land disposal restrictions for restrictions for ... - us epa€¦ · e. "soft hammer"...

Federal Register / Vol. 53, No. 68 / Friday, April 8, 1988 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 264, 265, 268, and 271

[OSW-FR-88-005; FRL-3300-2]

Land Disposal Restrictions forRestrictions for First Third ofScheduled Wastes

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Proposed rule.

SUMMARY: The Environmental ProtectionAgency (EPA) is today proposing itsapproach to implementing thecongressionally mandated prohibitionson land disposal of hazardous wasteslisted in 40 CFR 268.10. These actionsare responsive to amendments to theResource Conservation and RecoveryAct (RCRA), enacted in the Hazardousand Solid Waste Amendments (HSWA)of 1984.

Today's notice proposes specifictreatment standards and effective datesfor some of the so-called "First Third"wastes. Additionally, the Agency isproposing its approach to implementingthe land disposal restrictions provisionsfor those First Third wastes for which atreatment standard is not set, Alsoaddressed in today's notice are theAgency's proposed modifications to the"no migration" petition process.DATE: Comments on this proposed rulemust be submitted on or before May 23,1988.ADDRESSES: The public must send anoriginal and two copies of theircomments to EPA RCRA Docket (S-212)(WH-562), U.S. EnvironmentalProtection Agency, 401 M Street SW.,Washington, DC 20460. Place the DocketNumber F-88-LDR7-FFFFF on yourcomments. The OSW docket is locatedin the EPA RCRA Docket Room (sub-basement), 401 M Street SW.,Washington, DC 20460. The docket isopen from 9:00 to 4:00, Monday throughFriday, except for public holidays. Toreview docket materials, the public mustmake an appointment by calling (202)475-9327. The public may copy amaximum of 50 pages from anyregulatory document at no cost.Additional copies cost $.20 per page.FOR FURTHER INFORMATION CONTACT:For general information, contactStephen Weil, or Mitch Kidwell, Officeof Solid Waste (WH-562B), U.S.

Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460, (202)382-4770. For specific information onBDAT/treatment standards, contact JimBerlow, Office of Solid Waste (WH-565], U.S. Environmental ProtectionAgency, 401 M Street SW., Washington,DC 20460, (202) 382-7917. For specificinformation on capacity determinations/national variances, contact Jo-AnnBassi, or Linda Malcolm, Office of SolidWaste (WH-565), U.S. EnvironmentalProtection Agency, 401 M Street SW.,Washington, DC 20460, (202] 382-7917.

SUPPLEMENTARY INFORMATION:

Outline

I. BackgroundA. Brief Summary of the Hazardous and

Solid Waste Amendments of 1984[HSWA)1. Solvents and Dioxins2. California List Wastes3. Scheduled Wastes4. Newly Identified and Listed Wastes

B. Summary of the Land Disposal Restric-tions Framework1. Regulatory Framework2. Applicability3. Development of § 3004(m) Treatment

Standards4. Application of the Toxicity Character-

istic Leaching Procedures (TCLP)5. Determination of Alternative Capacity

and Ban Effective Datesa. Effective Dates Based on National

Capacity Determinationsb. Case-by-Case Extensions

6. Exemption for Treatment in SurfaceImpoundments

7. Dilution Prohibition8. Storage Prohibition9. Variance from the Treatment Stand-

ard10. "No Migration" Exemption11. Permit Modifications and Changes

During Interim Status12. Treatment Standards and Effective

Dates for Restricted Wastes13. The California List

11. Summary of Today's ProposalA. Proposed ApproachB. Best Demonstrated Available Technol-

ogies (BDAT)C. Waste Analysis RequirementsD. Nationwide Variances from the Effec-

tive DateE. "Soft Hammer" RequirementsF. "No Migration" Petition

III. Regulatory Approach for the First ThirdWastesA. Determination of Treatability Groups

and Development of BDAT TreatmentStandards

1. Waste Treatability Groups2. Demonstrated Treatment Technologies3. Selection of Facilities for Engineering

Visits and Sampling4. Hazardous Constituents Considered

and Selected for Regulation (BDATList)

5. Compliance with Performance Stand-ards

6. Identification of BDAT7. BDAT Treatment Standards for "De-

rived-From" and "Mixed" Wastesa. Applicability of BDAT to "Derived-

From" Wastes From TreatmentTrains Generating Multiple Residues

b. Applicability of BDAT to Mixturesand Other Derived-From Residues

8. Transfer of Treatment Standards9. "No Land Disposal" as the Treatment

Standard10. Waste-Specific Treatment Standards

a. K061-Emission Control Dust/Sludge from the Primary Productionof Steel in Electric Furnaces

b. K062-Spent Pickle Liquor Generat-ed by Steel Finishing Operations ofFacilities Within the Iron and SteelIndustry (SIC Codes 331 and 332]

c. K016--eavy Ends or DistillationResidues from the Production ofCarbon TetrachlorideK018-Heavy Ends from the Frac-

tionation in Ethyl Chloride Produ-citon

K019-Heavy Ends from the Distilla-tion of Ethylene Dichloride Pro-duction

K020--Heavy Ends from the Distilla-tion of Vinyl Chloride in VinylChloride Monomer Produciton

K030-Column Bottoms or HeavyEnds from the Combined Produc-tion of Trichloroethylene andPerchloroethylene

d. K024-Distillation Bottoms from theProduction of Phthalic Anhydridefrom Naphthalene

e. K103-Process Residues from Ani-line Extraction from the Productionof AnilineK104-Combined Wastewater

Streams Generated from Nitro-benzene/Aniline Production

f. K071-Brine Purification Muds fromthe Mercury Cell Process in Chlo-rine Production, where SeparatelyPrepurified Brine is Not Used

g. K048-Dissolved Air Flotation(DAF] Float from the Petroleum Re-fining IndustryK049-Slop Oil Emulsion Solids

from the Petroleum Refining In-dustry

K050-Heat Exchanger BundleCleaning Sludge from the Petrole-um Refining Industry

K051-API Separator Sludge fromthe Petroleum Refining Industry

11742

HeinOnline -- 53 Fed. Reg. 11742 1988

This information is reproduced with permission from HeinOnline, under contract to EPA. By including this material, EPA does not endorse HeinOnline.


K052-Tank Bottoms (Leaded) from.the Petroleum Refining Industry

h. K069-Emission Control Dust/Sludge from Secondary Lead Smelt-ing

i. K015-Still Bottoms from the Distil-lation of Benzyl Chloride

j. K037-Wastewater TreatmentSludges from the Production of Dis-ulfoton

k. K004-Wastewater TreatmentSludge from the Production of ZincYellow PigmentsK008-Oven Residue from the Pro-

duction of Chrome Oxide GreenPigments

K036--Still Bottoms from TolueneReclamation Distillation in theProduction of Disulfoton

K073-Chlorinated HydrocarbonWaste from the Purification Stepof the Diaphragm Cell ProcessUsing Graphite Anodes in Chlo-rine Produciton

K100-Waste Leaching Solutionfrom Acid Leaching of EmissionControl Dust/Sludge from Second-ary Lead Smelting

B. Testing and Recordkeeping1. Waste Analysis2. Notification Requirements3. Recordkeeping Requirements for Stor-

age FacilitiesC. "Soft Hammer" Provisions

1. Applicability2. Interpretation of Specific Terms

a. "Treatment"b. "Facility"c. "Certification by Owners or Opera-

tors as well as Generators"3. Certification Requirements4. Treatment of "Soft Hammer" Wastes

in Surface Impoundments5. Retrofitting Variances

D. Disposal of Restricted Wastes Subjectto an Extension of the Effective Date

E. Relationship to California List Prohibi-tions

F. Determination as to the Availability ofthe Two-Year Nationwide Variance forSolvent Wastes Which Contain LessThan 1% Total F001-FOO5 Solvent Con-stituents

G. Storage ProhibitionH. Petitions to Allow Land Disposal of

Prohibited Wastes1. Overview2. Requirements of "No Migration" Peti-

tions in the November 7, 1986 FinalRule

3. Regulatory Requirements of RCRASections 3004(f) and (g) November 7,1986 Final Rule

4. Additional Requirements for "No Mi-gration" Petitions for Surface Units

I. Proposed Approach To ComparativeRisk Assessment

j. Determination of Alternative Capacityand Effective Dates for the First ThirdWastes

1. Quantities of Wastes Land Disposed2. Required Alternative Capacity3. Capacity Currently Available and Ef-

fective Dates4. Capacity Variances for "Derived-

From" and "Mixed" Wastes5. Capacity Variances for "Soft

Hammer" WastesIV. Modifications to the Land Disposal Re-

strictions FrameworkA. General Waste Analysis (§ 264.13 and

§ 265.13]B. Operating Record (§ 264.73 and § 265.73)C. Purpose, Scope, and Applicability

(§ 268.1)D. Treatment in Surface Impoundment Ex-

emption (§ 268.4)E. Case-by-Case Extensions (§ 268.5)F. "No Migration" Petitions (§ 268.6)G. Testing and Recordkeeping (§ 268.7)H. Landfill and Surface Impoundment Re-

strictions (§ 268.8)I. Waste Specific Prohibitions-First Third

Wastes (§ 268.33)}. Treatment Standards (§ 268.40, § 268.41,

and § 268.43]K.IStorage Prohibition (§ 268.50)

V. State AuthorityA. Applicability of Rules in Authorized

StatesB. Effect on State AuthorizationsC. State Implementation

VI. Effects of the Land Disposal RestrictionsProgram on Other Environmental ProgramsA. Discharges Regulated Under the Clean

Water ActB. Discharges Regulated Under the Marine

Protection, Research, and SanctuariesAct (MPRSA)

C. Air Emissions Regulated Under theClean Air Act

VII. Regulatory AnalysesA. Regulatory Impact Analysis

1. Purpose2. Executive Order No. 122913. Basic Approach/Regulatory Alterna-

tives4. Methodology5. Results

B. Regulatory Flexibility ActC. Paperwork Reduction ActD. Review of Supporting Documents

VIII. Implementation of the Part 268 LandDisposal Restrictions Program

IX. ReferencesX. List of Subjects in 40 CFR Parts 264, 265,

268, and 271

I. Background

A. Brief Summary of the Hazardous andSolid Waste Amendments of 1984(HSWA)

The Hazardous and Solid WasteAmendments (HSWA), enacted onNovember 8, 1984, require the Agency topromulgate regulations that restrict theland disposal of hazardous wastes.Specifically, the amendments specifydates when particular groups ofhazardous wastes are prohibited from

land disposal unless "it has beendemonstrated to the Administrator, to areasonable degree of certainty, thatthere will be no migration of hazardousconstituents from the disposal unit orinjection zone for as long as the wastesremain hazardous" (RCRA sections 3004(d)(1), (e)(1), (g)(5), 42 U.S.C. 6924 (d)(1),(e)(1), (g)(5)). Congress established aseparate schedule for restricting thedisposal by underground injection intodeep injection wells of solvent- anddioxin-containing hazardous wastes andwastes referred to collectively asCalifornia list hazardous wastes (RCRAsection 3004(f)(2), 42 U.S.C. 6924(f)(2)).

The amendments also require theAgency to set "levels or methods oftreatment, if any, which substantiallydiminish the toxicity of the waste orsubstantially reduce the likelihood ofmigration of hazardous constituentsfrom the waste so that short-term andlong-term threats to human health andthe environment are minimized" (RCRAsection 3004(m)(1), 42 U.S.C. 6924(m)(1)).Wastes that meet treatment standardsestablished by EPA are not prohibitedand may be land disposed. The Agencycan also grant a variance from atreatment by revising the treatmentstandard for a waste through rulemakingprocedures. In addition, a hazardouswaste that does not meet the treatmentstandard may be land disposedprovided the "no migration"demonstration specified in sections 3004(d)(1), (e)(1), and (g)(5) is made.

For the purposes of the restrictions,HSWA defines land disposal "toinclude, but not be limited to, anyplacement of * * * hazardous waste ina landfill, surface impoundment, wastepile, injection well, land treatmentfacility, salt dome formation, salt bedformation, or underground mine orcave" [RCRA section 3004(k), 42 U.S.C.6924(k)).

Although HSWA defines landdisposal to include injection wells, suchdisposal of solvents, dioxins, and theCalifornia list wastes is covered on aseparate schedule. The disposal of suchwastes in deep-wells is subject to theland disposal restrictions by August 8,1988.

The land disposal restrictions areeffective when promulgated unless theAdministrator grants a nationalvariance from the statutory date andestablishes a different date (not toexceed two years beyond the statutorydeadline) based on "the earliest date onwhich adequate alternative treatment,recovery, or disposal capacity which

11743




protects human health and theenvironment will be available" (RCRAsection 3004(h)(2), 42 U.S.C. 6924(h)(2)).In addition, the Administrator may granta case-by-case extension of thestatutory deadline for up to one year,renewable once for up to one additionalyear, when an applicant "demonstratesthat there is a binding contractualcommitment to construct or otherwiseprovide such alternative capacity butdue to circumstances beyond the controlof such applicant such alternativecapacity cannot reasonably be madeavailable by such effective date" (RCRAsection 3004(h)(3), 42 U.S.C. 6924(h)(3)).

The statute also allows treatment ofhazardous wastes in surfaceimpoundments that meet certainminimum technological requirements(certain exceptions are allowed).Treatment in surface impoundments ispermissible provided the treatmentresidues that do not meet the treatmentstandard(s) (or applicable statutoryprohibition levels where no treatmentstandards have been established) are"removed for subsequent managementwithin one year of the entry of the wasteinto the surface impoundment" (RCRAsection 3005(j)(11)(B), 42 U.S.C.6925(j)(11)(B)).

In addition to prohibiting the landdisposal of hazardous wastes, Congressalso prohibited the storage of restrictedwastes unless "such storage is solely forthe purpose of the accumulation of suchquantities of hazardous waste as arenecessary to facilitate proper recovery,treatment or disposal" (RCRA section3004(j), 42 U.S.C. 6924(j).

1. Solvents and Dioxins

As of November 8, 1986, HSWAprohibits the land disposal (except byunderground injection into deep wells)of the following wastes: dioxin-containing hazardous wastes numberedF020, F021, F022, and F023; and solvent-containing hazardous wastes numberedFO01, F002, F003, F004, and F005 in 40CFR 261.31 (RCRA sections 3004(e)(1),(e)(2), 42 U.S.C. 6924 (e)(1), (e)(2)).Effective August 8, 1988, the disposal ofthese wastes into deep injection wells isprohibited (RCRA sections 3004 (f)(2),(f)(3), 42 U.S.C. 6924 (f)(2), (f)(3)). Duringthe period ending November 8, 1988, thisprohibition does not apply to disposal ofsolvent- and dioxin-contaminated soil ordebris resulting from a response actiontaken under section 104 or 106 of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA) or a correctiveaction taken under Subtitle C of RCRA(RCRA section 3004(e)(3), 42 U.S.C.6924(e)(3)).

2. California List Wastes

As of July 8, 1987, the statute prohibitsfurther land disposal (except by deepwell injection) of the following wasteslisted or identifed under section 3001 ofRCRA.

(A) Liquid hazardous wastes, including freeliquids associated with any solid orsludge, containing free cyanides atconcentrations greater than or equal to1,000 mg/i.

(B) Liquid hazardous wastes, including freeliquids associated with any solid orsludge, containing the following metals(or elements) or compounds of thesemetals (or elements) at concentrationsgreater than or equal to those specifiedbelow:

(i) arsenic and/or compounds (as As) 500mg/I;

(ii) cadmium and/or compounds (as Cd)100 mg/I;

(iii) chromium (VI and/or compounds (asCr Vl)) 500 mg/i;

(iv) lead and/or compounds (as Pb) 500mg/i;

(v) mercury and/or compounds (as Hg) 20mg/I;

(vi) nickel and/or compounds (as Ni) 134mg/I;

(vii) selenium and/or compounds (as Se)100 mg/i; and

(viii) thallium and/or compounds (as TI)130 mg/I.

(C) Liquid hazardous waste having a pH lessthan or equal to two (2.0).

(D) Liquid hazardous wastes containingpolychlorinated biphenyls atconcentrations greater than or equal to50 ppm.

(E) Hazardous wastes containing halogenatedorganic compounds in totalconcentration greater than or equal to1,000 mg/kg.

(RCRA sections 3004 (d)(1), (d)(2), 42U.S.C. 6924 (d)(1), (d)(2)). EffectiveAugust 8, 1988, the undergroundinjection into deep wells of these wastesis prohibited (RCRA sections 3004 (f)(2),(f)(3), 42 U.S.C. 6924 (f)(2), (f)(3)). Duringthe period ending November 8, 1988,there is no prohibition on the landdisposal of California list wastes thatare contaminated soil or debris resultingfrom a response action taken undersection 104 or 106 of CERCLA or acorrective action taken under Subtitle Cof RCRA (RCRA section 3004(e)(3), 42U.S.C. 6924(e)(3)).

3. Scheduled Wastes

The amendments required the Agencyto prepare a schedule, by November 8,1986, for restricting the land disposal ofall hazardous wastes listed or identifiedas of November 8, 1984 in 40 CFR Part261, excluding solvent- and dioxin-containing wastes and California listwastes covered under the schedule setby Congress.The schedule, based on aranking of the listed wastes that

considers their intrinsic hazard and theirvolume, is to ensure that prohibitionsand treatment standards arepromulgated first for high volumehazardous wastes with high intrinsichazard before standards are set for lowvolume wastes with low intrinsichazard. The statute further requires thatthese determinations be made by thefollowing deadlines:

(A) At least one-third of all listedhazardous wastes by August 8, 1988.

(B) At least two-thirds of all listedhazardous wastes by June 8, 1989.

(C) All remaining listed hazardouswastes and all hazardous wastesidentified as of November 8, 1984 by oneor more of the characteristics defined in40 CFR Part 261 by May 8, 1990.

If EPA fails to set a treatmentstandard by the statutory deadline forany hazardous waste in the first-third orsecond-third of the schedule, the wastemay be disposed in a landfill or surfaceimpoundment provided the unit is incompliance with the minimumtechnological requirements specified insection 3004(o) of RCRA. In addition,prior to disposal, the generator mustcertify to the Administrator that he hasinvestigated the availability of treatmentcapacity and has determined thatdisposal in such landfill or surfaceimpoundment is the only practicalalternative to treatment currentlyavailable to the generator. Thisrestriction on the use of landfills andsurface impoundments applies until EPAsets a treatment standard for the waste.The use of other forms of land disposalis not similarly restricted, and maycontinue to be used for disposal ofuntreated wastes until EPA promulgatestreatment standards, or until May 8,1990, whichever is sooner. If the Agencyfails to set a treatment standard for anyranked hazardous waste by May 8, 1990,the waste is automatically prohibitedfrom land disposal unless the waste isthe subject of a successful "nomigration" demonstration (RCRAsection 3004(g), 42 U.S.C. 6924(g)). In aMay 28, 1986 final rule (51 FR 19300),EPA published the schedule for settingtreatment standards for the listedhazardous wastes, with all wastes thatare identified as hazardous bycharacteristic being ranked in the third-third. This schedule is incorporated in 40CFR 268.10, 268.11, and 268.12.

4. Newly Identified and Listed Wastes

RCRA requires the Agency to set atreatment standard for any hazardouswaste that is newly identified or listedin 40 CFR Part 261 after November 8,1984 within six months of the date ofidentification or listing (RCRA section

11744




3004(g)(4), 42 U.S.C. 6924(g)(4)).However, the statute does not providefor an automatic prohibition on the landdisposal of such wastes if EPA fails toestablish treatment standards within thesix-month period.

B. Summary of the Land DisposalRestrictions Framework

In this section EPA describes, for thereaders' convenience, the existing landdisposal regulations under 40 CFR Part268. EPA, however, is not reopening anyof these existing rules for publiccomment unless it explicitly says soelsewhere in the preamble.

1. Regulatory Framework

On November 7, 1986, EPApromulgated a final rule (51 FR 40572)establishing the regulatory frameworkfor implementing the land disposalrestrictions. Corrections to theNovember 7, 1986 final rule wereincluded in a June 4, 1987 FederalRegister notice (52 FR 21010) to clarifythe Agency's approach to regulatingrestricted wastes. Some changes to theframework were made in the July 8, 1987rulemaking that prohibited certainCalifornia list wastes (52 FR 25760). Byeach statutory deadline, and inaccordance with the schedulepromulgated on May 28, 1986 (51 FR19300), the Agency must promulgate theapplicable treatment standards underPart 268 Subpart D for each hazardouswaste. Once the treatment standards areeffective, restricted wastes may be landdisposed in a Subtitle C hazardouswaste facility if they meet the applicabletreatment standards. However, iftreatment standards are notpromulgated by the statutory andscheduled deadlines, such wastes areprohibited from land disposal unlesscertain demonstrations are made bythose who wish to continue landdisposal. Such demonstrations areallowed only until May 8, 1990 (whenwastes are automatically prohibited bystatute), or until EPA promulgatestreatment standards, whichever issooner.

After the effective dates of theprohibitions, wastes that do not complywith the applicable treatment standardswill be prohibited from continuedplacement in land disposal units unlessa petition has been approved under§ 268.6 demonstrating that there will beno migration of hazardous constituentsfrom the land disposal unit or injectionzone for as long as the waste remainshazardous. Also, EPA may grant anextension to the effective date under§ 268.5 on a case-by-case basis.

2. Applicability

The land disposal restrictions applyprospectively to the affected wastes. Inother words, hazardous wastes landdisposed after the effective date aresubject to the restrictions, but wastesland disposed prior to the applicableeffective date are not required to beremoved or exhumed for treatment.Similarly, the restrictions on storage ofaffected hazardous wastes apply only towastes placed in storage after theeffective date of an applicable landdisposal restriction. If, however, wastessubject to the land disposal restrictionsare removed from storage or landdisposal after the effective date, suchwastes would be subject to therestrictions and treatment standards.

The provisions of the land disposalrestrictions apply to wastes produced bygenerators of 100 to 1,000 kilograms ofhazardous waste (or greater than 1 kg ofacute hazardous waste) in a calendarmonth. However, wastes produced bygenerators of less than 100 kilograms ofhazardous waste (or less than 1 kg ofacute hazardous waste) per calendarmonth are conditionally exempt fromRCRA regulation, including the landdisposal restrictions.

The land disposal restrictions apply toboth interim status' and permittedfacilities, as well as those not regulatedunder RCRA. All permitted facilities aresubject to the restrictions, regardless ofexisting permit conditions. The landdisposal restrictions supersede 40 CFR270.4(a), which currently provides thatcompliance with a RCRA permitconstitutes compliance with Subtitle C.

3. Development of § 300 4(m) TreatmentStandards

In the November 7, 1986 rulemaking,EPA promulgated a technology-basedapproach to establishing treatmentstandards under section 3004(m). Thesetreatment standards are generally basedon the performance of the bestdemonstrated available technology(BDAT) identified for the hazadousconstitutents.

In developing the treatmentstandards, EPA characterizes the wastesand establishes treatability groups forwastes having similar physical andchemical properties and, thus, similartreatability characteristics. Once thetreatability groups are established, EPAcollects and analyzes data on identifiedtechnologies used to treat the wastes ineach treatability group.

EPA identifies those technologies thatare "demonstrated" by full-scaleoperations. The demonstratedtechnologies are then evaluated todetermine whether they may be

considered "available". To beconsidered "available," the Agencydetermines whether the demonstratedtechnologies (1) are commerciallyavailable, (2) do not present a clearincrease in risk to human health and theenvironment when compared to landdisposal of the untreated wastes, and (3)substantially diminish the toxicity of thewaste or substantially reduce thelikelihood of migration of hazardousconstituents from the waste.

The performance data on thedemonstrated available technologies arethen evaluated to determine whether thedata is representative of well-designedand well-operated treatment systems.Only data from well designed andoperated systems are included indetermining BDAT. The performancedata on well-designed and well-operated demonstrated availabletechnologies are then statisticallyanalyzed to determine the performancelevel representative of treatment byBDAT.

EPA may establish treatmentstandards as either a specifictechnology, or as a performance level oftreatment monitored by measuring theconcentration level of the hazardousconstituents in the waste or treatmentresidual or an extract of the waste ortreatment residual. When possible, EPAprefers to establish treatment standardsas performance levels, allowing theregulated community greatest flexibilityin meeting the treatment standard.When treatment standards are set asperformance levels, the regulatedcommunity may use any technology (nototherwise prohibited, e.g., impermissibledilution) to treat the waste to meet thetreatment standard and is not limited toonly those technologies considered indetermining BDAT. However, whentreatment standards are expressed asspecific treatment methods, suchmethods must be employed.4. Application of the ToxicityCharacteristic Leaching Procedure(TCLP)

In the November 7, 1986 final rule,EPA promulgated regulations requiringthe regulated community to use theToxicity Characteristic LeachingProcedure (TCLP) (Part 268 Appendix I)when developing an extract from arestricted solvent or dioxin-containingwaste or treatment residual. This extractmust be analyzed to determine whetherthe concentrations of hazardousconstituents meet the applicabletreatment standards (which areexpressed in Table CCWE at § 268.41 asconstituent levels in the TCLP extract).EPA notes that the TCLP has only been

11745




promulgated for monitoring compliancewith the treatment standardsestablished for the FOOI-FOO5 spentsolvent wastes and the F020-FO23 andF026-F028 dioxin-contaminated wastes.The TCLP was not promulgated formonitoring compliance with theCalifornia list restrictions.5. Determination of Alternative Capacityand Ban Effective Dates

a. Effective Dates Based on NationalCapacity Determinations. The Agencyhas the authority to grant nationalvariances (not to exceed two years) tothe statutory effective date based upona lack of adequate alternative treatment,recovery or disposal capacity. To makethis determination, EPA considers, on anationwide basis, both the capacity ofalternative treatment technologies(permitted and interim status facilitiesthat will be on-line by the effective date)and the quantity of restricted wastesgenerated. If adequate capacity isavailable, the restriction on landdisposal of that waste goes into effectby the statutory deadline. If there is asignificant shortage of national capacity,EPA may establish an alternativeeffective date based on the earliest dateon which adequate capacity fortreatment, recovery or disposal that isprotective of human health and theenvironment will be available.

During the period of the nationalvariance, the waste is not subject to theland disposal prohibitions. However, ifthe waste is land disposed, it must bedisposed in facilities in compliance withthe minimum technological requirementsof RCRA section 3004(o) (42 U.S.C.6924(o)). (Note: EPA is proposing intoday's notice to amend this provision torequire that where such waste isdisposed in a landfill or surfaceimpoundment unit, the unit must be incompliance with the minimumtechnological requirements.)

b. Case-by-Case Extensions. TheAgency will consider granting up to a 1-year extension (renewable only once) ofa ban effective date on a case-by-casebasis. The applicant must demonstrate(among other things stated in § 268.5)that a good faith effort has been made tolocate and contract with treatment,recovery, or disposal facilitiesnationwide to manage his wastes, andthat he has entered into a bindingcontractual commitment to construct orotherwise provide alternative capacitythat cannot reasonably be madeavailable by the applicable effectivedate due to circumstances beyond hiscontrol. During the period of theextension, the waste is not subject to theland disposal prohibitions. However, ifthe waste is land disposed, it must be

disposed in units in compliance with theminimum technological requirements ofRCRA section 3004(o) (42 U.S.C.6924(o)). (Note: EPA is proposing intoday's notice to amend this provision torequire that where such waste isdisposed in a landfill or surfaceimpoundment unit, the unit must be incompliance with the minimumtechnological requirements.)

6. Exemption for Treatment in SurfaceImpoundments

Wastes that would otherwise beprohibited from one or more methods ofland disposal may be treated in asurface impoundment that meets certaintechnological requirements(§ 268.4(a)(3)) as long as treatmentresiduals that do not meet the applicabletreatment standard (or statutoryprohibition levels where no treatmentstandards are established) are removedwithin one year of entry into theimpoundment and are not placed intoany other surface impoundment forsubsequent management. The owner oroperator of such an impoundment mustcertify to the Regional Administratorthat the technical requirements havebeen met and must also submit a copyof the waste analysis plan that has beenmodified to provide for testing treatmentresiduals in accordance with § 268.4requirements.

As promulgated in the July 8, 1987California list final rule (52 FR 25760),evaporation of hazardous constituentsas the principal means of treatment is,not considered treatment for thepurposes of this exemption (§ 268.4(b)).

7. Dilution Prohibition

As established in the November 7,1986 rule, and slightly modified in theJuly 8, 1987 rule, dilution is prohibited asa substitute for adequate treatment incomplying with the land disposalrestrictions. This includes dilution inlieu of adequate treatment to meetestablished treatment standards, as wellas dilution to circumvent the effectivedate of a prohibition, or dilution tootherwise avoid a prohibition (§ 268.3).However, dilution is permitted as anecessary part of the treatment process.

8. Storage Prohibition

Storage of restricted wastes isprohibited except where storage issolely for the purpose of accumulatingsuch quantities of wastes as arenecessary to facilitate proper treatment,recovery, or disposal (§ 268.50).Treatment, storage, and disposalfacilities may store restricted wastes foras long as needed, provided suchstorage is solely for this purpose.However, if the facility stores a

restricted waste for more than one year,it bears the burden of proof that suchstorage was solely for this purpose (nonotification of storage exceeding oneyear is required)..For storage of lessthan one year, EPA bears the burden ofproof that such storage was not for thesole purpose of accumulating suchquantities of wastes as are necessary tofacilitate proper treatment, recovery, ordisposal. The prohibition on storagedoes not apply to wastes which meet thetreatment standard, wastes which havebeen granted an extension to theeffective date, and wastes which are thesubject of a "no migration" exemptionunder § 268.6.

9. Variance From the TreatmentStandard

EPA established the variance from thetreatment standard to account for thosewastes which are unable to be treated tomeet the applicable treatmentstandards, even if well-designed andwell-operated BDAT treatment systemsare used (§ 268.44). Petitions mustdemonstrate (among other things) thatthe waste is significantly different fromthe wastes evaluated by EPA inestablishing the treatment standard andthat the waste cannot be treated incompliance with the applicabletreatment standard. This varianceprocedure could result in theestablishment of a new wastetreatability group and correspondingtreatment standard.that would apply toall wastes meeting the criteria of thenew waste treatability group.

10. "No Migration" Exemption

EPA will consider allowing the landdisposal of a specific untreatedrestricted waste at a specific site if theAgency determines that the applicableland disposal method is protective ofhuman health and the environment(§ 268.6). For the Agency to make thisdetermination, a petitioner mustdemonstrate (among other things) thatsuch disposal will not allow themigration of hazardous constituentsfrom the disposal unit or injection zonefor as long as the waste remainshazardous. (RCRA section 3004(d), 42U.S.C. 2964(d)(1)). Today's noticeincludes the Agency's proposedamendments to the "no migration"petition requirements under § 268.6.

11. Permit Modifications and ChangesDuring Interim Status

To facilitate the implementation of theland disposal restrictions, § 270.42 wasmodified in the November 7, 1986 rule toallow permitted treatment facilitiesmore flexibility to treat restricted

11746




wastes not previously specified in theirpermit Upon Federal or State approvalof a minor permit modification (under§ 270.42), treatment facilities may treatwastes prohibited from one or moremethods of land disposal provided thattreatment is in accordance withestablished treatment standards, thathandling and treatment of the restrictedwastes will not present substantiallydifferent risks from those wastes listedin the permit, and that no changes in thetreatment process or physical equipmentare made to accommodate these wastes.

The July 8, 1987 California list finalrule allowed permitted facilities to usethe minor modification process, undercertain conditions, to obtain approval tochange their facilities to treat or storerestricted wastes in tanks andcontainers as necessary to comply withthe land disposal restrictions. This rulealso allowed interim status facilities toexpand their operations by more than 50percent, in terms of capitalexpenditures, to treat or store restrictedwastes in tanks or containers asnecessary to comply with the landdisposal restrictions.

12. Treatment Standards and EffectiveDates for Restricted Wastes

Treatment standards and effectivedates for restricted wastes are discussedin detail in the November 7, 1986 rule onsolvents and dioxins, and in the July 8,1987 final rule on California list wastes.The applicable effective dates forrestricted wastes are found at 40 CFRPart 268 Subpart C. The applicabletreatment standards for restrictedwastes are found at 40 CFR Part 268Subpart D.

13. The California List

EPA promulgated the land disposalrestrictions final rule for some Californialist wastes on July 8, 1987 (52 FR 25760).This rule promulgated treatmentstandards and corresponding effectivedates for the California list hazardouswastes containing polychlorinatedbiphenyls (PCBs) and most of theCalifornia list wastes containinghalogenated organic compounds(HOCs), and codified the statutoryprohibition for certain corrosive wastes.This rule also established methods fordetermining compliance with theprohibitions and made somemodifications (as discussed previously)to the land disposal restrictionsframework promulgated November 7,1986 (51 FR 40572).

No prohibition levels or treatmentstandards were established for theCalifornia list hazardous wastescontaining metals or free cyanides.However, the statutory prohibitions took

effect on July 8, 1987 by operation of the"hammer provision" in RCRA section3004(d). A notice of data availabilityand request for comment, which outlinesthe Agency's findings with respect toestablishing more stringent prohibitionlevels for the metal and cyanide wastes,was published on August 12, 1987 (52 FR29992). A final rule establishingprohibitions for these wastes may beforthcoming.

The California list final rule requiresthat the Paint Filter Liquids Test (PFLT)be used to determine whether a waste,including a free cyanide or metal-bearing waste, is considered to be aliquid for purposes of the California listland disposal restrictions. Thisprocedure is method 9095 in EPAPublication No. SW-846, "Test Methodsfor Evaluating Solid Waste."

To determine compliance with thestatutory prohibition levels for the metaland free cyanide wastes, EPA willevaluate whether the PLFT filtratecontains the prohibited constituents inconcentrations exceeding the specifiedlevels. However, compliance with theHOC, PCB, and corrosive wasteprohibitions requires the analysis of theentire waste, not a PFLT-generatedfiltrate.

The California list final rule integrateda number of TSCA PCB requirementsinto the RCRA framework. This ensuresthat where inconsistencies existbetween TSCA and RCRA standards,the more stringent regulations govern.

The July 8, 1987 final rule establishedtreatment standards as specifiedtechnologies for California list PCB andHOC wastes (except dilute HOCwastewaters). All liquid and nonliquidhazardous wastes containing HOCs(listed in Appendix III of Part 268) intotal concentration greater than or equalto 1,000 mg/kg, except dilute HOCwastewaters (i.e., primarily watermixtures containing HOCs inconcentrations greater than or equal to1,000 mg/I but less than 10,0C0 mg/I),must be incinerated in accordance withthe requirements of Part 264 Subpart 0or Part 265 Subpart 0. However, EPAdetermined that there is a nationwidelack of incineration capacity for theseHOC wastes requiring incineration and,therefore, granted a 2-year variancefrom the treatment standard.

Treatment standards were notestablished for dilute HOS wastewaters.Dilute HOC wastewaters need not beincinerated, but they must be treated tobelow the 1,000 mg/l prohibition level.Dilute HOC wastewaters were notgranted a variance and were prohibitedfrom land disposal as of July 8, 1987.

Liquid hazardous wastes containingPCBs at concentrations greater than or

equal to 50 ppm must be treated inaccordance with existing TSCA thermaltreatment regulations at 40 CFR Part 761.For PCB concentrations greater than orequal to 50 ppm but less than 500 ppm,incineration in accordance with thetechnical requirements of 40 CFR 761.70or burning in high efficiency boilers inaccordance with the technicalrequirements of 40 CFR 761.60 isrequired. For PCB concentrations greaterthan or equal to 500 ppm, incineration inaccordance with the technicalrequirements of 40 CFR 761.70 isrequired. Thermal treatment for PCBsmust also be in compliance withapplicable regulations in Parts, 264, 265,and 266. No extension to the effectivedate was granted.

