Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities; Notice of Data Availability

SUMMARY: The Environmental Protection Agency (EPA) is making available

for public comment information relating to its Notice of Proposed

Rulemaking (NPRM) published in the Federal Register on November 20,

1995 (60 FR 57747). That NPRM proposed to amend EPA regulations under

the Resource Conservation and Recovery Act (RCRA) by listing as

hazardous wastes certain petroleum refining waste streams, and to apply

universal treatment standards under the Land Disposal Restrictions

program to the wastes proposed for listing. That NPRM also proposed to

broaden existing RCRA exclusions for the recycling of oil-bearing

residuals in petroleum refineries.

Several weeks before the date of signature of the final rule

published elsewhere in this issue of the Federal Register, EPA received

specific information from one company that owns and operates non-

hazardous waste landfills, some of which received one or more of the

petroleum wastes which the Agency was proposing to list. This company

realized belatedly that, after the effective date of the new listings

for these petroleum wastes, the leachate generated from these landfills

would carry the waste code for one or more of the newly-listed

hazardous wastes, and could be subject to Subtitle C regulation if

collected and actively managed.

EPA is not reopening its settled position that when a waste is

listed as hazardous, all wastes meeting the listing description,

including those disposed before the listing effective date, are now

classified as the listed hazardous waste. The same applies to wastes

derived from the treatment, storage, or disposal of those wastes

(again, a settled position not being reopened). Subtitle C regulation

can apply to such wastes, and to residues derived from such wastes, if

active management occurs after the date the listings become effective

(likewise a settled position not being reopened). However, the late

information does present a legitimate issue as to whether, under

limited circumstances, the listings should apply to leachate derived

from management of these particular wastes. This is because to the

extent these leachates are being adequately managed under the Clean

Water Act (CWA) program, the EPA would prefer to minimize any possible

disruptions to the management of this leachate, and try to integrate

the RCRA and CWA regulatory schemes if possible. There is also an

ongoing rulemaking activity under the Clean Water Act that directly

addresses pretreatment standards and effluent limitations for indirect

and direct discharges of such leachates. Because this issue was brought

to EPA's attention so late, and for other reasons discussed in this

document, EPA believes it needs more time to determine how best to

coordinate these programs with respect to this leachate. Therefore, EPA

is presenting the pertinent information it has received on this

question and soliciting comment on the general issue of whether the

Agency should temporarily defer application of these four new petroleum

waste codes (published elsewhere in today's Federal Register) to

leachate from previously disposed wastes that now meet the listing

description, provided the leachate is treated at Publicly Owned

Treatment Works (POTW) or treated to meet effluent limitations for

direct discharge, pending further study of this issue.

DATES: The Agency is reopening the comment period only for the limited

purpose of obtaining information and views on the new data and

information described in this document. Comments on the additional data

will be accepted through September 8, 1998. This document does not

reopen the comment period for the recently proposed rulemaking on

effluent guidelines and pretreatment standards for landfills (63 FR

6426; February 6, 1998).

ADDRESSES: Commenters must send an original and two copies of their

comments referencing docket number F-98-PR3A-FFFFF to: RCRA Docket

Information Center, Office of Solid Waste (5305G), U.S. Environmental

Protection Agency Headquarters (EPA, HQ), 401 M Street, SW, Washington,

DC 20460. Hand deliveries of comments should be made to the Arlington,

VA, address listed below. Comments may also be submitted electronically

by sending electronic mail through the Internet to:

[email protected]. Comments in electronic format should also

be identified by the docket number F-98-PR3A-FFFFF.

Commenters should not submit electronically any confidential

business information (CBI). An original and two copies of CBI must be

submitted under separate cover to: RCRA CBI Document Control Officer,

Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington,

DC 20460.

Public comments and supporting materials are available for viewing

in the RCRA Information Center (RIC), located at Crystal Gateway I,

First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is

open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal

holidays. To review docket materials, it is recommended that the public

make an appointment by calling (703) 603-9230. The public may copy a

maximum of 100 pages from any regulatory docket at no charge.

