# 60 FR 43654: Land Disposal RestrictionsPhase IV: Issues Associated With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes

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URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_95-20623

## Section

- **Citation:** 60 FR 43654
- **Heading:** Land Disposal RestrictionsPhase IV: Issues Associated With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 60 / 60 FR 43654

## Text

Part II

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 148 et al.

Land Disposal Restrictions--Phase IV: Issues Associated With Clean
Water Act Treatment Equivalency, and Treatment Standards for Wood
Preserving Wastes and Toxicity Characteristic Metal Wastes; Proposed
Rule

Proposed Rules
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 268, and 271

[EPA530-Z-95-011; FRL-5280-6]
RIN 2050 AE05

Land Disposal Restrictions--Phase IV: Issues Associated With
Clean Water Act Treatment Equivalency, and Treatment Standards for Wood
Preserving Wastes and Toxicity Characteristic Metal Wastes

AGENCY: Environmental Protection Agency (EPA, the Agency).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is addressing issues
arising from the September 25, 1992 decision of the U.S. Court of
Appeals in Chemical Waste Management v. EPA, 976 F. 2d (D.C. Cir. 1992)
on the equivalency of treatment in wastewater treatment systems
regulated under the Clean Water Act (CWA) to treatment required by the
Resource Conservation and Recovery Act (RCRA). Specifically, the Agency
is considering whether to regulate potential releases, to air or ground
water, of hazardous constituents from surface impoundments treating
wastes that were hazardous when generated, but have been diluted to
render them nonhazardous. Such wastes are prohibited from land disposal
unless adequately pretreated.
In addition, EPA is proposing treatment standards under the land
disposal restrictions (LDR) program for wastes from wood preserving
operations and for Toxicity Characteristic (TC) metal wastes. These
treatment standards, when finalized, must be met in order to land
dispose these hazardous wastes
r them nonhazardous. Such wastes are prohibited from land disposal
unless adequately pretreated.
In addition, EPA is proposing treatment standards under the land
disposal restrictions (LDR) program for wastes from wood preserving
operations and for Toxicity Characteristic (TC) metal wastes. These
treatment standards, when finalized, must be met in order to land
dispose these hazardous wastes.
These potential requirements and treatment standards must be
proposed by August 11, 1995 to satisfy the terms of a proposed consent
decree and a settlement agreement.
Today's proposal also includes simplified land disposal
requirements, streamlined state authorization procedures, a proposal
not to ban ``nonamenable'' wastes from treatment impoundments, and
discussion of a possible exclusion from regulations for certain
recycled wastes from wood preserving operations.

DATES: Comments on this proposed rule must be submitted by November 20,
1995.

ADDRESSES: The public must send an original and two copies of their
comments to Docket Number F-95-PH4P-FFFFF, located in the EPA RCRA
Docket, U.S. Environmental Protection Agency, room 2616, 401 M Street,
SW., Washington, DC 20460. (Also see the section under SUPPLEMENTARY
INFORMATION: regarding the paperless office effort for submitting
public comments.) The RCRA Docket is open from 9:00 am to 4:00 pm
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.
pm
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 FURTHER INFORMATION CONTACT:
For general information, contact the RCRA Hotline at (800) 424-9346
(toll-free) or (703) 412-9810. For specific information, contact the
Waste Treatment Branch (5302W), Office of Solid Waste (OSW), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; phone (703) 308-8434. For technical information regarding
standards for Clean Water Act (CWA) systems, ask for Mary Cunningham or
Elaine Eby; for technical information on the treatment standards for
wood preserving wastes, ask for Jose Labiosa; for TC metal wastes, ask
for Anita Cummings. For policy questions, ask for Sue Slotnick. For
questions on the clean-up of the Part 268 regulations, ask for Douglas
Heimlich. For information on the capacity analyses, ask for Pan Lee of
the Capacity Programs Branch (OSW), phone (703) 308-8440. For
information on the regulatory impact analyses, contact Linda Martin of
the Regulatory Analysis Branch (OSW), phone (202) 260-0062.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort
ck. For
questions on the clean-up of the Part 268 regulations, ask for Douglas
Heimlich. For information on the capacity analyses, ask for Pan Lee of
the Capacity Programs Branch (OSW), phone (703) 308-8440. For
information on the regulatory impact analyses, contact Linda Martin of
the Regulatory Analysis Branch (OSW), phone (202) 260-0062.

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'' campaign. For further information on the submission of
diskettes, contact the Waste Treatment Branch at the phone number
listed above.
Glossary of Acronyms and Terms
advantage 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'' campaign. For further information on the submission of
diskettes, contact the Waste Treatment Branch at the phone number
listed above.
Glossary of Acronyms and Terms

BDAT--Best Demonstrated Available Technology
CAA--Clean Air Act
CWA--Clean Water Act
EP--Extraction Procedure
HSWA--Hazardous and Solid Waste Amendments (to RCRA)
ICR--ignitable, corrosive, and reactive wastes, or, Information
Collection Request (in section XI.D.)
ICRT--ignitable, corrosive, reactive, and toxic characteristic
wastes
ICT--ignitable, corrosive, and toxic characteristic wastes
LDR--Land Disposal Restrictions
MCL--Maximum Contaminant Level
MSW--Municipal Solid Waste
MSWLF--Municipal Solid Waste Landfill
NESHAP--National Emission Standards for Hazardous Air Pollutants
NPDES--National Pollutant Discharge Elimination System
OCPSF--Organic Chemicals, Plastics, and Synthetic Fibers industry
ppmw--parts per million by weight
RCRA--Resource Conservation and Recovery Act
TC--Toxicity Characteristic
TCLP--Toxicity Characteristic Leaching Procedure
UHC--underlying hazardous constituent
UTS--Universal Treatment Standards
VOCs--volatile organic compounds

Table of Contents

I. Options to Ensure That Underlying Hazardous Constituents in
Decharacterized Wastes are Substantially Treated Rather Than
Released Via Leaks, Sludges, and Air Emissions from Surface
Impoundments
A. Summary
B. Background
C. Applicability of Potential Approaches to ``Industrial D''
Management Units
D. Potentially Affected Industries
E. Results of Sampling and Risk Assessment
1. Sampling data
2. Risks
F. Overview of Options
G. Option 1
H. Option 2
1. Introduction
2. Applicability
3. Proposed Management Standards for Air Emissions
4. Proposed Management Standards for Leaks
5. Proposed Management Standards for Sludges
6
of Potential Approaches to ``Industrial D''
Management Units
D. Potentially Affected Industries
E. Results of Sampling and Risk Assessment
1. Sampling data
2. Risks
F. Overview of Options
G. Option 1
H. Option 2
1. Introduction
2. Applicability
3. Proposed Management Standards for Air Emissions
4. Proposed Management Standards for Leaks
5. Proposed Management Standards for Sludges
6. Recordkeeping Requirements for Leaks and Sludges

7. Sampling and Analysis
I. Option 3
II. Proposal Not to Ban Nonamenable Wastes from Land-Based
Biological Treatment Systems
A. Background
B. Rationale for Proposing Not to Ban Nonamenable Wastes From
Biological Treatment Systems
III. Improvements to Land Disposal Restrictions Program
A. Clean up of Part 268 Regulations
B. Simplification of Treatment Standard for Waste Code F039
C. POLYM Method of Treatment for High-TOC Ignitable D001 Wastes
IV. Exclusion for Recycled Wood Preserving Process Wastewaters
V. Treatment Standards for Newly Listed and Identified Wastes
A. Background
B. Treatment Standards for Soil Contaminated with Newly Listed
Wastes
C. Treatment Standards for Wood Preserving Wastes
1. Identification of wastes
2. Proposed Treatment Standards
3. Review of Available Characterization Data
4. Determination of Best Demonstrated Available Technology
(BDAT)
5. Proposed Regulation of Dioxin and Furan Constituents in F032
D. Treatment Standards for Toxic Characteristic Metal Wastes
1. Rationale for Applying Universal Treatment Standards (UTS) to
Toxic Characteristic Metal Wastes (D004-D011)
2. Proposed Revision of UTS for Beryllium
3. Treatment Standard for Previously Stabilized Mixed
Radioactive and Characteristic Metal Wastes
VI. Mineral Processing Waste Issues
VII. Environmental Justice
A. Applicability of Executive Order 12898
B. Potential Effects
VIII. Capacity Determinations
A. Introduction
B. Capacity Analysis Results Summary
1. Available Capacity
2. Surface Impoundment Sludges, Leaks, and Air Emissions
3
ium
3. Treatment Standard for Previously Stabilized Mixed
Radioactive and Characteristic Metal Wastes
VI. Mineral Processing Waste Issues
VII. Environmental Justice
A. Applicability of Executive Order 12898
B. Potential Effects
VIII. Capacity Determinations
A. Introduction
B. Capacity Analysis Results Summary
1. Available Capacity
2. Surface Impoundment Sludges, Leaks, and Air Emissions
3. Newly Identified Characteristic Metal Wastes
4. Wood Preserving Wastes
5. Mixed Radioactive Wastes
6. Phase IV Wastes Injected into Class I Wells
IX. State Authority
A. Applicability of Rules in Authorized States
B. Abbreviated Authorization Procedures for Specified Portions
of the Land Disposal Restrictions Phase II, III, and IV Rules
C. Effect on State Authorization
X. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
1. Methodology Section
2. Results
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
XI. Unfunded Mandates Reform Act
I. Options to Ensure That Underlying Hazardous Constituents in
Decharacterized Wastes are Substantially Treated Rather Than Released
Via Leaks, Sludges, and Air Emissions from Surface Impoundments

A. Summary

EPA's recently proposed Phase III LDR rule (60 FR 11702, March 2,
1995), addressed wastewater discharges involving characteristic wastes
that are deactivated through dilution and treated in surface
impoundments. The Phase III rule proposed treatment standards that can
be met at or prior to the point of discharge, (also referred to as
``end-of-pipe''). Today's proposed rule addresses whether such
treatment in surface impoundments results in cross-media releases, via
leakage, air emissions, or disposal of untreated sludges, that can be
so excessive that the impoundment effectively functions as a disposal
unit.
The Agency is essentially examining standards for air emissions,
leaks to ground water, sludges, and wastewater discharges (proposed in
Phase III) at the same time
whether such
treatment in surface impoundments results in cross-media releases, via
leakage, air emissions, or disposal of untreated sludges, that can be
so excessive that the impoundment effectively functions as a disposal
unit.
The Agency is essentially examining standards for air emissions,
leaks to ground water, sludges, and wastewater discharges (proposed in
Phase III) at the same time. This provides an opportunity to
comprehensively examine all the risks, applicable treatment
technologies, benefits, costs, and existing regulatory controls
associated with addressing decharacterized wastes that are treated in
surface impoundments. EPA received public comments to the Phase III
rule, but because of scheduling constraints, was not able to fully
review them before issuing this notice. Decisions on controlling
releases will be made after careful consideration of public comments on
both proposals. The Agency may choose either to not promulgate LDR
requirements for these releases, or to set management standards when
warranted by excessive cross-media transfer of hazardous constituents.
A third option is to require that decharacterized wastes be treated
(not merely diluted) to meet Universal Treatment Standards (UTS) before
entry into surface impoundments. EPA is not in favor of the third
option, as it is likely to disrupt treatment needed for compliance with
the Clean Water Act (CWA) limitations and standards, and impose high
costs without targeting risks adequately.

B. Background
option is to require that decharacterized wastes be treated
(not merely diluted) to meet Universal Treatment Standards (UTS) before
entry into surface impoundments. EPA is not in favor of the third
option, as it is likely to disrupt treatment needed for compliance with
the Clean Water Act (CWA) limitations and standards, and impose high
costs without targeting risks adequately.

