[Federal Register Volume 60, Number 162 (Tuesday, August 22, 1995)]
[Proposed Rules]
[Pages 43654-43699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20623]




[[Page 43653]]

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Part II





Environmental Protection Agency





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40 CFR Part 148 et al.



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

  Federal Register / Vol. 60, No. 162 / Tuesday, August 22, 1995 / 
Proposed Rules  
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 268, and 271

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


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

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

ACTION: Proposed rule.

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

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

ADDRESSES: The public must send an original and two copies of their 
comments to Docket Number F-95-PH4P-FFFFF, located in the EPA RCRA 
Docket, U.S. Environmental Protection Agency, room 2616, 401 M Street, 
SW., Washington, DC 20460. (Also see the section under SUPPLEMENTARY 
INFORMATION: regarding the paperless office effort for submitting 
public comments.) The RCRA Docket is open from 9:00 am to 4:00 pm 
Monday through Friday, except for Federal holidays. The public must 
make an appointment to review docket materials by calling (202) 260-
9327. The public may copy a maximum of 100 pages from any regulatory 
document at no cost. Additional copies cost $0.15 per page. The mailing 
address is EPA RCRA Docket (5305), U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:
For general information, contact the RCRA Hotline at (800) 424-9346 
(toll-free) or (703) 412-9810. For specific information, contact the 
Waste Treatment Branch (5302W), Office of Solid Waste (OSW), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460; phone (703) 308-8434. For technical information regarding 
standards for Clean Water Act (CWA) systems, ask for Mary Cunningham or 
Elaine Eby; for technical information on the treatment standards for 
wood preserving wastes, ask for Jose Labiosa; for TC metal wastes, ask 
for Anita Cummings. For policy questions, ask for Sue Slotnick. For 
questions on the clean-up of the Part 268 regulations, ask for Douglas 
Heimlich. For information on the capacity analyses, ask for Pan Lee of 
the Capacity Programs Branch (OSW), phone (703) 308-8440. For 
information on the regulatory impact analyses, contact Linda Martin of 
the Regulatory Analysis Branch (OSW), phone (202) 260-0062.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

    EPA is asking prospective commenters to voluntarily submit one 
additional copy of their comments on labeled personal computer 
diskettes in ASCII (TEXT) format or a word processing format that can 
be converted to ASCII (TEXT). It is essential to specify on the disk 
label the word processing software and version/edition as well as the 
commenter's name. This will allow EPA to convert the comments into one 
of the word processing formats utilized by the Agency. Please use 
mailing envelopes designed to physically protect the submitted 
diskettes. EPA emphasizes that submission of comments on diskettes is 
not mandatory, nor will it result in any advantage or disadvantage to 
any commenter. Rather, EPA is experimenting with this procedure as an 
attempt to expedite our internal review and response to comments. This 
expedited procedure is in conjunction with the Agency ``Paperless 
Office'' campaign. For further information on the submission of 
diskettes, contact the Waste Treatment Branch at the phone number 
listed above.
Glossary of Acronyms and Terms

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

Table of Contents

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

[[Page 43655]]

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

A. Summary

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

B. Background

    In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
Resource Conservation and Recovery Act (RCRA), Congress prohibited land 
disposal of hazardous waste unless the waste meets treatment standards 
established by EPA. The statute requires that these treatment standards 
substantially diminish the toxicity or mobility of hazardous waste such 
that short- and long-term threats to human health and the environment 
are minimized. RCRA section 3004(m). In response, EPA has developed a 
series of rulemakings under the Land Disposal Restrictions (LDR) 
Program setting forth standards for treatment of hazardous waste.
    The Third Third rule (55 FR 22520, June 1, 1990) contained 
treatment standards and prohibitions for hazardous wastes that 
exhibited one or more of the following characteristics: Ignitability, 
corrosivity, reactivity, or Extraction Procedure (EP) toxicity (40 CFR 
261.21-261.24). The Agency also established a ``deactivation'' 
treatment standard for ignitable, corrosive, and reactive (ICR) wastes. 
Under this standard, ICR wastes could be diluted until they no longer 
exhibited the hazardous characteristic (i.e., the waste was 
``deactivated''). Once deactivated, these wastes could be placed in 
land disposal units without further treatment, unless the Agency 
specifically required that hazardous constituents in the waste be 
treated. The Agency further established that prohibitions on dilution 
did not apply to most characteristic wastes that are decharacterized by 
dilution and then managed in disposal units subject to regulation under 
the CWA or the Safe Drinking Water Act.
    These portions of the rule were partially vacated and remanded in 
Chemical Waste Management v. EPA, 976 F. 2d 2, cert. denied 113 S.Ct. 
1961 (1992). In CWM v. EPA, the court held that wastes decharacterized 
by dilution may be placed in a nonhazardous surface impoundment or a 
nonhazardous injection well only if the toxic constituents in that 
waste are treated to the same extent as they would be under the 
treatment standards mandated by RCRA section 3004(m)(1). 976 F. 2d at 
23. In other words, treatment standards must result in the treatment of 
all toxic constituents (i.e., the underlying hazardous constituents, or 
UHCs) to minimize threats to human health and the environment. 
Treatment that only removes the hazardous characteristic does not 
necessarily suffice.
    The principal holdings of CWM v. EPA with respect to characteristic 
wastes were that: (1) EPA may require treatment under RCRA section 
3004(m) to more stringent levels than those at which wastes are 
identified as hazardous, 976 F. 2d at 12-14; (2) Section 3004(m) 
requires that treatment standards address both short-term and long-term 
potential threats posed by 

[[Page 43656]]
hazardous wastes, as well as removal of the characteristic property, 
id. at 16, 17, 23; as a result, dilution is permissible as an exclusive 
method of treatment only for those characteristic wastes that do not 
contain UHCs ``in sufficient concentrations to pose a threat to human 
health or the environment'' (i.e., the minimize threat level in section 
3004(m)), id. at 16; and, (3) situations where characteristic hazardous 
wastes are diluted, no longer exhibit a characteristic(s), and are then 
managed in centralized wastewater management land disposal units (i.e., 
subtitle D surface impoundments or injection wells) are legal only if 
it can be demonstrated that hazardous constituents are reduced, 
destroyed, or immobilized to the same extent as they would be pursuant 
to otherwise-applicable RCRA treatment standards, id. at 7. EPA refers 
to this as the ``equivalency determination'' and it is at the heart of 
the discussion of potential cross-media transfers in today's rule. The 
court further held that the deactivation treatment standard for 
ignitable and corrosive wastes (which allowed the hazardous 
characteristic to be removed by any type of treatment, including 
dilution) did not fully comport with RCRA section 3004(m). This was 
because the deactivation treatment standard could be achieved by 
dilution, and section 3004(m) ``requires that any hazardous waste be 
treated in such a way that hazardous constituents be removed from the 
waste before it enters the environment.'' 976 F. 2d at 24. The court 
thus remanded the rules dealing with centralized wastewater management 
involving land disposal.
    EPA addressed one portion of the equivalence issue when it proposed 
the Phase III LDR rule (60 FR 11702, March 2, 1995). That rule 
proposes, among other things, treatment standards for the end-of-pipe 
discharges from surface impoundments to surface waters or POTWs. For 
further information on the court decision and the Agency's responses, 
see the January 19, 1993, Notice of Data Availability (58 FR 4972) and 
Supplementary Information Report; the LDR emergency Interim Final rule 
(58 FR 29860, May 24, 1993); the LDR Phase II rule (59 FR 47982, 
September 19, 1994); and the LDR Phase III proposed rule (60 FR 11702, 
March 2, 1995).
    The Agency entered into a settlement agreement setting out a 
schedule for fulfilling the court's mandate. The settlement agreement 
reads:

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

Therefore, the Agency is required to address these issues at this time 
although there may have been higher environmental priorities if EPA had 
sole discretion to order its agenda.
    The central legal and policy issue addressed in this proposal is if 
and when releases of hazardous constituents from surface impoundments 
which are part of a treatment train for decharacterized wastes are so 
extensive as to effectively invalidate the treatment process as a means 
of LDR compliance. Put another way, the D.C. Circuit intended to allow 
continued use of treatment surface impoundments to treat 
decharacterized wastes, provided the extent of treatment is equivalent 
to usual RCRA treatment. If there are releases of hazardous 
constituents to the environment before treatment concludes, in the form 
of air releases, leaks to ground water, or deposition in sludges, has 
permanent disposal occurred so as to invalidate the treatment process?
    EPA's view is that, at the least, something more than the bare 
release of a hazardous constituent is needed to trigger this 
invalidation. The court did not explicitly state that its equivalence 
test, or any other part of the opinion, necessitated control of all 
hazardous constituent releases from surface impoundments. For example, 
one of the court's formulations of its holding is that ``treatment of 
solid wastes in a CWA surface impoundment must meet RCRA requirements 
prior to ultimate discharge into waters of the United States or 
publicly owned treatment works. . . .'' 976 F. 2d at 20. The focus here 
is on the wastewaters being treated, and the amount of hazardous 
constituents removed from those wastewaters, not other types of wastes 
(like sludges) or other types of releases. See also id. at 7, 20 (focus 
on treatment of waste ``streams'', i.e. liquids in an impoundment); 23 
n. 8 (reduction of mass loadings of hazardous constituents of 
wastestream entering and exiting an impoundment); 24 (court indicates 
that decharacterized wastes are not held permanently in impoundments, 
which is true of wastewaters but not for all wastewater treatment 
sludges).
    The court likewise did not see that hazardous constituents in 
deposited sludges must be treated. The court in fact did not speak to 
the principle stated by EPA in the Third Third rule that generation of 
a new treatability group is considered to be a new point of generation 
and thus a new point for determining whether a waste is prohibited. 55 
FR at 22661-662. Under this principle, unchallenged in the litigation, 
wastewater treatment sludges not exhibiting a characteristic are not 
prohibited wastes, notwithstanding that they may derive from prohibited 
wastewaters.
    Perhaps more fundamentally, the court clearly did not intend to 
require that treatment standards be met invariably by treatment 
preceding impoundment-based management systems: ``RCRA requires some 
accommodation with [the] Clean Water Act''. 976 F. 2d at 20; see also 
id. at 23, indicating that to some degree RCRA need not mandate 
wholesale disruption of existing wastewater treatment impoundments, 
providing the CWA treatment system really achieves treatment equivalent 
to RCRA's: ``In other words, what leaves a CWA treatment facility can 
be no more toxic than if the wastestreams were individually treated 
pursuant to the RCRA treatment standards.'' A draconian reading that 
any releases of hazardous constituents from a treatment impoundment 
effectively invalidate that impoundment's treatment operations could 
thwart the court's holding that such treatment is to be allowed 
provided equivalent treatment occurs.
    There are suggestions in the opinion, however, that at some point 
the LDR standard is not satisfied if the magnitude of hazardous 
constituent releases is sufficiently great. The whole thrust of the 
opinion is to assure that RCRA treatment requirements are not thwarted 
by cross-media transfers of untreated hazardous constituents, whether 
by dilution or by escape from treatment units. Id. at 22, 24, 29-30; 
see also id. at 17, 18 vacating treatment standards for ignitable and 
reactive wastes because the Agency had done nothing to address the risk 
of excessive volatilization or reactivity during the treatment process. 
The court also distinguished a number of times between temporary 
placement of diluted wastes in impoundments for treatment and permanent 
disposal in land disposal units, stating that only the temporary 
placement represents a satisfactory accommodation between RCRA and the 
CWA. Id. at 24, 25. To the 

[[Page 43657]]
extent hazardous constituents leak or volatilize from impoundments, or 
from inadequately treated sludges, it can be argued that permanent 
disposal of untreated hazardous constituents is occurring, although, 
since no treatment unit is absolutely release-free (there are certainly 
releases of hazardous constituents from combustion units, for example), 
the more fruitful inquiry is the extent of the release.
    Putting this together, EPA initially believes the best reading of 
this part of the opinion to be to distinguish between impoundments 
performing essentially as treatment units from those that are also 
operating as permanent disposal units due to the extent of cross-media 
transfers of untreated hazardous constituents. The portion of the 
opinion vacating standards for ignitable and reactive wastes supports 
such a reading, since the court required the Agency to find ``that the 
risk of * * * emissions * * * is minimal, or * * * require actions to 
minimize that risk.'' 976 F. 2d at 17, thus focusing on the extent of 
release from the treatment unit, not just the fact that a release 
occurred. Under this reading, the Agency could evaluate whether the 
risk from the various types of releases is great enough to warrant 
control. A finding that there is insufficient risk would mean that the 
impoundment is not engaging in a type of cross-media transfer of 
untreated hazardous constituents that invalidates its treatment 
function, and therefore that decharacterized wastes can be treated in 
the impoundment to effect the necessary accommodation between RCRA and 
the CWA.
    A second pervasive distinction in the opinion is between treatment 
units (including treatment surface impoundments) and permanent disposal 
units, accommodation to allow centralized wastewater management being 
allowed for the former but not the latter. See, e.g., 976 F. 2d at 24, 
25. There are some potential differentiations among types of surface 
impoundments along these lines. A common division of wastewater 
treatment is into primary, secondary, and tertiary treatment. Primary 
treatment involves removal of conventional pollutants (e.g., oil and 
grease, total suspended solids) or equalization. Secondary treatment 
involves aggressive treatment steps to remove or destroy hazardous 
constituents, examples being biological treatment for organics, or 
chemical precipitation for metals. Tertiary treatment involves 
polishing effluent before final discharge. Impoundments engaged in 
primary treatment most clearly resemble hazardous constituent disposal 
units because such units treat hazardous constituents only 
incidentally. Secondary and tertiary impoundments, on the other hand, 
do engage in significant treatment of hazardous constituents. Thus, 
possible Phase IV controls would logically be directed at primary 
impoundments, the type of wastewater management impoundment most 
resembling permanent disposal due to the lesser degree of treatment 
occurring in the unit.
    It is also possible to argue that any leak to ground water or 
deposition of hazardous constituents in sludge at levels exceeding the 
UTS (or some comparable release of hazardous constituents to air) 
renders treatment across a wastewater treatment system not equivalent. 
EPA does not view this reading as compelled. There is no such explicit 
language in the opinion. As already stated, such a reading also would 
likely destroy the very accommodation between RCRA and the CWA the 
court deemed necessary. Nor would such a reading make policy sense if 
releases from treatment surface impoundments remain insignificant, and 
the treatment system is in fact achieving the same mass reductions of 
hazardous constituents, through destruction and removal rather than 
through release, as conventional RCRA treatment (see 976 F. 2d at 23 n. 
8).
    EPA's present, preferred reading of the opinion is consequently to 
establish the parameters which distinguish permanent land disposal 
impoundments from those performing the type of treatment to be 
accommodated under the court's opinion. These parameters can be defined 
by limiting the extent of hazardous constituent releases to air, ground 
water and through sludges to levels that do not pose significant risk. 
In addition, primary treatment impoundments are the most natural target 
for these controls.

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

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

D. Potentially Affected Industries

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

E. Results of Sampling and Risk Assessment

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

[[Page 43658]]

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

[[Page 43659]]
methylene chloride and beryllium are the constituents of concern. 
Finally, in the Electronics and Electrical Components industry, 11 
point of generation samples (out of 295) present potentially 
significant cancer health risk in excess of 10-4; 21 samples 
present cancer health risk in excess of 10-3; methylene chloride 
and beryllium are the constituents of concern.
    For sludges, EPA estimated the risks from disposal in an unlined, 
nonhazardous landfill after the sludges are dredged from a surface 
impoundment. Using estimated sludge concentrations in the OCPSF 
industry, EPA conducted both a central tendency and high-end analysis. 
In the central tendency analysis, one pre-bio sample (of 87) presents 
cancer risk in excess of 10-4 and one bio sample (of 74) presents 
risk in excess of 10-5; acrylonitrile is the constituent causing 
both exceedances. In the high-end analysis, two pre-bio samples (of 87) 
present cancer risk in excess of 10-5; and one bio sample (of 74) 
presents cancer risks in excess of 10-4; acrylonitrile and 1,4-
dichlorobenzene are the causes.
    To assess the potential risk posed by air emissions, EPA examined 
samples at the point of generation of the wastewater. Across all 
industries, one-fifth of samples (290 to 363 of 1562 samples) exceed 
100 parts per million (ppmw) by weight of volatile organic compounds 
(VOCs). Under the recent RCRA Subpart CC final standards, air emission 
control requirements of the rule apply to affected units if hazardous 
waste placed in the unit is determined to have an annual average 
volatile organic concentration equal to or greater than 100 ppmw based 
on the organic composition of the hazardous waste at the point of waste 
origination. See Sec. 264.1083 (promulgated at 59 FR 62928 (December 6, 
1994)). Preliminary results show that 15 percent of samples (87 to 117 
of 690 samples) from the Pharmaceutical, Pulp and Paper, Pesticide, and 
Metal Product and Machinery industries exceed 100 ppmw. In the OCPSF 
industry, 48 to 59 percent of the sample facilities (75 to 92 of 157 
facilities) assessed had at least one sample of wastewater that 
exceeded the 100 ppmw limit. For a detailed discussion of risks and 
regulatory impacts, see the background document ``Regulatory Impact 
Analysis of the Proposed Phase IV Land Disposal Restrictions Rule,'' 
which was placed in the docket for today's proposed rule.

F. Overview of Options

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

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

[[Page 43660]]
standards are the MACT for the pharmaceutical industry and the pulp and 
paper industry. In addition, NESHAPs that may affect portions of the 
petroleum, metal plating, organic chemical and inorganic chemical 
industries are scheduled for promulgation in 1995 and 1996. EPA 
believes, however, that some surface impoundments in the potentially 
affected universe of industries will not be covered by these CAA 
regulations. For a detailed description of coverage by CAA rules, see 
the Table entitled ``NESHAP Programs Identified in Semiannual 
Regulatory Agenda'' in the ``Technical Support Document--Options for 
Management Standards for Leaks, Sludges, and Air Emissions From Surface 
Impoundments Accepting Decharacterized Wastes,'' and see also the 
background document entitled ``Description of Process to Determine the 
Potentially Affected Universe for the Phase IV LDR Rule.''
    With regard to other on-going efforts, EPA is actively 
investigating whether to list additional wastes as hazardous, and is 
investigating the possibility of developing voluntary guidelines for 
Subtitle D facility standards that would more broadly address non-
hazardous industrial wastes.
    In addition to federal controls, some States have environmental 
controls on surface impoundments that receive nonhazardous industrial 
waste, such as ground water monitoring for hazardous constituents, 
leachate collection systems, sludge management programs, and cleanup 
authorities. Thirty-six States have at least some regulations that may 
be relevant to the cross-media concerns in this rule. Among those 
States, requirements to prevent ground water contamination from surface 
impoundments vary considerably. States with the most requirements 
include such controls as specific liner requirements, leachate 
collection and removal systems, ground water monitoring, closure and 
post-closure plans, corrective action, and permits. In contrast, States 
with less comprehensive programs may require only two or three of these 
requirements, or may apply them only to dischargers, only to non-
dischargers, or in other ways limit the applicability of their 
programs. However, EPA does not have information on key factors to help 
it assess the degree to which State programs can be relied upon to 
prevent excessive releases from surface impoundments via leakage. For 
example, it is not known which constituents are monitored, what 
concentrations are considered acceptable levels, or whether the State 
requirements mentioned above apply to existing units, or only to new 
ones. For a more detailed assessment of how State programs protect 
ground water from contamination from the type of surface impoundments 
at issue in this rule, see ``Technical Support Document--Options for 
Management Standards for Leaks, Sludges, and Air Emissions From Surface 
Impoundments Accepting Decharacterized Wastes,'' in the RCRA Docket.
    State controls on sludge from nonhazardous surface impoundments are 
generally far less than the controls for preventing leaks. EPA's 
information is that thirty-seven states have no sludge requirements. 
Other states, such as Alabama, Florida, and Missouri, have minimal 
requirements under their National Pollutant Discharge Elimination 
System (NPDES) permits for sludge management. Pennsylvania requires 
sludge to be removed annually from storage surface impoundments. In 
California, sludge must be disposed in a landfill or monofill. One of 
the states with more controls is Michigan, which requires a plan for 
sludge monitoring, treatment, transportation, storage, and disposal, 
along with a hydrogeological study if there is a threat to ground 
water.
    With respect to air emissions, the Agency recognizes that State 
Implementation Plans, or SIPS, which are mandated under the Clean Air 
Act, may provide some control. EPA solicits information on the extent 
to which State and Tribal programs control leaks, sludge, and air 
emissions from surface impoundments receiving decharacterized wastes.

