[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38684-38687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18836]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 261, 268, 271

[FRL-5542-2]
RIN 2050-AD38


Land Disposal Program Flexibility Act of 1996--Surface 
Impoundment Study

AGENCY: Environmental Protection Agency.

ACTION: Request for comments.

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SUMMARY: On March 26, 1996, the President signed the Land Disposal 
Program Flexibility Act of 1996. This statute overrules certain parts 
of the D.C. Circuit's opinion in Chemical Waste Management v. EPA, 976 
F. 2d 2 (D.C. Cir. 1992), cert. denied 113 S.Ct. 1961 (1993) which 
relate to managing so-called decharacterized wastes--characteristic 
hazardous waste whose characteristic has been removed before land 
disposal--in centralized wastewater management systems regulated under 
the Clean Water Act (CWA) or the Safe Drinking Water Act (SDWA).
    The subject of this Federal Register document is a related 
provision in the statute which requires that not later than five years 
after the date of enactment, EPA shall complete a study of potential 
risks to human health or the environment posed by managing these 
decharacterized hazardous wastes in either a) surface impoundments 
which are part of wastewater treatment systems whose ultimate discharge 
is regulated under the CWA, or b) Class I non-hazardous injection wells 
regulated under the SDWA.
    EPA is seeking to develop more information in order to prepare the 
portion of the study dealing with surface impoundments. This Federal 
Register document has been prepared for industry representatives and 
environmental groups to clearly define the Agency's expectations in 
requesting draft methodologies that outline the conceptual design of 
the study, including how best to collect data, data quality assurance/
quality control
(QA/QC), risk assessment, and peer review. Concurrently, the Agency 
will develop a methodology to ensure that requirements of the 
legislation are satisfied and the conceptual design of the study is 
balanced with those of the commenters. Upon receipt of draft 
methodologies from commenters, the Agency will convene a workgroup to 
select an overall, scientifically defensible approach to address the 
requirements of the legislation. The selected methodology will then be 
subject to a peer review process conducted by a peer review panel set 
up by the Agency to provide oversight and QA/QC of the study.

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

ADDRESSES: To submit draft methodologies, the public must send an 
original and two copies to Docket Number F-96-PMWA-FFFFF, located at 
the RCRA Docket. The mailing address is: RCRA Information Center, U.S. 
Environmental Protection Agency (5305G), 401 M Street, SW., Washington, 
DC 20460. The RCRA Information Center is located at 1235 Jefferson 
Davis Highway, First Floor, Arlington, Virginia. The RCRA Information 
Center is open for public inspection and copying of supporting 
information for RCRA rules from 9:00 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. The public must make an appointment 
to review docket materials by calling (703) 603-9230. The public may 
copy a maximum of 100 pages from any regulatory document at no cost. 
Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information or to order 
paper copies of this Federal Register document, call the RCRA Hotline. 
Callers within the Washington Metropolitan Area must dial (703) 412-
9810 or TDD (703) 412-3323 (hearing impaired). Long-distance callers 
may call 1-800-424-9346 or TDD 1-800-553-7672. The RCRA Hotline is open 
Monday through Friday from 9:00 a.m. to 6:00 p.m., Eastern Standard 
Time. For other information on this notice, contact Linda Martin 
(5307W), Office of Solid Waste, 401 M Street, SW., Washington, D.C. 
20460, phone (703) 308-0499.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

    EPA is asking prospective commenters to voluntarily submit one 
additional copy of their comments on labeled personal computer 
diskettes in ASCII (TEXT) format or a word processing format that can 
be converted to ASCII (TEXT). It is essential to specify on the disk 
label the word processing software and version/edition as well as the 
commenter's name. This will allow EPA to convert the comments into one 
of the word processing formats utilized by the Agency. Please use 
mailing envelopes designed to physically protect the submitted 
diskettes. EPA emphasizes that submission of comments on diskettes is 
not mandatory, nor will it result in any advantage or disadvantage to 
any commenter. This expedited procedure is in conjunction with the 
Agency ``Paperless Office'' campaign. For further information on the 
submission of diskettes, contact Linda Martin of the Economics, 
Methods, and Risk Assessment Division at (703) 308-0499. This Federal 
Register Notice is available on the Internet System through EPA Public 
Access Server at gopher.epa.gov or through WWW.epa.gov. For the text of 
the notice, choose: Rules, Regulations, and Legislation; the FR-Waste; 
finally, Year/Month/Day.

