[Federal Register Volume 63, Number 151 (Thursday, August 6, 1998)]
[Proposed Rules]
[Pages 42190-42192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19930]



  Federal Register / Vol. 63, No. 151 / Thursday, August 6, 1998 / 
Proposed Rules  

[[Page 42190]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6127-9]
RIN 2050-AD88


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule; notice of data availability and request for 
comment.

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SUMMARY: The Environmental Protection Agency (EPA) is making available 
for public comment information relating to its Notice of Proposed 
Rulemaking (NPRM) published in the Federal Register on November 20, 
1995 (60 FR 57747). That NPRM proposed to amend EPA regulations under 
the Resource Conservation and Recovery Act (RCRA) by listing as 
hazardous wastes certain petroleum refining waste streams, and to apply 
universal treatment standards under the Land Disposal Restrictions 
program to the wastes proposed for listing. That NPRM also proposed to 
broaden existing RCRA exclusions for the recycling of oil-bearing 
residuals in petroleum refineries.
    Several weeks before the date of signature of the final rule 
published elsewhere in this issue of the Federal Register, EPA received 
specific information from one company that owns and operates non-
hazardous waste landfills, some of which received one or more of the 
petroleum wastes which the Agency was proposing to list. This company 
realized belatedly that, after the effective date of the new listings 
for these petroleum wastes, the leachate generated from these landfills 
would carry the waste code for one or more of the newly-listed 
hazardous wastes, and could be subject to Subtitle C regulation if 
collected and actively managed.
    EPA is not reopening its settled position that when a waste is 
listed as hazardous, all wastes meeting the listing description, 
including those disposed before the listing effective date, are now 
classified as the listed hazardous waste. The same applies to wastes 
derived from the treatment, storage, or disposal of those wastes 
(again, a settled position not being reopened). Subtitle C regulation 
can apply to such wastes, and to residues derived from such wastes, if 
active management occurs after the date the listings become effective 
(likewise a settled position not being reopened). However, the late 
information does present a legitimate issue as to whether, under 
limited circumstances, the listings should apply to leachate derived 
from management of these particular wastes. This is because to the 
extent these leachates are being adequately managed under the Clean 
Water Act (CWA) program, the EPA would prefer to minimize any possible 
disruptions to the management of this leachate, and try to integrate 
the RCRA and CWA regulatory schemes if possible. There is also an 
ongoing rulemaking activity under the Clean Water Act that directly 
addresses pretreatment standards and effluent limitations for indirect 
and direct discharges of such leachates. Because this issue was brought 
to EPA's attention so late, and for other reasons discussed in this 
document, EPA believes it needs more time to determine how best to 
coordinate these programs with respect to this leachate. Therefore, EPA 
is presenting the pertinent information it has received on this 
question and soliciting comment on the general issue of whether the 
Agency should temporarily defer application of these four new petroleum 
waste codes (published elsewhere in today's Federal Register) to 
leachate from previously disposed wastes that now meet the listing 
description, provided the leachate is treated at Publicly Owned 
Treatment Works (POTW) or treated to meet effluent limitations for 
direct discharge, pending further study of this issue.

DATES: The Agency is reopening the comment period only for the limited 
purpose of obtaining information and views on the new data and 
information described in this document. Comments on the additional data 
will be accepted through September 8, 1998. This document does not 
reopen the comment period for the recently proposed rulemaking on 
effluent guidelines and pretreatment standards for landfills (63 FR 
6426; February 6, 1998).

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number F-98-PR3A-FFFFF to: RCRA Docket 
Information Center, Office of Solid Waste (5305G), U.S. Environmental 
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW, Washington, 
DC 20460. Hand deliveries of comments should be made to the Arlington, 
VA, address listed below. Comments may also be submitted electronically 
by sending electronic mail through the Internet to: 
[email protected]. Comments in electronic format should also 
be identified by the docket number F-98-PR3A-FFFFF.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, 
DC 20460.
    Public comments and supporting materials are available for viewing 
in the RCRA Information Center (RIC), located at Crystal Gateway I, 
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is 
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling (703) 603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. For information on accessing paper 
and/or electronic copies of the document, see the SUPPLEMENTARY 
INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323. For information on specific aspects of this 
document, contact Ross Elliott or Robert Kayser, Office of Solid Waste 
(5304W), U.S. Environmental Protection Agency, 401 M Street comment, 
SW, Washington, DC 20460. (E-mail addresses and telephone numbers: 
[email protected], (703) 308-8748; 
[email protected], (703) 308-7304).

