Land Disposal RestrictionsPhase III: Decharacterized Wastewaters, Carbamate and Organobromine Wastes, and Spent Potliners

SUMMARY: Today, the Agency is proposing treatment standards for certain

hazardous wastes--namely, wastes from the production of carbamate

pesticides, organobromine flame-retardants, and aluminum--under its

Land Disposal Restrictions (LDR) program. The purpose of the LDR

program, authorized by the Resource Conservation and Recovery Act

(RCRA), is to minimize short and long-term threats to human health and

the environment from exposure to hazardous chemical constituents. The

treatment standards for these wastes will minimize threats from

exposure to hazardous constituents which may potentially leach from

landfills to groundwater.

The Agency is also proposing to revise the treatment standards for

other wastes which are hazardous because they display the

characteristic of ignitability, corrosivity, reactivity, or toxicity.

These wastes, known as ``characteristic'' hazardous wastes, are

sometimes treated in lagoons which are regulated under the Clean Water

Act, and sometimes injected into deepwells which are regulated under

the Safe Drinking Water Act. Currently, these wastes are no longer

regulated under RCRA once the characteristic property is removed.

Today's revised treatment standards require treatment, not only to

remove the characteristic, but also to treat any underlying hazardous

constituents which may be present in the wastes, even though they are

not what causes the characteristic property (i.e., a corrosive waste

could have underlying hazardous constituents that, although not

corrosive, are nevertheless toxic to human health). Therefore, these

revised treatment standards will minimize threats from exposure to

hazardous constituents which may potentially migrate from these lagoons

or wells.

Finally, EPA is proposing today to forbid the use of hazardous

wastes to fill in holes in the ground. EPA proposes that this practice

is illegal disposal of hazardous wastes. EPA is also proposing to add

to the regulations an existing policy which states that hazardous

wastes which are predominantly metal should not be burned.

DATES: Comments on this proposed rule must be submitted by May 1, 1995.

ADDRESSES: The public must send an original and two copies (and a

voluntary copy on computer diskette) of their comments to: RCRA

Information Center (5305), U.S. Environmental Protection Agency, 401 M

Street, SW., Washington, DC 20460. Place the docket number F-95-PH3P-

FFFFF on your comments. The official record for the proposed rulemaking

is located in the EPA RCRA Docket, U.S. Environmental Protection

Agency, Room 2616, 401 M Street, SW., Washington, DC 20460. The RCRA

Docket is open from 9 a.m. to 4 p.m. Monday through Friday, except for

Federal holidays. The public must make an appointment to review docket

materials by calling (202) 260-9327. The public may copy a maximum of

100 pages from any regulatory document at no cost. Additional copies

cost $0.15 per page. The mailing address is EPA RCRA Docket (5305),

U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460. For additional information on submitting computer diskettes

please see the heading ``Paperless Office Effort'' in the SUPPLEMENTARY

INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For general information on the LDR

program, contact the RCRA Hotline at 800-424-9346 (toll-free) or 703-

412-9810 locally. For information on today's proposed rule, contact

Peggy Vyas in the Office of Solid Waste, phone 703-308-8594. For

specific information on the treatment standards for carbamates and/or

organobromine wastes, contact Shaun McGarvey at 703-308-8603; for

specific information on the treatment standards for K088 wastes,

contact Mary Cunningham at 703-308-8453; for specific information on

the Universal Treatment Standards, contact Lisa Jones at 703-308-8451.

For information on the capacity analyses, contact Les Otte at 703-308-

8440. For information on the regulatory impact analyses, contact Linda

Martin at 202-260-2791.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

EPA is asking prospective commenters to voluntarily submit one

additional copy of their comments on labeled personal computer

diskettes in ASCII (TEXT) format or a word processing format that can

be converted to ASCII (TEXT). It is essential to specify on the disk

label the word processing software and version/edition as well as the

commenter's name. This will allow EPA to convert the comments into one

of the word processing formats utilized by the Agency. Please use

mailing envelopes designed to physically protect the submitted

diskettes. EPA emphasizes that submission of comments on diskettes is

not mandatory, nor will it result in any advantage or disadvantage to

any commenter. Rather, EPA is experimenting with this procedure as an

attempt to expedite our internal review and response to comments. This

expedited procedure is in conjunction with the Agency ``Paperless

Office Effort'' campaign. For further information on the submission of

diskettes, contact the Waste Treatment Branch at 703-308-8434.

Glossary of Acronyms

BAT--Best Available Technology

BDAT--Best Demonstrated Available Technology

BIFs--Boilers and Industrial Furnaces

CAA--Clean Air Act

CWA--Clean Water Act

EP--Extraction Procedure

HON--Hazardous Organic NESHAPs

HSWA--Hazardous and Solid Waste Amendments

HWIR--Hazardous Waste Identification Rule

ICR--Ignitable, Corrosive, and Reactive wastes, or, Information

Collection Request (in section XI.D.)

ICRT--Ignitable, Corrosive, Reactive, and TC Wastes

LDR--Land Disposal Restrictions

NESHAPs--National Emission Standards for Hazardous Air Pollutants

NPDES--National Pollutant Discharge Elimination System

POTW--Publically-Owned Treatment Works

PSES--Pretreatment Standards for Existing Sources

PSNS--Pretreatment Standards for New Sources

RCRA--Resource Conservation and Recovery Act

RIA--Regulatory Impact Analysis

SDWA--Safe Drinking Water Act

TC--Toxicity Characteristic

TCLP--Toxicity Characteristic Leaching Procedure

TRI--Toxic Release Inventory

UIC--Underground Injection Control

UTS--Universal Treatment Standards

Outline

I. Background

A. Summary of the Statutory Requirements of the 1984 Hazardous

and Solid Waste [[Page 11703]] Amendments, and Requirements of the

1993 Proposed Consent Decree with the Environmental Defense Fund

B. Summary of the D.C. Circuit's Opinion on the Third Third

Standards for Ignitable, Corrosive, Reactive, and Toxic

Characteristic Wastes and EPA's Implementation of the Opinion to

Date

1. Summary of the Third Third Standards

2. The Court's Decision

3. Options Prepared for the Notice of Data Availability

4. Contents of the Interim Final Rule

5. Regulation of Toxicity Characteristic (TC) Wastes in the LDR

Phase II Rule

6. Requirements of 1993 Settlement Agreement with CWM, et al.

II. EPA's Interpretation of the Third Third Opinion

A. Statutory Language

B. Legislative History

C. Judicial Opinions

III. Integration of BDAT with Other Agency Actions

A. Phase IV LDRs--Cross-Media Transfer and Equivalency Issues

1. Cross-Media Implications

2. Background of Equivalency Issues EPA is Considering for LDR

Phase IV

a. Sludges

b. Leaking Surface Impoundments

c. Air Emissions

B. The Hazardous Waste Identification Rule (HWIR)

C. Water Rules--the Pulp and Paper and Pharmaceutical Industries

Rules

IV. End-Of-Pipe Treatment Standards

A. EPA's General Approach to Setting Treatment Standards and its

Relation to the End-of-Pipe Standards Proposed Today

B. End-of-Pipe Treatment Standards for Clean Water Act and

Equivalent Wastewater Treatment Systems

1. CWA Standards and Limitations as RCRA Section 3004(m)

Treatment Standards

2. Implementation When CWA Standards and Limitations Will Be the

Exclusive Standard

a. Direct Dischargers

b. Indirect Dischargers

C. Treatment Standards for Class I Nonhazardous Injection Wells

1. Introduction

2. Compliance Options for Class I Nonhazardous UIC Wells

3. Pollution Prevention Compliance Option

4. De Minimis Volume Exclusion

D. Point of Generation Discussion

1. Introduction

2. Background

3. Similar Streams Generated by Similar Processes

4. Streams From a Single Process

5. ``Battery Limits''

6. Another Approach on Which EPA Seeks Comment

7. Situations Where Existing Point of Generation Determinations

May Remain Appropriate

a. Listed Wastes

b. Prohibited Wastes Whose Treatment Standard is a Method of

Treatment

8. Implications Beyond LDR Rules

V. Discussion of the Potential Prohibition of Nonamenable Wastes

from Land-Based Biological Treatment Systems

A. Technical Overview

B. Summary of the ETC's Position

C. Summary of the CMA's Position

D. Summary of EPA's Preliminary Response to CMA's and ETC's

Technical Concerns

1. Feed Limits

2. Technical Concern

3. Constituent Properties of Concern

a. Water solubility

b. TC Metals

c. Toxicity

F. Additional Issues

1. List of Hazardous Constituents

2. Biotreatment as BDAT

3. Toxics Along for the Ride

G. Treatment Standard for Wastes with a High Concentration of

Organics

VI. Treatment Standards for Newly Listed Wastes

A. Carbamates

1. Proposed Treatment Standards

2. Request for Comments

B. Organobromines

1. Proposed Treatment Standards for Organobromine Wastes

2. Applicable Technology

C. Aluminum Potliners (K088)

1. Possible Determination of Inherently Waste-Like

2. Overview of Today's Proposal

a. Proposed Regulated Constituents

b. Specific Companies Investigating K088 Recovery/Treatment

Technologies

VII. Improvements to the Existing Land Disposal Restrictions Program

A. Completion of Universal Treatment Standards

1. Expansion to Cover All Components of Newly Listed Wastes

(Carbamates and Organobromines)

2. UTS Organic Constituents in Wastewater and Nonwastewater

Forms

a. Nonwastewaters

b. Wastewaters

3. Application to Listed Waste

a. Wastewater-nonwastewater pairs

b. Elimination of Redundant Methods of Treatment

4. Revision to the Acetonitrile Standard

a. The acetonitrile nonwastewater standard

b. Revoking the special wastewater/nonwastewater definition for

acrylonitrile wastes

5. Aggressive Biological Treatment as BDAT for Petroleum

Refinery Wastes

B. Dilution Prohibition

1. Dilution Prohibited as a Method of Treatment

2. Permissible Dilution

3. Cyanide-Bearing Wastes and Combustion

4. Table of Inorganic Metal Bearing Wastes

5. The Addition of Iron Dust to Stabilize Characteristic

Hazardous Wastes: Potential Classification as Impermissible Dilution

C. Expansion of Methods Requiring Incineration

D. Clean Up of 40 CFR Part 268

1. Section 268.8

2. Sections 268.10--268.12

3. Section 268.2(f)

VIII. Proposed Prohibition of Hazardous Waste as Fill Material

IX. Capacity Determinations

A. Introduction

B. Capacity Analysis Results Summary

C. Requests for Comment

X. State Authority

A. Applicability of Rules in Authorized States

B. Effect on State Authorization

XI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

1. Methodology Section

a. Methodology for Estimating the Affected Universe

b. Cost Methodology

c. Economic Impact Methodology

d. Benefits Methodology

2. Results

a. Volume Results

b. Cost Results

c. Economic Impact Results

d. Benefit Estimate Results

B. Regulatory Impact Analysis for Underground Injected Wastes

C. Regulatory Flexibility Analysis

D. Paperwork Reduction Act

I. Background

A. Summary of the Statutory Requirements of the 1984 Hazardous and

Solid Waste Amendments, and Requirements of the 1993 Proposed Consent

Decree With the Environmental Defense Fund

The Hazardous and Solid Waste Amendments (HSWA) to the Resource

Conservation and Recovery Act (RCRA), enacted on November 8, 1984,

largely prohibit the land disposal of untreated hazardous wastes. Once

a hazardous waste is prohibited from land disposal, the statute

provides only two options for legal land disposal: Meet the treatment

standard for the waste prior to land disposal, or dispose of the waste

in a land disposal unit that has been found to satisfy the statutory no

migration test. A no migration unit is one from which there will be no

migration of hazardous constituents for as long as the waste remains

hazardous. RCRA sections 3004 (d), (e), (g)(5).

EPA was required to promulgate land disposal prohibitions and

treatment standards by May 8, 1990 for all wastes that were either

listed or identified as hazardous at the time of the 1984 amendments

(RCRA sections 3004(d), (e), and (g)), a task EPA completed within the

statutory timeframes. EPA was also required to promulgate prohibitions

and treatment standards for wastes identified or listed as hazardous

after the date of the 1984 amendments within six months after the

listing or identification takes effect (RCRA section 3004(g)(4)).

[[Page 11704]]

The Agency did not meet this latter statutory deadline for all of

the wastes identified or listed after the 1984 amendments. As a result,

a suit was filed by the Environmental Defense Fund (EDF). EPA and EDF

signed a consent decree that establishes a schedule for adopting

prohibitions and treatment standards for newly identified and listed

wastes. (EDF v. Reilly, Cir. No. 89-0598, D.D.C.) This proposed consent

decree was modified as a result of the court decision on the Third

Third final rule (Chemical Waste Management v. EPA, 976 F. 2d 2 (D.C.

Cir. 1992), cert. denied 113 S. Ct. 1961 (1993); hereafter referred to

as CWM v. EPA, or the Third Third opinion). Today's proposed rule

fulfills several provisions of the proposed consent decree. The rule

proposes land disposal restrictions for characteristic hazardous wastes

managed in CWA and CWA-equivalent treatment systems, and injected into

underground injection control (UIC) Class I nonhazardous injection

wells regulated under the SDWA. Today's rule also proposes treatment

standards for carbamate and organobromine wastes. The rule also

proposes treatment standards for newly listed spent aluminum potliners

(K088), which according to the proposed consent decree need not be

proposed until June 30, 1995.

B. Summary of the D.C. Circuit's Opinion on the Third Third Standards

for Ignitable, Corrosive, Reactive, and Toxic Characteristic Wastes and

EPA's Implementation of the Opinion to Date

Characteristic hazardous wastes that are treated or diluted such

that they no longer exhibit the hazardous characteristic are no longer

subject to RCRA Subtitle C management standards, and thus may be

discharged into units that are not subject to the stringent RCRA

Subtitle C standards, such as UIC wells. In CWM v. EPA, 976 F.2d 2

(D.C. Cir. 1992), the U.S. Court of Appeals for the D.C. Circuit

interpreted RCRA section 3004(m) as requiring treatment of underlying

hazardous constituents in decharacterized hazardous wastes so as to

minimize threats to human health and the environment. As yet, the

Agency has not set minimize threat levels under RCRA and therefore must

require treatment.

However, the Agency has a process to set levels under the Hazardous

Waste Identification Rule (HWIR). If risk-based minimize threat levels

are established under HWIR, these levels would implement section

3004(m) and consequently supersede the technology-based treatment

standards presently utilized. See HWTC III, 886 F. 2d at 362-63. Wastes

treated to these levels also would not be classified as hazardous

wastes and consequently could be disposed in units not subject to

subtitle C standards (e.g., landfills not receiving federal permits.)

EPA has lodged a proposed consent decree with the U.S. District Court

to propose the HWIR levels not later than August 15, 1995, and finalize

by December 15, 1996. As was previously mentioned, the Agency entered

into a consent decree setting out a schedule for fulfilling the court's

mandate for the wastes addressed in today's rule. This consent decree

requires the Agency to set treatment standards for these wastes before

the HWIR rulemaking.

That being said, the risks addressed by this rule, particularly UIC

wells, are very small relative to the risks presented by other

environmental conditions or situations. In a time of limited resources,

common sense dictates that we deal with higher risk activities first, a

principle on which EPA, members of the regulated community, and the

public can all agree.

Nevertheless, the Agency is required to set treatment standards for

these relatively low risk wastes and disposal practices during the next

two years, although there are other actions and projects with which the

Agency could provide greater protection of human health and the

environment. At the same time, however, EPA has sought to exercise the

full extent of its authority under current law to develop innovative

options designed to significantly lower the potential cost of these

controls while ensuring protectiveness, such as giving credit for up-

stream reductions in hazardous constituents, and crafting limited

exemptions for wastewaters containing de minimis amounts of hazardous

constituents. Through the public comment process and further

consultation with stakeholders, EPA expects to obtain guidance for any

future action we may take.

A detailed discussion of the Agency's interpretation of the opinion

in CWM v. EPA is provided in the next section. For background

information on the relevant portions of the Third Third final rule

(i.e., the treatment standards promulgated for hazardous wastes

exhibiting the characteristics of ignitability, corrosivity,

reactivity, or Extraction Procedure (EP) toxicity), see 55 FR 22653-

22659 (June 1, 1990).