H. Option 2

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

[[Page 43661]]
Option 1. Thus, if an impoundment is located at a permitted TSDF, no 
further control would be adopted under Phase IV. EPA Regional, State, 
or Tribal limits which control releases of specific UHCs from 
impoundments also would be considered controlling and so make Phase IV 
controls unnecessary.
    Option 2 provides flexibility in dealing with site-specific factors 
and cost-effective control alternatives. Facilities have the choice of 
treating the characteristic wastestream to meet UTS before entering a 
surface impoundment, thus avoiding any management standards enumerated 
in the option. This option also incorporates alternative means of 
compliance proposed in the Phase III rule, namely an exception for de 
minimis decharacterized wastestreams (i.e., prohibited wastewaters 
containing de minimis amounts of UHCs) and an option allowing the 
requisite mass reduction of hazardous constituents to be achieved by 
means of pollution prevention rather than wastewater treatment. For a 
simplified guide to which facilities would be affected by option 2, see 
the following flow chart entitled Figure 1.

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[[Page 43663]]

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

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[[Page 43665]]

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

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

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

[[Page 43666]]
    operator repair a cover fitting found to be leaking within 15 days of 
detection. Repair of control equipment on a surface impoundment may be 
delayed beyond 15 calendar days under certain circumstances. To delay 
repair, the owner or operator would have to document that the repair 
cannot be completed without emptying the contents of the unit and also 
that removing the unit from service would result in the unscheduled 
cessation of production from the process unit or operation of the waste 
management unit that is generating the decharacterized waste. Repair of 
this control equipment would have to be completed the next time the 
process unit or waste management unit is generating the decharacterized 
waste managed in the surface impoundment is shut down.
    f. Recordkeeping requirements. The extended requirements of the 
subpart CC standards would require the owner or operator to record 
certain information in the on-site facility operating logs or files. 
This information is to be readily available for review by authorized 
representatives of the EPA. Consistent with 40 CFR 264.73 and 40 CFR 
265.73, the rule requires that air emission control equipment design 
records and certain other records be maintained in the facility 
operating record until facility closure. Records and results of waste 
determinations, inspections, and monitoring are required to be kept for 
at least three years from the date of entry.
    The information to be collected and recorded includes: the results 
of all waste determinations such as of volatile organic concentrations 
at the point of waste generation and organic vapor pressure; design 
specifications for closed-vent systems and control devices and certain 
control equipment; emission control equipment inspection and monitoring 
results; Methods 27 test results; control device exceedances and 
actions taken to remedy them; leak repairs; management of carbon 
removed from carbon adsorption systems; identification of incinerators, 
boilers, or industrial furnaces used to treat decharacterized waste in 
accordance with the general requirements of the rule; documentation for 
biological wastewater treatment units using air emission controls in 
accordance with the rule requirements; and identification of equipment 
fittings designated as unsafe or difficult to monitor or inspect.
    g. Reporting requirements. The extended requirements of subpart CC 
standards would require an owner or operator to submit reports to the 
EPA only when circumstances occur at the facility resulting in 
noncompliance with certain provisions of the rule. Each report required 
under the extended subpart CC standards would be submitted to the EPA 
Regional office having jurisdiction for that particular location. The 
report would be signed and dated by an authorized representative of the 
facility owner or operator.
    An owner or operator subject to the extended requirements of 40 CFR 
264 subpart CC would have to report to the EPA all circumstances 
resulting in placement of a decharacterized waste in a surface 
impoundment subject to the proposed rule and not using air emission 
controls required by the rule when either of the following conditions 
occur: (1) The characteristic waste has a volatile organic 
concentration equal to or greater than 100 ppmw as determined on a 
mass-weighted average basis at the point of waste origination, or (2) 
the process used to treat the characteristic waste fails to meet the 
applicable conditions specified in the rule. The owner or operator 
would have to submit a written report within 15 calendar days of the 
time that the owner or operator becomes aware of the circumstance.
    An owner or operator subject to the extended requirements of 40 CFR 
part 264, subpart CC and using a control device in accordance with the 
requirements of the rule would be required to submit a semiannual 
written report to the EPA. This report would describe each occurrence 
during the previous 6-month period when a control device is operated 
continuously for 24 hours or longer in noncompliance with the 
applicable operating values defined in 40 CFR 264.1035(c)(4) or when a 
flare is operated with visible emissions as defined in 40 CFR 
264.1033(d). An owner or operator would not be required to submit this 
report for a 6-month period during which all control devices at a 
facility subject to the extended subpart CC standards are operated by 
the owner or operator so that during no period of 24 hours or longer 
did a control device operate continuously in noncompliance with the 
applicable operating values defined in the rule.
4. Proposed Management Standards for Leaks
    a. Scope. If surface impoundments receiving decharacterized wastes 
(i.e., prohibited wastes) are leaking excessively, arguably disposal of 
untreated UHCs is occurring at a level which invalidates the treatment 
function of the impoundment (i.e., which constitutes an impermissible 
cross-media transfer of hazardous constituents. 976 F.2d at 17.). In 
addressing this possibility, this option presents facilities with a 
sequence of monitoring, detection, and correction mechanisms to assure 
that impoundments do not leak UHCs at these levels, and thus allows 
continued use of the impoundment as part of a system achieving RCRA-
equivalent treatment. Thus, facilities choosing to adopt the ground 
water protection approach set out below could continue to use 
impoundments to treat decharacterized wastewaters.
    An alternative to adopting a ground water protection program is to 
treat decharacterized wastes before they reach the impoundment, to 
segregate them altogether, or to retrofit the impoundment so that it 
meets section 3005(j)(11) minimum technology requirements. These 
options remain available at any time to a facility, so that a facility 
would not be locked in to the ground water protection alternative if it 
wishes to pursue alternative means of compliance. There is a caveat, 
however. If a facility chooses to comply with the ground water 
protection alternative and later detects impermissible levels of 
contamination in the ground water at the well sites, the contamination 
would still have to be remediated as set out in this proposed rule, 
even if the facility begins to divert or pretreat the prohibited 
characteristic wastestream at that time. The logic for this is that 
there would have been documented disposal of prohibited wastes not 
treated to meet LDR standards. In such circumstances, the Agency has 
available to it the remedy that the illegally disposed waste must be 
retrieved and properly managed. (See U.S. v. Structural Metals, Inc. 
Civil Action No. SA--91--CA--201 (W.D. TX May 27, 1992)--a consent 
decree requiring that 3600 tons of illegally disposed hazardous waste 
be removed from a landfill and properly treated before being disposed.)
    Option 2 would adopt, with modifications, certain sections of the 
Municipal Solid Waste Landfill rule (referred to herein as the MSWLF 
rule) at 40 CFR Part 258 Subpart E, for the control of leaks and the 
application of corrective action to the following affected units: 
surface impoundments in CWA, CWA-equivalent, or nonhazardous wastewater 
treatment systems that accept wastes decharacterized by dilution. The 
specific standards in this option include portions of ground water 
monitoring systems (Sec. 258.51); ground water sampling and analysis 
requirements (Sec. 258.53); assessment monitoring program 
(Sec. 258.55); assessment of corrective action measures (Sec. 258.56); 
selection of remedy (Sec. 258.57); implementation of the corrective 
action 

[[Page 43667]]
program (Sec. 258.58). For a simplified guide to applicability criteria 
and management standards for leaks, see Figure 3.

BILLING CODE 6560-50-P
      

[[Page 43668]]
    [GRAPHIC][TIFF OMITTED]TP22AU95.002
    


BILLING CODE 6560-50-C

[[Page 43669]]

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

[[Page 43670]]
section Sec. 258.54, which requires a ground water monitoring detection 
program. General descriptions of the sections and changes that EPA is 
proposing for adoption in today's rule are provided below and under the 
following section titled ``Specific Requirements''.
Self-Implementing Provisions
    The MSWLF regulations are structured to be either self-implemented 
by an owner or operator or implemented in ``approved states'' through 
approval and interaction with state regulatory agencies. The MSWLF rule 
was designed so that states with federally approved programs could 
define ground water protection and corrective action programs for 
individual MSWLFs that accounted for site-specific factors.
    In referencing the MSWLF rule for ground water monitoring and 
corrective action activities for surface impoundments under today's 
rule, the Agency is proposing to adopt only those provisions that are 
self-implementing. EPA would modify the applicability of the MSWLF rule 
such that any provisions that require state approval would not apply. 
EPA is aware, however, that some of the site-specific provisions in the 
MSWLF rule that would not be available under today's proposed rule 
might be reasonable approaches for monitoring surface impoundments. For 
example, Sec. 258.51(b) allows the director of an approved state to 
approve a multi-unit ground-water monitoring system, rather than 
require separate ground water monitoring systems for each unit.1 
At some facilities subject to today's rule with closely spaced surface 
impoundments, multi-unit monitoring may be protective and less 
expensive to install and monitor. EPA seeks comment on whether the 
multi-unit provision and any other site-specific provisions in the 
MSWLF rule that would not be available should be allowed to be self-
implemented by facilities subject to ground-water monitoring and 
corrective action under the Phase IV rulemaking.

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

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

[[Page 43671]]
point of compliance as stated above, and document this in the 
facility's records.
    If statistically significant levels of these constituents are 
detected above the constituent-specific ground water protection 
standards as determined by Sec. 258.55(h) of the MSWLF rule, the owner 
or operator is required to undertake corrective action to bring levels 
of the regulated constituents in the ground water to below the ground 
water protection standards. In contrast, under the MSWLF detection 
monitoring regulations, which are not being considered under this 
option, owners or operators are required to monitor for a list of 
constituents from specified lists (see Appendix I to Part 258). 
Constituents on this list are generally thought to be present at 
MSWLFs, have physical and chemical properties that cause them to be 
early indicators of a release from a unit and are easy and inexpensive 
to analyze. The MSWLF rule has provisions to modify the detection 
monitoring list via the overseeing regulatory authority if parameters 
are not reasonably expected to be found in ground water at the site. In 
contrast, the UHCs that the owner or operator is monitoring for under 
proposed Option 2 may not have fate and transport characteristics that 
would provide earliest indication of a release. However, EPA does not 
at this time have information to indicate whether the list of indicator 
parameters monitored for under the MSWLF detection monitoring program 
are present at the surface impoundments subject to today's proposed 
rule. Monitoring for constituents that are not present obviously would 
not provide protection from releases of site-specific UHCs. For these 
reasons, EPA is not proposing to adopt the requirement for facilities 
to monitor the ground water under the detection ground water monitoring 
program specified in 258.54. EPA is, however, proposing to require 
facilities to directly implement a program to monitor the regulated 
constituents in the ground water.
Detecting Releases
    Today's proposed rule also would have a different approach when 
releases have been detected. When constituents are found under MSWLF 
rule detection monitoring at levels that trigger the next phase of 
monitoring (assessment), the owner/operators are required to analyze 
the ground water for a broad list of constituents (Appendix II to Part 
258 of the MSWLF rule) that may be present to better characterize the 
nature of the release. Facilities that move to corrective action 
generally are required to address all ground water contamination, 
rather than a subset of facility-specific UHCs. Today's proposed rule 
does not require facilities to scan for the Sec. 258 Appendix II 
constituents because EPA's authority is limited to the UHCs in the 
prohibited wastes that are required to receive RCRA-equivalent 
treatment. Rather, owner/operators under today's rule would be required 
to move directly to assessment of corrective measures upon detecting 
that releases are statistically significant.
Corrective Action
    If corrective action is required, this means that untreated UHCs 
are being released to the environment at an excessive level. The 
impoundment thus is not performing equivalent treatment. An operator 
can, however, capture and treat the constituents via corrective action, 
which would have the effect of re-validating the surface impoundments 
treatment function.
    EPA is aware that owners or operators undertaking corrective action 
under today's proposed approach might de facto remediate constituents 
other than the regulated constituents in the ground water. For example, 
a ground water extraction system with an air stripping treatment unit 
designed to remove site-specific regulated constituents could also 
strip and collect other VOCs present in the ground water. Facilities 
may also be required to remediate all ground water contamination under 
other state or federal actions or may remediate additional 
contamination voluntarily because of concern over liability associated 
with leaving ground water partially contaminated.
Alternatives to Ground Water Monitoring
    EPA is aware that the MSWLF rule does not adequately allow for 
alternatives to ground water monitoring when ground water monitoring is 
not practicable or would not detect early releases. For example, some 
landfills are located in arid regions where depth to ground water may 
exceed many hundreds of feet. In such a situation, ground water 
monitoring wells located at the margin of a unit might not intercept a 
release, as it might move laterally as well as vertically prior to 
intercepting the ground water at great depth. In addition, such wells 
would not detect a release until considerable contamination has entered 
the subsurface. EPA is currently developing a proposed rule to allow 
for alternative monitoring systems for remote, small arid landfills 
where monitoring of the unsaturated zone would afford early detection 
of releases before the release migrates to the ground water. EPA has 
not included a related provision in today's proposed rule, because 
existing information indicates that the affected facilities are located 
adjacent to bodies of water, where ground water under the facility 
would be close to the surface. As with other ground water monitoring 
programs, EPA encourages owners or operators to install innovative 
monitoring systems, such as vadose zone monitoring, in addition to 
ground water monitoring, if those systems would aid in the early 
detection of releases.
    (iii) Integration of option 2 with existing programs.--EPA is aware 
that many of the facilities that would be subject to the requirements 
of Option 2 will be undergoing ground water monitoring and corrective 
action under existing state or federal authorities. Approximately one 
half of the universe of affected facilities will be RCRA hazardous 
waste treatment, storage, or disposal facilities (TSDFs) that are 
permitted or operating under interim status. As noted above, at these 
facilities, the surface impoundments subject to the Phase IV rule will 
be ``solid waste management units'' (SWMUs) that are eligible for 
corrective action under Sec. 3004(u) and (v), Sec. 3008(h), Sec. 7003, 
and other authorities, such as CERCLA Sec. 106. These surface 
impoundments, as SWMUs, may or may not be undertaking ground water 
monitoring or corrective action when the Phase IV rule becomes 
effective. Similarly, certain states already require ground water 
monitoring or corrective action of surface impoundments, regardless of 
their status under RCRA Subtitles C or D. Further, some facilities 
affected by today's rulemaking may be conducting ground water 
monitoring and corrective action activities that are not required by a 
State or federal government.
    As stated above, to the extent that state programs require ground 
water monitoring and corrective action that include the UTS 
constituents of concern (or are modified to cover those constituents) 
and are substantially similar to today's proposal (i.e., frequency of 
monitoring, requirements regarding ground water monitoring wells), EPA 
is deferring to those State and Tribal programs. However, EPA 
anticipates that many of these state or federal corrective action 
ground water monitoring programs will not require monitoring of all of 
the regulated constituents identified by facilities subject to today's 
rule. Owners or operators could need to modify existing ground water 
monitoring programs to add any UHCs (and their associated 

[[Page 43672]]
ground water protection standards under 258.55(h)) that are not 
currently being monitored to avoid any of the potential Phase IV 
controls.
    EPA also seeks comment on a ground-water monitoring approach not 
proposed in today's rule. As an alternative, facilities that are 
triggered into ground water monitoring under today's rule would be 
required to undertake a detection monitoring program under 258.54, 
rather than commence directly with an assessment program. The purpose 
of a detection monitoring program in the MSWLF rule is to detect 
releases by monitoring a set of constituents or parameters that provide 
a reliable indication of ground water contamination. In the MSWLF rule, 
Appendix I to Part 258 was developed as a list of organic and inorganic 
constituents that are likely to be found in the ground water if 
releases occur from a MSWLF. As stated earlier, EPA does not believe 
that this list is appropriate for the facilities that are subject to 
today's rulemaking, as they do not have the type and variety of wastes 
that are typically found in landfills. Under this alternate option, EPA 
would not require facilities under today's rulemaking to monitor for 
Appendix I Part 258 parameters under their detection monitoring 
programs. Instead, facilities would be required to monitor for 
indicator parameters (such as specific conductance, total organic 
carbon, or total organic halogen), waste constituents, or reaction 
products that provide a reliable indication of the presence of 
hazardous constituents in ground water. If statistically significant 
levels were detected above background conditions of these indicator 
parameters, the facility would be required to undertake assessment 
monitoring, wherein the facility would analyze for the presence of UTS 
constituents, assess the potential for offsite releases, and initiate 
an assessment of corrective measures. This approach would shift the 
focus of the initial ground water monitoring program to the detection 
of releases, rather than the detection of site-specific UHCs that are 
regulated in today's rule. The MSWLF rule, under 258.54(1) and (2), 
lists several factors to allow an owner or operator to deviate from the 
Appendix I list under the approval of a state director. Under this 
alternative approach, facilities would establish an alternate list 
through self-implementation, rather than by state approval.
    (iv) Summary of specific requirements for ground water monitoring 
and corrective action from the MSWLF rule Sec. 258.51 ground water 
monitoring systems.--This section requires ground water monitoring 
systems (if constituent levels in impoundments exceed certain levels) 
to meet certain requirements and design specifications. Systems are 
required to monitor both background water quality and ground water at 
the point of compliance.
    Sec. 258.53  Ground Water Sampling and Analysis. This section 
requires that the owner/operator follow certain sampling and analysis 
procedures, including quality assurance and quality control, and 
specifies the number of samples taken and the statistical procedures to 
be followed.
    Sec. 258.55  Assessment Monitoring Program. As discussed above, EPA 
is proposing to require that owners or operators that would be 
compelled to undergo ground water monitoring under today's rule bypass 
the MSWLF rule detection monitoring program and undertake assessment 
monitoring directly. The purpose of the assessment monitoring program 
in today's proposed rule would be to monitor ground water for the 
presence of site-specific regulated constituents determined to be 
present in the decharacterized wastestream at the point of generation, 
and to assess whether any statistically significant releases need to 
undergo corrective action. The assessment monitoring program contains 
requirements for sample number and determination of background for 
constituents, criteria for moving into corrective action and additional 
monitoring requirements under corrective action. This section also 
requires the owner/operator to establish ground water protection 
standards for each of the regulated constituents as follows: (1) If an 
MCL is available, the MCL is the ground water protection standard; (2) 
if there is no MCL, the background concentration is used as the ground 
water protection standard; and (3) if the background concentration is 
greater than the MCL, the background level is the ground water 
protection standard. The Agency believes that it may not be reasonable 
to require the owner or operator to reduce the concentrations of 
hazardous constituents below background. (See 56 FR 51087, October 9, 
1991). Although background levels are not health-based standards, they 
are a practical measurement of what can be achieved by remediation and 
today's proposal would not preclude a State or other entity from 
requiring an owner or operator to clean up contamination below 
background levels where it is warranted. As noted earlier, specific 
federal (e.g., 3004(u) corrective action), state, local, or tribal 
levels also could be used in lieu of these levels.
    Furthermore, in light of the self-implementing nature of these 
specific standards for leaks for surface impoundments, the Agency is 
not adopting the provisions of 268.55(i) which address the site 
specific protection standards.
    As discussed above, EPA will not require owner/operators under 
assessment monitoring to scan the ground water for constituents listed 
in Appendix II to Part 258. Instead, facilities will move directly to 
assessment of regulated constituents as required in Sec. 258.56 if 
statistically significant levels of contaminants are found to exceed 
the ground water protection standard. More information on the required 
monitoring program can be found in ``Technical Support Document--
Options for Management Standards for Leaks, Sludges, and Air Emissions 
From Surface Impoundments Accepting Decharacterized Wastes'' in the 
RCRA Docket.
    Sec. 258.56  Assessment of corrective measures.--Within 90 days of 
finding that any of the regulated constituents have been detected at a 
statistically significant level exceeding the ground water protection 
standards, the owner/operator must undertake an assessment of 
corrective measures that addresses specified criteria.
    As discussed above, today's rule would also introduce the new 
requirement into Sec. 258.57 that once it is determined that corrective 
measures are necessary, the facility would be required to implement one 
of the following: (1) cease discharge of the decharacterized 
wastestream into the surface impoundment as soon as is practical (i.e., 
reroute decharacterized wastestream to a tank) or (2) installation of a 
double liner and leachate collection system.
    Sec. 258.57  Selection of remedy. Based on the results of the 
assessment required by Sec. 258.56, the owner/operator must select a 
remedy that meets several protectiveness standards. This section also 
requires that the owner/operator consider several evaluation factors 
when selecting a remedy and establish a schedule for initiating and 
completing the remedial activities. This section also allows for no 
remediation under enumerated circumstances, e.g., ground water is 
already contaminated by multiple sources and clean up of release would 
provide no significant reduction of risk. The Agency has determined 
that since these remediation waivers are not self-implementing, they 
will not be adopted as part of this proposal.

