Land Disposal Program Flexibility Act of 1996Surface Impoundment Study

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 261, 268, 271

[FRL-5542-2]

RIN 2050-AD38

Land Disposal Program Flexibility Act of 1996--Surface

Impoundment Study

AGENCY: Environmental Protection Agency.

ACTION: Request for comments.

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SUMMARY: On March 26, 1996, the President signed the Land Disposal

Program Flexibility Act of 1996. This statute overrules certain parts

of the D.C. Circuit's opinion in Chemical Waste Management v. EPA, 976

F. 2d 2 (D.C. Cir. 1992), cert. denied 113 S.Ct. 1961 (1993) which

relate to managing so-called decharacterized wastes--characteristic

hazardous waste whose characteristic has been removed before land

disposal--in centralized wastewater management systems regulated under

the Clean Water Act (CWA) or the Safe Drinking Water Act (SDWA).

The subject of this Federal Register document is a related

provision in the statute which requires that not later than five years

after the date of enactment, EPA shall complete a study of potential

risks to human health or the environment posed by managing these

decharacterized hazardous wastes in either a) surface impoundments

which are part of wastewater treatment systems whose ultimate discharge

is regulated under the CWA, or b) Class I non-hazardous injection wells

regulated under the SDWA.

EPA is seeking to develop more information in order to prepare the

portion of the study dealing with surface impoundments. This Federal

Register document has been prepared for industry representatives and

environmental groups to clearly define the Agency's expectations in

requesting draft methodologies that outline the conceptual design of

the study, including how best to collect data, data quality assurance/

quality control

(QA/QC), risk assessment, and peer review. Concurrently, the Agency

will develop a methodology to ensure that requirements of the

legislation are satisfied and the conceptual design of the study is

balanced with those of the commenters. Upon receipt of draft

methodologies from commenters, the Agency will convene a workgroup to

select an overall, scientifically defensible approach to address the

requirements of the legislation. The selected methodology will then be

subject to a peer review process conducted by a peer review panel set

up by the Agency to provide oversight and QA/QC of the study.

DATES: Draft methodologies are requested by September 23, 1996.

ADDRESSES: To submit draft methodologies, the public must send an

original and two copies to Docket Number F-96-PMWA-FFFFF, located at

the RCRA Docket. The mailing address is: RCRA Information Center, U.S.

Environmental Protection Agency (5305G), 401 M Street, SW., Washington,

DC 20460. The RCRA Information Center is located at 1235 Jefferson

Davis Highway, First Floor, Arlington, Virginia. The RCRA Information

Center is open for public inspection and copying of supporting

information for RCRA rules from 9:00 a.m. to 4 p.m., Monday through

Friday, excluding Federal holidays. The public must make an appointment

to review docket materials by calling (703) 603-9230. The public may

copy a maximum of 100 pages from any regulatory document at no cost.

Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information or to order

paper copies of this Federal Register document, call the RCRA Hotline.

Callers within the Washington Metropolitan Area must dial (703) 412-

9810 or TDD (703) 412-3323 (hearing impaired). Long-distance callers

may call 1-800-424-9346 or TDD 1-800-553-7672. The RCRA Hotline is open

Monday through Friday from 9:00 a.m. to 6:00 p.m., Eastern Standard

Time. For other information on this notice, contact Linda Martin

(5307W), Office of Solid Waste, 401 M Street, SW., Washington, D.C.

20460, phone (703) 308-0499.

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. This expedited procedure is in conjunction with the

Agency ``Paperless Office'' campaign. For further information on the

submission of diskettes, contact Linda Martin of the Economics,

Methods, and Risk Assessment Division at (703) 308-0499. This Federal

Register Notice is available on the Internet System through EPA Public

Access Server at gopher.epa.gov or through WWW.epa.gov. For the text of

the notice, choose: Rules, Regulations, and Legislation; the FR-Waste;

finally, Year/Month/Day.

Request for Comments

On March 26, 1996, President Clinton signed into law the Land

Disposal Program Flexibility Act of 1996. This legislation amends

section 3004(g) of RCRA to overrule portions of the District of

Columbia Circuit Court of Appeals' 1992 decision (Chemical Waste

Management v. EPA, 976 F. 2d 2) dealing with the requirement to treat

wastes that as generated exhibit a characteristic of hazardous waste,

but

[[Page 38685]]

are diluted to remove that characteristic and are then placed in land

disposal units--either surface impoundments that are part of Clean

Water Act wastewater treatment systems or Class I injection wells. The

legislation, by and large, states that treatment of such wastes is not

required before placing them in these land disposal units. See

generally, 61 FR 15660 (April 8, 1996) codifying portions of this

legislation.

The statute further requires EPA to conduct a study characterizing

risks to human health or the environment associated with management of

decharacterized wastes in impoundments which are part of Clean Water

Act treatment systems, or in Class I injection wells. EPA is also

authorized to develop additional standards for such units as may be

necessary to protect human health and the environment, and such

standards could be based on the results of the study. (RCRA section

3004(g)(10)). This notice concerns the part of the study dealing with

surface impoundments.

