Federal Register, Volume 59 Issue 180 (Monday, September 19, 1994)

[Federal Register Volume 59, Number 180 (Monday, September 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22493]

[[Page Unknown]]

[Federal Register: September 19, 1994]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 260, 261, 264, 265, 266, 268 and 271

[FRL-5028-9]
RIN 2050-AD89

Land Disposal Restrictions Phase II--Universal Treatment
Standards, and Treatment Standards for Organic Toxicity Characteristic
Wastes and Newly Listed Wastes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: As part of the Agency's Land Disposal Restrictions (LDR)
program, EPA is today promulgating treatment standards for the newly
identified organic toxicity characteristic (TC) wastes (except those
managed in Clean Water Act (CWA) systems, CWA- equivalent systems, or
Class I Safe Drinking Water Act (SDWA) injection wells), and for all
newly listed coke by-product and chlorotoluene production wastes. The
required treatment standards for these wastes must be met before they
are land disposed. EPA is also requiring ignitable characteristic
wastes with a high total organic carbon (TOC) content and toxic
characteristic pesticide wastes, that are being disposed in Class I
nonhazardous waste injection wells, to either be injected into a well
that is subject to a no-migration determination, or be treated by the
designated LDR treatment method. Promulgation of these treatment
standards for the newly identified and listed wastes and promulgation
of the dilution prohibitions for high TOC ignitables and pesticides
fulfills requirements of a proposed consent decree between EPA and the
Environmental Defense Fund, and a settlement agreement between EPA, the
Hazardous Waste Treatment Council, and a number of environmental groups
including the Natural Resources Defense Council.
EPA is also making a major improvement in the Land Disposal
Restrictions program in order to simplify and provide consistency in
the requirements. EPA is establishing a single set of requirements,
referred to as universal treatment standards, that apply to most
hazardous wastes. EPA is also simplifying the Land Disposal
Restrictions program by reducing paperwork for the regulated community,
and improving guidance to make compliance easier. EPA is also
publishing clarifying guidance regarding treatability variances, which
largely restates previous Agency statements. Finally, EPA is modifying
the hazardous waste recycling regulations which will allow streamlined
regulatory decisions to be made regarding the regulation of certain
types of recycling activities.

DATES: Effective date: The final rule is effective on December 19,
1994. Section 266.100 and Appendix VIII are effective September 19,
1994.
Applicability dates: For high TOC D001 (40 CFR 148.17) and
halogenated pesticides wastes (40 CFR 148.17) disposed in Class I
nonhazardous injection deep wells, the compliance date is September 19,
1995. For radioactive waste mixed with the newly listed or identified
wastes, or soil and debris contaminated with such mixed wastes (40 CFR
268.38), the compliance date is September 19, 1996. Although the
effective date of today's rule is December 19, 1994, facilities will be
in compliance if they meet the universal treatment standards (UTS)
before the 90-day period ends.

ADDRESSES: The official record for this rulemaking is identified as
Docket Number F-94-CS2F-FFFFF, and is located in the EPA RCRA Docket,
U.S. Environmental Protection Agency, Room 2616, 401 M Street, SW.,
Washington, DC 20460. The RCRA Docket is open from 9 am to 4 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 $.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 locally.
For technical information about mercury and radioactive mixed waste,
contact Shaun McGarvey on (703) 308-8603; for technical information
about lab packs and metal Universal Treatment Standards, contact Anita
Cummings on (703) 308-8303; for technical information about organic
Universal Treatment Standards, contact Lisa Jones on (703) 308-8451;
for technical information about Toxicity Characteristic wastes, contact
Mary Cunningham on (703) 308-8453; for technical information about
petroleum refining wastes, contact Jose Labiosa on (703) 308-8464; for
other information, contact Richard Kinch on (703) 308-8414; of the
Waste Treatment Branch, Office of Solid Waste (5302W), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, phone (703) 308-8434. For technical information on capacity
analyses, contact Bengie Carroll of the Capacity Programs Branch,
Office of Solid Waste (5302W), phone (703) 308-8440. For technical
information on Hazardous Waste Recycling, contact Mitch Kidwell of the
Regulation Development Branch, Office of Solid Waste (5304), phone
(202) 260-8551.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
A. Summary of the Statutory Requirements of the 1984 Hazardous
and Solid Waste Amendments, and Requirements of the 1993 Settlement
Agreement with the Environmental Defense Fund
B. Pollution Prevention Benefits
C. Relationship of Best Demonstrated Available Technology (BDAT)
Treatment Standards To Initiatives To Strengthen Federal Controls
Governing Hazardous Waste Combustion Devices
D. Relationship of LDR Treatment Standards to Risk-based
Treatment Standards
E. Treatment Standards for Hazardous Soil
II. Summary of Rule
A. Treatment Standards for Newly Identified Organic Toxicity
Characteristic (TC) Wastes
B. Prohibition of Dilution of High TOC Ignitable and of TC
Pesticide Wastes Injected Into Class I Deep Wells
C. Treatment Standards for Newly Listed Wastes
D. Universal Treatment Standards
E. Modifications to Hazardous Waste Recycling Regulations
III. Improvements to the Existing Land Disposal Restrictions Program
A. Background
B. Universal Treatment Standards
1. Identification of Wastes to Which Universal Treatment
Standards Apply
2. Differences in Universal Treatment Standards and Previous
Treatment Standards
3. Universal Treatment Standards for Organic Hazardous
Constituents
a. Analyte Combinations
b. Organics--Nonwastewaters
c. Organics--Wastewaters
4. Universal Treatment Standards for Metal Hazardous
Constituents
a. Nonwastewaters
b. Wastewaters
5. Universal Treatment Standards for Cyanide Wastes
a. Cyanide Nonwastewaters
b. Cyanide Wastewaters
C. Consolidation of Equivalent Technology-Specific Combustion
Standards
D. Incorporation of Newly Listed Wastes Into Lab Packs and
Changes to Appendices
E. Changes in the LDR Program In Response to the LDR Roundtable
1. Consolidated Treatment Table
2. Simplified LDR Notification Requirements
IV. Treatment Standards for Toxicity Characteristic Waste
A. Introduction--Content and Scope
1. Waste Management Systems Affected by Today's Rule
2. Categories of TC Wastes Affected by Today's Rule
3. Soil Contaminated by Underground Storage Tanks
4. Metal TC Wastes Are Not Affected by Today's Rule
B. Background
1. Legal and Policy Basis for Today's TC Standards
2. Ongoing Management Practices for TC Wastes
C. Treatment Standards for New TC Organic Constituents (D018-
D043)
1. Nonwastewaters
2. Wastewaters
3. Radioactive Mixed Waste
D. Treatment Standards for Pesticide Wastes Exhibiting the
Toxicity Characteristic
1. Newly Identified Pesticide Nonwastewaters
2. Pesticide Wastewaters
E. Exemptions for De Minimis Losses of Commercial Chemical
Product or Chemical Intermediates That Exhibit the Toxicity
Characteristic (TC), and for TC Laboratory Wastes Discharged to CWA
Wastewater Treatment Systems
V. Treatment Standards for Newly Listed Wastes
A. Treatment Standards for Coke By-product Production Wastes
B. Treatment Standards for Chlorotoluenes
VI. Debris Contaminated With Newly Listed or Identified Wastes
A. Debris Treated to Meet the Phase II Treatment Standards
B. Debris Treated to Meet the Alternative Debris Treatment
Standards
VII. Response to Comments Regarding Exclusion of Hazardous Debris
That Has Been Treated by Immobilization Technologies
A. Background
B. Roundtable Discussion
C. EPA Investigations
D. Specific Questions for Which Comments Were Solicited
E. Comments Received and Conclusions
VIII. Deep Well Injection Issues
A. Prohibition of Dilution of High TOC Ignitable and of TC
Pesticide Wastes Injected Into Class I Deep Wells
B. Request for Comment on Petition from Chemical Manufacturer's
Association Regarding Deep Well Injection of Ignitable and Corrosive
Characteristic Wastes
IX. Modifications to Hazardous Waste Recycling Regulations
A. Introduction
B. Modification of the Existing ``Closed-loop'' Recycling
Exclusion and Related Case-specific Variance
1. ``Closed-loop'' Recycling Exclusion and Related Variance
2. Storage Prior to Recycling
X. Compliance Monitoring and Notification
A. Compliance Monitoring
B. LDR Notification
1. Constituents to be Included on the LDR Notification
2. Management in Subtitle C-Regulated Facilities
3. Potential Management of Decharacterized Wastes at a Subtitle
D Waste Management Facility
XI. Implementation of the Final Rule
XII. Guidance to Applicants for Treatability Variances for As-
Generated Wastes
XIII. Clarifications and Corrections to Previous Rules
A. Corrections to the Interim Final Rule Establishing Land
Disposal Restrictions for Certain Ignitable and Corrosive Wastes
B. Corrections to the Phase I Rule Establishing Land Disposal
Restrictions for Newly Listed Wastes and Hazardous Debris
C. Amendment of Boiler and Industrial Furnace Rules for Certain
Mercury-containing Wastes
1. The Proposal
2. Comments and the Final Rule
XIV. Capacity Determinations
A. Capacity Analysis Results Summary
B. Analysis of Available Capacity
C. Surface Disposed Newly Identified and Listed Wastes
1. Required Capacity for Newly Identified TC Organics (D018-
D043)
2. Used Oil
3. Required Capacity for Other Newly Listed Organic Wastes
a. Surface Disposed Coke By-product Wastes
b. Surface Disposed Chlorinated Toluene Wastes
4. Newly Identified TC Wastes That Were Not Previously Hazardous
by the Old EP Leaching Procedure
D. Required and Available Capacity for Newly Listed and
Identified Wastes Mixed with Radioactive Components
1. Waste Generation
a. Non-soil and Non-debris Mixed Radioactive Wastes
b. Mixed Radioactive Soil
c. Mixed Radioactive Debris
2. Available Capacity and Capacity Implications
a. Non-soil and Non-debris Mixed Radioactive Wastes
b. Mixed Radioactive Soil
c. Mixed Radioactive Debris
E. Required and Available Capacity for High TOC Ignitable, TC
Pesticide, and Newly Listed Wastes Injected Into Class I Deep Wells
F. Required and Available Capacity for Hazardous Soil and Debris
Contaminated with Newly Listed and Identified Wastes
1. Waste Generation
a. Hazardous Soil
b. Hazardous Debris
2. Current Management Practices
3. Available Capacity and Capacity Implications
a. Hazardous Soil
b. Hazardous Debris
XV. State Authority
A. Applicability of Rules in Authorized States
B. Effect on State Authorization
XVI. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
1. Methodology Section
a. Methodology for Estimating the Affected Universe
b. Cost Methodology
c. Waste Minimization Methodology
d. Economic Impact Methodology
e. Benefits Methodology
2. Results Section
a. Volume Results
b. Cost Results
c. Waste Minimization
d. Economic Impact Results
e. Benefit Estimate Results
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act

I. Background

A. Summary of the Statutory Requirements of the 1984 Hazardous and
Solid Waste Amendments, and Requirements of the 1993 Settlement
Agreement With the Environmental Defense Fund

The Hazardous and Solid Waste Amendments (HSWA) to the Resource
Conservation and Recovery Act (RCRA), enacted on November 8, 1984,
largely prohibit the land disposal of untreated hazardous wastes. Once
a hazardous waste is prohibited from land disposal, the statute
provides only two options for legal land disposal: meet the treatment
standard for the waste prior to land disposal, or dispose of the waste
in a land disposal unit that has been found to satisfy the statutory
no-migration test. A no-migration unit is one from which there will be
no migration of hazardous constituents for as long as the waste remains
hazardous. RCRA sections 3004 (d), (e), (g)(5).
The treatment standards may be expressed as either constituent
concentration levels or as specific methods of treatment. These
standards must substantially diminish the toxicity of the waste or
substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term threats to
human health and the environment are minimized. RCRA section
3004(m)(1). For purposes of the restrictions, land disposal includes
any placement of hazardous waste in a landfill, surface impoundment,
waste pile, injection well, land treatment facility, salt dome
formation, salt bed formation, or underground mine or cave. RCRA
section 3004(k).
The land disposal restrictions are effective upon promulgation.
RCRA section 3004(h)(1). However, the Administrator may grant a
national capacity variance from the immediate effective date and
establish a later effective date (not to exceed two years) based on the
earliest date on which adequate alternative treatment, recovery, or
disposal capacity which protects human health and the environment will
be available. RCRA section 3004(h)(2). The Administrator may also grant
a case-by-case extension of the effective date for up to one year,
renewable once for up to one additional year, when an applicant
successfully makes certain demonstrations. RCRA section 3004(h)(3). See
55 FR 22526 (June 1, 1990) for a more detailed discussion on national
capacity variances and case-by-case extensions.
In addition, Congress prohibited the storage of any waste which is
prohibited from land disposal unless such storage is to allow for the
accumulation of such quantities of hazardous waste as are necessary to
facilitate proper recovery, treatment or disposal. RCRA section
3004(j). For storage up to one year, EPA has taken the position that
the agency bears the burden of proving that such storage was not solely
for the purpose of accumulation of quantities necessary to facilitate
proper recovery, treatment or disposal. 40 CFR 268.50(b). For storage
beyond one year, however, the burden of proof shifts to the generator
or owner/operator of a treatment, storage or disposal facility to
demonstrate that such storage was solely for the purpose of
accumulation of quantities necessary to facilitate proper recovery,
treatment or disposal. 40 CFR 268.50(c). The provision applies, of
course, only to storage which is not also defined in section 3004(k) as
land disposal.
EPA was required to promulgate land disposal prohibitions and
treatment standards by May 8, 1990 for all wastes that were either
listed or identified as hazardous at the time of the 1984 amendments,
RCRA sections 3004 (d), (e), and (g), a task EPA completed within the
statutory timeframes. EPA was also required to promulgate prohibitions
and treatment standards for wastes identified or listed as hazardous
after the date of the 1984 amendments within six months after the
listing or identification takes effect. RCRA section 3004(g)(4).
The Agency did not meet this latter statutory deadline for all of
the wastes identified or listed after the 1984 amendments. As a result,
a suit was filed by the Environmental Defense Fund (EDF). EPA and EDF
signed a consent decree (lodged with but not entered by the District
Court) that establishes a schedule for adopting prohibitions and
treatment standards for newly identified and listed wastes. (EDF v.
Reilly, Civ. No. 89-0598, D.D.C.) This proposed consent decree was
recently modified as a result of the court decision on the Third Third
final rule (Chemical Waste Management v. EPA, 976 F.2d 2 (D.C. Cir.
1992), cert. denied 113 S. Ct. 1961 (1993) (CWM v. EPA)). Today's rule
fulfills several provisions of the proposed consent decree. The rule
establishes treatment standards for newly listed coke by-product and
chlorotoluene production wastes, and for the D018-D043 TC wastes (TC
wastes identified as hazardous because of the presence of organic
hazardous constituents) when these wastes are managed in systems other
than those wastewater treatment systems whose discharge is regulated
under the Clean Water Act (CWA), by zero-dischargers that do not engage
in CWA-equivalent treatment prior to land disposal, and by injection
into other than underground injection control (UIC) Class I deep
injection wells regulated under the Safe Drinking Water Act (SDWA).
Soils contaminated with these newly identified and listed wastes are
also covered by this rule.
Finally, this rule prohibits injection into deep wells of high
Total Organic Carbon ignitable wastes (D001) and Toxic Characteristic
organic pesticides (D012-D017) unless they are treated to meet
applicable treatment standards, or the deep well has received a no-
migration variance. This last prohibition is in partial fulfillment of
the settlement agreement following the D.C. Circuit's decision in CWM
v. EPA.
EPA is also modifying a number of the existing land disposal
restrictions rules. Although not required by the settlements discussed
above, these changes reflect EPA's updated technical knowledge,
simplify implementation of the program, and provide greater
programmatic consistency. In today's notice, EPA is establishing a set
of treatment standards (called universal treatment standards) that
apply to most hazardous wastes, changing requirements for land disposal
of lab packs containing prohibited hazardous wastes, and simplifying
paperwork requirements.

B. Pollution Prevention Benefits

EPA's progress over the years in improving environmental quality
through its media-specific pollution control programs has been
substantial. Over the past two decades, standards for pollution control
concentrated to a large extent on ``end-of-pipe'' treatment or land
disposal of hazardous and nonhazardous wastes. Although none of the
treatment standards in today's rule require waste minimization or
recovery, these are viable options for facilities to choose to use to
comply with universal treatment standards. For example, facilities may
choose to reduce the generation of wastes and/or treat certain metal-
containing wastes by using high temperature metal recovery (HTMR),
which has been shown to be effective for treating many metal bearing
wastes.

C. Relationship of Best Demonstrated Available Technology (BDAT)
Treatment Standards to Initiatives To Strengthen Federal Controls
Governing Hazardous Waste Combustion Devices

On May 18, 1993, EPA Administrator Browner announced additional
steps that would be pursued to protect public health and the
environment by further encouraging reduction in the amount of hazardous
wastes generated in this country and strengthening federal controls
governing hazardous waste incinerators and other combustion devices.
With the announcement, the Draft Hazardous Waste Minimization and
Combustion Strategy (also referred to as the Draft Strategy) was
released, upon which the Agency has sought broad national dialogue.
Among other things, the Draft Strategy called for a national review of
the relative roles of hazardous waste combustion and source reduction
in hazardous waste management.
Since release of the Draft Strategy, the Agency has pursued a wide
variety of activities. For example, EPA released in May 1994 a draft
technical report entitled ``Combustion Emissions Technical Resource
Document''. This report provides EPA's preliminary technical analysis
of best operating practices and achievable emission levels with regards
to emissions of dioxin and particulate matter from existing hazardous
waste incinerators, and boilers and industrial furnaces (BIFs) burning
hazardous wastes, based on data already submitted to EPA. The report
was also released to provide for early pre-proposal dialogue on the
types of additional controls and emission limits that should be adopted
for hazardous waste combustion units. In another action, the Agency
announced its proposed permitting and public participation rule. This
rule would amend EPA's RCRA regulations to provide earlier and more
effective opportunities for public participation in the RCRA permitting
process. The rule also proposes tighter standards for the interim
period immediately after a facility trial burn is completed but before
a final permit determination is made.
Today's rule provides the Agency with another opportunity to
address the objectives of the Draft Strategy. In particular, this rule
specifies a series of new treatment standards that must be met before
hazardous wastes are land disposed. As in previous LDR rules, the
standards for hazardous organic constituents are, in many cases, based
on the performance of combustion technology. In the proposed rule, the
Agency solicited comments and data on whether other treatment
technologies, especially recycling technologies, can achieve these or
comparable treatment levels. EPA also solicited comment on whether the
levels should be modified so as to allow and encourage the use of non-
combustion treatment technologies.
It remains EPA's primary objective in hazardous waste management to
reduce the amount of hazardous waste that is generated so as to
minimize the need to treat and dispose of hazardous waste. A wide range
of waste minimization activities are underway, including development of
the National Plan for Hazardous Waste Minimization released in draft on
May 23, 1994 as part of the Draft Strategy. However, for those
hazardous wastes that are still produced and are disposed, the waste
must be treated (see RCRA section 3004(m)).
While the Agency has concerns with combustion devices that are not
properly designed and operated, particularly if they do not fully
control toxic metals and organics (including products of incomplete
combustion (PICs)), the Agency also believes that combustion
technologies, if properly designed and operated, do minimize threats to
human health and the environment for many waste streams. Several
commenters agree with the Agency on this point. In fact, these
commenters (including environmental groups) argue that relaxing the
treatment standards to reduce the amount of treatment otherwise
achieved via combustion could actually increase threats to human health
and the environment, and thus violate EPA's statutory requirements
under 3004(m). In addition, it has also been argued that loosening the
treatment standards will not necessarily result in less combustion
because the regulated community may still choose to rely on combustion
to meet the standards. Commenters also suggested that loosening the
treatment standards will actually act as a disincentive to seek
pollution prevention alternatives. This latter point seems to have
merit in that based on some preliminary analysis of the land disposal
restrictions program by the Agency, the existing treatment standards
have raised the cost of hazardous waste management substantially and
have been a factor in reducing the amount of hazardous waste generated.
To address those combustion facilities that are not operated
properly, the Agency will continue its aggressive inspection and
enforcement program to bring the facilities back into compliance with
all requirements and to impose penalties. In addition, the Agency is
actively engaged with all interested parties in discussions on
upgrading combustion regulations. EPA is considering, as part of this
upcoming rulemaking, revising the controls on dioxin and furan
emissions, particulate matter, and toxic metals. In the course of the
rulemaking, the public will have the opportunity to comment on the
Agency's proposals. As noted earlier, EPA is already seeking public
comment on its preparatory work for this rulemaking to upgrade
combustion regulations through release of the Combustion Emissions
Technical Resource Document, this past May.
Several commenters indicated that the LDR treatment standards
should not be based on combustion performance because this will
encourage combustion over other treatment alternatives. Although the
Agency is willing to look at alternative technologies, such
technologies must still achieve levels of performance that satisfy the
dictates of RCRA section 3004(m). Also, we must have some assurance
that any alternative treatment method is done safely. No information or
data was provided by these commenters on the issues of the
effectiveness or safety of the alternative treatment technologies or
limits, or that such alternatives would be equally or more protective
of human health and the environment. (As EPA has stated many times, the
Agency specifies concentration levels as the treatment standards rather
than mandated methods of treatment because this provides maximum
flexibility in the selection of treatment technology that may be used.)
Several commenters also asserted that only combustion technologies
can achieve the levels specified as treatment standards for organics.
However, no treatability data were provided to support their general
assertions. On the other hand, limited data were provided on specific
alternative treatment technologies that can also achieve the treatment
standards in today's rule. Therefore, the Agency is not convinced that
the treatment standards for organics in today's rule require
modification to be achievable by technologies other than combustion,
and such other technologies may be used to meet these standards.

D. Relationship of LDR Treatment Standards to Risk-based Treatment
Standards

The principal objection to the proposed UTS was that the values do
not reflect risk, that is, the standards are based on performance of a
treatment technology rather than on assessment of risks to human health
and the environment posed by the waste. The debate over technology-
versus risk-based treatment standards has continued throughout the
development of the land disposal restrictions. EPA's ultimate policy
preference is to establish risk-based levels that truly minimize
threats to both human health and the environment. 55 FR at 6641 (Feb.
26, 1990). Such standards would cap the extent of hazardous waste
treatment. RCRA section 3004(m)(1). The difficulties involved in this
task, however, are formidable and very controversial. The technical
issues include assessing exposure pathways other than migration to
groundwater, taking environmental risk into account, and developing
adequate toxicological information for the hazardous constituents
controlled by the hazardous waste program.
The Agency is currently working on a rulemaking that will define
hazardous constituent concentration levels below which a waste is no
longer designated under RCRA subtitle C as ``hazardous.'' Discussions
concerning these levels are taking place in the Federal Advisory
Committee on the Hazardous Waste Identification Rule (HWIR). The HWIR
Committee is discussing issues and providing recommendations for two
rulemakings: as-generated waste and contaminated media.
The HWIR Committee is made up of industry, environmentalists,
treaters and disposers, and state implementing officials. The HWIR
Committee has begun discussions by focusing on concentrations below
which waste mixtures and treatment residuals would no longer be subject
to the hazardous waste regulations (``exit criteria''), while also
discussing whether there is a regulatory approach to bring under
regulation clearly hazardous waste not now controlled by the hazardous
waste regulations (an ``entry'' rule). In addition, EPA is working with
the Committee to consider whether risk-based exit criteria or other
risk-based values based on the same exposure modeling could also serve
as minimize threat levels to potentially cap treatment standards for
the land disposal restrictions.
In Hazardous Waste Treatment Council v. EPA, 886 F. 2d 355 (D.C.
Cir. 1989), cert. denied 111 S. Ct 139 (1990), the court held that the
statute can be read to allow either technology-based or risk-based
standards, and further held that technology-based standards are
permissible so long as they are not established ``beyond the point at
which there is no `threat' to human health or the environment.'' Id. at
362. The court further held that the particular technology-based
standards at issue were not established below this ``minimize threat''
level, notwithstanding that (in some cases) the standards were below
Maximum Contaminant Levels used for drinking water under the Safe
Drinking Water Act, and were below the RCRA characteristic level. Id.
at 361-62. In the court's view, the RCRA section 3004(m) minimize
threat standard was more stringent than that used to establish either
drinking water standards or characteristic levels. EPA finds, for
purposes of this rule, that none of the treatment standards are
established below levels at which threats to human health and the
environment are minimized. This finding stems from the Agency's
inability at the present time, as explained above, to establish
concentration levels for hazardous constituents which represent levels
at which threats to human health and the environment are minimized.
Unless the Agency determines risk-based concentration levels that
achieve the ``minimized threat'' requirement for a particular
wastestream, the Agency believes that BDAT treatment (as reflected by
the UTS levels) fulfills the statutory charge.

E. Treatment Standards for Hazardous Soil

As stated in the September 14, 1993 proposal (58 FR 48124), EPA
recognizes that the treatment standards promulgated for as-generated
hazardous waste may not always be achievable or appropriate for soil
contaminated with that waste. EPA therefore proposed less stringent
alternative treatment standards that would specifically apply to
hazardous soils. In addition, EPA proposed to codify the ``contained-
in'' policy for contaminated media (see 58 FR 48127). Subsequent to the
proposal, the Agency received a number of comments from the varied
constituencies (industry, environmental, waste treatment and state)
involved in the Hazardous Waste Identification Rule (HWIR) effort for
addressing contaminated media, urging the Agency to await the results
of that effort before developing soil-specific treatment standards.
Thus, EPA has decided not to promulgate alternative treatment standards
for hazardous soil and the codification of the contained-in policy as
part of this rulemaking, but rather will address it as part of the HWIR
effort for contaminated media. EPA announced this decision on November
12, 1993 (see 58 FR 59976) and again on March 8, 1994 (see 59 FR
10778).
The Hazardous Waste Identification Rule for Contaminated Media,
which is being developed by EPA in concert with the States and with
affected stakeholders, is intended to create a comprehensive regulatory
framework within RCRA Subtitle C that will apply to the management of
contaminated media that are managed as part of remediation activities.
Through the public dialogue process, a conceptual framework has been
developed for HWIR for media. As currently envisioned, the HWIR media
rule will establish mandatory treatment requirements for soils (and
possibly other media) that are highly contaminated, while less
contaminated soils would be subject to management requirements of the
overseeing regulatory agency. The HWIR media rule is expected to
encourage national consistency in the management of higher risk media,
while providing management flexibility for a significant volume of
lower risk contaminated media, thereby facilitating more timely and
less costly cleanups.
Although the HWIR rule for contaminated media is being developed on
a different schedule than the LDR rules, EPA believes (and is supported
by many commenters) that it is appropriate to address the issue of
setting treatment standards for soils within the broader framework of
the HWIR rule, since such treatment requirements are expected to be an
integral part of that rule. In addition, EPA believes that the
contained-in policy is one of the key issues that must be addressed in
the development of a comprehensive regulatory framework for management
of contaminated media.
In the meantime, hazardous soils are generally subject to the LDR
treatment standards that apply to the hazardous wastes with which the
soils are contaminated, including those addressed in today's rule.
The Agency has stated a presumption, however, that the treatment
standards for as-generated wastes are generally inappropriate or
unachievable for soils contaminated with hazardous wastes, within the
meaning of 40 CFR 268.44(a) (see 55 FR 8759-60, March 8, 1990). It has
been the Agency's experience that contaminated soils are significantly
different in their treatability characteristics from the wastes that
have been evaluated in establishing the BDAT standards, and thus, will
generally qualify for a treatability variance under 40 CFR 268.44. For
guidance on treatability variances for soils, see the EPA Fact Sheet
entitled ``Regional Guide: Issuing Site-Specific Treatability Variances
for Contaminated Soils and Debris from Land Disposal Restrictions
(OSWER Publication 9839.3-08FS). For RCRA actions, the Regional
Administrator was delegated the authority to deny or grant these
variances in a non-rulemaking procedure under 40 CFR 268.44(h) on April
22, 1991. These variances may be granted by State agencies in States
authorized for Sec. 268.44. Variance authority for CERCLA actions is
discussed in LDR Guides 6A (revised Sept. 1990) and 6B (OSWER 9347.3-
06FS and 9347.3-06BFS).
As previously noted, EPA chose not to develop separate treatment
standards for soils in this rulemaking, and currently plans to address
treatment standards for contaminated soils in the context of the
Hazardous Waste Identification Rule (HWIR) for contaminated media,
which is currently under development. If, however, the HWIR
Contaminated Media rule does not sufficiently address treatment
standards for contaminated soils in a timely manner, the Agency may
promulgate such standards in a separate rulemaking. Information on the
HWIR Contaminated Media rule may be obtained by contacting Carolyn
Loomis, at (703) 308-8626.
Until LDR standards specific to soils are promulgated, EPA believes
that treatability variances will generally be appropriate when
hazardous soils are managed as part of site remediation activities. The
Agency recognizes, however, that in some cases obtaining a treatability
variance as provided under Sec. 268.44 could cause delays in
implementing remedial actions. The Agency is currently considering
whether changes to the existing variance or authorization procedures
should be made as a means of expediting cleanup actions that are
conducted under RCRA or other Federal or State authorities, or other
cleanups initiated by responsible parties. Such changes, if necessary,
will be addressed in a future rulemaking.

II. Summary of Rule

A. Treatment Standards for Newly Identified Organic Toxicity
Characteristic (TC) Wastes

On March 29, 1990, EPA promulgated a rule that identified organic
constituents (in addition to existing EP metals and pesticide
constituents) and levels at which a waste is considered hazardous based
on the characteristic of toxicity (55 FR 11798). Because these wastes
were identified as hazardous after the enactment date of HSWA in 1984,
they are ``newly identified wastes'' for purposes of the LDR program.
Included are wastes identified with the codes D018 through D043 based
on the toxicity characteristic leaching procedure (TCLP), i.e., TC
wastes. EPA is establishing treatment standards for each of these
constituents if they are managed in systems other than those regulated
under the Clean Water Act (CWA), those engaging in CWA-equivalent
treatment prior to land disposal, and those injected into Class I deep
injection wells regulated under the Safe Drinking Water Act (SDWA).
(For an explanation of these qualifications, see the May 24, 1993
Interim Final Rule (58 FR 29860).) In addition, because wastes
exhibiting the toxicity characteristic (TC) can contain treatable
levels of other hazardous constituents, EPA is establishing treatment
standards for the underlying hazardous constituents, as defined in
268.2(i). These rules are consistent with the court's opinion in
Chemical Waste Management v. EPA, 976 F.2d 2, 17-8 (D.C. Cir. 1992),
cert. denied 113 U.S. 1961 (1993), which held that all hazardous
constituents in characteristic wastes must meet the levels of
performance satisfying the requirements in RCRA 3004(m) before land
disposal, and that treatment standards cannot be achieved by dilution
(provided, of course, that treatment standards are not established
below the level at which threats to human health and the environment
are minimized).

B. Prohibition of Dilution of High TOC Ignitable and of TC Pesticide
Wastes Injected Into Class I Deep Wells

In its ruling on the Third Third LDR Rule, the D.C. Circuit Court
of Appeals remanded the portion of the Agency's rule allowing treatment
standards for characteristic wastes to be achieved by dilution. The
Agency is continuing to develop a regulatory response to implement the
court's ruling. As part of that response, EPA is today requiring that
hazardous constituents in two types of characteristic wastes, high
total organic carbon (TOC) ignitable liquids (D001), and halogenated
pesticide wastes that exhibit the toxicity characteristic (D012-D017),
be fully treated before those wastes are disposed unless the wastes are
disposed in an injection well that has a no-migration variance.
The Agency believes that treatment of these particular wastestreams
is warranted. (See Section VIII--Deep Well Injection Issues for further
discussion.) The D001 wastes are ignitable with potentially high
concentrations of hazardous constituents, and the pesticide wastes
contain particularly toxic constituents. Further, the organics in D001
high TOC liquids can be recovered, destroyed, or used as a fuel and
occur in only small volumes so that segregation and treatment should
not prove difficult.

C. Treatment Standards for Newly Listed Wastes

EPA has promulgated a number of hazardous waste listings since the
enactment of HSWA in 1984, referred to as ``newly listed wastes'' under
the LDR program. This rule describes the treatment technologies
(recycling is a type of treatment) identified as BDAT for several of
these newly listed wastes, and establishes treatment standards based on
these BDATs. Newly listed wastes included in today's rule are K141-
K145, K147-K148, and K149-K151 (coke by-product production wastes and
chlorotoluene wastes) (see 40 CFR 261.32 for a description of these
wastes).

D. Universal Treatment Standards

Today's rule promulgates universal treatment standards (UTS) for
organic, metal, and cyanide constituents--one set for wastewaters and a
different set for nonwastewaters--that replace existing treatment
standards for hazardous wastes. (``Replace'' is something of a
misnomer, as explained more fully below, since many of the standards
actually remain at current levels, and the rule does not require
treatment of hazardous constituents not already regulated under current
standards.) Currently, facilities managing hazardous wastes must meet
LDR treatment standards established for many different listed and
characteristic hazardous waste codes before the waste may be land
disposed. In some cases, a constituent regulated under the treatment
standard for one waste was also regulated in another waste at different
concentration levels. Today's rulemaking eliminates these differences
in concentration limits for the same constituent to provide a better
assessment of treatability, reduce confusion, and ease compliance and
enforcement. Promulgation of UTS does not change the constituents of
concern regulated in listed wastes--that is, if only cadmium, lead and
chromium have been regulated in a listed waste, only cadmium, lead and
chromium are subject to regulation now that UTS are promulgated.
However, the concentration levels for cadmium, lead and chromium now
are numerically identical with UTS for those constituents.

E. Modifications to Hazardous Waste Recycling Regulations

The Agency is modifying the regulatory framework to the definition
of solid waste to allow environmentally beneficial recycling operations
to continue without the regulatory impediments imposed by full RCRA
Subtitle C requirements. In turn, this will allow EPA and the states to
streamline their efforts and better focus on operations that are part
of the nation's waste disposal problem, rather than on those that are
not, while the Agency continues to look at the overall definition.
These modifications will broaden the 40 CFR 261.2(e)(1)(iii)
``closed-loop'' recycling exclusion from the definition of solid waste
such that the residues of a secondary process are excluded from being a
solid waste if they are reinserted into the process without prior
reclamation (and also similarly broaden the related 40 CFR 260.30(b)
variance for materials that are reclaimed prior to reinsertion). These
provisions will put secondary recovery operations that recycle residues
which they generated on the same regulatory footing as primary recovery
operations. The modifications are based, in part, on two Court opinions
(American Petroleum Institute v. EPA, 906 F.2d 726 (D.C. Cir. 1990)
(API) and American Mining Congress v. EPA, 907 F. 2d 1179 (D.C. Cir.
1990) (AMC II)) which indicate that the Agency has some discretion to
consider the manner in which a secondary material is managed in
determining RCRA jurisdiction (i.e., RCRA jurisdiction may be
determined, at least in part, by consideration of whether the material
is part of the waste management problem, as indicated by the potential
for the material to pose a hazard to human health and the environment
when recycled).

III. Improvements to the Existing Land Disposal Restrictions Program

A. Background

``Our goal is to make the entire federal government both less
expensive and more efficient . . . we intend to redesign, to reinvent,
to reinvigorate the entire national government.''

President Bill Clinton Remarks Announcing the National Performance
Review, March 3, 1993

``We are searching for ways to change--to work better and smarter
so that the Agency can deliver high quality results at a reduced cost.
Our aim is to treat citizens as customers, improve the service and
delivery of our programs, and eliminate waste and inefficiency.''

From ``Creating A U.S. Environmental Protection Agency that Works
Better And Costs Less'' (EPA's National Performance Review Phase I
Report)

In the past several years, the EPA has embarked on major efforts to
improve the quality of its work in protecting human health and the
environment. Coincident with this emphasis on improvement in the way
its work is done, the Agency is striving to help reinvent government,
in part by streamlining its organization and its work in order to be
more efficient and save public resources. In that spirit, a major part
of today's rule is designed to improve the quality and efficiency in
the Land Disposal Restrictions Program. The measures promulgated today
to improve the Program received widespread support from commenters when
they were proposed.
The universal treatment standards, described in detail in the next
section, greatly simplify both compliance and enforcement with the
LDRs, without sacrificing protection of the environment or human
health. In particular, the rule replaces the myriad constituent
concentration levels in the LDR treatment standards for most hazardous
wastes with a uniform set of constituent levels. Thus, the treatment
standard concentration for a constituent in waste A will be the same
concentration as for that constituent in waste B. As a result,
hazardous waste generators and treaters should be able to save money
and effort in treating hazardous wastes. These facilities will be able
to operate more efficiently by consolidating treatment activities. One
facility, for example, estimated an annual savings of $750,000 from not
having to campaign treat their wastes with varying limits. The
consistency provided by universal treatment standards will make it
easier to comply with the LDRs. Likewise, the universal treatment
standards will make the job of enforcement easier for state
governments. With universal treatment standards in place, it will also
be easier and quicker for EPA to set standards for hazardous wastes
identified in the future (assuming those standards are feasible and
appropriate for newly identified and listed wastes). The end result for
the regulated community, states, and the EPA will be to save resources
for other pressing tasks.
While establishment of universal treatment standards is the primary
improvement, other improvements are also included in today's rule. In
particular, the Agency is:
Consolidating three separate tables containing treatment
standards into a single consolidated table;
Reducing the information required on notification forms;
Simplifying the regulations for treatment of lab packs;
Providing easy-to-read flowcharts and a simple guide to
paperwork requirements in order to make the rule's requirements clearer
and easier to implement.
Although today's rule takes significant steps in improving the Land
Disposal Restrictions program, the Agency recognizes that further, in
fact continuing, improvement is necessary. Some of the universal
treatment standards (such as cyanide) will need to be reassessed upon
completion of Agency efforts to improve the analytic test method. HWIR
will need to be integrated into the Land Disposal Restrictions. The
Agency is also on a firm track of pursuing other avenues for continuous
quality improvement in the program. Ideas and suggestions for
improvements have, and will, come from: (1) Advance Notices of Proposed
Rulemaking published by EPA in order to acquire as much information as
possible from the public about treatment options; (2) communications
between EPA and its customers representing environmental groups,
generators, and treaters; and, (3) the LDR Program evaluation that is
currently being conducted, which was initiated by a public roundtable
discussion with a large number of customers. Consequently, the Agency
will continue to take advantage of opportunities to streamline and
improve the LDR program.

B. Universal Treatment Standards

The EPA is promulgating a single universal treatment standard (UTS)
for each constituent in nonwastewater form and a single UTS for each
constituent in wastewater form, regardless of the hazardous waste
containing the constituent.
1. Identification of Wastes to Which Universal Treatment Standards
Apply
The universal treatment standards apply to all listed and
characteristic wastes for which treatment standards have been
promulgated, with two exceptions. The first exception is the TC metal
wastes (D004-D011). These metal wastes will be addressed in the future
Phase IV LDR rule. (It should be noted that the mineral processing
wastes which were formerly excluded from RCRA Subtitle C regulation
under the Bevill Amendment are considered to be newly identified and
will also be addressed in Phase IV.) The second exception is those for
which the treatment standard is a specified method of treatment. Most
of these wastes must continue to be treated using those required
technologies. For a small number of wastes with previously specified
methods of treatment, the universal standards are an alternative, i.e.
either use of the specified method or the universal standard will
satisfy the LDR requirement. For those few situations where a mixture
of wastes may be subject to different standards for the same
constituent, the more stringent standard continues to apply. See
Sec. 268.41(b).
Although the proposed rule excluded F024 from the UTS, EPA is
applying UTS to F024 in today's rule. The existing standards, which
were unique among standards set for F- or K-listed wastes, incorporated
numerical treatment standards and also mandated a specific technology--
incineration. The original F024 numerical standards for metals were
also exceptionally low, reflecting the fact that F024 contains only low
levels of metals.
However, comments from Dow Freeport indicated that the low F024
metal limit needlessly prevented them from co-treating wastes, a
process that could save the facility $750,000/year, and that
application of UTS solved this problem without diminishing the extent
of treatment. EPA agrees, and is applying UTS to F024 in this rule
while continuing to require incineration.
UTS apply to underlying hazardous constituents in characteristic
wastes that are subject to LDRs. Apparent confusion in several comments
leads the Agency to clarify that UTS will apply to the F039 waste code,
the code for multi-source leachate. EPA used the F039 levels in the May
1993 Interim Final Rule as treatment standards for underlying hazardous
constituents in certain decharacterized D001 and D002 wastes (58 FR
29885). Consequently, UTS levels and F039 standards are identical, with
the exception of those few constituents regulated in F039 but not in
UTS. This means that the Interim Final Rule requirement that underlying
hazardous constituents in certain D001 and D002 wastes meet F039 levels
is now one and the same thing with the requirement that underlying
hazardous constituents meet UTS. (The term ``underlying hazardous
constituents'' is defined at 268.2(i)).
2. Differences in Universal Treatment Standards and Previous Treatment
Standards
In most cases (59%), UTS are the same as the previous treatment
standards. Thirty three percent of the standards went up or down within
a factor of ten of the original standard, while 8% underwent larger
changes (3% of the total number of UTS becoming significantly more
stringent). The following table lists the differences between the UTS
and previous standards.

Table 3.--Comparison of Universal Treatment Standards to Previously
Promulgated Treatment Standards
------------------------------------------------------------------------
Wastewater Nonwastewater
Parameter forms forms
------------------------------------------------------------------------
Total Number of Constituent/Waste Code
Combinations................................ 938 924
Number of Combinations Unchanged by the
Universal Treatment Standards............... 677 416
Number of Combinations for which the
Universal Treatment Standards are Slightly
Less Stringent\1\........................... 138 209
Number of Combinations for which the
Universal Treatment Standards are Slightly
More Stringent\1\........................... 76 199
Number of Combinations for which the
Universal Treatment Standards are
Significantly Less Stringent\2\............. 17 80
Number of Combinations for which the
Universal Treatment Standards are
Significantly More Stringent\2\............. 30 20
------------------------------------------------------------------------
\1\The change is less than a factor of ten greater or less than the
previously promulgated standard.
\2\The change is a factor of ten or more greater or less than the
previously promulgated standard.

