials in a Bevill device retain their

Bevill status. 56 Fed. Reg. 7134. 7197 (Feb. 21. 1991) (codified 40 C.F.R. § 266.112(b)). The
Agency did so out of recognition that:

So long as the processing of hazardous waste does not significantly affect the
character of the waste residues . . . then those wastes can remain excluded under the
Bevill Amendment. Put another way. the wastes can potentially remain the type of
material that Congress told the Agency to study before imposing Subtitle C
regulation.

56 Fed. Reg. At 7197. Under EPA's test, which was recently upheld by the United States Court of
Appeals for the District of Columbia Circuit in Horsehead. co-processing residues retain their Bevill
status as long as they are not ••significantly affect[ed]" by the hazardous waste. Horsehead. slip op.
At 25. The Court found that the significantly affected test "is a permissible interpretation of the
Bevill Amendment's low hazard criterion." Id.

EPA's rationale for promulgating the "significantly affected" test for Bevill residues also is
applicable in the case of soils contaminated with insignificant quantities of hazardous. non-Bevill
mineral processing wastes. Such soils can be "potentially remain the type of material that Congress
told the Agency to study before imposing Subtitle C regulation," i.e.. "high volume, low hazard"
Bevill wastes. If EPA refuses to adopt a general exemption for soil contaminated by Bevill and non-
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Beviil wastes, it should establish a test similar to that promulgated previously for Bevill co-
processing residues.

C. EPA's Proposed Definition of Hazardous Soil Must Be Modified So That It Does Not Cover
Soils Containing Insignificant Amounts of Non-Bevill Mineral Processing Wastes

AMC is concerned that EPA's proposed definition of hazardous soil will encompass not only
uncontammated soils, and soils contaminated, in whole or in pan. by Bevill wastes, but also
Contaminated soils that are contaminated with non-Bevill mineral processing wastes. Although soils
contaminated with non-Bevill wastes may be appropriately regulated in certain circumstances, they
are not properly regulated in others.! In particular, soils contaminated with non-Bevill wastes should
be excluded from Subtitle C regulation unless they exhibit a characteristic of hazardous waste that is
not exhibited by the uncontaminated soil." (American Mining Congress. CS2P-00173) [This
comment has an attachment with additional dam related to soil.]

Response: EPA is not. at this time, taking action to finalize either the definition of "hazardous soil" or the so
called "contained-in" policy. The preamble to today's final rule has a detailed discussion of when LDRs
apply to contaminated soil and of the contained-in policy, which, at this time, the Agency believes will
provide adequate guidance for program implementation.

The "contained-in" policy is discussed in detail in the preamble to today's final rule. Under current Agency
guidance on implementation of the contained-in policy, soil determined to contain so called "de-Bevilled"
waste would be subject to regulation under RCRA Subtitle C (this would include soil contaminated by both
"de-Bevilled" and Bevill wastes). Soil contaminated by exempt Bevill wastes would, of course, also be
exempt. Furthermore. EPA believes that it may be appropriate to determine that soil containing hazardous
constituents at or below natural background concentrations should properly does not contam any solid or
hazardous waste, and thus would not be subject to regulation as waste under RCRA. EPA notes that natural
background concentrations are concentrations present in areas that have not be affected by releases or other
human activities.

The commenter's long discussion of mixtures of Bevill and non-Bevill wastes in soils raises the same points
as raised in conjunction with the Bevill mixture rule .As set forth in detail in the preamble and in other
comment responses. EPA rejects the proposition that Bevill wastes can immunize regulated hazardous wastes
by being mixed with them. There is no statutory language compelling such a result, and it is bad policy to
allow an exemption to spill over to exempt regulated hazardous wastes. (The fact that there have been many
damage incidents involving exempt Bevill mining wastes adds empirical support to this conclusion. There is
no hint that each mixture will be managed in a manner which is protective of human health and the
environment, as is required by section 3004 of RCRA for management of hazardous waste.) The argument
that by regulating subtitle C hazardous waste-Bevill waste mixtures EPA will be regulating exempt Bevill
wastes is incorrect. EPA would be regulating the garden variety subtitle C hazardous waste.

• "Reference Chapter VII. Treatment Standards for Hazardous Soils part B. Applicability.
Regulatory Status of Treated Soils and Definitions: We are in favor of the Agency's pragmatic
proposal that would avoid requiring chemical analysis for soil properties in order to differentiate
As discussed previously, soils contaminated with characteristically "toxic" non-Bevill mineral
•irocessing wastes are not properly subject to Subtitle C regulation.

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precisely between waste, soil and debris." < Biogenesis Enterprises. Inc.. CS2P-00180)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
taking action to promulgate the definition of "hazardous soil"' the definition of "soil" discussed in the 1993
LDR Phase 2 proposal and proposed in the 1996 HWIR-Media proposal is being promulgated, as proposed.
today.

• "The Definition of Hazardous Soil Should Encompass Soil Containing Characteristic Hazardous
Waste Even if the Soil as a Mixture no Longer Exhibits the Characteristic. The definition of
hazardous soil in the preamble Includes only soils containing listed wastes and those soils that
exhibit a characteristic. The definition, as drafted, does not include soils that contain a spilled or
placed characteristic waste but cease to exhibit the characteristic. In our view, such soils that do not
exhibit a characteristic achieved that status through dilution. We believe that 40 C.F.R. § commands
that such soils be regulated because they contain a hazardous wastes, just as any other waste.
Although we agree with the EPA that those in the regulated community are unlikely to rush to
illegally contaminate soil, regulations that permit a characteristic waste to become unregulated as a
result of an accidental spill do create an incentive to be less careful in managing hazardous wastes."
(USPCI. CS2P-00171) [This comment has an attachment with additional data related to soil.}

Response: EPA is not. at this time, taking action to promulgate either a definition of "hazardous soil" or the
so called "contamed-in" policy. Although not codified, the contained-in policy will continue to be
implemented, as appropriate, by EPA regions and authorized states. Current EPA guidance on
implementation of the contained-in policy and the relationship of contained-in determinations to LDR
treatment requirements is discussed in detail in the preamble to today's final rule. The Agency notes that it is
not convinced, at this time, that it is necessary to change its longstanding policy regarding soil contaminated
by spills of characteristic hazardous waste. The Agency's policy continues to be that soil contaminated by
such spills is not automatically subject to RCRA Subtitle C requirements but. instead, is subject to RCRA
requirements only if it is determined to contain hazardous waste or exhibit a characteristic of hazardous
waste. The Agency further notes that it continues to believes that, in the case of soil contaminated by spills of
hazardous waste, it is reasonable to determine that such soils do not contain hazardous waste if. when first
generated, the soil do not exhibit a characteristic of hazardous waste. The Agency believes it is reasonable to
treat soil contaminated by listed hazardous waste differently from soil contaminated by characteristic
hazardous waste, in part, because there are clearly defined tests which can be applied to determine whether
any given material, waste or soil, exhibits one of the hazardous characteristics. In addition, determining
whether soil which does not exhibit a characteristic has been contaminated in the past with, a characteristic
waste poses very difficult administrative and implementation issues.

EPA also notes that it has a long-standing interpretation for characteristic wastes that new treatability groups
are considered to be new points of generation for determining if LDR prohibitions attach, see 55 FR at
22661/2 (June 1. 1990). which would indicate that the soil is a new point of generation for LDR purposes
because it is a new and distinct treatability group. Of course, such soil would continue to be subject to
applicable cleanup authorities, including, applicable RCRA cleanup authorities.

EPA agrees with the commenter that deliberate mising of chraractenstic wastes with soil for purposes of
avoiding proper treatment of the waste is impermissible dilution (it also would likely violate many other
subtitle C regulatory provisions) and that therefore there is a strong disincentive not to engage in such
conduct.
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Finalh. EPA notes that this comment was not repeated as a comment to the 1996 reproposal (althouen the
same issue is presented). EPA's response here should not be viewed as conceding that this issue remains
preserved for purposes of review..
• "I. Paragraph VII.B.4.a. page 48123. Definition of Hazardous Soils. The definition of hazardous
soils should take into account constituents, such as metals, that occur naturally in soil. The
application of 40 CFR 261. Subpart C. for defining hazardous waste characteristics should be
modified for hazardous soils. A soil being classified as a hazardous waste should be the result of
past "generator" activities and not because of a naturally occurring concentration of a constituent.
Otherwise, a facility may be required to treat a particular constituent to a concentration below its
naturally occurring concentration in the soil." (Department of the Army. CS2P-00160)

Response: EPA is not. at this time, taking action to promulgate either the definition of "hazardous soil" or
the so called "contained-in policy." Although not codified, the contained-in policy will continue to be
implemented, as appropriate, by EPA regions and authorized states on a site-specific basis. Current Agencv
guidance on implementation of the contained-in policy is discussed in detail in the preamble to today's
proposal. The Agency agrees that, generally, soil with concentrations of hazardous constituents at or below
naturally occurring background concentrations should not be determined to "contain" hazardous waste. In
addition. EPA has concluded that treatment to comply with the soil treatment standards should not be
required if constituent concentrations fall below naturally occurring background concentrations, provided the
soil will continue to be managed on site or in an area with similar natural background concentrations. If soil
will be sent for land disposal off-site, compliance with the alternative soil treatment standards is required.
since the Agency believes that natural background concentrations on-site will not automatically correspond to
natural background concentrations at a remote land disposal facility. This issue is discussed in more detail in
the preamble to today's final rule.

• K. W. Brown Environmental Services submitted an attachment entitled. "The Near-Future Option
to Landfill Waste-Affected Soil" (see CS2P-00181.A).

• "In the preamble, the EPA has proposed that the definition of hazardous soil allow site operators to
determine whether the material to be excavated is waste, debris, or soil, by judging the results of
simple in-situ mechanical removal processes to separate the materials. ENRON supports this
position." (ENRON. CS2P-00187)

Response: EPA appreciates this support of the definition of soil. Although the Agency is not. at this time.
taking action to promulgate the definition of''hazardous soil." the definition of "soil" discussed in the 1993
LDR Phase 2 proposal and proposed in the 1996 HWIR-Media proposal is being promulgated, as proposed.
today.

• "We applaud EPA for recognizing that materials encountered in remediation are often complex
mixtures, and simple definitions of soil, sludge, debris, etc. don't reflect the sort of materials
encountered in the remediation context. Remediation, and the relief so sorely needed from the
existing RCRA requirements, is not limited to soils or sediments. In fact, the materials managed in
remediation activities typically consist of a range(and often mixtures of) materials, running the
gamut from soil, sediments, construction fill and ash through weathered sludges and the contents of
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one hundred year old solid waste landfills.

While these materials may be physically disparate they share many similar attributes. Generally they
are the products of past, unregulated waste management activities or a potential releases. They are
currently regulated not through typical solid waste management regulations but through specialized
programs for environmental remediation. And they are addressed as integral parts of an overall
remediation activity. To only exempt some of these materials from those portions of RCRA which
currently inhibit remediation is to continue to inhibit the entire remedial process.

For example, on old basin may contain a sludge like material contaminated with toluene, surrounded
by soils contaminated with toluene and adjacent to a stream whose sediments contain toluene. To
provide regulatory flexibility for the soils and sediments such that they can be aggregated and treated
on-site to levels protective of human health and the environment and redeposited. while requiring that
the sludge be removed without stockpiling, incinerated to achieve LDRs and then buried in a RCRA
land fill makes little sense. It also provides a significant disincentive for the owner/operator to
undertake any remedial action, as that leads him closer to the outlandish excavation and incineration
of the sludge." (DuPont. CS2P-L0003)

Response: EPA appreciates this support of the definition of soil and of tailored approaches to remediation
more generally. Although the Agency is not. at this time, taking action to promulgate the definition of
"hazardous soil." the definition of "soil" discussed in the 1993 LDR Phase 2 proposal and proposed in the
1996 HWIR-Media proposal is being promulgated, as proposed, today.

5.B.2 Definition of Constituents Subject to Treatment, and Procedures for
Handling Non-analyzable Constituents

• "EPA's proposal is unclear with respect to the necessity of testing for constituents subject
to the universal treatment standards. At various portions of the preamble (see 58 Federal
Register 48098, and 48102), EPA indicates that only the constituents "regulated" in listed
waste must be analyzed. This statement is not clear, in that it does not clearly indicate
whether the "regulated" constituents are those which were the basis of listing or whether
some other subset of the universal treatment standards are the "regulated" constituents. In
other portions of the preamble. EPA indicates that it would only require "monitoring" to
address constituents "reasonably expected" to be present in the waste. It is unclear,
however, whether or not "monitoring requires testing, and whether "reasonably expected"
must be based on testing, process knowledge or similar information which is detailed
enough to ascertain whether tiny amounts of constituents subject to the UTS are present.
This is particularly problematic for soils, especially given the likelihood of background
metals." (Boeing, CS2P-00029)

Response: EPA has clarified that, in the case of soil subject to the LDRs, the soil treatment.
standards much be achieved for all underlying hazardous constituents reasonably expected to be
present in any given volume of contaminated soil when such constituents are found at initial
concentrations greater than lOxUTS. As discussed in the preamble to today's final rule, the
Agency is confident that such constituents can be identified through applying knowledge of the
-------
soil and likely contaminants at the facility and that testing for the full suite of UHC should.
therefore, seldom if ever be required. The Agencv has also clarified that further treatment is not
required if concentrations of hazardous constituents fall below naturally occurring background
concentrations. These issues are both discussed, in detail, in the preamble to today's final rule.

• "The HWTC highly supports EPA's proposal approach for identifying the contaminants
subject to treatment for contaminated soil. The HWTC feels that all of the constituents on
either the UTS or the F039 list must be evaluated to determine if the concentrations
exceed the respective BOAT standards. In remedial situations the HWTC agrees with
EPA's conclusions that soils are frequently contaminated with a variety of hazardous
constituents that go well beyond the constituents usually associated with the listed or
characteristic wastes. The HWTC agrees fully with EPA's rationale on page 48123 and
48124 that all contaminants on the UTS and/or F039 list must be evaluated.

The HWTC does not agree with EPA's proposal not to require analysis data. Without
mandatory analytical determinations, it is impossible to prove or demonstrate by
knowledge what constituents are present, and if the quantities exceed the BOAT standard
levels. Only analytical determinations can be used to definitely show the presence of these
constituents in the wide variety of wastes from numerous sources. At least a one time
analysis should be required." (Hazardous Waste Treatment Council. CS2P-00060)

Response: EPA is not, at this time, persuaded that it is necessary to require certain types of
mandatory analysis for all potentially hazardous contaminated soil. The Agency continues to
believe that analysis should be appropriately focused, using knowledge of the site, soil, and likely
contaminants, on constituents of concern or classes of constituents of concern. This is consistent
with the approaches the Agency is taking in remediation programs and with the Agency's
longstanding rules (judicially upheld) on application of knowledge to determinations about
whether any give solid waste is hazardous, and which hazardous constituents are subject to
treatment requirements.

• "Page 48124. U.S. EPA is proposing that hazardous soil would be treated for each
constituent subject to treatment, regardless of whether the contaminating waste is a listed
or characteristic waste. This is going to be very difficult for a regulatory agency to
enforce because regulators don't always know what constituents should be "reasonably
expected to be present". Cleaning up an abandoned site will require that the soil be
analyzed for all of the universal waste constituents." (Association of State and Territorial
Solid Waste Management Officials, CS29-00091)
]
Response: EPA is not. at this time, persuaded that it is necessary to require certain types of
mandatory analysis for all potentially hazardous contaminated soil. The Agency continues to
believe that analysis should be appropriately focused, using knowledge of the site. soil, and likely
contaminants, on constituents of concern or classes of constituents of concern. This is consistent
with the approaches the Agency is taking in remediation programs and with the Agency's
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longstanding rules on application of knowledge to determinations about whether any give solid
waste is hazardous, and use of knowledge to determine LDR applicability.

• "Nonanalyzable Constituents (page 48124): GM strongly supports the Agency's decision
to not propose treatment standards for nonanalyzable constituents in hazardous soil. We
also advocate allowing the use of technologies other than those specified in S268.42 for
treatment of soils containing nonanalyzable constituents." (General Motors, CS2P-00095)

Response: EPA appreciates this support for the Agency's approach to nonanalyzable
constituents.

• "The discussion regarding non-analyzable constituents seems out of context with the
proposed regulations. How can a RP or the EPA determine if a contaminant is present if
there are no proven .analytical methods to determine its concentration level9':'

Also, if it in non-analyzable. how will a contractor know when if the treatment process is
working9" (Southwest Soil Remediation. CS2P-00109)

Response: As discussed in detail in the preambles to the LDR Phase 2 and HWIR-Media
proposals, sometimes soil is contaminated with both analyzable and nonanalyzable constituents.
The nonanalyzable constituents would be known to be present, for example, by applying
knowledge of the likely soil contaminants. In the case of soil contaminated with both analyzable
and nonanalyzable constituents, EPA believes treatment of the analyzable constituents will serve
as a surrogate for treatment of the nonanalyzable constituents. In the case of soil contaminated by
only nonanalyzable constituents, treatment by the specified treatment method is required.

• "Treatment of analyzable constituents in soils should provide adequate treatment of
nonanalyzable constituents as well.

Westinghouse supports the Agency's proposal not to issue treatment standards for
nonanalyzable constituents found in hazardous soils. We agree that treatment of
analyzable constituents to meet specified treatment standards should provide adequate
treatment of the nonanalyzable constituents." (Westinghouse Electric Corp., CS2P-
00115)

Response: EPA appreciates this support for the Agency's approach to treatment of
nonanalyzable constituents.

• "Eliminating the wastes currently listed in 40 CFR 268.42 from using the universal
standards proposed under the new ruling may effectively eliminate the use of innovative
technologies for remediating most soils containing pesticide or solvent contaminants. For
example if RCRA soils at an abandoned air strip site contain toxaphene in addition to
DDT. malathion etc.. then the site must be treated with either biodegradation or
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incineration.

I agree with the motivation behind the proposed standards described in the 5th paragraph."
(Southwest Soil Remediation. CS2P-00109)

Response: L'nder today's final rule contaminated soils subject to the LDRs may be treated either
to the universal treatment standard for the contaminating waste or to the soil treatment standards
promulgated today. EPA believes the soil treatment standards promulgated today can be
routinely achieved using non-incineration technologies.

• "EPA should consider natural background levels for metals in treatment standards for
hazardous soils. Westinghouse requests that EPA clarify the issue of treating soils to
levels that are below background concentrations and require treating soils only for those
constituents that should be reasonably be expected to be present in the contaminated
media. As an example, many waste sites are located adjacent to roadways, and often lead
and benzene, toluene, ethylene and xylene (BTEX) levels are found at elevated levels. In
some cases, the treatment standards are more restrictive than the risk based levels
pursuant the CERCLA." (Westinghouse Electric Corp., CS2P-00115)

Response: EPA has clarified in today's final rule that further treatment is not required when
constituent concentrations fall below naturally occurring background concentrations. (EPA notes
that in the situation suggested by the commenter, contamination by BTEX constituents along
roadways, it is unlikely such contamination would be considered "natural" background, since it is
likely the result of human activities.) In addition to clarifying the background issue, EPA has
provided an opportunity for site-specific, risk-based levels to cap the technology-based soil
treatment standards, provided such levels are found to minimize threats within the meaning of
RCRA Section 3004(m) and are approved through a treatment variance. The so called site-
specific, risk-based minimize threat variance is discussed in detail in the preamble to today's final
rule.

• "EPA proposes to require hazardous soil to meet treatment standards for any regulated
constituents found in Table UTS.

Westinghouse opposes this proposal. As with ignitable and corrosive wastes and the
proposed TC organic wastes. Westinghouse believes that EPA should not require the
testing of underlying constituents unless the waste is regulated for those constituents.
EPA should revise how they define the universe of regulated wastes (most probably
resulting from the finalization of the HWTR) before it imposes LDR requirements on
constituents that do not cause the waste to be regulated. Inequities described in our
comments in Section IV. A. in the LDR program create confusion in the regulated
community. This is particularly true of soil matrices. As EPA stated, "soils (like multi-
source leachate) frequently are contaminated with an enormous variety of contaminants
from diverse sources." These soils mav or mav not be reaulated hazardous waste. Those
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that are regulated because they contain constituents from a listed source may be much less
inherently hazardous than soils that have no listed or characteristic component. This
concept creates an "all-or-nothing" regulatory approach. Before EPA imposes rigorous
LDR compliance monitoring requirements, the Agency should redefine what defines a
waste under the RCRA program." (Westinghouse Electric Corp., CS2P-00115)

Response: EPA is not. at this time, taking action on the portions of the LDR Phase 2 or HWTR-
Media proposals that would have codified the contained-in policy. Like many commenters. EPA
continues to believe legislation is necessary to reform the regulation of remediation waste.
including contaminated soil, under RCRA Subtitle C.

In the meantime, today's soil treatment standards will apply to any contaminated soil subject to
LDRs and treatment will be required for all underlying hazardous constituents reasonably
expected to be present when such constituents are found in initial concentrations greater than
lOxUTS. Since, as discussed in both the 1992 and 1996 proposals, contaminated soils are
potentially contaminated with a wider range of hazardous constituents than process wastes. EPA
believes this approach is prudent in light of the Chemical Waste opinion which addressed a similar
circumstance (potential presence of wide variety and concentrations of hazardous constituents)
for wastes that were hazardous because they failed the toxicity characteristic leaching procedure.
See Chemical Waste Management v. US EPA, 976 F.2d at 16-18 (D.C. Cir 1992). This issue is
discussed in detail in the preamble to today's final rule.

• "Uniroyal Chemical supports the language proposed in 40 CFR 268.7 (a) (10) and (11)
wherein the responsibility for determining underlying hazardous constituents in hazardous
soils and the certification requirements will continue to be noninteractive with regard to
the Environmental Protection Agency. This is a particularly important consideration for
generators of hazardous soil who manage their hazardous waste activities within the
constraints of 40 CFR 262.34 which limits the on-site storage to less than ninety days.

Since the hazardous waste program was initiated, it has been the generator's responsibility
to manage and remedy on-site spills when they occur. Unless a spill is significant, the
generator identifies the waste and manages it within the bounds of the hazardous waste
management program. Waste analyses of identification by process knowledge have been
self-implementing with a records retention requirement to date. It is important for
generators who manage their wastes in less than 90-day accumulation storage areas that
the alternative treatment standards for soil remain self-implementing. Specifically, if a
generator selects a treatment method which will meet the 90% removal should be
communicated between the generator and off-site treatment/disposal facility and retained
in the waste analysis file only. It should not become an additional reporting burden to the
agency or require agency approval; i.e., LJniroyal supports the regulations specified in 40
CFR 268.7 (a) (10)~and'(11)." (Uniroyal Chemical Company, Inc., CS2P-00140)

Response: The agency appreciates this support of its approach to constituents subject to
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treatment.

• "The Army has many clean-up sites which will generate hazardous media. The proposed
rule could benefit both waste management and remediation activities by exclusion of low
risk media from R.CRA Subtitle C regulations. This would allow scarce resources to be
spent in other areas to better protect public health and environment.

2. Paragraph VII.B.4.d, page 48124. Nonanalyzable Constituents. Comments were
requested on establishing treatment standards for soils with nonanalyzable constituents.
(A clarification or definition is needed for "nonanalyzable". Does this mean analytical
methods are not available or the constituents cannot be routinely analyzed using SW-846
methods within an allowable magnitude of a set standard9 We assume the later.)

a. Soils contaminated with multiple constituents, some of which are nonanalyzable.
Demonstrating that the treatment standards for the analyzable constituents have been met
for soils contaminated with multiple constituents, both analyzable and non-analyzable.
should be sufficient. However, the methods used to treat these soils should be approved
for the treatment of the nonanalyzable constituents.

b. Soils contaminated solely with nonanalyzable constituents. Treatment methods for
soils contaminated only with nonanalyzable constituents should be specified in 40 CFR
268.42. These methods should only serve as a base line. The waste generator should be
allowed to demonstrate other methods may proposed treatment standards. A process is
needed in which a waste generator can petition for the use of an alternate method.

c. Media contaminated with nonanalyzable constituents should still be eligible for an
exemption or exclusion should be allowed under the proposed "contained-in"
determination and any other options developed from the re-proposal of the Hazardous
Waste Identification Rule.

d. Constituents identified as having analytical methods with a quantitation limit two
orders of magnitude greater than the treatment standard should not be considered
nonanalyzable for treatment purposes. Constituents identified as having analytical
methods with a quantitation limit two orders of magnitude greater than a health based
level should not be considered nonanalyzable and completely ineligible for an exemption.
Media contaminated with these constituents should still be eligible for an exemption or
exclusion from RCRA Subtitle C regulations." (Department of the Army, CS2P-00160)

Response: These comments deal with treatment of soil contaminated with nonanalyzable
constituents. As discussed in both the 1993 and 1996 proposal, and finalized in today's final rule,
soil contaminated with both analyzable and nonanalyzable constituents should be treated to meet
the treatment standards for the analyzable constituents. The Agency continues to believe this
treatment will generally serve as an adequate surrogate for treatment of nonanalyzable
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constituents. Soil contaminated Solely with nonanalyzable constituents should be treated usins
the treatment method specified in the regulations, unless an alternative treatment method is
approved by EPA or an authorized state. These principals apply regardless of the practical
quantiation limits associated with any given nonanalyzable constituent.

• "The LDEQ agrees with EPA's approach for non-anaiyzable constituents in soils. It is felt
that treating for analyzable constituents should provide treatment to appropriate levels for
non-analyzable constituents. The EPA should reserve the right to change this when the
methods to analyze and classify these constituents becomes available. The LDEQ also
agrees with the Agency's proposed treatment method for non-analyzable U or P wastes
unless the other technologies have demonstrated that they can remove the hazardous
constituents from the soil." (Louisiana DEQ, CS2P-00167)

Response: The Agency appreciates this support for its approach to treatment of nonanalyzable
constituents.

• "Non-analyzable constituents: API supports the definition proposed by EPA. API agrees
that for those constituents where there currently exists no analytical method to
quantitatively determine their concentration in a hazardous soil, treatment for constituents
for which there are adequate methods should satisfy the LDR requirements." (API,
CS2P-00169)

Response: The Agency appreciates this support for its approach to treatment of nonanalyzable
constituents.

• "Constituents Subject to Treatment: EPA has proposed this term to mean any constituent
or constituents, present in a hazardous soil at a level or levels above the universal
treatment standard(s).5 Such a definition is unacceptable in that it could require a person
managing hazardous soil to undertake an extremely detailed sampling and analysis
program to "characterize an entire site in order to confirm the suite of constituents that are
or are not present. This type of detailed analysis is cost prohibitive, and in most instances.
unnecessary. Generators of hazardous soil - similar to generators of hazardous waste -
should have the option of relying on their knowledge of the site, site records, and waste
management history among other factors, to limit the number of constituents of concern
for a particular remediation." (API, CS2P-00169)

Response: As discussed further in the preamble to today's final rule, the Agency is persuaded
that it is prudent to apply the logic of the Chemical Waste opinion to contaminated soil. For that
In determining whether a particular volume of hazardous soil warrants treatment, API believes that
it is important to consider whether the universal treatment standard for an individual constituent is below the known
naturally-occurring background level for that constituent. One should not have to treat soils to levels that are below
naturally-occurring background concentrations.

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reason, contaminated soil subject to the LDRs must achieve treatment standards for all underlying
hazardous constituents reasonably expected to be present in any given volume of contaminated
soil when such constituents are found at initial concentrations greater than IQxUTS. The Agency
is confident that generators can apply knowledge about likely soil contaminants to target sampling
and analysis to ensue that it is focused on appropriate constituents or classes of constituents.

5.B.3 Illegal Contamination of Soil

• "The incentive for illegally mixing hazardous waste with soil to avoid more stringent
standards is minimal. The increase in volume of a waste due to dilution with soil
would quickly cancel out any cost incentive even though incineration has about ten
times the cost of direct disposal in a hazardous waste landfill. Therefore. The Boeing
Company does not believe that additional safeguards are necessary." (Boeing, CS2P-
00029)

Response: EPA agrees that existing safeguards will adequately minimize incentives to illegally
manage prohibited hazardous waste in a way that creates contaminated soils for the purpose of.
then, applying the soil treatment standards.

• "B. Non-permissible Mixing of Soils

The HWTC supports EPA's proposal on this matter." (Hazardous Waste Treatment
Council, CS2P-00060)

Response: EPA appreciates this support of the proposed approach. The Agency continues to
believe that existing safeguards will adequately minimize incentives to illegally manage
prohibited hazardous waste in a way that creates contaminated soils for the purpose of. then.
applying the soil treatment standards.

• "Illegal Contamination ('58 FR 48124)

AWPI is concerned that the rule as proposed will make it impossible to conduct cleanup
of contaminated sites without being exposed to civil and criminal prosecution.
Removing contaminated soil will always capture some clean soil due to equipment
limitations and analytical characterization limitations. As proposed, this would
technically constitute illegal commingling. Further, some forms of treatment require
homogenous soil concentrations to set effect treatment parameters. These sorts of
activities should not make the generator or his treatment contractor subject to civil or
criminal penalties." (American Wood Preservers Institute, CS2P-00047)

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considered intentional dilution and is not impermissible. This is the case even if
concentrations of hazardous constituents vary across the area of contaminated fas is typically
the case), provided the intent of such mixing is not to circumvent the LDR treatment
standards. The Agency notes that, given that contaminated soil is. by it's nature heterogenous
and dispersed across facilities, any other approach would seem to present insurmountable
implementation difficulties. In this way contaminated soil is different from hazardous wastes
generated by on-going industrial operations. Such pure, industrial hazardous wastes are
typically generated at distinct points in a process, can be easily segregated from other materials
at their point of generation, and, compared to contaminated soils, are relatively homogenous.

• "The U.S. EPA should reevaluate whether the absolute prohibition against mixing wastes
with soil should be applied at remediation sites. The U.S. EPA rather broadly states on 58
FR pages 48123 and 48124 of the preamble that the deliberate addition of hazardous
constituents or hazardous waste to soil constitutes illegal contamination of soil which is
punishable by civil and criminal penalties. In our view, this prohibition against mixing
should apply to as-generated hazardous waste, but should not apply in the context of
remedial actions. A blending operation (which is part of the site cleanup activities) to
even out the concentration of contaminants with in the soil feeding into a treatment system
is an important preliminary step in the process design for a number of soil treatment
technologies. For example, mixing to control the BTU content of the soil feed is a critical
aspect for ail the materials at these sites in the most cost-effective manner which is
adequately protective of human health restrictions, such as the prohibition against mixing,
which conflict with this goal." (ASTSWMO. CS2P-00091)

Response: EPA takes this opportunity to clarify that the normal mixing of contaminated soil
that typically occurs within areas of contamination at any given remedial site during the course
of remedial activities or in the course of normal earthmoving and grading activities is not
considered intentional dilution. This is the case even if concentrations of hazardous
constituents vary across the area of contaminated (as is typically the case), provided the intent
of such mixing is not to circumvent the LDR treatment standards. The Agency notes that.
given that contaminated soil is, by it's nature heterogenous and dispersed across facilities, any
other approach would seem to present insurmountable implementation difficulties. In this way
contaminated soil is different from hazardous wastes generated by on-going industrial
operations, such pure, industrial hazardous wastes are typically generated at distinct points in a
process, can be easily segregated from other materials at their point of generation, and,
compared to contaminated soils, are relatively homogenous.

• "Illegal Contamination of Soil (page 48124): GM agrees that the existing prohibitions
(Sections 268.3 (a) & (b), 268.41 (b), and 3008 (a)) are sufficient to deter deliberate
addition of hazardous constituents or wastes to soil (or vice versa). We do not see a
need for addition safeguards. However, the use of spent materials (including process
wastes) as substitutes for commercial treatment materials (e.g., spent acid used for
neutralization of corrosive soil) should be specifically allowed." (General Motors.

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CS2P-00095)

Response: EPA appreciates this support of the Agency's approach to illegal contamination of
soil.

The use of spent materials, including process wastes, as substitutes for commercial treatment
material is not the subject of today's rulemaking and continues to be governed by existing
regulations.

5.C. COMMENTS ON PROPOSED APPROACHES FOR ESTABLISHMENT OF
TREATMENT STANDARDS FOR SOILS (See Chapter 11 and Sections 27.A and
27.C)

• "It is unclear as to whether the EPA plans to make all three proposed alternatives available
for hazardous soils, or whether only one will be selected for final promulgation. Proposed
language for 40 CFR 268.47 makes it appear that EPA will be promulgating all three. The
EPA should clarify its intent.

In the event only one of the alternatives is selected, we believe the second option is the
most technically sound. This option requires that one achieve a ceiling concentration of
one order of magnitude above the universal treatment standard (UTS) irrespective of
treatment efficiency, and would provide the greatest treatment flexibility while limiting
threats to the environment. We recognize that there would be instances where a soil could
not be treated to this level due to high initial concentrations, which could result in the need
to pursue more aggressive treatments such as incineration. However, we believe this
drawback is outweighed by the benefits of this approach over the other alternatives.

Selecting the first option would also provide for a ceiling one order of magnitude greater
than the UTS. but would additionally require a 90% treatment efficiency. If this
alternative were selected, situations would arise where the initial concentration of a
constituent was slightly above the ceiling concentration, requiring that it be reduced by
90%. If this efficiency could not be achieved, the soil would be subject to the base UTS
concentration which also could not be met. leaving as the only alternative a site-specific
treatability variance.

The third option would require a 90% treatment efficiency without a concentration ceiling.
While appealing for most scenarios, as EPA stated in the preamble, allowing this option
for highly contaminated wastes could result in the land disposal of high levels of toxic
constituents. It would be preferable to require more severe treatment of these wastes to
meet a concentration limit than to allow the disposal of such materials without additional
criteria specified for assessing risk." (INEL, CS2P-00018)

• "A summary describing the interaction between UTS and cleanup activities involving soil

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removal should be included in the final rule. Since the L'TS includes contaminants that
can be naturally occurring, does a facility have to treat the soil below background
concentrations for naturally occurring contaminants0 The EPA should also describe what
would constitute adequate documentation for background evaluation." (INEL. CS2P-
00018)

"The development of UTS including the position of establishment of a 'Ceiling Limit'
for achieving concentration based treatment standards for soil is acceptable. In
addition, the EPA should consider establishing a treatment technology for soil that
would allow facilities to achieve LDR treatment standards by some other means other
than achieving a concentration based standard. Regardless whether the treatment
technology result in 'exiting' Subtitle C regulations, by establishing alternative
technologies, a facility could continue to store LDR regulated waste under the LDR
storage prohibition without any legal implications.

The EPA's position on the development of an 'exiting Criteria' for Subtitle C
regulation is acceptable. The de minimis level for listed waste should be based on
being protective of human and health and the environment (the same as the LDR
requirements). Since HSWA mandates that LDR treatment standards be protective of
human health and the environment; the development of UTS/Ceiling Limits (or other
LDR standards) should be satisfactory for exiting Subtitle C regulation.

The development of UTS is acceptable. However, of the three options presented in the
proposed rule, only one of the three seems appropriate. The UTS for soil should be
achieved by meeting a 'Ceiling Limit.' Also, there should in addition be a treatment
technology expressed as an alternative. The establishment of 'Ceiling Limits' for soil
due to the variability of soil matrices is a reasonable approach.

The establishment of a 'Ceiling Limit' and meeting a 90% reduction would not be well
suited for the regulated community. The additional paperwork and associated
calculations would be prone to errors and is not as straight forward as achieving a
numerical or technical based standard by itself. In addition, compliance with both
criteria would result in waste containing various concentrations being disposed (some of
which would be below the UTS/Ceiling Limit). The complexity associated with
compliance evaluation for these various concentrations would be tune consuming and
difficult to evaluate. The proposed rule includes establishing UTS (or Ceiling Limits)
in an order to have consistent regulatory levels for waste constituents. Meeting both
criteria (e.g. Ceiling Limit and 90% reduction) appears to be inconsistent with the
initial purpose of proposing UTS/Ceiling Limits. It makes no sense to require
treatment to levels that are inconsistent for the same constituent. The UTS/Ceiling
Limits are required to be protective of human health and the environment and therefore
should be satisfactory without the addition of a 90% reduction requirement.
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The requirement of a 90% reduction for each contaminant, by itself, does not appear to
protective to human health or the environment due to the potential for land disposing
soil containing high concentrations of contaminants. In addition. HSWA requires that
levels be established that are protective. A 90% reduction, by itself, does not appear to
meet this criteria." (INEL. CS2P-00018)

The option promulgated today is consistent with the commenters recommendation in that future
treatment will not be required when constituent concentrations fall below lOxUTS.

The basis for EPA's April 29. 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

EPA has provided a detailed discussion of the relationship of LDR treatment requirements to
the contained-in policy and to remediation activities generally, in the preamble to today's final
rule. As part of that discussion, EPA has clarified that, for purposes of LDRs, further
treatment is not required when concentrations of hazardous constituents fall below naturally
occurring background concentrations.

• "HWAC strongly supports the development of reasonable regulatory programs to
protect human health and the environment from the adverse effects of exposure to
hazardous and solid wastes. Consistent with our overall RCRA regulatory philosophy
outlined above, HWAC strongly supports the development of alternative treatment
standards for hazardous soils that encourage flexibility and the use of a wide range of
remediation technologies to meet LDR restrictions while at the same time providing the
regulated community with nationally consistent standards. HWAC also believes that
mixed radioactive hazardous soil should be subject to these alternative treatment
standards for soil, rather than the treatment standards for the contaminating waste.

EPA's hazardous soil proposal is an important step in providing clear regulatory
direction to the regulated community with respect to the management of various types
of contaminated environmental media. Proper management of hazardous soils is a
critical component of the overall RCRA regulatory effort, and HWAC agrees with
EPA's philosophy of establishing specific mechanisms for determining the RCRA
regulatory status of hazardous soils, including radioactive mixed wastes. This approach

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will allow hazardous waste engineering firms to focus more effectively on the best
practicable technical solutions to satisfy RCRA requirements. It also will help increase
overall RCRA program efficiency and encourage cost-effective responses to RCRA
LDR treatment requirements.

HWAC understands and concurs with EPA's statement in the proposed rulemaking
that:

"Soils (like multi-source leachates) frequently are contaminated with an enormous
variety of contaminants from diverse sources. A treatment scheme that ignored this
reality would not fulfill the requirement of §3004(m) of RCRA that the hazardous
constituents present in prohibited wastes be treated so as to minimize threats to human
health and the environment." (58 Fed. Reg. at 48,124)

EPA has used this rationale for requiring hazardous soil to be treated for each
constituent subject to treatment, regardless of whether the contaminating waste is a
listed or characteristic waste. In addition. EPA is proposing to define constituents
subject to treatment as any regulated constituent found on Table UTS of the proposed
rule. (The constituents in Table UTS are all of the BDAT listed hazardous constituents
that can be analyzed.)

While HWAC strongly supports EPA's attempts to encourage flexibility and the use of
innovative technologies, HWAC is nevertheless concerned that the establishment of
hazardous soils treatment standards based solely on a BDAT standard philosophy is
neither appropriate nor cost-effective. As noted with respect to the proposed LDR
UTSs. HWAC recommends that any hazardous soil standards be based upon the risks
to human health and the environment posed by the hazardous constituents contained in
this media. Congressional sentiment for risk assessment to be part of this process can
be noted in support for the proposed Risk Communication Act of 1993 (H.R. 2910).
Basing treatment standards solely on BDAT may force the selection of technologies that
do not cost-effectively protect human health and the environment, while incorporating
risk assessment in the process of establishing treatment standards could foster the
development of potentially less costly innovative technologies to solve hazardous waste
problems today and in the future.

HWAC members have conducted many thousands of RCRA projects utilizing virtually
all types of treatment technologies. Member firms make treatment selection
recommendations to clients that are free from any biases toward particular
technologies. Instead, these recommendations are based on a broad range of project-
specific factors, such as the waste constituent characteristics, national treatment
capacity considerations, specific site conditions, cost-effectiveness, and whether the
remedy is protective of public health and the environment. Thus, HWAC believes that
EPA's overall RCRA goals can best be met when there is flexibility to utilize a broad

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range of technologies with the specific needs of each land disposal treatment facility.

Moreover. HWAC believes that EPA cannot justify the need for treatment of all
constituents under the proposed regulatory scheme without basing the treatment
standards on an assessment of the current and potential threat to human health and the
environment using site specific considerations. The only mechanism of reasonably and
cost-effectively fulfilling the requirements of §3004(m) of RCRA is to base treatment
standards on a case-by-case assessment of the relative risks to human health and the
environment posed by the hazardous constituents present at a site.

EPA has proposed three different approaches for establishing treatment standards for
hazardous soils, all of which are technology-based. Under these approaches, the
proposed LDR universal treatment standards would be used as "base" standards for
regulating hazardous soils. Using these "base" standards, EPA proposes the following
alternative approaches for imposing LDR standards on hazardous soils:

(1) the use of a range of treatment standards with a 'ceiling" one order of magnitude
above the universal standard, provided 90% treatment of each hazardous constituent
subject to treatment is achieved:

(2) the use of a range of standards with a "ceiling" one order of magnitude above the
universal standard, but no broad-sweeping treatment requirement; or

(3) attainment of only a 90% treatment requirement irrespective of any universal
treatment standard, unless this treatment level would result in waste concentration
levels below the proposed LDR universal treatment standards in which case these levels
would apply instead.

EPA has suggested that any of these proposed approaches would encourage the use of
effective innovative (i.e., non-incineration) technologies.

If EPA elects to go forward with solely a technology-based approach for establishing
treatment standards, HWAC recommends that the best option for EPA to adopt would
be a modification to alternative (1) to allow the greatest flexibility in achieving these
standards. Under HWAC's proposal, the regulated community should have the option
of either attaining a 90 % treatment requirement or achieving a ceiling value one order
of magnitude above the universal treatment standards, provided that, in either case,
necessary risk reduction goals are met. This approach would provide reasonable
flexibility in selecting the appropriate technology for treatment, yet avoid the unduly
inflexible characteristics of EPA's proposed options and the environmental protection
concerns that might be associated with their use. Moreover, given current enforcement
sanctions. HWAC agrees with EPA that most generators of hazardous waste would not
mix prohibited hazardous waste with soils and, thus, does not believe that it would be

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necessary to impose any further safeguards to prevent this problem at this time."
(HWAC. CS2P-00020)'

Response: EPA appreciates the support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." Deferring a decision on soil treatment standards to the HWIR-Media
rulemaking process was consistent with the majority of comments on the LDR Phase 2
proposal.

EPA is finalizing the 90% capped by lOxUTS treatment standard in today's final rule. EPA
notes that 90% capped by lOxUTS is the treatment standard recommended by this commenter.

In addition. EPA is finalizing the approach to constituents subject to treatment proposed in the
LDR Phase 2 proposal and supported by this commenter. Under today's final rule, the soil
treatment standards will apply to all soil subject to land disposal restrictions and will require
treatment of all underlying hazardous constituents reasonably expected to be present in any
given soil volume which such constituents are found at initial concentrations that exceed
lOxUTS.

• "RETEC proposes that EPA incorporate a hazardous soil treatment standard that would
require treatment of 95 % of the bioavailable (measured as leachable) organic
contamination and 40% of the total organic contamination. We would propose that this
approach to establishing hazardous soil treatment standards be in addition to the
universal based standards in the proposed rule." (RETEC, CS2P-00026)

• "RETEC proposes that EPA adopt hazardous soil treatment standards that incorporate a
high percentage reduction in bioavailability as an option to utilizing approaches in the
proposed rule. The RETEC proposal would have the following advantages:

• complies with the requirements of 3004(m) to identify the best available
treatment technology.

• is fully protective of human health and the environment.
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• it would provide the regulated community flexibility in identifying the most
cost-effective manner to achieve the objectives of HSWA.

• the quantity of hazardous soil managed in incinerators is reduced, avoiding a
number of environmental impacts of concern to the public.

• provide the option for people to continue to use the universal treatment
standards approaches proposed by EPA." (RETEC, CS2P-00026)

"In prior discussion with EPA staff members concerning this approach, a number of
potential problems were cited with initial versions of the RETEC proposal. RETEC
has addressed these concerns and has proposed solutions that insure full compliance
with HSWA Section 3004(m)." (RETEC. CS2P-00026)

"Some may claim that the RETEC proposal would potentially leave a treated residual
that could pose a risk from direct ingestion. However the Agency has already dealt
with that issue with hazardous soil contaminated with metals. The metal standards are
based on TCLP extracts. Hazardous soil that meets the land disposal restriction limits
still must be managed in a fully permitted land disposal facility." (RETEC. CS2P-
00026)

"RETEC believes of each of the proposed approaches exceed the requirements of
Section 3004(m). In addition all of the proposed approaches will not achieve the
Agency's desire to provide the regulated community alternatives to incineration. This
will cause a misallocation of society's resources and a number of adverse
environmental impacts. (RETEC. CS2P-00026)

"In addition to our general concern over the numerical treatment standards. RETEC is
concerned that in many soil matrices bioremediation will plateau at a level less than
90% removal. However, for some hazardous soil matrices bioremediation will achieve
the "Ceiling" of one order of magnitude above the treatment standard.

This would result in the regulated community being confronted with the situation that
bioremediation will achieve the "Ceiling" EPA has identified but not achieved 90%
removal. In these cases, inappropriate technologies such as incineration would be
required. This would not achieve EPA's objective of using innovative technologies."
(RETEC, CS2P-00026)

"If the universal treatment standards and the "ceiling" are established to allow the
regulated community an option to incineration. RETEC believes that this is the best
option of the tree approaches proposed. However, as noted in Section 2 of these
comments, we believe an approach that incorporates bioavailability as measured in a
leachable extract would be a more cost effective means to compliance with RCRA

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section 3004(mj." (RETEC. CS2P-00026)

• "In many soil matrices bioremediation will achieve 99% removal of the bioavailable
material, but not achieve 90% removal of the total constituent analysis. For this
reason, this approach does not achieve EPA's objectives of providing innovative
technology options for the regulated community." (RETEC. CS2P-00026)

Response: All of these comments were submitted in support of the commenter's suggestion
that EPA base soil treatment standards, in part, on removal of a percentage of bioavailable
(rather than total) hazardous constituents. These comments are in support of biotreatment.
EPA is not persuaded that it is necessary to base soil treatment standards, in part, on removal
of a percentage of bioavailable (rather than total) hazardous constituents to support appropriate
use of bioremediation for soil treatment. In analysis of EPA's Soil Treatment Database, 150
of 165 data pairs (90%) treated by bioremediation were successfully treated to compliance with
the soil treatment standards.

On April 29, 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29,
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "It is unclear from the text of proposed rule 40 CFR 268.47(b) whether the three
alternatives outlined are options to be selected from by the generator or
treater/disposer, or whether EPA intends to select one alternative and revise the
provision to delete the others. Each approach has merit, and maximum flexibility
would be preferred."

Boeing suggests that generators be allowed to use either approach 2, proposed
268,47(b)(2) or approach 3, proposed 268.47(b)(3).

The application of standards for the constituents in the UTS table for hazardous soil.
especially soil which contains listed waste, may in many cases constitute much more
stringent standards than are presently required. In reality, the majority of industrial
sites are not similar to hazardous waste landfills and should not contain contamination
that is similar to and as diverse as multi source leachate. As stated in 58 FR 48134, for
listed waste "EPA has identified all the potential hazardous constituent that could be in

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the waste and specified those that must be treated." This same statement should be
applicable to soil which contains a listed hazardous waste. Therefore. The Boeing
Company believes that the only treatment standards that should be applied to listed
hazardous soil are for the specific constituents that EPA has identified for the particular
hazardous waste that is contained in the soil.

Two of the proposed alternative treatment standards use a "ceiling" of one order of
magnitude above the universal standard. The majority of universal treatment standards
for organics are based on incineration and are as a result very low. An order of
magnitude is not sufficient to provide significant relief especially considering the
additional costs of treating soil on-site or to use nonthermal off-site treatment. As a
result, a great deal of hazardous soil will continue to go to RCRA incinerators. EPA
has failed to recognize to treat soil on-site requires permitting and approval by local.
state and federal agencies. In addition, off-site commercial treatment facilities for
hazardous soils besides incinerators are rare, may not be suitable for a particular waste
or may be too far away, making transportation costs prohibitive. Boeing proposes a
treatment standard two orders of magnitude above UTS. this would allow necessary
flexibility for the generator." (Boeing, CS2P-00029) [Also See Chapter 27. A.]

Response: On April 29. 1996, in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

This commenter specifically suggests a soil treatment standard of two orders of magnitude
above the UST, indicating that such a standard is necessary to ensure that contaminated soil
can be reliably treated using non-combustion technologies. As discussed in detail in the
preamble to today's final rule and in the relevant Background Documents, the Agency
disagrees. The Agency's analysis shows that the soil treatment standards promulgated today
(90% capped by lOxUTS) can routinely be achieved using non-combustion technologies. In
situations where a well-designed, well-operated application of one of the model (non-
combustion) technologies on which today's treatment standards are based failed to achieve the
standard, a generator would be eligible for a treatment variance, based on a finding that the
treatment standard was unachieveable in his/her waste. See 40 CFR 268.44(h).

Regarding constituents subject to treatment, the Agency carefully considered the approach

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proposed by this commenter (limiting treatment to BDAT constituets for soil contaminated by
listed hazardous waste). After consideration of other comments, however, the Agency was
pursuaded that, since contamianted soil may be contaminated by a wide range of hazardous
constituents, the Chemical Waste opinion requires treatment of al underlying hazardous
constituents. See Chemical Waste Management v. USEPA. 976 F.2d at 16 - 18 (D.C. Cir.
1992). This issue was discussed in detail in the preamble to today's final rule.

• "ACCCI commends EPA for recognizing that treatment of soil containing listed wastes
presents a completely different regulatory problem from treatment of the wastes
themselves in isolation.

To avoid having to incinerate contaminated soils to meet the RCRA treatment standards
for the underlying wastes, and to allow the use of innovative treatment methods. EPA
has proposed more lenient treatment standards for soils mixed with hazardous wastes
than for the hazardous wastes in isolation. (The test for distinguishing between the two
is whether the mixture is composed predominantly of soil, and whether the waste can
be separated from the soil by "simple mechanical removal processes" like skimming or
sieving. 58 Fed. Reg. 48123).

Those more lenient standards start with the treatment standard for the waste itself - for
example, 10 ppm for benzene - and then adjust it upwards. EPA asks for comment on
three separate treatment alternatives for soils contaminated with organic materials:

• 90% of the hazardous waste "constituents" must be removed from the
soil and the final residue levels in the soil cannot be more than one order
of magnitude higher than is allowed when treating the waste in its pure
form. (However, 90% treatment would not be required to the extent it
produced residue levels below those required for the waste itself.)

• Only the second half of the first approach would apply. There would be
no percentage removal requirement, but the final residue levels in the
soil could not be more than one order of magnitude higher than is
allowed when treating the waste in its pure form.

• The third alternative is the converse of the second. There would be no
"cap," but 90% removal would be required unless that would exceed the
treatment levels for the waste itself.

ACCCI favors the second of these approaches, which would in effect "cap" the levels of
contamination allowed in soils. An approach that sets a single acceptable treatment
level, and avoids "percent reduction" requirements, is most likely to result in cost-
effective cleanups. Under a "percent reduction" approach, 90% reduction could be
required for soils that were so slightly contaminated that they presented little

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environmental risk. Indeed, under a percent reduction approach, the contamination
levels in soil that had been through the required treatment would vary widely from one
soil to the next, depending only on the starting levels of contamination. An approach
like percent reduction that automatically leads to wasted resources and unequal
treatment in site clean-ups cannot be defended.

EPA's own data show that adoption of a ceiling plus a 90% treatment requirement only
increases by 4% (from 65% to 69%) the amount of contaminated soil for which non-
incineration technology can be used, while a "ceiling" alone allows 91 % use of non-
incineration technology. 58 Fed. Reg. 48,125-26. Clearly only the second approach
carries out EPA's intention to reduce the need for soil incineration.

An approach that "caps" the amount of contaminant allowed in soils directly addresses
the potential of that soil to contribute to environmental risk. This represents a far more
effective approach than "percent reduction." In those isolated cases where the "cap"
levels might not be adequate, other legal provisions provide more than enough
authority for EPA to take action targeted at environmental risk directly. This is far
. more efficient and just approach than requiring treatment whether or not there is an
environmental need for it." (ACCCI. CS2P-00031)

Response: EPA appreciates the support for tailored soil treatment standards.

On April 29, 1996, in the HWIR-Media proposal, EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

EPA notes that the option being finalized today, 90% capped by lOxUTS, incorporates the
recommendation of this commenter (use of the lOxUTS standard).

• "El Paso is a major interstate gas transmission company with operations in Texas.
Oklahoma, Arizona, New Mexico, and Colorado. El Paso requests clarification of the
treatment standards to be applicable to hazardous soils under this proposed rulemaking.
The preamble of the proposed rulemaking provides contradictory information regarding
treatment standards for hazardous soils
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'Section II E ("Summary of Proposed Rule/Soil Contaminated with Hazardous Waste )
of the preamble of this proposed rulemaking states that "In order to comply with the
LDRs. hazardous soil would have to be treated either to meet the standards for the
hazardous waste contaminating the soil, or the alternative treatment standards proposed
in this notice.' This statement is found in the third column of page 48096 of the
preamble. El Paso believes this statement would provide the flexibility to treat
hazardous soils to either the treatment standards listed in the table "Treatment Standards
for Hazardous Wastes" starting on page 48160 of this proposed rule or the soil
treatment standards proposed by this rulemaking.

Section Vn G ("Treatment Standards for Hazardous Soils/Relationship to Other
Regulations and Programs") of the preamble of this proposed rulemaking states "Thus.
when today's proposed soil treatment standards are promulgated, hazardous soil will
become subject to those standards in lieu of the treatment standards for the RCRA
wastes contaminating the soil." This statement is found in the first column of page
48131 of the preamble. El Paso believes this statement limits treatment of hazardous
soils only to the soil treatment standards proposed by this rulemaking in direct
contradiction to the statement in Section II E noted in the above paragraph." (El Paso
Natural Gas Company, CS2P-00037)

• "Second. El Paso recommends that EPA rewrite paragraph 268.47 of the rule to allow
for the option of treating hazardous soil using the hazardous waste treatment standards.
El Paso believes that paragraph 268.47 as written in this proposed rule would only
allow treating hazardous soil to the soil treatment standards proposed by this
rulemaking." (El Paso Natural Gas Company, CS2P-00037)

Response: EPA agrees that generators should have the option of treating contaminated soil
subject to LDRs to either, the soil treatment standards or the treatment standards promulgated
for the contaminating waste. This issue was clarified in today's final regulations.

• "Exxon believes that the proposed changes to the Land Disposal Restrictions (LDR)
program will have a significant new cost impact on the management of existing
hazardous wastes. The proposed treatment standards for newly identified and listed
hazardous wastes and soils also appear overly stringent and may, in many cases, go
well beyond the "minimize threat" statutory requirement in setting LDR standards."
(Exxon Company, U.S.A., CS2P-00041)

Response: On April 29, 1996, in the HWTR-Media proposal, EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.
-------
The basis for EPA's April 29. 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

As discussed in detail in the preamble to today's proposal. EPA does not. at this time, believe that
the technology-based soil treatment standards are overly stringent. The Agency notes that, in
situations were treatment to the technology-based standard would result in constituent
concentrations lower than those necessary to minimize threats, the Agency has provided for a site-
specific, risk-based treatment variance.

• "Of the three proposed approaches for establishing treatment standards for hazardous
soils. BFI believes that the option which requires treatment to a "range of standards with a
ceiling one order of magnitude above the universal standard" provides the best
combination of treatment and practicality. Establishing a range of standards with a
"ceiling" one order of magnitude above the universal standard independent from a
percentage treatment basis is preferable due to the complications that arise when
calculating a percentage level. The 90 percent treatment requirements in the first and third
options create the possibility for confusion when reviewing multiple data points. Low
levels of contamination in soils, if addressed by the first option will be cleaned-up less than
ceiling levels, negating the intent to recognize soils as a different regulatory concern since
UTS will be met. A set ceiling level will clearly establish the standard and ease
compliance decisions by industry while making the program easier to administer for the
• ' Agency." (BFI, CS2P-00046)

Response: On April 29. 1996, in the HWIR-Media proposal, EPA proposed a revised soil
treatment standard of 90% reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

EPA notes that the approach promulgated today incorporates this commenter suggestion
(capping treatment at lOxUTS).

• "EPA is proposing a number of initiatives for managing contaminated soils. Laidlaw
believes that the option that affords the greatest level of protection is to require soil to

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be treated to the universal treatment standard (UTS) plus 90 percent treatment of
hazardous constituents. The UTS standard is required to insure that high levels of
hazardous constituents are not land disposed. Laidlaw agrees with EPA's proposal to
allow a multiple of up to 10 times the UTS standard, if a treatment variance procedure
is established that demonstrates that the alternative standard is justified. The
justification would have to be based on the current criteria contained in 268.44, namely
that "the physical and chemical properties of the waste differs significantly from waste
analyzed in developing the treatment standard." Laidlaw is concerned, however, with
the fact that management of contaminated soils is being addressed under several
different auspices within EPA. including HWIR and Superfund. each with its own
timetable and agenda. In order not to confuse the regulated community, it is
imperative that the final rule which results from this proposal is consistent with
approaches taken by HWIR and Superfund." (Laidlaw Environmental Services Inc..
CS2P-00050)

Response: In response to comments such as these. EPA deferred a final decision on soil
treatment standards to the HWIR-Media rulemaking process. On April 29. 1996, in the
HWIR-Media proposal, EPA proposed a revised soil treatment standard of 90% reduction in
constituent concentrations or ten times the universal treatment standard, whichever is higher.
61 FR 18805-18813. This is commonly referred to as "90% capped by lOxUTS." EPA is
finalizing the 90% capped by lOxUTS treatment standard in today's final rule.

EPA is not persuaded that a treatment variance is necessary to take advantage of the lOxUTS
component of the soil treatment standards. As discussed in detail in the preamble to today's
final rule, the Agency has found that the soil treatment standards adequately minimize threats
within the meaning of RCRA Section 3004(m) considering the distinct treatability issues posed
by contaminated soil and the distinct policy issues posed by the remediation context under
which most contaminated soil is managed. (In addition, for soils contaminated with metals.
EPA believes on a purely technical basis that higher standards are needed if contaminated soils
are to have a standard which is consistently achievable.)

• "The EPA is proposing to apply different treatment standards to soils that are applied to
listed wastes. As discussed in Comment Number 5, the performance of the HT-6
process is achieved irrespective of whether the waste is in a soil or sludge/liquid
matrix. Therefore, modified treatment standards for soil are neither justifiable nor
sufficiently protective of human health and the environment. STS urges EPA to
develop LDR standards for soils as the EPA has done so for listed wastes, i.e. establish
-------
BDAT in accordance with the established procedures." (Seaview Thermal Systems.
CS2P-00058)

Response: EPA has long believed that the distinct treatability issues posed by contaminated
soils in addition to the distinct policy issues posed by the remedial context under which most
contaminated soil is managed warrant tailored soil treatment standards. This issue was
discussed in detail in the preamble to the LDR Phase 2 proposal, the HWIR-Media proposal.
and numerous other EPA proposals and guidance documents. See, e.g., sources cited in the
HWIR-Media proposal.

On April 29. 1996. in the HWIR-Media proposal, EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

• "The HWTC supports the issuance of these treatment standards, and generally supports
the proposed levels.

The HWTC supports the alternative of UTS and a requirement of 90 % treatment, but
with a proviso to allow up to UTS x 10. The variance would be administered at the
local level, such as the on-scene coordinator and would need to demonstrate that UTS x
1 cannot be met with a well-designed and well-operated BDAT unit, but that UTS x 10
can consistently be met." (HWTC. CS2P-00060)

• "EPA presents three different options for setting BDAT treatment standards for
contaminated soils. The option that affords the greatest level of protection is to require
that soil be treated to the universal treatment standards (UTS) plus 90% treatment of
hazardous constituents. The UTS standard is needed to ensure the high levels of
hazardous constituents are not land disposed.

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justifies the alternative 10 times UTS standard on the basis of criteria in 268.44.
namely that "the physical and chemical properties of the waste differs significantly from
waste analyzed in developing the treatment standards." The criteria should include an
evaluation of the soil characteristics that prevent it from being treated to the UTS
standard. Without the need to go through EPA Washington Headquarters, this variance
requirement can be justified in an efficient time frame, and not significantly delay
remediation.

To demonstrate that a treatment variance is warranted, the petitioner should be required
to provide a test of a well-designed and well-operated BDAT unit applied to the
contaminated soil. Data should be provided to demonstrated that the BDAT unit was
well-designed and well-operated in accordance with its relevant permit and regulatory
requirements. A minimum of eight representative samples of the treated soil should be
analyzed, demonstrating that the standard of UTS plus 90% treatment of hazardous
constituents cannot be met, but that UTS x 10 can consistently be met. The 90%
reduction criteria is only sufficient if treatment already achieves 10 times the UTS.

A firm treatability variance procedure is needed since often the performance of
innovative technologies can be improved by simply adding more steps to the process of
increasing residence time. This is true of soil washing, chemical extraction and
thermal desorption technologies (see attached ENSR Report). If improved treatment
results can be achieved by optimizing conditions, no variance or 10 x UTS is justified.
The remedial contractor must be held accountable to prove that a level of 10 x UTS is
justified.

Finally, spill residues must be subject to the same BDAT standards that apply to
process waste, since sham spilling of waste could be performed in order to justify
relaxed treatment requirements." (Hazardous Waste Treatment Council. CS2P-00060)

Response: On April 29, 1996. in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the 90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

EPA is not persuaded that a treatment variance should be necessary in order to take advantage
of the lOxUTS component of the soil treatment standards. As discussed in detail in the

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preamble to today's proposal. EPA has found that the soil treatment standards minimize threats
within the meaning of RCRA Section 3004(mj considering the distinct treatability issues posed
by contaminated soil and the distinct policy issues raised by the remediation context under
which most contaminated soil is managed.

Regarding spill residues, the Agency agrees that any intentional spilling (or mixing) of
hazardous waste with soil for the purposes of circumventing applicable LDR treatment
standards, is already impermissible dilution, and subjects the violator to significant fines and
penalties, as well as requiring treatment to the standard for the waste that is deliberately mixed
for the impermissible purpose (see 268.40 (c)). However, the Agency cautions that not every
spill is impermissible dilution. Indeed, the great majority of them are not, since the activity is
inadvertent, and essentially unavoidable. Since spills comprise the typical means by which soil
becomes contaminated, any general assertion that spills are invariably a form of impermissible
dilution would essentially mean that there are no separate treatment standards for contaminated
soils. Such a result would defeat the needed result of this rulemaking: to provide distinct
standards for soils that reflect both the need to treat contaminated soils and to remediate
contaminated sites. Thus, only the limited class of intentional mixing of soil with non-soil for
the purpose of avoiding LDR treatment standards would be impermissible dilution. This is
consistent with the approach the Agency took to contamination of debris. See 57 FR at 37224
(August 18. 1992).

• "EPA presents three different options for setting BDAT treatment standards for
contaminated soils. The option that affords the greatest level of protection is to require
that soil be treated to the universal treatment standards (UTS) plus 90 % treatment of
hazardous constituents. The UTS standard is needed to ensure that high levels of
hazardous constituents are not land disposed.

The HWTC agrees with EPA's proposal to allow a multiple of 10 times the UTS
standards, but only if a treatment variance procedure is established that demonstrates
that the alternative standard is justified. The treatment variance procedure should be
different from that in place today, which requires petitioning of Washington
Headquarters. Instead, a variance protocol should be developed which allows the
petitioner to work with the on-scene coordinator, or state official, and objectively
justifies the alternative 10 times UTS standard on the basis of criteria in 268.44,
namely that "the physical and chemical properties of the waste differs significantly from
waste analyzed in developing the treatment standards." The criteria should include an
evaluation of the soil characteristics that prevent it from being treated to the UTS
standard. Without the need to go through EPA Washington Headquarters, this variance
requirement can be justified in an efficient time frame, and not significantly delay
remediation.

To demonstrate that a treatment variance is warranted, the petitioner should be required
to provide a test of a well-designed and well-operated BDAT unit applied to the

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contaminated soil. Data should be provided to demonstrate that the BDAT unit was
well-designed and well-operated in accordance with its relevant permit and regulatory
requirements. A minimum of eight representative samples of the treated soil should be
analyzed, demonstrating that the standard of UTS plus 90% treatment of hazardous
constituents cannot be met, but that UTS x 10 can consistently be met. The 90%
reduction criteria is only sufficient if treatment already achieves 10 times the UTS.

A firm treatability variance procedure is needed since often the performance of
innovative technologies can be improved by simply adding more steps to the process or
increasing residence time. This is true of soil washing, chemical extraction and
thermal desorption technologies (see attached ENSR Report). If improved treatment
results can be achieved by optimizing conditions, no variance or 10X UTS is justified.
The remedial contractor must be held accountable to prove that a level of 10X UTS is
justified..

• "EPA should not rely on the UTS as ''baseline" treatment standards for contaminated
media. The UTS are derived from treatability data for particular process wastes, and
do not necessarily reflect the levels achievable with hazardous media. Moreover, as
discussed above, EPA should examine valid soil treatability data, including alternative
and innovative technologies, and cap the resultant technology-based standards with an
analysis of the risks presented by hazardous media. This is far more preferable than
mechanically transferring treatment data from process wastes - with some son of
"fudge factor" - to the very different world of remedial wastes. If EPA has insufficient
data to set standards this way, then perhaps it can continue to rely on the levels in
CERCLA LDR Guidance 6A levels, or it could specify treatment by innovative
technologies wherein analysis of the treated soil would be unnecessary, an approach
similar to the one the Agency followed with contaminated debris. Just as Subtitle C
should not apply to hazardous media, treatability data for process wastes should not be
blindly used to establish treatment standards for hazardous soils.

Furthermore, EPA's "order of magnitude" approach will not encourage the use of
innovative technologies, as EPA desires, because it appears that many of these
technologies will not be able to achieve the proposed standards in a cost-effective
manner. The studies cited by EPA are, for the most part, pilot or bench scale studies.
and these treatment technologies have not been applied to treat large volumes of
hazardous media in full-scale trials." (General Electric Company, CS2P-00076)

Response: On April 29, 1996, in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90% reduction in constituent concentrations or ten times the universal

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treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

EPA notes that data examined by the Agency shows that contaminated soils can routinely be
treated by non-combustion technologies to meet the soil treatment standards promulgated
today. This issue is discussed in detail in the preamble to today's final rule. Furthermore, the
Agency has. as this commenter suggested provided a site-specific, risk-based treatment
variance to all the technology-based soil treatment standards to be capped, on a site-specific
basis, if higher concentrations are shown to minimize short- and long-term threats to human
health and the environment.

• "SOCMA applauds EPA's understanding of the compelling need to develop LDRs for
hazardous soil in order to alleviate the problems caused by the current requirement to
treat soils to meet the LDRs for listed wastes "contained-in" those soils. On the other
hand, the current proposal builds upon the technology-based universal standards and
thus continues to build upon the inconsistencies noted above.

While SOCMA expects to address this issue in greater detail in light of further
developments under HWIR, at this stage SOCMA urges the Agency to pursue the
development of appropriate risk-based standards for soil, both with respect to LDRs
and exemption levels. At present, significant resources are devoted to efforts to meet
unrealistic treatment standards which are not based on risk.

SOCMA notes that EPA did an excellent job in the proposed July 27. 1990, corrective
action rule when developing risk-based standards for many of the same chemicals listed
in this proposal. The procedures used to develop the levels in the corrective action
proposal have been reviewed by EPA's Science Advisory Board (SAB) which found
them to be well researched and documented. The result was the establishment of
realistic risk-based goals. The difference between the corrective action levels and the
proposed universal standards is due to the differing methods used to establish the
levels.

Again. SOCMA believes that risk-based levels provide the greatest overall protection of
human health and the environment in the most cost effective manner, while technology-
based levels result in requiring treatment of contaminated materials to meet levels that
have no correlation with risk. Neither SOCMA member companies nor the economy at

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large can bear this misallocation of resources. This problem can be resolved by
coordinating both LDR and HWIR exemption levels and by relying upon realistic
assessments of risk." (Synthetic Organic Chemical Manufacturers, CS2P-00085)

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

Regarding the suggestion that EPA develop LDR treatment standards for contaminated soil
based on risk, EPA agrees that generally risk-based LDR treatment standards would be
preferable to technology-based standards. However, the Agency has. to date, been unable to
develop risk-based standards that could be applied at a national level, largely because of the
wide variety of site-specific physical and chemical compositions encountered in the field and
the uncertainties involved in evaluating long-term threats to humans and the environment
prosed by land disposal. In order to reduce the likelihood that technology-based treatment
standards will result in treatment beyond the point at which threats are minimized, the Agency
has provided an opportunity for a site-specific, risk based treatment variance which could be
used to cap the technology-based standards. The site-specific risk-based treatment variance is
discussed in detail in the preamble to today's final rule.

• "Of the three Technology-Based Treatment Options presented, we strongly favor
Option #1 ... "a range of standard with a ceiling one order of magnitude greater than
the Universal Treatment Standard provided 90% treatment of each constituent subject
to treatment is achieved."

We strongly believe, however, that with the availability of an economical process
capable of reducing the retained mercury content in treated soils to less than 2 ppm
regardless of the type of soil being treated or the form of the contained mercury, that
the TCLP-based standard in Option 1 does not reflect the available technology and
propose that the standard should be lowered further and based upon a residual
contained mercury content after treatment of 2 ppm or less. This will (a) assure
maximum mercury removal at each contaminated site, (b) prevent the accumulation of
mercury-containing wastes that are classified as nonhazardous but which still contain
leachable quantities of mercury, and (c) put an end to the liability inherent in disposal
of treated wastes with residual mercury contents greater than 2 ppm." (Mercury

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Recovery Services CS2P-00086)

Response: On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90% reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

EPA is not, at this time, persuaded that a special standard is needed for mercury contaminated
soils, since the Agency has found that the 90% capped by lOxUTS standard minimizes threats
to human health and the environment considering the distinct treatability issues posed by
contaminated soil and the distinct policy issues posed by the remediation context under which
most contaminated soil is managed.

• "The proposed rule states that if the final exemption levels are at or above the LDR
treatment standards and represented minimized threat levels, the treatment standards
would be capped at the final exemption level. The proposed rule does not explain what
procedure will be used to decide if the exemption level also represents the minimized
threat level. Will authorized States be able to make this decision? If so, how will
national consistency be maintained?" (Association of State and Territorial Solid Waste
Management Official, CS2P-00091)

^Response: EPA is not, at this time, taking action on the portions of the LDR Phase 2
proposal which would have codified the contained-in policy. If. in the future. EPA takes such
action, it will respond to comments on the relationship of contained-in determination to LDR
treatment standards, as necessary, at that time.

• "U.S. EPA is proposing three treatment standard options for soil. The proposed
treatment standards for soil would be ten times the universal treatment standard or
ninety percent reduction in the concentration of the constituent or a combination of both
of these. These requirements seem very arbitrary. How can the U.S. EPA show that
these values represent the "minimized threat level"? The treatment standards for soil
should be based on health-based risk values.

Two of the options for treatment standards for soil require that there be a 90%
reduction in the constituent by treating the waste. The proposed rule suggestions that
the generator document the 90% treatment of the constituent by measuring the initial

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concentration and the concentration of the constituent. This will present an
enforcement problem because constituent concentrations will vary over the area being
remediated. As written, it would seem that the generator would need to demonstrate
that 90% reduction occurred to the sample with the lowest concentration. It may be
more appropriate to require the 90 % reduction on an average concentration of the area
being remediated rather than for each sample." (Association of State and Territorial
Solid Waste Management Official. CS2P-00091)

Response: On April 29, 1996, in the HWIR-Media proposal EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

As discussed in detail in the preamble to today's final rule, EPA has found that the soil
treatment standards minimize threats within the meaning of RCRA Section 3004(m)
considering the distinct treatability issues posed by soil and the distinct policy issues posed by
the remediation context under which most contaminated soil is managed. The standards also
fall within the zone of reasonable values the Agency could have selected as reflecting
performance of treatment technologies (other than combustion).

Regarding measuring compliance with the 90% reduction standard, the Agency has clarified in
the preamble to today's final rule that the reduction should be measures after characterizing
any given volume of soil using normal site characterization techniques. It is not necessary to
measure the 90% reduction from the sample value with the lowest constituent concentrations.

• "One of the proposed criteria is that the soil not exceed a 10"4 to 10"6 risk level. It
should be specified whether this risk is determined considering residential or industrial
use. A provision should be included that if the contained-in determination is made
considering industrial use, then the soil would need to be reevaluated for the purposes
of further hazardous waste management if the land use changes. The proposed rule is
not clear how interstate regulation of wastes will be handled. For on-site disposal, .
maintaining flexibility for the State overseeing the remediation is very important and
establishing specific criteria is less important.

Currently, and according to the procedures on page 48127-48128, the Regional
Administrator or an authorized State determines whether hazardous waste is contained

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in soil by use of characteristics tests and site-specific risk-based assessment. Once a
determination is made that hazardous waste is not contained in the soil. Subtitle C no
longer applies to the soil, and it could even be land disposed elsewhere in a non-LDR
landfill. Some of the risk-based levels which are now used, particularly at remote
locations, are substantially higher than the technology-based LDR soil treatment levels
which would allow treated soil to go to a MTR landfill. Therefore, if soil which is to
be placed in a specific site is not subject to LDR because of a site-specific assessment.
perhaps the site should have a deed restriction to prevent soil which is above the LDR
soil-treatment standard from being removed from the site unless it goes to an MTR
landfill." (Association of State and Territorial Solid Waste Management Officials,
CS2P-00091)

Response: EPA is not, at this time, taking action on the portion of the LDR Phase 2 proposal
which would have codified the so called "contained-in" policy. Although the policy is not
codified. EPA regions and authorized states may continue to implement the contained-in
policy, as appropriate, on a site-specific basis using Agency guidance. EPA's latest guidance
on implementation of the contained-in policy is discussed in detail in the preamble to today's
final rule.

If. in the future. EPA decides to take action to codify the contained-in policy, it will respond
to these comments, as necessary, at that time.

EPA notes that the 10(-4) to 10(-6) risk range is used in today's final rule to define the range
of appropriate levels for alternative, risk-based, LDR treatment standards for soil, when such
standards are approved through a site-specific, risk-based minimize threat variance. EPA has
clarified that the 10(-4) to 10(-6) risk levels should be calculated using a reasonable maximum
exposure scenario. This exposure scenario could be residential or industrial, depending on
site-specific circumstances.

• "What is the basis for authorizing standards one order of magnitude (or more if only
90% treatment approach is chosen) above the universal standards for soil treatment?
Who determines whether and which of the alternative treatment standards should apply
for soil treatment?" (ASTSWMO, CS2P-00091)

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the remediation context under which most contaminated soil is managed.

The basis for EPA's April.29. 1996 proposed treatment standards is set out in the April 29,
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

EPA notes that, in their comments on the HWIR-Media proposal, the Association of State and
Territorial Solid Waste Management Officials strongly suggested that EPA exempt all
contaminated soil from a duty to comply with any RCRA requirement provided the soil was
managed as part of a state overseen remedial action. Given these comments, the Agency can
only assume that ASTSWMO's concerns about the protectiveness of the soil treatment
standards have been resolved.

• "The Universal Treatment Standards also are an improvement which makes the LDR
system more rational and should stimulate innovations in waste management."
(Association of State and Territorial Solid Waste Management Officials, CS2P-00091)

Response: The Agency appreciates this support of the Universal Treatment Standards.

• "The Agency has proposed three alternatives for developing technology-based treatment
standards for hazardous soils:

a. A range of standards with a "ceiling" one order of magnitude above the
Universal Standard, provided 90% treatment of each constituent is achieved.
b. A range of standards with a "ceiling" one order of magnitude above the
universal standards: the efficiency (%) of treatment required would be that
sufficient to achieve the "ceiling" standard (or less) for each constituent.
c. Achieving 90% treatment for each constituent or by achieving treatment to the
universal treatment standard.

GM sees merit in the approach of a "ceiling" one order of magnitude above the
universal standards to attempt to optimize technology and reduce hazardous constituents
to levels at which environmental efficiencies threats are appropriately minimized.
However, treatment efficiencies of 90% or greater are not always justified, and in
many instances would force treaters to use incineration as the only possible treatment
method.

GM supports a modification of Alternative 3: i.e., Achieving 90% treatment for each
constituent or the "ceiling" standard set at tone order of magnitude greater than the
universal standard, whichever is greater. This alternative would be sufficiently
protective of human health and the environment, and would also encourage the

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development of new and innovative technologies to provide safer, more-cost-effective.
and more publicly accepted methods (i.e.. incineration has a very bad public image (for
treating remediation-related wastes. (General Motors. CS2P-00095)

Response: EPA appreciates this support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

EPA notes that this is consistent with the approach recommended by the commenter.

• "We favor Option #2 (a range of standards with a "ceiling" one order of magnitude
above the UTS. However 90% reduction is not required) as the best approach to
achieving flexibility in removing and recovering lead from soils while minimizing
danger to the environment." (PMET-00096)

EPA notes that this approach is consistent with the recommendation of the commenter. in that
treatment is only required to lOxUTS (although treatment to 90% is also allowed, even if it
yields constituent concentrations greater than lOxUTS).

• "We believe the UTS proposal to be an unnecessary extension of the Land Disposal
Restriction (LDR) treatment standards previously developed that will cause waste

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generators and TSD facilities significant compliance costs. This belief is based on our
experience as a treater/disposer of metal-bearing wastes and hazardous soils and our
understanding of the process EPA followed in establishing the waste-specific treatment
standards currently in place

EPA is proposing to establish a set of treatment standards based on the UTS for
hazardous soils2. The need for soil LDR standards is based on the perception that soils
are often more difficult to treat than wastes and that the BDAT treatment technologies
used as the basis for the waste-specific standards may not be able to achieve the
standards in soils contaminated with those wastes. Three different sets of standards are
proposed, all of which are based to some extent on the UTS. Of these, we favor the
one that allows land disposal provided the soil constituents are within one order of
magnitude of the concentrations listed in the UTS table. However, for the same
reasons that are itemized above for the UTS proposal, we do not support the use of the
UTS as the basis for determining when hazardous soils may be land disposed.
Presuming that soils are more difficult to treat than the wastes that contaminate them.
we would propose a treatment standard established at some reasonable multiplier above
the waste-specific standard." (Mill Service Inc.. CS2P-00098)

Response: The universal treatment standards are not the subject of today's rulemaking.

• "Of the three approaches to hazardous soils, Heritage prefers the universal treatment
standard plus one order of magnitude, without any specified percentage efficiency
treatment requirement." (Heritage Environmental Services Inc., CS2P-00103)

EPA notes that this approach is consistent with the commenter's recommendation in that
treatment will not be required to below lOxUTS.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "The Bureau supports the Agency's commitment to the increased use of innovative
technologies however, the requirement that untreated contaminated soil be treated to
within one order of magnitude of the universal standard, provided a 90% reduction in

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the constituent concentration occurs, will result in untreated low level contaminated soil
receiving treatment to a lower concentration (near the universal standard) than highly
contaminated untreated soil. Additionally, the 90% reduction requirement may not
reduce highly contaminated waste to levels at which threats are minimized. One
significant omission from the Docket is the assurance that the proposed one order of
environmental health threat to an acceptable level. One suggested approach to
providing that assurance would be the comparison of health-based concentrations to the
proposed "range" for each constituent.

The Bureau agrees that this option would increase the number and type of innovative
technologies capable of achieving the treatment standards and would simplify
compliance with rule. This option may have a significant drawback, in that, untreated.
low level contaminated soils may have high enough total concentrations to fail TCLP.
yet low enough concentrations that the contaminated soil falls within the one order of
magnitude "range". The results may be the avoidance of any treatment requirements
and the disposal of hazardous waste in a manner inconsistent with the regulations (i.e..
land disposal of hazardous waste.

Again, the Bureau supports the Agency's commitment to the increased use of
innovative technologies, however, the 90% reduction requirement may not reduce
highly contaminated waste to levels at which the threat to human health and the
environment are minimized to an acceptable degree. Also, this option may result in
treated soils which would fail TCLP but due to achievement of the 90% reduction may
be disposed of in a manner inconsistent with the hazardous waste management
regulations." (State Of New Mexico Environment Department, CS2P-00108)

Response: The Agency appreciates this support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

As discussed in detail in the preamble to today's final rule. EPA has found that the 90%
capped by lOxUTS treatment standards minimize threats as required by RCRA Section
3004(m) considering the distinct treatability issues posed by contaminated soil and the distinct

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policy issues raised by the remediation context under which most contaminated soil is
managed. The Agency notes that, in the case raised by the commenter. of hazardous
contaminated soil which was treated to today's soil treatment standards but. nonetheless.
continued to fail the toxicity characteristic leaching procedure test, disposal of that soil in a
RCRA Subtitle C unit would be required.