[[Page 43673]]

    Sec. 258.58  Implementation of the corrective action program. This 
section requires that once a remedy is selected, the owner/operator 
must implement a corrective action program that demonstrates compliance 
with the ground water protection standards established under 
Sec. 258.55. If necessary, the owner/operator must also take interim 
measures to protect human health and the environment. Other 
requirements in this section include implementing alternative methods 
or techniques for remediation if the selected remedy is not effective, 
and criteria for establishing when meeting the ground water protection 
standard cannot practicably be achieved.
5. Proposed Management Standards for Sludges
    a. Scope. Under Option 2, the Agency would require management 
standards for sludges from prebiological surface impoundments in CWA, 
CWA-equivalent, or nonhazardous wastewater treatment systems that 
accept decharacterized wastes, when the sludges are removed from the 
impoundments for land disposal elsewhere. Data available to the Agency 
indicate that UHCs may be present in the decharacterized wastewaters 
and may be transferred to sludges in these impoundments at 
concentrations that pose a threat to human health and the environment. 
The Agency has limited data indicating biological or post-biological 
surface impoundment sludges do not pose significant risks when 
disposed. Nor would the Agency expect significant concentrations of 
hazardous constituents to be present. A more detailed discussion of 
today's proposed rule can be found in the technical support document 
entitled, ``Technical Support Document for Leaks, Sludges, and Air 
Emissions--Phase IV.''
    b. Rationale. The approach for sludges under this option is 
conceptually similar to that proposed for the ground water and air 
exposure scenarios. If sludges contain hazardous constituents in excess 
of levels that pose a risk to human health or the environment (see 976 
F. 2d at 17), this form of cross-media transfer of hazardous 
constituents could be considered too excessive to allow the impoundment 
to be considered an equivalent form of treatment, unless the sludges 
were to be treated to remove that risk. Under this option, the 
evaluation would be made at the time sludges are removed from the 
impoundment, not while the sludges remain within an impoundment. This 
is because EPA does not believe in-place sludges would be a release 
pathway separate from the leaks pathway. Put another way, by 
controlling leaks (as explained in the previous section), any risks 
posed by sludges while in the impoundment should be accounted for. 
Consequently, any potential incremental risk would arise when the 
sludges are disposed elsewhere. (Cf. RCRA section 3005 (j) (11) 
indicating that treatment standards for hazardous sludges do not apply 
while sludges are in the impoundment, and thus apply only when the 
sludges are removed and land disposed).
    EPA is proposing the technology-based UTS as the benchmark for 
evaluating whether sludges are capable of posing significant risk. This 
approach could be replaced when the Agency develops risk-based levels 
through the Hazardous Waste Identification Rule process. In the 
interim, the UTS standards serve as the best available measure of when 
threats are minimized, and treatment to those levels certainly 
satisfies any requirement of equivalent treatment.
    EPA also reiterates that, as a legal matter, it can be argued that 
even no treatment of sludges is equivalent to subtitle C LDR controls. 
This is because generation of sludges is usually a new point of 
generation at which the newly-generated waste is reevaluated to 
determine if it is subject to the LDR standards. If non-hazardous, the 
sludges would not be so subject (i.e., would not be prohibited wastes). 
See 55 FR 22661-62. Thus, literal application of an equivalence test 
would result in no treatment of these sludges, since the sludges will 
be non-hazardous wastes by definition (they cannot be hazardous wastes 
because they are being generated in subtitle D impoundments), and so 
would not require further treatment under the standard subtitle C 
approach.
    c. Applicability. For a simplified guide to applicability criteria 
and management standards for sludges, see Figure 4.

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[[Page 43675]]

    d. Determining UHC concentrations in surface impoundment sludges. 
The Agency would require sampling of the sludges removed from 
prebiological surface impoundments at the time the sludges are removed 
to determine if the concentrations of UHCs in the removed sludge exceed 
UTS. Representative sampling and analysis of the sludge need only be 
conducted for those UHCs identified in the characteristic wastewater at 
the point of generation. A more detailed discussion of representative 
sampling and analyses is provided in the technical support document 
entitled, ``Technical Support Document for Leaks, Sludges, and Air 
Emissions--Phase IV.''
    e. Management standards. If the concentration level of one or more 
of the UHCs exceeds UTS, then the sludge must be treated by means other 
than dilution to meet UTS. If the surface impoundment will no longer be 
receiving decharacterized wastewaters, then the owner or operator would 
be required to conduct representative sampling of the sludges when 
sludges are next removed from the impoundment. No further sampling of 
removed sludges would be required after decharacterized wastes are no 
longer received by the unit.
6. Recordkeeping Requirements for Leaks and Sludges
    Under Option 2, the Agency would establish recordkeeping 
requirements for leaks and sludges. An owner or operator that utilizes 
surface impoundments in CWA, CWA-equivalent, or non-hazardous 
wastewater treatment systems to manage decharacterized wastes would 
have to maintain records of any test results, waste analyses, or other 
determinations for at least three years.
7. Sampling and Analysis
    The Agency would like to point out that the sampling and analysis 
requirements are not overly burdensome. Owners and operators that would 
be affected by today's proposed Phase IV rules would only be required 
to perform a minimum number of analyses. Generator knowledge could be 
used in lieu of sampling and analysis. See section I.D.3.c. for a 
discussion of what constitutes acceptable generator knowledge.
I. Option 3
    A final option to address the potential problem of releases of 
hazardous constituents from decharacterized wastes in surface 
impoundments is to require that such wastes meet UTS for the UHCs 
before entering the impoundment (unless the impoundment satisfies 
Minimum Technology Requirements or the statutory no migration 
standard). A waste could be aggregated and diluted, but achievement of 
UTS for the hazardous constituents would have to be accomplished by 
mass removal/destruction before entering a surface impoundment. The 
pollution prevention compliance alternative and the de minimis 
exemption would be allowed for Option 3. For a simplified guide to 
Option 3, see Figure 5.

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[[Page 43676]]
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BILLING CODE 6560-50-C

[[Page 43677]]

    It should be noted that this option is already available as a means 
of complying with any of the requirements in Option 2. The question 
here is whether this should be the only alternative allowed. EPA's view 
is that it should not be the exclusive approach, for reasons of law and 
policy. This approach destroys the very accommodation between the CWA 
and RCRA upheld by the D.C. Circuit. It would invalidate impoundment-
based treatment systems, even if such treatment systems can be shown to 
be equivalent to RCRA treatment within the meaning of the opinion. 
Since the court hinted that RCRA ``requires'' some accommodation with 
the CWA on this issue (976 F. 2d at 20), there is some question whether 
EPA even has the authority to mandate the approach. The Agency believes 
the approach unwise in any case, and has so stated in the Third rule 
itself as well as later discussions. Very simply, impoundment-based 
wastewater treatment systems can be effective means of treating 
decharacterized wastewaters, and can do so without undermining core 
values of RCRA and the LDR program. Consequently, such treatment should 
not be effectively invalidated by requiring all treatment of 
characteristic wastes to occur upstream of impoundments.

II. Proposal Not to Ban Nonamenable Wastes From Land-Based Biological 
Treatment Systems

    Summary: EPA believes that prohibiting certain decharacterized 
wastes from land-based wastewater treatment systems on the basis of 
whether the constituents in those wastes are ``amenable'' to biological 
treatment is unnecessary at this time. Instead, EPA is proposing to 
prevent excessive environmental contamination of hazardous constituents 
that leave surface impoundments. Technical obstacles present another 
reason not to ban nonamenable wastes.

A. Background

    The Environmental Technology Council (ETC) has suggested that EPA 
develop regulations restricting Subtitle D surface impoundment disposal 
of organic compounds and metals resistant to biological degradation in 
these units. The Chemical Manufacturer's Association (CMA) provided EPA 
with comments on ETC's suggested approach. These strategies focused on 
identifying those constituents which are relatively resistant to 
biological degradation in order to develop regulations setting maximum 
acceptable concentrations for these constituents in surface impoundment 
influent. The Phase III proposed LDR rule summarizes the ETC and CMA 
positions, and discusses several technical issues (41 FR 11717). ETC's 
comment is included in the rulemaking docket for the Phase III 
proposal.

B. Rationale for Proposing Not to Ban Nonamenable Wastes From 
Biological Treatment Systems

    EPA has carefully considered the policy and technical issues raised 
by the suggestion to ban nonamenable wastes from biological treatment 
impoundments. The Agency believes that the key issue of whether such 
impoundments serve as transfers of nonamenable constituents to air, 
leaks, sludges, or discharges to surface waters is best addressed by 
the Phase III end-of-pipe limits on constituents, coupled with the 
options in Section I of this preamble. The provisions in Phase III and 
Phase IV are designed to protect human health and the environment from 
hazardous constituents in surface impoundments, therefore, there is no 
need to regulate nonamenable wastes. Additionally, if constituents are 
not excessively migrating to ground water through leaks, to air through 
emissions, adsorbing onto sludge sediments, or being discharged at the 
end of pipe, then EPA can be reasonably certain that treatment in the 
impoundment is adequate.
    Furthermore, EPA believes that the technical impediments to banning 
nonamenable wastes from biological treatment impoundments are 
significant. First, the design and operating conditions of biological 
treatment can vary widely. Second, the ``amenability'' of constituents 
at the point of generation may not reflect the ultimate amenability in 
the biological treatment system. Finally, variations in the influent 
stream composition, acclimation of the biomass, and the effect of other 
constituents add another level of uncertainty to the process of 
determining the amenability of a particular waste stream. These 
multiple uncertainties make an accurate assessment of amenability on 
the level of the stream or of the constituent extremely difficult.

III. Improvements to Land Disposal Restrictions Program

A. Clean Up of Part 268 Regulations

    In today's rule, EPA is proposing to ``clean up'' existing 
regulatory language that is outdated, confusing, or unnecessary. Some 
sections are clarified, some have been condensed, while others are 
altogether removed. Comments are solicited on the proposed changes that 
follow.
1. Section 268.4
    Section 268.4(a)(2)(iv) would be changed to read, ``Recordkeeping. 
The sampling, analysis, and recordkeeping provisions of Secs. 264.13 
and 265.13 apply.'' The existing language in Sec. 268.4 duplicates the 
substantive requirements of Secs. 264.13 and 265.13. Referencing the 
Secs. 264.13 and 265.13 requirements in Sec. 268.4 clarifies that there 
are no additional recordkeeping requirements at Sec. 268.4; the general 
facility recordkeeping requirements apply, thus the LDR program does 
not add additional burden.
2. Section 268.5
    Section 268.5(e) would be amended to clarify that an applicant 
could be granted additional time (up to one year) beyond the one-year 
case-by-case extension; when first applying for the case-by-case 
extension, the applicant would be required to show that the additional 
time (beyond the extension in the first year) would be necessary to 
provide capacity to treat the applicant's waste. Comments are requested 
on this issue.
3. Section 268.7
    Much of the language specifying what must be included on LDR 
notifications at Sec. 268.7 needs revision; therefore, this section is 
proposed to be rewritten to reflect changes, clarify the existing 
notification requirements, and generally simplify the requirements for 
generators of hazardous waste. The proposed changes in Sec. 268.7(a) 
would result in renumbering of the paragraphs. The new numbering scheme 
for this section is used in this discussion. Also, the generator 
paperwork requirements are proposed to be consolidated into a table at 
Sec. 268.7(a)(4), and the treatment facility requirements into a table 
at Sec. 268.7(b)(4).
    References in Part 268 to LDR treatment standards that have 
previously been found in tables in Secs. 268.41, 268.42, and 268.43, 
are proposed to be changed to refer to the consolidated table in 
Sec. 268.40--Treatment Standards for Hazardous Wastes.
    References to Sec. 268.32 and RCRA 3004(d), California List wastes, 
are removed, because the treatment standards for these wastes have been 
superseded by subsequent treatment standards.
    In Sec. 268.7(a)(3), the rule requires that to each receiving land 
disposal facility, a notification must go with each shipment of 
restricted waste that meets 

[[Page 43678]]
the LDR treatment standards as generated. The notice must identify the 
waste and applicable subcategories, the manifest number, and other 
information, along with a certification statement saying that the waste 
meets the treatment standards. As a streamlining measure in today's 
rule, the Agency is proposing that when a generator whose waste meets 
the appropriate treatment standards, and the composition of these 
wastes or the process generating the waste does not change, then they 
are only required to submit a one-time notification and certification 
to the receiving facility. A copy of the notification and certification 
must be kept in the generator's file. If the waste changes, then the 
generator must send a new notice and certification to the receiving 
facility, and place a copy in their files.
    In Sec. 268.7(a)(5), if generators are managing prohibited wastes 
in tanks, containers, or containment buildings, they are required to 
submit a waste analysis plan to the EPA Regional Administrator or 
authorized State for their review of the testing plan. As a 
streamlining measure, EPA is proposing to delete the requirement that 
generators submit the waste analysis plans to States and Regions. 
Comments are requested on this issue.
    The record retention time period in Sec. 268.7(a)(8) is proposed to 
be changed from five to three years, in order to make LDR requirements 
consistent with other RCRA record retention periods.
    The lab pack notification requirements of Sec. 268.7(a)(8) are 
proposed to be streamlined to include only the requirements of 
Secs. 268.7(a)(2), 268.7(a)(6), and 268.7(a)(7). This is possible 
because the alternative treatment standard for lab packs specifies a 
method of treatment rather than concentration levels that would have to 
be monitored after treatment. There is, therefore, no need to know 
whether the wastes in the lab packs are wastewaters or nonwastewaters 
or are hazardous debris (these are data items proposed to be deleted 
from the lab pack notification). The Agency solicits comments on this 
assumption.
    In Sec. 268.7(b), the first sentence--Treatment facilities must 
test * * * as required by Sec. 264.13 or Sec. 265.13--is proposed to be 
clarified so that it is more obvious that Sec. 264.13 contains the 
requirements for permitted treatment, storage and disposal facilities 
and Sec. 265.13 contain the requirements that apply to interim status 
facilities.
    In addition, the sentence, ``* * * test method described in 
appendix I of this part or using any methods required by generators 
under Sec. 268.32 of this part * * *'' is changed to read, ``* * * test 
method described in `Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,' EPA Publication SW-846.'' Specific reference to EPA 
Publication SW-846 for the Toxicity Characteristic Leaching Procedure 
gives the regulated community a more direct reference for details of 
the test method. Furthermore, the Agency is proposing to add a table 
that more clearly indicates the items to be included on notifications 
under this section, and is changing all references to Secs. 268.41, 
268.42, and 268.43 to refer to the Table of Treatment Standards in 
Sec. 268.40.
    In section 268.7(c)(2), the sentence, ``* * * test method described 
in appendix I of this part or using any methods required by generators 
under Sec. 268.32 of this part * * *'' is changed to read, ``* * * test 
method described in `Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,' EPA Publication SW-846.'' Specific reference to EPA 
Publication SW-846 for the Toxicity Characteristic Leaching Procedure 
gives the regulated community a more direct reference for details of 
the test method.
6. Section 268.9
    In section 268.9, paragraphs (a), and (b) are proposed to be 
revised to clarify how wastes should be identified when they are both 
listed and characteristic wastes. The revisions do not propose any 
substantive changes to these paragraphs. The existing regulations 
require that for the LDR notification, a waste must be identified as a 
listed waste and also as a characteristic waste unless the listed waste 
has a treatment standard for the constituent or addresses the hazardous 
characteristic that causes the waste to also be characteristically 
hazardous. If the listed waste has treatment standards that address all 
characteristics, then the characteristic waste codes do not attach.
    In paragraph (d)(1)(ii), the language has been edited to clarify 
that if all underlying hazardous constituents reasonably expected to be 
present in a characteristic waste will be monitored, then the generator 
need not list any of them on the LDR notification. If, however, a 
subset of underlying hazardous constituents will be monitored, they 
must be included on the LDR notification. This is not a substantive 
change, because such language was already placed in 40 CFR 268.7(a) in 
the technical correction to the Phase II final rule (60 FR 245, January 
3, 1995).
5. Sections 268.30-268.37
    Sections 268.31-268.37 are proposed to be removed because the 
treatment standards for wastes in these sections are now in effect, 
thus all these wastes are now prohibited from land disposal. The 
sections are, thus, no longer needed and are proposed to be removed. 
Old Sec. 268.30 is proposed to be replaced by a new section that 
provides the prohibition dates of the wastes included in this proposed 
rule.
6. Appendices
    Appendix I is proposed to be removed and reserved because the TCLP 
test method reference to SW-846 will be incorporated into the text of 
the regulatory language.
    Appendix II to Part 268 is also proposed to be removed and reserved 
because it incorrectly refers to treatment standards in Secs. 268.41, 
268.42, and 268.43 (they are now in Sec. 268.40); furthermore, there is 
no longer a need for a reference to the solvent treatment standards.
    Appendix III is proposed to be removed and reserved because the 
California List treatment standards have been superseded by Universal 
Treatment Standards, thus there is no need for a listing of halogenated 
organic compounds because they are California List wastes.
    Appendix VI is proposed to be amended to clarify that 
characteristic wastes that also contain UHCs must be treated not only 
by a ``deactivating'' technology to remove the characteristic, but also 
treated to achieve the UTS for UHCs.
    Appendix VII is proposed to be removed and reserved because all the 
wastes in the table have treatment standards now in effect, thus there 
is no need to know the effective dates, waste by waste. Likewise, 
Appendix VIII is proposed to be removed and reserved because the 
effective dates for these wastes when injected into deep injection 
wells are past, thus are no longer needed.
    Appendix IX is proposed to be removed because as of the Phase IV 
rule, all characteristic metal treatment standards are based on 
toxicity using the TCLP rather than the Extraction Procedure (EP). 
There is no longer any need for a reference to the EP.
    Appendix X is proposed to be removed and reserved because it 
summarizes paperwork requirements that are proposed to be changed in 
the Phase III proposal and this proposal. Furthermore, if the Agency 
finalizes the paperwork tables discussed in this section of the 
preamble in Secs. 268.7(a) 

[[Page 43679]]
and 268.7(b), there is no need for summary tables in the appendix.
    The Agency is committed to identifying new ways the LDR program can 
be simplified, and will continue to seek additional opportunities for 
such streamlining efforts in the future.