This numerical comparison somewhat exaggerates the degree of
change. The changes in numerical values for many of the organic
constituents reflect adjustments in the limits of analytic detection.
Actual treatment will consequently likely continue to destroy or remove
organics to nondetectable levels. It also is important to note that
even in those cases where numerical limits have changed, the technology
basis has not. Treatment technology used to comply with the previous
standards should also be able to comply with UTS. Again, because most
treatment technologies cannot be so precisely calibrated as to achieve,
for instance, 3.5 ppm rather than 2.7 ppm, the likely result is that
the same amount of treatment will occur. The main impact of UTS will be
in simplifying compliance.
EPA also notes that very few of the commenters who complained about
treatment standards being unachievable provided data to support their
claims. Because most of the wastes subject to UTS are already subject
to LDR treatment requirements, there should be data documenting
treatment performance of these wastes that commenters could have
submitted. EPA believes, therefore, that the absence of substantiating
data cannot be attributable to commenters' inability to generate
treatment data. (The situation differs from the state of affairs at the
beginning of the land disposal restrictions program when there was
little existing treatment data to draw upon, because many hazardous
wastes were being disposed untreated, and there was little time to
generate such data.)
For discussion of comparison between the UTS and previous standards
for nonwastewater metal constituents, see section III.B.5.a. of this
preamble.
3. Universal Treatment Standards for Organic Hazardous Constituents
EPA is today promulgating UTS for nonwastewater and wastewater
forms of organic hazardous constituents, as found in the two tables in
this section.

a. Analyte Combinations

Motivated by concern for analytical feasibility, EPA proposed that
several groups or pairs of analytically similar organic compounds be
regulated as the sum of their concentrations rather than as individual
analytes. Commenters supported these proposals as a simplification of
analytical procedures, particularly the proposed total PCB standards
for arochlors. Thus, today's rule regulates each of these groups or
pairs collectively by setting wastewater and nonwastewater numbers
representing their sums rather than individual concentrations. Specific
analytes to be regulated with one wastewater and nonwastewater number
are: PCBs (arochlors), xylenes, benzo(b)fluoranthene/
benzo(k)fluoranthene and diphenylamine/diphenylnitrosamine.
PCBs: Today's approach for PCBs is consistent with the regulations
of other EPA offices, such as those promulgated pursuant to the Toxic
Substance Control Act (TSCA). This approach will also eliminate
analytical difficulties in quantifying each of the individual
arochlors.
The ``Total PCB'' standards include seven arochlors that represent
hundreds of isomers of polychlorinated biphenyls. Earlier LDR
regulations addressed individual arochlors and required recognition of
a gas chromatograph pattern which is often difficult to differentiate.
Furthermore, regulation of individual arochlors may be difficult for
wastes subject to degradation or treatment. EPA recommends SW-846
methods 8080 or 8081 (which use a gas chromatograph/electron capture
detector) for measurement of total PCBs.
Xylenes: Similarly, today's rule regulates the sum of several
xylene isomer analytes in both wastewaters and nonwastewaters. The
three xylenes included on the BDAT list of hazardous constituents are
ortho-, meta-, and para-xylene. Meta- and para-isomers co-elute in gas
chromatograph analysis. Two methods exist in SW-846 for the measurement
of total xylenes: 8020 and 8240. Method 8020 detects xylenes using a
photoionization detector and 8240 uses a mass spectrometer. Total
xylenes concentration is determined from the addition of the ortho-
xylene concentration and the meta-/para-xylene concentration.
Benzo(b)fluoranthene/Benzo(k)fluoranthene and Diphenylamine/
Diphenylnitrosamine: EPA is also regulating two pairs of analytically
problematic constituents, benzo(b)fluoranthene/ benzo(k)fluoranthene
and diphenylamine/diphenylnitrosamine with a single wastewater and
nonwastewater number for each pair.

b. Organics--Nonwastewaters

i. The Universal Treatment Standards Promulgated in Today's Rule

EPA is promulgating UTS for organics in nonwastewaters as proposed
with the exception of the standards for m- and p-cresols. These are the
only organic constituents for which commenters provided data supporting
changes to the proposed UTS. Although organic nonwastewater UTS differ
in some cases from the previously promulgated standards, the same
technology basis, combustion, can meet the limits. In the previous
standards as well as the UTS, the organic standards are based on a
detection level in a combustion residue (adjusted upward by a
variability factor accounting for analytic and process variability).
Differences between UTS and previous standards reflect a more
consistent assessment of achievable detection levels for various
constituents in combustion residues, and continue to be achievable
using BDAT, combustion. Because the essential technical issue at the
heart of these adjustments is the value of the detection limit, most of
these changes reflect analytical artifacts rather than absolute
differences in the quantities of toxics available for release following
land disposal.

ii. Modifications to Universal Treatment Standards Made in Response to
Comments

A petroleum refiner involved in building a biological treatment
system submitted data on organic nonwastewaters, and indicated their
concern about the lower treatment standards for certain organic
constituents that were proposed as UTS. The Agency evaluated the
commenter's data and found, in some cases, the commenter was requesting
that UTS levels be set at levels higher than the maximum levels in
their untreated wastes. Furthermore, the commenter's data did not
represent proper monitoring. The Agency was able to determine from
their data, however, that one limit, the proposed m- and p-cresol
limit, should be raised from 3.2 mg/kg to 5.6 mg/kg. This adjustment is
based on other factors described below.
The proposed UTS for m- and p-cresol was 3.2 mg/kg, which differed
from the proposed UTS for o-cresol, which was 5.6 mg/kg. Today's rule
promulgates 5.6 mg/kg for both o-cresol and m- and p-cresol. The
proposed limits for cresols were based on a detection limit of 2 mg/kg
for o-cresol and 1 mg/kg for m- and p-cresol from an incinerator ash
study used to develop nonwastewater standards in the Third Third
rulemaking. The differences in detection limits occurred because EPA
used different treatment tests to set the limits for o- versus m- and
p-cresol. Examination of the same test runs revealed that where o-
cresol had a detection level of 2 mg/kg, the detection level for m- and
p-cresol was also 2 mg/kg. In addition, where the detection level for
m- and p-cresol was 1 mg/kg, the detection level for o-cresol was also
1 mg/kg. Upon further review of other data, the Agency observed that
within a test, o-cresol and m- and p-cresols had the same detection
levels. The numbers for o-cresol and m- plus p-cresol promulgated in
today's rule were calculated with the same detection limit, as
justified by the data review, and the same recovery factor. The
resulting identical treatment standards reflect the fact that
incineration treats both of these isomer groups to the same level,
within the existing analytical constraints.

iii. Use of Alternative Treatment Technologies to Combustion

In establishing numerical treatment standards, the Agency allows
the use of any technology (other than impermissible dilution) to comply
with the limits. Some previous standards, namely those for petroleum
refining wastes, were based on combustion as well as thermal desorption
and solvent extraction. Under UTS, organic nonwastewater standards are
based on and achievable by combustion. As for other technologies, EPA
assessed whether the changes in limits disrupted commitments made to
use these other technologies. With regard to thermal desorption, EPA
examined comments on the proposed levels by three 'vendors of thermal
desorption units (Seaview Thermal Systems (STS), Separation and
Recovery Systems, Inc. (SRS), and Ecova (formerly Waste Tech
Services)), BDAT Background Development Documents for treatment
standards applicable to petroleum wastes, the Marathon delisting
petition, and other available literature.
These data demonstrate the achievability of UTS by thermal
desorption for petroleum refining wastes. This was an expected result,
given the comments on the Phase I LDR rule which addressed F037 and
F038 petroleum refining wastes. In these comments, a thermal desorption
company called for limits lower than today's UTS limits (these data
reflected lower detection levels, not necessarily better treatment than
today's UTS). Also important in the use of thermal desorption are the
operating conditions: raising the temperature, and/or the detention
time increases the amount of hazardous organic constituents desorbed.
As for solvent extraction, the data used for development of the
K048-K052 treatment standards achieved UTS levels for about half of the
demonstration runs. Operating conditions, such as solvent selection,
solvent to waste ratios, detention time, and number of treatment passes
significantly affect treatment results, and the agency believes these
parameters can be adjusted to comply with the UTS. There may, however,
be other factors which result in this technology not being selected,
and based on information available to the Agency, no petroleum refining
facilities are utilizing solvent extraction.
EPA requested comments on the achievability of the proposed UTS for
petroleum refining wastes when treated via noncombustion technologies.
(See 58 FR 48106-48107.) EPA also requested comments on whether the
industry has invested in non-combustion technologies, including those
designated as BDAT in previous rules that cannot meet the UTS. In
particular, EPA requested information on the type of treatment,
performance data, and an explanation of why existing treatment could
not be adjusted and operated more efficiently to comply with the UTS.
EPA also pointed out it was willing to revise the proposed UTS, if data
indicated that appropriate noncombustion technologies could achieve
slightly higher levels than those proposed for UTS.
Only one commenter, Valero, Inc., submitted comments with regard to
a contractual agreement for the construction of a full scale bioslurry
reactor and data from a bench scale treatability study. None of the
other petroleum refining commenters indicated they had invested in
noncombustion technologies. Valero, Inc., and two remediation
companies, Retec Technologies and OHM Corporation, submitted data on
biotreatment of organic constituents. They reported treatment
efficiencies from 40 to 60 percent for some PNAs and questioned whether
the proposed treatment standards can be routinely achieved by
biotreatment technologies. EPA does not generally consider such
treatment efficiencies adequate for organic constituents. As indicated
previously, facilities can use any technology other than impermissible
dilution to comply with the treatment standards. If design and
operating conditions can be adjusted to meet the limits, this could be
full compliance. If not, the technology may still be appropriate for
remediation wastes, for which standards are currently being revised in
the development of HWIR.

Universal Treatment Standards for Organic Hazardous Constituents
----------------------------------------------------------------------------------------------------------------
Nonwastewater
standard;
concentration in
Regulated constituent--common name CAS\1\ No. mg/kg\2\ unless
noted as ``mg/l
TCLP''
----------------------------------------------------------------------------------------------------------------
Acenaphthylene........................................................... 208-96-8 3.4
Acenaphthene............................................................. 83-32-9 3.4
Acetone.................................................................. 67-64-1 160
Acetonitrile............................................................. 75-05-8 1.8
Acetophenone............................................................. 96-86-2 9.7
2-Acetylaminofluorene.................................................... 53-96-3 140
Acrolein................................................................. 107-02-8 NA
Acrylamide............................................................... 79-06-1 23
Acrylonitrile............................................................ 107-13-1 84
Aldrin................................................................... 309-00-2 0.066
4-Aminobiphenyl.......................................................... 92-67-1 NA
Aniline.................................................................. 62-53-3 14
Anthracene............................................................... 120-12-7 3.4
Aramite.................................................................. 140-57-8 NA
alpha-BHC................................................................ 319-84-6 0.066
beta-BHC................................................................. 319-85-7 0.066
delta-BHC................................................................ 319-86-8 0.066
gamma-BHC................................................................ 58-89-9 0.066
Benzene.................................................................. 71-43-2 10
Benz(a)anthracene........................................................ 56-55-3 3.4
Benzal chloride.......................................................... 98-87-3 6.0
Benzo(b)fluoranthene (difficult to distinguish from benzo(k)fluoranthene) 205-99-2 6.8
Benzo(k)fluoranthene (difficult to distinguish from benzo(b)fluoranthene) 207-08-9 6.8
Benzo(g,h,i)perylene..................................................... 191-24-2 1.8
Benzo(a)pyrene........................................................... 50-32-8 3.4
Bromodichloromethane..................................................... 75-27-4 15
Methyl bromide (Bromomethane)............................................ 74-83-9 15
4-Bromophenyl phenyl ether............................................... 101-55-3 15
n-Butyl alcohol.......................................................... 71-36-3 2.6
Butyl benzyl phthalate................................................... 85-68-7 28
2-sec-Butyl-4,6-dinitrophenol (Dinoseb).................................. 88-85-7 2.5
Carbon disulfide......................................................... 75-15-0 (\3\)
Carbon tetrachloride..................................................... 56-23-5 6.0
Chlordane (alpha and gamma isomers)...................................... 57-74-9 0.26
p-Chloroaniline.......................................................... 106-47-8 16
Chlorobenzene............................................................ 108-90-7 6.0
Chlorobenzilate.......................................................... 510-15-6 NA
2-Chloro-1,3-butadiene................................................... 126-99-8 0.28
Chlorodibromomethane..................................................... 124-48-1 15
Chloroethane............................................................. 75-00-3 6.0
bis(2-Chloroethoxy)methane............................................... 111-91-1 7.2
bis(2-Chloroethyl)ether.................................................. 111-44-4 6.0
Chloroform............................................................... 67-66-3 6.0
bis(2-Chloroisopropyl)ether.............................................. 108-60-1 7.2
p-Chloro-m-cresol........................................................ 59-50-7 14
2-Chloroethyl vinyl ether................................................ 110-75-8 NA
Chloromethane (Methyl chloride).......................................... 74-87-3 30
2-Chloronaphthalene...................................................... 91-8-7 5.6
2-Chlorophenol........................................................... 95-57-8 5.7
3-Chloropropylene........................................................ 107-05-1 30
Chrysene................................................................. 218-01-9 3.4
o-Cresol................................................................. 95-48-7 5.6
m-Cresol (difficult to distinguish from p-cresol)........................ 108-39-4 5.6
p-Cresol (difficult to distinguish from m-cresol)........................ 106-44-5 5.6
Cyclohexanone............................................................ 108-94-1 (\4\)
1,2-Dibromo-3-chloropropane.............................................. 96-12-8 15
Ethylene dibromide (1,2-Dibromoethane)................................... 106-93-4 15
Dibromomethane........................................................... 74-95-3 15
2,4-D (2,4-Dichlorophenoxyacetic acid)................................... 94-75-7 10
o,p'-DDD................................................................. 53-19-0 0.087
p,p'-DDD................................................................. 72-54-8 0.087
o,p'-DDE................................................................. 3424-82-6 0.087
p,p'-DDE................................................................. 72-55-9 0.087
o,p'-DDT................................................................. 789-02-6 0.087
p,p'-DDT................................................................. 50-29-3 0.087
Dibenz (a,h) anthracene.................................................. 53-70-3 8.2
Dibenz (a,e) pyrene...................................................... 192-65-4 NA
m-Dichlorobenzene........................................................ 541-73-1 6.0
o-Dichlorobenzene........................................................ 95-50-1 6.0
p-Dichlorobenzene........................................................ 106-46-7 6.0
Dichlorodifluoromethane.................................................. 75-71-8 7.2
1,1-Dichloroethane....................................................... 75-34-3 6.0
1,2-Dichloroethane....................................................... 107-06-2 6.0
1,1-Dichloroethylene..................................................... 75-35-4 6.0
trans-1,2-Dichloroethylene............................................... 156-60-5 30
2,4-Dichlorophenol....................................................... 120-83-2 14
2,6-Dichlorophenol....................................................... 87-65-0 14
1,2-Dichloropropane...................................................... 78-87-5 18
cis-1,3-Dichloropropylene................................................ 10061-01-5 18
trans-1,3-Dichloropropylene.............................................. 10061-02-6 18
Dieldrin................................................................. 60-57-1 0.13
Diethyl phthalate........................................................ 84-66-2 28
2-4-Dimethyl phenol...................................................... 105-67-9 14
Dimethyl phthalate....................................................... 131-11-3 28
Di-n-butyl phthalate..................................................... 84-74-2 28
1,4-Dinitrobenzene....................................................... 100-25-4 2.3
4,6-Dinitro-o-cresol..................................................... 534-52-1 160
2,4-Dinitrophenol........................................................ 51-28-5 160
2,4-Dinitrotoluene....................................................... 121-14-2 140
2,6-Dinitrotoluene....................................................... 606-20-2 28
Di-n-octyl phthalate..................................................... 117-84-0 28
p-Dimethylaminoazobenzene................................................ 60-11-7 NA
Di-n-propylnitrosamine................................................... 621-64-7 14
1,4-Dioxane.............................................................. 123-91-1 170
Diphenylamine (difficult to distinguish from diphenylnitrosamine)........ 122-39-4 13
Diphenylnitrosamine (difficult to distinguish from diphenylamine)........ 86-30-6 13
1,2-Diphenylhydrazine.................................................... 122-66-7 NA
Disulfoton............................................................... 298-04-4 6.2
Endosulfan I............................................................. 939-98-8 0.066
Endosulfan II............................................................ 33213-6-5 0.13
Endosulfan sulfate....................................................... 1-31-07-8 0.13
Endrin................................................................... 72-20-8 0.13
Endrin aldehyde.......................................................... 7421-93-4 0.13
Ethyl acetate............................................................ 141-78-6 33
Ethyl cyanide (Propanenitrile)........................................... 107-12-0 360
Ethyl benzene............................................................ 100-41-4 10
Ethyl ether.............................................................. 60-29-7 160
bis (2-Ethylhexyl) phthalate............................................. 117-81-7 28
Ethyl methacrylate....................................................... 97-63-2 160
Ethylene oxide........................................................... 75-21-8 NA
Famphur.................................................................. 52-85-7 15
Fluoranthene............................................................. 206-44-0 3.4
Fluorene................................................................. 86-73-7 3.4
Heptachlor............................................................... 76-44-8 0.066
Heptachlor epoxide....................................................... 1024-57-3 0.066
Hexachlorobenzene........................................................ 118-74-1 10
Hexachlorobutadiene...................................................... 87-68-3 5.6
Hexachlorocyclopentadiene................................................ 77-47-4 2.4
HxCDDs (All Hexachlorodibenzo-p-dioxins)................................. NA 0.001
HxCDFs (All Hexachlorodibenzofurans)..................................... NA 0.001
Hexachloroethane......................................................... 67-72-1 30
Hexachloropropylene...................................................... 1888-71-7 30
Indeno(1,2,3-c,d)pyrene.................................................. 193-39-5 3.4
Iodomethane.............................................................. 74-88-4 65
Isobutyl alcohol......................................................... 78-83-1 170
Isodrin.................................................................. 465-73-6 0.066
Isosafrole............................................................... 120-58-1 2.6
Kepone................................................................... 143-50-8 0.13
Methacrylonitrile........................................................ 126-98-7 84
Methanol................................................................. 67-56-1 (\5\)
Methapyrilene............................................................ 91-80-5 1.5
Methoxychlor............................................................. 72-43-5 0.18
3-Methylcholanthrene..................................................... 56-49-5 15
4,4-Methylene bis(2-chloroaniline)....................................... 101-14-4 30
Methylene chloride....................................................... 75-09-2 30
Methyl ethyl ketone...................................................... 78-93-3 36
Methyl isobutyl ketone................................................... 108-10-1 33
Methyl methacrylate...................................................... 80-62-6 160
Methyl methansulfonate................................................... 66-27-3 NA
Methyl parathion......................................................... 298-00-0 4.6
Naphthalene.............................................................. 91-20-3 5.6
2-Naphthylamine.......................................................... 91-59-8 NA
o-Nitroaniline........................................................... 88-74-4 14
p-Nitroaniline........................................................... 100-01-6 28
Nitrobenzene............................................................. 98-95-3 14
5-Nitro-o-toluidine...................................................... 99-55-8 28
o-Nitrophenol............................................................ 88-75-5 13
p-Nitrophenol............................................................ 100-02-7 29
N-Nitrosodiethylamine.................................................... 55-18-5 28
N-Nitrosodimethylamine................................................... 62-75-9 2.3
N-Nitroso-di-n-butylamine................................................ 924-16-3 17
N-Nitrosomethylethylamine................................................ 10595-95-6 2.3
N-Nitrosomorpholine...................................................... 59-89-2 2.3
N-Nitrosopiperidine...................................................... 100-75-4 35
N-Nitrosopyrrolidine..................................................... 930-55-2 35
Parathion................................................................ 56-38-2 4.6
Total PCBs (sum of all PCB isomers, or all Arochlors).................... 1336-36-3 10
Pentachlorobenzene....................................................... 608-93-5 10
PeCDDs (All Pentachlorodibenzo-p-dioxins)................................ NA 0.001
PeCDFs (All Pentachlorodibenzofurans).................................... NA 0.001
Pentachloroethane........................................................ 76-01-7 6.0
Pentachloronitrobenzene.................................................. 82-68-8 4.8
Pentachlorophenol........................................................ 87-86-5 7.4
Phenacetin............................................................... 62-44-2 16
Phenanthrene............................................................. 85-01-8 5.6
Phenol................................................................... 108-95-2 6.2
Phorate.................................................................. 298-02-2 4.6
Phthalic acid............................................................ 100-21-0 28
Phthalic anhydride....................................................... 85-44-9 28
Pronamide................................................................ 23950-58-5 1.5
Pyrene................................................................... 129-00-0 8.2
Pyridine................................................................. 110-86-1 16
Safrole.................................................................. 94-59-7 22
Silvex(2,4,5-TP)......................................................... 93-72-1 7.9
2,4,5-T(2,4,5-Trichlorophenoxyacetic acid)............................... 93-76-5 7.9
1,2,4,5-Tetrachlorobenzene............................................... 95-94-3 14
TCDDs (All Tetrachlorodibenzo-p-dioxins)................................. NA 0.001
TCDFs (All Tetrachlorodibenzofurans)..................................... NA 0.001
1,1,1,2-Tetrachloroethane................................................ 630-20-6 6.0
1,1,2,2-Tetrachloroethane................................................ 79-34-6 6.0
Tetrachloroethylene...................................................... 127-18-4 6.0
2,3,4,6-Tetrachlorophenol................................................ 58-90-2 7.4
Toluene.................................................................. 108-88-3 10
Toxaphene................................................................ 8001-35-2 2.6
Bormoform (Tribromomethane).............................................. 75-25-2 15
1,2,4-Trichlorobenzene................................................... 120-82-1 19
1,1,1-Trichloroethane.................................................... 71-55-6 6.0
1,1,2-Trichloroethane.................................................... 79-00-5 6.0
Trichloroethylene........................................................ 79-01-6 6.0
Trichloromonofluoromethane............................................... 75-69-4 30
2,4,5-Trichlorophenol.................................................... 95-95-4 7.4
2,4,6-Trichlorophenol.................................................... 88-06-2 7.4
1,2,3-Trichloropropane................................................... 96-18-4 30
1,1,2-Trichloro-1,2,2,-trifluoroethane................................... 76-13-1 30
tris-(2,3-Dibromopropyl) phosphate....................................... 126-72-7 0.10
Vinyl chloride........................................................... 75-01-4 6.0
Xylenes-mixed isomers (sum of o-, m-, p-xylene concentrations)........... 1330-20-7 30
----------------------------------------------------------------------------------------------------------------
\1\CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
combination of a chemical with it's salts and/or esters, the CAS number is given for the parent compound only.
\2\All concentration standards for nonwastewaters are based on analysis of grab samples.
\3\4.8 mg/l TCLP.
\4\0.75 mg/l TCLP.
\5\0.75 mg/l TCLP.
Note: NA means not applicable.

c. Organics--Wastewaters

i. The Universal Treatment Standards Promulgated in Today's Rule

The set of wastewater UTS proposed in September 1993 was virtually
identical to the F039 wastewater standards promulgated in the Third
Third Rule. Applying UTS to F- and K- listed wastes changes organic
constituent wastewater standards in a handful of codes (F024, K001,
K011/13/14, K015, K040, K038, K036, K037, K060, K099, K103/104, and
U051). Commenters raised specific concerns with three of the organic
wastewater treatment standards, and EPA is revising the proposed
standards for two of the three constituents: the wastewater standard
proposed for carbon disulfide will change from 0.014 mg/l to 3.8 mg/l,
and the proposed wastewater universal treatment standard for 1,4-
dioxane has been withdrawn. Changes to the treatment standards for
these two constituents is explained in the following section. The third
constituent was acetonitrile. Monsanto, Dupont, Cytec and other
acrylonitrile producers, together with the Chemical Manufacturing
Association's Acrylonitrile Group, objected to EPA extending the UTS to
acrylonitrile production wastes K011, K013 and K014. Their comments
stated that the acetonitrile wastewater UTS was unachievably low in
acrylonitrile wastes. The Agency is promulgating an acetonitrile UTS of
5.6 based on steam stripping performance data. This level also appears
achievable by WAO (wet air oxidation) followed by PACT@ (a combination
of powdered activated carbon treatment and activated sludge).

ii. Treatment Standard Modification Made in Response to Comments

Carbon Disulfide. In response to data submitted by the Chemical
Manufacturer's Association's Carbon Disulfide Task Force, EPA is
promulgating a treatment standard of 3.8 mg/l based on data submitted
by several facilities which generate high concentrations of carbon
disulfide in wastewaters. The proposed wastewater treatment standard
(0.014 mg/l) was based on one data point for biological treatment.
After receiving substantially more treatment data representative of
more significant influent concentrations, EPA is promulgating a carbon
disulfide wastewater number of 3.8 mg/l, based on the performance of
activated sludge at one of the facilities generating carbon disulfide.
1,4-Dioxane. Eastman Chemical reported that serious analytical
problems, namely wide variation in detection limits, precluded reliable
and accurate quantification of 1,4-dioxane. After reviewing detection
limit data, EPA decided to withdraw the wastewater treatment standard
for 1,4-dioxane pending technical resolution in a later rule. This
decision changes the treatment standard for U108 (1,4-dioxane)
wastewaters. Formerly the wastewater treatment standard was 0.12 mg/l;
today's rule promulgates a method of treatment as a standard for U108
wastewaters, namely wet air oxidation or chemical oxidation followed by
carbon adsorption or incineration.

Universal Treatment Standards for Organics
----------------------------------------------------------------------------------------------------------------
Wastewater standard
----------------------
Regulated constituent--Common name CAS\1\ No. Concentration in mg/
l\2\
----------------------------------------------------------------------------------------------------------------
Acenaphthylene........................................................ 208-96-8 0.059
Acenaphthene.......................................................... 83-32-9 0.059
Acetone............................................................... 67-64-1 0.28
Acetonitrile.......................................................... 75-05-8 5.6
Acetophenone.......................................................... 96-86-2 0.010
2-Acetylaminofluorene................................................. 53-96-3 0.059
Acrolein.............................................................. 107-02-8 0.29
Acrylamide............................................................ 79-06-1 19
Acrylonitrile......................................................... 107-13-1 0.24
Aldrin................................................................ 309-00-2 0.021
4-Aminobiphenyl....................................................... 92-67-1 0.13
Aniline............................................................... 62-53-3 0.81
Anthracene............................................................ 120-12-7 0.059
Aramite............................................................... 140-57-8 0.36
alpha-BHC............................................................. 319-84-6 0.00014
beta-BHC.............................................................. 319-85-7 0.00014
delta-BHC............................................................. 319-86-8 0.023
gamma-BHC............................................................. 58-89-9 0.0017
Benzene............................................................... 71-43-2 0.14
Benz(a)anthracene..................................................... 56-55-3 0.059
Benzal chloride....................................................... 98-87-3 0.055
Benzo(b)fluoranthene (difficult to distinguish from
benzo(k)fluoranthene)................................................ 205-99-2 0.11
Benzo(k)fluoranthene (difficult to distinguish from
benzo(b)fluoranthene)................................................ 207-08-9 0.11
Benzo(g,h,i)perylene.................................................. 191-24-2 0.0055
Benzo(a)pyrene........................................................ 50-32-8 0.061
Bromodichloromethane.................................................. 75-27-4 0.35
Methyl bromide (Bromomethane)......................................... 74-83-9 0.11
4-Bromophenyl phenyl ether............................................ 101-55-3 0.055
n-Butyl alcohol....................................................... 71-36-3 5.6
Butyl benzyl phthalate................................................ 85-68-7 0.017
2-sec-Butyl-4,6-dinitrophenol (Dinoseb)............................... 88-85-7 0.066
Carbon disulfide...................................................... 75-15 03.8
Carbon tetrachloride.................................................. 56-23-5 0.057
Chlordane (alpha and gamma isomers)................................... 57-74-9 0.0033
p-Chloroaniline....................................................... 106-47-8 0.46
Chlorobenzene......................................................... 108-90-7 0.057
Chlorobenzilate....................................................... 510-15-6 0.10
2-Chloro-1,3-butadiene................................................ 126-99-8 0.057
Chlorodibromomethane.................................................. 124-48-1 0.057
Chloroethane.......................................................... 75-00-3 0.27
bis(2-Chloroethoxy)methane............................................ 111-91-1 0.036
bis(2-Chloroethyl)ether............................................... 111-44-4 0.033
Chloroform............................................................ 67-66-3 0.046
bis(2-Chloroisopropyl)ether........................................... 108-60-1 0.055
p-Chloro-m-cresol..................................................... 59-50-7 0.018
2-Chloroethyl vinyl ether............................................. 110-75-8 0.062
Chloromethane (Methyl chloride)....................................... 74-87-3 0.19
2-Chloronaphthalene................................................... 91-8-7 0.055
2-Chlorophenol........................................................ 95-57-8 0.044
3-Chloropropylene..................................................... 107-05-1 0.036
Chrysene.............................................................. 218-01-9 0.059
o-Cresol.............................................................. 95-48-7 0.11
m-Cresol (difficult to distinguish from p-cresol)..................... 108-39-4 0.77
p-Cresol (difficult to distinguish from m-cresol)..................... 106-44-5 0.77
Cyclohexanone......................................................... 108-94-1 0.36
1,2-Dibromo-3-chloropropane........................................... 96-12-8 0.11
Ethylene dibromide (1,2-Dibromoethane)................................ 106-93-4 0.028
Dibromomethane........................................................ 74-95-3 0.11
2,4-D (2,4-Dichlorophenoxyacetic acid)................................ 94-75-7 0.72
o,p'-DDD.............................................................. 53-19-0 0.023
p,p'-DDD.............................................................. 72-54-8 0.023
o,p'-DDE.............................................................. 3424-82-6 0.031
p,p'-DDE.............................................................. 72-55-9 0.031
o,p'-DDT.............................................................. 789-02-6 0.0039
p,p'-DDT.............................................................. 50-29-3 0.0039
Dibenz(a,h)anthracene................................................. 53-70-3 0.055
Dibenz(a,e)pyrene..................................................... 192-65-4 0.061
m-Dichlorobenzene..................................................... 541-73-1 0.036
o-Dichlorobenzene..................................................... 95-50-1 0.088
p-Dichlorobenzene..................................................... 106-46-7 0.090
Dichlorodifluoromethane............................................... 75-71-8 0.23
1,1-Dichloroethane.................................................... 75-34-3 0.059
1,2-Dichloroethane.................................................... 107-06-2 0.21
1,1-Dichloroethylene.................................................. 75-35-4 0.025
trans-1,2-Dichloroethylene............................................ 156-60-5 0.054
2,4-Dichlorophenol.................................................... 120-83-2 0.044
2,6-Dichlorophenol.................................................... 87-65-0 0.044
1,2-Dichloropropane................................................... 78-87-5 0.85
cis-1,3-Dichloropropylene............................................. 10061-01-5 0.036
trans-1,3-Dichloropropylene........................................... 10061-02-6 0.036
Dieldrin.............................................................. 60-57-1 0.017
Diethyl phthalate..................................................... 84-66-2 0.20
2-4-Dimethyl phenol................................................... 105-67-9 0.036
Dimethyl phthalate.................................................... 131-11-3 0.047
Di-n-butyl phthalate.................................................. 84-74-2 0.057
1,4-Dinitrobenzene.................................................... 100-25-4 0.32
4,6-Dinitro-o-cresol.................................................. 534-52-1 0.28
2,4-Dinitrophenol..................................................... 51-28-5 0.12
2,4-Dinitrotoluene.................................................... 121-14-2 0.32
2,6-Dinitrotoluene.................................................... 606-20-2 0.55
Di-n-octyl phthalate.................................................. 117-84-0 0.017
p-Dimethylaminoazobenzene............................................. 60-11-7 0.13
Di-n-propylnitrosamine................................................ 621-64-7 0.40
Diphenylamine (difficult to distinguish from diphenylnitrosamine)..... 122-39-4 0.92
Diphenylnitrosamine (difficult to distinguish from diphenylamine)..... 86-30-6 0.92
1,2-Diphenylhydrazine................................................. 122-66-7 0.087
Disulfoton............................................................ 298-04-4 0.017
Endosulfan I.......................................................... 939-98-8 0.023
Endosulfan II......................................................... 33213-6-5 0.029
Endosulfan sulfate.................................................... 1-31-07-8 0.029
Endrin................................................................ 72-20-8 0.0028
Endrin aldehyde....................................................... 7421-93-4 0.025
Ethyl acetate......................................................... 141-78-6 0.34
Ethyl cyanide (Propanenitrile)........................................ 107-12-0 0.24
Ethyl benzene......................................................... 100-41-4 0.057
Ethyl ether........................................................... 60-29-7 0.12
bis(2-Ethylhexyl) phthalate........................................... 117-81-7 0.28
Ethyl methacrylate.................................................... 97-63-2 0.14
Ethylene oxide........................................................ 75-21-8 0.12
Famphur............................................................... 52-85-7 0.017
Fluoranthene.......................................................... 206-44-0 0.068
Fluorene.............................................................. 86-73-7 0.059
Heptachlor............................................................ 76-44-8 0.0012
Heptachlor epoxide.................................................... 1024-57-3 0.016
Hexachlorobenzene..................................................... 118-74-1 0.055
Hexachlorobutadiene................................................... 87-68-3 0.055
Hexachlorocyclopentadiene............................................. 77-47-4 0.057
HxCDDs (All Hexachlorodibenzo-p-dioxins).............................. NA 0.000063
HxCDFs (All Hexachlorodibenzofurans).................................. NA 0.000063
Hexachloroethane...................................................... 67-72-1 0.055
Hexachloropropylene................................................... 1888-71-7 0.035
Indeno (1,2,3-c,d) pyrene............................................. 193-39-5 0.0055
Iodomethane........................................................... 74-88-4 0.19
Isobutyl alcohol...................................................... 78-83-1 5.6
Isodrin............................................................... 465-73-6 0.021
Isosafrole............................................................ 120-58-1 0.081
Kepone................................................................ 143-50-8 0.0011
Methacrylonitrile..................................................... 126-98-7 0.24
Methanol.............................................................. 67-56 15.6
Methapyrilene......................................................... 91-80-5 0.081
Methoxychlor.......................................................... 72-43-5 0.25
3-Methylcholanthrene.................................................. 56-49-5 0.0055
4,4-Methylene bis(2-chloroaniline).................................... 101-14-4 0.50
Methylene chloride.................................................... 75-09-2 0.089
Methyl ethyl ketone................................................... 78-93-3 0.28
Methyl isobutyl ketone................................................ 108-10-1 0.14
Methyl methacrylate................................................... 80-62-6 0.14
Methyl methansulfonate................................................ 66-27-3 0.018
Methyl parathion...................................................... 298-00-0 0.014
Naphthalene........................................................... 91-20-3 0.059
2-Naphthylamine....................................................... 91-59-8 0.52
o-Nitroaniline........................................................ 88-74-4 0.27
p-Nitroaniline........................................................ 100-01-6 0.028
Nitrobenzene.......................................................... 98-95-3 0.068
5-Nitro-o-toluidine................................................... 99-55-8 0.32
o-Nitrophenol......................................................... 88-75-5 0.028
p-Nitrophenol......................................................... 100-02-7 0.12
N-Nitrosodiethylamine................................................. 55-18-5 0.40
N-Nitrosodimethylamine................................................ 62-75-9 0.40
N-Nitroso-di-n-butylamine............................................. 924-16-3 0.40
N-Nitrosomethylethylamine............................................. 10595-95-6 0.40
N-Nitrosomorpholine................................................... 59-89-2 0.40
N-Nitrosopiperidine................................................... 100-75-4 0.013
N-Nitrosopyrrolidine.................................................. 930-55-2 0.013
Parathion............................................................. 56-38-2 0.014
Total PCBs (sum of all PCB isomers, or all Arochlors)................. 1336-36-3 0.10
Pentachlorobenzene.................................................... 608-93-5 0.055
PeCDDs (All Pentachlorodibenzo-p-dioxins)............................. NA 0.000063
PeCDFs (All Pentachlorodibenzofurans)................................. NA 0.000035
Pentachloroethane..................................................... 76-01-7 0.055
Pentachloronitrobenzene............................................... 82-68-8 0.055
Pentachlorophenol..................................................... 87-86-5 0.089
Phenacetin............................................................ 62-44-2 0.081
Phenanthrene.......................................................... 85-01-8 0.059
Phenol................................................................ 108-95-2 0.039
Phorate............................................................... 298-02-2 0.021
Phthalic acid......................................................... 100-21-0 0.055
Phthalic anhydride.................................................... 85-44-9 0.055
Pronamide............................................................. 23950-58-5 0.093
Pyrene................................................................ 129-00-0 0.067
Pyridine.............................................................. 110-86-1 0.014
Safrole............................................................... 94-59-7 0.081
Silvex (2,4,5-TP)..................................................... 93-72-1 0.72
2,4,5-T (2,4,5-Trichlorophenoxyacetic acid)........................... 93-76-5 0.72
1,2,4,5-Tetrachlorobenzene............................................ 95-94-3 0.055
TCDDs (All Tetrachlorodibenzo-p-dioxins).............................. NA 0.000063
TCDFs (All Tetrachlorodibenzofurans).................................. NA 0.000063
1,1,1,2-Tetrachloroethane............................................. 630-20-6 0.057
1,1,2,2-Tetrachloroethane............................................. 79-34-6 0.057
Tetrachloroethylene................................................... 127-18-4 0.056
2,3,4,6-Tetrachlorophenol............................................. 58-90-2 0.030
Toluene............................................................... 108-88-3 0.080
Toxaphene............................................................. 8001-35-2 0.0095
Bromoform (Tribromomethane)........................................... 75-25-2 0.63
1,2,4-Trichlorobenzene................................................ 120-82-1 0.055
1,1,1-Trichloroethane................................................. 71-55-6 0.054
1,1,2-Trichloroethane................................................. 79-00-5 0.054
Trichloroethylene..................................................... 79-01-6 0.054
Trichloromonofluoromethane............................................ 75-69-4 0.020
2,4,5-Trichlorophenol................................................. 95-95-4 0.18
2,4,6-Trichlorophenol................................................. 88-06-2 0.035
1,2,3-Trichloropropane................................................ 96-18-4 0.85
1,1,2-Trichloro-1,2,2-trifluoroethane................................. 76-13-1 0.057
tris-(2,3-Dibromopropyl) phosphate.................................... 126-72-7 0.11
Vinyl chloride........................................................ 75-01-4 0.27
Xylenes-mixed isomers (sum of o-, m-, and p-xylene concentrations).... 1330-20-7 0.32
----------------------------------------------------------------------------------------------------------------
\1\CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\Concentration standards for wastewaters are expressed in mg/l are based on analysis of composite samples.
Note: NA means not applicable.

5. Universal Treatment Standards for Metal Hazardous Constituents
EPA is promulgating UTS for both the nonwastewater and wastewater
forms of each of the 14 BDAT list metal constituents. The standards are
found in the table ``Universal Treatment Standards for Metal
Constituents'' at the end of this preamble section. These UTS will
replace the existing metal constituent treatment standards for all
listed wastes, and will constitute applicable levels for underlying
hazardous metal constituents in ignitable, corrosive and TC organic
wastes. They do not apply to wastes exhibiting the toxicity
characteristic due to metal constituents, i.e., waste codes D004-D012,
nor do they replace the treatment standards promulgated in the Third
Third rule for EP metals. Wastecodes D004-D012 will be addressed in an
upcoming rulemaking.

a. Nonwastewaters

The nonwastewater UTS for 12 of the 14 metal constituents are based
on the performance of high temperature metal recovery (HTMR) or
stabilization. The remaining two metals are arsenic for which the
standard is based on vitrification, and mercury, which standard
requires recovery by roasting or retorting for certain highly
concentrated mercury wastes. As always, when the Agency develops
concentration-based treatment standards, the use of other technologies
to achieve those standards is allowed.
The following table presents a comparison of the previously
promulgated standards with the UTS.

Comparison of UTS Nonwastewater TCLP Concentrations Versus Previous Standards for Metals
----------------------------------------------------------------------------------------------------------------
Previous standards being replaced
Final UTS NWW standards ---------------------------------------------------------------
(TCLP) Old
level Waste codes
----------------------------------------------------------------------------------------------------------------
Antimony............ 2.1....................... 2.1 K061
.......................... 0.23 K021, F039
Arsenic............. 5.0....................... 5.6 K031, K084, K101, K102, P010, P011, P036, P038, U136
.......................... 5.0 F039
.......................... 0.055 K061
Barium.............. 7.6....................... 52 F039, P013
.......................... 7.6 K061
Beryllium........... 0.014..................... 0.014 K061
Cadmium............. 0.19...................... 0.19 K061
.......................... 0.14 K069
.......................... 0.066 F006, F007, F008, F009, F011, F012, F039, K100
Chromium............ 0.86...................... 5.2 F006, F007, F008, F009, F011, F012, F019, F039, K006
(hydrated), K061, K100
.......................... 1.7 K015, K048, K049, K050, K051, K052
.......................... 0.33 K061
.......................... 0.094 K002, K003, K004, K005, K006, K007, K008, K062,
K086, U032
.......................... 0.073 K028
Lead................ 0.37...................... 0.51 F006, F007, F008, F009, F011, F012, F039, K001,
K087, K100, U051, U144, U145, U146, P110
.......................... 0.37 K002, K003, K004, K005, K006, K007, K008, K061,
K062, K086
.......................... 0.24 K069
.......................... 0.18 K046
.......................... 0.021 K028
Mercury............. 0.20 for retort residues 0.20 K106, U151, P065, P092 (for RMERC residues)
0.025 for other residues.
.......................... 0.025 K071, K106, U151, P065, P092 (low mercury wastes),
F039
.......................... 0.009 K061
Nickel.............. 5.0....................... 5.0 K061
.......................... 0.32 F006, F007, F008, F009, F011, F012, F039, K115, K061
(stabilization)
.......................... 0.2 K015, K048, K049, K050, K051, K052
.......................... 0.088 K028, K083
Selenium............ 0.16...................... 5.7 F039, P103, P114, U204, U205
.......................... 0.16 K061
Silver.............. 0.30...................... 0.30 K061
.......................... 0.072 F006, F007, F008, F009, F011, F012, P099, P104
Thallium............ 0.078..................... 0.078 K061
Vanadium............ 0.23...................... 0.23 K061
Zinc................ 5.3....................... 5.3 K061
----------------------------------------------------------------------------------------------------------------
Note: Constituents are actually regulated only if the treatment standard specifically requires it (for listed
wastes, or constituents are reasonably expected to be present (underlying hazardous constituents in
characteristic wastes).

Commenters objected to the proposed levels and provided treatment
data for only two metal limits, chromium and mercury. The Agency
revised the proposed treatment standards for chromium and mercury as
described later in this section. For the other UTS metal constituents
the Agency promulgated standards as proposed.
For four of these metals beryllium, thallium, vanadium and zinc,
the previous standards limited the metal at one level, which was
proposed and promulgated for UTS.
For four other metals, antimony, cadmium, nickel and silver, the
Agency proposed and promulgated the UTS level at the highest of the
previous standards. This occurred based on the best data for the most
difficult to treat wastes. Commenters did not submit new data
supporting lower limits for these constituents. While the limits for
some waste codes are raised, EPA considered the following factors:
(1) A broader assessment of the treatment data;
(2) Some of the low/previous metal standards simply reflected low
levels in the untreated wastes;
(3) Regulation of other metals for a waste code, namely those that
are present in significantly high concentrations, will control design
and operations of the treatment technology.
For the remaining four metals, arsenic, barium, lead and selenium,
the Agency did not propose or promulgate the UTS at the highest
previous standard. Commenters did not submit data on these metals. The
justification for rejecting lower levels are the same as those
presented for antimony, cadmium, nickel and silver in the preceeding
discussion. For these metals, EPA did not choose the highest previous
standard; rather, the standard for the most difficult to treat waste
was selected and it achieved a lower standard than the highest previous
standard.
In addition to the above consideration, the Agency considered
matrix effects. In setting the nonwastewater metal limits, EPA has
examined the most difficult to treat wastes; therefore, if a matrix
relationship exists, other wastes should more easily meet the limits.
If there exists a waste that can not meet the limits, the Agency has a
treatability variance process to address those instances. It appears
that HTMR is matrix independent, consistently achieving the same level
of treatment performance as measured in the residuals, regardless of
the influent matrix composition. With regard to matrix effects on
stabilization, adjustments to the type and quantity of stabilizing
agents can greatly compensate for matrix effects.
The UTS standard for chromium (Total) was proposed to be 0.33 mg/l
in the TCLP extract based upon the K061-HTMR treatment standard data.
One commenter (Occidental Chemical), objected to the proposed limits
and supplied stabilization data for chromium. They indicated through 85
data points that they could achieve a level of 0.58 mg/kg. The Agency
evaluated treatability data from various sources, including Occidental
Chemical and previously promulgated waste codes. These evaluations
compared analyses of performance data between untreated and treated
concentrations of metal waste. From this treatability data the Agency
selected the most difficult to treat waste. It was determined that the
waste criteria selected was submitted by Cyanokem for F006 during the
promulgation of the Third Third rule (June 1, 1990). This waste was a
composition of stripping liquids, plating operations, pelletizing
operations, and clean out wastes from plating tanks. The data sets
involving the most difficult to treat waste were used to calculate the
limit of 0.86 mg/l TCLP. The other data sets, including those from the
comments, generally achieved the 0.86 mg/l TCLP. The treatment results
that did not meet the levels may be due to treatment being designed to
only meet the characteristic levels. It is the Agency's belief that
with the use of a more effective stabilization process, a lower level
could be achieved, as demonstrated by the fact that a more difficult to
treat waste attained the level of 0.86 mg/l TCLP. Therefore, the Agency
is promulgating the treatment standard of 0.86 mg/l TCLP.
EPA proposed UTS for low mercury subcategory nonwastewaters
(containing less than 260 mg/kg total mercury) at 0.009 mg/l TCLP. Many
commenters expressed concern over this standard. EPA has reconsidered
the proposed UTS for mercury and is promulgating standards as follows:
0.200 mg/l TCLP for low subcategory retort residues, and 0.025 mg/l
TCLP for other low subcategory nonwastewaters. (The existing treatment
standard for high subcategory mercury nonwastewaters (concentration
greater than 260 mg/kg) is already RMERC, i.e., recovery of mercury by
retorting or roasting. This treatment standard is unaffected by today's
rule.) Comments and EPA's responses are summarized below.
Several commenters expressed the belief that the current treatment
standards for K106, D009, and K071 wastes should remain in effect.
These commenters submitted data from the analysis of retorted mercury
waste to support the claim that the proposed UTS for mercury is not
achievable by retorting, the recognized BDAT for K106 and D009 wastes.
These data consisted of total and TCLP analyses of 109 residue samples
from retorted K106 and D009 wastes. Although 23 of these samples
contained greater than 260 mg/kg total mercury and would therefore
require further retorting, of the remaining 86 samples, 18 contained
greater than 0.009 mg/l mercury by TCLP, the proposed UTS for mercury
nonwastewaters. All 86 samples contained less than 0.15 mg/l mercury by
TCLP. These data support the commenters' position that the proposed UTS
for mercury is not achievable by properly operated BDAT treatment
technology (e.g., RMERC).
Further examination of available data has convinced the Agency that
the proposed nonwastewater standard was too low. The basis for the
proposed UTS for metal nonwastewaters, which was data from the
treatment of K061 by high temperature metal recovery (HTMR), is not
appropriate for mercury wastes. K061 waste does not typically contain
large quantities of mercury and HTMR facilities do not accept wastes
containing high concentrations of mercury. EPA has therefore decided
not to promulgate the proposed nonwastewater standards, and instead to
apply the existing treatment standards for K071, K106, P065, P092, and
U151 as the UTS for mercury nonwastewaters. This is appropriate, since
mercury is the most significant constituent in these wastes, and BDAT
for these wastes is particularly directed to treating mercury. The
Agency continues to believe that the revised limits for mercury and 12
other metal constituents in K061 provide adequate assurance that BDAT
will occur for K061. Thus, the universal treatment standards for low
subcategory mercury wastes will be 0.20 mg/l mercury by TCLP for retort
residue nonwastewaters, and 0.025 mg/l mercury by TCLP for other low
subcategory nonwastewaters.
The following table is a compilation of the final metal universal
standards for nonwastewaters.