Wastes which are contaminated soiland debris resulting from responseactions taken under sections 104 and 106of CERCLA or corrective actions takenunder Subtitle C of RCRA are notsubject to these restrictions untilNovember 8, 1988.

lI. Summary of Today's Proposal

A. Proposed Approach

Today's notice describes the Agency'sproposed approach to implementing therequirements of RCRA section 3004(g)with respect to certain of the listedhazardous wastes included in § 268.10,as promulgated on May 28, 1986 (51 FR19300). Pursuant to RCRA, the Agency isrequired to promulgate regulationsestablishing conditions under whichthese so-called "First Third" wastes maybe land disposed by the statutorydeadline of August 8, 1988. August 8,1988 is also the date by which theAgency must make determinationsregarding the conditions under whichthe FO01-F005 solvents and F020-F023and F026-F028 dioxin-containing wastes(see 51 FR 40572), California list wastes(see 52 FR 25760), and First Third wastesmay be land disposed by deep-wellinjection. The Agency's proposedapproach to restricting the disposal ofthese wastes by deep-well injection willbe addressed in a separate notice.

EPA is proposing treatment standardsfor only some of the First Third wastesin today's proposal. The Agency willcontinue to analyze treatment data onadditional First Third wastes and willpublish a supplementary proposal oftreatment standards for these wastes inthe near future. However, due to thelack of available data and the timeconstraints of the statutory schedule,EPA does not expect to promulgatetreatment standards for all of the FirstThird wastes by August 8, 1988.Therefore, in accordance with the

1 ,,---11747



11748 Federal Register I Vol. 53, No. 68 / Friday, April 8, 1988 / Proposed Rules

provisions of section 3004(g)(6), theAgency is proposing regulations whichallow continued land disposal of FirstThird wastes for which treatmentstandards or extensions to the effectivedate have not been established. Theseso-called "soft hammer" provisions(discussed in further detail in Section III.C. of today's proposal) will apply untilMay 8, 1990 or until treatment standardsor extensions to the effective date arepromulgated, whichever is sooner. OnMay 8, 1990. there is an automaticprohibition on land disposal ofhazardous wastes listed or identifiedprior to the enactment of HSWA.Effective May 8, 1990, these wastes maybe land disposed only if the waste; (a)Meets the applicable treatmentstandards; (b) is the subject of anextension to the effective date; or (c) isthe subject of an approved "nomigration" petition.

B. Best Demonstrated AvailableTechnologies (BDA T)

In today's notice, the Agency definesthe waste treatability groups by wastecodes and identifies the BestDemonstrated Available Technology(BDAT) for each waste code (seeSection III. A.]. Treatment standardsapplicable to the specific waste code arebased on the performance levelsachievable by the corresponding BDATidentified for each waste code.However, any technology not otherwiseprohibited (i.e., impermissible dilution)may be used to meet the concentration-based treatment standards.

Incineration is identified as BDAT forwaste codes K015, K016, K018, K019,K020, K024, K030, K037, and K048--K052.Chromium reduction, chemicalprecipitation, and vacuum filtration isidentified as BDAT for K062. Solventextraction followed by incineration ofthe extract and followed by steamstripping and activated carbonadsorption is BDAT for K103 and K104.High temperature metals recovery isBDAT for K061. For K071, acid leachingand chemical oxidation is BDAT fornonwastewaters, and sulfideprecipitation and filtration is BDAT forwastewaters. Total recycle is identifiedas BDAT for K069 wastes. Also, EPAhas determined that the wastes K004,K008, K036, K073, and K100 are nolonger being generated and disposed,and therefore, has not identified BDATfor these wastes.

C. Waste Analysis Requirements

Treatment standards for organicwastes and wastes for whichdestruction technologies areappropriate, are based on totalconstituent analysis. For those wastes

for which stabilization or fixation isappropriate, treatment standards arebased on concentrations in an extractdeveloped by the Toxicity CharacteristicLeaching Procedure (TCLP) (see Part 268Appendix I).

D. Nationwide Variances From theEffective Date

Due to lack of sufficient alternativecapacity to treat the wastes to theapplicable treatment standards, anational capacity variance is proposedfor several of the waste codes coveredby today's notice. This determination isbased on a comparison of the volumesof wastes requiring treatment to theamount of treatment capacity availablefor such treatment. Although EPA doesnot require BDAT technologies be usedto meet the applicable treatmentstandards, capacity figures are derivedbased on technologies identified asBDAT, to ensure that adequatetreatment is available to meet thetreatment standards.

The Agency is proposing to grant atwo-year national variance for thefollowing waste codes: K016, K018,K019, K020, K024, K030, K037, K048-K052, K061, K071, K103, and K104. Novariance is proposed for other wastes. Amore detailed discussion is found inSection III. J. [Note: EPA has recentlyconducted a survey of treatment,storage, and disposal facilities. Capacitydeterminations based on this new datawill be proposed and available for usein the final rule.]

E. "Soft Hammer" Requirements

Section III. C. 3. of this notice presentsa more detailed discussion of thecertification and demonstrations agenerator (or owner or operator) isrequired to make to dispose of "softhammer" wastes in landfills and surfaceimpoundments. Generally, the.generator(or owner or operator) must certify thatthere is no treatment that meaningfullyreduces toxicity or mobility of the wastepractically available, and that, therefore,disposal of these wastes in a landfill orsurface impoundment unit that meetsthe minimum technological requirementsof 3004(o) (double liner, leachatecollection system, and ground watermonitoring) is the only practicalalternative. This certification alsoapplies to those "soft hammer" wasteswhich have been treated to reducetoxicity or mobility and for which nofurther treatment is practicallyavailable, and thus, disposal of thetreatment residuals in a landfill orsurface impoundment unit that meetsthe minimum technological requirementsis the only alternative.

F. "No Migration "Petition

Today's notice also proposesamendments to 40 CFR 268.6, the "nomigration" petition process (see SectionIII. H.). These amendments to § 268.6cover the demonstrations required in thepetition and certain other requirementson the owner or operator of a wastemanagement unit that is subject to a "nomigration" exemption.

III. Regulatory Approach for the FirstThird Wastes

A. Determination of Treatability Groupsand Development of BDA T TreatmentStandards

1. Waste Treatability Groups

For the First Third wastes, EPA usedthe individual listed waste codes as thestarting point for developing treatabilitywaste groups. In cases where EPAbelieved that wastes represented bydifferent codes could be treated tosimilar concentrations using identicaltechnologies, the Agency combined thecodes into one treatability group. EPAbased its initial treatability groupdecisions primarily on whether thewaste codes were generated by thesame or similar industries from similarprocesses, EPA believes that suchgroupings can be made even withlimited data because of the highlikelihood that characteristics affectingtreatment performance will be similarfor these different waste codes. Forexample, the five waste codes pertainingto wastes produced by petroleumrefining (K048-K052) were combinedinto a single treatability group. Thisanalysis resulted in 15 treatabilitygroups covering 24 waste codes that arethe subject of today's proposedrulemaking.

2. Demonstrated TreatmentTechnologies

As discussed in EPA's promulgatedmethodology for BDAT (see November7, 1986, 51 FR 40572), a technology isconsidered to be demonstrated for aparticular waste if the technologycurrently is in commercial operation fortreatment of that waste or a similarWaste. For most of the First Third wastecodes covered by today's proposal, EPAidentified demonstrated technologieseither through review of literaturediscussing current waste treatmentpractices or on the basis of informationprovided by specific facilities currentlytreating the waste or similar wastes.

In cases where the Agency did notidentify any facilities currently treatingwastes represented by a particularwaste code, EPA identifieddemonstrated technologies in the

11748 Federal Register/Vol. 53, No. 68 / Friday, April 8, 1988 / Proposed Rules




following manner. The Agency firstcharacterized the parameters affectingtreatment selection for the waste ofinterest. EPA then compared theseparameters to other wastes for whichtreatment technologies aredemonstrated; if the parameters weresimilar, the Agency considered thetreatment technology also to bedemonstrated for the waste of interest.For example, EPA considers rotary kilnincineration a demonstrated technologyfor many waste codes containinghazardous organic constituents, hightotal organic content and high filterablesolids regardless of whether any facilityis currently treating these wastes. Thebasis for this determination is datafound in literature as well as datagenerated by EPA confirming the use ofrotary kiln incineration on wasteshaving the above characteristics. EPA'srationale for determining demonstratedtechnologies for each of the wastetreatability groups can be found inSection III. A. 10. (in the subsections foreach specific treatability group).

3. Selection of Facilities for EngineeringVisits and Sampling

In those instances where additionaldata were needed to supplement theAgency's current knowledge oftreatment performance for thedemonstrated technologies, EPAarranged engineering visits to facilitiesthat treat wastes with a demonstratedtechnology that potentially could be thebasis for the treatment standards. Thepurpose of the engineering visits was toconfirm that candidates for sampling, infact, met EPA's criteria of being well-designed facilities and that thenecessary sampling points could beaccessed. During the visit, EPA alsoconfirmed that the facility appeared tobe well operated, although the actualoperation that occurs during sampling isthe basis for EPA's decisions regardingproper operation of the treatment unit.

In general, the Agency considers awell-designed facility as one thatcontains all the unit operationsnecessary to treat the various hazardousconstituents of the waste and any othernonhazardous materials in the wastethat may affect treatment performance.For example, a waste containinghazardous metals and a highconcentration of oil and grease wouldrequire removal of potentiallynonhazardous oil and grease in order tofacilitate the subsequent removal of thehazardous metals by precipitation. EPAalso places considerable emphasis onthe levels of performance the system isdesigned to achieve in determiningwhether to sample a particulartreatment facility, since the facility will

seldom exceed the goals of its originaldesign.

In addition to ensuring that a systemis reasonably well-designed, theengineering visit examines whether thefacility appears to be well-operated and,just as importantly, has a measurableway of describing the operation of thetreatment system during the time thewaste is being treated. For example,EPA may choose not to sample acontinuous treatment system for whichan important design parameter cannotbe continuously recorded through theuse of a strip chart. In continuoussystems, such instrumentation isimportant in determining whether thetreatment system was operating withindesign requirements during the periodwhen the waste was being treated.

In addition to the design andoperation of the treatment system, EPAalso bases its decision to sample afacility on whether the piping layout issuch that all samples necessary toevaluate treatment performance can becollected. If piping is not suitable orcannot be easily modified, EPA wouldnot perform a sampling visit.

In order to select potential sites forsampling, EPA has established ahierarchy for conducting its engineeringvisits. The hierarchy is (1) generatorstreating single wastes on site; (2)generators treating multiple wastestogether on site; (3) comercial TSDFs;and (4] EPA in-house treatment. Thebasis of this hierarchy is founded on twoconcepts; (1) EPA believes, to the extentpossible, that it should try to developtreatment standards from data producedby treatment facilities handling only asingle waste, and (2) facilities thatroutinely treat a specific waste have hadthe best opportunity to optimize designparameters. Although excellenttreatment can occur at many facilitiesthat are not high in this hierarchy, EPAhas adopted this approach to avoid,when possible, ambiguities related tothe mixing of wastes. Therefore, EPAprefers on-site treatment facilities wherethe waste of interest is treated alone oras a major component of the waste.handled. If well-designed generatorfacilities that meet EPA criteria are notavailable, the Agency then looks tocommercial treatment facilities wheremixing of many wastes is generallypracticed but where extensiveoptimization of treatment may have stilloccurred. If no suitable TSDF facilitiesare identified, EPA then conducts in-house tests and optimizes the processitself on a more limited basis.

EPA used a number of data bases todetermine if any generators weretreating specific wastes on site or if

there were any commercial TSDFstreating this waste. EPA'sdocumentation for locating on-sitegenerating facilities and/or commercialTSDFs for each waste can be found inthe Docket for today's rulemaking.Although EPA's data bases providedpotential sites of treatment of individualwastes, the data bases provided no datathat would preferentially support theselection of one facility for samplingover another. In cases where severaltreatment sites appear to fall into thesame level of the hierarchy, EPAselected sites for visits strictly on thebasis of what facility could mostexpeditiously be visited and latersampled if justified by the engineeringvisit.

A secondary consideration involvedwith the selection of technologies fortesting was the need to develop datawithin an ambitious statutory deadline.When selecting technologies to test forperformance, these deadlines requiredthat EPA, in some cases, selectdemonstrated technologies forperformance tests based on its technicaljudgment. This judgment considered theunderlying principles of operation of thevarious technologies and any availabledata pertaining to the performance ofthese technologies on specific types ofwastes. EPA's rationale for selecting agiven demonstrated technology ispresented by a treatability group inSection III. A. 10. of the preamble.

4. Hazardous Constituents Consideredand Selected for Regulation (BDAT List)

' The target list of hazardousconstituents to be regulated for allwaste codes covered by today's rule isreferred to by the Agency as the BDATList. This list is derived from acomposite of 396 compounds and/orclasses of compounds that are presentedin 40 CFR Part 261, Appendix VII andAppendix VIII. This composite numberincludes compounds selected by EPA asrepresentatives of some of the classes.EPA then identified 175 of these 396 forwhich EPA could not perform ananalysis of treatment performance dueto one of three reasons: (1) EPA does notpresently have an analytical method forsuch constituents; (2) there are noanalytical standards available forcalibrating the test instrumcnts; or (3)the analytical method requires the use ofan extraction solvent in which thecompound would quickly dissociate. Theremaining 221 compounds comprise theBDAT List.

For certain waste codes, the BDATList was then shortened because it wasunlikely that particular constituentswould be present. EPA's rationale for

11749




shortening the BDAT List for a givenwaste code or waste treatability groupis presented in the Sampling andAnalysis Plan (SAP] developed for eachAgency sampling visit. The SAP for eachtested waste code can be found in theOn-Site Engineering Reports in theDocket for today's rulemaking.

The specific constituents that theAgency selected for regulation in eachtreatability group were, in general, thosefound in the untreated wastes atsignificant (i.e.,' treatable)concentrations. EPA does not propose toregulate constituents where data showthat they would be effectively managedby regulation of other constituents (i.e.,treatment of the regulated constituentsnaturally results in the treatment ofother constituents). EPA's rationale forthe selection of regulated constituentscan be found in the BDAT backgrounddocument for the treatability group inquestion.

5. Compliance with PerformanceStandards

All the treatment standards proposedin today's rule reflect performanceachieved by the Best DemonstratedAvailable Technology (BDAT). As such,compliance with these standards onlyrequires that the treatment value beachieved prior to land disposal; it doesnot require the use of any particulartreatment technology. While dilution ofthe waste as a means to comply with thestandard is prohibited, wastes that aregenerated in such a way as to naturallymeet the standard can be land disposedwithout treatment. With the exception oftreatment standards that prohibit anyland disposal, all treatment standardsproposed today are expressed as aconcentration level.

In today's rulemaking, EPA has usedboth total constituent concentration andTCLP analyses of the treated waste as ameasure of technology performance.EPA's rationale for when each of theseanalytical tests is used is explainedbelow.

For all hazardous organicconstituents, EPA is basing thetreatment standards on the totalconstituent concentration found in thetreated waste. EPA based its decisionon the fact that technologies exist todestroy the various organic compounds.Accordingly, the best measure ofperformance would be the extent towhich the various organic compoundshave been destroyed or the total amountof constituent remaining after treatment.[NOTE: EPA's land disposal regulationfor F001-F005 spent solvents (51 FR40572) uses the TCLP value as ameasure of performance. At the timethat EPA promulgated the treatment

standards for FO01-FO05, useful datawere not available on total constituentconcentrations in treated residuals and,as a result, the TCLP data wasconsidered to be the best measure ofperformance.]

For metal constituents, EPA is usingboth total constituent concentrationand/or the TCLP as the basis fortreatment standards. The totalconstituent concentration is being usedwhen the technology basis includes ametal recovery operation. Theunderlying principle of metal recovery isthe reduction of the amount of metal in awaste by separating the metal forrecovery; therefore, total constituentconcentration in the treated residual isan important measure of performancefor this technology. Additionally, EPAalso believes it important that anyremaining metal in a treated residualwaste not be in a state that is easilyleachable; accordingly, EPA is alsousing the TCLP as a measure ofperformance. It is important to note thenfor wastes where treatment standardsare based on a metal recovery process,the facility has to comply with both thetotal constituent concentration and theTCLP prior to land disposal.

In cases where treatment standardsfor metals are not based on recoverytechniques but rather on stabilization,EPA is using the TCLP as a measure ofperformance. The Agency's rationale isthat stabilization is not meant to reducethe concentration of metal in a wastebut only chemically minimize the abilityof the metal to leach.

6. Identification of BDAT

A detailed discussion of the Agency'sgeneral methodology for establishingBDAT standards is provided in EPA'sland disposal restrictions rule ofNovember 7, 1986, 51 FR 40572. Thissection discusses the specificapplication of the methodology to theFirst Third wastes, and, provides asummary of some of the principalelements of the BDAT methodology.

As a first step in the development ofBDAT-based treatment standards, EPAscreened the available treatment datafor a particular treatability group withregard to the availability of informationdescribing the design and operation ofthe system, the quality assurance/quality control analyses of the data, andthe specific analytical tests used toassess treatment performance. Thisscreening step is consistent with EPA'spromulgated approach in the November7, 1986 rulemaking for F001-F005solvents. Also, this screening steprecognizes the fact that differentperformance measures may beappropriate depending on the

technology used (i.e., total constituentanalysis for incineration vs. TCLP forstabilization) as discussed earlier. Incontrast to the F001-F005 spent solventrule, EPA was able to place a greateremphasis on the design and operation ofthe treatment system for the First Thirdwastes because its field tests have beenmodified to gather more detailed data tosupport these analyses. As discussedearlier, the EPA field tests include datadescribing the operating conditions ofthe treatment unit during the time thattreatment samples were collected.

After the initial screening test, EPAadjusted all treated data values basedon the analytical recovery values inorder to take into account analyticalinterferences associated with thechemical make-up of the treated sample.For example, a treated residual datapoint of 0.2 mg/kg with a recovery valueof 50% would be adjusted to 0.4 mg/kg.In developing recovery data (alsoreferred to as accuracy data), EPAwould first analyze a waste for aconstituent and then add a knownamount of the same constituent (i.e.,spike) to the waste material. The totalamount recovered after spiking minusthe initial concentration in the sampledivided by the amount added is therecovery value.

After adjusting the data, EPA thenaveraged the performance values for thevarious treatment operations andcompared the mean values using theanalysis of variance test (ANOVA), asdescribed in the November 7, 1986preamble (see 51 FR 40591), to determineif one technology performedsignificantly better. EPA's decisionsregarding selection of one technologyover another that resulted from thismethodology can be found in the"Identification of BDAT" sections thatfollow -for each treatability group.

7. BDAT Treatment Standards for"Derived-From" and "Mixed" Wastes

a. Applicability of BDA T to "Derived-From" Wastes From Treatment TrainsGenerating Multiple Residues. In anumber of instances in this proposal, theproposed BDAT consists of a series ofoperations, each of which generates awaste residue. For example, theidentified BDAT for wastes K103 andK104 is solvent extraction, steamstripping and activated carbonadsorption. Each of these treatmentsteps generates a waste requiringtreatment, namely a solvent-containingstream from solvent extraction, astripper overhead, and spent activatedcarbon. Treatment of these wastes maygenerate further residues- for instance,spent activated carbon (if not

11750




regenerated) could be incinerated,generating an ash and possibly ascrubber water waste. Ultimately,additional wastes are generated thatmay require land disposal. With respectto these wastes, the Agency wishes toemphasize the following points:

1. All of the residues from treating theoriginal listed waste are likewiseconsidered to be the listed waste byvirtue of the derived-from rule containedin 40 CFR 261.3(c)(2). Consequently, allof the wastes generated in the course oftreatment would be prohibited from landdisposal unless they satisfy thetreatment standard or meet one of theexceptions to the prohibition.

2. The Agency's proposed treatmentstandards generally contain aconcentration level for wastewaters anda concentration level fornonwastewaters. These treatmentstandards apply to all of the wastesgenerated in treating the originalprohibited waste. Thus, all solidsgenerated from treating K103 and K104would have to meet the treatmentstandard for nonwastewaters. Allderived-from wastes meeting theAgency definition of wastewater for thisrule (i.e., less than 1% total organiccarbon (TOC) and less than 1% totalsolids) would have to meet thetreatment standard for wastewaters.EPA wishes to make clear that thisapproach is not meant to allow partialtreatment only to change the applicabletreatment standard. Therefore,treatment of wastes with greater than1% TOC (and less than 1% solids) to lessthan 1% TOC does not necessarily makethe wastewater treatment standardapplicable.

The Agency has not performed tests,in all cases, on every waste that canresult from every part of the treatmenttrain. However, the Agency's treatabilitylevels generally are based on treatmentof the most concentrated form of thewaste identified. Consequently, theAgency believes that the lessconcentrated wastes generated in thecourse of treatment also will be able tobe treated to meet this level.

b. Applicability of BDA T to Mixturesand Other Derived-From Residues.There is a further question as to theapplicability of the BDAT treatmentlevels to residues generated not fromtreating the waste (as discussed above),but generated instead from other typesof management. Examples arecontaminated soil or leachate that isderived from managing the waste. Inthese cases, the mixture is still deemedto be the listed waste, either because ofthe derived-from rule, the mixture rule(§ 261.3(a)(2)(iv)), or because the listedwaste is contained in the matrix (see,

e.g., § 261.33(d)]. The prohibition for theparticular listed waste consequentlyapplies to this type of waste.

The Agency believes that the majorityof these types of residues can meet thetreatment standards for the underlyinglisted wastes (with the possibleexception of contaminated soil anddebris for which the Agency is currentlyinvestigating whether it is appropriate toestablish a separate treatabilitysubcategorization). For the most part,these residues will be less concentratedthan the original listed waste. TheAgency's treatability levels also make agenerous allowance for processvariability by assuming that alltreatability values used to establish thestandard are lognormally distributed(see 51 FR 40590-91, November 7, 1986).The waste also might be amendable to arelatively nonvariable form of treatmenttechnology such as incineration. Finally,and perhaps most importantly, the rulescontain a treatability variance whichallows a petitioner to demonstrate thathis waste cannot be treated to the levelspecified in the rule (see § 268.44). Thisprovision provides a safety valve thatallows persons with unusual wastematrices to demonstrate theappropriateness of a different standard.The Agency notes that to date, it has notreceived any petitions under thisprovision (for example, for residuescontaminated with a prohibited solventwaste), indicating, in the Agency's view,that the existing standards are generallyachievable.

8. Transfer of Treatment Standards

In today's notice, EPA is proposingsome treatment standards that are notbased on testing of the treatmenttechnology of the specific waste subjectto the treatment standard. Instead, theAgency determined that the constituentspresent in the waste can be treated tothe same performance levels asobserved in other wastes for which EPAhas previously developed treatmentdata. As stated in previous BDATrulemakings, EPA believes transferringtreatment performance for use inestablishing treatment standards foruntested wastes is valid technically incases where the untested wastes aregenerated from similar industries orfrom similar processing steps. Asexplained earlier in this preamble,transfer of treatment standards towastes from similar processing stepsrequires little formal analysis because ofthe likelihood that similar productionprocesses will produce a waste matrixwith similar characteristics. However, inthe case where only the industry issimilar, EPA more closely examines thewaste characteristics prior to concluding

that the untested waste constituents canbe treated to levels associated withtested wastes. The Agency's method forconducting this analysis is discussedbelow.

EPA's undertakes a two-step analysiswhen determining whether wastesgenerated by different processes withina single industry can be treated to thesame level of performance. First, EPAreviews the available data on thoseparameters which are expected to affecttreatment selection. EPA has identifiedsome of the most important constituentsand other parameters needed to selectthe treatment technology appropriate fora given waste. A detailed discussion ofeach analysis, including how eachparameter was selected for each waste,can be found in the backgrounddocument for each waste.

Second, when an individual analysissuggests that an untested waste can betreated with the same technology as awaste for which treatment performancedata are already available, EPA thenanalyzes a more detailed list ofconstituents that represent some of themost important waste characteristicswhich the Agency believes will affectthe performance of the technology. Byexamining and comparing thesecharacteristics, the Agency determineswhether the untested wastes willachieve the same level of treatment asthe tested waste. Where the Agencydetermines that the untested waste canbe treated as well as the tested waste,the treatment standards can betransferred. A detailed discussion of thistransfer process for each waste can befound in the BDAT backgrounddocument for each waste or wastetreatability group.

9. "No Land Disposal" as the TreatmentStandard

EPA is proposing "No Land Disposal"as the treatment standard for several ofthe First Third wastes. This standard isanalogous to the no discharge standardestablished as BAT (best availabletreatment) under the Clean Wate Act'seffluent guideline program. It indicatesthat after examining available data, theAgency has identified that: (1) Thewaste can be totally recycled (i.e., on-site closed-loop recycling); (2) the wasteis not currently being land disposed; or(3) the waste is no longer beinggenerated.

An alternative to establishing "NoLand Disposal" as the treatmentstandard would be to indicate that "0" isthe BDAT treatment standard (i.e.,concentration level) for hazardousconstituents. This appears to the Agencyto be a less desirable way to proceed,

11751




given that the analytical limit ofdetection is always greater than zero.Because technologies exist that makeland disposal for some wastesunnecessary, and because "0" reallymeans the analytic detection limit andnot truly zero, EPA believes thatspecifying "No Land Disposal" as thetreatment standard is a better way ofexpressing its intention.

The'Agency notes further that it couldsimply allow the statutory prohibition totake effect to achieve the intended resultof no land disposal. The drawback withthis approach is that it allows nopossibility of granting a variance from atreatment standard for those wastes thatmight not be amenable to the BDATtreatment. (In the absence of a treatmentstandard, a person would have toinitially petition the Agency to establisha treatment standard for the waste, amore cumbersome and time-consumingprocess than applying for a varianceunder § 268.44.) Accordingly, the Agencybelieves the best way to proceed is toestablish "No Land Disposal" as thetreatment standard where a nodischarge treatment technology isidentified as BDAT.

10. Waste-Specific Treatment Standards

This section describes thedevelopment of BDAT treatmentstandards for all of the First Thirdtreatability groups covered by today'srule. It includes tables showing thespecific constituents regulated, as wellas the treatment standards.a. K061-Emission Control Dust/Sludge

from the Primary Production of Steelin Electric Furnaces1. Industry Affected and Waste

Description. The listed waste K061 isgenerated in the primary production ofsteel in electric furnaces. The Agencyestimates that approximately 85 plantsproduce steel in electric furnaces. Thesefacilities are primarily located in theEastern and North Central parts of theUnited States.

The primary production of steel inelectric furnaces results in thegeneration of particulate emissionswhich contain hazardous constituentspresent in the feed materials. Theparticulates captured by air pollutioncontrol devices constitute the listedK061 waste.

2. Demonstrated TreatmentTechnologies. K061 waste consistsprincipally of iron and zinc. In additionto zinc, other BDAT list metals ofconcern include lead of approximatelytwo percent and chromium ranging from500 ppm to 10% (by weight). The watercontent of the waste is approximately10% except where wet scrubbers areused to generate this waste. The

demonstrated technologies that theAgency has identified for treatment ofthis waste are high temperature metalsrecovery and stabilization. Hightemperature metals recovery is currentlyused to recover metals such as zinc andchromium from the waste for reuse; thistechnology also results in the formationof a treated residual (i.e., slag) whichwas analyzed to determine theperformance of this technology.Stabilization also is used directly toreduce the leachability of the metals inthe K061 waste that has not beenprocessed by metals recoverytechnology. EPA tested both of thesetechnologies as part of the developmentof treatment standards for K061.

3. Data Base. The Agency has 55 datapoints for treatment of K061 wastes.Fifteen data points are from fourfacilities using high temperature metalsrecovery, seven of which were collectedby EPA. Forty (40) data points representthe use of stabilization by two facilities,nine of which were collected by EPA.

EPA's screening of the data withregard to the design and operation of thetreatment unit resulted in the deletion oftwelve of the fifteen data points for hightemperature metals recovery. Thirty-oneof the stabilization data values wererejected because these data did notreflect testing by the TCLP procedure;the remaining nine were obtained usingthe TCLP and represent proper designand operation. Accordingly, thesetwelve data points were considered inthe development of the treatmentstandards for K061.

4. Identification of BDA T. BDAT forK061 was determined to be hightemperature metals recovery. As aresult, EPA is proposing treatmentstandards for this waste based on thetreatment residual (i.e., slag) generatedby this technology.

The Agency performed an analysis ofvariance test for TCLP performancelevels achieved by high temperaturemetals recovery and by stabilization.The results show that high temperaturemetals recovery provides significantlybetter reduction of lead and zinc thandoes stabilization, and equivalentreductions of cadmium, chromium, andmercury in the TCLP's leachate. TheAgency believes that establishing hightemperature metals recovery as BDAT isconsistent with the national policyidentified in HSWA to reduce theamount of hazardous waste generated.

The Agency is aware of at least fourfacilities in the United States and ten inforeign countries that use hightemperature metals recovery to treatK061 waste. Therefore, EPA believesthat high temperature metals recovery isdemonstrated to treat K061. High

temperature metals recovery is judgedto be available to treat K061 wastebecause [1) this treatment technology iscommercially available or can bepurchased from the proprietor; and (2)high temperature metals recoveryprovides a substantial reduction in thelevel of regulated constituents describedabove.

The question of identifying BDAT for _K061 also requires some discussion ofseveral other sets of EPA regulationsrelating specifically to burninghazardous wastes for materials recoveryin industrial furnaces, and relating moregenerally to the issue of when secondarymaterials are RCRA solid wastes undersuch circumstances. The mostsignificant issue presented is whetherEPA may permissibly establish a BDATtreatment standard for the slag whichresults from high temperature metalrecovery of this waste.

The initial question is whether electricarc steel dust is a RCRA solid andhazardous waste when it is sent to anindustrial furnace for high temperaturemetals recovery. Under the Agency'sexisting regulations, this activity isclassified as the type of recycling knownas "reclamation" because it involvesrecovery of metals contained in theelectric arc furnace dust (see 40 CFR261.1(c)(4)). Because the material is alisted sludge, it is therefore defined as asolid waste under § 261.2(c)(3).

The Agency believes that this is anappropriate classification because thereis a strong element of waste treatmentcharacterizing this recycling activity:these electric arc dusts are typicallylandfilled, and they are not reclaimed incontinuous, on-going processes, butrather in processes different from steelproduction (most often primary zincsmelting or some type of secondarymetal recovery). Storage practicespreceding reclamation of this waste alsocan involve direct placement on the land(for instance, in open waste piles),another indication that the electric arcdust is a waste. For a more detaileddiscussion, see 50 FR 641 (January 4,1985) which presents the decisionfactors to determine whether sludgesand byproducts should be designated assolid wastes when they are to bereclaimed. EPA has recently proposed tocodify these factors, with somemodifications, in its regulations (53 FR519 and 529, January 8, 1988).

The recent opinion of the District ofColumbia Circuit Court of Appeals inAmerican Mining Congress v. EPA (824F. 2d 1177) does not change thisanalysis. The court stated that when agenerator has a secondary material ofno further use to him which he discards

11752




by giving to another person forrecycling, the material is a "discardedmaterial" within the meaning of RCRAsection 1004(27). An example, as used inthe opinion, is used oil given by theoriginal generator to a second person forrecycling (824 F. 2d at n. 14). The electricarc furnace dust is similarly discardedby the generator when it is no longeruseful to the original generator, is givento another entity for recycling, and is notrecycled in the original process or evenin another steel process. Thus, it is notthe type of in-process, undiscardedmaterial used in on-going, continuousprocesses found in the American MiningCongress case to be an undiscardedmaterial (see generally, 53 FR 519, 520-521, and 522-523, January 8, 1988).

It should be noted that even if theK061 waste were not deemed to be awaste when it is reclaimed in processesunrelated to steel production, EPA stillcould establish BDAT standards forK061 that is being disposed, orotherwise ensure that the waste isrecycled by high temperature metalsrecovery rather than by being landdisposed. For example, the Agencycould simply prohibit land disposal ofthe waste and indicate that hightemperature metals recovery is BDAT.The Agency also could let the statutoryprohibition for the waste take effect,which (as a practical matter) wouldhave the same result.

Since the Agency can requirerecycling as a BDAT standard, it mustconsider whether it has authority to settreatment standards for the slag thatresults from high temperature metalsrecovery. The fact that K061 electric arcdust is a solid and hazardous wastewhen it it sent for high temperaturemetals recovery does not end theinquiry. The Agency has discussed in anumber of preambles the question ofwhether a waste destined for materialrecovery in an industrial furnacecontinues to be a waste when it isactually fed into the furnace. The issuearises because industrial furnaces arenormally used as essential componentsof industrial processes, and when theyare actually burning secondarymaterials for material recovery can beinvolved in the very act of production,an activity normally beyond theAgency's RCRA authority (see 50 FR630, January 4, 1985; 50 FR 49167,November 24, 1985: and 52 FR 16889-990,May 6, 1987). Accordingly, the Agencyhas stated that, even when secondarymaterials sent to be reclaimed in thesedevices are wastes before they arereclaimed; they cease to be wasteswhen they are actually placed in theindustrial furnace for materials

recovery. To retain authority overindustrial furnaces where wastetreatment is a driving element of thereclamation activity, however, theAgency has further stated that thesecondary material being reclaimed inthe industrial furnace must be"indigenous" to that furnace for it tocease being a waste. The Agency hasproposed to define "indigenous" to beany material generated by the same typeof furnace in which it will be reclaimed(see the proposed § 266.30(a), 52 FR17034, May 6, 1987). The Agencysuggested other possible alternatives inthe May 6 proposal, and commenterssuggested additional possibilities whichthe Agency is now considering.

The K061 electric arc furnace dustwould be considered to be indigenous,under the May 6 proposal describedabove, to the high temperature metalsrecovery furnaces used as the basis forthe proposed treatment standard. This isbecause the metals recovery furnacesare smelting furnaces, and the electricarc furnace is also a type of smeltingfurnace. Consequently, the K061 dustwould cease to be a solid waste when itis resmelted were the Agency to finalizethe propsoed definition of "indigenous".This would mean that the slag producedin the metals recovery furnace duringthe resmelting of the dust would nolonger automatically be deemed to be ahazardous waste by virtue of the"derived-from" rule in 40 CFR 261.2(c),because it would no longer derive fromtreatment of a listed hazardous waste(the K061 waste would no longer be ahazardous waste at the moment ofburning). Thus, the slag would be ahazardous waste only if it exhibited acharacteristic of hazardous waste.(Depending upon the type of devicedoing the smelting, and the feedmaterials to that device, the slag mightalso presently be excluded fromregulation as a waste from the mining,beneficiation or processing of an ore ormineral (see 52 FR 17012, May 6, 1987).)Under these circumstances, the Agencyprobably could not set treatmentstandards for the slag which does notexhibit a characteristic of hazardouswaste (which would be the case for allof the slags the Agency sampled inevaluating BDAT for this waste), sincethe land disposal prohibitions applyonly to "hazardous wastes". In addition,any prohibition for slag exhibiting acharacteristic of hazardous waste wouldtake effect on May 8, 1990, as a ThirdThird waste.

Thus, although the Agency hasproposed treatment standards based ontotal and leachable metalconcentrations in the slag, EPA solicits

comment on these issues with the viewthat EPA will likely establish either"total recycle" or "no land disposal" asthe treatment standard for K061 shouldit determine not to set treatmentstandards for the slag.

There is one further issue relating tothis waste. Electric arc furnace dust isfrequently recycled by being used as aningredient in fertilizers, the end resultbeing that the dust is placed directly onthe land when the fertilizer is applied.Under the Agency's rules, both theelectric arc furnace dust and theresulting waste-derived fertilizer arehazardous wastes (see 40 CFR261.2(c)(1)). The recycling activity is an

,example of the "use constitutingdisposal" category of recycling. TheAmerican Mining Congress opiniondoes not affect the material's status as asolid waste because the recyclingactivity contains an element of discard:it is like a form of land disposal. Thecourt in fact characterized a "useconstituting disposal" recyclingsituation (direct reuse of a pesticidedrum as a trash can) as a type ofdisposal involving solid waste (see 53FR 521-522, January 8, 1988).

