land disposal restrictions for first third scheduled ...applicable to certain california list hoc...

31138 Federal Register / Vol. 53,.

Environmental Protection Agency

40 CFR Parts 264, 265, 266, 268 and271

[OSW-FR-88-011; SWH-FRL-3420-4]

Land Disposal Restrictions for FirstThird Scheduled Wastes

AGENCY: Environmental ProtectionAgency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental ProtectionAgency (EPA) is today promulgatingregulations implementing thecongressionally mandated prohibitionson land disposal of hazardois wasteslisted in 40 CFR 268.10. This action istaken in response to amendments to theResource Conservation and RecoveryAct (RCRA), enacted in the Hazardousand Solid Waste Amendments (HSWA)of 1984. Today's notice promulgatesspecific treatment standards andeffective dates for certain so-called"First Third" wastes. In addition, theAgency is promulgating regulationsimplementing the land disposalrestrictions for those First Third wastesfor which EPA is not establishing atreatment standard.

Furthermore, today's rule establishesregulations that do not specificallyinvolve First Third wastes (or do notapply exclusively to such wastes). Theseactions include modifications to theexisting requirements for the "nomigration" petition process and therescission of the nationwide capacityvariance for hazardous wastes (otherthan contaminated soils) containinghalogenated organic compounds (HOCs)granted by the Agency in the July 8, 1987rulemaking. The Agency is alsoamending the treatment standardapplicable to certain California list HOCwastes to allow burning in industrialboilers and furnaces, and revising thetreatment standard for methylenechloride in spent solvent wastewatersfrom the pharmaceutical industry. EPAalso is amending 40 CFR 266.20 torequire that most hazardous wastesused in a manner constituting disposalmeet the applicable treatment standardsfor the prohibited hazardous waste thatthey contain as a condition of remainingexempt from other RCRA standards.Additionally, today's rule modifiesportions of the land disposal restrictionsframework.OFFECTIVE DATE: This final rule iseffective August 8, 1988, except for the

modification to 40 CFR 268.5(h)(2),which becomes effective November 8,1988.ADDRESS: The official record for thisrulemaking is identified as DocketNumber F-88-LDR9-FFFFF and islocated in the EPA RCRA Docket(located in the sub-basement) 401 MStreet SW., Washington, DC 20460. Thedocket is open from 9:00 to 4:00, Mondaythrough Friday, except for publicholidays. To review docket materials,the public must make an appointment bycalling (202) 475-9327. The public maymake copies of the docket materials at acost of $.15 per page.FOR FURTHER INFORMATION CONTACT:For general information about thisrulemaking contact the RCRA Hotline,Office of Solid Waste (OS-305), U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20480, (800)424-9346 (toll free) or (202) 382-3000 inthe Washington, DC metropolitan area.For information on specific aspects ofthis rule contact Stephen Weil, MitchKidwell or William Fortune, Office ofSolid Waste (OS-333), U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460, (202)382-4770. For specific information ontreatment standards/BDAT, contactJames Berlow or Larry Rosengrant,Office of Solid Waste (OS-322), U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20480, (202)382-7917. For specific information oncapacity determinations/nationalvariances, contact Jo-Ann Bassi, orLinda Malcolm, Office of Solid Waste(OS-322), U.S. Environmental ProtectionAgency, 401 M Street SW., Washington,DC 20460, (202) 382-7917.

SUPPLEMWENTARY INFOnzMiTOON:

PRZAM3L. OUTLt, E

I. BackgroundA. Summary of the Hazardous and Solid

Waste Amendments of 1984 and theLand Disposal Restrictions Framework1. Statutory Requirements2. Solvents and Dioxins3. California List Waste4. Scheduled Wastes5. Newly Identified and Listed Wastes

B. Summary of the Proposed Rules1. Proposed Approach2. Applicability3. Best Demonstrated Available Technol-

ogies (BDAT)4. Waste Analysis Requirements5. Nationwide Variances from the Effec-

tive Date6. "Soft Hammer" Requirements

PREAMBLE OUTLINE-Continued

7. "No Migration" Petition Requirements8. Comparative Risk Assessment9. Modifications to the Framework

I. Summary of Today's Final RuleA. ApplicabilityB. Waste Analysis RequirementsC. Treatment Standards and Effective

DatesD. "Soft Hammer" RequirementsE. Reinterpretation of RCRA section

3004(h)(4)F. "No Migration" Petition RequirementsG. Nonrulemaking Procedures for Site-Spe-

cific Variances from the TreatmentStandard

III. Detailed Discussion of Today's Final RuleA. Determination of Treatability Groups

and Development of Treatment Stand-ards1. Waste Treatability Groups2. Identification of BDAT3. Compliance with Performance Stand-

ards4. Applicability of Treatment Standards

to Mixtures and Other "Derived-From"Residues

5. Transfer of Treatment Standards6. "No Land Disposal" as the TreatmentStandard

7. Waste-Specific Treatment Standardsa. Revision of BDAT Treatment Stand-

ard for Methylene Chloride inWastewaters from the Pharmaceuti-cal Industry

b. F00--Wastewater treatmentsludges from electroplating oper-ations except from the followingprocesses: (1) Sulfuric acid anodiz-ing of aluminum; (2). tin plating oncarbon steel; (3) zinc plating (segre-gated basis) on carbon steel; (4) alu-minum or zinc-aluminum plating oncarbon steel; (5) cleaning/strippingassociated with tin, zinc, and alumi-num plating on carbon steel; and (6)chemical etching and milling of alu-minum.

c. K001-Bottom sediment sludge fromthe treatment of wastewaters fromwood preserving processes that usecreosote and/or pentachlorophenol.

d. K015-Still bottoms from the di3til-lation of benzyl chloride.

a. K016-Heavy ends or distillationresidues from the production ofcarbon tetrachloride.K018-Heavy ends from the frac-

tionation column in ethyl chlorideproduction.

K019-Heavy ends from the distilla-tion of ethylene dichloride in eth-ylene dichloride production.

K020-Heavy ends from the distilla-tion of vinyl chloride in vinylchloride production.

K030-Column bottoms or heavyends from the combined produc-tion of trichloroethylene andperchloroethylene.

31138 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

HeinOnline -- 53 Fed. Reg. 31138 1988

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

Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 31139PREAMBLE OUTLINE-Continued

f. K022-Distillation bottom tars fromthe production of phenol/acetonefrom cumene.

g. K024-Distillation bottom tars fromthe production of phthalic anhydridefrom naphthalene.

h. K037-Wastewater treatmentsludges from the production of disul-foton.

i. K044-Wastewater treatmentsludges from the manufacturing andprocessing of explosives.K045--Spent carbon from the treat-

ment of wastewater containingexplosives.

K047-Pink/red water from TNT op-erations.

j. K046--Wastewater treatmentsludges from the manufacturing, for-mulation, and loading of lead basedinitiating compounds.

k. K048 Dissolved air flotation (DAF)float from the petroleum refining in-dustry.K049-Slop oil emulsion solids from

the petroleum refining industry.K050-Heat exchanger bundle

cleaning sludge from the petrole-um refining industry.

K051-API separator sludge fromthe petroleum refining industry.

K052-Tank bottoms (leaded) fromthe petroleum refining industry.

1. K061-Emission control dust/sludgefrom the primary production of steelin electric furnaces.

m. K062-Spent pickle liquor generat-ed by steel finishing operations offacilities within the iron and steelindustry (SIC Codes 331 and 332].

n. K069-Emission control dust/sludgefrom secondary lead smelting.

o. K071-Brine purification muds fromthe mercury cell process in chlorineproduction, where separately pre-purified brine is not used.

p. K073-Chlorinated hydrocarbonwaste from the purification step ofthe diaphragm cell process usinggraphite anodes in chlorine produc-tion.

q. K083-Distillation bottoms from an-iline production.

r. K086--Solvent washes and sludges,caustic washes and sludges, orwater washes and sludges from thecleaning of tubs and equipment usedin the formulation of ink from pig-ments, driers, soaps, and stabilizerscontaining chromium and lead.

PREAMBLE OUTUNE-Continued

s. K087-Decanter tank tar sludgefrom coking operations.

t. K099-Untreated wastewater fromthe production of 2,4-dichlorophen-oxyacetic acid (2,4-D).

u. K101-Distillation tar residues fromthe distillation of aniline-based com-pounds in the production of veteri-nary pharmaceuticals from arsenicor organo-arsenic compounds.K102-Residue from the use of acti-

vated carbon for decolorization inthe production of veterinary phar-maceuticals from arsenic ororgano-arsenic compounds.

v. K103-Process residues from anilineextraction from the production ofaniline.K104-Combined wastewater

streams generated from nitroben-zene/aniline production.

w. K106-Wastewater treatmentsludge from the.mercury cell processin chlorine production.

x. K004-Wastewater treatmentsludge from the production of zincyellow pigments.K008-Oven residue from the pro-

duction of chrome oxide greenpigments.

K021-Aqueous spent antimony cat-alyst waste from fluoromethanesproduction.

K025-Distillation bottoms from theproduction of nitrobenzene by thenitration of benzene.

K036--Still bottoms from toluenereclamation distillation in the pro-duction of disulfoton.

K00--Ammonia still lime sludgefrom coking operations.

K100-Waste leaching solution fromacid leaching of emission controldust/sludge from secondary leadsmelting.

8. Appropriate Technologies for CertainFirst Third Wastes for Which EPAHas Not Promulgated TreatmentStandards

9. Burning in Industrial Boilers and In-dustrial Furnaces as BDAT for CertainCalifornia List HOCs

B. Testing and Recordkeeping Require-ments1. Waste Analysis2. Notification Requirements3. Recordkeeping Requirements for Gen-

erators and Treatment, Storage, andDisposal Facilities

C. "Soft Hammer" Requirements1. Applicability2. Interpretation of Specific Terms

PREAMBLE OUTLINE-Continued

3. Certification Requirementsa. Certification for Treated "Soft

Hammer" Wastesb. Certification by Owners or Opera-

tors as Well as Generatorsc. Certification

4. Treatment of "Soft Hammer" Wastesin Surface Impoundments

5..Retrofitting Variances6. Storage Prohibition

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

E. Relationship to California List Prohibi-tions1. "Soft Hammer" Wastes2. Wastes Granted a National Variance

F. Petitions to Allow Land Disposal ofProhibited Wastes

G. Approach to Comparative Risk Assess-ment

H. Determination of Alternative Capacityand Effective Dates for First ThirdWastes, F001-F005 Spent Solvents, Cali-fornia List Halogenated Organic Com-pounds, and Contaminated Soil andDebris

I. Recyclable Materials Used in a MannerConstituting Disposal

J. Reclamation of Indigenous WasteK. Nonrulemaking Procedures for Site-Spe-

cific Variances from the TreatmentStandard

L. Rationale for Immediate Effective DateIV. 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. Recyclable Materials Used in a Manner

Constituting Disposal (§ 266.20]D. Purpose, Scope, and Applicability

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

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

strictions (§ 268.8)J. Identification of Wastes to Be Evaluated- By May 8, 1990 (§ 268.12)K. Determination as to the Availability of

the Two Year Nationwide Variance forSolvent Wastes Which Contain LessThan 1% Total Foo1-F005 Solvent Con-stituents (§ 268.30)

L. Waste Specific Prohibitions (§§ 268.30,268.31, 268.32, and 268.33)

M. Treatment Standards (§§ 268.40, 268.41,and 268.43)

N. Variance From the Treatment Standard(§ 268.44)

Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 31139



3l_140 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

P.==t~L 7o-= Jn~L7-Continu'd

0. Storage Prohibition t 268.50)V. State Autboilty

A. Applicability of Ru os in AuthorizedStater

B. Effect on State Authoi lvtionsC. State Implementation.

VI. Effects of the Land i.:pcsal Rcstrict'onsProgram on Other Enviromental ProgramsA. Discharges Regulatud Undc, the Clean

Water Act13, Dicchargea Regulnted lUrder the 'Marine

Protection, Research, and SanctuariesAct IMPRSA)

C, Air Emissions Regulated Under theClean Air Act

VII. Regidatory AnalysesA. Regulatory Impact A, alyrs

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

tives4. Methodology5. Results

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

VIII. Implementation of the Part 268 LandDisposal Restrictions Program

IX. ReferencesX. List of Subjects in 40 CFR Parts 264, 265,266, 2. and 271

L Background

A. Summary of the Hazardous and SolidWaste Amendments of 1984 and theLand Disposal Restrictiohs Framework

1. Statutory Requirements

The Hazardous and Solid WasteAmendments (HSWA), enacted onNovember 8,1984, prohibit the landdisposal of hazardous wastes.Specifically, the amendments specifydates when particular groups ofhazardous wastes are prohibited fromland 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)). Congreas established aseparate schedule for reatricting thedisposal by underground injection ofsolvent- and dioxin-containinghazardous wastes, wastes referred tocollectively as California list hazardouswastes [RCRA section 3004(f)(2), 42U.S.C. 6924(f)(2)), and soil and debrisresulting from CERCLA section 104 and106 response actions and RCRAcorrective actions when the soil anddebris contains listed spent solvent anddioxin hazardous wastes.

The amendments also require theAgency to set "levels or methods of

treatment, if any, which sibzaI.ntiallydiminish the toxicity of the wate orsubstantially reduce the likelihood ofmigration of hazardous constituentsfrom the waste !o that shur-turr andlong-term thrato to humran healJ andthe cnvironielt ere minimized" trRSAsection 3004(m)(1), 42 U.S.C. C2 4'm)[()).Wastes that meet treatamiit a'urXardsc3tablished by 77A a!3 not probibitedand may be land dirpo r. (Ta Agencycan alao grant a vaAance fion atraatment sts-ndard by eetablishing anew treatability group andcorresponding treatment standard for aspecific weete foLlowirg a auccecifulP-tition r ,taton.. In additien, ahazardous waste that does not mect thetreatment itandard m iy be londdisposed provided the "no migration"demonstration specified in sections 3004(d)(1), (el() 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 3W0[k), 42 U.S.C.6924(k)).

Although HSWA defines landdisposal to include injection wells,disposal of solvents, dioxins, andCalifornia list wastes in injection wellsis covered on a separate schedule. Thedisposal of such wastes in deep wellsis subject to the land disposalrestrictions 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 dispusal capacity whichprotects human health and theenvironment will be available" (RCRAsection 3004(h)(2), 42 U.S.C. 6924(h)[21).The Administrator may also grant acase-by-case extension of the statutorydeadline for up to one year, renewableonce for up to one additional year, whenan applicant "demonstrates that there isa binding contractual commitment toconstruct or otherwise provide suchalternative capacity but due tocircumstances beyond the control ofsuch applicant such alternative capacitycannot reasonably be made available bysuch effective date" (RCRA section3004(h)(3). 42 U.S.C. 6924(h)(3)). A case-by-case extension can be grantedwhether or not a national capacityvariance has been granted.

The statute also allows treatment ofhazardous wastes in surfaceimpoundments that meet certainminimum technological requirements (orcertain exceptions thereto). Treatmentir surface impoundments iu permissibleprovided the treatment re,uec that donot meet the treatment atandard(s), orapplicable statutory prohibt!ion l1wvlswhere no treatment standards havebeen established, are "removed forsubsequent management within oneyear of the entry of the waste int. thesurface impoundment" (RCRA section30C50)(11)(B), 42 U.S.C. 692i~j)(11)tv3)).

In addition to prohibiting th. c riddisposal of hazardotio wret % Cnrgres3a!so prohibited the storage of -.sy w astewhich is prohibited from land disposalunless "such storage is solaly fav' thepurpose of the accumulaticn of schquantities of hazardous waate as arenecessary to facilitate proper recovery,treatment or disposal" [RCRA section3004[j), 42 U.S.C. 6924 [j)).

2. Solvents and Dioxins

Effective November 8, 1986, HSWAprohibited land disposal (except byundergrond injection into deep wells)of dioxin-containing hazardous wastesnumbered F020, F021, F022, and F023 1

and solvent-containing hazardouswastes numbered FO0, F002, F003, F004,and F005 listed in 40 CFR 261.31 (RCRAsections 3004 (e)(1), (e)(2), 42 U.S.C. 6924(e)(1), (e)[2)). Effective August 8, 1988,the disposal of these wastes into deepinjection wells is prohibited (RCRAsection 3004 (f)(2), ff)(3), 42 U.S.C. 6924(f)(2), (f)(3)). During the period endingNovember 8,1988, this prohibition doesnot apply to disposal of solvent anddioxin contaminated soil or debrisresulting from a response action takenunder section 104 or 108 of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA) or a correctiveaction taken under Subtitle C of RCRA(RCRA section 3001(e)(3), 42 U.S.C. 6924(e (3)).

On November 7,1986, EPApromulgated a final rule (51 FR*40572)implementing RCRA section 3004(e).This rule not only established thegeneral framework for the land disposalrestrictions program, but alsoestablished treatment standards for theFO0-F00S solvent wastes and FOZ-F023 and F026-F028 dioxin-containingwastes. For a more detailed summary of

'The final dioxin rulemaking (50 FR 197M. January14, 195) contains three waste codes. P02. P027,and 1020. not specified in the statute. The additionalwaste codes are a result of reorganizations and donot represent a substantive departure from thewaste codes enumerated in section 3004(e)(1).




the land disposal restrictionsframework, including those regulationspromulgated in the November 7, 1986final rule, refer to the April 8, 1988proposal (53 FR 11742).

3. Cal'rnia List Wastes

Effective July 8, 1G87, the statuteprohibited farther land disposal (exceptby deep well injection) of the followingwasea listed or identified under section3001 of RCRA.

(A) Liquid hazardous wastes, including freeliquids associated with any solid or sludge,containing free cyanides at concentrationsgreater than or equal to 1,000 mg/l.

(B) Liquid hazardous wastes, including freeliquids associated with any solid or sludge,containing the following metals (or elements)or compounds of these metals (or elements)at concentrations greater than or equal tothose specified below:

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

(ii) cadmium and/or compounds (as Cd)100 mag/l;

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

(iv) lead and/or compounds (as Ph) 500mg/l;

(v) mercury and/or compounds (as Hg) 20mg/1;(vi) nickel and/or compounds (as Ni) 134

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

100 mg/l; and(viii) thallium and/or compounds (as Tl)

130 mg/l.(C) Liquid hazardous waste having a pH

less than or equal to two (2.0).(D) Liquid hazardous wastes containing

polychlorinated biphenyls (PCBs) atconcentrations greater than or equal to 50ppm.

(E) Hazardous wastes containinghalogenated organic compounds (HOCs) intotal concentration 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 section 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 108 of CERCLA or acorrective action taken under Subtitle Cof RCRA (RCRA section 3004(e)(3), 42U.S.C. 6924(e)(3)).

On July 8, 1987, EPA promulgated afinal rule (52 FR 25760) implementingRCRA section 3004(d). This ruleestablished treatment standards forCalifornia list wastes containing PCBsand certain HOCs, and codified thestatutory prohibition on liquid corrosivewastes. The statutory prohibition is ineffect for the California list wastes

containing free cyanides, metals, andthe California list dilute HOCwastewaters. For a more detailedsummary of the land disposalrestrictions framework, including theregulations and modificationspromulgated in the July 8, 1987 rule, referto the April 8, 1988 proposal (53 FR11742).

4. Scheduled WastesThe amendments required the Agency

to prepare a schedule by November 8,1986 for restricting the land disposal ofall hazardous wastes listed or identified'as of November 8, 1984 in 40 CFR Part261, excluding solvent- and dioxin-containing wabtes and California listwastes covered under the schedule setby Congress. The schedule, based on aranking of the listed wastes thatconsiders 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 hazardous wastesand all hazardous wastes identified as ofNovember 8, 1984, by one or more of thecharacteristics defined in 40 CFR Part 261 byMay 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 "such facility" isin compliance with the minimumtechnological requirements specified inRCRA section 3004(o) (RCRA section3004(g)(6)). [Note.-In today's final rule,EPA is interpreting the term "suchfacility" in 3004(g)(6) to refer to theindividual surface impoundment orlandfill unit]. In addition, prior todisposal, the generator must certify tothe 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 wasteor until May 8, 1990, whichever issooner. Other forms of land disposal arenot similarly restricted and maycontinue to be used for disposal of

untreated wastes until EPA premu~lgatesa treatment standard or until May 8,1990, whichever is sooner. If the Agencyfails to set a treatment standard for anyscheduled hazardous waste by May 8,1990, the waste is automaticallyprohibited from all forms of 'anddisposal after that time unless the wasteis the subject of a successful."nomigration" demonstration (RCRAsection 3004(g)(s), 42 U.S.C. 9924'g)[5)).(Also, the May 8, 1990 effective datemay be extended under RCRA section3004(h)(2) for certain Second Th'rd andThird Third wastes, and until August 8,1990 for certain First Third wastes.) In aMay 28, 1986 final rule (51 FR 13C0),EPA published the schedule for zettingtreatment standards for the listed andidentified hazardous wastes. All wastesthat are identified as hazardous bycharacteristic are scheduled in the ThirdThird, as required by RCRA. Thisschedule is incorporated in 40 CFR268.10, 268.11, and 268.12.

Today's final rule promulgates theconditions under which wastes includedin the first one third of the schedule ofrestricted hazardous wastes listed in 40CFR 268.10 (First Third) may continue tobe land disposed. This rule finalizes theApril 8, 1988 (53 FR 17578) and May. 17,1988 (53 FR 15000) proposedrulemakings.

5. Newly Identified and Listed Wastes

RCRA requires the Agency to make aland disposal prohibition determinationfor any hazardous waste that is newlyidentified or listed in 40 CFR Part 261after November 8, 1984 within sixmonths of the date of identification orlisting (RCRA section 3004(g)(4), 42U.S.C. 6924(g)(4)). However, the statutedoes not provide for an automaticprohibition of the land disposal of suchwastes if EPA fails to meet thisdeadline.

B. Summary of the Proposed Rules

1. Proposed Approach

In the interest of allowing theregulated community the most timepossible for notice and comment on theAgency's approach to implementingRCRA section 3004(g), EPA believed itwas prudent to propose today's rule intwo separate notices. The first proposal,April 8, 1988 (53 FR 11742), proposedtreatment standards and effective datesfor 24.listed hazardous wastes. Thisproposal also presented and solicitedcomment on the Agency's approach toimplementing the "soft hammer"provisions pursuant to RCRA section3004(g)(6), which are applicable to FirstThird wastes for which EPA has not set



314 eea eitrIVl 3 No.15 I Wensdy Auut1,18 ue n euain

treatment standards or effective dates. IfEPA fails to set treatment standards forany Second Third wastes by June 8,1989, the "soft hammer" provisions willalso be applicable. Amendments to the"no migration" petition process and tocertain of the framework regulations,were also proposed in the April 8 notice.

The second proposal, May 17, 1988 (53FR 17578), proposed treatment standardsand effective dates for 17 additionallisted hazardous wastes. Also presentedin the second proposal were newcapacity determinations based on the1987 National Survey of HazardousWaste Treatment, Storage, Disposal andRecycling Facilities. These new capacitydeterminations revised the effectivedates proposed in the April 8, 1988proposal for several waste codes, andalso proposed to rescind certainnational variances granted in previousrulemakings (November 7, 1986, 51 FR40572; July 8, 1987, 52 FR 25760).

Today's rulemaking finalizes both theApril 8 and May 17 proposals. The landdisposal restrictions effective dates forFirst Third wastes which are disposed indeep injection wells are not addressedin this final rule, but rather, are beingaddressed in a separate rulemaking.

2. ApplicabilityIn both the April 8, 1988 and May 17,

1988 proposals, EPA clarified theapplicability of treatment standards towastes derived from the treatment,storage or disposal of listed wastes andto mixtures of prohibited hazardouswastes or nonwaste matrices (such assoil). The Agency emphasized thefollowing two points:

1. All of the residues resulting fromtreatment of the original listed wastesare likewise considered to be the listedwaste by virtue of the derived-from rulecontained in 40 CFR 261.3(c)(2).Consequently, all of the residuesgenerated in the course of treatmentwould be prohibited from land disposalunless they satisfy the applicabletreatment standard or meet one of theexceptions to the prohibition.

2. In general, treatment standardscontain concentration levels forwastewaters and concentration levelsfor nonwastewaters (i.e., wastewatersand nonwastewaters are identified asseparate treatability groups). Thesetreatment standards apply to residualsresulting from treatment of the originalprohibited waste. Thus, all solidsresulting from treatment of a prohibitedwaste would have to meet the treatmentstandard for nonwastewaters. Likewise,wastewaters resulting from treatment(e.g., scrubber waters from incineration)would have to meet the wastewatertreatment standards. EPA wishes to

make clear that this approach is notmeant to alluw partial treatment only tochange the applicable treatmentstandard.

In addition, the Agency clarified theapplicability of the treatment standardsto residues resulting from types ofmanagement other than treatment.Examples are contaminated soil orleachate derived from managing thewaste. In these cases, the mixture isdeemed to be the listed waste, eitherbecause of the derived-from rule, themixture rule (40 CFR 261.3(a)(2)(iv)), orbecause the listed waste is contained inthe matrix (see e.g., 40 CFR 261.3(d)(2),40 CFR 261.33(d), RCRA section3004(e)(3)). Thus, the prohibition for theparticular listed waste applies to thistype of waste.

3. Best Demonstrated AvailableTechnologies (BDAT)

In the April 8 and May 17 proposals,the Agency defined the wastetreatability groups by waste codes(generally separating the waste codesinto "wastewater" and"nonwastewater" treatability groups)and identified the Best DemonstratedAvailable Technologies (BDAT) for eachtreatability group. Treatment standardsapplicable to the specific waste codes(and treatability groups) are based onthe treatment performance levelsachievable by the corresponding BDATidentified for each treatability group.Although treatment standards aregenerally expressed as concentrationlevels that represent the performance ofBDAT, EPA wishes to clarify that anytechnology not otherwise prohibited(i.e., impermissible dilution) may beused to meet the applicable treatmentstandards. Specifically, compliance withthe land disposal restrictions treatmentstandards is achieved by meeting thenumerical performance standardsestablished for each constituent. Thespecific technology (BDAT) upon whichthe standards are based does not needto be used (except when technologiesare set as the standards, e.g.halogenated organic compounds(HOCs)).

In the April 8, 1988 Federal Registernotice (53 FR 11742), incineration wasproposed as BDAT for waste codesK015, K016, K018, K019, K020, K024,K030, K037, and K048-K052 (and theproposed treatment standardsconsequently were based upon theperformance of that technology).Chromium reduction, followed bychemical precipitation and vacuumfiltration was proposed as BDAT forK062. Solvent extraction followed byincineration of the extract and by steamstripping and activated carbon

adsorption for the wastewater streamwas proposed as BDAT for K103 andK104. High temperature metals recoverywas proposed as BDAT for K061. ForK071, acid leaching and chemicaloxidation was proposed as BDAT fornonwastewaters, and sulfideprecipitation and filtration wasproposed as BDAT for wastewaters.Total recycle was proposed as BDAT forK069 wastes. EPA determined that thewastes K004, K008, K036, K073, andK100 are no longer being generated anddisposed, and therefore, did not identifyBDAT for these wastes.

In the May 17, 1988 proposal (53 FR17578), stabilization was proposed asBDAT for waste codes F006 and K046.For waste codes K001 and K086 (solventwashes and sludges subcategory), BDATwas proposed as incineration followedby stabilization of nonwastewaterresiduals and chromium reductionfollowed by chemical precipitation forwastewater residuals. The proposedBDAT for nonwastewater forms of K022was proposed as fuel substitutionfollowed by metals stabilization andmetals precipitation of scrubber water.Fuel substitution or incineration was theproposed BDAT for K083. EPA proposedrotary kiln incineration as BDAT forK087 and solicited information tosupport a conclusion that total recyclingcould be accomplished for some K087subcategories. BDAT for K099 wasproposed as chemical oxidation withchlorine. Incineration followed bystabilization of ash residues toimmobilize the metals was the proposedBDAT for both K101 and K102. BDATwas proposed as thermal recovery forK106 nonwastewaters and sulfideprecipitation followed by filtration forK106 wastewaters. The Agencydetermined that waste codes K021,K025, and 1(060, were no longergenerated, and thus "No Land Disposal"was the proposed BDAT treatmentstandard. Waste codes K044, K045, andK047 also had "No Land Disposal" asthe proposed treatment standardbecause open burning/open detonationwas identified as treatment for thesereactive wastes. Because open burningand open detonation are not consideredto be land disposal provided that noreactive constituents remain afterdetonation (see 51 FR 40580), therewould be no land disposal of ahazardous waste (see 40 CFR261.3(a)(2)(iii)).

EPA also proposed to revise thetreatment standard for methylenechloride in F001-F005 wastewaters fromthe pharmaceutical industry to be basedon the performance of steam stripping.Furthermore, in the May 17, 1988

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Federal Register / Vol. 53, No. 159 I Wednesday, August 17, 1988 I Rules and Regulations 31143proposal, EPA solicited additionalcomment on an approach that wouldamend the § 268.42(c)(2) treatmentstandards to allow burning of Californialist HOCs in industrial boilers andfurnaces (as well as incinerators) inaccordance with applicable regulatoryrequirements.

4. Waste Analysis Requirements

In the April 8, 1988 proposal, EPApresented its approach to wasteanalysis (see 53 FR 11764). Sincetreatment standards represent theperformance level of BDAT applied to aparticular waste, the Agency's approachwas to require waste analysis that bestmeasures what the BDAT treatmenttechnology is intended to accomplish(even though use of the identified BDATis not required). For example, ifincineration (a destruction technology)is identified as BDAT, then thetreatment standards are expressed astotal constituent concentration levels(i.e., waste analysis is a totalcomposition analysis, rather than anextract analysis) to evaluate whetherdestruction occurs optimally. Similarly,if stabilization (an immobilizationtechnology) is identified as BDAT, thenthe treatment standards are expressedas constituent concentration levels in aToxicity Characteristic LeachingProcedure (TCLP) (see 40 CFR Part 268Appendix I) extract to reflect whetherimmobilization has been optimized.

The Agency also clarified that incases where a combination of both adestruction or removal technology and astabilization or fixation technology isidentified as BDAT, then both analysesmust be employed to monitorcompliance with the treatmentstandards. In such cases, neither testalone is designed to ensure that thetechnology-based treatment standards(which would be expressed as both totalcomposition and TCLP extractconcentration levels) have been met.

5. Nationwide Variance from theEffective Date

Due to the lack of sufficientalternative protective treatment orreccvery capacity to treat certain of thewastes to the applicable treatmentstandards, a national capacity variancewas proposed for several of the wastecodes addressed in the April 8 and May17 proposals. This determination wasbased on a comparison of the volumesof wastes requiring treatment to theamount of treatment capacity availablefor such treatment. Although EPAusually does not require that BDATtechnologies be used to meet theapplicable treatment standards (unlessthe technology is specified as the

treatment standard for the waste in§ 268.42), capacity figures are derivedbased on technologies identified asBDAT, to ensure that adequatetreatment is available to meet thetreatment standards.

In the April 8 notice, EPA proposed atwo-year national variance from theeffective date for K016, K018, KO19,K020, K024, K030, K037, K048-K052,K061, K071, K103 and K104. However,the Agency also noted that new capacitydeterminations would be presented (andthus, these proposed variances would berevisited) in a supplemental proposal(i.e., the May 17 proposal).

In the May 17 notice, EPA proposed atwo-year national variance from theeffective date for one additional wastecode, K106, and for certaincontaminated soils (First Third) thatrequire solids incineration capacity.Also, the Agency revised the April 8proposal, and proposed not to grant avariance for K016, K018, K019, K020,K024, K030, K037, K103, and K104.Therefore, the First Third wastes forwhich a two-year national variancefrom the effective date was proposedare K048, K049, K050, K051, K052, K061,K071 and K106. In addition, the May 17notice proposed a two-year capacityvariance for certain contaminated soilsthat require solids incineration capacity.The variance was proposed for soilscontaminated with First Third wastes,and soils from RCRA and CERCLAresponse actions contaminated withsolvents, dioxins and California listwastes.

Additionally, the May 17 proposalrevisited certain national variancesgranted by previous rulemakings (i.e.,November 7, 1986, 51 FR 40572; and July8, 1987, 52 FR 25760). In light of newcapacity data indicating that sufficientliquid incineration capacity exists toincinerate or thermally combust certainwastes, EPA proposed to rescind thevariances granted for the followingwastes:

(a) Spent solvent wastes identified asEPA Hazardous Waste Nos. F01-F005generated by small quantity generatorsproducing from 100-1,000 kilograms ofhazardous waste per month;

(b) Solvent waste generated fromsection 104 or 106 response actionsunder CERCLA or any RCRA correctiveaction, except where the waste iscontaminated soil or debris; and

(c) Hazardous wastes containingHOCs in concentrations greater than orequal to 1,000 mg/l, except for Californialist HOC contaminated soils.

6. "Soft Hammer" RequirementsIn the April 8 proposal, the Agency

presented its approach to implementing

RCRA section 3004(g)(6), the so-called"soft hammer" provision. This "softhammer" provision applies to First Third(and Second Third) wastes for whichEPA fails to set treatment standards andeffective dates by the statutorydeadlines (for First Third wastes, thisdeadline is August 8, 1988), and appliesuntil May 8, 1990 or until EPApromulgates treatment standards,whichever is sooner.

EPA interpreted the statutoryprovision to apply only to such FirstThird wastes when they are disposed inlandfill and surface impoundment units,and further interpreted the statutorylanguage to require that such disposalunits must meet the minimumtechnological requirements of RCRAsection 3004(o) (double liner, leachatecollection system, and ground watermonitoring, or equivalent performanceas provided in RCRA section 3004(o)(2)).The Agency's approach to the "softhammer" provisions required that thegenerator (or owner or operator) certifythat there is no treatment practicallyavailable that meaningfully reducestoxicity or mobility of the waste andthat, therefore, disposal of these wastesin a landfill or surface impoundmentunit that meets the minimumtechnological requirements of section3004(o) is the only practical alternative.This certification would also apply tothose "soft hammer" wastes for whichtreatment was practically available andwhich have been treated to reducetoxicity or mobility and for which nofurther treatment is practicallyavailable; thus, disposal of the treatmentresiduals in a landfill or surfaceimpoundment unit that meets theminimum technological requirements isthe only alternative.

7. "No Migration" Petition Requirements

The April 8 proposal also includedamendments to 40 CFR 268.6, the "nomigration" petition process. The Agencydid not present its interpretation of thestatutory "no migration" language ofRCRA section 3004 (d), (e), and (g) forsurface disposal units; thisinterpretation will be presented in aseparate rulemaking. The amendmentspresented in the April 8 notice did,however, propose additionalrequirements relating to:

(a) Documenting compliance withother applicable laws;

(b) Submitting monitoring plans;(c) Procedures to be followed if there

are changes in operating conditions afteran exemption is granted; and

(d) Procedures to follow upondetection of hazardous constituentmigration.




SRNo. 159 Wednesday, AU2USt 17. 1988 / Rules and Regulations

8. Comparative Risk Assessment

In both the April 8 and May 17proposals, EPA presented a change in itsapproach to using comparative riskassessment as a decision tool in thedetermination of "available" treatmenttechnologies. In the development ofregulations restricting the land disposalof certain spent solvent and dioxin-containing wastes (November 7, 1986final rule) and California list wastes(July 8, 1987 final rule), comparative riskassessments were conducted to ensurethat technologies which presentedgreater risk than land disposal ofuntreated wastes were not considered inidentifying BDAT. These analyses didnot affect the determinations of whethera treatment was considered "available".

Upon further consideration of theexisting comparative risk analysis, EPAdecided not to utilize this assessment todetermine "available" technologies inthe First Third proposals. EPA did,however, present the possibility ofconducting risk analyses in the future todistinguish between the overall degreeof risk posed by alternative treatmenttechnologies and to makedeterminations concerning the "best"technology based on net risk posed bythe alternative technologies.

9. Modifications to the Framework

In both the April 8 and May 17notices, the Agency proposed severalmodifications to the existing frameworkfor the land disposal restrictions foundin 40 CFR Part 268. EPA'simplementation of the "soft hammer"provision, which restricts the disposal inlandfills and surface impoundments ofFirst Third wastes for which EPA hasnot set a treatment standard, wasproposed in 40 CFR 268.8. Additionalregulatory amendments were proposedto account for the First Third wastes,and especially, "soft hammer" wastes.

EPA also proposed to amend therecordkeeping requirements of § 268.7.The amendments would require storagefacilities to be brought into therecordkeeping system, and also requiregenerators to keep copies of the notices,certifications, and waste analyses thatare associated with each shipment ofrestricted wastes. These changes help toensure that a restricted waste can betracked from the point of generation toits ultimate destination. Additionally,the Agency proposed to set a five-yearlimitation on the time period that suchrecords are required to be retained bythe generator.

In the April 8 proposal, EPA proposedchanges to the regulatory language in§ 268.6 concerning "no migration"petitions that reflect the new

requirements presented in the April 8preamble. In the May 17 proposal, EPAproposed amendments (based on recentcapacity data) to certain variancesgranted in previous rulemakings. TheAgency also proposed certain otherrelatively minor changes to theframework provisions.

II. Summary of Today's Final RuleA. Applicability

Today the Agency is promulgatingtreatment standards and effective datesfor only certain First Third wastes (i.e.,those hazardous wastes listed in 40 CFR268.10, promulgated in May 28, 1986 (51FR 19300) pursuant to RCRA section3004(g)). For those wastes listed in§ 268.10 for which EPA does notestablish treatment standards oreffective dates, the Agency ispromulgating regulations to allow forcontinued land disposal in § 268.8.These so-called "soft hammer"provisions (discussed in detail in sectionIII.C. of today's preamble) apply untilMay 8, 1990, or until treatmentstandards or extensions to the effectivedate are promulgated, whichever issooner. On May 8, 1990, there is anautomatic prohibition on the landdisposal of hazardous wastes listed oridentified prior to the enactment ofHSWA. [Note.-Today's rule-does notestablish treatment standards for any ofthe P- or U-list wastes in § 268.10.However, certain of these wastes maybe subject to the California listhalogenated organic compoundstreatment standards, once the standardsbecome effective.]

Also, this rule clarifies therelationship of the California list finalrule (July 8, 1987, 52 FR 25760) to FirstThird wastes (see section III. E.). Inaddition, this rule clarifies theapplicability of Part 268 Subpart Dtreatment standards to "derived-from"wastes and waste mixtures (see sectionIII. A. 4.).

In addition, the Agency notes that thetreatment standards it is promulgatingtoday are not applicable to First Thirdwastes that are disposed by deep-wellinjection. (See RCRA section 3004(g)(5)authorizing EPA to prohibit "one ormore methods of land disposal" ofscheduled hazardous wastes; in thisrulemaking, EPA is prohibiting disposalin surface units of most of the wastes inthe first third of the schedule; EPA willaddress disposal by deep-well injectionin a later rulemaking.) Wastes that aredisposed by deep-well injection areregulated under 40 CFR Part 148, and theapplicability of today's 40 CFR SubpartD treatment standards to such wasteswill be addressed in a separate

rulemaking. Until that time, First Thirdwastes disposed by deep-well injectionare subject to the "soft hammer"provisions of § 268.8.

B. Waste Analysis and RecordkeepingRequirements

The Agency is today promulgating theapproach to waste analysis-what toanalyze to evaluate the performance ofthe treatment technology-wasproposed. Basically, where BDAT is adestruction or removal technology,waste analysis that is most appropriatefor measuring such destruction orremoval is required-i.e., total wasteanalysis. Similarly, where BDAT isidentified as an immobilizationtechnology (e.g., stabilization), wasteanalysis that most appropriatelymeasures mobilization is required-i.e.,analysis of a waste extract. In caseswhere both technologies are identifiedas BDAT, both types of waste analysesare required. For a more detaileddiscussion, see section III. B.

In addition, the Agency is todaypromulgating a 5-year record retentionrequirement, as proposed in the May 17,1988, Federal Register notice. Thisdiscussion is also included in section III.B. of today's preamble.

C. Treatment Standards and EffectiveDates

Today's final rule establishestreatment standards and effective datesfor many First Third wastes. In sectionIII. A., the Agency identifies the wastetreatability groups by waste codes andidentifies the Best DemonstratedAvailable Technology (BDAT) for eachwaste code. Treatment standardsapplicable to each treatability group arebased on the performance levelsachievable by the corresponding BDATidentified for each treatability group.The Agency strongly reiterates that anytechnology not otherwise prohibited(i.e., impermissible dilution) may beused to meet the concentration basedtreatment standards.

Also, EPA is promulgatingamendments to the existing treatmentstandards for wastewaters containingmethylene chloride (as a spent solvent)generated by the pharmaceuticalindustry, and for California listhalogenated organic compounds. Seesection III. A. for further discussions.

Effective dates are established basedon the Agency's determination ofwhether sufficient protective treatment(or recovery) capacity is available totreat the restricted wastes. Although theregulated community is not required totreat restricted wastes with thetechnology identified as BDAT (where

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treatment standards are expressed asconcentration levels), the Agencygenerally bases its capacitydetermination on the availability of thistechnology, thus helping to ensure thatadequate treatment capacity is currentlyavailable to treat wastes in compliancewith the applicable treatment standard.For a detailed discussion of capacity,refer to section Il. H.

D. "Soft Hammer" Requirements

Section III. C. of today's preamblediscusses the requirements applicable tothose First Third wastes for whichtreatment standards or effective dateshave not been promulgated. Basically,the generator must demonstrate andcertify that there is no practicallyavailable treatment that reduces toxicityor mobility of the waste and thatdisposal of these wastes in a landfill orsurface impoundment unit that meetsthe minimum technological requirementsof RCRA section 3004(o) (double liner,leachate collection system, and groundwater monitoring) is the only practicalalternative. If treatment is practicallyavailable, the generator must certify thathis waste is being treated by the besttreatment (i.e., the treatment whichprovides the most environmentalbenefit) practically available, asindicated in his demonstration. Theresiduals from treatment of "softhammer" wastes remain "soft hammer"wastes, and if disposed in a landfill orsurface impoundment unit, must beplaced in a unit meeting the minimumtechnological requirements of 3004(o)(including section 3004(o)(2) if anappropriate demonstration can bemade).

E. Reinterpretation of RCRA Section

3004(h)(4)

As discussed in section III. D., theAgency is promulgating itsreinterpretation of RCRA section3004(h)(4) as presented in the April 8,1988, proposal. This interpretationeffects the disposal of restricted wasteswhich have been granted an extensionto the effective date (either a nationalcapacity variance or a case-by-caseextension) in a landfill or surfaceimpoundment. Under the interpretationpromulgated today and effective onNovember 8, 1988 (during the interimperiod, the original interpretationapplies), if such restricted wastes aredisposed in a landfill or surfaceimpoundment unit, the individuallandfill or surface impoundment unitmust meet the minimum technologicalrequirements of RCRA section 3004(o).

F. "No Migration" Requirements

As discussed in section III. F., theAgency is today promulgatingamendments to 40 CFR 268.6, the "nomigration" petition process. Asproposed on April 8, 1988, theseamendments cover the demonstrationsrequired in the petition and certain otherrequirements on the owner or operatorof a waste management unit that issubject to a "no migration" variance.

G. Nonrulemaking Procedures for Site-Specific Variances From the TreatmentStandard

The Agency is promulgatingamendments to the existing 40 CFR268.44 to modify the procedures forobtaining site-specific variances fromthe treatment standard. This action istaken in response to commenters'request for a more streamlinedprocedural mechanism for obtaining avariance from the treatment standard.EPA believes that, in certain cases,informal rulemaking are neither requirednor warranted, and that a morestreamlined procedure for obtaining avariance from the treatment standard isjustified. This approach is discussed inmore detail in section III. K. of today'spreamble.

III. Detailed Discussion of Today's FinalRule

A. Determination of Treatability Groupsand Development of TreatmentStandards

1. Waste Treatability Groups

For the First Third wastes, EPA usedthe individual listed waste codes as thestarting point for developing wastetreatability 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 by similar industries fromsimilar processes. EPA believes thatsuch groupings can be made because ofthe high likelihood that the wastecharacteristics which affect treatmentperformance will be similar for thesedifferent waste codes. This conclusion isexplained in more detail in the relevantbackground document for eachparticular waste code.

The treatment standards in today'srule generally contain concentrationspresented constituent by constituent for"wastewaters" and for"nonwastewaters". The treatmentstandards apply to the wastes as

generated as well as all of the residualwastes generated in treating the originalprohibited waste. See RCRA section3004(m)(2) indicating that treatmentstandards apply both to wastes and totreatment residuals therefrom. Thus, forexample, all K1l and K102 wastes(including the solid residuals generatedfrom treating K101 and K102) wouldhave to meet the treatment standardsfor nonwastewaters and allwastewaters (including those generatedfrom treating these wastes) would haveto meet the treatment standards forwastewaters. For the purpose ofdefining the applicability of thetreatment standard in this rule, theAgency defines wastewaters as wastesthat contain less than 1% total organiccarbon (TOC) and less than 1% totalsuspended solids (i.e., total filterablesolids) except for those wastesidentified as Fool, F002, F003, F004, and/or F005 where the Agency indicated adifferent definition of the solventwastewater treatability group (see 51 FR40579 for the definition of a solvent-water mixture). Those wastes that donot meet this definition are consideredto be nonwastewaters. A facility is notallowed to dilute or perform partialtreatment on a waste in order to switchthe applicability of a nonwastewaterstandard to a wastewater standard orvice versa.

However, EPA wishes to emphasizethat where a waste that consistsprimarily of water (such as a leachate)is classified as a nonwastewater solelyby its filterable solids content (i.e., totalsuspended solids (TSS) levels), thewaste can be subjected to dewateringtechniques to remove the filterablesolids. Treatment standards fornonwastewaters are then applicable tothe filtered solids. The filtrate is thensubject to the treatment standards forthe wastewaters, assuming that thefilterable solids content has beenreduced to less than one percent byweight. These standards are applicableif the wastes are to be placed in landdisposal units, according to theappropriate provisions of today's rule.

2. Identification of BDAT

A detailed discussion of the Agency'sgeneral methodology for establishingBDAT standards is provided in 51 FR40572 (November 7, 1986). Section III. A.of today's preamble discusses thespecific application of the methodologyto the First Third wastes, and provides asummary of some of the principalelements of the BDAT methodology.

Consistent with the generalmethodology, EPA first determinedwhich technologies were

Federal Register / Vol. 53,




"demonstrated" for a particulartreatability group. EPA then screenedthe available treatment data for aparticular treatability group with regardto the design and operation of thesystem, the quality assurance/qualitycontrol analyses of the data, and theanalytical tests used to assess treatmentperformance. This screening step isconsistent with EPA's promulgatedapproach in the November 7, 1986,rulemaking for solvent waste codesF001-F005. Also, this screening steprecognizes the fact that differentperformance measures may beappropriate depending on thetechnology used (e.g., total constituentanalysis for destruction of organics byincineration technologies versus TCLPanalysis for immobilization of metalconstituents by stabilizationtechnologies). EPA was able toemphasize the design and operation ofthe treatment system for the First Thirdwastes because its field tests have beenmodified to gather detailed data tosupport these analyses.

After the initial screening test, EPAadjusted all treated data values basedon the analytical recovery obtained inorder to take into account analyticalinterferences associated with thechemical makeup of the treated sample.For example, a treated residual datapoint of 0.2 mg/kg with an analyticalrecovery of 50 percent would beadjusted to 0.4 mg/kg.

After adjusting the data, EPA thenaveraged the performance levelsachieved for the various treatmentoperations (for which the Agency hadcomplete data) and compared the meanvalues using the analysis of variancetest (ANOVA), as described in theNovember 7, 1986, preamble (see 51 FR40591), to determine if one technologyperformed significantly better. Ingeneral, where one technologyperformed better, it was determined tobe "Best". If this technology was alsodetermined to be "Available" (i.e., it iscommercially available and providessubstantial treatment), then thetechnology was selected as the BestDemonstrated Available Technology(BDAT). In cases where EPA only hasdata on one technology, but is aware ofother demonstrated technologies, EPAused its engineering judgment todetermine that these other technologieswould not be expected to significantlyimprove the level of performance.

3. Compliance with PerformanceStandards

Treatment standards promulgated intoday's rule are performance standardsreflecting the performance achieved by"BDAT". As such, compliance with

these standards requires only that thetreatment level be achieved prior to landdisposal. It does not require the use ofany particular treatment technology.While dilution of the waste as a meansto comply with the standard isprohibited, wastes that are generated insuch a way as to naturally meet thestandard can be land disposed withouttreatment. With the exception oftreatment standards that prohibit landdisposal, all treatment standardsproposed today are expressed asconcentration levels either in the waste(§ 268.43) or in an extract of the waste(§ 268.41).

It is important to note that severalcommenters misinterpreted EPA'sposition on compliance with theperformance standards and theidentification of a technology as thebasis for BDAT. The specifictechnologies identified as the basis forBDAT for each waste code are simplythose technologies which EPA utilized todevelop the waste-specific performancestandards. A comparable methodologyexists under the Clean Water Act inestablishing BPT, BAT, PSES, NSPS, andPSNS effluent limitation guidelines andstandards. Any technology orcombination of technologies nototherwise prohibited (i.e., impermissibledilution) can be used to achieve thesestandards. EPA has not, in this FirstThird final rule, prohibited the use ofany other applicable treatment orrecycling technology unless thattechnology is considered to be landdisposal.

In today's rulemaking, EPA has usedboth total constituent concentration andTCLP analyses of the treated waste asmeasures of technology performance.For all organic and cyanide constituents,EPA is basing the treatment standardson the total constituent concentrationfound in the treated waste. EPA basedits decision on the fact that technologiesexist to remove or destroy theseconstituents. Accordingly, the bestmeasure of performance would be theextent to which the various organiccompounds have been removed ordestroyed (as measured by the totalamount of constituent remaining aftertreatment). The legislative historyemphasizes the desirability of actuallydestroying organic hazardousconstituents [Vol. 130, Cong. Rec. S9179(daily ed. July 25, 1984)]. [Note.-EPA'sland disposal restrictions for solventwaste codes F001-F005 and dioxinwaste codes F020-F023, F026-F028 (51FR 40572) use the TCLP value as ameasure of performance. At the timethat EPA promulgated the treatmentstandards for the solvents and dioxins,

useful data were not available on totalconstituent concentrations in treatedresiduals and, as a result, the TCLP datawere considered to be the best measureof performance.] Where the Agency hasbased treatment standards on removal/recovery or destruction, whether metalsor organics, the treatment standardsthus are based on total waste analysis.

In cases where treatment standardsfor metals are based on stabilization,EPA is using the TCLP as the measure ofthe treatment technology's performance.The Agency's rationale is thatstabilization is meant to chemically andphysically minimize the mobility of themetals in the waste and that the TCLPtest is specifically designed to measurethe mobility of the hazardousconstituents. For wastes wheretreatment standards are based onsequential treatment processes due tothe presence of organics and metals, thewaste must meet both total constituentconcentrations for organics and TCLPconcentrations for metals prior to landdisposal.

In both the April 8, 1988 and the May17, 1988 proposed rules for the FirstThird wastes, the proposed treatmentstandards were reported with a varyingnumber of significant figures. The finalstandards in today's rule have beenadjusted and rounded off to a maximumof two significant figures (in some cases,a particular standard may have only onesignificant figure). EPA did not intendthat any greater accuracy be achievedother than that which is attainablethrough the standard analytical methodsemployed to develop the treatment data.

4. Applicability of Treatment Standardsto Mixtures and Other "Derived-From"Residues

In a number of instances in today'srule, BDAT consists of an operation orseries of treatment operations whichgenerate additional waste residues. Forexample, BDAT for wastes K101 andK102 is based on incineration followedby metals (ash) stabilizationIncineration generates two residuesrequiring treatment, namely the ashresidues and the scrubber waters.Treatment of the scrubber waters (toremove metals) may generate furtheradditional inorganic residues which alsomay require stabilization. Ultimately,these additional wastes may requireland disposal and must, therefore, meetthe same standards as the stabilized ashresidues. With respect to theseadditional wastes, the Agency wishes toemphasize that all of the tesidues fromtreatment of the original listed wastesare considered to be the listed waste byvirtue of the derived-from rule contained




in 40 CFR Part 261.3(c)(2). Consequently,all of the wastes generated in the courseof treatment would be prohibited fromland disposal unless they satisfy theapplicable treatment standard or meetone of the exceptions to the prohibition.

The Agency has not performed testsin all cases on every waste that canresult from every part of the treatmenttrain. However, the Agency's treatmentstandards are based on treatment of themost concentrated form of the waste.Consequently, the Agency believes thatthe less concentrated wastes generatedin the course of treatment can be treatedto these standards.

Today's treatment standards alsoapply to waste mixtures; i.e., mixtures ofdifferent waste streams. As the Agencyhas repeatedly stated in previouspreambles, the more stringent standardapplies in cases where a waste mixturehas two or more applicable treatmentstandards. The Agency believes thatsuch wastes can be treated to the meetthe treatment standards applicable tothe underlying wastes for severalreasons. Waste mixtures commonlyresult in a waste in which individualconstituents are less concentrated than

- in the original wastes. Also, inestablishing treatment standards, theAgency allows for a reasonable amountof variability in the generation andtreatment of the waste. Finally, whileEPA believes that waste mixtures canbe treated to meet the treatmentstandards, the rules do contain aprocedure that allows a petitioner togain a variance from the treatmentstandard by demonstrating that hiswaste cannot be treated to the levelspecified in the rule (see 40 CFR 268.44).To date, the Agency has not received apetition for such a variance, indicatingthat the treatment standards currently ineffect are achievable.

The Agency, however, has determinedthat one class of waste mixtures-mixedhazardous/radioactive wastes-shouldnot be included in the First Third and isamending § 268.12 (the Third Third) tomove such wastes to the final third ofthe scheduled wastes. Therefore, thesewastes will not be prohibited from landdisposal until May 8, 1990. The Agencyis taking this action based on therelatively small volumes of such wastesbeing generated; while the individualhazardous wastes may be generated inlarge volumes, the mixed hazardous/radioactive wastes are not. The Agencynotes that this action only affects FirstThird wastes; spent solvents, dioxinsand California list wastes that aremixed with radioactive wastes aresubject to the applicable treatmentstandards when the standards are

effective. [Note.-As discussed insection III. C. 3. a., the Agency believesthat the schedule is absolutelycommitted to its discretion, and that theschedule of prohibited wastes thereforecan be amended without notice andcomment.]

EPA discussed in detail in the May 17,1988, preamble the principle thatresidues from managing listed wastes, orthat contain listed wastes, are coveredby the prohibition for the listed waste(53 FR 17586). EPA made the followingpoints:

(1) Hazardous waste listings areretroactive, so that once a particularwaste is listed, all wastes meeting thatdescription are hazardous wastes nomatter when disposed. (As discussedbelow, this does not mean that suchwastes are necessarily subject toSubtitle C regulation, only that they arehazardous wastes.) For example, if onAugust 9, 1988, EPA were to listdistillation bottoms from production ofX as a hazardous waste, all suchdistillation bottoms would be hazardouswastes, regardless of when they are orwere generated. They are the thing thatis listed.

(2) Residues derived from treating,storing, or disposing of these wastes aretherefore also hazardous by virtue of thederived-from rule (§ 261.3(c)(2)), themixture rule, or in some cases, becausethe waste itself is still found in thematrix (see § 261.3(d)(2)).

(3) Consequently, for purposes of theland disposal restrictions program,residues from managing First Thirdwastes, listed California list wastes, andspent solvent and dioxin wastes are allconsidered to be subject to theprohibitions for the underlying listedhazardous wastes.

Public comment centered on theimplications of these principles withrespect to management of leachate thatderives from management of listedhazardous wastes. The Agencyindicated that leachate could be affectedby these principles: The derived from-rule explicitly mentions leachate as atype of derived-from residue that iscovered by that rule, and since thestatute includes "leaking" within thedefinition of "disposal", leachate leakingfrom listed wastes is therefore derivedfrom the disposal of these wastes. Asexplained more fully below, however,certain of the commenters' concernsregarding leachate (for example,implications for permitting of inactive orsubtitle D disposal units) appear to bemisplaced.

Commenters also argued that in manycases, leachate could not be treated tothe BDAT treatment levels because it is

a different type of waste from the one onwhich the treatment standards werebased. Commenters submitted certaindata to support these assertions.Commenters also made the point thatsince leachate can contain all or most ofthe listed waste codes, and the Agencyhas indicated that waste matricescontaining a number of prohibitedwastes must be treated to meet the moststringent standard for every wastecontained in the matrix, it would behard to design a treatment system forleachate since it would not be clearwhat the ultimate treatment standardwould be until EPA finishes developingtreatment standards for all of the listedhazardous wastes. A variation of thiscomment was that treatment standardsfor different wastes contributing toleachate could be incompatible, makingit impossible to treat all constituents tothe applicable treatment standards.Commenters also stated that EPA hadnot accounted for treatment of leachatein its capacity estimates. A number ofcommenters made the further point that,especially with respect to subtitle Dnon-hazardous waste units, EPA'sreading tended to penalize personsvoluntarily collecting and treatingleachate who had kept accurate historicrecords of what wastes went into thedisposal unit. Finally, severalcommenters suggested that leachateshould be viewed as a separatetreatability group and that the Agencyshould develop separate treatmentstandards for it.

EPA first addresses those commentswhich disputed the Agency'sinterpretation of its own rules. TheAgency will then address thosecomments questioning the applicabilityto leachate and other derived-fromwastes of treatment standards basedupon treatment of the waste from whichthe waste is derived.

a. Retroactivity of Waste Listings. Afew commenters disputed the Agency'sreading that hazardous waste listingsare retroactive; that is, all wastesmeeting the listing description arehazardous regardless of when they weredisposed. EPA believes this point to benearly self-evident: a waste either doesor does not match a listing description.The time at which a waste was disposeddoes not affect what that waste is. Spentsolvent still bottoms disposed of in 1979(before Agency action listing thesewastes as hazardous) are as much spentsolvent still bottoms as those disposedin 1981 (after the listing took effect).