Universal Treatment Standards for Metal\1\ Hazardous Constituents
[Nonwastewaters]
------------------------------------------------------------------------
Maximum for
any single
Regulated constituent grab sample
TCLP (mg/l)
------------------------------------------------------------------------
Antimony................................................ 2.1
Arsenic................................................. 5.0
Barium.................................................. 7.6
Beryllium............................................... 0.014
Cadmium................................................. 0.19
Chromium (Total)........................................ 0.86
Lead.................................................... 0.37
Mercury--retort residues................................ 0.20
Mercury--not retort residues............................ 0.025
Nickel.................................................. 5.0
Selenium................................................ 0.16
Silver.................................................. 0.30
Thallium................................................ 0.078
Vanadium................................................ 0.23
Zinc.................................................... 5.3
------------------------------------------------------------------------
\1\Treatment standards for cyanide wastes are discussed in the next
preamble section.

b. Wastewaters

The metal UTS for wastewaters are based on chemical precipitation
as BDAT. Depending on the initial concentration of metal constituents
in the wastewater, operating conditions such as retention time,
flocculating agents, reagent concentrations such as iron to affect
solubility of other metals, and mixing may need to be adjusted to
comply with the standards.
The following table presents the UTS metal wastewater limits, and
the previous limits. Changes to the proposed metal standards occurred
in two areas: use of Office of Water Metal Finishing limits, and an
adjustment of the proposed vanadium limit. These changes are explained
following the table.

Comparison of UTS Wastewater Concentrations Versus Previous Standards for Metals
----------------------------------------------------------------------------------------------------------------
Previous standards
Final ----------------------------------------------------------------------------------
UTS Old
level Waste codes
----------------------------------------------------------------------------------------------------------------
Antimony............ 1.9 ........ K061
0.60 K021
1.9 F039
Arsenic............. 1.4 0.79 K031, K084, K101, K102, P010, P011, P012, P036, P038, U136
1.4 F039
K061
Barium.............. 1.2 1.2 F039, P013
K061
Beryllium........... 0.82 0.82 F039, K061
Cadmium............. 0.69 6.4 K028
0.20 F039
0.24 K101, K102
1.6 F006, K061, K069, K100
Chromium............ 2.77 0.32 F006, F007, F008, F009, F011, F012, F019, K015, K061, K062, K086, K100,
U032
0.2 F037, F038, K048, K049, K050, K051, K052
0.37 F039
0.9 K002, K003, K004, K005, K006, K007, K008
0.35 F024, K022, K028
Lead................ 0.69 0.040 F006, F007, F008, F009, F011, F012, K062, U144, U145, U146, P110
3.4 K002, K003, K004, K005, K006, K007, K008
0.17 K101, K102
0.28 F039
0.51 K061, K069, K100
0.037 K001, F037, F038, K028, K046, K048, K049, K050, K051, K052, K086, K087,
U051
Mercury............. 0.15 0.030 K071, K106, P065, P092, U151
0.082 K101, K102
0.15 F039
Nickel.............. 3.98 0.55 F039
0.44 F006, F007, F008, F009, F011, F012, K015, K061, K062, P074
0.32 P073
0.47 F024, K022, K028, K083, K115
Selenium............ 0.82 0.82 F039
1.0 P103, P114, U204, U205
Silver.............. 0.43 0.29 F039, P099, P104
Thallium............ 1.4 0.14 P113, P114, P115, U214, U215, U216, U217
1.4 F039
Vanadium............ 4.3 0.042 F039
28 P119, P120
Zinc................ 2.61 1.0 F039
----------------------------------------------------------------------------------------------------------------

In the proposal, EPA solicited comments on changing the limits for
cadmium, chromium, lead, nickel, silver, and zinc to those used in the
Office of Water's Metal Finishing Effluent Guidelines. These standards
represented a more comprehensive database, addressed many more
facilities, and represented the most difficult to treat waste. Although
none of the commenters submitted data, they (commenters) supported the
use of the Metal Finishing standards as the UTS wastewater treatment
numbers. We are adopting the metal wastewater limits used for the
Effluent Guidelines for the Metal Finishers Point Source category for
cadmium, chromium, lead, nickel, silver and zinc for the reasons
outlined above.
The Agency received comments, but no data, that the proposed
vanadium limit of 0.042 was unachievably low. At the proposed level,
vanadium would be the most stringent regulated metal. With little data
supporting the proposed level, the Agency tried to follow up with
commenters and other sources to obtain data. Wastewater with
significant vanadium is rare, and EPA's efforts yielded limited data
supporting a level of 4.3 mg/l. This level is within the range of other
metal limits, and is achievable, based on the data availability. While
the Agency would have preferred having more data for vanadium, the UTS
is set at 4.3 mg/l. If the few facilities that have significant
vanadium wastewaters can not meet this limit, EPA's treatability
variance process is available. Also, the Agency would be willing to
reassess this limit in a future rule, if data are submitted which
supports a change in this standard.
For all other metal wastewater UTS--antimony, arsenic, barium,
beryllium, mercury, selenium and thallium--EPA is promulgating limits
as proposed. The data used for UTS reflect, for each of these metals,
the best data available. With the possibility of more wastewaters being
treated to comply with LDR standards--particularly characteristic
wastewaters that heretofore have been decharacterized and whose
underlying hazardous constituents may not have been treated, EPA has
made a determined effort in this rulemaking to base treatment standards
on the best data available, which data reflects a wide variety of
wastewaters. Although the UTS are in some cases higher than existing
limits, EPA believes that these existing lower limits, in many cases,
reflected low levels of metals in untreated wastes. In addition,
wastewater standards, to date, have not had direct effect on many
wastes, because most hazardous wastewaters are either treated in tanks
and discharged, managed in Sec. 3005(j)(ii) impoundments, injected into
Class I hazardous deep wells which have received no-migration
variances, or decharacterized, and so are not subject to these lower
standards.
The following table is a compilation of final metal universal
treatment standards for wastewaters.

Universal Treatment Standards for Metal\1\ Hazardous Constituents
[Wastewaters]
------------------------------------------------------------------------
Maximum for
any single
Regulated constituent grab sample
(mg/l)
------------------------------------------------------------------------
Antimony................................................. 1.9
Arsenic.................................................. 1.4
Barium................................................... 1.2
Beryllium................................................ 0.82
Cadmium.................................................. 0.69
Chromium (Total)......................................... 2.77
Lead..................................................... 0.69
Mercury.................................................. 0.15
Nickel................................................... 3.98
Selenium................................................. 0.82
Silver................................................... 0.43
Thallium................................................. 1.4
Vanadium................................................. 4.3
Zinc..................................................... 2.61
------------------------------------------------------------------------
\1\Treatment standards for cyanide wastes are discussed in the next
preamble section.

6. Universal Treatment Standards for Cyanide Wastes
For the nonwastewater forms of cyanide wastes, EPA is promulgating
the UTS as proposed: 590 mg/kg (total cyanide) and 30 mg/kg (amenable
cyanide). For wastewaters, EPA is promulgating the UTS: 1.2 mg/l (total
cyanide) and 0.86 mg/l (amenable cyanide). These wastewater standards
differ from those that were proposed (see section b of the cyanide UTS
discussion below). The cyanide wastewater and nonwastewater UTS are
based on the treatment of wastewaters via alkaline chlorination.
EPA is also codifying in 40 CFR 268.40 that compliance with the
cyanide nonwastewater UTS requires the use of EPA SW-846, Test Methods
9010 and 9012, along with a specified sample size of 10 grams, and a
distillation time of 75 minutes. Most commenters, in particular those
from the hazardous waste treatment industry, welcomed and supported
this part of EPA's proposal. These kind of provisions eliminate
variabilities that can result from the analyses of different sample
sizes and distillation times. A detailed discussion of these treatment
standards follows.

a. Cyanide Nonwastewaters

EPA proposed three options for cyanide in nonwastewater forms (a
standard based on total and amenable cyanide concentrations, a standard
based on TCLP concentrations, and a standard that specifies treatment
methods) at 58 FR 48104. EPA is promulgating the first option.
EPA is discussing in this preamble only the major comments on the
first option. Please see the Response to Comments Document in the
docket for this rule for EPA's responses to all the comments received
on the proposed three options.
EPA requested comments on its rationale for setting a common
cyanide UTS for all nonwastewater forms of cyanide. Two primary issues
were emphasized in the proposal: (1) the establishment of a cyanide UTS
that is less stringent for wastes that contain little to no cyanide;
and, (2) standardized sample size and distillation time for compliance
monitoring.
EPA believes that by basing a universal treatment on the cyanide
matrix that is most difficult to treat, the universal treatment
standard will indeed be uniformly achievable. EPA has determined that
electroplating wastes with high concentrations of iron represent the
most difficult to treat of all the cyanide wastes. The available
performance data for treating electroplating wastes support the
establishment of a UTS of 590 mg/kg (total cyanide) and 30 mg/kg
(amenable cyanide).
EPA noted that although other cyanide wastes were required to meet
lower treatment standards, the establishment of this higher UTS was not
likely to discourage effective treatment of these other wastes.
Examples of the other wastes of concern include multi-source leachate,
pigments, petroleum, coking, ink solvents and organo-nitrogen wastes.
These wastes generally have very little cyanide in the untreated waste,
have cyanide along with organic constituents which are routinely
incinerated, or have cyanide in a free form which is easier to treat by
conventional treatment methods (alkaline chlorination). Because these
wastes are routinely treated by incineration or a cyanide destruction
technology, EPA believes further subcategorization of the cyanide UTS
standard is not warranted at this time. (Put another way, the Agency
does not believe as a practical matter that more cyanide will be land
disposed as a result of UTS, and therefore that the interest in
simplified standards warrants against further subcategorization of
cyanide wastes.)
The majority of the commenters supported EPA's proposed rationale
for developing a cyanide UTS and believe EPA's proposed approach is
appropriate for setting UTS. Two commenters, however, urged EPA to
withdraw the proposed UTS and to promulgate instead a lower cyanide
UTS, as described below.
The first commenter believes that EPA should set two categories of
cyanide UTS: (1) organic, which would include all those cyanide wastes
with regulated organics; and, (2) inorganic, which include all cyanide
wastes with regulated metals. For organics, they suggested a UTS of 30
mg/kg (total cyanide) and 1.8 mg/kg (amenable cyanide). For inorganics,
the commenter suggested a UTS of 400 mg/kg (total cyanide) based on
rejecting three data points used to calculate the 590 mg/kg limits.
The other commenter believes that it is inappropriate for EPA to
raise the standards for all nonwastewater forms of cyanide wastes. They
said that existing treatment technologies can treat cyanide wastes to
levels below the proposed UTS, and they asked EPA to promulgate lower
cyanide levels such as those promulgated for nonwastewater forms of
F011 and F012.
EPA is not persuaded by these comments. First, a separate lower
treatment standard for cyanide in organic wastes is currently
unnecessary because combustion of these wastes to comply with organic
treatment standards effectively destroys cyanides. Second, EPA believes
that the three data points queried in CyanoKem's comment are in fact
representative. None of these three data points fail a statistical
Outlier test. Furthermore, the description of the design and operating
conditions make it appear that treatment was conducted properly. Third,
the limit for F011 and F012 (which had a treatment standard for cyanide
below the UTS) has not been previously subject to the 1 hour and 15
minute distillation time and 10 gram sample requirements, which can
greatly influence results and are required conditions for the UTS.
CyanoKem's comment, in fact, amounts to a request that EPA reopen
the technology basis for the cyanide standard, an issue not opened for
public comment. The treatment standards for cyanide are based on
performance of alkaline chlorination technology. 54 FR at 26610-611
(June 23, 1989). CyanoKem has upgraded that technology with certain
proprietary modifications. 56 FR at 12355 (March 25, 1991). EPA has
already indicated that this adapted technology is not, and need not
serve as the basis for the treatment standard. Id.
In any case, EPA does not believe that this is an appropriate time
to undertake major changes to the cyanide standards. This is because
the cyanide analytic method, although improved by the changes in this
rule which are the best available at the present time, continues to
have shortcomings. EPA is working to develop a different analytic
method. It may be that after the new method is developed, further
investigation of cyanide standards will be warranted.

Universal Treatment Standards for Cyanide\1\
[Nonwastewaters]
------------------------------------------------------------------------
Maximum for
any single
Regulated constituent composite
sample (mg/
kg)
------------------------------------------------------------------------
Cyanide (Total)........................................... 590
Cyanide (Amenable)........................................ 30
------------------------------------------------------------------------
\1\Cyanide nonwastewaters are analyzed using SW-846 Method 9010 or 9012,
sample size 10 grams, distillation time, one hour and 15 minutes.

b. Cyanide Wastewaters

EPA is promulgating 1.2 mg/l (total cyanide) and 0.86 mg/l
(amenable cyanide) as UTS for wastewater forms of cyanide wastes. In
the proposed rule, EPA pointed out that a total cyanide concentration
of 1.9 mg/l, regardless of process waste type, is widely used in
wastewater discharge regulations--namely those for the Metal Finishing
Industry and the Organic Chemicals, Plastics and Synthetic Fibers
(OCPSF) Industry; however, the concentration of 1.9 mg/l was a
typographical error. The Agency intended to propose a concentration 1.2
mg/l of total cyanide. (The 1.2 mg/l level is supported by EPA's OCPSF
regulations and the background information in the record to the
proposed rule supporting the proposed total cyanide UTS applicable to
cyanide wastewaters.) The majority of commenters from the
pharmaceutical and waste treatment industry commented on the proposed
UTS cyanide for wastewaters assuming a standard of 1.2 mg/l total
cyanide level was proposed.
Commenters pointed out that the proposed level of 1.2 mg/l (total
cyanide) is not always applied to OCPSF discharges. EPA has authorized
permit writers or control authorities to exempt a source from OCPSF's
total cyanide (discharge) limit, and to establish a Best Professional
Judgement (``BPJ'') amenable cyanide limit. The BPJ limit must be based
on a determination that the cyanide limits are not achievable due to
elevated levels of non- amenable cyanide that result from the
unavoidable complexing of cyanide at the process source (40 CFR
414.11(g), 414.91, and 414.101). As with the CWA regulations, EPA
provides facilities with a RCRA treatability variance process in the 40
CFR 268.44 regulations that would allow a facility to achieve an
alternate treatment standard (see discussion of treatability variance
at section XII of this preamble). EPA believes that this provision
provides a mechanism for establishing an alternative cyanide limit for
OCPSF facilities in appropriate cases.
These commenters also reported that CWA regulations for the
Pharmaceutical Industry specify cyanide limitations as high as 33.5 mg/
l total cyanide. EPA looked into these concerns; in particular, whether
the proposed standard of 1.2 mg/l can be achieved universally.
Treatment performance data, however, were not submitted by the
commenters. Contrary to the commenters' arguments, the literature and
the performance data on cyanide treatment clearly show that cyanide
wastewaters are treatable to 1.2 mg/l total cyanide. While the CWA
cyanide limit is 33.5 mg/l for the pharmaceutical industry, that limit
was established in 1983 and is currently being investigated for
possible revision. Data were obtained from these ongoing efforts,
confirming that pharmaceutical wastes can achieve the 1.2 mg/l cyanide
level.
Other commenters emphasized that because EPA's proposed universal
wastewater standard of 1.2 mg/l total CN could not be routinely met by
cyanide destruction technologies available at their site, EPA should
only set a treatment level of 0.86 mg/l (amenable cyanide). Another
commenter added that in the Third Third rule (see 55 FR 22550-22553,
June 1, 1990), EPA already set a level of 0.86 mg/l for amenable
cyanide in characteristic wastewaters which is routinely met by their
modified wastewater treatment system. The proposed UTS treatment
standard of 0.86 mg/l (amenable cyanide) is based on the treatment of
complex-iron wastewaters from the electroplating industry by alkaline
chlorination (a cyanide destruction technology, and BDAT). The
commenter urged EPA to set this level as the sole cyanide UTS.
In the first place, the Agency views the issue of requiring
treatment for both total and amenable CN to be settled in past rules,
and did not intend to reopen it. See 54 FR at 26609 (June 23, 1989). If
further response is deemed necessary, EPA remains unpersuaded by these
arguments. Clean Water Act effluent limitations could technically be
met by adding ferro-sulfate or other sulfate reagents to wastewaters.
These chemical reagents do not destroy cyanides in the effluent
wastewater but instead, they leave behind iron-cyanide complexes or
thiocyanates. By requiring compliance for both amenable and total
cyanide, facilities must pursue treatment practices that can
effectively destroy cyanides. EPA is thus promulgating 1.2 mg/l (total
cyanide) and 0.86 mg/l (amenable cyanide) as UTS for wastewater forms
of cyanide wastes.
EPA had previously reserved the treatment standard for total
cyanide in wastewater forms of D003 reactive cyanide wastes. In today's
rule, EPA is applying the UTS of 1.2 mg/l to this waste. EPA sees no
reason that the limit is not generally achievable, and commenters
supplied no reasons.

Universal Treatment Standard for Cyanide
[Wastewaters]
------------------------------------------------------------------------
Maximum for
any single
Regulated constituent composite
sample (mg/l)

------------------------------------------------------------------------
Cyanide (Total).......................................... 1.2
Cyanide (Amenable)....................................... 0.86
------------------------------------------------------------------------

C. Consolidation of Equivalent Technology-Specific Combustion Standards

Another improvement to the existing Land Disposal Restrictions
program that is being made in today's rule is the simplification of two
equivalent technology-specific combustion standards in: Table 1--
Technology Codes and Description of Technology-Based Standards in 40
CFR 268.42. The Agency is consolidating the descriptions of INCIN
(incineration) and FSUBS (fuel substitution), by combining them into
one term, CMBST (combustion). The definition of CMBST, as stated in
Sec. 268.42 Table 1, is: ``combustion in incinerators, boilers, or
industrial furnaces operated in accordance with the applicable
requirements of 40 CFR part 264 subpart O, and part 266, subpart H.''
(Because the Part 265 interim status standards for incinerators are
largely nonsubstantive, EPA does not view facilities operating pursuant
to these standards to be performing BDAT treatment. This is not true of
boilers and industrial furnaces, where the interim status standards are
nearly as stringent as those for permitted units.)
This definition includes a specific reference to boilers and
industrial furnaces in order to clarify that combustion in these units
is (and always has been) allowed as a means of complying with FSUBS.
The Agency is also clarifying that any future regulations, such as
potential emission limits on metals or halogenated organic content,
established in part 264 subpart O, and part 266 subpart H, shall also
apply automatically to the standard of CMBST (or INCIN) in part 268.
The consolidation of INCIN with FSUBS to read CMBST does not represent
any change to the promulgated standards and additional notice and
comment was, therefore, not required.
All of the K-, U-, and P-listed wastes that have technology-
specific standards contain chemicals that are very difficult to
quantify in treatment residues. The chemicals representing the waste
codes for which the Agency has promulgated CMBST as a standard are, for
the most part, thermally labile and are expected to be destroyed
relatively easily in any type of combustion unit. EPA originally set up
the two separate standards of INCIN and FSUBS (Final Rule for Third
Third Wastes, June 1, 1990), because the Agency did not have in place
the operating requirements for boilers and industrial furnaces (i.e.,
the requirements for FSUBS). See 52 FR at 17021 (May 6, 1987). Because
these requirements have been promulgated (56 FR 7134 (February 21,
1991), both sets of standards should assure equally efficient
combustion of hazardous waste. For the same reason, there is no need to
distinguish between the types of units that are allowed to handle each
specific waste code. (EPA is, however, actively reviewing current
regulations for combustion units to assure the rules' protectiveness,
and may propose more stringent standards for such units. See EPA's
Draft Combustion Strategy of May 18, 1993).
As a result of today's action the standards for the following waste
codes are modified to read ``CMBST'':

(1) Two treatment subcategories of D001 wastes
(2) Six source-specific wastes listed in Sec. 261.32: K027, K039, K113,
K114, K115, K116
(3) Seventeen wastes listed in Sec. 261.33(e): P001, P003, P005, P009,
P040, P041, P043, P044, P062, P068, P081, P085, P088, P102, P105, P109,
P112
(4) Forty-one wastes listed in Sec. 261.33(f): U008, U016, U023, U053,
U055, U056, U057, U058, U064, U085, U086, U087, U089, U090, U094, U096,
U098, U099, U103, U109, U113, U122, U123, U124, U125, U126, U133, U147,
U154, U160, U166, U182, U186, U197, U201, U213, U221, U248, U328, U353,
U359

Other technology-specific standards and/or numerical standards that
have been promulgated for the above listed codes remain unchanged. In
particular, the promulgated standards of CHRED and CHOXD (i.e.,
chemical reduction and chemical oxidation) remain unchanged as
alternatives to CMBST for fourteen of the above U and P waste codes.
These standards were established because the chemicals represented by
these wastes hydrolyze relatively rapidly (i.e., react with water) and
both of the technologies represented by these standards are typically
performed under aqueous conditions. These waste codes include: P009,
P068, P081, P105, P112, U023, U086, U096, U098, U099, U103, U109, U133,
U160.
Today's rule does not affect the existing standards for waste codes
where INCIN was specified, but FSUBS was not. For those waste codes,
the standard remains identified as INCIN, rather than CMBST.
The Agency is further investigating potential modifications to the
presentation in 40 CFR 268.40 of all of the technology-specific
standards in order to simplify and clarify the promulgated treatment
standards, and may propose additional changes in the future.

D. Incorporation of Newly Listed Wastes Into Lab Packs and Changes to
Appendices

On June 1, 1990 (55 FR 22629), EPA promulgated alternative
treatment standards under 40 CFR 268.42(c) for waste codes listed in 40
CFR 268 Appendix IV and V that are placed in lab packs. These
alternative standards are legally constructed, in part, as ``specified
methods of treatment'' because of physical difficulties in measuring
compliance with numerical standards for these multi-coded waste forms
(i.e., compliance is complicated by the fact that many lab packs are
comprised of hundreds of small containers, each with different organic
or organo-metallic chemicals in them, making it difficult to accurately
sample treatment residues for those organics). In the January, 1991,
correction notice and again in the May 30, 1991, Advance Notice of
Proposed Rulemaking (56 FR 24453), the Agency requested comment on
potential improvements to these alternative standards.
EPA's original intent in establishing two separate appendices was
to distinguish between those lab packs containing organo-metallics
(Appendix IV) and those containing only organics (Appendix V). As such,
lab packs containing organo-metallics (Appendix IV) were expected to
need stabilization after performing the specified method of treatment,
INCIN (i.e., incineration), while Appendix V lab packs only needed to
be incinerated. However, under 40 CFR 268.42(c)(4), all treatment
residues of either type of lab pack also had to comply with the
standards for the extraction procedure (EP) for metals, i.e., D004,
D005, D006, D007, D008, D010, and D011. (D009 is not included in this
list because most mercury-bearing wastes were excluded from the use of
the alternative standards in both of these Appendices.) As such, if
metals were concentrated in the residues from the incineration of an
Appendix V lab pack and the resultant residues then exhibited one of
the characteristics for EP metals, these residues would also have had
to be stabilized to comply with the appropriate treatment standard for
metals. In such a case, there was no practical difference between
Appendix IV and Appendix V lab packs in terms of the treatment that was
needed.
The majority of the comments received from the regulated community
supported the Agency's proposed approach. In this final rule EPA is,
therefore, replacing Appendix IV and Appendix V with a new Appendix IV.
In order to simplify the new Appendix IV it only contains those wastes
excluded from lab packs. The following wastes are excluded from lab
packs (and appear in new Appendix IV) for the purpose of using the
alternative lab pack treatment standard in 40 CFR 268.42(c): D009,
F019, K003, K004, K005, K006, K062, K071, K100, K106, P010, P011, P012,
P076, P078, U134, U151.
In today's rule, EPA is also stating that the alternative treatment
standard for lab packs applies to the following additional waste codes
that were previously not included in Appendix IV or V: wastes for which
treatment standards were promulgated in the LDR Phase I rule August 1,
1992 (57 FR 37194), and wastes (including TC organic wastes) for which
treatment standards are promulgated in this final rule. Today's rule
does not list these as excluded waste codes in the new Appendix IV.
As a matter of clarification, the alternative treatment standard
for lab packs is INCIN. This required combustion technology combined
with the requirements of 40 CFR 268.42(c)(4) (ash residues are treated
to meet the characteristic metals treatment standards), will ensure
that all underlying hazardous constituents present in characteristic
wastes (other than those excluded in the new Appendix IV), will be
treated. The use of this alternative lab pack standard negates the
requirement to monitor for, or comply with, the UTS for underlying
hazardous organic constituents.
For reasons outlined in the June 1, 1990 final rule, mercury wastes
were excluded from this alternative standard for lab packs. Mercury is
considered a ``volatile metal'' which may lead to excessive air
emissions in some combustion devices when present in large quantities.
Mercury is also very difficult to stabilize if present in ash residues
in large quantities. Commenters did not provide any justifiable
technical reason for EPA to modify its position with respect to mercury
wastes, and thus these wastes shall remain excluded from this
alternative lab pack treatment standard.

E. Changes in the LDR Program in Response to the LDR Roundtable

EPA convened a roundtable meeting on January 12-14, 1993 to discuss
the LDR program. The purpose of the roundtable was for EPA to hear
suggestions on improvements to the LDR program from persons who
implement it. Participants included representatives of hazardous waste
generators, treaters, and disposers; public interest groups; state
environmental agencies; EPA regional offices; and other federal
agencies. EPA is today promulgating several recommendations made by
roundtable participants. The Agency is consolidating the three existing
treatment standard tables into one table, and is simplifying
notification requirements and reducing paperwork, as discussed below.
In addition, as discussed in an earlier section of this preamble, the
Agency is also promulgating universal treatment standards. Furthermore,
the Agency is committed to continue to identify ways the LDR program
can be simplified. Additional opportunities for such streamlining will
be explored in future LDR rulemakings.
1. Consolidated Treatment Table
Several of the groups present at the LDR roundtable expressed an
interest in having a consolidated treatment standard table in the
regulations. Participants stated that the existing system of three
separate tables at 40 CFR 268.41-268.43 was too complex and burdensome.
In its September 14, 1993 notice, EPA proposed a single consolidated
table of treatment standards. Comments on the table were favorable.
Today, EPA is replacing the three existing treatment standard
tables with the consolidated table, called ``Treatment Standards for
Hazardous Waste'' and placing it at Sec. 268.40 along with much of the
text found currently in Secs. 268.41-268.43. Section 268.42 continues
to describe the technology codes, to regulate California list PCBs and
HOCs, to set out exemptions from the required methods, and to provide
procedures for equivalency determinations. The numerical treatment
standards in the consolidated table are identical to the UTS
promulgated in today's rule with the exception of characteristic metal
wastes.
Reformatting Secs. 268.40-268.43 also corrects a confusing aspect
of the way the Code of Federal Regulations (CFR) has appeared for some
time. The ``No Land Disposal'' treatment standards that have appeared
at Sec. 268.43 will be deleted from the regulations and should no
longer appear in the CFR. These treatment standards have not been in
effect since 1990, when the LDR Third Third rule set treatment
standards for these wastes that were expressed as either methods of
treatment or numerical standards that now appear in the consolidated
treatment standard table Sec. 268.40. It was only a drafting oversight
that made these ``No Land Disposal'' standards continue to appear in
the regulations, and today's rule corrects this mistake.
2. Simplified LDR Notification Requirements
Comments on LDR notification requirements at the roundtable ranged
from suggestions that EPA should eliminate notifications altogether to
suggestions that EPA modify or delete data items on the notification.
In response, EPA proposed to eliminate the requirement at 40 CFR
268.7(a)(1)(ii) and at 268.9(d)(1) that the notification include
treatment standards or references to those standards. It was argued
that such a simplification makes particular sense in conjunction with
EPA's proposal to consolidate the treatment standard tables. Commenters
on this issue all supported this proposed simplification. EPA is thus
dropping the treatment standard or reference to the treatment standard
from the LDR notification in this final rule.
Today's action does not eliminate the existing requirement to
identify the constituents in F001-F005 spent solvent wastes, F039
wastes, or the underlying hazardous constituents in D001, D002, and in
TC organic wastes, unless the generator/treater is going to monitor for
all hazardous constituents in the waste. However, the regulatory
language is made clearer, and there is no longer any requirement that
the corresponding constituent level be included with the constituents
identified on the LDR notification for these wastes.

IV. Treatment Standards for Toxicity Characteristic Waste

A. Introduction--Content and Scope

EPA is promulgating treatment standards for the newly identified
toxicity characteristic (TC) organic wastes (D018-D043) as proposed.
These are identical to the UTS in today's rule. The UTS apply to the
underlying hazardous constituents in the TC waste as well as the
individual constituent responsible for the TC designation. Underlying
hazardous constituents are any constituents in Sec. 268.48 which are
reasonably expected to be present at levels above the UTS at the point
of generation of the TC waste. (See definition at Sec. 268.2(i).)
Although the intent of today's regulations is to require treating all
underlying hazardous constituents present plus the TC constituent,
today's rule calls for generators to monitor only the TC constituent
and those underlying hazardous constituents ``reasonably expected to be
present'' in their waste at its point of generation. Today's rule is
promulgating the compliance monitoring provisions that were proposed.
Section X of this preamble (Compliance Monitoring and Notification)
discusses them in detail.
Several commenters suggested that EPA promulgate alternative
standards of incineration (INCIN), fuel substitution (FSUBS) and
recovery of organics (RORGS) for these wastes. These commenters pointed
to the Interim Final Rule of May 24, 1993 (58 FR 29867) where EPA
extended the use of these methods of treatment to all D001 wastes
disposed outside CWA or CWA-equivalent impoundments or Safe Drinking
Water Act regulated Class I underground injection wells. EPA is not
adopting this approach in today's rule for TC organic wastes. First,
EPA does not believe that methods of treatment intended to address
organic constituents will always adequately address any underlying
metal constituents present in these wastes. In addition, the Agency has
not yet been able to completely evaluate the appropriateness of
requiring specified treatment technologies for TC wastes and other
wastes.
1. Waste Management Systems Affected by Today's Rule
In terms of waste management systems, today's rule applies to those
TC wastes which are managed in systems other than: (1) wastewater
treatment systems which include surface impoundments whose ultimate
discharge is subject to the Clean Water Act (CWA); (2) zero dischargers
who, before permanent land disposal of the wastewater, treat the
wastewaters in a CWA-equivalent wastewater treatment system; or, (3)
Class I underground injection wells subject to the Safe Drinking Water
Act (SDWA) Underground Injection Control (UIC) program. CWA-equivalent
treatment means biological treatment for organics, reduction of
hexavalent chromium, precipitation/sedimentation for metals, alkaline
chlorination or ferrous sulfate precipitation of cyanide (to the extent
these constituents are present in the untreated influent to wastewater
treatment systems), or treatment that the facility can show performs as
well or better than these enumerated technologies. See Sec. 268.37(a),
58 FR at 29885 (May 24, 1993). Organic TC wastes managed in these types
of systems will be regulated in the next LDR rule.
Additionally, ``decharacterizing'' the TC wastes regulated under
this rule by rendering them noncharacteristic does not remove them from
the scope of these regulations. Chemical Waste Management v. EPA, 976
F. 2d at 14-15. Consequently today's final rule will apply to some
injection practices, in particular, those involving Class V injection
wells. These typically are wells injecting nonhazardous wastes above or
into underground sources of drinking water. (If, however, the TC wastes
injected into non-Class I wells were to be treated by CWA-equivalent
means before injection, today's treatment standards would not apply.
This is an example of the type of zero discharger referred to above.)
2. Categories of TC Wastes Affected by Today's Rule
The following TC wastes are subject to UTS: (1) all wastes
identified as D018 through D043 (described in the proposed rule as
``new organic constituents); (2) D012 through D017 organic pesticide
wastes whose TCLP extract composition meets the concentration criteria
of 40 CFR 261.24, Table A but whose EP extract composition does not;
(3) D012 through D017 pesticide wastes whose TCLP extract composition
meets the concentration criteria of 40 CFR 261.24 Table A, as does the
EP extract composition, and (4) soil and debris contaminated with the
preceeding three sets of wastes. The first two categories are newly
identified wastes, i.e. wastes not yet identified as hazardous at the
time of the 1984 amendments and therefore not covered by the original
statutory schedule. (The March 29, 1990 rule extended the list of
chemicals defined as TC and changed the extraction step to a more
sensitive procedure which may potentially identify more pesticide
wastes than did the EP.) For soil contaminated with the TC wastes, the
variance process is available (see discussion in the Background section
of this rule under the heading ``E. Treatment Standards for Hazardous
Soil'').
As noted in the proposed rule, regulating land disposal of newly
identified TC wastes by addressing underlying hazardous constituents is
the same approach as EPA adopted in the recent interim final rule for
ignitable (D001) and corrosive (D002) characteristic wastes,
promulgated on May 10, 1993 (published on May 24, 1993, 58 FR 29860) in
response to the court's decision in Chemical Waste Management v. EPA,
976 F. 2d 2. That case vacated and remanded certain Agency regulations
(commonly referred to as the Third Third rule) establishing
prohibitions and treatment standards for characteristic wastes, and
also established rules as to when the prohibitions and standards would
not apply. A summary of the court's decision, an overview of the
interim final rule published on May 24, 1993, and a discussion of how
the Agency proposed to apply this approach to the TC wastes can be
found in the text of the proposed rule at 58 FR 48092.
Today's rule regulates underlying hazardous constituents in the
D018-D043 as well as in newly identified D012-D017 and in the rest of
the universe of D012-D017 wastes. (The definition of ``underlying
hazardous constituents'' is contained at 268.2(i) in this rule.) For
those D012-D017 nonwastewaters originally regulated in the Third Third
rule, today's rule changes the numerical value of the previously
applicable treatment standards to the UTS.
3. Soil Contaminated by Underground Storage Tanks
Soil which is contaminated with petroleum and is managed during
corrective action of releases from a RCRA Subtitle I underground
storage tank (UST) is not subject to the treatment standards
promulgated today for the TC organic wastes (D018-D043). Such soil that
fails the TC for one or more of the newly identified organic wastes
(D018-D043) has been temporarily deferred from regulation as a
hazardous waste (55 FR 26986). In addition, the Agency has proposed to
permanently exempt UST petroleum-contaminated soils from the TC rule
(58 FR 8504). However, any Subtitle I petroleum-contaminated soil
identified as D001 through D017 would not be subject to the deferral
and would be subject to all applicable RCRA land disposal restriction
requirements.
The Agency reminds the regulated community that any soil
contaminated by a release from a hazardous substance UST (Subtitle I)
as well as from all non-Subtitle I USTs (including petroleum tanks)
will continue to be subject to applicable RCRA hazardous waste
requirements, including the land disposal restrictions. Likewise,
petroleum-contaminated soils from non- UST sources that exhibit a
hazardous characteristic are also subject to applicable Subtitle C
requirements.
4. Metal TC Wastes Are Not Affected by Today's Rule
Today's rule does not affect TC metal wastes at all; this rule
leaves the Third Third final treatment standards (which apply to EP
metals) in place. Furthermore, today's rule does not affect the mineral
processing wastes which were formerly exempt from Subtitle C regulation
under the Bevill Amendment but which recently lost that exemption.
Included in that set of wastes are wastes from the remediation of
historic manufactured gas plant or coal gasification sites. EPA will
address TC metal wastes and the former Bevill mineral processing wastes
in a future rulemaking.

B. Background

1. Legal and Policy Basis for Today's TC Standards
Today's rule applies the UTS to underlying hazardous constituents
in D012-D043 wastewaters and nonwastewaters. Commenters' principal
objection to the proposed standards for TC wastes was that the
September 1992 Circuit Court decision did not authorize EPA to regulate
underlying hazardous constituents in TC wastes.
Most of these comments asserted that organic TC wastes were
fundamentally different from ignitable or corrosive wastes and
therefore EPA's decision to apply the standards promulgated in the May
24, 1993 Interim Final Rule for ignitable and corrosive wastes was
inappropriate. These commenters said that TC wastes were unlikely to
pose a threat to human health and the environment once treatment
removed the single constituent, partly because such treatment would
remove other similar hazardous components of the waste. None of these
commenters submitted process data demonstrating these claims. On the
other hand, some commenters argued that merely deactivating
characteristic wastes might well leave hazardous components intact.
The Agency is regulating in this rule underlying hazardous
constituents in TC wastes when they are managed in non-CWA/non-CWA
equivalent/non-Class I injection well waste management systems. If, as
commenters assert, treatment of the TC constituent effectively treats
underlying hazardous constituents, then regulating the underlying
hazardous constituent poses no further burden. Additionally, EPA
believes that the compliance monitoring provisions requiring the
generator to address only those underlying constituents ``reasonably
expected to be present in the wastes'' relieves generators and treaters
from an undue regulatory burden.
Several commenters objected that extending the requirement to treat
underlying hazardous constituents from ignitable and corrosive wastes,
as promulgated in the May 24, 1993 Interim Final Rule, to TC wastes was
unnecessary. The numerical treatment standard for the constituent
present at the TC level, the commenters reasoned, meets RCRA's section
3004(m) ``minimize threat'' requirement. EPA is not persuaded by such
reasoning. 55 FR 22542, 22652 (June 1, 1990); Chemical Waste
Management, 976 F.2d at 14; HWTC III, 886 F. 2d at 362. The TC level
identifies wastes that are clearly hazardous, and does not evaluate
presence of underlying hazardous constituents, non-groundwater exposure
pathways, or adverse environmental effects.
2. Ongoing Management Practices for TC Wastes
The proposed rule solicited comments and data on volumes of TC
wastes managed in Class V injection wells, and on waste management
practices employed prior to such injection. EPA received little
substantive comment and consequently has no basis for changing the
proposed approach.
The proposed rule also solicited information about industrial
generation patterns in order to allow the Agency to assess the
potential for source reduction or recycling for these TC wastes in
light of their wide diversity. However, EPA received no comments
describing current industry practices upon which the Agency could act.
The Agency is to consider opportunities for source reduction and
recycling of these wastes, and ways treatment standards could reflect
such types of waste minimization. The Agency notes that the subtitle C
rules generally, and the LDR rules in particular, have already resulted
in substantial volumes of hazardous waste no longer being generated,
because these rules impose waste management costs on hazardous waste
generators, and thus create a financial incentive to generate less
waste.
Finally, several commenters expressed concerns about achievability
of UTS for underlying hazardous constituents in complex matrices and
about the appropriateness of numerical standards based on incineration.
See the discussion of UTS in section III.A of this preamble for more
information on these comments.

C. Treatment Standards for New TC Organic Constituents (D018-D043)

1. Nonwastewaters
The Agency is also promulgating concentration-based treatment
standards for TC organic constituents in nonwastewaters, that are
identical to the levels promulgated as UTS in a separate section of
this preamble. These standards are based on treatment data that were
used to establish UTS for these same constituents in listed wastes.
These standards are primarily based on incineration data and are
presented at the end of this section.
EPA believes that a variety of treatment technologies, combustion
and non-combustion, can achieve these treatment standards. EPA
reiterates that any technology that does not constitute impermissible
dilution can be used to meet these concentration levels.

BDAT Standards for TC Organic Wastes
[Nonwastewaters]
------------------------------------------------------------------------
Maximum for
any single
grab
Code Regulated constituent sample.
Total
composition
(mg/kg)
------------------------------------------------------------------------
D018 Benzene........................................ 10
D019 Carbon tetrachloride........................... 6.0
D020 Chlordane...................................... 0.26
D021 Chlorobenzene.................................. 6.0
D022 Chloroform..................................... 6.0
D023 o-Cresol....................................... 5.6
D024 m-Cresol....................................... \1\5.6
D025 p-Cresol....................................... \1\5.6
D026 Cresol......................................... 5.6
D027 1,4-Dichlorobenzene............................ 6.0
D028 1,2-Dichloroethane............................. 6.0
D029 1,1-Dichloroethylene........................... 6.0
D030 2,4-Dinitrotoluene............................. 140
D031 Heptachlor..................................... 0.066
D031 Heptachlor epoxide............................. 0.066
D032 Hexachlorobenzene.............................. 10
D033 Hexachloro-1,3-butadiene....................... 5.6
D034 Hexachloroethane............................... 30
D035 Methyl ethyl ketone............................ 36
D036 Nitrobenzene................................... 14
D037 Pentachlorophenol.............................. 7.4
D038 Pyridine....................................... 16
D039 Tetrachloroethylene............................ 6.0
D040 Trichloroethylene.............................. 6.0
D041 2,4,5-Trichlorophenol.......................... 7.4
D042 2,4,6-Trichlorophenol.......................... 7.4
D043 Vinyl Chloride................................. 6.0
------------------------------------------------------------------------
\1\m- and p-cresol are regulated together as the sum of their
concentrations.

2. Wastewaters
The Agency is today promulgating concentration-based treatment
standards for the TC organic constituents in wastewaters, that are
identical to the levels promulgated as UTS in a separate part of
today's rule. These standards were based on existing treatment data
that were used to establish UTS for these same constituents in the
broad array of listed wastes. Today's standards are based on data
representing a variety of wastewater treatment units and are presented
at the end of this section.
These wastewater treatment standards apply to newly identified TC
wastewaters that are managed in systems other than those regulated
under the CWA, those regulated under the SDWA that inject TC
wastewaters into Class I injection wells, and those zero discharge
facilities that engage in CWA-equivalent treatment prior to land
disposal. The treatment standards promulgated today for newly
identified TC organic (D018-D043) wastewaters require treatment to meet
the UTS for the TC constituent and for the underlying hazardous
constituents in the TC waste as generated.