• "I believe that a technology based treatment standard may become a "loophole" for
individuals who are not committed to minimizing the impact to the environment or to
the public from their contaminated soil.

However, presenting "achievable limits" as the treatment standards is very encouraging.
This concept allows generators or site owners to select from more than one technology
to treat their soil and should encourage treatment." (Southwest Soil Remediation.
CS2P-00109)

Response: EPA appreciates this support for tailored soil treatment standards. As discussed in
detail in the preamble to today's final rule, technology-based treatment standards, such as
those promulgated today, have been upheld as a permissible reading of the "minimize threat"
requirement of RCRA Section 3004(m).

• "The proposed treatment methodologies present a novel approach to regulations.
However, my main concern is will these levels achieve the required environmental and
public protection to keep RP's from being sued in the future. RP's and contractors
want a definable treatment level that is:

• Achievable
• Provides adequate protection to the environment and the public
(Achieves TCLP)
• Eliminates the need to dispose of the treated soil as a hazardous (RCRA.
Subtitle C or D) waste, so that the soil can be used as backfill or ground
cover. This may require a stepped treatment level depending on if the
soil is used in an industrial or residential area.

Thermal desorption is capable of remediating soils containing high contaminant
concentrations. Incineration is not always required.

Of the three treatment standards, the 90% treatment level is the least acceptable from
an public safety and environmental protection point of view. Merely removing 90% of
the contaminant does not take into consideration how toxic the contaminant is or how
much is there. For example. If 10,000 Ibs of diesel fuel are spilled onto 10 tons of soil
(333.000 ppm or 33% diesel), removing 90% of the diesel leaves 33,000 ppm in the
soil (3%), which is much higher than most contaminant levels at UST sites (except for
directly below a leak).

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Of the remaining two scenarios, scenario #2 is the least confusing and easiest to
confirm. By setting the treatment standard at 10 times above the universal standard
provides a fixed number that must be achieved. This should reduce the potential for
fraud, and allows lightly contaminated soils to be treated to a lesser extent.

Scenario one (to 10 times universal standard, given a 90% min. removal or to the
universal standard: is very confusing, especially when treating lightly contaminated
soils. What happens when you have 76 ppm for PCP (universal level = 7.4 ppm)?
Must it be reduced by 90% to 7.5 ppm? What about if the concentration was at 73
ppm, must it be reduced to 7.4 ppm (89.9% removal).

These illustrations present arguments that either RP's, contractors or zealous
environmentalists may present to force more or less treatment.

The treatment standard should be clearly defined, and soils containing concentrations
lower than this value should not be classified as hazardous wastes whether they were
originally lightly contaminated or treated soil. Too many variations will increase the
legal battles over what the soil treatment requirements are. I believe that the overall
goal of these regulations is to simplify the remediation of contaminated soils while
protecting human health and improve environmental quality." (Southwest Soil
Remediation, CS2P-00109) [Also see Chapter 27.A.]

As discussed in detail in the preamble to today's final rule, EPA has found that the soil
treatment standards promulgated today "minimize threats" within the meaning of RCRA
Section 3004(m) considering the distinct treatability issues associated with contaminated soil
and the distinct policy issues posed by the remediation context under which most contaminated
soil is managed. In the unusual instance that clear risks remained after achieving the treatment
standard, the Agency or authorized States retain authority under other remedial provisions
(RCRA corrective action, CERCLA, for example) to insure that needed treatment occurs.

Regarding the disposal of treated soil, such soil would, if it contained hazardous waste or
exhibited a characteristic of hazardous waste, remain subject to RCRA Subtitle C regulations
and require disposal in a RCRA Subtitle C facility.

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Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

Finally, EPA notes and agrees with the commenter's statement that thermal desorbtion is
capable of treating soils with high concentrations of organics and that incineration would not
ne necessary.

• "As stated above, any treatment standards should be capped with risk based endpoints.
This is especially true for contaminated soil, which is a complex and difficult matrix to
treat. By basing treatment standards on the results of incineration, or even results of
incineration multiplied by ten, EPA will not significantly reduce the amount of soil that
will be incinerated, or increase the amount of soil that will be treated by alternative
technologies. More importantly, the proposed UTS levels are often far below
"minimize threat" levels and therefore result in unnecessary treatment. MMA and
EMA can again be used to demonstrate that the proposed UTS* 10 treatment levels are
far too low, and the proposed UTS * 10 modified by a 90% treatment requirement

option merely exacerbates the problem when it results in treatment to levels below even
the UTS.

The proposed UTS level for MMA and EMA in non waste waters is 160 mg/kg, and
for all three proposed hazardous soil options, the highest UTS limit is no more that
1600mg/kg of MMA or EMA. As stated above, the currently published EPA
Reference Dose for MMA is 5.3 mg/day and for EMA is 6.0 mg/day. To calculate
potential human intake of contaminated soil, the EPA typically assumes ingestion of
200 mg of soil per day.15 At this rate, intake of 1600 mg/kg MMA-contaminated soil
results in only 0.32 mg/day for a 70 kg adult, approximately 17 times greater than the
dose derived from the UTS limit of 1600 mg/kg.

Stated another way, the concentration of MMA or EMA in soil could be well above the
proposed UTS before exceeding the Rfd. Assuming an intake of 200 mg/day of
contaminated soil, a 15 kg child could eat soil contaminated to 5,625 mg/kg of MMA,
and a 70 kg adult could eat soil contaminated to 26,250 mg/kg of MMA, each day
without adverse health effects. Again this is 3.5 to 16.5 times greater than the UTS
limit of 1600 mg/kg.

Moreover, a soil metabolism study has shown that MMA will degrade rapidly (ie.,
half-life less than one day) in soil indicating that MMA and similar methacrylates such
as MMA and EMA will not accumulate after reaching soil.
15 EPA (1989) Exposure Factors Handbook. Office of Health and Environmental Assessment. U.S.
Environmental Protection Agency. Washington. DC. EPA/600/8-89/043, May 1989.
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Based on the current EPA Rfd. soil concentrations of MMA or EMA which are
substantially higher than the proposed UTS limits would not be associated with
unreasonable health risk from dietary exposure through soil ingestion. The UTS-based
limits are considerably lower than necessary to protect human health, and would
require an excessive degree of soil treatment." (Rohm and Haas Company, CS2P-
00114)

Response: Consistent with this commenter's suggestion EPA has, in today's final rule.
provided an opportunity for site-specific, risk-based cleanup levels to cap the technology-based
LDR treatment standards provided such site-specific, risk-based levels are found to minimize
short- and long-term threats to human health and the environment and are approved through a
LDR treatment variance.

• 'Does EPA intend to include the three alternative treatment standards for hazardous soil
in the final rule, or will only one alternative be selected?

Westinghouse supports the Agency's proposal to provide alternative treatment standards
for hazardous soil. In many cases, hazardous soils can not be treated to existing LDR
treatment standards. This situation has resulted in the increased use of in-situ treatment
techniques to preclude invoking LDR even if a more efficient, and in some cases more
cost-effective ex-situ method is available. Providing a less stringent treatment
alternative will provide flexibility to use more effective treatment technologies, and will
also in many cases expedite remedial actions.

Based on our reading of the proposed rule preamble, however, it is not clear whether
the Agency plans to make all three proposed alternatives available or whether only one
will be selected for final promulgation. Proposed language for 40 CFR 268.47 makes
it appear that EPA will be promulgating all three The Agency should clarify its intent.

In the event only one of the alternatives is selected, Westinghouse believes the second
option is the most technically sound. This option requires that one achieve a ceiling
concentration of one order of magnitude above the UTS irrespective of treatment
efficiency, and would provide the greatest treatment flexibility while limiting threats to
the environment. This approach is the most straight forward, and will simplify
development and operation of treatment processes and disposal decision-making. We
recognize that there would be instances where a soil could not be treated to this level
due to high initial concentrations, which could result in the need to pursue more
aggressive treatments such as incineration. However, we believe this drawback is
outweighed by the benefits of this approach over the other alternatives.

Selecting the first option would also provide a ceiling one order of magnitude greater
than the UTS. but would additionally require a 90 percent treatment efficiency. If this
alternative were selected, situations would arise where the initial concentration of a

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constituent was slightly above the ceiling concentration, requiring that it be reduced by
90 percent. If this efficiency could not be achieved, the soil would be subject to the
base UTS concentration which also could not be met, leaving as the only alternative a
site-specific treatability variance.

The third option would require a 90 percent treatment efficiency without a
concentration ceiling. While appealing for most scenarios, as EPA states in the
preamble, allowing this option for highly contaminated wastes could result in the land
disposal of high levels of toxic constituents. In our view, it is preferable to require
more severe treatment of these wastes to meet a concentration limit than to allow the
disposal of such materials without additional criteria specified for assessing risk.

Another approach that EPA might want to consider is a combination of Options 2 and 3
where you have the choice between the 90% remediation or the ceiling value. This
approach would encourage more cost-effective treatment and promote development of
other remedial treatment technologies." (Westinghouse Electric Corp., CS2P-00115)

Response: EPA appreciates this support for tailored soil treatment standards.

On April 29. 1996, in the HWIR-Media proposal, EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

The Agency notes that the option selected. 90% capped by lOxUTS, is consistent with the
commenter's recommendation.

• "Hughes supports EPA's efforts to develop universal treatment standards for hazardous
soils in order to encourage flexibility and a wide range of remediation technologies to
meet Land Disposal Restrictions (LDR) while at the same time providing the regulated
community with nationally consistent standards. Hughes also favors applicability of
universal treatment standards to all hazardous soils regardless of the type of
contaminating hazardous waste (i.e., listed hazardous wastes, soils displaying the
toxicity characteristic, and soils displaying the characteristic of ignitability, corrosivity,
or reactivity). However, treatment standards based solely on BDAT are neither
appropriate nor cost-effective. Standards should be based on the relative risks to

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human health and the environment posed by the hazardous constituents of concern.

Hughes does not endorse the first option proposed by EPA for establishing universal
treatment standards for hazardous soil. This option would require generators, prior to
land disposal, to reduce the concentrations of regulated hazardous constituents by 90%
provided that the resulting concentrations are less than or equal to ten times the new
universal treatment standards. Unlike in Option 3. EPA does not explicitly address
under Option 1 situations where concentrations are above the universal treatment
standards but below the ceiling level. EPA should clarify under Option 1 whether
generators of hazardous soils would need to reduce constituent concentrations by 90%
even if this meant reduction below the universal standard or if treatment requirements
would cease once the universal standard has been met. regardless of the percentage
reduction achieved. As discussed below, no matter how EPA clarifies this issue.
Option 1 would result in inequitable treatment requirements among the regulated
community.

EPA's third option provides an unlimited range of values above the universal standards
provided 90% treatment is attained (no ceiling value), unless 90% treatment would
treat the waste to a level below the universal treatment standards. Under such
circumstances, achieving the universal standards would be sufficient. This approach
also establishes an inequitable format whereby generators, would be required to achieve
varying constituent levels, depending on the initial concentrations of the waste.

Options 1 and 3 would require generators of hazardous soil with comparatively low
levels of hazardous constituents to reduce constituent levels, by meeting the 90%
reduction requirement, to levels below those required to be met by generators of
hazardous soil with comparatively high levels of hazardous constituents. Generator A,
with low levels of hazardous constituents in the soil, could be required to treat the soil
to the universal standard while Generator B, with initial concentrations at much higher
levels, could meet the treatment requirement with constituent levels in their treated
waste at concentrations greater than the initial constituent concentrations in Generator
A's hazardous soil. Such inequity is unacceptable and is not justified by any imagined
advantages with respect to flexibility and encouraging innovative treatment
technologies.

Furthermore, these options are unnecessarily conservative with respect to hazardous
soils containing hazardous constituents at concentrations just above the universal
standards. Achieving a 90% reduction of hazardous constituents under such
circumstances could be technically difficult as well as costly.
Hughes advocates adoption of the second approach proposed by EPA which provides a
more balanced treatment standard based on health and technology considerations.

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Under this approach, generators would need to reduce the concentration of hazardous
constituents to ten times the universal standards without any requirements for
percentage reductions in hazardous constituent concentrations. This type of approach is
more consistent with risk-based derived cleanup levels which have been agreed upon by
industry and regulatory agencies under CERCLA remediation and RCRA corrective
action programs. EPA developed the universal treatment standard and allowable
treatment range to minimize the threats to human health and the environment.
Therefore, if a soil treatment technology achieves a cleanup level in this range, this
objective has been met regardless of whether the treatment reduction efficiency is 20 %
or 90%." (Hughes. CS2P-00125)

Response: EPA appreciates this support for tailored soil treatment standards.

On April 29. 1996, in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

EPA notes that the option chosen is consistent with the commenters recommendation in that.
regardless of the initial concentrations of hazardous constituents in any given volume of
contaminated soil, treatment is not required to levels below lOxUTS.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29,
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed hi 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "AAMA supports establishing the proposed alternative technology-based treatment
standards for hazardous waste soils. This approach will reduce current reliance on
incineration while encouraging innovative soil treatment technologies. However,
AAMA is concerned with the first option proposed to establish treatment standards.
Members of the Hazardous Waste Identification Rule Roundtable have found variability
in the ability of the listed treatment technologies to consistently meet the 90 %
standards, particularly in field performance." (American Automobile Manufacturers
Association, CS2P-00128)

Response: EPA appreciates the support for tailored treatment standards for contaminated
soils.

On April 29. 1996, in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment

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standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

• "Questar generally supports development of the universal treatment standards and the
hazardous soil treatment standards. This is a much needed simplification of the
regulations, especially if site specific standards are not precluded where they may be
warranted. Some of the treatment standards, however, seen to be unnecessarily low.
Mercury for example, at 0.009 ppm. is two orders of magnitude below the level at
which a material is declared hazardous. If mercury in the leachate at 0.19 ppm is not
indicative of a hazardous waste, there appears to be no reason to treat to 0..009 ppm
other than it is possible to effect such levels by treatment. Similarly for
pentachlorophenol. where the treatment level is 7.4 ppm. yet soil would be not
declared hazardous at 99 ppm in the leachate. The Agency seems to be relying on
decisions made in the contaminated debris regulations which do not appear to be cost
effective." (Questar Corporation, CS2P-00130)

Response: EPA appreciates the support for tailored soil treatment standards.

• "On page 48131 of the document the statement is made that "In general, the treatment
standards proposed in today's rule regarding hazardous soil are higher than the existing
treatment standards, and are intended to allow flexibility in determining what treatment
technologies to utilize.

The development of treatment technologies that are alternative to incineration is to be
encouraged. However, treatment must be carried out to levels that have been
demonstrated to be at least protective of human health. We have concerns that levels of
soil contamination an order of magnitude higher after treatment, than the values given
in Table UTS would not necessarily be protective of human health. For example, the
BDAT standard proposed for Pentachlorophenol (PCP) for Nonwastewaters on page
48117 of the document, appears to be too high to be protective of human health. The
drastically negative effects of PCP on the human body are well known (see. for
example Pentachlorophenol. U.S. Department of Health & Human Services, Public
Health Service Agency for Toxic Substances and Disease Registry. Draft for Public
comment. October. 1992, hereinafter denoted as Ref. 1). Also, a) PCP accumulates in
tissue-i.e. single doses are not isolated in their contribution to overall effects on the
human body: b) the LDR treatment standard for PCP is < 1 ppb (Ref. 1. P. 110): c)

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volitization of PCPs from soils can occur (the Nevada eight-hour PCP air quality
standard is 1.20 xlO2 mg/kg) as it does from treated wood. In view of these
considerations it is suggested that instead of the proposed "Maximum for any single
grab sample" being 7.4 mg/kg, the standard in Table UTS for Nonwastewaters
proposed for addition to 40 CFR § 268.48 be set no higher than 1.0 mg/kg."
(Department of Conservation and Natural Resources. Division of Environmental
Protection. CS2P-00131)

As discussed in detail in the preamble to today's final rule. EPA has found that the soil
treatment standards minimize threats within the meaning of RCRA Section 3004(m)
considering the distinct treatability issues posed by contaminated soil and the policy issues
posed by the remediation context under which most contaminated soil is managed. The
Agency notes that the soil treatment standards, like any LDR standard, are not intended for
and should not be used as cleanup levels. The treatment standards are based on the
performance of various technologies, not an assessment of risk. Treated soil, like hazardous
waste treated to comply with LDR standards, remains subject to RCRA Subtitle C regulations.
In addition, as noted in the preamble to the proposed rule, in the unusual situations where
compliance with the technology-based standards might result in constituent concentrations that.
nonetheless, exceed site-specific, risk-based cleanup levels, existing cleanup programs at the
state and Federal levels would ensure that cleanup levels were achieved. (EPA does take note
of this comment, however, when considering some of the adamant comments from
commenters from the wood preserving industry arguing that treatment standards for soils
contaminated with wood preserving wastes, of which PCP is often a constituent, should be
even higher than lOx UTS or 90 % reduction.)
The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29,
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "As a general action procedure, option two, under which soil would be treated to a
maximum containment level ten times higher than the value in Table UTS appears
preferable to options 1 and 3 in that a known maximum level of soil contamination
would have been reached independent and contamination or specific treatment
technology." (Department of Conservation and Natural Resources, Division of
Environmental Protection. CS2P-00131)
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Response: EPA appreciates this support for tailored soil treatment standards.

On April 29, 1996, in the HWIR-Media proposal, EPA proposed a revised soil treatment
standard of 90% reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

• "On page 48126 of the document the statement is made that "EPA solicits comment on
the technical or environmental appropriateness of a 90% approach, in particular where
hazardous soils are heavily contaminated with toxic constituents..."

This approach is the third of the three options discussed. Under it. soil would be
treated to remove 90% of its original contamination no matter how high the original
levels of contamination were in the soil prior to treatment. This option does not appear
viable since unrestricted levels of hazardous wastes in treated soils would be the likely
result." (Department of Conservation and Natural Resources, Division of
Environmental Protection, CS2P-00131)

The Agency has found that the treatment standards minimize threats within the meaning of
RCRA Section 3004(m). EPA notes that, like hazardous waste treated to meet the waste
treatment standards, soil treated to meet the soil treatment standards remains subject to RCRA
Subtitle C regulations.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option..
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "Uniroyal Chemical supports the use of alternative treatment standards for hazardous

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soils. The alternative soil treatment standards are being proposed to allow selection of
treatment methods other than incineration. Uniroyal Chemical has found use of
incineration technology to treat hazardous soils, unless they are significantly
contaminated with organics. undesirable economically and believes that incineration of
dirt is an inappropriate use of available incinerator capacity. Although risk based
treatment standards are inherently more appropriate as a mechanism for minimizing
damage to human health and the environment, increasing the likelihood that treatment
methods other than incineration can be selected via alternative treatment standards for
hazardous soils is strongly supported by Uniroyal Chemical.

Uniroyal Chemical supports the third proposed alternative treatment standard for
hazardous soils; i.e.. "hazardous constituent concentrations must be reduced by either
90% or to the universal treatment standard," if the Environmental Protection Agency
has indeed, determined that only the three proposed alternatives can meet the
requirement to minimize damage to human health and the environment. Uniroyal
Chemical believes that the third alternative would allow greater flexibility in treatment
method selection and also allow for treatability variations of different hazardous
constituents contained in one hazardous soil. However, because the potential treatment
methods may achieve 90% removal for high level contaminants, whereas the removal
efficiency for low level contaminants would generally be significantly less. Uniroyal
Chemical believes that an alternative treatment standard that would more likely result in
treatment by means other than incineration is a combination of alternatives two and
three. Specifically, Uniroyal Chemical would prefer to see the treatment standard set
at "hazardous constituent concentrations must be reduced by either 90% or to ten times
the universal treatment standard."

Treated hazardous soils remain a hazardous waste unless the specific waste has been
delisted under 40 CFR 260.22. (In the future it may be possible to obtain a
determination that the soil no longer contains hazardous constituents.) Consequently.
disposal subsequent to treatment to treatment to the alternative hazardous soil treatment
standards would be in a Subtitle C MTR landfill. The advances in landfill design since
the advent of the MTR requirements have been significant. Uniroyal Chemical believes
that treatment of hazardous soil such that "hazardous constituent concentrations are
reduced by 90% or to ten times the treatment standard, " followed by disposal in a
MTR landfill, would be protective of human health and the environment.

Uniroyal Chemical is concerned that the analytical requirements to evaluate the
underlying hazardous constituents in hazardous soils; i.e., comparison to the Universal
Treatment Standards or to the initial constituent concentrations for 90% removal
efficiency, will present a serious impediment for a large quantity generator who
endeavors to remove hazardous waste from his facility within 90 days as required under
40 CFR 262.43 accumulation standards. Uniroyal Chemical has eleven domestic
facilities, only two of which are permitted treatment, storage, and disposal facilities.

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The remaining nine facilities operate under the 40 CFR 262.34 accumulation standards.
Uniroyal Chemical Company believes that less than 90-day hazardous soils on-site in
order to allow selection of a treatment method other than incineration. Specifically.
Uniroyal Chemical strongly recommends that the accumulation time limits should be
extended to 180 days for hazardous soil management only, in order to allow
appropriate alternative treatment methods to be evaluated. Hazardous soils are often
generated through inadvertent spills of commercial chemical products and, as such.
preplanning for treatment and disposal is difficult. Currently, under 40 CFR 262.34
(b) an extension of 30 days may be obtained on a case-by-case basis. If EPA truly
wishes alternative treatment standards other than incineration for hazardous waste soils
to be utilized, Uniroyal Chemical believes that 40 CFR 262.34 (b) should be modified
to allow either an automatic 90 day extension or a case-by-case 90 day extension
specifically for hazardous soils." (Uniroyal Chemical. CS2P-00140)

Response: EPA appreciates this support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

EPA notes that the option being promulgated today, 90% capped by lOxUTS, is consistent
•with the commenters recommendation.

Regarding the suggestion that EPA provide an automatic extension to the 90 day accumulation
time limit for hazardous soil. EPA is not. at this time, persuaded that such an extension is
necessary. The Agency will continue to assess the situation during implementation of the soil
treatment standards and may, in the future, establish an extension, if necessary.

• "Soil contaminated with hazardous waste. Air Products favors the language of Section
268.47 which gives the option of using any of the 3 alternatives given. The flexibility
will allow the use of more innovative technologies in dealing with contaminated soils."
(Air Products and Chemicals, Inc..CS2P-00141)

• "Air Products supports EPA's proposed language in 40 CFR 268.47 which would allow
the use of any of the 3 options for soil cleanup. A variance procedure should be

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allowed to apply treatment of high level wastes that get good treatment without
burning. The flexibility would be a good way to promote non-combustion technology
for soil remediation. However. Option 1-90% reduction with requirement to treat to
a concentration less than or equal to ten times the universal treatment standard - could
require unnecessary treatment if it were the only option promulgated. Option 1 is
redundant if Options 2 and 3 are promulgated. These options can be used and still be
fully protective of human health and the environment." (Air Products and Chemicals,
Inc., CS2P-00141)

Response: EPA appreciates the support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

• "OxyChem believes soil Option 2 (lOxUTS levels) is the most reasonable for soil
management. However, with UTS based primarily on incineration even 10 UTS, most
soil will require incineration. Since the cost may not be feasible, more in-situ
remediations may be necessary in the future, even for relatively small spills. OxyChem
questions whether effectively encouraging permanent land disposal in consistent with
the purposes of the 1984 amendments to RCRA law.'' (Occidental Chemical
Corporation. CS2P-00143)

Response: EPA appreciates the support for tailored soil treatment standards. The option
promulgated today, 90% capped by lOxUTS, is consistent with the commenter's
recommendation in that further treatment will not be required if constituent concentrations
drop below lOxUTS.

Regarding the concern that the soil treatment standards can not be achieved except by
incineration, the Agency's analysis of the data shows that non-incineration technologies can
reliably meet the soil treatment standards in most cases. In situations where a well designed.
well operated application of one of the model technologies on which the soil treatment
standards are based failed to achieve the standard, the generator would be eligible for a
treatment variance. See 40 CFR 268.44(h).
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"With regard to LDR treatment standards for hazardous soils. EPA has proposed three
alternatives:

a. Range of standards with a "ceiling'1 one order of magnitude above the Universal
Standard, provided 90% treatment occurs.

b. Range of standards with "ceiling" one order of magnitude above the universal
standard.

c. Achieving 90% treatment with no "ceiling".

This Department is in favor of alternative "a.." It provides considerable flexibility,
while still requiring a high level of treatment for heavily contaminated soils. The
difficulty with alternative "b" is that the "ceiling" becomes, in effect , the standard.
This is not appropriate, if EPA's data indicates that the universal standards, which are
an order of magnitude lower than the "ceiling," are generally capable of being attained.
Alternative "c" is rejected because a percentage reduction standard can still result in
considerable contamination remaining in the soil, if the soil was badly contaminated.
high-risk material to begin with. Alternative "a" may be the most stringent of the three.
but, considering the variety of hazardous soils and chemical combinations encountered.
a conservative approach at this time would best serve to protect human health and the
environment." (State of New York Department of Environmental Conservation, CS2P-
00144)

"However a second TNRCC commenter from our pollution Cleanup Division is
concerned with practical problems with the proposed rule. The second commenter
whole-heartedly agrees with EPA that LDR treatment standards which have been
developed for as-generated hazardous waste are not appropriate for application to
contaminated media at remediation sites. He believes, however, that use of the
alternative treatment standards which EPA has proposed should not be restricted to
hazardous soils but should be extended to other hazardous remediation wastes.

Under the existing LDR regulations, prior to land disposal, all hazardous remediation
wastes and hazardous soil must be treated to achieve the same standards which apply to
as-generated hazardous waste. Under the approach espoused by EPA in these proposed
rules, the hazardous remediation wastes that can be segregated from soils using simple
mechanical removal processes must be treated to achieve the LDR standards applicable
to as-generated hazardous waste while less restrictive alternative treatment standards
would apply to hazardous soils.

The second commenter notes that EPA's proposed approach would resolve a portion of
the problems caused by the application of LDR treatment standards to remediation
sites. He appreciates this change since it has beer clear for a long time that the current

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LDR program has inappropriately distorted and constrained the remedy selection
process for both state and federal superfund site. The application of LDRs to
remediation sites has had the unintended negative effect of favoring less extensive
remedies than would have otherwise been the case. Remedies which do not involve
excavation and redeposition (i.e.. placement) and treatment have been favored since
remedial actions would not trigger the LDRs. Most of the reluctance to use LDRs at
remediation sites has resulted from the inappropriate application to contaminated media
of treatment standards which were developed for as-generated waste. EPA's proposal
to promulgate LDR treatment standards that have been developed specifically for
hazardous soils should effectively address this portion of the problem." (Texas Natural
Resource Conservation Commission, CS2P-00145)

• "BN also believes that, of the alternatives proposed by EPA treatment standards for
hazardous constituents in contaminated soil, the 90% removal criteria without a
"ceiling" value would be most appropriate for most of the contaminated soils that BN
has to deal with. Biological treatment and low temperature thermal desorption can
operate within the range of 90% removal on many contaminants and in many media.
There are also many instances and sites that will not achieve 90% removal due to
complex contaminant and soils matrices. Even nonhazardous petroleum products are
not treatable to 90% removal in clays. There should be some provisions in the
regulations that would allow for the application of appropriate technology and eliminate
quantitative performance criteria. This approach was taken in the debris treatment
standards and has proven to be effective and implementable." (Burlington Northern
Railroad, CS2P-00148)

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "DWP supports EPA's efforts in establishing soil treatment standard concentrations
higher than those of the contaminating waste. This alleviates some of the difficulty of
treating hazardous constituents combined with soil.

DWP supports the proposed treatment standard with a "ceiling" one order of magnitude
above the universal standard. This standard is the simplest of the three proposed: only

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one number per hazardous constituent exists to determine compliance. Also, no
additional calculation or documentation is needed." (Department of Water and Power
the City of Los Angeles. CS2P-00155)

Response: EPA appreciates the support for tailored soil treatment standards. The treatment
standards promulgated today are consistent with the commenter's recommendation in that
further treatment is not required if constituent concentrations drop below lOxUTS.

• "We have reviewed the proposed treatment standards for contaminated soils (58 Fed.
Reg. 48092) and support the general concept of your initiative. The following
comments and recommendations are offered for the Agency's consideration.

We concur that the proposed change to allow greater flexibility in managing soils
contaminated with RCRA-regulated constituents is a positive step which will make
clean up activities more efficient, while adequately protecting human health and the
environment. We also believe the proposed standards can improve the viability of
hazardous soil cleanup at contaminated sites by allowing for consideration of alternative
treatment technologies and clean up criteria.

The proposed constituent concentrations levels in the Universal Treatment Standards
(UTS) for organics, metals and newly listed wastes are manageable, given the fact that
alternative treatment strategies offered in the proposed rule allow the remediated soil to
have a range of constituent concentration levels above the UTS. We also believe that
there are other factors that should be considered when determining the appropriate
constituent concentration levels for a fully remediated site. Please see the section "Risk
Assessment and Background Levels of Constituent", on page 3 of this comment.
Three alternative treatment standards for contaminated "hazardous soil" were proposed
in 58 Fed. Reg. 48096. The following discussion addresses each alternative, and
provides our rationale for selecting the "best" alternative treatment standard.

(ALTERNATIVE ONE)

90% treatment ceiling value for hazardous constituent(s); 90% reduction of hazardous
constituent(s) from untreated soil must be met along with the resulting constituent
concentration range falling between the UTS and equal to or less than 10 times the
UTS..

We believe this is the least efficient alternative. If the hazardous constituent
concentration in the soil after treatment satisfies the condition of being above the UTS
level, but less than or equal to ten times the UTS, then this should satisfy the criteria.
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(ALTERNATIVE TWO)

Range of values wirh ceilings: Range of final hazardous constituent concentration levels
falls bet\veen the corresponding UTS and the times the UTS (or ceiling).

This alternative treatment standard appears to be the most clear cut from the generator
standpoint, because the constituent concentration levels to be achieved after remediation
will be well defined. There is also less ambiguity and no guess work involved as to the
desired treatment constituent concentration level. Also, this method is the most
technically consistent, and provides equitable standards for the regulated community.

(ALTERNATIVE THREE)

90% treatment with no ceiling: Achieve 90% reduction of the initial, untreated
hazardous constituent concentration in the untreated soil. Tfiis approach allows for an
unlimited range ofvaluates above the universal standard provided 90% treatment is
attained for each hazardous constituent. The treated soil would then meet the treatment
standards at 90% treatment, even if it exceeds the UTS by several orders of magnitude.
This method is far more technology and economics driven that option one or two, and
carries with it much greater risk if the treated soil constituent levels are still high
(relative to the UTS) after treatment.

This method, from the technological standpoint, appears to provide the best alternative
treatment standard. Largely dependent on the original level and type of contaminants.
as well as the type of treatment technology used, it provides greater economic appeal to
contractors cleaning up a site where no means are available to remove more than 90%
of the hazardous constituent. For example, if the soil is lightly contaminated, which is
often the case, it may be more cost effective and easier to clean up a site by reducing
the hazardous levels by 90%. Generally, the constituent concentration would then fall
within the range of the UTS. For this scenario, the "no ceiling" in constituent
concentration seems adequate, since the 90% reduction in hazardous constituents may
render the soil suitable "clean" for use.

Analytically, measurements from soil constituent level tests routinely give a wide
standard deviation of values; therefore, the 90% reduction treatment standard provides
a reasonable and achievable range of values. Often, measured hazardous constituent
levels in soil can vary by one or two orders of magnitude. This can be caused by
technique differences between analytical technicians, soil matrix heterogeneities, and
even variability in the treatment technologies. Achieving a 90% reduction in hazardous
constituents may be easier to prove than the UTS values and range.

However, there is also a significant levels of risk involved when a heavily contaminated
site is only remediated by 90%. One concern with this treatment standard is that it is

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largely dependant on the types of hazardous constituents and the original concentration
level of the hazardous constiruent(s). A 90% floor on the treatment of soil may not. in
all cases, reduce the hazardous constituents to levels which protect human health ad the
environment.

Lockheed Corporation proposes that EPA incorporate two options, the current options
two and three in the final rule. This would give the site clean up contractor or
generator greater flexibility on selecting the treatment technology that would be the
most cost effective . while still reducing the hazardous constituents in the contaminated
soil to levels that no longer pose a significant health or environmental hazard.. Option
two would be used at cleanup up sites where cost effective treatment technologies are
available that are capable of reducing the hazardous constituent concentrations to the
UTS level or a ceiling of ten times the UTS. Option three would be used where the
available technology, such as bioremediation. could readily reduce the level of
contamination by 90%, but not reach the UTS. Under the appropriate condition with
regard to site characteristics and type of contamination, this option would provide for
adequate clean up of the site. Making both of these options available, subject to the
mutual agreement of the clean up contractor and the oversight agency, would result in
more contaminated soil sites being remediated in a timely manner and at less cost and
burden." (Lockheed Corporation, CS2P-00158).

The option promulgated today, 90% capped by lOxUTS. is consistent with the commenter's
recommendation.

• "EPA states that, "when today's proposed soil treatment standards are promulgated.
hazardous soil will become subject to those standards in lieu of the treatment standards
for the RCRA wastes contaminating the soil."

Subjecting hazardous soil to the proposed standards (where the UTS would serve as the
"base" standards) instead of the existing treatment standards for the RCRA wastes
contaminating the soil will have a significant effect on certain categories of hazardous

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soil (in particular, soil contaminated with selenium and mercury). For instance, under
the existing rules, mercury-contaminated soil (DOO9) which leaches greater than 0.2
mgl mercury in the TC extract must be treated to the LDR level for RCRA TC
mercury waste (0.2 mgl) before it can be land disposed. If the UTS as proposed are
promulgated, the soil would be required to be treated to 0.009 mgibased on TCLP.
which is a more than an order of magnitude lower than the existing standard. Even if
EPA selects a treatment option that would allow the universal standard to be exceeded
by an order of magnitude (as discussed in Section VTI.C.l of these comments), the
level the soil would have to be treated to would still be 0.09 mgl, which is less than
half of the existing level of 0.2mgl. The additional expense associated with achieving
these lower levels potentially could be great.

Considering this type of scenario. DOE suggests that EPA continue to allow treatment
of hazardous soils to standards for the underlying RCRA wastes contaminating the soils
as an alternative to the proposed approaches. Since the existing LDR requirements
were promulgated to achieve acceptable levels of treatment, allowing the option of
using the standard for the underlying RCRA wastes likewise should be considered
adequate treatment." (DOE, CS2P-00161)

Response: Consistent with the commenter's recommendation, today's final rule allows
hazardous contaminated soil to be treated either to comply with the soil treatment standards or
to comply with the universal treatment standard for the contaminating hazardous waste.

• "Our primary concern focuses on the treatment of mercury contaminated soils.
Specifically, A.G.A. supports EPA's option of achieving 90% reduction with no
"ceiling" with a minimum treatment level of 0.20 ppm Toxic Characteristics Leaching
Procedure (TCLP) level. Higher levels should be allowed where demonstration shows
that there is not a risk to human health or the environment.

In proposing Option C, achieving 90% treatment with no ''ceiling", EPA acknowledges
that there is no question as to whether innovative technologies can generally meet the
numerical standards proposed under the other options. Furthermore, EPA notes that
many of the achieved treatment levels are based on bench scale tests. A.G.A. concurs
with this assessment. A.G.A. , the Interstate Natural Gas Association of America
(INGAA) and the Gas Research Institute (GRI) have been working with EPA for
several years to determine appropriate treatment technologies for contaminated mercury
soils found at natural gas regulator and meeting stations."
(American Gas Association, CS2P-00165)

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in today's final rule.

EPA notes that the option promulgated today is consistent with the commenter's
recommendation in that further treatment will not be required once constituent concentrations
are reduced by 90%.

• "Due to large variability in the characteristics of soils containing metals and metallic
compounds, any management standards promulgated for metal bearing soils must be
sufficiently flexible to allow for choice of the most appropriate technology in any given
situation.

• Asarco does not endorse LDR treatment standards based on EDA's proposed
universal treatment standards (UTSs) for metals in nonwastewaters.

• Asarco does not endorse arbitrary treatment standards such as 90-percent
treatment.
• Asarco opposes setting a total standard for any metal-bearing nonwastewaters
including for soil containing lead." (Asarco, CS2P-00166)

• "Asarco has practical experience addressing issues and problems that have during the
management of soils at specific remediation sites. This experience has shown that it is
ineffective, inefficient, and counterproductive for EPA to apply generic remedies and
standards: this includes applying LDR treatment standards under RCRA to soils that
instead should be managed according to plans approved by the authority overseeing the
remediation.

It is essential that remedy decisions (including how soils are to be managed) be made
on a site-specific basis. Imposing generic national requirements (such as LDR
treatment standards) has the potential to interfere with and/or present conflicts with
site-specific remediation decisions. For instance the National Contingency Plan
Specifies that one of the criteria used to guide the development and screening of
remedial alternative is cost. There may be some cases in which consolidating soil in
one unit (which might constitute "placement") may be a desirable alternative from the
standpoint of protecting human health and the environment: However, applying RCRA
LDRs for this type of alternative will increase the costs-possibly to the degree that the
alternative is rendered infeasible. As another example, given the variability of soils,
meeting LDR treatment standards may not be possible in some cases. This could

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necessitate going through the treatability variance process causing an unnecessary delay
in the progress of remediation.

EPA correctly acknowledges that factors such as the large volumes of soil, wide
variations in contamination of soil, and varying soil types can affect a soil remediation
project. Because of these and other factors, the choice of the most appropriate
management practices will necessarily vary from site to site. EPA's own soil database
and information available in Superfund studies including Remedial
Investigation/Feasibility Studies (RI/FSs) show the extremely wide variation in soil
treatment results.

Asarco is particularly concerned about the need for site-by-site flexibility when
managing metal-bearing soils. As EPA has recognized in administering RCRA, mining
and mineral processing sites and wastes containing metals and metallic compounds
present unique issues. Factors distinguishing sites and wastes containing metals and
metallic compounds (e.g.. mining mineral processing sites) include the following:

• the tendency for metals to form heavy metal complexes and/or bond to the soil
matrix (and therefore not be very mobile in the environment);

• the generally low bioavailability of metallic compound species in metal-bearing
wastes and soils contaminated with these wastes;
• the inherent technological and economic limitations of achieving greater metals
recovery from these wastes and soils, especially at low metals concentrations:
• the high volume and low toxicity of wastes at mining and mineral processing
sites: and
• the vast size of many mining and mineral processing sites.

EPA's RCRA mine waste study and report to Congress are particularly relevant to
Asarco's concerns regarding the unique nature of mining and mineral processing sites.
That report concluded:

Factors governing leaching rates, fate, and transport of constituents [at and from
mine sites] are complex, highly site-specific, and dependent on physicochemical
properties of both the waste and the local subsurface environment. For
example, ph, reduction-oxidation potential, adsorption, coprecipitation
processes, and complex chemical and hydrological interactions are unique to
each site.

Remediation costs at mining sites have been high compared with average costs. The
average Superfund remediation cost is $30 million/site; however, remediation at the
Bunker Hill mining site (coverage 21 square miles) has been estimated by EPA to reach
up to S120 million. Any EPA decision, such as imposition of RCRA LDR

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requirements, that further inflates the cost of remediation without contributing to
protection of human health and the environment would be seriously injurious to panics
involved in cleanup and to other members of the public who benefit when cleanups are
completed in a timely, reasonable, and cost-effective manner." (Asarco. CS2P-00166)

Response: Many commenters expressed concern over application of LDRs to remediation
waste, including contamianted soils. Most of these commenters, like this commenter.
suggested that EPA exempt remediation waste, including contamianted soil, from a duty to
comply with LDRs.

The Agency generally shares commenter's concerns about application of LDRs to remediation
waste, including contamianted soil. However, the current statute seems to compel it. See
RCRA Section s 3004(d)(3) and (e)(3). The Agency continues to believe that legislation is
necessary to address this issue and will continue to participate in legislative discussions.

• "Asarco believes that EPA should construct an overall regulatory framework that will
allow remediation involving soils that EPA would define as hazardous to be earned out
with oversight of the relevant authority and without imposition of generic RCRA
LDRs. However, since EPA's September 14, 1993 proposal may be indicative of the
Agency's current thinking on soil management issues and because EPA has reiterated
its request for data relating to the treatment of hazardous soils. Asarco presents the
following comments on the treatment standards that EPA proposed in its September 14.
1993 notice.

In its proposal, EPA stated that it was proposing "alternative technology-based
treatment standards for soils." However, the proposed treatment standards were based
on approaches that included two elements: (1) multiplying the UTSs by an arbitrary
factor of 10, and (2) choosing a generic 90-percent reduction standard. These proposed
treatment standards plainly were not derived from technology data for specific soils.
Although EPA attempts to justify the arbitrary numbers by referring to its soils
treatment database, the technical data presented fail to support the proposed treatment
standards, particularly for metal-bearing soils.

EPA acknowledged that "the data may not represent potentially problematic matrices
and varying contaminant levels." The Agency also acknowledged that more than 50
percent of the tests EPA used as support for its treatment standards were bench-scale
(rather than pilot-scale or full-scale tests). The data for soil washing included no pilot-
scale or full-scale tests. EPA stated that high temperature metals recovery (HTMR)
processes include rotary kiln, the plasma arc reactor, the rotary hearth electric furnace
system, the molten slag reactor, and the flame reactor. However, only one of these
technologies (rotary kiln) is on the list of treatment technologies for which EPA has
data: EPA lacks data for the others. EPA should note that HTMR processes could
include other types of smelting furnaces such as blast furnaces, flash smelting furnaces.

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and so forth, even though to date application of these technologies to contaminated soils
treatment is limited.

While Asarco undertakes metals recovery where feasible, in the company's experience
there are limited circumstances in which HTMR technologies arc feasible for soils due
to low metals concentrations, unless the soil matrix can serve as a replacement for flux
materials. Metals recovery becomes less economically feasible with lower metals
concentrations. Below a certain concentration, metals recovery is not technically
feasible due to thermodynamic constraints.

For these reasons and others discussed below. Asarco does not support the proposed
LDR treatment standards for metal-bearing soils. Asarco believes that there will be a
significant number of actual situations in which the best available management method
for a metal-bearing soil will not correspond to the proposed UTS-based or 90 percent
treatment-based standards. EPA points to the option of petitioning the Agency for a
treatability variance when a hazardous soil cannot be treated to the LDR standard.
Forcing various parties to resort to the variance process is inappropriate because this
lengthy process almost certainly will delay and encumber remediation efforts. In
addition, it would place further budgetary strain on EPA which would have to review a
large number of petitions.

EPA's three proposed options for setting hazardous soil treatment standards each rely
on the universal treatment standards (UTSs) to some degree. As explained in Asarco's
previous comments on other portions of the proposed rule. Asarco does not endorse
EPA's proposed UTSs for metal constituents, particularly for nonwastewaters, and does
not believe the EPA has provided adequate technical support for their adoption.

EPA's proposed numeric UTSs for metals (except arsenic) in nonwastewaters are based
on the performance of HTMR and hydrometallurgical technologies. Asarco does not
support these UTSs because the Agency uses a hypothesis that the effectiveness of the
performance of these technologies is matrix independent. The performance of metals
extraction technologies is dependent on metal concentrations and speciation as well as
matrix composition. Furthermore, as EPA itself acknowledges, metals recovery
technologies "are not generally practical for treating hazardous soil because of the
relatively low levels of metal contamination typically found in soil." Any treatment
standard that is a descendent of a number based on the use of metals recovery is clearly
inappropriate when applied genetically to soil.

Asarco is particularly concerned about EPA's setting an LDR for arsenic-containing
soils based upon a UTS that relies on slag vitrification. Asarco strongly discourages
the application of any such standard to soils because the efficacy of vitrification for
arsenic in soils is unproven. In fact, EPA includes only one test of vitrification in its
database, and it does not appear that metals data from this single test were used. In

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addition, it is worth noting that vitrification is generally an extremely energy-intensive
process. When treatment is required. Asarco's experience indicates that stabilization
generally appears to be the most effective treatment for arsenic-containing soils.
Asarco's experience indicates that the proposed UTS for arsenic (and even an order of
magnitude greater than the proposed UTS) may not be achievable by available
technologies for soil in some situations.

EPA specifically requests comments on whether a 90-percent treatment standard should
be applied to inorganic constituents. Asarco does not support the use of an arbitrary
90-percent treatment standard, particularly for metals. EPA's arbitrary choice of 90
percent is not supported by technical data and may not be possible to achieve in some
cases, depending on the characteristics of the particular soil. Such a treatment standard
is particularly inappropriate for metals, which cannot be destroyed in the sense that
organics can. Furthermore, a 90-percent treatment standard would have the
inappropriate result of being more difficult to meet for low metals concentration soils
than for higher metals concentration soils. In general, the lower the metals
concentrations in a soil, the more difficult the metals are to remove or recover.

The most appropriate treatment technologies for soil, if treatment is necessary,
generally involve stabilization, immobilization, and/or solidification. In fact, EPA's
soil treatment database contains very sparse treatment data on other kinds of
technologies (i.e., other than immobilization or stabilization) for metal-bearing soils.
Based on the Agency's proposed regulatory language, it appears that EPA is proposing
to apply the 90-percent treatment standard to whole waste concentrations. However,
the treatment benefits achieved by stabilization, immobilization, and solidification
generally are not measurable by a reduction in total waste concentration. Therefore.
any whole waste concentration treatment standard for soils containing metals or
metallic compounds would be virtually meaningless. (The 90-percent treatment
standard would still be arbitrary and inappropriate as discussed above if applied to
leachate instead of total waste." (Asarco. CS2P-00166) [Also see Chapter 27. A.]

Response: On April 29, 1996, in the HWTR-Media proposal. EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.

The basis for EPA's April 29. 1996 proposed treatment standards is set out in the April 29,
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.
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EPA does note, in response to the commenter's specific concern regarding treatment standards
for metals, that the final standards are based upon the performance of stabilization technologies
(not high temperature metal recovery). EPA notes that Agency data show that the soil
treatment standards can routinely be met in metals contaminated soil using stabilization and
solidification technologies. The Agency confirms that use of theses technologies to treat
metals contaminated soil (as well as use of any other technology that meets the soil treatment
standard and does not constitute impermissible dilution) is allowed.

• '"The principal soil constituent in Louisiana is clay, so the proposed standards will have
a large impact on the treatment of hazardous soils at sites in the state. To fully protect
the environment and the people of Louisiana a strong set of guidelines is needed to
ensure that there is a consistency in remediation between different sites. Failure to
remain consistent could result in litigation as a site required to clean to a lower level
could challenge the cleanup level for a similar site with a higher treatment level

Of the three approaches proposed for establishing treatment standards for hazardous
soils, the LDEQ agrees with the setting of a ceiling one order of magnitude above the
universal treatment standard, providing that 90% treatment of each constituent subject
to treatment is achieved. This approach would give the most consistency throughout all
sites and would be the most protective of the environment and human health.

The relaxing of the treatment levels in the other two approaches for the sake of
alternate technologies is not justified. The alternate technologies must demonstrate that
the treatment can be as effective as established treatment methods prior to being used or
approved.

The second approach is untenable in that a site with constituent levels just over the one
order of magnitude ceiling would require little treatment to reach the ceiling. While
this would be a cost saving for the site, it would not significantly reduce the
constituents that required the soil to be classified as hazardous in the first place.

The third approach is also untenable in that sites with gross contamination could still
after 90% reduction have significantly high levels of a hazardous constituent remaining.
An example of this would be a site with 50,000 mg/kg of lead contamination.
Treatment to 90% would reduce the level to 5,000 mg/kg which is three levels of
magnitude over the established treatment level. This would be totally unacceptable to
the LDEQ. It is felt that the variance mechanism is adequate for dealing with sites that
cannot meet the treatment standards." (Louisiana DEQ, CS2P-00167)

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in today's final rule.

EPA has found that the soil treatment standards minimize threats within the meaning of RCRA
Section 3004(m) considering the distinct treatability issues posed by contaminated soils and the
distinct policy issues raised by the remediation context under which most contaminated soil is
managed. The Agency notes that the soil treatment standards, like other LDR treatment
standards, are not and should not be used as cleanup levels (or as levels which automatically
allow contaminated soil to exit the RCRA Subtitle C system). The treatment standards are
based on the performance of specific soil treatment technologies, not an analysis of risk.

• "The September 1993 notice also set forth a proposal to derive treatment standards for
soils. Although this proposal has now been incorporated into the RCRA Hazardous
Waste Identification Rule (HWIR) process (59 FR 10778, March 8, 1994), AfflC
would like to endorse the rationale behind this proposal. Again, although there are still
technical concerns with the basis for the suggested three approaches to developing
compliance levels, AJHC believes that the proposal correctly identified the need for
treating soils differently from wastes. The proposed standards, which were not only
presumably less stringent than for waste, were also an attempt to promote the treatment
of soils by innovative technologies other than by incineration." (AIHC, CS2P-00168)

Response: EPA appreciates this support for tailored soil treatment standards.

• "As explained in part n above, API agrees with EPA that treatment standards for
hazardous soils should be addressed in the upcoming HWIR proposal and not as a stand
alone rulemaking, and therefore will withhold evaluation of soil treatment standards
until it submits comments on the upcoming HWIR proposal. Nevertheless, API does
acknowledge that the framework developed under HWIR may not be appropriate for
every site with hazardous waste contaminated media, particularly where a responsible
party wishes to engage in a voluntary cleanup. Therefore, though API does not support
technology-based treatment standards per se. such standards may nonetheless be a
useful alternative under such circumstances.

For example, for a facility that engages in the generation and temporary storage of a
limited suite of hazardous wastes (e.g., a '90-day' generator of hazardous waste) and
where there may have been an accidental spill of listed wastes in the past that requires
some remedial attention, the universal standards may be something that the generator
could utilize. The contaminated soil may be excavated and transported off site for

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treatment without triggering the attention of. or need for. oversight by regulatory
officials. Alternatively, the generator could use the standards as a screen to determine
whether the soil needs to be treated at all. Even under these types of circumstances.
API still believes that the generator - fearful of future environmental liability - will
likely engage an overseeing agency in an attempt to 'approve' the cleanup activity.
Such an 'approval' process will quickly begin to resemble the site-specific remedial
action plan (RAP), being discussed under HWIR. API is, therefore, not convinced that
there will be a large number of truly 'self-implementing' cleanups, where LDR
treatment standards could be used exclusively to satisfy remedial needs or obligations.

However, to satisfy the need for a simple remediation approach in situations like those
described above, API suggests the application of a modified version of Approach B or
•Range of Standards with a "Ceiling" One Order of Magnitude Above the Universal
Standards/ outlined in the Phase H LDR proposal (58 FR 48125). As proposed by
EPA. one would have to treat a volume of hazardous soil to achieve a concentration in
the treated soil between the universal standard and an order of magnitude greater than
the universal standard.16 There would be no obligation to achieve a specific percent
reduction in initial (pre-treatment) constituent concentrations. API believes that this
option affords the greatest opportunity for the use of innovative technologies (i.e..
alternatives to combustion technologies). Specifically, one may be capable of treating a
particular volume of contaminated soil to achieve the target range of constituent
concentrations, without having to mandate a specific percent reduction in initial
concentrations. This allows a manager of contaminated soil the flexibility to utilize a
non-combustion technology (e.g., biotreatment) to achieve the desired results.

As stated above, API could support a 'modified' Approach B to address situations like
those above. The Approach would be modified such that the UTS for polynuclear
aromatics would be revised as recommended by API in comments submitted on UTS
for wastes on November 15. 1993 (in the discussion addressing the applicability of the
universal standards to petroleum refining wastes). This would result in the revision to
the target constituent concentration ranges for these soils (e.g., for benzo(a)pyrene the
target range would be 12 mg/kg - 120 mg/kg versus 3.4 mg/kg - 34 mg/kg, as
proposed)/' (API, CS2P-00169)

Response: EPA appreciates this support for tailored soil treatment standards.

On April 29. 1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment
standard of 90 % reduction in constituent concentrations or ten times the universal treatment
16 As outlined in the EPA proposal, compliance with this approach would be on a 'total constituent
concentration' basis for organic constituents and on a 'concentration in a leachate extract' basis for metal constituents.
.API believes, however, that the basis for compliance with treatment requirements should be on a concentration in a
leachate extract for both metal and organic constituents.

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standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as "90%
capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard in
today's final rule.

The option promulgated today is consistent with the commenter's recommendation in that
further treatment will not be required if constituent concentrations drop below lOxUTS.

• "In general. Coastal urges EPA to develop "universal treatment standards" that are
based on risk to human health and the environment and are achievable using cost-
effective technologies which have been demonstrated in industry practice. As will be
noted in the specific comments that follow. Coastal urges EPA to adopt Option C as
stated in its proposed rulemaking with the maximum amount of required treatment of
soils being the present RCRA action levels. Furthermore, treatment above these
present levels should be allowed upon demonstration of no significant risk to human
health or the environment.

For example. Coastal supports EPA's Option C because it requires achieving 90
percent reduction, of mercury in soil with no "ceiling." However, Coastal believes that
final treatment below the present regulatory levels of 0.20 parts per million (ppm)
Toxicity Characteristic Leaching Procedure (TCLP) is unnecessary to protect against
significant risk to human health or the environment.

In proposing Option C, EPA acknowledges that there is a question as to whether
innovative technologies can generally meet the numerical standards proposed under the
other two options. Furthermore. EPA notes that many of the achieved treatment levels
are based on bench-scale tests. Coastal, as a member of the American Gas Association.
the Interstate Natural Gas Association of America and the Gas Research Institute, has
been working with EPA to determine appropriate technologies for contaminated
mercury soils found at natural gas regulator and metering stations." (Coastal. CS2P-
00172)

Response: On April 29, 1996, in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.
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The standards promulgated today are consistent with the commenter's recommendation in that
further treatment is not required if constituent concentrations are reduced by 90%. EPA has
also, consistent with the commenter's recommendation, provided an opportunity for site-
specific, risk-based standards to cap the technology-based soil treatment standards if such risk-
based standards are shown to minimize threats within the meaning of RCRA Section 3004(m.)
and are approved through a variance process. The so called site-specific, risk-based treatment
variance is discussed in detail in the preamble to today's final rule.

• ''EPA proposed to apply the Universal Treatment Standards (UTS) to all wastes
including soils. Conoco believes that technology-based standards such as the UTS will
be lacking. A risk-based approach is necessary to ensure flexibility, protection of
human health and the environment, and timely, cost-effective solutions.

EPA proposed three alternative treatment standards for hazardous contaminated soils:

• UTS < LDR< lOxUTS provided 90% treatment of each constituent present is
achieved.

• UTS
-------
Consistent with the commenter's recommendation EPA has provided an opportunity for site-
specific, risk-based standards to cap the technology-based soil treatment standards if such risk-
based standards are shown to minimize threats within the meaning of RCRA Section 3004(m)
and are approved through a variance process. The so called site-specific, risk-based treatment
variance is discussed in detail in the preamble to today's final rule. EPA has also clarified that
further treatment is not required once constituent concentrations fall below naturally occurring
background concentrations.

• "Time Oil Co. epitomizes the benefit EPA's proposed alternative treatment standards
for hazardous soils will confer to the environment. With alternative treatment
standards. Time Oil can quickly clean up its contaminated property to levels fully
protective of human health and the environment and put the property back into
productive use. Without alternative treatment standards. Time Oil faces prohibitively
high remediation costs without any significant reduction in risk to health or the
environment

Time Oil believes that each of the three proposed alternative treatment standards for
hazardous soils will benefit both the regulated community and the environment by
encouraging timely, proactive remedial action, thereby reducing the potential the
potential for migration and decreasing risk. Even the most stringent of these
approaches will increase the technical options available to address the large volumes of
low to moderately contaminated soil, which in most cases will substantially reduce
remediation costs with little or no adverse effect on or significant in risk to human
health or the environment.17

Time Oil's Portland terminal is a perfect example of the disproportionate costs the
current land disposal restrictions on contaminated media impose upon the regulated
community in relation to the environmental and human health benefits the restrictions
confer. The proposed hazardous soil treatment standards represent a necessary and
appropriate correction to this imbalance." (Time Oil Co.. CS2P-00178)
1 Time Oil assumes that universal Treatment Standard is the lower limit for all three approaches.
Although not explicitly stated in the proposed rule. Time Oil assumes that, under proposed approach 1. treatment that
achieves the Universal Treatment Standard need not also achieve 90% reduction to comply with the hazardous soil
treatment standards. If EPA adopts proposed approach 1. this clarification should be made in the final rule at 40 C.F.R.
268.47 i b)(D.

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Response: EPA appreciates the support for tailored soil treatment standards.
• "We also suggest a deficiency in part C. Proposed Approaches for Establishing
Treatment Standards for Hazardous Soils, section 2. Explanation of Numeric
Treatment Standards for Hazardous Soils. Under the first approach, the Agency
proposes "a range of standards with a 'ceiling' one order of magnitude above the
universal standard, provided 90% treatment of each constituent subject to treatment is
achieved". This deficiency is admitted in Scenario 1. "The standard under this scenario
is affected by the untreated contamination level." This proposal would require all
levels of contamination, even those that are just over the universal standard, to meet the
90% rule and would force remediation to levels below the universal standard. This
approach invites unnecessary litigation and falls outside the bounds of reasonableness.
Scenario 2 is by far the superior method because the limit is valid for all soils
regardless of the untreated level. This method assures that the target is reached without
unnecessary efforts of the responsible party to meet the arbitrary 90% rule that puts the
remediation level below the universal standard. Scenario 3 invites litigation as does
number 1. In both Scenarios 1 & 3. the court will refer to Hazardous Waste Treatment
Council v. EPA, 886 F.2d 355. 361-64 (B.C. Cir. 1989), where they held that
treatment standards cannot be established "beyond the point at which there is no 'threat'
to man or nature" It does not make sense to promulgate a standard that violates the
court's previous ruling." (Biogenesis Enterprises Inc., CS2P-00180)

Response: On April 29, 1996, in the HWIR-Media proposal, EPA proposed a revised soil
treatment standard of 90% reduction in constituent concentrations or ten tunes the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxUTS." EPA is finalizing the 90% capped by lOxlJTS treatment standard
in today's final rule.

Consistent with the commenter's recommendation EPA has provided an opportunity for site-
specific, risk-based standards to cap the technology-based soil treatment standards if such risk-
based standards are shown to minimize threats within the meaning of RCRA Section 3004(m)
and are approved through a variance process. The so called site-specific, risk-based treatment
variance is discussed in detail in the preamble to today's final rule.

• "We believe that is not appropriate to reduce standards to below those determined by
evaluating the application of specific technology on the specific waste streams to be

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regulated, standards which EPA has already evaluated to have met the 'minimized
threats" criteria.

The UTS standards should be a compilation of the standards demonstrated to be
achievable for all regulated wastes. It is contrary to logic to arbitrarily reduce these
further unless there was a compelling concern regarding the threats posed by the
constituent at the current BDAT levels.

The universal treatment standard as proposed is not risk related and is internally
inconsistent. For example, the treatment standards for PNAs are overly stringent and
do not correlate with risk.

• The delisting level for fluoranthene (100 mg/1 leachate which equates to at least
2000 mg/kg total) is 588 times the UTS standard (3.4 mg/kg). Other PNAs
show similar contrasts.
• PNAs are not water solubles and strongly adsorb to soil and thus pose no
potential to migrate in groundwater.
• Some PNAs pose a greater health risks than others, yet they have the same
treatment standard. (Benzo (a) pyrene vs. fluorene).
• The large number of PNAs on the UTS list increase the statistical chances for
false positives.
Lowering LDRs once they are already in place discourages the development of new
technology by creating uncertainty for those who would otherwise participate in their
development. Potential technology providers need to know that they are not chasing a
moving target. Potential users of the technology need to know that participating in the
development of new technology will not result in standards 'leap froggur to lower
levels, thus forcing the use of more expensive and less available technology. This has
a particularly strong impact at site clean-ups where the degree and rate of progress
made at a site is inextricably linked to the cost of the treatment technology.

For technology users, there is the real expectation that a successful development will
force more stringent treatment standards and raise the cost of doing business in the
Unites States. With a fixed standard, technology users have an incentive to see
technology advance as they can expect more effective and less costly service in the
future. However, a technology driven reduction in the LDR levels creates the 'sinking
standard syndrome' where technology users are a bit queasy about participating in
bringing new technology to market. Participation can mean that a more costly
technology will be developed and imposed.

Specifically, reducing the LDR levels for refinery listed wastes due to the merging
availability of high temperature thermal treatment is not the result Chevron was seeking
when it participated in the development of this technology.
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Chevron urges the EPA not to reduced the existing LDR levels. Reducing these levels
will discourage site clean-up to the degree that these standards are applied to soils. If a
universal treatment standard is to be created, then it should consist of the least stringent
levels from the various waste codes." ("The Chevron Companies. CS2P-00182)

Response: Although the universal treatment standards are not the subject of today's
rulemaking, in developing the UTS. EPA has in fact adopted the approach urged at the end the
comment. Where there are different technologies which substantially treat wastes to reduce
toxicity and mobility, the Agency has selected the highest value reflecting proper operation of
the technology, and in addition, used the higher-performing of the different technologies.

• "We appreciate and agree with EPA's comments regarding the heterogenous
characteristics of soils and the problematic matrices and contaminant levels involved.
As noted above, any LDR applied to soils is going to detrimentally impact the progress
of all projects and site cleanups involving hazardous soil. However, assuming that
EPA rejects the compelling and mounting evidence to this reality, we offer our
comments on the proposed approaches.

The universal treatment standard (UTS) times 10 is attractive to the degree that it
provides some flexibility. After all. if the standard,can't be met, the soil remains in the
ground. Thus, we believe that given the heterogeneous nature of soil and a lack of
extensive data on any one technology, that 100 times the UTS is more appropriate.
However, even this is overly stringent and undefendable. The 10-3 risk based bright
line criteria discussed under HWIR would be an appropriate treatment standard given
that non-RAP/non-oversight soils will subsequently be disposed in a hazardous waste
landfill.

We do not believe it is appropriate to apply an arbitrary 90% reduction criteria based
on total constituents. Depending on the technology used, the potential of constituents
to migrate could actually increase even with a 90% reduction in total concentrations.
Rather, the method of evaluation should be tailored to the technology and should
measure a compounds potential to migrate. As noted above, we believe the
performance of biological treatment is more accurately assessed using a leachate
analysis. Applying the TCLP to soils is a much more accurate method than when
applied to oily sludges and should be an appropriate method for this evaluation.

A percent reduction criteria could be used to determine whether a technology is being
well operated. If such a technique is applied, it should be evaluated around the
operating unit and not on the overall soil inventory. That is, samples would be taken at
the inlet and outlet of the unit at a specific time while in operation to demonstrate the
reduction. Samples should only be required as often as is necessary to assure
generators knowledge that the system is operating well. File records or a note on the
manifest may be needed to attest to the fact that the material was treated with an

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appropriate well operated technology.

This option is far too stringent and complicated. It arbitrarily imposes dual criteria
which are likely to trip up the best of technologies for reasons that are not related to
risk reduction. This is the 'incinerator full capacity option' which will, ironically.
leave constituents in the ground and migrating while lawyers discuss who is
responsible." (The Chevron Companies. CS2P-00182)

Analysis of data from the soil treatment database show that these standards can be routinely
achieved using non-combustion treatment technologies (for organics), and by stabilization
technologies (for metals).

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by lOxUTS option.
Comments regarding the (90% capped by lOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "USPCI strongly disagrees with the agency's proposed standards for soils containing
hazardous wastes. Despite the Agency's dubious characterization of the standards as
technology based, the proposed standards represent a marked departure from the BDAT
methodology traditionally employed to set standards for the protective treatment of
hazardous wastes. Instead, the Agency proposes standards that are wholly arbitrary.
based neither on risks to health nor on performance of technology. Moreover, the
EPA's earlier proposal to depart from the BDAT methodology by promulgating
middle-of-the-road 'universal treatment standards' which, themselves, are only
tangentially based on technology performance (and lack any health justification),
renders the proposed soil standards even more arbitrary and less justifiable than they
otherwise might be. Because the proposed standards are set at levels above those at
which the EPA has determined threats to be minimized, the proposed standards, if
finalized, will plainly violate RCRA section 3004(m)(l)." (USPCI, CS2P-00171)

• "USPCI fully supports attempts by the Agency to facilitate clean-up of environmental
media to the extent such initiatives are permitted by law and founded in sound public
health and environmental policy. Unfortunately, the standards suggested in the
Proposal fail on both accounts. On the whole, the Proposal fails to justify the special
treatment suggested for soils. In some instances, justification is merely inadequate; in

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others it is absent. In our view, the Agency can and should achieve its objectives to
facilitate site remediation without jeopardizing the continuing vitality of the regulatory
system Congress thoughtfully set out in the HSWA. Accordingly, we encourage the
Administrator to consider our comments below and refrain from establishing illegal.
arbitrary, and unprotective standards with undesirable policy consequences." (USPCI.
CS2P-00171)

"Each of the regulatory options for soils suggested by the Agency are arbitrary in that
they are not based on any rational standard and represent a significant and unexplained
departure from BDAT methodology. The agency bases its soil standards on the
standards set forth in the proposed UTS table for non-wastewaters. Using these as the
base standards, the EPA suggests three possible alternative standards for soils:

a. require treatment to any level between the UTS level and ten time the UTS level
provided the level actually achieved represents a 90% reduction from the initial
concentration:
b. set the soil standard at ten times the UTS level: and
c. define compliance as a 90% reduction from initial levels.

Option c. and b. are plainly illegal under RCRA. RCRA section 3004(m)(l) requires
the Administrator to identify those levels or methods of treatment that minimize short
term and long term threats to human health and the environment and to set treatment
standards at those levels. Although the Agency correctly notes that the D.C. Circuit in
Hazardous Waste Treatment Council v. EPA confirmed the Agency's authority to set
standards based either on risk or on performance of technology, the court clearly did
not authorize the Agency to select a number with only providence as a guide. Options
b. and c. amount to nothing more. The only conceivable way in which option c. could
be related to technology is upon the rationale that, because illegal dilution is prohibited.
some treatment method must be employed to reduce constituent levels by 90%. Option
b. is almost as far removed from any footing in technology, supportable only on the
assumption that because the UTS standard is presumably, based on technology
performance, any number that is derived from the UTS is also technology based. Of
course, on this logic, a standard set at 50, 100. Or 1000 times UTS would also be
valid. Such a technology basis is related to minimizing threats, if at all, by luck alone.
Option a., although somewhat more palatable than b. and c. as a practical matter,
suffers from exactly the same flaws as options b. and c. individually. Despite the
Agency's strident claims to the contrary, these standards simply are not based on
technology performance in the same manner as traditional BDAT standards, sharing
only the most remote connections with technology. Nor are the standards related in
any way to the performance achievable using the treatment methods the agency seeks to
encourage. As the EPA notes copiously in defending its bias in favor of non-
incineration technologies, these technologies can generally meet the UTS standards. If
that is true, the multiplier-based standards can not be viewed as representing the levels

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achievable by the technology. We suspect that the Agency's failure to develop
treatment standards based on the actual performance of alternative technologies arises
principally from the fact that the Agency lacks enough data on the subject to stand up
to its own BDAT standard-setting methodology. Thus there is no sense in which the
proposed standards are not arbitrary. Instead the standards reflect a plain political
desire on the EPA's part to facilitate the use of certain treatment methods. Having
arrived at that list, the Agency appears to have then picked a range of levels within
which it believed its preferred technologies could perform. And it's a broad range.
covering several hundred ppm in some cases. Such politically motivated decision-
making is simply an affront to the public-health-enhancing standard that Congress
plainly and carefully set out in section 3004(m).

The Agency suggests that the standards proposed for soils containing hazardous wastes
continue the process of developing tailored treatment standards, such as the previously
promulgated treatment standards tailored to multi-source leachate and to hazardous
debris. This statement is misleading because there is little or no similarity between the
standards developed for multi-source leachate and debris and those proposed for soils.
A brief comparison serves to illustrate this point.

The tailored standards for multi-source leachate grew out of the substantial difficulties.
primarily encountered at subtitle C hazardous waste landfills, in applying the derived-
from rule to leachate collected from on-site leachate collection systems. To resolve
litigation over the matter, the Agency reconsidered the standards originally adopted in
the First Third final rule, electing ultimately to create an entirely new waste code for
multi-source leachate and undertake to adopt standards for the treatability group thus
created. The final standards for F039 were based on evaluation of volumes of
treatability data accumulated for the entire list of BDAT constituents (more than 200 of
them). Those standards were based directly on the best performance of incineration for
non-wastewaters. In other words, multi-source leachates must be treated to those levels
demonstrated achievable by using the best-performing available incineration.

The final technology-based treatment standards for hazardous debris represent a
response to the special matrix difficulties presented by debris and the virtual
impossibility of developing numerical standards for the wide variety of debris wastes
that might be generated. Final standards for debris are of two general types- those
focusing on removal of all hazardous constituents from the debris and those focusing on
immobilizing hazardous constituents by affixing them solidly to the debris. In
promulgating the removal-based (e.g., destructive and extractive technologies), the
EPA determined that the technologies established were appropriate because they would
remove all constituents from the debris prior to disposal. Thus these standards compel
treatment for debris such that the treated debris presents no threats to human health or
the environment. Treatment to meet the extractive performance standards theoretically
creates a debris residue that the EPA lacks authority to further regulate under HSWA.

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For those extractive technologies the Agency determined could not be definitively
shown capable of removing all constituents from debris (in footnote: Those
technologies cited by the Agency as unable to adequately perform included "thermal
desorption. biodegradation, and chemical destruction." 55 Fed. Reg. 37,228 (1992).
Curiously, these are the same technologies that the EPA touts in the proposal as
"innovative and superior" to high technology combustion. See, e.g., Proposal at
48124.), the final rules require an equivalency demonstration showing for the particular
debris that the technology applied removes constituents to the same extent as other
removal technologies. In short, the final rules for debris require treatment to a
standard more stringent than the minimize threat statutory standard. The standards
require treatment to a level below which the debris is determined to pose no hazards to
human health and the environment. Where doubt exists about the effectiveness of a
technology in achieving this standard, specialized demonstrations are required to assure
public health and environmental protection.

The tailored standards for multi-source leachate and debris can be viewed as
requiring treatment to the best levels achievable using available technologies.
recognizing the particular difficulties encountered in applying traditional
characterization schemes and compliance verification mechanisms to these wastes.
Conversely, the standards proposed for soils represent by the Agency's own admission.
less that the level achievable by the best performing technology. Thus the EPA
proposes to set standards at levels above those that minimize threats to human health
and the environment. This result is, of course, plainly prohibited by statute unless the
Agency undertakes, as it did for multi-source leachate, to establish a treatability group
encompassing soils and develop standards that are truly tailored to the special properties
of soils. Whereas the tailored standards for multi-source leachate and debris are based
on particular waste properties and represent, in each case a rational system for attaining
and assuring the highest degree of environmental and public health protection possible
using existing available technologies, the standards proposed for soil fly in face of that
objective. Under any of the schemes proposed, soils treated using so-called innovative
technologies need not be treated to the lowest achievable levels set based on data from
incineration even where data reviewed by and in possession of the EPA indicate the
non-combustion technologies can achieve those low levels. (In footnote: See Proposal,
at 48.124. 'Analysis of the available soil treatability data has revealed that innovative
technologies can generally achieve the universal standards.' Id. What this means is
that, generally, the EPA's standards violate the clear mandate in HSWA to minimize
threats through protective standards. 42 U.S.C. § 6924(m)(l) (1988). This breach
from HSWA's clear policy choice is obvious even if there can be rational debate about
the standards for those constituents unbeatable by so-called innovative technologies.) It
is plain from the Agency's justification that the proposed standards are not 'tailored' to
maximize environmental protection in the same manner as those tailored standards set
for debris or multi-source leachate. The EPA's characterization equating its proposed
standards for soil with those previously established for multi-source leachate and debris

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are. therefore, misplaced. In fact, the proposed standards for soil under any of the
three alternatives suggested in the Proposal provide reduced overall public health and
environmental protection.

What then, are the standards 'tailored' to achieve. There is no suggestion in the
proposal that stringent, protective standards based on incineration established for
individual wastes are inappropriate for soils. (In footnote: Nor is there any suggestion
that the generally less stringent organic universal treatment standards are inappropriate
or unachievable. In fact, the Agency's own discussion controverts such a proposition.)
Indeed, the Agency would, we suspect, find it quite difficult to argue that the less
protective standards proposed are better than more protective standards from a public
health and environmental protection point of view. The Agency makes no suggestion
that there exists inadequate treatment capacity capable of achieving more protective
standards. Indeed, the Agency cites the abundance of combustion treatment capacity
elsewhere in the proposal to justify its decision to refrain from granting a national
capacity variance for certain toxicity characteristic wastes. There is no suggestion that
matrix effects interfere with treatment in combustion units. Indeed, the 'low and
moderately contaminated soil' (In footnote: USPCI is uncertain what constitutes low or
moderate contamination. We assume the concept is of some importance, however, give
the Agency's assertion that "[a] common sense approach would indicate that
incineration would be practical only for 'hot-spots'." Proposal, at 48,129.) that the
agency claims predominates would be treated quite effectively to the lowest achievable
and most protective standards regardless of matrix interferences." (USPCI, CS2P-
00171) [Also see Chapter 27.A.]

"There is no basis hi RCRA for the sort of policy choice the EPA will make by
applying an arbitrary factor to already achievable treatment standards to 'assure
achieveability' by technologies unable to meet stringent environmental standards. (In
footnote: For example, the proposed standards under scenario A (standards set at 10 X
UTS) allow disposal of soils containing as much as 1600 parts per million of acetone to
be disposed or left substantial amount of acetone. The NIOSH recommended exposure
limit for acetone is 250 ppm (lOhour TWA), e.g., United States Department of Health
and Human Services, Pocket Guide to Chemical Hazards 42(1985). Under the 90%
reduction scenario (scenario B), the value could be higher depending on the initial
chemical concentration.) The clear congressional message in the HSWA demands that
the EPA set standards to minimize threats to human health and the environment by the
most protective available means, including the most protective treatment standards
achievable using existing technologies.

We recognize that whether a particular technology is appropriate to treat a particular
waste is germane to the determination whether that technology should be viewed as
BDAT. It is not our intention to dispute the Agency's general consideration of that
factor. However, it is our view as a matter of policy that this factor should not become

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a sole springboard to relax standards achievable by the best demonstrated available
technology in favor of less capable technologies. Rather, the standards should be set to
encourage advancements in less capable technologies (e.g., those EPA terms
innovative). Only through such pace setting standards can the Agency assure a
continuing high degree of public health and environmental protection while nurturing
improvements in our waste management system. Unfortunately, the proposed soil
standards are likely to have the opposite effect. By setting arbitrary standards at limits
known to be less than the most protective readily achievable, the Agency fixes
technology at its current level and removes incentives for advancements. We believe
such a marketplace without incentives to excel will become mediocre at best before
long. HSWA demands, and the public deserves, better from Agency policy." (USPCI.
CS2P-00171)

• "In short, we believe that the proposed soil standards, if finalized, will violate RCRA
section 3004(m). Moreover, the standards have the appearance of an administrative
attempt to cure problems with CERCLA by employing RCRA to augment the Agency's
ability to control decision-making at response sites. In our view, this represents a poor
policy choice because it attempts to gut the essential mandate of HSWA and insert in its
place a relaxed system of regulation that will add nothing to human health or
environmental protection. Accordingly, we encourage the EPA to withdraw the
Proposal and undertake to set standards for soils that are based on something other than
a guess. Because soils are, in fact, among the most treatable wastes and because the
EPA, itself, admits that its preferred technologies can meet more protective standards.
we respectfully suggest that the Agency leave the existing regulatory system unaffected
(except as otherwise noted above) and focus its efforts on more immediate problems."
(USPCI. CS2P-00171)

• "For example, the proposed standards under scenario A (standards set at 10 x UTS)
allow disposal of soils containing as much as 1600 parts per million of acetone to be
disposed or left on site in conformance LDRs. By any measure, that is a substantial
amount of acetone. The NIOSH recommended exposure limit for acetone is 250 ppm
(10 hour TWA), e.g., UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES. POCKET GUIDE TO CHEMICAL HAZARDS 42 (1985).
Under the 90% reduction scenario (scenario B), the value could be higher depending in
the initial chemical concentration." (USPCI, CS2P-00171)

Response: This commenter. the operator of hazardous waste incinerators, strongly objects to
tailored LDR treatment standards for contaminated soil and recommends, instead, that EPA
continue to require that contaminated soil achieve treatment standards based on the
performance of incineration. EPA disagrees. As the Agency has indicated many times.
notwithstanding that it is possible to treat contaminated soil using combustion, the Agency's
longstanding policy is that it is generally unsuitable or impractical from a technical standpoint
(and hence inappropriate, in the language of 268.44) to combust large volumes of mildly

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contamianted soils. See. for example. 55 FR at 8760 and 8761 (March 9. 1990) and 61 FR
18806-18808 (April 29, 1996).

The Agency has found that the soil treatment standards promulgated today minimize threats
within the meaning of RCRA Section 3004(m) considering both the distinct treatability issues
posed by contamianted soil and the distinct policy issues posed by the remediation context
under which most contaminated soil is managed. This issue is discussed further in the
preamble to today's final rule. However, EPA notes that the levels selected are not arbitrary,
but rather are based on the possible values that could have been selected as achievable based on
the performance of non-combustion technologies, of careful study of a data based containing
thousands of data points on performance of different technologies treating contaminated soils.
This approach provides the same type of measure of objective performance as other
technology-based standards.

• "The generator should have the flexibility to select a treatment standard option, on a
site-by-site basis, as outlined in the proposed 40 CFR 268.47(b) (page 48200).

Range of standards with a ceiling one order of magnitude above the universal standard
provided 90% treatment occurs. A set treatment standard is sufficient to ensure proper
management of the hazardous media. Each batch of contaminated media at an
individual site will vary in contaminant concentration. Even though the contaminated
media would be treated to the same target value, there would be considerable
administrative difficulty in demonstrating and documenting 90 % treatment was
achieved for each lot of media treated.

Achieving 90% treatment with no ceiling. This option has the greatest potential to
drastically enhance flexibility of remedial actions. However, a treatment standard
should specify a constituent concentration and not eh process treatment efficiency. The
implementation will be extremely subjective through the selection or treatment
processes. There would be difficulty in demonstrating and documenting 90% treatment
was achieved for each lot of media treated. Final disposal practices would be a key
factor.

Range of standards with a ceiling one order of magnitude above the universal standard.
This option is recommended as the best approach. The option establishes a set standard
and is the easiest to implement." (Department of the Army, CS2P-00160)

Response: On April 29, 1996, in the HWIR-Media proposal, EPA proposed a revised soil
treatment standard of 90 % reduction in constituent concentrations or ten times the universal
treatment standard, whichever is higher. 61 FR 18805-18813. This is commonly referred to as
"90% capped by lOxlJTS." EPA is finalizing the 90% capped by lOxUTS treatment standard
in today's final rule.
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Consistent with the commenter's recommendation EPA has provided an opportunity for site-
specific, risk-based standards to cap the technology-based soil treatment standards if such risk-
based standards are shown to minimize threats within the meaning of RCRA Section 3004(m)
and are approved through a variance process. The so called site-specific, risk-based treatment
variance is discussed in detail in the preamble to today's final rule.

• "As indicated in the earlier Departmental response to the proposed rule. DOE generally
supports the development of Universal Treatment Standards (UTS) in that they will
provide consistent and equitable concentration-based treatment standards. However.
when standards are based on constituent concentration levels, compliance monitoring
efforts involving radioactive mixed waste (RMW) streams can be problematic. These
problems can be best addressed by adoption of a flexible regulatory approach that
accommodates both concentration-based standards and alternative treatment standards
established as specified technologies. As reiterated in the attached comments. DOE
believes that there is a particularly compelling argument to be made for such flexibility
in the case of treatment standards for certain RMW-contaminated soils.

Of the three possible approaches proposed by EPA for establishing treatment standards
for hazardous soils, the Department considers the second approach (i.e., a range of
standards with a ceiling one order of magnitude above the UTS) to be the most
appropriate. Since this approach requires treatment to within a specified range of
constituent concentrations (regardless of original concentrations), it would establish a
consistent basis for all hazardous soils and will cause the least confusion relative to
implementation. All three of the proposed approaches, however, will require
considerable analytical testing both before and after treatment. Notwithstanding its
support for the second approach as the best of the three that EPA proposed, DOE
recommends that EPA incorporate specified technology standards as an alternative for
the treatment of certain hazardous soils (e.g., RMW-contained soils)." (DOE, CS2P-
00161)

• "EPA has previously recognized the merits of specified technology standards as
evidenced by its decision to establish specified technologies for hazardous debris based
on the type of debris and type of contaminants present (August 18, 1992 final rule; 57
FR 37194). DOE supported this decision and observed that the flexibility provided by
that approach is essential, considering the wide variability in form, matrix, constituent
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concentrations, and other properties of contaminated debris.: DOE has previously
urged EPA not to limit itself to setting only concentration-based standards or only
technology-based standards.3 Instead. DOE has argued that the regulations should
accommodate both alternatives in order to allow maximum flexibility. DOE believes
that these arguments are especially valid in regard to RMW-contaminated soils.