EPA's rules presently exempt theK061-derived fertilizer from substantiveregulation. Because this exemption iscontained in Part 261, K061 waste that isrecycled in this way is also exempt fromthe land disposal prohibitions (see 40CFR 268.1). The Agency solicitscomment whether these fertilizersshould be exempt from the land disposalprohibitions program. In choosing toexempt the fertilizers from regulation,the Agency indicated it was doing soonly until it could determine anappropriate regulatory regime for thefertilizers (50 FR 647, January 4, 1985).Since the fertilizers could contain highconcentrations of mobile toxic metals(materials in the record of the solidwaste definition rulemaking nowincorporated into the record for thisproposed rule show high concentrationlevels of lead and cadmium in some ofthese waste-derived fertilizers), EPAwas certainly not crafting an exemptionbased on an Agency determination thatthere would be no risk from applyingthese fertilizers. Consequently, the issuenow facing the Agency is whether tocontinue the exemption which wouldallow this waste to be recycled in amanner arguably at odds with thestatutory land disposal prohibitionsprovisions, by allowing continuedplacement of untreated hazardous wasteon the land. Furthermore, the Agencyhas identified another type of recyclingof this waste which does not involveplacement of the waste on the land as

11753




the basis for BDAT, so that anyregulations which discourage use of theelectric arc furnace dust in fertilizerwould channel the waste to a (at leastarguably) more environmentallybeneficial type of recycling. The Agencyconsequently solicits comment onwhether these waste-derived fertilizersshould be subject to the land disposalrestrictions and to the treatmentstandards, effective on the same date asall other prohibitions applicable to K061.

5. Regulated Constituents andTreatment Standards. The proposedregulated constituents for K061 arelisted below. The Agency is proposingthat facilities must comply with both thecomposition and TCLP values of slagresulting from high temperature metalsrecovery. EPA believes that bothmeasures of performance are necessaryto adequately reflect BDAT-typetreatment because available data showthat facilities could achieve the totalconstituent concentration in the slag andstill have a high leachate value becauseof poor operation of the treatmentsystem. The Agency is aware thatrequiring the waste to meet bothmeasures will eliminate the possibilityof using stabilization alone to meet thetreatment standard in most, if not all,cases. The Agency is specifically askingfor comment on the use of bothmeasures (as opposed to only one). (Asdiscussed above, however, the Agencyalso is soliciting comment on whether itshould set treatment standards for theslag, or find an alternative regulatorymeans of ensuring that treatmentresidues achieve total concentration andleachable metal concentrationsachievable by high temperature metalsrecovery.)

EPA is proposing "No Land Disposal"as the treatment standard for K061wastewaters because the Agency is notaware of any such waste beinggenerated. The establishment of such a"treatment standard" results in the sameeffect as a prohibition, only it allows forthe possibility of a variance from thistreatment standard in case such a wasteis generated.

For K061 nonwastewaters, EPAproposes the following treatmentstandards:

BDAT TREATMENT STANDARDS FOR K061(Nonwastewater)

Maximum for any singlegrab sample

Constituent Totalcomposition TCLP (mg/I)

(mg/kg)

Cadmium............ 44.0 0.19Total chromium .. ... . 1730.0 0.33

BDAT TREATMENT STANDARDS-FOR

K061-Continued

(Nonwastewater)



(mg/kg)

Lead ............... 20,300.0 0.09Mercury .......................... 0.28 0.02Zinc ................................. 24,100.0 0.50

b. K062-Spent Pickle Liquor Generatedby Steel Finishing Operations ofFacilities Within the Iron and SteelIndustry (SIC Codes 331 and 332)1. Industries Affected and Waste

Description. The listed waste K062 isgenerated by the iron and steel industry(SIC Codes 331 and 332) from steelfinishing operations. The Agencyestimates that 978 facilities have steelfinishing operations that may begenerating the listed waste K062. Thesefacilities are primarily located in theEastern and North Central portions ofthe U.S.

In steel finishing operations, oxidescale on steel products is removed witha heated solution of concentrated acidor acids in a process called pickling.When the acid solution (called pickleliquor) loses its effectiveness throughuse, it is referred to as "spent". This isthe listed K062 waste.

2. Demonstrated TreatmentTechnologies. K062 waste contains 4BDAT metals at significantconcentrations, has a dissolved solids ofapproximately 12 percent, and a watercontent of approximately 85 percent.The BDAT metals are chromium, nickel,copper, and lead with approximaterespective concentrations of 7000, 3000,400, and 200 ppm. The technology thatthe Agency has identified to treat thiswaste consists of a preliminary step forreduction of hexavalent chromiumfollowed by chemical precipitation andsome form of solids removal anddewatering, which may include settlingand/or mechanical operations such asvacuum filtration. The metals in theprecipitated solids may be treated bystabilization to reduce their leachabilityor high temperature metals recovery.

A comment received on the August 12,1987 Notice of Data Availability andRequest for Comments (52 FR 29992)suggested that K062 can be treated byhigh temperature metals recovery. TheAgency, therefore, i including hightemperature metals recovery as ademonstrated technology for K062wastewaters and nonwastewaters. EPArequests comment on the types andquantities of K062 wastes treated by

recovery technologies, and specificallyasks for data describing theperformance achievable by metalsrecovery. Upon review of those data, theAgency may promulgate final standardsbased on metals recovery.

The specific technology that theAgency tested for K062 consisted ofchromium reduction, chemicalprecipitation with lime and sulfide andvacuum filtration.

3. Data Base. (i) Wastewaters. TheAgency has collected 11 data pointsfrom one facility using the treatmentsystem noted above. All 11 data pointsrepresent a well-designed and well-operated treatment system and wereused in the development of treatmentstandards. The Agency has extensivedata on wastewaters that would beclassified as K062 under the "derivedfrom" rule, but these data were not used.EPA determined that these untreatedwaste concentrations were considerablylower than K062 as generated, andtherefore, not fully representative ofK062. That is, treatment standardsbased on treating these unconcentratedresidues might not be achievable for themore concentrated K062, as generated.

(ii) Nonwastewaters. The Agency has11 TCLP data points for nonwastewaters(dewatered sludges) generated at thesame facility where the wastewater testwas conducted. The sludges were-generated by lime and sulfideprecipitation and dewatering the sludgewith vacuum filtration. Because all 11data points appear to represent well-designed and well-operated treatment,none of the points were excluded fromthe development of the treatmentstandards.

4. Identification of EDA T. BDAT forK062 was determined to be chromiumreduction followed by chemicalprecipitation and vacuum filtration. Thistechnology is a well demonstratedwastewater treatment technology that isused at numerous facilities throughoutthe country. Therefore, EPA believesthat this technology is demonstrated totreat K062 waste. The Agency has nodata for treatment of this waste usingany other technology.

This treatment technology is judged tobe available to treat K062 wastebecause (1) this treatment technology iscommercially available or can bepurchased from the proprietor, and (2)this treatment technology provides asubstantial reduction of hazardousconstituents.

5. Regulated Constituents andTreatment Standards. The regulatedconstituents for K062 and the treatmentstandards for wastewater andnonwastewater are listed below. EPA's

11754



Federal Register J Vol. 53, No. 68 / Friday, April 8, 1988 / Proposed Rules

rationale for selection of the regulatedconstituents is presented in the BDATBackground Document for First ThirdWastes-K062. For reasons presented inSection I1. A. 7., the standards shown*below apply to all K062 wastewatersand nonwastewaters with the followingexception. Under 40 CFR 261.3(c)[2)(ii),residues generated as a result of lime(Ca(OH),) treatment are not hazardouswastes and, therefore, any suchdewatered residues would not have tocomply with the treatment standards.The treatment standards do apply,however, to residues generated by otherthan lime precipitation.

BDAT TREATMENT STANDARDS FOR K062(NONWASTEWATER)



(mg/kg)

Metals:Total chromium 0.094Lead ........................... 0.37

Not applicable.

BDAT TREATMENT STANDARDS FOR K062(WASTEWATER)



(mg/I)

MetalsTotal chromium ......... 0.32Copper ....................... 0.42Nickel ......................... 0.44Lead ........................... 0.04

Not applicable.

c. K016--Heavy Ends or DistillationResidues from the Production ofCarbon Tetrachloride

K018-Heavy Ends from theFractionation in Ethyl ChlorideProduction

K019-Heavy Ends from theDistillation of Ethylene DichlorideProduction

K020-Heavy Ends from theDistillation of Vinyl Chloride inVinyl Chloride Monomer Production

K030-Column Bottoms or HeavyEnds from the Combined Productionof Trichloroethylene andPerchloroethylene

1. Industries Affected and WasteDescriptions. These five listedhazardous wastes are generated in theproduction of chlorinated chemicals inthe organic chemical industry. TheAgency estimates that there are 52

plants which may produce the listedwastes. These facilities are locatedprimarily in the south central portion ofthe United States. Brief descriptions ofprocesses which may generate each ofthe listed wastes are given below.

Carbon tetrachloride is producedcommercially via the chlorination ofhydrocarbon and/or chlorocarbonfeedstocks, methane, or carbondisulfide. The distillation of the crudecarbon tetrachloride results indistillation residues (heavy ends]. Thesedistillation residues are the listed wasteK016.

Ethyl chloride is producedcommercially by the catalytichydrochlorination of ethylene. Crudeethyl chloride is further refined byfractionation. The heavy ends from thefractionation column composes thelisted waste K018.

Ethylene dichloride is producedseparately or by a combined processinvolving the chlorination of ethyleneand the oxychlorination of ethylene viahydrogen chloride. The process includesthe distillation of the crude ethylenedichloride which results in distillationbottoms (heavy ends) which containtreatable quantities of organicconstituents. These distillation bottomsare the listed waste K019. It should notnoted that the May 28, 1986 schedule forrestricting the listed hazardous wastesfrom land disposal (51 FR 1900) listsK019 in the second third of listedwastes. Therefore, K019 was notoriginally scheduled for regulation under40 CFR Part 268 until June 8, 1989.However, due to the similarity betweenK019 and the other wastes in thistreatability group, the Agency haschosen to accelerate the schedule forthis waste, and will address K019 in thisproposed rulemaking.

Vinyl chloride monomer is producedby the thermal cracking of ethylenedichloride or the hydrochlorination ofacetylene. The process includes thepurification of crude vinyl chloridemonomers via distillation which resultsin heavy ends. The heavy ends composethe listed waste K020.

The combined production ofperchlorethylene and trichloroethyleneis accomplished by the directchlorination or oxychlorination ofethylene dichloride or other chlorinatedethane or ethylene feedstocks. Thelisted waste K030 is generated whenrecycled streams from the chlorinationor oxychlorination processes becomecontaminated and must be removed anddisposed.

2. Demonstrated TreatmentTechnologies. The K016, K018-K020,K030 waste group generally contains 5percent water, 5 percent chlorinated

organic constituents and 90 percentother nonchlorinated organicconstituents. These wastes generallycontain high levels of filterable solids.The technologies that the Agency hasidentified for treatment of these wastesare (1) incineration technologiesincluding rotary kiln and fluidized bedincineration and (2) solvent extractionfollowed by stabilization or hightemperature metal recovery for metals.Fluidized bed incineration or rotary kilnincineration is a destruction technologyapplicable to organic bearing wasteswith solids concentrations that preventuse of liquid injection incineration.Solvent extraction removes organicconstituents from a waste by exploitingthe relatively high solubilities of thewaste constituents in a particularsolvent.

The Agency tested rotary kilnincineration for treatment of thistreatability group. The Agency alsoconsidered testing fluidized bedincineration of this waste; however, EPAwas unable to identify any facilities thatwere incinerating these wastes in afluidized bed incinerator.

3. Data Base-i. Nonwastewaters. Forwaste code K019, the Agency has sixuntreated and treated data points fromone plant. These data sets include bothtotal constituent concentration andTCLP leachate values. All data setswere used in the development of thetreatment satndards because data showthat the unit was properly operatedduring the time the waste was treated.

For K016, K018, K020, and K030, theAgency has data characterizing theconstituents for each waste code fromsampling and analysis conducted byEPA's hazardous waste listing program.Due to the physical and chemicalsimilarity between these wastes andKO19, treatment standards from wastecode K019 are being transferred towaste codes K016, K018, K020, and K030.(EPA's analysis regarding the transfer oftreatment standards can be found in theBDA T Background Document forChlorinated Organics, Volume III. Thereis also a discussion in Section Il1. A. 8.in this preamble.]

ii. Wastewaters Generated fromIncineration. The Agency has sixscrubber water data points whichrepresent destruction of BDAT organiccompounds in the afterburner of therotary kiln incinerator. The data reflecttotal constituent analyses; all data wereused in the development of treatmentstandards because data collected byEPA during treatment showed that theafterburner was properly operatedduring the treatment test.

11755




4. Identification of BDA T. BDAT forwaste group K016, K018-K020, K030 wasdetermined to be rotary kilnincineration. This technology was theonly technology for which the Agencyhas treatment data as noted in theprevious subsection (Data Base). TheAgency believes, however, that a welldesigned and operate fluidized bedincineration wil meet the BDATstandards. While a rotary kilnincinerator generally operates at highertemperatures and longer residencetimes, the increased turbulence (mixing)of a fluidized bed incinerator shouldallow this technology to achieve thesame results. Accordingly, EPA willinclude fluidized bed incineration in itscapacity estimates for K016, K018-K020,and K030.

Incineration is demonstrated at over250 facilities and the Agency is aware oftwo facilities that use rotary kilnincineration to treat K019 waste.Therefore, the Agency believesincineration is demonstrated to treatK019. The Agency also believes thistechnology is available because (1)incineration technologies arecommercially available or can bepurchased from a proprietor; and (2)incineration provides substantialreduction of the concentration of organichazardous constituents. For a detaileddescription of the reductions exhibitedby treatment of these wastes, refer tothe BDA T Background Document forFirst Third Wastes-K016, KO18-K020,K030.

5. Regulated Constituents andTreatment Standards. Below are listedthe regulated constituents for K016,K018-K020, K030 and the treatmentstandards for wastewaters andnonwastewaters. For reasons discussedearlier in this preamble, the treatmentstandards apply to all wastewaters andnonwastwaters classified as K016, K018,K019, K020, and/or K030.

BOAT TREATMENT STANDARDS FOR K016

(Nonwastewater)


Constituent Total

composition TCLP (mg/I)(mg/kg)

Tetrachloroethene 5.96 ()Hexachlorobenzene ....... 27.2 )Hexachlorobutadiene 5.44 ()Hexachlorocyclopenta-

diene ........................... 5.44 U)Hexachloroethane 27.2 ()

I Not applicable

BOAT TREATMENT STANDARDS FOR K016(Wastewater)

Maximum for any single

grab sample

Constituent Total


Tetrachloroethene ......... 0.007 ()Hexachlorobenzene ....... 0.033 ()Hexachlorobutadiene 0.007 (')Hexachlorocyclopenta-

diene ............................. 0.007 ( )Hexachloroethane .......... 0.007 (')

I Not applicable.


(Nonwastewater)


Constituent Total


Chloroethane .................. 5.96 ()1,t-Dichloroethane 5.96 U)1,2-Dichloroethane 5.96 ()1,1,1-Trichloroethane 5.96 U)Hexachlorobenzene 27.2 ()Hexachloroethane .......... 27.2 ()Hexachlorobutadiene .... 5.44 )Pentachloroethane 5.44 ()

Not applicable.


(Wastewater)


Constituent Total

composition TCLP (mg/I)(mg/I)

Chloroethane ................... 0.007 ()Chloromethane ................ 0.007 t')1,1-Dichloroethane 0.007 (1)1,2-Dichloroethane 0.007 .)1,1,1-Trichloroethane 0.007 (')Hexachlorobenzene 0.033 U)Hexachlorobutadiene 0.007 (I)Pentachloroethane ......... 0.007 (I)

Not applicable.


(Nonwastewater)


Constituent Total


Chloroform ..................... 5.96 (')1,2-Dichloroethane 5.96 ()Tetrachloroethane 5.96 (I)1,1,1-Trichloroethane .... 5.96 (I)Bis(2-chloroethyl)ether.. 5.44 U)Hexachloroethane .......... 27.2 ()Naphthalene ................... 5.44 (')Phenanthrene ................. 5.44 ()1,2,4-Trichlorobenzene. 18.7 (')

I Not applicable.

BOAT TREATMENT STANDARDS FOR K01 9(Wastewater)


Constituent Total


Chlorobenzene................ 0.006 ()Chloroform ....................... 0.007 ()1,2-Dichloroethane ......... 0.007 (')Tetrachloroethane .......... 0.007 ()1,1,1-Trichloroethane ..... 0.007 ()Bis(2-chloroethyt)ether 0.007p-.Dichlorobenzene .......... 0.008 (')Hexachloroethane .......... 0.033 (')Naphthalene................... 0.007 (I)1,2,4,5-

Tetrachlorobenzene 0.017 (')1,2,4-Trichlorobenzene.. 0.023 ()Fluorene ........................... 0.007 (')Phenanthrene .................. 0.007 ()

Not applicable.


(Nonwastewater)


Constituent Total


1,2-Dichloroethane 5.96 (')1,1,2,2-

Tetrachloroethane ....... 5.44 ()Tetrachloroethane .......... 5.96 ('

Not applicable.

BDAT TREATMENT STANDARDS FOR K020

(Wastewater)


Constituent Total


1,2-Dichloroethane ........ 0.007 (')1,1,2,2-

Tetrachloroethane 0.007 (')Tetrach!oroethene ......... 0.007 ()

Not applicable.


(Nonwastewater)


Constituent Total


Tetrachloroethene 5.96 (I)Hexachlorobutadiene 5.44 ()Hexachloroethane .......... 27.2 ()Hexachlonopropene ...... 18.7 ()Pentachlorobenzene 27.2 (I)Pentachloroethane 5.44 ()1,2,4,5-

Tetrachlorobenzene 13.6 ()1,2,4-Trichlorobenzene. 18.7 1)

Not applicable.

11756





(Wastewater)


grab sample

Constituent Total


Tetrachloroethene .......... 0.007 ()Hexachlorobutadiene 0.007 (I)Hexachloroethane .......... 0.033 (')Pentachloroethane ......... 0.007 (')1,2,4,5-

Tetrachlorobenzene 0.017 (')1,2,4-Trichlorobenzene.. 0.023 (')o-Dichlorobenzene - 0.008 (')p-Dichlorobenzene .......... 0.008 (')

Not applicable.

d. K024-Distillation Bottoms from theProduction of Phthalic Anhydride fromNaphthalene

1. Industries Affected and WasteDescription. The listed waste K024 isgenerated in the production of phthalicanhydride from naphthalene in theorganic chemical industry. The Agencybelieves that only one facility producesphthalic anhydride using naphthalene asa feed stock.

The manufacturing process includesthe distillation of crude phthalicanhydride which results in distillationbottoms (heavy ends) which containtreatable levels of organic constituents.The distillation bottoms are the listedwaste K024.

2. Demonstrated TreatmentTechnologies. The listed waste K024 hasa high organic solids concentration withphthalic anhydride as the principalBDAT constituent. The demonstratedtechnologies that the Agency hasidentified for treatment of this waste areincineration technologies includingfluidized bed and rotary kilnincineration. Fluidized bed incinerationand rotary kiln incineration aredestruction technologies demonstratedfor organic bearing wastes with solidsconcentrations that prevent liquidinjection incineration.

The Agency tested rotary kilnincineration for K024. EPA did not locateany facilities using fluidized bedincineration for K024.

3. Data Base. i. Non wastewaters. Forwaste code K024 the Agency hastreatment data from one plant. At thisplant, the Agency has 6 data pointsrepresenting residual concentrationsfound in the ash from rotary kilnincineration. These data reflect

composition and TCLP analysis oforganics.

ii. Wastewaters Generated fromIncinerator. The Agency has sixscrubber water data points whichrepresent destruction of BDAT organiccompounds in the afterburner of therotary kiln incinerator. These datareflect total constituent analyses.

4. Identification of BDAT. BDAT forK024 waste was determined to be rotarykiln incineration. This technology wasthe only technology for which theAgency has treatment data as noted inthe previous section (Data Base).

Rotary kiln incineration isdemonstrated at over 50 facilities. TheAgency is not aware of any generator orTSDF facilities currently using rotarykiln incineration for treatment of K024.However, EPA believes rotary kilnincineration is demonstrated for K024 inthat it is being used to treat wastessimilar to K024 with regard toparameters affecting treatment selectionfor K024, including low water contentand high organic solids concentration.EPA has confirmed this judgement bydemonstrating the actual performanceachievable when K024 was incineratedin EPA's own in-house rotary kiln.

Rotary kiln incineration is judged tobe available to treat K024 because (1)this technology is commerciallyavailable and (2) rotary kiln incinerationprovides a substantial reduction in theconcentration of BDAT organicconstituents present in K024 . For adetailed description of the reductionsexhibited by treatment of these wastes,refer to the BDA T BackgroundDocument for First Third Wastes-K024.

While EPA does not haveperformance data for technologies otherthan rotary kiln incineration, the Agencybelieves that a well designed andoperated fluidized bed incinerator willalso achieve the treatment standards.For the reasons presented in thediscussion of the K016, K018-K020, andK030 treatability group, EPA willconsider fluidized bed incineration in itscapacity determinations.

5. Regulated Constituents andTreatment Standards. As noted below,EPA is regulating phthalic acid for K024.This constituent, although not listed as ahazardous constituent in Part 261Appendix VIII, is being regulated as asurrogate for phthalic anhydride.Phthalic anhydride is a hazardousconstituent; however, it cannot be easilyanalyzed, in that, the analytical method

readily hydrolyzes the compound tophthalic acid. The treatment standardsfor all K024 wastewaters andnonwastewaters are presented below.

BDAT TREATMENT STANDARDS FOR K024(Nonwastewater]


Constituent Total TCLP (mg/composition 1)

(mg/kg)

Phthalic acid .................... 6.0 (')

INot applicable.

BDAT TREATMENT STANDARDS FOR K024[Wastewater]


Constituent Total TCLP (mg/composition T m

(mg/1)

Phthalic acid .................... 0.08 (')

'Not applicable.

e. K103-Process Residues from AnilineExtraction from the Production ofAniline

K104-Combined WastewaterStreams Generated from Nitrobenzene/Aniline Production

1. Industries Affected and WasteDescription. The listed wastes K103 andK104 are generated by production ofaniline and from the combinedproduction of aniline/nitrobenzene,respectively. The Agency estimates thatsix facilities in the central and easternstates are actively involved in anilineproduction which could generate K103.Four of these facilities are actively co-producing aniline and nitrobenzene,which also could result in the generationof K104 waste.

2. Demonstrated Treatment,Technology. The K103 wastewaterprimarily consists of water (94.7 percent)and aniline (4.3 percent). The K104wastewater principally consists of water(98.7 percent), nitrobenzene (0.3percent), and small amounts ofcyanides. For both K103 and K104wastewater the Agency believes thefollowing treatment technology train isdemonstrated; solvent extraction, whichseparates the organic components fromthe aqueous components by exploitingthe relatively high solubilities of theorganic constituents in the particularsolvent; steam stripping, which further

11757




removes organics from the liquid phasethrough volatilization; and activatedcarbon adsorption, which uses carbongranules to remove contaminants. Thesolvent-containing stream from solventextraction potentially can be recycled torecover nitrobenzene and aniline, orincinerated. The steam stripperoverheads are condensed and decantedwith .the organic constituents recycledback to the process. The spent carbonfrom the activated carbon adsorptioncolumn is sent off-site for thermalregeneration. While the incinerationcomponent of this technology is notdemonstrated for K103 and K104,available information shows that it isdemonstrated on wastes similar to thecontaminated solvent stream fromextraction. Because the solvent-contaminated stream potentiallycontains a significant amount of anexplosive compound (picric acid), EPAis concerned that it may not be possibleto safely use incineration. Accordingly,the Agency seeks comment regarding itsdetermination -that the incinerationcomponent of BDAT for K103.and K104is demonstrated.

Other treatment technologies whichmay be applicable to K103 and K104 aresteam stripping followed by activatedcarbon adsorption, and steam strippingfollowed by biological treatment whichinvolves the use of microorganisms todegrade organic compounds.

The technology tested by the Agencywas the system consisting of-solventextraction followed by steam strippingand activated carbon adsorption.'Thethree-step treatment train was chosenover applicable two-step treatment

- processes because the incrementalsolvent extraction step providesadditional reduction in the level oforganics.

3. Data Base. The Agency has 5 datapoints for treated and untreated K103and K104 wastes from one facility. Datacollected during the test show that oneof the 5 data points did not reflectproper operation; therefore, this valuewas not included in the calculation ofthe treatment standards.

4. Identification of BDAT. BDAT forK103 and K104 wastes was determinedto be solvent extraction followed bysteam -stripping and activated carbonadsorption..Additionally, BDATincludes incineration of the solvent-contaminated stream from theextraction component of the treatmenttrain. The Agency is aware of at leastone facility "that has used thewastewater technology train to treatK103 and K104. Therefore, EPA believesthat solvent extraction, followed bysteam stripping and activated'carbonadsorption is demonstrated on K103 and

K104. Additionally, these units arewidely used to treat wastes havingsimilar parameters affecting treatmentselection.

This three-step treatment system isjudged to be available to treat K103 andK104 because (1) the treatment system iscommercially available; and (2) thesystem provides a substantial reductionin the K103 and K104 constituentsdescribed above.

5. Regulated Constituents andTreatment Standards. Below are listedthe regulated constituents for K103 andK104. The following treatment standardsapply to all wastewaters andnonwastewaters. In the case of K103and K104 nonwastewaters, thetreatment standardshave beentransferred as discussed in Section III.A. 8. of this preamble.

BDAT TREATMENT STANDARDS FOR K103AND K104

[Nonwastewater]


Constituent Totalcomposition TCLP(mg/1)

(mg/kg)

Aniline .............................. 5.44 ()Benzene ........................ 5.962,3-Dinitrophenol ............. 5.44Nitrobenzene .................... 5.44Phenol .............................. 5.44Total cyanides (for

K104 only) ................... 1.48

INot applicable.

BDAT TREATMENT STANDARDS FOR K103AND K104

[Wastewater]



(mg/I)

Benzene .......................... 0.147 (1)Aniline ............................. 4.4502,3-Dinitrophenol ............. 0.613Nitrobenzene ................... 0.073Phenol .............................. 1.391Total Cyanides (for

K104 only) ................... 2.683

Not applicable.

f. K071-Brine Purification Muds fromthe Mercury Cell Process in ChlorineProduction, where SeparatelyPrepurified Brine is Not Used

1. Industries Affected and WasteDescription. The listed waste K071 isgenerated in chlorine production by themercury cell process where prepurifiedbrine is not used. The Agency estimatesthat there are 14 facilities that use this

process and -do not use prepurified brineas a raw material. These facilities aredistributed throughout the country, with50 percent being located in theSoutheast.

Chlorine is produced by theelectrolytic decomposition of asaturated sodium chloride brinesolution. The principal raw material isthe rock salt that contains impuritiesthat dissolve in the brine. Treatment ofthe saturated brine to remove theseimpurities results in a treatmentresidual, which is listed as K071.

.2. Demonstrated TreatmentTechnologies. K071 waste consistsprimarily of sodium chloride, calciumsulfate, and calcium carbonate; theprincipal BDATconstituent of this wastebeing mercury. The water content of thewaste is over 60 percent and thefilterable solids content is 20-35 percent(for a detailed analysis of this wastestream, see the BDATBackgroundDocument for First Third Wastes-K071). The demonstrated technologiesthat ,the Agency has identified to treatK071 nonwastewaters are -(1) atreatment train consisting of acidleaching followed by chemical oxidationfollowed by .a washing and dewateringstep for solids, -(2) water washingfollowed by a dewatefing step, and (3)stabilization for nonwastewaters. Forwastewaters, EPA has identifiedchemical precipitation followed byfiltration. Acid leaching followed'bychemical oxidation converts the mercurypresent in the waste -to a soluble form,which is separated from the solidportion of the waste by washing anddewatering. 'The solid portion isregulated under this rule as a treatedK071 waste. The filtrate is then treatedby chemical precipitation and filtrationto remove the mercury solubilized in theleaching and oxidation steps; the filtratefrom this step is regulated under thisrule as a treated.K071 waste. Theprecipitated residue, however, isanother listed waste, K106.

Of the technologies described above,the Agency tested acid leaching andchemical oxidation followed bydewatering and washing, followed bysulfide precipitation and filtration. TheAgency did not test stabilizationbecause -it does not Teduce the totalconcentration of the mercury .as doesacid leaching and chemical oxidation.

3. Data Base. i. Wastewaters. TheAgency has three data points from onefacility on-treated wastewaters. Thisfacility was tested by EPA and thetreatment consisted of sulfideprecipitation followed by filtration. Datacollected during treatment show that alltreated data represent proper ope-ation;

11758




accordingly, all data were used in thedevelopment of the standards.

ii. Nonwastewaters. The Agency has44 data points from 3 facilitiesrepresenting total constituentconcentration of the treated K071nonwastewater, 10 data points from 2facilities representing mercuryconcentrations found in the TCLPleachate of the treated K071nonwastewater, and 268 data pointsfrom 3 facilities representing mercuryconcentrations in the leachate from theExtraction Procedure (EP) test. TheAgency has 44 data points from 3facilities providing total mercuryconcentration values for treated K071nonwastewaters. Of these 44, sevenwere generated by EPA testing acidleaching followed by chemical oxidationand a washing and dewatering step.EPA also generated one data point usinga technology consisting of a one-stepacid leaching process. This technologywas used to treat a waste defined asK071, but significantly lesscontaminated with mercury and alsohaving larger particle sizes. The 36 datapoints submitted by two facilitiesrepresent treatment using a water wash/dewatering process.

Of the 10 data points reflecting TCLPanalysis, eight were generated by EPAusing the treatment technologiesdescribed above. The remaining twodata points representing TCLP analysiswere submitted by one of the facilitiesusing the water wash/dewateringprocess mentioned above.

The 268 EP leachate data points weresubmitted to EPA by three facilitiesusing the water wash/dewateringprocess. Two of the three facilities arethe same companies that supplied thetotal mercury concentration and TCLPvalues for the treated K071.

EPA did not use the 268 EP datapoints in the development of thetreatment standards because datareflecting performance as measured bythe TCLP are available. The TCLP is abetter measure of evaluating BDAT inthis case because it is a more aggressiveleachate test than the EP (ExtractionProcedure).-All remaining data wereconsisdered using the Agency'sstatistical test (ANOVA) for comparingdifferent treatment technologies.

4. Identification of BDAT. BDAT forK071 was identified as acid leaching andchemical oxidation followed bywashing/dewatering fornonwastewaters and sulfideprecipitation followed by filtration forwastewaters. For nonwastewaters, EPAcompared the mean value of the datarepresenting acid leaching and chemical

oxidation and washing/dewatering tothe mean value of the treatment datafrom the water washing process. Thiscomparison was done using the analysisof variance test for both the totalconstituent and TCLP data. In bothinstances, the acid leaching/chemicaloxidation process was shown to providesignificantly better treatment.

The BDAT treatment train fornonwastewaters is demonstrated at twofacilities; additionally the varioustreatment components are well-demonstrated on wastes similar to K071with regard to parameters used to selecttreatment. The Agency believes that thistechnology is available to treat K071wastes because (1) this technology iscommercially available, and (2) thistechnology provides substantialreduction of hazardous constituentconcentrations.

5. Regulated Constituents andTreatment Standards. Below are listedthe regulated constituents andassociated treatment standards for K071wastewater and nonwastewater.Facilities that land dispose ofnonwastewaters have to comply withboth the total concentration and theTCLP value.


[Nonwastewater]



(mg/kg)

Mercury ............................ 4.6 0.0025


[Wastewater]



(mg/I)

Mercury ............................ 0.030

'Not applicable.

g. K048-Dissolved Air Flotation (DAF)Float from the Petroleum RefiningIndustry

K049-Slop Oil Emulsion Solids fromthe Petroleum Refining Industry

K050-Heat Exchanger Bundle

Cleaning Sludge from the PetroleumRefining Industry

K051-API Separator Sludge from thePetroleum Refining Industry

K052-Tank Bottoms (Leaded) fromthe Petroleum Refining Industry

1. Industries Affected and WasteDescriptions. The above five listedhazardous wastes are generated by thepetroleum refining industry. The Agencyestimates that there are 200 refinerieswhich may produce the listed wastesK048 through K052. Many of thesefacilities are located in the SouthCentral and Pacific areas of the UnitedStates.

Petroleum refining consists of manyunit operations, the configuration ofwhich depends on the refinery and thedesired finished products. Many sourcesof waste exist throughout the refiningprocess. Treatment of these wastes in acentralized wastewater treatmentsystem and other unit operations resultin the generation of the K048-K052waste as described below:

Dissolved air flotation (DAF) is usedby petroleum refineries for separatingsuspended and colloidal materials fromprocess. wastewater, includingsuspended solids and insoluble oilywastes. The material skimmed from thesurface of a DAF unit is the listed wasteK048.

Process wastewater from refiningoperations is in many cases treated inan oil/water/solids separator where thewaste separates by gravity into amultiphase mixture. The skimmings fromthe separator are collected in a "slop oilsystem," where the three phases, water,oil, and an emulsified layer, areseparated. The emulsified layer is thelisted waste K049.

-Heat exchanger bundles (tubes) frompetroleum refining operations areperiodically cleaned to remove depositsof scale and sludge. The solids resultingfrom this cleaning operation are listedas K050.

API separators are used in petroleumrefining operations to remove floating oiland suspended solids from thewastewater. Solids that settle out of thewater are the listed waste K051.

Storage tanks which have containedleaded petroleum products areperiodically cleaned to remove deposits.The solids resulting from this cleaningoperation are listed as K052.

2. Demonstrated TreatmentTechnologies. The K048--K052 wastegroup generally contains highpercentages of water, oil, and sand and

11759




other solids; the concentration ranges ofthese constituents vary considerably,depending upon the particular waste.BDAT organic and metal constituentsgenerally comprise less than one percentof the waste stream. For a detailedanalysis of these wastes see the BDA TBackground Document for First ThirdWastes-KO48-K052. The demonstratedtechnologies that the Agency hasidentified for treatment of these wastesare: incineration technologies includingfluidized bed and rotary kilnincineration: solvent extraction followedby recovery or incineration of thecontaminated solvent; thermal drying;and pressure filtration followed by oilrecovery from the filtrate. Thesetechnologies provide varying degrees oftreatment of the organic constituentspresent in the waste.

Fluidized bed incineration or rotarykiln incineration are destructiontechnologies which destroy the organiccomponents in the waste feed. Solventextraction removes organic constituentsfrom a waste by exploiting the relativelyhigh solubilities of the wasteconstituents in a particular solvent.Thermal drying removes water andvolatile organics through the applicationof heat. Pressure filtration mechanicallyseparates solids from liquids allowingthe -oils in the liquid phase to berecovered; further treatment beingrequired for the wastewater stream.

All of the organic treatmenttechnologies generate bothnonwastewater and wastewaterresiduals that require treatment formetals. For metals in the nonwastewaterresiduals, EPA has determinedstabilization to be demonstrated.Stabilization immobilizes the metalconstituents to minimize migration.

For metals in the wastewaterresiduals, EPA has identified chromiumreduction followed by chemicalprecipitation and, finally, stabilizationof ,the precipitated residuals asdemonstrated technologies. Thesetechnologies are commonly employedfor metal-containing wastewaters.Chromium reduction reduces hexavalentchromium to the less toxic trivalentform. Chemical precipitation transfersmetals from the wastewater to a sludgeform suitable for stabilization.

The Agency tested fluidized bedincineration for the K048-K052 wastegroup. Additionally, stabilization of theresidual ash was selected for testingbecause metal stabilization formschemical bonds or a lattice structurethat minimizes the ability of -a metal toleach. Stabilization testing wasperformed at an EPA test facility -sinceno commercial facilities were identifiedperforming stabilization of these wastes.

Rotary kiln incineration wasconsidered for testing; however, theAgency was not aware of any generatorfacilities treating these K048-K052wastes using a rotary kiln incinerator.The other technologies applicable tothese wastes were not selected fortesting for the following reasons.Solvent extraction was not testedbecause it results in a residual that maysubsequently require incineration toreduce the levels of organics in thewaste to be disposed. Even thoughthermal drying operates on the sameprinciple as incineration (the -applicationof energy in the form of heat to volatilize.organic constituents from the waste), itwould not be expected to perform betterthan fluidized bed incineration since itis operated at significantly lowertemperatures (250-550 F versus 1200-1400 *F). Therefore, thermal drying wasnot selected for testing. Pressurefiltration physically separates solids andliquids and would provide for theremoval of the organics in the liquidportion of the waste but would notremove organics present in the solids.Therefore, pressure filtration would notbe expected to perform better thanfluidized bed incineration. Metalsrecovery technologies were not testedbecause the Agency was not aware atthe time of any facilities performingmetals recovery on these wastes.