BDAT Standards for TC Organics
[Wastewaters]
------------------------------------------------------------------------
Maximum for
any single
grab
Constituent sample.
Total
composition
(mg/l)
------------------------------------------------------------------------
D018--Benzene.............................................. 0.14
D019--Carbon tetrachloride................................. 0.057
D020--Chlordane............................................ 0.0033
D021--Chlorobenzene........................................ 0.057
D022--Chloroform........................................... 0.046
D023--o-Cresol............................................. 0.11
D024--m-Cresol............................................. 0.77
D025--p-Cresol............................................. 0.77
D026--Cresol............................................... 0.88
D027--1,4-Dichlorobenzene.................................. 0.09
D028--1,2-Dichloroethane................................... 0.21
D029--1,1-Dichloroethylene................................. 0.025
D030--2,4-Dinitrotoluene................................... 0.32
D031--Heptachlor........................................... 0.0012
D031--Heptachlor epoxide................................... 0.016
D032--Hexachlorobenzene.................................... 0.055
D033--Hexachloro-1,3-butadiene............................. 0.055
D034--Hexachaloroethane.................................... 0.055
D035--Methyl ethyl ketone.................................. 0.28
D036--Nitrobenzene......................................... 0.068
D037--Pentachlorophenol.................................... 0.089
D038--Pyridine............................................. 0.014
D039--Tetrachloroethylene.................................. 0.056
D040--Trichloroethylene.................................... 0.054
D041--2,4,5-Trichlorophenol................................ 0.18
D042--2,4,6-Trichlorophenol................................ 0.035
D043--Vinyl Chloride....................................... 0.27
------------------------------------------------------------------------

3. Radioactive Mixed Waste
Radioactive mixed wastes are those wastes that satisfy the
definition of radioactive waste subject to the Atomic Energy Act (AEA)
that also contain waste that is either listed as a hazardous waste in
Subpart D of 40 CFR Part 261, or that exhibit any of the hazardous
waste characteristics identified in subpart C of 40 CFR Part 261. Since
the hazardous portions of the mixed waste are subject to RCRA, the land
disposal restrictions apply. This means that the RCRA hazardous portion
of all mixed waste must meet the appropriate treatment standards for
all applicable waste codes before land disposal. Therefore, any
radioactive waste mixed with organic TC wastes that are managed in non-
CWA/non-CWA-equivalent/non-Class I SDWA facilities must meet the
treatment standards being promulgated today for the TC wastes.
The standards that were proposed for the TC wastes were also
proposed for TC radioactive mixed wastes. Prior to this proposal,
however, the Department of Energy (DOE) had expressed some concerns
about meeting certain treatment standards and stated that they were
collecting data from their facilities on mixed TC wastes. EPA stated in
the proposed rule that, for the most part, the low concentrations of
radioactive compounds should not interfere with the treatability of the
hazardous constituents in the waste, and requested data on instances
when the radioactivity prevented the waste from meeting the LDR
treatment standard.
One commenter suggested that EPA postpone its decision on
appropriate methods for treating mixed waste until information
currently being collected profiling commercially generated low- level
radioactive mixed waste has been submitted and reviewed by EPA. This
commenter claimed that the results of this profile contradict EPA's
statement that radioactive material concentrations in mixed waste are
low and should not interfere with the treatment of the mixed waste.
Another commenter expressed the belief that the presence of radioactive
components within the limits of operator exposure and safety should not
interfere with the treatment of hazardous constituents in waste.
Neither commenter submitted any data or other supporting
information to substantiate their assertions regarding the treatability
of radioactive mixed waste; therefore, EPA has decided to promulgate
the standards for newly identified TC radioactive mixed wastes as
proposed. However, if data is submitted to EPA indicating that the
presence of radioactive components prevents a waste from meeting the
LDR treatment standards, the Agency will evaluate the data and amend
the standards as appropriate. The Agency's variance provisions of 40
CFR 268.44 can also be used to obtain alternate limits in the meantime.

D. Treatment Standards for Pesticide Wastes Exhibiting the Toxicity
Characteristic

D012--Endrin
D013--Lindane
D014--Methoxychlor
D015--Toxaphene
D016--2,4-D
D017--2,4,5-TP (Silvex)

The Agency is promulgating treatment standards for these wastes
essentially as proposed with the additional requirement that underlying
hazardous constituents be treated in nonwastewater forms of these
wastes. Today's standards apply to all D012-D017 wastes managed in non-
CWA/non-CWA-equivalent/non-Class I injection well waste management
facilities. These are the toxic pesticide wastes which are identified
as toxic following application of the TCLP. The TCLP is more sensitive
than the EP analysis, possibly bringing more wastes into the toxicity
characteristic category than did the EP.
1. Newly Identified Pesticide Nonwastewaters
EPA is today regulating newly identified D012-D017 nonwastewaters
plus D012-D017 nonwastewaters regulated earlier in the Third Third
rule. Treatment standards for both sets of D012-D017 nonwastewaters
include the UTS value for the TC constituents plus UTS values for
underlying hazardous constituents. The changes between the Third Third
standards and today's rule are that the numerical value of the
toxaphene nonwastewater standard rises from 1.3 to 2.6 and the standard
for D013, lindane, incorporates numbers for the four BHC isomers. (It
should be noted that EPA determined that the amount of D012-D017 waste
subject to the treatment standards is very small. 55 FR at 22634,
22646. Based on this determination, it is very unlikely that newly
identified D012-D017 are being generated.)
Today's rule also prohibits dilution of D012-D017 nonwastewaters
injected into Class I deep injection wells. Consequently, these
pesticide wastes must be treated to meet the treatment standards before
they can permissibly be injected into such units, unless that unit has
been granted a no-migration determination. Section VIII of this
preamble discusses this and other deepwell injection issues presented
in today's rule in more detail.

BDAT Standards for Pesticides
[Nonwastewaters]
------------------------------------------------------------------------
Maximum for
any single
grab
Code Regulated constituent sample.
Total
composition
(mg/kg)
------------------------------------------------------------------------
D012 Endrin......................................... 0.13
D012 Endrin aldehyde................................ 0.13
D013 alpha-BHC...................................... 0.066
D013 beta-BHC....................................... 0.066
D013 gamma-BHC...................................... 0.066
D013 delta-BHC...................................... 0.066
D014 Methoxychlor................................... 0.18
D015 Toxaphene...................................... 2.6
D016 2,4-D.......................................... 10
D017 2,4,5-TP (Silvex).............................. 7.9
------------------------------------------------------------------------

2. Pesticide Wastewaters
EPA set treatment standards expressed as required methods of
treatment for the EP toxic pesticide wastewaters in the Third Third
final rule (55 FR 22554). Today's rule extends these treatment
standards to those pesticide wastewaters covered in today's rule. (See
268.40)

E. Exemptions for De Minimis Losses of Commercial Chemical Product or
Chemical Intermediates That Exhibit the Toxicity Characteristic (TC),
and for TC Laboratory Wastes Discharged to CWA Wastewater Treatment
Systems

In the Interim Final Rule published May 24, 1993, EPA established
de minimis exemptions for commercial chemical product or chemical
intermediates that are ignitable or corrosive hazardous wastes and that
contained underlying hazardous constituents (58 FR 29875). The Agency
proposed in Phase II to extend the exemptions in 40 CFR 268.1 to
commercial chemical products or chemical intermediates that are TC
organic wastes when disposed (58 FR 48118). Commenters expressed
support for this approach.
This action is necessary to avoid situations where minor leaks of
organic TC commercial chemical products or chemical intermediates to a
wastewater treatment system would potentially trigger all of the
potential consequences of treating all underlying hazardous
constituents that might be in the waste. As EPA noted in originally
determining that the mixture rule should not apply in such situations,
such small losses are as a practical matter unavoidable; responsible
management involves channeling these minor losses to a centralized
wastewater treatment system. In addition, there is a natural incentive
to minimize the losses because the materials would otherwise be
commercial chemical products or intermediates (46 FR 56583, Nov. 17,
1981). Moreover, allowing de minimis losses of TC materials to trigger
all of the LDR treatment consequences would be anomalously stringent
because de minimis losses of listed wastes (i.e., the commercial
chemical products listed in Sec. 261.33), which tend to be more
concentrated (see generally 58 FR at 29875), would not be regulated
because of the exception to the mixture rule found at
Sec. 261.3(a)(iv)(D).
This same type of exception is needed for TC laboratory wastes that
are commingled with other plant wastewaters under designated
circumstances: TC laboratory wastes containing underlying hazardous
constituents from laboratory operations, that are mixed with other
plant wastewaters at facilities whose ultimate discharge is subject to
regulation under the CWA (including wastewaters at facilities which
have eliminated the discharge of wastewater), provided that the
annualized flow of laboratory wastewater into the facility's headwork
does not exceed one part per million (the same condition that applies
to the existing exemption in Sec. 261.3(a)(2)(iv)(E)).
Thus de minimis losses of commercial chemical product or chemical
intermediates that are TC organic wastes, and TC organic laboratory
wastes discharged to CWA wastewater treatment systems, are not subject
to the requirements of 40 CFR 268. De minimis losses are those
occurring from normal material handling, minor leaks of equipment tanks
or containers, and similar small but, for practical purposes,
unavoidable losses. See Sec. 261.3(a)(2)(iv)(D) and 268.1(e)(4) as
promulgated at 58 FR 29884 (May 24, 1993). The definition of de minimis
loss is the same as EPA used in the May 24, 1993 rule. This definition
mirrors the parallel language in Sec. 261.3(a)(iv)(D) except that it
also includes discharges from safety showers and rinsing and cleaning
of personal safety equipment and rinsate from empty containers or from
containers that are rendered empty by that rinsing. When the
Sec. 268.1(e)(4) definition was originally promulgated in the May 24,
1993 rule, it seemed unlikely that ignitable or corrosive wastes would
be generated from safety showers or rinsate. The Agency believes it is
more likely that TC wastes could be generated in such a manner,
therefore, the definition is being expanded to include this language in
this rule.
EPA also notes that the characteristic commercial chemical products
exempted under this rule and the May, 1993 rule are not limited to
products in which a particular chemical is ``the commercially pure
grade of the chemical, any technical grades of the chemical, and all
formulations in which the chemical is the sole active ingredient.''
(See Sec. 261.33(d) comment). Rather, the exemption extends to de
minimis losses (as defined) of in-process materials such as
intermediates and materials that would be products if they were not
inadvertently discarded. 55 FR at 2869 (Jan. 31, 1991). The citation in
the comment to Sec. 261.33(d), quoted above, is necessary to define the
scope of the listing, but as just explained, does not apply to losses
of characteristic materials.

V. Treatment Standards for Newly Listed Wastes

A. Treatment Standards for Coke By-product Production Wastes

K141--Process residues from the recovery of coal tar, including but
not limited to tar collecting sump residues from the production of
coke from coal or the recovery of coke by-products produced from
coal. This listing does not include K087, decanter tank tar sludge
from coking operations.
K142--Tar storage tank residues from the production of coke from
coal or the recovery of coke by-products produced from coal.
K143--Process residues from the recovery of light oil, including but
not limited to those generated in stills, decanters, and wash oil
recovery units from the recovery of coke by-products produced from
coal.
K144--Wastewater treatment sludges from light oil refining,
including but not limited to intercepting or contamination sump
sludges from the recovery of coke by-products produced from coal.
K145--Residues from naphthalene collection and recovery operations
from the recovery of coke by-products produced from coal.
K147--Tar storage tank residues from coal tar refining.
K148--Residues from coal tar distillation, including but not limited
to still bottoms.

EPA is promulgating the treatment standards that were proposed for
coke by-product production wastes. These treatment standards also apply
to soil and debris contaminated with these wastes, although a variance
process is available for such soils (see discussion on variances in the
Background section of this rule under the heading ``E. Treatment
Standards for Hazardous Soil''). The preamble of the proposed rule
describes the generation and characteristics of the newly listed wastes
in greater detail (58 FR 48119). Today's standards are concentration-
based limits for wastewaters and nonwastewaters, numerically identical
to the UTS promulgated elsewhere in this rule for the nine constituents
regulated in these wastes.
The American Coke and Coal Chemicals Institute requested that EPA
allow the use of these wastes as fuels in blast furnaces and other
applications where coke, coal and coal tar are used as fuels. The
commenters were requesting EPA to extend the existing recycling
exclusion--which allows these wastes to be combined with coal feedstock
residue as it is charged to the coke oven, added to the coal recovery
process or mixed with coal tar before this coal tar is sold as a
product or further refined. Extending this exclusion is beyond the
scope of this regulation; it was not included in the September proposal
as an option for managing these wastes. The Definition of Solid Waste
Task Force is examining the broad range of these types of issues.
The other comments received concerning the proposed treatment
standards for coke products' wastes came from the waste treatment
industry. Several waste treatment companies supported applying
universal standards to these waste streams and the UTS concept in
general. However, one commenter provided data in support of extending
the standards originally applied to K087 to these wastes. EPA evaluated
these data but found no reason not to apply UTS to these wastes. EPA's
evaluation of these data is presented in the Background Document for
these wastes. In separate comments, two waste treatment companies
objected to the benzene nonwastewater standards as unnecessarily high
and pointed out that their facilities could achieve benzene limits
below that proposed in the UTS. EPA does not believe these data really
reflect better treatment. Rather, the commenters appear to have
generated a waste matrix in which benzene is detectable at lower
levels. EPA is promulgating the benzene nonwastewater standard as
proposed, believing that it reflects an appropriate and broader
assessment of benzene detection limits in combustion residues.

BDAT Standards for K141, K142, K143, K144, K145, K147, and K148
[Nonwastewaters]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum Constituents regulated for waste codes
for any -----------------------------------------------------------------------------------
single grab
Constituent sample.
Total K141 K142 K143 K144 K145 K147 K148
composition
(mg/kg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benzene................................................ 10 X X X X X X ..........
Benz(a)anthracene...................................... 3.4 X X X X X X X
Benzo(a)pyrene......................................... 3.4 X X X X X X X
Benzo(b)fluoranthene................................... \1\6.8 X X X X .......... X X
Benzo(k)fluoranthene................................... \1\6.8 X X X X .......... X X
Chrysene............................................... 3.4 X X X X X X X
Dibenz(a,h)anthracene.................................. 8.2 X X .......... X X X X
Indeno(1,2,3-cd)pyrene................................. 3.4 X X .......... .......... .......... X X
Naphthalene............................................ 5.6 .......... .......... .......... .......... X .......... ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\This standard represents the sum of the concentrations for each of this pair of constituents.

BDAT Standards for K141, K142, K143, K144, K145, K147, and K148
[Wastewaters]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum Constituents regulated for waste codes
for any -----------------------------------------------------------------------------------
single grab
Constituent sample.
Total K141 K142 K143 K144 K145 K147 K148
composition
(mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benzene................................................ 0.14 X X X X X X ..........
Benz(a)anthracene...................................... 0.059 X X X X X X ..........
Benzo(a)pyrene......................................... 0.061 X X X X X X X
Benzo(b)fluoranthene................................... \1\0.11 X X X X .......... X X
Benzo(k)fluoranthene................................... \1\0.11 X X X X .......... X X
Chrysene............................................... 0.059 X X X X X X X
Dibenz(a,h)anthracene.................................. 0.055 X X .......... X X X X
Indeno(1,2,3-cd)pyrene................................. 0.0055 X X .......... .......... .......... X X
Naphthalene............................................ 0.059 .......... .......... .......... .......... X .......... ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\This standard represents the sum of the concentrations for each of this pair of constituents.

B. Treatment Standards for Chlorotoluenes

K149--Distillation bottoms from the production of alpha (methyl)
chlorinated toluenes, ring-chlorinated toluenes, benzoyl chlorides,
and compounds with mixtures of these functional groups. (This waste
does not include still bottoms from the distillation of benzyl
chloride.)
K150--Organic residuals, excluding spent carbon adsorbent, from the
spent chlorine gas and hydrochloric acid recovery processes
associated with the production of alpha (methyl) chlorinated
toluenes, ring-chlorinated toluenes, benzoyl chlorides, and
compounds with mixtures of these functional groups.
K151--Wastewater treatment sludges, excluding neutralization and
biological sludges, generated during the treatment of wastewaters
from the production of alpha (methyl) chlorinated toluenes, ring-
chlorinated toluenes, benzoyl chlorides and compounds with mixtures
of these functional groups.

EPA is promulgating the treatment standards that were proposed for
chlorotoluene wastes. The preamble of the proposed rule describes the
generation and characteristics in greater detail (58 FR 48121). Today's
standards are concentration-based limits for wastewaters and
nonwastewaters, numerically identical to the UTS promulgated elsewhere
in this rule for the thirteen constituents regulated in these wastes.
Comments received concerning the proposed treatment standards for
chlorotoluene wastes came from the waste treatment industry; they were
similar to those received concerning the treatment standards for coking
wastes. Several waste treatment companies supported applying universal
standards to these waste streams and the UTS concept in general. Two
waste treatment companies objected to the benzene nonwastewater
standards as unnecessarily high and pointed out that their facilities
could achieve benzene limits below that proposed in the UTS. EPA,
however, believes that the UTS for benzene nonwastewaters reflects an
appropriate and broad assessment of benzene detection levels in
combustion residues.

BDAT Standards for K149, K150, and K151
[Nonwastewaters]
------------------------------------------------------------------------
Maximum for Constituents regulated for waste
any single codes
grab -----------------------------------
Constituent sample.
Total
composition K149 K150 K151
(mg/kg)
------------------------------------------------------------------------
Benzene................ 10 .......... .......... X
Carbon tetrachloride... 6.0 .......... X X
Chloroform............. 6.0 X X X
Chloromethane.......... 30 X X ..........
Chlorobenzene.......... 6.0 X .......... ..........
1,4-Dichlorobenzene.... 6.0 X X ..........
Hexachlorobenzene...... 10 X X X
Pentachlorobenzene..... 10 X X X
1,2,4,5- 14 X X X
Tetrachlorobenzene.
1,1,2,2- 6.0 .......... X ..........
Tetrachloroethane.
Tetrachloroethylene.... 6.0 .......... X X
1,2,4-Trichlorobenzene. 19 .......... X ..........
Toluene................ 10 X .......... X
------------------------------------------------------------------------

BDAT Standards for K149, K150, and K151
[Wastewaters]
------------------------------------------------------------------------
Maximum for Constituents regulated for waste
any single codes
grab -----------------------------------
Constituent sample.
Total
composition K149 K150 K151
(mg/l)
------------------------------------------------------------------------
Benzene................ 0.14 .......... .......... X
Carbon tetrachloride... 0.057 .......... X X
Chloroform............. 0.046 X X X
Chloromethane.......... 0.19 X X ..........
Chlorobenzene.......... 0.057 X .......... ..........
1,4-Dichlorobenzene.... 0.090 X X ..........
Hexachlorobenzene...... 0.055 X X X
Pentachlorobenzene..... 0.055 X X X
1,2,4,5- 0.055 X X X
Tetrachlorobenzene.
1,1,2,2- 0.057 .......... X ..........
Tetrachloroethane.
Tetrachloroethylene.... 0.056 .......... X X
1,2,4-Trichlorobenzene. 0.055 .......... X ..........
Toluene................ 0.080 X .......... X
------------------------------------------------------------------------

VI. Debris Contaminated With Newly Listed or Identified Wastes

Debris contaminated with the hazardous wastes included in today's
rule must be treated prior to land disposal. The hazardous debris may
be treated to meet the treatment standards promulgated today for the
constituents which are contaminating the debris, or it may be treated
to meet the alternative debris standards promulgated in the LDR for
Newly Listed Wastes and Hazardous Debris (57 FR 37194, August 18,
1992).

A. Debris Treated To Meet the Phase II Treatment Standards

Debris that is treated to meet the treatment standards promulgated
in today's rule for newly listed wastes would remain subject to the
hazardous waste management regulations (subtitle C) for as long as the
debris ``contains'' the hazardous waste (see 57 FR 37625-26, August 18,
1992). On the other hand, debris that is treated to meet the treatment
standards promulgated in today's rule for newly identified TC organic
wastes, including any underlying hazardous constituents the generator
reasonably expects to be present in the waste, could be disposed in a
nonhazardous waste (subtitle D) landfill because the characteristic
identifying the waste as hazardous is removed through meeting the LDR
treatment standards.

B. Debris Treated To Meet the Alternative Debris Treatment Standards

The alternative treatment standards require the use of specific
technologies from one or more of the following categories: extraction
technologies, destruction technologies, or immobilization. Treatment
must be performed in accordance with specified performance standards
found in the regulations at 40 CFR 268.45. If one of the extraction or
destruction technologies is used, and the debris does not display any
characteristic of hazardous waste, then EPA would consider the treated
debris to no longer contain hazardous waste. Such treated debris could,
therefore, be reused, returned to the natural environment, or disposed
in a nonhazardous waste (subtitle D) facility. Nondebris residuals
generated from the treatment of debris contaminated with listed wastes
would still be hazardous wastes by virtue of the derived-from rule and
would be subject to the hazardous waste management system, including
the treatment standards for newly listed wastes in today's rule.

VII. Response to Comments Regarding Exclusion of Hazardous Debris That
Has Been Treated by Immobilization Technologies

A. Background

The final Phase I Land Disposal Restrictions (LDR) rule promulgated
on June 30, 1992 (57 FR 37194, August 18, 1992), excludes from Subtitle
C control hazardous debris that is treated using an extraction or
destruction technology provided the treated debris meets the
performance standards specified in Sec. 268.45 Table 1. Our basis for
doing this is that the debris no longer contains the hazardous waste.
On the other hand, hazardous debris treated by an immobilization
technology is still subject to the hazardous waste regulations because
the Agency has insufficient data or information to support that such
treated debris would not leach Appendix VIII constituents over time in
a manner that would be protective to human health and the environment.
In our proposal to the Phase I LDR rule, the Agency solicited comment
on whether immobilized hazardous debris should be excluded from
Subtitle C control. While the Agency received favorable comments on
excluding such treated debris from the hazardous waste regulations, no
information or data was provided to support such a position. Therefore,
the final rule requires that immobilized hazardous debris continue to
be managed as a hazardous waste.
The Agency decided to revisit the issue of whether immobilized
hazardous debris, if treated in certain ways or is treated to meet
certain limits, should be excluded from Subtitle C control. As a
result, since the promulgation of the Phase I LDR rule, the Agency has
undertaken a number of activities.

B. Roundtable Discussion

In an attempt to gather information on the issue, the Agency
sponsored a roundtable discussion on August 3, 1992. Participants at
the meeting included persons who commented on the Phase I LDR rule,
debris treatment vendors, hazardous waste treaters and disposers, state
officials, and officials from the Department of Energy (see Docket for
specific list of attendees). Representatives from the environmental
interest groups were also invited but were unable to attend. The
purpose of the meeting was to gather information and discuss various
regulatory approaches that would allow the Agency to exclude
immobilized hazardous debris from Subtitle C control. While no specific
data was gathered, there was a general discussion on the types of
standards that could be applied such as design and operating standards,
leach test, structural integrity test, permeability test for
encapsulating material, so as to exclude immobilized hazardous debris
from hazardous waste control. Additionally, the following points were
also made by one or more participants at the roundtable.
A number of the attendees indicated that even if
immobilized hazardous debris were excluded from hazardous waste
control, it would continue to be managed as a hazardous waste due to
CERCLA liability concerns.
There was some question whether a specific exclusion for
immobilized hazardous debris was necessary or whether the Hazardous
Waste Identification Rule (HWIR) may be a more appropriate mechanism
for addressing this issue.
A representative from the glass industry suggested that
glass cullet and vitreous materials should have a separate treatment
standard. He indicated that the glass matrix would not leach lead at a
higher rate than would an immobilized product--that is, it made little
sense to grind up the glass material and then to stabilize it when the
original matrix is just as sound.
While no consensus was reached, the following principles were
generally arrived at by most of the participants at the meeting.
Microencapsulation: Participants at the meeting seem to believe
that using a leach test may be more appropriate to demonstrate
effective microencapsulation immobilization over an approach of
developing design and operating standards. It was noted that treatment
of hazardous debris is very waste and debris specific; if one could
define design and operating standards that were generally applicable,
they would likely be too burdensome in many cases.
Macroencapsulation/Sealing: The participants seem to indicate that
the grinding requirement in the TCLP leach test made it inappropriate
for predicting performance of macroencapsulation/sealing immobilization
technologies. These technologies rely on an impermeable coating applied
to the outside of the debris. Rather, the participants suggested a
structural test to determine whether the given debris/technology
combination was sufficient to maintain the coating or a permeability
test for the coating media. While the participants conceptually
believed that such an approach was workable, no one was able to suggest
a specific test or standard. In addition, it was felt by some of the
participants that the development of such a test could be difficult to
develop.
While no data or information was provided at the meeting, it was
indicated that if such information was submitted to the Agency, the
Agency would consider such information in making its decision.

C. EPA Investigations

In addition to the above roundtable discussions, EPA has also been
reviewing the literature and talking to vendors in an effort to obtain
sufficient information on how to propose standards that could allow the
exclusion of immobilized hazardous debris. At the time the Phase II LDR
rule was proposed, no useful insights had been gained on how to specify
design and operating standards that would ensure that immobilized
hazardous debris was nonhazardous; the reason for this was the paucity
of experience in immobilizing hazardous debris. Nevertheless, the
Agency expressed interest in pursuing this area and specifically sought
assistance from the regulated community on this issue.

D. Specific Questions for Which Comments Were Solicited

While the Agency had a better sense of the types of standards that
may be appropriate for excluding immobilized hazardous debris from
Subtitle C control at the time of the Phase II proposal, the Agency
still did not have the data to propose specific exclusions. For
microencapsulation in particular, if a leach test were the most
appropriate mechanism for determining whether such treated debris is
nonhazardous, the Agency expressed the belief that HWIR may be the most
appropriate rulemaking to address this issue. The Agency had a series
of studies underway, was evaluating comments, but was not in a position
to determine what such levels were at that time. With respect to
macroencapsulation/sealing, additional data or information needed to be
gathered before the Agency would be in a position to exclude this type
of immobilized hazardous debris. To assist the Agency in this effort,
we specifically solicited comment on the following questions:
Microencapsulation:
Is the use of a leach test for excluding immobilized
hazardous debris more appropriate than specification of design and
operating standards?
Is exclusion of immobilized hazardous debris using design
and operating standards workable?
Macroencapsulation/Sealing:
What type of structural or other test could be used?
What type of criteria should be applied in determining
whether such debris is nonhazardous?
The Agency is also considering allowing stabilization for soils
containing low levels of organic constituents, and solicited comment on
whether similar stabilization techniques or tests to ensure the
effectiveness of such stabilization would be appropriate for excluding
debris from Subtitle C control.
In addition, the Agency specifically solicited comment on any
available data or information to demonstrate that immobilized hazardous
debris (if treated properly) would not pose a substantial hazard to
human health and the environment, stating that if such information were
submitted to the Agency, the Agency would exclude such debris from
Subtitle C control.

E. Comments Received and Conclusions

Microencapsulation: One commenter stated that specifying design and
operating standards is appropriate for excluding immobilized hazardous
debris from subtitle C, asserting that nothing is gained in performing
a leach test on hazardous debris. Other commenters suggested that EPA
consider a combination of a structural test combined with a leaching
test conducted on a representative intact sample of the encapsulated
waste. None of these commenters submitted any supporting information to
substantiate these conflicting claims. However, the commenters did
agree that if a leach test is used, the TCLP as it is now defined is
inappropriate for immobilized debris.
Macroencapsulation/Sealing: Several commenters claimed that the
TCLP test is inappropriate for immobilized material because the size
reduction required by the test protocol destroys the encapsulant,
thereby defeating the purpose of the technology. These commenters
suggested that EPA instead consider a combination of a structural test
(a 50 psi standard was suggested) combined with a leaching test
conducted on a representative intact sample of the encapsulated waste.
These commenters did not submit any data to verify that a 50 psi
standard would insure the integrity of the immobilized waste, and
although some commenters recommended that a new leach test protocol be
developed, they did not suggest any specific protocols for a leach test
on the intact debris waste.
Exclusion of Immobilized Debris from Subtitle C Regulation: Several
commenters maintained that debris treated with an immobilization
technology should be excluded from Subtitle C regulation. However,
these commenters did not submit any supporting data to verify this
claim.
Two commenters claimed that a careful reading of 40 CFR 268.7(b)
indicates that waste which is treated using a specified treatment
technology is not subject to further testing to exit Subtitle C and
claimed that the rules for debris treated in accordance with the
alternative treatment standards specified in 40 CFR 268.45 should be
the same. Their interpretation of this section of the CFR is incorrect.
With regard to wastes for which technologies have been specified as the
treatment standard, 40 CFR 268.7(b) contains the wording of the
certification stating that the waste has been treated in accordance
with Sec. 268.42; this certification must be signed before the waste
may be land disposed. 40 CFR 268.7(b) does not say that this waste is
no longer subject to subtitle C regulation.
One commenter suggested that, at a minimum, EPA should establish
health based numerical standards for exclusion of hazardous debris from
subtitle C. This commenter made no suggestion as to what test method
should be used. The issue of basing LDR standards on the basis of risk
rather than technology performance is addressed in Section III A 2 a of
this rule, ``Risk-based Universal Treatment Standards.''
Finally, one commenter suggested that EPA allow the use of
stainless steel as an encapsulant, claiming that its performance would
be superior to that of other encapsulants, such as polymeric organics,
which allegedly fail due to the radiation effects to their chemical
bonds.
Conclusions: Although commenters were in general agreement on a
number of issues (e.g. inappropriateness of the TCLP for debris, use of
a 50 psi structural test as a performance standard, use of a leach test
performed on intact debris), no supporting data or other information
was submitted to support their claims and requests. Therefore, the
Agency is not promulgating any modifications to the debris rule at this
time. The Agency is evaluating exclusions as part of the HWIR process
and will reassess appropriate action on debris if HWIR does not
adequately address debris.

VIII. Deep Well Injection Issues

A. Prohibition of Dilution of High TOC Ignitable and of TC Pesticide
Wastes Injected Into Class I Deep Wells

Today's rule prohibits the disposal of two types of waste into
deep-well injection via Class I Underground Injection Control (UIC)
wells unless the wastes first meet the land disposal restrictions
promulgated in today's rule for these wastes, or the wastes are
injected into a well that is subject to a no-migration determination.
These wastes are nonwastewaters exhibiting the characteristic of
ignitability at the point of generation and containing greater than 10
percent Total Organic Carbon (``high TOC ignitable liquids
subcategory'') and also TC toxic halogenated pesticide wastes (DO12-
D017). Thus, EPA is promulgating, as proposed, regulations excluding
these two wastes from the portion of the rule at 40 CFR 268.1(c)(3)
that allows a waste to be injected into a Class I deep injection well
if the waste no longer exhibits a characteristic at the point of
injection. Today's rule also includes a one-year capacity variance for
these injected waste streams.
For D001 High TOC ignitables, the treatment standard is expressed
as methods of treatment that must be used prior to land disposal:
combustion (i.e. incineration or fuel substitution) or recovery of
organics. The preamble to the proposed rule stated that high TOC
ignitable nonwastewaters contain high concentrations of organics that
can either be recovered directly for reuse, or can be burned in
combustion devices. These wastes are not injected in significant
volumes, so that redirection of the wastes to treatment technologies
will not have significant impact on well operators. 58 FR 48118-48119.
EPA received no information to the contrary from commenters.
The treatment standards for TC pesticide wastewaters are also
expressed as methods of treatment: biodegradation or incineration. On
the other hand, the treatment standards for EP pesticide nonwastewaters
are expressed as levels that may be achieved by using any treatment
technology, other than impermissible dilution. (The Third Third rule
had already disqualified these wastes from the exception that allowed
dilution of characteristic wastes that were to be managed in Clean
Water Act treatment systems including surface land disposal units,
Sec. 268.3(b) and 55 FR 22657.)
As discussed at length in the preamble to the proposed rule, the
Agency's initial reading of the D.C. Circuit Court's decision is that
wastes that are characteristically hazardous at the point of generation
must typically be treated to destroy or remove hazardous constituents
before land disposal, or be disposed of in a no-migration unit. 976
F.2d at 24. This is certainly a permissible interpretation of the
opinion. Furthermore, the decision encompasses underground injection
wells, specifically Class I deep wells, since they are permanent land
disposal units. 976 F.2d at 25. Thus, under this reading of the court's
opinion, these ignitable and pesticide wastes would have to be treated
to remove hazardous constituents before injection.
EPA's decision to prohibit injection of these untreated wastes,
however, is based not only on its initial interpretation of the
Chemical Waste Management opinion (which, as noted below, may still
evolve), but also on the particular wastes involved here. The wastes at
issue are ignitable wastes with potentially very high concentrations of
hazardous constituents, and pesticide wastes containing very toxic
constituents.
Treatment is also warranted to reduce the amounts of these toxic
wastes being land disposed. RCRA section 1003(a)(6) (``statutory goal
of minimizing the . . . land disposal of hazardous waste by encouraging
. . . properly conducted recycling and reuse, and treatment''); Steel
Manufacturers' Association v. EPA, ______ F.3d ______, (D.C. Cir. July
9, 1994) (``We conclude that minimizing the overall volume of slag that
is to be disposed is by itself, a sufficient justification for the zinc
treatment standard . . .'') (slip op. at 13). Finally, only small
volumes of these wastes are injected, and segregation of the wastes
should not prove to be unduly difficult. For all of these reasons, the
Agency believes it appropriate to prohibit injection of these wastes at
this time, unless the wastes are treated to satisfy section 3004(m) or
are disposed in a no-migration unit. In this regard, the Agency
emphasizes that no-migration petitions for Class I nonhazardous wells
receiving decharacterized wastes may be submitted to EPA or the
Authorized States for evaluation at this time. The petitions may
encompass not only the pesticide and high-TOC ignitable wastes
prohibited in this rule, but other types of decharacterized wastes
(which are not yet prohibited but are scheduled to be addressed in
Phase III) as well.
Most comments to the proposed rule requested independent
consideration of Class I injection wells, because they believed that
underground injection differs from other forms of land disposal, such
as landfills and impoundments. Other comments questioned EPA's
interpretation of the Third Third court decision and the Agency's
belief that treatment of these waste streams should be the preferred
management approach for them. These commenters indicated that
aggregation of waste streams meets the minimize threat standard and
expressed their opinion that segregation of these wastes for treatment
poses substantial risks to the environment and that underground
injection is an inherently safer waste management practice. The Agency
intends to consider all the above arguments (e.g., risks posed by
wastes going to deep well injection) in the identification of
alternatives for land disposal standards. The Agency will continue to
investigate any and all information received concerning these comments,
and intends to address land disposal standards for underground
injection of characteristic wastes in a comprehensive manner in the
Phase III rulemaking. Until these treatment standards become effective
one year from the date of publication of this rule, they may continue
to be injected into Class I injection wells without prior treatment.

B. Request for Comment on Petition From Chemical Manufacturer's
Association Regarding Deep Well Injection of Ignitable and Corrosive
Characteristic Wastes

The proposed rule solicited comments on a request from the Chemical
Manufacturer's Association (CMA) that EPA develop separate treatment
standards intended for those wastes disposed in Class I deep injection
wells. CMA requested a separate set of treatment standards for
ignitable and corrosive wastes managed by deep well injection that, in
view of the unique circumstances of deep well injection, meet the
statutory ``minimize threats'' standard. Many comments received by EPA
urged the Agency to develop so-called UIC-specific treatment standards
in light of this petition. However, EPA received virtually no technical
information to support these comments.
Therefore, the Agency is not issuing a final response to CMA's
request in today's rule. EPA continues to solicit information necessary
to enable EPA to act on this petition in the future. These requests are
documented in the rulemaking docket for today's rule. In particular,
the Agency particularly requests data concerning waste volumes, waste
transport, injection system integrity or the fate of disposed
pollutants throughout the course of the injection procedure.

IX. Modifications to Hazardous Waste Recycling Regulations

A. Introduction

Today's rulemaking finalizes the proposed changes to the hazardous
waste recycling regulations, thus slightly broadening the scope of an
existing exclusion (and related variance). This modification of the
regulatory framework will allow for environmentally beneficial
recycling to occur without unnecessary regulatory consequences.
EPA wishes to note that the changes to the definition of solid
waste being promulgated today are narrow in scope and will have minor
impact. A more broad-ranged evaluation of the regulations applicable to
the recycling of hazardous waste is being conducted by EPA's Definition
of Solid Waste Task Force. This Task Force has been administering a
public dialogue process to examine the overall impacts of the RCRA
program on recycling, and will consider broader changes to the
definition of solid waste as part of that process.

B. Modification of the Existing ``Closed-loop'' Recycling Exclusion and
Related Case-specific Variance

1. ``Closed-loop'' Recycling Exclusion and Related Variance
In the January 4, 1985 final rule, the Agency promulgated an
exclusion from the definition of solid waste at Sec. 261.2(e)(1)(iii)
for secondary materials that are recycled in a ``closed-loop,'' (i.e.,
returned to the original production process in which the material was
generated (see preamble discussion at 50 FR 639)). To be considered
such a ``closed-loop'' process, three conditions must be met. First,
the secondary material must be returned to the original process without
undergoing significant alteration or reprocessing (i.e., it must be
returned without first being reclaimed. See 261.2(e)(3) and Table 1).
Second, the production process to which the unreclaimed materials is
returned must be a primary production process (i.e., a process that
uses raw materials as the majority of its feedstock, as opposed to a
secondary process that uses spent materials or scrap metal as the
majority of its feedstock). And third, the secondary material must be
returned as a feedstock to the original production process and must be
recycled as part of that process (as opposed to an ancillary process
such as degreasing). EPA believes that these conditions characterize a
material that is part of an on-going production process, and as such,
the management of the material should not be characterized as waste
management (i.e., the material is not part of the waste management
problem).
Today's action addresses the second condition--that the production
process to which a secondary material is returned be a primary process.
This condition was part of the original exclusion due to considerations
regarding jurisdiction, as it was understood in 1985, rather than to an
evaluation of the potential impacts on the environment from such
``closed-loop'' recycling involving secondary processes. This condition
thus was established without a consideration of whether such secondary
materials would be part of the waste management problem. By definition,
a secondary process uses waste materials as its principal feedstock.
The Agency therefore concluded that the process residue, which is
returned to the original process as a substitute for feedstock that is
itself waste, is no less a waste than the waste material originally
introduced (see 50 FR 639). (The Agency notes that with few exceptions,
this condition has no actual impact on the recycling of residues from
secondary processes because such residues that exhibit a characteristic
of hazardous waste (i.e., characteristic by-products and sludges) are
likewise excluded from the definition of solid waste if reclaimed.)
Although the Agency continues to believe that the jurisdictional
logic behind this condition is sound, the judicial opinions regarding
RCRA jurisdiction allow more weight to be given to environmental
considerations. API v. EPA (API), 906 F.2d at 740-41; AMC v. EPA (AMC
II), 907 F.2d 1179, 1186 (D.C. Cir. 1990). Thus, EPA has reevaluated
this condition of the exclusion from the definition of solid waste due
to its impact on the recycling of residues from secondary processes, in
particular secondary lead smelters, and has determined that the
condition of a closed-loop involving only primary processes is not
legally compelled, and that this condition is less relevant as an
environmental consideration, assuming that the secondary material is
well-managed prior to reprocessing in the primary or secondary process
that generated it.
Comments received on the Agency's proposal to remove this condition
from the exclusion were favorable. Although several commenters said
that the Agency should go further in modifying the existing regulations
to encourage the recycling of hazardous wastes, such an action is
beyond the scope of this proceeding. Such further action could result
from the efforts currently underway to reevaluate the regulations
applicable to hazardous waste recycling (i.e., the Roundtable
discussions undertaken by the Definition of Solid Waste Task Force).
One commenter also urged the Agency to make regulatory modifications
only as part of the Definition of Solid Waste Task Force. EPA does not
view the salutary and relatively modest change to the rules promulgated
here as undermining the Task Force effort, and so is adopting the
amendment.
Thus, the Agency is today removing this condition (i.e., that the
process be a primary production process) from the ``closed-loop''
recycling exclusion. By doing this, secondary materials that are
recycled back into the secondary production process from which they
were generated are excluded from the definition of solid waste.
Following the same reasoning, the Agency proposed and is today
finalizing a modification to section 260.30(b), a related case-by-case
variance for materials that are reclaimed prior to reuse in the
original primary production process from which they were generated (see
50 FR 652 (January 4, 1985) for a discussion of the existing variance).
This modification similarly expands the variance to make it available
for materials that are returned to secondary processes, as well as
those returned to primary processes.
2. Storage Prior to Recycling
At proposal, the Agency proposed to condition the ``closed-loop''
exclusion (and the related 260.30(b) variance) such that secondary
materials recycled back into secondary processes from which they were
generated would continue to be managed in an environmentally sound
manner. The Agency proposed this condition to address concerns that,
absent this condition, a listed waste that would otherwise be required
to be managed in a protective manner (e.g., without direct placement on
the land) could begin to be managed in an unprotective manner because,
as an excluded secondary material, no regulatory requirements would
apply. Storage of hazardous secondary materials on the land can be
deemed to be a type of discarding (``part of the waste disposal
problem'' in the words of the D.C. Circuit), and hence provide a basis
for classifying the materials as solid and hazardous wastes. AMC II,
907 F.2d at 1187. The only comments received addressing this proposed
condition asked for more clarification of what would be considered ``a
protective manner.'' The Agency is promulgating the condition to the
exclusion that such secondary materials be managed in a protective
manner such that there is no placement on the land, that is no land
disposal as defined in Sec. 3004(k). See Sec. 261.4(a)(10) and (11)
where EPA has attached this same condition to comparable exclusions.
Management that is designed to contain the material or otherwise
prevent its release to the environment, such as in a containment
building (see 40 CFR 264.1100) or tank, is permissible. The Agency
believes that this condition will not require any changes in how these
secondary materials are currently managed and will ensure that
providing regulatory relief will not unintentionally increase risk to
human health and the environment.
Additional changes were proposed and are being promulgated in this
rule in order to implement and be consistent with the changes in
variances discussed above. Previously the Regional Administrator
granted variances from classification as a solid waste in 40 CFR
260.30, 260.31, 260.32, and 260.33. Today's rule transfers this
authority to grant variances from the Regional Administrator to the
Administrator. The changes in Secs. 260.30 and 260.31 are necessary
because such variances involve determining RCRA jurisdiction over
secondary materials going to secondary processes. The other changes in
authority to grant variances in Secs. 260.32 and 260.33 are being made
in order to be consistent with the provisions of Secs. 260.30 and
260.31.