In addition, there are a whole series ofstatutory provisions that give retroactiveapplication to hazardous waste listings.Section 103(c) of CERCLA, enacted in



31148 Federal Register / Vol. 53, N.19/Wdedy uut1,18 ue n euain

November 1980 and implemented byrule in April 1981, provides that:

(A)ny person who owns or operates or whoat the time of disposal owned oroperated * * * a facility at which(hazardous wastes identified or listed underRCRA section 3001] are or have been stored,treated, or disposed of shall, unless suchfacility has a permit issued under subtitle Cof [RCRAJ, notify the Administrator * * * ofthe existence of such facility. * * 42 U.S.C.9603(c).

This language indicates that wastesthat have been disposed in inactivefacilities are still RCRA hazardouswastes once they are identified or listed,and that owners and operators of thefacilities where the hazardous wasteshad been disposed are required to notifythe Agency of the wastes' existence. Infact, by the terms of the statute, theprovision applies only to hazardouswastes at inactive facilities--facilitieswith the waste which ceased managingthe waste before it was identified orlisted-because any facility with interimstatus or a permit is explicitly exemptedfrom the CERCLA notificationrequirement. EPA's implementation ofthese rules followed this literal statutorylanguage and thus required all inactivefacilities still holding hazardous wastethat the Agency had since identified orlisted to notify EPA (46 FR 22146, 22149;April 25, 1981). Thus, EPA and Congressindicated that the Agency's listingregulations applied retroactively tohazardous wastes in inactive units, i.e.,to units that ceased active managementbefore the effective date of the subtitleC regulations.

EPA, in its May 17, 1988 notice, alsocited RCRA sections 3004 (d)[3) and(e)(3) as further support for theproposition that hazardous wastelistings apply to wastes whosemanagement ceased before the date ofthe listing. These provisions provide thatcontaminated soil and debris thatcontain listed spent solvent or dioxin-containing hazardous wastes (or certainother wastes mentioned in section3004(d)(2)) generated by a responseaction under section 104 or 106 ofCERCLA, or by corrective actionrequired under RCRA section 3004(u),remain subject (on a slower timetable)to the land disposal restrictionsprovisions. RCRA section 3020(b) is asimilar provision. It provides thatgroundwater that is contaminated withhazardous waste generated by aCERCLA response or a RCRA correctiveaction is not subject to an otherwise-applicable prohibition on disposal incertain types of underground injectionwells (provided that the contaminatedgroundwater is managed in accordancewith certain specified standards].

Commenters argued that theseprovisions do not define what is ahazardous waste and therefore do notshow that listed wastes are necessarilyaffected by these provisions. Theseprovisions were added to the statute soas not to impede the pace of certainongoing cleanup actions (See S. Rep. No.284, 98th Cong. 2d Sess. 21). Most of thewastes from these cleanup actions weredeposited at the sites before 1980. Forexample, all of the dioxin-containingwastes at the Missouri dioxin sites weredeposited before 1980 (well before thesewastes were listed in 1985). EPAbelieves that the obvious reading ofthese provisions is that Congressconsidered the wastes being removedfrom these actions to be listed wastes-the dioxin-containing wastes at theMissouri sites are good examples-andtherefore adjusted the land disposalrestrictions effective date for thesewastes accordingly (or in the case ofsection 3020(b), accommodated certaintypes of cleanups involving reinjectionof hazardous wastes). The Agency doesnot believe it makes sense to assume, asthe commenters did, that theseprovisions apply only to the smallpercentage of CERCLA and correctiveaction response wastes that exhibit aRCRA characteristic or are listed byname (i.e., "leachate from Missouridioxin sites"]. (One commenter statedmistakenly that EPA actually had listeddioxin-containing soil and debris; thedioxin listings, F020-F023, F026--F028,apply only to process wastes and to ashfrom incinerating contaminated soil.EPA indicated in the preamble to theselistings that contaminated soil and othermixed and derived from residues wouldbe affected by the listings (see 50 FR1994, Jan. 14, 1985]. This is by virtue ofthe mixture and derived from rules, orbecause the listed waste would becontained in a matrix like soil.]

EPA believes therefore that thehazardous waste listings can beretroactive. Thus, wastes derived fromtreating, storing, or disposing of thesewastes likewise are hazardous, as aremixtures of these wastes and other solidwastes. For land disposal restrictionspurposes, this means that these residuescould become subject to the landdisposal restrictions for the listed wastefrom which they derive if they aremanaged actively after the effectivedate of the land disposal prohibition forthe underlying waste.

b. Derived-From Wastes Have theSame Waste Code as the Waste FromWhich They ore Derived. EPA disagreeswith those commenters that said thatderived-from or mixed wastes do nothave the same waste code as the wastefrom which they are derived, are mixed

with, or that they contain. The derived-from and mixture rules state, in essence,that listed wastes remain hazardousuntil delisted. What other hazardouswastes could these listed wastes be ifnot the waste from which they arederived or mixed? (Indeed, how were allof these wastes covered under the landdisposal restrictions schedules in§ § 268.10-288.12 if not under the wastecodes, since the schedule nowhere listsleachate or other derived-from residualsseparately.] (Cf. OLeary v. Moyer'sLandfill, Inc., 523 F. Supp. 642, 656 (E.D.Pa. 1981) ("A hazardous waste does notlose that description because it is mixedwith some other waste, or is found inleachate, 40 CFR261.3(a}[sic](2{ii) * * *; indeed,leachate from hazardous waste is animportant target of RCRA.")) TheAgency's delisting regulations make thispoint by requiring petitioners withmixed or derived-from wastes to makethe same demonstration that a delistingpetitioner would make for theunderlying waste (40 CFR 260.22(b)). Thedelisting petitioner also may prove thatthe waste as a whole is not hazardous,as can any delisting petitioner withrespect-to any hazardous waste. Indeed,there have been dozens of delistingpetitions filed to delist residues derivedfrom treating or disposing of multiplewastes, and it is clear from thesepetitions and Agency action that theseresidues are deemed to be listed wastescovered by the original waste codes(see, e.g. 51 FR 41324; November 14, 1986(delisting Envirite treatment residuesfrom treating multiple wastes, statingthat the delisting is for "treatmentresidue (EPA hazardous waste numbersF006, F007, F008, FO09, Foil, F012, F019,(002, K003, K004, K005, K006, K007,

K008, and K082)").EPA also believes that section

3004(e)(3) confirms this position bystating that soils and debriscontaminated with the listed solventand dioxin wastes become subject to theprohibitions for the listed wastes eventhough they are not the waste itself, butrather a type of residue frommanagement of the waste. In this regard,EPA notes that other land disposalrestrictions provisions likewise equateprohibited wastes and residues fromtheir management. Section 3004(m)(2)thus states that when a prohibited wastehas been treated to the level or by themethod specified by EPA (pursuant tosection 3004(m)(1)), then "such waste orresidue thereof" is no longer prohibitedfrom land disposal.

One commenter also stated,incorrectly, that the Agency itself doesnot follow this principle in its own




Federal Register / Vol. 53, No. 159 / Wednesday, ;August 17, 1988 / Rules and Regulations 31149

CERCLA program. In fact, when EPAidentifies a waste at a CERCLAre.-ponse site as deriving frommanagement of a listed waste, theresidue is considered to be the listedw~ote. EPA in fact considered sechvcstas in its capacity estimates for eachof the waste prohibitions adopted orproposed to date, surely an unnecessaryaction unless such residues arepro' Mbited by virtue of the prohibitionfor the listed waste (see, e.g. 51 FR40311; November 7, 198).

The same commenter assertedatroneously that EPA had stated thatsolvent mixtures were not covered bythe scction 3004(e) prohibition on listedsolvent wastes. EPA actually stated thatcectain solvent formulations containing1C percent or more solvent ingredientswhich were listed as hazardous for thefirst time on December 31, 1985, werePot covered by the prohibition for FO0-F985 wastes (51 FR 40584; November 7,1986). This statement has nothing to dowith mixtures of hazardous waste spentsolvents and other solid wastes, whichare covered by the section 3004(e)(3)prohibition. (Indeed, when EPA initiallyproposed the solvent prohibition, manycommenters criticized the Agency'scapacity estimates for not taking intoaccount mixture and derived-from ruleresiduals containing these listed wastes,all of which residues were covered bythe prohibition and which thereforeneeded to be assessed (51 FR 40311;Nov. 7,1985). EPA's final capacityestimates for the solvent prohibition ruletherefore included all of these residues.)

c. Consequences of EPA'sInterpretation are Exaggerated.Commenters expressed significantconcerns that EPA's interpretationwould lead to RCRA permitting of allinactive hazardous waste sites thatcollect leachate. They believed that ifleaching is considered to be a form ofdisposal (which it is, since leaking isoccurring, see RCRA section 1001(3)),then units from which leachate isleaking are thereby subtitle Cmanagement units subject to all of theRCRA requirements.

This reading is not correct. Thepermitting requirement under RCRAsection 3005(a) applies to new andexisting disposal facilities. "Disposalfacility" is defined in the rules as "afaciity * * * at which hazardouswaste is intentionally placed into or onany land or water, and at which wastewill remain after closure" (see § 250.10).Section 3005(a) prohibits the operationof such facilities without a permit afterthe effective date of the permittingregulations, November 19,1980. Thus,only facilities where hazardous waste is

intentionally placed into land or waterafter November 19,1980 require a RCRAdisposal permit. Collection of hazardousleachate at otherwise inactive unitsconsequently does not activate the unit.

A second concern dealt with subtitleD faciities that generate leachate.Commentars expressed concern thatbecause these landfillo all acceptedsmall quantity generator listedhazardous wastes, all leachate fromthese facilities was thereby hazardousby the darived from rule. EPA, howver,does not read the derived from rule asapplying to small quda-tity generatorhazc:d:ds vrwc:s. Ahlicuag th e rulesare not ex;l"Ot cn thL point, the Agencyviews this exemption, like othercomparable provisions such as thehousehold waste exclusion, as applyingcradle-to-grave so that residues frommanaging the waste retain theexemption or exclusion. In this regard,the rules are explicit that the mixturerule does not apply to mixtures of smallquantity generator wastes and solidwastes (see § 261.51h)). EPA views thederived from rule as similarlyinapplicable.

dL EPA 's Reading Creates NegativeEnvironmental Incentives. EPA issensitive to the comment that its readingpenalizes facilities that collect theirleachate and have accurate, historicrecords of what wastes were acceptedat the units. However, this assertion isnot completely correct. Facilitiescollecting hazardous leachate canmanage the leachate in such a way asnot to trigger subtitle C requirements(including the land disposal restrictions)by managing the leachate in tanks atfacilities subject to regulation under theClean Weter Act (see § 264.1(g)(6)).Consequently, the reading most directlydiscourages subsequent management insurface impoundments, a reasonableoutcome given the statutory antipathyfor these devices (see RCRA sectionI002(b)(7)). Indeed, the statute evenallows otherwise prohibited hazardouswastes to be managed in particulartypes of surface impoundments withoutfirst meeting pretreatment standards(although unlike treatment tanks, suchimpoundments are regulated units) (seeRCRA section 3005(j)(11)), so what theAgency's interpretation actuallydiscourages is management in surfaceimpoundments that do not satisfy thesection 3005(j)(11) standards. Inaddition, since the derived-from rulemerely shifts the burden of proving thata derived from waste is not hazardous,truly non-hazardous leachate derivedfrom listed wastes can be delisted.There have, in fact, been delistingapplications filed to delist leachate

derived from listed hazardous wastesthat were disposed before 1980.

Finally, EPA does not accept theargument that facilities are better off ifthey do not collect contaminatedleachate, and so will discontinuevoluntary collection. Continued feleaueof such leachate exposes the facility "oCERCLA liability, common law tortliability, and possibly criminal liabilityunder intentional endangermentstatutes. What EPA's reading does is toensure that once hazardous derived-from residues are collected, theirsubsequent management will becontrolled under the statute ,i 'jr~rud tocontrol management of hazcrdk ,'swaste. EPA has no other statuf-y toolfor assuring prospectively that propermanagement will occur. In fact, in theend, what EPA finds most troubling inthe commenters' arguments is thathazardous residues from inactive sitescould be withdrawn and managedwithout regard for RCRA requirements.Thus, for example, under thecommenters' position, leachate fromsites where chlorophenoxy pesticideresidues were disposed could becollected and taken to non-subtitle Cunits (unlined impoundments, forexample) because the leachate wouldnot be considered to be a hazardouswaste. This is because the waste fromwhich the leachate is derived wasdisposed before the effective date of thelisting, and the leachate does not exhibitany of the hazardous wastecharacteristics. Indeed, under some ofthe commenters' arguments, collectingand managing the waste itself at thesesites (rather than the leachate derivedfrom the waste's disposal) would nottrigger subtitle C requirements. EPAdoes not find this result to be in accordwith statutory policies or the languageof the regulations.

e. Whether Leachate Can Meet theTreatment Standards for the WastesFrom Which It Is Derived. Commentersalso argued that landfill leachate couldnot typically be treated to meet thetreatment standards in the rule, Theyalso maintained that leachate (or atleast leachate from commercial wastedisposal facilities) should have its owntreatability group reflecting itssignificant difference from the wastesfrom which it is derived.

EPA stated at proposal that althoughit is correct that EPA's treatmentstandards are based on treating singlewastes, leachate that is derived fromdisposal of these wastes could betreated to meet the treatment standardsbecause leachate typically is more dilutethan the waste from which it is derived.Thus, for example, if the original



31150 Federal Register / Vol. 53, No. 159 I Wednesday, August 17, 1988 / Rules and Regulations

wastewater contains 200 ppm ofmethylene chloride, while leachate fromdisposal of the waste contains 5 ppm ofmethylene chloride, the leachate couldbe treated to meet a standard based ontreating the waste with 200 ppmmethylene chloride. EPA also noted thata treatability variance was available toaccommodate those situations whereleachate could not be treated to meetthe treatment standards (53 FR 17586;May 17, 1988).

Commenters assert, however, thatcommercial leachate is not just from onewaste, but from many. Even so, EPA stillbelieves that leachate, even frommultiple waste codes, can be treated tomeet the underlying wastewatertreatment standards because it containslower concentrations of the constituentsof concern than the wastes on which thetreatment standards are based. Nor hasthe Agency seen evidence that leachatetypically contains interfering agents, notfound in the original wastes, thatimpede treatment performance. EPA hascarefully examined the data submittedduring the public comment period, andfinds that it essentially confirms theAgency's statements at proposal. Thatis, the leachate has comparable or lowerlevels (in some cases, orders ofmagnitude lower) than the wastes onwhich treatment standards are based.None of the data suggest that leachatefrom commercial facilities is somehowso exceptional that it cannot be treatedto meet the standards. (Indeed, of thesedata, many of the samples would meetthe treatment standards as generatedand so would not require treatment atall.) The Agency expects that wheregroundwater contaminated withleachate is being treated in pump-andtreat operations, the standards can bemet with existing technology. Thetreatability variance in section 268.44also is available in thote c.&es whereleachate proves to be untreatable to theapplicable standard for the prohibitedwastes that it contains.

EPA also has carefully consideredcomments that leachate deriving frommultiple waste codes will be subject toconflicting, multip!e treatmentstandards. Examples contained in thepublic comments were of leachatederived from wastes whose treatmentstandards were based on both oxidationand reduction technologies. Anotherexample was of leachate derivedpartially from wastes whose treatmentstandards require total constituentanalysis (because treatment is based ondestruction of organics), and partiallyderived from other wastes whosetreatment standards require TCLPanalysis (for fixation of inorganics). EPA

does not find these examplespersuasive. Waste constituents can betreated sequentially in treatment trainsto avoid the types of allegedincompatibilities. For example, ifleachate contains both cyanide andhexavalent chromium, cyanide can beoxidized in a tank, and hexavalentchromium can be reduced andprecipitated afterwards in a separatetank. Leachate containing both organicsand inorganics can be treated in atreatment train with organics beingstripped, followed by metals beingprecipitated. Many of the treatmentstandards for First Third wastes are infact based upon treatment trains ofthese types.

Several commenters complained ofthe unfairness of planning to meet a"moving target" of treatment standards.That is, they maintained that becauseleachate contains (or potentiallycontains) many or even most of thelisted waste codes, they will not knowuntil completion of the land disposalrestrictions in 1990 what ultimatetreatment standards for leachate will be,given that the leachate will have to betreated to meet the most stringent levelfor the constituents for which there areoverlapping treatment standards. EPAbelieves, however, that ultimatetreatment standards for wastewaterswill not differ to any great degree.Wastewater treatment technologies arerelatively standardized, and achieveperformance results that are similarunless the matrices are exceptionallycontaminated or contain highconcentrations of interfering agents.Based on the data presently available,EPA has not found this to be the casewith leachate, even leachate fromcommercial hazardous waste landfills.Thus, EPA believes that conventionalwastewater treatment technologies ortreatment trains-for example, sometype of stripping technology followed bya type of chemical precipitation-willgenerally be able to achieve treatmentstandards for leachate. To the extentthis becomes an issue as EPA proposestreatment standards for the remaininghazardous wastes, commenters canpresent data showing that conventionalwaste treatment systems for leachateare unable to achieve treatmentstandards. No such data were presentedwith regard to leachate containingsolvents and First Third prohibitedwastes, in the Agency's view. Sincethese wastes tend to be the mostcontaminated (see the statutoryprioritization of solvents and theAgency's prioritization of First Thirdwastes based on RCRA section3004(g)(5)), EPA believes it reasonable

that subsequent treatment standardswill be comparable to those alreadyadopted.

Finally, regarding comments on thecapacity to treat leachate, mostcollected leachate is presently treated ina way that does not even implicateRCRA, and so does not create a demandon available capacity. Thus, as notedabove, tanks that treat leachate (andany other wastewater) at facilitiessubject to regulation under the CleanWater Act's NPDES or pretreatmentprograms are exempt from almost allRCRA regulation. Most leachate istreated in tanks, according to commentsand the Agency's own information, andso does not require additional treatmentcapacity. Commenters noted that somefacilities have impoundments that areused to perform polishing type treatmentof leachate, but EPA believes, based onthe information presented, that leachatecan be treated to meet treatmentstandards before being placed inimpoundments so that impoundedleachate need not create demands onexisting treatment capacity.

5. Transfer of Treatment Standards

In today's rule, some treatmentstandards are not based on testing of thetreatment technology on the specificwaste subject to the treatment standard.Instead, the Agency determined that theconstituents present in the waste can betreated to the same performance levelsas observed in other wastes for whichEPA has previously developed treatmentdata. EPA believes transferringtreatment performance from tested tountested wastes is valid technically.

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 the industries aresimilar, but other aspects of productionprocesses may be dissimilar, EPA moreclosely examines the wastecharacteristics prior to concluding thatthe untested waste constituents can betreated to levels associated with testedwastes.

EPA undertakes a two-step analysiswhen determining whether wastesgenerated by different processes can betreated to the same level ofperformance. First, EPA reviews theavailable waste characteristic data toidentify those parameters which areexpected to affect treatment selection.EPA has identified some of the mostimportant constituents and otherparameters needed to select the





treatment technology appropriate for agiven 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 andconstituent can be found in the BDATbackground documents for each wasteor waste treatability group.

Several commenters stated that theydo not believe that standards for certainconstituents could be transferred tocertain waste codes. EPA's response tothese comments are addressed in thesections of today's preamble thatdiscuss that particular waste code ortreatability group.

6. No Land Disposal as the BDATTreatment Standard

EPA is establishing "no land disposal"as the treatment standard for several ofthe First Third wastes. This standard isanalogous to the zero dischargestandard established as Best AvailableTechnology (BAT) under the CleanWater Act's effluent guideline program.It indicates that after examiningavailable data, the Agency hasidentified that: (1) The waste can betotally recycled without generating aprohibited residue; or (2) the waste isnot currently being land disposed; or (3]the waste is no longer being generated.

Several commenters providedinformation that for certain wastes thatone or more of these premises is invalid.In those cases, the Agency will notfinalize the treatment standard of "noland disposal", and will not establish atreatment standard for that waste intoday's rule. The soft hammerprovisions, as discussed elsewhere inthis preamble, will therefore apply forthose wastes or subcategories of wastes.EPA intends to develop treatmentstandards for these wastes prior to May8, 199D.

For those nonwastewaters for whichno specific comments were received

refuting the validity of EPA's basis for"no land disposal", EPA haspromulgated the standard as final. EPAhas not promulgated a "no landdisposal" standard as final for anywastewaters. Since First Third wasteshave been historically managed in landdisposal units, EPA recognizes that thepotential exists for the generation ofleachate from these land disposal units.Based on waste characterization datasubmitted by several commenters,leachates appear to meet EPA'sdefinition of wastewaters. Therefore,EPA believes that constituent standardsmust be established for wastewaters(i.e., leachates) and that a "no landdisposal" is not justified based on thepremise of "no generation". It isimportant to point out that this standardis not intended to imply that the wastewas so extremely hazardous that itcould not be safely land disposed orhandled, but rather that alternativeforms of management exist for them.The Agency believes that where it hasfinalized a treatment standard of "noland disposal", there should either be nogeneration of this type of waste or thatsuch generated wastes can be handledin a manner that will not require landdisposal. In cases where a waste isgenerated and the basis for the "no landdisposal" standard was that the wastewas not being generated, or where awaste is significantly different than thewaste examined by EPA (e.g., a specificspill residue), a person may petition theAgency for a treatment standardapplicable to their waste using theprovisions of § 268.44. Prior to May 8,1990, the Agency could also, through arulemaking, make the "soft hammer"provisions of § 268.8 applicable in thesesituations.

7. Waste Specific Treatment Standards

This section describes thedevelopment of BDAT treatmentstandards for all of the First Thirdwastes covered by today's rule.

a. Revision of BDAT TreatmentStandard for Methylene Chloride inWastewaters from the PharmaceuticalIndustry Listed as FOOl, F002, F003, F004and/or F005. Today's rule promulgatesthe proposed revision to the treatmentstandard for methylene chloride inF001-F005 wastewaters from thepharmaceutical industry. Where EPAhas set a treatment standard, it is notprecluded from revising that standardafter the statutory date provided thatrulemaking procedures are followed.RCRA section 3004(m)(1) states

specifically that treatment standards areto be revised as appropriate. EPAbelieves that revision of this standard atthis time is appropriate and timely, sincethe effective date for compliance willoccur on November 8, 1988.

One commenter suggested that theAgency does not have adequateinformation to justify using treatmentdata from an agricultural chemicalfacility in determining the treatability ofwastewaters from pharmaceuticalfacilities. In particular, the commenterbelieves that concentrations ofmethylene chloride, dissolved solids,methanol and the presence of otherconstituents in the wastes from thepharmaceutical industry aresignificantly different from those in thewastes that were studied by EPA andthat these differences would affect thetreatment performance for these wastes.

Based on information provided in thebackground document for the proposedrule, data indicated that the wastewaterfrom the agricultural facility containedmethylene chloride concentrationsranging from 2,500 to 7,400 ppm, whilethe wastewaters from thepharmaceutical plant containedconcentrations ranging from 225 to10,000 ppm. The Agency believes thatthis difference in methylene chlorideconcentrations is not significant andwould not affect the performance of thetreatment system. In addition, theAgency believes that a plant generatingwastewaters with higher methylenechloride concentrations could use asteam stripper treatment system of alarger design or one with an increasedretention time in order to comply withthese standards.

Information provided in thebackground document for the proposedrule also showed that the concentrationof methanol in the pharmaceuticalindustry wastewaters ranged from 369to 1,684 ppm while the concentration ofmethanol in the agriculturalwastewaters ranged from 55 to 81 ppm.The Agency recognizes that there is adifference in methanol concentrations;however, it believes that theconcentration of methanol would notaffect the performance of the treatmentsystem because methanol has a higherboiling point than methylene chlorideand it does not form an azeotrope withmethylene chloride. In fact, methanolforms a binary azeotrope with water ata specific temperature and pressure.

Commenters also cited the differencein dissolved solids levels betweenpharmaceutical wastewaters and



31152 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulationsagricultural wastewaters. Data showthat the concentration of dissolvedsolids in the pharmaceuticalwastewaters ranged from 2,000 to 4,000ppm, while the agricultural wastewatersranged from 89,000 to 122,000 ppm.Although, the difference inconcentration is significant, the Agencybelieves that the agriculturalwastewaters with higher concentrationsof total dissolved solids are moredifficult to treat. Thus, EPA concludesthat the wastewaters from thepharmaceutical industry would beeasier to steam strip due to therelatively lower dissolved solids contentand therefore, should be able to meetthe treatment standard. Therefore, EPAmaintains that it does have adequateinformation to justify using treatmentdata from an agricultural chemicalfacility in determining the treatability ofwastewaters from pharmaceuticalfacilities. Thus, the Agency ispromulgating the standard forwastewaters from the pharmaceuticalindustry based on the transfer oftreatment data for wastewaters from theagricultural industry.

This treatment standard wasestablished based on the performance ofa steam stripping process. While thestandard is based on data obtained froma steam stripping process, othertreatment technologies that can achievethis standard are not precluded from useby this rule.

The Agency feels that it is importantto reiterate that none of the treatmentstandards for other hazardousconstituents in F001-F005 wastewaters,or any hazardous constituents in F001-F005 nonwastewaters have beenrevised; these standards remain aspromulgated on November 7, 1986 (51 FR40572). Also, the Agency has not revisedthe standard for methylene chloride inF001-F005 wastewaters other than thosefrom the pharmaceutical manufacturingindustry.

The final revised BDAT treatmentstandard for methylene chloride inwastewaters identified as F001, F002,F003, F004 and/or F005 from thepharmaceuticals industry is listed in thetable following this section. (Note thatthe treatment standard is reflected inthe regulations by amending § 268.41 forwastewaters from the pharmaceuticalindustry by removing methylenechloride and its correspondingconcentration of 12.7 mg/l, and addingthe revised treatment standard in§ 268.43].

BDAT TREATMENT STANDARDS FOR F001,F002, F003, F004, AND F005

(WASTEWATERS)

(Pharmaceuticals Industry Subcategory]

Maximum for any single grabsample

Constituent Totalcompo-sition TCLP (mg/I)(mg/I)

Methylene 0.44 Not applicable.chloride.

b. F06--Wastewater treatmentsludges from electroplating operationsexcept from the following processes: (1)Sulfuric ocid anodizing of aluminum; (2)tin plating on carbon steel; (3) zincplating (segregated basis) on carbonsteel; (4) aluminum or zinc-aluminumplating on carbon steel; (5) cleaning!stripping associated with tin, zinc andaluminum plating on carbon steel; and(6) chemical etching and milling ofaluminum. Today's rule promulgatestreatment standards for five constituentsproposed for F006 nonwastewaters.Individual standards based on theanalysis of TCLP leachates have beenestablished for cadmium, totalchromium, lead, nickel, and silver andare listed in the table at the end of thissection.

These treatment standards wereestablished based on the performance ofa stabilization process using cement kilndust as a binding agent. Otherstabilization binding agents and othertreatment technologies that can achievethese standards are not precluded fromuse by this rule.

At the time of this rule, the Agencyhad not completed its evaluation ofwaste characterization and treatmentinformation for antimony, arsenic,barium, and selenium. The proposedrule contained the notation "reserved"for these constituents, noting that EPAwould be setting standards when theevaluation was completed. Severalcommenters suggested that a treatmentstandard of "reserved" was confusing tothe regulated community andunnecessary. Since individual standardswould still have to be proposed andpromulgated through the normalrulemaking procedures, no benefit isachieved by the "reserved" notation forthese constituents. Therefore, theAgency has dropped it from the finalrule for this waste code.

Several commenters argued that EPAshould not regulate copper or zinc, asEPA proposed to do, because they arenot hazardous constituents specificallylisted on Appendix VIII of 40 CFR Part261. The Agency does not totally agree,in that both zinc cyanide and copper

cyanide are listed on Appendix VIII, andboth are or may be components ofelectroplating wastes. Further, EPA hasdetermined that both zinc and copperare aquatic toxins, and the Agencyconsidered adding them to AppendixVIII for that reason. However, in thisrulemaking the Agency is onlyregulating zinc and copper when theyare indicators of performance oftreatment of other Appendix VIIIhazardous constituents. Further, theAgency believes that these metalconstituents are controlled by treatmentof the metal constituents that areregulated by today's rule-and therefore,is not promulgating standards for copperor zinc as part of the treatmentstandards for F006 nonwastewaters.

F006 wastewater treatment sludgesmay contain treatable levels ofcyanides. EPA does not considerstabilization-BDAT for the metals inthis waste-to be a demonstratedtechnology for the treatment of cyanide.The Agency is currently investigatingthe use of technologies such aselectrolytic oxidation, alkalinechlorination, wet air oxidation,ozonation, and other chemical oxidationas applicable technologies for F006wastes that contain treatable quantitiesof cyanide. EPA will determine which ofthese technologies should be the basis ofthe BDAT standard when these databecome available later this year. SinceEPA has insufficient information toestablish either a separate treatabilitygroup for F006 nonwastewaterscontaining treatable levels of cyanide ora treatment standard for the cyanidecontained in them, the Agency isidentifying the treatment standard as"reserved" until a standard can beproposed later this year. Because theAgency believes that a standard will beproposed within six months, the use of"reserved" is important in assuring thatgenerators focus their attention on thetreatment of cyanide as well as themetal constituents regulated in today'srule. It is also important to note that,until a standard for cyanide in F006nonwastewaters is promulgated, thoseF006 nonwastewaters containingcyanides may be land disposed, as longas they do not exceed the statutorycyanide concentration prohibited underthe statutory "California List"restrictions-namely liquid hazardouswastes containing free cyanides atconcentrations of 1000 ppm or greater.[RCRA 3004(d), 42 U.S.C. 6924(d; seealso 52 FR 25760, July 8, 1987].

Several commenters argued thatdewatering technologies such as vacuumfiltration, plate and frame pressurefiltration, and centrifugation should beallowed and should be the basis for





BDAT. While these technologies doreduce the water content in the wasteand generally reduce the volume of solidresiduals that require disposal, theAgency maintains that thesetechnologies are merely simple physicaltreatment technologies and generally donot provide any significant treatment ofthe metals or cyanide contained in thesludge. In cases where dewatering aloneproduces a residual that can meet thetreatment standards, the Agencybelieves that it is the treatment prior tothe dewatering step that has providedthe most effective treatment of the metalconstituents. Dewatering technologiesare not precluded from use by thisregulation and can be consideredapplicable technologies when theresiduals meet the promulgatedtreatment standards or whendewatering is incorporated into anadditional treatment train that producesa residual that can achieve these levels.Such a treatment train may includetreatment technologies such aschromium reduction, cyanidedestruction, metals precipitation,settling, filtration (or centrifugation),and solidification.

One commenter identified caseswhere metal recovery processes havebeen used for metal-bearing sludges.However, at this time, their applicabilityto FOOS treatment sludges has not beenexamined in order to develop additionalstandards. The concentrations andidentity of metals in FOOS wastes varydepending on the specific metals used inthe plating process. EPA has not beenable to define any particularsubcategories of F006 wastes that wouldbe amenable to a particular recoveryprocess.

Commenters also insisted thatbecause metal recovery processes forelectroplating wastewaters exist and arebeing used, EPA should establish atreatment standard of "no landdisposal" for F006 and thereby, force allelectroplating wastewaters to recovery.EPA does not believe this alternative tobe viable because it is not clear that allelectroplating wastewaters areamenable to recovery, and even if theywere, the recovery processes themselvesgenerate a sludge which would be F006,-and thus require a treatment standard.Thus, the concentrations and identity ofmetals in these wastewaters can varydepending on the specific metals used inthe plating process. In addition, otherwastewaters are often generated atelectroplating facilities from sumpcollections of floor rinsings, fromaccidental spills and from generalmaintenance. While these wastewatersmay be potentially recovered by mixing

with other process waters, there is astrong possibility that they could foulthe recovery process due tononhazardous contaminants from thefloor. Recovery processes often includereverse osmosis and cation exchangetechniques. These techniques oftenproduce acidic or caustic backwasheswhich also must be treated. The sludgefrom these processes would also beclassified as FOOS.

At this time, EPA has not been able todefine any particular subcategory ofelectroplating wastewaters that wouldbe amenable to a particular recoveryprocess. Thus, the Agency believes thatit is unlikely that a standard of "no landdisposal" would be justified for all F006wastes. It is important to point out that,where EPA has set a treatmentstandard, it is not precluded fromrevising that standard after the statutorydate provided that rulemakingprocedures are followed.

F006 waste is a sludge consisting ofprecipitated residues generatedfollowing treatment of wastewatersfrom electroplating operations. Severalcommenters have identified specificsources of wastewater forms of F006such as those being generated at aCERCLA site, during a corrective actionat a RCRA facility, and as a leachatefrom a landfill. Since generation of FOOSwastewaters does occur, the premise ofno generation as a basis for thetreatment standard of "no landdisposal" appears to be unjustified.(Please note as an interpretive matter,that supernatant from FO06 generation isnot considered to be F006, but simplywastewater from treatment ofelectroplating wastewaters. Filtrate fromF006 sludges could be hazardous underthe derived-from rule, but if it is similarin terms of identity and concentration ofconstituents in the influent to thewastewater treatment process, it is notconsidered to be derived-from F006.Rather, it is the original influentwastewater.)

The Agency is, therefore, not able topromulgate the treatment standard forF006 wastewaters in today's rule. EPAdoes intend to propose and promulgatenumerical treatment standards for F006wastewaters prior to May 8, 1990. It islikely that these standards will be basedupon information available from EPA'sNPDES discharge limitation program forelectroplating facilities. Since nostandard is promulgated in today's rulefor F006 wastewaters, this subgroup ofwastes is restricted from land disposalaccording to the "soft hammer"provisions described in other sections ofthis preamble. [Note.-As discussed indetail in section III.C.3., EPA is

amending § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "soft hammer"waste contaminated groundwater;thereby moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.Thus, these types of F006 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33(g. This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.1

BDAT TREATMENT STANDARDS FOR F006

[Nonwastewaters]

Maximum for any singlegrab sample

Constituent Totalcomposition TCLP (mg/I)

(mg/kg)

Cadmium ..... ......... (I) 0.066Chromium (total) (') 5.2Lead ................. (I) .51N ickel ............................. (1) .32Silver ................. (1) .072Cyanides (total) ............. (2) (2)

'Not applicable.2 Reserved.

c. KOO1-Bottom sediment sludge fromthe treatment of wastewaters from woodpreserving processes that use creosoteand/or pentachorophenol. Today's rulepromulgates treatment standards forK001 wastewaters and nonwastewaters.BDAT treatment standards for theorganic constituents in K001wastewaters and nonwastewaters wereestablished based on the performance ofa rotary kiln incinerator and specificallyon the concentrations found in theresiduals. BDAT treatment standards forthe metal constituents in K001nonwastewaters (ash residues) wereestablished based on the performance ofa stabilization treatment process andthose for the metal constituents in K001wastewaters were based on chemicalprecipitation. Other treatmenttechnologies such as biodegradation,solvent extraction, and/or stabilizationthat can achieve these standards are notprecluded from use by this rule.

For all wastes identified as K001, EPAis promulgating final treatmentstandards for six organic constituents.These are naphthalene,pentachlorophenol, phenanthrene,pyrene, toluene, and xylenes. EPA isalso promulgating final treatmentstandards for lead. The final standard





for pentachlorophenol is the result of arelatively high analytical quantitationlimit observed for this particular K001waste. No data was received whichallowed EPA to lower this standardbased on lower quantitation limits forpentachlorophen0l in other K001 wastes.Therefore, the promulgated standard forthis constituent is as proposed.

EPA considered the establishment oftreatment standards for polychlorinateddibenzofurans and polychlorinateddibenzodioxins. In the proposed rule,EPA had specifically requestedcomments on this issue. However, noadditional data was submitted whichcould be evaluated to propose numericaltreatment standards for theseconstituents. Some commenters statedthat if EPA set standards for theseparticular hazardous constituents, nocommercial facility would accept thesewastes for treatment. In this final rule,EPA is not setting treatment standardsfor these constituents. However, it isimportant to point out that, where EPAhas set a treatment standard, it is notprecluded from revising that standardafter the statutory date provided thatrulemaking procedures are followed.This includes the addition of hazardousconstituents such as the polychlorinateddibenzofurans and polychlorinateddibenzodioxins.

Several commenters argued that EPAshould not regulate copper or zinc, asEPA proposed to do, because they arenot hazardous constituents specificallylisted on Appendix VIII of 40 CFR Part261. The Agency does not totally agree,as discussed earlier. However, in thisrulemaking the Agency is onlyregulating zinc and copper when theyare indicators of performance oftreatment of other Appendix VIIIhazardous constituents. Further, theAgency believes that these metalconstituents are controlled by treatmentof the metal constituents that areregulated by today's rule and therefore,is not promulgating standards for copperor zinc as part of the treatmentstandards for K0Ol wastes.

Several commenters suggested thatland treatment also can be considered tobe BDAT for this waste. Land treatmentis defined as a form of land disposalunder section 3004(k). Treatmentstandards are those that apply beforeland disposal; wastes must meet thesestandards before they can be landdisposed. See section 3004(m); see alsosections 3004 (d), (e), (f), and (g), all ofwhich refer to the (m) standards as

pretreatment'standards which applybefore land disposal. Moreover, whereCongress wished to allow a form of landdisposal for wastes not already meetingthe treatment standard, it said sodirectly. See section 3005(j)(11). There isno such directive for treatment in landtreatment units of wastes not alreadymeeting the treatment standard (orsubject to some type of exception from aprohibition). Consequently, EPA mustreject these commenters' suggestions asa matter of law.

BDAT TREATMENT STANDARDS FOR F001[Nonwastewaters]



(mg/kg)

Naphthalene .................. 8.0 (')Pentachlorophenol ........ 37 ()Phenanthrene ................ 8.0 (1)Pyrene .................... 7.3 (1)Toluene .................. .14 (1)Xylenes ........................... 16 (1)Lead ............................... (1) 0.51

Not applicable.

BDAT TREATMENT STANDARDS FOR F001[Nonwastewaters]



(mg/I)

Naphthalene .................. 0.15 (')Pentachlorophenol ........ .88 ()Phenanthrene ................ .15 (')Pyrene ............................ .14 (')Toluene ........................... 14 (')Xylenes ........................... 16 (')Lead ................................037 (')

Not applicable.

d. KO15--Still bottoms from thedistillation of benzyl chloride. TheBDAT treatment standard of "no landdisposal" for K015 nonwastewaters wasproposed based on the performance of aliquid injection incinerator and the factthat the waste contained no measurableash (the solid residue from incineration).The detection limit for the ash content ofthe K015 nonwastewaters studied byEPA was 0.01% by weight. Since nocomments were received indicatinggeneration of K015 wastes withdetectable levels of ash, EPA hasdecided that the premise of "no ash" asa basis for the treatment standard of "noland disposal" appears to be justified.Therefore, today's rule promulgates the

final treatment standard of "no landdisposal" for all K015. One commenterexpressed concern that if K015 weremixed with a waste that did contain anash, the resultant ash would be subjectto the "no land disposal" standard forK015. EPA agrees with the commenterthat the standard would be applicable,but believes that blending with a wasteor fuel that contains no ash is an optionthat allows compliance with the "noland disposal" standard for K015. At thesame time, EPA also recognizes thatK015 may be generated with an ashcontent if K015 were inadvertentlyspilled (such as on soil). However, EPAcannot anticipate this type of nonroutinegeneration and therefore, has todisagree with these commenters. TheAgency also believes that for situationssuch as this, the petition processes forobtaining a variance from the treatmentstandard provides potential generatorswith a viable procedure for managingthe waste.

The use of other treatmenttechnologies are not precluded by thisrule. For example, while rotary kiln andfluidized bed incinerators are generallydesigned to handle solids and sludges,these units often are designed toincinerate liquids. In any case, wherethese or other treatment technologiescan treat K015 without generating anash or other solid residual, these unitsmay be used to achieve the "no landdisposal" standard for the K015nonwastewaters.

Today's rule also promulgates finaltreatment standards for K015wastewaters for all constituents asproposed. The regulated constituents areanthracene, benzal chloride, benzo (band/or k) fluoranthene, phenanthrene,toluene, total chromium and nickel.BDAT treatment standards for theorganic constituents were establishedbased on the performance of a liquidinjection incineration and theconcentrations found in the scrubberwater. BDAT treatment standards forthe metal constituents in wastewaterswere based on chemical precipitation.Because no comments were received onthe proposed regulation of any of thespecific constituents for K015wastewaters, EPA assumes thatgenerators of K015 wastes agree withEPA's assessment of the treatability ofthese wastes. All final treatmentstandards are listed in the followingtable:



Federal Register I Vol. 53, No. 159 / Wednesday, August 17, 1988 I Rules and Reg~Aations 31155BDAT TREATMENT STANDARDS FOR K01 5

[Nonwastewaters]

NO LAND DISPOSAL BASED ON NOASH

BDAT TREATMENT STANDARDS FOR K015

[Wastewaters]



(mg/I)

Anthracene .................... 1.0 (1)Benzal chloride .............. 2 ()Benzo (b and/or k)

fluoranthene ................ 29 (1)Phenanthrene ................. 27 (')Toluene ........................... 15 (I)Chromium (total) ............ 32Nickel ..............................44 (')

Not applicable.

e. K016-Heavy ends or distillationresidues from the production of carbontetrachloride. K018-Heavy ends fromthe fractionation column in ethylchloride production. K019-Heavy endsfrom the distillation of ethylenedichloride in ethylene dichlorideproduction. KO20-Heavy ends from thedistillation of vinyl chloride in vinylchloride production. K030-Columnbottoms or heavy ends from thecombined production oftrichloroethylene andperchloroethylene. Today's rulepromulgates final treatment standardsfor K016, K018, K019, K020 and K030wastewaters and nonwastewaters asproposed. These five listed hazardouswastes are generated in the productionof chlorinated chemicals in the organicchemical industry. The Agency noted inthe April 8, 1988 proposal (53 FR 11755)that K019 was originally scheduled forPart 268 regulation in the Second Third(effective June 8, 1989). However, due tothe similarity between K019 and theother wastes in this treatability group(K016, K018, K020 and K030), the Agencyhas chosen to accelerate the schedulefor K019.

Several commenters opposed thisaccelerated schedule for K019, statingthat business operations had beenplanned based on K019 being regulatedin June of 1989. However, the statutedoes not preclude EPA from prohibitingthe land disposal of a given waste aheadof schedule (and the schedule in§ § 268.10-268.12 itself says that wasteswill be evaluated by a given date,indicating that the specified date is thelatest time by which EPA will act), andin fact compels the Agency to prohibitthe land disposal of hazardous wastesas soon as possible. Having identifiedBDAT and developed treatmentstandards for K019 wastes, the Agency

believes the most prudent approach is topromulgate the standards and effectivedate as proposed.

BDAT treatment standards for theorganic constituents in these wastes arebased on the performance of rotary kilnincineration and the concentrationsfound in the residuals. Other treatmenttechnologies such as fluidized bedincineration, biodegradation, andsolvent extraction, that can achievethese standards are not precluded fromuse by this rule.

As described fully in the backgrounddocument for these wastes, individualconstituent standards from waste codeK019 have been transferred to those ofconstituents in waste codes K016, K018,K020, and K030. The Agency based thistransfer of standards primarily on thephysical and chemical similarity of theindividual organic constituents as wellas the similarities in overallcharacteristics of the individual wastes.Because no comments were received onthe proposed regulation of any of thespecific constituents for K016, K018,K019, K020 and K030 wastes, EPAassumes that generators of these wastesagree with EPA's assessment that thesetreatment standards can be achieved.The regulated constituents aid BDATtreatment standards for these wastesare listed in the tables at the end of thissection.


[Nonwastewaters]


Constituent Total

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

Hexachlorobenzene 28 (')Hexachlorobutadiene 5.6 ()Hexachlorocyclopen-

tadiene ....................... 5.6 (')Hexachloroethane 28 (')Tetrachloroethene 6.0 (')

I Not applicable.

BDAT TREATMENT STANDARDS FOR K016[Wastewaters]


Constituent Total

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

Hexachlorobenzene 0.033 (')Hexachlorobutadiene .... .007 ()Hexachlorocyclopenta-

diene ............................ .007 (')Hexachloroethane .033 (')Tetrachioroetheie .007 (')

INot applicable.


[Nonwastewaters]



(mg/kg)

Chloroethane ................ 6.0 (')1,1-Dichloroethane 6.0 ()1,2-Dichloroethane 6.0 (1)Hexachlorobenzene 28 ()Hexachlorobutadiene 5.6 (')Hexachloroethane 28 (')Pentachloroethane ....... 5.6 )1,1,1-Trichloroethane ... 6.0 )

Not applicable.


[Wastewaters]



(mg/I)

Chloroethane .................. 0.007 (')Chloromethane ............... .007 ()1,1-Dichloroethane .007 ()1,2-Dichloroethane .007 ()Hexachlorobenzene ....... .033 ()Hexachlorobutadiene .007 (')Pentachloroethane ........ .007 ()1,1,1 -Trichloroethane .007 ()

Not applicable.


[Nonwastewaters]

Maximum'for any singlegrab sample

Constituent Total


Bis(2-chloroethyl)ether 5.6 ()

Chlorobenzene .............. 6.0 ()Chloroform ..................... 6.0 ()1,2-Dichloroethane 6.0 ()Hexachloroethane ........ 28)Naphthalene ........ 5.6 ()Phenanthrene ................ 5.6 (')Tetrachloroethene 6.0 ()1,2,4-

Trichlorobenzene ...... 19 )1,1,1-Trichloroethane... 6.0 (')

Not applicable.


[Wastewaters]



(mg/I)

Bis(2-chloroethyl)ether..Chlorobenzene ...............Chloroform ......................p-Dichlorobenzene .........

0.007.006.007.008

Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 31155'



31155 Federal Register I Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

BDAT TREATMENT STANDARDS FOR

K019-Coninued

[Wastewaters]


Constituent Total

composition TCLP (mg/i)(mg/i)

1,2-Dichloroethane .. 007 ()Fluorene .......................... .007 ('Hexachloroethane .033 (')Naphthalene ................ . 007 (')Phenanthrene .............. . 007 (')1,2,4,5-

Tetrachlorobenzene .017 (')Tetrachlorocth~ne .. 007 ()1,2,4-Trichlorobonzene .023 (')1,1,1-Trichloroethane .007 (')

I Not applicable.

BDAT TREATMENT STANDARDS FOR K020(Nonwastewaters]

Maximum for any single

grab sample

Constituent Total


1,2-Dichloroethane 6.0 (')1,1,2,2-

Tetrachloroethane 5.6 (')Tetrachloroethene .......... 6.0 ()

'Not applicable.


[Wastewaters]


Constituent Total

composition TCLP (mg/)(mg/I)

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

Tetrachloroethane ....... .007 ()Tetrachloroethene .......... .007 (')

'Not applicable.

BDAT TREATMENT STANDARDS FOR K030[Nonwastewaters]


grab sample

Constituent Total


Hexachlorobutadiene 5.6 (')Hexachloroethane 28 (')Hexachloropropene 19 (')Pentachlorobenzene 28 (')Pentachloroethane ...... 5.6 ()1,2.4,5-

Tetrachlorobenzene. 14 (')Tetrachloroethene 6.0 (')1,2,4-

Trichlorobenzene 19 (')

'Not applicable.

BDAT TREATMENT STANDARDS FOR K030[Wastewaters]

Maximum for any single. grab sample

Constituent TotaJcomposition TCLP (mg/i)

(mg/I)

o-Dichlorobenzene 0.000 ()p-Dichlorobenzene ........ . 008 V')Hexachlorobutadiene .007 (1)Hexachloroethane ......... .033 (1)Pentachloroethane .007 (1)1,2,4,5-

Tetrachlorobenzene .017 ()Tetrachloroethene .007 (1)1,2,4-Tfichlorobcnzen .023 (')

I Not applicable.

f. K022-Distillation bottom tars fromthe production of phenol/acetone fromcumene. Today's rule promulgates finaltreatment standards for K022nonwastewaters as proposed. Treatmentstandards for the organic constituents inthese wastes are based on theperformance of a fuel substitution unitand the concentrations found in the ashresiduals. Treatment standards for themetal constituents in nonwastewaters(ash residues) are based on theperformance of a stabilization treatmentprocess. Other treatment technologiessuch as liquid injection incineration,rotary kiln incineration, and fluidizedbed incineration, that can achieve thesestandards are not precluded from use bythis rule.

The variety in types of alternativeincineration units that are potentiallyapplicable and are believed able toachieve the treatment standards, isprimarily due to the physical form of theK022 nonwastewaters. As initiallygenerated, K022 wastes are still bottomsthat are typically pumped directly fromthe distillation unit as viscous organicliquids, while they remain hot. Uponcooling, the viscosity of the waste willincrease and K022 can become tarry andviscous. It can be kept fluidized bymixing it with various lighthydrocarbons, waste olefinic oils orsolvents. If not fluidized or kept hot, thewaste will eventually harden into anorganic solid. One commenter suggestedthat these viscous or hardened solidsshould be able to be reheated and thus,fluidized. While the Agency has notverified this, it believes that theimmediate onsite management of thewaste is the determining factor onwhether the waste can be handled as aliquid or as a solid.

For wastes identified as K022nonwastewaters, EPA is promulgatingfinal treatment standards for sevenconstituents. These are toluene,acetophenone, phenol, diphenylamine,

diphenylnitrosamine, nickel and totalchromium. The standard fordiphenylamine and diphenylnitrosamineis listed as the sum of these constituents.This is necessary because the twocompounds cannot be distinguishedusing EPA's standard analytical testingprocedure.

At the time of this rule, the Agencyhad not completed its evaluation ofwaste characterization and treatmentinformation for sulfide. The proposedrule contained the notation "reserved"for these constituents, noting that EPAwould be setting standards when theevaluation was completed. Severalcommenters suggested that a treatmentstandard of "reserved" was confusing tothe regulated community andunnecessary. Since individual standardswould still have to be proposed andpromulgated through the normalrulemaking procedures, no benefit isachieved by the "reserved" notation forthese constituents. Therefore, theAgency has dropped it from the finalrule for this waste code.

In the proposed rule EPA consideredestablishing treatment standards forpolychlorinated dibenzofurans andpolychlorinated dibenzodioxins for ashresiduals from the burning orincineration of K022 nonwastewaters. Asample of untreated ash from theburning of K022 as a fuel substitute wasanalyzed for isomers of chlorinateddibenzofurans and chlorinateddibenzodioxins. A trace amount (partsper trillion) of tetrachlorodibenzofurans(TCDF) was detected in this sample.This amount was determined to bebelow the typical BDAT quantitationlevel for these compounds. In theproposed rule, EPA had specificallyrequested comments on the issue ofregulating these compounds. Also, theAgency had noted that it wasreexamining the analyticalquantification procedures for thereported tetrachlorodibenzofurans. TheAgency has since discovered that thelaboratory that performed the analysisfor isomers of chlorinated dibenzofuransand chlorinated dibenzodioxins hadfailed to provide audit samples orfortified (spiked) samples. Thus, theaccuracy of quantification below thetypical BDAT quantitation levels for thereported tetrachlorodibenzofurans cannot be determined. EPA has concludedthat additional analysis reproducingthese results, with the proper QA/QCperformed, would be required beforeEPA can consider development oftreatment standards for thesecompounds. No additional data weresubmitted' from commenters that could

3115f) Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations




be evaluated to propose treatmentstandards for these constituents.

As described fully in the backgrounddocument for this waste, individualstandards for total chromium and nickelfor the K022 nonwaatewaters have beentransferred from the performance ofsolidification on F005 wastes. TheAgency based this transfer of standardsbased primarily on the physical andchemical similarity of the individualmetal constituents. as well as thesimilarities in overall characteristics ofthe wastes. Because no comments werereceived on the proposed regulation ofany of the specific constituents for K022,EPA assumes that generators of thesewastes agree with EPA's assessmentthat these treatment standards can beachieved. The regulated constituentsand BDAT treatment standards for thesewastes are listed in the tables at the endof this section.

The BDAT treatment standard of "noland disposal" for K022 wastewaterswas proposed based on the performanceof a fuel substitution unit that generatedno scrubber water. This information wasthe basis of the "no land disposal"standard for K022 wastewaters. In theproposed rule, EPA specificallyrequested comment on the premise ofthe "no land disposal". In response, onecommenter stated that he does generateK022 wastewaters as a scrubber water.Other commenters have identifiedadditional potential sources ofwastewater forms of K022 such as thosebeing generated at a CERCLA site,during a corrective action at a RCRAfacility, and as a leachate from a landfillwhere K022 nonwastewaters or K022ash residues have been previouslydisposed. Since generation of thesewastewaters has been identified, thepremise of "no generation" appears tobe unjurtified. As a result, the Agencyhas decided to not promulgate a finalrule of "no land disposal" K022wastewaters. EPA does intend topropose and promulgate treatmentstandards for these wastes prior to May8, 1990. Since no standard ispromulgated in today's, rule for K022wastewaters, these wastes are restrictedfrom land disposal according to the "softhammer" provisions described in othersections of this preamble. [NOTE: Asdiscussed in detail in section IIl.C.3.,EPA is amending section 208.12 toinclude wastewater residues derivedfrom the treatment of "soft hammer"wastes by certain'processes, as well asleachate derived from the managementof "soft hammer" wastes and "soft

hammer" waste contaminatedgroundwater; thereby moving theaforementioned types of wastewatersinto the group of wastes identified as theThird Third. Thus, these types of K022wastewaters are not subject to the "softhammer" prohibitions in § 268.33(f). Thisaction will allow these wastewaterresidues to be disposed in non-minimumtechnology units and such residues willnot be subject to the certificationrequirements of § 268.8.]


[Nonwastewaters]


Constituent Totalcomposition TCLP (mgl)

(mg/kg)

Acetophenone ............... 19 (1)Sum of diphenylamine

anddiphenylnitrosamine.. 13 (1)

Phenol ............................ 12 (1)Toluene .......................... .034 (1)Chromium (total) ........... (') 5.2Nickel ............................. ( ) .32

Not applicable.

g. K024-Distilotion bottom tars fromthe production of phtholic anhydridefrom naphthalene. Today's rulepromulgates final treatment standardsfor K024 wastewaters andnonwastewaters. (The Agency notesthat the proposed treatment standards(see 53 FR 11757 and 11790; April 8,1988) were in error; however, thebackground document for the proposedrule contained the correct concentrationlevels for phthalic acid-which arebeing promulgated today). Treatmentstandards are based on the performanceof rotary kiln incineration and theconcentrations found in the ash andscrubber water residuals. Othertreatment technologies such as fluidizedbed incineration and fuel substitutionthat can achieve these standards are notprecluded from use by this rule.

EPA is regulating phthalic acid forboth K024 wastewaters and K024nonwastewaters. This constituent,although not listed as a hazardousconstituent in Part 261 Appendix VIII, isbeing regulated as a surrogate forphthalic anhydride. Phthalic anhydrideis a hazardous constituent; however, itcannot be easily analyzed, in that theanalytical method readily hydrolyzesthe compound to phthalic acid. The

BDAT treatment standards for thesewastes are listed in the following tables:


[Nonwastewaters]



(mg/kg)

Phthalic acid ................... 28 (1)

I Not applicable.


[Nonwastewaters]


Constituent Totalcompositior TCLP (mg/I)

_______(mg/I)

Phthalic acid ................... 0.54 (')

'Not applicable.

h. K037-Wastewater treatmentsludge from the production ofDisulfoton. Today's rule promulgatesfinal treatment standards for K037wastewaters and nonwastewaters asproposed. Treatment standards arebased on the performance of rotary kilnincineration and the concentrationsfound in the ash and scrubber waterresiduals. Other treatment technologiessuch as fluidized bed incineration, fuelsubstitution units, biodegradation, andsolvent extraction, that can achievethese standards are not precluded fromuse by this rule.

EPA is regulating Disulfoton andtoluene for K037 wastewaters and K037nonwastewaters. Because no commentswere received on the proposedregulation of these standards, EPAassumes that generators of these wastesagree with EPA's assessment that thesetreatment standards can be achieved.The BDAT treatment standards for thesewastes are listedin the following tables:


[Nonwastewaters]



(mg/kg)

Disulfoton ..... ........... 1 (' )

Toluene ......................... 28 (')

Not applicable.



315 Fdra egse /Vl.5,o 19/Wensdy Ags 17 98/Rls n euain

BDAT TREATMENT STANDARDS FOR K037(Nonwastewaters]


Constituent Total


Disultoton ...... ...... 0.003 (')

Toluene ........................... . 028 (I)

I Not applicable.

I. K044-Wastewater treatmentsludges from the manufacturing andprocessing of explosives. K045-Spentcarbon from the treatment ofwastewater containing explosives.K047-Pink/red water from TNToperations. Today's rule promulgates"no land disposal" as the final treatmentstandard for K044, K045 and K047wastewaters and nonwastewaters. Thetreatment standard for these wastes wasestablished based on EPA'sdetermination that open burning andopen detonation of reactive (e.g.,explosive) wastes is not considered landdisposal. So long as no reactiveconstituents remain after detonation,there would be no land disposal of ahazardous waste (40 CFR261.3(a)(2)(iii)). In order to provideclarification, EPA has modified the "noland disposal" standard to read "noland disposal based on reactivity".

Other technologies, such asincineration in specially designedexplosion protected units and chemicaldeactivation processes, that can renderthese wastes nonreactive are notprecluded from use by this rule based ona determination that residues from thesetechnologies are no longer reactive (i.e.,explosive).

One commenter pointed out that thereare no established and approvedanalytical methods to determine thereactivity characteristic for wastes. Thecommenter noted that approvedmethods would be useful in determiningwhether the treatment of K044, K045,K046, and K047 was sufficient to renderthe waste nonreactive. The Agencyagrees with the commenter to the factthat there is no official OSW analyticalmethod (i.e., according to SW-846, 3rded.) to test for reactivity. However, theAgency has recently reviewed a testingprotocol developed by the Departmentof Defense to measure the characteristicof reactivity for their hazardous wastes.While this protocol does not containofficial OSW methods, the Agencybelieves that it represents logical andsafe analytical procedures fordetermining the characteristic ofreactivity (particularly for explosivewastes). Additional information on this

protocol can be found in the backgrounddocument for K046.