B. Simplification of Treatment Standard for Waste Code F039

    Summary: Today's proposal simplifies the presentation of the 
treatment standard for multisource leachate, which is waste code F039.
    Discussion: With the promulgation of the Universal Treatment 
Standards (UTS) in the Phase II rule (59 FR 47982), there is no longer 
a need for the separate list of constituents for F039 which currently 
appears in the table titled ``Treatment Standards for Hazardous 
Wastes'' at 40 CFR 268.40. EPA proposes that F039 meet all the UTS for 
the constituents at Sec. 268.48, with the exceptions of fluoride, 
vanadium, and zinc. In other words, while F039 remains the waste code 
for leachate from hazardous waste disposal facilities, the treatment 
standards for wastewater and nonwastewater forms of individual 
constituents now reference the UTS (Sec. 268.48), with the exceptions 
of fluoride, vanadium, and zinc.

C. POLYM Method of Treatment for High-TOC Ignitable D001 Wastes

    Summary: EPA proposes to add polymerization (POLYM) to the set of 
required methods of treatment designated Best Demonstrated Available 
Technology (BDAT) for high-TOC ignitable (D001) wastes resulting from 
commercial polymerization processes.
    Discussion: Polymerization (POLYM) processes convert deactivated 
waste into a chemically stable plastic in the same manner that 
commercial plastics were formed with the reagent which is being 
disposed of as a high-TOC D001 waste.
    The National Marine Manufacturer's Association contacted EPA with 
concerns that the May 1993 Interim Final Rule (58 FR 29860) prohibited 
the practice of polymerizing excess polyester/styrene waste left over 
from the manufacture of modular shower stalls and recreational boats. 
The prohibition was actually established in the 1990 Third Third (55 FR 
22520). In these manufacturing processes polyester/styrene reacts with 
methyl ethyl ketone peroxide in a mold to form fiberglass. The 
ignitable waste polyester/styrene and MEK peroxide are the wastes of 
concern.
    Waste polyester/styrene monomers and MEK peroxide are commonly 
disposed of by reacting small quantities together to create fiberglass 
scraps. The waste polyester/styrene monomers and MEK peroxide are 
currently regulated as high-TOC ignitable wastes for which the current 
standard is treatment by CMBST (combustion) or by RORGS (recovery of 
organics) before land disposal. Neither CMBST nor RORGS allows for 
polymerization of high-TOC ignitable wastes into inert materials which 
do not exhibit any characteristics of toxicity, ignitability, 
corrosivity or reactivity. The Agency believes that the ongoing 
practice of polymerizing characteristic wastes to a noncharacteristic 
inert mass adequately protects human health and the environment.
    Today's rule proposes POLYM as an alternative to CMBST or RORGS for 
those high-TOC D001 wastes which are chemical components in the 
manufacture of plastics. POLYM requires the addition of a polymerizing 
component or catalyst to the discarded high-TOC D001 monomer stream 
intended for land disposal. POLYM is defined as ``Formation of complex 
high-molecular weight solids through polymerization of monomers in 
high-TOC D001 nonwastewaters.'' The Agency notes that the accumulation 
time provisions for on-site storage of hazardous waste in tanks (40 CFR 
262.34) allow facilities to store waste monomers and catalysts up to 90 
days after the ignitable components are discarded provided that these 
wastes are kept in adequate tanks. (40 CFR 262.34(a)(1)(ii)).

IV. Exclusion for Recycled Wood Preserving Process Wastewaters

    Summary: In response to wood preserving industry concerns that 
production wastewaters being reclaimed are improperly classified as 
solid waste under RCRA Subtitle C, EPA is providing an opportunity for 
the industry to supply information that could potentially form the 
basis for an industry-wide variance.
    Discussion: EPA has recognized that certain wastes from wood 
preserving and surface protection, most notably drippage, are reclaimed 
and then returned to the wood preserving process for reuse (see 53 FR 
53311). The Agency received numerous comments to its proposed wood 
preserving rule claiming that waste recycling and reuse practices at 
wood preserving and surface protection plants should be excluded from 
the definition of solid waste.
    In its December 6, 1990 wood preserving listing, EPA rejected that 
claim. The Agency stated that the current regulations correctly 
classify drippage and wastewaters from the wood processing industry 
destined for reclamation as solid waste since the capture and 
conveyance mechanisms used in the operation do not meet the terms of 
the Sec. 261.4(a)(8) closed-loop exclusion (see 53 FR 50460). While 
rejecting any broad attempt to exclude these wastes from the definition 
of solid waste, the Agency did point out a variance provision in the 
regulations, Sec. 260.30 and Sec. 260.31(b), that could apply to the 
wood preserving industry. The provision allows for variances to be 
granted on a case-by-case basis to individual facilities, provided that 
an EPA Regional Administrator or authorized State Director makes a 
determination that a particular reclamation operation is an essential 
part of the production process, taking into account a number of 
criteria, including how carefully the material is handled before it is 
reclaimed (see 53 FR 50460).
    The Agency's rationale for creating the Sec. 260.30 and 
Sec. 260.31(b) variance was that it may be inappropriate to regulate a 
reclamation process under RCRA when the process is an essential part of 
production, assuming the secondary materials being reclaimed are not 
part of the waste disposal problem. Section 260.31(b) lists a number of 
criteria to be considered by a regulator when determining whether a 
reclamation operation meets the terms of this provision. Although this 
variance was originally intended to be granted on a case-by-case basis, 
if these criteria can be demonstrated on an industry-wide basis, EPA 
will consider a conditional exclusion. Comments are requested on the 
extent to which the reclamation of production wastewaters from the wood 
preserving industry meet the criteria found in Sec. 260.31(b).
    Section 260.31(b)(3), which requires the regulator to take into 
account ``the extent to which the material is handled before 
reclamation to minimize loss,'' is of particular interest in evaluating 
this reclamation operation. In the wood preserving industry, this would 
certainly apply to releases from a drip pad, clearly a waste and 
clearly a potential part of the waste management problem (damage cases 
described in 53 FR 53323), and the extent to which such releases could 
be prevented. It appears that prevention of drip pad releases could be 
adequately achieved through compliance with 40 CFR 264, Subpart W (drip 
pads). EPA is interested in receiving comments on any alternative and 
perhaps better ways that the industry might meet the Sec. 260.31(b)(3) 
standard.
    As part of an ongoing effort to revise the current definition of 
solid waste, EPA is taking a close look at the regulations for on-site 
recycling. In the 

[[Page 43680]]
meantime, we are willing to consider quicker action on wood processing 
production wastewaters, provided we receive adequate information to 
make an industry-wide determination that the reclamation operation is 
an essential part of production and that the secondary materials being 
reclaimed are not likely to be a part of the waste disposal problem.

V. Treatment Standards for Newly Listed and Identified Wastes

A. Background

    The Hazardous and Solid Waste Amendments (HSWA) to RCRA, which were 
enacted on November 8, 1984, largely prohibit the land disposal of 
untreated hazardous wastes. RCRA requires EPA to promulgate treatment 
standards for a waste within six months after determining it is 
hazardous (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 that establishes a schedule for adopting 
prohibitions and treatment standards for newly identified and listed 
wastes. (EDF v. Reilly, Cir. No. 89-0598, D.D.C.). Today's notice 
proposes treatment standards for two of those waste groups: wood 
preserving wastes and metal wastes that are considered hazardous under 
the revised Toxicity Characteristic (TC).

B. Treatment Standards for Soil Contaminated With Newly Listed Wastes

    The Agency has stated a presumption 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).
    EPA is proposing a national capacity variance for soil and debris 
contaminated with Phase IV newly listed wastes. If the capacity 
variance is made final, any site-specific treatability variance would 
not be necessary during the period the capacity variance is in effect.

C. Treatment Standards for Wood Preserving Wastes 2

    \2\ These listings do not include K001 bottom sediment sludge 
from the treatment of wastewater from wood preserving processes that 
use creosote and/or pentachlorophenol.
---------------------------------------------------------------------------

    Summary: NEPA is proposing to apply Universal Treatment Standards 
(UTS) to wood preserving wastes (F032, F034, and F035).
1. Identification of Wastes
    F032--Wastewaters, process residuals, preservative drippage, and 
spent formulations from wood preserving processes generated at plants 
that currently use or have previously used chlorophenolic 
formulations.3

    \3\ This treatment standard would apply except where potentially 
cross-contaminated wastes have had the F032 waste code deleted in 
accordance with section 40 CFR 261.35 and where the generator does 
not resume or initiate use of chlorophenolic formulations.
---------------------------------------------------------------------------

    F034--Wastewaters, process residuals, preservative drippage, and 
spent formulations from wood preserving processes generated at plants 
that use creosote formulations.
    F035--Wastewaters, process residuals, preservative drippage, and 
spent formulations from wood preserving processes generated at plants 
that use inorganic preservatives containing arsenic or chromium.
    Wastes from the wood preserving industry, F032, F034, and F035, 
were listed as hazardous on December 6, 1990, (see 55 FR 50450). EPA is 
proposing to regulate specific constituents from each of these 
hazardous wastes groups. (A list of the hazardous constituents proposed 
for regulation are found within the Table at the end of this preamble 
discussion.) These wastes are generated during the treatment or 
preservation of wood products such as poles, crossarms, timbers, rail 
road ties, and fence posts. Pentachlorophenol, creosote, and inorganic 
arsenical and/or chromated salts are the primary active ingredients 
that are used to preserve wood products. The application of these 
chemicals generate wastewaters, process solid residuals, preservative 
drippages, and spent formulations. The listing document for F032, F034, 
and F035 provides additional information on the processes generating 
each of these wastes.
2. Proposed Treatment Standards
    After reviewing the available characterization data on untreated 
and treated wastes that are believed to be at least as difficult to 
treat as F032, F034, and F035, EPA has determined that UTS are 
technically achievable for the constituents proposed for regulation in 
F032, F034, and F035. (The BDAT background document provides 
information on EPA's rationale for developing and applying UTS to these 
wastes. Also see LDR Phase II final rule, 59 FR 47982, September 19, 
1994, for further discussion of UTS.) EPA is thus proposing that each 
constituent proposed for regulation in F032, F034, and F035 comply with 
its applicable UTS in the treatment standard table at 40 CFR 268.40, as 
a prerequisite for land disposal.
    EPA believes that this proposal is consistent with EPA's efforts to 
ease compliance burdens by setting one treatment standard for the same 
regulated constituent in various wastes. Wood preserving facilities 
currently manage these hazardous wastes at commercial hazardous waste 
management facilities that manage wood preserving wastes as well as 
other hazardous wastes prohibited from land disposal. These commercial 
treatment facilities will likely commingle wood preserving wastes with 
other similar wastes in treatment trains that achieve UTS. Furthermore, 
the data available on the treatment of wastes believed to be as 
difficult, or more difficult, to treat as F032, F034, and F035 support 
the achievability of UTS.
3. Review of Available Characterization Data
    EPA has reviewed available characterization data on F032, F034, and 
F035 from documents supporting the listing of these wastes as 
hazardous. EPA has also used additional data gathered by EPA on F035 
during 1991 (EPA's 1991 study), which include data on untreated and 
treated F035 wastes (with the exception of one study that describes the 
bench scale treatment of a CCA formulation believed to simulate the 
treatment of F035 wastewaters) from three wood preserving facilities; 
from untreated and treated F035 wastes commingled at a hazardous waste 
treatment facility prior to their 

[[Page 43681]]
stabilization with lime and cementious agents; from an EPA in-house 
treatability study of F035 via stabilization with lime, fly ash, and 
cementious agents; and, from an EPA in-house feasibility study to 
selectively remove arsenic, chromium, and copper from a synthetic 
simulated F035 wastewater.
    Other literature consulted includes EPA's Preliminary Data Summary 
for the Wood Preserving Segment of the Timber Products Processing Point 
Source Category, September 1991 (EPA 440/l-91/023) (referred to here as 
the 1991 Preliminary Data Summary of the Wood Preserving Industry (1991 
PDSWPI)). Other documents reviewed include 1986-1990 summary abstracts 
on the treatment of F032, F034, and F035 contaminated soils at 
Superfund sites, other literature published on the treatment of wood 
preserving and petroleum refining contaminated soils, and data 
submitted by commenters on the Advanced Notice of Proposed Rulemaking 
of October 21, 1990 (ANPRM) (see 56 FR 55160) and the LDR Phase II rule 
of September 19, 1994 (59 FR 47980).
4. Determination of Best Demonstrated Available Technology (BDAT)
    a. Nonwastewaters. For nonwastewater forms of F032 and F034, the 
proposed treatment standards of each of the organic constituents are 
based on the combustion of wastes believed to be as difficult, or more 
difficult, to treat as F032 and F034. For metals in nonwastewater forms 
of F032, F034, and F035, EPA has determined that stabilization is BDAT 
for chromium (total), and that vitrification is BDAT for arsenic.
    b. Wastewaters. For wastewater forms of F032 and F034, the proposed 
UTS for each organic constituent are based on treatment technologies 
such as biological treatment, steam stripping, carbon absorption, or by 
a train of two or more wastewater treatment technologies. The proposed 
treatment standards for metals in wastewater forms of F032, F034, and 
F035 are based on lime addition followed by sedimentation, and 
filtration for arsenic and in chemical precipitation followed by 
sedimentation for chromium. Like chromium, copper, lead, and zinc are 
also amenable to chemical precipitation followed by filtration.
    EPA believes that the treatment technologies supporting the 
proposed UTS are also BDAT for F032, F034, and F035. This is because 
they are demonstrated for wastes as difficult or more difficult, to 
treat. EPA also believes that none of the hazardous constituents in 
F032, F034, and F035 are likely to interfere with the treatment of the 
constituents proposed for regulation. In addition, EPA reviewed the 
performance of other thermal and non-thermal treatment or recovery 
technologies demonstrated on wastes similar to F032, F034, and F035. 
EPA believes that these other technologies can reach or can be 
optimized to meet the proposed UTS limits. Therefore, the Agency is not 
prohibiting the use of other technologies capable of achieving the 
proposed treatment standards except for those constituting land 
disposal or impermissible dilution.
5. Proposed Regulation of Dioxin and Furan Constituents in F032
     EPA has found in F032 homologues of polychlorinated di-benzo-p-
dioxins (PCDDs) and polychlorinated di-benzofurans (PCDFs). These 
homologue-isomers are a result of impurities from formulations that 
employ chlorophenolic chemicals such as pentachlorophenol (PCP) and 
other chlorinated aromatic hydrocarbons. EPA is proposing treatment 
standards that would require meeting a concentration that does not 
exceed l ppb (also expressed as ug/kg) for all the PCDD and PCDF 
homologue and isomer constituents proposed for regulation. EPA also 
requests data on the treatment of these constituents.
    Commenters to the ANPRM of April 1991, were concerned that the 
selection of PCDD and PCDF as hazardous constituents in nonwastewater 
forms of F032 could result in commercial treatment facilities refusing 
to manage F032 wastes due to public sensitivities about these 
chemicals. Some commenters urged EPA not to regulate PCDD and PCDF but 
rather, to regulate surrogate constituents such as pentachlorophenols, 
gross parameters such as total suspended solids and oil and grease 
levels, or precursor constituents of PCDD and PCDF such as 
``hexachlorobenzene, 1,2,4-trichlorobenzene, and 1,2,4,5-
tetrachlorobenzene''. Only one commenter, however, submitted data on 
the use of alternate constituents. The data consisted of the influent 
characterization data for wastewaters treated via biological treatment 
and the end-of-pipe treated effluents. The data did not include the 
concentrations of PCDD and PCDF that were achieved in the biosludges 
and end-of-pipe treated wastewater effluents; thus EPA is unable to 
determine how the monitoring of alternative constituents or gross 
parameters can ensure the destruction of PCDD and PCDF constituents.
    Other commenters requested that EPA defer or forgo the regulation 
of PCDD and PCDF in F032. They believe that regulation of other 
hazardous constituents in F032 will provide PCDD and PCDF with adequate 
treatment. No data were provided to support these statements.
    EPA believes that the regulation of PCDD and PCDF is necessary to 
ensure their destruction. PCDD and PCDF are relatively insoluble in 
wastewaters. Because they tend to adhere to suspended particles, they 
may go untreated through wastewater treatment systems. Also, PCDD and 
PCDF can be solubilized in oils, and thus may go untreated through 
biological treatment systems. In contrast, EPA has data from the 
combustion of hazardous wastes and soils which shows that the 
combustion of PCDD- and PCDF-constituents wastes in two stage 
combustion devices leaves behind incineration ash and other residues 
with PCDD and PCDF levels below 1 ppb. Other performance data include 
residues from other thermal destruction devices such as supercritical 
oxidation (Hubber Process) and infrared incineration (Shirco reactor).
    Another consideration in proposing regulation of PCDD and PCDF is 
that FO32 can potentially contain concentrations of up to 300 ppb in 
wastewaters and between 1 ppb to 140,000 ppb in nonwastewaters. These 
concentrations become more significant if they are allowed to go 
untreated in non-thermal treatment technologies such as separation and 
filtration. EPA has identified one commercial facility currently 
permitted to combust wastes that may have PCDD and PCDF constituents 
with concentrations one to two orders of magnitude higher than those 
levels found in F032.
    For nonwastewater forms, the proposed treatment standards are based 
on the performance of combustion. For wastewater forms, the proposed 
treatment standards are based on the performance of biological 
treatment. As mentioned earlier, other aggressive oxidation 
technologies such as infrared incineration (Shirco process), 
supercritical oxidation (Hubber process), and pyrolytical destruction 
devices can also achieve the proposed treatment standards. EPA requests 
comments on the use of non-thermal treatment technologies that have 
been optimized to treat PCDD and PCDF in wastes as difficult to treat 
as F032. In particular, EPA requests comments on whether non-thermal 
technologies such as chemical dechlorination via the use of the 
Alkaline Polyethylene Glycolate (APEG or KPEG) process or the Based 
Catalyzed Decomposition process and 

[[Page 43682]]
ultraviolet (uv) photolysis are also capable of achieving limits at or 
below the proposed UTS limits for dioxins and furans in wastewater and 
nonwastewater forms of F032. EPA has been testing the applicability of 
the BCD Process and APEG on various chlorinated wastes and contaminated 
soil, and wood preserving wastes. EPA expects to make the results of 
the BCD treatability studies available to the public in the fall of 
1995.