In conducting the Surface Impoundment Study (hereafter referred to

as ``the study''), the Agency hopes to arrange and maintain a

cooperative effort with all interested parties as EPA moves forward to

develop a scientifically defensible work plan for conducting the study.

Input into the data collection and development of the study design, as

well as information regarding current management practices will prove

invaluable in developing such a work plan.

Currently, the Agency is developing a draft methodology to assess

potential risks posed by management of decharacterized wastes in

surface impoundments. Key steps being taken to develop a draft

methodology include identifying issues related to conducting the study,

conducting meetings with interested parties, establishing a methodology

for conducting the study, and establishing a peer-review structure for

the study. The objective of the approach is to address Congress'

concerns by assessing potential risks posed by management of

decharacterized wastes in surface impoundments, assessing the degree to

which existing State/Federal/Tribal programs effectively mitigate those

risks, and finally determining which State/Federal/Tribal laws or

programs are best equipped to manage the remaining risks, or whether

independent controls may be needed.

To this end, EPA requests that interested industry, environmental

and state groups provide input to the Agency into the development of

the study such that Congress' concerns are addressed. Issues for which

input is needed include data collection, quality assurance/quality

control of data, development of risk assessment methods, establishment

of a peer-review structure for the study, and assessment of current

State/Federal/Tribal regulations or programs that address risks posed

by decharacterized wastewaters managed in surface impoundments.

Additionally, the Agency also requests input regarding regulations or

programs that could be developed to address these risks.

Specifically, EPA requests that each interested group develop

proposed methodologies and work plans for conducting the study of risks

and existing regulations associated with surface impoundments receiving

decharacterized wastes. Specific elements to be included in the

methodology are outlined below. Following the methodology outline is

EPA's preliminary schedule for completing the study, which is included

in this document in order that commenters can better understand how and

when EPA intends to proceed, and the role commenters can play. EPA will

then evaluate proposed work plans submitted by commenters, in

combination with its own work plan, by means of a peer review process.

Methodology Outline

Proposed methodologies should be organized according to the

following format.

I. Conceptual Approach to the Study

The most critical element of the study is the completion of a high-

quality, peer-reviewed risk assessment, since accurate identification

of priorities for surface impoundment regulation and conclusions about

the need for new regulations depend on the risk results. The

development of an appropriate risk assessment methodology is therefore

very important. The purpose of this section of the proposed methodology

is to address key elements of the methodology and threshold questions,

including but not limited to:

A. What should be the overall scope of the study?

B. What should be done to ensure credibility of the study?

C. What do you expect your group's role to be in conducting the

study?

D. How heavily should we rely upon fate and transport modeling

versus actual exposure monitoring?

E. Can the study be completed with available data?

F. How should additional data be collected?

G. Are there innovative mechanisms to conducting or designing the

study using third parties (scientific organizations)?

II. Detailed Methodology

A. Sampling strategy:

i. Identification of the universe of facilities/ Study Population

ii. Description of the approach to sampling the universe of

facilities/ Study Population (representativeness of the sample)

1. Random versus Judgmental

2. Stratification

3. Sample size

B. Risk Characterization 1:

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\1\ It should be noted that, from the advent of the D.C.

Circuit's decision, EPA has repeatedly solicited data on the types,

volumes, and concentrations of hazardous constituents, plus types

and magnitudes of releases from surface impoundments managing

decharacterized wastes. See, e.g., Supplemental Information to

Notice of Data Availability (58 FR 4972, Jan. 19, 1993) at pp. 17,

18, 19; Phase 4 Proposed Rule (60 FR 43654, Aug. 22, 1995). To date,

members of affected industry have provided virtually no hard

information in response. EPA hopes that such information will be

forthcoming as it develops the surface impoundment study.

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i. Data/Source Term Characterization

1. Facility

a. History

b. Location

c. Surrounding Land Uses

d. Meteorological Data

e. Subsurface Hydrogeology

2. Units

a. Point of Generation quantity of characteristic waste generated

for each facility and/or industry; quantity of sludge generated

(including sludge that is currently dredged from affected surface

impoundments and sludge left in place in these units)

b. Surface Impoundments (including the use of surface impoundments

or tanks to treat decharacterized wastewaters; types of surface

impoundments used; size of surface impoundments; waste segregation and

treatment practices at the unit, including the quantity of

characteristic wastewaters that are segregated and the potential cost

associated with segregating wastewaters)

c. Storm water Runoff (including the use of surface impoundments

for Storm water runoff)

3. Hazardous Constituents in Decharacterized Wastewaters

a. Physical state

b. Toxicity information

c. Concentration

1. At the point of generation (prior to aggregation and/or

decharacterization)

2. In surface impoundment based treatment systems (near the point

at which they might be released to the environment)

[[Page 38686]]

3. In leachate from surface impoundments (including leachate

release quantities and estimates of the relationship between

constituent concentrations in surface impoundment wastewater and

constituent concentration in leaks)

4. Estimates of the relationship between the concentration in

surface impoundments and the subsequent releases to air at affected

facilities (including concentrations of toxic constituents in ambient

air around affected facilities)