B. Background

In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the
Resource Conservation and Recovery Act (RCRA), Congress prohibited land
disposal of hazardous waste unless the waste meets treatment standards
established by EPA. The statute requires that these treatment standards
substantially diminish the toxicity or mobility of hazardous waste such
that short- and long-term threats to human health and the environment
are minimized. RCRA section 3004(m). In response, EPA has developed a
series of rulemakings under the Land Disposal Restrictions (LDR)
Program setting forth standards for treatment of hazardous waste.
The Third Third rule (55 FR 22520, June 1, 1990) contained
treatment standards and prohibitions for hazardous wastes that
exhibited one or more of the following characteristics: Ignitability,
corrosivity, reactivity, or Extraction Procedure (EP) toxicity (40 CFR
261.21-261.24). The Agency also established a ``deactivation''
treatment standard for ignitable, corrosive, and reactive (ICR) wastes.
Under this standard, ICR wastes could be diluted until they no longer
exhibited the hazardous characteristic (i.e., the waste was
``deactivated''). Once deactivated, these wastes could be placed in
land disposal units without further treatment, unless the Agency
specifically required that hazardous constituents in the waste be
treated. The Agency further established that prohibitions on dilution
did not apply to most characteristic wastes that are decharacterized by
dilution and then managed in disposal units subject to regulation under
the CWA or the Safe Drinking Water Act
placed in
land disposal units without further treatment, unless the Agency
specifically required that hazardous constituents in the waste be
treated. The Agency further established that prohibitions on dilution
did not apply to most characteristic wastes that are decharacterized by
dilution and then managed in disposal units subject to regulation under
the CWA or the Safe Drinking Water Act.
These portions of the rule were partially vacated and remanded in
Chemical Waste Management v. EPA, 976 F. 2d 2, cert. denied 113 S.Ct.
1961 (1992). In CWM v. EPA, the court held that wastes decharacterized
by dilution may be placed in a nonhazardous surface impoundment or a
nonhazardous injection well only if the toxic constituents in that
waste are treated to the same extent as they would be under the
treatment standards mandated by RCRA section 3004(m)(1). 976 F. 2d at
23. In other words, treatment standards must result in the treatment of
all toxic constituents (i.e., the underlying hazardous constituents, or
UHCs) to minimize threats to human health and the environment.
Treatment that only removes the hazardous characteristic does not
necessarily suffice.
The principal holdings of CWM v. EPA with respect to characteristic
wastes were 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 threats posed by
does not
necessarily suffice.
The principal holdings of CWM v. EPA with respect to characteristic
wastes were 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 threats posed by

hazardous wastes, as well as removal of the characteristic property,
id. at 16, 17, 23; as a result, dilution is permissible as an exclusive
method of treatment only for those characteristic wastes that do not
contain UHCs ``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, no longer exhibit a characteristic(s), and are then
managed in centralized wastewater management land disposal units (i.e.,
subtitle D surface impoundments or injection wells) are legal only if
it can be demonstrated that hazardous constituents are reduced,
destroyed, or immobilized to the same extent as they would be pursuant
to otherwise-applicable RCRA treatment standards, id. at 7. EPA refers
to this as the ``equivalency determination'' and it is at the heart of
the discussion of potential cross-media transfers in today's rule. The
court further held that the deactivation treatment standard for
ignitable and corrosive wastes (which allowed the hazardous
characteristic to be removed by any type of treatment, including
dilution) did not fully comport with RCRA section 3004(m). This was
because the deactivation treatment standard could be achieved by
dilution, and section 3004(m) ``requires that any hazardous waste be
treated in such a way that hazardous constituents be removed from the
waste before it enters the environment.'' 976 F. 2d at 24. The court
thus remanded the rules dealing with centralized wastewater management
involving land disposal
section 3004(m). This was
because the deactivation treatment standard could be achieved by
dilution, and section 3004(m) ``requires that any hazardous waste be
treated in such a way that hazardous constituents be removed from the
waste before it enters the environment.'' 976 F. 2d at 24. The court
thus remanded the rules dealing with centralized wastewater management
involving land disposal.
EPA addressed one portion of the equivalence issue when it proposed
the Phase III LDR rule (60 FR 11702, March 2, 1995). That rule
proposes, among other things, treatment standards for the end-of-pipe
discharges from surface impoundments to surface waters or POTWs. For
further information on the court decision and the Agency's responses,
see the January 19, 1993, Notice of Data Availability (58 FR 4972) and
Supplementary Information Report; the LDR emergency Interim Final rule
(58 FR 29860, May 24, 1993); the LDR Phase II rule (59 FR 47982,
September 19, 1994); and the LDR Phase III proposed rule (60 FR 11702,
March 2, 1995).
The Agency entered into a settlement agreement setting out a
schedule for fulfilling the court's mandate. The settlement agreement
reads:

EPA agrees to sign a proposed rulemaking on the issue of
equivalency of treatment in a CWA system that uses surface
impoundments . . . EPA agrees to describe in detail in that notice
of proposed rulemaking (but not necessarily recommend or endorse)
the following option: regulations limiting release from surface
impoundments used in CWA treatment systems of hazardous constituents
from ICT wastes managed in such impoundments, where the release is
due to volatilization or leakage, and treatment standards under
section 3004(m) for hazardous constituents from ICT wastes in
impoundment sludges. After considering any public comments received,
EPA agrees to sign a notice of final rulemaking taking final action
on the issue and option * * *
systems of hazardous constituents
from ICT wastes managed in such impoundments, where the release is
due to volatilization or leakage, and treatment standards under
section 3004(m) for hazardous constituents from ICT wastes in
impoundment sludges. After considering any public comments received,
EPA agrees to sign a notice of final rulemaking taking final action
on the issue and option * * *

Therefore, the Agency is required to address these issues at this time
although there may have been higher environmental priorities if EPA had
sole discretion to order its agenda.
The central legal and policy issue addressed in this proposal is if
and when releases of hazardous constituents from surface impoundments
which are part of a treatment train for decharacterized wastes are so
extensive as to effectively invalidate the treatment process as a means
of LDR compliance. Put another way, the D.C. Circuit intended to allow
continued use of treatment surface impoundments to treat
decharacterized wastes, provided the extent of treatment is equivalent
to usual RCRA treatment. If there are releases of hazardous
constituents to the environment before treatment concludes, in the form
of air releases, leaks to ground water, or deposition in sludges, has
permanent disposal occurred so as to invalidate the treatment process?
EPA's view is that, at the least, something more than the bare
release of a hazardous constituent is needed to trigger this
invalidation. The court did not explicitly state that its equivalence
test, or any other part of the opinion, necessitated control of all
hazardous constituent releases from surface impoundments. For example,
one of the court's formulations of its holding is that ``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
t, or any other part of the opinion, necessitated control of all
hazardous constituent releases from surface impoundments. For example,
one of the court's formulations of its holding is that ``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. The focus here
is on the wastewaters being treated, and the amount of hazardous
constituents removed from those wastewaters, not other types of wastes
(like sludges) or other types of releases. See also id. at 7, 20 (focus
on treatment of waste ``streams'', i.e. liquids in an impoundment); 23
n. 8 (reduction of mass loadings of hazardous constituents of
wastestream entering and exiting an impoundment); 24 (court indicates
that decharacterized wastes are not held permanently in impoundments,
which is true of wastewaters but not for all wastewater treatment
sludges).
The court likewise did not see that hazardous constituents in
deposited sludges must be treated. The court in fact did not speak to
the principle stated by EPA in the Third Third rule that generation of
a new treatability group is considered to be a new point of generation
and thus a new point for determining whether a waste is prohibited. 55
FR at 22661-662. Under this principle, unchallenged in the litigation,
wastewater treatment sludges not exhibiting a characteristic are not
prohibited wastes, notwithstanding that they may derive from prohibited
wastewaters.
Perhaps more fundamentally, the court clearly did not intend to
require that treatment standards be met invariably by treatment
preceding impoundment-based management systems: ``RCRA requires some
accommodation with [the] Clean Water Act''. 976 F. 2d at 20; see also
id
ot exhibiting a characteristic are not
prohibited wastes, notwithstanding that they may derive from prohibited
wastewaters.
Perhaps more fundamentally, the court clearly did not intend to
require that treatment standards be met invariably by treatment
preceding impoundment-based management systems: ``RCRA requires some
accommodation with [the] Clean Water Act''. 976 F. 2d at 20; see also
id. at 23, indicating that to some degree RCRA need not mandate
wholesale disruption of existing wastewater treatment impoundments,
providing the CWA treatment system really achieves treatment equivalent
to RCRA's: ``In other words, what leaves a CWA treatment facility can
be no more toxic than if the wastestreams were individually treated
pursuant to the RCRA treatment standards.'' A draconian reading that
any releases of hazardous constituents from a treatment impoundment
effectively invalidate that impoundment's treatment operations could
thwart the court's holding that such treatment is to be allowed
provided equivalent treatment occurs.
There are suggestions in the opinion, however, that at some point
the LDR standard is not satisfied if the magnitude of hazardous
constituent releases is sufficiently great. The whole thrust of the
opinion is to assure that RCRA treatment requirements are not thwarted
by cross-media transfers of untreated hazardous constituents, whether
by dilution or by escape from treatment units. Id. at 22, 24, 29-30;
see also id. at 17, 18 vacating treatment standards for ignitable and
reactive wastes because the Agency had done nothing to address the risk
of excessive volatilization or reactivity during the treatment process.
The court also 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
g to address the risk
of excessive volatilization or reactivity during the treatment process.
The court also 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, or
from inadequately treated sludges, it can be argued that permanent
disposal of untreated hazardous constituents is occurring, although,
since no treatment unit is absolutely release-free (there are certainly
releases of hazardous constituents from combustion units, for example),
the more fruitful inquiry is the extent of the release.
Putting this together, EPA initially believes the best reading of
this part of the opinion to be to distinguish between impoundments
performing essentially as treatment units from those that are also
operating as permanent disposal units due to the extent of cross-media
transfers of untreated hazardous constituents. The portion of the
opinion vacating standards for ignitable and reactive wastes supports
such a reading, since the court required the Agency to find ``that the
risk of * * * emissions * * * is minimal, or * * * require actions to
minimize that risk.'' 976 F. 2d at 17, thus focusing on the extent of
release from the treatment unit, not just the fact that a release
occurred. Under this reading, the Agency could evaluate whether the
risk from the various types of releases is great enough to warrant
control. A finding that there is insufficient risk would mean that the
impoundment is not engaging in a type of cross-media transfer of
untreated hazardous constituents that invalidates its treatment
function, and therefore that decharacterized wastes can be treated in
the impoundment to effect the necessary accommodation between RCRA and
the CWA
types of releases is great enough to warrant
control. A finding that there is insufficient risk would mean that the
impoundment is not engaging in a type of cross-media transfer of
untreated hazardous constituents that invalidates its treatment
function, and therefore that decharacterized wastes can be treated in
the impoundment to effect the necessary accommodation between RCRA and
the CWA.
A second pervasive distinction in the opinion is between treatment
units (including treatment surface impoundments) and permanent disposal
units, accommodation to allow centralized wastewater management being
allowed for the former but not the latter. See, e.g., 976 F. 2d at 24,
25. There are some potential differentiations among types of surface
impoundments along these lines. A common division of wastewater
treatment is into primary, secondary, and tertiary treatment. Primary
treatment involves removal of conventional pollutants (e.g., oil and
grease, total suspended solids) or equalization. Secondary treatment
involves aggressive treatment steps to remove or destroy hazardous
constituents, examples being biological treatment for organics, or
chemical precipitation for metals. Tertiary treatment involves
polishing effluent before final discharge. Impoundments engaged in
primary treatment most clearly resemble hazardous constituent disposal
units because such units treat hazardous constituents only
incidentally. Secondary and tertiary impoundments, on the other hand,
do engage in significant treatment of hazardous constituents. Thus,
possible Phase IV controls would logically be directed at primary
impoundments, the type of wastewater management impoundment most
resembling permanent disposal due to the lesser degree of treatment
occurring in the unit
s treat hazardous constituents only
incidentally. Secondary and tertiary impoundments, on the other hand,
do engage in significant treatment of hazardous constituents. Thus,
possible Phase IV controls would logically be directed at primary
impoundments, the type of wastewater management impoundment most
resembling permanent disposal due to the lesser degree of treatment
occurring in the unit.
It is also possible to argue that any leak to ground water or
deposition of hazardous constituents in sludge at levels exceeding the
UTS (or some comparable release of hazardous constituents to air)
renders treatment across a wastewater treatment system not equivalent.
EPA does not view this reading as compelled. There is no such explicit
language in the opinion. As already stated, such a reading also would
likely destroy the very accommodation between RCRA and the CWA the
court deemed necessary. Nor would such a reading make policy sense if
releases from treatment surface impoundments remain insignificant, and
the treatment system is in fact achieving the same mass reductions of
hazardous constituents, through destruction and removal rather than
through release, as conventional RCRA treatment (see 976 F. 2d at 23 n.
8).
EPA's present, preferred reading of the opinion is consequently to
establish the parameters which distinguish permanent land disposal
impoundments from those performing the type of treatment to be
accommodated under the court's opinion. These parameters can be defined
by limiting the extent of hazardous constituent releases to air, ground
water and through sludges to levels that do not pose significant risk.
In addition, primary treatment impoundments are the most natural target
for these controls.