SUPPLEMENTARY INFORMATION: All electronic comments must be submitted as 
an ASCII file avoiding the use of special characters and any form of 
encryption. If comments are not submitted electronically, EPA is asking 
prospective commenters to voluntarily submit one additional copy of 
their comments on labeled personal computer diskettes in ASCII (TEXT) 
format or a word processing format that can be converted to ASCII 
(TEXT). It is essential to specify on the disk label the word 
processing software and version/edition as well as the commenter's 
name. This will allow EPA to convert the comments into one of the word 
processing formats utilized by the Agency. Please use mailing envelopes 
designed to physically protect the submitted diskettes. EPA emphasizes 
that submission of comments on diskettes is not mandatory, nor will it

[[Page 42191]]

result in any advantage or disadvantage to any commenter.
    The official record for this action will be kept in paper form, and 
will be maintained at the address in ADDRESSES at the beginning of this 
document. The index to the docket is available on the Internet. Follow 
these instructions to access the information electronically:

www: http://www.epa.gov/epaoswer/osw/hazwaste.htm#id
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer

    In addition, the document entitled Development Document for 
Proposed Effluent Limitations Guidelines and Standards for the 
Landfills Point Source Category, EPA-821-R-97-022, January 1998, placed 
in the docket for this document, can be obtained through the internet 
at www.epa.gov/OST/Rules/2lndfls/techdev.html. EPA will transfer all 
comments received electronically into paper form and place them in the 
official record, which will also include all comments submitted 
directly in writing. The official record is the paper record.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a document published in the Federal Register or 
in a response to comments document placed in the official record for 
this rulemaking at the same time this document is published in the 
Federal Register. EPA will not immediately reply to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or during conversion to paper form, 
as discussed above.

Background

    Very late in the rulemaking process, the Agency was alerted to the 
concern (not raised by any commenter during the comment period) that 
any new hazardous waste listings for petroleum wastes may have 
potentially significant (but as yet undetermined) impacts on the 
management of leachate collected from certain non-hazardous waste 
landfills. Specifically, one company that owns and operates non-
hazardous waste landfills expressed concern that because some of their 
facilities have historically received and disposed of some or all of 
the waste streams listed in the final rulemaking (i.e., K169, K170, 
K171, and K172) (published elsewhere in today's Federal Register), the 
leachate that is collected and managed from these landfills would be 
classified by these same waste codes after the effective date of the 
new petroleum waste listings. However, if Subtitle C regulation were to 
apply to leachate generated from such landfills, leachate now trucked 
to POTWs (a practice of particular concern with this company) would, as 
a practical matter, no longer be managed by POTWs, since POTWs would 
not wish to become facilities subject to RCRA Subtitle C regulation. 
This company argued that this could lead to vastly increased treatment 
and disposal costs without necessarily any environmental benefit. EPA 
is considering whether it would be appropriate to defer temporarily the 
application of the new petroleum waste codes to such leachate in order 
to avoid disruption of ongoing leachate management activities while the 
Agency decides how to integrate the two regulatory schemes, consistent 
with RCRA section 1006(b)(1) (which requires EPA to integrate 
regulations under RCRA with those of the other statutes implemented by 
EPA in a manner that avoids duplication to the maximum extent possible, 
consistent with the goals and policies of RCRA and the other statutes).