The Agency's immediate response following issuance of the opinion

can be found in the January 19, 1993 Supplemental Information Report to

the Notice of Data Availability (58 FR 4972). This report sets out the

Agency's options for complying with the court's decision. The options

discussed in this report applied to reactive, as well as ignitable and

corrosive wastes, since EPA knows of no inherent differences among

these wastes with respect to propensity to contain hazardous

constituents.

1. Summary of the Third Third Standards

On May 8, 1990, EPA promulgated regulations addressing the last of

five congressionally-mandated prohibitions on land disposal of

hazardous wastes, which was the third one-third of the schedule of

restricted hazardous wastes, referred to as the Third Third. Among

other things, the Third Third final rule promulgated treatment

standards and prohibition effective dates for hazardous wastes that

exhibited one or more of the following characteristics: ignitability,

corrosivity, reactivity, or EP toxicity (40 CFR 261.21-261.24). The

Third Third rule established treatment standards for the characteristic

wastes in one of four forms: (1) a concentration level equal to, or

greater than, the characteristic level; (2) a concentration level less

than the characteristic level; (3) a specified treatment technology

(e.g., for ignitable wastes containing high levels of total organic

carbon); and (4) a treatment standard of ``deactivation'' which allowed

the use of any technology, including dilution, to remove the

characteristic.

The Agency also evaluated the applicability of certain provisions

of the land disposal restrictions' framework with respect to

characteristic wastes, including wastes regulated under the National

Pollutant Discharge Elimination System (NPDES) or pretreatment programs

under sections 402 and 307(b) of the CWA and the SDWA UIC programs to

try to ensure successful integration of these programs with the

regulations being promulgated under RCRA. See generally 55 FR 22653-59

(June 1, 1990). Specifically, the Agency considered the appropriateness

of the dilution prohibition for each of the characteristic waste

streams, and the applicability of treatment standards expressed as

specified methods.

The Agency found, generally, that mixing waste streams to eliminate

certain characteristics was appropriate and permissible for corrosive

wastewaters, or in some cases, reactive or ignitable wastewaters.

Furthermore, EPA stated that the dilution prohibition did not normally

apply to characteristic wastewaters that are managed in treatment

trains including surface impoundments whose ultimate

[[Page 11705]] discharge is regulated under the pretreatment and NPDES

programs under sections 307(b) and 402 of the CWA, or in Class I

underground injection well systems regulated under the SDWA. The Agency

stated that the treatment requirements and associated dilution rules

under the CWA are generally consistent with the dilution rules under

RCRA, and that the Agency should rely on the existing CWA provisions.

The Agency also singled out certain particularly toxic wastewaters to

which the dilution prohibition still applies notwithstanding management

in CWA systems. 40 CFR 268.3(b). Similarly, EPA stated that a

regulatory program had been established under the SDWA to prevent

underground injection which endangers drinking water sources. Class I

deep wells inject below the lowermost geologic formation containing an

underground drinking water source and are subject to federal location,

construction, and operation requirements. The Agency stated that

application of the dilution rules to these wastes would not provide

further protection to human health and the environment, and that

disposal of these wastes by underground injection at the characteristic

levels was as sound a practice as treating them.

2. The Court's Decision

On September 25, 1992, the United States Court of Appeals for the

District of Columbia Circuit ruled on the various petitions for review.

The principal holdings of the case with respect to characteristic

wastes are that: (1) EPA may require treatment under RCRA section

3004(m) to more stringent levels than those at which wastes are

identified as hazardous, 976 F. 2d at 12-14; (2) section 3004(m)

requires that treatment standards address both short-term and long-term

potential harms posed by hazardous wastes, and consequently must result

in destruction and removal of hazardous constituents as well as removal

of the characteristic property, id. at 16, 17, 23. As a consequence,

dilution is permissible as an exclusive method of treatment only for

those characteristic wastes that do not contain hazardous constituents

``in sufficient concentrations to pose a threat to human health or the

environment'' (i.e., the minimize threat level in section 3004(m)), id.

at 16; and (3) situations where characteristic hazardous wastes are

diluted, lose their characteristic(s) and are then managed in

centralized wastewater management land disposal units (i.e., subtitle D

surface impoundments or Class I nonhazardous injection wells) are legal

only if it can be demonstrated that hazardous constituents are reduced

or destroyed to the same extent they would be pursuant to otherwise

applicable RCRA treatment standards, id. at 7.

As a consequence of these holdings, the court held that the

deactivation standard for ignitable and corrosive wastes did not fully

comply with RCRA section 3004(m). This was because that standard could

be achieved by dilution, and dilution fails to destroy or remove the

hazardous constituents that can be present in the wastes. Id. (A more

detailed analysis of the D.C. Circuit's Third Third opinion is found in

section II of this notice.)

3. Options Prepared for the Notice of Data Availability

On January 19, 1993, EPA published a Notice of Data Availability to

solicit as many comments as possible on all issues in the court opinion

(58 FR 4972). The Agency prepared a Supplemental Information Report

that was distributed to the public that set out the Agency's options

for complying with the court's decision. The options discussed in this

report applied to reactive, as well as ignitable and corrosive wastes,

since EPA knows of no inherent differences among these wastes with

respect to propensity to contain hazardous constituents.

The report included options for establishing treatment standards

for the underlying hazardous constituents in ignitable, corrosive and

reactive (ICR) wastes that would have to be met prior to land disposal

(including disposal in UIC wells). (It should be noted that the Agency

also believes that underlying hazardous constituents can be present in

wastes displaying the toxicity characteristic.) Two approaches were set

out, along with the Agency's views on possible advantages and

disadvantages of each.

Under approach one, the Agency discussed the possibility of

adopting concentration limits for underlying hazardous constituents.

Under approach two, the Agency discussed specifying required treatment

technologies. The Agency discussed how these possible approaches might

apply to ICR wastes that are not managed in CWA centralized wastewater

treatment systems. Furthermore, the applicability of LDR treatment

standards to CWA facilities, and possible implementation scenarios

under the CWA, were also discussed.

The Agency also discussed options for how to determine the

equivalency of CWA treatment systems with treatment under RCRA. The

``equivalency'' discussion included possible options for addressing air

emissions, leaks, and sludges from CWA treatment surface impoundments.

Also mentioned were other Agency efforts such as the Hazardous Organic

NESHAPs (HON) (59 FR 19402, April 22, 1994) developed by the Office of

Air. These options will be developed in a later LDR rulemaking, but are

discussed here and elsewhere in this preamble in order to inform and

gather comments from all potentially affected persons.

Approximately 60 public comments were received in response to the

Notice of Data Availability. Those that pertain to establishing

treatment standards for characteristic waste managed in CWA, CWA-

equivalent, and Class I nonhazardous UIC wells have been considered as

this proposed rule was developed.

4. Contents of the Interim Final Rule

EPA issued an interim final rule on May 24, 1993 (58 FR 29860) to

address those treatment standards that were vacated (as opposed to

remanded) by the court. Today's rule proposes treatment standards for

some of the portions of the rule that were remanded. The distinction

between vacated and remanded rules is that vacated rules are no longer

in effect after the court's mandate issues, whereas remanded rules

remain in force until the Agency acts to replace them.

The Agency's opinion at that time was that the rules dealing with

centralized wastewater management involving land disposal

(Secs. 268.1(c)(3) and 268.3(b)) were remanded, not vacated. (See 976

F. 2d at 7, 19-26 where these rules are discussed and not expressly

vacated.) This means that the only wastes to which the interim final

rule applied were those ignitable and corrosive wastes for which the

treatment standard was deactivation (since the deactivation standard

for these wastes was vacated) and which were not managed in the types

of centralized wastewater management systems covered by the remanded

rules cited above.

The Agency thus promulgated revised treatment standards for certain

ignitable and corrosive wastes that are managed in systems other than

those managed: (1) In centralized wastewater treatment systems subject

to the CWA or in Class I underground injection wells subject to the

SDWA UIC program; or, (2) by a zero discharger with a wastewater

treatment system equivalent to that utilized by CWA dischargers prior

to land disposal. The treatment standards retained the requirement of

deactivation to remove the hazardous characteristic (see DEACT in Table

1, 40 CFR 268.42); however, the rule also set numerical treatment

standards for the underlying hazardous [[Page 11706]] constituents that

could reasonably be expected to be present in the wastes. EPA also

promulgated alternative treatment standards of incineration, fuel

substitution, and recovery of organics for ignitable wastes. In

addition, EPA established new precautionary measures to prevent

emissions of volatile organic constituents or violent reactions during

the process of diluting ignitable and reactive wastes.

5. Regulation of Toxicity Characteristic (TC) Wastes in the LDR Phase

II Rule

On March 29, 1990, EPA promulgated a rule that identified organic

constituents (in addition to existing EP metals and pesticide

constituents) and levels at which a waste is considered hazardous based

on the characteristic of toxicity (55 FR 11798). Because these wastes

were identified as hazardous after the enactment date of HSWA in 1984,

they were ``newly identified wastes'' for purposes of the LDR program.

Included are wastes identified with the codes D012 through D043 based

on the Toxicity Characteristic Leaching Procedure (TCLP), i.e., TC

wastes. In the LDR Phase II final rule (59 FR 47982, September 19,

1994), EPA established treatment standards for each of these

constituents if they are managed in systems other than those regulated

under the CWA, those engaging in CWA-equivalent treatment prior to land

disposal, and those injected into Class I deep injection wells

regulated under the SDWA. In addition, because wastes exhibiting the TC

can contain treatable levels of other hazardous constituents, EPA

established treatment standards for the underlying hazardous

constituents reasonably expected to be present in the waste. These

rules are consistent with the Third Third opinion and adopt the same

approach as the May 24, 1993 interim final rule.

Furthermore, as part of a regulatory response to implement the

court's ruling, EPA required in the LDR Phase II final rule that

hazardous constituents in two types of characteristic wastes--high

total organic carbon (TOC) ignitable liquids (D001) and halogenated

pesticide wastes that exhibit the toxicity characteristic (D012-D017)--

be fully treated before those wastes are disposed into any Class I

nonhazardous injection well that does not have a no-migration variance.

See 59 FR at 48013. Therefore, these wastes can no longer be legally

diluted to remove the characteristic and then be injected into Class I

nonhazardous injection wells.

6. Requirements of 1993 Settlement Agreement With CWM, et al.

This proposed rule continues to fulfill the requirements of the

settlement agreement with the petitioners in CWM v. EPA. Today's rule

proposes concentration-based treatment standards for the underlying

hazardous constituents reasonably expected to be present in ignitable,

corrosive, reactive and TC wastes managed in CWA and CWA-equivalent

treatment systems, and injected into UIC Class I nonhazardous injection

wells regulated under the SDWA. The settlement agreement calls for

developing standards for ignitable and corrosive wastes only; however,

the Agency believes that underlying hazardous constituents may also be

present in reactive and toxic wastes, and is therefore proposing

regulations for these wastestreams as well.

Today's rule also complies with the settlement agreement by

describing and discussing the following option for implementing the

opinion: the identification of underlying hazardous constituents that

are not amenable to treatment in certain CWA centralized treatment

systems, and the subsequent prohibition on the introduction of such

nonamenable wastes into such systems.

II. EPA's Interpretation of the Third Third Opinion

EPA's action in this rulemaking is taken to implement key portions

of the court's mandate in CWM v. EPA, the opinion vacating and

remanding (among other things) EPA's rules allowing treatment standards

for hazardous constituents in characteristic hazardous wastes to be

achieved solely by diluting these constituents. EPA's initial view of

the opinion is that it interprets the statute to require that hazardous

constituents present in hazardous wastes at concentrations exceeding a

minimize threat level to be treated so that they are destroyed,

removed, or immobilized before the waste is land disposed. Some

commenters to the May 24, 1993 interim final rule and the LDR Phase II

proposed rule, however, have argued that dilution nevertheless can be

utilized as the sole means of treating characteristic hazardous wastes,

if dilution reduces hazardous constituent concentration levels to

levels reflecting either performance of Best Demonstrated Available

Technology (BDAT) or minimize threat levels. This argument is based

largely on language in the court's opinion that treatment of hazardous

constituents is required if, after dilution, hazardous constituents are

present in concentrations sufficient to pose a threat to human health

and the environment. See, e.g., 976 F. 2d at 7, 17, 18, 19-20, 23. Some

commenters have added the further argument that section 3004(m)

requires that treatment ``substantially reduce the toxicity of the

waste'', which is accomplished when dilution lowers hazardous

constituents to BDAT levels.

If these arguments were accepted, it would mean that characteristic

wastes could be disposed after dilution, without further treatment of

hazardous constituents, provided sufficient dilution had occurred.

Although this argument has been made chiefly by representatives of

facilities engaged in underground injection, the argument is not

limited to the injection context, or even to the context of

characteristic wastes. Thus, if EPA accepted this argument, it would

mean that any hazardous waste could be land disposed into any type of

land disposal unit provided the waste was sufficiently diluted before

land disposal, notwithstanding that the same volume of hazardous

constituents as in the initial waste would be land disposed.

EPA does not accept this interpretation of the court's opinion or

of the statute. In the Agency's view, the statute and opinion are best

interpreted by requiring hazardous constituents in hazardous wastes to

be treated so that hazardous constituents are destroyed, removed, or

immobilized before land disposal. The Agency's basis for this

conclusion is set out below.

A. Statutory Language

Section 3004(m)(1) requires EPA to establish, as a precondition to

land disposal of hazardous waste, treatment standards ``which

substantially diminish the toxicity of the waste or substantially

reduce the likelihood of migration of hazardous constituents from the

waste so that short-term and long-term threats to human health and the

environment are minimized.'' Although the first prong of the test--

``substantially diminish the toxicity of the waste''--conceivably is

satisfied by dilution,\1\ the treatment must not only diminish the

waste's toxicity but also do so in a manner that minimizes short-term

and long-term harms to human health and the environment.\2\

[[Page 11707]] Furthermore, although EPA has maintained that

``minimization'' of threats does not necessarily require elimination of

all possible hazards (see, e.g., 55 FR 6641 and n.1 (February 26,

1990)), the phrase certainly requires something more substantial than

merely diluting hazardous constituents.

\1\If, for example, a wastewater starts out with cadmium

concentrations exceeding 100 mg/l and is diluted so that cadmium is

present at concentrations below the MCL of 0.1 mg/l, the toxicity of

the waste has been diminished.

\2\``Treatment is required not only for purposes of protecting

against the short-term or acute risks associated with the land

disposal of hazardous wastes, but more importantly focuses on the

long-term hazards associated with migration of the wastes and

subsequent contamination of ground or surface water.'' 130 Cong.

Rec. S9178 (July 25, 1984) (Statement of Sen. Chaffee introducing

the amendment that became section 3004(m))

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Allowing the waste's toxicity to be diminished solely by dilution

also is at odds with RCRA's enumerated goals and policies. Congress

prohibited land disposal of hazardous waste because of ``long-term

uncertainties associated with land disposal'',\3\ and persistence,

toxicity, mobility, and propensity to bioaccumulate'' of hazardous

constituents in the waste. Sections 3004 (d)(1), (e)(1), (g)(5);

Hazardous Waste Treatment Council v. EPA, 886 F. 2d 1355, 1362-63 (D.C.

Cir. 1989), cert. denied 111 S. Ct. 139 (1990) (upholding technology-

based treatment standards due to the uncertainties inherent in

determining when land disposal is protective). Land disposal of

untreated hazardous waste is only allowed in ``protective'' land

disposal units, defined as meaning units from which no hazardous

constituents will migrate for as long as the waste remains hazardous--

to be demonstrated ``to a reasonable degree of certainty''. Sections

3004 (d)(1), (e)(1), (g)(5). Allowing dilution of hazardous

constituents fails to take account of these long-term uncertainties,

propensity to bioaccumulate, and the like. As a result, it arguably

fails to minimize long-term threats posed by the wastes.

\3\See also section 1002(b)(7) which states that ``certain

classes of land disposal facilities are not capable of assuring

long-term containment of certain hazardous wastes, and to avoid

substantial risk to human health and the environment, reliance on

land disposal should be minimized or eliminated * * *.''.

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Another provision indicating that Congress did not intend for

dilution to be a means of treating toxic hazardous wastes is section

3004(h). Congress, in sections 3004(h) (2) and (3), authorized EPA to

postpone LDR prohibition effective dates for up to two years (renewable

for up to two additional years for individual facilities) if there is

inadequate available treatment capacity for a particular waste. This

provision would not have been necessary if dilution could be used as a

means of treatment, since it would never take two years (or longer) for

a facility to develop the means (i.e. adding dirt or water) of diluting

wastes to meet a treatment standard.