C. Applicability of Potential Approaches to ``Industrial D'' Management
Units
nt to be
accommodated under the court's opinion. These parameters can be defined
by limiting the extent of hazardous constituent releases to air, ground
water and through sludges to levels that do not pose significant risk.
In addition, primary treatment impoundments are the most natural target
for these controls.

C. Applicability of Potential Approaches to ``Industrial D'' Management
Units

Today's options to address surface impoundment releases
specifically apply to Subtitle D (nonhazardous) surface impoundments
that receive decharacterized wastes. Subtitle D surface impoundments
that do not manage decharacterized wastes are not affected. The options
in today's proposal do not necessarily set a precedent for any future
regulations concerning non-hazardous industrial wastes. The Agency, in
partnership with the States, is investigating the possibility of
developing voluntary standards for the safe management of non-hazardous
industrial wastes.

D. Potentially Affected Industries

Based on an analysis of available information, the Agency estimates
that 300 facilities are managing, in CWA treatment systems,
decharacterized wastes containing hazardous constituents above UTS.
(Hereafter, the use of the term ``CWA treatment systems'' includes CWA-
equivalent systems as defined by 40 CFR 268.37, and other nonhazardous
waste surface impoundments.) Wastewater treatment in surface
impoundments involves three basic functions:
Equalization/settling (known as primary or prebiological
treatment);
Biological treatment (known as secondary treatment); and
Postbiological settling/polishing (known as tertiary or
postbiological treatment).
Equalization/settling ponds settle solids out of the wastewaters
and equalize concentrations to subsequent treatment units. Being the
first units in the system to receive the wastewaters, they receive the
highest loadings of contaminants.
Biological treatment units function primarily to break down or
remove organic compounds in the wastewater
(known as tertiary or
postbiological treatment).
Equalization/settling ponds settle solids out of the wastewaters
and equalize concentrations to subsequent treatment units. Being the
first units in the system to receive the wastewaters, they receive the
highest loadings of contaminants.
Biological treatment units function primarily to break down or
remove organic compounds in the wastewater. At this point in the
treatment process, the concentrations of organics in the surface
impoundment are greatly reduced, and therefore, the risks from leaks
and sludges are considerably lower in these units. Part of the
concentration reduction, however, is due to volatilization, and air
emissions can be significant from such units.
Postbiological treatment units will receive contaminants at
significantly reduced concentrations. As a result, lower concentrations
of hazardous constituents can be expected in the air emissions, leaks,
and sludges, and therefore resultant risks are also lower.

E. Results of Sampling and Risk Assessment

1. Sampling Data
The Agency reviewed available information on air emissions, leaks,
and sludges. These data were collected for the development of effluent
guidelines under the CWA. They cover industries that typically treat
wastewater in biological treatment systems that incorporate surface
impoundments. During the last two years, the Agency was informed by
representatives of the regulated industry that they would provide EPA
with more current and complete data characterizing wastewaters in
surface impoundments receiving decharacterized waste. At the time of
publication of this proposal, EPA had not received any such data.
n biological treatment systems that incorporate surface
impoundments. During the last two years, the Agency was informed by
representatives of the regulated industry that they would provide EPA
with more current and complete data characterizing wastewaters in
surface impoundments receiving decharacterized waste. At the time of
publication of this proposal, EPA had not received any such data.

Information available to the Agency indicates that decharacterized
wastestreams containing UHCs may leak out of surface impoundments at
levels of concern. These data also indicate that there may be a
significant number of wastestreams that could exceed the regulatory
threshold for total volatile organics. In addition, the Agency
conducted a review of the chemical concentrations of UHCs in
decharacterized wastes (based on the effluent guidelines data) and the
concentrations of constituents of concern in various RCRA F and K
wastewaters. Based on this analysis, the Agency found that in many
instances that decharacterized wastestreams have similar hazardous
constituents present and at similar concentrations as listed hazardous
wastestreams. Estimated sludge concentrations based on industrial
wastewater treatment system data indicate that surface impoundments
handling decharacterized wastes are likely to generate sludge that
contain UTS constituents in excess of the treatment standards. EPA
solicits additional data, particularly constituent concentrations from
actual sampling of wastewaters in surface impoundments receiving
decharacterized wastes. A detailed discussion of the data sources,
analyses, and specific examples of releases above UTS levels supporting
this proposal can be found in the document entitled, ``Technical
Support Document--Options for Management Standards for Leaks, Sludges,
and Air Emissions From Surface Impoundments Accepting Decharacterized
Wastes'' which is located in the RCRA docket.
2
g
decharacterized wastes. A detailed discussion of the data sources,
analyses, and specific examples of releases above UTS levels supporting
this proposal can be found in the document entitled, ``Technical
Support Document--Options for Management Standards for Leaks, Sludges,
and Air Emissions From Surface Impoundments Accepting Decharacterized
Wastes'' which is located in the RCRA docket.
2. Risks
Although the wastes affected by the court opinion and the
equivalence options in this section of the preamble are not hazardous
wastes, they are likely to contain some of the same hazardous
constituents, possibly even at the same levels, as are found in listed
and characteristic wastes. The hazardous constituents in listed and
characteristic wastes must be treated to meet UTS before land disposal.
EPA conducted a screening level risk assessment that did not take
into account site-specific hydrogeologic conditions or relative
proximity of drinking water wells to surface impoundments. Using the
sampling data described above, EPA estimated baseline (current) risks
from releases from leaks and air emissions, as well as ground water
contamination from sludge disposal. Samples were taken at: raw
wastewater, equalization ponds, influent to pre-bio ponds, pre-bio
ponds, effluent from pre-bio ponds, influent to biological ponds,
effluent from biological ponds, effluent from post-bio ponds, influent
to wastewater system, and effluent from wastewater system. (The terms
``pond'' and ``surface impoundment'' are used interchangeably in this
preamble.) Using Office of Water Effluent Guidelines data, EPA
calculated central tendency and high-end baseline risks from leaks and
sludges for wastewater treatment systems in five industries:
Pharmaceuticals; Pulp and Paper; Pesticides; Metal Products and
Machinery; and Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF)
' and ``surface impoundment'' are used interchangeably in this
preamble.) Using Office of Water Effluent Guidelines data, EPA
calculated central tendency and high-end baseline risks from leaks and
sludges for wastewater treatment systems in five industries:
Pharmaceuticals; Pulp and Paper; Pesticides; Metal Products and
Machinery; and Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF). Using Generator Survey point-of-generation data, EPA
calculated central tendency and high-end baseline risks from leaks and
sludges for wastewater treatment systems from Inorganic Chemicals; and,
Electronic and Electrical Components. The Agency used standard exposure
assumptions of 1.4 liters/day ingestion, and a 9-year exposure period
for 350 days per year. Cancer risks are summed across constituents.
Following are the highest risks EPA estimated. These risks are from
pre-biological surface impoundments unless otherwise noted. (The
samples from influent to a biological pond are assumed to be measures
of constituent concentrations of wastewaters in pre-bio ponds rather
than bio ponds.) For the central tendency analysis of risks from leaks,
EPA found potentially significant health risks in the Pharmaceuticals,
OCPSF, Inorganic Chemicals, and Electronic and Electrical Components
industries. In the Pharmaceuticals industry, one raw wastewater sample
out of 11 and one biological pond influent sample out of 7 may pose
potentially significant cancer health risk exceeding the 10-5
cancer risk threshold; methylene chloride and acrylonitrile,
respectively, are the constituents of concern. In the OCPSF industry,
EPA found three raw wastewater samples out of 51 indicate cancer risks
in excess of a 10-5 individual lifetime cancer risk level.
Acrylonitrile is the most prevalent carcinogenic constituent in amounts
above levels of concern
cancer health risk exceeding the 10-5
cancer risk threshold; methylene chloride and acrylonitrile,
respectively, are the constituents of concern. In the OCPSF industry,
EPA found three raw wastewater samples out of 51 indicate cancer risks
in excess of a 10-5 individual lifetime cancer risk level.
Acrylonitrile is the most prevalent carcinogenic constituent in amounts
above levels of concern. Also in the OCPSF industry, nine samples at
the biological pond influent out of 34 at the biological pond influent
indicate cancer risks in excess of a 10-5 level, of which six
samples indicate cancer risks in excess of 10-4. In the Inorganic
Chemical industry, one point of generation sample out of 51 may pose
potentially significant cancer health risks in excess of the 10-5
cancer risk threshold, and one point of generation sample exceeds the
10-4 cancer risk threshold. Methylene chloride and beryllium are
the constituents of concern. In the Electric and Electrical Components
industry, 32 point of generation samples contain potentially
significant cancer health risks in excess of 10-5, of which 13
samples present cancer risk between 10-4 to 10-5; 11 samples
present cancer risk between 10-3 to 10-4; and, 8 present
cancer risk in excess of 10-3. Methylene chloride and beryllium
are the constituents of concern. The Agency continues to evaluate
additional industries based on available data. The risk analyses for
these data will be placed in the RCRA docket for this proposal.
In its analysis of leaks using high-end assumptions, EPA found
potentially significant health risks (above 10-5) at sampling
points in the Pharmaceuticals, Pesticides, Pulp & Paper, OCPSF,
Inorganic Chemicals, and Electronics and Electrical Components
industries
dditional industries based on available data. The risk analyses for
these data will be placed in the RCRA docket for this proposal.
In its analysis of leaks using high-end assumptions, EPA found
potentially significant health risks (above 10-5) at sampling
points in the Pharmaceuticals, Pesticides, Pulp & Paper, OCPSF,
Inorganic Chemicals, and Electronics and Electrical Components
industries. In the Pharmaceuticals industry, 14 samples out of 38 at
the raw wastewater, equalization pond, biological pond influent, and
effluent from post-biological ponds (a measure of risk from a post-bio
pond) present potentially significant cancer health risks in the range
of 10-3 to 10-5; constituents of concern include methylene
chloride, acrylonitrile, chloroform, 1,2-dichlorethane and alpha-bhc.
In the Pesticides industry, three samples out of 11 at the influent to
a pre-bio pond exceed the 10-5 cancer risk threshold; the
constituent of concern for all three samples is methylene chloride. In
the Pulp & Paper industry, three samples of 12 at the influent to the
wastewater treatment system and one sample of 15 at the effluent from
the wastewater treatment system (sample from a bio or post-bio pond)
may pose potentially significant sources of cancer risk (estimates in
the range of 10-4 to 10-5); constituents of concern are
chloroform, 1,2-dichloroethane, 1,1,2,2 tetrachloroethane and bis (2-
ethylhexyl) phthalate at the influent and methylene chloride and
chloroform at the effluent. In the OCPSF industry, about one-third (20
of 51) samples of the raw wastewater samples present cancer risks in
excess of 10-5. One half (9 samples) present cancer risks in
excess of 10-4. About one-third (13 of 34) of the biological pond
influent samples indicated cancer risks in excess of 10-5; all
samples but one indicated cancer risks in excess of 10-4. In the
Inorganic Chemicals industry, two point of generation samples present
potentially significant cancer health risk in excess of 10-3;
sks in
excess of 10-5. One half (9 samples) present cancer risks in
excess of 10-4. About one-third (13 of 34) of the biological pond
influent samples indicated cancer risks in excess of 10-5; all
samples but one indicated cancer risks in excess of 10-4. In the
Inorganic Chemicals industry, two point of generation samples present
potentially significant cancer health risk in excess of 10-3;