BDAT TREATMENT STANDARDS FORK044, K045, AND K047

[Nonwastewaters and wastewaters]

NO LAND DISPOSAL BASED ON REACTIVITY

j. K046-Wastewater treatmentsludges from the manufacturing,formulation, and loading of lead basedinitiating compounds. Today's rulepromulgates a final treatment standardonly for those K046 nonwastewatersthat are nonreactive. A TCLP treatmentstandard for lead was established forthese wastes based on the performanceof a stabilization process. The K046 thatwas specifically sampled and tested bythe Agency was nonreactive (i.e.,nonexplosive) as originally generated.This standard does not apply to K046nonwastewaters that are reactive (i.e.,explosive) as originally generated.Residues from the open detonation,open burning, or incineration of K046nonwastewaters that are reactive asoriginally generated do not have to meetthese standards.

Commenters to the proposed rulestated that the data used to set thetreatment standard for nonreactive K040nonwastewaters may not berepresentative of their K046 wastes.Descriptions of their processes and theirwastes indicated that they aregenerating reactive K046 wastes thatthey are subsequently treated by opendetonation or open burning, thuscreating nonreactive K046 residuals. Itwas these wastes that they stated weredifferent from the nonreactive K046 thatEPA studied.

The waste sampled and tested by theAgency consisted primarily of a leadcarbonate sludge generated from achemical treatment process forwastewater that originally contained theexplosive compound lead azide. Thissludge contained approximately 95%water and approximately 1,000 ppmtotal lead. In contrast, residues from onefacility consist of solid ash from burningor detonating a K046 that includes lead-based initiating compounds and otherexplosives. The Agency recognizes thatthese wastes are inherently differentand were not examined by EPA duringthe development of the K046 treatmentstandards. The Agency intends toreexamine the data based on its testingof nonreactive K046 nonwastewatersand determine whether the data can beextrapolated to reactive K046 wastescontaining untreated lead azide or

whether new data must be obtained toset treatment standards for thoseresidues from open detonation, openburning or specialized incineration ofK046 wastes that were originallyreactive as generated.

In today's rule, the Agency is takingthis information into account and issetting treatment standards only forthose K046 nonwastewaters that arenonreactive (i.e., nonexplosive) whenthey are initially generated. ReactiveK046 nonwastewaters that must be opendetonated do not have to meet thetreatment standard promulgated as finalin today's rule. No comments or datawere received that specifically indicatedthe existence of nonreactive K046 (otherthan nonreactive residuals from opendetonation or open burning of K046 thatwere originally explosive as generated)that could not meet the proposedtreatment standard for lead. Therefore,the Agency assumes that generators ofthese nonreactive (as generated) K046wastes agree with EPA's assessmentthat these treatment standards can beachieved.

Some commenters indicated that theygenerate a mixture of K044 and K046and were concerned that the preambleis unclear as to whether reactive K046wastes can first be treated by openburning or open detonation to removethe reactivity hazard beforestabilization. Stabilization of reactiveK046 or mixtures of nonreactive K046with reactive K044, K045, K047 or otherexplosive wastes would requireexcessive handling in an essentiallyuntried manner. It would be dangerousand contrary to industry safety practicesto impose such requirement withoutadequate safety testing. The Agencyagrees with these commenters, in thatEPA is uncertain of the risk associatedwith pretreating reactive (i.e., explosive)K046 wastes by open burning toeliminate the explosion hazard.Residues that do not meet the treatmentstandards can promptly be removed fortreatment by stabilization at facilitiesequipped and authorized to carry outsuch activities. This scenario eliminatesthe safety hazards while addressingenvironmental concerns related to thetoxic constituents in the waste.However, the Agency prohibits themixing of nonreactive K046 wastes(those that are nonreactive as initiallygenerated) with explosive wastes suchas K044, K045 or K047 in order to avoidthe applicability of the promulgatedfinal treatment standard for nonreactiveK046 nonwastewaters.

In the proposed rule, the Agencyrecognized the existence of thegeneration of reactive (i.e., explosive)

No. 159 / Wednesday, August 17, 1988 / Rules and Regulations31158 Federal Register / Vol. 53,




K046 nonwastewaters and proposed atreatment standard of "no landdisposal" for these wastes based on thesame rationale that the Agency used for(044, K045 and K047. However, the

Agency now realizes that this rationaleis not applicable because the leadpresent in the wastes would remain onthe ground after open detonation. TheAgency believes that these residues.could be physically removed from theland and solidified to prevent leachingof the lead. However, the Agency hasnot investigated the concentration oflead in these residuals nor has itinvestigated the performance ofsolidification for these. As a result, theAgency is, therefore, not able topromulgate the "no land disposal"treatment standard for the explosiveK046 nonwastewaters in today's rule.EPA does intend to propose andpromulgate treatment standards forthese wastes prior to May 8,1990. Sinceno standard is promulgated in today'srule for reactive K046 nonwastewaters,these wastes are restricted from landdisposal according to the "soft hammer"provisions described in other sections ofthis preamble.

In the proposed rule, the Agency alsoproposed a-treatment standard of "noland disposal" for all K046 wastewaters,based on the premise that they wouldnot be generated. Several commentershave identified specific sources ofwastewater forms of K046 such as thosebeing generated at a CERCLA site,-during a corrective action at a RCRAfacility, and as a leachate from alandfill. Since genera tion of K040wastewaters does occur, the premise of"no generation" as a basis for thetreatment standard of "no landdisposal" appears to be unjustified. TheAgency is, therefore, not able topromulgate the treatment standard forK046 wastewaters in today's rule, EPAdoes intend to propose and promulgatenumerical treatment standards for thesewastes prior to May 8, 1990. Since nostandard is promulgated in today's rulefor K046 wastewaters, this subgroup ofwastes is restricted from land disposalaccording to the "soft hammer"provisions described in other sections ofthis preamble. [Note.-As discussed indetail in section TILC.3., EPA isamending. § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "scft hammer"waste contaminated groundwater;thereby moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.

Thus, these types of K046 wastewatersare not subject to the "soft hammer".prohibitions in § 268.33ff). This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.1

One commenter pointed out that thereare no established and approvedanalytical methods to determine thereactivity characteristic for wastes. Thecommenter noted that approvedmethods would be useful in determiningwhether the treatment of K044, K045,K046, and K047 was sufficient to renderthe waste nonreactive. The Agencyagrees with the commenter to the factthat there is no official OSW analyticalmethod (i.e., according to SW 846, 3rded.) to test for reactivity. However, theAgency has recently reviewed a testingprotocol developed by the Departmentof Defense to measure the characteristicof reactivity for their hazardous wastes.While this protocol does not containofficial OSW methods, the Agencybelieves that it represents logical andsafe analytical procedures fordetermining the characteristic ofreactivity (particularly for-explosivewastes). Further, the Agency believesthat this testing protocol can be used asguidance in the determination of theapplicability of the treatment standardsfor K046 wastes (i.e., the determinationof whether the K046 waste is in the -reactive or nonreactive subcategory).Additional information on. this protocolcan be found in the backgrounddocument for K046. N


(Nonwastewatersl

[Noneactive subcategoryl

Maximum for any singlegrab sampre

Constituent Totalcomposition TCLP (mgfl

_ (mg/kg)

Lead ........... 0.18

Not applicable.

k. K048-Dissolved air flotation(DAF) float from the petroleum refiningindustry. K049--Slop oil emulsion solidsfrom theapetroleum refining industry.K050--Heat exchanger bundle cleaningsludge from the petroleum refiningindustry. K051-API separator sludge.from the petroleum refining industry.K052-Tank bottoms (leaded)from thepetroleum refining industry.. In .today'srule EPA is promulgating treatmentstandards for wastewater andnonwastewater forms of K048, K049,

K050, K051 and K052; These standardsiire based on reanalysis of the originaltreatment data forincinerhtion andsolvent extraction, as well as analysis 'ofadditional, recently submitted data onsolvent extraction. In the proposed ruleand background document for thesewastes, the Agency had indicated thatthere was a statistical differencebetween these technologies Severalcommenters pointed out that thisdifference is for only a few constituentsand that the two technologies canachieve comparable performance for themajority of constituents. They alsobelieve that there is little environmentalbenefit achieved in using theincineration performance data as thesole basis for setting treatment "standards versus the incorporation ofthe solvent extraction data into thestandard. They stated that bothtechnologies could achieveconcentrations of hazardousconstituents in the residuals that werebelow health based limits for thoseconstituents.

EPA's own statistical (ANOVA)comparison of the two technologiesconfirms that fluidized bed incinerationprovides significantly better treatmentthan solvent extraction for naphthaleneand xylenes. However, for eleven otherorganic constituents there is nosignificant difference in achievableperformance.

The proposed BDAT standards forK048-K052 nonwastewaters were basedsolely on the results- obtained from theanalysis of residual samples fromincineration of K048 and K051 wastes atone refinery. Prior to the April 8, 1988proposed regulation, industry hadsubmitted treatment data for K048-K05Zwastes using solvent extractiontechnologies. These data wereincomplete for incorporation into theproposed standard, primarily becausethey did not include any totalconstituent concentrations in the wastesprior to treatment. During the commentperiod, these additional data, as well asother industry data, were provided toEPA; allowing the Agency to completeits analysis of the technology.

The solvent extraction process thatwas examined is designed to recoverand recycle petroleum products from theK048-K052 nonwastewaters. Use of thetechnology thus furthers the broadCongressional goal of resource recoveryas a preferred alternative to wastetreatment alone (see, e.g. H.R. Rep. No.198, 98th Cong. ist Sess. at 31), Severalcommenters indicated that it also maybe easier to obtain treatment permits forsolvent extraction units than forincinerators-due to less ptublic concern



31160 Federal Register / Vol. 53,

over the presence of these type of unitsin the community.

EPA has considered all of thesecomments and has decided that theresource recovery achieved by solventextraction justifies its inclusion in thedevelopment of BDAT treatmentstandards. Therefore, EPA hasestablished solvent extraction andincineration as BDAT for K048-K052nonwastewaters and is promulgatingrevised numerical standards. EPA doesnot believe that this conflicts with thepromulgated BDAT methodology.

A few weeks before promulgation ofthe final regulation, EPA received datashowing performance of other types ofsolvent extraction systems on K048-K052. These data appear to indicatesuperior treatment of xylene andnaphthalene than the system on whichEPA is basing its treatment standards.The Agency has not had the opportunityto fully evaluate these data, however,nor has any member of the petroleumindustry had the opportunity tocomment on them. EPA consequentlydoes not feel justified in basingtreatment standards on this information.However the Agency is continuing tostudy these data and will propose torevise the treatment standards if suchexamination shows that significantlylower levels are actually achievable.Such a proposal may appear, forexample, as part of the Second Thirdproposed rulemaking, expected a fewmonths from now. However, as a resultof these data, EPA believes itunwarranted to promulgate treatmentstandards for xylenes and naphthaleneat the present time, and accordingly isreserving treatment standards for theseconstituents.

Today's rule promulgates treatmentstandards for all of the organicconstituents proposed for K048, K049,K050, K051 and K052 nonwastewatera.Additionally, several other organicconstituents are being regulated thatwere identified in characterization datafor these wastes. EPA's testing offluidized bed incineration showedsubstantial treatment of theseconstituents. However, treatmentstandards were not originally proposedfor them because the Agency believedthat they would be controlled byincineration and regulation of otherorganic constituents in thenonwastewater residuals fromincineration. They are being regulated in

today's rule because the additional datasubmitted by industry indicated thatsolvent extraction achieves substantialtreatment for these constituents.However, the Agency does not have anydata that indicate that theseconstituents would be necessarilycontrolled by solvent extraction if onlythe other organic constituents areregulated. The standards for the organicconstituents are based on the results ofthe performance achievable by solventextraction and/or incineration.Standards for arsenic, total chromium,nickel, and selenium are establishedbased on the performance of astabilization process. It is important topoint out that while the standards fororganic constituents are based on dataobtained from solvent extraction andfluidized bed incineration, othertreatment technologies such as rotarykiln incineration and biodegradationthat can achieve these standards are notprecluded from use by this rule.

Several commenters argued that EPAshould not regulate copper, vanadium orzinc because they are not constituentsspecifically listed on Appendix VIII of40 CFR part 261. The Agency does nottotally agree, but is not adoptingstandards for these metals for reasonsstated earlier in connection with F006wastes. The final revised BDATtreatment standards for K048, K049,K050, K051 and K052 are listed in thetables at the end of this section.

Several commenters stated thatdewatering technologies such as vacuumfiltration, piate and frame pressurefiltration, and centrifugation, as well asthermal drying, should be allowed andshould be the basis of BDAT. They alsoprovided leachability data on theresiduals from these process. However,no total constituent concentration datawere provided for comparison to theperformance of incineration and solventextraction. While these technologies doreduce the water content in the wasteand generally reduce the volume of solidresiduals that require disposal, they donot perform as well as incineration andsolvent extraction technologies that EPAhas determined to be BDAT for thesewastes. A detailed comparison of thesetechnologies is provided in the BDATbackground documents for these wastes,located in the docket for this rule. At thesame time, it is important to point outthat these dewatering technologies arenot precluded from use by this

regulation and can be consideredapplicable technologies when usedalone or when incorporated into anadditional treatment train, provided thatthey produce a residual that can achievethe constituent concentrations in thetreatment standards for that particularwaste.

The proposed BDAT standards fororganic constituents in K048-K052wastewaters were based on a transferof performance data for the scrubberwater residual from the incineration of asimilar waste. The Agency has recentlycompleted an analysis of scrubberwaters from the incineration of a K048waste (performed earlier this year). Theresults of this analysis are comparableto the treatment performance data thatwere the basis for the proposedstandards. The Agency has decided topromulgate the final treatmentstandards for K048-K052 wastewatersbased on revised standards using thedata from the incineration of the K048waste.

Several additional organicconstituents are being regulated in theK048-K052 wastewaters. Theseconstituents were identified incharacterization data for untreatedK048-K052 wastes. EPA's testing offluidized bed incineration showedsubstantial treatment of theseconstituents. However, treatmentstandards were not proposed for thembecause the Agency believed that theywould be effectively controlled byincineration and regulation of otherorganic constituents (as indicators forthese constituents in the wastewaters.The Agency has chosen to regulate theseadditional organic constituents becauseit does not have any data that indicatethat these constituents would benecessarily controlled by solventextraction if only the other organicconstituents are regulated. Because theAgency did not receive any commentsnor solvent extraction treatment data forthe K048-K052 wastewater residuals(from solvent extraction), thepromulgated standards for the organicconstituents in K048-K052 wastewatersare based on the results of theperformance achievable by fluidizedbed incineration. Today's rule alsopromulgates final treatment standardsfor metal constituents in K048-K052wastewaters based on a transfer oftreatment performance data (with the

No. 159 / Wednesday, August 17, 1988 / Rules and Regulations31160 Federal Re ister / Vol. 53,




exception of arsenic values, which arebased on treatment of wastewaters ofthese petroleum refining wastes) forwastewaters containing metals usingchromium reduction, lime and sulfideprecipitation and vacuum filtration, asproposed.



Constituent Total

composition TCLP (mg/)(mg/kg)

Benzene ......................... 9.5 (')Benzo(a)pyrene ............. 0.84 (')Bis(2-

ethylhexyl)phthalate.. 37 (')Chrysene ........................ 2.2 (')Di-n-butyl phthalate 4.2 (')Ethylbenzene ................. 67 (')Naphthalene .................. (2) (1)Phenanthrene ................ 7.7 (')Phenol ............................ 2.7 (')Pyrene ............................ 2.0 (')Toluene ........................ 9.5 (')Xylenes ........................ (2) (1)Cyanides (total) ............. 1.8 (')Arsenic............... (') 0.004Chromium (total) '........... V) 1.7Nickel ............................. C') 0.048Selenium ........................ (') 0.025

Not applicable.

'Reserved.


[Wastewaters]


grab sample

Constituent Total


Benzene ........................ 0.011 (')Benzo(a)pyrene ............. .047 (')Bis(2-

ethylhexyl)phthalate.. .043 (')Chrysene ........................ .043 (')Di-n-butyl phthalate .060 (')Ethylbenzene ................. .011 (')Fluorene ......................... .050 (')Naphthalene .................. .033 (')Phenanthrene ................ .039 (')Phenol ............................ .047 (')Pyrene ............................ .045 (')Toluene ........................ .011 ()Xylenes ........................ .011 (')Chromium (total) ........... .20 )Lead .............................. .037 (')

Not applicable.


(Nonwastewaters])



(mg/kg)

BDAT TREATMENT STANDARDS FOR

K049-Continued

[Nonwastewaters])


grab sampleConstituent Total


Bis(2-ethylhexyl)phthalate. 37 (')

Chrysene ....................... 2.2 (')Ethylbenzene ................ 67 (')Naphthalene ................. (2) (=)Phenanthrene ............... 7.7 (')Phenol ........................... 2.7 (')Pyrene ........................... 2.0 (')Toluene ......................... 9.5 (')Xylenes ......................... () (I)Cyanides (total) ............ 1.8 (I)Arsenic .......................... (') 0.004Chromium (total) .......... (') 1.7Nickel ............................. (1) 0.048Selenium ........................ () 0.025

Not applicable.2 Reserved.


[Wastewaters]


grab sampie


(mg/)

Anthracene ................... 0.039 (')Benzene ......................... .011 (')Benzo(a)pyrene ............ . 047 (')Bis(2-

ethylhexyl)phthalate. .043 (')Carbon disulfide ........... . 011 (')Chrysene ....................... .043 (')2,4-Dimethylphenol .033 (')Ethylbenzene ................. .011 (')Naphthalene ................. . 033 (')Phenanthrene ............... . 039 (')Phenol ........................... .047 (')Pyrene ........................... .045 (')Toluene ......................... .011 C)Xylenes ......................... .011 (')Chromium (total) .......... . 20 ()Lead .............................. .037 (')

'Not applicable.


(Nonwastewaters]


Constituent Total


Benzo(a)pyrene ............ 0.84 (')Phenol ............................ 2.7 (')Cyanides (total) ............. 1.8 (')Arsenic ........................... () 0.004Chromium (total) ........... (') 1.7Nickel ............................ (') .048Selenium ....................... (') .025

' Not applicable.


[Wastewaters]


grab sample


(mg/i) _

Benzo(a)pyrene ............. 0.047 (')Phenol ............................. .047 (')Chromium (total) ............ .20 ()Lead .................................037 (')

Not applicable.


[Nonwastewaters]


Constituent Total

composition TCLP (mg/i)(mg/kg)

Anthracene .................... 6.2 (')Benzene .. .............. 9.5 (')Benzo(a)anthracene 1.4 (')Benzo(a)pyrene ............. .84 (1)Bis(2-

ethylhexyl)phthalate.. 37 (')Chrysene ........................ 2.2 (')Di-n-butyl phthalate ...... 4.2 (1)Ethylbenzene ................. 67 (')Naphthalene .................. (2) (I)Phenanthrene ................ 7.7 (1)Phenol .......................... 2.7 (1)Pyrene ............................ 2.0 (')Toluene .......................... 9.5 (1)Xylenes .......................... (2) (1)

Cyanides (total) ............ 1.8 (')Arsenic ........................... () 0.004Chromium (total) ........... (1) 1.7Nickel ............................. (1) .048Selenium ........................ () .025



[Wastewaters]


grab sample


(mg/I)

Acenaphthene ................ 0.050 (')Anthracene ..................... .039 (')Benzene .......................... .011 (')Benzo(a)anthracene ...... .043 ()Benzo(a)pyrene .............. .047 (')Bis(2-

ethylhexyl)phthalate .043 (')Chrysene ......................... .043 (')Di-n-butyl-phthalate ....... .060 ()Ethylbenzene .................. .011 (')Fluorene .......................... .050 (')Naphthalene ................... .033 (')Phenanthrene ................. .039 (')Phenol ............................. .047 (')Pyrene ............................. .045 (')Toluene ........................... .011 (')Xylenes ........................... .011 (')Chromium (total) ............ .20 ()Lead ................................ .037 (')

'Not applicable.Anthracene ....................Benzene .........................Benzo(a)pyrene ..........

6.2 (')9.5 (')0.84 (')







(mg/kg)

Benzene ......................... 9.5 (I)Benzo(a)pyrene .............. 84 (')o-Cresol ......................... 2.2 (')p-Cresol ..........................90 (')Ethylbenzene ................. 67 (I)Naphthalene .................. (2) ()Phenanthrene ................ 7.7 (1)Phenol ........................... 2.7 (1)Toluene ......................... 9.5 (')Xylenas ......................... (2) ()Cyanides (total) ............. 1.8 (')Arsenic ........................... (1) 0,004Chromium (total) ........... (,) 1.7Nickel ............................. (1) .048Selenium ........................ (1) .025



[Wastewaters]



(mg/I)

Benzene .......................... 0.011 (')Benzo(a)pyrene .............. .047 (')o-Cresol .......................... .011 (')p-Cresol ........................... .011 (')2,4-Dlmethylphenol .033 (I)Ethylbenzene .................. .011 (')Naphthalene ................... .033 (1)Phenanthrene ................. .039 (')Phenol ................ .. 047 (1)Toluene .............. .011 (')Xylenes ............. .011 (')Chromium (total) .20 (')Lead ................................ .037 ()

I Not applicable.

1. K061-Emission control dust!sludge from the primary production ofsteel in electric furnaces. Today's rulerevises and promulgates final treatmentstandards for K061 nonwastewaters.The standards proposed on April 8,1988, were based on the performance ofa high temperature metals recovery(HMTR) unit. HMTR results in theformation of a residual slag which wasanalyzed to determine the performanceof this technology. EPA receivedextensive comments from industryopposing the applicability,demonstrability, and economics ofHTMR for low zinc content K061. Asinitially proposed, treatment standardsfor K061 wastes with greater than 2.4%total zinc were based on HTMR.However, the applicability of thesestandards was based on theconcentration of zinc in the residual slagfrom HTMR; EPA did not consider the

optimum operating feed concentrationsfor zinc. Several commentersspecifically stated that HMTR is notfeasible at total zinc concentrations inthe feed material of below 5% by weight.Other commenters proposed minimumzinc concentrations of 20% zinc. Themajority of the comments centered on15% zinc as a minimum. Review of thesampling data from EPA's testing ofHTMR indicates that the minimum feedconcentration of zinc was 12.9% and themean value of the feed concentrationswas 14.3%. Many commenters urgedEPA to establish treatment standardsbased on the performance ofstabilization, with the concentrationlevels to be based on the data containedin EPA's background document for theproposed rule.

Based on review of this data and inresponse to the comments on minimumfeed concentration of zinc, the Agencyhas decided to promulgate a final rulewith two subcategories of K061nonwastewaters: a High ZincSubcategory (greater than or equal to15% total zinc) and a Low ZincSubcategory (less than 15% total zinc).

For the K061 High Zinc Subcategory, afinal BDAT treatment standard of "noland disposal" will become effective onAugust 8, 1990, based on HTMR. Asdescribed later in this preamble, EPA isdeferring the effective date until August8, 1990 because of inadequate HTMRcapacity to meet the demand that willbe created by this rule. During the twoyear period until August 8, 1990, interimtreatment standards for the K061 HighZinc Subcategory, based onstabilization, are applicable. Theseinterim standards are identical to thefinal standards for the K061 Low ZincSubcategory described in this section.

EPA sees no legal obstacle in adoptingan interim treatment standard until suchtime as the "no land disposal" standardtakes effect. If there is insufficientcapacity presently available for the besttreatment technology, EPA is notprecluded from requiring that the nextbest treatment be utilized in the interim.The alternative would be to allowdisposal of untreated hazardous wastesduring the interim period. In addition,during the two year period, K061 wastesin the High Zinc Subcategory treated tomeet the interim standard based onstabilization may be disposed inlandfills that do not meet the minimumtechnology requirements. Since manycommenters complained that if K061became subject to the soft hammer theywould be unable to dispose of the wastein these types of units, an interimtreatment standard affords thesecommenters a measure of relief.

The treatment standard of "no landdisposal" for the High Zinc Subcategoryof K061 is based on the use of HTMR torecover zinc from K061 containing morethan 15% total zinc. Several classes ofHTMR systems exist including rotarykilns, flame reactors, electric furnaces,plasma arc furnaces, slag reactors, androtary hearth kiln/electric furnacecombinations. EPA is not requiring orrecommending any specific class ofHTMR as BDAT. The Agency believesthat establishing HTMR as BDAT forthese wastes is consistent with thenational policy identified in HSWA toreduce the quantity of hazardousconstituents treated and disposed. EPAhas data that indicate thatapproximately 75% (by volume) of K061wastes are classified as high zinc K061wastes and contain zinc atconcentrations equal to or greater than15% by weight. At the same time, up to60% of the total number of facilitiesgenerating K061 generate low zinc K061wastes representing only 25% of thevolume of K061.

In considering the HTMR standard forK061 wastes in the High ZincSubcategory and specifically whether ornot to express the standard asconcentrations in the residuals fromHTMR, the Agency considered theposition stated in the proposed rule thatif a secondary material being reclaimedin an industrial furnace is "indigenous"to that furnace, it ceases being a wastewhen it is reclaimed. The Agency hasproposed to define "indigenous" to beany material generated by the same typeof furnace in which it will be reclaimed.See proposed § 266.30(a), 52 FR 17034,May 6, 1987. The Agency consideredother possible alternatives in the May 6.1987 proposal, and commenterssuggested additional possibleinterpretations which the Agency is nowconsidering. However, the type ofprocessing used to recover zinc fromK061, plus the similarity of K061 to theraw materials smelted in zinc furnaces,appears to qualify K061 as "indigenous"under any of the current options beingconsidered. Therefore, the Agency ispromulgating a "no land disposal"standard for the High Zinc Subcategoryin anticipation that a final definition of"indigenous" wastes that. would includeHTMR of K061 will be promulgated priorto the August 8, 1990 effective date ofthis standard. Also, the Agency is notprecluded from revising the HTMRstandard of "no land disposal" if thedefinition of "indigenous" waste is notmade final or if it is altered in a waythat might conceivably implicate theslag.





For the K061 Low Zinc Subcategory,final BDAT treatment standards, basedon stabilization, will become effectiveon August 8, 1988. The regulatedconstituents and BDAT treatmentstandards for the two subcategories ofK061 nonwastewaters are listed in thetables at the end of this section.

The revised BDAT treatmentstandards based on stabilization wereestablished using performance datacollected by EPA and previouslyreferenced in the K081 and F006background documents for the proposedrule. For lead and cadmium, thetreatment standards for bothsubcategories are based on stabilizationof a waste in the K061 nonwastewaterHigh Zinc Subcategory. For totalchromium, the treatment standards arebased on stabilization of F006 wastescontaining chromium. EPA has decidedto transfer the chromium standard fromF008 nonwastewaters to K061nonwastewaters as a result of commentsfrom manufacturers of specialty andstainless steel. These commenterspointed out that their K061 wastesrequired a separate treatment standard,due to high concentrations of chromiumcompared to the K061 from carbon steelmanufacturers, which EPA tested. TheAgency evaluated all available datacharacterizing K061 generated byspecialty steel, stainless steel, andcarbon steel production. The Agencyagrees that there is a need to establish atreatment standard that accounts for thehigher concentrations of chromiumpresent in K061 generated by specialtyand stainless steel production.Consequently, the Agency ispromulgating the treatment standard forchromium based on stabilization of F006electroplating wastes, many of whichcontain concentrations of chromiumsimilar to those found in K061 generatedby specialty and stainless steelproduction.

Nickel has been added to the list ofregulated constituents since the time ofproposal for two reasons. First, theproposed treatment standard was basedon a technology (HTMR) whichconcentrated nickel in the treatmentresidual, and therefore, was notproposed as a regulated constituent. Thefinal rule is based on a technology(stabilization) which shows significantreductions in the leachability of nickel.Since the final rule establishes metalconcentrations in the waste extract, theAgency is, establishing treatmentstandards for all constituents which arepresent at significant concentrations.For further discussion of regulatedconstituents see the BackgroundDocument for K061. Second, several

commenters presented data showingthat K061 from specialty and stainlesssteel production contain higherconcentrations of chromium and nickelthan the K061 from carbon steel whichwere previously stabilized. The Agencyagrees that nickel is present in theseK061 wastes at significantly higherlevels, and therefore, is promulgating atreatment standard for nickel. Thisstandard is based on stabilization ofelectroplating wastes (F006) containingconcentrations of nickel similar to theseK061 wastes.

For all K061.nonwastewaters, BDATtreatment standards are establishedbased on cadmium, total chromium, leadand nickel concentrations in the wasteextract using the TCLP. Severalcommenters questioned the Agency'sdecision not to use the data submittedas concentrations of constituents in thewaste extract from the ExtractionProcedure (EP) test. Several commentersalso suggested that EP and TCLP testresults were similar for K061. Data wassubmitted comparing EP and TCLPresults for stabilized K061 wastes. Thisdata showed no statistical difference inthe results for the regulated constituents;however, the EP data did not includeimportant information necessary forcomplete evaluation. Information .missing included waste characterizationof the untreated K061 wastes, designand operating data, mix ratios ofsolidification reagents, and laboratoryquality assurance data. Consequently,the stabilization data provided whichcontained EP extract results were notused in calculation of the treatmentstandards for K061 nonwastewaters.

Several commenters stated that EPAshould not regulate zinc because it is nota constituent specifically listed onAppendix VIII of 40 CFR Part 261. TheAgency does not totally agree, in thatzinc cyanide and zinc phosphide arelisted on Appendix VIII. Further, zinc isan aquatic toxin, and the Agencyconsidered adding it to Appendix VIIIfor that reason. However, in thisrulemaking the Agency is onlyregulating zinc when it is an indicator ofperformance of treatment for otherAppendix VIII constituents. Further, theAgency believes that zinc is controlledby stabilization of the metal constituentsthat are regulated by today's rule and isnot promulgating zinc standards foreither of the subcategories of K061.

However, the Agency is establishingthe definitions of these subcategoriesbased on the total concentration of zinc.While a treatment standard is notactually being set, it is necessary todetermine the total zinc concentration todetermine applicability of the

appropriate standard. (See EPADocument SW-846, "Test Methods forEvaluating Solid Wastes", Third Edition,for guidance on composite sampling todetermine if the 15 percent limit is met.)A facility is not allowed to dilute orperform partial treatment on a K061waste in order to switch theapplicability of the standard for theHigh Zinc Subcategory to the standardfor the Low Zinc Subcategory. However,the Agency does recognize that K061wastes in the Low Zinc Subcategory areoften blended with wastes in the HighZinc Subcategory in order to obtain anoptimum feed concentration for zinc.The Agency does not intend to precludethis operation, and furthermore, believesthat this should not be a restrictedpractice, because the effective result ofthis practice is the applicability of astandard that is more stringent i.e., fromstabilization to "no land disposal" (afterAugust 8, 1990).

Today's rule is not promulgating theproposed treatment standard of "noland disposal" for K061 wastewaters.The basis of the wastewater standardwas the premise that K061 was notanticipated to be generated. Severalcommenters provided information to thecontrary indicating that K061wastewaters are being generated andwill continue to be generated. Severalfacilities indicated that their K061nonwastewaters are generated as wetsludges rather than as dry baghousedust. The water from treating and/ordewatering these sludges are classifiedas K061 wastewaters. In addition, themajority of the volume of K061nonwastewaters has been historicallydisposed in landfills. The aqueousleachate collected from these landfillsare "derived-from" (061 wastewaters.Commenters have also identifiedadditional specific sources ofwastewater forms of K061 such as thosebeing generated at a CERCLA site,during a corrective action at a RCRAfacility, as a leachate from a landfill,and as a residual from treatmentprocesses such as dewatering. Sincegeneration of K061 wastewaters doesoccur, the premise of no generation as abasis for the treatment standard of "noland disposal" is invalid. Therefore, theAgency cannot promulgate the proposedstandard of "no land disposal" for K061wastewaters as final. Since no standardis established for K061 wastewaters, thissubgroup of wastes is restricted fromland disposal according to the "softhammer" provisions. EPA intends todevelop and propose numericaltreatment standards by May 8, 1990.[Note.-As discussed in detail in sectionIII.C.3., EPA is amending § 268.12 to





include wastewater residues derivedfrom the treatment of "soft hammer"wastes by certain processes, as well asleachate derived from the managementof "soft hammer" wastes and "softhammer" waste contaminatedgroundwater, thereby moving theaforementioned types of wastewatersinto the group of wastes identified as theThird Third. Thus, these types of K061wastewaters are not subject to the "softhammer" prohibitions in § 268.33(f). Thisaction will allow these wastewaterresidues to be disposed in nonminimumtechnology units and such residues willnot be subject to the certificationrequirements of § 268.8.1

EPA solicited comment in the April 8,1988, notice on the issue of whethercommercial fertilizers that contain KO61dust as an ingredient should be requiredto meet BDAT as a condition ofremaining exempt from the remainingRCRA standards when they are appliedto the land. See 40 CFR § 266.20. Afterconsidering the public comment on thisissue, EPA has decided not to amend theexisting exemption at this time. Ourreasons are the following: (1) Existingdata appear to indicate that applicationof these fertilizers to the crops to whichzinc-based fertilizers are applied doesnot pose significant risk from either afood chain contamination pathway or agroundwater contamination pathway;and (2) Constituent levels (and levels ofextractable metals) of some of the toxicmetals in zinc-based fertilizers arevirtually the same, whether or not thefertilizers contain K061; levels of theremaining constituent (lead) are morevariable, although some of the non K061fertilizers (i.e., those fertilizers whosezinc comes from a non-waste source]contain more lead than any K061fertilizer for which EPA has data. It thusis possible (although further study anddata-gathering are required) that EPAcould ultimately classify K061 basedfertilizers as products rather thanwastes.

It thus does not appear to the Agencyto be the proper time to remove theexisting exemption for these fertilizers.Because there has been no opportunityfor notice and comment, and because ofincomplete data, it also would not beproper to reclassify these fertilizers atthis time. Accordingly, EPA is not takingaction at this time, and so is leaving inplace the exemption for zinc-containingfertilizers that include K061 wastes asingredients.

A number of commenters (althoughnone from the fertilizer industry)maintained that hazardous waste-

derived fertilizers are not subject toRCRA at all, because the hazardouswaste are not "discarded materials",and so are no, solid wastes. They citedAmerican Mining Congress v. EPA, 824F.2d 1177 (D.C. Cir. 1987) for thisproposition. EPA does not agree. TheAgency views the practice as discardingfor several reasons: (1) recyclinginvolving direct placement of hazardoussecondary materials on the land for finaldisposition is discarding because it islike land disposal, (2) unwantedcontaminants in the hazardoussecondary materials (for example, leadand cadmium in K061).which in no waycontribute to recycling are being gottenrid of and in fact being disposed of.(Should it prove that lead and cadmiumare present in hazardous waste andnonhazardous waste-derived zincfertilizers at similar concentrations, thislast point would no longer apply.) Thisuse constituting disposal situation alsodoes not involve the type of ongoingindustrial process discussed by the courtin the above-cited case. The Agencymoreover finds these commenters'arguments unpersuasive given that theywould make legal under RCRA suchinfamous use constituting disposalsituations as Times Beach, Missouri (useof hazardous distillation bottom as dustsuppressants). The Agency is convincedthat neither Congress nor the courtcontemplated any such results.

INTERIM TREATMENT STANDARDS FORK061

[Nonwastewaters]

[High Zinc Subcategory-Equal to or Greater than15%]

[effective until August 8, 1990]



(mg/kg)

Cadmium.............. (') 0.14Chromium (Total) .() 5.2Lead ............................... (3) 0.24Nickel ............................. (') 0.32

Not applicable.

TREATMENT STANDARDS FOR K061

[Nonwastewaters]

(High Zinc Subcategory-Greater than 15%]

[Effective after August 8, 1990]

NO LAND DISPOSAL BASED ON RECYCLING


(Nonwastewaters]

[Low Zinc Subcategory-Less than 15%]



(mg/kg)

Cadmium ......................... (') 0.14Chromium (Total) ........... () 5.2Lead ............................... (I) 0.24Nickel .............................. (I) 0.32

'Not applicable.

m. KO62-Spent pickle liquorgenerated by steel finishing operationsof facilities within the iron and steelindustry (SIC Codes 331 and 332).Today's rule promulgates final treatmentstandards for K062 wastewaters andnonwastewaters as proposed. Asinitially generated, K062 spent pickleliquors contain less than 1% filterablesolids and are classified as K062wastewaters. Treatment standards forboth K062 wastewaters andnonwastewaters were established basedon the performance of chromiumreduction followed by chemicalprecipitation with sulfide followed byprecipitation, settling, filtering anddewatering of the solid residues. Thestandards for K062 wastewaters arebased on the concentrations of metals inthe wastewater residual from thisprocess. The standards for K062nonwastewaters are based on theanalysis of TCLP leachates of thedewatered solid residues.

The standards shown below apply toall K062 wastewaters andnonwastewaters with the exception ofresidues generated as a result of lime(Ca(OH)2) treatment that are notclassified as hazardous wastesaccording to 40 CFR 261.3(c)(2)(ii) unlessthey are hazardous because they exhibita characteristic. Therefore, any suchresidues would not have to comply withthe BDAT treatment standards. Thetreatment standards do apply, however,to residues generated by other than limeprecipitation.

A comment received on the August 12,1987 Notice of Data Availability andRequest for Comments (52 FR 29992)suggested that K062 nonwastewaterscan be treated by high temperaturemetals recovery (HTMR). At this time,the applicability of HTMR to all K062nonwastewaters has not beensufficiently verified in order to developadditional treatment standards. The



No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 311C5

concentrations and identity of metals inK062 wastewaters vary widelydepending on the specific steel beingpickled. EPA has not been able to defineany particular subcategories of K062nonwastewaters that would beamenable to a particular recoveryprocess.

Commenters also stated that sinceEPA is requiring the use of sulfide as aprecipitant for K062 wastewaters,various recovery processes that aredesigned to recover metals from metalhydroxide precipitates would beprecluded from use. This is not the case,for EPA is not requiring the use ofsulfide, but rather establishing aperformance standard for the K062wastes. These standards do not excludethe use of lime as a precipitant. In fact,the Agency has information that themajority of generators are indeed usinglime as a precipitant. These limeresidues can already be sent to HTMRwithout meeting the standards for K062nonwastewaters.

One commenter stated that EPAshould alter the regulatory provision(§ 261.3(c)(2)(ii)) that excludes limeprecipitated K062 nonwastewaters fromthe derived from rule. They stated that ifsulfide precipitation can achieve ahigher water quality, then it should beBDAT for all K062 wastewaters. TheAgency cannot remove this exemptionwithout following rulemakingprocedures, and did not propose thechange.

One commenter stated that sinceaqueous metal recovery processes formetal contaminated wastewaters existand are being used, EPA should forceK062 wastewaters to use them byestablishing a treatment standard of "noland disposal" for K062. At this time, theapplicability of these recovery processesto K062 wastewaters has not beensufficiently verified in order to establisha "no land disposal" standard. The highacid content and high variability inconcentrations and identity of metals inthese wastewaters may preclude the useof some technologies such as reverseosmosis and cation exchange due to thestrong possibility that the acid or othermetals could foul the recovery process.Thus, the Agency believes that astandard of "no land disposal" mayeventually be possible to promulgate forcertain subcategories of K062. However,it is unlikely that this standard would bejustified for all K062 wastes. At thistime, EPA has not been able to defineany particular subcategories of K062wastewaters that would be amenable toa particular aqueous recovery process.

Several commenters argued that EPAshould not regulate copper because it isnot a hazardous constituent specificallylisted on Appendix VIII of 40 CFR Part261. EPA has decided not to regulatecopper here for the reasons statedearlier in connection with F0 wastes.


[Nonwastewaters]



(mg/kg)

Chromium (total) (') 0.094

Lead ............................... (') .37

Not applicable.


[Wastewaters]


Constituent Total


Chromium (total) ............. 0.32 (')Lead ............................... .. 04 (')Nickel ............................... 44 (I)

Not applicable.

n. K069-Emission control dustisludge from secondary lead smelting.The BDAT treatment standard of "noland disposal" for K069 wastewatersand nonwastewaters was proposedbased on information supplied to theAgency that indicated that K069 wasteswere totally recyclable withoutgeneration of residuals. In response tothis premise, one commenter providedinformation that they generate a K069nonwastewater that cannot be directlyrecycled due to a significantly differentchemical composition. The informationalso indicates, that, while the wastebeing generated meets the definition ofthe listed waste K069, there also is asignificant difference in how it is beinggenerated.

Most K069 wastes are baghouse dustsand scrubber sludges that act as primaryair pollution control devices (APCD).The commenter's facility utilizes abaghouse for particulate collection as itsprimary APCD. In addition, the airleaving the baghouse is sent through a"secondary" APCD, consisting of a wetventuri scrubber utilizing limeneutralization. This "secondary" APCDhas been installed primarily to reducesulfur dioxide emissions. The sludgefrom this process is technically thelisted waste, K069, but consists

primarily of lead contaminated calciumsulfate and calcium hydroxide ratherthan metallic lead, lead oxides, andmetal oxides that comprise typicalbaghouse dusts. In addition, the facilitystated that it has experimented withother neutralizing agents to produce areclaimable sludge, but has notsucceeded. At the time of this rule, theAgency has not completed its analysisof all of this information. However, itdoes believe that these K069 wastes arefundamentally different and that thebasis of total recycling for the proposedstandard of "no land disposal" for K069wastes is not justifiably extrapolated tothese types of K069 wastes.

For the purposes of this rule, theAgency is establishing a Calcium SulfateSubcategory and a Non Calcium SulfateSubcategory for K069 nonwastewaters.The Calcium Sulfate Subcategory isdefined as those emission controlsludges from secondary lead smeltingthat are generated as calcium sulfatefrom secondary wet scrubbers usinglime neutralization. The Non CalciumSulfate Subcategory is defined as thoseemission control sludges from secondarylead smelting that are not generated ascalcium sulfate from secondary wetscrubbers using lime neutralization. It isimportant to point out that thisdefinition specifically includes"secondary" wet scrubbers. The Agencyalso recognizes that K069 may begenerated as a wet scrubber sludge fromother primary APCDs and that theprimary APCD may incorporate limeneutralization. Because no commentswere received from generators of K069from these type of primary APCDs, theAgency assumes that the generatorsagree with EPA's assessment ofrecyclability of these wastes. As aresult, the Agency has decided topromulgate a final BDAT treatmentstandard of "no land disposal" based ontotal recycling for those K069nonwastewaters in the Non CalciumSulfate Subcategory. EPA intends topropose and promulgate numericaltreatment standards for K069nonwastewaters in the Calcium SulfateSubcategory (i.e., those from secondarywet scrubbers using lime neutralization)prior to May 8, 1990.

Commenters have also identifiedadditional specific sources ofwastewater forms of K069 such as thosebeing generated at a CERCLA site,during a corrective action at a RCRAfacility, and as a leachate from alandfill. In the proposed rule, EPA hadbased a "no land disposal" standard forthe wastewaters on the belief that thetotal recycling process generated no




31166 Federal Register / Vol. 53, No. 159 / Wednesday. August 17, 1988 / Rules and Regulationswastewater residuals and that it wasunlikely that other wastewater forms ofK069 would be produced. Sincegeneration of does occur, the premise ofno generation as the basis for thestandard appears to be unjustified. As aresult, the Agency is therefore unable topromulgate a treatment standard forthese wastewaters in today's rule. EPAdoes intend to propose and promulgatenumerical treatment standards for thesewastes prior to May 8, 1990. Since nostandard is promulgated in today's rulefor these K069 wastewaters, they arerestricted from land disposal accordingto the "soft hammer" provisions.[Note.-As discussed in detail in sectionIII.C.3., EPA is amending § 268.12 toinclude wastewater residues derivedfrom the treatment of "soft hammer"wastes by certain processes, as well asleachate derived from the managementof "soft hammer" wastes and "softhammer" waste contaminatedgroundwater, thereby moving theaforementioned types of wastewatersInto the group of wastes identified as theThird Third. Thus, these types of K069wastewaters are not subject to the "softhammer" prohibitions in § 268.33 (f).This action will allow these wastewaterresidues to be disposed in nonminimumtechnology units and such residues willnot be subject to the certificationrequirements of § 268.8.]


[Non Calcium Sulfate Subcategory]

NO LAND DISPOSAL BASED ON RECYCLING

o. K071-Brine purification muds fromthe mercury cell process in chlorineproduction, where separatelyprepurified brine is not used. Today'srule promulgates final treatmentstandards for K071 wastewaters andnonwastewaters. Analysis of a TCLPleachate for mercury is necessary toestablish compliance with the treatmentstandard for K071 nonwastewaters. ForK071 wastewaters, a total wasteanalysis for mercury is necessary toestablish compliance with the standard.These standards are listed in the tableat the end of this section.

The treatment standard for the K071nonwastewaters was established basedon the performance of a treatmentprocess that includes a series ofindividual steps. The main purpose ofwhich is to solubilize the mercury in theK071 brine sludge and later convert themercury to a relatively insolublemercury sulfide sludge. Mercury sulfide

is one of the least soluble forms ofmercury salts. Initially, the K071 brinesludge is leached with acid to solubilizecertain forms of mercury. The sludgeand acid leachate are mixed with analkaline hypochlorite to oxidize themercury to a highly soluble mercuricchloride (this also raises the pH). Theresultant sludge is then washed withhydrochloric acid and water during afiltration step. The treatment standardfor K071 nonwastewaters is based onthe leachability of mercury from thisfilter cake. The filtrate contains thesolubilized mercury, which is thenprecipitated out as a mercury sulfidesludge. This sulfide sludge is alsofiltered and/or dewatered. The aqueousresidual from this process is classifiedas a K071 wastewater and must meetthe treatment standard for mercury inK071 wastewaters. The sulfide sludge isclassified as a K071 nonwastewater,unless the liquids were combined withother wastewaters from the mercury cellprocess prior to treatment. If so, it is awastewater treatment residual listedspecifically as K106. The Agency hasdata that indicate that this sulfidesludge (be it K071 or K106) will meet thetreatment standard for K071nonwastewaters, that was derived fromthe leachability of residual mercury inthe leached brine sludge.

One commenter provided data on aspecialized stabilization process forK071 brine sludges as they are initiallygenerated (without acid or waterwashing). These data were generatedfrom bench scale operations. TheAgency has not determined whether thisprocess has been demonstrated, as yet,on a full scale basis. The Agency is stillin the process of examining thestabilization data for K071nonwastewaters (as a process in lieu ofacid leaching) that was submitted. EPAwill determine if these data demonstratesufficient treatment to be proposed asan alternative to acid leaching. At thetime of this rule, EPA has insufficientinformation to establish directstabilization as a demonstratedtreatment alternative to the acidleaching procedure previouslydescribed.

Extensive EP leachate data weresubmitted to EPA by three facilitiesusing only a water washing followed bya dewatering process. One of the threefacilities supplied TCLP mercuryconcentrations for the treated K071. EPAconsidered, but did not use, any of thesedata points in the development of thetreatment standards because theanalysis of variance tests showedsignificantly better treatment wasachieved by the acid leaching

procedure. However, EPA would like toemphasize that other treatmenttechnologies such as stabilization orwater washing are not precluded fromuse by today's rule, provided that thesetechnologies or combination oftechnologies can achieve the equivalentperformance as measured by thetreatment standards promulgated asfinal in today's rule.

Several commenters also stated thatEPA wrongly considered the informationindicating that the TCLP is a bettermeasure of evaluating BDATperformance than the EP (ExtractionProcedure). Data were submittedcomparing EP data to TCLP data in bothtreated and untreated K071 wastes.Statistical analyses, performed by EPA,show that the EP and the TCLPprocedures yield statistically similarresults on the leachability of mercury inK071 wastes. Based on industry'swillingness to accept a TCLP standardbased on EP data and EPA analysisindicating a statistical relationshipbetween the respective extractionmethods for K071 wastes, the Agencyhas incorporated the additional EP datainto its calculation of the final treatmentstandard for K071 nonwastewaters.However, the Agency maintains itsposition that, in general, the TCLP is abetter measure of evaluating BDAT thanthe EP, except where data such as theseexist for tests performed on the sametreated waste.

Several commenters stated that a totalmercury analysis is an inappropriatemeasure of performance for K071nonwastewaters, since the BDATtreatment system is not designed as acomplete recovery system (i.e., mercuryis not being recovered directly, butrather it is being converted torecoverable mercury sulfides). At thetime of the proposal, the Agency wasdeveloping a standard for K106(wastewater treatment residues that areprimarily mercury sulfides) based on"recovery of the mercury by retorting ofK106 wastes. EPA had determined thatthe mercury sulfide residues fromtreatment of K071 wastes were eitherthe listed waste K106 or were similarenough to K106 wastes that they couldbe retorted for mercury recovery. EPAreceived extensive comments fromindustry opposing the applicability,demonstrability, and economics ofretorting K106. At the same time, EPAhas examined the data on the treatmentof K106 and determined that there wasinsufficient data to support thepromulgation of the proposed treatmentstandards based on retorting. Seediscussion of K106 wastes in sectionIII.A.7.w. of this preamble. Since





recovery of K071 mercury sulfideresidues was based on theestablishment of retorting as BDAT forK108 and since the Agency has decidednot to promulgate the standards for K106at this time, EPA has decided topromulgate the treatment standard forK071 nonwastewaters only on theanalysis of the TCLP leachate and noton a total mercury analysis. [Note: Aspreviously stated, EPA prefers toestablish treatment standards based ontotal metal analysis only when recoveryis established as BDAT.] However, theAgency is not precluded from addingthis requirement in the future, if atreatment standard based on retorting orsome other recovery process ispromulgated for K106 wastes.


[Nonwastewaters]



(mg/kg)

Mercury.......................... (') 0.025

Not applicable.


[Wastewaters]



(mg/I)

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

INot applicable.

p. K073-Chlorinated hydrocarbonwaste from the purification step of thediaphragm cell process using graphiteanodes in chlorine production. TheBDAT treatment standard of "no landdisposal" for K073 wastewaters andnonwastewaters was proposed based onthe premise of "no generation". In theproposed rule, EPA specificallyrequested comment on this premise. Inresponse, several commenters statedthat at least one facility is generatingK073 wastes. Since generation has beenidentified, the Agency is not able topromulgate a final treatment standard of"no land disposal" for any K073 wastes.

Additional information provided byone commenter indicates that at leastone facility is incinerating its K073wastes onsite and that this facilityintends to cease the generation of K073in the near future. Based on thesecomments, EPA now intends to pursuethe development of BDAT treatmentstandards for K073. In particular, EPA

will evaluate the performance ofincineration on K073 provided that thisfacility intends to continue to generateK073 past May 8, 1990. If this facilityceases generation and no othergenerating facilities can be identified,EPA may decide to promulgate theproposed "no land disposal" treatmentstandard prior to May 8, 1990. However,since no standard is promulgated intoday's rule for K073 wastes, thesewastes are restricted from land disposalaccording to the "soft hammer"provisions. [Note.-As discussed indetail in section III.C.3., EPA isamending § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "soft hammer"waste contaminated groundwater;thereby moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.Thus, these types of K073 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33(f). This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.]

It is also important to note that, untilstandards for all K073 wastes arepromulgated, those (073 wastescontaining halogenated organics mayonly be land disposed as long as they donot exceed a total halogenated organicconcentration of 1000 ppm established inthe July 8, 1987 promulgated restrictionsfor "California List" wastes.

q. K083-Distillation bottoms fromaniline production. The BDAT treatmentstandard of "no land disposal" for K083wastewaters and nonwastewaters wasproposed based on the performance of aliquid injection incinerator thatgenerated no residuals. The K083nonwastewater examined by EPA,contained no measurable ash content(solid residues from incineration) at adetection limit of 0.01% by weight. Theliquid incineration unit that EPA visited,did not have a vent scrubber or otherpollution control device and did notgenerate any scrubber water. Thisinformation was the basis of the "noland disposal" standard for K083.

In the proposed rule, EPA specificallyrequested comment on the premise ofthe "no land disposal" standards forboth categories of K083 wastes. Inresponse, several commenters statedthat they do generate K083nonwastewaters with detectable levelsof ash and K083 wastewaters asscrubber waters. Since generation of

these wastes has been identified, thepremises of "no ash" and."nogeneration" may be unjustified for allK083 wastes.

As a result, the Agency has decided topromulgate a final rule of "no landdisposal" only for one subcategory ofK083 nonwastewater. This subcategoryis identified as the No Ash Subcategoryand is defined as those K083nonwastewaters with less than 0.01% byweight ash.

The use of other treatmenttechnologies are not precluded by thisrule. For example, while rotary kiln andfluidized bed incinerators are generallydesigned to handle solids and sludges,these units often are designed toincinerate liquids. In any case wherethese or other treatment technologiescan treat K083 without generating anash or other solid residual, these unitsmay be used to achieve the "no landdisposal" standard for the K083nonwastewaters.

EPA does intend to investigate thecomments submitted and, if necessary,propose and promulgate numericaltreatment standards for K083nonwastewaters with detectable ashcontent and K083 wastewaters prior toMay 8, 1990. Since no standard ispromulgated in today's rule for theseK083 wastes, they are restricted fromland disposal according to the "softhammer" provisions. [Note.-Asdiscussed in detail in section III.C.3.,EPA is amending § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "soft hammer"waste contaminated groundwater;thereby moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.Thus, these types of K083 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33(f). This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.]


[No Ash Subcategory-Less than 0.01%]

NO LAND DISPOSAL' BASED ON NO ASH

r. K086-Solvent washes and sludges,'. 1caustic washes and sludges, or waterwashes. and sludges. from the cleaning of




31168 Federal Register I Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

tubs and equipment used in theformulation of ink from pigments, driers,soaps, and stabilizers containingchromium and lead. In today's rule, EPAis promulgating final treatmentstandards for seventeen organicconstituents and two metal constituentsin wastewaters and nonwastewaters inthe K086 Solvent Washes Subcategory.These are acetone, n-butyl alcohol, ethylacetate, ethyl benzene, methanol,methyl isobutyl ketone, methyl ethylketone, methylene chloride, toluene,1,1,1,-trichloroethane, trichloroethylene,xylenes, bis (2-ethylhexyl) phthalate,cyclohexanone, 1,2-dichlorobenzene,naphthalene, nitrobenzene, totalchromium, and lead. Treatmentstandards for all organic constituentsare based on analyses of totalconstituent concentration. Treatmentstandards for metal constituents arebased on analyses of leachate from theTCLP for all wastes identified asnonwastewaters and analyses of totalconstituent concentration for all wastesidentified as wastewaters. The finaltreatment standards for the wastewaterand nonwastewater forms of K086Solvent Washes are listed in the tablesat the end of this section.

By definition K086 wastes can be fromone of three major subcategories.(depending on the material used forwashing). These are: (1) SolventWashes; (2) Solvent Sludges; and (3)Caustic/Water Washes and Sludges. Forthe purposes of this rule, the K086Solvent Washes Subcategory is definedas those K086 wastes which are derivedfrom procedures which have used anyorganic solvents including, but notlimited to, the following: acetone, n-butyl alcohol, cyclohexanone, 1,2-dichlorobenzene, ethyl acetate, ethylbenzene, methanol, methyl isobutylketone, methyl ethyl ketone, methylenechloride, naphthalene, nitrobenzene,toluene, 1,1,1,-trichloroethane,trichloroethylene, and/or xylenes. TheAgency believes that these are the mosttypical solvents that become K086Solvent Washes. While EPA isspecifically identifying these sixteensolvents in order to clarify the definitionof this subcategory, the Agencyrecognizes that other solvents may beused by generators. In these cases, EPAhas not specifically developed treatmentstandards for that particular unlistedsolvent. While no treatment standard forthat solvent has been developed, thetreatment standards for lead and totalchromium do apply to these K086Solvent Washes. It is also important tonote that some of these solvents,including those that are specifically

listed in the definition of the SolventWashes Subcategory, are specificallylisted under the solvent waste codesF001, F002, F003, F004 and/or F005. Insuch cases, the treatment standards forthese solvent wastes that werepromulgated November 7, 1986, arealready in effect. However, where twosets of standards exist for a constituentin a particular waste that has more thanone applicable waste code, the morestringent standard is applicable for thatconstituent. For those constituentswhere standards are expressed as atotal concentration and a TCLPconcentration, both standards mayapply.

The treatment standards for all of theorganic constituents in the K086wastewaters and nonwastewaters arebased on the performance achieved byincineration. The treatment standardsfor total chromium and lead in K086wastewaters are transferred from asimilar wastewater treated at a facilitypreviously sampled by the Agency. Thewastewater treatment system includedhexavalent chromium reduction toconvert any hexavalent chromium to thetrivalent state, chemical precipitationwith excess lime to precipitate dissolvedmetals as solids, and filtration toremove these solids. The residues of thiswastewater treatment system includethe treated wastewater and the solidsthat are classified, for the purposes ofBDAT, as nonwastewaters. Theseresidues did not require furthertreatment because TCLP leachateconcentrations were not found attreatable levels. Further detailsregarding BDAT development and datatransfer are provided in the BackgroundDocument for this waste code.

For the purposes of BDAT, any solidash residues from the incineration ofnonwastewaters in the K086 SolventWashes Subcategory are also classifiedas nonwastewaters. Scrubber watersfrom air pollution control devices areclassified as wastewaters. Both of theseresidues must meet the BDAT treatmentstandards for the K086 Solvent WashesSubcategory prior to placement in landdisposal units.

While EPA has identified incinerationin units with liquid injection as BDATfor K086 Solvent Washes, othertreatment technologies such as fluidizedbed incineration, multiple hearthincineration, rotary kiln incineration,fuel substitution units, batch distillationand fractional distillation that canachieve these standards are notprecluded from use by this rule.

The Agency has data that suggeststhat approximately sixteen different

BDAT List solvents could be used toclean ink formulating equipment. EPA isconcerned that regulation of only thesolvents that were found in the testedwaste matrix would create an incentiveto simply switch to the use of othersolvents. For this reason, EPA isregulating all sixteen BDAT Listsolvents. EPA transferred theperformance data achieved for some ofthese sixteen solvents from performancedata for other solvents that had similarphysical and chemical properties. TheAgency believes that the solvents thathave been determined to be similar, canbe incinerated to the same treatmentconcentrations. Details on the transferof standards can be found in the BDATBackground Document for this wastecode. EPA specifically solicitedcomments on this transfer ofperformance data. Commenters objectedto the transfer of many of theseconstituents. However, they did notprovide sufficient data documenting thatthe proposed BDAT treatment standardsare not achievable. EPA specificallyrequested that documentation beprovided in order for the Agency toconsider potential changes in thestandards. As a result, today's rulepromulgates final treatment standardsas proposed.