B. Legislative History

The legislative history states that dilution is not to be allowed

as a means of treating hazardous constituents. See S. Rep. No. 284,

98th Cong. 2d sess. 17, which states that ``(t)he dilution of wastes by

the addition of other hazardous wastes or any other materials during

waste handling, transportation, treatment, or storage is not an

acceptable method of treatment to reduce the concentration of hazardous

constituents. Only dilution which occurs as a normal part of the

process that results in the waste can be taken into account in

establishing concentration levels.''\4\ The House Report is similarly

explicit.\5\ The Conference Report similarly states that ``the

Conferees intend that through the vigorous implementation of the

objectives of this Act, land disposal will be eliminated for many

wastes and minimized for all others, and that advanced treatment,

recycling, incineration and other hazardous waste control technologies

should replace land disposal.'' H. Rep. No. 1133, 98th Cong. 2d sess.

80.

\4\The final sentence undoubtedly refers to situations where

dilution occurs as part of the manufacturing process that generates

the waste (see House Report quoted in the next footnote), not to

dilution that occurs once the waste is generated.

This legislative history was to a bill containing the

predecessor provision to section 3004(m). The critical provision

would have mandated treatment only of hazardous wastes containing

significant concentrations of hazardous constituents, and required

treatment to levels that would be ``protective'', defined as

satisfying the no-migration test. EPA does not view these

differences as being critically different from the enacted section

3004(m), and so views the Senate legislative history as being

relevant to ascertaining Congressional intent regarding dilution of

hazardous constituents as a means of achieving treatment standards.

\5\``The Committee intends that dilution to a concentration less

than the specified thresholds by the addition of other hazardous

waste or any other material during waste handling, transportation,

treatment, or storage, other than dilution which occurs as a normal

part of a manufacturing process, will not be allowed. Such hazardous

waste would still be prohibited from land disposal.'' H. Rep. No.

198, 98th Cong. 1st sess. 34; see also id. at 38 (``(t)he

Administrator may also impose limitations on the use of waste

dilution to avoid disposal restrictions. The late (sic) is

particularly important where regulations are based on concentrations

of hazardous constituents.'')

The House Bill did not expressly require pretreatment before

disposal, the scheme of the enacted law, but nevertheless

illuminates Congressional intent not to allow dilution as a means of

treating hazardous constituents.

---------------------------------------------------------------------------

Other legislative history indicates that Congress intended for EPA

to adopt technology-based treatment standards: ``The requisite levels

o(r) methods of treatment established by the Agency should be the best

that has (sic) been demonstrated to be achievable. This does not

require a BAT-type process * * *. The intent here is to require

utilization of available technology in lieu of continued land disposal

without prior treatment.'' 130 Cong. Rec. S 9178 (daily ed. July 25,

1984) (statement of Sen. Chaffee introducing the amendment that became

section 3004(m)); see also 130 Cong. Rec. 20803 (1984 (statement of

Sen. Moynihan on section 3004(m)): ``The requisite levels o(r) methods

of treatment established by the Agency should be the best that has been

demonstrated to be achievable.'' The legislative history also indicates

that Congress intended treatment to result in destruction of total

cyanide and organic hazardous constituents. 130 Cong. Rec. S 9178

(statement of Sen. Chaffee). Dilution of hazardous constituents, of

course, is not BDAT, and does not destroy or remove hazardous

constituents.

The legislative history consequently strongly supports reading

section 3004(m) as not allowing dilution of hazardous constituents.

C. Judicial Opinions

The D.C. Circuit's position in the Third Third opinion is

potentially contradictory on this point. At points in the opinion, as

noted above, this court states that dilution could satisfy section

3004(m) requirements, perhaps even for hazardous constituents.

Elsewhere, however, the court unequivocally stated that dilution does

not satisfy section 3004(m) because hazardous constituents are not

destroyed, removed, or immobilized:

We wish to make explicit the impact of our holding * * *. First,

where dilution to remove the characteristic meets the definition of

treatment under section 3004(m)(1), nothing more is required.

Second, where dilution removes the characteristic but does not

``treat'' the waste by reducing the toxicity of hazardous

constituents, then the decharacterized waste may be placed in a

surface impoundment if and only if the resulting CWA treatment fully

complies with RCRA section 3004(m)(l).

In other words, the material that comes out of CWA treatment

facilities that employ surface impoundments must remove the hazardous

constituents to the same extent that any other treatment facility that

complies with RCRA does. 976 F. 2d at 23. Dilution thus cannot be used

as the sole means of treating hazardous constituents because it does

not remove hazardous constituents from the waste. The court made this

explicit in a footnote quantifying the above-quoted passage:

To illustrate RCRA's focus on treatment of the hazardous

constituents in a waste, consider a waste stream hazardous by

characteristic for cadmium. Both the [[Page 11708]] characteristic

and treatment levels for the hazardous waste are l.0 mg/l. Assume

that a stream of 3.0 mg/l daily deposits 1000 liters into a

treatment facility. A RCRA treatment facility would remove at least

2000 mg of cadmium from the waste stream. A CWA must do the same--

although to do so it will have to process at least three times as

much water (because dilution of 1000 liters of 3.0 mg/l to just

below the characteristic level will yield just over 3000 liters).

Allowing dilution alone would decharacterize the waste, but it would

not reduce the total amount of cadmium entering the environment. 976

F 2d at 23 n. 8.

Applying this same standard to injection of decharacterized

wastewaters into Class I nonhazardous injection wells, the court

stated:

(W)e hold that dilution followed by injection into a deep well

is permissible only where dilution itself fully meets section

3004(m)(l) standards or where the waste will subsequently meet

section 3004(m)(l) standards. Because deep well injection is

permanent land disposal, our holding in effect permits diluted

decharacterized wastes to be deep well injected only when dilution

meets the section 3004(m)(l) standard or where the deep well secures

a no-migration variance. 976 F. 2d at 25. This means that ``any

hazardous waste (must) be treated in such a way that hazardous

constituents are removed from the waste before it enters the

environment.'' 976 F. 2d at 24 (emphasis added). Since injection

wells are disposal units and do not engage in treatment, they are

incapable of satisfying this standard. Id. at 25.

EPA believes that the thrust of the opinion is to require treatment

of hazardous constituents before land disposal. The court's explicit

and quantified insistence that treatment standards are to reduce mass

loadings of hazardous constituents makes this clear. If the court

intended to allow dilution as the sole means of treating hazardous

constituents, it would at least have discussed how this squared with

statutory language, goals and objectives, and legislative history.

Thus, the Agency does not accept the commenters' reading of the

opinion. Today's rule consequently proposes that prohibited,

decharacterized wastes be treated so that underlying hazardous

constituents are removed, destroyed, or immobilized before final

disposal into the environment.

III. Integration of BDAT With Other Agency Actions

As EPA makes decisions in this LDR Phase III rule on so-called end-

of-pipe equivalence for direct and indirect dischargers treating

prohibited, decharacterized wastes in surface impoundments, there are

related Agency rulemaking activities warranting mention: The LDR Phase

IV rule, which will consider leaks, sludges, and air emissions from

surface impoundments; the Hazardous Waste Identification Rule (HWIR),

which provides a risk based assessment of when wastes are hazardous,

and may result in capping the extent of treatment of some hazardous

constituents; the Pulp and Paper and Pharmaceutical Industries effluent

limitations guidelines which affect industries using impoundment-based

treatment systems to manage decharacterized wastes; and rules for

control of hazardous air pollutants issued under the Clean Air Act

(CAA), which regulate similar air emissions. These interrelationships

are explored below, so that the public can be made aware of how future

regulations may impact decisions to be made in response to this rule.

Comments and data are requested on the LDR Phase IV options discussed

in this part.

A. Phase IV LDRs--Cross-Media Transfer and Equivalency Issues

1. Cross-Media Implications

The LDR Phase IV rule will consider equivalent treatment for

centralized wastewater treatment systems with impoundments managing

wastewaters that are decharacterized. The principle potentially at

issue is the transfer of pollutants from one media to another without

being destroyed, removed, or immobilized. Treatment of the wastewaters

transfers the pollutants , to groundwater from leaks, or to the air.

The transfer of pollutants from one media to another is an Agency-wide

concern. The environment is not well served by piecemeal regulation

which simply transfers pollutants, nor is industry well-served by

piecemeal regulation. The Agency's preference is to look at these

situations holistically so that pollutants are not simply transferred,

and so that the Agency provides industry with a coordinated

understanding of the ``environmental requirements'' for all media. How

the Agency pursues this preference has not been decided, but the

following discussion outlines some of the issues being examined.

2. Background of Equivalency Issues EPA is Considering for LDR Phase IV

EPA is considering, in addition to evaluating equivalence at the

point of ultimate discharge to surface waters or to a Publicly-Owned

Treatment Works (POTWs) (``end-of-pipe equivalence''), conditions for

determining equivalence of treatment for decharacterized wastes managed

in nonhazardous waste (subtitle D) surface impoundments which would

involve consideration of whether treatment is not equivalent due to

cross-media transfers of untreated hazardous constituents. In

evaluating the above approaches, EPA is looking both at RCRA and other

Agency authorities and programs that would ensure protection and

provide control equivalent to RCRA.

The Agency has not made any determination as to the best manner to

implement the standard enunciated in the opinion. It is certain that

the opinion requires at least a demonstration of end-of-pipe

equivalence, which will be accomplished when the treatment standards in

today's proposed rule are finalized. Whether it requires more is

unclear. The opinion appears to focus on treatment of wastewaters. For

example, the court stated ``treatment of solid wastes in a CWA surface

impoundment must meet RCRA requirements prior to ultimate discharge

into waters of the United States or publicly owned treatment works * *

*.'' 976 F. 2d at 20, emphasis added). See also id. at 7, 20 (focus on

treatment of waste ``streams'', i.e. the liquids in the impoundment);

23 n. 8 (reduction of mass loadings of hazardous constituents of waste

stream entering and exiting an impoundment); 24 (court indicates that

decharacterized wastes are not held permanently in impoundments, a

statement that is uniformly correct for wastewaters but not wastewater

treatment sludges); 24 (court focuses on treatment of ``liquids'' in

impoundments). At one point, the court also noted, in distinguishing

between subtitle C and subtitle D surface impoundments, that sludges in

subtitle C impoundments require further management in accord with

subtitle C, id. at 24, n. 10, perhaps suggesting by negative

implication that sludges in subtitle D impoundments do not.

Equally important, the court held that ``RCRA requires some

accommodation with (the) CWA'', id. at 20, see also id. at 23,

indicating that to some degree RCRA need not mandate a wholesale

disruption of existing wastewater treatment impoundments, provided the

CWA treatment system really achieves treatment equivalent to RCRA

section 3004(m) treatment: ``In other words, what leaves a CWA

treatment facility can be no more toxic than if the waste streams were

individually treated pursuant to the RCRA treatment standards.'' Id.

On the other hand, the opinion can be read more broadly to

encompass requirements respecting surface impoundment integrity. The

court's fundamental concern with dilution, echoing the requirements of

section [[Page 11709]] 3004(m), is that dilution does not reduce or

destroy hazardous constituents, and thus does not prevent those

constituents from entering the environment. Id. at 22, 24, 29-30; see

also id. at 23 n. 8 stressing the court's holding that total mass

loadings of pollutants ``entering the environment'' must be reduced in

order to comply with section 3004(m).

Moreover, the court distinguished a number of times between

temporary placement of diluted wastes in impoundments for treatment and

permanent disposal in land disposal units, stating that only the

temporary placement represents a satisfactory accommodation between

RCRA and the CWA. Id. at 24, 25. To the extent hazardous constituents

leak or volatilize from impoundments, it can be argued that permanent

disposal of untreated hazardous constituents is occurring.

The schedule for issuing the LDR Phase III and IV rules are both

subject to settlement agreement, and, according to the schedule

established by these settlement agreements, will be proposed only six

months apart. Therefore, industry will be able to evaluate the LDR

Phase III proposed end-of-pipe equivalency requirements while keeping

in mind the upcoming LDR Phase IV rule which must consider sludges,

leaks, and air emissions from treatment surface impoundments. The

Agency has not yet decided how to pursue the potential equivalency

issues related to sludges, leaks, or air emissions; however, the Agency

is taking this opportunity to discuss the issues and potential options

in these three areas. Furthermore, the Agency solicits data

characterizing sludges, leaks, and air emissions from surface

impoundments,

a. Sludges. Characteristic wastewaters managed in CWA and CWA-

equivalent impoundment-based systems invariably are treated to generate

a sludge. Under EPA's existing interpretations of the rules, such

sludges are usually considered to be prohibited wastes only if they are

themselves hazardous. 55 FR at 22661. This is because generation of a

new treatability group is considered to be a new point of generation

for purposes of determining where LDR prohibitions attach. The Agency

has not determined whether the court decision could or should be read

to invalidate this interpretation (although the Agency adopted a

``waste code carry through'' approach for the characteristic wastes

addressed in the emergency interim final rule). This will be an issue

that must be resolved in the LDR Phase IV rule.

In addressing this issue, it should be noted that the LDR treatment

standards for nonwastewaters and wastewaters are by now well

established. There are 521 hazardous waste codes subject to LDR

technology-based treatment standards. In instances where analytical

methods are available, these hazardous wastes are subject to UTS that

were promulgated in the LDR Phase II final rule (UTS are, however,

based on treatment standards that have been in effect, in some cases,

since 1986 and thus are well established). While no decision has been

made on whether to regulate these sludges, if the Agency decides to

control sludges from CWA and CWA-equivalent surface impoundments, the

treatment standards (UTS levels) are already in place.

EPA believes that the likely impact of such an approach would be

mixed--that is, some facilities will continue to use surface

impoundments and remove and treat the sludge, if necessary, while

others will move away from the use of surface impoundments. For

example, aggressive biological treatment, such as that typically used

by the petroleum refining industry, may achieve UTS levels as

generated. Sludges from primary treatment in surface impoundments are

more likely to exceed UTS levels. If the Agency decides to control

sludges, such an approach may impose significant costs on the facility.

Subjecting sludges to UTS may encourage pollution prevention and

recycling alternatives to be used prior to placement of wastes in the

impoundment, so that sludge treatment standards are not triggered.

Comments are solicited on these issues.

b. Leaking Surface Impoundments. While hazardous wastes entering

surface impoundments constitute temporary land disposal (because they

are being placed there for treatment), leaks from such impoundments

constitute permanent land disposal. Such permanent land disposal was

clearly a concern of the court. 976 F. 2d at 25-6.

The Agency is considering the following additional controls if the

decision is made to address leaking surface impoundments:

EPA already has UTS limits that could be applied to the influent

into the surface impoundment when it is determined that it leaks

underlying hazardous constituents at levels above UTS. Applying UTS to

the influent would assure that only wastes that have been treated in a

manner equivalent to RCRA treatment are land disposed.

EPA is also considering applying some of the subtitle D municipal

solid waste landfill criteria to address leaking surface impoundments

(Municipal Landfill Rule (56 FR 50978, October 9, 1991). The impacts of

such an approach on aggressive biological surface impoundments may not

be significant. On the other hand, facilities with leaking impoundments

engaged in primary treatment could have to perform some type of action

such as retrofitting, remediating groundwater, or switching to tank

treatment.

A third option being considered is using triggering controls based

on the potential risk of any leak. The Agency could require as a

performance standard that owners demonstrate that the expected leaks

would pose a low level of risk to nearby receptors. Facilities would

have the flexibility to change the influent, install engineering

controls, or limit potential exposure in order to comply with this

performance standard.

c. Air Emissions. Achieving wastewater or nonwastewater standards

by merely transferring hazardous constituents to the air may be

inconsistent with the court opinion in that excessive, uncontrolled

volatilization could be viewed as unequivalent treatment, or unsafe

treatment conditions. For example, treatment of volatile organic

compounds in surface impoundments may achieve compliance with a

wastewater treatment standard by simply transferring pollutants to the

air.

If EPA should determine that the court's opinion should be read to

require control of excessive volatilization from impoundments to

demonstrate equivalent treatment, one option is deferral to CAA NESHAP

standards, such as the Benzene Waste Operations NESHAPs and the HON.

The Benzene NESHAPs were promulgated on January 17, 1993, and the HON

was promulgated on April 22, 1994 (59 FR 19402). The Agency will

explore further whether the CAA standards for hazardous air pollutants

provide equivalent protection or control of the hazardous constituents

of concern.