As stated in our November 15, 1993 response, large volumes of contaminated soil will
be generated within the DOE complex as a result of continuing environmental
restoration and waste management activities. At the Hanford site alone, estimates of
the amount of contaminated soil and overburden approach 110,000,000 metric tons.
The proposed LDR for hazardous soil will have a substantial impact on site cleanup and
waste management efforts. Therefore, with regard to the proposed rule, DOE urges
EPA to allow an approach that uses the proposed UTS as a "base" and, alternatively, to
specify appropriate treatment technologies that can be used for hazardous soils which
pose analytical difficulties (e.g., RMW-contaminated soils)." (DOE, CS2P-00161)

'Although EPA has proposed three approaches for establishing treatment standards for
hazardous soils, each of these approaches are based on technology performance and do
not account for risk. In the proposed rule, EPA asserts that the difficulties involved in
setting risk-based standards are both formidable and controversial. This point is well
taken. However, RCRA requires that LDR treatment standards be established that
minimize threats (both short and long-term) to human health and the environment. It
has not been shown that the technology-based treatment standards proposed in this
notice are either necessary or effective relative to minimizing such threats.

Although EPA indicates that its preference is to establish risk-based levels to cap the
extent of hazardous waste treatment, the Agency has instead continued to utilize a
technology-based approach to develop the proposed UTS (which also serve as the basis
for the proposed soil treatment standards). Simply because a technology exists that can
produce a very low hazardous constituent concentration does not mean that this level
must be attained in order to minimize threats to human health and the environment.
This approach to rulemaking fundamentally is not "necessary to implement the court's
opinion" in Chemical Waste Management v. EPA since it is not based on risk. EPA's
continued reliance on a technology-based approach will have the unfortunate effect of
'See DOE Comments. Proposed Rule regarding LDRs on Newly Listed Wastes and Contaminated Debris. Item
V.F.I, p.20 (02/24/92).

3See DOE Comments. Notice of Data Availability regarding Response to Court Decision. General Comment
8, p.3. and item II.B. 1.1.. pp.6-7 C03/04/93); DOE Comments. Advanced Notice ot'Proposed Rulemaking i ANPRM)
regarding LDRs. Potential Treatment Standards for Newly Identified and Listed Wastes and Contaminated Soil. Item
III.B. 1 .a.3. pp. 19-20 (12/09/91); DOE Comments. ANPRM regarding LDRs. Potential Treatment Standards for Newly
Identified and Listed Wastes and Contaminated Debris, Item III.A.2, pp. 5-6 (07/29/91).

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delaying the establishment of risk-based levels that represent minimize threat levels."
(DOE. CS2P-00161)

'DOE supports the development of standards tailored specifically to contaminated soil
media. Such tailored standards are needed to accommodate concentration levels
achievable when treatment technologies are applied to soils since these levels may
differ from the levels achievable when the same technologies are applied to other waste
matrices. Tailored standards are needed which provide the flexibility to adopt practical
treatment strategies for remediating contaminated soil media. These standards should
account for the fact that hazardous soils are contaminated with diverse hazardous
constituents in highly variable concentrations and matrices. Tailored treatment
standards are also needed to promote the development and deployment of innovative
technologies for soil treatment.

DOE believes that generators and treaters of hazardous soil should be provided with the
flexibility to select the most appropriate treatment option for their specific hazardous
soil in light of site-specific conditions. Consequently, DOE supports the promulgation
of treatment standards that are "based on levels attainable by a variety of technologies.
including innovative technologies." (DOE, CS2P-00161)

"It is unclear from the regulatory language proposed in §268.47(b) whether EPA is
proposing to make all three of these approaches available for hazardous soil, or whether
only one of them will be selected for final promulgation. The Agency's intent with
respect to the implementation of these three regulatory approaches needs to be clarified.

EPA states that the treatment standards proposed under the three approaches "are based
on levels attainable by a variety of technologies, including innovative technologies" (58
FR 48122). As explained in the proposed rule, the primary objective in regards to
developing an LDR program for hazardous soil is to set treatment standards that are
appropriate for soil. Each of the three proposed approaches offers a degree of
flexibility in choosing suitable treatment methods for hazardous soils. DOE fully
supports this primary objective and urges the Agency to adopt a regulatory scheme that
facilitates the use of different technologies and allows the selection of the most
appropriate technology for hazardous soil at a particular site.

Of the three proposed approaches, DOE believes that Approach 2 (range of standards
with a "ceiling" one order of magnitude above the UTS) is the most technically sound.
For the reasons outlined in the comments which follow, the Department favors this
approach over either Approach 1 or 3 (see discussions in response to sections
Vn.C. 1 .a-c). However, all three of the approaches proposed will require considerable
analytical testing, both before and after treatment is conducted. Such requirements to
not take into account the potential analytical difficulties that can be encountered when
dealing with RMW-contaminated soils. Thus. DOE believes that EPA should expand

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the proposed regulatory scheme to include appropriate specified technology treatment
standards for certain hazardous soils as an alternative to the proposed approaches. Such
an alternative wold be similar to the treatment standards established for hazardous
debris in 40 CFR 268.45. Please refer to the comments provided in the sections below
for a more detailed discussion of this concept.

As indicated in the Departmental comments submitted previously in response to the
proposed rule13 (and in a number of other previously submitted DOE comments14).
analyzing RMW for low concentrations of hazardous constituents can be very difficult
due to radiological dose and safety considerations that dictate the use of special sample
collection devices and alternative sample sizes. Under each of the three proposed
approaches the UTS would function as "base" standards, and compliance monitoring
relative to the 90 % treatment requirement would be necessary under Approach 1 and 3.
Consequently, such handling difficulties will be encountered under any of the three
approaches when certain RMW-contaminated soils are sampled to verify compliance
with the proposed numerical standards or constituent reduction requirements.

As stated in response to the October 24, 1991 ANPRM,15 DOE firmly believes that
generators and managers of hazardous soils should be provided with the flexibility to
select the most appropriate treatment option for their particular hazardous soil waste
streams. Recognizing the difficulties involved with meeting potential sampling and
analysis requirements associated with RMW-contaminated soil and the need for a
flexible regulatory approach for selecting the most appropriate treatment methods. DOE
recommended that EPA specify a number of acceptable technologies for categories of
hazardous soil, and in particular for RMW-contaminated soils (following the same type
of regulatory approach promulgated for hazardous debris). With respect to certain
RMW-contaminated soils. DOE believes that there is a valid need to include specified
technologies as part of the regulatory framework. For certain unique RMW streams
where verifying compliance with the UTS or the constituent reduction requirement will
be extremely problematic, DOE again urges the Agency to establish appropriate
1 See DOE Comments. Proposed Rule regarding LDRs for Newly [dentified and Listed Wastes and Hazardous
Sol. General Comment ff2. pp.2-4. item III.A.l. pp. 8-11. and Item IV.A.2. pp. 35-36 (11/15/93Y

14See DOE Comments. Interim Final Rule regarding Treatment Standards for Certain Ignitable and Corrosive
Wastes. General Comment 2, pp. 2-3. and item III.A.L, pp. 12-13 (07/09/93, DOE Comments. Notice of Data
Availability regarding Response to Court Decision. General Comment 8, p.5, and Item II.B.l.L. pp. 6-7 (03/04/93V.
DOE Comments. Proposed Rule regarding LDR Treatment Standards for Newly Listed Wastes and Contaminated Soil.
item III.B.I. pp. 11-17. Item III.B.4. pp.21-22. and item IV.D.. pp. 27-29 (12/09/91); DOE Comments. ANPRM
regarding LDRs. Potential Treatment Standards for Newly Identified and Listed Wastes and Contaminated Debns. Item
III.A.2. p. 5 (07/29/9IV. and DOE Comments. ANPRM regarding LDRs. Potential Treatment Standards for Newiv
Identified and Listed Wastes and Contaminated Debns. General Comments, p. 1, and Item II.D.c. p. 7 (06/28/91 i

15See DOE Comments. ANPRM regarding LDRs. Potential Treatment Standards for Newly Identified and
Listed Wastes and Contaminated Soil. Item IV.D. pp. 27-28 (12/09/91).

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specified technologies as alternatives that can be employed in lieu of the proposed
approaches.

The following discussion elaborates on specific sampling and analytical difficulties
associated with RMW. DOE has encountered significant difficulties in meeting the
Test Methods for Evaluating Solid Waste Physical/Chemical methods (SW-846)
sampling and analysis requirements for RMW, and has experienced similar difficulties
associated with RMW-contaminated soil. The difficulty and costs associated with
sampling and analysis increase as the constituent concentration levels that need to be
detected are lowered and as radiological exposure increases. Some of the analytical
difficulties and costs associated with sampling and analysis of RMW include:

• Sample collection: SW-846 requires the use of specific sample collection
equipment and containers that may not be appropriate for RMW-contaminated
soil. Robotics may be needed to collect samples of highly radioactive wastes.
EPA required sample volumes cannot be obtained for high dose RMW because
these samples volumes would result in excessive radiation exposure to personnel
collecting the samples and conducting these analyses.

• Storage: Special sample storage containers must be used to address radiological
hazards. Refrigeration of samples cannot be achieved to EPA protocol in all
instances because samples must be placed in pre-designed lead-lined shipment
containers that to not lend themselves to cooling; refrigerated transport vehicles
for radioactive material are not currently available. Once in the laboratory,
refrigerated storage of samples is also difficult. The lead pigs used to contain
each sample are very heavy, restricting the number of samples that can be
stored in a refrigerator. The refrigerator itself must also have adequate
shielding.

• Interference due to the radiological matrix: The presence of high radiation fields
can interfere with organic and inorganic constituent analysis, resulting in
inaccurate concentration data..

• Manipulating high activity RMW: Analysis must be conducted in hot cell
laboratories. The use of manipulators is very time consuming, and as a result it
is often difficult to conform to the holding times specified in SW-846.

• Limited analytical capacity/capability: Laboratory capacity as well as capability
for handling RMW organics is limited. The shortage in capacity is most acute
for higher activity wastes. Labs are often backlogged with samples awaiting
analysis.
Radiological samples may require analysis in vented hoods or in remotely
handled hot cells, depending upon the toxicity of the radionuclides and the

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complexity of the chemical operation ('e.g., dry or wet). With regard to the
Toxicity Characteristic leaching Procedure (TCLP). for example, some low-
level RMW (e.g., uranium-235. -236 or -238) can be processed in a
conventional laboratory that has health physics monitoring if the toxicity levels
of the radionuclides are low enough. Other low-level waste with higher toxicity
(e.g.. strontium-90) may require processing in a radiochemicai hood. For
transuranic (TRU) waste (e.g.. piutonium-bearing waste), the TCLP will
generally be run in a glove box, while high-level waste must be processed in a
hot cell. Once a gas chromatograph/mass spectrometer (which costs between
$120.000 to $150.000 a piece) becomes "hot" due to exposure to radionuclides
in samples, it must be dedicated to analysis of radioactive materials only.

• Waste disposal: Protective clothing and equipment used during sampling
activities must often be handled as low level radioactive waste (LLRW).
Contaminated equipment (e.g., glassware) used in the laboratory must be
disposed of as LLRW. The costs associated with cleanup and waste disposal
after analysis are substantial.

• Exposure: DOE's health and safety program policy is to maintain exposures As
Low As Reasonably Achievable (ALARA). Not only are there opportunities for
exposure during collection, handling and transport of samples, but there are also
opportunities for exposure during analysis.

Due to the unique difficulties associated with RMW sample collection, handling and
analysis, DOE urges EPA to consider expanding the proposed regulatory scheme for
hazardous soils (i.e., in which the UTS would function as "base" standard and percent
reduction may be required) to include an additional option for problematic RMW-
contaminated soil. The additional option would require treatment using acceptable
specified technologies with demonstrated performance and/or design and operating
standards as an alternative to the concentration-based standards being proposed in this
notice. Allowing the option of specified technologies as an alternative for RMW-
contaminated soil would alleviate the analytical difficulties and reduce worker
exposure, since LDR verification (i.e.. testing) relative to concentration based
standards would not be required.

DOE suggests that consideration be given to identifying specific treatment technologies
as the Best Demonstrated Available Technologies (BDAT) for particular categories
9i.e., treatability groups) of hazardous soil, with the choice of which technology to use
being left up to the generator or treater managing the soil. The specific treatment
methods could be selected from the nine general technologies identified by EPA as
demonstrated and available for treating hazardous soil - (1) biological treatment. (2)
chemical extraction, (3) dechlorination. (4) high-temperature metals recovery, (5)
solidification/stabilization /immobilization. (6) thermal desorption, (7) thermal

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destruction. (8) vitrification, and (9) soil washing (58 FR 48128). Appropriate
treatment technologies contained within the soil treatment database (i.e., those listed by
the four-character alphanumeric codes in Table I on pp. 58 FR 48128-9) could be
recognized as acceptable treatment methods for specific hazardous soil categories.

Performance of the specified technology or similar technology with equivalent
performance characteristics would be confirmed and documented through treatability
testing prior to remediation operations. This approach would obviate or eliminate the
need to conduct analyses of the treated soils during the remediation operations, thereby
minimizing workers exposure to radiation." (DOE, CS2P-00161)

Response: EPA appreciates this support for soil-specific treatment standards. Regarding the
suggesting that EPA express soil treatment standards as specific technologies for certain types
of contaminants, EPA disagrees. The Agency notes, that, like any other LDR treatment
standard, the soil treatment standards may be achieved using any technology that does not
constitute impermissible dilution. Given the range of soil types and contaminant combinations
that may be encountered in the field, the Agency believes this flexibility is especially important
for contaminated soil.

Regarding the suggestion that EPA allow consideration of risk in developing soil treatment
standards, the Agency, in part agrees, and, in today's final rule has established a site-specific.
risk-based minimize threat variance which may be used to establish alternative soil treatment
standards that are higher than the technology-based standards under appropriate circumstances.

Regarding the concerns about the difficulties associated with radioactive and hazardous wastes.
the Agency is not, at this time persuaded that additional treatment standards specific to this
type of contamiation is appropriate. However, in situations where, because of sampling or
other issues, compliance with the soil treatment standards would present unacceptable risks to
on-site workers, the Department could apply for an LDR treatment variance under 40 CFR
268.44(h), based on an argument that the LDR treatment standards were inappropriate.

• "Under the proposed approaches for setting treatment standards for hazardous soils, the
UTS are proposed a Section as "base" standards. The proposed UTS for organic
constituents are based on total composition, while the metals standards for
nonwastewaters are expressed as levels measured in TCLP extract. For certain
hazardous soils (i.e., soils containing both organic and metal constituents), this means
that two different analytical procedures will have to be used. Furthermore, the UTS
for organics is based on total concentration rom a grab sample, while the TCLP
required for nonwastewater metals will need to be performed on a composite sample.
This regulatory approach will result in additional (and potentially unnecessary)
sampling and analytical costs associated with retrieving different sample types and
performing different analysis for hazardous soils contaminated with both organic and
metallic constituents. Given the unique and heterogeneous characteristics of soils (and

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of many other wastes for that matter). EPA should provide a technical justification for
its basing the UTS for organics (and proposed universal metals standards for
wastewaters) on total composition but basing the UTS for nonwastewater metals on
TCLP levels. This difference appears unnecessarily burdensome for wastes containing
organic and metal constituents.

In some scenarios, depending on particular characteristics of the waste and the intended
treatment technology, an analysis of only a TCLP extract concentration for each
contaminant may be sufficient for measuring the level of treatment (i.e.. establishing
treatment standards using TCLP levels in addition to those proposed). DOE believes
that setting TCLP standards for organics as well as all metal wastes is particularly
important with respect to the management of RMW. Inclusion of TCLP treatment
standards for organics would be especially useful relative to the treatment of certain
RMW using appropriate immobilization technologies. This would allow the generator
or treated the option of either treating to the TCLP extract concentration or the total
concentration standard for nonwastewaters depending on the treatment method utilized.
Exclusion of a TCLP treatment standard for nonwastewater organics. as proposed, will
eliminate utilization of technology developments in the area of stabilization of organic
constituents." (DOE, CS2P-00161)

Response: EPA has clarified in the preamble to today's final rule that the type of sample
used to measure compliance with the soil treatment standards is dependent on the treatment
technology applied. That is. for technologies that stabilize or immobilize hazardous
constituents, compliance should be monitored in TCLP extract; for technologies that remove
or destroy hazardous constituents, compliance should be measured using total constituent
concentrations.

• "The first approach proposed by EPA is a range of standards with a "ceiling" one order
of magnitude above the universal standard, provided 90% treatment of each constituent
subject to treatment is achieved. Under this approach, if the generator or treater of
hazardous soil achieves a treatment standard above the universal level (but no higher
than the ceiling), they must document that at least 90% treatment has been achieved.

DOE does not support this approach for the following reasons.

Inconsistent and Inequitable Treatment Standards

Although the treatment standards under this approach may meet the objective of
minimizing threats to human health and the environment, this approach will be
inequitable and economically impractical. For example, consider the case of two areas
of soil contaminated with methylene chloride where the first area has an initial
concentration of 450 mg/kg and the second area has a concentration of 45 mg/kg. The
UTS is 30 mg/kg, so the ceiling would be 300 mg/kg (30-300 mg/kg range). For the

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first area . the soil would have to be treated to a concentration of not greater than 45
mg/kg, which is within the range, and then it could be land disposed. However, even
though the initial concentration of the soil from the second area is akeady within the
range, and is the concentration of the soil from the first area after 90% treatment.
the soil from the second area must still be treated to reach a concentration of not
greater than 30 mg/kg before it can be land disposed. This is inequitable and also
economically impractical given the substantial cost of treating soil whose hazardous
constituent concentration levels are already low.

This approach in effect, would penalize those managing soils contaminated with low
concentration levels by requiring them to treat to lower levels than those they heavily
contaminated soils. Requiring that wastes with lower levels of constituents be treated
to lower constituent concentrations 9down as far as the numerical UTS) would
potentially force treatment to standards below acceptable risk levels. If ten times the
standard is acceptable from a risk standpoint (an argument this approach supports), then
the expenditure of limited resources to achieve additional treatment beyond this point is
unnecessary.

Situations could arise where the initial concentration of a constituent was only slightly
above the ceiling concentration, and would thus require a 90% treatment. If this
efficiency could not be achieved, the soil would be subject to the base UTS
concentration, which also might be unattainable, leaving a treatability variance as the
only alternative.

Complex Approach and Cumbersome Documentation

Determining compliance relative to this approach has the potential of becoming overly
complex, especially for those soils with multiple constituents at varying concentrations.
Documenting at least 90 % treatment is likely to be cumbersome to implement, and
without any significant improvement in regards to minimizing threats to human health
and the environment. The additional paperwork and associated calculations would be
prone to errors and would not be as straightforward as achieving a numerical or
technology-based standard. The complexity associated with compliance evaluation for
various constituent concentrations would be time consuming and difficult to assess."
(DOE, CS2P-00161)

"Of the three approaches proposed by EPA in the proposed rule, the Department
considers the second approach for establishing treatment standards to be the most
appropriate for soils. Since this approach requires treatment to within a specific range
of constituent concentrations (regardless of original concentrations), it establishes a
consistent basis for all hazardous soils and will cause the least confusion relative to
implementation. As EPA states, only one number (or range) per constituent would
function as the treatment standard independent of treatment efficiencies (58 FR 48125).

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Requiring that treatment achieve levels at or below the ceiling irrespective of treatment
efficiency would provide the greatest treatment flexibility while limiting threats to the
environment. This approach would simplify compliance verification and
determinations related to treatment efficiencies, require fewer analyses by the regulated
community, and would constitute a more cost effective regulatory program. As noted
in the preamble, this approach has the flexibility to allow greater numbers and types of
innovative technologies to be applied to remediation. For instance, it would not
preclude solidification/stabilization technologies from being used for organic
contaminants. Also, the other proposed approaches have the potential to create
situations at large remediation sites where different treatment requirements would apply
to different areas of contamination.

However, notwithstanding its support for this approach s the best of the three that EPA
proposed. DOE believes and recommends that EPA should also allow specified
technology standards as an alternative for the treatment of hazardous soils. As
discussed earlier in these comments (see General Comment #2 and section vn.C) and
in a number of previous DOE responses to LDR-related rulemakings, DOE is
concerned about the application of concentration -based standards to certain RMW
streams , including RMW-contaminated soils. In order to confirm compliance with the
low concentration-based standards associated with any of the three proposed
approaches, considerable sampling and analysis will need to be conducted. In the case
of RMW-contaminated soils, this sampling and analysis will pose radiological dose and
thus human health issues. Therefore. DOE again urges EPA to minimize this potential
threat to worker safety by adopting specified technologies as the treatment standards for
certain hazardous soils as alternatives to the concentration-based treatment standards
(and requisite sampling and analysis requirements) inherent to the proposed approaches.

Large volumes of information regarding the treatability of contaminated soils should be
available from the CERCLA program, which could be used as a basis for establishing
technology based treatment standards for hazardous soils. Additionally, this is the
basic approach the EPA discusses in "Obtaining a Soil and Debris Treatability Variance
for Remedial Action." Superfund LDR Guide #6A (Superfund Publication: 9347.3-
06FS). This guidance provides a list of technologies that are capable of providing a
variety of hazardous constituent reductions ranging from 90 to 99.99%. As indicated
in the guidance, the technologies identified are those that can attain the alternative
Treatability Variance levels. Thus, Doe believes that there is sufficient information
regarding soil treatment technologies and their corresponding toxicity reduction
efficiency to allow the EPA to establish specified technology treatment standards for
hazardous soil.

DOE further believes that specified technology treatment standards would provide a
cost savings to the regulated community by eliminating the need for performing
additional analytical testing to demonstrate compliance with the proposed concentration-

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based treatment standards. The EPA could also take a similar approach as was taken
for hazardous debris with regard to treatment technologies that would allow a waste to
be removed from RCRA Subtitle C regulation. EPA could specify soil treatment
technologies that provide sufficient reduction in toxicity, mobility and/or volume
(TMV) of waste sufficient to allow such waste to exit RCRA Subtitle C regulation after
treatment. EPA could specify additional requirements, such as contingent management
options, for treatment technologies. Hazardous soils treated by these types of
technologies would either remain subject to RCRA Subtitle C regulation or be
exempted provided they were managed in accordance with the specified contingent
management standards.

The Agency solicits comment on how waste would still be incinerated if this
approach were promulgated.

DOE agrees that this approach likely would "increase the number and type of
innovative technologies capable of achieving the treatment standards" for hazardous
soils. Therefore, all things being equal, a greater reduction in the use of incineration
for treating hazardous soils would be realized using this approach in comparison to the
first or third approach. However, considering that the UTS function as the 'base"
standards and that the UTS for organic nonwastewaters are themselves based on the
performance of incineration, this proposed approach (as well as the first and third
approach) may have the unintended effect of encouraging the use of incineration and
discouraging the use of other technologies. Incineration usually results in the complete.
or near complete, destruction of contaminants, except for metals and radionuclides.
Many innovative technologies that are being used to reduce contamination to acceptable
levels cannot achieve the same destruction efficiencies as does incineration. Moreover,
to achieve the proposed treatment levels under certain circumstances (e.g., soils
containing high initial constituent concentrations), incineration may in fact be required
for certain soils.; Since the overall effect of the proposed rule may be to encourage the
use of incineration, the Agency should consider the fact that incineration remains
unpopular with many citizen groups, and is often difficult to permit due to state and
federal moratoriums on permitting incineration facilities." (DOE, CS2P-00161)

"The third approach proposes an unlimited range of values above the universal
standard provided 90% treatment is attained (i.e., no "ceiling value") unless 90%
treatment would treat the waste to a level below the universal treatment standards
(in which case the UTS would have been met).

DOE does not support this approach for the following reasons.

Neither Technically nor Environmentally Sound

This option of requiring 90% treatment without a constituent concentration ceiling

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(i.e.. allowing an unlimited range of values above the UTS provided there is a 90%
reduction) is inequitable. Under this approach, treatment would be required regardless
of the original hazardous constituent concentration level. Implementation of this
approach could result in the land disposal of soils with high levels of toxic constituent.
For example, consider soil from two different areas both of which are contaminated
with methylene chloride concentration of 3,500 mg/kg. This is ten times the initial
concentration of the soil from the second area and is over 100 times higher than the
UTS. This inequity is compbunded by the fact that the soil from the second area would
still have to be treated to a concentration of not greater than 35 mg/kg. On the other
hand, with lightly contaminated soils. 90% treatment may be neither necessary nor
justifiable. Valuable resources could be expended and workers and the public could be
exposed to unnecessary risks in order to achieve a concentration that is asymptotically
approaching zero.

Furthermore, as EPA recognizes with regard to heavily contaminated soils, 90%
treatment may not reduce the threats to health and the environment sufficiently. The
requirement of a 90% reduction for each contaminant by itself, does not appear to be
protective of human health or the environment due to the potential for land disposing
soil containing high concentrations of contaminants. As such, this approach would not
appear to meet the RCRA section 3004(m) criteria that LDR levels be established so
that threats to human health and the environment are minimized.

Effect on Innovative Technologies

Although it could be argued that this approach allows the greatest flexibility in the
selection of technologies, this approach might also act to inhibit utilization of
innovative technologies (especially for heavily contaminated soils). Innovative
technologies often are designed to provide increased effectiveness or to be less costly.
Restricting the treatment requirement to 90% reduction would eliminate the need for
those more effective technologies that could result in reductions of greater than 90%.
The 90% treatment requirement relative to heavily contaminated soils may relax the
standards in a manner that would discourage the development and use of more efficient
technologies.

Definition of Treatment

DOE is concerned that in developing this approach (and to a lesser degree the first
approach) the Agency did not articulate an appropriate methodology that the regulated
community should follow in order to determine "percent treatment". Furthermore, if
such a methodology were articulated (and it would be necessary to do so in order to
provide consistency relative to compliance verification under this approach) it would
complicate the LDR framework for hazardous soils. For example, if a hazardous soil
has tow contaminants, one with a pretreatment contamination level of 100 ppm, and the

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other of Ippm. and the soil is treated to within an order of magnitude of minimize
threat levels, the first contaminant may be reduced to Ippm (99% reduction), and the
second to 0.5 ppm (only a 50% reduction), how shall one determine the value of
treatment? Would the waste be considered to have been treated to 99% or to 50%? In
order to address this concern, DOE believes it would be necessary to adopt a very
rigorous and complex definition of treatment. DOE believes that such a definition
would unnecessarily complicate the LDR program for hazardous soils." (DOE. CS2P-
00161)

Response: EPA appreciates this support for soil-specific treatment standards. On April 29.
1996. in the HWIR-Media proposal. EPA proposed a revised soil treatment standard of 90%
reduction in constituent concentrations or ten times the universal treatment standard, whichever
is higher. 61 FR 18805-18813. This is commonly referred to as "90% capped by lOxUTS."
EPA is finalizing the 90% capped by lOxUTS treatment standard in today's final rule.

The option promulgated today is consistent with the commenter's recommendation in that
further treatment is not required if constituent concentrations drop below lOxUTS.

• "Also in the preamble, the EPA proposes three (3) approaches for developing
technology-based treatment standards. ENRON recommends that the second approach
be used. The second approach is a variation of the first where the range of standards
are one order of magnitude above the universal standards. This approach would
simplify the application of the proposed rule over the other two proposed approaches."
(ENRON, CS2P-00187)

The option promulgated today is consistent with the commenter's recommendation in that
further treatment is not required if constitutent concentrations drop below lOxUTS.

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Comments regarding the (90% capped by iOxUTS option are addressed in the preamble to the
final rule and in the response to comments document.

• "This section includes three proposals for alternate treatment standards for hazardous
soils, based on the Universal Treatment Standards (UTSs) for hazardous wastes.

The MDA favors a combination of the second alternative, which requires that the
concentration of the hazardous constituents in the soils be reduced to levels at or below
ten times the UTS for each constituent, and the third alternative, which requires a 90%
reduction in the concentration of the hazardous constituents, but not below the ;UTS
for each hazardous constituent. The MDA favors an alternative in which the treatment
standard would be the higher concentration of hazardous constituents based on these
two alternatives: 1) the concentration of the hazardous constituents in the soil is equal
to or below ten times the UTS for each constituent, or 2) the concentration following
the reduction of the concentration of hazardous constituents I the soil by 90 %. but not
below the UTS for each hazardous constituent. The MDA recognizes that technology
and cost limitations associated with the treatment of soils containing hazardous
constituents, and believes that the combination of these two alternatives provides the
most realistic requirement for soils containing hazardous constituents." (Minnesota
Department of Agriculture, CS2P-00186)

Response: EPA appreciates the support for tailored soil treatment standrds.

Consistent with the commenter's recommendation EPA has provided an opportunity for site-
specifci, risk-based standards to cap the technology-based soil treatment standards if such risk-
based standards are shown to minimize threats withint the meaning of RCRA Section 3004(m)
and are approved through a varaince process. The so called site-specific, risk-based treatment
variance is discussed in detail in the premable to today's final rule. EPA has also clarified that
furthre treatment is not required once constituent concentrations fall below naturally occurring
background concentrations.

The option promulgated today is consistent with the commenter's recommendation.

The basis for EPA's April 29, 1996 proposed treatment standards is set out in the April 29.
1996 proposal and in the supporting record. Comments on the soil treatment standard options
proposed in 1993 were considered when developing the 90% capped by IOxUTS option.
Comments regarding the (90% capped by IOxUTS option are addressed in the preamble to the

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final rule and in the response to comments document.

• "OHM previously provided comments on the concept of Universal Treatment Standards
for process wastes and we are reiterating these comments here as they apply to
hazardous soils. OHM strongly supports the concept of UTS. as such standards should
ease handling of soils containing commingled wastes and should facilitate bringing new
wastes under RCRA control. However, while we support the concept of UTS, we feel
that the usefulness of the approach is highly dependent on the quality of the values
selected as standards. OHM feels that a reasonably complete consideration of risk
issues should be at least factored into the development of the UTS.

The risk approaches used by RCRA in previous rulemakings (such as the RCRA
Corrective Action Rule proposed in July 1990 and the proposed and withdrawn HWIR
rule) were criticized by both the manufacturing industry and the coalition of
environment groups and fixed-based treatment facilities. The manufacturing sector
generally argued that risk-based values were too strict while the environmental groups
and fixed-based hazardous-waste treaters argued that the rules were too lax. These
criticisms have been fairly easy to make and generally have been valid because of the
overly simplistic approach taken to risk assessment in these proposed rules. Risk
assessment approaches have been developed by the states of New Jersey (under the
Industrial Sites Restoration Act of ISRA) and Washington (Model Toxics Control Act
or MTCA) that are reasonably simple to implement but still are complex enough to
allow consideration of multiple routes of exposure and multiple chemicals. OHM
would recommend that the basis for the values should be consistent with the approach
adopted by these states. Namely, the values should sufficiently conservative to be
health protective for the vast majority of possible situations but not overly conservative.
Variances to the values would then be allowed on a case-by-case basis, with the burden
of proof that an alternative value was appropriate falling to the party requesting
alternative value was appropriate falling to the party requesting the variance. Generally
the burden of proof would rest with regulators, environmental groups, and fixed-based
hazardous waste treaters for more stringent values and industry for less stringent
values. OHM feels strongly that UTS should represent values that have a risk-based
component (technical feasibility and background levels also need to be factors), that are
health protective in the majority of cases, and incorporate some flexibility to account
for inevitable site and waste-specific variation.

The UTS have been developed based on the results of treatment (generally incineration
for organics) of various wastes. The results are developed using a statistical approach
that appears reasonable but the resulting values are overly precise. OHM recommends
that values be expressed in factors of 10 (as are reportable quantities; e.g., 1, 10, or
100 mg/kg) to more accurately reflect that actual uncertainty in the values and in
analytical techniques. Such an approach would: 1) limit the often substantial debate
over scientifically insignificant differences, 2) would facilitate incorporating multiple

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dataseis and approaches (technology-based: risk-based) into the equation used in
selecting an appropriate UTS. and 3) would facilitate incorporation of new treatability
data (i.e.. only if new data suggested a substantial change in treatability would a UTS
value need to be changed).

OHM understands that this issue may appear trivial relative to other issues being
considered in the proposed rule making. However, we suspect that literally millions of
dollars have been spent on addressing the effects of inappropriately precise criteria."
(OHM Corporation. CS2P-L0007)

Response: EPA generally agrees that, generally, it would be preferable to base LDR
treatment standards on risk considerations if this can be done in a manner that adequately
accounts for the uncertainties inherent in making long-term predictions regarding fate of land
disposed hazardous wastes, and which adequately minimize threats to both human health and
the environment, as required by statute. However, the Agency has, to date, been unable to
develop risk-based LDR treatment standards that could be applied at a national level, largely
because of the wide variety of site-specific physical and chemical compositions encountered in
the field.

Consistent with the commenters recommendation EPA has provided an opportunity for site-
specific, risk-based levels to cap the technology-based soil treatment standards provided such
levels are found to minimize threats within the meaning of RCRA Section 3004(m) and are
approved through a variance process. The so called site-specific, risk-based minimize threat
variance is discussed in detail in the preamble to today's final rule.

5.D TREATABILITY VARIANCES (see Chapter 12)

• "Treatahility Variances 58 FR 48127

Requiring a generator to petition the Agency through the Regional Administrator when
hazardous soils cannot be meet the universal treatment standards is overly burdensome
and will hinder remediation efforts.

As the EPA notes in its subsequent discussion regarding contained-in determinations.
where the regulated community is involved in RCRA closures and remedy selections
under RCRA and CERCLA. such activities are subject to considerable Agency
oversight. EPA should apply similar rationale to variance requests and allow the On-
Scene Coordinator rather than the Regional Administrator to grant a variance. The On-
Scene Coordinator would understand the relevant site-specific parameters and be able to
issue a variance with the added expense and burden of additional and unnecessary
paperwork required by the proposed process. Cleanups would not be needlessly
delayed while waiting for the Regional Administrator to act on the variance request.
AWPA requests that EPA rethink its proposal procedure for treatability variances."

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(American Wood Preservers Institute. CS2P-00047)

• "Page 48127. The authority for issuing treatability variances still resides with the U.S.
EPA for those variances that have generic applicability. The ability to grant site-
specific soil variances has been granted to the Regional Administrators. The ability to
grant site-specific variances should be granted to the authorized States that are actually
overseeing the soil remediation efforts as RCRA closures, RCRA corrective actions.
cleanups under CERCLA and State superfund programs." (Association of State and
Territorial Solid Waste Management Officials, CS2P-00091)

Response: EPA agrees that the authority to approve site-specific LDR treatment variances
should be delegated to authorized states. The Agency changed its policy on authorization of
site-specific LDR treatment variances in 1996 and is now actively encouraging states to
become authorized. See generally 62 FR at 64507 (Dec. 5, 1997).

• "The LDEQ feels that treatment should be based on total and amenable cyanides. The
variance mechanism should be able to help facilities that have difficulties with soil
matrices or other analytical difficulties." (Louisiana DEQ, CS2P-00167)

Response: The treatment standards for cyanide do require treatment of both total and
amenable cyanide.

• "Until HWIR Media Reforms are Promulgated. Soil Treatability Variances Will be
Needed to Obtain Relief from Treatment Standards Devised for Wastes

As EPA explained in its Supplemental Notice, when the universal treatment standards
(UTS) - proposed in September 1993 - are promulgated in July 1994. they will replace
the waste specific treatment standards for many listed hazardous wastes. Accordingly,
these standards will apply to soil contaminated with listed hazardous wastes (as well as
soils that fail the hazardous waste Toxicity Characteristic) until specific soil LDR
standards are promulgated in the HWIR rule. As EPA is aware, the majority of the
UTS were developed using incineration as the Best Demonstrated Available Technology
- a technology not considered appropriate for the treatment of soils - which are chiefly
composed of non-combustible inorganic materials. Moreover, over the course of the
past several months, EPA has made a series of public pronouncements through its
Combustion Strategy calling for a reduction in the use of combustion technologies for
the treatment of hazardous wastes and presumably environmental media contaminated
with hazardous wastes. It follows, then, that EPA will look favorably on the use of
alternatives to combustion for the treatment of hazardous soils.

EPA acknowledges in the Supplemental Notice that there may be a need for variances
from the UTS on a site-specific basis to foster the use of alternatives to combustion
technologies. While API believes that the treatability variance process can be

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cumbersome and time consuming, it does provide one of the few mechanisms for
encouraging alternatives to otherwise inflexible numerical treatment standards devised
for routinely generated wastes, not for hazardous soils. Therefore, to reduce the use of
combustion to treat hazardous soils, API requires, that the Agency ensure that the
process for obtaining these variances is as streamlined as possible." (API. CS2P-
00169)

Response: The Agency agrees that when LDR treatment standards based on the performance
of incineration are applied to contaminated soil, treatment variances are often appropriate.
With respect to contaminated soils. EPA has to this point presumed that a treatment variance
would generally be needed because the LDR treatment standards developed for process wastes
were either unachieveable (generally applied to soil contaminated by metals) or inappropriate
(generally applied to soil contaminated by organic constituents). See, for example, 55 FR 8760
(March 8, 1990); 58 FR 48092, 48125 (September 14. 1993); 61 FR 18805-18808. 18810-18812
(April 29, 1996); and. 61 FR 55717 (October 28. 1996). This presumption will no longer apply
once today's soil treatment standards take effect. This is because today's standards were
developed specifically for contaminated soils and are intended to address the past difficulties
associated with applying the treatment standards developed for process waste to contaminated
soil.

• 'EPA notes that when a hazardous soil cannot be treated to a specified standard,
the generator or treatment facility may petition the EPA for a variance from the
treatment standard.

The Agency should be aware that in the absence of alternative standards based on
specific treatment technologies some problematic waste matrices (e.g., certain RMW-
contaminated soil) will continue to require treatabiiity variances." (DOE, CS2P-00161)

Response: The Agency agrees that when LDR treatment standards based on the performance
of incineration are applied to contaminated soil, treatment variances are often appropriate.
With respect to contaminated soils, EPA has to this point presumed that a treatment variance
would generally be needed because the LDR treatment standards developed for process wastes
were either unachieveable (generally applied to soil contaminated by metals) or inappropriate
(generally applied to soil contaminated by organic constituents). See, for example, 55 FR 8760
(March 8. 1990); 58 FR 48092, 48125 (September 14. 1993); 61 FR 18805-18808, 18810-18812
(April 29, 1996); and, 61 FR 55717 (October 28, 1996). This presumption will no longer apply
once today's soil treatment standards take effect. This is because today's standards were
developed specifically for contaminated soils and are intended to address the past difficulties
associated with applying the treatment standards developed for process waste to contaminated
soil. In particular, the standards for organics are no longer based on the "inappropriate"
technology of incineration.

• "Unocal is pleased to see the Agency's acknowledgment of the need for LDR

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treatability variances for the waste specific UTSs that will apply to contaminated soil
and debris during the time that the Phase n LDRs have been promulgated and HWIR
has not been promulgated. The application of UTSs to contaminated soils of which
80% are likely to be managed outside of RCRA Subtitle C under HWIR is clearly an
onerous and unnecessarily expensive requirement. This is especially true when
considering the fact that the majority of the UTSs were developed using incineration as
the best Demonstrated Available Technology. Incineration is generally seen as
inappropriate for the treatment of soils because of the non-combustible composition of
soils." (UNOCAL, CS2P-00185)

Response: The Agency agrees that when LDR treatment standards based on the performance
of incineration are applied to contaminated soil, treatment variances are often appropriate.
With respect to contaminated soils, EPA has to this point presumed that a treatment variance
would generally be needed because the LDR treatment standards developed for process wastes
were either unachieveable (generally applied to soil contaminated by metals) or inappropriate
'(generally applied to soil contaminated by organic constituents). See, for example. 55 FR 8760
(March 8. 1990'); 58 FR 48092, 48125 (September 14, 1993), 61 FR 18805-18808. 18810-18812
(April 29. 1996); and, 61 FR 55717 (October 28. 1996). This presumption will no longer apply
once today's soil treatment standards take effect. This is because today's standards were
developed specifically for contaminated soils and are intended to address the past difficulties
associated with applying the treatment standards developed for process waste to contaminated
soil. Specifically, the standards for organics are not based upon the performance of incineration
but rather upon performance of technologies which are appropriate for contaminated soils, and
therefore petitioners could not automatically invoke the "inappropriate" prong of the treatment
variance provision with respect to such standards.

5.E CONTAINED-IN POLICY (see Section 6.A)

• "The proposed rule would establish treatment standards for hazardous soils and codify
EPA's "contained in' policy for contaminated soils and water. Soils will have to be treated
for all hazardous constituents which are present. The standards for hazardous soils would
be different than the standards which already exist for hazardous debris, and depending on
the alternative approach adopted in the final rule, may also be different from UTS. Under
the proposed rule, a petition could be submitted for a determination by EPA that a
'contained-in' waste would no longer be subject to the management standard for
hazardous wastes. The EPA could also determine that the 'minimize threats'
considerations are satisfied so that the waste would no longer be considered a solid waste
and could thus be managed completely outside of RCRA, including Subtitle D. Such a
determination could be made prior to or subsequent to treatment.

As indicated in the comments to the ANPRM, the codification of the 'contained-in' policy
was acceptable. Further evaluation is required to determine whether the proposed criteria
are sufficiently flexible to address radioactive mixed waste concerns and whether it would
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be preferable to establish a special regulatory status for RMW soils." (TNEL. CS2P-
00018)

"Contained-in determinations should not require approval by EPA Regional
Administrator or designee if concentrations of hazardous constituents fall below UTS.

The EPA's contained-in policy states that environmental media such as soil or ground
water that is contaminated with hazardous waste must be managed as the hazardous
waste until the waste is separated from the media so that it no longer 'contains'
hazardous waste. The policy further states that contained-in determinations
documenting that media no longer contains hazardous waste must be made by the EPA
Regional Administrator or his designee on a site-specific basis.

It is recommended that the EPA consider not requiring petitions for wastes which meet
UTS. Petitions should only be required if constituents present in the media exceed
UTS. The facility would obviously be required to maintain documentation for the
determination in its files. Implementation of this change would greatly reduce both
time and cost required to manage these materials, and would in our opinion continue to
minimize the risk to human health and the environment. Serious impact to EPA
resources would also be avoided. EPA should carry this concept to debris as well."
(INEL, CS2P-00018)

"In addition to proposing alternative treatment standards. EPA has proposed
establishing a specific process for making any "contained-in" determinations for
hazardous debris, hazardous soils and other environmental media. Under EPA's
proposal, the EPA Regional Administrator (or State Director) would make these
determinations based on a review of a number of specific criteria which are set forth in
the proposed RCRA regulations. See 59 Fed. Reg. at 48127-28 (to be codified at 40
C.F.R § 260.42). While HWAC supports the need to codify EPA's "contained-in"
policy, HWAC strongly believes that the procedures presented in §260.42 for
petitioning the Regional Administrator (RA) for "contained-in" determinations are
unnecessarily burdensome, because they increase the administrative duties of regulatory
personnel and. ultimately, the time to complete cleanup activities. The process
proposed by the EPA in this rulemaking will not only increase the time to complete
cleanup activities, it will also increase the total costs associated with cleanups through
increased administrative costs with no real environmental benefits.

Also, HWAC believes that in making these "contained-in" determinations, the primary
focus should be on "risk-related" factors. Instead of utilizing the approach in EPA's
proposal, HWAC believes that "contained-in" determinations should be self-
implementing with a reporting/notification requirement to the RA prior to initiation of
any activities related to management of the material as a nonhazardous waste/material.
HWAC suggests rewording §260.42 as follows:

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§260.42 Procedures for contained-in determinations for hazardous debris.
hazardous soil and other environmental media.

(a) Any owner or operator may determine, in accordance with the procedures
presented in this section, that hazardous debris and hazardous soil or other
environmental media, including, but not limited to. ground water, surface water
and sediments, should be excluded from regulation as a hazardous waste. The
owner or operator must have a qualified third-party professional perform the
necessary investigations and risk assessments to demonstrate that specific
constituent concentrations in the hazardous debris, hazardous soil or other
environmental media, including, but not limited to, ground water, surface
water, and sediments, to be excluded do not pose a hazard to human health and
the environment at that site. Each demonstration must be submitted via certified
mail to the Regional Administrator (RA) at least sixty (60) days prior to
initiation of management activities for the material of concern as a
nonhazardous waste/material. Each demonstration must include:

(1) the owner's and/or operator's name and address;

(2) an explanation, to the extent possible, of the circumstances by which the
affected debris, soil, or other media became contaminated with hazardous
wastes; and

(3) documentation from a qualified third-party professional demonstrating that
the subject material will not pose greater than a 10 to the minus 6 risk to users
of a future unrestricted use site. This demonstration must be made via a
baseline evaluation of risks to human health and the environment from the
residual contamination in the media of concern at the site. The evaluation is to
be conducted using sound professional judgement and in accordance with EPA
guidance at the time of the evaluation. Documentation must include, at a
minimum, the following:

physical characteristics of the debris, soil, or other media;
waste constituent characteristics such as solubility, mobility, toxicity and
interactive effects of constituents present in the contaminated debris,
soil, or other media that may affect those properties;
reasonable or likely exposure pathways, such as potential for direct
human contact with the contaminated media and potential adverse
ecological impacts in accordance with the proposed future use of the
material;
surface and subsurface characteristics such as topography, hydraulic
conductivity, permeability and porosity of soil, aquifer thickness, and
other geologic and hydrogeologic characteristics that may influence

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constituent mobility and migration potential at the surface and in the
unsaturated and saturated zones.

(b) The RA shall review the information submitted and proceed as follows:

(1) If the RA deems the demonstration to be incomplete and/or inadequate, the
RA shall notify the owner or operator of the perceived deficiencies in writing
via certified mail within forty-five (45) days of receipt. The owner/operator

shall continue to manage the subject material as a hazardous waste until the perceived
deficiencies are fully resolved.

(2) If the RA deems the demonstration to be complete and adequate, no further
action will be taken. The owner/operator may manage the subject material in
accordance with the future use presented in the documentation submitted to the
RA sixty (60) days after submittal of the demonstration, if no written
correspondence of perceived deficiencies is received from the RA.

HWAC believes this approach would help streamline the overall RCRA regulatory
process. It also would be consistent with the regulatory philosophy adopted in other
areas of the RCRA regulations, such as under 40 C.F.R. §262.11, which requires
generators themselves to assume the burden of identifying hazardous wastes that they
have generated rather than having these generators submit petitions or formal requests
for determination to the appropriate governmental agency. In light of existing RCRA
civil and criminal sanctions, it is obvious that the appropriate safeguards could still be
employed to ensure that hazardous soils were properly managed and treated if this self-
implementing program were adopted. Public comment could be solicited only where
there is off-site exposure to hazardous constituents. Additionally, in order to make it
clear when a party can utilize the "contained-in" route versus meeting the applicable
treatment standards. EPA should clarify in the final rule that a party can pursue a
"contained-in" determination at the party's option.

HWAC recommends that meeting the UTSxlO "ceiling" standard should serve as an
automatic "contained-in" determination, in light of the Agency's direction towards
allowing any type of waste to "exit" the Subtitle C system based upon the concentration
of hazardous constituents contained therein (i.e., HWIR Committee discussions indicate
this direction). This approach would be particularly appropriate if EPA moves to a
more risk-based system for establishing the UTS standards, since the standards would
then closely resemble the risk-based "contained-in" determinations. HWAC believes
that it defeats EPA efforts with this ruiemaking to streamline the LDR program by
forcing treated decontaminated soil to be managed in a Subtitle C landfill under one
scenario (i.e., when applying BDAT under the LDR program), yet allowing the
unrestricted replacement of soil under the "contained-in" approach. Often, soil

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remediation under both approaches might involve the same type of treatment
technology leading to the same levels of decontamination and achieving the same
degree of risk reduction.

Streamlining the RCRA regulatory process through a self-implementing program also
can provide additional incentives to encourage voluntary cleanups of hazardous waste
sites. This approach would have the effect of encouraging specific RCRA corrective
actions and/or other types of voluntary cleanups by reducing regulatory delays and even
minimizing transactional costs and burdens. Regional Administrators and State
Directors are already overburdened with the task of managing the RCRA corrective
action and CERCLA cleanups that are already on their management plan for next year.
It is unrealistic to expect these officials and their staffs also to evaluate contained-in
petitions that, in essence, constitute full blown remedial action plans. Cleanups will
not go forward if there is no government official available to certify that treated soil
has exited the RCRA regulatory regime." (HWAC, CS2P-00020)

"The proposed procedure for a "contained-in" determination appears to be structured
appropriately. However, we would suggest that processing times be inserted to assure
that determinations will be made within the time necessary to accommodate 90-day
generator accumulation limits." (Boeing, CS2P-00029)

"The proposed "contained in" determination procedure is unnecessarily cumbersome.
See 58 Fed. Reg. at 48,122. In order to make the newly codified "contained in" policy
workable, Lilly recommends a streamlined approach.

EPA has proposed that generators petition for a federal or state agency determination
for any contaminated media or debris other than media or debris associated with a
RCRA closure or a remedy selection under RCRA or CERCLA. EPA states that the
RCRA closure and RCRA or CERCLA remedy selection are already subject to agency
oversight and public comment. See 58 Fed. Reg. at 48,127.

EPA proposes a set of "decision factors" which may be used to make the determination
that the media or debris is no longer subject to Subtitle C regulation. While these
factors may assist in decision making, they require extensive submissions on the part of
the generator and offer no basis for decision making on the part of the agency. This
will likely lead to disparate and protracted decision making.

Lilly proposes a simplified process based on concentration levels which represent the
floor for LDR treatment for the various media and in debris. If a generator's waste
met this performance standard, the so-called "minimize-threat" level at 42 U.S.C. §
6924(m), the waste could be managed as non-hazardous as long as the generator
documented the determination in the operating record. The waste would no longer
meet the statutory definition of hazardous waste ("pose a substantial threat to human

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health or the environment"). The Agency would not have to be involved in this
process, beyond periodic oversight or review of data submitted in routine reports. If a
generator wanted to have its media or debris considered for exemption at higher levels
(above the floor), the procedure described in the proposed rule could be used: including
the requirement for agency determination.

Lilly recommends that the streamlined process also apply to RCRA closures and
remedy selections under RCRA and CERCLA as well as spill cleanups and other site
activities which result in contaminated media. This would expedite cleanups and site
remediation." (Eli Lilly and Company, CS2P-00039)
''As regards complex syntax. Section VTI of the preamble includes the following single
sentence on page 48128:

"Although the contained-in and minimize threat determinations need not be
identical (cf. Hazardous Waste Treatment Council v. EPA, 886 F. 2d at 362-63.
explaining that the minimize threat level is a stricter standard (for example) than
the levels at which wastes are identified or listed as hazardous), and indeed is
generally regarded as among the strictest of the statutory environmental
standards (id. and Tliird Tliird Case, 976 F. 2d at 14), there is no absolute bar
to a determination that sufficient concentrations of hazardous constituents have
been destroyed, removed, or immobilized to determine both that soil no longer
"contains" hazardous wastes and that threats to human health and the
environment posed by the hazardous constituents in the wastes have been
minimized."" (Department of Energy, CS2P-00043)

"EPA proposes a contained-in determination criteria for hazardous soil and debris. It is
the HWTC position that such criteria should only be applied to soil that meets the UTS
x. 10 standard discussed above. After the UTS x 20 standard is satisfied, a contained-in
determination must be based on a risk assessment that considers all exposure pathways.
Just as EPA is doing in the combustion strategy, so also should EPA specify the exact
protocols required for these contained-in determination risk assessments, and these
evaluations must also include an assessment of ecological risk as well as all human
exposure pathways.

EPA must spell out the contained-in policy criteria more clearly (i.e., surface and
subsurface factors) and must include more detail on public participation and risk
criteria. EPA must insist on achieving a level of 10"6 for carcinogens and the UTS x 10
must be justified on a constituent-by constituent basis based on the risk assessment.
Basically, if the UTS x 10 treatment standard is met for the soil and a site-specific risk
assessment demonstrates there is no remaining unacceptable risk, the soil may be
exempted through the contained-in policy. Or, if treatment to the UTS plus 90%

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standard is achieved, a back-end risk assessment is not necessary.

Decision factors for making a ''contained-in" determination are outlined at 58 Fed. Reg.
at 48127-28. On page 48128. EPA requests comment on the contained-in decision
criteria. Specifically, "(1) Should the final rule specify a list of criteria that must be
considered; (2) should the criteria be more specific regarding the conditions which
would allow for or preclude contained-in determinations; and (3) are there other factors
the Agency should consider when making contained-in determinations, in addition to
those listed above?

The HWTC is in agreement that the decision factors as currently presented need
substantial expansion. In response to the first point, we believe that these criteria
should be codified in the rule. EPA noted that flexibility was important in making
contained-in determinations and the HWTC agrees that some flexibility is important in
addressing environmental problems that may pose unique, site specific issues.
However, clear national regulations must be provided in order to ensure consistent
treatment of wastes and the protection of human health and the environment.

In addressing the second point, the HWTC feels strongly that more specific criteria are
required. For example, one of the decision factors listed was "an acceptable risk range
of 10"* to 10-6." This statement does not clearly indicate that cancer risk are being
considered, does not include decision factors for noncancer endpoints, and provides no
guidance as to the desire (target) end of the cancer risk range. As another example, the
potential for exposure of sensitive environmental receptors is listed as a factor that must
be considered, yet even at Superfund sites, clear objectives for assessing ecological
exposure and risks are often not available. HWTC is concerned that without clear
definitions and objectives, addressing potential exposure to sensitive environmental
receptors may be widely variable in different EPA Regions and could be used to
prevent delisting of wastes or at least to give the appearance that such delisting might
not be possible, thereby limiting voluntary cleanups.

The seven decision factors are all site characteristics that affect the potential for risk.
Rather than simply presenting a short, and quite probably incomplete list of
characteristics that affect risk, the HWTC recommends that EPA revise its discussion
of the decision factors to focus on the risk management criteria that must be achieved.
These criteria could be spelled out in the rule, with the scientific factors that need to be
considered presented in accompanying guidance. For example:

L. All cancer risks must be regulated to within a risk range of 10"* to 10"6, with a
cancer risk level of 10"6 used as a target risk goal for individual chemicals and
10"5 used as a goal for multiple chemical exposes.

M. The hazard indices for noncancer endpoints must be less than unity.
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N. The site must achieve adequate protection of ecological endpoints.

The specific requirements to achieve these management goals should be spelled out in
accompanying guidance documents, such as the Superfund Risk Assessment Guidance
for Superfund documents. Particular situations that might be important in making a
contained-in decision that are not covered in RAGS could be outlined in a separate
guidance memorandum.

Note that this position does not conflict with the HWIR "hot spot" approach. The
above requirement applies to contained-in determinations for hazardous soils that are
treated either on-site or off-site. The HWIR "hot spot" approach is used to identify
which soils are subject to treatment in an on-site remediation scenario. ''Non-hot-spot'
soils identified at a site on the basis of risk assessment would be subject to state cleanup
authorities." (Hazardous Waste Treatment Council, CS2P-00060)

'The HWTC is not in support of any new contained in determination for hazardous
debris. The technology specific standards for hazardous debris were developed in the
Phase I LDR rule because debris is not amenable to representative sampling, and is not
readily analyzed. The existing contained-in policy for hazardous debris that is based on
application of the technology specific standard and the clean debris surface criteria
should be retained. A contained-in policy for contaminated soil that is based on
analyzing specific constituents is sensible, on the other hand, since soil is amenable to
representative sampling and analysis.

The HWTC also urges EPA to develop alternative technology specific treatment
standards for debris that would allow for subtitle C disposal. We strongly recommend
that EPA amend the "clean debris surface" standard to allow residual staining of no
more than 5 % of the surface area, without a requirement to inspect each square inch of
surface area.

Perhaps the most serious problem with the debris rule is the impossibility of complying
with the "clean debris surface" standard. Now that generators have begun seeking
treatment and disposal of their hazardous debris, HWTC member companies are
finding that this standard is totally impractical and unworkable.

Under the final rule, hazardous debris that has been decontaminated is no longer
subject to Subtitle C regulation, 57 Fed. Reg. at 37239. To make such a showing for
an extraction method, the treatment must achieve a "clean debris surface," defined as
debris that is free of all visible contamination except for residual staining "limited to no
more than 5% of each square inch of surface area." 40 C.F.R. 268.45, Table 1. n.3.
The final rule states that this 5 % criterion "is applied to each square inch of the debris
surface." and thus areas covered by large stains cannot be "averaged" with unstained

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areas. 57 Fed. Reg. At 37230 n.31.

The 5 "c standard appears to have been based on certain industry standards adopted by
the Steel Structures Painting Council for sandblasting to obtain a surface clean enough
to paint. However, there are a number of important differences between painting steel
structures and treating hazardous debris which makes the 5 % per square inch
performance standard unworkable in the debris treatment context. First, debris often
includes a heterogeneous mix of metal brick, concrete, and a variety of other man-
made items. An across-the-board requirement that at least 95% of each square inch of
each item of debris be free of residual contamination is unachievable in any practical
sense.

Second, debris to be treated using physical extraction methods may be generated as a
tangled mass of twisted pieces (e.g., demolition debris). Other parts may be formed
into unique shapes that are difficult to treat using the alternative methods. For
example, a metal (or composite) pump or motor housing may be formed with cooling
fins and recesses that are difficult to reach with conventional abrasive blasting
equipment. Transformers and capacitors may have similar problematic forms.

Third, debris may be contaminated on interior surfaces that can be reached with
cleaning media but that may be exceedingly difficult to inspect. For example, the
interior of a medium diameter pipe may be amenable to abrasive blasting to remove
contaminants but not to inspect of each square inch to determine compliance with the
performance standard.

Moreover, incremental treatment to the standard may result in very large quantities of
residuals (e.g., sandblasting grit) contaminated with very slight concentrations of
contaminants. This result would be inconsistent with EPA's emphasis on waste
minimization in all phases of the waste management process.

We therefore strongly recommend that EPA amend the "clean debris surface" standard
to allow residual staining of "no more than the 5% of the surface area." Such a revised
standard would fully protect human health and the environment and would be
achievable." (Hazardous Waste Treatment Council, CS2P-00060)

"EPA should not codify the proposed case-by-case procedure for determining when
hazardous media and debris no longer contain a listed waste. Instead, consistent with
its earlier approach for certain debris, once hazardous media meets the treatment
standards, the treated media should be exempt form Subtitle C." (GE, CS2P-00076)

"V. Contaminated Media and Debris Which Meet the LDR Treatment Standards
Should Be Exempt from Subtitle C
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EPA has proposed to codify its interpretation that soil contaminated with listed wastes
must be managed as a hazardous waste until the soil no longer "contains" the listed
waste. Under EPA's proposal, a determination of when a soil no longer "contains" a
listed waste could onlv be made bv EPA or a state, and onlv after submission of a
* * •
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evade treatment, and (3) a prohibition on dilution that avoids proper treatment. Also.
the LDR treatment requirements directly and indirectly foster waste minimization by
mandating recycling and imposing costly treatment, respectively. Obviously, the
benefits of such preventative measures and waste minimization goals are largely lost
once disposal of hazardous waste has already occurred.

EPA should not attempt to impose this paradigm on hazardous media, which generally
present a much lower risk and are generated for different reasons and under different
circumstances than process wastes. A significant portion of hazardous media are
brought into Subtitle C by the "contained in" interpretation or the mixture and derived-
from rules and thus media generally have much lower constituent concentrations than
process wastes. Contaminated media are also generated in larger volumes than process
wastes, making the application of some technologies impractical.

The fundamental goals of remedial activity are efficient and effective cleanups. As is
demonstrated by this proposal, these objectives cannot be met if EPA attempts to
regulate wastes from remedial activity as if they were newly generated process wastes.
EPA should not choose to follow the same path, ignoring the progress made in the
HWIR dialogue and formalistically applying the standards used to categorize industrial
process waste without regard for the obvious differences between the contexts in which
the materials are generated, and the nature of the materials themselves.

EPA's proposal for case-by-case contained-in determinations, seen in the best light,
could be a recognition that some change is needed to bring some rationality to the
system. Unfortunately, it is a step in the wrong direction. A critical problem with the
existing contained-in principle is that there never has been a clear method for
determining when the material no longer contains a listed waste. EPA's proposal.
however, is hardly a workable solution to this problem. Indeed, it will merely repeat
the painful, slow and expensive process for ' delisting" wastes and make it extremely
difficult to exit the system once a material has entered, regardless of the risk the
material presents. As with the present delisting process, EPA's proposed case-by-case
contained-in determination process, which includes human risk and ecotoxicity
evaluations, will be too slow, expensive and complex to provide sufficient relief in the
remedial context (where quick and easy-to-apply decisions are critical) and will divert
scarce agency resources form much higher-risk issues/3 The very complexity and
expense associated with the proposal will discourage persons from filing contained-in
petitions and subjecting their proposal to public comment.

Rather than create a whole new, complicated and burdensome "delisting" process, EPA
should establish a simpler self-implementing system. Contaminated soil and debris that
23Sometimes contaminated soil is discovered in the context of plant expansions, new construction, etc. Untimely delays i
contained-in determinations will create expensive and unnecessary construction delays.

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meet the treatment standards should be judged to no longer contain a listed waste, and
thus, no longer be subject to Subtitle C. This straightforward approach would ensure
adequate protection for human health and the environment and would be easy to
implement and enforce. Furthermore, it would be consistent with EPA's approach for
certain debris contaminated with listed wastes.

In sum, EPA should not establish a burdensome and complex system which needs to be
used at virtually every remedial or construction site. Instead, consistent with the
proposed UTS approach, EPA should establish a self-implementing and simple system
by which soil or debris meeting the LDR treatment standards would no longer have to
be managed as hazardous wastes." (General Electric Company, CS2P-00076)

"Contained-In Determinations (58 FR 48127)

AWPI is very disturbed by the Agency's announced intention to codify the contained-in
policy for hazardous soil and other environmental media in new § 261.3(g).
Codification of this policy will only impede remediation efforts. Minimally impacted
sites would require the same in-depth level of procedural review warranted for heavily
impacted sites. As stated previously, AWPI urges the Agency to wait for promulgation
of the HWIR regulations before regulating soil. HWIR regulations combined with
CAMU regulations should provide and integrated approach to management of
contaminated environmental media.

The "acceptable risk range" decision parameter of proposed § 260.42 should reflect
the intended site use.

EPA should add clarifying language in the Final Rule that takes into account what the
ultimate end-use of the affected site is. For example, it would be inappropriate to use
an acceptable risk range based on residential dwelling land-use scenarios when
determining the acceptable risk range for sites intended for industrial use. It should be
made clear that there are different use scenarios and therefore different risk scenarios
and acceptable risk ranges.

The final rule should allow Administrative Appeal of a Regional Administrator's
Contained-in Determination.

Under the proposed rule, there is no administrative appeal to a decision by the Regional
Administrator. This effectively eliminates getting a second level of administrative
review. Presumably, any appeal would have to be taken in Federal District .Court.
Federal courts are reluctant to overturn decisions by administrative agencies charged
with the responsibility of administering complex environmental statutes. This inability
to obtain administrative review at the Headquarters level may lead to divergent
implementation of the contained-in principle as it is applied in the various EPA regions.

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This, in turn, would lead to an unequal playing field for AWPI members located in
regions that choose to apply the contained-in policy in a more stringent manner than in
other areas." (American Wood Preservers Institute. CS2P-00047)

"Do not codify "contained in" policy for soils

EPA's proposal to codify the definition of hazardous soil will make any attempts to
manage soil, such as for excavation, voluntary cleanup, maintenance, or storm water
control, impossible at virtually any industrial site, especially any site which generates a
listed waste. Such projects may already be complicated by RCRA or CERCLA issues.
However, our experience has usually been that application of some reasonable
standards can allow projects to proceed.

As an operator of industrial facilities. Koppers often must dig a trench to install pipe.
regrade soil roads, or install new ditches for storm water improvements. Often, such
soil will contain trace levels of chemicals included on the UTS table. Presently, we
can generally use such soil to backfill the trend from which it was excavated or reuse
the soil elsewhere within the facility. Excavated soil with significant constituent levels.
such as being visibly stained, is generally disposed as hazardous waste. We have had
good success with some large projects by working with the agencies in reaching
mutually acceptable means of proceedings with projects involving large amounts of
soil.

As proposed, at one of these projects. Koppers would have to petition the Regional
Administrator for a "contained-in" determination prior to any action. Determinations
would likely require multiple submissions, soil testing, risk analyses, and several
months to years. All soil would have to be presumed to be hazardous waste until EPA
says it is not. Any movement of soil could be considered to be land disposal. (How
can land disposal of land be prohibited?) Compliance with and enforcement of this
provision would be disruptive to our business and, probably, impossible. EPA should
take no action to further codify hazardous soil until it can be part of the HWIR."
(Koppers Industries, CS2P-00083)

"Page 48127. The U.S. EPA is proposing that the requirements for contained-in
determinations would not be necessary for RCRA closures and remedy selections under
CERCLA. Since this determination will be made by authorized States, these explicit
requirements should not be required for cleanups being conducted under State oversight
which are not subject to CERCLA." (Association of State and Territorial Solid Waste
Management Officials, CS2P-00091)

"CONTAINED-IN DETERMINATIONS

We support the U.S. EPA's decision to codify within the hazardous waste regulations

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the "contained-in " policy for hazardous soil and other environmental media. We
believe that the decision factors set forth in proposed 5260.42 allow sufficient
flexibility and are appropriate for making a determination that the media at a specific
site no longer "contain" hazardous waste and should thus no longer be subject to the
management standards for hazardous waste. We would like to emphasize below several
important aspects of the U.S. EPA's proposed contained-in approach which we believe
are critical.

We must have the flexibility to apply the contained-in approach not only to soils
contaminated with listed hazardous waste but also those contaminated with
characteristically hazardous waste (particularly Toxicity Characteristic (TC) hazardous
waste). Even though the preamble on 58 FR 48123, 48127, and 48128 does not
emphasize this point when it discusses the contained-in approach, the proposed wording
of S261.3 does state that soils and other media which are either contaminated with a
listed waste or that exhibit a hazardous waste characteristic are not subject to further
RCRA regulation provided they conform to the contained-in criteria established in
Section 260.42. This is important point since the U.S. EPA has established the
principle under the LDR program that if a waste is hazardous at the point it is
generated then the obligation to treat to achieve the minimized threat level of RCRA
section 3004 (m) for all underling hazardous constituents attaches at that point
regardless of whether the waste still exhibits a characteristic at the point of its disposal.
In light of this requirement, we believe that it is necessary to extent the application of
the contained-in approach to characteristically hazardous contaminated media.

Page 48128. The criteria for the contained-in determination should be made more
specific to ensure consistency between States in making the contained-in determination
for off-site disposal. The U.S. EPA is proposing that the criteria given for a contained-
in determination should be considered when making that determination. The language
"will consider" allows a lot of flexibility and may result in broad differences between
States in how these criteria are reflected in the decision making process

It must be acceptable for acceptable for a hazardous soil to be considered initially under
the risk-based contained-in criteria of Section 260.42 for a determination of whether the
soil is no longer subject to regulation as a hazardous waste. In other words, treatment
to achieve the universal LDR treatment standards, as modified for hazardous soils in
Section 268.47, should not be required if it can be demonstrated that either the
untreated soil, or the soil with a lesser degree of treatment, could satisfy the
requirements of Section 260.42. We appreciate that this appears to be the U.S. EPA's
position since the preamble at 58 FR 48127 states that a contained-in determination.
could "be made prior to treatment or subsequent to treatment".

The hazardous waste program (if modified as proposed) would contain two
opportunities for a risk-based, rather than a technology-based, approach to be used to

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determine treatment levels for hazardous soils. This flexibility, which is provided
under the Corrective Action management Unit rule and the proposed contained-in rule
at Section 260.42, would be directly available for remedial actions conducted pursuant
to RCRA or CERCLA authorities. We understand, however, that for a State superfund
program to avail itself of this same flexibility to determine that the LDRs would not
need to be achieved within a corrective management unit, it would need to receive
authorization from its State RCRA Director, provided the State superfund program to
use the contained-in rule it would either need to petition the provided it is an authorized
state for LDRs to make a final determination." (ASTSWMO, CS2P-00091)

"Contained-in" Determination (page 48123): GM agrees with codification of the
"contained-in" policy for environmental media to provide a mechanism for site-specific
determinations that soil, groundwater, etc. no longer "contain" listed hazardous wastes.
and thus are no longer subject to Subtitle C requirements. We further agree that
contained-in determinations should constitute "minimum threat" levels for a particular
site (i.e.. function as a cap for LDR treatment standards)." (General Motors. CS2P-
00095)

"Contained-in Determinations (page 48127), GM supports the proposed waiver of RCRA
closures and remedy selections under RCRA and CERCLA from the procedures for
contained-in determinations for soil. We agree that such activities are typically conducted
with considerable Agency oversight, and the decisions are generally subject to public
notice an comment,

We also strongly agree with the Agency's view that due to extreme variations in site-
specific and constituent-specific characteristics, specific formulae or other quantitative
means of calculating contained-in levels are not appropriate. Rather, a more flexible
approach must be adopted.

GM agrees with the proposed list of waste-and site-specific information (S260.42(c)) to
be considered in deciding "contained-in determination". Additionally, in considering
subsurface characteristics, not only should depth to ground water be considered, but also
whether the around water is being used as a water source, or is even usable, in a practical
sense.

The final rule should specify only a general list of criteria, (as in the preamble), allowing
considerable flexibility for variations in site-specific and constituent-specific
characteristics. The criteria should not be more specific than those in the preamble.

On page 48128, the Agency states that " Although the contained-in and minimize threat
determinations need not be identical...", and '' .. The minimize threat level is a stricter
standard (for example) than the levels at which wastes are identified or listed as
hazardous." (Emphasis added). GM strongly recommends that contained-in levels for

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hazardous constituents should be no lower than the levels at which wastes are identified
listed as hazardous." (General Motors CS2P-00095)
or
"EPA is also proposing that in order for treated hazardous soils to exit the Subtitle C
system, a "contained-in" determination must be made by the Regional Administrator. We
do not believe this mechanism to be appropriate for all soils. A contained-in determination
should only be required for soils contaminated w;ith listed hazardous wastes (at least until
minimize-risk levels are established for the waste constituents), not soils that are
considered to be hazardous only because they exhibit a hazardous waste characteristic
Once a characteristic soil is treated to the extent necessary to meet the LDR standards, at
whatever levels they are finally established, the waste should be authorized for disposal in
a non-subtitle C unit.24 The reference to Subtitle C in 268.40(f) should be removed." (Mill
Service Inc.. CS2P-00098)

"Under the current regulations. S.S.R. mobilizes on site, treats petroleum contaminated
soil from USTs to below state mandated treatment levels (i.e. 100 ppm for TPH), and
demobilizes. The treated soil is typically then used as backfill. S.S.R. has successfully
treated over 150,000 tons of PCS. Treating other contaminants or performing
treatability tests is much more complicated under the current RCRA regulations. Our
experience has shown that regulators rely heavily on the "derived from rule'" which
basically states that soil containing a compounds that is classified as a hazardous waste,
remains a hazardous waste even after treatment. This policy severely restricts the
treatment options available to RP's. S.S.R. hopes that new regulations eliminating this
regulation are promulgated. This would promote on site treatment, reduce demand on
hazardous waste landfills and reduce the overall treatment costs. " (Southwest Soil
Remediation, CS2P-00109)

"[Re. Section Vn, B.2] I recommend keeping the wording that allows all soils
containing Subtitle C wastes below the final ceiling limit to be declassified as a subtitle
C waste. This will encourage treatment and explicitly informs the potential vendors
and RP's that once the soil is treated to below the specific level, it no longer is a C
waste, and can be backfilled or disposed of as normal solid waste. (Compared to a C
waste is a C waste regardless, so why treat??)" (Southwest Soil Remediation, CS2P-
00109)

"Section D — Contained-in wastes:
This section is particularly contentious. It appears that the proposed regulations are an
attempt to clarify the contained in and derived from rules.

It is evident that the EPA and its consultants have spent considerable effort in
This, of course, assumes that the treated soil does not exhibit a hazardous waste characteristic.

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determining the treatment levels presented in these proposed rules. However. Section
D may end up undermining all of these efforts and present significant opportunity for
RP's. zealous environmentalists and NIMBY activists to hinder on-site treatment or
force the soils to be sent to a certified hazardous waste landfill or incinerated (off-site).
These will tend to dramatically increase treatment costs making RP's more reluctant to
pursue treatment.

I was hoping that the proposed regulations would clarify one derived from rule.
Currently, soils containing a hazardous waste are still classified as a hazardous waste
regardless of overall treatment costs as the treated soil must still be disposed of as a
hazardous waste, regardless of the final contaminant levels unless a site-specific work
plan allows for remedy and not a technical remedy as to the final fate of the treated
soil.

Granted, site specific conditions (contaminant type, zoning, potential zoning, water
tables, etc.) may require that the soil be treated to various degrees, but the EPA should
be able to develop applicable standards (stepped).

On the other hand, numerous technologies have been developed that can successfully
treat petroleum contaminated soils from USTs. These technologies are both emerging
and proven in the field. However, if the same contaminants or constituent (i.e..
toluene vs. gasoline) are found in soils not relating to UST activities, then the soil may
be classified as a hazardous waste. In this case, the treatment process becomes very
complicated and costly, requiring site closure, TSD permits or work plans, etc for the
same treatment technology used for treating essentially the same contaminants.

To summarize my comments regarding section D, I believe that these proposed rules
introduce a legal or political avenue to determine treatment standards compared to
technical standards. The two sets of standards, universal standards vs. acceptable risk
standards, do not appear to be mutually beneficial. It raises the question of why have
two types of standards? If the risk guidelines are mandatory, then there should be very
clear and concise conditions for applying them, as well as clear concise situations when
they do not apply." (Southwest Soil Remediation. CS2P-00109)

"EPA should not codify the contain-in principal for soils.

It is premature for EPA to establish procedures for contained-in determinations.
particularly procedures that are so prescriptive." (Rohm and Haas Company, CS2P-
00114)

"EPA Should Not Codify the Contained-in Principal for Soils

EPA proposes to codify the contained-in principal with respect to listed hazardous

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waste that is contained in soil. See 58 Fed. Reg. At 48127. If adopted, any detectable
level of a listed hazardous waste constituent that is contained in soil would cause the
soil to be managed as listed hazardous waste.

Rohm and Haas strongly objects to this proposal. First, EPA has given no basis for
considering as hazardous waste all soil that contains any amount of hazardous waste.
"Hazardous waste" is defined among other things, as a solid waste which

"may...pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, disposed of. or
otherwise managed."

RCRA Section 1004(5). At low constituent levels, the soil often will not present a
"substantial...threat." For example, in many cases the soil may contain concentrations
of listed hazardous waste metals that are lower than natural background levels of metals
in soil. Additionally, the constituent levels in soil may be well below levels that can be
directly ingested without posing threats to human health and the environment. Clearly-
such soil should not be considered hazardous waste, yet EPA's broad codification or
the contained-in principal would arbitrarily do just that.

Section 300l(b) of RCRA requires EPA to promulgate regulations...listing
particular hazardous waste (within the meaning of [the definition of hazardous
waste in] Section 1004(5) which shall be subject to the provisions of this subtitle
[C]. Such regulations shall be based on the [hazardous waste listing] criteria
promulgated under subsection (a) and shall be revised from time-to-time
thereafter as may be appropriate.

This statutory provision requires EPA to make a particularized evaluation as to whether
specific wastes should be listed. An across-the-board, no-specific decision to consider
all soil that contains any level of listed hazardous waste constituents as having to be
managed as listed hazardous waste does not meet this statutory responsibility.

Moreover, EPA cannot claim that it lacks information as to what constituent levels in
soil do not pose substantial threats. EPA proposed such levels for 200 constituents
under its concentration based exemption criteria (CBEC) proposal on May 20. 1992.
See 57 Fed. Reg. 21510-13 (May 20. 1992). It would be arbitrary, capricious, and a
violation of EPA's statutory obligations to disregard the information EPA proposed on
the 200 constituents and to now consider soil with any concentration of listed
constituents to be hazardous waste.

Ironically, at the same time EPA is proposing in this new rule to promulgate an over-
broad contained-in rule, it is reconsidering its over-broad approach to the mixture and
derived-from rules in the HWIR Forum. EPA should address the problems of over-

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regulation of listed hazardous waste constituents under the mixture rule, derived-from
rule and contained in principal in a systematic way that rationally identifies when
wastes pose substantial hazards and only regulates such wastes under Subtitle C. We
seriously question the wisdom of creating another problem of an over-broad contained-
in rule, at the same time that EPA is attempting to fix the problems of over-broad
mixture and derived-from rules. Therefore at a minimum EPA should postpone
promulgation of the contained-in rule for soils.

It is Premature for EPA to Establish Procedures for Contained-In Determinations.
Particularly Procedures that are so Prescriptive

EPA has proposed very prescriptive procedures that must be followed to obtain a
determination from a Region or authorized State that soil or debris that contains low
levels of listed hazardous waste constituents need not be manages as listed hazardous
waste. See 58 Fed. Reg. At 48127 (September 14. 1983). Rohm and Haas urges EPA
to postpone adoption of prescriptive procedures it proposes.

Again, it is ironic that at the same time EPA is trying to develop a "self-implemented"
alternative to the delisting procedures for innocuous mixture and derived-from rule
wastes, it would propose to adopt a very prescriptive, delisting -like exit for contained-
in rule wastes. The demonstration EPA proposes closely resembles a delisting
demonstration in that there must be a full evaluation of waste, the affected media, the
exposure potential and other site and waste characteristics. The proposed procedures
are also cumbersome and time consuming, and would take away the applicant's right to
an administrative appeal. Most regrettably, EPA would require the full contained-in
demonstration even if the constituent in the listed hazardous waste is well below safe
edible/drinkable levels or even below natural background. It makes no sense for the
applicant and agency to take the time and expend the resources on a detailed contained-
in demonstration when the soils contain levels of constituents which, by all reasonable
measure, would not pose a substantial threat. Certainly EPA should have some
threshold concentration level below which the contained-determination should be
entirely self-implementing.

The proposed contained-in determination procedure involves numerous issues that have
been and are being hotly debated in the context of the mixture and derived-from rule
discussions now under the HWIR Forum. If EPA were to adopt the proposed
contained-in determination procedures, it would effectively trump many of the HWIR
Forum discussions and establish a precedent which may be hard to overcome in the
future with respect to the changes to the mixture and derived-from rules. Therefore.
Rohm and Haas strongly encourages EPA to wait before it adopts the proposed, overly-
prescriptive contained-in determination procedures.

The Proposed Procedure for a 'Contained-in " Determination Could Prevent a

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Generator From Treating Contaminated Soils On-Site

The procedures as outlined present an unworkable situation for the generator who
wishes to treat his own contaminated media on-site. It is generally more protective of
human health and environment to treat on-site. rather than transferring the hazardous
material off-site for treatment. In situations where excavation must take place
immediately, such as spin remediation, the procedure proposed would be a serious
impediment of the generator who wished to treat waste on site. First, the generator
would have to make the 30-day advance notice to treat. Second, the generator would
have to perform the treatment, and then submit a petition to the Agency stating the
residual concentration levels and requesting that the contaminated media no longer be
subject to the "contained-in rule." Third, the generator would have to wait another 30-
45 days for the newspaper and public comment. Finally, the generator would have to
wait another period of time for the Agency's final approval. By this time, the
generator would be close to or over the 90-day generator period and would be required
to obtain a permit which may require 3-5 years. The generator's alternative is to send
the waste off-site to a TSDF. which will be more costly and which would cause more
risk of exposure to the general population and the environment during transportation
and off-site treatment." (Rohm and Haas Company, CS2P-00114)

"Contained-in determinations should not require approval by EPA Regional
Administrator or designee if concentrations of hazardous constituents fall below UTS.

EPA's contained-in policy states that environmental media such as soil or ground water
that is contaminated with hazardous waste must be managed as the hazardous waste
until the waste is separated from the media so that it no longer "contains" hazardous
waste. The policy further states that contained-in determinations documenting that
media no longer contains hazardous waste must be made by the EPA Regional
Administrator or his designee on a site-specific basis.

Westinghouse recommends that the Agency not require petitions for wastes which meet
UTS, only that the facility be required to maintain documentation for the determination
in its files. Petitions should be required only if constituents present in the media
exceed UTS. Implementation of this change would greatly reduce both the time and
cost required to manage these materials, and would continue to minimize the risk to
human health and the environment. Unnecessary impacts to regulatory Agency
resources would also be avoided. EPA should further apply this concept to debris.