3. Data Base. For wastes K048 andK051, the Agency collected data fromone facility. These data consist of sixuntreated and treated data pointsrepresenting fluidized bed incineration.Operating data collected during thetesting of the incinerator show that thetechnologies were properly operated;accordingly, all of the above describeddata were used in the development ofthe treatment standards.

For wastes K048, K049, K051, andK052 the Agency also has substantialtreatment data from industry. Most ofthe data addressing BDAT organicconstituents reflect performance asmeasured in the leachate from the TCLP;EPA did not evaluate these databecause the Agency is proposingtreatment standards -based on the totalconstituent concentration. These datarepresent a range of-demonstratedtreatment systems including solventextraction, thermal drying, and pressurefiltration. To the extent that totalcomposition data become available,EPA will evaluate these -systems prior topromulgation.

EPA also received total compositiondata from one facility representing 10data points for residuals from solventextraction. EPA compared these data totreatment data obtained by fluidizedbed incineration and found that

fluidized bed incineration providedsignificantly better treatment for most ofthe ,constituents.

For wastes K049 and K052 the Agencyhas data characterizing the constituentsof these wastes from one plant. Usingthese data, EPA confirmed its judgementthat these wastes were similar to thetreated waste (because of similargeneration processes) through use of theanalyses described earlier in this sectionof the preamble.

For K050 waste, the Agency does nothave data -that represents an analysis ofall BDAT organic and metalconstituents. However, the Agency doeshave a limited analysis of BDATorganics and metals from one facility.Based on these data and informationregarding the generation of this waste,EPA believes it would be similar incomposition to wastes K048 and K051,and therefore, EPA transferredtreatment standards to this waste.

For metals in the incinerator ash, theAgency has 9 treated data pointsrepresenting the amount of metals foundin the TCLP leachate after stabilizationfrom one facility. Operating datacollected during this testing show thatthe technology was properly operated;accordingly, all of the data were used inthe development of the treatmentstandards.

EPA received 10-data points fromindustry representing metalsstabilization. EPA did not use -these datain the development -of treatmentstandards for the BDAT metals becausethe TCLP values -in the untreated andtreated waste -did not show treatment tooccur (i.e., there was no indication ofreductions in the leachateconcentrations).

Fluidized bed incineration alsogenerates a scrubber water stream. EPAcurrently has no data on BDAT listorganics in this residual that specificallyreflects treatment of K048-K052 wastes.The Agency does have six scrubberwater residual data points generatedfrom incineration of wastes that EPAbelieves are similar to K048-K052relative to the level of performance thatcan be achieved. Operating datacollected during this testing show thatthe technology was properly operated;accordingly, all of the data were used inthe development and transferoftreatment standards.

EPA does not have data thatspecifically reflect metal wastewatertreatment of K048-K052. The Agencydoes have performance data, however,on wastes that it believes aresufficiently similar to K048-K052 suchthat the level of performance can betransferred. These data consist of 11

11760




untreated and treated analyses for eachof the following metals: chromium, lead,and zinc. The data were collected byEPA from one facility using chromiumreduction followed by lime and sulfideprecipitation and, finally, vacuumfiltration. Operational data collectedduring this treatment testing indicatethat the technology was properlyoperated; accordingly, all of the datawere used in the development andtransfer of treatment standards.

The Agency has recently collected sixscrubber water residual samplesgenerated from incineration of K048waste and is currently analyzing thesesamples to determine the level ofperformance achieved. Depending onthe results of these analyses, the Agencymay adjust the wastewater standardsfor BDAT organics and metals beforethe promulgation of this rule.

4. Identification of BDA T. EPA hasdetermined that for BDAT organics inthe K048-K052 wastes, fluidized bedincineration achieves a level ofperformance that represents treatmentby BDAT. While BDAT is not identifiedas rotary kiln incineration, EPA believesthat a Well-designed and well-operatedrotary kiln incinerator will achieve theapplicable treatment standards forK048-K052. Accordingly, EPA will userotary kiln incineration in its estimatesof available treatment capacity.

For metals in the incinerator ash, EPAhas determined that stabilization using alime/flyash binder achieves a level ofperformance that represents BDAT.Other binders tested were cement andkiln dust; EPA determined that use ofboth of these binders resulted in lesseffective treatment than the use of thelime/flyash binder. (EPA's analysis ofthese data can be found in BDATbackground document for K048-K052.)

For EDAT list metals in thewastewater, EPA has identifiedchromium reduction followed bychemical precipitation and vacuumfiltration as BDAT for metals.

Incineration followed by metalstabilization for the nonwastewaterKO48-K052 and chromium reductionfollowed by chemical precipitation andfiltration for the wastewater K048-K052are judged to be available to treat K048-K052 because (1) these technologies arecommercially available, and (2) thesetechnologies provide substantialreduction of both organic and metalhazardous constituents. For a detaileddescription of the reductions exhibitedby treatment of these wastes, refer tothe BDA T Background Document forFirst Third Wastes-Ko48-K052.

5. Regulated Constituents andTreatment Standards. Below are listedthe regulated constituents for K048-K052

and the associated treatment standards.For organic constituents, the standardsare expressed as total constituentconcentration, and for the metals, thestandards reflect concentrations in theleachate developed by using the TCLP.


[Nonwastewater]


Constituent TotalComposition TCLP (mg/I)

(mg/kg)

Bis(2-ethylhexyl)phthalate.. 4.18 (')

Toluene .......................... 3.93 (')Chrysene ........................ 0.84 (')Xylene ............................ 8.54 (')Di-n-butyl phthalate ...... 4.18 ()Naphthalene .................. 0.84 (')Phenanthrene ................ 0.84 ()Phenol ............................ 0.84 (')Cyanide .......................... 1.48 (i)Total chromium ............. (') 1.68Arsenic ........................... (') 0.006Copper ........................... (1) 0.013Nickel ............................. (1) 0.048Selenium ........................ (') 0.025Vanadium ....................... () 0.18Zinc ................................ (1) 0.141

'Not applicable.


(Wastewater]

Maximum for any single grabsample

Constituent Total

Composition TCLP (mg/I)(mg/kg)

Phenol ........................... 0.007 (')Fluorene ........................ 0.007 ..... ................Toluene ......................... 0.007 .........................Xylene ........................... 0.007 .........................Naphthalene ................ 0.007 .........................Phenanthrene ............... 0.007 .........................Total chrom ium ............ 0.20 .........................Lead ...... .......... . 0.037 .................Zinc ............................... 0.40 .........................

I Not applicable.


[Nonwastewater]


Constituent Total

Composition. TCLP (mg/I)(mg/kg)

Benzene ........................Chrysene .......................Xylene ...........................Toluene .........................Naphthalene .................Phenanthrene ...............Phenol ...........................Pyrene ...........................Cyanide .........................Total chrom ium ............Arsenic ..........................

3.930.848.543.930.840.840.841.061.48(')(')

BDAT TREATMENT STANDARDS FOR

K049-Continued

[Nonwastewater]



(mg/kg)

Copper ........................... (') 0.013Nickel ............................. (') 0.048Selenium ........................ (') 0.025Vanadium ....................... (I) 0.18Zinc ................................ "() 0.141

Not applicable.


[Wastewater]



(mg/kg)

Anthracene .................. 0.007 (')Xylene .......................... 0.007 .........................2,4-Dimethylphenol ..... 0.007. ...Benzene ....................... 0.023 .........................Toluene ....................... 0.007 .........................Naphthalene ................ 0.007 .........................Phenanthrene .............. 0.007 .........................Phenol .......................... 0.007 .........................Total chromium . . 0.20 .........................Lead .............................. 0.037 .........................Zinc .............................. 0.40 .........................

Not applicable.


[Nonwastewater]



(mg/kg)

Benzo(a)pyrene .............. 0.84 (')Phenol ............................ 0.84 (1)Cyanide .......................... 1.48 (1)Total chromium .............. (1) 1.68Arsenic ............................ (1) 0.006Copper ............................ (1) 0.013N ickel .............................. (1) 0.048Selenium ......................... (1) 0.025Vanadium ........................ (1) 0.18Zinc .................................. (1) 0.141

(') Not applicable.


[Wastewaterl



(mg/kg) -

Phenol .............................Total chrom ium ..............Lead: ................................

0.007 (1)0.20 ......................0.037 .......................

11761



Federal Register / Vol. 53, No., 68 / Friday, April 8, 1988 / Proposed Rules

BDAT TREATMENT STANDARDS FORK050-Continued

[Wastewater]


Constituent Total


Z inc .................................. 0.40

(')Not applicable.

RDAT TREATMENT STANDARDS FOR K050

(Nonwastewater]


Constituent Total


Toluene ............... 3.93 (1)CHrysene....................... 0.84 (1)Xylene ............................. 8.54 (I)Di-n-butyl phthalate 4.18 (1)Naphthalene ................... 0.84 (')Phenanthrene ................ 0.84 (1)Phenol ............................ 0.84 (1)Pyrene ............................. 1.06 (')Cyanide ................ 1.48 (1)Total chromium .............. (I) 1.68Arsenic ............................ (1) 0.006Copper ............................ (1) 0.013Nickel .............................. (1) 0.048Selenium ......................... (1) 0.025Vanadium .............. () 0.18Zinc .................................. () 0.141

(1) Not applicable.


(Wastewater]


grab sample

Constituent Total


Fluorene .......................... 0.007 (I)Acenaphthene ................ 0.007 (')Toluene ........................... 0.007 ()Xylene ............................. 0.007 (')Naphthalene ................... 0.007 ()Phenanthrene ................. 0.007 (')Phenol .... ............ 0.007 (')Total chromium .............. 0.20 ()Lead ...................... 0.037 (')Zinc .................................. 0.40

(')Not applicable.


(Nonwastewater]


Constituent Total


BDAT TREATMENT STANDARDS FOR

K052-Continued

[Nonwastewater]


grab sampleConstituent Total


p-Cresol ........................... 0.84 (1)Naphthalene ................... 0.84 (1)Phenanthrene ................. 0.84 (1)Phenol ............................. 0.84 (1)Cyanide ........................... 1.48 (')Total chromium .............. (1) 1.68Arsenic ...................... () 0.006Copper .......... . (') 0.013N ickel .............................. (') 0.048Selenium ..................... (1) 0.025Vanadium ........................ (1) 0.18Zinc " . .............. (') 0.141

'Not applicable.


[Wastewater]

Maximum for any single grab

sample


(mg/kg)

Phenanthrene ............... 0.007 ()2,4-Dimethylphenol 0.007 ()Benzene ....................... 0.023 ()Xylene ........................... 0007 (')o-Cresol ........................ 0.007 ()p-Cresol.: ...................... 0 .007 (')Naphthalene ................. 0.007 (')Phenol ................ 0.007 (')Total chromium ............ 0.20 (')Lead .............................. 0.037 (')Zinc ............................... 0.40 (')

I Not applicable.

h. K069-Emission Control Dust/Sludgefrom Secondary Lead Smelting

1. Industries Affected and WasteDescription. The listed waste K069 isgenerated in the secondary leadsmelting process. The Agency estimatesthat 69 facilities are secondary leadsmelters. Most of these facilities arelocated in the South Central andMidwest parts of the United States.Secondary lead smelting generatesparticulate emissions which containhazardous constituents present in feedmaterials. Metals are entrained infurnace fumes and are collected by airpollution control devices. The emissioncontrol dust generated is the listedwaste K069.

2. Demonstrated TreatmentTechnologies. K069 waste principallyconsists of lead, cadmium, andchromium. The Agency is aware of threetechnologies applicable to the treatmentof K069 waste: Total recycling, hightemperature metals recovery, andstabilization. Because the waste

contains recoverable quantities of lead,it can be totally recycled as a feedstockfor resmelting. High temperature metalsrecovery can be applied to recovermetal constituents from the waste.Stabilization treatment reduces theleachability of the metals in the wasteslag that results from resmelting.

EPA verified the use of recyclingthrough information requests underRCRA section 3007. EPA did not testother applicable technologies becausethey generated residuals that stillcontain some level of contamination.

3. Data Base. The Agency has datafrom 7 facilities stating that totalrecycling of K069 is practiced and thatK069 is not land disposed. Of nineRCRA section 3007 letters sent togenerators at 13 plants, seven respondedconfirming the fact that total recycling isused. Of the two others, one exports thewaste to be recycled and the othercompany did not respond. A letter wasalso received from the Secondary LeadSmelters Association which stated thattotal recycling of the baghouse dust ispracticed throughout the industry andthat land disposal of K069 does notoccur.

4. Identification of BDAT. BDAT forK069 is total recycling. Total recycling isdemonstrated at more than 10 facilitiesand confirmed by the Secondary LeadSmelters Association as the wastemanagement technique practicedthroughout the industry.

Total recycling is judged to beavailable to treat K069 waste because(1) the Agency does not haveinformation showing that recyclingposes a greater total risk to humanhealth and the environment than landdisposal; (2) it is commerciallyavailable; and (3) this treatmenttechnology provided a substantialreduction of hazardous constituentsbecause it eliminates the need for landdisposal of K069.

Designating a form of recyclingtechnology as the basis for BDAT raisesissues analogous to those involving K061waste. EPA will summarize itsconclusions here, subject to publiccomment:

e EPA may prohibit land disposal ofK069 waste, whether or not it would bea solid waste when recycled;

* Even under the American MiningCongress opinion, the K069 beingreclaimed could be viewed as a solidwaste, because it derives from treatmentof discarded materials (scrap lead,discarded batteries and the like) (see,e.g., 824 F. 2d at 1188);

* Under the Agency's May 6, 1987proposal, K069 waste, however, wouldbe considered to be indigenous to the

11762

Toluene ...........................Xylene .............................o-Cresol .........................

3.938.540.84




secondary lead smelting process andtherefore would cease being a waste atthe moment it is reintroduced to thesmelting furnace; and therefore,

* Any slag resulting from hightemperature metals recovery of thiswaste (in a secondary lead smelter)would not automatically be a hazardouswaste (i.e., the "derived from" rulewould not apply), and would behazardous only if it exhibits acharacteristic of hazardous waste(assuming the Agency does not alter itsproposal with regard to indigenouswastes). The Agency consequently isnot proposing a treatment standard forthe slag at this time, nor would aprohibition necessarily apply (assumingthe slag is hazardous) until the "FinalThird" prohibition date of May 8, 1990.

The proposed treatment standard forK069 is "No Land Disposal" (seediscussion of the significance of thistreatment standard in Section A. 9.above). Rather than simply prohibitingthe waste from land disposal, settingthis "treatment standard" achieves theAgency's intent to prohibit the landdisposal of these wastes, while at thesame time allows for the possibility of avariance from the treatment standard.Should a waste be generated that isunable to be totally recycled (e.g., suchas a waste generated at a CERCLA site)such a waste may be eligible for avariance from the treatment standard. Awaste is not eligible for a variance fromthe treatment standard if no treatmentstandard has been established. Aninterested party would have to petitionthe Agency for a treatment standard, amore cumbersome and time-consumingprocess.

i. K015-Still Bottoms From theDistillation of Benzyl Chloride

1. Industries Affected and WasteDescription. The Agency estimates thatthree facilities produce the listed wasteK015. These facilities are located in NewJersey and Tennessee.

Benzyl chloride is produced by thechlorination of toluene in a reactor (orseries of reactors). Unreacted toluene isrecycled back to the reactor, while thereaction products containing crudebenzyl chloride are distilled. The stillbottoms are the listed waste K015.

2. Demonstrated TreatmentTechnologies. K015 waste generallycontains greater than 88 percent benzalchloride, less than 12 percentbenzotrichloride and other chlorinatedbenzenes, less than 5 percent benzylchloride, less than 1 percent toluene,less than 1 percent other BDATconstituents, and less than 1 percentwater. The demonstrated technologiesthat the Agency has identified for

treatment of K015 waste are liquidinjection incineration, fuel substitution,and recovery.

The Agency tested liquid injectionincineration of K015. EPA did not locateany'facilities using fuel substitution, anddata on recovery were not available.

3. Data Base. Wastewaters GeneratedFrom Incineration. For K015 waste, theAgency has data from one facility. EPAhas three scrubber water data pointswhich represent destruction of BDATorganic compounds by liquid injectionincineration. The data reflect totalconstituent analyses; all data were usedin the development of treatmentstandards because EPA collected datashowing that the incinerator wasproperly operated during the treatmenttests.

4. Identification of BDA T. BDAT forK015 waste is identified as liquidinjection incineration. This technology isthe only technology for which theAgency has treatment data, as notedabove. Although only liquid injectionincineration was tested, EPA believesthat well designed and operated fuelsubstitution systems can achieve thetreatment standards. Accordingly, EPAis considering these technologies in itscapacity determinations.

Liquid injection incineration isdemonstrated at approximately 250facilities. The Agency is not aware ofany generator or TSD facility currentlyusing liquid injection incineration fortreatment of K015; however, EPAbelieves liquid injection incineration isdemonstrated for K015 in that thetechnology is being used to treat wastessimilar to K015 with regard toparameters affecting treatment selectionincluding: BTU content, filterable solids,total organic carbon, viscosity, andwater content. EPA has confirmed itsjudgment by demonstrating achievableperformance in a test burn. The Agencyalso believes this technology isavailable because (1) incinerationtechnologies are commercially availableor can be purchased from a proprietor,and (2) incineration provides substantialreduction of the concentration of organichazardous constituents. For a detaileddescription of the reductions exhibitedby treatment of these wastes, refer tothe BDA T Background Document forFirst Third Wastes-KO15.

5. Regulated Constituents andTreatment Standards. EPA is proposing"No Land Disposal" as the treatmentstandard for K015 nonwastewatersbecause the Agency is unaware of anynonwastewater residuals from thetreatment of K015. (EPA solicitscomment to the contrary.) Should such awaste be generated in the future, such

waste may be eligible for a variancefrom this tratment standard.

Below are listed the regulatedconstituents for K015 and the treatmentstandards for wastewater.

BDAT TREATMENT STANDARDS FOR K01 5[Wastewater]



(mg/I)

Anthracene .................... 1.02 (')Benzal chloride ............. 0.28 .........................Benzo (b and/or k)

fluoranthene .............. 0.29 .........................Phenanthrene ................ 0.27 .........................Toluene .......................... 1.00 .........................Total chromium ............. 0.30 .........................N ickel ............................. 0.44 .........................

I Not applicable.

j. K037-Wastewater Treatment Sludgesfrom the Production of Disulfoton

1. Industry Affected and WasteDescription. The listed waste K037 isdefined as wastewater treatment sludgefrom the production of disulfoton. TheAgency estimates that one facilityproduces disulfoton and produces K037waste.

2. Demonstrated TreatmentTechnologies. The K037 waste generallycontains less than 5 percent water, 20percent disulfoton, 75 percent solids and0.2 percent toluene. The waste containshigh levels of filterable solids. TheAgency has identified and tested rotarykiln incineration for treatment of thiswaste. Rotary kiln incineration is adestruction technology applicable toorganic bearing wastes with solidsconcentrations that prevent the use ofliquid injection incineration.

3. Data Base. i. Non wastewaters. ForK037, the Agency has six untreated andtreated data points from one plant.These data sets include both totalconstituent concentration and TCLPleachate values. All data sets were usedin development of treatment standardsbecause data show that the unit wasproperly operated during the time thewaste was treated.

ii. Wastewaters Generated fromIncineration. The Agency has sixscrubber water data points whichrepresent destruction of BDATcompounds in the afterburner of therotary kiln incinerator. The data reflecttotal constituent analyses; all data wereused in the development of treatmentstandards because data show that theafterburner was properly operatedduring the treatment test.

11763



Federal Register / Vol. 53, No. 68. / Friday, April 8, 198 / Proposed Rules

4. Identification of BDA T. BDAT forwaste K037 was determined to be rotarykiln incineration. This technology wasthe only technology for which theAgency has treatment data, as noted inthe previous subsection (Data Base).

EPA is not aware of any generator orTSDFs currently using rotary kilnincineration for treatment of K037.However, EPA believes rotary kilnincineration is demonstrated to treatK037 in that it is being used to treatwastes similar to K037 with regard toparameters affecting treatmentselection, including low water contentand high solids concentration. EPA hasconfirmed this judgement bydemonstrating the actual performanceachievability when K037 wasincinerated in EPA's in-house rotary kilnincinerator.

Rotary kiln incineration is judged tobe available to treat K037 because (1]this technology is commerciallyavailable or can be purchased from aproprietor, and (2) incineration providessubstantial reduction of theconcentration .of organic hazardousconstituents. For a detailed discussionof the reductions exhibited by treatmentof this waste, refer to the BDA TBackground Document for First ThirdWastes-K037.

5. Regulated Constituents andTreatment Standards. The regulatedconstituents for K037 and the treatmentstandards for wastewaters andnonwastewaters are listed below.

BDAT TREATMENT STANDARDS FOR K037(NONWASTEWATER)


Constituent Total

composition TCLP (mg/t)(mg/kg)

Disulfoton ........................ i 0.1 (I)

Toluene ........................ 28.0

1 Not applicable.

BDAT TREATMENT STANDARDS FOR K037(WASTEWATER)


Constituent Totalcomposition TCLP (mg/i)

(mg/i)

Disulfoton ........ 0.003 (')Toluene ................ 0.028

1 Not applicable.

k. K004-Wastewater Treatment Sludgefrom the Production of Zinc YellowPigments

K008--Oven Residue from theProduction of Chrome Oxide GreenPigments

K036-Still Bottoms from TolueneReclamation Distillation in theProduction of Disulfoton

K073-Chlorinated HydrocarbonWaste from the Purification Step ofthe Diaphragm Cell Process UsingGraphite Anodes in ChlorineProduction

K100-Waste Leaching Solution fromAcid Leaching of Emission ControlDust/Sludge from Secondary LeadSmelting

Based on available information, theAgency believes that these wastes areno longer generated, and therefore, notcurrently land disposed. (EPA solicitscomment to the contrary.) The Agency isprohibiting land disposal of thesewastes. This approach ensures thatthese wastes will not be land disposedin the future.

The proposed treatment standard forthese wastes is "No Land Disposal",allowing for the possibility that thesewastes may be generated at a CERCLAsite and may require a variance from thetreatment standard. For a more detaileddiscussion on the significance of thistreatment standard, see Section III. A. 9.

It should also be noted that the May28, 1986 schedule for restricting thelisted hazardous wastes from landdisposal (51 FR 19300) lists K100 in thefinal third. Therefore, K100 was notoriginally scheduled for regulation under40 CFR Part 268 until May 8, 1990.However, because EPA has determinedthat this waste is no longer generated,the Agency has decided to acceleratethe schedule for this waste and proposesto set the "No Land Disposal" treatmentstandard for this waste by August 8,1988.

B. Testing and Recordkeeping

1. Waste Analysis

The treatment standards proposed intoday's notice are expressed as either(1) concentration levels in an extractdeveloped by use of the ToxicityCharacteristic Leaching Procedure(TCLP); (2) a total composition wasteanalysis; or (3) both. How thesetreatment standards are measureddepends upon the technology (orcombination of technologies) identifiedas BDAT for the specific waste.

Basically, for destruction (fororganics) or removal (for metals)technologies, the Agency believes that atotal composition analysis is designed toprovide an accurate measure of theperformance of the technology identifiedas BDAT. Congress in fact expected thattreatment would destroy organic

constituents in hazardous wastes [Vol.130, Cong. Rec. S 9179 (daily ed. July 25,1984)], and the logical way to measuredestruction is to analyze totalconcentration of Waste constituents.Conversely, where stabilization orfixation technologies (i.e., technologieswhich decrease waste constituentmobility) are identified as BDAT, theTCLP is a better measure ofperformance because it is designed tomeasure the mobility of hazardousconstituents from a waste matrix.

In cases where the combination ofboth destruction or removaltechnologies, and stabilization orfixation technologies is identified asBDAT, both analyses must be employedto monitor compliance with thetreatment standards. In such cases,neither test alone is designed to ensurethat the treatment standard has beenmet. For example, where a wastecontains organic constituents amenableto destruction and metals amenable tofixation, the total composition analysismay demonstrate that the organics havebeen treated to the applicableconcentration level; however, reductionin the mobility of metals must also beensured. Likewise, use of the TCLP maydemonstrate that the metals have beentreated to the applicable concentrationlevels in the extract, yet does notindicate whether the organics have beendestroyed in compliance with theapplicable treatment standard. Bothtests must be used to ensure that the"dual" treatment standard has been met.

The Agency considered the use ofonly the TCLP where BDAT includes astabilization or fixation technology. Itappears more logical to the Agency thatbecause the TCLP is not designed toevaluate destruction, total wasteanalysis be used if part of the BDATtreatment train includes destruction (orremoval) technologies. However, EPA issoliciting comment on this approach.

2. Notification Requirements

Today's proposal extends the existingnotification requirements in § 268.7-which create tracking, certification, andrecordkeeping requirements formanagers of restricted wastes-to applyto First Third wastes, whether or nottreatment standards have beenestablished. For First Third wasteswhere EPA has established a treatmentstandard or effective date, therequirements are the same as for otherrestricted wastes and, therefore, noadditional language is needed. Becausethe statutory waste managementrequirements applicable to "softhammer"wastes are somewhat differentthan existing requirements for other

11764




restricted wastes (namely, a RCRAsection 3004(g)(6) certification to EPA isnot required for these wastes when landdisposed in units other than landfills orsurface impoundments), the Agency isproposing new requirements in § 268.7to account for these differences.

The basic difference between thenotification applicable to the "softhammer" wastes and the notificationapplicable to other restricted wastes isthat rather than requiring notice of theapplicable treatment standard orapplicable prohibition (see existing§ 268.7(a)(1) [the generator notifies thetreatment facility of the applicableprohibitions and treatment standards forrestricted wastes sent to the treatmentfacility]), the notice for "soft hammer"wastes would require the generator tonotify the receiving facility of the "softhammer" prohibitions codified in§ 268.33 (i.e., that such wastes areprohibited from land disposal in landfilland surface impoundment units unlessaccompanied by a valid certification(and demonstration, if applicable) inaccordance with the requirements of§ 268.8. relating to the practicalunavailability of treatmenttechnologies). The EPA HazardousWaste Number, the manifest numberassociated with the waste shipment, andany available waste analysis data mustalso be included in this "soft hammer"notice.

The Agency believes such notificationis necessary because of the importanceof having a consistent tracking andidentification mechanism for allrestricted wastes. The notification thusinforms treatment facilities (and otherhandlers) of the obligation to treat "softhammer" wastes destined for disposalin landfill or surface impoundment units(to the extent treatment is practicallyavailable). Notification also informsmanagers of these wastes that thestorage prohibition in § 268.50 isapplicable to the waste.

3. Recordkeeping Requirements forStorage Facilities

The Agency is also proposing today tocorrect an unintended oversight in therecordkeeping regulations of § 268.7 toindicate that the section applies tofacilities that store prohibited wastes.As currently drafted, the provisionapplies to generators, treatmentfacilities, and land diiposal facilities butomits another possible actor in thechain, the facility that simply storesprohibited wastes without treating them.There is no reason for such facilities notto be covered by the provision, which isintended to track prohibited wastesfrom cradle to grave, and to ensure thatall facilities receiving such wastes be on

notice that the waste is prohibited andwhat the applicable treatment standard(or applicable prohibition) for the wasteis. These purposes are thwarted ifstorage facilities are not covered by theprovision. Consequently, the Agency isproposing today to remedy thisdeficiency by including storage facilitiesunder the recordkeeping requirements of§ 268.7. This requirement would apply toall prohibited wastes, not only to thoseaffected by today's proposal.

In addition to the "generator-to-storage" scenario discussed above, thisnotice also proposes to apply thenotification requirement to a treatment,storage or disposal facility that sends arestricted waste (or treatment residue)off-site to another treatment or storagefacility. The Agency believes thischange will adequately track allrestricted waste from cradle to grave.

Another change to the currentregulatory language to facilitate the"cradle-to-grave" tracking system is anamendment of section 268.7(a)(3). Thisprovision of the regulation concerns thecase where a generator determines thathis restricted waste is eligible for landdisposal because it is subject to anextension of the effective date or a "nomigration" exemption (i.e., the wastemay be land disposed, but not becausethe waste meets the applicabletreatment standards). In this case, thegenerator would be required to notifythe disposal facility of the status of hiswaste. Here again, the Agencyoverlooked the possibility that the wastemay not be sent directly to the landdisposal facility, and may in fact begoing to treatment or storage. Therefore,to avoid any confusion, EPA proposes toamend § 268.7(a)(3) to require that thenotice be sent with each shipment ofwaste to the receiving facility.

C. "Soft Hammer" Provisions

1. ApplicabilityRCRA section 3004(g)(6) (42 U.S.C.

6924(g)(6)) provides that if EPA fails toset treatment standards for anyhazardous waste included in theschedule promulgated on May 28, 1986(51 FR 19300) by the statutory deadline,such waste may be land disposed in alandfill or surface impoundment only if-

(i) such facility is in compliance with therequirements of subsection (o) which areapplicable to new facilities (relating tominimum technological requirements); and

(ii) prior to such disposal, the generator hascertified to the Administrator that suchgenerator has investigated the availability oftreatment capacity and has determined thatthe use of such landfill or surfaceimpoundment is the only practical alternativeto treatment currently available to thegenerator. (RCRA section 3004(g)(6)(A))

This so-called "soft hammer" appliesuntil May 8, 1940, at which time suchwastes will automatically be prohibitedfrom all methods of land disposal thatare not otherwise determined to beprotective through the "no migration"petition process (§ 268.6).

As a preliminary matter, it isimportant to note that these "softhammer" provisions, including thedemonstrations, certifications,notifications, and treatmentrequirements are only applicable to FirstThird wastes for which treatmentstandards have not been established,and are only applicable until May 8,1990. During the.period of the "softhammer" provision, those wastes whichare currently subject to the Californialist restrictions would remain so, andthus might be prohibited from landdisposal even though they are also a"soft hammer" waste. This result isconsistent with statements in previouspreambles. The Agency indicated thatwaste-specific prohibitions, treatmentstandards, and effective dates wouldsupersede California list prohibitions,treatment standards, and effective dates(52 FR 25773, 25776, and § 268.32(h), July8, 1987). This is because where theAgency has made a waste-specificdetermination, it is likely to be a moreaccurate and a more consideredregulatory judgment than for thegenerically designated California listwastes. The Agency has made no suchconsidered judgment with respect to"soft hammer" wastes, however. In theabsence of any such specific regulatorydetermination, it makes sense that thesewastes be treated at least to the extentnecessary to comply with the Californialist prohibitions and treatmentstandards (where applicable). Californialist capacity determinations likewisewould supersede the "soft hammer"provisions, since these capacitydeterminations are tied directly to thespecific treatment standards, andrepresent a specific Agencydetermination.

2. Interpretation of Specific Terms

Because EPA does not expect toestablish treatment standards for all ofthe First Third wastes, the Agency isproposing the regulatory framework formanagement of these "soft hammer"wastes until May 8, 1990, or untiltreatment standards are promulgated,whichever is sooner. To facilitate theimplementation of these provisions, theAgency is discussing its interpretation ofthe terms "treatment" and "facility" asstated in section 3004(g)(6), andrequesting comment on theseinterpretations.

I11765



Federal Register / Vol. 53, No. 68 / Friday, April 8; 1988 / ProDosed Rules

a. "Treatment" For the purposes of the"soft hammer" provision, the Agency isinterpreting "treatment" to meanprocessing which reduces a waste'stoxicity or which reduces the likelihoodof migration of hazardous constituentsfrom the waste. By not quantifying theterm, the Agency thus would requirethat "soft hammer" wastes be treated byany current treatment methods whichare practically available and whichachieve meaningful (i.e.,environmentally beneficial) reductionsOf waste constituent toxicity and/ormobility. Treatment would continue solong as further meaningful reductions intoxicity and/or mobility can beachieved (again assuming that treatmentalternatives are practically available).Where the "best" treatment is notcurrently available, the "next best"treatment will be required. Thus, even ifa waste has been treated, therequirement to treat to reduce thetoxicity of the waste or the likelihood ofmigration of hazardous constituentsfrom the waste would still apply. Furthertreatment that achieves meaningfulreductions, is practically available,would have to be employed.

Congress clearly wished to requiretreatment prior to disposal of section3004(g) wastes in impoundments andlandfills-two forms of surface disposalsingled out for special mandatedminimum technological requirements. Bytaking a relatively stringent view ofwhat constitutes treatment, the Agencyis furthering this congressional purpose.In addition, the Agency believes thatCongress intended that, during theperiod of the "soft hammer", onlywastes treated to the most protectivelevels achievable by practicallyavailable technologies may go to landdisposal in landfills or surfaceimpoundments. Therefore, the Agencybelieves that defining "treatment" forthe purposes of the "soft hammer"provision as a reduction of toxicity orlikelihood of migration of hazardousconstituents is consistent with the intentof Congress.

The Agency realizes that tisapproach could be interpreted to implythat residuals from treatment wouldhave to be continually treated by thesame, process, or past the point wheremeaningful, reductions can occur. This isnot the Agency's intention (i.e., theAgency does not intend to require solelyfor the sake of treatment). EPA solicitssuggestions as to the best means ofexpressing the intention that treatmentachieve some meaningful degree ofenvironmental benefit to avoid requiringsequential treatment that achieves onlyminimal reductions. EPA could limit

such treatment by requiring that a singleprocess be used only once. Anotherapproach to limiting treatment is to set aperformance limit by which treatmentwould be defined. For example,treatment could be defined by limitingthe scope of available technologies tothose technologies that yield a reductionof 20% in concentration or mobility oftoxic constituents (or anotherdesignated percentage of reduction).Those technologies that do not yield atleast a 20% reduction in toxicity of thewaste or likelihood of migration ofhazardous constituents from the wastewould not be considered to bepractically available "treatment" for thispurpose. (Were the Agency to adopt thisapproach, such a standard would notimply that EPA would be setting asurrogate treatment standard of 20%reduction. The level of treatment wouldnot be a 20% reduction, but rather theperformance level achievable by thetreatment technology used.)

The Agency's chief objective ininterpreting the statutory reference totreatment is to prohibit certifications for"soft hammer" wastes that have onlybeen treated minimally whenmeaningful reductions can be achievedby a practically available treatmenttechnology. The Agency thereforesolicits comment on an approach thatwould address this problem directly byrequiring that "soft hammer" wastes betreated so as to achieve meaningfulreductions of wastes' toxicity ormobility (the statutory section3004(m)(1) standard) and by stating thatsham or de minimus treatment cannotgive rise to a valid certification(assuming legitimate treatment ispractically available at the time ofcertification). An example of shamtreatment would be adding dirt to awaste to reduce its mobility.

This approach would differ from theone proposed by not necessarilyrequiring sequential treatment to reducefurther increments of wastes' toxicity ormobility. It could have a practicaladvantage of removing one complicatedfeature from the rule, since the regulatedcommunity and EPA officials would nolonger need to struggle to determine howmuch treatment is needed. It would alsofocus regulatory efforts on the problemof sham treatment, rather than diffusingsuch efforts over issues of furtherincremental reductions.

The Agency solicits comment on thesealternatives, and, in general, on itsinterpretation of "treatment", as itapplies to the "soft hammer" provisionin § 268.8.

b. "Facility". Section 3004(g)(6) statesthat "soft hammer" wastes may be

disposed in surface impoundments andlandfills "only if such facility is incompliance with the requirements ofsection (o) which are applicable to newfacilities." EPA is interpreting "facility"in section 3004(g)(6) to refer to theindividual landfill or surfaceimpoundment "unit". EPA is persuadedthat this is the best reading of theprovision based on the language of thestatute, and on evident congressionalpolicy reflected in the statutorylanguage and in the legislative hfstory.

First, the reference in the provision tofacilities appears to be linked directly tolandfills and surface impoundments.Thus, the statutory reference to "suchfacility" (emphasis added) refers to thelandfill or surface impoundment unitsmentioned immediately previously.