Another option is extend the applicability of existing air emission

controls in RCRA--the recently promulgated RCRA Air Emission Standards

(59 FR 62585 (Dec. 6, 1994)). The RCRA Air Emission Standards are self-

implementing and are applicable to 90-day units at hazardous waste

generator sites. These standards do not apply to surface impoundments

which receive waste that was hazardous at the point of generation but

was ``decharacterized'' (i.e., rendered nonhazardous) before being

placed in the surface impoundment.

The approach EPA is considering in the second option is a ``target

mass removal'', which would ensure that hazardous constituents are

effectively [[Page 11710]] removed or destroyed and that standards are

not achieved through dilution or air emissions. A key to this approach

is that all waste streams commingled with the hazardous waste streams

are accounted for, and calculations are made to ensure that dilution is

not credited toward achieving the standard. The target mass removal

approach is to identify a hazardous waste at its point of generation

and determine the mass of hazardous constituents that must be removed

to meet UTS. The mass of constituents removed can be calculated by

comparing a post-treatment waste determination to the point of

generation waste determination. An alternative is to calculate the

percent reduction of hazardous constituents that is required to meet

the standard, and ensure that associated treatment devices operate at

that level of efficiency. Application of this approach could also

address the issue of nonamenable waste discussed in Section VI of this

preamble. Comments are solicited on the application of this approach.

The likely impacts of establishing air emission requirements are

that facilities will pursue pollution prevention, recycling, steam

stripping or other treatment to remove volatile organics prior to

treatment in surface impoundments. Under this approach, hazardous

constituents would either need to be removed prior to entering the

surface impoundment, or the impoundment would have to be retrofitted in

a way that prevents escape of air emissions.

Comments and data are solicited on options for addressing these

three areas of potential cross media transfer from wastewater treatment

surface impoundments. Comments and data are also solicited on potential

costs and human health benefits.

B. The Hazardous Waste Identification Rule (HWIR)

A recurring concern expressed by many commenters is the

relationship between technology-based and risk-based RCRA limits. EPA

has established technology-based limits for all LDR rules and will

continue to do so in the LDR Phase III rule. The Agency is considering

the establishment of risk-based levels, however, under the HWIR that is

scheduled to be proposed in the fall of 1995.

The integration of the two approaches could impact how facilities

comply with all LDR treatment standards. For example, if the HWIR risk-

based limits are determined to minimize threats to human health and the

environment, when they are higher than the LDR standards (less

stringent), they will satisfy RCRA section 3004(m) and the waste would

not have to be treated to meet the LDR technology-based limits. HWTC

III, 886 F. 2d at 362. Integration of the LDR and HWIR will be further

addressed in the HWIR rulemaking process.

C. Water Rules--the Pulp and Paper and Pharmaceutical Industries Rules

The LDR Phase III end-of-pipe RCRA wastewater treatment standards

(i.e., the standards which will satisfy the end-of-pipe equivalence

standard enunciated by the court) being proposed today will be applied

at the same location that CWA effluent limitation guidelines and

pretreatment standards are currently applied. EPA is currently amending

effluent limitation guidelines and standards for two industries that

use surface impoundments extensively: the pulp and paper and the

pharmaceutical industries. Both of these rules are considering in-

process limitations of the highly-volatile constituents.

The combined CWA and CAA Pulp and Paper rule was proposed on

December 17, 1993 (58 FR 66077). The Pharmaceutical Industry effluent

guidelines are scheduled to be proposed by February 1995. One key

issue, with respect to both of these industry categories, is the timing

of these amended effluent guidelines and standards in relation to

promulgation of LDR Phase III standards. EPA believes that these

amended guidelines and standards should establish end-of-pipe

equivalence. However, these amended rules may not be promulgated or

effective until after this LDR Phase III rule takes effect. For reasons

discussed later in today's preamble, however, EPA is proposing to wait

until the amended rules for these industrial categories take effect

before establishing end-of-pipe equivalence standards for these

industries.

IV. End-of-Pipe Treatment Standards

A. EPA's General Approach to Setting Treatment Standards and Its

Relation to the End-of-Pipe Standards Proposed Today

In the recently-promulgated LDR Phase II rule, EPA significantly

simplified the existing treatment standards by adopting Universal

Treatment Standards (UTS). 59 FR 47982 (September 19, 1994). These

standards apply the same concentration limit for the same constituent

in all prohibited wastes. The Agency believes these standards are

typically achievable for all prohibited wastes, and greatly improve the

implementation of the LDR program by reducing the numbers of different

treatment standards from thousands to essentially one per constituent.

That being said, however, the Agency is nevertheless proposing

today that UTS not apply to hazardous constituents in decharacterized

wastewaters discharged by CWA facilities subject to the rule so long as

the facility is subject to an appropriate CWA technology-based or water

quality-based standard or limitation for that hazardous constituent. As

explained more fully in section B below, the Agency believes that such

CWA limitations and standards satisfy RCRA section 3004(m) requirements

and therefore that the best means of integrating RCRA and CWA

requirements is to have the CWA limitation or standard be the RCRA

treatment standard as well. This choice by the Agency, should it be

finalized, should not be viewed as any retreat from general

applicability of UTS. Indeed, as proposed elsewhere in this preamble,

EPA is proposing to apply UTS to various newly identified and listed

wastes, as well as to prohibited decharacterized wastes injected into

Class I nonhazardous injection wells.

B. End-of-Pipe Treatment Standards for Clean Water Act and Equivalent

Wastewater Treatment Systems

As discussed before, EPA must impose treatment standards on wastes

that heretofore have not been subject to RCRA regulation. Both RCRA and

CWA programs require treatment notification, monitoring, and

enforcement; however, they do so using different procedures. This rule

proposes an approach, discussed in the following subsections, that

integrates requirements under both statutes to the maximum extent

possible.

The nonhazardous waste surface impoundments in CWA and CWA-

equivalent systems currently have no RCRA permit. For CWA systems, the

discharge into navigable waters are subject to a NPDES permit, while

discharges to POTWs are subject to pretreatment standards. EPA is today

proposing to require that the treatment standard be met at the same

point that the NPDES and pretreatment limits are required to be met:

Generally, at end-of-pipe. CWA-equivalent systems may be subject to

state or local permits, and would be subject to the treatment standards

before final discharge to the land.

[[Page 11711]]

1. CWA Standards and Limitations as RCRA Section 3004(m) Treatment

Standards

RCRA section 1006(b) requires EPA (among other things) to integrate

provisions of RCRA and the CWA when implementing RCRA and to avoid

duplication to the maximum extent possible with CWA requirements. In

keeping with this requirement, EPA is proposing to implement the end-

of-pipe equivalency standard in the court's opinion so that a

technology-based or water quality-based CWA standard for an underlying

hazardous constituent in a CWA facility's discharge will also be

considered to be the RCRA BDAT treatment standard for that constituent.

(If a CWA standard for an underlying hazardous constituent is not

included in the CWA permit, the facility must meet UTS at end-of-pipe.

See further discussion in the next subsection.) Consequently,

satisfying the CWA standard or limitation for that constituent will

also satisfy RCRA. Thus, for example, if a facility managing

decharacterized wastes containing benzene has an NPDES permit with a

limitation for benzene which reflects Best Available Technology (BAT),

that limitation would also satisfy RCRA LDR requirements. In addition,

the facility would not be subject to a separately enforceable RCRA

standard for benzene. In order to limit the amount of potential

administrative duplication, EPA is proposing that the standard remain

enforceable only under the Clean Water Act.

EPA is proposing that a technology-based CWA limitation or standard

for a hazardous constituent satisfies RCRA because such a limitation or

standard best reflects the capability of best treatment technologies to

treat a specific industry's wastewater (or, when the limitation is

determined by a permit writer using Best Professional Judgment, a

specific plant's wastewater). The RCRA UTS for wastewaters were

developed by transferring performance data from various industries, and

thus EPA need not make that same transfer when industry-specific (or

plant-specific) wastewater treatment data is available. (EPA notes,

however, that the UTS reflect treatment of wastewater matrices that are

particularly difficult to treat, and hence that the Agency's conclusion

that these standards are typically achievable is sound.)

It is also reasonable for water quality-based limitations to

satisfy RCRA requirements. These limitations must be at least as

stringent as the limitations required to implement an existing

technology-based standard. (See CWA section 301(b)(1)(c).) Even where

there is no existing BAT limitation for a toxic or nonconventional

pollutant, a permit writer must determine whether BAT would be more

stringent than the applicable water quality-based limitation, and

again, must apply the more stringent of the two potential limitations.

(40 CFR 125.3(c)(2).) Consequently, a water quality-based limitation

not only reasonably satisfies RCRA section 3004(m) requirements, but

can be viewed as a type of site-specific minimize threat level.

If a facility has received a Fundamentally Different Factors (FDF)

variance, EPA is proposing that the limitations established by that

variance also satisfy RCRA requirements. Limitations established by the

FDF variance process are technology-based standards reflecting

facility-specific circumstances, and hence can appropriately be viewed

as BDAT as well, just as with RCRA treatability variance standards. See

51 FR at 40605 (Nov. 7, 1986).

EPA also believes that there are adequate constraints in the CWA

implementing rules to prevent these end-of-pipe standards from being

achieved by means of dilution. First, many of the effluent limitation

guidelines and standards regulate the mass of pollutants discharged,

and thus directly regulate not only the concentration of pollutant

discharged but the degree of wastewater flow as well. Where rules are

concentration-based, NPDES permit writers can set requirements which

preclude excessive water use, and EPA has so instructed permit writers.

(See 58 FR 66151, December 17, 1983, encouraging permit writers to

estimate reasonable rate of flow per facility and factor that flow

limit into the permit.) These permit conditions can take the form of

best management practices, explicit mass limitations, and conditions on

internal waste streams. 40 CFR 122.44(k); 122.45(f), (g) and (h).

Indirect dischargers are also subject to specific CWA dilution rules in

both the general pretreatment rules and the Combined Wastestream

Formula (as well as through many of the categorical standards). 40 CFR

403.6(d) and (e). Many of the guidelines and standards also preclude

addition of stormwater runoff to process wastewater to preclude

achieving treatment requirements by means of dilution. The Agency is

accordingly of the view that end-of-pipe equivalence would be achieved

by treatment that removes or destroys hazardous constituents, as

required by section 3004(m). (This discussion, of course, still leaves

open the questions, left for the LDR Phase IV rule, of how existence of

leaks, air emissions, or depositions of constituents in sludges affects

determinations of equivalent treatment and similar issues.)

With respect to indirect dischargers, EPA is further proposing that

national categorical standards or, potentially, plant-specific

standards contained in control mechanisms (i.e. contracts between

industrial users and the POTW or other governmental entity) satisfy

RCRA where these standards reflect pass through findings. If it is

found that a particular pollutant/hazardous constituent will not pass

through to navigable waters because of efficacious treatment by the

POTW, there will be full-scale treatment of the pollutant/hazardous

constituent before its final release into the environment. EPA is

proposing that such full-scale treatment satisfies the court's

equivalency test. EPA is also proposing to add such pass-through

situations as a valid ground for indirect dischargers to obtain a RCRA

treatability variance, for the same reasons.

However, the Agency is not proposing that standards based on

interference with POTW operations be deemed to also satisfy RCRA

requirements. Interference findings reflect the effect the pollutant

may have on overall POTW treatment, not necessarily treatment of the

particular constituent. Because the relationship of an interference-

based standard with treatment of a particular pollutant is tenuous, the

Agency does not believe such a standard can be said to be equivalent to

RCRA treatment. The Agency solicits comment on the prevalence of

interference-based standards.

2. Implementation When CWA Standards and Limitations Will Be the

Exclusive Standard

a. Direct Dischargers

EPA is proposing that if a direct discharger subject to this rule

(i.e. generating ICRT wastes containing hazardous constituents at

concentrations exceeding UTS at the point the wastes are generated and

treating those wastes in surface impoundments) has an NPDES permit

containing a limitation for that pollutant based on BAT, New Source

Performance Standards, or a more stringent water quality standard, or

is regulated through controls on an indicator pollutant, then there are

no RCRA requirements other than documentary recordkeeping. An indicator

pollutant is a pollutant for which control of that pollutant is

considered to indicate control of a [[Page 11712]] specific

constituent. For example, total phenols is an indicator for a specific

phenol. The Agency solicits comments on specific circumstances where a

pollutant is an indicator of a specific underlying hazardous

constituent.

If the existing NPDES permit either does not contain a limitation

for the pollutant or does not regulate the pollutant through an

indicator, a facility would have several choices. It could do nothing,

in which case the hazardous constituent would be subject to the UTS,

and compliance would be monitored at end-of-pipe (unless the facility

chooses to segregate the wastestreams for treatment, in which case

compliance would be measured in the segregated stream after treatment).

These standards would be implemented by rule, and thus would not be

embodied in a permit. Enforcement would be solely under RCRA.

In the alternative, a facility could seek amendment of its NPDES

permit pursuant to Sec. 122.62(a)(2), requesting that the applicable

permitting authority modify the permit to add limits for the underlying

hazardous constituents reflecting BAT for that pollutant at the

facility. Assuming proper design and operation of the wastewater

treatment technology, a permit writer in such a case could modify the

permit to add a limitation for the pollutant based on Best Professional

Judgement reflecting actual treatment (40 CFR 125.3(c)). Modification

requests would be processed pursuant to the procedures found at

Sec. 124.5. The modified permit limitation would be a CWA requirement

and enforceable solely under that statute.

A final alternative is for the facility to seek a RCRA treatability

variance. EPA is proposing to amend the grounds for granting such a

variance to include situations where a facility is treating

decharacterized wastes by treatment identified as BAT, the technology

is designed and operated properly, but is not achieving the UTS (see

proposed amendments to Sec. 268.44(a)). The amendment would also apply

to indirect dischargers properly operating technology identified as the

basis for their PSES (Pretreatment Standard for Existing Sources) or

their PSNS (Pretreatment Standard for New Sources) standard.

b. Indirect Dischargers

The same alternatives exist for indirect dischargers. First, if an

underlying hazardous constituent is not regulated nationally by a PSES,

PSNS, or by a local limit, and so therefore becomes subject to the UTS

for that constituent, that UTS would be enforced as a RCRA standard. In

addition, if there is no pretreatment standard (i.e., PSES/PSNS) for an

underlying hazardous constituent, because the Agency determined that

there was no pass through, then the RCRA standard for that underlying

hazardous constituents does not apply. However, in cases where an

underlying hazardous constituent is not already subject to categorical

PSES, categorical PSNS, or to a local limit in a control mechanism

reflecting PSES or PSNS-level treatment, water quality, or pass

through, the control mechanism between the indirect discharger and the

applicable control authority would have to be modified in order to

avoid application of the UTS by rule. Although procedures for modifying

control mechanisms are less institutionalized than those codified for

modifying direct dischargers' permits, the Agency initially does not

believe this will pose a significant logistical problem because the

number of indirect dischargers significantly affected by this rule

(i.e. those treating decharacterized wastewaters in surface

impoundments before discharge to a POTW where categorical PSES or local

limitation does not address a particular hazardous constituent, and

discharging greater than de minimis levels of hazardous constituents)

appears to be small. The Agency continues to solicit information on the

number of indirect dischargers so affected, however.

EPA also solicits comment on the best means of applying the

equivalency requirement to industries where the Agency is also

undertaking significant revisions to applicable CWA requirements on a

somewhat slower schedule than this rule. The Agency has in mind

particularly the forthcoming amended standards for the pharmaceutical

and pulp and paper industrial categories.\6\ Amended BAT/PSES standards

for these industries are likely to encompass most or all of the

underlying hazardous constituents typically found in these industries'

wastewaters, and will reflect EPA's best judgement of the appropriate

optimized technology-based controls for those pollutants, as well as

the time needed to implement those controls. The Agency's initial

preference, in keeping with the requirements of RCRA section 1006, is

to wait until those controls are in place before evaluating end-of-pipe

equivalency for those industries. The Agency solicits comment on this

matter.

\6\The Pharmaceutical Rule is scheduled to be proposed on

February 28, 1995; the Pulp and Paper Rule was proposed on December

17, 1993 (58 FR 66077).