Request for Comments

    On March 26, 1996, President Clinton signed into law the Land 
Disposal Program Flexibility Act of 1996. This legislation amends 
section 3004(g) of RCRA to overrule portions of the District of 
Columbia Circuit Court of Appeals' 1992 decision (Chemical Waste 
Management v. EPA, 976 F. 2d 2) dealing with the requirement to treat 
wastes that as generated exhibit a characteristic of hazardous waste, 
but

[[Page 38685]]

are diluted to remove that characteristic and are then placed in land 
disposal units--either surface impoundments that are part of Clean 
Water Act wastewater treatment systems or Class I injection wells. The 
legislation, by and large, states that treatment of such wastes is not 
required before placing them in these land disposal units. See 
generally, 61 FR 15660 (April 8, 1996) codifying portions of this 
legislation.
    The statute further requires EPA to conduct a study characterizing 
risks to human health or the environment associated with management of 
decharacterized wastes in impoundments which are part of Clean Water 
Act treatment systems, or in Class I injection wells. EPA is also 
authorized to develop additional standards for such units as may be 
necessary to protect human health and the environment, and such 
standards could be based on the results of the study. (RCRA section
3004(g)(10)). This notice concerns the part of the study dealing with 
surface impoundments.
    In conducting the Surface Impoundment Study (hereafter referred to 
as ``the study''), the Agency hopes to arrange and maintain a 
cooperative effort with all interested parties as EPA moves forward to 
develop a scientifically defensible work plan for conducting the study. 
Input into the data collection and development of the study design, as 
well as information regarding current management practices will prove 
invaluable in developing such a work plan.
    Currently, the Agency is developing a draft methodology to assess 
potential risks posed by management of decharacterized wastes in 
surface impoundments. Key steps being taken to develop a draft 
methodology include identifying issues related to conducting the study, 
conducting meetings with interested parties, establishing a methodology 
for conducting the study, and establishing a peer-review structure for 
the study. The objective of the approach is to address Congress' 
concerns by assessing potential risks posed by management of 
decharacterized wastes in surface impoundments, assessing the degree to 
which existing State/Federal/Tribal programs effectively mitigate those 
risks, and finally determining which State/Federal/Tribal laws or 
programs are best equipped to manage the remaining risks, or whether 
independent controls may be needed.
    To this end, EPA requests that interested industry, environmental 
and state groups provide input to the Agency into the development of 
the study such that Congress' concerns are addressed. Issues for which 
input is needed include data collection, quality assurance/quality 
control of data, development of risk assessment methods, establishment 
of a peer-review structure for the study, and assessment of current 
State/Federal/Tribal regulations or programs that address risks posed 
by decharacterized wastewaters managed in surface impoundments. 
Additionally, the Agency also requests input regarding regulations or 
programs that could be developed to address these risks.
    Specifically, EPA requests that each interested group develop 
proposed methodologies and work plans for conducting the study of risks 
and existing regulations associated with surface impoundments receiving 
decharacterized wastes. Specific elements to be included in the 
methodology are outlined below. Following the methodology outline is 
EPA's preliminary schedule for completing the study, which is included 
in this document in order that commenters can better understand how and 
when EPA intends to proceed, and the role commenters can play. EPA will 
then evaluate proposed work plans submitted by commenters, in 
combination with its own work plan, by means of a peer review process.

Methodology Outline

    Proposed methodologies should be organized according to the 
following format.

I. Conceptual Approach to the Study

    The most critical element of the study is the completion of a high-
quality, peer-reviewed risk assessment, since accurate identification 
of priorities for surface impoundment regulation and conclusions about 
the need for new regulations depend on the risk results. The 
development of an appropriate risk assessment methodology is therefore 
very important. The purpose of this section of the proposed methodology 
is to address key elements of the methodology and threshold questions, 
including but not limited to:
    A. What should be the overall scope of the study?
    B. What should be done to ensure credibility of the study?
    C. What do you expect your group's role to be in conducting the 
study?
    D. How heavily should we rely upon fate and transport modeling 
versus actual exposure monitoring?
    E. Can the study be completed with available data?
    F. How should additional data be collected?
    G. Are there innovative mechanisms to conducting or designing the 
study using third parties (scientific organizations)?