Applicability of New Listings to Landfill Leachate

    Leachate that is derived from the treatment, storage, or disposal 
of listed hazardous wastes is classified as a hazardous waste by virtue 
of the ``derived-from'' rule in 40 CFR 261.3(c)(2). The Agency has been 
very clear in the past on the applicability of hazardous waste listings 
to wastes disposed of prior to the effective date of a listing, even if 
the landfill ceases disposal of the waste when the waste becomes 
hazardous. 53 FR at 31147 (August 17, 1988). EPA also has a well-
established interpretation that listings likewise apply to leachate 
derived from the disposal of listed hazardous wastes, including 
leachate derived from wastes disposed before a listing effective date 
which meet the listing description. Id. EPA's interpretations were 
emphatically upheld by the Court of Appeals for the District of 
Columbia Circuit in Chemical Waste Management, Inc. v. EPA, 869 F.2d 
1526, 1536-37 (D.C. Cir. 1989). None of these issues is reopened by the 
present Notice.
    Of course, as set out in detail in the August 1988 notice, this 
does not mean that landfills holding wastes which are now listed as 
hazardous become subject to Subtitle C regulation. However, previously 
disposed wastes now meeting the listing description, including residues 
such as leachate which are derived from such wastes, which are actively 
managed do become subject to Subtitle C regulation. 53 FR at 31149. In 
many, indeed most circumstances, active management of leachate would be 
exempt from Subtitle C regulation because the usual pattern of 
management is discharge either to POTWs via the sewer system, where 
leachate mixes with domestic sewage and is excluded from RCRA 
jurisdiction (see RCRA Section 1004(27) and 40 CFR 261.4(a)(1)), or to 
navigable waters, also excluded from RCRA jurisdiction (see RCRA 
Section 1004(27) and 40 CFR 261.4(a)(2)). In addition, management of 
leachate in wastewater treatment tanks prior to discharge under the CWA 
is also exempt from RCRA regulation (40 CFR 264.1(g)(6)).
    The company indicated, however, that these exemptions do not apply 
to its current prevalent means of managing its leachate: collection 
followed by transport by truck to a POTW (rather than discharge to a 
POTW by a sewer system, where leachate would mix with domestic sewage, 
which would not trigger Subtitle C, as just explained). The company 
also alleged that it would incur large costs because POTWs would no 
longer accept the leachate in order to remain outside the Subtitle C 
regulatory system. (The company is probably correct as to POTWs' 
reaction, although the potential costs the company could incur have not 
yet been verified.)

Proposed Clean Water Act Requirements for Leachate from Non-
Hazardous Waste Landfills

    EPA's Office of Water recently proposed national effluent 
limitations guidelines and pretreatment standards for wastewater 
discharges (e.g., leachate) from certain types of landfills. 63 FR 6426 
(February 6, 1998). In support of this proposal, EPA conducted a study 
of the volume and chemical composition of wastewaters generated by both 
Subtitle C (hazardous waste) and Subtitle D (non-hazardous waste) 
landfills, including treatment technologies and management practices 
currently in use. EPA did not propose pretreatment standards for 
Subtitle D landfill wastewaters sent to POTWs because the Agency's 
information indicated that such standards were not required due to 
several factors, including: (1) Raw leachate data was below published 
biological inhibition levels, and (2) lack of pass-through of toxics 
(including lack of showing of adverse impact on POTW sludge quality). 
63 FR at 6444. For example, the EPA determined, among other things, 
that ``the majority of pollutants typically found in raw [non-hazardous 
landfill] leachate were at levels comparable to wastewater typically 
found at the headworks of a POTW.'' Id. EPA also

[[Page 42192]]

proposed effluent limitations for direct discharges of leachate from 
nonhazardous waste landfills. After examining various pollutants of 
concern (including conventional, nonconventional, metal, and organic 
pollutants), EPA proposed limitations for nine pollutants. 63 FR at 
6463. EPA believes that the proposed rules, if promulgated, will help 
ensure that leachate is managed effectively while any temporary 
exemption is in effect.

Consideration of Temporary Deferral of Applying New Petroleum Waste 
Codes to Leachate