methylene chloride and beryllium are the constituents of concern.
Finally, in the Electronics and Electrical Components industry, 11
point of generation samples (out of 295) present potentially
significant cancer health risk in excess of 10-4; 21 samples
present cancer health risk in excess of 10-3; methylene chloride
and beryllium are the constituents of concern.
For sludges, EPA estimated the risks from disposal in an unlined,
nonhazardous landfill after the sludges are dredged from a surface
impoundment. Using estimated sludge concentrations in the OCPSF
industry, EPA conducted both a central tendency and high-end analysis.
In the central tendency analysis, one pre-bio sample (of 87) presents
cancer risk in excess of 10-4 and one bio sample (of 74) presents
risk in excess of 10-5; acrylonitrile is the constituent causing
both exceedances. In the high-end analysis, two pre-bio samples (of 87)
present cancer risk in excess of 10-5; and one bio sample (of 74)
presents cancer risks in excess of 10-4; acrylonitrile and 1,4-
dichlorobenzene are the causes.
To assess the potential risk posed by air emissions, EPA examined
samples at the point of generation of the wastewater. Across all
industries, one-fifth of samples (290 to 363 of 1562 samples) exceed
100 parts per million (ppmw) by weight of volatile organic compounds
(VOCs)
one bio sample (of 74)
presents cancer risks in excess of 10-4; acrylonitrile and 1,4-
dichlorobenzene are the causes.
To assess the potential risk posed by air emissions, EPA examined
samples at the point of generation of the wastewater. Across all
industries, one-fifth of samples (290 to 363 of 1562 samples) exceed
100 parts per million (ppmw) by weight of volatile organic compounds
(VOCs). Under the recent RCRA Subpart CC final standards, air emission
control requirements of the rule apply to affected units if hazardous
waste placed in the unit is determined to have an annual average
volatile organic concentration equal to or greater than 100 ppmw based
on the organic composition of the hazardous waste at the point of waste
origination. See Sec. 264.1083 (promulgated at 59 FR 62928 (December 6,
1994)). Preliminary results show that 15 percent of samples (87 to 117
of 690 samples) from the Pharmaceutical, Pulp and Paper, Pesticide, and
Metal Product and Machinery industries exceed 100 ppmw. In the OCPSF
industry, 48 to 59 percent of the sample facilities (75 to 92 of 157
facilities) assessed had at least one sample of wastewater that
exceeded the 100 ppmw limit. For a detailed discussion of risks and
regulatory impacts, see the background document ``Regulatory Impact
Analysis of the Proposed Phase IV Land Disposal Restrictions Rule,''
which was placed in the docket for today's proposed rule.

F. Overview of Options
nt of the sample facilities (75 to 92 of 157
facilities) assessed had at least one sample of wastewater that
exceeded the 100 ppmw limit. For a detailed discussion of risks and
regulatory impacts, see the background document ``Regulatory Impact
Analysis of the Proposed Phase IV Land Disposal Restrictions Rule,''
which was placed in the docket for today's proposed rule.

F. Overview of Options

In general terms, the risks due to cross-media releases have the
potential to vary from insignificant to significant. EPA is considering
three types of options for addressing this issue. The first option is
not to issue LDR requirements, but rather to rely on other Agency
programs to address these releases under current rules or future
efforts (i.e., Clean Air Act (CAA) standards, RCRA Corrective Action,
State programs, and others). The second option is to develop controls
that focus on the subset of situations that pose excessive risk and are
not addressed by existing requirements or those under development.
Finally, the third option is to require that decharacterized wastes be
treated (not merely diluted) to meet Universal Treatment Standards
(UTS) before entry into surface impoundments. This forces modification
at facilities that do, as well as those that do not, pose risks from
leaks, air emissions, and sludges. None of the options would apply to
units which satisfy the Minimum Technology Requirements or the
statutory no-migration standard.
The Agency is neutral between the first and second options. The
second option is necessarily more complicated than the other two, and
so is discussed here at greater length; it should not thereby be
inferred that this is EPA's preferred approach. The third option was
also considered, but EPA is not recommending it because of potential
disruption to needed wastewater treatment, high costs to affected
industries, and lack of targeted risk reduction.
G. Option 1
nd option is necessarily more complicated than the other two, and
so is discussed here at greater length; it should not thereby be
inferred that this is EPA's preferred approach. The third option was
also considered, but EPA is not recommending it because of potential
disruption to needed wastewater treatment, high costs to affected
industries, and lack of targeted risk reduction.
G. Option 1

Option 1 relies on the Phase III rule to satisfy the equivalence
standard enunciated by the D.C. Circuit. As noted, that rule would link
LDR and CWA end-of-pipe standards to assure that mass removal of UHCs
occurs to the same extent in CWA impoundment-based treatment systems as
it does in conventional RCRA treatment systems. As discussed above, the
court's opinion does not explicitly require more.
If ostensible treatment impoundments generally acted as conduits
for extensive cross-media transfers of untreated hazardous
constituents, it is not clear that the standard enunciated by the court
would be satisfied. However, there are existing or forthcoming
regulatory mechanisms which tend to protect against such wholesale
releases.
Following is a brief description of what coverage federal and State
regulations may provide to control excessive releases from surface
impoundments receiving decharacterized wastes. For more information,
see the following in the RCRA Docket: ``Technical Support Document--
Options for Management Standards for Leaks, Sludges, and Air Emissions
From Surface Impoundments Accepting Decharacterized Wastes,'' and the
Executive Summary of the ``Regulatory Impact Analysis of the Proposed
Phase IV Land Disposal Restrictions Rule.''
The Toxicity Characteristic (TC), which exists for 39 of the 212
UHCs, cannot be exceeded in the wastewater or sludges contained in the
surface impoundments, and therefore, provides some control. See, e.g.
976 F.2d at 24 fn. 10
undments Accepting Decharacterized Wastes,'' and the
Executive Summary of the ``Regulatory Impact Analysis of the Proposed
Phase IV Land Disposal Restrictions Rule.''
The Toxicity Characteristic (TC), which exists for 39 of the 212
UHCs, cannot be exceeded in the wastewater or sludges contained in the
surface impoundments, and therefore, provides some control. See, e.g.
976 F.2d at 24 fn. 10. Also, approximately 42% of the facilities with
impoundments which receive decharacterized wastes are RCRA Treatment,
Storage, or Disposal Facilities (TSDFs). RCRA TSDFs have at least one
unit at the facility which requires a RCRA Subtitle C permit. Under
RCRA Sec. 3004(u), the primary cleanup authority for permitted TSDFs,
releases of hazardous constituents from solid waste management units at
such facilities are subject to corrective action. TSDFs that have not
yet received permits, and are operating under interim status, are
subject to cleanup under Sec. 3008(h), which provides EPA with similar
authority to compel corrective action. Surface impoundments affected by
today's proposed rule are solid waste management units; releases from
these impoundments are subject to corrective action on a site-specific
basis. While the State or EPA has the authority to control emissions
from Subtitle D surface impoundments at Subtitle C TSDFs not only
during corrective action, but also during normal operations, they may
choose not to do so, primarily because of priorities, resources, and
perceived risk.
EPA also is presently implementing Section 112 of the CAA to impose
technology-based standards for hazardous air pollutants at enumerated
major sources, requiring control by means of Maximum Available Control
Technology (MACT). These rules are subject to explicit deadlines, and
already address wastewater treatment impoundments in certain industries
potentially affected by the Phase IV rule (e.g
A also is presently implementing Section 112 of the CAA to impose
technology-based standards for hazardous air pollutants at enumerated
major sources, requiring control by means of Maximum Available Control
Technology (MACT). These rules are subject to explicit deadlines, and
already address wastewater treatment impoundments in certain industries
potentially affected by the Phase IV rule (e.g. the Hazardous Organics
National Emission Standards for Hazardous Air Pollutants (NESHAP) at 59
FR 19402, April 22, 1994), or will address such impoundments. Several
rules have been promulgated addressing air emissions from portions of
the hazardous of the organic, benzene, chromium electroplating,
ethylene oxide, halogenated solvent, polymers and resins, petroleum,
and ferroalloy industries. Examples of forthcoming

standards are the MACT for the pharmaceutical industry and the pulp and
paper industry. In addition, NESHAPs that may affect portions of the
petroleum, metal plating, organic chemical and inorganic chemical
industries are scheduled for promulgation in 1995 and 1996. EPA
believes, however, that some surface impoundments in the potentially
affected universe of industries will not be covered by these CAA
regulations. For a detailed description of coverage by CAA rules, see
the Table entitled ``NESHAP Programs Identified in Semiannual
Regulatory Agenda'' in the ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes,'' and see also the
background document entitled ``Description of Process to Determine the
Potentially Affected Universe for the Phase IV LDR Rule.''
With regard to other on-going efforts, EPA is actively
investigating whether to list additional wastes as hazardous, and is
investigating the possibility of developing voluntary guidelines for
Subtitle D facility standards that would more broadly address non-
hazardous industrial wastes
titled ``Description of Process to Determine the
Potentially Affected Universe for the Phase IV LDR Rule.''
With regard to other on-going efforts, EPA is actively
investigating whether to list additional wastes as hazardous, and is
investigating the possibility of developing voluntary guidelines for
Subtitle D facility standards that would more broadly address non-
hazardous industrial wastes.
In addition to federal controls, some States have environmental
controls on surface impoundments that receive nonhazardous industrial
waste, such as ground water monitoring for hazardous constituents,
leachate collection systems, sludge management programs, and cleanup
authorities. Thirty-six States have at least some regulations that may
be relevant to the cross-media concerns in this rule. Among those
States, requirements to prevent ground water contamination from surface
impoundments vary considerably. States with the most requirements
include such controls as specific liner requirements, leachate
collection and removal systems, ground water monitoring, closure and
post-closure plans, corrective action, and permits. In contrast, States
with less comprehensive programs may require only two or three of these
requirements, or may apply them only to dischargers, only to non-
dischargers, or in other ways limit the applicability of their
programs. However, EPA does not have information on key factors to help
it assess the degree to which State programs can be relied upon to
prevent excessive releases from surface impoundments via leakage. For
example, it is not known which constituents are monitored, what
concentrations are considered acceptable levels, or whether the State
requirements mentioned above apply to existing units, or only to new
ones
does not have information on key factors to help
it assess the degree to which State programs can be relied upon to
prevent excessive releases from surface impoundments via leakage. For
example, it is not known which constituents are monitored, what
concentrations are considered acceptable levels, or whether the State
requirements mentioned above apply to existing units, or only to new
ones. For a more detailed assessment of how State programs protect
ground water from contamination from the type of surface impoundments
at issue in this rule, see ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes,'' in the RCRA Docket.
State controls on sludge from nonhazardous surface impoundments are
generally far less than the controls for preventing leaks. EPA's
information is that thirty-seven states have no sludge requirements.
Other states, such as Alabama, Florida, and Missouri, have minimal
requirements under their National Pollutant Discharge Elimination
System (NPDES) permits for sludge management. Pennsylvania requires
sludge to be removed annually from storage surface impoundments. In
California, sludge must be disposed in a landfill or monofill. One of
the states with more controls is Michigan, which requires a plan for
sludge monitoring, treatment, transportation, storage, and disposal,
along with a hydrogeological study if there is a threat to ground
water.
With respect to air emissions, the Agency recognizes that State
Implementation Plans, or SIPS, which are mandated under the Clean Air
Act, may provide some control. EPA solicits information on the extent
to which State and Tribal programs control leaks, sludge, and air
emissions from surface impoundments receiving decharacterized wastes.