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Finally, if the facility treats to UTS and does not modify its CWA

permit or control mechanism to include a CWA standard/limitation for an

underlying hazardous constituent, EPA is proposing minimal record-

keeping requirements, under RCRA authority. EPA is proposing that

generators can use generator knowledge to identify the underlying

hazardous constituents present at the point of generation of the ICRT

wastes which are not covered by a CWA limitation and hence must be

treated to meet UTS (assuming no permit modification, etc.). Monitoring

at potentially hundreds of points of generation would be unnecessarily

burdensome and so is not being proposed as a requirement. EPA is

proposing that this information be kept on-site in files at the

facility. EPA proposes that the facility will then monitor compliance

with the UTS standard for each of these constituents at the point of

ultimate discharge on a quarterly basis, and that the results of this

monitoring also be kept in the facility's on-site files. Monitoring

compliance with UTS at the point of discharge provides appropriate

assurance of effective treatment. Failure to comply with the RCRA UTS

standard must be reported by the facility to the EPA Regional or

authorized state RCRA personnel.

Finally, the Agency is proposing to grant a two-year national

capacity variance to allow facilities time to repipe and build on-site

treatment, or to modify their CWA permit.

EPA is proposing these same requirements for documenting compliance

for zero dischargers without NPDES permits who are affected by this

rule. The absence of a permit necessitates some alternative means of

documenting compliance, and the scheme outlined above seems to be the

least burdensome scheme which would still provide a reasonable means of

enforcing this rule.

C. Treatment Standards for Class I Nonhazardous Injection Wells

1. Introduction

Generally, facilities injecting decharacterized ICRT wastes into

Class I nonhazardous injection wells do not treat their waste beyond

removing the characteristic by mixing and diluting, plus some filtering

of solids. There are as many as 149 such facilities. The average flow

of a typical Class I nonhazardous well is estimated at 107,000 gallons/

day. Typically, the volume of the hazardous wastestreams is relatively

small (less than 25%) compared to the volumes of

[[Page 11713]] nonhazardous wastestreams being co-injected.

EPA is proposing that these characteristic wastestreams be

considered prohibited at the point they are generated. The Agency is

further proposing that underlying hazardous constituents in these

prohibited wastes be treated to meet UTS levels before the waste is

injected. The treatment must destroy, remove, or immobilize the

underlying hazardous constituents in the waste that are present in

concentrations exceeding UTS at the point the wastes are generated. It

may be that in some situations, one type of treatment may pose more

risk than another type, notwithstanding that it removes or destroys

hazardous constituents to a greater degree. In such cases, facilities

may seek a treatability variance to allow the use of the less

aggressive treatment technology (assuming such treatment technology

satisfies the 3004(m) standard). In such a situation, the technology

posing greater risk could be considered to be ``not appropriate to the

waste,'' (see 40 CFR 268.44(a)) and a variance could be granted to

allow the use of alternative treatment. EPA believes this result

satisfies the court's mandate in the Third Third opinion.

EPA believes that the decision in the Third Third opinion

necessitates revising the applicability of the 40 CFR Part 148

requirements, Hazardous Waste Injection Restrictions, as they now apply

to Class I nonhazardous injection wells. The Agency is clarifying in

proposed revisions to 40 CFR 148.1, that owners and operators of Class

I nonhazardous wells must determine, under certain circumstances,

whether the LDRs now apply to their facilities. Class I wells which

inject nonhazardous wastes at the point of injection must now determine

if any of these wastes exhibited a characteristic of hazardous waste at

the point they were generated. Accordingly, EPA is proposing to amend

Sec. 148.1 and redefine the purpose, scope, and applicability of the

Part 148 regulations.

To conform with the Court's ruling the Agency is also proposing to

include Class I nonhazardous wells within the scope of the dilution

prohibition at 40 CFR 148.3. Class I wells thus may not impermissibly

dilute their hazardous waste streams in order to substitute for or

avoid treatment levels or methods established in the LDRs.

2. Compliance Options for Class I Nonhazardous UIC Wells

In order to comply with today's requirements, facilities could

segregate their characteristic streams for separate treatment.

Treatment could occur either on-site or off-site. After the

characteristic wastes have been treated to meet UTS, they can be land

disposed (either by injection or by some other means). A facility could

also treat the aggregated mass of wastewaters (i.e. the commingled

characteristic and non-characteristic wastewaters) to meet UTS before

injection.

Another option is for the facility to seek a no-migration variance

under Sec. 148.20. Thus, EPA is proposing today to amend the provisions

under Sec. 148.20 to allow facilities to seek a no-migration variance

for their injection well(s). This amendment, however, would simply

formalize EPA's existing interpretation that no-migration variances are

already available for such wells. See 59 FR at 48013 (September 19,

1994). If these facilities submit a no-migration petition to EPA and

effectively demonstrate to EPA that their formerly characteristic

wastes (including any hazardous constituents contained in those wastes)

will not migrate from the injection zone for 10,000 years or no longer

pose any threat to human health and the environment because the wastes

are attenuated, transformed, or immobilized by natural means in the

injection zone, then they may continue injection without further

treatment.

Each no-migration petition has, to date, taken on average 3 years

to process. This time may increase if the Agency receives a large

number of petitions. EPA continues to emphasize, however, that

interested petitioners need not wait for this rule to be promulgated

before pursuing the petition process. Petitions for a no-migration

variance for Class I nonhazardous wells receiving decharacterized

wastes can be received and evaluated now. Id.

EPA is also proposing to extend the availability of case-by-case

extensions of the effective date to Class I nonhazardous injection

facilities for any applicable Part 148 prohibition. Proposed revisions

to Sec. 148.1(c)(1) and Sec. 148.4 will allow Class I well owners and

operators on a case-specific basis to follow procedures of Sec. 268.5

to receive a one-year extension, renewable for an additional year, from

the effective date of the prohibitions, in order to acquire or

construct alternative treatment capacity.

EPA today is proposing two other means for facilities with Class I

UIC wells to comply with the LDR requirements. The first involves

removing the same mass of hazardous constituents from streams to be

injected through pollution prevention rather than pre-injection

wastewater treatment. The second involves creating an exception for

situations when the characteristic wastestreams make only a de minimis

contribution to the waste mixture being injected. These two proposed

options are described below in more detail.

3. Pollution Prevention Compliance Option

The D.C. Circuit stressed that the equivalency test, if enunciated,

is required to ensure that mass loadings of hazardous constituents to

permanent disposal units are reduced to the same extent they would be

if a prohibited waste was treated exclusively under a RCRA regime. 976

F. 2d at 23 n. 8. EPA is proposing that these reductions in mass

loadings can be achieved by removing hazardous constituents from any of

the wastestreams that are going to be injected, and that these

reductions in mass loadings can be accomplished by means of pollution

prevention.\7\ Thus, if a facility can, for example, make process

changes that reduce the mass of cadmium by the same amount that would

be removed if the prohibited wastestream was treated to satisfy UTS,

the facility would have satisfied LDR requirements. The facility would

thus no longer have to demonstrate that it is meeting UTS concentration

levels.

\7\In a 1992 memorandum from F. Henry Habicht, then EPA Deputy

Administrator, and reiterated in a June 15, 1993 memorandum from

Carol Browner, EPA Administrator, the Agency has defined pollution

prevention as ``source reduction'' (as defined in the 1990 Pollution

Prevention Act (PPA)), and other practices that reduce or eliminate

the creation of pollutants through (1) increased efficiency in the

use of raw materials, energy, water, or other resources; or (2)

protection of natural resources by conservation. The PPA defines

``source reduction'' to mean any practice which (1) reduces the

amount of any hazardous substance, pollutant, or contaminant

entering any waste stream or otherwise released into the environment

(including fugitive emissions) prior to recycling, treatment, or

disposal; (2) reduces the hazards to public health and the

environment associated with the release of such substances,

pollutants, or contaminants.

``Source reduction'' includes: equipment or technology

modifications, process or procedure modifications, reformulation or

redesign of products, substitution of raw materials, and

improvements in housekeeping, maintenance, training, or inventory

control. Recycling, energy recovery, treatment, and disposal are not

included in the definition of pollution prevention in the PPA.

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Under this option, a hazardous constituent could be removed from

either the hazardous or nonhazardous portion of the injectate, and

could be removed before a waste is generated. The result would be that

the mass loading into the injection unit would be reduced by the same

amount as it would be reduced by treatment of the prohibited,

characteristic portion of the injectate. [[Page 11714]]

The mass/day reduction of a particular underlying hazardous

constituent can be calculated by comparing the injected baseline with

the allowance. The injected baseline is determined by multiplying the

volume/day of hazardous waste generated (and subsequently injected)

times the concentration of hazardous constituents prior to the

pollution prevention measure. The allowance is determined by

multiplying the volume/day of a hazardous constituent generated/

injected times the UTS for that constituent. The difference between the

injected baseline and the allowance is the mass/day reduction.

After successful employment of a pollution prevention measure, the

facility must demonstrate that the injected mass achieves the required

mass/day reduction. The post-pollution prevention measures would be

corrected for production variations by multiplying the mass/day

reduction times the ratio of the pre-pollution prevention production

baseline divided by the production on the day of sampling after the

pollution prevention is successfully implemented. A correction for

production variations is needed because the amount of an underlying

hazardous constituent in the injectate is dependent upon the level of

production. If the initial reading is taken on a day of low production,

and the post-pollution prevention reading is taken on a day of high

production, then without the correction factor the mass/day reduction

calculation would be an underestimate.

The following is an example to illustrate this discussion:

Facility X is daily injecting 1 lb. of benzene (an underlying

hazardous constituent in a characteristically hazardous wastestream).

The mass allowed for benzene (based on the volume of the hazardous

wastestream they inject and the UTS for benzene) is 0.3 lbs. Therefore,

the mass of benzene that needs to be removed in order for Facility X to

be in compliance with the LDR is 0.7 lb.

Facility X decides to use pollution prevention to remove the 0.7

lb. of benzene from their system. Before employing pollution

prevention, Facility X monitors and determines that on a day when they

produce 10 tons of product, 3 lbs. of benzene is being injected. After

employment of pollution prevention, Facility X monitors and determines

that 1 lb. of benzene is being injected. On this day of monitoring they

are producing 5 tons of product. Therefore: 3 lbs.-1* (10/5)=1 lb. of

benzene removed, which means they are in compliance with LDR, since 0.7

lb. was all that was necessary to be removed.

EPA is proposing that the results of the monitoring of the

underlying hazardous constituent concentration and the volume of the

hazardous waste stream being injected, both on the day before

employment of pollution prevention, and the day after successful

employment of pollution prevention, be reported to the EPA Region or

authorized State as a one-time notification. The facility will also

include in this report a description of the pollution prevention method

used. In addition, the facility will monitor and keep on-site records

of the results on a quarterly basis. Quarterly monitoring is already

required under SDWA regulations (40 CFR 146.13(b)). The reporting

requirements for this option will be a one-time notification; however,

if the facility changes its pollution prevention method, they must

repeat the initial monitoring and notify the EPA Region or authorized

State. The Agency is proposing to consider only those pollution

prevention measures taken after the date of publication of this

proposed rule.

EPA is proposing that, at this time, the pollution prevention

alternative as described in this section of the preamble, be available

only for facilities using Class I nonhazardous injection wells. EPA is

not proposing the same alternative for facilities using surface

impoundments because until the LDR Phase IV rules are completed, there

will not be a test as to what comprises equivalent treatment at such

facilities. That is, before EPA determines how such issues as potential

releases to air and groundwater are to be resolved, there is no final

equivalency standard for these facilities. It thus appears to EPA to be

premature to determine how a pollution prevention alternative would fit

into such a scheme. EPA also notes that because surface impoundments

can pose particularly adverse environmental risks, see RCRA section

1002(b)(7) and CWM v. EPA, 919 F. 2d 158 (D.C. Cir. 1992), the Agency

in any case may wish to develop alternative approaches for

decharacterized wastes being managed in such units.

EPA also solicits comment on a number of issues relating to this

option. The first is comment on using other production parameters

besides or in lieu of volume (e.g., mass, square footage, etc.). The

second is comment on use of site-specific non-linear production

relationships and multiple production factors to deal with potential

differences in underlying hazardous constituents produced in the

hazardous and nonhazardous waste streams. Third, EPA solicits comment

on whether more than one day is needed for monitoring pre and post-

employment of the pollution prevention option (i.e., some pollution

prevention methods may require more than one day to show results).

EPA also solicits comment on the best means of ensuring that the

mass reductions achieved through this pollution prevention alternative

are objectively verifiable and enforceable. In particular, EPA solicits

comments on the best means of documenting baseline levels, and whether

flow reductions (as opposed to hazardous constituent removal) should be

allowed as an exclusive means of obtaining the requisite reductions in

mass loadings of hazardous constituents.

Finally, EPA requests comment as to whether it may eventually be

possible to implement this type of alternative by means of a pollutant

trading type of approach, whereby the hazardous constituent being

removed by means of pollution prevention need not be identical to the

hazardous constituent in the characteristic stream. For example,

carcinogenic metals could all be grouped rather than evaluated

individually. This type of approach may add desirable flexibility if

appropriately constructed.

4. De Minimis Volume Exclusion

There is a question of whether EPA should require treatment of

relatively small decharacterized hazardous waste streams injected into

Class I nonhazardous wells when the result will be essentially the same

level of contaminants being injected (and thus risks are not measurably

reduced). Therefore the Agency is proposing to establish a de minimis

volume exclusion for small volumes of formerly hazardous wastes being

injected into these wells along with a greater volume of nonhazardous

waste.

There are two existing LDR de minimis provisions (Sec. 268.1(e) (4)

and (5)). Both are for ignitable and/or corrosive wastes (D001 and

D002); the first is for de minimis losses of D001 or D002 to wastewater

treatment systems of commercial chemical products, while the second is

for de minimis losses of D001 or D002 laboratory wastes. Under the

approach being proposed today, when underlying hazardous constituents

are present in ICRT wastes at concentrations less than 10 times UTS at

the point of generation, and the combination of all of the

characteristically hazardous streams together are less than 1% of the

total flow at point of injection and after [[Page 11715]] commingling

with the nonhazardous streams, and that the total volume of hazardous

streams are no more than 10,000 gallons/day, no segregation and/or

treatment would be required. The 1% total flow criteria is consistent

with the existing de minimis exemption for laboratory wastes

(Sec. 268.1(e)(5)); however, the Agency solicits comment on the 1%

criteria, the 10 times UTS criteria as well as the 10,000 gallons/day

maximum--should these numbers be higher, lower, or dropped?

The Agency intends to continue analyzing collected data that may

provide additional justification for, or alternatively, cause the

Agency to modify any or all of the criteria on which it has based the

de minimis exemption for injected waste. This analysis will be

conducted in conjunction with revising the Regulatory Impact Analysis

for underground injected wastes, and may include additional computer

modeling used in assessing the health risks posed by Class I injection

wells. The Agency may conduct this analysis, for example, by varying

specific parameters in the modeling, such as well pump rates, total

volume of waste injected, and waste concentrations, and by altering

postulated exposure scenarios describing health risks posed by

injection of Phase III wastes. Upon conclusion, the analysis may

support the proposed de minimis criteria or may cause the Agency to

revise them in the final rule. The Agency solicits any comment on this

planned approach and any alternative suggestions.

The Agency is proposing that if a generator determines that he

meets the requirements of the de minimis exemption, that he place a

one-time notice in his files stating the % flow and concentration of

the underlying hazardous constituents, and volumetric flow of

prohibited wastestreams (i.e. streams exhibiting a characteristic at

the point of generation). The concentration of underlying hazardous

constituents would have to be determined through monitoring, and the %

flow can be determined through several methods. One method for

estimating annual average wastewater stream flow is to use the maximum

annual production capacity of the process equipment, along with

knowledge of the process and mass balance. A second method would

involve using measurements that are representative of average process

wastewater generation rates. A third method is to select the highest

flow rate of process wastewater from the historical records. Other

knowledge-based methods, which would be less expensive alternatives to

actual measurement, could also be used. EPA solicits comment on these

alternatives.

D. Point of Generation Discussion

1. Introduction

It has long been the rule that land disposal prohibitions apply at

the point hazardous wastes are generated. See e.g. 55 FR at 22652 (June

1, 1990); 261.3(a)(2)(iii). Some members of the regulated community,

including the Chemical Manufacturer's Association (CMA), have asked EPA

to reconsider this issue in light of the Third Third rule and the D.C.

Circuit opinion interpreting that rule. See CWM v. EPA (976 F. 2d 2

D.C. Cir. 1992). Among other things, the court held that hazardous

constituents present above concentrations ``sufficient to pose a threat

to human health and the environment'' in prohibited wastes, including

characteristic wastes, must meet LDR treatment standards. See 976 F. 2d

at 16.