Second, and even more importantly,the statute requires that "such facility"be in compliance with the minimumtechnological requirements "which areapplicable to new facilities." Newlandfills and surface impoundments, ornew landfill and surface impoundmentunits at existing facilities, however,must have double liners, leachatecollection systems, and groundwatermonitoring. Congress thus appears to besaying that if landfills and surfaceimpoundmepts are to receive "softhammer" wastes, then they must meetthe minimum technological requirementsthat would apply if they were new.

This reading seems to the Agency tobe most in accord with the intent of theprovision. If the Agency fails toestablish a treatment standard for asection 3004(g) waste, and these wastesare destined for disposal in units aboutwhich Congress had particular concerns,then, at the least, these units shouldmeet the minimum technologicalrequirements. The alternative is tosanction disposal of untreated wastes(assuming there is no practicallyavailable treatment technology) inlandfills and impoundments not meetingminimum technological requirements, aresult EPA does not believe Congressintended. In this regard, the legislativehistory indicates that Congress intendedthat landfills and impoundmentsreceiving prohibited wastes for whichthe Agency failed to establish treatmentstandards meet the minimumtechnological requirements:

Only after a generator certifies to EPA thatsuch generator has investigated theavailability of treatment capacity anddetermined that the use of a landfill orsurface impoundment is the only practicalalternative to treatment currently availablemay such waste be placed in a landfill orsurface impoundment. A further limitation isthe condition that such landfill or surface

11766




impoundment must satisfy the minimumtechnological requirements for new facilities,[S. Rep. No. 284, 98th Cong., 1st Sess. 21(1983), [emphasis added) (explaininglanguage later adopted in section 3004(g)(6))]

It also bears mention that thelanguage in section 3004(o) does notrefer to new facilities, but rather, itaddresses new, replacement, or lateralexpansion landfill or surfaceimpoundment units at an existingfacility. This language likewise suggeststhat Congress meant section 3004(g)(6)to apply to units rather than facilities;otherwise, section 3004(g)(6) would haveno meaning at all.

An alternative interpretation of thestatutory language is that the referenceto "* * * requirements * * * applicableto new facilities * *" would apply tothe entire facility. This would give theterm "facility" its literal meaning, butdoes not appear to reflect congressionalintent. Under this interpretation, eachunit as a facility would have to be incompliance with the minimumtechnological requirements of section3004(o) since those are the reguirementsthat would be applicable to a new, or"green-field", facility. EPA does notconsider this to be a viable optionbecause there are very few, if any, suchfacilities. Thus, this interpretation of the"soft hammer" provision could result ina "hard hammer", which the Agencydoes not believe was the intent ofCongress in providing for section3004(g)(6). If Congress had intended toprohibit land disposal of these wastes inlandfills or impoundments, it could havesaid so directly as it did in section3004(g)(6)(C).

A third option would be to interpretsection 3004(g)(6) the same way as theAgency previously interpreted section3004(b)(4) (see existing § 268.5(h)) (i.e.,the faci'ty-as a whole must be incompliance with the requirements ofsection 3004(o), meaning that all new,replacement, or lateral expansionlandfill or surface impoundment unitsmust meet the minimum technologicalrequirements, but that the waste couldgo into any unit at such a facility, e.g.,existing units not meeting the minimumtechnological requirements). While thiswould be consistent with the Agency'scurrent interpretation of "facility" insection 3004(h)(4)-which concerns thedisposal of wastes subject to anextension of the effective date-it wouldignore the additional language in section3004(g)(6) (i.e., " * * requirements* * * which are applicable to newfacilities * * ", rather than'requirements of subsection (o)"). Inaddition, this would allow untreated"soft hammer" wastes with a valid

certification to be disposed in the sametypes of units as those First Thirdwastes which meet the applicabletreatment standards. EPA does notbelieve that this is what Congressintended; however, the Agency isrequesting comment on thisinterpretation. Also, as discussed ingreater detail in Section III. D., theAgency has reconsidered itsinterpretation of section 3004(h)(4) andis proposing to require wastes which aresubject to an extension to the effectivedate to be disposed in landfills andsurface impoundments only if such unitsare in compliance with the minimumtechnological requirements of section3004(o).

c. Certification by Owners orOperators as Well as Generators. Thestatute provides that generators of "softhammer" wastes certify to the Agencythat disposal in a landfill orimpoundment is the only practicalalternative to treatment currentlyavailable. This language raises twopotential problems: (1) Are generatorsthe only entity that can certify; and (2)can a certification be filed for landdisposal of treated "soft hammer"wastes.

With respect to the first problem, theAgency sees no reason to restrictcertification to generators. There aresituations where owners and operatorsof a treatment or storage facility may bemore knowledgeabl e as to whattreatment is available, or may otherwisebe more sophisticated in the nuances ofadministrative recordkeeping than agenerator. The Agency does not believethat the underlying policy of the "softhammer" provision would be subvertedby allowing these entities the option ofsubmitting a certification.

With respect to the seccnd problem,although the statute does not -addressthe issue of certification for treatmentresiduals, the Agency is of the view thatthe certification provisions would apply.This reading is necessary to avoid theanomalous result of "soft hammer"waste treatment residues beingprohibited from land disposal butuntreated wastes being land disposed inimpoundments and landfills after filing acertification. Congress could not haveintended this result. Consequently, theAgency is proposing that the "softhammer" certification apply to bothuntreated wastes and treatmentresiduals. A certification for a treatmentresidue would also state that there is notreatment practically available toachieve meaningful reductions intoxicity or mobility at the time ofcertification.

3. Certification Requirements

EPA believes the intent of Congresswas to ensure that wastes for whichtreatment standards or extensions to theeffective date were not-establishedwould nevertheless be treated to reducethe toxicity or mobility of the hazardousconstituents by practically availabletreatment technologies prior to disposalin landfill or surface impoundment unitsthat meet the minimum technologicalrequirements. As stated earlier, EPAinterprets this to mean that where the"best" demonstrated treatment is notcurrently available, the "next best"demonstrated treatment is required, solong as meaningful reductions can beachieved. The Agency also interpretsthis to mean that this requirement is notnecessarily fulfilled by a singletreatment step. Because a waste hasbeen treated does not mean that furthermeaningful reduction of toxicity ormobility is not available. Before atreated "soft hammer" waste may bedisposed in a landfill or surfaceimpoundment, the generator or owner oroperator thus must still certify that thereis no practically available treatment thatmeaningfully reduces the toxicity ormobility of the hazardous constituents.

The Agency is also proposing torequire generators or owners oroperators to certify that they haveutilized the practically available"treatment" (or train of treatment) thatmost reduces the toxicity or mobility ofthe hazardous constituents. Therefore,where more than one treatmenttechnology is available, the treatmentwhich provides the most meaningfulreduction in toxicity or mobility isrequired. This interpretation precludessome forms of treatment where "better"treatment is available. For example, awaste may be amenable to meaningfultreatment by two available technologies,incineration and stabilization, whereincineration yields the greater reductionin toxicity or mobility. If incinerated, theresiduals may still require furthertreatment by stabilization before theyare eligible for.disposal in a landfill orsurface impoundment unit. However, ifthe waste is first stabilized, incinerationmay no longer be available for theresidual. Such stabilization as the initialtreatment would not provide the mostmeaningful reduction in toxicity ormobility, and the Agency thus would notaccept a certification to this effect,assuming incineration remainspractically available. EPAis solicitingcomments on this interpretation.

The Agency thus is proposing in§ 268.8 that the following requirementsbe met before a "soft hammer" waste is

11767



Federal Register / Vol. 53, No. 68 / Friday, 'April 8, '1988 / Proposed Rules

eligible for land disposal in a landfill orsurface impoundment unit:

(1) The generator has made a good faitheffort to locate and contract with treatmentor recovery facilities which can meaningfullyreduce the toxicity or mobility of hazardousconstituents in the waste.

(2) If the waste has been treated, thegenerator or owner or operator demonstratesthat no treatment is practically available toprovide further meaningful reductions in thetoxicity or mobility of hazardous constituentsin the residual at the time of certification.

(3) The generator or owner or operatorcertifies that the above conditions have beenmet and sends the Regional Administratorthe certification and supportingdocumentation, and keeps the samedocumentation on-site.

(4) Following certification to the RegionalAdministrator, the generator or owner oroperator must send a copy of the certificationand supporting documentation to the disposalfacility with the initial waste shipment, andcontinue to send the certification itself witheach shipment of waste thereafter.

(5) The owner or operator of the disposalfacility mustI (a) keep all information and documentationreceived with the waste in the operatingrecord, and

(b) ensure that such waste is only placed ina landfill or surface impoundment unit thatmeets the minimum technologicalrequirements of RCRA section 3004(o) (i.e.,double liner, leachate collection system, andground-water monitoring or compliance witha statutory variance from theserequirements).

4. Treatment of "Soft Hammer" Wastesin Surface Impoundments.

Under § 268.4 (which implementsRCRA section 3005(j)(11)), restrictedwastes may be treated in surfaceimpoundments that meet the section3004(o) minimum technologicalrequirements provided that, among otherthings, residuals not meeting theapplicable treatment standards (orstatutory prohibition levels wheretreatment standards are not established)are removed within one year ofplacement in the impoundment. Becauseno treatment standards have been setfor "soft hammer" wastes, removal ofthese residuals would seemingly berequired.

There is an anomaly with this result,however. Were the owner or operator toconsider the unit to be a disposalimpoundment he could certify that nopractical alternative to disposal existsand dispose of them in the sameimpoundment. Or, he could remove theresidues, and, making the samecertification, put them back. Providedthat no further treatment is practicallyavailable, these residuals would beeligible for disposal in the same surfaceimpoundment unit from which they wereremoved (since the minimum

technological requirements for disposalof "soft hammer" wastes in a surfaceimpoundment and for treatment ofrestricted wastes in a surfaceimpoundment are identical).

The Agency believes that requiringsuch removal of treatment residuals of"soft hammer" wastes (which may thenbe eligible for disposal in the same typeof unit, or indeed, the very same unit)would simply impose costs with noenvironmental benefit. In such cases,therefore, the Agency is proposing thatthe certification required for disposalmay be made without removal of theresiduals provided that no treatment tofurther meaningfully reduce the toxicityor mobility of hazardous constituents ispractically available. This certificationmay be made by the generator or owneror operator at the time of placement inthe impoundment for treatment.

5. Retrofitting Variances

There is one final interpretive issueregarding the "soft hammer" provisionon which the Agency solicits comment.The question is whether surfaceimpoundments that do not meetminimum technological requirements(MTRs) applicable to new facilities, butwhich do satisfy one (or more) of thevariances for impoundment retrofittingin section in 3005(j) can neverthelessreceive "soft hammer" wastes. TheAgency believes that this is acomplicated question, but that the bestreading is the following.

First, under section 3004(g)(6),landfills or impoundments that receive"soft hammer" wastes must be incompliance with the MTRs for newfacilities. These require either doubleliners and leachate collection systems,or, as provided in section 3004(o)(2),alternative design and operatingpractices and location characteristicsthat prevent migration of hazardousconstituents at least as effectively asdouble liners and a leachate collectionsystem.

Interim status surface impoundmentsin existence on November 7, 1984 mayreceive a waiver from retrofitting theunits to meet the same MTRs, but fordifferent reasons. Thus, the followingtypes of impoundments need not retrofit;single-lined interim status units locatedno closer than one-quarter mile from anunderground source of drinking water,which are in compliance with applicablegroundwater monitoring requirements(section 3005(j)(2)); aggressive biologicaltreatment facilities in compliance withapplicable Clean Water Act permitrequirements and groundwatermonitoring requirements (section3005(j)(3)); units that are designed,operated, and located to prevent

migration of hazardous constituents togroundwater or surface water (section3005(j)(4)); or units operating pursuant toa consent decree providing equivalentenvironmental protection as MTRs(section 3005(j)(13)).

These section 3005 variances may ormay not be equivalent to the M'TRvariance standard in section 3004(o)(2)."no migration" impoundments in section3005(j)(4), for example, would almostcertainly satisfy the 3004(o)(2) standard;aggressive biological treatmentimpounds operating without liners mightnot. For this reason, the Agency doesnot believe that the statuteautomatically allows placement of "softhammer" wastes into these types ofimpoundments. They do not necessarilymeet the MTRs for new landfills andsurface impoundments, as required bysection 3004(g)(6).

Second, the Agency believes that ifany section 3005(j) impoundment wouldactually make the demonstration calledfor in section 3004(o)2), it could thenreceive "soft hammer" wastes. In thiscase, the impoundment would besatisfying the MTR applicable to newsurface impoundments and should notbe prohibited from receiving "softhammer" wastes.

Third, section 3005(j)(11) provides thatotherwise prohibited wastes can beplaced in surface impoundments fortreatment provided, among otherconditions, that the impoundment eithermeets MTRs or satisfies the conditionsof section 3005(j)(2) or (4) (single liner,one-quarter mile from an undergrounddrinking waster source, or "nomigration" to groundwater or surfacewater). The Agency reads this provisionas allowing continued receipt of "softhammer" wastes in such impoundments;there is no apparent reason that solvent,dioxin, and California list wastes can beplaced in such impoundments, but not"soft hammer" wastes. A consequenceof this rewarding would be thattreatment impoundments satisfyingsection 3005(j)(2) or (4), but not MTRs,and not making the MTR equivalencedemonstration would be able tocontinue receiving "soft hammer"wastes. Section 3005(j)(3) and (13)treatment impoundments, however,would remain ineligible because theseimpoundments are excluded fromsection 3005(j)(11) eligibility. Thisreading is consistent with the Agency'sgeneral interpretation of section3005(j)(11) to exclude section 3005(j)(3)and (13) impoundments. (See 51 FR 1609,January 14, 1986).

11768




D. Disposal of Restricted WastesSubject to an Extension of the EffectiveDate

RCRA section 3004(h)(4) states that arestricted waste subject to an extensionof the effective date "* * *may bedisposed of in a landfill or surfaceimpoundment only if such facility is incompliance with the requirements ofsubsection (o)." [Emphasis added].Section 3004(o) refers only to new,replacement, or lateral expansionlandfill or surface impoundment units.

In the November 7, 1986 rulemaking(51 FR 40572), EPA interpreted the word"facility" to refer to the facility as awhole. This interpretation allows f6r thedisposal of such wastes in landfill andsurface impoundment units that do notmeet the minimum technologicalrequirements provided that all new,replacement, or lateral expansion unitsat the facility (if any) are in compliancewith the minimum technologicalrequirements of RCRA section 3004(o).

EPA has reevaluated its originalinterpretation, and now believes thatCongress intended the term "facility" torefer to "unit", which is consistent withthe Agency's interpretation of "facility"in section 3004(g)(6), which refers to thedisposal of First Third wastes for whichno treatment standards have beenestablished. Although section 3004(g)(6)is linguistically distinguishable (since itrefers to the minimum technologicalrequirements applicable to newfacilities), the Agency's initial reactionis that Congress did not intend adifferent result for restricted wastessubject to capacity variance and "softhammer" provisions. Both provisions,for example, deal with the same type ofsituation where treatment capacity isunavailable and restricted wastes arebeing disposed in a type of unit forwhich Congress showed particularconcern. In addition, section 3004(h)(4)also refers to "such faciliti[es]"immediately after mentioning landfillsand surface impoundments, thusindicating that the reference to facilitywas intended to apply to the specificunit. Furthermore, EPA believes it is theintent of Congress to require untreatedwastes to be disposed in landfill andsurface impoundment units that arepresumably more protective than unitsthat do not meet the minimumtechnological requirements. Legislativehistory to section 3004(h)(4) in factstates that Congress meant to prohibitdisposal of restricted wastes subject to acapacity variance in all surfaceimpoundments or landfills except thosemeeting minimum technologicalrequirements applicable to newfacilities-the same language as used in

section 3004(g)(6) which the Agencyviews as clearly requiring the landfilland impoundment units to meet theminimum technological requirements.(See H.R. Conf. Rep. No. 1133, 98thCong., 2d Sess., 87)(This passage in theConference report actually refers todisposal of waste subject to a one-yearcase-by-case capacity variance undersection 3004(h)(3), but the Agency seesno basis for not applying it to section3004(h)(2) as well.

In justifying its original interpretationin the November 7, 1986 final rule, EPAexpressed concern with theinconsistency of requiring wastes whichhave been granted an extension to theeffective date due to a lack of sufficienttreatment capacity, to go to units thatwere considered in determining whethertreatment capacity was available,namely treatment surfaceimpoundments required by section3005(j)(11) to meet minimumtechnological requirements. Thisinconsistency no longer exists becausethe retrofitting requirements for surfaceimpoundments become effective inNovember 1988. These requirements arethe same whether the unit is used fordisposal or treatment. Also, as oldlandfills (or old cells at landfills) areclosed, new landfills (or new cells) willmeet the minimum technologicalrequirements. Thus, the number of unitsavailable that do not meet the minimumtechnological requirements hasdiminished and will continue to do so.Therefore, the Agency is proposing thatall restricted wastes subject to anextension of the effective date bedisposed of in landfills and surfaceimpoundments only when such unitsmeet the minimum technologicalrequirements.

E. Relationship to California ListProhibitions

As discussed in the July 8, 1987California list final rule preamble (52 FR25773), and as reflected in § 268.32(h)(i.e., the overlap of the HOCs and otherprohibited wastes), where the Agencymakes a waste-specific determinationthat is more specific than the Californialist determination, such determinationswill supersede the California listtreatment standards and effective dates.The Agency intends this principle toapply to the restrictions on the landdisposal of First Third wastes. While itis clear that Agency-establishedtreatment standards or effective datesfor First Third wastes are more specificthan California list determinations, thereis some ambiguity surrounding theapplicability of the California listrestrictions to "soft hammer" wastes.

Until promulgation of the restrictionson land disposal of First Third wastes,many of these wastes are subject to theCalifornia list restrictions. Oncetreatment standards and effective dateshave been promulgated for such wastes,the California list restrictions clearlywill be superseded. However, notreatment standards will have beenpromulgated for "soft hammer" wastes.EPA is therefore proposing that "softhammer" wastes which are otherwisesubject to the California list restrictionsremain subject to the California listtreatment standards and effective dates.It should be noted that if a nationalcapacity variance has been granted for a"soft hammer" waste under theCalifornia list final rule, such a wastewould remain subject to thedemonstration and certificationrequirements of § 268.8 (as discussed inSection III. C.). This approach not onlyrecognizes that the California listtreatment standards are not actuallyeffective for such a waste (due to thenational capacity variance), but alsoremains consistent with the Agency'sintent that where more than oneregulatory requirement applies, the morestringent requirement will apply. TheAgency solicits comment on itsapproach to the applicability of theCalifornia list prohibitions to "softhammer" wastes.

EPA is also considering a change inthe approach on the applicability ofCalifornia list restrictions to wastes forwhich a more specific determination hasbeen made. For First Third wastes forwhich treatment standards have beenestablished, but for which the Agencyhas granted a national capacity variancedue to inadequate capacity to treat thewaste to the treatment standard, theAgency is considering an approachwhere such First Third wastes wouldremain subject to the California listprohibitions during the period of thenational variance. For example, assumethat a liquid metal-containing First Thirdwaste (otherwise subject to theCalifornia list restrictions) has beengranted a national capacity variancebecause of inadequate capacity to treatthe waste to the treatment standard, yetwas not granted a variance under theless stringent (in terms of concentrationlevels of the metal) California listprohibitions that are in effect at thistime. The Agency would determine that,because capacity exists to treat the"California list" waste to allow for landdisposal, the California list prohibitionsstill apply and the "First Third" wastewould be required to comply with theCalifornia list prohibitions. The FirstThird treatment standard would then be

11769



Federal Register / Vol. 53, No. 68 / Friday, April 8, 1988' Proposed Rules

applicable on the First Third effectivedate.

Granting a national variance for theFirst Third waste in the above examplebased on inadequate treatment capacitycould allow the land disposal ofuntreated wastes which may have metalconcentrations exceeding that of theotherwise applicable California listprohibition levels, for which the Agencyhas determined that treatment to meetat least California list prohibitions isavailable. This approach would vitiatethe measure of environmental protectionachieved by treating the waste to belowCalifornia list levels (or rendering thewaste non-liquid). Similarly, if theAgency were to establish treatmentstandards for California list metals andcyanides and promulgated capacityvariances because of a lack of sufficienttreatment capacity to meet thesestandards, the wastes would still berequired to be treated to meet theCalifornia list statutory prohibitions (seegenerally 52 FR 29992, August 12, 1987).However, EPA realizes that thisconstitutes a change in approach fromthat stated in the California list finalrule (52 FR 25773] and therefore solicitscomment.

F. Determination as to the Availabilityof the Two-Year Nationwide Variancefor Solvent Wastes Which Contain LessThan 1 percent Total FOOl-FO05 SolventConstituents

In a June 4, 1987 technical correctionnotice (52 FR 21010) to the November 7,1986 final rule. prohibiting land disposalof certain spent solvent and dioxin-containing hazardous wastes, EPApromulgated an amendment to§ 268.30(a)(3) reclarifying that solventwastes that-are prohibited in the handsof their initial generator-i.e., that arenot subject to any applicable variance-cannot be permissibly land disposeduntil treated to meet the § 268.41treatment standards. This principleapplies to. all residues from treatment(unless they are part of a differenttreatability group for which EPA hasdetermined that no treatment capacityexists). (See 52 FR 21012, June 4, 1987and also 52 FR 22356-22357, June 11,1987.) Because questions have beenraised regarding the policy basis for theaction, and because the underlyingprinciple is an important one whichwarrants the fullest consideration, EPAhas decided to seek further comment onthis issue, and (if comment warrants] torevise its current approach accordingly.

The Agency has stated many timesthat a determination as to whether awaste is restricted, from land disposal isto be determined at the initial point ofgeneration in.order totavoid

compromising the integrity of the Part268 Subpart D treatment standards (see51 FR 41620, November 7, 1986 and 52FR 25765, July 8, 1987). Determining theapplicability of a prohibition at any laterpoint could result in the treatmentstandard being supplanted.

In the case of the prohibited solventwastes, EPA established an effectivedate of November 8, 1988 for restrictedsolvent wastes containing less than 1%total restricted solvent constituents (40CFR 268.30(a)(3)). The determinationshould be made by the initial generatorat the point of generation so that the.§ 268.41 treatment standards-which arebased on data showing that thesesolvents' mobility can be verysignificantly reduced with propertreatment normally involvingincineration-not be supplanted by the1% national capacity variance level.This could occur if solvent treatmentresidues treated to 1% solventconstituents then became eligible for anational capacity variance; the 1% levelwould become a de facto treatmentlevel, whereas the true, achievabletreatment level would, in most cases, beorders of magnitude lower. Wherecapacity exists to treat the residues, thisresult is simply at odds with thestatutory scheme embodied in section3004(m). (See 51 FR 44620, November 7,1986.)

There would be no reason fortreatment facilities to continue treatingrestricted solvent wastes below the 1%level. For instance, the Agency notedthat the BDAT treatment train for manyrestricted solvent wastes involvesdistillation of the solvents followed byincineration of the still bottoms fromdistillation. The residues of incinerationshould then meet the Subpart Dtreatment standards (assuming thatincineration is conducted properly]. (See51 FR 1727, January 14, 1986.) Were theprohibition point to be determinedanywhere but the point of generation ofthe spent solvent, there would be noreason to continue treating solvent stillbottoms that contain less than 1% of therestricted solvents, even though the stillbottoms are amenable to furthertreatment and the Subpart D treatmentstandards are based on furthertreatment.

The Agency also has indicated thatwhere it has determined that notreatment capacity exists to treat aparticular residue from treatment, thenthe capacity variance would apply tothe residue from treatment. This couldoccur most normally when treatmentgenerates a residue which belongs in anew treatability group for which theAgency has determined that there is no

existing treatment capacity (see 52 FR22357, June 11, 1987). The Agencycontinues to believe that this is a soundprinciple.

With respect to solvent distillationbottoms, however, EPA's data indicatethat a capacity variance is unwarranted.Since the initial January .14, 1986proposal, the Agency has stated thatdistillation bottoms have to be treatedfurther before they could be landdisposed (see 51 FR 1724).. The Agencyalso has found that incinerationtreatment capacity exists for theseresidues from solvent distillation. (See51 FR 1724, 1727, and 1729, January 14,1986; 51 FR 40615, November 7, 1986; andCapacity Background Document forNovember 7, 1986, Solvent Rule, pp. 63-64, 66.)

These passages all indicate that theAgency assessed the volume ofdistillation bottoms resulting fromdistillation of restricted solvent wastesand determined that there was adequateincineration capacity to treat them.These conclusions were not challengedduring the solvent land disposalprohibition rulemaking, but the Agencyagain solicits comment, in light ofoperating experience since promulgationof the November 7. 1986 rule, as towhether there is adequate treatmentcapacity to treat residues fromtreatment of restricted solvent wasteswhere suchresidues contain less than1% total solvent constituents but do notmeet the applicable Subpart D treatmentstandards. If commenters believe thatthis may be the case (based onappropriate data), the Agency solicitsfurther comment as to whether there isany basis for considering these residuesto be a different treatability group.

In proposing regulatory language andsoliciting comment on this issue, theAgency is not withdrawing its existingregulation. The Agency notes, however,that its earlier actions on this issue wereprospective only. (See 52 FR 21010,stating that the revisions are effectiveon June 4, 1987.) Thus, the June 4, 1987revisions to § 268.30(a)(3) have noapplicability to any certifications madebefore that date or to- any treatmentresidues land disposed before that date.(See 52 FR 21012, June 4, 1987 (item #16);id. at 21017 (item #62].)

G. Storage Prohibition

The storage prohibition in § 268.50 isapplicable to all First Third wastes,including those wastes for whichtreatment standards have not beenestablished (f.e., "soft hammer" wastes).'The. statutory language in, RCRA section3004(j)7 statesthat:

11770




In the case of any hazardous waste whichis prohibited from one or more methods ofland disposal under this section (or underregulations promulgated by the Administratorunder any provision of this section) thestorage of such hazardous waste is prohibitedunless such storage is solely for the purposeof the accumulation of such quantities ofhazardous waste as are necessary tofacilitate proper recovery, treatment ordisposal.

Under RCRA section 3004(g)(6), "softhammer" wastes are prohibited fromdisposal in landfills and surfaceimpoundments unless the generatorcertifies that such disposal is the onlypractical alternative to treatmentavailable to the generator. Therefore,"soft hammer" wastes are prohibitedfrom "one or more methods of landdisposal", and are subject to the storageprohibition.

EPA does not believe that Congressintended the storage prohibition toapply to wastes which are no longerprohibited from "one or more methodsof land disposal". Should a "softhammer" waste be subject to thecertification set forth in § 268.8, thiswaste would no longer be prohibitedfrom any form of land disposal. TheAgency is proposing that the storageprohibition would no longer beapplicable, and § 268.50 would beamended to reflect this interpretation.This is consistent with the Agency'sapproach to wastes which are subject toan extension of the effective date, whichare also not subject to the storageprohibition.

H. Petitions To Allow Land Disposal ofProhibited Wastes

1. Overview

The statutory language of RCRA 3004(d), (e), and (g) includes provisionsallowing an interested party to petitionto dispose of prohibited wastes in landdisposal units, including deep injectionwells, provided that the petitionerdemonstrates to the Administrator "to areasonable degree of certainty that therewill be no migration of hazardousconstituents from the disposal unit orinjection zone for as long as the wastesremain hazardous." Land disposal ofotherwise prohibited hazardous wastesmay be allowed only where it can bedemonstrated, to a reasonable degree ofcertainty, that the statutory standardwill be met.

On November 7, 1986, EPApromulgated regulations (51 FR 40572)-that provided procedures for submittalof petitions to allow land disposal of awaste prohibited under Subpart C ofPart 268. The regulation (40 CFR 268.6]included the information that must beprovided in a "no migration"

demonstration, the criteria thedemonstration must meet, and theAgency's review and approvalprocedures.

Since promulgation of the November7, 1986 final rule, the Agency has hadseveral inquiries regarding theappropriate content of "no migration"petitions. In response to these questions,EPA is proposing additionalrequirements in today's rule. This ruledoes not, however, present the Agency'sinterpretation of the statutory "nomigration" language of RCRA 3004 (d),(e), and (g). The Agency hopes to furtheraddress this question at a later date.

Today's notice discusses additionalrequirements relating to:

(1) Other applicable laws;(2) Monitoring plans;(3) Variance departures; and(4) Detection of hazardous constituent

migration.A detailed discussion of theserequirements is provided in Section 4.2. Requirements for "No Migration"Petitions in the November 7, 1986 FinalRule

In the final rule published onNovember 7, 1986, the Agencypromulgated procedures and criteria for"no migration" petitions for surfacedisposal units. As codified in 40 CFR268.6 (d) through (j), EPA requires all"no migration" petitions to be submittedto the Administrator containinginformation that describes: (1) specificwastes and specific unit(s) involved, (2)chemical and physical characteristics ofthe wastes, and (3) comprehensivecharacterization of the disposal unit andenvironment.

A successful petition must meet thefollowing criteria that form the basis forthe Agency's evaluation of thedemonstration for compliance with thestatutory language:

(1) Waste and environmentalsampling, testing, and analysis data areaccurate and reproducible;

(2) Sampling, testing, and estimationmethods for determining chemical andphysical properties of wastes andenvironmental parameters areexplained;

(3] Simulation models used in thedemonstration must be calibrated forspecific waste and site conditions;

(4) Quality assurance and qualitycontrol plan must be submitted thataddresses all aspects of thedemonstration;

(5) An analysis must be performed toidentify and quantify any aspects of thedemonstration that contributesignificantly to uncertainty. Thisanalysis must include an evaluation ofthe consequences of predictable future

events, including, but not limited to,earthquakes, floods, severe stormevents, droughts, or other naturalphenomena; and

(6) A statement must be prepared andsigned that verifies the petitioner'sfamiliarity with all information in thepetition and that the data andinformation is true, accurate andcomplete to the extent possible.

In addition to these requirements, thefollowing provisions are applicable tounits that have received a variance fromthe land disposal prohibitions;

(1) The petition will apply only to landdisposal of specific restricted wastes atthat disposal unit;

(2) The effective period of the petitioncan be no longer than the term of theRCRA permit if the unit is operatingunder a RCRA permit, or upto amaximum of 10 years from the date ofapproval if the unit is operating underinterim status. Terms of the petition ineither case will expire upon terminationor denial of a RCRA permit, or upon thetermination of interim status (exceptwhen interim status is terminated by theissuance of a permit), or when the wastevolume limit of the disposal unit duringthe effective period of the petition isreached; and

(3) The petition does not relieve thepetitioner of his responsibilities in themanagement of hazardous waste under40 CFR Parts 260 through 271.

The applicants are required to complywith all restrictions on land disposalthat are in effect during the time periodin which the petition is being prepared,submitted, and reviewed until a finaldecision by the Administrator is made.The Administrator may requestadditional information as needed toevaluate the demonstration. Aftercompleting review of the application, the

- Administrator will announce to thepublic and solicit comments on hisintent to approve or deny the petition inthe Federal Register. After review ofpublic comments, he will then publishhis final decision on the petition in theFederal Register.

3. Regulatory Requirements of RCRASections 3004 (f) and (g) November 7,1986 Final Rule

The Agency recently proposed rules toimplement the land disposal restrictionsof section 3004 (f) and (g) of RCRA forwaste disposal in deep injection wells(52 FR 32446, August 27, 1987]. While thestandards applied to owners oroperators of deep injection wells inthese proposed rules are the same asthose in today's proposal, the criteria,content, and procedures are different inthat they specifically pertain to unique

11771




technological and hydrogeologicconditions associated with injection.The reader should refer to these August27, 1987 proposed rules for completediscussion of how the Agency intends toapply the "no migration", standards indeep injection wells.4. Additional Requirements for "NoMigration" Petitions for Surface Units

Based on review of the inquiries andcomments received on the subject of "nomigration" petitions, the Agency isproposing additional requirements to beeffective on the date of promulgation.These requirements would be added tothose already codified in 40 CFR Part268 for "no migration" petitions forsurface disposal units. Today's proposedrule provides further procedural andinformational requirements applicableto those surface disposal units for whicha variance from the land disposalrestrictions is being sought, and does notinterpret the statutory language ofRCRA sections 3004 (d), (e) and (g)regarding "no migration"demonstrations. Specific informationand procedural requirements of today'sproposal are discussed below.

(1) Other Applicable Laws: EPA isproposing to require the petitioner toprovide sufficient information in thepetition demonstration to assure theAdministrator that land disposal of theprohibited waste(s) (in the petition) willcomply with other applicable Federal,State, and local laws (Section 268.6(d)(1)). The petitioner must review Federal,State and local laws to determine ifstricter regulations must be applied tothe unit for which the petition issubmitted. This review is necessary toreveal environmentally sensitive areasand endangered species which must beprotected. The review of Federal lawsshould include, but not be limited to, theClean Air Act; the Clean Water Act; theSafe Drinking Water Act; theEndangered Species Act; the NationalHistoric Preservation Act; the Wild andScenic Rivers Act; the Coastal ZoneManagement Act; the Fish and WildlifeCoordination Act; the Atomic EnergyAct; and the Marine Protection,Research, and Sanctuary Act. Thereview- of State and local laws must bedetermined on a case-by-case basis.Under 40 CFR 270.3, an owner oroperator seeking a RCRA permit for aunit must demonstrate compliance withseveral Federal laws, including some ofthose listed above: The Agency does notforesee that an owner or operatorsatisfactorily making a timelydemonstration for those laws coveredunder § 270.3 in order to obtain a permit,will have to make anotherdemonstration of compliance with those

same laws for the purposes of obtaininga "no migration" variance.

(2) Monitoring Plan: Under Section268.6(d)(2) of today's proposal, EPA isproposing that petitioners submit amonitoring plan to the Administratorthat describes the monitoring programinstalled at and/or around the unit toverify continued compliance withconditions of the variance.

This monitoring plan must besubmitted as part of the "no migration"petition and must provide informationon the monitoring of the unit and/or theappropriate environment around theunit, or, if monitoring the unit or theenvironment around the unit is eithertechnically infeasible or impracticable,the rationale supporting thedetermination of infeasibility orimpracticability. If the petitioner assertsthat monitoring is impractical orinfeasible, no monitoring plan (for theunit or environment as appropriate)need be submitted. However, theAdministrator will decide if monitoringof the unit itself or monitoring of theenvironment around the unit, or both, isrequired, based on the factorssupporting the variance and otherinformation provided. If EPA decidesthat such a plan is necessary, thepetitioner will be required to submit aplan before the final decision on thepetition will be made.

If a monitoring plan is required, thepetitioner must submit as part of thatplan the following information:

a. The media monitored, in caseswhere monitoring of the environmentaround the unit is required;

b. The type of monitoring conductedat the unit, in the cases wheremonitoring of the unit is required;

c. The location of the monitoringstations;

d. The monitoring interval (frequencyof monitoring at each station);

e. The specific hazardous constituentsto be monitored;

f. The implementation schedule for themonitoring program;

g. The equipment used at themonitoring stations;

h. Sampling and analytical techniquesemployed;

i. Data recording/reportingprocedures.

The plan must include discussion ofthe rationale for the design of themonitoring program and demonstratethat monitoring will be positioned so asto detect migration from the unit at theearliest practicable time. Specifically,the plan must provide discussion of themonitoring program with respect to thefollowing points

a. Mobility and persistence ofhazardous waste constituents managedin the unit;

b. Possible migration pathways fromthe unit, both during the active life of thefacility and through the post-closurecare period;

c. Operations at the unit;d. Strength of engineered and natural

material components of the unit and anyweak points in the unit design.

e. Optimum location of the monitoringstations to detect any migration ofhazardous constituents at the earliestpracticable time.

The Agency believes that monitoringprograms, either for the unit itself or theenvironment around the unit, or bothwill be required in most cases. Only in avery few instances does the Agency feelthat monitoring of the unit itself or theenvironment around the unit may not beappropriate or technically feasible. Onesuch case may be hazardous wasterepositories in geologic formations thatare so extensive that installation ofmonitoring wells around the formationitself may not allow detection ofmigration at the earliest time, andinstallation of monitoring wells in theformation may damage the integrity ofthe formation. Monitoring the repositoryitself (e.g., pressure monitoring of fluidsbetween well-casings in solution-minedcaverns, or leachate sumps and pumpsin room-and-pillar mines) may besuitable in this case.