X. Compliance Monitoring and Notification

A. Compliance Monitoring

As proposed, the Agency is adopting an approach that will allow
generators and facilities that manage organic toxicity characteristic
(TC) wastes in systems other than those regulated under the Clean Water
Act (CWA), those engaged in CWA-equivalent treatment prior to land
disposal, and those injecting into Class I deep injection wells, to
monitor or otherwise determine the presence of underlying hazardous
constituents ``reasonably expected to be present'' in their waste. (See
definition at 268.2(i).) This means that regulated entities do not have
to ascertain the presence of all hazardous constituents for which EPA
is promulgating a universal treatment standard. Generators may base
this determination on their knowledge of the raw materials they use,
the process they operate, and the potential reaction products of the
process, or upon the results of a one-time analysis for the entire list
of constituents at Sec. 268.48.
The Agency solicited comment on whether generators should be
required to do some testing of organic TC wastes to determine what
underlying hazardous constituents are present and whether they meet
UTS. Furthermore, the Agency noted that generators who also treat
(including generators who decharacterize their waste but do not treat
for underlying hazardous constituents) are classified as treaters, and
would therefore be required to do some analysis of their wastes
pursuant to Sec. 268.7(b) and prepare a treater's certification
pursuant to Sec. 268.9(d) (58 FR 48134). A few commenters believed that
generators should have to test their organic TC wastes at least once.
Most commenters on this issue, however, strongly opposed a generator
testing requirement and said that generators should be allowed to use
knowledge of their wastes to make such a determination. Based on these
comments, and the Agency's reluctance to require generator testing of
characteristic wastes but not listed wastes, the Agency is not imposing
a testing requirement on generators of organic TC wastes at this time.
The Agency believes, however, that certifications should identify
which hazardous constituents may be present in the waste. This is
necessary in order that there be some record that the waste indeed
requires treatment of these constituents before it can be land
disposed. As explained below, existing regulations already require
mention of the presence of underlying hazardous constituents in some
situations. EPA is slightly amending those regulations today to make
the requirement uniform, as discussed below.
If a generator does not treat a prohibited characteristic waste,
then the generator must prepare the standard notification and
certification required by Sec. 268.7(a)(1) (for wastes that have not
been treated to meet the treatment standard) (see Sec. 268.9(d), first
clause). These requirements explicitly require mention of underlying
hazardous constituents (Sec. 268.7(a)(1)(ii)).
If a generator partially treats a waste, however, for example by
decharacterizing it but not treating the underlying hazardous
constituents, there is a slight gap in the existing rules. Those rules
require that a one-time notification and certification be prepared
(Sec. 268.9(d)) and that the certification ``must state the language
found in 268.7(b)(5)'' (Sec. 268.9(d)(2)). The Sec. 268.7(b)(5)
certifications, however, do not contemplate the possibility that wastes
may require additional treatment for underlying hazardous constituents.
To allow for this possibility, EPA is amending Sec. 268.9(d) to state
that in the event underlying hazardous constituents in a
decharacterized waste have not been fully treated, the certification
shall so state. EPA is also adding the following new certification to
Sec. 268.7(b)(5) to account for this circumstance:

I certify under penalty of law that the waste has been treated
in accordance with the requirements of 40 CFR 268.40 to remove the
hazardous toxicity characteristic or the characteristics of
ignitability and corrosivity. This decharacterized waste contains
underlying hazardous constituents that require further treatment to
meet universal treatment standards. I am aware that there are
significant penalties for submitting a false certification,
including the possibility of fine and imprisonment.

The Agency proposed, alternatively, that generators could be
required to certify what underlying hazardous constituents are in the
organic TC waste and whether they meet treatment standards, in a manner
similar to the existing certification requirement for generators of
wastes that meet the treatment standards as generated (see 40 CFR
268.7(a)(2)(ii)) (58 FR 48134). This suggestion was generally not
supported by commenters, and EPA is not adopting this approach in this
final rule. Before considering broader changes, EPA will see if the
amended requirement in Sec. 268.9(d)(2)(i) discussed above is
sufficient to create an adequate record.

B. LDR Notification

1. Constituents To Be Included on the LDR Notification
EPA solicited comment on how to limit the underlying hazardous
constituents that must be monitored in organic TC wastes, and
consequently reported on the LDR notification. Commenters on this issue
said that the regulated community should only be required to address
those constituents which are in the organic TC wastes as generated,
prior to any subsequent mixing with other wastes. This is the approach
being adopted in this rule. Such an approach is identical to the
approach adopted in the May 24, 1993 Interim Final Rule (58 FR 29873)
and is supported by commenters.
As a simplifying measure, EPA is also slightly amending the
language of Sec. 268.7(a)(1)(ii) and Sec. 268.7(b)(4)(ii). The language
in these paragraphs required that the hazardous constituents in F001-
F005 spent solvents, F039, wastes subject to the California list
provisions of Sec. 268.32 or RCRA section 3004(d), and underlying
hazardous constituents in characteristic wastes be listed on the LDR
notification. This language is being changed so that if all the
hazardous constituents are present in the waste (and thus the
generator/treater will be treating all the constituents), then there is
no longer a need to list all the constituents on the notification form.
If, however, a subset of constituents are present in the waste (and
thus the generator/treater will only be treating these constituents),
the constituents in the waste must continue to be listed on the
notification form.
2. Management in Subtitle C-Regulated Facilities
The Agency has information that many of the organic TC wastes that
are not managed in CWA, or SDWA systems are being treated in hazardous
waste management units (primarily incinerators) subject to RCRA
subtitle C. In such a case, the notification, certification, and
recordkeeping requirements set out in 40 CFR 268.7 apply (which
includes identification of the underlying hazardous constituents
reasonably expected to be present in the organic TC waste). For organic
TC wastes, once the waste is no longer hazardous, however, further
recordkeeping and documentation requirements are set out in 40 CFR
268.9. Section 268.9 requires that the generator or treater (including
generators who treat, see 51 FR 40598, November 7, 1986) prepare a one-
time notification which is sent to the EPA Region or authorized state
and also kept in the generator's or treater's files. Treaters must
certify that they are familiar with the treatment process used at their
facility and that the process can successfully treat the waste to meet
the treatment standards without impermissible dilution. See
Sec. 268.7(b)(5), which applies to persons who treat formerly
characteristic wastes (see existing Sec. 268.9(d)(2)). The Agency
believes that, normally, at least some waste analysis is needed to make
a good faith showing for meeting the treatment standards, given the
number of hazardous constituents that could be covered by those
standards.
3. Potential Management of Decharacterized Wastes at a Subtitle D Waste
Management Facility
The Agency solicited information on certain potential waste
management practices for decharacterized TC wastes to help determine
whether new notification requirements are needed. In particular, EPA
requested whether generators or treaters, after removing the
characteristic, send the decharacterized TC waste off-site to a
Subtitle D (nonhazardous waste) treatment facility for further
treatment to address the underlying hazardous constituents (58 FR
48134). The Agency solicited comment on potential enforcement concerns
if there is not a federal requirement that generators notify Subtitle D
treatment and disposal facilities receiving decharacterized wastes.
One commenter stated that the generator of the waste should be made
responsible through an EPA mandate to assure that treatment of
underlying hazardous constituents at a subtitle D facility meets LDR
treatment standards. Other commenters thought that the generator should
notify the subtitle D facility of the underlying hazardous
constituents, but they did not specify that a mandated notification
should be required. However, other commenters said that existing
arrangements between generators and off-site treatment facilities would
suffice because EPA already requires generators to notify the EPA
Regional office or Authorized State when it is sending decharacterized
waste to a subtitle D facility under 40 CFR 268.9. One commenter
pointed to the contract between the generator and the subtitle D
facility as the mechanism by which generators would notify the
treatment facility of what underlying hazardous constituents are in the
waste.
Only one commenter offered information on the extent that the
practice of sending decharacterized wastes to a nonhazardous waste
treater for treatment of underlying hazardous constituents is actually
occurring. This commenter asked generators who send waste to their
facilities how often they remove the characteristic prior to sending
the decharacterized waste to a nonhazardous waste treatment facility
for treatment of underlying hazardous constituents. They found that
roughly 2-3 percent of the wastes from their survey group were
decharacterized D001 and D002 wastes being sent off-site for further
treatment at a nonhazardous waste treatment facility that employs CWA
wastewater treatment or stabilization of underlying hazardous
constituents. The commenter added, however, that there will be less
decharacterized TC wastes going off-site for treatment of underlying
hazardous constituents because these wastes require more sophisticated
treatment systems to remove the characteristic than do the D001 and
D002 wastes.
Based on this information, the Agency has decided, for the time
being, not to impose new notification requirements in today's final
rule (a new certification is being added in this rule to
Sec. 268.7(b)(5)(iv) as described above). The Agency continues to
believe that very little decharacterized TC wastes will be sent to a
subtitle D facility for treatment of underlying hazardous constituents.
If such a practice should occur, generators and Subtitle D facilities
have substantial incentives (such as CERCLA liability) to exchange and
verify compliance with treatment standards for underlying hazardous
constituents independent of federal notification requirements.
If, however, information becomes available that generators are
sending substantial amounts of decharacterized TC wastes off site to
subtitle D facilities for treatment of underlying hazardous
constituents, or that there is a paperwork loophole that existing
arrangements between generators and treatment facilities do not
address, today's approach will be revisited to determine whether such
tracking is necessary to assure ``cradle to grave'' tracking of wastes
and better informing subtitle D treatment and disposal companies of the
requirements to which these decharacterized wastes remain subject.

XI. Implementation of the Final Rule

This section presents flowcharts of what EPA expects will be the
most frequent set of decisions that must be made to implement the
regulations for TC organic wastes (including soils), mixtures of TC
organic wastes with listed wastes, and mixtures of TC organic wastes
with ignitable or corrosive wastes. A flowchart describing the
decisions necessary to comply with treatment standards for Phase II
newly listed wastes is also included. Additionally, a flowchart is
presented that outlines the decisions necessary to comply with
treatment standards for debris contaminated with Phase II wastes. And,
as a reminder that TC metals are not regulated by today's rule, a
flowchart is also included of the decisions that must be made to
determine if a characteristic metal waste is subject to the LDRs at
this time based on regulation of Extraction Procedure (EP) metals in
the Third Third rule in 1990, or is not yet subject to LDR regulation
because TC metals will not be addressed until a later rulemaking. These
flowcharts present only the major decisions that must be made; a
thorough reading of the regulations will be necessary to fully
implement the LDRs. There are requirements for specific waste
management scenarios that are not included in these flowcharts because
they would have become too complex to be generally useful.

BILLING CODE 6560-50-P

TR19SE94.000

TR19SE94.001

TR19SE94.002

TR19SE94.003

TR19SE94.004

BILLING CODE 6560-50-C

XII. Guidance to Applicants for Treatability Variances for As-
Generated Wastes

The Agency's existing regulations provide for variances from
treatment standards if a waste cannot be treated to the specified
treatment standard or if the treatment technology on which the standard
is based is inappropriate for the waste. Section 268.44 (a). For
guidance on treatability variances for soil, including site-specific,
non-rulemaking variances, see section I.E. ``Treatment Standards for
Hazardous Soil'' in this rule. To be granted a treatability variance, a
petitioner must show that ``because the physical or chemical properties
of the waste differs significantly from wastes analyzed in developing
the treatment standard, the waste cannot be treated to specified levels
or by the specified methods.'' Id. A demonstration that the waste
cannot be successfully treated can be made ``by showing that attempts
to treat the waste by available technologies were not successful, or
through appropriate analyses of the waste which demonstrate that the
waste cannot be treated to the specified levels.'' 51 FR at 40606 (Nov.
7, 1986). EPA evaluates treatability variance requests by ``first
look[ing] at the design and operation of the treatment system being
used. If EPA determines that the technology and operation are
consistent with BDAT, the Agency will evaluate the waste to determine
if the waste matrix and/or physical parameters are such [that] the BDAT
properly reflects treatment of the waste.'' Id. The guidance set out
below applies exclusively to treatability variances (for as-generated
wastes) evaluated by EPA headquarters and processed pursuant to
rulemaking procedures.
In order to settle a lawsuit challenging the Agency's grant of
treatability variances to two particular facilities, 56 FR 12351 (March
25, 1991), the Agency has agreed to provide some clarifying guidance
regarding treatability variances, which essentially restates existing
Agency practice and does not call into question the validity of any
treatability variance the Agency has issued. First, as stated in 1986,
to support an application for a treatability variance pursuant to
Sec. 268.44(a) for process waste, the applicant should collect and
analyze a sufficient number of samples of the untreated waste to
accurately characterize it. 51 FR at 40606 (Nov. 7, 1986). In general,
the Agency would expect the applicant to collect and analyze four
samples of its untreated and treated waste. (This corresponds to the
minimum number of samples applicants for delisting pursuant to 260.20
must submit.) However, the exact number of samples would be determined
by EPA as part of the Agency's evaluation of each treatability variance
application (and so could be less than four samples in a particular
case).
Second, the applicant should normally investigate and report on
demonstrated and reasonably available pretreatment steps that could
significantly improve the effectiveness of the treatment the applicant
is conducting. 51 FR at 40606. What the Agency has in mind is that
applicants not overlook potentially simple types of pretreatment to
remove an interfering parameter; for example, settling to reduce excess
total dissolved solids. The Agency does not intend that applicants
perform an extensive or expansive engineering analysis. Nor does the
Agency intend that applicants be required to utilize treatment systems
significantly different from those the Agency evaluated when
promulgating the treatment standard. Rather, the Agency wishes to
assure that applicants not overlook some relatively obvious means of
removing interferences. Again, in particular cases, it may not make
sense to conduct this type of analysis, in which case no such
evaluation would be necessary.
Third, the applicant should make a good faith effort to explain why
the treatment standard is not achievable for its waste. 51 FR at 40606.
This good faith effort is to be based on the applicant's knowledge of
its process, and is not to entail additional expense (such as a
consultant's engineering analysis). As a general matter, the Agency
simply believes that some thought should be given (and documented) as
to what might be causing the problem.
Finally, EPA's general policy has been and will be to publish a
notice of its proposed decision on applications for treatability
variances in the Federal Register, Sec. 261.44 (e), and to allow a
minimum of 30 days for the public to comment on the proposal. 51 FR
40607. All applicants will have the opportunity to comment on the
reasonableness of applying one or more of these foregoing statements of
guidance to their applications, and, as a result, EPA may decide not to
apply them.
EPA notes further that there have been only a handful (fewer than
10) of applications for treatability variances since implementation of
the land ban (aside from applications relating to contaminated media
and debris), of which EPA has granted three. In the applications
relating to electroplating wastes cited earlier, the Agency inferred
that something about the applicants' wastes was making the wastes more
difficult to treat than the waste EPA evaluated when promulgating the
applicable treatment standard. This inference was based on the fact
that the applicants were treating the waste with properly designed and
operated BDAT treatment technology, namely the same type of treatment
technology on which the treatment standard is based. 56 FR at 12352.
EPA emphasizes that this type of inference was, and remains,
permissible.

XIII. Clarifications and Corrections to Previous Rules

A. Corrections to the Interim Final Rule Establishing Land Disposal
Restrictions for Certain Ignitable and Corrosive Wastes

On May 24, 1993, the EPA published an interim final rule
establishing treatment standards for ignitable and corrosive
characteristic wastes except those disposed in facilities regulated
under the Clean Water Act (CWA), or Class I injection wells subject to
the Safe Drinking Water Act, or zero-discharge facilities engaged in
CWA-equivalent treatment. In today's rule, the Agency is clarifying
that the provisions of the interim final rule remain in effect unless
and until they are superseded in future LDR rules. The Agency does not
plan to issue a final rule at this time; however, it is using the
comments received on the interim final rule in developing future rules
concerning the portions of the Third Third Land Disposal Restrictions
Rule which were remanded by the D.C. Circuit (for discussion of the
court ruling, see 58 FR 29861).
Among other things, the interim final rule established treatment
standards for the underlying hazardous constituents reasonably expected
to be present in the affected wastes at the point of generation. These
treatment standards were the concentration levels for the constituents
found in F039 (multisource leachate) wastewaters and nonwastewaters.
The Agency is clarifying here that the universal treatment standards
(UTS) established today supersede the F039 standards. Therefore,
underlying hazardous constituents in the ignitable and corrosive wastes
covered by the interim final rule must meet the 40 CFR 268.48, Table
UTS--Universal Treatment Standards, levels before they can be land
disposed. This change is being made simply so that the references to
treatment standards for underlying hazardous constituents in ignitable
and corrosive wastes in the interim final rule will be the same as
those established for organic TC wastes in today's rule.
Also in the interim final rule, the Agency promulgated requirements
to address a concern raised by the court about the potential for
volatile organic constituent (VOC) emissions to create violent
reactions during the dilution of ignitable and reactive wastes (see 58
FR 29873). The regulatory language in Secs. 264.1(g)(6) and
265.1(c)(10), however, inadvertently promulgated requirements for
ignitable (D001) wastes and corrosive (D002) wastes. These sections are
being corrected in today's rule to indicate, rightly, that the
requirements apply to ignitable (D001) and reactive (D003) wastes.

B. Corrections to the Phase I Rule Establishing Land Disposal
Restrictions for Newly Listed Wastes and Hazardous Debris

Today's rule clarifies several issues from the final rule
establishing Land Disposal Restrictions for Newly Listed Wastes and
Hazardous Debris (57 FR 37194, August 18, 1992).
The first issue being corrected responds to questions over which
treatment standards can be used for treating hazardous debris. It was
stated clearly in the preamble to the August 18, 1992 rule that debris
must be treated by either using one of the specified technologies in
Sec. 268.45, or, as an alternative, by meeting LDRs for the specific
prohibited listed or characteristic waste with which the debris is
contaminated (57 FR 37221). Subsequent comment from the regulated
community indicate that this fact was not made completely clear in the
regulatory language of that rule. Certain commenters suggested that a
revision of the paperwork requirements found in Sec. 268.7 indicating
that generators have a choice as to which treatment standards they may
use would help alleviate the confusion.
EPA is, therefore, revising Sec. 268.7(a)(1)(iv) and
Sec. 268.7(a)(3)(v) to reflect that it is not mandatory to meet the
alternative debris standards in Sec. 268.45, and that generators have
the option to meet the treatment standards for the as-generated wastes
contaminating the debris. It should be noted that the paperwork
requirements for meeting treatment standards for as-generated wastes
contaminating debris are the same as those for as-generated wastes. A
new paragraph is being added to the regulatory language to indicate
this.
In addition, consistent with EPA's effort to simplify LDR paperwork
requirements, EPA is shortening the notification statement accompanying
prohibited debris. In Sec. 268.7(a)(1)(iv) and Sec. 268.7(a)(3)(v), as
promulgated on August 18, 1992, the statement ``This hazardous debris
is subject to the alternative treatment standards of 40 CFR 268.45''
was required to be placed on the LDR notification, after listing the
contaminants subject to treatment. EPA is revising that particular
statement today so that merely referencing Sec. 268.45 after listing
the contaminants subject to treatment is all that must be included on
the LDR notification.
The second issue the Agency wishes to clarify and correct today
concerns the language in Sec. 268.45(b)(2) of the August 18, 1992
Federal Register. This section states that the contaminants subject to
the alternative treatment standards for hazardous debris, which were
promulgated in the August 18, 1992 rule, are those constituents for
which BDAT standards are established in Secs. 268.41 and 268.43. The
Agency has received several letters asking why section 268.42 was not
included in that language. Section 268.42 lists those wastes for which
EPA established a treatment method as the standard. The reason section
268.42 was not included in the language in Sec. 268.45(b)(2) is that
only the wastes themselves, and not waste constituents, are listed in
Sec. 268.42.
The Agency fully intends, however, that debris contaminated with
those wastes be subject to the alternate debris standards. Therefore,
Sec. 268.45(b)(2) is being clarified today to read ``The contaminants
subject to treatment for debris that is contaminated with a prohibited
listed hazardous waste are those constituents or wastes for which BDAT
standards are established for the wastes under Secs. 268.41, 268.42,
and 268.43.''
The third issue the Agency is clarifying concerns exactly when
surface impoundments which are newly subject to RCRA section 3005(j)(1)
are expected to be in compliance with the requirements of Sec. 265.221
(a), (c), and (d). As is stated in Sec. 268.5(h)(2)(v) (as promulgated
at 57 FR 37270, August 18, 1992), such surface impoundments must be in
compliance within 48 months after the promulgation of additional
listings or characteristics for the identification of hazardous waste.
This is the maximum time allowed by RCRA section 3005(j)(6).
EPA mistakenly stated in two separate places in the preamble to the
August 18, 1992 rule that the compliance date was 48 months from the
effective date of a waste identification or listing (57 FR 37220). The
Agency wants to make it clear that the compliance date which was
promulgated in the regulations, and which is mandated by RCRA
3005(j)(6), is correct (57 FR 37270). These surface impoundments are
thus required to be in compliance 48 months from the promulgation date
of a new identification or listing. Sec. 268.5(h)(2)(v).
The promulgation date is the date the Administrator signs the rule
which lists the new waste(s). The effective date is the date the new
waste must come into compliance with hazardous waste management
requirements, and may be six months from the promulgation date. The
Agency believes that 48 months to retrofit a surface impoundment is a
reasonable amount of time, and believes that effort should begin as
soon as the listing of a waste is published in the Federal Register;
there is no reason to wait to begin retrofitting until a new listing or
identification actually becomes effective. In any case, section
3005(j)(6) allows no other option.
Finally, in Sec. 268.38(a) of this rule, EPA is prohibiting debris
that is contaminated with the wastes that were prohibited in the Phase
I rule. EPA inadvertently omitted to include such contaminated debris
in the August 18, 1992 rule.

C. Amendment of Boiler and Industrial Furnace Rules for Certain
Mercury-Containing Wastes

1. The Proposal
The Agency proposed a technical clarification to the Boiler and
Industrial Furnace (BIF) rules on July 21, 1994 (59 FR 31964), that
would exempt certain mercury-bearing hazardous wastes generated by the
Chlorine Industry from the provisions of 266.100(c). Under this
provision, owners and operators of smelting, melting, and refining
furnaces that process hazardous wastes solely for metal recovery are
conditionally exempt from regulation. To be exempt, the owner or
operator must comply with certain notification, sampling and analysis,
and recordkeeping provisions (see 266.100(c)(1)(i)). In addition, as
indicated above, the waste must be processed solely for metal recovery;
to be processed solely for metal recovery, the waste can not have a
heating value greater than 5000 BTU/lb or have a total concentration of
organic compounds listed in Appendix VIII of Part 261 greater than 500
ppm by weight. Wastes that have a heating value greater than 5000 BTU/
lb or have a total concentration of hazardous organic compounds
exceeding 500 ppm are considered by EPA to be burned for energy
recovery and destruction, respectively and, thus, are subject to the
BIF rules.
The Agency generally believes that most wastes that meet these
criteria are appropriately subject to the BIF regulations. However, in
certain instances, wastes that are burned for legitimate metal recovery
can also exceed the 5000 BTU/lb and 500 ppm organic compound limits, in
which case standards other than those in the BIF rules are likely more
appropriate. (See 59 FR at 29776 (June 9, 1994) proposing CAA MACT
standards for secondary lead smelters and indicating why RCRA air
emission standards are not needed.) In fact, the Agency has specified a
set of lead and nickel-bearing hazardous wastes that exceed the energy
recovery or destruction limits, but are still conditionally exempt from
the BIF rules if these wastes are legitimately burned for metal
recovery (see 266.100(c)(3) and Appendices XI and XII to Part 266).
In the proposed technical clarification, the Agency defined some
additional hazardous wastes--specifically, those generated by the
Chlorine Industry and which are suitable for mercury recovery--that
could be recovered in mercury retorting units without those units being
subject to the BIF rules (provided the owners or operators of these
units meet certain conditions). The Agency proposed this change based
on the fact that these wastes contain high levels of mercury (from
hundreds of parts per million to as much as 45%) and, thus are
appropriate for recovery; in addition, the retort units in which these
wastes are processed must be subject to emissions controls under the
Clean Air Act. See Sec. 268.42 (treatment standards for high mercury
subcategory wastes that require retorting units to be subject to the
CAA or comparable standards for control of mercury). It should also be
noted that the Chlorine Institute, as part of their comments on the
Phase II LDR proposal, requested that the Agency exempt these wastes
from the BIFs rules. The remainder of this section of the preamble
discusses the comments received and our response to those comments.
2. Comments and the Final Rule
The Agency received comments from five parties, Borden Chemical and
Plastics (BCP), Bethlehem Apparatus (BA), PPG Industries (PPG), Olin
Chemicals (Olin), and the Chlorine Institute (CI). Their collective
comments and the Agency's response follows.
The proposal limited the conditional exemption to certain mercury-
bearing hazardous wastes generated by the Chlorine Institute. BCP, BA,
and CI argued that the proposed change was too narrow, and that other
mercury recovery units may also process combustible materials for
legitimate metals recovery. Commenters thus recommended that the
exemption should apply to all processors of mercury wastes. The Agency
generally agrees with this position. Upon reevaluation, EPA believes
there is no need to differentiate between units in the Chlorine
Industry and similar units outside the Chlorine Industry. Therefore,
the Agency is promulgating a rule which includes units operated by
manufacturers and users of mercury or mercury products.
BCP addressed a second option for broadening the exemption so that
devices other than those operated in the Chlorine Industry could
process combustible wastes for legitimate metals recovery. BCP
suggested EPA define mercury as a precious metal and allow processors
to burn mercury laden hazardous wastes subject to the Agency's BIF
precious metals exemption (see Sec. 266.100(f)). EPA does not agree
with BCP's contention that mercury is a precious metal. Mercury is not
considered a precious metal by EPA or other Agencies or organizations.
Precious metals are defined by the Bureau of Mines to include gold,
silver, platinum, and palladium (Mineral Commodity Summary, 1993), and
by EPA at 40 CFR 266.70 to include gold, silver, platinum, palladium,
iridium, osmium, rhodium, and ruthenium, all metals whose value assures
adequate control. Therefore, EPA rejects the approach suggested by BCP.
BCP, PPG, Olin, and CI also commented that the list of materials in
the proposed technical clarification should be broadened to include the
following additional items:

Sweepings
Respiratory Cartridge Filters
Cleanup Articles
Plastic Bags and Other Contaminated Containers
Laboratory and Process Control Samples
Wastewater Treatment Plant Sludge and Filter Cake
Mercury cell process sump and tank sludges
Mercury cell process solids
K106
Recoverable levels of mercury contained in soil

Upon evaluation, the Agency agrees that of these materials are
appropriate for an exemption as long as they have recoverable levels of
mercury. However, many mercury units, e.g., retorters, are not
combustion devices and organic emissions may not be controlled in these
units. Therefore, the Agency is concerned that materials with
recoverable levels of mercury, but laden with hazardous organics, may
not provide adequate destruction of the hazardous organics in exempt
retorters, and thus, may not be protective of human health and the
environment. For that reason, the Agency is promulgating a broadened
list of materials but is limiting the exemption to these wastes
specifically identified and that contain less than 500 ppm of part 261,
appendix VIII organics.
Finally, there appears to be some confusion by the Chlorine
Industry about their status under the BIF rules (collectively, those
regulations set forth in 40 CFR Part 266, Subpart H). CI, PPG, and Olin
argued that they are not subject to BIF because they do not ``burn'' or
``combust'' anything and the BIF rules are written for combustion
devices. The Agency agrees that many mercury recovery devices do not
``burn'' or ``combust'' by design; however, these units are Industrial
Furnaces as defined in Sec. 260.10 and, thus, are subject to the
appropriate BIF rules. In particular, Sec. 260.10 defines Industrial
Furnaces as ``devices * * * that use thermal treatment to accomplish
recovery of materials'' and that these include ``refining furnaces''.
[Emphasis added.] Mercury recovery units raise the temperature of the
waste to aid in the recovery and refining of mercury. Therefore, they
are refining furnaces. In addition, Sec. 266.100(c) states that
``smelting, melting and refining furnaces * * * that process hazardous
waste solely for metals recovery are conditionally exempt * * *.''
[Emphasis added.] This language includes all refining furnaces that
process hazardous waste, irrespective of whether the process to achieve
this end is combustion or not. Therefore, mercury recovery devices are
BIFs, and come within the terms of Sec. 266.100(c). EPA is using the
term ``mercury recovery furnace'' in today's amended rule to further
clarify this point. (It should be noted that compliance with the BIF
rules for these devices are not rigorous. It requires sending a one
time written notification to the regional Director and following the
provisions set forth in Sec. 266.100(c).)
Mercury recovery operators should note that the changes discussed
in this section of the preamble only apply to units which have a metals
recovery exemption. Units which process these wastes without the proper
exemption are in violation of the BIF rules and subject to enforcement
action.

D. Amendment of Rules on Use Constituting Disposal

In 1985, EPA created a separate regulatory regime for hazardous
wastes that are recycled by being used in a manner constituting
disposal. Part 266 subpart C.\1\ These rules provide, in essence, that
the wastes can be so used without being subject to the RCRA facility
standards if the waste-derived product (i.e. the hazardous wastes that
is being used by being applied to the land (i.e. used in a manner
constituting disposal)) has been ``produced for the general public's
use,'' has undergone a chemical change so as to be inseparable by
physical means, and if it meets the applicable LDR treatment standard.
See Sec. 266.20(b).
---------------------------------------------------------------------------

\1\These rules apply, of course, only if the recycling is
legitimate, and not a form of surrogate disposal. Sec. 266.20(a)
applies only to ``recyclable materials'', which are hazardous wastes
being recycled. Sec. 261.6(a)(1). This does not include wastes that
are abandoned by being disposed of. Sec. 261.2(b)(1).
---------------------------------------------------------------------------

Hazardous wastes used in a manner constituting disposal that do not
satisfy these conditions are subject to all of the subtitle C
standards. See Sec. 266.23(a). In promulgating this provision in 1985,
however, the Agency neglected to mention the then newly-enacted land
disposal restriction requirements as among the standards to which the
wastes were subject. The Agency obviously was not intending to amend
the statute, and cannot override an express statutory requirement by
regulation. The Agency only recently noticed this omission, and is
using this opportunity to correct the error. Consequently, the Part 268
requirements will be added to the list of requirements in
Sec. 266.23(a) for those hazardous wastes not satisfying the conditions
of Sec. 266.20(b). This amendment is effective 90 days after
publication of today's rule.

XIV. Capacity Determinations

This section presents the data sources, methodology, and results of
EPA's capacity analysis for today's rule. Section A summarizes the
results of the capacity analysis for the wastes covered by this rule;
Section B summarizes the analysis of available capacity; Section C
summarizes the capacity analysis for those newly identified and listed
wastes that are land disposed in units other than deep injection wells;
Section D summarizes the capacity analysis for wastes mixed with
radioactive contaminants; Section E summarizes the results of the
capacity analysis for high TOC ignitable and TC pesticide wastes and
newly listed and identified wastes injected into Class I deep wells;
and Section F presents the results of the capacity analysis for
hazardous soil and debris contaminated with the newly listed and
identified wastes covered in this rule.
In general, EPA's capacity analysis methodologies focus on the
amount of waste currently land disposed that will require alternative
commercial treatment as a result of the LDRs. Land-disposed wastes that
do not require alternative commercial treatment (e.g., those that are
currently treated using an appropriate treatment technology or that
will be treated using an alternative on-site treatment system) are
excluded from the quantity estimates. In addition, wastes managed in
CWA, SDWA, CWA-equivalent systems are not included in this rule and
will be addressed in an upcoming rulemaking.
EPA's decisions on whether to grant a national capacity variance
are based on the demand for commercial treatment or recovery
technologies. Consequently, the methodology focuses on deriving
estimates of the quantity of wastes that will require commercial
treatment as a result of the LDRs; quantities of waste that will be
treated on-site or by facilities owned by the same company as the
generator are omitted from the required commercial capacity estimates.
The major capacity information collection initiative for this rule
was an EPA survey of all land disposal facilities that manage newly
identified TC organic wastes (including TC-contaminated soil and
debris) in land-based units (TC Survey). The survey, conducted in the
spring of 1992, is a census of approximately 140 facilities. EPA
identified the universe primarily based on those facilities that had
submitted permit modifications or received interim status for managing
these wastes. For each facility, EPA requested waste-stream specific
data on newly identified TC organic wastes and information on on-site
land disposal units and treatment and recovery systems.
EPA developed a data set of the information on the TC Survey
results. Specifically, the data set contains information on the
quantities of newly-identified organic TC wastes that will require
commercial treatment capacity as a result of the LDRs. The data
collected and the survey used for the required capacity estimates are
part of the docket for today's final rule.

A. Capacity Analysis Results Summary

For the organic TC wastes (D018-D043), EPA estimates that 220,000
tons of newly identified organic TC sludges and solids will require
alternative commercial treatment as a result of today's final rule.
EPA estimates that much smaller quantities of the other listed
wastes included in today's rule will require alternative commercial
treatment. Fewer than 100 tons of chlorinated toluene (K149-K151)
nonwastewaters are currently being land disposed and will require
alternative treatment due to the LDRs. Approximately 4,600 tons of coke
by-product (K141-K145, K147 and K148) nonwastewaters are currently
being land disposed. However, comments to EPA indicate that the
majority of the nonwastewaters are recycled or used for energy recovery
and, therefore, alternative treatment may not be required. No K141-
K145, K147 and K148 wastewaters are currently being land disposed. No
K149-K151 wastewaters are currently being land disposed.
The quantities of radioactive wastes mixed with wastes included in
today's final rule and currently being land disposed are generated
primarily by the U.S. Department of Energy (DOE). EPA estimates that
1,300 m\3\ of high-level waste, 380 m\3\ of mixed transuranic waste,
and 1,100 m\3\ of mixed low-level waste containing wastes covered in
today's rule will be generated annually by DOE. These estimates exclude
mixed wastes currently in storage, environmental restoration wastes,
and soil and debris. DOE currently faces treatment capacity shortfalls
for some high-level wastes and for all projected mixed transuranic
waste generation. In addition, although the annual DOE treatment
capacity for mixed low-level wastes exceeds the estimated annual
generation, most of this capacity is limited to treatment of
wastewaters with less than one percent total suspended solids, and is
not readily adaptable for other waste forms. Consequently, DOE also
faces a treatment capacity shortfall for mixed low-level
nonwastewaters. Furthermore, DOE has indicated that it will generally
give treatment priority to mixed wastes that are already restricted
under previous LDR rules.
With respect to certain wastes being injected into deep wells, EPA
has very limited information that differentiates high TOC D001
ignitable wastes from low TOC D001 ignitable wastes, particularly with
reference to the type of Class I injection well (i.e., nonhazardous
versus hazardous) the wastes are ultimately disposed into. The
information the Agency does have indicates that both D001 ignitable
wastes and D012-D017 TC pesticide wastes are deep well injected into
Class I hazardous wells with no-migration exemptions. However, several
commenters to the proposed rule, and other industries with Class I
injection wells, indicated that it would be extremely difficult to
identify, segregate, treat, and/or arrange for disposal of these waste
streams in a short time frame. Consequently, EPA is granting these
wastes a one-year national capacity variance.
The Agency also estimates that up to 120,000 tons of hazardous soil
and 34,000 tons of hazardous debris contaminated with the newly
identified organic TC wastes are expected to require alternative
commercial treatment.
Table 1 lists each waste code for which EPA is promulgating LDR
standards today. For each code, this table indicates whether EPA is
granting a national capacity variance for land-disposed wastes. As
indicated, EPA is not granting a two-year national capacity variance
for the newly identified organic TC wastes, including soil and debris,
nor for the listed wastes covered under this rule. Rather, EPA is
granting a three-month variance. (This extension does not apply to
wastes with a specified longer national capacity variance.) EPA is
delaying the effective date because the Agency realizes that even where
data indicate that sufficient treatment capacity exists, such capacity
may not be immediately available. Additional time may be required to
determine what compliance entails, redesign tracking documents,
possibly adjust facility operations, and possibly segregate waste
streams. EPA believes these legitimate delays can be encompassed within
a short-term capacity variance because the ability to get wastes to the
treatment capacity in a lawful manner is an inherent part of assessing
available capacity. However, the Agency is granting a two-year national
capacity variance for mixed radioactive wastes (i.e., radioactive
wastes mixed with newly identified TC organic constituents D018-D043),
including soil and debris contaminated with mixed radioactive wastes.
EPA also is granting a one-year national capacity variance to allow
the Class I injection facilities an appropriate lead time to identify
and then manage their high TOC D001 and D012-D017 waste streams by
developing practical and sound treatment and/or disposal options and
ultimately to come into compliance with today's rule.

Table 1.--Capacity Variances for Newly Listed and Identified Wastes\1\
------------------------------------------------------------------------
Variance for Variance for
surface- deep well-
Waste type disposed disposed
wastes wastes
------------------------------------------------------------------------
High TOC D001 Wastes...................... No........... One year
D012-D017 Wastes\2\....................... No........... One year
D018-D043 Nonwastewaters.................. No........... N/A
K141-K145 Wastes.......................... No........... No
K147-K148 Wastes.......................... No........... No
K149-K151 Wastes.......................... No........... No
Soil (Phase II Wastes).................... No........... N/A
Debris (Phase II Wastes).................. No........... N/A
Mixed Radioactive......................... Two years.... N/A
Mixed Radioactive Soil and Debris (with Two years.... N/A
Phase II Wastes).
------------------------------------------------------------------------
N/A=Not applicable.
\1\EPA is granting a three month national capacity variance for all the
newly identified and listed wastes covered in this rule to handle
logistical problems associated with complying with the new standards.
\2\Newly identified TC wastes that were not previously hazardous by the
old EP Leaching Procedure.

B. Analysis of Available Capacity

The analysis of commercial capacity for newly identified and listed
wastes is based primarily on data received in voluntary data
submissions. These data include estimates of available capacity at
commercial combustion facilities provided by the Hazardous Waste
Treatment Council (HWTC) on incinerators and the Cement Kiln Recycling
Coalition (CKRC) on cement kilns that burn hazardous wastes. Capacity
for other conventional treatment processes (e.g., stabilization) is
based on the 1990 TSDR Survey Capacity Data Set, which contains results
from the National Survey of Hazardous Waste Treatment, Storage,
Disposal and Recycling Survey (the TSDR Survey), and required capacity
information from prior LDR rules.
Combustion Capacity. Combustion capacity for liquid hazardous
wastes has historically been more readily available than capacity for
sludges and solids. EPA estimates commercial combustion capacity for TC
organic liquids to be about 1,267,000 tons per year. Commercial
capacity for combustion of sludges and solids is available at both
incinerators and industrial furnaces (primarily cement kilns that are
authorized to burn hazardous wastes as fuel).
Cement kiln capacity for hazardous waste is limited by air emission
limits (e.g., boiler and industrial furnace (BIF) limits under 40 CFR
266 subpart H), feed system limitations (e.g., particle size and
viscosity limits), and product (i.e., cement clinker) quality
considerations. For instance, cement quality considerations may require
that wastes burned in cement kilns have a heating value of at least
5,000 BTU/lb to ensure adequate temperatures in the kiln. (Comments
received by EPA, however, indicate that some kilns accept wastes below
this heating value.) Incineration capacity is also limited by air
emission limits, other permit limits (such as heat release limits), and
feed system limits. EPA has taken these limitations into account in its
estimates of available commercial combustion capacity.
Information available to EPA indicates that approximately 438,000
tons/year of commercial combustion capacity are available for newly
identified TC organic sludges and solids, including soil and debris.\2\
EPA primarily derived this estimate primarily from survey data compiled
by the Hazardous Waste Treatment Council (HWTC) and Cement Kiln
Recycling Coalition (CKRC). These surveys contained detailed
information on the amount and types of waste burned at each commercial
facility in 1992, and the maximum amount of waste that could
practically be burned in light of technical, operational, and
regulatory constraints. In deriving this estimate, EPA first reviewed
each survey response to confirm that the information provided was based
on technically valid assumptions. To be conservative in its national
estimate, EPA only included facilities and units that are presently
capable of operating at or near full capacity under current permit and
operational constraints. EPA then derived a national baseline estimate
of available capacity by subtracting the amount of waste (hazardous and
nonhazardous) burned in 1992 from the maximum practical capacity at
each facility. Several cement kilns that burn hazardous waste were not
included in the CKRC survey results. For these facilities, EPA obtained
maximum practical capacity estimates from other sources (e.g., past
data submittals or general trade literature), and derived available
capacity estimates by assuming that these kilns are utilized at the
average rate of those included in the CKRC survey. EPA's methodology
for deriving its baseline capacity estimate is described in greater
detail in the capacity background document for today's rule.
---------------------------------------------------------------------------

\2\This estimate includes solids and nonpumpable sludges, but
excludes pumpable sludges. Pumpable sludge capacity in general is
grouped with liquid capacity because of its limitations in particle
size, solids content, and viscosity, and because pumpable sludges
are often fed through the same feed ports that are used for liquids.
---------------------------------------------------------------------------

Once EPA obtained its baseline available commercial combustion
capacity estimate, it estimated available capacity for wastes affected
by today's rule by subtracting required capacity for routinely
generated F037 and F038 (69,000 tons/year) from its baseline estimate.
This adjustment was needed because these wastes were not regulated
during most of the 1992 base year (refer to 57 FR 37194, August 18,
1992). EPA did not adjust its capacity estimate to account for one-time
generation of F037 and F038 because the Agency understands that these
wastes were generally removed prior to the June 1994 effective date of
the LDR standards or are being left in place when the surface
impoundments that contain them are being closed.
EPA's estimate of available capacity takes into account capacity
that will be required for Phase I wastes that were granted a national
capacity variance, ignitable and corrosive wastes whose treatment
standards were vacated (58 FR 29860, May 24, 1993), waste
characteristics that affect the ability for a particular facility(s) to
treat the wastes, and other factors that may limit capacity.
EPA is also considering the capacity effects of recent court
decisions regarding the regulation of hazardous constituents other than
those for which the waste fails the TC test. EPA solicited comments on
the treatment capacity effects of requiring facilities to treat the
underlying hazardous constituents in TC organic hazardous wastes to
meet the then-proposed universal treatment standards. Although several
commenters submitted comments in support of or in opposition to
requirements for treatment of underlying hazardous constituents, few
comments were received on the specific issue of the effects of this
requirement on treatment capacity. EPA has concluded that sufficient
combustion capacity exists to treat underlying hazardous organic
constituents. One commenter indicated that few facilities could achieve
the universal treatment standards (UTS) for some metals (which may be
present as underlying constituents) in incinerator ash without further
treatment. However, EPA believes that stabilization should generally be
able to achieve the UTS levels for metal underlying constituents
present in residuals from the treatment of organic TC wastes.
Stabilization Capacity. Stabilization may be required to treat the
residuals of wastes covered in today's rule that contain metal
underlying constituents. EPA estimates that over 1 million tons of
stabilization capacity is currently available. In analyzing alternative
treatment capacity for stabilization of newly identified and listed
wastes, the Agency built on the capacity analysis conducted for the
Third Third LDR rule. This analysis was based on data contained in the
TSDR Capacity Data Set.
Innovative (Non-combustion) Technologies. There are several non-
combustion technologies for the treatment of soil contaminated with
RCRA hazardous wastes, including hydrolysis, vacuum extraction,
photolysis, and oxidation. To the extent that these technologies can be
used to treat hazardous soil on-site, the required capacity for
combustion will decrease.
EPA has limited information on innovative technologies with regard
to both available capacity and to limitations of the technologies or
constraints on the use of these technologies. EPA solicited comments on
the use of innovative technologies for the treatment of soil
contaminated with RCRA hazardous wastes. Specifically, EPA requested
information regarding constraints on the use of these technologies both
on- and off-site, including physical or chemical characteristics of the
soils, and logistical constraints such as permitting and scheduling.
EPA also solicited data on volumes of contaminated soil currently being
treated by these technologies, current available capacity, and
estimates of future capacity. EPA received two comments regarding
innovative technologies. One commenter noted that to treat soil on-site
requires permitting and approval by local, state, and federal agencies,
which may be a problem for some innovative technologies. Another
commenter stated that the chemical concentration to which a soil can be
biotreated is influenced by the particular chemical, the soil type, the
age of the contaminated media, and the bioremediation process. EPA
encourages the use of innovative technologies when feasible, and
realizes that--in some cases--use of these technologies may be limited
by technical and non-technical considerations. Sufficient conventional
treatment capacity is available, however, such that these limitations
do not affect capacity determinations.

C. Surface Disposed Newly Identified and Listed Wastes

1. Required Capacity for Newly Identified TC Organics (D018-D043)
The Agency is promulgating treatment standards for TC organic
nonwastewaters based primarily on incineration performance data.
Treatment standards for some newly identified organic TC wastewaters
are also being promulgated in today's rule. (Organic TC wastewaters
managed in systems regulated under the CWA, those injected into Class I
injection wells as regulated under the SDWA, and those zero discharge
facilities that engage in CWA-equivalent treatment prior to land
disposal will be addressed in future rulemakings. EPA will make
variance determinations for these wastes at that time.) For the
proposed rule, the Agency did not have data indicating that facilities
managing organic TC wastewaters would be impacted. Thus, EPA solicited
comments in the proposed rule on the quantities of newly identified
organic TC wastewaters affected by the rule. However, no comments were
received on this issue. The Agency has concluded that facilities
managing organic TC wastewaters will not be affected by this rule
(i.e., no organic TC wastewaters will likely require alternative
commercial treatment as a result of today's rule).
EPA developed estimates of the quantities of newly identified TC
organic wastes based on current management options to comply with the
LDR requirements. EPA did not receive any data in public comments on
the quantities of organic TC nonwastewaters containing underlying metal
constituents. EPA estimates that approximately 220,000 tons of organic
TC nonwastewaters are subject to this rule. (See Table 2 which presents
the quantities of TC nonwastewaters (except for liquid nonwastewaters)
requiring off-site treatment by waste code.) Even if all this quantity
contained underlying metal constituents, the residuals from the
treatment of organics could not be higher than 220,000 tons. Underlying
metal constituents are, by definition, at levels that are below TC
levels for metals. Stabilization is an appropriate technology for
treating low level metal wastes. Given that ample treatment capacity
exists for stabilization (over 1 million tons), EPA believes that
sufficient treatment capacity exists for residuals of organic TC wastes
containing underlying metal constituents.