The regulated community has argued that continued application of

the point of generation rule could lead to situations where

prohibitions would attach to particular characteristic wastestreams and

trigger a host of potentially disproportionate consequences, without

necessarily furthering any of the protective objectives of the LDR

program. Many industrial processes consist of hundreds or thousands of

streams, some of which exhibit characteristics only for a short time or

(for batch processes) intermittently. The streams often exist within

the physical confines of an industrial process, and may be collected

within a common sump or other aggregation point. If one of the streams

should exhibit a characteristic of hazardous waste, the entire system

of wastewater treatment or other management could be affected if the

system contains an impoundment or injection well.

These commenters have also requested that EPA revisit the current

interpretation that prohibitions attach at the instant of generation

and that this requires in certain cases knowledge or monitoring of many

internal streams. They argue that some of these streams may not be

readily amenable to monitoring because everything within the process is

hard-piped to a common collection point. It should be noted that EPA

previously considered the practical difficulties associated with

sampling or monitoring wastes within closed-process units. See 55 FR

25760, 25765 (July 8, 1987).

The commenters have expressed concern that there are likely to be

circumstances where mass loadings of hazardous constituents to the

environment are not significantly affected by allowing initial

aggregation of residual streams from a process. They also have

expressed concern with the practical impacts and achievability of

determining the precise content of potentially thousands of internal

wastestreams within an industrial facility.

In response to these concerns raised by industry groups following

the Third Third opinion, the Agency is soliciting comment on a number

of approaches to modify the current point of generation approach for

making LDR determinations for certain types of wastes. These approaches

also could be applied more generally for purposes of subtitle C to

determine at what point a waste is generated.

2. Background

EPA has required LDR determinations to be made at the point which

hazardous wastes are generated since the Solvents and Dioxins final

rule (51 FR 40620, November 7, 1986). EPA asserted the authority to

make LDR determinations at either point of generation or point of

disposal in the Third Third final rule (55 FR 22652-53). The court

invalidated such selectivity (976 F. 2d at 23), but did hold that at

least the dilution prohibition did not have to apply to invalidate use

of CWA treatment impoundments performing RCRA-equivalent treatment. 2d.

at 23-4.

In the course of finalizing the California list rule, EPA solicited

comment on a ``point of aggregation'' approach to assessing when

prohibitions attached. (See 52 FR at 22356 (June 11, 1987) where point

of aggregation is defined as a point of common aggregation preceding

centralized wastewater treatment.) Most commenters at that time

criticized such an approach on the grounds that the ``point of

aggregation'' was by no means readily determinable and could result in

wastes being treated less or, in some cases, being diluted

impermissibly. EPA rejected the approach for these reasons. 52 FR at

25766 (July 8, 1987).

The following options, which are being presented for comment, would

narrowly redefine the point at which the land disposal prohibitions

attach.

3. Similar Streams Generated by Similar Processes

One possible revision would address situations in which like

streams are generated from like processes and combined as a matter of

routine practice. An example would be collection of rinses from

sequential [[Page 11716]] rinses in a manufacturing process, or

multiple rinses from parallel manufacturing lines all making the same

product. In these circumstances, all the rinse water could contain the

same hazardous constituents in roughly the same concentrations.

Variations in hazardous constituent concentrations would reflect normal

process variability, so that mass loadings of hazardous constituents to

the environment over time would not alter if the rinses are aggregated

and disposed. EPA seeks comment on whether or not such collection of

like streams from like units should be considered impermissible

dilution, since some in the regulated community might view it as

counter-intuitive in many cases to even consider these similar process

outputs to be separate.

4. Streams From a Single Process

Industrial facilities frequently collect residual streams from a

process in a common unit such as a sump. In many cases, these streams

are similar in composition because they all come from a common unit

process. Consequently, although some of the residual streams could

exhibit a characteristic before common collection, long-term average

mass loadings of hazardous constituents per unit of production may not

vary significantly, even though the waste concentrations may vary

within a normal range over time.

Moreover, where residues are generated within a unit process, it

might be possible to view these streams as still within the ``normal

part of the process that results in the waste'', S. Rep. No. 284, 98th

Cong. 2d sess. at 17, and consequently that any routine combination of

these streams from the common process would not be impermissible

dilution. Id. Of course, there is the possibility of abuse in any

approach that allows combination of residues. Characteristic

wastestreams not normally generated as part of the unit process could

be re-piped in order to dilute the characteristic and avoid treatment

of underlying hazardous constituents. This would remain impermissible

dilution under any of the approaches EPA is considering.

This approach differs from the ``point of aggregation'' approach

EPA rejected as part of the California List rule in that it limits the

mixing of waste streams to wastes generated within a single unit

process. In the initial ``point of accumulation'' approach, wastes from

various sources could be mixed in a sump, as long as the sump was the

first point of accumulation. This option limits the mixing to single

manufacturing steps (unit operations).

5. ``Battery Limits''

The CMA has suggested an expanded version of the option discussed

above. Instead of limiting aggregation to that normally occurring

within a single unit process, they would view an entire battery of

processes (associated with making a single product or related group of

products) as a single manufacturing step. CMA would use the logic of

the approach described in the previous section to allow all residues

generated from that sequence of processes to be combined before a

determination is made as to whether wastes are prohibited. Under CMA's

approach, determinations as to whether characteristic wastes are

prohibited could be made at this point where all of the aqueous waste

streams from a unique industrial process are aggregated (referred to by

CMA as ``battery limits''), or at a point that a stream exits the

manufacturing process unit where it is generated (``point of

rejection'').

Such aggregation could, in CMA's view, be considered to be ``part

of the normal process that results in the waste'' (S. Rep. No. 284,

98th Cong. 1st sess. 17) so that the aggregation within the industrial

process battery limits need not be considered to be impermissible

dilution. CMA believes that this approach could ease monitoring

burdens, simplify point of generation determinations, facilitate

legitimate wastewater treatment and avoid accounting for characteristic

properties and underlying hazardous constituents in intermittent

streams such as streams from batch processes, or from characteristic

streams resulting from one-time spills or other process

emergencies.8

\8\However, spills of commercial chemical products exhibiting a

characteristic, an example mentioned by CMA, are already not

considered to be prohibited provided amounts spilled are de minimis,

as defined at 268.1(e)(4) (59 FR 47982, September 19, 1994). See

generally, CMA's submission to EPA of October 5, 1994, part of the

record for this proposed rule.

---------------------------------------------------------------------------

6. Solicitation of Comment

The Agency solicits comment on the composition of internal residual

streams within discrete processes when one or more of the streams

exhibits a characteristic in order to determine how frequently such

streams are similar with respect to identity and concentration of

hazardous constituents. EPA also solicits comments on how difficult it

is to identify the physical boundaries of a unit process, and what

safeguards could be developed to assure that characteristic streams not

normally part of a unit process are not diluted by re-piping and

combination with unrelated streams.

The Agency seeks comment on potential difficulties with all three

options, but mostly the third option. Namely, the various limits do not

seem to be graphically self-defining, and, hence, could be difficult to

implement. The Agency is also concerned about the possibility of

impermissible dilution of non-de minimis characteristic wastewater

streams whenever large numbers and volumes of wastewaters are brought

together and characteristics are eliminated without hazardous

constituents being removed or destroyed.

7. Situations Where Existing Point of Generation Determinations May

Remain Appropriate

a. Listed Wastes. In considering the above approaches, as well as

others, it could be argued that any modification to the point of LDR

determination should apply only to characteristic wastes and F001-F005

(spent solvents) listed wastes. In evaluating wastes from other sources

for listing (including other ``F'' series wastes), EPA has carefully

evaluated the various waste streams and has defined the point of

generation as part of the listing description. Therefore, it may be

inappropriate to modify that description with a more generic point of

prohibition rule. EPA solicit comment on this issue.

b. Prohibited Wastes Whose Treatment Standard is a Method of

Treatment. Section 261.3(b) states that characteristic wastes whose

treatment standard is a specified method of treatment may not be

diluted to remove the characteristic in lieu of performing the

specified method of treatment. Principal examples of such wastes are

high TOC ignitable wastes, characteristic pesticide wastes, and certain

characteristic mercury wastes. 55 FR at 22657. EPA indicated that these

wastes are not typically amenable to adequate treatment by means other

than the designated treatment methods,9 so that aggregation to

remove the characteristic is impermissible dilution unless treatment by

the required method follows. Id.

\9\De minimis losses of the discarded commercial chemical

product form of these wastes are not considered to be prohibited. 40

CFR 268.1(e)(4).

---------------------------------------------------------------------------

EPA's initial view is that these wastestreams should remain

prohibited at the current point of generation. The Agency has made a

considered decision that these wastes require a particular type of

treatment, and the wastestreams themselves are clearly delineated. 55

FR at 22657. In addition, the treatment [[Page 11717]] methods for a

number of these wastes (including high TOC ignitable wastes and

characteristic mercury wastes) include or require resource recovery,

another reason to ensure that this type of treatment continues to

occur. Steel Manufacturers Association v. EPA, 27 F. 3d 642, 647 (D.C.

Cir. 1994). EPA solicits comment as to whether any alteration of the

point at which LDRs attach to these wastes should be reconsidered.

8. Implications Beyond LDR Rules

The Agency believes that narrowly redefining the point at which

wastes are subject to RCRA regulation should be considered because of

industry's concerns with the impact this approach is having on the

program currently and what potential impact it may have in the future.

Strict interpretation of the current point of generation has already

raised questions with respect to the status of a variety of similar

wastes that sometimes exhibit the hazardous waste characteristic and

are routinely mixed (e.g., spent antifreeze from automobiles, boiler

cleanout wastes, emission control residues). This issue may become even

more important in the future as EPA adopts exit levels which may be

established by the Hazardous Waste Identification Rule.

While absolute clarity of the applicability of RCRA may result from

the current point of generation requirement, industry commenters feel

that it could be magnified in the future by this and other rulemakings.

In considering these concerns, EPA does not wish to undermine the

effort to segregate the most concentrated wastes for source reduction

or treatment. EPA solicits comment on whether any of the approaches

described achieves the proper balance among these goals.

V. Discussion of the Potential Prohibition of Nonamenable Wastes From

Land-Based Biological Treatment Systems

This section solicits comment on two regulatory frameworks received

from industry and from treaters of hazardous wastes concerning

refractory underlying hazardous constituents in land-based biological

treatment systems. First, the Environmental Technology Council (ETC)

submitted comments to the Agency on EPA's March, 1993 Supplemental

Information Report on potential responses to CWM v. EPA. The ETC raised

concern as to whether the constituents from these decharacterized

wastes when placed into biological impoundments are merely being

diluted and discharged; volatilized from the surface of the

impoundment; or simply end up concentrating in the sludge at the bottom

of the impoundment. The ETC labeled these constituents whose primary

fate is air or sludge (or discharge without treatment) via one of these

paths as ``nonamenable to biotreatment.'' The comment suggested several

criteria for determining whether process streams with ``nonamenable''

constituents should be kept out of surface impoundments.

Secondly, CMA provided EPA with similar recommendations in August

1993. This section also considers CMA's suggestions for managing

refractory chemicals in land-based biological treatment units.

A. Technical Overview

Many ``decharacterized'' wastes (i.e., wastes that were formerly

hazardous wastes due to their ignitable, corrosive or reactive

properties as generated but which no longer exhibit a characteristic by

the time they are land disposed) are placed in Subtitle D surface

impoundments for the purpose of biological treatment. In theory,

microorganisms in the impoundment can degrade organic constituents in

these wastes (under aerobic and/or anaerobic conditions) to carbon

dioxide and water.

The ETC comment suggested that EPA identify and prohibit wastes

containing these ``nonamenable'' constituents from biological treatment

impoundments. The issue facing EPA is whether there are wastes for

which biological treatment is not BDAT either because biological

treatment cannot adequately reduce hazardous constituents or because

biological treatment simply transfers hazardous constituents to other

media, and, if so, whether an alternative regulatory scheme is

appropriate. While the LDR Phase IV rule will specifically address the

concerns with respect to sludges, leaks and air emissions, EPA has

committed to raising certain technical issues concerning

``nonamenability'' in the LDR Phase III proposed rule and has also

committed to discuss the suggested regulatory resolutions submitted by

both the ETC and the CMA, who also submitted comments pertaining to

this issue.

What follows is EPA's interpretation of the fundamental concerns

which fostered this option, a discussion of the technical issues

inherent to this approach and an identification of alternative

approaches to address these underlying concerns. The issue of whether

RCRA can require segregation of refractory hazardous wastes streams

entering land-based surface impoundments is closely connected to the

Agency's approach to sludges, leaks and air emissions in the LDR Phase

IV rule. The Agency is therefore delaying any final action on the

components of the ETC comments, or on the CMA suggestions, until LDR

Phase IV when more comprehensive decisions can be made on each issue.

B. Summary of the ETC's Position

The full text of the ETC's comments can be found in the

administrative record for today's rule. This section summarizes that

document.

The ETC asserts that ``Hazardous constituents in ICR wastes that

are not amenable to the biological or sedimentation systems used in CWA

lagoons are not receiving RCRA-equivalent treatment.'' They then

propose a definition of ``nonamenable waste streams'' and suggest a

regulatory scheme for keeping these streams out of surface

impoundments.

In particular, the ETC recommends that EPA should establish

treatment standards for ICR wastes that require destruction and removal

of hazardous constituents in the waste as generated, and allow only

those ICR wastes that contain hazardous constituents for which

biological treatment is the best method to be managed in nonhazardous

waste surface impoundments. They provide lists of individual

constituents and constituent categories that should be segregated and

restricted from biological units. These include the following

individual chemicals: mercury, vanadium, chromium, cadmium, lead, and/

or nickel, or the following groups of chemicals: aromatic compounds;

acrylates, phenolics, and highly oxidized constituents such as

phthalates, aldehydes, and ketones; nitrosamines, amines,

nitrophenolics, and aniline compounds and most chlorinated and

brominated organic constituents. ETC also recommends segregating the

following categories of waste: Highly volatile and non-water-soluble

constituents, because of the likelihood of air emissions during

biological treatment; and the acutely toxic P-listed wastes, because

they are poisonous to the biological treatment system. The ETC

explicitly recommends the following criterion for designating a waste

stream ``amenable to biological treatment'': the waste must contain

less than 1% solids, must be free of oil and grease, and must contain

less than 10 ppm total heavy metals.

ETC then defines ``ICR waste streams not amenable to biological

treatment'' as: ICR wastes with constituents (from the groups listed

above) at individual concentrations greater than 100 x F039 wastewater

treatment standards; and ICR wastes with ``water insoluble and

[[Page 11718]] highly volatile'' F039 constituents ``that are more

likely to be released to air and not treated. (ETC did not indicate at

what point these concentrations should be measured, although they did

suggest that wastes should be segregated at ``battery limits''.)

The ETC believes that such ``nonamenable'' wastes should either be

required to undergo pretreatment prior to aggregation with other

wastewaters (e.g., steam stripping of volatile compounds), or be

required to go to other appropriate treatment (e.g., precipitation of

metals). The ETC argues that such segregation of nonamenable wastes

will promote pollution prevention because companies will have an

incentive to modify raw materials or production processes to keep such

hazardous constituents out of the waste stream.

C. Summary of the CMA's Position

The full text of CMA's comments can be found in the administrative

record for today's rule. This section summarizes that document. CMA

describes ``three situations in which characteristically corrosive or

ignitable hazardous wastes could be sent to biological treatment in

surface impoundments without jeopardizing the treatment units

effectiveness by introducing non-amenable compounds''. CMA implicitly

requests that the LDR Phase III rule allow CWA-permitted biological

treatment in the following three situations:

(a) When the stream to the impoundment only contains hazardous

constituents amenable to biological treatment (listed below);

(b) When the stream contains hazardous constituents amenable to

biological treatment plus other (nonamenable) constituents present at

concentrations equal to some multiple (e.g., 1000) of the F039/UTS

treatment standards in the influent to the surface impoundment; or,

(c) The facility can demonstrate on a case-by-case basis that a

nonamenable hazardous constituent is amenable to treatment occurring in

the treatment system.

CMA identifies most of the organic UTS constituents as ``amenable

to biological treatment''. This includes all the constituents for which

biological treatment is the basis of the F039 wastewater treatment

standards plus a number of organic constituents generally recognized in

the literature as biodegradable.