H. Option 2
udy if there is a threat to ground
water.
With respect to air emissions, the Agency recognizes that State
Implementation Plans, or SIPS, which are mandated under the Clean Air
Act, may provide some control. EPA solicits information on the extent
to which State and Tribal programs control leaks, sludge, and air
emissions from surface impoundments receiving decharacterized wastes.

H. Option 2

1. Introduction
Option 2 is an intermediate approach between saying the LDRs do not
apply and saying they do apply in the traditional manner. In defining
this regulatory option for consideration, EPA tried to accomplish seven
basic objectives: (1) Focus controls on those situations that present
risks that amount to significant permanent disposal; (2) avoid
duplication with other Agency requirements; (3) provide flexibility in
dealing with site-specific factors and cost-effective control
alternatives; (4) recognize the effective treatment function performed
by wastewater treatment impoundments, and avoid needlessly invalidating
such function; (5) identify controls that protect human health and the
environment; (6) minimize implementation burden; and (7) create
incentives for alternative controls (state, tribal or federal) to
address significant releases from such units and so render LDR controls
unnecessary.
2. Applicability
To focus on risks, Option 2 excludes from control those situations
which are expected to pose little risk. First it excludes wastewaters
that do not have, at the point of generation, hazardous constituents
present above the UTS. Such wastes obviously are not prohibited from
land disposal. Second, wastewaters with de minimis amounts of hazardous
constituents are excluded--i.e., not prohibited. (Criteria for
determining de minimis situations would be identical to those proposed
in the Phase III rule for discharges to UIC wells.) Third, sludges and
leaks from biotreatment and post-biotreatment units would not be
covered due to the lower risks posed by these units
land disposal. Second, wastewaters with de minimis amounts of hazardous
constituents are excluded--i.e., not prohibited. (Criteria for
determining de minimis situations would be identical to those proposed
in the Phase III rule for discharges to UIC wells.) Third, sludges and
leaks from biotreatment and post-biotreatment units would not be
covered due to the lower risks posed by these units. Fourth,
characteristic wastes which at the point of generation do not exceed
100 ppmw of total volatile organics on an annual average would not be
subject to air emission controls. Fifth, surface impoundments
containing underlying hazardous constituents at concentrations below a
trigger level (e.g., 10 times the Maximum Contaminant Level, or MCL)
would not be addressed for leaks. Finally, none of the Option 2
standards would apply if the impoundment satisfies Minimum Technology
Requirements or the statutory no migration standard. These
applicability principles are explained in more detail below.
To avoid duplication with other requirements, EPA would defer to
other federal rules which establish controls addressing the same
situations. Deferral would occur where the existing program addressed
the specific UHCs of concern. In the case of air emissions, EPA would
defer to standards regulating total volatile organics, as adequately
covering air emissions of UHCs from this type of treatment. In addition
to existing regulations, there are some CAA air emission limits under
development. Inefficiencies and confusion could occur if Option 2
controls were applied and soon superseded by upcoming CAA standards.
Facilities subject to CAA standards for hazardous air pollutants (in
particular, those promulgated pursuant to CAA Sec. 112) in the near
future thus would not be covered by Option 2 air emission controls. In
the case of releases to ground water, EPA would defer to certain
existing programs, as is explained in more detail below
ntrols were applied and soon superseded by upcoming CAA standards.
Facilities subject to CAA standards for hazardous air pollutants (in
particular, those promulgated pursuant to CAA Sec. 112) in the near
future thus would not be covered by Option 2 air emission controls. In
the case of releases to ground water, EPA would defer to certain
existing programs, as is explained in more detail below.
This option also would recognize the existence of the types of
controls mentioned above in connection with

Option 1. Thus, if an impoundment is located at a permitted TSDF, no
further control would be adopted under Phase IV. EPA Regional, State,
or Tribal limits which control releases of specific UHCs from
impoundments also would be considered controlling and so make Phase IV
controls unnecessary.
Option 2 provides flexibility in dealing with site-specific factors
and cost-effective control alternatives. Facilities have the choice of
treating the characteristic wastestream to meet UTS before entering a
surface impoundment, thus avoiding any management standards enumerated
in the option. This option also incorporates alternative means of
compliance proposed in the Phase III rule, namely an exception for de
minimis decharacterized wastestreams (i.e., prohibited wastewaters
containing de minimis amounts of UHCs) and an option allowing the
requisite mass reduction of hazardous constituents to be achieved by
means of pollution prevention rather than wastewater treatment. For a
simplified guide to which facilities would be affected by option 2, see
the following flow chart entitled Figure 1.

BILLING CODE 6560-50-P

[GRAPHIC][TIFF OMITTED]TP22AU95.000

BILLING CODE 6560-50-C
g de minimis amounts of UHCs) and an option allowing the
requisite mass reduction of hazardous constituents to be achieved by
means of pollution prevention rather than wastewater treatment. For a
simplified guide to which facilities would be affected by option 2, see
the following flow chart entitled Figure 1.

BILLING CODE 6560-50-P

[GRAPHIC][TIFF OMITTED]TP22AU95.000

BILLING CODE 6560-50-C

For those facilities which do not meet the criteria to screen out
the low risk situations, and are not subject to other federal, State,
or Tribal limits to address the UHCs of concern, Option 2 would provide
controls similar to those currently applied to other industrial wastes.
Air emissions would be subject to the substantive requirements for
surface impoundments of RCRA Subpart CC. (59 FR 62896; December 6,
1994.) Leaks would necessitate ground water monitoring for UHCs, and
corrective action would be triggered if ground water exceeds levels of
concern. Sludges would be subject to UTS when removed from the surface
impoundment. The following sections provide a more detailed description
of these potential requirements.
To minimize implementation burdens make many of the requirements
self-implementing, and set minimal reporting/recordkeeping
requirements. All of the requirements would be effective two years
after promulgation, due to a proposed national capacity variance (see
Section VIII of this rule). Under circumstances when the air emission,
leaks, or sludge control equipment required to comply with the standard
cannot be operational at an existing facility by the two-year deadline,
an implementation schedule for installation of the equipment would have
to be developed and placed in the facility operating records. In such
cases, the facility owner or operator would have to have all controls
in operation no later than 48 months after the effective date
ol equipment required to comply with the standard
cannot be operational at an existing facility by the two-year deadline,
an implementation schedule for installation of the equipment would have
to be developed and placed in the facility operating records. In such
cases, the facility owner or operator would have to have all controls
in operation no later than 48 months after the effective date.
Furthermore, surface impoundments that have stopped receiving
decharacterized wastewaters on or before the date of promulgation would
not be subject to any of the requirements proposed today. Surface
impoundments that stop receiving decharacterized wastewaters after the
date of promulgation and on or before the date two years after
promulgation would be subject only to the recordkeeping requirements.
Where alternative non-RCRA standards are set by EPA, States, or Tribes
(e.g., CAA standards for air emissions), deferral to standards means
there is no RCRA requirement.
The following sections describe management standards the Agency is
considering for leaks, sludges, and air emissions from surface
impoundments accepting decharacterized wastes. EPA seeks comment on
these standards, including the possibility of adopting standards for
certain of the potential problems and not others, e.g., finalizing
standards for leaks and air emission control, but not for sludge
control.
Additionally, Option 2 would apply controls on air emissions for
all three types of surface impoundments (pre-biological, biological,
and post-biological), while limiting sludge and leak controls to pre-
biological units only, based on the risk findings. The statute already
specifies more lenient regulatory controls for biological and post-
biological treatment impoundments. Section 3005(j)(3) exempts from
minimum technology requirements hazardous waste biological and post-
biological surface impoundments
logical, biological,
and post-biological), while limiting sludge and leak controls to pre-
biological units only, based on the risk findings. The statute already
specifies more lenient regulatory controls for biological and post-
biological treatment impoundments. Section 3005(j)(3) exempts from
minimum technology requirements hazardous waste biological and post-
biological surface impoundments. Such impoundments must in general be
performing aggressive biological treatment (or performing post-
biological treatment), be in compliance with CWA permits and with
generally-applicable ground water monitoring requirements, and be
achieving significant degradation of toxic pollutants. This provision
recognizes that such treatment impoundments both perform an important
treatment function and pose less risk than other impoundment types.
Today's proposal is premised on similar findings. EPA seeks comment on
all combinations of applying the three types of controls (leaks,
sludges, and air emissions) to all three types of impoundments.
3. Proposed Management Standards for Air Emissions
a. Scope. Option 2 would extend requirements of Subpart CC
regulations to surface impoundments in CWA, CWA-equivalent, or
nonhazardous wastewater treatment systems that accept wastes
decharacterized by dilution. Subpart CC rules would not apply directly
under this option, since that rule applies only to units managing
hazardous waste. Sec. 264.1080(a). However, substantive requirements,
borrowed from that rule, could apply to surface impoundments receiving
prohibited, decharacterized wastes. The specific standards in this
option would be: general standards (264.1082), waste determination
procedures (Sec. 264.1083), surface impoundment unit standards
(Sec. 264.1085), closed-vent and control device standards
(Sec. 264.1087), inspection and monitoring procedures (Sec. 264.1088),
recordkeeping requirements (Sec. 264.1089), and reporting requirements
(Sec. 264.1090)
acterized wastes. The specific standards in this
option would be: general standards (264.1082), waste determination
procedures (Sec. 264.1083), surface impoundment unit standards
(Sec. 264.1085), closed-vent and control device standards
(Sec. 264.1087), inspection and monitoring procedures (Sec. 264.1088),
recordkeeping requirements (Sec. 264.1089), and reporting requirements
(Sec. 264.1090). The provisions would only apply to affected surface
impoundments used to manage decharacterized wastes if the
decharacterized waste (containing UHCs above UTS at the point of
generation) placed in the unit is determined to have an average
volatile organic concentration greater than or equal to 100 ppmw based
on the organic composition of the waste at the point of generation.
Averaging periods of up to 1 year in duration would be utilized for
each individual wastestream. The types of requirements EPA is
considering are quite similar to those required generally under the CAA
for control of volatile organic hazardous air pollutants (e.g., see the
Hazardous Organic NESHAP (59 FR 19402, April 22, 1994) and the Benzene
Waste Operations NESHAP (58 FR 3072, January 7, 1993)). For a
simplified guide to the management standards for air emissions, see the
following flow chart entitled Figure 2.