Under the regulatory language contained in proposed 40 CFR 268.42(c)(4), EPA
proposes to add as information that may be included in "contained-in" determinations.
including an "acceptable" risk range of 10"* to 10"6. Westinghouse suggests that EPA
clarify the intent of this statement and define "risk range" further, perhaps by
referencing EPA's "Risk Assessment Guidance for Superfund, Volume 1, Human

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Health Evaluation Manual (Part A). Interim Final (December. 1989)." (Westinghouse
Electric Corp., CS2P-00115)

"Westinghouse does not support the petition process codified in 40 CFR 268.42. Site-
specific determinations should be able to be obtained much more expeditiously than this
process would allow." (Westinghouse Electric Corp., CS2P-00115)

'(58 FR 48156) Regulatory Language Found In Section 26l.3(g)

This paragraph excludes soil and environmental media from regulation provided an
approved contained-in determination (codified at Section 260.42) and provided the media
does not exhibit a hazardous characteristic. As such, it appears that the language in the
paragraph should exclude this media from Section 268 as well as the named sections
"260,261 to 266 or 270". With the current language, media that is otherwise excluded
from the definition of hazardous waste would still be required to meet the treatment
standards in Section 268:" (Westinghouse Electric Corp., CS2P-00115)

"Hughes agrees with EPA regarding the need to codify the contained-in principal for
hazardous soil. The determination, however, should be left up to the generator
whenever possible. For example, if contaminated ground water is cleaned up to Safe
Drinking Water Act Maximum Contaminant Levels, the treated ground water should
automatically exit from RCRA Subtitle C requirements at that point. The
determinations would be made by comparing constituent concentrations in the
contaminated media to established hazardous waste universal treatment standards.
corrective action levels, or other appropriate established standards. Alternative
threshold levels could be set, as appropriate, based on the determination procedures
proposed by EPA.

Requiring petitioning of the Regional Administrator for all contained-in determinations
is unnecessarily burdensome and time consuming. The proposed procedures would
serve only to further delay cleanup activities by imposing additional bureaucratic
bottlenecks. The result would be increased administrative costs for industry and the
regulators without achieving real environmental benefits.

Contained-in determinations should be self-implementing with a reasonable level of
reporting/notification requirements to EPA or the state. Notification would be
provided prior to management of the contaminated material/media as a nonhazardous."
(Hughes, CS2P-00125)

"The proposal does not clearly state that if a soil has been treated to the universal
treatment standards or the hazardous soil treatment standards that it will be exempt
from further management as a hazardous waste. Instead, the Administrator must be
petitioned under 40 CAR 260.42. This is a cumbersome process and unnecessarily

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time consuming. The Agency should follow the dictum established in the Hazardous
Debris regulations and allow for a simpler exit from the hazardous waste management
system. If the treatment standards have been met or approved technology has been
used then the material should be declared non-hazardous." (Questar Corporation CS2P-
00130)
"Uniroyai Chemical Company is concerned that the procedure outlined for determining
whether environmental debris or media no longer contain a hazardous waste will not
provide for a timely response by EPA. When the hazardous waste management
regulations were originally implemented, many companies prepared and submitted
delisting petitions under 40 CFR 260.22. Preparation of the delisting petitions required
significant company resources and. in many cases, EPA did not act upon the petitions
in time to allow the petitioners to cost-effective manage their hazardous waste
programs. The outlined determination procedure, while valuable to the regulated
community, should include a time limit for EPA to consider the petition so that
valuable resources are not expended without potential regulatory relief Uniroyai
Chemical believes that the contained in rule as written does not address the needs of the
regulated community who manage their activities under 40 CFR 262.34 in less than 90-
day facilities. Provisions for automatic extensions to storage limitations upon submittal
of a request for a contained in ruling should be considered. This extension could be
keyed into a specific time constraint for the agency to make its determination. This
proposed rule has the potential to significantly decrease disposal costs related to spill
management. Uniroyai Chemical hopes the agency will consider how to make it
workable for the entire regulated community, not merely permitted TSDF facilities."
(Uniroyai Chemical Company, Inc.. CS2P-00140)

"Contained-in policy. Air Products agrees that there should be ways to deregulate a
material that contained a hazardous waste. We support a constituent based deregulation
system based on risk." (Air Products and Chemicals. Inc.. CS2P-00141)

"We also welcome the proposal that would allow EPA Regional Administrators and
authorized state program directors to make "contained-in" determinations for
environmental media and debris. The proposal appears to be in accordance with the
direction of the national on the HWrR/Harmonized Approach to contaminated media.
Such a rule will allow environmental media and debris to exit Subtitle C regulation
when such materials, either as found, or after appropriate treatment, can be shown to
present little risk to public health or the environment.

New York State and many other states have advocated regulatory reform in these area.
We appreciate the opportunity to work with EPA to develop approaches that will
eliminate unwarranted regulatory burdens without sacrificing protection of human
health or the environment." (State of New York Department of Environmental

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Conservation. CS2P-00144)

''EPA proposes to codify the "contained in" rule for contaminated environmental media.
as it as already done for contaminated debris. EPA also proposes procedures for
obtaining contained-in determinations for environmental media and debris by EPA
Regional Administrators and authorized state program directors. Environmental media
or debris, which has been determined to no longer "contain" a hazardous waste or
exhibit a hazardous waste characteristic, would no longer be subject to Subtitle C
management standards. The Department supports this effort and finds the proposal to
be in accordance with the direction of the national debate over the HWIR/harmonized
approach to contaminated media.

The Department also supports the following aspects of this proposal:

• The relatively flexible set of decision factors to be considered in making
contained-in determinations, including an "acceptable"risk range of 10 to 10.

• Requiring regulatory agency approval of the necessary demonstrations and
avoiding a self-implementing program.

• Utilizing petitioning procedures for parties to seek such determinations, with the
associated public notice requirements.

• Exempting activities which already come under significant public scrutiny from
the procedural requirements (i.e., petitioning). However, EPA has indicated
that the procedural exemption would only apply to RCRA closures and remedy
selections under RCRA (corrective action) and CERCLA. This is appropriate.
but it is also proposed that a similar procedural exemption be allowed for
parties, remediating sites under State-issued remediation orders. Such remedy
selection decisions are also subject to public notice and comment, through
records of decision or analogous administrative mechanisms.

As one final point, the subject of interstate disposal should be raised. Although it is
expected that each EPA Regional Administrator will give full faith and credit to
contained-in determinations made by other Regional Administrators, the same
reciprocity might not necessarily prevail at the State level. It must be expected that, in
the case of interstate disposal, each state will probably require that it make an
exclusionary determination if the material was generated or disposed of within its
borders." (State of New York Department of Environmental Conservation, CS2P-
00144)

"In our previous comments, we expressed strong support for the proposal that would
allow EPA regional administrators and authorized state program directors to make case-

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by-case "contained-in" determinations for environmental media and debris. Such a rule
would allow environmental media and debris to exit Subtitle C regulation when such
materials present little risk to public health or the environment. While our support for
this measure still does not alleviate the need for expeditious and comprehensive changes
to the "mixture." "derived-from." and "contained-in'' rules. Although these rules
represented a conservative approach to environmental regulation, all three have
frequently resulted over the years in misuse of the resources of both Society in general
and environmental regulatory agencies by focusing attention and regulatory
requirements on materials, thereby declared to be "hazardous," but which did not
present sufficient risk to either public health or the environment to warrant this label.

This Department has also observed, as have many others, that the "derived-from" rule.
in particular, provides one of the more significant disincentives to recycling and reuse
of listed wastes. In many cases, this rule causes residues from the reclamation or
production process to also become listed hazardous wastes, even though they may
contain little or no hazardous constituents and pose little risk. The same also applies to
residues generated by the burning of listed wastes for energy recovery. With regard to
recycling and reuse situations, this Department has urged EPA to codify an
"indigenous" rule that authorized states could administer. This would allow listed
secondary materials to cease being solid wastes upon entering a process that
legitimately reclaims, uses, or reuses the hazardous constituents. Residues from the
process, if not independently listed, should then be evaluated only in terms of
hazardous waste." (State of New York Department of Environmental Conservation
CS2P-00149)

"Contained-in Determinations

DWP is opposed to the proposed mechanism of having authorized agencies take the
determination that a given soil no longer contains a listed hazardous waste and is.
therefore, no longer contains a listed hazardous waste and is. therefore, no longer
hazardous. It seems unnecessary to have an agency make such a determination when
the proposed treatment standard for soils is in place. In many instances, generators
already have the responsibility of determining when a waste is hazardous or
nonhazardous; why not extend that responsibility for contaminated soils? Generators
should be allowed to determine that the soil is nonhazardous if all the hazardous
constituents are below the treatment standard.

DWP also suggests that EPA consider the application of certain treatment technologies
as a method of the delisting hazardous soils. This will eliminate the need for expensive
and time-consuming analyses.

DWP supports EPA's effort in establishing decision factors/criteria for obtaining
contained-in determinations for contaminated soils. However. DWP believes that these

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criteria and petition processes should be made applicable only to sites requiring a
variance from the proposed treatment standard because the contamination is extensive
or the soil cannot be treated to meet the proposed standard. In such cases, having an
authorized agency, a petition process, and decision factors/criteria to make a
"contained-in" determination seems more appropriate." (Department of Water and
Power the City of Los Angeles, CS2P-00155)

"TU supports EPA's codification of the "contained in" principal. This constitutes a set
of procedures and criteria to determine, on a case by case basis, concentration levels in
soil below which it will no longer have to be managed as hazardous waste. TU
believes this would greatly simplify the cleanup process.

"TU requests that EPA amend the proposal to provide that soils meeting the LDR
treatment standard for soil are automatically removed from hazardous waste regulation.
This is currently the procedure for contaminated debris. TU believes the petition
process should be solely reserved for soils that are above the treatment standards."
(Texas Utilities Electric Company, CS2P-00156)

"EPA Should Provide for Automatic Delisting of Soils That Meet "Minimize Threat"
Standards.

EPA has requested, comment on its proposed mechanism for making determinations that
contaminated soils no longer contain a hazardous waste. Under the Agency's proposal.
such determinations would be made on a case-by-case basis after consideration of such
criteria as the nature of the media and contaminating constituents an the proposed
disposal site. 58 Fed. Reg. at 48127-28. Such determinations could be made by the
lead Agency at CERCLA or RCRA remediation sites or through a petition process at
other sites. Id.

While US WAG agrees with the Agency that a method must be found to streamline the
"contained-in" determination for soils, the Agency's proposed approach will not achieve
that goal. Experience with the Agency's delisting procedures and other hazardous
waste variance processes indicate that such case-by-case determinations require the
generation and submission of copious amounts of data and take months and often years
to complete. Therefore, USWAG believes that the proposed procedure for making
"contained-in" determinations for contaminated soils will be such a long and
cumbersome process that it will not provide a meaningful mechanism to remove soils
from hazardous waste regulation in a sufficiently timely manner to be of use in non-
CERCLA or RCRA language. A lengthy petition process would simply become a
regulatory disincentive to voluntary cleanups.

USWAG therefore urges the Agency to provide that soils that meet the treatments
standard for soils established under the LDRs automatically be deemed to no longer

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contain the hazardous waste. By definition, the LDR standards are set at those levels
that minimize threats to human health and the environment and as much of the
hazardous constituent has been removed as is possible to achieve with demonstrated and
available technology. RCRA Section 3004(m). The contaminating hazardous waste
has been removed from such soils to the greatest extent possible and it makes no sense
to continue classifying such soils as "containing" hazardous waste.

Establishing numerical standards (or required treatment technologies) for contained-in
determinations would allow remediations to proceed in as expeditious a manner as
possible and would relieve persons conducting such remediations of the burden of
either managing soil that poses no genuine risk to human health or the environment as
hazardous waste or making an extremely burdensome showing to obtain a
determination that the soil no longer contains a hazardous waste. USWAG's suggested
approach would also remove a substantial disincentive that currently exists to
conducting remediations. which is the potential cost and difficulty of managing
excavated soils as hazardous wastes even after they have been treated to meet the
"minimize threat" standard. The establishment of automatic delisting levels would
enable parties responsible for site remediation to excavate soil, treat it in 90-day tanks.
containers or containment buildings, and replace it in the excavation without triggering
hazardous waste permitting requirements. The ability to manage soils in this manner
would reduce both the time and expense needed to perform a remediation without
sacrificing environmental protection.

EPA has already adopted this approach for contaminated debris, 40 C.F.R. Section
268.45(c), and many generators have successfully used this exclusion to treat debris in
an environmentally sound and economically reasonable manner. A similar approach
would be equally beneficial for generators of contaminated soil and USWAG urges
EPA to adopt it." (Utility Solid Waste Activities Group, CS2P-00162)

"BP Oil supports EPA's decision to defer consideration of contained-in policy
provisions to the HWIR rulemaking.

EPA's contained-in policy determines specific constituent concentrations at which
media at a specific site no longer "contains" hazardous waste and is no longer subject to
Subtitle C requirements. For practicality purposes, the contained-in process must be
considerably simpler than the existing hazardous waste delisting process. In addition.
EPA should determine that the contained-in level is also the "minimize threat" level, so
soil, once it meets the prescribed constituent levels, can be reused. There is a great
need to be able to reuse remediated soil within a particular plant site, for example, a
petroleum refinery, prior to final closure of that site.

A number of states have already instituted either regulatory-based or policy-based soil
cleanup requirements. Coordination of these requirements with EPA contained-in

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policy provisions is necessary in order that the regulated community obtains practical
relief when managing hazardous soil. The HWIR process and pending "harmonized
approach" appear to be able to provide the necessary coordination and accommodation
since below the Bright line material will be regulated outside of the Subtitle C system
by the overseeing agency which will be the state agency in most cases." (BP Oil.
CS2P-00163). " "

"A. The Contained-In Principle

In the September 14 notice, EPA proposed to codify the "contained-in" principle for
hazardous soil and other environmental media, whereby site-specific factors would be
taken into consideration to determine the concentrations at which contaminated media
would no longer "contain" hazardous wastes, and therefore would no longer be subject
to RCRA Subtitle C management standards. 58 FR 48127 (September 14. 1993). EPA
previously codified the "contained-in" principle for hazardous debris in an August 18.
1992 rulemaking. See 57 FR 37194. 37225 (August 18. 1992). The RCRA Corrective
Action Project strongly supports this recognition by the Agency of the need for a
mechanism for contained-in determinations.

In the soil BDAT proposal. EPA set forth specific factors, applicable to both hazardous
soil and debris, to be used in making such determinations. To the extent that
contained-in determinations are now available informally, they have proven to be of
great benefit in fostering early and cost-effective remediation. However, the project
cautions that the introduction of a highly formalistic process for making contained-in
determinations Could adversely impact the timing, cost, and feasibility of obtaining
such determinations, thus jeopardizing the Agency's goal of expeditious management of
hazardous waste-contaminated media. Several suggestions with regard to
implementation of the contained-in policy so as to avoid these eventualities are
discussed below.

1. The Contained-in Principle Should be Implemented Via Guidance
Rather than by Codification

At the outset, the RCRA Corrective Action Project encourages EPA to codify the
contained-in principle for hazardous soils and other environmental media, but to do so
in a general fashion similar to the authority granted to the Regional Administrator in
the contaminated debris rule to make such determinations. In that August 18. 1992
rulemaking, EPA codified the contained-in principle for hazardous debris by stating
simply that such debris need no longer be managed under RCRA Subtitle C where 'the
Regional Administrator, considering the extent of contamination, has determined [that
it] is no longer contaminated with hazardous waste." See 57 FR 37264 (to be codified
at 40 CFR 261.3(f)(2)).
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However, to preserve timeliness and flexibility in implementing the contained-in
principle, the factors used in making such determinations should be addressed in
Agency guidance rather than by codification. Furthermore, it has been our universal
experience that well-intentioned, but overly structured processes, such as the formal
petitioning procedures established for delisting, have ironically served to hamper timely
decision making.25 The Project members would be most interested in providing
constructive input to EPA on the appropriate factors to be considered in developing
comprehensive guidance for contained-in determinations.

2. Contained-in Levels Should be Site-Specific

The RCRA Corrective Action Project is particularly encouraged that the Agency
recognizes that contained-in determinations for contaminated environmental media
should be made on a site-specific basis, with a considerable degree of flexibility. As
EPA noted in its preamble discussion, the extreme variations in site and waste
characteristics necessitate a flexible implementation process. 58 FR 48127. To this
end. EPA has proposed a number of factors to be considered by the .implementing
agency in determining the appropriateness of a contained-in decision. Id at 48127-128.
Outlined below are the Project's concerns with respect to certain of these factors.

a. The Estimated Risk Range for Contained-in Determinations

In its preamble discussion, EPA lists as one of the factors that the Administrator may
consider when making a contained-in determination an "acceptable risk range of 10^ to
10"6." 58 FR 48128. In other words, the point at which environmental media would no
longer "contain" a hazardous waste is where human exposure is reduced such that the
incremental upper bound lifetime cancer risk presented by the media is one incidence of
cancer per 10,000 exposed population to one incidence of cancer per million exposed
population. The Project members support the use of risk ranges to provide the
necessary flexibility to balance site-specific and other considerations in contained-in
determinations. As the Agency noted in the preamble discussion. "EPA is proposing to
adopt specific formulae or other quantitative means of calculating appropriate
contained-in levels. The Agency believes that considerable flexibility must be allowed
for such decisions, if the process is to be workable." 59 FR 48127.

b. Only Plausible Exposure and Future Use Scenarios Should be
Evaluated
25 Indeed, the Agency's RCR.4 Implementation Study noted that "EPA's system for "delisting" (i.e..
desiznatme certain listed hazardous wastes as nonhazardous > is slow, onerous, ineffective, and at times, controversial."
See The Nation 's Hazardous Waste Management Program at a Crossroads - The RCRA Implementation Study. Office
of Solid Waste and Emergency Response. July 1990. p. 39.
-------
Another factor that EPA lists as bearing on contained-in determinations is the potential
for adverse human and ecological exposure to hazardous constituents. EPA has
concluded that "all possible exposure pathways' should be evaluated in determining the
appropriate contained-in levels. 58 FR 48127. Attempting to evaluate "all possible
exposure pathways," no matter how incredible, would result in unrealistically and
unachievably low contained-in levels which would eviscerate the purpose of the
contained-in concept.:6 Such an approach would lead to the son of unrealistic,
hypothetical risk evaluations which have been the target of so much criticism in the
Superfund program.

In addition, at the program level, if not always in individual site cleanups, EPA has
historically recognized that the future use of a facility should have a bearing on
remediation-related decisions. For example, in the preamble to the proposed Subpart S
Corrective Action rule. EPA stated that "groundwater that is not a potential source of
drinking water would not require remediation to a 10"* to 10"° level..." 55 FR 30798.
30826 (July 27. 1990).

The RCRA Corrective Action Project urges the Agency to promote the use of
reasonable and plausible exposure and future use assumptions when making these
highly variable, site-specific determinations. The utility of contained-in determinations
is dependent upon a realistic evaluation of potential exposures and attendant risks.

If the exposure scenarios and factors used are overly stringent (e.g., use of a residential
direct exposure scenario where the facility is a fenced, guarded industrial site
surrounded by other industrial sites), EPA will make the contained-in concept useless
for any real-world applications. Similarly, if contained-in determinations are
unnecessarily and overly stringent, few on-site treatment technologies will be able to
achieve the levels and on-site management and remediation or capital projects will be
seriously hampered. To avoid this result, the RCRA Corrective Action Project urges
the Agency to adopt the following clarifying language:

The assumption of a residential exposure scenario at all sites is inappropriate.
Use of an industrial exposure scenario is appropriate where the current zoning
of the property is industrial, is anticipated to be industrial, or where the current
industrial use is a legal, non-conforming use. This may include zoning
designations, depending on the community, such as "light industrial" or "heavy
industrial."
26 In addition. EPA should not elevate ecological nsks to a priority factor where the lack of available
scientific data for such determinations could significantly delay the decision making process and circumvent the
Agency's overarching goal of remediating contaminated media expeditiously. Remediation to protect human health
should be the first priority, and in manv instances would address significant environmental impacts.

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The Project notes that in most cases. RCRA sites are zoned for industrial or legal, non-
conforming uses. Therefore, residential exposures scenarios are clearly inappropriate
except to address contamination that has migrated off-site.
Moreover, if unrealistic residential exposure scenarios and hypothetical multi-pathway
analyses are applied, the resulting contained-in levels could unnecessarily be driven
below existing BDAT. Furthermore, the application of inappropriate exposure
scenarios can result in contained-in levels that are orders of magnitude more stringent
than necessary to protect human health. This point is illustrated by the following
concentration levels for residential and industrial exposure scenarios, developed under
the Michigan Environmental Response Act of 1982, Mich. Comp. Laws. Ann. Section
299 (West 1984 and Supp. 1993):
Health-Based
Drinking-Water Value (ug/1)
Residential Industrial
Soil Direct-Contact
Value (ug/1)
Residential Industrial
Benzene
Toluene
.,000
Tetrachloroethylene 0.7
1,1,1-Tri-
Chloroethane
200
Trichloroethylene 3

PCBs .02
12

4,600

6.8

580

.17
10.000
2E+07
8,000
2E+06
40,000
1,000
85.000
3.3E+07
49,000
4.2E+06
1.5E+05
7,500
Clearly, using residential exposure scenarios in an industrial setting would result in far
more contaminated media being managed in the Subtitle C program than necessary.
Conversely, determinations based upon realistic site-specific risk considerations would
yield contained-in levels that would: (1) allow the use of innovative technologies
capable of meeting the more realistic levels; and (2) avoid needless focus on low hazard
media. Therefore, EPA must ensure that unrealistic assumptions are not used, and that
exposure factors reflect site-specific conditions and reasonably foreseeable land uses.

c. Plausible Management Scenarios are Relevant to Contained-in
Determinations

In the September 14 preamble discussion, EPA stated that management scenarios would

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not be considered in deciding the appropriateness of contained in levels.27 58 FR
48128. The Project members note that by refusing to consider site-specific
management scenarios in such determinations the Agency is actually assuming, albeit
by default, a management scenario (e.g., uncontrolled access and exposure ) to define
its exposure assumptions. Accordingly, the Project urges the Agency to reconsider its
position. How contaminated media will be managed and disposed (e.g., access and/or
institutional controls, off-site Subtitle D landfill, or engineered on-site unit) is a key
element in defining reasonable site-specific exposure assumptions for ascertaining
contained-in levels. Obviously, the long-term reliability of the intended final
management option would also be a significant consideration. Needlessly over-
stringent contained-ion levels would limit the application of both innovative treatment
technologies and on-site treatment, and could drive those seeking contained-in
determinations to the use of thermal technologies.

3. RCAP Supports the Agency's Decision Not to Require Separate Contained-
in Determinations for RCRA Corrective Actions and Superfund Remedial
Activities

The members of the RCRA Corrective Action Project agree with the Agency's decision
not to require a separate process for contained-in determinations when cleanups are
being pursued under EPA's RCRA corrective action or Superfund remedial authorities.
Furthermore, it is obvious that there would be no need for a separate "contained-in"
determination with respect to contaminated media above the HWIR "bright line." as
such remedial activities will be undertaken with substantial EPA oversight and input.
In that regard, the Agency should also clarify that because wastes falling below the
HWIR "bright line" would not be subject to Subtitle C in any event, no "contained-in"
determinations would be necessary with respect to them. To require a separate
determination under any of these enumerated circumstances would needlessly and
redundantly delay implementation and increase the cost of remedial measures."3
It appears that the Agency has based its decision not to consider management scenarios m contamed-
in determinations on an erroneous interpretation of the DC Circuit Court s opinion in American Petroleum Institute v.
L'SEPA. 906 F.2d 729 (DC Cir. 1990). In that case, the court interpreted RCRA section 3004(m) to require
"treatment, i.e.. a BOAT, [to] substantially dimmish the toxicity of a waste or substantially reduce the likelihood ot'the
migration of its hazardous constituents prior to land disposal." Id. at 736. Put another way, RCRA section 3004(m i
precludes the treatment of hazardous waste subsequent to land disposal to meet the section 3004(m) "minimize threat"
level. However, the court's opinion does not preclude post-treatment land disposal management scenarios from being
considered in determining the appropriate "minimize threat'' treatment level. In fact, the court emphasized that, "if a
party meets the pretreatment standards set out by section 6924 and requests permission to subsequently place the treated
waste m a land treatment facility, we would interpret section 6924(m) as compelling EPA to grant that request." Id at
"36-737. fn. 8.

~8 Furthermore, the Agency should clarify that a separate "contained-in" determination would not be
required for cleanups associated with the Underground Storage Tank program. RCRA closures, or any other remedial
activitv where the Agency, by rule and/or order, already exercises a considerable degree of oversight.

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However, owners and operators preferring to conduct remedial activities on a truly-
voluntary basis should be able to utilize the contained-in procedures so as to expedite
such activity.

4. Contained-in Determinations Should be Subject to Administrative Appeal

The Agency stated in the preamble discussion at page 48128 that contained-in
determinations would constitute final Agency action and would not be subject to
administrative appeal. The Project members believe that EPA should allow for
administrative appeals in this context because such determinations are complex and can
have a significant impact on remedial activities at a site. In addition, to limit appeals to
the judicial arena is unnecessarily restrictive and presents the potential for protracted
legal proceedings which could ultimately delay progress more than an efficient
administrative appeal process. Accordingly, the Project members urge the Agency to
consider utilizing an administrative appeal process such as the one sanctioned by the
Environmental Appeals Board in In re. General Electric Company. RCRA Appeal No.
91-7 (EAB. April 13. 1993), whereby owners/operators are given the opportunity to
have their objections heard by EPA staff overseeing remedial activities and by a final
Agency decision maker. Note, however, that the Project is in agreement that the
conclusion of this appeal process must constitute "final agency action" for purposes of
judicial review." (RCRA Corrective Action Project, CS2P-00164)

"The LDEQ prefers that the criteria for the determination of "contained-in" listed in the
preamble must be addressed for all contained in determinations. This is needed to keep
ail determinations consistent across all types of sites requesting determinations, and to
keep all decisions consistent." (Louisiana DEQ, CS2P-00167)

"'Contained-in' Determination

AIHC's comments at this time focus on the "contained-in" determination mechanism
which was part of the proposal for treatment of hazardous soils on the September 14,
1993 FR notice. AIHC strongly supports the proposal to use a site-specific risk-based
approach to determine when 'contaminated media' no longer contain hazardous
constituents at a level such that the media itself must be considered hazardous.
Further, the AIHC agrees with the decision not to define specific formulae for this
determination. As set out by proposal, considerable flexibility must be maintained in
the process because of the 'extreme variations in site-specific and constituent-specific
characteristics' of contaminated soil.

In lieu of a specific formulae, the proposal provides a set of decision factors that should
be considered on a site-specific basis. AIHC concurs with the Agency that the factors
proposed are appropriate and that a more specific 'list' or set of 'conditions' are not

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required. Specifically, the AIHC agrees with the need to consider site-specific (e.g..
soil conditions, groundwater hydrogeology, surface waste conditions, climatic
conditions, land use. potential receptors') and waste-specific characteristics (e.g..
solubility, mobility, degradation, toxicity interactions) which may determine the
environmental fate of the hazardous constituents and the likelihood of impact of human
or environmental receptors. AIHC also encourages the use of a range for determining
'acceptable' risk.

AIHC also urges that guidance on the use of the risk assessment approach for
contained-in determinations be given to the EPA regional offices which administer this
program. AIHC recommends that the use of state-of-the-art science methodology (that
is. the inclusion of probabilistic modeling as opposed to worst-case default
assumptions, the use of environmental fate and transport modeling,, the appropriate
land-use scenarios) be specifically addressed in this guidance.

It is AIHC's position that risk assessments should be based upon realistic exposure
scenarios that assume current or future land use, incorporating any changes resulting
from earlier response actions known or planned. When available, site-specific
exposure and pathway information, including actual data, should be used to the
maximum extent possible. Not all risk assessment parameters need to be site-specific.
however. Probabilistic distributions for certain generic human parameters (e.g., body
weight and air intake) that do not vary from site to site are such exceptions. Factors
affecting the choice of exposure scenario (pathway), the distribution of the contaminant
in the media, the characteristics of the media, and the activity patterns and
demographics of the surrounding populations should be considered, whenever possible.
as site-specific concerns.

Finally, any uncertainty in the assessment itself must be clearly communicated.
including the impact of key assumptions. This is best accomplished with the use of
probabilistic modeling, which can be used to address the uncertainty and variability in
all exposure assumptions. Point estimates are useful, particularly for scoping
assessments; however, parameter values should be based on relevant site conditions.
The use of informed best professional judgment to fill data gaps as an improvement
over automatic reliance on fixed, worst-case default assumptions should be
encouraged. Again, the use of these judgments must be made explicit to the risk
manager." (AfflC, CS2P-00168)

"'Contained-in' Determinations

API agrees with EPA's conclusion that the codification of the 'contained-in' principle
should be addressed as part of the comprehensive review of the regulatory framework
for contaminated media in the HWIR proposal. API offers the following comments on
the 'contained-in' principle as it currently exists, and urges the Agency to address these

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concerns as it develops the HWIR proposal.

API continues to oppose the • contained-in' policy insofar as it implicates environmental
media that contain very small amounts of hazardous constituents. As both EPA and the
regulated community recognize, the contained-in policy — and the mixture rule which it
mimics — is overly broad, and captures materials within the Subtitle C program that do
not 'pose a substantial present or potential hazard to human health or the environment.'
(RCRA Section 1004(5)). To remedy this situation, API believes that there should be a
level at which soil no longer 'contains' a listed hazardous waste and therefore is no
longer subject to the RCRA Subtitle C requirements. Consequently, any future
codification of the ' contained-in' policy should regulate soils as if they were hazardous
wastes only where they truly pose a hazard to human health and the environment."
(API. CS2P-00169)

"Westinghouse Electric Corporation (Westinghouse) offers the following comments on
the Agency's proposal to defer promulgation of the Contained-in Rule portion of the
proposed Land Disposal Restrictions for Newly Identified and Listed Hazardous Wastes
and Hazardous Soils (58 FR 48092). This proposal deferral was published in the
Federal Register on March 8, 1994 (59 FR 10778). These comments are in addition to
the comments Westinghouse previously made, dated November 15, 1993.

The EPA. in 59 FR 10778, indicated it believes the 'contained-in' concept 'is one of
the key issues that must be addressed in the development of a comprehensive regulatory
framework for management of contaminated media.' Based on this premise, the EPA
is proposing to not codify the Contained-in Rule, as proposed in 58 FR 48092, and.
instead, will address the Contained-in Rule at a later date in the context of the HWIR
rulemakings.

Westinghouse is concerned that postponing promulgation of the Contained-in Rule until
the HWIR rulemaking is complete will unnecessarily delay and increase the cost of
cleanup activities. The EPA should not further delay codification of this most basic of
EPA policies. Linkage of this policy to the HWIR will only delay its use by authorized
states that are reticent to use 'policy' rather than regulations. Codification in a manner
consistent to that provided for debris (57 FR 37194) will provide structure to state
implemented programs to accommodate exclusion of many low-hazard soils from
Subtitle C regulation. Management outside Subtitle C of 'contained-in' soils, that have
only traces of listed wastes, will also conserve limited Subtitle C disposal capacity for
higher risk soils. Furthermore, the incremental money spent on Subtitle C disposal
until the HWIR rulemaking is complete could be better used to complete other
remediation projects." (Westinghouse, CS2P-00170)

"We also view the suggestion in the Proposal to tie 'contained-in determinations' to the
arbitrary proposed treatment standards as adverse to sound environmental and public

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health policy. By federalizing the contained-in policy through incorporation in a
HSWA-driven rulemaking, the Agency threatens to usurp authorities historically vested
in individual states who have, almost without exception, elected to accept the role of
regulating waste characterization under RCRA. (In footnote: The Agency should note
that the contained in policy is concerned primarily with waste identification, not with
subsequent treatment. Despite the Agency's action in setting alternative standards for
hazardous debris, whether the EPA has stringent is a matter of some doubt. In our
view, the action lacks a sound basis in policy. If the EPA's objective is to facilitate
clean-up at CERCLA sites by providing administrative relief from the ARARs,
Congress has already provided such a means in CERCLA itself.)" (USPCI, CS2P-
00171)

"The EPA Should Codify the Contained-In Policy However, the Effective Date Should
Be Delayed or the Regulation Modified to Maintain the Policy Authority in Authorized
States. Contained in Determinations Should Not Be Linked to the Proposed Soil
Standards

USPCI believes that it may be appropriate to codify the contained-in policy to provide
clear guidance regarding what factors bear on contained-in determinations and how
those may be applied. By codifying the policy, the EPA creates an obligation for
States to promulgate a corresponding requirement within two years to retain their
authorization. Regulations promulgated under RCRA authority do not become
effective in authorized States until the State adopts them or promulgates and equivalent
regulations. However, regulations promulgated pursuant to the HSWA are effective in
every State upon Federal promulgation and may only be implemented by the EPA until
a state becomes authorized. For reasons related to applicability, it is therefore
important to understand whether the contained-in policy is being codified pursuant to
the HSWA or the RCRA or both statutes together. The Proposal is unclear as to which
authority the EPA views its action as falling within. Although RCRA provides the
clearest authority, it is conceivable that the Agency could view the proposal as HSWA-
based. (In footnote: We believe that HSWA does not provide any direct authority to
promulgate the contained in policy and that the contained-in policy codification must be
founded in RCRA alone.) Depending on the EPA's viewpoint and whether the Agency
elects (inappropriately) to tie contained-in determinations may become an irreconcilably
mixed question of State and Federal law. (In footnote: It is well settled that EPA lacks
authority to enforce the Federal program in an authorized State.)

We are concerned that if the EPA views its action as resting on HSWA in any pan,
individual states will lose the flexibility they have exercised in the past in addressing
site-specific waste management problems and that all such determinations will be
transferred to an EPA that is ill-prepared to handle the task. It appears that the Agency
views the proposed codification as grounded solely in RCRA. The EPA should clarify
that point in a final rulemaking to avoid the situation where states are deprived of their

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traditional authority and responsibility by a procedural anomaly in the enabling statute.
In the alternative, the EPA should delay the effective date of the codified policy. No
policy interest would be impaired by such an action. The contained-in policy currently
in place would continue in effect, and nothing would prohibit individual states' reliance
on the regulatory factors proposed. In the alternative, the Agency should modify the
regulation to provide that, in states authorized to implement the federal program under
part 261. This regulation is within the Agency's authority and would prevent loss of
traditional state roles and continue to assure that those persons most knowledgeable
about site-specific factors affecting contained-in determinations remain involved in
those decisions.

We disagree strongly with the suggestion that the proposed soil treatment standards
should be linked to contained-in determinations. Although the EPA notes that there is
no absolute bar to both the minimized-threat level and the contained-in level occurring
at the same numerical value, the proposed soil standards do not minimize threats to
human health and the environment. This is certainly true as a matter of federal policy
because it would apply without regard to site-specific characteristics. Moreover, the
actual numerical standard achieved in compliance with the proposed soil standards is. at
best, a floating value ranging between the UTS value and ten times that number. Thus.
the value ultimately achieved is completely speculative. For some constituents with
large UTS base values, the difference between the number the EPA has determined is
actually achievable and the value actually achieved can be several hundred ppm. For
example, the UTS base value for contained-in non-wastewaters is 160 ppm. Under the
most restrictive proposed soil standard, a soil contaminated with as little as 1.6%
acetone would be treated to comply with the proposed standards when it contained 1600
ppm residual acetone. (In footnote: We suppose the Agency could respond with the
inappropriate argument that a soil is unlikely to contain 1.6% acetone because acetone
is volatile and much of a material spilled could escape to the ambient air. Acetone is
merely a convenient example because it appears as the first constituent on the UTS
table. Similar values apply in the case of less volatile and constituents including,
Dinitro-cresol , Dinitro-phenol and Methyl methacrylate. It should be noted that these
high LDR values drive principally from difficulties in analyzing the constituents at
lower levels in waste matrices. Thus, the values say very little about the actual
treatability of these constituents. Instead, the values reflect present limitations
concerning determinations of treatment effectiveness. When an arbitrary factor, even
under the 90% and 10XUTS scenario, is applied compliance with the LDR standards
will be attained within ranges where concentrations are measurable with confidence. It
is these actual numeric values upon which any contained-in determination should be
based-not on a value that represents as much as ten times the limit of our analytical
uncertainty.)

Even at individual sites, equating contained-in determinations with the proposed soil
standards is not justified. The UTS standards are BDAT standards. Thus, they are

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based on the performance of technology, not on the incidence of risk. Contained-in
determinations, however, are based solely on an inquiry into the risks presented by
particular constituents at a particular site. A standard that conveys, for example that
technology X can optimally produce residues containing Y ppm of constituent Z says
nothing about the risks posed by constituent x or about whether a soil continuing
constituent x at that level should be regarded as a hazardous waste.

USPCI believes that the proposed factors proposed as considerations in contained-in
determinations are generally reasonable. However, we do believe that risk levels in the
1(T4 range are unacceptably high." (USPCI. CS2P-00171)

"Westinghouse Savannah River Company (WSRC) encourages EPA to codify the
contained-in policy without further delay. Currently, determinations as to whether or
not contaminated media "contain" hazardous waste are made by the individual EPA
regions or authorized states, often with no consistency between regions or states.
WSRC believes that codification oft he contained-in policy would establish a
subjective, consistent method for determining whether contaminated media are subject
to Subtitle C regulation." (Westinghouse Savannah River Company, CS2P-00174)

"Dow supports the Agency's proposal to make contained-in decisions on a site specific
basis without set criteria, specific formulae or quantitative means of calculation. The
process should appropriately consider the actual disposal site for the treatment residue.
i.e., it should consider how the waste will be managed. We feel that such
considerations should also not prohibit off-site placement of the treatment residue in
certain cases.

The agency should also establish criteria, or concentrations which would allow self-
implementing contained-in determinations. Such a procedure is necessary to avoid
either 1) the massive amount of paperwork required to handle the petitions necessary to
conduct the large number of diverse clean-ups that will be taking place, or 2) the
tendency to simply leave waste in place rather than handle it and go through the full
procedure of applying for a contained-in determination. Such self-implementing levels
should be risk based; the "bright line" levels that are a part of the HWIR discussion
could either serve this purpose or they could actually reduce or eliminate the need for
contained-in decisions since any waste with concentrations below those levels may not
be hazardous wastes. Other possibilities for self-implementing contained-in levels
could be 10 x UTS level, the UTS level, soil screening levels or Subpart S levels. At a
very minimum detection levels using SW-846 methods should be established as self-
implementing contained-in applications." (The Dow Chemical Company, CS2P-00184)

"CONTAINED-IN DETERMINATIONS MUST ACT TO EXEMPT MEDIA FROM
LDR STANDARD UNDER PART 268: FURTHER, PART 268 'MINIMIZE
THREAT' LEVELS MUST BE RISK BASED AND TAKE INTO CONSIDERATION

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MANAGEMENT PRACTICES. Dow supports the use of site-specific 'decision
factors' to be considered when making contained-in determinations. (See for example.
the list of factors at p.48127-128 of the Proposed Rule. 58 Fed.Reg. 48092. September
14. 1993). Dow believes that a base-line criteria should be established, under which, if
the criteria are met, a contained-in determination would be self implementing. Only if
the base-line criteria were not met would a petition be necessary. Under a petition, the
Administrator would consider the site-specific decision factors in making the contained-
in determination. An affirmative decision under the contained-in program, whether sel-
implemented or by petition must act as an exit from hazardous waste regulations and
from LDR standards. Contained-in and minimize threat levels are not necessarily the
same.

Dow strongly object to EPA's claim that minimize threat levels may not consider
management practices. Such a claim, which the agency backs with a weak reference to
RCRA §3004(m), flies in the face of EPA's own actions and does not comport with
RCRA §1004. EPA moved to exempt from subtitle C regulation contaminated media
from underground petroleum tanks. To quote EPA's own language on why
management practices are properly considered:

Section 1004 of RCRA defines a 'hazardous waste' as a solid waste which may
pose a substantial threat 'when improperly**""managed.' In addition, section
3001 of RCRA authorizes EPA to determine whether subtitle C regulation is
appropriate in determining whether to designate a waste as 'hazardous.' EPA
thus may determine that subtitle C regulation is not appropriate because such
wastes are not 'hazardous' when properly managed and, based on existing
regulatory programs, would not be mismanaged. Under this approach,
regulation of UST petroleum-contaminated medal and debris under subtitle C is
not necessary to protec human health and the environment, due to the presence
of the Federal subtitle I regulations for underground storage tanks and the UST
programs that are active in each of the States. (58 Fed. Reg. 8504, 8507,
February 12, 1993).

This matches perfectly with contaminated soils that would be managed under a codified
contained-in policy or a minimize threat determination. More importantly, it makes
sense from the viewpoint of protection of human health and the environment. It would
be counterproductive to a goal of environmental protection not to consider management
practices under minimize threat determinations. EPA's proposal not to consider
management practices merely builds one more unnecessary roadblock to effective
remediation and protection of human health and the environment." (Dow, CS2P-00184)
Response: The commenter notes a 'weak' reference to section 3004 (m) as justification for
why management practices may not be considered in granting contained in determinations, and
further argues that minimize threat determinations should not be established at lower levels
than contained in levels. First, both the legislative history to section 3004 (m) states

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emphatically that engineered barriers are not to be considered in determining if threats have
been minimized, due to the inherent uncertainties in assessing long-term effects of land
disposal of hazardous wastes. S. Rep. No. 98-284 at 15: H. Rep. No. 98-198 at 38. The
D.C. Circuit has likewise held that threats must all be minimized before land disposal occurs.
API v. EPA. 906 F. 2d at 735. EPA thus has no doubt that its position is fully supported by
statute, and does not rest on weak authority. In response to the comment that contained in
levels cannot be greater than minimize threat levels. EPA again disagrees. As the commenter
notes, contained in determinations are presently made on a relatively ad hoc basis. There are
desirable reasons for this degree of flexibility. However, a consequence of such an uncodified
and unquantified regime is that EPA is unable to find that the determinations adequately result
in levels that minimize threats to both humans and to the environment.
• 'DOW OBJECTS TO THE AGENCY'S CLAIM THAT CONTAINED-IN
DETERMINATIONS WOULD NOT BE SUBJECT TO THE RIGHT OF
ADMINISTRATIVE APPEAL. 58 FED. REG. 48128, SEPTEMBER 14. 1993.
Administrative appeals serve a basic function in our system of government by allowing
appeals of actions by bureaucratic agencies that the aggrieved party believes to be
arbitrary, capricious, an abuse of discretion or otherwise contrary to law or regulation.
They also serve to help conserve scarce judicial resources and to make more effective
use of the resources of both the regulated party and the agency. Administrative appeals
are a fundamental right that EPA cannot simply wish away in a heavy-handed attempt
to deflect objections to Agency decisions that critically affect the legitimacy, costs and
effectiveness of environmental remediation efforts. The mere fact that EPA has made
such a bald attempt to cut off the right of administrative appeal is a strong argument to
ensure the affirmation of the right. Despite the Agency's desire to limit the rights of
the regulated community, that does not translate into an arbitrary authority to do so.
The agency must affirm the rights of the regulated community to administrative
appeal." (Dow. CS2P-00184)

• 'Paragraph VIJJ.D, page 43127, Contained-in Determination. The proposed rule
requests comments on the approach for a ''contained-in" determination, decision factors
to be used, the procedures for making determinations, and the proposed linkage to
treatment standards and RCRA Subtitle C exclusion levels.

a. Linkage to RCRA Subtitle C exclusion levels. The Army supports a three tier
system as proposed for hazardous waste under the Hazardous Waste Identification Rule
in the 20 May 92 Federal Register. The tiers would be established by health based
standards for each hazardous constituent. Hazardous media with constituent
concentrations above the upper limit (tier 1) after treatment would remain regulated
under RCRA Subtitle C.

Hazardous media with constituent concentrations below the lower limit (tier 3) would
be excluded from RCRA Subtitle C regulations. Hazardous media with constituent
concentrations between the upper and lower limits (tier 2) would petition for a RCRA

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Subtitle C exclusion determination.

(1) Media with constituent concentrations in the lower tier (tier 1) would automatically
be excluded from RCRA Subtitle C regulations and should only require a notification
and not a petition. This waste would no longer ''contain" hazardous constituents. The
"contained-in" determination would be self implementing.

(2) Media with constituent concentrations in the middle tier (tier 2) would petition for a
RCRA Subtitle C exclusion determination. The petition could be for a "contained-in"
determination so the media could be left on site or for a 'management" determination
that places requirements on how the media is managed when disposed.

b. Hazardous Debris. The same determination procedures proposed for hazardous
media are also proposed for hazardous debris. The three tier system should also apply
to hazardous debris. Hazardous debris with constituent concentrations in the lower tier
(tier 1) would automatically be excluded from RCRA Subtitle C regulations and should
only require a notification and not a petition. This determination should be self
implementing. Hazardous debris with constituent concentrations in the middle tier (tier
2) would petition for a RCRA Subtitle C exclusion determination.

c. Decision Factors.

(1) Statistical comparison to background levels in the proposed "contained-in"
determination should be included. The Army believes there should be a provision in
the proposed exemption rule to make statistical comparisons to background levels.
Otherwise, a media could be classified as a hazardous waste due to the naturally
occurring concentration of a constituent and not because of past "generator" activities.
The proposed rules imply a facility may be required to remediate a particular
constituent to a concentration below its naturally occurring concentration in the soil.
The generator may not have spilled any material on the soil with this particular
constituent. Without this provision facilities may not be able to meet an exemption
criteria.

(2) Direct human contact (ingestion) with the soil should not be used as a decision
factor in all cases for determining exemption levels. Unconstrained disposition of
contaminated media should not be assumed in all cases. Hazardous waste and most
solid waste facilities have security systems which control access to the site. Along with
access control, future use of the land should be considered before assuming direct
human contact when determining exemption levels.

(3) Site specific criteria, such as low hydraulic conductivity and area locale, should be
factored into the decision making. This should not create a significant burden to
regulatory agencies. Many remedial investigations are already conducted under

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regulatory supervision either under the Comprehensive Environmental Response
Compensation and Liability act (CERCLA) or the Resource Conservation and Recovery
Act (RCRA).

(4) Bioassay tests (demonstration) should not be included as a potential exemption
requirement. The main problem with these tests is that the results are biased towards
the test species used. The implementation will be extremely subjective through Agency
oversight.

(5) Constituent specific characteristics should be included in the decision processes.
This includes constituent concentrations, mobility, and persistence.

d. Determination Procedures.
(1) The proposed regulations state the "contained-in" determination wold not be self-
implementing. The contained-in determination will be made by the EPA Regional
Administrator or designee on a site specific basis.

(a) The approach to only allow a "contained-in" determination through a petitioning
process with the final decision made by the Regional Administrator is appropriate in the
short term. A framework is still needed that provides for a self implementing
determination for contaminated media from RCRA Subtitle C requirements.

(1) The assumption in the RCRA hazardous waste program that all wastes will be
mismanaged may have had validity in the early years of the program prior to
widespread compliance and enforcement mechanisms. Today, a more realistic
approach is needed which considers how hazardous waste/media is actually managed by
the regulated community. If laws and regulations were routinely structured to assume
at the outset that those impacted by the requirements wold not comply, as was done
with RCRA, the results would be disastrous for the economic well being of this
country. The "contained-in" approach is good but other exclusion operations need to be
developed based n health risks and how the disposed waste is managed. These
exclusions would have to be self implementing. This approach also takes into
consideration the importance of targeting limited environmental funding resources on
the problems posing the greatest risks.

(2) The EPA should recognize generator self interest in avoiding potential liability are
certain to lead them to erect their own safe-guards to ensure all media is properly
treated and disposed even with a "contained-in" determination or other RCRA Subtitle
C exclusion.
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(b) If omnibus authority is given to the EPA Regions for additional analytical
requirements and other data requirements beyond the base Federal RCRA requirements.
then the effectiveness of implementing this program could be limited. Such limitation.
based on Regional judgements, is inconsistent with the concept of a uniform national
program, and should be strongly discouraged.

(2) For this proposed rulemaking to be effective, the states will have to adopt
regulations for a "contained-in" determination and the treatment standards for
contaminated media. These proposed rules could be considered less stringent and
reduced in scope from the existing Federal RCRA program which most states have
adopted. States wold not be required to adopt these proposed rules. This view
effectively eliminates most of the regulatory relief the EPA set out to provide the nation
by engaging in this rulemaking. Although some states may choose to adopt a
"contained-in" determination and these treatment standards for contaminated media,
absent a Federal mandate, the incentives for change from existing overly conservative
state regulation are few. The EPA should maintain a position that the adoption of these
rules are fundamental to the RCRA Land Disposal Restriction program and require
state adoption. If not. there will not be a consistent national model.

e. Waiver of the procedural requirements for a "contained-in" determination for those
subject to public notice under RCRA or CERCLA. The Army concurs with the
provision for establishing a waiver procedure. The current levels of program'oversight
by EPA should be sufficient for a "contained-in" determination and therefore meet the
notification requirements. To utilize the program under CERCLA. the use of the
Public Information and Response Plan should be considered fully adequate for public
notification." (Department of the Army, CS2P-0160)

''EPA requests comment on decision criteria for evaluating petitions for obtaining
"contained-in" determinations for contaminated media.

As noted in Item Vn.B.3. of these comments, DOE supports codification of the
"contained-in" policy for hazardous soil and other environmental media. The
Department, however, believes that the Agency should include a suitable self-
implementing alternative (to the proposed petition review procedure) for making
"contained-in" determinations involving hazardous soils. DOE urges EPA to consider a
regulatory approach that would require the petition process only when hazardous
constituents in the media exceed the UTS levels (in lieu of or until "minimize threat
levels" or appropriate risk-based levels are established). With regard to cases where a
petition would need to be submitted to the appropriate regulatory agency, DOE believes
the Agency should identify specific criteria that must be included in the application for
a "contained-in" determination. Each of the criteria identified should be thoroughly
explained so that the regulated community is fully knowledgeable of the information
requirements related to making such determinations. For example, will the EPA

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require submittal and approval of sampling and analysis plans and quality
assurance/quality control procedures prior to collection of samples in order to ensure
that such samples are representative of the area of contamination in question?

DOE recommends that the Agency provide more specific guidance regarding data that
must be gathered and submitted in support of decisions regarding "contained-in"starus.
that the level of quality assurance/quality control associated with these data be
specified, that methods used to calculate "acceptable" human health risk factors be
specified, that waste characteristics such as persistence and potential to bioaccumulate
be included in the criteria, and that the method use by the Agency to reach final
decisions regarding the "contained-in" status of hazardous soil be specified. Further.
DOE recommends that the Agency should include criteria such as contingent
management options for soils that are hazardous only due to the derived-from or
mixture rules and that only slightly exceed the risk rang of 10"* to 10~6. For example, a
determination that a soil no longer "contains " hazardous wastes might be made for
hazardous soils that exceed the allowed risk range, on a case-by-case basis, provided
such soils were managed on-site in a manner that adequately protects human health and
the environment. It also seems appropriate for EPA to provide clarification regarding
the time periods that would be involved for making "contained-in" determinations and
the status of the hazardous soils during the period of time between the submittal of a
"contained-in" determination request and the final decision.
In addition to the proposed requirements, it seems reasonable for EPA to request the
following information in the petition in order to properly evaluate submittals:

A. identification of the SOURCE of the contamination IF AVAILABLE AND
KNOWN (260.42 as proposed requests an explanation of the circumstances by
which the media became contaminated, which could be interpreted to mean only
a description of an event such as a transportation accident):

B. estimated volumes of soil which will be affected by the "contained-in"
determination;

C. intended disposition of soil (e.g., to be managed in a Subtitle D landfill, to
remain in place, etc.) [The language in 260.42(c)(3-7) appears to assume that
the waste will remain in place;

D. any analytical data which is available (while avoiding requirements for extensive
testing, at least for RMW, due to the analytical difficulties detailed above).

EPA solicits comment on whether the final rule should specify a list of criteria that
must be considered.

DOE believes that identifying the general criteria (see comments in Section Item

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Vn.D.l.. above) and advising the regulated community on how to structure the
application will promote consistency as long as that criteria and structure are not unduly
specific or restrictive.

EPA proposes to waive from the procedural requirements of the "contained-in"
determination those already subject to public notice under RCRA or CERCLA
authority.

DOE supports EPA's proposed approach (under 2604.42(a)) that would waive the need
to submit a "contained-in" determination petition (and waive the other associated
procedural requirements) for remedial actions conducted pursuant to RCRA or
CERCLA authorities provided that a similar determination is made (by the EPA
Regional Administrator) based on "substantially equivalent" information, and similar
public notice and comment requirements." (DOE, CS2P-00161)
"We also view the suggestion in the Proposal to tie "contained-in determinations" to the
arbitrary proposed treatment standards as adverse to sound environmental and public
health policy. By federalizing the contained-in policy through incorporation in a
HSWA-driven rulemaking, the Agency threatens to usurp authorities historically vested
in individual states who have, almost without exception, elected to accept the role of
regulating waste characterization under RCRA.:9" (USPCL CS29-00171)

"Unocal supports EPA in its decision to codify the "contained-in" principle to the extent
that there should be a level at which soils no longer "contain" a listed hazardous waste.
The deferral of the codification to the HWIR rulemaking is appropriate in that the
HWIR came out of EPA's effort to revise the "mixture" and "derived-from" rules and
the "contained-in" policy is related to these rules. Unocal supports API's assertion that
any future codification of the "contained-in" policy should be risk based. Furthermore.
Unocal strongly contends that any risk based approach used in HWIR, including the
"contained-in" policy, should only include exposure pathways that are plausible and
scientifically credible." (UNOCAL, CS2P-00185)

"Page 48155, Part 260-Hazardous Waste management System: 'General; S 260.42
Procedures for contained in-determinations for hazardous debris, hazardous soil
and other environmental media.
The Agency should note that the contained in policy is concerned primarily with waste
identification, not with subsequent treatment. Despite the Agency's action in setting alternative standards for .
hazardous debris, whether the EPA has the authority to intrude on state programs to make them less stringent is a
matter of some doubt. In our view, the action lacks a sound basis in policy. If the EPA's objective is to facilitate
clean-up at CERCLA sites by providing administrative relief from the ARARs. Congress has already provided such a
means in CERCLA itself.

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a. This section states that a person may petition the Regional Administrator to exclude
hazardous debris, hazardous soil and other environmental media from regulation as
hazardous waste if the debris, soil or media do not pose a hazard to human health and
the environment at the site. The Regional Administrator will base this determination
on site specific information.

The Minnesota Department of Agriculture (MDA) requests that states that are
authorized with primary enforcement responsibility for the Resource Conservation and
Recovery Act (RCRA) be allowed to make contained-in determinations, rather than the
Regional Administrator, after the state has enacted equivalent authority and has been
granted authorization by the Environmental Protection Agency (EPA) to administer the
program. The Minnesota Pollution Control Agency is authorized with primary
enforcement responsibility for RCRA in Minnesota.
States authorized to enforce RCRA. rather than the Regional Administrator, should be
allowed to make contained-in determination because the state may be able to make the
determination in a more timely manner, will make consistent determination s in
accordance with state programs and policies, and will be readily available for
consultation with the public.

b. This section states that petitions for contained-in determinations would not be
necessary for remedial actions conducted pursuant to RCRA or the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA) provided that a
similar contained-in determination is made by the Regional Administrator based on
substantially equivalent information. After the state has enacted equivalent authority
and been granted authorization by EPA to administer the program, the State RCRA
Director will be able to make the contained-in determinations

Some RCRA authorized states also conduct remedial actions that are not under RCRA
or CERCLA authorities. The MDA believes that the exemption for petitioning the
Regional Administrator for contained-in determination should be extended to non-
RCRA or non-CERCLA cleanups that are being conducted under the oversight of
RCRA authorized states. A contained-in determination would be made by the State
RCRA Director for these sites based on information substantially equivalent to that
which would be submitted to the Regional Administrator.

c. This section also states that the Regional Administrator will publish a newspaper
notice of the proposed decision and provide a 30-day public comment period, however.
the Regional Administrator is obligated only to consider the comments when making
his/her determination. The introduction to the proposed rule does not state why a
public notice and comment period are necessary for contained-in determinations.

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Presumably since the contained-in decision is partially based on risks to human health
and the environment. EPA thought that the public should have a chance to review the
petitions and comment on the decision.

Public notice and comment is required in the RCRA and CERCLA programs to
purpose the selected response action to the community following an investigation of the
site. The MDA sees the value in a public notice, meeting and comment period for
RCRA and CERCLA for community acceptance of the proposed response action.

However, the MDA prefers that the contained-in decisions for non-RCRA and non-
CERCLA sites be made by the authorized states without public notice and comment.
The MDA does not see the value in providing public notice and comment for a
contained-in determination, as this determination may be made after the hazardous
constituents in the media have been remediated to low levels which do not pose a threat
to human health or the environment. The determination may also be made that the
hazardous media do not pose a threat to human health and the environment and do not
require any treatment, even though the hazardous media contains low levels of listed
hazardous constituents. In either situation the media do not pose a threat to human
health and the environment, and little is to be gained by further treatment, if the threat
has already been removed. We are concerned that the public will not accept
environmental media that has any amount of hazardous constituents within it and will
request further reduction of hazardous constituent levels which may add tremendous
cost with little gain

In addition, this requirement may lengthen the investigation and/or remediation process
for the site.

d. The preamble to the proposed rule states on page 48127 that a contained-in
determination "may be made prior to treatment or subsequent to treatment" This
statement is not found in the proposed rule under S268.47. The MDA requests that
this concept be clearly stated in the final rule so that there if there are some hazardous
constituents but do not pose a hazard to human health and the environment then a
petition for a contained-in determination can be made without any treatment of the
hazardous soil." (Minnesota Department of Agriculture, CS2P-00186)

"WE SUPPORT THE CODIFICATION OF THE CONTAINED-IN POLICY AND
ENCOURAGE EPA TO ESTABLISH FLEXIBLE CRITERIA VIA GUIDANCE

EPA should modify the contained-in policy for soils in a manner that provides clear
understanding of contained-in to the States, but reserve the establishment of detailed
contained-in determination criteria for guidance to preserve the flexibility and
workability of contained-in (CI) determinations. We have found the CI process to be
an effective, workable and protective means allowing States to reasonably exempt low

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level hazardous soils from unnecessary restrictions while ensuring protective
management of those materials. Codifying the concept would give further comfort to
those States who have expressed concern about the status of contained-in. In doing so
we would encourage EPA to be consistent with previous EPA policy on the topic which
makes it clear that there must be clear evidence and knowledge that constituents present
in a material come from a listed waste to apply a listed code. Such an approach
clarifies that there is no presumption that contaminated soils contain hazardous waste I
n the absence of clear evidence that they do.

However, we strongly discourage EPA from codifying the criteria for making CI
determinations. The criteria proposed in the soil LDR rule are reminiscent of the waste
delisting criteria. We have not found the delisting process to be a model of streamlined
flexibility, and are concerned that a similar system should result in significant delays in
arriving at contained-in determinations, and thus in remediation activities, without any
offsetting benefits. The States are already capable of making appropriate CI decision.

Accordingly, we snuggest that EPA lay out contained-in criteria in guidance, rather
than in regulation, to preserve the needed flexibility in the process.

For CI to bring relief to remediation it must also be a cap to treatment levels. Granting
a CI determination and then requiring treatment to a lower "minimized threat" level
would undo any potential benefit from CI. Therefore, we urge the Agency to make
clear that CI determinations will also serve as minimized threat determinations.

Contained-in Determination Should Incorporate Realistic, Site Specific
Considerations

Contained-in level determination should be site specific and risk based, and we support
the need for flexibility in making these determinations. In making contained-in
decisions, realistic evaluations of potential risks, taking into account current and
reasonably foreseeable land use, must underlie the determinations. To employ overly
conservative, hypothetical risk scenarios (such as the "all possible exposure: language
in the preamble to the proposed rule) is not only inappropriate, but would often result
in contained-in levels so low as to be of no value. The purpose of these determinations
should be to exempt low hazard remediation wastes from unproductive regulatory
requirements in an efficient manner. If the process is either excessively cumbersome or
results in unrealistically low exemption levels int will not serve that purpose.

The final disposition of material should be relevant in contained-in determinations as it
effects exposure potentials. Contained-in determinations will typically be made in the
context of overseen remedial activities at industrial sites, such that the final disposition
of materials can be reasonably evaluated in the context of a contained-in determination
and ensured through a Remedial Action Plan.

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We fully support EPA's proposal that decisions made in the context of Superfund and
RCRA Corrective Action Sites don't require separate contained-in determinations.

In any formaiization of the contained-in concept we encourage EPA to ensure that
determinations be subject to administrative appeal. Such determinations can have
significant impact on an owner/operator. Limiting appeals to the judicial arena is
unnecessarily restrictive and presents the potential for protracted legal arguments that
could more readily be resolved in an administrative process." (DuPont, CS2P-L0003)

"We support the codification of the core concepts of the contained-in policy and
encourage EPA to establish contained-in criteria through guidance." (DuPont. CS2P-
L0003)"

"CONTAINED-IN DETERMINATIONS

Decision factors for making a "contained-in" determination are outlined on pages 48127
and 48128 of the September 14. Federal Register. On page 48128. EPA requests
comment on the contained-in decision criteria. Specifically, ''(1) Should the final rule
specify a list of criteria that must be considered: (2) should the criteria listed above
[seven decision factors are presented, ed. note] be more specific regarding the
conditions which would allow for or preclude contained-in determinations; and (3) are
there other factors the Agency should consider when making contained-in
determinations, in addition to those listed above?

OHM fells that the decision factors as currently presented need substantial expansion.
In response to the first point, we do not feel that these criteria need to be codified in
the rule. EPA noted that flexibility was important in making "contained-in"
determinations and OHM agrees that flexibility is important in addressing
environmental problems that may pose unique, site specific issues. However, clear
national guidance must be provided in order to ensure consistent treatment of wastes
and the protection of human health and the environment. Guidance documents, by
their nature, allow more flexibility than criteria established in rules but these guidance
need to be established early in the process to avoid wide disparity among EPA Regions
in making contained-in decisions.

In addressing the second point, OHM feels strongly that more specific guidance is
required. For example, one of the decision factors listed was "an acceptable risk range
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of 10 to 10." This statement does not clearly indicate that cancer risks are being
considered, does not include decision factors for noncancer endpoints. and provides no
guidance as to the desired (target) end of the cancer risk range. As another example.
the potential for exposure of sensitive environmental receptors is listed as a factor that
must be considered, yet even at well studied Superfund sites, clear objectives for
assessing ecological exposure and risks are generally not available. Without clear
definitions and objectives, approaches to addressing potential risk to environmental
receptors may be widely variable in different EPA regions and could be used to prevent
delisting of wastes or at least to give the appearance that such delisting might not be
possible. Without defined objectives, site cleanups (and in particular, voluntary
cleanups) may be strongly discouraged.

The seven decision factors are all site characteristics that affect the potential for risk.
Rather than simply presenting a short, and quite probably incomplete list of
characteristics that affect risk OHM recommends that EPA revise its discussion of the
decision factors to focus on the risk management criteria that must be achieved. These
criteria could be spelled out in the rule, with the scientific factors that need to be
considered (risk assessment issues) present in accompanying guidance. For example:

In making a contained-in decision, the following conditions must be satisfied:

• All cancer risks must be regulated to within a risk range of 10 to 10, with a
cancer risk level of 10 used as a target risk goal.
• The site must not pose a risk due to systemic effects.
• The site must achieve adequate protection of ecological endpoints.

Response: All the comments in this section address EPA's proposal to codify the so called.
"contained-in" principle. The contained-in principle is the basis for EPA's longstanding policy
regarding application of RCRA Subtitle C requirements to mixtures of contaminated media and
hazardous wastes. Under the contained-in policy, media contaminated by listed hazardous waste
are not wastes themselves but, because the contain hazardous waste, must be managed as
hazardous waste unless or until they are determined not to or no longer to contain hazardous
waste. See Chemical Waste Management v. EPA, 869 F.2d 1526. 1439-40 (D.C. Cir. 1989),
upholding this as a reasonable interpretation of the mixture and derived from rules. Implicit in the
contained-in policy is the understanding that when hazardous constituents reach certain
concentrations, media mav be determined not to contain hazardous waste.
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In order to preserve flexibility and because EPA believes legislative action is neecei. :r.r Agency
has chosen, at this time, not to go forward with the portions of the September 14. ; 99? ;r April
29. 1996 proposals that would have codified the contained-in policy for contaminated «.:_$. The
Agency continues to believe that legislation is needed to.address application of RCRA ?._ title C
requirements to hazardous remediation waste, including contaminated media. If Iegisia~:n
occurs, the Agency will likely re-examine its approach to remediation waste, including
contaminated soil. If legislation is not forthcoming, the Agency may, in the future, re-exinune its
position on the relationship of the contained-in policy to site-specific minimize threat
determinations based on implementation experience and/or may choose to codify the cc"ained-in
policy for contaminated soil in a manner similar to that used to codify the contained-in ".icy for
contaminated debris. If the Agency does, in the future, take action to codify the connmed-in
policy, it will respond to these comments, as necessary, at that time.

In the meantime. EPA regions and authorized states may continue to implement the corinned-in
policv on a site-specific basis. Current EPA guidance on implementation of the ccntamtc-m
policy as well as the relationship of contained-in determinations to LDR treatment coiieuicns are
discussed, in detail, in the preamble to today's final rule.

Many of the commenters in this section, to one degree or another, address the relations.:;::
between contained-in determinations, minimize threat determination and LDR treaimen:
requirements. Although EPA is not, at this time, taking action to codify the contained-:- ooiicy as
discussed above, the Agency notes that the relationship between contained-in determm£:;ons.
minimize threat levels, and LDR treatment requirements in discussed in detail in the preimbie to
today's final rule.

5.F SOIL TREATMENT DATABASE

5.F.I National Capacity Variance

• "A. National Capacity Variances for Hazardous Soils

Although not explicitly addressed in the notice extending the Phase II rulemakiru
comment period, API presumes that the proposed national capacity variances fc~
hazardous soils contaminated with Phase I and Phase II wastes remain a pan of :he Phase
II proposal. Since these proposed variances are for hazardous soils. API v.iil aciress the
need for them and submit supporting data as appropriate, and if it is available in comments
to the Agency on March 15, 1994." (American Petroleum Institute, CS2P-000-: i

Response: This issue is moot. Phase II capacity period is long over.

5.F.2 Bench, Pilot, and Full Scale Studies

• "HWAC has concerns about the levels which EPA proposes to use to categoric bench.
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pilot and full scale data. Under EPA's approach, if less than one kilogram ("'kg") were
treated in any prescribed test, the treatment test would be categorized as bench scale.
If. however, more than 1 kg but less than 1000 kg were treated, the test would be
categorized as pilot-scale, and treatment tests involving more than 1000 kg would be
categorized as full-scale tests. 58 Fed. Reg. at 48.130. HWAC believes that the
standards should be modified as follows:

Bench Scale 0-10 kg
Pilot Scale 10-10.000 kg
Full Scale 10.000 - above

It is the strong belief of experienced HWAC members that, in order to gather enough
performance data on cleanup technologies, the amounts we have suggested should be
adopted. Without expanding EPA's proposed scales, insufficient testing can lead to
implementation of uncertain technologies ultimately driving up costs associated with
technology implementation." (HWAC. CS2P-00020)

Response: The commenter is concerned with the proposed mass thresholds that define each treatability
study as bench-, pilot-, or full-scale. The commenter urges EPA to only consider larger mass
sample tresholds when setting treatment standards for hazardous soils. The commenter
believes larger mass sample studies \vill reduce the level of uncertainty that it is involved
during the extrapolation of performance data from pilot- and bench-scale processes to the
design and operation of full-scale processes. EPA concurs with the commenter that it is
desirable to have larger sample sizes, generally, when conducting feasibility studies. Also.
EPA points out that there are full-scale data for biotreatment processes (five studies).
chemical dechlorination (one study), stabilization (three studies'), steam stripping (four
studies), and thermal desorption (six studies) in the soil data base. (See Appendix D in
EPA 1998a.) The bench-and pilot- scale data for these full-scale processes in the soil
data base further corroborate the feasibility of achieving the treatment
standards. However. EPA has found that
regardless of the sample size being examined, the extrapolation of bench-/pilot-scale data to
the scaling of full-scale operations is often an empirical and site specific process that require
the exercise of good engineering judgement and the conduction of trial and error
operations. Other consulted treatability studies (EPA 1998a. EPA 1988d. EPA1994) show
that full-scale ex-situ processes;30 such as those on which the treatment standards being
promulgated today are based, can be engineered and optimized to meet a pre-determined
regime of treatment objectives. (EPA1998d. EPA 1998a.) EPA has also found
that the treatment performance ranges attained during the treatability studies in the soil data
base are congruent with those reported in other consulted literature including
literature that describes full-scale operations. (See Chapter 3 in EPA 1998a. cited
references in EPA 1998d. and ex-situ treatment studies in 1995 and 1997 Superfund
!0Nameiv. technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil u ashing.

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treatability studies.3: and other literature cited below i Based on these findings. EPA is not
persuaded by the commenter's recommendation.

In this ruiemaking, given the variability of hazardous soils (in terms of soil textures.
concentrations and numbers of hazardous constituents and soil matrices), plus the special
considerations of facilitating treatment during remediations, the Agency is
adopting treatment standards from the zone of reasonable values which could be
permissibly selected based upon the performance data. Thus, the data are not being used
so much to establish a precise performance level as to confirm the typical
achievability of the promulgated standards, i.e., ten times UTS or 90% reduction. It is
therefore reasonable and appropriate to regard bench and pilot scale treatment test data as
indicative of what levels of treatment that technology, when operated at full scale, would
yield. This is part of EPA's BOAT approach that has historically been used in setting
other LDR treatment standards (See EPA 1993c (arsenic treatment standard is based on
the pilot scale vitrification of mineral processing wastes) and EPA 1993d (various
treatment standards for organics/metals in wastewater forms of hazardous wastes).)
References:
EPA 1998a. Soil Data Analysis: Soil Treatability Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Denvation of Treatment Achievabilitv Results for Organic Functional
Groups and T\pes of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c. memorandum titled:" Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1998d. Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." Apnl 1998. from Jose"
E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
These data consist of many lull -scale treatment studies conducted at Supertund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (11 Remediation Case Studies: Bioremediation and Vitrification. Julv 1997. EPA 542-R-97-008 or
PB97-177554: (2) Remediation Case Studies: Soil Vanor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-177562; (31 Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: 11) Abstracts of Remediation Case Studies. EPA-542-R-9 5-001, March 1995: (2) Remediation Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-9S-005 or NTIS: PB95-182945. March 1995: (31 Remediation Case
Studies: Soil Vapor Extraction , EPA-542-R-95-004 or NTIS: PB95-182937. March 1995: (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 orNTTS: PB95-182929. March 1995.

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Soils/F-98-2P4F-FFFF.)

EPA 1994. October 1994. Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council.
'EPA542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1993c. April 1993. Final Best Demonstrated Available Technology (BOAT) Background Document for
Universal Standards. Volume A: Universal Standards for Nonwastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1993d. April 1993. Final Best Demonstrated Available Technology (BOAT) Background Document for
Universal Standards. Volume B: Universal Standards for Waste\vater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128, or NTIS: PB 95-963410.
• "Only four full scale bioremediation projects are cited by EPA. RETEC has completed
many more projects than this itself. The number of sites analyzed by EPA is not sufficient
to establish reasonable BOAT standards based on bioremediation.

The scale up from bench and pilot scale equipment is not a trivial issue. RETEC has
developed a number of technologies on the bench that appeared to be very attractive.
However once these technologies went to the field, we quickly found out that the
technology did not work at a larger scale.

Only 15% of EPA's data base uses full scale data for all technologies. In most cases there
is only one demonstration of each technology. This is simply not enough data to make
such critical decisions for such a wide range of chemical compounds." (RETEC, CS2P-
00026)

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processes. (EPA 1993a and EPA 1998a) The soil data base include the performance of
five full-scale biotreatment processes. (See Appendix D in EPA 1998a and treatability
study scale threshold discussions in EPA 1993a.)

In the process of evaluating the treatment performance that non-combustion technologies
can attain when treating hazardous soils, EPA sorted the treated hazardous constituents
into clusters of chemical analytical families (i.e. BDAT list) or functional treatabiiity
groups (Contaminated Soil and Debris Treatability groups) and then, compared the
treatment performance ranges that the tested analytical cluster/treatability functional
groups can attain by specific groups of non-combustion technologies. (EPA 1993a:
EPA1998a: EPA 1998b; EPA1998c; EPA1998d; and EPA 1993a.) Also, EPA
transferred treatment performance data from the tested hazardous constituents to those that
lacked direct treatment data from the non-combustion technologies in the soil data base.

With regard to the treatment performance of biological treatment processes, the soil data
base shows that this technology is among the most soil and constituent specific
treatment technologies available for the treatment of hazardous soils. The technology will
perform best in many compounds that are water soluble, amenable to volatilization, and
amenable to co-metabolizanon. (EPA 1993a. EPA 1998a, EPA 1998c. EPA 1994. and
cited academic literature in EPA 1998d.) For instance, many soluble and slightly soluble
compounds can be treated to the regime of concentrations established today. The soil
data base also shows that Pentachlorophenols. less soluble Polyaromatic hydrocarbons
such as PNA's with four or more rings, aromatic chlorinated pesticides, and aromatic
chlorinated pesticides are resistant or recalcitrant to biodegradation processes. PCPs and
four to five ring PNAs biodegrade at much slower rates or attain an average treatment
performance reduction range from 35 % to 70% which falls short from the 90% treatment
regime established today. These recalcitrant constituents may require additional treatment
by another technology train such as chemical dechiorination (e.g., for non-volatile
chlorinated organic pesticides/solvents and oily chlorinated organics such as PCB's and
PCPs) or solvent extraction (high molecular weight PNA's and chlorinated organics).

EPA's findings with regard to the performance of bioremediation treatment processes
(EPA 1993a. EPA 1998a, EPA I998b, and EPA 1998d) are quite consistent with other
bench-, pilot-, and full-scale operation of bioremediation processes (EPA1998a,
EPA1998d, HWTC 1993, and EPA 1994). EPA has determined, therefore, that the
available biotreatment performance data support the establishment of treatment standards
for many soluble polar organics,volatile aliphatic chlorinated/non-halogenated organics,
non-halogenated aromatic, polar organics such as ketones, alcohols, and low molecular
weight PNA's ( two- to four-rings, generally).

Although EPA prefers, generally, to rely on full scale studies for the purpose of
developing and promulgating treatment standards, and this is true with respect to the soil
treatment standards as well. However, in this case as well as in many prior LDR
treatment standard efforts, EPA's data base includes more than just full scale data upon
which EPA can properly rely. Bench and pilot scale technologies can be appropriately
considered by EPA (and EPA has historically done so) in setting treatment limits as long
as full scale operations of the treatment system under consideration exist or have been
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demonstrated on wastes/soils.

Furthermore, in this rulemaking. given the variability of hazardous soils (in terms of soil
textures, concentrations and numbers of hazardous constituents and soil matrices), plus the
special considerations of facilitating treatment during remediations, the Agency is adopting
treatment standards from the zone of reasonable values which could be permissibly
selected based upon the performance data. Thus, the data are not being used so much to
establish a precise performance level as to confirm the typical achievability of the
promulgated standards, i.e., ten times UTS or 90% reduction. It is therefore reasonable
and appropriate to regard bench and pilot scale treatment test data as indicative of what
levels of treatment that technology, when operated at full scale, would yield. This is part
of EPA's BOAT approach that has historically been used in setting other LDR treatment
standards (See EPA 1993c (arsenic treatment standard is based on the pilot scale
vitrification of mineral processing wastes) and EPA 1993d (various treatment standards
for organics/metals in wastewater forms of hazardous wastes).)
References:

EPA I998a. Soil Data Analysis: Soil Treatabilitv Analysis of Trcatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic Functional
Groups and T\pes of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatability of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d. memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)
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EPA 1993b. March 1993. Technology Selection Ouide for \Vood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1993c. April 1993. Final Best Demonstrated Available Technology' (BOAT) Background Document for
Universal Standards. Volume A: Universal Standards for Nonwastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1993d. April 1993. Final Best Demonstrated Available Technology fBDAT) Background Document for
Universal Standards. Volume B: Universal Standards for Wastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

HWTC 1993. November 1993. Evaluation of Proposed BOAT Soil and Process Treatment Technologies --
Report to the Hazardous Waste Treatment Council. ENSR Consulting and Engineering, Document Number
3393-002.. submitted to EPA by the Hazardous Waste Treatment Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).
• "Soil Treatment Database (page 48128): GM recommends the alternative of using the intent of
the test to define the scale of the test. As discussed in the preamble, bench-scale tests are designed
to determine whether alternative technologies can achieve established performance criteria: pilot-
scale studies are designed to provide detailed cost, design, and performance data; and full-scale
operations are designed to achieve remediation of the site." (General Motors, CS2P-00095)

Response: In finalizing the proposed treatment standards for hazardous soils, EPA has decided to
retain the proposed mass-based thresholds that define what scale designation shall be given
to each treatability study. EPA notes that no matter what is the purpose or scale of a
treatability study, a well-designed and well-operated treatment process can yield valuable
information regarding the capabilities of a given treatment processes.

As a result, the hazardous soil treatment standards promulgated today are based on the
pooled performance of various non-combustion treatment technologies on hazardous soils.
(EPA 1993aandEPA 1998a)

References:

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase II.
Document Number CS2P-S0599)

EPA 1998a. April 1998. Soil Data Analysis: Soil Treatability Analysis of Treatability Data for
Contaminated Soil Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF )
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• "The proposed treatment methodologies for soils containing hazardous wastes are based
on results obtained from a limited number of laboratory bench scale tests. Developing
a national program for treating soils containing hazardous wastes is unwise with such a
limited number of data sets from bench scale experiments. EPA should conduct a
detailed interim testing program to determine if the bench scale methodologies can
achieve the same results in a full scale project before placing the proposed rule into
effect. Once a treatment methodology has proven to be effective in a full scale
operation then the treatment methodology should be incorporated into these proposed
rules. If it is determined that a treatment methodology is not effective for soils then the
methodology should be removed from consideration. In other words. EPA's use of
data on innovative technologies may not be appropriate for determining the appropriate
treatment standards for soil." (Boeing, CS2P-00029)

Response: EPA disagrees with the commenter that non-combustion (i.e., "innovative")
technologies considered by EPA cannot support the establishment of treatment
standards. Nor is EPA persuaded by the porposed approach that an interim
teasing program shall be established until more full-scale operations are in
place. (EPA1998a, EPA 1998d, EPA 1995, and EPA 1994.) Corroborative
data also demonstrate that full-scale operation of soil washing and vitrification
processes can meet the treatment standards for hazardous soils. (EPA 1995a
(soil washing), EPA 1995b (soil washing), and EPA 1997b (vitrification).
References:

EPA 1998d. memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket for Phase
FV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1997b. July 1997. Remediation Case Studies: Bioremediation and Vitrification. Volume 5. Federal
Remediation Technologies Round Table. EPA. (EPA 542-R-97008 or NTIS: PB97-177554)

EPA 1995a. July 1995. Contaminants and Remedial Options at Selected Metal-Contaminated Sites. Office
of Research and Development. Washington. D. C. (EPA/540/R-95/512 or NTIS: PB95-271961)

EPA 1995 b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In Situ
Vitrification. Federal Remediation Technologies Round Table. EPA. (EPA 542-R-95-005 or NTIS: PB95-
182945)
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EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition. Department of Defense/EPA Environmental Technology Council. (EPA 542/B-
•••1/013 or NTIS: PB 95-104 182)

• "Proposed Approaches for Establishing Treatment Standards for Hazardous Soils (58
FR48125)

The three approaches for treatment of hazardous soils are based on data predominantly
from bench and pilot tests. Over 50 percent of the data are from bench tests. 58 FR
48126. AWPI is aware of instances where bench tests using a certain technology were
successful in meeting the Alternative 2 standards yet actual field application did not
meet the UTSs. The Institute hopes that EPA understands all of the potential
ramifications of basing suggested treatment approaches on predominantly bench and
pilot test results. The fact is that bench and pilot tests will often not reflect reality in
field applications due to a number of variables encountered in the field.

If the Agency truly wishes to foster alternative innovative technologies. AWPA
recommends that EPA raise the incineration-based UTS levels, which were based on
bench tests and pilot tests, to level achievable by other methods such as biological
treatment. Should EPA decide not to raise these UTS levels, then the Agency should
make provision in the final rule that treatment approaches selected from bench and pilot
tests are deemed adequate when applied in the field. Otherwise, the regulated
community will be subjected to costly treatment trains which can only stifle alternative
innovative technology development." (American Wood Preservers Institute, CS2P-
00047) [Also see Chapter 27.A.]