The BDAT List constituents not designated by CMA as ``amenable to

biological treatment are: all UTS metals, fluoride, sulfide and the

volatile and semivolatile organics in the table that follows.

Nonamenable Volatile Organics

Bromodichloromethane

Carbon tetrachloride

Chloroethane

2-Chloroethyl vinyl ether

Chloroform

Chloromethane

1,2-Dibromoethane

Dichlorodifluoromethane

1,1-Dichloroethane

1,2-Dichloroethane

1,1-Dichloroethylene

trans-1,2-Dichloroethene

1,4-Dioxane

Ethylene oxide

Iodomethane

1,1,1,2-Tetrachloroethane

1,1,2,2-Tetrachloroethane

Tribromomethane (Bromoform)

1,1,1-Trichloroethane

1,1,2-Trichloroethane

Trichloroethene

Trichloromonofluoromethane

Vinyl Chloride

Nonamenable Semivolatile Organics

Benzal chloride

2-sec-Butyl-4,6-dinitrophenol

p-Chloroaniline

Chlorobenzilate

p-Dimethylaminoazobenzene

1,4-Dinitrobenzene

4,6-Dinitro-o-cresol

2,4-Dinitrotoluene

2,6-Dinitrotoluene

Di-n-propylnitrosamine

Isosafrole

Methapyriline

3-Methylcholanthrene

4,4'-Methylenebis (2-chloroaniline)

5-Nitro-o-toluidine

Phenacetin

Pronamide

Safrole

Methoxychlor

D. Summary of EPA's Preliminary Response to CMA's and ETC's Technical

Concerns

EPA presents its preliminary evaluation of three major issues that

are raised by both CMA's and ETC's suggestions: the question of feed

limits for land-based biological treatment units; behavior of

nonamenable constituents in land-based biological treatment units and

constituent-specific solubility and toxicity questions.

1. Feed Limits

The CMA and ETC approaches both suggest constituent-specific

limitations of decharacterized ICR waste streams entering surface

impoundments to ensure that certain toxic constituents do not bypass

treatment by volatilizing into the atmosphere, by adsorbing permanently

onto sludge sediments at the bottom of the impoundment or by inhibiting

biodegradation processes in the impoundment. The Agency agrees that all

three of these mechanisms can hinder treatment.

While many aspects of both the ETC and CMA positions have technical

and regulatory merit, there appear to be fundamental technical

disagreements that need to be resolved. First and primary is the fact

that ETC and CMA differ on which constituents (and chemical families of

constituents) are ``amenable'' or ``nonamenable'' to treatment. Second,

proposing regulations requiring segregation of streams entering

impoundments would raise the following issues:

(a) Surface impoundments have traditionally provided an engineering

advantage--in addition to low energy, maintenance and construction

costs--in that, they offer a means of ``equilibrating'' and

``equalizing'' the relatively frequent variations in chemical

compositions of process wastes (i.e., aggregated waste streams). As

such, they receive variable wastes in their capacity as large-volume

holding units for process upset streams, stormwaters, spill washdown

and other unscheduled wastewater releases. Segregation of these various

streams would require construction of holding tanks that may not be

able to provide the same equalization capability of an impoundment;

(b) Mandatory analyses and separation may impose considerable added

expense; and,

(c) EPA, in some cases, assumed that impoundments would be used for

these purposes by not including the costs of impoundment replacement

when developing effluent guidelines for affected industries.

2. Technical Concern

In theory, EPA agrees that certain RCRA waste streams should be

kept out of certain types of Subtitle D impoundments. (Listed wastes

already must go to Subtitle C impoundments, and High TOC D001

ignitables, as well as high mercury wastes, are also restricted from

Subtitle D impoundments.) In addition, in 55 FR at 22666 (June 1,

1990), EPA presented general criteria that could affect amenable/

nonamenable determinations. All parties seem to agree that certain

metal-bearing wastes could also be restricted from impoundments.

However, there are additional factors that need to be considered, such

as impoundment size, depth, temperature, and retention time. (An

individual [[Page 11719]] organic compound is more treatable in some

systems than in others and without information about the extent to

which the lagoon supports aerobic and anaerobic processes we cannot

assess how treatable these constituents are.)

In addition, the overall composition of each waste--i.e. the entire

matrix--must be considered in order to characterize its relative

amenability to biological treatment. In particular, waste composition

can enhance or inhibit a particular organic compound's amenability to

biological destruction. Enhancement occurs, for example, if

microorganisms can use one compound as a co-metabolite or co-substrate

in metabolizing another. A feature story on biological treatment in the

February 1993 issue of Environmental Science and Technology reports ``*

* * highly chlorinated compounds such as trichloroethylene, 1,1,1-

trichloroethane and chloroform will transform under aerobic conditions

if methane, phenol or toluene is provided as a primary source of carbon

and energy for biological growth. However, these reactions are co-

metabolic * * *. Therefore it is important to define exact conditions

when discussing biodegradation results.'' Inhibition occurs when one

compound poisons the metabolic pathway by which another compound is

otherwise degraded. The degree to which the microbial population in the

impoundment has been acclimated to a particular constituent is a

significant factor in determining that constituent's amenability.

Acclimation determines the balance between inhibition and enhancement

and is a factor to be defined in discussing biodegradation results.

The fact that ``consortia'' of microorganisms, rather than members

of a single bacterial strain, accomplish the degradation of complex

molecules further complicates the extent to which a compound can

accurately be labeled ``amenable'' (Rittman and Saez in Levin and Gealt

Biological Treatment of Industrial and Hazardous Wastes, 1993, McGraw-

Hill, New York). The presence of different microorganisms in a

consortium increases the number of compounds that can be degraded in

that impoundment by virtue of the wider array of metabolic degradation

pathways present. However, the various microbial species may require a

narrower range of pH, dissolved oxygen and other parameters in order to

function and may therefore be more liable to collapse and fail than a

simpler more robust microbial strain.

Some of the technical issues that are likely to arise include:

(a) Biotreatment systems vary. Constituents that are amenable to

treatment in one system may be nonamenable in another, thus an accurate

determination of what is a nonamenable waste might have to consider

site-by-site factors, which would present considerable problems in the

implementation of the program. If EPA set up a more generic approach,

other problems are likely to occur, as described below.

(b) The ETC uses the term ``battery limits'' to describe where

nonamenable ICR wastes should be segregated. This term, however, is

undefined and could represent the point where the wastestream leaves

the production equipment, or a variety of aggregation points.

(c) What levels of constituents justify requiring segregation and

recovery?

(d) If EPA required segregation of nonamenable wastes from

biological treatment impoundments, there is a very good possibility

that facilities would merely replace the surface impoundments with RCRA

exempt tanks. Biological treatment in tanks could have the same air

emissions unless they are properly controlled.

With respect to specific hazardous organic constituents, EPA is

currently investigating whether the BDAT list of compounds could be

ordinally ranked into a series of compounds more or less amenable to

biological treatment, based on published treatability data.

``Amenability'' is a continuous variable. Treatability data shows that

some compounds are more amenable to biological degradation than are

other compounds: there are no organic chemicals, other than polymers,

which are absolutely resistant to biological degradation.

Due to the technical problems associated with determining which

wastestreams should be kept out of certain impoundment lagoons, and the

policy concerns raised by these approaches, we are setting out these

issues for comment in this proposed rule.

3. Constituent Properties of Concern

The following three items are criteria ETC suggests in addition to

individual constituent concentrations. EPA invites comments on means of

managing these waste properties.

a. Water solubility. EPA does not share ETC's concern that less

soluble compounds are significantly less amenable to biological

treatment than relatively hydrophilic compounds. For example, PCB's are

virtually insoluble; nevertheless the literature documents cases where

PCB's have been successfully degraded to hydrochloric acid, carbon

dioxide and water.

b. TC Metals. EPA believes the LDR Phase IV limitations on land

disposal of wastes that meet the definition of toxicity based on their

metals concentration will address ETC's and CMA's concerns about the

inadequacy of surface impoundments for metal treatment.

c. Toxicity. EPA solicits comments on the suggestion that P-waste

constituents be managed as particularly toxic and thus likely to poison

metabolic pathways in the degradation process. EPA further solicits

comment on additional constituents or categories of constituents that

are likely to be acutely toxic to biological treatment processes,

rather than merely resistant to biological treatment.

The target mass removal approach described earlier in this preamble

can be applied to biological treatment units to determine whether

constituents managed in the units are being effectively degraded. The

application of this approach could address the question of wastes

nonamenable to biotreatment. The target mass removal approach requires

a waste determination prior to the waste entering the treatment unit,

and either (1) a waste determination after treatment in the unit, or

(2) a determination of the operating efficiency of the treatment unit.

This approach has been applied to biotreatment units for at least two

promulgated standards that regulate hazardous organic chemicals: the

HON and the Subpart CC air rules. Comments are solicited on the

approach to address the nonamenable waste concerns.

F. Additional Issues

In addition to the issues raised in the section ``Summary of EPA's

Preliminary Response'' above, there are other technical issues arising

in developing a list of UTS constituents that are not amenable to

biological treatment. Another issue concerns those UTS constituents for

which biological treatment is BDAT: could a wastestream containing such

constituents have such a high concentration of other compounds known to

be refractory to biological treatment that biotreatment no longer

effectively treats the constituents? A third issue considered here is

the extent to which ``nonamenable'' constituents evade treatment by

volatilizing into the air or by adsorbing onto sludge, in addition to

flowing out untreated in effluent.

1. List of Hazardous Constituents

In order to ensure that all the constituents in a decharacterized

waste [[Page 11720]] are adequately addressed, the starting point

should not be the BDAT list but rather the entire list of U and P,

appendix VIII, and other toxic chemicals present in the hazardous waste

universe. The next LDR rulemaking (``Phase IV'') will discuss the

universe of hazardous constituents regulated by RCRA (i.e., a composite

of the above lists) and may propose which constituents from the

composite list are considered ``nonamenable'' or ``amenable''. Today's

preamble, however, raises general issues associated with

``amenability'' in order to solicit comments on specific questions.

These questions will be addressed in LDR Phase IV. For example, the

Phase IV proposed rule may include a discussion of quantification

problems and the use of surrogate parameters such as BOD/COD/TOC ratios

to assist in measuring performance where analytical methods do not

exist.

2. Biotreatment as BDAT

EPA has already promulgated biodegradation (BIODG) as a specified

method of treatment for quite a few U and P waste codes that fall under

the category that ETC has asked to be classified as ``nonamenable''.

(For example, nitrosamines easily break down in water to nitroamines.

Nitrogen-containing organics can typically be biodegraded. Most

microorganisms flourish in the presence of nitrogen containing

chemicals.) EPA has also established numerical standards for many

chemicals based on biotreatment data. EPA is including all of the

chemicals in both of these cases in this proposed rule and is asking

for comment on them and seeking data that would refute or support that

biotreatment is BDAT for these chemicals.

3. Toxics Along for the Ride

EPA intends that the Phase IV proposed rule will expand the

discussion on the concept of ``toxics along for the ride'' in

biotreatment (i.e., concern about how best to regulate those toxic

compounds that are not degraded to less toxic compounds and

consequently pass untreated through the unit and on to land disposal).

While the concept is environmentally attractive, in order to create a

regulatory construct prohibiting such constituents from biotreatment,

the Agency must consider the following constituent-specific factors:

(a) Is the elemental composition of the chemical such that it is

truly not ``amenable to biotreatment'' such as for metals?

(b) Does a low rate of hydrolysis indicate low biodegradability?

(c) Does high volatility necessarily indicate low biodegradability?

(d) What retention time is required for biodegradation?

(e) Is the biological system responsible for degradation of the

compound sensitive to upsets in either the chemistry of the impoundment

or its biocomposition?

(f) Is the bioactivity considered ``aggressive''?

(g) Is the constituent actually chemically treated in the

impoundment?

(h) Will the constituent encounter treatment after the impoundment?

(i) Is the waste containing the constituent difficult to segregate

from other wastes?

(j) Does the chemical occur naturally in the surrounding soil or

water?

(k) Is the chemical already present in the sludge and could then be

released by the sludge even though the influent is reduced?

(l) Is the chemical present in other nonhazardous waste that are

commingled with the decharacterized wastes?

(m) Is the chemical generated at concentrations below that which is

considered neither a chronic nor an acute health risk?

(n) Is there an ecological risk from the inorganic composition of

the waste such as the high salinity (dissolved solids) of most D002

wastes?

(o) Is the chemical a surprise presence from the use of some

product that contains trace levels that couldn't be measured when the

product was used (below product specifications)?

(p) Is the chemical appearing due to corrosion of pipes and

equipment?

G. Treatment Standard for Wastes With a High Concentration of Organics

In the Phase II final rule (59 FR 47982, September 19, 1994), EPA

finalized regulations prohibiting the disposal in Class I nonhazardous

waste injection wells ignitable characteristic wastes with a high total

organic carbon (TOC) content and toxic characteristic pesticide wastes,

unless either the well is subject to a no-migration determination, or

the wastes are treated by the designated the LDR treatment method. The

treatment method promulgated was either combustion (i.e. incineration

or fuel substitution) or recovery of organics. Today the Agency is

raising the option of proposing the same treatment standard for

characteristic wastes with high concentrations of organics managed in

surface impoundments. This would result in a prohibition of these

wastes going into biological impoundments.

The Agency requests comment on this option, including the question

of how to define ``high'' levels of organics that would justify

prohibition from surface impoundments. The Agency believes this option

provides many of the benefits of segregation of refractory

``nonamenable'' streams with significantly lower analytical

requirements.

VI. Treatment Standards for Newly Listed Wastes

A. Carbamates

Hazardous Wastes from Specific Sources (K Waste Codes)

K156--Organic waste (including heavy ends, still bottoms, light

ends, spent solvents, filtrates, and decantates) from the production

of carbamates and carbamoyl oximes.

K157--Wastewaters (including scrubber waters, condenser waters,

washwaters, and separation waters) from the production of carbamates

and carbamoyl oximes.

K158--Bag house dust, and filter/separation solids from the

production of carbamates and carbamoyl oximes.

K159--Organics from the treatment of thiocarbamate wastes.

K160--Solids (including filter wastes, separation solids, and spent

catalysts) from the production of thiocarbamates and solids from the

treatment of thiocarbonate wastes.

K161--Purification solids (including filtration, evaporation, and

centrifugation solids), baghouse dust, and floor sweepings from the

production of dithiocarbamate acids and their salts. (This listing

does not include K125 or K126.)

Acute Hazardous Wastes (P Waste Codes)

P203 Aldicarb sulfone

P127 Carbofuran

P189 Carbosulfan

P202 m-Cumenyl methylcarbamate

P191 Dimetilan

P198 Formetanate hydrochloride

P197 Formparanate

P192 Isolan

P196 Manganese dimethyldithiocarbamate

P199 Methiocarb

P190 Metolcarb

P128 Mexacarbate

P194 Oxamyl

P204 Physostigmine

P188 Physostigmine salicylate

P201 Promecarb

P185 Tirpate

P205 Ziram

Toxic Hazardous Wastes

U394 A2213

U280 Barban

U278 Bendiocarb

U364 Bendiocarb phenol

U271 Benomyl

U400 Bis(pentamethylene)thiuram tetrasulfide [[Page 11721]]

U392 Butylate

U279 Carbaryl

U372 Carbendazim

U367 Carbofuran phenol

U393 Copper dimethyldithiocarbamate

U386 Cycloate

U366 Dazomet

U395 Diethylene glycol, dicarbamate

U403 Disulfiram

U390 EPTC

U407 Ethyl Ziram

U396 Ferbam

U375 3-Iodo-2-propynyl n-butylcarbamate

U384 Metam Sodium

U365 Molinate

U391 Pebulate

U383 Potassium dimethyl dithiocarbamate

U378 Potassium n-hydroxymethyl-n-methyldithiocarbamate

U377 Potassium n-methyldithiocarbamate

U373 Propham

U411 Propoxur

U387 Prosulfocarb

U376 Selenium, tetrakis (dimethyldithiocarbamate)

U379 Sodium dibutyldithiocarbamate

U381 Sodium diethyldithiocarbamate

U382 Sodium dimethyldithiocarbamate

U277 Sulfallate

U402 Tetrabutylthiuram disulfide

U401 Tetramethylthiuram monosulfide

U410 Thiodicarb

U409 Thiophanate-methyl

U389 Triallate

U404 Triethylamine

U385 Vernolate

For background information on waste characterization data, data

gathering efforts, and applicable technologies, see the Best

Demonstrated Available Technology (BDAT) Background Document for Newly

Listed or Identified Wastes from the Production of Carbamates and

Organobromines.