II. Detailed Methodology

    A. Sampling strategy:
    i. Identification of the universe of facilities/ Study Population
    ii. Description of the approach to sampling the universe of 
facilities/ Study Population (representativeness of the sample)
    1. Random versus Judgmental
    2. Stratification
    3. Sample size
    B. Risk Characterization 1:
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    \1\ It should be noted that, from the advent of the D.C. 
Circuit's decision, EPA has repeatedly solicited data on the types, 
volumes, and concentrations of hazardous constituents, plus types 
and magnitudes of releases from surface impoundments managing 
decharacterized wastes. See, e.g., Supplemental Information to 
Notice of Data Availability (58 FR 4972, Jan. 19, 1993) at pp. 17, 
18, 19; Phase 4 Proposed Rule (60 FR 43654, Aug. 22, 1995). To date, 
members of affected industry have provided virtually no hard 
information in response. EPA hopes that such information will be 
forthcoming as it develops the surface impoundment study.
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    i. Data/Source Term Characterization
    1. Facility
    a. History
    b. Location
    c. Surrounding Land Uses
    d. Meteorological Data
    e. Subsurface Hydrogeology
    2. Units
    a. Point of Generation quantity of characteristic waste generated 
for each facility and/or industry; quantity of sludge generated 
(including sludge that is currently dredged from affected surface 
impoundments and sludge left in place in these units)
    b. Surface Impoundments (including the use of surface impoundments 
or tanks to treat decharacterized wastewaters; types of surface 
impoundments used; size of surface impoundments; waste segregation and 
treatment practices at the unit, including the quantity of 
characteristic wastewaters that are segregated and the potential cost 
associated with segregating wastewaters)
    c. Storm water Runoff (including the use of surface impoundments 
for Storm water runoff)
    3. Hazardous Constituents in Decharacterized Wastewaters
    a. Physical state
    b. Toxicity information
    c. Concentration
    1. At the point of generation (prior to aggregation and/or 
decharacterization)
    2. In surface impoundment based treatment systems (near the point 
at which they might be released to the environment)

[[Page 38686]]

    3. In leachate from surface impoundments (including leachate 
release quantities and estimates of the relationship between 
constituent concentrations in surface impoundment wastewater and 
constituent concentration in leaks)
    4. Estimates of the relationship between the concentration in 
surface impoundments and the subsequent releases to air at affected 
facilities (including concentrations of toxic constituents in ambient 
air around affected facilities)
    5. Sludge constituent concentrations
    ii. Fate and Transport
    1. Estimation of future fate and transport
    a. What models should be used to estimate fate and transport? What 
are the limitations of applying each model?
    b. Pathways of concern
    c. Handling complex environments; in subsurface, extreme 
meteorological events
    2. Describe key elements of fate and transport parameter selection
    a. Leachate flow volumes
    b. An assessment of surrounding hydrogeologic conditions
    c. Results from site specific fate and transport analyses that 
consider a site's hydrogeologic conditions
    d. Distance from the surface impoundment or landfill to the nearest 
well and the numbers of persons using those wells
    e. The exact location of the affected surface impoundment or 
facility (e.g., county, city, latitude and longitude)
    C. Exposure:
    i. Describe key elements of parameter selection
    a. Distance to potential receptor populations
    b. Size of potential receptor populations
    ii. Describe the extent to which modeling should be used to 
estimate risks, including which models should be used to determine 
risk, and whether the exposure model should be linked with the selected 
fate and transport model.
    iii. Describe the extent to which Monte Carlo analysis should be 
used to estimate risks
    iv. Describe the extent to which the study should focus upon highly 
exposed sub-populations versus individuals
    v. Describe whether the study should estimate High-End and/or 
Central Tendency risks
    D. Data QA/QC and Peer Review:
    i. Develop a QA Project Plan:
    1. data quality objectives;
    2. project objectives;
    3. sample collection;
    4. analysis and testing;
    5. quality control;
    6. project documentation;
    7. organization performing field or laboratory operations 
(performance evaluation; internal assessment by QA function; external 
assessment; on-site evaluation (field activities, laboratory 
activities); QA reports).
    ii. Describe how to establish a peer review process, including 
composition of the peer review panel.