                                  Proposed BDAT Standards for F032, F034, F035                                  
                                        [Wastewaters and nonwastewaters]                                        
----------------------------------------------------------------------------------------------------------------
                                      Wastewaters    Nonwastewaters      Constituents proposed for regulation   
                                    maximum for any    maximum for  --------------------------------------------
                                         24 Hr.         any grab                                                
                                       composite         sample                                                 
            Constituent            ---------------------------------                                            
                                         Total            Total           F032           F034           F035    
                                    composition(mg/    composition                                              
                                           l)            (mg/kg)                                                
----------------------------------------------------------------------------------------------------------------
Phenols:                                                                                                        
    Phenol........................        0.039              6.2     x                                          
    2,4-Dimethylphenol............        0.035             14.0     x              .............               
    2,4,6-Trichlorophenol.........        0.035              7.4     x                                          
    2,3,4,6-Tetrachlorophenol.....        0.035              7.4     x                                          
    Pentachlorophenol.............        0.089              7.4     x                                          
PAHs:                                                                                                           
    Acenaphthene..................        0.059              3.4     x              x                           
    Anthracene....................        0.059              3.4     x              x                           
    Benz(a)anthracene.............        0.059              3.4     x              x                           
    Benzo(a)pyrene................        0.061              3.4     x              x                           
    Benzo(k)fluoranthene..........      * 0.11             * 6.8     x              x                           
    Chrysene......................        0.059              3.4     x              x                           
    Dibenz (a,h) anthracene.......        0.055              8.2     x              x                           
    Fluorene......................        0.059              3.4     x              x                           
    Indeno(1,2,3-c,d)pyrene.......        0.0055             3.4     x              x                           
    Naphthalene...................        0.059              5.6     x              x                           
    Phenanthrene..................        0.059              5.6     x              x                           
    Pyrene........................        0.067              8.2     x              x                           
Dioxins and Furans:                                                                                             
    Tetrachlorodibenzo-p-dioxins..        0.000063           0.001   x                                          
    Pentachlorodibenzo-p-dioxins..        0.000063           0.001   x                                          
    Hexachlorodibenzo-p-dioxins...        0.000063           0.001   x                                          
    Tetrachlorodibenzofurans......        0.000063           0.001   x                                          
    Pentachlorodibenzofurans......        0.000035           0.001   x                                          
    Hexachlorodibenzofurans.......        0.000063           0.001   x                                          
Inorganics:                                                                                                     
    Arsenic.......................        1.4                5.0     x              x              x            
    Chromium (total)..............        2.77               0.86    x              x              x            
----------------------------------------------------------------------------------------------------------------
* Because Benzo(b)fluoranthene and Benzo(k)fluaranthane coelute on gas chromatography columns, this constituent 
  is regulated as a sum of the two compounds.                                                                   

D. Treatment Standards for Toxic Characteristic Metal Wastes

1. Rationale for Applying Universal Treatment Standards (UTS) to Toxic 
Characteristic Metal Wastes (D004-D011)
    In the Third Third LDR Rule (55 FR 22520), EPA established 
treatment standards for the metal wastes that were characteristic by 
the Extraction Procedure (EP) test. Since promulgation of the TC rule 
in September 1990, the Toxic Characteristic Leaching Procedure (TCLP) 
is used to determine whether a metal waste is characteristic. Wastes 
that are characteristic by the TCLP but not by the EP are considered 
newly identified wastes and are not currently subject to the land 
disposal restrictions. Today, EPA is proposing to apply treatment 
standards to all characteristic metal wastes. In addition, the Agency 
is proposing to change the treatment standard levels for characteristic 
metal wastes from those established in the Third Third rule at the 
characteristic levels to previously promulgated UTS levels for metal 
constituents. Furthermore, when promulgated, the characteristic metal 
wastes must be treated not only to meet today's proposed treatment 
standards, but also to meet treatment standards for any UHCs reasonably 
expected to be present in those wastes at the point of the wastes' 
generation. This approach is consistent with the promulgated 
requirements for other characteristic wastes (D012-D043) (see 59 FR 
47982 September 19, 1994).
    EPA promulgated the UTS for organic, metal, and cyanide 
constituents on September 19, 1994 (see 59 FR 47982). The UTS 
eliminated differences in concentration limits for the same constituent 
in order to provide a better assessment of treatability, to reduce 
confusion, and to ease compliance and enforcement. (The complete table 
of UTS is located at 40 CFR 268.48 and the levels have been 
incorporated in the treatment standard table at Sec. 268.40.) The UTS 
replaced the existing metal constituent treatment standards for all 
listed wastes, and constituted applicable levels for underlying 
hazardous metal constituents (metal UHCs) in ignitable, corrosive and 
TC organic wastes. As explained above, they did not apply to TC waste 
codes D004-D011, nor did they replace the treatment standards 
promulgated in the Third Third rule for EP metals.
    EPA performed a comprehensive reevaluation of the available 
treatment performance data from both listed and characteristic wastes 
for all metal constituents in the UTS table in order to 

[[Page 43683]]
determine whether the metal UTS levels are appropriate to transfer to 
TC metals. The Agency has determined that a transfer of UTS is 
appropriate based on treatment levels achieved for the characteristic 
wastes and the metal concentrations in untreated wastes used for UTS 
being more highly contaminated than the characteristic wastes. Some of 
the historic data on treatment of characteristic wastes simply reflects 
a design to remove the characteristic, not a true measure of the 
treatability by stabilization and HTMR (see ``BDAT Background Document 
for Toxicity Characteristics Metal Wastes D004-D011)'' in the RCRA 
docket). EPA is proposing that the metal UTS are the LDR treatment 
standards for characteristic metal wastes. This means, in effect, that 
most of the metal treatment standards are proposed to be changed, 
however, a few treatment standards are not. Tables at the end of this 
section provide the old level, the new level, and whether or not the 
treatment standard is proposed to be changed.
    The UTS for metal nonwastewaters can be achieved by high 
temperature metals recovery (HTMR) or stabilization. HTMR is a common 
technology for the extraction and recovery of metals from complex 
matrices. HTMR is based primarily on pyrometallurgical separation 
principles. HTMR has been demonstrated to be applicable to almost all 
metals in a relatively wide variety of matrices. This is primarily due 
to the thermodynamic and kinetic reactivity of these metals (and other 
inorganics present) at the high temperatures and oxidation states in 
the unit. Depending on the type of HTMR unit and the temperatures 
utilized, nonwastewater residues that would be classified as slags, are 
likely to be produced.
    Conventional stabilization technologies include cementious and 
pozzolanic stabilization with the potential addition of specialized 
reagents for the enhancement of structural stability, curing time, and/
or reduced leachability. The reduction in leachability of the hazardous 
metal constituents of the wastes is accomplished by the formation of a 
lattice structure (i.e., chemical bonds) that binds or entraps the 
metals in a solid matrix. Before addition of the stabilizing agents, 
the forms of the metals in the wastes need to identified. Often 
pretreatment involving chemical conversion of the metals in the wastes 
to a more favorable oxidation state or to a different metallic salt 
must be performed or the stabilization could be relatively ineffective 
or incomplete.
2. Proposed Revision of UTS for Beryllium
    In today's rule, EPA is proposing to change the UTS for beryllium 
to 0.04 mg/l TCLP. After UTS were promulgated, additional data on TC 
metals were submitted to the Agency. These grab sample data were from a 
HTMR facility and were comprised of 480 data points from their in-house 
metal treatment processes. These data were submitted as ``Confidential 
Business Information.'' While UTS nonwastewater limits for metals 
specify a grab sample, the data used to develop the standards included 
both grab and composite samples. These data demonstrated HTMR could not 
necessarily achieve the limits using grab samples. Out of the 40 data 
points for beryllium, five exhibited levels exceeding the UTS level of 
0.014 mg/l TCLP. A log-normal statistical analysis, based on QA/QC 
Methodology, was performed on these beryllium data points. Based on 
this analysis, the Agency is proposing to modify the beryllium UTS 
level to 0.04 mg/l TCLP. The Agency believes that this proposed level 
provides assurance that metal nonwastewater standards can comply with 
UTS using grab samples.
    The Agency also reevaluated the new cadmium data submitted. Based 
on a log-normal statistical analysis the cadmium data, the UTS level of 
0.19 mg/l TCLP is essentially at the 99th percentile. The Agency, 
therefore, does not see a need to modify this standard and is not 
proposing a change in the previously promulgated cadmium UTS level. 
However, due to the two data exceedances out of the 40 data point 
samples submitted, the Agency is soliciting further data.
    The issue of grab versus composite sampling has been raised as 
needing clarification. As previously promulgated, these metal treatment 
standards specify grab samples. If grab sampling creates 
inconsistencies in achieving UTS levels for a treatment process, the 
facility should evaluate its process and submit data to EPA in support 
of their treatment process (40 CFR 268.41 and 55 FR 22539 June 1, 
1990). The use of grab versus composite standards does not mean more 
frequent sampling is necessary. Grab samples normally reflect maximum 
process variability, and thus will reasonably characterize the range of 
treatment system performance. The sampling analysis for both wastewater 
and nonwastewater is composite and grab respectively (40 CFR 268.41 and 
268.43).
3. Treatment Standard for Previously Stabilized Mixed Radioactive and 
Characteristic Metal Wastes
    Some radioactive wastes which exhibit a hazardous characteristic 
for a metal have been stabilized to meet the existing LDR standards, 
but may not be land disposed until after Phase IV is finalized. Such 
circumstances could result in treated wastes not meeting the revised 
standards. For example, as part of the West Valley Demonstration 
Project, approximately 21,000 drums of mixed radioactive/formerly metal 
characteristic wastes have been stabilized to meet the current LDR 
treatment standards for metals.) The wastes at the West Valley site are 
being stored awaiting development of disposal capacity. Because of 
siting difficulties for radioactive wastes, it is expected to take more 
than three years to develop disposal capacity. There is a good 
possibility that when these treated wastes are disposed, the Phase IV 
final rule will be in effect and the metal portion will be subject to 
the more stringent Universal Treatment Standard levels. If this were 
the case, the wastes would require re-treatment to achieve UTS prior to 
disposal. Such a practice would present significant risks. Opening the 
drums and grinding the already treated mass of stabilized waste to re-
treat could expose workers, and possibly others, to unacceptable levels 
of metal containing dusts and radioactivity.
    The Agency believes the prior stabilization of such wastes achieves 
the statutory minimized threat standard, and to require re-treatment 
would not only minimize threat, but could increase it. Therefore, the 
Agency is proposing to allow characteristic metal mixed wastes, that 
have undergone stabilization prior to the effective date of the Phase 
IV final rule, to comply with the LDR metal standards that were in 
effect at the time the waste was stabilized. Mixed radioactive/
characteristic metal wastes that are stabilized after the effective 
date of Phase IV would be subject to the metal treatment standards in 
the Phase IV rule.

                                                                                                                

[[Page 43684]]
       Proposed Changes for TC Metals (Nonwastewater) (D004-D011)       
------------------------------------------------------------------------
                                           Old TC                       
                                            level     New UTS    N.C.=no
                TC metal                    (mg/l   level(mg/l   change 
                                            TCLP)      TCLP)            
------------------------------------------------------------------------
Arsenic (D004)..........................      5.0       5.0     N.C.    
Barium (D005)...........................    100         7.6             
Cadmium (D006)..........................      1.0        .19            
Chromium (Total) (D007).................      5.0        .86            
Lead (D008).............................      5.0        .37            
Mercury-retort residues (D009)..........      0.20       .20    N.C.    
Mercury--all others (D009)..............       .20       .025           
Selenium (D010).........................      1.0        .16            
Silver (D011)...........................      5.0        .30            
------------------------------------------------------------------------



        Proposed Changes for TC Metals (Wastewaters) (D004-D011)        
------------------------------------------------------------------------
                                            Old TC    New UTS           
                TC metal                  level(mg/  level(mg/   N.C.=no
                                           l TCLP)       l)      change 
------------------------------------------------------------------------
Arsenic (D004)..........................       5.0        1.4           
Barium (D005)...........................     100          1.2           
Cadmium (D006)..........................       1.0         .69          
Chromium (Total) (D007).................       5.0        2.77          
Lead (D008).............................       5.0         .69          
Mercury-retort residues (D009)..........        .20      NA             
Mercury--all others (D009)..............        .20        .15          
Selenium (D010).........................       1.0         .82          
Silver (D011)...........................       5.0         .43          
------------------------------------------------------------------------

VI. Mineral Processing Waste Issues

    EPA is planning revisions to the regulations pertaining to mineral 
processing wastes, including the definition of solid waste, the rules 
applying to mixtures of Bevill-exempt wastes and those which are not 
Bevill-exempt, application of land disposal to characteristic mineral 
processing wastes, and responses to various court remands. The Agency 
plans to address these issues in a supplemental proposal to today's 
rule.

VII. Environmental Justice

A. Applicability of Executive Order 12898

    EPA is committed to address environmental justice concerns and is 
assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities. In response to 
the Executive Order and to concerns voiced by many groups outside the 
Agency, EPA's Office of Solid Waste and Emergency Response formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17).

B. Potential Effects

    Today's proposed rule covers several wastes: wood preserving 
wastes, TC metals, and leaks/sludges/and emissions from surface 
impoundments. The rule involves not one site, but will possibly affect 
many facilities nationwide. Because of the locations of some of these 
facilities and surface impoundments, the potential exists for impacts 
to minority or low income communities.
    Today's rule is intended to reduce risks of hazardous and 
characteristic wastes as proposed, and to benefit all populations. As 
such, this rule is not expected to cause any disproportionate impacts 
to minority or low income communities versus affluent or non-minority 
communities.
    The Agency is soliciting comment and input from all stakeholders, 
including members of the environmental justice community and members of 
the regulated community. The Agency encourages all interested parties 
to provide comments or further information that might be necessary on 
the data, analysis, and findings contained in this section. The Agency 
is interested in receiving additional information and/or comment on the 
following:
     Information on facilities with surface impoundments that 
have evaluated potential ecological, human health (taking into account 
subsistence patterns and sensitive populations) and socioeconomic 
impacts to minority or low-income communities.
     Information on facilities with surface impoundments that 
have conducted human health analyses identifying multiple and 
cumulative exposures (populations at risk) from leaks, emissions, 
sludges.
     Information on releases (leaks, emissions) that have 
occurred in the community and their health and environmental effects; 
and possible effects of exposure to the chemicals in the community.
     Information on hazardous materials stored, used, and 
transported in the community.

VIII. Capacity Determinations

A. Introduction

    This section summarizes the results of the capacity analysis for 
the wastes covered by this proposal. For background information on data 
sources, methodology, and a summary of the capacity analyses for each 
group 

[[Page 43685]]
of wastes covered in this rule, see ``Background Document for Capacity 
Analysis for Land Disposal Restrictions, Phase IV--Issues Associated 
with Clean Water Act Treatment Equivalency, and Treatment Standards for 
Wood Preserving Wastes and Toxicity Characteristic Metal Wastes.
    In general, EPA's capacity analysis focuses on the amount of waste 
to be restricted from land disposal that is currently managed in land-
based units and that will require alternative treatment as a result of 
the LDRs. The quantity of wastes that are not managed in land-based 
units (e.g., wastewaters managed only in RCRA exempt tanks, with direct 
discharge to a Publicly Owned Treatment Works (POTW)) is not included 
in the quantities requiring alternative treatment as a result of the 
LDRs. Also, wastes that do not require alternative treatment (e.g., 
those that are currently treated using an appropriate treatment 
technology) are not included in these quantity estimates.
    EPA's decisions on whether to grant a national capacity variance 
are based on the availability of alternative treatment or recovery 
technologies. Consequently, the methodology focuses on deriving 
estimates of the quantities of waste that will require either 
commercial treatment or the construction of new on-site treatment as a 
result of the LDRs. Quantities of waste that will be treated adequately 
either on site in existing systems or off site by facilities owned by 
the same company as the generator (i.e., captive facilities) are 
omitted from the required capacity estimates.\4\

    \4\ Traditionally, capacity analyses have focused on the demand 
for alternative capacity once existing on-site capacity and captive 
off-site capacity have been accounted for. However, for some of the 
wastes at issue in this rule it may not be feasible to ship wastes 
off site to a commercial facility. In particular, facilities with 
large volumes of wastewaters may not readily be able to transport 
their waste to treatment facilities. Alternative treatment for these 
wastes may need to be constructed on site.
---------------------------------------------------------------------------

B. Capacity Analysis Results Summary

1. Available Capacity
    EPA estimates that there are 115,900 tons per year of commercial 
sludge/solid combustion capacity and 1,145,000 tons per year of 
commercial liquid combustion capacity available to meet the treatment 
requirements of Phase IV wastes. EPA estimates that there are over one 
million tons of available stabilization capacity. In addition, EPA 
estimates that there are approximately 47 million tons per year of 
available wastewater treatment capacity.
    EPA believes that some facilities may face logistical problems in 
complying with the sludges, leaks, and air emissions standards. For 
example, if the standards require alternative management of 
characteristic wastes, modifications (e.g., waste segregation, plant 
replumbing, the installation of a new waste treatment system or 
pollution prevention mechanisms) might require significant time. If EPA 
determines that on-site treatment capacity will not be available when 
the final rule is promulgated, and that there would be no feasible way 
for generators to transport their wastes to commercial treatment 
facilities, EPA may grant a capacity variance for up to two years. EPA 
requests comments on the types of modifications that might be necessary 
at facilities that need to manage their Phase IV wastes on-site, and 
the time required to make such modifications.
2. Surface Impoundment Sludges, Leaks, and Air Emissions
    EPA is considering several regulatory options for surface 
impoundment sludges, leaks, and air emissions. Details of the 
methodology and estimates of affected facilities and waste quantities 
are provided in the capacity analysis technical background document.
    EPA estimates that for the regulatory option that relies on Phase 
III rulemaking and other EPA regulatory activities (e.g., CAA) to 
achieve RCRA-equivalent levels of control (Option 1), no facilities or 
quantities will be affected by the Phase IV rule.
    The other regulatory options apply some additional controls beyond 
treatment standards for surface impoundment wastewaters regulated under 
the Phase III rule. EPA analyzed these other regulatory options by 
focusing on the 15 industry sectors identified in the Phase III LDR 
capacity analysis as the industries most likely to be affected by the 
Phase IV LDR rule.
    EPA estimates that for Option 2, the wastewater affected by the air 
emissions standard for surface impoundments in CWA or CWA-equivalent 
treatment systems will be about 0.4 billion to 5.8 billion tons of 
decharacterized wastewater per year. About 0.3 billion to 3.7 billion 
tons of decharacterized wastewater could be affected by the leak 
standard. The facilities generating affected wastewater may need to 
conduct ground water monitoring, install liners, or conduct ground 
water remediation. EPA estimates that 0.1 million to 3.5 million tons 
per year of sludges might be affected by the sludges component of the 
Phase IV LDR rule. For Option 3, EPA estimates that 2.4 billion to 16 
billion tons of decharacterized wastewater will be affected each year 
by the air emissions, leaks, and sludges standards.
    For Options 2 and 3, EPA believes that some affected facilities 
need time to reconfigure their waste management systems or to build 
treatment capacity for these wastes, since the volumes of waste 
affected are large enough to make off-site treatment impractical for 
many facilities. EPA is proposing to grant a two-year national capacity 
variance for surface impoundment sludges, leaks, and air emissions 
under the regulatory options that require additional management of 
these wastes beyond the Phase III standards (i.e., Options 2 and 3). 
EPA requests comments on this proposal and data on the number of 
affected facilities and the quantities of affected wastes.
3. Newly Identified Characteristic Metal Wastes
    EPA estimates 41,250 tons per year of newly identified D008 (lead) 
nonwastewaters will require stabilization as a result of the TCLP test. 
EPA believes that any additional quantities of other newly identified 
TC metal wastes are very small. Since there are over 1 million tons of 
stabilization capacity available to treat these wastes, EPA is 
proposing to not grant a variance to TC metal wastes.
4. Wood Preserving Wastes
    EPA estimates that very small quantities of wood preserving 
wastewaters (approximately 340 tons of organic wastewater and 40 tons 
of inorganic wastewater per year) will require alternative treatment 
capacity in order to comply with the proposed LDRs. EPA estimates that 
approximately 28,000 per year tons of nonwastewaters (24,860 tons of 
organic nonwastewaters and 2,880 tons of inorganic nonwastewaters) will 
require alternative treatment as a result of the proposed LDRs.
    EPA believes that incineration should be able to meet the proposed 
treatment standards for organic wastewaters and nonwastewaters, 
stabilization should be able to meet the proposed treatment standards 
for inorganic nonwastewaters, and chemical precipitation should be able 
to meet the treatment standards for the inorganic wastewaters. There is 
sufficient liquid and sludge/solid combustion capacity for both the 
organic wood preserving wastewaters and nonwastewaters. In addition, 
EPA believes that there is sufficient chemical precipitation capacity 
for the inorganic wastewaters. Finally, there are over 1 million tons 
of stabilization capacity for the inorganic nonwastewaters. 