A monitoring program should includemonitoring the behavior of wastes in theunit to detect any changes in the wastethat may affect the potential formigration of hazardous constituentsover time. Examples of this type ofmonitoring include periodic testing ofthe waste in a unit; leachate collectionsystems in surface impoundments,landfills, and room-and-pillar mines; andfluid'or gas pressure monitoring in wellcasings above solution-mined caverns insalt domes. To avoid monitoringsystems within the unit, the petitionermust show that the available technologyfor monitoring the unit would adverselyaffect the structural integrity or thewaste isolation capability of the unit.

The locations of the monitoringstations in the different media outside ofthe unit (if applicable) and/or within theunit itself (if applicable) must bespecified in the monitoring plan.Selection of the monitoring points in themedia around the unit and within theunit should be based on an assessmentof pollutant fate and transport andshould provide for detection of releasesof hazardous constituents at the earliestpracticable time.

11772




Groundwater monitoring systemsmust consist of a sufficient number ofwells installed at appropriate locationsand depths to detect migration to theground water at the earliest practicabletime. The groundwater monitoringprogram for conventional land disposalunits, such as surface impoundmentsand land treatment units, should complywith 40 CFR Parts 264 and 265 standardsand requirements as well as technicalguidance issued by EPA to properlylocate, design, drill, develop, andoperate groundwater monitoring wells.Monitoring systems must consist of asufficient number of devices located soas to detect migration of hazardousconstituents from the unit at the earliestpracticable time. All monitoring systemsand their capabilities must be specifiedin the monitoring plan of the petitionand approved by the Administrator.

A petitioner may be able toincorporate into his monitoring plan partor all or a groundwater monitoringprogram established for the purpose ofcomplying with 40 CFR Parts 264 and235 Subpart F. For example, a petitionermay be able to use all or some of hismonitoring wells if they will detectmigration at the earliest practicabletime, and may only have to increase thefrequency of monitoring.

The monitoring interval specified inthe monitoring plan (§ 268.6(d)(2)) mustprovide detection of migration ofhazardous constituents at the earliestpracticable time. The owner or operatormust submit a suggested monitoringinterval for all monitoring stations anddemonstrate that the frequency ofmonitoring at that station is adequate todetect releases of hazardousconstituents at the earliest practicabletime. The demonstration may be basedon computer simulations or otherassessments of pollutant fate andtransport in the particular media. TheAdministrator will determine if thesuggested interval is appropriate basedon the evaluation of the demonstration.The monitoring interval will varydepending on the media being monitoredand other site-specific factors. Thesefactors may include climatology,environmental setting, unit designcharacteristics, and wastecharacteristics.

The Appendix VIII constituents to bemonitored must be specified in themonitoring plan (§ 268.6(d)(2)). Theconstituents to be monitored in the unitshould be determined based onknowledge of waste composition andmobility of waste components. Forgroundwater, the constituents to bemonitored may be analogous to thosemonitored under Parts 264 and 265

Subpart F. Under Subpart F, dependingon whether the monitoring program is ina detection, compliance, or correctiveaction monitoring phase, an owner oroperator may be monitoring forindicator parameters, all Appendix IXconstituents, or specific wasteconstituents. A monitoring programundertaken to demonstrate "nomigration" may be able to make use ofSubpart F monitoring data. Althoughmonitoring indicator parameters underSubpart F may be helpful todemonstrate "no migration", the actualconstituents to be monitored must bedetermined based on an analysis of thewaste.

Monitoring outside the unit in thedifferent media should include, but isnot necessarily limited to, the mostmobile constituents for the particularmedia.

Where applicable, the monitoringprogram described in the petitionmonitoring plan must be in place for aperiod of time specified by theAdministrator prior to receipt of wasteat the unit (§ 268.6(e)) or as indicated inan alternative schedule as approved bythe Administrator. The monitoringprogram must be implemented duringthe time which the unit is receivingrestricted waste which does not meetthe treatment standards under 3004(m)and may also be necessary, in part or intotal, during the post-closure careperiod. Although the approved petitionis valid for only as long as the owner'sand operator's operating permit (10years maximum), the monitoring ofmedia to which the wastes couldpotentially migrate may continue for aslong as the waste remains hazardous.The objective of a monitoring programfor "no migration" variances is to allowdetection of migration of hazardousconstituents at the earliest practicabletime. During the operating life of theunit, such a detection of migration willprevent the unit from continuing toreceive waste not meeting standardsunder 3004(m) (see discussion below).During the post-closure care period,however, the unit is no longer receivingrestricted untreated waste, and theobjective of any monitoring is to detectthe need for corrective action. Thus, inmost cases, groundwater monitoringother than that already required forpost-closure care under §§ 264.117 and265.117 will not be necessary.Monitoring of additional media may benecessary during the post-closure careperiod if the activities conducted underpost-closure do not adequately protectagainst migration. However, the Agencydoes not envision that a disposal unitwhich has been properly closed will

pose a threat of migration through othermedia.

Monitoring of unit parameters, such astemperature or pressure, will not berequired after closure if the monitoringactivities would compromise theisolation capability of a disposal unit orwould not provide data of significanceto assess the unit's integrity afterclosure.

The monitoring program must meetthe criteria in § 268.6(f):

a. All testing, sampling and analyticaltechrriques must be conducted accordingto methods contained in EPAPublication SW-846 Solid Waste TestingMethods or must be approved by theAdministrator, and all data must beaccurate and reproducible;

b. Sampling, testing, estimation andmodeling techniques must be providedand approved by the Administrator; and

c. A Quality Assurance and QualityControl plan must be approved by theAdministrator.

The Agency believes that thereporting of monitoring data shouldoccur regularly, but that frequentreporting of monitoring data imposes a

.significant administrative burden on theowner or operator and the petitionreviewer. The Agency believes thatmonitoring data which is collected forthe purposes of demonstratingcompliance with the variance and whichdoes not reveal migration or significantchanges to the site, should be reportedannually to the Administrator. Aschedule for reporting the data shouldbe proposed in the petition andapproved by the Administrator. TheAgency is requesting comment onwhether data should be reportedannually, or more frequently. TheAgency further believes that monitoringdata may be reported to theAdministrator or kept on-site as part ofthe operating log. The Agency issoliciting comment as to whether themonitoring data should be reported tothe Administrator, kept in the operatinglog on-site, or both.

(3) Changes from Conditions of theVariance: Under 268.6(1) of thisproposal, if there is a change from thereported conditions at or around the unitor any change affecting the unit or thearea around the unit for which thepetition has been granted, this changemust be reported to the Administrator atthe earliest practicable time. TheAgency believes that any changes madeat the facility that may affect any part ofthe unit must be reported. For example,if the owner/operator proposes to makeengineering changes at the unit, thesemust be reported to the Administrator atleast 30 days prior to the change being

11773




made. If the monitoring plan for the unitneeds to be changed or upgraded tobetter reflect actual conditions at thesite, it must be reported to theAdministrator at least 30 days prior tothis proposed change. If site conditionschange (i.e., environmental changes), theAdministrator must also be notified ofthis change. The Agency realizes thatsome petitions will be submitted andapproved prior to a unit being built. Assuch, the Agency believes that it isnecessary to provide flexibility tochange some conditions of the petition ifnecessary to protect against migration,or to adequately detect a release.

The Agency also realizes thatconditions upon which the "nomigration" variance has been grantedmay prove to be different once the unitis operating. For example, a petitionermay predict, based on modeling, thatleachate concentration will be at acertain level and the petition wasapproved conditional upon thatconcentration. However, actualmonitoring of the leachate after the unitreceives restricted waste may show thatlevels are above those predicted. Such achange in the conditions of the varianceshould be reported to the Administrator.The Agency realizes that some changesmay not be significant enough towarrant action, but believes that allchanges to the unit or area around theunit, or changes that may affect unit orarea around the unit must be reported,both for pending petitions and facilitiesalready granted waivers. TheAdministrator will determine if suchchanges warrant actions such assubmittal of a new petition,modifications to the variance,revocation of the variance, or nochanges to the variance, among others.At this time, the Agency is unable todelineate changes which would beconsidered minor in their effect on the.variance. As such, the Agency proposesrequiring notification of all changes. TheAgency is soliciting comment on whatchanges should or should not bereported. The Agency is also solicitingcomment.as to whether all changes orsome changes need to be reportedimmediately or can be submitted as partof the reporting requirements formonitoring.

(4) Detection of HazardousConstituent Migration: Under proposed§ 268.6(m), if the owner or operatordetermines that there is a migration ofhazardous constituents from the unit,the owner or operator must immediatelysuspend receipt of restricted wastes atthe unit and notify the Administrator, inwriting, within 10 days of thedetermination. EPA believes that ten

days is a reasonable time period fornotifying the Administrator of amigration of hazardous constituents.The Agency, however, is interested inreceiving comments from the public onthe appropriate time period for thenotification of the Administrator. EPAalso believes that immediate suspensionof receipt of restricted wastes isnecessary in order not to compound theproblem of migration.

In the notification of migration(applying to all media), the owner/operator must provide analytical dataon the constituents, and an initialassessment of the cause of migration.The notification may include the owneror operator's planned response to therelease. The planned response mayinclude additional monitoring, correctiveactions to remediate the release, anddesign or operating modifications toprevent a recurrence of the release. Thenotification may also suggest whatresponse by the Agency would beappropriate.

A brief summary of the informationrequired in a notification is providedbelow:

a. The analytical data to be provided mustinclude but is not necessarily limited to thefollowing: (1) the owner or operator mustprovide the constituents detected and theconcentrations at which they were detected;and (2) the owner or operator must providemodeling data (if applicable) that estimatesthe levels of hazardous constituent migratingfrom the unit.

b. The notification must provide an initialassessment of possible causes of themigration. This assessment may include anevaluation of engineered components (i.e.,deterioration, construction deficiencies, etc.),changes in environmental factors (i.e.,climate, groundwater fluctuation, etc.), andother appropriate factors.

Following receipt of the, owner oroperators' notification of migration, theAdministrator will determine the actionsto be taken within 60 days of receivingthe notification. The Administrator willmake this decision based uponinformation provided in the monitoringplan, the "no migration" petition, andthe notification. Possible responses tothe notification may include revokingthe owner or operator's variance, partialclosing of the unit, additionalmonitoring, operational changes, orother appropriate responses. Apetitioner would then be affordedfurther opportunity to comment on theAgency's decision. However, EPAbelieves that the Agency's (and public's)interest in having only treated wastesdisposed in surface disposal units otherthan "no migration" units appears tooutweigh any private interest incontinued land disposal of untreated

wastes, and thus, justifies immediaeAgency action without further right tocomment before the decision.

If a final decision cannot be reachedby the Agency within 60 days, theAdministrator will issue a draft decisionspecifying temporary measures to be ineffect until a final decision is reached.Temporary measures that may bespecified by the Administrator include,but are not limited to, restrictions onwaste types or quantities placed in theunit, additional monitoring, orunrestricted continued operations.

I. Proposed Approach to ComparativeRisk Assessment

Within the regulatory frameworkestablished for implementing the landdisposal restrictions, EPA includedcertain criteria in the determination -of"available" treatment technologies. Onecriterion required that treatmenttechnologies not present greater totalrisks than land disposal wastemanagement practices. Although theAgency utilized comparative riskassessments in the development ofregulations prohibiting land disposal ofcertain solvent-containing and dioxin-containing hazardous wastes (November7, 1986 final rule) and California listwastes (July 8, 1987 final rule), theanalysis did not affect thedeterminations that treatment wasavailable.

Upon further consideration of theexisting comparative risk analysis, theAgency believes that the approach inwhich the risks of land disposal arecompared to the risks from alternativetreatment technologies is flawed. Incases where the land disposal practicecould be found to be less risky than anyof the treatment alternatives, theanalysis could lead to anomalousresults. For example, in a situationwhere the comparative risk analysisindicated that land disposal was theleast risky alternative available, therewould be no specified treatmenttechnology for the wastes. At the sametime, land disposal would be prohibitedby statute. Thus, the generator could notland dispose the wastes, even thoughtreatment could be conducted pursuantto other regulatory standards that assureprotection of human health and theenvironment.

A second anomaly is that unless EPAactually specifies a treatment method asthe treatment standard-normally anundesirable option (see 51 FR 44725,December 11, 1986)-the regulatedcommunity may still use treatmenttechnologies identified as riskier thanland disposal to comply with thetreatment standards. In this respect, the

11774




comparative risk assessments would notdeter the use of treatment found topresent greater total risk.

In light of these legal and practicalconsiderations, EPA does not believethe existing comparative riskassessment approach is warranted as adecision tool for this rulemaking in thedetermination of "available" treatmenttechnologies. In the future the Agencymay conduct risk analyses to distinguishbetween the overall degree of risk posedby alternative treatment technologiesand to make determinations concerningthe "best" technology based on net riskposed by the alternative practices. TheAgency solicits comment on this newapproach.

I. Determination of Alternative Capacityand Effective Dates for First ThirdWastes

1. Quantities of Wastes Land Disposed

EPA has estimated the total quantitiesof First Third wastes land disposedannually based on the results of theOSW RIA Mail Survey of Treatment,Storage, and Disposal Facilitiesregulated in 1981. The Agencyacknowledges that data from this surveyare not current and may limit theaccuracy of capacity analyses, butbelieves that this database is the onlycomprehensive information currentlyavailable that is specific enough toallow EPA to determine requiredalternative treatment capacity. EPA isdeveloping a new database that will beused for capacity determinations. Thenew database will be comprised ofinformation taken from responses to a1987 survey of treatment, storage,disposal, and recycling facilities. Sincethis new capacity database will not beavailable until early in 1988, thecapacity analyses for this propsoed ruleare based on the 1981 survey data.When the 1987 survey data becomeavailable EPA will reassess capacity.

Four methods of land disposal areincluded in the table below: Disposal inlandfills; storage in waste piles; disposalby land application; and treatment,storage, and disposal in surfaceimpoundments. Deep well injection,another method of land disposal, will beaddressed in a separate Federal Registernotice. Other methods of land disposalthat are affected by today's proposal(utilization of salt dome and salt bedformations and underground mines andcaves) are not addressed in the capacityanalyses because of insufficient data.Similarly, there is not enough data toestimate the capacity requirements forland disposed First Third wastesgenerated by Small, Quantity Generators

(SQGs) and form CERCLA responseactions and RCRA corrective actions.

TOTAL VOLUME OF FIRST THIRD WASTES

LAND DISPOSED EXCLUDING DEEP WELLINJECTED WASTES (MILLION GALLONS/

YEAR)

Disposal method Vol-ume

Landfill ............................................................... 600Land application ................................................ 100Storage in waste piles ..................................... 70Surface impoundments: ..............

Storage only ....................... 990Treatm ent only ............................................... 1130Storage and treatment ................ 300Disposal ...... .................................................. 250

Total ........................................................ 3440

About 250 million gallons of FirstThird wastes are disposed in surfaceimpoundments annually. Ultimately, allof this waste will require alternativetreatment capacity.

Approximately 990 million gallons ofFirst Third wastes are stored in surfaceimpoundments annually. Since storageimplies a temporary containment ofwaste, EPA has assumed that storedwastes are eventually treated, recycledor permanently disposed of in otherunits. To avoid double-counting of suchwastes, the volumes of wastes reportedas being stored in surfaceimpoundments were not included in theestimates of volumes requiringalternative treatment capacity.However, the Agency recognizes that,because of the restrictions on placementof wastes into surface impoundments,these wastes will eventually requirealternative storage capacity.

In addition to the wastes stored, about1.4 billion gallons for First Third wastesare treated or treated and storedconcurrently in surface impoundmentsannually. These wastes may still betreated this way, provided that theimpoundments meet the minimumtechnological requirements under RCRAby November 1988. However, whilethere are not data available to estimatethe quantity of waste treated inimpoundments that meet the minimumtechnological requirements, EPAbelieves that the volume is relativelysmall. Therefore, EPA has assumed thatall First Third wastes being treated ortreated and stored simultaneously insurface impoundments will requirealternative treatment and storagecapacity, usually in the form of eitherretrofitted impoundments or new tanktreatment systems.

2. Required Alternative Capacity

In order to assess the requirements foralternative treatment capacity that will

result from the restrictions of today'sproposed rule, the Agency firstcharacterized the volume of First Thirdwastes that require alternativetreatment capacity on the basis of landdisposal method, waste code, andphysical/chemical form. Using thisinformation, it was then possible todetermine which treatment technologiesare applicable to the waste volumes andto determine the volume of alternativetreatment capacity that will be requiredwhen owners/operators comply with theland disposal restrictions beingproposed today.

Due to time constraints, as explainedpreviously, Best DemonstratedAvailable Technology (BDAT) analyseshave not been completed for all of thescheduled First Third wastes. Capacityanalyses have not been performed for"soft hammer" wastes (P and U wastecodesJ or First Third E and K wastes forwhich treatment standards are not beingproposed today. Furthermore, theAgency has determined that generatorsof the waste K069 are able to totallyrecycle the waste volumes generatedand that the First Third wastes K004,K008, K036, K073 and K100 are no longerbeing generated. Since the treatmentstandard is set as "No Land Disposal"for wastes that are no longer generatedor are totally recycled, no capacityanalyses were necessary for thesewastes. The table below lists theamount of waste land disposed for thoseFirst Third wastes for which treatmentstandards are being proposed today.

VOLUME OF FIRST THIRD WASTES, Ex-CLUDING DEEP WELL INJECTEDWASTES, AFFECTED BY THE PROPOSEDRULE (MILLION GALLONS/YEAR)

Disposal method Vol-ume

Landfill .............................................................. 220Land application .............................................. .. 90Storage in waste piles ................... 50Surface impoundments: ..........

Storage only .............. ......... ............. .. 50Treatment only ............................... ............. 55Storage and treatment ................ 30Disposal .............. . ................... 85

Total ..................................................... 580Total (excluding Storage only) ........... 530

Based on our analysis, EPA estimatesthat today's proposed rule wouldpotentially affect about 530 milliongallons of First Third wastes that areland disposed annually that will requiretreatment capacity.

As explained elsewhere in thispreamble, EPA today is proposingtreatment standards that are expressedas concentration limits and is identifying

11775




the technology basis of the standards.EPA is not requiring that the specifiedtreatment technologies be used tocomply with standards. However, inorder to evaluate the treatment capacityrequired for First Third wastes, EPA isassuming that the entire volume ofwaste estimated for each waste codewill be treated using the same type oftechnology that forms the basis of theproposed treatment standards.

The treatment technologies used toestablish proposed treatment standardsfall under six categories: fluidized bedor rotary kiln incineration for K016,K018-K020, K024,K030, K037, and K048-K052, liquidinjection incineration for K015,wastewater treatment for K062,wastewater treatment and incinerationfor K103 and K104, chemical treatmentfor K071 and high temperature metalsrecovery for K061. The volumes of FirstThird wastes that will requirealternative treatment capacity are listedfor each category in the table below.

REQUIRED TREATMENT CAPACITY FORFIRST THIRD WASTES AFFECTED BYTHE PROPOSED RULE (MILLION GAL-LONS/YEAR)

Re-quired

Technology treat-ment

capac-

Fluidized Bed or Rotary Kiln Incineration 170Liquid Injection Incineration ............................. <1Wastewater Treatment for K062 ..................... 230Wastewater Treatment and Incineration forK103 and K O4 ............................................ 30

Chemical Treatment ................... 10High Temperature Metals Recovery ............... 90

Total ....................................................... 530

3. Capacity Currently Available andEffective Dates

Fluidized Bed, Rotary Kiln and LiquidInjection Incineration

EPA estimates that about 170 milliongallons per year of First Third wasteswill require fluidized bed or rotary kilnincineration capacity as a result oftoday's proposed standards.

EPA has identified rotary kilnincineration as BDAT for the wastes:K016, K018, K019, K020, K024, K030 andK037. While the treatment standards forthese wastes are based on rotary kilnincineration, the Agency believes that awell-designed and well-operatedfluidized bed incinerator will alsoachieve the treatment standards.Therefore, fluidized bed incinerationcapacity was included in the estimatesof treatment capacity.

EPA has identified fluidized bedincineration followed by stabilization ofmetals in the ash as BDAT for the K048,K049, K050, K051, and K052 wastes.While the treatment standards for thesewastes are not based on rotary kilnincineration, EPA believes that rotarykiln incineration in a well-designed andwell-operated unit followed bystabilization of metals in the ash willalso achieve the treatment standards.Therefore, rotary kiln incinerationcapacity was included in the estimatesof treatment capacity.

Liquid-injection incineration was usedto establish the treatment standard forK015. While BDAT is identified as liquidinjection incineration, the Agencybelieves that incineration in a well-designed and well-operated industrialfurnace (e.g., a cement kiln) will alsoachieve the treatment standard.Therefore, industrial furnace capacitywas included in the estimate oftreatment capacity for this waste.

As the Agency determined for theSolvents and Dioxins Rule (51 FR 40572),there is not enough commercial fluidizedbed or rotary kiln incineration capacityfor wastes requiring these technologiesand EPA lacks the informationnecessary for estimating on-siteincineration capacity at facilities thatgenerate these wastes. Therefore, EPAassumes that capacity is inadequate andproposes to grant a two-year nationalcapacity variance from the effectivedate for the following wastes: K016,K018, K019, K020, K024, K030, K037,K048, K049, K050, K051, and K052. Itshould be noted that capacity analyseswill be reviewed when the new databecome available.

The Agency has determined that thereis adequate liquid injection incinerationcapacity (including cement kilns)commercially available to treat K015wastes. Therefore, EPA does notpropose to grant a capacity variance forthis waste.

Wastewater Treatment for K062EPA estimates that about 230 million

gallons per year of the First Third wasteK062 would require wastewatertreatment as a result of today'sproposed rule. BDAT for K062 isidentified as chromium reduction,chemical precipitation and vacuumfiltration. The Agency believes that thistreatment is generally available on-siteand has determined for previous rules(51 FR 40572 and 52 FR 25760) that someavailable commercial capacity exists.Furthermore, approximately 42 percentof the K062 waste is currently beingmanaged in surface impoundments thatare subject to the minimumtechnological requirements under

RCRA. The Agency believes that someof these impoundments may either beretrofitted to meet the minimumtechnological requirements or may bereplaced by newly-installed tanktreatment systems. Consequently, EPAbelieves that adequate capacity for K062exists or will exist prior to promulgationof the final rule. Therefore, no varianceis proposed for K062.

Wastewater Treatment and Incinerationfor K103 and K104

EPA estimates that approximately 30million gallons per year of the FirstThird wastes K103 and K104 wouldrequire wastewater treatment andincineration as a result of today'sproposed rule. BDAT for these wastes issolvent extraction followed byincineration of the solvent contaminatedextract and followed by steam strippingand carbon adsorption of thewastewater. The Agency estimates thatabout four million gallons per year(approximately 13 percent of the originalvolume) of solvent contaminated extractwill require incineration and that theentire volume of waste will requiresolvent extraction followed by steamstripping and carbon adsorption.

The Agency has determined that thereis adequate incineration capacitycommercially available to treat theVolumes of K103 and K104 generated(this includes industrial kiln capacity aswell as liquid injection incinerationcapacity). However, EPA hasdetermined that there is not enoughsolvent extraction/steam stripping/carbon adsorption capacitycommercially available to treat thevolumes of K103 and K104. Therefore,even though incineration capacity isavailable, these wastes cannot betreated to the treatment standards.Since capacity for some treatment stepsis inadequate, EPA proposes to grant atwo-year national capacity variancefrom the prohibition effective date forK103 and K104.

High Temperature Metals Recovery forK061

EPA estimates that approximately 90million gallons of the First Third wasteK061 will require high temperaturemetals recovery capacity annually (eventhough K061 is a dust, the volume isgiven in gallons because all volumeswere reported as gallons in the RIA MailSurvey). Available data indicate thatgenerators are not equipped to treatK061 on-site and that there is not enoughcommercial capacity available to treatthe amount generated. Therefore, EPAproposes to grant a two-year national

11776



Federal Register / Vol. '53, No. 68 / Friday, April 8, 1988 / Proposed Rules

capacity variance from the prohibitioneffective date for K061.

Chemical Treatment for K071EPA estimates that about 10 million

gallons of the First Third waste K071would require chemical treatmentannually as a result of today's proposedrule. BDAT for K071 is acid leaching andchemical oxidation for nonwastewatersland sulfide precipitation followed byfiltration for wastewaters. The availabledata indicate that there are nocommercial treatment facilities thatmanage this waste and that mostgenerators are not equipped to treatK071 on-site. Therefore, EPA proposes togrant a two-year national capacityvariance from the prohibition effectivedate for K071.

4. Capacity Variances for "Derived-From" and "Mixed" Wastes

In developing estimates of thequantity of a waste that requirestreatment as a result of the landdisposal restrictions, EPA attempts todefine all such wastes including"derived-from" and "mixed" wastes.However, EPA's estimates of treatmentcapacity usually assume that all wasteis treated using the same type oftreatment technology that is determinedto be the basis for the BDAT treatmentstandards.

As explained earlier in this preamble,EPA's treatment standards will apply toa range of wastes with physical and/orchemical characteristics potentiallydifferent from the waste tested. In caseswhere the facility believes that theappropriate treatment technology isdifferent from the technologydetermined to be BDAT or that theassociated effective date isinappropriate, the facility can petitionfor either a variance from the treatmentstandard or a case-by-case capacityextension. (A case-by-case extensioncould be granted even if a variance fromthe treatment standard was notrequested or was denied.)

5. Capacity Variances for "SoftHammer" Wastes

The Agency is not barred fromgranting capacity variances for "softhammer" wastes, i.e. First Third wastesfor which there is no treatment standard(52 FR 25774-775, July 8, 1987). TheAgency, however, has discretion as towhether or not to grant such variances.[See RCRA section 3004(h)(2) ("TheAdministrator may establish aneffective date different from theeffective date which would otherwiseapply * * " (emphasis added)).] TheAgency believes it inappropriate toconsider capacity variances for "soft

hammer" wastes because section3004(g)(6) functions as an individualizedcapacity determination. Generators ofwastes destined for disposal in landfillsor impoundments, in effect, must maketheir own search of practically availabletreatment and certify the results. TheAgency thus believes it would be aninefficient use of its own resources (andpossibly an undermining of the "softhammer" scheme) if it were toundertake its own independent capacitydetermination for "soft hammer"wastes.

IV. Modifications to the Land DisposalRestrictions Framework

Today's proposal does two things.First, it proposes the Agency's approach'to restricting the land disposal of FirstThird wastes, presenting the conditionsunder which land disposal of thesewastes may be continued. Second, itproposes modifications to the existingframework of the Land DisposalRestrictions Program, as firstpromulgated on November 7, 1986 (51 FR40572) and subsequently modified in theJuly 8, 1987 California list final rule (52FR 25760). Unless otherwise specified,these proposed modifications will applyto all other restricted wastes. Thissection of today's proposal summarizesthese modifications and refers to moredetailed discussions in other sections ofthis preamble.

A. General Waste Analysis (§§ 264.14and 265.13)

The Agency has proposedmodifications to § § 264.13 and 265.13 toreflect provisions for the treatment of"soft hammer" wastes in surfaceimpoundments. The frameworkpromulgated November 7, 1986 providedfor an exemption allowing treatment ofrestricted wastes in surfaceimpoundments meeting the minimumtechnological requirements (i.e., doubleliner, leachate collection system, andgroundwater monitoring), provided thatresiduals that do not meet the treatmentstandard are removed annually. Asdiscussed in Section III. C. 3., thisexemption is extended to allow forwastes subject to the "soft hammer"provision (i.e., wastes for which notreatment standard has beenestablished). Nonsubstantivemodifications are also proposed to makethese sections more readable.

B. Operating Record (§ 264.73 and§ 265.73)

The Agency is proposing to modify§ 264.73 and § 265.73 to require retentionof the § 268.8 certification, i.e. thecertification applicable to "softhammer" wastes. EPA is also proposing

to require that facilities retain the newtracking notice required under § 268.7for generators sending "soft hammer"wastes to receiving facilities, and fortreatment facilities sending "softhammer" wastes to a disposal facility.The proposed notice and certification isdiscussed further in Sections III. B. 2.and III. C. 2. respectively.

C. Purpose, Scope, and Applicability(§ 268.1)

The Agency is proposing to modify§ 268.1 only to include the "softhammer" wastes in the applicability ofthe land disposal restrictions, and toallow the disposal of such wastes inlandfill and surface impoundment unitsmeeting the minimum technologicalrequirements provided such wastes arethe subject of a valid certification under§ 268.8.

D. Treatment in Surface ImpoundmentExemption (§ 268.4)

The proposed modifications to therequirements of § 268.4 reflect thespecial conditions for allowing thisexemption to apply to First Third wastesfor which no treatment standards havebeen established. Certainnonsubstantive modifications have alsobeen proposed to improve thereadability of the section. Theconditions relating to the disposal of"soft hammer" wastes are discussed inSection III. C. 3.

E. Case-by-Case Extensions (§ 268.5)

The modification to § 268.5 reflectsthe Agency's new interpretation ofRCRA section 3004(h)(4), that wastessubject to a case-by-case extension ofthe effective date, if disposed in alandfill or surface impoundment, mustbe disposed in a unit that meets theminimum technological requirements.EPA's earlier interpretation was thatCongress intended such wastes to bedisposed in a facility that meets theminimum technological requirements.The discussion for this proposed changeis found in Section III. D.

F. "No Migration" Petitions (§ 268.6)

As discussed in Section III. H., theAgency is proposing modifications to theexisting requirements for petitioningEPA for a "no migration" exemptionunder § 268.6.

G. Testing and Recordkeeping (§ 268.7)

The proposed modifications to § 268.7extend the notification and certificationrequirements to include the First Thirdwastes. EPA is also proposing to applythe recordkeeping requirements of thissection to treatment and storage

11777




facilities not already included in the"cradle-to-grave" paper trail, includingan additional change addresging wastesthat may be land disposed under anextension, exemption, or variance. Also,a new notification is proposed for "softhammer" wastes. The discussion forthese proposed modifications is found inSection III. B.

Testing requirements for wastes in§ 268.43 (i.e., wastes for which thetreatment standards are expressed asconcentration levels in the waste, ratherthan in the waste extract) have beenproposed. And finally, othernonsubstantive modifications are beingproposed to improve the readability ofthis section.

H. Landfill and Surface ImpoundmentDisposal Restrictions (§ 268.8)

The Agency is proposing a new§ 268.8 which addresses the prohibitionon disposal of First Third wastes forwhich treatment standards have notbeen established. An extensivediscussion in Section III. C. presents theAgency's interpretation of RCRA section3004(g}(6)(A), which is applicable to thedisposal of such wastes in landfills andsurface impoundments, and alsoproposes EPA's approach to the type ofinformation which must be supplied andcertified to prior to such disposal.

I. Waste Specific Prohibitions-FirstThird Wastes (§ 268.33)

Section 268.33 proposes the actualprohibitions on the land disposal of FirstThird wastes (wastes listed in § 268.10)for which EPA has proposed treatmentstandards, and also proposes effectivedates based on the availability ofcapacity to treat these wastes. SectionIII. A. describes the development ofthese proposed treatment standards,and Section HI. J. presents the capacitydata and assumptions on which theproposed effective dates are based.Section 268.33(e) proposes theprohibitions placed on "soft hammer"wastes, as discussed in Section III. C.

It should be noted that the schedulefor waste K019 (a Second Third wastelisted in § 268.11] has been acceleratedto include this waste in the First Third.K100 (a Third Third waste listed in§ 268.12) is also included in the FirstThird.J. Treatment Standards (§ 268.40,§ 268.41, and § 268.43)

Proposed treatment standards,expressed as concentration levels inboth the waste (§ 268.43, as expressed ina new Table CCW) and in a wasteextract developed by using the TCLP,are presented in proposed amendments

to Subpart D. The treatment standardsare discussed in Section III. A.

K. Storage Prohibition (§ 268.50)

Only a slight modification to theexisting storage prohibition in § 268.50 isproposed to account for the Agency'sinterpretation of RCRA section 3004(j),as applicable to "soft hammer" wasteswhich are the subject of a certificationunder § 268.8. This interpretation ispresented in Section I1. G. of this notice.

V. State Authority

A. Applicability of Rules in AuthorizedStates

Under section 3006 of RCRA, EPA .may authorize qualified States toadminister and enforce the RCRAprogram within the State. Followingauthorization, EPA retains enforcementauthority under sections 3008, 3013, and7003 of RCRA, although authorizedStates have primary enforcementresponsibility. The standards andrequirements for authorization are foundin 40 CFR Part 271.

Prior to HSWA, a State with finalauthorization administered itshazardous waste program in lieu of EPAadministering the Federal program inthat State. The Federal requirements nolonger applied in the authorized State,and EPA could not issue permits for anyfacilities that the State was authorizedto permit. When new, more stringentFederal requirements were promulgatedor enacted, the State was obliged toenact equivalent authority withinspecified time frames. New Federalrequirements did not take effect in anauthorized State until the State adoptedthe requirements as State law.

In contrast, under RCRA section3006(g) (42 U.S.C. 6926(g)), newrequirements and prohibitions imposedby HSWA take effect in a.thorizedStates at the same time that they takeeffect in nonauthorized States. EPA isdirected to carry out these requirementsand prohibitions in authorized States, -including the issuance of permits, untilthe State is granted authorization to doso. While States must still adoptHSWA-related provisions as State lawto retain final authorization, HSWAapplies in authorized States in theinterim.

Today's rule is proposed pursuant tosections 3004(d) through (k), and (in), ofRCRA (42 U.S.C. 6924). Therefore, it willbe added to Table 1 in 40 CFR 271.1(j),which identifies the Federal programrequirements that are promulgatedpursuant to HSWA and take effect in allStates, regardless of their authorizationstatus. States may apply for eitherinterim or final authorization for the

HSWA provisions in Table 1, asdiscussed in the following section.When this rule is promulgated, Table 2in 40 CFR 271.1(j) will be modified alsoto indicate that this rule is a self-implementing provision of HSWA.

B. Effects on State Authorizations

As noted above, EPA will implementtoday's proposal in authorized Statesuntil their programs are modified toadopt these rules and the modification isapproved by EPA. Because the rule ispromulgated pursuant to HSWA, a Statesubmitting a program modification mayapply to receive either interim or finalauthorization under RCRA section3006(g)(2) or 3006(b), respectively, on thebasis of requirements that aresubstantially equivalent or equivalent toEPA's. The procedures and schedule forState program modifications for eitherinterim or final authorization aredescribed in 40 CFR 271.21. It should benoted that HSWA interim authorizationwill expire on January 1, 1993 (see 40CFR 271.24(c)).

Section 271.21(e)(2) requires thatStates that have final authorization mustmodify their programs to reflect Federalprogram changes, and mustsubsequently submit the modification toEPA for approval. The deadline for theState to modify its program for thisproposed regulation will be determinedby the date on which this regulation ispromulgated in final form. Since finalrule promulgation will be after July 1,1987, State program modifications mustbe made by July 1, 1991, if onlyregulatory changes are necessary or July1, 1992, if statutory changes arenecessary. These deadlines can beextended in exceptional cases (see§ 271.21(e)(3)).

States with authorized RCRA.programs may have requirementssimilar to those in today's proposal.These State regulations have not beenassessed against the Federal regulationsbeing proposed today to determinewhether they meet the tests forauthorization. Thus, a State is notauthorized to implement theserequirements in lieu of EPA until theState program modification is approved.Of course, States with existingstandards may continue to administerand enforce their standards as a matterof State law. In Implementing theFederal program, EPA will work withStates under agreements to minimizeduplication of efforts. In many cases,EPA will be able to defer to the States intheir efforts to implement their programsrather than take separate actions underFederal authority.

11778




States that submit official applicationsfor final authorization less than 12months after the effective date of theseregulations may be approved withoutincluding equivalent standards.However, once authorized, a State mustmodify its program to include standardssubstantially equivalent or equivalent toEPA's within the time periods discussedabove.