Today's rule is not promulgating finaltreatment standards for K086 wastes inthe Solvent Sludges Subcategory or theCaustic/Water Washes and SludgesSubcategory. Since no standard isestablished, these subcategories of K086wastes are restricted from land disposalaccording to the "soft hammer"provisions. EPA intends to develop andpropose numerical treatment standardsby May 8, 1990. [Note.-As discussed indetail in section III.C.3., EPA isamending § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "soft hammer"waste contaminated groundwater;thereby moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.Thus, these types of K086 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33(o. This actionwill allow these wastewater residues tobe disposed in non-minimum technologyunits-although the requirements ofsection 3005(j) apply after November 8,1988--and such residues will not besubject to the certification requirementsof § 268.8.]

No. 159 / Wednesday, August 17, 1988 / Rules and Regulations31168 Federal Register / Vol. 53,





[Nonwastewaters]

[Solvent Washes Subcategory]


grab sampleConstituent Total

composition TCLP (mg/)(mg/kg)

Acetone .......................... 0.37 (')bis(2-

ethylhexy)phthalate.. .49 4')n-Butyl alcohol .............. .37 (')Cyclohexanone ............. .49 (')1,2-Dichlorobenzene .49 (')Ethyl acetate ................. .37 ()Ethyl benzene ............... .031 ()Methanol ........................ .37 (')Methylene chloride ....... .037 (Methyl ethyl ketone .37 (I)Methyl isobutyl

ketone ........................ .37 (')Naphthalene .................. .49 (1)Nitrobenzene ................. .49 (')Toluene .......................... .031 (')1,1,1-Tchloroethane ... .044 )Trichloroethylene .......... .031 )Xylenes .......................... .015 4')Chromium (total) ........... ) 0.094Lead ............................... (') .37

Not applicable.


[Wastewaters]

[Solvent Washes Subcategory]

Maximum for any singleI grab sample

Constituent Total

composition TCLP (mg/I)(mg/0) _ __

Acetone .......................... 0.015 4')bis(2-

ethylhexyl)phthaate.. .044 (')n-Butyl alcohol .............. .031 (')Cyclohexanone ............. .022 (')1,2 Dichlorobenzene .044 (')Ethyl acetate ................. .031 (1)Ethyl benzene ............... .015 ()Methanol ........................ .031 4')Methylene chloride ....... .031 )Methyl ethyl ketone ..... . 031 )Methyl isobutyl

ketone ........................ .031 (')Naphthalene .................. .044 (2)Nitrobenzene ................. .044 (')Toluene .......................... .029 (')1,1,1 -Trichloroethane ... .031 4')Trichloroethylene .......... .029 ()Xylenes .......................... .015 (I)Chromium (total) ........... .32 (Lead ................................037 (')

Not applicable.

s. K087-Decanter tank tar sludgefrom coking operations. In today's rule,EPA is promulgating final treatmentstandards for nine organic constituentsand one metal constituent in K087wastewaters and nonwastewaters.

These are acenaphthalene, benzene,chrysene, fluoranthene, indeno (1,2,3-cd)pyrene, naphthalene, phenanthrene,toluene, xylenes, and lead. Treatment

standards for all organic constituentsare based on analyses of totalconstituent concentration. Treatmentstandards for metal constituents arebased on analyses of leachate from theTCLP for all wastes identified asnonwastewaters and analyses of totalconstituent concentration for all wastesidentified as wastewaters. The finaltreatment standards for K087wastewaters and nonwastewaters arelisted in the tables at the end of thissection.

The treatment standards for all of theorganic constituents in the K087wastewaters and nonwastewaters arebased on the performance achieved byincineration in a rotary kiln. Thetreatment standards for lead in K087wastewaters are transferred from asimilar wastewater treated at a facilitypreviously sampled by the Agency. Thewastewater treatment system includedhexavalent chromium reduction toconvert any hexavalent chromium to thetrivalent state, chemical precipitationwith excess lime to precipitate dissolvedmetals as solids, and filtration toremove these solids. The residues of thiswastewater treatment system includethe treated wastewater and the solidsthat are classified, for the purposes ofBDAT, as nonwastewaters. Furtherapplication of a stabilization process tothese solids may be necessary in orderto conform with the BDAT treatmentstandards for K087 nonwastewaters.Further details regarding BDATdevelopment and data transfer areprovided in the Background Documentfor this waste code.

Several commenters stated that EPAshould not regulate acenaphthalene,phenanthrene, xylenes or zinc becausethey are not constituents specificallylisted on Appendix VII or Appendix VIIIof 40 CFR Part 261. The Agency does nottotally agree, in that coal tars, zinccyanide and zinc phosphide are listedon Appendix VIII. One of the reasonsthat EPA considers coal tars hazardousis the presence of significantconcentrations of polynuclear aromatichydrocarbons such as acenaphthaleneand phenanthrene. Xylenes have alsobeen identified in abundance in coaltars. Further, zinc is an aquatic toxin,and the Agency considered adding it toAppendix VIII for that reason. However,in this rulemaking the Agency is onlyregulating zinc when it is an indicator ofperformance of treatment for otherAppendix VIII constituents. Further, theAgency believes that zinc is controlledby treatment of lead, which is regulatedby today's rule. Therefore, EPA is notpromulgating final standards for zinc aspart of the treatment standards for K087

wastes, but is promulgating finalstandards for acenaphthalene,phenanthrene and xylenes.

For the purposes of BDAT, any solidash residues from the incineration ofK087 nonwastewaters are also classifiedas nonwastewaters. Scrubber watersfrom air pollution control devices areclassified as wastewaters. Both of theseresidues must meet the treatmentstandards for the K087 prior toplacement in land disposal units.

While EPA has identified incinerationin a rotary kiln as BDAT for K087nonwastewaters, other treatmenttechnologies such as fluidized bedincineration, multiple hearthincineration, rotary kiln incineration,and various fuel substitution units thatcan achieve these standards are notprecluded from use by this rule.

Total recycling has been identified asa potentially applicable technology forK087 wastes. Total recycling involvestreating the K087 waste for (1] reuse inthe coke ovens or (2) production of acommercial tar product. At this time,however, EPA has not completed itsanalysis of data submitted for purposesof defining which K087 materials can bebeneficially recycled. Industrycommenters likewise agreed that notevery K087 waste is amenable torecycling (although suggesting that mostK087 as generated is recyclable].

BDAT TREATMENT STANDARD FOR K087

(Nonwastewaters]



(mg/kg)

Acenaphthalene ............ 3.4 ()Benzene ......................... 0.071 (')Chrysene ........................ 3.4 (')Fluoranthene ................. 3.4 (')Indeno (1,2,3-cd)

pyrene ....... ....... 3.4 (')Naphthalene ..... ......... 3.4 (')Phenanthrene ................ 3.4 (')Toluene ............. ... 0.65 (')Xylenes ............. .. 0.070 (1)Lead ............................... () 0.51

'Not applicable.


[Wastewaters]


Constituent Totalcomposition TCLP (rg/I)

(mg/)

Acenaphthalene 0.028 4')Benzene .................. .014 (')Chrysene ........................ .028 ('3Fluoranthene ................. . 028 (l)




No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

BDAT TREATMENT STANDAK087--Continued

[Wastewaters]

Constitueni

Indeno (1,2,3-cd)pyrene.........

Naphthalene ..................Phenantvene ................Toluene .........................Xylenes .........................Lead .........................

Maximum fograb s

Totalcomposition

(mg/I)

.028

.028

.028

.008

.014

.037

'Not applicable.

t. K099-Untreated wastewthe production of 2,4-dichlorophenoxyacetic acid (2Today's rule promulgates finalstandards for K099 wastewatenonwastewaters. These standsbased on chemical oxidation uchlorine. This treatment systensubstantial treatment for 2,4-dichlorophenoxyacetic acid (2treatment standards for wasteidentified as K099 are listed inat the end of this section.

Other treatment technologieAgency believes are applicablchemical oxidation using otheroxidizers, wet air oxidation [aspecialized form of chemical ocarbon adsorption followed byincineration of the carbon, andbiological treatment followedincineration of the biological sThese and any other technologachieve these standards are nprecluded from use by this rul

For wastes and treatment reidentified as K099 nonwastewwastewaters, EPA is promulgatreatment standards for sevenconstituents. These are 2,4-dichlorophenoxyacetic acid anchlorinated dioxins and chlorirdibenzofurans. The 1 ppb analquantitation limit for these condescribed in the final rule for dcontaining wastes (51 FR 4064used here. This level representanalytical limit of quantitationbe routinely achieved.

EPA specifically requested con the selection of chlorine oxiBDAT for K099. Chlorine oxideselected as the treatment technthe destruction of 2,4-dichlorophenoxyacetic acid. Tindicate that this technology prsignificant reduction of this chHowever, the data appear to in

IDS FOR slight increase in the concentration ofsome of the chlorinated dioxins anddibenzofurans (all values below theroutine quantitation limit of 1 part per

r any single billion) from the untreated waste to theamoe treated residuals. At this time, EPA is

not certain that this implies that theTCLP (nrg/l) chlorine oxidation process is

responsible for this slight increase. TheAgency specifically requested comments

(,) and data that would indicate the(') existence of an alternative treatment(1) technology that could achieve the same(1) performance for the 2,4-(1) dichlorophenoxyacetic acid without an

increase in the chlorinated dioxins anddibenzofurans. Because no comments

ster from were received on alternative treatmenttechnologies, EPA assumes that the

,4-D). commenters agree with EPA'sltreatment assessment that chlorine oxidationrs and represents BDAT for K099 wastes.ards are The Agency received a late commentsing that included additional data on then shows performance of chlorine oxidation on

K099 wastes. This data, along with the,4-D). The data originally presented in the KC99the tables background document for the proposed

rule, was reexamined by the Agency.

s that the These additional data indicated that thee are proposed treatment standard for 2,4-

dichlorophenoxyacetic acid could not beachieved on a routine basis. Sufficient

xidation), data were submitted enabling theAgency to calculate a revised treatmentstandard for this constituent. Therefore,

by the Agency is promulgating the revisedludge. 2,4-dichlorophenoxyacetic acid standardgy that can as final along with the standards for theot chlorinated dioxins and dibenzofuranse. are proposed.siduesaters or BDAT TREATMENT STANDARDS FOR K099tingorganic (Nonwastewaters]

id sixnatedyticalistituentslioxin3) is alsos thethat can

ommentdation asation wasnology for

he datarovidesemical.ndicate a


Constituent Totalcomposition TCLP (mgfl)

(mg/kg)

2,4-Dictorophsnoxya.cetc acid ................... 1.0 ('3

Hexachlorodibenzo-p-dioxins ....................... .001 (I)

Hexachlorodibenzo-furans ........................ .001 (')

Pentachlorodibenzo-p-dicxins ..................... .001 ('3

Pentachloradibenzo.furans ........................ .001 ('3

Tetrachlorodibenzo-p-dioxins ....................... .001 (')

Tetrachlorodibenzo.furans ......................... .001 ('3

'Not applicable.

BOAT TREATMENT STANDARDS FOR K099

[Wastewaters]



(mg/I)

2,4-Dichlorophenoxya-cetic acid .................... 1.0 (I)

Hexachlorodibenzo-p-dioxins ........................ .001 (')

Hexachlorodibenzo-furans ......................... .001 (')

Pentachlerodibenzo-p.dioxins ..................... .001 (')

Pentachlorodibenzo.furans .......................... 001 (')

Tetrachlorodibenzo-p-dioxins ........................ .001 (')

Tetrachlorodibenzo-furans ......................... .001 (')

INot applicable.

u. KiOl-Distillation tar residuesfrom the distillation of aniline-basedcompounds in the production ofveterinary pharmaceuticals fromarsenic or organo-arsenic compounds.K102-Residue from the use of activatedcarbon for decolorization in theproduction of veterinarypharmaceuticals from arsenic ororgano-arsenic compounds. In today'srule, EPA is promulgating final treatmentstandards for K101 and K102wastewaters and nonwastewaters.These include ortho-nitroaniline in K101wastes and ortho-nitrophenol in K102wastes as well as arsenic, cadmium,total chromium, lead, mercury andnickel. The final treatment standards forthese wastes are listed in the tables atthe end of this section.

The BDAT treatment standards forK101 and K102 nonwastewaters wereproposed based on information suppliedto the Agency that indicated thatuntreated K101 and K102 wastes contain590 ppm to 0.83% of arsenic. In a latecomment to the proposed rule, onecommenter provided information thatthey generate K101 and K102nonwastewaters that containsignificantly higher concentrations ofarsenic (up to 26.9% total arsenic). Thecommenter also stated that incinerationof their wastes poses a significantincrease in risk due to these highconcentrations of arsenic. The Agencyagrees with the commenter that these.K101 and K102 wastes contain asignificantly higher concentration ofarsenic compared to those wastesstudied by the Agency (i.e., the wastesthat were used to develop the treatmentstandards). The Agency also agrees thatdirect incineration of organic wastescontaining very high levels of arsenic,





such as the K101 and K102 wastesgenerated by the commenter, poses asignificant increase in risk to humanhealth and the environment. As a result,the Agency is therefore, unable topromulgate the proposed treatmentstandards as final for K101 and K102wastes with high arsenic concentrations.

For the purpose of today's rule, theAgency is therefore establishing a HighArsenic Subcategory and a Low ArsenicSubcategory for K101 and K102nonwastewaters. The High ArsenicSubcategory is defined as those K101and K102 wastes that contain greaterthan or equal to 1% total arsenic. TheLow Arsenic Subcategory is defined asthose K101 and K102 wastes thatcontains less than 1% total arsenic. Thislevel was established based primarilyon the concentration of arsenic (0.83%)measured in the waste tested by EPA. Acomplete explanation of how this levelwas determined can be found in thebackground document for this waste.EPA intends to propose and promulgatenumerical treatment standards for K101and K102 wastes in the High ArsenicSubcategory prior to May 8, 1990. Sinceno standard is promulgated in today'srule for K101 and K102 nonwastewatersin this subcategory, they are restrictedfrom land disposal according to the "softhammer" provisions.

Potential technologies applicable toorganic wastes containing highconcentrations of arsenic, such as K101and K102 wastes in the High ArsenicSubcategory, are chemical oxidation orwet air oxidation. These technologiesdestroy interfering organics and convertthe organic arsenicals to inorganic formsof arsenic. The inorganic forms ofarsenic may then be amenable for directrecovery or may be immobilized byspecialized stabilization techniques.

The treatment standards for theorganic constituents in K101 and K102nonwastewaters in the Low ArsenicSubcategory are based on theperformance achieved by incineration ina rotary kiln. The treatment standardsfor the metals are transferred fromwastewater metals treatment data forsimilar wastes that have beenpreviously developed by the Agency.The wastewater treatment systemincludes a chemical precipitation step toprecipitate dissolved metals as solidsfollowed by a filtration step to removethese solids. The residues of thiswastewater treatment system includethe treated wastewater and the solidsthat are classified, for the purposes ofBDAT, as nonwastewaters. Furtherapplication of a stabilization process tothese solids may be necessary in orderto conform with the BDAT treatment

standards for nonwastewaters. Furtherdetails regarding BDAT developmentand data transfer are provided in theBackground Document for this wastecode.

For the purposes of BDAT, any solidash residues from the incineration ofK101 and K102 nonwastewaters in theLow Arsenic Subcategory are alsoclassified as nonwastewaters. Scrubberwaters from air pollution control devicesare classified as wastewaters. Both ofthese residues must meet the treatmentstandards prior to placement in landdisposal units.

While EPA has identified incinerationin a rotary kiln as BDAT for K101 andK102 nonwastewaters in the LowArsenic Subcategory, other treatmenttechnologies such as fluidized bedincineration, multiple hearthincineration, and rotary kiln incinerationthat can achieve these standards are notprecluded from use by this rule.

For wastes identified as K101 andK102 nonwastewaters in the LowArsenic Subcategory, EPA is regulatingtwo specific organic constituents thatare not included on the BDAT List buthave been selected as indicators ofeffective treatment of these wastes. Astandard for ortho-nitroaniline ispromulgated for K101 and a standard forortho-nitrophenol is promulgated forK102.

Several commenters stated that EPAshould not regulate copper or zincbecause it is not a constituentspecifically listed on Appendix VIII of40 CFR Part 261. The Agency does nottotally agree, but is not adopting astandard for reasons stated in previoussections of this preamble for F006wastes.

At the time of this rule, the Agencyhad not completed its evaluation ofwaste characterization and treatmentinformation for antimony, arsenic andbarium in K101 and K102nonwastewaters from the Low ArsenicSubcategory or antimony in any K101and K102 wastewaters. The proposedrule contained the notation "reserved"for these constituents, noting that EPAwould be setting standards when theevaluation was completed. Severalcommenters suggested that a treatmentstandard of "reserved" was confusing tothe regulated community andunnecessary. Since individual standardswould still have to be proposed andpromulgated through the normalrulemaking procedures, no benefit isachieved by the "reserved" notation forthese constituents. Therefore, theAgency has dropped it from the finalrule for the individual constituents notedabove.


[Nonwastewaters]

[Low Arsenic Subcategory-less than 1% totalarsenic]



(mg/kg)

Ortho-nitroaniline ......... 14 (1)Cadmium .............. (I) 0.066Chromium (total) .() 5.2Lead ............................... (1) .51Nickel ............................. (') .32

'Not applicable.


(Wastewaters]



(mg/I)

Ortho-nitroaniline .......... 0.27 ()Arsenic ........................... 2.0 (')Cadmium ............. . 24 ()Lead .... .............. . 11Mercury ........................... 027 (')

'Not applicable.

BDAT TREATMENT STANDARDS FOR Klb2

[Nonwastewaters]

(Low Arsenic Subcategory-less than 1% totalarsenic]



(mg/kg)

Ortho-nitrophenol .......... 13 (')Cadmium ........................ (1) 0.066Chromium (total) ........... (1) 5.2Lead ............................... (1) .51Nickel ............................. (1) .32

'Not applicable.

BDAT TREATMENT STANDARDS FOR K102[Wastewaters])


grab sample


(mg/I)

Ortho-nitrophenol .......... 0.028 (')Arsenic ........................... 2.0 (')Cadmium ........................ .24 (')Lead ............................... 11 (I)Mercury .......................... .027 (')

'Not applicable.

v. K103-Process residues fromaniline extraction from the productionof aniline. K104-Combined wastewater




31172 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 I Rules and Regulations

streams generated from nitrobenzene/aniline production. In today's rule, EPAis promulgating final treatmentstandards for K103 and K104wastewaters and nonwastewaters.These include, total concentrationstandards for aniline, benzene, 2,4dinitrophenol, nitrobenzene and phenolfor both K103 and K104 wastes. Finaltreatment standards for total cyanidesare promulgated only for K104wastewaters and nonwastewaters. Thefinal treatment standards for thesewastes are listed in the tables at the endof this section.

The treatment standards for theorganic constituents in K103 and K104wastewaters and nonwastewaters arebased on the performance achieved bysolvent extraction followed by steamstripping and activated carbonadsorption with incineration of thesolvent stream from extraction. Othertreatment technologies such as steamstripping followed by activated carbonadsorption, and steam strippingfollowed by biological treatment are notprecluded from use by this rule.

The solvent-containing stream fromsolvent extraction potentially can berecycled to recover nitrobenzene andaniline, or incinerated. The steamstripper overheads are condensed anddecanted with the organic constituentsrecycled back to the process. The spentcarbon from the activated carbonadsorption column is sent off-site forthermal regeneration. While theincineration component of thistechnology is not demonstrated for K103and K104, available information showsthat it is demonstrated on wastes similarto the contaminated solvent stream fromextraction.

Because the solvent-contaminatedstream potentially contains a significantamount of an explosive compound(picric acid], EPA expressed concern inthe proposed rule that it may not bepossible to safely use incineration. Onecommenter stated their belief thatincineration could present significantsafety hazards due to the presence of asignificant amount of this explosivecompound. The commenter stated thatalthough it is possible that picric acid insolution may not present an explosionhazard, crystals of picric acid may beformed during upsets and malfunctionsin the treatment system. The commenterpointed out that the crystals mayaccumulate over time even though theconditions for formation may not alwaysbe present and unless wetted with waterwill be shock sensitive and couldexplode with considerable force. Thus,the commenter believes thatincineration is not a viable technology

for the K104 wastestream because ofthis potential for explosion.

EPA agrees that there is a potentialfor explosion if the combustion of thesewastes is not properly controlled.However, incineration of these types ofwastes is currently practiced. As such,incineration is fully demonstrated. EPAbelieves the issue of explosivity wouldbe present for any technology used forthis waste. Therefore, it is unreasonableto expect that EPA would exempt this oranother waste from any treatment basedon a mismanagement scenario. Instead,EPA expects that treatment facilitieswill take care to insure and providedesign and operating conditionsnecessary in treating this waste to theconcentrations promulgated in today'srule.

One commenter suggested that EPAincorrectly based the standards for K104on a product processing step rather thana waste treatment technology. EPAdefines BDAT for both K103 and K104wastestreams as solvent extractionfollowed by steam-stripping and carbonadsorption. Objections to EPA's testingprocedures were raised because thesampling occurred at a time when theplant was operating the process atconditions different from those nowemployed. The commenter contends thatthe solvent extraction procedure fromwhich EPA obtained its BDAT data wasactually a manufacturing process stepthat has been abandoned because oftechnical and economic infeasibility.The commenter objected to EPA'sdesignation of the solvent extractionprocess as a waste treatment technologybecause at the point where the solventextraction took place, neither the extractnor the residual streams were wastes.The commenter believes the solventextraction procedure was anexperimental processing step thatoccurred before the stream wasidentified for disposal. One commenterpointed out that EPA's determination ofBDAT was improper based on theAgency's own statements regardingwhat constitutes "demonstrated"treatment technologies. The commenternoted that the Agency's final ruleimplementing land disposal restrictionsfor certain dioxin- and solvent-containing wastes (51 Federal Register40571 et. seq.), EPA responded tocommenters' concerns over use ofexperimental data, such as pilot andbench scale data to establish BDAT. Thepreamble to the regulation states thatthe Agency agrees with the commenters'position that its determinations shouldnot be based on emerging andinnovative technologies.

EPA believes that solvent extractionis a fully demonstrated technology. Infact, solvent extraction of organicconstituents is used for treatment ofhazardous wastes (see EPA'spromulgated treatment standard forK048-K052 elsewhere in this notice) andwidely used in the production of organicchemicals. Further, EPA frequentlybases BDAT standards for individualwastes on the performance achieved bybench or pilot scale operation ofdemonstrated technologies when no fullscale data are available. The commenterhas provided no data to show that theperformance achieved by a full scalesolvent extraction system will notachieve the performance measured byEPA. However, EPA has established avariance procedure, if such data becomeavailable. In the interim, EPA believesthat the proposed standards areachievable.

Use of solvent extraction does notrequire recycle of the extract back intothe process. Instead, the extract can beincinerated to achieve the promulgatedfinal standards. Recovery or reuse of theextract is not precluded byestablishment of these standards.Selection of solvent extraction as part ofthe BDAT treatment process is basedsolely on its status as a demonstratedcontrol technology that provideseffective removal of constituents fromthe waste stream for subsequentdestruction by incineration.

One commenter disagreed with thestatistical methodology used indeveloping the treatment standards forK103 and K104 (the same methodologythat is used for all of the BDATtreatment standards). Specifically, thecommenter states that following goodstatistical practice, EPA should use a"multiplier" in the 99th percentilecalculation that reflects the number oftreatment data points used in thegeneration of the treatment standards.The 99th percentile used by EPA is asfollows: C99 = exp (AVG + 2.33 Stand.Dev.). In place of the 2.33 multiplier, thecommenter suggests that EPA shoulduse a value that corresponds to thespecific number of data points used. ForK103 and K104 wastewaters, this valuewould be 7.042.

EPA does not agree with thecommenter that the 2.33 value should bechanged to a multiplier that correspondsto the specific number of data points.EPA's rationale Is summarized asfollows: The 2.33 multiplier isextensively used by EPA in itsvariability factor calculations, includingthe Agency's effluent guidelineslimitations and the recently promulgatedsolvent rule. Under classical statistical

No. 159 / Wednesday, August 17, 1968 / Rules and Regulations31172 Federal Reester / Vol. 53,



Fadeal egiter Vo. 5, N. 15 / ednsda, Auust17,1988/ RlesandReguatins 117

theory, the 2.33 value can be used in the9th percentile calculation for anynumber of data points, provided themean and standard deviation are known(i.e., that additional data points will notincrease these values). It is EPA'sposition (supported, in general, byavailable data) that as the number ofdata points increase, the mean andstandard deviation will most frequentlydecrease. Therefore, EPA believes thatthe use of the 2.33 multiplier isappropriate. As evidence to thisdetermination, EPA points to thevariability factors currently developedfor the constituents in K103 and K104.These factors are in the range ofapproximately 1.6 to 15.4, whichsubstantially exceeds the variabilityseen in treatment of wastewaters with amuch larger number of data points.

Additionally, an engineering analysisof well-designed and well-operatedtreatment systems would, in general,predict that both the average level ofperformance and variability woulddecrease with larger data bases. Whilewell designed and well operatedtreatment systems do experiencefluctuations in performance, thesefluctuations are normally cyclicalreflecting the fact that an inherent partof most treatment system controldevices is that they continuouslyundercompensate and overcompensatefor a desired control parameter. As thedata base for such cyclical changesincreases, the standard deviation woulddecrease because the range of valueswould be essentially the same, while thenumber of data points would be greater.As a final point in response to thiscomment, the commenter alsorecognizes that the multiplier theysuggest may be inappropriate because ityields results which "might simply betoo high." lAdditional discussion can befound in the Agency's Response toComments document.]


[Nonwastewaters]



(mg/kg)

Aniline ........................... 5.6 ()Benzene.. 6.0 ('2,4-Dinitrophenol 5.6 (')Nitrobenzene ................. 5.6 (')Phenol ............................ 5.6 (')

Not applicable.


[Wastewaters]


Constituent Total

composition TCLP (mg/jI(mg/I)

Aniline ........................... 4.5 (I)Benzene ............. . .. 152,4-Dinitrophenol .......... . 61 ()Nitrobenzene ................ . 073 (')Phenol ............................ 1.4 (')

Not applicable.



grab sample

Constituent Total


Aniline ........................... 5.6 (1)Benzene ........................ 6.02,4-Dinitropenol ........... 5.6 ()Nitrobenzene ................ 5.6 (')Phenol.. 5.6Cyanides (Total) .......... 1.8 (')

'Not applicable.

BDAT TREATMENT STANDARDS'FOR K104

[Nonwastewaters]


Constituent Total

composition TCLP (mg/)(mg/I)

A lin e ................. . 4 .5 ( ')Benzene ....... 0.15 (')2,4-D itrophenol ........ 0.61 )Nitrobenzene ................ 0.073 (')Phenol ... ...... ....... .. _. 1.4(1

Cyanides (Total) ........ 2.7

'Not applicable.

w. K106-Wastewater treatmentsludges from the mercury cell process inchlorine production. On May 17, 1988,EPA proposed BDAT treatmentstandards for K106 nonwastewatersbased on the performance of a thermalrecovery [retorting) unit. However, theretorting process has been demonstratedchiefly on ores consisting primarily ofmercury sulfides. In the proposed rule,the Agency stated that these ores arebelieved to have chemical and physicalcharacteristics similar to K106nonwastewaters. EPA receivedextensive comments from industryopposing the applicability,demonstrability, and economics ofretorting K106 nonwastewaters. At thesame time, EPA has examined the datathat it has on the treatment of K106 andsimilar wastes and determined that

there was insufficient data to supportthe promulgation of the proposedtreatment standards for K106.

The Agency has data points from aliterature source on the treatment ofK106 nonwastewaters combined withK071 nonwastewaters using dewateringfollowed by retorting. Since the sourcereports that K106 comprised only 0.5% ofthe feed to the retort furnace, theAgency believes the waste mixture doesnot sufficiently represent the majority ofK106 wastes. The Agency has additionaldata from the treatment of a differentK106 nonwastewater using retorting.However, this K106 was not generatedby the-conventional method of sulfideprecipitation, but consisted of elementalmercury that was concentrated in theresidual from membrane filtration ofwastewater from the mercury cellprocess. EPA did not consider thesedata to be representative of K106nonwastewaters because nineteen of thetwenty facilities generating K106currently generate it as a mercurysulfide sludge or residual. The Agencyalso has data from EPA testing on.treatment of K106 nonwastewaters bystabilization. Data collected duringthese tests show that while thesetechnologies were properly operated,the data indicated that no significantreduction in leachability was achievedand in some cases, the leachability wasincreased.

Based on review of the sufficiency ofthe available data and on the commentsreceived, the Agency has decided not topromulgate final BDAT treatmentstandards for K106 nonwastewaters intoday's rule. Until sufficient treatmentperformance data can be obtained thatverify that these technologies canprovide significant treatment for K106wastes, the Agency does not believethat it can promulgate treatmentstandards based on either of thesetechnologies. It is important to point outthat the Agency is not precluding the useof retorting or solidification for thesewastes and that these technologies mayprove to be BDAT for these wastes. EPAdoes intend to propose and promulgatenumerical treatment standards for thesewastes prior to May 8, 1990. Since nostandard is promulgated in today's rule,K106 wastes are restricted from landdisposal according to the "soft hammer"provisions described in other sections ofthis preamble. [Note.-As discussed indetail in section III.C.3., EPA isamending § 268.12 to includewastewater residues derived from thetreatment of "soft hammer" wastes bycertain processes, as well as leachatederived from the management of "softhammer" wastes and "soft hammer"

No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 31173Federal Register / Vol. 53,




waste contaminated groundwater.Thereby, moving the aforementionedtypes of wastewaters into the group ofwastes identified as the Third Third.Thus, these types of K106 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33 (f). This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.1

The Agency has information on othertechnologies that have been identifiedas potentially applicable to K106 wastes.In particular, a secondary mercuryrecovery facility has been recentlyidentified as treating K106 wastes by anunidentified process. Another facilitythat uses hydrazine to treat theirwastewaters and generates K106 as amercury hydroxide rather than amercuric sulfide, subsequently retortsthe K106 waste, to recover mercury priorto land disposal of a residual.

It is possible that because the sulfideprecipitate is one of the least solubleforms of mercury salts, that no furthertreatment is required of K106nonwastewaters. Since K106 already isa treatment residual from treating K071and other mercury contaminatedwastewaters, this result would bepermissible under RCRA.

Other alternatives involve changingthe process of generation of thewastewater treatment residuals from theuse of sulfide to the use of hydrazinewith lime precipitation to facilitaterecovery of the mercury from K106 as ahydroxide residue. However, this wouldrequire authority under RCRA toregulate industrial process changes tofacilitate changes in the composition oflisted hazardous wastes. This authoritydoes not currently exist.

x. K004-Wastewater treatmentsludge from the production of zincyellow pigments. KOO--Oven residuefrom the production of chrome oxidegreen pigments. K021-Aqueous spentantimony catalyst waste fromfluoromethanes production. K025-Distillation bottoms from the productionof nitrobenzene by the nitration ofbenzene. K036-Still bottoms fromtoluene reclamation distillation in theproduction of Disulfoton K060-Ammonia still lime sludge from cokingoperations. KiOO-Waste leachingsolution from acid leaching of emissioncontrol dust/sludge from secondary leadsmelting. The BDAT treatment standardof "no land disposal" for K004, K008,K021, K025, K036, K060 and K100wastewaters and nonwastewaters wasproposed based on the premise of "nogeneration". In the proposed rule, EPAspecifically requested comment on

current and potential sources ofgeneration of these wastes as eitherwastewaters or nonwastewaters. Whilethe Agency has received no specificcomments that indicated any currentgeneration of nonwastewater forms ofthese wastes as specifically listed,several commenters stated that this rulewould preclude them from generation ofthese wastes.

In particular, commenters indicatedthat K060 is no longer generatedbecause sodium hydroxide is used as areagent rather than ammonia. Thus,K060 is not generated as listed. Theystated that they may be forced to switchto ammonia due to an anticipatedshortage in the supply of sodiumhydroxide, and would thus begin togenerate K060 as listed. A commenteralso indicated that his facility wasgenerating KO60, as listed, but claimsthat he is reusing the K060 as a chemicalsubstitute. One commenter claimed thatalthough his facility is currently notgenerating K060 due to a cessation inproduction, but they may decide toresume production in the future.

The Agency cannot anticipate shifts ingeneration due to fluctuating reagentmarket conditions and therefore, has todisagree with these commenters. TheAgency points out that this rule does notpreclude generation of these wastes, butrather restricts the placement of thesewastes in land disposal units. It is alsoimportant to point out that this is one ofpremises behind the EPA'sestablishment of petition processes forobtaining a variance from the treatmentstandard.

In the proposed rule, EPA recognizedthe possibility that wastewater forms ofthese wastes could be generated at aCERCLA site, during a corrective actionat a RCRA facility, or as a leachate froma landfill. The Agency, therefore, alsoproposed a "treatment standard" forthese wastewaters of "no landdisposal". By establishing this standard,a facility that generated and needed totreat a wastewater, could submit apetition to the Agency for a variancefrom this treatment standard. TheAgency believed that few, if any,petitions for a variance would besubmitted because facilities generallydischarge these wastewaters to a POTWor surface water under a NPDES permit.However, comments from severalfacilities that have land disposal unitsthat contain previously disposed K004,K008, KO21, K025, K036, K060, and K100nonwastewaters, stated that if leachatefrom these wastes are identified withtheir respective waste codes, then theleachate would be consideredwastewater forms and the "no landdisposal" standard based on "no

generation" would not be justified. Theyalso stated that elimination of landdisposal of these wastewaters is notfeasible and that numerical treatmentstandards should be promulgated.

The Agency agrees that thisgeneration of wastewater could besignificant, in that these wastes havebeen land disposed and do exist inmany land disposal units. Therefore, theAgency has decided to promulgate afinal BDAT treatment standard of "noland disposal" for only thenonwastewater forms of K004, K008,K021, K025, K036, K060, and K100nonwastewaters. EPA does intend topropose and promulgate numericaltreatment standards for the wastewaterforms of these wastes prior to May 8,1990. Since no standard is promulgatedin today's rule for the wastewater formsof K004, K008, K021, K036, and K060, thissubgroup of wastes is restricted fromland disposal according to the "softhammer" provisions. Because K025 andK100 are wastes from the Second Thirdand Third Third, respectively, theseprovisions are not applicable to thewastewater forms of K025 until June 8,1989 and the wastewater forms of K100until May 8, 1990 (unless individualnumerical treatment standards areproposed and promulgated prior to thosedates). [Note: As discussed in detail insection III.C.3., EPA is amending§ 268.12 to include wastewater residuesderived from the treatment of "softhammer" wastes by certain processes,as well as leachate derived from themanagement of "soft hammer" wastesand "soft hammer" waste contaminatedgroundwater; thereby moving theaforementioned types of wastewatersinto the group of wastes identified as theThird Third. Thus, these types of K004,K008, K021, K036, and K060 wastewatersare not subject to the "soft hammer"prohibitions in § 268.33(f). This actionwill allow these wastewater residues tobe disposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.]

BDAT TREATMENT STANDARDS FORK004, K008, K021, K025, K036, K060,AND K100

[Nonwastewaters]

NO LAND DISPOSAL BASED ON NOGENERATION

8. Appropriate Technologies for CertainFirst Third Wastes for Which EPA HasNot Promulgated Treatment Standards



No. 159 f Wednesday, August 17, 1988 / Rules and Regulations 31175

For the First Third Wastes identifiedin the tables at the end of this section,today's rule promulgates no specificBDAT treatment standards. RCRAsection 3004(g)(5) (42 U.S.C. 6924(g)(6))provides that if EPA fails to settreatment standards for any hazardouswaste included in the schedulepromulgated on May 28, 1986 (51 FR19300) by the statutory deadline, suchwaste may be land disposed in a landfillor surface impoundment only if thefacility meets certain statutoryrequirements and only until May 8, 1990.These requirements have been termedthe "soft hammer" provisions.

EPA has identified several treatmenttechnologies that are generallyconsidered appropriate for thenonwastewater forms of the First ThirdWastes. These technologies include:metal recovery, leaching/oxidation,metals stabilization, ash stabilization,chemical oxidation, cyanide destruction,biodegradation, incineration, PCBincineration, and open detonation/openburning. Treatment technologiesgenerally considered appropriate for thewastewater forms of the First ThirdWastes include: aqueous metalrecovery, chromium reduction, metalsprecipitation, steam stripping, carbonadsorption, oxidationfreduction,chemical oxidation, cyanide destruction,biodegradation, incineration, and PCBincineration. As discussed in detail insection III.C.3., EPA is amending§ 268.12 to include wastewater residuesderived from the treatment of "softhammer" wastes by certain processes,as well as leachate derived from themanagement of "soft hammer" wastes

and "soft hammer" waste contaminatedgroundwater. This action will allowthese wastewater residues to bedisposed in nonminimum technologyunits and such residues will not besubject to the certification requirementsof § 268.8.

The technologies are listed as generalcategories of technologies that EPAbelieves have a reasonable probabilityof application to the waste codes listed.These categories do not specify anyparticular type of technology (e.g.,incineration can represent liquidincinerators, rotary kiln, fluidized bedincinerators, etc.). The actual choice of aparticular technology or even train oftechnologies depends on the physicaland chemical characteristics of thespecific waste or waste code. Specificselection of one technology depends onits functional design (e.g., if a particularnonwastewater is an organic liquid, thena liquid incinerator may be chosen overone designed to handle only solids).

EPA notes that many of these wastes,when existing as untreated wastes, arealready prohibited from land disposalbecause they are California List wastes.The liquid cyanide wastes, for example.could exceed the statutory prohibitionlevels for cyanide. Several of the organichazardous wastes undoubtedly exceedthe statutory levels for wastescontaining halogenated organics (HOCwastes) and are thus subject to the HOCtreatment standard (after the effectivedate). For further discussion of therelationship of the California listprohibitions to "soft hammer" wastesrefer to section III.E.1.

The following tables are presented as

an aid to generators seeking appropriatetechnologies to treat "soft hammer" F-and K-listed wastes. [For a discussion ofthe treatment requirements for "softhammer" wastes refer to section III.C.]Several technologies are listed for eachwaste code, in descending order ofpreference. EPA notes that certaintechnologies are only appropriate forcertain constituent types (i.e., cyanidedestruction is appropriate for cyanide,not to metals or organics) and that morethan one treatment technology may berequired (if practically available) totreat the different constituents ofconcern in the waste. Thus, an F007nonwastewater could require bothcyanide destruction and metals recoveryor stabilization prior to land disposal ina landfill or surface impoundment. Also,while one treatment process maygenerally satisfy the treatmentrequirements for "soft hammer" waste,the Agency recognizes that treatmenttrains [i.e., a combination of differenttreatment processes) may beappropriate for certain "soft hammer"wastes. For example, K022 wastewatersmay require treatment by several of thetechnologies listed.

The Agency emphasizes that thesetables are not to be considered as stricttreatment guidelines. In general.however, EPA will use these tables inevaluating the demonstrations andcertifications [see section III.C.3.)received for these wastes and isproviding this information to aid thegenerator in determining the bestpractically available technology (if any)for treating his waste in compliancewith § 268.&

APPROPRIATE TREATMENT TECHNOLOGIES FOR FIRST THIRD NONWASTEWATERS

RCRA waste code Potential California list applicability Primary applicable treatmenttechnologies

F007 ............................................................................................... ............................

F008 ................................................................................................................................

009 ........................................................................................................................ ..F019 ....................................................................................................................................K011 ..................................................................................................................................

K017 .....................................................................................................................................K073 ....................................................................................................................................

K031 .................. .............................................................. ... ...

K084 ....................................................................................................................................K101 and K lO2fNigh arsenic ...........................................................................................K0461exposive ...............................................................................................................

r, fn 44

Metals .............................

Halogenated organics .................................................

Arsenic ..................................................................-......

Lead..................... .................. .....

K0591C 3SO4 ....................................................................................................................... Lead ..............................................................................

K085 ............................................................................................................................. an.

Cyanide destruction.

Metals recovery.Metals Stabilization.Cyanide destruction.Incineration.Wet air oxidation.Ash stabilization.Incineration.Biodegradation.Ash stabilization.Metals recovery.Leaching/oxidation.Metals stabilization.Open detonate/bum.Oxidation of explosive.Incineration.Metals stabilization.Leaching/oxidation.Metals stabilization.PCB incineration.

K 4............. .. .............. ................................... ................................. .. ...... ..................... .......................................... ........... ..... ...... ..... .............


Halogenated organics and PCB's ........... * ...................




APPROPRIATE TREATMENT TECHNOLOGIES FOR FIRST THIRD NONWASTEWATERs-Continued

ACRA waste code Potential California list applicability Primary applicable treatmenttechnologies

Biodegradaton.Ash stabilization.

K035 ............................................................................................................................... O rganics and/or m etals ............................................. Incineration.K083......................................................................... .............. Wet air oxidation.K086 solv. sludges caust. w ater ................................................................................................................................................................................ Biodegradation.

Ash stabilization.K 106 ..................................................................................................................................... M ercury ........................................................................ M etals recovery.

Metals stabilization.

APPROPRIATE TREATMENT TECHNOLOGIES FOR FIRST THIRD WASTEWATERS

Primary applicable treatmentRCRA waste code Potential California list applicability technooges

F006 .................................................................................................................................... Cyanides ....................................................................... Cyanide destruction.F007 ....................................................................................................................................F008 ..................................................................................................................................... M etals ............................................................................ Aqueous me tals recovery.F009 ...................................................................................................................................... ......................................................................................... Chrom ium reduction.F019 .............................................................................................................................................................................................................................. M etals precipitation.K004 .................................................................................................................................... Chrom ium ...................................................................... Chrom ium reduction.K008 ...................................................................................................................................... ......................................................................................... M etals prec ipitation.K061/all ...............................................................................................................................K011 ..................................................................................................................................... Cyanides ....................................................................... Cyanide destruction.K0 13 ............................................................................................................................................................................................................................... Carbon adsorption.K014 .....................................................................................................................................K017 ..................................................................................................................................... Halogenated organics ................................................. Steam stripping.K021 ..................................................................................................................................... .......................................................................................... Carbon adsorption.K073 ..................................................................................................................................... ,......................................................................................... Chem ical oxidation..

Biodegradation.K022 ..................................................................................................................................... Unlikely to be applicable ............................................. Steam stripping.K035 .............................................................................................................................................................................................................................. Carbon adsorption.K036 ............................................................................................................................................................................................................................... Chem ica l oxidation.K083 .............................................................................................................................................................................................................................. Biodegradation.K060 .............................................................................................................................................................................................................................. M etals prec ipitation.K031 ..................................................................................................................................... Arsenic, Lead or M ercury ........................................... O xidation/red uctio n.K 046/nonexplosive ....................................................................................................................................................................................................... M etals precipitation.K069/all ...................................................................................................................K084 .....................................................................................................................................K106 ....................................................................................................................................K046/explosive .................................................................................................................. Lead .............................................................................. O xidation of explosive.

Metals precipitation.K085 ..................................................................................................................................... Halogenated O rganics and PC B's ............................. PC B incineration.

Biodegradation.Carbon adsorption.

K086 solv. sludges caust. water ....................................................................................... Halogenated O rganics and/or ................................... Biodegradation.Carbon adsorption

M etals ........................................................................ Chrom ium reduction.Metals precipitation.

9. Burning in Industrial Boilers andIndustrial Furnaces as BDAT for CertainCalifornia List HOCs

In the May 17 proposal, EPA proposedto amend the § 268.42(a)(2) treatmentstandard (i.e., incineration) applicable tocertain California list HOCs to includeburning in industrial boilers andfurnaces (53 FR 17604). This approachwas based on an earlier May 6, 1987proposed rule on boilers and industrialfurnaces burning hazardous waste (52FR 17021) and was reproposed in theMay 17 proposal because the change inthe HOC treatment standard willprecede the boiler and industrial furnacerule (which is scheduled forpromulgation in 1989) which willestablish final permitting and interim

status standards for emissions from.these devices. The Agency is preparedto accept this discrepancy in timing ofthe boilers and furnaces rule becausethese devices are likely to be operatedefficiently so as to achieve substantialdestruction of the HOCs in the waste.This is because industrial boilers andfurnaces have a commercial purposewhich requires relatively efficientburning (see § 260.10 definitions of"boiler" and "industrial furnace"). Inaddition, non-industrial boilers, some ofwhich might be expected to destroyHOCs less efficiently, are essentiallyprohibited from burning hazardouswaste at all (see § 266.31(b)).

While many commenters agreed withthe Agency's proposal, EPA received

several comments opposed to thisapproach, stating that the amendment tothe HOC treatment standard should bedelayed until the industrial boilers andfurnaces emissions standards areeffective. However, the Agencymaintains that the reasoning presentedin the May 17 proposal is valid and ispromulgating the proposed amendmentto § 268.42(a)(2). Today's rule will allowindustrial boilers and furnaces burningin accordance with applicableregulatory standards to burn Californialist HOCs. When Part 266 standardsbecome effective for these devices, thedevices thus must meet these standards.Until then, these devices must meetother applicable Federal, State and localstandards.




B. Testing and Recordkeeping

1. Waste Analysis

With the exception of the "no landdisposal" standard (as discussed insection III. A. 6.), the treatmentstandards established in today's actionare based on either (1) the concentrationlevels of the hazardous constituents inthe waste or treatment residual, (2)concentration levels in an extractdeveloped by use of the ToxicityCharacteristic Leaching Procedure(TCLP), or (3) concentration levels usingboth total constituent concentrationsand TCLP analyses. Expressingtreatment standards as constituentconcentration levels reflects theperformance achieved by the technology(or combination of technologies)identified as the Best DemonstratedAvailable Technology (BDAT).

In the April 8, 1988 and May 17, 1988proposed rulemakings, the Agencydiscussed the rationale for determiningthe analytical tests that EPA believesprovide the most accurate measure ofthe performance of the technologiesidentified as BDAT. Generally, wastesfor which destruction and/or removaltechnologies are BDAT (specifically,technologies that act to destroy organicconstituents and recovery processes thatreduce the metal concentration in awaste) would require a total constituentconcentration analysis. Conversely,wastes for which stabilization orfixation technologies (i.e., technologiesthat decrease waste constituentmobility) are identified as BDAT, wouldrequire a TCLP extract analysis. EPAalso used the TCLP as a measure ofperformance of metal recoverytechnologies on the basis that theleachability of metals remaining in theresidual should also be analyzed as ameasure of performance. In cases wherea combination of both destruction orremoval technologies and stabilizationor fixation technologies are identified asBDAT, both analyses were employed tomonitor compliance with the treatmentstandards. EPA solicited comment onthis approach.

Many of the commenters generallyargued that the proposed waste analysisrequirements were inappropriate for useor too restrictive. Several commentersargued that the use of total constituentanalysis is unnecessarily stringent, isbeyond levels needed to protect humanhealth and the environment, and does.not provide generators with flexibility indetermining how best to meet thetreatment standards. Some commentersasserted that where treatment standardsare based on total constituent analysis,the development of innovativetechnologies and the application of

existing technologies intended to reducemobility will be discouraged. Othercommenters expressed concern with theadditional cost of the waste analysisrequirements, particularly in caseswhere both testing methods must beused. Concerns with respect to theapplicability of the analytical tests tocomplex mixtures of wastes were alsoexpressed. Some commenters suggestedan approach whereby the treatmentstandard would be developed based onboth total constituent analysis and TCLPextract analysis, and would provide thegenerators with the flexibility ofchoosing the most appropriate analyticalmethodology.

Critical to the scheme for restrictingland disposal of First Third wastes is thedetermination of whether certainconstituent concentrations in wastes ortreatment residues exceed theapplicable treatment standards. Sincetoday's treatment standards are basedupon the performance capabilities ofBDAT, the Agency continues to believethat the testing requirements shouldfocus on the objective of the technologyand provide the most accurate measureof the performance of that technology.Because the principle behind destructionand recovery technologies is to destroyor reduce the constituent concentrationin a waste, the logical way to measurethe performance of these technologies isto analyze total concentration of wasteconstituents. As noted in the April 8,1988 proposal with respect to organicconstituents, Congress expected thattreatment would destroy organicconstituents in hazardous wastes [Vol.130 Cong. Rec. S9179 (daily ed. July 25,1984)]. Where stabilization or fixationtechnologies are identified as BDAT, theTCLP is a better measure ofperformance since it is designed tomeasure the mobility of hazardousconstituents from a waste matrix. TheAgency believes this rationale to be themost defensible and thus is imposing theproposed waste testing/analysisapproach as part of the land disposalrestriction rules being finalized today.

This approach does not allow thechoice of analytical methodologies, assuggested by some commenters, sincethe design of each analytical test (totalconstituent analysis or extract analysis)is most appropriate for monitoring theperformance of certain technologies, butis not as appropriate for monitoringothers. Commenters indicated that thisapproach may hinder the application ofstabilization or fixation technologies.However, it will only do so where (a)current technologies intended to reducemobility are unable to reach the level ofperformance provided by BDAT or (b)

where such technologies are notapplicable or appropriate on a waste-specific basis. Since the treatmentstandards are based upon the "best"available treatment technologies, theAgency believes that the constituentconcentration capable of being reachedby these treatments must be measuredby analytical methods which reflect thelevels for which the "best" treatmentswere designed. With respect to analysisof complex mixtures of wastes, theAgency recognizes that such wastespotentially may increase the totalnumber of constituents withcorresponding treatment standards.However, waste analysis requirementsare limited to two analytical tests (totalconstituent analysis or the TCLP, evenif all existing restriction rules areapplicable to the waste.

2. Notification Requirements

The Agency, in today's rule, isbroadening the applicability of the§ 268.7 notification provisions to applyto the First Third wastes, whether or nottreatment standards have beenestablished. For First Third wastes forwhich treatment standards and effectivedates have been established, thenotification requirements are the sameas for other restricted wastes. However,for "soft hammer" wastes, theapplicable statutory waste managementrequirements are somewhat differentthan for other restricted wastes (namely,a RCRA section 3004(g)(6) certificationto EPA is not required for "soft hammer"wastes when land disposed in unitsother than landfills or surfaceimpoundments). To account for thesedifferences, today's rule includescorresponding requirements in § 268.7.

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 notice for "softhammer" wastes requires the generatorto notify the receiving facility of theapplicable "soft hammer" prohibitionscodified in § 268.33 (i.e., that suchwastes are prohibited from landdisposal in landfill and surfaceimpoundment units unless accompaniedby a valid certification (anddemonstration, 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 (ifany), and any available waste analysis




data must also be included in this "softhammer" notice. The notification willinform treatment facilities (and otherhandlers) of the obligation to treat "softhammer" wastes destined for disposalin landfill or surface impoundment unitsto the extent treatment is practicallyavailable. This notification also servesto inform managers of these wastes thatthe storage prohibition in § 268.50 isapplicable to the waste.

Furthermore, today's action amends§ 268.7(a)(3) to specify that generators ofwastes which are the subject of case-by-case extensions or national variances,or disposers of wastes with "nomigration" exemptions must providenotification with each shipment of wasteto treatment and storage facilitiesreceiving the wastes. This changesupplements, and is consistent with, theexisting requirements to notify disposalfacilities. The Agency is also requiringthat generators retain copies of thisnotification.

3. Recordkeeping Requirements

The November 7, 1986, rule (51 FR40572) established a tracking system forwastes subject to the land disposalrestrictions requiring treatment facilitiesto have copies of the notifications andcertifications received from generatorsor other treatment facilities, anddisposal facilities to have copies of thenotifications and certifications providedby generators or treatment, storage anddisposal facilities as codified in 40 CFR268.7. To better facilitate the "cradle-to-grave" tracking system, today's actionincludes amendments to therecordkeeping regulations to coveradditional off site shipment scenariosand facilities which were previouslyoverlooked. In addition, today's ruleamends the recordkeeping provisions toinclude certain record retentionrequirements.

The previous recordkeepingprovisions were applicable togenerators, treatment facilities, and landdisposal facilities, but the rule languageomitted mention of facilities that simplystore prohibited wastes without treatingthem. As indicated in the April 8, 1988proposal, there is no reason for storagefacilities not to be covered by therecordkeeping requirements. TheAgency believes that all facilitiesreceiving restricted wastes should be onnotice that the waste is restricted andshould be notified of the applicabletreatment standard (or applicableprohibition) for the waste as part of a"cradle-to-grave" recordkeeping system.Accordingly, the Agency has correctedthis oversight by including storagefacilities under the recordkeepingrequirements of § 268.7. Besides the

"generator-to-storage" scenario, thisnotification requirement also applies toa treatment, storage or disposal facilitythat sends a restricted waste (ortreatment residue) off site to anothertreatment or storage facility. Note thatthis requirement is applicable to allrestricted wastes, not only thoseaffected by today's rulemaking.

EPA also proposed to amend theregulatory language of § 268.7(a)(3). Thisrequirement concerns the case where agenerator's restricted waste is eligiblefor land disposal because it is subject toan extension of the effective date or a"no migration" exemption (i.e., thewaste may be land disposed, but willnot necessarily meet the otherwiseapplicable treatment standards). Inaccordance with this provision, thegenerator must notify the disposalfacility of the status of his waste.However, current regulatory languagedoes not account for the possibility thatthe waste may not be sent directly to theland disposal facility, but rather to atreatment or storage facility. To avoidconfusion in cases where the wastes arenot shipped to a disposal facility, and tobe consistent with other § 268.7recordkeeping requirements, the Agencyis amending § 268.7(a)(3), as proposed,to require that the notice be sent witheach shipment of waste to the receivingfacility.

Today's rule is adding a provision (seenew § 268.7(a)(5)) to require generatorsto retain copies of data from testing thewaste, treatment residual, or extract ofthe waste or treatment residualdeveloped using the TCLP. The Agencybelieves that this addition to theregulations will establish consistencywith the existing provisions requiringthat data supporting decisions to restrictwastes based on knowledge of thewastes must be maintained in thegenerator's files. Furthermore, thisaction enhances the enforceability of theregulations.

Today's action also modifies thetracking system to include in§§ 268.7(a)(1), (a)(2), (a)(3), (a)(4), and(a)(5) provisions stating that generatorsand storers must retain copies of thenotifications and certificationsforwarded to treatment, storage, anddisposal facilities and received fromstorage facilities. The Agency believesthat these changes enhance theenforceability of the land disposalrestrictions regulations and makegenerator and storage recordkeepingrequirements consistentp, with therecordkeeping requirements of treatmentand disposal facilities.

Today's final rule also modifies§ 268.7(a) to provide for a limitation on

the time period that records are requiredto be retained by generators. Undercurrent regulations, owners andoperators of facilities are required tomaintain § 268.7 records for a finiteperiod of time, i.e., until closure of thefacility (§§ 264.73(b) and 265.73(b)).Previously, however, the regulatorylanguage did not stipulate a period oftime that generators needed to retainapplicable records (i.e., all supportingdata used to determine that a waste isrestricted based solely on thegenerator's knowledge). As such,generators were required to maintainrecords for an indefinite period of time.In light of the additional informationrequirad to be maintained by generatorsunder today's amendments to § 268.7(i.e., copies of the § 268.7 notices,certifications, and all waste analysisdata), the Agency believes that a finitetime period may be a more appropriateburden on generators, while preservingthe Agency's enforcement ability.

In the May 17, 1988 notice, the Agencyproposed a 5-year limitation on theretention requirement for all recordsgenerators produce to comply with§ 268.7 of the land disposal restrictions.EPA proposed (consistent with section262.40 manifest requirements) that (a)the time period would begin on the datethat the restricted waste is sent to on-site or off-site treatment, storage, ordisposal, and (b) the retentionrequirement would be extendedautomatically during the course of anyunresolved enforcement actions. EPA,however, did not propose to develop anexception reporting requirement likethat required in the generator manifestprovisions. The Agency recognized thatthe proposed retention period differedfrom § 262.40, which requires generatorsto maintain a copy of the manifest for a3-year period, but considered the 5-yearlimit to be an appropriate compromise toimposing an additional exceptionreporting requirement. The Agencysolicited comment on this approach.

Several commenters supported arecord retention period of 3 years to beconsistent with the generatorrecordkeeping requirements relating tomanifests and waste analysis (see 40CFR 262.40(a) and (c)). One commenterstated that the EPA would have ampleopportunity to review these recordswithin the 3-year period. Furthermore, itwas indicated that a 5-year limit maylead to unnecessary confusion for boththe regulated community and theregulators with respect to recordkeepingprocedures.

The Agency disagrees with thecommenters and is promulgating the 5-year generator record retention period




as proposed. EPA does not believe thatsuch a retention period will lead tounnecessary confusion. Since suchrecords are already required to begenerated, the Agency is not imposingany additional requirement thatgenerators affirmatively take action.This requirement simply provides thatgenerators leave such records in theirfiles for two more years rather thanaffirmatively taking action to destroysuch records after three years. This 5-year time period is particularlyimportant to the Agency's enforcementefforts because it allows EPA to obtainrelevant records which would otherwisebe lawfully destroyed after three years.Furthermore, the Agency believes that a5-year record retention requirement isappropriate because it is consistent withthe 5-year statute of limitationsapplicable to RCRA civil violations.

In addition, Agency data now indicatethat § 268.7 notices are being includedon manifests in few circumstances.Therefore, adopting such a requirementshould not have a substantial impact onthe generator manifest retentionrequirements.

As proposed, the record retentionlimit is extended automatically duringthe course of any unresolvedenforcement action regarding theregulated activity or as requested by theAdministrator. For the purpose of thisprovision, an unresolved enforcementaction includes, but is not limited to, theissuance of a Notice of Violation, awarning letter, or situations where acomplaint has actually been filed.