[[Page 43686]]
Therefore EPA is proposing not to grant a variance for the newly listed 
wood preserving wastes. Although many commenters to the ANPRM (56 FR 
55160) expressed concern that treatment facilities would not accept 
F032 waste if the treatment standards include a dioxin concentration, 
EPA believes that its Combustion Strategy will alleviate this problem.
    Given the potentially large quantity of soil and debris 
contaminated with newly listed wood preserving wastes and the lack of 
adequate treatment capacity to meet this demand, EPA is proposing to 
grant a two-year capacity variance to soil and debris contaminated with 
newly listed wood preserving wastes. The Agency requests comments on 
this proposal, including data on the quantities of soil and debris 
contaminated with wood preserving wastes that are generated.
5. Mixed Radioactive Wastes
    Despite the uncertainty about quantities of mixed radioactive 
wastes containing wastes that will require treatment as a result of 
today's proposed rule, any new commercial capacity that becomes 
available will be needed for mixed radioactive wastes that were 
regulated in previous LDR rulemakings and whose variances have already 
expired. Thus, EPA has determined that sufficient alternative treatment 
capacity is not available, and is proposing to grant a two-year 
national capacity variance for mixed RCRA/radioactive wastewaters and 
nonwastewaters contaminated with wastes whose standards are being 
proposed today.
6. Phase IV Wastes Injected Into Class I Wells
    EPA estimates that approximately 11 million tons of newly 
identified and listed wastes are being injected in Class I injection 
wells. These injected volumes vary in amount by facility and are all 
disposed on site. None of these facilities transport their waste off 
site or currently have the necessary capacity to treat their waste on 
site by acceptable means. Additionally, for those facilities affected 
by the proposed prohibitions which are unable to make a successful no 
migration demonstration and/or are unable to meet the requirements of 
other proposed options, constructing a treatment facility on site would 
require a significant amount of time. Therefore the Agency is proposing 
to grant a two-year national capacity variance for these wastes.
    EPA requests comments on the above capacity determinations. In 
particular, EPA requests data on the generation, characteristics, and 
management of the wastes discussed above. In addition, EPA requests 
data on the availability of treatment capacity for any of these wastes.
    Table 1 lists each category of RCRA wastes for which EPA is today 
proposing LDR standards. For each category, this table indicates 
whether EPA is proposing to grant a national capacity variance for 
land-disposed wastes.\5\

    \5\ The term ``land-disposed wastes'' denotes wastes that are 
managed in land-based units at any time during the waste's storage, 
treatment, or disposal.

       Table 1.--Variances for Newly Listed and Identified Wastes       
      [``Yes'' indicates EPA is proposing to grant a variance] \1\      
------------------------------------------------------------------------
                                                    Deep well-injected  
   Waste description     Surface-disposed wastes          wastes        
------------------------------------------------------------------------
Phase IV Sludges \2\...  Yes....................  N/A.                  
Phase IV Leaks \2\.....  Yes....................  N/A.                  
Phase IV Air Emissions   Yes....................  N/A.                  
 \2\.                                                                   
Newly Identified TC      No.....................  Yes.                  
 Metals (D004-D011).                                                    
Newly Listed Wood        No.....................  Yes.                  
 Preserving Wastes                                                      
 (F032, F034, F035).                                                    
Soil and Debris          Yes....................  N/A.                  
 Contaminated with                                                      
 Newly Listed Wood                                                      
 Preserving Wastes.                                                     
Phase IV Mixed           Yes....................  Yes.                  
 Radioactive Wastes.                                                    
------------------------------------------------------------------------
\1\ Treatment capacity variances are for two years.                     
\2\ The variance determinations listed here apply only to wastes derived
  from surface impoundments in CWA or CWA-equivalent systems that manage
  decharacterized ICRT wastes.                                          

IX. 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 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 unauthorized 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.
    Today's rule is being proposed pursuant to sections 3004(d) through 
(k), and 3004(m), of RCRA (42 U.S.C. 6924(d) through (k), and 6924(m)). 
The rule would be added to Table 1 in 40 CFR 271.1(j), which identifies 
the Federal program requirements that are promulgated pursuant to HSWA. 
States may apply for 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. Abbreviated Authorization Procedures for Specified Portions of the 
Land Disposal Restrictions Phase II, III, and IV Rules

    Under the current authorization structure, all revisions to 
authorized state hazardous waste programs, no matter how minor the 
change, are reviewed under the same procedures and standard of review. 
While these procedures may be appropriate for significant changes to 
the RCRA program, EPA believes they are too detailed for minor changes. 
EPA is aware that this situation may result in unnecessary costs and 
delays in authorizing States and add costs for the Agency to process 
these revisions. Because of these problems, EPA believes that the 
procedures for authorization should reflect the different scope of new 
rules. For example, a State should be able to gain authorization for 
minor revisions to a basic aspect of the program (i.e., the Land 
Disposal Restrictions) in an expedited fashion if that State is 
authorized for that major part of the program. Therefore, EPA is today 
proposing to create an expedited authorization procedure that would be 
applied to certain minor revisions to the 

[[Page 43687]]
LDR program in the Phase II, III, and IV rules.
    Under this proposed approach, EPA's review and approval of a 
State's authorization application would be expedited. A State would be 
required to certify that provisions it has adopted provide authority 
that is equivalent and no less stringent than the Federal provisions. 
Within 60 days of receiving a complete application, EPA would provide 
notice to the public approving a complete State application. Then, the 
public would have an opportunity for comment, as provided by the 
existing regulations governing authorization revisions. A detailed 
explanation of today's proposed procedures is provided below.
    Today's Phase IV proposal contains two very distinct types of 
changes to the Land Disposal Restrictions program. The abbreviated 
authorization process that EPA is proposing today would apply to minor 
changes to the existing program. Specifically, the new process would 
apply to the regulation of newly identified wastes under BDAT, and to 
several clarifications and improvements to the existing LDR program. 
These provisions involve minor and routine changes to the Land Disposal 
Restrictions (LDR) regulations. The other part of today's Phase IV 
proposal would potentially expand the scope of EPA's program under RCRA 
in significant ways. Specifically, EPA is proposing options that would 
address the management of decharacterized wastes in surface 
impoundments that are not subject to RCRA Subtitle C. Depending on the 
option that the Agency chooses, the universe of facilities covered by 
Subtitle C could significantly increase. The regulatory approach that 
EPA may use for these surface impoundments may also differ from 
previous regulatory schemes. EPA would use the existing authorization 
procedures for this part of the Phase IV proposal, except for option 
one in the management of decharacterized wastes. This option would use 
existing non-RCRA regulatory authorities to address these units, and 
therefore RCRA regulatory amendments would not be required. Thus, a 
State's authorization would not need to be revised.
    EPA is also proposing to apply the same abbreviated authorization 
procedures to the more minor changes in the March 2, 1995, proposed 
Phase III LDR rule (see 60 FR 11702) that are similar to those in 
today's Phase IV proposal, as they also are routine changes to the LDR 
program. EPA also believes that the revised numerical values 
represented by the Universal Treatment Standards (UTS) in Secs. 268.40 
and 268.48 that were promulgated in the Phase II LDR rule (see 59 FR 
47982, September 1, 1994) are changes appropriate for the abbreviated 
process.
Basis/Rationale for Streamlined Authorization
    EPA believes that an abbreviated procedure can and should be used 
to authorize States for sections of the Phase II, III, and Phase IV LDR 
rules (discussed below) for several reasons. First, the applicable 
portions of these rules are relatively minor in nature. Over time, 
changes such as these have become a routine part of the LDR program. 
Second, the States that would use this procedure would already be 
authorized for the Third Third LDR rule. During the authorization 
process for the LDR rules up to and including the Third Third rule, EPA 
would have already determined whether the State has an LDR program that 
is consistent with the Federal program, and also whether there is 
adequate enforcement. Third, since the State has been implementing the 
LDR program, EPA will be familiar with the State's implementation 
performance. Last, EPA believes that implementation of the LDR program 
will be enhanced by expedited authorization of these provisions, since 
authorization will remove any confusion about who is the implementing 
Agency for specific requirements.
    Section 3006(b) of RCRA establishes the legal standard for State 
program approval. EPA believes that for the routine changes in the 
Phase II, III, and IV LDR rules, the certification submitted to EPA by 
the State provides an adequate basis for EPA to propose approval of the 
program revision, as this certification simply updates EPA's previous 
findings regarding the LDR program. EPA also believes that by virtue of 
a State having obtained authorization for the LDR program, the State 
has demonstrated its capability both in the administration and 
implementation of the program, and in its understanding of the 
requisite legal requirements. States that are authorized for 
significant portions of the LDR program are familiar with the type of 
rule changes needed, have adopted all or most of the underlying LDR 
program, and have experience in implementing and enforcing the rules. 
Thus, EPA will give great weight to the statements and legal 
certification submitted by the State. Accordingly, the Agency believes 
that a second detailed evaluation by EPA is not warranted under such 
circumstances.
Proposed Streamlined Authorization Procedures
    Today's notice proposes to amend 40 CFR Part 271 to create a 
streamlined authorization procedure in new section 271.28. EPA is 
proposing today to apply this procedure only to the specific parts of 
the Phase II, III, and IV rules that are identified in paragraph (a) of 
section 271.28. EPA is also soliciting comment, however, on whether 
this approach should be applied to other aspects of the land disposal 
program.
    The parts of the Phase III proposal to which today's streamlined 
authorization proposal would be applicable are: (1) Treatment standards 
for newly listed wastes, (2) improvements to the existing land disposal 
restrictions program, (3) revisions and corrections to the treatment 
standards in Secs. 268.40 and 268.48, and (4) the prohibition of 
hazardous waste as fill material. The preamble discussion for these 
parts of the Phase III proposal is in Sections VI, VII, and VIII of the 
March 2, 1995, notice (see 60 FR 11702). The applicable parts of 
today's proposed Phase IV rule are: (1) Treatment standards for newly 
listed and identified wastes and (2) improvements to the land disposal 
restrictions program. In the final Phase II rule, the applicable parts 
are the treatment standards in Secs. 268.40 and 268.48.
    Note that EPA is not proposing the use of this streamlined 
procedure for the authorization of those sections of the Phase III rule 
that address end-of-pipe treatment standards for (1) Clean Water Act 
and equivalent wastewater treatment systems, and (2) Class I non-
hazardous injection wells. The streamlined procedures would also not be 
used for the authorization of the option the Agency chooses in the 
Phase IV final rule to address the management of leaks, sludges, and 
air emissions of toxic constituents from decharacterized wastes. As 
explained earlier, EPA has tentatively concluded that these 
requirements would involve significant expansions of the program 
deserving more detailed review.
    Paragraph (a) of proposed Sec. 271.28 also specifies that the State 
must already be authorized for the Third Third LDR rule (see 55 FR 
22520, June 1, 1990) to be able to use the proposed streamlined 
procedure to gain authorization for the Phase II, III, and IV rules. 
EPA is proposing this approach because the structure of the LDR program 
is essentially complete with the Third Third rule, and few changes have 
been made since this rule, EPA believes that it is appropriate to 
require LDR program authorization up to and including this 

[[Page 43688]]
rule as a condition for using the proposed streamlined procedures. As 
of May 31, 1995, 19 States have been authorized to implement the Third 
Third LDR rule. At the same time, EPA recognizes that this proposed 
approach may unnecessarily limit the benefits of streamlined 
authorization procedures. Therefore, EPA solicits comment on (1) 
whether the use of the streamlined procedure should be expanded to 
other Land Disposal Restrictions rules, and (2) whether a State should 
only be required to be authorized for the Solvents and Dioxins rule (51 
FR 40572, November 7, 1986) to use this procedure, since this rule put 
in place the basic structure of the LDR program.
    Under proposed section 271.28(b), a State would submit an 
abbreviated application (primarily consisting of a certification from 
the State) that the laws of the State provide authorities that are 
equivalent to, and no less stringent than the Federal authorities. The 
certification would also include appropriate citations to the specific 
statutes, administrative regulations and where appropriate, judicial 
decisions. The cited State statutes and regulations would also have to 
be fully effective at the time the certification is signed. As 
discussed above, in the case of routine or minor program changes, EPA 
believes that this certification will provide an adequate basis for 
EPA's authorization of a program revision under RCRA section 3006 
(absent contrary information in the possession of EPA, or supplied in 
comments during the public comment period).
    Under proposed section 271.28(c), within 30 days of receipt of the 
application EPA would be required to notify the State if EPA determines 
that the application, including the certification, is not complete. 
Accordingly, when the application is received, EPA would conduct a 
completeness check to determine whether the application contains all 
the required components. EPA will address the extent of this 
completeness check in future authorization guidance. However, EPA does 
not intend that this completeness check involve a detailed and 
substantive review. EPA specifically requests comment on what 
activities this check should be limited to. The reasons why EPA could 
determine that an application is not complete are specified in section 
271.28(d). To minimize any errors such as these, EPA continues to 
encourage States to submit draft rules to EPA for review. If EPA does 
find that an application is incomplete or contains errors, EPA will 
summarize the deficiencies in the completeness notice sent to the State 
under Sec. 271.28(c). After the deficiencies are corrected, the State 
would resubmit the application to EPA.
    When EPA determines that a State's application is complete, EPA 
would issue an immediate final rule under section 271.28(e) within 60 
days of receiving the application under paragraph (c). Thus, if a 
State's initial application is complete, this notice would be published 
no later than 30 days after EPA finishes its completeness check. This 
immediate final rule is similar to the notice used in Sec. 271.21 for 
other revision authorization decisions. Thus, the public would have the 
same ability to comment as for other authorization decisions. The 
notice would provide for a 30-day public comment period, and would go 
into effect 60 days after publication unless a significant adverse 
comment is received by EPA. An example of a significant adverse comment 
would be that the State did not have the necessary authority to 
implement the new requirements.
    EPA solicits comments on this proposed approach, as well as 
suggestions of possible modifications or alternative approaches. For 
example, is the step of a 30-day completeness review necessary? Are the 
criteria in Sec. 271.28(d) for completeness appropriate? Are there 
further efficiencies that could be made, for example, in the approval 
process for program changes that are purely technical? Does the 
proposed process provide adequate assurance that the State program will 
be consistent with and no less stringent than the Federal program?
    Although EPA has proposed to use this streamlined authorization 
procedure only for portions of the Phase II, III, and IV LDR rules, EPA 
is considering this procedure for other aspects of the Land Disposal 
Restrictions and other rules in the future. Future proposals will 
further discuss EPA's plans for improving and streamlining the state 
authorization program. EPA is planning to propose to use a similar 
authorization approach for the upcoming Hazardous Waste Identification 
Rule (HWIR) for contaminated media. This different procedure would 
provide for additional EPA review of the State's authorization 
application. EPA expects that the procedure proposed today would 
constitute the most expedited authorization procedure available to 
States.

C. Effect on State Authorization

    Because today's proposed Phase IV LDR rule is being proposed under 
HSWA authority, when finalized, those sections of today's proposal that 
expand the coverage of the LDR program (e.g., to newly identified 
wastes) would be implemented by EPA in authorized States until their 
programs are modified to adopt these rules and the modification is 
approved by EPA. However, some of the regulatory amendments proposed 
today are less stringent than, or reduce the scope of, the existing 
Federal requirements. Others are neither more or less stringent.
    States that are authorized for provisions that would be amended in 
a less stringent manner by today's proposal would not be required to 
modify their program to adopt the revised provisions. Those provisions 
are described in Section VI of today's preamble, entitled Improvements 
to Land Disposal Restrictions Program. The regulatory provisions that 
are considered to be less stringent are in sections: 268.4, 268.5, 
268.7, 268.30-37, waste code F039 in the table titled ``Treatment 
Standards for Hazardous Wastes'' in Sec. 268.40, and the use of 
polymerization as a treatment method for certain D001 wastes in Table 1 
of Sec. 268.42.
    Other provisions are neither more or less stringent. EPA clarified 
in a December 19, 1994, memorandum (which is in the docket for today's 
proposal) that EPA would not implement the Universal Treatment 
Standards (promulgated under HSWA authority in the Phase II LDR rule) 
separately for those States for which the State has received LDR 
authorization. EPA views any changes from the existing limits to be 
neither more or less stringent since the technology basis of the 
standards has not changed. Accordingly, EPA will not implement the 
amendments to the UTS that are proposed in the LDR Phase III and IV 
proposals.
    States should note that EPA is also proposing to include newly 
identified wastes under the LDR program. Because these more stringent 
HSWA provisions expand the scope of LDR coverage, EPA would generally 
implement them in authorized States on the effective date of today's 
rule. EPA's authorization guidance for the final rule will identify in 
more detail which provisions in these sections will be implemented. 
However, EPA strongly encourages States that are authorized for the 
Land Disposal Restrictions program to make these proposed improvements 
to their regulations because of the clarity they will give to the 
regulated community and to the Agency. 

[[Page 43689]]

    Because today's rule is proposed pursuant to HSWA, a State 
submitting a program modification may apply to receive 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 final authorization are described in 40 CFR 271.21. 
It should be noted that all HSWA interim authorizations will expire 
January 1, 2003. (See Sec. 271.24(c) and 57 FR 60132, December 18, 
1992.)
    Section 271.21(e)(2) requires that States with final authorization 
must modify their programs to reflect Federal program changes and to 
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). This deadline can be 
extended in certain cases (see section 271.21(e)(3)). 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 proposed rule. These State regulations have 
not been assessed against the Federal regulations being proposed 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 implementing the Federal 
program, EPA will work with States under agreements to minimize 
duplication of efforts. In most cases, EPA expects that it 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.

X. 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 proposed rule to 
determine if it is a significant regulation as defined by the Executive 
Order. The analysis considered compliance cost and economic impacts for 
ensuring adequate control of underlying hazardous constituents in air 
emissions, leaks, and sludges produced in surface impoundments used to 
treat decharacterized ICRT wastewaters. Also covered under this rule 
are three wood preserving wastes (F032, F034, and F035) and TC metals 
(D004-D011). The analysis considered compliance cost and economic 
impacts for both characteristic wastes and newly listed wastes affected 
by this rule. The Agency would like to have better information 
regarding how many facilities and waste management units are 
potentially affected, waste volumes, constituents, concentrations, how 
often and under what circumstances additional treatment is required, 
and treatment costs.
    Detailed discussions of the methodology used for estimating the 
costs, economic impacts and the benefits attributable to today's 
proposed rule, followed by a presentation of the cost, economic impact 
and benefit results may be found in the background document, 
``Regulatory Impact Analysis of the Proposed Phase IV Land Disposal 
Restrictions Rule,'' which is in the docket for today's proposed rule.
1. Methodology Section
    Three regulatory options were considered to establish ``RCRA 
equivalency'' for decharacterized ICRT wastes. In other words, wastes 
decharacterized by dilution may be placed in a nonhazardous surface 
impoundment only if the toxic constituents are treated to the same 
extent that they would be under the treatment standards mandated by 
RCRA section 3004(m)(1). The analysis of these regulatory options 
involved characterizing the affected universe of facilities in terms of 
current management practices, waste volumes, and constituent 
concentrations in wastewater (i.e., characterizing baseline 
conditions).
    Agency estimated the volumes of waste affected by today's rule to 
determine the national level incremental costs (for both the baseline 
and post-regulatory scenarios), economic impacts (defined as the 
difference between the industrial activity under post-regulatory 
conditions and the industrial activity in the absence of regulation), 
and benefits (including estimation of pollutant loadings reductions, 
estimation of reductions in exceedances of health-based levels, and 
qualitative description of the potential benefits.) The procedure for 
estimating the volumes of decharacterized ICRT wastes and newly listed 
wood preserving wastes affected by today's proposed rule is detailed in 
the background document ``Regulatory Impact Analysis of the Proposed 
Phase IV Land Disposal Restrictions Rule,'' which was placed in the 
docket for today's proposed rule.
2. Results
    a. Volume results. The Agency has estimated the volumes of 
decharacterized ICRT wastes potentially affected by today's proposed 
rule in the background document ``Regulatory Impact Analysis of the 
Proposed Phase IV Land Disposal Restrictions Rule,'' which was placed 
in the docket for today's proposed rule.
    The Agency requests comment on waste volumes affected by the 
proposed Phase IV LDR rule.
    b. Cost results. The Agency has prepared a cost and impacts 
analysis for the options previously described in this preamble. Under 
Option 1, the Agency proposes to defer to existing regulations, and as 
a result,  expects minimal impacts to occur. The Agency has estimated 
that roughly 300 facilities (with approximately 800 surface 
impoundments) under Option 2 and roughly 850 facilities (with 
approximately 2,000 surface impoundments) under Option 3 may manage 
decharacterized wastewaters containing constituents exceeding UTS. 