Table 2.--Quantities of TC Nonwastewaters Requiring Off-Site Commercial
Treatment
[Surface disposed wastes in tons]
------------------------------------------------------------------------
Nonwastewaters
Code
------------------------------------------------------------------------
D018.................................................... 126,000
D019.................................................... 8,700
D020.................................................... 6,300
D021.................................................... 8,500
D022.................................................... 8,400
D023.................................................... 3,900
D024.................................................... 520
D025.................................................... 310
D026.................................................... 1,500
D027.................................................... 1,200
D028.................................................... 10,800
D029.................................................... 3,800
D030.................................................... 510
D031.................................................... 200
D032.................................................... 3,300
D033.................................................... 450
D034.................................................... 410
D035.................................................... 4,200
D036.................................................... 260
D037.................................................... 600
D038.................................................... 3,600
D039.................................................... 6,900
D040.................................................... 6,600
D041.................................................... 110
D042.................................................... 120
D043.................................................... 16,500
---------------
TOTAL\1\................................................ 220,000
------------------------------------------------------------------------
\1\Total may not sum due to rounding.

The Agency also developed estimates of available commercial
treatment capacity. Table 3 summarizes available capacity for each
alternative treatment technology required for the newly identified TC
nonwastewaters. The table also summarizes the required capacity for
each technology. A comparison of required and available treatment
capacity indicates that adequate combustion capacity exists for TC
nonwastewaters. Therefore, in the proposed rule, EPA indicated they
would not be granting a national capacity variance for D018-D043
nonwastewaters. EPA requested comments and any additional data on its
assessment that there is adequate treatment capacity for these wastes.
EPA received one comment on this issue. The commenter supported EPA's
determination that sufficient capacity exists to treat D018-D043
nonwastewaters. Thus, EPA has not changed its assessment and is not
granting a variance for these nonwastewaters.

Table 3.--Required and Available Capacity for Newly Identified Organic
TC Wastes\1\
[All quantities are in tons]
------------------------------------------------------------------------
Available Required
Treatment technology capacity capacity
------------------------------------------------------------------------
Liquid Combustion.............................. 1,267,000 \2\11,000
Sludge/Solid Combustion........................ 438,000 220,000
Stabilization.................................. \3\1,127,000 (\4\)
------------------------------------------------------------------------
\1\Does not include hazardous soil and debris, mixed radioactive wastes,
or deep well injected wastes.
\2\These are liquid nonwastewaters.
\3\Capacity analysis for the Phase I Newly Listed and Newly Identified
Waste rule.
\4\Stabilization capacity may be required to treat underlying metal
constituents in organic TC wastes after combustion.

2. Used Oil
EPA's capacity assessment does not include specific quantities of
used oil which might be subject to this rule. Absent data to the
contrary, EPA believes that the quantities of used oil that are land
disposed and hazardous for TC organics are relatively small. (Used oil
that is recycled and that exhibits the TC is not subject to the land
disposal restrictions. See 261.6(a)(4).)
EPA has requested information and conducted various studies of
generation, management and characteristics of used oil. Although the
data are not comprehensive, based on all indications, most used oil is
either recycled or reused as fuel.
In its May 20, 1992 (57 FR 21524) final listing determination for
used oil, the Agency concluded that only a small portion of used oil is
land disposed (less than 10 percent of the amount generated). Although
in general used oil could be hazardous for TC organics (benzene) and
metals (lead), the Agency furthermore observed that the trend of
increased recycling and the phase down of lead in gasoline under the
Clean Air Act would decrease both the quantity of used oil that is land
disposed and the proportion of it that is hazardous.
To update and refine its capacity analysis for this rule, EPA
requested comments in the September 14, 1993 proposed rule (58 FR
48092) and reviewed available data sources. The Agency requested
comments on the quantities of used oil that exhibit the toxicity
characteristic and is subject to the LDRs. EPA received only one
comment from a firm that collected over 113 million gallons of used oil
for re-refining in 1992, but did not receive any comments on the
amounts of used oil subject to the LDRs.
To gain a broader perspective of used oil generation and management
EPA examined 1991 data from the national Biennial Reporting System
(BRS). EPA did not expect to obtain comprehensive total quantities of
hazardous used oil generation and management; however, EPA was able to
get the proportional management of reported waste oils. The BRS shows
that less than one percent of all waste oil reported is landfilled. For
example, in the `waste oil from changes' category of the 1991 BRS,
approximately 1,400 tons was reported as landfilled. Although EPA
believes the proportionate disposal (percent) is nationally
representative, the total quantity was reported for waste streams from
only a few states which indicates that the total is not comprehensive.
We have received preliminary data from the State of New Jersey
Hazardous Waste Facilities Siting Commission. New Jersey treats used
oil as state hazardous waste and the Commission tracks generation and
shipping/manifest data. In the oil category, approximately 1 percent of
used oil generated is identified as land disposed (landfilled). Of this
1 percent we do not know how much would be hazardous for TC organics.
Therefore, EPA believes that the quantities of used oil that are
land disposed and are also hazardous for TC organics are small and
sufficient reuse-as-fuel, energy recovery, and/or incineration capacity
exists. EPA believes that a capacity variance is not warranted for
these wastes.
3. Required Capacity for Other Newly Listed Organic Wastes
This section presents EPA's analysis of required capacity for other
listed organic wastes including coke by-product wastes and chlorinated
toluene production wastes.

a. Surface Disposed Coke By-Product Wastes

K141--Process residues from the recovery of coal tar, including, but
not limited to, tar collecting sump residues from the production of
coke from coal or the recovery of coke by-products produced from
coal. This listing does not include K087 (decanter tank tar sludge
from coking operations).
K142--Tar storage tank residues from the production of coke from
coal or the recovery of coke by-products produced from coal.
K143--Process residues from the recovery of light oil, including,
but not limited to, those generated in stills, decanters, and wash
oil units from the recovery of coke by-products produced from coal.
K144--Wastewater sump residues from light oil refining, including,
but not limited to, intercepting or contamination sump sludges from
the recovery of coke by-products produced from coal.
K145--Residues from naphthalene collection and recovery operations
from the recovery of coke by-products produced from coal.
K147--Tar storage tank residues from coal tar refining.
K148--Residues from coal tar distillation, including but not limited
to still bottoms.

For coke by-product nonwastewaters, EPA is promulgating
concentration-based standards based on incineration. Under the
authority of section 3007 of RCRA, EPA collected generation and
management information concerning coke by-product wastes; this
information was collected in 1985 and 1987. The majority of K141 to
K145 nonwastewaters generated during that timeframe were recycled or
used for energy recovery. Tar storage tank and tar distillation bottoms
may be removed periodically. The Agency identified the following
annualized land-disposed quantities of wastes: 49 tons of K141
nonwastewaters, 2,750 tons of K142 nonwastewaters, 10 tons of K143
nonwastewaters, 304 tons of K144 nonwastewaters, 1,408 tons of K147
nonwastewaters, and less than 100 tons of K148 nonwastewaters. EPA
identified no K145 nonwastewaters that were being land disposed. The
Agency solicited comments on the above estimated quantities that may
require alternative treatment as a result of the LDRs. However, no
comments were received on this issue. Thus, EPA is using the estimates
shown above for the quantities of these wastes that may require
treatment capacity as a result of the LDRs.
Current management practices indicate that the majority of the
newly listed coke by-product wastes are amenable to recycling, and
therefore alternative treatment may not be required as a result of
today's final rule. Thus, EPA believes that adequate capacity exists to
treat the small amount of wastes that require alternative treatment.
EPA does not have any information that coke by-product wastewaters
are currently generated. The quantity of these wastewaters is assumed
to be zero. EPA solicited comments on changes of management practices
or generation data on these wastes. No comments were received on this
issue. Consequently, EPA concludes that the quantity of these
wastewaters is zero.
As a result of this analysis, EPA is not granting a national
capacity variance to K141, K142, K143, K144, K145, K147, and K148
nonwastewaters and wastewaters; however, the Agency is granting a
three-month variance as described in Section A for the reason described
therein.

b. Surface Disposed Chlorinated Toluene Wastes

K149--Distillation bottoms from the production of alpha (methyl)
chlorinated toluene, ring-chlorinated toluene, benzoyl chlorides,
and compound with mixtures of these functional groups. (This waste
does not include still bottoms from the distillation of benzyl
chloride.)
K150--Organic residuals, excluding spent carbon adsorbent, from the
spent chlorine gas and hydrochloric acid recovery processes
associated with the production of alpha (methyl) chlorinated
toluene, ring-chlorinated toluene, benzoyl chlorides and compounds
with mixtures of these functional groups.
K151--Wastewater treatment sludges, excluding neutralization and
biological sludges, generated during the treatment of wastewaters
from the production of alpha (methyl) chlorinated toluene, ring-
chlorinated toluene, benzoyl chlorides and compounds with mixtures
of these functional groups.

For wastes generated during the production of chlorinated toluene,
EPA is promulgating concentration-based treatment standards based on
incineration for nonwastewaters. EPA collected generation and
management information on wastes generated from the production of
chlorinated toluene. EPA collected this information under the authority
of section 3007 of RCRA during engineering site visits in 1988. This
capacity analysis incorporates data from the section 3007 information
request and engineering site visits. EPA identified four facilities
that produce chlorinated toluene wastes.
The Agency has identified no K149 nonwastewaters, no K150
nonwastewaters, and less than 100 tons of K151 nonwastewaters that were
being land disposed. For the capacity analysis, EPA assumes that these
quantities are currently being land disposed and will require treatment
capacity as a result of today's final rule.
EPA solicited comments on management practices and generation data
on these wastes. One commenter requested a variance because high
concentrations of salt and halogenated compounds make these wastes
difficult to incinerate. EPA contacted a commercial incineration
facility that stated that with proper management they could treat these
wastes. Therefore, EPA believes that a capacity variance is not
warranted for these wastes.
EPA does not have any information that chlorinated toluene
wastewaters are currently generated. EPA solicited comments on changes
of management practices or generation data on these wastes. No comments
were received on this issue. Thus, EPA concludes that the quantity of
these wastewaters is zero.
Because adequate capacity exists to treat these wastes, EPA is not
granting a national capacity variance for K149, K150, and K151
nonwastewaters and wastewaters; however, like the other newly listed
and identified wastes, EPA is granting a three-month variance as
described in Section A for the reason described therein.
4. Newly Identified TC Wastes That Were Not Previously Hazardous by the
Old EP Leaching Procedure
In the Third Third LDR rule (55 FR 22520, June 1, 1990), EPA
promulgated treatment standards for D012 through D017 wastes, but only
for those wastes that were previously hazardous by the old EP leaching
procedure and remain hazardous under the new TCLP. D012 through D017
wastes that were not hazardous by the old EP leaching procedure but are
now hazardous using the new TCLP are considered newly-identified D012
through D017 wastes.
In response to the ANPRM (56 FR 55160, October 24, 1991), EPA did
not receive any estimates for additional waste quantities (or newly-
identified wastes) due to the use of the TCLP rather than the EP
leaching procedure. Similarly, no estimates were received in response
to the proposed rule. EPA believes that the quantities of the newly-
identified D012 through D017 wastes due to the use of the TCLP rather
than the EP leaching procedure are small, if any, and, hence, expects
little or no additional demand for commercial treatment capacity as a
result of the LDRs. Because sufficient capacity exists to treat these
wastes, EPA is not granting the newly-identified D012 through D017
wastes a national capacity variance. However, the Agency is granting a
three-month variance as described in Section A of the preamble.

D. Required and Available Capacity for Newly Listed and Identified
Wastes Mixed with Radioactive Components

EPA has defined a mixed RCRA/radioactive waste as any matrix
containing a RCRA hazardous waste and a radioactive waste subject to
the Atomic Energy Act (53 FR 37045-37046, September 23, 1988). These
mixed wastes are subject to RCRA hazardous waste regulations, including
the LDRs, regardless of the type of radioactive constituents contained
in these wastes.
Radioactive wastes that are mixed with spent solvents, dioxins,
California list wastes, First Third, Second Third, or Third Third
wastes, and Phase I wastes, are subject to the LDRs already promulgated
for these hazardous wastes. EPA granted national capacity variances for
all of these mixed wastes because of a lack of national treatment
capacity. Today's rule addresses the radioactive wastes that contain
newly listed and identified hazardous wastes being restricted in
today's rulemaking.
Based on comments received by EPA in response to the proposed rule,
the ANPRM (56 FR 55160, October 24, 1991), and previous rulemakings,
the U.S. Department of Energy (DOE) is the primary generator of mixed
RCRA/radioactive wastes. A variety of non-DOE facilities also generate
mixed wastes, including nuclear power plants, academic and medical
institutions, and industrial facilities.
1. Waste Generation

a. Non-soil and Non-debris Mixed Radioactive Wastes

In April 1993, DOE released the Interim Mixed Waste Inventory
Report (IMWIR), which included a national inventory of all mixed wastes
that were being stored or would be generated over the next five years
and a national inventory of mixed waste treatment capacities and
technologies. The report provides waste stream-specific and treatment
facility-specific information for each site managing DOE wastes. This
report is currently being updated; however the Final Mixed Waste
Inventory Report (MWIR) Data Base that will be used to develop the
Final MWIR was made public in May, 1994. This Data Base was used to
determine the quantity of DOE-generated mixed waste requiring
treatment.
Based on the MWIR data, EPA estimates that DOE generates 1,700
m^{3/yr of non-soil, non-debris mixed radioactive waste contaminated
with TC organic constituents. In addition, DOE currently has 19,000
m^{3 of these wastes in storage. Table 4 lists the quantities of
each category of non-soil, non-debris mixed waste that DOE expects to
generate annually, as well as the amount currently in storage.

Table 4.--Quantities of DOE Non-soil, Non-debris Newly Identified TC
Organic Mixed Radioactive Wastes
------------------------------------------------------------------------
Current Annual
Mixed waste category inventory generation
(m^{3) (m^{3/yr)
------------------------------------------------------------------------
High-level waste (HLW)........................... 11,000 1,300
Mixed transuranic waste (MTRU)................... 4,700 1
Mixed low-level waste (MLLW)..................... 3,400 400
------------------------------------------------------------------------

b. Mixed Radioactive Soil

EPA derived data on the quantities of DOE mixed radioactive soils
using MWIR data. Table 5 lists the quantities of each category of mixed
radioactive soil that is expected to be generated annually, as well as
the amount currently in storage. The quantity of hazardous soil in
storage, or projected to be generated annually, is very small. This can
be attributed to the fact that the MWIR Data Base generally does not
include DOE environmental restoration wastes. When these wastes are
generated they will increase the quantity of newly identified mixed
wastes, particularly soil, that require treatment. Although these
wastes are not included in the Final MWIR Data Base, the IMWIR
estimates that DOE will generate a total of approximately 600,000
m^{3 of mixed environmental restoration wastes over the period from
1993 to 1997. Some of these wastes will likely be newly identified
organic TC mixed wastes.

Table 5.--Quantities of DOE Newly Identified TC Organic Mixed
Radioactive Soils
------------------------------------------------------------------------
Current Annual
Mixed waste category inventory generation
(m^{3) (m^{3/yr)
------------------------------------------------------------------------
High-level waste (HLW)........................... 0 0
Mixed transuranic waste (MTRU)................... 0 0
Mixed low-level waste (MLLW)..................... 20 10
------------------------------------------------------------------------

c. Mixed Radioactive Debris

EPA derived data on quantities of DOE mixed radioactive debris
using MWIR data. Table 6 lists the quantities of each category of mixed
radioactive debris that is expected to be generated annually, as well
as the quantity currently in storage.

Table 6.--Quantities of DOE Newly Identified TC Organic Mixed
Radioactive Debris
------------------------------------------------------------------------
Current Annual
Mixed waste category inventory generation
(m^{3) (m^{3/yr)
------------------------------------------------------------------------
High-level waste (HLW)........................... 0 0
Mixed transuranic waste (MTRU)................... 18,000 380
Mixed low-level waste (MLLW)..................... 14,000 650
------------------------------------------------------------------------

2. Available Capacity and Capacity Implications

a. Non-soil and Non-debris Mixed Radioactive Wastes

EPA's review of IMWIR data indicates that 4,000 m^{3 of
treatment capacity are available annually for HLW at three DOE
treatment systems. The available capacity appears sufficient to treat
the estimated average annual generation. However, the IMWIR indicates
that the current national inventory of HLW is greater than 280,000
m^{3. This quantity dwarfs DOE's annual available treatment capacity
for HLW. Consequently, DOE faces a treatment capacity shortfall for
high-level radioactive wastes.
DOE is developing the Waste Isolation Pilot Project (WIPP) in New
Mexico as a permanent repository for DOE TRU wastes, including MTRU
wastes. However, DOE is not yet authorized to begin the placement of
TRU wastes in the WIPP. In addition, wastes received at the WIPP must
meet DOE's WIPP Waste Acceptance Criteria (WIPP-WAC). DOE is still in
the planning stages for facilities designed to prepare MTRU wastes for
shipment to the WIPP. As a result, DOE faces a capacity shortfall for
treatment of MTRU wastes.
EPA's review of the IMWIR data indicates that 340 m^{3/yr of
currently available capacity exists at four DOE treatment systems for
the treatment of alpha MLLW (i.e., MLLW with an alpha particle content
between 10 and 100 nCi/g). However, the available capacity is greatly
exceeded by the estimated quantity of alpha MLLW requiring treatment
annually over the next five years, 3,700 m^{3. Consequently, DOE
faces a treatment capacity shortfall for non-soil, non-debris alpha
MLLW.
According to IMWIR, 1,000,000 m^{3/yr of treatment capacity
among 26 systems are currently available to treat non-alpha MLLW.
However, IMWIR states that most of DOE's currently available treatment
capacity for MLLW is represented by facilities limited to the treatment
of wastewaters (defined by DOE as less than 1 percent total suspended
solids (TSS)). While these treatment facilities provide excess capacity
for MLLW wastewaters, they cannot process wastes with high TSS and are
not readily adaptable for other waste forms. Thus, although the
quantity of MLLW treatment capacity is greater than the total quantity
of mixed wastes, DOE faces a treatment capacity shortfall for
nonwastewater MLLW, and thus non-alpha MLLW.
While DOE has provided its best available data on mixed waste
generation, uncertainty remains about mixed waste generation at DOE
(and non-DOE) facilities. For example, not all DOE Field Organizations
responded to DOE's request for information following publication of the
ANPRM. In addition, the data submitted to EPA generally did not include
DOE environmental restoration wastes which, when generated, will
increase the quantity of newly identified mixed wastes that require
treatment. The IMWIR estimates that DOE will generate a total of
600,000 m^{3 of mixed environmental restoration wastes over the
period from 1993 to 1997. Although the IMWIR notes that the estimates
of DOE environmental restoration wastes are preliminary, the quantities
noted above will place additional strains on DOE's limited available
mixed waste treatment capacity.
Although DOE is in the process of increasing its capacity to manage
mixed RCRA/radioactive wastes, information supplied by DOE indicates
that a significant capacity shortfall currently exists for the
treatment of mixed RCRA/radioactive wastes, much of which are in
storage facilities awaiting treatment. DOE has indicated that it will
generally give treatment priority to mixed wastes that are already
restricted under previous LDR rules (e.g., radioactive wastes mixed
with solvents, dioxins, California list wastes, First Third, Second
Third, or Third Third wastes, and Phase I wastes). DOE is also
concerned about the availability of treatment capacity for mixed wastes
that will be generated as a result of site remediation activities.
EPA's review of non-DOE data sources also showed a significant lack of
commercial treatment capacity.
In response to the Phase II proposed rule, EPA received six
comments concerning the proposal to grant a two-year national capacity
variance for non-soil, non-debris TC organic mixed radioactive wastes.
All six commenters, including DOE, were in favor of the two-year
national capacity variance. Furthermore, none of the commenters
identified any additional treatment capacity for the wastes. Thus,
despite the uncertainty about the exact quantities of mixed radioactive
wastes containing newly listed and identified wastes that will require
treatment as a result of today's rule, the quantities appear to exceed
available capacity. In addition, any new commercial capacity that does
become available will be needed for mixed radioactive wastes that were
regulated in previous LDR rulemakings and whose variances have already
expired. Therefore, EPA has determined that sufficient alternative
treatment capacity is not available for mixed radioactive wastes
contaminated with newly listed and identified wastes whose standards
are being promulgated today, and thus is granting a two-year national
capacity variance for these wastes.

b. Mixed Radioactive Soil

EPA's review of IMWIR data indicates that no available treatment
capacity exists at DOE facilities for mixed radioactive soils. As
indicated earlier, a preliminary estimate of mixed radioactive soil is
approximately 10 m^{3/yr. Therefore, EPA is granting a two-year
national capacity variance for mixed radioactive soils.

c. Mixed Radioactive Debris

EPA's review of IMWIR data indicates that less than 2 m\3\/yr of
treatment capacity is available that can accept mixed low-level debris,
an amount that exceeds the estimated annual generation. In addition,
DOE has not yet been authorized to begin placement of MTRU wastes into
the WIPP. As a result, DOE faces a treatment capacity shortfall for
mixed transuranic debris. Therefore, EPA is granting a two-year
national capacity variance to debris contaminated with mixed
radioactive wastes.

E. Required and Available Capacity for High TOC Ignitable, TC
Pesticide, and Newly Listed Wastes Injected Into Class I Deep Wells

As explained in previous rules concerning land disposal
restrictions (see e.g., 52 FR 32450, August 27, 1987; 53 FR 30912,
August 16, 1988; 55 FR 22520, June 1, 1990), EPA is allocating
available capacity first to those wastes disposed in surface units,
second to wastes resulting from CERCLA and RCRA clean ups, and finally
to underground injected wastes. Based on this hierarchical approach,
the Agency is promulgating the following effective dates for injected
wastes.
EPA still has very limited information which differentiates high
TOC D001 ignitable wastes from low TOC D001 ignitable wastes,
particularly with reference to the type of Class I injection well
(i.e., nonhazardous versus hazardous) into which the wastes are
disposed. The information the Agency does have indicates that both D001
ignitable wastes and D012-D017 TC pesticide wastes are deep well
injected into Class I hazardous wells with no-migration variances. EPA
is concerned that since these wastes are being generated, the potential
exists that diluted D001 ignitable wastes and D012-D017 TC pesticide
wastes are also being injected into Class I nonhazardous wells. In the
proposed rule, EPA estimated that, based on management practices, low
volumes of diluted high TOC ignitable waste were injected into Class I
nonhazardous wells, and less than 420 tons of D012-D017 pesticide
wastes are deep well injected into Class I nonhazardous wells. However,
several commenters to the proposed rule, and other industries with
Class I injection wells, have indicated that it would be extremely
difficult to identify, segregate, treat, and/or arrange for disposal of
these waste streams in a short time frame. This may be particularly
true if waste volumes for high TOC D001 ignitable wastes are discovered
to greatly exceed earlier estimates. The facilities, depending on their
Class I injection wells, would have to reconfigure their disposal
systems, which may include the construction or rearrangement of
wastelines or piping.
To allow sufficient time to address these logistical problems, EPA
is granting a one-year national capacity variance to allow the Class I
injection facilities an appropriate lead time to identify their
decharacterized high TOC D001 and D012-D017 waste streams and to create
an infrastructure that allows their alternative management consistent
with today's rule and the statute. This may include installation of
equipment to segregate wastes. For operators applying for no-migration
petitions, the variance will allow time for conducting the modelling or
other analysis, for EPA review, and for the operators to make
alternative arrangements if the petitions are not granted.
The following wastes are the newly listed wastes for which
numerical standards are being promulgated, and which current data
indicate are not being underground injected:

Coke By-Product Wastes: K141, K142, K143, K144, K145, K147, K148
Chlorotoluene Production Wastes: K149, K150, K151

The Agency requested further comment on whether any of these wastes
are being injected. Comment was also requested on what quantities of
wastes are being injected, and on the characteristics of these wastes.
However, no comments were received on this issue. EPA is therefore not
granting a national capacity variance for coke production wastes (K141-
K145, K147, K148) and for chlorotoluene production wastes (K149-K151)
injected into Class I deep wells.

F. Required and Available Capacity for Hazardous Soil and Debris
Contaminated with Newly Listed and Identified Wastes

This capacity analysis focuses on hazardous soil and debris
contaminated with wastes whose treatment standards are promulgated in
today's rule.
EPA used several data sources to estimate the total quantity of
land-disposed hazardous soil and debris. These sources include:
responses to the Advance Notice to the Proposed Rulemaking (ANPRM) for
the newly identified wastes (56 FR 55160); the TC Survey; information
provided during a series of roundtable meetings held by the Agency in
May and June of 1991 with representatives of companies involved in the
management and disposal of hazardous debris and soil; the Biennial
Reporting System (BRS); Records of Decision (RODs) of Superfund sites;
the TSDR Survey; and the National Survey of Hazardous Waste
Generators.\3\
---------------------------------------------------------------------------

\3\EPA conducted the surveys during 1987 and 1988 to obtain
comprehensive data on the nation's capacity for managing hazardous
waste and the volumes of hazardous waste being land disposed as well
as data on waste generation, waste characterization, and hazardous
waste treatment capacity in units exempt from RCRA permitting.
---------------------------------------------------------------------------

1. Waste Generation

a. Hazardous Soil

The hazardous soil covered by this rule includes soil contaminated
with D018-D043 organic TC wastes, and soils contaminated with coke by-
product wastes and chlorinated toluene wastes. The largest quantity of
hazardous soil affected by today's rulemaking is hazardous soil
contaminated with D018-D043 organic TC wastes. At the time of the
proposal, the Agency estimated that approximately 233,000 tons per year
of TC soils would require off-site treatment and the majority of these
TC soils was expected to be generated from surface impoundment
closures. Based on new data received from owners/operators concerning
surface impoundment closure practices, the Agency now estimates that
the annual quantities of TC soil that is land disposed and subject to
the LDRs ranges from 70,000 to 120,000 tons. Because TC soil generation
from surface impoundment closures is somewhat discretionary, decisions
by owners/operators of facilities concerning closure methods
significantly changed the generation rates previously estimated in the
TC Survey.
The Agency contacted facilities expected to generate TC soils from
surface impoundment closures in 1993, 1994, and 1995 to confirm
generation rates. Nearly all of the owners/operators revised their
estimates for TC soil generation downward. Most owners/operators
revised their closure practices to minimize or eliminate TC soil
generation. Some facilities closed impoundments prior to today's
rulemaking and other facilities are closing their impoundments as
landfills. In closing as a landfill, a facility closes the impoundment
with the waste in place. The facility owners/operators remove all free
liquids, stabilize the sludges, cap the impoundment, and establish a
ground water monitoring system. Therefore, for these facilities, no LDR
treatment capacity would be necessary for TC soils. Of the facilities
that predicted TC soil generation in 1994 and 1995, no facility
currently expects to ship TC soils generated from a surface impoundment
closure off-site for LDR treatment.
However, for at least two facilities, some uncertainty existed
concerning the ability of these facilities to ship all of their TC
soils off-site prior to today's rulemaking. Nevertheless, even if these
facilities generated all their TC soils after today's rulemaking, the
impact on LDR treatment capacity would be minimal because these
facilities were expected to generate only 5,300 tons of TC soils.
Therefore, only 5,300 tons of TC soils generated by surface impoundment
closures might require off-site treatment.
The Agency also reviewed the TC data base and public information on
specific facilities to assess the TC soil generation rate from routine
and sporadic activities that might require off-site disposal. For this
analysis, the Agency assumed that routine activities and the quantity
of soil generated should be considered constant over time when
analyzing the generator population as a whole. However, for sporadic
activities (e.g. surface impoundment closures), which by their nature
occur infrequently, the year in which they occur is critically
important in determining the required capacity for soil when the rule
becomes effective.
In the TC Survey, some TC wastes were only characterized as a
mixture of soil and debris. For the lower bound estimate (70,000 tons),
the Agency assumed a 50-50 ratio of soil and debris in mixtures
characterized as soil and debris. Using this assumption, EPA estimates
that approximately 70,000 tons of TC soils generated by routine and
sporadic activities will require additional treatment annually. In
addition, in this lower bound estimate, the Agency assumed that all
facilities were able to manage the TC soils generated from surface
impoundment closures prior to the effective date of today's rule.
Therefore, for the lower bound estimate, no TC soils from surface
impoundment closures are expected to require additional treatment
capacity. Based on these assumptions, the Agency calculates that the
lower bound estimate is 70,000 tons of TC soils per year.
For the upper bound estimate, the Agency assigned the entire
quantity of mixtures of soil and debris reported in the TC survey as TC
soils. As a result, the TC soil generation rate for routine and
sporadic activities increased by about 20,000 tons. The Agency
conducted a similar review of facilities that submitted confidential
business information (CBI) concerning TC soil generation rates. When
assuming a 100 percent of mixtures were TC soils, these facilities were
estimated to generate an additional 53,000 tons of TC soils for a total
of 143,000 tons.
To verify the accuracy of the upper bound estimate, the Agency
contacted individual facilities to determine actual TC soil generation
rates. Based on these contacts, the TC data base overestimated TC soil
generation from routine and sporadic activities. Many facilities stated
that actual generation rates were lower or that the estimate included
one time wastes from surface impoundment closures that already
occurred. Therefore, when the Agency revised the upper bound estimates,
TC soil generation rates for routine and sporadic activities at all
facilities (non-CBI and CBI facilities) were approximately 114,000
tons. After adding the 5,300 tons of TC soils generated by surface
impoundment closures, the estimated upper bound quantity of TC soil
requiring additional treatment is approximately 120,000 tons per year.
Due to reduced generation of TC soils from surface impoundment
closures in 1994 and 1995 and overestimations of TC soil generation
rates from routine and sporadic activities, the Agency estimates that
between 70,000 and 120,000 tons per year of TC soils will require off-
site treatment.
At the time of the proposed rulemaking, the Agency was uncertain
concerning the quantities of TC soil generated from manufactured gas
plants (MGP). Most of the soil generated at these plants is expected to
be contaminated with benzene. EPA requested updated information on the
generation and management of these wastes and on whether there will be
sufficient commercial treatment services to treat these wastes on-site.
No comments were received that specified quantities of soil generated
or discussed commercial capacity for contaminated soils. While EPA
acknowledges that generation of TC-contaminated soil from MGP will
occur, the Agency expects that most of this quantity will be managed
on-site and will not require off-site or commercial treatment capacity.
Therefore, EPA has concluded that TC-contaminated soil from MGPs will
not significantly affect the required treatment capacity for soil.
Similarly, several commenters to the ANPRM indicated that EPA may
have underestimated the annual quantities of hazardous soil generated.
Some commenters provided site specific data on the quantities of soil
generated during remedial actions. The Agency incorporated these data
in its analysis of the required capacity for hazardous soil.
In the proposed rule, EPA requested comments on the use of
innovative technologies for hazardous soil. Specifically, EPA requested
information on constraints to the use of these technologies both on-
and off-site, including physical or chemical characteristics of the
wastes, and logistical constraints such as permitting and scheduling.
One commenter noted that to treat soil on-site requires permitting and
approval by local, state, and federal agencies, which may be a problem
for some innovative technologies. Another said that the chemical
concentration to which a soil can be biotreated is influenced by the
particular chemical, the soil type, the age of the contaminated media,
and the bioremediation process. EPA has taken these comments into
account in estimating the available capacity provided by innovative
technologies for the treatment of hazardous soil.

b. Hazardous Debris

This rule covers debris contaminated with the newly listed and
identified wastes covered in this rule. As shown in Table 7, data from
the TC Survey indicates that approximately 34,000 tons of debris
contaminated with D018-D043 wastes may be currently land disposed.

Table 7.--Quantities of TC-Contaminated Debris Requiring Off-Site
Treatment
[Surface disposed wastes in tons]
------------------------------------------------------------------------
Code Debris
------------------------------------------------------------------------
D018....................................................... 26,400
D019....................................................... 220
D020....................................................... 20
D021....................................................... 210
D022....................................................... 80
D023....................................................... 60
D024....................................................... 60
D025....................................................... 60
D026....................................................... 700
D027....................................................... 290
D028....................................................... 280
D029....................................................... 330
D030....................................................... 90
D031....................................................... 10
D032....................................................... 70
D033....................................................... 110
D034....................................................... 40
D035....................................................... 300
D036....................................................... 70
D037....................................................... 130
D038....................................................... 570
D039....................................................... 970
D040....................................................... 890
D041....................................................... 20
D042....................................................... 20
D043....................................................... 1,700
------------
Total\1\................................................... 34,000
------------------------------------------------------------------------
\1\Total may not sum due to rounding.

2. Current Management Practices
Waste generators and TSDFs report that most of the soils
contaminated with D018-D043 newly identified organic TC wastes are
currently landfilled without prior treatment. Incineration is the
commercial off-site treatment technology reportedly available for these
wastes.
Other than incineration for treating organic TC-contaminated soil,
EPA has no information on the commercial off-site availability of other
treatment technologies (e.g., low temperature thermal desorption,
bioremediation, solvent extraction). Although several commenters to the
ANPRM mentioned bioremediation as an alternative to incineration for
the treatment of TC-contaminated soils, no commenter provided facility
specific information on commercially available off-site treatment
capacity for this technology. The lack of off-site commercial capacity
for technologies other than incineration was confirmed by responses to
EPA's request for voluntary information from vendors of innovative
technologies provided in the Vendor Information System for Innovative
Treatment Technologies (VISITT). At the time of the proposed rule, EPA
had received no information that special-handling problems may limit
the quantity of hazardous soil that currently can be treated by
incineration, and EPA requested information on special-handling
concerns with managing these wastes. No comments were received on this
issue. Thus, EPA has concluded that the quantity of hazardous soil that
can be treated by incineration will not be limited by special-handling
problems.
3. Available Capacity and Capacity Implications

a. Hazardous Soil

EPA is requiring that hazardous soil be treated prior to land
disposal. EPA has determined that available destruction (e.g.,
incineration) and immobilization (e.g., stabilization) capacity exists.
Some additional capacity also exists from many of the technologies in
the extraction family (e.g., soil washing, chemical extraction).
However, some of the capacity of extraction technologies currently used
to decontaminate soils, such as soil washing, may not have received
requisite permits by the effective date of this rule, although EPA is
exploring the various opportunities for these technologies to become
operational in an expedited manner. (Please contact the appropriate EPA
regional office or the state hazardous waste program.) Thus, EPA
anticipates that the off-site commercial capacity available to treat
hazardous soils at the time this rule becomes effective will be limited
to incineration and stabilization.
EPA recognizes that innovative technologies are also available to
treat hazardous soil. Performance of these technologies also may be the
basis for treatability variances pursuant to Sec. 268.44(h). EPA
requested comments on the practicality and current availability of
these technologies. EPA received comments that the proposed soil
standards cannot be met by bioremediation, but may be met by innovative
technologies such as thermal desorption and soil vapor extraction.
However, EPA did not receive any comments on the current availability
of these technologies. Thus, EPA has concluded that the off-site
treatment capacity for hazardous soils will initially be limited to
incineration and stabilization.
The Agency also solicited comments on the need for a capacity
variance and on estimates of available treatment capacity. One
commenter opposed the proposed capacity variance for soils and said
that EPA should--at the very least--require treatment of ``hot spots.''
Several commenters supported the two-year national capacity variance.
However, EPA has determined that a national capacity variance is
unnecessary for hazardous soils.

b. Hazardous Debris

EPA estimates that approximately 34,000 tons of debris contaminated
with newly identified organic TC wastes are currently land disposed and
require off-site commercial treatment capacity. The capacity analysis
conducted for debris contaminated with Phase II wastes indicates that
sufficient capacity exists to treat debris contaminated with organics.
Therefore, EPA is not granting a national capacity variance for
hazardous debris contaminated with organic TC wastes and other listed
organic wastes covered in this rule.

XV. State Authority

A. Applicability of Rules in Authorized States

Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR part 271.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
in lieu of EPA administering the Federal program in that State. The
Federal requirements no longer applied in the authorized State, and EPA
could not issue permits for any facilities that the State was
authorized to permit. When new, more stringent Federal requirements
were promulgated or enacted, the State was obliged to enact equivalent
authority within specified time frames. New Federal requirements did
not take effect in an authorized State until the State adopted the
requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in nonauthorized States.
EPA is directed to carry out these requirements and prohibitions in
authorized States, including the issuance of permits, until the State
is granted authorization to do so. While States must still adopt HSWA-
related provisions as State law to retain final authorization, HSWA is
implemented Federally in authorized States in the interim.
Certain portions of today's rule are being promulgated pursuant to
sections 3004 (d) through (k), and (m), of RCRA (42 U.S.C. 6924 (d)
through (k), and (m)). These will be added to Table 1 in 40 CFR
271.1(j), which identifies the Federal program requirements that are
promulgated pursuant to HSWA and that take effect in all States,
regardless of their authorization status. States may apply for either
interim or final authorization for the HSWA provisions in Table 1, as
discussed in the following section of this preamble. Table 2 in 40 CFR
271.1(j) is also modified to indicate that this rule is a self-
implementing provision of HSWA.

B. Effect on State Authorization

As noted above, today's rule, with the exception of the changes in
the definition of solid waste (see preamble section IX, and further
discussion in this section, below), will be implemented in authorized
States until their programs are modified to adopt these rules and the
modification is approved by EPA. Because the rule is promulgated
pursuant to HSWA, a State submitting a program modification may apply
to receive either interim or final authorization under RCRA section
3006(g)(2) or 3006(b), respectively, on the basis of requirements that
are substantially equivalent or equivalent to EPA's. The procedures and
schedule for State program modifications for either interim or final
authorization are described in 40 CFR 271.21. On December 18, 1992, EPA
extended the period allowing interim authorization to January 1, 2003
(see 40 CFR 271.24(c) and 57 FR 60129).
Section 271.21(e)(2) requires that States that have final
authorization must modify their programs to reflect Federal program
changes and must subsequently submit the modification to EPA for
approval. The deadline by which the State would have to modify its
program to adopt these regulations is specified in section 271.21(e).
Once EPA approves the modification, the State requirements become
Subtitle C RCRA requirements.
States with authorized RCRA programs may already have requirements
similar to those in today's rule. These State regulations have not been
assessed against the Federal regulations being promulgated today to
determine whether they meet the tests for authorization. Thus, a State
is not authorized to implement these requirements in lieu of EPA until
the State program modifications are approved. Of course, states with
existing standards could continue to administer and enforce their
standards as a matter of State law. In the period between the effective
date of today's rule and the approval of state program modifications,
the regulated communities in authorized states generally must comply
with state regulations in addition to the provisions in today's rule.
The regulated community should continue to consult with state agencies
authorized to administer LDRs. In implementing the Federal program, EPA
will work with States under agreements to minimize duplication of
efforts. In many cases, EPA will be able to defer to the States in
their efforts to implement their programs rather than take separate
actions under Federal authority.
States that submit official applications for final authorization
less than 12 months after the effective date of these regulations are
not required to include standards equivalent to these regulations in
their application. However, the State must modify its program by the
deadline set forth in Sec. 271.21(e). States that submit official
applications for final authorization 12 months after the effective date
of these regulations must include standards equivalent to these
regulations in their application. The requirements a state must meet
when submitting its final authorization application are set forth in 40
CFR 271.3.
The regulations promulgated today need not affect the State's
Underground Injection Control (UIC) primacy status. A State currently
authorized to administer the UIC program under the Safe Drinking Water
Act (SDWA) could continue to do so without seeking authority to
administer the amendments that will be promulgated at a future date.
However, a State which wished to implement Part 148 and receive
authorization to grant exemptions from the land disposal restrictions
would have to demonstrate that it had the requisite authority to
administer sections 3004 (f) and (g) of RCRA. The conditions under
which such an authorization may take place are summarized below and are
discussed in a July 15, 1985 final rule (50 FR 28728).
The modifications to the definition of solid waste in this rule
(see preamble section IX) are based on non-HSWA authority. This portion
of the rule, because it is not based on HSWA authority, will be
applicable immediately only in those States that do not have final RCRA
authorization. In authorized States, these requirements will not apply
until the States revise their programs to adopt equivalent requirements
under State law. In addition, this modification broadens the ``closed-
loop'' recycling exclusion from the definition of solid waste. The
modification to this rule is less stringent, or reduces the scope of,
the Federal program. Therefore, although EPA strongly encourages timely
adoption, authorized States are not required to modify their programs
to adopt regulations consistent with and equivalent to this provision.