The Agency notes that it expects therequirement on the generator to keeprecords of notifications and wasteanalysis data to be discontinued in 1994(i.e., the latest date by which all listed oridentified hazardous wastes will besubject to the treatment requirements of§§ 268.41, 268.42 and 268.43-assumingthat certain wastes may be subject to a2-year national capacity variancefollowed by two 1-year case by-caseextensions under 40 CFR 268.5). At thattime, EPA will, however, reevaluate theprevalent waste management practicesto determine whether the recordkeepingrequirement for generators is necessaryand should be extended.

C. "Soft Hammer" Requirements

1. Applicability

RCRA 3004(g)(6) (42 U.S.C. 6924(g)(6))provides that if EPA fails to settreatment standards for any wastesincluded in the schedule promulgated onMay 28, 1986 (40 CFR 268.10-268.12, 51FR 19300) by the statutory deadline:

Such hazardous waste may be disposed ofin a landfill 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)f6)(A))

This so-called "soft hammer" appliesuntil EPA sets treatment standards oruntil May 8, 1990. After May 8, 1990, allscheduled wastes (except those subjectto capacity extensions) for whichtreatment standards have not been setwill be prohibited from all methods ofland disposal that have not beendetermined to be protective through the"no migration" process (40 CFR 268.6).

In today's final rule, the Agency is notsetting treatment standards for allwastes covered by the statutoryrequirements. EPA thus is promulgatingregulations implementing the "softhammer" provisions of RCRA.

In the April 8 proposal, the Agencydiscussed the applicability of "softhammer" provisions to wastes alsosubject to the California list prohibitions(52 FR 25760, July 8, 1987). In today'sfinal rule, the Agency has maintainedthe interpretation discussed in theproposal. During the period in which the"soft hammer" provisions are in effect,those wastes which are currentlysubject to the California listrequirements would remain so, and thusmight be prohibited from land disposaleven though they are also "softhammer" wastes. Likewise, compliancewith the California list requirementsdoes not necessarily fulfill therequirements of the "soft hammer"provisions. In previous preambles, theAgency has stated that the more waste-specific treatment standards andeffective dates will supersede the lesswaste-specific California listrequirements. In this case, the Agencyhas not made determinations withrespect to the specific "soft hammer"wastes, and such wastes must (at theleast) be treated or otherwise complywith the applicable California listrequirements. For a more detaileddiscussion of the relationship of theCalifornia list requirements to FirstThird wastes, refer to section III. E. ofthis preamble.

The Agency is somewhat changing theapplicability of the "soft hammer"provisions from that presented in theApril 8 proposal by moving certain "softhammer" wastewater treatmentresiduals to the Third Third (i.e.,§ 268.12). The specific wastewater

treatment residuals and the justificationfor this action is discussed in detail insection III. C. 3.

It is important to note that the "softhammer" provisions of 40 CFR 268.8,including the demonstrations,certifications, and treatmentrequirements, are only applicable tothose "soft hammer" wastes which (1)are not otherwise subject to Californialist treatment standards (e.g.,halogenated organic compounds andpolychlorinated biphenyls) (as opposedto California list statutory prohibitions.or codified levels, e.g., liquid metal andcyanide-containing wastes), and (2) areto be disposed in landfills or surfaceimpoundments. "Soft hammer" wastesmanaged by other methods of landdisposal (e.g., land treatment, deep-wellinjection), or "soft hammer" wastessubject to California list treatmentstandards thus are not subject to therequirements of 40 CFR 268.8.

2. Interpretation of Specific Terms

In the statutory passage from RCRAsection 3004(g)(6)(A) cited above, theterms "treatment" and "facility" areparticularly important and werediscussed in detail in the April 8proposal. EPA received many commentsregarding the interpretation of theseterms, as well as the term "practical", asthey relate to implementation of the"soft hammer".

a. Treatment. In the April 8 proposal,EPA solicited comment on theinterpretation of "treatment" for thepurposes of the "soft hammer". Manycommenters stated that the Agencyneeded to define "treatment" in moreconcrete terms so that there would be afirm standard to serve as the basis forcertification. (In fact, many owners andoperators of disposal facilities statedthat they would refuse to accept "softhammer" wastes because of theuncertainty of possible enforcementactions due to the ambiguity involvingthe term "treatment".)

In spite of such comments, the Agencyis not finalizing an interpretation of"treatment" that is much more definitivethan in the April 8 proposal. Due to thecomplexity of available treatmenttechnologies, the Agency is not able tomake firm statements defining ahierarchy of treatment technologies forevery "soft hammer" waste code, theavailability of which should beinvestigated before a valid certificationcan be made regarding a particularwaste code. By definition, the Agencyhas not made waste-specificdeterminations regarding "soft hammer"wastes, and therefore cannot make aspecific interpretation of "treatment" for




No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

each waste code (such an interpretationwould be tantamount to a "softhammer" treatment standard, which is acontradiction in terms). However, theAgency is able to offer a list ofappropriate technologies to beconsidered as treatment for most of theF- and K-list "soft hammer" wastes (seesection II. A. 8). In addition, EPA canlist generic types of treatment fororganic and inorganic wastes, in orderof preference (i.e., which are best, nextbest, and so forth). However, as apreliminary matter, the Agency feels adiscussion of the proposed approachesto interpreting "treatment" andcomments received will be useful inunderstanding the difficultiesencountered were one to take analternative approach.

In the April 8 proposal, EPAexpressed its belief that Congressintended that, during the period of the"soft hammer", only wastes treated tothe most protective levels achievable bypractically available technologies (ifany) may be land disposed in landfillsand surface impoundments (and thatonly the most protective of such units,i.e., units meeting the minimumtechnological requirements (MTRs) ofsection 3004(o), may be used). However,the Agency also stated that treatment isnot required solely for the sake oftreatment.

Having not made waste-specificdeterminations regarding the treatabilityof "soft hammer" wastes, the problemfacing the Agency is to implement anenforceable approach to the "softhammer" provisions by interpreting"treatment" such that it yields the mostenvironmental benefit practicallyavailable, avoids treatment for the sakeof treatment, and does not allow shamor de minimis treatment. Aninterpretation which is too stringent (i.e.,an interpretation limiting "treatment" toBDAT-type treatment) could actuallyresult in more untreated wastes beingdisposed in landfills and surfaceimpoundments either because of thelack of such treatment capacity orbecause the treatment would possiblyincrease costs beyond a point thatwould be considered practical. Toolenient an interpretation (i.e., allowingthe use of minimal treatment prior todisposal in a landfill or surfaceimpoundment) could conceivably resultin requiring treatment for the sake oftreatment (an unnecessary burden ongenerators with little or noenvironmental benefit) or could actuallyencourage the use of sham or deminimis treatment where moreprotective treatment is practically

available. The Agency does not believethis is what Congress intended.

EPA requested comment on anapproach that would limit the scope oftreatment tcchnologies to those thatyield a designated percent reduction inthe toxicity or mobility of hazardousconstituents, using a 20% reduction asan example. The Agency received mixedcomments, some supporting and someopposing the approach. Some of thosesupporting the approach suggestedlimiting the percent reduction to at least90%. In reviewing comments, the Agencyrealizes that this approach would fail tomitigate the ambiguities of "treatment".Many commenters expressed concernsin evaluating the percent reduction,especially where a waste or mixture ofwastes contains both organics andinorganics (the reduction of organicscould concentrate the inorganics).Another problem would be to specifythe waste analysis method to be used toevaluate percent reduction. And finally,it is clear to the Agency that manygenerators lack the expertise to identifyappropriate technologies yielding thedesignated percent reduction withoutpossibly costly and time-consuminganalyses. Thus, the Agency would becompelled to identify technologies thatyield the designated percent reductionfor all "soft hammer" wastes, which theAgency is unable to do. Therefore, EPAis not finalizing this approach tointerpreting "treatment".

EPA also requested comment on anapproach requiring that "soft hammer"wastes be treated to achieve meaningfulreductions of waste toxicity or mobilityand stating that sham or de minimistreatment cannot give rise to a validcertification. Here again, ambiguityregarding the term "meaningful"concerned many commenters. Also, thisapproach does not clearly state theAgency's preference for the use ofpractically available technologies totreat "soft hammer" wastes, providingthe most environmental benefit.(Although several commenters indicatedthat Congress intended to allow "softhammer" wastes to be disposed withoutan additional burden of treatment,allowing for whatever treatment hasbeen previously used, the Agencystrongly disagrees and believes thatCongress certainly would prefer the bestpractically available treatment of "softhammer" waste to less complete levelsof treatment.)

In today's final rule, the Agency isinterpreting "treatment" as processingwhich reduces the toxicity of the wasteor the likelihood of migration ofhazardous constituents from the waste.The Agency had attempted to provide

some further detail to this broadinterpretation by identifying wastemanagement practices which EPA doesnot intend to require (or encourage) andby providing discussions in thispreamble on the types of treatment thegenerator is expected to investigate.

The Agency emphasizes that it doesnot intend to require repetitivetreatment by the same processes, suchas re-incinerating ash derived from theincineration of the original waste. Inmany cases the Agency expects that theuse of a single process to treat thewaste, or quite possibly, one process fortreating organics and a second processfor treating inorganics, will satisfy thetreatment requirements of § 268.8. EPAis not, however, absolutely limiting thetreatment requirement to a singleprocess because the appropriatetreatment for some wastes may involvea standard treatment train of sequentialprocesses, or the treatment residualsfrom one process may require a secondtreatment process. For example, use ofsteam stripping to treat wastewater mayresult in a concentrated stream that mayrequire incineration before disposal(where the material cannot be recycled).Another example might be ash fromincinerating an organic/metal-containing waste. In this case, furthertreatment (e.g., stabilization) might berequired (depending on theconcentration level of metals and thepractical availability of stabilization). Afinal example is a waste containingmetals and cyanides, which wouldrequire separate treatments for bothtypes of constituents. The Agency willevaluate previous practices to determinewhether such a train of multipletreatment steps is appropriate for agiven waste.

As stated earlier, EPA is not requiringtreatment solely for the sake oftreatment. EPA believes appropriatetechnologies exist to treat "softhammer" wastes, although thesetechnologies may be determined not tobe practically available. The Agency isnot requiring, in the absence ofpractically available, appropriatetechnologies, that technologies whichare not appropriate for a given waste beused. However, the appropriatetechnology which results in the mostenvironmental benefit (i.e., in general,the greatest reduction in toxicity ormobility of hazardous constituents) mustbe used where practical and available.

EPA has attempted to provide someassistance to the generator on the typesof treatment that should be inveqtigatedprior to making a certification under§ 268.8. This assistance is presented intwo ways. First, in section III.A.8. of this





preamble, EPA provided a list oftechnologies appropriate for treatingspecific F- and K-list "soft hammer"wastes, in order of preference, i.e., bestto next-best and so forth. Because theAgency has not made a specificdetermination regarding the treatabilityof each waste, it cannot simply statethat the most-preferred technology isBDAT and that each less-preferredtechnology yields a correspondingly lessenvironmental benefit. However, ingeneral, EPA will use this list ofpreferred technologies as a basic guideto evaluating whether the generator hasinvestigated the technologies that yieldthe greater environmental benefit. Also,these appropriate technologies are listedby broad descriptions which EPAgenerally will not differentiate into morespecific types of treatment. For example,"incineration" may mean liquid injectionincineration, fluidized bed incineration,or rotary kiln incineration. Anotherexample is "stabilization", which caninclude the use of silicates, lime/fly ash,cement or cement kiln dust. AlthoughEPA generally will not differentiatebetween the different specific treatmentsystems within the treatment category,the Agency will differentiate betweenthe broad categories (i.e., the Agencymay invalidate a certification for"stabilization" of organics if"incineration" is practically available,assuming incineration is the more-preferred treatment for the particularwaste).

Second, the Agency is providingassistance in the form of a generichierarchy of preferred treatment types(discussed later in this section). Wherethe generic hierarchy of preferredtreatment types is used, the Agency willgenerally not differentiate betweenindividual technologies within thegeneric treatment type to determinewhether a different technology shouldbe used. Rather, the Agency willevaluate whether a technologybelonging to a more preferred generictreatment type is practically available.For example, "destruction" may meanthermal destruction or chemicaldestruction. In general, the Agency willnot differentiate between the two;however, the Agency may invalidate acertification if a recovery process (amore-preferred generic treatment type)is practically available.

These lists of appropriate technologiesand generic treatment types are notintended to be comprehensive, nor arethey a complete catalog of the types oftreatment that may be appropriate toconsider in evaluating availabletreatment for a specific waste. Theremay indeed be other types of

appropriate technologies available tothe generator of which the Agency isunaware (e.g., innovative technologieswhich the Agency may not consider"demonstrated" or "available" for thepurposes of BDAT). [It should also benoted that a more detailed considerationof the actual performance of thetechnologies may, in fact, reveal thatEPA's assumed hierarchy is incorrect forany specific waste and that there maybe specific waste streams where ahigher-ranked appropriate technologydoes not provide the greaterenvironmental benefit or is notappropriate for the waste stream. Forexample, a particular "organic" wastestream may contain an unusually highconcentration of metals, such thatincineration would not be consideredappropriate.] As a practical matter, thelists of appropriate technologies andgeneric hierarchy of treatment typesrepresent the minimum effort agenerator should make in seekingtreatment for his waste, serving as abasis for determining whether treatmentis practically available. The Agencymay require further justification in thedemonstration if the certifier has notinvestigated the availability of theappropriate technologies listed for aspecific waste.

Generically, the Agency generallyfavors recycling/recovery as the bestmethod for treating a waste, eliminatingor reducing the residual to be disposed.Where recycling is unavailable orinappropriate or ineffective, the Agencyprefers technologies resulting in thedestruction of hazardous constituents,where such destruction may be eitherthermal (i.e., incineration or burning) orchemical, especially for organics. Whereneither recovery nor destruction isavailable or appropriate, immobilization(stabilization) is often effective,especially for inorganic constituents (Cf.H. Rep. No. 198, 98th Cong. 1st Sess. 31(setting out a comparable hierarchy ofpreferred waste managementalternatives)). EPA wishes to note that,given the results of the TSDR Survey(see section III. H.), the Agency believesthat liquid incineration and stabilizationare generally available (although thegenerator must determine whether suchtreatment is appropriate or practicallyavailable for his waste).

b. Facility. As proposed in the April 8proposal, the Agency interprets the term"such facility" in RCRA section3004(g)(6)(A) to refer to the individuallandfill or surface impoundment unit.This interpretation results in therequirement that where "soft hammer"wastes (and treatment residues) aredisposed in a landfill or surface

impoundment, such unit must meet theminimum technological requirements(MTRs) of 3004(o) applicable to newunits (i.e., double liners, leachatecollection system, and groundwatermonitoring).

The Agency received numerouscomments on its proposed interpretationof "such facility". Most commentersopposed this restrictive use of the termand urged the Agency to interpret theterm more broadly as referring to theentire facility, so that wastes could bedisposed in any unit so long as any new,expanded or replacement units on thefacility met the MTRs. The Agency doesnot agree with these comments and forreasons discussed in the preamble to theproposed rule (53 FR 11766) is finalizingthe interpretation as proposed. Toaccept the interpretation urged bycommenters would render section3004(g)(6) meaningless; facilities arerequired to meet the requirements ofsection 3004(o) already by virtue of thatprovision. A further command to do sois unnecessary. As noted at proposal,the legislative history to this provisionalso strongly favors the Agency'sreading. Moreover, these commentersignore the remainder of section3004(g)(6), which not only refers to "suchfacility" (referring back to landfills andimpoundments), but also appliesrequirements that apply to newfacilities, i.e., double liners and leachatecollection systems.

EPA's interpretation Is also consistentwith the special concern that Congresshas for surface impoundments andlandfills as reflected in section1002(b)(7) of RCRA:

Certain classes of land disposal facilitiesare not capable of assuring long termcontainment of hazardous waste, * * * andland disposal, particularly landfill andsurface impoundment, should be the leastfavored method for managing hazardouswastes;

Further, the Agency believes that thealternative of accepting the use of theword facility as applying to all unitswithin the property boundary would notlead to the interpretation that thecommenters wished, but rather to aneven more restrictive result, requiringthat the wastes only be disposed atfacilities where every landfill andsurface impoundment unit at the facilitymet the MTRs. This results from thereference in the statute to - ** therequirements of subsection (o) which areapplicable to new facilities (relating tominimum technological requirements)".At a new facility (using the propertyboundary definition of facility), all suchunits would be required to meet theMTRs. Although the literal language of



31182 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations3004(g)(6) allows this reading, EPAbelieves the better interpretation is theone it is adopting.

c. Practical. EPA received numerouscomments on the April 8, 1988 proposalregarding the "soft hammer" provision.Although the Agency did not specificallyrequest comment on the term"practical", many commenters believedthis term was crucial to theinterpretation of the statute andexpressed their views that Congressintended "practical" to refer to the useof economic considerations indetermining whether a treatmenttechnology is a "practical" alternative toland disposal.

In general, the Agency does notconsider costs when making wastemanagement determinations underRCRA (since EPA is not authorized todo so), but rather limits suchconsiderations to technical feasibility.However, EPA agrees with thecommenters' assertions that economicconsiderations were not specificallyexcluded by Congress under RCRAsection 3004(g)(6) and that by using theterm "practical", Congress also allowedfor cost considerations in evaluatingwhether available treatment is apractical alternative to land disposal forthe purpose of the "soft hammer" under3004(g)(6).

Many commenters expressed theirconcerns that this interpretation maycreate inconsistencies and confusionregarding a generator's determinationswhether or not treatment is "practical".For example, a generator may considerany increase in cost to be impracticaland certify an untreated "soft hammer"waste for disposal when, in fact, costeffective treatment is available. Becausethis certification would be self-implementing and would be consideredvalid until EPA took action to invalidateit, the Agency believes a discussion ofhow it will evaluate demonstrationswith regard to the term "practical" isnecessary.

Without time for further comment,EPA cannot promulgate a strictlyquantified interpretation of the term"practical". Indeed, as with theinterpretation of "treatment", such atask is undoubtedly self-defeating.However, the Agency can indicate howit will evaluate demonstrations andcertifications regarding whether atreatment technology is practicallyavailable.

First, EPA will evaluatedemonstrations with a consideration ofprevious practices. If a generator's "softhammer" wastes were treated in thepast, the Agency would consider at leastthis type of treatment to be "practical"for that generator. (This assumes that

the previous practice is currentlyallowable; for example, a previouspractice of treatment in a surfaceimpoundment that does not qualify forthe treatment in surface impoundmentexemption under § 268.4, is notallowable.) However, the generator musttreat his waste by the best treatment(i.e., the treatment yielding the greatestenvironmental benefit) that ispractically available. The Agency doesnot intend the "soft hammer" provisionsto act as an excuse to discontinuecurrent treatment practices (exceptwhere such practices are no longerallowable), nor does it intend to limit thescope of "treatment" to only previouslyconducted treatment.

Second, EPA is presenting a cost ratiothat measures the costs of treatmentrelative to the baseline cost of shipmentand disposal in a landfill or surfaceimpoundment unit meeting the minimumtechnological requirements (MTRs) of3004(o). The cost of shipment anddisposal in an MTR unit is the baselinecost because this cost is incurred byboth treated and untreated "softhammer" wastes (assuming the wastesare disposed in a landfill or surfaceimpoundment; as stated before, wastesdisposed by other methods of landdisposal are not subject to thedemonstrations and certifications of§ 268.8).

In general, given the ratio of:

costs of treatment, shipment and disposal

costs of shipment and disposal

EPA will ordinarily consider a ratio of2.0 or greater not to be "practical".Similarly, a ratio of 1.5 or less willusually be considered "practical".Within the range of 1.5 to 2.0, EPA willgenerally consider treatment to be"practical" unless the certifier candemonstrate why this cost should beconsidered not "practical" (subject tojudgement of individual circumstances).The Agency emphasizes that this costratio and consideration of "practical" isonly a basic reference tool, and not ahard and fast rule. The generator maydemonstrate that a cost ratio of lessthan 1.5 is not "practical"; and likewise,EPA may consider a cost ratio of greaterthan 2.0 to be "practical", especiallywhere previous practices so indicate.

One anomalous situation could resultif EPA relied solely upon this cost ratio.For example, Generator A has an on-siteMTR unit, while Generator B (across thestreet from Generator A) must ship his"soft hammer" waste out of state to acommercial disposal facility. The costsof shipment and disposal for Generator

A would be negligible, and thus, almostany cost of treatment would beconsidered to be not practical, given theratio above. Conversely, Generator B'sbaseline costs would be much greater,and therefore could be required toconsider many more treatmenttechnologies as practical. In such cases,EPA will evaluate Generator A'scertification and demonstration ofpractically available treatmenttechnologies by methods other than theabove cost ratio. EPA will use otherconsiderations, such as knowledge ofavailable technologies and relativefinancial status or size of the facility andevaluate such demonstrations andcertifications on a case-by-case basis.

In addition, the Agency emphasizesthat where treatment is demonstrated tobe a practical alternative to landdisposal of untreated wastes, suchtreatment must be used. For example, agenerator whose on-site treatmentprocess is not yet on-line may notdisregard "practical" off-site treatmentand continue to dispose of untreated"soft hammer" wastes until histreatment process is on-line. Such agenerator must employ the off-sitetreatment. (Note.-As discussed later insection III.C.6. of this preamble, thestorage prohibition of § 268.50 applies to"soft hammer" wastes not subject to avalid § 268.8 certification. Therefore,"soft hammer" wastes may only bestored "* * * for the purpose of theaccumulation of such quantities ofhazardous waste as are necessary tofacilitate proper recovery, treatment ordisposal".)

Furthermore, as stated earlier, thebest practical treatment must beemployed (given the list of appropriatetechnologies and the generic hierarchyof preferred treatment-types anddetermination 'of "practical"). This is notto be confused with the most practical(or cost-effective) treatment. Once all"practical" treatments have beenidentified, then the best treatment mustbe used.

EPA's interpretation of the term"practical" also responds to commentsreceived requesting clarification ofwhether a generator must investigatetreatment on a national or regionalbasis, or within an established area of,for example, 200 miles from the site.Given the Agency's interpretation ofwhat constitutes "practical", thisquestion becomes moot. The generatormust investigate all practically availabletreatment, regardless of State orRegional boundaries, or any specificdistance from the site.

As an alternative to the cost ratio, theAgency considered using a financial





ratio. Under this alternative, EPA wouldcompare the incremental cost of treatinga particular shipment of waste to ameasure of the generator's financialstrength, and determine that treatment isnot practical where the ratio exceeded aspecified percentage which the Agencybelieved would impose a significanthardship on the generator. For example,EPA would compare the incrementalcost of treatment to the generator's netpre-tax profit for the waste generationperiod, and would consider a particulartreatment to be not practical if theincremental cost exceeded X percent ofnet pre-tax profit

The principal apparent advantage tousing a financial ratio instead of a costratio is that it would tie thedetermination of whether a treatment ispractical to the individual generator'sability to pay for the treatment. Thus theAgency could systematically avoidrequiring a generator to incur unduefinancial hardship in seeking treatment.However, on further analysis, EPArejected the use of a financial ratio forseveral reasons.

First, the use of any relatively simplefinancial ratio would tend to discouragewaste minimization. Generators whoproduced relatively more waste per unitof product than similar generators intheir industry would be more likely toexceed the ratio (all things being equal)and, therefore avoid the incrementaltreatment cost. Thus, this approachcould result in rewarding inefficientgenerators for producing excessiveamounts of waste; clearly contrary tothe intent of Congress regarding wasteminimization.

Second. the use of a financial ratiowould pose serious implementationdifficulties. For example, evaluatingdemonstrations for generators whoproduce wastes from diverse processeswould require substantial effort on thepart of the generator, EPA, and theStates, to generate, coordinate, andsubstantiate the necessary data.

Third, a financial ratio would bedifficult to enforce. In addition to thedifficulties likely to be encounteredusing either the cost ratio or thefinancial ratio, such as verifyingtreatment cost data and generatordiligence in pursuing treatment options,use of the financial ratio has the addeddifficulty of verifying the financial datasubmitted by the generator.

Finally, given the other considerationsto be used in evaluating whethertreatment is practical in addition to thecost ratio, the Agency believes the costratio is the more efficient method toevaluate practical treatment, in terms oftime and resources. As illustrated in theexample above, the cost ratio is not

suited for every situation, and theAgency strongly emphasizes that thecost ratio is not to be the soleconsideration in evaluating whether aparticular treatment is "practical".

The Agency realizes that not allgenerators of "soft hammer" wasteshave the sophistication in wastemanagement to know the relative costsof treatment, shipping and disposal fortheir wastes. However, the Agencybelieves the additional informationneeded to demonstrate the availabilityof practical treatment can be easilyascertained. Also, once the generatorhas investigated available technologies,EPA does not believe that wastemanagement conditions (i.e., theappropriate technologies which arepractical and available) initiallycertified to will change so drasticallyduring the "soft hammer" period that acomplete reevaluation of "practical"treatments will be required.

3. Certification RequirementsThe Agency received many comments

regarding the demonstration andcertification required under § 268.8 toproperly dispose of "soft hammer"wastes in a landfill or surfaceimpoundment unit meeting the minimumtechnological requirements of RCRAsection 3004(o). EPA is finalizing thecertification requirements essentially asproposed in the April 8 proposal, withsome changes made in view of theAgency's final interpretation of theterms "treatment", "facility", and"practical".

a. Certification for Treated "SoftHammer" Wastes. Many commentersstated that residuals from treatment of"soft hammer" wastes should notrequire certification or subsequentmanagement in MTR units. The Agency,however, disagrees with thecommenters' reading of the statute andis today promulgating the proposedapproach. As discussed in the April 8proposal (53 FR 11767), the Agencybelieves the intent of Congress is torequire certifications and managementin MTR units for residuals fromtreatment of "soft hammer" wastes. TheAgency has not set treatment standardsfor these wastes, and EPA does notbelieve that Congress intended fortreated "soft hammer" wastes(especially where such treatment maybe considered minimal relative toBDAT-type treatment) to be shieldedfrom the requirements of 3004(g)(6) andtreated the same as wastes meeting thestringent requirements for treatmentunder RCRA section 3004(m). It shouldalso be noted that Congress equatedtreatment residuals and the underlyingwaste in section 3004(m)(2), so that

prohibitions applicable to the wastebeing treated apply to the treatmentresiduals as well (unless, of course, theresiduals satisfy the applicabletreatment standard-not the case for"soft hammer" wastes). Therefore, therequirements of § 268.8 also apply totreatment residues of "soft hammer"wastes. (As discussed more fully below,however, EPA does believe itappropriate to reprioritize the schedulefor prohibiting certain wastewaterresidues from treatment of "softhammer" wastes. To this extent, EPAhas, it believes, accommodated some ofthe principle concerns raised bycommenters.)

Commenters raised one further issueconcerning the relationship of the "softhammer" provision's applicability totreatment residues, plus the restrictionson placing "soft hammer" wastes only inimpoundments and landfills that meetminimum technology requirements. Anumber of companies use BDAT-typetreatment to treat "soft hammer"wastes, and then further treat theresulting treatment residues inimpoundments that do not satisfyminimum technology requirements. Forexample, a number of companiesincinerate off-specification commercialchemical products which are in the firstthird of the schedule of listed wastes butfor which EPA did not proposetreatment standards, and generatescrubber water which is further polishedin biological treatment ponds. Suchponds meet the requirements of section3005(j)(3) and so need not be retrofittedas of November 8, 1988 but for thereceipt of the scrubber water fromtreating a "soft hammer" waste.

This result is not in keeping with thefundamental policy of the land disposalrestrictions statutory provisions:effective pretreatment of wastesfollowed by unprohibited disposal of thetreatment residues. In addition, thethrust of the "soft hammer" provisionitself is to make disposal of untreatedwastes for which there is no treatmentstandard more difficult, but notnecessarily to impose the samedifficulties on residues from BDAT typetreatment of those wastes.

Accordingly, EPA has decided tomodify its proposal so that residuesfrom substantial treatment of certain"soft hammer" wastes maybe furthertreated in land disposal units that do notmeet minimum technology requirements.EPA is accomplishing this by amendingthe schedule of prohibited wastes toindicate that wastewater (i.e., less than1% total organic carbon (TOC) and lessthan 1% total suspended solids (TSS))residues from the treatment of "soft



31184 Federal Register I Vol. 53, No. 159 / Wednesday, August 17, 1988 I Rules and Regulations

hammer" wastes by the following list oftechnologies, are to be included in thethird third of scheduled wastes forwhich EPA is to develop treatmentstandards. The wastewater residuesfrom treatment affected by this actionare limited to those wastewater (lessthan 1% TOC and less than 1% TSS)residuals resulting from the well-designed and well operated treatment of"soft hammer" wastes by: metalsrecovery, metals precipitation, cyanidedestruction, carbon adsorption, chemicaloxidation, steam stripping,biodegradation, and incineration orother direct thermal destruction. Thereis strong policy justification for takingthis step: persons who are substantiallytreating their wastes to levels that maysatisfy ultimate treatment standards arenot precluded from further treatment ofthese wastes in polishing or advancedbiological treatment (i.e., sections 3005(j)(3) and (j)(13) units) that aresubstantially protective of human healthand the environment (although notequivalent to minimum technologyimpoundments from the standpoint ofpreventing migration from the unit).Furthermore, EPA does not believe thatthese types of treatment residuals arethe types of highly contaminated wastesdeserving of prioritization in the firstthird of the schedule (see RCRA section3004(g)(2)).

EPA also has decided to amend theschedule so that leachate andcontaminated ground water that arederived from disposal of a "softhammer" waste, or that contain "softhammer" wastes, are also in the thirdthird of the schedule (and thus wouldnot be considered to be prohibitedwastes until May, 1990 or until EPAestablishes treatment standards,whichever is sooner). As discussed insection III.A.4., EPA generally believesthat contaminated leachate and groundwater (which is basically ground waterwith the leachate in it) can be treated tomeet the treatment standard for thewaste from which they are derived orthat they contain. Notwithstanding this,however, if there is no treatmentstandard for the leachate orcontaminated ground water to meet,EPA does not believe it fair to imposethe "soft hammer" standards on thesewastes. These wastes may be highlydiluted so that treatment in section 3005(j)(3) and (j)(13) impoundments may beappropriate. Thus, for reasons offairness and appropriateness, EPA hasdecided to amend the schedule insection 268.12 to include leachate andcontaminated ground water that areeither derived from or that contain "softhammer" wastes.

The following examples illustrateapplication of the regulations:

1. Generator A incinerates wasteU119, a First Third waste for which EPAhas not established a treatmentstandard. Scrubber water from theincinerator is piped to an aggressivebiological treatment impoundmentwhich has a section 3005(j)(3) retrofitwaiver which does not satisfy theequivalency standard in section3004(o)(2).

The scrubber water from incineratingthis "soft hammer" waste is not aprohibited waste because it is in thethird third of scheduled wastes.Consequently, placement in the surfaceimpoundment does not violate the landdisposal prohibitions.

2. Generator B treats a "soft hammer"waste in a wastewater treatment systemwhich consists of chemical precipitation,biological treatment (all conducted intanks), and polishing in an impoundmentwhich has obtained a section (j](3)waiver but cannot demonstrate section3004(o)(2) equivalence.

The wastewater residue is notprohibited for the same reason as inexample 1.

3. Generator C generates a leachatewhich is derived from disposal ofcertain "soft hammer" wastes andcertain First Third wastes for whichEPA has established treatmentstandards. The leachate is piped to animpoundment which has obtained asection 3005(j)(13) variance but has notsatisfied section 3004(o)(2) equivalence.

The leachate could not be placed inthe impoundment unless it meets thetreatment standards for the listedwastes from which it is derived (or themost stringent standard in the event ofoverlapping treatment standards for thesame constituent). However, if theleachate is treated to meet treatmentstandards before placement in theimpoundment, then the placement islegal because the treated leachatewould no longer be prohibited (since itwould then derive from disposal of "softhammer" wastes-a Third Thirdwaste-and would meet all applicabletreatment standards for the prohibitedwastes from which it is derived).

4. Generator D generates a "softhammer" wastewater which is pumpeddirectly into an on-site impoundmentprior to discharge under an NPDESpermit. The impoundment is subject to aretrofit waiver under section 3005(j)(13),but cannot demonstrate section3004(o)(2) equivalence.

The "soft hammer" wastewater isprohibited from land disposal in the(j)(13) impoundment. In this example,there has been no treatment, and thus

this wastewater is not a wastewaterresidue from treatment. Therefore, thiswastewater is subject to the prohibitionsin § 268.33(f) and precluded fromdisposal in a non-MTR impoundment.

Three final notes on this matter. EPAis reprioritizing only these selectedwastewaters, rather than solids destinedfor landfill disposal, for a number ofreasons. First, wastewaters can betreated further in surface impoundmentsbut not in landfills. Thus, wastewaterscould be treated further in non-minimumtechnology units; solids could not be.EPA thus does not wish to foreclose thepossibility of further treatment of "softhammer" wastewater residuals,leachate and contaminated groundwater. There is no correspondingopportunity for treatment for solidresidues. Second, most landfill units domeet the minimum technology standardsat this time-and virtually allcommercial landfill units receivinghazardous wastes do. Thus, thelikelihood of residues from substantialtreatment of "soft hammer" wastesgoing to non-minimum technologylandfills is not great. In confirmation,EPA made inquiries and was notinformed of any actual instances of suchresidues from treatment of "softhammer" wastes going to non-minimumtechnology landfill units. Accordingly,EPA is only reprioritizing the schedulefor the wastewaters discussed above.Third, this action does not affect theregulatory status of spent solvents,dioxins, or California list wastescontained in wastewater residues fromtreatment, leachate, or contaminatedgroundwater. These wastes are notsubject to the schedule pursuant toRCRA section 3004(g).

Finally, EPA is amending the scheduleof prohibited wastes without notice andcomment. EPA believes that theschedule is absolutely committed to itsdiscretion, given that the schedule is notsubject to judicial review (see RCRAsection 3004(g)(3)). The schedule alsoarguably constitutes a rule of Agencyprocedure. In either case, opportunityfor prior comment is not required whenEPA promulgates or amends theschedule.

b. Certification by Owners orOperators as Well as Generators.Comments received from many ownersor operators of treatment and disposalfacilities expressed strong opposition toEPA's proposed approach to expand thestatutory certification requirementapplicable to generators to includecertification by owners or operators.

Given the Agency's interpretation of"practical", EPA agrees with thecommenters. The statute requires the

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generator to make the determinationwhether alternative treatment ispractically available. It is doubtfulwhether the owner or operator is able todetermine Whether a technology is"practical" for a generator. Also,because the Agency is requiring thegenerator to use the best practicallyavailable treatment (i.e., the treatmentwhich yields the greatest environmentalbenefit), the generator must make thedemonstration, whether treatment ispractically available or not. Therefore,only the generator is required (andallowed) to make the demonstration andcertification pertaining to the practicalavailability of treatment for his waste.

However, the owner or operator mustcertify that the generator's waste hasbeen properly treated by the technologydetermined by the generator to be thebest practically available treatment.This is consistent with the existingcertification requirements under§ 268.7(b) and will allow the Agency totrack the waste from cradle-to-grave.

EPA emphasizes that it is notrequiring an owner or operator todemonstrate that his treatment is thebest practical treatment available.Rather, the generator must make thisdemonstration. However, the owner oroperator must certify that he hasproperly treated the waste prior todisposal.

c. Certification. Having somewhatbetter defined the terms "treatment" and"practical", EPA is promulgating a lessambiguous approach to the "softhammer" than was proposed. However,the basic approach is essentially thesame.

Prior to disposal in a landfill orsurface impoundment unit meeting theminimum technological requirements of3004(o), a generator must demonstratehis good faith effort to treat his waste bythe best practically available treatmenttechnology(ies). The generator mustdetermine which treatment technologiesare practical and available, and choosethe best treatment. (Where no treatmentis practical or available, the generatormay so demonstrate and certify.) Tomake this demonstration, the generatormust provide a list of facilities andfacility officials contacted, completewith addresses, telephone numbers andcontact dates. The generator mustdocument or otherwise explain hisdetermination that the treatments arenot practically available, or wheretreatments are available, must justifythat he has chosen the best treatmentthat is practically available.

This demonstration and certificationmust be submitted to the RegionalAdministrator. The generator must alsosend the demonstration and certification

(and notification) to the receivingfacility with the initial waste shipment.Provided that the conditions affectingthe certification do not change (i.e., thesame demonstration remainsapplicable), only the certification andnotification need be sent with eachsubsequent waste shipment. (Copies ofthe certifications and demonstrations foreach subsequent waste shipment neednot be sent to the RegionalAdministrator, provided the conditionsof the original certification do notchange.) The notification, demonstrationand certification must also be kept on-site in the generator's records. Also,should the Regional Administratorinvalidate his certification, the generatormust immediately notify all facilitiesthat have received his waste that thecertification (and demonstration) is nolonger valid, and must keep records ofthis communication.

In general, one treatment process willsatisfy the requirement with theexceptions of typically-used treatmenttrains or a combination of technologies,each of which deals with an organic andinorganic component of the waste. TheAgency again notes that it generallybelieves that liquid injectionincineration (including burning inindustrial furnaces) is available fororganic constituents and stabilizationtechnologies are available for inorganicconstituents.

Where treatment is available, thegenerator must send the notification,demonstration and certification to thetreatment facility. After propertreatment, the owner or operator mustthen certify that the waste has beentreated by the best practically availabletreatment (as documented in thegenerator's demonstration) and sendthis certification (and notification) andthe generator's demonstration with theinitial waste shipment to the disposalfacility (a demonstration is not requiredfor subsequent shipments unlessconditions change). The treatmentfacility must keep records ofdemonstrations and certifications (andnotifications) received and forwarded todisposal (or other receiving) facilities.The owner or operator of a treatmentfacility is responsible for treating thewaste as the generator indicates in thecertification (or demonstration) sent forthat particular waste shipment, and forrecordkeeping.

The disposal facility may dispose of"soft hammer" wastes (whether treatedor not) only in MTR units (includingthose, like most section 3005 (j)(2) and(j)(4) impoundments, which satisfy thesection 3004(o)(2) equivalency standard)(assuming disposal is in a landfill orsurface impoundment). The owner or

operator of a disposal facility isresponsible for ensuring that only "softhammer" wastes (or residuals) subjectto a certification pursuant to § 268.8(and demonstration, for the initial wasteshipment) are disposed in a landfill orsurface impoundment unit, and that suchunit meets the minimum technologicalrequirements.

An owner or operator of a storagefacility must keep copies ofnotifications, demonstrations andcertifications of "soft hammer" wastesreceived and forwarded.

To implement this approach, theAgency is departing somewhat from theproposed §.268.8. Specifically, EPA ispromulgating an additional certificationfor the generator for cases wherepractical treatment is available. Thiscertification requires the generator tocertify that, as indicated in hisdemonstration, he is sending his wasteto be treated by the best practicallyavailable treatment for his waste. Also,EPA is adding a certification (similar tothe 268.7(b) certification) for the owneror operator to certify that he hasproperly treated the generator's waste,as indicated in the demonstration.

4. Treatment of "Soft Hammer" Wastesin Surface Impoundments

As discussed in the April 8 proposal(53 FR 11768), "soft hammer" wastestreated in a surface impoundmentsubject to the exemption for treatment in§ 268.4 would be required to be removedat least annually. The Agency proposedto allow that certification for disposalmay be made without removal of theresiduals provided that no furthertreatment is practically available. Thedemonstration and certification may bemade at the time of placement in theimpoundment for treatment.

Commenters generally supported thisapproach, citing the identical minimumtechnological requirements for unitswhich can treat restricted wastes andunits which can dispose of "softhammer" wastes (and residuals) and thepotential risk of damaging theimpoundment liners during removal.Therefore, EPA is promulgating itsproposed approach.

5. Retrofitting Variances

As proposed, today's final ruleinterprets the variance provisions of3005(j)(11) to allow "soft hammer"wastes to be treated in surfaceimpoundments that meet the minimumtechnological requirements of 3004(o) orhave received variances under either3005(j)(2) (one quarter mile from anunderground source of drinking waterand compliance with applicable ground



SR118 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulations

water monitoring requirementsl or )(4)(located and designed to preventmigration of hazardous constituerts toground wat3r or surface water). Thisresult is logical since wastes not meetingtreatment standards can also be treatedin such impoundments (see section3005j)(11)). If there is no furthertreatment practically available, theresiduals would not have to be removedannually, again paralleling therequirements for wastes for whichtreatment standards have been set andwhich are being treated in surfaceimpoundments.

Although many commenters statedthat the retrofit waivers granted under3005 (j)(3) or (j)(13) should also beautomatically recognized under the landdisposal restrictions, the Agencydisagrees. EPA believes that Congresswould have included these waivers hadit intended to do so. Such waiverssimply do not automatically satisfy theequivalency standard in section3004(o)(2), although they may on a unit-specific basis. Moreover, the absence ofsuch exemptions in section 3005(j)(11) ishighly suggestive. Even if EPA somehowconstrued the "soft hammer" provisionto allow placement in non-equivalentsection (j)(3) and (j)(13) impoundments,placement would still be prohibitedunder section 3005(j)(11). Therefore,"soft hammer" wastes cannot be treatedin surface impoundments operatingunder retrofit waivers granted under theauthority of 30050" (3) or (13), unless anequivalence demonstration has beenmade under 3004(o)(2). If thisdemonstration has been made, thesurface impoundment has satisfied therequirements that would be applicableto new impoundments, and is notprohibited from receiving "soft hammer"wastes. (For a further discussion ofthese issues, see the April 8 proposal at53 FR 11768.)

6. Storage Prohibition

As discussed in the April 8 proposal(53 FR 11770-11771), the Agencybelievee the storage prohibition in§ 268.50 is applicable to all First Thirdwast-, -,--uading "soft hammer" wastes.The stcge prohibition in RCRA section3004(j) applies to wastes which areprohibited from "one or more methodsof land disposal", and in RCRA section3004(g)(f6), "soft hammer" wastes areprohibited from disposal in a landfill orsurface impoundment unit (unlesssubject to a valid certification).

EPA's proposed approach was thatthe storage prohibition would no longerapply to "soft hammer" wastes whichare subject to a valid certification under§ 268.8. No comments strongly opposingthis approach were received, and

therefore, the Agency is promulgatingthe approach as proposed. "Softhammer" wastes thus are prohibitedfrom storage under § 268.50, unless suchwastes are subject to a validcertification under § 268.8 (see sectionIII.C.3. for the significance of validcertification).

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

In the April 8, 1988 proposal, EPAsolicited comment on its intent tochange the interpretation of RCRAsection 3004(h)(4) that was originallypromulgated in the November 7, 1983Final rule (51 FR 40572). The Agency'soriginal interpretation provided thatrestricted wastes subject to. anextension of the effective date which aredisposed in a landfill or surfaceimpoundment must be disposed in a"facility" in compliance with theminimum technological requirements ofsection 3004(o). EPA originallyinterpreted "fac'lity" to refer to the areawithin the property boundary,encompassing all waste managementunits (both new and existing). Becausethe minimum technological requirementsof section 3004(o) (double liner, leachatecollection system, and groundwatermonitoring) only apply to new,replacement, or lateral expansionlandfill or surface impoundment units(and not to existing units), a wastesubject to art extension of the effectivedate could be disposed at a "facility"provided all new, replacement, andlateral expansion landfill and surfaceimpoundment units met the 3004(o}requirements. However, thisinterpretation, had little actual impact orwhether the restricted waste would bedisposed in an individual "unit" thatsatisfied the 3004(o) requirements.

EPA has reevaluated its originalinterpretation and now believes thatCongress intended the term "facility" torefer to "unit", which is consistent withthe Agency's current interpretation ofthe term "facility" in RCRA section3004(g)(6), referring to the disposal ofFirst Third wastes for wh.,zbr matreatment standards have beenestablished. Legislative history tosection 3004(h)(4), in fact, states thatCongress meant to prohibit disposal ofrestricted wastes subject to a capacityvariance in all surface impoundments orlandfills except those meeting minimumtechnological requirements applicable tonew facilities. (See H.R. Conf. Rep. No.1133, 98th Cong., 2d. Sess., 87). (Thispassage in the Conference Reportactually refers to disposal of wastessubject to a case-by-case capacityvariance under section 3004(h)(3), but

EPA sees no basis for not applying it tosection 3004(h)(4) as well.)

Although many commenters c zithis reinterpretation, the Agencybelieves the intent of Congress is caar.These commenters argued that thalanguage of (h)(4) unambiguoualyapplies to entire facilities and therefarethat the Agency's existing interpretationis compelled. EPA disagrees. If anytling,the literal language of the provisionscompells the Agency's amendedinterpretation, because (h)(4) refers to"such facility", referring back tolandfills and surface impoundments.Moreover, the reading the commentersurge makes the entire section (h)(4) intosurplusage. Facilities must already be incompliance with the requirements ofsection 3004(o) by virtue of section3004(o) iiseLf. Thus, a waste subject to a'capacity variance can only go to anentire facility that is complying withsection 3004(o), and a command to do so(which is how the commenters wouldread (h)(4)) adds nothing to the lawwhich is not already there. Congressclearly had something else in mind inpromulgating section 3004(h)(41. The"soft hammer" provision of 3004[g)(6)throws light on congressional intent.This provision, as discussed previously,definitely requires "soft hammer"wastes to be disposed in minimumtechnology impoundments and landfills.EPA believes that Congress intended thesame result for the other type of wastefor which a prohibition effective datehas passed but is being disposedwithout complying with treatmentstandards, namely wastes subject to acapacity variance. Finally, when onereads the unequivocal legislative historystating that wastes subject to a varianceshould only be disposed in minim=.technology landfills and surfaceimpoundments, it is clear to the Agencythat not only is it the better reading of(h)(4) to apply to landfill andimpoundment units, but that this readingprobably is compelled.

However, the Agency does agree withcommenters who asserted that EPA hassome flexibility in setting the effectivedate of this new interpretation. Manycommenters claimed that an August 8,1988 effective date of thereinterpretation would disrupt theirsurface impoundment operations, whichhave been scheduled to comply with theNovember 8,1988 deadline (in section3005j)(1)1 for retrofitting surfaceimpoundments (i,e., the date on whi:hsurface impoundments must cease toreceive, store, or treat hazardous wastesunless the unit is in compliance with theminimum technological requirements ofsection 3004(o), or has received a waiver




from these requirements under RCRAsection 3005(j) (2), (3), (4), or (13)). Whilethe 3-month period involved is relativelyshort, the Agency does agree that thisreinterpretation could disrupt surfaceimpoundment operations by, in effect,moving the retrofitting deadline aheadwithout ample notice. Because it is notEPA's intent to unduly disrupt businessoperations where flexibility exists to dootherwise, the Agency has decided tomake the new interpretation of RCRAsection 3004(h)(4) effective on November8, 1988. Since the interpretation of3004(h)(4) is not a regulationestablishing a prohibition from landdisposal, it need not become effectiveimmediately (see RCRA section3004(h)(1)). However, given that theAgency believes its earlierinterpretation to be wrong, thatCongress intended that wastes subjectto capacity variances to go to minimumtechnology landfills and impoundments,and that the period of businessdisruption for impoundments ceases onNovember 8, EPA believes that goodcause exists to make this interpretationeffective in three months rather than six(see RCRA section 3010(b)(3)).

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 HOCs and otherprohibited wastes), where the Agencymakes a waste specific determinationinvolving a California list waste, suchdeterminations will supersede theCalifornia list treatment standards andeffective dates. This principle alsoapplies 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 waste-specific than California listdeterminations, the applicability of theCalifornia list restrictions to "softhammer" wastes and wastes granted anational capacity variance requiresclarification.

1. "Soft Hammer" Wastes

As stated in the April 8 proposal,many of the First Third wastes are alsosubject to the California listprohibitions. Once treatment standardsbecome effective for such First Thirdwastes, the California list prohibitionsare superseded. However, since notreatment standards will have beenpromulgated for "soft hammer" wastes(i.e., no waste-specific determinationswill have been made for these wastes),such wastes will remain subject to the

California list prohibitions andtreatment standards.

Because EPA does not believe thatCongress intended for the statutoryCalifornia list prohibitions to act as ashield from requirements promulgatedunder RCRA section 3004(g)(6), the "softhammer" requirements will also apply.This includes the requirement that whensuch wastes (or treatment residues) aredisposed in a landfill or surfaceimpoundment only those landfill andsurface impoundment units that complywith the minimum technologicalrequirements of 3004(o) may be used. Inother words, treatment to comply withthe California list prohibitions does notnecessarily satisfy the "soft hammer"requirements of 40 CFR 268.8 and, infact, the California list prohibitionsrepresent the minimum treatmentrequired for such "soft hammer" wastesprior to land disposal-since suchwastes are prohibited from landdisposal at the statutory levels.

The Agency does, however, make adistinction between wastes which aresubject to the statutory prohibitions ofRCRA section 3004(d) (e.g., the metalsand free cyanides) and wastes whichare prohibited under 40 CFR 268.32 andfor which EPA has promulgatedtreatment standards under Part 268Subpart D (e.g., the liquid hazardouswastes containing halogenated organiccompounds (HOCs) in concentrationsgreater than or equal to 1000 mg/l). Forwastes which are subject to treatmentstandards (rather than the statutoryprohibitions of 3004(d), or thecodification of the statutory levels, suchas dilute HOC wastewaters), EPA hasmade a determination regarding the besttreatment for such wastes. The Agencybelieves that this determination (andsubsequent treatment standard), eventhough it is not necessarily a wastespecific determination, is moreprotective than the treatmentrequirement under the "soft hammer"provision of § 268.8. Conversely, forwastes which are subject to thestatutory prohibitions of 3004(d), orwhich are subject to the statutory levelscodified in 40 CFR 268.32, EPA has notmade a determination regarding the besttreatment for such wastes, andtherefore, the waste managementrequirements under the "soft hammer"provision of § 268.8 may be moreprotective.

Therefore, where "soft hammer"wastes are subject to an applicableCalifornia list treatment standard underPart 268 Subpart D (i.e., the treatmentstandard is currently in effect), the "softhammer" provisions of § 268.8 do notapply. Likewise, where "soft hammer"

wastes are not subject to an Agency-established California list treatmentstandard under Subpart D (or thetreatment standard is not yet effective)the "soft hammer" provisions of § 268.8are applicable, with the minimumacceptable treatment for such wastesbeing treatment to comply with thestatutory prohibitions under RCRAsection 3004(d), or the codified statutorylevels under § 268.32. Because the "softhammer" provisions are only applicableto wastes that are disposed in landfillsor surface impoundments, "softhammer" wastes disposed by othermethods clearly must comply with theCalifornia list prohibitions (which applyto all forms of disposal). This approachis consistent with the Agency's intentthat where more than one regulatoryrequirement applies, the more stringentrequirement governs.

EPA is providing the following list ofP- and U-list "soft hammer" wasteswhich are potentially subject to theCalifornia list HOC treatment standardon November 8, 1988 (see section III.H.of this preamble for a discussion of therescission of the previously grantednational variance for HOCs) for thebenefit of the regulated community. EPAnotes that such wastes have thepotential to be subject to the Californialist HOC treatment standards,depending upon the concentration levelsof Part 268 Appendix III halogenatedorganics (52 FR 25791). After November8, 1988, such wastes will not beconsidered "soft hammer" wastes(because they will have an applicabletreatment standard) and will not besubject to the prohibitions in § 268.33(f)or the certification requirements of§ 268.8. The wastes must be treated inaccordance with § 268.32 until EPApromulgates more waste-specifictreatment standards.

"Soft Hammer" Wastes PotentiallySubject to the California List HOCTreatment Standard

K017-Heavy ends (still bottoms) fromthe purification column in theproduction of epichlorohydrin

K021-Aqueous spent antimony catalystwaste from fluoromethanesproduction

K073-Chlorinated hydrocarbon wastefrom the purification step of thediaphragm cell process usinggraphite anodes in chlorineproduction

K085-Distillation of fractionationcolumn bottoms from the productionof chlorobenzenes

P004-AldrinPQ16--Bis-(chloromethyl) etherP036-Dichlorophenylarsine




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P037-DieldrinP050-EndosulfanF058-Fluoracetic acid, sodium saltP059-HeptachlorP123-ToxapheneU029--Methyl bromideU036--Chlordane, technicalU037-ChlorobenzeneU041-n-Chloro-2,3-epoxypropaneU043-Vinyl chlorideU044-ChloroformU046-Chloromethyl methyl etherU081-DDTU066-1,2-Dibromo-3-chloropropaneU067-Ethylene dibromideU074-1,4-Dichloro-2-buteneU077-Ethane, 1,2-dichloro-U078-1,1-DichloroethyleneU129-LindaneU130-HexachlorocyclopentadieneU158--4,4-Methylene-bis-(2-

chloroaniline)U185-PentachloronitrobenzeneU192-PronamideU209--1,1,2,2-TetrachloroethaneU210-TetrachloroethyleneU211-Carbon tetrachlorideU226-MethylchloroformU227-1,1,2-TrichloroethaneU228--TrichloroethyleneU237-Uracil mustard

The following examples illustrate the.principles discussed above regardingoverlap of California list and "softhammer" wastes:

1. Generator A generates a corrosivewaste which is also a commercialchemical product listed in § 268.10 (i.e.,a First Third wastel. EPA has notpromulgated a treatment standard forthis waste.

Generator A cannot dispose of thewaste until it is treated so that it is nolonger corrosive (or liquid) (see 40 CFR268.32(a)(1), codifying the statutoryprohibition level). The waste also issubject to the "soft hammer" provisions,so that further treatment may berequired if the waste is destined for landdisposal in an impoundment or landfill,and such units must comply with theminimum technological requirements of3004(o).

2. Generator B generates a First Thirdwaste for which no treatment standardhas been promulgated that also containsgreater than 1000 ppm HOCs, and that isnot a wastewater.

In this case, the waste must be treatedby the method specified for HOCs in§ 268.42. Residues from such treatmentwould not be subject to the "softhammer" provisions.

3. Generator C generates a First Thirdwaste for which there is no treatmentstandard. He mixes this waste with aCalifornia list HOC waste that is subjectto the treatment method specified in§ 268.42.

The mixed waste must be treated bythe method specified in § 268.42.Residues from such treatment remainsubject to the "soft hammer" provisions(since one cannot automatically renderthe "soft hammer" provisionsinapplicable by mixing a "soft hammer"waste with a waste for which atreatment standard is applicable; toallow this would create acounterproductive incentive. Moreover,the "soft hammer" portion of the mixturestill has not met an applicable treatmentstandard.) However, if the "softhammer'" waste contains organictoxicants, the HOC treatment methodundoubtedly constitutes "treatment" forthe purposes of the "soft hammer"waste (although further treatment of ashfor inorganic constituents may beneeded, if practically available).

EPA is aware that the interpretivereading provided in this example meansthat all residues from treating mixturesof wastes subject to treatment standardsand "soft hammer" wastes would haveto be disposed in surface impoundmentsand landfills satisfying minimumtechnology requirements. There could becases where it is technically desirable tocommingle "soft hammer" wastes withprohibited wastes subject to a treatmentstandard. If a person desired to disposeof the residues in a non-minimumtechnology unit, however, he could onlydo so by segregating the "soft hammer"wastes for separate treatment. TheAgency is not certain how often thissituation might arise. Should it turn outto pose significant practical problems,EPA would consider redesignating suchtreatment residues as Third wastesprovided all applicable treatmentstandards are satisfied and providedthat the mode of treatment also isappropriate for the "soft hammer"waste.

2. Wastes Granted a National VarianceIn the April 8 proposal, EPA solicited

comment on its approach to theapplicability of the California listprohibitions to First Third wastes forwhich treatment standards arepromulgated, but which also receive anational variance due to insufficienttreatment capacity. In setting thetreatment standard, the Agency ismaking a more waste-specifiadetermination (than the California listprohibitions); however, thisdetermination is not effective until thevariance ends. EPA proposed anapproach wheru such First Third wasteswould remrain subject to the Californialist prohibition-, during the period of thenational variance.

For example, assume that a liquidmetal-containing First Third waste has

been granted a national 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 listprohib,'tiona that would otherwise beapplicable. The Agency's proposedapproach would require that, becausecapacity exists to treat the "Californialist" waste to allow for land disposal,the California list prohibitions still applyand the "First Third" waste would berequired to comply with the Californialist prohibitions. The First Thirdtreatment standard would then becomeapplicable when the national varianceexpires.

EPA received no comments presentinga valid argument for not promulgatingthis approach, and thus, the Agency isfinalizing the proposed approach. Thisapproach is also consistent with theAgency's intent that where more thanone regulatory requirement applies, themore stringent requirement governs.

F. Petitions To Allow Land Disposal ofProhibited Wastes

Under section 3004 (d), (e), and (f) ofRCRA, owners and operators of landdisposal units and deep injection wellsmay petition the Administrator for avariance from the prohibition on landdisposal of untreated hazardous waste.To be considered for such a variance,the petitioner must demonstrate "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."

On November 7,1986 EPApromulgated regulations (51 FR 405721that provide procedures for submittal ofpetitions to, allow land disposal of wasteprohibited under Subpart C of Part 26a.The regulation (40 CFR 268.6) includesinformation that must be provided in a"no migration" demonstration, thecriteria the demonstration must meet,and the Agency's review and approvalprocedures.

Today's final rule creates additionalrequirements at 40 CFR 268.6 forpetitioners seeking to demonstrate "nomigration" for land disposal units byadding new procedural andinformational requirements, effective onthe date of promulgation, to thosealready codified at 40 CFR 268.6. (Note:The Agency also has proposedsubstantive rules to Lmplement the landdisposal restrictions for waste disposedin deep injection wells (52 FR 32446,August 27, 19871. The reader should referto this for a complete discussion of howthe Agency intends to apply the "no




migration" standards to deep injectionwells.) The additional requirements forland disposal units that EPA proposed(53 FR 11771) involve the followingfactors:

1. Compliance with other applicablelaws;

2. Monitoring plans for land disposalunits;

3. Changes in operating conditionsfrom the ones described in the varianceapplication; and

4. Detection of migration of hazardousconstituents.

For today's final rule, theserequirements remain largely unchangedfrom the proposal. The Agency receiveda number of comments regarding theadditional requirements for "nomigration" demonstrations promulgatedin today's rule, as discussed below.1. Other Applicable Federal, State, andLocal Laws

Commenters both supported andopposed a provision that would requirepetitioners to include informationdemonstrating that units for which theyseek a "no migration" variance complywith other applicable Federal, State, andlocal laws. Those objecting to thisprovision did so implicitly, by opposingany additional burdens or requirementson petitioners desiring to demonstrate"no migration" and receive a variance.