[[Page 43690]]
The Agency estimates that total annual compliance costs for facilities 
under Option 2 range from $10 to $65 million. Total annual compliance 
costs for facilities under Option 3 are estimated to be in the range of 
$200 to $300 million. The Agency requests comment and data regarding 
how often additional treatment may be required.
    The Agency has estimated that minimal impacts will occur as the 
result of setting treatment standards for TC metals.
    c. Economic impact results. The Agency has estimated the economic 
impacts of today's proposed rule to be small. Results of the analysis 
were included in the docket for today's proposed rule. The Agency 
requests comment on anticipated economic impacts resulting from the 
proposed Phase IV LDR rule.
    d. Benefit estimate results. The Agency has estimated the benefits 
associated with today's proposed rule to be small. Screening risk 
results for air emissions suggest that 20 to 25 percent of samples (306 
to 349 of 1,562 facilities for which data are available) exceed the 100 
parts per million by weight (ppmw) control limit set by the Subpart CC 
rule.
    Central tendency screening risk results for leaks to groundwater 
indicate that samples from the pharmaceutical and OCPSF industries have 
potential individual lifetime cancer risk exceedances of 10-\5\ at 
the raw wastewater and biological pond influent sampling points. In the 
pharmaceutical industry, methylene chloride and acrylonitrile are the 
constituents of concern; in the OCPSF industries, acrylonitrile is the 
constituent of concern. Point of generation data indicate the potential 
for risks from leaks, however, surface impoundment data are not 
available for all industries.
    Central tendency screening risk results for sludges from the OCPSF 
industry indicate that two samples present individual lifetime cancer 
risk in excess of 10-\5\, where acrylonitrile is the constituent 
of concern. The Agency requests comment on anticipated benefits 
resulting from the proposed Phase IV LDR rule.
B. Regulatory Flexibility Analysis
    Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et 
seq., when an agency publishes 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. See RCRA sections 3004 (d), (e), and (g)(5) which apply 
uniformly to all hazardous wastes. 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 proposed rule, for both surface disposal of wastes 
and underground injection control, the Agency considered two factors. 
First, EPA is not aware of any data on potentially affected small 
entities. Second, due to the statutory requirements of the RCRA LDR 
program, no legal avenues exist for the Agency to provide relief from 
the LDRs 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 address the land disposal of 
the hazardous wastes covered in today's proposed rule without regard to 
the size of the entity being regulated.

C. Paperwork Reduction Act

    The information collection requirements in today's proposed rule 
have been submitted for approval to the Office of Management and Budget 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Request (ICR) document was prepared by EPA and a copy may 
be obtained from Sandy Farmer (EPA ICR #1442.10), Environmental 
Protection Agency, Regulatory Information Division, 401 M. Street, S.W. 
(mail code 2136), Washington, D.C. 20460, or by calling (202) 260-2740. 
Only incremental burdens are discussed in the ICR. This burden will 
eventually be merged with the LDR program ICR.
    The overall reporting and recordkeeping burden is estimated to be 
approximately 66,000 hours. The average recordkeeping burden per 
respondent is approximately 3 hours. The public reporting burden for 
this collection is estimated to average 16 hours per respondent. This 
includes time for reviewing instructions, gathering and compiling data, 
maintaining the data, and preparing and submitting data.
    The public should send comments regarding the burden estimate, or 
any other aspect of this collection of information (please refer to EPA 
ICR# 1442.10 and OMB# 2050-0085) including suggestions for reducing 
burden to: Sandy Farmer (EPA ICR 1442.10), Environmental Protection 
Agency, Regulatory Information Division, 401 M. Street, S.W. (mail code 
2136), Washington, D.C. 20460; and to Jonathan Gledhill (OMB 2050-
0085), Office of Management and Budget, Office of Information and 
Regulatory Affairs, Washington, D.C. 20460.

XI. Unfunded Mandates Reform Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a statement to 
accompany any rule where the estimated costs to State, local, or tribal 
governments in the aggregate, or to the private sector, will be $100 
million or more in any one year. Under Section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objective of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly impacted by the rule.
    EPA has completed an analysis of the costs and benefits from the 
proposed Phase IV LDR rule and has determined that this rule does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local or tribal governments in the 
aggregate. As stated above, the private sector may incur costs 
exceeding $100 million per year depending upon the option chosen in the 
final rulemaking. EPA has fulfilled the requirement for analysis under 
the Unfunded Mandates Reform Act, and results of this analysis have 
been included in the background document ``Regulatory Impact Analysis 
of the Proposed Phase IV Land Disposal Restrictions Rule,'' which was 
placed in the docket for today's proposed rule.

List of Subjects

40 CFR Part 148

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

[[Page 43691]]


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: August 11, 1995. `
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations as proposed to be amended at 60 FR 11702 
(March 2, 1995) is further proposed to be 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 148.18 is amended by redesignating paragraphs (a), (b), 
and (c), as paragraphs (b), (c), and (d), and by adding paragraph (a) 
to read as follows:


Sec. 148.18  Waste specific prohibitions--Newly Listed and Identified 
Wastes.

    (a) Effective August 22, 1997, the wastes specified in 40 CFR 261 
as EPA Hazardous waste numbers F032, F034, and F035, D004--D011 (as 
measured by the Toxicity Characteristic Leaching Procedure), and mixed 
D004-D011 TC/radioactive wastes, are prohibited from underground 
injection.
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

    3. 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

    4. Section 268.1 is amended by revising paragraph (e)(4)(ii) to 
read as follows:


Sec. 268.1  Purpose, scope and applicability.

* * * * *
    (e) * * *
    (4) * * *
    (ii) Characteristic wastes which are injected into Class I 
nonhazardous waste wells or placed in a Clean Water Act (CWA) or CWA-
equivalent wastewater treatment surface impoundment, whose combined 
volume is less than one per cent of the total flow at the wellhead, or 
at the surface impoundment influent, on an annualized basis; and for 
which any underlying hazardous constituents in the characteristic 
wastes are present, at the point of generation, at levels less than ten 
times the treatment standards found at Sec. 268.48.
* * * * *
    5. Section 268.4 is amended by revising paragraphs (a)(2)(iv), and 
(a)(4) introductory text to read as follows:
* * * * *


Sec. 268.4  Treatment surface impoundment exemption.

    (a) * * *
    (2) * * *
    (iv) Recordkeeping: Sampling and testing and recordkeeping 
provisions of Secs. 264.13 and 265.13 of this chapter apply.
* * * * *
    (4) The owner or operator submits to the Regional Administrator a 
written certification that the requirements of Sec. 268.4(a)(3) have 
been met. The following certification is required:
* * * * *
    6. Section 268.5 is amended by revising paragraph (e) to read as 
follows:


Sec. 268.5  Procedures for case-by-case extensions to an effective 
date.

* * * * *
    (e) On the basis of the information referred to in paragraph (a) of 
this section, after notice and opportunity for comment, and after 
consultation with appropriate State agencies in all affected States, 
the Administrator may grant an extension of up to one year from the 
effective date. The Administrator may grant additional time, up to one 
additional year, if requested in the application for the original 
extension of the effective date, or if requested at a later date, so 
long as the demonstration can be made that additional time beyond one 
year is necessary. In no event will an extension extend beyond 24 
months from the applicable effective date specified in Subpart C of 
Part 268. The length of any extension authorized will be determined by 
the Administrator based on the time required to construct or obtain the 
type of capacity needed by the applicant as described in the completion 
schedule discussed in paragraph (a)(5) of this section. The 
Administrator will give public notice of the intent to approve or deny 
a petition and provide an opportunity for public comment. The final 
decision will be published in the Federal Register.
* * * * *
    7. Section 268.7 is amended by removing paragraph (b)(2) and 
redesignating paragraph (b)(3) as (b)(2), (b)(4) as (b)(3), (b)(5) as 
(b)(4), (b)(6) as (b)(5) and (b)(7) as (b)(6; by revising the heading, 
paragraph (a), the introductory text of paragraph (b), (b)(1), (b)(2), 
(b)(3), (b)(4) introductory text, (b)(4)(i) introductory text, 
(b)(4)(ii) introductory text, (b)(4)(iii) introductory text, (c)(1), 
and (c)(2) to read as follows:


Sec. 268.7  Testing, tracking, and recordkeeping requirements for 
generators, treaters, and disposal facilities.

    (a) Requirements for generators:
    (1) Determine if the waste has to be treated before being land 
disposed, as follows: A generator of a hazardous waste must determine 
if the waste has to be treated before it can be land disposed. This is 
done by determining if the hazardous waste meets the treatment 
standards in Sec. 268.40 or Sec. 268.45. This determination can be made 
in either of two ways: testing the waste or using knowledge of the 
waste. If the generator tests the waste, testing would normally 
determine the total concentration of hazardous constituents, or the 
concentration of hazardous constituents in an extract of the waste 
obtained using test method 1311 in ``Test Methods for Evaluating Solid 
Waste, Physical/Chemical Methods,'' EPA Publication SW-846, as 
referenced in Sec. 260.11 of this chapter, depending on whether the 
treatment standard for the waste is expressed as a total concentration 
or concentration of hazardous constituent in the waste's extract. In 
addition, some hazardous wastes must be treated by particular treatment 
methods before they can be land disposed. These treatment standards are 
also found in Sec. 268.40, and are described in detail in Sec. 268.42, 
Table 1. These wastes do not need to be tested. If a generator 
determines they are managing a waste that displays a hazardous 
characteristic of ignitability, corrosivity, reactivity, or toxicity, 
they must comply with the special requirements of Sec. 268.9 of this 
part in addition to any applicable requirements in this section.
    (2) If the waste does not meet the treatment standard: With each 
shipment of waste, the generator must notify the treatment or storage 
facility in writing. The notice must include the information in column 
``268.7(a)(2)'' of the Notification Requirements Table in 
Sec. 268.7(a)(4).
    (3) If the waste meets the treatment standard: The generator must 
send a one-time notice and certification to each treatment or storage 
facility receiving the waste. The notice must state that the 

[[Page 43692]]
waste meets the applicable treatment standards set forth in Sec. 268.40 
or Sec. 268.45. The notice must also include the information indicated 
in column ``268.7(a)(3)'' of the Notification Requirements Table in 
Sec. 268.7(a)(4). However, generators of hazardous debris excluded from 
the definition of hazardous waste under Sec. 261.3(e)(2) of this 
chapter are not subject to these requirements. If the waste changes, 
the generator must send a new notice and certification to the receiving 
facility, and place a copy in their files.
    (4) For reporting, tracking and recordkeeping when exceptions allow 
certain wastes that do not meet the treatment standards to be land 
disposed: There are certain exemptions from the requirement that 
hazardous wastes meet treatment standards before they can be land 
disposed. These include, but are not limited to case-by-case extensions 
under Sec. 268.5, disposal in a no-migration unit under Sec. 268.6, or 
a national capacity variance under subpart C of this part. If a 
generator's waste is so exempt, then the generator must submit a one-
time notice and certification to each land disposal facility receiving 
the waste. The notice must include the information marked off in column 
``268.7(a)(4)'' of the Notification Requirements Table below. If the 
waste changes, the generator must send a new notice and certification 
to the receiving facility, and place a copy in their files.

                                          Paperwork Requirements Table                                          
----------------------------------------------------------------------------------------------------------------
                Required Information                   Sec.  268.7(a)(2)   Sec.  268.7(a)(3)   Sec.  268.7(a)(4)
----------------------------------------------------------------------------------------------------------------
1. EPA Hazardous Waste and Manifest Numbers.........                                 
2. The constituents for F001-F005, F039, and                                                                    
 underlying hazardous constituents, unless the waste                                                            
 will be treated and monitored for all constituents                                                             
 (in which case none are required to be listed). The                                                            
 notice must include the applicable wastewater/                                                                 
 nonwastewater category (see Secs.  268.2(d) and                                                                
 (f)) and subdivisions made within a waste code                                                                 
 based on waste-specific criteria (such as D003                                                                 
 reactive cyanide)..................................                                                   
3. Waste analysis data (when available).............                                                   
4. Date the waste is subject to the prohibition.....                                                   
5. Certification statement: 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, or is subject to an                                                              
 exmeption from the treatment standards, specified                                                              
 in 40 CFR part 268 subpart 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.......................................                                          
6. For hazardous debris, when treating with the                                                                 
 alternative treatment technologies provided by Sec.                                                            
  268.45: the contaminants subject to treatment, as                                                             
 described in Sec.  268.45(b); and an indication                                                                
 that these contaminants are being treated to comply                                                            
 with Sec.  268.45..................................                                                   
----------------------------------------------------------------------------------------------------------------

    (5) 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 kept in the facility's on-site files and 
made available to inspectors.
    (iii) Wastes shipped off-site pursuant to this paragraph must 
comply with the notification requirements of Sec. 268.7(a)(4).
    (6) If a generator determines that 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 that the waste is restricted based on testing 
this waste or an extract developed using the test method 1311 in ``Test 
Methods for Evaluating Solid Waste, Physical/Chemical Methods,'' EPA 
Publication SW-846, as referenced in Sec. 260.11 of this chapter, and 
all waste analysis data must be retained on-site in the generator's 
files.
    (7) 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.
    (8) Generators must retain on-site a copy of all notices, 
certifications, waste analysis data, and other documentation produced 
pursuant to this section for at least three 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 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. 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 261.2-261.6, or exempted from 
Subtitle C regulation, subsequent to the point of generation.

[[Page 43693]]

    (9) If a generator is managing a lab pack waste and wishes to use 
the alternative treatment standard for lab packs found at 
Sec. 268.42(c), with each shipment of waste the generator must submit a 
notice to the treatment facility in accordance with paragraph (a)(2) of 
this section. If the lab pack contains characteristic hazardous wastes 
(D001-D043), underlying hazardous constituents (as defined in 
Sec. 268.2(i)) need not be determined. The generator must also comply 
with the requirements in paragraphs (a)(6) and (a)(7) 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 that have not been excluded under appendix IV to 40 CFR part 
268. I am aware that there are significant penalties for submitting 
a false certification, including the possibility of fine or 
imprisonment.

    (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) Treatment facilities must test their wastes according to the 
frequency specified in their waste analysis plans as required by 40 CFR 
264.13 (for permitted TSDs) or 40 CFR 265.13 (for interim status 
facilities). Such testing must be performed as provided in paragraphs 
(b)(1), (b)(2) and (b)(3) of this section.
    (1) For wastes with treatment standards expressed as concentrations 
in the waste extract (TCLP) the owner or operator of the treatment 
facility must test the treatment residues, or an extract of such 
residues developed 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), to assure 
that the treatment residues or extract meet the applicable treatment 
standards.
    (2) For wastes with treatment standards expressed as concentrations 
in the waste, the owner or operator of the treatment facility must test 
the treatment residues (not an extract of such residues) to assure that 
the treatment residues meet the applicable treatment standards.
    (3) A notice must be sent with each waste shipment to the land 
disposal facility except that debris excluded from the definition of 
hazardous waste under Sec. 261.3(e) of this chapter (i.e., debris 
treated by an extraction or destruction technology provided by Table 1, 
Sec. 268.45, and debris that the Director has determined does not 
contain hazardous waste) is subject to the notification and 
certification requirements of paragraph (d) of this section rather than 
these notification requirements. The notice must include the 
information in the Notification Requirements Table in this section.

                      Paperwork Requirements Table                      
------------------------------------------------------------------------
                  Required information                    Sec.  268.7(b)
------------------------------------------------------------------------
1. EPA Hazardous Waste and Manifest numbers............        
2. The constituents for F001-F005, F039, and underlying                 
 hazardous constituents, unless the waste will be                       
 treated and monitored for all constituents (in which                   
 case none are required to be listed). The notice must                  
 include the applicable wastewater/nonwastewater                        
 category (see Secs.  268.2 (d) and (f)) and                            
 subdivisions made within a waste code based on waste-                  
 specific criteria (such as D003 reactive cyanide).....        
3. Waste analysis data (when available)................        
------------------------------------------------------------------------

    (4) The treatment facility must submit a certification with each 
shipment of waste or treatment residue of a restricted waste to the 
land disposal facility stating that the waste or treatment residue has 
been treated in compliance with the applicable performance standards 
specified in subpart D of this part. Debris excluded from the 
definition of hazardous waste under Sec. 261.3(e) of this chapter 
(i.e., debris treated by an extraction or destruction technology 
provided by Table 1, Sec. 268.45, and debris that the Director has 
determined does not contain hazardous waste), however, is subject to 
the notification and certification requirements of paragraph (d) of 
this section rather than the certification requirements of this 
paragraph.
    (i) For wastes with treatment standards expressed as concentrations 
in the waste extract or in the waste under Sec. 268.40 of this part, 
the certification must be signed by an authorized representative and 
must state the following:
* * * * *
    (ii) For wastes with treatment standards expressed as technologies 
in Sec. 268.40 (described in Sec. 268.42) of this part, the 
certification must be signed by an authorized representative and must 
state the following:
* * * * *
    (iii) For wastes with treatment standards expressed as 
concentrations in the waste pursuant to Sec. 268.40, if compliance with 
the treatment standards in subpart D of this part is based in part or 
in whole on the analytical detection limit alternative specified in 
Sec. 268.43(c), the certification also must state the following:
* * * * *
    (c) * * *
    (1) Have copies of the notice and certifications specified in 
paragraph (a) of this section.
    (2) Test the waste, or an extract of the waste or treatment residue 
developed 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), to assure that the wastes or 
treatment residues are in compliance with the applicable treatment 
standards set forth in subpart D of this part. Such testing must be 
performed according to the frequency specified in the facility's waste 
analysis plan as required by Sec. 264.13 or Sec. 265.13 of this 
chapter.
* * * * *
    8. Section 268.9 is amended by revising paragraph (a), and 
paragraph (d)(1)(ii) 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 


[[Page 43694]]
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 listed waste under 40 CFR part 261, subpart D. In 
addition, where the waste exhibits a characteristic, the waste will 
carry one or more of the characteristic waste codes under 40 CFR part 
261, subpart C, except when the treatment standard for the listed waste 
operates in lieu of the treatment standard for the characteristic 
waste, as specified in paragraph (b) of this section. If the generator 
determines that their waste displays a hazardous characteristic (and is 
not D001 nonwastewaters treated by CMBST, RORGS, or POLYM of 
Sec. 268.42, Table 1), the generator must determine the underlying 
hazardous constituents (as defined in Sec. 268.2), in the 
characteristic wastes.
* * * * *
    (d) * * *
    (1) * * *
    (ii) A description of the waste as initially generated, including 
the applicable EPA hazardous waste code(s), treatability group(s), and 
underlying hazardous constituents (as defined in Sec. 268.2(i)), unless 
the waste will be monitored for all underlying hazardous constituents, 
in which case no constituents need be specified on the notification.
* * * * *

Subpart C--Prohibitions on Land Disposal


Secs. 268.31, 268.32, 268.33, 268.34, 268.35 and 268.36  [Removed and 
Revised]

    9. In Subpart C, Secs. 268.31, 268.32, 268.33, 268.34, 268.35, and 
268.36 are removed and reserved, and Sec. 268.30 is revised to read as 
follows:


Sec. 268.30  Waste specific prohibitions--wood preserving wastes, and 
characteristic wastes that fail the toxicity characteristic.