The amendments being proposedtoday need not effect the State'sUnderground Injection Control (UIC)primacy status. A State currentlyauthorized to administer the UICprogram under the Safe Drinking WaterAct (SDWA) could continue to do sowithout seeking authority to administerthese amendments. However, a Statewhich wished to implement Part 148 andreceive authorization to grantexemptions from land disposal wouldhave to demonstrate that it had therequisite authority to administersections 3004 (f) and (g) of RCRA. Theconditions under which such anauthorization may take place aresummarized above, and are discussed in50 FR 28728, et seq., July 15, 1985.

C. State ImplementationThere are three unique aspects of

today's proposal which affect Stateimplementation and impact Stateactions on the regulated community:

1. Under Part 268, Subpart C, EPA isproposing land disposal restrictions forall generators and disposers of certaintypes of hazardous waste. In order toretain authorization, States must adoptthe regulations under this Subpart sinceState requirements can be no lessstringent than Federal requirements.

2. Also under Part 268, EPA may granta national variance from the effectivedate of land disposal prohibitions for upto two years if it is found that there isinsufficient alternative treatmentcapacity. Under § 268.5, case-by-caseextensions of up to one year (renewablefor one additional year) may be grantedfor specific applicants lacking adequatecapacity.

The Administrator of EPA is solelyresponsible for granting variances to theeffective date because thesedeterminations must be made on anational basis. In addition, it is clearthat RCRA section 3004(h)(3) intends forthe Administrator to grant case-by-caseextensions after consulting the affectedStates, on the basis of national concernswhich only the Administrator canevaluate. Therefore, States cannot beauthorized for this aspect of theprogram.

3. Under § 268.44, the Agency maygrant a waste-specific variance from atreatment standard in cases where it

can be demonstrated that the physicalor chemical properties of the wastediffer significantly from wastesanalyzed in developing the treatmentstandard, and, the waste cannot betreated to specified levels or treated byspecified methods.

The Agency is solely responsible forgranting such variances since the resultof such an action will be theestablishment of a new wastetreatability group. All wastes meetingthe criteria of this new wastetreatability group will also, be subject tothe variance, and thus, granting such avariance has national impacts.Therefore, this aspect of the program isnot delegated to the States.

4. Under § 268.6, EPA may grantpetitions of specific duration to allowland disposal of certain hazardouswaste where it can be demonstratedthat there will be no migration ofhazardous constituents for as long asthe waste remains hazardous.

States which have the authority toimpose bans may be authorized underRCRA section 3006 to grant petitions forexemptions from bans. Decisions onsite-specific petitions do not require thenational perspective required to banwaste or grant extensions. However, theAgency expects few "no migration"petitions and so will be handling them atHeadquarters, though the States may beauthorized to grant these petitions in thefuture. The Agency expects to gainvaluable experience and informationfrom review of "no migration" petitionswhich may affect future land disposalrestrictions rulemakings. In accordancewith RCRA section 3004(i), EPA willpublish notice of the State's finaldecision on petitions in the FederalRegister.

States are free to impose their owndisposal bans if such actions are morestringent or broader in scope thanFederal programs (RCRA section 3009and 40 CFR 271.1(i]). Where Statesimpose such prohibitions, the broaderand more stringent State ban governs.

VI. Effects of the Land DisposalRestrictions Program on OtherEnvironmental Programs

A. Discharges Regulated Under theClean Water Act

As a result of the land disposalrestrictions program, the regulatedcommunity might switch from treatment(BDAT) and land disposal for somerestricted First Third wastes todischarge to publicly owned treatmentworks (POTWs); this switch would bebased on waste management costs andtreatment availability after the landdisposal restrictions took effect. In

shifting from treatment and landdisposal to discharge to POTWs, anincrease in human and environmentalrisks could occur. Also as a result of theland disposal restrictions, hazardouswaste generators could illegallydischarge their wastes to surface waterwithout treatment, which could causedamage to the local ecosystem.

Some generators might treat theirwastes prior to discharging to a POTW,but the treatment step itself couldincrease risks to the environment. Forexample, if incineration were thepretreatment step, metals and otherhazardous constituents present in airscrubber waters could be discharged tosurface water. However, the amount ofFirst Third waste shifted to POTWswould be limited by such factors as thephysical form of the waste, the degree ofpretreatment required prior to discharge,and State and local regulations.

B. Discharges Regulated Under theMarine Protection, Research, andSanctuariesAct (MPRSA)

Management of some First Thirdwastes could be shifted from treatment(BDAT) and land disposal to oceandumping and ocean-based incineration.If the cost of ocean-based disposal plustransportation were lower than the costof land-based treatment, disposal, andtransportation, this option could becomean attractive alternative. In addition,ocean-based disposal could becomeattractive to the regulated community ifland-based treatment capacity were notavailable.

An increase in ocean-based disposalcould lead to an increase in risk to themarine environment. For example,ocean dumping of toxic hazardouswastes could cause increased risks forsensitive marine organisms. Stackemissions from ocean-basedincinerators might contain metals andpersistent organic chemicals that couldbe deposited in the ocean and havepotentially toxic effects on marine life.In addition, accidental spills andreleases in the ocean could have severeeffects on coastal and marine resources.

Management of restricted First Thirdwastes could not be automaticallyshifted to ocean dumping and ocean-based incineration based on costs alone.Both technologies require permits, whichcould be issued only if technicalrequirements (e.g., physical form andheating value) and MPRSAenvironmental criteria (e.g., constituentconcentrations,, toxicity, solubility,density, and persistence) were met.MPRSA requires that nine specificfactors, including the availability andimpacts of land-based disposal

v F

11779




alternatives, be considered beforepermits can be issued for oceandisposal.

C. Air Emissions Regulated Under theClean Air Act

Some treatment technologiesapplicable to First Third wastes couldresult in cross-media transfer ofhazardous constituents to air. Forexample, incineration of metal-bearingwastes could result in metal emissionsto air. Some constituents, such aschromium, can be more toxic if inhaledthan if ingested. As a result, it might benecessary to issue regulatory controlsfor some technologies to ensure they areoperated properly.

The Agency has taken several steps toaddress this issue. EPA has initiated aprogram to address metal emissionsfrom incinerators. It has also initiatedtwo programs under section 3004(n) toaddress air emissions from othersources. The first program will addressfugitive emissions from equipment suchas pumps, valves, and vents from unitsprocessing concentrated organic wastestreams. The second program willaddress other sources of air emissions,such as tanks and waste transfer andhandling.VII. Regulatory Analyses

A. Regulatory Impact Analysis

1. PurposeThe Agency estimated the costs,

benefits, and economic impacts oftoday's proposed rule. These analysesare required for "major" regulations asdefined by Executive Order No. 12291.The Agency is also required under theRegulatory Flexibility Act to assesssmall business impacts resulting fromthe proposed rule. The cost andeconomic impact analyses serve,additionally, as a measure of thepractical capability of facilities tocomply with the proposed rule.

The results indicate that today's ruleis a major rule. This section of thepreamble discusses the results of theanalyses of the proposed rule asdetailed in the draft Regulatory ImpactAnalysis (RIA) for the proposed rule.The draft RIA is available in the publicdocket for this proposal.

The analyses presented in this sectionand in the draft RIA do not fully reflectthe current status of the proposed rule.Certain wastes were included in theRIA, but, due to the additional timerequired to set treatment standards forthe wastes, were not part of theproposed rule. Treatment standardswere set in the proposed rule for otherwastes which did not appear in thedatabase used for the RIA. In addition,

for a few wastes, the treatmentstandards presented in the proposedrule differ, in varying degrees, fromthose assumed initially in the RIA.These discrepancies will be addressedin the RIA for a subsequent First Thirdproposed rule.

2. Executive Order No. 12291Executive Order No. 12291 requires

EPA to assess the effect of proposedAgency actions and alternatives duringthe development regulations. Such anassessment consists of a quantificationof the potential benefits and costs of therule, as well as a description of anybeneficial or adverse effects that cannotbe quantified in monetary terms. Inaddition, Executive Order No. 12291requires that regulatory agenciesprepare a Regulatory Impact Analysis(RIA) for major rules. Major rules aredefined as those likely to result in:

* An annual cost to the economy of$100 million or more; or

* A major increase in costs or pricesfor consumers or individual industries;or

• Significant adverse effects oncompetition, employment, investment,innovation, or international trade.

The Agency has prepared an RIAwhich compares the proposed rule witha regulatory alternative, as discussed inthe following sections. Based on thisanalysis, the Agency has concluded thatthis proposed regulation is a major rulewith an annual cost to the economyranging from $681-696 million per year.3. Basic Approach/RegulatoryAlternatives

EPA is proposing to set treatmentstandards for a subset of the First ThirdK wastes and to let "soft hammers" fallon all First Third P and U wastes. Asindicated earlier in the preamble, theAgency will continue to analyzetreatment data for additional First ThirdF and K wastes and will publish asupplemental proposal. When theproposal is published, the impacts ofmeeting the land disposal restrictionsrequirements for these wastes will beidentified.

The "soft hammers" place restrictionson the land disposal of First Thirdwastes for which no treatmentstandards have been set by August 8,1988. The "soft hammer" provisionswould be in effect until "hard hammers"fell (on May 8, 1990) or for an evenshorter period if treatment standards orextensions of the effective date werepromulgated. The effect of "hardhammers" falling on wastes and ofextensions of the effective date were notexamined as part of this analysis. The"soft hammers", as well as the proposed

rule as a whole, are discussed in greaterdetail in Section III of this preamble.

EPA estimated the costs, benefits, andpotential economic impacts of theproposed rule and of a major regulatoryalternative to it. However, only theimpacts of the proposed rule arepresented here. Results for theregulatory alternative are discussed inthe RIA.

Provisions of the proposed rule, asanalyzed in the RIA, are as follows:Proposed Rule:

" Treatment standards areestablished for 30 F and K wastes,and

" "Soft hammers" are allowed to fallon P and U wastes.

The costs and benefits of two "softhammer" scenarios were examined:Scenario 1:

@ "Soft hammers" fall on P and Uwastes and treatment capacity isassumed not to exist;

• Therefore, P and U wastes maycontinue to be land disposed inunits meeting minimumtechnological requirements.

Scenario 2:• "Soft hammers" fall on P and U

wastes and treatment capacity isassumed to exist;

" Therefore, P and U wastes mustmeet "approximate treatmentstandards" (treatment that willreduce the mobility and toxicity ofhazardous consituents).

It was assumed that the "soft hammers"would apply to wastes disposed of inlandfills, surface impoundments, wastepiles, and land farms. While neitherscenario corresponds exactly to theproposed rule, it was assumed that thetwo scenarios would establish upperand lower bounds on the effects of theproposed rule. The scenarios were alsoused to explore some of the implicationsof varying "soft hammer" requirements.

The effects of the proposed rule (with"soft hammer" scenarios) wereestimated by comparison of post-regulatory costs, benefits, and economicimpacts with those resulting underbaseline conditions. The baseline iscontinued land disposal of wastes inunits meeting minimum technologicalrequirements.

4. Methodology

a. Determination of AffectedPopulation and Waste ManagementPractices. The first step in determiningthe populations of affected wastes andfacilities was to characterize wastestreams based on availablecharacterization reports andprofessional judgment. (See Section Dfor references.) This characterization

11780




data was matched with information onwaste quantities and managementpractices from the 1981 RIA Mail Surveyand the 1984 Small Quantity GeneratorSurvey to determine the waste streamsand facilities potentially affected by theproposed rule. Waste quantities andnumbers of facilities from each surveywere scaled up, by means of weightingfactors, to represent the nationalpopulation of wastes and facilities.

Next, it was necessary to adjust theaffected waste and facility populationsby considering the cost of compliancewith regulations which have taken effectsince the 1981 RIA Mail Survey wasconducted. In particular, EPA adjustedreported waste management practices toreflect compliance with the provisions of40 CFR Part 264, which apply topermitted treatment, storage, anddisposal facilities. In making thisadjustment, the Agency assumed thefacilities would elect the least costlymethods of compliance.

This adjustment defines not onlybaseline management practices andcosts associated with them, but also thenumber of facilities and waste streamsin the affected population. For example,for some facilities, the costs of landdisposing of certain wastes may havebeen driven so high by the minimumtechnological requirements that othermanagement modes became lessexpensive. EPA assumes that thesefacilities no longer land dispose of thesewastes and that these wastes are nolonger part of the population of wastestreams that may be affected by anyrestrictions on land disposal.

Finally, it was necessary to considerthe overlap between First Third wastesand California list, solvent, and dioxinwastes. A number of First Third wastesare California list wastes, and a fevVFirst Third mixed wastes containsolvents and dioxins. To isolate theimpacts of this proposed rule, it wasnecessary to "net out" the costs,economic impacts, and benefitsstemming from treatment standardsestablished under other rules; in somecases this resulted in waste streams andfacilities being dropped from theaffected population for this rule.

The logic used to net out overlappingcosts, economic impacts, and benefits isillustrated for First Third wastes whichare also California list wastes:

If: Then:

The First Thirdtreatment for thewaste tream is thesame as theCarforia listtreatment

Drop the waste streamfrom the analysis (sincethere would be no incre-mental impacts due tothe First Third proposedrule).

If: Then:

The First Third Include the waste in thetreatment adds one analysis; estimate theor more steps to the Incremental costs; eco-California list nomic impacts, and ben-treatment efits due to the added

treatment step(s).The First Third Include the waste in the

treatment differs analysis; estimate thesubstantially from the incremental costs, eco-California list nomic impacts, and ben-treatment. efits due to the new

treatment.

The population of wastes whichwould be affected by the proposed rulemay include some wastes from CERCLAresponses or RCRA corrective actions.However, there are insufficient data atpresent to estimate these quantities.Underground injected wastes wereexcluded from this analysis; thesewastes will be dealt with in the RIA fora separate rule.

The population of affected facilitiesincludes:

* Commercial hazardous wastetreatment, storage, and disposalfacilities (commercial TSDFs), whichcharge a fee for hazardous wastedisposal;

e Non-commercial TSDFs, whichprovide disposal services for wastesgenerated on-site or off-site by theirparent firms;

e generators, which send their wasteoff-site to commercial TSDFs fordisposal; and

* small quantity generators (SOGs),which send their waste off-site tocommercial TSDF.

b. Cost Methodology. Once wastequantity, type and method of treatmentwere known for the affected population,EPA developed estimates of costs ofcompliance for individual facilities. Theanalysis detailed in this section is basedon cost estimates for surveyed facilitiesrepresenting the affected population.EPA estimated baseline and compliancewaste management costs usingengineering judgment. Wastes amenableto similar types of treatment weregrouped to identify economies of scaleavailable through co-treatment anddisposal.

Facilities face several possible optionsif they may no longer land dispose oftheir wastes. EPA applied the samerationale in predicting facility choiceamong these options as it did inestablishing the affected population:facilities were assumed to elect the leastcostly method of complying with therequiremeuts uf this rule. Costs ofcompliance were derived by predictingthe minimum-cost method of compliancewith land disposal restrictions for eachfacility and calculating the increment

between that and baseline disposalcosts. As in the analysis of baselinecosts, economies of scale in wastemanagement were considered. Shippingcosts for wastes sent off-site formanagement were also considered.

EPA developed facility-specificcompliance costs in two components,which were weighted and then summedto estimate total national costs of therule. The first component of the totalcompliance cost is incurred annually foroperation and maintenance {O&M) ofalternative modes of waste treatmentand disposal. The second component ofthe compliance cost is a capital cost,which is an initial outlay incurred forconstruction and depreciable assets.Capital costs were restated as annualvalues by using a capital recovery factorbased on a nominal interest rate of 9percent. These annualized capital costswere then added to yearly O&M costs toderive an annual compliance cost.

c. Economic Impact Methodology. (1)Non-Commercial TSDFs and SQGs. EPAassessed economic impacts on non-commercial TSDFs and SQGs in severalsteps. First, the Agency employed ageneral screening analysis. to comparefacility-specific incremental costs tofinancial information about firms,disaggregated by Standard IndustrialClassification (SIC) and number ofemployees per facility. (See Section Dfor references.) This comparison wasbased on two ratios, which were used toidentify facilities likely to experienceadverse economic effects. The first is aratio of individual facility compliancecosts to costs of production. This ratiorepresents the percent product priceincrease for facility output that occurs ifthe entire compliance cost-accompanied by facility profit-ispassed through to customers in the formof higher prices. A change exceedingfive percent is considered to imply asubstantial adverse economic effect on afacility. The second is a coverage ratiocash from operations to costs ofcompliance. This ratio represents thenumber of times that facility grossmargin covers the regulatory compliancecost if the facility fully absorbs the cost.For this ratio, a value of less than 20 isconsidered to represent a significantadverse effect. The coverage ratio is themore stringent of the two ratios, butexceeding the critical level in either onesuggests that a facility is likely to besignificantly affected. These ratiosbound possible effects on individualfirms. This analysis considers only pre-tax costs, because Census data arestated in pre-tax terms.

Once facilities experiencing adverseeconomic effects Were identified using

11781




the two screening ratios, a more detailedfinancial analysis was performed toverify the results and to focus moreclosely on affected facilities. For thissubset of facilities, the coverage ratiowas adjusted by allowing a portion ofcosts to be passed through. Economiceffects on individual facilities wereexamined assuming that product priceincreases of one and five percent werepossible. Those facilities for which thecoverage ratio was less than two wereconsidered likely to close.

(2) Commercial TSDFs. For this groupof facilities, there exists no Census SICfrom which to draw financialinformation. Two SICs which might beused as proxies, 4953 and 4959, do notdistinguish between financial data forhazardous waste treatment firms and forfirms managing municipal and solidwastes. Consequently, the analysis ofeconomic effects on commercialfacilities was qualitative. This analysisincluded an examination of the quantityof waste each facility received from thewaste group restricted by today's rule.EPA also examined the ability of eachfacility to provide the additionaltreatment required once theserestrictions were promulgated, and thusto retain or expand that portion of itsbusiness generated by restricted wastes.

(3) Generators. EPA's analysis of theeconomic effects of this rule ongenerators disposing of large quantitiesof affected wastes off-site assumed thatcommercial facilities could entirely passon to them the costs of compliance withthis regulation in the form of higherprices for waste management services,Because of data limitations in the RIAMail Survey, EPA did not develop plant-specific waste characterization,treatment methods, and compliancecosts for generators, as it did for TSDFs.The analysis of the economic effects oftoday's proposed rule on this group usedRIA Mail Survey data to develop modelplants generating average wastequantities. This allowed EPA to assesspossible effects on generating plants.

d. Benefits Methodology. The benefitsof today's proposed rule were evaluatedby considering the reduction in humanhealth risk that results from usingalternative treatment for First Thirdwastes rather than employing baselinemanagement practices. Human healthrisk is defined herein as the probabilityof injury, disease, or death over a giventime (70 years) due to responses todoses of disease causing agents. Due totime and budget constraints, risk resultswere obtained for only selected,potentially high-risk waste streams,which were selected based on previousanalyses and professional judgment.

The human health risk posed by awaste management practice is afunction of the toxicity of the chemicalconstituents in the waste stream and theextent of human exposure to theconstituents. The likelihood of exposureis dictated by hydrogeologic andclimatic settings at land disposal unitsand the fate and transport of chemicalconstituents in environmental media.

EPA estimated human health risk infour steps. The first step was to estimatethe concentrations of each of thehazardous constituents of the wastestream in each of the three media (air,surface water, ground water) into whichthey might be released by a certainwaste management technology. Theseestimates depend on the steady-state(i.e., continuous) release rates calculatedfor each technology, and onenvironmental fate and transportcharacteristics for constituents.

The next step was to estimate thetotal human intake, or dose, of each ofthe chemicals through inhalation of airand ingestion of ground water, surfacewater, and contaminated fish. A 65kilogram person was assumed to becontinuously exposed to contaminatedmedia over a 70-year lifetime.

The Agency next calculated the risk toan individual from the dose derived inthe previous step. EPA estimated therelationship of dose to effect (using a"dose-response" curve developed basedon toxicity data) and weighted the effectaccording to severity.

Finally, EPA estimated the populationrisk by multiplying the averageindividual risk by the number of peoplein a given environment. The wholeprocess described above was repeated2,000 times, using different populationsizes and environmental settings drawnfrom representative distributions, togenerate a population risk distributionfor each waste-technology combination.The mean of the distribution for thebaseline disposal technology wascompared with the mean of thedistribution for an alternative treatmenttechnology to derive the net benefit ofthe land disposal restrictions for thatwaste stream. Risks were notdiscounted.

Benefits other than reduction inhuman health risk-such as resourcedamage avoided and corrective actioncosts avoided-were not quantified. Asa result, the benefits of the land disposalrestrictions for First Third wastes arelikely to be understated. (Other benefitsmeasures will be addressed in RIAs forsubsequent rules.)

5. Resultsa. Affected Population. The number of

affected facilities is shown in Table 1.

TABLE 1.-NUMBER OF AFFECTEDFACILITIES

Proposed rule

Scenario 1 Scenario 2

Commercial TSDFs 84 84Non-Commercial

TSDFs ......................... 260 253Generators ....................... 2,47 2,443SOGs ................................ 1,320 1,320

Total ............................. 4,111 4,100

b. Costs. The costs of the proposedrule are summarized in Table 2.

TABLE 2.-COSTS OF THE PROPOSEDRULE (ANNUALIZED INCREMENTAL COSTIN MILLIONS OF 1987 DOLLARS)

Proposed rule


Treatment of F and KWastes ......................... 681 681

Soft Hammers on Pand U Wastes .............. 0 15

Total ...... .................. 681 696

As shown, the proposed rule is amajor rule, with costs of $681-696million per year. Nearly all of the costsof the proposed rule are due to thetreatment of F and K wastes. The F andK wastes are high-volume wastes; largeportions of the wastes go to incineration,high temperature metals recovery, andstabilization under the proposed rule.The residuals from the wastes which areincinerated often require solidificationdue to the metal content of the ash.

The P and U wastes, on the otherhand, are generated in relatively smallquantities. Their management under theproposed rule depends on whichscenario is considered. Under Scenario1, the wastes continue to be landdisposed in units meeting minimumtechnological requirements. UnderScenario 2, the wastes are mostlyincinerated; however, since the P and Uwastes are primarily organic with littlemetal content, the ash from incinerationgenerally does not require solidification.

Under the proposed rule, the two "softhammer" scenarios result in relativelylittle difference in cost. Scenario 1-continued land disposal of P and Uwastes-results in zero incremental costover the baseline. Scenario 2-treatmentof P and U wastes under "approximatetreatment standards"-results in lowcosts due to the small volume of wastegoing to treatment. The costs associatedwith "soft hammers" would be incurredfor less than two years, i.e., until "hardhammers" fell, treatment standards

11782




were established, or extensions to theeffective date were granted. Since P andU wastes result from spills or are off-spec chemical products, the assumptionthat quantities reported in EPA'ssurveys represent annual values mayoverstate the costs if production occurssporadically.

Large volumes of wastes stored insurface impoundments dropped out ofthe analysis because storage in tankswas found to be less expensive thanstorage in surface impoundments in thebaseline. As a result, the costs of therule associated with treatment ofresiduals from storage surfaceimpoundments were quite small. Largevolumes of wastes treated in surfaceimpoundments remained in the analysis.However, the small quantity of dredgedmaterial from these impoundmentsrequiring treatment caused these coststo be low as well.

Most of the costs of the rule are borneby generators and noncommercialTSDFs; generators account forapproximately three quarters ofcompliance costs and non-commercialTSDFs for approximately a quarter.SQGs account for less than one percentof total compliance costs.

c. Economic Impacts. The economicimpacts of the proposed rule aresummarized in Table 3.

TABLE 3.-NUMBER OF SIGNIFICANTLYIMPACTED FACILITIES

Proposed rule


Commercial TSDFs (1) (1)Non-Commercial

TSDFs .......................... 68 72Generators ....................... 1.040 1,049SOGs ............................... 441 673

Total ............................ 1,549 1,794

I Commercial TSDFs were assumed to pass allcompliance costs through to generators; therefore,the number of significantly affected facilities was notcalculated.

Most of the significantly impactednon-commercial TSDFs are from thepetroleum refining and primary metalsindustries (SICs 29 and 33, respectively).Significantly impacted generators aremostly from Primary Metals andFabric ated Metals (SICs 33 and 34,respectively). Commercial TSDFs fallprimarily into Electric, Gas, andSanitary Services (SIC 49); thosefacilities specializing in land disposalservices could be adversely affected.The most significant difference betweenScenarios I and 2 is in the number ofsignificantly affected SQGs. Asdiscussed above, impacts due to "soft

hammer" provisions would be of lessthan two years duration.

d. Benefits. Table 4 summarizes theestimated benefits of the proposed rule.The annual values were obtained bydividing the total benefit estimates(corresponding to a 70 year lifetime) by70.

TABLE 4.-BENEFITS OF THE PROPOSEDRULE (NUMBER OF ADVERSE HEALTHEFFECTS AVOIDED PER YEAR)

Proposed rule


Treatment of F andK Wastes .................. 130 130

Soft Hammers on Pand U Wastes .......... 0 78

Total ............................. 130 208

The results above are driven primarilyby two waste codes; K061 and P070.K061 is emission control dust/sludgefrom the primary production of steel inelectric furnaces; it contains a number ofmetals. It is mostly landfilled in thebaseline and goes'to high temperaturemetals recovery under the proposedrule. P070 is Aldicarb, a pesticide whichis land applied in the baseline andincinerated under the proposed rule.

As shown, there is a substantialdifference in benefits between Scenarios1 and 2 under the proposed rule dueprimarily to the management of P070.Most of the risk associated with landapplication in the baseline is due toexposure via air. It is likely, in actualpractice, that air exposures would bereduced through the use of protectivegear by persons involved in landapplication and the restriction of accessby other persons to the site; thereforethe difference in benefits between thetwo scenarios may be overstated. Thedifference may also be overstated to theextent that the P and U wastes aregenerated sporadically, rather thanannually as reported in the RIA MailSurvey. The benefits under Scenario 2would be of less than two yearsduration; i.e., they would continue until"hard hammers" fell, treatmentstandards were set, or extensions to theeffective date were granted.

e. Cost Effectiveness. The costeffectiveness of the proposed rule isillustrated in Table 5. Compliance costsfor the regulated community and humanhealth risk reduction are the basis forthe comparison; other potentiallysignificant costs (e.g., Agencyimplementation costs) and benefits (e.g.,natural resource damage avoided) werenot estimated.

TABLE 5-COST EFFECTIVENESS OFPROPOSED RULE.

Proposed rule


Costs (Millions of1987 Dollars peryear ............................. 681 696

Benefits (AdverseHealth EffectsAvoided per Year) ..... 130 208

Cost Effectiveness(Millions of Dollarsper Case Avoided) 5.2 3.3

B. Regulatory Flexibility Act

Pursuant to the Regulatory FlexibiltyAct, 5 U.S.C. 601 et seq., whenever anagency is required to publish a notice ofrulemaking for any proposed or finalrule, it must prepare and make availablefor public comment a regulatoryflexibility analysis that describes theeffect of the rule on small entities (i.e.,small businesses, small organizations,and small governmental jurisdictions).This analysis is unnecessary, however,if the Agency's administrator certifiesthat the rule will not have a significanteconomic effect on a substantial numberof small entities.

EPA evaluated the economic effect ofthe rule on small entities, here definedas concerns employing fewer than 50people. Because of data limitations, thissmall business analysis excludedgenerators of large quantities of FirstThird wastes. The small businesspopulation therefore included only twogroups: All non-commercial treatment,storage and disposal facilities employingfewer than 50 persons, and all smallquantity generators which were alsosmall businesses.

According to EPA's guidelines forconducting Regulatory FlexibilityAnalysis, if over 20% of the populationof small businesses is likley toexperience financial distress based onthe costs of a rule, then the Agency isrequired to consider that the rule willhave a significant effect on a substantialnumber of small entities and to performa formal Regulatory Flexibility Analysis.EPA has examined the rule's potentialeffects on small businesses as requiredby the Regulatory Flexibility Act andhas concluded that today's final rulewill not have a significant economiceffect on a substantial number of smallentities. As a result of this finding, EPAhas not prepared a formal RegulatoryFlexibility Analysis document in supportof this rule. More .detailed informationon small business impacts is available

11783



Federal Register / Vol. 53, No. 68 / Friday, April 8, 1988 /' Proposed Rules

in technical background documentsprepared in support of this rulemaking.

C. Paperwork Reduction Act

The information collectionrequirements in this proposed rule-havebeen submitted for approval to theOffice of Management and Budget(OMB) under the Paperwork ReductionAct, 44 U.S.C. 3501 et seq. AnInformation Collection Request-document has been prepared by EPA(ICR No. 1436) and a copy may beobtained from Rick Westlund,Information Policy Branch; EPA; 401 MStreet SW. (RM-223); Washington, DC20460 or by calling (202) 382-2745.Submit comments on these requirementsto EPA and: Office of Information andRegulatory Affairs: OMB; 726 JacksonPlace NW.; Washington DC 20503marked "Attention: Desk Officer forEPA." The final rule will respond to anyOMB or public comments in theinformation collection requirements.

D. Review of Supporting Documents

The primary source of information oncurrent land disposal practices andindustries affected by this rule WasEPA's "National Survey of HazardousWaste Generators and Treatment,Storage and Disposal FacilitiesRegulated Under RCRA in 1981" (RIAMail Survey) (April 1984). EPA's"National Small Quantity HazardousWaste Generator Survey" (February1985) was the major source of data onsmall quantity generators.

Waste stream characterization dataand engineering costs of wastemanagement were based on thefollowing EPA documents:

o "Characterization of Waste StreamsListed in 40 CFR Section 261 WasteProfiles," Vols. I and II (August 1985);

o "Characterization of Constituentsfrom Selected Waste Streams Listed in40 CFR Section 261," Vols. I and II(August 1985];

o RCRA Background and ListingDocuments for 40 CFR Section 261;

o RCRA Section 3007 IndustryStudies;

o "RCRA Risk-Cost Analysis Model,Appendix A: Waste Stream Data Base"(March 1984); and

o Source Assessment Documents forvarious industries.

For financial and value of shipmentinformation for the general screeninganalysis, 1982 Census data were used,adjusted by 1984 Annual Survey ofManufacturers data. Producer price.indices were also used to restate 1984dollars in 1987 terms.

VIII. Implementation of the Part 268Land Disposal Restrictions Program

As a result of the regulations beingproposed under Part 268, several optionswill' be available to the generator orowner or operator of a treatment,storage, and disposal facility for themanagement of restricted hazardouswastes. This section helps'the regulatedcommunity determine the appropriatewaste management procedures. Itprovides references to the applicable 40CFR Parts 264 and 265 requirements aswell as Part 268 requirements forimplementation of the various wastemanagement options.

All the sequences in the generator'sdecision-making process mustcommence with a determination as towhether the hazardous waste is listed inPart 268 Subpart C. If the hazardouswaste is not a restricted waste, it is notsubject to the land disposal restrictionsof Part 268. It must nevertheless bemanaged in accordance with Parts 264and 265.

The generator of a restricted wastemust determine the appropriatetreatment standards (if any) under Part268 Subpart D. The applicable treatmentstandards must be determined at thepoint of initial generation prior to anytreatment. At this time, he mustdetermine the effective date of theapplicable treatment standard. EPA hasthe authority to delay the effective datesof the Part 268 treatment standardsbased on the unavailability of adequatenational treatment capacity.Determinations as to the adequacy oftreatment capacity are based on thequantity of waste generated and theavailability of alternative treatment,recovery or disposal technologies. Forthose Wastes where EPA has determinedthat alternative capacity is adequate,the treatment standard3 take effectimmediately upon promulgation. Thegenerator must use analysis of his waste(or waste extract, when applicable) orknowledge of his waste (data supportingsuch knowledge must be kept on-site) tomake determinations as to whether hiswaste may go directly to land disposal.or first must be treated.

If the concentrations of the hazardousconstituents in the waste (or wasteextract, when applicable) are incompliance with the applicabletreatment standards, the waste may godirectly to land disposal. The gcreratormust submit a notice and certificationstatement to the land disposal facility asrequired under § 268.7. The landdisposal facility must verify the recordsof the generator in accordance with thefacility's waste analysis plan. Agenerator that operates an on-site land

disposal facility must put theinformation contained in the notice(except for the manifest number) in theoperating record of the land disposalfacility.

If the concentrations of the hazardousconstituents in the waste (or wasteextract, when applicable) exceeds thetreatment standards, placement of thewaste in land disposal units, as of theeffective date specified in Part 268Subpart C is prohibited (unless thewaste is subject to a case-by-caseextension under § 268.5, or a "nomigration" exemption under § 268.6).The generator must treat the prohibitedwaste in either an on-site or off-sitetreatment facility with interim status ora RCRA permit that is allowed to acceptthe waste.

An off-site treatment facility mustobtain a notice from the generator asrequired in § 268.7. This. notice must beplaced in the operating record.Generators that are also treatmentfacilities must keep the informationcontained in the notice (except for themanifest number) in the. facility'soperating record.

When shipping the treatment residualto an interim status or RCRA permittedland disposal facility, the treatmentfacility must certify in accordance with§ 268.7 that the treatment residue meetsthe applicable treatment standards andmust also send a notice (§ 268.7) to theland disposal facility.

If the generator's waste is a restrictedwaste listed in § 268.10 (i.e., a FirstThird waste) where treatment standardshave not been set, and such waste island disposed off-site by methods otherthan landfills or surface impoundments,the generator must provide a notice inaccordance with § 268.7. The off-sitedisposal facility is required to keep thegenerator's notice in its operatingrecord, and is responsible for ensuringthat the waste is not disposed in alandfill or surface impoundment. If thegenerator disposes on-site, theinformation contained in the notice(except for the manifest number) mustbe kept in the facility's operating record,and the generator must ensure that suchwaste is not disposed in a landfill orsurface impoundment.

If the generator's waste is a restrictedwaste listed in §'268.10, where treatmentstandards have not been set, and aredisposed in a landfill or surfaceimpoundment, such waste may only bedisposed in landfill or surfaceimpoundment units that meet theminimum technological requirements ofRCRA section 3004(o) (double liner,leachate collection system, andgroundwater monitoring}. Prior to

11784



Federal Register ./ V61. 53, :No. 08 / .Friday, April 8, L1988 ./ *Proposed Rules

disposal, the generator.must certify:inaccordance with § 268.8. Foroff-sitedisposal, the demonstration andcertification required in § 268:8, .as'wellas the notice required in § 268.7 must beprovided with:the.initial waste shipment.The §268.8 demonstration need notbeprovided again as'long as the~conditionsof the demonstration have not changed.Thereafter, only.the notice reqtiired in§ 268.7 and the certification required in§ 268.8, must be provided with eachwaste shipment. If such waste isdisposed on-site, the. demonstration. andcertification required in'§ 268:8, as ,wellas the notice. expect for.the manifestnumber).required in § 268.7.must he keptin the operating record.

If the generator's waste is a restrictedwaste listed in § 268.10 where notreatment standard.has been set, andthe waste goes.off-site for treatment, thegenerator must send a notice as.requiredin § 268.7. The treatment facility.mustkeep a copy of the notice in its operatingrecord. If treated on'site, the informationcontained.in the notice (except forthemanifest number) must be kept in thefacility's operating record. Aftertreatment, and no further treatment ispractically available.(if furthertreatment.is available, therecordkeeping requirements.that applyare thezsame as for the originaltreatment), the requirements are thesame that apply for the generator. If.thewaste is disposed in a landfill or.surfaceimpoundment (which.must meet theminimum technological requirements,see section 3004(g)(6)(A)(i)), the originalgenerator or the owner/operator maysupply the demonstration andcertification required by § 268.8. Thegenerator may supply this informationwhen the waste is sent to the .treatmentfacility, certifying that no furthertreatment is practicdlly available andtherefore, placement in-the landfill.orsurface impoundment. is'the.orilypractical.alternative.

IX. References

Background Documents

(1) U:S. EPA, "Background Document forFirst Third Wastes to-Support.40 CFR-Part268 Land Disposal Restrictions Proposed'RuleFirst-Third Wad te V.olume..Characteristics,and Required and Available TreatmentCapacity." U.S. EPA, OSW .Washington,.DC,1987.

(2 U.S. EPA. "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for First Third Waste Codes." U.S.EPA, OSW, Washington, DC, 1987.Regulatory Impact Andlysis(3) U.S. EPA. "Regdilatory Impact Analysis

of Proposed Restrictions on Land Disposal ofFirst Third .Wastes'"-U.S. EPA, 0SW,Washington, DC, 1987.