Response: The hazardous soil treatment standards promulgated today are based on the
pooled performance of various non-combustion treatment technologies on
hazardous soils which include the performance of several bench-, pilot-, and
full-scale biological treatment processes. (EPA 1993a and EPA 1998a) In the
process of evaluating the treatment performance that non-combustion
technologies can attain when treating hazardous soils, EPA sorted the treated
hazardous constituents into clusters of chemical analytical families (i.e. BDAT
list) or functional treatability groups (Contaminated Soil and Debris Treatability
groups) and then, compared the treatment performance ranges that the tested
analytical cluster/treatability functional groups can attain by specific groups of
non-combustion technologies. (EPA 1993a. EPA1998a, EPA 1998b,
EPA1998c, and EPA1998d.) Also. EPA transfered treatment performance data
from the tested hazardous constituents to those that lacked direct treatment data
from the non-combustion technologies in the soil data base.

With regard to the treatment performance of biological treatment processes, the
soil data base shows that this technology is among the most soil and constituent

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specific ::eatment technologies available for the treatment of hazardous soils.
The technology will perform best in many compounds that are water soluble.
amenable to volatilization, and amenable to cometabolization. (EPA 1993a.
EPA 19-Sa. EPA 1998c. EPA 1994. and cited academic literature in EPA
1998d. i For instance, many soluble and slightly soluble compounds can be
treated tc the regime of concentrations established today. The soil data base
also shoe's that Pentachlorophenols, less soluble polyaromatic hydrocarbons
such as PXA's with four or more rings, aromatic chlorinated pesticides, and
aromatic chlorinated pesticides are resistant or recalcitrant to biodegradation
processes. PCPs and four to five ring PNAs biodegrade at much slower rates or
attain an average treatment performance reduction range from 35 % to 70 %
which falls short from the 90% treatment regime established today. These
recalcitrant constituents may require additional treatment by another technology
train sue" as chemical dechlorination (e.g., for non-volatile chlorinated organic
pesticides solvents and oily chlorinated organics such as PCB's and PCPs) or
solvent extraction (high molecular weight PNA's and chlorinated organics).

EPA's findings with regard to the performance of bioremediation treatment
processes (EPA 1993a, EPA 1998a, EPA 1998b, and EPA 1998d) are quite
consistent with other bench-, pilot-, and full-scale operation of bioremediation
processes (EPA1998a, EPA 1998d, HWTC 1993, and EPA 1994). In fact, the
technical background documents indicate that hazardous soils contaminated with
high concentrations of wood preserving hazardous constituents, such as PCB
and PNAi. were successfully treated by these technologies (and by thermal
desorpticn) to achieve the treatment standards in the final rule using non-
combustion technologies. EPA has determined, therefore, that the available
biotreatment performance data support the establishment of treatment standards
for man\ soluble polar organics.volatile aliphatic chlorinated/non-halogenated
organics. non-halogenated aromatic, polar organics such as ketones. alcohols.
and low molecular weight PNA's (two- to four-rings, generally).

Although EPA prefers, generally, to rely on full scale studies for the purpose of
developing and promulgating treatment standards, and this is true with respect
to the soil treatment standards as well. However, in this case as well as in
many prior LDR treatment standard efforts, EPA's data base includes more than
just full scale data upon which EPA can properly rely. Bench and pilot scale
technologies can be appropriately considered by EPA (and EPA has historically
done so i in setting treatment limits as long as full scale operations of the
treatment system under consideration exist or have been demonstrated on
wastes/soils.

Furthermore, in this rulemaking, given the variability of hazardous soils (in
terms of soil textures, concentrations and numbers of hazardous constituents and

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soil matrices), plus the special considerations of facilitating treatment during
remediations. the Agency is adopting treatment standards from the zone of
reasonable values which could be permissibly selected based upon the
performance data. Thus, the data are not being used so much to establish a
precise performance level as to confirm the typical achievability of the
promulgated standards, i.e., ten times UTS or 90% reduction. This is pan of
EPA's BDAT approach that has historically been used in setting other LDR
treatment standards (See EPA 1993c (arsenic treatment standard is based on the
pilot scale vitrification of mineral processing wastes) and EPA 1993d (various
treatment standards for organics/metals in wastewater forms of hazardous
wastes).)

Presumably, the commenter also asked EPA to finalize some provisions in the 40
CFR 268.44 (h) that would allow the use of treatment performance from bench-
and pilot-scale studies as documents that can satisfy the requirements for a
treatability variance from the treatment standards established in the 40 CFR
268.49. EPA believes that such regulatory provisions are not necessary This is
because existing authorities under RCRA Corrective Action and CERCLA Clean
up programs allow for such course of actions. In fact. RCRA and CERCLA
feasability studies have been used to pre-approve treatment variances for
hazardous debris. However, the acceptance or rejection of such treatability
studies is normally the prerogative of the regulatory agency official overseeing the
implementation of LDRs (or ARARs) that apply to the treatment and disposal of
hazardous soils. This is an expected result since Regional/authorized State
officials are more familiar with the complexities of the remediation site and they
can exercise a better judgement on the quality of bench- and pilot-scale treatability
studies.
References:
EPA 1998a, Soil Data Analysis: Soil Treatability Analysis of Treatability Data for Contaminated
Soil Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for
Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled:"Derivation of Treatment Achievability Results for Organic
Functional Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled: "Additional Information on Treatability of Contaminated Soils
as Discussed in Section VII.B. 8 of Phase tV Final Rule Preamble." April 1998, from Jose E.
Labiosa and Rita Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

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EPA 1998d. Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998. from Jose E. Labiosa of EPA Office of Solid'Waste. .Arlington, Virginia. (RCRA
Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition, Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1997a. October 1997, Treatment Technology Performance and Cost Data for Remediation
of Wood Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/ 625/R-97/009)

EPA 1993b. March 1993, Technology Selection Guide for Wood Treater Sites. OSWER
Directive 9360.0-46FS or EPA 540-F-93-020, Office of Solid Waste and Emergency Response.
Washington, D.C.

EPA 1993c, April 1993. Final Best Demonstrated Available Technology (BOAT) Background
Document for Universal Standards. Volume A: Universal Standards for Nonwastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste, Washington, D.C. 20460

EPA 1993d, April 1993. Final Best Demonstrated Available Technology (BDAT) Background
Document for Universal Standards. Volume B: Universal Standards for Wastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1995a, November 1995, Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162, EPA 540/R-95/128, or NTIS: PB 95-963410.

HWTC 1993, November 1993, Evaluation of Proposed BOAT Soil and Process Treatment
Technologies -- Report to the Hazardous Waste Treatment Council. ENSR Consulting and
Engineering, Document Number 3393-002., submitted to EPA by the Hazardous Waste
Treatment Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).
"n. Treatability Data

The data provided on this issue by the Project membership confirm that performance
obtained in bench scale testing is seldom achieved in full scale field operations. For
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example, one member reports that the shortfall is frequently such that actual reductions
are in the 60%-70% range, notwithstanding much more optimistic projections from the
laboratory scale work. Another member reports significant variation even in bench
scale results, with removals varying from as little as 7% to as much as essentially
100%. One member reports bench scale results for a bioremediation process that show
chlorinated PAH reductions from 9% to 90+ % over an initial concentration range of
approximately 3. 000 mg/kg to 7. 000 mg/kg. Conversely, a bench scale soil solvent
washing process yielded better than 99 % removal of aromatic VOCs over an initial
concentration range from approximately 50 to 2, 000 mg/kg.

It is clear from the information provided by the RCAP member companies that most of
the data reported in the literature regarding performance of treatment technologies is
vendor-generated bench-scale data which is not likely to be representative of actual
field applications for several reasons: 1) vendor data often represents the best results
for individual constituents from numerous tests, rather than from contemporaneous
performance on all constituents in the matrix; 2) bench scale tests often employ
equipment very unlike that which would be used in full scale applications: and 3) there
is an inevitable degradation in performance when moving from carefully controlled lab
tests on small matrix samples to less controllable full scale field applications addressing
the heterogenous materials typically managed in remediation project." (RCRA
Corrective Action Project. CS2P-00164.C)

Response: EPA concurs with the commenter that it is desirable to have larger sample sizes.
generally, when conducting feasibility studies. Also, EPA points out that there are
full-scale data for biotreatmem processes (five studies), chemical dechlorination
(one study).stabilization (three studies), steam stripping (four studies), and
thermal desorption (six studies) in the soil data base. (See Appendix D in EPA
1998a.) The bench- and pilot-scale data for these full-scale processes in the soil
data base further corroborate the achievability of treatment standards. However.
EPA has found that regardless of the sample size being examined, the
extrapolation of bench- /pilot-scale data to the scaling of full-scale operations is
often an empirical and site specific process that require the exercise of good
engineering judgement and the conduction of trial and error operations. Other
consulted treatability studies (EPA 1998a, EPA 1988d, EPA 1994) show that full-
scale ex-situ processes;32 such as those supporting the treatment standards being
promulgated today, can be engineered and optimized to meet a pre-determined
regime of treatment objectives. ^EPA1998d, EPA 1998a.) EPA has also found that
the treatment performance ranges attained by the treatability studies in the soil data
base meet are congruent with those reported in other consulted literature including
literature that describe full-scale operations. (See Chapter 3 in EPA1998a, cited
'"Namely, technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

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references in EPA 1998d. and ex-situ treatment studies in 1995 and 1997
Superfund treatability studies/0 and other literature cited below. ) Further, the soil
data base describe the treatment of difficult-to-treat soil textures and difficult-to
treat admixtures of hazardous constituents/multiple-contaminants (see Appendix
D in EPA 1998a and EPA 1998d). In all cases, at least some of the data shows
that the soil standards have been achieved on difficult-to-treat matrices or soils
contaminated with hard-to-treat constituents using full scale treatment. Based on
these findings, EPA is proceeding with the proposed treatment standards for
hazardous soils.

In evaluating what paired data points were suitable as a basis for the Phase IV
hazardous soil treatment standards. EPA did examine for possible bias in the
consulted studies and rejected data points that resulted from operational practices
that result from atypically designed and operated full-scale operations. For
example, the Data Summary Form (DSF) Number 76 A, biotreatment. was
rejected because the treatment batch test involved a bed that was tilled daily and
continuously aerated. Clearly. DSF Number 76 A is an atypical practice of full-
scale biotreatment process operation. A full scale operation may involve, instead.
the aeration of soils twice a week. See Chapter 5 of the BOAT Background
Document for Hazardous Soil, August 1993, for a discussion of the criteria EPA
adopted for the review and evaluation of the available data in this docket. .Also.
see EPA's findings on these data review and evaluation can be found in
administrative record. For example, see EPA 1993 a.

Other consulted treatability studies/literature (EPA 1998a, EPA 1988d, EPA
1994) show that ex-situ processes34; such as those supporting the treatment
standards being promulgated today, can be engineered and optimized to meet a
pre-determined regime of treatment objectives. (EPA1998d, EPA 1998a) Based
on these findings. EPA is not persuaded by the commenter's recommendation that
the proposed mass based thresholds be adopted.
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants pnor to
disposal. See 1997 studies: I'll Remediation Case Studies: Bioremediation and Vitrification. Julv 1997. EPA 542-R-97-008 or
PB97-177554: (21 Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997, EPA 542-R-97-009
or NTIS PB97-177562: G) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995: (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995: (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-18291 I.March 1995: and (5t Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

34Namely. technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal de.sorption.
chemical/solvent extraction, and soil washing.

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In this rulemaking. given the variability of hazardous soiis (in terms of soil
textures, concentrations and numbers of hazardous constituents and soil
matrices), plus the special considerations of facilitating treatment during
remediations. the Agency is adopting treatment standards from the zone of
reasonable values which could be permissibly selected based upon the
performance data. Thus, the data are not being used so much to establish a
precise performance level as to confirm the typical achievability of the
promulgated standards, i.e., ten times UTS or 90% reduction.
References:
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled:"Derivation of Treatment Achievability Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow of EPA Office of
Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum tided:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble," April 1998, from Jose E. Labiosa and
Rita Chow of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

.EPA 1998d. Memorandum tided: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council,
.EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase O, Document Number CS2P-S0599)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development, Washington, D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.
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• 'The Agency discusses how scale (i.e., bench-, pilot-, or full-scale) was entered into EPA's
database, and indicates that when scale was not indicated (with the data and accompanying
documents), it was then entered depending on the amount of waste being treated. Of less
than 1000 kg was treated, the test was categorized as bench-scale. If more than 1 kg, but
less than 1000 kg was treated, the test was categorized as pilot-scale. Cases where treatment
involved more than 1000 kg were categorized as full-scale. Alternative methods for defining
the scale of the treatment test will also be considered. EPA requests comment on an
alternate definition of scale based on the "intent of the test."

DOE considers the "intent-based" criterion to be more suitable and appropriate than quantity-based
criterion for defining the scale of treatment tests. The intent-based method would better
accommodate the fact that bench-scale tests are part of the RI/FS process and are intended to
evaluate various technologies. The objectives of pilot-scale tests are to provide reliable
information about design, scale-up and costs. Even though full-scale (field-scale) application of
selected remedial technologies are not considered to be studies, the data derived from these
operations provide useful information about site-based costs. For example, soil washing
treatability tests are being conducted on Hanford site trench soils contaminated with reactor
cooling water containing various radionuclides. The intention of these tests is to generate data
normally generated through bench-scale tests. However, some of the soils in the trench are very
coarse in texture, and contain gravel and cobble size material. Therefore, for certain tests.
researchers had to use more than 1 kg quantities to obtain representative samples. According to
the EPA quantity-based criterion, these tests would inappropriately be considered pilot-scale. An
intent-based approach would readily and correctly recognize them as bench-scale." (DOE, CS2P-
00161)

Response: EPA acknowledges that a quantity or intent based approach to define the scale of a
treatability study is often a subjective judgement. For the purpose of this rule. EPA is
retaining, however, the proposed mass quantification approach that designates soil
treatability studies as bench-, pilot-, and full-scale.

• GREEN TAB (RETEC. CS2P-00026.B)

• GREEN TAB (NY State Dept. of Environment, CS2P-00133.C)

5.F.3 General Concerns About the Data Base

• "RETEC has serious concerns over the data base employed by EPA to formulate the proposed
Universal Standards and the order of magnitude "ceiling" for hazardous soils. Key conclusions of
our analysis are as follows:

a. Treatment levels are based on very little full scale data.

b. It does not appear that bioremediation was considered an appropriate technology for any
herbicides and pesticides. The standards established can only be achieved by incineration.

c. RETEC's full and pilot scale bioremediation data base indicates that the universal

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standards and resulting ceilings are established far too low. In essence the proposal will
limit the use of bioremediation to treat hazardous soils." (RETEC, CS2P-00026)

Response: RETEC is concerned that the treatment standards established today may not be achievable
by bioremediation technologies and urged EPA to set treatment standards that can be
achieved by biotreaunent processes.

RETEC feels one or more of the following items are flaws in EPA soil treatment data:

(1) Treatment levels are based on very little full scale data.

(2) It does not appear that bioremediation was considered an appropriate
technology for any herbicides and pesticides. The standards established can only
be achieved by incineration.

(3) RETEC's full and pilot scale bioremediation data base indicates that the
universal standards and resulting ceilings are established far too low. In essence trie
proposal will limit the use of bioremediation to treat hazardous soils." (RETEC. CS2P-
00026)

Below are EPA responses to these concerns:

(1) What is the basis of the hazardous soil treatment standards?

The hazardous soil treatment standards promulgated today are based on the pooled
performance of various non-combustion treatment technologies on hazardous soils which
include the performance of several bench-, pilot-, and full-scale biological treatment
processes. (EPA 1993aandEPA 1998a) In the process of evaluating the
treatment performance that non-combustion technologies can attain when treating
hazardous soils. EPA sorted the treated hazardous constituents into clusters of chemical
analytical families (i.e. BOAT list) or functional treatability groups (Contaminated Soil and
Debns Treatability groups) and then, compared the treatment performance ranges that the
tested analytical cluster/treatability functional groups can attain by specific groups
of non-combustion technologies. (EPA 1993 a. EPA1998a. EPA 1998b.
EPA1998c. and EPA1998d.) Also. EPA transfered treatment performance data from the
tested hazardous constituents to those that lacked direct treatment data from the non-
combustion technologies in the soil data base where structure-activity relationships among
hazardous constituents justified the transfer. .

None of the available data in the soil data base support a determination that biotreatment is
an effective technology in treating chlorinated herbicides and pesticides. The soil data base
show, however, that thermal desorption and chemical dehalogenation are effective in treating
soils contaminated with chlorinated pesticides and herbicides. (See Appendix D of EPA
I998a.) Based on the treatment of PCBs by chemical/solvent extraction. EPA also believes
that chlorinated pesticides and herbicides can be treated by chemical/solvent extraction. The
commenter's apparent premise that to be valid, a standard must be achievable by
bioremediation is simply not correct. There is no reason to base standards for certain
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constituents on performance of a treatment technology known to be inferior for treating
those constituents. Quite simply, other appropriate (i.e.. non-combustion) technologies
exist \vhich treat these constituents much more effectively.

(2) Was bioremediation considered an appropriate technology for herbicides and
pesticides? Can the established treatment standards (presumably for herbicides!
only be achieved by incineration?

EPA has limited data on the treatment of chlorinated pesticides via biotreatment. Two
data sets on the biotreatment of chlorinated pesticides via biological are available. (See
EPA 1998a, Appendix D. pages Biological Treatment number 2 and 6.)

One data set describes the bench scale treatment of p,p' DDT (three paired data points
with maximum untreated concentration of 1.400 mg/kg) and toxaphene (three paired data
points with a maximum concentration of 180 mg/kg) via aerobic composting. The
treatment performance reduction of p,p" DDT varied from 14% to 21% and toxaphene
varied from 39% to 87%. None of these six data points meet the treatment standards. It
appears that these two hazardous constituents are resistant to the biotreatment
processes applied in this study. It is likely that the concentrations of p,p'DDT inhibit the
treatment performance of this treatment system. Pretreatment of p.p' DDT via some
other co-metabolite should be investigated to assess the feasibility of reducing the high
concentrations of p,p'DDT prior to treating toxaphene via composting.
Alternatively, the soil contaminated with these two constituents may be treated by
dechlodnation or high temperature thermal desorption.

The second data set describes the bench-scale treatment of toxaphene via a bioslurry
system. The untreated concentration of toxaphene varied from 265 mg/kg to 819 mg/kg.
The bioslurry attained a treatment reduction range that varied as shown below:

Untreated Treated % Reduction
Concentration Concentrattion
(mg/kg) (mg/kg)
264 6 97.7
359 19 94
819 267 67
It appears that the consortia of microorganisms of this bench-scale study were sensitive to
a threshold concentration of toxaphene. As the data show, at concentrations of 359 and
264 mg/kg, treatment efficiencies are within the 90% reduction range established today.
In contrast, at a concentration of 819 mg/kg the bioslurry efficiency drops significantly to
from 90% regime to a low reduction level of 67%. These soils may require
microorganisms that have been acclimated to these high level concentrations or the use of
an alternative treatment technology such as a dechlorination or high temperature thermal
desorption process.

Based on the available bioremediation data, it appears that bioremediation process may
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attain an inferior performance efficiency compared to other non-combustion technologies
demonstrated on hazardous constituents as difficult to treat as chlorinated
pesricides. (See EPA 1998a. EPA 1998c. and EPA 1998d.)

The treatment standards for chlorinated herbicides and pesticides are based on the
chemical dehalogenation of PCBs. chlorinated organics. chlorinated pesticides (e.g. DDT.
ODD. & DDE) and herbicides (e.g. 2.4,5-trichlorophenoxy acetic acid) and the thermal
desorption of chlorinated herbicied/pesticides. Based on the solvent extraction of PCBs.
EPA believes that solvent extraction can be used to treat chlorinated pesticides and
herbicides.

. 3) Are the hazardous soil treatment standards too low for bioremediation treatment
processes?

With regard to the treatment performance of biological treatment processes, the soil data
base shows that this technology is among the most soil and constituent specific treatment
technologies available for the treatment of hazardous soils. The technology will perform
best in many compounds that are water soluble, amenable to volatization. and amenable to
co-metabolization. (EPA 1993a. EPA 1998a. EPA 1998c. and cited academic literature in
EPA 1998d.) For instance, many soluble and slightly soluble compounds can be treated to
the regime of concentrations established today. The soil data base also shows that
Pentachiorophenois and less soluble Polyaromatic hydrocarbons such as PNA's with four
or more rings are resistant or recalcitrant to biodegradation porcesses. The data discussed
above also show that treshold concentrations of chlorinated pesticides may inhibit the
bioremediation of chlorinated pesticides. PCPs and four to five ring PNAs biodegrade at
much slower rates or attain an average treatment performance reduction range from 35 %
to 70% which falls short from the 90% treatment regime established today. These
recalcitrant constitunets may require additional treatment by another technology train such
as chemical dechlorina-tion (PCP and chlorinated organics), solvent extraction (PNAs,
PCP, and chlorinated pesticides), and thermal desorption (PNAs. PCP, and chlorinated
pesticides). EPA's findings with regard to the performance of bioremediation treatment
processes (EPA 1993. EPA 1998a, and EPA 1998b) are quite congruent with other bench-
. pilot-, and full-scale operation of bioremediation processes (EPA1998a. EPA 1998d.
HWTC 1993. and EPA 1994).

EPA has determined, therefore, that the biotreatment performance data in the soil
database is viable for rulemaking for a limited set of hazardous contaminants. The
treatment performance of bioremediation processes becomes inferior for insoluble
compounds and heavily chlorinated organics. As a result, the technology may be
inappropriate for some of these recalcitrant constituents.

Although EPA prefers, generally, to rely on full scale studies for the purpose of
developing and promulgating treatment standards, and this is true with respect to the soil
treatment standards as well. However, in this case as well as in many prior LDR
treatment standard efforts, EPA's data base includes more than just full scale data upon
which EPA can properly rely. Bench and pilot scale technologies can be appropriately
considered by EPA (and EPA has historically done so) in setting treatment limits as long
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as full scale operations of the treatment system under consideration exist or have been
demonstrated on wastes/soils.

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievability Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998c. memorandum titled:" Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose" E. Labiosa and
Rita Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council.
(EPA542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993, Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development, Washington. D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.
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• "The soil database includes data for 94 of the 191 constituents subject to the proposed soil
treatment standards. The Agency transferred the UTS to constituents for which the
database does not contain data and justified this action on the grounds that the data
supported the use of the ITS for all organic constituents for which innovative technology
data were available.

"It is not apparent from the information provided in the preamble as to whether the transfer of the
UTS to constituents for which the soil data base contains no data is fullv warranted. The Agencv
•- S r
should provide a more detailed discussion and justification for this action than provided in the
proposed rule." (DOE. CS2P-00161)

Response: EPA has clarified in today's final rule how EPA is extrapolating the available treatment data
to other hazardous soils and hazardous constituents that lack treatment data in the soil
treatment data base. (See Section VTI. B. 8 in the preamble) The commenter is referred to the
following four background documents:

EPA 1998b. memorandum titled:"Derivation of Treatment Achievability Results for
Organic Functional Groups and T\pes of Compounds." April 1998. from Jose" E. Labiosa
and Rita Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatability of
Contaminated Soils as Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble."
April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of Solid Waste.
Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)
EPA 1998d. memorandum titled: "Extrapolation of Treatment Performance Data in the Soil
Data Base Among Hazardous Constituents in Contaminated Soils and Other
Implementation." April 1998. from Jose E. Labiosa of EPA Office of Solid Waste.
Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)
"d. "Risk-based" arbitrariness.

EPA states that its goal is to establish risk-based standards that can satisfy "minimize threat" levels,
and "so cap the extent of hazardous waste treatment." This is a reincarnation of the policy
expressed in last year's discredited and withdrawn HWTR proposal.
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EPA has demonstrated that it knows how to use risk assessment to justify any answer it wants."
This is shown in the recent no-migration petition granted to the Exxon Land Farm facility in
Billings Montana to dispose of hazardous waste (58 Fed. Reg. 40134). In approving this petition.
EPA allows the land disposal of untreated petroleum refining waste, containing percent level
concentrations, with resulting levels of benzene emissions predicted to be as high as 50% of the
health based limit at the property line. This modeling leaves little margin for error. Yet if the
waste were treated using incineration, the level of benzene an individual at the property line would
be exposed to is 1.9 million times lower than the health based level! While EPA forces a
combustion technology to limit air emissions based upon both direct and indirect exposure, in the
Exxon land farm no-migration petition, only lax inhalation risk assessment standards were used to
justify an answer the EPA wanted.

EPA also uses a similar arbitrary rationale to justify the answer it is looking for in the Sept. 14.
1993 proposed LDR rule. The "innovative" technologies are evaluated in the "BOAT Background
Document for Hazardous Soil" dated August 1993 (RCRA Docket # CS2P-S0599). EPA has
widely misused data in this document. Of particular importance, in Table 5.2 of this document,
EPA attempts to justify treatment standards for hazardous contaminated soils at levels above the
UTS. In this table. EPA presents the percentage of data points from various technologies that
comply with three proposed options for establishing treatment standards for hazardous organic
constituents. Data from over 200 treatment operations are included. EPA attempts to hide the
performance of thermal destruction by grouping it under the category "all" in the table reproduced
below, but the HWTC has reconstructed this table from the raw data provided in the docket. The
third column and the last line in the table below were not provided by EPA.

SUMMARY OF THE PERCENTAGES OF DATA PAIRS FOR ORGANIC CONSTITUENTS
IN THE SOIL DATABASE THAT MEET THE PROPOSED BOAT FOR HAZARDOUS SOIL

SOIL BOAT ALL INNOVATIVE THERMAL
STANDARD TECHNOLOGIES TECHNOLOGIES DESTRUCTION
70%
UTS 74% 65% 91%
10 x UTS-90% 93% 69% 95%
Treatment 81 %
10 X UTS 91% 100%
90% Treatment 77% 98%
% OF DATA 60% <5%
BASED ON
BENCH SCALE
TESTS

It is clear from the above that thermal destruction technologies perform far superior to the
"innovative'' technologies evaluated by EPA with regard to residual concentrations of hazardous
35 vVe reference our comments on the Agency's withdrawn HWIR proposal from 1992. 57 Federal
Register 214501 May 20. 1992). These comments discuss, among other things, the numerous instances where EPA
proposed risk-based approaches that were later withdrawn due to the excessively high exposures that would have been
allowed.

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constituents. Yet EPA is attempting to raise BOAT treatment standards to levels that would allow
more technologies to pass. In fact. Table 5-3 in the Soil BOAT Background Document
demonstrates that Thermal Destruction Technologies consistently have a treatment efficiency for
organic constituents in the range of 95% to 100%. In contrast, the pooled data for innovative
technologies have a very inconsistent and poor performance for treatment efficiency for hazardous
constituents in the range of 17^ to 99.9%.

Response: The commenter is correct that incineration is a more aggressive soil treatment technology
than non-combustion technologies. This does not mean it is appropriate to base treatment
standards for soils on incineration. The Agency reiterates that, in the remediation context, in
assessing whether threats posed by land disposal have been minimized, one should
appropriately consider the risks posed by leaving previously land disposed waste in place
as well as the risks posed by land disposal of waste after it is removed and treated. 62 FR
64506 (December 5. 1997V For example, if a treatment standard for organic constituents
based on performance of incineration typically results in already land disposed materials
such as contaminated soils being capped in place rather than more aggressively remediated.
threats posed by land disposal of the waste ordinarily would not be minimized. Conversely.
a treatment standard that results in substantial treatment (followed by secure land disposal)
can be said to minimize threats, taking into account the totality of threats posed (i.e.
including those posed if the soil were left in place untreated). Id, The soil treatment
standards will ordinarily ensure that contaminated soil is appropriately treated to satisfy the
requirements of RCRA Section 3004(m). considering both the threats posed by new land
disposal of treated soil and the threats posed by on-going land disposal of existing
contaminated soil (e.g.. if the soil were left in place untreated).

For soil contaminated with organic constituents. EPA has noted many times that.
notwithstanding the fact that such soils can be burned, it is generally unsuitable or
impractical from a technical standpoint to bum large volumes of mildly contaminated soil.
See. For example. 55 FR at 8760 and 8761 (March 8. 1990) and 61 FR 18806-18808 (April
29. 1996). In addition, the Agency has documented potential difficulties that may arise from
the combustion of soil due to soil/contaminant characteristics that affect incineration
performance such as the concentrations of volatile metals, the presence of alkali salts, fine
panicles of soils such as clays and silts, and the ash fusion point of the contaminating waste.
For example, operation of an incinerator at or near the waste ash fusion temperature can
cause melting and agglomeration of inorganic salts: the loading of clays and silts in some
soils may also result in high loadings of particulate matter in flue gases. See Proposed
BDAT Background Document for Hazardous Soils. August 1993 and Technology
Screening Guide for Treatment ofCERCLA Soils and Sludges. EPA 540/2-88/004.
September 1988.

Thus, EPA agrees with the commenter that combustion, generally, appears to achieve
a superior performance than other non-combustion technologies in the data base. EPA
disagree with the commenter that the proposed treatment standards should be
withdrawn. In this rulemaking, given the variability of hazardous soils (in terms of soil
textures, concentrations and numbers of hazardous constituents and soil matrices), plus the
special considerations of facilitating treatment during remediations. the Agency is adopting
treatment standards from the zone of reasonable values which could be permissibly
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selected based upon the performance data. Thus, the data are not being used so much to
establish a precise performance level as to confirm the typical achievability of the
promulgated standards, i.e., ten times UTS or 90% reduction.
• e. Lowest common denominator.

EPA is taking a "lowest common denominator" approach to BOAT treatment standards. When it
comes to hazardous waste treatment, EPA has declared that a "D" grade is good enough, and is
proposing to "curve the test" to allow even marginal treatment to pass. This is to the detriment of
the environment, and only serves the needs of political expediency in reaching the arbitrary goals
of the combustion strategy-phasing out thermal destruction. This is despite the fact that the data
demonstrates that thermal destruction technologies provide the greatest degree of treatment and are
the most environmentally protective. These points are valid for both process wastes and remedial
wastes.

Response: The Agency reiterates that, in the remediation context, in assessing whether threats posed by
land disposal have been minimized, one should appropriately consider the risks posed by
leaving previously land disposed waste in place as well as the risks posed by land disposal
of waste after it is removed and treated. 62 FR 64506 (December 5. 1997). For example.
if a treatment standard for organic constituents based on performance of incineration
typically results in already land disposed materials such as contaminated soils being capped
in place rather than more aggressively remediated, threats posed by land disposal of the
waste ordinarily would not be minimized. Conversely, a treatment standard that results in
substantial treatment followed by secure land disposal can be said to minimize threats.
taking into account the totality of threats posed (i.e. including those posed if the soil were
left in place untreated). Id The soil treatment standards will ordinarily ensure that
contaminated soil is appropriately treated to satisfy RCRA Section 3004(m). considering
both the threats posed by new land disposal of treated soil and the threats posed by on-going
land disposal of existing contaminated soil (e.g.. if the soil were left in place untreated).

For soil contaminated with organic constituents. EPA has noted many times that.
notwithstanding the fact that such soils can be burned, it is generally unsuitable or
impractical from a technical standpoint to burn large volumes of mildly contaminated soil.
See, For example. 55 FR at 8760 and 8761 (March 8. 1990) and 61 FR 18806-18808 (April
29, 1996). In addition, the Agency has documented potential difficulties that may anse from
the combustion of soil due to soil/contaminant characteristics that affect incineration
performance such as the concentrations of volatile metals, the presence of alkali salts, fine
particles of soils such as clays and silts, and the ash fusion point of the contaminating waste.
For example, operation of an incinerator at or near the waste ash fusion temperature can
cause melting and agglomeration of inorganic salts; the loading of clays and silts in some
soils may also result in high loadings of paniculate matter in flue gases. See EPA 1993a:
EPA 1998a; EPA 1988; EPA 1994'; and HWTC 1993.

Nor is EPA adopting a least common denominator approach. Although EPA agrees with
the commenter that combustion, generally, appears to achieve a superior performance
than other non-combustion technologies in the data base, EPA disagree with the
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commenter that the proposed treatment standards should be withdrawn, in this
rulemaking, given the variability of hazardous soils fin terms of soil textures.
concentrations and numbers of hazardous constituents and soil matrices), plus trie special
considerations of facilitating treatment during remediations. the Agency is adopting
treatment standards from the zone of reasonable values which could be permissibly
selected based upon the performance data. Thus, the data are not being used so much to
establish a precise performance level as to confirm the typical achievabiliry of the
promulgated standards, i.e.. ten times UTS or 90% reduction.
f. Contrary to established BOAT protocols.

This also violates EPA's scientifically established protocols for setting BOAT standards.
Throughout the first, second and third third LDR rules, EPA pooled together treatment data from
different technologies only if they represented part of the same statistical universe, as
demonstrated using an analysis of variance (ANOVA) test to ensure that the analysis was not
biased. Now EPA is abandoning good statistics and science in favor of imposed bias, to raise
treatment standards to an arbitrary level that allows even marginal treatment to pass.

EPA also has a long established policy of only using full scale treatment plant data to make certain
that the technologies on which BOAT is based are available. In contrast. 90% of the "innovative"
technology data evaluated in the soil BOAT document are based on pilot or bench scale treatments,
with less than 10% based on full scale demonstrations. The percentage of time that these
technologies in full scale operation will meet even the BOAT options tabulated above will be far
less, since full-scale performance is generally poorer than bench or pilot scale.

Response: EPA disagrees with the commenter that the treatment standards are not attainable
using non-combustive technologies.

First, the treatment data supporting the proposed rule clearly show and support EPA's
determination that several non-combustion technologies can meet the proposed limits for
organic and metal constituents found in hazardous soils, or 10 \ UTS levels, or the 90%
reduction in the total or ieachable concentration of hazardous constituents present in
hazardous soils. (See preamble in Phase IV final rule: EPA 1998a; EPA 1998 b: EPA
1998c; and EPA 1998d). For instance. EPA collected over 6.000 paired data points
describing the treatment of various hazardous soils. In response to an outgrowth of the
comments. EPA has retained 2.143 paired non-combustion data points to set today's
treatment standards. EPA believes that these 2.143 paired non-combustion data points are
reasonably sufficient to adequately describe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites, including
both Superfund and RCRA sites. (EPA1998a. EPA 1998b. EPA 1998c. EPA 1998d. and
EPA 1994.) For instance, the SDB has treatment data on soils with varying textures
including top soils, silty/loam soils, and clay soils. (EPA 1998a) Furthermore. EPA has a
number of bench and pilot studies on the treatment of contaminated soils from wood
preserving, petroleum refining, and electroplating sites, which contain a wide range of
constituents such as polynuclear aromatic, phenolic, chlorinated organics. spent solvents.
creosote, and metals. (EPA 1998a) These constituents are found at other RCRA and
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Superfund sites. (EPA 1993a)

Third, other pilot- and full-scale data supporting the development of Superfund Presumptive
Remedy guidance documents for wood preserving sites also support EPA's
proposed treatment standards. In particular, thermal desorption was able to attain
concentrations and concentration reduction levels meeting the treatment limits established by
this rule. (EPA 1993b. EPA 1995a. and EPA 1997a.)

This is an expected result since ex-situ soil remediation technologies such as stabilization.
soil washing, dechlonnauon. and chemical extraction are more amenable to optimization.
(EPA 1994) One way to optimize these technologies is to rely on physical and chemical
technologies that enable the chemical/physical treatment of soil properties or the
homogenization of soils. (EPA 1998d. EPA 1994).

In this rulemaking. given the variability of hazardous soils (in terms of soil textures.
concentrations and numbers of hazardous constituents and soil matrices), plus the special
considerations of facilitating treatment during remediations. the Agency is
adopting treatment standards from the zone of reasonable values which could be
permissibly selected based upon the performance data. Thus, the data are not being used so
much to establish a precise performance level as to confirm the typical achievability of the
promulgated standards, i.e.. ten times UTS or 90% reduction.
References:

EPA 1998a. Soil Data Analysis: Soil Treatability Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
These data consist of many full-scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: 111 Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-008 or
PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or N'TIS PB97-177562; (31 Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desormion. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995: (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995; ('41 Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911, March 1995: and (5) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

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IV/Hazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum utlcd:"Dcnvation or' Treatment Achievabilitv Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jos6 E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c. memorandum tided:" Additional Information on Treatability of Contaminated S_oils_as
Discussed in Section VII.B.8 of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1988. September 1988. Technology Screening Guide for Treatment of CERCLA Soils and Sludges.
Office of Solid Waste and Emergency Response. Washington. D. C. EPA 540/2-88/004.

EPA 1995. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Trcater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase II.
Document Number CS2P-S0599)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460. (EPA/ 625/R-97/009)

The constraints and restrictions on innovative technologies are significant. In the preamble to the
LDR rule EPA does admit that incineration "is a matrix-independent technology that reduces the
amount of material ultimately sent to land disposal and it destroys the hazardous constituents." In
contrast "innovative'1 technologies like soil washing, biotreatment, dechlorination and chemical
extraction require a high degree of pre-dilution and addition of pretreatment reagents that increase
the volume of hazardous waste and residuals. Other significant restrictions apply. For example.
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biotreatment is limited to particle size of 0.85 mm. and requires a total solids content under 30%.
Chemical extraction and soil washing are limited to hazardous constituents that are soluble to at
least 5% in the extraction medium, and both are considered separation and not treatment
technologies, since they yield residuals still requiring further treatment. In addition, soil washing
is applicable only to sandy soil, and is not effective on clay soils or soils that contain significant
humic content. Since most soils are heterogenous. soil washing can rarely be used.

Other "innovative" technologies also result in significant air emission problems. EPA states, for
example, in the Soil BOAT Background Document, that for volatile constituents Biotreatment
results in more volatilization of constituents and less real treatment. The aeration requirements for
aerobic biotreatment are difficult to balance against the increased volatilization for volatile
organics. Some thermal desorption technologies also result in elevated emissions, with levels of
CO as high as 1700 ppm. In contrast, an incinerator is limited to 100 ppm CO in order to control
emissions of PICs and dioxins.

More details on this matter are included in the ENSR report at Appendix E. As part of its
comments on the Phase II LDR rule, the HWTC has contracted ENSR, in Acton. Massachusetts.
to conduct a review of the known information on the performance of innovative technologies.
ENSR is a leading firm in providing consulting and engineering design services for innovative
technologies. ENSR has provided assistance in the design of technologies for many Superfund
sites, including soil washing, biotreatment, and solvent extraction.

ENSR Consulting and Engineering is a nationally recognized environmental engineering firm
whose expertise encompasses all aspects of hazardous waste process engineering and waste site
work, form initial investigation through remediation and closure. ENSR has conducted either
investigatory studies or remedial activities on over 4.000 hazardous waste sites, including RI/FS
activities on over 200 CERCLA sites. ENSR's staff of approximately 1,200 technical experts
ranges over 60 technical disciplines, and includes many former EPA Superfund, RCRA and state
superfund managers.

ENSR's RI/FS and Corrective Measures studies have included evaluation and implementation of
technology based clean-ups at a number of uncontrolled waste sites, including use of thermal
desorption system at a PCB contaminated site in Massachusetts and a dechlorination system at a
site in Texas. ENSR's engineers have also been involved in upgrades and tests at various
incinerator facilities throughout the country.

The HWTC strongly supports the use of innovative technologies at remedial sites, and where
applicable for process wastes. Our primary objection to the proposed LDR rule is the suggestion
that BOAT needs to be relaxed in order to encourage the development of innovative technologies.
Such relaxation is not justified, as the more reputable of vendors of innovative technology have
made investments in designing these technologies to meet the same current BOAT standards that
were developed on the basis of combustion technologies. The lowering of standards for innovative
technologies is also a sign that EPA is encouraging the use of marginal treatment technologies,
despite the demonstrated effectiveness of combustion technologies. In the same preamble
discussion in the Phase II LDR rule, in which EPA tries to defend the need to reduce dependency
on incineration, elsewhere EPA states the following to justify its proposed levels for universal
treatment standards:
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:'In summary. EPA believes it is appropriate to develop universal treatment standards on
incineration because it is a matrix-independent technology that reduces the amount of
material ultimately sent to land disposal ana it destroys the organic hazardous
constituents."

58 Fed. Reg. at 48099.

This description of incmerauon sounds like the kind of technology that should be encouraged for
BOAT treatment, since it is available, effective on a wide variety of waste types, and results in the
destruction of hazardous constituents. In contrast. EPA's definition of innovative technologies are
those that "lack the cost and performance data necessary to support their routine use". A treatment
technology is considered innovative, according to EPA. "if it has had oniy limited full-scale
application". From the sounds of these definition, it seems that EPA is promoting less effective
treatment, and is violating the very definition of BOAT.

Best Demonstrated Available Technology means technology that can achieve the best level of
treatment demonstrated by a widely available technology. Innovative technologies must be
required to design their treatment systems to meet the same level of treatment as the best. In
addition, available means full scale operation. Much of the data presented in the innovative
technology background document for soil. Docket #CS2P-S0599, is only bench or pilot scale data.
Within the procedures EPA has adopted and used in all of the previous LDR rules, only full scale
data was allowable. Many of our members were turned away when offering data to EPA for use
in setting BOAT for previous rules because in EPA's view the data was not full scale enough. Yet
for the sake of reducing dependency on a technology that is effective, but not politically
comfortable, EPA is trashing its previous principles and procedures and encouraging the use of
marginal and unavailable treatment technologies. This violates the intent of the LDR regulations.

To demonstrate this point, consider the table below summarizing the treatment technology
availability obtained from the background document.

PERCENTAGE OF AVAILABLE DEMONSTRATION DATA
TECHNOLOGY BENCH SCALE PILOT SCALE FULL-SCALE
Biotreatment 50% 32% 12%
Chemical Ext. 45% 55% 0%
Dechlorination 71% 14% 14%
Soil Washing 80% 13% 7%
Thermal Desorp. 27% 58% 15%
In contrast, all of the BOAT for incineration was based on full scale operations, at commercial
facilities such as Rollins and Ensco. If these technologies do not satisfy the "available" criteria for
BOAT, the EPA is not justified in relaxing BOAT treatment standards on the basis of these
technologies.

In addition, form the data in the attached ENSR Report, in comparison with that presented in the
Soil Background Document (CS2P-S0599X it is clear that EPA has included marginal treatment
data in order to falsely justify raising the treatment standards to as high as 10 times UTS. EPA
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often included data on constituents for which the technology was not optimized. EPA's procedure
in evaluating treatment data was to primarily consider analytical factors in whether or not to
include a given data set for treatment of soil. The data used and grouped together in Tables 5-2
and 5-3 of the soil Background Document included data for constituents from remedial sites which
were not the objective of the technology to treat. Certain technologies like soil washing or thermal
desorption may have been selected to treat certain types of constituents, like volatiles. at a given
site, yet EPA is grouping together data for constituents that the technology was not optimized for.
Yet the technology could have been adjusted to provide better treatment performance for the most
of the semi-volatile constituents. This results in a Table 5-2 which misrepresents the ability of the
alternative technologies to meet existing treatment standards.

EPA also comments how widely applicable thermal destruction technologies are, and rightly states
that thermal destruction is matrix independent. Yet this is not the case for many of the innovative
technologies. The performance of the innovative technologies is highly varied, as shown in
Appendix C to these comments. The table in Appendix C summarizes the performance data from
the Soil Background BOAT Document (CS2P-30599). Several points are evident from this table.
First, thermal destruction technologies had the best performance with an overall average percent
treatment of 99.5%. with an upper 50^ percentile average treatment of >99.9%, and with 61% of
the constituents evaluated treated to greater than 99.9%. All of the other innovative technologies
had average percent treatment of 67.6% to 98.8%. In addition, the percentage of constituents
treatable to a level in excess of 99.9% ranged from 0 to 9%, in comparison with 61% for the
thermal destruction technologies. Many constituents were treatable to only levels below 20%,
while the lowest level of treatment demonstrated for thermal destruction technologies was 95.6%.
Table 5-3 from the Soil Background Document, included in Attachment C, shows a side-by-side
comparison of thermal destruction and the Innovative technologies. Many types of constituents,
such as halogenated aliphatics and PNA's had 0% treatment for the innovative technologies,
whereas the lowest performance of incineration was 97%.

It is clear from the above data that thermal destruction technologies have demonstrated superior
performance to the innovative technologies evaluated by EPA. It is insane that EPA is proposing
to relax BOAT to reduce the dependency on a superior treatment technology. The data speaks for
itself. In addition, thermal destruction is properly called a matrix independent technology. A
review of the Soil Background Document and the attached ENSR report present some of the
limitations of these technologies. Examples include the following:

Biotreatment technologies are limited to particle sizes less than 0.85 mm. The waste must be
diluted to a solids range of 5 to 30% in order for the technology to be applied. The maximum
TOC content that is treatable is 3%. The issue of aeration is a complicated one for aerobic
biotreatment of volatile organics. If the aeration rate is too high, that more volatilization of
hazardous constituents occurs as opposed to actual treatment. On the other hand, if the aeration
rate is too low, then treatment is incomplete. Therefore, the technology is not generally applicable
to volatile constituents, and treatment data on volatiles is difficult to interpret since the reductions
in contaminants experience may be more due to volatilization as opposed to treatment. Another
problem with biotreatment is that it is not applicable to many commonly encountered hazardous
constituents. The attached report discusses these limitations, and the fact that PAHs, PCP, many
chlorinated solvents, chlorinated aromatics. chlorinated biphenyls, pesticides and nitroaromatics
are not amenable to biotreatment. In addition there has been little done to identify and
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characterize the breakdown products of biotreatment. '.vhich often can be hazardous constituents.
In essence these degradation products represent the same issue presented by PICs produced by
thermal destruction, but their concentrations are much higher. The typical treatment times
required for biotreatment are also a significant limitation, with a range of 28 to 164 days required.
This translates into a treatment rate of 0.1 Ibs/hour. vs several thousand Ibs/hour for thermal
destruction technologies. The technology is not judged to be applicable to process wastes.

Also attached at Appendix D is an excerpt from a report by the National Research Council
concerning In-Situ Bioremediation. Table 2-1 of this study identifies bioremediation as
''established" for only two subsets of contaminants, petroleum products and alcohols, ketones and
esters. All other classes of hazardous constituents are only described as "emerging1' or ''possible"
in applicability to treatment using bioremediation. It appears that this panel of NRC experts does
not consider bioremediation to be a demonstrated technology for a wide variety of contaminant
profiles, regardless of site characteristics.

Chemical Extraction technologies are also limited in applicability to particle sizes under 1.2 cm.
In addition, the hazardous constituents must be soluble to a level of at least 5% in the extraction
medium, in order for the technology to be effective. Oversized materials are not treated but are
merely separated for alternative treatment. The waste must be highly diluted before treatment can
be initiated, to a level of 2 to 30%. and oil and grease must be restricted to less than 40%. Total
organic carbon is restricted to less than 30%. For these reasons the technology is not generally
applicable to most organic contaminated process wastes, with the exception of petroleum refining
wastes. Soil must contain less than 30% clay, and soils high in humus content cannot be treated.
The volatile constituents in the soil may be simply volatilized and not treated. The volatile
constituents in the soil may be simply volatilized and not treated. The technology has been
demonstrated on a full-scale to be only applicable to certain semi-volatile constituents. The major
factor to keep in mind is that chemical extraction is a form of separation technology, and not
treatment. The separated phases containing concentrated hazardous constituents must still undergo
further treatment. Thermal Destruction technologies do not present any of these limitations.

Soil Washing is also another separation technology, that has similar limitations to chemical
extraction. It is difficult to apply to clay soils, and at least 50% of the soil matrix must be of a
sandy nature. Particle size must be reduced to less than 12.5 mm, and oversized materials must
be treated under another technology. Likewise, since it is a separation technology, the resulting
residuals still require subsequent treatment. Like chemical extraction, the constituents must be
soluble to a level of 5%, for the separation to be effective. Soils with high humic content are not
applicable to the technology. Since the technology depends on contamination being primarily
associated with fine particle size materials, like soil, it is not applicable to process wastes. Also
high carbon content soils, such as loam, are not applicable to soil washing (see Appendix E).
Table 2 in the ENSR report in the section on soil washing presents the chemical applicability of
soil washing. Full scale demonstrations for soil washing have been completed for certain
semivolatile constituents. The technology has only been evaluated on a bench or pilot scale for
volatile constituents and pesticides. Table 4 of the attached ENSR report in the section on soil
washing, provides the limitations of the technology. The limitations are extensive: for example the
technology is not applicable to viscous materials and volatile constituents are released and not
treated. Thermal destruction technologies are not subject to these limitations.
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The attached ENSR report on vitrification presents the scope, status and limitations of this
technology. The technology is limited to an organic content of less than 10%, and is therefore not
applicable to most process wastes. The technology is primarily an immobilization technique, and
the hazardous constituents are encapsulated in a glass like matrix. This may be acceptable for
metal constituents, for which BOAT is based on leachability, but this is not acceptable for organic
constituents for which BOAT is based on total constituent analysis. In essence the contamination is
left in place, merely sealed in a matrix. There are also significant issues with air emissions.
especially since this technology is not as highly regulated as thermal destruction. The fact that
heat is applied and volatilization of organics and volatile metals can occur, means that substantial
investment in effective off-gas cleaning equipment must be made.

Infrared treatment technologies have limitations with regard to the physical form of the waste.
The waste must be solid, passing the paint filter test in order to be amendable to this technology.
This limitation makes this technology not directly applicable to process wastes, and limited only to
dry soils. In addition, the particle size must be less than 3 cm. The moisture content must be
below 15% and the organic content must be limited to below 5%. As discussed in the attached
ENSR report, the emissions are a major concern, and extensive control technologies must be
applied. Also, halogenated wastes must be restricted since these materials result in corrosive gases
that attack the process equipment. Thermal destruction technologies are not subject to these
limitations.

Soil vapor extraction (SVE) technologies are limited in applicability to volatile constituents, which
are the only constituents that have been demonstrated in performance on a full scale basis. Again,
as with many of the other innovative technologies, the scope of SVE is simply separation and not
final treatment. Large quantities of residuals are generated that still require treatment. There are
major limitations on soil characteristics as discussed in the attached ENSR report. There are also
major air pollution control issues that must be addressed. These restrictions are not an issue with
Thermal Destruction technologies.

Thermal Desorption technologies are also limited in applicability, that is masked by the fact that
certain technologies, like the Canonie process, are operated more like incineration than thermal
desorption. The attached report discusses the limitations of this technology. The technology is
primarily separation, and to be true desorption the hazardous constituents in the off-gases must be
condensed and then either treated or recycled. There are three byproduct streams created:
condensed organic phase, an aqueous phase and a solid residue. All of these streams require
further treatment or recycling. In addition, the air emissions must be controlled, which may be an
issue since standards as stringent as incineration are not applied. The particle size of the
technology is limited to 3 cm, which makes the technology limited in applicability to soil, and not
process wastes. Water content must be as low as possible, but always less than 50%. The issue
with air emissions is emphasized in the Soil BOAT Background report which states that levels of
carbon monoxide emissions as high as 1700 ppm have been observed from certain units. These
units function more like incinerators, and in many cases combustion can be occurring more than
desorption. The HWTC has petitioned EPA to properly regulate these units to limit their scope of
true desorption. since incineration must meet the full scope of Subpart O standards.

In addressing the question of the appropriateness of using thermal desorbers to remove certain
hazardous constituents from contaminated soil, EPA must ensure that these devices are properly
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regulated to protect human health and the environment.

As \ve stated in our July 13. 1993. rulemaking petition, a growing number of desorbers employ
combustion step in treating soils and sludges. These devices are not true desorbers. Insteaa. they
are hybrids: partially engaged in desorption and partially engaged in incineration. To the extent
the unit is burning hazardous wastes, the Subpart 0 performance standards and operating controls
must apply. Even if device is truly engaged in desorption. an unreasonable risk to human health
and the environment would be posed from emission of harmful combustion by-products if the unit
is also burning some of the constituents without meeting incinerator standards. Full Subpart 0
requirements must therefore be met for all desorbers that burn hazardous wastes.

Moreover, we disagree with the Agency's approach stated in the appendix to the proposal, that
desorbers and incinerators should be distinguished based on their purposes. As stated in our
petition of July 13, the proposed test is inappropriate, for it is wholly unrelated to impacts on
human health and the environment, and it is inconsistent with existing EPA policy to make
distinctions based on what actually occurs in the unit, not on the operator's intent.

As stated in the attached letter we recently sent to EPA (Appendix 1), to better distinguish between
desorbers and incinerators, the Agency should revise the definition of "incinerator" in 40 C.F.R.
Section 260.10 so that Subpart O standards apply to any device that:

"Neither meets the criteria for classification as a boiler or carbon regeneration unit, nor is
listed as an industrial furnace, and uses heat and oxygen to oxidize organic materials at
temperatures exceeding 300o F whereby more than 5 percent of the organic materials are
either (a) totally or partially converted to non-condensable gases at standard temperatures
and pressures or (b) emitted to the atmosphere."

The chemical applicability of the technology is shown in Table 10 of Appendix E. in the section
regarding thermal desorption. As can be seen, high temperature thermal desorption is applicable
to most types of organic constituents, while low temperature is not applicable to semi-volatiles and
pesticides. Although thermal desorption is not as limited in applicability as other innovative
technologies, there are more restrictions with regard to matrix characteristics. Thermal
destruction does not suffer any limitations with regard to matrix characteristics.

In conclusion, thermal destruction has the widest applicability and the greatest effectiveness in
treatment of hazardous constituents in both soil and process waste matrices. The review conducted
in the attached ENSR report and of the Soil Background BOAT document prepared by EPA
demonstrate that the "innovative" technologies have significant limitations, and although they may
be useful in certain treatment scenarios, the technologies are not at a stage in which massive
revisions of the entire BOAT basis of the LDR program can be considered. In light of the
attached information on limitations, it is outrageous for EPA to even suggest relaxation of BOAT
treatment standards in order to encourage more innovative technologies, when these technologies
are so limited in applicability. In addition, a protective LDR program focus on environmental
quality would demand that these technologies perform to the same level of effectiveness as the best
demonstrated technology, and not relax the standards to encourage substandard treatment. EPA
claims in 58 Federal Register 48126 that it is "presenting this approach to provide safer, more cost
effective" treatment for remedial wastes. As shown below, the cost is no different. In addition.
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the above discussion demonstrates that these technologies are not safer, but are generally less safe.
If higher levels of contaminants are incorporated into treatment residuals that are later land
disposed, and if air emissions are higher, it is unreasonable for EPA to label these technologies as
safer. An objective consideration of the performance data for all technologies does not support
EPA abandoning thermal destruction in favor of less safe and effective treatment levels.

Response: The commenter points out to various soil properties or characteristics that may limit or
preclude the use of the non-combustion technologies supporting the treatment limits
established for hazardous soils. EPA refers to these soil properties or characteristics as
soil characteristic affecting treatment performance (SCATP). SCATP are discussed in EPA
1993a; EPA 1998a: EPA 1998d; EPA 1994; and EPA 1988. The HWTC identified
various scenarios that could preclude the use of a non-combustion technology. Further, the
commenter argues that EPA has retained treatment data that resulted from treatment
systems that were not well operated and designed for the whole of purpose of justifying
relaxation of the treatment standards. Finally, the commentor points out to various RCRA
policy issues, in particular, what kind of regulatory controls various non-combustion
technologies should be required to have and presumably, asks EPA to address these
comments in the final rule.

In summary, the commentor points out to different performance ranges that show the
superiority of combustion and other thermal treatment processes over chemical and
biological treatment processes. Based on these treatment data comparison, die HWTC
believes that the treatment standards in the 40 CFR 268.48 should be revised since
presumably thermal destruction and thermal desorption processes can treat hazardous soils.
Also, the commenter feels many of the non-combustion technologies in the soil data base
were not properly optimized and thus, the reported treatment ranges may be
biased. In the ENSR report (HWTC 1993), ENSR concludes that although some of these
technologies may be amenable to optimization, the cost will be too high that com- bustion
will be the best option to enable remediation . The ENSR report also submitted
performance data from various vendors/literature sources who have operated non-
combustion processes at the bench-, pilot-, or full-scale. (See HWTC 1993.)
These corroborative supplemental treatment data are in agreement with the treatment
performance data comprising the soil data base. ^See Appendices in HWTC 1993 vis a
vis Appendix D in EPA 1998d.)

Soil Characteristics Affecting Treatment Performance
EPA discusses similar findings to those SCATP emphasized by the commenter in Chapter
2 of EPA 1994, in particular, the overall, impact of soil textures or particle size
distributions:

"Soil particle-size distribution is an important factor in many soil treatment technologies. In
general, coarse, unconsolidated materials, such as sands and fine gravels, are easiest to treat.
Soil washing may not be effective where the soil is composed of large percentages of silt and
clay because of the difficulty of separating the adsorbed contaminants from fine and from
wash fluids. Fine particles also can result in high paniculate loading in flue gases from
rotary kiln as a result of turbulence. Heterogeneities in soil and waste composition may
produce nonuniform feedstreams for many treatment processes that result in inconsistent
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removal rates. Fine particles may delay setting and curing times and can surround larger
particles, causing wakened bonds in solidification/stabilization processes. Clays may cause
poor performance of the treatment process as a result of caking. High silt and clay content
can cause soil malleability and lo\v permeability during steam extraction, thus lowering the
efficiencies of the process."

However. EPA believes that mam SCATP. such as soil texture/particle size distribution, can
be addressed by homogenizing the soil, by optimizing the design and operation of the
selected treatment processes, or by the combined use of two or more treatment technologies.
(EPA 1998a. EPA 1998d. and EPA 1994.)

Achievabilitv of the Treatment Standards
Although some of the soil physical-chemical characteristics (SCATP) emphasized by the
commenter will limit the availability of a non-combustion technology at a site, another non-
combustion technology or technology train for the soil textures at the site may still enable
the use of non-combustion technologies. For example, the commenter emphasizes how
impractical it would be to apply soil washing to soils with high humic content. Because
hurmc content in the soil increases the adsorption of organics. other technologies designed
to target the removal of organics in hazardous soils can be used. For example, composting
can treat organics and humics in hazardous soils. Chemical extraction can also be operated
to allow the sequential- multiple extractions of acidic, basic, and neutral organics from soils.
Finally, physical and chemical treatment of the soil (e.g.. screening and panicle sizing.
chemical treatment and dewatenng. and pH adjustment) followed by thermal desorption
may still be an options for such soils.

As shown m Chapter 4 and supporting Appendices of EPA I998a. the soil data base
adequately describe the treatment of various soil textures ranging from difficult-to-treat
clays/silts to easier-to-treat coarse/sands. Soil texture/particle size distribution is among
one of the most important soil characteristics to know because this soil characteristic
parameter may be used to screen the applicability of certain remediation technologies. EPA
believes that these data base show the ability of non-combustion technologies to treat
various soil textures.

In other instances, particle size distribution enable the identification of adequate pre-
treatment steps or specialty/ancillary equipment that can help in the treatment of
the contaminants by an appropriate non-combustion treatment technology'.

The soil data base also include a few data points describing the treatment of oily/
acidic petroleum-sludges. These particular streams can mimic the treatment of soils
that have clay/silts as the dominant soil texture. Further, the soil data base show the
effectiveness of various technologies in treating difficult-to-treat soil textures and
difficult-to-treat constituents such as PNAs (4 and 5 more rings), dioxin and furans.
and creosote admixtures. There are other instances were the technology may be
inappropriate for one or two clusters of organic or metal groups and such constituent
clusters may require further treatment by another appropriate technology.
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Corroborative data in the 1995 and 1997 Supertund studies3' also show that soil
\anability can be managed by optimized ex-situ full-scale treatment processes.
For instance, these Supertund 1995 and 1997 studies document the following
approaches to treatment optimization:

1. Soil homogemzatiorr3 - involves the use of ex-situ physical/chemical (p/cj
processes to reduce soil heterogeneities that may inhibit treatment performance.
P/C processes can be used to screen and segregate fines from large soil fractions.
to mix soils with less contaminated/clean soils such that soil malleability can be
improved, or to treat other dominant soil physical/chemical characteristic in order to
facilitate or to enhance treatment.

.Another technique is the selective excavation of soils.39 This technique involves the
combined use of visual inspections, adequate site characterization data on soil texture
variability and contaminant distribution, historical site management practices, and field
sampling testing equipment/protocols in order to screen vertical soil bands or horizontal soil
that can be selectively excavated to undergo treatment. This other technique is routine to the
excavation and remediation of hazardous soils.

2. Technology design - involves an understanding of the contaminants in the soil, soil
properties that can inhibit treatment, the extrapolation of empirical data from feasibility
pilot-/bench-scale studies to full-scale operations. The extrapolation of empirical data also
involves the exercise of sound engineering judgments with regard to soil/contaminant
characteristics that can cause material handling problems, identification of ancillary or
specialty equipment units that can be installed to lessen such material handling problems.
and designing the right sequence these equipment ought to be installed and operated.

3. Technology operation - involves various trial and error steps that operators follow in
These data consist of many lull -scale treatment studies conducted at Supertund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (11 Remediation Case Studies: Bioremediation and Vitrification. Mv 1997. EPA 542-R-97-008 or
PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-177562; (31 Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997, EPA-542-R-97-007 See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desorption, Soil Washing, and In situ Vitrification. EPA- 542-R-9S-005 or NTIS: PB95-182945. March 1995; (3) Remediation Case
Studies: Soil Vapor Extraction , EPA-542-R-95-004 or NTIS: PB95-182937. March 1995; (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995; and (5) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

38
See description of soil screening and separation processes that enable the treatment of difficult-to-treat clay/silty soils via
hioremediation and the soil washing of sludge/soil bands; respectively, in the following Supertund 1995/1997 full-scale ex-situ
treatability studies: ( 1) Slurry Phase Bioremediation at the Southern Wood Preserving Supertund Site. Canton. Mississippi . in p. 83.
EPA 1997band i21 Soil Washing at the King of Prussia Technical Corporation Supert'und Site. Winslow Township. New Jersey, in
p.36 through 38 of EPA 1995b.
TQ
For example, see the selective soil excavation technique described in the corroborative full-scale Superfund study titled:
Soil Washing at the King of Prussia Technical Corporation Supert'und Site. Winslow Township. New Jersey, in p.35 & 36 of EPA
1995a.

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scoping the operational parameters that can be sustained to harness the capabilities of the
technology to treat the contaminated soils ana thus, meet the technolosy pre-designed
treatment objectives. For instance, operators may identify key resistant or difficult-to-treat
hazardous constituents to monitor for. and then optimize operational parameters that
enhance the removal or destruction of such, contaminants. For example, the operator may
operate the treatment process at a higher temperatures, an optimum pH range, a greater ratio
amount of reagent-to-contaminant, or at the upper range of the technology designed
treatment range provide for longer residence time.

Regulatory status of non-combustion technologies
The commenter raised various regulatory issues spanning from lack of controls on air
emissions from biological treatment processes to the kind of RCRA controls that the
commenters believe should be required on vitrification and thermal desorbers. Although
EPA is not addressing these particular issues in today's final rule. EPA points out that the
development of Maximum Achievable Control Technology for abating the emission of
Hazardous Air Pollutants from various emission sources at remediation sites are an on-going
regulatory efforts pursued by EPA.

EPA notes that the regulatory status of non-combustion devices is an issue that RCRA
permit \vriters at EPA Regional/authorized state offices routinely address within thecontext
of the permit process and other omnibus permit writer authorities. Therefore. EPA is not
addressing these particular comments in this rule.

EPA notes, however, that although hybrid thermal desorbers employing "combustion gases"
or "after burners" to abate gaseous or volatile emissions from thermal desorbers are likely
candidates to be required combustion controls under 264. Subpart 0. or equivalent controls
under Supart X. EPA believes that the convention of designating these devices as thermal
desorbers is still valid for the purpose of developing treatment standards for hazardous soils.
This is because these hybrid thermal desorbers can be re-engineered to operate in the
absence of combustion gases or after burner combustion devices. This premise is based on
the performance of other thermal desorbers that operate in the absence of combustion gases
and after burner controls. Three treatability studies in the soil data base describe the
treatment of hazardous acidic petroleum sludges and of creosote/PCP contaminated soils
support this point. One study is the bench-scale thermal distillation of petroleum refining
sludges by Southdown Thermal Dynamics. The second study describes TDI Services. Inc's
full-scale thermal desorption of simulated wood preserving soils. And the third study.
describes the pilot scale thermal desorption of a rail road treating site by a "screw -auger"
thermal desorber system.

Treatment of multi-constituents bv a single technology
The commenter feels that any data points that fall short from the combustion based limits in
the 40 CFR 268.48 do not warrant any consideration for rulemaking.

EPA disagrees with the commenter.

In arriving at non-combustion based treatment levels, the EPA has examined the available
non-combustion treatment performance data within the context of what treatment levels of
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performance are demonstrated for as difficult-to-treat clusters of chemical family analytes
or chemical treatability groups by the various technology studies in the soil data base (EPA
1998a. EPA 1998d, EPA 1993a.j For instance, the treatment of an admixture of organic
constituents in hazardous soils via air/steam stripping is often an appropriate treatment for
volatile hazardous constituents. The technology often attains an inferior performance.
however, with regard to the removal of many semi-volatile and non-volatile organics
(EPA I998a). However, EPA believes that by adding another appropriate treatment step
to the steam stripped soils, the concentrations of semi-volatile and non-semi-volatile
organics can attain the treatment limits. (EPA 1998a)

Also, EPA notes that the treatment regime pursued by pilot-scale and full-scale studies in
the soil data base were not necessarily intended to meet a 90% reduction limit or a pre-
determined UTS limit. In other instances, EPA believes that excursions from the
treatment standard supported by the available data were the direct result of soil variability
or heterogeneities in the soil being treated. Like the commenter, EPA believes that such
excursions can be adequately addressed with the routine monitoring of key treatment
performance indicator constituents and other operating parameters that can provide the soil
with adequate treatment. (See EPA 1998d.)

EPA strongly disagrees with the comment that the soil data base "falsely" retains data points
from processes that lacked optimization or where the technology was inappropriately
applied. EPA notes that admixtures of hazardous constituents occur at many hazardous sites
and it is thus appropriate to examine the data as is. what constituents are being treated. EPA
has also determined that soil heterogeneities occur yielding treated soils that deviate from
treatment objectives. EPA addresses these issues in Chapter 4 of EPA 1998a and EPA
1998d.

The treatment performance reduction levels that clusters of BOAT analytes and
contaminated soil and debris treatability groups have attained in the tested technologies is
discussed in EPA 1998a; EPA 1998b;andEPA 1998c. Although the treatment
performance data in the soil data base are in agreement with the premise that thermal
destruction and thermal processes are generally less soil-constituent matrix dependent, the
treatment data show that other non-combustion technologies can arrive to a reasonable
regime of treatment levels that are allowed by the statue. (See preamble discussion of
today's final rule in Section VII. (8); EPA 1998b. and EPA 1998c.)

In conclusion. EPA believes that the concerns expressed by the commenter are adequately-
addressed. The corroborative data show that many of the issues raised by the commenters
can be adequately addressed within the context of treatability feasibility studies
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which are an integral pan of soil remediation activities under both RCRA and
CERCLA programs. Further, the treatment performance of ex-situ full scale operations
(bioremediation. thermal desorption. and soil washing) in the 1995 and 199" Superfund
studies are congruent with the treatment performance that these technologies achieved for
similar difficult-to-treat hazardous constituents and harder-to treat soils in the soil data
base described in EPA 1998a.
References:
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IWHazardous Soiis/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic Functional
Groups and Types of Compounds." April 1998 from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c. memorandum titled:''Additibnai Information on Treatability of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d. Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
. Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1994, October 1994. Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology' Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology' (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II. Document Number CS2P-S0599)

EPA 1997a. October 1997. Treatment Technology' Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency' Response. Washington. D.C.

EPA 1995. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

If EPA can arbitrarily "demote" combustion technologies today and exercise a bias for other
technologies that it chooses to call "innovative" - all without scientific or environmental basis - it
can similarly arbitrarily "demote" other technology tomorrow. Just two years ago EPA considered
incineration to be "innovative" technology, and relied on this technology to move the nation away
from land disposal of untreated hazardous constituents.

EPA understandably wishes to see many technologies flourish. However, it must bear in mind the
purpose of that goal. The purpose of having many treatment technologies is to increase the
opportunity for minimizing threats to human health and the environment. When EPA instead
considers setting more lax treatment standards in order to encourage additional technologies, it is
totally losing sight of the gal of minimizing threats and is frustrating pollution prevention.

Moreover, EPA would be incorrect if it things that this approach would encourage significant
investment in additional technologies. Any policy based on arbitrary considerations, such as this
one, rather than on objective scientific criteria, will ultimately discourage investment. Investment
decisions depend in large part on having established, understood rule of the game, rather than
changing, arbitrary ones that cannot be relied upon over the periods of time necessary to amortize
new investments. When incineration was considered '"innovative" technology by EPA, many
companies invested millions of dollars to construct plants that fully comply with all standards for
safety and environmental protection. Now this investment is threatened by EPA's new arbitrary
preferences. Who is to say that biotreatment, soil washing or solvent extraction will not receive
similar arbitrary demotions from EPA in the future? EPA and the Administration are not
encouraging investment in environmental protection technology with this message. Such arbitrary
actions, such as EPA is displaying against thermal destruction technologies, are a major
disincentive for investment in development of innovative technologies, especially considering that
only 3 years ago thermal destruction was viewed by EPA as 'innovative and desirable'
technology." (Hazardous Waste Treatment Council. CS2P-00060)

Response: The treatment standards promulgated for hazardous soils are not arbitrary and
capricious. EPA has explained in the preamble EPA's rationale for the need to
arrive to a reasonable regime of treatment levels that can address the
variabilities of soil/contaminant matrices that routinely arise within the context
of remediation scenarios. The soil data base adequately documents the various
concentrations and numerous soil textures that warrant today's treatment levels.
and most important, the capabilities of non-combustion technologies on
appropriate treatability clusters of hazardous constituents. (See Chapter 4 of
EPA 1998a, EPA 1998c, and EPA 1998d.)

The Agency reiterates that, in the remediation context, in assessing whether threats

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oosed by land disposal have been minimized, one should appropriately consider the
risks posed by land disposal have been minimized, one should appropriately
consider the risks posed by leaving previously land disposed waste in place as
well as the risks posed by land disposal of waste after it is removed and treated.
62 FR 64506 (December 5. 1997). For example, if a treatment standard for
organic constituents based on performance of incineration typically results in
already land disposed materials such as contaminated soils being capped in r/iace
rather than more aggressively remediated, threats posed by land disposal of the
waste ordinarily would not be minimized. Conversely, a treatment standard that
results in substantial treatment followed by secure land disposal can be said to
minimize threats, taking into account the totality of threats posed (i.e. including
those posed if the soil were left in place untreated). Id. The soil treatment
standards will ordinarily ensure that contaminated soil is treated to satisfy RCRA
Section 3004(m), considering both the threats posed by new land disposal of
treated soil and the threats posed by on-going land disposal of existing
contaminated soil (e.g.. if the soil were left in place untreated)

For example, operation of an incinerator at or near the waste ash fusion
temperature can cause melting and agglomeration of inorganic salts; the loading of
clays and silts in some soils may also result in high loadings of paniculate matter in
flue gases. See Proposed BDA T Background Document for Hazardous Soils.
August 1993 and Technology Screening Guide for Treatment of CERCLA Soils
and Sludges. EPA 540/2-88/004, September 1988.

Thus, in response to the commenter's major premise, EPA's goal in this rule is not
to promote non-combustion technologies. Rather, it is to promote remediation
which includes treatment of soil, which in this context for the reasons just given
means treatment standards (for organics) which can be achieved by non-
combustion technologies.

Choices about which soil treatment technology to apply should be informed by
appropriate use of bench and pilot scale studies and good engineering judgement.
EPA acknowledges that the treatment efficiency necessary to achieve the soil
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treatment standards will depend on. among other things, the initial concentrations
of hazardous constituents in any given contaminated soil. Thus, not all soil
treatment technologies will be capable of treating every contaminated soil to meet
the standards adopted in this rule. However, the Agency finds that the standards
typically can be achieved by at least one of the demonstrated technologies, even in
the case of hard-to-treat hazardous constituents such as dioxins and furans.
polychlorinated biphenyls, and polynuclear aromatics.
References:
EPA I998a. Soil Data Analysis: Soil Treatability Analysis of Treatability Data for Contaminated
Soil Treatment Technologies. Office of Solid Waste, Arlington, Virginia. (RCRA Docket for
Phase rVVHazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum titled:'TJ)erivation of Treatment Achievability Results for Organic
Functional Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow
of EPA Office of Solid Waste, .Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
SoilsAF-98-2P4F-FFFF.)

EPA 1998c, memorandum titled: "Additional Information on Treatability of Contaminated Soils
as Discussed in Section VII.B. 8. of Phase IV Final Rule Preamble." April 1998, from Jose E.
Labiosa and Rita Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data
Base Among Hazardous Constituents in Contaminated Soils and Other Implementation." April
1998. from Jose E. Labiosa of EPA Office of Solid Waste, Arlington. Virginia. (RCRA
Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

• ;'In Table 1 within this proposed rule, the EPA has published a listing of treatment technologies
that we believe meet this criteria and are therefore available for treating hazardous soil. The EPA
has based this option on data collected from CERCLA remedial actions, demonstrations under the
site program, industrial sources and EPA sponsored treatment tests. The EPA has divided the
technologies into the following nine general categories:

a. Biological Treatment
b. Chemical Extraction
c. Dechlorination
d. High-Temperature metals Recovery
e. Solidification/Stabilization/Immobilization
f. Thermal Desorption
g. Thermal Destruction
h. Vitrification
i. Soil Washing
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The individual reports for these technologies have been included with this report as attachments A
through I and the reader is referred to these attachments for specific discussion of the individual
technologies. The conclusions from these reports have been summarized in Table 1. While some
of these technologies are intriguing and offer promise for the future, as can be seen in this table.
the quantities of materials that have been processed for evaluation by BOAT screening criteria are
small. Further, few of these technologies have been demonstrated with data that has been
rigorously subjected to QA/QC review. Finally, few of these technologies are classified as
destruction processes. Rather they are essentially separation process which rely heavily on other
off site processes to accomplish destruction of the contaminants of concern. This is true even of
some of those processes which purport to be destruction processes. Such is the case of the APEG
family of dechlorination technologies. While the technology may be capable of complete
dechlorination, process economics do not allow it. Rather than completely destroying the
chlorinated contaminants, they are instead simply converted to other materials to which the
analytical procedures for the original contaminant do not respond. This is recognized in the
permitting process for these technologies resulting in incineration of residuals being an integral
part of the permit for this process.

In summary, fixed facility off site incineration remains as the only technology fully demonstrated
to be capable of destruction of a wide range of the contaminants of concern. Further, it is the only
technology consistently shown by such demonstration to be capable of high destruction efficiencies
to low concentration levels." (Hazardous Waste Treatment Council, CS2P-00060.E) GREEN
FILE LABEL

Response: EPA disagrees with the commenter's conclusion that combustion is still the only technology
that is capable of achieving the treatment standards. The HWTC's findings are not
supported by the soil data base and other corroborative published literature. (See EPA
1998a and 1995 and 1997 Superfund treatability studies40 describing ex-situ and in-situ
treatment processes. Further, the HWTC has submitted treatment data from other published
treatability studies that meet the treatment standards (HWTC 1993).

EPA agrees, however, with another HWTC finding (HWTC 1993) that there would be
instances were multiple-contaminants or difficult-to-treat soils may require a treatment train
to attain the treatment standards. The feasability of such treatment trains in achieving the
treatment standards for hazardous soils are documented in Chapter 3 of EPA 1998a.

Also, EPA aerees with HWTC/ENSR's comment that other remediation residues from non-
These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 ° a reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-OOR or
PB97-! 77554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. Julv 1997. EPA 542-R-97-D09
or NTIS PB97-177562; (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (21 Remedia-tion Case Studies: Thermal
Desorrmon. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995; (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: P395-182937. March 1995: (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. Marcn 1995; and (5) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

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combustion technologies (i.e.. sludges with hazardous contaminants, spent solvents with
trace or concentrated amounts of hazardous confluents, etc..) may require further treatment
prior to land disposal. However, treated soils :h;t meet the treatment standards may be
land disposed.

References:
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Tr;:tability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virsirja. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF)

HWTC 1993. November 1993. Evaluation of Proposed BOAT S::l and Process Treatment Technologies --
Report to the Hazardous Waste Treatment Council. ENSR Consuming and Engineering, Document Number
3393-002.. submitted to EPA by the Hazardous Waste Treatmen: Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).

• "Appendix C

Tables summarizing performance of innovative technologies based on information obtained from
EPA's BOAT Background Document for Soil - Docket =CS2P-S0599." (Hazardous Waste
Treatment Council. CS2P-00060.C) GREEN FILE LABEL

Response: EPA acknowledges HWTC's argument that thermal destruction and thermal desorption
processes can achieve greater removal rates than other non-combustion technologies. Also.
this Table show the percent of data points that c-n meet the treatment standards being
promulgated today. Similar. Tables reporting similar information on a technology and
chemical BOAT anaKte or Contaminated Soil and Debris treatability group cluster basis
can be found in Chapter 4 and Appendices of EPA 1998a; Chapter 5 of EPA 1993a: EPA
1998b:andEPA 1998c.

The Agency reiterates that, in the remediation context, in assessing whether threats posed by
land disposal have been minimized, one should appropriately consider the risks posed land
disposal have been minimized, one should appropriately consider the risks posed by leaving
previously land disposed waste in place as weii as the risks posed by land disposal of waste
after it is removed and treated. 62 FR 64506 i December 5. 1997). For example, if a
treatment standard for organic constituents basea on performance of incineration typically
results in already land disposed materials such as contaminated soils being capped in place
rather than more aggressively remediated, threats posed by land disposal of the waste
ordinarily would not be minimized. Conversely, a treatment standard that results in
substantial treatment followed by secure land disposal can be said to minimize threats.
taking into account the totality of threats posed ;i.e. including those posed if the soil were
left in place untreated). IcL The soil treatment standards will ordinarily ensure that
contaminated soil is appropriately treated within the meaning of RCRA Section 3004(mj.
considering both the threats posed by new land disposal of treated soil and the threats posed
by on-going land disposal of existing contaminated soil (e.g., if the soil were left in place
untreated).

For soil contaminated with organic constituents. EPA has noted manv times that.
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notwithstanding the fact that such soils can be burned, it is generally unsuitable or
impractical from a technical standpoint to burn large volumes of mildh contaminated soil.
See. For example. 55 FR at 8760 and 8761 (March 8. 1990) and 61 FR 18806-18808 (April
29. 1996). In addition, the Agency has documented potential difficulties that may arise from
the combustion of soil due to soil/contaminant characteristics that affect incineration
performance such as the concentrations of volatile metals, the presence of alkali salts, fine
panicles of soils such as clays and silts, and the ash fusion point of the contaminating
waste. For example, operation of an incinerator at or near the waste ash fusion temperature
can cause melting and agglomeration of inorganic salts; the loading of clays and silts in
some soils may also result in high loadings of paniculate matter in flue gases. See Proposed
BDATBackground Document for Hazardous Soils. August 1993 and Technology
Screening Guide for Treatment ofCERCLA Soils and Sludges, EPA 540/2-88/004.
September 1988.
• "Critique of Proposed Soil BOAT And Soil Treatability Database

Limited innovative technology data available (295 tests for 9 technologies).
a. Total of 2540 data pairs for 80 constituents (average of 3 Vi data pairs per constituents per
technology).
b. Data from 80 constituents extended to 232 constituents.
c. 85% of tests in database on < 1000 kg ( 5 drums) of soul. 40% of tests in database on <
I kg ( 1 quart) of soil.
d. EPA increased the minimum treatability sample size for media contaminated with non-
acute hazardous waste to 10, 000 kg ( 59 Fed. Reg. 8362 ( Feb. 18. 1994).
e. Contaminated soils are highly heterogeneous, both physically and chemically - small
samples are unrepresentative.
f. Bench/pilot scale tests in database are unrepresentative of both process variability and
scaled up performance.
g. Constituent by constituent analysis underlying proposed UTS does not reflect performance
of any given technology on typical range of constituents in soil matrix.
h. Any given innovative technology has (often widely) varying degrees of efficiency for
different constituents.
i. Very strong concern that innovative technologies will seldom meet the stringent proposed
BDATs for all of the different constituents in soil.
j. Suggests only incineration will achieve proposed BDATs on many soils (more uniform
treatment efficiency across constituents).
k. Appears inconsistent with HWTR policy goal of using innovative technologies." (RCRA
Corrective Action Project, CS2P-00164.D)

Response: EPA disagrees with the comment that the proposed treatment standards can only be
achieved by combustion technologies. For contaminated soil, the Agency has chosen to
establish technology-based soil treatment standards at levels that are achievable using a
variety of common remedial technologies which destroy, remove or immobilize substantial
amounts of hazardous constituents. 58 FR 48129 (September 14. 1993).