    Because EPA received this information very late in the rulemaking 
process (indeed, the information is not even part of the administrative 
record for the final rule), EPA needs more time to evaluate the 
potential impacts of the newly-listed waste codes (published in a final 
rule elsewhere in today's Federal Register) on the classification of 
landfill leachate, and to carefully consider whether or not it is 
appropriate to apply the waste codes from one or more of the four 
newly-listed petroleum wastes to landfill leachate which is either sent 
for treatment at POTWs under circumstances not excluded by Section 
261.4(a)(1)(ii), or is directly discharged under Section 402 of the 
CWA. As mentioned above, EPA believes it would be appropriate to defer 
temporarily the application of the new petroleum waste codes to such 
leachate in order to avoid disruption of ongoing leachate management 
activities while the Agency decides how to integrate the two regulatory 
schemes, consistent with RCRA section 1006(b)(1) (regarding integrating 
RCRA regulations with other EPA statutes). See Edison Electric Inst. v. 
EPA, 2 F. 3d 438, 451-53 (D.C. Cir. 1993) (temporary deferral of 
regulation to determine how best to integrate RCRA rules with another 
EPA regulatory system is permissible); see also Military Toxics Project 
v. EPA (No. 97-1342 (D.C. Cir. June 30, 1998) (slip op. pp. 18-20) 
(permanent deferral to another regulatory system also may be 
appropriate). As stated above, it appears that leachate derived from 
these newly-listed wastes will be adequately regulated under the CWA. 
The Agency is publishing this document in order to make this 
information available, and to receive comment on EPA temporarily 
deferring, while EPA assesses the permanent integration of the two 
regulatory schemes, the application of the new waste codes (K169, K170, 
K171, and K172) to landfill leachate that is generated and actively 
managed after the effective date of the four new petroleum listings, as 
long as all of the following conditions apply.
    First, the Agency is considering only whether to temporarily defer 
from RCRA regulation leachate from landfills that received and disposed 
one or more of the newly-listed petroleum wastes prior to the effective 
date of the listing (i.e., landfills that have historically disposed of 
these petroleum wastes, which if generated today would meet the new 
listing descriptions, but no longer accept these wastes). Second, this 
temporary deferral would apply to leachate that is defined as hazardous 
waste only by application of one or more of the new petroleum waste 
codes, i.e., leachate that is only defined as hazardous waste because 
it is derived from K169, K170, K171, or K172, and is not derived from 
any other listed waste, and does not exhibit any characteristic of 
hazardous waste. Third, the Agency would only temporarily defer from 
RCRA regulation leachate that is managed such that discharge is subject 
to regulation under 307(b) or 402 of the Clean Water Act (i.e., for 
indirect or direct discharges). This temporary deferral would apply to 
leachate from point of generation (i.e., when the leachate is first 
collected or ``actively managed'') to when it is discharged in 
compliance with 307(b) or 402 of the Clean Water Act.
    EPA is also considering whether to add a condition that would 
prohibit the placement of leachate on the land prior to discharge to a 
POTW or to other wastewater treatment systems. EPA is concerned that 
the storage of untreated leachate in land-based units, such as surface 
impoundments, may be of concern. On the other hand, the Agency does not 
wish to discourage effective treatment of the leachate in wastewater 
treatment systems that employ secure impoundments prior to discharge to 
surface water. To resolve this question, the Agency is seeking comment 
on the potential impact of such a condition on the treatment of 
leachate at landfills and other treatment facilities.
    Should the Agency proceed with a temporary deferral, such a 
deferral would most likely be implemented as a new exemption from the 
definition of hazardous waste under 40 CFR 261.4(b). The duration of a 
temporary deferral would probably be at least until the Agency 
completes the pending rulemaking under the Clean Water Act described in 
this document. After completion of the Clean Water Act rulemaking, EPA 
will consider whether to initiate a rulemaking for a permanent deferral 
(i.e., exemption), or alternatively, to remove the exemption and 
subject the leachate to Subtitle C regulation.

Information in the Docket and Request for Comment

    The EPA has placed in the docket summary information on leachate 
characterization submitted by one company that owns and/or operates 
over sixty non-hazardous waste landfills, and estimated costs 
reflecting Subtitle C management of the leachate (i.e., centralized 
waste treatment of leachate diverted from current management at POTWs). 
The EPA has also put into the docket a copy of the Office of Water 
background document entitled Development Document for Proposed Effluent 
Limitations Guidelines and Standards for the Landfills Point Source 
Category, EPA-821-R-97-022, January 1998.
    The Agency is interested in any comments on the narrow issue of the 
classification and management of leachate generated from landfills that 
disposed of one or more of the newly-listed petroleum wastes (K169-
K172) prior to the effective date of those listings, where the leachate 
is not defined as hazardous under RCRA for any other reason, and is (in 
particular) being managed pursuant to Clean Water Act requirements. The 
Agency also seeks comment on the possibility of the temporary deferral 
described in this document. EPA will not respond to comment regarding 
the general proposition that hazardous listings apply to previously 
disposed wastes that meet the listing description, nor will EPA reopen 
comments on the listings of these wastes, which are issued in a final 
rule elsewhere in today's Federal Register.

    Dated: July 17, 1998.
Elizabeth A. Cotsworth,
Acting Director, Office of Solid Waste.
[FR Doc. 98-19930 Filed 8-5-98; 8:45 am]
BILLING CODE 6560-50-P