1. Proposed Treatment Standards

The Agency has promulgated the listing of the wastes from the

carbamate industry specified above. The final listing was signed by the

administrator on January 31, 1995, and published in the Federal

Register on February 9, 1995. EPA is today proposing concentration-

based treatment standards for these wastes. The concentration limits

for the regulated constituents are based on both existing and newly

proposed UTS (59 FR 47982, September 19, 1994). UTS standards have

already been promulgated for 21 of the constituents of concern for

these waste codes (16 organic constituents and 5 metals). These

standards were promulgated in the LDR Phase II final rule and are based

on the following technologies: (1) Incineration was the primary basis

for organic constituents in nonwastewaters; (2) biological treatment or

carbon absorption was the basis for organics in wastewaters; (3) high

temperature metal recovery and stabilization were the basis for metals

in nonwastewaters; and (4) chemical precipitation was the basis for

metals in wastewaters. These treatment standards were developed by

examining essentially all the BDAT treatment data the Agency had at the

time.

The Agency is proposing new UTS for 42 constituents associated with

carbamate wastes. 40 of these constituents are chemicals produced by

this industry which may be grouped into the following categories:

carbamates and carbamate intermediates, carbamoyl oximes,

thiocarbamates, and dithiocarbamates. Please refer to the Background

Document for definitions of these chemical groups and the

categorization of these 40 chemicals. The other 2 constituents for

which new UTS are being proposed (triethylamine, and o-phenylene

diamine) are not carbamate products, but are hazardous constituents

present at levels of regulatory concern in carbamate wastes. Note that

although specific dithiocarbamate chemicals have been added to Appendix

VII and VIII, the basis for listing K161, and the waste descriptions of

P196, P205, U277, U366, U376-379, U381-384, U393, U396, U400-U403, and

U407, the regulated constituent for these chemicals and codes is

specified as ``Dithiocarbamates (total)'', because the analytical

method for dithiocarbamates does not distinguish among specific

dithiocarbamate constituents.

The Agency is proposing to base the UTS for the carbamate,

carbamate intermediate, carbamoyl oxime, dithiocarbamate, and

thiocarbamate constituents in wastewaters on data developed by the

Office of Water for the development of effluent guidelines, and data

from treatability studies performed by RREL. Wastewater standards for

carbamate and carbamoyl oxime constituents are based on data from

alkaline hydrolysis, with the exception of thiodicarb which is based on

biological treatment. Wastewater standards for thiocarbamates are based

on GAC adsorption, while wastewater standards for dithiocarbamates are

based on ozone/UV light oxidation. In cases where data were not

available for a specific constituent, the standard has been transferred

from the constituent with the most similar chemical structure and

properties.

The Agency is proposing to base the UTS for the carbamate,

carbamate intermediate, carbamoyl oxime, thiocarbamate, and

dithiocarbamate constituents in nonwastewaters on analytical detection

limits compiled from sampling and analysis reports prepared to support

the proposed listing for these wastes. Although data from the treatment

of these constituents in nonwastewater matrices is not currently

available, the thermal destruction technologies currently employed to

treat these nonwastewaters can routinely achieve destruction to levels

below the detection limit.

In addition, the Agency is proposing UTS standards for

triethylamine based on data transferred from the treatment of

methapyrilene. The treatment standards for methapyrilene are 0.081 mg/l

for wastewaters and 1.5 mg/kg for nonwastewaters. Methapyrilene was

selected as the basis for this data transfer because it is the only

tertiary amine for which UTS standards have been promulgated.

Finally, the Agency is proposing UTS standards for o-

phenylenediamine based on analytical detection limits compiled from

sampling and analysis reports prepared to support the proposed listing

for these wastes. For the treatment standards being proposed today for

waste codes K156-161, P127, P128, P185, P188-192, P194, P196-199, P201-

205, U271, U277, U279, U280, U364-367, U372, U373, U375-379, U381-387,

U389-396, U400-404, U407, U409-411, see Sec. 268.40 table--Treatment

Standards for Hazardous Wastes in the proposed amendments to the

regulatory language.

2. Request for Comments

In the LDR Phase II rule establishing UTS, the Agency was able to

make modifications to the proposal, where commenters submitted data.

The Agency strongly encourages parties affected by these proposed

standards to submit any available treatment data for these newly

regulated constituents; if such data become available, the Agency will

make appropriate adjustments to these proposed standards. The Agency is

soliciting comments, technical descriptions, and performance data

regarding the characterization and treatability of these wastes and the

achievability of these proposed standards. EPA is especially interested

in any information regarding the feasibility of product recovery for

these wastes, any available treatment data for the new constituents

being added to the list of UTS, detection limits for these constituents

in treatment residues, and suggestions for specified methods which

could be alternatives to the concentration based standards proposed

today.

Because standards for organics are based on treatment of organic

constituents to non-detect levels, EPA solicits comment on the use of

constituent specific detection levels used during the testing of these

wastes for purposes of the listing [[Page 11722]] determination. The

Agency recognizes that there may be differences between detection

limits prior to and after treatment. Detection levels may be lowered

for these wastes after treatment due to the ``cleaner'' matrix. This

data has been placed in the docket for today's proposed rule.

B. Organobromines

K140--Waste solids and filter cartridges from the production of

2,4,6-tribromophenol.

U408--2,4,6-Tribromophenol

For further information on waste characterization data, data

gathering efforts, and applicable technologies, see the Best

Demonstrated Available Technology (BDAT) Background Document for Newly

Listed or Identified Wastes from the Production of Carbamates and

Organobromines.

1. Proposed Treatment Standards for Organobromine Wastes

EPA proposed to add 2,4,6-Tribromophenol to Appendix VIII of Part

261 on May 11, 1994, and is today proposing to add this constituent to

the list of UTS in 40 CFR 268.48. The decision to add 2,4,6-

tribromophenol to appendix VIII was based on the determination that the

toxicities of this chemical and its chlorinated analogue, 2,4,6-

Trichlorophenol, are essentially the same, due to the Quantitative

Structure Activity Relationship (QSAR) between these two compounds.

Since treatment data is not currently available on 2,4,6-

tribromophenol, the Agency is proposing to set the UTS for 2,4,6-

tribromophenol based on data transferred from the treatment of 2,4,6-

trichlorophenol. The structures of 2,4,6-tribromophenol and 2,4,6-

trichlorophenol are sufficiently similar to be considered halogenated

congeners of phenol. Both halogenated phenols contain three

symmetrically placed bromine or chlorine substituents which are

difficult to remove by chemical substitution. The chemical behavior and

mechanisms of action for 2,4,6-tribromophenol is expected to be similar

to its chlorinated analogue, 2,4,6-trichlorophenol. Thus, the Agency is

proposing UTS standards of 7.4 mg/kg for nonwastewaters and 0.035 mg/l

for wastewaters for 2,4,6-tribromophenol.

The Agency is soliciting comment regarding the achievability of

this standard by demonstrated available technologies and regarding the

analytical detection limit of 2,4,6-tribromophenol in treatment

residual matrices. The Agency is also soliciting any available data on

the concentrations 2,4,6-tribromophenol in treatment residuals from the

recovery or destruction of wastes containing 2,4,6-tribromophenol. The

analytical method for 2,4,6-Tribromophenol is SW846 method 8270 (GC/MS

for semivolatiles, capillary column).

2. Applicable Technology

The lone facility which produces 2,4,6-tribromophenol wastes uses a

Bromine Recovery Unit (BRU) to recover bromine values from organic

liquid and vapor waste streams. In this unit, the organics are burned

and the combustion products are removed by a wet scrubber. The BRU is a

halogen acid furnace which meets the regulatory definition of

industrial furnace in 40 CFR 260.10. The combustion of hazardous waste

in industrial furnaces is regulated under 40 CFR part 266, subpart H,

which regulates air emissions from these units and requires monitoring

and analyses. The facility which produces 2,4,6-tribromophenol burns

listed spent solvents and still bottoms in this BRU; therefore, it is

already subject to the performance standards of part 266, subpart H.

Treatment of 2,4,6-tribromophenol wastes in the BRU should be effective

in destroying the phenolic component of 2,4,6-tribromophenol and

providing for recovery of bromine. Based on available information, EPA

proposes that treatment by BRU is BDAT for 2,4,6-tribromophenol wastes.

EPA solicits comment on this assertion and on the potential

applicability of other technologies which destroy 2,4,6-tribromophenol

and provide recovery of bromine.

C. Aluminum Potliners (K088)

K088--Spent potliners from primary aluminum reduction.

For background information on waste characterization, see the Best

Demonstrated Available Technology Background Document (BDAT) for Newly

Listed or Identified Wastes for K088, Spent Aluminum Potliners.

1. Possible Determination of Inherently Waste-Like

Certain current and potential K088 management methods have features

of both recycling and conventional treatment. For example, there are a

number of management methods involving some type of combustion process

that produce a treatment residue from which resources may be recovered

and reused. These management methods either destroy or drive off

cyanides and toxic organics. Nevertheless, the technologies may useful

alternative management methods for K088 if valuable resources are

recovered. The Agency has a long-standing preference for recovery over

simple treatment. This position is based on the preference in RCRA for

environmentally protective recovery versus waste treatment. Any

consideration of relative safety must include not just the recovery

step, but transport and storage preceding recovery, and proper

management of all residues from recovery. RCRA section 1003(a)(6) as

well as S. Rep. No. 284, 98th Cong. 2d sess. at 17.

EPA is considering how best to balance the potential promise of

spent potliner recovery technologies with their similarities to

conventional treatment technologies, especially with respect to the

fate of (and risks generated by) hazardous constituents present in the

waste. The Agency would prefer to provide consistent regulatory

requirements for these recovery as well as for conventional treatment

technologies in order to ensure both safe recovery and treatment.

However, the existing regulatory framework may make it difficult to

achieve this objective. For example, many of these recovery

technologies already could be subject to the existing regulations for

industrial furnaces burning hazardous waste (the so-called BIF

rules).10 See 56 FR at 7142 (Feb. 21, 1991); 50 FR at 49171-174

(Nov. 29, 1985).

\10\ Because the Agency is not fully aware of all of the details

of some of the projected potliner treatment/recovery technologies,

we cannot state at this time whether the technologies will meet the

regulatory definition of an industrial furnace. It should be noted

that processes recovering both energy and material values from a

waste are subject to BIF rules, and energy recovery in an industrial

furnace need not involve any export of energy).

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For K088 recovery technologies subject to BIF regulations, only

those facilities in existence on the effective date of the BIF rules

(August 21, 1991) could operate without first obtaining a permit. This

could create a significant barrier to commercial operation of the

technology in the near term. If, however, these units operate in a

manner that does not subject them to the BIF regulations, then it is

possible that they could operate with little or no oversight under

RCRA.

The regulatory classification of residues as hazardous or

nonhazardous wastes is another area where there would be dissimilar

requirements under current rules. For example, one company has obtained

from EPA a delisting determination that residues from their

conventional treatment process are at levels low enough to no longer be

classified as listed hazardous wastes. Other companies have not

obtained such determinations, even though they potentially could treat

spent potliners to delisting levels. As a result, these companies face

the cost [[Page 11723]] and time of seeking a delisting petition, or

the cost disadvantage of disposal of all residuals as hazardous waste.

Because of the similarities in risks, EPA is soliciting comment on

whether there are ways to subject all of these technologies to the

same, or nearly the same, regulatory requirements, while assuring that

the ultimate goals of protecting human health and the environment are

not compromised. The Agency has discussed with aluminum industry

representatives the possibility of achieving this objective by

designating spent aluminum potliners as inherently waste-like materials

pursuant to 261.2(d),11 and using this designation as a triggering

event for a determination of ``substantial confusion'' pursuant to

270.10(e)(2), which could establish a date for eligibility for interim

status after August 21, 1991. See generally 56 FR at 7142 making this

type of designation and finding of ``substantial confusion'' for

halogen acid furnaces. The Agency solicits comment on this possibility.

The benefit of this approach would be to guarantee that these

technologies all would be subject to a minimum level of RCRA oversight,

especially with respect to design of storage equipment, control of air

emissions from the process, minimum treatment standards for residuals,

and mandatory corrective action in response to releases of hazardous

constituents to the environment.

\11\ The basis for such a designation would be that spent

potliners contain cyanides and polyaromatic hydrocarbons which are

destroyed rather than recycled, even by recovery technologies. These

hazardous constituents are present in concentrations not ordinarily

found in raw materials or products for which the spent potliners

would be substituting, and the spent potliners could pose a

substantial hazard to human health and the environment when

recycled. The combustion process itself, for example, would seem to

pose all of the risks the BIF rule is intended to address. Past

storage practices for spent potliners also have led to significant

environmental damage (although much of this storage utilized open

piles).

A designation of inherently waste-like, incidentally, would only

apply to the potliners and not to legitimate products obtained by

processing the potliner (so long as those products were not burned

as fuels or used directly on the land). 56 FR at 7141. Another

option, therefore, would be to designate the use of K088 in certain

types of recycling (e.g., all processes involving thermal

destruction of cyanide, processes that incorporate cyanide/PAHs into

product unchanged) as inherently waste-like.

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In order to mitigate some of the potential delay and costs in

complying with RCRA, EPA also requests comment on the feasibility of

establishing uniform delisting levels for residues from processing

spent potliners, much as it did for residues from processing K061

wastes in high temperature metal recovery furnaces. Under this

approach, we believe, levels would need to be established for organics,

metals, cyanide and fluoride.

Another possibility for assuring safe processing of the potliners

would be to develop air emission standards for the processing units

pursuant to section 112(d) of the Clean Air Act. This alternative would

have to be implemented in such a way as to assure proper management of

the potliners before processing, and satisfactory treatment and

management of residues from the processing. EPA solicits comment on all

of these issues.

EPA wishes to add that its Region 10 office and the Washington

State Department of Ecology have already evaluated the spent potliner

recovery process used by one vender (Enviroscience). Washington State

determined that it is an excluded recycling process, and EPA Region 10

determined that the process is not required to meet emission standards

for BIFs, provided the process is conducted pursuant to certain

conditions.\12\ In light of the existing industry reliance on this

determination, any decision made regarding designation of spent

potliners in this rulemaking would not change the specific decisions

concerning the Enviroscience process that have been completed to date.

\12\These evaluations were conducted at the express, voluntary

request of Enviroscience.

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2. Overview of Today's Proposal

EPA is proposing treatment standards for K088 expressed as the

maximum concentration of specific constituents that would be allowed

for land disposal. The tables at the end of this section summarize the

constituents proposed for regulation and the maximum allowable

concentrations. These maximum concentrations are the UTS for metals,

cyanides, and other organics that were developed in the LDR Phase II

final rule. These standards are based on a variety of technologies as

follows: (1) Alkaline chlorination was the basis for the cyanide

wastewater standards; (2) alkaline chlorination of the wastewater to

destroy the cyanide prior to the generation of the nonwastewater

residual was the basis for the cyanide nonwastewater standard; (3)

incineration was the primary basis for other organic constituents in

nonwastewaters; (4) biological treatment or carbon absorption was the

basis for organics in wastewaters; (5) high temperature metal recovery

and stabilization were the basis for metals in nonwastewaters; (6)

chemical precipitation was the basis for fluorides and metals in

wastewaters; and (7) immobilization through either vitrification or the

addition of calcium as a stabilization reagent was the basis for

fluorides in nonwastewaters.

These treatment standards were developed by examining essentially

all the BDAT treatment data the Agency had at the time. The Agency is

also proposing new nonwastewater treatment standards based on leachate

tests for fluoride. The leach tests must be conducted using the TCLP

(SW-846 Method 1311 as described in 40 CFR Part 261, Appendix II).

These leach standards were developed by the Agency when granting a

delisting for certain K088 wastes. The treatment standard for fluoride

wastewaters is taken from the UTS promulgated in the LDR Phase II final

rule. More information on the development of these treatment standards

can be found in the docket to today's rule.

Treatment and recycling technologies such as mineral wool cupolas,

metallurgical processes, iron and steel industrial furnaces, and other

recovery and recycling technologies should be able to meet the proposed

standards. K088 treatment data from Reynolds Metals, Comalco Aluminum

Ltd., Ormet Corporation and the EPA Combustion Research Facility (CRF)

show that K088 can be treated to meet the UTS. Because EPA is proposing

numerical treatment standards, a

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