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b. Applicability. For each surface impoundment identified in
today's rule to which the extended subpart CC requirements apply, the
owner or operator would be required to use the air emission controls
specified herein except when the decharacterized waste placed in the
surface impoundment meets certain conditions.
(i.) Volatile organic concentration exemption
AU95.001

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b. Applicability. For each surface impoundment identified in
today's rule to which the extended subpart CC requirements apply, the
owner or operator would be required to use the air emission controls
specified herein except when the decharacterized waste placed in the
surface impoundment meets certain conditions.
(i.) Volatile organic concentration exemption. Under this option, a
surface impoundment accepting decharacterized waste would not be
considered to engage in impermissible transfer of untreated hazardous
constituents to the ambient air if all the prohibited waste (i.e., the
decharacterized waste) placed in the impoundment is determined to have
an average volatile organic concentration less than 100 ppmw based on
the organic composition of the waste at the point of generation.
Establishing the trigger concentration of point of generation, rather
than point of placement in an impoundment, is designed to prevent
dilution and volatilization of organics in the waste. 59 FR at 62915.
This feature of the option thus dovetails with the central concern of
the D.C. Circuit in allowing dilution rather than destruction/removal
via treatment for hazardous constituents.
(ii.) Treated hazardous waste exemption. Under this option, each
affected surface impoundment that manages a characteristic waste that
has been decharacterized by dilution but contains UHCs above UTS and
has an average volatile organic concentration equal to or greater than
100 ppmw, as determined by the procedures found in Sec. 264.1083, is
required to be managed in accordance with the applicable Subpart CC
requirements. See Sec. 264.1085
is option, each
affected surface impoundment that manages a characteristic waste that
has been decharacterized by dilution but contains UHCs above UTS and
has an average volatile organic concentration equal to or greater than
100 ppmw, as determined by the procedures found in Sec. 264.1083, is
required to be managed in accordance with the applicable Subpart CC
requirements. See Sec. 264.1085. Realizing that many organic UHCs
likely to be present in characteristic waste being treated in a surface
impoundment are also VOCs, and because the Agency wishes to be
consistent with other air regulations and therefore necessitate
control, the Agency believes that total VOCs is an appropriate measure
for determining when potential releases through air emissions would be
excessive. 976 F.2d at 17. The owner or operator would install and
operate the specified air emission controls on every affected unit used
in the waste management sequence from the point of generation (as it
applies to the specific prohibited wastestream) through the point where
the organics in the waste are removed or destroyed in accordance with
Sec. 264.1082. If the decharacterized wastestream is not treated to
meet these requirements, then all surface impoundments at the facility
used in the waste management sequence for this decharacterized waste
would be required to use the air emissions controls specified in the
extended subpart CC surface impoundment standards.
The extended subpart CC standard would thus provide owners or
operators of surface impoundments accepting decharacterized wastes with
several alternatives for determining when wastes have already been
treated sufficiently so that surface impoundments would not have to
meet the air emission control requirements. Put another way, the
organic component of the prohibited wastes would be fully treated
before land disposal and so the impoundment would not be subject to
control
e impoundments accepting decharacterized wastes with
several alternatives for determining when wastes have already been
treated sufficiently so that surface impoundments would not have to
meet the air emission control requirements. Put another way, the
organic component of the prohibited wastes would be fully treated
before land disposal and so the impoundment would not be subject to
control. Types of treatment processes that would obviate the need for
further control are an organic destruction, biological degradation, or
organic removal process that reduces the organic content of the
decharacterized waste and is designed and operated in accordance with
certain conditions specified in the rule, or combustion in an
incinerator, boiler or industrial furnace.
The requirements for a destruction, biological degradation, or
removal process that reduces the organic content of the waste are
specified in the extended Subpart CC rule as follows:

(1) It must reduce the volatile organic concentration of the
waste to meet a site-specific treatment process exit concentration
limit determined by an equation (specified in the rule) that
accounts for the portion of the reduction due to dilution; or
(2) It must be a single process that achieves an organic
reduction efficiency of 95 percent or greater on a mass basis, and
reduces the average volatile organic concentration of the
wastestream exiting the process to a level less than 50 ppmw; or
ocess exit concentration
limit determined by an equation (specified in the rule) that
accounts for the portion of the reduction due to dilution; or
(2) It must be a single process that achieves an organic
reduction efficiency of 95 percent or greater on a mass basis, and
reduces the average volatile organic concentration of the
wastestream exiting the process to a level less than 50 ppmw; or
(3) It must be a biological process that either (a) achieves an
organic reduction efficiency equal to or greater than 95 percent,
and achieves an organic biodegradation efficiency for the process
equal to or greater than 95 percent, or (b) achieves a total actual
organic mass biodegradation rate for all decharacterized wastes
treated by the process equal to or greater than the required organic
mass removal rate for the process.

c. Surface impoundment management standards. If the prohibited,
decharacterized wastes are not pretreated, the requirements under the
subpart CC standards for surface impoundment air emission control
equipment specify that the owner or operator install and operate on
each affected surface impoundment a cover (an air supported structure
or cover) that is vented through a closed-vent system to a control
device meeting the requirements specified in 264.1085(d). As an
alternative, an owner or operator may place the waste in a surface
impoundment equipped with a floating membrane cover meeting the
requirements specified in 264.1085(e).
d. Closed-vent system and control device requirements. Since
emissions from impoundments would be captured and vented, this option
contains provisions to assure that the vented emissions are treated
properly before release. See 976 F.2d at 17
ner or operator may place the waste in a surface
impoundment equipped with a floating membrane cover meeting the
requirements specified in 264.1085(e).
d. Closed-vent system and control device requirements. Since
emissions from impoundments would be captured and vented, this option
contains provisions to assure that the vented emissions are treated
properly before release. See 976 F.2d at 17. The subpart CC standards,
which would be utilized under this option, require that each control
device achieve at least a 95 percent reduction in the total organic
content of the vapor stream vented to the device or, in the case of an
enclosed combustion device, a reduction of the total organic content of
the vapor stream to a level less than or equal to 20 ppmw on a dry
basis corrected to 3 percent oxygen. These requirements are generally
the same as those used in EPA air rules. See 59 FR 19402 and 59 FR
62896.
e. Inspection and monitoring. To ensure that emission control
equipment is properly operated and maintained, the extended subpart CC
standards would require the owner and operator to visually inspect
certain emission control equipment items semiannually. For example,
emission control equipment covers on surface impoundments would be
checked semiannually by facility employees to ensure that (1) equipment
is being used properly (e.g., covers are closed and latched except when
an opening must be used to add, remove, inspect, or sample the waste in
the surface impoundment or to inspect, maintain, replace, or repair
equipment located inside the surface impoundment or to vent gases or
vapors from the surface impoundment) and (2) equipment is being
maintained in good condition (e.g., no visible holes, gaps, tears, or
splits have developed in covers).
Continuous monitoring of control device operation is required under
the subpart CC standards
surface impoundment or to inspect, maintain, replace, or repair
equipment located inside the surface impoundment or to vent gases or
vapors from the surface impoundment) and (2) equipment is being
maintained in good condition (e.g., no visible holes, gaps, tears, or
splits have developed in covers).
Continuous monitoring of control device operation is required under
the subpart CC standards. This involves the use of automated
instrumentation to measure critical operating parameters that indicate
whether the control device is operating correctly or is malfunctioning.
Semiannual leak detection monitoring using Method 21 under 40 CFR part
60, appendix A, is required for certain cover components to ensure
gaskets and seals are in good condition and for closed-vent systems to
ensure all fittings remain leak-tight. In addition, each closed-vent
system must be monitored for leaks using Method 21 at least once per
year.
The extended subpart CC standards would require that the owner or

operator repair a cover fitting found to be leaking within 15 days of
detection. Repair of control equipment on a surface impoundment may be
delayed beyond 15 calendar days under certain circumstances. To delay
repair, the owner or operator would have to document that the repair
cannot be completed without emptying the contents of the unit and also
that removing the unit from service would result in the unscheduled
cessation of production from the process unit or operation of the waste
management unit that is generating the decharacterized waste. Repair of
this control equipment would have to be completed the next time the
process unit or waste management unit is generating the decharacterized
waste managed in the surface impoundment is shut down.
f. Recordkeeping requirements. The extended requirements of the
subpart CC standards would require the owner or operator to record
certain information in the on-site facility operating logs or files
this control equipment would have to be completed the next time the
process unit or waste management unit is generating the decharacterized
waste managed in the surface impoundment is shut down.
f. Recordkeeping requirements. The extended requirements of the
subpart CC standards would require the owner or operator to record
certain information in the on-site facility operating logs or files.
This information is to be readily available for review by authorized
representatives of the EPA. Consistent with 40 CFR 264.73 and 40 CFR
265.73, the rule requires that air emission control equipment design
records and certain other records be maintained in the facility
operating record until facility closure. Records and results of waste
determinations, inspections, and monitoring are required to be kept for
at least three years from the date of entry.
The information to be collected and recorded includes: the results
of all waste determinations such as of volatile organic concentrations
at the point of waste generation and organic vapor pressure; design
specifications for closed-vent systems and control devices and certain
control equipment; emission control equipment inspection and monitoring
results; Methods 27 test results; control device exceedances and
actions taken to remedy them; leak repairs; management of carbon
removed from carbon adsorption systems; identification of incinerators,
boilers, or industrial furnaces used to treat decharacterized waste in
accordance with the general requirements of the rule; documentation for
biological wastewater treatment units using air emission controls in
accordance with the rule requirements; and identification of equipment
fittings designated as unsafe or difficult to monitor or inspect.
g. Reporting requirements. The extended requirements of subpart CC
standards would require an owner or operator to submit reports to the
EPA only when circumstances occur at the facility resulting in
noncompliance with certain provisions of the rule
rols in
accordance with the rule requirements; and identification of equipment
fittings designated as unsafe or difficult to monitor or inspect.
g. Reporting requirements. The extended requirements of subpart CC
standards would require an owner or operator to submit reports to the
EPA only when circumstances occur at the facility resulting in
noncompliance with certain provisions of the rule. Each report required
under the extended subpart CC standards would be submitted to the EPA
Regional office having jurisdiction for that particular location. The
report would be signed and dated by an authorized representative of the
facility owner or operator.
An owner or operator subject to the extended requirements of 40 CFR
264 subpart CC would have to report to the EPA all circumstances
resulting in placement of a decharacterized waste in a surface
impoundment subject to the proposed rule and not using air emission
controls required by the rule when either of the following conditions
occur: (1) The characteristic waste has a volatile organic
concentration equal to or greater than 100 ppmw as determined on a
mass-weighted average basis at the point of waste origination, or (2)
the process used to treat the characteristic waste fails to meet the
applicable conditions specified in the rule. The owner or operator
would have to submit a written report within 15 calendar days of the
time that the owner or operator becomes aware of the circumstance.
An owner or operator subject to the extended requirements of 40 CFR
part 264, subpart CC and using a control device in accordance with the
requirements of the rule would be required to submit a semiannual
written report to the EPA. This report would describe each occurrence
during the previous 6-month period when a control device is operated
continuously for 24 hours or longer in noncompliance with the
applicable operating values defined in 40 CFR 264.1035(c)(4) or when a
flare is operated with visible emissions as defined in 40 CFR
264.1033(d)
he rule would be required to submit a semiannual
written report to the EPA. This report would describe each occurrence
during the previous 6-month period when a control device is operated
continuously for 24 hours or longer in noncompliance with the
applicable operating values defined in 40 CFR 264.1035(c)(4) or when a
flare is operated with visible emissions as defined in 40 CFR
264.1033(d). An owner or operator would not be required to submit this
report for a 6-month period during which all control devices at a
facility subject to the extended subpart CC standards are operated by
the owner or operator so that during no period of 24 hours or longer
did a control device operate continuously in noncompliance with the
applicable operating values defined in the rule.
4. Proposed Management Standards for Leaks
a. Scope. If surface impoundments receiving decharacterized wastes
(i.e., prohibited wastes) are leaking excessively, arguably disposal of
untreated UHCs is occurring at a level which invalidates the treatment
function of the impoundment (i.e., which constitutes an impermissible
cross-media transfer of hazardous constituents. 976 F.2d at 17.). In
addressing this possibility, this option presents facilities with a
sequence of monitoring, detection, and correction mechanisms to assure
that impoundments do not leak UHCs at these levels, and thus allows
continued use of the impoundment as part of a system achieving RCRA-
equivalent treatment. Thus, facilities choosing to adopt the ground
water protection approach set out below could continue to use
impoundments to treat decharacterized wastewaters.
An alternative to adopting a ground water protection program is to
treat decharacterized wastes before they reach the impoundment, to
segregate them altogether, or to retrofit the impoundment so that it
meets section 3005(j)(11) minimum technology requirements
to adopt the ground
water protection approach set out below could continue to use
impoundments to treat decharacterized wastewaters.
An alternative to adopting a ground water protection program is to
treat decharacterized wastes before they reach the impoundment, to
segregate them altogether, or to retrofit the impoundment so that it
meets section 3005(j)(11) minimum technology requirements. These
options remain available at any time to a facility, so that a facility
would not be locked in to the ground water protection alternative if it
wishes to pursue alternative means of compliance. There is a caveat,
however. If a facility chooses to comply with the ground water
protection alternative and later detects impermissible levels of
contamination in the ground water at the well sites, the contamination
would still have to be remediated as set out in this proposed rule,
even if the facility begins to divert or pretreat the prohibited
characteristic wastestream at that time. The logic for this is that
there would have been documented disposal of prohibited wastes not
treated to meet LDR standards. In such circumstances, the Agency has
available to it the remedy that the illegally disposed waste must be
retrieved and properly managed. (See U.S. v. Structural Metals, Inc.
Civil Action No. SA--91--CA--201 (W.D. TX May 27, 1992)--a consent
decree requiring that 3600 tons of illegally disposed hazardous waste
be removed from a landfill and properly treated before being disposed.)
Option 2 would adopt, with modifications, certain sections of the
Municipal Solid Waste Landfill rule (referred to herein as the MSWLF
rule) at 40 CFR Part 258 Subpart E, for the control of leaks and the
application of corrective action to the following affected units:
surface impoundments in CWA, CWA-equivalent, or nonhazardous wastewater
treatment systems that accept wastes decharacterized by dilution. The
specific standards in this option include portions of ground water
monitoring systems (Sec
red to herein as the MSWLF
rule) at 40 CFR Part 258 Subpart E, for the control of leaks and the
application of corrective action to the following affected units:
surface impoundments in CWA, CWA-equivalent, or nonhazardous wastewater
treatment systems that accept wastes decharacterized by dilution. The
specific standards in this option include portions of ground water
monitoring systems (Sec. 258.51); ground water sampling and analysis
requirements (Sec. 258.53); assessment monitoring program
(Sec. 258.55); assessment of corrective action measures (Sec. 258.56);
selection of remedy (Sec. 258.57); implementation of the corrective
action