5. Sludge constituent concentrations

ii. Fate and Transport

1. Estimation of future fate and transport

a. What models should be used to estimate fate and transport? What

are the limitations of applying each model?

b. Pathways of concern

c. Handling complex environments; in subsurface, extreme

meteorological events

2. Describe key elements of fate and transport parameter selection

a. Leachate flow volumes

b. An assessment of surrounding hydrogeologic conditions

c. Results from site specific fate and transport analyses that

consider a site's hydrogeologic conditions

d. Distance from the surface impoundment or landfill to the nearest

well and the numbers of persons using those wells

e. The exact location of the affected surface impoundment or

facility (e.g., county, city, latitude and longitude)

C. Exposure:

i. Describe key elements of parameter selection

a. Distance to potential receptor populations

b. Size of potential receptor populations

ii. Describe the extent to which modeling should be used to

estimate risks, including which models should be used to determine

risk, and whether the exposure model should be linked with the selected

fate and transport model.

iii. Describe the extent to which Monte Carlo analysis should be

used to estimate risks

iv. Describe the extent to which the study should focus upon highly

exposed sub-populations versus individuals

v. Describe whether the study should estimate High-End and/or

Central Tendency risks

D. Data QA/QC and Peer Review:

i. Develop a QA Project Plan:

1. data quality objectives;

2. project objectives;

3. sample collection;

4. analysis and testing;

5. quality control;

6. project documentation;

7. organization performing field or laboratory operations

(performance evaluation; internal assessment by QA function; external

assessment; on-site evaluation (field activities, laboratory

activities); QA reports).

ii. Describe how to establish a peer review process, including

composition of the peer review panel.

Terms of Reference/ Evaluation Criteria

To stimulate thinking on this topic and establish criteria for

evaluating methodologies, the Agency has established terms of reference

for the risk assessment. Input Data Requirements--Data collected to

support the risk assessment must be quality controlled, must be

representative of the target universe and must be sufficiently detailed

to support statistical modeling of uncertainty in risk outputs. Release

Estimates--The risk assessment should consider all plausible forms of

release from surface impoundments. Releases to be considered should

include, but not be limited to: releases to groundwater and air from

the unit, overland releases, and releases associated with the dredging,

treatment, and disposal of sludges.

Fate and Transport Modeling--Fate and transport modeling should, to

the extent possible, reflect the state of the art in groundwater and

air dispersion modeling. At a minimum, the fate and transport modeling

should incorporate speciation chemistry to non-toxic forms of chemical

constituents where relevant, and, to facilitate review of the results,

rely on non-proprietary models.

Exposure Assessment--Exposure assessment should consider both

direct and indirect pathways. Constituent-specific estimates of

exposure should reflect cumulative exposure across all relevant

pathways. Pathways should be omitted only after careful consideration

of whether they contribute significantly to total exposure.

Cancer and Non-Cancer Health Risk Assessment--The cancer and non-

cancer health risk assessment methodology should reflect new Agency

guidelines for conducting these types of studies.

Peer Review--The analysis must include provisions for peer review

of proposed methodologies; intermediate results for input data, fate

and transport, exposure assessment, and risk characterization; and,

overall results. Elements of separate methodologies, including the

Agency's own methodology may be combined to form an overall approach to

assess risk. In this case, the overall approach would be subject to

peer review.

III. Assessment of Existing State/ Federal/Tribal Programs:

A. Establish a methodology to conduct a systematic review of

current and future planned regulations that might influence the

management of decharacterized wastewaters at affected facilities.

Include in the methodology a description of information collection

activities and any limitations.

Major Milestones and Preliminary Completion Date

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Milestone Completion date

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1. Meetings with Initiated in April 1996; On-going.

--Industry; and,

--Environmental Groups.

2. Publish Federal Register Notice Soliciting July 1996.

Proposed Methodologies from Commenters, with 60-day

comment period.

3. EPA develops proposed methodology to conduct June-August 1996.

study.

4. Receive proposed methodologies.................. August 1996.

5. Convene EPA workgroup from relevant offices to October 1996.

evaluate proposed methodologies and select one

methodology for peer review.

6. Develop peer review panel for the selected December 1996-February 1997.

methodology.

7. Finalize work plan and methodology.............. April 1997-May 1997.

8. Develop and implement survey and data April 1997-April 1999.

collection, including: EPA-conducted sampling;

pretesting; OMB approval of ICR; full

implementation of survey for several hundred

facilities; data compilation; and quality control

checks.

9. Assess coverage of existing regulations......... September 1997-September 1998.

[[Page 38687]]

10. Reassess risks of the wastewaters; interim April 1997-December 1999.

Report to Congress on risk results.

11. Combine risk results with regulatory review January 2000-July 2000.

results, develop report recommendations, write

draft report.

12. Conduct review and finalize report............. August 2000-March 2001.

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Dated: July 18, 1996.

Elliott P. Laws,

Assistant Administrator, Office of Solid Waste and Emergency Response.

[FR Doc. 96-18836 Filed 7-24-96; 8:45 am]

BILLING CODE 6560-50-P