As EPA stated at proposal, thisrequirement is needed to revealenvironmentally sensitive areas andendangered species which must beprotected. Since all subtitle C facilitiesobviously must comply with allapplicable laws, the Agency is notimposing any substantive burden, andindicating which other laws apply in the"no migration" petition serves the usefulfunction indicated above and so justifiesany incremental administrative burden.

2. Monitoring Plans

a. Requirement for monitoring mediaof concern to verify compliance with"no migration" demonstration. EPAproposed that petitioners monitor theirunits (unless monitoring is technicallyimpractical or infeasible) to determine ifthe "no migration" standard has beensatisfied. Commenters both supportedand opposed different aspects of thisprovision. The Agency continues tobelieve its proposal to be simplecommon sense. Without continuedmonitoring of a unit to verify thedemonstration that there will be nomigration for as long as the wasteremeins hazardous, there is no way toconfirm that the "no migration"standard is being met. Thus, EPA isrequiring monitorirg of the eppropriatemedia at the unit boundary. Since a "no

migration" unit is to prevent migrationfor as long as the waste remainshazardous, monitoring in theory couldlast in perpetuity. EPA believes as apractical matter that monitoring until theend of the post-closure care period in 40CFR 264.117(a)(2) {i) and (ii) (or until thewastes are removed from the unit)should suffice. To preserve flexibility,however, the Administrator may specifyan alternate monitoring period on a sitespecific basis.

Other commenters emphasized thatmonitoring should not be required in ageneric fashion that would causeunnecessary monitoring at some units,with no site-specific flexibility. TheAgency agrees. Petitioners shouldinclude information that clearlydemonstrates why monitoring of anymedium would be unnecessary.

Commenters also suggested thatwhere Subpart F ground watermonitoring already exists, additionalground water monitoring should not benecessary. EPA disagrees. Subprzrt Fground water monitoring is notmeasured at (or as near as possible to)the unit boundary, and so will not detectmigration at the earliest practicabletime, and therefore will not be sufficientfor the purposes of "no migration"verification. The Agency believes thatmonitoring immediately at, or as near aspossible to, the unit boundary must beperformed to assure that there "will beno migration from the disposal unit."

b. Exclusion from "no migration"where monitoring is "technicallyinfeasible or impractical". EPAproposed that monitoring would not berequired for one or more media whereowners or operators demonstrate thatmonitoring is technically infeasible orimpracticable. Most comments receivedopposed this provision. Commentersbelieved that monitoring should bemandatory, and that no infeasibilityexclusion exists under Part 264monitoring requirements. Somecommenters argued that if monitoringcannot be performed to verify "nomigration", a variance should not begranted, because a demonstrationcannot be made with a "reasonabledegree of certainty" if monitoring isinfeasible. Some commonters felt thatpredicting "no migration" based onmodeling cannot replace the use ofmonitoring data to verify that migrationis not occurring.

The Agency agrees in principle that, inmost cases, monitoring of surfacedisposal units is required to verify a "nomigration" demonstration and thatmodeling alone will not be sufficient forsuch units. The Agency recognizes,however, that monitoring imradiatc';y atthe unit boundary sometimes will be

difficult in certain locations or underunusual physical conditions at a site. Inthese cases, EPA would requiremonitoring (or modified monitoring) tobe conducted as near as possible to theunit boundary without compromising theintegrity of the unit.

3. Changes From Conditions Describedin the Variance Application

This provision requires owners oroperators to report to the Administratorany changes or planned changes inconditions at the unit and/or theenvironment around the unit that mayaffect conditions upon which thepetition was approved. Most commentsreceived concerning this provisionsupported minimizing reportingrequirements for those cases where anowner or operator plans or observeschanges to a "no migration" unit.Commenters favored immediatereporting only of those changes to thevariance that are significant and affectthe potential for migration of hazardousconstituents from the unit. EPA agreesthat minor and seasonal changes inparameters such as pH, conductivity.salinity, etc. do not warrant a report tothe Agency. However, the Agencybelieves that where changes are plannedor occur that would significantly departfrom those conditions described in thevariance and that would affect potentialmigration of hazardous constituents, theowner or operator should report them. Inparticular, proposed changes in thewaste stream received, operatingpractices, or unit design andconstruction must be reported. Inaddition, unusual and significantchanges in the environment, such as thewater table or surface water flow,warrant reporting.

4. Detection of Hazardous ConstituentMigration

This provision remains essentiallyunchanged from the proposal. It requiresthat if the owner or ope:ator determinesthere is migration of huzardousconstituents fron thae unt, he rnustimmediately GU,pend rccoipt ofprohibited waste and notify EPA within10 days. The Agency is required todetermine the appropriate action to betaken within 60 days fDom notificatfn.

Certain commenters indicated that toavoid false positives, additionalsampling to verify a release should beallowed before making a determinationthat migration has occurred. 'i he Agencyagrees. While some commentercobjected that action should be takenimmediately upon detection of a release,EPA believes that verification within the10-day time period is reasonable. The




31190 Federal Register I Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regulationsproposed 10-day notification periodshould provide ample time for the owneror operator to perform additionalsampling to verify that wasteconstituent migration from a unit hasoccurred. Therefore, the Agency hasdecided to retain a 10-day notificationperiod.

Commenters also objected to theproposed 60-day period, in which theAgency determines whether the owneror operator of a unit can continue toreceive prohibited wastes and whetherthe "no migration" variance is to berevoked, as being too lengthy. EPAdisagrees and believes that the 60-dayperiod is needed to determine whetherthe termination of waste acceptance andthe revocation of the "no migration"variance is appropriate. Furthermore,the 60-day time period is the maximumtime for the Agency to decide; undercircumstances that the Agencydetermines warrant a faster response, itwill do so.

Some commenters also stated thatwhere the release is temporary, or onceit has been corrected, waste acceptanceshould be resumed. EPA disagrees. Weinstead concur with commentsindicating that once a verified releasehas occurred at levels that wouldconstitute migration, the "no migration"demonstration will have failed, and theunit will have violated the terms of the"no migration" variance. At this point,the "no migration" variance would berevoked for that unit. (Corrective actionmight also be required pursuant tosection 3004(u) or 3008(h).)

G. Approach to Comparative RiskAssessment

1. Proposed Use of Risk Analyses

Within the regulatory framework forimplementing the land disposalrestrictions, the Agency has in the pastconsidered certain criteria in thedetermination of "available" treatmenttechnologies. Among the criteriaformerly considered was whetherapplication of a treatment technologyposes greater risks to human health andthe environment than those posed bydirect land disposal of the waste. See 51FR 40592-40593 (November 7, 1986).

The previous framework fordetermining Best DemonstratedAvailable Technologies employed amethodology that evaluated theanalytical results of the comparativerisk analyses to identify whether atreatment alternative was "available" toset 3004(m) treatment standards.Because of the strong statutorypresumption against land disposal,particularly RCRA sections 1002(b)(7)and 1003(a)(6), the analysis required that

a treatment technology must be clearlymore risky than land disposal (beyondthe level of uncertainty in the model)before it could be designated asunavailable. Although the Agencyconducted comparative riskassessments in the development ofregulations prohibiting land disposal ofcertain spent solvent and dioxin-containing hazardous wastes (November7, 1986 final rule) and California listwastes (July 8, 1987 final rule), use of theanalyses did not affect thedetermination as to whether a specifictreatment technology was available.

In both proposals on First Thirdwastes (see 53 FR 11774, April 8, 1988and 53 FR 17608, May 17, 1988), it wasexplained that the Agency had decidednot to utilize the existing comparativerisk assessment approach for thisrulemaking and was reconsidering itsfuture application in the determinationof "available" treatment technologies.One of the primary concerns addressedin the proposals related to cases wherethe land disposal practice is found to beless risky than any of the treatmentalternatives. In such a situation, theanalysis would result in a determinationthat no treatment technologies are"available" for the purpose of settingtreatment standards. Because landdisposal is prohibited by the statute inmany cases, this determination wouldmean that a generator could not treatand land dispose of such wastes, eventhough the treatment technologies inquestion may be in compliance withother regulatory standards that aredeemed protective of human health andthe environment and may providesubstantial treatment.

In the April 8, 1988 and May 17, 1988proposals, the Agency solicitedcomment on a risk analysis approachthat would distinguish between theoverall degree of risks posed byalternative treatment technologies.Under this proposed approach, the netrisk posed by alternative practiceswould be considered in theidentification of "best" treatmenttechnologies.

2. Agency Response to Comments

A number of commenters submittedremarks pertaining to the utilization ofsome form of risk analysis process.Several of these commenters specificallyaddressed the proposed approach tocomparative risk assessment, whilemost of the others maderecommendations to EPA on riskcomparisons between alternativetreatment technologies.

Those who commented on theproposed approach, generally agreedthat the comparative risk assessment

should be modified to account for theanomalous results that could occur usingthe existing method. One commentersupported the Agency's decision inwhich the risks posed by direct landdisposal and alternative treatmenttechnologies would no longer becompared. This commenter asserted thatEPA does not have the authority underRCRA to conduct such a comparison asa basis for establishing BDAT. Othercommenters continued to support anapproach that weighs the risks oftreatment technologies against the risksof disposal of untreated wastes in theconsideration of "available" treatments.One commenter argued that the existingcomparative risk approach should bemodified rather than discarded becauseit serves as a valuable tool where landdisposal is less risky than sometreatment alternatives but more riskythan others. Another commenter statedthat Congress could not have intendedthe EPA to choose a treatment methodthat presents more risks than landdisposal.

As indicated in the November 7, 1986final rule (see 51 FR 40593), EPAinterprets section 3004(m) as directingthe establishment of treatmentstandards which minimize the threat tothe "environment" as applying to allmedia (i.e., air, land, and water).Because there is no language indicatingthat this term does not include allmedia, EPA does not believe that thesection 3004(m) standard can be read topreclude comparative risk analyses.However, the development of 3004(m)standards, which substantially diminishtoxicity or reduce the likelihood ofmigration of hazardous constituents,specifically apply to "levels or methodsof treatment", and are not contingentupon a risk comparison of treatments toland disposal. Upon furtherconsideration, the Agency believes thatthe existing risk analysis approach doesnot begin with a comparison of equallyviable options since land disposal ofuntreated wastes is not a viablealternative management practice underRCRA (see also RCRA sections1002(b)(7) and 1003(a)(6)). In view of thispoint and the concern noted earlier, theAgency has concluded that use of therisk analysis method previouslyemployed provides minimal benefit as adecision tool. Thus, the Agency haschosen not to utilize the existingcomparative risk assessment approachin developing this final rulemaking.

The majority of the commenters whoaddressed risk assessments urged theAgency to compare risks betweenalternative treatment technologies.Several commenters asserted that the




Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rles and Regulations *31191

methodology for selecting BDAT shouldassess the achievement of alternativetreatment technologies in reducing therelease of hazardous constituents toenvironmental media. Othercommenters urged the Agency tocomplete comparative risk assessmentsbetween specific technologies and theproposed BDAT with respect to onlycertain hazardous waste codes. TheAgency agrees that comparative riskanalyses between applicabletechnologies would likely provide usefulinformation for identifying BDAT.

3. Future Use of Comparative RiskAssessment

In the proposed rulemakings (53 FR11774, April 8, 1988; 53 FR 17606, May 17,1988), EPA indicated that risk analysesmay be conducted 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. Inlight of the commenters' support, EPA isexamining the feasibility ofimplementing such an approach underfuture land disposal restrictiondeterminations. However, as a result ofthe time constraints of the statutoryschedule, EPA is unable to develop andutilize such an approach for the wastecodes addressed by today's finalrulemaking. To the extent possible,additional details of an approach forcomparing risks between alternativetechnologies will be included as part ofa proposed rulemaking on land disposalprohibitions for "Second Third" wastes.

H. Determination of AlternativeCapacity and Effective Dates for FirstThird Wastes, FOO1-F0O5 SpentSolvents, California List HalogenatedOrganic Compounds, and ContaminatedSoil and Debris

As explained in the May 17, 1988proposed rule, EPA developed a newdata base for capacity analyses,comprised of information fromresponses to the National Survey ofHazardous Waste Treatment, Storage,Disposal and Recycling Facilities (theTSDR Survey). EPA conducted theTSDR Survey during 1987 and early 1988to obtain comprehensive data onhazardous waste management capacityand on volumes of hazardous wastebeing land disposed. The TSDR Surveywas sent to all RCRA permitted orRCRA interim status facilities that haveor plan to have treatment, disposal orrecycling capabilities. The TSDR Surveywas also sent to a statistical sample offacilities that have only storage. This

new data base is the primary source ofdata for evaluation of capacity for thisrule, with supplemental data used asneeded. A complete description of theTSDR Survey data set and othersupplemental data will be found in theBackground Document for First ThirdWastes to Support 40 CFR Part 268 LandDisposal Restrictions First Third WasteVolume, Characteristics and AvailableTreatment Capacity, referred tohereafter as the "Capacity BackgroundDocument".

On November 8, 1988 certain capacityvariances promulgated in the Solventsand Dioxins final rule (51 FR 40572)expire and the wastes that had beencovered by the extended effective datewill be subject to the land disposalrestrictions treatment standards. Also,as explained in section III. H. 4., theAgency is rescinding certain capacityvariances promulgated in the Californialist final rule (52 FR 25760). Severalcommenters expressed concern that theincrease in wastes requiring treatmentcapacity because of varianceexpirations and rescissions were notincluded in the capacity analyses for theproposed rule. The commenters arguedthat the volumes of these wastes reducethe capacity available for treatment ofFirst Third wastes. However, thecommenters were incorrect in thisassertion; the volumes of wastes thatwere subject to capacity variances thatare expiring or are being rescinded wereincluded in the capacity analyses in theMay 17 proposal. The capacity availablefor treating First Third wastes presentedin the May 17 proposal, and in today'sfinal rule, reflects only the amount ofavailable capacity remaining afteraccounting for the treatment of wastesrestricted from land disposal under theSolvents and Dioxins and the Californialist final rules.

1. Total Quantity of Land Disposed FirstThird Wastes

The capacity analyses for the FirstThird wastes for which EPA ispromulgating treatment standards wereperformed using the new TSDR Surveydata. EPA estimated the total quantitiesof First Third wastes that are landdisposed annually based on the resultsof the TSDR Survey. The total wastequantities and the methods by which thewastes are stored, treated, and disposedare presented in Table I below. Onemethod of land disposal, undergroundinjection, is not included in the analyses.Underground injection has beenaddressed in separate rulemakings.Other methods of land disposal that areaffected by today's rule, such as

utilization of salt dome and salt bedformations and underground mines andcaves, are not addressed in the capacityanalyses because of insufficient data.

About 71 million gallons of First Thirdwastes are disposed of in surfaceimpoundments annually. Ultimately, allof this waste will require alternativetreatment capacity. Approximately 6million gallons of First Third wastes arestored in surface impoundmentsannually. Stored wastes are eventuallytreated, recycled, or permanentlydisposed in other units. To avoid doublecounting, the volumes of wastesreported as being stored in surfaceimpoundments were not included in theestimates of volumes requiringalternative treatment capacity.However, these wastes will eventuallyrequire alternative storage capacitybecause of the restrictions on placementof wastes into surface impoundments.

About 328 million gallons of FirstThird wastes are treated annually insurface impoundments that do not meetminimum technology requirements, orare residuals that have been removedfrom those surface impoundments thatdo meet minimum technologyrequirements. An additional 49 milliongallons are stored in waste piles, 29million gallons are treated in wastepiles, and 378 million gallons aredisposed in landfills and land treatmentunits.

TABLE 1.-TOTAL VOLUME OF LANDDISPOSED FIRST THIRD WASTES

[Million gallons/year]

Storage:W aste piles ......................................... . 49Surface impoundments ........................ 6

Treatment:W aste piles .......................................... 29Surface impoundments ........................ 328

Disposal:Landfills .................................................. 302Land treatment ..................................... 76Surface impoundments ...................... . 71

T otal ................................................... 86 1

Table 2 and Table 3 subdivide thetotal amount of land disposed FirstThird wastes into two categories:wastes for which treatment standardsare being promulgated today, andwastes for which treatment standardsare not being promulgated but which aresubject to the "soft hammer"requirements. Wastes for whichstandards are being promulgated todayare presented in Table 2 below.




TABLE 2.-VOLUME OF LAND DISPOSEDFIRST THIRD WASTES FOR WHICH

STANDARDS ARE BEING PROMULGATED

[Million gallons/year]

Storage:W aste piles ............................................Surface im poundm ents ........................

Treatment:W aste piles ............................................Surface impoundm ents ........................

Disposal:Landfills ..................................................Land treatm ent ......................................Surface im poundm ents ........................

Total ...................................................

2747670

812

Table 3 presents the waste quantitiesand the method of land disposal for theFirst Third wastes for which treatmentstandards are not being promulgated,and which are subject to the "softhammer" provisions. This categoryincludes all of the First Third P and Uwastes, as well as the followingwastecodes: F007, F008, F009, F019,K011, K013, K014, K017, K031, K035,K046(partial), K069(partial), K073, K084,K085, K086, KIOI (partial), K102 (partial),K106, and wastewaters from F006, K004,K008, K021, K022, K036, K046, K060,K061, K069 and K083.

Table 3.-VOLUME OF LAND DISPOSEDFIRST THIRD WASTES FOR WHICHSTANDARDS ARE NOT BEING PROMUL-GATED

[Million gallons/year)

Storage:W aste piles ............................................Surface im poundments .......................

Treatment:W aste piles ............................................Surface im poundm ents ........................

Disposal:Landfills .................................................Land treatm ent ......................................Surface im poundm ents ........................

Total ...................................................

28<1

1

2. Required Alternative Capacity

The Agency assessed therequirements for alternative treatmentcapacity resulting from the promulgationof today's rule. EPA first characterizedthe volumes of First Third wastes forwhich treatment standards are beingpromulgated, since these wastes requirealternative treatment. Waste streamswere characterized on the basis of landdisposal method, waste code, andphysical/chemical form. Using thisinformation, the Agency determinedwhich treatment technologies are

applicable to the waste volumes andplaced the wastes into treatabilitygroups. The volumes of alternativetreatment capacity that would berequired when owners or operatorscomply with the land disposalrestrictions being promulgated was thendetermined. Based on this analysis, theAgency estimates that today's rule couldaffect about 812 million gallons of FirstThird wastes that are land disposedannually. Of this total, about 777 milliongallons will require alternativetreatment capacity, the remainder beingstored. As explained elsewhere in thispreamble, EPA is promulgatingtreatment standards expressed asconcentration limits based on theperformance of the Best DemonstratedAvailable Technology (BDAT). It is nota requirement that BDAT be used toachieve the concentration levels, butthese technologies, as described insection III. A., were generally used asthe basis for determining availablecapacity.

Several commenters expressedconcern that the capacity required totreat "soft hammer" wastes was notconsidered in the capacity analyses, andbecause of this omission, the amount ofavailable capacity would be less thanwas presented in the May 17 proposedrule. Since "soft hammer" wastes haveno BDAT treatment standards, there isnothing upon which to base a capacityanalysis. The Agency evaluated thecharacteristics and volumes of thesewastes, and found that because of theirphysical form and comparatively smallvolume, they will not have a significantimpact on available capacity. (See Table3.) In addition, the "soft hammer"provisions require that wastes betreated where treatment is practicallyavailable (assuming such wastes aredisposed in landfills or surfaceimpoundments). If treatment is foundnot to be practically available, thewastes may be land disposed afterappropriate certifications as toavailability and practicality of treatmentare made. In effect, the generators of"soft hammer" wastes will do waste-specific capacity analyses. If treatmentcapacity is in particularly short supply,generators can be expected to certify tothe lack of practically availabletreatment and dispose with limited or notreatment. Thus, these wastes shouldnot displace treatment capacity for otherrestricted wastes.

Also, several commenters said thatthe capacity for wastes generated atCERCLA response actions and RCRAcorrective actions should be included inthe analyses, since the number ofresponse actions and corrective actions

will be increasing and they couldrequire much of the available capacityto treat large volumes of wastes. TheAgency has determined that the greatestlikelihood for a conflict of this type is forthose wastes where BDAT is identifiedas solids/sludge incineration. TheAgency has evaluated the potentialdemand for solids incineration capacityfrom CERCLA response actions andRCRA corrective actions. Although onlygross estimates are available at thistime, it is clear that this addedincrement of wastes would be in excessof the solids incineration capacityavailable. Therefore, a two-yearnational capacity variance has beengranted to soil and debris from RCRAcorrective actions and CERCLAresponse actions contaminated withwastes for which BDAT standards arebased on incineration (see section III. H.5. b.). Other types of treatment capacity(e.g., stabilization, wastewatertreatment) appear to be available inamounts sufficient to accommodateother RCRA corrective action andCERCLA response action wastes. EPAplans to do a more quantitativeaccounting of these wastes for futureland disposal restrictions rules asvolume estimates become more precise.

Several commenters also argued thatthe quantities of wastes requiringalternative capacity are underestimatedbecause they do not include "derivedfrom" wastes. To the extent that"derived from" wastes were describedin the TSDR survey, they are accountedfor in the capacity estimates. However,if "derived from" wastes weremisreported or were not included in theTSDR survey-report, they may beunderestimated. The Agency believesthat most of the potential underreportingof "derived from" wastes was forlandfill leachate. Large, commercialhazardous waste landfills can producesubstantial quantities of leachate which,depending on the types and levels ofcontamination, may require furthertreatment. In response to commentsraising potential capacity problems. fortreatment of leachate, the Agencycontacted several large commercialhazardous waste landfill operators todetermine how they now manageleachate. They indicated that mostleachate is now sent to POTW's, toNPDES discharge or to undergroundinjection. Since all of these practices cancontinue to be used, there does notappear to be a capacity constraint ondisposal of leachate.

Commenters also raised questionsabout the ability to treat leachatederived from multiple waste streams tothe appropriate treatment standards.




The Agency examined data on leachatesubmitted by large, commercialhazardous waste facilities and foundthat levels of hazardous constituentswere generally well below those seen inindustrial wastes. This indicates thatwastewater treatment processes shouldprovide sufficient treatment to allowleachate to meet the applicablestandards. Since available wastewatertreatment capacity far exceeds thedemand, the Agency has concluded thatthere is no capacity constraint ontreatment of leachate. (See section lII. A.4. for more discussions of theapplicability of treatment standards toleachate.)

The volumes of First Third wastesthat require alternative treatment/recycling capacity are presented inTable 4. This table includes only thequantities of wastes that requirealternative commercial capacity; thevolumes given do not include wastes-that can be treated on-site by thegenerator. Several commenters arguedthat the Agency overestimated theamount of on-site capacity since there isno guarantee that on-site treatment willachieve the regulatory treatmentstandards. However, the Agencyincluded only BDAT treatment in itsassessment of both off site and on-sitecapacity. EPA develops BDAT such thatany well-designed and well-operatedtreatment process should be capable ofcomplying with the standards.

TABLE 4.-REQUIRED ALTERNATIVE COM-

MERCIAL TREATMENT/RECYCLING CA-

PACITY FOR FIRST THIRD WASTES

[million gallons/year]

Waste code 1RequiredW a s t e c o d c a p a c i t y

F006.......................................... ..K001 ............................. .......K021 .............................................. ...K022 ...........................................................K044 ...........................................................K 045 ...........................................................K046 ...........................................................K047 ..........................................................K060 ...........................................................K 083 ..........................................................K086 ..........................................................K087 ...........................................................K099 ..........................................................K101/102 .................................................K004 .........................K008 ..........................................................K015 ...........................................................K016 ...........................................................K018 ........................K019 ......................K020 ..............................K024 .........................................................K030 ....................................................K036 ...........................................................K037 ......................................................K0.48 ...........................................................K049 . ......................................................

129.03.7

'0.00.10.00.01.60.00.00.10.21.40.00.10.00.00.00.30.00.1

<0.10.2

<0.10.0

<0.137.132.6

TABLE 4.-REQUIRED ALTERNATIVE COM-MERCIAL TREATMENT/RECYCLING CA-PACITY FOR FIRST THIRD WASTES-Continued

(million gallons/year]

Waste code Requiredcapacity

1<050 ......................................................... 11.8K051 .......................................................... 78.1K052 .......................................................... 12.5K 061 .......................................................... 8 3.1K062 .......................................................... 40.1K069 ........................................................... 0.0K071 ........................................................... 3.9K 103 ........................................................... 0.1K 104 ........................................................... < 0.1

n See section III. H. 3. i. for a discussion of wastesnot requiring alternative treatment capacity.

3. Capacity Currently Available andEffective Dates

Table 5 below presents the volumes ofFirst Third wastes that requirealternative treatment capacity, arrangedaccording to the technology descriptionof the alternative treatment required.The amount of capacity that is availablein each case is also presented.

It is important to note that some ofthese wastes, because of their actualphysical form, cannot meet treatmentstandards simply by using thetechnology identified as BDAT. Thesewastes -nust be treated through severalsteps, called a treatment train. TheAgency assumed that the residuals insuch cases will be treated usingalternative technologies prior to landdisposal; therefore, the total volumesreported were assigned to appropriatetechnologies.

TABLE 5.-ALTERNATIVE COMMERCIALTREATMENT/RECYCLING CAPACITY FORFIRST THIRD WASTES

[Million Gallons/Year]

Technology Available Required

Incineration:Liquids ................................. 274 < 1Solid/Sludge ....................... 7 '6-160

Solvent Extraction ................. 1 10-154Stabilization ........................... 495 231High Temperature Metals

Recovery ............................. 34 62Wastewater Treatment:

Chromium reduction,chemical precipitation,settling/ filtration ........... 260 40

Carbon adsorption, chro-mium reduction, chem-ical precipitation, set-Iling/filtration .................. 12 1

Sludge Treatment:Acid leaching, chemical

oxidation, sludgedewatering ..................... .0. 4

'Both incineration and solvent extraction are al-ternative technologies for K048-K052. Thus, the al-

ternative capacity requircd for First third wastesranges from 6 to 160 million gallons/year for solid/sludge incineration, and 0 to 154 million gallons/yearfor solvent extraction..

a. Liquid Incineration. Treatmentstandards for K015, K083 and K086wastes are based on liquid incineration.The Agency estimates that about onemillion gallons per year of these wastesrequire liquid incineration treatmentcapacity. Using the new TSDR surveydata, the Agency evaluated commercialcapacity and determined that there isapproximately 274 million gallonsavailable, ample capacity to treat thesewastes. Thus, no capacity variance wasgranted for K015, K083, or K086 wastes.

b. Solid/Sludge Incineration Capacity.Treatment standards for K00I, K016,K018, K019, K020, K022, K024, K030,K037, K087, K101 and K102 wastes arebased on solid/sludge incineration. TheAgency estimated that 6 million gallonsper year of these wastes require solid/sludge incineration capacity. Using thenew TSDR Survey data, the Agencyevaluated commercial incinerationcapacity and determined that there wasabout 7 million gallons of solid/sludgeincineration capacity available. Basedupon this data, the Agency did not granta capacity variance for these wastes.

The Agency received a number ofcomments on the availability ofincineration for K001 wastes.Commenters noted that someincineration facilities refused to takeK001 wastes containing ,

pentachlorophenol, while other facilitieswould accept only "true" K001 wastes,and not wastes which resemble, but arenot, K001. Commenters also noted thatsubstantial volumes of K001 wastes, aswell as some soils contaminated withK001, will be generated when surfaceimpoundments at wood preservingfacilities are closed. Based on thesefactors, some commenters requestedthat a two-year national capacityvariance be granted for K001 wastes.

An industry association submittedcomments which included an informalsurvey conducted by one of its membersof eight solids incineration facilities.According to these comments, three ofthe facilities would accept K001 wastefor incineration without constraints onwhether it was "true" K001 or K001-likewaste. A fourth facility expected toreceive a permit modification prior toAugust which would enable it to takeK001, again without constraints. Twofacilities said they would incinerate"true" K001 wastes. One facility wouldnot accept K001 with pentavhlorophenol,The final facility was not planning tocontinue incineration activities.



319!eea egse o.53.o.5..enedy uut17 98IRls n euain

This information indicates that thereis capacity available to incinerate "true"K001 wastes. The wastes whichresemble, but are not, K001 are notsubject to the treatment standards and,therefore, cannot be considered incapacity determinations. Finally, if aparticular generator cannot find anincineration facility that can or willaccept his waste, he may qualify for acase-by-case extension of the effectivedate (see 40 CFR 268.5).

It is possible that K001 wastesproduced when old surfaceimpoundments are closed could exceedthe available commercial incinerationcapacity, particularly if the incinerationwas scheduled to occur within the nexttwelve months. However, a number offactors could affect the amount of K001generated during closures, particularlyclosure plans which incorporate in situtreatment either as a final solution or asa volume reduction measure prior toremoval of the waste. Also, as notedabove, the generator can apply under§ 268.5 for a case-by-case extension ofthe effective date where specialcircumstances pertain.

Soils and debris contaminated withK001 (and other First Third wastesrequiring incineration) are being granteda two-year national capacity variance(see section III. H. 5.).

Based upon these factors, the Agencywill not grant a capacity variance toK001 wastes.

c. Solvent Extraction or Incineration.Treatment standards for K048-K052wastes are based on solvent extractionfollowed by stabilization of residuals orsludge incineration followed bystabilization of ash. The Agencyestimates that about 154 million gallonsper year of these wastes require eithersolvent extraction or sludge incinerationcapacity as a result of today's final rule.The Agency evaluated commercialcapacity and determined that there isapproximately I million gallons ofsolvent extraction capacity and 7 milliongallons of sludge/solid incinerationcapacity available. (Approximately 6million gallons of sludge/solid capacitywill be needed for K001, K016, K019,K020, K022, K024, K030, K037, K087,K101, and K102 wastes.) Therefore, a 2-year national capacity variance from theeffective date is being granted for thesewastes.

d. Stabilization. Treatment standardsfor F006 and K046 wastes are based onstabilization. In addition, stabilization isrequired for treatment residuals fromother wastes. (As discussed in sectionIII. A. 7., the Agency is setting atreatment standard based onstabilization for non-explosive K046wastes, while allowing the "soft

hammer" to apply to explosive K046wastes.) Because the Agency does nothave data which allows it to determinethe volume of waste associated witheach type of K046, EPA has assumed theentire volume will require stabilization.The Agency estimates that about 148million gallons per year of these wastesrequire stabilization capacity as a resultof the treatment standards promulgatedtoday.

Many commenters questioned thecapacity analysis for F006, arguing thatthe evaluation of available stabilizationcapacity does not guarantee that it iscapable of achieving the treatmentstandard. The standard is based on theperformance of cement and pozzolanic-based stabilization. Although the TSDRSurvey does contain data on otherstabilization methods, only these twotypes of stabilization were included inthe capacity analysis (i.e., only the typesconsidered as BDAT). Furthermore, themethodology for determining BDATincludes factors that account forperformance variability; therefore, theAgency is reasonably sure that thecapacity included in this analysis iscapable of achieving the treatmentstandard. The Agency evaluatedcommercial capacity and determinedthat there is approximately 495 milliongallons of stabilization capacityavailable, more than enough to treatthese wastes. No capacity variance isbeing granted for wastes for whichtreatment standards are based onstabilization.

e. High Temperature MetalsRecovery/Stabilization. The treatmentstandard for K061 waste containing 15%or more total zinc (high zinc K061) isbased on high temperature metalsrecovery. For wastes containing lessthan 15% zinc (low zinc K061) thestandard is based on stabilization.Based on data received fromcommenters, approximately 75% of K061waste contains 15% or more total zinc.Thus, an estimated 62 million gallons ofhigh temperature metals recoverycapacity is required but only 34 milliongallons of capacity is available.Therefore, a two-year national capacityvariance from the high temperaturemetals recovery standard has beengranted to high zinc K061 wastes. Asdiscussed in section III. A. 7., theAgency is setting an interim standardfor high zinc K061 wastes based onstabilization. Consequently the entirevolume of K061 waste will requirestabilization capacity on an interimbasis. Thus, the required stabilizationcapacity is 83 million gallons for K06iplus 148 million gallons for-other wastes,for a total of 231 million gallons.

Using the new TSDR survey, theAgency has determined that there isenough stabilization capacity for K061wastes and other waste codes and,therefore, no capacity variance is beinggranted for the two-year period duringwhich the interim stabilization standardwill be in effect.

f. Wastewater Treatment. Treatmentstandards for K062 waste are based onwastewater treatment (chromiumreduction, chemical precipitation andfiltration). The Agency estimates thatless than 42 million gallons per year ofthis waste require various types ofwastewater treatment as a result of thetreatment standards promulgated today.

Using the new TSDR survey data, theAgency evaluated commercial capacityand determined that there is adequatecapacity available for wastewatertreatment. Therefore, no capacityvariance is being granted for K062.

g. Sludge Treatment. Treatmentstandards for K071 waste are based onsludge treatment (acid leaching,chemical oxidation, and sulfideprecipitation and filtration). The Agencyestimates that about 4 million gallonsper year of this waste requires sludgetreatment as a result of the treatmentstandards promulgated today.

After analyzing the new TSDR Surveydata, the Agency has determined thatthere is not enough treatment capacitycommercially available to treat K071.Therefore, a 2-year national capacityvariance is being granted for K071.

h. Wastes for Which TreatmentStandards are Based on SolventRecovery or Solvent Extraction. Thetreatment standards for K103 and K104wastes are based on solvent recovery.BDAT for K103 is solvent extraction,followed by steam stripping, followedby carbon adsorption, followed bycarbon regeneration. BDAT for K104 issolvent extraction followed by liquidincineration and followed by steamstripping, followed by carbonadsorption, followed by carbonregeneration.

Using the new TSDR Survey data,EPA determined that the only volumesof these wastes that require alternativecommercial capacity are those "derivedfrom" wastes not amenable to solventrecovery or solvent extraction becauseof their physical forms. Therefore, theAgency assumed that the K103 and K104wastes requiring alternative treatmentwill undergo incineration, followed bystabilization of the ash. The Agencybelieves that this treatment can achievethe standard, and the volumes of K103and K104 requiring alternative treatmenthave been included in the incinerationand stabilization totals.





i. Wastes Not Requiring AlternativeCapacity. After reviewing the newTSDR Survey, EPA determined that anumber of First Third wastes do notrequire alternative capacity, eventhough treatment standards are beingpromulgated. These wastes are: K004,K008, K015, K018, K021, K036, K044,K045, K047, K060, K099, and some K069.Each of these is discussed below.

Treatment standards for K044, K045and K047 wastes are based on opendetonation, for which there is nocapacity constraint. The Agencybelieves that when open detonation Isproperly conducted, the residuals are nolonger reactive, nor do they exhibit anyother characteristic. Other treatmentmethods which achieve the same resultsare also permissible. Therefore, K044,K045, and K047 do not requirealternative commercial capacity andfurther analysis is not necessary.

Treatment standards for K099 wasteare based on chlorine oxidation. TheAgency determined that this waste isonly being generated at one facility, andthat the generator is able to treat thewaste on-site. Therefore, no volumeswere reported as requiring alternativecommercial capacity and no furtheranalysis is necessary.

Treatment standards for K015 wasteare based on liquid incineration, andstandards for K018 waste are based onsolid/sludge incineration. Afteranalyzing the new TSDR Survey data,the Agency determined that neither ofthese wastes was reported in the TSDRsurvey as being land disposed.Therefore, no alternative treatmentcapacity is required. It is possible thatall of these wastes are being treated on-site and do not require commercialcapacity. It is also possible that thesewastes are not being land disposed, or ifthey are, they are land disposed by amethod not covered in the TSDR Survey(underground mines) or not included inthe proposed rule (deep well injection).Finally, the wastes may not haverequired alternative capacity in 1986, thereporting period covered by the TSDRSurvey.

Treatment standards for non-calciumsulfate K069 waste are based on totalrecycle, meaning this waste cannot beland disposed. Available informationshows that most K069 wastes currentlybeing generated are being recycled anddo not require alternative capacity. Asdiscussed in section III. A. 7., some K069wastes contain high levels of calciumsulfate. These wastes cannot berecycled. The Agency is notpromulgating a treatment standard forcalcium sulfate containing K069 wastes;these wastes will be subject to the "softhammer" requirements.

The Agency proposed a treatmentstandard of "no land disposal" for K004,K008, K021, K025, K036, K060, K073 andK100 wastes and for wastewaters fromF006, K022, K046, K061, K069, and K106,based on the belief that they are nolonger being generated or are not beingland disposed. Commenters noted thatthese wastes are being generated in theform of landfill leachate even thoughongoing production processes may nolonger produce the wastes. Also, thesewastes may be present in contaminatedground water and, thus, may begenerated during cleanup actions.

Because a "no land disposal"standard could hinder or precludenecessary and desirable collection andtreatment of leachate and contaminatedground water, the Agency has notestablished standards for thewastewater components of the "no landdisposal" wastes. In addition, theAgency is revising the schedule for theprohibition on land disposal andestablishment of treatment standards(40 CFR 268.10) to move leachate from"soft hammer" wastes, contaminatedground water from "soft hammer"wastes, and certain "soft hammer"wastewater residues from treatment tothe Third Third to avoid disruptiveeffects while standards are developed(see section III. C. 3. for furtherdiscussion.

For the non-wastewater forms ofK004, K008, K021, K036, and K060 the"no land disposal" standard is beingpromulgated.

j. Other Comments on CapacityDeterminations. Several commentersfelt that available capacity for treatingwastes in tank systems wasunderestimated because additionalcapacity could be brought on linequickly by vendors or put into service ason-site capacity. For example, onecommenter disagreed with the varianceprovided to K071 waste because theBDAT technologies identified for K071are simple chemical tank treatmentprocesses (acid leaching, chemicaloxidation, and sulfide precipitation),which could be supplied readily byvendors.

The Agency believes that because ofthe time necessary to construct suchtreatment systems and (in some casesto satisfy permitting requirements,additional capacity cannot be broughton-line quickly and should therefore notbe considered when analyzing availabletreatment capacity. In addition, as partof the TSDR Survey, facilities wereasked to report any treatment processesplanned to be operational (consideringconstruction and permit time) byJanuary 1992. Planned capacity reportedin the TSDR Survey, and taken into

consideration in the Agency's capacitydeterminations, did not indicate thatadditional capacity that would changethe capacity determinationspromulgated today would be availablein the near future.

Some commenters believe that theAgency's capacity analysisoverestimated the national capacity toincinerate solids and sludges.Commenters stated that the Agency didnot consider all necessary factors whendetermining solid/sludge incinerationcapacity. Factors cited as notconsidered included material handlingrestrictions, downtime for maintenance,storage restrictions, and siting andpermitting difficulties for futureincineration units. One commenter feltthat the Agency overestimated thevolume of waste requiring solid/sludgeincineration capacity becausepretreatment and volume reductionwere not considered. The samecommenter also felt that the Agencyunderestimated solid/sludge treatmentcapacity because liquid incinerationcapacity could easily be converted forsolid/sludge incineration.

The Agency based its latestincineration capacity determination onthe 1987 TSDR Survey database. Whencompleting the TSDR Survey, thefacilities were asked to considerdowntime for maintenance and otherfactors when reporting the treatmentcapacity for existing and future units.Therefore, such factors should bereflected in the estimates of availablesolid/sludge incineration capacity. Inaddition, the TSDR Surve'y did requestinformation on plans to change the typesof capacity available (e.g., liquid tosolid/sludge incineration and thisinformation is included in the estimates.Therefore, EPA disagrees with both ofthese comments.

Commenters expressed concernbecause the Agency's determinations ofrequired treatment capacity did not takeinto account the volumes of waste thatwill be removed from surfaceimpoundments undergoing clean closure.Therefore, the commenters felt that theAgency underestimated the volume ofwastes requiring alternative treatment.

This issue is discussed earlier in thissection with respect to K001 woodpreserving wastes. Some informationwas provided by commenters on thevolumes of wastes currently in surfaceimpoundments at their facilities;however, for the reasons set out in theearlier discussion of K001, the Agencybelieves that both the timing of closuresand the amount of matrial which willactually require incineration are




uncertain at this time, and thereforecannot be used in the capacity decision.

The new TSDR data have implicationsfor "soft hammer" certifications. A "softhammer" certification for a wasteamenable to treatment by a method forwhich ample capacity exists will becritically examined by EPA and is morelikely to be invalidated. Examples arewastes amenable to liquid injectionincineration or to stabilization.

4. Alternative Capacity and EffectiveDates for Solvent Wastes and CaliforniaList Wastes

Using the new TSDR data, EPAreevaluated waste volumes requiringalternative capacity because of theSolvents final rule (51 FR 40572) and theCalifornia list final rule (52 FR 25760).The new analyses indicated significantchanges in waste management practicesand capacity, notably, significantincreases in incineration capacity.Consequently, some national capacityvariances are no longer necessary.Capacity variances are no longerneeded for Fool-FO05 solventsgenerated by small quantity generators(i.e., generators of 100-1000 kilograms ofhazardous wastes per month), CERCLAresponse actions, and RCRA correctiveactions addressed in §§ 268.30(a) (1) and(2), with the exception of solvent-contaminated soils. Also, capacityvariances are no longer needed forCalifornia list HOCs, with the exceptionof HOC-contaminated soils. BDAT forthese wastes is incineration, and thenew data indicate significant increasesin incineration capacity, assuringadequate capacity for these wastes.

The May 17 notice proposed toterminate these national capacityvariances as of the date of promulgationof the final First Third rule. Based oncomments received, some of which pointout the short comment period on theMay 17 proposal necessitated by thestatutory deadline, the Agency hasdecided to allow the capacity variancesfor certain solvent wastes to expire andto terminate the California list HOCsvariance on November 8, 1988. TheAgency believes that the three-monthdelay will not result in any adverseenvironmental effects and will permitgenerators of California list wastes, forwhich the variance is being terminatedeight months earlier than expected, toarrange for appropriate treatment anddisposal of their wastes, if they have notdone so already.

5. National Variances from the EffectiveDate for Contaminated Soil and Debris

a. Legal Authority. Under RCRAsections 3004 (d)(3) and (e)(3), Congressprovided that the land disposal

restrictions provisions for disposal ofcertain "contaminated soil" and"debris" from CERCLA 104 and 106response actions and from RCRAcorrective actions would not apply until48 months from the enactment ofHSWA. These provisions applyspecifically to soil and debriscontaminated with spent solvents,certain dioxin-containing wastes, andCalifornia list restricted hazardouswastes. November 8, 1988, therefore, isthe applicable effective date establishedunder RCRA sections 3004 (d](3) and(e)(3) for CERCLA and RCRA correctiveaction contaminated soil and debris.Congress provided no such alternativestatutory effective date for CERCLA andRCRA soil and debris contaminatedwith First Third (or Second Third)wastes. Thus, the statutory effectivedate for these wastes is the same as forany other hazardous waste which isincluded in the first one-third of theschedule-August 8, 1988. Nocommenter disagreed with this analysis.(See the May 17, 1988 proposed rule fora more detailed explanation of legalauthority and other aspects of theproposed variance.)

An important factor in setting thislater effective date for soil and debrisfrom cleanup actions was Congress'evident acknowledgment that it wouldtake extra time to develop treatmentcapacity for soils and debriscontaminated with these wastes.Foreseeing this potential shortfall,Congress placed these wastes on analternative schedule approximately thesame as the one for the first group ofwastes prohibited under section 3004(g).Restricted hazardous wastes arenormally prohibited from land disposalas soon as the statutory deadline passes(RCRA section 3004(h)(1)). If, however,there is a lack of adequate alternativeprotective treatment, recovery, ordisposal capacity to treat the wastes,the Agency may set an alternativeeffective date based on the earliest dateon which such adequate capacitybecomes available, not to exceed twoyears (RCRA section 3004(h)(2)).

b. Soil and Debris Capacity Variance.In today's rule, the Agency is granting anational capacity variance for certaincontaminated soils for which BDAT isbased on solids incineration.

A partial estimate of the amount ofsoil requiring solids incineration isshown below. These amounts representthe quantity of soils land disposed atRCRA facilities in 1986. The amount ofsoils generated by CERCLA response orRCRA corrective actions requiring solidsincineration is not currently known.

" Solvent-26 million gal/yr.* Dioxin-none reported in 1986).

* California List HOCs (other thanFirst Third wastes for which treatmentstandards were proposed)-4 milliongal/yr.

a First Third (for which treatmentstandards were proposed)-12 milliongal/yr.

EPA expects that all of the solidsincineration capacity will be utilized asa result of other actions taken today,and therefore that there will be a lack ofcapacity for incineration of soils.

In the May 17, 1988 proposal, theAgency also requested comment on theadvisability of applying the variance todebris contaminated with solvents,certain dioxins or HOCs above 1,000ppm, as well as to debris contaminatedwith First Third wastes. Severalcommenters addressed this issue and allwere in favor of including debris in the2-year national capacity variances. TheAgency agrees and, therefore, debris isincluded in the national variances alongwith contaminated soils generated fromCERCLA response actions and RCRAcorrective actions. Many commentersurged that the variance be broadened toapply to soils contaminated withsolvent, dioxin and California listwastes other than those from CERCLAresponse and RCRA corrective actions.The Agency believes this to beprecluded by the wording of the statute.See the May 17 proposed rule for a moredetailed explanation.

The national capacity varianceapplies to soils and debris contaminatedwith spent F001-F005 solvents and F020-F023 and F026-F028 dioxins which resultfrom a response action taken underCERCLA sections 104 or 106 or a RCRAcorrective action. Soils and debriscontaminated with California list HOCwastes which result from a responseaction taken under CERCLA sections104 or 106 or RCRA corrective actionsare also included in the variance. Suchcontaminated CERCLA and RCRA soilsand debris are covered by the capacityvariance until November 8, 1990--twoyears from the statutory effective dateapplicable to these wastes.

A national capacity variance is alsobeing granted for soils and debriscontaminated with certain First Thirdwastes for which the treatmentstandards are based on incineration;however, it is not limited exclusively tosoils from CERCLA response and RCRAcorrective actions. The variance appliesto soils and debris contaminated withthe following First Third wastes: KOol,K015, K016, K018, K019, K020, K022,K024, K030, K037, K048-K052, K083,K086, K087, K101, K102, K103 and K104.Soils and debris contaminated with thespecified First Third wastes receive a





variance that extends the effective datefor the land disposal restrictions toAugust 8, 1990.

The effective dates for soil and debrisestablished by today's final action havebeen summarized in the following table:

SUMMARY OF FINAL EFFECTIVE DATES

Prohibi-tion

Restricted hazardous waste effectivedate intoday's

final rule

I. Solvent- and dioxin-containing soil anddebris from CERCLA response orRCRA corrective actions ......................... 11-8-90

II. Soil and debris NOT from CERCLAresponse acbons or RCRA correctiveactions contaminated with less than1% total solvents or certain dioxins 11-8-88

Ill. Soil and debris contaminated withCalifornia list HOCs from CERCLA re-sponse actions or RCRA correctiveactions ....................................................... 11 8-90

IV. Soil and debris contaminated withCalifornia list HOCs NOT fromCERCLA response actions or RCRAcorrective actions ..................................... 7-8-89

V. All soil and debris contaminated withFirst Third wastes for which treatmentstandards are based on incineration ...... 8-8-90

The Agency acknowledges thatgranting a national capacity variance forcontaminated soils is a policy choice.That is, EPA could have separated outsome segment of CERCLA and RCRAcorrective action soils for immediateprohibition instead of rescinding thevariance for other HOC and solventwastes requiring solids incineration.EPA did not pursue this course forseveral reasons. First, it would bedifficult, if not impossible, to separateout a discrete segment of contaminatedclean-up soils to fit the availabletreatment capacity. More importantly,the precise amount of CERCLA andRCRA corrective action soils to begenerated over the next 24 months is notcertain due to the unpredictable pace ofclean-up actions, whereas the volume ofother surface disposal wastes requiringsolids incineration capacity is muchbetter quantified. By rescindingvariances for the wastes whose volumeis better quantified, EPA is far morecertain that the existing treatmentcapacity will actually be utilized. Thatis, EPA is not reserving scarce solidsincineration capacity for contaminatedsoils that might never be generated, andis thus structuring these variances tomake certain that scarce solidsincineration capacity will actually beutilized.

With respect to soils contaminatedwith spent solvents, certain dioxins, andHOC wastes, only those that result froma response action taken under section

104 or 106 of CERCLA or a correctiveaction required under RCRA areincluded under this capacity variance.For all other soils contaminated withthese wastes, an application for a case-by-case extension may be submitted ifadequate alternative capacity cannotreasonably be made available by theapplicable effective date.

c. Definition of "Soil" and "Debris".For the purpose of determining whethera contaminated material is subject tothis national variance, some definitionof the terms "soil" and "debris" isneeded. Soil is defined as materials thatare primarily geologic in origin such assilt, loam, or clay, and that areindigenous to the natural geologicalenvironment. In certain cases soils willbe mixed with liquids, sludges or debris.The Agency solicited comment onappropriate methods for determiningwhether such mixtures should beconsidered a soil waste.

Several commenters addressed thisissue; they generally favored theinclusion of such mixtures in thecapacity variance. However, they didnot offer practical methods for making agenerally applicable determination onwhat these mixtures should be.Therefore, the Agency will make suchdeterminations on a case-by-case basis.As proposed, however, soils do notinclude wastes withdrawn from activehazardous waste management units,such as impoundment dredgings. Suchwastes are sludges, not soils, and EPAhas evaluated the volume of thesesludges in its capacity estimates (basedon TSDR survey reports), anddetermined that sufficient capacityexists for these wastes.

The variance obviously does notapply to materials produced as a resultof the deliberate addition of soil or dirtto a restricted hazardous waste. Such apractice is forbidden by the provisionsof the dilution prohibition (40 CFR268.3).

For the purpose of determiningwhether a contaminated material issubject to this national variance, debrisis defined as materials that are primarilynon-geologic in origin such as grass,trees, and shrubs, and man-madematerials such as concrete, clothing,partially buried whole or crushed emptydrums, capacitors, and other syntheticmanufactured items. This may alsoinclude geologic materials identified asnot indigenous to the natural geologicalenvironment at or near the site oridentified as indigenous rocks exceedinga total size that, based on engineeringjudgement, will affect performance ofavailable treatment technologies.

d. Notes on Drafting of the RegulatoryLanguage. To implement these changesin the various capacity variances, EPAis amending the regulatory language in§ § 268.30 through 268.33. With reopect tothe solvent wastes covered in § 208.30,the Agency is adding a new § 268.30(c)dealing with contaminated soil anddebris from CERCLA response andRCRA corrective actions. This provisionreplaces existing § 268.1(c)(3).

New § 268.30(b) groups all the solventwastes having a November 8, 1988prohibition effective date. As notedabove, new § 268.30(c) sets forth the1990 effective date for CERCLAresponse and RCRA corrective actioncontaminated soil and debris. Alsoadded is language indicating that ifthese wastes are to be disposed inlandfills or surface impoundments untilthe prohibition effective date, thelandfill or impoundment unit must meetthe section 3004(o) minimum technologyrequirements (see 53 FR 11769).

The Agency is making similar changesin § § 268.31, 268.32, and 268.33 to reflectthe revised effective dates. The languagein § 268.33(c) indicates that the 1990effective date applies to all soilscontaminated with First Third wasteswith treatment standards based onincineration.

I. Recyclable Materials Used in aManner Constituting Disposal

In the May 17 proposal, EPA proposedto amend § 266.20 of the regulations toprovide that hazardous waste-derivedproducts that are recycled by beingplaced on the land must meet theapplicable treatment standard for eachwaste that they contain as a conditionfor remaining exempt from all otherhazardous waste regulation (53 FR17605}. The Agency reasoned thatconditioning the existing regulatoryexemption in this way would effectuatethe land disposal restrictions statutoryprovisions by requiring that hazardouswastes comply with applicabletreatment standards before they arerecycled by being placed on the land.Most commenters supported thisproposal, a number urging the Agency toend the regulatory exemption altogether.Persons producing fertilizers from wasteK061, however, maintained that theirfertilizers were safe to apply and weresimilar in composition to other zinccontaining fertilizers not produced fromhazardous wastes. They therefore urgedthe Agency to retain the regulatoryexemption or to reclassify the fertilizers.Finally, a few commenters argued thathazardous secondary materials that arerecycled by being placed on the land are




not wastes at all because they are notbeing "discarded".

EPA has decided to finalize theproposed rule with respect to hazardouswaste derived products that are placedon the land, except that EPA is nottaking any action with respect tofertilizers that use waste K061 as aningredient (so that such fertilizers willremain exempt from regulation). EPA isconditioning the regulatory exemptionfor the reasons stated in the proposal,most particularly because the landdisposal restrictions statutoryprovisions indicate that wastes are notto be placed on the land until they havebeen pretreated to meet the standardsEPA established pursuant to section3004(m). Where a waste-derived productis produced from more than oneprohibited waste, the waste-derivedproduct would have to meet thetreatment standard for each hazardouswaste that it contains, and if there aredifferent treatment standards forcommon constituents, then the"product" would have to meet the moststringent of those standards.

EPA also solicited comment on anappropriate tracking system forhazardous waste-derived products todocument that these materials meet theapplicable treatment standards.Hazardous wastes sent to recyclingfacilities for ultimate use in waste-derived products that are to be placedon the land are already subject toregulation under section 268.7 (as wellas the rest of subtitle C), and so personsshipping such wastes already mustnotify the recycler that the wastes areprohibited (§§ 268.7(a) and 266.21). EPAhas decided, however, that once therecycler produces a waste-derivedproduct that meets the treatmentstandard, the recycler is not required tonotify the receiving facility that it (thereceiving facility) is receiving ahazardous waste. The ultimate user ofthe hazardous waste-derived product isnot a normal disposal facility, but ratheroperates as a commercial entity. Assuch, this entity is not a meaningfulrepository of a treatment facility's (i.e.,the recycler's) certification and trackingdocuments prepared pursuant to§ 268.7(b). Accordingly, EPA hasdecided that, instead of the recyclersubmitting information to the ultimateuser, all of the § 268.7 information is tobe submitted to the appropriate EPARegional office or State authority. Theonly difference in reportingrequirements would be that therecycling facility also keep records ofthe name and location of each entityreceiving the hazardous waste-derivedproduct. In this way, the appropriate

regulatory authority will be on notice ofthe location of each shipment and thatthe shipment has met the applicabletreatment standards for the hazardouswastes contained within the waste-derived product.

EPA has further determined thatfertilizers produced from hazardouswaste K061 should remain exempt fromall regulation for the present time. For afurther discussion of this determination,see section III. A. 7.

EPA also wishes to take thisopportunity to clarify, in response tocomment, that the underlying regulatoryprovision § 266.20, does not apply tomaterials, such as cement or aggregate,that are not produced from hazardouswastes. This is true even for cement oraggregate produced in a furnace that ispowered in whole or in part byhazardous waste fuel. Section 266.20applies when a process "use(s)hazardous wastes as ingredients" toproduce a product that is then applied tothe land (50 FR 628; January 4, 1985). Tobe covered by the rule, a product must"contain" the hazardous waste.Materials such as cement or aggregatethat are produced from raw materials,but come from processes that may befired by hazardous waste fuels, areconsequently not covered by thisprovision. They do not use hazardouswaste as ingredients. Section 266.20 thusapplies when hazardous wastes areincorporated directly into a productwhich is to be applied to the land;hazardous wastes recycled in this waythus really are being disposed. There isno such direct link with disposal whenhazardous wastes are used to power aprocess that may be producing amaterial that will be used on the land.Products produced in processes that usehazardous waste fuels thus are notcovered by section 266.20 unless theprocess also uses hazardous wastes asingredients in a product destined forland application.

Finally, EPA responds briefly to thosecommenters alleging that materials usedin a manner constituting disposal arenot being discarded and therefore arenot solid wastes. As the Agency hasexplained many times, use constitutingdisposal involves as a practical matterthe disposal of wastes. The wastes arebeing gotten rid of by placing themdirectly on the land (see e.g., 53 FR 521-22; January 8, 1988). The indications thatCongress meant to control this recyclingpractice under RCRA are legion. [SeeRCRA section 3004(1) (use of hazardouswaste as dust suppressant or for roadtreatment is prohibited); H.R. Rep. No.198, 98th Cong. 1st Sess. at 46, 67-68(hazardous waste-derived products that

are placed on the land are to be thespecial object of EPA scrutiny under theSubtitle C program)]. To say thatCongress did not intend to control theseuse constituting disposal situationsunder RCRA is to say that Congress hadno intention of controlling such damageincidents as the Times Beach dioxinspreading incident where a group ofcommunities were rendereduninhabitable as a result of use of adistillation bottoms mixed with used oilas a dust suppressant. No crediblereading of the statute would authorizethis type of conduct. Accordingly, EPAviews all use constituting disposalrecycling activities involving hazardoussecondary materials as within itsjurisdiction under RCRA subtitle C.

.Reclamation of Indigenous Waste

In the proposed rules, the Agencyindicated that where it was proposingtreatment standards based on some typeof metal recovery technology, it mightnot write treatment standards for thewastes generated by the metal recoverytechnology (for example, for the slaggenerated by resmelting hazardouswaste K069, emission control dust/sludge from secondary lead smelting).(53 FR 11762). The Agency indicated thatthis result could follow from applicationof the so-called "indigenous" principle,which states that certain wastesdestined for material recovery inindustrial furnaces can be considered tobe indigenous to those furnaces and socease to be solid wastes at the pointthey are actually placed in the furnace.(53 FR 11753). The particular wastecodes that might be affected byapplication of this principle are K061and K069.

Although EPA has discussed thisconcept for some time, and mostcommenters have agreed that some typeof indigenous principle is desirable andperhaps legally required, EPA has notfixed the precise scope of the concept.EPA proposed a definition in the May 6,1987 rule dealing with emissionstandards for boilers and industrialfurnaces, and plans shortly to reproposea somewhat different meaning for theterm as part of a reproposal of the boilerand industrial furnace standards. Thisproposed revision would evaluate boththe similarity of the process in which thewaste was originally generated and theone in which it is being recovered, andwould also evaluate the similarity of thewaste from the standpoint of identityand concentration of Appendix VIIIhazardous constituents, and the rawmaterial that it is replacing.