The commenter also raised several issues regarding EPA's data base, treatability data

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analysis, the scale of treatability studies, and the applicability of non-combustion
technologies to multiple-contaminants at hazardous sites. The issues raised by the
commenter are clustered into general categories and they are addressed below.

Description of the soil data base supporting today's treatment standards for hazardous soils

Regarding number of hazardous constituents tested, data points, and the scale of tests
comprising the data base, see EPA 1998a and EPA 1993a.

Scale of treatability studies and rationale to extrapolate the available treatment
performance data to other Underlying Hazardous Constituents

EPA concurs with the commenter that it is desirable to have larger sample sizes, generally.
when conducting feasibility studies. Also. EPA points out that there are full- scale
data for biotreatment processes (five studies), chemical dechlorination (one study).
stabilization (three studies), steam stripping (four studies), and thermal desorption (six
studies) in the soil data base. (See Appendix D in EPA 1998a.) The bench- and pilot- scale
data for these full-scale processes in the soil data base further corroborate the
feasibility for transferring the proposed treatment standards. However. EPA has found that
regardless of the sample size being examined, the extrapolation of bench-/pilot-scaledata to
the scaling of full-scale operations is often an empirical and site specific process that
require the exercise of good engineering judgement and the conduction of trial and error
operations. Other consulted treatability studies (EPA 1998a. EPA 1988d. EPA 1994)
show that full-scale ex-situ processes;41 such as those supporting the treatment
standards being promulgated today, can be engineered and optimized to meet a pre-
determined regime of treatment objectives. (EPA1998d. EPA 1998a.) EPA has also found
that the treatment performance ranges attained by the treatability studies in the soil data base
meet are congruent with those reported in other consulted literature including literature that
describe full-scale operations. (See Chapter 3 in EPA1998a. cited references in EPA 1998d.
and ex-situ treatment studies in 1995 and 1997 Superfund treatability studies.4" and other
literature cited below. ) Further, the soil data base describes the treatment of difficult-to-
treat soil textures and difficult-to treat admixtures of hazardous constituents/multiple-
contaminants (see Appendix D in EPA
1998a and EPA 1998d). In all cases, at least some of the data shows that the soil
41Namely, technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

These data consist of many full -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-008 or
PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. Julv 1997. EPA 542-R-97-009
or NTIS PB97-177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995: (3) Remediation Case
Studies: Soil Vapor Extraction , EPA-542-R-95-004 or NTIS: PB95-182937. March 1995'. (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-18291 1. March 1995; and (5) Remediation Case Studies: Groundvvater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

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standards have been achieved on difficuit-to-treat matrices or soils contaminated with
hard-to-treat constituents using full scale treatment. Based on these findings. EPA is
proceeding with the proposed treatment standards for hazardous soils.

In evaluating what paired data points were suitable as a basis for the Phase [V hazardous
soil treatment standards. EPA did examine for possible bias in the consulted studies and
rejected data points that resulted from bench-/pilot- scale data and operational practices that
result from atypically designed and operated full-scale operations. For example, the Data
Summary Form (DSF) Number 76 A. biotreatment. was rejected because the treatment batch
test involved a bed that was tilled daily and continuously aerated. Clearly. DSF Number 76
is an atypical practice of full scale biotreatment process operation. A full scale operation
may involve, instead, the aeration of soils twice a week. See Chapter 5 of the BOAT
Background Document for Hazardous Soil. August 1993. for a discussion of the criteria
EPA adopted for the review and evaluation of the available data in this docket. Also, see
EPA's findings on these data review and evaluation can be found in administrative record.
(EPA 1993a.)

Other consulted treatability studies/literature (EPA 1998a. EPA 1988d. EPA 1994^ show
that ex-situ processes13: such as those supporting the treatment standards being promulgated
today, can be engineered and optimized to meet a pre-determined regime of treatment
objectives. (EPA 1998d. EPA 1998a) Based on these findings. EPA is not persuaded by the
commenter's recommendation that the proposed mass based thresholds are adopted for the
purpose of analyzing what available treatment data may be suitable for rulemaking.

In this rulemaking, given the variability of hazardous soils (in terms of soil textures.
concentrations and numbers of hazardous constituents and soil matrices), plus the special
considerations of facilitating treatment during remediations. the Agency is
adopting treatment standards from the zone of reasonable values which could be
permissibly selected based upon the performance data. Thus, the data are not being used
so much to establish a precise performance level as to confirm the typical
achievability of the promulgated standards, i.e.. ten times UTS or 90% reduction.

The available data are adequate to describe soil variability and multiple-constituent
remediation scenarios

EPA agrees with the commenter that soils are inherently variable in their physical and
chemical characteristics. Usually, the variability is much greater vertically than
horizontally, resulting from the soil variability in the process that originally formed the soils.
The soil variability, in turn, will result in variability in the distribution of water and
contaminants and in the ease with which contaminants can be transported within. and
removed from, die soil at a particular site. (EPA 1994.)

EPA disagrees with the commenter. however, that such soil physical-chemical variability is
lacking in the soil data base. As shown in Chapter 4 and supporting Appendices of EPA
Namely, technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

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1998a. the soil data base adequately describe the treatment of various soil textures ranains
from difficult-to-treat clays/silts to coarse/sands. Soil texture/particle size distribution is
among one of the most important soil characteristics to know because this soil characteristic
parameter may be used to screen the applicability of certain remediation technologies. In
other instances, particle size distribution enable the identification of adequate pre-treatment
steps or specialty/ancillary equipment that • enable the contaminants to be
treated by an appropriate non-combustion treatment technology.

The soil data base also include some data points describing the treatment of oily/acidic
petroleum-sludges. These particular streams can mimic the treatment of soils that have
clay/silts as the dominant soil texture. Further, the soil data base show the effectiveness of
various technologies in treating difficult-to-treat soil textures and difficult-to-treat
constituents such as PNAs (4 and 5 more nngsj. dioxin and furans. and creosote admixtures.
There are other instances were the technology may be inappropriate for one or two clusters
of organic or metal groups and such constituent clusters may require further treatment by
another appropriate technology'.

Corroborative data in the 1995 and 1997 Superfund studies1"4 also show that soil variability
can be managed by optimized ex-situ full-scale treatment processes. For instance, these
Superfund 1995 and 1997 studies document the following approaches to treatment
optimization:

1. Soil homogenization:" - involves the use of ex-situ physical/chemical (p/c) processes to
reduce soil heterogeneities that may inhibit treatment performance. P/C processes can be
used to screen and segregate fines from large soil fractions, to mix soils with less
contaminated/clean soils such that soil malleability can be improved, or to treat other
dominant soil physical/chemical characteristic in order to facilitate or to enhance treatment.

Another technique is the selective excavation of soils. This technique involves the combined
use of visual inspections, adequate site characterization data on soil texture variability' and
contaminant distribution, historical site management practices, and field sampling testing
These data consist of many full -scale treatment studies conducted at Superfund sites. Manyot' theex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: 11) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-D08 or
PB97-177554; (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-177562; (Ti Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995; (2) Remedia-tion Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995: (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995; (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995; and (5) Remediation Case Studies: Groundvvater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

See description of soil screening and separation processes that enable the treatment of difficult-to-treat clay silty soils via
hioremediation and the soil washing of sludge/soil bands; respectively, in the following Superfund 1995/1997 full-scale ex-situ
treatability studies: I 1) Slurry Phase Bioremediation at the Southern Wood Preserving Superfund Site. Canton. Mississippi . in p. 83.
EPA 1997b and (2) Soil Washing at the King of Prussia Technical Corf oration Superfund Site. Winslow Township. New Jersey, in
p.36 through 38 of EPA 1995b.

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References:
equipment protocols in order to screen vertical soil bands or horizontal soil that can be
selectively excavated to undergo treatment. This other technique is routine to the excavation
and remediation of hazardous soils.lfi

2. Technology design - involves an understanding of the contaminants in the soil, soil
properties that can inhibit treatment, the extrapolation of empirical data from feasibility
pilotVbench-scale studies to full-scale operations. The extrapolation of empirical data also
involves the exercise of sound engineering judgments with regard to soil/contaminant
characteristics that can cause material handling problems, identification of ancillary or
specialty equipment units that can be installed to lessen such material handling problems.
and designing the right sequence these equipment ought to be installed and operated.

3. Technology operation - involves various trial and error steps that operators follow in
scoping the operational parameters that can be sustained to harness the capabilities of the
technology to treat the contaminated soils and thus, meet the technology pre-designed
treatment objectives. For instance, operators may identify key recalcitrant or difficult-to-
treat hazardous constituents to monitor for and then, optimize operational parameters that
enhance the removal or destruction of such contaminants. For example, the operator mav
operate the treatment process at a higher temperatures, an optimum pH range, a greater ratio
amount of reagent-to-contaminant, or at the upper range of the technology designed
treatment range provide for longer residence time.

In conclusion. EPA believes that the concerns expressed by the commenters are
adequately addressed. The corroborative data show that many of the issues raised by the
commenters can be adequately addressed within the context of treatability feasibility studies
which are an integral part of soil remediation activities under both RCRA and
CERCLA programs. Further, the treatment performance of ex-situ full scale operations
(bioremediation. thermal desorption. and soil washing) in the 1995 and 1997 Superfund
studies are congruent with the treatment performance that these technologies achieved for
similar difficult-to-treat hazardous constituents and harder-to treat soils in the soil data base
described in EPA 1998a.
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum titled:;'Derivation of Treatment Achievability Results for Organic Functional
Groups and Txpes of Compounds.'" April 1998. from Jos6 E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
For example, see the selective sou excavation technique described in the corroborative full-scale Superfund study titled:
Soil Washing at the King ot'Prussia Technical Corporation Superfund Site. Winslow Township. New Jersey, in p.35 & 36 of EPA
! 995a.

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Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa ana Rita
Cho\v of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soiis/F-98-2P4F-FFFF.)

EPA 19<-)8d. Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA I997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1993b. March 1993. Technology' Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1993c. April 1993. Final Best Demonstrated Available Technology (BOAT) Background Document for
Universal Standards. Volume A: Universal Standards for Nomvastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste. Washington. D.C. 20460

EPA 1993d. April 1993. Final Best Demonstrated Available Technology (BOAT) Background Document for
Universal Standards. Volume B: Universal Standards for Wastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste, Washington, D.C. 20460

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA has expressed a desire to move towards a more risk based regulatory approach. We fully
support such an approach, and believe the establishment of soil treatment goals in the HWIR
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context provides an opportunity to do so. As the Agency is aware, contaminated soils and other
remediation wastes are very different from as generate waste, and are typically managed under
intense regulatory scrutiny. This is an environment in which a flexible risk based approach is
clearly appropriate, allowing for full oversight and involvement of regulatory agencies and the
local community in the process to ensure robust decision making.

Technology based LDRs have played a valuable role in driving waste minimization for as
generated wastes. In remediation, however, the goal is "waste maximization;" to manage and
remediate more, not less, waste. Technology based treatment goals for remediation wastes (the
current LDRs) have presented significant impediments and disincenuves to remediation. LDR-like
technology based standards for soil and other remediation wastes present the risk of simply
perpetuating these impediments, thus providing limited regulatory relief.

DuPont and other industry parties have been and continue to be willing to discuss technology based
treatment standards in the context of HWIR as part of a larger negotiated agreement (which
include appropriately limiting mandatory treatment to the small percentage of highly contaminated
remediation wastes). However, we continue to believe that flexible risk based treatment standards
for remediation wastes would provide the most appropriate, workable approach.

IF TECHNOLOGY BASED. REMEDIATION WASTE TREATMENT STANDARDS
SHOULD BE BASED ON THE FULL RANGE OF REMEDIAL TECHNOLOGIES

In the soil LDR proposal EPA essentially established incineration based treatment standards and
modified them slightly to derive standards for soils, ostensibly to ensure that innovative soil
treatment technologies would be able to meet the standards. The data base to support the ability of
these innovative technologies to achieve the suggested treatment goals (such as 90% removal or
the Universal Treatment Standards times 10) is extremely limited, and we do not believe it
supports such standards. If, under HWIR, EPA chooses to establish treatment standards based
upon technology, such standards should be based upon the performance of proven, available
innovative remediation technologies, not upon incineration, to ensure that the full range of
effective innovative treatment technologies are employed. To set treatment standards for
hazardous soil that limit applicable technologies to incineration would be both contrary to EPA
policy and to progress in remediation programs.

We note with some concern that EPA has made several unsupported assertions in the proposed
rule to the effect that most hazardous soils are contaminated at ''low" and "medium" levels, and that
combustion is the most appropriate technology for many highly contaminated hazardous soils. No
data is provided to support this assertion. In fact, many innovative technologies can treat highly
contaminated soils and remediation wastes. We encourage the Agency to avoid unsupported
pronouncements about the role of incineration that appear to be at odds with their stated
combustion strategy.

EPA'S CURRENT SOIL TREATABILITY DATABASE IS INSUFFICIENT TO SET
TECHNOLOGY BASED STANDARDS

The emergence and application of innovative remedial technologies is relatively recent. As such,
there is relatively little data available on their performance, particularly at full scale. However.
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there is a marked growth in the availability of such data, as increasing numbers of pilot and full
scale applications of such technologies occur. EPA's current Soil Treaiability Database (STD)
reflects the state of technology development in the late 1980's and early 1990's. It contains a
limited, small scale data set which does not provide EPA sufficient data to establish valid
technology based treatment standards. Significantly more innovative technology performance data
will become available in the next few years judging by the projections of EPA's Technology
Innovation Office and DuPonfs own activities. The regulation of soils and other remediation
wastes should take advantage of this trend towards greater volumes and quality of data. Under
HWTR EPA should develop a regulatory regime that encourages the use of innovative treatment
technologies by ensuring reasonable treatment goals which can both be achieved by these
technologies and will protect human health and the environment. The establishment of
unrealistically stringent treatment goals would serve to inhibit the development and application of
innovative technologies. Establishing treatment goals as specified technologies for certain
contaminant classes and soil types would serve to drive the development and use of innovative
technologies and provide more and better performance data.

In the capacity evaluation and the RIA of the proposed soil LDR rule EPA makes clear its
ambivalence on whether innovative technologies can really achieve the proposed LDR standards.
We concur with this concern." (DuPont, CS2P-L0003)

Response: Risk vis a vis technology based treatment standards. All
land disposal restriction treatment standards must satisfy the requirements of RCRA section
3004(m) by specifying levels or methods of treatment that "substantially diminish the
toxicity of the waste or substantially reduce the likelihood of migration of hazardous
constituents from that waste so that short-term and long-term threats to human health and
the environment are minimized."' As EPA has discussed many times, the RCRA Section
3004(m) requirements may be satisfied by either technology-based standards or risk-based
standards. This conclusion was upheld in Hazardous Waste Treatment Council v. EPA.
886 F.2d 355. 362-64 (D.C. Cir. 1989). where technology-based LDR treatment standards
were upheld as a permissible means of implementing RCRA Section 3004(m) provided they
did not require treatment beyond the point at which threats to human health and the
environment are minimized. Today's treatment standards for contaminated soils are
primarily technology-based: however, a variance from the technology-based standards is
allowed when EPA or an authorized state makes a site-specific determination that threats
posed by land disposal of the soils are minimized at higher concentrations.

EPA has long indicated that its preference would be to establish a complete set of risk-based
land disposal treatment standards at levels that minimize short and long-term threats to
human health and the environment. See. for example. 55 FR at 6641 (Feb. 26. 1990).
However, the difficulties involved in establishing risk-based standards on a nationwide basis
are formidable due in large part to the wide variety of site-specific physical and chemical
compositions encountered in the field and the uncertainties involved in evaluating long-term
threats posed by land disposal. Id.; 60 FR 66380 - 66081 (Dec. 21. 1995). For these
reasons the Agency has chosen to establish land disposal restriction treatment standards
based on the performance of specific treatment technologies. Although technology-based
treatment standards are permissible, they may not be established at levels more stringent
than those necessary to minimize short and long-term threats to human health and the
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environment. Hazardous Waste I'reatmeni ('nuncil. 886 F. 2d at 562 dana disposal
restncnon treatment standards may not be established, "beyond the point at which there is
not a "threat" to human health or the environment").

While using risk-based approaches to determine when threats are minimized on a national
basis has proven extremely difficult, these difficulties will dimmish when evaluating risks
posed by a specific contaminated soil in a particular remediation setting since, during
remediation, one typically has detailed site-specific information on constituents of concern.
potential human and environmental receptors, and potential routes of exposure. For this
reason. EPA is establishing a site-specific variance from the technology-based soil treatment
standards, which can be used when treatment to concentrations of hazardous constituents
greater (i.e. higher) than those specified in the soil treatment standards minimizes short- and
long-term threats to human health and the environment. In this way. on a case-by-case basis.
risk-based LDR treatment standards approved through a variance process could supersede
the technology-based soil treatment standards. This approach was first discussed in the
September 14. 1993 proposal, where EPA proposed that determinations that contaminated
soil did not or no longer contained hazardous waste could supersede LDR treatment
standards, if the "contamed-m" level also constituted a "minimized threat" level. It was
repeated in the April 29. 1996 proposal where the Agency proposed that, in certain
circumstances, variances from land disposal restriction treatment standards could be
approved in situations where concentrations higher then the treatment standards minimized
threats/" 58 FR 48128 (September 14. 1993 i and 61 FR 18811 and 18812 (April 29.
1996).

Should technology based treatment standards be achieved by all non-combustion
technologies?

Although it is the goal of EPA to establish treatment standards that allow greater use of non-
combustion technologies to further the goal of remediations involving treatment of
contaminated soil. EPA is not persuaded by the argument that treatment standards ought to
be more lenient than the limits established today. RCRA 3004(m) does not compel EPA to
establish treatment levels that are achievable by all or many technologies, the statute
directs EPA to establish treatment levels that substantially reduce the mobility or toxiciry of
hazardous constituents prior to disposal such that the short- and long-term threats
to human health and the environment are minimized. Basing standards on
performance of non-combustion technologies which do not treat effectively simply is not a
valid way to implement the statutory mandate.
In the April 29. 1996 proposal, the Agencv proposed to limit variances based on a site-specific minimize threat
determination to contaminated soils where all concentrations of hazardous constituents were below a "bright line/' that is. below a 10-
3 risk level. The Agency also requested comment on extending site-specific minimize threat variances to other contaminated soils.
Based on further consideration and consideration of comments, the Asencv is persuaded that a site-specific minimize threat variance
should be available to all contaminated soils. The Agency believes this is proper because the outcome of a site-specific, risk-based
minimize threat variance — alternative, site-specific LDR treatment standards based on risk -- will be the same reeardless of the initial
concentrations of hazardous constituents. In anv case, the Agencv is not. at this time, taking action on the portion of the April 29.
1996 proposal that would have established a -bright line" to distinguisn between higher- and lower-risk media. If. in the future.
the Agency takes action to establish a bright line, it will address the relationship of a bright line to site-
specific minimize threat variances.

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EPA believes that by requiring a 90 % reduction or 10 times the UTS treatment limits in the
40 CFR $268.48. the requirements of 3004(m> are met. Although EPA agrees with
most commenters that risk based limits are also valid constructs of 3004(m). and
provided that such limits can be established with the requisite certainty that threats to human
health and the environment are minimized. EPA believes that technology based limits
are also appropriate to regulate the disposal of soils contaminated with hazardous wastes
since such standards provide an objective measure of determining that threats are indeed
being reduced I normally to the limit of a technology reasonably applied to the waste)
so as to substantially reduce hazardous constituent mobility or concentration."s EPA has
long indicated that us preference would be to establish a complete set of risk-based land
disposal treatment standards at levels that minimize short and long-term threats to human
health and the environment. However, the difficulties involved in establishing nsk-based
standards on a nationwide basis are formidable due in large part to the wide variety of site-
specific physical and chemical compositions encountered in the field and the uncertainties
involved in evaluating long-term threats posed by land disposal.

The soil treatability data base is sufficient to establish treatment standards.
EPA disagrees with the commenter that non-combustion (i.e.. "innovative") technologies
considered by EPA cannot support the establishment of treatment standards. Nor is EPA
persuaded by the proposed approach that an interim teasing program shall be established
until more full-scale operations are in place. Although EPA lacks treatment data
describing the full-scale operation of soil washing and vitrification, EPA believes that
these technologies can meet the treatment standards. (EPA1998a, EPA 1998d. EPA
1997b, EPA I995a, and EPA 1995b, and EPA 1994.) Corroborative data also
demonstrate that full-scale operation of soil washing and vitrification processes can meet
the treatment standards for hazardous soils. (EPA I995a (soil washing), EPA I995b (soil
washing), and EPA 1997b (vitrification).

EPA concurs with the commenter that it is desirable to have larger sample sizes.
generally, when conducting feasibility studies as well as larger pools of full-scale studies.
EPA points out that there are full-scale data for biotreatment processes (five studies).
chemical dechlonnation (one study), stabilization (three studies), steam stripping (four
studies), and thermal desorption (six studies) in the soil data base. (See Appendix D in EPA
1998a.) The bench- and pilot- scale data for these full-scale processes in the soil data base
further corroborate the feasibility for transferring the proposed treatment standards.
However. EPA has found that regardless of the sample size being examined, the
extrapolation of bench-/pilot-scale data to the scaling of full-scale operations is often an
empirical and site specific process that require the exercise of good engineering judgement
and the conduction of trial and error operations. Other consulted treatability studies (EPA
48 Under today's rule, EPA is setting technology based limits under Section 3004 (m) ol'RCRA. Note that
CERCLA. section 121 .as amended by SARA. P.L. 1986. expresses a preference for remedies that provide a
permanent solution and alternative treatment technologies to the maximum extent possible.

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1998a. EPA 1988d. EPA 1994) sho\v that full-scale ex-situ processes:" such as those
supporting the treatment standards being promulgated today, can be engineered and
optimized to meet a pre-determmed regime of treatment objectives. (EPA1998d. EPA
1998a.) EPA has also found that the treatment performance ranges attained by the
treatability studies in the soil data base meet are congruent with those reported in other
consulted literature including literature that describe full-scale operations. (See Chapter 5 in
EPA1998a. cited references in EPA 1998d. and ex-situ treatment studies in 1995 and
1997 Superfund treatability studies,-'" and other literature cited below. ) Further, the soil
data base describe the treatment of difficult-to-treat soil textures and difficult-to treat
admixtures of hazardous constituents/multiple contaminants (see Appendix D in EPA 1998a
and EPA 1998d). In all cases, at least some of the data shows that the soil standards have
been achieved on difficult-to-treat matrices or soils contaminated with hard-to-treat
constituents using full scale treatment. Based on these findings. EPA is proceeding with the
proposed treatment standards for hazardous soils.

In evaluating what paired data points were suitable as a basis for the Phase IV
hazardous soil treatment standards. EPA did examine for possible bias in the
consulted studies and rejected data points that resulted from bench-/pilot- scale data and
operational practices that result from atypically designed and operated full-scale operations.
For example, the Data Summary Form (DSF) Number 76 A. biotreatment. was rejected
because the treatment batch test involved a bed that was tilled daily and continuously
aerated. Clearly. DSF Number 76 is an atypical practice of full scale biotreatment process
operation. A full scale operation may involve, instead, the aeration of soils twice a week.
See Chapter 5 of the BDAT Background Document for Hazardous Soil. August 1993. for a
discussion of the catena EPA adopted for the review and evaluation of the available data in
this docket. Also, see EPA's findings on these data review and evaluation can be found in
administrative record. (EPA 1993a.)

Other consulted treatability studies/literature (EPA 1998a. EPA 1988d. EPA 1994) show
that ex-situ processes31; such as those supporting the treatment standards being promulgated
today, can be engineered and optimized to meet a pre-determrned regime of treatment
Namely, technologies such as chemical Jehaiogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

These data consist of many t'ul! -scale treatment studies conducted at Supertund sites. Many of the ex-situ remediation
studies met the son treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 °'r> reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-OQ8 or
PB97-177554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-T7562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1; Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (21 Remedia-tion Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995: (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937. March 1995: (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (5) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

5'Namely, technologies such as chemical dehalogenation. air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

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objectives. (EPA1998d. EPA 1998a) Based on these findings. EPA is not persuaded by the
commenter's recommendation that the proposed mass based thresholds are adopted for the
purpose of analyzing what available treatment data may be suitable tor rulemaking.

In this rulemaking. given the variability of hazardous soils (in terms of soil textures.
concentrations and numbers of hazardous constituents and soil matrices), plus the special
considerations of facilitating treatment during remediations, the Agency is
adopting treatment standards from the zone of reasonable values which could be
permissibly selected based upon the performance data. Thus, the data are not being used
so much to establish a precise performance level as to confirm the typical achievability of
the promulgated standards, i.e., ten times UTS or 90% reduction.

Also. EPA is not persuaded by the arguments emphasizing that "innovative technologies."
(i.e.. non-combustion technologies) identified by EPA are still in their infancy.
There is a wealth information describing the field experience drawn from the operation of
non-combustion technologies that span over the past nine to thirteen years. :: In fact.
engineering feasibility studies are an integral part of remediation activities that facilitates the
reduction of uncertainties with regard to the feasability of designing full-scale operations of
one. two. or more non-combustion treatment trains that are capable of meeting the treatment
standards established today. For instance, a wealth of literature has been published on the
operation, design, and field implementation of these non-combustion technologies (EPA
1998d and the Administrative Record for Best Management Practices): and many
universities teach courses today on the operation and design of soil remediation technologies.
Clearly, the availability of know-how is an instrumental asset for facilities to reduce
uncertainties with the design, operation, and implementation of noncombustion technology
trains. Adequate site characterization of contaminants, soil texture distributions (profiles).
and other soil characteristics can enable the use of sound engineering principles and process
engineering to advert or manage potential soil matrix interferences and thus, meet the
treatment objectives set by today's standards. (EPA1998d. see Chapter 2 in EPA 1994. and
1995 and 1997 Superfund remediation studies of full-scale ex-situ processes.)
'B. Treatability Data Request

1. General Comments

In its preamble discussion at page 48,130, EPA requested additional data with regard to the
treatment of hazardous soils. At the outset, the Project notes that the greatest shortcoming in the
soil BOAT proposal is the limited database currently available on the performance of innovative
technologies. The analysis of the database and the methodology underlying development of the
proposed BOAT treatment standards suggests that few. if any. innovative technologies could
consistently meet the proposed standards in the real world, so that current thermal technologies
would predominate. However, the Project does provide the following comments with regard to
utilizing certain treatability data to predict the effectiveness of treatment technologies in real-world
52 See pages 9 through 21 document titled: Innovative Treatment Technologies Annual Status Report
(eight Editioni. November 1996. EPA. Washington. DC 20460. lEPA 542-R-96-010.)

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situations.

2. Treatability Test Methods

The Project members are particularly concerned that 85% of the information in the Agency's
treatability data base is derived from bench-scale studies. The data provided on this issue by the
Project membership confirm that performance obtained in bench-scale testing is seldom achieved
in full-scale field operations. For example, one member reports that the shortfall is frequently
such that actual reductions are in the 60%-70% range, notwithstanding much more optimistic
projections from laboratory scale work. Another member reports significant variation even in
bench-scale results, with removals varying from as little as 7% to as much as essentially 100%.
One member reports bench-scale results for a bioremediation process that show chlorinated PAH
reductions from 9% to 90+ % over an initial concentration range of approximately 3,000 mg/'kg to
7, 000 mg/'kg. Conversely, a bench-scale soil solvent washing process yielded better than 99%
removal of aromatic VOCs over an initial concentration range from approximately 50 to 2. 000
mg/kg.

It is clear from the information provided by the RCAP member companies that most of the data
reported in the literature regarding performance of treatment technologies are vendor-generated
bench-scale data not likely to be representative of actual field applications for several reasons: 1)
vendor data often represent the best results for individual constituents from numerous tests, rather
than from contemporaneous performance on all constituents in the matrix; 2) bench-scale tests
often employ equipment very unlike that which would be used in full-scale applications; and 3)
there is an inevitable degradation in performance when moving from carefully controlled lab tests
on small matrix samples to less controllable full-scale field applications addressing the
heterogenous materials typically managed in a remediation project. Many of these deficiencies
appear to be present in the database EPA is using in developing the soil BOAT rule as well, as set
forth in Exhibit D to these comments.

For example, the 90% reduction alternative in the proposal is probably unachievable in the real
world in most instances and could freeze out innovative technologies. Furthermore, the Project
members note with alarm that EPA seems to be endorsing the 90% reduction concept in the HWIR
discussions for contaminated media, notwithstanding our cautions that this course of action is
highly counterproductive to the development and use of innovative technologies. See Exhibit C.
August 19. 1993 Letter to Devereaux Barnes, Director, Permits and State Programs Division.
EPA Office of Solid Waste from Lowell F. Martin, Counsel to the RCRA Corrective Action
Project re: RCRA Corrective Action Project Member Data on "Bright Line" Criteria and
Treatability.

These many variables and the paucity of validated, full-scale data suggest that in the
development of treatment goals for hazardous soils, EPA should start fresh by examining the
available data on a multiple-constituent basis and then assuring adequate consideration of factors
such as projecting to full-scale performance from bench-scale data and taking account of matrix
variability. The Project members recognize that we are not providing significant quantitative data
on the above-described issues. We believe, however, that the reality that a supportable database is
not available on key technical issues warrants a different approach, as set forth below, as EPA
proceeds with rulemaking in this area.
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The Project proposes that EPA use the HWIR process for contaminated media as a means for
developing a high-quality database on innovative technologies. In particular, the Project
encourages the Agency to 1) specify that exhumed hazardous waste material above HWIR ''bright
line" concentrations be treated by designated technologies with specified best management
practices during a 3-5 year interim period, and 2) standardize treatability studies and performance
data collection requirements to build a database on innovative technology performance during that
interim period. At the same time, EPA could use the enhanced database (after the close of the 3-5
year interim period) to establish treatment levels for remediation wastes based on innovative
technologies, if appropriate. We note hopefully that much more innovative technology
performance data appears likely to become available in the next few years, especially if our
proposal for using HWTR to this end is adopted." (RCRA Corrective Action Project, CS2P-
00164)

Response: EPA concurs with the commenter that it is desirable to have larger sample sizes.
generally, when conducting feasibility studies. Also. EPA points out that there are full-scale
data for biotreatment processes (five studies), chemical dechlonnation (one study).
stabilization (three studies), steam stripping (four studies), and thermal desorption (six
studies) in the soil data base. (See Appendix D in EPA 1998a.) The bench- and pilot- scale
data for these full-scale processes in the soil data base further corroborate the
feasibility for transferring the proposed treatment standards. However. EPA has .found that
regardless of the sample size being examined, the extrapolation of bench-/pilot-scale data to
the scaling of full-scale operations is often an empirical and site specific process that
require the exercise of good engineering judgement and the conduction of trial and error
operations. Other consulted treatability studies (EPA 1998a. EPA 1988d, EPA 1994)
show that full-scale ex-situ processes:53 such as those supporting the treatment
standards being promulgated today, can be engineered and optimized to meet a pre-
determined regime of treatment objectives. (EPA1998d, EPA 1998a.) EPA has also found
that the treatment performance ranges attained by the treatability studies in the soil data base
meet are congruent with those reported in other consulted literature including
literature that describe full-scale operations. (See Chapter 3 in EPA1998a. cited
references in EPA 1998d. and ex-situ treatment studies in 1995 and 1997 Superfund
treatability studies.54 and other literature cited below. ) Further, the soil data base describe
the treatment of difficult-to-treat soil textures and difficult-to treat admixtures of hazardous
constituents/multiple-contaminants (see Appendix D in EPA 1998aandEPA 1998d). In
Namely, technologies such as chemical dehalogenation, air/steam stripping, biotreatment. thermal desorption.
chemical/solvent extraction, and soil washing.

These data consist of many full -scale treatment studies conducted at Supertund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants prior to
disposal. See 1997 studies: (1) Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-008 or
PB97-177554: (2~i Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-H7562: (31 Analysis ot'Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (I i Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desorption. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995; (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-1R2937. March 1995: (41 Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and 15) Remediation Case Studies: Groundvvater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.

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all cases, at least some of the data shows that the soil standards have been achieved on
difficult-to-treat matrices or soils contaminated with hard-to-treat constituents using full
scale treatment. Based on these findings. EPA is proceeding with the proposed treatment
standards for hazardous soils.

In evaluating what paired data points were suitable as a basis for the Phase IV hazardous
soil treatment standards. EPA did examine for possible bias in the consulted studies and
rejected data points that resulted from operational practices that result from atypically
designed and operated full-scale operations. For example, the Data Summary Form (DSF)
Number 76 A. biotreatment. was rejected because the treatment batch test involved a bed
that was tilled daily and continuously aerated. Clearly. DSF Number 76 A is an atypical
practice of full scale biotreatment process operation. A full scale operation may involve.
instead, the aeration of soils twice a week. See Chapter 5 of the BOAT Background
Document for Hazardous Soil. August 1993. for a discussion of the catena EPA adopted for
the review and evaluation of the available data in this docket. Also, see EPA's findings on
these data review and evaluation can be found in administrative
record. For example, see EPA 1993a.

Other consulted treatabiiity studies/literature (EPA 1998a. EPA 1988d. EPA 1994) show
that ex-situ processes-"-; such as those supporting the treatment standards being promulgated
today, can be engineered and optimized to meet a pre-determined regime of treatment
objectives. (EPA1998A EPA 1998a) Based on these findings. EPA is not persuaded by the
commenter's recommendation that the proposed mass based thresholds are adopted for the
purpose of analyzing what available treatment data may be suitable for rulemaking.

In this rulemaking, given the variability of hazardous soils (in terms of soil textures,
concentrations and numbers of hazardous constituents and soil matrices), plus the special
considerations of facilitating treatment during remediations. the Agency is
adopting treatment standards from the zone of reasonable values which could be
permissibly selected based upon the performance data. Thus, the data are not being used
so much to establish a precise performance level as to confirm the typical
achievability of the promulgated standards, i.e.. ten times UTS or 90% reduction.

EPA disagrees with the commenter that non-combustion (i.e.. "innovative") technologies
considered by EPA cannot support the establishment of treatment standards. Nor is EPA
persuaded by the proposed approach that an interim teasing program shall be established
until more full-scale operations are in place. (EPA1998a. EPA 1998d. EPA 1995. and EPA
1994.) Corroborative data also demonstrate that full-scale operation of soil washing and
vitrification processes can meet the treatment standards for hazardous soils.
(EPA I995a (soil washing), EPA 1995b (soil washing), and EPA 1997b (vitrifica tion).
However, if a soil treatment standard proves unachievable for a particular soil matrix
using one of the technologies on which the standard is based, and that the technology or
appropriate technology train is properly designed and operated, then a treatment variance
could be issued under the unachievable prong of the 40 CFR § 268.44 (h). There is no
Namely, technologies such as chemical dehalogenation. air/steam stopping, biotreatment. thermal desorpuon.
Chemical/solvent extraction, and soil washing.

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requirement that the soil be treated by combustion to achieve the treatment standard.

References:

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled:"Derivarion of Treatment Achievabiiity Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita Chow of EPA Office of
Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition, Department of Defense/EPA Environmental Technology Council,
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology fBDAT) Background
Document for Hazardous Soil. Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development, Washington, D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1993b, March 1993. Technology' Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1995a, November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162, EPA 540/R-95/128, or NTIS: PB 95-963410.
5.F.4 Bioremediation

"RETEC does not agree with EPA's contention that "Analysis of the available soil treatability data
has revealed that innovative technologies (e.g.. thermal desorption. biological treatment.
dechlorination) can generally achieve the universal treatment standards proposed today." Section 4
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of our comments provides information to support our position that bioremediation can not achieve
the hazardous soil standards identified in the proposed rule. " 'RETEC. CS2P-00026)

Response: The commenter believes that EPA's proposed treatment standards for hazardous soils have
not yet been demonstrated for any soils in practice.

EPA disagrees with this comment.

First, the treatment data supporting the proposed rule clearly show and support EPA's
determination that several non-combustion technologies can meet the proposed limits for
organic and metal constituents found in hazardous soils, or 10 x UTS levels, or the 90%
reduction in the total or teachable concentration of hazardous constituents present in
hazardous soils. (See preamble in Phase IV final rule; EPA 1998a; EPA 1998 b; EPA
1998c: and EPA 1998d). For instance. EPA collected over 6.000 paired data points
describing the treatment of various hazardous soils. In response to an outgrowth of the
comments. EPA has retained 2.143 paired non-combustion data points to set today's
treatment standards. EPA believes that these 2.143 paired non-combustion data points are
reasonably sufficient to adequately describe the treatment of metal, organics. and multiple
metal and organic contaminants that are frequently found at different type of sites, including
both Superfund and RCRA sues. (EPA1998a. EPA 1998b. EPA I998c. EPA 1998d. and "
EPA 1994.) For example, the SDB has treatment data on soils with varying textures
including top soils, silty/loam soils, and clay soils. (EPA 1998a) Furthermore. EPA has a
number of bench and pilot studies on the treatment of contaminated soils from wood
preserving, petroleum refining, and electroplating sites, which contain a wide range of
constituents such as polynuciear aromatic, phenolic, chlorinated organics, spent solvents,
creosote, and metals. (EPA 1998a) These constituents are found at other RCRA and
Superfund sites. (EPA 1993a)

Second, full-scale data on non-combustion technologies, published in 1995 and 1997.
show that ex-situ chemical and energy intensive remediation technologies applied to
Superfund sites can be engineered and optimized, generally, to meet pre-designed
remediation treatment objectives. In many instances, ex-situ processes were able to meet a
90 % reduction of hazardous constituents in soils or the 10 times UTS limit. (EPA
1998al EPA refers to these data as the Superfund full scale 1995 and 1997 data
studies.56
These data consist of many lull -scale treatment studies conducted at Superfund sites. Many of the ex-situ remediation
studies met the soil treatment objectives sought by their Record of Decision. Such treatment objective, in many instances, also met
the proposed treatment limit of 10 times UTS for soils or the 90 % reduction in the concentration of hazardous contaminants pnor to
disposal. See 1997 studies: (11 Remediation Case Studies: Bioremediation and Vitrification. July 1997. EPA 542-R-97-008 or
PB97-n?554: (2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009
or NTIS PB97-177562: (31 Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007. See
1995 studies: (1) Abstracts of Remediation Case Studies. EPA-542-R-95-001. March 1995: (2) Remedia-tion Case Studies: Thermal
Desortition. Soil Washing, and In situ Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995; (3) Remediation Case
Studies: Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-I8293". March 1995: (4) Remediation Case Studies: Bio
remediation. EPA-542-R-95-002 or NTIS: PB95-182911. March 1995: and (51) Remediation Case Studies: Groundwater Treatment.
EPA-542-R-95-003 or NTIS: PB95-182929. March 1995.
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Third, other pilot- and full-scale data supporting the development of Superfund Presumptive
Remedy guidance documents for wood preserving sites also support EPA's
proposed treatment standards. In particular, thermal desorption was able to attain
concentrations and concentration reduction levels meeting the treatment limits established by
this rule. (EPA 1993b. EPA 1995a. and EPA 1997a.)

This is an expected result since ex-situ soil remediation technologies such as stabilization.
soil washing, dechlonnation. and chemical extraction are more amenable to optimization.
(EPA 1994) One way to optimize these technologies is to rely on physical and chemical
technologies that enable the chemical/physical treatment of soil properties or the
homogenization of soils. (EPA 1998d. EPA 1994).
References:
EPA I998a. Soil Data Analysis: Soil Treatabilitv Analysis ot'Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF )

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic Functional
Groups and Tvpes of Compounds." April 1998. from Jose E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c. memorandum titled:"Additional Information on Treatability of Contaminated Soils as
Discussed in Section VIT.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council.
(EPA542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1997a, October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.
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EPA 1995. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Tr
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS. PB 95-963410.
• "Bioremediation has demonstrated its success in protecting human health and the environment at
many Superfund and RCRA sites. Therefore we are pleased by EPA's desire to encourage the use of
alternative treatment technologies to establish treatment standards for hazardous soils.

However, it appears that the hazardous soil treatment standards proposed will limit the future use of
bioremediation at many sites. An explanation of some of the constraints of bioremediation may
prove helpful in modifying the proposed land disposal restnction program to achieve all of EPA's
goals and objectives." (RETEC. CS2P-00026) GREEN TAB

Response: With regard to the treatment performance of biological treatment processes, the soil data
base shows that this technology is among the most soil and constituent specific treatment
technologies available for the treatment of hazardous soils. The technology will perform
best in many compounds that are water soluble, amenable to volatilization, and amenable to
co-metabolization. (EPA 1993a. EPA 1998a. EPA 1998c. and cited academic literature in
EPA 1998d.) For instance, many soluble and slightly soluble compounds can be treated to
the regime of concentrations established today. The soil data base also shows that
Pentachlorophenols and less soluble Polyaromatic hydrocarbons such as PNA's with four or
more rings are resistant or recalcitrant to biodegradation processes. The data discussed
above also show that threshold concentrations of chlorinated pesticides may inhibit the
bioremediation of chlorinated pesticides. PCPs and four to five ring PNAs biodegrade at
much slower rates or attain an average treatment performance reduction range from 35 % to
70% which falls short from the 90% treatment regime established today. These recalcitrant
constituents may require additional treatment by another technology train such as chemical
dechlonnation (PCP and chlorinated organics). solvent extraction (PNAs. PCP. and
chlorinated pesticides), and thermal desorption (PNAs, PCP. and chlorinated pesticides).
EPA's findings with regard to the performance of bioremediation treatment processes (EPA
1993. EPA 1998a. and EPA 1998b) are quite congruent with other bench-.
pilot-, and full-scale operation of bioremediation processes (EPA1998a. EPA
1998d. HWTC 1993. and EPA 1994).

EPA has determined, therefore, that the biotreatment performance data in the soil data base
is viable for rulemaking for a limited set of hazardous contaminants. The treatment
performance of bioremediation processes becomes inferior for insoluble compounds and
heavily chlorinated organics. As a result, the technology may be inappropriate for some of
these recalcitrant constituents.

Although EPA prefers, generally, to rely on full scale studies for the purpose of developing
and promulgating treatment standards, and this is true with respect to the soil
treatment standards as well. However, in this case as well as in many prior LDR treatment
standard efforts. EPA's data base includes more than just full scale data upon which
EPA can properly rely. Bench and pilot scale technologies can be appropriately
considered by EPA (and EPA has historically done so) in setting treatment limits as long
as full scale operations of the treatment system under consideration exist or have been
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demonstrated on wastes/soils.

Furthermore, in this ruiemaking. given the variability of hazardous soils (in terms of soil
textures, concentrations and numbers of hazardous constituents and soil matrices), plus the
special considerations of facilitating treatment during remediations. the Agency is adopting
treatment standards from the zone of reasonable values which could be permissibly selected
based upon the performance data. Thus, the data are not being used so much to establish a
precise performance level as to confirm the typical achievability of the promulgated
standards, i.e.. ten times UTS or 90% reduction.
References:
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievability Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatability of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble." April 1998, from Jos6 E. Labiosa and
Rita Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998, from Jose"
E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

EPA 1993a. August 1993, Final/Proposed Best Demonstrated Available Technology (BDAT1 Background
Document for Hazardous Soil. Office of Solid Waste, Arlington. Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development, Washington. D.C., 20460.
(EPA/ 625/R-97/009)

EPA 1993b. March 1993, Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA I995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.
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• "Under section 3004(m) of HSWA. EPA is mandated to identity the Best Demonstrated Available
Technologies to be used prior to land disposal. The legislation does not prescribe on what basis
EPA must make this determination. RETEC proposes that EPA use bioavailability as the measure
of treatment efficiency. Bioavailability would be measured as leachable extract. When
bioremediation performance is compared to the performance of incineration to remove the
leachable constituents, both technologies are equal. Both incineration and bioremediation remove
more than 99% of the leachable contaminants." fRETEC. CS2P-00026)

Response: EPA is not persuaded by this comment.

The TCLP test method is an inappropriate performance indicator for the removal or
destruction of hazardous organics. The legislative history to section 3004(m) -- in
particularly Senator Chaffee's floor statements-- makes it clear that hazardous organic
constituents are typically to be destroyed. This issue was settled in the Phase II final rule.
See Response to Comments Document with regard to treatment standards applicable to
PNAs in petroleum sludges.
• "EPA has historically expressed serious concern for basing treatment standards for organics on
stabilization technology. Leachable extract standards could obviously be achieved with
bioremediation. In addition leachable extract standards could be achieved by stabilization
technologies. EPA has expressed concern about stabilization as a treatment technology. EPA
maintains that stabilization has not been demonstrated to be effective in containing organics for
extended periods of time.

This problem could be resolved by combining a treatment requirement that would incorporate a
reduction in leachable extract and total constituent analysis. One possible approach would be to
promulgate a rule with a leachable extract treatment option that would mandate a 95% reduction in
leachable extract and a 40% reduction in total constituent analysis. This insures that significant
treatment had occurred and that the material had not only been stabilized. Stabilization
technologies could not achieve the combination treatment standard for both bioavailable and
constituent analysis." (RETEC. CS2P-00026)

Response: This issue is moot since EPA is not setting treatment standards for organics that
are based on the treatment performance of chemical stabilization/solidification
technologies. Although EPA may allow the chemical stabilization of organics,
under very limited circumstances in a treatment variance context (which
circumstances are not altogether clear would be highly fact dependent), the
current policy apply to chemically stabilized/solidified soils contaminated with
organics still require the measurement of organics by total constituent analysis, as
measured by methylene leachate extracts or other appropriate solvents. ** EPA
notes, however, that it is permissible to drive off organics during the stabilization
process if the organics are captured and properly treated. For example, by using
stabilization which are equipped and comply with 40 CFR § 264 (or 265) Subpart
CC air emission controls.
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• :'Leachable extract tests require more expensive analytical tests.

RETEC's proposal does not mandate the use of the leachable extract tests. The total constituent
analysis approach using the universal treatment standards would still be available to the regulated
community." (RETEC, CS2P-00026)

Response: EPA proposed treatment standards for hazardous organics are expressed in mg/kg (as
measured by total constituent analysis) based on the treatment performance of
bioremediation, chemical/solvent extraction, thermal desorption. and steam/air stripping.
EPA is promulgating these treatment standards.

• GREEN TAB (CS2P-00026.C)

5.F.5 Solidification/Stabilization

• "With respect to hazardous soils. Heritage believes the Agency should allow the use of stabilization
for treatment of contaminated soil matrices with both organic and inorganic contamination.
provided the stabilized soils are disposed of in an MTR (double lined I RCRA Subtitle C permitted
unit." (Heritage Environmental Services Inc., CS2P-00103)

Response: EPA reads the comment to say that organics should be treated by stabilization, not
removal or destruction. EPA disagrees. Section 3004(m) generally requires destruction
of hazardous constituents. See floor statement of Senator Chaffee. Moreover, the
suggestion that this normal requirement be mitigated by Subtitle C disposal of residues is
misplaced. Treatment which minimizes threats is to occur before land disposal . API. 906
F.2d 726.

To set out in detail to the comment of Chemical Waste Management, however, the rules
do not forbid stabilization of wastes containing organic hazardous constituents. If the
process drives off organics and properly captures and destroys the volatile emissions, this
could be permissible. It is also possibly conceivable that combustion treatment of a waste
would be inappropriate under some circumstances, in which case a treatment variance
based on stabilization might be justified.
• "I. Stabilization of Organics

EPA requests comments on whether stabilization is appropriate for hazardous organic constituents
in soil. This is yet another example of relaxing BOAT. It has long been the position of both
Congress and EPA in developing the LDR Program that organic hazardous constituents must be
destroyed or recovered, but not simply stabilized or immobilized and disposed. The HWTC
opposes this recent proposal for stabilization of even low level organic contamination in soil, as the
intent of the LDR statue is to ensure that hazardous organic constituents are truly treated and not
simply diluted." (Hazardous Waste Treatment Council, CS2P-00060)

Response: EPA generally agrees. See response to comment of Chemical Waste Management. Inc.

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number PH4P-00048.

• 'The HWTC opposes the proposal to allow stabilization of organics. which EPA's own data shows
is an oxymoron. Organics must be destroyed, not diluted with "stabilizers' that do not stabilize the
organics." fHWTC,~CS2P-00060)

Response: EPA agrees that "stabilization" of organics could easily be impermissible dilution. See
response to comment of Chemical Waste Management. Inc. number PH4P-00048.
• ''On March 15, USPCI submitted comments concerning the referenced proposal. Our comments
contained a summary document describing our evaluation of the effectiveness of stabilization to
treat organic constituents in petroleum refining wastes. We also indicated that we would provide
comprehensive QA/QC data under separate cover. This information is contained in the enclosed
volumes.

As we suggested in our comments, we believe that specialized reagents can be effectively used to
properly treat organic constituents in soils and other wastes. The study data provided generally
shows substantially reductions in measuraDle organics can be obtained by such means. It is also
our view that organic stabilization is only appropriate when the stabilized waste is then properly
disposed in a secure Subtitle C land disposal unit meeting minimum technology requirements."
(USPCI, CS2P-L0005)

Response: EPA has addressed this comment in the Phase II proposal. Because the commenter
asserted a claim of RCRA Confidential Business Information with regard to the submitted
proprietary process, no further discussion of these data is provided here. However, EPA
found that the submitted treatment data by USPCI was not sufficient to arrive to a
determination that the proposed proprietary chemical stabilization process can be
construed as a permissible treatment within the context of RCRA 3004 (m).
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• "Soils are Among the Easiest Wastes to Treat and There is No Need Engage in Arbitrary
Relaxation of Standards

True soils are among the easiest wastes to treat using non-combustion methods. USPCI facilities
treating soils containing metals have found these soils to be readily susceptible to stabilization using
traditional reagent mixes. Treatment failures necessitating re-treatment for metals are rare for soil
waste streams. There is no conceivable public-health consideration that would justify relaxed
standards for a waste that can readily be treated using the most-accepted and available treatment
process. To the extent and "innovative" technology cannot meet the existing treatment standards
for soils, we believe that technology is inappropriate.1 We believe that a technology should either
not be used or comprise only an element in a proper treatment train.

USPCI's experience also indicates that organic constituents in soils at typical low to moderate
concentrations are often amenable to destruction by chemical oxidants (e.g. hypochlorite.
permanganates) to the meet current treatment standards. USPCI's operating companies often
utilize these methods. Thus, there is no need for to adopt some arbitrary multiplier to ensure that
a soil will never fail to meet the standard." (USPCI, CS2P-00171)

Response: EPA disagrees that hazardous soils are among the easiest streams to treat by stabilization.
Treatment data showing that the existing treatment standards may not be attainable by
treatment standards established in the 40 CFR §268.48 are provided in Appendix D of EPA
1998a. Also, there are other published literature discussing a wide spectrum of problems
that may anse during the stabilization of hazardous soils. See EPA I993a: EPA 1998a; EPA
1995a:EPA 1994; and EPA 1988.
References:

EPA 1998a. Soil Data Analysis: Soil Treatability Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1995a. July 1995. Contaminants and Remedial Options at Selected Metal-Contaminated Sites. Office
of Research and Development. Washington. D. C. (EPA/540/R-95/5 12 or NTIS: PB95-271961)

EPA 1994. October 1994. Remediation Technologies: Screening Matrix and Reference guide. Second
Edition. Department of Defense/EPA Environmental Technology Council. (EPA 542/B-94/013 or NTIS: PB
95-104 182)

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)

EPA 1988. September 1988. Technology Screening Guide for Treatment of CERCLA Soils and Sludges.
Office of Solid Waste and Emergency Response. Washington. D. C. EPA 540/2-88/004.
"EPA discusses stabilization as typically not being considered an effective treatment technology for

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orgamcs.

In the discussion on page 48125 of the FR subject proposed rule. EPA discusses the problems
encountered when soil matrices contain metal concentrations of concern while containing very low
organic concentrations that are only slightly above the UTS. Westinghouse supports EPA's
contention in this discussion that stabilization would be considered effective treatment given this
circumstance. Westinghouse also supports this contention for non-soil wastes. As described in
earlier comment packages on the Advance Notice of Proposed Rulemaking (ANPRM) for
Contaminated Soil and Newly Listed and Identified Wastes and the Interim Final Rule for Ignitable
and Corrosive Wastes. Hanford tank wastes can be characterized as just such a matrix. For these
wastes, radiological constituents constitute the greatest risk to human health and the environment.
The hazards imposed by the organics, from the limited data available, are inconsequential relative
to the other hazards. In situations like this. EPA should allow for the use of stabilization as an
appropriate treatment technology for the waste matrix as a whole." (Westinghouse Electric Corp.,
CS2P-00115)

Response: This comment is either too general or too specific (Hanford wastes) to be responded to
definitely. It may be that given risks posed by mixed wastes, stabilization might be most
appropriate technology. However, if so. a treatability variance is the proper forum to
seek to resolve this difficult and highly fact specific question.

• "Treatment of Hazardous Soils by Stabilization Technology Will Not Include Reducing Hazardous
Constituent Concentrations to the Levels Proposed by EPA

Although the discussion of alternate treatment technologies for hazardous soils will be
addressed in detail in subsequent comments, EPA's proposed rule raises a threshold concern.
EPA notes that TCLP hazardous soils will continue to be managed by stabilization or combustion.
EPA further notes that after a Final Rule is promulgated "... facilities must treat the wastes to meet
the treatment standard for the TC waste- including standards for any underlying hazardous
constituents-prior to land disposal." (58 FR 48114.)

Where the treatment method is stabilization, technically, no reduction in the amount of toxic
constituents occurs, but the waste is less teachable and is. therefore, less toxic. Consequently, the
waste still meets the RCRA section 3004(m) standard because treatment by stabilization
"substantially reduces the likelihood of migration of hazardous constituents from the waste." EPA
must clarify that treatment of TCLP wastes by stabilization technology precludes the necessity of
treating the waste to reduce both the hazardous characteristic constituent level and any underlying
hazardous constituent concentrations to the levels proposed by EPA." (Demetriou, Del Guergio,
Springer & Mover, CS2P-00129)

Response: See other responses to comment on this issue, in particular, response to Chemical Waste
Management, Inc. number PH4P-00048.
5.F.6 Incineration

"On page 48096, section E, Soil Contaminated with Hazardous Waste, the FR states that. "The

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numerical treatment standards for many of these hazardous wastes when they are not found in the
soil matrix is based on the performance of incineration, a technology' not uniformly appropriate for
hazardous soil." The U.S EPA begins talking about the origin of the standard (incineration). 'Jien
says that the technology may or may not be appropriate for hazardous soil then concludes that.
"therefore, [the Agency} is proposing these alternative treatment standards for hazardous soil
based on performance of technologies more appropriate for soil treatment." There is no
cause/effect logic as to whether or when the standard is appropriate, or why or when other
technologies are more appropriate. The basis for changing technologies and or standards in the
FR argument seems flawed or incomplete." (Association of State and Territorial Solid Waste
Management Officials, CS2P-0009n

Response: For soil contaminated with organic constituents. EPA has noted mam- times that.
notwithstanding the fact that such soils can be burned, it is generally unsuitable or
impractical from a technical standpoint to burn large volumes of mildly contaminated soil.
See. For example. 55 FR at 8760 and 8761 (March 8. 1990) and 61 FR 18806-18808 (April
29. 1996). In addition, the Agency has documented potential difficulties that may arise from
the combustion of soil due to soil/contaminant characteristics that affect incineration
performance such as the concentrations of volatile metals, the presence of alkali salts, fine
particles of soils such as clays and silts, and the ash fusion point of the contaminating waste.
For example, operation of an incinerator at or near the waste ash fusion temperature can
cause melting and agglomeration of inorganic salts: the loading of clays and silts in some
soils may also result in high loadings of paniculate matter in flue gases. Proposed BOAT
Background Document for Hazardous Soils. August 1993 and Technology Screening
Guide for Treatment ofCERCLA Soils and Sludges. EPA 540/2-88/004. September 1988.

• "With reference to part E. Soil Treatment Database. section 3. Analysis of the Database, para, a.
Incineration of innovative technologies, we feel the Agency is remiss in the "common sense
approach" for granting incineration practicality "only for 'hot spots' where soil is highly
contaminated with organic constituents." We feel this statement does not go far enough to promote
the possibility that technology may exist, for which the Agency has no current data, to effectively
and efficiently handle such "hot spots". Incineration should be an ''action of last resort", which
would be utilized by exception, not by rule. In light of this, preference should be granted to those
technologies that are effective in achieving the universal standards and are least threatening to in
operation. This would make the best remediation technology the easiest to implement. As new
technologies are brought to the forefront, an elimination of relatively harmful remediation
technologies such as incineration should follow." (Biogenesis Enterprises Inc., CS2P-00180)

Response: The treatment standards promulgated today for hazardous soils are based on the
performance of non-combustion technologies.

Since soil treatment is generally matrix dependent, the exact treatment technology which
might be applied to any given contaminated soil will depend on the specific properties of the
soil and the hazardous constituents of concern. Choices about which soil treatment
technology to apply should be informed by appropriate use of bench and pilot scale studies
and good engineering judgement. EPA acknowledges that the treatment efficiency necessary
to achieve the soil treatment standards will depend on. among other things, the initial
concentrations of hazardous constituents in any given contaminated soil. Thus, not all soil
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treatment technologies will be capable of treating every contaminated soil to meet the
standards adopted in this rule. Hcnvever. the Agency finds that the standards typically can
be achieved by thermal desorption. even in the case of hard-to-treat hazardous constituents
such as dioxins and furans. polychlorinated biphenvls. and polynuclear aromatics.

"Data Relied on by the EPA Suggests That no Departure From Protective Standards is Warranted
for Soils and the EPA Should Avoid Undermining the BOAT Methodology by Selecting an
Arbitrary Multiplier or Percent Reduction Standard

Although, USPCI does not have substantial data concerning the treatment efficiency of the so-
called innovative technologies, we believe that these technologies may in some cases be more
efficient than USPCI's chemical processes. If USPCI can meet current treatment levels for a wide
range of soils, these other technologies should be able to meet existing standards for a wider range
of soils. Moreover, the EPA's own data indicates that no multiplication factor or floating
treatment standard is needed to ensure that most soils are treated to meet environmentally
protective standards. EPA states directly that "treatability data has revealed that innovative
technologies... can generally achieve the universal standards...1 We are perplexed that, despite
this finding, the EPA goes on to argue that the treatment standards are not appropriate and must be
relaxed.

In reaching this startling conclusion, the EPA completely inverts the current method for dealing
with problematic wastes and constituents. We assume that when the Agency states that "[i]n
several cases non-combustion does not achieve the universal standards," tie reference reflects
treatability data in the EPA's possession tending to show that particular constituent can not be
treated to. the UTS level using any of the so-called innovative methods.2 Prior to the Proposal, the
Agency's methodology established the minimize threat level as that level providing the greatest
achievable degree of environmental protection. To the extent a technology that the EPA
considered potentially appropriate as BOAT did not achieve that level of treatment for that
constituent, the Agency could follow two paths. First, the Agency could acquire treatability data
to determine the actual treatability of the constituent. In the alternative the Agency could set the
standard at the protective level and address specific treatabiliry problems through the treatability
variance procedures in part 268. We understand that the Agency does not possess sufficient
treatability data to determine actual constituent treatability for each "innovative" technology. In
fact, we agree with the Agency, that its soil treatment database is incomplete and supports
discussion by generalities only.

We disagree, however, that the dearth of data coupled with a few generalized conclusions justifies
the proposed sea-change in the EPA's approach to BDAT standard-setting. That sea-change is
reflected by the EPA's determination, based on almost no data, that a few constituents which may
be difficult to treat in some processes (but not in others?) Provide a basis to abandon the well-
established treatabiliry variance methodology for addressing treatability problems. In our view.
establishing protective treatment standards and addressing the few treatability problems alluded to
by the proposal is far more reasonable than the Proposal methodology. We note that the EPA
claims that "innovative technologies" can meet the UTS standards most of the time. Moreover, it
is not the case that every soil matrix will contain one of these treatability-impaired constituents.
For those soil matrices that do not contain a problem constituent, there is no rational justification
for permitting treatment to less than minimize-threat levels. Because the only justification the
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EPA offers for relaxed standards is the Agency's desire to facilitate use of non-combustion
technologies, and because such technologies can. in these cases, meet combustion-based standards.
the EPA should continue to require treatment to those levels.

In those few cases where constituent treatability is actually a problem, the EPA should continue to
require treatability variances. As the Agency notes throughout the proposal, alternative
technologies have application primarily at superfund sites and large corrective action sites.
Because these sites are already subject to substantial public participation requirements and because
the Agency can grant a non-rulemaking treatability variance using CERCLA resources as part of
the compulsory ROD process, there is no reason for the Agency to avoid the process.

Sound policy dictates maintaining the current approach. Stringent, protective public health
standards will continue to encourage development of better and more "innovative" technologies.
Conversely, applying an arbitrary multiplier to an already achievable standard will freeze
development where it is now. After all, what rational businessmen would invest in research and
development to progress when a federal agency considers a standard that he can meet easily using
technology in hand. In fact, a standard that he can meet easily by downgrading his technology.
No rational businessman would undertake such development.

In sum, we believe that if the Agency does not have data sufficient to make specific determinations
for innovative technologies, soil standards should remain set by incineration at the levels
determined to minimize human health and the environment by application of the best available
technology. Difficult to treat constituents in a process can be adequately addressed through part
268.44 variance procedures. This policy will encourage development of more innovative and
better performing technologies and will assure that the essential public health and environmental
protection goals included in the HSWA are upheld."(USPCI, CS2P-00171)

Response: EPA disagrees with the commenter that EPA lacks sufficient data to make determinations
with regard to the performance of non-combustion technologies and that the treatment of
multiple-constituents is not addressed by the treatment standard. (See preamble discussion
in today's final rule. Section VII. (8). EPA 1998a; and EPA 1998d.)

The need to revise the existing BOAT framework and to establish a separate set of treatment
standards are based on the following findings:

With respect to the remedial context. EPA, the states, and the regulated and environmental
communities have long recognized that application of the current LDR treatment standards
to contaminated soil can be counterproductive. See, for example, "Hazardous Waste:
Remediation Waste Requirements Can Increase the Time and Cost of Cleanups" U.S.
General Accounting Office, GAO/RCED-98-4, October 1997. Application of current
LDRs to contaminated soil often presents remediation project managers with only two
choices: pursue a legal option of capping or treating hazardous contaminated soil in place
thereby avoiding a duty to comply with LDRs. or excavate the soil and treat it to the full
. extent of best demonstrated available technology, usually, for organic constituents.
incineration. EPA has found that this situation often creates an incentive to select remedies
that minimize application of LDRs (e.g., remedies that involve capping or leaving untreated
soil in place) a result obviously not contemplated by Congress in enacting the LDR
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program/" 62 FR at page 64505 - .'.-4506 (Dec. 5. 19971 and 61 FR a: 18808 (April 29.
1996) and other sources cited therein.

Because of the differences between the remedial context (responding to wastes which have
already been released to the environment) and regulation of wastes generated by on-going
industrial process (preventing wastes from being released into the environment). EPA has
rejected the conclusion that treatment standards for soil must be based upon the performance
of the "best" demonstrated available treatment technology in the way the Agency has
historically interpreted these terms. Instead, the Agency has chosen to develop soil treatment
standards that can be achieved using a variety of treatment technologies which achieve
substantial reductions in concentration or mobility of hazardous constituents and are
generally applied to contaminated soils in remedial settings. As EPA has long maintained.
the strong policy considerations that argue for using BOAT as the basis for LDR treatment
standards for hazardous wastes generated by on-going industrial do not apply when
evaluating BOAT in the remedial context. In the remedial context, waste minimization is
not an issue and the additional increment of treatment necessary to achieve BOAT may yield
little if any environmental benefit over other treatment options that adequately protect
human health and the environment. 54 FR 41568 (October 19. 1989). Indeed there is a
legitimate question whether a technology whose use results in foregoing other, substantial
environmental benefits (such as more aggressive, permanent remedies) can be considered a
"best" technology. Portland Cement Association v. Ruckelshaus. 486 F. 2d 375. 385-86 at
n. 42 (D.C. Cir. 1973): Essex Chemical Corp. v. Ruckelshaus, 486 F 2d 427. 439 (D.C.
Cir. 1973). This issue was discussed fully in the April 29. 1996 proposal and in a number of
other EPA documents, for example. 54 FR 41568 (October 19. 1989) and 61 FR at 18808
(April 29. 1996) and other sources cited therein.

The soil treatment standards promulgated today will significantly improve management of
contaminated soil and remediation projects that involve contaminated soil. However, the
Agency emphasizes that today's rule does not resolve the larger, more fundamental issues
associated with application of RCRA Subtitle C to remediation. The Agency maintains that
additional reform is needed to address, more fundamentally, the application of RCRA to all
remediation wastes, including contaminated soil. The Agency will continue to participate in
discussions of potential legislation to promote this additional needed reform. If legislation is
not forthcoming, the Agency may reexamine its approach to remediation waste management.
including the soil treatment standards.

"7.0 COMMERCIAL INCINERATION CAPACITY FOR SOILS
57As discussed in the Apnl 29. 1996 proposal. EPA has. in the past, justified the existing treatment
standards, in part, because they create an incentive to generate less of the affected waste in the first instance.
See. Steel Manufactures Association v. EPA. 27 F.3d 642. 649 (D.C. Cir. 1994). In the remedial context.
the waste is already in existence: therefore waste minimization is not an issue. Thus, application of the
current LDR treatment standards to remediation waste can have the perverse effect of creating an incentive to
avoid "generating7" waste by leaving it in the ground. The Agency believes that the goals of remediation are
better served by more aggressive remedial approaches, such as excavation and management (including some
degree of treatment) of remediation wastes, that generally result in more permanent remedies. Such
approaches should, therefore, be encouraged.

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This section presents the results of the analysis of available capacity for incineration of soils at the
HWTC facilities. Thirteen units reported capacity for soils. Table 7-1 presents the hazardous
waste and all waste available capacity for incineration of soils at HWTC facilities. Table 7-2
presents maximum hazardous waste and maximum all waste available capacity for incineration of
soils at HWTC facilities." (Hazardous Waste Treatment Council, CS2P-00060.F)
GREEN FILE LABEL

Response: The issue of what treatment capacity is available for hazardous soils is moot since the
capacity variance period for most prohibited wastes is long over.

• "OHM offers a range of treatment technologies designed for the on-site treatment of hazardous
chemicals in soil. A brief description of our developed technologies is provided below. More
complete information is provided on one of these technologies, treatment of K001 waste in a
slurry-phase bioreactor in the attached summary.

OHM owns and operates two mobile thermal destruction units. Our Mobile Infrared Incinerator is
designed to operate at a throughout rate of 6-12 tons/hour and to achieve 99.9999% (6-nines)
destruction of organic chemicals in wastes. The system has been used at several sites in the United
State and Canada for the destruction of persistent organics-contaminated soils (primarily PCBs.
one site was a PCP site) and is currently operating at the Cleve Reber Superfund site in Louisiana.
Assuming an average operating rate of 8 tons/hour, continuous operation, and 80% on-line
utilization, the infrared unit can treat approximately 50,000 tons of organic-contaminated soil per
year." (OHM, CS2P-L0007)

Response: EPA notes the comment.

5.F.7 Metal Recovery Technologies

• "1. We must take issue with the stated assumption that:

"Although metal recovery technologies are available, they are not generally applicable to
treating hazardous soils because of the relatively low levels of metal contamination
typically found in the soil (relative to those necessary for economical recovery)."

Pilot trials of MRS Thermal Mercury Removal/Recovery Process have clearly demonstrated the
economic viability of this technology when treating mercury-contaminated soils and its ability to
produce a salable mercury for recycling. The treatment costs involved are well within the range
estimated by the EPA for thermal processes operating, or planned, in other areas." (Mercury
Recovery Services CS2P-00086)

Response: The EPA concurs that physical/chemical separation processes may allow the
homogenization of hazardous soils as well as the separation and subsequent concentration
of metals from hazardous soils. Although the treatment standards for many metals
contained in hazardous soil are based on the treatment performance of stabilization, EPA
has based the treatment standard of mercury on solvent extraction. Further, the existing
treatment standard for mercury in 268.49, may still require the recovery of mercury via
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retorting or a roasting technology. Residues from the retorting /roasting of hazardous
soils may require further treatment if the TCLP levels of these residues is above the 10
times the UTS limit or the applicable leachable level.

• Proposed Approach for Establishing Soil Treatment Standards

9. We must respectfully disagree with the stated assumption that:

Pilot trials of PMET's Physical Separation and Hydrometallurgical Processes have clearly
demonstrated the technical and economic viability of these techniques for removing lead from
lead-contaminated blasting abrasives, soils, and industrial wastes as compared to HTMR
techniques for removing lead from lead-contaminated blasting abrasives, and disposal in landfills.
Although neither of these processes are economically viable for the high volume commercial
production of pig lead from concentrates or battery scrap, both are more economical than HTMR
for eliminating the environmental and health hazards of lead in soils and industrial wastes... the
primary purpose of the regulations in question.'1 (PMET CS2P-00096)

Response: For metal constituents, the UTS may not be achievable in contaminated soil even using
model technologies such as stabilization or high temperature metal recovery. Stabilization
technologies are sensitive to soil characteristics such as the presence of oxidizing agents and
hydrated salts, the distribution of soil particle size and the concentrations of sulfate and
chloride compounds. Various combinations of soil characteristics can impair the
effectiveness or rate of reaction in stabilization technologies. For example, insoluble
materials, such as materials that will pass through a number 200 mesh sieve, can delay
setting and curing during stabilization, or small soil particles can coat larger soil particles
weakening bonds between particles and cement or other reagents. High temperature metal
recovery- technologies may not be appropriate for some contaminated soil given the low
concentrations of metals that might be present in the soil. In addition, clay and silt content in
some soil matrices may add undesired impurities to the metal concentrates or alloys that arc
formed during high temperature metal recovery.

Although EPA has data showing that some soils can be treated to the existing universal
treatment standards for metals using stabilization'3 and high temperature metals recovery.
the Agency continues to believe that tailored soil treatment standards are appropriate for
metal contaminated soil to ensure that the wide variety of soils can be effectively treated to
meet the treatment standards. In addition, the soil treatment standards will have the added
environmental benefit of encouraging greater use of innovative soil treatment technologies
such as soil or enhanced soil (acid) washing. Proposed BDATBackground Document for
Hazardous Soils. August 1993; Technical Resource Document:
Solidification/Stabilization and its Application to Waste Materials. EPA/530/R-93/012.
June 1993; and. Technology Screening Guide for Treatment ofCERCLA Soils and
These soil treatment data have been claimed as confidential business information.

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Sludges. EPA 540/2-88/004. September 1988.

5.F.8 Retorting

• "Unfortunately, as recognized by EPA. retorting capacity is extremely limited and cost prohibitive.
The cost for prototype thermal desorption equipment is $800/cubic yard, with a minimum of a 1000
cubic yards treated at one location. Typically, only 2-3 cubic yards are generated at a mercury
contaminated meter site. These meter sites are usually scattered over a wide geographic area. Thus a
central treatment location is often not a viable option.

Our research suggests that there are not economical commercially demonstrated technologies that
can treat all mercury contaminated soils to below the 0.20 ppm TCLP level. Furthermore. EPA
has not shown a need, based on a risk to human health or the environment, to treat below the 0.20
ppm TCLP. Therefore we urge EPA to adopt Option C with a minimum required treatment to the
present action levels of 0.20 ppm TCLP for mercury contaminated levels. Furthermore, treatment
above these levels should be accepted provided a demonstration is made that there is no significant
risk to human health or the environment." (American Gas Association. CS2P-001651

Response: EPA notes that the statue bars EPA from taking into account economical considerations
when it establishes treatment standards. As with regard to the issue of treating below the
TC characteristic level, this issue was settled in the Third Third final rule. See. also,
Chemical Waste Management. 976 F. 2nd 2, 12-14.

EPA acknowledges that soil metal recovery processes such as soil washing,
chemical/solvent extraction (e.g. heap leaching), retorting, roasting, and thermal
desorption may leave behind soils that can attain a 90% reduction, as measured by total
waste analysis (i.e., mg/kg) but may still be above applicable leachable limits (as
measured by the TCLP). EPA has stated in the preamble that metal removal processes
may comply with a total constituent concentration analysis (i.e., mg/kg).

• "Preliminary GRI research, primarily in the bench-scale and pilot scale stages, indicates that.
depending on the type of soil, it may be difficult to treat below the 0.20 ppm TCLP level using
only soil washing or gravimetric separation. Acid leaching may reduce the total mercury below
the proposed 90 percent target, but its ability to consistently reduce the TCLP below 0.20 ppm for
all soil types has not been demonstrated. This leaves retorting or thermal desorption as the only
technologies and. as EPA recognizes, these technologies are very expensive and extremely
limited. Furthermore, thermal desorption does not lend itself to a central treatment facility
scenario. The use of this process, therefore, is not practical for this application." (Coastal, CS2P-
00172)

Response: EPA acknowledges that soil metal recovery processes such as soil washing,
chemical/solvent extraction (e.g. heap leaching), retorting, roasting, and thermal
desorption may leave behind soils that can attain a 90% reduction, as measured by total
waste analysis (i.e., mg/kg) but may still be above applicable leachable limits (as
measured by the TCLP). EPA has stated in the preamble that metal removal processes
may comply with a total constituent concentration analysis (i.e., mg/kg).
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5.F.9 Biological Treatment/Biodegradation

• "BDAT for Soils

Although not specifically addressed in the proposal, the preamble suggests the proposed BDAT
standards for contaminated soils are based in part on "biological treatment" in land treatment units.
See Appendix A at 58 FR 48152. Insofar as the proposed standards are based on the use of such
units, and/or EPA contemplates using such units for contaminated soils regulated as hazardous
under Subtitle C of RCRA. the approach violates the land disposal restrictions of RCRA. As the
court held in American Petroleum Institute v. EPA. 906 F.2d 729 (D.C. Cir. 1990), land
treatment is a form of land disposal under RCRA. and the statute requires compliance with BDAT
prior to land disposal. Accordingly, placement in a land treatment unit cannot be considered
compliance with the statutory BDAT requirement." (Natural Resources Defense Council, CS2P-
00179)

Response: EPA agrees with the commenter and have done so in the preamble:

"EPA reminds program implementors that, consistent with the rest of the land
disposal restriction program, site-specific determinations that threats are minimized
cannot be based on the potential safety of land disposal units, or engineered
structures such as liners, caps, slum' walls or any other practice occurring after land
disposal. American Petroleum Inst. v. EPA. 906 F.2d 729. 735-36 (D.C. Cir.
1990) (land treatment cannot be considered in determining whether threats posed by
land disposal have been minimized because land treatment is a type of land disposal
and section 3004 (m) requires that threats be minimized before land disposal
occurs): see also S. Rep. No. 284. 98th Cong. 1st sess. at 15. stating that engineered
barriers cannot be considered in assessing no-migration variances because
"[artificial barriers do not provide the assurances necessary to meet the standard."
This means that site-specific minimize threat determinations must be based on the
inherent threats any given contaminated soil would pose. The Agency recognizes
that this will have the effect of precluding site-specific minimize threat variances for
remedies that rely, even in pan. on capping, containment or other physical or
institutional controls. In addition to being compelled by the statute, the Agency
believe this approach is proper, m that it may encourage remedy choices that rely
more predominantly on treatment to permanently and significantly reduce the
concentrations (or mobility) of hazardous constituents in contaminated soil. The
Agency has a strong and longstanding preference for these types of more permanent
remedial approaches. "

However, EPA also notes that in-situ treatment can occur without triggering LDR
requirements given that no—placement of the waste on the land occurs. See preamble
discussion and various remediation guidance documents.

• "In the last 5 years there has also been significant progress in the biological degradation of organic
constituents in non-waste waters. Some of this work has been supported by EPA in the Superfund
clean up program. For example, the Record of Decision for the French Limited site in Harris
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County, Texas (EPA. Region VI). specified in-situ biodegradation of organic chemical-
contaminated sludges and soils as the selected remediation option. Extensive pilot testing of
biodegradation by the principal responsible parties demonstrated the ability of the process to
destroy a wide range of organic contaminants, including polynuclear aromatic hydrocarbons
(PAHs) and polychlorinated biphenyls (PCBs). There is no evidence that EPA reviewed any of
these data for the development of the third standards.

Research on optimal methods for remediation of soil and ground water contaminated by spills or
underground storage tank leaks has also demonstrated the feasibility of biodegradation for
removing organic chemicals from non-waste waters. A technical reference list of key studies that
support biodegradation of organic substances in waste waters and non-waste waters is included in
this report." (CMA, CS2P-0122)

Response: More recent, full-scale data examined by the Agency corroborates our conclusion that the
soil treatment standards can be reliably achieved using a variety of non-combustion
remediation technologies. See ( 1) Remediation Case Studies: Bioremediation and
Vitrification. July 1997. EPA 542-R-97-008 or PB97-177554; (2) Remediation Case
Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-
009orNTIS PB97-177562:and (3) Remediation Case Studies: Bioremediation. March
1995. EPA-542-R-95-002 or NTIS PB95-182911.

The particular study mentioned by the commenter is described in pages 43 through 68, in
Remediation Case Studies: Bioremediation. March 1995. EPA-542-R-95-002 or NTIS
PB95-182911. EPA has addressed this particular comment in the preamble.

• "OHM Remediation Services Corp. (OHM) is presently conducting the full-scale slurry-phase
biological remediation of creosote-contaminated wastes at the Southeastern Wood Preserving
Superfund site in Canton, Mississippi. This site is an abandoned wood preserving facility that was
in operation from 1928 to 1979. The U.S. Environmental Protection Agency (USEPA) initiated
an emergency response action at the site in June 1986, and excavated approximately 10.500 cubic
yards of sludge and contaminated soils from lagoons, treatment facilities and storage areas. The
lagoon material was considered to be bottom sediment and sludge from the treatment of
wastewaters from wood preserving processes using creosote, and was classified as a Resource
Conservation and Recovery Act (RCRA)-listed waste number K001. The excavated materials
were stabilized with kiln dust and stockpiled on-site for further treatment.

Polycyclic aromatic hydrocarbon (PAH)concentration in the stockpiled soil ranged from 8,000
mg/kg dry-weight to 2,500 mg/kg dry-weight for carcinogenic PAHs. Treatment efficiencies
approaching 95 percent were achieved for total PAHs in the slurry-phase biological reactors, with
the majority of the PAH biodegradation occurring in the initial 5 to 10 day of treatment (Jerger,
1993). Three-, four-, and five-ring PAHs were biodegraded 98 to 99 percent, 85 to 95 percent,
and 55 to percent, respectively (Jerger, 1993)." (OHM, CS2P-00124.D)

Response: This full-scale operation is in complete agreement with the findings in EPA's soil data
base with regard to the treatment performance of bioslurry processes. (See EPA 1993a
and EPA 1998a.)
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With regard to the treatment performance of biological treatment processes, the soil data
base shows that this technology is among the most soil and constituent specific
treatment technologies available for the treatment of hazardous soils. The technology will
perform best in many compounds that are water soluble, amenable to volatilization, and
amenable to co-metabolization. (EPA 1993a. EPA 1998a. EPA 1998c. EPA 1994. and
cited academic literature in EPA 1998d.i For instance, many soluble and slightly soluble
compounds can be treated to the regime of concentrations established today. The soil
data base also shows that Pentachlorophenols. less soluble Polyaromatic hydrocarbons
such as PNA's with four or more rings, aromatic chlorinated pesticides, and aromatic
chlorinated pesticides are resistant or recalcitrant to biodegradation processes. PCPs and
four to five ring PNAs biodegrade at much slower rates or attain an average treatment
performance reduction range from 35 % to 70% which falls short from the 90% treatment
regime established today. These recalcitrant constituents may require additional treatment
by another technology train such as chemical dechlorina-tion (e.g., for non-volatile
chlorinated organic pesticides/solvents and oily chlorinated organics such as PCB's and
PCPs) or solvent extraction (high molecular weight PNA's and chlorinated organics).

EPA's findings with regard to the performance of bioremediation treatment processes
(EPA 1993a. EPA 1998a, EPA 1998b. and EPA 1998d) are quite congruent with other
bench-, pilot-, and full-scale operation of bioremediation processes (EPA1998a, EPA
1998d, HWTC 1993, and EPA 1994). EPA has determined, therefore, that the available
biotreatment performance data support the establishment of treatment standards for many
soluble polar organics,volatile aliphatic chlorinated/non-halogenated organics. non-
halogenated aromatic, polar organics such as ketones. alcohols, and low molecular weight
PNA's (two- to four-rings, generally).

EPA 1998b. memorandum titled:"Dcnvation of Treatment Achievability Results for Organic Functional
Groups and Types of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble/' April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other Implementation." April 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)

EPA 1994. October 1994. Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense/EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)
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EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

HWTC 1993. November 1993. Evaluation of Proposed BDAT Soil and Process Treatment Technologies —
Report to the Hazardous Waste Treatment Council. ENSR Consulting and Engineering, Document Number
3393-002.. submitted to EPA by the Hazardous Waste Treatment Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).