    (a) Effective November 20, 1995, the wastes specified in 40 CFR 261 
as EPA Hazardous Waste numbers D004-D011 (as measured by the Toxicity 
Characteristic Leaching Procedure), F032, F034, and F035, are 
prohibited from land disposal.
    (b) Effective August 22, 1997, soil and debris contaminated with 
F032, F034, F035; and radioactive wastes mixed with EPA Hazardous waste 
numbers D004-D011 (as measured by the Toxicity Characteristic Leaching 
Procedure) are prohibited from land disposal.
    (c) Between November 20, 1995 and August 22, 1997, hazardous wastes 
F032, F034, F035; radioactive wastes mixed with EPA Hazardous waste 
numbers F032, F034, F035, and soil and debris contaminated with these 
wastes, 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), and (b) 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; or
    (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 (including underlying hazardous constituents in 
characteristic wastes that have been diluted to remove the 
characteristic) in excess of the applicable Universal Treatment 
Standard levels of Sec. 268.48 of this Part, the waste is prohibited 
from land disposal, and all requirements of part 268 are applicable, 
except as otherwise specified.

Subpart D--Treatment Standards

    10. Section 268.40 is amended by revising paragraph (e), and in the 
Table of Treatment Standards adding in alpha-numerical order entries 
for F032, F033, and F034, and revising the entries for D001 High TOC 
Subcategory, D003 Explosives, D004 through D011, and F039 to read as 
follows:


Sec. 268.40  Applicability of Treatment Standards.

* * * * *
    (e) For characteristic wastes 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.
* * * * *

                                                        Treatment Standards for Hazardous Wastes                                                        
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Regulated Hazardous Constituent              Wastewaters         Nonwastewaters   
                                                             -------------------------------------------------------------------------------------------
                                    Waste description and                                                                           Concentration in mg/
          Waste Code                treatment/regulatory                                                      Concentration in mg/   kg \5\ unless noted
                                       subcategory \1\                   Common Name             CAS \2\ No.  l \3\; or technology   as ``mg/l TCLP'' or
                                                                                                                    code \4\           technology code  
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
D001                            *    *    *    *    *    *                                                                                              
                                                                                                                                                        
                                High TOC Ignitable            NA...............................           NA  NA..................  RORGS; or CMBST; or 
                                 Subcategory based on 40 CFR                                                                         POLYM.             
                                 261.2(a)(1)--Greater than                                                                                              
                                 or equal to 10% total                                                                                                  
                                 organic carbon (Note: this                                                                                             
                                 subcategory consists of                                                                                                
                                 nonwastewaters only)                                                                                                   
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
D003                            *    *    *    *    *    *                                                                                              

[[Page 43695]]
                                                                                                                                                        
                                Explosives Subcategory based  NA...............................           NA  DEACT and meet Sec.   DEACT and meet Sec. 
                                 on Sec.  261.23(a)(6), (7),                                                   268.48 standards      268.48 standards.  
                                 and (8)                                                                                                                
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
D004                            Wastes that exhibit, or are   Arsenic..........................    7440-38-2  1.4.................  5.0 mg/l TCLP.      
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for arsenic                                                                                                            
D005                            Wastes that exhibit, or are   Barium...........................    7440-39-3  1.2.................  7.6 mg/l TCLP.      
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for barium                                                                                                             
D006                            Wastes that exhibit, or are   Cadmium..........................    7440-43-9  0.69................  0.19 mg/l TCLP.     
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for cadmium                                                                                                            
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
D007                            Wastes that exhibit, or are   Chromium (Total).................    7440-47-3  2.77................  0.86 mg/l TCLP.     
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for chromium                                                                                                           
D008                            Wastes that exhibit, or are   Lead.............................    7439-92-1  0.69................  0.37 mg/l TCLP.     
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for lead                                                                                                               
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
D009                            *    *    *    *    *    *                                                                                              
                                Nonwastewaters that exhibit,  Mercury..........................    7439-97-6  NA..................  0.20 mg/l TCLP.     
                                 or are expected to exhibit,                                                                                            
                                 the characteristic of                                                                                                  
                                 toxicity for mercury; and                                                                                              
                                 contain less than 260 mg/kg                                                                                            
                                 total mercury. (Low Mercury                                                                                            
                                 Subcategory)                                                                                                           
                                All D009 wastewaters........  Mercury..........................    7439-97-6  0.15................                      
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
D010                            Wastes that exhibit, or are   Selenium.........................    7782-49-2  0.82................  0.16 mg/l TCLP.     
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for selenium                                                                                                           
D011                            Wastes that exhibit, or are   Silver...........................    7440-22-4  0.43................  0.30 mg/l TCLP.     
                                 expected to exhibit, the                                                                                               
                                 characteristic of toxicity                                                                                             
                                 for silver                                                                                                             
                                                                                                                                                        
                                                                                                                                                        

[[Page 43696]]
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
F032                            Wastewaters, process          Pentachlorodibenzofurans.........           NA  0.000063............  0.001               
                                 residuals, preservative      Tetrachlorodibenzofurans.........           NA  0.000063............  0.001               
                                 drippage, and spent          Arsenic..........................    7440-38-2  1.4.................  5.0 mg/l TCLP.      
                                 formulations from wood       Chromium (Total).................    7440-47-3  2.77................  0.86 mg/l TCLP.     
                                 preserving processes                                                                                                   
                                 generated at plants that                                                                                               
                                 currently use or have                                                                                                  
                                 previously used                                                                                                        
                                 chlorophenolic formulations                                                                                            
                                 (except potentially cross-                                                                                             
                                 contaminated wastes that                                                                                               
                                 have had the FO32 waste                                                                                                
                                 code deleted in accordance                                                                                             
                                 with section 40 CFR 261.35                                                                                             
                                 and where the generator                                                                                                
                                 does not resume or initiate                                                                                            
                                 use of chlorophenolic                                                                                                  
                                 formulations). This listing                                                                                            
                                 does not include K001                                                                                                  
                                 bottom sediment sludge from                                                                                            
                                 the treatment of wastewater                                                                                            
                                 from wood preserving                                                                                                   
                                 processes that use creosote                                                                                            
                                 and/or pentachlorophenol                                                                                               
F034                                                                                                                                                    
                                Wastewaters, process          Acenaphthene.....................      83-32-9  0.059...............  3.4                 
                                 residuals, preservative      Anthracene.......................     120-12-7  0.059...............  3.4                 
                                 drippage, and spent          Benz(a)anthracene................      56-55-3  0.059...............  3.4                 
                                 formulations from wood       Benzo(a)pyrene...................      50-32-8  0.061...............  3.4                 
                                 preserving processes         Chrysene.........................     218-01-9  0.059...............  3.4                 
                                 generated at plants that     2,4-Dimethylphenol...............     105-67-9  0.036...............  14                  
                                 use creosote formulations.   Fluorene.........................      86-73-7  0.059...............  3.4                 
                                 This listing does not        Hexachlorodibenzofurans..........           NA  0.000063............  0.001               
                                 include K00l bottom          Hexachlorodibenzo-p-dioxins......           NA  0.000063............  0.001               
                                 sediment sludge from the     Naphthalene......................                                                         
                                 treatment of wastewater                                             91-20-3  0.059...............  5.6                 
                                 from wood preserving                                                                                                   
                                 processes that use creosote                                                                                            
                                 and/or pentachlorophenol                                                                                               
                                                              Pentachlorodibenzo-p-dioxins.....           NA  0.000063............  0.001               
                                                              Pentachlorophenol................      87-86-5  0.089...............  7.4                 
                                                              Phenanthrene.....................      85-01-8  0.059...............  5.6                 
                                                              Phenol...........................     108-95-2  0.039...............  6.2                 
                                                              Pyrene...........................     129-00-0  0.067...............  8.2                 
                                                              Tetrachlorodibenzo-p-dioxins.....           NA  0.000063............  0.001               
                                                              2,3,4,6-Tetrachlorophenol........      58-90-2  0.030...............  7.4                 
                                                              2,4,6-Trichlorophenol............      88-06-2  0.035...............  7.4                 
                                                              Arsenic..........................    7440-38-2  1.4.................  5.0 mg/l TCLP.      
                                                              Chromium (Total).................    7440-47-3  2.77................  0.86 mg/l TCLP.     
F035                            Wastewaters, process          Acenaphthene.....................      83-32-9  0.059...............  3.4                 
                                 residuals, preservative      Anthracene.......................     120-12-7  0.059...............  3.4                 
                                 drippage, and spent          Benz(a)anthracene................      56-55-3  0.059...............  3.4                 
                                 formulations from wood       Benzo(a)pyrene...................      50-32-8  0.061...............  3.4                 
                                 preserving processes         Chrysene.........................     218-01-9  0.059...............  3.4                 
                                 generated at plants that     2,4-Dimethylphenol...............     105-67-9  0.036...............  14                  
                                 use inorganic preservatives  Fluorene.........................      86-73-7  0.059...............  3.4                 
                                 containing arsenic or        Naphthalene......................      91-20-3  0.059...............  5.6                 
                                 chromium. This listing does  Pentachlorophenol................      87-86-5  0.089...............  7.4                 
                                 not include K00l bottom      Phenanthrene.....................      85-01-8  0.059...............  5.6                 
                                 sediment sludge from the     Phenol...........................     108-95-2  0.039...............  6.2                 
                                 treatment of wastewater      Pyrene...........................     129-00-0  0.067...............  8.2                 
                                 from wood preserving         2,3,4,6-Tetrachlorophenol........      58-90-2  0.030...............  7.4                 
                                 processes that use creosote                                                                                            
                                 and/or pentachlorophenol                                                                                               
                                                              2,4,6-Trichlorophenol............      88-06-2  0.035...............  7.4                 
                                                              Arsenic..........................    7440-38-2  1.4.................  5.0 mg/l TCLP.      
                                                              Chromium (Total).................    7440-47-3  2.77................  0.86 mg/l TCLP.     
                                                                                                                                                        
                                                                                                                                                        

[[Page 43697]]
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
F039                            Leachate (liquids that have   Universal Treatment Standards in            NA  Universal Treatment   Universal Treatment 
                                 percolated through land       Sec.  268.48 apply, with the                    Standards in Sec.     Standards in Sec.  
                                 disposed wastes) resulting    exceptions of flouride,                         268.48 apply, with    268.48 apply, with 
                                 from the disposal of more     vanadium, and zinc                              the exceptions of     the exceptions of  
                                 than one restricted waste                                                     vanadium and zinc     vanadium and zinc. 
                                 classified as hazardous                                                                                                
                                 under subpart D of this                                                                                                
                                 part. (Leachate resulting                                                                                              
                                 from the disposal of one or                                                                                            
                                 more of the following EPA                                                                                              
                                 Hazardous Wastes and no                                                                                                
                                 other Hazardous Wastes                                                                                                 
                                 retains its EPA Hazardous                                                                                              
                                 Waste Number(s): F020,                                                                                                 
                                 F021, F022, F026, F027, and/                                                                                           
                                 or F028)                                                                                                               
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------


* * * * * *
    11. Section 268.42(a)(3) is amended by adding ``POLYM'' in 
alphabetical order to Table 1 to read as follows:


Sec. 268.42  Treatment standards expressed as specified technologies.

* * * * *
    (a) * * *
    (3) * * *

                    Table 1.--Technology Codes and Description of Technology-Based Standards                    
----------------------------------------------------------------------------------------------------------------
         Technology code                             Description of technology-based standards                  
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                               *                                                                
POLYM............................  Formation of complex high-molecular weight solids through polymerization of  
                                    monomers in high-TOC D001 nonwastewaters.                                   
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                               *                                                                
----------------------------------------------------------------------------------------------------------------

* * * * *
    12. Section 268.44 is amended by revising the introductory text of 
paragraph (o), the title of the table, and the ``see also'' column of 
the table to read as follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (o) The following facilities are excluded from the treatment 
standards under Sec. 268.40 and are subject to the following 
constituent concentrations:

                                        Table 2.--Wastes Excluded From the Treatment Standards Under Sec.  268.40                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Wastewaters                          Nonwastewaters           
Facility name and                                            Regulated     -----------------------------------------------------------------------------
     address           Waste code          See also          hazardous      Concentrations (mg/                     Concentrations (mg/                 
                                                            constituent              l)                Notes                kg)               Notes     
--------------------------------------------------------------------------------------------------------------------------------------------------------
*    *    *           *    *    *       Sec.  268.40                  *                   *                   *         *    *                      *   
*    *    *           *    *    *       Sec.  268.40                  *                   *                   *         *    *                      *   
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 43698]]

* * * * *
Appendix I, Appendix II, Appendix III, Appendix VII, Appendix VIII, 
Appendix IX and Appendix X to Part 268 [Removed and Reserved]

    13. Appendix I, Appendix II, Appendix III, Appendix VII, Appendix 
VIII, Appendix IX, and Appendix X to Part 268 are removed and reserved, 
and Appendix VI to Part 268 is amended by revising the introductory 
text to read as follows:

Appendix VI to Part 268--Recommended Technologies to Achieve 
Deactivation of Characteristics in Section 268.40

    The treatment standard for many subcategories of D001, D002, and 
D003 wastes as well as for K044, K045, and K047 wastes is listed in 
Sec. 268.40 as ``Deactivation and meet UTS.'' EPA has determined 
that many technologies, when used alone or in combination, can 
achieve the deactivation portion of the treatment standard. 
Characteristic wastes that also contain underlying hazardous 
constituents (see Sec. 268.2) must be treated not only by a 
``deactivating'' technology to remove the characteristic, but also 
to achieve the universal treatment standards (UTS) for underlying 
hazardous constituents. The following appendix presents a partial 
list of technologies, utilizing the five letter technology codes 
established in 40 CFR 268.42 Table I, that may be useful in meeting 
the treatment standard. Use of these specific technologies is not 
mandatory and does not preclude direct reuse, recovery, and/or the 
use of other pretreatment technologies, provided deactivation is 
achieved and, if applicable, underlying hazardous constituents are 
treated to achieve the UTS.
* * * * *

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

    14. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a) and 6926.

Subpart A--Requirements for Final Authorization

    15. 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, to read 
as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984              
----------------------------------------------------------------------------------------------------------------
                                                             Federal Register                                   
      Promulgation date           Title of Regulation            reference                 Effective date       
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
[Insert date of publication    Land Disposal             [Insert FR page numbers]  [Insert date of 90 days from 
 of final rule in the Federal   Restrictions Phase IV.                              date of publication of final
 Register (FR)].                                                                    rule].                      
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

* * * * *

                  Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984                  
----------------------------------------------------------------------------------------------------------------
                                                                                            Federal Register    
        Effective date          Self-implementing provision         RCRA citation               reference       
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
[Insert date 90 days from      Prohibition on land disposal   3004(g)(4) (C) and 3004   [Insert date of         
 date of publication of final   of newly listed and            (m).                      publication of final   
 rule].                         identified wastes.                                       rule] 59 FR [Insert    
                                                                                         page numbers].         
[Insert date 2 years from      Prohibition on land disposal   3004(m).................      Do.                 
 date of publication of final   of radioactive waste mixed                                                      
 rule].                         with the newly listed or                                                        
                                identified wastes, including                                                    
                                soil and debris.                                                                
                                 ...........................  3004(g)(4)(C) and             Do.                 
                                                               3004(m).                                         
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

* * * * *
    16. Section 271.28 is added to read as follows:


Sec. 271.28  Streamlined authorization procedures.

    (a) The procedures contained in this section may be used by a State 
when revising its program by applying for authorization for the 
following rules, or parts of rules:
    (1) The following changes promulgated by the Land Disposal 
Restrictions Phase Two rule (59 FR 47980, September 19, 1994) if a 
State is authorized for Land Disposal Restrictions rules up to the 
Third Third (55 FR 22520, June 1, 1990):
    (i) New Table in Sec. 268.40; and
    (ii) New Sec. 268.48.
    (2) The following changes proposed by the Land Disposal 
Restrictions Phase Three rule (proposed at 60 FR 11702, May 2, 1995) if 
a State is authorized for Land Disposal Restrictions rules up to the 
Third Third (55 FR 22520, June 1, 1990):
    (i) Amendments to Secs. 266.20(b), 268.2, 268.7, 268.39, the Table 
to 268.40, 268.48; and
    (ii) Removal of Secs. 268.8, 268.10-12.
    (3) All provided regulatory provisions of the proposed Land 
Disposal Restrictions Phase Four rule ([insert date of publication of 
final rule] FR 

[[Page 43699]]
[Insert FR page number]), except amended Sec. 268.1, if a State is 
authorized for Land Disposal Restrictions rules up to the Third Third 
(55 FR 22520, June 1, 1990).
    (b) An application for a revision of a State's program for the 
provisions stated in paragraph (a) of this section shall consist of:
    (1) A certification from the State that its laws provide authority 
that is equivalent to and no less stringent than the provisions 
specified in paragraph (a), and which includes references to the 
specific statutes, administrative regulations and where appropriate, 
judicial decisions. State statutes and regulations cited in the State 
certification shall be fully effective at the time the certification is 
signed; and
    (2) Copies of all applicable State statutes and regulations.
    (c) Within 30 days of receipt by EPA of a State's application for 
final authorization to implement a rule specified in paragraph (a) of 
this section, if the Administrator determines that the application is 
not complete, the Administrator shall notify the State that the 
application is incomplete. This notice shall include a concise 
statement of the deficiencies which form the basis for this 
determination.
    (d) For purposes of this section an incomplete application is one 
where:
    (1) Copies of applicable statutes or regulations were not included;
    (2) The statutes or regulations relied on by the State to implement 
the program revisions are not yet in effect;
    (3) The State is not authorized to implement the prerequisite RCRA 
rules as specified in paragraph (a) of this section; or
    (4) In the certification, the citations to the specific statutes, 
administrative regulations and where appropriate, judicial decisions 
are not included or incomplete.
    (e) Within 60 days after receipt of a complete final application 
from a State for final authorization to implement a rule or rules 
specified in paragraph (a) of this section, absent information in the 
possession of EPA, the Administrator shall publish an immediate final 
notice of the decision to grant final authorization as follows:
    (1) In the Federal Register;
    (2) In enough of the largest newspapers in the State to attract 
Statewide attention; and
    (3) By mailing to persons on the State agency mailing list and to 
any other persons whom the Agency has reason to believe are interested.
    (f) The public notice under paragraph (e) of this section shall 
summarize the State program revision and provide for an opportunity to 
comment for a period of 30 days.
    (g) Approval of State program revisions under this section shall 
become effective 60 days after the date of publication in the Federal 
Register in accordance with paragraph (e) of this section, unless a 
significant adverse comment pertaining to the State program revision 
discussed in the notice is received by the end of the comment period. 
If a significant adverse comment is received, the Administrator shall 
so notify the State and shall, within 60 days after the date of 
publication, publish in the Federal Register either:
    (1) A withdrawal of the immediate final decision; or
    (2) A notice containing a response to comments and either affirming 
that the immediate final decision takes effect or reversing the 
decision.

[FR Doc. 95-20623 Filed 8-21-95; 8:45 am]
BILLING CODE 6560-50-P