Based on the information now beforeit, EPA believes that K061 and K069




wastes would be indigenous to metalrecovery processes. K011 wastes aregenerated by the same type of furnacethat recovers the K031 dust, furnacesfrom both the steel industry and the zincsmelting industry are part of the samegeneric SIC code 331, and the dusts aresimilar in composition to the virgin orescustomarily smelted in zinc smeltingfurnaces. Not only are the zinc levels thesame as found in virgin ores (15%minimum), the other toxic metals (leadand cadmium) are also present in zincores in comparable concentrations.Hazardous waste K069 is even moreclearly indigenous to the secondary leadsmelting process since it is generateddirectly by the secondary lead processand contains no toxic constituents notalready present in the normal feedmaterial to the secondary lead smeltingfurnace.

It therefore appears to the Agencythat these two hazardous wastes wouldbe considered to be indigenous to therespective metal recovery process underany of the definitions that EPA isconsidering. Because it appears at thistime to be clear that under any ultimateregulatory regime these wastes wouldbe indigenous, then the derived fromrule would not apply to any of thewastes generated by the metal recoveryprocess. Consequently, the treatmentstandards EPA is establishing today forK061 and K069 do not apply to wastesfrom the metal recovery processesbecause, by virtue of the indigenousprinciple, the derived from rule wouldnot apply to these processes (i.e., theresiduals from such processes would notbe derived from a hazardous waste).

K. Nonrulemaking Procedures for Site-Specific Variances from the TreatmentStandard

In the November 7, 1986 final rule (51FR 40572), the Agency established aprocedure for obtaining a variance fromthe applicable treatment standard (40CFR 268.44). Use of this variance wasenvisioned in cases where restrictedhazardous wastes differ significantlyfrom the wastes evaluated in settingtreatment standards and, as a result,cannot be treated to meet the applicabletreatment levels or where thetechnology used to establish thetreatment level is not appropriate to thewaste. The request for this treatabilityvariance must demonstrate, among otherthings, that the waste is significantlydifferent from the wastes evaluated inestablishing the treatment standard andcannot be treated in compliance withthe applicable treatment standard. Priorto today's final rule, the section 268.44variance procedures were available onlythrough a rulemaking that would amend

the regulatory treatment standards eachtime a variance was granted.

Today's final rule amends § 268.44 byaddiiig procedures for requesting a site-specific variance from the treatmentstandard. As explained below,opportunity will be provided for publiccomment on site specific variances.

1. Background

On September 5, 1986, the Agencypublished a Notice of Availability ofData (51 FR 31783). The notice requestedcomments on whether EPA should havea variance from the generally applicabletreatment standards, and the proceduresunder which such variances should beprocessed. Commenters generallysupported allowing variances from thetreatment standard. Furthermore, in thecontext of today's modification, somecommenters, while recognizing EPA'sauthority to grant variances throughrulemaking procedures, supported theuse of nonrulemaking procedures.Because there was insufficient time tofully consider all issues relating to thevariance procedure before theNovember 7, 1986 rule was promulgated,only a procedure for obtaining avariance from the treatment standardwhich required rulemaking wasestablished (51 FR 40572); however, theAgency noted its intention to raise thenonrulemaking variance issue in thefuture.

The Agency requested comment onseveral mcdifications of the varianceprocedure in the December 11, 1986California list land disposal restrictionsproposal (51 FR 44729). Specifically,comment was requested on theadvisability of allowing nonrulemakingprocedures and on the applicability ofsuch procedures. Comment was alsorequested on establishing a deadline forvariance applications, on provisions forpublic comment, and on the criteria forgranting nonrulemaking variances.

Nonrulemaking variance procedureswere again presented for publiccomment in a Notice of Availability ofData published on August 12, 1987 (52FR 30038). It was noted that the July 7,1987 California list final rule (52 FR25780) set forth a treatment methodequivalency petition (40 CFR 268.42) thatneed not be processed through a formalrulemaking in cases where the reliefsought would not have genericapplicability and effect. In the August 12Notice, EPA solicited further commenton the advisability of applying the samereasoning to the site-specific variancefrom the treatment standard so thatformal rulemaking procedures are notmandated.

2. Major Comments

The Agency received severalcomments addressing varicuGn aspgcts ofestablishing a nonrulemaking procedurefor site-specific variances from thetreatment standard. The majority ofcommenters supported theestablishment of nonrulemakingprocedures; their arguments were basedon the need for streamlined proceduresso that variances may be reviewed in atimely manner. Several commenterssuggested that a site-specificnonrulemaking variance could beincluded in the permitting process, thusoffering an opportunity for publiccomment. One commenter cited theSupreme Court's decision in ChemicalManufacturers Association v. NRDC,470 U.S. 116 (1985), as support for EPA'sauthority to use a streamlined varianceprocedure. On the other hand, twocommenters expressed concerns aboututilizing nonrulemaking procedures. Onecommented that EPA had the authorityto grant variances from the treatmentstandard, but stated that all petitionsmust be subject to public review andcomment before they are granted. Theother commenter strongly opposed theAgency's proposed approach, arguingthat nonrulemaking procedures violateRCRA sections 3004(m), 7004, and 7006.

3. Agency Response and Summary ofToday's Approach

The Agency believes thatnonrulemaking procedures for thevariance from the treatment standardare not precluded by the statute in caseswhere such a determination is site-specific, having no generic applicabilityand effect. The Agency is taking thisposition for a number of reasons. First,since a generator-specific treatabilityvariance would not be of generalapplicability and effect, suchadministrative action would not be arule requiring utilization of theAdministrative Procedure Act informalrulemaking procedures. Second, to theextent that section 3004(m) creates anindependent requirement of rulemakingprocedures, this requirement is satisfiedby the initial rulemaking in which theBDAT treatment standard isestablished. In this regard, the Agencynotes that there are numerous instanceswhere a statute requires that a generallyapplicable standard be established byregulation, but that variances from thatstandard need not be established viarulemaking. Under RCRA, for example,EPA must use rulemaking to establishgenerally applicable standards fortreatment, storage, and disposalfacilities (RCRA section 3004(a)). EPA,

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however, has also established variancesfrom certain of these generallyapplicable requirements which can begranted by means other thanrulemaking-for example, the variancefrom the secondary containmentrequirement for hazardous waste tanksis implemented by nonrulemakingprocedures. (See § 264.193 (g) and (h)).Under the Clean Water Act, EPA isrequired to establish generallyapplicable effluent limitation guidelinesand standards by regulation, but foryears has had in place a fundamentallydifferent factors variance from thesestandards that was implemented bynonrulemaking procedures. ThisFundamentally Different Factorsvariance is now codified in the 1987amendments to the Clean Water Act,section 301(n). In the land disposalrestrictions rules themselves, EPAadopted nonrulemaking procedures forprocessing demonstrations ofequivalency to a specified BDATmethod. (See § 268.42(b)).

In fact, it appears that at least inRCRA, where Congress meant topreclude the Agency from usingnonrulemaking procedures whengranting variances, it said so explicitly.(See RCRA section 3001(f)) that mandatesuse of informal rulemaking proceduresfor processing delisting petitions.) Inother contexts, most notably RCRAsections 3004(o)(2) and 3005(j) (2), (3),(4), and (13), Congress itself explicitlyauthorized nonrulemaking proceduresfor granting other types of variances. Itthus appears to the Agency that the briefreference to "regulations" in section3004(m)(1) does not preclude the use ofnonrulemaking procedures to grantindividual variances to an alreadypromulgated treatment standard.

Therefore, today's final rulepromulgates modifications to 40 CFR268.44 that allow a site-specific variancefrom the treatment standard, having nogeneric applicability and effect, to begranted through nonrulemakingprocedures. The Agency agrees as amatter of policy to allow opportunity forpublic notice and comment prior togranting a nonrulemaking variance fromthe treatment standard. Becausecircumstances under which one mightapply for a site-specific variance vary,vehicles for public comment will bespecified on a case-by-case basis.

The Agency received no requests forvariances from the treatment standardspromulgated in the solvents and dioxinsfinal rule or the California list final rule.It is difficult to predict how manyrequests for variances from thetreatment standard will be received as aresult of today's final rule. Therefore,

the Agency is not establishing a specificformat for the variance or specifyingvehicles for providing public comment atthis time. Since the goal of granting site-specific variances from the treatmentstandard through nonrulemakingprocedures is to streamline the process,the Agency will likely provide for publiccomment through existing publicparticipation vehicles such as permitapplications or modifications, CERCLARemedial Investigation/FeasibilityStudy documents, or other relevantprocedures as appropriate. In caseswhen there is no existing proceedingwhich provides the opportunity forpublic participation, EPA will provideopportunity for notice and commentthrough publication in local newspapers,by radio broadcast, or through othermedia, similar to the varianceprocedures already in place under§ 260.33. If necessary, the Agency willissue guidance at a later date on theformat for an application and willspecify procedures for public comment.

The criteria by which anonrulemaking site-specific variancefrom the treatment standard will beevaluated remain the same as thosepreviously promulgated. Thedemonstration should be made that thewaste is significantly different from thewastes evaluated in establishing thetreatment standard and cannot betreated in compliance with theapplicable treatment standard. On asite-specific basis, it may be possible todetermine that BDAT treatment isinappropriate for a particular wastestream. For example, incineration oflarge volumes of contaminated soilunder certain site-specific conditionsmay be found to be inappropriatetreatment. Such an assertion should besupported by analytical data andtreatability studies to the greatest extentpossible. Each request for a variancefrom the treatment standard mustinclude a statement signed by theauthorized representative of theapplicant certifying that the informationis correct.

The applicant must apply to theAssistant Administrator for the Office ofSolid Waste and Emergency Response,addressing the criteria contained in§ 268.44. The authority for granting site-specific variances to the treatmentstandard may be delegated to theRegional Administrator in the future, atwhich time the application would bemade to the Regional Administrator inthe region where the applicant islocated

The Assistant Administrator (orRegional Administrator, if authority isdelegated) will evaluate the application

and issue a draft notice tentativelygranting or denying the application.Notification of this tentative decisionwill be provided by newspaperadvertisement or radio broadcast in thelocality where the applicant is located.The Assistant Administrator (orRegional Administrator, if authority isdelegated) will accept comment on thetentative decision, usually for 30 days.Public hearings may be held uponrequest or at his discretion. A finaldecision will be made after evaluationof comments.

L. Rationale for Immediate EffectiveDate

The regulations promulgated todaywill be effective immediately exceptwhere the Agency has specified anational variance or otherwise specifiedan alternative effective date. HSWArequires that today's regulations becomeeffective on or before the August 8, 1988effective date of the restrictions on thefirst one-third of the wastes scheduledpursuant to RCRA section 3004(g)(4)(A).If the Agency fails to promulgateregulations for any of these wastes bythe statutory effective date, therestrictions on disposal of the waste in alandfill or surface impoundment,stipulated in section 3004(g)(6)(A) takeeffect automatically on August 8, 1988. Ifthe Agency has not promulgatedtreatment standards for any scheduledwaste by May 8, 1990, that waste isprohibited from all forms of landdisposal unless a generator has beengranted an extension of the effectivedate (either a national variance or acase-by-case extension) or a "nomigration" finding has been made.Hence, August 8, 1988, is the latest datefor EPA to promulgate regulations thatwill prevent the "soft hammer" insection 3004(g) from falling for all FirstThird wastes. Section 3004(h) requiresthat regulations established undersections 3004 (d), (e), (f), or (g) beeffective immediately uponpromulgation. Furthermore, section3004(m) specifies that regulations settingtreatment standards must have the sameeffective date as applicable regulationsestablished under sections 3004 (d), (e),(f), or (g). For today's regulations whichset treatment standards and arepromulgated under section 3004(g), thisdate will be August 8, 1988. Since thestatute clearly states that the regulationsimplementing section 3004(g) must gointo effect on or before August 8, 1988, inorder to prevent the "soft hammer" fromfalling, EPA finds that good cause existsunder section 3010(b)(3) to have animmediate effective date. For the samereason, EPA finds that good cause also



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exists under section 553(d)[3) of theAdministrative Procedure Act, 5 U.S.C.section 553(d)(3), to waive therequirements that regulations bepublished at least 30 days before theeffective date.

IV. Modifications to the Land DisposalRestrictions Framework

Today's final rule does two things.First, it promulgates the Agency'sapproach to restricting the land disposalof First Third wastes, presenting theconditions under which land disposal ofthese wastes may be continued. Second,it modifies the existing framework of theLand Disposal Restrictions Program, asfirst promulgated on November 7, 1986(51 FR 40572) and subsequently modifiedin the July 8, 1987 California list finalrule f52 FR 25760). Unless otherwisespecified, these modifications will applyto all restricted wastes. This section oftoday's pieamble summarizes thesemodifications and refers to moredetailed discussions in other sections ofthis preamble.

A. General Waste Analysis (§§ 264.13and 265.13)

The Agency is promulgatingmodifications 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 section 3005(j)(11)surface impoundments, provided thatresiduals that do not meet the treatmentstandard are removed annually. Asdiscussed in section III.C.4., thisexemption is extended to allow forwastes subject to the "soft hammer"provisions (i.e., First Third wastes forwhich no treatment standard has beenestablished). EPA is also making certainnonsubstantive modifications to makethese sections more readable.

B. Operating Record (§§ 264.73 and265.73)

The Agency is modifying § § 264.73and 265.73 to require retention of the§ 268.8 demonstration and certification,i.e. the certifications applicable to "softhammer" wastes. EPA is also requiringfacilities to retain the new trackingnotice required under § 268.7 forgenerators sending "soft hammer"wastes to receiving facilities, and fortreatment facilities sending "softhammer" wastes to a disposal facility.The "soft hammer" notice andcertification is discussed further insections 1Il.B.2. and III.C.3. respectively.

C. Recyclable Materials Used in aManner Constituting Disposal (§ 266.20)

The Agency is amending § 266.20 torequire that hazardous waste-derivedproducts whose placement on the landwas previously exempt from Federalregulation must now meet the applicableSubpart D treatment standard (or3004(d) prohibition levels) prior to suchplacement. EPA is, however, allowingfor one exception to this requirement;namely, K081-derived fertilizers. Seesection III. I. for a discussion of theAgency's determination concerning thisamendment.

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

The Agency is modifying § 268.1 toinclude the "soft hammer" wastes in theapplicability of the land disposalrestrictions, and to allow the disposal ofsuch wastes in landfill and surfaceimpoundment units meeting the*minimum technological requirementsprovided such wastes are the subject ofa valid certification under § 268.8. EPAis also clarifying the applicability of Part268 treatment standards to prohibitedwastes generated from CERCLAresponse actions.

E. Treatment in Surface ImpoundmentExemption (§ 268.4)

The modifications to the requirementsof § 268.4 reflect the special conditionsfor allowing this exemption to apply toFirst Third wastes for which notreatment standards have beenestablished. Certain nonsubstantivemodifications have also been made toimprove the readability of the section.The conditions relating to the disposalof "soft hammer" wastes are discussedin section III.C.4.

F. 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 national or case by-caseextension of the effective date, ifdisposed in a landfill or surfaceimpoundment, must be disposed in aunit that meets the minimumtechnological requirements. EPA'searlier interpretation was that Congressintended such wastes to be disposed ina facility that meets the minimumtechnological requirements of 3064(o)(applicable only to new, replacement,or lateral expansion units). Thediscussion for this modification is foundin section III.D.

G. "No Migration" Petitions [§ 268.6)

As discussed in section III.F., theAgency is modifying the existing

requirements for petitioning EPA for a"no migration" exemption under § 268.6.This modification promulgatesadditional demonstrations required in a"no migration" petition, and certainother requirements on the owner oroperator of a waste management unitthat is subject to a "no migration"exemption.

H. Testing and Recordkeeping (§ 268.7)

The modifications to § 268.7 extendthe notification and certificationrequirements to include the First Thirdwastes, including a new notification for"soft hammer" wastes. EPA is alsoapplying the recordkeepingrequirements of this section to treatmentand storage facilities not previouslyincluded in the "cradle-to-grave" papertrail, including an additional changeaddressing wastes that may be landdisposed under an extension,exemption, or variance. Also, a 5-yearrecord retention period is beingpromulgated. The discussion for theseproposed modifications is found inSection Ill. B.

Also, as discussed in section 1111., theAgency is modifying the tracking systemto account for zinc-containing fertilizerswhich use K061 as an ingredient, whichEPA has exempted from regulation.

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) are beingpromulgated. And finally, othernonsubstantive modifications are beingmade to improve the readability of thissection.

I. Landfill and Surface ImpoundmentDisposal Restrictions (§ 268.8)

The Agency is promulgating a newsection 268.8 which addresses theprohibition on disposal of First Thirdwastes for which treatment standardshave not been established. An extensivediscussion in section III.C. presents theAgency's approach to implementingRCRA section 3004(g)(6)(A), which isapplicable to the disposal of suchwastes in landfills and surfaceimpoundments, and also promulgatesEPA's approach to the type ofinformation which must be supplied andcertified prior to such disposal.

J. Identification of Wastes to BeEvaluated By May 8, 1990 (§ 268.12)

. As discussed in Section III.C.3., theAgency is amending § 268.12 to movecertain First Third wastewater residualfrom treatment for which wastewatertreatment standards have not been setinto the Third Third. Similarly, 'the




31202 Federal Register / Vol. 53, No. 159 I Wednesday, August 17, 1988 / Rules and RegulationsAgency is also moving "soft hammer"leachate and ground watercontaminated with "soft hammer"wastes into the Third Third. This actionis taken due to the relatively lowintrinsic hazard of these wastes and toavoid discouraging substantialtreatment of "soft hammer" wastes.

Also, as discussed in section III.A.4.,the Agency is moving one class of FirstThird wastes to the third third of theschedule-mixed hazardous/radioactivewastes. EPA emphasizes that this actiononly affects First Third wastes mixedwith radioactive wastes. Wastemixtures containing spent solvents,dioxins and California list wastes aresubject to the applicable land disposalrestrictions.

K. Determination as to the Availabilityof the Two- Year Nationwide Variancefor Solvent Wastes Which Contain LessThan 1% Total Foo1 FO05 SolventConstituents (§ 268.30)

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 section 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, 1987 andalso 52 FR 22356-22357; June 11, 1987)).Because questions have been raisedregarding the policy basis for the action,and because the underlying principle isan important one which warrants thefullest consideration, EPA reproposedamended § 268.30(a)(3) as part of theApril 8 proposal (53 FR 11770).

EPA did not receive comment on thisproposal and thus is promulgating therule as proposed for the reasons statedin the April 8, proposal. Inrepromulgating regulatory language, theAgency never withdrew 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)).

L. Waste Specific Prohibitions(§§ 268.30, 268.31, 268.32, and 268.33)

Sections 268.30, 268.31, and 268.32 arebeing modified to reflect thereinterpertation of RCRA section3004(h)(4), pertaining to the disposal ofrestricted wastes granted an extensionof the effective date, as discussed inSection III.D. Also § 268.32 is changed torescind the previously granted nationalvariance for California list halogenatedorganic compounds. For a detaileddiscussion of this rescission, see SectionIII.H. Although EPA is republishingcertain other language from theseregulations, this is for the readersconvenience and is not intended toreopen these provisions for judicialreview (nor did EPA solicit or receiveany comment on these provisions).

Section 268.33 promulgates the actualprohibitions on the land disposal of FirstThird wastes (wastes listed in § 268.10)for which EPA has establishedtreatment standards, and alsoestablishes effective dates based on theavailability of capacity to treat thesewastes. Section III.A. describes thedevelopment of these treatmentstandards, and section III.C. presentsthe capacity data and assumptions onwhich the effective dates are based.Section 268.33(f) promulgates theprohibitions placed on "soft hammer"wastes, as discussed in section III.C.

It should be noted that the schedulesfor wastes K019 and K025 (Second Thirdwastes listed in § 268.11) have beenaccelerated to include these wastes inthe First Third. K100 (a Third Thirdwaste listed in § 268.12) is also includedin the First Third.

M. Treatment Standards (§§ 268.40,268.41, 268.42, and 268.43)

Treatment standards, expressed asconcentration levels in both the waste(§ 268.43, as expressed in a new TableCCW) and in a waste extract developedby using the TCLP (§ 268.42), arepromulgated by amendments to SubpartD. The existing treatment standard as aspecified method (incineration) forcertain California list halogenatedorganic compounds is being modified toallow for burning in industrial boilers orfurnaces (§ 268.42). Also, EPA ismodifying the Fool-F005 treatmentstandard for methylene chloride inwastewaters generated by thepharmaceutical industry. The newtreatment standards are discussed insection III.A.

N. Variance from the TreatmentStandard (§ 268.44)

Today's final rule promulgatesmodifications to 40 CFR 268.44 that

allow a site-specific determination togrant a variance from the treatmentstandard having no generic applicabilityand effect to be made by nonrulemakingprocedures. A detailed discussion of thisapproach is found in section III.K.

0. Storage Prohibition (§ 268.50)

Only a slight modification to theexisting storage prohibition in § 268.50 ispromulgated 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 III.C.6. of thisnotice.

V. State Authority

A. Applicability of Rules in AuthorizedStates

Under section 3006 of RCRA, EPAmay authorize qualified States toadminister and enforce the RCRAprogram within the State. Followingauthorization, EPA retains enforcementauthority under RCRA sections 3008,3013, and 7003 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 authorizedStates 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 adopt HSWArelated provisions as State law to retainfinal authorization, HSWA applies inauthorized States in the interim.

Today's rule is promulgated pursuantto sections 3004 (d) through (k), and (in),of RCRA (42 U.S.C. 6924 (d) through (k),and (in)). Therefore, it has been addedto Table 1 in 40 CFR 271.1(j), which

31L202 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1986 / Rules and Regulations




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 theHSWA provisions in Table 1, asdiscussed in the following section. Table2 in § 271.1(j) is modified to indicate thatthis rule is a self implementing provisionof HSWA for the Land DisposalRestrictions for the First Third ofScheduled Wastes.

B. Effect on State Authorizations

As noted above, EPA will implementtoday's rule in authorized States untiltheir programs are modified to adoptthese 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 (seesection 271.24(c)).

Section 271.21(e)(2) requires thatStates that have final authorization mustmodify their programs to reflect Federalprogram changes and must subsequentlysubmit the modification to EPA forapproval. State program modificationsmust be 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 RCRAprograms may have requirementssimilar to those in today's rule. TheseState regulations have not beenassessed against the Federal regulationsbeing promulgated 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 cooperative agreements tominimize duplication of efforts. In manycases, EPA will be able to defer to theStates in their efforts to implement theirprograms rather than take separateactions under Federal authority.

States that submit official applicationsfor final authorization less than 12months after the effective date of theseregulations are not required to includestandards equivalent to these standardsin their applications. However, the Statemust modify its program by thedeadlines set forth in § 271.21(c). Statesthat submit official applications for finalauthorization 12 months after theeffective date of these standards mustinclude standards equivalent to thesestandards in their application. Section271.3 sets forth the requirements a Statemust meet when submitting its finalauthorization application.

The amendments being promulgatedtoday need not affect the State'sUnderground Injection Control (UIC)primacy status. A State currentlyauthorized to administer the UICprogram under the Safe Drinking WaterAct (SDWA) may continue to do sowithout seeking authority to administerthese amendments. However, a Statedesiring to implement Part 148 and toreceive authorization to grantexemptions from the land disposalrestrictions must demonstrate that it hasthe requisite authority to administersections 3004 (1Q and (g) of RCRA. Theconditions under which suchauthorization may take place aresummarized in section C. A furtherdiscussion must be found in the July 15,1985 final rule 50 FR 28728.

C. State Implementation

State implementation of today's rule isaffected by the following four aspects ofthe framework established for the landdisposal restrictions (51 FR 40572).

1. Under Part 268, Subpart C, EPA ispromulgating land disposal restrictionsfor all generators, treaters, storers, anddisposers of certain types of hazardouswaste. In order to retain authorization,States must adopt the regulations underthis Subpart since State requirementscan be no less stringent than Federalrequirements.

2. Also under Part 268, EPA is grantingtwo-year national variances from theland disposal restrictions effective datefor certain wastes, based on a lack ofalternative treatment or recoverycapacity. In addition, case-by-caseextensions of the effective date may begranted for up to one year (renewablefor one additional year) to specificapplicants lacking adequate alternativecapacity.

The Administrator of EPA is solelyresponsible for granting variances to theeffective dates because capacitydeterminations must be made on anationwide basis. In addition, RCRAsection 3004(h(3) specifies that theAdministrator will grant or deny case-

by-case extensions, after consulting theaffected States, on the basis of nationalconcerns; therefore, States cannot beauthorized for this aspect of theprogram.

3. Under § 268.44, the Agency maygrant waste-specific or site-specificvariances from treatment standards incases where it can be demonstrated thatthe treatment standard is inappropriatefor the waste or the wastes cannot betreated to specified levels or treated byspecified methods. The Agency is solelyresponsible for granting such variancessince the result of such an action may bethe establishment of new wastetreatability groups applicable to allwastes meeting the new criteria.Therefore, this aspect of the program isnot delegated to the States. Similarly,the authority to grant nonrulemakingvariances is retained by the EPA.

4. Under § 268.6, EPA may grantpetitions of specific duration to allowland disposal of certain hazardouswastes where it can be demonstratedthat there will be no migration ofhazardous constituents for as long asthe waste remains hazardous. Stateswhich have the authority to imposerestrictions may be authorized underRCRA section 3006 to grant petitions forexemptions from the restrictions.Decisions on site-specific petitions donot require the national perspectiverequired to restrict wastes or grantextensions. However, the Agency isplanning to propose an interpretation ofthe "no migration" language in theFederal Register for public comment.Because of the controversy surroundingthe interpretation of the statutorylanguage, and the potential for changesin policy, EPA will be handling "nomigration" petitions at Headquarters,though the States may be authorized togrant these petitions in the future. TheAgency expects to gain valuableexperience and information from reviewof "no migration" petitions which mayaffect future land disposal restrictionsrulemakings. In accordance with RCRAsection 3004(i), EPA will publish noticeof the Agency's final decision onpetitions in the Federal Register.

VI. Effect of the Land DisposalRestrictions Program on OtherEnvironmental Programs

A. Discharges Regulated Under theClean Water Act

As a result of the land disposalrestrictions program, some generatorsmight switch from land disposal ofrestricted First Third wastes todischarge to publicly-owned treatmentworks (POTWs) in order to avoid



31204 Federal Register I Vol. 53, No. 159 I Wednesday, August 17, 1988 / Rules and Regulations

incurring the costs of alternativetreatment. In shifting from land disposalto discharge to POTWs, an increase inhuman and environmental risks couldoccur. Also as a result of the landdisposal restrictions, hazardous wastegenerators might illegally discharge theirwastes to surface waters withouttreatment, which could cause damage tothe local ecosystem and potentially posehealth risks from direct exposure orbioaccumulation.

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 waters. 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, andSanctuaries Act (MPRSA)

Management of some First Thirdwastes could be shifted from landdisposal to ocean dumping and oceanbased incineration. If the cost of ocean-based disposal plus transportation werelower than the cost of land basedtreatment, disposal, and transportation,this option could become an attractivealternative. In addition, ocean-baseddisposal could become attractive to theregulated community if land-basedtreatment were not available.

Although there may be economicincentives to manage restricted FirstThird wastes by ocean dumping andocean-based incineration, bothtechnologies 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 disposalalternatives, be considered beforepermits can be issued for oceandisposal.

C. Air Emissions Regulated underRCRA

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 as

chromium, can be more toxic if inhaledthan if ingested. Therefore, 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 rule-makings under section 3004(n)to address air emissions from othersources. The first rule-making willaddress emissions from equipment suchas pumps, valves, and vents from unitsprocessing concentrated organic wastestreams. The second rule-making willaddress other sources of air emissions,such as tanks and waste transfer andhandling.

VII. Regulatory Requirements

A. Regulatory Impact Analysis

1. Purpose

The Agency estimated the costs,economic impacts, and benefits oftoday's final rule. This analysis isrequired for "major" regulations asdefined by Executive Order No. 12291.(See the discussion of E.O. No. 12291below.) The Agency is also requiredunder the Regulatory Flexibility Act toassess small business impacts resultingfrom the proposed rule. The cost andeconomic impact estimates serve,additionally, as measures of thepractical capability of facilities tocomply with the proposed rule.

The results indicate that today's finalrule is a major rule. This section of thepreamble discusses the results of theanalysis of the final rule as detailed inthe Regulatory Impact Analysis (RIA)for the final rule. The RIA is available inthe public docket.

2. Executive Order No. 12291

Executive Order No. 12291 requiresEPA to assess the effect of proposedAgency actions and alternatives duringthe development of regulations. Such anassessment consists of a quantificationof the potential costs, economic impacts,and benefits of the rule, as well as adescription of any beneficial or adverseeffects that cannot be quantified inmonetary terms. In addition, ExecutiveOrder No. 12291 requires that regulatoryagencies prepare a Regulatory ImpactAnalysis (RIA) for major rules. Majorrules are defined as those likely to resultin:

• 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 RIA andhas concluded that the final rule is amajor rule with an annual cost to theeconomy of $907-962 million.

3. Basic Approach

EPA is proposing to set treatmentstandards for a subset of the First ThirdF and K wastes and to let "softhammers" fall on the remaining FirstThird wastes. The "soft hammer"provisions place restrictions on the landdisposal of First Third wastes for whichno treatment standards have been set byAugust 8, 1988. The "soft hammer"provisions will be in effect untilprohibitions on land disposal ("hardhammers") fall (on May 8, 1990) or for ashorter period if treatment standards arepromulgated. The possible effects ofprohibitions on land disposal of wastesand of later extensions of the effectivedate were not examined as part of thisanalysis. The "soft hammer" provisionsare discussed in greater detail in sectionIl. C. of this preamble.

EPA estimated the costs, benefits, andpotential economic impacts of the finalrule and of one major regulatoryalternative to it. Only the impacts of thefinal rule are presented here; results forthe regulatory alternative are discussedin the RIA.

Provisions of the final rule, asanalyzed in the RIA, are as follows:

a Treatment standards areestablished for certain F and K wastes,and

- "Soft hammer" provisions apply toremaining First Third wastes.Two "soft hammer" scenarios for thefinal rule were examined:

* Scenario 1: "soft hammers" fall onremaining First Third wastes andtreatment capacity is assumed not toexist; therefore, these wastes maycontinue to be land disposed. Landfillsand surface impoundments receiving"soft hammer" wastes must meetminimum technological requirements.

* Scenario 2: "soft hammers" fall onremaining First Third wastes andtreatment capacity is assumed to exist;therefore, these wastes must meet"approximate treatment standards"(treatment that will reduce the mobilityand toxicity of hazardous constituents),and the treatment residuals must bedisposed of in units meeting minimumtechnological requirements (exceptwhere the residuals are exempt fromregulation).While neither scenario correspondsexactly to the proposed rule, it was





assumed that the two scenarios wouldestablish upper and lower bounds on theeffects of the final rule. It was assumedthat the "soft hammer" requirementswould not affect wastes managed inwaste piles or in land treatment units,since the only requirement for facilitiesmanaging these wastes would benotification.

The effects of the final rule wereestimated by comparing post-regulatorycosts, benefits, and economic impactswith those resulting under baselineconditions (i.e., in the absence of theregulation). The baseline is defined to becontinued land disposal of wastes inunits meeting minimum technologicalrequirements.

4. Methodologya. Determination of Affected Wastes

and Facilities. The first step inestimating the impacts of the rule was todetermine which wastes and facilitieswould be affected by the rule. Based onwaste characterization and volume dataprimarily from the 1986 "NationalSurvey of Hazardous Waste Treatment,Storage, Disposal, and RecyclingFacilities" (the TSDR Survey), EPAidentified affected wastes and facilities.(See Section III. H. for a discussion ofthis procedure.) The average quantity ofwaste contributed by generator facilitieswas based on EPA's "National Survey ofHazardous Waste Generators andTreatment, Storage, and DisposalFacilities Regulated Under RCRA in1981."

The population of wastes that wouldbe affected by the rule may includesome wastes from CERCLA responsesor RCRA corrective actions; however,there are insufficient data at present toestimate these quantities. Also,underground injected wastes wereexcluded from this analysis since thesewastes will be dealt with in the RIA fora separate rule.

The population of affected facilitiesincludes:

* Hazardous waste treatment,storage, and disposal facilities withcommercial management processes("commercial TSDFs"), which charge afee for hazardous waste management;

* TSDFs with only non-commercialprocesses ("non-commercial TSDFs"),which provide management services forwastes generated on-site or off-site byfirms under the same ownership; and'

* Large and small quantity generators("generators"), which send their wasteoff-site to commercial TSDFs formanagement.

b. Cost Methodology. Once wastetypes, quantities, and baseline and post-regulatory management methods wereknown for the population of affected

facilities, EPA developed estimates ofbaseline and post regulatory costs forthe facilities. In estimating the costs,wastes at a facility that were amenableto co-management were grouped toidentify economies of scale.

Baseline and post-regulatory costsinclude both on-site and off-sitemanagement costs. On-site managementcosts are comprised of two parts:operation and maintenance (O&M) costsand capital costs. O&M costs areincurred annually for operation andmaintenance of waste treatment ordisposal units. Capital costs includecosts for construction and depreciableassets; these costs are restated asannual values by using a capitalrecovery factor based on a real interestrate of five percent. The annualizedcapital costs are added to yearly O&Mcosts to derive overall annual baselineor post-regulatory costs for facilities. Bytaking the difference between theannualized baseline and post-regulatorycosts, annualized incremental costs forfacilities were estimated.

Off-site management costs are basedon commercial hazardous wastemanagement prices. Shipping costs wereincluded for wastes sent off-site.

c. Economic Impact Methodology--1)Non-Commercial TSDFs. To assesseconomic impacts, EPA converted thebefore-tax incremental costs forfacilities from the cost analysis to after-tax compliance costs. Compliance costswere then compared with facilityfinancial information, organized byStandard Industrial Classification (SIC)code and facility size, to gauge impacts.(See Section C for references.)

Two ratios were used to identifyfacilities likely to experience adverseeconomic effects:

9 Compliance cost divided by cost ofproduction (the COP ratio), and

• Cash from operations divided bycompliance cost (the CFO ratio).These ratios bound possible effects onindividual firms by looking at whatwould happen with complete pass-through of compliance costs tocustomers and with no pass-through ofcosts. The COP ratio represents thepercent product price increase forfacility output that occurs if the entirecompliance cost-accompanied byfacility profit-is passed through tocustomers in the form of higher prices. Achange exceeding five percent isconsidered to imply a substantialadverse economic effect on a facility.The CFO ratio represents the number oftimes that a facility's gross margincovers the regulatory compliance cost ifthe facility fully absorbs the cost. Forthis ratio, a value of less than 20 is

considered to represent a significantadverse effect.

Once facilities experiencing adverseeconomic effects were identified usingthe two ratios, an analysis wasperformed to identify which of thesefacilities would be likely to close.Economic effects on individual facilitieswere examined assuming that productprice increases of five percent werepossible. Those facilities for which theCFO ratio was less than two wereconsidered likely to close.

(2) Commercial TSDFs. For this groupof facilities, the analysis of economiceffects was qualitative. This analysisincluded an examination of the quantityof waste each facility received as apercentage of the wastes restricted bytoday's rule.(3) Generators. EPA's analysis of the

economic impacts of this rule ongenerators disposing of affected wastesoff-site assumed that commercial TSDFscould entirely pass on to generators thecosts of compliance (in the form ofhigher prices for waste managementservices). Because of data limitations,EPA used a different approach toestimate economic impacts forgenerators than it used for non-commercial TSDFs. This approachbased compliance costs on averagewaste quantities shipped fromgenerators to commercial facilities andthen compared those compliance costs

.with average financial data for thegenerators in order to assess impacts.The same impact measures used toassess impacts on non-commercialTSDFs were used to gauge impacts ongenerators.

d. Benefits Methodology. The benefitsof today's rule were evaluated byconsidering the reduction in humanhealth risk that would result from usingalternative treatment for First Thirdwastes rather than employing baselineland disposal 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. Thehuman health risk posed by a wastemanagement practice is a function of thetoxicity of the chemical constituents inthe waste stream and the extent ofhuman exposure to the constituents. Thelikelihood of exposure is dictated byhydrogeologic and climatic settings atland disposal units and the fate andtransport of chemical constituents inenvironmental 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,




310 eea Rgse ol 3 o 5 I Wensdy Aus 17 18 I Rue n eUlai

surface water, and ground water intowhich they might be released by acertain waste management technology.These estimates depend on the steady-state (i.e., continuous release ratescalculated for 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 airor ingestion of ground water or surfacewater. A 65 kilogram person wasassumed to be continuously exposed tocontaminated media over a 70-yearlifetime.

The Agency next calculated the risk toan individual from the dose derived inthe previous step. For carcinogenicconstituents within a wastestream, adose-response curve was used toestimate the risk. For non-carcinogenicconstituents, the exposure concentrationwas compared with the health-effectsthreshold to determine whetherexposure above the threshold hadoccurred.

Finally, EPA estimated the populationrisk for carcinogenic and non-carcinogenic constituents within awastestream. Population risk forcarcinogenic constituents wasdetermined by multiplying the averageindividual risk by the number of peoplein a given environment. Population riskfor non-carcinogenic constituents wasbased on the number of personsexposed to concentrations exceeding thehealth-effects thresholds.

Benefits other than reduction inhuman health risk-such as resourcedamage avoided and corrective actioncosts avoided-were not quantified.Since these other benefits are likely tobe significant, the benefits presentedhere are probably understated.5. Results

a. Population of Affected Facilities.The number of facilities affected underScenarios 1 and 2 for the final rule isvery similar, as shown in Table 1. Mostof the affected facilities are generators.

TABLE 1.-NUMBER OF AFFECTEDFACILITIES

Final rule

Scenario 1 Scenario 2

Commercial TSDFs 35 35Non-Commercial

TSDFs ................ 102 102Generators ..................... 1,593 1,568

Total ........................ 1,730 1,705

b. Costs. As shown in Table 2, the 'final rule is a major rule, with costs of

$907-962 million per year.

TABLE 2.-COSTS OF THE FINAL RULE(ANNUALIZED INCREMENTAL COST INMILLIONS OF 1987 DOLLARS)

Final rule

Scenario I Scenario 2

Treatment of Certain Fand K Wastes ............. 907 907

"Soft hammer" onRemaining FirstThird Wastes .............. 0 55

Total ...................... 907 962

Most of the costs of the final rule aredue to treatment of F and K wastes. TheF and K wastes going to treatment arehigh-volume wastes; large portions ofthe wastes are managed in landfills,land treatment units, or treatmentsurface impoundments in the baselineand go to incineration and/orstabilization under the final rule. Theash from incineration often requiresstabilization due to the ash's metalcontent; the scrubber effluent fromincineration often requires wastewatertreatment to remove metals.

The First Third wastes subject to the"soft hammer" provisions, on the otherhand, are generated in relatively smallquantities and therefore do not affectcosts significantly. Their managementunder the final 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 wastesare largely organic with little metalcontent, the ash from incinerationgenerally does not require stabilization.

Under the final rule, the two "softhammer" scenarios result in asignificant difference in cost. Scenario1-continued land disposal of "softhammer" wastes-results in zeroincremental cost over the baseline for"soft hammer" wastes. Scenario 2--treatment of "soft hammer" wastesunder "approximate treatmentstandards"-results in an incrementalcost of $55 million per year. The costsassociated with the "soft hammer"would be incurred for less than twoyears, i.e., until hard hammers fell,treatment standards were established,or extensions to the effective date weregranted.

[Note: The costs presented in this sectionwere based on incineration as BDAT forK048-52. Costs based on solvent extractionas BDAT for these wastes could besignificantly lower.]

c. Economic Impacts. Most of thesignificantly affected facilities under thefinal rule are generators, as shown inTable 3. More generators are affectedunder Scenario 2 than Scenario I due tothe higher management costs for "softhammer" wastes going to treatment.

TABLE 3.-NUMBER OF FACILITIES SIGNIFI-CANTLY AFFECTED BY THE FINAL RULE

Final rule

Scenario 1 Scenario 2

Commercial TSDFs (') (')Non-Commercial

TSDFs ................ 45 46Generators...................... . 960 1,119

Total ...................... 1,005 1,165

'TSDFs with commercial processes were as-sumed to pass all compliance costs through togenerators; therefore, the number of significantlyaffected facilities was not calculated.

SIC sector 29 (Petroleum Refining andRelated Products) is the mostsignificantly affected sector, SIC 29generators and non-commercial TSDFsaccount for nearly 40 percent of overallcompliance costs. The number offacilities likely to close, looking at allSIC sectors, would be 197 and 199 underScenarios I and 2, respectively.

[Note: The economic Impacts presented inthis section were based on incineration asBDAT for K048-52. Economic impacts basedon solvent extraction as BDAT for thesewastes could be significantly smaller.]

d. Benefits. The reductions incarcinogenic and non-carcinogenic riskdue to the final rule are shown in Tables4 and 5.

TABLE 4.-REDUCTION IN CARCINOGENICRISK (NUMBER OF CASES AVOIDEDOVER A 70-YEAR EXPOSURE PERIOD)

Final rule


Treatment of F and KWastes ......................... 295 295

"Soft hammer" onRemaining FirstThird Wastes ............... 0 65

Total ...................... 295 360

TABLE 5.-REDUCTION IN NON-CARCINO-GENIC RISK (REDUCTION IN NUMBER OFPERSONS EXPOSED TO A NON-CARCINO-GEN AT A DOSE ABOVE ITS RFD)

Final rule


Treatment of F and KW astes ......................... 414 414

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TABLE 5.-REDUCTION IN NON-CARCINO-

GENIC RISK (REDUCTION IN NUMBER OF

PERSONS EXPOSED TO A NON-CARCINO-

GEN AT A DOSE ABOVE ITS RFD)--Continued

Final rule


"Soft hammer" onRemaining FirstThird Wastes ........... 0 8

Total .............. 414 422

The reduction in number of cancercases due to the final rule is 295 and 360for Scenarios I and 2, respectively. Thelargest reductions under both scenarios(150 cases) are treatment of K061 wastes(Emission Control Dust/Sludge from thePrimary Production of Steel in ElectricFurnaces). Restrictions on K048-K052wastes (from the petroleum refiningindustry) result in a decrease of another115 cancer cases.

The reduction in number of person'sexposed to a non-carcinogen at aconcentration above its RFD rangesfrom 414 under Scenario I to 422 underScenario 2. In this case, much of thebenefit under both scenarios is due toK048, K049. K061, and mixtures of thesewastes, acting through ground waterexposure.

Under both alternatives, the averagecarcinogenic risk to an individual in thepopulation is reduced across all mediaby imposing land disposal restrictions.Most of this reduction in averageindividual risk is attributable toreduction in exposure to arsenic viaground water. [Note.-The benefitspresented in this section were based onincineration as BDAT for K048-52.Benefits based on solvent extraction asBDAT for these wastes may bedifferenL]

e. Cost Effectiveness. The costeffectiveness of the final rule isillustrated in Table 6. 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 6.--COST-EFFECTIVENESS OFFINAL RULE

Final rule

Scenadio Scenario

TABLE 6.--COST-EFFECTIVENESS OF

FINAL RULE-Continued

Final rule

Scenario Scenario1 2

Benefits (Reduction InCancer Cases per Year) 4.2 5.1

Benefits (Reduction in Ex-posures to Non-Carcino-gens at Concentrationsabove Threshold) .............. 414 422

Cost Effectiveness (Mil-lions of Dollars perCancer Case Avoided) ...... 215 190

Cost Effectiveness (Mil-lions of Dollars per Non-Carcinogen ExposureAvoided) .............................. 2.2 2.3

B. Regulatory Flexibility Analysis

Pursuant to the Regulatory FlexibilityAct, 5 U.S.C. 601 et seq., whenever anagency publishes a notice of rulemaking,it must prepare a Regulatory FlexibilityAnalysis (RFA) that describes the effectof the rule on small entities (i.e., smallbusinesses, small organizations, andsmall governmental jurisdictions. AnRFA is unnecessary, however, if theAgency's Administrator certifies that therule will not have a significant economiceffect on a substantial number of smallentities. EPA believes that the final rulecould potentially have a significanteffect on a substantial number of smallentities, and particularly generators whoare small businesses. However, theAgency does not have sufficient data todistinguish small business generatorsfrom large business generators or toidentify alternatives for smallbusinesses. The Agency did receiveextensive comments and some data ongenerators of F006, a substantial numberof whom are small entities. Therefore,EPA has conducted a RegulatoryFlexibility Analysis for facilitiesaffected by the standards for F006wastes.

When EPA proposed this rule, itconcluded that there would not be asubstantial impact on a significantnumber of small entities. Since theproposal, EPA has conducted additionalanalysis of small business impacts. Thatanalysis indicated that six of the ninenon-commercial TSDFs that are smallbusinesses would be significantlyimpacted. EPA does not consider sixsignificantly affected facilities asubstantial number of affected facilities.

EPA's analysis of small businessimpacts did not address commercialTSDFs or generators. Without anevaluation of impacts on generators,which represent over 90 percent of allfacilities that manage First Third

wastes, no definitive conclusions can bedrawn on the potential impacts to smallbusinesses. It is reasonable to expectthat, since 60-71 percent of generatorsoverall are significantly affected, theremay be substantial impact on smallbusiness generators. However, EPA hasno data to support this premise due tothe lack of information on whichgenerators are small businesses.

In order to determine whetheralternatives are available to minimizeimpacts on small businesses, it isnecessary to identify those wastesgenerated by small business generatorsthat are most likely affected by the finalrule. Based on concerns expressed in thecomments, it appears that the treatmentstandards for F006 wastes fromelectroplating operations could impactsmall business generators significantly.Therefore, the Agency has examinedthree alternatives to minimize theestimated impact on small businessesgenerating F006 wastes. The Agencyrecognizes that small businesses inother industries may also be affectedsignificantly.

The first alternative considered wasnot to set treatment standards for F006,and to allow the "soft hammer"provisions to apply instead. Under thisalternative, generators could continue todispose untreated F006 wastes inlandfills and Impoundments until May1990 provided appropriate treatmentcapacity was not practically available.However, if appropriate treatment waspractically available, the generatorwould be obliged to obtain thattreatment before land disposing thewaste (assuming these wastes aredisposed in landfills or impoundments).Because the treatment standards forF006 wastes were based on a widelyavailable form of stabilization, itappears unlikely that small businessgenerators could successfullydemonstrate that appropriate treatmentis not practical or is not available. (Notethat part of the commenters concerns onF006 arose because a major wastetreatment firm, whose stabilization dataformed the basis for the proposedstandard, later determined that thelevels achieved in those tests could notbe achieved routinely. However, thiswas determined to be true for only twoof the constituents-zinc and copper, forother reasons, the Agency has deletedzinc and copper from the F006standards. Therefore, stabilization asnormally practiced by waste treatmentand disposal firms should be capable ofachieving the F006 standards. The firmwhich developed the original test dataagrees with this conclusion.) Since thisalternative only provides relief for smallCosts (Millions of 1987

Dollars per Year) ............. 907 1



31208 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988 / Rules and Regula'tions

business generators if treatment is notpractically available, and it appears thatappropriate treatment will be widelyavailable for F006 wastes, thisalternative will not be effective inproviding relief to small businessgenerators.

The second alternative consideredwas to set treatment standards, but togrant a two-year extension of theeffective date based on lack oftreatment capacity. While thisalternative could provide relief to smallentities for the two-year extensionperiod, the Agency cannot legally grantthis extension for reasons other thanlimited capacity. As noted above,stabilization capacity is widelyavailable. The Agency's recentlycompleted capacity analysis indicatesthat the amount of availablestabilization capacity exceeds theamount needed for First Third wastes.Thus, the Agency cannot make thefinding of insufficient capacitynecessary to support an extension of theeffective date.

The third alternative considered wasto alter the treatment standards for F006wastes. As noted, the Agency hasdeleted copper and zinc from thestandards; this change should ensurethat well-designed and well-operatedstabilization will achieve the treatmentstandards. Any further change in thetreatment standards would require achange in the BDAT upon which thestandard is based. Alternative BDATtechnologies that fulfill the mandate ofthe statute are likely to be more costlyto the small business generators, ratherthan less. Less costly technologies, suchas dewatering and sludge drying, do notfulfill the requirement that treatmentachieve significant reductions in toxicityand mobility of hazardous constituents.Therefore, this alternative does notminimize impacts on small entities.

Based on this examination of thealternatives, the Agency has concludedthat there are not practical and legallyavailable alternatives to minimizepossible impacts on small businessgenerators of F006 wastes.

C. Paperwork Reduction ActThe information collection

requirements in this rule have beenapproved by the Office of Managementand Budget (OMB) under the PaperworkReduction Act, 44 U.S.C. 3501 et seq andhave been assigned OMB controlNumber 2050-0085. Reporting andrecordkeeping burden on the public forthis collection is estimated at 10,745hours for the 19,679 respondents, withan average of 0.55 hours per response.These burden estimates include allaspects of the collection effort and may

include time for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, completing and reviewing thecollection of information, etC.

If an interested party wishes to submitcomments regarding any aspect of thiscollection of information, includingsuggestions for reducing the burden, orwould like a copy of the informationcollection request (please reference ICR#1442), contact Rick Westlund,Information Policy Branch, PM-223, U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460 (202)382-2745; and Marcus Peacock, Office ofInformation and Regulatory Affairs,Office of Management and Budget,Washington, DC 20503. The final rulewill respond to any OMB or publiccomments on the information collectionrequirements contained in this proposal.

D. Review of Supporting Documents

The primary source of information oncurrent land disposal practices andindustries affected by this rule wasEPA's 1986 "National Survey ofHazardous Waste Treatment, Storage,Disposal and Recycling Facilities" (theTSDR Survey). The average quantity ofwaste contributed by generator facilitieswas obtained from EPA's "NationalSurvey of Hazardous Waste Generatorsand Treatment, Storage, and DisposalFacilities Regulated Under RCRA in1981" (April 1984).

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

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

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

* RCRA background and listingdocuments for 40 CFR Section 261;

" RCRA Section 3007 industry studies;" "RCRA Risk-Cost Analysis Model,

Appendix A: Waste Stream Data Base"(March 1984); and

e Source assessment documents forvarious industries.

* "1986-1987 Survey of Selected Firmsin the Commercial Hazardous WasteManagement Industry: Final Report"(March 1988).

Financial information for theeconomic impact analysis was obtainedfrom the 1982 Census of Manufacturersand 1984 Annual Survey ofManufacturers. Producer price indiceswere used to restate 1984 dollars in 1987terms.

VIII. Implementation of the Part 263Land Disposal Restrictions Program

EPA has stated in earlier rules (see 51FR 40572, November 7, 1986; 52 FR21010, June 4, 1987; 52 FR 25760, July 8,1987) that "restricted" wastes aresubject to certain Part 268 requirements(e.g., the § 268.7 recordkeepingrequirements and the § 268.3 dilutionprohibitions) even if such wastes aresubject to an exemption, extension, orvariance making them eligible for landdisposal. The Agency has become awareof some confusion in the regulatedcommunity regarding this point. Theconfusion seems to have been createdthrough the interchanging use, by boththe regulated community and, in someinstances, by EPA, of the terms"restricted" and "prohibited". Toeliminate this confusion, EPA clarifiedthe distinction between "restricted" and"prohibited" wastes in the May 17proposal (53 FR 17620). For the benefit ofthe regulated community, the Agency isrepeating the clarification in today'srule.

"Restricted" wastes are thosecategories of hazardous wastes that areprohibited from land disposal either byregulation or statute (regardless ofwhether subcategories of such wastesare subject to a § 268.5 extension,§ 268.6, "no migration" exemption, ornational capacity variance, any of whichmakes them currently eligible for landdisposal). In other words, a hazardouswaste is "restricted" no later than thedate of the deadline established in, orpursuant to, RCRA section 3004.Therefore, the F001-F005 solvent wastesand the F020-F023 and F026-FO28dioxin-containing wastes were"restricted" as of November 8, 1986,despite the fact that severalsubcategories of these wastes obtained2-year national capacity variancesallowing them to be land disposed untilNovember 8, 1988. Similarly, Californialist wastes were "restricted" as of July 8,1987, despite the fact that severalsubcategories of such wastes obtained2-year national capacity variancesallowing continued land disposal untilJuly 8, 1989. Wastes contained in theschedule of thirds (51 FR 19300, May 28,1986) are considered "restricted" nolater than the dates specified in theschedule promulgated at 40 CFR 268.10,268.11, and 268.12.

Generators must determine whethertheir wastes are "restricted" at the pointof initial generation, i.e., when the wasteis first considered a hazardous wastesubject to RCRA regulation. Todetermine whether a hazardous waste is"restricted," generators need only




determine whether the waste belongs toa category of wastes that has beenprohibited from land disposal byregulation or by the automatic"hammer" provisions of RCRA."Prohibited" wastes are a subset of"restricted" wastes, i.e., they are those"restricted" wastes that are currentlyineligible for land disposal. Therefore, ahazardous waste that is not "restricted"cannot be "prohibited" under RCRAsection 3004. However, once a waste isconsidered "restricted", at least some ofthe Part 268 requirements apply.

The first Part 268 requirementapplicable to "restricted" wastes is thatgenerators must determine whether theirwaste currently is eligible for landdisposal pursuant to the requirements of§ 268.7. If the waste currently is noteligible for land disposal (i.e., theprohibition effective date has passed,the waste does not meet all applicabletreatment standards or prohibitionlevels and no § 268.5 extensions, § 268.6"no migration" exemption, or nationalcapacity variances apply), then thewaste currently is "prohibited" fromland disposal as well as "restricted". If,however, the waste currently is eligiblefor land disposal (i.e., the prohibitioneffective date has passed but the wastemeets the applicable treatmentstandards or prohibition levels or issubject to a § 268.5 extension, § 268.6"no migration" exemption, or nationalcapacity variance) then the waste isconsidered "restricted" but not currently"prohibited". All wastes that are"restricted" must comply with the§ 268.3 dilution prohibition (assumingthe wastes are land disposed orotherwise managed after the prohibitioneffective date), the § 268.7 wasteanalysis and recordkeepingrequirements, and all other applicablePart 268 requirements.

As a result of the regulationspromulgated today under Part 268,several options will be available to thegenerator or owner or operator of atreatment, storage, and disposal facilityfor the management of restrictedhazardous wastes. This section helpsthe regulated community determine theappropriate waste managementprocedures. It provides references to theapplicable 40 CFR Parts 264 and 265requirements as well as Part 268requirements for implementation of thevarious waste management options.

All the sequences in the generator'sdecision-making process mustcommence with a determination as towhether the hazardous waste isrestricted in Part 268 Subpart C or RCRAsection 3004(d). If the hazardous wasteis not restricted, it cannot be subject to

the land disposal restrictions of Part 268.It must nevertheless be managed inaccordance with Parts 264 and 265.

The generator of a restricted wastemust determine the appropriatetreatment standards (if any) under Part268 Subpart D (or prohibitions underRCRA section 3004(d)). The applicabletreatment standards must be determinedat the point of initial generation prior toany treatment. (Of course, if in thecourse of managing the waste a newtreatability group is created, for examplea scrubber water from the incinerationof a nonwastewater, the treatmentstandard applicable to this newtreatability group will apply.) At thistime, he must determine the effectivedate of the applicable treatmentstandard under Part 268 Subpart C. EPAhas the authority to delay the effectivedates of the Part 268 treatmentstandards based on the unavailability ofadequate national 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. Forthese wastes where EPA has determinedthat alternative capacity is adequate, orhas for whatever reason not establishedan alternate effective date, thetreatment standards take effectimmediately upon promulgation. Thegenerator must use analysis of his waste(or waste extract, when applicable) orknowledge of his waste to makedeterminations as to whether his wastemay go directly to land disposal or firstmust be treated (data supporting suchknowledge and any waste analysis datamust be kept on-site).

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 generatormust 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 landdisposal 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 the

waste is subject to a case-by-caseextension under § 268.5, or a "no-migration" exemption under § 268.6).

An off-site treatment or storagefacility must obtain a notice from thegenerator as required in § 268.7. Thisnotice must be placed in the operatingrecord. Generators that are alsotreatment facilities must keep theinformation contained in the notice(except for the manifest number) in thefacility's operating record.

When shipping the treatment residualto an interim status or RCRA permittedland disposal facility, the treatment orstorage facility must certify inaccordance with § 268.7 that thetreatment residue meets the applicabletreatment standards and must also senda notice (§ 268.7) to the land disposalfacility.

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), or satisfy thesection 3004(o)(2) equivalence standard.Prior to such disposal, the generatormust certify to the RegionalAdministrator in accordance with§ 268.8.

To make this certification, thegenerator must investigate practicallyavailable technologies appropriate fortreating his waste (see sections III. A. 8.and III. C. of this preamble for guidanceon appropriate technologies and ondetermining whether such technologiesare practical). The generator mustdemonstrate that he has made thisinvestigation, certifying that either nopractically available technologies exist




31210 Federal Register / Vol. 53, No. 159 / Wednesday, August 17, 1988./ Rules and Regulations

for treating his waste, or that the besttechnology(ies) practically available hasbeen contracted to treat the waste. Priorto treatment (if any) and disposal, thegenerator must send the demonstrationand certification to the RegionalAdministrator, to the receiving facility,and also keep records on-site. Providedthe conditions of the certification remainunchanged, demonstrations andcertifications need not be sent again tothe Regional Administrator. However, ifchanges do occur, the generator mustsubmit a new demonstration andcertification to the RegionalAdministrator. Should EPA notify thegenerator that his certification isinvalidated, the generator is responsiblefor immediately notifying thefacility(ies) receiving his waste of suchaction and must keep records of suchcommunication on-site.