• "OHM Remediation Services Corp. is presently conducting the full-scale remediation of creosote-
contaminated wastes at the Southeastern Wood Preserving Superfund site in Canton, Mississippi.
This site is an abandoned wood preserving facility that was in operation from 1928 to 1979. The
U.S. Environmental Protection Agency (EPA) initiated an emergency response action at the site in
June 1986, and excavated approximately 8,000 yd3 (6,100 m3) of sludge and contaminated soil
from lagoons, treatment facilities, and storage areas. The lagoon waste material was considered to
be bottom sediment sludge from the treatment of wastewaters from wood preserving processes
using creosote. This material is Resource Conservation and Recovery Act (RCRA)-listed waste
number K001. The excavated materials were stabilized with kiln dust and stockpiled for
treatment.

Extensive laboratory treatability studies were performed to optimize the kinetics of the biological
process for field pilot-scale testing and full-scale treatment operation. The final system
configuration included a soil classification/washing process that concentrated the contaminants into
a smaller volume of material for slurry reactor treatment and produced a washed soil product."
(OHM, CS2P-00124.D)

Response: EPA has examined this full-scale data within the context of corroborative data supporting
the establishment of treatment standards for hazardous soils. This full-scale demonstration
study was published in the Superfund 1997 study tided: Case Study Abstract: Slurry Phase
Bioremediarion at the Southeastern Wood Preserving Superfund Site. Canton. Mississippi.
pages 76-105, Remediation Case Studies: Bioremediation and Vitrification, Volume 5,
July 1997, (EPA 542-R-97-008 or NTIS: PB97-177554).

• "OHM performs both in situ and ex situ bioremediation using various technologies including land
farming, soil venting, groundwater extraction and ex situ treatment, and bioslurry reactors. In
conjunction with our patented soil vapor extraction technology, we can also perform in situ air

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sparging. OHM is currently working through the SITE program to evaluate the commercial
application of an in situ oxygen delivery system. Microbubble Technology.

Simple technologies such as land farming have essentially limitless capacity but are limited in their
capability to degrade certain waste types. Ex situ soil venting (also presenting essentially unlimited
capacity) is more efficient than land farming but still somewhat limited in terms of treatment
efficiencies. However, OHM has had some success in treating wastes containing low levels of
PAHs with this technology at Wordsmith Air Force Base in Michigan.

The bioremediation technology that appears most effective for difficult to degrade waste materials
(K001, etc) is treatment in bioslurry reactors. Treatment with this technology is somewhat more
capacity limited than land farming or bioventing, as reactor vessels must be constructed, however,
these vessels, similar in design to modular sewage treatment systems, can be constructed fairly
rapidly and although current capacity may be limited (OHM has four 200,000 gallon reactor
vessels), sufficient capacity to treat most wastes requiring this technology could be generated in a
very short time period using modular tanks and off-the-shelf components." (OHM, CS2P-L0007)

Response: OHM's findings with regard to the effectiveness of bioslurry systems on a wide range of
organics and PAH's appear congruent with EPA's findings in the soil data base. See EPA
1993a and EPA 1998a.

References:

EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology1 (BOAT) Background
Document for Hazardous Soil. Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase II, Document Number CS2P-S0599)
"As a result of former industrial activities, many properties across the United States contain
various chemicals in their soils at concentrations above background levels. Polynuclear aromatic
hydrocarbons (PAHs) are often encountered at sites of gas manufacture, wood treating, tar
refining, coke making, and petroleum refining. When the presence of PAHs in site soil is deemed
to create a situation of unacceptable risk to public health or the environment, treatment or disposal
is required to reduce concentrations to acceptable levels.

The ideal remedial process for PAHs in soils would destroy them to an environmentally sound
level at relatively low cost without producing adverse by-products. In many cases bioremediation
can accomplish these goals. The degree to which bioremediation can destroy PAHs in a particular
soil, however, is highly dependent on the characteristics of that soil, including the nature of the
hydrocarbon that is the source of the PAHs.

It is the objective of this article to describe efforts leading to this conclusion and to summarize how
soil characteristics influence bioremediation of PAHs." (Remediation Technologies, CS2P-
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00133.B)

Response: Soils do not need to be treated to reduce hazardous constituents to levels below those of
naturally occurring background levels, under circumstances discussed in the preamble to
the final rule.

• ''If it is EPA's intent to require the application of LDRs to petroleum contaminated-media, then we
believe biological treatment is an ideal site cleanup technology. This is because it is easily
deployed, cost effective, and efficient at removing any potential risk associated with petroleum
contamination. When properly applied, organic compounds are digested leaving only those
compounds deep in the soil pores that are unaccessible to bacteria or any other living thing. We
recommend that biological treatment be defined as a BDAT technology provided that when
applied, the technology achieves a 90% reduction in the teachability of organic compounds or
meets a specific leachate standard to be developed specifically for this technology. This standard
would be an indicator of a well operated biological treatment process and would not be applicable
to other technologies.

The docket comments by RETEC and OHM demonstrate the performance potential of biological
treatment. You will note that the land ban standards designed to evaluate incinerator performance
(not risk) are difficult for biological treatment to attain. The key problem is with high molecular
weight poly nuclear aromatic hydrocarbons (PNAs). PNAs have posed the greatest treatment
challenges as they strongly adsorb into soils making some fraction of them non-leachable and non-
available for digestion by the bacteria." (Chevron. CS2P-00182) [Also see Chapter 27.A.]

Response: Contaminated soils can be treated with non-combustion technologies to achieve the
treatment standards in the final rule. (EPA 1998a, EPA 1998b, EPA 1998c, and EPA
1998d.)

EPA disagrees with the commenter's proposal that a 90% reduction in leachate extract
concentration of organics (as measured by the TCLP). This issue was settled in the Phase
II final rule. See Response to Comments Document on treatment standards for petroleum
refining wastes.

References:

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievabilitv Results for Organic Functional
Groups and T\pes of Compounds." April 1998. from Jose E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous
SoiIs/F-98-2P4F-FFFF.)
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EPA 1998d. Memorandum titled: "Extrapolation ot'Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated Soils and Other implementation." Apni 1998. from Jose
E. Labiosa of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket for Phase FV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1994. October 1994, Remediation Technologies: Screening Matrix and Reference Guide. Second
Edition. Department of Defense; EPA Environmental Technology Council.
(EPA 542/B-94.TU3 or NTIS: PB 95-104 182)
5.F.10 Soil Washing

• 9.0 SOIL WASHING INNOVATIVE TECHNOLOGY DATA

In response to EPA's request for comments on the proposed soil LDR regulations, DuPom has
compiled the attached technical information package supporting Soil Washing as an innovative
technology for remediating contaminated soil. DuPom surveyed EPA. academic and industry
information to identity' vendors with both experience and fundamental soil washing understanding.
The vendor experience information was organized into table detailing bench scale, pilot scale ana •
full scale capability. Understanding of contaminant-soil interactions, physical soil washing and
chemistry needed to remediate contaminated soil was captured during interviews with vendors and
summarized. The overall purpose of this package is to share our data with EP A and to promote
soil washing as an effective and cost effective innovative remediation technology. We will shortly
submit similar packages for low temperature thermal desorption and organics stabilization
technologies.

An effort was made however to screen vendors. Experience, equipment capability, support labs,
staff knowledge and regulatory expertise were factors considered in selecting soil washing vendors
for follow-up interviews. The selected vendors are included in this package.

While determining the current state-of-the-art of soil washing, DuPont confirmed that more
vendors have demonstrated bench and pilot scale experience/capabilities than full scale experience.
Experience with metals and inorganic contaminants is also greater than with organics. We believe
this does not reflect poorly on the capability of the technology to remediate. As the experience
pool for technically and financially favorable soil washing grows, more full scale remediation
experience and data will become available.

DuPont Definition of Soil Washing

For the purpose of this information, DuPont has limited the soil washing review to aqueous based
soil washing only. In all cases, a water based solution is mixed with contaminated soil. Soil is
cleaned and recovered in the process. Contaminated residues and wash water are treated and then
recycled or disposed of. In some cases, surfactants and flocculants are added to the water to
enhance soil particle separation. In other cases, chemical agents such as acids or chelants are used
to promote mass transfer of soil contaminants into the aqueous phase.

Description of Attachments/Enclosures
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This information package is mainly compiled from information obtained from interviews and
discussions with the vendors. In one case DuPont provided a soil sample and funded
leaching/extraction treatability work.

This information package contains the following specific information:

a. Vendor Experience Tables-These tables summarize the following information for selected
vendors:

Vendor-selected vendor that DuPont interviewed

Patent status-patent technology ownership status

Matrix treated-matrix type, with site location (if available)

Contaminant-contaminant of interest in matrix

Performance (concentration (-contaminant concentration in matrix, both before treatment
and after treatment

Throughput- Throughput or processing rate

Scale-Process scale (bench, pilot, or full scale)

Cost- Processing cost ($/ton)

b. Source documentation and data re also available for each selected vendor that was
interviewed by DuPont. This information is summarized and documented in a
'Technology Summary," a DuPont write-up that includes vendor contacts, process
description and application information and process costs. Selected vendor literature and
information is also included." (DuPont. CS2P-L0003)

References:
EPA 1995a. July 1995. Contaminants and Remedial Options at Selected Metal-Contaminated Sites. Office
of Research and Development. Washington. D. C. (EPA/540/R-95/512 or NTIS: PB95-271961)

EPA 1995 b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In situ
Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995

• "EPA solicits treatability data and other information relevant to the hazardous soil treatment
standards proposed.
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Environmental Restoration programs for particular DOE sites and the DOE Office of Technology
Development have been preparing treatability test reports and technology status reports (on various
technologies such as heat enhanced soil vapor extraction, bioremediation, in-situ vitrification).
Other studies are in progress but complete data are not yet available (e.g., Westinghouse is
currently conducting pilot-scale soil washing treatability tests on RMW-contaminated soils at the
300 N area at the Hartford site)." (DOE. CS2P-0016T)

References:
EPA 1995a. July 1995. Contaminants and Remedial Options at Selected Metal-Contaminated Sites. Office
of Research and Development. Washington. D. C. (EPA/540/R-95/512 or NTIS: PB95-271961)

EPA 1995 b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In situ
Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995

• "Biogenesis Enterprises. Inc., is a leading, innovative soil washing firm that offers ecologically
sound and effective solutions to industrial contamination problems. Our soil and sediment washing
processes have been successfully demonstrated at a refinery under the U.S.EPA SITE
Demonstration Program in November. 1992 and under Environment Canada's Great Lakes
Cleanup Program at Thunder Bay, Ontario....

We support regulatory review and change when such a change will improve and update technical
knowledge as in the case of health based universal standards proposed in this docket. Moving
away from thermal technologies as the BOAT for all wastes encourages the development and use
of other technologies for remediation. Innovative technologies, such as our soil and sediment
washing units, are developed and enhanced due to a market that encourages such development.
Combustion, as the sole source BOAT, discourages the refinement of potential technologies that
presently achieve safe and effective reduction of contamination to levels that pose no threat to
human health or the environment." (Biogenesis Enterprises. Inc., CS2P-00180) [Also see Chapter
27.A.]

Response: EPA has data on the pilot- and bench-scale operation of soil washing technologies. In
addition to the bench- and pilot-scale data submitted by Dupont and the HWTC (HWTC
1993), the EPA has data from the Superfund 1995 full-scale demonstration operations of
soil washing are feasible including those that can meet the treatment standards established
bv today's final rule. (EPA 1995a. EPA I995b)
References:
EPA 1995a. July 1995. Contaminants and Remedial Options at Selected Metal-Contaminated Sites. Office
of Research and Development. Washington. D. C. (EPA/540/R-95/512 or NTIS: PB95-271961)
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EPA 1995 b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In situ
Vitrification. EPA- 542-R-95-005 orNTIS: PB95-182945. March 1995
5.F.11 Soil Vapor Extraction

• "In-situ treatment of hazardous soils should be encouraged. Soil vapor extraction should be added
to the list of acceptable alternative treatment technologies for hazardous soils. Soils that have been
treated to health based levels should not be hazardous waste. Rather, the treated soils should be
managed in Subtitle D facilities and any residue from treatment should be managed as appropriate
under RCRA. This is analogous to the current regulation of hazardous debris." (Rohm and Haas
Company, CS2P-00114)

Response: EPA agrees that soil vapor extraction should be encouraged. EPA does not agree with the
comment that hazardous media is exempted from Subtitle C requirements. This particular
issue will be addressed in the final HWIR media for hazardous soils.

More recent, full-scale data examined by the Agency corroborates our conclusion that the
soil treatment standards can be reliably achieved using a variety of non-incineration
remediation technologies. (EPA 1997b.EPA 1997c. EPA1995b. and EPA 1995c) For
organic constituents, the soil treatment standards for volatile organic constituents are based
on the performance of biotreatment. chemical extraction, dechlonnation. thermal desorption
or soil vapor extraction. The standards for semivolatile organic constituents are based on
the performance of biotreatment. chemical extraction, dechlonnation. soil washing, thermal
desorption. or soil vapor extraction.

Based on 236 data points. EPA concludes that nonpolar organics treated by soil vapor
extraction can meet, generally, the soil treatment standards established today. Out of 236
data points, 189 show that volatile organics can achieve average treatment efficiencies that
range from 44% to 99.2%. 47 data points show that semivolatile organics can undergo
treatment with treatment efficiencies that range up to 57.2%. These data show that
organics with high Henry's Law constants are more amenable to soil vapor extraction.
The available data also show that the efficiency of the technology drops significantly
(sometimes to the point of ineffectiveness) when treating soils contaminated with aromatic
or cyclical semivolatile organics. (EPA 1998c)
References:
EPA 1997b. July 1997. Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies.
July 1997. EPA'542-R-97-009 or NTIS PB97-177562

EPA 1997c. September 1997. Analysis of Selected Enhancements for Soil Vapor Extraction. September
1997. EPA-542-R-97-007

EPA 1995h Remediation Case Studies- Soil Vapor Extraction . EPA-542-R-95-004 or NTIS: PB95-182937
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EPA 1995c. March 1995. Remediation Case Studies: Groundwater Treatment. EPA-542-R-95-003 or NTIS.
PB95-182929
» "OHM performs soil vapor extraction (SVE) under our existing patent which entails withdrawal
and reinjection of fluids. We have performed several SVE field projects and also have data from
several pilot studies. Our capabilities in SVE are best demonstrated by work at the Sand Creek
Superfund Site in Colorado, where over 120,000 pounds of petroleum materials were removed in
3 months. Our capacity in this technology is currently somewhat limited by having only a small
but rapidly expanding pool of individuals with expertise in SVE and by the availability of
equipment (pumps; treatment systems). However, as for the bioslurry reactors noted above. SVE
systems are constructed using modular parts and off-the-shelf components and sufficient capacity
to treat most wastes amenable to this technology could be generated in a very short period of time.

OHM appreciates the opportunity to comment on these proposed regulations. Thank you for your
consideration of these comments." (OHM Corporation. CS2P-L0007')

Response: EPA notes the comment.
5.F. 12 Data Submitted on Other Innovative Technologies

• "STATEMENT OF INTEREST

The HT-6 process, when operating to recover recyclable oil from hydrocarbon-bearing wastes and
soils, is a reclamation process which does not require a Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C.. Section 6901. etseq.. permit. 40 CFR 261.6(c)(l). Additionally, and due to
the removal and recovery capabilities of the process. RCRA voices a strong preference for HT-6 type
technologies. Seee^, H.R. Rep. No. 198. 98th Cong. 1st Sess. 31.

In excess of 30 million dollars, over the course of the past four years, has been spent in the
commercialization of this innovative technology. The technology was commercialized as a direct
result based on Best Demonstrated Available Technologies (BOAT) demonstrated capabilities. The
results of this commercialization is an innovative technology, the HT-6. which can treat both as
generated wastes and soils to the equivalent capability of incineration without burning the wastes
while concurrently recovering reusable and recyclable oil." (Seaview Thermal Systems. CS2P-
00058)

Response: The new rule will facilitate the use of innovative soil treatment technologies. EPA
recognizes that non-noncombustion technologies are capable of meeting the proposed limits
for organics and metal constituents found in hazardous soils. 10 x UTS levels, or the 90%
reduction in total or teachable concentration of hazardous constituents present in hazardous
soils. Recent, full-scale data examined by EPA corroborates the Agency's conclusion that
the soil treatment standards can be reliably achieved using a variety of non-incineration
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remediation technologies." (Also, see Chapter 3 and 4 in EPA ll)98a)

EPA also recognizes the potential problems and difficulties associated with incineration. It
is generally unsuitable or impractical to burn large volumes of mildly contaminated soil.
See. 55 FR at 8760 and 8761 (March 8. 1990) and 61 FR 18806-18808 (April 29. 1996).
In addition. EPA has documented the difficulties that may arise from the combustion of soil
due to soil-contaminant characteristics that affect incineration performance (e.g..
concentrations of volatile metals, the presence of alkali salts, fine particles of soil such as
clay and silt, and the ash fusion point of the contaminating waste).
Reference:

EPA 1998a. April 1998. Soil Data Analysis: Soil Treatability Analysis of Treatability Data for
Contaminated Soil Treatment Technologies. Office of Solid Waste, Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF )
"STS builds, markets, and operates the HT-6 High Temperature Thermal Distillation process (HT-6)
for the purpose of treating a wide variety of as-generated wastes (such as refinery listed wastes
K048-K052. F037. and F038). as well as contaminated soils (such as PCB. PCP. K087. Dioxm. and
petroleum contaminated soils). The HT-6 process is the functional equivalent to the HT-5 process
which was formerly owned and operated by TD1 Thermal Dynamics.

The HT-5/HT-6 process has successfully operated on a full scale basis for the purpose of achieving
LDR standards on listed wastes K048 through K052. Documentation of the HT-6 capability to
process refinery wastes has previously been submitted to the EPA by TDI on February 20. 1992. and
such documentation is hereby incorporated by reference.

The EPA is requesting additional information regarding the capabilities of innovative technologies.
As noted in Comment Number 1. above, the HT-6 has demonstrated the ability to significantly treat
wastes and soils. This ability is "matrix-independent" and is achieved irrespective of whether or not
the waste is homogeneous or heterogeneous. Additionally, the HT-6 process is recognized by the
hazardous waste industry to be an extremely well operated and well designed treatment process.

Included in Attachment "A" is pilot scaled data on the processing of Manufactured Gas Plant (MGP)
wastes. MGP wastes are extremely heterogeneous and contain significant concentration of poly-
nuclear aromatic hydrocarbons existing in a tar-like matrix. The tar-like wastes are typically mixed
with soils and are analogous to other regulated waste such as K087. K141-145, K147. and K148. As
documented in Attachment "A", the HT-6 process removed a]l the regulated organic constituents
from the contaminated soil to nondetectable concentrations while currently recovering the
hydrocarbons in the recyclable form of oil. This demonstrated ability is an additional example of the
;9 See r 1) Remediation Case Studies: Bioremediation and Vitrification. Julv 1997. EPA 542-R-97-008 or PB97-177554:
(2) Remediation Case Studies: Soil Vapor Extraction and Other In Situ Technologies. July 1997. EPA 542-R-97-009 or NTIS PB97-
177562: (3) Analysis of Selected Enhancements for Soil Vapor Extraction. September 1997. EPA-542-R-97-007:
(4) Remedial Case Studies: Thermal Desorption. Soil Washing, and In Situ Vitrification , March 1995. EPA 542-R-95-005 or NTIS
PB95-182945: (5) Remediation Case Studies: Soil Vapor Extraction. March 1995. EPA-542-R-95-004 or NTIS PB95-182937. and
(6) Remediation Case Studies: Bioremediation. March 1995. EPA-542-R-95-002 or NTIS PB95-182911.

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capabilities of innovative technologies to achieve treatment levels which are significantly lower than
the proposed universal standards and more protective of human health and the environment."
i Seaview Thermal Systems. CS2P-00058)

Response: EPA recognizes that many innovative technologies can provide treatment capable of meeting
the proposed limits for organics and metal constituents found in hazardous soils. 10 \ UTS
levels, or the 90% reduction in total or leachable concentration of hazardous constituents
present in hazardous soils. This conclusion is confirmed in the full scale and pilot scale
testing. EPA also recognizes how soil matrix may interfere with treatment, but believes that
good engineering practices can be employed to meet the treatment objectives set by EPA's
new standards. ('EPA 1998a)

Reference:

• "The RCRA Land Disposal Restriction regulations require certain characteristic and listed hazardous
wastes to meet Best Demonstrated Available Technology (BOAT) treatment standards prior to land
disposal. These treatment standards are based on data from treatment performance tests using
specific hazardous wastes and appropriate BOAT technologies. These treatment standards have also
been determined to be applicable to soil and debris contaminated with these wastes at CERCLA and
RCRA corrective action sites. The EPA has been gathering data on the treatment of contamination
soils and debris (CS&D) associated with a variety of wastes, and will be sampling and collecting
soils from some representative CERCLA sites to perform treatability and treatment performance
testing in order to develop the data bases necessary to support proposed BOAT treatment standards
for contaminated soil and debris.

TDI Services. Inc.. has developed a proprietary high temperature distillation system (HT-5) which
has initially been selected by EPA to be evaluated for treatment of soils contaminated with creosote
i U051 classification) and petroleum refinery wastes (K048-K052 classification). Tom F.
DesOrmeaux has issued the license for operation of the HT-5 to BFI - Thermal Dynamics (BFI-TDV
BFI-TD has conducted initial treatability testing of the HT-5 Thermal Distillation Unit by processing
a simulated refinery waste (Phase I). Follow-on Phase II testing is scheduled to involve treatment
performance testing and residuals analyses of an actual Superfund waste from a yet to be determined
site. BFI-TD has also conducted simultaneous treatability testing of the simulated refinery sludge
utilizing a pilot scale unit (PSU) to simulate HT-5 treatment and will continue to treat the same
feedstock treated in the HT-5. The objective of the PSU testing program is to evaluate the design
equivalency and the ability of the PSU to provide scale-up data correlating to the treatment capability
of the HT-5.

Law Environmental. Inc. has planned, performed and interpreted the environmental analysis of the
initial refinery sludge treatability testing of the HT-5 distillation unit for BFI-Thermal Dvnamics.
Law Environmental will also plan and perform subsequent environmental evaluations for the EPA.
The initial treatability test was performed on a simulated refinery waste prepared by adding Alaskan
crude oil to oil based drilling cuttings to achieve a hydrocarbon content of approximately 15%. The
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test was conducted over a three day period in January 1990. All analytical samples were collected
and analyzed according to an approved Quality Assurance Project Plan. The analytical procedures
used are approved EPA methods. A QA/QC concept beginning with sample collection and ending
with data validation was applied. Feedstock and treated residue samples were collected and analyzed
to demonstrated treatment removal efficiencies and verify residuals contaminant levels for
comparison to current BOAT. Additional analyses were conducted on recovered oils and wastewater
which are by-products of the treatment process. The oil analyses were performed to characterized
them for purposes of recycle/reuse. The wastewater analyses were performed for normal NPDES
discharge parameters even though the wastewater would normally be recycled in a refmer\' setting.
Treated residue contaminant concentrations'in the HT-5 and PSU samples are below land ban
performance parameters listed in the current version (July 1. 1989) 40 CFR Part 268. Subpart D with
the exception of the TCLP nickel. Nickel is a major component of the alloy used to construct the
PSU tray and the HT-5 heating chambers, as is chromium. The TCLP nickel may be due to initial
wearing in the heating chambers and cooling auger. The generally higher total chromium and nickel
contents in the treated residue support this contention. Air emissions data indicate that particulates
are no problem and that no detectable hydrocarbons were present in the flare gas. but is not
completely certain that this test configuration would produce hydrocarbon emissions equivalent to a
normal refinery HT-5 system.

This HT-5 High Distillation Unit treatability test of simulated refinery wastes has produced residuals
which meet the BOAT requirements specified (except TCLP nickel) by the U.S. EPA for refinery
wastes in 40 CFR 268.41 Tables CCWE and CCW. We expect the wearing-in of the system to
eliminate the excess TCLP-nickel criteria. The demonstrated removal efficiency of the HT-5 for
organics is a good indicator for success in removal of contaminants from creosote and other listed
organic wastes in Superfund sites. Results of a PSU treatability test on a soil sample from the Bayou
Bonfouca Superfund site showed no detectable BOAT organic constituents in the treated residue
(Memo to Jerry Vorbach. EPA/OSW from Debra Falatko. Radian Corporation dated December 22.
1989). A treatment performance test for the Bonfouca waste is planned later in 1990 in conjunction
with the EPA and Radian." (BFI-Thermal Dynamics. CS2P-00058.A)
Response: EPA believes that the soil treatment standards will encourage greater use of innovative soil
treatment technologies including technologies focused on the treatment of sludges. See
Technology Screening Guide for Treatment ofCERCLA Soils and Sludges, EPA 540/2-
88/004. September 1988. EPA has also determined that the pilot scale demonstration study
at the Bayou Bonfouca Superfund Site in Louisiana yielded significant information on the
effectiveness of chemical extraction on difficult-to-treat soils. This demonstration study
examined the effectiveness of chemical extraction in treating semivolatile organics from a
creosote treatment works facility where the organics were present in silt loam soils. The
overall average performance efficiency of the RCCs B.E.S.T.'s™ Process was over 99% for
semivolatile with polynuclear aromatics (PNAs) in concentrations up to 1,600 ppm. cresols
up to 160 ppm. and phenol up to 160 ppm. (EPA 1998)

Reference:

a treatabilitv study was performed in order to document the potential of the HT-V Thermal
Distillation System (HT-V) in conjunction with the HT-V Thermal Degradation System to treat a
polychlorinated dioxin contaminated soil and produce nontoxic residue and condensables. Previous
tests (see April 5 report. ("PCB Bench ScaleTreatability Test") have demonstrated that the HT-V is
capable of removal of PCBs from an oily sludge matrix to produce a nontoxic treated residue and
PCB contaminated condensed oil. While toxic component removal is attractive from the standpoint
of waste volume reduction, it is highly desirable to have a stand alone process which can
degrade/dechlorinate PCBs. dioxin and other chlorinated toxic compounds to produce only nontoxic
residue and recoverable products such as oil and water. Such a stand alone process is not currently
available in the waste treatment industry and is in great demand.

Addition of catalyst to enhance degradation/dechlonnation of PCBs. dioxins and other chlorinated
toxic wastes is a feasible design modification to the HT-V process. The addition of the HT-V
Thermal Degradation System can provide this additional capability. Southdown has. therefore.
recently modified the bench scale unit (BSU) used for HT-V treatability testing by the addition of a
high temperature (up to 2100 degrees F) degradation/dechlorination chamber. This modified BSU
was used to test the effect of a catalytic enhancement of degradation/dechlorination of dioxins. The
test was performed by processing a 2378-tetrachlorodibenzodioxm (TCDD) contaminated sludge.

The primary objectives of the test were to:

a. Determine the dioxin destruction/removal efficiency (DRE) for 2378-
tetrachlorodibenzodioxin.
b. Determine if any new regulated toxic compounds (non present in the feed) are synthesized by
the process.

The results of the tests document that:

a. The sweep gas DRE for 2378-TCDD was >99.999577%. no 2378-TCDD was detected in
the treated residue or condensate.
b. There was no significant production of new toxic compounds synthesized by the process.

The results of a thorough data quality validation document that all data is acceptable from a
standpoint of data quality' given the high oil content of the feed samples and the high absorptivity' of
the treated residue due to it's extremely low organic content." (Law Environmental. Inc.. CS2P-
00058.F)

Response: EPA has established technology-based soil treatment standards which can be satisfied using
any treatment method except treatment methods which involve impermissible dilution (e.g.,
addition of volume without destroying, removing or immobilizing hazardous constituents).
One example of a treatment standard that can reliably achieve soil treatment standards is
thermal desorption.
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EPA based its soil treatment standards for some contaminants, in part, on the treatment
capabilities provided by thermal desorption. The soil treatment standards for dioxins and
furans are based on the performance of dechlormation or thermal desorption. The treatment
standards for polychlonnated biphenyls are based on the performance of chemical
extraction, dechlorination. or thermal desorption.

Information within EPA's Soil Treatment Database as corroborated by recent performance
data for non-combustion treatment of remediation wastes, has established that thermal
desorption represents an effective treatment technology. Based on 957 data points, thermal
desorption has been shown to treat a wide range of organics in soils to meet the alternative
hazardous soils treatment standards. Out of these 957 data points. 293 show that volatile
organics can undergo thermal desorption treatment with average treatment efficiencies that
range from 79.2% to 99.9%. 614 data points show that semivolatile can undergo thermal
desorption with average treatment efficiencies that range from 50% to 99.4%. 12 data
points show that treatment of semivolatile organochlonne constituents will yield treatment
efficiencies that range from 88.5% to 98%. There is one datum showing that PCBs can
undergo thermal desorption with a treatment efficiency of 87.5%. 37 data points show that
thermal desorption of dioxin and furan constituents can achieve treatment efficiencies that
range from 85.6% to 97.6%. Based on the consulted literature (EPA 1998a. EPA 1998d.
EPA 1994, and the corroborative data in the 1995 EPA Superfund Studies --EPA 1995b).
EPA believes that thermal desorbers are among those technologies that will be able to attain
the treatment standards on a broad spectrum of soil-contaminanted matrices. EPA is relying.
therefore, on thermal desorption as one of many technologies capable of achieving the
treatment standards promulgated today.
References:
EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis ofTreatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled:"Derivation of Treatment Achievability Results for Organic Functional
Groups and T\pes of Compounds." April 1998. from Jose" E. Labiosa and Rita Chow of EPA Office of
Solid Waste. Arlington. Virginia. (RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatabilitv of Contaminated Soils as
Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." Apni 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1995b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In situ
Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995
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EPA 1994. October 1994. Remediation Technologies' Screening Matrix and Reference Guide. Second
Edition. Department of Defense;EPA Environmental Technology Council.
(EPA 542/B-94/013 or NTIS: PB 95-104 182)
• "The treatability test \vns performed in order to demonstrate and document the capability of utilizing
high temperature thermal distillation to remove and recover a wide range of volatile and semi volatile
compounds from the waste. The treatability test was performed on a waste matrix consisting of a 1:1
mixture of contaminated soil and tar sludge obtained form the P.S.E. & G.. Paterson site.

Operating temperatures of 1800 degrees F produced an ash like residue void of visual oil/tar. The
residue exhibited no odor. Analytical data obtained from testing the waste and residue produced by
the pilot scale unit indicate:

1. Pre-treated waste contained a variety of volatile compounds in concentrations ranging
between 28 ppm and 320 ppm. Semivolatile compounds existed in concentrations ranging
form 32 ppm to 320 ppm.

2. Treated residue contained non-detectable concentrations of volatile compounds at
detection limit concentrations ranging from 0.3 1 ppm to 0.62 ppm. Non-detectable
concentrations of semivolatile compounds existed at detection levels ranging from 0.33 ppm
to 1.6 ppm.

The results of a thorough data quality validation documents that all data is acceptable form a
standpoint of data quality' given the high oil content of the feed samples and the high adsorbtivity of
the treated residue due to it's extremely low organic content.

In review, the treatability test verifies that both the contaminated soil and tar sludge can be
successfully processed by the HT-V High Temperature Thermal Distillation process and result in the
production of a recyclable oil and non-hazardous residual soil." (TDI Thermal Dynamics. CS2P-
00058.H)

Response: EPA agrees with the commenter that soils contaminated with tar sludges can be treated to
treatment standards promulgated today by thermal desorption. EPA's treatment data show
the achievability of the treatment standards at many sites contaminated with complex PNA.
creosote, and PCB admixtures. (EPA 1998a. EPA 1997a. EPA 1995a. EPA 1994. EPA
1993b. and EPA 1994).

EPA's rule is intended to facilitate the use of innovative soil treatment technologies. The
soil treatment standards may be achieved using any treatment method except treatment
methods which involve impermissible dilution (e.g., addition of volume without destroying.
removing or immobilizing hazardous constituents). The practice of adding make up soil to
enable thermal desorption may not constitute impermissible dilution; in particular, if the soil
is contaminated with tar and petroleum oily sludges.

References:
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EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington.- Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA 1993b. March 1993. Technology Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

HWTC 1993. November 1993. Evaluation of Proposed BOAT Soil and Process Treatment Technologies -
Report to the Hazardous Waste Treatment Council. ENSR Consulting and Engineering, Document Number
3393-002.. submitted to EPA by the Hazardous Waste Treatment Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).
"Attached, please find some recent articles authored by SRS personnel which contain data indicating
compliance with levels proposed in this rulemaking. In response to the agency's request for
comments regarding raising the proposed levels to promote other innovative technologies. SRS
would offer that it has experimented with a number of variations of solvent extraction low
temperature thermal desorption and bioremediation to achieve existing LDR standards. Except to
the extent that the agency is willing to utilize a total VOC and SVOC concentration. SRS does not
believe that even existing LDR standards can be met with the high confidence levels required by SRS
customers.

SRS is currently in the final stages of procuring a license from EPA for the Base-Catalyzed
Decomposition (BCD) Process to dechlonnate dioxins and furan wastes, PCB's. and thermally
sensitive halocarbons. Dechlonnation using EPA's patented chemistry is achieved using SRS'S
SAREX Process to first desorb and decompose halocarbons in a solids react, followed by condensing
the desorbed stream for subsequent final dechJorination in a liquid reactor. This technology meets
the definition of recycling as the dechlorinated oil from this process can be utilized for energy
recovery in a cement kiln. STS recently completed an EPA SITE demonstration test using the BCD
Process at the Kopper Superfund Site in Morrisville. NC. Preliminary laboratory data results
indicated that the levels achieved in the SITE demonstration would meet the limits proposed in this
rulemaking. SRS requests that EPA reconsider its position in not allowing an innovative technology
such as the BCD Process from being utilized for F024 and other wastes containing dioxins and
furans. therefore further supporting the agency's desire to promote noncombustion technologies
which also lead to beneficial reuse of the recovered materials." (Separation and Recovery Systems.
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INC.. CS2P-00138)

Response: EPA disagrees with the commemer that higher limits or total SVOCs and VOCS are needed
to attain compliance with the treatment standards.

Data from EPA's Soil Treatment Database indicate that the soil treatment standards
established by EPA in trus rule are achievable through the use of a variety of remedial
technologies. The treatment standards can be reliably achieved using biological treatment.
chemical extraction, dechlonnation. soil washing, stabilization, and thermal desorption.
Because soil treatment is generally matrix dependent, the exact treatment technology to be
applied would depend on the specific properties of the soil and the hazardous constituents of
concern. Thus, not all soil treatment technologies will be capable of treating every
contaminated soil to meet the standards adopted in this rule. However, the Agency finds that
the standards typicallv can be achieved by thermal desorption. one of other non-combustion
technologies demonstrated in full-scale operation, even in the case of hard-to-treat hazardous
constituents such as dioxms. furans. polychJonnated biphenyls. and porynuclear aromatics.
(See Appendix D in EPA 1998a . EPA l~997a, EPA 1995b)'

The standards for volatile and semivolatile organic constituents are based, in part, on the
performance of bioremediation. EPA considered dechlorination and thermal desorption in
its standard setting process. EPA partially based the standards for polychlorinated
biphenyls. dioxins. and furans the performance of dechlorination and thermal desorption.

Thermal desorption has been shown to treat a relative wide range of orgamcs in soils to meet
the alternative hazardous soils treatment standards established today. Out of 957 data
points. 293 show that volatile orgamcs can undergo thermal desorption treatment with
average treatment efficiencies that range from 79.2% to 99.9%. 614 data points show that
semivolatile organics can undergo thermal desorption with average treatment efficiencies
that range from 50% to 99.4%. 12 data points show that treatment of semivolatile
organochlorine constituents will yield treatment efficiencies that range from 88.5% to 98%
There is one datum showing that PCBs can undergo thermal desorption with a treatment
efficiency of 87.5%. 37 data points show that thermal desorption of dioxm and furan
constituents can achieve treatment efficiencies that range from 85.6% to 97.6%. EPA lacks
performance data for thermal desorption of phenoxyacetic acid and organophosphorus
constituents. (EPA 1998c)

References:
EPA 1998a. Soil Data Analysis: Soil Treatability Analysis of Treatabilitv Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998c, memorandum titled:" Additional Information on Treatability of Contaminated Soils as
Discussed in Section VTT.B.8. of Phase IV Final Rule Preamble." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase IV/Hazardous
Soils/F-98-2P4F-FFFF.)

EPA 1997a. October 1997. Treatment Technology Performance and Cost Data for Remediation of Wood
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Preserving Sites. Office of Research and Development. Washington. D.C.. 20460.
(EPA/625/R-97/009)

EPA 1995a. November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood Treater
Sites. OSWER Directive 9200.5-162. EPA 540/R-95/128. or NTIS: PB 95-963410.

EPA 1995b. March 1995. Remediation Case Studies: Thermal Desorption. Soil Washing, and In situ
Vitrification. EPA- 542-R-95-005 or NTIS: PB95-182945. March 1995

EPA 1993b. March 1993. Technology- Selection Guide for Wood Treater Sites. OSWER Directive 9360.0-
46FS or EPA 540-F-93-020. Office of Solid Waste and Emergency Response. Washington. D.C.

HWTC 1993. November 1993. Evaluation of Proposed BOAT Soil and Process Treatment Technologies --
Report to the Hazardous Waste Treatment Council. ENSR Consulting and Engineering, Document Number
3393-002.. submitted to EPA by the Hazardous Waste Treatment Resource Council.
(See RCRA Administrative Record for Phase II rule, comment number CSP00060-E).
• "If hazardous constituents on soil are remediated to less than background levels, it should be
allowable to return the soil to the same location. In addition, if a recovery technology' is used, the
clean-up process should not considered hazardous waste management. Attached is information
(partially confidential) regarding a soil remediation technology we have ready used to recover
product from a pipeline leak and return the soil to the excavation. This project was under
supervision of the state agency." (Occidental Chemical Corporation. CS2P-00143)

Response: EPA has explained that remediation activities involving replacement of treated soils onto the
land is not a type of use constituting disposal, in part, since it is a supervised remediation
instead of an unsupervised recycling activity. 62 FR 26063 (May 12. 1997). This
interpretation is not affected by today's rulemaking.

It should be clarified, however, that other restrictions apply to hazardous contaminated soils
used to produce products which are subsequently used in a manner constituting disposal (i.e..
used to produce products which are placed in or on the land). Currently, hazardous waste-
derived products used in a manner constituting disposal must comply with the applicable
land disposal restriction treatment standards in 40 CFR Part 268. 40 CFR 266.23(a).
Hazardous contaminated soil used to produce products that are subsequently used in a
manner constituting disposal must continue to meet the universal treatment standards and
therefore are ineligible for the soil treatment standards promulgated under this rule.

• "Soil Treatment Database: EPA Request for Soil Treatability Information

In the Supplemental Notice, as in the initial Phase II proposal. EPA solicited comment on the existing
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Agency soil treatment database as \veli as ne\v soil treatability data. API is in the process of
evaluating the Agency's soil treatment database, and has solicited soil treatment information from
API members. API plans to comment in more detail on the EPA soil treatment database in
conjunction with the HWIR proposal, anticipated in early 1995. API will, however, transmit to EPA
any soil treatability information received from member companies as it becomes available both
before, and along with, comments on the HWIR contaminated media proposal." (API. CS2P-'K.il69)

Response: EPA believes the Soil Treatment Database provides information that justifies the
achievability and reasonableness of EPA's soil treatment standards. After screening the
database to eliminate inappropriate data.50 the Agency was left with 2.541 data pairs
representing treatment of eighty hazardous constituents including nine BOAT list metals, a
complete discussion of the Agency's method for screening the Soil Treatment Database can
be found in the LDR Phase II proposal (58 FR 48129 - 48131. September 14. 1993) and the
Best Demonstrated Available Technology Background Document for Hazardous Soil
(August 1993). Also, see EPA 1998a.
References:

EPA 1998a. Soil Data Analysis: Soil Treatabilitv Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste. Arlington. Virginia. (RCRA Docket for Phase
IV/Hazardous Soiis/F-98-2P4F-FFFF )
• "Per the request of section 4. Request for Additional Data and Comment, please accept the enclosed
information as an introduction to Biogenesis. We welcome an opportunity to open dialogue with this
division of EPA to put forth our achievements in order to grant a fuller understanding in one area of
current technology and its associated costs." (Biogenesis Enterprises Inc.. CS2P-00180)

Response: EPA notes the comment.

• "In part C: Proposed Approaches for Establishing treatment Standards for Hazardous Soils.
section 1. Technology-based Treatment Standards for Hazardous Soils, we agree with the Agency's
position that treatment standards should not be based exclusively on incineration. Moreover, limiting
innovative technology's range of treatability to "low and moderately contaminated soil" is not giving
existing technologies, such as ours, as well as technologies of the future, the full measure of latitude
which they appropriately deserve to treat highly contaminated soils efficiently and effectively.
Regulators should recognize in promulgations that the data available to them may not accurately
reflect the true state of innovative technologies currently under development, design or
implementation by stating that newly developed technologies are acceptable for remediation as long
as they are able to meet the new universal standards. This approach lends itself to less costly and
time consuming action on the part of the Agency in having to write future promulgations that
. acknowledge recently developed technologies. At the same time, this approach would give the
private sector an incentive to develop, improve and rapidly field innovative technologies because
artificial barriers would be greatly reduced.'" (Biogenesis Enterprises Inc., CS2P-00180)
Inappropriate data might be derived from tests reflecting poorlv designed or operated treatment or tests where EPA
believes inappropriate technologies were applied. For example, tests providine data on the "immobilization" of organic constituents
may demonstrate the application of inappropriate technology.

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Response: As discussed previously. EPA has based its soil treatment standards on the performance
capabilities of biological treatment, chemical extraction, dechlonnation. soil washing.
thermal desorption. and soil vapor extraction. This does not preclude the use of other
treatment technologies capable of achieving the treatment limits, provided those technologies
are not prohibited (e.g., impermissible dilution). Although the information available on new
technologies is always changing, EPA disagrees that the data available to the Agency does
not accurately reflect the state of innovative technologies. Because the rule allows the use of
other technologies (other than impermissible dilution), the rule already provides incentive to
develop new technologies and it is not necessary to specifically acknowledge newly
developed technologies within the regulations.

EPA believes the Soil Treatment Database provides sufficient reliable and up-to-date
information to justify the achievability and reasonableness of EPA's soil treatment
standards. After screening the database to eliminate inappropriate data, the Agency was left
with 2.541 data pairs representing treatment of eighty hazardous constituents including nine
BOAT list metals.

In addition. EPA has received four comments describing the performance of innovative and
conventional treatment technologies on hazardous soils. DuPont submitted bench, pilot, and
full scale treatment data that described the viability of soil washing as an innovative
technology for hazardous soils. The Environmental Technology Council (formerly the
Hazardous Waste Treatment Council) submitted full, pilot, and bench scale treatment data
from various vendors of innovative treatment technologies and provided an extensive review
of EPA's soil treatment data base. The HWTC report stated that EPA may lack full-scale
treatment data for several innovative or alternative technologies, but determined that the
many full scale operations of these non-combustion technologies justified the achievability
of soil treatment standards. LJSPCFs performance data described the treatment of
polynuclear organics in soils via chemical oxidation followed by stabilization. Sierra
Environmental Services submitted performance data regarding the treatment of carcinogenic
polyaromatic hydrocarbons (cPAH) via bioremediation.

• "Overall, the proposal is forward looking and encouraging. We applaud the efforts of EPA to clarify
areas of uncertainty and update those portions which are a hindrance to developing technologies.
This proposal levels the playing field with respect to technology implementation, yet does not
sacrifice safety of human health or environment." (Biogenesis Enterprises Inc., CS2P-00180)

Response: EPA notes the comment.

• "The attached pages (pp. 22 &23) from a paper given at the Institute of Gas Technology
S\Tnposium. November 29, 1993, contains a very relevant discussion on evaluating treatment
endpomts. Figure 12 shows the results of leachate tests and earthworm toxicity tests on soil before
and after treatment in a soil-water slum- reactor. Although PNAs were reduced by only 50%. the
concentration of total PNAs in the leachate was reduced from over 4000 ug/1 to less than 10 ug/1
after treatment. Similarly, the untreated soil killed all earthworms exposed to it, while the treated soil
exhibited virtually no acute toxicity to earthworms. This demonstrates that biological treatment is
far more effective at reducing toxicity than total concentration analyses will indicate. If standards
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were set which recognized the very io\v potential of these treated compounds to migrate, then
biological treatment would likely become a dominant treatment technology and many dormant
projects would move forward." ('Chevron. CS2P-00182)

Response: EPA agrees that biological treatment represents an effective means of meeting soil treatment
standards. Biological processes can treat moderate to low concentration volatile and
semivolatile organics to the established soil standards. Based on 245 data points. 48 data
points show that volatile organics can undergo an average treatment reduction of 99%
through biological treatment. 185 data points show that semivolatile organics can achieve
average treatment removal efficiencies that range from 55% to 98.2%. It appears, however.
that aromatic and cyclical semivolatile organics with more than five rings may achieve
treatment levels at or below an average treatment efficiency of 55%. Low to moderate
concentrations of organophosphorus pesticides can also undergo biotreatment and should
achieve the same treatment levels achieved by semivolatile organics. The remaining 12 data
points show that organochlonne pesticides achieve average treatment efficiencies that range
from 16.7 to 70.2%. EPA lacks performance data on the treatment of phenoxyacetic acid
pesticides, polychlonnated biphenyls (PCBs), and dioxin and furan constituents via
biotreatment.

EPA disagrees with the comment that the Agency failed to consider migration tendencies in
the determination of treatment levels. For contaminated soil, the Agency chose to establish
technology-based soil treatment standards at levels that are achievable using a variety of
common remedial technologies which destroy, remove, or immobilize substantial amounts of
hazardous constituents. 58 FR 48129 (September 14. 1993). EPA believes that the
treatment standards established today are within a reasonable range of levels of treatment
that satisfy 3004 (m).

EPA points out. further, that the TCLP is an inappropriate performance indicator for the
removal or destruction of hazardous organics. The legislative history to Section 3004 (m) —
in particular. Senator Chaffee's floor statement --makes it clear that hazardous constituents
are typically to be destroyed. This issue was settled in Phase II final rule. See Response to
Comments Document with regard to treatment standards applicable to PNAs in petroleum
refining wastes.
'"For the four release or exposure mechanisms presented Figure 11. methods are available for
estimating (i.e.. calculating) the severity of potential releases or exposures. However, these methods.
which derive from the relatively new discipline of risk assessment, tend to be very conservative and
can significantly overestimate die severity of actual releases or exposures. Fortunately, methods are
available for experimentally measuring the propensity for chemicals to be released via leaching or
volatilization from soils. Similarly, bioassay tests are available for estimating the actual toxicity
posed by chemicals in soils to ecological receptors.

Figure 12 shows the results of leachate tests and earthworm toxicity tests on a soil before and after
treatment in a soil-water slurry reactor. Although total PAHs were reduced by only 50% in this soil
(from about 12.000 mg/kg to 6.000 mg/kg), the concentration of total PAHs in the leachate was
reduced from over 4.000 ug/L before treatment to less than 10 ug/L after treatment. Based on
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conventional, conservative methods for estimating the release of chemicals from soil to water.
concentrations on the order of 100 to 1.000 ug/L would have been expected in the treated soil.
Therefore, it appears that slum' reactor treatment has greatly reduced (by more than 99%) the
propensity of the soil to leach chemicals into infiltrating water, even though the same treatment
reduced concentrations of total PAHs in the soil by only 50%. Similarly, the untreated soil killed all
earthworms exposed to it. while the treated soil exhibited virtually no acute toxicity to earthworms
(the 2.5% mortality- presented in Figure 12 is within the background range of toxicity for a natural.
uncontaminated solid subjected to earthworm toxicity testing). Once again, while total PAHs were
reduced by only 50%. slurry reactor treatment has reduced by 95% or more the acute toxicity- of
the soil to earthworms, resulting in a soil that is relatively non-toxic to ecological receptors.

While methods are available for experimentally evaluating the release of chemicals via leaching and
volatilization and the direct exposure of ecological receptors, no such methods currently exist for
experimentally evaluating incidental ingestion or dermal contact exposures by people. For chemicals
in soil to pose a risk to people via ingestion or dermal contact, these chemicals must be released from
the soil when the soil is in the gastro-intestinal tract or when the soil is in contact with the skin.
Since the results presented in Figure 12 suggest that the chemical remaining in treated soil is tightly-
bound to the soil, it may be that the chemical is not available for release if the soil is ingested or
contacts the skin.

To illustrate the impact that availability can have on direct contact exposures, acceptable
concentrations in soil based on incidental ingestion are calculated in Table 2. In most such
calculations, it is assumed that 100% of the chemical is released from the soil (ABSs=1.0 in Table
2). If this fraction is smaller, the resulting acceptable concentration is higher. As shown in Table 2.
as ABSs decreases from 1.0 to 0.1 to 0.01. the acceptable soil concentration increases from 0.1 to
1.0 to 10.0 mg/kg. Since the results in Figure 12 suggest that biological treatment might reduce the
availability of chemicals in soils, such treatment could generate a soil that poses negligible risk from
ingestion or dermal exposures. Since calculated risks posed by hypothetical direct contact exposures
to soil often determine the treatment target for a remediation technology, this issue of availability has
serious ramifications for whether or not a particular technology, this issue of availability has serious
ramifications for whether or not a particular technology is judged to be acceptable. Better definition
of the issues associated with determining acceptable treatment endpomts and the role of
bioavailability in such determinations for treated and untreated soils is the focus of ongoing activities
by GRI." (Institute of Gas Technology. CS2P.00182.a) [This comment is an attachment with
additional data related to soil.}

Response: EPA disagrees with the comment that the risk assessment procedures significantly overstate
the severity of actual releases or exposures. EPA believes that the soil standards comply
with RCRA 's mandate to ensure that short- and long-term threats to human health and the
environment are minimized. RCRA Section 3004(m). a site-specific risk-based variance
also could be available after an appropriate demonstration.
"IV. LDRs and other RCRA standards promote "dig and bunr alternatives for contaminated soils.
when treatment and reuse may often be more appropriate. Management and remediation of
contaminated groundvvater is even more inflexible under the current regulatory scheme.
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The following cases highlight the mappropnateness ot'RCRA Subtitle C facility standards.
permitting requirements and land disposal restrictions to remediation of contaminated media.

a. Soil Screening & Utilization

Our Billings Refinery has negotiated a soil assessment and management plan under a Consent Order
with the EPA Region VIII. Soil encountered during investigation and assessment of the site will be
screened in the field using a PID. If the PID readings are greater than or equal to 25 ppm. the soil
will be containerized and analyzed for TCLP. If the results are less than 25 ppm. the soil will be
reused on site for dikes, backfill, etc. Although composite samples from some areas have shown
levels of benzene and lead, the site has not tripped the TCLP limits.

Occasionally, contaminated soils may be generated due to construction or tank upgrade activities.
Some areas have failed TC for benzene. These contaminated soils are outside of the consent
agreement. Under separate agreement with the State of Montana, hazardous oily soils have been
excavated to background and either sent to the nearby Conoco landfarm or Environmental Services.
Inc.'s Subtitle C landfill in Boise. Idaho.

Our Ponca City Refinerv has voluntarily developed a similar soil management plan which has the
blessing of the Oklahoma State Department of Health (OSDHY Under the plan, soils excavated due
to construction or other activities at the plant are routinely tested for contamination. With the advent
of the TC rule, the plant was spending over S 100.000 per month on this voluntary program for TCLP
analyses to determine if the soil were hazardous. Field tests and screening parameters have since
been developed to minimize analytical costs associated with the soil management program.

As approved by the OSDH. the plant is now using BTEX and TPH field analyses to first screen for
contamination. There is roughly a 20 to 1 correlation between total and leachable constituents. Soils
with less than 10 parts per million (ppmi benzene and less than 500 ppm TPH may be reused on-site
for construction purposes, e.g., backfill, dikes, grading. Soils with total benzene levels at or above
10 ppm and/or TPH levels at or above 500 ppm are considered contaminated and additional testing is
performed. TCLP analyses are performed in the laboratory. Only Skinner List parameters, i.e..
constituent reasonably expected to begin the refinery's waste streams are evaluated.

Analytical expense has been reduced to S2000 per month with the use of the field screening
procedures. Applying the UTS to contaminated soil could escalate analytical cost severely the
proposed LDRs. hazardous contaminated soil must be treated for all of the hazardous constituents
reasonably expected to be present. There are over 200 potential constituents of concern.

The LDRs could also force incineration of soils which could be more appropriately treated and
reused on-site. a number of technologies may be used to treat petroleum contaminated soil in-situ or
ex-situ. including biotreatment, soil vapor extraction, soil washing and thermal desorption.

Response: EPA does not agree that the proposed standards provide an incentive for incineration, rather
than treatment and reuse. An express objective of this rule is to increase the range of
appropriate treatment alternatives available to achieve the LDR treatment standards in soil
to increase the likelihood that more remediations will include treatment as a component of
the remedy. EPA also does not agree that the land disposal restrictions are inappropriate.
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This objective could be impeded by adopting single numeric \alues as treatment standards.
since that approach would reduce needed flexibility. Finally, as discussed previously. EPA
based its soil treatment standards on the performance capabilities of biological treatment.
chemical extraction, dechlonnation. soil washing, thermal desorption. and soil vapor
extraction. These treatment data include the combined treatment performance of steam
stripping followed by Bioremediation. EPA believes that the treatment standards
established today do not preclude the use of other treatment technologies capable of
achieving the treatment limits, provided those technologies are not prohibited (e.g.,
impermissible dilution).

• B. Innovative Biotreatment Technology

At our Ponca City Refiner,', nonhazardous contaminated soils are treated using an innovative
technology that combines soil vapor extraction and bioremediation. The soils are wrapped in plastic
sheeting and contained on concrete pads. The innovative bioremediation technology, known as
"burrito" remediation, is also a feasible and practical treatment alternative for hazardous soils:
however. RCRA Subtitle C management standards and permitting requirements would prohibit the
use of treated soils in on-site construction projects.

Although the bumtos do not meet RCRA Subpart J Tank Standards, they are fully contained units
that are designed to minimize spills, control air emissions, and collect leachate. Vent gas from the
burritos is treated by carbon adsorption. The moisture content of the soil is controlled at optimum
conditions for bioremediation. There are no free liquids in the burritos other than water used for
moisture control. Excess moisture is drained and collected for treatment in the plant's NPDES
permitted wastewater treatment system.

Currently hazardous contaminated soils are disposed at the on-site Subtitle C landfarm or an off-site
Subtitle C landfill. These disposal methods, which are not as practical or protective as in-situ
treatment, would be prohibited once the organic TC LDRs take effect. We would be forced to treat
the soil using more costly technologies such as incineration.

Today it costs $300-400/ton for disposal in a Subtitle C landfill. Disposal in a hazardous waste
incinerator would cost $1300-1700/ton. In contrast, treatment as a nonhazardous material would be
less costly. Conoco's "burrito" technology-, in-situ biodegradation or ex-situ thermal treatment could
effectively treat the petroleum contaminated soils on-site for S40-70/ton depending on the soil
matrix. In addition, these technologies would facilitate resource recover,' through on-site reuse of
soil.

Response: EPA agrees that biological treatment represents an effective means of meeting soil treatment
standards. Biological processes can treat moderate to low concentration volatile and
semivolatile orgamcs to the established soil standards. Based on 245 data points. 48 data
points show that volatile organics can undergo an average treatment reduction of 99%
through biological treatment. 185 data points show that semivolatile organics can achieve
average treatment removal efficiencies that range from 55% to 98.2%. It appears, however.
that aromatic and cyclical semivolatile organics with more than five rings may achieve
treatment levels at or below an average treatment efficiency of 55%. Low to moderate
concentrations of organophosphorus pesticides can also undergo biotreatment and should
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achie\ e the same treatment levels achieved by semivolatile organics. The remaining 12 data
points show that organochlorinc pesticides achieve average treatment efficiencies that range
from 16.7 to 70.2%. EPA lacks performance data on the treatment of phenoxyacetic acid
pesticides, poiychlorinated biphenyls (PCBs). and dioxin and furan constituents via
biotreatment.

EPA based its soil treatment standards on the performance capabilities of biological
treatment, chemical extraction, dechlonnation. soil washing, thermal desorption. and soil
vapor extraction. This does not preclude the use of other treatment technologies capable of
achieving the treatment limits, provided those technologies are not prohibited (e.g..
impermissible dilution)..

D. Petroleum Product Spill and Releases.

The petroleum industry is linked by a vast network of petroleum pipelines covering the United States.
DOT statistics indicate that pipeline are the safest and least expensive form of transportation
available for petroleum. DOT statistics also indicate that a majority of the pipeline accidents are
caused from third party "dig-ins" due to unauthorized encroachment of our easements and right-of-
ways. Extensive public education systems are in place, and a toll free pipeline location service is
available to the public; however, third party dig-ins are still very frequent.

Pipeline operation control centers, such as Conoco Pipeline Company's Oil Movements in Houston.
Texas, have electronic detection systems in place to detect any potential release. If there is a
potential leak, a pipeline across the country' can be shut down in a matter of seconds. Unfortunately.
these monitoring and shut-off systems can only minimize the extent of releases, not prevent them.

Such a release occurred in the rural area south of Wichita. Kansas. Approximately 42.000 gallons of
unleaded gasoline were released. Most of the product was recovered. Conoco received a Consent
Order from the Kansas Department of Health and Environment (KDHE) concerning the leak site.

KDHE has established notification and action levels (KNLs and KALs) for releases in the State of
Kansas. The State typically negotiates site-specific levels below the KALs based on a risk
assessment to determine the impact to Human Health and the Environment (HH&E). However, a
large capacity expenditure would be required to achieve a clean-up below the KAL and based on the
risk assessment, a reasonable alternate remediation level could be achieved that posed no major
impact to the HH&E. then the alternative cleanup level could be accepted by the KDHE.

At this site. KDHE authorized the removal and transfer of the contaminated soil from the release site
to Conoco property. Approximately 2.500 cubic yards of petroleum-affected soil was excavated
from the leak site and hauled to the Conoco terminal. Approximately 25 soil samples were collected
from the walls and bottom of the leak site to determine whether the excavation addressed the areas of
contamination. Results indicated the effort was successful in remediating subsurface soil
contamination. Clean backfill was placed and compacted ion the spill-response excavation.

Terminal personnel removed the topsoil and scarified and bermed an open field of Conoco property
to form a containment cell in which the affected soil could be temporarily stockpiled. KDHE gave
Conoco permission to spread the soil in the containment cell for bioremediation.

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RCRA could have imposed inappropriate management standards and permitting requirements on the
temporary land-based treatment of contaminated soil at the site. The delays and costs associated
with RCRA requirements \vould have made the selected remedy infeasible. Since the petroleum
contaminated media at many release sites will be hazardous due to leachable levels of benzene, a
suspension of the TC rule for non-UST petroleum product-contaminated media and debns would be
of significant benefit to our operations. Petroleum contaminated media and debns from UST sites
have already been afforded relief from RCRA. It is only logical to extend this relief to non-L'ST
sites." (Conoco. Inc.. CS2P-00177)

Response: Today's final rule establishes a new treatability group-hazardous soils and establishes
LDRs specifically tailored to that treatability group. Today's action resolves the portions of
the April 29. 1996 and September 14. 1993 proposals that address LDR treatment standards
for contaminated soils . However, other elements of April 29. 1996 proposal remain open
and will be acted on in a future rulemakina.
. • "BN occurs with EPA's goal of seeking concombustive alternatives to treating contaminated media.
Biological treatment (both in-and ex-situ) and low temperature thermal desorption have been proved
to be effective alternatives to incineration in reducing the nsk associated with site contamination.
Containment, natural attenuation and degradation and institutional restrictions on future use and
access to property have also proven to be effective alternatives. EPA's current approach to applying
RCRA administrative and technical standards to the management of cleanup activities will
discourage the application of these technologies and alternatives and will only continue to delay the
clean up of sites without any appreciable enhanced environmental protection." (Burlington Northern
Railroad. CS2P-00148)

Response: RCRA's administrative and technical standards do not unduly impede the use of new
technologies and cleanup efforts. The standards are necessary to ensure administrative
efficiency, adequate record keeping, and consistent actions and determinations. EPA does
agree however that non-combustion technologies such as biological treatment and thermal
desorption represent effective means of meeting the established soil treatment standards. In
some instances, two or more treatment technologies may be needed to attain the treatment
standards. This may be the case for hazardous constituents that are recalcitrant to
biotreatment processes.

• "Many years ago. Koppers Company pentachlorophenol-formulating operations resulted in moderate
soil contamination at Time Oil's Portland. Oregon bulk terminal. Because unused (rather than used)
formulations containing pentachlorophenol were apparently spilled at the terminal, the hazardous soil
generated during cleanup will be classified as EPA hazardous waste number F027. See. 40 C.F.R.
261.3 (c)(2)(I). Under current land disposal restrictions. F027 waste cannot be land disposed until
concentrations of the constituents of concern in the waste (including dioxins and pentachlorophenol)
are reduced below 1 part per billion (ppb). 40 C.F.R. § 268.41. Incineration is the only treatment
proved capable of attaining this standard.61 See. 5 1 Fed. Reg. 40572. 40616 (November 7. 1986).
61 This fact alone illustrates the inequity of the present land disposal restrictions. Because soil at the
Portland terminal is apparently contaminated by unused products containing pentachlorophenol. the soil is classified as
F027 waste and must be incinerated. If the soil has been contaminated by the same products after use (e.g. by dnppage

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Time Oil expects to generate in excess of 3000 cubic yards of contaminated soil in cleaning up us
Portland terminal. Time Oil estimates that incineration of the soil at the only incinerator currently
permitted to accept F027 wastes (Coffeyville. Kansas) will cost S30 million to S43 million, including
transportation costs. These costs will significantly delay Time Oil's remediation of the Portland
terminal and impact Time Oil's capacity to participate in ongoing remediation of several other sues.

By contrast, the proposed alternative hazardous soil treatment standards will allow Time Oil to
conduct a cost-effective and. more importantly, environmentally protective cleanup. Time Oil has
evaluated biological treatment options and believes that even the most stringent of the three proposed
approaches for hazardous soils potentially could be met with these destructive treatment
technologies. After treatment, the soil could be replaced on site (if it no longer ''contains a
hazardous waste) or disposed at a RCRA Subtitle C landfill. Time Oil estimates total treatment and
disposal costs under the proposed hazardous treatment standards at S2 million to $4 million, roughly
five to ten percent of the cost of incineration.

In fact, on-site treatment and replacement of the contaminated soil may well be a safer, lower nsk
solution than incineration. The primary constituent of concern in Time Oil's contaminated soil is
pentachlorophenol from 7.4 mg/kg to 74 mg/kg. According to EPA's own nsk models, these
concentrations represent excess cancer risks of 1.3 x 106 and 1.3 x 10°. respectively. Certainly, the
standards are well within the range of acceptable risks. See. Ohio v. EPA. 997 F.2d 1520 (D.C. Cir.
1993) (nsk range of 1 in 10.000 to i in 1.000.000 adequately protects human health): 40 C.F.R.
300.430 (e)(2)d)(a)(2). Further. EPA's risk models assume a residential exposure, an extremely
conservative exposure assumption given the strictly industrial area in which Time Oil's Portland
terminal is located. Even with the exaggerated risk hypothesized by EPA's risk models, then.
treatment of the contaminated soil at Time Oil's Portland terminal to the proposed hazardous
treatment standards would result in soil that would be acceptable for placement in a residential
setting, without subsequent disposal at a Subtitle C facility.

Alternatively. Time Oil estimates that the volume of contaminated soil it expects to generate during
cleanup would fill at least 150 trucks. The nsk of a fatal accident during transportation of this
volume of soil to Coffeyville. Kansas for incineration is approximately 1.635 x 10"2. nearly 20.000
times greater than the risk associated with on-site treatment and replacement of the contaminated
soil.

Time Oil supports EPA's proposal to implement alternative hazardous soil standards that reflect the
inherent differences between traditional hazardous wastes and hazardous constituents contained in
soil. Time Oil applauds EPA's recognition that technologies appropriate for treatment of as-
generated hazardous wastes may not be appropriate when those wastes may not be appropnate when
those wastes are unintentionally combined with environmental media." (Time Oil Co.. CS2P-00178)
[Also see Chapter 27.A.]

Response: EPA notes the comment.
from treated wood), the soil would be classified as F032 waste and could be shipped directly to a RCRA Subtitle C
disposal facility with no pretreatment whatsoever. Time Oil supports EPA's efforts to introduce consistency and
fairness into the land disposal restrictions.

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• "The RRR incinerator was designed specifically for the treatment of low Btu materials such as
contaminated soils, a RRR is permitted, installed, and operating at RES(TX) Inc. in Deer Park. TX.
Two other fixed RRR's are permitted and planned for other at RES(NJ) Inc. in Bridgeport NJ. The
RRR can also be operated as a mobile unit, however none of the mobile units have been constructed.

The Rollins Rotary Reactor is a cost effective treatment for contaminated soils and media. It has
much greater flexibility in treating differing contaminants in differing soil matrices than any other
innovative technology. Also it is a proven innovative technology with a permitted facility
successfully operating for almost five years. Finally the level of treatment achieved meets present
RCRA standards and is more protective of human health and the environment than any other
innovative technology.

Attachment 1 to these comments addresses the technical issues of the RRR technology including
principles of operation, treatment efficiencies, and types of wastes handled. Attachment 2 addresses
capacity issues. The capacity information enclosed is for Rollins Environmental Services only and
does not include the available capacity provided by other incinerators. The HWTC has conducted a
survey of incinerator capacity and the results of that survey are in Appendix F of their comments to
this same docket, dated 11/15/93. The management of Rollins Environmental Services strongly
urges the Agency to review this capacity information. There is sufficient capacity in the incineration
industry to safely handle all incinerable wastes including those presently with capacity variances."
(Rollins. CS2P-00183) GREEN TAG

Response: For soil contaminated with organic constituents. EPA has noted many times that.
notwithstanding the fact that such soils can be burned, it is generally unsuitable or
unpractical from a technical standpoint to burn large volumes of mildly contaminated soil.
See. For example. 55 FR at 8760 and 8761 (March 8, 1990) and 61 FR 18806-18808 (April
29. 1996). In addition, the Agency has documented potential difficulties that may arise from
the combustion of soil due to soil/contaminant characteristics that affect incineration
performance such as the concentrations of volatile metals, the presence of alkali salts, fine
particles of soil such as clays and silts, and the ash fusion point of the contaminating waste.
For example, operation of an incinerator at or near the waste ash fusion temperature can
cause melting and agglomeration of inorganic salts: the loading of clays and silts in come
soils may also result in high loadings of particulate matter in flue gases. Proposed BOAT
Background Document for Hazardous Soils, August 1993 and Technology Screening
Guide for Treatment ofCERCLA Soils and Sludges. EPA 540/2-88/004, September 1988.

EPA's conclusions with respect to achievability of soil treatment standards for organics in
hazardous soils are based on the performance of biological treatment, chemical extraction.
dechlorination. soil washing, thermal desorption. and soil vapor extraction. Other treatment
technologies capable of achieving the treatment limits such as combustion are not prohibited
except for those that may constitute impermissible dilution.

With regard to the issue of data for assessing treatment capacity. EPA points out that this
issue is moot. The capacity period for many prohibited wastes is long over including
capacity treatability variances.

• 'EPA presents a table that identifies 36 treatment technologies under 9 different categories

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(Table 1. 58 FR 48128). This table also includes a listing of the number of bench-, pilot-, and
full-scale tests having information for each treatment technology compiled in Data Summary
Forms (which are associated with the soil treatability database).

DOE notes the omission of one important technology category from the EPA compilation (Table 1.
58 FR 48128). The missing category is electric separation which includes electrokinetic technology
Another database released by EPA in June of 1993. entitled "The Vendor Information System for
Innovative Treatment Technologies" (VISITT 2.0) has an extensive compilation of various
innovative treatment technologies, and indicates the scale of tests, contaminants treated, treatment
costs, and the vendors of these technologies . a recent search of this database located listings of one
bench-scale and two pilot-scale tests under this category. Currently, a bench-scale test of
electrokinetic technology- is being tested at the Hanford site as a means of remediating soil
contaminated with the radionuclides cesium-137. europium-152 and cobalt-60. a pilot-scale
electrokinetic test to remediate a chromium contaminated site at Los Alamos is being planned.
Therefore. DOE suggests that electrokinetics be included as a demonstrated in-situ technology "
(DOE. CS2P-0016U

Response: EPA recognizes that many innovative technologies can provide treatment capable of
meeting the proposed limits for organics and metal constituents found in hazardous soils.
lOxUTS levels, or the 90% reduction in total or leachable concentration of hazardous
constituents present in hazardous soils. This conclusion is confirmed in the full scale and
pilot testing. EPA also recognizes how a soil matrix may interfere with treatment, but
believes that good engineering practices can be employed to meet the treatment objectives
set by EPA's new standards. Other treatment technologies capable of achieving the
treatment standards are allowed except for those that may constitute impermissible
dilution.

• "The MDA has also included a description of land treatment of pesticide contaminated soil, a method
being used in Minnesota to manage soil containing pesticides resulting from agricultural chemical
releases. We believe that land application in certain situations is an effective, economic and
environmentally safe method to manage pesticide contaminated soil. The MDA requests that the
U.S. EPA review the described situations and consider implementing the three recommendations, by
amending existing regulations or issuing separate policv. provided on the page of comments.

Land treatment of pesticide contaminated soil.

Land disposal under the LDRs includes disposal of hazardous wastes in a land treatment facility
which meets RCRA facility standards. Under the present proposal the hazardous constituents in the
wastes must meet the UTS for each constituent before the wastes can be placed int eh RCRA land
treatment facility.

a common treatment method utilized in Minnesota for soils containing petroleum contaminants from
petroleum release sites is incorporation of the contaminated soil into the top four to six inches of
native soil in a cultivated or non-cultivated field. Petroleum contaminants are degraded to non-toxic
products through a combination of microbial. photolytic. chemical and plant-mediated processes.

In addition to allowing the land application of petroleum contaminated soil, the state of Minnesota

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has also allowed the land application of pesticide contaminated soil. Land application provides an
inexpensive and efficient treatment alternative for the remediation of pesticide contaminated soil
associated with the cleanup of agricultural chemical facility' sites. Other available remediation
options are either unproven on a commercial basis or considerably more expensive than land
application.

Land application of pesticide contaminated soil involves the use of the contaminant as a pesticide or
as a treatment method for the pesticide residue in the excavated soil. Both approaches must be -'
conducted such that there are no adverse effects on human health, livestock or the environment. The
soil must be applied in accordance with the pesticide label directions which specify application rates
for the receiving crop and soil Upe. This is consistent with the original intended use of the pesticide
on crop land, as allowed by the EPA. if the pesticide contaminated soil is applied at label rates in
accordance with the intended ordinary manner of use.

When the pesticide contaminated soil contains a mixture of pesticide residues, two crop safety
factors are also considered in the land application proposal. Both the phytotoxic potential of the
incompatible product(s) to the receiving crop and the possibility of non-labeled pesticide residue
accumulation in the food product portion of the crop are evaluated and utilized in the decision to land
apply soils containing pesticide residues.

In situations invoking the land application of pesticide contaminated soil, the contaminated soil is
thinly spread on agricultural topsoil. generally on the order of a fraction of an inch, and the
contaminated soils usually subsequently incorporated into the upper six inches of topsoil. The
pesticides are then degraded to non-toxic products under photolytic. microbial. chemical and plant -
mediated processes.

The state of Minnesota, through the MDA. requests that the EPA consider the following situations
and recommended approaches for land application of pesticide contaminated soil. At some sites the
soil is contaminated with currently registered pesticides and very low levels of a canceled or
suspended, previously registered, hazardous pesticide. The MDA requests that the EP*\ consider
allowing the land application of soil containing currently registered pesticides and a canceled or
suspended, previously registered, hazardous pesticide if the initial concentration of the hazardous
pesticide is below the UTS for the pesticide. Additional requests for EP a consideration of land
application procedures for pesticide contaminated soil follow.

a. Soil or other environmental media such as sediment or surface water is contaminated
with one or more currently registered non-hazardous pesticide(s).

MDA recommendation: affirm that the Federal Insecticide. Fungicide and Rodenticide Act (FIFRA)
designated state lead agency (SLA) for pesticide regulation may approve the land application of soil
or other environmental media containing currently registered non-hazardous pesticides at or below
label directed rates and on crops consistent with labeling in accordance with the intended ordinary
manner of use.

In addition, affirm that the SLA. under FIFRA authority, may determine the concentrations of
currently registered, non-hazardous pesticides in soil or other environmental media which are not of
regulators- concern and may be land applied subject to SLA approval. This determination will
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include an evaluation of the actual and/or potential risk posed by the land application of the
pesticidel's) into the environment.

b. Soil or other environmental media is contaminated with one or more currently
registered pesticide(s), one or more of which is a listed hazardous waste or is
characteristically hazardous under RCRA

MDA recommendation: affirm that the SLA may approve the land application of pesticide
contaminated soil or other environmental media at or below label application rates and on crops
consistent with labeling, in accordance with the intended ordinary manner of use. The UTSs are not
applicable as the soil containing hazardous pesticides will be land applied in accordance with label
rates and the intended ordinary manner or use.

In addition, affirm that soil contaminated with hazardous pesticides could be recycled by land
application as described above. RCRA recycling timeliness should be suspended due to the seasonal
and practical restnctions inherent to the land application of pesticide contaminated soil and the
exigencies of agricultural chemical site clean up activities.

c. Soil or other environmental media is contaminated with one or more currently
registered pesticide(s), and also contaminated with relatively low concentrations of
canceled or suspended, previously registered, hazardous pesticides.

MDA recommendation: affirm that the SLA may approve the land application of soil or other
environmental media at or below label directed rates and on crops consistent with labeling, in
accordance with the intended ordinary manner of use. In addition, affirm that the presence of low
concentrations of canceled or suspended pesticides' requires an evaluation of the actual or potential
risk to human health and the environment, and that the initial concentration of the hazardous
constituent ;must be below the UTS for the hazardous constituent before the soil is land applied.
Affirm that the presence of a canceled or suspended, previously registered hazardous pesticide does
not be facto prohibit an approval for land application, if a determination of minimal risk has been
reached and the initial concentration of hazardous constituent in the soil is below the UTS for that
constituent.

For example, consider a hypodietical site in Minnesota where the soil is contaminated with both
metolachJor. a currently registered, non-hazardous pesticide, and aldrin. a canceled, hazardous
pesticide. Approximately 35 cubic yardsfyd3) of soil is contaminated and the average concentrations
of metolachlor and aldrin in the soil are 20 mg/.kg and 0.061 mg/kg, respectively. The UTS for
aldrin 0.0664 mg/kg.

In order to land apply the soil so that the metolachlor concentration does not exceed the lowest label
application rate of 151bs/acre. approximately 2.2 acres of land are needed, as shown below:

35 yd3 soil x 0.0024 million lbs/yd3 = 0.084 Ibs soil

0.084 Ibs soil x 20 mg/kg metolachlor = 1.68 Ibs of metolachlor

Using half of the lowest label application rate of 1.5 for metolachlor on corn.
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1.68 Ibs metolachlor / 0.75 Ibs/acrc =2.2 acres

There are 0.005 Ibs ofaldnn in the soil, and the corresponding application rate would be U.0023
Ibs/acre ofaldnn if 2.2 acres of cropland \vere used.

0.084 Ibs soil x 0.061 mg/kg aldnn = 0.005 Ibs aldnn

0.005 Ibs aldrin/ 2.2 acres=0.0023 Ibs/acre

If 35 yd3 of soil is land applied to 2.2 acres, the soil will be physically applied at a rate equivalent to
16 yd3 per acre. This rate corresponds to a spreading thickness of 0.12 inches across one acre, as
shown below:

16 yd3 4840 yd- = 0.0033 yd or 0.12 inches vertical thickness

The applied soil would then be incorporated into the upper 3-6 inches of topsoil. If the 35 yd3
containing 0.005 Ibs ofaldnn is incorporated into the upper 3 inches of 2.2 acres, the resulting aldnn
concentration in the soil would be 2.27 ug/kg or 0.002 mg/kg, as shown below, assuming 2.000.000
Ibs/acre for 6 inches of soil

l.OOO.OOOlbs/acre x 2.2 acres = 2.200.000 Ibs soil

0.005 Ibs aldnn / 2.200.000 Ibs soil = 2.27 x 10'y. 2.27 ug/kg or 0.002 mg/kg

The resulting aldrin concentration. 0.002 mg/kg. is less than 1/30 of the UTS for aldnn. If the soil is
incorporated into the upper 6 inches of 2.2 acres, the resulting aldrin concentration is 0.001 mg/kg.
which is less than 1/60 of the UTS for aldnn.

This example is representative of the concentrations and volumes of soil containing canceled or
suspended hazardous pesticides found at agncultural chemical sites in Minnesota. It is possible to
find small quantities of soil containing low concentrations of canceled or suspended hazardous
pesticides, resulting from legal use or past accidental spillage, which we believe in some situations
can be safely and economically managed through land application on agricultural cropland.

4. Soil or other environmental media is contaminated with canceled or suspended.
previously registered, hazardous pesticides.

MDA recommendation: allow the SLA to identify concentrations and circumstances which indicate
whether the residue is result of either an historical, legal use or a former production or manufactunng
process. Allow the SLA to permit land application in a manner consistent with past labeling with
respect to crop types and application areas, not rate, where the residue of historical, legal use or the
where the initial source is unknown, proceeded the concentrations of the non-registered hazardous
pesticides in the soil are below the UTS for the affected pesticides and there are no unreasonable
adverse effects to human health or the environment.

5. Soil or other environmental media is contaminated with one or more currently
registered non-hazardous pesticides and low concentrations of a non-pesticide
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hazardous waste.

MDA recommendation: affirm that the SLA. in consultation \vith the Minnesota Pollution control
Agency, authorized to enforce RCRA I Minnesota. ;may allo\v the land application of such soils if
the pesticides can otherwise be land applied in accordance with label rates on appropriate crops, if
the levels of the non-pesticide hazardous waste are equal to or below the UTS for that hazardous
waste and if there is minimal risk to human health and the environment.

We also request that EPA consider implementing the following general recommendations to allow
the continued land application of pesticide contaminated soil or other environmental media.

a. Amend FIFRA. or alternatively, issue EPA cleanup policy which specifically allows land
application of pesticide contaminated soils or other environmental media, as outlined in the
situations described above.
a. Develop, or allow the SLA to develop and submit to EP a for approval a table of "de
minirms" concentrations of current and previously registered canceled and suspended
pesticides to be utilized in determining minimum risk levels for pesticides in regard to land
application. This list would be based on crop and plant phytotoxicities. typical field residue
levels, food residue levels. UTS for affected pesticides and other relevant data.
b. Suspend the requirement for recycling hazardous pesticides within a certain time period for
the land application of pesticide contaminated soil. Pesticide contaminated soil can be land
applied only in the warmer months of the year, and additional time requirements exist for
land application of particular pesticides such as atrazine. so the recycling time period
requirement should be relaxed to allow land application of pesticide contaminated soil in
accordance with the intended ordinary manner of use of the pesticide." (Minnesota
Department of Agriculture. CS2P-00186)

Response: EPA reminds program implementors that, consistent with the rest of the land disposal
restriction program, site-specific determinations that threats are minimized cannot be based
on the potential safety of land disposal units, or engineered structures such as liners, caps.
slurry walls or any other practice occurring after land disposal. American Petroleum Inst. v.
EPA. 906 F.2d 729. 735-36 (D.C. Cir. 1990) (land treatment cannot be considered in
determining whether threats posed by land disposal have been minimized because land
treatment is a type of land disposal and section 3004 (m) requires that threats be minimized
before land disposal occurs): see also S. Rep. No. 284. 98th Cong. 1st sess. at 15. stating
that engineered barriers cannot be considered in assessing no-migration variances because
•'[artificial barriers do not provide the assurances necessary to meet the standard." This
means that site-specific minimize threat determinations must be based on the inherent threats
any given contaminated soil would pose. The Agency recognizes that this will have the
effect of precluding site-specific minimize threat variances for remedies that rely, even in
part, on capping, containment or other physical or institutional controls. In addition to being
compelled by the statute, the Agency believe this approach is proper, in that it may
encourage remedy choices that rely more predominantly on treatment to permanently and
significantly reduce the concentrations (or mobility) of hazardous constituents in
contaminated soil. The Agency has a strong and longstanding preference for these types of
more permanent remedial approaches.
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EPA is establishing a site-specific variance from the technology-based soil treatment
standards, which can be used when treatment to concentrations of hazardous constituents
greater (i.e., higher) than those specified in the soil treatment standards minimizes short-
and long-term threats to human health and the environment. In this way, on a case-by-
case basis, risk-based LDR treatment standards approved through a variance process could
supersede the technology-based soil treatment standards.