Additional copies cost $0.15/page. For information on accessing paper

and/or electronic copies of the document, see the SUPPLEMENTARY

INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing

impaired). In the Washington, DC, metropolitan area, call (703) 412-

9810 or TDD (703) 412-3323. For information on specific aspects of this

document, contact Ross Elliott or Robert Kayser, Office of Solid Waste

(5304W), U.S. Environmental Protection Agency, 401 M Street comment,

SW, Washington, DC 20460. (E-mail addresses and telephone numbers:

[email protected], (703) 308-8748;

[email protected], (703) 308-7304).

SUPPLEMENTARY INFORMATION: All electronic comments must be submitted as

an ASCII file avoiding the use of special characters and any form of

encryption. If comments are not submitted electronically, 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

[[Page 42191]]

result in any advantage or disadvantage to any commenter.

The official record for this action will be kept in paper form, and

will be maintained at the address in ADDRESSES at the beginning of this

document. The index to the docket is available on the Internet. Follow

these instructions to access the information electronically:

www: http://www.epa.gov/epaoswer/osw/hazwaste.htm#id

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/epaoswer

In addition, the document entitled Development Document for

Proposed Effluent Limitations Guidelines and Standards for the

Landfills Point Source Category, EPA-821-R-97-022, January 1998, placed

in the docket for this document, can be obtained through the internet

at www.epa.gov/OST/Rules/2lndfls/techdev.html. EPA will transfer all

comments received electronically into paper form and place them in the

official record, which will also include all comments submitted

directly in writing. The official record is the paper record.

EPA responses to comments, whether the comments are written or

electronic, will be in a document published in the Federal Register or

in a response to comments document placed in the official record for

this rulemaking at the same time this document is published in the

Federal Register. EPA will not immediately reply to commenters

electronically other than to seek clarification of electronic comments

that may be garbled in transmission or during conversion to paper form,

as discussed above.

Background

Very late in the rulemaking process, the Agency was alerted to the

concern (not raised by any commenter during the comment period) that

any new hazardous waste listings for petroleum wastes may have

potentially significant (but as yet undetermined) impacts on the

management of leachate collected from certain non-hazardous waste

landfills. Specifically, one company that owns and operates non-

hazardous waste landfills expressed concern that because some of their

facilities have historically received and disposed of some or all of

the waste streams listed in the final rulemaking (i.e., K169, K170,

K171, and K172) (published elsewhere in today's Federal Register), the

leachate that is collected and managed from these landfills would be

classified by these same waste codes after the effective date of the

new petroleum waste listings. However, if Subtitle C regulation were to

apply to leachate generated from such landfills, leachate now trucked

to POTWs (a practice of particular concern with this company) would, as

a practical matter, no longer be managed by POTWs, since POTWs would

not wish to become facilities subject to RCRA Subtitle C regulation.

This company argued that this could lead to vastly increased treatment

and disposal costs without necessarily any environmental benefit. EPA

is considering whether it would be appropriate to defer temporarily the

application of the new petroleum waste codes to such leachate in order

to avoid disruption of ongoing leachate management activities while the

Agency decides how to integrate the two regulatory schemes, consistent

with RCRA section 1006(b)(1) (which requires EPA to integrate

regulations under RCRA with those of the other statutes implemented by

EPA in a manner that avoids duplication to the maximum extent possible,

consistent with the goals and policies of RCRA and the other statutes).

Applicability of New Listings to Landfill Leachate

Leachate that is derived from the treatment, storage, or disposal

of listed hazardous wastes is classified as a hazardous waste by virtue

of the ``derived-from'' rule in 40 CFR 261.3(c)(2). The Agency has been

very clear in the past on the applicability of hazardous waste listings

to wastes disposed of prior to the effective date of a listing, even if

the landfill ceases disposal of the waste when the waste becomes

hazardous. 53 FR at 31147 (August 17, 1988). EPA also has a well-

established interpretation that listings likewise apply to leachate

derived from the disposal of listed hazardous wastes, including

leachate derived from wastes disposed before a listing effective date

which meet the listing description. Id. EPA's interpretations were

emphatically upheld by the Court of Appeals for the District of

Columbia Circuit in Chemical Waste Management, Inc. v. EPA, 869 F.2d

1526, 1536-37 (D.C. Cir. 1989). None of these issues is reopened by the

present Notice.