XVI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

Executive Order No. 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a
``significant'' regulatory action as one that ``is likely to result in
a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients; or
(4) raise novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in the
Executive Order.''
The Agency estimated the costs of today's final rule to determine
if it is a significant regulation as defined by the Executive Order.
The incremental compliance costs for today's rule were estimated as a
range from $194 to $219 million per year. Therefore, today's final rule
is considered an economically significant rule, having an annual effect
on the economy of over $100 million. The Agency prepared a regulatory
impact analysis which analyzed the costs, economic impacts, and
benefits of today's final rule.
This section of the preamble for today's final rule provides a
discussion of the methodology used for estimating the costs, economic
impacts and the benefits attributable to today's final rule, followed
by a presentation of the cost, economic impact and benefit results.
Limitations to these estimates are described in the results section.
More detailed discussions of the methodology and results may be found
in the background document, ``Regulatory Impact Analysis of the Land
Disposal Restrictions Final Rule for the Phase 2 Newly Listed and
Identified Wastes,'' which has been placed in the docket for today's
final rule.
1. Methodology Section
In today's final rule, the Agency is establishing treatment
standards for newly identified and listed wastes, as well as any soils
and debris which are contaminated with such wastes. (The Agency plans
to develop alternative standards for hazardous soils as a part of the
Hazardous Wastes Identification Rule (HWIR).) The newly identified
wastes covered under today's rule include wastes displaying the organic
toxicity characteristic (TC), and pesticide wastes that were not
previously hazardous by the EP leaching procedure. The newly listed
wastes are Coke By-product wastes and Chlorotoluene wastes.
Of the newly regulated hazardous soil in today's rule, the only
existing volumes are soils contaminated with TC wastes. (Any volumes of
soil contaminated with F037 and F038 listed wastes which exist are not
covered in today's rule, but are being covered in a future Agency
rulemaking.) Finally, the Agency is promulgating new testing and
recordkeeping requirements, as well as reducing other recordkeeping
requirements.
Furthermore, today's final rule proposes Universal Treatment
Standards (UTS) for wastes already regulated under the LDRs. The
Agency's analysis includes an analysis of the volumes affected by this
change in treatment levels. (In the switch to UTS levels there are
cases where the new UTS level is less stringent than the existing
listing levels, as well as cases where the UTS is more stringent than
existing levels. Either of these cases would have the potential to
change the costs associated with treatment of these wastes.)

a. Methodology for Estimating the Affected Universe

In determining the costs, economic impacts, and benefits associated
with today's rule, the Agency estimated the volumes of TC
nonwastewaters, Coke By-Product wastes, and Chlorotoluene wastes
affected by today's rule. For the TC wastes, the Agency employed the
1995 volume estimates presented for each affected waste in the Agency's
1992 TC Census Database (hereafter referred to as the ``TC Survey'').
(There are several ways in which the volumes employed for the capacity
determinations differ from those used in the RIA.) The capacity
determinations section of the preamble describes the methods used there
to determine volumes. The scope of the RIA differs from that of the
capacity determination in the ``time window'' analyzed. The RIA
examines the short- and long-term impacts from the rule. Capacity
determinations, on the other hand, are made for a two year time frame
beginning at the promulgation of today's rule.
The Agency employed the volumes of Coke By-Products and
Chlorotoluene wastes estimated in their respective listing analyses.
For Coke By-Products, current management practices suggest that no
volumes will be land disposed.

b. Cost Methodology

The cost analysis estimates the national level incremental costs
which will be incurred as a result of today's rule. The cost estimates
for both the baseline and post-regulatory scenarios are calculated
employing: (i) The facility wastestream volume, (ii) the management
practice (baseline or post-regulatory) assigned to that wastestream,
and (iii) the unit cost associated with that practice. Summing the
costs for all facilities produces the total costs for the given waste
and scenario. Subtracting the baseline cost from the post-regulatory
cost produces the national incremental cost associated with today's
rule for the given waste. The unit costs include costs for Subtitle D
and Subtitle C disposal (as appropriate), and transportation costs
where necessary; all dollar estimates are in 1993 dollars (unless
otherwise noted.)
Each section below summarizes the baseline and post-regulatory
management practices assignments for each waste. The unit costs
employed for the management practices are summarized in the RIA
background document for today's rule.
The cost methodology section includes three sub-sections: (i) TC
organic wastes, (ii) Other newly identified wastes, (iii) Testing,
record-keeping, and permit modification costs.

i. Organic Toxicity Characteristic Wastes (D018-D043)

The standards established in today's rule for the organic TC wastes
require the treatment of all underlying hazardous constituents. The
affected TC wastes can be divided into three groups: TC nonwastewaters,
TC soils, and TC debris. While TC wastewaters which are not managed in
CWA or CWA-equivalent units are being regulated in today's rule, the
current management practices for these volumes do not trigger land
disposal (RCRA exempt tanks, etc.), and therefore are not subject to
the LDRs. Below, EPA describes the method of estimating the costs
incurred in complying with the TC standards in today's rule.
In establishing a baseline for the TC nonwastewaters, TC hazardous
soils, and TC hazardous debris affected by today's rule, the Agency
assumed Subtitle C landfilling as the current management practice. The
Agency believes that there are TC wastes which are not affected by
today's rule because they are already being treated to comply with the
standards established in today's rule (e.g.: wastes with high BTU value
which are being used as fuel, etc.). The Agency assumed that
landfilling was occurring on-site for noncommercial (company captive)
facilities, and off-site for commercial facilities. Employing today's
requirement of treating for all underlying constituents reasonably
expected to be present, the Agency developed technology assignments for
the wastes at each facility. The assignments include a treatment
technology (or treatment train where required), and subsequent Subtitle
D disposal. These assignments were based on waste characterization and
constituent concentration data. Where little or no such data were
available for a wastestream, the weighted average unit cost was
assigned (the weighted average unit cost was calculated separately for
nonwastewaters, soils, and debris).
The Agency allows a generator of hazardous soil to apply for a
treatability variance. The Agency, however, has not analyzed the
potential short-term savings which could be realized in the management
of hazardous soil, and therefore may have overestimated the cost
impacts of the rule in the short-term. There is also some uncertainty
where certain technologies will be available to treat TC
nonwastewaters. The Agency performed a sensitivity analysis to
characterize this uncertainty, which is included in the RIA Background
Document.

ii. Other Newly Identified Wastes

In addition to organic TC wastes, the wastes affected by today's
final rule include coke by-product and chlorotoluene wastes. Based on
an economic analysis conducted by the Agency for the listing of coke
by-product waste, generators recycle these wastes rather than disposing
of them in Subtitle C landfills. Therefore, EPA estimates that
negligible volumes of coke by-product wastes would be affected by this
rule. For the chlorotoluene waste volumes, EPA conducted a detailed
cost analysis using site specific data.

iii. Testing, Recordkeeping, and Permit Modification Costs

In addition to the costs for treatment of wastes, EPA estimated the
incremental costs of the testing and recordkeeping requirements in
today's rule. Testing and recordkeeping costs were developed for all
wastes addressed in today's rule.
The Agency examined the incremental cost of the testing
requirements under today's rule. The Agency considered the baseline
scenario to include testing for waste identification. The post-
regulatory scenario would include testing for waste identification,
testing to determine the number and concentration of constituents
requiring treatment, and testing following treatment to ensure
compliance with the standards.
For the analysis of recordkeeping costs, the Agency employed the
estimates developed in the Information Collection Request (ICR) for
today's rule. These estimates were employed in a facility specific
analysis to develop a total incremental cost associated with the
testing and recordkeeping requirements in today's rule.
The Agency also performed a sensitivity analysis on potential
permit modification costs for facilities which may switch to on-site
treatment. EPA applied a schedule of payments based on the costs of
permit modifications to a group of nine facilities. The results of this
analysis are provided in the Background Document RIA.

c. Waste Minimization Methodology

Since reducing waste generation may be less costly than treating
these wastes to LDR standards, the Agency performed an analysis
examining the potential waste minimization alternatives available to
facilities. The analysis followed a multi-step methodology which
included: (1) Develop a profile of the industries which indicated plans
for waste minimization in the 1992 TC Survey Database, (2) select
industries to examine which would be representative of the TC waste
universe, (3) make telephone data verification calls to facilities
within these industries, (4) determine the cost components for the
post-regulatory and waste minimization scenarios for all wastestreams
for those facilities, (5) estimate whether potential total costs/cost
savings for the waste minimization and the post-regulatory (i.e.,
without waste minimization) scenarios would be a profitable investment
for the firms, and (6) extrapolate results to the TC waste universe,
and determine overall cost/cost savings.

d. Economic Impact Methodology

The economic effects of today's final rule are defined as the
difference between the industrial activity under post-regulatory
conditions and the industrial activity in the absence of regulation
(i.e., baseline conditions). It should be noted that the volumes used
for the economic impacts analysis do not include the reduction in
volumes, and thus in costs, from waste minimization practices.
The Agency has evaluated the economic impacts for facilities
managing organic TC wastes on a facility specific basis, limited only
by the extent that data were available. EPA estimated the economic
effects by comparing incremental annual compliance costs to a number of
company financial measures, such as revenues, cost of operations,
operating income, and net income. Financial data were obtained from
Standard & Poor's Corporation Descriptions for the last fiscal year
reported.
Since EPA believes that no costs will be associated with the
treatment standards for coke by-products in the final rule, no economic
impacts will be associated with regulation of these wastes. Economic
impacts of compliance for facilities currently land disposing
chlorotoluenes were evaluated in aggregated form, as information
relating to these wastes are proprietary.

e. Benefits Methodology

This section discusses the benefit estimates for today's rule. The
section includes: i. Analysis of the universal treatment standards, ii.
hazardous waste recycling exemption, iii. groundwater pathway benefits,
and iv. air pathway benefits.

i. Analysis of the Impact of the Universal Treatment Standards

To determine the cost implications of the Universal Treatment
Standards (UTS), the Agency compared the UTS levels for each
constituent to those levels established for each constituent in each
waste code in the Land Disposal Restrictions (LDR) program to date.
The Agency assumed that there would only be a cost impact when the
levels were sufficiently different to require a change in the treatment
technology used in order to meet the new UTS levels. The comparison of
levels rendered three results: (a) No cost impact because the
constituent levels were the same, (b) no cost impact because the
constituent levels were within one order of magnitude of each other, or
(c) a potential cost impact because the constituent levels were greater
than one order of magnitude apart.
Upon identifying those waste code/constituent pairs which were
significantly different (i.e., greater than one order of magnitude),
the Agency developed an estimate of the costs/cost savings based on the
incremental difference in the previous technology required and the new
technology required to meet the specified levels.

ii. Hazardous Waste Recycling Exemption

The Agency also estimated the potential cost savings resulting from
the hazardous waste recycling exemption for K069 wastes. Obtaining
volumes data from the Biennial Reporting System (BRS), and employing
unit cost data, the Agency calculated the cost savings associated with
the change allowed in management practices. The Agency limited the
analysis to K069 wastestreams that are not mixed with other hazardous
waste codes, since these mixtures may not be amenable or legal for
recycling.

iii. Human Health Risk Reduction--Groundwater Pathway

The Agency evaluated two types of human health benefits for today's
rule: reduction in human health risks via the groundwater pathway, and
reduction in human health risks via the air pathway. EPA's analysis of
the benefits of today's rule covers TC wastes only. These wastes
dominate the other wastestreams covered by today's rule in terms of
volume. Moreover, these are the only wastes for which the Agency had
the data necessary to conduct a benefits assessment, in terms of
attributes such as constituent concentrations and facility-specific
wastestream volumes.
The fundamental assumption underlying EPA's approach for assessing
groundwater risk reduction is that Subtitle C containment is completely
effective in the short-term, i.e., over a period of about 30 years, but
that in the longer term, containment systems will fail. The benefits
analysis performed for today's rule examines this potential long-term
risk which would be avoided under today's rule (i.e., only occurring at
least 30 years into the future). The difference in risks from the
baseline to the post-regulatory condition is the measure of incremental
benefit associated with today's rule.
The basic approach involves the following steps (which are
elaborated upon in the RIA background document, which has been placed
in the docket for today's rule). (1) The Agency employed waste
concentration data from the TC Survey to represent waste
concentrations. (2) EPA calculated the mean concentration of each
constituent at each facility, weighted across the volume of all TC
wastes managed at that facility. (3) EPA calculated the risk that would
be posed by consumption of leachate, for both cancer and non-cancer
effects, at each facility. (4) EPA developed a set of dilution/
attenuation factors (DAF) to represent the effect of fate and transport
processes in a homogeneous ground-water system. For each facility, the
Agency divided the risk posed by the consumption of leachate by the DAF
(expressed as a probability distribution) to yield the risk posed by
predicted concentrations in water from hypothetical exposure wells. (5)
EPA then summed the predicted risks across all facilities to develop an
estimate of the distribution of individual risk at facilities managing
untreated TC wastes. In addition, the Agency simulated the post-
regulatory scenario, and summed the predicted risks across facilities,
and developed the incremental risk reduction attributable to today's
rule. (6) EPA subsequently developed an estimate of the potential
incremental population risk using 1990 population estimates around each
site. The Agency used standard assumptions for body weight (70 kg) and
water intake (2 liters per day) for 9 years.

v. Human Health Risk Reduction--Air Pathway

Constituents contained in TC waste, soil, and debris may be emitted
to air through volatilization and dust entrainment. Reducing the
concentrations of TC constituents through the treatment standards set
in today's rule reduces the potential for air emissions, and the risks
posed by those air emissions. The goal of the air pathway risk analysis
was to characterize baseline (pre-LDR) risk and the reduction in
baseline risk resulting from regulatory requirements in today's rule.
The Agency's basic approach for the air pathway risk analysis
involves the following steps (which are elaborated upon in the RIA
background document, which has been placed in the docket for today's
rule). (1) EPA used bulk waste concentration data from the TC Survey to
represent waste concentrations. (2) the Agency calculated the mean
concentration of each constituent at each facility, weighted across the
volume of all TC wastes managed at that facility. (3) EPA calculated
the unit area managing TC wastes. (4) EPA estimated emissions due to
volatilization and dust entrainment for each constituent at each
facility. (5) The Agency evaluated the atmospheric transport for each
constituent. EPA then estimated exposure concentrations at several
downwind points corresponding to potential exposure locations. The
Agency employed standard high-end assumptions of body weight (70 kg)
and 70-year lifetime. (6) The Agency calculated individual cancer risk
and non-cancer risk across the facilities, using the modeled exposure
assumptions. (7) EPA calculated population risk for exposed
populations. (8) The Agency then simulated the risk under the
regulatory requirements in today's rule, and determined the incremental
risk reduction.
2. Results Section

a. Volume Results

The Agency has estimated the volumes affected by today's rule. A
total of 295,000 tons per year of organic TC wastes (D018-D043) are
affected by today's rule; this volume includes 167,000 tons per year of
nonwastewaters, 94,000 tons per year of hazardous soil, and 34,000 tons
per year of hazardous debris. The volume estimates used in the capacity
analysis differ, as described above, from those estimates employed in
the regulatory analysis. See the regulatory analysis background
document for a more detailed discussion of these differences.
In addition, there are 30 tons per year of Chlorotoluene wastes
affected by today's rule. The Agency also estimates that 9,760 tons per
year of K069 waste will be affected as a result of the hazardous waste
recycling exemption.

b. Cost Results

Exhibit XVI-1 summarizes the results of the cost analysis for
today's final rule. In total, today's final rule would have an
incremental annual cost of between $194 and $219 million. The lower
bound cost estimate represents the effects of waste minimization
compliance cost savings. In addition, there is a potential cost savings
associated with the UTS standards and the hazardous waste recycling
exemption of $2.1 million per year.

Exhibit XVI-1.--Summary of Cost Impacts
------------------------------------------------------------------------
Post-
regulatory Baseline Incremental
Waste type cost cost cost
(million $/ (million (million $/
yr) $/yr) yr)
------------------------------------------------------------------------
Organic TC Wastes (D018-D043):
Nonwastewaters..................... 175 30 145
Soil............................... 52 17 35
Debris............................. 44 8 36
Waste Minimization................ .......... ........ (25)
Chlorotoluenes....................... 0.1 <0.1 <0.1
Test & Recordkeeping................. .......... ........ 3
----------------------------------
Subtotal for All Newly Regulated
Wastes.......................... 272 56 194
to 219
==================================
Previously Regulated Wastes Affected
by Rule:
K069 Recycling Wastes.............. 0 2.0 (2.0)
Cyanide Wastes (UTS Analysis)...... 66.5 66.6 (0.1)
----------------------------------
Subtotal for All Previously
Regulated Wastes................ 66.5 68.6 (2.1)
------------------------------------------------------------------------
Note: The cost impact shown for waste minimization reflects a potential
compliance cost savings, and therefore is shown as a range. See the
write up of the waste minimization results for more details.

i. Organic TC Wastes

As described above, EPA conducted a facility specific cost analysis
for those facilities managing organic TC waste. The incremental costs
for the TC wastes, presented in Exhibit XVI-1, are between $191 and
$216 million per year. Sixty-seven percent of the total cost, in the
upper bound, is for the treatment of organic TC nonwastewaters, and 16
percent and 17 percent is for the treatment of organic TC contaminated
soil and debris, respectively.

ii. Other Newly Regulated Wastes

Since current management practices show that no coke by-product
wastes are landfilled, as a result of the coke by-product listing rule
(August 18, 1992, at 57 FR 37284), EPA estimates that there are no cost
impacts associated with the treatment standards for coke by-product
wastes. The incremental cost for chlorinated toluenes is estimated to
be less than $0.1 million annually.

iii. Testing, Recordkeeping, Permit Modification Costs

The analysis of the testing requirements in today's rule estimates
incremental costs of approximately $3 million per year. The costs for
the recordkeeping requirements were estimated to be approximately
$490,000 per year. These costs are described in more detail in the
Regulatory Impact Analysis background document developed for today's
rule, which has been placed in the Agency's docket.

c. Waste Minimization

Through the methodology outlined above, the Agency analyzed the
cost implications of waste management alternatives involving waste
minimization in today's rule. The analysis shows that there is a
potential savings of $25 million per year quantifiable in comparing
current management practices to waste minimization activities which
could be implemented. The Agency presents the cost impact of today's
rule as a range from $0 to $25 million per year, representing the cost
savings possible through waste minimization activities.
In performing the waste minimization analysis, the Agency focused
on specific process for two industries for which data were available.
This approach allowed the analysis to be detailed in nature, providing
a close examination of facility compliance alternatives. However, in
doing so, the Agency believes it has underestimated the potential
savings due to waste minimization. In addition, the Agency has not
attempted to address any further source reduction, waste minimization,
or innovative technology development which may result from today's
rule.

d. Economic Impact Results

For the 14 companies with non-commercial, or captive, landfills
that receive the company's waste (from the TC Survey), only one company
would have a ratio of incremental compliance cost to cost of operations
greater than one-half percent; all other facilities would experience
even lower economic impacts resulting from today's rule.
Since no costs are associated with the treatment standards for coke
by-products, no economic impacts are expected. Based on a ratio
analysis of incremental cost to total sales, none of the chlorinated
toluene generating facilities is expected to experience significant
impacts as a result of the final rule.

e. Benefit Estimate Results

The benefit estimates for today's rule include both reduction in
risk to human health, as well as incremental cost savings. Cost savings
are estimated for the Universal Treatment Standards (UTS), cost savings
resulting from changes to the hazardous waste recycling exemptions.
Human health benefits are estimated for cancer and non-cancer risks.
However, there are some benefits which the Agency has not attempted
to quantify which are potentially attributable to today's rule. For
example, the Agency has not attempted to quantify any potential non-use
value benefits from protection of resources through treatment of
hazardous wastes.
Furthermore, the risk analysis performed by the Agency for today's
rule does not account for many other potential benefits from today's
rule. Ecological risk reduction from treatment of wastes under today's
rule has not been quantified. Nor do the Agency's air and groundwater
benefit estimates account for karst terrain, complex flow situations,
or other factors which could contribute to underestimates of benefits.
These unquantified benefits are discussed at greater length in the
regulatory impact background document for today's rule.

i. Universal Treatment Standards Analysis

The Agency's analysis of the cost impacts realized due to the
Universal Treatment Standards requiring/allowing a change in treatment
technology from that required under the existing standards produced a
cost savings of approximately $100,000 per year. The only wastes for
which the Agency found that the UTS standards required/allowed a change
in treatment were the cyanide wastes.
The Agency received a number of favorable comments on the adoption
of the UTS standards. These commenters stated that the UTS would allow
them to save much more in operation costs than the Agency has
quantified in the above analysis. One commenter stated that they would
save approximately $366,000 annually and 1736 hours per year in manhour
savings associated with the UTS for F024. And another commenter stated
that they would save approximately $740,000 per year as a result of the
UTS. A more thorough description of these cost savings is shown in the
Regulatory Impact Analysis background document developed for today's
rule, which has been placed in the Agency's docket.

ii. Hazardous Waste Recycling Exemption

The analysis performed by the Agency for the cost impacts
associated with the recycling exemption for K069 produced a savings of
approximately $2 million per year. A detailed description of the cost
savings for K069 is shown in the Regulatory Impact Analysis background
document developed for today's rule, which has been placed in the
Agency's docket.

iii. Results--Groundwater Pathway

This section presents results for the baseline and post-regulatory
risk analyses. For each case, results for individual cancer and non-
cancer risk are presented for both high end (i.e. the 90th percentile
of the distribution) and central tendency (i.e. 50th percentile of the
distribution) risk estimates. The section concludes with population
risk estimates for cancer risks.
The results, presented in full in the RIA background document which
is included in the docket for today's rule, show that the central
tendency cancer risk estimate is expected to be zero. The high-end
individual cancer risk is 4 x 10^{-7. For the post-regulatory
scenario, EPA assumed that all constituents would be treated to
universal standards. For the post-regulatory case, the central tendency
risk estimate is zero, and the high-end risk estimate is 3 x
10^{-6.
Using the distribution of individual risks, the Agency calculated
baseline and post-regulatory cancer population risks. Based on these
assumptions, EPA estimates the baseline population cancer risk to be
0.24 cases per year in the central tendency. The post-regulatory
population cancer risk is about 0.02 cases per year in the central
tendency. In other words, the regulatory option reduces 0.22 cases per
year in the central tendency.
For the non-cancer risks, the analysis shows that the 99th
percentile baseline exposure level is less than the reference dose,
using central tendency assumptions. The population risk estimates show
2000 people, in the central tendency scenario, who are exposed to non-
cancer risk above the threshold.
There are a number of limitations to the groundwater pathway
analysis. The timeframe to which these benefits are attributable begins
30 years following promulgation of the rule. The analysis does not
account for any existing regulations which would mitigate risks from
groundwater (e.g., Clean Water Act). In addition, one of the
wastestreams which contributes a large proportion of the groundwater
population risk is made up primarily of PCBs, which are not expected to
migrate any appreciable distance in groundwater. The DAF used in the
analysis was calculated based on drinking wells being within one mile
of the facility, and was not adjusted to accord with the population
estimates used in the analysis which are based on a two-mile distance.
The DAF distribution is not constituent-specific and accounts only for
homogeneous flow situations.

iv. Results--Air Pathway

This section provides results for the air pathway, for the baseline
and post-regulatory scenarios.
It should be noted that the high end scenario models hypothetical
receptors. Approximately 26 of the 35 modeled facilities (74 percent)
have individual cancer risks exceeding 10^{-6 for the high end
scenario in the baseline. For the high end scenario, the non-cancer
risk ratio exceeds one at one facility.
In the post-regulatory scenario, individual cancer risk is lowered
considerably, indicating that at most of the facilities risk is driven
by TC constituents. In the high end scenario, eight facility(s) have
risks exceeding 10^{-6. Doses of all non-carcinogens are well below
reference doses.
For the population risk estimates, the Agency determined that the
central tendency incremental benefits are approximately 0.037. For the
incremental benefits of today's rule, the Agency performed a
sensitivity analysis, described in the RIA background document, which
examines the risk implications of changing volatilization rates under
different assumptions of landfill cover and frequency of waste
placement.
There are a number of limitations to the air pathway analysis.
Facilities which were modeled in the analysis were assumed to continue
to dispose of treated waste on-site, which, for some facilities, may
not be the case. In addition, due to limitations in the model employed,
wastes were assumed to be disposed of only one time per year. A
sensitivity analysis was conducted and is included in the RIA
Background Document, which examines the effect on the emissions rate
from this assumption. Finally, only wastestreams with all the necessary
information were analyzed. This limitation could have the effect of
either under- or overestimating the risks from the air pathway.

B. Regulatory Flexibility Analysis

Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et
seq., when an agency publishes a notice of rulemaking, for a rule that
will have a significant effect on a substantial number of small
entities, the agency must prepare and make available for public comment
a regulatory flexibility analysis that considers the effect of the rule
on small entities (i.e.: small businesses, small organizations, and
small governmental jurisdictions). Under the Agency's Revised
Guidelines for Implementing The Regulatory Flexibility Act, dated May
4, 1992, the Agency committed to considering regulatory alternatives in
rulemakings when there were any economic impacts estimated on any small
entities. Previous guidance required regulatory alternatives to be
examined only when significant economic effects were estimated on a
substantial number of small entities.
In assessing the regulatory approach for dealing with small
entities in today's final rule, for both surface disposal of wastes and
underground injection control, the Agency considered two factors.
First, data on potentially affected small entities are unavailable.
Second, due to the statutory requirements of the RCRA LDR program, no
legal avenues exist for the Agency to provide relief from the LDR's for
small entities. The only relief available for small entities is the
existing small quantity generator provisions and conditionally exempt
small quantity generator exemptions found in 40 CFR 262.11-12, and
261.5, respectively. These exemptions basically prescribe 100 kilograms
(kg) per calendar month generation of hazardous waste as the limit
below which one is exempted from complying with the RCRA standards.
Given these two factors, the Agency was unable to frame a series of
small entity options from which to select the lowest cost approach;
rather, the Agency was legally bound to regulate the land disposal of
the hazardous wastes covered in today's rule without regard to the size
of the entity being regulated.

C. Paperwork Reduction Act

The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2050-0085. This rule will reduce the average reporting
burden an estimated 0.75 hours per response, due to decreased paperwork
requirements. Send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions for
reducing this burden to Chief, Information Policy Branch; EPA; 401 M
St., S.W. (Mail Code 2138); Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''

List of Subjects

40 CFR Part 148

Environmental protection, Administrative practice and procedure,
Hazardous waste, Reporting and recordkeeping requirements, Water
supply.

40 CFR Part 260

Administrative practice and procedure, Hazardous waste.

40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

40 CFR Part 264

Hazardous waste, Packaging and containers, Reporting and
recordkeeping requirements.

40 CFR Part 265

Hazardous waste, Packaging and containers.

40 CFR Part 266

Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 268

Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271

Administrative practice and procedure, Hazardous materials
transportation, Hazardous waste, Penalties, Reporting and recordkeeping
requirements.

Dated: July 29, 1994.

Carol M. Browner,
Administrator.

For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

1. The authority citation for part 148 continues to read as
follows:

Authority: Section 3004, Resource Conservation and Recovery Act,
42 U.S.C. 6901, et seq.

2. Section 148.17 is amended by redesignating paragraph (b) as (d),
redesignating paragraph (c) as (e), and by adding paragraphs (b) and
(c) to read as follows:

Sec. 148.17 Waste specific prohibitions; newly listed wastes.

* * * * *
(b) Effective December 19, 1994 the wastes specified in 40 CFR
261.32 as EPA Hazardous waste numbers K141, K142, K143, K144, K145,
K147, K148, K149, K150, and K151, are prohibited from underground
injection.
(c) Effective September 19, 1995 the wastes specified in 40 CFR
261.23 as D001 (High TOC Subcategory as specified at 40 CFR 268.40),
and in 40 CFR 261.24 as EPA Hazardous waste numbers D012, D013, D014,
D015, D016, and D017 are prohibited from underground injection.
* * * * *

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

3. The authority citation for part 260 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.

4. In Sec. 260.30, the introductory text and paragraph (b) are
revised to read as follows:

Sec. 260.30 Variances from classification as a solid waste.

In accordance with the standards and criteria in Sec. 260.31 and
the procedures in Sec. 260.33, the Administrator may determine on a
case-by-case basis that the following recycled materials are not solid
wastes:
* * * * *
(b) Materials that are reclaimed and then reused within the
original production process in which they were generated; and
* * * * *
5. In Sec. 260.31, the introductory text of both paragraph (a) and
(b), is revised to read as follows:

Sec. 260.31 Standards and criteria for variances from classification
as a solid waste.

(a) The Administrator may grant requests for a variance from
classifying as a solid waste those materials that are accumulated
speculatively without sufficient amounts being recycled if the
applicant demonstrates that sufficient amounts of the material will be
recycled or transferred for recycling in the following year. If a
variance is granted, it is valid only for the following year, but can
be renewed, on an annual basis, by filing a new application. The
Administrator's decision will be based on the following criteria:
* * * * *
(b) The Administrator may grant requests for a variance from
classifying as a solid waste those materials that are reclaimed and
then reused as feedstock within the original production process in
which the materials were generated if the reclamation operation is an
essential part of the production process. This determination will be
based on the following criteria:
* * * * *
6. In Sec. 260.32, the introductory text is revised to read as
follows:

Sec. 260.32 Variance to be classified as a boiler.

In accordance with the standards and criteria in Sec. 260.10
(definition of ``boiler''), and the procedures in Sec. 260.33, the
Administrator may determine on a case-by-case basis that certain
enclosed devices using controlled flame combustion are boilers, even
though they do not otherwise meet the definition of boiler contained in
Sec. 260.10, after considering the following criteria:
* * * * *
7. Sec. 260.33 is revised to read as follows:

Sec. 260.33 Procedures for variances from classification as a solid
waste or to be classified as a boiler.

The Administrator will use the following procedures in evaluating
applications for variances from classification as a solid waste or
applications to classify particular enclosed controlled flame
combustion devices as boilers:
(a) The applicant must apply to the Administrator for the variance.
The application must address the relevant criteria contained in
Sec. 260.31 or Sec. 260.32.
(b) The Administrator will evaluate the application and issue a
draft notice tentatively granting or denying the application.
Notification of this tentative decision will be provided by newspaper
advertisement or radio broadcast in the locality where the recycler is
located. The Administrator will accept comment on the tentative
decision for 30 days, and may also hold a public hearing upon request
or at his discretion. The Administrator will issue a final decision
after receipt of comments and after the hearing (if any).

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

8. The authority citation for Part 261 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

9. Section 261.2 is amended by revising paragraph (e)(1)(iii) to
read as follows:

Sec. 261.2 Definition of solid waste.

* * * * *
(e) * * *
(1) * * *
(iii) Returned to the original process from which they are
generated, without first being reclaimed or land disposed. The material
must be returned as a substitute for feedstock materials. In cases
where the original process to which the material is returned is a
secondary process, the materials must be managed such that there is no
placement on the land.
* * * * *

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

10. The authority citation for Part 264 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

11. In Sec. 264.1, paragraph (g)(6) is revised to read as follows:

Sec. 264.1 Purpose, scope and applicability.

* * * * *
(g) * * *
(6) The owner or operator of an elementary neutralization unit or a
wastewater treatment unit as defined in Sec. 260.10 of this chapter,
provided that if the owner or operator is diluting hazardous ignitable
(D001) wastes (other than the D001 High TOC Subcategory defined in
Sec. 268.40 of this chapter, Table Treatment Standards for Hazardous
Wastes), or reactive (D003) waste, to remove the characteristic before
land disposal, the owner/operator must comply with the requirements set
out in Sec. 264.17(b).
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

12. The authority citation for part 265 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936.

13. In Sec. 265.1, paragraph (c)(10) is revised to read as follows:

Sec. 265.1 Purpose, scope, and applicability.

* * * * *
(c) * * *
(10) The owner or operator of an elementary neutralization unit or
a wastewater treatment unit as defined in Sec. 260.10 of this chapter,
provided that if the owner or operator is diluting hazardous ignitable
(D001) wastes (other than the D001 High TOC Subcategory defined in
Sec. 268.40 of this chapter, Table Treatment Standards for Hazardous
Wastes), or reactive (D003) waste, to remove the characteristic before
land disposal, the owner/operator must comply with the requirements set
out in Sec. 265.17(b).
* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

14. The authority citation for part 266 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6934.

Subpart C--Recyclable Materials Used in a Manner Constituting
Disposal

15. In Sec. 266.23, paragraph (a) is revised to read as follows:

Sec. 266.23 Standards applicable to users of materials that are used
in a manner that constitutes disposal.

(a) Owners or operators of facilities that use recyclable materials
in a manner that constitutes disposal are regulated under all
applicable provisions of subparts A through N of parts 124, 264, 265,
268, and 270 of this chapter and the notification requirement under
section 3010 of RCRA. (These requirements do not apply to products
which contain these recyclable materials under the provisions of
Sec. 266.20(b) of this chapter.)
* * * * *

Subpart H--Hazardous Waste Burned in Boilers and Industrial
Furnaces

16. In Sec. 266.100, the introductory text in paragraphs (c)(1),
(c)(3), (c)(3)(i), and (c)(3)(ii); and paragraph (c)(3)(i)(A) are
revised to read as follows:

Sec. 266.100 Applicability

* * * * *
(c) * * *
(1) To be exempt from Secs. 266.102 through 266.111, an owner or
operator of a metal recovery furnace or mercury recovery furnace, must
comply with the following requirements, except that an owner or
operator of a lead or a nickel-chromium recovery furnace, or a metal
recovery furnace that burns baghouse bags used to capture metallic
dusts emitted by steel manufacturing, must comply with the requirements
of paragraph (c)(3) of this section:
* * * * *
(3) To be exempt from Secs. 266.102 through 266.111, an owner or
operator of a lead or nickel-chromium or mercury recovery furnace, or a
metal recovery furnace that burns baghouse bags used to capture
metallic dusts emitted by steel manufacturing, must provide a one-time
written notice to the Director identifying each hazardous waste burned
and specifying whether the owner or operator claims an exemption for
each waste under this paragraph or paragraph (c)(1) of this section.
The owner or operator must comply with the requirements of paragraph
(c)(1) of this section for those wastes claimed to be exempt under that
paragraph and must comply with the requirements below for those wastes
claimed to be exempt under this paragraph (c)(3).
(i) The hazardous wastes listed in appendices XI, XII, and XIII,
part 266, and baghouse bags used to capture metallic dusts emitted by
steel manufacturing are exempt from the requirements of paragraph
(c)(1) of this section, provided that:
(A) A waste listed in appendix IX of this part must contain
recoverable levels of lead, a waste listed in appendix XII of this part
must contain recoverable levels of nickel or chromium, a waste listed
in appendix XIII of this part must contain recoverable levels of
mercury and contain less than 500 ppm of 40 CFR part 261, appendix VIII
organic constituents, and baghouse bags used to capture metallic dusts
emitted by steel manufacturing must contain recoverable levels of
metal; and
* * * * *
(ii) The Director may decide on a case-by-case basis that the toxic
organic constituents in a material listed in appendix XI, XII, or XIII
of this part that contains a total concentration of more than 500 ppm
toxic organic compounds listed in appendix VIII, part 261 of this
chapter, may pose a hazard to human health and the environment when
burned in a metal recovery furnace exempt from the requirements of this
subpart. In that situation, after adequate notice and opportunity for
comment, the metal recovery furnace will become subject to the
requirements of this subpart when burning that material. In making the
hazard determination, the Director will consider the following factors:
* * * * *

Appendix XIII to Part 266 [Added]

17. Appendix XIII is added to read as follows:

Appendix XIII to Part 266--Mercury Bearing Wastes That May Be Processed
in Exempt Mercury Recovery Units

These are exempt mercury-bearing materials with less than 500
ppm of 40 CFR Part 261, appendix VIII organic constituents when
generated by manufacturers or users of mercury or mercury products.

1. Activated carbon
2. Decomposer graphite
3. Wood
4. Paper
5. Protective clothing
6. Sweepings
7. Respiratory cartridge filters
8. Cleanup articles
9. Plastic bags and other contaminated containers
10. Laboratory and process control samples
11. K106 and other wastewater treatment plant sludge and filter cake
12. Mercury cell sump and tank sludge
13. Mercury cell process solids
14. Recoverable levels or mercury contained in soil

PART 268--LAND DISPOSAL RESTRICTIONS

18. The authority citation for Part 268 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart A--General

19. In Sec. 268.1, paragraphs (c)(3)(ii), (e)(4), and (e)(5) are
revised, and paragraph (c)(3)(iii) is added, to read as follows:

Sec. 268.1 Purpose, scope and applicability.

* * * * *
(c) * * *
(3) * * *
(ii) Do not exhibit any prohibited characteristic of hazardous
waste at the point of injection; and
(iii) If at the point of generation the injected wastes include
D001 High TOC subcategory wastes or D012-D017 pesticide wastes that are
prohibited under Sec. 148.17(c) of this chapter, those wastes have been
treated to meet the treatment standards of Sec. 268.40 before
injection.
* * * * *
(e) * * *
(4) De minimis losses to wastewater treatment systems of commercial
chemical product or chemical intermediates that are ignitable (D001),
corrosive (D002), or are organic constituents that exhibit the
characteristic of toxicity (D012-D043), and that contain underlying
hazardous constituents as defined in Sec. 268.2(i), are not considered
to be prohibited wastes. De minimis is defined as losses from normal
material handling operations (e.g. spills from the unloading or
transfer of materials from bins or other containers, leaks from pipes,
valves or other devices used to transfer materials); minor leaks of
process equipment, storage tanks or containers; leaks from well-
maintained pump packings and seals; sample purgings; and relief device
discharges; discharges from safety showers and rinsing and cleaning of
personal safety equipment; and rinsate from empty containers or from
containers that are rendered empty by that rinsing; or
(5) Land disposal prohibitions for hazardous characteristic wastes
do not apply to laboratory wastes displaying the characteristic of
ignitability (D001), corrosivity (D002), or organic toxicity (D012--
D043), that are mixed with other plant wastewaters at facilities whose
ultimate discharge is subject to regulation under the CWA (including
wastewaters at facilities which have eliminated the discharge of
wastewater), provided that the annualized flow of laboratory wastewater
into the facility's headworks does not exceed one per cent, or provided
that the laboratory wastes' combined annualized average concentration
does not exceed one part per million in the facility's headworks.
20. In Sec. 268.2, paragraphs (g) and (i) are revised to read as
follows:

Sec. 268.2 Definitions applicable in this part.

* * * * *
(g) Debris means solid material exceeding a 60 mm particle size
that is intended for disposal and that is: A manufactured object; or
plant or animal matter; or natural geologic material. However, the
following materials are not debris: Any material for which a specific
treatment standard is provided in Subpart D, Part 268, namely lead acid
batteries, cadmium batteries, and radioactive lead solids; Process
residuals such as smelter slag and residues from the treatment of
waste, wastewater, sludges, or air emission residues; and Intact
containers of hazardous waste that are not ruptured and that retain at
least 75% of their original volume. A mixture of debris that has not
been treated to the standards provided by Sec. 268.45 and other
material is subject to regulation as debris if the mixture is comprised
primarily of debris, by volume, based on visual inspection.
* * * * *
(i) Underlying hazardous constituent means any constituent listed
in Sec. 268.48, Table UTS--Universal Treatment Standards, except zinc,
which can reasonably be expected to be present at the point of
generation of the hazardous waste, at a concentration above the
constituent-specific UTS treatment standard.
21. Section 268.7 is amended by revising paragraphs (a) and
(b)(4)(ii), and by adding paragraph (b)(5)(iv) to read as follows:

Sec. 268.7 Waste analysis and recordkeeping.

(a) Except as specified in Sec. 268.32, if a generator's waste is
listed in 40 CFR part 261, subpart D, the generator must test his
waste, or test an extract using test method 1311 (the Toxicity
Characteristic Leaching Procedure, described in ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods,'' EPA Publication
SW-846 as incorporated by reference in Sec. 260.11 of this chapter), or
use knowledge of the waste, to determine if the waste is restricted
from land disposal under this part. Except as specified in Sec. 268.32,
if a generator's waste exhibits one or more of the characteristics set
out at 40 CFR part 261, subpart C, the generator must test an extract
using test method 1311 (the Toxicity Characteristic Leaching Procedure,
described in ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods'' (SW-846)), or use knowledge of the waste, to
determine if the waste is restricted from land disposal under this
Part. If the generator determines that his waste exhibits the
characteristic of ignitability (D001) (and is not in the High TOC
Ignitable Liquids Subcategory or is not treated by CMBST or RORGS of
Sec. 268.42, Table 1), or the characteristic of corrosivity (D002), and
is prohibited under Sec. 268.37; and/or the characteristic of organic
toxicity (D012-D043), and is prohibited under Sec. 268.38, the
generator must determine the underlying hazardous constituents (as
defined in Sec. 268.2, in the D001, D002, or D012-D043 wastes.
(1) If a generator determines that he is managing a restricted
waste under this part and the waste does not meet the applicable
treatment standards set forth in Subpart D of this part or exceeds the
applicable prohibition levels set forth in Sec. 268.32 or RCRA section
3004(d), with each shipment of waste the generator must notify the
treatment or storage facility in writing of the appropriate treatment
standards set forth in Subpart D of this part and any applicable
prohibition levels set forth in Sec. 268.32 or RCRA section 3004(d).
The notice must include the following information:
(i) EPA Hazardous Waste Number;
(ii) The waste constituents that the treater will monitor, if
monitoring will not include all regulated constituents, for wastes
F001-F005, F039, D001, D002, and D012-D043. Generators must also
include whether the waste is a nonwastewater or wastewater (as defined
in Sec. 268.2(d) and (f), and indicate the subcategory of the waste
(such as ``D003 reactive cyanide''), if applicable;
(iii) The manifest number associated with the shipment of waste;
(iv) For hazardous debris when using the alternative treatment
technologies provided by Sec. 268.45:
(A) The contaminants subject to treatment, as described in
Sec. 268.45(b); and
(B) An indication that these contaminants are being treated to
comply with Sec. 268.45.
(v) For hazardous debris when using the treatment standards for the
contaminating waste(s) in Sec. 268.40: the requirements described in
paragraphs (a)(1) (i), (ii), (iii), and (vi) of this section.
(2) If a generator determines that he is managing a restricted
waste under this Part, and determines that the waste can be land
disposed without further treatment, with each shipment of waste he must
submit, to the treatment, storage, or land disposal facility, a notice
and a certification stating that the waste meets the applicable
treatment standards set forth in subpart D of this part and the
applicable prohibition levels set forth in Sec. 268.32 or RCRA section
3004(d). Generators of hazardous debris that is excluded from the
definition of hazardous waste under Sec. 261.3(e)(2) of this chapter
(i.e., debris that the Director has determined does not contain
hazardous waste), however, are not subject to these notification and
certification requirements.
(i) The notice must include the following information:
(A) EPA Hazardous Waste Number;
(B) The waste constituents that the treater will monitor, if
monitoring will not include all regulated constituents, for wastes
F001-F005, F039, D001, D002, and D012-D043. Generators must also
include whether the waste is a nonwastewater or wastewater (as defined
in Sec. 268.2 (d) and (f)), and indicate the subcategory of the waste
(such as ``D003 reactive cyanide''), if applicable;
(C) The manifest number associated with the shipment of waste;
(D) Waste analysis data, where available.
(ii) The certification must be signed by an authorized
representative and must state the following:

I certify under penalty of law that I personally have examined
and am familiar with the waste through analysis and testing or
through knowledge of the waste to support this certification that
the waste complies with the treatment standards specified in 40 CFR
Part 268 Subpart D and all applicable prohibitions set forth in 40
CFR 268.32 or RCRA section 3004(d). I believe that the information I
submitted is true, accurate and complete. I am aware that there are
significant penalties for submitting a false certification,
including the possibility of a fine and imprisonment.

(3) If a generator's waste is subject to an exemption from a
prohibition on the type of land disposal method utilized for the waste
(such as, but not limited to, a case-by-case extension under
Sec. 268.5, an exemption under Sec. 268.6, or a nationwide capacity
variance under subpart C of this part), with each shipment of waste he
must submit a notice to the facility receiving his waste stating that
the waste is not prohibited from land disposal. The notice must include
the following information:
(i) EPA Hazardous Waste Number;
(ii) The waste constituents that the treater will monitor, if
monitoring will not include all regulated constituents, for wastes
F001-F005, F039, D001, D002, and D012-D043. Generators must also
include whether the waste is a nonwastewater or wastewater (as defined
in Sec. 268.2 (d) and (f)), and indicate the subcategory of the waste
(such as ``D003 reactive cyanide''), if applicable;
(iii) The manifest number associated with the shipment of waste;
(iv) Waste analysis data, where available;
(v) For hazardous debris when using the alternative treatment
technologies provided by Sec. 268.45:
(A) The contaminants subject to treatment, as described in
Sec. 268.45(b); and
(B) An indication that these contaminants are being treated to
comply with Sec. 268.45.
(vi) For hazardous debris when using the treatment standards for
the contaminating waste(s) in Sec. 268.40: the requirements described
in paragraphs (a)(1) (i), (ii), (iii), and (vi) of this section.
(4) If a generator is managing prohibited waste in tanks,
containers, or containment buildings regulated under 40 CFR 262.34, and
is treating such waste in such tanks, containers, or containment
buildings to meet applicable treatment standards under subpart D of
this part, the generator must develop and follow a written waste
analysis plan which describes the procedures the generator will carry
out to comply with the treatment standards. (Generators treating
hazardous debris under the alternative treatment standards of Table 1,
Sec. 268.45, however, are not subject to these waste analysis
requirements.) The plan must be kept on site in the generator's
records, and the following requirements must be met:
(i) The waste analysis plan must be based on a detailed chemical
and physical analysis of a representative sample of the prohibited
waste(s) being treated, and contain all information necessary to treat
the waste(s) in accordance with the requirements of this Part,
including the selected testing frequency.
(ii) Such plan must be filed with the EPA Regional Administrator
(or his designated representative) or State authorized to implement
Part 268 requirements a minimum of 30 days prior to the treatment
activity, with delivery verified.
(iii) Wastes shipped off-site pursuant to this paragraph must
comply with the notification requirements of Sec. 268.7(a)(2).
(5) If a generator determines whether the waste is restricted based
solely on his knowledge of the waste, all supporting data used to make
this determination must be retained on-site in the generator's files.
If a generator determines whether the waste is restricted based on
testing this waste or an extract developed using the test method
described in Appendix I of this part, all waste analysis data must be
retained on-site in the generator's files.
(6) If a generator determines that he is managing a restricted
waste that is excluded from the definition of hazardous or solid waste
or exempt from Subtitle C regulation, under 40 CFR 261.2 through 261.6
subsequent to the point of generation, he must place a one-time notice
stating such generation, subsequent exclusion from the definition of
hazardous or solid waste or exemption from RCRA Subtitle C regulation,
and the disposition of the waste, in the facility's file.
(7) Generators must retain on-site a copy of all notices,
certifications, demonstrations, waste analysis data, and other
documentation produced pursuant to this section for at least five years
from the date that the waste that is the subject of such documentation
was last sent to on-site or off-site treatment, storage, or disposal.
The five year record retention period is automatically extended during
the course of any unresolved enforcement action regarding the regulated
activity or as requested by the Administrator. The requirements of this
paragraph apply to solid wastes even when the hazardous characteristic
is removed prior to disposal, or when the waste is excluded from the
definition of hazardous or solid waste under 40 CFR 261.2 through
261.6, or exempted from RCRA Subtitle C regulation, subsequent to the
point of generation.
(8) If a generator is managing a lab pack waste and wishes to use
the alternative treatment standard under Sec. 268.42(c), with each
shipment of waste the generator must submit a notice to the treatment
facility in accordance with paragraph (a)(1) of this section, except
that underlying hazardous constituents need not be determined. The
generator must also comply with the requirements in paragraphs (a)(5)
and (a)(6) of this section and must submit the following certification,
which must be signed by an authorized representative:

I certify under penalty of law that I personally have examined
and am familiar with the waste and that the lab pack contains only
wastes which have not been excluded under appendix IV to 40 CFR part
268 or solid wastes not subject to regulation under 40 CFR part 261.
I am aware that there are significant penalties for submitting a
false certification, including the possibility of fine or
imprisonment.