5.G CONSTITUENT-SPECIFIC ISSUES

5.G.I Asbestos

• "We also agree with the Agency's alternative of disposing of hazardous soil containing
asbestos in leak-tight containers (per NESHAP requirements) using macroencapsulation
in Subtitle c landfills." (General Motors, CS2P-00095)

• Special Provisions for Soil Containing Asbestos

If asbestos-tainted soil is containerized in leak-proof containers and the containers are
then macroencapsulated, these containers should then be suitable for disposal in a
Subtitle D landfill. The use of macroencapsulation coupled with containerization
should render a decision that the material has been treated such that the likelihood of
hazardous contamination escaping is minimal." (Westinghouse Electric Corp.. CS2P-
00115)

• "IN PARTICULAR REFERENCE TO RCRA SOIL STANDARDS FOR ASBESTOS
DOW BELIEVES THAT EPA SHOULD NOT ATTEMPT TO REGULATE
ASBESTOS-CONTAINING SOILS UNDER RCRA; CURRENT REGULATIONS
UNDER OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)
.AND THE CLEAN AIR ACT (CAA) HAVE PROVEN EFFECTIVE AND
PROTECTIVE. ACTUAL ABATEMENT PROJECT DATA SUPPORTS THIS
POSITION.

Current regulations under OSHA and CAA governing the handling and disposition of
asbestos provide adequate protection for human health and the environment. OSHA
regulations already provide adequate protection for personnel working with all types of
. asbestos products and asbestos containing materials including work involving mining,
manufacturing, demolition, excavation, and landfilling, all of which may involve
contaminated soil. Since OSHA standards are based on airborne concentrations of
asbestos and require certain protective measures when action levels and/or excursion
limits are reached, no additional protection would be gained by adding further
regulatory requirements for contaminated soil. The Asbestos NESHAP provides
several standards covering the handling and disposal of asbestos material. These work
practices which set forth strict standards for handling asbestos until it reaches its final

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destination in a landfill, minimize the amount of asbestos material which can become
mixed with soil outside of controlled areas. On occasion small pieces of broken transit
or other asbestos containing material may become mixed with soil (as when transit is
removed from a building being demolished), but are not likely to result in large
amounts of fibers being released to the air. Dow has monitoring data from abatement
projects which support this determination

Asbestos is a naturally occurring mineral found in soils, groundwater, and surface
water. Since it is already widespread naturally, there would be no practical way to
differentiate between asbestos which is naturally occurring and that which has come
from asbestos containing products or materials and has become mixed with native soils.
Any regulation developed would have to address this natural asbestos by devising some
sort of de minimis level. Gross amounts of asbestos material will be removed from the
ground and disposed of properly under current NESHAP regulations since, if not
naturally occurring, they will have been generated in one of the activities (e.g.,
renovation, demolition, manufacturing, etc.). Even if an attempt were made to
regulate soil contaminated with asbestos, the suggested treatment methods utilizing
'leak tight' containers and macroencapsulation would be very expensive and provide
only a minimal amount, if any, protection to human health or the environment. The
volumes of soil which could potentially be affected by such a proposed regulation
would be tremendous and if required to be placed in a Subtitle C landfill would quickly
deprive most RCRA facilities of valuable landfill space. Creating a new layer of
regulations for little or no benefit is not warranted." (DOW, CS2P-00184)

"The Agency requests comments on the need for special provisions for the
regulation of hazardous soil that contains asbestos. One option the Agency is
considering is to collect and store hazardous soil containing asbestos in leak-tight
containers, followed by macroencapsulation and disposal in a RCRA Subtitle C
landfill.

The EPA proposal for disposal of asbestos-contaminated hazardous soil attempts to
satisfy Occupational Safety and Health Act, the Clean Air Act, and RCRA. While this
is a worthy goal, the proposed method of sealing hazardous soil in leak-tight containers
followed by macroencapsulation and disposal may lead to additional difficulties. For
instance:

• Constituents causing the soil to be hazardous( e.g., heavy metals, organics, etc.)
May cause corrosion of the containers and/or result in organic degradation
within the containers (i.e., necessitating containers capable of withstanding
these processes).

• Chemicals (such as organics) causing the soil to be hazardous may decompose
or react, resulting in a build up of pressure within the container over time.

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DOE recommends that EPA explore these potential problems before codifying special
asbestos-contaminated hazardous soil requirements." (DOE. CS2P-00161)

Response: This rule is not considering a change in substantive policy regarding treatment of
asbestos. Site-specific issues can be dealt with as part of the treatment variance process. In
addition, the final rule provides the option of treatment standards for contaminated soils at 10 X
UTS or 90 % reduction in total concentration. There is also a risk-based variance available.
These changes would seem to address the commenters1 concerns.

5.G.2 EMA/MMA

• "Adoption of this flawed treatment standard would have a direct, negative impact on
MPA members. First, with respect to the remediation of EMA and MMA product
spills, the treatment standard would establish an unjustifiably low cleanup standard
which would mandate that soils with very low, unharmful concentrations of EMA and
MMA be incinerated. This result would trigger excessive, unnecessary costs; it would
reflect an unjustified bias toward the use of incineration as a remedy to address
contaminated soils; and it would magnify the irrationality of subjecting EMA and
MMA product spills to extraordinary treatment standards, while spills of EMA and
MMA wastes remain subject to RCRA generic, characteristic waste standards -
standards which typically confirm that impacted soils do not qualify as RCRA
hazardous wastes." (Methacrylate Producers Association, CS2P-00056)

• "These concerns are not theoretical. Regulatory authorities have been identifying
permit and remediation standards for EMA and MMA. These standards, which have
been based on very conservative risk-based concepts, significantly exceed the proposed
universal treatment standards. To illustrate, MPA member companies have worked
with State and EPA authorities to identify a cleanup standard for remediating MMA
and soils that is significantly above the proposed universal treatment standards.
Likewise, permit levels for MMA have been identified which exceed the proposed
treatment standards. MPA will be filing an appendix to these comments which
provides additional information about these cleanup levels." (Methacrylate Producers
Association, CS2P-00056)

Response: The final rule provides the option of treatment standards for contaminated soils at
10 X UTS or 90 % reduction in total concentration. There is also a risk-based variance
available. These changes seem to meet the commenter's concerns. In addition, nonanalyzable
constituents such as metahcrylate may qualify for these hazardous soil treatment standards as
discussed in the preamble and background documents (EPA 1998d).

5.G.3 Lead
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• 'J. EPA Lead Strategy

The HWTC supports EPA's proposal at 58 Federal Register 48133 to integrate the
Agency's Lead Strategy with the development of BDAT standards for hazardous soil.
Lead contaminated soil and media represents a major environmental problem, and
establishing protective LDR treatment standards will aid in preventing continued
problems. The HWTC. however, does not support a total constituent standard for lead
as proposed. Lead cannot be destroyed, and total constituent standards are usually
more suited to constituents amenable to destruction treatment technologies. Instead, the
HWTC encourages EPA to lower the existing leachate based treatment standards for all
lead bearing waste, including characteristic D008 waste. The latter is an action that
EPA must take also to address the Court's mandate in the Third-Third Case. Since the
lead standard is being lowered for drinking water, it would be justified for EPA to
lower both the characteristic hazardous threshold and the BDAT treatment standard
under the TCLP test by at least a factor of 10. Data submitted to the Docket for the
Third Third's LDR rule supports the achievability of the standard (i.e.. see data
supplied by CyanoKEM). This would provide a greater level of environmental
protection, and would be a welcomed addition to EPA's Lead Strategy. In addition, a
leachate standard is more practical for industry to meet than a total constituent
standard." (HWTC, CS2P-00060)

Response: As noted in other responses, the treatment standards for lead (including lead-
contaminated soils) do not require use of HTMR, and the standards require only reduction in
mobility (using the leachate measurements from the TCLP test).

• "Best Demonstrated Available Technology for Lead

PMET respectfully suggests that High Temperature Metal Recovery (HTMR) not be
considered to be the Best Demonstrated Available Technology (BDAT) for lead
removal and recovery from soils and industrial wastes. It is firmly believed that , by
establishing revised regulations based solely upon HTMR, Resource Recovery,
Recycling, and Reuse of lead will be inhibited as the result of:

13. Dramatically increased treatment costs for all lead-bearing wastes,

14. Eliminating the use of technically viable, low-cost physical separation and
hydrometallurgical processes that have been demonstrated to have the capability
of significantly increasing the amount of material being recycled and reducing
the volume of hazardous waste being landfilled, and

15. The greatly increased volume of material for which treatment would be
required.
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The relative costs of lead removal and recovery by physical separation.
hydrometallurgical treatment, and HTMR are estimated to be:

Physical Separation: S50 to S100 per ton (1)
Hydrometallurgical Treatment: S75 to SI75 per ton (1)
High Temperature Metal Recovery: S250 to S500 per ton (1)

1.EPA/540/AR-93/517 April 1993
2.EPA/540/AR-92/019 December 1992

The above costs for Physical Separation are consistent with reported values as well as
those of a physical separation process developed and successfully piloted by PMET that
recovers lead-based paint chips from spent blasting abrasive. This technique, which
results in 30-40% of the treated material being reused as blasting abrasive, 40-50%
being suitable for beneficial reuse in the production of building products, and 10%-
30% being used as smelter feed for recycling of the contained lead, recycles 100% of
the spent material and eliminates the need to dispose of over 100,000 tons of material
per year in hazardous waste landfills. This process is currently being commercialized
by Lead Separation Technologies corporation.

The costs for Hydrometallurgical Treatment are consistent with reported values as well
as those for a proprietary hydrometallurgical process developed and successfully piloted
by PMET for the removal and recovery of lead from contaminated soils, foundry sand.
industrial wastes, spent blasting abrasives, etc. The PMET : "Hydro Process" removes
and recovers lead in the form of a metallic sponge suitable for recycling, operates
without generating liquid or solid secondary wastes or noxious gaseous effluents, and
produces products that easily conform to current lead regulations. This process is also
being commercialized by Lead Separation Technologies corporation.

Unlike the HTMR process, which may increase the leachability of other heavy metals
present in the treated waste, neither the Physical Separation Process nor the
Hydrometallurgical Process alter the leaching characteristics of other metallic
contaminants in the treated product.

The proposed revision in the lead regulations would adversely affect the use of both
Physical Separation and Hydrometallurgical Processes that can contribute to Resource
Recover. Recycling, and Reuse treated lead-bearing products. Accordingly, it is
suggested that the lead limits in the new regulations be set to permit continued use of
proven and effective physical and hydrometallurgical techniques." (PMET, CS2P-
00096)

Response: The final treatment standards for lead do not require use of any particular
technology, and should be achievable by a number of treatment technologies. As noted in

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other responses, the treatment standards for lead (including lead-contaminated soils) do not
require use of HTMR.

"Total Standard Versus Leachate Standard for Lead

Asarco opposes the use of a total standard for lead (and for all other inorganic
constituents) to set LDR treatment standards. Asarco agrees that if treatment is
necessary, recovery technologies are preferable when feasible and cost-effective, but
they are not always feasible for soils if metals concentrations in the soils are relatively
low. Thus, if treatment is necessary to protect human health and the environment.
stabilization, solidification, and immobilization are generally the most appropriate and
effective treatment technologies for many metal-bearing soils. Total standards for
metals are inappropriate because they fail to measure reduction in mobility, which is
often the key aspect of treatment for metal-bearing soils. In addition, a total lead
standard for soil is inappropriate for use in any program because such a standard does
not accurately reflect risk from lead in soils for various reasons, including the low
bioavailability of certain species of lead in soils, low mobility of lead in soils, and low
contact rates with soil in many situations." (Asarco, CS2P-00166)

Response: EPA is not adopting a treatment standard requiring reduction in total concentrations
of lead.
1. "EPA seeks to integrate the present rulemaking effort with the Agency's February 21,
1991 Lead Strategy.

DOE supports EPA's proposal to address lead contamination by coordinating authority
across programs and by setting a total lead standard (versus the leachate standard).
Such an approach would appear to be beneficial and may simplify remediation of lead
contamination problems." (DOE. CS2P-00161)

Response: EPA appreciates this support.

5.G.4 Mercury

• "The Institute believes that a treatment standard for mercury in soil of 0.009 mg/1
TCLP is not supported by any BDAT. Such a treatment standard is neither realistic nor
necessary. The Institute is now able to support a treatment standard identical to
currently promulgated regulations for D009 wastes." (Chlorine Institute, CS2P-00016)

Response: The final treatment standard for mercury is an order of magnitude higher than UTS

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(and well above 0.009 mg/1 TCLP). or based on a 90 % reduction in mobility (or total
concentration if a removal technology is used). The rule also provides a risk-based variance.
These changes from proposal should meet the commenters concerns.

• "Wastes such as concrete slabs or chunks, soils from excavations during construction.
discarded piping, and tanks are not treatable by any of the technologies under
consideration by USEPA. The materials are also low in mercury content. Since these
types of materials are difficult to subject to an EP Toxicity Test, it is the general
practice of member companies to conservatively classify them as D009 based on the
possibility of mercury contamination." (Chlorine Institute, CS2P-00016.B)

Response: These issues appear to be dealt with already by the 1992 debris rule, and are not
reopened here.

• "Following promulgation of the Land Disposal Regulations which, unfortunately.
included mercury retorting as BDAT, the Chlorine Institute and its individual members
began a diligent effort to develop BDAT for certain mercury bearing waste to allow
time for implementation of the developed technology. Participating members applied
for a case-by-case extension to the effective date for incorporation of appropriate
treatment processes at various facilities across the U.S. Simultaneously, recognizing
the inappropriateness of BDAT for certain debris types, a Chlorine Institute Task
Group was formed to investigate alternative treatments for D009 waste. In conjunction
with the research, the Chlorine Institute filed, on behalf of its members, two variance
requests on August 1, 1991. One variance request was for alternative treatment for
mercury contaminated debris and the second request was for alternative treatment for
mercury contaminated soil.

Subsequently, the Chlorine Institute was advised that EPA would be promulgating
independent revisions to the soil and debris land disposal regulations and thus the
variance applications would not likely to be addressed until such time as the proposed
regulations were published, believing that such regulations for contaminated debris
were published on January 9, 1992 and cannot realistically be expected to be final prior
to sometime after March, 1992, Industry remains at great risk for being unable to
comply with the statutory land disposal restriction date of May 8, 1992 for certain
D009 mercury contaminated waste. Although current hazardous waste regulations
would permit a brief period of time for storage of waste in permitted facilities, Industry
remains concerned that if final regulations are delayed, final required BDAT treatment
facilities will not be able to be engineered, designed, procured and constructed prior to
conclusion of the brief, allowed storage time. Thus, Industry would potentially be
subject to various kinds of enforcement actions for failure to meet regulatory and
statutory obligations.

This burden is even greater for mercury contaminated soils. Industry currently

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understands that it cannot expect final regulations for soil to be promulgated before
sometime in 1993. Thus storage time and capacity becomes a more serous issue.
Further, such limitations will certainly curb otherwise planned soil clean-up activities."
(Chlorine Institute. CS2P-00016.D)

Response: See previous response. Also, the final rule provides the option of treatment
standards for contaminated soils at 10 X UTS or 90 % reduction in total concentration. There
is also a risk-based variance available. These changes seem to meet the commenter's
concerns. Finally, as pointed out to other commenters. the treatment capacity variance for
.many prohibited wastes is long over.

• "Our comments will be limited to mercury since that is the element of concern in K071
brine sludge, K106 sludges from wastewater treatment, and D009 wastes, including soil
and debris.

The mercury cell chlor alkali industry, including Pioneer, has had more than a five
year history of working with USEPA to establish regulations for mercury-containing
wastes which were achievable and fully protective of human health and the
environment. As far back as June 16, 1988, the Chlorine Institute submitted comments
to the Agency regarding K106 wastes. And, over $3 million was spent on research to
develop BDAT for K106 and D009 wastes to meet Agency regulations. Many more
millions have been spent constructing and operating thermal and non-thermal units to
meet what we believed was BDAT per already issued and in force regulations. The
above-mentioned research was necessary because EPA-promulgated BDAT was based
upon mercury ore mining operations, a much different operation than using chlor alkali
mercury-containing wastes.

Specifically with regard to K071 mercury cell process brine muds, BDAT regulations
have been in place for some time(since August 17, 1988) and the industry has the
operations in place to meet the containing wastewater. BDAT regulations have been in
place since June 1, 1990,. BDAT regulations are also in place for D009 wastes,
excluding soil and debris. However, on August 18, 1992, EPA promulgated rules for
newly listed wastes and hazardous debris which established, we believed, BDAT for
D009 debris.

If all of the above is true, then the regulations proposed on September 14. 1992 only
affect D009 soil. Or, said differently, the BDAT standards already promulgated by the

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Agency and being met by the industry stay in effect and the proposed regulations
(9/14/93) only affect D009 soil.

With specific regard to the proposed TCLP for soil of 0.009 mg/L (9 ppb). we do not
know of any BDAT which supports this number nor do we believe such a number is
realistic or necessary to protect human health and the environment. In fact, we have
been told by USEPA that the number comes from K061 wastes which do not even
relate to or contain mercury! We recommend that the level bet 0.025 mg/1 for the
TCLP, with a cap one order of magnitude above that." (Pioneer, CS2P-00104)

Response: EPA has developed an alternative standard for contaminated soils in this rule which
the Agency believes is achievable for all hazardous constituents, based on the information in
the Background Documents for contaminated soils. The final rule provides the option of
treatment standards for contaminated soils at 10 X UTS or 90 % reduction in total
concentration. There is also a risk-based variance available. These changes seem to meet the
commenters concerns. References include:

EPA 1998a, Soil Data Analysis: Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste, Arlington. Virginia. (RCRA Docket for
Phase IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled: "Derivation of Treatment Achievability Results for Organic
Functional Groups and Types of Compounds." April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase
IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled:"Additional Information on Treatability of Contaminated Soils
as Discussed in Section VTI.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E.
Labiosa and Rita Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil
Data Base Among Hazardous Constituents in Contaminated Soils and Other Implementation."
April 1998, from Jose E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1993a. August 1993, Final/Proposed Best Demonstrated Available Technology fBDAT)
Background Document for Hazardous Soil, Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)

• "In summary, we urge the Agency to leave BDAT's for mercury-containing wastes as
currently-promulgated and to establish the BDAT for mercury in soil as a TCLP of
0.025 mg/1, with a cap one order of magnitude above that, as was proposed by USEPA

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as one of the alternatives for soil." (Pioneer. CS2P-00104).

Response: See previous response.

5.G.5 Mineral Processing Wastes

• "In addressing hazardous soil issues. EPA must specifically address the unique issues
presented by mining and mineral processing wastes. As discussed in these comments.
these issues are both legal and technical in nature. EPA should clarify the definition of
hazardous soil and its contained-in policy to ensure that soils not contaminated with
Subtitle C waste (including soils with naturally occurring metals and soils contaminated
with Bevill wastes) are in no case deemed hazardous waste. Furthermore, soils
containing newly identified mineral processing wastes should not be subject to LDR
treatment standards before LDRs are promulgated for the newly identified mineral
processing wastes themselves.

Response: Other comment responses and the preamble to the final rule discuss the contained in
policy and its relationship to when LDR prohibitions and treatment standards affect
contaminated soils. The mineral processing wastes, and soils contaminated exclusively with
these wastes, are obviously not subject to LDR treatment standards and prohibitions before the
prohibitions and treatment standards are promulgated.

Asarco does not support the proposed LDR treatment standards for metal-bearing soils
and does not believe that EPA's technical data adequately support them. We are
particularly concerned that EPA's proposed treatment standards do not reflect the
nature and variability of metal-bearing soils, including those associated with mining and
mineral processing activities." (Asarco, CS2P-00166)

Response: EPA believes the standards for soils are achievable for the reasons set out in the
preamble and the Background Documents for contaminated soils. References include:

EPA 1998a, Soil Data Analysis: Analysis of Treatability Data for Contaminated Soil
Treatment Technologies. Office of Solid Waste, Arlington, Virginia. (RCRA Docket for
Phase rWHazardous Soils/F-98-2P4F-FFFF)

EPA 1998b. memorandum titled: "Derivation of Treatment Achievability Results for Organic
Functional Groups and Types of Compounds/' April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste. Arlington, Virginia. (RCRA Docket for Phase
FV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled: "Additional Information on Treatability of Contaminated Soils
as Discussed in Section VII.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E.
Labiosa and Rita Chow of EPA Office of Solid Waste, Arlington. Virginia. (RCRA Docket

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for Phase FWHazardous Soils/F-98-2P4F-FFFF.)

EPA 1998d. Amemorandum titled: "Extrapolation of Treatment Performance Data in the Soil
Data Base Among Hazardous Constituents in Contaminated Soils and Other Implementation."
April 1998. from Jose E. Labiosa of EPA Office of Solid Waste. Arlington. Virginia.
(RCRA Docket for Phase IV/Hazardous SoiIs/F-98-2P4F-FFFF.)

EPA 1993a, August 1993, Final/Proposed Best Demonstrated Available Technology (BDAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase H, Document Number CS2P-S0599)
EPA must consider a recent court decision that calls into question the applicability of
the Toxicity Characteristic Leaching Procedure to mining and mineral processing
wastes and how the decision relates to soil containing such wastes." (Asarco. CS2P-
00166)

Response: The preamble to the final rule discusses the Agency's decision to use the TCLP.
and the impacts of both the Edison Electric decision referred to by the commenter. and the
more recent Columbia Falls opinion.

5.G.6 PAHs

• "RETEC's performance data for PAH compounds indicates that the proposed hazardous
soil standards are set too low. RETEC could not consistently achieve the universal
treatment standard or the three alternative show treatment levels. Our data is
confirmed by EPA's own contractor ECOVA which conducted tests as part of the
SITES program.

The enclosed table (Table 3) shows that selected RETEC sites, which are in various
stages of treatability and full-scale operation, do not meet all of the individual PAH
alternatives for soil, yet are projects that are successful and considered protective of
health and the environment." (RETEC, CS2P-00026) [This comment has an attachment
with additional data related to soil. ]

Response: As stated hi response to other comments regarding performance of biological
treatment processes, the soil data base shows that this technology is among the most soil and
constituent specific treatment technologies available for the treatment of hazardous soils. The
technology will perform best for many compounds that are water soluble, amenable to
volatilization, and amenable to co-metabolization. (EPA 1993a, EPA 1998a, EPA 1998c. EPA
1994, and cited academic literature hi EPA 1998d.) For instance, many soluble and slightly
soluble compounds can be treated to the regime of concentrations established today. The soil
data base also shows that pentachlorophenols. less soluble polyaromatic hydrocarbons such as

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PNA's with four or more rings, aromatic chlorinated pesticides, and aromatic chlorinated
pesticides are resistant or recalcitrant to biodegradation processes. PCPs and four to five ring
PNAs are likely to biodegrade at slower rates: our data suggests that an average treatment
performance reduction ranges from 35% to 70%. This may or may not meet the 10X UTS
soil treatment standards for the constituents involved. Recalcitrant constituents may require
optimization of treatment processes, or additional treatment by another technology train such
as chemical dechlorination (e.g., for non-volatile chlorinated organic pesticides/solvents and
oily chlorinated organics such as PCB's and PCPs) or solvent extraction (e.g., for high
molecular weight PNA's and chlorinated organics).

EPA's findings with regard to the performance of bioremediation treatment processes (EPA
1993a. EPA 1998a, EPA 1998b. and EPA 1998d) are consistent with other bench-, pilot-, and
full-scale operation of bioremediation processes (EPA 1998a, EPA 1998d, HWTC 1993. and
EPA 1994). Based on these background documents, EPA has determined that the available
biotreatment performance data support the establishment of treatment standards for many
soluble polar organics. volatile aliphatic chlorinated/non-halogenated organics. non-
halogenated aromatic, polar organics such as ketones. alcohols, and low molecular weight
.PNA's.

References:

EPA 1998a, Soil Data Analysis: Soil Treatability Analysis of Treatability Data for
Contaminated Soil Treatment Technologies. Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF)

EPA 1998b, memorandum titled:"Derivation of Treatment Achievability Results for Organic
Functional Groups and Types of Compounds/' April 1998. from Jose E. Labiosa and Rita
Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket for Phase
IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998c, memorandum titled: "Additional Information on Treatability of Contaminated Soils
as Discussed in Section Vn.B.8. of Phase IV Final Rule Preamble." April 1998, from Jose E.
Labiosa and Rita Chow of EPA Office of Solid Waste, Arlington, Virginia. (RCRA Docket
for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1998d, Memorandum titled: "Extrapolation of Treatment Performance Data in the Soil
Data Base Among Hazardous Constituents in Contaminated Soils and Other Implementation."
April 1998, from Jose E. Labiosa of EPA Office of Solid Waste, Arlington, Virginia.
(RCRA Docket for Phase IV/Hazardous Soils/F-98-2P4F-FFFF.)

EPA 1994, October 1994, Remediation Technologies: Screening Matrix and Reference Guide.
Second Edition, Department of Defense/EPA Environmental Technology Council,
(EPA 542/B-94/013 or NTIS: PB 95-104 182)

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EPA 1993a. August 1993. Final/Proposed Best Demonstrated Available Technology (BDAT)
Background Document for Hazardous Soil. Office of Solid Waste, Arlington. Virginia.
(RCRA Docket for Phase H. Document Number CS2P-S0599)

EPA 1997a, October 1997, Treatment Technology Performance and Cost Data for
Remediation of Wood Preserving Sites. Office of Research and Development. Washington.
D.C.. 20460.
(EPA/ 625/R-97/009)

EPA 1993b, March 1993, Technology Selection Guide for Wood Treater Sites. OSWER
Directive 9360.0-46FS or EPA 540-F-93-020, Office of Solid Waste and Emergency Response.
Washington, D.C.

EPA 1993c, April 1993. Final Best Demonstrated Available Technology (BDAT) Background
Document for Universal Standards. Volume A: Universal Standards for Nonwastewater Forms of
Listed Hazardous Wastes. Office of Solid Waste, Washington, D.C. 20460

EPA 1995a, November 1995. Presumptive Remedies for Soils. Sediments, and Sludges at Wood
Treater Sites. OSWER Directive 9200.5-162, EPA 540/R-95/128, or NTIS: PB 95-963410.

HWTC 1993, November 1993, Evaluation of Proposed BDAT Soil and Process Treatment
Technologies — Report to the Hazardous Waste Treatment Council. ENSR Consulting and
Engineering, Document Number 3393-002., submitted to EPA by the Hazardous Waste
Treatment Resource Council. (See RCRA Administrative Record for Phase n rule, comment
number CSP00060-E).
5.G.7 PCBs

"EPA proposed two approaches for PCB contaminated soil treatment standards. The
first approach assigns individual treatment standards for various Aroclors. This
approach establishes soil treatment levels that are analytically difficult to measure.

A.G.A. member company experience indicates that there is frequently difficulty
achieving a 2 ppm detection limit with PCBs from natural gas pipelines because of the
matrix interferences from sulfur compounds and other pipeline liquid constituents.
When specific non-routing samples must be characterized to such low levels despite
interference problems, costs for a gas chromatography/mass spectrometry can be as
high as $1200 to $1500 per sample. Furthermore, since very few laboratories are set

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up to perform this analysis, it often takes 30 days to obtain results. Considering the
number of required samples associated with site clean-ups, this approach would be
unreasonable from both a cost and turn-around time perspective. Therefore, A.G.A.
believes that the proposed 0.92 me/kg and 1.8 mg/kg PCB treatment standards for soil
are unacceptable.

The second approach assigns a 10 mg/kg standard final treatment standards for PCB-
contaminated soils require meeting a level 10 X UTS or 90 percent reduction in total
concentration. Information in the Background Document to the final rule demonstrates
the achievability of these standards. (See responses to USWAG comments on these
issues as well.) (The American Gas Company, CS2P-00040)

Response: The final standard can be met by a level 10 X UTS, which is higher still than the
level the commenter indicates is achievable. There is also a risk-based variance available in
addition to the existing variance at 40 CFR 268.44. These would appear to meet the
commenter's concerns. Note also that the promulgated treatment standard for PCBs is
expressed as the total concentration of PCB isomers and congeners. See 40 CFR 268.48,
268.49.

8.G.8 Petroleum-Contaminated Media

• "Removing PCS resulting from above ground tanks and pipeline from RCRA hazardous
waste regulations will decrease treatment costs and increase active treatment activities.
The proposed regulations would simplify on site treatment using technologies that have
been proven for treating petroleum contaminated soils from UST sites." (Southwest
Soil Remediation, CS2P-00109)

Response: Comment noted.

5.G.9 TC Wastes

• "TC WASTE TREATMENT STANDARDS

Underlying constituents (IV.A.2)

The strategy of subjecting the TC and hazardous soils to treatment for all underlying
hazardous constituents causes waste analysis plan issues to be of concern. As discussed
above, waste analysis plan requirements for treatment and disposal facilities need to be
harmonized with the latitude provided generators to make characterization decisions. A
testing burden still resides with the treater to ensure appropriate LDR standards have
been met.

An even larger issue involves the Agency's authority to regulate "underlying

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constituents" in TC wastes. It is backhanded that the Agency is using its authority to
require the identification and treatment of constituents occurring at levels below
characteristic levels or that are not characteristic wastes at all . If the Agency believes
they are obligated to require the treatment of listed waste constituents in TC wastes, the
Agency should promulgate all the hazardous constituents on the F039 or UTS lists into
§ 261 as TC constituents." (Dow Chemical Company, CS2P-00067)

Response: See preamble to final rule and other comment responses which indicate why EPA
adopted the final rule approach for underlying hazardous constituents in contaminated soils and
for TC wastes.

5.G.10 Zinc

• "What AZA is having difficulty comprehending is how the stated intent of merely
combining existing lists can be squared with such statements as the following for
characteristic wastes:

"The treatment standards proposed for these wastes include standards for
'constituents subject to treatment' (i.e.. any regulated constituent present at
levels above the universal constituent-specific treatment standards..." FR at
48113.

Similarly with respect to hazardous soil, the proposal seems to indicate that

"hazardous soil would be treated for each constituent subject to treatment...The
Agency is proposing to define constituents subject to treatment as any regulated
constituent found on Table UTS in today's proposed § 268.48, that is present at
levels above the universal constituent-specific treatment standards." FR at
48123.

AZA believes that any attempt, if one there be, to expand the proposal beyond the mere
combining of existing lists— as is EPA's expressed intent— is improper. There has
been no case made for the need to treat zinc broadly as a hazardous constituent."
(AZA, CS2P-00032)

Response: Zinc is not an underlying hazardous constituent in general, but is only part of the
treatment standard for K061. The K061 standard was adopted in a prior rulemaking and is not
reopened by this rulemaking.

• "These regulations establish a "Universal Treatment Standard" ("UTS") for zinc and
require that regulated material be treated to meet zinc's UTS under three
circumstances: (I) if zinc is a listed "constituent of concern" in a hazardous waste
stream: (ii) if zinc is found in soil that is hazardous (for reasons having nothing to do

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with zinc), the soil must be treated until both its hazardous characteristic is eliminated
and the soil's zinc content meets zinc's UTS: and (hi) if a toxic characteristic waste
containing zinc is managed outside the Clean Water Act f'CWA") and the Safe
Drinking Water Act ("SDWA"), the zinc UTS must be met even though zinc neither
caused nor exacerbated the waste's toxic characteristic.

The Independent Zinc Alloyers Association strenuously objects to these proposals
because zinc is not now. and never has been considered a hazardous substance. See
attachment A.

Thus. EPA's proposed UTS and the proposed regulations requiring that the UTS for
zinc be met in either cleaning up hazardous soil (when zinc has nothing to do with the
soil being considered hazardous) and in remediating a toxic characteristic waste is also
arbitrary and capricious, and an abuse of EPA's discretion." (Independent Zinc
Alloyers Association, CS2P-00082)

5.H OTHER COMMENTS RELATED TO SOIL TREATMENT

5.H.1 Notification, Certification, and Recordkeeping

• "Assuming that proposed 40 CFR 268.7(a)(10) and (a)(ll) are finalized, items should
be added to the table addressing the notification, certification and recordkeeping
requirements for generators who determine they are managing hazardous soil that does
not meet the treatment standards, or can be land disposed without further treatment as
indicated by these subsections, respectively." (Department of Energy, CS2P-00043)

Response: The recordkeeping requirements associated with contaminated soil subject to the
LDRs have been clarified in today's final rule.

• "Another circumstance where process knowledge would be appropriate for
characterizing the waste might involve hazardous soil or debris contaminated with a
listed waste having characteristics that are generally consistent and well documented."
.(Department of Energy, CS2P-00043)

Response: EPA agrees that it is appropriate to apply process knowledge to decisions about
treatment requirements for contaminated soil. In particular, for soil contaminated by listed
hazardous waste, process knowledge and knowledge of the listed waste, can be applied to
determine the underlying hazardous constituents reasonable expected to be present.
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• "DOE also requests that EPA reconsider its statement in the preamble to the proposed
rule that, "once the [characteristically hazardous soil] is no longer hazardous, however.
the only further recordkeeping and documentation required is set out in 40 CFR 268.9"
(see 58 FR 48134). In many cases, contaminated soils (and other contaminated media
such as surface water and groundwater) will be treated on-site or in-situ (especially now
that the corrective action management unit (CAMU) option is available) as opposed to
being sent to a RCRA Subtitle D facility. Furthermore, contaminated environmental
media usually results from spills as opposed to a "process or operation generating the
waste." As such, the notification and recordkeeping requirements under 40 CFR
268.9(d) are inappropriate for hazardous soils and other media. Therefore, given the
adequacy of the notification requirements proposed under 40 CFR 268.7(e), DOE
suggests that explicit language be added to 40 CFR 268.9 excluding environmental
media from the requirements of that section." (Department of Energy, CS2P-00043)

Response: EPA has clarified the recordkeeping requirements associated with contaminated soil
in today's final rule. The Agency does not agree that recordkeeping and notification
requirements under 40 CFR 268.9(d) are. necessarily, inappropriate for contaminated soils.

5.H.2 Cost

• "G. Cost

When all factors are considered, the cost of incineration is comparable or less than
most of the innovative technologies. It is important to consider all costs when
evaluating relative treatment economics. Costs such as residuals management, air and
water pollution control, capital, utilities, labor, and mobilization must be factored in.
The table below presents the relative costs of these technologies as extracted from the
attached technology reports, for contaminated soil containing relatively the same levels
of hazardous constituents.
TECHNOLOGY TREATMENT COST fS/TON)

Biotreatment $25 to $200
Thermal Desorption $135 to $600
Vitrification $40 to $1000
Soil Washing $40 to $300 (not including residuals)
Chemical Extraction $40 to $300
SVE $50 to $150
Infrared Thermal Treatment $125 to $400
Thermal Destruction $ 300 to $600
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The thermal destruction costs are fixed in this range. However the costs for the other
innovative technologies can easily exceed the levels cited above, if air emission controls
are required or if the residuals generated must be sent off site for BDAT treatment. It
is hard to average out these factors since remedial situations vary greatly. For
example, the cost of management of residuals from soil washing or chemical extraction
can be as high as the cost of initial separation, if the volume of hazardous residuals
generated is high. This is a commonly encountered experience.

Note that these costs do not include all factors, and assume that the innovative
technology is fully compatible with the matrix and is easily amendable to the
constituents of concern. Because of a wide variety of physical and chemical factors.
actual treatment costs can be substantially higher for the innovative technologies, as
more stages of treatment and increased residence times are required. The costs of
thermal destruction cited in the table above, assumes the same level of contamination
that is amendable to the innovative technologies. More highly contaminated soil,
particularly with high levels of halogenated organics. may result in costs as high as
$1100 per ton. These highly contaminated soils would, for the most part, not be
amenable to the innovative technologies.

The above data supports the experience of many remedial contractors who have found
that costs of thermal destruction is often less than or equal to many innovative
technologies. For the reasons of economics, technical effectiveness, superior
environmental performance and the known end point for complete treatment thermal
destruction technology must continue to be viewed as BDAT treatment for soil, along
with allowing for use of other technologies that meet the requisite level of soil, along
with allowing for use of other technologies that meet the requisite level of performance
demonstrated by the best technology. Such a policy will preserve the integrity and
progress of the LDR program." (Hazardous Waste Treatment Council, CS2P-00060)

Response: On April 26. 1996, in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90% reductions in constituent concentrations or ten times the universal
treatment standard, whichever is higher. This treatment standard is being promulgated today.
The economic impacts of the 90% capped by lOxUTS treatment standards are discussed in
detail in the economic impact analyses prepared to support the 1996 proposal and today's final
rule.

• "The estimated costs for complying with the proposed rules are unrealistically low.

The recently completed National Petroleum Council Study found that the cost to
refineries of current federal rules is on the order of $37 billion dollars. This is for an
industry with a 'book value" of only $31 billion, and a current return on investment of
approximately 4 %. These numbers were based upon the assumption that currently non-
hazardous Solid Waste Management Units or SWMU's could be closed by being

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capped in placed. The report finds that:

However, if the 187 refineries decided to close the SWMU's and remove the hazardous
waste and incinerate the waste, an estimated one-time capital cost of $85.1 billion
would be incurred, (see page 5-23 of Section n.)

This is a tremendous cost to the industry, more than tripling the expenditures needed to
comply with current federal rules. Notes also that this includes excavating and
incinerating only the hazardous waste. If contaminated soil must also be excavated and
incinerated. The report finds:

Case B is also a contaminated soil removal case. However, the soil is assumed to be
hazardous waste and, therefore, it would be incinerated offsite. The 187 refineries
under the Case B assumption could incur an incremental one-time cost of about S83.59
billion over the Base Case. (See page 5-24 of the section El).

The proposed rules will, in effect, require refineries to spend over SI68 billion dollars.
to remediate sites. This is much higher than the cost estimates given by EPA in the
proposed rule, and it is doubtful that there are benefits which even approach such costs.
Therefore, the proposed rules are unreasonable, and should be revised to reflect risk,
real-world costs, and to provide some measurable benefit to society. Thank you for the
opportunity to comment on these proposed rules. Please contact me at 612 437-0645
should you have any questions." (Koch Industries Inc., CS2P-00135)

Response: On April 26, 1996, in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90% reductions in constituent concentaitons or ten times the universal
treatment standard, whichever is higher. This treatment standard is being promulgated today.
The economic impacts of the 90% capped by lOxUTS treatment standards are discussed in
detail in the economic impact analyses prepared to support the 1996 proposal and today's final
rule.

• "H. Cost Impact

Table 1 lists our facilities and routinely generated wastes which will be impacted by
this rule. OxyChem estimates 7500 T/yr of wastes will impacted with a minimum
incremental cost increased of $6,000.000/yr. These estimates are based on the only
currently readily available technology of incineration. This analysis assumes that
characteristic metal wastes and CWA wastewater treatment systems are not covered by
this rule.

Table 2 (A-D) lists impacts on forecasted remediation projects of $38,700,000 for
72,000 tons soil to meet Option 2 of the soil proposal (lOx UTS). If this proposal had
been in effect for the past two years. Table 2 (E-G) indicates costs would have

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increased by S52.300.000 fro 139.000 tons to accomplish the same remediation project.
Similar substantial cost impacts are predicted for future (as yet undefined) corrective
action and Superfund remediations." (Occidental Chemical Corporation, CS2P-00143)

Response: On April 26. 1996. in the HWIR-Media proposal. EPA proposed a revised soil
treatment standard of 90% reductions in constituent concentaitons or ten times the universal
treatment standard, whichever is higher. This treatment standard is being promulgated today.
The economic impacts of the 90% capped by lOxUTS treatment standards are discussed in
detail in the economic impact analyses prepared to support the 1996 proposal and today's final
rule.

5.H.3 Composite versus Grab Samples

• "A preference for composite samples is particularly appropriate for heterogenous wastes
such as contaminated soil. Grab samples of contaminated soil can exhibit a wide range
of values, from the highest value of a contaminant to non-detect. A few grab samples
of contaminated soil are equally likely to understate or overstate the presence of
hazardous constituents. Moreover, the compositing of samples helps to reduce
sampling and analysis costs because fewer samples are required to define the waste and
a broader spectrum of materials is being analyzed. Id. at nine-8. As a result.
generators will typically use composite sampling.

Regardless of the superiority of composite sampling for waste characterization. EPA
has previously stated that will use grab samples to enforce the treatment standards, Fed.
Reg. at 22,539 and 22,689, thereby forcing treatment and disposal facilities themselves
to use grab samples in their analyses. These sampling methods are not complementary:
that is, random grab samples are not an accurate check on the validity of an analysis of
the whole using composite sampling. With a heterogenous waste, such as soil where
the potential to find hot spots exists, different sampling methods will only lead to
differing results. Thus, the use of grab samples by disposal facilities creates the
potential for conflicts between the disposer and the generator who (justifiably) has used
composite samples to characterize the waste. The use of grab samples by regulators
could lead to disputes with even more serious consequences.

For example, a generator using composite samples may find that contaminated soil as a
whole is not a hazardous waste. Subsequent "corroborative" grab sampling by a
disposal facility may reveal a "hot spot" in the soil that fails the toxicity characteristic
test. The results of this grab may not be at all representative of the waste as a whole.
Indeed, what has happened is that the analytic procedure required by EPA for land ban
purposes has also become, in the hands of treatment and disposal facilities, a check on
the generators' characterization of the waste. Thus, as a practical matter, the
requirement that waste be characterized based upon a representative sample has been
vitiated. EPA should eliminate this conflict by requiring composite sampling for both

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generators and treatment and disposal facilities, as well as by regulators." (General
Electric Company. CS2P-00076)

Response: As explained at length in the preamble and I other comment responses. EPA is
basing the treatment standards on performance of technologies whose performance is measured
by grab sampling, and this is the appropriate means of enforcing the standards. In addition,
the LDR program is designed to assure that all of the waste is treated, not just some composite
portion of it. Basing compliance on grab sampling is the best means of assuring that this goal
is achieved.

• "Uniroyal Chemical questions the appropriateness of a grab sample for analysis of
hazardous soil hazardous constituents. Hazardous soil generation is often the result of a
spill. It is not clear how the specified sample method, "grab," would be implemented
in conjunction with the proposed alternative treatment method three for hazardous soils.
Will the generator be allowed to determine the sampling sites and number of grab
samples appropriate for quantification? Is it anticipated that a generator of a large spill
would segregate his hazardous soils into varying hazardous constituent levels for
implementation of the 90% removal criteria? There is a large body of guidance from
EPA on soil sampling and girding techniques. Uniroyal Chemical believes that EPA
should evaluate its other programs such as the proposed Subpari S on corrective action,
Superfund site management, and RCRA closure activities and consider their relevancy
to the specified proposed hazardous soil sampling method." (Uniroyal Chemical
Company, Inc., CS2P-00140)

Response: As explained at length in the preamble and I other comment responses. EPA is
basing the treatment standards on performance of technologies whose performance is measured
by grab sampling, and this is the appropriate means of enforcing the standards. In addition.
the LDR program is designed to assure that all of the waste is treated, not just some composite
portion of it. Basing compliance on grab sampling is the best means of assuring that this goal
is achieved.

5.H.4 Treatment Standards for Residues from Soil Treatment (see Chapter 15)

Response:

• "With reference to section 3. Treatment Standards for Residues from Soil Treatment.
the Agency should be supported in its proposed amendment to RCRA section 3004(n)
standards for organic and metal emissions from the combustion of hazardous waste in
incinerators, boilers and industrial furnaces. The standards should be made extremely
strict in order to adequately control all pollutants, especially dioxins and paniculate
matter." (Biogenesis Enterprise Inc., CS2P-00180)

Response: The standards for boilers and industrial furnaces are not the subject of today's final

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rulemakins.
"The Agency's Decision to Continue to Apply Soil Standards to Soil Treatment
Residues is Wrong

Assuming the Agency inappropriately elects to adopt arbitrary standards for soils, the
EPA should refrain from applying the special relaxed soil standards to any treatment
residues other than the treated soil. EPA justifies its proposed standards on the claims
that soil is different from other, ordinary, hazardous wastes and that soil should not be
incinerated because it typically contains low or moderate levels of hazardous
constituents. This rationale loses any force it might have regarding soils when applied
to process wastes generated by treating soils. Such wastes are likely to contain
constituents at concentrated levels compares to those evident in the original
contaminated soil. Thus, residues are more likely to resemble the "hot spots" that the
EPA believes should be treated to meet BDAT standards.

Since the residues are. in effect, a process waste, there is no reason to apply any
standards other than the process waste standards. The fact that a residue is " soil-like"
is an insufficient basis to conclude that the soil standards apply. Other than the treated
soil itself, there is no potential argument that the residue stream will be so voluminous
as swallow up all of the available treatment capacity in America (an argument that has
ben advanced concerning). Nor is there any rational reason of national policy to
encourage retaining the concentrated residues from soil treatment at the generating site.
In short, residues cease to exhibit the claimed extraordinary properties that underlie the
special standards for soils. There is no reason to treat them extraordinarily.

Furthermore, we are deeply concerned that the Agency's impenetrably confusing
proclamation that "soil-like" residues will remain subject to the soil standards will have
unintended harmful consequences. Reading carefully the EPA's confusing explanation.
it appears that the a residue will be "soil-like" when it is "more appropriately treated by
[some so-called innovative technology]. Unfortunately the answer is more confusing
than the question. Moreover, it is unclear who makes the determination whether a
residue is soil-like or where a residue would be more appropriately treated by an
"innovative" technology. Based on the Agency's explanation, this latter determination
need not be connected to the original justification for affording the soil special
treatment. Thus, the residue can be manages under less protective standards provided
the decision-maker can say, for example, "Gee. I really think thermal desorption is
appropriate for this residue." This sort of unprincipled decision-making is completely
inappropriate given Congress' and the courts' recognition that HSWA, in strict and
undeniable particular, aims to assure we place public health protection above other
concerns. The agency should take special note of the scope of its decision in this
regard. Not all matters involving application of the proposed soil standards will be
staffed by on-scene coordinators and environmental professionals well-versed in the

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intricacies of unwritten Agency policy. Perplexing explanations such as that in the
proposal, tend to create broad, unenforceable exemptions in application. For example.
based on USPCI's experience with generators applying regulations, we predict that the
Agency policy will engender a spate of instances where generators have mixed (or
failed to adequately separate) materials like impoundment sludge or collected product
from a spill with soil to enjoy the relaxed soil standards. This will happen although the
Agency never intended this result. In actual practice, questions are never as simple as
characterized by the Agency when it asserts that it believes people will not mix wastes
in violation of the law.

We believe that clarity is required to avoid such unintended harmful consequences.
The EPA can best achieve clarity by recognizing that the soil standards are appropriate.
it at all. for soils and for no other wastes. The only residue, if any, that should enjoy
the soil standards is the treated soil itself." (USPCI. CS2P-00171)

Response: We believe this comment represents a mis-understanding of the 1993 proposal.
however, consistent with the commenter's recommendation, in today's final rule EPA requires
that non-soil treatment residuals be treated to comply with the applicable universal treatment
standards in lieu of the soil treatment standards.

• "Treatment Standard for Residues from Soil Treatment (58 FR 48126)

All residues from treatment of hazardous soil should be subjected to the UTSs for
hazardous soil.

The Agency is proposing three alternative approaches to treating hazardous soil with
higher treatment levels of constituent concentrations than the UTSs. Yet the Proposed
Rule states that, with the exception of "soil-like residue." any residue form the
treatment of soil would be subject to meeting the UTSs. This applies to non-
wastewater residue as we as hazardous wastewater residue. This is inconsistent with
current regulations. 40 CFR § 261.3. The mixture and derived from rule states that
wastes that are derived from the treatment of a hazardous waste are considered to be
that waste. AWPI urges EPA to correct this oversight and, if soils are to be regulated
as hazardous soils, require treatment of residues using the same UTS's as are required
for the hazardous soils." (American Wood Preservers Institute, CS2P-00047)

Response: The Agency continues to believe that non-soil residuals from treatment of
contaminated soil should be subject to the applicable universal treatment standards (rather than
today's soil treatment standards). This issue is discussed, in detail, in the preamble to today's
final rule.

5.H.5 Ease Burden of On-site Waste Management
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• ''If it is EPA's intent to require the appiication of LDRs to petroleum contaminated
media. EPA should ease the burden of managing soil on-site. Soils are often generated
in sudden and large quantities. Characterizing soil from an excavation can be time
consuming and can require a large number of roll-off bins for storage. The
complexities of moving, storing, and managing these bins is often prohibitive and
results in disposing of non-hazardous oil as hazardous using worst case assumptions.
The expected costs of such management are part of what prevents projects involving
oily soil from getting off the ground.

To alleviate this, EPA should allow longer onsite holding times (i.e. 180 days) in order
to characterize and determine appropriate reuse and disposal options for contaminated
soils. Also, EPA temporary storage of larger quantities of soil. The characterization
area should be allowed provided that it is made with a concrete, asphalt, or plastic base
to hold soil for no more than 180 days, that the soil is covered with plastic and all run-
on/run-off is contained, and that there are weekly inspections for integrity. The
containment building permit and construction is too onerous for many soil
remediations.

Bringing in technology for onsite treatment can be slowed by the permitting process.
Onsite treatment of soils should be allowed with a minor one time permit modification
negotiated with state followed by a letter of notification when technologies are brought
in. Permitting requirements are otherwise too onerous to bring in on-site treatment."
(The Chevron Companies. CS2P-00182)

Response: Today's final rule does not address on-site waste management requirements other
than LDR treatment standards. The Agency notes that existing flexibility for on-site
management of contaminated soils and other remediation waste, including opportunities for
longer on-site holding times, is provided in the corrective action management unit regulations
at 40 CFR 264.552.

5.1 RELATIONSHIP TO OTHER PROGRAMS (see Section 27.A)

5.1.1 HWIR Roundtables

• "We should point out that the HWTC's position on soil BDAT is consistent with its
position in the HWIR Roundtables.

In the HWIR discussions, a "hot-spot/cold spot" strategy has generally been agreed
upon for contaminated media. Under this strategy, highly contaminated soils ("hot
spots") would be subject to BDAT treatment standards for soils; lesser contaminated
soils ("cold spots") would only be subject to state regulations.

Thus, the treatment standards for soils established by the Phase n LDR regulation

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would be applicable to the soil "hot spots" under HWIR. The approach to soil BDAT
which we recommend above would apply to the HWIR 'hot spots'." (Hazardous Waste
Treatment Council. CS2P-00060)

Response: EPA is not. at this time, taking action on the portion of the HWIR-Media proposal that would
have established a "bright line" to distinguish between higher- and lower-risk contaminated media, including
contaminated soil. The alternative soil treatment standards promulgated today will apply to all hazardous
contaminated soil and will require treatment for all underlying hazardous constituents that are reasonably
expected to be present in contaminated soil when such constituents are found at initial concentrations greater
than ten times the universal treatment standard. If. in the future. EPA takes action to establish a bright line.
EPA will address concerns regarding the relationship of the bright line to the alternative soil treatment
standards and contamed-in determinations, as necessary, at that time.

5.1.2 Applicability of LDRs to Soils Undergoing Remediation under
RCRA or CERCLA

• "BN believes that the application of RCRA standard, including land disposal restrictions
to environmental media (soils, ground water, rubble and other material related to
corrective action and remediation) as proposed by the EPA is not appropriate, overly
conservative and results in unnecessary delay and expense to both government and
industry in our efforts to clean up contaminated sites and facilities." (Burlington
Northern Railroad, CS2P-00148)

Response: Many commenters expressed the concern that application of LDRs to remediation waste.
including contaminated soil, was overly complex and would present impediments to remediation. The
majority of these commenters suggested that EPA simply exempt the majority of remediation wastes.
including contaminated soil, from a duty to comply with LDRs.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking. the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is no legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and otiier hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over die current practice of
applying the treatment standards developed for pure industrial hazardous waste.

• "EPA should clarify that excavating, staging and returning soil to that excavation is not
"management" and does not trigger the LDRs or other RCRA requirements." (Rohm
and Haas Company. CS2P-00114)

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• "Rohm and Haas operates several plants that have been heavy manufacturing sites for
many years. Some of the soils at these plants may have been contaminated from past
manufacturing operations by chemicals that are listed hazardous waste when disposed.
or may be contaminated at levels above the toxicity characteristic. The contamination
may also be associated with a waste management facility, such as a surface
impoundment or container storage area. Rohm and Haas has programs in place at its
facilities to investigate and manage the soils and groundwater in a manner that compiles
with the law and makes good environmental and engineering sense.

However, Rohm and Haas often must temporarily excavate contaminated soils to reach
underground infrastructure for maintenance or construction. The most sensible and
environmentally protective management protocol would be to stage the excavated soils
near the work site in piles or bulk containers, protected from precipitation by a liner
and cover. Most of the soil could then be returned to the excavation as backfill where
the peripheral soils are of a similar contamination. Excess soils would be managed in
accordance with RCRA. The alternative of treating and dispensing of all the excavated
contaminated soil and backfilling with clean soil simply makes no sense where the
surrounding soil is contaminated. The new. clean backfill will simply become
contaminated, which adds to the ultimate volume of contaminated soil that must be
remediated and landfilled.

Rohm and Haas seeks clarification that the excavation and return of contaminated soils
as outlined above does not constitute "management" triggering the Land Disposal
Restrictions or other RCRA requirements.

EPA addressed a similar situation in a letter from Sylvia Lowrance to Douglas H.
Green dated June 11, 1992. A copy of that letter is attached hereto as Appendix B.
There. EPA stated that the excavation does not "produce" hazardous waste, and
therefore RCRA requirements do not apply. EPA should clarify that this interpretation
is not limited to excavations conducted on public roadways, as implied on the June 11
letter, but also applies to excavation and backfilling in manufacturing facilities."
(Rohm and Haas Company, CS2P-00114)

Response: EPA agrees that, under the area of contamination policy, provided excavation,
staging, and replacement activities occur within an area of contamination, LDRs and other
RCRA requirements are not triggered. The area of contamination policy is not affected by
today's rulemaking. To reduce confusion over this issue the preamble to today's final rule
includes a detailed discussion of when LDRs apply to contaminated soil, including a discussion
of the area of contamination policy.

• "APPLICABILITY OF RCRA LDRs TO CONTAMINATED MEDIA
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EPA's proposed hazardous soil treatment standards "would apply to soils contaminated
with listed hazardous wastes, soils displaying the toxicity characteristic, and soils
displaying the characteristic of ignitability, corrosivity, or reactivity." As EPA
explains, such soil "can be generated from a wide variety of activities, including
remedial actions at Superfund and RCRA corrective action sites, and spills at
manufacturing sites."

EPA should not apply LDRs at sites begin addressed under Superfund or other federal
or state authorities or oversight. These programs are specifically designed to protect
human health and the environment, and EPA should defer to these programs for
making decisions about soil management. Applying RCRA LDRs will unnecessarily
add to the costs of remedial actions and the requirement to meet the LDR treatment
standards - regardless of whether they make sense in a specific remediation situation -
will hinder remediation. Soil management may take up a larger portion of total site
remediation funds than it generates in corresponding benefits, and certain options (e.g..
those involving movement of soil) may be rendered infeasible if LDR treatment
standards are imposed. The end result will be detrimental rather than beneficial to
human health and the environment. EPA also should ensure that LDRs are not applied
in a manner that would delay cleanup of spills at operating sites.

In promulgating the RCRA toxicity characteristics (TC) rule, EPA deferred the .
applicability of the rule to contaminated media and debris generated during
underground storage tank (UST) corrective actions. One of the main reasons EPA took
this action was that imposition of Subtitle C requirements had the potential to impede
UST cleanups. EPA has since proposed to exempt contaminated media generated
during UST corrective actions from the TC." EPA can draw a similar conclusion with
respect to application of the LDRs to Superfund sites and other remediation sites; the
RCRA requirements have the potential to interfere with remediation. For example,
remediation could be hindered if the economic feasibility of alternatives is affected due
to added costs to meet LDR treatment standards. In the proposal to exempt media UST
contaminated media from the TC, EPA stated that it believes state agencies are
currently managing UST-contaminated media in manner that protects human health and
the environment, and that it is therefore unnecessary to subject these materials to
Subtitle C control. Similarly, soils from sites being remediated with the oversight of
relevant authorities are being managed in a manner protective of human health and the
environment, EPA should allow these remediation activities to proceed under the
relevant authorities without imposing generic LDR treatment standards under RCRA.

We encourage EPA to reconsider the issues of applicability of LDRs to Superfund sites
and other remediation sites and spill cleanups being addressed under other federal and
state authority or oversight. The HWTR process presents an opportunity for EPA to do
this. At the very least, therefore, EPA should suspend the applicability of LDRs for
hazardous soil at such sites while the HWIR process continues." (Asarco, CS2P-
5-31

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00166)

• "Asarco believes that EPA should not apply RCRA LDRs to any soils at Super-fund
sites or other remediation sites and/or spill cleanups being managed under the auspices
of other federal or state authorities or oversight. Instead, soil management decisions
should be made on a site-specific basis by the authorities overseeing remediation or
cleanup activities at the site. This will maximize benefits to human health and the
environment by promoting feasible decisions made with a particular knowledge of the
conditions at a specific site. At a minimum, EPA should suspend applicability of the
RCRA LDRs for hazardous soils at Superfund and other sites being addressed under
federal or state authorities or oversight while it continues to address the issue of soil
management through the HWIR process." (Asarco, CS2P-00166)

The Agency shares concerns that application of LDRs to Hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking, the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is not legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste.
"The structure and rigidity of RCRA Subtitle C management standards and Land
Disposal Restrictions are not intended nor suitable for remedial actions. LDRs and
other RCRA standards promote "dig and burn" alternatives for contaminated soils.
when treatment and reuse may often be more appropriate. Management and
remediation of contaminated groundwater is even more flexible under the current
regulatory scheme." (Conoco. Inc.. CS2P-00177)

"The structure and rigidity of RCRA Subtitle C management standards and Land
Disposal Restrictions are not intended nor suitable for remedial actions.

Conoco believes that remedial actions can best be achieved by tailoring alternatives to
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site specific conditions. The decision to remediate and the degree to which remediation
is required should be based on site specific conditions and real risks to human health
and the environment. Most remediation programs of today are conducted under State
and/or Federal oversight and typically incorporate public review and comment. Such
scrutiny assures that appropriate remedial actions will occur.

In contrast the current Land Disposal Restrictions program is a technology-based
program. The BDAT treatment standards, whether expressed as concentrations in the
waste, concentrations in the waste extract or as specific technologies, are primarily
based on combustion technology. This scenario does not offer the flexibility required
to effectively achieve the goals of today's remedial programs. EPA is working
vigorously to resolve the unique issues surrounding remediation of contaminated media
through a number of ongoing activities including the HWIR Roundtable. the New York
Petition and petroleum contaminated media exclusion, and RCRA Corrective Action.
EPA should defer land disposal restrictions for contaminated soil and other media until
EPA has resolved these overlapping issues." (Conoco. Inc.. CS2P-00177)

Response: Many commenters expressed the concern that application of LDRs to remediation \vaste.
including contaminated soil, was overly complex and would present impediments to remediation. The
majority of these commenters suggested that EPA simply exempt the majority of remediation wastes.
including contaminated soil, from a duty to comply with LDRs.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking, the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming. EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is not legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste.

• "CERCLA as amended by the Superfund Amendments and Reauthorization Act
(SARA)

How will EPA address background concentrations for naturally occurring constituents
during cleanup activities?

A description of action between UTS and cleanup activities involving soil removal
should be included in the final rule. Since the UTS includes contaminants such as
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metals that can be naturally occurring, will a facility have to treat the soil below
background concentrations for the naturally occurring constituents? If so. this should
be addressed. EPA should also describe what would constitute adequate documentation
for background evaluations." (Westinghouse Electric Corp., CS2P-00115)

Response: In consideration of this and other comments. EPA has concluded that treatment to comply with
the soil treatment standards should not be required if constituent concentrations fall below naturally occurring
background concentrations, provided the soil will continue to be managed on site or in an area with similar
natural background concentrations. If soil will be sent for land disposal off-site, compliance with the
alternative soil treatment standards is required, since the Agency believes that natural background
concentrations on-site will hot automatically correspond to natural background concentrations at a remote
land disposal facility.
The Agency notes that natural background concentrations are constituent concentrations that are present in
environmental media which has not been influenced by human activities or releases. Since these constituent
concentrations are present absent human influence and EPA has determined that soil (like other
environmental media) is not. of itself, a waste but may be regulated as hazardous waste under RCRA only
when it contains ('or contained) waste. EPA is not convinced the Agency would have the authontv to require
compliance with LDR treatment standards when constituent concentrations fall below background
concentrations even if it felt compelled to do so. (Of course, such constituents could be regulated as
hazardous constituents under cleanup authorities, including RCRA corrective action and other authorities.)

Since background concentrations may vary across geogograpluc areas, and to ensure that the LDR soil
treatment standards will only be capped at background where appropriate. EPA will require that individuals
who wish to cap LDR treatment at natural background concentrations apply for and receive an LDR
treatment variance. EPA will presume that when the soil treatment standards would require treatment to
concentrations that are less than natural background, such a variance will be appropriate, based on the finding
that it is inappropriate, for contaminated soil, to require treatment to concentrations less than natural
background concentrations.

• 'However, the application of the RCRA regulations to the management of
environmental media contaminated with hazardous wastes has not been successful. In
fact EPA's management of the CERCLA program and the implementation of the
RCRA corrective action program have both been stymied by EPA's current approach to
applying to RCRA regulations of the one time generation of contaminated media related
to clean up efforts.

EPA recognizes that the nature of contaminated media is different from the hazardous
wastes with which they are contaminated. The risks associated with the contaminated
media are significantly lower than the risks associated with the hazardous waste because
of lower toxicity and mobility and the one time nature of the generation. BN's waste
minimization efforts are not effective when applied to cleanup-related contaminated
media. BN has no pollution prevention choices for the management of these wastes
since the clean up activities are being driven by the same environment regulatory

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programs that encourage and force waste minimization. The past practices that caused
the contamination are not controllable. For all of the above reasons. BN believes the
EPA's current application of RCRA and its related land disposal restrictions to
contaminated media is fruitless and the agency should look for other alternatives to
insure that contaminated media are managed in a protective manner.

BN believes that, from risk management perspective, the continued land disposal of
contaminated media (soils) into highly engineered and regulated hazardous waste land
disposal facilities should not be subjected to the land disposal restrictions. The
hazardous waste contained in the environmental media is typically at very low
concentrations and the minimum technical requirements (double liners and leachate
collection) that are applied to these facilities eliminate any risk associated with their
land disposal. The requirement to 1) treat contaminated media to very low levels that
are highly protective without any further containment and then 2) place them in a
facility which itself is designed to eliminate any possibility of migration, is overly
conservative and is "beyond the point at which there is no 'threat' to man or nature."
More importantly the land disposal restrictions were designed to discourage the land
disposal of hazardous waste and to encourage waste minimization and other treatment
alternatives. EPA and industry both agree that those management alternatives are not
applicable to the one time management of remediation related contaminated media and
that the technologies (incineration) normally identified for BDAT are not applicable to
contaminated media." (Burlington Northern Railroad, CS2P-00148)

The Agency shares concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking, the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is not legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste.

• "Asarco is interested in the proposed LDR rulemaking and any other EPA actions that
would affect management of soil at Superfund sites. RCRA corrective action sites,
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remediation sites being addressed under similar state authorities or state oversight.
voluntary remediation activities, and spill cleanup activities. Asarco's objective in this
respect is that any containment, treatment, or other necessary action related to the
management of soils be accomplished in an expeditious and cost-effective manner that
protects human health and the environment. One of Asarco's critical interests in this
matter is that any related EPA decisions take into consideration the unique nature (from
both legal and technical standpoints) of soils at mining and mineral processing sites or
associated with mineral processing activities. Consistent with these general positions,
Asarco offers a number of specific comments on EPA's LDR proposal for hazardous
soil in this document, which are summarized briefly here:

• EPA should not apply RCRA LDRs to soils at sites being remediated under
other federal or state authorities or oversight (particularly Superfund); decisions
about how to manage soils at these sites can and should be made on a site-
specific basis. EPA should suspend applicability of the LDRs to soils while
HWIR efforts proceed." (ASARCO, CS2P-00166)

The Agency shares concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking, the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is not legislation.
EPA may choose to take additional regulator,' action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste.

5.1.3 Corrective Action Management Units (see Chapter 17)

• "EPA Should Extend the CAMU Concept to Voluntary Corrective Actions.

Voluntary remediations are fast becoming the preferred procedure for remediation of
older industrial sites and sites undergoing expansion, renovation, or installation of new
processes. Many of the sites that use or would use voluntary remediations are not
currently subject to RCRA corrective action nor would they be subject to CERCLA
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remediation. EPA has asked industry as a whole to voluntarily remediate sites and has
offered either through state agencies or EPA to oversee these sites. Many states, such
as Illinois, have good existing voluntary remediation programs that encourage sites to
clean up. The major difference between a voluntary remediation and one under RCRA
corrective action is the flexibility afforded in the voluntary remediation and the
timetable allowed for the clean-up. Voluntary remediations often use more innovative
methods and technology. Most states closely monitor the voluntary remediations.
Since there is little if any technological or methodological difference between the
voluntary and enforced remediations or corrective action. EPA should continue to allow
as much flexibility in the rules as possible to encourage voluntary remediations.
Therefore, the CAMU concept should be extended to voluntary remediations that are
conducted under the auspices of a state or federal program." (Rohm & Haas. CS2P-
00114)

Response: The corrective action management unit regulations are not the subject of today's
rulemaking. The existing CAMU regulations are not affected by today's rulemaking and
continue, as appropriate, to apply to management of remediation waste. The Agency notes
that there is no prohibition on approval of a CAMU at a voluntary cleanup site; however, the
approval would have to be granted by EPA or an authorized state.

• "EPA should address hazardous remediation wastes, as defined in the Corrective Action
Management Unit (CAMU) rule, rather than simply hazardous soils, in HWIR and its
treatment goals." (DuPont, CS2P-L0003)

• "There is no argument that materials which are clearly as-generated wastes which have
been managed with the intent that waste management rules should apply(process
sludges in lined RCRA impoundments, for example, or containerized wastes) should
stay in the full RCRA waste system. However, a line can and should be drawn
between these materials and these materials and those that really are "remediation
wastes."

We encourage EPA to have the HWIR process and its treatment requirements apply to
remediation wastes as defined in the CAMU rule to better reflect the reality of remedial
activities and ensure that the tremendous efforts put into HWIR actually yield
meaningful reform." (DuPont. CS2P-L0003)

Response: In response to comments such as these, EPA deferred a final decision on soil
treatment standards to the HWIR-Media process's larger evaluation of application of RCRA
Subtitle C requirements to remediation wastes.

5.1.4 Voluntary Cleanups

• 'Relationship to Other Regulations and Programs (page 48131): GM agrees that the

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existing treatment standards that apply to soil containing hazardous waste are a
disincentive to voluntary cleanups. We also agree that the proposed standards are sei at
somewhat more reasonable levels and allow some flexibility in deciding which
treatment technology(s) to utilize, which should have a beneficial effect on voluntary
cleanups." (GM. CS2P-00095)

Response: EPA appreciates this support of soil treatment standards.

• "We do not believe that the current proposal will remove as many disincentives to
voluntary cleanup as it creates. While the flexibility with respect to cleanup
technologies is welcome, the subjection of hazardous soil to universal treatment
standards (for potentially the entire list of hazardous constituents subject to treatment) is
very different from the prior position taken by the agency. That is, the contained-in
principle had indicated that contaminated soil would need to be managed as hazardous
waste until it was determined that it no longer contained hazardous waste, no longer
exhibited a characteristic, or was delisted. See, 57 Federal Register 986, third column
(1/9/92). Thus, when soil exhibited a toxicity characteristic, and was treated to no
longer exhibit that characteristic, then the soil was no longer required to be managed as
hazardous. Further, the current proposal does not allow the soil to exit the hazardous
waste regulations, and requires treatment for all UTS hazardous constituents, calling
into question the adequacy of prior estimates regarding hazardous soil to be treated and
the adequacy of available treatment capacity." (Boeing, CS2P-00029)

Response: Many commemers expressed the concern that application of LDRs to remediation waste,
including contaminated soil. \\ as overly complex and would present impediments to remediation. The
majority of these commenters suggested that EPA simply exempt the majority of remediation wastes.
including contaminated soil, from a duty to comply with LDRs.

The Agency shares concerns that application of LDRs to hazardous remediation waste, including hazardous
contaminated soil, might prove overly complex or create impediments to efficient and aggressive remedial
actions. However, as discussed in the preamble to today's rulemaking. the Agency is not. at this time, taking
action on the portions of the HWIR-Media proposal which would have provided opportunities for some or all
hazardous remediation waste to exit large portions of the RCRA Subtitle C system. The Agency continues to
believe that legislative action is needed to address the application of RCRA Subtitle C regulations, especially
LDRs. to hazardous remediation waste. If legislation is forthcoming, EPA will likely re-examine application
of LDRs to hazardous remediation waste, including hazardous contaminated soil. If there is not legislation.
EPA may choose to take additional regulatory action, which may include a re-examination of the application
of LDRs to hazardous contaminated soils and other hazardous remediation wastes. In the meantime. EPA
believes the alternative LDR treatment standards for contaminated soil promulgated today, including the site-
specific, risk-based minimize threat variance, represent a significant improvement over the current practice of
applying the treatment standards developed for pure industrial hazardous waste.

• "H. Effect on Voluntary Clean-ups
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The proposed alternative BDAT standards for soil and the contained-in policy are
needed by the regulated community as quickly as possible. The HWTC was extremely
disappointed to hear of EPA's decision to extend the comment period for the soil
portion of the rule until March 1994. The reforms embodied in the proposed Phase n
LDR rule are needed desperately to promote more remedial action and voluntary clean-
ups. The soil standards are needed now. but in no event should EPA delay past June
1994 in promulgating alternative BDAT and a contained-in policy for contaminated
soil." (Hazardous Waste Treatment Council. CS2P-00060)

Response: EPA appreciates this support of the soil treatment standard. Despite these
comments the Agency choose, in 1994. to defer decisions about promulgating soil treatment
standards and the contained-in policy to the HWIR-Media rulemaking process.

• Provision must be made for self-implementing requirements for cleaning up small
spills. Currently, even minor spills require months of negotiation before clean-up can
begin. This does not benefit the environment. (Occidental Chemical Corporation.
CS2P-00143)

Response: The soil treatment standards will apply when soil contaminated by spills is subject
to LDRs. The treatment standards are. like other LDR treatment standards, self-implementing
and do not require negotiation (or Agency approval) before they can be applied.

5.1.5 Public Participation (see Section 16.D)

• "The Proposed Soil Standards Jeopardize Important Public Participation Mechanisms
Under CERCLA and Place States and Citizens at a Disadvantage in Selecting Remedies

The EPA notes that its policy decision to relax standards to accommodate non-
incineration technologies is reasonable in view of its 'determination that combustion is
not always the Best Demonstrated Available Technology for many soils.' Proposal, at
48,125. In support of that proposition, the Agency cites 55 Fed. Reg. 8,666, 8,761
(1990). The discussion at the cited reference, however, fails to support the above-
quoted proposition. The cited passage relates to treatability requests considered at
CERCLA response actions. In that context, the EPA determined for administrative
reasons that the BDAT standards based on incineration are presumed to be
inappropriate to soils unless a showing is made that they are appropriate and that a
party seeking such a treatability variance need only justify his choice of alternative
technology and its ability to meet the Superfund 6A guidance.

The EPA did not establish or even claim that incineration was not the best
demonstrated available treatment technology for soils. To USPCFs knowledge, the
EPA has never done so. The Agency action in the cited passage is more appropriately
characterized as making the administrative determination that soils often qualify for

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treatability variances due to sire-specific factors and thai, therefore, the EPA would
presume the 6A guidance provided appropriate variance levels to be established in
CERCLA ROD process. Indeed, the cited passage proceeds precisely on the premise
that incineration-based BDAT standards are appropriate. Had the EPA made any other
determination in the cite rulemaking, there would, of course, have been no need to
apply the § 268.44(h) treatability variance procedure.

Correcting the EPA's misapprehension of its own earlier rule is not merely an exercise
in "nit-picking". It is vitally important. The treatability variances discussed in that rule
are considered in the process of developing the CERCLA record of decision for a
particular site. The ROD development process includes substantial provisions for state
officials and locally affected people to become involved in the remedy selection process
and to obtain information about the degree of public health protection they can expect
from the remedy.

The proposed soil standards effectively remove this public participation mechanism
from the CERCLA process for soils at response sites. Be adopting either proposed
regulatory option for soils, the EPA will render the lax final standards an ARAR at
CERCLA response actions nationwide. Because the new. lax treatment standards will
be applicable as a matter of federal law through HSWA. the EPA will be under no real
burden to pay attention to any state or local complaint. There will be no need to
consider a treatability variance. Consequently, there will be no need to entertain
discussion about the clean-up levels appropriate at a particular site. Nor will there even
be much of a need to consider whether an on-site or off-site remedy is appropriate for
soils.

In practical effect, the new lax soil standards will amount to a national determination
that treatment for soils to levels that minimize threats to human health and the
environment is no appropriate at CERCLA sites (or for that matter, corrective action
sites).62 In practical effect, the new lax soil standards constitute a nationally applicable
treatability variance for soils. In practical effect, the new lax standards transform
determinations that were once made based on site specific factors63 to a nationwide.
advance-decision that site-specific factors exist everywhere or, in the alternative, that
site-specific factors are not an appropriate consideration. This result is curious indeed
in view of the continuing Agency claims that all decision-making should be site-
The Aeency cannot possibly claim, except through the most contorted view of reality, that
treatment standards ten times greater than the levels determined to minimize threats are. for soils, the minimize threat
levels.

It is important to note that . even under the EPA policy statement presuming 6A guidelines to be
appropriate for soils, opportunity existed to overcome the presumption by showing that a more protective standard is
achievable and appropriate. This opportunity disappears once the new lax soil standards are promulgated.

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specific.

Once established as federal law ARARs. the EPA will gain the ability to force-feed an
on-site remedy incorporating less than protective standards at any response action
nationwide. This surely was not the intention Congress had in mind when it amended
CERCLA to compel EPA to adhere to federal, state, and local laws. Because the final
soil standards will be promulgated under HSWA, it is far from clear that a state or
locality could enforce its interests in a protective remedy by adopting its own law.
Although the EPA proposes, in effect, to turn the entire CERCLA ROD process on its
head in the LDR context, the preamble (which otherwise refers copiously to CERCLA
and corrective action) fails to devote a single word of discussion to the point. To the
extent the Agency was unaware of this probable effect of the Phase n soil rule, the
oversight should be corrected through a supplementary proposed rulemaking. We note
that the oversight, if any, would not have occurred had the Agency remained focused
on HSWA's mandate to establish treatment standards that minimize threats to human
health and the environment and remained true to the BDAT methodology in favor of
the Proposal's regulation-by-guess methodology. Whether or not the Agency
anticipated this probable effect on CERCLA, we believe that the proposed lax standards
represent an extraordinarily poor policy choice." (USPCI, CS2P-00171)

Response: As discussed in detail in the preamble to today's final rule, EPA has found that the
soil treatment standards minimize threats within the meaning of RCRA Section 3004(m)
considering the distinct treatability issues posed by soil and the distinct policy issues posed by
the remediation context under which most contaminated soil is managed. The Agency is not,
therefore, concerned over their potential application as an ARAR at CERCLA sites. The
public participation associated with CERCLA remedial actions is not affected by today's
rulemaking. To the extent that the soil treatment standards are applied to contaminated soil at
CERCLA sites, this application will be addressed in proposed plans (and RODs) and subject to
public review and comment.

The Agency notes that the soil treatment standards, like any LDR treatment standards are not
and should not be used as cleanup levels.
5.1.6 Radioactive Mixed Wastes (see Section 27.A)

"Treatment of analyzable constituents in soils should provide adequate treatment of
non-analyzable constituents as well.

Under the proposed rule, EPA intends to subject mixed radioactive hazardous soil to
the proposed treatment standards for hazardous soil (in addition to any regulation of
that material under AEA), rather than to the treatment standards for the contaminating
wastes. This includes soil contaminated with mixed waste for which special treatability

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groups have been established. Therefore, this soil would be subject to the proposed
soil standards rather that of the specified treatability group standards.

While the EPA position to use this process rather than the variance process is
supportable, it must be noted that insufficient data exists at present to identify all
potential problems that may arise in treating RMW to the proposed soil standards. This
is due to the currently limited availability of both RMW characterization data and
RMW treatment data. RMW characterization efforts are not yet complete, particularly
for the large radioactive and RMW inventory that exists from past generation activities.
and for contaminated soil and debris that will be generated in future environmental
restoration activities.

Data on treatment of RMW is also limited due to the limited number of RMW
treatment units currently operating. Treatment systems for RMW must be designed not
only to treat the hazardous component of the RMW, but also to limit the release of
radionuclides to the environment by airborne and waterborne pathways and to control
contamination. These are some of the reasons that immobilization technologies are
favored in most circumstances." (INEL. CS2P-00018)

Response: EPA appreciates this support of the soil treatment standards.

• "Allowing mixed hazardous soil to be treated to proposed alternative treatment
standards for hazardous soil is appropriate.

EPA proposal to subject mixed radioactive hazardous soil to the proposed alternative
treatment standards for hazardous soil, rather than to the treatment standards for the
contaminating hazardous waste as now required is acceptable. The treatability of
hazardous constituents in mixed radioactive soil is in most cases the same as that for
non-radioactive soils, and it therefore makes good sense to assign the same treatment
standards to both materials." (INEL. CS2P-0018)

Response: EPA appreciates this support of the soil treatment standards. The final soil
treatment standards can be applied to soil contaminated by mixed hazardous and radioactive
waste.

• "It is believed that the regulated agency should have maximum flexibility in developing
treatment standards for radioactive mixed wastes (RMW). UTS may potentially limit this
flexibility (i.e.. subject RMW to the same UTS as nonradioactive waste) unless separate
standards (similar to those being proposed for hazardous soils) are proposed for RMW
EPA should closely examine the UTS to determine whether any of the alternative
treatment methods identified in the preamble would be appropriate for RMW. The soil
treatment alternative entitled 'Achieving 90% Treatment with No Ceiling" would provide
flexibility and may be an appropriate approach for treatment of RMW." (INEL. CS2P-

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00018)

Response: EPA appreciates this support of the soil treatment standards. The final soil treatment
standards can be applied to soil contaminated by mixed hazardous and radioactive waste.

• ;EPA solicits comments on subjecting mixed radioactive hazardous soil to the
proposed treatment standards for hazardous soil rather than to the treatment
standards for the contaminating waste. EPA also explains that this proposed
approach includes soil contaminated with mixed waste for which special treatability
groups have been established.

As indicated in preceding comments (see Section VTI.C.), DOE supports the Agency's
intent to establish treatment standards for hazardous soils that ;'are based on levels
attainable by a variety of technologies, including innovative technologies." DOE believes
that the regulatory scheme adopted for hazardous soils should facilitate the use of different
technologies (considering the potential diversity among contaminated soils) and allow the
selection of the most appropriate treatment. .Although the three proposed approaches
would provide a degree of flexibility relative to choosing suitable treatment methods for
hazardous soils, DOE is concerned with the application of these approaches to certain
RMW-contaminated soils. As discussed under section VII.C., sampling and analysis of
RMW for hazardous constituents (particularly at low numerical concentrations) can be
very difficult due to radiological dose considerations. Such sampling and analytical
difficulties would be experience with certain RMW-contaminated soils under each of the
three approaches since considerable analytical work would be required to verify
compliance with the numerical standards or constituent reduction requirements.

DOE has encouraged EPA (in response to past LDR proposals) not to limit itself to
setting only concentration-based standards_or_only specified technology standards.
Instead. DOE believes that the LDR regulations in many instances should accommodate
both alternatives in order to allow maximum flexibility. Particularly with respect to
RMW-contaminated soil, such flexibility is necessary to allow for the development of safe,
appropriate treatment methods that will effectively deal with radiological and chemical
components. With regard to the subject proposed rule. DOE believes the best regulatory
approach would be to establish specified technology standards for hazardous soils (similar
to the approach promulgated for hazardous debris) as an alternative to the proposed
approaches. Along these same lines, DOE also believes that soils contaminated with
RMW for which special treatability groups have been established should be subject to
either (a) the proposed soil standards, or alternatively, (b) the existing specified treatability
group standards." (DOE. CS2P-00161)

Response: EPA is not, at this time, persuaded that it should promulgate specified technologies for
treatment of contaminated soil. The Agency continues to believe that the most appropriate
approach for contaminated soil is to promulgate treatment standards that support a range of
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technologies, including common soil treatment technoiogies. Regarding application of the
existing specified treatment standards for radioactive mixed waste to contaminated soil, like anv
other universal treatment standard, those standard could be applied in lieu of the soil treatment
standards promulgated today
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