program (Sec. 258.58). For a simplified guide to applicability criteria
and management standards for leaks, see Figure 3.

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b. Applicability. The proposed management standards for leaks would
only apply to owners and operators of facilities that generate
characteristic wastes that at the point of generation (and prior to
decharacterization) contain UHCs at concentrations that are greater
than UTS levels. The UHCs that are present at greater than UTS are
known as ``regulated constituents.'' Only these regulated constituents
must be considered in complying with the management standards for
leaks. UHCs present in a characteristic waste at levels less than or
equal to UTS are not subject to the proposed management standards for
leaks. If these decharacterized wastes are discharged to a surface
impoundment that meets the substantive minimum technology requirements
of 40 CFR 268.4, the Phase IV leak requirements would not apply.
The Agency's primary concern with regard to leaks from these
surface impoundments is the potential for regulated constituents to
migrate to the ground water in significant concentrations. The most
direct method available for assessing the presence of regulated
constituents in the ground water is groundwater monitoring
uirements
of 40 CFR 268.4, the Phase IV leak requirements would not apply.
The Agency's primary concern with regard to leaks from these
surface impoundments is the potential for regulated constituents to
migrate to the ground water in significant concentrations. The most
direct method available for assessing the presence of regulated
constituents in the ground water is groundwater monitoring. However,
the Agency believes it would be overly burdensome and unnecessary to
achieve the rule's intended purposes to require every surface
impoundment that manages decharacterized wastes to install ground water
monitoring wells. As a result, the Agency is proposing that regulated
constituents for which an MCL has been promulgated under section 1412
of the Safe Drinking Water Act (SDWA), codified under 40 CFR part 141,
must be present at concentrations in the surface impoundment
wastewaters that meet or exceed 10 times the MCL before ground water
monitoring is warranted. Thus, if the MCL for a hazardous constituent
is 1 mg/l and the hazardous constituent is present in surface
impoundment wastewaters at less than 10 mg/l, no groundwater monitoring
would be required. The Agency believes that the use of MCLs as a
trigger level for ground water monitoring is appropriate because MCLs
are a reasonable benchmark of risk posed to human health from a
drinking water source. By using a trigger of 10 times the MCL, the
Agency is taking into account the reasonable dilution and attenuation
that would occur as constituents migrate in the substrate. This trigger
level corresponds to the dilution and attenuation factor (DAF) of 10
(at the point of release to the aquifer) currently under consideration
for the Hazardous Waste Identification Rule (HWIR) proposal.
For UHCs that do not have MCLs, the Agency is proposing the
following approach
nt the reasonable dilution and attenuation
that would occur as constituents migrate in the substrate. This trigger
level corresponds to the dilution and attenuation factor (DAF) of 10
(at the point of release to the aquifer) currently under consideration
for the Hazardous Waste Identification Rule (HWIR) proposal.
For UHCs that do not have MCLs, the Agency is proposing the
following approach. In the absence of an MCL, the state or tribal risk-
based number (i.e., 10 times the state or tribal ground water
protection number) would be used for the regulated constituent (see 40
CFR 258.55(i)). In the absence of both an MCL and state or tribal risk-
based number, the UTS level--the directly RCRA-equivalent level--would
be used for the regulated constituent.
c. Surface impoundment management standards. The Agency is
proposing to use annual sampling of the wastewaters in the surface
impoundment to determine if regulated constituents are present at
concentrations that exceed the trigger level. Sampling and analysis
need only be conducted for those regulated constituents identified in
the characteristic waste at the point of generation. If a new
decharacterized wastewater is accepted by the surface impoundment, then
the owner or operator would be required to characterize the new
decharacterized wastewater at point of generation to identify
additional regulated constituents prior to the next annual sampling
date. Annual sampling must be continued for as long as the unit is
receiving decharacterized wastes. Sampling and analysis is discussed in
further detail in the technical support document entitled, ``Technical
Support Document for Leaks, Sludges, and Air Emissions--Phase IV.''
To determine if a trigger level has been exceeded, the owner or
operator would calculate an annualized average concentration for each
regulated constituent identified
g as the unit is
receiving decharacterized wastes. Sampling and analysis is discussed in
further detail in the technical support document entitled, ``Technical
Support Document for Leaks, Sludges, and Air Emissions--Phase IV.''
To determine if a trigger level has been exceeded, the owner or
operator would calculate an annualized average concentration for each
regulated constituent identified. This annualized average will account
for process fluctuations and process upsets and would appropriately
represent the wastewaters in the surface impoundment. At a minimum, the
owner or operator would be required to include at least four sampling
events (i.e. quarterly), and a minimum of four independent samples from
each sampling event. (See ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes'' in the RCRA docket for
more information on sampling.)
d. Ground water and corrective action management standards. EPA is
proposing that the ground water monitoring and corrective action
regulations for municipal solid waste landfills (MSWLFs) under the
Subtitle D program (Solid Waste Disposal Facility Criteria, 56 FR
50978, October 9, 1991) be adopted with minor modifications for the
monitoring and remediation of surface impoundments subject to today's
proposed rulemaking. EPA believes that the ground water monitoring and
corrective action standards in the MSWLF rule, as modified in today's
rule, are appropriate and protective for the surface impoundments
subject to today's rulemaking. Thus, under this option, an impoundment
choosing to operate with these measures would be considered a treatment
impoundment not engaging in permanent disposal of waste. Put another
way, the impoundment could be part of a treatment process that can
perform LDR-equivalent treatment
ified in today's
rule, are appropriate and protective for the surface impoundments
subject to today's rulemaking. Thus, under this option, an impoundment
choosing to operate with these measures would be considered a treatment
impoundment not engaging in permanent disposal of waste. Put another
way, the impoundment could be part of a treatment process that can
perform LDR-equivalent treatment. EPA is not, however, intending that
the approach outlined in today's proposed rule is necessarily
appropriate for other industrial solid waste management units.
Many states have ground water protection programs that include
ground water monitoring and corrective action that may apply to the
types of units that EPA is covering in today's proposal. To the extent
that state programs require ground water monitoring and corrective
action that include the UTS constituents of concern (or can be modified
to cover those constituents) and are substantially similar to today's
proposal (i.e., frequency of monitoring, requirements regarding ground
water monitoring wells), EPA would defer to those State and Tribal
Programs. The owner/operator would have to demonstrate that there
exists a State or Tribe numerical limit for each regulated constituent
and document that in their operating records. For those constituents
not covered by State or Tribal limits, today's rule would apply.
Further, facilities affected by today's rulemaking that have existing
ground water monitoring and corrective action programs that are not
required by State or federal government may be able to continue those
programs in lieu of the regulations proposed here.
t
and document that in their operating records. For those constituents
not covered by State or Tribal limits, today's rule would apply.
Further, facilities affected by today's rulemaking that have existing
ground water monitoring and corrective action programs that are not
required by State or federal government may be able to continue those
programs in lieu of the regulations proposed here.
(i) MSWLF rule. Under this option, EPA is proposing to adopt some,
but not all provisions of the MSWLF regulations, which are promulgated
under 40 CFR Parts 257 and 258. The sections of Part 258 that EPA would
adopt with minor modifications are in Subpart E: Ground Water
Monitoring and Corrective Action. These are: Ground Water Monitoring
Systems (Sec. 258.51); Ground Water Sampling and Analysis Requirements
(Sec. 258.53); Assessment Monitoring Program (Sec. 258.55); Assessment
of Corrective Measures (Sec. 258.56); Selection of Remedy
(Sec. 258.57); and Implementation of the Corrective Action Program
(Sec. 258.58). The section in Subpart E not being considered in today's
rule is

section Sec. 258.54, which requires a ground water monitoring detection
program. General descriptions of the sections and changes that EPA is
proposing for adoption in today's rule are provided below and under the
following section titled ``Specific Requirements''.
Self-Implementing Provisions
The MSWLF regulations are structured to be either self-implemented
by an owner or operator or implemented in ``approved states'' through
approval and interaction with state regulatory agencies. The MSWLF rule
was designed so that states with federally approved programs could
define ground water protection and corrective action programs for
individual MSWLFs that accounted for site-specific factors.
In referencing the MSWLF rule for ground water monitoring and
corrective action activities for surface impoundments under today's
rule, the Agency is proposing to adopt only those provisions that are
self-implementing
that states with federally approved programs could
define ground water protection and corrective action programs for
individual MSWLFs that accounted for site-specific factors.
In referencing the MSWLF rule for ground water monitoring and
corrective action activities for surface impoundments under today's
rule, the Agency is proposing to adopt only those provisions that are
self-implementing. EPA would modify the applicability of the MSWLF rule
such that any provisions that require state approval would not apply.
EPA is aware, however, that some of the site-specific provisions in the
MSWLF rule that would not be available under today's proposed rule
might be reasonable approaches for monitoring surface impoundments. For
example, Sec. 258.51(b) allows the director of an approved state to
approve a multi-unit ground-water monitoring system, rather than
require separate ground water monitoring systems for each unit.1
At some facilities subject to today's rule with closely spaced surface
impoundments, multi-unit monitoring may be protective and less
expensive to install and monitor. EPA seeks comment on whether the
multi-unit provision and any other site-specific provisions in the
MSWLF rule that would not be available should be allowed to be self-
implemented by facilities subject to ground-water monitoring and
corrective action under the Phase IV rulemaking.