(9) [Reserved]
(10) Small quantity generators with tolling agreements pursuant to
40 CFR 262.20(e) must comply with the applicable notification and
certification requirements of paragraph (a) of this section for the
initial shipment of the waste subject to the agreement. Such generators
must retain on-site a copy of the notification and certification,
together with the tolling agreement, for at least three years after
termination or expiration of the agreement. The three-year record
retention period is automatically extended during the course of any
unresolved enforcement action regarding the regulated activity or as
requested by the Administrator.
(b) * * *
(4) * * *
(ii) The waste constituents to be monitored, if monitoring will not
include all regulated constituents, for wastes F001-F005, F039, D001,
D002, and D012-D043. Generators must also include whether the waste is
a nonwastewater or wastewater (as defined in Sec. 268.2 (d) and (f),
and indicate the subcategory of the waste (such as D003 reactive
cyanide), if applicable.
* * * * *
(5) * * *
(iv) For characteristic wastes D001, D002, and D012-D043 that are:
subject to the treatment standards in Sec. 268.40 (other than those
expressed as a required method of treatment); that are reasonably
expected to contain underlying hazardous constituents as defined in
Sec. 268.2(i); are treated on-site to remove the hazardous
characteristic; and are then sent off-site for treatment of underlying
hazardous constituents, the certification must state the following:

I certify under penalty of law that the waste has been treated
in accordance with the requirements of 40 CFR 268.40 to remove the
hazardous characteristic. This decharacterized waste contains
underlying hazardous constituents that require further treatment to
meet universal treatment standards. I am aware that there are
significant penalties for submitting a false certification,
including the possibility of fine and imprisonment.
* * * * *
22. In Sec. 268.9, paragraph (a), (d)(1)(i), and (d)(1)(ii) are
revised, (d)(1)(iii) is removed and (d)(2) (i) and (ii) are added to
read as follows:

Sec. 268.9 Special rules regarding wastes that exhibit a
characteristic.

(a) The initial generator of a solid waste must determine each EPA
Hazardous Waste Number (waste code) applicable to the waste in order to
determine the applicable treatment standards under subpart D of this
part. For purposes of part 268, the waste will carry the waste code for
any applicable listing under 40 CFR part 261, subpart D. In addition,
the waste will carry one or more of the waste codes under 40 CFR part
261, subpart C, where the waste exhibits a characteristic, except in
the case when the treatment standard for the waste code listed in 40
CFR part 261, subpart D operates in lieu of the treatment standard for
the waste code under 40 CFR part 261, subpart C, as specified in
paragraph (b) of this section. If the generator determines that his
waste displays the characteristic of ignitability (D001) (and is not in
the High TOC Ignitable Liquids Subcategory or is not treated by CMBST,
or RORGS), or the waste code listed in 40 CFR part 261, subpart D
operates in lieu of the treatment standard for the waste code under 40
CFR part 261, subpart C, as specified in paragraph (b) of this section.
If the generator determines that his waste displays the characteristic
of ignitability (D001) (and is not in the High TOC Ignitable Liquids
Subcategory or is not treated by CMBST, or RORGS), or the
characteristic of corrosivity (D002), and is prohibited under
Sec. 268.37; or that his waste displays the characteristic of toxicity
(D012-D043), and is prohibited under Sec. 268.38, the generator must
determine the underlying hazardous constituents (as defined in
Sec. 268.2), in the D001, D002, or D012-D043 wastes.
* * * * *
(d) * * *
(1) * * *
(i) Name and address of the RCRA Subtitle D facility receiving the
waste shipment; and
(ii) A description of the waste as initially generated, including
the applicable EPA Hazardous Waste Number(s), treatability group(s),
and underlying hazardous constituents (as defined in Sec. 268.2(i) in
D001 and D002 wastes prohibited under Sec. 268.37, or D012-D043 wastes
under Sec. 268.38.
(2) * * *
(i) If treatment removes the characteristic but does not treat
underlying hazardous constituents, then the certification found in
Sec. 268.7 (b)(5)(v) apply.
(ii) [Reserved]

Subpart C--Prohibitions on Land Disposal

23. In subpart C, Sec. 268.38 is added to read as follows:

Sec. 268.38 Waste specific prohibitions--newly identified organic
toxicity characteristic wastes and newly listed coke by-product and
chlorotoluene production wastes.

(a) Effective December 19, 1994, the wastes specified in 40 CFR
261.32 as EPA Hazardous Waste numbers K141, K142, K143, K144, K145,
K147, K148, K149, K150, and K151 are prohibited from land disposal. In
addition, debris contaminated with EPA Hazardous Waste numbers F037,
F038, K107-K112, K117, K118, K123-K126, K131, K132, K136, U328, U353,
U359, and soil and debris contaminated with D012-D043, K141-K145, and
K147-K151 are prohibited from land disposal. The following wastes that
are specified in 40 CFR 261.24, Table 1 as EPA Hazardous Waste numbers:
D012, D013, D014, D015, D016, D017, D018, D019, D020, D021, D022, D023,
D024, D025, D026, D027, D028, D029, D030, D031, D032, D033, D034, D035,
D036, D037, D038, D039, D040, D041, D042, D043 that are not
radioactive, or that are managed in systems other than those whose
discharge is regulated under the Clean Water Act (CWA), or that are
zero dischargers that do not engage in CWA-equivalent treatment before
ultimate land disposal, or that are injected in Class I deep wells
regulated under the Safe Drinking Water Act (SDWA), are prohibited from
land disposal. CWA-equivalent treatment means biological treatment for
organics, alkaline chlorination or ferrous sulfate precipitation for
cyanide, precipitation/ sedimentation for metals, reduction of
hexavalent chromium, or other treatment technology that can be
demonstrated to perform equally or better than these technologies.
(b) On September 19, 1996, radioactive wastes that are mixed with
D018-D043 that are managed in systems other than those whose discharge
is regulated under the Clean Water Act (CWA), or that inject in Class I
deep wells regulated under the Safe Drinking Water Act (SDWA), or that
are zero dischargers that engage in CWA-equivalent treatment before
ultimate land disposal, are prohibited from land disposal. CWA-
equivalent treatment means biological treatment for organics, alkaline
chlorination or ferrous sulfate precipitation for cyanide,
precipitation/ sedimentation for metals, reduction of hexavalent
chromium, or other treatment technology that can be demonstrated to
perform equally or greater than these technologies. Radioactive wastes
mixed with K141-K145, and K147-K151 are also prohibited from land
disposal. In addition, soil and debris contaminated with these
radioactive mixed wastes are prohibited from land disposal.
(c) Between December 19, 1994 and September 19, 1996, the wastes
included in paragraphs (b) of this section may be disposed in a
landfill or surface impoundment, only if such unit is in compliance
with the requirements specified in Sec. 268.5(h)(2) of this Part.
(d) The requirements of paragraphs (a), (b), and (c) of this
section do not apply if:
(1) The wastes meet the applicable treatment standards specified in
Subpart D of this part;
(2) Persons have been granted an exemption from a prohibition
pursuant to a petition under Sec. 268.6, with respect to those wastes
and units covered by the petition;
(3) The wastes meet the applicable alternate treatment standards
established pursuant to a petition granted under Sec. 268.44;
(4) Persons have been granted an extension to the effective date of
a prohibition pursuant to Sec. 268.5, with respect to these wastes
covered by the extension.
(e) To determine whether a hazardous waste identified in this
section exceeds the applicable treatment standards specified in
Sec. 268.40, the initial generator must test a sample of the waste
extract or the entire waste, depending on whether the treatment
standards are expressed as concentrations in the waste extract or the
waste, or the generator may use knowledge of the waste. If the waste
contains constituents in excess of the applicable Subpart D levels, the
waste is prohibited from land disposal, and all requirements of part
268 are applicable, except as otherwise specified.

Subpart D--Treatment Standards

24. Section 268.40 is revised to read as follows:

Sec. 268.40 Applicability of Treatment Standards.

(a) A waste identified in the table ``Treatment Standards for
Hazardous Wastes'' may be land disposed only if it meets the
requirements found in the table. For each waste, the table identifies
one of three types of treatment standard requirements:
(1) All hazardous constituents in the waste or in the treatment
residue must be at or below the values found in the table for that
waste (``total waste standards''); or
(2) The hazardous constituents in the extract of the waste or in
the extract of the treatment residue must be at or below the values
found in the table (``waste extract standards''); or
(3) The waste must be treated using the technology specified in
the table (``technology standard''), which are described in detail in
Sec. 268.42, Table 1--Technology Codes and Description of Technology-
Based Standards.
(b) For wastewaters, compliance with concentration level standards
is based on maximums for any one day, except for D004 through D011
wastes for which the previously promulgated treatment standards based
on grab samples remain in effect. For all nonwastewaters, compliance
with concentration level standards is based on grab sampling. For
wastes covered by the waste extract standards, the test Method 1311,
the Toxicity Characteristic Leaching Procedure found in ``Test Methods
for Evaluating Solid Waste, Physical/Chemical Methods'', EPA
Publication SW-846, as incorporated by reference in Sec. 260.11, must
be used to measure compliance. An exception is made for D004 and D008,
for which either of two test methods may be used: Method 1311, or
Method 1310, the Extraction Procedure Toxicity Test. For wastes covered
by a technology standard, the wastes may be land disposed after being
treated using that specified technology or an equivalent treatment
technology approved by the Administrator under the procedures set forth
in Sec. 268.42(b).
(c) When wastes with differing treatment standards for a
constituent of concern are combined for purposes of treatment, the
treatment residue must meet the lowest treatment standard for the
constituent of concern.
(d) Notwithstanding the prohibitions specified in paragraph (a) of
this section, treatment and disposal facilities may demonstrate (and
certify pursuant to 40 CFR 268.7(b)(5)) compliance with the treatment
standards for organic constituents specified by a footnote in the table
``Treatment Standards for Hazardous Wastes'' in this section, provided
the following conditions are satisfied:
(1) The treatment standards for the organic constituents were
established based on incineration in units operated in accordance with
the technical requirements of 40 CFR part 264, subpart O, or based on
combustion in fuel substitution units operating in accordance with
applicable technical requirements;
(2) The treatment or disposal facility has used the methods
referenced in paragraph (d)(1) of this section to treat the organic
constituents; and
(3) The treatment or disposal facility may demonstrate compliance
with organic constituents if good-faith analytical efforts achieve
detection limits for the regulated organic constituents that do not
exceed the treatment standards specified in this section by an order of
magnitude.
(e) For characteristic wastes (D001, D002, and D012-D043 that are
subject to treatment standards in the following table ``Treatment
Standards for Hazardous Wastes,'' all underlying hazardous constituents
(as defined in Sec. 268.2(i)) must meet Universal Treatment Standards,
found in Sec. 268.48, Table UTS, prior to land disposal.
(f) The treatment standards for F001-F005 nonwastewater
constituents carbon disulfide, cyclohexanone, and/or methanol apply to
wastes which contain only one, two, or three of these constituents.
Compliance is measured for these constituents in the waste extract from
test Method 1311, the Toxicity Characteristic Leaching Procedure found
in ``Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods'', EPA Publication SW-846, as incorporated by reference in
Sec. 260.11. If the waste contains any of these three constituents
along with any of the other 25 constituents found in F001-F005, then
compliance with treatment standards for carbon disulfide,
cyclohexanone, and/or methanol are not required.

Treatment Standards for Hazardous Wastes

Note: The treatment standards that heretofore appeared in tables
in Secs. 268.41, 268.42, and 268.43 of this part have been
consolidated into the table ``Treatment Standards for Hazardous
Wastes'' in this section.

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25. Section 268.41 is revised to read as follows:

Sec. 268.41 Treatment standards expressed as concentrations in waste
extract.

For the requirements previously found in this section and for
treatment standards in Table CCWE--Constituent Concentrations in Waste
Extracts, refer to Sec. 268.40.
26. Section 268.42 is amended by removing Table 2 and Table 3;
revising paragraphs (a) introductory text, (c)(2), and (d); adding a
note before paragraph (a); and adding the entry ``CMBST'' into Table
1.--Technology Codes and Description of Technology-Based Standards in
alphabetical order, to read as follows:

Sec. 268.42 Treatment standards expressed as specified technologies.

Note: For the requirements previously found in this section in
Table 2--Technology-Based Standards By RCRA Waste Code, and Table
3--Technology-Based Standards for Specific Radioactive Hazardous
Mixed Waste, refer to Sec. 268.40.

(a) The following wastes in paragraphs (a)(1) and (a)(2) of this
section and in the table in Sec. 268.40 ``Treatment Standards for
Hazardous Wastes,'' for which standards are expressed as a treatment
method rather than a concentration level, must be treated using the
technology or technologies specified in paragraphs (a)(1) and (a)(2)
and Table 1 of this section.
* * * * *

Table 1.--Technology Codes and Description of Technology-Based Standards

------------------------------------------------------------------------
Technology code Description of technology-based standards
------------------------------------------------------------------------
*****
CMBST........... Combustion in incinerators, boilers, or industrial
furnaces operated in accordance with the applicable
requirements of 40 CFR part 264, subpart O, or 40 CFR
part 266, subpart H.
*****

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

* * * * *
(c) * * *
(2) The lab pack does not contain any of the wastes listed in
Appendix IV to part 268.
* * * * *
(d) Radioactive hazardous mixed wastes are subject to the treatment
standards in Sec. 268.40. Where treatment standards are specified for
radioactive mixed wastes in the Table of Treatment Standards, those
treatment standards will govern. Where there is no specific treatment
standard for radioactive mixed waste, the treatment standard for the
hazardous waste (as designated by EPA waste code) applies. Hazardous
debris containing radioactive waste is subject to the treatment
standards specified in Sec. 268.45.
28. Section 268.43 is revised to read as follows:

Sec. 268.43 Treatment standards expressed as waste concentrations.

For the requirements previously found in this section and for
treatment standards in Table CCW--Constituent Concentrations in Wastes,
refer to Sec. 268.40.
29. Section 268.45(b)(2) is revised to read as follows:

Sec. 268.45 Treatment standards for hazardous debris.

* * * * *
(b) * * *
(2) Debris contaminated with listed waste. The contaminants subject
to treatment for debris that is contaminated with a prohibited listed
hazardous waste are those constituents or wastes for which treatment
standards are established for the waste under Sec. 268.40.
30. Section 268.46 is revised to read as follows:

Sec. 268.46 Alternative treatment standards based on HTMR.

For the treatment standards previously found in this section, refer
to Sec. 268.40.
31. In Subpart D, Sec. 268.48 is added to read as follows:

Sec. 268.48 Universal Treatment Standards

(a) Table UTS identifies the hazardous constituents, along with the
nonwastewater and wastewater treatment standard levels, that are used
to regulate most prohibited hazardous wastes with numerical limits. For
determining compliance with treatment standards for underlying
hazardous constituents as defined in Sec. 268.2(i), these treatment
standards may not be exceeded. Compliance with these treatment
standards is measured by an analysis of grab samples, unless otherwise
noted in the following Table UTS.

Sec. 268.48 Table UTS--Universal Treatment Standards
----------------------------------------------------------------------------------------------------------------
Wastewater Nonwastewater standard.
standard. Concentration in mg/kg\3\
Regulated constituent--common name CAS\1\ No. Concentration unless noted as ``mg/l
in mg/\2\ TCLP''
----------------------------------------------------------------------------------------------------------------
Acenaphthylene....................................... 208-96-8 0.059 3.4
Acenaphthene......................................... 83-32-9 0.059 3.4
Acetone.............................................. 67-64-1 0.28 160
Acetonitrile......................................... 75-05-8 5.6 1.8
Acetophenone......................................... 96-86-2 0.010 9.7
2-Acetylaminofluorene................................ 53-96-3 0.059 140
Acrolein............................................. 107-02-8 0.29 NA
Acrylamide........................................... 79-06-1 19 23
Acrylonitrile........................................ 107-13-1 0.24 84
Aldrin............................................... 309-00-2 0.021 0.066
4-Aminobiphenyl...................................... 92-67-1 0.13 NA
Aniline.............................................. 62-53-3 0.81 14
Anthracene........................................... 120-12-7 0.059 3.4
Aramite.............................................. 140-57-8 0.36 NA
alpha-BHC............................................ 319-84-6 0.00014 0.066
beta-BHC............................................. 319-85-7 0.00014 0.066
delta-BHC............................................ 319-86-8 0.023 0.066
gamma-BHC............................................ 58-89-9 0.0017 0.066
Benzene.............................................. 71-43-2 0.14 10
Benz(a)anthracene.................................... 56-55-3 0.059 3.4
Benzal chloride...................................... 98-87-3 0.055 6.0
Benzo(b)fluoranthene (difficult to distinguish from 205-99-2 0.11 6.8
benzo(k)fluoranthene).
Benzo(k)fluoranthene (difficult to distinguish from 207-08-9 0.11 6.8
benzo(b)fluoranthene).
Benzo(g,h,i)perylene................................. 191-24-2 0.0055 1.8
Benzo(a)pyrene....................................... 50-32-8 0.061 3.4
Bromodichloromethane................................. 75-27-4 0.35 15
Methyl bromide (Bromomethane)........................ 74-83-9 0.11 15
4-Bromophenyl phenyl ether........................... 101-55-3 0.055 15
n-Butyl alcohol...................................... 71-36-3 5.6 2.6
Butyl benzyl phthalate............................... 85-68-7 0.017 28
2-sec-Butyl-4,6-dinitrophenol (Dinoseb).............. 88-85-7 0.066 2.5
Carbon disulfide..................................... 75-15-0 3.8 4.8 mg/l TCLP
Carbon tetrachloride................................. 56-23-5 0.057 6.0
Chlordane (alpha and gamma isomers).................. 57-74-9 0.0033 0.26
p-Chloroaniline...................................... 106-47-8 0.46 16
Chlorobenzene........................................ 108-90-7 0.057 6.0
Chlorobenzilate...................................... 510-15-6 0.10 NA
2-Chloro-1,3-butadiene............................... 126-99-8 0.057 0.28
Chlorodibromomethane................................. 124-48-1 0.057 15
Chloroethane......................................... 75-00-3 0.27 6.0
bis(2-Chloroethoxy)methane........................... 111-91-1 0.036 7.2
bis(2-Chloroethyl)ether.............................. 111-44-4 0.033 6.0
Chloroform........................................... 67-66-3 0.046 6.0
bis(2-Chloroisopropyl)ether.......................... 108-60-1 0.055 7.2
p-Chloro-m-cresol.................................... 59-50-7 0.018 14
2-Chloroethyl vinyl ether............................ 110-75-8 0.062 NA
Chloromethane (Methyl chloride)...................... 74-87-3 0.19 30
2-Chloronaphthalene.................................. 91-58-7 0.055 5.6
2-Chlorophenol....................................... 95-57-8 0.044 5.7
3-Chloropropylene.................................... 107-05-1 0.036 30
Chrysene............................................. 218-01-9 0.059 3.4
o-Cresol............................................. 95-48-7 0.11 5.6
m-Cresol (difficult to distinguish from p-cresol).... 108-39-4 0.77 5.6
p-Cresol (difficult to distinguish from m-cresol).... 106-44-5 0.77 5.6
Cyclohexanone........................................ 108-94-1 0.36 0.75 mg/l TCLP
1,2-Dibromo-3-chloropropane.......................... 96-12-8 0.11 15
Ethylene dibromide (1,2-Dibromoethane)............... 106-93-4 0.028 15
Dibromomethane....................................... 74-95-3 0.11 15
2,4-D (2,4-Dichlorophenoxyacetic acid)............... 94-75-7 0.72 10
o,p'-DDD............................................. 53-19-0 0.023 0.087
p,p'-DDD............................................. 72-54-8 0.023 0.087
o,p'-DDE............................................. 3424-82-6 0.031 0.087
p,p'-DDE............................................. 72-55-9 0.031 0.087
o,p'-DDT............................................. 789-02-6 0.0039 0.087
p,p'-DDT............................................. 50-29-3 0.0039 0.087
Dibenz(a,h)anthracene................................ 53-70-3 0.055 8.2
Dibenz(a,e)pyrene.................................... 192-65-4 0.061 NA
m-Dichlorobenzene.................................... 541-73-1 0.036 6.0
o-Dichlorobenzene.................................... 95-50-1 0.088 6.0
p-Dichlorobenzene.................................... 106-46-7 0.090 6.0
Dichlorodifluoromethane.............................. 75-71-8 0.23 7.2
1,1-Dichloroethane................................... 75-34-3 0.059 6.0
1,2-Dichloroethane................................... 107-06-2 0.21 6.0
1,1-Dichloroethylene................................. 75-35-4 0.025 6.0
trans-1,2-Dichloroethylene........................... 156-60-5 0.054 30
2,4-Dichlorophenol................................... 120-83-2 0.044 14
2,6-Dichlorophenol................................... 87-65-0 0.044 14
1,2-Dichloropropane.................................. 78-87-5 0.85 18
cis-1,3-Dichloropropylene............................ 10061-01-5 0.036 18
trans-1,3-Dichloropropylene.......................... 10061-02-6 0.036 18
Dieldrin............................................. 60-57-1 0.017 0.13
Diethyl phthalate.................................... 84-66-2 0.20 28
2-4-Dimethyl phenol.................................. 105-67-9 0.036 14
Dimethyl phthalate................................... 131-11-3 0.047 28
Di-n-butyl phthalate................................. 84-74-2 0.057 28
1,4-Dinitrobenzene................................... 100-25-4 0.32 2.3
4,6-Dinitro-o-cresol................................. 534-52-1 0.28 160
2,4-Dinitrophenol.................................... 51-28-5 0.12 160
2,4-Dinitrotoluene................................... 121-14-2 0.32 140
2,6-Dinitrotoluene................................... 606-20-2 0.55 28
Di-n-octyl phthalate................................. 117-84-0 0.017 28
p-Dimethylaminoazobenzene............................ 60-11-7 0.13 NA
Di-n-propylnitrosamine............................... 621-64-7 0.40 14
1,4-Dioxane.......................................... 123-91-1 NA 170
Diphenylamine (difficult to distinguish from 122-39-4 0.92 13
diphenylnitrosamine).
Diphenylnitrosamine (difficult to distinguish from 86-30-6 0.92 13
diphenylamine).
1,2-Diphenylhydrazine................................ 122-66-7 0.087 NA
Disulfoton........................................... 298-04-4 0.017 6.2
Endosulfan I......................................... 939-98-8 0.023 0.066
Endosulfan II........................................ 33213-6-5 0.029 0.13
Endosulfan sulfate................................... 1-31-07-8 0.029 0.13
Endrin............................................... 72-20-8 0.0028 0.13
Endrin aldehyde...................................... 7421-93-4 0.025 0.13
Ethyl acetate........................................ 141-78-6 0.34 33
Ethyl cyanide (Propanenitrile)....................... 107-12-0 0.24 360
Ethyl benzene........................................ 100-41-4 0.057 10
Ethyl ether.......................................... 60-29-7 0.12 160
bis(2-Ethylhexyl) phthalate.......................... 117-81-7 0.28 28
Ethyl methacrylate................................... 97-63-2 0.14 160
Ethylene oxide....................................... 75-21-8 0.12 NA
Famphur.............................................. 52-85-7 0.017 15
Fluoranthene......................................... 206-44-0 0.068 3.4
Fluorene............................................. 86-73-7 0.059 3.4
Heptachlor........................................... 76-44-8 0.0012 0.066
Heptachlor epoxide................................... 1024-57-3 0.016 0.066
Hexachlorobenzene.................................... 118-74-1 0.055 10
Hexachlorobutadiene.................................. 87-68-3 0.055 5.6
Hexachlorocyclopentadiene............................ 77-47-4 0.057 2.4
HxCDDs (All Hexachlorodibenzo-p-dioxins)............. NA 0.000063 0.001
HxCDFs (All Hexachlorodibenzofurans)................. NA 0.000063 0.001
Hexachloroethane..................................... 67-72-1 0.055 30
Hexachloropropylene.................................. 1888-71-7 0.035 30
Indeno (1,2,3-c,d) pyrene............................ 193-39-5 0.0055 3.4
Iodomethane.......................................... 74-88-4 0.19 65
Isobutyl alcohol..................................... 78-83-1 5.6 170
Isodrin.............................................. 465-73-6 0.021 0.066
Isosafrole........................................... 120-58-1 0.081 2.6
Kepone............................................... 143-50-8 0.0011 0.13
Methacrylonitrile.................................... 126-98-7 0.24 84
Methanol............................................. 67-56-1 5.6 0.75 mg/l TCLP
Methapyrilene........................................ 91-80-5 0.081 1.5
Methoxychlor......................................... 72-43-5 0.25 0.18
3-Methylcholanthrene................................. 56-49-5 0.0055 15
4,4-Methylene bis(2-chloroaniline)................... 101-14-4 0.50 30
Methylene chloride................................... 75-09-2 0.089 30
Methyl ethyl ketone.................................. 78-93-3 0.28 36
Methyl isobutyl ketone............................... 108-10-1 0.14 33
Methyl methacrylate.................................. 80-62-6 0.14 160
Methyl methansulfonate............................... 66-27-3 0.018 NA
Methyl parathion..................................... 298-00-0 0.014 4.6
Naphthalene.......................................... 91-20-3 0.059 5.6
2-Naphthylamine...................................... 91-59-8 0.52 NA
o-Nitroaniline....................................... 88-74-4 0.27 14
p-Nitroaniline....................................... 100-01-6 0.028 28
Nitrobenzene......................................... 98-95-3 0.068 14
5-Nitro-o-toluidine.................................. 99-55-8 0.32 28
o-Nitrophenol........................................ 88-75-5 0.028 13
p-Nitrophenol........................................ 100-02-7 0.12 29
N-Nitrosodiethylamine................................ 55-18-5 0.40 28
N-Nitrosodimethylamine............................... 62-75-9 0.40 2.3
N-Nitroso-di-n-butylamine............................ 924-16-3 0.40 17
N-Nitrosomethylethylamine............................ 10595-95-6 0.40 2.3
N-Nitrosomorpholine.................................. 59-89-2 0.40 2.3
N-Nitrosopiperidine.................................. 100-75-4 0.013 35
N-Nitrosopyrrolidine................................. 930-55-2 0.013 35
Parathion............................................ 56-38-2 0.014 4.6
Total PCBs (sum of all PCB isomers, or all Aroclors). 1336-36-3 0.10 10
Pentachlorobenzene................................... 608-93-5 0.055 10
PeCDDs (All Pentachlorodibenzo-p-dioxins)............ NA 0.000063 0.001
PeCDFs (All Pentachlorodibenzofurans)................ NA 0.000035 0.001
Pentachloroethane.................................... 76-01-7 0.055 6.0
Pentachloronitrobenzene.............................. 82-68-8 0.055 4.8
Pentachlorophenol.................................... 87-86-5 0.089 7.4
Phenacetin........................................... 62-44-2 0.081 16
Phenanthrene......................................... 85-01-8 0.059 5.6
Phenol............................................... 108-95-2 0.039 6.2
Phorate.............................................. 298-02-2 0.021 4.6
Phthalic acid........................................ 100-21-0 0.055 28
Phthalic anhydride................................... 85-44-9 0.055 28
Pronamide............................................ 23950-58-5 0.093 1.5
Pyrene............................................... 129-00-0 0.067 8.2
Pyridine............................................. 110-86-1 0.014 16
Safrole.............................................. 94-59-7 0.081 22
Silvex (2,4,5-TP).................................... 93-72-1 0.72 7.9
2,4,5-T (2,4,5-Trichlorophenoxyacetic acid).......... 93-76-5 0.72 7.9
1,2,4,5-Tetrachlorobenzene........................... 95-94-3 0.055 14
TCDDs (All Tetrachlorodibenzo-p-dioxins)............. NA 0.000063 0.001
TCDFs (All Tetrachlorodibenzofurans)................. NA 0.000063 0.001
1,1,1,2-Tetrachloroethane............................ 630-20-6 0.057 6.0
1,1,2,2-Tetrachloroethane............................ 79-34-6 0.057 6.0
Tetrachloroethylene.................................. 127-18-4 0.056 6.0
2,3,4,6-Tetrachlorophenol............................ 58-90-2 0.030 7.4
Toluene.............................................. 108-88-3 0.080 10
Toxaphene............................................ 8001-35-2 0.0095 2.6
Bromoform (Tribromomethane).......................... 75-25-2 0.63 15
1,2,4-Trichlorobenzene............................... 120-82-1 0.055 19
1,1,1-Trichloroethane................................ 71-55-6 0.054 6.0
1,1,2-Trichloroethane................................ 79-00-5 0.054 6.0
Trichloroethylene.................................... 79-01-6 0.054 6.0
Trichloromonofluoromethane........................... 75-69-4 0.020 30
2,4,5-Trichlorophenol................................ 95-95-4 0.18 7.4
2,4,6-Trichlorophenol................................ 88-06-2 0.035 7.4
1,2,3-Trichloropropane............................... 96-18-4 0.85 30
1,1,2-Trichloro-1,2,2-trifluoroethane................ 76-13-1 0.057 30
tris-(2,3-Dibromopropyl) phosphate................... 126-72-7 0.11 0.10
Vinyl chloride....................................... 75-01-4 0.27 6.0
Xylenes-mixed isomers (sum of o-, m-, and p-xylene 1330-20-7 0.32 30
concentrations).
Antimony............................................. 7440-36-0 1.9 2.1 mg/l TCLP
Arsenic.............................................. 7440-38-2 1.4 5.0 mg/l TCLP
Barium............................................... 7440-39-3 1.2 7.6 mg/l TCLP
Beryllium............................................ 7440-41-7 0.82 0.014 mg/l TCLP
Cadmium.............................................. 7440-43-9 0.69 0.19 mg/l TCLP
Chromium (Total)..................................... 7440-47-3 2.77 0.86 mg/l TCLP
Cyanides (Total)\4\.................................. 57-12-5 1.2 590
Cyanides (Amenable)\4\............................... 57-12-5 0.86 30
Fluoride............................................. 16964-48-8 35 NA
Lead................................................. 7439-92-1 0.69 0.37 mg/l TCLP
Mercury--Nonwastewater from Retort................... 7439-97-6 NA 0.20 mg/l TCLP
Mercury--All Others.................................. 7439-97-6 0.15 0.025 mg/l TCLP
Nickel............................................... 7440-02-0 3.98 5.0 mg/l TCLP
Selenium............................................. 7782-49-2 0.82 0.16 mg/l TCLP
Silver............................................... 7440-22-4 0.43 0.30 mg/l TCLP
Sulfide.............................................. 8496-25-8 14 NA
Thallium............................................. 7440-28-0 1.4 0.078 mg/l TCLP
Vanadium............................................. 7440-62-2 4.3 0.23 mg/l TCLP
Zinc\5\.............................................. 7440-66-6 2.61 5.3 mg/l TCLP
----------------------------------------------------------------------------------------------------------------
\1\CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\Concentration standards for wastewaters are expressed in mg/l are based on analysis of composite samples.
\3\Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
expressed as a concentration were established, in part, based upon incineration in units operated in
accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart O, or
based upon combustion in fuel substitution units operating in accordance with applicable technical
requirements. A facility may comply with these treatment standards according to provisions in 40 CFR
268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples.
\4\Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or
9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW-846,
as incorporated by reference in 40 CFR 260.11, with a sample size of 10 grams and a distillation time of one
hour and 15 minutes.
\5\Zinc is not an ``underlying hazardous constituent'' in characteristic wastes, according to the definition at
268.2(i).
Note: NA means not applicable.

Appendix IV to Part 268 [Revised]

32. Appendix IV to part 268 is revised to read as follows:

Appendix IV to Part 268--Wastes Excluded From Lab Packs Under the
Alternative Treatment Standards of Sec. 268.42(c)

Hazardous waste with the following EPA Hazardous Waste Codes may
not be placed in lab packs under the alternative lab pack treatment
standards of Sec. 268.42(c): D009, F019, K003, K004, K005, K006,
K062, K071, K100, K106, P010, P011, P012, P076, P078, U134, U151.

Appendix V to Part 268 [Removed]

33. Appendix V to part 268 is removed and reserved.

Appendix X to Part 268 [Added]

34. Appendix X to part 268 is added to read as follows:

Appendix X to Part 268--Recordkeeping, Notification, and/or Certification Requirements
----------------------------------------------------------------------------------------------------------------
Recordkeeping,
Recipient of notification, and/or
Entity Scenario Frequency notification certification
requirements
----------------------------------------------------------------------------------------------------------------
I. Generator........ A. Waste does not Each shipment........ Treatment or Notice must include:
meet applicable storage facility. EPA hazardous
treatment waste number.
standards or Constituents of
exceeds applicable concern.
prohibition levels Treatability
(see Sec. group.
268.7(a)(1)). Manifest number.
Waste analysis
data (where available).
B. Waste can be Each shipment........ Land disposal Notice and certification
disposed of facility. statement that waste
without further meets applicable
treatment (meets treatment standards or
applicable applicable prohibition
treatment levels.
standards or does Notice must include:
not exceed EPA hazardous
prohibition levels waste number.
upon generation) Constituents of
(see Sec. concern.
268.7(a)(2)). Treatability
group.
Manifest number.
Waste analysis
data (where available).
Certification statement
required under Sec.
268.7(a)(2)(ii) that
waste complies with
treatment standards and
prohibitions.
C. Waste is subject Each shipment........ Receiving facility. Notice must include:
to exemption from Statement that
a prohibition on waste is not prohibited
the type of land from land disposal.
disposal utilized EPA hazardous
for the waste, waste number.
such as a case-by- Constituents of
case extension concern.
under Sec. 268.5, Treatability
an exemption under group.
Sec. 268.6, or a Manifest number.
nationwide Waste analysis
capacity variance data (where available).
(see Sec. Date the waste is
268.7(a)(3)). subject to the
prohibitions.
D. Waste is being Minimum of 30 days EPA Regional Generator must develop,
accumulated in prior to treatment Administrator (or keep on-site, and follow
tanks or activity. designated a written waste analysis
containers representative) or plan describing
regulated under 40 authorized State. procedures used to
CFR 262.34 and is Delivery must be comply with the
being treated in verified. treatment standards.
such tanks or If waste is shipped off-
containers to meet site, generator also
applicable must comply with
treatment notification requirement
standards (see of Sec. 268.7(a)(2).
Sec. 268.7(a)(4)).
E. Generator is Each shipment........ Treatment facility. Notice in accordance with
managing a lab Sec. 268.7(a)(1),
pack containing (a)(5), and (a)(6),
certain wastes and where applicable.
wishes to use an Certification in
alternative accordance with Sec.
treatment standard 268.7(a)(8).
(see Sec.
268.7(a)(8)).
F. Small quantity Initial shipment..... Treatment facility. Must comply with
generators with applicable notification
tolling agreements and certification
(pursuant to 40 requirements in Sec.
CFR 262.20(e)) 268.7(a).
(see Sec. Generator also must
268.7(a)(9)). retain copy of the
notification and
certification together
with tolling agreement
on-site for at least 3
years after termination
or expiration of
agreement.
G. Generator has N/A.................. Generator's file... All supporting data must
determined waste be retained on-site in
is restricted generator's files.
based solely on
his knowledge of
the waste (see
Sec. 268.7(a)(5)).
H. Generator has N/A.................. Generator's file... All waste analysis data
determined waste must be retained on-site
is restricted in generator's files.
based on testing
waste or an
extract (see Sec.
268.7(a)(5)).
I. Generator has One-time............. Generator's file... Notice of generation and
determined that subsequent exclusion
waste is excluded from the definition of
from the hazardous or solid
definition of waste, or exemption from
hazardous or solid Subtitle C regulation,
waste or exempt and information
from Subtitle C regarding the
regulation (see disposition of the
Sec. 268.7(a)(6)). waste.
J. Generator (or One-time............. EPA Regional Notice must include:
treater) claims Administrator or Name and address
that hazardous authorized State. of Subtitle D facility
debris is excluded Notification must receiving treated
from the be updated as debris.
definition of necessary under EPA hazardous
hazardous waste Sec. 268.7(d)(2). waste number and
under 40 CFR description of debris as
261.3(f)(1) (see initially generated.
Sec. 268.7(d)). Technology used
to treat the debris
(Table 1 of Sec.
268.45).
Certification and
recordkeeping in
accordance with Sec.
268.7(d)(3).
K. Generator (or One-time............. Generator's (or Notice must include:
treater) claims treater's) files Name and address
that and EPA Regional of Subtitle D facility
characteristic Administrator or receiving the waste.
wastes are no authorized State. EPA hazardous
longer hazardous Notification must waste number and
(see Sec. be updated as description of waste as
268.9(d)). necessary under initially generated.
Sec. 268.9(d). Treatability
group.
Underlying
hazardous constituents.
Certification in
accordance with Sec.
268.9(d)(2).
L. Other N/A.................. Generator's file... Generator must retain a
recordkeeping copy of all notices,
requirements (see certifications,
Sec. 268.7(a)(7)). demonstrations, waste
analysis data, and other
documentation produced
pursuant to Sec. 268.7
on-site for at least 5
years from the date that
the waste was last sent
to on-site or off-site
treatment, storage, or
disposal. This period is
automatically extended
during enforcement
actions or as requested
by the Administrator.
II. Treatment A. Waste shipped Each shipment........ Land disposal Notice must include:
Facility. from treatment facility. EPA hazardous
facility to land waste number.
disposal facility Constituents of
(see Sec. concern.
268.7(b)(4), Treatability
(b)(5)). group.
Manifest number.
Waste analysis
data (where available).
Applicable certification,
in accordance with Sec.
268.7(b)(5)(i), (ii) or
(iii), stating that the
waste or treatment
residue has been treated
in compliance with
applicable treatment
standards and
prohibitions.
B. Waste treatment Each shipment........ Receiving facility. Treatment, storage, or
residue from a disposal facility must
treatment or comply with all notice
storage facility and certification
will be further requirements applicable
managed at a to generators.
different
treatment or
storage facility
(see Sec.
268.7(b)(6)).
C. Where wastes are Each shipment........ Regional No notification to
recyclable Administrator (or receiving facility
materials used in delegated required pursuant to
a manner representative). Sec. 268.7(b)(4).
constituting Certification as
disposal subject described in Sec.
to Sec. 266.20(b) 268.7(b)(5) and notice
(see Sec. with information listed
268.7(b)(7)). in Sec. 268.7(b)(4),
except manifest number.
Recycling facility must
keep records of the name
and location of each
entity receiving
hazardous waste-derived
products.
III. Land Disposal A. Wastes accepted N/A.................. N/A................ Maintain copies of notice
Facility. by land disposal and certifications
facility (see Sec. specified in Sec.
268.7(c)). 268.7(a) and (b).
----------------------------------------------------------------------------------------------------------------

Certification Statements

A. I certify under penalty of law that I personally have
examined and am familiar with the waste through analysis and testing
or through knowledge of the waste to support this certification that
the waste complies with the treatment standards specified in 40 CFR
part 268, subpart D and all applicable prohibitions set forth in 40
CFR 268.32 or RCRA section 3004(d). I believe that the information I
submitted is true, accurate and complete. I am aware that there are
significant penalties for submitting a false certification,
including the possibility of fine and imprisonment.
(Sec. 268.7(a)(2)(ii))
B. I certify under penalty of law that I personally have
examined and am familiar with the waste and that the lab pack does
not contain any wastes identified at Sec. 268.42(c)(2). I am aware
that there are significant penalties for submitting a false
certification, including the possibility of fine or imprisonment.
(Sec. 268.7(a)(8))
C. I certify under penalty of law that I have personally
examined and am familiar with the treatment technology and operation
of the treatment process used to support this certification and
that, based on my inquiry of those individuals immediately
responsible for obtaining this information, I believe that the
treatment process has been operated and maintained properly so as to
comply with the performance levels specified in 40 CFR part 268,
subpart D, and all applicable prohibitions set forth in 40 CFR
268.32 or RCRA section 3004(d) without impermissible dilution of the
prohibited waste. I am aware that there are significant penalties
for submitting a false certification, including the possibility of
fine and imprisonment. (Sec. 268.7(b)(5)(i))
D. I certify under penalty of law that the waste has been
treated in accordance with the requirements of 40 CFR 268.42. I am
aware that there are significant penalties for submitting a false
certification, including the possibility of fine and imprisonment.
(Sec. 268.7(b)(5)(ii))
E. I certify under penalty of law that I have personally
examined and am familiar with the treatment technology and operation
of the treatment process used to support this certification and
that, based on my inquiry of those individuals immediately
responsible for obtaining this information, I believe that the
nonwastewater organic constituents have been treated by incineration
in units operated in accordance with 40 CFR part 264, subpart O or
40 CFR part 265, subpart O, or by combustion in fuel substitution
units operating in accordance with applicable technical
requirements, and I have been unable to detect the nonwastewater
organic constituents, despite having used best good faith efforts to
analyze for such constituents. I am aware that there are significant
penalties for submitting a false certification, including the
possibility of fine and imprisonment. (Sec. 268.7(b)(5)(iii))
F. I certify under penalty of law that the waste has been
treated in accordance with the requirements of 40 CFR 268.40 to
remove the hazardous characteristic. This decharacterized waste
contains underlying hazardous constituents that require further
treatment to meet universal treatment standards. I am aware that
there are significant penalties for submitting a false
certification, including the possibility of fine and imprisonment.
(Sec. 268.7(b)(5)(iv))
G. I certify under penalty of law that the debris have been
treated in accordance with the requirements of 40 CFR 268.45. am
aware that there are significant penalties for making a false
certification, including the possibility of fine and imprisonment.
(Sec. 268.7(d)(3)(iii))

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS

35. The authority citation for Part 271 continues to read as
follows:

Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.

Subpart A--Requirements for Final Authorization

36. Section 271.1(j) is amended by adding the following entries to
Table 1 in chronological order by date of publication in the Federal
Register, and by adding the following entries to Table 2 in
chronological order by effective date in the Federal Register:

Sec. 271.1 Purpose and scope.

* * * * *
(j) * * *

Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
--------------------------------------------------------------------------------------------------------------------------------------------------------
Promulgation date Title of regulation Federal Register reference Effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
September 19, 1994.............. Land Disposal Restrictions Phase II--Universal [Insert FR page numbers]................. December 19, 1994.
Treatment Standards, and Treatment Standards
for Organic Toxicity Characteristic Wastes and
Newly Listed Wastes\4\ in Sec. 268.38.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
*****
\4\The following portions of this rule are not HSWA regulations: Secs. 260.30, 260.31, 261.2.

Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effective date Self-implementing provision RCRA citation Federal Register reference
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
December 19, 1994............... Prohibition on land disposal of newly listed 3004(g)(4)(C) and 3004(m)................ September 19, 1994.
and identified wastes. 59 FR [insert page
numbers].
September 19, 1995.............. Establishment of treatment standards for D001 3004(m).................................. Do.
and D012-D017 wastes injected into
nonhazardous deep wells.
September 19, 1996.............. Prohibition on land disposal of radioactive 3004(g)(4)(C) and 3004(m)................ Do.
waste mixed with the newly listed or
identified wastes, including soil and debris.

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[FR Doc. 94-22493 Filed 9-16-94; 8:45 am]
BILLING CODE 6560-50-P}}}}}}}}}}}}}}}}}}}}