Of course, as set out in detail in the August 1988 notice, this

does not mean that landfills holding wastes which are now listed as

hazardous become subject to Subtitle C regulation. However, previously

disposed wastes now meeting the listing description, including residues

such as leachate which are derived from such wastes, which are actively

managed do become subject to Subtitle C regulation. 53 FR at 31149. In

many, indeed most circumstances, active management of leachate would be

exempt from Subtitle C regulation because the usual pattern of

management is discharge either to POTWs via the sewer system, where

leachate mixes with domestic sewage and is excluded from RCRA

jurisdiction (see RCRA Section 1004(27) and 40 CFR 261.4(a)(1)), or to

navigable waters, also excluded from RCRA jurisdiction (see RCRA

Section 1004(27) and 40 CFR 261.4(a)(2)). In addition, management of

leachate in wastewater treatment tanks prior to discharge under the CWA

is also exempt from RCRA regulation (40 CFR 264.1(g)(6)).

The company indicated, however, that these exemptions do not apply

to its current prevalent means of managing its leachate: collection

followed by transport by truck to a POTW (rather than discharge to a

POTW by a sewer system, where leachate would mix with domestic sewage,

which would not trigger Subtitle C, as just explained). The company

also alleged that it would incur large costs because POTWs would no

longer accept the leachate in order to remain outside the Subtitle C

regulatory system. (The company is probably correct as to POTWs'

reaction, although the potential costs the company could incur have not

yet been verified.)

Proposed Clean Water Act Requirements for Leachate from Non-

Hazardous Waste Landfills

EPA's Office of Water recently proposed national effluent

limitations guidelines and pretreatment standards for wastewater

discharges (e.g., leachate) from certain types of landfills. 63 FR 6426

(February 6, 1998). In support of this proposal, EPA conducted a study

of the volume and chemical composition of wastewaters generated by both

Subtitle C (hazardous waste) and Subtitle D (non-hazardous waste)

landfills, including treatment technologies and management practices

currently in use. EPA did not propose pretreatment standards for

Subtitle D landfill wastewaters sent to POTWs because the Agency's

information indicated that such standards were not required due to

several factors, including: (1) Raw leachate data was below published

biological inhibition levels, and (2) lack of pass-through of toxics

(including lack of showing of adverse impact on POTW sludge quality).

63 FR at 6444. For example, the EPA determined, among other things,

that ``the majority of pollutants typically found in raw [non-hazardous

landfill] leachate were at levels comparable to wastewater typically

found at the headworks of a POTW.'' Id. EPA also

[[Page 42192]]

proposed effluent limitations for direct discharges of leachate from

nonhazardous waste landfills. After examining various pollutants of

concern (including conventional, nonconventional, metal, and organic

pollutants), EPA proposed limitations for nine pollutants. 63 FR at

6463. EPA believes that the proposed rules, if promulgated, will help

ensure that leachate is managed effectively while any temporary

exemption is in effect.

Consideration of Temporary Deferral of Applying New Petroleum Waste

Codes to Leachate

Because EPA received this information very late in the rulemaking

process (indeed, the information is not even part of the administrative

record for the final rule), EPA needs more time to evaluate the

potential impacts of the newly-listed waste codes (published in a final

rule elsewhere in today's Federal Register) on the classification of

landfill leachate, and to carefully consider whether or not it is

appropriate to apply the waste codes from one or more of the four

newly-listed petroleum wastes to landfill leachate which is either sent

for treatment at POTWs under circumstances not excluded by Section

261.4(a)(1)(ii), or is directly discharged under Section 402 of the

CWA. As mentioned above, EPA believes it would be appropriate to defer

temporarily the application of the new petroleum waste codes to such

leachate in order to avoid disruption of ongoing leachate management

activities while the Agency decides how to integrate the two regulatory

schemes, consistent with RCRA section 1006(b)(1) (regarding integrating

RCRA regulations with other EPA statutes). See Edison Electric Inst. v.