List of Subjects in 40'CFR Parts.264,265, 268, and 271

Administrative practice andprocedure, Confidential businessinformation, Environmental protection,Hazardous matefidls, Hazardousmaterials transp.ortation, Bazardouswaste, Imports,;lndian-lands,Insurance,Intergovernmental relations, Labeling,Packagingand container,Penalties,Recycling,'Reporting and recordkeepingrequirements, Security measures,zSuretybonds, Surety.measures, Wastetreatmentand disposal, .Water pollutioncontrol, Water.supply.

Dated:March28,.1988.Lee M. Thomas,Administrator.

For reasons set out-in.the preamble,:itis proposed that Chapter Lof Title 40'beamended as.f6llows:

PART 264-STANDARDS FOROWNERS AND OPERATORS OFHAZARDOUS WASTE TREATMENT,STORAGE, AND-DISPOSALFACILITIES

I.,In Part 264:l• .The authoritycitation.for Part 264 is

revised .to read asfollows:Authority:"42 U.S.C. 6905, 6912(a), 6924, and

6925.

Subpart B--General Facility Standards

2. Section 264.13.is amended byrevising paragraph {b)(7)(iii) to read.asfollows:

§ 264.13 General waste analysis.

(b) ...(7) *. .(iii) The annual removal'of'residues

which are-not delisted under,§ 260:22 ofthis chapter or which exhibit acharacteristic of hazardous waste andeither:

(A) Do not meet applicable treatmentstandards of Part268 Subpart D;.or

(B) Where no treatment standardshave been established:

(1) Such residues.do not meet.theapplicable prohibition levels in §:268.32or RCRA section.3004(d); or

(2) Suc6h residues are prohibitediromland disposal under§ 268.33(e).

SubpartE-Manifest.System,Recordkeeplng,-and.Reportlng

3Section 264.73 is amended byrevising.paragraphs .(b)(10), .(b{1-3), and(b)(14) to read as follows:

§ 264,73 Operatlng'record.

(b) * * *(10) Records of the quantities'(and

date of,placement) for each shipment.ofhazardous'wasteplaced in land disposalunits under an extension to the effectivedate of any land disposal restrictiongranted pursuant to § 268.5, a petitionpursuant to § 268.6, or a certificationunder § 268.8, and the applicable noticerequired'by a generatorunder § 268.7(a);

{13).For an off:site.land disposalfacility, a .copy of.the notice.andcertificationj{and demonstration, ifapplicable).required by the generator orthe owner oroperator of a treatmentfacility.under,§:§ 268.7.and 268.8,mihichever is applicable; and

(14) Foran on-.site-land disposalfacility, the'informationcontained-in' thenotice:required .by the generator orowner or-operatorofa treatment:facilityunder § 268.7, except.for the-manifestnumber,:and thecertffication (anddemonstration,lifapplicable).requiredunder § 268:8,Whichever is applicable.

PART 265-INTERIM'STATUSSTANDARDS FOROWNERS ANDOPERATORS-OF HAZARDOUS'WASTETREATMENT, STORAGE, ANDDISPOSAL FACILITIES

II. In Part 265:' The authority citation for Part 265 is

revised to read as follows:

Authority: 42 U.S.C. 6905,6912(a), 6924,6925,-and.6936.

SubpartB-,General FacilityStandards

2. Section 265.13 is amended byrevising paragraph (b)(7)(iii).to'read asfollows:

§ 265.13 ,General waste analysis.

(b) * * *(7) * * *

(iii) The-annualremoval of.residueswhich are not,delisted under § 260.22.ofthis.chapter.or.whichexhibit acharacteristic of hazardous waste andeither:

(A) Do'not-meet. applicable treatmentstandards of Part 268Subpart'D; or

(B) Where no treatmentstandardshave been establighed:

(1) Such residues do not meet theapplicable prohibition levels in § 268.32or RCRA:section 3004(d); or

(2) Such residues are prohibited fromland disposal under § 268.33(e).

11785




Subpart E-Manifest System,Recordkeeping, and Reporting

3. Section 265.73 is amended byrevising paragraphs (b)(8), (b)(11), and(b)(12) to read as follows:

§ 265.73 Operating record.* * * * •

(b) * * *(8) Records of the quantities (and date

of placement) for each shipment ofhazardous waste placed in land disposalunits under an extension to the effectivedate of any land disposal restrictiongranted pursuant to § 268.5, a petitionpursuant to § 268.6, or a certificationunder § 268.8, and the applicable noticerequired by a generator under § 268.7(a);* * • * •

(11) For an off-site land disposalfacility, a copy of the notice andcertification (and demonstration, ifapplicable) required by the generator orthe owner or operator of a treatmentfacility under § 268.7 and § 268.8,whichever is applicable; and

(12) For an on-site land disposalfacility, the information contained in thenotice required by the generator or theowner or operator of a treatment facilityunder § 268.7, except for the manifestnumber, and the certification (anddemonstration, if applicable) requiredunder § 268.8, whichever is applicable.

PART 268-LAND DISPOSALRESTRICTIONS

Il1. In Part 268:1. The authority citation for Part 268 is


Authority: 42 U.S.C. 6905, 6912(a), 6921, and6924.

Subpart A-General

2. Section 268.1 is amended by addingparagraph (c)(6) to read as follows:

§ 268.1 Purpose, scope and applicability.* * • * *

(c) * * •

(6) Prior to May 8, 1990, in a landfill orsurface impoundment unit where allapplicable persons are in compliancewith the requirements of § 268.8. withrespect to wastes that are not subject toSubpart D treatment standards and notsubject to the prohibitions in § 268.32 orRCRA section 3004(d).

3. Section 268.4 is amended byrevising paragraph (a)(2) to read asfollows:

§ 268.4 Treatment surface Impoundmentexemption.

(a) * * *(2) The following conditions are met:

(i) Sampling and testing. For wasteswith treatment standards in Subpart Dof this part and/or prohibition levels inSubpart C of this part or RCRA section3004(d), the residues of the treatment areanalyzed, as specified in § 268.7 or§ 268.32, to determine if they meet theapplicable treatment standards or,where no treatment standards havebeen established for the waste, theapplicable prohibition levels. Thesampling method, specified in the wasteanalysis plan under § 264.13 or § 265.13,must be designed such thatrepresentative samples of the sludgeand the supernatant are testedseparately rather than mixed to formhomogeneous samples.

(ii) Removal. The following treatmentresidues (including any liquid waste)must be removed at least annually:residues which do not meet thetreatment standards promulgated underSubpart D of this part; residues which .do not meet the prohibition levelsestablished under Subpart C of this partor imposed by statute (where notreatment standards have beenestablished); residues which are fromthe treatment of wastes prohibited fromland disposal under Subpart C of thispart (where no treatment standardshave been established and noprohibition levels apply); or residuesfrom managing listed wastes which arenot delisted under § 260.22 of thischapter. However, residues which arethe subject of a valid certification under§ 268.8 made no later than a year afterplacement of the wastes in animpoundment are not required to beremoved annually. If the volume ofliquid flowing through the impoundmentor series of impoundments annually isgreater than the volume of theimpoundment or impoundments, thisflow-through constitutes removal of thesupernatant for the purpose of thisrequirement.

(iii) Subsequent management.Treatment residues may not be placedin any other surface impoundment forsubsequent management unless theresidues are the subject of a validcertification under § 268.8 which allowsdisposal in surface impoundmentsmeeting the requirements of § 268.8(a).

(iv) Recordkeeping. The proceduresand schedule for the sampling ofimpoundment contents, the analysis oftest data, and the annual removal ofresidues which do not meet thetreatment standards, or prohibitionlevels (where no treatment standardshave been established), or which arefrom the treatment of wastes prohibitedfrom land disposal under Subpart C(where no treatment standards havebeen established and no prohibition

levels apply), must be specified in thefacility's waste analysis plan asrequired under § 264.13 or § 265.13 ofthis chapter.* * * * *

4. Section 268.5 is amended byrevising paragraph (h)(2) introductorytext to read as follows:

§ 268.5 Procedures for case-by-caseextensions to an effective date.* * * * *

(h)***(2) Such hazardous waste may be

disposed of in a landfill or surfaceimpoundment unit only if the unit is incompliance with the followingrequirements:* * * * *

5. Section 268.6 is amended byrevising paragraph (a)(3) and addingnew paragraphs (a)(4) and (a)(5), andrevising paragraphs (c), (e) and (f) toread as follows:

§ 268.6 Petitions to allow land disposal ofa waste prohibited under Subpart C of Part268.(a)***(3) A comprehensive characterization

of the disposal unit site including ananalysis of background air, soil, andwater quality.

(4) A monitoring plan which willdetect migration at the earliestpracticable time;

(5) Sufficient information to assure theAdministrator that land disposal of therestricted waste(s) will comply withother applicable Federal, State, andlocal laws.* * • * •

(c) Each petition referred to inparagraph (a) of this section mustinclude the following:' (1) A monitoring plan that describes

the monitoring program installed at and/or around the unit to verify continuedcompliance with the conditions of thevariance. This monitoring plan mustprovide information on the monitoring ofthe unit and/or the environment aroundthe unit, or if monitoring the unit orenvironment around the unit istechnically infeasible or impractical, therationale supporting the determinationof infeasibility or impracticality. Thefollowing specific information must beincluded in the plan:

(i) The media monitored in the caseswhere monitoring of the environmentaround the unit is required;

(ii) The type of monitoring conductedat the unit, in the cases wheremonitoring of the unit is required;

(iii) The location of the monitoringstations;

m11786



Federal Register / Vol. 53, No. 68 /Friday, April 8, 1988 / Proposed Rules

(iv)'The monitoring interval(frequencyof monitoring ateachstation);

(V) The specific hazardousconstituents to-be monitored;

(vi) The implementation schedule forthe monitoring program;

(vii) The equipment-used at themonitoring stations;

(viii) The sampling-and analyticdltechniques employed; and

(ix) The-data recording/reportingprocedures.

(2) Where.applicable, the monitoringprogram desciibed in paragraph(c)(1)must be in placefor a-period of timespecified by the Administrator prior toreceipt of restricted waste at the unit,unless an alternate schedule-is approvedby the Administrator.

(3) The monitoring data collectedaccording to the monitoring planspecified under paragraph (c)(1),of thissection must be sentto theAdministrator according to a format-andschedule specified~andapproved in themonitoring plan, and

(4) A copy of the monitoring datacollected under the monitoring lplanspecified under paragraph (c)(1) of thissection must.be kept on-site.at.:thefacility in the operating record.

(5) The monitoring program specifiedunder paragraph (c)(1) of this sectionmeet the following criteria:

(i) All sampling, testing, andanalytical .data must be approved-by theAdministratorand must provide datathat is accurate.and.reproducible.

(ii) All estimation and modelingtechniques must be approved by-itheAdministrator.

(iii) A quality assurance and qualitycontrol plan addressing all aspects ofthe monitoring program:must beprovided to and approved by theAdministrator.

(e) After a petition has beenapproved, the owner or operator mustreport any changes in conditions at theunit and/or the environment around theunit that may-affect requirements uponwhich the petition was approved.

(1)If the owner or operator desires .tomake changes to the unit such as-theengineering design, or the compliancemonitoring system such a change mustbe proposed, in writing, and-the-owneror operator must submit ademonstration to the Administratoratleast 30 days prior to making the change.The Administrator will determinewhether the proposed changeinvalidates the terms of the petition andwill determine the appropriate response.Any change must'be approved by theAdministrator prior:to being made.

(2)'If the owner-or operator discoversthat a condition at-the-site which was:modeled or predictedlin the petitiondoesnot occur aspredicted, this changemust be reported, in-writing,,tothe,Administratorwithin 10 days ofdiscovering the dhange. TheAdministrator will determinewhetherthe reported- change from the terms-ofthe petition requires further;action,which maydinclude revocation of thepetition, petition modifications, or otherresponses.

(f0 If the owner or operator determinesthat there is migration of hazardous'constituent() from the unit, the owneror operator.muSt:

(1) Immediately suspend receipttofrestricted wastes .atthe unit, and

(2) Notify theAdministrator, inwriting, within 10 days of thedetermination that a release hasoccurred.

(3) Following receipt of thenotification the Administrator willdetermine within 60 days of receivingnotification the appropriate responseactions that the owner or operator musttake to prevent further migration ofhazardous constituents.out of the unit.* * * * •

6.,Section 2687 isamended byrevising the introductory texts ofparagraphs (a)(1) and (a)(2), and byrevising (a)(3), by redesignating:paragraph (a)(4).as (a)(5), by adding thenew paragraph'(a)(4), by revisingparagraph (b) introductory text, byredesignating paragraph (b)(1).as (b)(4)and (b)(2) as (b)(5), by adding newparagraphs (b)(1), (b)(2),.(b)(3), (b)(6),and,(b)(7), and byrevising paragraph(c)to read as follows:

§ 268.7 Waste analysis.(a) Except as specified in § 268.32 or

§ 268.43 of this-part,-the generator musttest his waste, or'test an extractdeveloped using the test methoddescribed in Appendix I of this part, oruse knowledge of the waste, todetermine if the waste is restricted from:land disposal under this-part.

(1) If a generator determines.that he'ismanaging a restricted .waste under thispart and the waste does not meet theapplicable treatment standards, orwhere the waste does-not comply withthe applicable prohibitions set forth.in§ 268.32 of this part or'RCRA section3004(d), with each shipment of waste thegenerator must notify the treatment orstorage facility in writing of theappropriate treatment standards setforth in Subpart D of this part and anyapplicable prohibitions set forth in'§ 268.32 of this part or RCRA section

3004(d). The notice-must.include thefollowing information:

(2).If.a generatorndetermines that he ismanaging a restricted waste under thispart, and determines .that the waste -canbe land disposed without furthertreatment, with each shipment of wastehe.must.submit, to the treatment,storage, or.land disposal facility,,anotice and a.certification stating .that thewaste meets .the.applicable treatmentstandards-set forth.in.Sdbpart D.of thispart and the applicable prohibitions setforth in § 268.32 of.this part of RCRAsection'3004[(d).

(3) if agenerator's waste is subject toa.caseby-.case.extension under §,268.5,an exemption under § 268.6, an.extension under §268'1(c)(3), or anationwide variance under Subpart C,with .each shipmentof waste, he mustsubmit a notice to the facility receivinghis wastestating that the waste-is notprohibited from land disposal.,

(4) If a generator determinesthat he ismanaging a waste that is subject to-theprohibitions under,§ 268.33(e) of thispart and isnot subject-to theprohibitions-set forth in,§ 268.32 of thispart, with each shipment of waste thegenerator must notify the treatment,storage, or-disposal facility, in writing,of any applicable prohibitions set forthin § 268.33(e). The notice must includethe followinginformation:

(i) EPA Hazardous Waste Number,(ii) The applicable prohibitions set

forth in § 268.33(e);(iii) The:manifestnumber associated

with the.shipment.of waste; and(iv) Waste.analysis data where

available.* * * • *

(b) Treatment facilities must test theirwastes according to-the -frequencyspecified'in their waste-analysis plansas required by § 264.13 or § 265.13. Suchtesting'must-bepeformed as providedin paragraphs'(b)(1,, (b)(2)'and (b)(3) ofthis section.

(1)For wastes with treatmentstandards expressed as concentrationsin the waste-extract (§ 268.41),theowner'or operator of the.treatmentfacility must test the treatment residues,or an extract of-such-residues developedusing the-test-method described inAppendix I-of-this-part, to assure thatthe treatment-residues or extract meetthe applicable treatment standards.

S-(2) For wastes that are prohibitedunder §'268:32 of this part or RCRAsection 3004(d) but not subject to anytreatment standards under Subpart D ofthis part, the owner or operator of the

1178711787



1788Federal Register / Vol. 53. No. 68 / Friday, April 8, 1988 / Proposed Rules

treatment facility must test thetreatment residues according to thegenerator testing requirements specifiedin § 268.32 to assure that the treatmentresidues comply with the applicableprohibitions.

(3) For wastes with treatmentstandards expressed as concentrationsin the waste (§ 268.43), the owner oroperator of the treatment facility musttest the treatment residues (not anextract of such residues) to assure thatthe treatment residues meet theapplicable treatment standards.

(6) If the waste or treatment residuewill be further managed at a differenttreatment or storage facility. thetreatment, storage or disposal facilitysending the waste or treatment residueoff-site must comply with the noticerequirements applicable to generators inparagraph (a)(1) of this section.

(7) For wastes that are subject to theprohibitions under § 268.33(e) of thispart and are not subject to theprohibitions set forth in § 268.32 of thispart, with each shipment of such wastethe owner or operator must notify anysubsequent treatment, storage, ordisposal facility, in writing, of anyapplicable prohibitions set forth in§ 268.33(e). The notice must include thefollowing information:

(i) EPA Hazardous Waste Number;(ii) The applicable prohibitions set

forth in § 268.33(e);(iii) The manifest number associated

with the shipment of waste; and(iv) Waste analysis data, where

available.(c) The owner or operator of any land

disposal facility disposing any wastesubject to restrictions under this partmust:

(1) Have records of the notice andcertifications specified in paragraph (a)or (b) of this section, and thecertification specified in § 268.8 ifapplicable.

(2) Test the waste, or an extract of thewaste or treatment residue developedusing the test method described inAppendix I of this part or using anymethods required by generators under§ 268.32 of this part, to assure that thewastes or treatment residues are incompliance with the applicabletreatment standards set forth in SubpartD of this part and all applicableprohibitions set forth in § 268.32 of thispart or in RCRA section 3004(d). Suchtesting must be performed according tothe frequency specified in the facility'swaste analysis plan as required by§ 264.13 or § 265.13.

(3) Where the owner or operator isdisposing of any waste that is subject to

the prohibitions under § 268.33(e) of thispart but not subject to the prohibitionsset forth in § 268.32, he must ensure thatsuch waste is the subject of a validcertification according to therequirements of § 268.8 prior to disposalin a landfill or surface impoundmentunit, and that such disposal is inaccordance with the requirments of§ 268.5(h)(2).

7. Section 268.8 is added to read asfollows:

§ 268.8 Landfill and surface Impoundmentdisposal restrictions.

(a) Prior to May 8, 1990, wastes whichare otherwise prohibited from landdisposal under § 268.33(e) of this partmay be disposed in a landfill or surfaceimpoundment which is in compliancewith the requirements of § 268.5(h)(2)provided that the requirements of thissection are met.

(1) Prior to such disposal, the personseeking to dispose such wastes (i.e., thegenerator or owner or operator) hasmade a good faith effort to locate andcontract with treatment and recoveryfacilities currently available.

(2) Such generator or owner oroperator submits to the RegionalAdministrator a demonstration andcertification that the requirements ofparagraph (a)(1) of this section havebeen met. The demonstration mustinclude a list of facilities and facilityofficials contacted, addresses, telephonenumbers, contact dates, and anexplanation of why no treatment ispractically available. The followingcertification is required.

I certify under penalty of law that therequirements of 40 CFR 268.8(a)(1) have beenmet and that disposal in a landfill or surfaceimpoundment is the only practical alternativeto treatment currently available. I believethat the information submitted is true,accurate, and complete. I am aware that thereare significant penalties for submitting falseinformations, including the possibility of fineand imprisonment.

(3) With the initial shipment of waste,such generator or owner or operatormust submit a copy of the demonstrationand the certification required inparagraph (a)(2) of this section to theland disposal facility. For eachsubsequent waste shipment, only thecertification is rquired to be submittedprovided that the conditions beingcertified remain unchanged. Suchgenerator or owner or operator mustkeep copies of the demonstration (ifapplicable) and certification required foreach waste shipment on-site.

(b) After receiving the demonstrationand certification, the RegionalAdministrator may request any

additional information which he deemsnecessary to evaluate the certification.

(1) Any person who has submitted acertification under this section mustimmediately notify the RegionalAdministrator when he has knowledgeof any change in the conditions whichformed the basis of his certification.

(2) If, after review of the certification,the Regional Administrator determinesthat treatment (or further treatment) thatyields reductions in toxicity ispractically and currently available, orthat some other method of treatmentyields greater reductions in toxicity ofthe waste or residual or greaterreductions in the likelihood of migrationof hazardous constituents from thewaste or residual, the RegionalAdministrator may invalidate thecertification and require such additionaltreatment.

(c) Once the certification is made,wastes may be disposed in a landfill orsurface impoundment unless otherwiseprohibited by the RegionalAdministrator.

Subpart C-Prohibition on LandDisposal

8. Section 268.33 is added to read asfollows:

§ 268.33 Waste specific prohibitions-First Third wastes.

(a) Effective August 8, 1988, thewastes specified in 40 CFR 261.32 asEPA Hazardous Waste Nos. K004, K008,K015, K036, K062, K069, K073, and K100are prohibited from land disposal.

(b) Effective August 8, 1990, thewastes specified in 40 CFR 261.32 asEPA Hazardous Waste Nos. K016, K018,K019, K020, K024, K030, K037, K048,K049, K050, K051, K052, K061, K071,K103, and K014 are prohibited from land.disposal.

(c] Between August 8, 1988, and May8, 1990, for wastes described inparagraph (b) of this section, disposal ina landfill or surface impoundment isallowed only if the unit is in compliancewith the requirements specified in§ 268.5(h)(2).

(d) The requirements of paragraph (a),(b), and (c) of this section do not applyif:

(1) The wastes meet the applicablestandards specified in Subpart D of thispart; or

(2) Persons have been granted anexemption from a prohibition pursuantto a petition under § 268.6, with respectto those wastes and units covered bythe petition; or

(3) Persons have been granted anextension to the effective date of aprohibition pursuant to § 268.5, with

118 eea eitr/Vl 3 o 8/FiaArl8 98/Pooe ue11788




respect to those wastes covered by theextension.

(e) Between August 8, 1988, and May8, 1990, the wastes specified in' § 268.10for which treatment standards underSubpart D of this part or prohibitions in§ 268.32 or in RCRA section 3004(d) arenot applicable are prohibited fromdisposal in a landfill or, surfaceimpoundment unless the wastes are thesubject of a valid demonstration andcertification pursuant to § 268.8.

(f) To determine whether a hazardouswaste listed in § 268.10 exceeds theapplicable treatment standardsspecified in § 268.43, the initialgenerator must test a representativesample of the entire waste (not a leachextract). If the waste containsconstituents in excess of the applicableSubpart D levels, the waste is prohibitedfrom land disposal and all requirementsof Part 268 are applicable, except asotherwise specified in this section.

Subpart D-Treatment Standards

9. Section 268.40 is amended byrevising paragraph (a) and adding a newparagraph (c) to read as follows:

§ 268.40 Applicability of treatmentstandards.

(a] A restricted waste identified in§ 268.41 may be land disposed only if anextract of the waste or of the treatmentresidue of the waste developed using thetest method in Appendix I of this partdoes not exceed the value shown inTable CCWE of § 268.41 for anyhazardous constituent listed in TableCCWE for that waste.

(c) A restricted waste identified in§ 268.43 may be land disposed only ifthe constituent concentrations in thewaste or treatment residue of the wastedo not exceed the value shown in TableCCWE of § 268.43 for any hazardousconstituent listed in Table CCWE forthat waste.

10. Section 268.41(a) is amended byadding the following subtables to TableCCWE in alphabetical and numericalorder by EPA Hazardous WasteNumber:

§ 268.41 Treatment standards expressedas concentrations In waste extract.

(a) * * *

Table CCWE-ConstituentConcentrations in Waste Extract

K061 nonwastewater (see also table Concentra-CCW in § 268.43) tion (in mg/I)

Cadm ium .................................................. 0.19Chromium (total) ..................................... 0.33Lead ......................................................... 0.09M ercury .................................................... . 0.02Zinc ........................................................... 0.50


Chrom ium (total) ...................................... 0.094Lead .......................................................... 0.37


M ercury ..................................................... 0.0025

K048, K049, K050, K051, K052 Concentra-nonwastewater (see also table CCW ton (in mg/I)

in § 268.43)

Arsenic ...................................................... 0.006Chromium (total) ...................................... 1.68Copper ........................................... 0.013Nickel ............................ 0.048Selenium ......................... 0.025Vanadium .................................................. . 0 .18Z inc ........................................................... 0 .14 1

11. Section 268.43 is amended byadding paragraphs (a) and (b) and TableCCW to read as follows:

§ 268.43 Treatment standards expressedas waste concentrations.

(a) Table CCW identifies therestricted wastes and the concentrationsof their associated hazardousconstituents which may not be exceededby the waste or treatment residual (notan extract of such waste or residual) forthe allowable land disposal of suchwaste or residual.

TABLE CCW-CONSTITUENT

CONCENTRATIONS IN WASTES

K061 nonwastewater (see also table Concentra-CCWE in § 268.41) kg) .

Cadm ium .................................................. . 44.0C hrom ium ................................................. 1730.0Lead .......................................................... 20,300.0M ercury ..................................................... 0.28Zinc ........................................................... 24,100.0

K062 wastewater (see also table Concentra-CCWE in § 268.41) tion (in mg/I)

Chromium (total) .................. : .................. 0.32Copper ...................................................... 0.42N ickel ........................................................ 0.44

K062 wastewater (see also table Concentra-CCWE in § 268.41) tion (in mg/I)

Lead .......................................................... 0.04

Concentra-K016 nonwastewater tion (in mg/

kg)

Tetrachloroethene ................................... 5.96Hexachlorobenzene ................................ 27.2Hexachlorobutadiene .............................. 5.44Hexachlorocyclopentadiene ................... 5.44Hexachloroethane ................................... 27.2

Concentra-K016 nonwastewater tion (in mg/I)

Tetrachloroethene ................................... 0.007Hexachlorobenzene ................................ 0.033Hexachlorobutadiene .............................. 0.007Hexachlorocyclopentadiene ................... 0.007Hexachloroethane .................................. 0.033


kg)

Chloroethane ............................................ 5.961,1-Dichloroethane ................................. . 5.96-1,2-Dichloroethane .................................. 5.961,1,1-Trchloroethane ............................. 5.96Hexachlorobenzene ................................ 27.2Hexachloroethane ................................... 27.2Hexachlorobutadiene .............................. 5.44Pentachloroethane .................................. 5.44

Concentra-K018 nonwastewater tion (in mg/I)

Chloroethane ............................................ 0.007Chloromethane ........................................ 0.0071,1-Dichloroethane ................................. 0.0071,2-Dichloroethane .................................. 0.0071,1,1-Trichloroethane ............................. 0.007Hexachlorobenzene ................................ 0.033Hexachlorobutadiene 0............................. 0.007Pentachloroethane .................................. 0.007


kg)

Chloroform ................................................ 5.961,2-Dichloroethane .................................. 5.96Tetrachloroethene ................................... 5.961,1,1 -Trichloroethane .............................. 5.96Bis(2.chloroethyl)ether ............................ 5.44Chlorobenzene ......................................... 5.66Hexachloroethane ................................... 27.2Naphthalene ............................................. 5.44Phenanthrene ................................. ... 5.441,2,4-Trichlorobenzene ........................... 18.7

K019 wastewater Concentra-tion (in mg/I)

Chlorobenzene ..................................Chloroforme........... ................1,2-Dichloroethane......................

0.0060.0070.007

11789



Federal Register / Vol. 53, No. 68 / Friday,, April 8, 1988 / Proposed Rules


Tetrachloroethene .................................... 0.0071 1,1-Tchloroethane .............................. 0.007-Bis(2-chloroethyl)ether ........................ 0:007p-Dichlorobenzene .................................. 0.008.Hexachloroethane .................................... 0.033Naphthalene ............................................. 0.0071,2,4,5-Tetrachlorobenzene ..................... 0.0171;2,4Tdchlorobenzene ............................ 0.023Fluorene ..................................................... 0.007'Phenanthrene ............................................ 0.007


1,2-Dichloroethane ................................... 5.961,1,2,2-Tetrachloroethane ....................... 5.44Tetrachloroethene ................................... 5.96

Concentra-K020 wastewater tion (in mg/I)

1,2-Dichloroethane ................................... 0.0071,1,2,2-Tetrachloroethane ....................... 0.007Tetrachloroethene .................................... 0.007


kg)

Hexachlorobutadiene ........................ 5.44Hexachloroethane ................................... 27.2Hexachloropropene ................................. 18.7Pentachlorobenzene .............................. 27.2Pentachloroethane .................................. 5.441,2.4,5-Tetrachlorobenzene ................... 13,6Tetrachloroethene ................................. . 5.961,2,4-Trichlorobenzene ........................... 18.7


Tetrachloroethene .................................... 0.007Hexachlorobutadiene ............................... 0.007Hexachloroethane .................................... 0.007'Pentachloroethane ................................ 0.0071,24,5-Tetrachlorobenzene ................. 0.0171,2,4-Trichlorobenzene ............................ 0.023,o-Dichlorobenzene .................................. 0.008p,Dichlorobenzene .................................. 0.008


kg)

Phthalic acid ...................... ... ................. 60

K103 and K104 nonwastewaterConcentration (in mg/

kg)

Aniline ....................................................... 27.2Benzene .................................................... 5.962,3-Dinitrophenol ..................................... 5.44Nitrobenzene ........................................... 18.7Phenol ....................................................... 27.2Total Cyanides (for K104 only) ............... 1.48

K103 and K104 wastewater Concentra-tion (in mg/I)

Aniline ........................................................ 4.450Benzene ..................................................... 0.1472,3-Dinitrophenol ....................................... 0.613Nitrobenzene ..... ...... ...... 0.073Phenol ... ........... ............. 1.391Total Cyanides (for K104 only)...... 2.683

K071 nonwastewater (see also table Concentra-tion (in mg/CCWE in § 268.41) kg)

Mercury ...................................................... 4.6

K071 wastewater Concentra-tion (in mg/l)

Mercury ...................................................... 0.030

K048 nonwastewater (see also table Concentra-in §28.41)tion (in mg/CCWE in §,268.41) kg)

Bis(2-ethylhexyl)phthalate ........................ 4.18Toluene ..................................................... 3.93Chrysene ................................................... 0.84Xylene ....................................................... 8.54Di-n-butyl phthalate ................................. 4.18Naphthalene .............................................. 0.84Phenanthrene ....................... 0.84'Phenol ....................................................... 0.84Cyanide ..................................................... 1.48

Concentra-K048 wastewater, tion (in mg/I)

Phenol ........................................... 0.007Fluorene ........................................ 0.007Toluene ..................................................... 0.007Xylene ...................................................... 0.007Naphthalene ............................................. 0.007Phenanthrene ........................................ 0.007Chromium (total) ...................................... 0.20Lead .......................................................... 0.037Zinc ........................................................... 0.40

K049 nonwastewater (see also table Concentra-CCWE in j268.41) tion (in mg/

_________________________ kg)

Chrysene .................................................... 0.84Xylene ........................................................ 8.54Benzene................................................. 3.93Toluene......................................... 3.93

K049 nonwastewater (see also table-CCWE in § 268.41)

Concentra-tion (in mg/

kg)

Naphthalene .............................................. 0.84Phenanthrene ............................................ 0.84Phenol ........................................................ 0.84Pyrene ........................................................ 1.06Cyanaide ............ .............. 1.48

Concentra-K049 wastewater ionc(ntm/-tion (in ragll)

Anthracene .... ........... ......... 0.007Xyfene .... ...... ................. 0.0072,4-Dimethylphenol ................................. 0.007Benzene .......... ................ 0.023Toluene .................................................... 0.007Naphthalene ............................................ 0.007'Phenanthrene .......................................... 0.007Phenol ...................................................... 0.007Chromium (total) ..................................... 0.20Lead .................................................... 0.037Zinc .......................................................... 0.40

K050 nonwastewater (see also table Concengra-

CCWE in § 268.41) kg)

Benzo(a)pyrene ......................................... 0.84Phenol ........................................................ 0.84Cyanide ...................................................... 1.48


Phenol ....................................................... 0.007Chromium (total) ...................................... 0.20Lead ............................ 0.037Zinc ........................................................... 0.40

Concentra-K051 nonwastewater (see also table tion (in mg/CCWE in § 268.41) kg)

Toluene ................................................. 3.93Chrysene ............................................ . 0.84Xylene ........................................................ 8.54Di-n-butyl phthalate .................... 4.18Naphthalene .............................................. 0.84Phenanthrene ............................................ 0.84Phenol ........................................................ 0.84Pyrene ........................................................ 1.06Cyanide ........................... 1.48

Concentra-K051 wastewater . tion (in mg/I)

Fluorene .................................................... 0.007Acenaphthene ........................................ 0.007Toluene .... ...................... 0.007Xylene ...................................................... 0.007Naphthalene ............................................. 0.007Phenanthrene .......................................... 0.007Phenol ....................................................... 0.007Chromium (total) ...................................... 0.20Lead ......................................................... . 0,037Zinc .......................................................... 0.40

11790




K052 nonwastewater (see also table Concentra-CCWE in § 268.41) tion (in mg/

kg)

Toluene ...................................................... 3.93Xylene ........................................................ 8.54o-Cresol .................................................... 0.84p-Cresol ..................................................... 0.84Naphthalene ............................................. 0.84Phenanthrene ........................................... 0.84Phenol ....................................................... 0.84Cyanide ..................................................... 1.48

Concentra-K052 wastewater tonc(ntm/Itbon (in mg/I)

Phenanthrene .......................................... 0.0072,4-Dimethylphenol .................................. 0.007Benzene .................................................... 0.023Xylene ....................................................... 0.007o-Cresol .................................................... 0.007p-Cresol .................................................... 0.007Naphthalene ............................................. 0.007Phenol ....................................................... 0.007Chrom ium (total) ...................................... 0.20Lead .......................................................... 0.037Zinc ........................................................... 0.40

Concentra-KO015 wastewater Cnetation (in mg/I)

Anthracene ............................................... 1.02Benzal chloride ........................................ 0.28Benzo(b and/or k) fluoranthene ............ 0.29Phenanthrene ........................................... 0.27Toluene ..................................................... 1.00Chrom ium (total) ...................................... 0.30Nickel ........................................................ 0.44

Concentra-K037 nonwastewater ion (in mg/kg)

Disulfoton .................................................. 0 .1Toluene ...................................................... 28.0

K037 asteaterConcentra-

K037 astewter bon (in mg/1)

Disulfoton .................................................. 0.003

Toluene ..................................................... 0.028

No Land Disposal for:K004K008K015 nonwastewaterK036K061 wastewaterK069K073K1O0(b) When wastes with differing

treatment standards for a constituent ofconcern are combined for purposes oftreatment, the treatment residue mustmeet the lowest treatment standard forthe constituent of concern.

Subpart E-Prohibitions on Storage

12. Section 268.50 is amended byrevising paragraph (d) to read asfollows:

§ 268.50 Prohibitions on storage ofrestricted wastes.* * * * *

(d) The prohibition in paragraph (a) ofthis section does not apply to wasteswhich are the subject of an approvedpetition under § 268.6, a nationwidevariance under Subpart C of this part,an approved case-by-case extensionunder § 268.5, or a valid certificationunder § 268.8.* * * * *

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS

IV. In Part 271:1. The authority citation for Part 271 is


Authority: 42 U.S.C. 6905, 6912(a), and 6926.

Subpart A-Requirements for FinalAuthorization

2. Section 271.1(j) is amended byadding the following entry to Table 1 inchronological order by date ofpublication in the Federal Register.

§ 271.1 Purpose and scope.* * * * *

(j) * . ,

TABLE 1.-REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation FEDERAL REGISTER reference Effective date

(Insert date of publication of final Land disposal restrictions for First Third wastes ............ 53 FR [insert FEDERAL REGISTER page numbers] . Aug. 8, 1988.rule in the FEDERAL REGISTER].

3. Section 271.1(j) is amended by Federal Register page numbers to the § 271.1 Purpose and scope.adding the date of publication and the following entry in Table 2. * . . . .(j) * * ,

TABLE 2.-SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation FEDERAL REGISTER reference

Aug. 8, 1988 . Land disposal restrictions on First Third of listed 3004(g) ................................................................................ [Insert date of publication], 53 FRwastes. [insert FEDERAL REGISTER page

numbers].

[FR Doc. 88-7379 Filed 4-7-88; 8:45 am]BILLING CODE 6560-50-M

11791