Where the generator demonstratesand certifies that no practicallyavailable treatment exists, the wastemay be disposed in a landfill or surfaceimpoundment meeting the minimumtechnological requirements. For off-sitedisposal, the demonstration andcertification required in § 268.7, as wellas the notice required in § 268.7 must beprovided with the initial wasteshipment. The § 268.8 demonstrationneed not be provided again as long asthe conditions of the demonstrationhave not changed. Thereafter, only thenotice required in § 268.7 and thecertification required in § 268.8 must beprovided with each waste shipment. Ifsuch waste is disposed on-site, thedemonstration and certification requiredis § 268.8, as well as the nolice (exceptfor the manifest number) required in§ 268.7 must be kept in the operatingrecord.

If the generator's waste is a restrictedwaste listed in § 268.10 where notreatment standards has been set, andthe waste goes off-site for treatment, thegenerator must send the demonstration(only for the initial shipment), andcertification required in § 268.8 and thenotice required in § 268.7. The treatmentfacility must keep a copy of thecertification, demonstration (ifapplicable), and notice in its operatingrecord. If treated on-site, the informationcontained in the notice (except for themanifest number) must be kept in thefacility's operating record. Aftertreatment, the residuals may be landdisposed in a landfill or surfaceimpoundment unit meeting the minimumtechnological requirements of section3004(o). The owner or operator mustcertify that the treatment indicated inthe generator's demonstration has beendone, prior to disposal. For off-site

disposal, with the initial wasteshipment, the generator's demonstration,certification and notice must be sent tothe disposal facility along with theowner operator's certification.Thereafter, only the generator's andowner or operator's certification andnotice must be sent. For on-site disposal,the information contained in the notice(except the manifest number) as well asall certifications and demonstrationsmust be kept in the operating record.[Note: As discussed in section III. C. 3.,certain wastewater residuals fromtreatment of First Third wastes forwhich EPA has not promulgatedtreatment standards, as well as leachateand contaminated ground water derivedfrom the management of First Thirdwastes for which EPA has notpromulgated treatment standards arenot prohibited from land disposal untilMay 8, 1990 (by virtue of amending§ 268.12, reprioritizing the schedule) oruntil treatment standards areestablished, whichever is sooner.]

IX. References(1) U.S. EPA, "Regulatory Impact Analysis

of Restrictions of the Land Disposal on FirstThird Wastes", August, 1988.

(2) U.S. EPA, "Regulatory Impact Analysisof Restrictions on Land Disposal of FirstThird Wastes, Appendices", August, 1988.

(3) U.S. EPA, "Alternative WasteManagement Technology Cost Estimates forthe First Third Land Disposal Restrictions",August, 1988.

(4) U.S. EPA, "Background Document forFirst Third Wastes to Support 40 CFR 268Land Disposal Restrictions Final Rule, FirstThird Waste Volumes, Characteristics, andRequired and Available TreatmentCapacity", August 8, 1988.

(5) U.S. EPA, "Comment ResponseBackground Document for the First ThirdProposed Land Disposal Restrictions Rule",August 8, 1988.

(6) U.S. EPA, "Response to CapacityRelated Comments Submitted on the FirstThird Proposed Land Disposal RestrictionsRule", August 8, 1988.

f7a) U.S. EPA, "Response to BDAT RelatedComments Submitted on the First ThirdProposed Land Disposal Restrictions Rule",Vol. 1, August 8, 1988.

(7b) U.S. EPA, "Response to BDAT RelatedComments Submitted on the First ThirdProposed Land Disposal Restrictions Rule",Vol. II, August 8, 1988.

(7c) U.S. EPA, "Response to BDAT RelatedComments Submitted on the First ThirdProposed Land Disposal Restrictions Rule",Vol. Il1, August 8, 1988.

(8) U.S. EPA, "Guidance Document forApplicable and Demonstrated Technologiesfor First Third Waste Codes", EPA/530-SW-88-031P, August 8, 1988.

(9) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for F001-F005, Addendum", EPA/530-SW-88-031R, August 8, 1988.

(10) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for F006", EPA/530-SW-88-31L,August 8, 1t688.

(11) U.S. EPA, "Best Demonstrated:Available Technology (BDAT) BackgroundDocument for K0Ol", EPA/530-SW-88-0310,August 8, 1988.

(12) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT] BackgroundDocument for K015", EPA/530-SW-8-031A,August 8, 1988.

(13) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K016, K018, K019, K020, K030",EPA/530-SW-88-031B, August 8. 1988.

(14) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K022", EPA/530-SW-88-031Q,August 8, 1988.

(15) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K024", EPA/530-SW-88--031H,August 8, 1988.

(16) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K037", EPA/530-SW-88-0311,August 8, 1988.

(17) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K046", EPA/530-SW-88-31J,August 8, 1988.

(18) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT] BackgroundDocument for K048, K049. K050, K051, K052",EPA/530 SW 88 031C, August 8, 1988.

(19) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K061", EPA/530-SW-88-31D.August 8, 1988.

(20) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K062", EPA/530 SW 88 031E,August 8, 1988.

(21) U.S. EPA, "Best DemonstratedAvailable Technology [BDAT) BackgroundDocument for K071". EPA/530-SW-88-031F,August 8, 1988.

(22) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K086", EPA/530 SW-88 031N,August 8, 1988.

(23) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K087", EPA/530-SW-88-031M.August 8, 1988.

(24) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K101, K102", EPA/530-SW-88-031K, August 8, 1988.

(25) U.S. EPA, "Best DemonstratedAvailable Technology (BDAT) BackgroundDocument for K103, K104", EPA/530-SW-88-031G, August 8, 1988.

X. List of Subjects

40 CFR Parts 264 and 265

Hazardous waste, Insurance,Packaging and containers, Reportingand recordkeeping requirements,Security measures, Surety bonds



Federal Register / Vol. 53, No. 159 1 Wednesday, August 17, 1988 / Rules and Regulations 31211

40 CFR Part 266Energy, Hazardous waste, Petroleum,

Recycling, Reporting and recordkeepingrequirements

40 CFR Part 268

Hazardous waste, Reporting andrecordkeeping requirements

40 CFR Part 271

Administrative practice andprocedure, Confidential businessinformation, Hazardous materialstransportation, Hazardous waste, Indianlands, Intergovernmental relative,Penalties, Reporting and recordkeepingrequirements, Water pollution control,Water supply

Dated: August 8, 1988.Lee M. ThomasAdministrator.

For the reasons set out in thepreamble, Title 40, Chapter I of the CFRis amended as follows:

I. In Part 264:

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

1. The authority citation for Part 264continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and6925.

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 residueswhich are not delisted under § 260.22 ofthis chapter or which exhibit acharacteristic of hazardous waste andeither:

(A] Do not meet applicable treatmentstandards of Part 268, Subpart D; or

(B) Where no treatment standardshave been established;

(1) Such residues are prohibited fromland disposal under § 268.32 or RCRAsection 3004(d); or

(2) Such residues are prohibited fromland disposal under § 268.33(f).

Subpart E-Manifest System,Recordkeeping, and Reporting

3. In § 24.73 paragraphs (b) (10), (11),(12), (13) and (14) are revised andparagraphs (b) (15) and (16) are added toread as follows:

§ 264.73 Operating record.

(b) * * *(10) 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 treatment facility, acopy of the notice, and the certificationand demonstration, if applicable,required by the generator or the owneror operator under § 268.7 or § 268.8;

(12) For an on-site treatment facility,the information contained in the notice(except the manifest number), and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator under § 268.7 or§ 268.8;

(13) For an off-site land disposalfacility, a copy of the notice, and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator of a treatmentfacility under § 268.7 and § 268.8,whichever is applicable; and

(14) For an on-site land disposalfacility, the information contained in thenotice required by the generator orowner or operator of a treatment facilityunder § 268.7, except for the manifestnumber, and the certification anddemonstration if applicable, requiredunder § 268.8, whichever is applicable.

(15) For an off-site storage facility, acopy of the notice, and the certificationand demonstration if applicable,required by the generator or the owneror operator under § 268.7 or § 268.8; and

(16) For an on-site storage facility, theinformation contained in the notice(except the manifest number), and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator under § 268.7 or§ 268.8.* * * * *

II. In Part 265:

PART 265-INTERIM STATUSSTANDARDS FOR OWNERS ANDOPERATORS OF HAZARDOUS WASTETREATMENT, STORAGE, ANDDISPOSAL FACILITIES

1. The authority citation for Part 265 isrevised to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924,6925, and 6935.

Subpart B-General Facility Standards

2. Section 265.13 is amended byrevising paragraph (b)(7)(iii) to read asfollows:

§ 265.13 General waste analysis.* * * * *

(b) * *(7) * * *

(iii) The annual removal of residueswhich are not delisted under § 260.22 ofthis chapter or which exhibit acharacteristic of hazardous waste andeither:

(A) Do not meet applicable treatmentstandards of Part 268, Subpart D; or

(B) Where no treatment standardshave been established;

(1) Such residues are prohibited fromland disposal under § 268.32 or RCRAsection 3004(d); or

(2) Such residues are prohibited fromland disposal under § 268.33(f".

Subpart E-Manifest System,Recordkeeping, and Reporting

3. In § 265.73 paragraphs (b) (8), (9),(10), (11) and (12) are revised andparagraphs (b) (13) and (14) are added toread as follows:

§ 265.73 Operating record.

(b) * * *

(8) Records of the quantities (and dateof 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, monitoringdata required pursuant to a petitionunder § 268.6, or a certification under§ 268.8, and the applicable noticerequired by a generator under § 268.7(a).

(9) For an off-site treatment facility, acopy of the notice, and the certificationand demonstration if applicable,required by the generator or the owneror operator under § 268.7 or § 268.8;

(10) For an on-site treatment facility,the information contained in the notice(except the manifest number), and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator under § 268.7 or§ 268.8;

(11) For an off-site land disposalfacility, a copy of the notice, and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator of a treatmentfacility under § 268.7 or § 268.8;

(12) For an on-site land disposalfacility, the information contained in thenotice (except the manifest number),and the certification and demonstrationif applicable, required by the generatoror the owner or operator of a treatmentfacility under § 268.7 or § 268.8.

(13) For an off-site storage facility, acopy of the notice, and the certification




and demonstration if applicable,required by the generator or the owneror operator under § 268.7 or § 268.8; and

(14) For an on-site storage facility, theinformation contained in the notice(except the manifest number), and thecertification and demonstration ifapplicable, required by the generator orthe owner or operator of a treatmentfacility under § 268.7 or § 268.8.* * • * *

II. In Part 266:

PART 266-STANDARDS FOR THEMANAGEMENT OF SPECIFICHAZARDOUS WASTES AND SPECIFICTYPES OF HAZARDOUS WASTEMANAGEMENT FACILITIES



Subpart C-Recyclable Materials UsedIn a Manner Constituting Disposal

2. Section 266.20 paragraph (b) isrevised to read as follows:

§ 266.20 Applicability.

(b) Products produced for the generalpublic's use that are used in a mannerthat constitutes disposal and thatcontain recyclable materials are notpresently subject to regulation if therecyclable materials have undergone achemical reaction in the course ofproducing the products so as to becomeinseparable by physical means and ifsuch products meet the applicabletreatment standards in Subpart D of Part268 (or applicable prohibition levels in§ 268.32 or RCRA section 3004(d), whereno treatment standards have beenestablished) for each recyclable material(i.e., hazardous waste constituent) thatthey contain, However, zinc-containingfertilizers using hazardous waste KO61that are produced for the generalpublic's use are not presently subject toregulation.

IV. In Part 268:

PART 268-LAND DISPOSALRESTRICTIONS



Subpart A-General

2. In § 268.1 paragraph (c)(3) isremoved, paragraph (c)(4) isredesignated as paragraph (c)(3):paragraph (c)(5) is redesignated asparagraph (c)(4) and revised, and

paragraphs (c)(5) and (d) are added toread as follows:

§ 268.1 Purpose, scope and applicability.* * * * *

(c) • * •

(4) Where a farmer is disposing ofwaste pesticides in accordance with§ 262.70;

(5) 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 tothe treatment standards set forth inSubpart D and not subject to theprohibitions in § 268.32 or RCRA§ 3004(d).

(d) The requirements of this part shallnot affect the availability of a waiverunder section 121(d)(4) of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA).

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 wastes

with treatment standards in Subpart Dof this part and/or prohibition levels inSubpart C of this part or RCRA section3004(d), the residues from treatment areanalyzed, as specified in § 268.7 or§ 268.32, to determine if they meet theapplicable treatment standards or whereno treatment standards have beenestablished for the waste, the applicableprohibition levels. The sampling method,specified in the waste analysis planunder § 264.13 or § 265.13, must bedesigned such that representativesamples of the sludge and thesupernatant are tested separately ratherthan mixed to form homogeneoussamples.

(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 whichdo 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 are

the 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 section268.8(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 prohibitionlevels 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) to read asfollows:

§ 268.5 Procedures for case-by-caseextensions to an effective date.* * * * *

(h) * * *

(2) Such hazardous waste may bedisposed in a landfill or surfaceimpoundment unit only if such unit is incompliance with the followingrequirements'* • * * *

5. Section 268.6 is amended by addingnew paragraphs (a)(4) and (a)(5), byredesignating paragraph (c) asparagraph (d), (d) as (g), (e) as (h), (f) as(i), (g) as (j), (h) as (k), (i) as (1), (j) as(m), (k) as (n), and by adding newparagraphs (c), (e), and (f) to read asfollows:

§ 268.6 Petitions to allow land disposal ofa waste prohibited under Subpart C of Part268.

(a) * * *

(4) A monitoring plan that detectsmigration at the earliest practicabletime;




(5) Sufficient information to assure theAdministrator that the owner oroperator of a land disposal unitreceiving restricted waste(s) will complywith other applicable Federal, State, andlocal laws.

,c) Each petition referred to inparagraph (a) of this section mustinclude the following

(1) A monitoring plan that describesthe 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. The following specificinformation must be included in theplan:

(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) Thelocation of the monitoringstations;

(iv) The monitoring interval(frequency of monitoring at eachstation);

(v) The specific hazardousconstituents to be monitored;

(vil The implementation schedule forthe monitoring program;

(vii) The equipment used at themonitoring stations;

(viii) The sampling and analyticaltechniques employed- and

(ix) The data recording/reportingprocedures.

(2) Where applicable, the monitoringprogram described in paragraph ,c)(1) ofthis section must be in place for a periodof time specified by the Administrator,as part of his approval of the petition,prior to receipt of prohibited waste atthe unit.

13) The monitoring data collectedaccording to the monitoring planspecified under paragraph (c)(1) of thissection must be sent to theAdministrator according to a format andschedule specified and approved in themonitoring plan, and

(4) A copy of the monitoring datacollected under the monitoring planspecified under paragraph (c)11) 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 theAdministrator and must provide -datathat is accurate and reproducible.

(ii) All estimation and monitoringtechniques must be approved by theAdministrator.

(iii) A quality assurance and qualitycontrol plan addressing all aspects of:the 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 significantly depart from theconditions described in the variance andaffect the jpotential for migration ofhazardous constituents from the units asfollows:

f[1) If the owner or operator plans tomake changes to the unit design,construction, or operation, such achange must be proposed, in writing,and the owner or operator must submita demonstration to the Administrator atleast 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 wasmodeled or predicted in the petitiondoes not occur as predicted, this changemust be reported, in writing, to theAdministrator within 10 days ofdiscovering the change. TheAdministrator will determine whetherthe reported change from the terms ofthe petition requires further action,which may include termination of wasteacceptance and revocation of thepetition, petition modifications, or other-responses.

4(f) If the owner or operator determinesthat there is migration of hazardousconstituent(s) from the unit, the owneror operator must:

(1) Immediately suspend receipt ofrestricted waste at the unit, and

(2) Notify the Administrator, inwriting, within 10 days of thedetermination that a release hasoccurred.

'(3) Following receipt of thenotification the Administrator willdetermine, within 60 days of receivingnotification, whether the owner oroperator can continue to receiveprohibited waste in the unit andwhether the variance is to be revoked.The Administrator shall also determinewhether -further examination of anymigration is warranted under applicableprovisions of Part 264 or Part 265.* * * * *

6. Section 268.7 is amended byrevising paragraph'(a) introductory text,by revising paragraphs (a](1)introductory text, (a)(2) introductorytext, (a)(3), by redesignating paragraph(a)(4) as (a)(5) and revising it, by addingnew paragraphs (a)14) and (a)(6), byrevising paragraph (b) introductory text,by redesignating paragraph (b)(1) as(b)(4) and (b)(2) as (b)(5), by adding newparagraphs (b)(1), [b)(2), (b)(3), (b)(61,(b)(7), and (b)(8), and by revisingparagraph (c) to read as follows:

§268.7 Waste analysis and xecordkeeping.(a) Except as specified in § 268.32 or

section 268.43 of the part, the gzneratormust test his waste, or lest an extractdeveloped using the test methoddescribed in Appendix I of this part, oruse knowledge of the waste, todetermine if the waste is restricted fromland disposal under this part.

(1) If a generator determines that he ismanaging a restricted waste under ftispart and the waste does not meet theapplicable treatment standards set forthin Subpart D of this part or exceeds theapplicable prohibition levels set forth in§ 268.32 or RCRA § 3004(d), with eachshipment of waste the generator mustnotify the treatment or storage facility inwriting of the appropriate treatmentstandards set -forth in Subpart D of thisparlt and any applicable prohibitionlevels -set forth in § 268.32 or RCRA§ 3004(d).The notice must include thefollowing information:

(2) If a generator determines 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 Subpart D of thispart and the applicable prohibitionlevels set forth in § 268.32 or RCRA§ 3004(d).

(3) If a generator's waste is subject toa case by-case extension under § 268.5,an exemption under § 268.6, or anationwide variance under Subpart ,with each shipment of waste, he mustsubmit -a notice to the facility receivinghis waste stating that the waste is notprohibited from land disposal. Thenotice must include the followinginformation:

(i) EPA Hazardous Waste Number;(ii) The corresponding treatment

standards and all applicableprohibitions set forth in § 268.32 orRCRA section 3004(d);




(iii) The manifest number associatedwith the shipment of waste;

(iv) Waste analysis data, whereavailable; and

(v) The date the waste issubject tothe prohibitions.

(4) If a generator determines that he ismanaging a waste that is subject to theprohibitions under § 268.33(f) of this partand is not subject to the prohibitions setforth in § 268.32 of this part, with eachshipment of waste the generator mustnotify the treatment, storage, or disposalfacility, in writing, of any applicableprohibitions set forth in § 268.33(f). Thenotice must include the followinginformation:

(i) EPA Hazardous Waste Number;(ii) The applicable prohibitions set

forth in section 268.33(f);(iii) The manifest number associated

with the shipment of waste; and(iv) Waste analysis data, where

available.(5) If a generator determines whether

the waste is restricted based solely onhis knowledge of the waste, allsupporting data used to make thisdetermination must be retained on-sitein the generator's files. If a generatordetermines whether the waste isrestricted based on testing this waste oran extract developed using the testmethod described in Appendix I of thispart, all waste analysis data must beretained on-site in the generator's files.

(6) Generators must retain on-site acopy of all notices, certifications,demonstrations, waste analysis data,and other documentation producedpursuant to this section for at least fiveyears from the date that the waste thatis the subject of such documentationwas last sent to on-site or off-sitetreatment, storage, or disposal. The fiveyear record retention period isautomatically extended during thecourse of any unresolved enforcementaction regarding the regulated activity oras requested by the Administrator.

(b) Treatment facilities must test theirwastes according to the frequencyspecified in their waste analysis plansas required by § 264.13 or § 265.13. Suchtesting must be performed 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.

(2) For wastes that are prohibitedunder § 268.32 of this part or RCRA

section 3004(d) but not subject to anytreatment standards under Subpart D ofthis part, the owner or operator of thetreatment 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 notice andcertification requirements applicable togenerators under this section.

(7) For wastes that are subject to theprohibitions under § 268.33(o of this partand are not subject to the prohibitionsset forth in § 268.32 of this part, witheach shipment of such waste the owneror operator must notify any subsequenttreatment, storage, or disposal facility,in writing, of any applicable prohibitionsset forth in § 268.33(f). The notice mustinclude the following information:

(i) EPA Hazardous Waste Number;(ii) The applicable prohibitions set

forth in section 268.33(f);(iii) The manifest number associated

with the shipment of waste; and(iv) Waste analysis data, where

available.(8) Where the wastes are recyclable

materials used in a manner constitutingdisposal subject to the provisions of§ 266.20(b), the owner or operator of atreatment facility (the recycler) is notrequired to notify the receiving facility,pursuant to paragraph (b)(4) of thissection. With each shipment of suchwastes the owner or operator of therecycling facility must submit acertification described in paragraph(b)(5) of this section, and a notice whichincludes the information listed inparagraph (b)(4) of this section (exceptthe manifest number) to the RegionalAdministrator, or his delegatedrepresentative. The recycling facilityalso must keep records of the name andlocation of each entity receiving thehazardous waste-derived product.

(c) The owner or operator of any landdisposal facility disposing any wastesubject to restrictions under this partmust:

(1) Have copies 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 tothe prohibitions under § 268.33(fo of thispart but not subject to the prohibitionsset forth in § 268.32, he must ensure thatsuch waste is the subject of acertification according to therequirements of § 268.8 prior to disposalin a landfill or surface impoundmentunit, and that such disposal is inaccordance with the requirements of§ 268.5(h)(2). The same requirementapplies to any waste that is subject tothe prohibitions under § 268.33(f) of thisPart and also is subject to the statutoryprohibitions in RCRA section 3004(d) orthe codified prohibitions in § 268.32 ofthis Part.

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(f9 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, thegenerator has made a good faith effort tolocate and contract with treatment andrecovery facilities practically availablewhich provide the greatestenvironmental benefit.

(2) Such generator submits to theRegional Administrator a demonstrationand certification that the requirementsof paragraph (a)(1) of this section havebeen met. The demonstratton mustinclude a list of facilities and facilityofficials contacted, addresses, telephonenumbers, and contact dates.

(i) If a generator determines that thereis no practically available treatment forhis waste, he must indicate so in his




demonstration, and provide a writtendiscussion of why he was not able toobtain treatment or recovery for thatwaste. The generator must also providethe following certification:

I certify under penalty oflaw that therequirements of 40 CFR 268.8(a)(1J have beenmet and that disposal ini 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 falseinformation, including the possibility of fineand imprisonment.

(1i) If a generator determines thatthere are practically availabletreatments for his waste. he mustcontract to use the practically availabletechnology that yields the greatestenvironmental benefit, as indicated inhis demonstration. He must provide thefollowing certification:

I certify ider penalty of law 1hat therequirements of 40 CFR.268.8(a)(1) have beenmet and that I have contracted to treat mywaste (or will otherwise provide treatment)by the practically available technology whichyields 'the greatest environmental benefit, asindicated in My demonstration. I believe'thatthe information subidtil is true, accurate,and complete. lam aware that there aresignificant penalties for submritting falseiniormation, including the possibility of fineand imprisonment.

13) 'Where the generator hasdeternined that there is no practicallyavailable treatment for his waste priorto disposal, with the initial shipment,'fwaste, such generator must submit acopy of the demonstration and thecertification required in paragraph{a)[2)(A) of this section to the receivingfacility. With each subsequent wasteshipment, only the certification isrequired to be submitted provided thatthe conditions being certified remainunchanged. Such a generator must retainon-site a copy of the demonstration (ifapplicable) and certification required foreach waste shipment for-at least fiveyears from the date that the waste thatis the subject of such documentationwas last sent to on-site or off-sitedisposal. The five-year record retentionrequirement is automatically extendedduring the course of any unresolvedenforcement action regarding theregulated activity or as requested by theAdministrator.

(4) Where the generator hasdetermined that there is practicallyavailable treatment for his waste priorto disposal, with the initial shipment ofwaste, such generator must submit acopy of the demonstration and thecertification required in paragraph(a}(2{B) of this section to the receivingfacility. With each subsequent waste

shipment, only the certification isrequired to be submitted provided thatthe conditions being certified remainunchanged. Such a generator must retainon-site a copy of the demonstration (ifapplicable) and certification required foreach waste shipment for at least fiveyears from the date that the waste thatis the subject of such documentationwas last sent to on-site or off-sitedisposal. The five-year record retentionrequirement is automatically extendedduring the course of any -unresolvedenforcement action regarding theregulated activity or as requested by theAdministrator.

'b) After receiving the demonstrationand certification, the RegionalAdministrator may request anyadditional information which he deemsnecessary to evaluate the certification.

(1) A -gene ator 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 practically available treatmentexists -where the generator has certifiedotherwise, or that there exists someother method of practically 'availabletreatment yielding greaterenvironmental benefit than that whichthe generator has certified, the RegionalAdministrator may invalidate theicertification.

(3) If the Regional Administratorinvalidates a ,certification, the generatormust immediately cease furthershipments of the waste, and inform allfacilities that received the waste of suchinvalidation and keep records of suchcommunication on-site in his files.

(c) A treatment, xecovery or storagefacility receiving wastes subject to avalid certification must keep copies ofthe generator's demonstration (ifapplicable) and certification in hisoperating record.

(1] The owner or operator of atreatment or xecovery facility mustcertify that he has treated the waste inaccordance with the generator'sdemonstration. The followingcertification is required:

I certify under penalty of law that I havepersonally examined and am familiar withthe treatment technology and operation of thetreatment process used to support thiscertification and that, based on my inquiry ofthose individuals immediately responsible-forobtaining this information, I believe that thetreatment process has been operated andmaintained properly so as to comply withtreatment as specified in the generator'sdemonstration. I am aware that there aresignificant penalties for submitting false

information, including the possibility of fineand imprisonment.

(2) The owner or operator -of atreatment, recovery or storage facilitymust send a copy of the generator'sdemonstration (if applicable) andcertification under § 268.8(a)(2), andcertification under § 268.8(c)(1) (ifapplicable) to the facility receiving thewaste or treatment residues.

(d) The owner or operator of adisposal facility must ensure that thosewastes prohibited under § 263.33(f) aresubject to a certification according tothe requirements of this section prior todisposal in a landfill or surfaceimpoundment, and that the unitsreceiving such wastes must meet theminimum technological requirements of§ 268.5(h)(2).

(e) Once the certification is receivedby the Regional Administrator. andprovided that the wastes have beentreated by the treatment Iif any),determined by the generator to yield thegreatest environmental benefitpractically available, the wastes ortreatment residuals may be disposed ina landfill or surface impoundment unitmeeting the requirements of§ 268.5(hJ[f2), unless otherwiseprohibited by .the RegionalAdministrator.(Approved by the Office di Management andBudget undercontrol number 2050-0085).

8. In § 268.12, the existing text isdesignated as parEgraph (a) andparagraphs 1b), '() and (d) are added toread as follows:

§ 268.12 Identification ol wastes to beevaluatedby May8, 1990.

(b) Wastewater rsidues (less than 1%total organic carbon and less than 1%suspended solids) resulting from thefollowing well-designed and well-operated treatment methods for wasteslisted in § 268.10 for which EPA has notpromulgated wastewater treatmentstandards: metals recovery, metalsprecipitation, cyanide destruction,carbon adsorption, chemical oxidation,steam stripping, biodegradation, andincineration or other direct thermaldestruction. The -treatment standardsapplicable to wastes prohibited under§ § 268.30-268.33 of this part still apply.

(c) Leachate derived from thetreatment, storage or disposal of wasteslisted in § 268.10 for which EPA has notpromulgated wastewater treatmentstandards, and contaminated groundwater that contains such wastes. Thetreatment standards applicable towastes prohibited under §.§ 268.30-268.33 of this Part still apply.



31216 Federal Register / Vol. 5~, No. 159 I Wednesday, August 17, 1988 / Rules and Regulations(d) Hazardous Wastes listed in

§ 268.10 which are mixed hazardous/radioactive wastes. The treatmentstandards applicable to wastesprohibited under § § 268.30-268.32 of thispart still apply.

SUBPART C-PROHIBITIONS ONLAND DISPOSAL

9. Section 268.30 is revised to read asfollows:

§ 268.30 Waste specific prohibitions-Solvent wastes.

(a) Effective November 8, 1986, thespent solvent wastes specified in 40 CFR261.31 as EPA Hazardous Waste Nos.F001, F002, F003, F004, and F005, areprohibited under this part from landdisposal (except in an injection well)unless one or more of the followingconditions apply:

(1) The generator of the solvent wasteis a small quantity generator of 100-1000kilograms of hazardous waste permonth; or

(2) The solvent waste is generatedfrom any response action taken underthe Comprehensive EnvironmentalResponse, Compensation and LiabilityAct of 1980 (CERCLA) or any correctiveaction taken under the ResourceConservation and Recovery Act(RCRA), except where the waste iscontaminated soil or debris; or

(3) The initial generator's solventwaste is a solventwater mixture,solvent-containing sludge or solid, orsolventcontaminated soil (non-CERCLAor RCRA corrective action) containingless than 1 percent total F001-F005solvent constituents listed in TableCCWE of § 268.41 of this part; or

(4) The solvent waste is a residuefrom treating a waste described inparagraphs (a)(1), (a)(2), or (a)(3) of thissection; or the solvent waste is a residuefrom treating a waste not described inparagraphs (a)(1), (a)(2), or (a)(3) of thissection provided such residue belongs toa different treatability group than thewaste as initially generated and wastesbelonging to such a treatability groupare described in paragraph (a)(3) of thissection.

(b) Effective November 8, 1988, theF001-F005 solvent wastes listed inparagraphs (a) (1), (2), (3), or (4) of thissection are prohibited from landdisposal.

(c) Effective November 8, 1990, theF001-F005 solvent wastes which arecontaminatedsoil and debris resultingfrom a response action taken undersection 104 or 106 of the ComprehensiveEnvironmental Response,Compensation, and Liability Act of 1980(CERCLA) or a corrective actionrequired under subtitle C of the

Resource Conservation and RecoveryAct (RCRA) and the residues fromtreating these wastes are prohibitedfrom land disposal. Between November8, 1988, and November 8, 1990, thesewastes may be disposed in a landfill orsurface impoundment only if such unit isin compliance with the requirementsspecified in § 268.5(h)(2).

(d) The requirements of paragraphs(a), (b), and (c) of this section do notapply if:

(1) The wastes meet the standards ofSubpart D of this part; or1 (2) Persons have been granted an

exemption 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, withrespect to those wastes and unitscovered by the extension.

10. Section 268.31 is revised to read asfollows:

§ 268.31 Waste specific prohibitEons-Dioxin-containing wastes.

(a) Effective November 8, 1988, thedioxin-containing wastes specified in 40CFR 261.31 as EPA Hazardous WasteNos. F020, F021, F022, F023, F026, F027,and F028, are prohibited from landdisposal unless the following conditionapplies:

(1) The F020-F023 and F026-F028dioxin-containing waste is contaminatedsoil and debris resulting from a responseaction taken under section 104 or 106 ofthe Comprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA) or a correctiveaction taken under subtitle C of theResource Conservation and RecoveryAct (RCRA).

(b) Effective November 8, 1990, theF020-F023 and F026-F028 dioxin-containing wastes listed in paragraph(a)(1) of this section are prohibited fromland disposal.

(c) Between November 8, 1988, andNovember 8, 1990, wastes included inparagraph (a)(1) of this section may bedisposed in a landfill or surfaceimpoundment only if such unit is incompliance with the requirementsspecified in § 268.5(h)(2) and all otherapplicable requirements of Parts 264 and265 of this chapter.

(d) The requirements of paragraphs (a)and (b) of this section do not apply if:

(1) The wastes meet the standards ofSubpart D of this part; 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, withrespect to those wastes covered by theextension.

11. In Section 268.32 paragraphs (d),(e), (f), (g), introductory text, and (h) arerevised to read as follows:

§ 268.32 Waste specific prohibitions-California list wastes.

(d) The requirements of paragraphs (a)and (e) of this section do not apply until:

(1) July 8, 1989 where the wastes arecontaminated soil or debris not resultingfrom a response action taken undersection 104 or 106 of the ComprehensiveEnvironmental Response,Compensation, and Liability Act(CERCLA) or a corrective action takenunder Subtitle C of the ResourceConservation and Recovery Act(RCRA). Between July 8, 1987 and July 8,1989, the wastes may be disposed in alandfill or surface impoundment only ifsuch disposal is in compliance with therequirements specified in § 268.5(h)(2).

(2) November 8, 1990 where thewastes are contaminated soil or debrisresulting from a response action takenunder section 104 or 106 of CERCLA or acorrective action taken under Subtitle Cof RCRA. Between November 8, 1988,and November 8, 1990, the wastes maybe disposed in a landfill or surfaceimpoundment only if such unit is incompliance with the requirementsspecified in § 268.5(h)(2).

(e) Effective November 8, 1988, thefollowing hazardous wastes areprohibited from land disposal (subject toany regulations that may bepromulgated with respect to disposal ininjection wells):

(1) Liquid hazardous wastes thatcontain HOCs in total concentrationgreater than or equal to 1,000 mg/1 andare not prohibited under paragraph(a](3) of this section; and

(2) Nonliquid hazardous wastescontaining HOCs in total concentrationgreater than or equal to 1,000 mg/kg andare not wastes described in paragraph(d) of this section.

(f) Between July 8, 1987 and November8, 1988, the wastes included inparagraphs (e)[1) and (e)(2) of thissection may be disposed in a landfill orsurface impoundment only if suchdisposal is in compliance with therequirements specified in § 268.5(h)(2).

(g) The requirements of paragraphs(a), (d), and (e] of this section do notapply if:

(h) The prohibitions and effectivedates specified in paragraphs (a)(3), (d),





and (e) of this section do not applywhere the waste is subject to a Part 268Subpart C prohibition and effective datefor a specified HOC (such as ahazardous waste chlorinated solvent,see e.g., § 268.30(a)).

12. 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. F006(nonwastewater), K001, K004(nonwastewater), K008(nonwastewater), K015, K016, K018,K019, K020, K021 (nonwastewater), K022(nonwastewater), K024, K025, K030,K036 (nonwastewater), K037, K044,K045, nonexplosive K046(nonwastewater), K047, K060(nonwastewater), K061(nonwastewaters containing less than15% zinc), K062, non CaSO4 K069(nonwastewaters), K083(nonwastewaters), K086 (solventwashes), K087, K099, K100, K101, K102,K103, and K104 are prohibited from landdisposal (except in an injection well).

(1) Effective August 8, 1988 andcontinuing until August 7, 1990, K061wastes containing 15% zinc or greaterare prohibited from land disposalpursuant to the treatment standardsspecified in § 268.41 applicable to K061wastes that contain less than 15% zinc.

(b) Effective August 8, 1990, thewastes specified in 40 CFR 261.32 asEPA Hazardous Waste Nos. K048, K049,K050, K051, K052, K061 (containing 15%zinc or greater), and K071 are prohibitedfrom land disposal.

(c) Effective August 8, 1990, thewastes specified in 40 CFR 268.10 havinga treatment standard in Subpart D ofthis part based on incineration andwhich are contaminated soil and debrisare prohibited from land disposal.

(d) Between November 8, 1988 andAugust 8, 1990, wastes included inparagraphs (b) and (c) of this sectionmay be disposed of in a landfill orsurface impoundment only if such unit isin compliance with the requirementsspecified in § 268.5(h)(2).

(e) The requirements of paragraphs(a), (b), (c), and (d) of this section do notapply if:

(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, withrespect to those wastes covered by theextension.

(f) Between August 8, 1988, and May 8,1990, the wastes specified in § 268.10 forwhich treatment standards underSubpart D of this Part are notapplicable, including those wasteswhich are subject to the statutoryprohibitions of RCRA section 3004(d) orcodified prohibitions under § 268.32 ofthis Part, but not including wastessubject to a treatment standard under§ 268.42 of this Part, are prohibited fromdisposal in a landfill or surfaceimpoundment unless the wastes are thesubject of a valid demonstration andcertification pursuant to § 268.8.

(g) To determine whether a hazardouswaste listed in § 268.10 exceeds theapplicable treatment standardsspecified in § 268.41 and § 268.43, theinitial generator must test arepresentative sample of the wasteextract or the entire waste depending onwhether the treatment standards areexpressed as concentrations in thewaste extract or the waste. If the wastecontains constituents in excess of theapplicable Subpart D levels, the waste isprohibited from land disposal hnd allrequirements of Part 268 are applicable,except as otherwise specified.

Subpart D-Treatment Standards

13. 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 TableCCW of § 268.43 for" any hazardousconstituent listed in Table CCW for thatwaste.

14. In Table CCWE in § 268.41(a), inthe column headed " FO1-F005 spentsolvents," "methylene chloride (from thepharmaceutical industry)" and itscorresponding concentrations is deleted,and the following subtables to Table

CCWE are added in numerical order byEPA Hazardous Waste Number:

§ 268.41 Treatment standards expressedas concentrations In waste extracL

(a) * * *

TABLE CCWE-CONSTITUTENTCONCENTRATIONS IN WASTE EXTRACT

F006 nonwastewaters (see also Table Concentra-CCW in § 268.43) tion (in mg/

Cadm ium ................................................... 0.066Chromium (Total) ...................................... 5.2Lead ............................................................51Nickel ......................................................32Silver ...........................................................072Cyanides (Total) ........................................ Reserved

K001 nonwastewaters (see also Concentra-Table in § 268.43) tion (in mg/

1)

Lead .......................................................... 0.51

K022 nonwastewaters (see also Concentra-Table CCW in § 268.43) tion (in mg/

1)

Chromium (otal) ............................... 5.2N ickel ........................................................ 0.32

K046 nonwastewaters (Nonreactive Concentra-

Subcategory) to i g

Lead .......................................................... 0.18

K048, K049, K050, K051 and K052 Concentra-nonwastewaters (see also Table ton (in mg/

CCW in § 268.43) 1)

Arsenic ...................................................... 0.004Chromium (Total)... ............... 1.7Nickel .................... .................. .048Selenium .............................................. 025

K061 nonwastewaters (Low Zinc Concentra-Subcategory-less than 15% total tion (in mg/

zinc) 1)

Cadm ium ................................................. 0.14Chromium (Total) .................................... 5.2Lead ........................................................24N ickel ......................................................... 32

K061 nonwastewaters (High Zinc Concentra-Subcategory-15% or greater total tion (in mg/

zinc): effective until 8/8/90 1)

Cadm ium .................................................. 0.14Chromium (Total) .................................... 5.2Lead ........................................................24Nickel ........................................ .32

Federal Register I Vol, 53,




Concentra-K062 nonwastewaters tion (in mg/

1)

Chromium (Total) ..................................... 0.094Lead ...........................................................37


1)

M ercury ..................................................... 0.025

K086 nonwastewaters (Solvent Concentra.Washes Subcategory) see also Table tion (in mg/

CCW in § 268.43) 1)

Chromium (Total) ..................................... 0.094Lead ...........................................................37

K087 nonwastewaters (see also ConcentraTable CCW in § 268.43) 1 )

Lead .......................................................... 0.51

K101 and K102 nonwastewaters Concentra-(Low Arsenic Subcategory-less than Concntmg-

1% Total Arsenic) (see also Table tion (in mg/CCW in § 268.43) 1)

Cadm ium ................................................... 0.066Chromium (Total) ..................................... 5.2Lead ...........................................................5 1N ickel ......................................................... 32

15. In § 268.42 paragraph (a)(2) isrevised to read as follows:

§ 268.42 Treatment standards expressedas specified technologies.

(a) * * *

(2) Nonliquid hazardous wastescontaining halogenated organiccompounds (HOCs) in totalconcentration greater than or equal to1,000 mg/kg and liquid HOC-containingwastes that are prohibited under§ 268.32(e)(1) of this part must beincinerated in accordance with therequirements of Part 264, Subpart 0 orPart 265, Subpart 0, or in boilers orindustrial furnaces burning inaccordance with applicable regulatorystandards. These treatment standardsdo not apply where the waste is subjectto a Part 268, Subpart C treatmentstandard for a specific HOC (such as ahazardous waste chlorinated solventforwhich a treatment standard isestablished under § 268.41(a)).

16. 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 concentrations

of 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-CONSTITUENTCONCENTRATIONS IN WASTES

F001, F002, F003, F004 and F005 Concentra-wastewaters (Pharmaceutical tion (in mg/

Industry) 1)

Methylene chloride .................................. 0.44

Concentra-F006 nonwastewaters (see also tion (in rag

Table CCWE in § 268.41) kg)

Cyanides (Total) ...................................... Reserved

Concentra-K001 nonwastewaters (see also ton (in mg/Table CCWE in § 268.41) kg)

Naphthalene ............................................. 8.0Pentachlorophenol ................................. . 37Phenanthrene ........................................... 8.0Pyrene ....................................................... 7.3Toluene ...................................................... 14Xylenes ......................................................16

Concentra-K001 wastewaters tion (in mg/

1)

Naphthalene ............................................. 0.15Pentachlorophenol ................................... 88Phenanthrene ............................................ 15Pyrene ............ .............. . 14Toluene ..... ...................... .14Xylenes ............ ............... .16Lead ..........................................................037


1)

Anthracene .............................................. 1.0Benzal chloride ....................................... .28Benzo (b and/or k) fluoranthene ........... .29Phenanthrene ............................................27Toluene ......................................................15Chromium (Total) ...................................... 32N ickel ......................................................... 44


kg)

Hexachlorobenzene .............................. 28Hexachlorobutadiene .............................. 5.6Hexachlorocyclopentadiene .................. 5.6Hexachloroethane .................................. 28Tetrachloroethene .................................. 6.0

K016 wastewatersConcentra-tion (in mg/

1)

Hexachlorobenzene ............................... 0.033Hexachlorobutadiene ......................... .007Hexachlorocyclopentadiene ................... .007Hexachloroethane ................................... .033Tetrachloroethene .................................. .007


kg)

Chloroethane ............................................ 6.01,1-Dichloroethane .................................. 6.01,2-Dichloroethane .................................. 6.0Hexachlorobenzene ............................... 28Hexachlorobutadiene .............................. 5.6Hexachloroethane .................................. 28Pentachloroethane .................................. 5.61,1,1-Trichloroethane .............................. 6.0


1)

Chloroethane ........................................ 0.007Chloromethane .................................. .0071,1-Dichloroethane .................... .00712-Dichloroethane ....... ... .......... .007Hexachlorobenzene .......................... .033Hexachlorobutadiene ....................... .007Pentachloroethane .................................. .0071,1,1-Trichloroethane .............................. .007


kg)

Bis(2-chloroethyl)ether ........................... 5.6Chlorobenzene ......................................... 6.0Chloroform ................................................ 6.01,2-Dichloroethane .................................. 6.0Hexachloroethane .................. 28Naphthalene ............................................. 5.6Phenanthrene ........................................... 5.6Tetrachloroethene ................................... 6.01,2,4-Trichlorobenzene .......................... 191,1,1 -Trichloroethane .............................. 6.0


1)

Bis(2-chloroethyl)ether ............................ 0.007Chlorobenzene ......................................... .006Chloroform ............................................... .007p-Dichlorobenzene ................................. . .0081,2-Dichloroethane .................................. .007Fluorene ................................................ .007Hexachloroethane ................................... .033Naphthalene ............................................. .007Phenanthrene ................................... .0071,2,4,5-Tetrachlorobenzene .................... .017Tetrachloroethene ................................... .0071,2,4-Trichlorobenzene ........................... .0231,1,1 -Tnchloroethane .............................. .007


kg)

1,2-Dichloroethane .................................1,1,2,2-Tetrachloroethane.

*r 7 ; " ' F l





kg)

Tetrachloroethene ................................... 6.0


1)

1.2-Dichloroethane .................................. 0.0071,1.2,2-Tetrachloroethane ...................... .007Tetrachloroethene ................................... .007

K022 nonwastewaters (see also Concentra-Table CCWE in § 268.41) ion (in mg/

kg)

Acetophenone ......................................... 19Sum of Diphenylamine and Diphenyl-

nitrosamine .......................................... 13Phenol ...................................................... 12Toluene ..................................................... 0.034


kg)

Phthalic acid ............................................ 28

Concentra-K024 wastewaters lbon (in mg/

1)

Phthalic acid ............................................. 0.54


kg)

Hexachlorobutadiene .............................. 5.6Hexachloroethane .................................. 28Hexachloropropene ................................ 19Pentachlorobenzene .............................. 28Pentachioroethane ................................. 5.61,2,4,5-Tetrachlorobenzene .................. 14Tetrachloroethene .................................. 6.01,2,4-Trichlorobenzene ......................... . 19


1)

o-Dichlorobenzene .................................. 0.008p-Dichlorobenzene ................................. . .008Hexachlorobutadiene .............................. .007Hexachloroethane ................................... .033Pentachloroethane ................................. .0071,2.4,5-Tetrachlorobenzene .................... .017Tetrachloroethene ................................... .0071,2,4-Trichlorobenzene ........................... .023

Concentra-K037 nonwastewaters lion (in mg/

kg)

Disulfoton .................................................. 0.1Toluene .................................................... 28


1)

Disulfoton .................................................. 0.003Toluene .................................................... .028

K048 nonwastewaters (see also Concentra-Table CCWE in § 268.41) lion (in mg/

. kg)

Benzene ..................................................... 9.5Benzo(a)pyrene .......................................... 84Bis(2-ethylhexyl)phthalate ........................ 37Chrysene .................................................... 2.2Di-n-butyl phthalate .................................. 4.2Ethylbenzene ........................................... 67Naphthalene .............................................. [Reserved]Phenanthrene ............................................ 7.7Phenol ................................................... . 2.7Pyrene ........................................................ 2.0Toluene ............................................. 9.5Xylenes ...................................................... (Reserved]Cyanides (Total) ........................................ 1.8


1)

Benzene ................................................... 0.011Benzo(a)pyrene ....................................... .047Bis(2-ethylhexyl)phthalate ....................... .043Chrysene .................................................. .043Di-n-butyl phthalate ................................. .060Ethylbenzene ............................................ .011Fluorene .................................................... .050Naphthalene ............................................. .033Phenanthrene ................................... .039Phenol ...................................................... .047Pyrene ............................................ ........ .045Toluene .................................................... .011Xylenes ..................................................... .011Chromium (Total) ..................................... .20Lead .......................................................... 0.37

K049 nonwastewaters (see also Concentra-Table CCWE in § 268.41) tion (in mgl

kg)

Anthracene ................................................ 6.2Benzene ..................................................... 9.5Benzo(a)pyrene ......................................... 0.84Bis(2-ethylhexyl)phthalate ...................... 37Chrysene .................................................... 2.2Ethylbenzene ........................................... 67Naphthalene .............................................. (Reserved]Phenanthrene ............................................ 7.7Phenol ............................. 2.7Pyrene ............................................... 2.0Toluene ............................ 9.5Xylenes ...................................................... [Reserved]Cyanides (Total) ........................................ 1.8


___________________________________ 1)

Anthracene ..............................................Benzene ...................................................Benzo(a)pyrene .......................................Bis(2-ethylhexyl)phthalate ......................Carbon disulfidc ...............................Chrysene ..................................................2.4-Dim ethylphenol .................................Ethylbenzene ...........................................Naphthalene ............................................Phenanthrene ..........................................

0.039.011.047.043.011.043.033.011.033.039


1)

Phenol ........................................................047Pyrene ........................................................ 045Toluene ...................................................... 011Xylenes ......................................................011Chromium (Total) .................................... .20Lead ..........................................................037

Concentra-K050 nonwastewaters (see also lion (in mg/

Table CCWE in § 268.41) kg)

Benzo(a)pyrene ....................................... 0.84Phenol ................................................... .. 2.7Cyanides (Total) ...................................... 1.8

Concentra-K050 wastewaters lion (in mg/

1)

Benzo(a)pyrene ........................................ 0.047Phenol ..................................................... .047Chromium (Total) ..................................... .20Lead ...........................................................037

Concentra-K051 nonwastewaters (see also lon (in mg/Table CCWE in § 268.41) kg)

Anthracene ................................................ 6.2Benzene ..................................................... 9.5Benzo(a)anthracene ................................ 1.4Benzo(a)pyrene .......................................... 84Bis(2-ethylhexyl)phthalate ........................ 37Chrysene .................................................... 2.2Di-n-butyl phthalate .................................. 4.2Ethylbenzene ........................................... 67Naphthalene ............................................. [Reserved]Phenanthrene ................................. .... 7.7Phenol ......................................................... 2.7Pyrene ........................................................ 2.0Toluene ...................................................... 9.5Xylenes ...................................................... (Reserved]Cyanides (Total) ........................................ 1.8


1)

Acenaphthene ......................................... 0.050Anthracene .............................................. .039Benzene ....................................................011Benzo(a)anthracne ............................... .043Benzo(a)pyrene ........................................ .047Bis(2-ethylhexyl) phthalate ..................... .043Chrysene .................................................... 043Di-n-butyl phthalate ................................. .060Ethylbenzene ............................................ .011Fluorene ..................................................... 050Naphthalene ............................................. .033Phenanthrene .......................................... . 039Phenol ........................................................047Pyrene ........................................................045Toluene ......................................................011Xylenes ................................................011Chromium (Total) ...................................... 20Lead ...........................................................037




K052 nonwastewaters (see alsoTable CCWE in § 268.41)

Concentra-tion (in mg/

kg)

Benzene .................................................... 9.5Benzo(a)pyrene ........................................ 0.84o-Cresol .................................................... 2.2p-Cresol ..................................................... 0.90Ethylbenzene .......................................... 67Naphthalene .............................................. [Reserved]Phenanthren3 ............................................ 7.7Phenol ........................................................ 2.7Toluene ....................................... i .............. 9.5Xylenes ...................................................... [Reserved]Cyanides (Total) ........................................ 1.8


1)

Benzene ..................... ..................... 0.011Benzo(a)pyrene ........................................ .047o-Cresol ..................................................... 011p-Cresol........................................ .0112,4-Dimethylphenol .................................. .033Ethylbenzene ............................................ .011Naphthalene ........................................... .033Phenanthren ........................................... .039Phenol ..................................................... .047Toluene ..................................................... .011Xylenes ........................................ .011Chromium (Total) ......... ..................... .20Lead ...........................................................037

Concentra-K062 wastewaters tion (in mgl

1)

Chromium (Total) ..................................... 0.32Lead .......................................................... .04Nickel ........................................................ .44


1)

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

K086 nonwastewaters-Solvent Concentra-Washes Subcategory (see also Table ton (in mg/

CCWE in § 268.41) kg)

Acetone .................................................... 0.37bis(2-ethylhexyl) phthalate ...................... .49n-Butyl alcohol ......................................... .37Cyclohexanone ........................................ .491,2-Dichlorobenzene ............................... .49Ethyl acetate ............................................ .37Ethyl benzene .......................................... .031Methanol ................................................... .37Methylene chloride .................................. .037Methyl ethyl ketone ................................ .37Methyl isobutyl ketone ............................ .37Naphthalene ............................................. .49Nitrobenzene ............................................ .49Toluene ..................................................... .0311,1,1,-Trichloroethane ............................. .044Trichloroethylene ..................................... .031Xylenes ......................................................015

K086 wastew3ters-Solvent Washes Concentra-Subcategory 1)1 1)

0.015.044

K066 wastewaters-Solvent WashesSubcategory

Concentra-tion (in mg/

i)

n-Butyl alcohol ......................................... .031Cyclohexanone ....................................... .0221,2-Dichlorobenzene ............................... .044Ethyl acetate ............................................ .031Ethyl benzene .......................................... .015M ethanol .................................................... 031Methylene chloride .................................. .031Methyl ethyl ketone ................................. .031Methyl isobutyl ketone ............................ .031Naphthalene ............................................. .044Nitrobenzene ............................................ .044Toluene .................................................. .0291,1,1 ,-Trichloroethane ............................. .031Trichloroethylene ..................................... .029Xylenes ......................................................015Chromium (Total) ..................................... .32Lead ...........................................................037

K087 nonwastewaters (see also Concentra-Table CCWE in § 268.41) tion (in mg/

kg)

Acenaphthalene ....................................... 3.4Benzene .....................................................071Chrysene ................................................... 3.4Fluoranthene ............................................ 3.4Indeno (1,2,3-cd) pyrene ........................ 3.4Naphthalene ............................................. 3.4Phenanthrene .......................................... 3.4Toluene ......................................................65Xylenes .....................................................070


1)

Acenaphthalene ...................................... 0.028Benzene ................................................... .014Chrysene ...................................................028Fluoranthene ............................................ .028Indeno (1,2,3-cd) pyrene ........................ .028Naphthalene ............................................. .028Phenanthrene ........................................... .028Toluene ...................................................... 008Xylenes ......................................................014Lead .......................................................... 037


kg)

2,4-Dichlorophenoxyacetic acid ............. 1.0Hexachlorodibenzo-p-dioxins ................. .001Hexachlorodibenzofurans ....................... .001Pentachlorodibenzo-p-dioxins ................ .001Pentachlorodibenzofurans ...................... .001Tetrachlorodibenzo-p-dioxins ................. .001Tetrachlorodibenzoturans ....................... .001


1)

2,4-Dichlorophenoxyacetic acid ............. 1.0Hexachlorodibenzo-p-dioxins ................. .001Hoxachlorodibenzofurans ....................... .001Pontachlorodibenzo-p-dioxins ................ .001Pentachlorodibenzofurans ..................... .001Tetrachlorodibenzo-p-dioxins ................ .001Tetrachlorodibsnzofurans ...................... .001

K1 01 nonwastewaters (Low Arsenic Concentra-Subcategory-less than 1% total tion (in mg/arsenic) (see also Table CCWE in kg

§ 268.41))

Ortho-Nitroaniline ..................................... 14


1)

Ortho-Nitroaniline ..................................... 0.27

Arsenic ...................................................... 2.0Cadm ium ................................................ 24Lead .......................................................11M ercury ...................................................... 027

K102 nonwastewaters (Low Arsenic Concentra-Subcategory-less than 1% total Ioncntmg/

arsenic) (see also Table CCWE in tion (in g/§ 268.41) kg)

Ortho Nitrophenol .............................. . 13


1)

Ortho-Nitrophenol .................................... 0.028Arsenic ...................................................... 2.0Cadmium ................................................ .. . 24Lead ....................................................... ... .11Mercury ...................................................... 027


kg)

Aniline ....................................................... 5.6Benzene .................................................... 6.02,4-Dinitrophenol ..................................... 5.6Nitrobenzene ............................................ 5.6Phenol ....................................................... 5.6

Concentra-K103 wastewaters tion (in mgl

1)

Aniline ....................................................... 4.5Benzene .....................................................152,4-Dinitrophenol ................................... . 61Nitrobenzene ............................................. 073Phenol ....................................................... 1.4


kg)

Aniline ....................................................... 5.6Benzene .................................................. 6.02,4-Dinitrophenol .................................... 5.6Nitrobenzene ........................................... 5.6Phenol ...................................................... 5.6Cyanides (Total) ....................................... 1.8


1)

Aniline ....................................................... 4.5Benzene .....................................................152,4-Dinitrophenol ........... ........... 61

Acetone ...................................................bis(2-ethylhexyl)phthalate .......................

_ NvI



Feea eitrIVl 3 No. 59" Wensdy Auus 17I98/Rlsad euain 1


Nitrobenzene .............................................073Pheno ............ ............................... 1.4Cyanides (Total) ................................. 2.7

No Land Disposal for:

K004 Nonwastewaters [Based on NoGeneration]


K015 Nonwastewaters [Based on NoAsh]




K044 [Based on Reactivity]K045 [Based on Reactivity]K047 [Based on Reactivity]K060 Nonwastewaters [Based on No

Generation]K061 Nonwastewaters-High Zinc

Subcategory (greater than or equal to15% total zinc) [Based on Recycling]:effective 8/8/90

K069 Nonwastewaters-Non-CalciumSulfate Subcategory [Based onRecycling]

K083 Nonwastewaters-No AshSubcategory (less than 0.01% totalash) [Based on No Ash]

K100 Nonwastewaters [Based on NoGeneration](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.

17. In § 268.44, paragraphs (h) through(1) are added to read as follows:

§ 268.44 Variance from a treatmentstandard.

(h) Where the treatment standard isexpressed as a concentration in a wasteor waste extract and a waste generatedunder conditions specific to only onesite cannot be treated to the specifiedlevel, or where the treatment technologyis not appropriate to the waste, thegenerator or treatment facility mayapply to the Assistant Administrator ofthe Office of Solid Waste andEmergency Response, or his delegatedrepresentative, for a site'-specificvariance from a treatment standard. Theapplicant for a site-specific variancemust demonstrate that because thephysical or chemical properties of thewaste differs significantly from thewaste analyzed in developing thetreatment standard, the waste cannot betreated to specified levels or by thespecified methods.

(i) Each application for a site-specificvariance from a treatment standardmust include the information in§ 260.20(b](1)-(4);

(j) After receiving an application for asite-specific variance from a treatmentstandard, the Assistant Administrator,or his delegated representative, mayrequest any additional information orsamples which may be required toevaluate the application.

(k) A generator, treatment facility, ordisposal facility that is managing awaste covered by a site-specificvariance from a treatment standardmust comply with the waste analysisrequirements for restricted wastes foundunder § 268.7.

(1) During the application reviewprocess, the applicant for a site-specificvariance must comply with allrestrictions on land disposal under thispart once the effective date for thewaste has been reached.

Subpart E-Prohibitions on Storage

18. Section 268.50 is amended byrevising paragraph (d) to read asfollows:

§ 268.50 Prohibitions on storage ofrestricted wastes.*f * *t * *

(d) The prohibition in paragraph (a) ofthis section does not apply to wastewhich 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.

V. In Part 271:

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS

1. The authority citation for Part 271 isrevised to read as follows:

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 I inchronological order by date ofpromulgation in the Federal Register.

§ 271.1 Purpose and scope.0 * * * *

[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 promulgation of final rule in the Land disposal restrictions for First Third 53 FR [Insert Federal Register page numbers] Aug. 8, 1988.Federal Register]. wastes.

3. Section 271.1(j) is amended byadding the date of publication and the

Federal Register page numbers to thefollowing entry in Table 2.

§ 271.1 Purpose and scope.

(j) * • •

No. 159 / Wednesday, August 17, 1988 / Rules and Regulations 31221Federal Register / Vol. 53,




TABLE 2.-SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provismn RCRA citation Federal Register reference

August 8, 1988 . Land disposal restrictions on 1/3 of listed 3004(g)(6)(A) ............................................................. (Insert date of publication] 53 FR (insert Fed-wastes. eral Register page numbers]

[FR Doc. 88-182§8 Filed 8-16-88; 8:45 am]BILUNG CODE 6560-50-M