\1\ The multi-unit system must be as protective of human health
and the environment as individual monitoring systems, based on
factors including the number, spacing, and orientation of the units,
the hydrogeologic setting, site history, engineering design of the
units, and type of waste accepted in the units. In addition to
approval of the multi-unit system, Sec. 258.51(d) requires that the
number, spacing, and depths of monitoring systems must be certified
by a ``qualified ground water scientist'' or by the director of an
approved state
number, spacing, and orientation of the units,
the hydrogeologic setting, site history, engineering design of the
units, and type of waste accepted in the units. In addition to
approval of the multi-unit system, Sec. 258.51(d) requires that the
number, spacing, and depths of monitoring systems must be certified
by a ``qualified ground water scientist'' or by the director of an
approved state. In today's rulemaking, certification by the
qualified ground waster scientist would be required, rather than
approval by the state. In the absence of state approval, this
certification would help ensure that a protective multi-unit
monitoring system was installed (independent certification of
certain ground water monitoring and corrective provisions is
discussed further below).
---------------------------------------------------------------------------

Certification of a Self-Implementing Program
In the MSWLF rule, the Agency stated that independent party review
and certification of certain self-implemented programs or
demonstrations required by the rule is necessary to ensure technical
adequacy of critical ground water monitoring and corrective action
milestones. Four provisions adopted from the MSWLF rule require
certification by an independent ``qualified ground water scientist'':
(1) Number, spacing and depths of monitoring systems (Sec. 258.51(d));
(2) determination that contamination was caused by another source or
that a statistically significant increase resulted from an error in
sampling analysis or evaluation (Sec. 258.55(h)(2)); (3) determination
that compliance with a remedy requirement is not technically
practicable (Sec. 258.58(c)(1)); and (4) completion of remedy
(Sec. 258.58(f)).
The Agency defined a ``qualified ground water scientist'' at
Sec. 258.50 and discussed the relevant background and experience needed
for these professionals to certify ground water monitoring and
corrective action requirements in the MSWLF rule. This definition is
also promulgated under Sec
nt is not technically
practicable (Sec. 258.58(c)(1)); and (4) completion of remedy
(Sec. 258.58(f)).
The Agency defined a ``qualified ground water scientist'' at
Sec. 258.50 and discussed the relevant background and experience needed
for these professionals to certify ground water monitoring and
corrective action requirements in the MSWLF rule. This definition is
also promulgated under Sec. 260.10 for certain ground water monitoring,
but not corrective action, certifications under the hazardous waste
program. Individuals who qualify to certify ground water regulatory
milestones under either the Subtitle D or C programs would also qualify
to certify the ground water requirements adopted under today's
rulemaking. Owners or operators of surface impoundments that undergo
corrective action under today's rulemaking should ensure that any
``qualified ground-water scientists'' working in the Subtitle C program
are qualified to certify corrective action requirements in addition to
ground water monitoring requirements.
(ii) Ground water monitoring. Installing a ground water monitoring
system. For today's proposed rule, EPA would require within one year of
triggering ground water monitoring (that is, when a regulated
constituent is detected at levels above regulatory concern in the
surface impoundment), the owner/operator must install a ground water
monitoring system and begin monitoring those wells for all regulated
constituents. The Agency believes that it is appropriate to monitor for
all the regulated constituents in the wells for the following reasons:
und water monitoring (that is, when a regulated
constituent is detected at levels above regulatory concern in the
surface impoundment), the owner/operator must install a ground water
monitoring system and begin monitoring those wells for all regulated
constituents. The Agency believes that it is appropriate to monitor for
all the regulated constituents in the wells for the following reasons:
(1) There will no longer be any type of monitoring conducted in the
surface impoundment (as long as the chemical composition of the waste
remains the same at the point of generation); (2) monitoring of all
regulated constituents is similar to the requirements established under
the MSWLF rule where analysis of a number of constituents is required
to determine the severity of a leak; and (3) it is essential to
accurately characterize the chemical composition of a ground water
release in order to aid in the corrective action plan, if necessary.
EPA believes that allowing one year will enable owner/operators
sufficient time to properly characterize their site and install ground
water monitoring wells that will meet the performance standards of 258
Subpart E. EPA is aware that many sites with less complex hydrogeology
and few units may not need the entire year to install their systems and
commence monitoring. Facilities with existing monitoring systems that
meet the applicable performance standards of Subpart E, Part 258 ground
water monitoring systems will be required to begin monitoring for the
UTS constituents regulated under today's rule at the next planned
monitoring period under existing monitoring programs, or within one
year.
Establishing a Ground Water Monitoring Program
The ground water monitoring program in today's proposed rule
focuses on a different set of constituents than those in the MSWLF
rule. Owners or operators subject to today's rule are required to
sample waste water in the affected surface impoundments to determine if
they have to install ground water monitoring systems
rograms, or within one
year.
Establishing a Ground Water Monitoring Program
The ground water monitoring program in today's proposed rule
focuses on a different set of constituents than those in the MSWLF
rule. Owners or operators subject to today's rule are required to
sample waste water in the affected surface impoundments to determine if
they have to install ground water monitoring systems. If ground water
monitoring is triggered, owners or operators are required to undertake
a monitoring program under Sec. 258.55 of the MSWLF rule to monitor for
only those UHCs that are present in the decharacterized waste prior to
its dilution and disposal in the surface impoundment treatment system.
The ground water monitoring system must include a sufficient number
of wells at the appropriate location and depth to determine background
level and the quality of the ground water at the relative point of
compliance. The relative point of compliance is required to be less
than or equal to 150 m from the waste management unit boundary located
on land owned by the facility. The MSWLF rule allowed for the director
of an approved state to determine an alternative boundary. Today's rule
is not allowing an alternative boundary, but rather requires the owner/
operator to select the relative

point of compliance as stated above, and document this in the
facility's records.
If statistically significant levels of these constituents are
detected above the constituent-specific ground water protection
standards as determined by Sec. 258.55(h) of the MSWLF rule, the owner
or operator is required to undertake corrective action to bring levels
of the regulated constituents in the ground water to below the ground
water protection standards. In contrast, under the MSWLF detection
monitoring regulations, which are not being considered under this
option, owners or operators are required to monitor for a list of
constituents from specified lists (see Appendix I to Part 258)
ator is required to undertake corrective action to bring levels
of the regulated constituents in the ground water to below the ground
water protection standards. In contrast, under the MSWLF detection
monitoring regulations, which are not being considered under this
option, owners or operators are required to monitor for a list of
constituents from specified lists (see Appendix I to Part 258).
Constituents on this list are generally thought to be present at
MSWLFs, have physical and chemical properties that cause them to be
early indicators of a release from a unit and are easy and inexpensive
to analyze. The MSWLF rule has provisions to modify the detection
monitoring list via the overseeing regulatory authority if parameters
are not reasonably expected to be found in ground water at the site. In
contrast, the UHCs that the owner or operator is monitoring for under
proposed Option 2 may not have fate and transport characteristics that
would provide earliest indication of a release. However, EPA does not
at this time have information to indicate whether the list of indicator
parameters monitored for under the MSWLF detection monitoring program
are present at the surface impoundments subject to today's proposed
rule. Monitoring for constituents that are not present obviously would
not provide protection from releases of site-specific UHCs. For these
reasons, EPA is not proposing to adopt the requirement for facilities
to monitor the ground water under the detection ground water monitoring
program specified in 258.54. EPA is, however, proposing to require
facilities to directly implement a program to monitor the regulated
constituents in the ground water.
Detecting Releases
Today's proposed rule also would have a different approach when
releases have been detected
ng to adopt the requirement for facilities
to monitor the ground water under the detection ground water monitoring
program specified in 258.54. EPA is, however, proposing to require
facilities to directly implement a program to monitor the regulated
constituents in the ground water.
Detecting Releases
Today's proposed rule also would have a different approach when
releases have been detected. When constituents are found under MSWLF
rule detection monitoring at levels that trigger the next phase of
monitoring (assessment), the owner/operators are required to analyze
the ground water for a broad list of constituents (Appendix II to Part
258 of the MSWLF rule) that may be present to better characterize the
nature of the release. Facilities that move to corrective action
generally are required to address all ground water contamination,
rather than a subset of facility-specific UHCs. Today's proposed rule
does not require facilities to scan for the Sec. 258 Appendix II
constituents because EPA's authority is limited to the UHCs in the
prohibited wastes that are required to receive RCRA-equivalent
treatment. Rather, owner/operators under today's rule would be required
to move directly to assessment of corrective measures upon detecting
that releases are statistically significant.
Corrective Action
If corrective action is required, this means that untreated UHCs
are being released to the environment at an excessive level. The
impoundment thus is not performing equivalent treatment. An operator
can, however, capture and treat the constituents via corrective action,
which would have the effect of re-validating the surface impoundments
treatment function.
EPA is aware that owners or operators undertaking corrective action
under today's proposed approach might de facto remediate constituents
other than the regulated constituents in the ground water
ng equivalent treatment. An operator
can, however, capture and treat the constituents via corrective action,
which would have the effect of re-validating the surface impoundments
treatment function.
EPA is aware that owners or operators undertaking corrective action
under today's proposed approach might de facto remediate constituents
other than the regulated constituents in the ground water. For example,
a ground water extraction system with an air stripping treatment unit
designed to remove site-specific regulated constituents could also
strip and collect other VOCs present in the ground water. Facilities
may also be required to remediate all ground water contamination under
other state or federal actions or may remediate additional
contamination voluntarily because of concern over liability associated
with leaving ground water partially contaminated.
Alternatives to Ground Water Monitoring
EPA is aware that the MSWLF rule does not adequately allow for
alternatives to ground water monitoring when ground water monitoring is
not practicable or would not detect early releases. For example, some
landfills are located in arid regions where depth to ground water may
exceed many hundreds of feet. In such a situation, ground water
monitoring wells located at the margin of a unit might not intercept a
release, as it might move laterally as well as vertically prior to
intercepting the ground water at great depth. In addition, such wells
would not detect a release until considerable contamination has entered
the subsurface. EPA is currently developing a proposed rule to allow
for alternative monitoring systems for remote, small arid landfills
where monitoring of the unsaturated zone would afford early detection
of releases before the release migrates to the ground water
the ground water at great depth. In addition, such wells
would not detect a release until considerable contamination has entered
the subsurface. EPA is currently developing a proposed rule to allow
for alternative monitoring systems for remote, small arid landfills
where monitoring of the unsaturated zone would afford early detection
of releases before the release migrates to the ground water. EPA has
not included a related provision in today's proposed rule, because
existing information indicates that the affected facilities are located
adjacent to bodies of water, where ground water under the facility
would be close to the surface. As with other ground water monitoring
programs, EPA encourages owners or operators to install innovative
monitoring systems, such as vadose zone monitoring, in addition to
ground water monitoring, if those systems would aid in the early
detection of releases.
(iii) Integration of option 2 with existing programs.--EPA is aware
that many of the facilities that would be subject to the requirements
of Option 2 will be undergoing ground water monitoring and corrective
action under existing state or federal authorities. Approximately one
half of the universe of affected facilities will be RCRA hazardous
waste treatment, storage, or disposal facilities (TSDFs) that are
permitted or operating under interim status. As noted above, at these
facilities, the surface impoundments subject to the Phase IV rule will
be ``solid waste management units'' (SWMUs) that are eligible for
corrective action under Sec. 3004(u) and (v), Sec. 3008(h), Sec. 7003,
and other authorities, such as CERCLA Sec. 106. These surface
impoundments, as SWMUs, may or may not be undertaking ground water
monitoring or corrective action when the Phase IV rule becomes
effective. Similarly, certain states already require ground water
monitoring or corrective action of surface impoundments, regardless of
their status under RCRA Subtitles C or D
Sec. 3008(h), Sec. 7003,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_95-20623. Check the current official text before relying on it. Not legal advice.