Terms of Reference/ Evaluation Criteria

    To stimulate thinking on this topic and establish criteria for 
evaluating methodologies, the Agency has established terms of reference 
for the risk assessment. Input Data Requirements--Data collected to 
support the risk assessment must be quality controlled, must be 
representative of the target universe and must be sufficiently detailed 
to support statistical modeling of uncertainty in risk outputs. Release 
Estimates--The risk assessment should consider all plausible forms of 
release from surface impoundments. Releases to be considered should 
include, but not be limited to: releases to groundwater and air from 
the unit, overland releases, and releases associated with the dredging, 
treatment, and disposal of sludges.
    Fate and Transport Modeling--Fate and transport modeling should, to 
the extent possible, reflect the state of the art in groundwater and 
air dispersion modeling. At a minimum, the fate and transport modeling 
should incorporate speciation chemistry to non-toxic forms of chemical 
constituents where relevant, and, to facilitate review of the results, 
rely on non-proprietary models.
    Exposure Assessment--Exposure assessment should consider both 
direct and indirect pathways. Constituent-specific estimates of 
exposure should reflect cumulative exposure across all relevant 
pathways. Pathways should be omitted only after careful consideration 
of whether they contribute significantly to total exposure.
    Cancer and Non-Cancer Health Risk Assessment--The cancer and non-
cancer health risk assessment methodology should reflect new Agency 
guidelines for conducting these types of studies.
    Peer Review--The analysis must include provisions for peer review 
of proposed methodologies; intermediate results for input data, fate 
and transport, exposure assessment, and risk characterization; and, 
overall results. Elements of separate methodologies, including the 
Agency's own methodology may be combined to form an overall approach to 
assess risk. In this case, the overall approach would be subject to 
peer review.
    III. Assessment of Existing State/ Federal/Tribal Programs:
    A. Establish a methodology to conduct a systematic review of 
current and future planned regulations that might influence the 
management of decharacterized wastewaters at affected facilities. 
Include in the methodology a description of information collection 
activities and any limitations.

                                Major Milestones and Preliminary Completion Date                                
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                      Milestone                                             Completion date                     
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 1. Meetings with                                     Initiated in April 1996; On-going.                        
    --Industry; and,                                                                                            
    --Environmental Groups.                                                                                     
 2. Publish Federal Register Notice Soliciting        July 1996.                                                
 Proposed Methodologies from Commenters, with 60-day                                                            
 comment period.                                                                                                
 3. EPA develops proposed methodology to conduct      June-August 1996.                                         
 study.                                                                                                         
 4. Receive proposed methodologies..................  August 1996.                                              
 5. Convene EPA workgroup from relevant offices to    October 1996.                                             
 evaluate proposed methodologies and select one                                                                 
 methodology for peer review.                                                                                   
 6. Develop peer review panel for the selected        December 1996-February 1997.                              
 methodology.                                                                                                   
 7. Finalize work plan and methodology..............  April 1997-May 1997.                                      
 8. Develop and implement survey and data             April 1997-April 1999.                                    
 collection, including: EPA-conducted sampling;                                                                 
 pretesting; OMB approval of ICR; full                                                                          
 implementation of survey for several hundred                                                                   
 facilities; data compilation; and quality control                                                              
 checks.                                                                                                        
 9. Assess coverage of existing regulations.........  September 1997-September 1998.                            

[[Page 38687]]

                                                                                                                
 10. Reassess risks of the wastewaters; interim       April 1997-December 1999.                                 
 Report to Congress on risk results.                                                                            
 11. Combine risk results with regulatory review      January 2000-July 2000.                                   
 results, develop report recommendations, write                                                                 
 draft report.                                                                                                  
 12. Conduct review and finalize report.............  August 2000-March 2001.                                   
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    Dated: July 18, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 96-18836 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P