EPA, 2 F. 3d 438, 451-53 (D.C. Cir. 1993) (temporary deferral of

regulation to determine how best to integrate RCRA rules with another

EPA regulatory system is permissible); see also Military Toxics Project

v. EPA (No. 97-1342 (D.C. Cir. June 30, 1998) (slip op. pp. 18-20)

(permanent deferral to another regulatory system also may be

appropriate). As stated above, it appears that leachate derived from

these newly-listed wastes will be adequately regulated under the CWA.

The Agency is publishing this document in order to make this

information available, and to receive comment on EPA temporarily

deferring, while EPA assesses the permanent integration of the two

regulatory schemes, the application of the new waste codes (K169, K170,

K171, and K172) to landfill leachate that is generated and actively

managed after the effective date of the four new petroleum listings, as

long as all of the following conditions apply.

First, the Agency is considering only whether to temporarily defer

from RCRA regulation leachate from landfills that received and disposed

one or more of the newly-listed petroleum wastes prior to the effective

date of the listing (i.e., landfills that have historically disposed of

these petroleum wastes, which if generated today would meet the new

listing descriptions, but no longer accept these wastes). Second, this

temporary deferral would apply to leachate that is defined as hazardous

waste only by application of one or more of the new petroleum waste

codes, i.e., leachate that is only defined as hazardous waste because

it is derived from K169, K170, K171, or K172, and is not derived from

any other listed waste, and does not exhibit any characteristic of

hazardous waste. Third, the Agency would only temporarily defer from

RCRA regulation leachate that is managed such that discharge is subject

to regulation under 307(b) or 402 of the Clean Water Act (i.e., for

indirect or direct discharges). This temporary deferral would apply to

leachate from point of generation (i.e., when the leachate is first

collected or ``actively managed'') to when it is discharged in

compliance with 307(b) or 402 of the Clean Water Act.

EPA is also considering whether to add a condition that would

prohibit the placement of leachate on the land prior to discharge to a

POTW or to other wastewater treatment systems. EPA is concerned that

the storage of untreated leachate in land-based units, such as surface

impoundments, may be of concern. On the other hand, the Agency does not

wish to discourage effective treatment of the leachate in wastewater

treatment systems that employ secure impoundments prior to discharge to

surface water. To resolve this question, the Agency is seeking comment

on the potential impact of such a condition on the treatment of

leachate at landfills and other treatment facilities.

Should the Agency proceed with a temporary deferral, such a

deferral would most likely be implemented as a new exemption from the

definition of hazardous waste under 40 CFR 261.4(b). The duration of a

temporary deferral would probably be at least until the Agency

completes the pending rulemaking under the Clean Water Act described in

this document. After completion of the Clean Water Act rulemaking, EPA

will consider whether to initiate a rulemaking for a permanent deferral

(i.e., exemption), or alternatively, to remove the exemption and

subject the leachate to Subtitle C regulation.

Information in the Docket and Request for Comment

The EPA has placed in the docket summary information on leachate

characterization submitted by one company that owns and/or operates

over sixty non-hazardous waste landfills, and estimated costs

reflecting Subtitle C management of the leachate (i.e., centralized

waste treatment of leachate diverted from current management at POTWs).

The EPA has also put into the docket a copy of the Office of Water

background document entitled Development Document for Proposed Effluent

Limitations Guidelines and Standards for the Landfills Point Source

Category, EPA-821-R-97-022, January 1998.

The Agency is interested in any comments on the narrow issue of the

classification and management of leachate generated from landfills that

disposed of one or more of the newly-listed petroleum wastes (K169-

K172) prior to the effective date of those listings, where the leachate

is not defined as hazardous under RCRA for any other reason, and is (in

particular) being managed pursuant to Clean Water Act requirements. The

Agency also seeks comment on the possibility of the temporary deferral

described in this document. EPA will not respond to comment regarding

the general proposition that hazardous listings apply to previously

disposed wastes that meet the listing description, nor will EPA reopen

comments on the listings of these wastes, which are issued in a final

rule elsewhere in today's Federal Register.

Dated: July 17, 1998.

Elizabeth A. Cotsworth,

Acting Director, Office of Solid Waste.

[FR Doc. 98-19930 Filed 8-5-98; 8:45 am]

BILLING CODE 6560-50-P